Is legislative reform translating into recovery-orientated practice and better protection of rights?

Since 2013, all Australian jurisdictions, except the Northern Territory, have reformed their mental health legislation with the twin aims of better facilitating recovery-orientated practice and better protecting our patients’ human rights (Callaghan and Ryan, 2016). However, the extent to which those reforms have realised these aims remains unclear.

Vine et al. (2019) compared the outcomes of patients placed on community treatment orders (CTOs) under Victoria’s 1986 mental health legislation in the period 2008–2010 with the outcomes of patients placed on CTOs under the state’s 2014 legislation 6 years later. Among other findings, on average, patients placed on CTOs under the 2014 legislation had shorter CTOs, spent fewer days on any sort of involuntary order and their CTOs were less often repeated. Based on their findings, the authors conclude that the reformed legislation has been ‘successful in its intent to reduce the use and duration of compulsory orders’.

While it may be true that the Victorian legislative reforms caused these changes, as the authors themselves note, numerous other factors may have contributed to the differing outcomes between the two time periods. A gradual depletion of funding of the Victorian mental health sector in the intervening years must have had an impact. Perhaps, there was an impact due to the increasing understanding that the effectiveness of CTOs is modest at best.

Mental health act reform will only have a direct impact on our patients’ lives if a number of factors hold true. First, those who are charged with responsibilities under the legislation – primarily psychiatrists, psychiatric registrars and members of mental health tribunals – must become aware of the changes. While we may have confidence that tribunal members will come to know of the reforms, making the diaspora of psychiatrists and trainees aware is considerably more challenging. Second, members of these groups must come to understand what the changes mean and, finally, they must change their behaviour as a result of this knowledge and understanding.

A recent Victorian Supreme Court case (PBU & NJE v Mental Health Tribunal [2018] VSC 564) has provided evidence that at least some members of the Victorian Mental Health Tribunal (VMHT) did not understand what the legislative changes meant as they applied to the assessment of decision-making capacity. This is extremely concerning because the need to assess the decision-making capacity of people with mental illness was a key element of the Australia-wide reforms aimed at protecting patients’ rights (Ryan et al., 2015). If Tribunal members, many of whom have legal training, are misunderstanding the capacity test, then how often are psychiatrists and trainees, who apply the test at the frontline, getting it wrong?

The case concerned two patients for whom the VMHT had granted an application to undergo electroconvulsive therapy (ECT). Under Victoria’s 2014 Mental Health Act, the VMHT cannot grant such an application if the person is competently refusing ECT (s 93). The patients both claimed that their refusal of ECT was competent and appealed the VMHT decision, first to the Victorian Civil and Administrative Tribunal (VCAT) and then to the Supreme Court on the grounds, among other things, that the decision makers had misapplied the legal test for capacity.

The test for decision-making capacity under the Victorian Mental Health Act is very similar to the common law test that applies throughout Australasia and the test that is articulated in Australia’s other reformed mental health acts. Under the common law test, an adult is presumed to have decision-making capacity, but that presumption can be rebutted if it can be shown that as a result of a disturbance of mental function, the person is unable to either comprehend and retain the information relevant to the decision or use and weigh that information (Hunter and New England Area Health Service v A [2009] NSWSC 761).

The court found that VCAT (and presumably the VMHT and the patients’ psychiatrists) had misapplied the ‘use or weigh’ arm of test which is widely acknowledged as the arm most difficult to interpret (Ryan et al., 2016). (While the common law arm of the test is usually expressed as the ability to use and weigh the relevant information, the Victorian Act formulates this as an ability to use or weigh. It is not clear whether this makes any difference to the test at all, but certainly nothing turns on this issue here).

In the first patient’s case, VCAT had determined that he did not have capacity because ‘he did not accept or believe, or have insight into, the diagnosis of his mental illness’ (para. 279). Noting that it is common for people with or without mental illness to deny or diminish their illness and the need for treatment, the judge, Bell J, said that while lack of acceptance, belief or insight may be relevant when determining whether a person has decision-making capacity, it is only one consideration and not determinative of that issue. In fact, the patient did accept that he had a mental illness for which he needed non-ECT treatment, but VCAT gave this little weight.

In the second patient’s case, VCAT determined that she did not have capacity because ‘she had not actually given careful consideration to the advantages and disadvantages of ECT’ (para. 280). However, Bell J stated that it was not necessary for people with or without mental illness to give, or be able to give, ‘careful consideration to the advantages and disadvantages of the treatment’. Nor was it necessary that they make, or be able to make, a rational and balanced decision. To have capacity, it was enough that the person be ‘able to make and communicate a decision in broad terms as to the general nature, purpose and effect of the treatment’.

A lack of insight is not the same as a lack of capacity, though it will likely be an important factor to consider (Ryan et al., 2015). To have capacity, it is not necessary to give careful consideration to a treatment’s advantages and disadvantages. There is no way of knowing how common these sorts of misunderstandings or misapplications of the law are among clinicians and tribunal members, but there is no reason to think that these were isolated incidents.

To return to our original focus on CTOs, many Australian jurisdictions have introduced reforms that would make it either impossible or very unusual to place a person under a CTO or to continue a CTO if he or she was competently refusing treatment. Since people on CTOs are, at least, well enough to receive treatment in the community, we might expect that many of them would have decision-making capacity or rapidly regain it. Therefore, the recent legislative reforms should have led to a significant decline in the number of people subjected to such orders. To date however, notwithstanding the findings of Vine et al., evidence for this decline is scant (Light, 2019). There is reason to fear that psychiatrists’ and tribunal members’ misunderstandings of the capacity test may be proving to be a significant barrier to implementing the reforms that our parliaments have legislated and that our patients rightly crave.