Obtaining consent for non-psychiatric treatment of persons detained under mental health legislation in Australia and New Zealand: is there cross-jurisdictional consistency?

Abstract

Objective:

It is increasingly recognised that persons with mental illness experience physical health issues at greater rates than the general population and that there are significant barriers to accessing appropriate treatment. One less obvious barrier to appropriate care may be the law. This review examines the legal regimes within Australia and New Zealand that regulate consent for medical and surgical treatment for persons detained under mental health legislation. The review begins with a brief overview of concepts of consent and capacity then examines the law with regards to consent for non-psychiatric treatment for persons detained in psychiatric facilities. The complexity and cross-jurisdictional consistency is considered and potential future directions and possibilities for reform are discussed.

Conclusion:

Examination of the different laws regarding consent for medical or surgical treatment for persons admitted to psychiatric facilities are complex and demonstrate lack of consistency across jurisdictions. Reform in this area might be considered to achieve greater consistency and clarity for both health professionals and consumers.

Keywords

substitute decision-making consent capacity

Get full access to this article

View all access options for this article.

References

Royal Australian and New Zealand College of Psychiatrists. Keeping body and mind together: improving the physical health and life expectancy of people with serious mental illness, https://www.ranzcp.org/Files/Publications/RANZCP-Keeping-body-and-mind-together.aspx (2015, accessed 28 April 2017).

Australian Law Reform Commission. Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124). Australian Government, https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_124_whole_pdf_file.pdf (2014, accessed 8 November 2017).

Wright

Gibbons v.

(1954) 91 CLR 423

Northridge v. Central Sydney Area Health Service (2000) NSWSC 1241.

Secretary, Department of Health and Community Services v JWB and SMB (1991) 175 CLR 218 (Marion’s Case)

Mental Health Act 2014, (Victoria, AU). Available from: http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be/0001F48EE2422A10CA257CB4001D32FB/$FILE/14-026abookmarked.pdf (2014, accessed 7 October 2017).

Guardianship and Administration Act 1995 (Tasmania, AU). Available from: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1995-044 (1995, accessed 7 October 2017).

Guardianship and Administration Act 2000 (Queensland, AU). Available from: https://www.legislation.qld.gov.au/view/pdf/2013-08-29/act-2000-008 (2000, accessed 7 October 2017).

Guardianship and Administration Act 1990 (Western Australia, AU). Available from: https://www.slp.wa.gov.au/statutes/swans.nsf/(DownloadFiles)/Guardianship+and+Administration+Act+1990.pdf/$file/Guardianship+and+Administration+Act+1990.pdf (1999, accessed 7 October 2017).

10.

Guardianship and Management of Property Act 1991 (Australian Capital Territory, AU). Available from: https://www.legislation.act.gov.au/a/1991-62/ (1991, accessed 7 October 2017).

11.

Mental Health Act 2009 (South Australia, AU). Available from: https://www.legislation.sa.gov.au/LZ/C/A/MENTAL%20HEALTH%20ACT%202009/CURRENT/2009.28.AUTH.PDF (2009, accessed 7 October 2017).

12.

Mental Health and Related Services Act 1998 (Northern Territory, AU). Available from: http://lexisweb.lexisnexis.com.au/Read-Legislation.aspx?s=nt&f=nt_act_1998-63 (1998, accessed 7 October 2017).

13.

Guardianship Act 1987 (New South Wales, AU). Available from: https://www.legislation.nsw.gov.au/inforce/580b32d3-f8fd-4a1f-dc87-c6d1f165a95b/1987-257.pdf (1987, accessed 7 October 2017).

14.

Mental Health Act 2007 (New South Wales, AU). Available from: https://www.legislation.nsw.gov.au/inforce/bb9dde66-bc52-ea95-89d4-8a3c5dd9507b/2007-8.pdf (2007, accessed 7 October 2017).

15.

Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (New Zealand). Available from: https://www.hdc.org.nz/your-rights/about-the-code/code-of-health-and-disability-services-consumers-rights/ (1996, accessed 7 October 2017).

16.

United Nations General Assembly (2006) Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106, Annex I, http://www.refworld.org/docid/4680cd212.html (2006, accessed 20 April 2017).

17.

United Nations Committee on the Rights of Persons with Disabilities. Available from: General Comment No 1 (2014), Article 12: Equal Recognition before the Law, 11^th session, UN Doc CRPD/C/GC/1, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?OpenElement (2014, accessed 7 October 2017).

18.

Mental Capacity Act 2005 (UK). Available from: https://www.legislation.gov.uk/ukpga/2005/9/contents (2005, accessed 7 October 2017).

19.

Mental Health Act 1983 (UK). Available from: https://www.legislation.gov.uk/ukpga/1983/20/contents (1983, accessed 7 October 2017).

20.

Consent to Medical Treatment and Palliative Care Act 1995 (South Australia, AU). Available from: https://www.legislation.sa.gov.au/LZ/C/A/CONSENT%20TO%20MEDICAL%20TREATMENT%20AND%20PALLIATIVE%20CARE%20ACT%201995/2015.03.28/1995.26.AUTH.PDF (1995, accessed 7 October 2017).

21.

Guardianship and Administration Act of 1986 (Victoria, AU). Available from: http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt2.nsf/DDE300B846EED9C7CA257616000A3571/CBE1D00615581929CA25776100214AB3/%24FILE/86-58a063.pdf (1986, accessed 7 October 2017).