Upcoming review of the NSW Mental Health Act!

A review of the NSW Mental Health Act (2007) (MHA) is required in 2012 under section 203 of that Act.  This affords a chance to examine the current model for the delivery of mental health services in NSW and, if deemed necessary, to amend it. This includes the Mental Health Review Tribunal (MHRT), which supervises and regulates cases of involuntary treatment. 

The requirement to review this legislation coincides with the release of a number of relevant reports.  The Report of the Law and Justice Standing Committee of the Legislative Council on Opportunities to consolidate tribunals in NSW (March 2012) foreshadowed the possibility of the absorption of both the MHRT and the Guardianship Board within a consolidated ‘Super-Tribunal’.  This recommendation was made with the proviso that there would be specialist divisions within the ‘Super-Tribunal’ which would possess the necessary expertise to carry on the work of these two tribunals.

The Mental Health Drug and Alcohol Office (MHDAO) also recently authorised an external review of the work of Mental Health Review Tribunal, which was carried out by the consultancy firm Communio. The report, titled Evaluation of the Efficiency and Cost of the Mental Health Inquiry System Report was published on 30 January 2012. The report explicitly recommends that an alternative model for the Tribunal, and for mental health treatment more generally, should be explored. A recent academic work, Australian Mental Health Tribunals – Space for Fairness, Freedom, Protection and Treatment by Carney and others supports this recommendation

This echoes the 2010 NSW Auditor General’s (AG) Performance Audit of Mental Health Workforce in NSW, which drew attention to the concentration of mental health staff in in-patient facilities and, in comparison, the slow growth of community-based services. Community-based treatment is preferred by consumers and carers and the AG found that growth and enhancement of community mental health services is vital to the sustainability of mental health service provision in NSW.

Community Treatment Orders (CTOs) could be utilised by the MHRT to facilitate involuntary treatment in the community.  One possible change to the MHA would be to make CTOs an explicit and preferred legal alternative to inpatient involuntary treatment under the MHA.

The Minister’s has stated the objective of introducing an appeal mechanism against refusal to admit, which will require careful consideration to be incorporated into the current system.  Unlike the current situation in which orders for involuntary treatment are the only available option for the MHRT, the upcoming review to the Act could allow the Tribunal to make a more general finding that a person requires treatment and support, so that people are able to require services to be delivered to them, even if these services remain ‘voluntary’.

In addition, this will be the first opportunity to review the implementation of the primary carer rules since their introduction in 2007.  ARAFMI has welcomed this innovative legislation but has also noted some issues with its application in practise, including:

·         how these nominations should be made,

·         when they should be made (currently, the nomination of a Primary Carer is only permitted when the patient’s judgement has become so impaired that they become subject to involuntary treatment and could lack ‘capacity’ to make legally binding decisions);

·         who should make nominations when the person is too unwell to do so on their own account;

·         when their withdrawal of a nomination should be accepted and when it should be ignored;

·         how many primary carers can be nominated by a person;

·         a lack of clarity regarding the rights which should be afforded to nominated primary carers while nominations are in force; and

·         whether an central on-line Register of Primary Carers, maintained by the authorised medical officers but accessible to all registered mental health care providers and Health staff, to provide a definitive source of information regarding Primary Carer nominations could answer at least some of these issues.

Another issue to be considered is the advent of the new NSW Mental Health Commission (scheduled to commence operations in 2012).  In particular, the role the Commission will play in the governance of the system and the institutions under it is yet to be determined in detail. A Mental Health Commission is mentioned in both the Communio review and Carney’s book as having a role in regard to the MHRT and the MHA.