Chapter 7 Mental Health and Mental Capacity Law

Chapter 7

Mental Health and Mental Capacity Law

Chapters 7 & 8 Playlist

7.0 Introduction

There is no way around it. Mental illness continues to be stigmatised. Society has made considerable improvements in the care of people with mental health issues. Despite this, mental health is not discussed in a synonymous approach to physical health. Yet, one can inform the other. According to the Australian Institute of Health and Welfare “4.3 million people received mental health-related prescriptions in 2018-19”.^[1] The Parliament of Australia published in 2019 findings on Mental Health in Australia claiming 20% of the population experienced “a mental or behavioural condition in 2017–18”.^[2]

You will be familiar with the terms: anxiety, depression, psychosis, schizophrenia, delusions, hallucinations and other disorders related to mental health. What about homosexuality? Can it ever be said that homosexuality is a mental health issue? No, certainly not. Homosexuality on its own is not a mental illness. However, this was not always the view of mental health bodies responsible for mental health diagnosis. Students of CSB338, read on to see where we were but only half a century ago…

Michael K Sullivan wrote:

“Until the early 1970s the American Psychiatric Association (APA) classified homosexuality as a disease, based on Freudian concepts of arrested sexual development that lead to a loveless life. Homosexuality was originally classified as a mental illness in the APA’s Diagnostic and Statistical Manual (DSM). The classification was referred to as ego-dystonic homosexuality, or negative homosexual identity, characterized by guilt, shame, anxiety, and depression. … In December 1973, the APA ended the classification of homosexuality as a mental illness by removing it from the DSM.”^[3]

Homosexuality is therefore that rare thing in the history books, once both a crime and a mental illness. In little less than 50 years, homosexuality is no longer a crime and no longer a mental illness. How can something be one thing and then it’s not? What processes affect change of this kind? How does change occur? How can we think about things that it appears society was so fundamentally opposed? Homosexuality remains a crime in many jurisdictions globally. The continued stigmatising of homosexuality is a likely contributor to people experiencing mental health issues. Based on this, mental health bears some resemblance to a construct. Perhaps it is this that that informs its chequered history. From trephination to Victorian institutions located far from civilisation to electroconvulsive therapy (ECT) to big pharma to views that our connected yet disconnected environments contribute to mental health issues.^[4]

Mental health issues are a significant feature of the care provided in EDs and in the community. Ample justification for why there is an entire unit dedicated to mental health issues in the out-of-hospital environment. It is the purpose of this chapter to focus on legal and ethical issues in terms of mental health and mental capacity. Although it will be impossible to discuss legal and ethical aspects of mental health care without broader discussion of mental health and mental capacity.

7.1 How is Mental Illness Defined in Law

Section 10(1) Mental Health Act 2016 (Qld) defines a mental illness in Queensland as a condition characterised by a clinically significant disturbance of thought, mood, perception or memory. Section 10(2) Mental Health Act 2016 (Qld) defines what a mental illness is not:

(2) However, a person must not be considered to have a mental illness merely because—

(a) the person holds or refuses to hold a particular religious, cultural, philosophical or political belief or opinion; or

(b) the person is a member of a particular racial group; or

(c) the person has a particular economic or social status; or

(d) the person has a particular sexual preference or sexual orientation; or

(e) the person engages in sexual promiscuity; or

(f) the person engages in immoral or indecent conduct; or

(g) the person takes drugs or alcohol; or

(h) the person has an intellectual disability; or

(i) the person engages in antisocial behaviour or illegal behaviour; or

(j) the person is or has been involved in family conflict; or

(k) the person has previously been treated for a mental illness or been subject to involuntary assessment or treatment.

Contrast Queensland’s definition of a mental illness/disorder with the other states and territories. There are many similarities but there are also conspicuous differences:

• ACT
• New South Wales
• Northern Territory
• South Australia
• Tasmania
• Victoria
• Western Australia

Given Queensland’s definition, what other presentations could be a mental illness or mental disorder? What do you think the word clinically significant disturbance mean when determining whether you believe a person is exhibiting signs of a mental health issues?

Most patients with a mental illness in Australia are treated as voluntary patients. There may be some restrictions and expectations in relation to conform to treatment on the basis treatment is therapeutic and the patient is receptive to proposed measures. However, these patients are generally free to choose or reject treatment based on the same principles that a person with capacity has. Hang on, are you saying people with a mental illness can also have capacity? Yes, I am, and you must not conflate the two. It does not automatically follow that a person with a mental illness lacks capacity. Mental health and mental capacity are different concepts. A person with a mental illness may lack capacity and a person with a mental capacity can retain capacity. Mental illness is not an absolute condition that points to a reduction in autonomy. In determining whether a mentally ill person has capacity they are subject to the same test as any individual over the age of 18. More on this in section 7.2.

Some patients diagnosed as mentally ill are treated as involuntary. In that they are detained inpatients or mandated outpatients under community treatment orders. This is covered by treatment authorities in section 18 Mental Health Act 2016 (Qld):

(1) A treatment authority is a lawful authority to provide treatment and care to a person who has a mental illness who does not have capacity to consent to be treated.

(2) A treatment authority may be made for a person if an authorised doctor considers the treatment criteria apply to the person and there is no less restrictive way for the person to receive treatment and care for the person’s mental illness, including, for example, under an advance health directive.

(3) Key elements of the treatment criteria are that the person does not have capacity to consent to be treated and there is a risk of imminent serious harm to the person or others.

(4) The category of a treatment authority is—

(a) community, if the person’s treatment and care needs can be met in the community; or

(b) inpatient, if the person’s treatment and care needs can be met only by being an inpatient.

(5) If the category of a person’s treatment authority is inpatient, the person may receive limited community treatment, for a period of not more than 7 consecutive days, if authorised under this Act.

Treatment criteria is set out in section 12 of the Act:

(1) The treatment criteria for a person are all of the following—

(a) the person has a mental illness;

(b) the person does not have capacity to consent to be treated for the illness;

(c) because of the person’s illness, the absence of involuntary treatment, or the absence of continued involuntary treatment, is likely to result in—

(i) imminent serious harm to the person or others; or

(ii) the person suffering serious mental or physical deterioration.

(2) For subsection (1)(b), the person’s own consent only is relevant.

(3) Subsection (2) applies despite the Guardianship and Administration Act 2000, the Powers of Attorney Act 1998 or any other law.

Despite the Public Health Act 2005 (Qld) referring to capacity, the test for capacity is not found in the Public Health Act 2005 (Qld). It is found in the Mental Health Act 2016 (Qld). Or if you’re feeling adventurous, the dictionary definitions in the Guardianship and Administration Act 2000 (Qld) and the Powers of Attorney Act 1998 (Qld). Let’s pause any discussion on mental capacity for a moment and stick to discussion of legal and ethical aspects of mental health care. In terms of mental health legislation in Queensland you need to be familiar with the principles contained in the following sections from the Mental Health Act 2016 (Qld):

• Section 11
  • Meaning of involuntary patient
• Section 12
  • Meaning of treatment criteria
• Section 13
  • Meaning of less restrictive way
• Section 14
  • Meaning of capacity to consent to be treated

Any study of the history of mental health legislation will reveal a litany of abuse. We’ve already been introduced to one such case, despite the motives of the treating clinicians. Again, a repeat but for argument’s sake let’s call it consolidation:

This is also revealed in the case of Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 where Justice Kirby sitting in the NSW Court of Appeal stated at 322-323:

“Many reports of official bodies … have demonstrated the way in which mental health law can sometimes be used to control the behaviour of individuals merely to relieve family, neighbours and acquaintances from their embarrassment, rather than assist the individuals primarily concerned to be themselves. It is not necessary to go to the mental health laws of Hitler’s Germany or Stalin’s Russia to be reminded of the potential for misuse, or excessive use, of compulsory mental health powers. The court must be vigilante against such misuse or excessive use. One way to exhibit this vigilance is to insist that, if parliament is to justify enforced intrusion into the life of an individual, it must do so in very clear terms, and by affording those who assert their authority with very clear powers.” (emphasis added)

In the case of Hunter Area Health Service v Presland (2005) 63 NSWLR 22 police officers took Kevin Presland to hospital based on suspected deterioration in the patient’s mental health and was violent in nature. Presland was admitted as a voluntary patient to a public psychiatric hospital, the James Fletcher Hospital. Later that day he was discharged after been seen by a psychiatric registrar and discharged noting no psychotic illness. Later that day Presland killed his brother’s partner. Kevin Presland sued Dr Nazarian, the psychiatric registrar, on the basis the registrar was negligent in discharging him from the care of the hospital. A series of failures were revealed as a result that the case came before the courts, including a matter dear to my legal paramedic heart, documentation.^[5]

A fine line is traversed between respecting patient’s interests, their human rights and reconciling those interests within the context of public safety and protection. The case of Kracke v Mental Health Review Board [2009] VCAT 646 highlighted the need to test the compatibility of mental health legislation with human rights legislation.

“When a human right is breached, the individual is injured. Because of the broader role of human rights, society is injured as well. Human rights protect interests and values which society in Parliament considers to be fundamental, both to the individual and to the maintenance of democratic society based on the rule of law. Where human rights are breached, both the individual and society have a strong interest in the remedy of a declaration, in which inheres their final vindication.”^[6]

I am reluctant to reduce a 210 page case to a few lines but nevertheless, a factor in determining the legitimacy of decisions to limiting human rights must be based on justification and proportionality. In keeping with the language used in the Mental Health Act 2016 (Qld) but absent in the sections on mental capacity in the Public Health Act 2005 (Qld) the least restrictive way describes plans for treatment with resorting to deprivation of liberty. This is a challenging area for paramedics. Decisions on when to deprive a person based on suspected mental illness based on a lack mental capacity, and apprehended risk of harm to themselves or others, are notoriously difficult. When the Mental Health Act 2000 (Qld) was repealed and replaced by the Mental Health Act 2016 (Qld) the Emergency Examinations Order (EEO) allowing paramedics in Queensland to take a person to an authorised mental health service without their consent and be detained for six hours if their reasonably held belief was based on that:

(a) a person has a mental illness; and

(b) because of the person’s illness there is an imminent risk of significant physical harm being sustained by the person or someone else; and

(c) proceeding under division 2 would cause dangerous delay and significantly increase the risk of harm to the person or someone else; and

(d) the person should be taken to an authorised mental health service for examination to decide whether a request and recommendation for assessment should be made for the person.

EEOs no longer exist and have been replaced by the Emergency Examination Authority (EEA). Paramedics no longer use mental illness as the basis to detain, treat and transport and instead used mental capacity as the basis to transport a person without their consent to an approved hospital. So, it’s off the Public Health Act 2005 (Qld) we go but before we do, we must stay with the Mental Health 2016 (Qld) one last time as this is where we will find the legal test for capacity in Queensland.

7.2 What is Legal Mental Capacity

Need a reminder on the distinctions between mental illness and mental capacity? Remember Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290? Here’s a refresher:

This case is authority as well as setting out the common law test for capacity, codified in section 14 Mental Health Act 2016 (Qld):

(1) A person has capacity to consent to be treated if the person—

(a) is capable of understanding, in general terms—

(i) that the person has an illness, or symptoms of an illness, that affects the person’s mental health and wellbeing; and

(ii) the nature and purpose of the treatment for the illness; and

(iii) the benefits and risks of the treatment, and alternatives to the treatment; and

(iv) the consequences of not receiving the treatment; and

(b) is capable of making a decision about the treatment and communicating the decision in some way.

(2) A person may have capacity to consent to be treated even though the person decides not to receive treatment.

(3) A person may be supported by another person in understanding the matters mentioned in subsection (1)(a) and making a decision about the treatment.

(4) This section does not affect the common law in relation to—

(a) the capacity of a minor to consent to be treated; or

(b) a parent of a minor consenting to treatment of the minor.

If I haven’t said it before (I’ve said it before, I know I have) mental health is completely different to mental capacity. The case of Re C (1994) demonstrates a person can have a diagnosed mental illness and retain capacity if they meet the requirements of the test for capacity. Therefore, a person can have a diagnosed mental illness and lack capacity. Please do not presume that a person with a diagnosed mental illness lacks capacity.

“The question to be decided is whether it has been established that [the patient’s] capacity is so reduced by … chronic mental illness that [the patient] does not sufficiently understand the nature, purpose and effects of the proffered [treatment].”^[7]

Mental illness can reduce capacity, it does not necessarily follow that this is a certainty. Despite a reasonably held suspicion a patient has a mental illness, the test for capacity needs to be applied to establish entitlement to treat without the patient’s consent.

According to section 359 Mental Health Act 2016 (Qld) paramedics (ambulance officer) are an authorised person under the act. This entitles paramedics some powers under the Act. However, for paramedics in Queensland there is a less of a focus on mental illness than there is on mental capacity to informs decisions to treat and transport patients without their consent. Instead, the majority of powers paramedics are entitled to exercise in Queensland come from the Public Health Act 2005 (Qld). And this where we turn to now.

7.3 Emergency Examination Authority (EEA)

Section 157B Public Health Act 2005 (Qld) permits police and paramedics to detain and transport person:

(1) If an ambulance officer or police officer believes—

(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

(2) For the Police Powers and Responsibilities Act 2000, section 609(1)(a)(i), the police officer may consider advice received from a health practitioner about the person in forming a view as to whether there is an imminent risk of injury to a person.

(3) The ambulance officer or police officer may detain the person and transport the person to a treatment or care place.

(4) If the treatment or care place is a public sector health service facility that is not an inpatient hospital, the person may only be transported to the facility with the approval of the person in charge of the facility.

(5) If the person is detained and transported to a treatment or care place, other than a public sector health service facility, the person can not be detained at the place unless an Act otherwise requires.

Note—

See section 157E for detention in a treatment or care place that is a public sector health service facility.

(6) In this section—

inpatient hospital means a hospital where a person may be discharged on a day other than the day on which the person was admitted to the hospital.

My reading of the criteria drawn from the language used to apply an Emergency Examination Authority (EEA) requires a person to present with all the following:

• At immediate risk of serious harm due to a major disturbance caused by illness, disability, injury, intoxication or another reason
• The person needs to have an illness, or symptoms of an illness, that affects the person’s mental health and wellbeing
• The person is unable to understand the nature and purpose of the treatment for the illness
• The person is unable to understand the benefits and risks of the treatment, and alternatives to the treatment
• The person is unable to understand the consequences of not receiving the treatment
• The person is unable to make decisions in relation to proposed treatment
• The person is unable to communicate their decision in some way

The test for capacity is not located anywhere in the Public Health Act 2005 (Qld). There is an unconnected reference to capacity in the Guardianship and Administration Act 2000 (Qld). There is no mention of using section 14 Mental Health Act 2016 (Qld) as the basis as the test for capacity or reference to the common law test for capacity. Section 157B Public Health Act 2005 (Qld) appears to remove the requirement of a mental illness as the sole basis to detain and transport a person at immediate risk of serious harm. Why am I writing this? Good question. Just, you know, section 4 Public Sector Ethics Act 1994 (Qld) is all.

Given that understanding is a key component of possessing capacity, section 157C Public Health Act 2005 (Qld) states that paramedics must take reasonable steps to ensure the person understands that they are being detained and transported to an appropriate place of care. This, to my mind, may undermine the finding that the person lacks capacity if they do understand this information. Anyway, my job here isn’t to lobby for law reform but to tell you all about the legal definition of mental illness and mental capacity in Queensland. I remain to be convinced how the shift from mental health to public health legislation improves things for the people of Queensland. Perhaps it is on the basis it helps to ensure patients get help and support for which ever presenting complaint led to them to being detained by paramedics under the auspices of an EEA.^[8]

7.4 Human Rights Legislation and Mental Health and Mental Capacity Legislation

All people in Queensland have the right to liberty and security of person. The Human Rights Act 2019 (Qld) tells us that a human right may only be (section 8) limited to the extent that is reasonable and demonstrably justifiable in accordance with (section 13(2)):

(a) the nature of the human right;

(b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

(c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;

(e) the importance of the purpose of the limitation;

(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

(g) the balance between the matters mentioned in paragraphs (e) and (f).

When applying an EEA, paramedics need to be cognisant that the limitation of a person’s right is balanced against the purpose of the limitation. Remember the example of threatened suicide offered in s157B Public Health Act 2005 (Qld) well that one example is what chapter 8 is all about. Perhaps COVID has usurped all other news, but the enactment of human rights into the Queensland legislature remains a big deal. The case of Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 is an example of the intersection of mental health laws with human rights.

7.5 Other Powers

There are times when paramedics in Queensland will need the support of police to attend to the care of patients. Section 609(1)(a)(i) Police Powers and Responsibilities Act 2000 (Qld) permits police to enter a place to prevent offence, injury or domestic violence if a police officer reasonably suspects there is an imminent risk of either of the following happening at a place and there is a suspected injury to a person, damaging property or domestic violence is occurring. There will be times that force may be required to prevent harm from occurring or in the act of treatment and transport. Section 375 Mental Health Act 2016 (Qld) and section 157L Public Health Act 2005 (Qld) legitimise use of mechanical restrain or force where it is deemed necessary and proportionate. In addition to these powers there is our very dear legislative friend, section 38(1) Ambulance Service Act 1991 (Qld):

(1) An authorised officer, in providing ambulance services, may take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation; and

(b) to protect persons trapped in a vehicle, receptacle, vessel or otherwise endangered; and

(c) to protect themselves or other officers or persons from danger, potential danger or assault from other persons.

Danger is definitionally synonymous with immediate risk of serious harm. Paramedics have considerable powers to draw on when responding to mental health and capacity issues. Look at the considerable body of legislation discussed in this chapter. Then look at section 136 Mental Health Act 1983 (UK) and ask yourself which supports patients, the Queensland way or the UK way?

7.6 Advocacy in Mental Health Care

Advocacy in mental health care is aimed at reducing stigma and discrimination and promoting human rights.^[9] The powers given to paramedics in Queensland should not surpass the need to respect all patients and whatever decision is made is in keeping with best interests. As a profession we are better for our “partnership with mental health services, ethnic communities and other agencies to improve the quality, accessibility and appropriateness of services and promote the mental health and wellbeing of culturally and linguistically diverse communities in Queensland”.^[10]

Being an advocate for a patient means you are responding to them without judgement. You may recognise differences, but you do not let difference influence your treatment. Paramedics are not the sole HCP patients with mental health engage with. However, we may be the first HCP a patient interacts. We can help set-up the patient journey. It is never appropriate to refer to people experiencing mental health issues as either the mad, the bad or the sad. Drawing mental and physical health closer together can make the world of difference for patients already experiencing adversity. Being compassionate can impact our own mental health. This might mean you need to remind yourself as hard as it is sometime, it is a privilege to care for people in times of adversity leading to crisis. Be kind.

7.7 QAS Information

• Acute behavioral disturbance
• The suicidal patient
• The physically restrained patient
• Emergency Examination Authority
• Mental illness – The legal framework
• Transportation of persons under the Mental Health Act 2016

7.8 Final Word

7.9 Case Study

Odessa (17 – her 18th birthday is in 10 days’ time) has finally been diagnosed as a Type II Insulin Dependent Diabetic after 18 months of tests and she knows that her blood sugar levels are low, yet she gets in her car to run an urgent errand. Odessa successfully passed her driving test 1 month ago. En-route her vision blurs, she is no longer able to focus on the task of driving and she loses control of her car and she drives into the rear of a parked car. Odessa is the only injured party as there was no-one in the parked car. The noise of the collision alerts a man and a woman from a nearby house; they render aid and call an ambulance on behalf of Odessa.

Prakash and Ezra is the closest crew. Ezra assesses the patient and determines Odessa is not injured but does identify her blood sugar level is low. They treat Odessa’s hypoglycaemia with oral glucose and her condition improves. She states that she is insulin dependent; she took a lunchtime insulin dose but did not eat following the insulin administration due to the importance of running an errand, as stated above. She refuses transport to hospital stating that she still needs to run the errand and she will wait on scene for the tow truck drivers to arrive.

If left on scene her blood sugar could plummet again and there may be no-one to render aid while she lies unconscious waiting for the tow truck drivers. Ezra decides he is going to use an emergency examination authority (EEA) as a justification to transport Odessa to the nearest appropriate medical facility.

Does everyone need to calm down or is this what EEAs are meant for?

7.10 Podcast

Mental Health and Mental Capacity Law with Dannielle Cagliuso, Dr Lisa Clegg, Dr Polly Ford-Jones and Dr Ursula Rolfe

7.11 Further reading

Moritz, Dominique (ed), Paramedic Law and Regulation in Australia (Thomson Reuters (Professional) Australia, 2019) pp 205-236