Working with the Mental Health Act

Transcription

1 Working with the Mental Health Act Misha Henaghan, Senior Associate and Aimee Credin, Senior Solicitor Obtaining a Compulsory Treatment Order 1 Who may apply? Anyone over 18 years with a belief a person is suffering from mental disorder (Section 8A). 2 Procedure (Section 8B): Application to Director of Area Mental Health Services for assessment. 3 Criteria: 3.1 Attach medical certificate by clinician (examination within 3 days). 3.2 Personally seen within 3 days. 3.3 Relationship/association. 3.4 Grounds for belief a person may be suffering from mental disorder. 4 Three stage assessment process: 4.1 Preliminary assessment by clinician (s 9 of MHA): right of refusal; Suffering mental disorder - on reasonable grounds 4.2 First period of assessment and treatment: First period up to five days; Within five days, decide if further assessment and treatment required or release from compulsory status. 4.3 Second period of assessment and treatment: If still suffering from mental disorder and further assessment or treatment required, certificate of further assessment for up to 14 days (s 12); Within further 14 days, must issue certificate of final assessment (s 14(1)) and release from compulsory status or apply for Compulsory Treatment Order (s 14). 5 Application for Compulsory Treatment Order: 5.1 Application to District Court. 5.2 Heard and determined by Family Court Judge where practicable (s 17). 5.3 Judge to examine patient and consult with clinician and one other health practitioner (s 18) _1

2 5.4 If Judge considers patient is fit for release, may order immediate release from compulsory status (s 18). 5.5 Hearing of application: 6 Outcome of application Patient to be heard and call evidence (s 20); t open to public (s24). 6.1 Two types of orders (s 28): Community treatment order; Inpatient order. 6.2 Orders for up to six months (s 33). 6.3 Presumption of community treatment order unless adequate treatment in community cannot be provided. 6.4 Community Treatment Order: Can seek inpatient order at any time but not more than twice in six month period. 6.5 Inpatient Order (s 30): Discharge from hospital if at any stage clinician considers can be treated adequately as an outpatient. 6.6 Must undertake formal clinical reviews of patients' condition within 3 months after the order and thereafter at intervals of no longer than 6 months (s 76). 6.7 Within 14 days prior to expiry of order: Clinician can review patient status under s 76 and seek Court extension of Compulsory Treatment Order for six months; Clinician can extend for a second six month period and such extension will remain in effect indefinitely unless and until release from compulsory status. 6.8 At any time patient must be released if considered fit for release by responsible clinician (s 35). 6.9 Treatment is compulsory for the first month only, after that require (s 59): Informed consent; An independent psychiatrist (not the responsible clinician) determines that the treatment is necessary; or the treatment is for an emergency and there isn t time to get the patient s consent _1 2

3 Challenging a Compulsory Treatment Order 7 Application to review patient's condition during three stage assessment to District Court (s 16): 7.1 By patient or on behalf of patient (including by welfare guardian principal caregiver or other treating medical practitioners, for example General Practitioner). 7.2 Review conducted by Family Court Judge where practicable. 7.3 Any time during assessment including first period of assessment and second period of assessment (s 16(1)). 7.4 Judge must examine patient and consult with clinician and one other health practitioner as soon as practicable. 7.5 If Judge is satisfied patient is fit to be released must release from compulsory status immediately. 7.6 Inquisitorial process. Usually no lawyers present. 8 Mental Health Review Tribunal review patient subject to Compulsory Treatment Order (s 79): 8.1 Application by patient or on behalf of patient (including by welfare guardian principal caregiver or other treating medical practitioners, for example General Practitioner). 8.2 Review of condition of patient. 8.3 Certificate of Tribunal Review - must release patient if satisfied fit to be released from compulsory treatment status. 8.4 May appeal against Review Tribunal decision not to release patient. On application, Court required to review the patient's condition and s 16 applies (i.e. must examine patient etc). 9 Criteria for release - is 'no longer mentally disordered or, is still mentally disordered but fit to be released from the compulsory status'. 10 'Mental disorder' defined under MHA as 'abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it 10.1 poses a serious danger to the health or safety of that person or of others; or 10.2 seriously diminishes the capacity of that person to take care of himself or herself.' _1 3

4 11 Examples of successful s 16 reviews: 11.1 Waitemata District Health Board v EFY [2013] NZFC Re O [1993] NZFLR Examples of unsuccessful s 16 review: Director of Area Mental Health Services v STR (16/9/05, Judge Boshier, DC Auckland CAT84/02) 13 Judicial Inquiry in High Court under s 84: 13.1 High Court on own motion or on application of any person, order district inspector to examine any person determined in a hospital as an inpatient to report on any matter the Judge thinks fit; 13.2 Order discharge from hospital forthwith if: Person is detained illegally; or Is fit to be discharged Example of cases under s 84: Waitemata Health v Attorney General [2001] NZFLR The eleven basic rights of mental health patients 14 Section 64 to 74: 14.1 Right to information on rights as a patient (s 64) 14.2 Respect for cultural identity (s 65) 14.3 Right to suitable treatment (s 66) 14.4 Right to be informed about treatment (s 67) 14.5 Right to be informed in case of visual/audio recordings (s 68) 14.6 Right to independent psychiatric advice (s 69) 14.7 Right to legal advice (s 70) 14.8 Right to company EXCEPT when seclusion appropriate (s 71) 14.9 Right to receive visitors and make telephone calls (s 72) Right to receive letters and postal articles (s 73) Right to send letters and postal articles (s 74) 15 Breach of rights process (s 75) _1 4

5 Using restraints and seclusion appropriately 16 Restraint: 16.1 Current Best practice under Health and Disability Services (Restraint Minimisation and Safe Practice) Standards (2:2: Safe Restraint Practice): 16.2 Move away from use of restraint in all forms unless unavoidable Criteria: Must happen in safe and respectful manner. Clinical decision. t a treatment. Must document each use of restraint in register Chemical restraint Dementia: family must be made aware and given opportunity to challenge Example of inappropriate use of restraint in a secure dementia unit: 100HDC Seclusion: 17.1 Section 71 of MHA: Right to company qualified when seclusion is appropriate: only where, and for as long as, it is necessary for the care or treatment of the patient, or the protection of other patients; only in a room or other area that is designated for the purposes by or with the approval of the Director of Area Mental Health Services; with the authority of the responsible clinician; in an emergency, by nurse of health practitioner (otherwise only by responsible clinician); and the duration and circumstances of each episode of seclusion to be recorded in register Specific type of restraint only used in acute psychiatry. t in residential setting - e.g. rest homes Best practice under Health And Disability Services (Restraint Minimisation and Safe Practice) Standards (NZS :2008): Seclusion Criteria: Risk of danger to self of others. Never as punishment. Therapeutic purposes? R v Ashworth Hospital Authority [2005] UKHL 58: 'unwelcome necessity of last resort' Inappropriate use of seclusion by clinicians: Decision 11HDC _1 5

6 Findings of breach of Code (Decision 02HDC08692) Possible employment implications (Hume v Capital Coast Health Limited 4/12/1995 WT _1 6

7 Compulsory assessment and treatment 1 Application form Section 8A Application for assessment Section 8 Medical certificate Section 8B Assessment examination Section 9 Certificate of preliminary assessment Section 10 First period of assessment and treatment (five days) Section 11 Does patient appear to be Section 10(1) Release from compulsory status Certificate of further assessment Section 12 Second period of assessment and treatment (14 days) Does patient appear to be Section 13 Section 12(1) Certificate of final assessment Section 14 Is the patient Section 14(1) Application for compulsory treatment order Final period of assessment and treatment pending application (14 days) Section 15 1 Ministry of Health; Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act; Figure 1, page _1 7

8 Process for making Compulsory Treatment Order 2 Application for compulsory treatment order Section 14 Judge must examine patient within 14 days of application Section 18 Once examination has taken place Judge may adjourn for up to one month Section 15(2) Consult with responsible clinician and at least one other health professional Court procedure provided by sections applies Section 18(4) Is the patient Section 27(1) Is a compulsory treatment order necessary? Section 27(3) Release from compulsory status Can the patient be treated adequately as an outpatient? Inpatient treatment order Section 28(2) Community treatment order Expiry of order after six months Is the patient mentally disordered? Section 76(3) Exception: The order made subsequent to a second six month order is of indefinite duration Section 34(4) Responsible clinician may make application to extend order Section 34(2) 2 Ministry of Health; Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act; Figure 2 page _1 8

9 Clinical and judicial review of patients under Compulsory Treatment Order 3 First clinical review must occur within three months of making order and every six months thereafter Section 76(1) Certificate of clinical review Section 76(3) Is the patient mentally disordered? Section 76(3) Community treatment continues with further clinical reviews six-monthly Option for application to Mental Health Review Tribunal Section 79(1) Certificate of Tribunal review Section 79(7) Is the patient Section 79(7) Release from compulsory status Compulsory treatment order continues Option for appeal Tribunal s decision to the District Court Section 83(1) Judge will decide whether to grant the application Section 16(1C) Judge examines patient in person Section 16(2) Is the patient Section 16(5) Judge consults with responsible clinician and at least one other health professional Section 16(4) Compulsory treatment order continues 3 Ministry of Health; Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act; Figure 3 page _1 9