Carers and Decision making under the Mental Health Act
The Act seeks to maximise a person’s participation in decisions made about their treatment, care and support. It has provisions that empower a person to have their friends, family and carers involved too.
The main provisions are:
- Nominated person
- Advance Agreements
- Advance Consent Agreement
My Rights My Decisions – this toolkit by the Mental Health Consumer Network provides an opportunity for mental health consumers to let their views, wishes and decisions be known in advance. It allows them to express their wishes while they have decision-making capacity (with support, if required). It is recommended that consumers fill out this kit with their carer, family or support person when they are well so their preferences are documented.
Mental Health Act 2015 – the Mental Health Act 2015 contains the legal framework for nominated persons, advanced agreements and advance consent agreements.
A person receiving treatment, care and support under the Act has the right to nominate a person to help them make decisions, express their views and receive information about their treatment, care and support. This person is known as a ‘Nominated person’.
This may be a friend, a carer, a family member, or other person you trust and feel comfortable with. A person does not have to have a nominated person, but it is recommended because of its benefits.
The main roles of a nominated person are to:
- support the person to make decisions
- advocate for the person’s decisions and rights
- be consulted in decisions affecting the person (for example if an application is made for a mental health order)
- receive information about the person
- help person to express their views
- attend the ACT Civil and Administrative Tribunal (ACAT)
A person can appoint a nominated person by filling out Part 1 of the My Rights My Decisions Kit or by providing a nomination in writing while they have decision-making capacity. The person nominated must agree to this role. The person who has a nominated person and has decision-making capacity may end the nomination by telling a member of their treatment team, orally or in writing, that they do not want the nominated person to continue to perform that role.
Under the Mental Health Act a person has the right to make an Advance Agreement which sets out:
- Their mental health treatment preferences
- contact details for people they wish their treating team to know about (e.g. partner, carers, family, friends)
- what should happen at home with family, pets, bills and so on, if the person become unable to look after these things
- Any relevant personal information, such as languages spoken, or other health conditions that they wish their treating team to know about.
People wishing to make an Advance Agreement fill out Part 2 of the My Rights My Decisions Kit.
The information in the form will be considered by treating teams if a person has reduced decision-making capacity in the future.
Stephen the 36 year old man we met earlier, who has lived with psychosis since his teens, who has been making steps forward with his recovery. He has recently prepared an Advance Agreement. In the agreement, Stephen has appointed his brother as his nominated person. He has indicated that though he is agreeable to a hospital admission, he would prefer to go to the Step Up Step Down service if he shows signs of becoming unwell – the earlier the better. Stephen outlines the warning signs of mental health crisis that he, his brother, GP or psychologist might notice. He provides the contact details for each of these people and agrees for them to be contacted. He also details that he wants his brother to contact his boss to explain that he will be away from work for a period. Finally, Stephen has provided the number of boarding kennel he uses for his cat, Supremo, and requests that his brother organise for Supremo to stay there.
Advance Consent Directions
An Advance Consent Direction sets out what a person wants to happen if in the future they reduced decision-making capacity. This can include:
- the treatment, care, support, medications and procedures a person consents to
- the treatment, care, support, medications and procedures a person does NOT consent to
- what supports the person finds empowering and disempowering practices during a mental health crisis
- things that cause distress and are traumatising for the person
- what can be done to help de-escalate a crisis and to help a person feel safe
- the people a person wants to be contacted
- the people a person does NOT wish to be contacted
- A person’s consent or non-consent to Electroconvulsive Therapy
The information in the form comes into effect if a person has reduced decision-making capacity in the future.
Note: A person’s consents may be over-ridden in a mental health emergency or if a person treating team applies to the ACT Civil and Administrative Tribunal.
People wishing to make an Advance Agreement fill out Part 3 of the My Rights My Decisions Kit.
It has now been 20 months since Zahra’s last admission to the Mental Health Unit at Canberra hospital. She is determined that further involuntary admissions are avoided. She has been discussing this with her peer worker and care coordinator for several months and has made a decision to prepare both an Advance Agreement and an Advance Consent Agreement. Zahra uses the Advance Agreement to appoint her sister as her nominated person and to provide instructions for the care of pet bird and fish. She also explains that she is a vegetarian and is allergic to nuts. In the Advance Consent Agreement outlines the following:
She consents to admission but wants this to be early and voluntary.
Zahra outlines the warning signs of her mental health deteriorating and agrees that if her sister, mother, GP and care coordinator notice them they can contact Access Mental Health on her behalf.
- Zahra consents to the current medications she is on being increased.
- Zahra does not agree to any new medications being given until the proposed change can be discussed with both her and her sister.
- Zahra does not give consent to ECT.
- Zahra outlines what can be done to help her feel safe and to help deescalate the distress she is experiencing including offering her a cup of green tea and a sandwich; finding somewhere quiet and giving her reassurance that the distress will pass; helping her to listen to her the playlist on her phone that she has compiled to help her calm; offering her. Blanket if she is cold; reassuring her that her pets will be OK and her instructions about hem will be followed.
- Zahra gives consent to mother knowing about what is happening and being contacted.
- Zahra does not give consent to her neighbours being contacted.
Zahra is hopeful that these agreements will help her stay well and if any additional assessment and treatment is required, it will happen early and so avoiding admission and treatment against her will.
Making an application for an application to the ACT Civil and Administrative Tribunal (ACAT) for a mental health assessment order
Assessment orders are made by the ACT Civil and Administrative Tribunal to enable a person to be assessed to determine whether the person has a mental illness or mental disorder and, if so, identify any treatment, care or support that might help.
Anyone can apply to ACAT for an assessment order, including:
- the person with a mental illness or mental disorder
- a family member
- a carer
- a member of the public
- a health professional.
To apply for an assessment, you need to complete and lodge an:
- assessment order application form [DOC 46KB] and
- information sheet [DOC 42KB].
The person making the application will need to tell ACAT:
- whether they believe the person has a mental illness or mental disorder (and if so, give the reasons)
- the reasons why they are making the application
- information about past mental health history (if known)
- if there is an actual or potential risk to the person’s health or safety (and if so, explain the risk)
- if the person is causing or is likely to cause serious harm to others
- whether the application process is likely to substantially increase the risk to health or safety or the risk of serious harm to others
- the medical basis, if known, for the application.
When making an assessment application, be aware that:
- a copy of the assessment application and any supporting documentation will be given to the person who is the subject of the application
- ACAT registry staff may contact you to ask for more information.
A hearing will normally be held by ACAT to decide whether or not to make an assessment order.
If ACAT makes an assessment order and the person does not attend for the assessment, ACAT may make a removal order that the person be taken to an approved mental health facility for assessment.
Once an assessment has occurred, ACAT receives a copy of the assessment report. ACAT will consider this report and any other information provided, and may hold a hearing to decide whether to make a mental health order. Notices will be sent if a hearing is scheduled.
Making an application for an assessment order – Meet Alex
Alex is 31 and has experienced episodes of psychosis since he was 22 and still at university. For last two and half years his mental health has been stable. During this time he has been employed in a plant nursery and has lived in a share house. His friends have noticed a gradual change in Alex over the last two months – he is isolating himself, not eating, mumbling a lot and saying strange things about people he thinks are following him to work. Having tried to talk with Alex about it, one of his friends contacted his parents who live in Adelaide. They began to facetime Alex more regularly. During the last two weeks both his parents and his friends have become increasingly more concerned. Alex quit his job suddenly, is now not sleeping much at all and keeping his friends awake with loud music. He is also talking about life being too hard and not worth living. His parents considered various options and decided to make an application for an assessment order. The ACAT made an order which led to Alex being admitted to the mental health unit at Canberra Hospital. After 10-12 days Alex was able to return home with clinical follow up from the local community mental health team. His boss has offered Alex his job back as soon as he is ready.
Ask Cam, The Carer Navigator
Can I become a nominated person? Yes. However, only the person receiving treatment, care, or support under the Mental Health Act can appoint someone as a nominated person. A carer cannot appoint him or herself.
If I become a nominated person, can I stop being in that role? Yes, you can. You can end your nomination by telling a member of the treating team either orally or in writing that you are no longer able to continue to perform the functions of a nominated person.
What are the benefits of Advance Agreements and Advance Consent Directions? They empower people while they are well and have decision making capacity to express their views and wishes about future treatment, care or support. They also provide a legal framework for a person to include key family, carers and friends in their future treatment, care and support.
What’s the difference between an Advance Agreement and/or an Advance Consent Direction? An Advance Agreement outlines a person’s treatment preferences and details practical arrangements a person wants in place. An Advance Consent Direction outlines for example what a person specifically consents to and does not consent to concerning treatment, care, support, medications and procedures.
Can a person who is not under the Mental Health or receiving treatment from ACT Health make an Advance Agreement and an Advance Consent Direction? Yes. A person may have made an Advance Agreement or Advance Consent Direction with a treating team external to ACT Health, e.g. their GP or other private clinician. If the person chooses to provide a copy of their Advance Agreement or Advance Consent Direction to MHJHADS they can email it to the Tribunal Liaison Officer (TLO) at TribunalLiaison@act.gov.au
How do I make an application for a mental health assessment order? To make an application for an assessment order you, you need to complete and lodge with the ACT Civil and Administrative Tribunal:
- assessment order application form [DOC 46KB] and
- information sheet [DOC 42KB].
Contact details of the ACAT are:
- Phone (02) 6207 1740
- Email firstname.lastname@example.org