Tasmania: New Mental Health Act 2013 to improve protections for persons with a mental illness

In Tasmania, the new and highly anticipated Mental Health Act 2013 has been given Royal Assent. The Act improves protections for mental health clients who are subject to treatment under the Act and provides far greater access to independent reviews of treatment through a Mental Health Tribunal.

Presently under the previous Act, a person may be treated without consent and may be detained without treatment. This has been highly criticised as being inconsistent with human rights or with the rights of persons with a mental illness.

The new Act comprises a number of key features to improve consistency with a human rights approach to persons with a mental illness:

• Decision-making capacity will be a key threshold benchmark for determining whether or not the Act will apply. A person with decision-making capacity is not able to be assessed, treated or detained against their will.

• The establishment of an independent Tribunal with authority to decide on treatment and treatment-setting in hospital and/or the community. Treatment orders made will be required to be reviewed regularly within prescribed timeframes.

• Clearly outlined clinician responsibilities and rights of consumers, families and carers, and simplified pathways for assessment, treatment and custody.

• The establishment of the statutory office of the Chief Civil Psychiatrist (CCP). Together with the Chief Forensic Psychiatrist the CCP can intervene directly with the assessment, treatment and care of patients and may distribute standing orders and clinical guidelines to inform the Act’s interpretation and application.

The topic of human rights of people with mental illness has also been highlighted in Victoria recently with a critical report released by the Victorian Mental Illness Awareness Council. The report highlighted the issue of patient safety in hospital, finding that out of 50 survey participants almost half had experienced sexual assault whilst an in-patient on a psychiatric unit. The report also found that 82 per cent of survey participants who reported a sexual assault were not assisted by nurses or doctors.

The Tasmanian Act commences on 1 January 2014 if not earlier proclaimed.

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