- An objective of the Mental Health and Wellbeing Act 2022 is to provide for comprehensive, compassionate, safe and high-quality mental health services that promote the health and wellbeing of people living with mental illness or psychological distress.
- The Act promotes voluntary treatment in preference to compulsory treatment wherever possible. It requires that mental health and wellbeing services are provided to a person living with mental illness or psychological distress with the least possible restriction of their rights, dignity and autonomy with the aim of promoting their recovery and full participation in community life.
- The Act sets out the circumstances in which treatment can be provided to a person, including electroconvulsive treatment and neurosurgery for mental illness.
- The Act introduces new rights based decision-making principles for treatment and interventions.
- Decision makers must give proper consideration to these principles when exercising a power or making a decision in relation to a patient’s assessment, treatment and care.
The Mental Health and Wellbeing Act 2022 (the Act) regulates and includes safeguards in the use of:
Decision making principles for treatment and interventions
The Act introduces new rights-based decision making principles for treatment and interventions to which decision makers must give proper consideration when making decisions in relation to a patients assessment or treatment or the use of restrictive interventions.
Care and transition to less restrictive support principle
Compulsory assessment and treatment are to be provided with the aim of promoting the person's recovery and transitioning them to less restrictive treatment, care and support. To this end, a person who is subject to compulsory assessment or treatment is to receive comprehensive, compassionate, safe and high-quality mental health and wellbeing services.
Consequences of compulsory assessment and treatment and restrictive interventions principle
The use of compulsory assessment and treatment or restrictive interventions significantly limits a person's human rights and may cause possible harm including:
- serious distress experienced by the person
- the disruption of the relationships, living arrangements, education or employment of the person.
No therapeutic benefit to restrictive interventions principle
The use of restrictive interventions on a person offers no inherent therapeutic benefit to the person.
Balancing of harm principle
Compulsory assessment and treatment or restrictive interventions are not to be used unless the serious harm or deterioration to be prevented is likely to be more significant than the harm to the person that may result from their use.
The will and preferences of a person are to be given effect to the greatest extent possible in all decisions about assessment, treatment, recovery and support, including when those decisions relate to compulsory assessment and treatment.
Obligations to give proper consideration to the decision-making principles
Anyone other than the Mental Health Tribunal, who has authority to make a decision or exercise a power in respect of the care or treatment of a patient must give proper consideration to the decision making principles when making a decision or exercising a power. This includes:
- when seeking informed consent
- when making a treatment decision or providing consent to medical treatment on behalf of a patient where the patient does not have capacity to provide informed consent
- when applying for authorisation to perform electroconvulsive treatment or neurosurgery for mental illness
- when authorising or exercising other powers related to the use of restrictive interventions
- when exercising powers related to assessment orders, court assessment orders, temporary treatment orders, or treatment orders.
Proper consideration is the same test that applies to consideration of rights under the Charter of Human Rights and Responsibilities Act 2006. In practice what this means will vary according to the context.
In circumstances where a decision is urgent or needs to be made under pressure, ‘proper consideration’ will be different to circumstances where there is more time for a decision or where the impact of the decision may be particularly significant.
Proper consideration does not mean that individual decisions must always be informed by legal advice, or that a sophisticated formula or process must be followed, but consideration of the decision making principles must be more than a token, tick box or formality.
Reviewed 19 September 2023