The Independent Review of compulsory treatment criteria and alignment of decision-making laws

• Panel member biographies

  Justice Shane Marshall AM
  Chair

  Justice Marshall AM is a former judge of the Federal Court of Australia, a current Acting Judge of the Supreme Court of Tasmania and a Deputy Chairperson of the Victorian Racing Tribunal. He has spoken publicly about his lived experience of depression and mental health issues affecting members of the legal profession.

  Erandathie Jayakody

  Erandathie Jayakody is a mental health advocate and lawyer. She lives with ongoing mental health challenges. She combines her personal experience with her experience as a lawyer to bring a social justice lens to her work. She is passionate about advocating for a society that supports people living with mental health challenges to live autonomous and meaningful lives. She is a first-generation migrant from Sri Lanka.

  Flick Grey

  Flick Grey is a consultant, supervisor and trainer and proud member of the international consumer/survivor/Mad community. She has lived experience of involuntary treatment and is passionate about epistemic justice – thinking about distress in ways that are grounded in lived experience epistemologies (ways of knowing).

  Lisa Sweeney

  Lisa Sweeney supports family members who have accessed the public mental health system over many decades and have been subject to involuntary treatment. She has worked in public policy roles across the health and justice portfolios, and currently works in the non-government sector in youth mental health and psychosocial disability.

  Professor Richard Newton

  Professor Richard Newton has had a range of leadership positions in mental health services, a variety of not-for-profit community mental health organisations, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and is an active researcher. In each mental health service that he has been Clinical Director he has promoted values of social justice, equity, fairness and quality, and the rates of seclusion and restraint and the use of involuntary community treatment have reduced to the lowest levels in the state.

Terms of Reference - Independent Review of compulsory treatment criteria and alignment of decision-making laws

• Definitions

  In this document:

  Chair means the Independent Review panel member responsible for chairing panel meetings and the delivery of Independent Review milestones

  Department means the Department of Health

  Independent Review means the Independent Review of Victoria’s compulsory treatment criteria and alignment of decision-making laws that is the subject of these Terms of Reference

  Member means a person appointed to the Independent Review panel by the Minister. A reference to a member includes a reference to the Chairperson unless stated otherwise

  Minister means the Minister for Mental Health

  Secretariat means officers in the Department providing administrative support to the Independent Review panel

  ToR group means the Terms of Reference group appointed by the Department to develop the Terms of Reference

• Background

  In March 2021, the Royal Commission into Victoria’s Mental Health System handed down its final report. A key recommendation was that the Mental Health Act 2014 should be repealed and replaced with a new Mental Health and Wellbeing Act.

  The Royal Commission also recommended that the compulsory treatment provisions be simplified and clarified within the new Act, such that these provisions are no longer the defining feature of Victoria’s mental health laws (recommendation 42(f)).

  In addition, the Royal Commission set out a longer-term goal, that Victoria’s mental health laws be aligned over time with other decision-making laws, including the Guardianship and Administration Act 2019 and the Medical Treatment Planning and Decisions Act 2016, with a view to promoting supported decision-making principles and practices (Recommendation 56 (4)).

  As part of this alignment work, the Royal Commission said that the government should specifically consider:

  • allowing consumers to appoint a nominated decision-maker to make a substituted decision in the event that they do not have capacity to make a decision
  • making advance statements and decisions of nominated decision-makers binding in all but very limited circumstances.

  This review of decision-making laws was to occur as part of the 5-7 year review of the new Mental Health and Wellbeing Act.

  The development of the new Mental Health and Wellbeing Act commenced in 2021. From June-August 2021 a public engagement process was conducted which tested some key policy proposals. There was a range of diverse opinions about the proposals with no consensus on how to clarify and simplify the criteria for compulsory treatment.

  There was also strong support to bring forward the review of decision-making laws, to occur earlier than 5-7 years after commencement of the new Act.

  For this reason, in December 2021 the government announced an Independent Review of Victoria’s compulsory treatment criteria and the alignment of decision-making laws (the Independent Review).

  The Mental Health and Wellbeing Act 2022 (the Act) was passed by Parliament in August 2022 and received Royal Assent on 6 September 2022. The Act must commence no later than 1 September 2023.

  The new Act’s objective is to pursue the highest attainable standard of mental health and wellbeing for the people of Victoria and to promote conditions in which people can experience good mental health and wellbeing and recover from mental illness and psychological distress.

  The Act introduces new mental health principles and specific decision-making principles for compulsory treatment and restrictive interventions.

  These principles seek to embed supported decision-making, consumer autonomy and least restrictive practice. The principles also acknowledge that compulsory treatment and restrictive interventions may cause harm and specifically require that these treatments and interventions are not used unless the harm to be prevented is more significant than the harm that may result from their use.

  While compulsory treatment will operate within the framework and principles of the new Act, the criteria themselves largely remain unchanged from the Mental Health Act 2014. This is to enable in-depth consideration and review of these laws by the Independent Review.

• Membership

  The following people are appointed to be members of the panel by the Minister for Mental Health:

  • The Hon Justice Shane Marshall AM (Chair/legal representative)
  • Professor Richard Newton (clinical representative)
  • Flick Grey (consumer representative)
  • Erandathie Jayakody (consumer/legal representative)
  • Lisa Sweeney (carer representative)

• Development of these Terms of Reference

  It is important that the Independent Review is grounded by a range of perspectives, including lived and living experience and clinical perspectives.

  A group of community members dedicated to developing the Terms of Reference was recruited in July 2022 and consisted of consumers, carers, family members and supporters, workers in the sector and service providers. In addition to lived experience and professional experience, the group also brought experience and connections with diverse groups including Aboriginal, LGBTQIA+, disability and multicultural communities.

  Incorporating and embedding Aboriginal perspectives was a priority for the Terms of Reference group, recognising the vision of moving towards a Social and Emotional Wellbeing Framework.

  By working collaboratively and utilising co-design principles, the Terms of Reference group met over five workshops to build conditions, understand the project, discover guiding frameworks, principles, and engagement approaches, and consolidate these into a Terms of Reference that shapes the direction and operations of the Independent Review.

• Purpose

  The purpose of the Independent Review is to:

  • review the compulsory assessment and treatment criteria in the Act, with the aim of simplifying and clarifying these provisions
  • consider how the Act can be aligned with other decision-making laws, including (but not limited to) the Guardianship and Administration Act 2019, the Medical Treatment Planning and Decisions Act 2016 and the Powers of Attorney Act 2014, with a view to promoting supported decision-making principles and practices
  • make clear recommendations to government about how the compulsory assessment and treatment and decision-making provisions in the Act should be amended.

• Principles

  In completing the Independent Review, the panel must consider the following principles.

  Alignment with system reform

  The Independent Review will aim to align with other reforms in the mental health and wellbeing system. This means:

  • the Independent Review should be ambitious in its recommendations
  • recommendations should be flexible and adaptable, so that the law will work effectively both in the context of the current system, and the reimagined system that the Royal Commission envisaged
  • recommendations should support and enable the Royal Commission’s aims for a reduction in the use of compulsory treatment and the promotion of supported decision-making practices
  • the Independent Review should recognise that there is stigma associated with mental illness and compulsory treatment, and should aim to reduce stigma and discrimination in conducting its work and when making recommendations
  • recommendations should align with the objectives and principles of the new Act.

  Embedding lived and living experience

  Lived and living experience will be embedded in the Independent Review. This means:

  • the Independent Review should recognise that consumers are uniquely affected by compulsory treatment because compulsory treatment restricts a consumer’s human rights
  • the Independent Review should acknowledge the significant support that carers, families and supporters provide, and the role of relationships and families in promoting recovery and good mental health and wellbeing
  • the voices of consumers and families, carers and supporters should be actively sought out, respected and heard
  • the voices of those with recent experience of the mental health and wellbeing system should be prioritised.

  Plain language and accessibility

  Recommendations should promote language that is clear and easy to understand. This means that:

  • people with lived and living experience should be able to easily understand and exercise their rights
  • staff in the mental health workforce should be able to easily understand their responsibilities
  • the law should promote consistency in decision-making about compulsory assessment and treatment.

  Least restrictive

  The principles in the new Act acknowledge that compulsory treatment may cause harm and specifically require that these treatments are not used unless the harm to be prevented is more significant than the harm that may result from their use.

  As such, the law should prioritise and promote supported decision-making and least restrictive practice. This means that:

  • supported decision-making practices should be tried before compulsory treatment is considered
  • compulsory assessment and treatment should have a clear purpose, which is reflected in the criteria
  • the law should promote consumer autonomy, self-determination, collaboration, empowerment, and dignity of risk
  • consumers should be supported to have choice and control regarding assessment, treatment care and support, and to the greatest extent possible their views, values and preferences should be respected
  • the law should promote an intersectional trauma-informed and person-directed approach which encourages positive relationships between consumers and mental health service providers, promotes consumer autonomy in decision-making about mental health treatment and care, and improves mental health and wellbeing outcomes, which may in turn reduce the use of compulsory treatment.

  Human rights

  The Independent Review will respect, uphold and promote human rights. The Independent Review will recognise that compulsory treatment restricts a person’s human rights and ensure that any restrictions on human rights are compliant with the procedure set out in the Charter of Human Rights and Responsibilities, which requires that limitations on rights are reasonable, necessary, justifiable and proportionate.

  Diversity and inclusivity

  The Independent Review will recognise and consider the needs of different groups within the community. This means:

  • to the extent possible, the panel should strive to achieve agreement between consumers, carers, families, supporters and service providers on how to change the law
  • the independent Review will consider the systemic factors that contribute to the overrepresentation of certain groups within the community on compulsory orders.

  The Independent Review will consider how the law impacts individuals, and in particular, the following groups:

  • people who experience higher rates of compulsory treatment
  • people who have experienced multiple instances of compulsory treatment
  • people with different types of mental illness, noting that this impacts the type of treatment they receive and the setting in which that treatment is provided
  • people with disabilities
  • people with co-occurring health conditions, for example infectious diseases
  • people with co-occurring substance use or addiction
  • people who are neurodiverse
  • people of different ages
  • people of different sexes, gender identities and sexual orientations
  • people of different cultures, ethnicities, religions, faiths, or spiritualities
  • people in regional, rural and remote areas
  • people with caregiving responsibilities
  • people who are involved with other systems, including the criminal justice, family law, and/or child protection systems
  • people at risk of incarceration due to mental illness should they not receive timely treatment and care
  • people who have experienced violence, including family violence or sexual assault.

  Recognition of First Nations people

  The Independent Review will recognise, respect and take into consideration the unique needs and perspectives of First Nations people. This means:

  • the Independent Review will recognise and respect the importance of self-determination for First Nations people
  • the Independent Review will recognise that for First Nations people, social and emotional wellbeing encompasses cultural, spiritual, physical, emotional, and mental wellbeing of the individual, family, and community
  • the Independent Review will consider how the law impacts First Nations people, noting that they are overrepresented on compulsory orders, and distrust in the medical system due to the historical and ongoing impacts of colonisation, abuse, racism, discrimination, and intersectional trauma means they are less likely to engage with mental health services earlier on in their recovery
  • the Independent Review will acknowledge the importance of cultural safety in the provision of mental health and wellbeing services and the role connection to culture and community plays as a protective factor in supporting good social and emotional wellbeing for First Nations people.

• Scope

  In completing the Independent Review, the panel must answer the following questions:

  • how can the compulsory assessment and treatment criteria in the Act be simplified and clarified?
  • how can the Act be aligned with other decision-making laws, including (but not limited to) the Guardianship and Administration Act 2019, the Medical Treatment Planning and Decisions Act 2016 and the Powers of Attorney Act 2014?

  Promoting human rights

  The Independent Review should investigate how the law can better align with other charters and conventions, including:

  • the Victorian Charter of Human Rights and Responsibilities
  • the United Nations Convention on the Rights of Persons with Disabilities
  • the United Nations Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment
  • the United Nations Optional Protocol to the Convention against Torture
  • the United Nations Declaration on the Rights of Indigenous Peoples.

  Reducing compulsory treatment

  In completing the review, the panel should investigate how the use of compulsory treatment can be reduced, including:

  • how the criteria can be revised to support the aim of reducing the use of compulsory treatment and promoting least restrictive practice
  • in what circumstances substitute decision-making should be permitted
  • what safeguards on the use of compulsory treatment and substitute decision-making should apply
  • how the Act can enable a more holistic consideration of a person’s needs and circumstances when making decisions about compulsory assessment and treatment.
  • This includes incorporating an understanding of the person’s unique needs and circumstances, including their:
    • co-occurring health needs
    • co-occurring substance use or addiction
    • social circumstances
    • history of trauma
    • previous responses to mental health treatment
    • strengths
    • personal recovery goals
    • relationships and supports
    • caring responsibilities and the needs of their dependants
    • barriers to accessing mental health and wellbeing services
    • protective factors, such as connection to culture and community
  • whether the Act needs to be changed to better enable access to legal assistance and representation in relation to compulsory assessment and treatment.

  Decision-making capacity

  In completing the review, the panel should consider how a person’s decision-making capacity impacts compulsory assessment and treatment under the Act, including:

  • how the decision-making capacity provisions in the Act can be revised such that they:
    • promote the presumption of decision-making capacity, dignity of risk and the principle that capacity is decision specific
    • enable effective assessment of a person’s decision-making capacity
  • how the provisions in the Act can be improved to ensure people are supported to make their own decisions about mental health treatment and care, wherever possible
  • whether compulsory treatment and substitute decision-making should be allowed when a person has decision-making capacity
  • whether the Act should require assessment of a person’s decision-making capacity to be undertaken by an independent person.

  Medical treatment

  In completing the review, the panel should investigate how the approach to decision-making about mental health treatment and medical treatment for patients can be better aligned in the Act.

  Advance statements and nominated decision-making

  In completing the review, the panel should consider how binding advance statements and nominated decision-makers could be provided for in the Act, including:

  • in what circumstances an advance statement should be binding
  • how consumers could be empowered to appoint a person to make decisions on their behalf in the event that they do not have capacity to make a decision, and:
    • how such an appointment aligns with other decision-making laws that exist in Victoria
    • what should happen if a person does not appoint a decision-maker and whether one should be automatically appointed
    • in what circumstances would the decision of a nominated decision-maker be binding
  • what safeguards should apply to advance statements and nominated decision-makers.

  Involving families, carers and supporters

  In completing the review, the panel should consider how the law can recognise, promote and actively support the role of families, carers and supporters in the care, support and recovery of consumers, including considering:

  • when carers, family members and supporters should be consulted and involved in decisions relating to compulsory assessment and treatment
  • what information should be provided to carers, family members and supporters when decisions relating to compulsory assessment and treatment are made
  • for First Nations people, when family, kin, elders, traditional healers and other respected members of the person’s community should be consulted and involved in decisions relating to compulsory assessment and treatment
  • for First Nations people, what information should be provided to families, kin, and supporters when decisions relating to compulsory assessment and treatment are made.

  Accountability

  In completing the review, the panel should investigate how accountability in relation to the compulsory assessment and treatment provisions of the Act can be further improved, including considering:

  • obligations relating to the communication of information about rights to consumers, families, carers and supporters
  • how information about decision-making in relation to compulsory assessment and treatment is recorded.

• Approaches and methodologies

  In completing the Independent Review, the panel will:

  • consider similar laws in other jurisdictions, including both Australian and international jurisdictions
  • complete a literature review, including national and international best practices, consumer-led research and literature, and First Nations-led research
  • consider relevant quantitative and qualitative data, including data relating to compulsory treatment, supported and substituted decision-making, and use of decision-making mechanisms such as advance statements of preferences and nominated support persons
  • consider submissions made and other evidence presented to the Royal Commission into Victoria’s Mental Health System relevant to compulsory treatment.

• Stakeholder Engagement

  In completing the Independent Review, the panel will:

  • undertake an engagement process that is purposeful and allows for meaningful contribution from stakeholders
  • support people to engage with the Independent Review effectively by offering a range of engagement options
  • engage with a broad cross section of the Victorian community to ensure an extensive range of diverse views are heard, including seeking the views of:
    • consumers, carers, families, and supporters
    • the mental health and wellbeing workforce, including professionals across all levels of mental health service provision, those providing publicly funded mental health and wellbeing services and alcohol and other drug services
    • relevant professional or peak bodies
    • people who may be difficult to reach, such as those in inpatient units (such as Secure Extended Care Units) or aged care, forensic or security patients, people with dual disability, children and young people, First Nations people, or people who live in regional, rural and remote areas
  • take an intersectional trauma-informed approach to engagement, including providing support to people with lived and living experience where appropriate
  • take an approach to engagement that is safe, supportive, inclusive, accessible, and which addresses any power imbalances
  • follow best practice approaches to engagement with people with lived experience
  • be guided by First Nations people regarding the most appropriate engagement method, including how to engage with Aboriginal people with lived and living experience, Aboriginal elders, family members, Aboriginal health services and Aboriginal Liaison Officers, to ensure engagement is culturally safe
  • provide updates on the progress of the Independent Review and feedback to stakeholders on how their input has been incorporated into the Independent Review.

  If the Independent Review establishes an advisory group, at least half of its members should be people with lived and living experience of compulsory treatment or of supporting someone with lived or living experience of compulsory treatment.

  As far as possible, the group should reflect equal representation by consumers and carers, families and supporters. The group should also contain people with clinical, legal, advocacy and academic expertise.

  First Nations people with lived and living experience should guide the panel regarding the most appropriate mechanism to ensure First Nations perspectives are represented through any advisory group established.

  In engaging with stakeholders, the Independent Review should consider the engagement model outlined in ‘Authentic engagement: A conceptual model for welcoming diverse and challenging consumer and survivor views in mental health research, policy, and practice’.

• Conduct of the Independent Review

  Without limiting the scope of the Independent Review, the panel is directed to:

  • conduct the Independent Review as the panel considers appropriate, subject to the requirements of procedural fairness, including by adopting any informal and flexible procedures and practices
  • have regard to the desirability of conducting the review without unnecessary cost or delay
  • conduct the review in accordance with these Terms of Reference and all other relevant laws.

• Reporting

  The panel is responsible for providing timely, high-quality advice on the matters stated in this Terms of Reference in a form that satisfies the Minister and the Department.

  The panel will provide a final report in writing, from the Chair to the Minister, outlining their findings and recommendations. The final report must be provided no later than 12 months after the review is commenced.