Advance statements of preferences

Advance statements of preferences are written by a person saying what treatment, care and support they prefer should they become subject to an order that authorises compulsory assessment or treatment.

An advance statement of preferences is a way of ensuring that treatment, care and support decisions better align with a patient’s preferences.

Making an advance statement of preferences

A person can make an advance statement of preferences at any time, provided they understand what the advance statement of preferences is, the consequences of making it and how to revoke it.

An advance statement of preferences can be made using the advance statement of preferences form, but will be valid as long as it:

• is signed and dated by the person making the advance statement of preferences
• is witnessed by another adult
• includes a statement signed by the witness stating that:
  • in their opinion, the person understands what an advance statement of preferences is, the consequences of making it and how to revoke it
  • in their opinion, the person appears to be making the statement of their own free will
  • they observed the person sign the advance statement of preferences
  • they (the witness) are an adult.

A person does not have to consult with their treating team, carer or family when making an advance statement of preferences. However, it can be a good idea to involve the treating team, family and carers so they are aware of the person’s treatment preferences and know that the advance statement of preferences exists and where it can be found.

Contents of an advance statement of preferences

An advance statement of preferences sets out a person’s treatment, care and support preferences and may include information about:

• treatment they find effective
• treatment that has been less effective in the past
• their views and preferences about electroconvulsive treatment
• support preferences to assist them to communicate and participate in decision-making
• preferences about who may be provided with their health information, including the name and details of any person to be informed that the person is receiving compulsory assessment or treatment
• the name and contact details of their nominated support person or advocate
• preferences about who may make a complaint to the Mental Health and Wellbeing Commission on their behalf.

Changing or revoking an advance statement of preferences

It is recommended that a person considers whether the preferences expressed in their advance statement of preferences remain current. An advance statement of preferences cannot be amended once made. If a person’s treatment preferences have changed, they must make a new advance statement.

An advance statement of preferences does not expire unless a new advance statement of preferences is made, or the person revokes their advance statement.

A revocation of an advance statement of preferences must:

• be in writing and state that the advance statement is revoked
• be signed and dated by the person revoking the advance statement of preferences
• be witnessed by an adult
• include a statement signed by the witness stating that -
  • in their opinion, the person understands the consequences of revoking the advance statement of preferences including that it will no longer be in effect for the purposes of the Act
  • in their opinion, they are revoking the statement of their own free will
  • they observed the person revoking the statement sign it
  • they (the witness) are an adult.

Designated mental health services must make reasonable efforts to give effect to an advance statement of preferences

The Act requires a designated mental health service to take all reasonable steps to find out if a patient whose assessment or treatment they are responsible for has an advance statement of preferences in effect.

The steps that should be taken will depend on the circumstances but may, for example, include:

• asking the patient, their nominated support person or their family, carer or other supporter if the person has made an advance statement of preferences
• checking the person’s file to see if there is a record of an advance statement of preferences having been made.

If the person does have an advance statement of preferences in effect, the designated mental health service must ensure all reasonable efforts are made to give effect to the statement.

The Act also requires an authorised psychiatrist to have regard to the views and preferences expressed in a patient’s advance statement or preferences when making a treatment decision, including a decision to seek approval for the use of electroconvulsive treatment (ECT).

Decision makers will also have regard to an advance statement of preferences in making a range of other decisions, including when making a temporary treatment order or treatment order; giving or reviewing a second psychiatric opinion; granting leave of absence; authorising restrictive interventions; or disclosing a person’s health information without consent.

Overriding treatment preferences in an advance statement of preferences

An authorised psychiatrist may only make a treatment decision that is not in accordance with the treatment preferences expressed in a patient’s advance statement of preferences if:

• they are satisfied that the patient’s preferred treatment is not clinically appropriate; or
• the patient’s preferred treatment is unable to be provided by the designated mental health service, despite all reasonable efforts being made to provide that preferred treatment.

If an authorised psychiatrist makes a treatment decision that is not in accordance with the treatment preferences set out in an advance statement of preferences, the authorised psychiatrist must inform the patient and provide reasons for that decision.

Those reasons must be given in writing within 10 business days to the patient and the patient’s nominated support person if they have one.

Transitional arrangements

An advance statement that was made before 1 September 2023 that has not been revoked will be treated as an advance statement of preferences under the Mental Health and Wellbeing Act 2022 and will remain in effect unless it is revoked or a new statement is made.

Forms