Royal Children’s Hospital, Melbourne
Integrated Mental Health Program
Royal Children’s Hospital
First Floor, South East Building
Flemington Road, Par
Phone: (03) 9345 4133
Fax: (03) 9345 5763
28 February 2009
Community Consultation Panel
Mental Health Act Review
Mental Health and Drugs Division
Department of Human Services
GPO Box 4057,
Submission from the Royal Children’s Hospital Integrated Mental Health Program.
This submission is written from the perspective of using the Victorian MHA with children and
adolescents. It does not address all questions raised in the Consultation Paper on the Review of the
Mental Health Act (1986). Historically, most young people under the age of 18 years receive
“voluntary” mental health care, under the authority of their parents and guardians who consent to the
child‟s treatment.1 We note that there is considerable ambiguity about the respective rights of
parents and older children in current legislation, and think that this weakens parental authority, but
this goes beyond the issue of MHA reform. We support reviewing the Act, following the publication
of the Charter of Human Rights and Responsibilities and the International Convention on the Rights
of Persons with Disabilities.
Because mental illness can so seriously distort perceptions, cognitions and judgments, we believe
that is essential to provide involuntary treatment and care, but to also provide appropriate
protections for this vulnerable population. It may seem optimal to embed the Act within broader
capacity legislation, as capacity may also be impaired by developmental factors, illness and other
factors. However, as broadening the scope of the review may greatly extend the time, it seems more
practical to focus on legislation for assessing and treating mental illness.
Question 2 asks about principles, objectives and functions in the Act. We think it may be useful to
recognize a broad principle of “development” in acquiring competence and capacity to consent.
Other laws accept that children gradually develop the wisdom and skills to make reasoned
judgments in their own long-term best interests. During this development, we make their parents
responsible for giving substituted consent, assuming that they have greater competence, although
this is not usually tested. Many children are thought to have some capacity to consent from the age
of 14 years or before, and authors such as Pearce, 2 suggest that this may be more reliably
assessed using checklists. It may be practically and heuristically useful to legislate that children
probably have some capacity from 14 to 18 years of age, when they gain full adult rights, and that
(1) this capacity should be tested, and (2) these children should be given relevant information and
be involved in the decision, although (3) guidance will be required for managing situations where
parents consent but children refuse.
Question 3 asks how to define mental illness. In addition to identifying criteria for mental illness
based on accepted classification systems, the grounds for involuntary assessment or intervention
must include (1) impairment in perception, cognition (including memory) and volition, (2) increased
Birleson P (1996) Legal rights and responsibilities of adolescents and staff in Victorian Child and Adolescent Mental Health
Services. Journal Australian and New Zealand College of Psychiatrists 30:805-812.
Pearce J (1994) Consent to treatment during childhood. British Journal of Psychiatry 165: 713-716.
MHS Review Submission 2009 Page 1 of 5
risk of harm to self or others, (3) professional judgment that the illness requires treatment for the
person‟s health or safety, that cannot be provided in a less intrusive way, and (4) client inability or
refusal to consent to voluntary treatment because of the mental illness. Exclusions should probably
continue to include personality disorders, and untreatable disorders such as Autism, but could
probably include some cases of severe substance use disorder.
We note that it is not uncommon for section 9 to be employed in Hospital Emergency Departments
currently, possibly to facilitate transfer to other services. There are incidences of aggressive and „out
or control‟ young people presenting to EDs, some of whom are only 11 years of age. This practice of
using the Act with children may be associated with inadequate training, although this may be
mitigated by increased mental health clinicians attached to EDs. Medical staff using section 9 should
be obliged to specify reasonably detailed grounds for believing the person suffers from a mental
Question 7 asks about how to determine capacity to consent. This matter is complex in the case of
minors, whose information processing, comprehension and decision-taking does not develop in a
linear manner; and whose competence may be affected by emotion, situation and social context.
Capacity to consent theoretically requires a person to function as an agent who (a) has the
competence and information to make considered decisions; (b) understands the illness and its
probable course and effects with no treatment; (c) understands the risks and benefits of treatment;
(d) understands treatment alternatives and their risks and benefits; (e) has knowledge of the health
service and the treating professionals; and (f) is able to manage their emotions, within their values
and context. While some adults may have difficulty with this, due to language, cultural or cognitive
reasons, we generally assume that they have capacity, and that they will act in their child‟s best
For treatment in CAMHS, explicit consent from a child or adolescent is often not sought, as parental
consent is often viewed as adequate, unless there is dispute between child and parent, when the
child‟s views will be explored so that they may be considered. This seems appropriate. Where young
people do not have capacity for consent, but are thought to require inpatient care because they are
at significant risk to themselves or others, the MHA may not be used when parents consent, and the
child accepts this because they see no alternative. In cases where the parents/guardians do not
support admission, or the health professional believes they are not acting in their child‟s best
interests, then the Children, Youth and Families Act (2005) may be used, although there are
limitations concerning children over the age of 15 years. Current ambiguity is unhelpful, and there is
a need to determine who has final responsibility and authority to decide action. In general, health
professionals, parents and adolescents, would prefer there to be greater clarity in the laws
concerning the rights of 15-17 year olds and would like greater guidance.
Question 10 asks about the seriousness and immediacy of “risk” in the grounds for involuntary care.
We believe that a requirement for the specification of risk to be “imminent” is likely to restrict
treatment by increasing dispute about the validity of the prediction of risk, or its immediacy.
However, criteria should include an expectation that there is “current and foreseeable risk”, of
“serious harm” to the person‟s health, safety or welfare or to the safety of other persons”. “Serious”
will therefore include the risk of death. The concepts of “significant” and “serious” seem to allude to
the same things, but it may be beneficial to provide examples of serious harm in the Act, which
might include risk of accidental or purposive physical injury, malnutrition, inanition or death. It is also
reasonable to include a specification that “treatment is available, which is likely to alleviate the
symptoms or effects of the mental disorder or prevent it from worsening”.
Question 12 asks how the Act should address the grounds of “least-restrictive manner”. We believe
it is appropriate to emphasize that the grounds for involuntary treatment in the MHA must minimize
compulsion and limitation of freedom, where this is feasible. However, rights to safety must be given
priority over other rights, such as freedom of movement in civil communities, and rights to medical
care will sometimes necessarily involve compulsion or restriction, when reason and judgment are
impaired, and the risk of foreseeable harm from deliberate or inadvertent action increases.
Questions 13-17 invites comment on several matters, including the rights of children and young
people who do not have capacity to consent due to their mental illness, when parents or guardians
may consent to these treatments for their children. It would seem logical and consistent if parents
MHS Review Submission 2009 Page 2 of 5
could consent for both psychiatric and non-psychiatric treatment for their children, because of their
children‟s level of maturity and lack of capacity. There is comment on page 23 that children receiving
„voluntary‟ care sanctioned by their parents may be denied the safeguards provided by the MHA. We
note this also applies to children receiving acute care under parental consent, who are not thought
to be disadvantaged by this. In practice, few young people are placed on involuntary mental health
treatment orders, and our experience has been that parents have looked after their children‟s
interests. The issues raised in questions 18-23 rarely involve children or adolescents up to 17 years
of age, and are not addressed here.
Chapter Four highlights the importance of patient participation in treatment and care, and we agree
that patients and their carers should be partners in treatment and care when possible. This means
providing all relevant parties with available information about health risk factors, illnesses and their
effects, and about available treatments, costs and potential benefits. We believe that there are
benefits in doing this, but note that the process may be time-consuming and has costs, especially
with individuals with neuro-developmental difficulties and educational and social disadvantage.
Providing written reports and materials to clients has also cost implications, which do not seem to be
fully considered in health service planning. Second opinions also have cost implications. However,
we accept that it is necessary to ensure maximum protection of the rights of vulnerable clients,
especially during involuntary treatment, which may require higher costs in order to provide adequate
explanation, review, reporting and accountability mechanisms, including independent second
opinions and independent support persons.
We note differences between the model of care used in CAMHS and the Adult MHS model of care.
The CAMHS model of care acknowledges that young people depend psychologically, socially and
legally on their parents. Thus, CAMHS clinicians work actively with parents and families, and expect
that parents will consent to treatment, receive information and explanation, review care and arrange
second opinions on behalf of their children. Unlike Adult MHS, CAMHS are not funded by the Mental
Health and Drugs Division of DHS to employ consumer and carer consultants. This is inequitable,
but is consistent with the lack of parity in per capita funding for children, compared to adults
(children and adolescents are funded at half the rate of adults). However, independent consumer
and carer consultants, employed through an independent body, such as the Victorian Mental Illness
Advisory Council, could provide an important advocacy and support role for voluntary and
involuntary children and young people clients, in a state-funded service system. This would be
especially valuable for involuntary clients. We have no view about a nominated person scheme.
Questions 27-29 ask about how patients can be helped to exercise their rights of involvement in
treatment planning, and how treatment plans can be improved. We believe that all patients (and
carers in the case of minors) should receive a written statement of their rights and responsibilities in
treatment and be given opportunity to discuss these with the treating doctor. We also support the
requirement for evidence-based and collaborative care, where this is possible, and for treatment
plans to be reviewed by the multi-disciplinary treating team. This has relevance to second opinions.
While, the costs of this have been mentioned, there is merit in considering the provision of a
independent consultant psychiatric review and second opinion within the process of the Mental
Health Review Board review of all involuntary orders.
Chapter Five concerns electro-convulsive therapy, which is rarely used in adolescents. Current
licensing, regulation and monitoring arrangements seem adequate. A mandatory second opinion is
sufficient for the occasions when adolescents are considered for ECT.
Chapter Six concerns restraint and seclusion. Most CAMHS have not used mechanical restraint
historically, but we agree that the application of these devices should be regulated consistently in
the health care system, including Emergency Departments. The clients presenting in ED are not
infrequently interpersonally violent and aggressive, or emotionally aroused and liable to undertake
impulsive dangerous actions, including property destruction and flight. This behaviour may be
transient or persistent. It may be due to delirium and confusion states associated with brain trauma
or disorder, or metabolic disturbance or poisoning, as well as with mental illness or substance use
that impairs perception, cognition and intention. Healthcare professionals must be able to maintain
the safety of patients, others and themselves.
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It is not always possible to predict how long it will take for aggressive clients to settle, and when
restraint or seclusion may be ceased. This means that it is illogical to require specification of the
length of the procedure at the outset. It is not always possible to know the reason or mechanism for
the problem behaviour, until assessment is completed or the patient is known. Therefore, restraint or
seclusion should be supported, as a last resort, for the least period of time required to ensure safety,
and should be applied with strategies aimed at assisting the person to regain the capacity to safely
manage their own behaviour and stop threatening others. Seclusion is different from restraint, in that
it removes a person from the context of their problem behaviour, which includes specific persons,
interactions or patterns of interaction. Isolation increases opportunities for reflection, reviewing
interpersonal transactions, and learning.
Continuous observation may undermine this learning in seclusion, and is not necessary. This is
especially the case when a client gains a sense of power from controlling the time and attention of
others. Within CAMHS, voluntary “time-out” under direction, brief seclusion or more extended
seclusion, are used in a hierarchy of responses to encourage reflection, learning and improved self-
control. This occurs concurrently with psychological and biological treatments, with clients who have
deficits in social skills, emotional regulation and problem-solving. It may be done safely with
intermittent observation, at a frequency related to the perceived degree of risk. For clients who are
thought likely to require seclusion or restraint, it seems appropriate for the authorized psychiatrist to
specify the grounds for this, the observation periods, the review periods, the indicators of readiness
for release, and maximum duration. They should also review and endorse all incidents within 24
hours, and all incidents of restraint and seclusion should be reported, monitored and benchmarked.
Children and adolescents are physically, but not mechanically restrained in Victorian CAMHS. A
toddler may lose emotion and behaviour control during a trantrum, and be at risk of harm through
impulsive action. Physical restraint may be necessary, and this is predictably followed by increased
protest and threat, a period of distress and then recovery into a more chastened state, where they
re-engage in social activity. Older children and adolescents may have similar states of high
emotional arousal, with mindless, unreasonable and dangerous behaviour. We understand that the
application of physical restraint may enhance attachment in abused or neglected children, if done
repeatedly with care, but the risks of injury with older children means that the practice of physical
restraint has become confined to inpatient units, and situations where it is deemed necessary to
prevent immediate risk of harm to others. It may be useful to undertake a literature search, or to fund
research into the effects and risks of using mechanical restraint in this population.
Question 43 asks about restraint with voluntary patients. This is occasionally required in emergency
situations of imminent risk of harm, when it should be applied for the minimum period of time
necessary to ensure safety. In this instance, the conditions specified on page 4 second last para for
involuntary clients, should probably apply also to voluntary clients, where parents should be notified.
Currently, all mental health clinicians in our service are trained in the management of clinical
aggression, which includes physical restraint. However our policies discourage the use of physical
restraint outside an inpatient setting, because of the risk of harm to staff. This means that out-patient
clients may run from community-based clinics with expressed intention to self-harm, and clinicians
must them go. While they would notify parents and the Victoria Police, there is risk of criticism by the
Coroner or a case for negligence could be brought, if a fatality ensued. Service management and
mental health clinicians would appreciate guidance from the Mental Health and Drugs Division of
DHS, if this matter is not addressed within the new Act.
We have no shared view on chapter Seven concerning external reviews and appeals. Chapter Eight
concerns monitoring patient care and well-being, and we believe that a hierarchy of mechanisms is
needed here. The monitoring functions of the Chief Psychiatrist Office are useful, and we lament the
loss of the Chief Psychiatrist Clinical Reviews, which performed a valuable role in benchmarking the
quality of clinical care through reviewing clinical files. We understand this was related to limited
resources, and note again the fact that quality care has a cost, and that the funding of the specialist
mental health service system that deals with very vulnerable clients must be adequate.
Questions 51 and 52 relate to the most appropriate mechanisms for monitoring and reporting on
service performance. This is complex, as human beings and human service systems are imperfect.
While learning depends on acknowledging performance problems, individuals and groups habitually
protect themselves from embarrassment, potential blame or criticism by denying, distorting or
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covering up errors. Establishing cultures of learning and improvement requires respectful and
supportive peer learning strategies, rather than public exposure, pillory and scape-goating. The
Chief Psychiatrist Clinical Team and the Clinical Review mechanisms had achieved a good balance
here, which may be more effective than a Commission. Reviews have historically led to
recommendations for service improvements, outcome specifications, time-frames and
accountabilities within health service frameworks. The inclusion of senior clinicians from other
services also ensured that practical advice for improvement was available.
Question 53 asks about monitoring and reviewing patient deaths. Current mandatory reporting of
deaths of clients under psychiatric care, with root cause analysis and reporting processes for deaths
in hospital, and the external Coroner‟s Reporting processes seem appropriately robust at the level of
health services (note previous para). Patient deaths should be analyzed and reported in Annual
Reports from the Office of the Chief Psychiatrist, with clear system recommendations. Resources
should be allocated for this to maximize learning from client deaths and reduce systemic risks. The
Chief Psychiatrist role includes clinical leadership for mental health services, and this could
continue, with the provision of clinical guidelines or codes of practice, and it would seem useful if it
had an added educational role to train and mentor Authorized Psychiatrists in the role. This should
include issues of ethics, accountability, and organizational culture.
The main concern we have about the continuation of current arrangements is the issue of system
resources. Currently, the Mental Health and Drugs Division has multiple roles, one of which is to
support the Office of the Minister for Health, rather than operating as a public service department
under the Westminster-system that provides frank and fearless advice to Ministers about how best
to meet community needs. This may have contributed to under-resourcing of the Office of the Chief
Psychiatrist, which has meant that until recently, there was no deputy Chief Psychiatrist with
expertise in the care of children and adolescents. There may be merit in formalizing an independent
role for the Chief Psychiatrist, with separate reporting and accountability lines similar to the Health
Services Commissioner, so that they are less subject to political influence or restraint.
Chapter Nine concerns complaints, which are an important element of quality, and represent
another layer that reflects client perceptions of care. We believe that there must be robust systems
and processes for monitoring, recording and responding effectively to patient complaints in all health
services, but especially in mental health services. A formalized system for collecting, monitoring and
reporting complaints, that follow-ups the effectiveness of service responses in resolving or
addressing complaints can be a powerful tool for service improvement. In order for rates of
complaints to be useful as performance indicators, there must be mandatory and standardized
processes and systems for advising clients, supporting and collecting complaints, recording and
processing them, determining outcomes and signing them off, or escalating responses if outcomes
are unsatisfactory to the complainant.
Chapter 10 addresses confidentiality and information sharing, which we believe is a systemic
problem. We agree that provisions for information sharing should be streamlined, but accept that the
persisting stigma associated with mental illness, and some of the behaviour occasionally associated
with mental illness does require some privacy protection. Disclosure of information to parents and
guardians, and to key family members or advocates about key events seems essential, including
treatment orders, hearings, and hospital entry and transition events. General information about
diagnosis, prognosis, treatment and treatment effects, should also be shared where there is serious
risk to a person‟s wellbeing and when other parties can play a role in care. Guardians should be
given the same rights to information, and to disclose information, as parents have with minors, so
that they can take appropriate actions to ensure the person‟s wellbeing and care. Disclosure of
information between health providers, and drug and alcohol service providers, should also be
supported, if this occurs for the purpose of coordinated care and in the best interests of the person.
Professor Peter Birleson
Integrated Mental Health Program
Royal Children‟s Hospital
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