17 MARCH 2016

The new Queensland Mental Health Act came into force on the 5th March 2017 after it had been under review since mid-2013.

Due to community input, some significant advances were made in improving human rights of patients, increased oversight and review. These improvements lower the potential for patient abuse and trauma.

However major parts of the law are still in violation of the United Nations Committee on Torture. Parental rights also continue to be undermined in mental health laws in Queensland and around Australia. Thank you to everyone who worked very hard to help bring about these improvements. CCHR will be continuing to push for further much needed changes to protect patient rights. What follows is a summary of the key improvements in the law and what improvements are still needed in these areas.

Advances include:

Psychosurgery: Queensland’s first psychosurgery ban is now in place for all ages for the forms of psychosurgery involving cutting and burning the brain. This means in Australia there are the following bans for psychosurgery: a complete ban for all forms of psychosurgery in NSW and the NT, a complete ban for under 16’s in South Australia and Western Australia and in Queensland this new partial ban for all ages. [Qld Mental Health Act 2016, p. 189]

In mid-2014 it was proposed to not include deep brain stimulation (DBS) in the new Mental Health Act (where a hole is drilled into the head to implant electrodes through which an electrical current surges from a pacemaker like device inserted under the skin in the chest). DBS can cause brain damage, seizures, paralysis and stroke. Removing DBS from the Act would have meant that a child or adult if considered to have the capacity to consent, could have simply consented to DBS at the psychiatrist’s office without the need for any parental consent or tribunal approval. It would have been considered “normal medical treatment.” Due to public outrage this proposal to have DBS removed from the law was dropped. DBS is in the new Mental Health Act. More work is needed in this area to ban DBS. [14.2.1 of Review of Mental Health Act 2000, Background Paper (BP), May 2014, pp. 41 & 36 of Review of the Mental Health Act 2000, Discussion Paper (DP), May 2014 & Qld Mental Health Act 2016, p. 189]

Electroshock: Is the application of hundreds of volts of electricity to the head potentially causing brain damage, memory loss and sometimes death. All children electroshock is proposed for must now have a tribunal final approval before it is given, increasing the oversight. Previously it could be given to voluntarily admitted children who consented, if a psychiatrist determined they needed it. It is still completely unacceptable that children are allowed to be given electroshock at any age. The World Health Organization has stated, “There are no indications for the use of ECT on minors, and hence this should be prohibited through legislation”. Electroshock needs to be banned for all ages. [Qld Mental Health Act 2016, p. 346]

Both children and adults will now be provided with a lawyer for any electroshock tribunal hearings. The lawyer is to be paid for by the state. [Qld Mental Health Act 2016, p. 140]

Fines for mistreatment and giving treatment outside the law: Several fines have been increased. This was due to outrage that the maximum penalty for causing pain to, abusing, worrying or for terrifying an animal under the Queensland Animal Care and Protection Act was at the time $235,600. Yet a fine of only $11,000 was being imposed if this was done to a human being in the mental health system. The new fines while higher are still well below what they should be and all of the psychiatric practices they relate to should be illegal.

• The fine for performing psychosurgery outside the act has increased from $11,000 to $24,380. [Qld Mental Health Act 2016, p. 189]
• The fine for giving electroshock outside the law has increased from $11,000 to $24,380. [Qld Mental Health Act 2016, p. 186]
• The fine for ill treatment of a patient has been increased from $17,550 to $23,400. [Qld Mental Health Act 2016, p. 407]
• The fines for giving restraint outside of the law have increased from $6,000 to $23,400. [Qld Mental Health Act 2016, p. 208 & 209]
• There is a new clause and fine ($23,400) for the drugging of an involuntary patient when it is not clinically necessary or is not needed to save a life (chemical restraint). [Qld Mental Health Act 2016, p. 209]
• The fine for putting a patient in seclusion outside the law has gone up from $6,000 to $23,400. [Qld Mental Health Act 2016, p. 199]

Mechanical Restraint: Only the chief psychiatrist will be able to approve the use of mechanical restraint on a patient. This means that a psychiatrist can no longer just order it. Also anyone restrained is to be monitored with 24 hour attendance to reduce deaths. If an application is put in to the Chief Psychiatrist for the use of mechanical restraint it must also have a “reduction and elimination plan” that the medical staff will use for the person to reduce and eliminate the use of mechanical restraint. While this is an improvement, restraint has no therapeutic value and in fact causes significant trauma and stress on a patient. Restraint can and does cause death. It should be banned. [Qld Mental Health Act 2016, p. 192]

Living Wills: Are now written into the new law. This is where a patient writes down their wishes for their future treatment should they become ill, such as declining the use of ECT, or psychiatric drugs. Such living wills can be overridden by other clauses in the new law, but this is a start towards making a living will not only available in the Mental Health Act, but also enforceable. There is much more work to be done in this area to make them enforceable. [Qld Mental Health Act 2016, p. 178]

Involuntary Detainment: How someone previously could be involuntarily detained for psychiatric assessment in Queensland was amongst the worst in Australia. Prior to this new Mental Health Act, anyone could put in writing that they suspected someone they knew to be mentally ill. This could then be given to a Justice of the Peace (JP) with special qualifications to fill in forms for someone to be seen/picked up to be assessed for involuntary detainment. And all this without the JP ever having seen the person in question. This has meant many people have been taken to psychiatric hospitals as a result of disputes. In 2011,there were 7,000 people sent to psychiatric hospitals because of Justice of the Peace orders with 4,500 of those being detained. To compound matters if the person had been driven hundreds of kilometres from their home to be assessed, they were then left to find their own way home.

The new Mental Health Act has removed this abusive system. Justices of the Peace no longer have this power under the new Act to order involuntary assessments. While this is a step in the right direction, no one should be involuntarily detained without the right to defend themselves before a court with a lawyer of their choice paid for by the state. Only a judge or magistrate should have the right to lock someone up. [Qld Mental Health Act 2016, p. 33 indicates that Justice of Peace Orders were repealed]

Involuntary commitment reviews will be done within 28 days not 42 days as has been the case. [Qld Mental Health Act 2016, p. 298]