Madeleine Harradence, Assistant Secretary of ANMF (Vic Branch)
With the Mental Health and Wellbeing Act 2022 (the Act) now in force, members understandably have many questions. ANMF (Vic Branch) recently held online member forums with Department of Health staff to answer as many of your questions as possible. Below is a summary of the most frequently asked questions and the answers provided by the department.
The full FAQs are also available and will be emailed soon to all members who registered for the forums. The Department’s of Health’s Powerpoint slides from the forum are also available.
What does a designated mental health service mean? Does it include ICU/ED?
The term designated mental health service refers to the entity, that is the hospital or health service that is prescribed in regulations.
The Act applies to the provision of mental health and wellbeing services in the designated mental health service. ‘In a designated mental health service’ means in a premises owned or operated by a designated mental health service.
This means that regulation (including regulation of restrictive interventions) applies whenever a person is receiving mental health and wellbeing services in a premises owned or operated by a designated mental health service. This will include in an intensive care unit or emergency department of a designated mental health service.
See below for ED-specific exceptions for a designated time.
Restraint and restrictive interventions
This is a key member concern, with a significant number of questions asked relating to the new provisions around chemical and mechanical restraint. We will also be holding a one-day conference on Thursday 12 October with the aim of answering your questions in more depth.
What are the key changes?
Restrictive interventions (including seclusion, physical restraint, mechanical restraint and chemical restraint) are regulated under the new Act and must be reported to the chief psychiatrist when they are used in respect of a person receiving mental health and wellbeing services in a designated mental health service – meaning a premises owned or operated by a designated mental health service.
For clarity, this does not need to be services received while the person is under an order. It also includes a person who receives mental health and wellbeing services on a voluntary basis.
The Act introduces regulation of chemical restraint for the first time. The use of a medication will be chemical restraint if it is given for the primary purpose of controlling a person’s behaviour by restricting their freedom of movement.
If medication is given for the purpose of treatment (i.e. to remedy or alleviate a person’s mental illness or to alleviate the symptoms and reduce the ill effects of the person’s mental illness) or for medical treatment, it is not chemical restraint.
When is administering an anti-psychotic drug considered treatment and when would it be considered chemical restraint? The line seems blurry.
The Act defines chemical restraint to mean the giving of a drug to a person for the primary purpose of controlling the person’s behaviour by restricting their freedom of movement. This does not include giving medication for the purpose of treatment or medical treatment.
It is recognised that treatments may have sedating effects. This does not mean they are chemical restraint, as long as the purpose for which they are given is treatment.
Does the Act ban the use of seclusion and restraint?
The Act does not ban the use of chemical restraint within designated mental health services; rather it requires that its use be authorised, monitored and reported in accordance with the Act, in the same way as the use of other restrictive interventions (seclusion, physical restraint and mechanical restraint).
The Act reflects the ultimate aim, based on the Royal Commission recommendations, of elimination of restrictive interventions, and it provides for the setting of targets towards this goal.
Additionally, the Act establishes decision-making principles for treatment and interventions including that restrictive interventions have no inherent therapeutic benefit and can cause significant harm and should only be used if the harm that will be prevented is likely to be greater than the harm caused.
Emergency departments
Unlike the Mental Health Act 2014, the Mental Health and Wellbeing Act 2022 includes a definition of a ‘mental health and wellbeing service’. This is a service performed for the primary purpose of:
- improving or supporting a person’s mental health and wellbeing; or
- assessing, or providing treatment, care or support to, a person for mental illness or psychological distress; or
- providing care or support to a person who is a family member, carer or supporter of a person with mental illness or psychological distress.
Regulation of restrictive interventions applies whenever a person is receiving mental health and wellbeing services in a designated mental health service (including in the emergency department of a designated mental health service).
This is regardless of whether or not they are on an order.
However: recognising that the regulation of restrictive interventions in emergency departments for people who are not patients (i.e. subject to an order) will be a significant operational change, the department has enacted an ED-specific regulation, which will be in effect until 31 March 2024.
The regulation means that until 31 March 2024, in emergency departments of designated mental health services, restrictive interventions will only be regulated when used in relation to ‘patients’ (i.e. people on an assessment order, under the Act).
What ED-specific changes will we see in Sec351 – ED?
The Mental Health and Wellbeing Act 2022 introduces a new framework for responding to mental health crises in the community and for providing transport under the Act. Most of these changes impact the roles and responsibilities of authorised persons like police and registered paramedics employed by Ambulance Victoria, and do not directly impact emergency departments.
Under the new Act section 351 is now section 232 and punitive terminology like ‘apprehension’ and ‘custody’ is replaced with ‘care and control’ to reflect a more health-led approach. These care and control powers will replace the current ‘351 apprehensions’ and are also used where compulsory transport is required under the Act. For example, when providing interfacility transfers.
The only change directly impacting emergency departments is a new requirement that, where a person has been transported to an emergency department under care and control of an authorised person, the person must be accepted by a registered medical practitioner, authorised mental health practitioner or registered nurse as soon as it is reasonably practicable and safe to do so.
Aged care
How does the new Act look in residential aged care facilities?
The Act applies to mental health and wellbeing service providers. To be a provider an entity receives funding from the State for the primary purpose of providing mental health and wellbeing services.
Therefore, if the facility is a residential aged care facility fully funded and regulated by the Commonwealth, the Act will not apply.
However, if it is a specialist aged persons mental health service or if it is a facility that has funded aged person mental health beds then the Act will apply to the mental health and wellbeing services provided.
General
Will there be a grace period from the Department of Health?
The department recognises that there is concern around the Act’s commencement and, recognising this, it is timely to note another new feature in the legislation. The Act introduces, for the first time, immunity from personal liability for persons acting in good faith in compliance with the requirements of the Act. This means that practitioners acting in good faith and with a reasonable belief that they are acting in accordance with the Act, are not personally liable for any action. Nor will the relevant health service be liable.
The department has worked closely with health service leaders, industry regulators and oversight bodies to understand potential points of liability and to emphasise the importance of taking an educative approach to change.
Is there a comparison document for the Mental Health Act 2014 vs the new Mental Health and Wellbeing Act 2022 that shows changes/differences?
Yes. This is available on the Department of Health website.
Are there resources or modules to help me familiarise myself with the Act?
Yes. E-learning modules are available and accessible to any interested provider – private or public – via the Liberate Learning website and through the mental health learning platform (MHPOD). More information is available from mhvic.org.au/mental-health-and-wellbeing-act.
The department also has a range of resources available which ANMF members are welcome to access. These include:
