The Tribunal can decide a range of other questions under the Act. Patients or treating teams can ask the Tribunal to decide these questions by filling out a form (an application).
Applications for declaration about the validity of treatment orders
Patients and other interested persons can complete an Application to ask the Tribunal to declare that certain orders are (or were) valid or invalid (ss 397 and 400). These include:
- involuntary treatment orders;
- continuation orders; or
- variation orders.
If the order is no longer in force at the hearing date, the Tribunal may decide to hear the application anyway if it is satisfied the application raises a question of law or a matter of public interest (s 403).
Applications to review admission of long-term voluntary inpatients
Patients and other interested persons can complete an Application to ask the Tribunal to review the admission of long-term voluntary inpatients (s 405(1)).
A long-term voluntary inpatient is:
- an adult who has been a voluntary inpatient for more than six months; or
- a child who has been a voluntary inpatient for more than three months (s 404).
After completing such a review, the Tribunal may recommend the treating psychiatrist:
- reconsider the need for the admission;
- prepare and regularly review a treatment, support and discharge plan for the patient;
- discharge the patient (s 408).
The Tribunal has the power to make recommendations only.
Applications to approve electroconvulsive therapy
Psychiatrists cannot use electroconvulsive therapy (ECT) on certain patients without the Tribunal’s approval. These patients include:
- children aged between 14 and 17;
- adult involuntary patients or mentally impaired accused (s 409).
If a patient’s psychiatrist recommends ECT for one of these patients, the psychiatrist must complete an Application for Approval to Perform Electroconvulsive Therapy s 410(1) to ask the Tribunal for permission to perform ECT (s 410). The application must identify why the patient’s psychiatrist recommends ECT, and provide a treatment plan.
In deciding whether to approve ECT, the Tribunal must have regard to the Chief Psychiatrist’s Guidelines required under Section 547 of the Mental Health Act 2014 and the Chief Psychiatrist’s Guidelines for the use of Electroconvulsive Therapy in Western Australia (s 413). Other relevant materials include the Chief Psychiatrist’s ECT Standards 2015.
The Tribunal must also have regard to all of the factors in section 414 of the Act, including:
- the patient’s wishes;
- the views of the patient’s parent or guardian (for children);
- the views of the patient’s close family member, carer, and nominated person;
- why ECT should be performed;
- the consequences of not performing ECT;
- any significant risk of performing ECT;
- whether ECT will promote and maintain the health and wellbeing of the patient;
- whether any alternative treatment is available and any significant risks of alternative treatment.
Applications to approve psychosurgery
Psychosurgery cannot be performed without the Tribunal’s approval. With the Tribunal’s approval, psychosurgery may be performed only on adults or children between the ages of 16 and 18 who consent to the treatment (s 208).
If a patient’s psychiatrist recommends psychosurgery, the psychiatrist must complete an Application to ask Tribunal for permission (s 417). The application must set out why the psychiatrist recommends psychosurgery and include a treatment plan.
The Tribunal cannot approve the psychosurgery unless satisfied that:
- the patient gives informed consent;
- the psychosurgery has clinical merit and is appropriate;
- all alternatives have been appropriately trialled but have not resulted in a sufficient and lasting benefit to the patient;
- the neurosurgeon is suitably qualified and experienced;
- the proposed hospital is a suitable place.
In deciding whether to approve psychosurgery, the Tribunal must have regard to:
- the views of the patient’s carers, close family members or personal supporters;
- the consequences of not performing the psychosurgery;
- the nature and degree of the risks of the psychosurgery; and
- whether the psychosurgery will promote and maintain the health and wellbeing of the patient.
The Tribunal has not yet considered an application for psychosurgery.
Applications to issue compliance notices
Patients and other interested persons can complete an Application to ask the Tribunal to issue a service provider with a compliance notice for non-compliance with a prescribed requirement of the Act (s 422).
A ‘service provider’ is the person required by the Act to comply with a ‘prescribed requirement’ (s 422).
A ‘prescribed requirement’ is a requirement under the Act to:
- give a document or provide information to someone, or include a document or information in a patient’s medical record, or comply with a request; or
- ensure a patient’s treatment, support and discharge plan is prepared, reviewed or revised (s 422).
If after the hearing the Tribunal thinks the service provider has not complied with the prescribed requirement, the Tribunal may issue a compliance notice. The compliance notice may direct the service provider to:
- take action within a set period to comply with the prescribed requirement; and
- report to the Tribunal about the outcome.
Before deciding to issue a compliance notice, the Tribunal must consider whether to refer the matter to one or more of the following:
- the Commissioner of the Mental Health Commission;
- the Director General of the Health Department;
- the Chief Psychiatrist;
- a registration board (s 423).
The President of the Tribunal includes in the Annual Report the name of each service provider issued with a compliance notice during that year; and the number of compliance notices issued during that year.
This provision is most often used where a treatment, support and discharge plan may not comply with the Act or the Chief Psychiatrist’s Guidelines.
Applications to review orders restricting a patient's freedom of communication
Section 261 of the Act provides that patients have the right of freedom of lawful communication, including the freedom to:
- see and speak with other people in the hospital;
- have uncensored communications with people, including visits, telephone calls, mail and electronic communications;
- receive visits and other contact from legal practitioners, mental health advocates and others.
Nevertheless, in certain circumstances a psychiatrist may make an order limiting or preventing the exercise of these rights (s 262). These orders must be in the approved form, placed on the patient’s file, and a copy given to the patient and personal supporters.
Patients and other interested persons can complete an Application to ask the Tribunal to review a psychiatrist’s order limiting or preventing exercise of these rights (s 427, 428). After completing the hearing, the Tribunal can confirm, amend or revoke the psychiatrist’s order.
Applications to resolve certain questions arising in respect of nominated persons
Patients may nominate a person to assist them to ensure their rights are observed, and their wishes and interests are considered. Patients and other interested persons can complete an Application to ask the Tribunal to make declarations about the validity of a nomination, or to revoke a nomination (s 430).
On an application for a declaration about validity, the Tribunal may declare that a nomination is valid or invalid. The Tribunal may also vary the terms of the nomination to give effect to the intention of nomination (s 431).
On an application to revoke a nomination, the Tribunal may revoke a nomination if satisfied that the nominated person is not appropriate because they are:
- likely to adversely affect the interests of the patient; or
- not capable of performing that role because of mental or physical incapacity; or
- not willing or able to perform the role (s 432).
Applications to review any other decision affecting a patient's rights
Patients and other interested persons can complete an Application to ask the Tribunal to review other decisions made under the Act that affect a person’s rights and cannot be heard by the Tribunal under another provision (s 434).
This section is often used to review a decision by a psychiatrist to limit a patient’s access to certain information under s 248.
On completing the review, the Tribunal may make any orders or give any directions the Tribunal considers appropriate.
Page reviewed 21 November 2022