Mental Health Legal Centre Inc: Comments on HREOC Discussion Paper on Living Wills
Mental Health Legal Centre Inc
Comments on HREOC Discussion Paper on Living Wills
Mental Health Legal Centre Inc.
4/520 Collins Street
Melbourne Vic 3000
Ph: (03) 9629 4422
Fax: (03) 9614 0488
February 1999
Introduction
The message coming through loudly and clearly from consumers is that the introduction of Living Wills which have some legal force would mean an improvement in the recognition of their rights.
There is also a strong view that, even if they are not legally enforceable, the may be value for people in both the process of development of the document, and the possibility that mental health workers will given them serious consideration even if they are unenforceable. It is our overwhelming experience that non enforceable principles of aspiration will be vastly less effective than enforceable rights. However, it is more likely that some workers will pay attention to views a person has expressed when Awell@, as opposed to when they have been deemed unable to consent.
The Centre believes that the introduction of a form of Living Will should be pursued. We note that a form of Advance Directive, albeit with limitations, has been introduced in Queensland. As is discussed below, this is an issue of some complexity, and we make a number of recommendations as to how Wills should operate. They would need to be implemented with great care to ensure that they do not become a de facto form of involuntary treatment, and that they do not take decision making power from consumers and place it inappropriately in the hands of carers.
However, we believe Living Wills may be a step towards bringing the reality of consumer=s rights in line with the theory, and in line with the rights of the rest of the community.
1 - General Issues for Consultation
1.1 Do Living Wills have the Potential to Further Ensure the Rights of People with a Mental Illness?
1.1.1 Living Wills which communicate the person=s preferences
In so far as Living Wills may allow consumers to communicate their preference about treatment, support and other issues, and communicate their past experiences of and feelings about psychiatric services, they do have the potential to increase the recognition of rights. Unfortunately it is still one of the most common experiences of consumers that they and their experiences are simply not listened to, acknowledged or given credibility.
As is acknowledged in the Discussion Paper, participation and consultation are cornerstones of the National Mental Health Strategy. The principle that people should be given the opportunity to influence the treatment they receive, and their preference should be granted wherever possible, are enshrined in the United Nations Principles and National Mental Health Standards, even where they are deemed to be involuntary under mental health legislation. People=s experience, however, is that once they are deemed incapable of consenting, little real participation or negotiation takes place.
Many consumers also express concern that all the rights to be consulted on treatment in the world will not assist if the person is rendered unable to effectively communicate, whether due to their disability or their experience of the mental health system - AIt is futile to try and argue while bombed out@. Living Wills could certainly address this issue.
1.1.2 Living wills which appoint substitute decision makers
It is a form of discrimination that, in relation to any treatment other than mental health treatment, a person can appoint someone else to make decisions for them. Some feedback from consumers is that, provided there are adequate protections, and they have confidence in the person they appoint, they would wish an attorney=s consent to have effect in this area as in relation to any other medical condition.
In Victoria, for example, the legislature has deemed that the consent of a guardian or someone else in that position is irrelevant for the purpose of determining whether someone should receive involuntary psychiatric treatment. There are certainly good reasons why we should be wary about allowing others to consent to mental health services. People with psychiatric disability are more likely than many others to be deemed incapable of consenting. The treatment they receive may be particularly distressing or invasive. There is an argument for limiting the power of such decision makers. One approach would be to provide that, if a person loses capacity to consent and objects to the decision maker they have appointed or the treatment proposed by that decision maker, the decision maker should not prevail, and the treatment decision will be made according to the provisions governing involuntary treatment. The philosophy behind restrictions on involuntary treatment is that a person does not just have to lack capacity to have treatment against their will - other criteria relating to harm, risk and least restrictive options must also be met. In a sense, allowing others to make decisions denies people the protection of those criteria. It also denies people the right to have their instructions acted upon, a crucial protection.
On the other hand, the view of some consumers is that, even if they oppose it when unwell, they want the person appointed to act for them when unwell. Situations can be envisaged where people may appoint a person, change their mind when unwell, than at some point in the future wish the person had acted for them. This is a difficult question, as it goes to the very heart of restrictions on involuntary treatment. However, on balance, we believe there need to be some capacity for people to change their minds and advocate for their current wishes.
Accordingly, we would propose a system where, if the person does not object to the appointee=s involvement at the relevant time, than they can make decisions, However, if they object, the involuntary criteria come into play.
1.2 Is there a need for Living Wills in the area of Mental Health?
In our view, there is a need in this area more than in any other. People with psychiatric disability lose their right to participate in decision making unlike anyone else. To the extent that Living Wills can create the maximum participation possible, they are desperately needed.
1.3 What Might be the Uses, Benefits and Limitations of Living Wills?
1.3.1 Uses and Benefits
In addition to increasing consumer participation in treatment in line with the national Standards and United Nations Principles, following are likely to be benefits and uses:
* If the process of developing them involves fully informing people about their options, it may be a valuable education process. Legislation and statements of rights are full of the requirement to fully inform about options and outcomes, but this often does not occur. If Living Wills became a universal, legislative right, this situation may improve. They may have more impact that, say the Individual Service Plans required under Departmental policy, but often not implemented.
* Living Wills, if extending to broader issues than treatment, could address a number of problems regarding lack of continuity of care, lack of discharge planning, and lack of attention by services to issues in people=s lives beyond the purely medical. Issues such as the impact of a person=s treatment on family, finances, employment or other aspects of their lives are often neglected, and problems exacerbated, because of a lack of knowledge on the part of services or attention to people=s wishes and needs. As we discuss at 2.2.1 below, there may be problems with the enforceability of some of these broader directions. However, as long as the person understands the limits of enforceability, we believe the extension to broader issues will be valuable.
* The National Mental Health Standards in Standard 11.4.E.2 and the United Nations Principles in Principle 15(1) state that every effort should be made to promote voluntary admission to services. There is of course a danger that this may in practice amount to coerced voluntary treatment, which is not voluntary at all. However, if Living Wills were implemented appropriately, they may lead to a greater level of genuine voluntary treatment.
* Living Wills may have the benefit of clarifying a gray area in mental health law. If a person is deemed not capable of consenting to treatment, but is not overtly refusing treatment, there is always a question as to whether they are given an appropriate level of information about the treatment and alternatives, or whether their wishes are fully considered. For example, it may be that someone lacks capacity to consent and is having difficulty communicating their preference as to treatment and past experience with treatment to the doctor. However, they may simply acquiesce to the treatment prescribed. A Living Will would mean that such a person, perhaps formerly consenting without real understanding of their position, is able to have their treatment preference observed.
In other words, Living Wills may mean that people who are not made involuntary, but are not fully participating in treatment decisions, are more involved in their treatment decisions.
- Living Wills may mean that more timely, appropriate intervention takes place in relation to people=s illness. The failure of the mental health system to recognise that consumer are experts on their own condition is a common frustration. A document prepared in advance which details early warning signs and triggers may help overcome the experience people report of not being responded to at an early enough stage to avoid more intrusive intervention.
1.3.2 Limitations
* Living Wills will be limited if they are not given appropriate legal status, particularly in light of mental health legislation. In Queensland, the legislation states that Advance Directives shall be abided by unless that is inconsistent with the Mental Health Act, but where they conflict the Mental Health Act prevails.
This raises an important, and difficult question. Are Living Wills limited by the existing involuntary criteria, or does some greater harm have to be likely to result from them being followed for them to be ignored. This is a crucial question to resolve. It is easy to envisage a situation where the treatment the person requests is considered less efficacious than the doctor=s recommendation, and the doctor will argue that the involuntary criteria are met even if the person is given the treatment they request in the Living Will. It is also possible that some people will nominate treatment in their Will, then oppose it at a point where treaters may determine that they lack capacity. We will deal with each case in turn.
A) People who still want the treatment nominated in Will when unwell, but that treatment is not considered adequate by treater
For example, a person may indicate in a will that they want monitoring, but no medication, treatment from a private practitioner rather than a public clinic, oral medication rather than depot, psychotherapy rather than medication, or a particular kind of depot medication. Living Wills should have some meaning for these people.
In our view, it would be appropriate to implement Wills in such a way that they are not simply over-ridden by the involuntary criteria. The Will should be followed unless there is a risk of very serious harm, rather than the mere risk of deterioration which is sufficient, for example, under the Victorian regime of involuntary treatment. This would mean that, though there would be options for treatment other than the person=s preference, their preference would only be over-ridden if there was a high level of risk - higher than the general criterion for becoming an involuntary patient.
B) People who, at a time they are considered unable to consent, no longer wish to have the treatment nominated in their Will
This raises the same difficulties discussed above in relation to substitute decision makers. Ultimately, though, we consider that people should still have the opportunity to challenge the treatment, independent of whether they are considered to have capacity. The philosophy of the National Standards and United Nations Principles is that voluntary treatment is to be preferred, and peoples current wishes followed, whether or not they are deemed to capacity.
Advocates such as ourselves always act on client instructions, and it is important that this continue to be possible. Denying people the right to refuse treatment is such a serious matter that we believe a person should still have the benefit of involuntary criteria, even if they have previously executed a Will. By way of example, a person who indicated in their Will that they will accept injections of modecate may, at the time they are deemed unwell, change their mind. They should still be able to oppose that form of treatment, and only have it administered if they not only lack capacity to consent, but also meet the other involuntary criteria. They should have the right to advocacy based on current instructions and wishes.
* the same question of when a Will is over-ridden arises in relation to non-treatment decisions. In the case of broader Alifestyle@ issues, the expressed wishes should be followed unless a person meets the criteria to have a guardian or administrator appointed. If such a decision maker is appointed, then the Will should still be followed, not just unless there is an alternative option more in their best interests, but unless the taking of that action is Aunreasonable@. Guardians or administrators are not appointed unless the person is unable to make reasonable decisions. However, it is people=s experience that once someone is appointed, the duty to act as far as possible on people=s wishes gives way to a broader concept than Areasonableness@ - best interests. Living Wills would mean that a person could follow their desired course, unless that was unreasonable, rather than simply because there was a Abetter@ option.
The question also arises as to what happens when a person changes their mind on these broader lifestyle issues. Again, their current wishes should be preferred, and only over-ridden if they meet the criteria to have a guardian or administrator appointed.
* Living Wills will be limited if the person=s expressed preferences are not actually available to them due to a lack of resources or services. This, however, should not be a justification for denying their preference as far as it is available.
* Living Wills will be limited if people are not adequately supported and informed of their options when producing them. They will also be limited if they do not have comprehensive coverage, in the sense that they anticipate a range of contingencies and changes in circumstances.
* Living Wills will be not only limited but dangerous if they are open to abuse. For example, there must be recourse to a tribunal to determine whether a person has been improperly influenced by a substitute decision maker. A person should be able to challenge an exercise of power by a substitute decision maker if that power is being abused.
* Wills will be unhelpful if they are not updated, and lock people into inappropriate outcomes. Thought would have to given to mechanisms such as regular review by the consumer to ensure that the document is still appropriate. Some consumers believe that a Will should be invalidated if it is not reviewed, for example, every three years. However, this may unnecessarily invalidate Wills where they are still appropriate. A preferable approach may be to include a statement in the Will, if the person wants to, that the Will must be reviewed at a time nominated by them.
* Living Wills will be limited if a person is unable to revoke the Will they made. It should be made clear to a person that they can revoke it at any time, while they have capacity to do so. ACapacity@ should be determined in such a way that a person need not have a sophisticated understanding of the Will and its implications to be seen as having capacity - see 2.7.5 below.
1.4 Who Should Living Wills be made Available To?
There are no doubt arguments for Living Wills for all people, not just those with psychiatric disability. However, given the particular lack of decision making power of this group, we consider Wills for them should be a priority.
1.5 Resource Implications of Living Wills
In our view, the resource implications of Living Wills would not be significant enough to make them unattainable. Consumers will certainly need information and support in creating them. However, organisations already in existence, such as the Office of the Public Advocate in Victoria, and mental health advocates, could provide much of this, albeit probably requiring some increase in resources.
Though people would need to have independent advice about the implications of Living Wills, people already working with consumers such as doctors and casemanagers would, as part of their relationship with the person, be able to assist in advising of options and possibilities for treatment. Doctors, psychologists and other suitably qualified workers would be able to certify a person=s capacity to execute a living will, provided they are not involved in the person=s treatment, and only if the person themselves of someone else disputed their capacity would there be a need to have recourse to a tribunal.
In most states, tribunals already exist which would be able to determine issues such as whether a Will should be revoked or over-ridden, or whether a substitute decision maker is abusing power. In Victoria, for example, the Guardianship and Administration List of the Victorian Civil and Administrative Tribunal could play such a role.
It has never been suggested that ordinary powers of attorney should not be available as they are too draining on resources. As we discuss below, there are certain functions such as registration of Wills which may be added to the workload of these agencies, but they are not, we would submit, excessively onerous.
1.6 Who should be Responsible for Developing Legislative and Administrative Frameworks for Living Wills?
In our view, the ideal means for Living Wills to be implemented would be by the Commonwealth legislating for their introduction, under the auspices of the National Mental Health Strategy. Given how unlikely that is, however, we would suggest that the Commonwealth take responsibility for drafting a model legislative framework to be adopted by states, and bringing whatever pressure that can be to bear on states.
Any legislation would fit better within the responsibility of attorney-general departments, rather than health, given that ordinary powers of attorney are within the Alegal@ portfolio. However, the framework should be developed by a committee or working group with representatives of consumers and health departments. This would mean that it would be developed in a way that took into account the different ways in which the different mental health system deal with issues of consent, and ensuring that the Wills operated in a way which actually gave maximum recognition of their rights.
2 - Specific Consultation Questions
2.1 Terminology
Feedback from consumers is that neither Living Will nor Advance Directive are appropriate titles for these documents. Feedback is that the document should not have an unduly legalistic title, and its meaning should be clear. Given the strong view that these documents should be able to refer to a broad range of life issues and decisions beyond Atreatment@, people thought that a term such as APreference Plan@ or >Preference Statement@ would be more appropriate and clearer in its meaning.
2.2 Decision Making
2.2.1 What Kind of Decisions could be made in Advance?
As discussed, there is strong support for these documents to cover a broad range of issues which may require attention if a person has involvement with the mental health system.
Clearly, to the extent that they do not conflict with the decision making powers under regimes such as involuntary treatment legislation, and guardianship and administration laws, any decisions could be made in advance.
The more difficult question becomes who has the responsibility to implement decisions if a person loses capacity. Legally binding Wills will bind anyone involved in medical treatment. If a medical or financial power of attorney equivalent is appointed, they are clearly bound. In the case of Alifestyle= or Aguardianship= decisions, however, it is less clear that the law allows people to given away those powers without an independent authority assessing whether it is appropriate.
In our view, this uncertainty should not preclude the Will expressing preferences about the full range of issues, as this would provide invaluable guidance as to the persons= needs.
However, it would need to be made very clear to people executing these documents which aspects could be regarded as legally binding, and which would provide guidance only. In the case of the latter, it would need to be clarified that people can indicate how they would like a person to act to assist them, but they may be unable to insist that the person does actually act.
2.2.2 Are there Limits as to what Consumers can Ask for in Advance?
In our view, limits are relevant not so much in terms of what consumers can ask for, but what they can realistically expect will be given.
As discussed above, limits may exist because no one is legally obliged to follow the instruction.
Another obvious limitation will be the services and supports that are actually available. There are two issues here. One is that people need to be made aware that they will not necessarily be entitled to a response or service simply because it is included in a Will. The other is that thought needs to be given to means of ensuring that these documents do not attain the status of pie in the sky wish lists which are not taken seriously and therefore not adequately adhered to.
This could be addressed not by limiting what preferences are expressed in a Will, but clearly delineating those issues in relation to which there will be some obligation on an entity to respond, and those which may be subject to the Aif possible/if available@ qualification - see 2.7.1 below.
Consumers feel very strongly that a holistic approach needs to taken to such documents, and that is appropriate in terms of maximum participation and sharing of information. It will also promote best practice and assist consumers in identifying their own issues. However, the delineations as to who has legal power and obligations, and which issues are Afor information only=, must be clearly drawn.
2.2.3 What Resources would be Required to Assist Consumers to make Advance Directives?
As discussed above, consumers would need independent, clear information about the implications of these documents, and about the range of choices and contingences for which they may provide. As also stated above, existing Tribunals, advocacy agencies and service providers could probably perform these functions, though some additional resourcing may be required.
2.3 Substitute Decisions Makers
As discussed at 1.1.2 above, substitute decision makers are the more problematic aspect of Living Wills in the mental health area.
Where they are appointed, there would need to be strong safeguards in terms of ability to revoke and to seek review if there is any abuse of that power. It should probably also be a requirement that a person not only appoint the decision maker, but articulate their wishes. This would mean that, unless involuntary treatment is sanctioned under law, or it can be shown that the actions of the person will be contrary to the consumer=s best interests, the appointee is effectively just ensuring that the preferences expressed in the Will are followed.
2.3.1 Obligations and Responsibilities of Substitute Decision Makers
This too is not a straightforward issue. Realistically, the options are probably that they be required to act either on the person=s instructions as articulated in the Will, and in their best interests where no wishes are expressed.
It is probably not the place of Living Wills to create new forms of liability beyond current common law concepts such as duty of care, or duties imposed on particular groups under legislative schemes.
Again, the key point is probably that the person fully understand how the appointee will act, and that there be recourse to appeal mechanisms.
2.3.2 Different Decision Makers for Different Matters?
We believe that it wold be appropriate to limit the people given formal decision making power to two, just as the convention is to limit executors of ordinary wills to two. This si because the less clarity there is about roles, the more potential there is for inappropriate decision making or abuse.
However, we see no reason why there should be a restriction on the number of people nominated as facilitators or implementer of decisions once they are made. Different people will have access to different numbers of people, and will also have different concerns such as a desire to limit the knowledge of certain people about aspects of their lives.
As long as the consumer is fully aware of each person=s role and endorses it, and each appointee is well enough informed to act appropriately for the person, there should be no reason to set limits.
2.4 Participation and Consultation
We discuss at 1.1 - 1.3 above the many potential benefits of Wills in relation to participation and consultation.
2.5 Individual Treatment Plans
In our experience, individual treatment plans are useful if they are implemented with full exploration of options and genuine participation.
Individual treatment planning, however, labelled, could be a useful way of informing people of their options for the purpose of developing a living will.
However, in our view, Living Wills would be more effective than ITPs in ensuring participation. As is the case in Queensland, they are probably more likely to be given legislative force, and will have universal, portable implications - not just for public services put for all providers.
2.6 How Might Advocacy Services Benefit form Living Wills?
The benefit of Living Wills is for consumers themselves, not advocates. Advocates would need to be careful not to let a Living Will supplant the need to act on a person=s instructions, rather than in their perceived best interests.
Living Wills would be useful in that they would assist advocates in arguing for a Amore preferred@ option or course of action even where the person has been deemed incapable of making their own decisions.
In our experience, it is extremely rare to be unable to obtain instructions as an advocate. Living Wills which appoint a substitute legal decision maker would only be useful in the exceedingly rare event that a person does lack capacity to instruct.
As discussed above, we believe that a person who changes their mind about the views expressed in their Will should be able to refuse the treatment for which they have expressed preference, or refuse the involvement of an appointed decision maker, unless the criteria for involuntary treatment, or administration or guardianship, are met. People must have the right to advocate their current wishes.
2.7 Administration
2.7.1 What might a Living Will Look Like?
In our view, Living Wills should have the capacity to address issues beyond treatment. As discussed above, such Wills will accordingly include some statements which are legally binding, and some which are for information and guidance.
Given that such a document will be complex in terms of the range of instructions, and range of legal consequences, the document will need to be carefully set out. In many cases, people may chose to give directions about some areas only, but the format should allow for clarity in even the most comprehensive Will.
The Will must achieve the dual aims of:
* facilitating maximum expression of wishes by the person,; and
* making very clear to the person the level of obligation created by sections of the Will.
Probably the most important features of what it Alooks like@ are:
* There should be clear, discrete headings and sections dealing with different areas of decision making.
* There should be a summary at the beginning of the document indicating which issues the particular Will in fact covers.
* In terms of services or options which are desired but may not be available, there should also be statements of acknowledgement by the person that this si the case, with the possibility of alternative preferences to be expressed.
* There should be scope for people to not only indicate what their wishes are, but why they have that view, so that the person=s past experiences and concerns will be taken account of.
* It should be clear form the format of the Will that separate sections or powers may be invoked or revoked separately.
* It should be written in a manner which is accessible to people with psychiatric disability, bearing in mind the impact of the particular illness on the particular person.
An important question is whether a Will needs to be in a standard form to be legally enforceable. This is a difficult question.. On one hand, there is a strong argument that, as with Victorian Enduring Powers of Attorney for Medical Treatment, they be in a prescribed form and witnessed by only a limited category of people. Handing over decision making power is a serious decision, and it is important that people are aware of the implications of such a document. It is also crucial that people fully understand the implications of deciding in advance what treatment they will have when incapacitated.
On the other hand, the idea is to facilitate maximum scope for people expressing their views. People may be very clear about what they want, but not have access to the facilities to complete a formal document.
The position adopted in Queensland is that the document may be in the prescribed from, but does not have to be, and must be witnessed by certain types of people only and be certified by a medical professional in terms of the person=s capacity.
We would suggest the answer lies in a position where a document may (but not must) be in the approved format but must be witnessed by a person able to witness affidavits or declarations, and must contain a declaration that person has explained the implications of the document to the person and is satisfied they are understood. Part of this declaration must be a statement that the person is aware of which aspects of the Will are legally binding, and which are not. There should also be certification form a non-treating medical practitioner that the person has capacity at the time of execution.
2.7.2 What Circumstances Would Invoke or Revoke a Living Will?
A Will would be invoked whenever a person was deemed to lack capacity in any of the areas referred to in the Will.
It needs to be very clear to people that a Living Will will only come into effect if the person actually lacks capacity - otherwise wise consent must be obtained and the decision left in the person=s hands.
It would need to be made very clear that separate parts of or powers in the Will could be separately invoked or revoked. It is a fact too often overlooked that incapacity in one area of a person=s life may not mean incapacity in others.
A Will would be revoked, or have limited application:
* If the person themselves wished to revoke it, and had capacity to do so.
* In the case of a person appointing a substitute decision maker, if it was determined by an independent tribunal that the decision maker was not acting in the person=s best interests, or if the person no longer wished to have that decision maker involved.
* If treaters propose different treatment from that expressed in the Will, the Will is only overruled if providing the preferred treatment will result in a high level of harm.
* If the person no longer wants the treatment nominated in the Will, the involuntary criteria come into play.
* If the Will has not been reviewed and approved by the person for the period specified by the person themselves, it is no longer enforceable.
2.7.3
The most important occurrence once it is invoked will be ensuring that it is available to and followed by those involved in the person=s treatment, care or support.
The Will should include a standard list of the sorts of people who have a copy of the Will, with provision for the person to name people in those categories if they wish to. These would include professionals involved in their care, support services, friends and relatives. Even if there is no substitute decision maker, there should be provision in the Will for people to be nominated who will liaise with service providers to ensure they are aware of and applying the Will.
Most importantly, there should be the capacity to register Wills at a central registry - for example the Guardianship List of the Victorian Civil and Administrative Tribunal, or its equivalent in other states. This does not mean that Will snot registered there are invalid, rather the objective would be to ensure that a person providing support or treatment would be able to contact central point where a person=s Will would be likely to be available.
That central agency could have responsibility for notifying people that their Wills need to be reviewed, if they have nominated in the Will that review be a requirement.
2.7.4 What processes would ensure Wills were treated as a process rather than an event?
Consumer feedback indicates that the education process that goes along with developing a Will would may be very beneficial.
Ensuring this takes place is probably a matter of resourcing and encouraging existing health, support and legal services to spend time with people informing them of their options and the implications of a Will before it is made.
One possibility would be to incorporate int he certification of Wills a statement that the person has had explained to them the potential issues which may be covered, and referral to agencies for more information about these options. This could take the form of a regulatory statement which must be communicated to the person, along the lines of APatients Rights Statements@ under mental health legislation.
2.7.5
Is the following determination of capacity adequate?
AThat a person be capable of understanding the specific elements (of the Will) be capable of understanding the effects (of the Will), and be able to communicate@
This is probably an adequate formulation, with a qualification along the lines of;
. . . .capable of understanding in practical terms@.
We suggest this to make it clear that a person=s understanding need not be sophisticated or expressed in the same way as, for example, a worker=s. It concerns us that sometimes in the context of determinations of Ainsight= or >capacity= decisions makers may require an unnecessarily high or sophisticated understanding, or understanding expressed in a particular way. For example, a person may describe their illness as manifesting as Astress@, or their paranoia as Afear@, but a review tribunal will find this is no indicative of sufficient insight. It is important that capacity for this purpose be interpreted is a less prescriptive manner. It should be enough that a person understands they are unwell and that treatment will ameliorate this.
Another important issue is that people should have the opportunity in Living Wills to indicate their own view as to when they lose capacity. There should be provision in the document to describe the indications that the person lacks capacity, form their own perspective. The ultimate decision may be made by a suitably qualified professional, but the person=s own perception of how their capacity changes should be considered.
2.8 Legislative and Service Considerations
Living Wills would only have the same benefits across all jurisdictions if states could be persuaded to implement them consistently. The legislative frameworks which would best accommodate them are those governing substitute decision makers such as powers of attorney, guardians and administrators. In most jurisdictions at least, this would have the advantage of an existing tribunal structure to prove safeguards. Different states have quite different regimes in respect of these matters, and matters such as involuntary treatment. Accordingly, Wills would not apply equitably across Australia unless states had a commitment to make them do so.
By way of example, in Queensland there are no community treatment orders under mental health law - the only involuntary treatment sanctioned is as an inpatient. Clearly, in Queensland there may be more benefit in Wills than in Victoria where, unless the Mental Health Act is made to give way is some respects, involuntary treatment int he community may over ride in some circumstances.
We have always maintained that people across Australia should have the same rights in relation to mental health services, consistent with the United Nations Principles. The efforts of the National Mental Health Strategy do not seem to be achieving this. Living Wills may be the first area where uniformity of rights could be established - but only if States agreed. We suggest that a framework be developed which takes account of regional differences in laws, but aims to implement the Wills in the same way in each state, requiring amendments to state laws where necessary.
In reality, the decision would probably then be in the hands of each state as to whether the Wills are subject to their state laws. However, this is not reason not to pursue Wills. It may be that this issue could become an impetus to seriously pursue the goal of mental health legislation that is both nationally consistent and rights affirming.
2.9 Other Interests and Obligations
2.9.1 Obligations on Professionals and Decision Makers
We comment above at 2.2.1 on who can and should be bound, and the extent to which Wills would or should bind or oblige professional and service providers.
In relation to decision making bodies and courts, it is probably not until Wills are developed and applied that we will see the impact they have. They will clearly have more influence on decisions if they are given legal standing legislatively.
It would certainly be an improvement for quality of care, however, if decisions on matters such as negligence or liability of others are informed as far as possible by knowledge of the persons=s experience and wishes.
2.9.2 Benefits and Limitations of Wills being Legally Binding
This issue is dealt with at section 1 above. To the extent we have suggested above, we believe they should be binding. The deeply entrenched culture and practice, that people with psychiatric disability who lack capacity do not participate in decisions, will only change if the law requires it.
Even if they are not legally binding, however, there may still be significant benefits for some consumers in their adoption at the level of, say, individual treatment plans advocated by departments.
2.10 What Difficulties Need to be Overcome to make Wills Work?
Aside from the issues raised above, the main change which would need to be made for Wills to be of benefit is the attitudes of the system. The Aproduction line@ experience reported by consumers, where they are like Aguinea pigs= and their voices not heard, will only change if real participation is a priority of services.
Living Wills have the potential to achieve this.