Public Guardian consent to mental health treatment and care

For mental health enquiries, please email MHA@publicguardian.qld.gov.au.

The OPG has produced a Framework on the Consent to Mental Health Treatment and Care by the Public Guardian. This framework clarifies the position of the Public Guardian and applies to adults for whom the Public Guardian is providing consent to mental health treatment and care.

The following represents the policy position of the Public Guardian and has been drafted with regard to the suite of policies that have been released by the Chief Psychiatrist to support the operation of the Mental Health Act 2016.

Public Guardian decisions to consent to mental health treatment and care as ‘health care’

All requests to provide consent to mental health treatment and care for guardianship or attorney clients as a less restrictive way under the MHA will be considered by the Public Guardian on a case-by-case basis.

The MHA takes into consideration the safety of others (as well as the wellbeing and safety of the adult) when treating patients in a less restrictive way. The Public Guardian can only take into account considerations in relation to the adult. Whilst the safety of others is a consideration found in the MHA, it is not a consideration found in the General Principles or the Health Care Principle in the Guardianship and Administration Act 2000.

In making a decision to consent to mental health treatment and care, the Public Guardian will endeavour to:

  • Place the person at the centre of the decision-making process
  • Reflect the person’s will and preferences
  • Support and protect the person’s rights, interests and well-being.

The Public Guardian will make all reasonable efforts to support the person to exercise their own decision-making capacity with respect to their mental health treatment and care, as far as possible under the Public Guardian’s legislative mandate.

Consistent with all health care decisions made by the Public Guardian, consent will only be provided upon the receipt of detailed information regarding the client and the proposed treatment and care.

Mental health treatment and care decisions will be made based upon information provided in the mental health treatment and care consent form, medical assessments provided, through discussion with the treating psychiatrist, and in conjunction with the client.

Where a client objects to mental health treatment and care & section 67 of the Guardianship and Administration Act 2000

If a client objects to the proposed mental health treatment and care, it is the responsibility of the treating psychiatrist to determine whether or not the objection can be overridden by a guardian or attorney.

The Public Guardian will consider consenting to treatment where a client objects to the treatment on a case by case basis. However, where a client objects to treatment, the more appropriate mechanism for providing treatment and care will be under a Treatment Authority so that the client has access to statutory safeguards and oversight mechanisms, such as the regular review by the Mental Health Review Tribunal.

Physical restraint and use of force in providing mental health treatment and care

The Public Guardian will not provide consent to mental health treatment or care where in the individual circumstances of the case the Public Guardian considers that physical restraint is, or will be too frequently used. Where physical restraint is proposed, it must be the minimum necessary in the circumstances. In these circumstances, the Public Guardian considers that the rights and interests of the client may be better protected by being placed under a Treatment Authority.

Consent to mental health treatment and care in a locked inpatient unit

The Public Guardian will consider consenting to mental health treatment and care in a locked inpatient unit on a case by case basis. However, the Public Guardian’s general position is that if a treating doctor has assessed that being detained in a locked inpatient unit from which exit is prevented is necessary to manage non-health care related risk of the safety of others, then consent may not be provided by the Public Guardian.