To what extent does Australian law provide a right to second opinions for people receiving compulsory treatment for mental illness?
Sam Boyle1, ACHLR, QUT Brisbane 1ACHLR, QUT, Brisbane, QLD, Australia
Abstract
The value of second medical opinions is widely recognised. They improve quality of medical care, increase patient autonomy, and increase patient satisfaction with medical care. The availability of second medical opinions has heightened importance in relation to compulsory treatment for mental illness. As well as affecting wellbeing, medical decisions in this space have dramatic impact on a person’s rights.
We examined laws in Australia to determine whether they facilitate second opinions for people subject to compulsory treatment for mental illness. We found that there is a mixed picture. All eight jurisdictions require a concurring second medical opinion before an order for involuntary treatment can be made. However, for subsequent treatment decisions made under those orders, only Victoria, Queensland and Western Australia make provision for second opinions. Of these, only Victoria requires assistance to be given to the person seeking a second opinion. In Queensland and Western Australia, a second opinion can only be accessed after the person has made a complaint about their treatment that was not resolved. For people subject to involuntary treatment orders, this requirement will likely severely limit access. Moreover, in over half of the Australian jurisdictions, treatment providers are under no legal obligation to facilitate a second opinion at all.
We recommend that Australian legislation be amended to ensure that people subject to compulsory treatment for mental illness have a right to a second opinion on their treatment, including provisions to ensure that they can meaningfully exercise this right.
Biography
Sam Boyle is a senior lecturer in ACHLR. He researches in the area of mental health law.