13.1 What is an advance statement?
An advance statement is a statement made under the Mental Health Act 2014. It sets out a person’s preferences about treatment in the event that they become unwell and require compulsory treatment.62 An advance statement may include information about treatment a person finds effective, treatment that has been less effective in the past and the person’s views and preferences about neurosurgery and electroconvulsive treatment.
A psychiatrist treating a person must have regard to a person’s advance statement when making a treatment decision, although the psychiatrist may disregard the advance statement if they consider that acting on the patient’s preferences is not clinically appropriate or is not a treatment ordinarily provided by the mental health service.
13.2 What is a nomination?
A nomination is a statement made under the Mental Health Act 2014 appointing a person to assist a patient who becomes so unwell they require compulsory treatment. A nominated person may provide support, help represent the patient’s interests and help the patient exercise their rights under the Act.63 They must be informed and consulted about key stages of a patient’s assessment, treatment and recovery in a mental health service.
13.3 Witnessing an advance statement
An advance statement must be in writing and signed and dated by the person making the advance statement. It must be witnessed by a JP or other authorised witness, (authorised witness means a registered medical practitioner, a mental health practitioner or a person who may witness a statutory declaration) who must include a statement stating that in their opinion:
- the person making the advance statement understands what an advance statement is and the consequences of making an advance statement;
- the witness observed the person sign the advance statement; and
- the witness is an authorised witness.
13.4 Witnessing a nomination
The nomination must be in writing and signed and dated by the person making the nomination. It must specify the name and contact details of the person nominated and include a statement signed by the nominated person that they agree to be the nominated person.
It must be witnessed by a JP or other authorised witness (authorised witness means a registered medical practitioner, a mental health practitioner or a person who may witness a statutory declaration) who must include a statement that, in their opinion:
- the person making the nomination understands what a nomination is and the consequences of making a nomination;
- the witness observed the person sign the nomination; and
- the witness is an authorised witness.
The nominated person must not be the person who witnesses the nomination.
13.5 Duration, amendment, and revocation
Advance statements and nominations are effective until they are revoked. They cannot be amended. If a person changes their mind about their preferences in an advance statement or the person they have nominated in a nomination, they must make a new advance statement or nomination. The new document has the effect of revoking the previous advance statement or nomination.
The witnessing requirements for revocation are the same as those for making an advance statement or nomination, including the requirement that the authorised witness include a statement that, in the opinion of the witness, the person making the revocation understands the consequences of the revocation.
The nominated person does not need to be present for the revocation of a nomination but the person who revokes the nomination must take reasonable steps to inform them (and their authorised psychiatrist if they are a compulsory patient at the time) about the revocation.
The nominated person does not have to sign a document if they no longer wish to act as a nominated person, but they must take reasonable steps to inform the person who nominated them and their authorised psychiatrist if they are a compulsory patient at the time.
13.5.1 Key documents being witnessed
Table 1: Enduring Power of Attorney Appointment Form
|
How many witnesses: |
Two adult witnesses |
|
Who can be an authorised witness? |
One witness must be: • a registered medical practitioner or • authorised to witness affidavits (including JPs) |
|
Who cannot be a witness? |
Neither witness can be: • a relative of yours • a person who you are appointing as an attorney or alternative attorney, or any of their relatives • a care worker or accommodation provider of yours |
What witnesses certify: |
|
|---|---|
|
Decision-making capacity |
That the person appears to have decision-making capacity at the time of signing in relation to the making of the enduring power of attorney |
|
Understands nature and consequences |
That the person appears to understand the effect of their decision to make the enduring power of attorney (see above for what the Act says this means) |
|
Freely and voluntarily signs |
That the person appears to sign the document freely and voluntarily, and in the presence of the witnesses |
|
Eligibility to be a witness |
That you are eligible to be a witness |
Table 2: Appointment of medical treatment decision-maker Form
|
How many witnesses: |
Two adult witnesses |
|
Who can be an authorised witness? |
One witness must be: • a registered medical practitioner or • authorised to witness affidavits (including JPs) |
|
Who cannot be a witness? |
Neither witness can be a person who you are appointing as your medical treatment decision maker |
What witnesses certify: |
|
|---|---|
|
Decision-making capacity |
That the person appears to have decision-making capacity at the time of signing in relation to making the appointment |
|
Understands nature and consequences |
That the person appears to understand the nature and consequences of making the appointment |
|
Freely and voluntarily signs |
That the person appears to sign the document freely and voluntarily, and in the presence of the witnesses |
|
Eligibility to be a witness |
That you are eligible to be a witness |
Table 3: Advance care directive Form
|
How many witnesses: |
Two adult witnesses |
|
Who can be an authorised witness? |
One witness must be a registered medical practitioner |
|
Who cannot be a witness? |
Neither witness can be someone who is an appointed medical treatment decision maker for you. |
What witnesses certify: |
|
|---|---|
|
Decision-making capacity |
That the person appears to have decision-making capacity at the time of signing in relation to each statement in the directive |
|
Understands nature and consequences |
That the person appears to understand the nature and effect of each statement in the advance care directive |
|
Freely and voluntarily signs |
That the person appears to sign the document freely and voluntarily, and in the presence of the witnesses |
|
Eligibility to be a witness |
That you are not an appointed medical treatment decision maker for the person |
Footnotes
[62] Section 19, Mental Health Act 2014
[63] Section 23, Mental Health Act 2014
Updated