There is a stronger decision making framework and new definitions for a compulsory patient, compulsory treatment ordersÂ Â and temporary treatment orders under the Mental Health Act 2014. Another significant reform is in the process and criteria for the performance of electroconvulsive treatment (ECT). Neurosurgery (formerly psychosurgery) can only be performed on a person who has given informed consent in writing.
Changes under the Mental Health Act 2014
The MHA 2014 maintains a framework for making orders that authorise detention and/or compulsory mental health treatment, provided that certain criteria are met, but makes significant changes to the procedural and substantive requirements for the making of such orders. As discussed above, it also distinguishes between compulsory orders and the individual “treatment decisions” while a person is subject to such an order.
A “compulsory patient” is defined as someone who is subject to an assessment order, a court assessment order, a temporary treatment order or a treatment order. These are explained below.
A “patient” is defined as a compulsory, security or forensic patient. Security and forensic patients are explained further below.
The MHA 2014 establishes a staged process for the making of compulsory orders, starting with the making of an assessment order, then a temporary treatment order, and then a treatment order – assuming all the relevant criteria are met.
Other fundamental changes in relation to compulsory orders include: that inpatient orders now have fixed expiry dates; that community orders cannot be extended and new orders made merely by the authorised psychiatrist; and that all initial compulsory orders are shorter – a maximum of 28 days.
Beyond this initial 28 days, the Mental Health Tribunal – a statutory body independent of the mental health service – must decide whether the person meets the criteria for compulsory treatment. In addition, the MHA 2014 no longer provides for an equivalent power for a psychiatrist to compel a person on a community temporary treatment order or community treatment order (CTO) to live at a particular place (a “residence condition on a CTO” under MHA 1986). Instead, this would require a guardianship order under the Guardianship and Administration Act 1986 (Vic).
If a registered medical practitioner (a doctor) or a mental health practitioner examine a person and are satisfied they meet the assessment criteria, they can make an assessment order under section 30. An assessment order can only be made if all the following criteria are met (s 29):
a the person appears to have a mental illness;
b because of this, they appear to need immediate treatment to prevent serious deterioration in their mental or physical health, or serious harm to the person or someone else;
c if an assessment order is made, the person can be assessed; and
d there is no less restrictive means reasonably available to enable the person to be assessed.
The purpose of an assessment order is to enable the person to be examined by an authorised psychiatrist to determine whether they have a mental illness and meet all the criteria for compulsory treatment. It essentially replaces the “request and recommendation” process under the MHA 1986. If the examination can take place in the community, a community assessment order should be made (s 28(1)(a). If it cannot occur in the community, an inpatient assessment order can be made (s 28(1)(b)) which enables the person to be taken to and detained in a designated mental health service (this necessarily means a public hospital) to be examined.
For the purpose of making the assessment order, it is only necessary to find the person appears to have a mental illness, not to determine for certain they do have a mental illness. This is the distinction between the assessment criteria and treatment criteria. In determining whether the assessment order criteria apply, the doctor or mental health practitioner may consider information communicated to them by another person (s 30(3)).
The person must be notified and given a copy of the order. Other people must also be notified, including a nominated person (if the person has one) (see “Nominated person”), a carer (if the order will affect the care relationship) and the person’s parent, if they are under 16.
If an inpatient assessment order is made, the person must be taken to a designated mental health service within 72 hours (s 33). If they do not attend, an authorised person (including ambulance officer, police, mental health practitioner or doctor working at a public mental health service) has the power to enter premises (including use of reasonable force) and apprehend and take a person to a designated mental health service (s 353). If the person is not received at a designated mental health service, then the order expires after 72 hours. If they arrive at hospital within that time, the order expires 24 hours after their arrival, provided the total length of the order does not exceed 72 hours.
A community assessment order is valid for 24 hours. Before the assessment order expires, an authorised psychiatrist must examine the person to determine whether they meet the treatment criteria (see “Treatment criteria”). If they do not meet the criteria, then the authorised psychiatrist must immediately revoke the assessment order (s 37). If, after examining the person, the authorised psychiatrist is unable to determine whether the treatment criteria apply, they can extend the order for up to a further 24 hours, with a maximum of two extensions (s 34).
Prior to the authorised psychiatrist’s examination, the doctor or mental health practitioner can vary a community assessment order to an inpatient assessment order or vice versa. Again, an inpatient assessment order can only be made if the assessment cannot occur in the community (s 35), and the person and others must be notified of the variation.
While on an assessment order, a person cannot be given treatment without their informed consent unless a doctor at the designated mental health service is satisfied that urgent treatment is necessary to prevent serious deterioration in their mental or physical health, or to prevent serious harm to them or someone else (s 38).
On the trial or hearing of a person where the person is found guilty of an offence or pleads guilty to an offence, the court has power to make a court assessment order (CAO) pursuant to part 5 of the Sentencing Act 1991 (Vic). This enables a person to be taken to and, if necessary detained in, a mental health service for examination by an authorised psychiatrist, in order to assist the court in sentencing.
The criteria for making of a CAO is found at section 91 of the Sentencing Act 1991 (Vic) and are essentially the same as that of an assessment order under MHA 2014. The authorised psychiatrist will determine whether the person has a mental illness and meets the criteria for compulsory treatment (s 5 MHA 2014) or whether the criteria for a court secure treatment order under the Sentencing Act 1991 (Vic) apply. If the authorised psychiatrist decides the former, they can make a temporary treatment order (TTO) (s 44). If the latter, they must report this to the court who may then make a court secure treatment order (CSTO).
A TTO enables a person to be compulsorily treated. If they are being treated in the community this is called a community temporary treatment order (CTTO) (s 45(1)(a)). If they are being detained and compulsorily treated in hospital this is called an inpatient temporary treatment order (ITTO) (s 45(1)(b)).
Either type of TTO can be made by an authorised psychiatrist, who assesses a person subject to an assessment order and is satisfied all the treatment criteria are met (s 46(1)), having regard to the views that must be considered (see “Views and preferences that must be considered”). It is possible for an authorised psychiatrist to delegate this power to another psychiatrist or a registered medical practitioner in writing (s 151).
The treatment criteria for the making of a TTO or treatment order (TO) are set out at section 5, which states that all the following four criteria must apply:
a the person has mental illness; and
b because the person has mental illness, the person needs immediate treatment to prevent:
i serious deterioration in the person’s mental or physical health, or
ii serious harm to the person or to another person; and
c the immediate treatment will be provided to the person if the person is subject to a temporary treatment order or treatment order; and
d there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.
The new criteria sets a higher threshold for compulsory treatment than the previous “5 criteria” (s 8(1) MHA 1986), particularly given that the person must now be assessed as actually “having” rather than “appearing to have” a mental illness. The gravity of risk to justify treatment is also greater; there must be evidence of “serious” rather than “significant” harm or deterioration. A person’s capacity to consent or refusal to consent to treatment is also no longer a distinct criterion for the making of an order, though it may be a relevant factor in determining (d).
In determining whether the treatment criteria apply, the authorised psychiatrist must reasonably consider all the following:
a the person’s views and preferences about treatment of his or her mental illness and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve;
b the views and preferences of the person expressed in his or her advance statement;
c the views of the person’s nominated person;
d the views of a guardian of the person;
e the views of a carer of the person, if the authorised psychiatrist is satisfied that making a temporary treatment order will directly affect the carer and the care relationship;
f the views of a parent of the person, if the person is under the age of 16 years;
g the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order.
Arguably, having regard to the mental health principles and the objectives of the Act, the most important views to consider are those of the person themselves, particularly in light of the recovery orientated practice. The authorised psychiatrist may also consider other information communicated to them by another third person (s 46(b)).
The authorised psychiatrist who made the assessment order to which the person is subject at the time of the assessment against the treatment criteria, is prevented from making the TTO themselves (s 47).
If a TTO is made, the person must be given a copy of the order and a copy of the required Statement of Rights, and the purpose of the order explained. The Mental Health Tribunal must also be notified, and reasonable steps taken to notify other people, including the person’s nominated person (see “Nominated person”) if they have one (s 50(2)).
In making the TTO, the authorised psychiatrist must determine whether to make a CTTO or an ITTO, having regard to the same range of views listed above (s 48(2)).
The psychiatrist can only make an ITTO if satisfied the person cannot receive treatment in the community (s 48(3)). An ITTO enables the person to be taken to and detained in and treated in a designated mental health service (s 45(3)).
The TTO expires after 28 days unless it is revoked or another treatment order is made before its expiry (s 51). In exceptional circumstances however, the Mental Health Tribunal can extend the duration of a TTO for up to 10 business days (s 192).
The authorised psychiatrist must immediately revoke the TTO if they determine the treatment criteria no longer apply (s 61).
A person subject to a TTO, or another person acting on their behalf, may apply at any time while the order is in force, to the Mental Heath Tribunal for revocation of the order (s 60) (see “Mental Health Tribunal”).
A person cannot be subject to compulsory treatment beyond the initial 28-day TTO unless the Mental Health Tribunal (MHT) makes a further order – a TO under section 52(1). Similarly, a person cannot be subject to compulsory detention and/or treatment after their treatment order would otherwise expire, unless the MHT conducts a hearing and makes a further TO. This is a welcome safeguard to provide greater accountability for compulsory treatment.
For a person on a TTO, the MHT will automatically schedule a hearing to take place before the expiry of the 28-day TTO.
For a person already on a TO, their authorised psychiatrist must apply to the MHT at least 10 business days before the expiry of the TO (s 54), following which the MHT must then conduct a hearing, again before the expiry of the order.
If the MHT considers that all four treatment criteria under section 5 are met, the MHT must make a treatment order. If not satisfied that all the treatment criteria apply, they must revoke the order the person is on (TTO or TO as the case may be).
For the purposes of making a TO, the MHT must, to the extent that is reasonable in the circumstances, have regard to the range of views (see “Views and preferences that must be considered”).
If the MHT makes an order, it must also determine whether to make an ITTO or CTO (s 55(1)(a)), and how long the order should be – up to the maximum stipulated duration. In doing so, the MHT must again have regard to all the relevant views.
For a young person under 18 the maximum duration of treatment orders is three months (both CTO and ITO). For an adult 18 years or over, the maximum length of orders is six months for an inpatient on an ITO, and 12 months for someone in the community on a CTO.
It is important to note the MHT no longer has power to split the setting of an order by ordering the authorised psychiatrist to make a CTO for the person within a reasonable period of time (s 36(4) MHA 1986). It remains to be seen how the MHT will exercise their discretion consistently with the principles at section 11, where there is compelling evidence that the person would meet the criteria for a CTO in a short period of time.
It should also be noted that there can no longer be a residence condition attached to a CTO and as such a client cannot be forced to remain in accommodation if they do not wish to be there.
Although the MHA 2014 does not require the psychiatrist to prepare a specific treatment plan, the person should nevertheless be provided with information about the treatment being provided or being proposed, and the person’s informed consent sought.
If they are unable to provide informed consent or do not consent, then compulsory treatment can be given but – consistent with the mental health principles of the MHA 2014, the treatment criteria, and the psychiatrists’ obligations under section 71(3) – the treatment must be the least restrictive treatment necessary to prevent serious harm or deterioration.
An authorised psychiatrist has the power to vary community orders (CTTO and CTO) to inpatient orders (ITTO and ITO) if they are satisfied that the person cannot be treated in the community (s 58(2)). The MHT must be notified as soon as practicable after such a variation, triggering a hearing at the MHT within 28 days after the variation (s 58(5)).
Likewise, an authorised psychiatrist can vary inpatient orders to community orders. Once varied, a person must be given a copy of the order, and other key people informed, including the nominated person. Such variations do not affect the duration of the initial order (s 58(3)).
If a community order is varied to an inpatient order, the person must be taken as soon as practicable to a designated mental health service. Authorised persons have a range of apprehension and other powers in certain circumstances if a person does not go to hospital (see “Powers of police and other authorised persons”).
Under the MHA 2014 the authorised psychiatrist may grant a leave of absence for a person who is detained in hospital on an inpatient assessment order, inpatient court assessment order, inpatient temporary treatment order or inpatient treatment order.
Leave may be granted in order that the person can receive mental health or medical treatment, or for any other purpose the authorised psychiatrist is satisfied is appropriate. Conditions and duration of leave may be determined having regard to the purpose of leave and if the health and safety of the person or of others will not be seriously endangered as a result (s 64).
The MHA 2014 now also requires the authorised psychiatrist to have regard to a range of views, including, critically, the person’s views and preferences (s 64(3)).
Leave can only be revoked if it is necessary to prevent serious deterioration in the person’s mental of physical health or serious harm to themselves or another, or the person has failed to comply with a condition of their leave or the purpose for the leave no longer exists (s 64(4)), and the person and others must be notified.
Another significant reform in MHA 2014 is in the process and criteria for the performance of electroconvulsive treatment (ECT). ECT involves applying an electric current to specific areas of a person’s head to produce a generalised seizure.
A course of ECT is up to 12 treatments, performed within a period of time no longer than six months from the date the person gives their consent or the date the MHT approves ECT (s 91)
Under MHA 2014, ECT cannot be performed on a young person under 18 unless the MHT gives prior authorisation, even if they have the capacity to provide informed consent (s 94). For adults, 18 years and over, ECT can only be performed with their informed consent or, if they do not have capacity to make that decision, with the prior authorisation of the MHT. Where an adult has capacity to make the decision themselves about ECT and refuses ECT, they cannot be compulsorily given ECT.
ECT can be performed on a patient in one of two ways. First, if they provide informed consent in writing to a course of ECT (s 92(1)). For the definition of informed consent and capacity, see “Mental health treatment, capacity and consent”.
Second, if the MHT grants an application for ECT made by the authorised psychiatrist under section 93, and makes an order approving ECT, specifying the course and duration of the course of ECT.
The MHT must grant the authorised psychiatrist’s application if it is satisfied that:
a the patient does not have the capacity to give informed consent to the performance of a course of electroconvulsive treatment on himself or herself; and
b there is no less restrictive way for the patient to be treated.
The authorised psychiatrist’s application must address both criteria in their application. If the MHT is not satisfied of these criteria, the MHT must refuse to grant the application.
Capacity to give informed consent must be assessed in accordance with the tests and principles in sections 68, 69 and 70 (see “Mental health treatment, capacity and consent”).
Section 93(2) sets out the factors that must be considered in determining whether there is no less restrictive way for the person to be treated, than with ECT:
a the views and preferences of the patient in relation to electroconvulsive treatment and any beneficial alternative treatments that are reasonably available and the reasons for those views or preferences, including any recovery outcomes the patient would like to achieve;
b the views and preferences of the patient expressed in his or her advance statement;
c the views of the patient’s nominated person;
d the views of a guardian of the patient;
e the views of a carer of the patient, if authorised psychiatrist is satisfied that the decision to perform a course of electroconvulsive treatment will directly affect the carer and the care relationship;
f the likely consequences for the patient if the electroconvulsive treatment is not performed;
g any second psychiatric opinion that has been obtained by the patient and given to the psychiatrist.
ECT can only be performed on a young person under 18 with authorisation from the MHT, following an application by a psychiatrist under section 94.
Where the young person is a compulsory patient or forensic or security patient, the MHT must be satisfied that either:
a the young person has given his or her informed consent in writing to ECT; or
b the young person does not have capacity to give informed consent and there is no less restrictive way for them to be treated.
Where the young person is a voluntary patient, the MHT must be satisfied that they do not have the capacity to give informed consent and a person who has the legal authority to consent to treatment (e.g. a parent) has given informed consent in writing to ECT and there is no less restrictive way for the young person to be treated.
All the factors above must be considered in determining least restrictive treatment, for a young person, as well as the following additional factors:
•the views of a parent of the young person, if the young person is under the age of 16 years; and
•the views of a person who has the legal authority to consent to treatment for the young person.
Section 95(1) provides that the MHT must list and complete the hearing of an application to perform ECT as soon as practicable and within five business days after receiving the application.
Applications for urgent ECT hearings can be made if the psychiatrist is satisfied that ECT is necessary as a matter of urgency to save the life of the person, to prevent serious damage to the health of the person, or to prevent the person from suffering or continuing to suffer significant pain or distress (s 95(2)).
A person is entitled to have a lawyer or another advocate represent them at a hearing. Given that deciding these applications is a new function for the MHT which previously had little if any scope in relation to ECT, it is strongly recommended a person seek legal advice.
ECT must not be performed where the adult or young person withdraws consent, or they regain the capacity to consent and do not consent (s 98).
Take in table data in “2017_08_05_03_TABLE1_Summary_of_the_assessment_and_treatment_order_process_including_ECT”.
Neurosurgery (formerly called psychosurgery) can only be performed on a person who has given informed consent in writing (see definition in “Capacity and informed consent”) and the MHT grants an application made by a psychiatrist under section 102. Applications are rare and neurosurgery happens very rarely.