Anyone can seek admission to a hospital for psychiatric treatment. A person admitting themselves to hospital will be classified as a voluntary patient. A voluntary patient can only be given treatment if they agree to it. Private hospitals can only treat voluntary patients.

A voluntary patient may leave a hospital at any time or can be discharged by the authorised psychiatrist. However, if staff feel that a voluntary patient who wants to leave meets the criteria for detention as an involuntary patient (see below), the patient may be detained under the provisions of involuntary admission.

A person can only be made an involuntary patient if all of the following criteria are met:

Any person may receive involuntary treatment after the following documents have been completed:

The request can be made by anyone, except the doctor making the recommendation. A doctor who is a relative or guardian of the patient cannot make a recommendation (s.125).

A doctor can only make a recommendation if the conditions in section 8 of the MHA are met and the doctor considers that an ITO should be made (see: "Involuntary treatment order (ITO)" below). In exercising these powers, a doctor must consider a person's human rights under the Charter (see: "Charter of Human Rights and Responsibilities", above).

The recommendation must be based on a personal examination of the patient. The doctor must specify the facts the recommendation is based on, and distinguish between personal observation and information communicated by others. A recommendation can be made if the doctor has reasonable grounds for relying on those facts; and has

A doctor who does not comply with these requirements may be charged with professional misconduct (s.124).

Once a request and recommendation have been made, these documents are sufficient authority for the requester, someone authorised by the requester or a "prescribed person" to take the person to an approved mental health service. A prescribed person is:

A request and recommendation have effect for 72 hours following examination by the doctor making the recommendation.

The police can apprehend a person who appears to be mentally ill if they reasonably believe that the person has recently attempted, or is likely to attempt, suicide or to cause serious bodily harm to themself or some other person. No warrant is required. As soon as practicable after apprehending a person, the police must arrange for an examination of the person by a doctor or mental health practitioner (s.10 MHA). The decision of Stuart v Kirkland-Veenstra [2009] HCA 15 has confirmed the limited scope of the police duty of care in these circumstances.

A mental health practitioner is a registered nurse or psychologist, a social worker or occupational therapist employed by an approved mental health service.

If a mental health practitioner examines a person they can advise the police to:

In the latter case, the police have the option of arranging an examination by a doctor if they disagree with the release of the person.

The police may enter any premises and use reasonable force when exercising powers under section 10. Excessive or unreasonable force by police will be a breach of the Charter as well as a person's other legal rights (see: "Charter of Human Rights and Responsibilities", above).

NOTE At the time of writing (July 2011) legislation had been introduced into Parliament which would give Protective Services Officers (eg court security officers and proposed armed officers on public transport) many of these powers under section 10 MHA.  These proposed powers – under the Justice Legislation Amendment (Protective Services Officers) Bill 2011 (Vic) - include the use of reasonable force in apprehending a person, but do not extend to using reasonable force to enter premises. 

Section 9B of the MHA permits entry without consent and the use of restraint where it is reasonably necessary to facilitate transport of an acutely ill person to hospital. Forced entry and restraint may be carried out by a "prescribed person" (see: "Procedure for Involuntary Treatment", above). Sedation may be administered by a doctor, or by a general or psychiatric nurse at a doctor's direction. There are various protocols that may apply, for example Ambulance transport of people with a mental illness protocol (September 2010) and the protocol between Victoria Police and the Department of Health (September 2010).  These protocols are available on the Department of Health’s website: www.health.vic.gov.au/mentalhealth.  If the force or restraint used is unnecessary a person can complain to the Ombudsman, the Office of Police Integrity or Chief Psychiatrist. Human rights under the Charter may also be breached (see: "Charter of Human Rights and Responsibilities Act", above).

An ITO is the basis for providing involuntary treatment to people admitted as inpatients to a psychiatric ward of a hospital, or to people in the community. It can only be made within 72 hours of the request and recommendation. A treatment plan (see below) must be attached to an ITO.

Once a request and a recommendation have been made, an ITO can be made in the following ways.

Once on an ITO, a person must be examined by the authorised psychiatrist within 24 hours. A person making an ITO (either the admitting doctor or the mental health practitioner) who does not believe the person meets the criteria for involuntary treatment under section 8(1) must notify the authorised psychiatrist as soon as possible. The psychiatrist must examine the person as soon as practicable, but in any case within 24 hours of admission. A doctor may also release a person from detention after consulting with the authorised psychiatrist before the 24-hour examination takes place. In this event the 24-hour examination takes place in the community.

When conducting the 24-hour examination the psychiatrist has three options, which are to:

Only after the psychiatrist is satisfied that the person cannot receive adequate treatment under a CTO can they confirm the ITO, which means the person must receive treatment in hospital.

All involuntary patients under the Act are required to have a treatment plan, which should be reviewed regularly and revised as necessary. Patients should be involved in the development of their treatment plan. Involuntary and security patients (see: "Security patients", below) have their treatment plans reviewed by the Mental Health Review Board (MHRB). No time limits are set for the preparation of treatment plans but, as they must be periodically reviewed by the MHRB upon each appeal and review, they should  be updated  prior to each hearing (see: "The Mental Health Review Board (MHRB)", below). A treatment plan must contain an outline of treatment and anything else the authorised psychiatrist thinks appropriate.

When preparing a treatment plan, the authorised psychiatrist must take into account the wishes of the person (s.19A(2)(a)) and their human rights under the Charter. The psychiatrist must also take into account:

The treatment plan must be discussed with the person and a copy must be given to them. If a person is unhappy with the treatment plan they can seek a revision of the plan by appealing to the MHRB.

If the person is subject to a CTO or restricted community treatment order (RCTO) (see also: Chapter 3*1 Disability and Criminal Justice) the treatment plan must also specify:

An advance directive (AD) (sometimes also referred to as a "living will" or "advance care directive") is a document written by a person with a mental illness, when they are well, to be used in the event of a mental health crisis when the person may have impaired decision-making capacity. It directs what the person would like to have happen regarding treatment, care and other broad lifestyle decisions. The following are some examples:

ADs are not currently recognised by legislation, and a person's AD may be overridden if they are made an involuntary patient under the MHA. As the legal status of these documents is not entirely clear, be aware that there may be differences of opinion about their authority and validity (see: discussion regarding "Advance Care Directives" in Chapter 16*6 Guardianship and Administration). However, an involuntary patient's AD should be taken into account in the development of their treatment plan (see above).

There is no prescribed form for making an AD and it is not necessary to develop the document in collaboration with a clinician; a person may choose to draft their AD in collaboration with whomever they see fit. However, it is advisable to discuss the relevant contents with anyone named in the document and to review it periodically to ensure it is up to date. 

For further information and advice contact the Mental Health Legal Centre (see: "Contacts" in Chapter 16*1 Disability Overview for details). 

A person who is on an ITO may be placed on a CTO without being taken to a hospital for admission. The authorised psychiatrist must inform a person that a CTO has been made, and the grounds on which it is made, and give a copy of the order to the person. This procedure also applies when a CTO is varied or extended. A treatment plan must also be prepared (see above).

The order must not be for longer than 12 months. However, a CTO can be extended for a further 12 months, with no limit to the number of extensions (s.14(6) MHA).

If a CTO is to be extended, this must be done before it expires. An extension of the CTO after the date of expiry is invalid and the person is no longer an involuntary patient (s.14B(4)). The person may then choose whether or not to continue treatment.

The CTO can specify where the person must live, but only if it is necessary for the treatment of their illness (s.14(3)(b)). The authorised psychiatrist or the MHRB can vary a CTO (including the residence condition) or can revoke a CTO or discharge a person from a CTO.

When a CTO is revoked, the person must return to an approved mental health service as an in-patient. A person who does not do so voluntarily can be returned under section 14D. A CTO can only be revoked if the person:

has not complied with the order or treatment plan, reasonable steps have been taken without success to obtain compliance and there is significant risk that the person's mental or physical condition will deteriorate because of non-compliance.  Since a person whose CTO has been revoked is deemed to be absent without leave from an inpatient unit, police and others have the power to apprehend that person to take them to hospital (see ‘Leaving the Hospital’ below). 

An involuntary patient can be discharged only by:

An involuntary patient can obtain leave from the hospital without being discharged in two ways:

"Leave of absence" is where the authorised psychiatrist allows the patient to be absent from the hospital. This leave is subject to any conditions and time period the psychiatrist considers appropriate. The psychiatrist can cancel leave and require that the patient return to the hospital (s.40 MHA).

A patient who leaves hospital:

can be apprehended by police, ambulance officers or employees of public mental health services and returned to the in-patient service (s.43). Any involuntary patient who remains absent, with or without leave, from an in-patient service for a continuous period of 12 months is automatically discharged. Note, however, that under section 42(3) the Chief Psychiatrist or authorised psychiatrist may apply to the MHRB for an order that such an involuntary patient is not to be discharged.

If an involuntary patient (or relative or friend) feels that an alternative to compulsory hospitalisation is available in the community, a request for leave or a CTO should be made to the authorised psychiatrist. If the request is refused, it may be worthwhile appealing against continuing detention to the MHRB on the grounds that the section 8 criteria (see: "Criteria for involuntary treatment orders", above) are not met, or that the person can be placed on a CTO.

The authorised psychiatrist may direct that an involuntary patient be transferred to another approved mental health service only if it is for the benefit of the patient or necessary for the patient's treatment. If the authorised psychiatrist has decided to transfer an involuntary patient to another psychiatric in-patient service and the patient objects to the transfer, an appeal can be made to the MHRB (see: "The Mental Health Review Board", below).

On appeal, the MHRB may confirm the decision of the psychiatrist or direct that the patient should continue to be detained at the same approved mental health service or, if already transferred, be returned to the original approved mental health service (s.39 MHA).

The admission, detention and appeal processes for mental disorder are different from those for mental illness. In practice, few if any people have been detained under the provisions for mental disorder.

Section 12A of the MHA allows, in limited circumstances, for a person who has already been detained as an involuntary patient to be further detained if they:

The authorised psychiatrist may make an application to the Chief Psychiatrist for the continued detention and treatment, for up to three months, of a person who fits all these criteria. A review by the MHRB must be conducted within 14 days of this decision. An appeal can also be lodged. The MHRB must notify the Public Advocate about the review at least seven days before it is held (s.32(4)).

Sections 12A to 12D set out the procedures for the continued detention and treatment of a person with a mental disorder.

A security patient is automatically discharged when:

However, the patient can be kept in the hospital by being reclassified as an involuntary patient rather than a security patient, provided that they still meet the section 8 criteria (see: "Criteria for involuntary treatment orders", above).

Reviews and appeals to the MHRB also apply for security patients (see: "The Mental Health Review Board (MHRB)", below). If the MHRB discharges the patient from the hospital they are returned to prison to serve out the remainder of the sentence. This also occurs when the Chief Psychiatrist discharges the patient (s.45). Both the MHRB and the Chief Psychiatrist must have regard to section 16(2)(a) and (4) and clinical guidelines issued by the Chief Psychiatrist (after consultation with the MHRB and the Correctional Services Commissioner) before making a decision to discharge a security patient.

Security patients can apply for either:

An application for special leave must be made to the Chief Psychiatrist. Such leave cannot exceed seven days for medical treatment and 24 hours in any other case. The Chief Psychiatrist must grant special leave if satisfied that there are special circumstances and the safety of the public will not be seriously endangered. If the Chief Psychiatrist refuses special leave, the security patient can appeal to the MHRB.

Leave of absence can be granted for any purpose and for a period not exceeding six months. Extensions of leave beyond six months can be granted, with no limit to the number of extensions. An application for leave of absence must be made to the Secretary of the Department of Justice and there are no appeal rights if leave is refused.

A security patient absent without leave or special leave can be apprehended by the police, ambulance officers or employees of public mental health services and returned to the approved mental health service. If the security patient is no longer in Victoria and absent in the above circumstances a warrant to arrest may be issued (s.53AA).

Security patients can be made subject to such security conditions as the authorised psychiatrist considers necessary (s.47).

The Chief Psychiatrist may order the transfer of a security patient to another approved mental health service if it will be of benefit to the patient or is necessary for the patient's treatment. If the patient objects, an appeal can be made to the MHRB.

As with security patients, the Chief Psychiatrist can transfer a forensic patient to another approved mental health service if it will be of benefit to the patient or necessary for their treatment. With respect to forensic patients detained under the Crimes Act (Cth), the Chief Psychiatrist can only make recommendations about transfer to the Commonwealth Attorney-General. If the patient objects, an appeal can be made to the Forensic Leave Panel. For further discussion of forensic patients, see: Chapter 3*1 Disability and Criminal Justice.