Compulsory mental health treatment and patients

There is a stronger decision making framework and new definitions for a compulsory patient, compulsory treatment orders 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.

Compulsory orders

The MHA 2014 establishes a three-stage process for making compulsory orders:

1 an assessment order; then

2 a temporary treatment order (TTO); and then

3 a treatment order (TO).

Step 1: Assessment order

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 to 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 mental illness and meet all the criteria for compulsory treatment.

If the examination can take place in the community, a community assessment order should be made (s 28(1)(a)). If the examination cannot occur in the community, an inpatient assessment order can be made (s 28(1)(b)). This enables the person to be taken to and detained in a designated mental health service (i.e. 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 mental illness, not to determine for certain they do have mental illness. This is the distinction between the assessment criteria and treatment criteria. In determining whether the assessment order criteria apply, the medical practitioner 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 any nominated person (seeNominated person”), a carer (if the order affects the care relationship) and the person’s parent, if they are under 16.

If an inpatient assessment order is made, the person must go to a designated mental health service within 72 hours (s 33). If they do not attend the service, 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 (using reasonable force), apprehend and take the person to a designated mental health service (s 353). The order expires after 72 hours. If they arrive at hospital within 72 hours, 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 (seeTreatment 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).

Before 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). The person and others must be notified of the variation.

Treatment on an assessment order

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).

Court assessment order

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) (“Sentencing Act”). 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.

In assessing the person, the authorised psychiatrist must determine whether the person should be made subject to a TTO and whether the criteria specified in section 94B(1)(c) of the Sentencing Act for making a court secure treatment order (CSTO) apply.

In considering the report made by the authorised psychiatrist, the court can either make a CSTO if the criteria in section 94B(1) of the Sentencing Act apply or impose a sentence on the person according to law. For more information about CSTOs, see “Security patients”.

Step 2: Temporary treatment order

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 (seeViews 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).

Treatment criteria

The treatment criteria for making a TTO or TO are set out in section 5 of the MHA 2014, which states that all the following four criteria must apply:

1 the person has mental illness;

2 because the person has mental illness, the person needs immediate treatment to prevent:

a serious deterioration in the person’s mental or physical health, or

b serious harm to the person or to another person;

3 the immediate treatment will be provided to the person if the person is subject to a TTO or TO;

4 there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.

Views and preferences that must be considered

In determining whether the treatment criteria apply, the authorised psychiatrist must have reasonable regard to 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 TTO 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 of the DHHS, if the person is the subject of a custody to secretary order, or a guardianship to secretary order.

Arguably, considering the MHA 2014’s mental health principles and objectives, the patient’s views are the most important to consider, particularly in light of the recovery orientated practice. The authorised psychiatrist may also consider other information communicated to them by a 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 is prevented from also making the TTO (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 have the purpose of the order explained. The MHT must also be notified, and reasonable steps taken to notify other people, including the person’s nominated person (seeNominated person”) if they have one (s 50(2)).

Setting and duration of TTO

In making the TTO, the authorised psychiatrist must determine whether to make a CTTO or an ITTO, considering the same 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 TO is made before its expiry (s 51). However, in exceptional circumstances, the MHT 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 MHT for revocation of the order (s 60).

Step 3: Making a treatment order

A person cannot be subject to compulsory treatment beyond the initial 28-day TTO unless the MHT makes a further order, a TO under section 52(1).

Similarly, a person cannot be subject to compulsory detention/treatment after their TO expires, unless the MHT conducts a hearing and makes a further TO. This safeguard provides 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 TO. If not satisfied that all the treatment criteria apply, they must revoke the order the person is subject to (TTO or TO).

For the purposes of making a TO, the MHT must, to the extent that is reasonable in the circumstances, consider the range of views (seeViews and preferences that must be considered”).

Setting and duration of orders

If the MHT makes an order, it must also determine whether to make an inpatient TO (ITO) or a community TO (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 years old, the maximum duration of treatment orders is three months (both CTO and ITO). For an adult 18 years or over, the maximum length of a CTO is 12 months and the maximum length of an ITO is six months.

The MHT does not have the 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. Rather than the MHT making the duration of the inpatient order as less restrictive as possible by reflecting the length of the projected inpatient stay, it is generally left to the authorised psychiatrist to vary the inpatient order to a community order when they are satisfied that treatment can occur in the community.

Treatment decisions for a person on a TTO or TO

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 serious deterioration.

Variation of TTO or TO

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 (seePowers of police and other authorised persons”).

Leave of absence

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 TTO or inpatient TO. Leave may be granted so the person can receive mental health or medical treatment, or for any other purpose the authorised psychiatrist is satisfied is appropriate.

The conditions and duration of a leave of absence 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 also requires the authorised psychiatrist to consider 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 or physical health;

it is necessary to prevent serious harm to the person or to another;

the person has failed to comply with a condition of their leave; or

the purpose for the leave no longer exists (s 64(4)).

The person and others must be notified.

Electroconvulsive treatment

Electroconvulsive treatment (ECT) involves applying an electric current to specific areas of a person’s head to produce a generalised seizure. A course of ECT is a number of treatments (up to a maximum of 12), 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).

ECT for an adult

ECT can occur in two ways. First, if the patient provides informed consent to ECT in writing (s 92(1)). (“Informed consent” is defined in “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 both:

a the patient does not have the capacity to give informed consent to a course of ECT; and

b there is no less restrictive way for the patient to be treated.

The authorised psychiatrist’s application must address both criteria. 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. The concept of capacity was recently addressed in the PBU & NJE case (see “Mental health treatment, capacity and consent”).

Section 93(2) sets out all 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 patient’s views and preferences in relation to ECT 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 patient’s views and preferences as expressed in their advance statement;

c the views of the patient’s nominated person;

d the views of the patient’s guardian;

e the views of the patient’s carer, if the authorised psychiatrist is satisfied that the decision to perform ECT will directly affect the carer and the care relationship;

f the likely consequences for the patient if the ECT is not performed;

g any second psychiatric opinion.

In the PBU & NJE case, Justice Bell emphasised that the least restrictive test is not a best-interests test [250] and that taking into account the person’s views and preferences, even when they lack capacity, is an important human rights safeguard [282].

When an adult has capacity to make the decision themselves about ECT and refuses ECT, they cannot be compulsorily given ECT.

ECT for a young person

ECT can only be performed on a person under 18 years old with the MHT’s authorisation, 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 their 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:

1 either the young person has consented to ECT in writing, or they do not have the capacity to give informed consent but a person who has the legal authority to consent to treatment (e.g. a parent) has given informed consent to ECT in writing; and

2 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.



A summary of the assessment and treatment order process, including ECT

Type of order

Person

Community
or inpatient

Max.
duration

Treatment
authorised

Order
made by

Assessment order

Adult and child

Community

24 hours (plus up to 2 extensions of 24 hours)

Informed consent; or only if urgently needed to prevent serious harm or serious deterioration in mental/physical health

Registered medical practitioner or mental health practitioner

Assessment order

Adult and child

Inpatient

Up to 72 hours (plus up to 2 extensions of 24 hours)

Informed consent; or only if urgently needed to prevent serious harm or serious deterioration in mental/physical health

Registered medical practitioner or mental health practitioner

Temporary treatment
order

Adult and child

Community (CTTO) or inpatient (ITTO)

28 days (unless extended up to 2 weeks in exceptional circumstances by MHT)

Least restrictive to prevent serious harm or serious deterioration

Authorised psychiatrist or delegate

Treatment order

Adult

Inpatient (ITO)

6 months

Least restrictive to prevent serious harm or serious deterioration

Mental Health Tribunal

Treatment order

Child

Inpatient (ITO)

3 months

Least restrictive to prevent serious harm or serious deterioration

Mental Health Tribunal

Treatment order

Adult

Community (CTO)

12 months

Least restrictive to prevent serious harm or serious deterioration

Mental Health Tribunal

Treatment order

Child

Community (CTO)

3 months

Least restrictive to prevent serious harm or serious deterioration

Mental Health Tribunal

ECT

Adult

Community or inpatient

Max. 6 month

Up to 12 treatments, provided ECT is the least restrictive treatment (s 93(2))

Mental Health Tribunal

ECT

Child, young person

Community or inpatient

Max. 6 month

Up to 12 treatments, provided ECT is the least restrictive treatment (s 93(2))

Mental Health Tribunal

ECT hearings

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 authorised 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.

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).

Neurosurgery

Neurosurgery 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.

Application for revocation of treatment orders

Applications to revoke a TTO or TO can be made to the MHT at any time while the order is in force (s 60(1)). The application may be made by the person themselves or by anyone at their request. It can also be made by a guardian, a parent (if the person is under 16) or the Secretary of the DHHS, if a relevant family reunification order or care by secretary order is in place. Designated mental health services have application forms; people wanting to apply should ask a nurse or doctor at the service for a form. Forms can be completed online at www.mht.vic.gov.au.

The MHT must conduct a hearing and determine the application as soon as practicable. In practice, how soon the hearing is held depends on where the person lives. Most designated mental health services, whether inpatient or community services, now conduct hearings weekly or fortnightly.

Hearings

All hearings of the MHT are heard and determined by a panel of three members. For all hearings other than those relating to ECT or neurosurgery for mental illness, the panel has a legal member (the chairperson), a psychiatrist member or a registered medical practitioner member, and a community member. Where the division is hearing an ECT or neurosurgery matter, a psychiatrist member will sit, rather than a registered medical practitioner.

Section 186 requires psychiatrists to complete the relevant application forms, depending on whether it is an application for a TO or to authorise ECT. The registrar has discretion to reject applications that do not comply or are out of time (s 187). The psychiatrist will prepare a report for the hearing, addressing why they believe the criteria are met. A report must also be prepared when the person has applied for revocation of their TTO or TO. The person must receive a copy of this report at least 48 hours prior to the hearing (seeAccess to documents”).

The MHT can inform itself in any way it sees fit (s 181). It is not bound by the rules of evidence but is bound by the rules of procedural fairness. The vision and values outlined by the MHT emphasise that it will take a solution-focused approach to hearings to enable and support the person subject to the order to fully participate in the hearing.

A person can – and where possible should – attend their MHT hearing. The person may be represented by a lawyer (or any person they choose). SeeContacts”, for contact details for the Mental Health Legal Centre.

Hearings are generally closed to the public. Interpreters can be arranged to assist a person at the hearing.

A number of people, including the psychiatrist and the person’s nominated person, are given notice of the hearing and may also appear (s 189). The MHT has powers to issue summons for witnesses. Knowingly giving false or misleading information (s 205) and contempt of the MHT (s 206) are offences.

Hearings may be adjourned, but cannot be adjourned to a date after the expiration of an order unless the MHT is satisfied that exceptional circumstances exist (s 192). In such a case the MHT can extend the duration of the order (TTO or TO) for no more than 10 business days.

Access to documents

The MHA 2014 contains strong provisions for accessing information. The designated mental health service must give a person access to any documents it has in connection with a proceeding at least 48 hours before the hearing (s 191). In Practice Note 8 (see www.mht.vic.gov.au), the MHT sets out what documents are considered to be “in connection with the proceeding”. The relevant clinical report and documents that support the patient’s position, views or preferences are always considered to be “in connection with the proceeding”. This right of access is separate from rights that exist under the Freedom of Information Act 1982 (Cth).

An application can be made to the MHT by the authorised psychiatrist to deny the person who is the subject of a hearing access to information on the file, but only if they think that disclosure may cause serious harm to the person or someone else. When deciding the application, the MHT must also consider issues of procedural fairness. If the MHT finds the test satisfied, it then may deny disclosure to the person and proceed with the hearing and consider the non-disclosure information itself, however it must do so consistently with the principle of autonomy and dignity outlined in the mental health principles.

There is no provision for non-disclosure based on confidentiality of information provided by third parties, or personal information of third parties.

Right to Statement of Reasons and review of MHT decisions

A party to the proceeding before the MHT may request a written statement of reasons for the decision of the MHT. The request must be in writing, and must be received by the MHT within 20 business days after the MHT’s determination, though the MHT has discretion to accept later requests.

If a person disagrees with the MHT’s decision, they can apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the MHT’s determination. An application must be made within 20 business days of the later of the following:

a the MHT’s determination; or

b receipt of the statement of reasons if requested.

Applications made out of time can be considered if there are special circumstances. A person can always lodge a further application for revocation of a TO at the MHT, however there is no right to apply to MHT for revocation of an order authorising ECT.

Reviews can also be sought on a question of law, including questions of law involving the application or interpretation of the Charter. For the applicable time limits, see Appealing government and administrative decisions, and “Charter of Human Rights and Responsibilities Act”.