Key messages

  • An Assessment order is the first step to initiating compulsory mental health treatment.
  • A Court assessment order may be made by a court on the trial or hearing of a person where the person is found guilty of an offence or pleads guilty to an offence.
  • A Court assessment order authorises a compulsory assessment to determine whether the person requires compulsory mental health treatment.

An Assessment Order is the first step to initiating compulsory mental health treatment.

A Court assessment order is made by a court on the trial or hearing of a person where the person is found guilty of an offence or pleads guilty to an offence.

Purpose of a Court assessment order

A Court assessment order:

  • enables a person subject to the Court assessment order to be taken to and detained in a designated mental health service for assessment if necessary
  • enables an authorised psychiatrist to compulsorily examine the person to
    • determine whether they have mental illness and need compulsory mental health treatment
    • assist the court to determine the most appropriate sentence for the person.

The authorised psychiatrist will determine whether:

  • the treatment criteria in the Mental Health Act 2014 apply to the person and
  • the criteria for a Court Secure Treatment Order in the Sentencing Act 1991 apply to the person.

Criteria for a Court assessment order

The criteria for a Court assessment order are:

  • the person appears to have mental illness
  • because the person appears to have mental illness, the person appears to need immediate treatment to prevent
    • serious deterioration in the person’s mental or physical health, or
    • serious harm to the person or to another person
  • if the person is made subject to a Court assessment order, the person can be assessed
  • there is no less restrictive means reasonably available to enable the person to be assessed.

Setting of a Court assessment order

A Court assessment order must specify whether the assessment is to be undertaken:

  • in a designated mental health service (Inpatient Court assessment order)
  • in the community (Community Court assessment order).

A court may only make an Inpatient Court assessment order if the assessment cannot occur in the community.

Making a Court assessment order

A court may make a Court assessment order for a person if all of the following apply:

  • the criteria for a Court assessment order apply to a person
  • on the trial or hearing of the person for an offence the person is found guilty or pleads guilty to an offence
  • the person is not in custody pending sentencing
  • the court has received a report from the authorised psychiatrist for the designated mental health service where it is proposed to assess the person stating that there are facilities or services available at the designated mental health service for the assessment of the person.

As soon as practicable after making a Court assessment order, a court must:

  • notify the authorised psychiatrist that the Court assessment order has been made
  • give the authorised psychiatrist a copy of the Court assessment order.

Effect and duration of a Court assessment order

As soon as practicable after an Inpatient Court assessment order is made, the person who is subject to the Order must be taken to a designated mental health service in accordance with any direction made by the court.

A Court assessment order comes into force when the Order is made and remains in force for a period:

  • 7 days in the case of a Community Court assessment order,
  • in the case of an Inpatient Court assessment order, 7 days after the person is received at the designated mental health service.

If a Community Court assessment order is varied to an Inpatient Court Assessment Order, the duration of the Order does not vary. This means that the transport of a person to a designated mental health service and the assessment must be within the remainder of the 7-day duration of the Community Court assessment order beginning from when the Order is made by the court.

Examination by an authorised psychiatrist

Before examining a person who is subject to a Court Assessment Order, the authorised psychiatrist must to the extent that is reasonable in the circumstances, explain the purpose of the examination to the person being examined.

In the case of a Community Court assessment order, an authorised psychiatrist must:

  • examine a person who is subject to the Community Court assessment order as soon as practicable after the Order is made
  • complete his or her assessment of the person within 7 days after the Order is made.

In the case of an Inpatient Court assessment order, an authorised psychiatrist must:

  • examine the person as soon as practicable after the person is received at the designated mental health service
  • complete his or her assessment of the person within 7 days after the person is received at the designated mental health service.

Notification requirements in relation to Court assessment order

As soon as practicable after a person is made subject to a Court assessment order, the authorised psychiatrist must take reasonable steps to:

  • give a copy of the Court assessment order and the relevant statement of rights to the person subject to the Court assessment order
  • inform the following persons in relation to the person subject to the Court assessment order that the Order has been made:
    • the nominated person
    • guardian
    • a carer, if the authorised psychiatrist is satisfied that assessing the person will directly affect the carer and the care relationship
    • a parent, if the person is under the age of 16 years
    • the Secretary to the Department of Human Services if the person is the subject of custody to the Secretary order or a guardianship to Secretary order
  • give these persons a copy of the Court assessment order and the relevant statement of rights.

After the authorised psychiatrist submits his or her assessment report to the court, the court may:

  • make a Court Secure Treatment Order for the person, or
  • sentence the person according to law.

The court must deduct from the duration of the Court Secure Treatment Order or the sentence, the period of time that the person was detained under the Court assessment order.

Variation of a Court assessment order

The authorised psychiatrist can vary the setting of a Court assessment order before the authorised psychiatrist completes his or her assessment of the person.

A variation from a Community Court assessment order to an Inpatient Court assessment order may only be made if the authorised psychiatrist is satisfied that the person cannot be assessed in the community.

Where a Community Court assessment order is varied to an Inpatient Court assessment order, the person subject to the Court assessment order must be taken to the designated mental health service as soon as practicable after the Court assessment order is varied.

Where a Court assessment order is varied, the authorised psychiatrist who makes the variation must ensure that reasonable steps are taken:

  • to inform the person who is subject to the Court assessment order that the order has been varied
  • give the person a copy of the varied Court assessment order and copy of the relevant statement of rights
  • explain the purpose and effect of the variation to the person
  • inform the following persons in relation to the person subject to the Court assessment order that the Court assessment order has been varied:
    • the nominated person
    • a guardian
    • a carer, if the authorised psychiatrist is satisfied that assessing the person will directly affect the carer and the care relationship
    • a parent, if the person is under the age of 16 years
    • the Secretary to the Department of Human Services if the person is the subject of custody to the Secretary order or a guardianship to Secretary order,
  • give these persons a copy of the Court assessment order and the relevant statement of rights.

The authorised psychiatrist must also inform the court that made the Court assessment order for the person that the Order has been varied.

Treatment during Court assessment order

A patient subject to a Court assessment order may only be given treatment for their apparent mental illness if:

  • they give informed consent to the treatment
  • where the treatment is required as a matter of urgency to prevent serious deterioration in their mental or physical health or serious harm to the person or another person.

This means that a clinician must seek the informed consent of the person before administering treatment (see informed consent). The clinician must presume that the person has capacity to give informed consent to treatment before making a treatment decision for the person (see Presumption of capacity).

A clinician may administer treatment to a person without their informed consent where treatment is urgently required.

Indications of urgency include circumstances where the person is suffering significant distress or where their health or mental health is seriously deteriorating or where a delay in treatment would result in serious harm to the person.

Authorised psychiatrist to provide report to court

On completing an assessment of a person subject to a Court assessment order, the authorised psychiatrist must ensure reasonable steps are taken:

  • to inform the person that the assessment is complete
  • to inform the following persons that the assessment is complete:
    • the nominated person
    • a guardian
    • a carer, if the authorised psychiatrist is satisfied that assessment of the person will directly affect the carer and the care relationship
    • a parent, if the person is under the age of 16 years
    • 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
  • to notify the court that made the Court assessment order that the assessment is complete and provide a report to the court that states whether the authorised psychiatrist:
    • made the person subject to a Temporary Treatment Order
    • is satisfied that the criteria for a Court Secure Treatment Order in the Sentencing Act 1991 apply to the person
    • recommends making the person subject to a Court Secure Treatment Order
    • includes information as to the person’s current mental condition and any other information that the authorised psychiatrist considers appropriate.

Authorised psychiatrist may make a Temporary treatment order

An authorised psychiatrist may make a Temporary Treatment Order for a person subject to a Court assessment order if the treatment criteria apply to the person.

It is also possible for a person subject to a Court assessment order to already be subject to a Temporary Treatment Order or Treatment Order. In these circumstances the Court assessment order can run concurrently with the Temporary Treatment Order or Treatment Order and the person can continue to be given compulsory treatment pursuant to the Temporary Treatment Order or Treatment Order.

The person cannot be treated pursuant to the Court assessment order unless the person gives informed consent or treatment is required as a matter of urgency.