Key messages

  • The Mental Health Tribunal may make a Treatment order for a person subject to a Temporary Treatment order where the treatment criteria apply to the person.
  • A Treatment order authorises the provision of compulsory mental health treatment.

The Mental Health Tribunal may make a Treatment order for a person subject to a Temporary Treatment order where the treatment criteria apply to the person.

Purpose of a Treatment order

A Treatment order enables an authorised psychiatrist to provide compulsory treatment to a person to whom the treatment criteria apply.

A Treatment order enables a patient:

  • to be treated in the community or
  • to be taken to, detained and treated in a designated mental health service.

Mental Health Tribunal makes Treatment orders

The Tribunal must conduct a hearing to determine whether to make a Treatment order for a person who is subject to a Temporary Treatment Order.

The hearing must be conducted before the expiry of the Temporary Treatment Order. This hearing will be automatically listed and does not require an application by the authorised psychiatrist.

Application for a Treatment order

An authorised psychiatrist cannot make a Treatment order for a patient.

An authorised psychiatrist will need to make an application to the Tribunal for a Treatment order to be made for a patient who is subject to an existing Treatment Order.

An authorised psychiatrist may apply to the Tribunal if the authorised psychiatrist:

  • has examined the person and
  • is satisfied that the treatment criteria apply to the person.

In determining whether the treatment criteria apply to the person, the authorised psychiatrist must to the extent reasonable in the circumstances have regard to all the following:

  • 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
  • the views and preferences of the person expressed in his or her advance statement
  • the views of the nominated person
  • the views of the guardian
  • the views of the carer, if the authorised psychiatrist is satisfied that making a Temporary Treatment order will directly affect the carer and the care relationship
  • the views of the parent of the person, if the person is under the age of 16 years
  • 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.

The authorised psychiatrist may consider other information communicated to the authorised psychiatrist by persons other than the person who was examined.

The authorised psychiatrist must make an application to the Tribunal at least 10 business days before the expiry of the patient’s current Treatment Order.

The principal registrar of the Tribunal may accept an application made within 10 days before the expiry of the patient’s current Treatment order if the principle registrar finds that accepting the application is reasonable having regard to all the circumstances.

The Tribunal must conduct a hearing if the authorised psychiatrist has made a valid application for a Treatment Order.

Treatment criteria

The Tribunal must be satisfied that all of the treatment criteria apply to a person before making a Treatment Order.

The treatment criteria are:

  • the person has mental illness
  • because the person has mental illness, the person needs immediate treatment to prevent:
    • serious deterioration in the person’s mental or physical health or
    • serious harm to the person or another person
  • the immediate treatment will be provided to the person if the person is subject to a Treatment order
  • there is no less restrictive means reasonably available to enable the person to be immediately treated.

The Tribunal must be satisfied that if the Treatment order is made the person will receive the immediate treatment. This means that services must be available to enable the person’s treatment.

The Tribunal must be satisfied that there is no less restrictive means reasonably available to enable the person to receive the immediate treatment, including whether the person can receive treatment on a voluntary basis.

Making a Treatment order

After conducting a hearing, the Tribunal must:

  • make a Treatment order for a person if the Tribunal is satisfied that the treatment criteria apply to the person and determine:
    • the duration of the Treatment order
    • the setting of the Treatment order (inpatient or community)
  • revoke the Treatment order if the Tribunal is not satisfied that the treatment criteria apply to the person.

In determining whether to make a Treatment Order, the Tribunal must, to the extent that is reasonable in the circumstances, have regard to all the following:

  • 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
  • the views and preferences of the person expressed in his or her advance statement
  • the views of the nominated person
  • the views of the guardian
  • the views of the carer, if the Tribunal is satisfied that making a Treatment order will directly affect the carer and the care relationship
  • the views of the parent of the person, if the person is under the age of 16 years
  • 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.

The Tribunal may only make a person subject to an Inpatient Treatment order if the Tribunal is satisfied that treatment of the person cannot occur within the community.

The authorised psychiatrist will be required to satisfy the Tribunal that treatment cannot occur in the community if the authorised psychiatrist considers that a patient requires compulsory inpatient treatment.

Contents of a Treatment order

A Treatment order must state whether the Treatment order is a Community treatment order or an Inpatient treatment order.

A Treatment order must also state the date the Order was made and the duration of the Treatment Order.

Duration of a Treatment order

The Mental Health Tribunal must determine the duration of the Treatment order.

A Treatment order can be made for a maximum period:

  • up to 6 months for an Inpatient Treatment order for a patient 18 years or older
  • up to 12 months for a Community Treatment order for a patient 18 years or older
  • up to 3 months for either a Community Treatment order or an Inpatient Treatment order for a patient under 18 years of age.

The authorised psychiatrist will need to satisfy the Mental Health Tribunal that the person requires compulsory treatment for the duration they are recommending. Consideration needs to be given to the objective of reducing the use and duration of compulsory treatment and the preference for people to receive treatment on voluntary basis.

Variation of a Treatment order

The authorised psychiatrist may vary a patient’s Treatment order at any time according to clinical need without requiring the authorisation of the Mental Health Tribunal.

The authorised psychiatrist may only vary a Community Treatment order to an Inpatient Treatment order if the authorised psychiatrist is satisfied that treatment of the person cannot occur in the community.

Where a Treatment order is varied, the authorised psychiatrist who makes the variation must notify the Mental Health Tribunal and ensure that reasonable steps are taken:

  • to inform the person who is subject to the Treatment order that the order has been varied, and
  • give the person a copy of the varied Treatment order and copy of the relevant statement of rights, and
  • explain the purpose and effect of the variation to the person
  • inform the following persons that the Treatment 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, and
  • give these persons a copy of the Treatment order and the relevant statement of rights.

If the variation is from Community Treatment order to Inpatient Treatment order a person and who is not already at a designated mental health service must be taken to a designated mental health service as soon as practicable after the variation is made.

The Mental Health Tribunal must automatically conduct a hearing within 28 days of the variation of the Community Treatment order to Inpatient Treatment order to determine whether to make a Treatment order or revoke the Treatment order unless the authorised psychiatrist varies the Inpatient Treatment order back to Community Treatment order within the 28 day period.

This hearing will be automatically listed and does not require an application to be made by the authorised psychiatrist.

Revocation of a Treatment order

An authorised psychiatrist or the Mental Health Tribunal must immediately revoke a Treatment order if the criteria do not apply to the person.

In addition, a person has a right to make an application for revocation of the Treatment order to the Mental Health Tribunal at any time.

The following persons may make an application for revocation to the Mental Health Tribunal on behalf of a person subject to a Treatment Order:

  • any person at the request of the person subject to the Order
  • a guardian
  • 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.

The Mental Health Tribunal must conduct a hearing and determine the application for revocation as soon as practicable.

The Mental Health Tribunal may either make a Treatment order if the criteria apply to the person or revoke the Treatment order if the criteria do not apply to the person.

Expiry of a Treatment order

A Treatment order will expire:

  • at the end of the period specified in the Treatment Order, or
  • if the person is made subject to a a Court Secure Treatment order or a Secure Treatment order or, or
  • if the person is detained in a designated mental health service under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Expired or revoked Treatment order - notification

If a Treatment order expires or is revoked, the authorised psychiatrist must notify the Mental Health Tribunal (unless the Tribunal revoked the Order) and ensure that reasonable steps are taken to:

  • inform the person that the person is no longer subject to the Treatment order and, in the case of the revocation, give the person a copy of the notice of revocation; and
  • notify the following persons that the Treatment order has expired or has been revoked:
    • 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 a custody to Secretary order or a guardianship to Secretary order.

Assessment or treatment from another designated mental health service – variation

Variation by the authorised psychiatrist

An authorised psychiatrist may vary the following Orders to enable a patient to receive assessment or treatment at another designated mental health service :

  • Assessment Order
  • Court Assessment Order
  • Temporary Treatment Order, or
  • Treatment Order

An authorised psychiatrist may vary an Order to specify that the assessment or treatment of the person be provided by another designed mental health service if:

  • the authorised psychiatrist is satisfied that the variation is necessary for the person’s assessment or treatment, and
  • the authorised psychiatrist for the designated mental health service that is to assess the person or treat the person approves of the variation.

Direction by chief psychiatrist

The chief psychiatrist may direct an authorised psychiatrist to vary an Order to specify that the assessment or treatment of the person subject to the Order will be provided by another designated mental health service if the chief psychiatrist is satisfied that the variation is necessary for the person’s assessment or treatment.

Varying or directing variation of an Order – consultation

In determining whether to vary or direct the variation of an Order (in relation to the designated mental health service at which the assessment or treatment is obtained) , the authorised psychiatrist or chief psychiatrist must to the extent that is reasonable in the circumstances, have regard to all of the following:

  • the person’s views and preferences about the proposed variation and the reasons for those views and preferences including any recovery outcomes that the person would like to achieve
  • the views and preferences of the person expressed in his or her advance statement
  • the views of the nominated person
  • the views of the guardian
  • the views of the carer, if the authorised psychiatrist or chief psychiatrist is satisfied that the variation will directly affect the carer and the care relationship
  • the views of the parent of the person, if the person is under the age of 16 years
  • 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.

As soon as practicable after the authorised psychiatrist varies an Order or varies an Order at the direction of the chief psychiatrist, the authorised psychiatrist must ensure that reasonable steps are taken to:

  • to inform the person who is subject to the varied Order that the Order has been varied and to explain the purpose and effect of the variation, and
  • to arrange for the person who is subject to the varied Order to be taken to the receiving designated mental health service, if the person is subject to:
    • an Inpatient Assessment Order
    • an Inpatient Court Assessment Order
    • an Inpatient Temporary Treatment Order
    • an Inpatient Treatment Order, and
  • to forward to the designated mental health service which is to provide the assessment or treatment any documents relevant to the assessment or treatment of the person subject to the varied Order, and
  • to notify the following person that the 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.

Application for review of variation or direction to vary Order

Where a person does not want their Order to be varied to another designated mental health service, the person can make an application to the Mental Health Tribunal for a review of that decision.

Within 20 business days after an Order is varied, the person who is subject to that Order may apply to the Mental Health Tribunal for a review of the decision to vary the Order or to direct the variation of the Order.

Within 20 business days, the following persons, on behalf of the person subject to the Order, may apply to the Mental Health Tribunal for a review of the decision to vary the Order or direct a variation of the Order:

  • any person at the request of the person subject to the Order
  • a guardian of the person
  • 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.

Hearing by the Mental Health Tribunal

In determining an application for review of a variation of an Order or direction to vary an Order, the Mental Health Tribunal must, to the extent reasonable in the circumstances, have regard to the following matters:

  • the person’s views and preferences about the variation and the reasons for those views and preferences including any recovery outcomes that the person would like to achieve
  • the views and preferences of the person expressed in his or her advance statement
  • the views of the nominated person
  • the views of the guardian
  • the views of the carer, if the authorised psychiatrist or chief psychiatrist is satisfied that the variation will directly affect the carer and the care relationship
  • the views of the parent of the person, if the person is under the age of 16 years
  • 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.

At hearing, the Mental Health Tribunal must either:

  • grant the application and direct that the person subject to the varied Order be assessed or treated at the original designated mental health service and, if the person has been taken to another designated mental health service, direct that the person be returned to the original designated mental health service, or
  • refuse to grant the application and direct that the person remain subject to the Order as varied.

Effect of detention in custody on Orders

A person cannot receive compulsory mental health treatment while in custody in:

  • a prison
  • a remand centre, youth justice centre or youth residential centre within the meaning of the Children, Youth and Families Act 2005
  • a police gaol within the meaning of the Corrections Act 1986
  • while the person is in immigration detention.

The following Orders have no effect while the person is detained in custody:

  • an Assessment Order
  • a Court Assessment Order
  • a Temporary Treatment Order
  • a Treatment Order.

A period of detention in custody does not “pause” the duration of the Order. The Order will expire at the time it would otherwise have expired had the person not been detained in custody. However that person will not be able to be compulsorily treated pursuant to the Order while in custody.