Compulsory mental health treatment and patients
Compulsory orders
The MHW Act establishes a three-stage process for making compulsory orders:
an assessment order; then
a temporary treatment order; and then
a treatment order.
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If a registered medical practitioner (a doctor) or an authorised mental health practitioner examine a person and are satisfied they meet the assessment criteria, they can make an assessment order under section 144 of the MHW Act.
An assessment order can only be made if all the following criteria are met (s 142):
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 the person is made subject to an assessment order, 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 (even if they do not consent) by an authorised psychiatrist to determine whether they meet all the criteria for compulsory mental health treatment.
If the examination can take place in the community, a community assessment order should be made. If the examination cannot occur in the community, an inpatient assessment order can be made (s 145). 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.
The patient must be informed they are subject to an assessment order, explained the purpose and effect of the order, and given a copy of the order and a statement of rights (s 150). Other people must also be notified, including any nominated support person (see ‘Nominated support person’, above), a guardian, 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 patient must be taken to a designated mental health service as soon as practicable (s 149). If required, an authorised person (including ambulance officer, police officer, mental health practitioner, or doctor working at a public mental health service) has the power to enter premises (using reasonable force), take the person into care and control, and take them to a designated mental health service (s 246).
An inpatient assessment order expires after 72 hours. If they arrive at a 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 an assessment order expires, an authorised psychiatrist must examine the person to determine whether they meet the treatment criteria (see
‘Treatment criteria’, below). If they do not meet the criteria, then the authorised psychiatrist must immediately revoke the assessment order (s 161).
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 147).
Before an 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 153). The patient 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 160).
Court assessment order
Where a person is found guilty of an offence or pleads guilty to an offence, the court has the power to make a court assessment order (CAO) under 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 an inpatient court assessment order if the assessment cannot occur in the community. They can also make a TTO if satisfied the compulsory treatment criteria apply (s 180). The authorised psychiatrist must also determine whether the criteria specified in section 94B(1)(c) of the Sentencing Act for making a court secure treatment order (CSTO) apply (s 177) (these criteria are essentially the same as the treatment criteria; see ‘Treatment criteria’, below).
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’, below.
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If they are being treated in the community this is called a community temporary treatment order (CTTO) (MHW Act s 181(1)(a)). If they are being detained and compulsorily treated in hospital this is called an inpatient temporary treatment order (ITTO) (s 181(1)(b)). The person making a TTO in respect of an assessment patient must not be the same person who made the assessment order (s 180(3)).
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 143), having regard to the views that must be considered (see ‘Views and preferences that must be considered’, below).
Treatment criteria
The treatment criteria for making a TTO or TO are set out in section 143 of the MHW Act, which states that all the following four criteria must apply:
1the person has mental illness;
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;
the immediate treatment will be provided to the person if the person is subject to a TTO or TO; and
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:
the person’s views and preferences about treatment of their 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 of preferences;
the views of the person’s nominated support person;
the views of a guardian of the person;
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;
the views of a parent of the person, if the person is under the age of 16 years; and
the views of the Secretary of the Victorian Government DFFH, if the person is the subject of a family reunification order or a care by secretary order.
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 support person (see ‘Nominated support person’, above) if they have one (ss 187–188).
Setting and duration of a temporary treatment order
In making the TTO, the authorised psychiatrist must determine whether to make a CTTO or an ITTO, considering the same views listed above (s 181).
The psychiatrist can only make an ITTO if satisfied the person cannot receive treatment in the community (s 181(3)). An ITTO enables the person to be taken to and detained in and treated in a designated mental health service (s 182(3)).
The TTO expires after 28 days unless it is revoked or a TO is made before the TTO expires (s 183). However, in exceptional circumstances, the MHT can extend the duration of a TTO for up to 10 business days (s 374).
The authorised psychiatrist must immediately revoke the TTO if they determine the treatment criteria no longer apply (s 205).
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 206).
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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 192 of the MHW Act.
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 already on a TO, their authorised psychiatrist must apply to the MHT at least 10 business days before the expiry of the TO (s 191), following which the MHT must then conduct a hearing, again before the expiry of the order. The registrar has discretion to accept out of time applications.
If the MHT considers that all four treatment criteria under section 143 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 (see ‘Views and preferences that must be considered’, above).
Setting and duration of a treatment order
If the MHT makes an order, it must also determine whether to make an inpatient TO (ITO) or a CTO (s 194), 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 duration of treatment orders is six months (both CTO and ITO).
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 least 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 treatment order
If a compulsory patient is unable to provide informed consent or does not consent, then compulsory treatment can be given but, consistent with the mental health and wellbeing principles of the MHW Act, the treatment criteria, and the decision-making principles, the treatment must be the least restrictive treatment necessary to prevent serious harm or serious deterioration.
Variation of a treatment order
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 (MHW Act s 200).
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 203).
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 support person. Such variations do not affect the duration of the initial order (s 201).
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 (s 200(4)).
Authorised persons have a range of apprehension and other powers in certain circumstances if a person does not go to hospital (see ‘Mental health crisis response and transport by authorised persons’, below).
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Under the MHW Act (pt 4.7), 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, ITTO or ITO. 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 are determined considering the purpose of the leave and if the person’s (or others’) health and safety will not be seriously endangered as a result (s 214).
The MHW Act also requires the authorised psychiatrist to consider a range of views, including, critically, the person’s views and preferences (s 214).
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 217).
The person and others must be notified.
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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. This time period must be no longer than six months from the date the person gives their consent or the date the MHT approves ECT (s 95).
Electroconvulsive treatment for an adult
ECT can occur in two ways:
if the patient provides informed consent to ECT in writing (s 98(a)) (‘informed consent’ is defined in ‘Mental health treatment, capacity and consent’, above); or
if the MHT grants an application for ECT made by the authorised psychiatrist under section 98(b) of the MHW Act, 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 a course of ECT; and
b. there is no less restrictive way to treat the patient (s 99).
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 section 85 of the MHW Act.
Section 99(2) of the MHW Act 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 of preferences;
c. the views expressed by the patient’s nominated support person;
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. whether the electoconvulsive treatment is likely to remedy or lessen the symptoms of mental illness;
g. the likely consequences for the patient if the ECT is not administered; and
h. 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.
Electroconvulsive treatment 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 110 of the MHW Act. 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:
a. 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 written informed consent to ECT; and
b. there is no less restrictive way for the young person to be treated (s 115).
Electroconvulsive treatment hearings
Section 97(1) of the MHW Act 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 97(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 (or young person’s legal decision-maker) withdraws consent, or they regain the capacity to consent and do not consent (s 102(2)(d).
Neurosurgery
Neurosurgery can only be performed on a person who has given informed consent in writing (see definition in ‘Capacity to give informed consent’, above) and the MHT grants an application made by a psychiatrist under section 121 of the MHW Act. Applications are rare and neurosurgery happens very rarely.
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Applications to revoke a TTO or TO can be made to the MHT at any time while the order is in force (MHW Act s 205). An application can be made by the person themselves, or by a guardian, a parent (if the person is under 16) or the Secretary of the DFFH (if a relevant child protection 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 also be completed online at www.mht.vic.gov.au.
The MHT must conduct a hearing and determine the application as soon as practicable.
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All MHT hearings are heard and determined by three members. For all hearings other than those relating to simple adjournments, 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 must sit. Simple adjournments can be conducted by the legal member only.
Section 367 of the MHW Act 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 368). 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 two business days prior to the hearing (s 373) (see ‘Access to documents’, below).
The MHT can inform itself in any way it sees fit (s 362). 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). See ‘Contacts’ at the end of this chapter, for contact details for the Mental Health Legal Centre.
Hearings are 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 support person, are given notice of the hearing and may also appear (s 371). The MHT has powers to issue summons for witnesses. Knowingly giving false or misleading information (s 387) and contempt of the MHT (s 388) 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 374). In such a case the MHT can extend the duration of the order (TTO or TO) for no more than 10 business days.
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The MHW Act 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 two business days before the hearing (s 373). In Practice Note 4 (see www.mht.vic.gov.au), the MHT sets out what documents are considered to be ‘in connection with the proceeding’. The relevant hearing report, the current TO, and specified documents on the current volume of the patient’s clinical file and other general documents. 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 (s 373(2)). 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 and wellbeing principles.
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A party to the proceeding before the MHT may request a written statement of reasons for the decision of the MHT (s 380). 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 (s 383). 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 the 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 Human Rights Charter. For the applicable time limits, see ‘Charter of Human Rights and Responsibilities Act’, below.
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The MHW Act explicitly states that mental health and wellbeing service providers and persons who perform functions and exercise powers under the MHW Act should aim to reduce the use of restrictive interventions and eventually eliminate the use of restrictive interventions in mental health treatment (s 125). The decision-making principles are key to the authorisation of restrictive interventions, specifically the principles that there is no therapeutic benefit to restrictive interventions (s 81) and a balancing of harm must be considered (s 82).
A person authorising a restrictive intervention must give proper consideration to the decision-making principles.
There are only two permitted purposes for the use of restrictive intervention. They are to prevent imminent and serious harm to that person or another person, and, in the case of bodily restraint, to administer treatment or medical treatment to the person (s 127).
Part 3.7 sets out general principles for the use of restrictive interventions, including that they may only be used after all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable (s 128). Thinking about what is least restrictive requires consideration to the likely impact on the person, their views and preferences and any relevant past experience of trauma, as well as the person’s culture, beliefs, values and personal characteristics. This includes any views and preferences expressed in an advance statement of preferences or the views of a nominated support person (s 131).
The MHW Act sets out requirements for the monitoring, clinical review and examination of a person while restrictive interventions are being used on them.
Seclusion is defined as confining a person, alone, to a room or other enclosed space from which it is not within their control to leave (s 3).
Bodily restraint is defined in section 3 as physical restraint, or mechanical restraint, of a person. When bodily restraint is used on a person, they must be continuously observed by a registered nurse or registered medical practitioner for the entire time of the restraint (s 137).
Chemical restraint is defined as the giving of a drug to a person for the primary purpose of controlling the person’s behaviour by restricting their freedom of movement but does not include the giving of a drug to a person for the purpose of mental health treatment or medical treatment (s 3). When chemical restraint is used on a person, they must be continuously observed by a registered nurse or registered medical practitioner for at least an hour after the chemical restraint is administered (ss 137(2)(a)–(b)).
When any restrictive intervention is used on a person, a registered nurse or registered medical practitioner must clinically review the person at least every 15 minutes, or more frequently if appropriate given the person’s condition (s 137(3)).
When anyone other than an authorised psychiatrist authorises the use of restrictive interventions, the authorised psychiatrist must examine the person as often as is appropriate but not less frequently than every four hours, and determine if continued use of restrictive interventions is necessary (s 137(4)).
When any restrictive intervention is used on a person, the authorised psychiatrist must conduct an examination of the person as often as is appropriate, which must be at least every four hours. If an authorised psychiatrist is not practically able to conduct an examination, a registered medical practitioner may do so when directed by the authorised psychiatrist (s 137(5)).
There are new obligations to document the reasons for the use of restrictive interventions as well as all other less restrictive means tried and considered and why they were found unsuitable (s 133).
The authorised psychiatrist has obligations to ensure:
Specified support persons and the non-legal mental health advocacy service are notified about the use, nature and reasons for the use of the restrictive intervention (s 135).
The restrictive intervention is reviewed after its use. The consumer needs to be offered an opportunity to participate in this review and to have a support person to participate as well (s 138).
Both restraint and seclusion are highly intrusive practices that can cause trauma and distress and have been associated with serious harm and even death.
Medical treatment without consent
A patient (a compulsory, security or forensic patient) may be given medical treatment (as opposed to treatment for mental illness) once informed consent is obtained (s 91). However, where the person does not have the capacity to give informed consent, the MHW Act provides for obtaining consent from the first available, willing and able person from the following list:
the patient’s appointed medical treatment decision-maker;
a person appointed by VCAT to make decisions about proposed medical treatment;
a person appointed under a guardianship order who has the power to make decisions about the proposed medical treatment; or
subject to section 93, the authorised psychiatrist if satisfied that it would benefit the patient having regard to their views and preferences including any recovery outcomes, any beneficial alternative medical treatment that is reasonably available, any relevant values directive given by the patient, the views of the person’s nominated support person, guardian, carer (if relevant), parent, DFFH Secretary (if relevant) and if the medical treatment is likely to remedy the condition or lessen the symptoms. The likely consequences for the patient if the medical treatment is not administered must also be considered, as does the second opinion of any registered medical practitioner. If the authorised psychiatrist believes the person is likely to regain decision-making capacity within a reasonable period of time they must not consent to the treatment. If any delay could result in serious harm to, or deterioration in, the mental or physical health of the patient, the authorised psychiatrist may give consent to medical treatment (s 93).
Medical treatment is defined under section 3 of the Medical Treatment Planning and Decisions Act 2016 (Vic) and includes any treatments for the purposes of diagnosing a physical or mental condition, preventing disease, restoring or replacing bodily function in the face of disease or injury or improving the comfort and quality of life with treatment with physical or surgical therapy, treatment with prescription pharmaceuticals, dental treatment and palliative care.
Medical treatment does not include a ‘special procedure’ (procedures related to fertility, pregnancy or tissue donation) or medical research procedure, which are covered by Part 6 of the Guardianship and Administration Act 2019 (Vic).
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The MHW Act defines ‘authorised person’ and ‘authorised health professional’. People that fall within these definitions have an important role to play in relation to mental health crisis responses and providing transport under the MHW Act.
Authorised persons are:
police officers;
registered paramedics employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986 (Vic);
protective services officers;
registered medical practitioners employed or engaged by a designated mental health service;
authorised mental health practitioners; and
a member of a prescribed class of person (s 3).
Compulsory mental health treatment and patients
Chapter: 8.4: Mental illness
Contributor: Kate Windmill, Director of Legal Practice, Mental Health Legal Centre
Current as of: 1 September 2024
Law Handbook Page: 744
Next Section: Mental health crisis response and transport by authorised persons
