Compulsory treatment after the Tribunal has revoked an order

Compulsory treatment after the Tribunal has revoked an order

The service should respect the decision of the Mental Health Tribunal

The Mental Health Tribunal has a critical role in providing independent oversight of compulsory treatment and decisions of the tribunal should be respected by clinicians and not overturned lightly.

Following a tribunal’s decision to revoke a person’s order, a person should not be made subject to compulsory treatment unless the doctor or psychiatrist is satisfied there has been a change in circumstances.

Need for a change in circumstances

The Supreme Court in the case of XX v WW and Middle South Area Mental Health Service [2014] VSC 564 (17 December 2014) ruled that doctors cannot order people to be detained for involuntary treatment (as it then was) simply because they disagree with a decision by the (then) Mental Health Review Board. Although decided under the Mental Health Act 1986, the case provides welcome clarification and better rights protection for consumers.

Both the 1986 Act and the current Mental Health Act 2014 are silent as to when a doctor can make an order to compel mental health treatment following a Board or Tribunal decision to cancel such an order. In XX v WW, the patient was readmitted as an involuntary patient only a few hours after the Board’s decision to discharge her involuntary treatment order (ITO). The court ruled at [97] that:

‘Absent some change in circumstances, a [registered medical practitioner] cannot lawfully make a recommendation for an ITO simply because he/she disagrees with the decision of the Board. The power cannot be exercised capriciously or so as to render the Board's powers nugatory.’

The case indicates that, unless there is a clear change in circumstances following the tribunal’s decision to revoke an order, a psychiatrist’s decision to make a temporary treatment order is likely to be unlawful. Whether there is such a change in circumstances will turn on the facts of each case. In the case of XX v WW, the Court ultimately found on the facts that circumstances had changed and the decision to make a recommendation that would lead to her involuntary detention and treatment was in fact lawful.

Practice tip – is compulsory detention or treatment after the tribunal’s revocation lawful?

If hospital staff are detaining your client in hospital or your client is otherwise being compelled to have treatment, immediately or very shortly after the tribunal has revoked their order, try to get as much information as possible about the circumstances at the time of the hearing, or the basis on which the tribunal revoked the order, to assess if there has indeed been a change in circumstances.

With your client’s consent, consider:

  • requesting copies of or getting access to the new assessment order or temporary treatment order or other information from your client’s file
  • advocating to the treating team that the order to be revoked. If the psychiatrist cannot establish a change in circumstances, the order may be unlawful (following the XX v WW decision)
  • making a request for a statement of reasons from the tribunal, and/or requesting an urgent application to the tribunal for revocation of any new temporary treatment order.

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