Assessment and treatment orders

For a person to compulsorily treated for mental illness, whether in the community or as an inpatient in a public hospital, certain processes must be followed and criteria met. Part 4 of the Mental Health Act 2014 (Vic) sets out these requirements.

Mental health principles and patient rights

At each stage, the relevant decision-maker has responsibilities to provide information, explain decisions and options, inform and involve relevant people (such as nominated persons), as well as conducting assessments to decide whether the relevant criteria are met.

Mental health service providers must consider the mental health principles set out in s. 11 of the Mental Health Act when providing services.

The person receiving mental health services has a number of rights, including rights to:

• make an advance statement
• communicate privately with those outside the mental health service, including lawyers specifically, and have visitors
• nominate support people, who can receive information and support decision-making
• be given a statement of rights when being assessed or having an order made about treatment for mental illness.

For more information see Rights of people receiving treatment for mental illness.

Initial examination and assessment orders

A person can be examined to determine if an assessment order is required either in hospital or in the community. The doctor or mental health practitioner conducting the examination must explain the reason for it, and tell the person being examined if they will be made subject to an assessment order, and give them a copy of the order and a statement of rights (s. 32).

Criteria for making assessment order (s. 29)

All four criteria must be met before an assessment order can be made. These are that:

• the person appears to have a mental illness
• the person requires treatment to prevent serious harm to themselves, serious deterioration in their mental or physical health or serious harm to another person
• if an order is made, then they can be assessed, and
• there is no less restrictive means available to assess the person, including if they can be treated as a voluntary patient.

Once made, the assessment order allows an authorised psychiatrist to examine the person (compulsorily, if required) to decide if they have a mental illness and require compulsory treatment (s.28).

Note: there must be less than 24 hours between the examination and the order being made.

Types of assessment orders (ss. 28–38)

The assessment order can be:

• a community assessment order, or
• an inpatient assessment order (if the doctor or health professional is satisfied the person cannot be assessed in the community).

If an inpatient assessment order is made, the person must be transported to a designated mental health service within 72 hours, under s. 30.

Notification and information requirements (s. 32)

Under s. 32 (1), once an assessment order is made, the examining practitioner must:

• notify the authorised psychiatrist and provide a copy of the order, and
• to the extent that is reasonable:
  • inform the person subject to it of the making of the order
  • give the person a statement of rights and copy of the order
  • explain the purpose and effect of the order.

Once notified, under s 32(2) the authorised psychiatrist must ensure reasonable steps are taken to inform the following people (where relevant) that the order is made, and provide a copy of the order and statement of rights:

• any nominated person, guardian, carer (if variation will directly affect the carer and the care relationship)
• parent (if under 16) or
• Secretary of the Department of Health (previously the Department of Health and Human Services), if the person is subject to a family reunification order or a care by Secretary order.

Duration of assessment order (s. 34)

If a person is placed on an inpatient assessment order, there are 72 hours for them to be taken to the inpatient service. Once they are received at the service, the assessment order lasts for a maximum of 24 hours.

The order may be extended up to twice, to a maximum total of 72 hours, but only if the authorised psychiatrist determines on examination they are not able to decide if the criteria are met.

If a person is placed on a community assessment order, assessment must be within 24 hours, otherwise the order expires, with the capacity for the authorised psychiatrist to extend that on examination for up to two periods of 24 hours if unable to adequately assess.

NOTE: Unless there have been delays in transporting a person, or the authorised psychiatrist has been unable to determine whether the treatment criteria apply, assessment orders only last for 24 hours. They may be revoked earlier, immediately upon the authorised psychiatrist being satisfied that the treatment criteria do not apply.

Treatment on an assessment order (s. 38)

Under s. 38(2) a person cannot be treated while on an assessment order unless:

• they give informed consent (see s. 69), or
• a registered medical professional employed by the mental health service is satisfied that urgent compulsory treatment is necessary to prevent serious deterioration in their mental or physical health or serious harm to themselves or another person.

Variation of assessment order (s. 35)

There may be situations where a person’s condition deteriorates, so the examining practitioner decides the assessment order needs to be varied from a community to an inpatient order (but only if satisfied the assessment cannot occur in the community (s. 35(2)).

Alternatively, the order can be varied from an inpatient to a community assessment order. The same steps must be taken to notify the authorised psychiatrist and inform the relevant people of the variation (including the person subject to the order) as are required for the making of the order itself.

Temporary treatment orders

Under s. 36 a person must be examined by an authorised psychiatrist as soon as practicable after the assessment order is made (and if inpatient, as soon as received at the mental health service). However, prior to being examined (and before each examination), the authorised psychiatrist (to the extent reasonable) must explain to the person the purpose of the assessment.

If that authorised psychiatrist is satisfied that the person meets all of the treatment criteria, that person can be made subject to a temporary treatment order.

NOTE: the authorised psychiatrist making temporary treatment order for a person must not have made that person’s assessment order.

Considerations for making a temporary treatment order (s. 46)

The authorised psychiatrist must consider several factors in determining whether the treatment criteria apply, including the views and preferences of the person being examined and others.

Each of the treatment criteria (s. 5)

Has the authorised psychiatrist decided that the person meets all of the following treatment criteria:

• the person has a mental illness
• because the person has a 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 to another person
• the immediate treatment will be provided to the person if the person is subject to a temporary treatment order (or treatment order – where considered by the Mental Health Tribunal), and
• there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.

The views and preferences of the person being assessed, and other specified people

Under s. 46(2), in deciding whether the criteria apply, the authorised psychiatrist, to the extent that is reasonable in the circumstances, must have regard to all of 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 their advance statement
• the views of the person's nominated person
• the views of a guardian of the person
• the views of a person’s 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 a parent of the person, if the person is under the age of 16 years, and
• the views of the Secretary, if the person is the subject of a family reunification order or care by Secretary order.

Other information communicated to the authorised psychiatrist

The authorised psychiatrist may consider information communicated to them by people other than the person being assessed.

Notification and information requirements (s. 50)

Under s. 50(1), once a temporary treatment order is made, the examining practitioner must, to the extent that it is reasonable:

• inform the person subject to it of the making of the order
• give the person a statement of rights and copy of the order
• explain the purpose and effect of the order, and
• inform the person they will receive treatment in relation to their mental illness.

Under s. 50(2), as soon as practicable after the order is made, the authorised psychiatrist must:

• notify the Mental Health Tribunal that the order is made, and
• ensure reasonable steps are taken to inform the following people (where relevant) that the order is made, and provide a copy of the order and statement of rights:
  • any nominated person
  • guardian
  • carer (if order will directly affect the carer and the care relationship)
  • parent (if under 16) or
  • Secretary of the Department of Health (previously the Department of Health and Human Services), if the person is subject to a family reunification order or a care by Secretary order.

Types of temporary treatment orders (s. 45)

The temporary treatment order can be a:

• community temporary treatment order, allowing for treatment in the community, or
• inpatient temporary treatment order, where a person is taken to and detained in a designated mental health service.

Under s. 48, in deciding which type of order to make, the authorised psychiatrist must have regard to the views and preferences as outlined in s. 46(2).

Duration of the temporary treatment order (ss. 55, 61, 62)

A temporary treatment order remains in force for a maximum of 28 days unless it is revoked or expires, under:

• s. 55 (revoked by Mental Health Tribunal)
• s. 61 (revoked by authorised psychiatrist), or
• s. 62 (secure or court secure treatment order made, or detained under ss. 30(2) or 30A(3) of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)).

Under s. 192, and only under exceptional circumstances, the tribunal may extend a temporary treatment order for up to 10 business days.

If a temporary treatment order is varied (such as from community to inpatient order) this does not affect the duration of the order.

Treatment orders made by the Mental Health Tribunal

These orders can only be made by the Mental Health Tribunal after a hearing, and only if the person meets all of the treatment criteria (as set out above, s. 5). The tribunal can make, refuse to make, or revoke a treatment order (ss. 53–55).

When a hearing is held

The tribunal will hold a hearing if:

• the person applies to have their treatment order revoked, under s.60 (which can be done at any time, by their filling in an application form and sending it to the tribunal), or someone applies on their behalf), or
• the authorised psychiatrist applies for a treatment order because they believe the person continues to meet the criteria, under s.54 and have considered the relevant factors and:
  • the person’s temporary treatment order is about to expire (28 days) (s.53(1))
  • the treatment order was varied from community to inpatient order (within 28 days) (s.58), or
  • the person’s current treatment order (if one previously made by the Tribunal) is about to expire.

The authorised psychiatrist must apply to the Tribunal at least 10 business days before the expiry of the relevant treatment order. If an application is made under s.60, the Tribunal must hold the hearing as soon as practicable.

Considerations for making a treatment order (s. 55)

The considerations reflect those that the authorised psychiatrist must have regard to when making a temporary treatment order (above), and include the person’s views and preferences and those of others supporting or responsible for them, as well as meeting the treatment criteria. Likewise, if an inpatient order is being considered, the tribunal must be satisfied that treatment cannot be given in the community.

Types of treatment orders

A treatment order is an order that enables a person subject to it to be compulsorily:

• treated in the community (community treatment order (s. 52(1)(a)), or
• taken to, and detained and treated in, a designated mental health service (inpatient treatment order (s. 52 (1)(b)).

Duration of the treatment order (s. 57)

The tribunal will decide the duration of the order, but there are limits. If the person is under 18, both types of orders can only be made to last for a maximum of three months.

For people over 18 years:

• a community treatment order can be made for 12 months, or
• an inpatient treatment order can be made for six months.

Note: Under s. 61, if a person no longer meets all four criteria, at any time, the authorised psychiatrist must revoke the order. The person can ask the authorised psychiatrist to assess them for this reason.

Variation of treatment order (s. 58)

An authorised psychiatrist can vary a treatment order, from an inpatient to community-based treatment order, and vice versa. If the variation is to an inpatient order, the authorised psychiatrist must have been satisfied that treatment could not be given in the community (s. 58(2)).

The authorised psychiatrist must notify the tribunal of the variation, and provide a copy, and take reasonable steps to notify the person subject to the order of the variation, its purpose and effects and provide a copy of the varied order and relevant statement of rights. They must also have informed the nominated person, or other person referred to in s. 59(d).

If the person disagrees with the tribunal’s decision

If the tribunal makes a decision the person disagrees with, they can:

• apply for a revocation of the treatment order
• ask for (in writing) a statement of reasons for decision, and/or
• apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision.

A person has 20 business days after the decision to request a statement of reasons (s. 198). They also have 20 business days from the decision, or from receiving the statement of reasons, to apply to VCAT for a review (s. 201). Part of the process of review may be for the person to request a second psychiatric opinion, which the authorised psychiatrist must consider.

Leave on an assessment or treatment order (s. 64)

Section 64 provides for an inpatient to be granted a leave of absence from the mental health service for the purpose of receiving treatment or medical treatment, or for any other purpose the authorised psychiatrist is satisfied is appropriate.

While on the treatment order

Receiving treatment on a treatment order (Part 5)

The rationale for placing a person on a compulsory treatment order (temporary or otherwise) is that this enables them to be treated for mental illness and the decision-maker is satisfied that there is no less restrictive way for them to be treated.

Even though mental health services can be compulsorily provided, before treatment or medical treatment is administered to a person under the Mental Health Act their informed consent must be sought (s. 70), and the person seeking this consent must presume that they have the capacity to give informed consent (s. 70(2)).

Section 71 sets out when the authorised psychiatrist may make a treatment decision for the patient. The requirements are that:

• the person has no capacity for informed consent, or has capacity but has refused
• the treatment is not electroconvulsive treatment (ECT), and
• there is no less restrictive way to treat the person, other than the treatment proposed by the authorised psychiatrist.

Section 71(4) sets out the factors the authorised psychiatrist must consider in deciding whether there is a less restrictive way for the person to be treated. As set out earlier, people subject to treatment orders have the right to express preferences and views about treatment, including making advance statements, and the authorised psychiatrist must consider these, as well as other views, and factors such as any second psychiatric opinion and the consequences of not performing the treatment.

Remember also that the Act’s s. 10 objectives and s. 11 mental health principles still apply under compulsory orders – for example treatments with the best possible therapeutic outcomes, including least side effects, should be provided.

Urgent medical treatment may be provided if it is necessary to save the person’s life, prevent serious damage to their health or prevent their suffering or continuing to suffer significant pain or distress (s. 77).

More information

Introduction to the Mental Health Act 2014

Rights of people receiving treatment for mental illness

Additional resources

Independent Mental Health Advocacy (IMHA) supports people who are receiving, or at risk of receiving, compulsory mental health treatment to make decisions and have as much say as possible about their assessment, treatment and recovery.

This service is an integral component in realising the reforms and vision of the Mental Health Act 2014.

IMHA advocates are based in Melbourne, Geelong, Bendigo and Dandenong, but support people across Victoria. The service is independent, free and confidential.

See also the Department of Health website for:

• Victorian mental health information
• List of mental health services
• Framework for recovery-oriented practice
• Mental Health Act 2014 handbook.

For information about mental health treatment and services see:

• A National Framework for recovery-oriented practice: guide for practitioners and providers
• Mental Health Services in Australia – an online portal containing data on mental health services and reporting on the progress of mental health reform in Australia. The Latest release page outlines the data content available in the portal
• the Chief Psychiatrist's guidelines, including electroconvulsive treatment manual, the High Dependency Unit guidelines, compulsory treatment orders, inpatient leave of absence, mechanical restraint, seclusion and sexual safety.