Victoria Legal Aid

Compulsory treatment after the tribunal has revoked an order

Following a tribunal’s decision to revoke a person’s order, a person should not be made subject to compulsory treatment unless there are changed circumstances.

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

In XX v WW and Middle South Area Mental Health Service [2014] VSC 564 (17 December 2014)External Link the Supreme Court ruled that doctors cannot order people to be detained for involuntary treatment (as it then was) simply because they disagreed 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)
  • asking to speak with the hospital’s legal team, drawing their attention to the decision in XX v WW and highlighting that the treating team may be acting contrary to law
  • 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.

Where resources are available, and the evidence is clear, a Supreme Court injunction can be considered. Further advice (for example, in relation to Victoria Legal Aid funding) may need to be sought.

More information

Read more about:

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au

Reviewed 25 March 2022

In this section