Treatment orders

Treatment orders

A treatment order is an order made by the Mental Health Tribunal that enables a person to be given (further) compulsory mental health treatment.

It may be either a community treatment order (maximum of 12 months’ duration) or an inpatient treatment order (maximum six months’ duration). For young people under 18, both types of orders can only be made for a maximum of three months.

When the tribunal can hold treatment order hearings

A treatment order hearing can come about in four ways:

  • If the person is on a temporary treatment order the tribunal will automatically schedule a hearing before the expiry of that 28-day order (s. 53).
  • If the person is already on a treatment order and the authorised psychiatrist applies for a (further) treatment order the tribunal must conduct a hearing (s. 54). The psychiatrist must apply at least 10 days before the order’s expiry.
  • If the person is subject to either a temporary treatment order or treatment order and that person applies for revocation of that order the tribunal must conduct a hearing as soon as practicable (s. 60).
  • If the person’s community temporary treatment order or community treatment order is varied to an inpatient order the tribunal must conduct a hearing within 28 days of the variation to determine whether to make a treatment order (s. 58).

Powers of the tribunal

At a treatment order hearing, the Mental Health Tribunal must either:

  • make a treatment order, if satisfied that the person meets each and every one of the four treatment criteria, or
  • revoke the order to which the person is subject, if one or more of the treatment criteria are not met.

If the tribunal makes a treatment order, they must also determine the:

  • type of order – either:
    • a community treatment order (s. 52(1)(a)) or
    • an inpatient treatment order (s. 52(1)(b)).
  • duration of the order:
    • up to a maximum of 12 months for a community treatment order
    • six months for an inpatient order (for adults)
    • for a young person under 18 years for a maximum of three months in either case (s. 53, ss. 55–57).

While both types of order enable a person to be given compulsory treatment, the key difference between community and inpatient orders is that an inpatient order also enables a person to be taken to and detained in a designated mental health service in order to get that treatment.

The tribunal's powers in a treatment order hearing are the same, regardless of how the hearing is initiated.

Factors the tribunal considers in making a treatment order

The tribunal must consider specific factors when deciding whether the treatment criteria apply, which type of order to make – community or inpatient – and how long the order should be (s. 55(2)).

These factors include:

  • the person’s views and preferences about treatment (including those outlined in an advance statement if they have one)
  • their reasons and any recovery outcomes they want to achieve
  • their nominated person or guardian’s views (if they have one)
  • (in certain circumstances) the views of a carer and parent. This is discussed more in Temporary treatment orders. You can also read more about the rights of carers in the Mental health principles.

An inpatient order can only be made if the tribunal is satisfied the person cannot be treated in the community (s. 55(3)).

The tribunal should also apply the mental health principles, in particular, to ensure that the type and length of an order:

  • is least restrictive of the person
  • promotes full participation in the community
  • respects the person’s views and preferences
  • promotes their autonomy and dignity
  • allows them to make decisions involving a degree of risk (s. 11(1)(a)–(e)).

Key issues in the hearing

If your client is already on a temporary treatment order or treatment order, it is likely that the focus of your advocacy will be on preparing for and appearing at a tribunal hearing. The key issues in dispute are likely to be:

  • whether the tribunal can be satisfied that the treatment criteria are met and on what basis
  • which type of order your client should be placed on
  • whether treatment can be obtained in the community or otherwise without detention, or whether it can only be given in hospital
  • how long any order should be made for
  • your client’s views and preferences about their treatment and their plan for recovery, including treatment options and time frames.

General practice tips regarding treatment orders

  • A treatment order may only be made by the Mental Health Tribunal (s. 52(1)).
  • At any time, a person can apply to the tribunal for their treatment order to be revoked (s. 60).
  • Voluntary treatment should be preferred. However, where an order is made, a community rather than an inpatient treatment order should be made wherever possible. This is consistent with the mental health principles at s. 11(1)(a) and (b).
  • The tribunal must consider the person’s views and preferences about treatment and apply the mental health principles when deciding the type and duration of the order.
  • Even if a person is on a treatment order, they may still be able to get some of their treatment voluntarily.
  • The authorised psychiatrist must immediately revoke a person’s treatment order if the criteria no longer apply (s. 61).
  • Once a treatment order expires, a person can no longer be given compulsory mental health treatment. The authorised psychiatrist may apply to the tribunal before its expiry if they believe the treatment criteria are satisfied and a further compulsory order (a treatment order) is warranted (s. 54).
  • If a person’s (temporary) treatment order is revoked, then any compulsory ECT they are receiving must also cease. This is because section 92(1) makes clear the Act only authorises ECT to be performed on an adult who is a ‘patient’ (a person subject to an order for compulsory treatment). ECT for adults who are voluntary patients is outside the scope of the Act and can only take place with the person’s informed consent. See Electroconvulsive treatment (ECT).

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