Treatment criteria: compulsory treatment

Treatment criteria: compulsory treatment

The treatment criteria, as set out in section 5 of the Mental Health Act 2014, are four requirements that must each be satisfied before a person can be made subject to a temporary treatment order or a treatment order.

These criteria are different from the criteria under the previous Mental Health Act. The 2014 Act in some ways narrows the criteria, reflecting parliament’s clear intention to minimise the use and duration of compulsory treatment.

The treatment criteria

Under section 5 of the Act the treatment criteria are that:

  1. the person has mental illness
  2. because the person has mental illness, the person needs immediate treatment to prevent:
    1. serious deterioration in the person's mental or physical health, or
    2. serious harm to the person or to another person.
  3. 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
  4. there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.

Covered in this section

To help you understand these four treatment criteria, this section covers:

  • the key elements that must be satisfied for each criteria before a compulsory treatment order can be made
  • discussion points to assist in assessing your client’s situation against each criteria and ways in which they may be challenged
  • summaries of relevant cases.

Note: Given the context in which lawyers and advocates will be assisting clients, the section refers by and large to the Mental Health Tribunal needing to be satisfied of relevant matters before finding the criteria met on the evidence, however these apply equally to authorised psychiatrists in making temporary treatment orders.

Practice tips

  • The criteria should be considered sequentially. For example, the ‘mental illness’ the person is found to have under the first criterion (a) must necessarily be the same mental illness from which the ‘serious deterioration’ or ‘serious harm’ in (b) arises. So too, the ‘immediate treatment’ found to be met under s. 5(b) will then be the same ‘immediate treatment’ for the purpose of applying sub-sections (c) and (d).
  • In deciding whether the criteria are met, the tribunal must also ‘to the extent reasonable in the circumstances’ have regard to the range of factors at section 55(2), including the person’s views and preferences about treatment, their reasons and their recovery outcomes. Use this as an opportunity to highlight to the tribunal the person’s individual goals for the future and any reasons for challenging the proposed treatment or preferring alternatives.
  • The tribunal is developing its jurisprudence and publishing de-identified written reasons for its decisions, which are available on Austlii. Some decisions relevant to each of the criteria are noted in the following sections, and new decisions may be added in due course. Whether the criteria are satisfied will depend on the unique facts of each case and, whilst the tribunal is not bound by precedent from its own decisions, the cases illustrate how some tribunals are interpreting the relevant criteria.
  • Despite the change in criteria, in some cases, decisions made by the previous Mental Health Review Board may be relevant.

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