Types of Orders, & Custody and Escort Provisions
Types of Orders
An assessment order may be made by an approved doctor where it is believed a person has, or appears to have, a mental illness that requires, or is likely to require, treatment. It is given where the person cannot be properly assessed with regard to their illness or with regard to the making of a treatment order except under the authority of an assessment order; and where the person does not have the capacity to make decisions about their treatment for themselves. Assessment orders last only 24 hours, unless a second approved doctor affirms it, in which case it may be extended, once, for not more than 72 hours. It allows a person to be taken to and detained in an approved hospital for the purpose of further assessment.
Treatment orders can only be made by the Mental Health Tribunal. They allow a doctor to give a person treatment and, if required, to detain them in a hospital or approved facility for the duration of that treatment. The Tribunal, to make such an order, must be satisfied that the person has a mental illness; that without treatment the illness will, or is likely to, seriously harm the health or safety of that person or another; that the treatment will be appropriate and effective; and that it cannot be given adequately except under a treatment order. The person must lack the capacity to make a decision regarding treatment for themselves. A treatment order cannot last for more than 6 months.
Interim Treatment Orders
The Tribunal is also equipped to make interim treatment orders if satisfied that the delay in making a treatment order proper would or is likely to seriously harm the health or safety of the person or another person. It expires after 10 days or when the Tribunal makes a treatment order, whichever is sooner.
Seclusion and Restraint
Preconditions for seclusion and restraint of persons are set out in the Act (ss 56 & 57). Instances of seclusion and restraint must not last for more than 7 hours unless authorized, and can only be authorized by a medical practitioner or an approved psychiatric nurse. Restraint and seclusion may only be used if it is deemed reasonable in the circumstances; or, in the event of an emergency, where it is necessary to prevent harm to the patient, the facility in which they are being restrained or secluded, or to others.
Involuntary Detention in Secure Mental Health Units
The Act creates orders that allow for involuntary detention of a hospitalized patient in a Secure Mental Health Unit. The patient must first be examined by a qualified medical practitioner (usually a psychiatrist), and, upon referral to the Chief Civil Psychiatrist, the Chief Civil Psychiatrist must make an application for the patient’s detention to Chief Forensic Psychiatrist to approve.
A person cannot be arbitrarily detained. The Chief Forensic Psychiatrist must be satisfied that the patient is, by reason of their mental illness, a danger to himself or herself or to others; that the danger is so serious as to merit detention in the approved hospital untenable; that the Secure Mental Health Unit is the only appropriate place for the safe detention of the patient; and that the Unit has the resources to provide appropriate treatment and care.
The period of detention is determined by the Chief Civil Psychiatrist in consultation with Chief Forensic Psychiatrist. Twenty-four hours after the Chief Forensic Psychiatrist is satisfied that the patient no longer merits detention, the Chief Civil Psychiatrist is to be informed, and a request be made to the Chief Civil Psychiatrist to arrange for the patient to be transported from detention to an approved hospital.
Involuntary patients can be given leave of absence if the treating psychiatrist approves it. The patient must be given a written statement of the terms and conditions on which the leave of absence has been approved.
The Mental Health Act states that people must be given a written statement of legal rights, such as the right to clear, accurate and timely information, when an order under the Act is made. If information is withheld from the patient, the Mental Health Tribunal must be notified, and it may review why this has occurred on its own motion.
Custody and Escort Provisions
It will occasionally be necessary to ensure a patient attends for assessment or treatment. As such, the Act equips police with powers (Schedule 2) to ensure this occurs. Paramount to the provision of these powers is the concern of patient and public safety.
- ordinary and frisk-search powers to be used upon suspicion of the patient’s carrying dangerous items or items which could be used to assist escape;
- the power to use reasonable force against the patient if the patient resists being taken into custody or being put under escort; and
- the power to enter premises, causing as little damage as possible, to secure the patient to meet his or her obligation under a mental health order.
The custodian or escort must produce proof of their identity if requested to do so.
A person must not be taken into protective custody if they can be properly examined and assessed against the assessment or treatment criteria without being taken into custody. Patients are not to be taken into or held in custody or taken or held under escort by force unless:
- persuasion or other non-forceful methods did not succeed; or
- the authorized custodian or escort reasonably believes it would be futile or inappropriate to try alternative methods.
Importantly, patients are to be given as little discomfort, and subjected to as little delay, as the circumstances reasonably allow.
Escorts are not to interfere unreasonably with the enjoyment of a grant of leave of absence from an approved medical facility if the patient has been granted one.