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Compulsory Treatment Orders (Vic)

Persons in Victoria who have a mental illness and who require treatment for their health and safety or the safety of others may be required to undergo treatment under a compulsory treatment order. Compulsory treatment orders are orders that require a person to undergo treatment involuntarily (treatment without their consent). The legislation that contains the principles and criteria used when making such orders is the Mental Health Act 2014.

Types of compulsory treatment orders

There are three different compulsory treatment orders. These are assessment orders, temporary treatment orders and treatment orders.

Assessment order

This is an order made by a doctor or registered medical practitioner to have a person assessed by a psychiatrist. Such an assessment can either be carried out in hospital or in the community. An order for a person to be assessed as an inpatient in a hospital will last seventy-two hours. It allows for the time it will take to transport the person to the hospital and twenty-four hours for the assessment once they arrive in the hospital. The time for the assessment in hospital can be extended twice. The maximum length of an extension is forty-eight hours. If a person is to be assessed in the community, it will last for twenty-four hours.

Temporary treatment order

This is an order for a person to undergo a specific type of treatment. These types of orders are made by an authorised psychiatrist. They cannot last more than a period of twenty-eight days. Temporary treatment orders can be for a treatment to be carried out in a hospital or a community.

Treatment order

The Mental Health Tribunal is the body authorised to make this type of order. It cannot be made unless the person is already on a temporary treatment order. It is made after a hearing where the evidence show that all the criteria for a compulsory treatment order are met (criteria outlined below).

The Mental Health Tribunal will hold a hearing to determine whether a treatment order should be made when a temporary treatment order or current treatment order is about to expire. An authorised psychiatrist must make the application. The Mental Health Tribunal has the power to make a community treatment order or inpatient treatment order.

Where a community treatment order is made, treatment will be administered to the patient in the community. These orders can last for a maximum of twelve months when the patient is over eighteen years of age. Where an inpatient treatment order is made, treatment will be administered to the patient in hospital. These orders can be made for a maximum of six months, where the patient is over eighteen years of age. Where a patient is under eighteen, neither orders may exceed three months.

Criteria for the making of a compulsory treatment order

There are four criteria that all need to be met for either a temporary compulsory treatment order or compulsory treatment order to be made. These are:

  • The person who is to be the subject of the order has a mental illness;
  • It is due to that mental illness that treatment needs to be provided immediately to prevent:
    • Worsening of the person’s physical or mental health; or
    • Grave harm to the person or to another person;
  • A temporary treatment order or treatment order will ensure that person receives the immediate treatment they require;
  • There is no less restrictive alternative reasonably available to ensure that person gets the treatment they need.

There are also four criteria for an assessment order to be made. The only difference to the above four criteria is that instead of it being a requirement that the person has a mental illness, it is a requirement that they appear to have a mental illness. The criteria above are otherwise the same.

Compulsory treatment orders must be revoked if any time it is found that the person subject to the order no longer meets the above criteria. A person subject to a compulsory treatment order can ask to be assessed for whether they still meet the four required criteria.

What if a person is unhappy with a compulsory treatment order?

A person can pursue avenues for having their case reviewed if they are unhappy about this order. These avenues are outlined below.

Second Opinion

The subject person or someone they request to act on their behalf, their parent or guardian, or the Secretary of Human Services Secretary can seek a second opinion from another psychiatrist about what treatment is necessary. The psychiatrist involved in making the compulsory treatment order must consider this second opinion and decide whether the order should still apply. If they disagree with the second opinion, they must give reasons for why they disagree.

Revoking the order

The subject person or a person they request to act on their behalf, a guardian, a parent or the Secretary of the Department of Human Services can apply any time to the Mental Health Tribunal for a compulsory treatment order to be revoked. The Mental Health Tribunal must hold a hearing and determine whether the order should be revoked.

Other avenues for complaining about compulsory treatment orders

The Mental Health Complaints Commissioner, the Chief Psychiatrist, and the Victorian Ombudsman can all receive complaints about compulsory treatment orders or mental health treatments.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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