Last updated 1 May 2020
This section does not concern the criminal law. It is concerned with people who may need assessment or treatment for mental illness, and how that assessment and treatment may come about. The situation where a person is charged with a criminal offence, which may then lead to an assessment being made of their mental health and possible detention under the Mental Health Act 2016 (Qld) (Mental Health Act), is dealt with later in this chapter.
Voluntary assessment and treatment
The fact that a person has a mental illness does not necessarily justify either involuntary assessment or involuntary treatment. A person who is feeling mentally unwell can go to a doctor for assessment or treatment in just the same way that people who have physical injuries or illnesses seek treatment. There are many people in the community who are receiving treatment for mental illnesses on an entirely voluntary basis.
Involuntary assessment and treatment
Sometimes, however, a person’s disturbed mental condition or disturbed behaviour means that it is necessary for other people to take steps to have the person assessed and, if necessary, given treatment.
Before a person can be given involuntary treatment for mental illness, they will need to be properly assessed. The purpose of involuntary assessment is to determine whether or not the person requires involuntary treatment.
Under the Mental Health Act there is effectively a three-stage process that may result in a person receiving involuntary treatment under the Act for mental illness:
- examination of a person to see if a recommendation for assessment should be made
- assessment of the person after a recommendation for assessment has been made
- the making of a treatment authority, authorising involuntary care and treatment.
How an examination can come about
Involuntary assessment begins with an initial examination by a doctor or authorised mental health practitioner, which can come about in different ways.
Examination by consent
A person may initially ask for, or consent to, an examination. The person might come in on their own or be brought in by a family member or friend. A doctor or authorised mental health practitioner can examine the person for the purpose of deciding whether to make a recommendation for assessment under the Mental Health Act (s 31). If they decide to make a recommendation for assessment and are concerned that the person will leave before that can be done, they can then detain the person for up to one hour to give them time to do the recommendation for assessment (s 36 Mental Health Act) and can use reasonable force for that purpose (s 37 Mental Health Act). If possible, they must also explain to the person what is happening (s 38 Mental Health Act).
Examination under an emergency examination authority
Ambulance officers or police can detain a person and bring them in to an authorised mental health service or a public hospital because they appear to be mentally disturbed and a risk to themselves or others. When this happens, an ambulance officer or police officer must make an emergency examination authority. The person will then be initially examined for a doctor or health practitioner to decide their treatment and care needs (s 157F Public Health Act 2005 (Qld) (Public Health Act)). The person can be detained in a public sector health service for an examination period of up to six hours, which can if necessary be extended to up to 12 hours (s 157E Public Health Act). Reasonable force can be used to detain or to examine the person (ss 157N, 157O Public Health Act).
These provisions of the Public Health Act link in with the Mental Health Act. A person brought in under an emergency examination authority may also be examined by a doctor or an authorised mental health practitioner for the purpose of deciding whether to make a recommendation for assessment under the Mental Health Act (s 31), and that Act will then apply if they decide to make a recommendation.
Examination under an examination authority issued by the Mental Health Review Tribunal
A person may be examined under an examination authority issued by the Mental Health Review Tribunal. The following people may apply to the tribunal for an examination authority (s 502 Mental Health Act):
- the administrator of an authorised mental health service
- a person authorised in writing by the administrator of an authorised mental health service
- a person who has received advice from a doctor or an authorised mental health service about clinical matters for the person who is the subject of the application.
The approved form must be used (s 725 Mental Health Act) and can be obtained from the Mental Health Review Tribunal website.
The Mental Health Review Tribunal can issue an examination authority only if it is satisfied of certain things including that the person has, or may have, a mental illness and does not, or may not, have the capacity to consent to treatment (s 504 Mental Health Act).
Once an examination authority is made by the Mental Health Review Tribunal, it authorises a doctor or authorised mental health practitioner to do an initial examination in order to decide whether to make a recommendation for assessment (s 31 Mental Health Act). The doctor or authorised mental health practitioner has various powers for example to enter certain places to find the person and to examine the person without consent. The person can also be detained for the purpose of the examination for up to six hours at an authorised mental health service (which can be extended to up to 12 hours). If the person is found at another place, they can be detained there for up to an hour, or transported instead to an authorised mental health service (s 32 Mental Health Act). Reasonable force can be used (s 33 Mental Health Act), and police can be asked for help (s 34 Mental Health Act). If possible, the doctor or authorised mental health practitioner should explain the examination authority to the person and give them an opportunity to cooperate (s 35 Mental Health Act).
What happens at an examination
The examination of a person in any of the situations just described is the first stage in the process that may lead to involuntary care and treatment for mental illness. A doctor or authorised mental health practitioner may examine the person to decide whether to make a recommendation for assessment for the person (s 31 Mental Health Act).
Recommendations for assessment
After examining the person, the doctor or authorised mental health practitioner may make a recommendation for assessment only if satisfied that the treatment criteria (s 12 Mental Health Act) may apply, and that there appears to be no less restrictive ways for the person to receive treatment and care for their mental illness (s 39 Mental Health Act). The wording here is deliberate—a final decision is not being made).
The recommendation for assessment must be made within seven days after the examination (s 39(2) Mental Health Act).
If the doctor examines the person and decides to make a recommendation for assessment, but considers that there is a risk the person will leave before the recommendation for assessment can be made, the doctor may detain the person for the period reasonably necessary, but no longer than one hour, to make the recommendation for assessment in an authorised mental health service or public sector health service facility (which would include the emergency department of a public hospital, but not a private doctor’s surgery).
A recommendation for assessment authorises the detention of the person in the authorised mental health service or public sector health service facility for up to 24 hours so that the assessment can be carried out. However, the doctor who is doing the assessment may extend that period to up to 72 hours if necessary to complete the assessment (s 45(2) Mental Health Act).
Once a recommendation for assessment has been made, the next step is the actual assessment. The purpose of the assessment is for an authorised doctor to decide whether to make a treatment authority for the person, which is effectively the end of the examination and assessment process. If a treatment authority is made, it authorises involuntary care and treatment.
If, on making the assessment of a person, an authorised doctor is satisfied that all of the treatment criteria (listed above) apply, and that there is no less restrictive way for the person to receive treatment and care for their mental illness, the authorised doctor may make a treatment authority (ss 48, 49 Mental Health Act). The authorised doctor must decide whether the category of the treatment authority is to be (a) inpatient or (b) community. There are criteria listed for making this decision (s 51 Mental Health Act).
If the category of treatment authority is ‘community’, the person will be able to receive care and treatment while living in the community. If the authorised doctor decides to make the category inpatient, the doctor must then decide whether to approve limited community treatment, and the nature of the community treatment (s 52 Mental Health Act). Limited community treatment is, in effect, leave from hospital. It can range from escorted leave in the hospital grounds up to living full time in the community with conditions.
Under the treatment authority, the person can be required to have involuntary treatment and care.
If the authorised doctor who makes the treatment authority is not a psychiatrist, the treatment authority has to be reviewed by a psychiatrist within three days, or in some cases seven days (ss 56, 57 Mental Health Act).