Last updated 10 May 2016     This chapter is currently under review.

The Mental Health Act 2000 (Qld) (Mental Health Act) distinguishes between involuntary assessment and involuntary treatment. It is important to be aware that the fact that a person has a mental illness does not necessarily justify involuntary assessment or treatment under the Act. Involuntary assessment is a first step towards involuntary treatment. In other words, the purpose of involuntary assessment is to determine whether the person requires involuntary treatment.

Before an involuntary assessment can be carried out, there are specific assessment criteria that must be satisfied. If the criteria are satisfied (see below), an involuntary assessment is carried out by an authorised doctor. Its purpose is to determine whether the person requires involuntary treatment.

The Mental Health Act also lists the treatment criteria that the authorised doctor must consider. All of these criteria must be satisfied before the doctor can authorise involuntary treatment by making an involuntary treatment order.

Involuntary assessment criteria

The following assessment criteria, based on available information, must all be met:

  • The person appears to have a mental illness.
  • There is a risk that the person may:
    • cause harm to themselves or someone else
    • suffer serious mental or physical deterioration.
  • The person requires immediate assessment.
  • The assessment can properly be made at an authorised mental health service.
  • There is no less restrictive way of ensuring the person is assessed.

For persons living in the community (not in custody or before a court), the person must lack the capacity to consent to be assessed or have unreasonably refused to be assessed. It is only the person’s own consent which is to be considered (e.g. consent given by a guardian appointed under the Guardianship and Administration Act 2000 (Qld) is not effective (s 13 Mental Health Act).

Involuntary assessment of people living in the community

Assessment documents

To authorise the involuntary assessment of a person (s 16 Mental Health Act) (there are separate provisions for people before a court or in custody), the following assessment documents must be provided:

  • a request for assessment made by an adult who has seen the person within three days and reasonably believes that the person has a mental illness requiring involuntary assessment (ss 17–18 Mental Health Act)
  • a recommendation for assessment by a doctor or authorised mental health practitioner appointed by the Director of Mental Health, who has examined the person within the preceding three days. The recommendation is in force for seven days after it is made (ss 19–21 Mental Health Act).

Once the assessment documents are in force, a health practitioner (e.g. a doctor, nurse, occupational therapist, psychologist, social worker or ambulance officer) or other person with recognised qualifications may take the person to an authorised mental health service for assessment, with the assistance of the police if necessary (s 25 Mental Health Act).

There are two alternative ways of having a person examined. One is by making an application for a justices examination order, the other is an emergency examination order. The latter can be used if there is some urgency in having the person examined. The purpose of these orders is to enable an examination to be carried out in order for a doctor or authorised mental health practitioner to decide whether a recommendation for assessment should be made.

Justices examination orders

Where necessary, an application can be made to a magistrate or a justice of the peace. An order can be obtained if the magistrate or justice of the peace reasonably believes that the person has a mental illness and needs to be examined, and that the examination cannot properly be carried out unless the order is made. The order has effect for up to seven days. It authorises a doctor or mental health practitioner to go to where the person is in order to carry out an examination. The doctor or mental health practitioner can then decide whether a recommendation for assessment should be made. Only if a recommendation for assessment is made can the person be taken to an authorised mental health service for assessment (ss 27–31 Mental Health Act).

Emergency examination orders

A police officer or an ambulance officer who reasonably believes that a person has a mental illness, and there is an imminent risk of significant physical harm to the person or someone else, may take the person to an authorised mental health service for examination and make an emergency examination order.

Likewise, a psychiatrist has the power to make an emergency examination order in similar circumstances.

An emergency examination order authorises the detention of the person for up to six hours so that they can be examined by a doctor or authorised mental health practitioner. The purpose of the emergency examination order is to ensure that the person is examined so that, if necessary, a recommendation for assessment can be made (ss 33–36 Mental Health Act).

Detention for involuntary assessment

Once the assessment documents (request for assessment and recommendation for assessment) are in force, the Mental Health Act provides for the detention of the person in an authorised mental health service for the purpose of involuntary assessment. The person can be detained initially for not longer than 24 hours, which can be extended by an authorised doctor by written declaration for further periods of 24 hours up to a maximum of 72 hours (s 47 Mental Health Act).

Involuntary assessment and detention before a court or in custody

Assessment documents

The Mental Health Act makes provisions for a person who is before a court or in custody to be involuntarily detained in an authorised mental health service for assessment. The following assessment documents are required:

  • a recommendation for assessment by a doctor or an authorised mental health practitioner who has examined the person within three days (ss 50–52 Mental Health Act)
  • an agreement for assessment by the administrator of the authorised mental health service or, if it is in the public sector, the Director of Mental Health (ss 53–56 Mental Health Act).

Once those assessment documents are in force, a court assessment order is required if the person is before a court (s 58 Mental Health Act). If the person is in custody, their custodian may authorise the assessment with a custodian’s assessment authority (ss 65–66 Mental Health Act).

Detention as a classified patient

If a court assessment order or custodian’s assessment authority is in force, the person must be taken to an inpatient facility of an authorised mental health service as soon as practicable, and the person becomes a classified patient who can then be detained for assessment and treatment (s 69 Mental Health Act).

Within three days after becoming a classified patient, the person must be examined by an authorised doctor for the authorised mental health service to decide whether the person has a mental illness, and whether they need to be detained for treatment. If the authorised doctor decides that the person needs to be detained for treatment, the doctor must ensure that a treatment plan is prepared and must talk to the patient about the treatment. After that, regular assessments must be carried out (ss 71–73 Mental Health Act).

Effect on legal proceedings

Proceedings for any state offence are suspended as long as a person remains a classified patient (s 75 Mental Health Act). This does not prevent a classified patient being granted bail or being remanded in custody by a court, nor does it prevent the prosecution for an offence from being discontinued (s 77 Mental Health Act).

The person ceases to be a classified patient if bail is granted or the prosecution is discontinued (unless the patient is serving a sentence of imprisonment or detention under a court order). The person will also cease to be a classified patient if their period of imprisonment or detention ends (s 99 Mental Health Act), if the Attorney-General decides that court proceedings are to be continued or discontinued, or on a decision by the Mental Health Court on a reference to it. However, if the patient is serving a sentence of imprisonment or detention under a court order, they will continue to be a classified patient.

The fact that a person ceases to be a classified patient does not prevent them from continuing to be an involuntary patient under another provision of the Mental Health Act.

Ceasing to be a classified patient

If an authorised doctor decides that a patient does not need to continue to be detained as a classified patient, the doctor must give the Director of Mental Health a report (s 74 Mental Health Act). If the director is then satisfied that the classified patient does not need to be detained, there are procedures for taking the person back to court or to return the person to custody (ss 85–92 Mental Health Act). Once the patient is taken from the authorised mental health service, the administrator of the mental health service ceases to have custody of the patient, who then ceases to be a classified patient.

Involuntary treatment criteria

The following treatment criteria must all be met:

  • The person has a mental illness.
  • The person’s illness requires immediate treatment.
  • The proposed treatment is available at an authorised mental health service.
  • Because of the person’s illness, there is an imminent risk that the person may cause harm to themselves or someone else, or the person is likely to suffer serious mental or physical deterioration.
  • There is no less restrictive way of ensuring the person receives appropriate treatment for the illness.
  • The person lacks the capacity to consent to be treated for the illness or has unreasonably refused proposed treatment for the illness.

As with the assessment criteria, only the person’s own consent is to be considered (e.g. not the consent of a guardian (s 14 Mental Health Act).

Involuntary treatment orders

If, on the assessment of a patient, an authorised doctor of an authorised mental health service is satisfied that the necessary criteria (the treatment criteria) apply to the patient, the doctor may make an involuntary treatment order for the patient (s 108 Mental Health Act).

The authorised doctor must ensure that a treatment plan is prepared for the patient (s 110 Mental Health Act) and must tell the patient about the order and the treatment (s 111 Mental Health Act). Regular assessments must then be carried out.

An involuntary treatment order must be made by a psychiatrist or an authorised doctor and confirmed by a psychiatrist. It then continues in force until it is revoked either by an authorised doctor for the patient’s treating health service, by the Director of Mental Health or on a review or appeal against a review decision. However, it also ends if the patient does not receive treatment under the order for six months (s 118 Mental Health Act).

The Mental Health Act makes provision for different categories of involuntary treatment orders. It also sets out the requirements of a patient’s treatment plan. An authorised doctor may authorise limited community treatment for the patient in certain situations and with the necessary approvals or authorisation. The specific requirements are set out in s 129 of the Mental Health Act.

Restrictions on some treatments

There are specific requirements before electroconvulsive therapy can be carried out, and for the use of restraint and seclusion.

A doctor can only perform psychosurgery with the informed consent of the patient and with the approval of the Mental Health Review Tribunal.

Insulin induced coma therapy and deep sleep therapy are specifically prohibited. There is a penalty of up to two years imprisonment.

The allied person

A person who is detained for assessment and/or later for treatment becomes an involuntary patient. An involuntary patient can choose someone to be their allied person. If they are not capable of choosing an allied person, the Mental Health Act sets out who is to have that role.

The purpose and role of an allied person is to help an involuntary patient represent their views, wishes and interests about assessment, detention and treatment under the Act.

The allied person is to be notified about the patient’s involuntary admission and when reviews and treatment applications are being held. The allied person can make applications on behalf of the patient to the Mental Health Review Tribunal and can attend hearings of the tribunal to assist the patient (ss 339–343 Mental Health Act).