Last updated 31 January 2018

The Mental Health Review Tribunal is required to review all treatment authorities, forensic orders and treatment support orders at set intervals. The effect is that involuntary treatment is subject to independent review on a regular basis.

Review of treatment authorities

A treatment authority must be reviewed (s 413(1) Mental Health Act 2016 (Qld) (Mental Health Act)):

  • within 28 days after it is made
  • within six months after that review

and then

  • at intervals of not more than 12 months.

These are known as periodic reviews. They can be deferred in certain circumstances if the tribunal is satisfied that there are no new matters of relevance to be considered (s 414 Mental Health Act).

In addition, a treatment authority must be reviewed on an application by the patient, an interested person for the patient or the chief psychiatrist (s 413(2) Mental Health Act). The tribunal may also review a treatment authority at any time on its own initiative (s 413(3) Mental Health Act).

On a review, the tribunal must decide whether to confirm or revoke the treatment authority. If it confirms the treatment authority, it can make changes.

Review of forensic orders

A forensic order must be periodically reviewed (s 433(1) Mental Health Act):

  • within six months after it is made

and then

  • at intervals of not more than six months.

These periodic reviews can be deferred in some circumstances if the tribunal is satisfied there are no new relevant matters to be considered (s 434 Mental Health Act).

A forensic order must also be reviewed on an application by the patient, an interested person for the patient, the Attorney-General or the chief psychiatrist (or director of forensic disability if the forensic disability service is responsible for the patient) (s 433(2) Mental Health Act). The tribunal may also review the forensic order at any time on its own initiative (s 433(3) Mental Health Act).

On a review, the tribunal has the power to revoke or confirm the forensic order, but must confirm the forensic order if the tribunal considers that the order is necessary to protect the safety of the community because of the person’s mental condition (s 442(1) Mental Health Act).

As explained below, the tribunal also has the power to step a forensic order (mental health) down to a less restrictive alternative.

If the tribunal decides to confirm the forensic order, it may change the category of the order. If inpatient, the tribunal may make orders about limited community treatment and the conditions to apply to limited community treatment. In general, the tribunal is required in making these decisions to apply a test as to whether there is an unacceptable risk to the safety of the community.

Stepping down the order

The Mental Health Review Tribunal may revoke a forensic order (mental health) and make a treatment support order only if satisfied that a forensic order is not necessary to protect the safety of the community (s 450 Mental Health Act).

If the tribunal considers that neither a forensic order nor a treatment support order is necessary to protect the community, it may either:

However, the tribunal cannot make a treatment authority unless it is recommended by an authorised psychiatrist who has examined the person and considers that the treatment criteria apply and there is no less restrictive way for the person to receive treatment and care for their mental illness (s 451(2) Mental Health Act).

In summary, the Mental Health Act provides a process for a person who no longer needs to be on a forensic order to be stepped down to a less restrictive alternative. It also allows for a person to be progressively stepped down until they are well enough to be discharged from any form of involuntary order.

Reviews of treatment support orders

A treatment support order must be periodically reviewed (s 465(1) Mental Health Act):

  • within six months after it is made

and then

  • at intervals of not more than six months.

These periodic reviews can be deferred in some circumstances if the tribunal is satisfied there are no new relevant matters to be considered (s 466 Mental Health Act).

A treatment support order must also be reviewed on an application by the patient, an interested person for the patient, the Attorney-General or the chief psychiatrist (s 465(2) Mental Health Act). The tribunal may also review the treatment support order at any time on its own initiative (s 465(3) Mental Health Act).

On a review, the tribunal has the power to revoke or confirm the treatment support order, but must confirm the order if it considers that the order is necessary, because of the person’s mental condition, to protect the safety of the community (s 473(1) Mental Health Act). If the tribunal confirms the order, the tribunal can also make decisions about the category of the order and the conditions to which it is subject.

Reviews of fitness for trial

The Mental Health Review Tribunal must review the fitness for trial of a person who has been found temporarily unfit for trial by the Mental Health Court or a jury. For the first year, the reviews must be conducted at intervals of not more than three months, and after that at intervals of not more than six months (s 486(1) Mental Health Act).

A person’s fitness for trial must also be reviewed on an application by the patient, an interested person for the patient, the Attorney-General or the chief psychiatrist (or director of forensic disability if the forensic disability service is responsible for the person) (s 486(2) Mental Health Act). The tribunal may also review the fitness for trial of a person at any time on its own initiative (s 486(3) Mental Health Act).

If the tribunal finds that the patient is unfit for trial, the Director of Public Prosecutions must, within 28 days after receiving written notice of the tribunal’s decision, decide whether or not to discontinue the criminal proceedings (s 490(a) Mental Health Act).

If the patient has been found unfit for trial after three years (or seven years if the offence carries a maximum penalty of life imprisonment), the criminal proceedings are discontinued (s 491 Mental Health Act).

If the tribunal finds that the person is fit for trial, the person will be returned to the criminal court for the proceedings to continue, and the forensic order or treatment support order to which the person is subject ends (s 497 Mental Health Act).

Reviews of detention of minors in a high security unit

The Mental Health Review Tribunal must review the detention of a minor in a high security unit for treatment or care within seven days after the detention starts, and afterwards at intervals of not more than three months (s 499(1) Mental Health Act). The tribunal must also review the minor’s detention on an application made by, or on behalf of, the patient (s 499(2) Mental Health Act). Further, the tribunal may at any time, on its own initiative, review the minor’s detention in a high security unit (s 499(3) Mental Health Act).