Involuntary treatment orders—statistics, legislation and reviews
The first half of this report focuses on indefinite detention within the
criminal or forensic mental health system. Part B of this report (Chapters 7–10)
will focus on the civil systems which lead to indefinite detention of people
with a cognitive or psychiatric impairment. These include involuntary treatment
orders under mental health frameworks, as well as orders under guardianship or
A range of evidence has been presented to the committee, and is
discussed in the following chapters, which indicates that civil frameworks—mental
health, guardianship and disability frameworks—are generally more informal
mechanisms than the forensic system. On one side, this often provides greater
flexibility in providing tailored solutions for individuals, but can also involve
less structured review rights or oversight, leading to unnecessarily prolonged
Part B of the report will also review the operation of the civil systems
used for detaining people to provide involuntary treatment. If recommendations
for early intervention and diversion from the forensic system are acted upon,
the civil system will be called upon to a greater extent to provide treatment
pathways. It is therefore of critical importance to assess the capacity of
those civil systems to deliver improved outcomes for patients leaving the
There are three key mechanisms for detaining people cognitive or psychiatric
impairment within the civil systems: mental health acts, disability acts and
Chapter 7 will focus on mental health acts, and will provide an overview
of mental health facilities and treatment order review provisions across the jurisdictions.
The mental health pathway to indefinite detention
A common entry point for a person to be detained indefinitely under a
scheduled mental health order, is where a referral to a designated mental
health facility or hospital for assessment is made by another party such as a
medical practitioner, or a friend or family member.
However, many referrals are made during an incident attended by a first
responder (generally a police or ambulance officer). Often first responders
make these referrals under duress and use the act of referral as a form of
crisis management to mitigate against a perceived risk of serious harm.
During an incident attended by a first responder, often an arbitrary
decision is made by the first responder as to whether or not a person is
immediately diverted to a mental health pathway or charged with a crime and
later enters the forensic mental health system. An individual first responder's
training and capacity to recognise a mental health situation and assess the
likelihood of risk of harm can be the deciding factors as to the pathway that
person will be diverted to for treatment.
For example, in New South Wales (NSW), first responders including police
officers and paramedics are empowered to:
apprehend and transport a person to a declared mental health
facility (DMHF) for psychiatric assessment if the officer believes the person:
is committing or has recently committed an offence; has recently attempted or
is probably going to attempt to kill himself or herself or someone else; or
will probably attempt to cause serious physical harm to himself or herself or
someone else (s. 22(1)(a)); and that it would be "beneficial
to the person’s welfare" to be dealt with under mental health, rather than
criminal, legislation (s. 22(1)(b)).
If a person is assessed by a medical officer within the DMHF and found
to be 'mentally disordered' or a 'mentally ill person' then they may be
detained in the DHMF for an indefinite period on an involuntary order, outlined
in greater detail below. If not detained on an involuntary order, they must be
returned to police custody (for possible charges) or released into the
Declared mental health facilities
There are three broad types of specialist mental health care in
Australia—community mental health care where the person resides in the
community, residential mental health care, which is mental health care
provided on an overnight basis in a domestic-like environment, or admitted
patient care provided in a specialist psychiatric hospital or psychiatric
unit within a hospital.
Community mental health care
Community mental health care (CMHC) is defined as 'government-funded and
-operated specialised mental health care provided by community mental health
care services and hospital-based ambulatory care services, such as outpatient
and day clinics'.
Nearly 14 per cent of the 8.7 million CMHC episodes recorded in 2013–14,
were for involuntary patients. However, these people are not held indefinitely
and are allowed to return to their place of residence after attending
treatment. This inquiry did not investigate involuntary community treatment
Residential mental health care
Residential mental health care (RMHC) is mental health care that is
provided on an overnight basis in a dedicated facility with a domestic-like
environment. A residential mental health service is a specialised mental health
employs mental health trained staff on-site
provides rehabilitation, treatment or extended care to residents
for whom the care is intended to be on an overnight basis and in a domestic-like
encourages the residents to take responsibility for their daily
These services include those that employ mental health
trained staff on‑site 24 hours per day and other services with less
intensive staffing. However, all these services employ on-site mental health
trained staff for some part of the day.
In 2013–14, the Australian Institute of Health and Welfare (AIHW) found
a national trend of an increase in RMHC episodes of nearly 75per cent over 5
years, but a decrease in the overall percentage of involuntary admissions from
29 per cent (2009-10) to 18 per cent (2013–14). Greater detail on the changing
rates of RMHC episodes are provided at the end of this chapter in a section on
Admitted patient care
Admitted patient care takes place within a clinical setting such as a
psychiatric hospital or a psychiatric unit within a hospital.
The AIHW found that:
In 2014–15, there were 157,104 mental health-related
separations with specialised psychiatric care; equivalent to a national rate of
6.8 per 1,000 population.
In 2014–15, there were 48,857 mental health-related
separations with specialised psychiatric care where the mental health legal
status was 'involuntary'—representing about a third (31.1%) of these
Involuntary mental health orders
Each state and territory in Australia has enacted legislation which allows
for the detention of people deemed at risk of harm to themselves or others, to
enable the provision of mental health treatment via an involuntary treatment
order (involuntary order).
Table 6.1 below, shows that there were 12 085 people being treated as
inpatients and 14 797 as outpatients subject to involuntary orders from the
relevant state or territory mental health review board or tribunal.
6.1: Numbers of involuntary mental health detention orders issued in each
jurisdictions and the locations of the detention
Involuntary mental health orders
Source: NSW Mental Health Review
Tribunal, 2014/15 Annual Report; Tasmanian Mental Health Tribunal, Annual
Report 2014–15; Victorian Mental Health Tribunal, 2014/15 Annual Report;
Queensland Director of Mental Health, Annual Report 2014–2015; South
Australian Chief Psychiatrist, Annual Report 2014-15; Western Australian
Mentally Impaired Accused Review Board (MIARB), 2014/15 Annual Report;
Northern Territory Department of Correctional Services, Annual Statistics
2013–14, p. 16; Law Council of Australia, Submission 72, pp 6–7;
Barriers 2 Justice, Submission 67; NT Government, Submission 75,
Each Australian state and territory has a mental health review board or
tribunal to provide an oversight and review process for all involuntary mental
health orders. These boards and tribunals are also empowered to make, renew and
vary mental health orders. The Royal Australian New Zealand College of
Psychiatrists submitted that there is great divergence between the various
state and territory mental health acts as to the criteria that must be applied
for involuntary treatment is enacted, and also in the processes that subsequently
review compulsory treatment orders.
Details on these boards and tribunals are provided below.
New South Wales
The NSW Mental Health Review Tribunal (MHRT) reviews 'involuntary
patients in mental health facilities, usually every three or six months, and in
appropriate cases, every twelve months, with forensic patients 'usually every
In its annual report, the MHRT noted that:
In 2014/15 of the 22 252 persons taken involuntarily to a
mental health facility or reclassified from voluntary to involuntary: 2 701
were not admitted; 2 491 people were admitted as a voluntary patient and 17 060
were detained as either a mentally ill or mentally disordered person - a total
of 19 551 admissions (including 1 720 of the 1 940 people who were reclassified
from voluntary to involuntary).
There were 6 633 mental health inquiries commenced with 5 558
involuntary patient orders made. Of these only 1 339 patients remained in a
mental health facility until the end of the involuntary patient order (which
could be made for a maximum of three months) and were reviewed by the Tribunal.
This means 4 219 people were discharged from a mental health facility or
reclassified to voluntary status prior to the end of their initial involuntary
[Of the 17 060 involuntary admissions, 12 018 were mentally
ill and 5 042 were mentally disordered].
As at 30 June 2015, there were 4100 involuntary order patients in
Queensland (QLD) mental health facilities of which 98 per cent were inpatients.
In 2014–15, the QLD Mental Health Tribunal (QMHT) reviewed 8165 involuntary
orders, of which the vast majority were confirmed (7981). On top of this,
nearly 5500 involuntary orders were revoked prior to hearing highlighting 'that
clinical assessment and review prior to the scheduled hearing promotes
voluntary acceptance of treatment negating the need for further use of
involuntary treatment for a significant number of patients. An involuntary
order must be reviewed 'within six weeks of the order being made and afterwards
of intervals of not more than six months'.
The Director of Mental Health highlights that 21 per cent of the nearly
24 200 people who have an open patient record at a public mental health
facility are involuntary patients.
Similar to NSW, involuntary assessment can be initiated by a front line
responder (police or ambulance officer) or medical professional (psychiatrist)
under an Emergency Examination Order (EEO). Of the 12 487 EEO's made in
2014–15, 44 per cent were made by ambulance officers and 56 per cent by police
The Tasmanian Mental Health Tribunal (TMHT) may make, vary, renew or
review an involuntary order under the Mental Health Act 2013 (Tas). In
the 2014–15 period, the TMHT made 552 interim orders, made 410 new orders,
varied 361 and renewed 123. The TMHT also reviewed 777 cases. These treatment
orders can only be issued for a period of up to 6 months and must be reviewed
within 30 days initially and then every 90 days thereafter. It is not clear
whether these are separate cases or contain multiple cases for individuals.
The Victorian Mental Health Tribunal (VMHT) reviews all 'involuntary'
mental health patients and made the following involuntary orders in 2014–15:
2 324 inpatient treatment orders;
1–6 week (10 per cent)
7–13 week (24 per cent)
14–20 week (7 per cent)
21–26 week (59 per cent) 
417 temporary treatment and permanent treatment orders revoked.
The maximum duration of an involuntary order in Victoria is six months.
There are two types of involuntary orders used in South Australia, inpatient
orders and community orders. An inpatient order allows a 'person to receive
compulsory, inpatient treatment for a mental illness'; whereas a community
order 'allows a person with a mental illness to receive compulsory,
community-based treatment for a mental illness'. At 30 June 2015, there were 8870
mental health treatment orders, of which 1543 were inpatient orders and 7327
were community orders. Overall this was an increase of about 10 per cent from
the previous year. These numbers include individuals who receive multiple
The South Australian Civil and Administrative Tribunal has powers to
review and make certain orders relating to the involuntary treatment and
detention of people with mental illness. This tribunal's work is quite complex
and reflects the fact that there are a number of different inpatient and community
orders for different treatment lengths (that is, short, medium and long).
In Western Australia, the Mental Health Review Board (MHRB) conducts
periodic reviews of the status of involuntary patients at least every six
months. The MHRB can review more often if they deem it necessary or if a
request is made. In 2011–12, there were 2955 involuntary orders commenced with
2626 detained in hospital and 329 on a community order. These numbers are
roughly similar over the preceding period. Other relevant orders were 936
orders that were continued with extension of a community order (298), issuance
of a community order on discharge from hospital (516), and revocation of community
order and readmission to hospital (122).
Australian Capital Territory
In 2014–15, there were 1020 people apprehended by a first
responder—police (723) and ambulance (158)—or medical practitioner (139). Of
those apprehended, there were 698 detained. Of those detained, 387 were kept
for 72 hours or less and 311 had applications lodged for an extension of
The Australian Capital Territory (ACT) Chief Psychiatrist is also
responsible for the 'treatment and care of a person to whom a psychiatric
treatment order (PTO) applies. A PTO can be issued for six months by the ACT
Civil and Administration Tribunal (ACAT) whereupon it requires review and
re-issue. There were 921 PTOs granted and 156 revoked by ACAT in 2014–15.
Although PTOs subject an individual to involuntary treatment, an additional
'restriction order' is required in order for someone to be involuntarily
detained or be 'required to reside at a specified place'. There were 14
restriction orders issued by ACAT in 2014–15 and all were in relation to a
'community care order'.
It is not clear how many of these are being held as an inpatient in a hospital
mental health unit. The ACT currently does not have a secure mental health
unit, but is constructing a new low to medium security facility, expected to
open in late 2016.
There were 235 involuntary detention (inpatient) orders issued in the
Northern Territory (NT) in 2012–13. A further 252 community management orders
were also issued. These statistics represent a 14 per cent decrease and a 95
per cent increase respectively since 2011. Over 63 per cent of matters
scheduled before the NT Mental Health Review Tribunal were with Aboriginal and
Torres Strait Islander peoples.
Reviews of involuntary mental health order legislation
This section will examine and summarise key findings of recent reviews into
the administration of involuntary mental health orders, conducted at the
national level and for New South Wales, Queensland, South Australia and the
Australian Capital Territory.
National —Australian Law Reform
In 2014, the Australian Law Reform Commission (ALRC) conducted an
inquiry into Commonwealth laws and legal frameworks that impact on the
recognition of people with disability before the law. As discussed in Chapter
2, the report investigated the system of 'unfit to plead' and forensic mental
health orders. Importantly, it also included decisions on medical treatment in
the terms of reference.
In the final report, Equality, Capacity and Disability in
Commonwealth Laws, the ALRC proposed National Decision Making Principles
(NDMP) (and guidelines) that would apply to the provision of disability and
health services including mental health services. The NDMP are:
All adults have an equal right to make decisions that affect
their lives and to have those decisions respected.
Persons who require support in decision-making must be provided
with access to the support necessary for them to make, communicate and
participate in decisions that affect their lives.
The will, preferences and rights of persons who may require
decision-making support must direct decisions that affect their lives.
Laws and legal frameworks must contain appropriate and effective
safeguards in relation to interventions for persons who may require
decision-making support, including to prevent abuse and undue influence.
The ALRC report recommended state and territory governments review laws
and legal frameworks that impact the decision making rights of people with
disability and that:
Any review should include, but not be limited to, laws with
respect to guardianship and administration; consent to medical treatment;
mental health; and disability services.
The ALRC report also highlighted new mental health legislation in
Tasmania and Victoria which 'has changed the focus of criteria for the
involuntary detention and treatment from the risk of harm to a person’s
capacity to consent to treatment' and 'protects the rights of mental health
patients through statements of rights'. These rights include the:
to communicate, make advance statements and have a nominated person to support
them and help represent their interests. The role of a nominated person is to
receive information about the patient; be one of the persons who must be
consulted in accordance with the Act about the patient’s treatment; and assist
the patient to exercise any right under the Act. A person can only
nominate another person in writing and the nomination must be witnessed. A
nomination can be revoked in the same manner by the person who made the
nomination or if a nominated person declines to act in the role.
As outlined in Chapter 2, in 2015, with the agreement of all Australian
Governments, the National Mental Health Commission (NHMC) commenced 'a project
to look at best practice in reducing and eliminating the seclusion and
restraint of people with mental health issues and to help identify good
practice approaches'. The outcomes of that project are discussed in greater
detail in a section on 'restrictive practice' in Chapter 9.
New South Wales
In May 2013, the NSW Ministry of Health concluded a review into the Mental
Health Act 2007 which assessed current legislation and practice to improve
mental health services.
Mental Health Amendment Act (Statutory Review) Act 2014 was passed in
late 2014. The amendments sought to align the NSW approach to 'national
and international trends towards a consumer-led approach to treatment.'
The key changes were:
requirements that clinicians make every effort to take into
account the consumers' views and wishes about their treatment to ensure the
principles of recovery are supported;
increased safeguards that protect the rights of people with
mental illness such as enhanced rights of young people undergoing treatment;
strengthened emergency mental health care by empowering more
clinicians to undertake assessments – a measure which will save mental health
consumers in country areas from arduous travel in seeking assessment of their
mental health condition and treatment; and
recognising the need for a consumer’s primary care provider to
receive certain information.
A subtle amendment to the objects and principles of the Act saw the
replacement of 'control' with 'to promote the recovery of', with the effect
being that the first object of the Act now reads:
(a) to provide for the care and treatment of, and to
promote the recovery of, persons who are mentally ill or mentally
The review of the Queensland Mental Health Act 2000 commenced in
July 2013 with a discussion paper released in May 2014.
This paper made a number of recommendations with regard to involuntary
detention and treatment of people with mental illness. Key recommendations
An authorised doctor may not make both a recommendation for
assessment and an involuntary treatment order for the same person in the same
examination and assessment process, unless the doctor is located in a regional,
rural or remote area designated by the Director of Mental Health.
Simplification of documentation leading up to and including
Timely transfer of acutely unwell prisoners from prison to an
authorised mental health service.
Clarification of treatment plans, and that statutory requirements
for treatment and care of involuntary patients should be aligned with 'good
clinical practice'. Improved recognition of and consultation by medical
professionals with the involuntary patient's family and carers.
Increased clarity on the role and powers of the Mental Health
Improved provisions that provide 'consistency, clarity and
effectiveness of restraint and seclusion'. These improved provisions should
lead to a reduction in the use of restrictive practices and improve safeguards
when they are used.
The Queensland parliament has recently passed the Mental Health Act
2016. The main objects of the Bill are:
- to improve and maintain the health and wellbeing of persons
with a mental illness who do not have the capacity to consent to treatment
- to enable persons to be diverted from the criminal justice
system if found to have been of unsound mind at the time of an alleged offence
or to be unfit for trial, and
- to protect the community if persons diverted from the
criminal justice system may be at risk of harming others.
The Victorian Government recently passed the Medical Treatment
Planning and Decisions Bill 2016 (Bill), which provides for the Victorian
Civil and Administrative Tribunal to make an order in relation to the decision
making capacity of a person in relation to medical decisions, and establishes
who can be appointed as a medical decision maker of behalf of a person deemed
not to have such capacity. The Bill also contains provisions around advanced
The Victorian Government stated the reasons for the change was to give
statutory recognition to advance care directives, and to 'simplify Victoria's
medical treatment laws to clarify people's rights and obligations by removing
the current array of relevant laws to create a single framework for medical
treatment decision making for people without capacity.' The changes include
separating medical decisions from other powers of attorney to ensure such
decisions are considered separately from issues such as financial decisions.
The South Australian Mental Health Act 2009 was reviewed by the
Office of the Chief Psychiatrist with a report issued in May 2014. It should be
noted that SA is the only jurisdiction that has three levels of inpatient and
community treatment orders that reflect the differing durations of illnesses
and treatment (i.e. short, medium and long).
This review found that
Level 1 community orders were underutilised and recommended that
these types of involuntary orders be made more accessible by removing the
requirement for these to be reviewed by the Guardianship Board.
Broader use of and easier access to Level 1 community orders may lead to a reduction
in Level 1 inpatient treatment orders (inpatient orders).
There is a need for early revocation of level 3 orders if a
psychiatrist deems that a patient has sufficiently recovered to continue their
treatment in the community without a review tribunal hearing.
Simplification of the administrative requirements for
A 'threshold criteria for involuntary treatment should include a
capacity criterion' as is the case in NT, Queensland, Tasmania and WA'.
The impact of the review recommendation on practise in South Australia
is not known to the committee.
Australian Capital Territory
A review of the Mental Health (Treatment and Care) Act 1994 commenced
The Mental Health Act 2015 was passed in late 2015. This new Act
incorporates some of the suggested changes made during the review of the former
A focus on recovery.
Availability and access to early preventative treatment for
people with mental illness.
Extension of permissible period for involuntary detention from 10
up to 14 days.
That the ACT Civil and Administrative Tribunal must take into
account the following when making a forensic mental health order:
whether the person consents, refuses to consent or has the
decision-making capacity to consent, to the proposed treatment, care or
whether there are reasonable grounds that the person has
seriously endangered or is likely to seriously endanger public safety.
A new scheme for the transfer of prisoners with a mental illness
from a correctional facility to an approved mental health facility.
The committee notes work undertaken at a Commonwealth level to provide
advice to states and territories on ways to make mental health laws more
consistent across the jurisdictions, particularly with a view to sharing best
Australian Law Reform Commission's Equality, Capacity and
Disability in Commonwealth Laws report, and
Council of Australian Governments National Framework for
Reducing and Eliminating the Use of Restrictive Practices in the Disability
However, the implementation of best practice initiatives across
Australia has been left to states and territories to address individually and
remains patchy at best. It is clear that a significant task remains for some
states and territories to bring mental health acts into line with nationally
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