Temporary treatment orders

A temporary treatment order authorises the provision of compulsory mental health treatment.

Processes are described in this chapter and illustrated in the temporary treatment orders flow chart.

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Temporary treatment orders flowchart

pdf 2.73 MB | Updated: 29 August 2023

Purpose of a temporary treatment order

A temporary treatment order enables an authorised psychiatrist to provide compulsory treatment to a patient.

A temporary treatment order can either be a community temporary treatment order or an inpatient temporary treatment order.

If a community temporary treatment order is made the person is treated in the community.

If an inpatient temporary treatment order is made the person can be taken to and detained and treated in a designated mental health service.

How a temporary treatment order is made

Examination

An authorised psychiatrist may make a temporary treatment order for a person who is subject to an assessment order or a court assessment order if the authorised psychiatrist:

• has examined the person; and
• is satisfied that the compulsory treatment criteria apply to the person.

The person who makes a temporary treatment order for a person subject to an assessment order cannot be the same person who made that assessment order.

The examination must be in person unless this is not practicable in which case the examination may be done remotely.

The Chief Psychiatrist will issue guidelines to assist in determining whether or not it is practicable in the circumstances for an examination to be conducted in person. These guidelines will be published on the Department of Health website when finalised.

Before examining the person, the authorised psychiatrist must identify themselves, inform the person they will be examined under an assessment order and take reasonable steps to explain the purpose of the examination. There are requirements that must be followed when communicating under the Act.

Determining if the compulsory treatment criteria apply

In determining whether the compulsory treatment criteria apply to a person the authorised psychiatrist must have regard, to the extent that is reasonable in the circumstances, to:

• the person’s views and preferences about treatment, and any beneficial alternative treatments, including:
  • views or preferences in the person’s advance statement of preferences if they have one; and
  • views or preferences expressed by the person’s nominated support person if they have one
• the reasons the person has those views and preferences, including any recovery outcomes they would like to achieve
• the views of the person’s guardian, if they have one
• the views of any carer, if the authorised psychiatrist is satisfied that making a temporary treatment order will directly affect the care relationship
• the views of a parent of the person, if the person is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

An authorised psychiatrist will have fulfilled this obligation if reasonable attempts are made to find out the views of those listed above, even if they are not able to obtain the views of all. What is reasonable in the circumstances will vary on a case-by-case basis as will the weight that should be given to these views in making the determination.

The authorised psychiatrist may also have regard to any other relevant information, including information communicated to the authorised psychiatrist by any other person.

Before making a temporary treatment order the authorised psychiatrist must give proper consideration to the decision making principles for treatment and interventions.

Setting of temporary treatment order – community or inpatient

The authorised psychiatrist making the temporary treatment order must determine whether the order is to be:

• a community temporary treatment order – which means the person must be treated in the community; or
• an inpatient temporary treatment order – which means the person needs to be taken to a designated mental health service to be provided treatment.

An authorised psychiatrist may only make an inpatient temporary treatment order if satisfied that the person cannot be treated in the community.

Duration of a temporary treatment order

A temporary treatment order expires 28 days after it is made (beginning on and including the day the order was made), unless revoked or it expires because:

• the Mental Health Tribunal makes a treatment order for the person;
• the person is made subject to a court secure treatment order or a secure treatment order; or
• the person is detained in a designated mental health service under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

A variation of the setting of a temporary treatment order does not affect the duration of the order.

An authorised psychiatrist must immediately revoke a temporary treatment order if the compulsory treatment criteria no longer apply to the person.

Contents of Temporary treatment order

A temporary treatment order must state whether the order is a community temporary treatment order or an inpatient temporary treatment order and must include:

• the name of the person to be treated under the order
• the name, qualification and signature of the authorised psychiatrist making the order
• the time and date the person was examined
• the time and date the order was made
• whether the order is a community temporary treatment order or an inpatient temporary order
• the designated mental health service which is to be responsible for the person’s treatment
• the nature and effect of a temporary treatment order
• the duration of the order.

The MHWA 110 form should be used when making a Temporary Treatment Order.

Once a Temporary treatment order is made

If the order is an inpatient temporary treatment order

If the person is not already at a designated mental health service and an inpatient temporary treatment order is made, the authorised psychiatrist must ensure that arrangements are made for the person to be transported to the responsible designated mental health service as soon as practicable. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

Informing the person that a temporary treatment order has been made

As soon as practicable after the order is made, the authorised psychiatrist must ensure all reasonable steps are taken to:

• inform the person that they are subject to a temporary treatment order and will receive treatment for their mental illness
• explain the purpose and effect of the order to the person
• give the person a copy of the temporary treatment order and a copy of the relevant statement of rights.

The requirements for communicating under the Act must be followed.

Notifying the Mental Health Tribunal that a temporary treatment order has been made

As soon as practicable after a temporary treatment order is made, the authorised psychiatrist who makes the order must notify the Mental Health Tribunal that an order has been made.

The Mental Health Tribunal must conduct a hearing before the order expires to determine whether to make a treatment order for the person.

Notifying the non-legal mental health advocacy service that a temporary treatment order has been made

An authorised psychiatrist who makes a temporary treatment order for a person must ensure the non-legal mental health advocacy service provider is notified. The notification to the non-legal mental health advocacy service provider must be made in accordance with the protocols issued by the Chief Officer. These protocols will be published on the Department of Health website once finalised.

Others to be informed that a Temporary treatment order has been made

As soon as practicable after making a temporary treatment order, the authorised psychiatrist must ensure all reasonable steps are taken to inform specified associated people that the order has been made and give these people a copy of the order and the relevant statement of rights.

The associated people to be informed about the making of a temporary treatment order are the person’s:

• nominated support person, if they have one
• guardian, if they have one
• carer, if the authorised psychiatrist is satisfied that the making of the order will directly affect the carer and the care relationship
• a parent, if the person is under the age of 16 years.

For more information on these terms, see Terms and definitions.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

Providing treatment during a Temporary treatment order

A person subject to a temporary treatment order is to be given treatment for their mental illness.

Compulsory mental health treatment can be given to a person on a temporary treatment order, however, voluntary treatment is preferred.

The informed consent of a person must be sought before treatment (or medical treatment) is given to a person, regardless of their legal status under the Act. This means that informed consent of the person subject to a temporary treatment order must be sought.

The Act sets out the circumstances in which an authorised psychiatrist may make a treatment decision for a person on a temporary treatment order who does not give informed consent to the proposed treatment or does not have capacity to give informed consent.

Variation of a temporary treatment order

Variation of setting - community or inpatient

An authorised psychiatrist may:

• vary a community temporary treatment order to an inpatient temporary treatment order; or
• vary an inpatient temporary treatment order to a community temporary treatment order.

A community temporary treatment order can only be varied to an inpatient temporary treatment order if the authorised psychiatrist is satisfied that the person cannot be treated in the community.

A variation of setting does not change the duration of the order.

If a community temporary treatment order is varied to an inpatient temporary treatment and the person is not already at a designated mental health service, the authorised psychiatrist must ensure that arrangements are made for the person to be transported to the responsible designated mental health service as soon as practicable. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

Variation of responsible designated mental health service

An authorised psychiatrist may vary a temporary treatment order to specify that a different designated mental health service will be responsible for the person’s treatment if:

• the authorised psychiatrist is satisfied the variation is necessary for the person’s treatment; and
• an authorised psychiatrist for the designated mental health service that will become responsible for the person’s treatment approves the variation.

The Chief Psychiatrist may direct an authorised psychiatrist to vary an order to specify that a different designated mental health service will be responsible for the person’s treatment if the Chief Psychiatrist is satisfied the variation is necessary for the person to be treated.

If an inpatient temporary treatment order is varied to specify that a different designated mental health service will be responsible for the person’s treatment the authorised psychiatrist must ensure that arrangements are made for the person to be transported to the responsible designated mental health service as soon as practicable. Authorised persons may transport the person and have powers under the Act if a person is required to be taken to a designated mental health service.

A person has a right to apply to the Mental Health Tribunal for a review of a decision to vary a temporary treatment order to transfer responsibility for a person’s treatment to a different designated mental health service. The application must be made within 20 business days.

Requirements before varying a temporary treatment order

Before varying a temporary treatment order the authorised psychiatrist or Chief Psychiatrist (as relevant), must have regard, to the extent that is reasonable in the circumstances, to:

• the person’s views and preferences about the proposed variation, including-
• views or preferences in the person’s advance statement of preferences if they have one; and
• views or preferences expressed by the person’s nominated support person if they have one
• the reasons the person has those views and preferences, including any recovery outcomes they would like to achieve
• the views of the persons guardian, if they have one
• the views of any carer, if the authorised psychiatrist or chief psychiatrist is satisfied that the proposed variation will directly affect the care relationship
• the views of a parent of the person, if the person is under the age of 16 years
• the views of the Secretary to the Department of Families, Fairness and Housing if the person is the subject of a relevant child protection order.

For more information on these terms, see Terms and definitions.

These obligations will be fulfilled if reasonable attempts are made to find out the views of those listed above even if they are not able to obtain the views of all. What is reasonable in the circumstances will vary on a case-by-case basis as will the weight that should be given to these views in making the determination.

Before making a decision to vary the temporary treatment order the authorised psychiatrist must give proper consideration to the decision making principles for treatment and interventions.

Information requirements for varied temporary treatment orders

Variation of setting - notification of Mental Health Tribunal and non-legal mental health advocacy service provider

As soon as practicable after the setting of a temporary treatment order is varied, the authorised psychiatrist must ensure:

• the Mental Health Tribunal is notified; and
• the non-legal mental health advocacy service provider is notified of the variation. The notification to the non-legal mental health advocacy service provider must be made in accordance with the protocols issued by the Chief Officer. These protocols will be published on the Department of Health website once finalised.

Informing the person and others of a variation of a temporary treatment order

As soon as practicable after a temporary treatment order is varied, the authorised psychiatrist must ensure all reasonable steps are taken to:

• inform the person that the temporary treatment order has been varied
• explain the purpose and effect of the variation to the person
• where the setting is changed, give the person a copy of the varied order and a copy of the relevant statement of rights; and
• where the relevant designated mental health service is changed, the authorised psychiatrist must give any documents relevant to the assessment or treatment of the person to the new designated mental health service.

The authorised psychiatrist must also notify associated people of the variation, as soon as practicable after the variation is made. When the setting of the order is changed, the associated people should also be provided with a copy of the varied order and the relevant statement of rights. These associated people are the person’s:

• nominated support person, if they have one
• guardian, if they have one
• carer, if the authorised psychiatrist is satisfied that the variation will directly affect the carer and the care relationship
• a parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

Revocation or expiry of a temporary treatment order

Revocation of a temporary treatment order

An authorised psychiatrist must immediately revoke a temporary treatment order if the compulsory treatment criteria no longer apply to the person.

A person also has a right to apply, at any time, to the Mental Health Tribunal for revocation of a temporary treatment order.

The Mental Health Tribunal must conduct a hearing as soon as practicable. The Tribunal must either make a treatment order if the compulsory treatment criteria do apply to the person, or revoke the temporary treatment order if the criteria no longer apply to the person.

Expiry of a Temporary treatment order

A Temporary treatment order will expire:

• at the end of the 28 day period unless it is revoked earlier
• if the person is made subject to a treatment order
• if the person is made subject to a court secure treatment order or a secure treatment order; or
• if the person is detained in a designated mental health service under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Notifications that a temporary treatment order is revoked

If a temporary treatment order is revoked, the authorised psychiatrist must notify the Mental Health Tribunal, unless the Tribunal revoked the order. The authorised psychiatrist must ensure that reasonable steps are taken to inform the person that they are no longer subject to the temporary treatment order and explain the reason for the revocation and provide written notice of the revocation.

The authorised psychiatrist must also ensure that all reasonable steps are taken to notify the following people and provide them with a copy of the written notice of revocation:

• the person’s nominated support person, if they have one
• the person’s guardian, if they have one
• the person’s carer, if the authorised psychiatrist is satisfied that the revocation will directly affect the carer and the care relationship
• the person’s parent, if the person is under the age of 16 years.

The requirements for communicating under the Act must be followed.

The authorised psychiatrist must also ensure all reasonable steps are taken to notify the Secretary to the Department of Families, Fairness and Housing if the Secretary has parental responsibility for the person under a relevant child protection order.

If a temporary treatment order is revoked the authorised psychiatrist must ensure the non-legal mental health advocacy service provider is notified of the revocation.

The notification to the non-legal mental health advocacy service provider must be made in accordance with the protocols issues by the Chief Officer. These protocols will be published on the Department of Health website once finalised.

Effect of detention in custody on temporary treatment order

A temporary treatment order has no effect while the person who is subject to the order is detained in custody. A person cannot receive compulsory mental health treatment while detained in custody.

Detained in custody means a person is held in:

• a prison
• a remand centre, youth justice centre or youth residential centre
• a police gaol; or
• immigration detention.

A period of detention in custody does not ‘pause’ the duration of the order. The order will expire at the time it would otherwise have expired had the person not been detained in custody.

Transitional arrangements

A temporary treatment order made under the Mental Health Act 2014 will continue to operate, as though it were a temporary treatment order made under the Mental Health and Wellbeing Act 2022, for the period specified in the order.