Treatment orders

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

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

To receive this document in another format email mhwa@health.vic.gov.au.

Treatment order flow chart

pdf 2.88 MB | Updated: 29 August 2023

Purpose of a treatment order

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

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

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

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

How a treatment order is made

The Mental Health Tribunal makes treatment orders. An authorised psychiatrist cannot make a treatment order for a person.

When a person is on a temporary treatment order

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

The hearing will be automatically listed and does not require an application by the authorised psychiatrist.

When a person is subject to an existing treatment order

An authorised psychiatrist will need to make an application to the Mental Health Tribunal for another treatment order to be made for a patient who is subject to an existing treatment order if the authorised psychiatrist considers the order should be extended.

Examination

An authorised psychiatrist may apply to the Mental Health Tribunal for another treatment order if the authorised psychiatrist:

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

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 that they will be examined and take reasonable steps to explain the purpose of the examination. If the patient requests a copy of the current treatment order, the authorised psychiatrist must ensure that the patient is given a copy of the order. There are requirements that must be followed when communicating under the Act.

Determining if the compulsory treatment criteria apply

When determining whether to apply for another treatment order for a person who is subject to an existing treatment order 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 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; and
• 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, please see Terms and definitions.

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

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.

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

Making an application to the Mental Health Tribunal

An application to the Mental Health Tribunal to make a treatment order for a person must be made at least 10 business days before the person’s current treatment order will expire.

The principal registrar of the Tribunal may accept an application made after this time (but before the order expires) if they are satisfied that it is reasonable in the circumstances to do so.

The Application must specify the date and time the authorised psychiatrist most recently examined the person.

The Mental Health Tribunal most conduct a hearing if a valid application is received.

The MHWA 113 form can be used when making an application to the Tribunal.

Mental Health Tribunal may make a treatment order

The Mental Health Tribunal must determine if the compulsory treatment criteria apply to a person. In determining that the criteria apply the Mental Health Tribunal must be satisfied that –

• if the treatment order is made the person will receive treatment. This means that services must be available to enable the person’s treatment; and
• there is no less restrictive means reasonably available to enable the person to receive the immediate treatment, including whether the person can receive treatment on a voluntary basis.

In deciding whether or not a treatment order should be made the Mental Health Tribunal 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 Mental Health Tribunal is satisfied that making a 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; and
• 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.

Setting of treatment order – community or inpatient

The Mental Health Tribunal must determine whether the treatment order is to be:

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

The Mental Health Tribunal may only make an inpatient treatment order if satisfied that the person cannot be treated in the community.

Duration of a treatment order

The Mental Health Tribunal must determine the duration of a treatment order.

The duration cannot be longer than:

• 6 months, if the person is 18 years old or older; and
• 3 months if the person is under 18 years of age.

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

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

Contents of treatment order

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

• the name of the person to be treated under the order
• the date the order was made
• whether the order is a community treatment order or an impatient treatment order
• the designated mental health service which is to be responsible for the person’s treatment
• the nature and effect of a treatment order
• the duration of the order.

Once a treatment order is made

If the order is an inpatient treatment order

If the person is not already at a designated mental health service and an inpatient treatment order is made, an authorised psychiatrist from the responsible designated mental health service 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 treatment order has been made

As soon as practicable after the order is made, an authorised psychiatrist from the responsible designated mental health service must ensure all reasonable steps are taken to:

• inform the person that they are subject to a 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 treatment order and a copy of the relevant statement of rights.

The requirements for communicating under the Act must be followed.

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

As soon as practicable after the order is made, an authorised psychiatrist from the responsible designated mental health service 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 issues by the Chief Officer. These protocols will be published on the Department of Health website when finalised.

Others to be informed that a treatment order has been made

As soon as practicable after the order is made, an authorised psychiatrist from the responsible designated mental health service 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 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;

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 treatment order

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

Compulsory mental health treatment can be given to a person on a 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 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 Treatment order who does not give informed consent to the proposed treatment or does not have capacity to give informed consent.

Variation of a treatment order

Variation of setting - community or inpatient

An authorised psychiatrist may:

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

A community treatment order can only be varied to an inpatient 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 treatment order is varied to an inpatient 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.

Mental Health Tribunal hearing - treatment order varied from community to inpatient

The Mental Health Tribunal must automatically conduct a hearing within 28 days (beginning on the day the order was varied) of the variation of a community treatment order to an inpatient treatment order to determine whether to make a treatment order or revoke the treatment order.

A hearing does not need to be held if the authorised psychiatrist varies the inpatient treatment order back to community treatment order before the hearing.

This hearing will be automatically listed and does not require an application to be made by the authorised psychiatrist.

The Mental Health Tribunal will:

• confirm the inpatient treatment order if satisfied the compulsory treatment criteria still apply to the person and the person cannot be treated in the community; or
• vary the order to a community order if satisfied that the compulsory treatment criteria still apply to the person and the person can be treated in the community; or
• revoke the treatment order if not satisfied that the treatment criteria still apply to the person.

Variation of responsible designated mental health service

An authorised psychiatrist may vary a 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 to for the person to be treated.

If an inpatient 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 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 treatment order

Before varying a 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 and
  • views or preferences expressed by the person’s nominated support person
• 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.

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

Information requirements for varied 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 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 issues by the Chief Officer. These protocols will be published on the Department of Health website.

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

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

• inform the person that the treatment order has been varied;
• explain the purpose and effect of the variation to the person; and
• 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; and
• 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 Treatment order

Revocation of a treatment order

An authorised psychiatrist must immediately revoke a 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 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 treatment order if the criteria do not apply to the person.

Expiry of a treatment order

A treatment order will end:

• at the end of the specified duration unless it is revoked earlier
• if the person is made subject to a new treatment order
• if the person is made subject to a court secure treatment order or a secure treatment order
• 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 treatment order is revoked

• If a treatment order is revoked, the authorised psychiatrist must notify the Mental Health Tribunal (unless the Tribunal revoked the order) and ensure that reasonable steps are taken to inform the person that they are no longer subject to the 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 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 treatment order

A treatment order has no effect while the person subject to the treatment 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
• 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 treatment order made under the Mental Health Act 2014 will continue to operate, as though it were a Treatment order made under the Mental Health and Wellbeing Act 2022, for the period specified in the order.

However, in circumstances where a community treatment order is varied to an inpatient treatment order and the order has a period of longer than 6 months, the Mental Health Tribunal will vary the period as the Tribunal considers appropriate so that it is not more than 6 months.