Mental Health Act – Overview
Mental Health Act 2016The Mental Health Act 2016 s 3(1) states its main objectives are:
- to improve and maintain the health and wellbeing of people
- who have a mental illness who do not have the capacity to consent to be treated
- to enable people to be diverted from the criminal justice if found to have been of unsound mind at the time of committing an unlawful act or to be unfit or trial
- to protect the community if people diverted from the criminal justice system may be at risk of harming others.
Mental illness definitionA mental illness is legally defined under the Mental Health Act 2016 as “….a condition characterised by a clinically significant disturbance of thought, mood, perception or memory”.
The Act also identifies a person is not considered mentally ill because they:
- hold or refuse to hold a particular religious, cultural, philosophical or political belief or opinion
- are a member of a particular racial group
- have a particular economic or social status
- have a particular sexual preference or sexual orientation
- engage in sexual promiscuity
- engage in immoral or indecent behaviour
- take drugs or alcohol
- have an intellectual disability
- engage in antisocial behaviour or illegal behaviour
- are or have been involved in family conflict
- have previously been treated for a mental illness (voluntarily or involuntarily).
Only an authorised doctor can assess whether a person has a mental illness after another doctor or authorised medical practitioner recommends and assessment.
The Mental Health Act 2016 only affects a small number of people with mental illness (as it doesn’t generally provide for voluntary treatment for mental illness). It may apply if:
- there are concerns about a person’s mental health and it’s determined there is no less restrictive way to ensure the person receives appropriate treatment for their mental illness
- the person has been charged with a criminal offence and there are concerns about their mental state at the time of the offence or fitness for trial.
Assessment and TreatmentMost people diagnosed with a mental illness are treated voluntarily (eg they ask and consent to treatment), but if their illness stops them recognising they need help, and they may be at risk to themselves or others, they may need to be assessed for treatment without their agreement. This is called involuntary treatment. It's also important to understand patients' rights when being assessed for treatment.If a person has been charged with a criminal offence while diagnosed with a mental illness, they should get legal advice. Mental-health-and-wellbeing
Assessment and treatment of people living in communityThis section does not concern the criminal law. It is concerned with people who may need assessment or treatment for mental illness, and how that assessment and treatment may come about. The situation where a person is charged with a criminal offence, which may then lead to an assessment being made of their mental health and possible detention under the Mental Health Act 2016 (Qld) (Mental Health Act), is dealt with later.
Voluntary assessment and treatmentThe fact that a person has a mental illness does not necessarily justify either involuntary assessment or involuntary treatment. A person who is feeling mentally unwell can go to a doctor for assessment or treatment in just the same way that people who have physical injuries or illnesses seek treatment. There are many people in the community who are receiving treatment for mental illnesses on an entirely voluntary basis.
Involuntary assessment and treatmentSometimes, however, a person’s mental condition or behaviour means that it is necessary for other people to take steps to have the person assessed and, if necessary, given treatment.
Before a person can be given involuntary treatment for mental illness, they will need to be properly assessed. The purpose of involuntary assessment is to determine whether or not the person requires involuntary treatment.
Under the Mental Health Act there is effectively a three-stage process that may result in a person receiving involuntary treatment under the Act for mental illness:
- examination of a person to see if a recommendation for assessment should be made
- assessment of the person after a recommendation for assessment has been made
- the making of a treatment authority, authorising involuntary care and treatment
Clinical Process Flow Charts + Links to Criminal and Legal Processeshttps://www.health.qld.gov.au/clinical-practice/guidelines-procedures/clinical-staff/mental-health/act/forms
Examinations and Assessments - CPP Practice Guidelines
You may also like to view our page Mental Health Act Process Flowcharts
How an examination can come aboutInvoluntary assessment begins with an initial examination by a doctor or authorised mental health practitioner, which can come about in different ways.
Examination by consentA person may initially ask for, or consent to, an examination. The person might come in on their own or be brought in by a family member or friend. A doctor or authorised mental health practitioner can examine the person for the purpose of deciding whether to make a recommendation for assessment under the Mental Health Act (s 31). If they decide to make a recommendation for assessment and are concerned that the person will leave before that can be done, they can then detain the person for up to one hour to give them time to do the recommendation for assessment (s 36 Mental Health Act) and can use reasonable force for that purpose (s 37 Mental Health Act). If possible, they must also explain to the person what is happening (s 38 Mental Health Act).
Examination under an emergency examination authorityAmbulance or police officers can detain a person and bring them in to an authorised mental health service or a public hospital because they appear to be mentally unwell and a risk to themselves or others. When this happens, an ambulance officer or police officer must make an emergency examination authority. The person will then be initially examined for a doctor or health practitioner to decide their treatment and care needs (s 157F Public Health Act 2005 (Qld) (Public Health Act)). The person can be detained in a public sector health service for an examination period of up to six hours, which can if necessary be extended to up to 12 hours (s 157E Public Health Act). Reasonable force can be used to detain or to examine the person (ss 157N, 157O Public Health Act). These provisions of the Public Health Act link in with the Mental Health Act. A person brought in under an emergency examination authority may also be examined by a doctor or an authorised mental health practitioner for the purpose of deciding whether to make a recommendation for assessment under the Mental Health Act (s 31), and that Act will then apply if they decide to make a recommendation.
Examination under an examination authority issued by the Mental Health Review TribunalA person may be examined under an examination authority issued by the Mental Health Review Tribunal. The following people may apply to the tribunal for an examination authority (s 502 Mental Health Act):
- the administrator of an authorised mental health service
- a person authorised in writing by the administrator of an authorised mental health service
- a person who has received advice from a doctor or an authorised mental health service about clinical matters for the person who is the subject of the application.
The Mental Health Review Tribunal can issue an examination authority only if it is satisfied of certain things including that the person has, or may have, a mental illness and does not, or may not, have the capacity to consent to treatment (s 504 Mental Health Act).
Once an examination authority is made by the Mental Health Review Tribunal, it authorises a doctor or authorised mental health practitioner to do an initial examination in order to decide whether to make a recommendation for assessment (s 31 Mental Health Act). The doctor or authorised mental health practitioner has various powers for example to enter certain places to find the person and to examine the person without consent. The person can also be detained for the purpose of the examination for up to six hours at an authorised mental health service (which can be extended to up to 12 hours). If the person is found at another place, they can be detained there for up to an hour, or transported instead to an authorised mental health service (s 32 Mental Health Act). Reasonable force can be used (s 33 Mental Health Act), and police can be asked for help (s 34 Mental Health Act). If possible, the doctor or authorised mental health practitioner should explain the examination authority to the person and give them an opportunity to cooperate (s 35 Mental Health Act).
More information can be seen on our page Mental Health Review Tribunal (MHRT)
What happens at an examination?The examination of a person in any of the situations just described is the first stage in the process that may lead to involuntary care and treatment for mental illness. A doctor or authorised mental health practitioner may examine the person to decide whether to make a recommendation for assessment for the person (s 31 Mental Health Act).
Recommendations for AssessmentAfter examining the person, the doctor or authorised mental health practitioner may make a recommendation for assessment only if satisfied that the treatment criteria (s 12 Mental Health Act) may apply, and that there appears to be no less restrictive ways for the person to receive treatment and care for their mental illness (s 39 Mental Health Act). The wording here is deliberate—a final decision is not being made).
The recommendation for assessment must be made within seven days after the examination (s 39(2) Mental Health Act).
If the doctor examines the person and decides to make a recommendation for assessment, but considers that there is a risk the person will leave before the recommendation for assessment can be made, the doctor may detain the person for the period reasonably necessary, but no longer than one hour, to make the recommendation for assessment in an authorised mental health service or public sector health service facility (which would include the emergency department of a public hospital, but not a private doctor’s surgery).
A recommendation for assessment authorises the detention of the person in the authorised mental health service or public sector health service facility for up to 24 hours so that the assessment can be carried out. However, the doctor who is doing the assessment may extend that period to up to 72 hours if necessary to complete the assessment (s 45(2) Mental Health Act).
Once a recommendation for assessment has been made, the next step is the actual assessment. The purpose of the assessment is for an authorised doctor to decide whether to make a treatment authority for the person, which is effectively the end of the examination and assessment process. If a treatment authority is made, it authorises involuntary care and treatment.
Treatment authoritiesIf, on making the assessment of a person, an authorised doctor is satisfied that all of the treatment criteria (listed above) apply, and that there is no less restrictive way for the person to receive treatment and care for their mental illness, the authorised doctor may make a treatment authority (ss 48, 49 Mental Health Act). The authorised doctor must decide whether the category of the treatment authority is to be (a) inpatient or (b) community. There are criteria listed for making this decision (s 51 Mental Health Act).
If the category of treatment authority is ‘community’, the person will be able to receive care and treatment while living in the community. If the authorised doctor decides to make the category inpatient, the doctor must then decide whether to approve limited community treatment, and the nature of the community treatment (s 52 Mental Health Act). Limited community treatment is, in effect, leave from hospital. It can range from escorted leave in the hospital grounds up to living full time in the community with conditions.
Under the treatment authority, the person can be required to have involuntary treatment and care.
If the authorised doctor who makes the treatment authority is not a psychiatrist, the treatment authority has to be reviewed by a psychiatrist within three days, or in some cases seven days (ss 56, 57 Mental Health Act).
More information can be seen on our page Treatment and Assessment Orders
Patients Leaving MH Services Without Permissionhttps://www.qai.org.au/absent-without-permission/
Interstate TransfersFor information about transfers between AHMS and between states, see: https://www.health.qld.gov.au/__data/assets/pdf_file/0025/574027/pg_transfers_transport.pdf
Complaints and RightsIf the person is concerned about their mental health treatment, they can make a complaint to the Hospital and Health Service.
Hospital and Health Service
- Metro North
- Metro South
- Gold Coast
- West Moreton
- South West Qld
- Wide Bay
- North West Qld
- Torres and Cape
- Cairns and Hinterland
- Sunshine Coast
More information can be seen on our page Mental Health – Complaints
Queensland Human Rights CommissionIf the person is concerned that there has been a breach of their human rights, they can contact the Queensland Human Rights Commission and lodge a complaint after complaining to their health service. For information about accessing this visit qhrc.qld.gov.au/complaints/making-a-complaint
Protected Human Rights Under Human Rights Act, QldThe Act protects 23 fundamental human rights drawn from international human rights law:
- Recognition and equality before the law
- Right to life
- Protection from torture and cruel, inhuman or degrading treatment
- Freedom from forced work
- Freedom of movement
- Freedom of thought, conscience, religion and belief
- Freedom of expression
- Peaceful assembly and freedom of association
- Taking part in public life
- Property rights
- Privacy and reputation
- Protection of families and children
- Cultural rights—generally
- Cultural rights—Aboriginal peoples and Torres Strait Islander peoples
- Right to liberty and security of person
- Humane treatment when deprived of liberty
- Fair hearing
- Rights in criminal proceedings
- Children in the criminal process
- Right not to be tried or punished more than once
- Retrospective criminal laws
- Right to education
- Right to health services.
Follow this link to make an online complaint: qhrc.qld.gov.au/complaints/make-a-complaint
More information can be seen on our page Mental Health Act - Rights, and Independent Patient Rights Advisors