Mental Health Orders

What are Mental Health Orders?

Contributed by Dr Stephen Tang, Lecturer, ANU College of Law and current to April 2018.

A Mental Health Order is a legally binding order made by ACAT under the Act requiring a person to receive treatment, care and support, together with certain restrictions to ensure that this can occur safely and effectively. What this treatment, care and support looks like, and what restrictions are imposed, will depend on the person, the clinical opinion of the treating team or care team, and the terms of the order.

This section will discuss the two main types of Mental Health Orders under the Act: This section will also discuss Restriction Orders (ROs), which are an additional type of mental health order which can be made together with a PTO or CCO.

Forensic mental health orders (FMHOs) are a separate category of mental health order under the Act (see Chapter 7 of the Act). There are two types of FMHO: Forensic Psychiatric Treatment Orders (FPTOs) and Forensic Community Care Orders (FCCOs). These orders are similar to PTOs and CCOs, but can only be made by ACAT in relation to people who are involved with the criminal justice system. FMHOs contain some additional restrictions and measures which are intended to further protect the public while also ensuring the effective treatment, care and support of the person. A future update to this chapter will discuss these orders. At the time of writing, no FMHOs have yet been granted by ACAT.

Finally, the Act also allows ACAT to make Electroconvulsive Therapy (ECT) Orders and Emergency ECT Orders (see Chapter 9 of the Act). These orders authorise the administration of ECT where person has not or cannot consent, and will also be discussed in a subsequent update.

Psychiatric Treatment Orders

A Psychiatric Treatment Order (PTO) authorises involuntary treatment, care and support for a person with mental illness (s 59). A PTO allows for involuntary treatment, care and support in hospital or in the community (that is, where a person is living at home but receives treatment or therapy at an ACT Health community health centre or through arranged home visits). A PTO can last for up to 6 months, but can be reviewed, revoked or renewed before it expires (s 76).

Around 800 to 900 PTOs are granted by ACAT each year for people in the ACT (Numbers are published in the Chief Psychiatrist’s Annual Report, which is annexed to the ACT Health Annual Report. In the 2016-17 Financial Year, 627 PTOs were made by ACAT, which was significantly lower than the 890-921 PTOs made by ACAT in previous years). Many of these are PTOs which have been reviewed and remade (renewed) by ACAT, rather people being subject to a PTO for the first time. As such, the total number of people subject to a PTO at any time would be considerably less than this number. Most people on PTOs receive treatment, care and support in the community, rather than as hospital inpatients.

Because a PTO can allow for restrictive practices and involuntary treatment for someone who may not wish to be treated, there is a thorough and somewhat complex application and consultation process before ACAT ultimately makes the decision.

When can someone be subject to a PTO?

The requirements that need to be met before ACAT can make a PTO are set out in section 58(2) of the Act. It is up to the treating team to provide evidence for each criterion below. The person who is the subject of a PTO application can challenge this evidence or present evidence to the contrary at the hearing.

A PTO can only be granted by ACAT if all of the following conditions are met at the time when it makes its decision:
  • The person has a mental illness.
    The Act applies a particular legal definition of ‘mental illness’ in section 10 of the Act, rather than a clinical definition of mental illness. The ACAT is less interested in whether a person has a clinical diagnosis of a mental illness (such as schizophrenia) than in whether there is evidence that the section 10 requirements are met.

    The treating team will need to show that the section 10 symptoms (e.g. hallucinations or delusions) are present at the time when the person was recently assessed, and that they continue to be present when the PTO hearing is held.

  • The person refuses to receive the treatment, care or support proposed by the treating team voluntarily, because either:
    the person does not have decision-making capacity to consent to the treatment, care or support, and the person refuses to receive that treatment, care or support; or
    the person has decision-making capacity to consent to the treatment, care or support, but refuses to consent.
In the decision of ED (In the matter of ED (Mental Health) [2017] ACAT 84, [49]), the ACAT noted that ‘refusal’ means the refusal of any part of the proposed treatment, care and support. This includes any treatment that is necessary for problems which have arisen as a consequence of the mental illness or associated pain and suffering associated with the mental illness.
 
As with other criteria, refusal of treatment, care or support must be assessed at the time of the PTO application. The treating team must first attempt to offer the proposed treatment on a voluntary basis or to seek the person’s consent to treatment. The person must also be refusing the treatment at the time of the PTO hearing.
 
ACAT takes a practical approach to considering whether the person is refusing treatment, care or support. The Tribunal may conclude that the person is refusing based on a pattern of recent actions, even if the person does not say that they will refuse the treatment at the time of the hearing.
  • ACAT believes on reasonable grounds that, because of the mental illness, the person—
    is doing, or is likely to do, serious harm to themself or someone else; or
    is suffering, or is likely to suffer, serious mental or physical deterioration, which is of such a serious nature that it outweighs the person's right to refuse to consent.
The inclusion of this requirement means that just because the person has a mental illness and refuses treatment is not sufficient for a PTO to be granted. There must be evidence that there is a significant risk to themselves or other people as a result of the mental illness and the refusal of treatment which warrants ACAT intervening and limiting the freedom and rights of the person.
  • ACAT is satisfied that psychiatric treatment, care or support is likely to:
    reduce the harm or deterioration, or the likelihood of the harm or deterioration, or
    result in an improvement in the person's psychiatric condition.
Here, the treating team will need to demonstrate that the treatment proposed by the treating team is generally effective, based on good evidence-based clinical practice, and is likely to be beneficial to the person.
  • If an application has been made for a forensic mental health order—the ACAT is satisfied that a psychiatric treatment order should be made instead.
    As noted above, ACAT has the discretion to grant a PTO even if the application was made for a Forensic PTO (FPTO). ACAT will do this if it believes that a PTO is sufficient and a less restrictive option.

  • The ACAT is satisfied that the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.
    This final criterion allows the person to suggest there there are viable alternatives to the making of a PTO. The PTO must be the least restrictive option available, bearing in mind that the legal power to require treatment and to detain a person may be necessary and may not be possible under other proposals.

If all the criteria in section 58(2) are not met, a PTO cannot be granted by ACAT. This is particularly relevant where the person is not refusing the proposed treatment, care or support, but does not have the decision-making capacity to consent to it. Alternatives to a PTO are discussed in Alternatives to Mental Health Orders.

What is the process of making a PTO?

There is a four-step process to ACAT making a PTO in relation to a person:
  1. The PTO process is initiated by one of the following:
    a. The Chief Psychiatrist (or delegate) makes an application for a PTO;
    b. ACAT receives a referral from the Magistrate Court or Supreme Court giving it the authority to make a PTO; or
    c. ACAT receives the results of an assessment of the person conducted under an Assessment Order.
  2. ACAT considers the assessment of the person and consults with people who may be involved in the person’s life and mental health treatment, care and support.
  3. ACAT holds a hearing to decide whether the PTO should be granted.
  4. If the PTO is granted, the treating team (on behalf of the Chief Psychiatrist) issues a Treatment Determination within 5 days of the PTO being granted.
Each of these steps will be discussed in detail.

Step 1: Application, Referral or Assessment Order

Application by Chief Psychiatrist (or delegate)

The PTO process is most commonly started by an application made by a consultant psychiatrist or psychiatric registrar in the person’s ACT Health treating team (ss 51(1) and (2) and s 58(1)(b). Psychiatric registrars are nominated by the Chief Psychiatrist under s 50 as people who can make a PTO application). This typically follows a person being detained and treated on an ED11, or for someone receiving voluntary treatment and clinical management from ACT Health in the community who now requires a PTO to ensure the continuation or intiatiation of appropriate treatment, care and support.

The PTO application is made on ACAT’s Application Form for Psychiatric Treatment Order, Community Care Order and/or Restriction Order .The application form will be completed by the doctor, who will provide the information required to address the criteria in section 58 described above (s 51(3)(a), such as the evidence that the person has a mental illness and would benefit from the proposed treatment, care and support. Applications are made under the authority of the Chief Psychiatrist, who is formally responsible for the treatment, care and support of people subject to a PTO.

The application must be accompanied by a treatment plan, which will contain a general outline of the kinds of treatment, care or support proposed for the person (s 51(3)(b), for example, whether medication will be used for the treatment of psychosis. An information sheet will also be included with the application, containing the person’s details, the names and contact details for important people (e.g. the guardian or Nominated Person) and indicating whether the person has an AA or ACD.

If anything to do with the PTO application process is likely to substantially increase the risk to the person’s health and safety or the risk of serious harm to others, this must be disclosed by the psychiatrist to ACAT (s 52).

ACAT will provide a copy of the PTO application to the Public Advocate, and also to Child and Youth Protection Services (CYPS), if the person is a child (s 187).
Following an Assessment Order

If a person has already had an assessment carried out under an Assessment Order, ACAT can directly consider whether a PTO should be granted without needing a separate application (s 58(1)(a)).
Referral from the Courts

ACAT can also consider making a PTO if the person has been referred to ACAT by the ACT Supreme Court or ACT Magistrates Court if they are a defendant or accused in a criminal matter where they have been found not guilty by reason of mental impairment or if they are found unfit to plead (Section 58(1)(d) and Chapter 10). In this case, ACAT has the authority to make a PTO to ensure that the person receives appropriate treatment, care and support.

Step 2: ACAT’s Consideration of Assessment and Consultation

Under section 53, before ACAT makes a PTO in relation to a person, it must consider an assessment of the person conducted under an AO, or another mental health assessment which the ACAT considers appropriate. This may be an assessment of the person conducted during the ED11, or an assessment conducted by the ACT Health community mental health team.

As far as practicable, ACAT must also consult with a range of people before making the PTO (s 54). These people are:
  • If the person is a child:
    ○ The parents of the person, or each person who is legally responsible for the child; and
    Child and Youth Protection Services (CYPS);
  • The person’s guardian (if one has been appointed);
  • The person’s attorney (if they have appointed a person with an enduring power of attorney);
  • The person’s Nominated Person (if one has been appointed);
  • The person’s health attorney (if one is involved in the treatment, care or support of the person);
  • The Chief Psychiatrist (or delegate);
  • ACT Corrective Services (if the person is a detainee, released on parole or licence, or a person serving a community-based sentence, or is on bail with a supervision condition);
  • Child and Youth Protection Services (CYPS) (if the person is a young detainee or a young offender serving a community-based sentence);
  • The person who applied for the Assessment Order (if the PTO hearing arose out of the results of an Assessment Order).
ACAT must also tell the person’s carer, if they have one, in writing that a hearing will be held in relation to whether or not to make the PTO. The carer will be told that they can provide a written statement to be considered by the Tribunal, and that they can ask ACAT for permission to attend the hearing.

Step 3: Hearing and Decision

The ACAT Hearing

ACAT must hold a hearing in relation to whether or not a a PTO should be granted (s 55). Under section 188, ACAT must give at least 3 days’ written notice of the hearing to the following people:
  • The person who is the subject of the PTO application;
  • The person’s representative (e.g. their lawyer), if they have one;
  • If the person is a child:
    ○ The parents, or each person with legal responsibility for the child; and
    ○ Child and Youth Protection Services (CYPS);
  • The person’s guardian (if one has been appointed);
  • The person’s attorney (if they have appointed a person with an enduring power of attorney)
  • The police officer who applied for the Assessment Order which led to the PTO hearing, if applicable;
  • The person who applied for the PTO (if an application was made), which is usually a psychiatrist in the treating team;
  • The Chief Psychiatrist;
  • The Public Advocate;
  • The Care Coordinator; and
  • Anyone else that the ACAT believes it should inform.
The Chief Psychiatrist (or delegate) must inform ACAT if she/he has reasonable grounds to believe that notifying others is likely to substantially increase the risk to the subject person's health or safety, or the risk of serious harm to others. If a presidential member of ACAT agrees, then the notification process can be limited or waived (s 188(2)). The Public Advocate, however, will be informed of this objection to notification.

There will usually be three members of the ACAT at the PTO hearing (section 186 requires the Tribunal to be composed of at least a presidential and a non-presidential member. In practice, PTO hearings are heard before 3 members). The Presidential Member, who is an experienced lawyer who has been appointed to the ACAT, will preside over the hearing. There will also be a medically-qualified member of the tribunal (usually a retired psychiatrist), and a community member who has been appointed to the tribunal based on their relevant experience or interests.

ACAT holds weekly PTO hearings at inpatient mental health facilities across the ACT (at the Adult Mental Health Unit, the Dhulwa Mental Health Unit and at Calvary Hospital) for people who are already inpatients. For PTO hearings in relation to people in the community, hearings are held at ACAT, located at Level 4, 1 Moore Street (the ACT Health building) in Civic. PTO hearings must be in held in private (s 194), meaning that only people who have been invited by ACAT to attend may be in the room.

Hearings are relatively informal and are kept as non-adversarial as possible by the Tribunal. The representative of the treating team will present a summary of the reasons why a PTO is being sought, and answer questions by the Tribunal members and others present. The person will have an opportunity to respond to the evidence, provide their own information or ask relevant questions. The person may be represented by a lawyer (such as a duty lawyer from Legal Aid ACT) but does not need to be legally represented.

The person may also choose not to attend the hearing, or may be too unwell to attend. In these cases, the hearing will proceed unless there is a good reason to postpone it. The rules and processes in the Act and of the ACAT (including consultations with the person and others prior to the hearing) help ensure that the process and outcome is fair and lawful.

A representative from the Office of the Public Advocate will attend the hearing. Although the Public Advocate is not there as the legal representative of the person who is the subject of the PTO application, they will observe the hearing, ask questions of the treating team, provide input to the Tribunal. The Public Advocate’s role is to ensure that the PTO decision-making process is fair and consistent with the principles and requirements of the Act.
Decision and Order

Under section 56, when deciding whether or not to make the PTO, ACAT must take into account the following things:
  • the treatment plan which accompanied the PTO application (if the PTO process was started through an application being made to ACAT);
  • whether the person consents, refuses to consent, or has the decision-making capacity to consent, to the proposed treatment, care or support;
  • the views and wishes of the person, to the extent that ACAT can find this out (including through the person’s Advance Agreement and Advance Consent Direction);
  • the views of the person’s carer(s), if these views have been made known to the ACAT (e.g if a carer has provided information in writing to ACAT or attended the ACAT hearing);
  • the views of the people who are attending the hearing;
  • the views of the people consulted by ACAT, as listed above (under section 54);
  • that any restrictions placed on the person should be the minimum necessary for the safe and effective care of the person;
  • any alternative treatment, care or support available, including:
    ○ the purpose of the treatment, care or support; and
    ○ the benefits likely to be derived by the person from the treatment, care or support; and
    ○ the distress, discomfort, risks, side effects or other disadvantages associated with the treatment, care or support;
  • any relevant medical history of the person;
  • for a person referred to ACAT after being found by a court to be not guilty by reason of mental impairment or unfit to plead:
    ○ the nature and circumstances of the alleged offence or the offence in relation to which the person is charged; and
    ○ the nature and extent of the person's mental illness and the effect it is likely to have on the person's behaviour in the future; and
    ○ whether, if the person is not detained, the person's health or safety is, or is likely to be, substantially at risk, or the person is likely to do serious harm to others.
ACAT must make the decision in accordance with the principles of the Act, which are found in section 6.

ACAT will almost always reach a decision whether or not to grant the PTO at the end of the hearing. The decision will be announced orally (ex tempore) by the Tribunal, and if a PTO is granted, the written order will be issued shortly afterwards. Detailed written reasons for granting, or not granting, the PTO are not usually given by the Tribunal.

The written order issued by ACAT will formally set out the requirements and conditions of the PTO. Under section 59, the Order may state one or more of the following:
  • The person is to be admitted to an approved mental health facility;
  • The person receive psychiatric treatment (other than ECT or psychiatric surgery, for which other orders or consents are necessary);
  • The person undertake a counselling, training, therapeutic or rehabilitation program;
  • Limits may be imposed on communication between the person and other people.
The PTO only authorises the overall direction of the treatment, care and support to be provided. ACAT is prohibited from ordering a particular treatment (such as that a particular medication to be given), as this is a clinical decision based on the professional experience and judgment of the treating team (s 57). ACAT’s role is to consider whether the legal requirements in the Act are met so that it can authorise the overall package of treatment, care and support to be provided under the PTO.

As such, the PTO will also specify that the person must comply with the treatment determination made by the treating team on behalf of the Chief Psychiatrist (s 59(2)(a)).

If a PTO is made, a copy of the written order must be given to the person, the treating team (on behalf of the Chief Psychiatrist) and people who have been previously consulted or who are currently involved in the person’s treatment, care or support (s 195).

If an application is made for a Restriction Order (RO), ACAT will consider the RO application at same time. The process for how ROs are made is described here .

Step 4: Treatment Determination

If ACAT grants a PTO, the delegate of the Chief Psychiatrist who is part of the treating team becomes responsible for the treatment, care and support of the person (s 62(1) and s 200). The treating team (on behalf of the Chief Psychiatrist) is then required within 5 working days of the PTO being made to issue a written determination about the treatment, care and support to be provided.

The treatment determination is made on the ACT Health Treatment Plan and Location Determination (TPLD) form. It will set out in more detail the treatment, care and support to be provided and how it is to be take place, which must be within the limits imposed by ACAT in the PTO. This determination typically mirrors the treatment plan which was submitted with the PTO application. In accordance with s 62(2), the determination will specify:
  • whether the person is required to be admitted to an approved mental health facility to receive treatment, care or support, and, if so, whether the person can be given leave from the facility;
  • if the person is to receive treatment, care or support in the community — the times when and the place where the person is required to attend; and
  • what kind of psychiatric treatment to be given to the person.
The treating team must not propose any treatment that is likely to cause undue stress or deprivation to the person, compared with the likely benefit of the treatment (s 62(4)).

Before making the determination, the treating team must take all reasonable steps to consult with a range of people about the proposed treatment, care and support and take into account their views (s 62(5)). These people are:
  • The person who is the subject of the PTO;
  • The parents, or each person with parental responsibility for the child (if the person is a child);
  • The person’s guardian (if one has been appointed);
  • The person’s attorney (if they have appointed a person with an enduring power of attorney);
  • The person’s carer (if they have one);
  • The person’s Nominated Person (if they have appointed one);
  • The person’s Health Attorney (if one is involved in the person’s treatment, care or support);
  • ACT Corrective Services (if the person is a detainee, released on parole or licence, or a person serving a community-based sentence, or is on bail with a supervision condition); and
  • Child and Youth Protection Services (CYPS) (if the person is a young detainee or a young offender serving a community-based sentence).
The TPLD form will record the person’s views in relation to the proposed treatment, care and support, and if the person was not consulted, the reasons why the consultation did not occur

In practice, this consultation process will occur or begin to occur in advance of the PTO hearing. This is done so that the determination can be finalised as soon as possible after the PTO is granted. The TPLD form may nonetheless be updated within the five working day period before it is finalised, as the treatment plan is further developed or as new information becomes available.

A copy of the determination must be given by the treating team to the person subject to the PTO, the ACAT, the Public Advocate, and some of the people previously consulted (s 62(7)).

What can happen under a PTO?

Treatment, care and support

Once the treatment determination has been made, the person can receive treatment, care or support for the mental illness involuntarily. This means that the person is not required to consent to the treatment, and that the treatment can be given even if the person is resisting it. However, applying principles of the Act means that the person should always be asked if they consent to each specific treatment action or decision, should be actively involved in treatment planning, and that their views and interests should always be taken into account.

A PTO by itself cannot authorise ECT or psychosurgery. These forms of mental health treatment, and the consent and authorisation process, will be discussed in a later update to this chapter.

Medication for treatment of mental illness

The treatment provided under a PTO typically involves requiring the person to take medication (also known as pharmacotherapy or psychopharmacotherapy) to treat their mental illness or to reduce the distress and impairment it is causing. Depending on the treatment plan and determination made under the PTO, the person can be required to receive the medication in an inpatient facility or in a community setting (such as attending a community health centre or through home visits by specialised clinicians).

Common medications include antipsychotics (medications which treat the symptoms of psychosis), antidepressants (medications which address the symptoms of depression), anxiolytic medications (which reduce the symptoms and experience of anxiety, and may help with insomnia and restlessness) and mood stabilisers (which help control fluctuations in mood, especially symptoms of mania). Such medication can be given either orally (in the form of tablets, lozenges or wafers) or through injections (including long-acting ‘depot’ injections which may be given once every few weeks).

If the person is receiving treatment in an approved mental health facility, then the treating team can use reasonable force to ensure that the person receives their prescribed medication (s 65(4)). In practice, this may mean that the person is temporarily held down while a doctor or nurse administers an injection of the medication. As this can be a traumatic experience, the forcible giving of medication is a last resort where the person is not agreeing to take medication which is necessary for their treatment. Any forcible giving of medication must be clearly documented by the treating team (s 65(5)). The Public Advocate will also be informed by the treating team whenever a person is forcibly administered medication.

Any concerns about the effects or side-effects of medication should be discussed with the treating team. Experiences with certain medications can also be used to inform the creation of an Advance Consent Direction (ACD) when the person hasdecision-making capacity to do so. The ACD can specify which medications the person consents to receiving, or does not consent to receiving, when they are unwell. This can mean that a PTO is not necessary in the future if the treatment can be provided under the ACD when the person is unwell. It can also mean that the person is not given medication which they do not wish to receive, unless ACAT agrees that there is a very good clinical reason for it to be administered.

Other medical treatment

Other medical treatment may also be used to treat the symptoms of the mental illness or the consequences of the mental illness. For example, if the person’s mental illness means that person is unable to attending to other physical health conditions (e.g. diabetes or a heart condition), the necessary treatment can be provided as part of the PTO (see In the matter of PW (Guardianship and Management of Property) [2017] ACAT 8). Similarly, the PTO allows for things to be done if they are necessary for safe and effective treatment. For example, if it is necessary for a person to undergo blood tests so that the medication can be administered safely, this can be done as part of the PTO.

All mental health treatment, including the use of medication, can only be used for a therapeutic or diagnostic purpose for the benefit of the person, and can never be used as punishment or for the benefit of someone other than the person (s 6(j)(vi)).

Psychological treatment and allied health interventions

A PTO can also require the person to participate in psychological therapy, such as attending individual sessions with a psychologist, or attending a group therapy programs either while in hospital or in the community (s 59(1)(b)(ii)). Psychological therapies and other allied health interventions (including support from a occupational therapist, social worker or other mental health professional) are an important part of recovery planning. They can also be useful in helping the person to understand and make sense of their experience of mental illness and the psychiatric treatment they are receiving.

Explaining the treatment, care or support

The treating team must explain the treatment, care or support to be provided to the person under the PTO before it can commence. The treating team must explain the nature and effects (including side effects) of the treatment, care of support, and do so in a way that they are most likely to understand (s 63). This may involve providing the information at a time when the person is most likely to understand the information (e.g. not when person is tired or experiencing the side effects of medication), or in accordance with the person’s preferences as expressed in their Advance Agreement. It may also use using an interpreter, engaging with decision supporters or carers, or the use of assistive technologies.

Inpatient admission or detention

The PTO can require the person to be admitted to an approved mental health facility for treatment (s 59(1)(a)). This means that the person is required to stay at the facility as an inpatient. In addition, the treatment determination can required the person to be detained at the facility (s 65(2)(a)). If a person is detained at the facility, they are not free to leave or discharge themselves, unless they are granted leave or if the PTO is revoked.

If inpatient admission or detention is no longer necessary, the treating team can discharge the person. They are then free to go home, but may be required to continue to receive treatment, care and support in the community as part of the PTO. This is done by varying the person’s treatment determination. Similarly, if a person is receiving treatment, care and support in the community but the treating team believe that they need to be admitted to hospital, the person can be admitted by updating the treatment determination. A new order by ACAT is not required to change the place where the person is receiving treatment, care or support.

Restrictive Practices and Restraint

Detention at an approved mental health facility can also mean that reasonable restrictions are placed on the person’s freedoms to prevent the person from causing harm to themselves or someone else. For example, this may involve the person being required to stay in the High Dependency Unit (HDU) of the Adult Mental Health Unit (AMHU) at Canberra Hospital, or that visitors (other than the person’s lawyer, the Public Advocate and other officials with a right to visit) are not allowed for a period of time (s 74).

The person may also be physically restrained (i.e, held securely for a short period of time) if this is reasonable and necessary to prevent harm to the person themselves or someone else (s 65(2)(b)). Under ACT Health policy, physical restraint is only used if other strategies to engage with the person and to reduce their distress or aggression are not successful. Physical restraint is carried out only by clinicians, wardspeople or security officers who are trained in techniques which minimise the risk of injury.

If a person has been restrained, they must be examined by a doctor afterwards and will be given an opportunity to debrief about what happened and to find out what might be helpful to prevent something like this happening again. The Public Advocate must also be informed by the treating team.

Seclusion

In addition, if the person is detained at an approved mental health facility under the Chief Psychiatrist’s determination, they may be subject to seclusion for up to 4 hours at a time (s 65(2)(c)). This can only occur if the treating psychiatrist believes that seclusion is the only way in the circumstances to prevent the person from causing harm to themselves or someone else. Seclusion can never be used as a form of punishment.

Seclusion is not defined in the Act, but is understood across Australia as ‘the confinement of a patient at any time of the day or night alone in a room or area from which free exit is prevented’ (Australian Institute of Health and Welfare (AIHW), Mental Health Services in Australia, Seclusion). In practice, this means that the person is placed into a seclusion room by themselves within the approved mental health facility with the door locked. Nurses, other clinicians and security officers will closely monitor the person to ensure that they are safe during this time.

Seclusion can only be authorised by a consultant psychiatrist (as a delegate of the Chief Psychiatrist) for up to 4 hours at a time, with shorter periods to be used wherever possible. The treating team must ensure that the person is examined by a doctor at least once in each 4-hour period for which the person is in seclusion (s 65(3)).

As seclusion can be a highly traumatic event, ACT Health policy requires that the person be provided with a supportive debriefing session afterwards and for a post-seclusion review to be conducted with the treating team to minimise the need for seclusion in the future. The Public Advocate must be informed of any instance of seclusion, and clear records must be kept about why seclusion was used, for how long. Seclusion is used very infrequently, and the ACT has the lowest rate of seclusion of all Australian states and territories (AIHW, Mental Health Services in Australia, Seclusion).

Rights during detention

The person must be given reasonable opportunities to contact or be visited by their lawyer (or contact Legal Aid ACT for legal advice) or the Public Advocate (s 75). The person must also be given the opportunity to write and receive letters or phone calls to others (s 17), unless a limit has been imposed on the person’s communications (s 74). The person also has a right to seek a second opinion from an appropriate mental health professional about their assessment or treatment (s 15(1)(b)(i)). The person also has the right to seek leave (e.g. to go out to lunch with a family member, or to spend some time at home), which can only be refused by the treating team if there is reasonable evidence that going on leave would be unsafe for the person or other people.

The treating team must also ask the person whether they have a Nominated Person, Advance Agreement or an Advance Consent Direction (s 21 and s 25). If they do not, and have the decision-making capacity to do so, they must be given an opportunity to make these documents and appointments.

As soon as possible after the person arrives at the hospital, they must be told by the treating team about these rights. They must also be given an information sheet about their rights under the Act. This must be provided in a form that the person is most likely to understand (s 15).

Community Care Orders

A Community Care Order (CCO) authorises the involuntary treatment, care and support of someone with mental disorder (s 67). CCOs are typically sought where a more intensive level of treatment, care and support is required for the person with mental disorder, including because of behavioural problems or issues of risk to the person themselves or others. Where a guardianship order is insufficient to ensure that the person is adequately supported, a CCO may be appropriate.

Mental disorders which may lead to a CCO include:
  • Dementia and other degenerative neurological disorders;
  • Intellectual disability;
  • Acquired brain injury; and
  • Personality disorders (note that the requirements of section 9 need to be met, in that the condition is causing ‘a ‘substantially disabling degree ... of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion’).
Note: The main distinction between a PTO and a CCO is that a CCO is only available for a person with a mental disorder, whereas a PTO is only available for a person with mental illness . A CCO is not just a PTO allowing community treatment, but a different type of order for people with different mental health needs. A CCO should not be confused with ‘Community Treatment Orders’ (CTO) which are part of jurisdictions’ mental health legislation (e.g. in NSW).

A CCO can authorise involuntary treatment, care and support in hospital or in the community (that is, where a person is living at home or in supported accommodation). A CCO can last for up to 6 months, but can be renewed or renewed before it expires s 76).

Unlike PTOs, only a handful of CCOs are made by ACAT each year for people in the ACT (The number of CCOs made each year are published in the Care Coordinator’s Annual Report, which is annexed to the ACT Health Annual Report). For example, there were only 8 people on CCOs in the 2016-17 Financial Year, compared with more than 600 PTOs made by ACAT over the same time. Also unlike PTOs, it is common for a Restriction Order (RO) to be made alongside a CCO, usually to require the person to live at a particular place.

The process for making a CCO is similar to that for a PTO, with some subtle but important differences which reflect the different kinds of treatment, care and support which are generally provided under a CCO. Nonetheless, like a PTO, a CCO can authorise restrictions on a person’s freedom and rights. There is a thorough and somewhat complex application and consultation process as part of the independent decision ultimately made by ACAT.

When can someone be subject to a CCO?

The requirements that need to be met before ACAT can make a CCO are set out in section 66(2) of the Act. It is up to the person making the CCO application to provide sufficient evidence for each criterion below. The person who is the subject of a CCO application can challenge this evidence or present contrasting evidence at the hearing.

A CCO can only be granted by ACAT if all of the following conditions are met at the time when it makes its decision:
  • The person has a mental disorder.
    The Act applies a particular legal definition of ‘mental disorder’ in section 9 of the Act, rather than a clinical definition of mental disorder. The ACAT is less interested in whether a person has a clinical diagnosis of a mental disorder (such as dementia) than whether there is sufficient evidence that the section 9 requirements are met.

    The person applying for the CCO will need to show that the section 9 definition is met at the time when the person was recently assessed, and that they continue to to have a mental disorder when the CCO hearing is held.

  • The person refuses to receive the treatment, care or support proposed, because either:
    the person does not have decision-making capacity to consent to the treatment, care or support, and the person refuses to receive that treatment, care or support; or
    the person has decision-making capacity to consent to the treatment, care or support, but refuses to consent.
In the decision of ED (In the matter of ED (Mental Health) [2017] ACAT 84, [49]), the ACAT noted that ‘refusal’ means the refusal of any part of the proposed treatment, care or support. This includes any treatment that is necessary for problems which have arisen as a consequence of the mental disorder or associated pain and suffering associated with the mental disorder.
As with other criteria, refusal of treatment, care or support must be assessed at the time of the CCO application (which will be after the care team attempts to offer the proposed treatment on a voluntary basis or to seek the person’s consent to treatment). The person must also be refusing the treatment at the time of the CCO hearing.
ACAT takes a practical approach to considering whether a person is refusing treatment, care or support. The Tribunal may conclude that the person is refusing based on a pattern of recent actions, even if the person does not say that they will refuse the treatment at the time of the hearing.
  • ACAT believes on reasonable grounds that, because of the mental disorder, the person—
    is doing, or is likely to do, serious harm to themself or someone else; or
    is suffering, or is likely to suffer, serious mental or physical deterioration, which is of such a serious nature that it outweighs the person's right to refuse to consent.
The inclusion of this requirement means that just because the person has a mental disorder and refuses treatment is not sufficient reason for a CCO to be granted. There must be some significant risk to themselves or other people as a result of the mental illness and the refusal of treatment which warrants ACAT intervening and overriding the freedom and liberty of the person.
  • ACAT is satisfied that treatment, care or support is likely to reduce the harm or deterioration, or the likelihood of the harm or deterioration.
Here, the treating team will need to demonstrate that the treatment by the treating team is generally effective in reducing the risk of harm or deterioration to the person. Unlike a PTO, it is not necessary to show that the proposed treatment, care and support will lead to an improvement in the person’s condition. This recognises that clinical improvement may not be possible for some mental disorders.
  • ACAT is satisfied that, in the circumstances, a psychiatric treatment order should not be made.
If there is evidence that the person has a mental illness (separate to the person’s mental disorder which forms the basis of the CCO application), or if the mental disorder is better characterised as a mental illness, then ACAT may decide to make a PTO instead of a CCO.
  • If an application has been made for a forensic mental health order—the ACAT is satisfied that a community care order should be made instead.

    As noted above, ACAT has the discretion to grant a CCO even if the application was made for a Forensic CCO (FCCO). ACAT will make a CCO instead of a FCCO if it believes that this is appropriate and less restrictive on the person.

  • The ACAT is satisfied that the treatment, care or support to be provided under the community care order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.
This final criterion allows the person to suggest there there are viable alternatives to the making of a CCO. The CCO must be the least restrictive option available, bearing in mind that the legal power to require treatment and to detain a person may be necessary and may not be possible under other treatment options.

If all the criteria in section 66(2) are not met, a CCO cannot be granted by ACAT. This is particularly relevant where the person is not refusing the proposed treatment, care or support, but does not have the decision-making capacity to consent to it. Alternatives to the making of a CCO are discussed here.

What is the process of making a CCO?

There is a four-step process to ACAT making a CCO in relation to a person:
  1. The CCO process is initiated when one of the following happens:
    1. The Care Coordinator, or a person proposing to provide the treatment, care and support under a CCO, makes an application for a CCO to ACAT;
    2. ACAT receives a referral from the Magistrate Court or Supreme Court; or
    3. ACAT receives the results of an assessment of the person conducted under an Assessment Order.
  2. ACAT considers the assessment of the person and consults with people who may be involved in the person’s life and treatment, care and support.
  3. ACAT holds a hearing to decide whether the CCO should be granted.
  4. If the CCO is granted, the Care Coordinator appoints a delegate and issues a Care Coordinator’s Determination within 5 days of the CCO being granted.
Each of these steps will be discussed in detail.

Step 1: Application, Referral or Assessment Order

Application by Care Coordinator or member of treating team

The CCO process is most commonly started when an application made by a member of the care team who is proposing to provide the treatment, care and support under the CCO. Practically, this application is made in close collaboration with the Care Coordinator (s 51(1) and (2) and s 66(1)(b)).

The CCO application is made on ACAT’s Application Form for Psychiatric Treatment Order, Community Care Order and/or Restriction Order .The application form will be completed by a member of the care team who is able to provide the information required to address the CCO criteria in section 66 described above (s 51(3)(a)), such as the evidence that the person has a mental disorder and that the proposed treatment, care and support under the CCO would reduce the risk to the person.

The application must be accompanied by a treatment plan, which will contain a general outline about the kinds of treatment, care or support to be provided to the person (s 51(3)(b)), for example, whether the person will require ongoing behavioural support and regular medication while living in a supported living arrangement. An information sheet will also be included with the application, containing the person’s details, the names and contact details for important people (e.g. the guardian or Nominated Person) and indicating whether the person has an AA or ACD.

If anything to do with the CCO application process is likely to substantially increase the risk to the person’s health and safety or the risk of serious harm to others, this must be disclosed by the psychiatrist to ACAT (s 52).

ACAT will provide a copy of the CCO application to the Public Advocate, and also to Child and Youth Protection Services (CYPS), if the person is a child (s 187).

Following an Assessment Order

If a person has already had an assessment carried out under an Assessment Order, ACAT can directly consider whether a CCO should be granted without needing a separate application (s 66(1)(a)).

Referral from the Courts

ACAT can also consider making a CCO if the person has been referred to ACAT by the ACT Supreme Court or ACT Magistrates Court if they are a defendant or accused in a criminal matter where they have been found not guilty by reason of mental impairment or if they are found unfit to plead (s 66(1)(d) and Chapter 10).

Step 2: ACAT’s Consideration of Assessment and Consultation

Under section 53, before ACAT makes a CCO in relation to a person, it must consider an assessment of the person conducted under an AO, or another mental health assessment which the ACAT considers appropriate. This may be a recent assessment of the person conducted by a mental health professional or the person’s existing care team.

As far as practicable, ACAT must also consult with a range of people before making the CCO (s 54). These people are:
  • If the person is a child:
    ○ The parents of the person, or each person who is legally responsible for the child; and
    Child and Youth Protection Services (CYPS);
  • The person’s guardian (if one has been appointed);
  • The person’s attorney (if they have appointed a person with an enduring power of attorney);
  • The person’s Nominated Person (if one has been appointed);
  • The person’s health attorney (if one is involved in the treatment, care or support of the person);
  • The Care Coordinator (or delegate);
  • ACT Corrective Services (if the person is a detainee, released on parole or licence, or a person serving a community-based sentence, or is on bail with a supervision condition);
  • Child and Youth Protection Services (CYPS) (if the person is a young detainee or a young offender serving a community-based sentence);
  • The person who applied for the Assessment Order (if the CCO hearing arose out of the results of an Assessment Order).
ACAT must also tell the person’s carer, if they have one, in writing that a hearing will be held in relation to whether a CCO should be made. The carer will be told that they can provide a written statement to be considered by the Tribunal, and that they can ask ACAT for permission to attend the hearing.

Step 3: Hearing and Decision

The ACAT Hearing

ACAT must hold a hearing in relation to whether or not a CCO should be granted (s 55). Under section 188, ACAT must give at least 3 days’ written notice of the hearing to the following people:
  • The person who is the subject of the CCO application;
  • The person’s representative (e.g. their lawyer), if they have one;
  • If the person is a child:
    ○ The parents, or each person with legal responsibility for the child; and
    ○ Child and Youth Protection Services (CYPS);
  • The person’s guardian (if one has been appointed);
  • The person’s attorney (if they have appointed a person with an enduring power of attorney)
  • The police officer who applied for an Assessment Order which led to the CCO hearing, if applicable;
  • The person who applied for the CCO (if an application was made), which is usually a member of the proposed care team or the proposed delegate of the Care Coordinator;
  • The Care Coordinator;
  • The Public Advocate;
  • The Chief Psychiatrist; and
  • Anyone else that the ACAT believes it should inform.
The person making the application must inform ACAT if she/he has reasonable grounds to believe that notifying the people above is likely to substantially increase the risk to the subject person's health or safety, or the risk of serious harm to others. If a presidential member of ACAT agrees, then the notification process can be limited or waived (s 188(2)). The Public Advocate, however, will be informed of objection to notification.

There will usually be three members of the ACAT at the CCO hearing (Section 186 requires the Tribunal to be composed of at least a presidential and a non-presidential member. In practice, CCO hearings are heard before 3 members). The Presidential Member, who is an experienced lawyer who has been appointed to the ACAT, will preside over the hearing. There will also be a medically-qualified member of the tribunal (usually a retired psychiatrist), and a community member who has been appointed to the tribunal based on their relevant experience or interests.

For CCO hearings in relation to people living in the community, hearings are held at ACAT, located at Level 4, 1 Moore Street (the ACT Health building) in Civic. If the person is currently admitted to an inpatient facility, such as the Older Persons Mental Health Unit at Calvary Public Hospital Bruce, the Tribunal may hear the application through a video link. CCO hearings are held in private (s 194), meaning that only people who have been invited by ACAT to attend may be in the room.

Hearings are relatively informal and are kept as non-adversarial as possible by the Tribunal. The representative of the treating team will present a summary of the reasons why a CCO is being sought, and answer questions by the Tribunal members and others present. The person will have an opportunity to respond to the evidence, provide their own information or ask relevant questions. The person may be represented by a lawyer (such as a lawyer from Legal Aid ACT) but does not need to be legally represented.

The person may also choose not to attend the hearing, or may be too unwell to attend. In these cases, the hearing will proceed unless there is a good reason to postpone it. The rules and processes in the Act and of the ACAT (including consultations with the person and others prior to the hearing) help ensure that the process and outcome is fair and according to law.

A representative from the Office of the Public Advocate will attend the hearing. Although the Public Advocate is not there as the legal representative of the person who is the subject of the CCO application, they will observe the hearing, ask questions of the person making the application and any service providers who may be present, provide input to the Tribunal. The Public Advocate’s role is to ensure that the CCO decision-making process is fair and consistent with the principles and requirements of the Act.

Decision and Order

In accordance with s 56, when deciding whether or not to make the CCO, ACAT must take into account the following things:
  • the treatment plan which accompanied the CCO application, if an application was made;
  • whether the person consents, refuses to consent, or has the decision-making capacity to consent, to the proposed treatment, care or support;
  • the views and wishes of the person, so far as they can be found out (including in the person’s Advance Agreement and Advance Consent Direction, if available);
  • the views of the person’s carer(s), if these views have been made known to the ACAT (e.g. if a carer has provided information in writing to ACAT or attended the ACAT hearing);
  • the views of other people who are attending the hearing;
  • the views of the people consulted by ACAT, as listed above (under s 54);
  • that any restrictions placed on the person should be the minimum necessary for the safe and effective care of the person;
  • any alternative treatment, care or support available, including—
    ○ the purpose of the treatment, care or support; and
    ○ the benefits likely to be derived by the person from the treatment, care or support; and
    ○ the distress, discomfort, risks, side effects or other disadvantages associated with the treatment, care or support;
  • any relevant medical history of the person;
  • for a person referred to ACAT after being found by a court to be not guilty by reason of mental impairment or unfit to plead:
    ○ the nature and circumstances of the alleged offence or the offence in relation to which the person is charged; and
    ○ the nature and extent of the person's mental disorder and the effect it is likely to have on the person's behaviour in the future; and
    ○ whether, if the person is not detained, the person's health or safety is, or is likely to be, substantially at risk, or the person is likely to do serious harm to others.
In addition, ACAT must make the decision in accordance with the principles of the Act, which are found in Emergency Apprehension and Detention.

ACAT will almost always reach a decision whether or not to grant the CCO at the end of the hearing. The decision will be announced orally (ex tempore) by the Tribunal, and if a CCO is granted, the written order will be issued shortly afterwards. Detailed written reasons for granting, or not granting, the CCO are not usually given by the Tribunal.

The written order issued by ACAT will formally set out the requirements and conditions of the CCO. Under s 67, the Order may state one or more of the following:
  • The person is to be given treatment, care or support;
  • The person may be given medication, prescribed by a doctor, for the treatment of the person’s mental disorder;
  • The person is to undertake a counselling, training, therapeutic or rehabilitation program;
  • Limits may be imposed on communication between the person and other people.
The CCO only authorises the overall direction of the treatment, care and support to be provided. ACAT is prohibited from ordering a particular treatment (such that a particular medication to be given), as this is the clinical decision of delegate of the Care Coordinator (s 57). ACAT’s role is to consider whether the legal requirements in the Act are met so that it can authorise the overall package of treatment, care and support to be provided under the CCO. As such, the CCO will also specify that the person must comply with the treatment determination made by the care team on behalf of the Care Coordinator (s 67(3)(a)).

If a CCO is made, a copy of the written order must be given to the person, the treating team (on behalf of the Care Coordinator) and people who have been previously consulted or who are currently involved in the person’s treatment, care or support (s 195).

If an application is made for a Restriction Order (RO), ACAT will consider the RO application at same time. The making of ROs is discussed here.

Step 4: Care Coordinator’s Determination

If ACAT grants a CCO, the Care Coordinator becomes responsible for coordinating the provision of treatment, care or support for the person (s 70(1)). The Care Coordinator will then formally appoint a delegate who agrees to take on this responsibility on behalf of the Care Coordinator (s 207). The delegate will usually be a senior clinician or officer within the ACT Government (including ACT Health), or someone associated with the care team who is aware of the person’s situation and what is needed to coordinate the treatment, care and support under the CCO.

The Care Coordinator, or delegate, is required within 5 working days of the CCO being made to issue a written determination about the treatment, care and support to be provided (s 70(2)). This determination is made on the Community/Forensic Community Care Order - Care Plan - Care Coordinator’s Determination form. The determination contains more detail about the treatment, care and support to be provided and how it is to be take place, subject to the limits imposed by ACAT in the CCO. The determination will also specify the times and places where the person is required to attend to receive treatment, care or support, or undertake a counselling, training or rehabilitation program in accordance with the CCO.

Before making the determination, the Care Coordinator’s delegate must take all reasonable steps to consult with a range of people about the proposed treatment, care and support and take into account their views (s 70(3)). These people are:
  • The person who is the subject of the CCO;
  • The parents, or each person with parental responsibility for the child (if the person is a child);
  • The person’s guardian (if one has been appointed);
  • The person’s attorney (if they have appointed a person with an enduring power of attorney);
  • The person’s carer (if they have one);
  • The person’s Nominated Person (if they have appointed one);
  • The person’s Health Attorney (if one is involved in the person’s treatment, care or support);
  • ACT Corrective Services (if the person is a detainee, released on parole or licence, or a person serving a community-based sentence, or is on bail with a supervision condition);
  • Child and Youth Protection Services (CYPS) (if the person is a young detainee or a young offender serving a community-based sentence).
The delegate may also consult with any other service providers involved in the person’s treatment, care or support which they consider to be relevant.

The Care Coordinator’s Determination form will record the person’s views in relation to the proposed treatment, care and support, and if the person was not consulted, the reasons why the consultation did not occur.

In practice, this consultation process will occur or begin to occur in advance of the CCO hearing. This is done so that the determination can be finalised as soon as possible after the CCO is granted. The Care Coordinator’s Determination form may nonetheless be updated within the five working day period before it is finalised, as new information becomes available or as the care plan is further developed.

A copy of the determination must be given by the care team to the person subject to the CCO, the ACAT, the Public Advocate, and some of the people previously consulted (s 70(5)).

What can happen under a CCO?

Treatment, care and support

Once the Care Coordinator’s determination has been made, the person can receive involuntary treatment, care and support for their mental disorder. This means that the person is not required to consent to the treatment, and that the treatment can be given even if the person is resisting it. However, to give effect to the principles of the Act, the person should always be asked if they consent to each specific treatment action or decision, should be actively involved in their treatment, and their views and interests should always be taken into account.

The treatment, care and support provided under a CCO can be provided by any appropriate public or private service provider as determined by the delegate of the Care Coordinator. In some cases, the treatment, care and support may be provided by ACT Health Mental Health, Justice Health and Alcohol and Drug Services (MHJHADS), especially if inpatient care is needed in relation to a co-existing mental illness. For people residing in the community, the treatment, care and support may be provided by private and community service providers, including under a NDIS package. The CCO provides the legal mechanism to require the person to receive the proposed treatment, care and support.

Explaining the treatment, care or support

The care team must explain the treatment, care or support to be provided to the person under the CCO before it can commence. The treating team must explain the nature and effects (including any side effects) of the treatment, care of support, and do so in a way that they are most likely to understand (s 71). This may involve providing the information at a time when the person is most likely to understand the information (e.g. not when person is tired or experiencing the side effects of medication), or in accordance with the person’s preferences as expressed in their Advance Agreement. It may also use using an interpreter, engaging with decision supporters or carers, or the use of assistive technologies.

Inpatient detention

In limited situations, the CCO can require a person to be detained at an approved community care facility to receive treatment (s 73(1)). This can only occur where: As discussed in the Important Concepts section, an ‘approved community care facility’ is also a mental health facility operated by ACT Health or Calvary Public Hospital Bruce.

If a person is detained, they are required to stay at the facility as an inpatient until they are discharged or given leave. Detention at an approved community care facility can also mean that reasonable restrictions are placed on the person’s freedoms to prevent the person from causing harm to themselves or someone else. For example, this may involve the person being subject to reasonable restrictive practices (e.g. not being allowed to do certain things), or that visitors (other than the person’s lawyer, the Public Advocate or other officials with a right to visit) are not allowed for a period of time.

The person may also be physically restrained (i.e., held securely for a short period of time) if this is reasonable and necessary to prevent harm to the person themselves or someone else. Under ACT Health policy, physical restraint is only used if other strategies to engage with the person and to reduce their distress or aggression are not successful. Physical restraint is carried out only by clinicians, wardspeople or security officers who are trained in techniques which minimise the risk of injury.

If a person has been restrained, they must be examined by a doctor afterwards and will be given an opportunity to debrief about what happened and to find out what might be helpful to prevent something like this happening again. The Public Advocate must also be informed by the treating team.

Seclusion

In addition, if the person is detained at an approved community care facility, they may be subject to seclusion for up to 4 hours. See the discussion of seclusion in relation to PTOs for how they operate in relation to CCOs. As seclusion can only be carried out in a mental health facility with seclusion facilities, the authorisation of a consultant psychiatrist is also necessary.

Restriction Orders

A Restriction Order (RO) is a supplementary mental health order that can be made by ACAT if has decided to make a PTO or a CCO. If the treating team or person making the PTO or CCO application believes that an RO is needed, they will include the relevant information as part of that application, although ACAT retains the authority to make a RO if it is satisfied that the requirements are met.

An RO can impose one or more of the following restrictions on the person who is subject to the PTO or CCO (s 61 (PTOs) and s 69 (CCOs)):
  • That the person live (but not be detained) in the place stated in the RO;
  • That the person be detained in an approved mental health facility (for PTOs) or approved community care facility (for CCOs);
  • That the person must not approach a specified person;
  • That the person must not go to a specified place; or
  • That the person must not undertake a specified activity.
ROs are rarely made with a PTO but are more commonly made together with a CCO, especially where ACAT agrees that a person should be required to live in a certain place.

For ACAT to make a RO, it must be satisfied that the following two criteria are met (section 60 for PTOs and section 68 for CCOs):
  • Firstly, it is in the interests of the person’s health or safety, or the safety of someone else or the public, to make the RO; and
  • Secondly, the treatment, care or support to be provided under the PTO or CCO (together with the RO) cannot adequately be provided in another way that would involve less restriction of the person’s freedom of choice and freedom of movement.
A RO can last for a maximum of 3 months, which is shorter than the maximum of 6 months for a PTO or a CCO (s 76). The person who is subject to the RO can apply to ACAT for a review of the RO at any time, as discussed below.

Contraventions of Mental Health Orders

A Mental Health Order is legally binding on the person. The person is required to comply with all the conditions of the Order, such as being admitted or detained at a particular facility and receiving the treatment, care and support specified in the Chief Psychiatrist or Care Coordinator’s determination (s 59(2)(a) (for PTOs) and 67(3)(a) (for CCOs)). If a person does not comply with the terms of the PTO or CCO, they have contravened the Order. This is also known informally as ‘breaching’ the Order.

The Act makes a distinction between two kinds of contravention:
  1. Where a person absconds from (leaves without permission) an approved mental health facility or community care facility at which they are being detained; or
  2. Any other circumstance where the person is not complying with the requirements of the PTO or CCO.

Absconding from detention

Absconding from detention is covered in section 78 of the Act. A person absconds is they leave the facility at which they are being detained under the PTO or CCO without permission (s 78(1)). Section 78 does not apply if a person fails to return to the facility after being out on approved leave, or does not comply with the terms of the leave; this is considered to be a standard contravention of the Order.

A person who absconds from the facility may be immediately apprehended by a police officer, ambulance paramedic, Mental Health Officer or doctor (s 78(2)). They are then returned to the facility from which they were detained, or taken to the Emergency Department of the Canberra Hospital if a more urgent assessment of the person is needed. These four categories of authorised officers may lawfully enter premises (e.g. a person’s house) and use other reasonable force to apprehend the person and ensure that they are returned securely and safely (ss 263 and 264).

Once they are re-detained at the approved mental health facility or approved community care facility, the treating team must inform the ACAT and the Public Advocate about the contravention and apprehension (s 78(4)). ACAT must then review the PTO or CCO within 3 days (s 79(3)(c)). This may result in the PTO or CCO being extended, additional conditions imposed, or a Restriction Order being made.

Other contraventions

Responses to other contraventions of a PTO or CCO must follow the process set out in s 77. The treating team (on behalf of the Chief Psychiatrist) or the delegate of the Care Coordinator, must take these steps:
  1. Firstly, within seven days of the contravention of the PTO or CCO, the person must be told verbally that a failure to comply with the Order may result in the person being apprehended and re-detained.
  2. If the person does not comply, the person will be issued a written warning signed by the Chief Psychiatrist or Care Coordinator informing them that a further failure to comply will result in the person being apprehended and re-detained.
  3. Finally, if the person still does not comply, a police officer, ambulance paramedic, Mental Health Officer or doctor may apprehend the person and return them to the facility from which they were detained, or taken to the Emergency Department of the Canberra Hospital if a more urgent assessment of the person is needed. As is the case under s 78, discussed above, reasonable force may be used as part the apprehension, including entering premises and the use of restraint (s 263 and 264).
Once they are re-detained at the approved mental health facility or approved community care facility, the treating team must inform the ACAT and Public Advocate about the contravention and apprehension (s 78(4)). ACAT must then review the PTO or CCO within 3 days (s 79(3)(c)). This may result in the PTO or CCO being extended, additional conditions imposed, or a Restriction Order being made.

Review and Revocation of Mental Health Orders

A Mental Health Order is in force until it expires, but can be reviewed and revoked by ACAT any time before its expiry. There are four ways in which a PTO, CCO or RO can be reviewed, which are set out in s 79 of the Act.

Application by the person or their representative for a review

The person (or their lawyer, guardian, Nominated Person, a relative or friend, or person appointed under an enduring power of attorney) can make an application to the ACAT for a review if they believe that the PTO, CCO or RO, or a specific requirement in a Mental Health Order, is no longer required (s 79(2)). ACAT will then schedule a review hearing. This will be very similar to the hearing for an initial PTO or CCO application, as previously described.

Routine review of Mental Health Orders by ACAT

The ACAT is entitled to conduct its own reviews of Mental Health Orders (s 79(1)). ACAT will do this as a matter of routine before a PTO or CCO expires. A review hearing will be scheduled by ACAT shortly before the expiry date so that the Tribunal can decide whether or not to renew the order (by making a new order), and if so, for how long and under what conditions. As part of the review, ACAT will generally request that a new mental health assessment be conducted by the treating team or care team and that a report be provided to the Tribunal before the hearing.

The treating team or delegate believe that the Mental Health Order is no longer appropriate or necessary

The delegate of the Chief Psychiatrist or Care Coordinator (as appropriate) must inform the ACAT if the person no longer meets the criteria for the PTO, CCO, or if they no longer need the RO (s 64 and s 72). This may happen, for instance, if the person has recovered to an extent that they no longer meet the legal criteria for having a mental illness or mental disorder, or if they have decision-making capacity and are willing to consent to the treatment, care and support they are receiving.

The treating team or care team must then contact the person’s carer and Nominated Person, if applicable, and tell them why they believe that the person no longer meets the PTO or CCO criteria, or why a RO is no longer necessary. They will ask the carer and Nominated Person if they have any information that may indicate that the Mental Health Order is still appropriate. The treating team or care team will inform the carer and Nominated person that they plan to make an application to ACAT to revoke the Order, and that the carer and Nominated Person have the right to provide ACAT with a written statement about their views, and to ask for permission to attend the review hearing (s 64(3) and 72(3)). The Public Advocate will also be informed about this intention to revoke the Order.

If the delegate of the Chief Psychiatrist or Care Coordinator still believe that the application for revocation should still go ahead after hearing the views of the carer and Nominated Person, they must make an application to ACAT to revoke the order (s 79(3)(a) and (b)). ACAT will then review the Order, which will usually be done without holding a hearing unless the application for the revocation is opposed by the Carer or Nominated Person.

If the ACAT agrees that the person no longer meets the criteria for a PTO or CCO, the ACAT must revoke all Mental Health Orders which apply to the person (s 79(5)). If, however, the treating team or care team are only seeking that the RO be revoked, the ACAT can revoke or vary the RO without affecting the PTO or CCO, although the Tribunal is nonetheless able to make decisions about any Mental Health Order which applies to the person, as discussed below.

Contravention of the Mental Health Order

If the person contravenes the PTO, CCO or RO and is apprehended and detained as a result, ACAT must review the Order within 3 days of being notified that the person has been detained. ACAT may review the Mental Health Order without hold a hearing (s 79(4)).

Outcome of a review application

When ACAT reviews a Mental Health Order, it can:
  • Confirm the order (affirm that it is correctly made and is valid as is);
  • Amend the order (vary the duration of the order or the conditions of the order);
  • Revoke the order (in which case the person becomes a voluntary patient);
  • Make additional orders (including a new PTO or CCO or a RO); or
  • Make an Assessment Order, requiring the person to undergo a mental health assessment for the purposes of determining what further treatment, care and support is needed (s 79(6)).
However, as discussed above, if ACAT is asked by the treating team or care team to revoke a PTO or CCO, it must revoke all Mental Health Orders which apply to the person if it agrees that the person no longer meets the PTO or CCO criteria (s 79(5)).

Alternatives to Mental Health Orders

Where a person does not meet the criteria in the Act for a Mental Health Order to be made, a number of other options are available for supported or substitute decision-making in relation to treatment, care and support:
  • If the person has an ACD which consents to the treatment being proposed, then that treatment, care or support can be provided under the ACD without further orders or consents being needed.
  • If the person has a guardian appointed by ACAT and the Guardianship Order authorises mental health treatment, the guardian can provide written consent to most types of proposed mental health treatment, care or support (Guardianship and Management of Property Act 1991, s 70A). The consent is valid for up to 6 months at a time, but can be renewed in writing.
  • If the person has an attorney appointed under an enduring power of attorney (EPOA), then the attorney can give written consent to the treatment. This consent is valid for up to 6 months, but can be renewed in writing (Powers of Attorney Act 2006, s 46A).
  • If the person does not have an ACD, guardian or person appointed as an enduring power of attorney, the treating team can appoint the person’s domestic partner, carer, close relative or close friend as a health attorney to provide consent to the treatment for the person. The Public Advocate must be informed of the consent and treatment plan. This consent is valid for up to 21 days, but an application to ACAT can be made to extend the consent for up to a further to 8 weeks (Guardianship and Management of Property Act 1991, Part 2A).
These alternatives only apply where the person is willing to receive the treatment, care or support. A guardian, health attorney or person appointed under a power of attorney cannot give consent to ECT or psychiatric surgery.

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