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Treatment Authorities under the Mental Health Act 2016 (Qld)

What is a treatment authority?

 

A treatment authority is an order made by an authorised doctor for the treatment of a person with a mental illness without that person’s consent. A treatment authority order can authorise the involuntary detention of the person receiving treatment at a mental health facility, or community-based treatment.

 

THE MENTAL HEALTH ACT 2016

 

Treatment authorities in Queensland are made under the Mental Health Act 2016 (Qld).

 

The main objects of the Mental Health Act 2016 are:

 

(a) to improve and maintain the health and wellbeing of persons who have a mental illness who do not have the capacity to consent to be treated; and

(b) to enable persons to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial; and

(c) to protect the community if persons diverted from the criminal justice system may be at risk of harming others.

 

Section 3(2) of the Mental Health Act 2016 provides that the main objects are to be achieved in a way that safeguards the rights of persons, is the least restrictive of the rights and liberties of a person who has a mental illness and promotes the recovery of a person who has a mental illness, and the person’s ability to live in the community, without the need for involuntary treatment and care.

 

WHEN CAN A TREATMENT AUTHORITY BE MADE?

 

Section 48 of the Mental Health Act 2016 provides that a treatment authority can only be made by an authorised doctor in the following circumstances:

  1. – after an assessment under part 3 of the Act;
  2. – the authorised doctor is satisfied the treatment criteria apply to the person; and
  3. – the authorised doctor is satisfied there is no less restrictive way for the person to receive treatment and care for the person’s mental illness.

 

Section 12 of the Mental Health Act 2016 defines the ‘treatment criteria’ as all of the following:

 

(a) the person has a mental illness;

(b) the person does not have capacity to consent to be treated for the illness;

(c) because of the person’s illness, the absence of involuntary treatment, or the absence of continued involuntary treatment, is likely to result in—

(i) imminent serious harm to the person or others; or

(ii) the person suffering serious mental or physical deterioration.

 

Section 14 of the Mental Health Act 2016 defines ‘capacity to consent’ as follows:

 

14 Meaning of capacity to consent to be treated

(1) A person has “capacity” to consent to be treated if the person—

(a) is capable of understanding, in general terms—

(i) that the person has an illness, or symptoms of an illness, that affects the person’s mental health and wellbeing; and

(ii) the nature and purpose of the treatment for the illness; and

(iii) the benefits and risks of the treatment, and alternatives to the treatment; and

(iv) the consequences of not receiving the treatment; and

(b) is capable of making a decision about the treatment and communicating the decision in some way.

(2) A person may have “capacity” to consent to be treated even though the person decides not to receive treatment.

 

Section 13 of the Mental Health Act 2016 defines ‘no less restrictive way’ as follows:

 

(1) For this Act, there is a “less restrictive way” for a person to receive treatment and care for the person’s mental illness if, instead of receiving involuntary treatment and care, the person is able to receive the treatment and care that is reasonably necessary for the person’s mental illness in 1 of the following ways—

(a) if the person is a minor—with the consent of the minor’s parent;

(b) if the person has made an advance health directive—under the advance health directive;

(c) if a personal guardian has been appointed for the person—with the consent of the personal guardian;

(d) if an attorney has been appointed by the person—with the consent of the attorney;

(e) otherwise—with the consent of the person’s statutory health attorney.

 

HOW IS A TREATMENT AUTHORITY MADE?

 

Section 49 of the Mental Health Act 2016 provides that:

 

“The authorised doctor may make an authority (a “treatment authority”) for the person.”

 

Section 50 of the Mental Health Act 2016 provides that:

 

“50 Form of treatment authority

(1) The treatment authority must—

(a) be in the approved form; and

(b) state the following—

(i) the grounds on which the authorised doctor is satisfied the treatment criteria apply to the person;

(ii) the authorised mental health service responsible for the person’s treatment and care under the authority;

(iii) the category of the authority;

(iv) if the authorised doctor decides under section 51 (1) that the category of the authority is inpatient—whether limited community treatment is authorised for the person;

(v) any conditions the authorised doctor considers necessary for the person’s treatment and care.

 

(2) For subsection (1) (b) (ii) , if the authorised doctor decides under section 51 (1) that the category of the authority is inpatient, the authorised mental health service responsible for the person’s treatment and care must not be a high security unit without the prior written approval of the chief psychiatrist.”

 

TYPES OF TREATMENT AUTHORITIES

 

Section 51 of the Mental Health Act 2016 provides for two types of treatment authorities – inpatient and community:

 

51 Category

(1) If the authorised doctor makes a treatment authority for the person, and the person is not a classified patient, the authorised doctor must decide whether the category of the authority is—

(a) inpatient; or

(b) community.

(2) In deciding the category of the authority, the authorised doctor must have regard to the relevant circumstances of the person.

(3) However, the authorised doctor may decide the category of the authority is inpatient only if the authorised doctor considers, after having regard to the relevant circumstances of the person, that 1 or more of the following can not reasonably be met if the category of the authority is community—

(a) the person’s treatment and care needs;

(b) the safety and welfare of the person;

(c) the safety of others.

(4) If the person is a classified patient, the category of the authority is inpatient.

 

Section 52 of the Mental Health Act 2016 provides that:

 

(1) If the authorised doctor decides under section 51 (1) that the category of the treatment authority is inpatient, the authorised doctor must decide whether to authorise limited community treatment.

(2) The authorised doctor may decide to authorise limited community treatment only if satisfied limited community treatment is appropriate having regard to—

(a) the relevant circumstances of the person; and

(b) the purpose of limited community treatment.

 

Section 53 of the Mental Health Act 2016 provides that:

 

53 Nature and extent of treatment and care

(1) The authorised doctor must decide the nature and extent of the treatment and care to be provided to the person under the treatment authority.

(2) In deciding the nature and extent of the treatment and care, the authorised doctor must—

(a) discuss the treatment and care to be provided with the person; and

(b) have regard to the views, wishes and preferences of the person, to the extent they can be expressed, including, for example, in an advance health directive.

 

Section 64 of the Mental Health Act 2016 defines what a classified patient is, and that there are two types – involuntary and voluntary:

 

A “classified patient (involuntary)” is

(a) a person who is—

(i) subject to any of the following—

(A) a recommendation for assessment;

(B) a treatment authority;

(C) a forensic order (mental health);

(D) a treatment support order; and

(ii) transported under part 2 from a place of custody to an inpatient unit of an authorised mental health service; and

(iii) admitted to the inpatient unit of the authorised mental health service; or

(b) a person who—

(i) is subject to any of the following—

(A) a treatment authority;

(B) a forensic order (mental health);

(C) a treatment support order; and (ii) remains in an inpatient unit of an authorised mental health service under section 74 .

 

(3) A “classified patient (voluntary)” is—

(a) a person who—

(i) is transported under part 2 from a place of custody to an inpatient unit of an authorised mental health service; and

(ii) is admitted to the inpatient unit of the authorised mental health service; and

(iii) consents under section 67 or 79 to receiving treatment and care for the person’s mental illness in the inpatient unit of the authorised mental health service; or

(b) a person who—

(i) remains in an inpatient unit of an authorised mental health service under section 74; and (ii) consents under section 74 to receiving treatment and care for the person’s mental illness in the inpatient unit of the authorised mental health service.

 

 

CHANGING A TREATMENT AUTHORITY

 

Section 209 of the Mental Health Act 2016 provides that an authorised doctor may amend the patient’s treatment authority to change the category of the authority, authorise or revoke, or change the nature or extent of, limited community treatment or impose a condition on, or change a condition of, the authority. However, section 210 of the Mental Health Act 2016 provides that the authorised doctor may change the category of the authority to inpatient only if the authorised doctor considers, after having regard to the relevant circumstances of the patient, that the person’s treatment and care needs, the safety and welfare of the person or the safety of others can not reasonably be met by doing so.

 

Similarly, section 423 of the Mental Health Act 2016 provides that the tribunal must change the category of the authority to community, unless the tribunal considers that the person’s treatment and care needs, the safety and welfare of the person or the safety of others can not reasonably be met by doing so.

 

WHEN DOES A TREATMENT AUTHORITY END?

 

There are a number of ways in which a treatment authority can be revoked.

 

Reviewing the treatment authority

 

Section 56 of the Mental Health Act 2016 provides that if the authorised doctor who made a treatment authority is not a psychiatrist, an authorised psychiatrist must review the treatment authority and decide whether to confirm or revoke the treatment authority, ordinarily within 3 days after the treatment authority is made.

 

Section 205 of the Mental Health Act 2016 provides that subsequent assessments of the patient under this section must be completed within 3 months after the date of the patient’s previous assessment and also if the authorised doctor considers at any time that the treatment criteria may no longer apply to the patient, or there may be a less restrictive way for the patient to receive treatment and care for the patient’s mental illness..

 

Section 206 of the Mental Health Act 2016 provides that after making such an assessment, the authorised doctor must revoke the patient’s treatment authority if they consider the treatment criteria no longer apply to the patient or if there is a less restrictive way for the patient to receive treatment and care for the patient’s mental illness.

 

Section 207 of the Mental Health Act 2016 provides that an Authorised psychiatrist may revoke a treatment authority if the patient has been missing for at least six months.

 

Section 208 of the Mental Health Act 2016 provides that the chief psychiatrist may revoke the patient’s treatment authority if they consider the treatment criteria no longer apply to the patient or if there is a less restrictive way for the patient to receive treatment and care for the patient’s mental illness.

 

Mental Health Review Tribunal

 

Section 413(1) of the Mental Health Act 2016 requires that the tribunal must periodically review the treatment authority:

 

(a) within 28 days after the authority is made; and

(b) within 6 months after the review under paragraph (a) is completed; and

(c) within 6 months after the review under paragraph (b) is completed; and

(d) at intervals of not more than 12 months after the review under paragraph (c) is completed.

 

In addition, section 413(2) of the Mental Health Act 2016 requires that the tribunal must periodically review the treatment authority on application by the person subject to the authority, an interested person or the chief psychiatrist. Further, the tribunal may at any time, on its own initiative, review a treatment authority.

 

However, section 415 of the Mental Health Act 2016 requires that the tribunal must not review the treatment authority if an appeal to the Mental Health Court against the tribunal’s decision on a review of the authority is pending and the court has stayed the tribunal’s decision on the review of the authority.

 

Section 412 of the Mental Health Act 2016 requires that in making a decision in relation to a review of a treatment authority, the tribunal must have regard to the relevant circumstances of the person subject to the authority.

 

Section 419 of the Mental Health Act 2016 provides what decisions the tribunal may make. On a periodic review of a treatment authority, the tribunal must decide to confirm the authority revoke the authority. On an applicant review of a treatment authority, the tribunal must decide whether to make the orders sought by the applicant and may make the orders under this division it considers appropriate. On the tribunal’s review of a treatment authority, the tribunal must decide any particular matter stated in the notice issued for the review and may make the orders under this division it considers appropriate.

 

Section 420 of the Mental Health Act 2016 provides that for a periodic review, if the person subject to the authority does not have a personal guardian or a health matter appointed by QCAT for the person under the Guardianship and Administration Act 2000:

 

(a) the administrator of the person’s treating health service must give the tribunal a report about whether the appointment of a personal guardian for the person may result in there being a less restrictive way for the person to receive treatment and care for the person’s mental illness; and

(b) the tribunal must consider whether the appointment of a personal guardian for the person may result in there being a less restrictive way for the person to receive treatment and care for the person’s mental illness.

 

 

421 Requirement to revoke treatment authority

(1) On a review of a treatment authority, the tribunal must revoke the authority if the tribunal considers—

(a) the treatment criteria no longer apply to the person subject to the authority; or (b) there is a less restrictive way for the person to receive treatment and care for the person’s mental illness.

(2) However, subsection (1) does not apply if the tribunal considers the person’s capacity to consent to be treated for the person’s mental illness is not stable.

 

Section 546 of the Mental Health Act 2016 provides that an appeal to the Mental Health Court against a decision of the tribunal is by way of rehearing. In deciding the appeal, the Mental Health Court may confirm or set aside the decision appealed against. When setting aside a decision, the Mental Health Court may substitute another decision or return the matter to the tribunal with the directions the Mental Health Court considers appropriate.

 

CONCLUSION

 

The Mental Health Act 2016 requires that treatment authorities are only in place if a person has a mental illness and person has a mental illness, does not have capacity to consent to be treated for the illness and the absence of involuntary treatment is likely to result in serious imminent harm or mental or physical deterioration. Even then, there must be no less restrictive way that would prevent the anticipated harm.

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