The Law Handbook 2024

830 Section 8: Disability, mental illness and the law An assessment order can only be made if all the following criteria are met (s 142): a the person appears to have a mental illness; b because of this, they appear to need immediate treatment to prevent serious deterioration in their mental or physical health, or serious harm to the person or to someone else; c if the person is made subject to an assessment order, the person can be assessed; and d there is no less restrictive means reasonably available to enable the person to be assessed. The purpose of an assessment order is to enable the person to be examined (even if they don’t consent) by an authorised psychiatrist to determine whether they have mental illness and meet all the criteria for compulsory treatment. If the examination can take place in the community, a community assessment order should be made. If the examination cannot occur in the community, an inpatient assessment order can be made (s 145). This enables the person to be taken to and detained in a designated mental health service (i.e. a public hospital) to be examined. For the purpose of making the assessment order, it is only necessary to find the person appears to have mental illness, not to determine for certain they do have mental illness. This is the distinction between the assessment criteria and treatment criteria. The patient must be informed they are subject to an assessment order, explained the purpose and effect of the order, and given a copy of the order and a statement of rights (s 150). Other people must also be notified, including any nominated support person (see ‘Nominated support person’, below), a guardian, carer (if the order affects the care relationship) and the person’s parent, if they are under 16. If an inpatient assessment order is made, the patient must be taken to a designated mental health service as soon as practicable (s 149). If required, an authorised person (including ambulance officer, police officer, mental health practitioner, or doctor working at a public mental health service) has the power to enter premises (using reasonable force), take the person into care and control, and take them to a designated mental health service (s 246). An inpatient assessment order expires after 72 hours. If they arrive at hospital within 72 hours, the order expires 24 hours after their arrival, provided the total length of the order does not exceed 72 hours. A community assessment order is valid for 24 hours. Before an assessment order expires, an authorised psychiatrist must examine the person to determine whether they meet the treatment criteria (see ‘Treatment criteria’, below). If they do not meet the criteria, then the authorised psychiatrist must immediately revoke the assessment order (s 161). If, after examining the person, the authorised psychiatrist is unable to determine whether the treatment criteria apply, they can extend the order for up to a further 24 hours, with a maximum of two extensions (s 147). Before an authorised psychiatrist’s examination, the doctor or mental health practitioner can vary a community assessment order to an inpatient assessment order or vice versa. Again, an inpatient assessment order can only be made if the assessment cannot occur in the community (s 153). The patient and others must be notified of the variation. Treatment on an assessment order While on an assessment order, a person cannot be given treatment without their informed consent unless a doctor at the designated mental health service is satisfied that urgent treatment is necessary to prevent serious deterioration in their mental or physical health, or to prevent serious harm to them or someone else (s 160). Court assessment order Where a person is found guilty of an offence or pleads guilty to an offence, the court has the power to make a court assessment order ( CAO) under Part 5 of the Sentencing Act 1991 (Vic) (‘ Sentencing Act ’). This enables a person to be taken to and, if necessary detained in, a mental health service for examination by an authorised psychiatrist, in order to assist the court in sentencing. In assessing the person, the authorised psychiatrist must determine whether the person should be made subject to an inpatient court assessment order if the assessment cannot occur in the community. They can also make a TTO if satisfied the compulsory treatment criteria apply (s 180). The authorised psychiatrist must also determine whether the criteria specified in section 94B(1)(c) of the Sentencing Act for making a court secure treatment order ( CSTO ) apply (s 177) (these criteria are essentially the same as the treatment criteria; see ‘Treatment criteria’, below).