The Law Handbook 2024

832 Section 8: Disability, mental illness and the law Step 3: Making a treatment order A person cannot be subject to compulsory treatment beyond the initial 28-day TTO unless the MHT makes a further order, a TO under section 192 of the MHWA. Similarly, a person cannot be subject to compulsory detention/treatment after their TO expires, unless the MHT conducts a hearing and makes a further TO. This safeguard provides accountability for compulsory treatment. For a person already on a TO, their authorised psychiatrist must apply to the MHT at least 10 business days before the expiry of the TO (s 191), following which the MHT must then conduct a hearing, again before the expiry of the order. The registrar has discretion to accept out of time applications. If the MHT considers that all four treatment criteria under section 143 are met, the MHT must make a TO. If not satisfied that all the treatment criteria apply, they must revoke the order the person is subject to (TTO or TO). For the purposes of making a TO, the MHT must, to the extent that is reasonable in the circumstances, consider the range of views (see ‘Views and preferences that must be considered’, above). Setting and duration of a treatment order If the MHT makes an order, it must also determine whether to make an inpatient TO ( ITO ) or a community TO ( CTO ) (s 194), and how long the order should be – up to the maximum stipulated duration. In doing so, the MHT must again have regard to all the relevant views. For a young person under 18 years old, the maximum duration of treatment orders is three months (both CTO and ITO). For an adult 18 years or over, the maximum duration of treatment orders is six months (both CTO and ITO). The MHT does not have the power to split the setting of an order by ordering the authorised psychiatrist to make a CTO for the person within a reasonable period of time. Rather than the MHT making the duration of the inpatient order as less restrictive as possible by reflecting the length of the projected inpatient stay, it is generally left to the authorised psychiatrist to vary the inpatient order to a community order when they are satisfied that treatment can occur in the community. Treatment decisions for a person on a treatment order If a compulsory patient is unable to provide informed consent or does not consent, then compulsory treatment can be given but – consistent with the mental health and wellbeing principles of the MHWA, the treatment criteria, and the decision- making principles – the treatment must be the least restrictive treatment necessary to prevent serious harm or serious deterioration. Variation of a treatment order An authorised psychiatrist has the power to vary community orders (CTTO and CTO) to inpatient orders (ITTO and ITO) if they are satisfied that the person cannot be treated in the community (s 200 MHWA). The MHT must be notified as soon as practicable after such a variation, triggering a hearing at the MHT within 28 days after the variation (203). Likewise, an authorised psychiatrist can vary inpatient orders to community orders. Once varied, a person must be given a copy of the order, and other key people informed, including the nominated support person. Such variations do not affect the duration of the initial order (s 201). If a community order is varied to an inpatient order, the personmust be taken as soon as practicable to a designated mental health service (s 200(4)). Authorised persons have a range of apprehension and other powers in certain circumstances if a person does not go to hospital (see ‘Mental health crisis response and transport by authorised persons’, below). Leave of absence Under the MHWA (pt 4.7), the authorised psychiatrist may grant a leave of absence for a person who is detained in hospital on an inpatient assessment order, inpatient court assessment order, inpatient TTO or inpatient TO. Leave may be granted so the person can receive mental health or medical treatment, or for any other purpose the authorised psychiatrist is satisfied is appropriate. The conditions and duration of a leave of absence are determined considering the purpose of the leave and if the person’s (or others’) health and safety will not be seriously endangered as a result (s 214).