Introduction
A factsheet on the law and procedure relating to involuntary assessments under Chapter 2 of the Mental Health Act 2000 (Qld) (MHA). This factsheet does not relate to the assessment of people who have been charged with an offence or who are in lawful custody.
The MHA can be accessed in full on the Queensland Health website at http://www.health.qld.gov.au/mha2000.
For a glossary of terms, see the Mental Health Review Tribunal's website at http://www.mhrt.qld.gov.au/Content/Glossary.aspx.
For a flowchart on involuntary assessment and treatment in the Queensland mental health system, see QPILCH's website at http://www.qpilch.org.au/resources/openDoc.php?rid=401.
What is an involuntary assessment?
The Mental Health Act 2000 (Qld) enables the involuntary assessment of a person by a doctor at a mental health service to determine whether that person should receive treatment for their mental illness (see Involuntary Treatment Order (ITO)). A person under an involuntary assessment may be taken to and detained at an authorised mental health service against their will.
How is an involuntary assessment initiated?
An involuntary assessment is only authorised if there are assessment documents in force made under section 16 of the MHA.
It may be necessary to examine the person before assessment documents can be made. This may require the issue of a Justices Examination Order (JEO) (in non urgent circumstances) or an Emergency Examination Order (EEO) (in urgent circumstances) which enables the person's involuntary examination.
How are assessment documents made?
Assessment documents consist of a request for assessment and a recommendation for assessment.
These documents can be made in any order but must be made within 7 days of each other (s 22, MHA) and must be made by different people (s 23, MHA).
Request for assessment
A request for assessment can be made by any adult who:
- reasonably believes the person has a mental illness and that involuntary assessment is necessary; and
- has observed the person within 3 days before making the request: s 17, MHA; and
- is not an employee or relative of the person who makes the recommendation for assessment: s 24, MHA; and
- is a different person to the person who makes the request for assessment: s 23, MHA.
The form for requesting an assessment is at: http://www.health.qld.gov.au/mha2000/documents/request_assessment.pdf
Recommendation for assessment
A recommendation for assessment can only be made by a doctor or authorised mental health practitioner (that is, a doctor, registered nurse, occupational therapist, psychologist or social worker appointed by the Director of Mental Health) who:
- has examined the person (including by audiovisual link) within the preceding 3 days: s 19(1), MHA; and
- is satisfied that the assessment criteria apply to the person (s 20(2)), MHA; and
- is not a relative of the person: s 19(2), MHA; and
- is a different person to the person who makes the request for assessment: s 23, MHA.
A recommendation for assessment must:
- be in the approved form;
- state the facts on which it is based; and
- distinguish between the facts known because of personal observations and facts communicated by others: s 20(1), MHA.
What are the assessment criteria?
The assessment criteria for a person are all of the following, based on available information-
(a) the person appears to have a mental illness;(b) the person requires immediate assessment;(c) the assessment can properly be made at an authorised mental health service;(d) there is a risk that the person may-
(i) cause harm to himself or herself or someone else; or(ii) suffer serious mental or physical deterioration; and
(e) there is no less restrictive way of ensuring the person is assessed; (f) for involuntary assessments - the person lacks capacity to consent to being assessed or has unreasonably refused to be assessed: s 13(1) and (2), MHA.
Only the person's own consent is relevant for the purpose of the last criteria. Therefore, an appointed guardian cannot give consent on the person's behalf: s 13(3), MHA.
Mental illness is defined in section 12 of the MHA.
How long are assessment documents in force?
A request for assessment and a recommendation for assessment must be made within 7 days of each other: s 22, MHA.
A request for assessment remains in force only while the recommendation for assessment is in force: s 22(2), MHA.
A recommendation for assessment remains in force for 7 days after it is made: s 21, MHA.
What is the effect of assessment documents?
If assessment documents are in force for a person, then a health practitioner or ambulance officer has the power to take the person to an authorised mental health service for assessment: s 25(1), MHA.
The person may then be detained at the authorised mental health service for an assessment period of up to 24 hours: s 44, MHA. The assessment period starts (this should be written on the assessment documents):
- if the person is not currently a patient - when the person is received at the health service for the assessment and the assessment documents are produced to a health service employee;
- if the person is already a patient - when the assessment documents are produced to a health practitioner at the health service or are made by the health practitioner at the health service: s 44, MHA.
Once the assessment period starts, the person is then known as an involuntary patient: s 44(4), MHA.
The assessment period can be extended by an authorised doctor by written declaration from time to time for up to 24 hours. However, a person must not be detained for assessment for more than 72 hours: s 47, MHA.
As soon as practicable after the person becomes an involuntary patient, an authorised doctor for the authorised mental health service must assess the patient to decide whether the patient should be placed under an involuntary treatment order (ITO): s 46, MHA.
If an ITO has not been made by the end of the assessment period, then the patient ceases to be an involuntary patient and the doctor must tell the patient of this fact: s 48(1), MHA. The patient can continue as a patient of the service voluntarily, or is entitled to be returned to the place from where they were taken or to another place if reasonable: s 48(2)-(4), MHA.
Power to take a person to a mental health service
Health practitioners and ambulance officers empowered by assessment documents to take a person to an authorised mental health service:
- may exercise this power with the help, and using the force, that is reasonable in the circumstances: s 25(2)(a), MHA; and
- may enter a place if the occupier consents to the entry, the place is open to the public, or the entry is authorised by a warrant for apprehension of the patient given by a magistrate under sections 512 to 513 of the MHA: s 511, MHA.
Police are not automatically involved in the process, but must assist as soon as reasonably practicable if requested by a health practitioner or ambulance officer (a public official): s 25(3), MHA.
If asked by a public official, then the police officer may help the public official to perform their functions: s 16, Police Powers and Responsibilities Act 2000 (Qld). In doing so, the police officer has the same powers and protections as the public official under the MHA.
In addition, police officers have the right to enter a place to prevent an offence, injury or domestic violence: s 609, Police Powers and Responsibilities Act 2000 (Qld).
What are my rights if I am subject to assessment documents?
Taking you to hospital
If a health practitioner or ambulance officer (or police officer at their request) attempts to take you to an authorised mental health service for assessment, they must, to the extent that it is reasonable and practicable in the circumstances-
- Tell you that assessment documents are in force for you: s 25(5)(a), MHA; and
- Explain to you in general terms the nature and effect of the assessment documents: s 25(5)(b), MHA; and
- Identify themselves and anyone helping them to you, for example by producing their identity card for your inspection or having their identity card on display so it is clearly visible to you: s 542, MHA.
However, failure to comply with these requirements does not invalidate the exercise of their power to take you to an authorised mental health service.
A health practitioner or ambulance officer may only enter your place if you give consent or if they have a warrant for your apprehension issued by a magistrate. If you refuse consent, then they may call the police to assist who have an additional right of entry under the Police Powers and Responsibilities Act 2000 (Qld) if they reasonably suspect that there is an imminent risk of personal injury or property damage, or if domestic violence has occurred.
Medication may be administered while you are being taken to an authorised mental health service only if:
- A doctor is satisfied it is necessary to ensure your safety or the safety of others; and
- It is administered by a doctor or a registered nurse under the instruction of a doctor: s 26(2), MHA.
At the hospital
On becoming an involuntary patient, you have the right:
- to choose an allied person as your formal support person: ss 339-343, MHA;
- to be given a copy of the statement of rights for involuntary patients: s 345, MHA;
- to receive visits from your own health practitioner or legal adviser at any reasonable time;
- to be told about your assessment by the administrator of the service, who must also tell your allied person, your parent or guardian (if you are under 18 years old) and any personal attorneys or guardians: s 45, MHA.
A person responsible for your assessment, examination, detention or treatment must not ill treat you. To ill treat includes to wilfully neglect or molest: s 518, MHA.
The doctor must tell you when you cease to be an involuntary patient and, if you wish, make arrangements for you to be returned to the place from where they were taken or to another place if that is reasonable: s 48, MHA.
For more information about patient rights see http://www.health.qld.gov.au/mha2000/documents/factsheet7.pdf a factsheet of Queensland Health.
Accessing information about your involuntary assessment
The Information Privacy Act 2009 (Qld) gives you the right to access your own personal information held by government, unless, on balance it would be contrary to the public interest to release the information. Applications under the Information Privacy Act 2009 (Qld) are free, however, there may be access charges, for example, photocopying charges.
Before making a formal application, you should first contact Queensland Health and make a request for the information. The relevant contact details are:
Administrative Law Team, Legal UnitQueensland HealthGPO Box 48Brisbane QLD 4001Tel: (07) 323 41735Email: RTI-Privacy@health.qld.gov.au
If this is unsuccessful, then you can make a formal access application. See https://www.smartservice.qld.gov.au/services/information-requests/home.action to apply online or to download an application form.
The processing period is generally 25 days from the date the application is received.
An access application may be refused for a number of reasons including if the document relates to the applicant's health care information and its disclosure might be prejudicial to their physical or mental health or wellbeing: see s 67, Information Privacy Act 2009 (Qld), and s 47 of the Right to Information Act 2009 (Qld).
Alternatively, the documents may be released to you but with information about other individuals "blacked out" in order to protect their privacy.
If an application is refused, then in certain circumstances you may be able to apply for review of that decision. See http://www.rti.qld.gov.au/access/reviews_of_access_or_amendment_decisions.asp for more information.
Guardians and attorneys who have power for a health matter for an adult have certain rights to information about the adult from their health provider. See s 76 of the Guardianship and Administration Act 2000 (Qld).
What can I do if I am being involuntarily assessed?
If assessment documents have been properly made and are in force, then you can be lawfully taken to an authorised mental health service for an assessment.
The following are some tips in dealing with an involuntary assessment:
| DO | DON’T |
| · Contact your regular doctor, if you have one. They may be able to forward your medical records or vouch that you are of good physical and mental health | · Be argumentative or resist the assessment. You can make your views known that you are confident you are well but you should also make it clear that you are happy to cooperate in any way possible |
| · Volunteer the contact details of individuals who know you well and can support you. You could ask to speak to a family member, friend or allied person and have them present. | · Interrupt or constantly question the process. The assessment may be completed more quickly if you save your questions or queries until the end. |
| · Remain calm, cooperate and answer all questions to the best of your ability. If you don’t understand a question, ask for clarification. This will show you are engaged and are trying to cooperate. | · Get upset, angry, or frustrated. You can communicate that you are nervous and find the situation upsetting, but try to remain calm and complete the assessment cooperatively. |
| · Take notes on the assessment. This way, you can cooperate, organise your thoughts and raise any issues with the assessment later. You will also have a record of the assessment if you have a problem with the ultimate outcome. | · Rush through the assessment. Take your time and do your best. This will show that your engagement, interest and intelligence. |
Contact us
Please contact QPILCH by:
E: services@qpilch.org.auT: 07 3846 6317F: 07 3846 6311P: QPILCH, PO Box 3631, South Brisbane BC, Qld 4101
This factsheet is for general information purposes only. Independent legal advice should be sought for thorough advice on this area.
The Queensland Public Interest Law Clearing House Incorporated (QPILCH) is an independent, not-for-profit community based legal service that coordinates the provision of pro bono legal services for individuals and community groups. QPILCH also provides direct services for disadvantaged and marginalised Queenslanders.
QPILCH gratefully acknowleges the funding provided by the Department of Justice and Attorney-General and the Law Foundation Queensland.
Last updated: 26 October 2009.