Introduction

A fact sheet on the application and management of involuntary treatment orders (ITOs) under the Mental Health Act 2000 (Qld) (MHA). This factsheet does not relate to forensic orders: that is, the involuntary treatment of patients who have been charged with a criminal offence.

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 ITO?

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

Who can make an ITO?

An ITO may be made by an authorised doctor.

An authorised doctor is a doctor who has been appointed as such by the administrator of an authorised mental health service: Schedule 2, MHA.   A psychiatrist who is an authorised doctor is an authorised psychiatrist.

The person making the ITO cannot be the same person who made the recommendation for assessment (see Involuntary Assessment): s 108, MHA.

How is an ITO made?

Following an involuntary assessment, an authorised doctor may make an ITO if they are satisfied that the treatment criteria apply to the patient: s 108, MHA.

The treatment criteria for a person are all of the following:

(a) The person has a mental illness;
(b) The person's illness requires immediate treatment;
(c) The proposed treatment is available at an authorised mental health service;
(d) Because of the person's illness:

(i) There is an imminent risk that the person will harm himself, herself or another person or
(ii) the person is likely to suffer serious mental or physical deterioration;

(e) There is no less restrictive way of treating the person; and
(f) The person lacks the capacity to consent the treatment, or has unreasonably refused treatment: s 14(1), 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 14(2), MHA. 

An ITO must be in the approved form, state the time it was made, the basis upon which the doctor is satisfied that the treatment criteria apply to the patient and the authorised mental health service responsible for ensuring the person receives treatment: s 108(3), MHA.

Second Examination

If an ITO was made by an authorised doctor who is not a psychiatrist, or if the ITO was made solely on an assessment carried out using audiovisual link facilities, the ITO must be confirmed by an authorised psychiatrist following a "second examination". (This should not be confused with the preliminary examination carried out by a doctor following the issue of a Justices Examination Order (JEO) or an Emergency Examination Order (EEO).)

If the original assessment was carried out by a psychiatrist using audiovisual link facilities only, then the second examination may be carried out by the same psychiatrist.

The process is:

• within 72 hours of the ITO being made, the patient must be examined by an authorised psychiatrist;
• the examination may only be carried out using audiovisual link facilities if the original assessment was carried out in person;
• the psychiatrist must revoke the order if they are satisfied that the treatment criteria do not apply to the patient;
• the psychiatrist must confirm the order if they are satisfied that the treatment criteria do apply to the patient;
• a revocation or confirmation must be endorsed on the order; and
• if the order is not confirmed or revoked within 72 hours:
  • The patient ceases to be an involuntary patient, and
  • The authorised doctor must inform the patient of this: s 112, MHA.  

How long is an ITO in force?

An ITO made by an authorised doctor which is not confirmed by a psychiatrist within 72 hours ends at that time: s 112(8), MHA.

Otherwise, an ITO remains in force until it is either revoked by the authorised doctor or the Director of Mental Health, or upon a review by the Mental Health Review Tribunal or appeal of that decision: s 118(1), MHA.

If an authorised doctor for the patient's treating health service is satisfied that the treatment criteria no longer apply, he or she must revoke the ITO for the patient: s 121, MHA. Similarly, the Tribunal must revoke the ITO if any of the treatment criteria are not satisfied.

An order ends if the patient does not receive treatment under the order for 6 months: s 118, MHA.

What is the effect of an ITO?

There are two categories of ITO. These are:

(a) In-patient - where the patient needs to be treated as an in-patient of an authorised mental health service; or
(b) Community - where the patient receives treatment while living in the community. The patient is receiving community treatment: s 109, MHA.

If a person is classified as an in-patient, the patient may be detained in the patient's treating health service: s 114, MHA.  An in-patient may be granted limited community treatment. The terms of this limited community treatment are set out in the patient's treatment plan: ss 128-132, MHA.

A patient's category must be changed by an authorised doctor if:

•  he or she is satisfied that it is necessary for the patient's needs, or
•  if it is necessary to give effect to an order of the Tribunal: s 119, MHA.

What if I don't comply with an ITO?

Community ITO patients who do not comply with their treatment plans:

• must first be warned by their doctor about their non-compliance and the consequences of further non-compliance;
• if they again fail to comply with the treatment plan - may be given written notice to attend a mental health service for treatment: and
• if they fail to comply with the written notice - may be taken against their will to the health service for treatment and be detained until they have received treatment: s 117, MHA.

Power to take a patient to a mental health service

Health practitioners have the power in certain circumstances to take a patient to a health service against their will, for example, where the patient has not complied with their ITO (s 117(4), MHA) or where the patient's category has changed from community to in-patient (s 119 (5), MHA).

In exercising this power they:

• may have the help and use the force that is reasonable in the circumstances; 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;

The health practitioner may request the help of the police. If asked, a police officer may help the practitioner to perform their functions and has the same powers and protections as the practitioner under the MHA: s 16, Police Powers and Responsibilities Act 2000 (Qld).

What are my rights if I am subject to an ITO?

If a person is required under the MHA to do something and no time frame is given, then the provision must be complied with as soon as practicable: s 537, MHA. For example, a person may be required to prepare a document, or give a document to someone else, or to talk to or tell someone about something.

At the time the order is made

You have the right to:

• be told by your authorised doctor about the order, its category and the reasons why the order has been imposed: s 110, MHA;
• have a treatment plan prepared for you and have your authorised doctor talk to you about your treatment under the plan: ss 110 and 111, MHA. The contents of a treatment plan are set out at s 124 of the MHA;
• be given written notice of the order within 7 days of the order being made: s 113, MHA.

While receiving treatment

You have the right to:

• be treated as required under your treatment plan: s 115, MHA;
• be regularly assessed by an authorised psychiatrist as required by your treatment plan: s 116, MHA;
• have your ITO reviewed within the first 6 weeks and then every 6 months by the Mental Health Review Tribunal: s 187, MHA;
• apply for review of your ITO to the Mental Health Review Tribunal at any time: s 188, MHA;
• choose an allied person as a formal support person: ss 339-343, MHA;
• be given a copy of the statement of rights for involuntary patients: s 345, MHA;
• receive visits from your own health practitioner or legal adviser at any reasonable time.

A person responsible for a patient's assessment, examination, detention or treatment must not ill-treat the patient. Ill-treatment includes wilful neglect or molestation: s 518, MHA.

For more information about patient rights, see Queensland Health's factsheet at:
http://www.health.qld.gov.au/mha2000/documents/factsheet7.pdf.

If the order is revoked or changed

You have the right:

• if the ITO was not made by a psychiatrist and is not confirmed by a psychiatrist within 72 hours - to be told you are no longer an involuntary patient: s 112(8), MHA;
• if you have not received treatment under the ITO for 6 months - to receive written notice that the order has ended: s 118(3), MHA;
• if the ITO has been revoked - to receive written notice that the order has been revoked within 7 days of the revocation: s 123, MHA;
• if the category of ITO has been changed - to receive written notice of the change within 7 days (s 120, MHA), and to have a discussion with your doctor about the change and the reasons for it, unless it is not reasonably practicable to do so or it is not in the interests of your health or safety or the safety of others: s 119, MHA.

Accessing information about your involuntary treatment

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 Unit
Queensland Health
GPO Box 48
Brisbane   QLD   4001
Tel: (07) 323 41735
Email: 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).

Review of ITOs by the Mental Health Review Tribunal

Reviews of ITOs by the Mental Health Review Tribunal are conducted within the first 6 weeks of the ITO and then every 6 months, or at any time at the Tribunal's own initiative, or upon application by the patient: ss 187 and 188, MHA. The Tribunal is usually made up of 3 members: a lawyer, a psychiatrist and a community member.

Reviews are carried out by way of a hearing. This means the Tribunal hears from the patient, their treating team and any other relevant people. The patient can be represented by a lawyer or their allied person. The patient can also be represented by a non-lawyer, or be accompanied by a support person, if the Tribunal agrees.

At least 7 days before the hearing, the patient's treating psychiatrist should have given a clinical report about the patient to the Tribunal. This report should also be given to the patient or at least the patient should have been told about its contents: s 3, Mental Health Review Tribunal Rule 2009 (Qld).

A patient can make their views known in writing before or at the hearing, or by talking to the Tribunal at the hearing.

At the end of the hearing, the Tribunal must decide whether to confirm or revoke the ITO: s 191, MHA. This will depend on whether the treatment criteria still apply to the patient having regard to:

• the patient's mental state and psychiatric history
• the patient's social circumstances; and
• the patient's response to treatment and willingness to continue treatment.

If the ITO is confirmed, the Tribunal also has the power to order that:

• the category of ITO be changed from community to in-patient or vice versa,
• order that an in-patient receive limited community treatment, or that limited community treatment be discontinued,
• a patient be transferred to another mental health service: s 191, MHA.

The Tribunal will usually tell the patient their decision at the end of the hearing. A written notice will also be posted to the patient within one eek of the hearing. A patient may request reasons for the decision within 7 days after receiving notice of the decision: s 192, MHA.

A decision of the Mental Health Review Tribunal can be appealed to the Mental Health Court within 60 days of receiving notice of the decision: s 192, MHA.

For further information about the Tribunal, please see: http://www.mhrt.qld.gov.au/. 

Contact us

Please contact QPILCH by:

E:    services@qpilch.org.au
T:    07 3846 6317
F:    07 3846 6311
P:    QPILCH, PO Box 3631, South Brisbane BC, Qld 4101