Monash Health Operational

Victorian Mental Health Act

A person can be examined to determine if an assessment order is required either in hospital or in the community. The doctor or mental health practitioner conducting the examination must explain the reason for it, and tell the person being examined if they will be made subject to an assessment order, and give them a copy of the order and a statement of rights (s. 32).

Criteria for making assessment order (s. 29)

All four criteria must be met before an assessment order can be made. These are that:

  • the person appears to have a mental illness
  • the person requires treatment to prevent serious harm to themselves, serious deterioration in their mental or physical health or serious harm to another person
  • if an order is made, then they can be assessed, and
  • there is no less restrictive means available to assess the person, including if they can be treated as a voluntary patient.
  • Once made, the assessment order allows an authorised psychiatrist to examine the person (compulsorily, if required) to decide if they have a mental illness and require compulsory treatment (s.28).

    Note: there must be less than 24 hours between the examination and the order being made.

    Types of assessment order (ss. 28–38)

    The assessment order can be:

  • a community assessment order, or
  • an inpatient assessment order (if the doctor or health professional is satisfied the person cannot be assessed in the community).
  • If an inpatient assessment order is made, the person must be transported to a designated mental health service within 72 hours, under s. 30.

    Notification and information requirements (s. 32)

    Under s. 32 (1), once an assessment order is made, the examining practitioner must:

  • notify the authorised psychiatrist and provide a copy of the order, and
  • to the extent that is reasonable:
  • inform the person subject to it of the making of the order
  • give the person a statement of rights and copy of the order
  • explain the purpose and effect of the order.
  • Once notified, under s. 32(2) the authorised psychiatrist must ensure reasonable steps are taken to inform the following people (where relevant) that the order is made, and provide a copy of the order and statement of rights – any nominated person, guardian, carer (if variation will directly affect the carer and the care relationship), parent (if under 16) or Secretary of the Department of Human Services, if the person is subject to a custody or guardianship to secretary order.

    Duration of assessment order (s. 34)

    If a person is placed on an inpatient assessment order, there are 72 hours for them to be taken to the inpatient service. Once they are received at the service, the assessment order lasts for a maximum of 24 hours.

    The order may be extended up to twice, to a maximum total of 72 hours, but only if the authorised psychiatrist determines on examination they are not able to decide if the criteria are met.

    If a person is placed on a community assessment order, assessment must be within 24 hours, otherwise the order expires, with the capacity for the authorised psychiatrist to extend that on examination for up to two periods of 24 hours if unable to adequately assess.

    NOTE: Unless there have been delays in transporting a person, or the authorised psychiatrist has been unable to determine whether the treatment criteria apply, assessment orders only last for 24 hours. They may be revoked earlier, immediately upon the authorised psychiatrist being satisfied that the treatment criteria do not apply.

    Treatment on an assessment order (s. 38)

    Under s. 38(2) a person cannot be treated while on an assessment order unless:

  • they give informed consent (see s. 69), or
  • a registered medical professional employed by the mental health service is satisfied that urgent compulsory treatment is necessary to prevent serious deterioration in their mental or physical health or serious harm to themselves or another person.
  • Variation of assessment order (s. 35)

    There may be situations where a person’s condition deteriorates, so the examining practitioner decides the assessment order needs to be varied from a community to an inpatient order (but only if satisfied the assessment cannot occur in the community (s. 35(2)).

    Alternatively, the order can be varied from an inpatient to a community assessment order. The same steps must be taken to notify the authorised psychiatrist and inform the relevant people of the variation (including the person subject to the order) as are required for the making of the order itself.

    Temporary treatment orders

    Under s. 36 a person must be examined by an authorised psychiatrist as soon as practicable after the assessment order is made (and if inpatient, as soon as received at the mental health service). However, prior to being examined (and before each examination), the authorised psychiatrist (to the extent reasonable) must explain to the person the purpose of the assessment.

    If that authorised psychiatrist is satisfied that the person meets all of the treatment criteria, that person can be made subject to a temporary treatment order.

    NOTE: the authorised psychiatrist making temporary treatment order for a person must not have made that person’s assessment order.

    Considerations for making a temporary treatment order (s. 46)

    The authorised psychiatrist must consider a number of factors in determining whether the treatment criteria apply, including views and preferences of the person being examined and others. Particular attention should be made to the new treatment criteria, which are different from those in the previous Mental Health Act.

    Each of the treatment criteria (s. 5)

    Has the authorised psychiatrist decided that the person meets all of the following treatment criteria:

  • the person has a mental illness
  • because the person has a mental illness, the person needs immediate treatment to prevent:
  • serious deterioration in the person's mental or physical health, or
  • serious harm to the person or to another person
  • the immediate treatment will be provided to the person if the person is subject to a temporary treatment order (or treatment order – where considered by the Mental Health Tribunal), and
  • there is no less restrictive means reasonably available to enable the person to receive the immediate treatment.
  • The views and preferences of the person being assessed, and other specified people

    Under s. 46(2), in deciding whether the criteria apply, the authorised psychiatrist, to the extent that is reasonable in the circumstances, must have regard to all of the following:

  • the person's views and preferences about treatment of his or her mental illness and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve
  • the views and preferences of the person expressed in his or her advance statement
  • the views of the person's nominated person
  • the views of a guardian of the person
  • the views of a person’s carer, if the authorised psychiatrist is satisfied that making a temporary treatment order will directly affect the carer and the care relationship
  • the views of a parent of the person, if the person is under the age of 16 years, and
  • the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order.
  • Source: www.legalaid.vic.gov.au
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