17.0 - Involuntary Assessment of Mentally Ill Persons in the Absence of a Court Order
At common law mentally ill persons enjoy the capacity to determine general health care to the same extent as any other person, and in the absence of informed consent, nobody may administer medical treatment to any person. Thus, at common law persons suffering from a mental illness can and do make their own decisions regarding their movements and their treatment. Accordingly, at common law a person wrongfully detained may apply for a writ of habeas corpus by which a Court requires the person to be brought before it, and for the Court to consider the legality of that detention. However, the Mental Health Act 2000 (Qld) (the Act) authorises the involuntary assessment, detention and treatment of persons upon the satisfaction of certain criteria. Although voluntary patients may consent to and refuse treatment according to their own volition, it is when a person (whether an existing voluntary patient or not) satisfies the requirements for involuntary assessment that clinicians may override their refusal to consent. Herein lays one of the most controversial areas of mental health law.
Decisions regarding the liberty of certain persons under the Act are essentially legal decisions. Those persons who are in a position to make a decision to deprive a person's liberty are therefore accountable on a legal basis. Thus, the treating institution must in all circumstances justify their decision to detain and treat a person involuntarily. As stated, an authorised mental health service may only make such decisions where they believe a person has a mental illness as defined in section 12 of the Act. However, they must also satisfy the statutory criteria outlined below. The objective of the criteria is to provide control measures designed to prevent the occurrence of inappropriate involuntary assessment, detention and treatment. Thus, a person must be subjected to involuntary processes where they do not satisfy each of the statutory criteria.
Assessment Criteria
The purpose of assessing persons against their will is to determine if that person requires treatment according to the statutory treatment criteria as set out under section 14 of the Mental Health Act 2000 (Qld). Under section 13, in order to receive an involuntary assessment, the person generally must:
- Appear to have a mental illness requiring immediate assessment;
- Which can take place at an authorised mental health service;
- Display a risk that the person may cause harm to him or herself, or someone else, or, that the person may suffer serious mental or physical deterioration if not assessed.
It is also important to note that in order to receive involuntary assessment; section 13(2) requires that the person must either lack the capacity to consent to the assessment, or must have unreasonably refused an assessment. Lawyers should note that the phrase ‘unreasonably refused' is not defined in the Act.
Assessment Procedures
Chapter 2 of the Act outlines the procedural requirements to authorise involuntary assessment. In order to assess a person in the absence of their consent there are two documents that the applicants must send to the Administrator of an approved mental health service. This represents a two-step process:
- a request made by an adult who reasonably believes that the person has a mental illness that requires involuntary assessment and who has observed the person within the preceding three days before making the request; followed by
- a recommendation for assessment made by a doctor or authorised mental health practitioner who has examined the person within the preceding three days. The doctor or practitioner must not be a relative of the person. When making their assessment, the doctor or practitioner must be satisfied that all of the assessment criteria outlined above apply to the person.
A recommendation for assessment remains in force for seven days after it is made, and a person may be detained for up to 72 hours for the purposes of that assessment. However, if an authorised doctor has not made an Involuntary Treatment Order for the patient at the end of the assessment period then the patient ceases to be an involuntary patient and may only be assessed further with their consent.
Each document must be made by different persons and must state the facts on which the request and recommendation is made, and, must distinguish between the facts known because of personal observation, and facts communicated by others.
Once the two-step process of request and recommendation are complete, a health practitioner or ambulance officer can take the person to an authorised mental health service for an assessment. It is lawful to engage the assistance of police to this effect where necessary under section 25. Moreover, a doctor may administer medication to affect a lawful process where the doctor believes it necessary to ensure the safety of the person or others under section 26.
At this stage, where the assessment documents are complete, the person becomes an involuntary patient and may be assessed without their consent.
