The definition, assessment and treatment of mental illness in Queensland is governed by the Mental Health Act (2000). Each state has separate legislation, and in some states there are legal provisions which are not available in Queensland.

For example, in NSW there is a provision for “Mentally disordered”, which allows for the detention of an individual whose behaviour is dangerous to self or others for reasons other than mental illness, including intoxication or a brain injury. Check with your local mental health or brain injury association, a lawyer or the Justice Department of your state government for more information if you live outside of Queensland. The web addresses for each state or territory’s Mental Health Tribunal are given at the end of this article.

Queensland Parliament passed the Mental Health Act 2000 (the Act) on 30 May 2000, which replaces the Mental Health Act 1974. The Act contains provisions for initiating involuntary assessment, authorising involuntary treatment, independent review of involuntary treatment and patient rights. It provides processes for admission of mentally ill offenders from court or custody and decisions about criminal responsibility where the person has a mental illness or intellectual disability. It also introduces notification orders and non-contact provisions for persons such as family members and victims of crime, as well as other provisions addressing community safety.

What is the purpose of the Mental Health Act?

The Mental Health Act 2000 provides for the involuntary assessment and treatment, and the protection, of persons having a mental illness while at the same time safeguarding their rights. The Act focuses on the aspects of mental illness that cannot be dealt with in other mainstream legislation. The Mental Health Act does not specifically provide for voluntary treatment of mental illness. Voluntary treatment for mental illness should be regarded in the same way as treatment for any other illness, with the protection of rights in other mainstream legislation. The Act also provides for the determination of a person’s mental state when they have a mental illness and have been charged with a criminal offence, as well as their detention in a mental health service if necessary.

In Section 12 of the Act, mental illness is defined as “A condition characterised by a clinically significant disturbance of thought, mood, perception or memory". The decision must be made in accordance with internationally accepted medical standards.

The new Act also provides eleven exclusions from the definition. These exclusions are behaviours, conditions or circumstances that cannot, on their own, be considered mental illness. For example a person’s race, existing drug usage or an intellectual disability, previous treatment for mental illness or antisocial or Illegal behaviour. However, the Act also states that these exclusions do not exclude that person from also having a mental illness, and gives as an example a mental illness being caused by drug and alcohol use, or a mental illness in a person who has an intellectual disability.

Importantly, the final part of Section 12 states that diagnosis of a mental illness must be made in accordance with internationally accepted medical standards. Although the Act does not exclude organic injury to the brain from being a mental illness, internationally accepted medical standards do.

How is the involuntary assessment process started?

Two assessment documents, a Request for assessment and a Recommendation for assessment, must be made before a person can be assessed without their consent. A Request for assessment can be made by any Adult who, having seen the person within the last 3 days, believes the person has a mental illness of a nature or to an extent that involuntary assessment is necessary.

A Recommendation for assessment can be made by any doctor or an authorised mental health practitioner who has examined the person in the last 3 days. The doctor or authorised mental health practitioner must be satisfied that all of the assessment criteria apply. The recommendation is effective for 7 days.

A health practitioner or an ambulance officer can take the person to an authorised mental health service for assessment. Police are not automatically involved in this process but their assistance must be provided if requested.

An Emergency examination order can be made by a police officer, ambulance officer or a psychiatrist when strict criteria are met (sections 33 & 37 of the Act). An emergency examination order authorises a person to be taken to an authorised mental health service and be detained for up to 6 hours to determine if the assessment documents can be made (by a doctor or authorised mental health practitioner). If the assessment documents are not made, arrangements must be made for the person to be returned to where they were taken from, or to a place the person reasonably asks to be taken.

Once the assessment documents have been completed the person may be detained at the authorised mental health service (AMHS) for up to 24 hours. This can be further extended by an authorised doctor for further periods of up to 24 hours each, but the maximum period for assessment is 72 hours. The time is calculated from the time the patient is accepted on arrival at the AMHS.

An involuntary treatment order authorises involuntary treatment for mental illness. An involuntary treatment order can be made if an authorised doctor is satisfied that all the criteria for involuntary treatment apply (see below). Although set out in a similar way to the assessment criteria, a stricter test must be met to authorise involuntary treatment.

In all cases involuntary treatment must be authorised or confirmed by a psychiatrist. If the involuntary treatment order is initially made by an authorised doctor who is not a psychiatrist, the involuntary treatment order must be confirmed by an authorised psychiatrist within 72 hours.

Treatment Criteria (section 14)

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

What these criteria mean is that not only is a diagnosis of a mental illness required in order for treatment to be authorised, but that treatment must also be necessary to prevent possible risk of harm to the individual or to the community and is the only option to do so, and that the person either can’t consent or refuses to do so.

In practical terms, the involuntary treatment order can be viewed as a public safety issue. In order to protect the community, the rights of the individual are temporarily suspended in this one area – consent to medical treatment.

Can a person receive community-based treatment?

It is not necessary for a patient to be detained in a locked facility in order for an involuntary treatment order to be in place.

On making an involuntary treatment order, an authorised doctor must specify the category of the order: in-patient or community. This decision is based on whether or not the person needs in-patient treatment, for example due to an immediate risk of violent behaviour or a refusal to comply with the treatment order. The community category provides for the involuntary treatment of a person living in the community, making it possible for the patient to continue with normal routines but be required by law to attend an AMHS at regular intervals.

What is the effect of an involuntary treatment order?

Under an involuntary treatment order, a person can be treated for mental illness without consent in a variety of settings. However, as a safeguard, an in-patient or community facility of an authorised mental health service is the only place where force can be used to give involuntary treatment.

For how long is an involuntary treatment order in force?

An involuntary treatment order does not need to be renewed. However, an authorised doctor, the Director of Mental Health or the Mental Health Review Tribunal can revoke an involuntary treatment order at any time. Regular reviews are conducted by the psychiatrist as outlined in the treatment plan. The Mental Health Review Tribunal reviews all involuntary orders within 6 weeks of that order being made and then after ever 6 months. An application for a review can also be made to the Tribunal at any time.

The Mental Health Act 2000 contains a system for deciding criminal responsibility where a person has a mental illness or an intellectual disability. It also provides for the detention, involuntary treatment and review of mentally ill offenders. The Act ensures that decisions balance the patient’s right to treatment and the community’s right to safety.

Further information

Other state and territory Mental Health Review Tribunals: