Treatment may include medication, talking with health professionals, and other recovery activities and therapies. Treatment will be recorded in a Treatment and Care Plan which is generally required under the Mental Health Act 2009 (SA).
Can people be treated against their will?
Involuntary treatment can only occur when a medical practitioner or an authorised mental health professional concludes that [s 10(1), s 21(1)]: -
The medical practitioner or authorised mental health professional must also consider, amongst other things, the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis or (in considering inpatient treatment orders) on a community treatment order [s 10(2), s 21(2)].
Can children be treated against their will?
The Act applies to children in the same way as to adults. The only difference is that rights and obligations under the Act for those under the age of 16 years are transferred to their parent or guardian [s 4(1)].
A community treatment order requires a person with a mental illness to cooperate with treatment, including taking any medication for that mental illness even if they do not want to. Only a psychiatrist or authorised medical practitioner can decide what treatment is necessary.
A community treatment order cannot be used to enforce treatment of other illnesses.
There are two levels of Community Treatment Orders.
Level 1 Community Treatment Order: maximum period of 42 days for treatment [s 10(4) Mental Health Act 2009].
This order can be made by a psychiatrist, authorised medical practitioner, medical practitioner or authorised mental health professional [s 10(1) Mental Health Act 2009]. Once a level 1 community treatment order has been made the patient must be examined by a psychiatrist or authorised medical practitioner within 24 hours (or as soon as possible afterwards if not practicable). If the person who made the order was a psychiatrist or authorised medical practitioner the examination must be made by a different psychiatrist or authorised medical practitioner from whomever made the order [s 10(5)].
Upon examination the psychiatrist or authorised medical practitioner may confirm the order if satisfied that grounds for it exist. If not satisfied that there are grounds for the order they must revoke it [s 10(5)]. A review of this decision by the South Australian Civil and Administrative Tribunal (the Tribunal) is no longer required under section 79.
A psychiatrist or authorised medical practitioner who has examined a patient on a level 1 community treatment order may vary or revoke the order at any time [s 10(7)].
Level 2 Community Treatment Order: maximum period of 12 months for treatment (6 months for a child) [s 16(5)]
A Level 2 order is made by the Tribunal [s 16(1) Mental Health Act 2009] and a level 1 order is not a prerequisite for making a level 2 order.
However, if a person is subject to a level 1 order at a time, the level 1 order is automatically revoked when the Tribunal makes the level 2 order [s 16(4a)].
Required review of a level 2 community treatment order
A review of a level 2 community treatment order that has been made in respect of a child and continues to apply to the child 3 months after the making of the order must be conducted by the Tribunal as soon as practicable after the end of the period of 3 months [s 79(1)(b)]. Such a review is taken to come within the Tribunal's original jurisdiction [s 79(5)].
What steps are required when someone is on a Community Treatment Order?
The person who is subject to a level 1 community treatment order must receive a statement of rights [s 12(2)] and a copy of the order [s 12(1)] and any variation or revocation of the order [s 12(5)]. Assistance should be provided for those who have difficulty understanding the information provided including interpreter assistance [s 12(3)]. A guardian, medical agent, relative, carer or friend of the person should also receive this information unless their whereabouts cannot be located or it is considered not to be in the person’s best interests to release this information [s 12(4)].
All people on level 2 orders must have a treatment and care plan developed for them collaboratively with the person and their significant others, where possible, as well as any service provider or agency that is providing care or support to the person [ss 40(1), (2)]. A person who is subject to a treatment order (whether community or inpatient) is entitled to request the involvement of a guardian, medical agent, relative, carer or friend or advocate in significant meetings with treatment centre staff [s 47].
Appealing Community Treatment Orders
A legal representation scheme is provided free of charge to all persons who are subject to an order under appeal [s 84]. The Legal Services Commission administers the scheme. Other parties to an appeal will need to make their own arrangements for legal representation.
Appealing a level 1 community treatment order
All decisions to make level 1 community treatment orders (which are always made by a psychiatrist, authorised medical practitioner, medical practitioner or authorised mental health professional) can be reviewed by application to SACAT under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) [Mental Health Act 2009 (SA) s 81]. A review may be sought at any time while the order is in place [s 81(2)]. For these reviews, the Tribunal must be constituted by at least one medical practitioner and one legal practitioner [s 81(2a)].
See also: Appeals
Appealing a level 2 community treatment order
As level 2 community treatment orders are made by the Tribunal, any decision to make such an order is subject to an internal review by the Tribunal [s 83A(b)].
The Tribunal's decision at a required review of a level 2 community treatment order made in respect of a child and that continues to apply to the child 3 months after the making of the order (see above) is also subject to an internal review [s 83A(b)].
The application for internal review may be made at any time [s 16(7)]. For an internal review in these cases, the Tribunal must not be constituted by a medical practitioner sitting alone [s 83A(e)(i)].
See also: Appeals
Appeals to the Supreme Court
Following internal review a further appeal lies to the Supreme Court [South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71]. The appeal must be made within 14 days after the making of the decision, or after receiving the reasons for the decision, whichever is the later (but the Supreme Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal should be made within 14 days) [Mental Health Act 2009 (SA) s 83A(g)].
An inpatient treatment order authorises the compulsory inpatient treatment of a person with a mental illness in a treatment centre. People who are subject to an inpatient treatment order are required to receive psychiatric treatment, even if they do not want to [ss 24, 28, 31] . They must also stay in the treatment centre unless granted leave of absence or permission to leave with treatment centre staff [s 34]. The person can also be required to receive treatment for any other illness, but only one that is a cause of or is contributing to the mental illness, whether or not they agree to that treatment [ss 24, 28, 31].
There are three levels of inpatient treatment orders.
Level 1 Inpatient Treatment Order: the maximum period of detention is 7 days [s 21(4)].
This order can be initially made by a medical practitioner or authorised mental health professional [s 21].
It must be reviewed within 24 hours by a psychiatrist or authorised medical practitioner (not being one who made the original decision to detain) [s 21(5)].
If this cannot be done, then the review must occur as soon as possible [s 21(5)].
A level 1 inpatient treatment order can be revoked by a psychiatrist or authorised medical practitioner who has examined the patient at any time during the period of the order. Where a psychiatrist or authorised medical practitioner revokes a level 1 inpatient treatment order they may, in substitution, make a level 1 community treatment order [s 21(7)].
Required review of a level 1 inpatient treatment order
The South Australian Civil and Administrative Tribunal (the Tribunal) must automatically review the circumstances involved in the making of a level 1 inpatient treatment order if the order has been made within 7 days after the expiry or revocation of a previous inpatient treatment order applying to the same person. The review must be conducted as soon as practicable after the making of the level 1 inpatient treatment order [s 79(1)(c)]. This review is taken to come within the Tribunal's original jurisdiction [s 79(5)]. As such, there is a further right of internal review of the Tribunal's review decision under Part 5 section 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) [s 83A].
Level 2 Inpatient Treatment Order: the maximum period of detention is 42 days [s 25(6)]
This order can be made by a psychiatrist or authorised medical practitioner before the expiry of a level 1 order [s 25].
A level 2 inpatient treatment order can be revoked by a psychiatrist or authorised medical practitioner at any time during the period of the order [s 25(8)].
Required review of a level 2 inpatient treatment order
Where a decision is made to extend a level 2 inpatient treatment order the Tribunal must automatically review the circumstances involved in the decision as soon as practicable [s 79(1)(ca)]. This review is taken to come within the Tribunal's original jurisdiction [s 79(5)]. As such, there is a further right of internal review of the Tribunal's review decision under Part 5 section 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) [s 83A].
Level 3 Inpatient Treatment Order: the maximum period of detention is 12 months (6 months for a child) [s 29(5)]
This order can only be made by the Tribunal upon application of the Public Advocate or the Director of an Approved Treatment Centre (or his/her nominee) for a person on current level 2 or level 3 orders [s 29].
If a person is subject to a current level 1 or 2 inpatient treatment order, such an order is automatically revoked when the Tribunal makes a level 3 inpatient treatment order [s 29(4a)].
On application the Tribunal can vary or revoke an order while the order is in force [s 29(6)].
Required review of a level 3 inpatient treatment order
The Tribunal must automatically review an order of longer than 3 months for a child under 18 years of age within 3 months after the order was made [s 79(1)(d)]. This review is taken to come within the Tribunal's original jurisdiction [s 79(5)]. As such, there is a further right of internal review of the Tribunal's decision under Part 5 section 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) [s 83A].
What steps are required when someone is detained?
The person who is the subject of an inpatient treatment order must receive a statement of rights and a copy of the order, or variation or revocation of order. Assistance should be provided for those who have difficulty understanding the information provided including interpreter assistance. When a psychiatrist or an authorised medical practitioner makes, revokes or varies an order, a guardian, medical agent, relative, carer or friend of the detained person should also receive this information unless their whereabouts cannot be located or it is considered not to be in the detained person’s best interests to release this information.
Treatment and Care Plans should be developed for all people on level 2 and level 3 orders in collaboration with the person and their significant others [s 41]. A patient can request the involvement of a guardian, medical agent, relative, carer or friend or advocate in significant meetings with treatment centre staff.
Appealing Inpatient Treatment Orders
A legal representation scheme is provided free of charge to all persons who are subject to an order under review or appeal [s 84]. The Legal Services Commission administers the scheme. Other parties to an appeal will need to make their own arrangements for legal representation.
Appealing a level 1 or level 2 inpatient treatment order
All decisions to make level 1 or level 2 inpatient treatment orders can be reviewed by application to the Tribunal [s 81]. A review may be sought at any time while the order is in place [s 81(2)]. For these reviews, the Tribunal must be constituted by at least one medical practitioner and one legal practitioner [s 81(2a)].
Appealing a level 3 inpatient treatment order
As level 3 inpatient treatment orders are made by the Tribunal, any decision to make such an order is subject to an internal review by the Tribunal [s 83A(b)]. For an internal review in these cases the Tribunal must not be constituted by a medical practitioner sitting alone [s 83A(e)(i)].
Appealing a required review of an inpatient treatment order
The decision of the Tribunal on a required review (see required reviews above) is subject to further internal review [ss 79(5) and 83A].
An application for internal review must be made within one month of the the Tribunal's decision [South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70(2)].
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