Breaches of Community Treatment Orders
Mental health facilities have certain powers to enforce CTOs and to deal with breaches by the affected person. A breach occurs when a person fails to comply with one of the obligations in the approved treatment plan. There are a number of steps to the breach process. It can end with the affected person being readmitted to a hospital based mental health facility as a detained person.
A technical breach of a CTO does not automatically result in breach proceedings. The process commences and continues at the discretion of the treating mental health facility.
The steps set out in the Act following a CTO breach are as follows:
1. If the affected person refuses or fails to comply with the order, the mental health facility should take all reasonable steps to implement the order and inform the affected person that he or she is not complying with the conditions of the order, and remind the person of the possible consequences.
2. If the person still does not comply with the order, the Director of the mental health facility needs to decide if there is significant risk of deterioration of the person’s mental or physical condition.
3. If the Director considers that there is a significant risk of deterioration of the person, the Director must make a written record of the facts on which that opinion is based and the reasons for forming it, and also include facts and reasons about the affected person’s failure to comply, and the steps that have been taken to implement the order.
4. The Director must cause the affected person to be informed that if he or she still refuses to comply with the CTO, the person will be taken to the declared mental health facility or another appropriate mental health facility and treated there.
5. If the affected person still fails to comply, the Director of the mental health facility may organise a written notice (a breach notice) to be given to the person requiring him or her to accompany a member of staff of the NSW Health Service for treatment, and warning him or her that the assistance of a police officer may be obtained to ensure the person obeys the notice. If it is not reasonably practicable to hand the notice directly to the person, the notice is to be posted to the person’s last known address.
6. If the affected person still fails to comply, the Director may issue an order (a breach order) in writing that the person is to be taken to a specified mental health facility. Police assistance can be arranged if required.
A person who is at a mental health facility as a result of a breach notice or a breach order:
- may be given treatment in accordance with the CTO; and
- may be assessed by a medical practitioner for involuntary admission;
- may be released if treatment is accepted, or may be dealt with at the mental health facility or taken to another mental health facility if treatment is refused.
A person who is at a mental health facility after a breach order is to be reviewed by an authorised medical officer within 12 hours to determine if the affected person is a mentally ill or a mentally disordered person. If either determination is made and if no other care of a less restrictive kind is available the person must be detained in the mental health facility.
The affected person may be detained until:
- if mentally ill, the term of the current CTO ends or the person is discharged from the mental health facility;
- if mentally disordered, the maximum period for which he or she can be held as mentally disordered ends, the term of the current CTO ends or the person is discharged from the mental health facility.
NOTE: If the affected person is discharged before the CTO ends, then the CTO continues to have effect.
When will a person admitted under a breach be reviewed?
The status of a person admitted under the breach provisions will be that of a detained person.
An authorised medical officer must cause a detained person to be brought before the Tribunal no later than three months after the person was detained and at least every three months while the person is detained. The authorised medical officer is not required to bring the person for review if at the time of the person’s detention the CTO has less than three months to run.
At a review the Tribunal must decide if the person is a mentally ill or mentally disordered person for whom no care of a less restrictive kind that is consistent with safe and effective care is appropriate or reasonably available. If such a determination is made the Tribunal must determine whether the person should remain in the mental health facility until the end of the CTO or should be detained in the facility as an involuntary patient.
If the Tribunal does not determine that the person is mentally ill, or if less restrictive care is appropriate and reasonably available it must make an order that the person be discharged from the facility and may make a new CTO. The Tribunal may defer the operation of the order for discharge for up to 14 days.
If at the end of the CTO the person is still a mentally ill person and there is no less restrictive form of appropriate care available the authorised medical officer may cause the person to continue to be detained in a mental health facility. If this occurs, the person is taken to be detained in the facility under s19 of the Act. The person must then be examined in accordance with s27 of the Act, and if found to be a mentally ill person following 2 (or 3) assessments becomes an ‘assessable person’ and is to be presented to the Tribunal for a mental health inquiry (see Section 1 of the Tribunal’s Civil Hearing Kit).
A person detained under the breach provisions is able to apply to an authorised medical officer for discharge from the mental health facility and if refused or not dealt with in three working days, has a right to appeal to the Tribunal (s44).