Involuntary Patient Orders

Involuntary Patient Orders

Section  34 - 49 Mental Health Act 2007

A person’s involuntary stay in a mental health facility may be extended by way of an involuntary patient order.

When it hears an application for these orders, the Tribunal must decide if the person is a ‘mentally ill person’. The Tribunal must consider whether the person is: 

  • suffering from a mental illness (as defined by the Act); and 
  • at risk of serious harm to themselves or others. 

The Tribunal will: 

  • take into account the person’s continuing condition, including any likely deterioration; and 
  • consider whether care of a less restrictive kind is appropriate and reasonably available to the person.

What is Mental Illness?

A condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence of any one or more of the following symptoms: 

  • Delusions 
  • Hallucinations 
  • Serious disorder of thought form 
  • Severe disturbance of mood 
  • Sustained or repeated irrational behaviour indicating the presence of one or more of the above.

What is Serious Harm?

Serious harm is not defined in the Act. However, it is interpreted to include: 

  • Physical harm 
  • Financial harm 
  • Harm to reputation or relationships 
  • Neglect of self 
  • Neglect of others (including children).

The risk of harm must be related to the person’s mental illness.

What is Continuing Condition? (s14(2) MHA 2007)

In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.

What is an Involuntary Patient order?

This is a legal order that authorises the detention of a ‘mentally ill person’ in a mental health facility. The first Involuntary Patient order is made by a magistrate (s35) at a mental health inquiry and can be made for a period of up to 3 months.

If the mental health facility wishes to extend a person’s involuntary stay beyond the initial period set by the magistrate, then the mental health facility must apply to the Tribunal for a further Involuntary Patient Order before the first order expires (s37).

If a further order is made by the Tribunal, the patient continues to be detained as an Involuntary Patient until he or she is well and no longer qualifies as a ‘mentally ill person’. However, the Tribunal must review each Involuntary Patient at least every three months for the first 12 months the person is an involuntary patient and, thereafter at least once every 6 months or, if considered appropriate, at intervals of up to 12 months.

If the Tribunal decides that a person is not a ‘mentally ill person’, or decides that care of a less restrictive kind is appropriate and reasonably available to the person, then the patient must be discharged from the mental health facility.

If the Tribunal decides that the patient is a ‘mentally ill person’ and that no other care of a less restrictive kind is appropriate and reasonably available to the person, he or she must be detained.  In any other case where the patient is a mentally ill person the Tribunal must make an order for discharge and may make a community treatment order.  The Tribunal may defer the operation of an order for discharge for up to 14 days, if of the view that this is in the best interests of the patient.

Who can apply to be discharged?

An involuntary patient or a person who is detained in a mental health facility may apply to an Authorised Medical Officer to be discharged (s42).  This includes an involuntary patient or an assessable person (a patient who has not yet had a mental health inquiry), a patient detained on a Tribunal’s adjournment, a patient admitted as a mentally disordered person, a person detained on a breach of a Community Treatment Order or subject to an order for deferred discharge.  

 Any designated carer or principal care provider may also apply to the authorised medical officer requesting that the patient be discharged (s43).  The patient may be discharged if the designated carer(s) or principal care provider provides a written undertaking that the patient will be properly taken care of and the authorised medical officer is satisfied that adequate measures are in place to prevent the patient causing harm to himself or herself or others.

 An involuntary patient or detained person may also appoint another person to apply for discharge from the mental health facility.

How to apply for discharge?

The application for discharge can be made to an Authorised Medical Officer either orally or in writing.  Staff at the mental health facility should give the patient, designated carer, or principal care provider or other person appointed by the patient an appropriate form on which to apply in writing.  If the request is made orally, then it should be recorded in the patient’s file.

 Once the request for discharge has been made, the Authorised Medical Officer has three working days in which to respond.  The Authorised Medical Officer may discharge the patient (s42 (2)) or refuse the application for discharge.  The request and response should be noted in the patient’s file.

When may a patient or a designated carer or principal care provider appeal against the Authorised Medical Officer’s decision?

If the Authorised Medical Officer refuses to discharge the patient, or fails to determine the application for discharge within three working days, the patient, designated carer or principal care provider may appeal to the Mental Health Review Tribunal.

This appeal may be made either orally or in writing to the Tribunal, however patients and others are encouraged to complete an appeal form (see Attachments 1 and 2 — Appeal forms).  The completed form can then be served on the Authorised Medical Officer or faxed to the Tribunal on 9817 4543.

If an appeal is made, the Authorised Medical Officer must provide a report to the Tribunal explaining the reasons for the refusal to discharge, or the failure to determine the request for discharge (s44 (3)).

The 3 step process for an appeal:

1. An application for discharge is made by the patient, their designated carer (s) or principal care provider, or other person appointed by the patient;

2. The application for discharge is considered by an Authorised Medical Officer, the decision explained to the patient, the designated carer(s) or principal care provider or other person appointed by the patient (if appropriate) and noted in the patients file;

3. The patient, the designated carer(s) or principal care provider, or other person appointed by the patient  then decides if they wish to appeal, and if so lodges an appeal with the Tribunal.

NOTE: An appeal cannot be lodged until after the Authorised Medcial Officer has considered the application for discharge OR 3 working days has elapsed.

The Authorised Medical Officer must provide the Tribunal with a report about the patient, including the reasons for refusing to discharge the patient or failing to determine the application.

What happens when the Tribunal receives notice of an appeal?

The Tribunal will confirm with the mental health facility that the patient or their primary carer has applied to be discharged, and that the application has been refused or not determined in three working days. A hearing will be booked as soon as practicable. It is preferable to have a face-to-face hearing. However, if this is not possible, the Tribunal will arrange a video or telephone hearing.

In cases where the patient has not yet been presented for a mental health inquiry the appeal will usually be listed with the mental health inquiry and heard by a single legal member of the Tribunal.  The member may, in appropriate cases, refer both matters to a three member panel.

What legal issues will the Tribunal address at the hearing?

When it hears the appeal, the Tribunal will consider the evidence as to whether the patient is a ’mentally ill person’. In doing this, the Tribunal must consider whether the person is: 

  • suffering from a mental illness (as defined by the Act); and 
  • at risk of serious harm to themselves or others. 

The Tribunal will: 

  •  take into account the person’s continuing condition, including any likely deterioration; and
  • consider whether care of a less restrictive kind is appropriate and reasonably available to the person.

What may the Tribunal decide? 

At the hearing the Tribunal may: 

  • discharge the patient;
  • defer the discharge for up to 14 days if it is in the patient’s best interest;
  • dismiss the appeal (this means that the order detaining the patient remains in force);
  • reclassify the patient as a voluntary patient;
  • consider an application for a community treatment order, or
  • adjourn the hearing (s155). 

Is there any limit on the number of times a patient can appeal to be discharged? 

There is no limit on the number of times an Involuntary Patient may request discharge. However, at an appeal hearing, the Tribunal may decide that no further right of appeal may be exercised before the next scheduled review by the Tribunal (s44(5)).

Civil Hearing Kit

For further information please select the following link to the relevant section of the Tribunal’s Civil Hearing Kit: