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Temporary treatment order queries

Information for legal help staff about temporary treatment orders and the role of the Mental Health Review Tribunal.

Once you have been examined under the assessment order, the authorised psychiatrist will put you on an inpatient temporary treatment order if they are satisfied that:

  • you meet the four treatment criteria, and
  • that you need to be detained in an inpatient unit in a hospital to receive treatment.

See sections 180, 181, 182—Mental Health and Wellbeing Act 2022 (Vic).

Treatment criteria

The temporary treatment order can only be made if you meet the following 4 criteria:

  • you have a mental illness, and
  • because you have a mental illness you need immediate treatment to prevent:
    • serious deterioration in your mental or physical health, or
    • serious harm to you or to another person, and
  • the immediate treatment will be provided to you if you are made subject to a temporary treatment order (or treatment order), and
  • there is no less restrictive means reasonably available to allow you to receive the immediate treatment (such as a voluntary patient).

See s. 143—Mental Health and Wellbeing Act 2022 (Vic).

What the psychiatrist must consider

In deciding whether the treatment criteria are met, under s 46(2) the authorised psychiatrist must consider:

  • your views and preferences about treatment
  • your reasons for those views and preferences, including any recovery outcomes that you want to achieve
  • the views of:
    • your nominated support person
    • your guardian
    • your carer (if the order will directly affect the carer and care relationship)
    • your parent (if you are aged under 16)
    • the Secretary of the Department of Health and Human Services (if you are a young person on a custody or guardianship to Secretary order).

See s. 180(2)—Mental Health and Wellbeing Act 2022 (Vic).

Compulsory treatment

If you are on a temporary treatment order, you can be given treatment against your will.

Leave

The psychiatrist has the power to grant you leave while you are a compulsory inpatient. Speak to your psychiatrist about this.

See s. 212—Mental Health and Wellbeing Act 2022 (Vic)

Length of the order

An inpatient temporary treatment order operates for a maximum of 28 days unless revoked (cancelled) earlier and will expire 28 days after it is made (s. 183) unless:

  • the Mental Health Tribunal (MHT) makes a treatment order
  • another order (such as a security order) is made, or
  • the authorised psychiatrist applies to the MHT for a treatment order, within 10 business days of the order expiring.

See s.183 Mental Health and Wellbeing Act 2022 (Vic) and Part 4.6 (Variation and revocation of temporary treatment orders and treatment orders)

Treatment Order hearings

If you remain on a Temporary Treatment Order then, before the Temporary Treatment Order expires, the MHT must conduct a hearing to determine whether to make a treatment order. (s 189).

The MHT can make a Treatment Order only after a hearing, and only if you meet all of the treatment criteria, namely:

  • you have a mental illness, and
  • because you have a mental illness you need immediate treatment to prevent:
    • serious deterioration in your mental or physical health, or
    • serious harm to you or to another person, and
  • the immediate treatment will be provided to you if you are made subject to a temporary treatment order (or treatment order), and
  • there is no less restrictive means reasonably available to allow you to receive the immediate treatment (such as a voluntary patient).

See sections 143 and 192 Mental Health and Wellbeing Act 2022 (Vic)

These criteria are the same as the criteria for a temporary treatment order.

Considerations for making a treatment order

The considerations that the MHT must have regard to when deciding whether to make a treatment order include:

  • your views and preferences and those of others supporting or responsible for you, and
  • whether you meet treatment criteria.

See s 192 Mental Health and Wellbeing Act 2022 (Vic).

The MHT must also decide:

  • the duration of the order—up to 6 months for an inpatient treatment order, up to 12 months for a community treatment order and up to 3 months for any treatment for a young person) (s 193), and
  • the setting—where compulsory treatment is to be provided (either inpatient or community) (s 194).

See s. 194 —Mental Health and Wellbeing Act 2022 (Vic)

Notification of the hearing

Under the law (and where applicable) the MHT must notify:

  • you
  • the psychiatrist who made the application
  • any person who has applied to be a party to the proceedings that is approved by the MHT. This could include your lawyer
  • your parent, if you are under 16
  • your nominated person
  • your guardian, and
  • your carer.

See s. 371—Mental Health and Wellbeing Act 2022 (Vic)

Who is a carer?

A carer is a person who provides care to another person with whom they are in a care relationship. Care relationship is defined as providing another person care because that person:

  • has a disability, or
  • is older, or
  • has a mental illness,
  • an ongoing medical condition (including dementia).

The definition for a carer under the Mental Health and Wellbeing Act 2022 refers the reader to the definition under the Carers Recognition Act 2012 (CRA).

See ss. 3, 4—Carers Recognition Act 2012 (Vic)(opens in a new window)

Responsibility for treatment

The authorised psychiatrist is responsible for providing treatment during the period of the treatment order. The psychiatrist is also able to vary the setting where treatment is provided, that is from inpatient to treatment in the community (CTO) or from CTO to inpatient.

See sections 200 to 204 —Mental Health and Wellbeing Act 2022 (Vic).

Applying for another treatment order

Before the expiry of the treatment order, the authorised psychiatrist may make an application for a further treatment order if the criteria for compulsory treatment still apply. This application must be heard by the MHT while there is a current treatment order in place. If this is not done, the treatment order will expire.

See section 190—Mental Health and Wellbeing Act 2022 (Vic).

More information

Legislation

Legislation

Mental Health and Wellbeing Act 2022 (Vic)

  • s. 143—what are the treatment criteria
  • s. 180—making of temporary treatment order
  • s. 181—community or inpatient temporary treatment order
  • s. 182—what does a temporary treatment order authorise?
  • s. 183—duration of a treatment order
  • s. 198—information to be given to treatment patient
  • ss. 200 and 201—varying a treatment or temporary treatment order
  • s. 205—revocation and expiry of a treatment or temporary treatment order
  • s. 212—leave of absence with approval
  • s. 192—MHT to decide whether to make a person subject to a treatment order
  • s. 193—how long a treatment order lastss.
  • 196—contents of a treatment order
  • ss. 205-211—revoking a treatment order or temporary treatment order
  • s. 209—revocation of a treatment orderin other circumstances
  • s. 212—grant of leave of absence
  • Chapter 7—Mental Health tribunal

Carers Recognition Act 2012 (Vic)

  • s. 3—defines a carer
  • s. 4—meaning of care relationship

See Carers Recognition Act 2012 (Vic)(opens in a new window)

Updated