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Examinations and assessments

Transcript: Examinations and assessments—Understanding the Mental Health Act 2016

Examinations and assessments

This section provides a brief overview of examinations and assessments and the making of a treatment authority under the Mental Health Act 2016.

An examination of a person may be undertaken in any way that is clinically appropriate and there are no restrictions on where an examination may occur.  An examination may be undertaken using audio-visual technology, if it is considered clinically appropriate in the circumstances.

However, using coercive powers to detain a person for examination can only occur if an "examination authority" or an "emergency examination authority" is in place for the person.

Examination authorities

Examination authorities replace "justices examination orders" under the Mental Health Act 2000.

Examination authorities are made by the Mental Health Review Tribunal on application by an authorised mental health service or a concerned member of the public.

A member of the public can only make an application to the Tribunal after having received clinical advice about the behaviour of the person that has raised concerns about the person's mental health and wellbeing.

Examination authorities are only to be used as a last resort if there are serious concerns about a person's health and wellbeing, and voluntary efforts to examine the person have not succeeded or are not possible.

An examination authority gives a doctor or authorised mental health practitioner, accompanied by a police officer, the power to enter someone's home and detain a person for an examination.

The person may be examined at that place, or transferred to an authorised mental health service for an examination.

Emergency examination authorities

Emergency examination authorities replace "emergency examination orders" under the Mental Health Act 2000.

The emergency examination authority provisions are located in the Public Health Act 2005, not the Mental Health Act 2016.

The provisions apply where an ambulance officer or police officer believes a person is at immediate risk of serious harm, such as threatening to commit suicide, and the risk appears to be the result of a major disturbance in the person's mental capacity.  This could apply due to an illness, disability, an injury, intoxication or any other reason.

In these circumstances, a police officer or ambulance officer may transport the person to a hospital where a person can be detained for six hours for an examination and if necessary, the examination period can be extended another six hours to a total of 12 hours.

A person brought into a hospital under an emergency examination authority needs to be examined to determine the basis of the person's condition.  There is no presumption that the person has an underlying mental illness.  It is possible, however, that during an examination a doctor or authorised mental health practitioner may be called upon to examine the person to decide whether there is an underlying mental illness.  As a result, one possible outcome from an emergency examination authority is the making of a recommendation for assessment under the Mental Health Act.

Treatment authorities

Treatment authorities replace "involuntary treatment orders" under the Mental Health Act 2000.

There are two concepts that are critical to the making of treatment authorities:

  • the treatment criteria, and
  • treating a person in a “less restrictive way”.

Treatment criteria

The treatment criteria are all of the following:

  • the person has a mental illness, and
  • the person does not have capacity to consent to treatment for the illness, and
  • the absence of treatment is likely to result in imminent serious harm to the person or others or result in the person suffering serious mental or physical deterioration.

The definition of 'capacity'

The Mental Health Act 2016 includes a detailed definition of "capacity".

A person has capacity to consent to treatment if the person is capable of understanding in general terms:

  • that the person has an illness, or symptoms of an illness, that affects the person's mental health and wellbeing
  • the nature and purpose of the treatment for the illness
  • the benefits and risks of the treatment and alternatives to the treatment, and
  • the consequences of not receiving treatment.

The person must also be capable of making and communicating a decision about the treatment.

The Act promotes supported decision-making, so if a person is able to understand these matters with the assistance of another person, then the person has capacity to make the decision.

The person is presumed to have capacity, therefore a doctor or an authorised mental health practitioner needs to make a proactive decision that a person does not have capacity.

The fact that a person decides not to receive treatment is irrelevant in deciding whether a person does or does not have capacity.

It is essential that all staff in an authorised mental health service, particularly doctors and authorised mental health practitioners, understand the concept of capacity under the Act and can apply it in practice.

Less restrictive way

Another key concept is treating a person in a "less restrictive way".

If the person is a minor, treating the minor with the consent of a parent is considered a less restrictive way of treatment.

If the person has made an advance health directive and the person’s treatment and care needs can be met under the directive, then treating the person under the directive is considered a less restrictive way of treatment.

It is important to note that the advance health directive must consent to the treatment that is reasonably necessary to treat the person’s mental illness for a less restrictive way to apply.

Similarly, if a person can be treated with the consent of an attorney or guardian, then treating the person this way is also considered a less restrictive way of treatment.

Treatment authority process

There is a two stage process in making a treatment authority:

  1. An examination of a person by a doctor or authorised mental health practitioner may result in a "recommendation for assessment" being made for the person, and
  2. An assessment of a person by an authorised doctor under that recommendation for assessment may result in a treatment authority being made for the person.

Recommendation for assessment

A recommendation for assessment may only be made if a doctor or authorised mental health practitioner believes that the treatment criteria may apply to the person and there appears to be no less restrictive way to treat the person.

There are no restrictions on where an assessment may occur.  An assessment may be undertaken using audio-visual technology, if it is considered clinically appropriate in the circumstances.

A person can only be detained in an authorised mental health service or a public sector health service facility for an assessment and may be detained for up to 72 hours for this purpose.

Treatment Authorities

An authorised doctor may assess a patient if a recommendation for assessment has been made.  The purpose of an assessment is to decide whether a treatment authority should be made for the person.

A treatment authority may only be made if an authorised doctor believes that the treatment criteria apply to the person and there is no less restrictive way to treat the person.

In deciding whether there is a less restrictive way to treat the person, the Act requires an authorised doctor to check the patient's health records to see if an advance health directive is in place, or if an attorney or guardian has been appointed for the person.

Administrators must keep a record of advance health directives and attorneys, when requested to do so.

If an authorised doctor makes a treatment authority despite the existence of an advance health directive, or does not treat the person in accordance with the directive, the doctor must explain the reasons for this to the patient and record the reasons in the patient's health records.

A person on a treatment authority may be treated for the person’s mental illness without consent.

While the person may be placed on either an inpatient or community category, the Act requires that the person be placed on a community category unless the patient’s treatment and care needs cannot be met in that way.

Last updated: 26 July 2019