Australian Civil Liberties Union

Your Rights 2005

Chapter 18


Mental Illness. Confidentiality. Types of Support. Criteria for Involuntary Detention. Police Powers. Discharge. Community Treatment Orders. Treatment and Consent. How to Maintain Your Mental Health. Relevant Phone Numbers.

Mental illness is becoming one of the most common health problems in Australia. About 20% of Australians receive treatment for some type of mental illness during their lives. The law varies from state to state and this chapter is only a general guide to your rights. As in other areas of the law you should ask questions about your rights. The Mental Health system encourages people to obtain information. For instance, prominent notices in institutions set out the phone numbers of independent watchdogs to which queries and complaints can be directed (see the phone numbers listed in Chapter 1).

Official visitors (or community visitors) make regular visits and can visit institutions without notice. They are required to make enquiries about the treatment of patients and may obtain full disclosure of relevant information.

For the purposes of involuntary detention and tratment, you cannot be considered mentally ill only (to give some examples) because of sexual promiscuity; immoral conduct; illegal conduct; being intellectually disabled; taking drugs or alcohol or having an antisocial personality. Some examples of mental illnesses are depression, schizophrenia, schizo-affective disorder and bipolar affective disorder.

People with a mental illness should be provided with timely and high quality treatment and care in accordance with professionally accepted standards; and wherever possible, should be treated in the community (e.g. at home). People with a mental illness should be provided with appropriate and comprehensive information about their mental illness or disorder, proposed and alternative treatments, including medication and services available to meet their needs.


As a general rule, the staff of a mental health service are obliged to keep your personal information confidential. If they want to release some of this information they must ask for your permission. However, there are some exceptions to this. For example, information may be released when the information is related to your psychiatric treatment and is required by other staff who are on the treatment team, and when the information is required for some court in the course of proceedings.

Sources of Support

When a person has a mental illness or disorder, some of the ways they can seek treatment are by: admission to a hospital; assessment by a visiting Crisis Assessment and Treatment Team (CATT); assessment by a visiting Mobile Support and Treatment Team (MST); attending a Community Mental Health Clinic or Disability Support Service; seeing a general practitioner or private psychiatrist or therapist.

Voluntary Patient

If you have admitted yourself to a hospital you will be referred to as an informal or voluntary patient. If you are a voluntary patient, you have the right to leave the hospital at any time. You have the right to choose whether you have treatment for your mental illness. If you want to leave or you refuse the treatment offered, the doctors may consider whether you meet the criteria for involuntary admission.

Admission as an Involuntary Patient

Admission procedures vary from state to state. You may be recommended by attending the hospital on your own volition requesting treatment, being referred by a GP, being apprehended by the police following a complaint, or apprehended by a CATT team because you have not observed the conditions of a Community Treatment Order (CTO).

If you are required to accept treatment against your will, then you are an involuntary patient (called a temporary patient in NSW).An involuntary patient can be an inpatient in a hospital or on a Community Treatment Order (CTO).The criteria for admission vary but the core requirements are that you appear to be mentally ill, evidenced by such matters as delusions, serious thought disorder, sustained irrational behaviour (NSW Act) and significant disturbance of thought perception mood or memory (Vic Act), you need immediate treatment, that treatment can only be given if you are detained, that you need to be detained for your own health or safety or the safety of others, and (NSW only) that you have one of certain specified symptoms.

Generally, medical assessments by two doctors conducting separate examinations are required indicating that you meet the criteria. If you do not meet the criteria you should not be detained. If, later, you cease to meet the criteria you should be released. The decision to detain you for treatment must be subject to a speedy internal review by a psychiatrist, or (in NSW only) review by a visiting magistrate.The decision can be further reviewed in all states by the Mental Health Review Board in Vic and WA, the MHR Tribunal in NSW, the Patient Review Tribunal in Qld, the Guardianship Board in SA and the Mental Health Tribunal in Tas (all hereinafter referred to as “The Tribunal” – see phone numbers at end of chapter) at any time at the request of yourself, a friend or an official visitor. The decision must also be reviewed by the tribunal within an early prescribed period and be subject to further regular review (eg annually).

The police also have a separate power to apprehend you if you have recently attempted suicide or tried to cause serious physical harm to yourself or others or you are likely to attempt suicide or cause serious physical harm to yourself or others. In these circumstances the police must arrange for you to be examined by a doctor as soon as practicable after they apprehend you.

Statement of rights

If you are an involuntary patient you must be given a written and a spoken statement of your rights upon admission. You have the right to complain about your treatment or anything you are unhappy about, to staff, official visitors and Ombudsman, or the Tribunal. All involuntary patients will have an automatic review of their involuntary status within a prescribed period after their admission.You may obtain a second opinion from a psychiatrist, obtain legal advice and have a lawyer represent you and have your detention reviewed. (Contact Legal Aid - Chapter 1 or a Legal Health Centre). All reviews of involuntary patients are conducted by the Tribunal. If you do not want to wait for the automatic review, you can appeal against your involuntary status at any time. You should ask staff at the hospital about this.


If at any time you don’t meet criteria leading to your detention, you must be discharged from hospital. The treating psychiatrist, the chief or “orthorized” psychiatrist at the hospital, a Chief Medical Officer or the Tribunal may discharge the patient or allow the patient to be absent on trial leave.The patient may be discharged at the request of the person who first requested hospitalisation. Official visitors (community visitors in Victoria) can recommend a discharge.

Community Treatment Order (CTO)

If you are living in the community and you are required to accept treatment against your will (see criteria for involuntary detention) you must be placed on a Community Treatment Order (CTO).Wherever possible people should be able to receive treatment in the community. The maximum time a CTO can be made for is usually 12 months. A CTO can be extended by your psychiatrist. An extension must be reviewed within a prescribed period to make sure you continue to meet the criteria for involuntary treatment. A CTO can be revoked if you don’t take your medication or fail to turn up for appointments or have failed to comply with the order. This means you are deemed to be an involuntary patient who is absent from hospital without leave and you may be apprehended and returned to the hospital. If you are unhappy about being on a CTO or wish to have it varied, you can appeal to the Tribunal at any time.

Treatment and Consent

Psychiatric treatment is defined as things done with professional skill to remedy the illness or to lessen its ill effects or the pain and suffering which it causes. Treatment includes medication, counselling, psychotherapy and monitoring to see how you are going. As a voluntary or informal patient you can refuse treatment or change your mind about treatment and withdraw your consent if you decide you don’t like any of the treatment.You have the right to get a second opinion from another doctor at this time.

Involuntary patients and consent to psychiatric treatment. If you are an involuntary patient in a hospital or on a Community Treatment Order you must still be given sufficient information about your psychiatric treatment and your preference will be considered, but you will not be required to give informed consent. You are legally required to accept the psychiatric treatment which is given to you.

Electroconvulsive therapy (ECT) (shock treatment), ECT can be performed without seeking your informed consent if you are an involuntary patient and the authorised psychiatrist decides you are incapable of giving informed consent. However, the authorised psychiatrist must also be satisfied that certain strict criteria have been met. In NSW the Tribunal must agree to the ECT.

Non-psychiatric treatment:

Voluntary (informal) patients Non-psychiatric treatment is treatment which is not related to a mental illness. If you are a voluntary patient, you have the same rights to consent to or refuse non-psychiatric treatment as can any member of the community.

Involuntary patients. If you are involuntary doctors have to get your written consent for non-psychiatric treatment if you are able to consent, unless it is emergency treatment which is necessary to save your life. There are different rules for involuntary patients about how you consent and what happens if you cannot consent, depending on the type of non-psychiatric treatment. If you are involuntary but can consent to major non-psychiatric treatment your written consent must be obtained, unless it is emergency treatment which is necessary to save your life. If you are deemed unable to consent a psychiatrist or a guardian may consent to the treatment on your behalf.

How to maintain your mental health

Do:- Keep appointments with clinical therapist. Keep appointments with psychiatrists. Maintain contact with your local GP. Ensure you get enough sleep. Eat a balanced diet. Take medication as prescribed and report any side effects. Monitor for emergence of early warning signs. Try to keep reasonably active. Discuss problems with others. Learn as much about your illness as possible.Try to set specific realistic short term goals. Ask for help when necessary.Take regular exercise.

Don’t:- Stop medication without discussion with your doctor. Overuse alcohol or drugs. Withdraw from family and friends. Try to take on too much all at once. Keep all your problems to yourself.

Where to get help

VIC Legal Aid 9269 0234, Community Visitor 9603 9500, MHRB 8601 5270

NSW Legal Aid 9745 4277, Official Visitor 9620 8218, MHRT 9816 5955

WA Legal Aid 9261 6222, Official Visitor 1800 999 057, MHRB 9226 3255

QLD Legal Aid 3234 0680, Official Visitor 3234 0160, PRT 3234 0702

SA Legal Aid 8463 3555, Official Visitor 8269 7575, GB 8269 7515

TAS Legal Aid 6233 8383, Official Visitor 6233 3085, MHRB 6233 3033

ALL STATES. Police emergency 000. Lifeline 131 114.


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Australian Civil Liberties Union