An involuntary patient is a person effectively detained and imprisoned in a psychiatric ward without their consent pursuant to an involuntary treatment order. They may be the only class of people in Victoria who have their freedom involuntarily restricted without a hearing or trial and without having broken any national or state laws.

To overcome the obvious human rights issues that this can raise, Parliament enacted the Mental Health Act 1986 (‘the Act’). One of its stated objectives is to “protect the rights of people with a mental disorder” and this ensures that the principles of natural justice and due process are adhered to when a person is detained in a psychiatric ward.

The Mental Health Review Board (“MHRB”)

The Act establishes the MHRB, whose purpose, amongst other things, is to hear appeals made by, or on behalf of, involuntary patients and to review periodically the orders made for involuntary patients and their treatment plans.

When someone is admitted into a psychiatric ward involuntarily, the MHRB must conduct an initial review of the involuntary treatment order within 8 weeks after the order is made. More importantly, the Act provides that an appeal can be made to the MHRB by an involuntary patient against his or her continued detention at any time. This means that an initial review/appeal can be heard within a week or two of the involuntary treatment order being made.

Where an appeal is successful the involuntary patient may be discharged.

Grounds for Appeal

The main ground for appeal is that the patient does not satisfy the criteria for involuntary treatment pursuant to section 8 of the Act. The criteria are that:

1. The person appears to be mentally ill; and
2. The person’s mental illness requires immediate treatment and that treatment can be obtained by the person being the subject to an involuntary treatment order; and
3. Because of the person’s mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person’s physical or mental condition or otherwise) or for the protection of members of the public; and
4. The person has refused or is unable to consent to the necessary treatment for the mental illness; and
5. The person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.

If the patient does not satisfy one of the above criteria then the patient should be discharged. For example, if the patient appears to be mentally ill and refuses treatment, but involuntary treatment is not necessary for the patient’s health or safety or for the protection of the public, then that patient is entitled to be discharged.

If the MHRB makes a decision unfavourable to the patient, the patient may appeal again to the MHRB (indeed as many times as he or she requires) or lodge an appeal with the Victorian Civil and Administrative Appeals Tribunal within 28 days of the decision.

The Act ensures that patients are advised of these rights upon their admission. Section 18 of the Act requires that every patient must be given a printed statement advising them of their legal rights (including the right to obtain legal representation and to have a second psychiatric opinion).

It is important that patients avail themselves of these rights to ensure that they are appropriately taken care of in a manner least restrictive of their freedom of decision and action.

This article is intended to provide general information only and is not a substitute for legal advice. To obtain legal advice tailored to your situation please contact Rudstein Kron Lawyers.