Legislation cited: Mental Health Act 2015 ss 80, 81, 84, 85, 91, 92

Crimes Act 1900, s 309

Human Rights Act 2004, ss 18, 30

Cases cited Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352

1. This was an application, under section 85(4) of the Mental Health Act 2015 (the Act), for a review of a tribunal order extending a period of emergency detention to which the applicant was subject.
2. A doctor had detained the applicant for three days in a mental health facility under emergency detention provisions and that period of detention had been extended by eleven days by the Tribunal. Shortly before the end of the 14-day period of detention, a doctor purported to decide to detain the applicant for another three days. The Tribunal then made an order extending the period of detention by a further eleven days.
3. The applicant submitted, and we accepted, that there was no power to continue detaining the applicant after the first 14-day period had expired. Accordingly, we ordered that the applicant be released.

1. The Magistrates Court made an order on or about 22 March 2025, pursuant to section 309 of the Crimes Act 1900, that the applicant be taken by a police officer to an approved mental health facility for clinical examination for the purpose of deciding whether he needs immediate treatment or care because of mental impairment.
2. On 22 March 2025, when taken to hospital, the applicant presented with symptoms of an acute manic episode with possible psychosis. He was refusing food and had lost a significant amount of weight in the previous two months.
3. On the same day, a doctor authorised the detention of the applicant for three days under section 85(1) of the Act. This is commonly known as an Emergency Detention 3 or ED3.
4. The Chief Psychiatrist's delegate applied to the tribunal to extend the period of detention under section 85(2) of the Act to extend the period of detention. On 25 March 2025, the Tribunal ordered, under section 85(3) of the Act, that the period for which the applicant may be detained is extended for a further period not longer than 11 days ending on 5 April 2025 at 2.15pm. This is commonly known as an Emergency Detention 11 order or ED11 order.
5. On 28 March 2025, a doctor applied for a psychiatric treatment order in relation to the applicant. That application was dismissed by the Tribunal after a hearing on 3 April 2025, on the basis that the Tribunal was not satisfied to the requisite standard that the applicant was suffering from a mental illness, and on the basis that the applicant had indicated his willingness to accept medication and inpatient support as recommended by the treating team.
6. At 9.15am on 5 April 2025, before the ED11 had expired, a doctor examined the applicant. The doctor purported to authorise another period of detention, pursuant to section 85(1) of the Act, commencing at 9.38am on 5 April 2025.
7. On 7 April 2025, the Chief Psychiatrist applied for an order extending the period of detention for another 11 days. The Tribunal considered the application without holding a hearing, as is its usual practice,[1] and made an order extending the period of detention until 9.38am on 19 April 2025.

1. On 10 April 2025, by email sent at 8.10am, the applicant applied to the Tribunal for a review of his involuntary detention, under section 85(4) of the Act.
2. On the morning of 10 April 2025, we held a hearing of that application at the hospital where the applicant was detained. The applicant was represented by Mr Borzuola, a lawyer from Legal Aid ACT. A psychiatry registrar from the hospital attended the hearing, as did the applicant.
3. Mr Borzuola submitted, for the applicant, that there was no power to detain the applicant after the first 14-day period of detention ended on 5 April 2025. We accepted that submission for the following reasons.

1. Chapter 6 of the Act, "Emergency Detention," comprising sections 80 to 92, establishes a scheme for detaining persons believed to have a mental disorder or mental illness in emergency situations.
2. Section 80(1) of the Act permits a police officer or authorised ambulance paramedic to apprehend a person if they hold the belief on reasonable grounds that, among other things, the person has a mental disorder or mental illness and has attempted, or is likely to attempt, suicide or to inflict serious harm on themself or another person.
3. There is an equivalent provision which allows certain health practitioners to apprehend a person. Under section 80(4) of the Act, a doctor or mental health officer may apprehend a person if they believe on reasonable grounds that, among other things, the person has a mental disorder or mental illness and requires treatment, care or support immediately or would do so within three days. Section 80(4) provides:

_(4) A doctor or mental health officer may apprehend a person if the doctor or mental health officer believes on reasonable grounds that - _

(a) the person has a mental disorder or mental illness; and

_(b) either - _

(i) the person requires immediate treatment, care or support; or

(ii) the person's condition will deteriorate within 3 days to such an extent that the person would require immediate treatment, care or support; and

(c) the person has refused to receive that treatment, care or support; and

(d) detention is necessary for the person's health or safety, social or financial wellbeing, or for the protection of someone else or the public; and

(e) adequate treatment, care or support cannot be provided in a less restrictive environment.

Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of search and seizure).

1. A person who has been apprehended under subsection 80(1) or (4) may be taken to an approved mental health facility.[2]
2. A person may also be taken involuntarily to an approved mental health facility under the Crimes Act 1900. Section 309(1) of the Crimes Act 1900 gives the Magistrates Court a discretion to order that an accused person be taken to an approved mental health facility for clinical examination for the purpose of deciding whether the accused needs immediate treatment or care because of mental impairment. Section 309(1)(a) provides:

_(1) If, in a proceeding in the Magistrates Court, the court has reasonable grounds for believing that an accused needs immediate treatment or care because of mental impairment, the court may, without requiring the accused to submit to the jurisdiction of the ACAT, order that - _

(a) the accused be taken by a police officer or corrections officer to an approved mental health facility for clinical examination for the purpose of deciding whether the accused needs immediate treatment or care because of mental impairment; ...

1. The person in charge of the mental health facility is required to detain persons brought to the facility under section 80 of the Act or section 309 of the Crimes Act 1900. The person in charge of the mental health facility also has a discretion to detain persons who are attending the facility. Subsection 81(1) and (2) of the Act provide:

81 Detention at approved mental health facility

(1) If a person is taken to an approved mental health facility under section 80 or the Crimes Act, section 309 (1) (a) (Assessment whether emergency detention required), the person in charge of the facility must detain the person at the facility.

(2) If a doctor or mental health officer believes on reasonable grounds that a person attending an approved mental health facility (voluntarily or otherwise) is a person to whom section 80 (4) (a) to (e) applies, the doctor or mental health officer may detain the person at the facility.

1. Subsection 84(2) of the Act requires the person in charge of the approved mental health facility to ensure that a relevant doctor conducts an initial examination of the subject person within 4 hours after being detained at the facility (for a person detained under section 81(1)) or arriving at the facility (for a person detained under section 81(2)).
2. A doctor may authorise the involuntary detention and treatment, care or support of a person at an approved mental health facility for a period not exceeding 3 days under section 85(1) of the Act. The doctor may do so if he or she has conducted an initial examination of the person under section 84 and has reasonable grounds for believing certain specified matters, and another doctor who has examined the person also has reasonable grounds for believing those matters.
3. Subsections 85(2) to (4) provide:

(2) Before the end of the 3-day period of detention, the chief psychiatrist may apply to the ACAT to extend the period of detention if the chief psychiatrist believes on reasonable grounds that the person continues to meet the criteria mentioned in subsection (1) (a) (i) to (iv).

(3) If an application is made under subsection (2), the ACAT may order that the period of detention be extended by the period, not longer than 11 days, stated in the order.

(4) A person may apply to the ACAT for the review of involuntary detention under this section.

1. Sections 91 and 92 of the Act provide:

(1) If a relevant entity is satisfied that the detention of a person under section 85 is no longer justified, the entity must, as soon as practicable, order the release of the person before the period of detention authorised under that subsection expires.

(2) However, if the person detained under section 85 is an accused person to whom an order under the Crimes Act, section 309 (1) (Assessment whether emergency detention required) applies, the relevant entity must, as soon as practicable, notify the person in charge of an approved mental health facility if satisfied that the detention of the person is no longer justified.

(a) a doctor who examined the person under section 86; or

(b) the chief psychiatrist; or

(c) the ACAT.

_(1) A person in charge of an approved mental health facility must ensure that a person detained at the facility under section 85 - _

(a) is released in accordance with an order under section 91; or

(b) if no order under section 91 is made and subject to any other order of the ACAT - is released at the end of the period of detention authorised under section 85.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) If the person in charge of an approved mental health facility is notified under section 91 (2), the person must, as soon as practicable, discharge the person to whom the notification relates into the custody of a police officer.

1. The effect of section 92(1)(b) of the Act is that a person in charge of an approved mental health facility is required to release a person when an ED11 expires ("the end of the period of detention authorised under section 85"), unless ACAT has made another order authorising continuing detention of the person. In this case, ACAT had not made any such order when, on 5 April 2025, the second ED3 was purportedly made. It follows that the applicant was required to be released from the mental health facility when the first ED11 expired; that is, at 2.15pm on 5 April 2025.
2. The Act does not, in our view, authorise a doctor to make an ED3 before an ED11 has expired, as occurred in this case. A possible source of power to do so is section 81(2), set out above, which gives a doctor the power to detain "a person attending an approved mental health facility (voluntarily or otherwise)." Whilst this could be thought to apply to a person who is detained in a mental health facility, that construction is not supported by the text, read in its statutory context. The word "attending" suggests that the person in respect of whom an order under section 81(2) may be made is not a person who is already detained. Further, it would not make sense for a power to detain a person to be exercisable when the person is already detained.
3. It is most likely that the words "or otherwise" in the phrase "voluntarily or otherwise" in section 81(2) are intended to capture persons who are attending the facility involuntarily but who have not been detained at the facility. An example might be an interstate patient in breach of an interstate involuntary treatment order who has been apprehended and brought to a mental health facility under section 247 of the Act. Another example is a person the subject of an assessment order who has been directed to attend a mental health facility and, if necessary and reasonable, stay at the facility until the assessment has been conducted.[3]
4. Another important consideration when considering whether the 14-day emergency detention period may be extended by a doctor starting the process again is that Chapter 6 of the Act sets up a scheme for detaining persons which is subject to important safeguards for those persons. There are strict time limits which must be complied with. For example, there is an initial maximum period of four hours in which a person who has been apprehended may be detained at or arriving at a mental health facility (as relevant), before being examined.[4] The person may then only be detained for three days, within a tribunal order extending that period for a further eleven days. The nature of the detention, being emergency detention, coupled with those time limits, strongly suggests that the legislature did not intend those time limits to be capable of being extended by a doctor deciding to detain a person for a further three days before the fourteen-day period had expired. The time limits are protective of the right to liberty.
5. The fourteen-day period provides sufficient time for an application to be made for a psychiatric treatment order, an order which may be made for a period of up to six months, and a restriction order, which may authorise detention of a person.[5] That also supports a construction of the Act which requires a person to be released after being detained under emergency orders for fourteen days, and which does not authorise the making of an ED3 during a period when a person is being detained under an emergency order.
6. So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.[6] The right to liberty and security of person is a particularly important human right.[7] As Mossop AsJ (as his Honour then was) has observed, "[t]he loss of personal liberty at the hands of the state is a serious matter."[8] The construction of the Act which we have adopted is most consistent with recognising the human rights of persons with mental disorders and mental illnesses (and persons believed to have a mental disorder or mental illness), and in particular their right to liberty.
7. For these reasons, we decided that the doctor's decision to detain the applicant for a further three days on 5 April 2025 was not lawful. It was therefore appropriate to make an order to release the applicant from detention.
8. Our understanding is that the applicant would likely be released into the custody of a police officer under section 309 of the Crimes Act 1900.

[1] Act, s 85(6)

[2] Act, s 80(3) and (5)

[3] Act, s 40(1)(c)

[5] Act, ss 58-61, 76

[6] Human Rights Act 2004, s 30

[7] Human Rights Act 2004, s 18(1)

[8] Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352 at [130]