This Act replaces prior mental‑health law and sets detailed rules for involuntary and voluntary treatment. It defines capacity and consent, authorises psychiatrists to make inpatient or community treatment orders, and prescribes time limits, transfer/transport, seclusion/restraint controls, ECT and psychosurgery approvals, treatment planning, reporting and complaints. It affects patients, psychiatrists, hospitals, carers, police and oversight bodies by allocating decision‑making, notification duties and compliance obligations.
The Mental Health Act 2014 (WA) is the principal statute governing the treatment, care, protection, and rights of people with mental illness in Western Australia. It defines when involuntary treatment is lawful, what processes must be followed, how treatment decisions are reviewed, and what rights patients, carers, and families have throughout the process.
The Act is divided into 30 Parts covering: preliminary matters and definitions (Parts 1–2); the objects and Charter of Mental Health Care Principles (Parts 3–4); decision-making capacity and consent (Part 5); involuntary patient status and procedures (Part 6); examination, detention and order-making (Part 7); community treatment orders (Part 8); notifiable events (Part 9); transport orders (Part 10); apprehension and search powers (Part 11); treatment regulation (Parts 13–14); patient rights (Part 16); carers and families (Part 17); children (Part 18); complaints (Part 19); advocacy (Part 20); Mental Health Tribunal (Part 21); State Administrative Tribunal review (Part 22); administration (Part 23); interstate arrangements (Part 24); information (Part 26); and transitional provisions (Parts 29–30).
Main concepts
Mental illness (s 6): The Act defines mental illness as a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person in one or more of the areas of thought, perception, orientation or memory. The definition is deliberately non-exhaustive but excludes conditions caused solely by alcohol or drug use, or by antisocial behaviour, unless they are accompanied by a condition that otherwise qualifies as a mental illness.
Current sections
Direct links to the current provisions in Mental Health Act 2014.
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Part 1
Preliminary matters
Part 1 — Preliminary matters
Short title 2
Commencement 2
Act binds Crown 2
Part 2
Terms and concepts
Part 2 — Terms and concepts
Div 1
Definitions and notes
Division 1 — Definitions and notes
Terms used 3
Notes and examples not part of Act 11
Div 2
Mental illness
Division 2 — Mental illness
When person has a mental illness 11
Div 3
Best interests of a person
Division 3 — Best interests of a person
Matters relevant to decision about person’s best interests 13
Div 4
Wishes of a person
Division 4 — Wishes of a person
Matters relevant to ascertaining person’s wishes 13
Div 5
Communicating with a person
Division 5 — Communicating with a person
Language, form of communication and terms to be used 14
Part 3
Objects
Part 3 — Objects
Objects 15
Part 4
Charter of Mental Health Care Principles
Part 4 — Charter of Mental Health Care Principles
Regard to be had to Charter 16
Compliance with Charter by mental health services 16
Part 5
Decision making capacity and informed consent
Part 5 — Decision making capacity and informed consent
Division 1 — Decision making capacity generally
Capacity of adult to make decisions 17
Capacity of child to make decisions 17
Determining capacity to make decisions 17
Division 2 — Informed consent to treatment
Requirements for informed consent 18
People who can give informed consent 18
Determining capacity to make treatment decision 19
Explanation of proposed treatment must be given 19
Sufficient time for consideration 20
Part 6
Involuntary patients
Part 6 — Involuntary patients
Division 1 — When a person will be an involuntary patient
Involuntary patient 21
Inpatient treatment order 21
Community treatment order 21
Making involuntary treatment order 22
Criteria for involuntary treatment order 22
Division 2 — Referrals for examination
Subdiv 1
Person suspected of needing involuntary treatment order
Subdivision 1 — Person suspected of needing involuntary treatment order
Referral for examination at authorised hospital or other place 24
Person to be taken to authorised hospital or other place as soon as practicable 25
Detention to enable person to be taken to authorised hospital or other place 25
Making transport order 28
Effect of referral on community treatment order 28
Revoking referral 29
Subdiv 2
Voluntary inpatient admitted by authorised hospital
Subdivision 2 — Voluntary inpatient admitted by authorised hospital
Application of this Subdivision 30
Effect of admission on community treatment order 30
Person in charge of ward may order assessment 31
Revoking order for assessment 32
Referral for examination at authorised hospital 33
Revoking referral 33
Subdiv 3
Requirements for referral
Subdivision 3 — Requirements for referral
Application of this Subdivision 34
No referral without assessment 34
Time limit for making referral 35
Form of referral 35
Providing information contained in referral to person referred 36
Copy of referral must be filed 36
Period of referral made under s. 26(2) or (3)(a) 36
Extending referral made outside metropolitan area 37
Changing place where examination will be conducted 38
Subdiv 4
Conduct of assessment
Subdivision 4 — Conduct of assessment
Application of this Subdivision 39
How assessment must be conducted 40
Information to which practitioner may have regard 40
Assessment of person of Aboriginal or Torres Strait Islander descent 41
Division 3 — Examinations
Subdivision 1 — Examination at authorised hospital
Application of this Subdivision 41
Detention for examination on referral made under s. 26(2) 42
Detention for examination on referral made under s. 36(2) 42
Conducting examination 43
What psychiatrist must do on completing examination 43
Effect of order for continuation of detention 45
Subdivision 2 — Examination at place that is not authorised hospital
Application of this Subdivision 46
Detention for examination 46
Detention at place outside metropolitan area 47
Conducting examination 48
What psychiatrist must do on completing examination 48
Detention to enable person to be taken to hospital 50
Making transport order 52
Subdivision 3 — Inpatient treatment order authorising detention at general hospital
Application of this Subdivision 52
Treating psychiatrist must report regularly to Chief Psychiatrist 52
Transfer from general hospital to authorised hospital 53
Making transport order 54
Confirmation of inpatient treatment order 54
Subdivision 4 — Order for further examination at authorised hospital
Application of this Subdivision 55
Detention at authorised hospital 55
Conducting examination at authorised hospital 56
What psychiatrist must do on completing examination 56
Subdiv 5
Examination without referral
Subdivision 5 — Examination without referral
Application of this Subdivision 57
Conducting examination 57
What psychiatrist may do on completing examination 57
Consequences of declaring treatment order in force to be invalid 293
Application for declaration 294
Parties to proceeding 294
Failure to comply with this Act 294
Discretion not to decide on validity of treatment order no longer in force 295
Division 5 — Review of admission of long‑term voluntary inpatients
Application of this Division 295
Application for review 296
Parties to proceeding 296
Things to which Tribunal must have regard 296
What Tribunal may do on completing review 297
Division 6 — Electroconvulsive therapy approvals
Application of this Division 297
Application for approval 298
Parties to proceeding 298
Things Tribunal must be satisfied of 299
Tribunal must have regard to Chief Psychiatrist’s guidelines 299
Other things to which Tribunal must have regard 299
Decision on application 301
Div 7
Psychosurgery approvals
Division 7 — Psychosurgery approvals
Application of this Division 301
Application for approval 301
Parties to proceeding 302
Things Tribunal must be satisfied of 302
Things to which Tribunal must have regard 303
Decision on application 303
Div 8
Compliance notices for non‑clinical matters
Division 8 — Compliance notices for non‑clinical matters
Terms used 303
Tribunal may issue service provider with compliance notice 304
Application for service of compliance notice 305
Parties to proceeding 305
Compliance notices to be reported on in annual report 306
Div 9
Review of orders restricting freedom of communication
Division 9 — Review of orders restricting freedom of communication
Application for review 306
Parties to proceeding 306
Decision on application 307
Div 10
Jurisdiction in relation to nominated persons
Division 10 — Jurisdiction in relation to nominated persons
Application for decision 307
Declaration about validity of nomination 307
Revocation of nomination 308
Parties to proceeding 308
Div 11
Review of decisions affecting rights
Division 11 — Review of decisions affecting rights
Application for review 309
Parties to proceeding 309
What Tribunal may do on completing review 309
Div 12
Procedural matters
Division 12 — Procedural matters
Subdivision 1 — Proceedings generally
Lodgment of documents 310
Sittings 310
Conduct of proceedings 310
Presiding member 310
Deciding questions in proceedings 310
Assistance from persons with relevant knowledge or experience 311
No fees payable 311
Each party to bear own costs 311
Frivolous, vexatious or improper proceedings 311
Subdivision 2 — Notice of proceedings
Notice of applications 312
Notice of hearings 313
Tribunal may request information from SAT about person’s guardian 315
Subdivision 3 — Appearance and representation
Party is an adult 315
Party is a child with capacity to consent 316
Party is a child with no capacity to consent 317
Tribunal may make arrangements for representation 317
Legal representation of person with mental illness 318
Representative must not be paid 318
Subdivision 4 — Hearings and evidence
Nature of review proceedings 318
Closed hearings 320
Conduct of hearing in absence of party 320
Person chosen by person concerned may be present 321
Right to be heard 321
Evidence generally 321
Oral evidence about restricted information 322
Summons to give evidence or produce documents 322
Self‑incrimination 323
Powers in relation to documents produced 323
Offences relating to evidence and documents 323
Evidence and findings in other proceedings 324
Hearings to be recorded 325
Publication of information about proceedings 325
Subdivision 5 — Decisions in proceedings
Reasons for decision 329
Extension of time to request reasons 329
Giving effect to Tribunal’s decisions 330
Div 13
Rules
Division 13 — Rules
Power to make 330
Content 330
Publication and tabling 331
Div 14
Tribunal members
Division 14 — Tribunal members
President of Tribunal 332
Other members 332
Terms and conditions of appointment 332
Remuneration 333
Resignation 333
Removal from office 333
Acting members 334
Delegation by President 335
Div 15
Registrar and other staff
Division 15 — Registrar and other staff
Registrar 336
Functions of registrar 336
President may give registrar directions 336
Registry staff 337
Delegation by registrar 337
Div 16
Annual reports
Division 16 — Annual reports
Annual report: preparation 337
Annual report: tabling 337
Div 17
Miscellaneous matters
Division 17 — Miscellaneous matters
Seal 338
Judicial notice of certain matters 338
Meetings of members 339
Part 22
Review by State Administrative Tribunal
Part 22 — Review by State Administrative Tribunal
Terms used 340
Division 2 — Jurisdiction
Review of decisions of Mental Health Tribunal 340
Determination of questions of law before Mental Health Tribunal 341
Division 3 — Constitution
Constitution generally 341
Constitution for psychosurgical matters 341
Constitution for determining questions of law 342
Division 4 — Procedural matters
No fees payable 342
Appearance and representation 343
Closed hearings 343
Publication of information about proceedings 344
Division 5 — Appeals to Supreme Court
Appeals against SAT’s decisions 348
Grounds of appeal 348
Time for appeal or leave to appeal 349
Certain parties must be represented 349
Part 23
Administration
Part 23 — Administration
Term used: mental health service 350
Division 2 — Chief Psychiatrist
Subdivision 1 — Appointment, terms and conditions
Appointment 350
Terms and conditions of appointment 350
Remuneration 350
Resignation 351
Removal from office 351
Acting Chief Psychiatrist 351
Subdivision 2 — Functions and powers generally
Functions generally 352
Responsibility for treatment and care 352
Directions by Minister 353
Minister may request report about any matter 354
CEO of Health Department may request report about treatment and care of patients 354
Powers generally 355
Subdivision 3 — Specific powers relating to treatment and care
Review of treatment 355
Visits to mental health services 356
Offence to interfere with visit to mental health service 358
Directions to mental health services to disclose information 359
Subdivision 4 — Notifiable incidents
Application of this Subdivision 359
Term used: notifiable incident 360
Reporting notifiable incidents 360
Action that Chief Psychiatrist may take 361
Notification of decision to take action 362
Chief Psychiatrist’s powers of investigation 362
Notification of outcome of investigation 362
Subdivision 5 — Staff and facilities
Chief Psychiatrist’s staff 363
Use of government staff and facilities 363
Subdivision 6 — Annual reports
Annual report: preparation 363
Annual report: tabling 364
Subdivision 7 — Miscellaneous matters
Request for information about patient or person detained 365
Request for list of certain supervised persons 365
Delegation by Chief Psychiatrist 366
Division 3 — Mental health practitioners and authorised mental health practitioners
Mental health practitioners 367
Authorised mental health practitioners 367
Register of authorised mental health practitioners 368
Division 4 — Authorised hospitals
Authorised hospital: meaning 369
Authorisation of public hospitals 369
Patients to be transferred if hospital no longer authorised 370
Division 5 — Mental health services approved for electroconvulsive therapy
Chief Psychiatrist to approve mental health services 370
Division 6 — Approved forms
Chief Psychiatrist to approve forms 371
Publication of approved forms and related guidelines 371
Division 7 — Guidelines and standards
Publication of guidelines and standards 371
Application, adoption or incorporation of other documents 372
Publication on Agency’s website 372
Division 8 — Miscellaneous matters
Delegation by Minister or CEO 373
Part 24
Interstate arrangements
Part 24 — Interstate arrangements
Terms used 374
Division 2 — Intergovernmental agreements
Agreements with other States and Territories 375
Agreement must be in place 375
Performance of functions under corresponding laws or intergovernmental agreements 376
Division 3 — Transfer to or from interstate mental health service
Transfer from hospital to interstate mental health service 376
Making transport order 377
Transfer from interstate mental health service to hospital 378
Transport of interstate inpatient to hospital 379
Division 4 — Community treatment orders
Treatment interstate under State order 379
Making transport order 379
Treatment in State under interstate order 380
Supervision in State under interstate order 380
Part 25
Ministerial inquiries
Part 25 — Ministerial inquiries
Appointment of person to conduct inquiry 381
Powers of investigation 381
Interfering with investigation 382
Conduct of inquiry generally 383
Evidence generally 383
Summons to give evidence or produce documents 384
Self‑incrimination 384
Powers in relation to documents produced 385
Offences relating to evidence and documents 385
Part 26
Information
Part 26 — Information
Division 1 — Voluntary disclosure of information by public authorities and mental health services
Powers of Agency’s CEO 387
Powers of CEOs of prescribed State authorities 389
Powers of CEOs of mental health services 390
Delegation by CEO of prescribed State authority 391
Division 2 — Miscellaneous matters
Confidentiality 392
Authorised recording, disclosure or use of information 393
Receipt and storage of, and access to, information disclosed 394
Part 27
Miscellaneous matters
Part 27 — Miscellaneous matters
Restrictions on powers of medical practitioners and mental health practitioners 395
Obstructing or hindering person performing functions 396
Amendment of referrals and orders 397
Medical record to be kept by mental health services 397
Protection from liability when performing functions 398
Protection from liability when detaining person with mental illness 399
Relationship with Freedom of Information Act 1992 399
Regulations 399
Review of this Act after 5 years 400
Part 28
Repeals
Part 28 — Repeals
Acts repealed 401
Regulations repealed 401
Part 29
Transitional matters for *Mental Health Act 2014*
Part 29 — Transitional matters for Mental Health Act 2014
Terms used 402
Division 2 — Administrative provisions
Subdivision 1 — Chief Psychiatrist
First Chief Psychiatrist (1996 Act s. 8) 403
Review of psychiatrists’ decisions about involuntary patients (1996 Act s. 12) 404
Inspections of relevant premises (1996 Act s. 13) 404
Records of Chief Psychiatrist 405
Subdivision 2 — Authorised practitioners
Authorised mental health practitioners (1996 Act s. 20) 405
Subdivision 3 — Authorised hospitals
Authorisation of public hospitals (1996 Act s. 21) 406
Subdivision 4 — Registrar and staff of Mental Health Review Board
Registrar (1996 Act s. 22(a)) 406
Other staff (1996 Act s. 22(b)) 407
Division 3 — Involuntary patients
Subdivision 1 — Referral for examination
Referral for examination of person (1996 Act s. 29) 407
Referral for examination of voluntary inpatient (1996 Act s. 30) 408
Personal examination for referral (1996 Act s. 31 and 32) 409
Transport to authorised hospital or other place (1996 Act s. 34) 409
Subdivision 2 — Examination at authorised hospital
Detention of person who is referred at authorised hospital (1996 Act s. 36) 410
Detention of voluntary inpatient admitted to authorised hospital 411
Examination of person who is referred (1996 Act s. 37 including as applied by s. 30(5)) 411
Order made in respect of person who is referred (1996 Act s. 37 including as applied by s. 30(5)) 412
Subdivision 3 — Examination at place other than authorised hospital
Receival of person at place other than authorised hospital 413
Examination for purposes of referral made under 1996 Act s. 29(2)(b) 413
Detention of person for assessment at authorised hospital (1996 Act s. 39 and 40) 414
Assessment because of order made under 1996 Act s. 39(1) 415
Order made in respect of person detained for assessment (1996 Act s. 40(1)(b)) 415
Transport to authorised hospital (1996 Act s. 41) 416
Subdivision 4 — Detention in authorised hospital
Transfer to another authorised hospital (1996 Act s. 46) 416
Period of detention specified in order (1996 Act s. 48) 416
Examination of patient within detention period (1996 Act s. 49(1) and 50(1)) 417
Order made on examination within detention period (1996 Act s. 49(3) including as applied by s. 50(2)) 417
Order made at any time (1996 Act s. 52) 418
Subdivision 5 — Absence without leave and leave of absence
Absence without leave (1996 Act s. 57) 419
Apprehension of person absent without leave (1996 Act s. 58) 419
Grant of leave (1996 Act s. 59) 420
Monitoring of involuntary inpatient on leave (1996 Act s. 62) 420
Release of involuntary inpatient while on leave (1996 Act s. 63) 420
Subdivision 6 — Treatment of involuntary patient in community
Community treatment order made under general power (1996 Act s. 67) 421
Confirmation of community treatment order (1996 Act s. 69) 421
Order made on revocation of community treatment order (1996 Act s. 70) 422
Transport to authorised hospital (1996 Act s. 71) 422
Review by supervising psychiatrist (1996 Act s. 75) 423
Extension of community treatment order (1996 Act s. 76) 423
Examination and report by authorised medical practitioner (1996 Act s. 77) 424
Variation of community treatment order (1996 Act s. 79) 424
Notice of breach (1996 Act s. 81) 425
Order to attend if breach continues (1996 Act s. 82) 425
Order for police assistance (1996 Act s. 84) 426
Division 4 — Treatment of patients
Informed consent (1996 Act Pt. 5 Div. 2) 426
Psychosurgery: approval already given (1996 Act s. 101) 426
Psychosurgery: application for approval pending (1996 Act s. 102) 427
Electroconvulsive therapy: course of treatment commenced before commencement day 427
Electroconvulsive therapy: recommendation referred to Mental Health Review Board (1996 Act s. 106) 427
Other medical treatment that is not psychiatric treatment (1996 Act s. 110) 427
Second opinion requested (1996 Act s. 111) 428
Dissatisfaction with second opinion (1996 Act s. 112) 429
Seclusion (1996 Act s. 119) 429
Mechanical bodily restraint (1996 Act s. 123) 430
Division 5 — Mental Health Review Board
Subdivision 1 — President and other members of Board
Appointment to Mental Health Tribunal (1996 Act s. 126 and Sch. 1) 430
Subdivision 2 — Reviews and inquiries
Initial review after commencement day (1996 Act s. 138) 431
First periodic review after commencement day (1996 Act s. 139) 432
Application for review pending before commencement day (1996 Act s. 142) 433
Suspension of order or restraint of action pending review (1996 Act s. 143) 434
Board initiated review (1996 Act s. 144) 434
Order that community treatment order be made (1996 Act s. 145(2)(b)) 434
Complaints to Board (1996 Act s. 146) 435
Enquiries directed by Minister (1996 Act s. 147) 435
Final report about activities of Mental Health Review Board (1996 Act s. 148) 436
Records and proceedings of Mental Health Review Board 436
Subdivision 3 — Applications to State Administrative Tribunal
Applications for review or determination of questions of law (1996 Act Pt. 6 Div. 2A) 436
Subdivision 4 — Appeals from State Administrative Tribunal
Appeals to Supreme Court (1996 Act Pt. 6 Div. 3) 437
Division 6 — Protection of patient’s rights
Interview with psychiatrist requested by patient (1996 Act s. 164) 437
Personal possessions left at authorised hospital (1996 Act s. 165(3)) 438
Order restricting or denying patient’s rights (1996 Act s. 169) 438
Application for review of order restricting or denying patient’s right (1996 Act s. 170) 438
Division 7 — Community support services
Funding and services agreements (1996 Act s. 174) 438
Division 8 — Council of Official Visitors
Matters generally 439
Request for visit by official visitor (1996 Act s. 189) 439
Exercise of powers by official visitors and panels (1996 Act s. 190) 440
Reports requested by Minister (1996 Act s. 192(2)) 440
Final report about activities of official visitors (1996 Act s. 192(3)) 441
Records of Council of Official Visitors 442
Division 9 — Other matters under 1996 Act
Person taken into protective custody (1996 Act s. 195) 442
Examination of person arrested (1996 Act s. 196) 442
Things seized by police officer (1996 Act s. 197) 443
Review of determination of capacity to vote (1996 Act s. 203) 443
Records of patients (1996 Act s. 204) 443
Request for information about patient or person detained (1996 Act s. 205) 443
Inquiries (1996 Act Pt. 10 Div. 5) 444
Rectification of referrals and orders (1996 Act s. 212) 444
Division 10 — Miscellaneous matters
Transitional regulations 444
Interpretation Act 1984 not affected 446
Part 30
Transitional matters for *Criminal Law (Mental Impairment) Act 2023*
Part 30 — Transitional matters for Criminal Law (Mental Impairment) Act 2023
Terms used 447
Functions in respect of Board 447
Duty to contact identified person 447
Sch 1
Charter of Mental Health Care Principles
Schedule 1 — Charter of Mental Health Care Principles
More sections below
Source text: opening excerpt
Sourced from the Western Australian Legislation website (legislation.wa.gov.au). Not the authorised version.
Western Australia
Mental Health Act 2014
Western Australia
Mental Health Act 2014
Contents
Part 1 — Preliminary matters
Short title 2
Commencement 2
Act binds Crown 2
Part 2 — Terms and concepts
Division 1 — Definitions and notes
Terms used 3
Notes and examples not part of Act 11
Division 2 — Mental illness
When person has a mental illness 11
Division 3 — Best interests of a person
Matters relevant to decision about person’s best interests 13
Division 4 — Wishes of a person
Matters relevant to ascertaining person’s wishes 13
Division 5 — Communicating with a person
Language, form of communication and terms to be used 14
Part 3 — Objects
Objects 15
Part 4 — Charter of Mental Health Care Principles
Regard to be had to Charter 16
Compliance with Charter by mental health services 16
Part 5 — Decision making capacity and informed consent
Division 1 — Decision making capacity generally
Capacity of adult to make decisions 17
Capacity of child to make decisions 17
Determining capacity to make decisions 17
Division 2 — Informed consent to treatment
Requirements for informed consent 18
People who can give informed consent 18
Determining capacity to make treatment decision 19
Explanation of proposed treatment must be given 19
Sufficient time for consideration 20
Part 6 — Involuntary patients
Division 1 — When a person will be an involuntary patient
Involuntary patient (ss 21–24): A person who is under an involuntary treatment order. An involuntary treatment order is either an inpatient treatment order (which authorises admission and detention at an authorised or general hospital) or a community treatment order (which authorises treatment in the community without consent). Only a psychiatrist may make an involuntary treatment order, and only in accordance with the Act.
Inpatient treatment order (s 22): Authorises a hospital to admit and detain a person to enable treatment to be provided without informed consent. May be made under sections 55(1)(a), 56(1)(a)(i), 72(1)(a), 120(2)(a), 123(1)(a) or 131(2)(a) for authorised hospitals, and under sections 61(1)(a) or 131(2)(a) for general hospitals.
Community treatment order (s 23): Authorises treatment to be provided in the community without consent. May be made under sections 55(1)(b), 56(1)(a)(ii), 61(1)(b), 72(1)(b), 75(1), 89(2)(b) or 90(1)(a).
Authorised hospital: A hospital authorised under section 541 to detain involuntary patients.
Decision-making capacity (ss 13–15): Adults are presumed to have capacity to make decisions unless assessed as incapable (section 13). Children's capacity is assessed differently (section 14). Capacity to make treatment decisions is specifically assessed under section 18. Capacity is decision-specific and time-specific.
Informed consent (ss 16–18): For treatment to be lawful, either informed consent must be given or the person must be an involuntary patient (or supervised person under the Criminal Law (Mental Impairment) Act 2023). Section 16 defines the requirements for valid informed consent, which include understanding the treatment, its purpose, effects and alternatives.
Charter of Mental Health Care Principles (s 11, Schedule 1): All persons and bodies performing functions under the Act must have regard to the Charter. Mental health services must make every effort to comply. The Charter embodies the rights-based framework underpinning the Act.
Who it affects
Involuntary patients: Persons subject to inpatient or community treatment orders are the most directly affected. They lose the right to refuse treatment while under an involuntary treatment order but retain extensive other rights under Part 16.
Voluntary patients: People who consent to treatment or admission. They may not be detained without their consent except while being assessed for an involuntary treatment order.
Children with mental illness (Part 18): Special rules apply. Electroconvulsive therapy cannot be performed on children under 14 (section 194). Children aged 14 and over who are voluntary patients need both informed consent and Mental Health Tribunal approval for ECT (section 195).
Carers and families (Part 17): Carers (as defined by the Carers Recognition Act 2004) have recognised roles and rights. Close family members (section 281) have rights to information and to be heard at Tribunal proceedings. The Act acknowledges that carers are often family members but this is not invariably so (section 280(2)).
Psychiatrists and authorised mental health practitioners: The Act creates significant obligations for these practitioners. Only psychiatrists may make involuntary treatment orders; authorised mental health practitioners may conduct assessments and referrals.
Mental health services: Required to comply with the Charter of Mental Health Care Principles (section 12) and subject to complaints processes (Part 19).
The Mental Health Tribunal (Part 21): The primary oversight and review body. It is constituted by three members a lawyer, a psychiatrist (for adult patients), and a community member for most proceedings.
Key obligations
Criteria for involuntary treatment order (s 25): A person is in need of an inpatient treatment order only if ALL of the following are satisfied:
(a) the person has a mental illness for which they need treatment;
(b) because of the mental illness, there is a significant risk to the health or safety of the person or another person, or a significant risk of serious harm;
(c) the person lacks the capacity required by section 18 to make a treatment decision about the treatment;
(d) treatment in the community cannot reasonably be provided;
(e) the person cannot be adequately treated in a way that involves less restriction than an inpatient treatment order.
For a community treatment order (section 25(2)), condition (d) is reversed (treatment in the community can reasonably be provided) and condition (b) additionally includes "a significant risk of the person suffering serious physical or mental deterioration."
Psychiatrist's preference for least restrictive option (s 24(4)): Before deciding whether to make an inpatient treatment order, a psychiatrist must consider whether the objects of the Act would be better achieved by making a community treatment order. This is a structural requirement to prefer the less restrictive option.
Explanation of rights (ss 244–245): When a patient is admitted or when an involuntary treatment order is made, the responsible person must ensure the patient and their carer, close family member or personal support person are provided with an explanation of the patient's rights.
ECT prohibition for children under 14 (s 194): A person must not perform ECT on a child under 14. This prohibition is absolute. The offence under section 193 provides for a fine of $15,000 and imprisonment for 2 years.
Pre-referral assessment (s 39): A person cannot be referred for examination under the Act without an assessment being conducted. This prevents arbitrary detention on referral alone.
Copy of referral to be filed (s 43): Within required time, a copy of every referral must be filed. Timeframes apply.
Powers and discretions
Psychiatrist involuntary treatment orders: May make inpatient or community treatment orders in accordance with section 25 criteria. Must prefer the less restrictive option. May revoke orders.
Chief Psychiatrist (Part 23): Appointed under section 508(1). Has regulatory and oversight functions over the mental health system, including issuing guidelines under section 547.
Authorised mental health practitioners (s 539): Designated by order of the Chief Psychiatrist. May conduct assessments and referrals.
Mental Health Tribunal (Part 21): Has jurisdiction to review involuntary treatment orders, approve regulated treatments (ECT for children, psychosurgery), determine applications and hear objections. May make, vary or revoke orders.
State Administrative Tribunal (Part 22): May review certain Tribunal decisions on appeal.
Chief Mental Health Advocate (Part 20): Appointed under section 349. Provides advocacy services for people with mental illness. Independent function.
Transport orders (Part 10): Authorise the transport of a person to an authorised hospital for examination or treatment. Police and authorised officers may use reasonable force to execute transport orders.
Apprehension powers (Part 11): Police and authorised officers may apprehend a person who appears to have a mental illness and who presents a risk, and take the person to an authorised hospital for examination.
Penalties and enforcement
ECT offence (s 193): Performing ECT except in accordance with sections 194 to 199 fine of $15,000 and imprisonment for 2 years.
Psychosurgery restrictions (Part 14, Division 2): Psychosurgery may only be performed with Mental Health Tribunal approval. Breach of psychosurgery restrictions is an offence.
Obstruction offences (Part 27): Obstruction of authorised officers, mental health advocates, and others exercising functions under the Act is an offence.
Non-compliance with community treatment orders: The Act provides mechanisms for dealing with failure to comply with community treatment order conditions, including referral for examination and revision of the order.
Complaints system (Part 19): The Health and Disability Services Complaints Office Director investigates complaints about mental health services. The Director may investigate and make recommendations. The complaints system is distinct from the Tribunal review process.
Process and timelines
The central involuntary treatment pathway operates as follows:
Assessment: An authorised mental health practitioner (or medical practitioner) conducts an assessment to determine whether a referral for examination should be made (section 39). No referral without an assessment.
Referral: If the practitioner is satisfied, they make a referral for examination at an authorised hospital or other place (section 26). The period of a referral made under section 26(2) or (3)(a) is set by section 44.
Detention for examination: On arrival at the authorised hospital, the person may be detained for examination by a psychiatrist (sections 52–60). Time limits apply.
Examination by psychiatrist: The psychiatrist examines the person (sections 54, 60). Must consider section 25 criteria.
Psychiatrist's decision: After examination, the psychiatrist must:
make an inpatient treatment order or community treatment order if criteria are met (section 55); or
discharge the person if criteria are not met.
Tribunal review: An involuntary treatment order is subject to automatic or on-application review by the Mental Health Tribunal (Part 21).
Revocation or continuation: The Tribunal may revoke or vary the order. The psychiatrist may also revoke the order at any time if criteria are no longer met.
Interactions with other law
Criminal Law (Mental Impairment) Act 2023 (WA): Expressly referenced throughout. "Supervised persons" required to be detained at an authorised hospital under the CLMI Act are subject to certain provisions of this Act (sections 22(2), 196, 243). Part 30 contains transitional provisions for the CLMI Act.
Carers Recognition Act 2004 (WA): The definition of "carer" in section 280(1) is drawn from section 5 of that Act. The "Carers Charter" under that Act is referenced in the complaints Part (section 305).
Health and Disability Services (Complaints) Act 1995 (WA): The Complaints Office under this Act is the body that receives and investigates complaints about mental health services under Part 19.
State Administrative Tribunal Act 2004 (WA): Part 22 provides for State Administrative Tribunal review of certain Mental Health Tribunal decisions.
Guardianship and Administration Act 1990 (WA) (GAA Act): Advance health directives under Part 9B of the GAA Act may provide treatment decisions relevant to mental health treatment (section 4 definition of "advance health directive"). Nominated persons (nominated under the GAA Act) have roles in Tribunal proceedings.
Interpretation Act 1984 (WA): Section 677 preserves the operation of the Interpretation Act 1984 alongside this Act.
Gotchas
All five criteria for involuntary treatment must be satisfied, not just some. Section 25(1) and (2) use the phrase "only if all of these criteria are satisfied." A single criterion being unmet means an involuntary treatment order cannot lawfully be made. Clinicians and tribunal members must address each criterion independently.
Inpatient treatment orders require that community treatment "cannot reasonably" be provided. Section 25(1)(d) establishes a gatekeeping requirement for inpatient orders. A psychiatrist who makes an inpatient order without first genuinely considering whether a community treatment order would suffice (section 24(4)) is not complying with the Act.
ECT requires Mental Health Tribunal approval for children over 14, even with informed consent. Section 195 requires both informed consent AND Tribunal approval for ECT on children aged 14–17 who are voluntary patients. Parental consent alone is not sufficient to authorise ECT without the Tribunal's approval.
The rights explanation must be given to carers and family members, not only the patient. Section 245 requires the responsible person to explain the patient's rights to their carers, close family members, and personal support persons. This obligation exists independently of, and alongside, the obligation to explain rights to the patient under section 244.
Complaints to the Complaints Office are separate from Tribunal review. The complaints system in Part 19 (administered by the Health and Disability Services Complaints Office Director) deals with complaints about the conduct of mental health services. The Mental Health Tribunal deals with the lawfulness and appropriateness of treatment orders. These are parallel systems. A complaint to the Complaints Office does not stay or affect a Tribunal proceeding.
Supervised persons under the CLMI Act 2023 are distinct from involuntary patients. Persons required to be detained at an authorised hospital under the Criminal Law (Mental Impairment) Act 2023 are "supervised persons" they are not involuntary patients within this Act's definition but are subject to certain provisions (such as ECT rules under section 196). The distinction matters for understanding which review processes apply.
Practical examples
Scenario 1: Assessment and referral sequence
A person presents to a community health centre in a distressed state, expressing that they hear voices telling them to harm themselves. An authorised mental health practitioner conducts a clinical assessment (required by section 39). Satisfied that the person meets the referral criteria, the practitioner makes a referral for examination at the nearest authorised hospital (section 26). The referral has a limited duration under section 44. The person is taken to the hospital where a psychiatrist examines them and, if all five criteria in section 25 are satisfied, makes an involuntary treatment order.
Scenario 2: Community treatment order over inpatient order
A person with a known psychotic illness is deteriorating in the community and there is a significant risk of serious physical deterioration (section 25(2)(b)(iii)). Before deciding to make an inpatient treatment order, the psychiatrist must consider whether a community treatment order would better achieve the objects of the Act (section 24(4)). If treatment can reasonably be provided in the community and a community treatment order is the least restrictive adequate option, an inpatient order would be unlawful.
Scenario 3: ECT for a 16-year-old voluntary patient
A 16-year-old is a voluntary patient at an authorised hospital. The treating psychiatrist believes ECT would be the most effective treatment for the patient's severe depression. Informed consent is obtained from the patient's parent (as section 14 and 15 allow for children). However, section 195(2)(b) also requires the Mental Health Tribunal to approve the procedure. The hospital must apply to the Tribunal for approval before ECT can be performed. Performing ECT without Tribunal approval (or on a child under 14) is an offence under section 193 carrying a fine of $15,000 and up to 2 years imprisonment.
Scenario 4: Carer's right to know
A carer has been providing support to a family member with schizophrenia. When the family member is admitted under an inpatient treatment order, section 245 requires that the carer be given an explanation of the patient's rights under the Act. The carer is also entitled under Part 17 to information about the patient's treatment and to be heard in Tribunal proceedings, subject to the patient's consent under sections 286–288 in most circumstances.