Mental Health Act 2014

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.

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.

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.

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.

The central involuntary treatment pathway operates as follows:

1. 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.

2. 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.

3. 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.

4. Examination by psychiatrist: The psychiatrist examines the person (sections 54, 60). Must consider section 25 criteria.

5. 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.

6. Tribunal review: An involuntary treatment order is subject to automatic or on-application review by the Mental Health Tribunal (Part 21).

7. 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.

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.

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.

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.