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Mental Health
Information on the role of the Family Court under the law on mental health
What is the law on mental health?
The Mental Health (Compulsory Assessment and Treatment) Act 1992 defines the circumstances in which a person may be required to undergo compulsory psychiatric assessment and treatment. This Act aims to ensure that both vulnerable individuals and the public are protected from harm. It defines the rights of patients and proposed patients and aims to protect those rights.
When does the Act apply?
Anyone over the age of 18 who believes that a person may be suffering from a mental disorder may apply in writing to the Director of Area Mental Health Services for an assessment of that person.
The application must state the relationship of the applicant with the person and the grounds on which the applicant believes the person to be suffering from a mental disorder.
The application must be accompanied by a certificate issued by a medical practitioner stating that the medical practitioner has examined the person within the last 3 days and considers there are reasonable grounds for believing the person may be suffering from a mental disorder.
A person cannot be required to undergo compulsory assessment or treatment by reason only of:
- Political, religious or cultural beliefs;
- Sexual preferences;
- Criminal or delinquent behaviour;
- Substance abuse;
- Intellectual handicap.
What is a mental disorder?
Mental disorder means an abnormal state of mind of such a degree that it poses a serious danger to the health or safety of the person or of others, or seriously diminishes the capacity of the person to take care of himself or herself. The term mental disorder is a legal definition rather than a medical definition. It includes but is not restricted to mental illness
What happens when an application for assessment is made?
Upon receiving an application for assessment, the Director of Area Mental Health Services nominates a medical practitioner to conduct the assessment, and arranges a time and place for an assessment examination of the proposed patient. The Director of Area Mental Health Services must give to the proposed patient written notice requiring the proposed patient to attend the assessment examination at the specified place and time.
During this initial assessment examination, the medical practitioner must decide whether or not there are reasonable grounds for believing that the patient is mentally disordered and that it is desirable that the proposed patient be required to undergo further assessment and treatment. A certificate of preliminary assessment will be issued at the end of examination.
If the medical practitioner believes there are reasonable grounds for further assessment and treatment the patient must be given written notice that they are required to undergo a period of assessment and treatment by a responsible clinician. The period ends 5 clear days after the patient receives notice.
Attendance during the assessment period can be enforced by a warrant issued by a Court.
If reasonable grounds exist to believe the patient is mentally disordered, the responsible clinician must issue a certificate of further assessment. Written notice must be given to the patient requiring them undergo further assessment and treatment. This second period of assessment runs for 14 days after the patient receives notice.
A certificate of final assessment must be issued before the end of the second period. If the patient is found not fit for release, the responsible clinician must make an application for a compulsory treatment order. The patient can be held for a further 14 days after the expiry of the first 14-day period. If a Court does not determine the application before the end of the second 14-day period, the patient must be released.
Attendance during the assessment period can be enforced by a warrant issued by a Court.
Patients' rights
There are a number of requirements that the responsible clinician for the assessment and treatment of the patient must satisfy during this period. In addition, patients have a number of rights which must be protected. When a person becomes a mental health patient, he or she must be given a written statement of his or her rights as a patient. Patients also have a number of entitlements including:
- An entitlement to respect for cultural identity;
- An entitlement to appropriate medical treatment;
- An entitlement to an explanation of the expected effects of any treatment offered to the patient;
- An entitlement to seek a consultation with a psychiatrist of his or her own choice in order to get a second opinion;
- An entitlement to request a lawyer to advise the patient on his or her status and rights.
For further information on these requirements and the rights of patients, you can consult the Ministry of Health Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992.
What happens when the assessment period ends?
If the responsible clinician for the patient believes that the patient is fit to be released from compulsory treatment, that clinician must direct that the patient be released from that status without delay.
If, during the second period of assessment, the responsible clinician for the patient believes that the patient is not fit to be released from compulsory status, the clinician must apply to the Court for a compulsory treatment order.
What is a compulsory treatment order?
A compulsory treatment order is a Court order requiring the patient to undergo treatment for his or her mental disorder. The Court can make either a community treatment order or an inpatient order.
Under an inpatient order the patient is required to remain at the hospital specified in the order for the duration of the treatment. The purpose of an inpatient order is to ensure adequate treatment in circumstances where this can only be achieved if the patient remains at the hospital.
Under a community treatment order the patient is required to attend at the patient's place of residence, or at some other place specified in the order, and to accept treatment. Community treatment orders are designed for patients with mental disorders who do not need to remain at a hospital for continued treatment.
If the Court decides to make a compulsory treatment order, it must make a community treatment order unless it considers that the patient cannot be treated adequately as an outpatient, in which case the Court must make an inpatient order.
What happens when a clinician applies for a compulsory treatment order?
Wherever practicable, an application for a compulsory treatment order will be heard and determined by a Family Court Judge. Alternatively, such an application may be heard by a District Court Judge.
The Judge will arrange to examine the patient as soon as practicable and no later than 14 days after the application is filed.
At the examination, the Judge will identify himself or herself to the patient, explain the purpose of the visit, and discuss with the patient the patient's situation, the proposed course of assessment and treatment, and the patient's views on these matters.
As well as examining the patient, the Judge will consult with the responsible clinician, and with at least one other health professional involved in the case. The Judge may also consult other persons regarding the patient's condition.
If the Judge is satisfied that the patient is fit to be released from compulsory status, the Judge will order that the patient be released from that compulsory status without delay.
If the Judge is not satisfied that the patient is fit to be released from compulsory status, the Judge will conduct a court hearing to determine the responsible clinician's application for a compulsory treatment order.
The Court may request that a qualified person prepare a report on any relevant aspect of the patient's condition. The Court may also call witnesses to give evidence concerning the patient. Normally, the patient will be present at the hearing.
The hearing is not open to the public. The only people who may attend are:
- The Judge;
- Officers of the Court;
- Parties to the proceedings and their barristers and solicitors, and any other person nominated by the patient;
- Witnesses;
- Any other person to whom the certificate of final assessment was sent; and
- Any other person whom the Judge permits to be present.
If the Judge believes a compulsory treatment order is necessary, either a community treatment order or an inpatient order will be made.
What happens once an order is made?
A compulsory treatment order expires after six months. If the responsible clinician believes that the compulsory treatment order is still necessary, they can apply to the Court for a six month extension of the order.
If the Court grants a six month extension, and at the end of that six month period the responsible clinician believes the compulsory treatment order is still necessary, they can apply to the Court for a further extension of the order.
If the Court grants a further extension it has effect indefinitely.
Can the patient apply to the court for a review?
At any time during the first two examination periods, and before the responsible clinician has applied for a compulsory treatment order, the patient may apply to the Court to have their condition reviewed.
The Judge reviewing the patient's condition will follow the same procedure adopted for an examination following an application by the responsible clinician for a compulsory treatment order.
If the Judge decides that the patient is fit to be released from compulsory treatment status, then the patient must be discharged without delay, bringing the assessment process to an end.
Legal Aid
If you are eligible, legal aid is available for all Family Court matters except dissolution (divorce). To find out if you are eligible for legal aid, talk to your lawyer or contact your local Community Law Centre.
Further information
For further information on mental health matters you can contact the Ministry of Health or the Mental Health Commission.
For further information on role of the Family Court under the Mental Health (Compulsory Assessment and Treatment) Act contact your local Family Court.