Mental health and wellbeing

Mental Health Act 2016

A mental illness is legally defined under the Mental Health Act 2016 as “….a condition characterised by a clinically significant disturbance of thought, mood, perception or memory”.

The Mental Health Act 2016 provides for the involuntary assessment, treatment and protection of people who have a mental illness, while at the same time:

• safeguarding their rights and freedoms and
• balancing their rights and freedoms with the rights and freedoms of other people.

The Mental Health Act 2016 only affects a small number of people with mental illness (as it doesn’t generally provide for voluntary treatment for mental illness). It may apply to your situation if:

• there are concerns about your mental health and it’s determined there is no less restrictive way to ensure you receive appropriate treatment for your mental illness
• you’ve been charged with a criminal offence and there are concerns about your mental state at the time of the offence or fitness for trial.

The Mental Health Act 2016 s 3(1) states its main objectives are:

• to improve and maintain the health and wellbeing of people who have a mental illness who do not have the capacity to consent to be treated
• to enable people to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial
• to protect the community if people diverted from the criminal justice system may be at risk of harming others.

The Act also identifies you’re not considered mentally ill because you:

• hold or refuse to hold a particular religious, cultural, philosophical or political belief or opinion
• are a member of a particular racial group
• have a particular economic or social status
• have a particular sexual preference or sexual orientation
• engage in sexual promiscuity
• engage in immoral or indecent behaviour
• take drugs or alcohol
• have an intellectual disability
• engage in antisocial behaviour or illegal behaviour
• are or have been involved in family conflict
• have previously been treated for a mental illness (voluntarily or involuntarily).

A decision that a person has a mental illness must be made in line with internationally accepted medical standards.

Only an authorised doctor can assess whether you have a mental illness after another doctor or authorised medical practitioner recommends an assessment.

Visit the Queensland Government website for more information about the Mental Health Act 2016 and general information mental health and wellbeing.

Getting help

Support services are available if you or someone you care about is distressed, in crisis or needs treatment for a mental illness. Find a mental health service near you.

If you need help, talk to your doctor and ask for an assessment or referral. Some doctors may have special training in the mental health field. Search for a medical or allied health professional specialising in mental health in your area.

If you need to talk to someone immediately, Lifeline’s Crisis Counselling Line (13 11 14) or beyondblue (1300 224 636) are available 24 hours a day, 7 days a week.

The Queensland Government has more information about help lines, counselling and support services available to you.

Assessment and treatment

Voluntary assessment

A voluntary patient usually asks for treatment, and can choose to leave hospital at any time. If they decide not to continue treatment and a doctor thinks they may hurt themselves or someone else, the doctor can make them stay in hospital or continue to get treatment, even without their agreement—this is called involuntary treatment.

Involuntary assessment

An involuntary assessment usually occurs if a person's mental illness stops them from recognising they need help, and they may need to go to a hospital or a mental health service to be assessed without their consent.

Making a treatment authority

A doctor or authorised mental health practitioner may examine you to decide if a recommendation for assessment should be made. If a recommendation for assessment is made, it allows an authorised doctor to detain you and assess if a treatment authority should be made. A treatment authority allows you to be treated as an involuntary patient.

The authorised doctor making the assessment isn't usually the same doctor who recommended you for assessment. If the treatment authority is made by an authorised doctor (who isn't a psychiatrist) then it must be reviewed within 3 days by an authorised psychiatrist. This can be extended to 7 days in rural and remote areas.

A treatment authority can only be made if the authorised doctor is satisfied that:

• the treatment criteria in the Mental Health Act 2016 applies to you and
• there's no less restrictive way for you to receive treatment and care.

The treatment criteria are:

• the person has a mental illness and
• the person doesn't have capacity to consent to be treated for the illness and
• because of the person’s illness, it's likely to result in:
  • imminent serious harm to the person or others or
  • the person suffering serious mental or physical deterioration.

There are rules about how long you can be held while a doctor decides whether you should be recommended for assessment:

• You can be held for up to 6 hours at a public sector health service facility, or no more than 1 hour at any other place.
• This can be extended by no more than a total of 12 hours by a doctor or authorised mental health practitioner.

If a doctor needs to decide whether to make a treatment order, then you can be held for 24 hours. This can be extended to no more than 72 hours if the authorised doctor considers it necessary to finish the assessment.

If a treatment authority is made, the authorised doctor must decide whether you'll be treated in the community or as an inpatient (your personal situation will be considered when making this decision). If you’re in the community and your treatment and care needs, your safety and the safety of others can't reasonably be met, then the authorised doctor can choose to treat you as an inpatient.

The Queensland Government website has more information about:

• hospital admissions for mental illness
• decision making for people with mental illness
• legal options and help.

Reviewing a treatment authority

The Mental Health Review Tribunal must review a treatment authority within 28 days of the authority being made. The next 2 reviews will be 6 monthly, and then every 12 months.

Rights of patients and others

The Statement of Rights (PDF, 997KB) has important information about patients' rights under the Mental Health Act 2016, and applies to:

• involuntary patients (eg a person subject to a treatment authority made by a doctor under the Mental Health Act 2016)
• voluntary patients being treated in a mental health service
• the patient’s family, carers and other support persons.

As a patient, you have the right to:

• have a written Statement of Rights prepared and explained to you, and a copy given to you, your nominated support person or family carer if requested
• reasonable steps being made to ensure you understand the information given to you, and to have explanations given to your nominated support person
• visits from your family, carer and other support people
• visits from a health practitioner legal or other adviser at any reasonable time
• request a second opinion about your treatment and care—this may be made by someone on your behalf
• have an independent patient rights advisor appointed.

Making a complaint about a health service provider

Before making a complaint, try talking with your health service provider, as this can be the best way to address your concerns or fix a problem.

If you’re still unhappy with their response or you’re not comfortable contacting them directly, the Office of the Health Ombudsman (Queensland Health's service complaints agency) may be able to help. Call them on 133 646 or email them.

Do I need legal advice?

You may need legal advice if:

• you’ve been referred for an involuntary assessment
• you’ve been placed under a treatment authority
• you’re preparing to appear at the Mental Health Review Tribunal
• you’ve been charged with a criminal offence and are going to the Mental Health Court or you want to be referred to the Mental Health Court.

How to get legal advice

We don’t give advice about general mental health matters. Contact a mental health or counselling service near you for help and advice.

We may give legal advice if you’ve been charged with an offence while diagnosed with a mental illness.

We may be able to provide representation:

• if you are appearing in the Mental Health Court
• if you are appearing in the Mental Health Review Tribunal for matters including:
  • electroconvulsive therapy (ECT) applications
  • all hearings involving minors
  • hearings of a person’s fitness for trial
  • when the Attorney-General is represented.

We also may be able to give advice on appeals from matters in the Mental Health Review Tribunal to the Mental Health Court.

The following organisations may also give you legal advice:

Mental Health Legal Service (Queensland Advocacy for Inclusion) provides legal advice and casework services for people who have matters before the Mental Health Review Tribunal, including treatment authorities, orders, reviews of forensic orders, fitness for trial and more.

LawRight Mental Health Law Practice gives legal information and advice about involuntary treatment orders, the Mental Health Review Tribunal and other associated civil law issues arising as a result of a person's mental health problem (eg housing or credit or debt law issues). The service also gives help and advocacy services to clients a treatment authority and ECT hearings in the Mental Health Review Tribunal.

Community legal centres give legal advice on a range of topics. Contact them to find out if they can help with your matter.

Queensland Law Society can refer you to a specialist private lawyer for advice or representation.

Who else can help?

These organisations may be able to help. They don’t give legal advice.

beyondblue is a 24 hour a day, 7 days a week support service for people with depression and anxiety. They have information and resources to help you, and can make referrals to mental health professionals.

Lifeline is a crisis counselling line giving support 24 hours a day, 7 days a week.

Suicide Call Back Service is a free nation-wide telephone support service for people at risk of suicide, their carers and those bereaved by suicide.

headspace helps young people (12-25 years) who are going through a tough time to access health advice, support and information.

Office of the Health Ombudsman deals with complaints about health care providers, including mental health care services.

Queensland Health has information about the Mental Health Act 2016. They also deliver integrated services, including community and mental health services.

Office of the Public Guardian is an independent statutory body responsible for protecting the rights and interests of adults who can't make independent decisions.

Association of Relatives and Friends of the Mentally Ill has support services for families and friends of people with mental illness and psychiatric disabilities.

Last updated 10 November 2022

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