Being treated under the Mental Health Act 2016

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• Watch responsibilities and rights.

What is a mental illness or condition under the Act

Mental illness is a defined term and has a specific meaning under the Mental Health Act 2016.

The Act states a mental illness means a condition characterised by a clinically significant disturbance of thought, mood, perception or memory.

A decision that a person has a mental illness must be made according to internationally accepted medical standards.

In some situations, the Act applies to people with an intellectual disability whether or not they have a mental illness.  For example, the Mental Health Court can make orders for people with an intellectual disability who have been charged with an offence.

The powers and functions of the Mental Health Act 2016 can only be used if:

• the person has a mental illness as defined by the Act
• it's clinically appropriate
• it's necessary for a person's wellbeing.

Find out more about the meaning of mental illness under the Act on the Queensland Legislation website.

You can also learn more about the scope of the Mental Health Act 2016 and read the Queensland Health Guide to the Act.

Capacity to make decisions and consent

Under the Mental Health Act 2016, you're presumed to be able to make decisions about your own mental health care. This is called having capacity to make decisions.

If you're able to make decisions with the assistance of someone else, you are taken to have capacity to make these decisions. This is called supported decision-making.

If you're able to make decisions about your own health care, you have the right to consent, or not consent, to treatment and care.

Treatment authorities

If you're not able to make decisions about your treatment, an authorised doctor may provide you with treatment and care without your consent under a treatment authority made under the Mental Health Act 2016.

Strict criteria apply to making a treatment authority. An authorised doctor can only make a treatment authority for you if:

• you have a mental illness
• you do not have capacity to make decisions about your treatment and care for the illness
• there is an imminent risk of serious harm to you or others, or there is a risk of you suffering serious mental or physical deterioration.

A treatment authority cannot be made for you if you're able to make decisions about your own mental health care.

The 'less restrictive way' and supported decision making

If you do not have capacity to make decisions about your treatment and care, you have a right to be treated in a 'less restrictive way'.

Being treated in a less restrictive way means you're treated with your own consent, or the consent of someone else, rather than being treated involuntarily under a treatment authority under the Mental Health Act 2016.

The ‘less restrictive ways’ of treatment are:

• under an advance health directive that you have made
• with the consent of a personal guardian appointed for you under guardianship laws
• with the consent of an attorney who you have appointed to make decisions about your treatment and care
• with the consent of a statutory health attorney, such as a spouse who has a close and continuing relationship with you
• with the consent of your parents if you are under 18 years of age.

If you have made an advance health directive, but a treatment authority is made for you, a doctor will explain to you why the advance health directive was not used to treat you, and record this in your health record.

This may apply if your advance health directive does not provide consent for the treatment and care you need to get well again.

Your views, wishes and preferences will still be considered by a doctor, even if a treatment authority is made for you.

The doctor will explain why any of these views, wishes and preferences were not followed and record this in your health record.

Learn more about advance health directives or power of attorney and guardianship.

Involuntary treatment

If you're being treated under a treatment authority, you can receive treatment while living in the community, for example, while living at home, unless your treatment and care needs cannot be met that way.

If you're very unwell, you may need to be treated in a hospital until you're well enough to go home.

If you're being treated in a hospital, a doctor needs to decide whether you can leave the hospital on a limited basis. This is called limited community treatment. The purpose of limited community treatment is to support your recovery by transitioning you to living in the community with appropriate treatment and care.

A doctor must end your treatment authority if the treatment criteria no longer apply, or there is a less restrictive way of treating you.

This requirement does not apply if you have regained capacity to make decisions but your capacity is not stable, that is, where you gain and lose capacity over short periods of time.

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