MHCC Mental Health Rights Manual

Change font size: SmallerReset textLarger

Chapter 4 Section F: Compulsory treatment in the community under the Mental Health Act 2007

4F.1: Community Treatment Orders (CTO)

A Community Treatment Order (CTO) is a legal order made by the Mental Health Review Tribunal (MHRT). 

This section outlines: Community Treatment Order

A Magistrate of a local Court also has the power under the Mental Health (Forensic Provisions) Act 1990 (NSW) to make a CTO under the Mental Health Act 2007 (NSW). For more information follow this link to Orders.

The amendments to the Mental Health Act 2007 (NSW) were assented on the 28 November 2014 by way of the Mental Health Amendment (Statutory Review) Act 2014. These changes are now in force. The Mental Health Act 2007 (NSW) now requires the Director of Community Treatment to consult the person subject to a CTO, any designated carer and the principal care provider, before revoking the order. The Act also requires the Director to notify the Tribunal in writing if the Director revokes a CTO or decides not to apply for a further order. Additionally, the Act requires the Director to take all reasonably practical steps to notify the designated carer and the principal care provider of an affected person if a CTO is varied or revoked by the Mental Health Review Tribunal, or an application is made for a further order, or if the Director decides not to apply for a further order.

4F.1.1: When can a Community Treatment Order be made?

The Mental Health Review Tribunal make a Community Treatment Order (CTO):

  •  at a Mental Health Inquiry;
  • at a Review of an Involuntary Patient Order;
  • on an Application being made to the Tribunal by an Authorised Medical Officer of a Mental Health Facility in relation to a voluntary or involuntary patient of that Facility;
  • on an Application being made to the Tribunal by a medical practitioner who is familiar with the clinical history of the person; and
  • on an Application being made by the Director or Deputy Director of a Community Mental Health Facility.

An Application for a CTO can be made in relation to a person who is:

  •  detained as an ‘assessable person’ in a hospital Mental Health Facility prior to a Mental Health Inquiry being conducted;
  • detained as an involuntary patient of a hospital Mental Health Facility following a Mental Health Inquiry at which an Involuntary Patient Order was made;
  • a voluntary patient of a hospital Mental Health Facility;
  • not a patient of a hospital Mental Health Facility, for example, a person living in the community, or a person about to be released from a correctional facility.
  • not already on a CTO; and
  • on a CTO that is about to lapse.

The Mental Health Review Tribunal can put you on a CTO at a Mental Health Inquiry if:

  • It finds you to be a ‘mentally ill person’ as this term is defined in the Mental Health Act 2007 (NSW); and
  • an order for community treatment is the least restrictive alternative consistent with your safe and effective care; and
  • there is a treatment plan proposed by a community Mental Health Facility that is capable of being implemented.

If you have been diagnosed with a mental illness prior to the admission to which the Mental Health Inquiry relates, the Mental Health Review Tribunal must also be satisfied that:

  • (if you have never been on a CTO before, or have not been on a CTO in the 12 months immediately prior to the Inquiry) you have a history of refusing to accept psychiatric treatment, and as a result of that refusal, you have experienced a deterioration in your mental state that has warranted an admission to a hospital Mental Health Facility (whether or not you were admitted in fact); or
  • (if you have been subject to a CTO or a forensic patient in the 12 months immediately prior to the Inquiry) there is a likelihood that you will continue in or relapse into an active phase of mental illness if the CTO is not made.

The Mental Health Review Tribunal can put you on a CTO at a Review of an Involuntary Patient Order or following an Application to the Tribunal if:

  •  an order for community treatment is the least restrictive alternative consistent with your safe and effective care; and
  • there is a treatment plan proposed by a community Mental Health Facility that is capable of being implemented.

If you have diagnosis of mental illness that is prior to the immediate events that led to your admission to hospital and/or to the Application, the Mental Health Review Tribunal must also be satisfied that:

  • (if you have never been on a CTO before, or have not been on a CTO in the 12 months immediately prior to the Inquiry) you have a history of refusing to accept psychiatric treatment, and as a result of that refusal, you have experienced a deterioration in your mental state that has warranted an admission to a Mental Health Facility (whether or not you were admitted in fact); or
  • (if you have been subject to a CTO or a forensic patient in the 12 months immediately prior to the Inquiry) there is a likelihood that you will continue in or relapse into an active phase of mental illness if the CTO is not made.

Note that the Mental Health Review Tribunal does not make an explicit finding that you are a mental ill person as a condition precedent to the making of a CTO, other than at a Mental Health Inquiry. However, such a finding is arguably implicit in the first of the tests applied by the Tribunal, as it must be satisfied that the proposed course of compulsory community based psychiatric intervention and treatment are consistent with your safe and effective care.

4F.1.2: How is the treatment plan developed?

A Community Treatment Plan (Treatment Plan) must set out in general terms an outline of the proposed treatment, counselling, management, rehabilitation and other services that are to be provided to you. It must also set out in specific terms the method by which, the frequency with which, and the place at which these services are to be provided.

A Treatment Plan is prepared by a psychiatric case manager under delegation from the Director or Deputy Director of a Community Mental Health Facility that will be responsible for implementing the Community Treatment Order, if made, and must be presented to the Mental Health Review Tribunal for approval.

The Mental Health Act 2007 (NSW) requires that, if it is proposed that you be put on a Community Treatment Order, every effort that is reasonably practicable is made to involve you in the development of the Treatment Plan. However, if you refuse to cooperate in the development of the Treatment Plan, it can be developed without your involvement. Even if you do become involved, the ultimate decision about what the Treatment Plan includes will be taken by the Mental Health Facility, even if you disagree with what is proposed.

After discussing the Treatment Plan with you, the case manager ( sometimes called care coordinator) or a staff member from the Community Mental Health Facility, along with the doctor and/or social worker in hospital (if you are currently a patient of a Mental Health Facility), will finalise the Treatment Plan. Case managers come from several different educational backgrounds including social worker, psychology, OT and mental health nursing.

The Treatment Plan usually involves a community mental health worker (Case Manager) meeting with you regularly to review your mental state and to assist you with any day to day issues (for example in relation to housing, employment, and rehabilitation). The frequency of these appointments will depend on your situation, but usually you will be required to see your case manager at least once every month. These meetings will usually occur at the Community Mental Health Centre, but may be at your home if you agree to this, and your case manager also agrees.

Sometimes Treatment Plans will also require you to attend the Community Mental Health Centre, hospital clinic, or your General Practitioner to be administered medication, particularly if this is by way of intramuscular injection. This may also occur at your home if you agree to this, and your case manager also agrees.

The Treatment Plan will also require you to meet regularly with your psychiatrist or his or her delegate for psychiatric reviews. The frequency of these appointments will depend on your situation, but usually you will be required to see your psychiatrist at least once every 3 months. These meetings will usually occur at the Community Mental Health Centre, but may be at your home if you agree to this, and your psychiatrist also agrees.

Depending upon the type of medication you are prescribed, and other factors, Treatment Plans may also impose other obligations on you, including:

  • to have blood tests to establish is your medication is at a safe and effective (or therapeutic) level;
  • to have urine drug screens to test for certain substances where the ingestion of these substances is likely to counteract your prescribed psychiatric medication and/or otherwise lead to a relapse in your mental state;
  • to participate in rehabilitation, counselling and other services necessary for the recovery and maintenance of your mental health.

Whilst the Act states that a treatment plan for an affected person can include an obligation to engage in counselling, rehabilitation and any similar services as part of the treatment plan; most generally this is expressed by way of encouragement rather than as an obligation because it is thought that the individual will only benefit if they willingly engage in such services and programs.

Note that a treatment plan can’t impose an obligation on you to do something that is unrelated to your mental health condition. For example, a treatment plan could not require you to attend a dentist, visit the GP or take medication for a physical health condition.

4F.1.3: How is the Community Treatment Order made and for how long?

If an application is made for a Community Treatment Order for you, you must be told in advance when the Mental Health Review Tribunal will hear the Application and you must be given a copy of the proposed Treatment Plan. The person who made the application is responsible for giving you this notice.

How much notice you should be given will depend on your situation and how the notice is given (that is, whether it is handed to you in person, or sent to you by post). However, at the least, the period of notice must be ‘reasonable.’ If you don’t think you have been given enough notice of the hearing you should seek legal advice from a solicitor at the Mental Health Advocacy Service who will be able to advise you as to the requirements for notice in your case and what to do if there has been insufficient notice.

The participants in the hearing before the Mental Health Review Tribunal will depend on the circumstances in which the Application for a Community Treatment Order has been made.

If you are a patient in a hospital Mental Health Facility, the Applicant for the Order will usually be represented by an Authorised Medical Officer. This will usually be a Registrar, but in some cases a Consultant Psychiatrist or Career Medical Officer will attend the hearing. There will usually also be a nursing representative, and sometimes also, a hospital based social worker, psychologist, occupational therapist, or rehabilitation professional. The Mental Health Review Tribunal will usually expect a representative of the Community Mental Health Facility that will be responsible for implementing the Community Treatment Order, if made to attend the hearing.

If you are not a patient in a hospital Mental Health Facility, the Applicant for the Order will usually be represented by the intended Case Manager of the Community Mental Health Facility that will be responsible for implementing the Community Treatment Order, if it is made. Sometimes a Consultant Psychiatrist, other medical practitioner, psychologist, occupational therapist or social worker will also participate.

You also have a right to attend and participate in the hearing and the Mental Health Review Tribunal will expect you to be present. It is very important that you do participate so that the Mental Health Review Tribunal is aware of your views before it makes its decision about the Application. If you do not attend the hearing, the Mental Health Review Tribunal has the power to hear the Application in your absence. You cannot avoid a Community Treatment Order being made by not attending the hearing. If there is a good reason why you cannot attend the hearing (for example, it clashes with another important obligation) you should ask for the hearing to be rescheduled or adjourned to a date when you can attend.

Other people also have the ability to attend the hearing unless the Mental Health Review Tribunal refuses to allow them to attend and participate. This includes members of your family, friends, patient advocates, and other lay advocates. It also includes staff of non-government agencies that may be involved in your support in the community.

You have a right to be legally represented at a hearing of an Application for a CTO. If this Application is made at a Mental Health Inquiry you will be provided with legal representation by the Mental Health Advocacy Service. However, legal aid is not automatically available for hearing in relation to any other Application for a CTO. It is only available if you specifically apply for legal aid and that Application is granted following consideration of your financial means and the merit of your application for aid.

The maximum length of time for which a Community Treatment Order may be made is 12 months. However, most orders are made for period of six months. In deciding how long a Community Treatment Order should be, the Mental Health Review Tribunal must take into account the length of time it will take to stabilise your mental health condition, and the length of time it will take to establish, or re-establish a therapeutic relationship between you and your case manager.

There is no limit to the number of CTO’s that may be made for you. Sometimes an Application to the Mental Health Review Tribunal for a further CTO will be made before a current CTO lapses. If subsequent Applications are granted by the Mental Health Review Tribunal you may continue to be subject to compulsory treatment in the community for an extended period of time.

If you are subject to an existing CTO, or were previously subject to a CTO, the Mental Health Review Tribunal will consider the effectiveness of that Order as one of the factors in determining if it should make a new order.

4F.1.4: What is the effect of a Community Treatment Order and what happens if you don't comply with it?

A Community Treatment Order (CTO) authorises compulsory care for a person living in the community. It typically requires the person to engage with a Case Manager and Psychiatrist on a periodic basis for mental health reviews, and to accept prescribed medication and other intervention and treatment for their mental health condition. This could include rehabilitation and counselling. However most treatment plans express such inclusions as goals to be encouraged, beneficial only if the person willingly participates. A CTO can also require a person to do other things related to their mental health care. For example, it might require the person to accept blood tests for the purpose of monitoring the safety and effectiveness of medication, or urine drug screens to test for the presence of substances that may inhibit the effectiveness of psychiatric medication and lead to relapse.

A person who is subject to a CTO is legally obliged to comply with the obligations imposed on them by the CTO. Failure to comply with these obligations may lead to a breach of the CTO. This could result in the administration of medication using reasonable force at a Community Mental Health Facility, or to the person’s admission to a hospital Mental Health Facility where treatment may be administered with reasonable force if necessary.

If you fail to comply with an obligation imposed upon you by a CTO, and:

  • the Community Mental Health Facility has taken all reasonable steps to implement the CTO; and
  • there is a significant risk of deterioration in the your mental or physical condition;

the Director of the Community Mental Health Facility responsible for implementing the order may do the following things:

 Firstly, inform you that any further refusal to comply with the order will result in you being taken to a Community or hospital Mental Health Facility where you will be treated. This is referred to as a “verbal warning”.If you still do not comply, the Director may send you a letter stating you have breached the order. This is called a “breach notice”. The breach notice will require you to accompany a member of staff of the Community Mental Health Facility to receive treatment in accordance with the CTO, or to a hospital Mental Health Facility. It will also warn you that the assistance of the NSW Police Force may be obtained to ensure your compliance with the CTO.

 If you still do not comply, the Director may make a written ‘breach order” that will require you to be taken, usually by NSW Police, to a Mental Health Facility for treatment. A member of the NSW Police Force, acting on a breach order, is entitled to enter premises and apprehend you without a warrant. 

If you are detained in a hospital Mental Health Facility because you have breached a CTO, you must be assessed by an Authorised Medical Officer at that Facility within 12 hours, and that Officer must determine if you are a mentally ill or a mentally disordered person. The Authorised Medical Officer has the power to require you to receive treatment on a accordance with your CTO and may authorise reasonable force to ensure that this occurs.

If the Authorised Medical Officer determines that you are a mentally ill or mentally disordered person for whom no other care or a less restrictive kind, consistent with your safe and effective care is available, you can continue to be detained in hospital for further observation and treatment until either:

  • (if you are mentally ill) the term of your CTO lapses or you are discharged from the Mental Health Facility; or
  •  (if you are a mentally disordered person) for a period not exceeding three days (not including weekends and public holidays), the term of your CTO lapses, or you are discharged from the Mental Health Facility.

If the term of your CTO has not expired at the time you are discharged from a hospital Mental Health Facility, your CTO comes back into force upon your discharge.

If you are detained in a Mental Health Facility because you have breached your CTO and you remain in that Facility for a period of three months the Authorised Medical Officer must present you for review by the Mental Health Review Tribunal. At its review the Tribunal must determine if you continue to be a mentally ill person within the meaning of the Mental Health Act 2007 (NSW), and if there is any less restrictive care available consistent with your safe and effective care. As a result of its Review, the Tribunal may discharge you subject to the terms of your CTO, authorise your continued detention in hospital for the unexpired term of your CTO, or it may make an Involuntary Patient Order authorising your continued detention in hospital.

4F.1.5: Can you have a Community Treatment Order changed or cancelled?

You or your case manager, or any other person who could have applied for the Order can apply to the Mental Health Review Tribunal (MHRT) to have a CTO changed (‘varied’) or cancelled (‘revoked’). The MHRT is unlikely to change or cancel an order unless circumstances have changed significantly since the order was made or there is new information available that wasn’t available when the Order was originally made. If you want to have your CTO varied or revoked by the MHRT, it is advisable for you discuss this with your Case Manager first explaining the reasons why you want this.

The MHRT is required to base its decisions on the evidence before it. Consequently, unless you are able to obtain a different assessment or opinion from a psychiatrist (preferably) or another health care professional, the MHRT will only have the evidence and opinions of the community mental health team upon which to base its decision as to whether you should remain on a CTO.

If you do get a report from another psychiatrist, that psychiatrist should state his or her opinion on the following matters:

  • the likely outcome of you continuing without a CTO (giving the details of any alternative treatment plans, if this is suggested);
  • any alternative, less restrictive form of care, consistent with your safe and effective care, that may be available to you;
  • whether you still have a mental illness (either under the Mental Health Act 2007 definition or whether you have any other mental illness or disorder) and whether you need ongoing treatment (either as set out in the plan or in any other alternative treatment plan);
  • whether there are side effects or reactions to the medication set out in the Treatment Plan and whether the medication remains appropriate for you given your current circumstances and the nature of the side effects.

The Director of a Community Mental Health Facility responsible for implementing a CTO can cancel a CTO at any time if they think you no longer benefit from the order.

4F.1.6: Recognition of Community Treatment Orders made in other states or territories

Community Treatment Orders (CTOs) can be made for people from another state or territory if they are to be put into effect by a NSW health care facility.

CTOs made in NSW can be put into effect in another state or territory, depending on the laws of that state or territory. If you breach a CTO in this situation, then the breach will be dealt with according to that state or territory's law.

CTOs from Victoria, Queensland and the ACT are recognised in NSW and if you are on a CTO from one of these states and territories, your CTO can continue in NSW, with you being treated by Community Mental Health in NSW.

 

 DISCLAIMER

  • The legal and other information contained in this Section is up to date to 31 August 2015
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
  • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.