keyboard-shift-1
Chapters poster

Download your Mental Health Rights Manual poster here

print-text Print this section

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

4I.1: Community Treatment Orders (CTO)

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

This section outlines: Community Treatment Order

  • When a Community Treatment Order can be made
  • How the treatment plan is developed
  • How the Community Treatment Order is made and for how long
  • What the effect of a Community Treatment Order is and what happens if you don’t comply with it
  • How you can get the Community Treatment Order changed or cancelled
  • Recognition of Community Treatment Order made in other states or territories

A Magistrate of a Local Court also has the power under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) to make a CTO under the Mental Health Act 2007 (NSW). For more information follow this link to Orders.

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

The Mental Health Review Tribunal make a CTO  when you are on an Involuntary Patient Order; when you are appealing against the Authorised Medical Officer’s refusal to discharge; when you are on a CTO that is about to expire or when there is an application from the community by an authorised person.

Applications can be made by:

  • the Authorised Medical Officer of a public mental health facility for an inpatient
  • a medical practitioner who is familiar with the clinical history of the person
  • the person’s Designated Carer or Principal Care Provider; or
  • 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 involuntary patient of a public mental health facility following a Mental Health Inquiry at which an Involuntary Patient Order was made; or
  • a person living in the community.

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

  • you are found to be a ‘mentally ill person’ as this term is defined in the Mental Health Act 2007 (NSW);
  • 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 never been on a CTO before, or have not been on a CTO in the twelve (12) months before the Inquiry, the Tribunal will also consider whether you have been previously assessed as having a mental illness and have a previous history of refusing to accept appropriate treatment.

This means that:

  • you have previously refused to accept appropriate treatment
  • when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness
  • the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not you were actually admitted); and
  • care and treatment following involuntary admission resulted, or could have resulted, in recovery from, the symptoms of a mental illness or the short-term prevention of deterioration in your mental or physical condition.

If you have been subject to a CTO in the twelve (12) months immediately before the Inquiry, The Tribunal will also consider whether you will continue in or relapse into an active phase of mental illness if the CTO is not made.

When making a CTO, the Tribunal may consider the efficacy of previous CTOs you have been on (if relevant), medical reports and information about your psychiatric and psychosocial history.

4I.2: How is the Treatment Plan developed?

A Community Treatment Plan (Treatment Plan) must set out in general terms an outline of the proposed medication, management, rehabilitation, counselling 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 (who may call themselves a care coordinator) under delegation from the Director or Deputy Director of a community mental health facility that will be responsible for implementing the CTO, 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 CTO, every effort that is reasonably practicable must be 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. The ultimate decision about what the Treatment Plan includes will be made by the community mental health facility, even if you disagree with what is proposed.

After discussing the Treatment Plan with you, the case manager/ care coordinator) or a staff member from the community mental health facility (appointed as your case manager/ care coordinator), 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, occupational therapist and mental health nursing.

The Treatment Plan usually involves a regular meeting between you and the case manager to review your mental state and to support you with any day to day issues (for example in relation to housing, employment, social activities and rehabilitation, physical health, as well as family/ carer support). They must make every effort to understand your personal goals for recovery and support you with referrals to other services in the community that you would like to be connected to. This might be for example: connecting you to the NDIS for an assessment, or working with the NDIS care coordinator to see where you can get the services you need and want; connecting with a general practitioner or community managed organisation program or service or helping you with a legal matter. 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 facility. They may occur at your home, only if you and your case manager agree to this.

Sometimes Treatment Plans will also require you to attend the community mental health facility, hospital clinic, or your General Practitioner to be administered medication, particularly if this is by way of intramuscular injection or ‘depot’. 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 three (3) months. These meetings will usually occur at the community mental health facility but may be at your home if you agree to this, and your psychiatrist also agrees.

The Treatment Plan can specify what medication you must take and how often you must take them and at what times of day.

Depending upon the type of medication, 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 at a therapeutic level)
  • to have blood tests as clinically required according to your health needs
  • to have urine drug screens to test for certain substances where taking these substances is likely to counteract your prescribed psychiatric medication and/or otherwise lead to a relapse in your mental state; and/or
  • to participate in rehabilitation and other services necessary for the recovery and maintenance of your mental health.

The Treatment Plan should also include obligations on the part of the treating team as well as things the team might encourage you to do because they believe they will assist your wellbeing and recovery, such as psychoeducation, rehabilitation and information, alcohol and drug counselling and engagement with physical health programs and work related initiatives.

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 general practitioner or take medication for a physical health condition.

To see a template for a CTO, click this link here

4I.3: How is the Community Treatment Order made and for how long?

If an application for a CTO is made 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.

Notice can be given in person, by post or by fax.

You must be given fourteen (14) days’ notice, unless:

  • you are already on a CTO in the community (that has not expired) and you are given notice in the course of your current CTO
  • the Tribunal decides it is in your best interests to hear the application earlier than the fourteen (14) day period; or
  • you are an inpatient in a hospital mental health facility.

Where the requirement for a fourteen (14) day notice period does not apply, you should still be given enough time to prepare for the hearing, discuss the treatment plan with your case manager and to seek legal advice if you wish. 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 CTO has been made.

If you are a patient in a public 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 nurse, and sometimes also, a hospital based social worker, psychologist, occupational therapist, rehabilitation professional or peer worker. The Mental Health Review Tribunal will usually expect a representative of the community mental health facility that will be responsible for implementing the CTO to attend the hearing, at the very least by phone.

If you are not an inpatient, 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 CTO, if it is made. Sometimes a consultant psychiatrist, other medical practitioner, psychologist, occupational therapist or social worker, peer worker or mental health worker representing a community managed service from which you received a service 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 can hear 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 can also make your views known by forwarding them to the Tribunal prior to the hearing.

You cannot avoid a CTO  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, or you would like a support person to attend, but they are unavailable that day) you should ask for the hearing to be rescheduled (‘adjourned’) to a date when you can attend. The Tribunal would prefer to meet you, but they can call you if you are unable to attend in person.

Other people also can 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, support persons and other lay advocates. It also includes staff of non-government agencies/community managed organisations that may be involved in supporting you in the community (such as a Housing Accommodation and Support Initiative/CLS or National Disability Insurance Scheme worker).

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 assistance.

The maximum length of time for which a CTO may be made is twelve (12) months. However, most orders are made for period of six (6) months. In deciding how long a CTO 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.

If the person applying for a CTO is asking for a longer order, they need to explain why. For example, if you have had a long history of mental illness and repeated admissions to public mental health facilities, a longer order may be seen to be more helpful. Sometimes the case manager will request a twelve (12) months order because the consumer experiences distress about and during hearings, which is detrimental to the person’s wellbeing and their therapeutic relationship with the case manager.

However, the Tribunal may still decide a six (6) month order is more appropriate in view of a diversity of circumstances. For example, you could be strongly opposed to a longer order, you were not told that an application for a longer order had been made or your treatment is still changing.

There is no limit to the number of CTOs that may be made for you.  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.

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

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 if the director of the community mental health facility decides to take action. 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, the director of the community mental health facility will consider:

  • whether the community mental health facility has taken all reasonable steps to implement the CTO; and
  • there is a significant risk of deterioration in your mental or physical condition; and
  • document their clinical opinion, facts on which it is based and the reasons for their opinion.

The Director of the community mental health facility responsible for implementing the order may do the following things:

Firstly, they must 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 specific mental health facility for treatment. A member of the NSW Police Force, acting on a breach order, is entitled to enter your premises, apprehend you without a warrant and use reasonable force if necessary.

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 twelve (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 must be given a Statement of Rights .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 (3) 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 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 (3) months, the Authorised Medical Officer must arrange for you to be reviewed 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.

4I.5: Can your Community Treatment Order be changed or cancelled?

You, 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 Mental Health Review Tribunal  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. There will be costs associated with getting an independent opinion from a psychiatrist.

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, that is safe and effective, 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 health condition and whether you need ongoing treatment (either as set out in the plan or in any other alternative treatment plan); and/or
  • 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. They must consult you first, and your Designated Carer and Principal Care Provider where practicable.

If you wish to appeal a CTO made by the MHRT, you must go to the Supreme Court. You should seek legal advice.

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

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

CTOs made in NSW can be put into effect in another state or territory, depending on the laws of that state or territory. However, NSW Health retains ultimate responsibility for this order and for monitoring you. 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, South Australia and the ACT are recognised in NSW and if you are on a CTO from one of these states and territories, your CTO can be implemented in NSW, with you being treated by Community Mental Health in NSW.

Updated February 4, 2021