Frequently Asked Questions

These Frequently Asked Questions (FAQs) are intended to assist with clinical translation of the various aspects of the Mental Health Act 2014 (MHA 2014) and aim to assist with some of the queries which clinicians frequently address to the Office of the Chief Psychiatrist’s Clinical Helpdesk.

The FAQs should not be considered legal advice, and do not override the need for services to seek legal or other advice about individual clinical situations.

This page will be updated and further FAQs added as required.

For any further queries, please contact the Clinical Helpdesk at 6553 0000 or clinical.consultant@ocp.wa.gov.au.

Last updated: 29 October 2024.

Treatment

Can a psychiatrist or other medical practitioner provide consent to non-urgent non-psychiatric treatment of an involuntary patient?

A psychiatrist or other medical practitioner does not have legal authority to provide consent to non-urgent non-psychiatric treatment of an involuntary patient under the Mental Health Act 2014 (MH Act).

The persons who may provide consent to non-urgent non-psychiatrist treatment, namely “treatment” under the Guardianship and Administration Act 1990 (GAA Act), does not include the person’s psychiatrist or any other medical practitioner.

Section 3 of the GAA Act relevantly defines treatment as follows:

treatment —

•  means —
  • medical or surgical treatment, including a life sustaining measure or palliative care; or
  • dental treatment; or
  • other health care;

If an involuntary patient is unable to provide consent to treatment, as defined in the GAA Act, and the patient does not have an advance health directive or an enduring guardian or guardian, the person responsible for the patient under section 110ZD(2) of the GAA Act may provide consent on behalf of the patient.

A psychiatrist may only provide treatment to an involuntary patient without the patient’s consent when the treatment to be provided meets the definition of treatment under section 4 of the MH Act, which states as follows:

treatment means the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation.

Where the treatment is of a non-psychiatric nature, such that it does not fall within the definition of treatment under the MH Act, consent must be provided in accordance with the provisions of the GAA Act.

Detention and restraint of patients in public hospitals

When can reasonable force be used to detain a person under the Mental Health Act 2014?

• Section 171 of the Mental Health Act 2014 (MH Act) lists the provisions of the MH Act under which reasonable force may be used. They are sections 83(2)(c); 86(c); 99; 130(3); 149(1); 225; and Part 11 of the MH Act.
• Sections 130(3); 149(1); 225; and Part 11 of the MH Act authorise the use of reasonable force to detain the following persons:
  • An involuntary community patient who can be detained at the place specified in an order to attend – see section 130(3)
  • A person who can be apprehended under a transport order – see section 149(1)
  • An involuntary inpatient who can be detained because of an oral authorisation to seclude a person or a seclusion order – see section 225
  • A person who can be detained, searched and items seized under Part 11.
• Section 83(2)(c) of the MH Act authorises the use of reasonable force when detaining the following persons for examination under the provisions listed in section 83(1) of the MH Act:
  • A voluntary inpatient who can be detained at an authorised hospital under section 34(3) because of an order for an assessment under section 34(1) – see section 83(1)(a)
  • A person who can be detained at an authorised hospital under section 52(1)(b) because of a referral made under section 26(2) – see section 83(1)(b)
  • A voluntary inpatient who can be detained at an authorised hospital under section 53(1) because of a referral made under section 36(2) – see section 83(1)(c)
  • A person who can be detained at an authorised hospital under a continuation order made under section 55(1)(c) – see section 83(1)(d)
  • A person who can be detained at a place that is not an authorised hospital under section 58(1)(b) because of a referral made under section 26(3)(a) – see section 83(1)(e)
  • A person who can be detained at a place that is not an authorised hospital under a continuation order made under section 59(2) – see section 83(1)(f)
  • A person who can be detained at an authorised hospital because of an order made under section 61(1)(c) – see section 83(1)(g)
• Section 86(c) of the MH Act authorises the use of reasonable force to detain a person under an inpatient treatment order.

Who is authorised to use reasonable force to detain a person under the Mental Health Act 2014?

• A person who is prescribed by the Mental Health Regulations 2015 (MH Regulations) is authorised to use reasonable force to detain a person under the Mental Health Act 2014 (MH Act).
• Section 83(2)(c) of the MH Act provides that a referral or other order listed in section 83(1) authorises a person, who is prescribed by the MH Regulations, to use reasonable force to detain the person the subject of the referral or order.
• Section 86(c) of the MH Act provides that a person prescribed by the MH Regulations may use reasonable force to detain a person under an inpatient treatment order.

Who is prescribed under the MH Regulations to use reasonable force to detain a person?

• Regulation 5 of the Mental Health Regulations 2015 (MH Regulations) provides that a person who is specified in Schedule 1 to the MH Regulations is authorised to use reasonable force to detain a person under the provisions listed in section 171 of the Mental Health Act 2014 (MH Act) – sections 83(2)(c); 86(c); 99; 130(3); 149(1); 225; and Part 11 of the MH Act.
• The persons listed in Schedule 1 to the MH Regulations are: a “staff member of a mental health service”; a “staff member of the authorised hospital”; a “staff member of the hospital”; and a “health professional”.
• Regulation 6 of the MH Regulations provides that a transport officer or a staff member of a mental health service may carry out an apprehension and return order.

Does a Form 1A Referral Order authorise the use of force to detain the person?

Reasonable force may only be used to detain the person under a Form 1A Referral Order once the person has been received into the authorised hospital or other place where the examination by a psychiatrist is to take place.

Does a Form 3A Detention Order or a Form 3B Continuation of Detention Order authorise the use of force to detain the person?

• A Form 3A Detention Order made under section 28 of the Mental Health Act 2014 (MH Act) does not authorise the use of force to detain a person.
• A Form 3B Continuation of Detention Order made under section 62 of the MH Act does not authorise the use of force to detain a person.
• Although detention of a person is expressly authorised by these sections, the use of reasonable force for the purpose of detaining the person is not.

Who can use reasonable force to detain a person following a referral under the Mental Health Act 2014?

• Schedule 1 to the Mental Health Regulations 2015 (MH Regulations) provides that a person, who is authorised to use reasonable force when detaining a person referred for an examination by a psychiatrist, is either:
  • If the person is referred to an authorised hospital – a staff member of the authorised hospital; or
  • if the person is referred to a mental health service – a staff member of the mental health service; or
  • if the person is referred to a place other than an authorised hospital or mental health service – a health professional at the place.

Who is a “staff member of the authorised hospital”?

• Schedule 1 to the Mental Health Regulations 2015 (MH Regulations) provides that a “staff member of the authorised hospital” may use reasonable force when detaining a person under sections 34(3); 52(1)(b); 53(1); 55(1)(c); 61(1)(c); and 225 of the Mental Health Act 2014 (MH Act).
• Staff working within an authorised hospital or an authorised area of a hospital are a “staff member of the authorised hospital”.

Who is a “staff member of the hospital”?

• Schedule 1 to the Mental Health Regulations 2015 (MH Regulations) provides that a “staff member of the hospital”, at which a person is detained under an inpatient treatment order, is authorised to use reasonable force to detain the person.
• This may be a staff member of an authorised hospital or a general hospital.

Who is a “staff member of the mental health service”?

• A “staff member of a mental health service” means a person who is employed in the mental health service under a contract of employment or contract of training; or who provides services to the mental health service under a contract for services (Mental Health Act 2014 (MH Act) section 4).
• Wards and areas of a hospital, that are not authorised, may be a “mental health service” if they provide treatment or care to people who have or may have a mental illness (MH Act section 4).

Who is “a health professional”?

• A “health professional” includes a medical practitioner, nurse, occupational therapist, psychologist or social worker. In relation to a person who is of Aboriginal or Torres Strait Islander descent, it includes an Aboriginal or Torres Strait Islander mental health worker (Mental Health Act 2014 (MH Act) section 4).
• If the place, to which a person has been referred, is not a mental health service, then reasonable force may be used by a “health professional” to detain the person at that place.

Can a security officer use reasonable force to detain a person?

• Yes, if a person, who is authorised to used reasonable force, requests their assistance (Mental Health Act section 172(2)).
• So, security officers may use reasonable force if they are assisting in accordance with a request under section 172 of the Mental Health Act 2014 (MH Act).
• Section 172(1) of the MH Act provides that a person, who is authorised to use reasonable force under a provision prescribed in section 171 of the MH Act, may request another person to provide reasonable assistance in the use of reasonable force.
• Section 172(2) of the MH Act authorises the authorised person and the person assisting to use reasonable force when exercising a power under the provisions listed in section 171 of the MH Act.

Can I use force to detain a person who has left the place of detention?

• Where the use of force is authorised “for the purpose of detaining” a person at a particular place, the force must be used only for the purpose of keeping the person confined to that place.
• Once the person has left that place, it is likely that the use of force can no longer be said to be for the purpose of detaining the person at the authorised place of detention.
• An apprehension and return order allows for the use of reasonable force in order to return a person to the authorised place of detention.

Can I restrain a child?

• Where a child has insufficient maturity and understanding to consent to being restrained, the child’s parent or guardian has the authority to give consent to the child being restrained.
• However, the restraint of a child must be in the child’s best interests. This is determined on a case-by case basis.
• In Australia, once a child is mature enough to understand a procedure or treatment being proposed, the parents’ authority is at an end, even where the child may decide to refuse medical treatment.
• A child, who is mature enough to understand a procedure or treatment being proposed, is commonly referred to as a mature minor.
• if a mature minor refuses to be restrained, then there is no scope for a parent or guardian to consent to the restraint of the child.

Mental Health Act 2014 Forms

Can a MHA 2014 legal order be backdated?

There are no circumstances when a legal order can be backdated. If a legal order has expired the person is no longer subject to that order.

Does a Form 1A referral order commence at the time of assessment, or when the form is completed?

In relation to a Referral Order, the Mental Health Act 2014 (MH Act) states (s.41) that the form must include the date and time when the order ‘is made.’

The Referral Order is made at the time it is written, not the time when the assessment occurred (which could be up to 48 hours prior to the order being made (s.40)) nor at the time the decision to complete an order was made.

The MH Act does not allow the backdating of forms in any circumstances.

If an order is made is 11am, the time written on the Form 1A should be 11am.

The same applies to other MH Act forms: if a decision is made to also complete a Form 3A Detention Order, this also commences from the time it is written, not the time of the assessment.

This means that following the assessment but prior to the completion of the Form 1A, the person is not subject to a Referral Order. Similarly, following the assessment, but prior to the completion of a Form 3A Detention Order, the person is not subject to a Detention Order and there are no MH Act powers to detain them.

Am I able to make a continuation order for a Community Treatment Order which has expired?

A CTO remains in force until the expiry of the treatment period for the order, unless prior to the expiry, the supervising psychiatrist:

• completes a continuation order (s.116(d));
• makes an inpatient treatment order (on examination of the patient); or
• revokes the CTO.

Once the order has expired, the person is a voluntary patient, and must be advised that this is the case.

A continuation order may be made by the supervising psychiatrist, on or within 7 days before the day on which a treatment period ends (s.121(1)).

When making a continuation order, s.121(3) of the Mental Health Act 2014 (MH Act) states that the form must include the date when the order ‘is made.’ An order is made on the day the Form 5B is completed.

The MH Act does not allow the backdating of forms in any circumstances, and there is no capacity to write a continuation order after the CTO has expired, regardless of whether this had been intended.

Can a Form 6B (Inpatient Treatment Order in General Hospital) be made in an Emergency Department?

• Under the Health Services Act 2016, an emergency department (ED) falls within the definition of a hospital.
• Under the Mental Health Act 2014, the hospital facility is considered a general hospital except for authorised areas.
• A Form 6B can be made in ED with the name of the hospital (e.g., Fiona Stanley Hospital) on the form as the ‘general hospital where the person is to be an involuntary inpatient’.
• It is important to note that approval from the Chief Psychiatrist or their delegate must be received before completing a Form 6B.
• Refer to the Chief Psychiatrist Schedule of Delegations: Approval for Inpatient Treatment Order in General Hospital.

Does a Form 7A need to be completed for every period of leave?

A Form 7A must be completed for each time an involuntary inpatient leaves the authorised hospital.

There is no provision in the Mental Health Act 2014 for the Form 7A to be used to cover multiple instances of leave over a period of time, or for discretion regarding whether it is necessary to complete a Form 7A.

When is a person “received” at the place of examination under the Mental Health Act 2014?

This question raises legal issues of some uncertainty which, in the context of the Mental Health Act 2014, have not yet been tested by the courts.

The Office of the Chief Psychiatrist is of the view that, while a person is not yet received when they walk through the door of an authorised hospital or other place (such as an emergency department), it is likely that they are received when they are first seen by a health professional who has the authority to determine the initial treatment and care for the person – for example, once the initial ED triage has taken place and their information has been entered into the Patient Admission System.

The person can only be received at the place of examination that is written on the relevant legal order.

It is important to note that the receival section of the relevant form (hardcopy or PSOLIS) must be completed and this must reflect the actual time of receival. Upon receival, the person may be detained for up to 24 hours for a psychiatrist to conduct the examination.

The Office of the Chief Psychiatrist acknowledges that receival in itself does not mean that the receiving service has capacity to safely manage the patient at that time. Mutual agreement between staff is required in regard to the safe handover of care of the patient, based on the prevailing clinical needs and risks.

Guardianship

What is a guardianship order?

A guardianship order is an order made by the State Administrative Tribunal (SAT) under the Guardianship and Administration Act 1990 (GAA Act), that appoints a person as another person’s guardian.

What is a guardian?

A guardian is person who is responsible for making personal; lifestyle; and treatment decisions on behalf of a person who lacks the capacity to make their own decisions.

The types of decisions a guardian can make will depend on the type and terms of the guardianship order.

Types of Guardianship Orders

A person may be appointed by the SAT as a plenary guardian or a limited guardian; and the order under which they are appointed will be called a plenary guardianship order or a limited guardianship order.

The person in respect of whom a plenary or limited guardianship order is made is called a represented person.

Who can be a represented person?

A person is respect of whom a guardianship order may be made (a represented person) must be:

• 18 years of age or over;
• incapable of looking after their own health and safety;
• unable to make reasonable judgments in respect of matters relating to themselves;
• in need of oversight, care or control in the interests of their own health and safety or for the protection of others; and
• in need of a guardian.

Who can be a guardian?

A guardian must be someone who:

• is 18 years of age or over;
• has consented to act as guardian; and
• in the opinion of the SAT:
  • will act in the best interests of the person in respect of whom the application is made;
  • is not in a position where their interests conflict or may conflict with the interests of the person; and
  • is otherwise suitable to act as the guardian of that person.

The Public Advocate can be appointed as a person’s guardian, but should not be appointed, unless there is no one else “suitable and willing” to act as the person’s guardian.

Who can apply for a guardianship order?

Anyone can apply for a guardianship order with respect to another person, including family members, friends, clinicians, or the Public Advocate.

How do you apply for a guardianship order?

An application for a guardianship order can be made orally; in writing; or partly in writing and partly orally.

An application can be made online on the eCourts portal as follows:

• Visit the eCourts Portal
• Click on “State Administrative Tribunal”
• Click “Yes” to commence a new matter with the SAT
• Click “I know the Act and Section I wish to apply under”
• From the dropdown menu select “Guardianship and Administration Act 1990”
• From the dropdown menu select “Section 40(1) – Application to appoint a guardian and/or administrator”
• Follow the instructions.

Can the SAT deal with an application for a guardianship order on an urgent basis?

An application for a guardianship order can be dealt with on an urgent basis if the SAT decides it is appropriate to do so.

The GAA Act provides that the executive officer of the SAT must give notice of a hearing of an application to specified persons at least 14 days before the hearing.

The specified persons are the applicant; the person in respect of whom the application is made; the nearest relative of the person; the Public Advocate; and any other person the executive officer considers has an interest in the matter.

In exceptional circumstances, the SAT may shorten the 14-day period. Also, it may dispense with the requirement to give notice to the nearest relative and any other person with an interest in the matter.

Therefore, the SAT may decide to deal with an application for a guardianship order on an urgent basis.

What decisions can a guardian make?

A plenary guardian may make treatment decisions on behalf of a represented person, as well as decisions regarding the following:

• where the represented person is to live, whether permanently or temporarily;
• with whom the represented person is to live;
• whether the represented person should work and, if so, the nature or type of work, for whom they are to work;
• what education and training the represented person is to receive; and
• with whom the represented person is to associate.

A limited guardian may make only those decisions that are specified in the guardianship order.

What is treatment; urgent treatment; and treatment decision?

The GAA Act defines treatment; urgent treatment and treatment decision as follows:

• “treatment” is medical, surgical or dental treatment; or other health care;
• “treatment decision” is “a decision to consent or refuse consent to the commencement or continuation of any treatment of the person”;
• “urgent treatment” is treatment urgently needed by a patient:
  • to save the patient’s life; or
  • to prevent serious damage to the patient’s health; or
  • to prevent the patient from suffering or continuing to suffer significant pain or distress.

Who can consent to treatment on behalf of an adult who lacks capacity and does not have a guardian?

Section 110ZD of the GAA Act provides that a person responsible may make a treatment decision on behalf of a person who is unable to make reasonable judgments in respect of the treatment.

A person responsible must be:

• of full legal capacity;
• reasonably available; and
• willing to make a treatment decision.

A person responsible is:

• the patient’s spouse or de facto partner if that person —
  • has reached 18 years of age; and
  • is living with the patient
• the patient’s nearest relative who maintains a close personal relationship with the patient;
• the person who —
  • has reached 18 years of age; and
  • is the primary provider of care and support (including emotional support) to the patient, but is not remunerated for providing that care and support;
• any other person who —
  • has reached 18 years of age; and
  • maintains a close personal relationship with the patient.

The patient’s nearest relative is the first in order of priority of the following relatives of the patient who has reached 18 years of age —

• the spouse or de facto partner;
• a child;
• a parent;
• a sibling

Who can consent to urgent treatment on behalf of an adult who lacks capacity?

If practicable, urgent treatment should be given to an adult who lacks capacity:

1. in accordance with an advance health directive; or
2. with the consent of the person’s guardian or enduring guardian, or the person responsible for the person under section 110ZD of the GAA Act.

However, a health professional may provide urgent treatment to the person without consent, if none of the above is possible or practicable.

Can a guardian make decisions regarding the restraint of a represented person?

A guardianship order must specifically state that the guardian can make decisions regarding restraint of the represented person. If the order does not include this, then a guardian cannot consent to restraint.

Treatment and Care of Children in Adult Mental Health Services

When can a child be admitted to a mental health service that also admits adults?

A child is defined as a person who is under 18 years of age. Section 303 of the Mental Health Act 2014 provides that a child may only be admitted to a mental health service (MHS), that also admits adults, if the person in charge of the MHS is satisfied that:

• the MHS can provide the child with treatment, care and support that is appropriate having regard to the child’s age, maturity, gender, culture and spiritual beliefs; and
• the treatment, care and support can be provided to the child in a part of the MHS that is separate from any part of the MHS in which adults are provided with treatment and care having regard to the child’s age and maturity.

Can a child who is a voluntary patient be admitted to a mental health service that also admits adults?

Yes, but the requirements under section 303 of the Mental Health Act 2014 apply to any child who is admitted to a mental health service that also admits adults, including a child who is a voluntary patient.

The requirements under section 303 apply to:

• a child who is admitted, as a voluntary or involuntary patient, to a hospital that also admits adults;
• a child who is admitted, as a voluntary or involuntary patient, to a unit that admits both children and young adults (18-24 years); and
• a child who is admitted to an area in a hospital that is designated for the urgent mental health assessment and treatment of both children and adults, for example a Mental Health Observation Area or Mental Health Emergency Centre.

What information must be in the report that must be prepared when a child is admitted to a service that also admits adults?

When a child is admitted to a mental health service that also admits adults, section 303(3) of the Mental Health Act 2014 requires the person in charge of the mental health service to prepare a report containing the following information:

1. The reasons why the person in charge of the MHS is satisfied that MHS is satisfied that:
   1. the MHS can provide the child with treatment, care and support that is appropriate having regard to the child’s age, maturity, gender, culture and spiritual beliefs;
   2. the treatment, care and support can be provided to the child in a part of the MHS that is separate from any part of the MHS in which adults are provided with treatment and care having regard to the child’s age and maturity;

2. The measures the MHS is taking to ensure that, while the child is admitted as an inpatient, the child is protected and the child’s individual needs in relation to treatment and care are being met.

The Report may be in the following form, which has been developed by the Office of the Chief Psychiatrist:

MHA2014_s303 Segregation of children from adult inpatients

MHA2014_s303 Segregation of children from adult patients – WA Health Employees ONLY

Who must be given a copy of the report that is prepared when a child is admitted to an adult mental health service?

The report must be given to the child’s parents or guardian.

A copy of the report must also be:

• sent to the Chief Psychiatrist at monitoring@ocp.wa.gov.au; and
• filed in the patient’s medical record.

Community Treatment Orders

Who is the supervising psychiatrist?

This is the psychiatrist supervising the community treatment order. A psychiatrist must be:

• a Fellow of the Royal Australian and New Zealand College of Psychiatrists, or
• a medical practitioner who holds specialist registration under the Health Practitioner Regulation National Law (Western Australia) in the specialty of psychiatry, or
• a medical practitioner who holds limited registration under the Health Practitioner Regulation National Law (Western Australia) that enables them to practice in the specialty of psychiatry; or
• a medical practitioner whose name and registration number is included in the Table in regulation 4A(3) of the Mental Health Regulations 2015.

Who is the treating practitioner?

This is the medical practitioner or mental health practitioner who is providing treatment to the patient under a community treatment order.

If the treating practitioner is a ‘medical practitioner’, they must be registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession.

If the treating practitioner is a ‘mental health practitioner’, they must have at least 3 years’ experience in the management of people who have a mental illness as a psychologist, registered nurse, occupational therapist, or social worker.

What happens if a referral (Form 1A) is written for a person on a CTO?

If an Authorised Mental Health Practitioner (AMHP) or a medical practitioner conducts an assessment of a person on a CTO and reasonably suspects that they are in need of an inpatient treatment order then they can complete a Form 1A – Referral for examination by a psychiatrist. A Form 4A – Transport Order can also be completed if necessary.

When the Form 1A is written, the CTO is suspended.

If the Form 1A expires or is revoked, the CTO is restored. Otherwise, once the person presents to the place of examination and the psychiatrist examines them, there are three options:

• Involuntary inpatient treatment order (Form 6A or Form 6B) – if this happens, the CTO is automatically ceased.
• Order that the person can no longer be detained (Form 3E) – if this happens, the CTO is automatically restored.
• Continuation of detention to enable further examination by a psychiatrist (Form 3C) – if this happens, the CTO remains suspended until one of the above options is chosen (Form 6A/6B or Form 3E).

AMHPs and medical practitioners should take note that if they are entering a Form 1A onto PSOLIS for a person on a CTO, it must be entered via the Form 5A, not the Form 5B. If this is not done correctly, a second legal journey is incorrectly commenced in PSOLIS. Select the Form 5A, click on the “New” button, then select Referral (1A).

When does a patient subject to a CTO need to be examined?

Patients receiving treatment and care under a CTO must be examined within 14 days prior to the end of the “review period”.

The “review period” is:

1. one month from the day the community treatment order begins; or
2. one month from the day after the day they were last examined.

Therefore, in practice, the patient must be examined monthly. Take note, however, that it is possible for more than three examinations to be required during a CTO with a duration of three months, depending on when the examinations occur. For example:

• If the CTO commenced on 1 January, the first examination would be due on or before 31 January, but if it was conducted within 14 days prior, on 18 January, then…
• The second examination would be due by 17 February, but if it was conducted within 14 days prior, on 3 February, then…
• The third examination would be due by 2 March, but if it was conducted within 14 days prior, on 16 February (or 17 February in a leap year), then…
• A fourth examination would be required by 15 March (or 16 March in a leap year), before the CTO expired on 31 March.

Carefully scheduling examinations to make sure that they are carried out correctly, is therefore an important focus for a community MH service.

Who can examine a patient subject to a CTO?

The supervising psychiatrist can carry out the examinations required for patients subject to a CTO.

If the supervising psychiatrist is unavailable, or if the supervising psychiatrist requests it using a Form 5D, another medical practitioner or mental health practitioner can examine the patient – however – if more than 2 months has elapsed since the patient was last examined by the supervising psychiatrist, only the supervising psychiatrist can conduct the examination.

Therefore, in practice, in a 3-month “treatment period”, no more than two examinations can be carried out by someone other than the supervising psychiatrist.

What happens if the supervising psychiatrist goes on leave?

There are certain situations in which a supervising psychiatrist may wish to transfer the care and treatment of a CTO patient to another psychiatrist because they are taking leave and will not be available for a period, or because they are leaving their role with a service.

Only the supervising psychiatrist can extend the CTO, vary the terms of the CTO, or revoke the CTO, so if any of these actions will need to occur during a period while the supervising psychiatrist is away, they should transfer the care and treatment of the CTO patient to another psychiatrist using a Form 5C. Unless a Form 5C is completed, the supervising psychiatrist retains their responsibility for the treatment and care of the CTO patient.

The exception is if the supervising psychiatrist is suddenly or unexpectedly unavailable. In this circumstance, the Chief Psychiatrist or a person authorised by the Chief Psychiatrist Schedule of Delegations: Change in Supervising Psychiatrist for a Community Treatment Order can complete a Form 5C to change the supervising psychiatrist to another supervising psychiatrist.

The new supervising psychiatrist remains responsible until they complete another Form 5C transferring the care to someone else. If the leave is temporary, when the original supervising psychiatrist returns, another Form 5C must be completed to return the care to them.

What happens if the treating practitioner leaves or is away?

If the treating practitioner is not going to be available, on a temporary or permanent basis, the supervising psychiatrist can use a Form 5C to transfer the care to another treating practitioner. If the leave is temporary, when the original treating practitoner returns, another Form 5C must be completed to return the care to them.

How can the supervising psychiatrist or treating practitioner be changed?

The supervising psychiatrist should discuss the transfer with the other psychiatrist or treating practitioner first. Before they can transfer the care, they must be satisfied that the other person is aware and able to take on the care.

While it is not a requirement of the Mental Health Act 2014, it would be acting in line with the Charter of Mental Health Care Principles to, whenever possible, discuss the transfer with the patient before it occurs. If it’s possible for the patient to have a choice about who takes over, it’s preferable for them to have the opportunity to choose.

Once the transfer of care has been agreed, the supervising psychiatrist completes a Form 5C. The patient must be informed of the transfer in writing – this is done by giving them a copy of the Form 5C.

The Form 5C can be completed by the Chief Psychiatrist or a person authorised by the Chief Psychiatrist Schedule of Delegations: Change in Supervising Psychiatrist for a Community Treatment Order.