ADVICE TO APPLICANTS
(Mental Health Act 2009)The orders that can be made by the Guardianship Board under the Mental Health Act 2009 include level 3 Detention and Treatment Orders and level 2 Community Treatment Orders. For more information about these orders, see Fact Sheets 12: Detention and Treatment Orders and 13: Community Treatment Orders. This fact sheet is a guide for people considering applying for either of these orders.
WHO CAN APPLY FOR LEVEL 3 DETENTION AND TREATMENT ORDERS (DTO)?A director of an approved treatment centre, an employee of an a approved treatment centre or the Public Advocate can apply for a level 3 DTO.
WHO CAN APPLY FOR LEVEL 2 COMMUNITY TREATMENT ORDER (CTO)?Applications for a level 2 CTO can be made by the Public Advocate, a medical practitioner, mental health clinician, guardian, medical agent, relative, carer, friend or anyone who satisfies the Board that they have a proper interest in the welfare of the person.
BEFORE LODGING AN APPLICATION TO THE GUARDIANSHIP BOARDThere are certain criteria in law that must be met before the Guardianship Board can make a level 3 Detention and Treatment Order or a level 2 Community Treatment Order. An applicant for either of these orders needs to be sure that these criteria can be met. The evidence presented to the Guardianship Board in relation to the criteria should be current, specific and relevant and address the following points:
- (a) the person has a mental illness; and
- (b) because of the mental illness, the person requires treatment for the person's own protection from harm (including harm involved in the continuation or deterioration of the person's condition) or for the protection of others from harm; and
- (c) there are facilities and services available for appropriate treatment of the illness; and
- (d) there is no less restrictive means than a community treatment order (OR detention and treatment order) of ensuring appropriate treatment of the person's illness.
In deciding whether there is no less restrictive means of treatment the Act states: -
consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis.
MAKING AN APPLICATION TO THE GUARDIANSHIP BOARDApplicants to the Guardianship Board have a number of responsibilities:
- To understand clearly what orders are being applied for and to state this clearly in the application or, if circumstances change, in follow up correspondence. All interested parties will receive notification as to what orders are being applied for and usually only these will be considered at the hearing.
- To supply the necessary evidence in support of the application, including wherever possible an up to date Treatment and Care Plan.
- To inform the Board of all interested parties to receive notification of the hearing. The law requires that all parties be formally invited to attend if they wish to.
- To make arrangements for the person who is the subject of the application to attend the hearing.
- To advise the Board of the need for any special arrangements, including the need for an interpreter or any special security considerations.
PRESENTING AN APPLICATION TO THE GUARDIANSHIP BOARD
- The Guardianship Board is an informal, but legal tribunal, and hears evidence in relation to the application before it. It is not a meeting or case conference where ideas can be debated and refined; clear information and plans are expected.
- The applicant must attend the hearing and is expected to present a coherent argument for the order sought.
- The applicant must clearly address the criteria that must be met before the Board can make an order. Information and history relevant to those criteria needs to be collated before the hearing and presented to the Board in a clear and concise way.
- If the application is for an order that requires the commitment of some other person or organisation, the applicant must provide evidence of their willingness in the application. The relevant organisational representative or medical practitioner may be required to attend the Guardianship Board hearing to verify this commitment and outline their proposed treatment plan.
- Applicants must be aware that information provided to the Guardianship Board can be made available to all in attendance at the hearing. It is an essential principle of natural justice that any person who may be subject to an order or decision of the Board be given the opportunity to respond to any submissions made in support of Board intervention.