The Supreme Court of Victoria has recently handed down a decision1 examining the power to make an involuntary treatment order (ITO) under the Mental Health Act 1986 (Vic) (Act) in circumstances where the Mental Health Review Board (Board) had discharged a previous ITO only hours earlier.2 A tale of two ITOs


A mental health patient (Patient) was the subject of an ITO (ITO1) requiring that she be detained and receive involuntary psychiatric treatment at Monash Medical Centre (MMC). She successfully appealed to the Board and it set aside ITO1 on the basis that a necessary criteria for making the order prescribed by section 8(1)(e) of the Act3 , was not established. The Board considered that the Patient could receive adequate treatment voluntarily under the care of her private psychiatrist. Later the same day, a medical practitioner (WW) made a second ITO (ITO2) as a result of concerns that the Patient would not submit to voluntary treatment and was about to leave the hospital and reside with a former employer and/or relocate to Queensland. The Patient issued Supreme Court proceedings challenging the validity of ITO2 on the grounds that WW had no power to make it, due to the Board’s order earlier that day discharging ITO1.4


The Patient’s challenge to ITO2 did not succeed, with the Court finding that WW’s recommendation of a further ITO was lawful.

The Court noted that registered medical practitioners (RMP) exercising powers to recommend ITOs are required to have regard to earlier decisions of the Board and cannot lawfully recommend that a patient be the subject of a further ITO simply because they disagree with the Board’s decision.

The Court held though that should there be a change in circumstances which places “a different complexion on the case as compared to that which had been before the Board,” an RMP can lawfully recommend a further ITO so long as the criteria in section 8(1) of the Act are met.

In this case, WW’s recommendation was not viewed as “capricious” or “motivated by a desire to render the Board’s decision nugatory” due to the Patient’s plans to reside with a former employer and/or relocate to Queensland. These plans were inconsistent with the case presented to the Board on her behalf and, as such, were new matters which WW was entitled to consider in exercising a discretion whether or not to make a further ITO.

The Patient also argued that ITO2 was unlawful because WW took into account an irrelevant consideration, that being the welfare of the Patient’s children if she was discharged. The Patient relied in this regard on the recent High Court judgment in Hunter and New England Local Health District v McKenna.5 In that case, the hospital and medical staff concerned were found not to owe a common law duty of care to protect persons against harm caused by a mentally ill person following his discharge from their care because such a duty would be inconsistent with the applicable statutory scheme for detaining such patients.

The Supreme Court found that it was lawful for WW to consider the risk of harm to the Patient’s children because, unlike the legislation concerned in McKenna, 6 section 8(1)(c) of the Act specifically contemplates ITOs being necessary for the protection of members of the public.


The legislative framework under which this case was decided has changed significantly, with the repeal of the Act and the enactment of the Mental Health Act 2014 (Vic) which commenced on 1 July 2014.

Assessment and Treatment Orders have replaced ITOs, but the requirement remains that assessment and treatment of mentally ill persons be provided in the least restrictive way possible, with voluntary assessment and treatment preferred.

It is not uncommon for a mental health patient’s condition to fluctuate and for numerous forms of compulsory detention to be required.

This case confirms that RMPs clearly had power under the previous legislative scheme to make a recommendation for further compulsory detention in circumstances where the designated review body had very recently discharged a pre-existing detention order. Its persuasive value in relation to cases which might arise under the current legislation remains to be seen.