MENTAL HEALTH BILL 2014

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This is a Bill, not an Act. For current law, see the Acts databases.

MENTAL HEALTH BILL 2014

Mental Health Act 2014 No. of 2014 TABLE OF PROVISIONS Clause Page PART 1--PRELIMINARY 1 1 Purposes 1 2 Commencement 2 3 Definitions 3 4 What is mental illness? 15 5 What are the treatment criteria? 16 6 What is treatment? 17 7 What is medical treatment? 17 8 Provision of advice, notification or information under this Act 18 9 Act binds the Crown 18 PART 2--OBJECTIVES AND MENTAL HEALTH PRINCIPLES 20 10 Objectives 20 11 The mental health principles 21 PART 3--PROTECTION OF RIGHTS 23 Division 1--Statement of rights 23 12 What is a statement of rights? 23 13 Statement of rights must be explained 23 Division 2--Right to communicate 24 14 Definition 24 15 Right to communicate 24 16 Restriction on right to communicate 24 17 Persons to be notified of restriction on inpatient's right to communicate 25 18 Restriction on right to communicate to be monitored regularly 26 Division 3--Advance statements 26 19 What is an advance statement? 26 20 Making an advance statement 26 21 Revoking an advance statement 27 22 Advance statement must not be amended 28 i

Clause Page Division 4--Nominated persons 28 23 Role of nominated person 28 24 Nomination of nominated person 28 25 Revocation of nomination 29 26 Revocation of nomination by person who made the nomination 30 27 Nominated person may decline to act as nominated person at any time 30 PART 4--COMPULSORY PATIENTS 32 Division 1--Assessment Orders 32 28 What is an Assessment Order? 32 29 Criteria for an Assessment Order 32 30 Making an Assessment Order 33 31 Contents of an Assessment Order 34 32 Information requirements in relation to an Assessment Order 34 33 Person subject to an Inpatient Assessment Order to be taken to a designated mental health service 35 34 Duration of an Assessment Order 36 35 Variation of an Assessment Order 37 36 Assessment of person subject to Assessment Order by authorised psychiatrist 39 37 Revocation or expiry of an Assessment Order 39 38 Treatment during an Assessment Order 40 Division 2--Court Assessment Orders 41 39 Examination by authorised psychiatrist 41 40 Notification requirements in relation to Court Assessment Orders 42 41 Variation of a Court Assessment Order 43 42 Treatment during Court Assessment Order 44 43 Authorised psychiatrist to provide report to court 45 44 Authorised psychiatrist may make Temporary Treatment Order 46 Division 3--Temporary Treatment Orders 47 45 What is a Temporary Treatment Order? 47 46 Authorised psychiatrist may make Temporary Treatment Order 47 47 Restriction on who can make Temporary Treatment Order 48 48 Community or Inpatient Temporary Treatment Order? 49 49 Contents of a Temporary Treatment Order 50 50 Information and other requirements in relation to Temporary Treatment Orders 50 51 Duration of a Temporary Treatment Order 52 ii

Clause Page Division 4--Treatment Orders 52 52 What is a Treatment Order? 52 53 Tribunal to determine whether to make person subject to Treatment Order 52 54 Authorised psychiatrist may make an application for a Treatment Order 53 55 Making a Treatment Order 54 56 Contents of a Treatment Order 55 57 Duration of a Treatment Order 55 Division 5--Variation of Temporary Treatment Orders and Treatment Orders 56 58 Variation of Temporary Treatment Orders and Treatment Orders 56 59 Requirements in relation to varied Temporary Treatment Orders and Treatment Orders 57 Division 6--Revocation and Expiry of Temporary Treatment Orders and Treatment Orders 59 60 Application to Tribunal to revoke Temporary Treatment Order or Treatment Order 59 61 Revocation of Temporary Treatment Order or Treatment Order if treatment criteria do not apply 59 62 Expiry of Temporary Treatment Order or Treatment Order if certain other Orders made 60 63 Notification requirements for expired or revoked Temporary Treatment Orders and Treatment Orders 60 Division 7--General provisions 61 64 Leave of absence with approval 61 65 Another designated mental health service to provide assessment or treatment--variation by authorised psychiatrist or as directed by chief psychiatrist 64 66 Application for review of direction to vary Order 67 67 Effect of detention in custody on certain Orders 68 PART 5--TREATMENT 69 Division 1--Capacity and informed consent 69 68 Capacity to give informed consent under this Act 69 69 Meaning of informed consent 70 70 Presumption that person has capacity to give informed consent 72 71 When a patient does not give consent to treatment 72 iii

Clause Page Division 2--Treatment 74 72 Patients to be treated for mental illness 74 73 Circumstances in which patient's preferences in advance statement may be overridden 74 Division 3--Medical treatment 75 74 Giving informed consent to medical treatment 75 75 Who may consent to medical treatment if patient does not have capacity to give informed consent? 75 76 Matters authorised psychiatrist must take into account if consenting to medical treatment of patient 76 77 Urgent medical treatment 78 Division 4--Second psychiatric opinions 79 78 Definition 79 79 Right to a second psychiatric opinion 79 80 Who may give a second psychiatric opinion? 79 81 Functions of a psychiatrist giving a second opinion 80 82 Powers of a psychiatrist giving a second psychiatric opinion 80 83 Reasonable assistance must be provided 82 84 Second psychiatric opinion report 82 85 Authorised psychiatrist must assess entitled patient (other than forensic patient) again in specified circumstances 83 86 Authorised psychiatrist must review entitled patient's treatment in specified circumstances 84 87 Application to chief psychiatrist for review of treatment 84 88 Review by chief psychiatrist 85 89 Application for review may be withdrawn 87 Division 5--Electroconvulsive treatment 88 90 Definition of young person 88 91 Meaning of a course of electroconvulsive treatment 88 92 When may electroconvulsive treatment be performed? 89 93 Application to Tribunal to perform electroconvulsive treatment on a patient who is not a young person 90 94 Application to perform electroconvulsive treatment on a young person 91 95 Listing of electroconvulsive treatment applications by Tribunal 93 96 Powers of Tribunal in respect of electroconvulsive treatment application 94 97 Order approving electroconvulsive treatment 96 98 Electroconvulsive treatment must not be performed in certain circumstances 96 99 Use of electroconvulsive treatment to be reported to chief psychiatrist 97 iv

Clause Page Division 6--Neurosurgery for mental illness 98 100 Psychiatrist may apply to Tribunal for approval to perform neurosurgery for mental illness 98 101 Listing of application to perform neurosurgery for mental illness 98 102 Powers of Tribunal in respect of application for neurosurgery for mental illness 98 103 Notice of decision 99 104 Report to chief psychiatrist 100 PART 6--RESTRICTIVE INTERVENTIONS 101 Division 1--General 101 105 When may a restrictive intervention be used? 101 106 Facilities and supplies to be provided to person 101 107 Notification of use of restrictive intervention 101 108 Use of restrictive intervention to be reported to chief psychiatrist 102 109 Release from restrictive intervention 102 Division 2--Seclusion 102 110 When may seclusion be used? 102 111 Use of seclusion to be authorised 103 112 Monitoring of person in seclusion 104 Division 3--Bodily restraint 104 113 When may a bodily restraint be used? 104 114 Use of bodily restraint to be authorised 105 115 Urgent use of bodily restraint without authorisation 106 116 Monitoring of person on whom a bodily restraint is used 106 PART 7--ADMINISTRATION 108 Division 1--The Secretary 108 117 Role of Secretary 108 118 Functions of the Secretary 108 Division 2--The chief psychiatrist 109 119 The chief psychiatrist 109 120 The role of the chief psychiatrist 110 121 Functions of the chief psychiatrist 110 122 Investigations by chief psychiatrist 112 123 Powers of entry 113 124 Power to give written direction to persons to produce documents or answer questions 114 v

Clause Page 125 Member of staff of mental health service provider to give any reasonable assistance 115 126 Report and recommendations following investigation by chief psychiatrist 115 127 Report and response to be given to the Secretary 116 128 Publication and response 116 129 Chief psychiatrist may give written directions to mental health service providers 117 130 Chief psychiatrist may conduct clinical reviews 118 131 Chief psychiatrist to give notice of intention to conduct clinical review 118 132 Clinical review reports and recommendations 119 133 Standards, guidelines or practice directions to address systemic issues identified in clinical review 120 134 Chief psychiatrist may conduct clinical practice audit 120 135 Chief psychiatrist must make record 120 136 Reports 120 137 Reports to be given to the Secretary 121 138 Publication of report 121 139 Standards, guidelines or practice directions to address systemic issues identified in clinical practice audit 121 140 Confidentiality obligations applying in respect of information from clinical practice audit or clinical review 121 141 Confidentiality of documents 123 142 Provision of staff 124 143 Contractors 124 144 Power of chief psychiatrist to delegate 124 145 Reports submitted by the chief psychiatrist 125 Division 3--Authorised officers 126 146 Chief psychiatrist may appoint authorised officers 126 147 Identity cards 127 148 Production of identity card 127 Division 4--Designated mental health services 128 149 Emergency declaration of designated mental health services 128 150 Appointment of authorised psychiatrist 128 151 Authorised psychiatrist may delegate powers and functions 129 PART 8--MENTAL HEALTH TRIBUNAL 131 Division 1--Establishment of the Mental Health Tribunal 131 152 Establishment of the Mental Health Tribunal 131 153 Functions of the Tribunal 131 154 General powers of the Tribunal 132 155 Protection of members, persons and witnesses 132 vi

Clause Page Division 2--Membership of the Tribunal 133 156 Membership 133 157 President 133 158 Deputy President 134 159 Senior members and ordinary members 135 160 Legal members 136 161 Psychiatrist members 136 162 Registered medical practitioner members 136 163 Community members 136 164 Appointments to act as President or Deputy President 137 165 Remuneration and allowances 137 166 Public Administration Act 2004 does not apply to members 137 167 Resignation 138 168 Suspension 138 169 Investigation 138 170 Vacation and removal from office 139 Division 3--Administration 140 171 Employment of staff 140 172 Functions of principal registrar 141 173 Functions of registrars 141 174 Delegation 141 175 Secrecy 142 176 Register of proceedings 142 177 Annual report of the Tribunal 144 Division 4--Tribunal divisions 144 178 Divisions of the Tribunal 144 179 Constitution of the Tribunal 145 180 Presiding member 145 Division 5--Procedure of the Tribunal 145 181 General procedure 145 182 Who are the parties to a proceeding? 146 183 Joinder of parties 146 184 Appearance and representation at hearing 147 185 Interpreters 147 186 Form and content of applications to the Tribunal 148 187 Principal registrar may reject certain applications 148 188 Withdrawal of proceedings 149 189 Notice of hearing 150 190 Multiple matters in respect of one person may be held concurrently 151 191 Access to documents 152 192 Adjournment of certain hearings only in exceptional circumstances 153 vii

Clause Page 193 Hearings to be closed to the public 153 194 Details of person not to be published without consent of President 154 195 Determination of proceedings 154 196 Questions of law 155 197 Referral of question of law to Court 155 198 Requesting a statement of reasons 156 199 Correction of Order or statement of reasons 157 200 Validity of proceedings 157 201 Review by VCAT 158 202 Use of experts 158 203 Witness summons 158 204 Failure to comply with summons 159 205 False or misleading information 159 206 Contempt of the Tribunal 159 Division 6--Rules Committee 160 207 Establishment of Rules Committee 160 208 Functions of the Rules Committee 160 209 Power to make rules and issue practice notes 160 210 Membership of the Rules Committee 160 211 Meeting procedure 161 212 Validity of decisions 161 PART 9--COMMUNITY VISITORS 162 213 Definition 162 214 Appointment of community visitors 162 215 General provisions as to community visitors 163 216 Functions of a community visitor 164 217 Powers of community visitors 165 218 When may community visitors visit prescribed premises? 166 219 Request to see a community visitor 166 220 Reasonable assistance to be given to community visitors 166 221 Community Visitors Mental Health Board 166 222 Matter may be referred 167 223 Reports by community visitors 168 224 Annual report of Community Visitors Mental Health Board 168 225 Secrecy provision 169 PART 10--COMPLAINTS 170 Division 1--The Mental Health Complaints Commissioner 170 226 Mental Health Complaints Commissioner 170 227 Vacation of office 170 228 Functions of the Commissioner 171 viii

Clause Page 229 Powers of the Commissioner 172 230 Provision of staff and contractors 173 231 Protection from liability 173 Division 2--Complaints management by the Commissioner 174 232 Making a complaint to the Commissioner 174 233 Referred complaints 174 234 Grounds for making a complaint 175 235 How to make a complaint 176 236 Time by when complaint to be made 176 237 Withdrawal of complaint 177 238 Preliminary assessment of complaint 177 239 Information relating to complaint to be provided 178 240 Circumstances in which Commissioner may close a complaint 178 241 Notice of complaint closure 179 242 Referring a complaint with or without consent 179 243 Commissioner may accept complaints and undertakings 180 Division 3--Conciliation 182 244 Conciliation process 182 245 Parties may be represented at conciliation 182 246 Discontinuation of conciliation 183 247 Conciliation outcome 183 248 Conciliation agreements 184 249 Secrecy 184 Division 4--Investigations 185 250 Identity cards for investigators 185 251 Identity cards to be produced by investigators 185 252 Investigation of a complaint 186 253 Notice of investigation 186 254 Power of entry 187 255 Powers to compel attendance and call for evidence and documents 188 256 Restrictions on powers 188 257 Report of findings following investigation 189 258 Mental health service provider response to report 190 259 Publication of report 190 Division 5--Compliance notices 191 260 Compliance notice 191 261 Application for review--compliance notice 192 262 Offence not to comply with compliance notice 192 ix

Clause Page Division 6--General 193 263 Requirement to provide reasonable assistance to Commissioner 193 264 Person not to be penalised because of complaining to Commissioner 193 265 Secrecy 194 266 Local complaint mechanisms to be established by mental health service providers 195 267 Mental health service providers to report on complaints 195 268 Annual report of the Commissioner 195 PART 11--SECURITY PATIENTS 197 Division 1--Preliminary 197 269 Construction of references 197 Division 2--Court Secure Treatment Orders 198 270 Taking person subject to a Court Secure Treatment Order from prison to designated mental health service 198 271 Notification of receipt of security patient subject to a Court Secure Treatment Order 199 272 Application to Tribunal in relation to security patient subject to Court Secure Treatment Order 199 273 Tribunal hearing in relation to Court Secure Treatment Order 200 274 Discharge of person subject to a Court Secure Treatment Order 201 Division 3--Secure Treatment Order 202 275 What is a Secure Treatment Order? 202 276 Making a Secure Treatment Order 202 277 Notification of receipt of security patient subject to a Secure Treatment Order 203 278 Application for revocation of Secure Treatment Order 204 279 Tribunal hearing in relation to Secure Treatment Order 205 280 Discharge of person subject to a Secure Treatment Order 205 Division 4--Leave of absence 206 281 Grant of leave of absence 206 282 Revocation of leave of absence 208 283 Notification requirements for leave of absence 208 284 Application to Tribunal 209 Division 5--Monitored leave 210 285 Monitored leave application and grant 210 286 Monitored leave conditions, duration and variation 211 287 Matters to take into account 212 x

Clause Page 288 Applicant profiles and leave plans for monitored leave 213 289 Revocation of monitored leave 214 290 Notification requirements for monitored leave 215 Division 6--Taking security patients to another designated mental health service 216 291 Authorised psychiatrist may direct security patient to be taken to another designated mental health service 216 292 Chief psychiatrist may direct security patient to be taken to another designated mental health service 217 293 Role of authorised psychiatrist in taking security patient to another designated mental health service 217 294 Application to Tribunal for review of direction to take security patient to another designated mental health service 218 Division 7--General security patient matters 220 295 Cessation of security patient status 220 296 Security conditions 221 297 Notification and directions following discharge of security patient subject to Court Secure Treatment Order or Secure Treatment Order 221 298 Custody of security patients 222 299 Warrant to arrest security patient absent without leave who leaves Victoria 223 Division 8--Interstate security patients 224 300 Definitions 224 301 Warrant to arrest interstate security patient who absconds to Victoria 224 302 Orders that Magistrates' Court may make in respect of interstate security patients 226 303 Translated sentence for interstate security patient 226 304 Provisions relating to translated sentences 227 PART 12--FORENSIC PATIENTS 229 305 Definition 229 306 Persons detained in prison under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 taken to designated mental health service 230 307 Authorised psychiatrist may direct taking forensic patient to another designated mental health service 232 308 Chief psychiatrist may direct forensic patient to be taken to another designated mental health service 233 309 Role of authorised psychiatrist in transferring forensic patient 234 xi

Clause Page 310 Application to Forensic Leave Panel for review of decision to take forensic patient to another designated mental health service 235 311 Security conditions 237 312 Leave of absence for forensic patient 237 PART 13--INTERSTATE APPLICATION OF MENTAL HEALTH PROVISIONS 238 Division 1--General 238 313 Definitions 238 314 Corresponding laws and Orders 239 315 Ministerial agreements 239 316 Victorian officers may exercise powers under corresponding laws 239 317 Interstate officers may perform functions or exercise powers in Victoria 240 Division 2--Operation of Victorian Orders interstate and corresponding orders in Victoria 240 318 Taking person from Victoria to interstate mental health facility for assessment 240 319 Taking person from interstate to Victoria for assessment 240 320 Transfer of responsibility for treatment of person to interstate mental health facility--with person's consent 241 321 Transfer of responsibility for treatment of person to interstate mental health facility--without person's consent 242 322 Taking person to interstate mental health facility--with person's consent 244 323 Taking person to interstate mental health facility--without person's consent 245 324 Person subject to interstate compulsory order taken to Victoria to determine suitability for Temporary Treatment Order 248 325 Interstate application of Victorian Orders 249 Division 3--Persons absent without leave 249 326 Apprehension of persons absent without leave from interstate facilities 249 327 Persons absent without leave from designated mental health service 251 PART 14--VICTORIAN INSTITUTE OF FORENSIC MENTAL HEALTH 252 Division 1--Preliminary 252 328 Victorian Institute of Forensic Mental Health 252 329 Trading name 252 xii

Clause Page 330 Functions of the Institute 253 331 Powers of the Institute 254 Division 2--Board of directors 255 332 Board of directors 255 333 Constitution of board of directors 255 334 Appointment of directors 255 335 Terms and conditions of appointment of directors 256 336 Resignation and removal 256 337 Protection from liability 257 338 Validity of acts or decisions 257 339 Procedure of board of directors 257 Division 3--General 257 340 Chief executive officer 257 341 Institute may employ persons 258 342 Minister may issue directions 259 343 Strategic plan 259 344 Statement of priorities 260 345 Board of directors to give notice of significant events 261 PART 15--GENERAL 262 Division 1--Disclosure of health information 262 346 Disclosure of health information 262 347 Information from electronic health information system 265 Division 2--Notification of reportable deaths 266 348 Chief psychiatrist to be notified of reportable deaths 266 349 Notification of death of security patient or forensic patient 266 Division 3--Powers of transfer, apprehension, entry, search and seizure 267 350 Bodily restraint and sedation may be used when taking person 267 351 Apprehension of person by police 268 352 Apprehension of person absent without leave 270 353 Power to enter premises, apprehend and take person to a designated mental health service 271 354 Search powers 272 355 Preservation of privacy and dignity during search 273 356 Power to seize and detain things 274 Division 4--General provisions 275 357 Payment for examination 275 358 Offence to give false or misleading information 276 359 Destroying or damaging records 276 360 Protection against self-incrimination 277 xiii

Clause Page 361 Validity of order if there is an error 277 362 Power to bring proceedings 277 363 Defect in appointment or delegation 278 364 Conflict of interest 278 365 Service of documents 278 Division 5--Codes of Practice 279 366 Purpose of Codes of Practice 279 367 Making of Codes of Practice 279 368 Commencement and availability of Codes of Practice 280 369 Power to apply, adopt or incorporate 280 Division 6--Regulations 281 370 Regulations 281 371 Fees 282 372 Transitional regulations 283 PART 16--REPEAL OF MENTAL HEALTH ACT 1986, SAVINGS AND TRANSITIONAL PROVISIONS 285 373 Definitions 285 374 Mental Health Act 1986 repealed 285 375 Request and recommendation for involuntary treatment-- section 9 of 1986 Act 286 376 Authority to transport--section 9A of the 1986 Act 286 377 Transfers and apprehensions 287 378 Involuntary treatment order not confirmed--section 12 of the 1986 Act 287 379 Involuntary treatment order not confirmed--section 12AA of the 1986 Act 288 380 Involuntary treatment order not reviewed--section 12AC of the 1986 Act 289 381 Continued detention and treatment of involuntary patient-- sections 12A, 12C and 12D 289 382 Community treatment order--section 14 of the 1986 Act-- no review by Board 290 383 Community treatment order--section 14--review and confirmation by Board 290 384 Restricted community treatment order--section 15A of the 1986 Act 291 385 Hospital transfer order and restricted hospital transfer order-- section 16 292 386 Transfer of person detained in prison under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 293 387 Appeals, reviews, proceedings and determinations 294 388 Secrecy provisions 294 xiv

Clause Page 389 Transfer of involuntary patient to another approved mental health service 294 390 Leave of absence 295 391 Discharge after absence 295 392 Apprehension of involuntary patient absent without leave 296 393 Transfer of security patient to another approved mental health service 296 394 Involuntary treatment order reviewed and confirmed by Board--section 36 of the 1986 Act 296 395 Leave of absence for security patients granted under section 51 of 1986 Act 297 396 Special leave of absence for security patients granted under section 52 of 1986 Act 298 397 Apprehension of security patient absent without leave under section 53 of 1986 Act 299 398 Transfer of forensic patient to another approved mental health service 299 399 Apprehension of forensic patient absent without leave under section 53AD of 1986 Act 300 400 Psychosurgery 300 401 Electroconvulsive therapy 301 402 Restraint and seclusion 301 403 Urgent non-psychiatric treatment 302 404 Corresponding laws and orders 302 405 Ministerial agreements 302 406 Transfer of persons from this State 302 407 Admission of persons from interstate 303 408 Transfer of patients from this State 303 409 Transfer of patients from interstate 304 410 Apprehension of person absent from interstate facilities 304 411 Escort of Victorian patients apprehended interstate 304 412 Warrant to arrest interstate security patient who absconds to Victoria 304 413 Orders Magistrates' Court may make in respect of interstate security patients 305 414 Translated sentence for interstate security patient 305 415 Emergency declaration of approved mental health services 305 416 Authorized psychiatrist 306 417 Provision of staff services 306 418 Chief psychiatrist 306 419 Authorised officers 307 420 Reportable deaths 307 421 Community visitors 307 422 Victorian Institute of Forensic Mental Health 307 423 Review of certain decision by VCAT 308 424 Payment for recommendation 308 425 Constitution of the Mental Health Tribunal 309 xv

Clause Page 426 President and members of the Mental Health Review Board 309 427 Psychosurgery Review Board 310 428 Repeal of spent provisions 310 PART 17--AMENDMENTS TO THE SENTENCING ACT 1991, THE CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 AND OTHER ACTS 311 Division 1--Sentencing Act 1991 311 429 Definitions 311 430 Sentences 312 431 Time held in custody before trial etc. to be deducted from sentence 312 432 Indefinite sentence 313 433 Court Secure Treatment Orders 313 18E Court Secure Treatment Orders 313 434 Time held in custody before trial etc. to be deducted from sentence 314 435 Part 5 of the Sentencing Act 1991 substituted 315 PART 5--MENTALLY ILL OFFENDERS 315 Division 1--Court Assessment Orders 315 90 What is a Court Assessment Order? 315 91 When may the court make a Court Assessment Order? 316 92 Contents of a Court Assessment Order and notification requirements 317 93 Effect and duration of Court Assessment Order 317 94 Court powers following Court Assessment Order 318 Division 2--Court Secure Treatment Orders 319 94A What is a Court Secure Treatment Order? 319 94B When may the court make a Court Secure Treatment Order? 319 94C Effect and duration of Court Secure Treatment Order 321 Division 3--Taking persons subject to Court Assessment Order or Court Secure Treatment Order 322 94D Custody of persons subject to Court Assessment Order or Court Secure Treatment Order 322 Division 4--Transitional Provisions 322 94E Definition 322 94F Assessment order and diagnosis, assessment and treatment order 322 94G Hospital security order 323 xvi

Clause Page 94H Restricted involuntary treatment order 324 94I Proceedings in relation to orders 324 Division 2--Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 325 436 Definitions 325 437 Supervision orders 326 438 Warrant to arrest person subject to custodial supervision order who leaves Victoria 326 439 Reports on mental condition of persons declared liable to supervision 326 440 Certificate of available services 327 441 Special leave 327 442 What are the surrounds? 327 443 Granting of on-ground or limited off-ground leave 327 444 Applicant profile 327 445 Leave plan or statement 328 446 Granting of extended leave 328 447 Leave plan for extended leave 328 448 Suspension and revocation of extended leave 328 449 Appointment of people to assist the Panel 329 450 Transfer of persons from a participating State to Victoria 329 451 Warrant to arrest person who absconds to Victoria 329 452 Interim disposition order 329 453 New Part 7C inserted 330 PART 7C--INTERNATIONAL FORENSIC PATIENTS 330 73O Definition 330 73P Review of international forensic patients 330 73Q Nominal term of supervision order 331 73R Appeal against unconditional release 333 454 Transitional provision 335 90 International forensic patient--transitional provision 335 Division 3--Amendments to other Acts 336 455 Consequential and other amendments to other Acts 336 456 Amendments consequential on Victoria Police Act 2013 336 457 Amendments consequential on Legal Profession Uniform Law Application Act 2014 336 __________________ xvii

Clause Page SCHEDULE--Consequential and other amendments 337 Division 1--Consequential amendments 337 1 Accident Compensation Act 1985 337 2 Children, Youth and Families Act 2005 337 3 Commission for Children and Young People Act 2012 337 4 Co-operative Housing Societies Act 1958 338 5 Coroners Act 2008 338 6 Corrections Act 1986 338 7 Crimes Act 1958 340 8 Criminal Procedure Act 2009 341 9 Duties Act 2000 341 10 Firearms Act 1996 341 11 Gambling Regulation Act 2003 341 12 Guardianship and Administration Act 1986 342 13 Health Services Act 1988 342 14 Human Services (Complex Needs) Act 2009 343 15 Information Privacy Act 2000 343 34D Referral of complaint to Mental Health Complaints Commissioner 343 16 International Transfer of Prisoners (Victoria) Act 1998 343 17 Juries Act 2000 344 18 Land Act 1958 344 19 Land Tax Act 2005 344 20 Magistrates' Court Act 1989 344 21 Ombudsman Act 1973 344 22 Payroll Tax Act 2007 345 23 Property Law Act 1958 345 24 Public Administration Act 2004 345 25 Residential Tenancies Act 1997 345 26 Serious Sex Offenders (Detention and Supervision) Act 2009 345 27 Sex Offenders Registration Act 2004 346 28 Summary Offences Act 1966 347 29 Supported Residential Services (Private Proprietors) Act 2010 347 30 Tobacco Act 1987 347 31 Transport Accident Act 1986 348 32 Trustee Act 1958 348 33 Victims of Crime Assistance Act 1996 348 34 Workplace Injury Rehabilitation and Compensation Act 2013 348 xviii

Clause Page Division 2--Statute law revision 348 35 Disability Act 2006 348 36 Health Services Act 1988 348 37 Supported Residential Services (Private Proprietors) Act 2010 349 ENDNOTES 350 xix

Mental Health Act 2014 No. of 2014 [Assented to ] The Parliament of Victoria enacts: PART 1--PRELIMINARY 1 Purposes The purposes of this Act are-- (a) to provide a legislative scheme for the assessment of persons who appear to have mental illness and for the treatment of persons with mental illness; and 1

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 2 (b) to provide for the appointment of the chief psychiatrist; and (c) to establish the Mental Health Tribunal; and (d) to establish the Mental Health Complaints Commissioner; and (e) to continue the Victorian Institute of Forensic Mental Health; and (f) to provide for the appointment and functions of community visitors; and (g) to repeal the Mental Health Act 1986; and (h) to amend the Sentencing Act 1991 and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and (i) to make consequential and statute law amendments to other Acts. 2 Commencement (1) This Act (other than subsections (2) and (3)) comes into operation on 1 July 2014. (2) Section 456 comes into operation on the later of-- (a) 1 July 2014; and (b) the day on which section 278 of the Victoria Police Act 2013 comes into operation. (3) Section 457 comes into operation on the later of-- (a) 1 July 2014; and (b) the day on which section 158 of the Legal Profession Uniform Law Application Act 2014 comes into operation. 2

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 3 Definitions (1) In this Act-- Aboriginal person means a person who-- (a) is descended from an Aborigine or Torres Strait Islander; and (b) identifies as an Aborigine or Torres Strait Islander; and (c) is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community; accept a complaint means agree to deal with a complaint; Adult Parole Board means the Adult Parole Board established by section 61 of the Corrections Act 1986; advance statement has the meaning given in section 19; Assessment Order means an Order within the meaning of section 28; Australian Health Practitioner Regulation Agency means the Australian Health Practitioner Regulation Agency established by section 23 of the Health Practitioner Regulation National Law; Australian legal practitioner has the same meaning as it has in the Legal Profession Act 2004; Australian lawyer has the same meaning as it has in the Legal Profession Act 2004; authorised officer means an authorised officer appointed under section 146; 3

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 authorised person means-- (a) a police officer; or (b) an ambulance paramedic; or (c) a registered medical practitioner employed or engaged by a designated mental health service; or (d) a mental health practitioner; or (e) a member of a class of prescribed persons; authorised psychiatrist means a person appointed as an authorised psychiatrist for a designated mental health service under section 150; authorised witness means-- (a) a registered medical practitioner; or (b) a mental health practitioner; or (c) a person who may witness the signing of a statutory declaration under section 107A of the Evidence (Miscellaneous Provisions) Act 1958; board of directors means the board of directors of the Victorian Institute of Forensic Mental Health; bodily restraint means a form of physical or mechanical restraint that prevents a person having free movement of his or her limbs, but does not include the use of furniture (including beds with cot sides and chairs with tables fitted on their arms) that restricts the person's ability to get off the furniture; capacity to give informed consent has the meaning given in section 68; 4

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 care relationship has the meaning given in section 4 of the Carers Recognition Act 2012; carer has the same meaning as in section 3 of the Carers Recognition Act 2012 but does not include a parent if the person to whom care is provided is under the age of 16 years; Chief Commissioner of Police means the Chief Commissioner of Police appointed under the Police Regulation Act 1958; chief psychiatrist means the person appointed as chief psychiatrist under section 119; close a complaint means refuse to deal with a complaint or cease dealing with a complaint; Commissioner means the person appointed as Mental Health Complaints Commissioner under section 226; Community Assessment Order means an Order within the meaning of section 28(2); Community Court Assessment Order means an Order within the meaning of section 90(2) of the Sentencing Act 1991; Community Temporary Treatment Order means an Order within the meaning of section 45(2); Community Treatment Order means an Order within the meaning of section 52(2); Community Visitors Mental Health Board means the body referred to in section 221; compliance notice means a notice served on a mental health service provider under section 260; 5

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 compulsory patient means a person who is subject to-- (a) an Assessment Order; or (b) a Court Assessment Order; or (c) a Temporary Treatment Order; or (d) a Treatment Order; consent, in relation to health information, has the same meaning as it has in section 3(1) of the Health Records Act 2001; consumer means a person who-- (a) has received mental health services from a mental health service provider; or (b) is receiving mental health services from a mental health service provider; or (c) was assessed by an authorised psychiatrist and was not provided with treatment; or (d) sought or is seeking mental health services from a mental health service provider and was or is not provided with mental health services; Court Assessment Order means an Order within the meaning of section 90 of the Sentencing Act 1991; Court Secure Treatment Order means an Order within the meaning of section 94A of the Sentencing Act 1991; custody to Secretary order has the same meaning as in section 3(1) of the Children, Youth and Families Act 2005; 6

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 designated mental health service means-- (a) a prescribed public hospital within the meaning of section 3(1) of the Health Services Act 1988; or (b) a prescribed public health service within the meaning of section 3(1) of the Health Services Act 1988; or (c) a prescribed denominational hospital within the meaning of section 3(1) of the Health Services Act 1988; or (d) a prescribed privately-operated hospital within the meaning of section 3(1) of the Health Services Act 1988; or (e) a prescribed private hospital within the meaning of section 3(1) of the Health Services Act 1988 that is registered as a health service establishment under Part 4 of that Act; or (f) the Victorian Institute of Forensic Mental Health; diverse means culturally, religiously, racially and linguistically diverse; domestic partner of a person means-- (a) a person who is in a registered domestic relationship with the person; or (b) a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender); electroconvulsive treatment means the application of electric current to specific areas of a person's head to produce a generalised seizure; 7

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 entitled patient has the meaning given in section 78; forensic patient has the meaning given in section 305; guardian has the same meaning as it has in section 3(1) of the Guardianship and Administration Act 1986; guardianship to Secretary order has the same meaning as it has in section 3(1) of the Children, Youth and Families Act 2005; health information has the same meaning as it has in section 3(1) of the Health Records Act 2001; health practitioner means an individual who practises a health profession; Health Privacy Principles means any of the Health Privacy Principles set out in Schedule 1 to the Health Records Act 2001; health profession has the same meaning as in section 5 of the Health Practitioner Regulation National Law; informed consent has the meaning given in section 69; inpatient means a patient who is detained in a designated mental health service; Inpatient Assessment Order means an Order within the meaning of section 28(3); Inpatient Court Assessment Order means an Order within the meaning of section 90(3) of the Sentencing Act 1991; Inpatient Temporary Treatment Order means an Order within the meaning of section 45(3); 8

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 Inpatient Treatment Order means an Order within the meaning of section 52(3); Institute means the Victorian Institute of Forensic Mental Health continued under section 328; investigator means a member of staff or a contractor referred to in section 230 to whom the Commissioner has delegated his or her investigative functions; medical treatment has the meaning given in section 7; mental health practitioner means a person who is employed or engaged by a designated mental health service and is a-- (a) registered psychologist; or (b) registered nurse; or (c) social worker; or (d) registered occupational therapist; mental health principles means the principles specified in section 11; mental health service provider means-- (a) a designated mental health service; or (b) a publicly funded mental health community support service; mental illness has the meaning given in section 4; neurosurgery for mental illness means-- (a) any surgical technique or procedure by which one or more lesions are created in a person's brain on the same or on separate occasions for the purpose of treatment; or 9

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 (b) the use of intracerebral electrodes to create one or more lesions in a person's brain on the same or on separate occasions for the purpose of treatment; or (c) the use of intracerebral electrodes to cause stimulation through the electrodes on the same or on separate occasions without creating a lesion in the person's brain for the purpose of treatment; nominated person means a person who is nominated under section 24; Panel means the Forensic Leave Panel established under section 59 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; parent, in relation to a person under the age of 18 years, includes the following-- (a) a person who has custody or daily care and control of the person; (b) a person who has all the duties, powers, responsibilities and authority (whether conferred by a court or otherwise) which by law parents have in relation to their children; (c) any other person who has the legal right to make decisions about medical treatment of the person; party in Part 10 means-- (a) a person who makes a complaint; or (b) the consumer in relation to a complaint; or 10

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 (c) the mental health service provider in relation to which a complaint is made; patient means-- (a) a compulsory patient; or (b) a security patient; or (c) a forensic patient; police officer means a member of the force within the meaning of the Police Regulation Act 1958; psychiatrist means a person who is registered under the Health Practitioner National Law as a medical practitioner in the speciality of psychiatry (other than as a student); Public Advocate means the person appointed as the Public Advocate under Part 3 of the Guardianship and Administration Act 1986; registered dental practitioner means a person who is registered under the Health Practitioner Regulation National Law to practise in the dental profession (other than as a student); registered medical practitioner means a person who is registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); registered nurse means a person who is registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as a nurse (other than as a midwife or as a student) and is in the registered nurses division of that profession; 11

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 registered occupational therapist means a person who is registered under the Health Practitioner Regulation National Law to practise in the occupational therapy profession (other than as a student); registered psychologist means a person who is registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student); restrictive intervention means seclusion or bodily restraint; rules, in Part 8, means rules made by the Rules Committee of the Tribunal; seclusion means the sole confinement of a person to a room or any other enclosed space from which it is not within the control of the person confined to leave; Secretary means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health; Secretary to the Department of Human Services means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Human Services; Secretary to the Department of Justice means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Justice; Secure Treatment Order means an Order within the meaning of section 275; security patient means a person who is not subject to an Order made under Part 4, but is detained in a designated mental health service and is subject to (irrespective of 12

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 whether the person is absent with or without leave from the designated mental health service)-- (a) a Court Secure Treatment Order; or (b) a Secure Treatment Order; senior available next of kin means-- (a) in relation to a deceased child-- (i) if a parent of the child is available, a parent of the child; or (ii) if a parent of the child is not available, a brother or sister of the child who has attained the age of 18 years and who is available; or (iii) if no person referred to in subparagraph (i) or (ii) is available, a person who was the guardian of the child immediately before the death of the child and who is available; (b) in relation to any other deceased person-- (i) if the person, immediately before the person's death, had a spouse or domestic partner and that spouse or domestic partner is available, that spouse or domestic partner; or (ii) if the person, immediately before the person's death, did not have a spouse or domestic partner or the spouse or domestic partner is not available, a son or daughter of the person who has attained the age of 18 years and who is available; or 13

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 3 (iii) if no person referred to in subparagraph (i) or (ii) is available but a parent of the person is available, that parent; or (iv) if no person referred to in subparagraph (i), (ii) or (iii) is available, a brother or sister of the person who has attained the age of 18 years and is available; statement of rights has the meaning given in section 12; Temporary Treatment Order means an Order within the meaning of section 45; treatment has the meaning given in section 6; treatment criteria has the meaning given in section 5; Treatment Order means an Order within the meaning of section 52; Tribunal means the Mental Health Tribunal established under section 152. (2) For the purposes of the definition of domestic partner in subsection (1)-- (a) registered domestic relationship has the same meaning as in the Relationships Act 2008; and (b) in determining whether persons who are not in a registered domestic relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case. 14

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 4 4 What is mental illness? (1) Subject to subsection (2), mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. (2) A person is not to be considered to have mental illness by reason only of any one or more of the following-- (a) that the person expresses or refuses or fails to express a particular political opinion or belief; (b) that the person expresses or refuses or fails to express a particular religious opinion or belief; (c) that the person expresses or refuses or fails to express a particular philosophy; (d) that the person expresses or refuses or fails to express a particular sexual preference, gender identity or sexual orientation; (e) that the person engages in or refuses or fails to engage in a particular political activity; (f) that the person engages in or refuses or fails to engage in a particular religious activity; (g) that the person engages in sexual promiscuity; (h) that the person engages in immoral conduct; (i) that the person engages in illegal conduct; (j) that the person engages in antisocial behaviour; (k) that the person is intellectually disabled; (l) that the person uses drugs or consumes alcohol; 15

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 5 (m) that the person has a particular economic or social status or is a member of a particular cultural or racial group; (n) that the person is or has previously been involved in family conflict; (o) that the person has previously been treated for mental illness. (3) Subsection (2)(l) does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of using drugs or consuming alcohol from being regarded as an indication that a person has mental illness. 5 What are the treatment criteria? The treatment criteria for a person to be made subject to a Temporary Treatment Order or Treatment Order are-- (a) the person has mental illness; and (b) because the person has mental illness, the person needs immediate treatment to prevent-- (i) serious deterioration in the person's mental or physical health; or (ii) serious harm to the person or to another person; and (c) the immediate treatment will be provided to the person if the person is subject to a Temporary Treatment Order or Treatment Order; and (d) there is no less restrictive means reasonably available to enable the person to receive the immediate treatment. 16

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 6 6 What is treatment? For the purposes of this Act-- (a) a person receives treatment for mental illness if things are done to the person in the course of the exercise of professional skills-- (i) to remedy the mental illness; or (ii) to alleviate the symptoms and reduce the ill effects of the mental illness; and (b) treatment includes electroconvulsive treatment and neurosurgery for mental illness. 7 What is medical treatment? In this Act, medical treatment means-- (a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by, or under, the supervision of a registered medical practitioner; or (b) dental treatment (including any dental procedure, operation or examination) normally carried out by or under the supervision of a registered dental practitioner; or (c) the administration of a pharmaceutical drug for which a prescription is required; or (d) any other treatment that is not referred to in paragraph (a), (b) or (c) and is prescribed by the regulations to be medical treatment for the purposes of this Act-- but does not include-- 17

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 8 (e) a special procedure or medical research procedure within the meaning of the Guardianship and Administration Act 1986; or Note Part 4A of the Guardianship and Administration Act 1986 applies to the carrying out of a special procedure or medical research procedure on persons who are incapable of giving consent to that procedure. (f) any non-intrusive examination made for diagnostic purposes (including a visual examination of the mouth, throat, nasal cavity, eyes or ears); or (g) first-aid treatment; or (h) any treatment for mental illness or the effects of mental illness. 8 Provision of advice, notification or information under this Act (1) The contents of any advice, notice or information given or provided to a patient under this Act must be explained by the person giving the advice, notice or information to the maximum extent possible to the patient in the language, mode of communication and terms which the patient is most likely to understand. (2) An explanation given under subsection (1) must, whenever reasonable, be given both orally and in writing. 9 Act binds the Crown (1) This Act binds the Crown in right of Victoria and, to the extent that the legislative power of the Parliament extends, the Crown in all its other capacities. 18

Mental Health Act 2014 No. of 2014 Part 1--Preliminary s. 9 (2) To avoid doubt, the Crown is a body corporate for the purposes of this Act and the regulations. __________________ 19

Mental Health Act 2014 No. of 2014 Part 2--Objectives and Mental Health Principles s. 10 PART 2--OBJECTIVES AND MENTAL HEALTH PRINCIPLES 10 Objectives This Act has the following objectives-- (a) to provide for the assessment of persons who appear to have mental illness and the treatment of persons who have mental illness; (b) to provide for persons to receive assessment and treatment in the least restrictive way possible with the least possible restrictions on human rights and human dignity; (c) to protect the rights of persons receiving assessment and treatment; (d) to enable and support persons who have mental illness or appear to have mental illness-- (i) to make, or participate in, decisions about their assessment, treatment and recovery; and (ii) to exercise their rights under this Act; (e) to provide oversight and safeguards in relation to the assessment of persons who appear to have mental illness and the treatment of persons who have mental illness; (f) to promote the recovery of persons who have mental illness; (g) to ensure that persons who are assessed and treated under this Act are informed of their rights under this Act; (h) to recognise the role of carers in the assessment, treatment and recovery of persons who have mental illness. 20

Mental Health Act 2014 No. of 2014 Part 2--Objectives and Mental Health Principles s. 11 11 The mental health principles (1) The following are the mental health principles-- (a) persons receiving mental health services should be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred; (b) persons receiving mental health services should be provided those services with the aim of bringing about the best possible therapeutic outcomes and promoting recovery and full participation in community life; (c) persons receiving mental health services should be involved in all decisions about their assessment, treatment and recovery and be supported to make, or participate in, those decisions, and their views and preferences should be respected; (d) persons receiving mental health services should be allowed to make decisions about their assessment, treatment and recovery that involve a degree of risk; (e) persons receiving mental health services should have their rights, dignity and autonomy respected and promoted; (f) persons receiving mental health services should have their medical and other health needs, including any alcohol and other drug problems, recognised and responded to; (g) persons receiving mental health services should have their individual needs (whether as to culture, language, communication, age, disability, religion, gender, sexuality or other matters) recognised and responded to; 21

Mental Health Act 2014 No. of 2014 Part 2--Objectives and Mental Health Principles s. 11 (h) Aboriginal persons receiving mental health services should have their distinct culture and identity recognised and responded to; (i) children and young persons receiving mental health services should have their best interests recognised and promoted as a primary consideration, including receiving services separately from adults, whenever this is possible; (j) children, young persons and other dependents of persons receiving mental health services should have their needs, wellbeing and safety recognised and protected; (k) carers (including children) for persons receiving mental health services should be involved in decisions about assessment, treatment and recovery, whenever this is possible; (l) carers (including children) for persons receiving mental health services should have their role recognised, respected and supported. (2) A mental health service provider must have regard to the mental health principles in the provision of mental health services. (3) A person must have regard to the mental health principles in performing any duty or function or exercising any power under or in accordance with this Act. __________________ 22

Mental Health Act 2014 No. of 2014 Part 3--Protection of Rights s. 12 PART 3--PROTECTION OF RIGHTS Division 1--Statement of rights 12 What is a statement of rights? A statement of rights is a document in a form approved by the Secretary that-- (a) sets out a person's rights under this Act while being assessed or receiving treatment in relation to his or her mental illness; and (b) contains information as to the process by which the person will be assessed or receive treatment. 13 Statement of rights must be explained (1) An authorised psychiatrist or psychiatrist (as the case may be) must ensure that when a person is given a statement of rights, the person also receives an oral explanation of the statement of rights. (2) The person who gives an oral explanation of a statement of rights to another person under subsection (1) must answer any questions asked by that person as clearly and completely as possible. (3) If the person to whom the statement of rights relates is incapable of understanding the information contained in the statement or the oral explanation at the time when it would otherwise be provided, the person who is to give the statement or oral explanation must ensure that reasonable further attempts are made to provide the information or explanation at a time when the person is able to understand the information or explanation. Note See also the requirements of section 8. 23

Mental Health Act 2014 No. of 2014 Part 3--Protection of Rights s. 14 Division 2--Right to communicate 14 Definition In this Division, communicate, in relation to an inpatient, means-- (a) sending from, or receiving at, a designated mental health service uncensored private communication which may include communication by letter, telephone or electronic means; or (b) receiving visitors at a designated mental health service at reasonable times, including the Australian legal practitioner or nominated person of the inpatient. 15 Right to communicate (1) Subject to this Division, an inpatient has a right to communicate lawfully with any person. (2) Without limiting the generality of subsection (1), an inpatient has a right to communicate with any person for the purpose of seeking legal advice or legal representation. (3) The members of staff of a designated mental health service must ensure that reasonable steps are taken to assist an inpatient to communicate lawfully with any person. 16 Restriction on right to communicate (1) Subject to subsection (2), an authorised psychiatrist may in writing direct staff at a designated mental health service to restrict an inpatient's right to communicate if the authorised psychiatrist is satisfied that the restriction is reasonably necessary to protect the health, safety and wellbeing of the inpatient or of another person. 24

Mental Health Act 2014 No. of 2014 Part 3--Protection of Rights s. 17 (2) A direction cannot be given under subsection (1) which restricts an inpatient's right to communicate with-- (a) a legal representative; or (b) the chief psychiatrist; or (c) the Commissioner; or (d) the Tribunal; or (e) a community visitor. (3) An authorised psychiatrist must ensure that if he or she directs that an inpatient's right to communicate be restricted, those restrictions are the least restrictive possible to protect the health, safety and wellbeing of the inpatient or of another person. 17 Persons to be notified of restriction on inpatient's right to communicate An authorised psychiatrist who makes a direction under section 16 to restrict an inpatient's right to communicate must ensure that reasonable steps are taken to inform the inpatient and the following persons in relation to the inpatient about the restriction, and the reason for it-- (a) the nominated person; (b) a guardian; (c) a carer; (d) a parent, if the inpatient is under the age of 16 years; (e) the Secretary to the Department of Human Services, if the inpatient is the subject of a custody to Secretary order or a guardianship to Secretary order. 25

Mental Health Act 2014 No. of 2014 Part 3--Protection of Rights s. 18 18 Restriction on right to communicate to be monitored regularly (1) An authorised psychiatrist who makes a direction under section 16 to restrict an inpatient's right to communicate must review his or her decision on a regular basis to determine whether the restriction needs to be continued. (2) If the authorised psychiatrist is satisfied that it is no longer necessary to restrict the inpatient's right to communicate, the authorised psychiatrist must immediately cease the restriction. Division 3--Advance statements 19 What is an advance statement? An advance statement is a document that sets out a person's preferences in relation to treatment in the event that the person becomes a patient. 20 Making an advance statement (1) An advance statement may be made at any time and must-- (a) be in writing; and (b) be signed and dated by the person making the advance statement; and (c) be witnessed by an authorised witness; and (d) include a statement signed by the authorised witness stating that-- (i) in the opinion of the witness, the person making the advance statement understands what an advance statement is and the consequences of making the statement; and 26

Mental Health Act 2014 No. of 2014 Part 3--Protection of Rights s. 21 (ii) the witness observed the person making the advance statement sign the statement; and (iii) the witness is an authorised witness. (2) An advance statement is effective from the time it is made until it is revoked. 21 Revoking an advance statement (1) An advance statement is revoked if the person who made the advance statement-- (a) makes a new advance statement under section 20; or (b) revokes the advance statement in accordance with subsection (2). (2) A revocation of an advance statement under this section must-- (a) be in writing and state that the advance statement made under section 20 is revoked; and (b) be signed and dated by the person who made the revocation; and (c) be witnessed by an authorised witness; and (d) include a statement signed by the authorised witness stating that-- (i) in the opinion of the witness, the person revoking the advance statement understands the consequences of revoking the advance statement; and (ii) the witness observed the person revoking the advance statement sign the revocation; and (iii) the witness is an authorised witness. 27

Mental Health Act 2014 No. of 2014 Part 3--Protection of Rights s. 22 22 Advance statement must not be amended (1) An advance statement must not be amended. (2) A person who changes his or her mind about the preferences he or she expressed regarding treatment in an advance statement and who wishes to record new preferences must make a new advance statement under section 20. Division 4--Nominated persons 23 Role of nominated person The role of a nominated person in relation to a patient is-- (a) to provide the patient with support and to help represent the interests of the patient; and (b) to receive information about the patient in accordance with this Act; and (c) to be one of the persons who must be consulted in accordance with this Act about the patient's treatment; and (d) to assist the patient to exercise any right that the patient has under this Act. 24 Nomination of nominated person (1) Subject to this section, a person may nominate another person to be a nominated person for himself or herself. (2) The nomination of a nominated person must-- (a) be in writing; and (b) be signed and dated by the person making the nomination; and (c) specify the name and contact details of the person nominated; and 28

Mental Health Act 2014 No. of 2014 Part 3--Protection of Rights s. 25 (d) include a statement signed by the nominated person that he or she agrees to be the nominated person; and (e) be witnessed by an authorised witness; and (f) include a statement signed by the authorised witness stating that-- (i) in the opinion of the witness, the person making the nomination understands what a nomination is and the consequences of making a nomination; and (ii) the witness observed the person sign the nomination; and (iii) the witness is an authorised witness. (3) The person nominated to be the nominated person must not be the person who witnesses the nomination. (4) A nomination made under this section is effective from the time it is made until it is revoked. 25 Revocation of nomination A nomination is revoked if-- (a) the person who made the nomination-- (i) makes a new nomination under section 24; or (ii) revokes the nomination under section 26; or (b) the nominated person declines to act as a nominated person in accordance with section 27. 29

Mental Health Act 2014 No. of 2014 Part 3--Protection of Rights s. 26 26 Revocation of nomination by person who made the nomination (1) Subject to this section, a person who has made a nomination may revoke it at any time. (2) A revocation must-- (a) be in writing and state that the nomination is revoked; and (b) be signed and dated by the person who made the revocation; and (c) be witnessed by an authorised witness; and (d) include a statement signed by the authorised witness stating that-- (i) in the opinion of the witness, the person making the revocation understands what a revocation is and the consequences of making a revocation; and (ii) the witness observed the person sign the revocation; and (iii) the witness is an authorised witness. (3) A person who revokes a nomination must-- (a) take reasonable steps to inform the nominated person of the revocation; and (b) if the person is a patient, inform the authorised psychiatrist. 27 Nominated person may decline to act as nominated person at any time (1) A person nominated to be a nominated person under section 24 may decline at any time to continue being a nominated person. 30

Mental Health Act 2014 No. of 2014 Part 3--Protection of Rights s. 27 (2) A nominated person who declines to continue being a nominated person must-- (a) take reasonable steps to inform the person who made the nomination that he or she has declined to continue being a nominated person; and (b) if the person who made the nomination is a patient, inform the authorised psychiatrist that he or she has declined to continue being a nominated person. __________________ 31

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 28 PART 4--COMPULSORY PATIENTS Division 1--Assessment Orders 28 What is an Assessment Order? (1) An Assessment Order is an Order made by a registered medical practitioner or mental health practitioner that enables a person who is subject to the Assessment Order to be compulsorily-- (a) examined by an authorised psychiatrist to determine whether the treatment criteria apply to the person; or (b) taken to, and detained in, a designated mental health service and examined there by an authorised psychiatrist to determine whether the treatment criteria apply to the person. (2) An Assessment Order referred to in subsection (1)(a) is a Community Assessment Order. (3) An Assessment Order referred to in subsection (1)(b) is an Inpatient Assessment Order. 29 Criteria for an Assessment Order The criteria for a person to be made subject to an Assessment Order are-- (a) the person appears to have mental illness; and (b) because the person appears to have mental illness, the person appears to need immediate treatment to prevent-- (i) serious deterioration in the person's mental or physical health; or (ii) serious harm to the person or to another person; and 32

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 30 (c) if the person is made subject to an Assessment Order, the person can be assessed; and (d) there is no less restrictive means reasonably available to enable the person to be assessed. 30 Making an Assessment Order (1) Before a registered medical practitioner or mental health practitioner makes an Assessment Order in respect of a person, he or she must-- (a) to the extent that is reasonable in the circumstances-- (i) inform the person that he or she will be examined by the practitioner; and (ii) explain the purpose of this examination to the person; and (b) examine the person. (2) A registered medical practitioner or mental health practitioner may make an Assessment Order in respect of a person if-- (a) the registered medical practitioner or mental health practitioner is satisfied that the criteria specified in section 29 apply to the person; and (b) not more than 24 hours have passed since the registered medical practitioner or mental health practitioner examined the person. (3) In determining whether the criteria specified in section 29 apply to the person, the registered medical practitioner or mental health practitioner may consider information communicated to the practitioner by a person other than the person being assessed. 33

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 31 (4) A registered medical practitioner or mental health practitioner may only make a person subject to an Inpatient Assessment Order if the practitioner is satisfied that assessment of the person cannot occur in the community. 31 Contents of an Assessment Order An Assessment Order must-- (a) state whether the Order is a Community Assessment Order or an Inpatient Assessment Order; and (b) include any information prescribed for the purposes of this section. 32 Information requirements in relation to an Assessment Order (1) A registered medical practitioner or mental health practitioner who makes an Assessment Order must-- (a) notify the authorised psychiatrist of the relevant designated mental health service that the Assessment Order is made and give the authorised psychiatrist a copy of the Order; and (b) to the extent that is reasonable in the circumstances-- (i) inform the person who is subject to the Assessment Order that he or she is subject to an Assessment Order; and (ii) give the person a copy of the Order and a copy of the relevant statement of rights; and Note See Division 1 of Part 3 in relation to the statement of rights. 34

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 33 (iii) explain the purpose and effect of the Order to the person. (2) As soon as practicable after being notified under subsection (1) that the Assessment Order is made, the authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the following persons in relation to the person who is subject to the Order that the Order has been made-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that assessing the person will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order; and (b) to give the persons referred to in paragraph (a) a copy of the Order and the relevant statement of rights. 33 Person subject to an Inpatient Assessment Order to be taken to a designated mental health service In the case of an Inpatient Assessment Order, as soon as practicable, but not later than 72 hours after the Order is made, the person who is subject to the Order must be taken to a designated mental health service. 35

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 34 34 Duration of an Assessment Order (1) An Assessment Order comes into force when the Order is made and remains in force, unless the Assessment Order is extended in accordance with this section or revoked in accordance with section 37-- (a) in the case of a Community Assessment Order, for a period of 24 hours; or (b) in the case of an Inpatient Assessment Order for a period (whichever is the shorter)-- (i) ending 24 hours after the person who is subject to the Order is received at a designated mental health service in accordance with the Order; or (ii) of 72 hours, if the person who is subject to the Order is not received at a designated mental health service. (2) If, after examining the person who is subject to the Assessment Order, the authorised psychiatrist is not able to determine whether the treatment criteria apply to the person, the authorised psychiatrist may extend the duration of the Order for a period not exceeding 24 hours from the time that the Order is extended. (3) The duration of an Assessment Order may not be extended more than twice in accordance with subsection (2). (4) Before extending the duration of an Assessment Order under subsection (2), the authorised psychiatrist must examine the person who is subject to the Assessment Order. 36

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 35 35 Variation of an Assessment Order (1) Subject to subsection (3), before an authorised psychiatrist completes an assessment of a person who is subject to an Assessment Order, a registered medical practitioner or mental health practitioner may vary the Assessment Order from-- (a) a Community Assessment Order to an Inpatient Assessment Order; or (b) an Inpatient Assessment Order to a Community Assessment Order. (2) A registered medical practitioner or mental health practitioner may only vary a Community Assessment Order to an Inpatient Assessment Order if the registered medical practitioner or mental health practitioner is satisfied that assessment of the person subject to the Order cannot occur in the community. (3) A registered medical practitioner or mental health practitioner who varies an Assessment Order must-- (a) notify the authorised psychiatrist of the relevant designated mental health service that the Assessment Order has been varied; and (b) give the authorised psychiatrist a copy of the varied Order; and (c) ensure that reasonable steps are taken-- (i) to inform the person who is subject to the varied Assessment Order that the Order has been varied; and (ii) to give the person a copy of the varied Order and a copy of the relevant statement of rights; and 37

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 35 (iii) to explain the purpose and effect of the variation to the person. (4) As soon as practicable after being notified under subsection (3) that the Assessment Order has been varied, the authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the following persons in relation to the person who is subject to a varied Assessment Order that the Order has been varied-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the variation will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order; and (b) to give the persons referred to in paragraph (a) a copy of the varied Order and the relevant statement of rights. (5) A person whose Community Assessment Order is varied to an Inpatient Assessment Order and who is not already at a designated mental health service must be taken to the designated mental health service as soon as practicable after the Order is varied. 38

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 36 36 Assessment of person subject to Assessment Order by authorised psychiatrist (1) An authorised psychiatrist must examine a person who is subject to an Assessment Order as soon as practicable after-- (a) the Order is made, in the case of a Community Assessment Order; or (b) the person is received at a designated mental health service, in the case of an Inpatient Assessment Order. (2) The authorised psychiatrist must, to the extent that is reasonable in the circumstances, explain the purpose of the examination to the person being assessed before starting each examination during the course of the assessment. (3) The authorised psychiatrist must determine whether the treatment criteria apply to the person subject to the Assessment Order before the Assessment Order expires. 37 Revocation or expiry of an Assessment Order (1) An authorised psychiatrist must immediately revoke an Assessment Order if, after assessing the person subject to the Order, the authorised psychiatrist is satisfied that the treatment criteria do not apply to the person. (2) An Assessment Order in relation to a person expires at the sooner of the following-- (a) at the end of the relevant period referred to in section 34; (b) the person is made subject to a Temporary Treatment Order. 39

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 38 (3) As soon as practicable after the Assessment Order is revoked or expires, the authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the person that the person is no longer subject to an Assessment Order; and (b) to explain the effect of the revocation or expiry of the Assessment Order to the person; and (c) to inform the following persons in relation to the person subject to the Order that the Order has been revoked or has expired-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the revocation or expiry of the Order will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. 38 Treatment during an Assessment Order (1) Subject to subsection (2), a person who is subject to an Assessment Order must not be given treatment. (2) A person who is subject to an Assessment Order may be given treatment if-- (a) the person gives informed consent to the treatment; or 40

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 39 (b) a registered medical practitioner employed or engaged by the designated mental health service is satisfied that urgent treatment is necessary to prevent-- (i) serious deterioration in the mental or physical health of the person; or (ii) serious harm to the person or to another person. Division 2--Court Assessment Orders Note See Part 5 of the Sentencing Act 1991 in relation to Court Assessment Orders. 39 Examination by authorised psychiatrist (1) On each occasion before examining a person who is subject to a Court Assessment Order, the authorised psychiatrist must explain to the person, to the extent that is reasonable in the circumstances, the purpose of the examination. (2) In the case of a Community Court Assessment Order, an authorised psychiatrist must-- (a) examine a person who is subject to the Order as soon as practicable after the Order is made; and (b) complete his or her assessment of the person within 7 days after the Order is made. (3) In the case of an Inpatient Court Assessment Order, an authorised psychiatrist must-- (a) examine the person as soon as practicable after the person is received at the designated mental health service; and (b) complete his or her assessment of the person within 7 days after the person is received at the designated mental health service. 41

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 40 40 Notification requirements in relation to Court Assessment Orders (1) As soon as practicable after a person is made subject to a Community Court Assessment Order or a person who is subject to an Inpatient Court Assessment Order is received at a designated mental health service, the authorised psychiatrist must ensure that reasonable steps are taken to inform the following persons in relation to the person subject to the Order that the Order has been made-- (a) the nominated person; (b) a guardian; (c) a carer, if the authorised psychiatrist is satisfied that assessing the person will directly affect the carer and the care relationship; (d) a parent, if the person is under the age of 16 years; (e) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. (2) As soon as practicable after a person is made subject to a Community Court Assessment Order or a person who is subject to an Inpatient Court Assessment Order is received at a designated mental health service, the authorised psychiatrist must ensure that reasonable steps are taken to give a copy of the Order and the relevant statement of rights to-- (a) the person who is subject to the Order; and (b) the persons referred to in subsection (1). Note See Division 1 of Part 3 in relation to statement of rights. 42

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 41 41 Variation of a Court Assessment Order (1) Subject to subsection (2), before an authorised psychiatrist completes an assessment of a person subject to a Court Assessment Order, the authorised psychiatrist may vary the Order from-- (a) a Community Court Assessment Order to an Inpatient Court Assessment Order; or (b) an Inpatient Court Assessment Order to a Community Court Assessment Order. (2) An authorised psychiatrist may only vary a Community Court Assessment Order to an Inpatient Court Assessment Order if the authorised psychiatrist is satisfied that assessment of the person subject to the Order cannot occur in the community. (3) As soon as practicable after varying a Court Assessment Order, an authorised psychiatrist who varies the Court Assessment Order must ensure that reasonable steps are taken-- (a) to inform the person who is subject to the varied Court Assessment Order that the Order has been varied; and (b) to give the person a copy of the varied Order and a copy of the relevant statement of rights; and (c) to explain the purpose and effect of the variation; and (d) to inform the following persons in relation to the person who is subject to the varied Order that the Order has been varied-- (i) the nominated person; (ii) a guardian; 43

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 42 (iii) a carer, if the authorised psychiatrist is satisfied that the variation will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order; and (e) to give the persons referred to in paragraph (d) a copy of the varied Order and the relevant statement of rights; and (f) to inform the court that made the Court Assessment Order that the Order has been varied. (4) A person whose Community Court Assessment Order is varied to an Inpatient Court Assessment Order and who is not already at a designated mental health service must be taken to the designated mental health service as soon as practicable after the Order is varied. 42 Treatment during Court Assessment Order (1) Unless subsection (2) applies, a person who is subject to a Court Assessment Order must not be given treatment. (2) The person may be given treatment if-- (a) the person gives informed consent to the treatment; or 44

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 43 (b) a registered medical practitioner employed or engaged by the designated mental health service is satisfied that urgent treatment is necessary to prevent-- (i) serious deterioration in the mental or physical health of the person; or (ii) serious harm to the person or to another person; or (c) the authorised psychiatrist makes a Temporary Treatment Order in relation to the person in accordance with section 46; or (d) the person is subject to an existing Temporary Treatment Order or Treatment Order that was made before the Court Assessment Order was made. 43 Authorised psychiatrist to provide report to court On completing an assessment of a person who is subject to a Court Assessment Order, the authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the person that the assessment is complete; and (b) to inform the following persons in relation to the person that the assessment is complete-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that assessment of the person will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; 45

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 44 (v) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order; and (c) to notify the court that made the Court Assessment Order that the assessment is complete; and (d) to provide a report to the court that-- (i) states if the authorised psychiatrist-- (A) made the person subject to a Temporary Treatment Order; and (B) is satisfied that the criteria specified in section 94B(1)(c) of the Sentencing Act 1991 apply to the person; and (C) recommends making the person subject to a Court Secure Treatment Order; and (ii) includes information as to the person's current mental condition and any other information that the authorised psychiatrist considers is appropriate. 44 Authorised psychiatrist may make Temporary Treatment Order Despite anything to the contrary in Division 3, an authorised psychiatrist may make a Temporary Treatment Order in relation to a person who is subject to a Court Assessment Order. 46

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 45 Division 3--Temporary Treatment Orders 45 What is a Temporary Treatment Order? (1) A Temporary Treatment Order is an Order made by an authorised psychiatrist after assessing a person (in accordance with an Assessment Order or a Court Assessment Order) that enables the person who is subject to the Temporary Treatment Order to be compulsorily-- (a) treated in the community; or (b) taken to, and detained and treated in, a designated mental health service. (2) An Order referred to in subsection (1)(a) is a Community Temporary Treatment Order. (3) An Order referred to in subsection (1)(b) is an Inpatient Temporary Treatment Order. 46 Authorised psychiatrist may make Temporary Treatment Order (1) Subject to section 47, an authorised psychiatrist may make a Temporary Treatment Order in respect of a person who is subject to an Assessment Order or a Court Assessment Order if the authorised psychiatrist-- (a) has examined the person; and (b) is satisfied that the treatment criteria apply to the person. (2) In determining whether the treatment criteria apply to the person, the authorised psychiatrist-- (a) must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (i) the person's views and preferences about treatment of his or her mental illness and the reasons for those views 47

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 47 and preferences, including any recovery outcomes that the person would like to achieve; (ii) the views and preferences of the person expressed in his or her advance statement; (iii) the views of the person's nominated person; (iv) the views of a guardian of the person; (v) the views of a carer of the person, if the authorised psychiatrist is satisfied that making a Temporary Treatment Order will directly affect the carer and the care relationship; (vi) the views of a parent of the person, if the person is under the age of 16 years; (vii) the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order; and (b) may consider other information communicated to the authorised psychiatrist by persons other than the person who was examined. 47 Restriction on who can make Temporary Treatment Order The authorised psychiatrist who made an Assessment Order in relation to a person must not make the person subject to a Temporary Treatment Order as a consequence of that Assessment Order. 48

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 48 48 Community or Inpatient Temporary Treatment Order? (1) An authorised psychiatrist who makes a Temporary Treatment Order in respect of a person must determine whether the Order is-- (a) a Community Temporary Treatment Order; or (b) an Inpatient Temporary Treatment Order. (2) For the purposes of making a determination under subsection (1), the authorised psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (a) the person's views and preferences about treatment of his or her mental illness and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve; (b) the views and preferences of the person expressed in his or her advance statement; (c) the views of the person's nominated person; (d) the views of a guardian of the person; (e) the views of a carer of the person, if the authorised psychiatrist is satisfied that the determination will directly affect the carer and the care relationship; (f) the views of a parent of the person, if the person is under the age of 16 years; (g) the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. 49

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 49 (3) The authorised psychiatrist may only make a person subject to an Inpatient Temporary Treatment Order if the authorised psychiatrist is satisfied that treatment of the person cannot occur within the community. 49 Contents of a Temporary Treatment Order A Temporary Treatment Order must-- (a) state whether the Order is a Community Temporary Treatment Order or an Inpatient Temporary Treatment Order; and (b) include any information prescribed for the purposes of this section. 50 Information and other requirements in relation to Temporary Treatment Orders (1) As soon as practicable after making a Temporary Treatment Order, the authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the person who is subject to the Temporary Treatment Order that he or she is subject to a Temporary Treatment Order; and (b) to give the person a copy of the Temporary Treatment Order and a copy of the relevant statement of rights; and Note See Division 1 of Part 3 in relation to statement of rights. (c) to explain to the person the purpose and effect of the Temporary Treatment Order; and (d) to inform the person that he or she will receive treatment in relation to his or her mental illness. 50

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 50 (2) As soon as practicable after a Temporary Treatment Order is made, the authorised psychiatrist must-- (a) notify the Tribunal that the Order has been made; and (b) ensure that reasonable steps are taken-- (i) to inform the following persons in relation to the person subject to the Order that the Order has been made-- (A) the nominated person; (B) a guardian; (C) a carer, if the authorised psychiatrist is satisfied that treating the person will directly affect the carer and the care relationship; (D) a parent, if the person is under the age of 16 years; (E) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order; and (ii) to give the persons referred to in subparagraph (i) a copy of the Order and the relevant statement of rights. (3) A person who is subject to an Inpatient Temporary Treatment Order and who is not already at a designated mental health service must be taken to a designated mental health service as soon as practicable after the Order is made. 51

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 51 51 Duration of a Temporary Treatment Order (1) Unless a Temporary Treatment Order is revoked or expires in accordance with section 55, 61 or 62, it remains in force for a period of 28 days. (2) The making of a Court Assessment Order in relation to a person has no effect on the duration of a Temporary Treatment Order in relation to the same person. (3) A variation of a Temporary Treatment Order in accordance with section 58 does not affect the duration of the Order. Note See section 192 in relation to the Tribunal extending the duration of a Temporary Treatment Order. Division 4--Treatment Orders 52 What is a Treatment Order? (1) A Treatment Order is an Order made by the Tribunal that enables a person who is subject to a Treatment Order to be compulsorily-- (a) treated in the community; or (b) taken to, and detained and treated in, a designated mental health service. (2) An Order referred to in subsection (1)(a) is a Community Treatment Order. (3) An Order referred to in subsection (1)(b) is an Inpatient Treatment Order. 53 Tribunal to determine whether to make person subject to Treatment Order (1) The Tribunal must conduct a hearing to determine whether to make a Treatment Order under section 55 in relation to a person who is subject to a Temporary Treatment Order. 52

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 54 (2) The hearing under subsection (1) must be conducted before the expiry of the Temporary Treatment Order. Note See section 192 in relation to the Tribunal extending the duration of a Temporary Treatment Order. 54 Authorised psychiatrist may make an application for a Treatment Order (1) An authorised psychiatrist may apply to the Tribunal for a Treatment Order in relation to a person who is currently subject to a Treatment Order if the authorised psychiatrist-- (a) has examined the person; and (b) is satisfied that the treatment criteria apply to the person. (2) In determining whether the treatment criteria apply to the person, the authorised psychiatrist may consider information communicated to the authorised psychiatrist by persons other than the person who was examined. (3) For the purposes of subsection (1), an application to the Tribunal must be made at least 10 business days before the expiry of the Treatment Order to which the person is currently subject. (4) Despite anything to the contrary in this section or section 187, the principal registrar of the Tribunal may accept an application made under this section if-- (a) the application is made not more than 10 business days before the expiry of the Treatment Order to which the person was last subject; and 53

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 55 (b) accepting the application is reasonable having regard to all the circumstances. (5) The Tribunal must conduct a hearing to determine whether to make a Treatment Order in relation to a person who is currently subject to a Treatment Order if the application is made in accordance with this section. 55 Making a Treatment Order (1) After conducting a hearing under section 53, 54, 58 or 60, the Tribunal must-- (a) make a Treatment Order in respect of a person if the Tribunal is satisfied that the treatment criteria apply to the person and determine-- (i) the duration of the Order; and (ii) whether the Order is-- (A) a Community Treatment Order; or (B) an Inpatient Treatment Order; or (b) revoke the Order to which the person is currently subject if the Tribunal is not satisfied that the treatment criteria apply to the person. (2) For the purposes of making an Order under subsection (1)(a), the Tribunal must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (a) the person's views and preferences about treatment of his or her mental illness and the reasons for those views and preferences, including any recovery outcomes that the person would like to achieve; 54

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 56 (b) the views and preferences of the person expressed in his or her advance statement; (c) the views of the person's nominated person; (d) the views of a guardian of the person; (e) the views of the person's carer, if the Tribunal is satisfied that making the Order will directly affect the carer and the care relationship; (f) the views of a parent of the person, if the person is under the age of 16 years; (g) the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. (3) The Tribunal may only make a person subject to an Inpatient Treatment Order if the Tribunal is satisfied that treatment of the person cannot occur within the community. 56 Contents of a Treatment Order A Treatment Order must-- (a) state whether the Order is a Community Treatment Order or an Inpatient Treatment Order; and (b) state the duration of the Order; and (c) include any information prescribed for the purposes of this section. 57 Duration of a Treatment Order (1) Subject to subsection (2), unless a Treatment Order is revoked or expires in accordance with section 55, 61 or 62, it remains in force for the period specified in the Order. 55

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 58 (2) The maximum period that may be specified in a Treatment Order is-- (a) in relation to a person who is of or over the age of 18 years and is subject to-- (i) a Community Treatment Order, 12 months; or (ii) an Inpatient Treatment Order, 6 months; or (b) in relation to a person who is under the age of 18 years and is subject to-- (i) a Community Treatment Order, 3 months; or (ii) an Inpatient Treatment Order, 3 months. Note See section 192 in relation to the Tribunal extending the duration of a Treatment Order. Division 5--Variation of Temporary Treatment Orders and Treatment Orders 58 Variation of Temporary Treatment Orders and Treatment Orders (1) Subject to subsection (2), having regard, to the extent that is reasonable in the circumstances, to the matters set out in section 55(2), an authorised psychiatrist may vary-- (a) a Community Temporary Treatment Order to an Inpatient Temporary Treatment Order; or (b) an Inpatient Temporary Treatment Order to a Community Temporary Treatment Order; or (c) a Community Treatment Order to an Inpatient Treatment Order; or (d) an Inpatient Treatment Order to a Community Treatment Order. 56

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 59 (2) An authorised psychiatrist may only vary a Community Temporary Treatment Order to an Inpatient Temporary Treatment Order or a Community Treatment Order to an Inpatient Treatment Order if the authorised psychiatrist is satisfied that treatment of the person cannot occur in the community. (3) Despite anything to the contrary in section 57(2), a variation of a Temporary Treatment Order or Treatment Order does not affect the duration of the Order. (4) A person must be taken to the designated mental health service as soon as practicable after the Order to which the person is subject is varied if the person is not already at a designated mental health service and the Order is varied from-- (a) a Community Temporary Treatment Order to an Inpatient Temporary Treatment Order; or (b) a Community Treatment Order to an Inpatient Treatment Order. (5) Within 28 days after a person is made subject to an Inpatient Treatment Order that was varied to the Inpatient Treatment Order from a Community Treatment Order under subsection (1)(c), the Tribunal must conduct a hearing to determine whether to make a Treatment Order or revoke that Inpatient Treatment Order under section 55 if, at the end of that 28 day period, the person remains subject to the Inpatient Treatment Order. 59 Requirements in relation to varied Temporary Treatment Orders and Treatment Orders As soon as practicable after varying an Order under section 58(1), the authorised psychiatrist must notify the Tribunal that the Order has been varied and ensure that reasonable steps are taken-- 57

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 59 (a) to inform the person who is subject to the varied Order that the Order has been varied; and (b) to give the person a copy of the varied Order and a copy of the relevant statement of rights; and Note See Division 1 of Part 3 in relation to statement of rights. (c) to explain the purpose and effect of the varied Order to the person; and (d) to inform the following persons in relation to the person subject to the varied Order that the Order has been varied-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that varying the Order will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order; and (e) to give the persons referred to in paragraph (d) a copy of the varied Order and the relevant statement of rights. 58

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 60 Division 6--Revocation and Expiry of Temporary Treatment Orders and Treatment Orders 60 Application to Tribunal to revoke Temporary Treatment Order or Treatment Order (1) A person who is subject to a Temporary Treatment Order or Treatment Order may apply at any time while the Order is in force to the Tribunal to have the Order revoked. (2) The following persons may apply to the Tribunal on behalf of a person who is subject to a Temporary Treatment Order or Treatment Order at any time while the Order is in force to have the Order revoked-- (a) any person, at the request of the person subject to the Order; (b) a guardian of the person; (c) a parent of the person, if the person is under the age of 16 years. (d) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. (3) The Tribunal must-- (a) conduct a hearing and determine the application as soon as practicable; and (b) make a Treatment Order in accordance with section 55 or revoke the Order under that section. 61 Revocation of Temporary Treatment Order or Treatment Order if treatment criteria do not apply An authorised psychiatrist who determines that the treatment criteria for making a Temporary Treatment Order or Treatment Order do not apply 59

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 62 in relation to a person who is subject to such an Order must immediately revoke the Order. 62 Expiry of Temporary Treatment Order or Treatment Order if certain other Orders made A Temporary Treatment Order or Treatment Order to which a person is subject expires at the sooner of the following-- (a) in the case of a Temporary Treatment Order, 28 days after it is made; (b) in the case of a Treatment Order, at the end of the period specified in the Order; (c) the person-- (i) is made subject to a Secure Treatment Order or Court Secure Treatment Order; or (ii) is detained in a designated mental health service under section 30(2) or 30A(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. 63 Notification requirements for expired or revoked Temporary Treatment Orders and Treatment Orders If a Temporary Treatment Order or Treatment Order expires or is revoked, the authorised psychiatrist must notify the Tribunal (unless the Tribunal revoked the Order) and ensure that reasonable steps are taken as soon as practicable-- (a) to inform the person that the person is no longer subject to the Order and, in the case of a revocation, to give the person a copy of the notice of revocation; and 60

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 64 (b) to inform the following persons in relation to the person who was subject to the expired or revoked Order that the Order has expired or has been revoked-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the expiry or revocation of the Order will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. Division 7--General provisions 64 Leave of absence with approval (1) Subject to subsections (2) and (3), an authorised psychiatrist may grant a leave of absence from a designated mental health service to a person who is subject to an Inpatient Assessment Order, Inpatient Court Assessment Order, Inpatient Temporary Treatment Order or Inpatient Treatment Order-- (a) for the purpose of receiving treatment or medical treatment; or (b) for any other purpose that the authorised psychiatrist is satisfied is appropriate. (2) The authorised psychiatrist may grant a leave of absence for any period and subject to any conditions that he or she is satisfied are necessary or vary the conditions or duration of the leave of absence-- 61

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 64 (a) having regard to the purpose of the leave; and (b) if satisfied on the evidence available that the health and safety of the person or the safety of any other person will not be seriously endangered as a result. (3) In determining whether to grant a leave of absence to a person, to grant a leave of absence subject to conditions or to vary its conditions or duration under this section, the authorised psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (a) the person's views and preferences about the leave of absence and the reasons for those views and preferences, including the recovery outcomes that the person would like to achieve; (b) the views and preferences of the person expressed in his or her advance statement; (c) the views of the person's nominated person; (d) the views of a guardian of the person; (e) the views of the person's carer, if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship; (f) the views of a parent of the person if the person is under the age of 16 years; (g) the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. 62

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 64 (4) The authorised psychiatrist may revoke the leave of absence by notice in writing and require the person to return to the designated mental health service if the authorised psychiatrist is satisfied that-- (a) revocation of the leave of absence is necessary to prevent-- (i) serious deterioration in the person's mental or physical health; or (ii) serious harm to the person or to another person; or (b) the person has failed to comply with a condition to which the leave of absence is subject; or (c) the purpose for the leave of absence no longer exists. (5) As soon as practicable after the authorised psychiatrist grants a leave of absence or varies or revokes a leave of absence, the authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the person who is subject to the Order of the decision and to explain its purpose and effect; and (b) to notify the following persons in relation to the person who is subject to the Order of the decision-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship; 63

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 65 (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. 65 Another designated mental health service to provide assessment or treatment--variation by authorised psychiatrist or as directed by chief psychiatrist (1) This section applies in relation to the following Orders-- (a) an Assessment Order; (b) a Court Assessment Order; (c) a Temporary Treatment Order; (d) a Treatment Order. (2) An authorised psychiatrist may vary an Order to which this section applies to specify that assessment of, or treatment for, the person subject to the Order will be provided by another designated mental health service if-- (a) the authorised psychiatrist is satisfied that the variation is necessary for the person's assessment or treatment; and (b) the authorised psychiatrist for the designated mental health service which is to assess the person or treat the person approves of the variation. (3) The chief psychiatrist may direct an authorised psychiatrist to vary an order to which this section applies to specify that assessment of, or treatment for, the person subject to the Order will be provided by another designated mental health service if the chief psychiatrist is satisfied that the 64

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 65 variation is necessary for the person's assessment or treatment. (4) In determining whether under this section to vary, or direct the variation of, an Order to which this section applies, an authorised psychiatrist or chief psychiatrist (as the case may be) must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (a) the person's views and preferences about the proposed variation and the reasons for those views and preferences, including the recovery outcomes that the person would like to achieve; (b) the views and preferences of the person expressed in his or her advance statement; (c) the views of the person's nominated person; (d) the views of a guardian of the person; (e) the views of a carer of the person, if the authorised psychiatrist or the chief psychiatrist (as the case may be) is satisfied that the variation will directly affect the carer and the care relationship; (f) the views of a parent of the person, if the person is under the age of 16 years; (g) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. (5) As soon as practicable after the authorised psychiatrist varies an Order under subsection (2) or in accordance with a direction of the chief psychiatrist under subsection (3), the authorised psychiatrist must ensure that reasonable steps are taken-- 65

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 65 (a) to inform the person who is subject to the varied Order that the Order has been varied and to explain the purpose and effect of the variation; and (b) to arrange for the person who is subject to the varied Order to be taken to the receiving designated mental health service, if he or she is now subject to an Inpatient Assessment Order, an Inpatient Court Assessment Order, an Inpatient Temporary Treatment Order or an Inpatient Treatment Order; and (c) to forward to the designated mental health service which is to provide the assessment or treatment any documents relevant to the assessment or treatment of the person subject to the varied Order; and (d) to notify the following persons in relation to the person subject to the varied Order of the variation-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the variation will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. 66

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 66 66 Application for review of direction to vary Order (1) Within 20 business days after an Order is varied under section 65, the person who is subject to that Order may apply to the Tribunal for a review of the decision to vary the Order or to direct the variation of the Order. (2) The following persons may apply to the Tribunal for a review of the decision to vary the Order or direct a variation of the Order on behalf of a person referred to in subsection (1) within 20 business days after the Order is varied-- (a) any person, at the request of the person subject to the Order; (b) a guardian of the person; (c) a parent of the person, if the person is under the age of 16 years; (d) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. (3) On hearing an application under subsection (1) or (2), the Tribunal must, to the extent that is reasonable in the circumstances, have regard to the matters referred to in section 65(4). (4) The Tribunal must-- (a) grant the application and direct that the person subject to the varied Order be assessed or treated at the original designated mental health service and, if the person has been taken to another designated mental health service, direct that the person be returned to the original designated mental health service; or 67

Mental Health Act 2014 No. of 2014 Part 4--Compulsory Patients s. 67 (b) refuse to grant the application and direct that the person remain subject to the Order as varied. 67 Effect of detention in custody on certain Orders (1) This section applies in relation to the following Orders-- (a) an Assessment Order; (b) a Court Assessment Order; (c) a Temporary Treatment Order; (d) a Treatment Order. (2) Subject to subsection (3), an Order to which this section applies has no effect while a person who is subject to the Order is detained in custody. (3) An Order to which this section applies expires at the time it would otherwise have expired under this Act despite any period during which it has no effect by virtue of subsection (2). (4) For the purposes of this section, a person is detained in custody if the person is held in-- (a) a prison; or (b) a remand centre, youth justice centre or youth residential centre within the meaning of the Children, Youth and Families Act 2005; or (c) a police gaol within the meaning of the Corrections Act 1986; or (d) immigration detention within the meaning of section 5 of the Migration Act 1958 of the Commonwealth, unless the person is assessed or receives treatment as an inpatient. __________________ 68

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 68 PART 5--TREATMENT Division 1--Capacity and informed consent 68 Capacity to give informed consent under this Act (1) A person has the capacity to give informed consent under this Act if the person-- (a) understands the information he or she is given that is relevant to the decision; and (b) is able to remember the information that is relevant to the decision; and (c) is able to use or weigh information that is relevant to the decision; and (d) is able to communicate the decision he or she makes by speech, gestures or any other means. (2) The following principles are intended to provide guidance to any person who is required to determine whether or not a person has the capacity to give informed consent under this Act-- (a) a person's capacity to give informed consent is specific to the decision that the person is to make; (b) a person's capacity to give informed consent may change over time; (c) it should not be assumed that a person does not have the capacity to give informed consent based only on his or her age, appearance, condition or an aspect of his or her behaviour; (d) a determination that a person does not have capacity to give informed consent should not be made only because the person makes a 69

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 69 decision that could be considered to be unwise; (e) when assessing a person's capacity to give informed consent, reasonable steps should be taken to conduct the assessment at a time at, and in an environment in, which the person's capacity to give informed consent can be assessed most accurately. 69 Meaning of informed consent (1) For the purposes of treatment or medical treatment that is given in accordance with this Act, a person gives informed consent if the person-- (a) has the capacity to give informed consent to the treatment or medical treatment proposed; and (b) has been given adequate information to enable the person to make an informed decision; and (c) has been given a reasonable opportunity to make the decision; and (d) has given consent freely without undue pressure or coercion by any other person; and (e) has not withdrawn consent or indicated any intention to withdraw consent. (2) For the purposes of subsection (1)(b), a person has been given adequate information to make an informed decision if the person has been given-- (a) an explanation of the proposed treatment or medical treatment including-- (i) the purpose of the treatment or medical treatment; and (ii) the type, method and likely duration of the treatment or medical treatment; and 70

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 69 (b) an explanation of the advantages and disadvantages of the treatment or medical treatment, including information about the associated discomfort, risks and common or expected side effects of the treatment or medical treatment; and (c) an explanation of any beneficial alternative treatments that are reasonably available, including any information about the advantages and disadvantages of these alternatives; and (d) answers to any relevant questions that the person has asked; and (e) any other relevant information that is likely to influence the decision of the person; and (f) in the case of proposed treatment, a statement of rights relevant to his or her situation. (3) For the purposes of subsection (1)(c), a person has been given a reasonable opportunity to make a decision if, in the circumstances, the person has been given a reasonable-- (a) period of time in which to consider the matters involved in the decision; and (b) opportunity to discuss those matters with the registered medical practitioner or other health practitioner who is proposing the treatment or medical treatment; and (c) amount of support to make the decision; and (d) opportunity to obtain any other advice or assistance in relation to the decision. 71

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 70 70 Presumption that person has capacity to give informed consent (1) Before treatment or medical treatment is administered to a person in accordance with this Act, the informed consent of the person must be sought. (2) The person seeking the informed consent of another person to a treatment or medical treatment must presume that the other person has the capacity to give informed consent. (3) Despite subsection (2), a person does not have to seek the informed consent of another person to treatment or medical treatment if the person forms the opinion that the other person does not have the capacity to give informed consent at the time that the informed consent would otherwise be sought. 71 When a patient does not give consent to treatment (1) This section applies if-- (a) a patient-- (i) does not have the capacity to give informed consent to the treatment proposed by the authorised psychiatrist; or (ii) has the capacity to give informed consent, but does not give informed consent to treatment proposed by the authorised psychiatrist; and (b) the treatment proposed by the authorised psychiatrist is not electroconvulsive treatment or neurosurgery for mental illness. Note See Divisions 5 and 6 for relevant provisions regarding electroconvulsive treatment and neurosurgery for mental illness. 72

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 71 (2) For the purposes of determining whether this section applies to a person, it is only the patient not giving informed consent that is relevant and not the refusal to give consent of any other person or body authorised by law to make decisions for the patient. (3) The authorised psychiatrist may make a treatment decision for the patient if the authorised psychiatrist is satisfied that there is no less restrictive way for the patient to be treated other than the treatment proposed by the authorised psychiatrist. (4) In determining whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist must have regard, to the extent that is reasonable in the circumstances, to all of the following-- (a) the patient's views and preferences about treatment of his or her mental illness and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes that the patient would like to achieve; (b) the views and preferences of the patient expressed in his or her advance statement; (c) the views of the patient's nominated person; (d) the views of a guardian of the patient; (e) the views of a carer, if the authorised psychiatrist is satisfied that the treatment decision will directly affect the carer and the care relationship; (f) the views of a parent of the patient, if the patient is under the age of 16 years; 73

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 72 (g) the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order; (h) the likely consequences for the patient if the proposed treatment is not performed; (i) any second psychiatric opinion that has been given to the authorised psychiatrist. Division 2--Treatment 72 Patients to be treated for mental illness A patient is to be given treatment for his or her mental illness in accordance with this Act. 73 Circumstances in which patient's preferences in advance statement may be overridden (1) An authorised psychiatrist may make a treatment decision under section 71(3) for a patient that is not in accordance with that patient's advance statement if the authorised psychiatrist is satisfied that the preferred treatment specified by the patient in the advance statement-- (a) is not clinically appropriate; or (b) is not a treatment ordinarily provided by the designated mental health service. (2) If an authorised psychiatrist overrides a patient's preferred treatment in accordance with this section, the authorised psychiatrist must-- (a) inform the patient of the decision and include the reasons for the decision; and (b) advise the patient that he or she has a right to request written reasons for the decision. 74

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 74 (3) An authorised psychiatrist must provide written reasons for his or her decision under this section within 10 business days after receiving a request made under subsection (2)(b). Division 3--Medical treatment 74 Giving informed consent to medical treatment (1) If a patient gives informed consent to medical treatment, the medical treatment may be administered to the patient. (2) The informed consent of a patient to medical treatment must be obtained in accordance with section 70. 75 Who may consent to medical treatment if patient does not have capacity to give informed consent? (1) If a patient who is of or over the age of 18 years does not have capacity to give informed consent to medical treatment, the medical treatment may be administered to the patient with the consent of the first person of the following listed below who, in the circumstances, is reasonably available, willing and able to make a decision concerning the proposed medical treatment-- (a) a person appointed by the patient under section 5A of the Medical Treatment Act 1988; (b) a person appointed by VCAT to make decisions concerning the proposed medical treatment; (c) a person appointed under a guardianship order within the meaning of the Guardianship and Administration Act 1986 with power to make decisions concerning the proposed medical treatment; 75

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 76 (d) a person appointed by the patient (before the patient became incapable of giving informed consent) as an enduring guardian within the meaning of the Guardianship and Administration Act 1986 with power to make decisions concerning the proposed medical treatment; (e) the authorised psychiatrist, subject to section 76. (2) If a patient who is under the age of 18 years does not have capacity to give informed consent to medical treatment, the medical treatment may be administered to the patient with the consent of-- (a) a person who, in relation to the patient, has the legal authority to consent to medical treatment and who, in the circumstances, is reasonably available, willing and able to make a decision concerning the proposed treatment; or (b) the authorised psychiatrist, subject to section 76 and if a person specified under paragraph (a) is not reasonably available or not willing and able to make a decision concerning the proposed medical treatment. 76 Matters authorised psychiatrist must take into account if consenting to medical treatment of patient (1) For the purposes of section 75, an authorised psychiatrist may consent to medical treatment being administered to a patient who does not have capacity to give informed consent if the authorised psychiatrist is satisfied that the medical treatment would benefit the patient. 76

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 76 (2) In determining whether a medical treatment would benefit a patient specified in subsection (1), the authorised psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (a) the patient's views and preferences regarding medical treatment and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes the patient would like to achieve; (b) the views of the patient's nominated person; (c) the views of a guardian of the patient; (d) the views of a carer of the patient, if the authorised psychiatrist is satisfied that the medical treatment decision will directly affect the carer and the care relationship; (e) the views of a parent of the patient, if the patient is under the age of 16 years; (f) the views of the Secretary, if the patient is the subject of a custody to Secretary order or a guardianship to Secretary order; (g) if the medical treatment is likely to remedy the condition or lessen the symptoms of the condition; (h) the likely consequences for the patient if the medical treatment is not administered; (i) any second opinion of a registered medical practitioner that has been given to the authorised psychiatrist. (3) If the authorised psychiatrist is of the opinion that a patient who does not currently have capacity to give informed consent to medical treatment is likely to have capacity to give informed consent within a reasonable period of time, the authorised 77

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 77 psychiatrist must not give consent to the medical treatment unless the delay in administering or performing the medical treatment could result in serious harm to, or deterioration in, the mental or physical health of the patient. 77 Urgent medical treatment (1) A health practitioner may perform medical treatment on a patient without obtaining the informed consent of the patient or a person specified in section 75 if the health practitioner is satisfied on reasonable grounds that the medical treatment is necessary, as a matter of urgency-- (a) to save the patient's life; or (b) to prevent serious damage to the patient's health; or (c) to prevent the patient from suffering or continuing to suffer significant pain or distress. (2) A health practitioner who, in good faith, carries out, or supervises the carrying out, of medical treatment in the belief on reasonable grounds that the requirements of this section have been complied with is not-- (a) guilty of assault or battery; or (b) guilty of professional misconduct or unprofessional conduct; or (c) liable in any civil proceedings for assault or battery. (3) Nothing in this section affects any duty of care owed by a health practitioner to a patient. 78

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 78 Division 4--Second psychiatric opinions 78 Definition In this Division, entitled patient means-- (a) a person who is subject to a Temporary Treatment Order or a Treatment Order; or (b) a security patient; or (c) a forensic patient. 79 Right to a second psychiatric opinion (1) An entitled patient may seek a second psychiatric opinion at any time. (2) The following persons in relation to an entitled patient may seek a second psychiatric opinion-- (a) any person, at the request of the entitled patient; (b) a guardian of the entitled patient; (c) a parent of the entitled patient, if the entitled patient is under the age of 16 years; (d) the Secretary to the Department of Human Services, if the entitled patient is the subject of a custody to Secretary order or a guardianship to Secretary order. (3) If an entitled patient seeks a second psychiatric opinion and requests assistance to obtain that opinion, the authorised psychiatrist must ensure that reasonable steps are taken to assist the entitled patient with that request. 80 Who may give a second psychiatric opinion? A second psychiatric opinion under this Division may be sought from any psychiatrist. 79

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 81 81 Functions of a psychiatrist giving a second opinion (1) The functions of a psychiatrist giving a second psychiatric opinion are-- (a) in relation to an entitled patient (other than a forensic patient), to assess the entitled patient and to provide an opinion as to whether the criteria for the relevant Order apply to the entitled patient; and (b) in relation to an entitled patient, to review the treatment provided to the entitled patient under the relevant Order and to recommend any changes that the second opinion psychiatrist is satisfied are appropriate in the circumstances to the treatment provided under that Order. (2) A psychiatrist who is asked to give a second psychiatric opinion under this Division cannot override the treatment prescribed by the authorised psychiatrist. 82 Powers of a psychiatrist giving a second psychiatric opinion For the purposes of exercising his or her functions under this Division, a psychiatrist giving a second psychiatric opinion-- (a) may examine the entitled patient; and (b) may access any health information that is held by the designated mental health service that is treating the entitled patient and is relevant to the treatment of the entitled patient; and (c) may consult the authorised psychiatrist and any other staff of the designated mental health service about the treatment of the entitled patient; and 80

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 82 (d) in deciding whether to recommend any changes to the treatment and the nature of those changes-- (i) must have regard to the following-- (A) the entitled patient's views and preferences about treatment and any beneficial alternative treatments that are reasonably available and the reasons for these views and preferences, including any recovery outcomes that the entitled patient would like to achieve; (B) the views and preferences of the entitled patient expressed in his or her advance statement; and (ii) must, to the extent that is reasonable in the circumstances, have regard to the following-- (A) the views of the entitled patient's nominated person; (B) the views of a guardian of the entitled patient; (C) the views of a carer of the entitled patient, if the psychiatrist is satisfied that the recommended changes will directly affect the carer and the care relationship; (D) the views of a parent of the entitled patient, if the entitled patient is under the age of 16 years; 81

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 83 (E) the views of the Secretary to the Department of Human Services, if the entitled patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 83 Reasonable assistance must be provided A member of staff of a designated mental health service must provide a psychiatrist giving a second psychiatric opinion any reasonable assistance that the psychiatrist requires in order to perform or exercise a function or power under this Division. 84 Second psychiatric opinion report (1) A psychiatrist who gives a second psychiatric opinion must prepare a written report that includes-- (a) in relation to an entitled patient (other than a forensic patient), the opinion of the psychiatrist as to whether the criteria for the relevant Order apply to the entitled patient; and (b) in relation to an entitled patient, the opinion of the psychiatrist regarding the treatment provided to the entitled patient under the relevant Order and any recommended changes to the treatment that the second opinion psychiatrist is satisfied are appropriate in the circumstances. (2) The psychiatrist must ensure that reasonable steps are taken to give a copy of the report prepared under subsection (1) to the following persons-- (a) the entitled patient; (b) the person who requested the second psychiatric opinion on behalf of the entitled patient; 82

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 85 (c) the authorised psychiatrist; (d) the entitled patient's nominated person; (e) a guardian of the entitled patient; (f) a carer of the entitled patient, if the psychiatrist is satisfied that the second opinion will directly affect the carer and the care relationship; (g) a parent of the entitled patient, if the entitled patient is under the age of 16 years; (h) the Secretary to the Department of Human Services, if the entitled patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 85 Authorised psychiatrist must assess entitled patient (other than forensic patient) again in specified circumstances (1) If a report prepared under section 84 in relation to an entitled patient (other than a forensic patient) expresses the opinion that the criteria for the relevant Order do not apply to the entitled patient, the authorised psychiatrist must-- (a) examine the entitled patient as soon as practicable after receiving a copy of the report; and (b) determine whether the criteria for the relevant Order apply to the entitled patient. (2) If the authorised psychiatrist determines under subsection (1)(b) that the criteria for an Order to which the entitled patient (other than a forensic patient) is subject do apply, the authorised psychiatrist must-- (a) give the entitled patient the reasons for the determination; and 83

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 86 (b) advise the entitled patient that he or she has the right to apply to the Tribunal for revocation of the Order. 86 Authorised psychiatrist must review entitled patient's treatment in specified circumstances (1) If a report prepared under section 84 recommends changes to the entitled patient's current treatment, the authorised psychiatrist must, as soon as practicable-- (a) review the entitled patient's treatment; and (b) decide whether to adopt any of the recommendations made in the report. (2) If the authorised psychiatrist decides under subsection (1)(b) to adopt any of the recommendations made in the report prepared under section 84, the authorised psychiatrist must revise the treatment of the entitled patient. (3) If the authorised psychiatrist decides under subsection (1)(b) to adopt none or to adopt only some of the recommendations made in the report prepared under section 84, the authorised psychiatrist must-- (a) give his or her reasons to the entitled patient for adopting none or only some of the recommendations and provide an explanation of those reasons; and (b) advise the entitled patient that he or she has the right to apply to the chief psychiatrist for a review of his or her treatment. 87 Application to chief psychiatrist for review of treatment (1) An entitled patient or a person specified in section 79(2) may apply to the chief psychiatrist to review the treatment of the entitled patient if the authorised psychiatrist decides to adopt none 84

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 88 or only some of the recommended changes made in the report prepared under section 84. (2) If a review is sought under subsection (1), the chief psychiatrist must be given by the person seeking the review-- (a) a copy of the report prepared under section 84; and (b) any other information that the chief psychiatrist requests in relation to the treatment of the entitled patient. (3) A member of staff of the designated mental health service must provide a patient with any reasonable assistance in making an application under subsection (1) if the entitled patient requests such assistance. (4) The authorised psychiatrist may continue to administer treatment to a entitled patient during the conduct of a treatment review by the chief psychiatrist. 88 Review by chief psychiatrist (1) The chief psychiatrist must review the treatment of an entitled patient within 10 business days after receiving an application for review under section 87(1). (2) For the purposes of conducting a review of the treatment of an entitled patient, the chief psychiatrist may-- (a) examine the entitled patient; and (b) access any health information that is held by the designated mental health service treating the entitled patient and is relevant to the treatment of the entitled patient; and 85

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 88 (c) consult the authorised psychiatrist and any other staff of the designated mental health service about the treatment of the entitled patient. (3) In deciding whether to recommend any changes to the treatment and the nature of those changes, the chief psychiatrist must, to the extent that is reasonable in the circumstances, have regard to the following-- (a) the entitled patient's views and preferences about treatment of his or her mental illness and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes that the entitled patient would like to achieve; (b) the views and preferences of the entitled patient expressed in his or her advance statement; (c) the views of the entitled patient's nominated person; (d) the views of a guardian of the entitled patient; (e) the views of a carer of the entitled patient, if the chief psychiatrist is satisfied that the recommended changes will directly affect the carer and the care relationship; (f) the views of a parent of the entitled patient, if the entitled patient is under the age of 16 years; (g) the views of the Secretary to the Department of Human Services, if the entitled patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 86

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 89 (4) The chief psychiatrist may, if appropriate in the circumstances, direct the authorised psychiatrist to change the treatment of the entitled patient. (5) A direction made by the chief psychiatrist under subsection (4) is not limited to the recommendations made in any report prepared under section 84 in respect of the entitled patient. (6) The chief psychiatrist must, as soon as practicable, ensure that reasonable steps are taken to notify in writing the following persons of the outcome of a review conducted under this section-- (a) the entitled patient; (b) any person, other than the entitled patient, who applied for the review under section 87; (c) the authorised psychiatrist; (d) the entitled patient's nominated person; (e) a guardian of the entitled patient; (f) a carer of the entitled patient, if the chief psychiatrist is satisfied that the recommended changes will directly affect the carer and the care relationship; (g) a parent of the entitled patient, if the entitled patient is under the age of 16 years; (h) the Secretary to the Department of Human Services, if the entitled patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 89 Application for review may be withdrawn (1) An entitled patient or a person specified in section 79(2) who applied to the chief psychiatrist to review the treatment of the entitled patient may withdraw the application at any time. 87

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 90 (2) An entitled patient or a person referred to in subsection (1) may-- (a) advise the chief psychiatrist of a withdrawal made under subsection (1); or (b) request the authorised psychiatrist to advise the chief psychiatrist of the withdrawal made under subsection (1). Division 5--Electroconvulsive treatment 90 Definition of young person In this Division, young person means a person who is under the age of 18 years. 91 Meaning of a course of electroconvulsive treatment (1) For the purposes of this Act, a course of electroconvulsive treatment means a number of electroconvulsive treatments performed on a patient or young person that-- (a) does not exceed 12 electroconvulsive treatments; and (b) must be performed on the patient or young person within a period of time that does not exceed 6 months. (2) The period of time for a course of electroconvulsive treatment commences-- (a) on the date that a patient who is not a young person gives informed consent to the performance of electroconvulsive treatment; or (b) on the date that the Tribunal approves the performance of electroconvulsive treatment. (3) The period of time for a course of electroconvulsive treatment ends at the earliest of the following-- 88

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 92 (a) all the electroconvulsive treatments specified for the course of the electroconvulsive treatment have been performed; (b) the date by which the course of electroconvulsive treatment must be completed is reached; (c) the patient who is not a young person or the young person undergoing the course of electroconvulsive treatment who has capacity to give informed consent at the time of his or her withdrawal of consent, withdraws his or her consent to continue with the course of electroconvulsive treatment; (d) in the case of a young person who is not a patient, a person referred to in section 94(2)(b)(i) withdraws his or her consent to continue with the course of electroconvulsive treatment. 92 When may electroconvulsive treatment be performed? (1) Electroconvulsive treatment may be performed on a patient who is not a young person if-- (a) the patient has personally given informed consent in writing to the performance of a course of electroconvulsive treatment on himself or herself; or (b) the Tribunal has granted an application for the performance of a course of electroconvulsive treatment made under section 93. (2) Electroconvulsive treatment may be performed on a young person if the Tribunal has granted an application for the performance of a course of electroconvulsive treatment made under section 94. 89

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 93 93 Application to Tribunal to perform electroconvulsive treatment on a patient who is not a young person (1) An authorised psychiatrist may make an application to the Tribunal to perform a course of electroconvulsive treatment on a patient who is not a young person if-- (a) the patient does not have the capacity to give informed consent to the performance of a course of electroconvulsive treatment on himself or herself; and (b) the authorised psychiatrist is satisfied in the circumstances that there is no less restrictive way for the patient to be treated. (2) In determining under subsection (1)(b) whether there is no less restrictive way for a patient to be treated, the authorised psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (a) the views and preferences of the patient in relation to electroconvulsive treatment and any beneficial alternative treatments that are reasonably available and the reasons for those views or preferences, including any recovery outcomes the patient would like to achieve; (b) the views and preferences of the patient expressed in his or her advance statement; (c) the views of the patient's nominated person; (d) the views of a guardian of the patient; (e) the views of a carer of the patient, if authorised psychiatrist is satisfied that the decision to perform a course of electroconvulsive treatment will directly affect the carer and the care relationship; 90

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 94 (f) the likely consequences for the patient if the electroconvulsive treatment is not performed; (g) any second psychiatric opinion that has been obtained by the patient and given to the psychiatrist. (3) An authorised psychiatrist may make a further application under subsection (1) during or after the performance of a course of electroconvulsive treatment on a patient who is not a young person. 94 Application to perform electroconvulsive treatment on a young person (1) An authorised psychiatrist may make an application to the Tribunal to perform a course of electroconvulsive treatment on a young person who is a patient if the young person-- (a) has given informed consent in writing to the performance of a course of electroconvulsive treatment on himself or herself; or (b) does not have capacity to give informed consent but the authorised psychiatrist is satisfied in the circumstances that there is no less restrictive way for the young person to be treated. (2) A psychiatrist may make an application to the Tribunal to perform a course of electroconvulsive treatment on a young person who is not a patient if-- (a) the young person has given informed consent in writing to the performance of a course of electroconvulsive treatment on himself or herself; or 91

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 94 (b) the young person does not have capacity to give informed consent but-- (i) a person who has the legal authority to consent to treatment for the young person has given informed consent in writing to the performance of a course of electroconvulsive treatment on the young person; and (ii) the psychiatrist is satisfied in the circumstances that there is no less restrictive way for the young person to be treated. (3) In determining under subsection (1)(b) or (2)(b)(ii) whether there is no less restrictive way for a young person to be treated, the authorised psychiatrist or psychiatrist (as the case may be) must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (a) the views and preferences of the young person in relation to electroconvulsive treatment and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes the young person would like to achieve; (b) the views and preferences of the young person expressed in any advance statement that the young person may have prepared; (c) the views of the young person's nominated person; (d) the views of a carer of the young person, if authorised psychiatrist or psychiatrist is satisfied that the decision to perform a course of electroconvulsive treatment will directly affect the carer and the care relationship; 92

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 95 (e) the views of a parent of the young person, if the young person is under the age of 16 years; (f) the views of a person who has the legal authority to consent to treatment for the young person under subsection (2)(b)(i); (g) the Secretary to the Department of Human Services, if the young person is the subject of a custody to Secretary order or a guardianship to Secretary order; (h) the likely consequences for the young person if the electroconvulsive treatment is not performed; (i) any psychiatric opinion given by another psychiatrist that has been given to the psychiatrist or authorised psychiatrist making the application. 95 Listing of electroconvulsive treatment applications by Tribunal (1) The Tribunal must list and complete the hearing of an application for the performance of a course of electroconvulsive treatment made under section 93 or 94 as soon as practicable and within 5 business days after receiving the application. (2) An authorised psychiatrist or a psychiatrist who makes an application under section 93 or 94 may request an urgent hearing of the application if the authorised psychiatrist or psychiatrist is satisfied that the course of electroconvulsive treatment is necessary as a matter of urgency-- (a) to save the life of a patient or young person; or (b) to prevent serious damage to the health of a patient or young person; or 93

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 96 (c) to prevent a patient or young person from suffering or continuing to suffer significant pain or distress. (3) The Tribunal must list and complete the hearing of an application made under section 93 or 94 as soon as practicable after receiving the application if a request is made under subsection (2). 96 Powers of Tribunal in respect of electroconvulsive treatment application (1) In relation to an application made under section 93, the Tribunal must-- (a) grant the application if the Tribunal is satisfied that-- (i) the patient does not have the capacity to give informed consent; and (ii) there is no less restrictive way for the patient to be treated; or (b) refuse to grant the application if the Tribunal is not satisfied as to the matters referred to in paragraph (a). (2) In relation to an application made under section 94, the Tribunal must-- (a) grant the application if the Tribunal is satisfied that-- (i) the young person has given his or her informed consent in writing to the performance of electroconvulsive treatment on himself or herself; or (ii) the young person is a patient and does not have capacity to give informed consent and there is no less restrictive way for the young person to be treated; or 94

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 96 (iii) the young person is not a patient and does not have capacity to give informed consent and a person who has the legal authority to consent to treatment for the young person has given informed consent in writing to the performance of a course of electroconvulsive treatment on the young person and there is no less restrictive way for the young person to be treated; or (b) refuse to grant the application if the Tribunal is not satisfied as to any of the matters referred to in paragraph (a). (3) In determining under subsection (1) or (2) whether there is no less restrictive way for a patient who is not a young person or for a young person to be treated, the Tribunal must, to the extent that is reasonable in the circumstances, have regard to-- (a) in respect of a patient who is not a young person, the matters specified in section 93(2); and (b) in respect of the young person, the matters specified in section 94(3). (4) The Tribunal must notify the patient who is not a young person or the young person and the following persons of its decision to grant or refuse to grant an application made under section 93 or 94-- (a) the authorised psychiatrist or psychiatrist who made the application; (b) a parent, if the young person is under the age of 16 years; (c) if the young person did not have capacity to give informed consent, a person who gave informed consent under section 96(2)(a)(iii); 95

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 97 (d) the nominated person of the patient or young person; (e) a guardian; (f) a carer, if the Tribunal is satisfied that performing electroconvulsive treatment on the patient or young person will directly affect the carer and the care relationship; (g) the Secretary of the Department of Human Services, if the young person is the subject of a custody to Secretary order or a guardianship to Secretary order. 97 Order approving electroconvulsive treatment If the Tribunal grants an application for the performance of electroconvulsive treatment on a patient who is not a young person or on a young person, the Tribunal must make an order specifying-- (a) the number of electroconvulsive treatments to be performed for the course of electroconvulsive treatment; and (b) the date by which the course of electroconvulsive treatment must be completed, being a date that is within 6 months after the date on which the Tribunal grants the application for performance of the electroconvulsive treatment. 98 Electroconvulsive treatment must not be performed in certain circumstances (1) Electroconvulsive treatment must not be performed on a patient who is not a young person if, at any time before or during the course of electroconvulsive treatment-- 96

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 99 (a) the patient withdraws his or her consent, in the case of a patient who had consented to the electroconvulsive treatment under section 92(1)(a); or (b) the patient develops the capacity to give informed consent and subsequently does not consent to the treatment, in the case of a patient in respect of whom an application under section 96(1)(a) was granted. (2) Electroconvulsive treatment must not be performed on a young person if, at any time before or during the course of electroconvulsive treatment-- (a) the young person withdraws his or her consent; or (b) the young person develops the capacity to give informed consent and does not consent to the treatment; or (c) in the case of a young person who is not a patient, the person who gave informed consent under section 96(2)(a)(iii) withdraws consent. 99 Use of electroconvulsive treatment to be reported to chief psychiatrist An authorised psychiatrist treating a person or young person (irrespective of whether the person or young person is a patient) who has received or is receiving a course of electroconvulsive treatment at a designated mental health service must provide a written report to the chief psychiatrist containing the matters requested by the chief psychiatrist within the time requested by the chief psychiatrist. 97

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 100 Division 6--Neurosurgery for mental illness 100 Psychiatrist may apply to Tribunal for approval to perform neurosurgery for mental illness (1) Neurosurgery for mental illness must not be performed on a person unless the Tribunal has approved an application made under this section. (2) A psychiatrist may apply to the Tribunal for approval to arrange for the performance of neurosurgery for mental illness on a person if the person has personally given informed consent in writing to the performance of neurosurgery on himself or herself. 101 Listing of application to perform neurosurgery for mental illness The Tribunal must hear and determine an application made under section 100 within 30 business days after receipt of the application. 102 Powers of Tribunal in respect of application for neurosurgery for mental illness (1) After hearing an application made under section 100, the Tribunal may-- (a) grant the application; or (b) refuse to grant the application. (2) The Tribunal must not grant an application under subsection (1) unless it is satisfied that-- (a) the person in respect of whom the application was made has given informed consent in writing to the performance of neurosurgery for mental illness on himself or herself; and (b) the performance of neurosurgery for mental illness will benefit the person. 98

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 103 (3) In determining whether the performance of neurosurgery for mental illness will benefit the person, the Tribunal must have regard to the following-- (a) whether the neurosurgery for mental illness is likely to remedy the mental illness or alleviate the symptoms and reduce the ill effects of the mental illness; (b) the likely consequences for the person if neurosurgery for mental illness is not performed; (c) any beneficial alternative treatments that are reasonably available and the person's views and preferences about those treatments; (d) the nature and degree of any discomfort, risks and common or expected side effects associated with the proposed neurosurgery for mental illness, including the person's views and preferences about any such discomfort, risks or common or expected side effects. 103 Notice of decision The Tribunal must give written notice of its decision under section 102 to grant or refuse an application made under section 100 to the following persons-- (a) the psychiatrist who made the application; (b) the person who is the subject of the application; (c) the chief psychiatrist. 99

Mental Health Act 2014 No. of 2014 Part 5--Treatment s. 104 104 Report to chief psychiatrist (1) If the Tribunal grants an application to perform neurosurgery for mental illness and the neurosurgery for mental illness is performed, the psychiatrist who made the application, or the psychiatrist treating the person following the neurosurgery for mental illness, must provide the chief psychiatrist with a written report on the results of the neurosurgery for mental illness-- (a) within 3 months after the surgery is performed; and (b) within 9 to 12 months after the surgery is performed. (2) After receiving a report under subsection (1), the chief psychiatrist may require the psychiatrist who gave the report to provide further information relating to the neurosurgery for mental illness and the results of that surgery. __________________ 100

Mental Health Act 2014 No. of 2014 Part 6--Restrictive Interventions s. 105 PART 6--RESTRICTIVE INTERVENTIONS Division 1--General 105 When may a restrictive intervention be used? A restrictive intervention may only be used on a person receiving mental health services in a designated mental health service after all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable. 106 Facilities and supplies to be provided to person A person who under this Part authorises the use of a restrictive intervention on a person receiving mental health services in a designated mental health service must ensure that the person's needs are met and the person's dignity is protected by the provision of appropriate facilities and supplies. 107 Notification of use of restrictive intervention An authorised psychiatrist must take reasonable steps to ensure that, as soon as practicable after commencement of the use of a restrictive intervention on a person, the following persons in relation to the person are notified of its use, the nature of the restrictive intervention and the reason for using it-- (a) the nominated person; (b) a guardian; (c) a carer, if the authorised psychiatrist is satisfied that the use of the restrictive intervention will affect the carer and the care relationship; (d) a parent, if the person is under the age of 16 years; 101

Mental Health Act 2014 No. of 2014 Part 6--Restrictive Interventions s. 108 (e) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. 108 Use of restrictive intervention to be reported to chief psychiatrist (1) An authorised psychiatrist must give a written report to the chief psychiatrist on the use of any restrictive intervention on a person in a designated mental health service. (2) A report under subsection (1) must contain the details required by the chief psychiatrist and be given to the chief psychiatrist within the time stipulated by the chief psychiatrist. 109 Release from restrictive intervention A person who-- (a) may authorise the use of a restrictive intervention on another person receiving mental health services in a designated mental health service; and (b) is satisfied that the continued use of the restrictive intervention on the other person is no longer necessary-- must immediately take steps to release the other person from the restrictive intervention. Division 2--Seclusion 110 When may seclusion be used? A person receiving mental health services in a designated mental health service may be kept in seclusion if seclusion is necessary to prevent imminent and serious harm to the person or to another person. 102

Mental Health Act 2014 No. of 2014 Part 6--Restrictive Interventions s. 111 111 Use of seclusion to be authorised (1) The use of seclusion of a person in a designated mental health service must be authorised by-- (a) an authorised psychiatrist; or (b) if an authorised psychiatrist is not immediately available, a registered medical practitioner or the senior registered nurse on duty. (2) If a registered medical practitioner or the senior registered nurse authorises the use of seclusion of a person under subsection (1)(b), the registered medical practitioner or the senior registered nurse must notify an authorised psychiatrist about the use of seclusion as soon as practicable. (3) Subject to subsection (4), as soon as practicable after the authorised psychiatrist is notified under subsection (2) about the use of seclusion of a person, the authorised psychiatrist must examine the person and determine if the continued use of seclusion of the person is necessary. (4) If the authorised psychiatrist is not reasonably available to examine a person under subsection (3), the authorised psychiatrist must ensure that a registered medical practitioner examines the person and determines whether the continued use of seclusion of the person is necessary as soon as practicable after the authorised psychiatrist is notified under subsection (2). (5) The authorised psychiatrist or registered medical practitioner, as the case may be, may authorise the continued use of seclusion if he or she is satisfied that the continued use of seclusion of the person is necessary. 103

Mental Health Act 2014 No. of 2014 Part 6--Restrictive Interventions s. 112 112 Monitoring of person in seclusion (1) A person receiving mental health services in a designated mental health service who is kept in seclusion must be monitored in accordance with this section. (2) A registered nurse or registered medical practitioner must clinically observe a person in seclusion as often as is appropriate, having regard to the person's condition, but not less frequently than every 15 minutes. (3) Subject to subsection (4), an authorised psychiatrist must examine a person kept in seclusion as frequently as the authorised psychiatrist is satisfied is appropriate in the circumstances to do so, but not less frequently than every 4 hours. (4) If it is not practicable for an authorised psychiatrist to conduct an examination at the frequency that the authorised psychiatrist is satisfied is appropriate, the person must be examined by a registered medical practitioner when so directed by the authorised psychiatrist. Division 3--Bodily restraint 113 When may a bodily restraint be used? A bodily restraint may be used on a person receiving mental health services in a designated mental health service if the bodily restraint is necessary-- (a) to prevent imminent and serious harm to the person or to another person; or (b) to administer treatment or medical treatment to the person. 104

Mental Health Act 2014 No. of 2014 Part 6--Restrictive Interventions s. 114 114 Use of bodily restraint to be authorised (1) The use of a bodily restraint on a person receiving mental health services in a designated mental health service must be authorised by-- (a) an authorised psychiatrist; or (b) if an authorised psychiatrist is not immediately available, a registered medical practitioner or the senior registered nurse on duty. (2) If a registered medical practitioner or the senior registered nurse authorises the use of a bodily restraint on a person under subsection (1)(b), the registered medical practitioner or the senior registered nurse must notify an authorised psychiatrist about the use of the bodily restraint as soon as practicable. (3) Subject to subsection (4), as soon as practicable after the authorised psychiatrist is notified under subsection (2) about the use of a bodily restraint on a person, the authorised psychiatrist must examine the person and determine if the continued use of the bodily restraint on the person is necessary. (4) If the authorised psychiatrist is not reasonably available to examine a person under subsection (3), the authorised psychiatrist must ensure that a registered medical practitioner examines the person and determines whether continued use of the bodily restraint on the person is necessary as soon as practicable after the authorised psychiatrist is notified under subsection (2). 105

Mental Health Act 2014 No. of 2014 Part 6--Restrictive Interventions s. 115 (5) The authorised psychiatrist or registered medical practitioner, as the case may be, may authorise the continued use of the bodily restraint if he or she is satisfied that the continued use of the bodily restraint on the person is necessary. 115 Urgent use of bodily restraint without authorisation (1) A registered nurse may approve the use of a bodily restraint (in the form of a physical restraint only) on a person receiving mental health services in a designated mental health service if-- (a) it is necessary as a matter of urgency to prevent imminent and serious harm to the person or another person; and (b) an authorised psychiatrist, a registered medical practitioner or the senior registered nurse on duty is not immediately available to authorise the use of bodily restraint on the person. (2) A registered nurse who has approved the use of a bodily restraint on a person under subsection (1) must seek the authorisation of an authorised psychiatrist, a registered medical practitioner or the senior registered nurse under section 114 as soon as practicable. (3) A registered nurse who has approved the use of a bodily restraint on a person under subsection (1) must immediately stop the use of that bodily restraint on the person if the registered nurse is satisfied that the continued use of the bodily restraint is no longer necessary. 116 Monitoring of person on whom a bodily restraint is used (1) If a bodily restraint is used on a person who is receiving mental health services in a designated mental health service, the person must be monitored in accordance with this section. 106

Mental Health Act 2014 No. of 2014 Part 6--Restrictive Interventions s. 116 (2) A person on whom a bodily restraint is used must be under continuous observation by a registered nurse or registered medical practitioner. (3) A registered nurse or registered medical practitioner must clinically review the use of a bodily restraint on a person as often as is appropriate, having regard to the person's condition, but not less frequently than every 15 minutes. (4) Subject to subsection (5), an authorised psychiatrist must examine a person on whom a bodily restraint is used as frequently as the authorised psychiatrist is satisfied is appropriate in the circumstances to do so, but not less frequently than every 4 hours. (5) If it is not practicable for an authorised psychiatrist to conduct an examination at the frequency that the authorised psychiatrist is satisfied is appropriate, the person must be examined by a registered medical practitioner when so directed by the authorised psychiatrist. __________________ 107

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 117 PART 7--ADMINISTRATION Division 1--The Secretary 117 Role of Secretary For the purposes of this Act, the role of the Secretary is-- (a) to plan, develop, fund, provide and enable the provision of a comprehensive range of mental health services that are consistent with, and promote the objectives of, this Act and the mental health principles; and (b) to perform the functions and exercise the powers conferred on the Secretary by this Act or any regulations under this Act; and (c) to administer this Act, subject to the general direction and control of the Minister. 118 Functions of the Secretary Without limiting the generality of section 117, the Secretary has the following functions under this Act-- (a) to develop and implement mental health strategies, policies, guidelines and Codes of Practice; (b) to plan, develop and promote a range of mental health services that are comprehensive, integrated, accessible, safe, inclusive, equitable and free from stigma; (c) to promote continuous improvement in the quality and safety of mental health services; (d) to collect, compile and analyse data about the provision of mental health services for the purpose of research into mental illness and improving the mental health system; 108

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 119 (e) to monitor and evaluate the performance, standards and outcomes of mental health service providers; (f) to promote awareness and understanding among health professionals and within the wider community in relation to mental illness and mental health; (g) to undertake, fund and facilitate research into mental illness, mental health and related fields; (h) to develop, support and promote the capacity of the mental health service provider workforce to provide mental health services in accordance with the objectives of this Act and the mental health principles; (i) to promote coordination between mental health service providers and providers of other health, disability and community support services; (j) to advise the Minister about mental health services and the operation of this Act and the regulations. Division 2--The chief psychiatrist 119 The chief psychiatrist (1) The Secretary may, under Part 3 of the Public Administration Act 2004, employ a psychiatrist to be the chief psychiatrist if the Secretary is satisfied that the psychiatrist has the appropriate knowledge and experience to perform the functions and exercise the powers conferred on the chief psychiatrist by or under this Act. (2) Subject to the general direction and control of the Secretary, the chief psychiatrist has the duties, functions and powers that are conferred on the chief psychiatrist by or under this Act or any other 109

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 120 Act or by or under any regulations made under this Act or any other Act. 120 The role of the chief psychiatrist For the purposes of this Act, the role of the chief psychiatrist is-- (a) to provide clinical leadership and expert clinical advice to mental health service providers in Victoria; and (b) to promote continuous improvement in the quality and safety of mental health services provided by mental health service providers; and (c) to promote the rights of persons receiving mental health services from mental health service providers; and (d) to provide advice to the Minister and the Secretary about the provision of mental health services by mental health service providers. 121 Functions of the chief psychiatrist (1) The chief psychiatrist has the following functions-- (a) to develop standards, guidelines and practice directions for the provision of mental health services and publish or otherwise make available those standards, guidelines and practice directions; (b) to assist mental health service providers to comply with the standards, guidelines and practice directions developed by the chief psychiatrist; 110

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 121 (c) to develop and provide information, training and education to promote improved quality and safety in the provision of mental health services; (d) to monitor the provision of mental health services in order to improve the quality and safety of mental health services; (e) to assist mental health service providers to comply with this Act, regulations made under this Act and any Codes of Practice; (f) to conduct clinical practice audits and clinical reviews of mental health service providers; (g) to analyse data, undertake research and publish information about the provision of mental health services and treatment; (h) to publish an annual report; (i) to conduct investigations in relation to the provision of mental health services by mental health service providers; (j) to give directions to mental health service providers in respect of the provision of mental health services; (k) to promote cooperation and coordination between mental health service providers and providers of other health, disability and community support services. (2) The chief psychiatrist has all the powers necessary or convenient to perform his or her functions under this Act or the regulations made under this Act. 111

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 122 122 Investigations by chief psychiatrist (1) The chief psychiatrist, on his or her own initiative or at the request of the Secretary, may conduct an investigation into the provision of mental health services by a mental health service provider if the chief psychiatrist or the Secretary (as the case may be) is of the opinion that the health, safety or wellbeing of a person is or was endangered as a result of those services. (2) In conducting an investigation, the chief psychiatrist may-- (a) assess the quality and safety of mental health services provided by the mental health service provider; and (b) determine whether the mental health services are being provided in accordance with-- (i) the standards, guidelines and practice directions issued by the chief psychiatrist; and (ii) this Act and the regulations and any Codes of Practice made under this Act. (3) An investigation conducted under this section may be in relation to-- (a) any aspect of the mental health services provided by the mental health service provider, including any practice, procedure, restrictive intervention or treatment; or (b) the mental health services that are provided to a specified person. (4) The chief psychiatrist must give written notice of the investigation to the mental health service provider within a reasonable time before commencing the investigation. 112

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 123 (5) Despite subsection (4), the chief psychiatrist may, if he or she is satisfied that it is necessary in the circumstances, dispense with giving notice of the investigation to the mental health service provider. (6) Subject to this section, the process for conducting an investigation into a mental health service provider is at the discretion of the chief psychiatrist. 123 Powers of entry (1) The chief psychiatrist, or an authorised officer at the direction of the chief psychiatrist, may enter the premises of a mental health service provider at any time for the purpose of-- (a) conducting investigations, clinical reviews or clinical practice audits; or (b) performing any other function of the chief psychiatrist under this Act or the regulations. (2) If the chief psychiatrist, or an authorised officer at the direction of the chief psychiatrist, enters the premises of a mental health service provider under the powers conferred by this Act, he or she may do any one or more of the following-- (a) inspect, examine or make enquiries at the premises; (b) examine or inspect any thing (including a document or part of a document) at the premises; (c) bring any equipment or materials to the premises that may be required; (d) take any photographs or make any audio or visual recordings at the premises, including of a person at the premises, provided the person has consented to having his or her photograph taken or the recording of him or her made; 113

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 124 (e) use any equipment at the premises; (f) make copies of, or take extracts from, any document kept at the premises; (g) speak to any person receiving mental health services at the premises, if the person agrees; (h) do any other thing that is reasonably necessary for the purpose of performing or exercising the functions or powers of the chief psychiatrist under this Act or the regulations. 124 Power to give written direction to persons to produce documents or answer questions (1) The chief psychiatrist, or an authorised officer at the direction of the chief psychiatrist, may give a member of staff of a mental health service provider a written direction at any time for the purpose of-- (a) conducting investigations, clinical reviews or clinical practice audits; or (b) performing any other function of the chief psychiatrist under this Act or the regulations. (2) A written direction referred to in subsection (1) may direct a member of staff of the mental health service provider-- (a) to produce a document or part of a document that is in the possession or control of the member of staff; or (b) to answer any questions asked by the chief psychiatrist or authorised officer. 114

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 125 125 Member of staff of mental health service provider to give any reasonable assistance A member of staff of a mental health service provider must provide the chief psychiatrist, or an authorised officer acting under the direction of the chief psychiatrist, with any reasonable assistance that the chief psychiatrist or authorised officer requires to perform any duties or functions or exercise any powers under this Act or the regulations. 126 Report and recommendations following investigation by chief psychiatrist (1) The chief psychiatrist must prepare a report as soon as practicable after completing an investigation under section 122 that-- (a) specifies the findings of the chief psychiatrist based on the investigation; and (b) may include recommendations for, or directions under section 129(1) to, the mental health service provider that was investigated for the purpose of-- (i) improving the quality or safety of the mental health services provided to a specified person or to persons generally; or (ii) assisting the mental health service provider to comply with-- (A) the standards, guidelines and practice directions issued by the chief psychiatrist; and (B) this Act and the regulations and Codes of Practice made under this Act. 115

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 127 (2) The chief psychiatrist must, as soon as practicable after preparing the report, give a copy of it to the mental health service provider that is the subject of the report. (3) After receiving under subsection (2) a report that contains directions under section 129(1) or recommendations, the mental health service provider must-- (a) prepare a written response to those directions or recommendations that specifies the actions that the mental health service provider has taken, is taking or will take to implement them; and (b) give the chief psychiatrist the written response within 30 business days after receiving the report under subsection (2). 127 Report and response to be given to the Secretary The chief psychiatrist must give the Secretary a copy of-- (a) any report prepared by the chief psychiatrist under section 126(1); and (b) any response prepared by the mental health service provider under section 126(3). 128 Publication and response (1) If the Secretary is of the opinion that it is in the public interest to do so, and subject to subsection (2), the Secretary may publish-- (a) a copy of a report prepared under section 126(1); and (b) any response prepared under section 126(3). (2) The Secretary must not publish a report or any response under subsection (1) if the report or response contains any information that identifies a 116

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 129 person, unless the person consents in writing to the publication. 129 Chief psychiatrist may give written directions to mental health service providers (1) The chief psychiatrist may, after the completion of an investigation under section 122, give a written direction requiring a mental health service provider-- (a) to improve the quality or safety of the mental health services provided to a specified person or to persons generally; or (b) to ensure that the provision of mental health services by the mental health service provider complies with-- (i) the standards, guidelines and practice directions issued by the chief psychiatrist; and (ii) this Act and the regulations and Codes of Practice made under this Act. (2) If the chief psychiatrist makes a direction under this section in respect of a specified person, the chief psychiatrist must ensure that reasonable steps are taken to notify the following-- (a) the specified person; (b) the specified person's nominated person; (c) a guardian of the specified person; (d) a carer of the specified person, if the chief psychiatrist is satisfied that the direction will directly affect the carer and the care relationship; (e) a parent of the specified person, if the specified person is under the age of 16 years; 117

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 130 (f) the Secretary, if the specified person is the subject of a custody to Secretary order or a guardianship to Secretary order. 130 Chief psychiatrist may conduct clinical reviews (1) The chief psychiatrist may conduct a clinical review in respect of one or more specified mental health service providers to identify processes and practices that need to be changed to improve the quality and safety of the mental health services being provided. (2) A clinical review may be conducted in respect of any aspect of the mental health services provided by the specified mental health service provider. (3) The process for conducting a clinical review is at the discretion of the chief psychiatrist. 131 Chief psychiatrist to give notice of intention to conduct clinical review (1) The chief psychiatrist must give a written notice to the mental health service provider in respect of which a clinical review will be conducted. (2) A notice under subsection (1) must-- (a) be given at least 20 business days before the clinical review is to commence; and (b) specify the scope and objectives of the clinical review; and (c) specify the names of the persons who will carry out the clinical review; and (d) specify the date of commencement for the clinical review and the expected length of the clinical review. 118

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 132 132 Clinical review reports and recommendations (1) After completing a clinical review in respect of a mental health service provider, the chief psychiatrist must prepare a written report of his or her findings. (2) A report prepared under this section may include recommendations that the chief psychiatrist considers appropriate to improve the quality and safety of mental health services. (3) The chief psychiatrist must provide a copy of a report prepared under this section to the mental health service provider that is the subject of the report as soon as practicable after the clinical review is completed. (4) If a report prepared under this section contains recommendations, the mental health service provider that is the subject of the report must provide a written response not later than 30 business days after receipt of the report in accordance with subsection (5). (5) A written response to the chief psychiatrist by the mental health service provider must specify the action that has been, is, or will be, taken in relation to the recommendations. (6) The chief psychiatrist may continue to monitor a mental health service provider after receiving a written response to the report prepared under this section. (7) For the purposes of subsection (6), the chief psychiatrist may-- (a) request further information from the mental health service provider; and (b) conduct another clinical review of the mental health service provider. 119

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 133 133 Standards, guidelines or practice directions to address systemic issues identified in clinical review The chief psychiatrist may prepare and issue standards, guidelines or practice directions to address any systemic issues identified during a clinical review and to improve the quality and safety of mental health services provided by mental health service providers. 134 Chief psychiatrist may conduct clinical practice audit (1) The chief psychiatrist may conduct a clinical practice audit of a specified practice or matter related to the mental health services provided by one or more mental health service providers to identify systemic issues or trends that need to be addressed to improve the quality and safety of the mental health services being provided. (2) The chief psychiatrist may conduct a clinical practice audit under this section-- (a) on his or her own initiative; or (b) at the request of the Secretary. 135 Chief psychiatrist must make record Before commencing a clinical practice audit, the chief psychiatrist must make a record of the scope, objectives and duration of the clinical practice audit. 136 Reports (1) The chief psychiatrist may prepare an interim report in the course of a clinical practice audit if the chief psychiatrist is satisfied that it is appropriate to do so. 120

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 137 (2) The chief psychiatrist must prepare a report as soon as practicable after completing a clinical practice audit specifying the findings of the chief psychiatrist based on the clinical practice audit. 137 Reports to be given to the Secretary (1) Subject to subsection (2), the chief psychiatrist must give the Secretary a copy of any report prepared under section 136 to the Secretary. (2) The copy of a report given to the Secretary must not contain any information that may identify a mental health service provider or any other person. 138 Publication of report If the Secretary is of the opinion that it is in the public interest to do so, the Secretary may publish a copy of a report received under section 137. 139 Standards, guidelines or practice directions to address systemic issues identified in clinical practice audit The chief psychiatrist may prepare and issue standards, guidelines or practice directions to address any systemic issues identified during a clinical practice audit and to improve the quality and safety of mental health services provided by mental health service providers. 140 Confidentiality obligations applying in respect of information from clinical practice audit or clinical review (1) This section applies to the following persons-- (a) a person who is, or has been, the chief psychiatrist; (b) a person who is, or has been, employed or engaged under section 142 or 143. 121

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 140 (2) Subject to subsection (3), a person to whom this section applies must not-- (a) directly or indirectly make a record of, or divulge or communicate to any person, any information gained by or conveyed to the person by reason of the conducting of a clinical practice audit or clinical review that may identify a mental health service provider or any other person; or (b) make use of the information for any purpose-- other than in the performance of the functions under this Act relating to a clinical practice audit or clinical review. Penalty: 10 penalty units. (3) Nothing in this section prevents the chief psychiatrist from using or disclosing information gained or conveyed by reason of conducting a clinical practice audit or clinical review if the chief psychiatrist is satisfied that the use or disclosure is necessary to prevent serious or imminent harm to a person's health or safety. (4) Subsection (2) has effect despite anything to the contrary in section 12 of the Audit Act 1994. (5) A person to whom this section applies must not be required-- (a) to produce before any court or tribunal or any board, agency or other person any document that has come into the person's possession or under the person's control in the performance of the functions under this Act relating to a clinical practice audit or clinical review; or 122

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 141 (b) to divulge or communicate to any court or tribunal or any board, agency or other person any matter or thing that has come under the person's notice in the performance of the functions under this Act relating to a clinical practice audit or clinical review. (6) The Freedom of Information Act 1982 does not apply to a document or any information referred to in subsection (5). (7) Part 5 and HPP 6 of the Health Records Act 2001 do not apply to a document or any information referred to in subsection (5). (8) Nothing in this section prevents a person to whom this section applies from including information in any document that does not contain any particulars which would be likely to lead to the identification of a person from whom or in relation to whom the information was obtained. 141 Confidentiality of documents (1) A person must not, and cannot, be required to produce before any court or tribunal or any board, agency or other person any document in the person's possession or under the person's control that is the original or a copy of a document that was-- (a) created for the sole purpose of providing information in the course of conducting a clinical practice audit or clinical review; and (b) provided in the course of conducting a clinical practice audit or clinical review by or on behalf of that person. (2) Except in the case of information or reports published by the Secretary, the following is not admissible in any action or proceedings before any court or tribunal or any board, agency or other person-- 123

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 142 (a) evidence of any other information or reports obtained by or in the possession of the chief psychiatrist in the course of conducting a clinical practice audit or clinical review; (b) evidence of or about a document to which subsection (1) applies. (3) The Freedom of Information Act 1982 does not apply to a document or any information referred to in subsection (1) or (2). (4) Part 5 and HPP 6 of the Health Records Act 2001 do not apply to a document or any information referred to in subsection (1) or (2). 142 Provision of staff There may be employed under Part 3 of the Public Administration Act 2004 any employees with the appropriate expertise and experience that are necessary to assist the chief psychiatrist in the performance of his or her powers, duties and functions under this Act. 143 Contractors The Secretary may enter into agreements or arrangements with a person or body for the purpose of obtaining appropriate expertise to assist the chief psychiatrist in the performance of his or her powers, duties or functions under this Act. 144 Power of chief psychiatrist to delegate The chief psychiatrist may by instrument delegate any power, duty or function of the chief psychiatrist, other than this power of delegation, to a person who is a psychiatrist and who-- (a) is referred to in section 142; or 124

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 145 (b) has entered into an agreement or arrangement under section 143 with the Secretary. 145 Reports submitted by the chief psychiatrist (1) As soon as practicable after the end of each financial year but no later than the following 31 October, the chief psychiatrist must submit to the Secretary an annual report containing-- (a) information on the operations and activities undertaken by the chief psychiatrist during the financial year; and (b) an analysis of the data and information reported to the chief psychiatrist during the financial year; and (c) a summary of any amendments made during the financial year to the standards, guidelines or practice directions issued by the chief psychiatrist that may impact on the performance of electroconvulsive treatment on young persons; and "(d) the number of young persons (irrespective of whether the young persons were patients) who received one or more courses of electroconvulsive treatment at a designated mental health service during the financial year. (2) As soon as practicable after receiving an annual report, the Secretary must publish the annual report on the Department of Health's Internet website. (3) The chief psychiatrist must submit a written report to the Minister before 1 November 2019 in relation to the period starting on 1 July 2014 and ending on 30 June 2019 that-- 125

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 146 (a) states the number of young persons (irrespective of whether the young persons were patients) who received one or more courses of electroconvulsive treatment at a designated mental health service; and (b) provides details of the clinical outcomes for those young persons resulting from receiving one or more courses of electroconvulsive treatment. (4) The report referred to in subsection (3) must not include any information that may identify a person. (5) Sections 140 and 141 apply to any information or document gained by, provided to, or created by, the chief psychiatrist in the course of preparing the report referred to in subsection (3) as if that preparation were a clinical practice audit. (6) Within 14 sitting days after receiving the report referred to in subsection (3), the Minister must cause a copy of that report be tabled in each House of the Parliament. (7) In this section-- young person means a person under the age of 18 years. Division 3--Authorised officers 146 Chief psychiatrist may appoint authorised officers (1) The chief psychiatrist may by instrument appoint the following to be an authorised officer for the purposes of this Part-- (a) a person employed under Part 3 of the Public Administration Act 2004; (b) a person with whom the Secretary has entered into an agreement under section 143. 126

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 147 (2) The chief psychiatrist must not appoint a person to be an authorised officer under this section unless the chief psychiatrist is satisfied that the person has the appropriate knowledge and experience to perform the duties and functions of an authorised officer. (3) The chief psychiatrist may give a direction to an authorised officer in relation to the performance of the authorised officer's functions or duties or the exercise of the authorised officer's powers under this Act or the regulations. 147 Identity cards (1) The chief psychiatrist must issue an identity card to each authorised officer appointed by the chief psychiatrist. (2) An identity card issued to an authorised officer under this section must-- (a) contain a photograph of the authorised officer; and (b) contain the signature of the authorised officer; and (c) be signed by the chief psychiatrist. 148 Production of identity card (1) Subject to subsection (3), an authorised officer must produce his or her identity card for inspection before exercising a power under this Act or the regulations. (2) Subject to subsection (3), an authorised officer must produce his or her identity card for inspection when asked to do so by the occupier of any premises during the exercise of a power under this Act or the regulations. 127

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 149 (3) However, if it is impracticable for an authorised officer to produce his or her identity card for inspection when exercising a power under this Act or the regulations, the authorised officer is not required to do so. Division 4--Designated mental health services 149 Emergency declaration of designated mental health services The Secretary, by notice published in the Government Gazette, may declare any public hospital or public health service (within the meaning of the Health Services Act 1988) to be a designated mental health service-- (a) for a period not exceeding 28 days if the Secretary is satisfied that an emergency exists; and (b) for a further period or periods if the Secretary is satisfied that the emergency continues to exist. 150 Appointment of authorised psychiatrist (1) The governing body of a designated mental health service must appoint a psychiatrist as an authorised psychiatrist for the designated mental health service. (2) The governing body of a designated mental health service may appoint as many authorised psychiatrists as the designated mental health service requires. (3) An authorised psychiatrist appointed under this section has the functions, powers and duties conferred on an authorised psychiatrist by or under this Act or any other Act. 128

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 151 (4) The governing body of a designated mental health service must notify the chief psychiatrist and the Tribunal of an appointment made under this section within 5 business days after the appointment is made. 151 Authorised psychiatrist may delegate powers and functions (1) An authorised psychiatrist may, by written instrument, delegate to any of the following persons any power, duty or function of the authorised psychiatrist, other than this power of delegation-- (a) a psychiatrist; (b) a person to whom limited registration has been granted under section 66 of the Health Practitioner Regulation National Law to enable the person to undertake a period of postgraduate training or supervised practice in psychiatry or to undertake assessment or sit an examination approved by the Medical Board in relation to psychiatry; (c) a person to whom limited registration has been granted to enable the person to practice in psychiatry in an area of need under section 68 of the Health Practitioner Regulation National Law. (2) An authorised psychiatrist may, by written instrument, delegate to a registered medical practitioner the following powers, duties and functions of an authorised psychiatrist relating to Assessment Orders-- (a) the power to examine a person and extend the duration of an Assessment Order; 129

Mental Health Act 2014 No. of 2014 Part 7--Administration s. 151 (b) the power to assess a person subject to an Assessment Order and to make a Temporary Treatment Order in accordance with Division 3 of Part 4; (c) the power to revoke an Assessment Order in accordance with section 37(1). (3) A delegation under subsection (2) may only be made for a period of not more than 12 months, but may be renewed. (4) The exercise or performance of a power, duty or function delegated under subsection (2) must be reviewed by the authorised psychiatrist who made the delegation on a regular basis. __________________ 130

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 152 PART 8--MENTAL HEALTH TRIBUNAL Division 1--Establishment of the Mental Health Tribunal 152 Establishment of the Mental Health Tribunal (1) The Mental Health Tribunal is established. (2) The Tribunal has an official seal that must-- (a) be kept in such custody as the Tribunal directs; and (b) only be used as authorised by the Tribunal. 153 Functions of the Tribunal The functions of the Tribunal are-- (a) to hear and determine the following-- (i) a matter in relation to whether a Treatment Order should be made; (ii) an application to revoke a Temporary Treatment Order or Treatment Order; (iii) a matter in relation to an application involving the transfer of the treatment of a compulsory patient to another designated mental health service; (iv) an application to perform electroconvulsive treatment on a patient who does not have capacity to give informed consent; (v) an application to perform electroconvulsive treatment on a person who is under the age of 18 years; (vi) an application to perform neurosurgery for mental illness; (vii) an application by a person subject to a Court Secure Treatment Order to determine whether the criteria specified 131

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 154 in section 94B(1)(c) of the Sentencing Act 1991 apply; (viii) an application by a security patient subject to a Secure Treatment Order to have the Order revoked; (ix) an application by a security patient in relation to a grant of leave of absence; (x) an application by a security patient for a review of a direction to be taken to another designated mental health service; (xi) an application for an interstate transfer order or an interstate transfer of treatment order for a compulsory patient; and (b) to perform any other function which is conferred on the Tribunal under this Act, the regulations or the rules. 154 General powers of the Tribunal The Tribunal has all the powers necessary or convenient to enable it to perform its functions under this Act. 155 Protection of members, persons and witnesses (1) A member of the Tribunal has in the performance of his or her duties as a member the same protection and immunity as a Judge of the Supreme Court. (2) An Australian legal practitioner or other person appearing before the Tribunal on behalf of another person has the same protection and immunity as an Australian legal practitioner has in appearing for a party on proceedings in the Supreme Court. 132

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 156 (3) Subject to this Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the Supreme Court. Division 2--Membership of the Tribunal 156 Membership The members of the Tribunal appointed in accordance with this Act are-- (a) the President; and (b) the Deputy President; and (c) the senior members; and (d) the ordinary members. Note Senior members and ordinary members consist of legal, psychiatrist, registered medical practitioner and community members. See section 159(1). 157 President (1) The Governor in Council may, on the recommendation of the Minister, appoint a person to be President of the Tribunal if the person is eligible for appointment as a legal member of the Tribunal. (2) The President holds office on a full-time basis for the term, not exceeding 5 years, specified in the instrument of appointment. (3) The President is eligible for reappointment. (4) If, immediately before his or her appointment, the President was an officer within the meaning of the State Superannuation Act 1988, then while he or she is President he or she continues, subject to that 133

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 158 Act, to be an officer within the meaning of that Act. (5) The President may engage in the practice of any profession or in any paid employment (whether within or outside Victoria) outside the duties of his or her office if-- (a) the Minister gives his or her consent; and (b) the President complies with all the conditions attached to that consent. 158 Deputy President (1) The Governor in Council may, on the recommendation of the Minister, appoint a person to be Deputy President of the Tribunal if the person is eligible for appointment as a legal member of the Tribunal. (2) The Deputy President holds office-- (a) for the term, not exceeding 5 years, specified in the instrument of appointment; and (b) on a full-time or part-time basis. (3) The Deputy President is eligible for reappointment. (4) If, immediately before his or her appointment, the Deputy President was an officer within the meaning of the State Superannuation Act 1988, then, while he or she is Deputy President, he or she continues, subject to that Act, to be an officer within the meaning of that Act. (5) The Deputy President may engage in the practice of any profession or in any paid employment (whether within or outside Victoria) outside the duties of his or her office if-- 134

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 159 (a) the Minister gives his or her consent; and (b) the Deputy President complies with all the conditions attached to that consent. 159 Senior members and ordinary members (1) The senior members and ordinary members of the Tribunal are-- (a) the legal members; and (b) the psychiatrist members; and (c) the registered medical practitioner members; and (d) the community members. (2) Senior members and ordinary members are appointed by the Governor in Council on the recommendation of the Minister. (3) A senior member holds office-- (a) on a full-time or a part-time basis; and (b) for the term, not exceeding 5 years, specified in the instrument of appointment. (4) An ordinary member holds office-- (a) on a full-time, part-time or sessional basis; and (b) for the term, not exceeding 5 years, specified in the instrument of appointment. (5) As many senior members and ordinary members as are required for the proper functioning of the Tribunal are to be appointed. (6) Senior members and ordinary members are eligible for reappointment. (7) A full-time or part-time member (other than the President or Deputy President) may engage in the practice of any profession or in any paid 135

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 160 employment (whether within or outside Victoria) outside the duties of his or her office if-- (a) the President gives his or her consent; and (b) the full-time or part-time member complies with all the conditions attached to that consent. 160 Legal members A person is eligible for appointment as a legal member if the person is and has been, for not less than 5 years, an Australian lawyer. 161 Psychiatrist members A person is eligible for appointment as a psychiatrist member if the person is a psychiatrist. 162 Registered medical practitioner members A person is eligible for appointment as a registered medical practitioner member if the person-- (a) is a registered medical practitioner; and (b) has knowledge of, and experience in relation to, the treatment of mental illness. 163 Community members A person is eligible for appointment as a community member if the person has-- (a) a special interest or experience in mental illness; or (b) the knowledge and experience relevant to performing the role of a community member of the Tribunal. 136

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 164 164 Appointments to act as President or Deputy President (1) The Deputy President of the Tribunal may act as President if the President is unable to perform his or her duties or functions. (2) The President may appoint a senior member of the Tribunal to act as Deputy President if the Deputy President is unable to perform his or her duties or functions. (3) For the purposes of this section, the person who acts as President or Deputy President-- (a) has all the powers and must perform all the duties of the President or Deputy President, as the case may be; and (b) is entitled to be paid the remuneration and allowances for the time being payable to the President or Deputy President, as the case may be. 165 Remuneration and allowances (1) A member (including the President and Deputy President) is entitled to receive the prescribed remuneration and prescribed allowances. (2) The prescribed remuneration and prescribed allowances may differ for different classes of member. 166 Public Administration Act 2004 does not apply to members The Public Administration Act 2004 does not apply to a member (including the President and Deputy President) in respect of the office of member. 137

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 167 167 Resignation A member (including the President and Deputy President) may resign his or her office as a member in writing signed by that person and delivered to the Governor in Council. 168 Suspension (1) The Minister, on the recommendation of the President, may suspend a member, including the Deputy President, from office if the Minister is satisfied that there may be grounds for removal of the member from office under section 170(2). (2) The Governor in Council, on the recommendation of the Minister, may suspend the President from office if the Minister is satisfied that there may be grounds for removal of the President from office under section 170(2). (3) If the President is suspended from office under subsection (2), the Minister must cause to be tabled in each House of the Parliament within 7 sitting days of that House after the suspension a statement of the grounds of the suspension. (4) A person who is suspended from office under this section remains entitled to the prescribed remuneration and prescribed allowances during the period of suspension. 169 Investigation (1) The Minister may appoint a person who is independent of the Tribunal to undertake an investigation into the conduct of a member (including the President or Deputy President) who has been suspended under section 168 if the Minister decides that an investigation is required in the circumstances. 138

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 170 (2) If the Minister decides that an investigation is required under subsection (1), the investigation must be conducted as soon as practicable after the member's suspension. (3) A person appointed under subsection (1) to conduct an investigation must-- (a) investigate the conduct of the suspended member; and (b) report to the Minister on the findings of the investigation and provide recommendations as appropriate; and (c) give a copy of the report to the President; and (d) give a copy of the report to the person who is the subject of the report. (4) The report of a person appointed under subclause (1) may include a recommendation that the person investigated be removed from office. 170 Vacation and removal from office (1) The office of a member (including the President and Deputy President) becomes vacant if-- (a) the member dies; or (b) the member completes a term of office and is not reappointed; or (c) the member is removed from office or resigns. (2) The Governor in Council, on the recommendation of the Minister, may remove a member (including the President and Deputy President) from office if-- (a) the member becomes an insolvent under administration; or 139

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 171 (b) the member ceases to be eligible for appointment; or (c) the member is convicted of an offence, the commission of which makes the person unsuitable to be a member in the opinion of the Minister; or (d) the member fails to disclose a conflict of interest; or (e) in the case of the President or Deputy President, he or she engages in any paid employment outside the duties of office without the consent of the Minister or not in accordance with the Minister's consent; or (f) in the case of a full-time or part-time member other than the President or Deputy President, the member engages in any paid employment outside the duties of the office without the consent of the President or not in accordance with the President's consent; or (g) the member is unable to perform his or her duties under this Act; or (h) following an investigation under section 169, the member has been found to have neglected his or her duties under this Act or to have engaged in misconduct. Division 3--Administration 171 Employment of staff There are to be employed under the Public Administration Act 2004 to assist in the administration of the Tribunal-- (a) an executive officer; and (b) a principal registrar; and 140

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 172 (c) as many registrars and other staff as are necessary. 172 Functions of principal registrar (1) The principal registrar has the functions conferred on him or her by or under this Act or the rules. (2) In performing his or her functions under this Act or the rules, the principal registrar is subject to the direction of the President. 173 Functions of registrars (1) A registrar may, subject to this Act and the rules, exercise any of the powers and perform any of the functions of the principal registrar. (2) In performing his or her functions under this Act or the rules, a registrar is subject to the direction of the principal registrar. 174 Delegation (1) The President may, by instrument, delegate to any legal member any of his or her functions under this Act or the rules, other than this power of delegation. (2) The President may, by instrument, delegate to the principal registrar any of his or her functions under this Act or the rules other than-- (a) this power of delegation; or (b) the functions and powers of the President in relation to hearing and determining matters or applications referred to in section 153. (3) The Deputy President may, by instrument, delegate to any legal member any of his or her functions under this Act or the rules, other than this power of delegation. 141

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 175 (4) The Deputy President may, by instrument, delegate to the principal registrar any of his or her functions under this Act or the rules other than-- (a) this power of delegation; or (b) the functions and powers of the Deputy President in relation to hearing and determining matters or applications referred to in section 153. 175 Secrecy A person who is, or has been, a member (including as President or Deputy President) of the Tribunal or an executive officer, principal registrar, registrar or other member of staff of the Tribunal must not, directly or indirectly, make a record of, disclose or communicate to any person, any information relating to the affairs of a natural person acquired in the performance of functions or duties or the exercise of powers under this Act which may identify the person, unless-- (a) it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act; or (b) it is necessary to do so for the purposes of criminal proceedings or to initiate any proceedings under this Act; or (c) the person to whom the information relates gives written consent to the making of the record, disclosure or communication. Penalty: 60 penalty units. 176 Register of proceedings (1) The Tribunal must cause to be kept a register of proceedings containing details as required by the rules. 142

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 176 (2) Subject to this section, the Tribunal must ensure that the register is available for inspection at any time that the registry is open for business. (3) A party to a proceeding of the Tribunal may, without charge, inspect that part of the register that relates to the proceeding in which the party is or was involved and obtain an extract of that part of the register. (4) A person who is not a party to a proceeding of the Tribunal may, for a prescribed fee, inspect a part of the register or obtain an extract of the register if-- (a) the President determines that the person has a proper purpose for inspecting or obtaining that part of the register; and (b) subject to subsection (5), any aspect of the extract to be inspected or provided that may identify the person who is the subject of the extract is removed. (5) For the purposes of subsection (4)(b), an extract that identifies the person who is the subject of the extract may be inspected or provided if the President is satisfied that-- (a) the person has given written consent to the inspection or provision of the extract; or (b) the proper purpose for inspecting the register involves-- (i) ethics approved research; or (ii) the management and review of the business of the Tribunal. 143

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 177 177 Annual report of the Tribunal As soon as practicable after the end of the financial year but not later than the following 31 October, the Tribunal must submit to the Minister an annual report containing-- (a) a review of the operation of the Tribunal during the 12 months ending on the preceding 30 June; and (b) any other prescribed matters. (2) The Minister must cause the annual report of the Tribunal to be laid before the Legislative Council and the Legislative Assembly before the expiration of the fourteenth sitting day of the Legislative Council or the Legislative Assembly, as the case may be, after the annual report has been received by the Minister. Division 4--Tribunal divisions 178 Divisions of the Tribunal (1) The following divisions of the Tribunal are established-- (a) the general division; (b) the special division. (2) The general division of the Tribunal must hear and determine all matters within the jurisdiction of the Tribunal except those relating to the performance of electroconvulsive treatment or neurosurgery for mental illness. (3) The special division of the Tribunal must hear and determine applications for the performance of electroconvulsive treatment or neurosurgery for mental illness. 144

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 179 179 Constitution of the Tribunal (1) The President must, having regard to subsections (2) and (3), select 3 members of the Tribunal who, for the purposes of a proceeding, will constitute the Tribunal. (2) For the purposes of a proceeding in the general division of the Tribunal, the Tribunal is constituted by-- (a) a legal member; and (b) a psychiatrist member or a registered medical practitioner member; and (c) a community member. (3) For the purposes of a proceeding in the special division of the Tribunal, the Tribunal is constituted by-- (a) a legal member; and (b) a psychiatrist member; and (c) a community member. (4) For the purposes of this section, the President and Deputy President are taken to be legal members. 180 Presiding member The presiding member in a proceeding of the Tribunal is the legal member. Division 5--Procedure of the Tribunal 181 General procedure (1) The Tribunal-- (a) is not bound by the rules of evidence; and (b) is bound by the rules of procedural fairness; and (c) may inform itself on any matter as it sees fit; and 145

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 182 (d) must conduct each proceeding as expeditiously and with as little formality and technicality as the requirements of this Act, the regulations and rules and a proper consideration of the matters before it permit. (2) Subject to this Act and the regulations and rules, the Tribunal may regulate its own procedure. 182 Who are the parties to a proceeding? The parties to a proceeding of the Tribunal are-- (a) the person who is the subject of the proceeding; and (b) the psychiatrist treating the person who is the subject of the proceeding; and (c) any person whose application to be a party to the proceeding has been approved by the Tribunal; and (d) any other person or body joined as a party to the proceeding under section 183. 183 Joinder of parties (1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal is satisfied that it is desirable that the person be joined as a party. (2) The Principal Registrar may, on the application of a person to be a party to a proceeding, join the person as a party before the commencement of the hearing. (3) The President, Deputy President or another member of a class specified in the rules may join a person as a party to the proceedings on the papers. 146

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 184 184 Appearance and representation at hearing (1) A person who is the subject of a proceeding has the right to appear before the Tribunal at the hearing. (2) Despite subsection (1), the Tribunal may exclude any person (including a person who is the subject of a proceeding) if that person is behaving in a manner that is disruptive to the hearing of the matter. (3) A person who is the subject of a proceeding may be represented before the Tribunal by any person authorised to that effect by the person who is the subject of the proceeding. (4) If the person who is the subject of a proceeding is not represented before the Tribunal, the Tribunal may appoint another person to represent that person. 185 Interpreters (1) Subject to subsection (3), a party may be assisted at a hearing by an interpreter or another person who is necessary or desirable to make the hearing intelligible to that party. (2) The Tribunal may appoint or call for the assistance of an interpreter to provide interpreting services for the purposes of any hearing conducted under this Act. (3) The Tribunal may, if it is satisfied that it is appropriate in the circumstances, direct that a hearing under this Act continue without the assistance of an interpreter. 147

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 186 186 Form and content of applications to the Tribunal An application to the Tribunal made under this Act must-- (a) be in the form specified in the rules; and (b) contain or attach any information specified in the rules; and (c) be lodged in the manner specified by the rules. 187 Principal registrar may reject certain applications (1) The principal registrar may reject an application made to the Tribunal if the application-- (a) is made by a person who is not entitled to make that application under this Act; or (b) is lodged after the time for making that application has expired; or (c) does not comply with requirements under this Act, the regulations or the rules. (2) The principal registrar must advise any person whose application is rejected under subsection (1) that the person may seek a review by the President of the principal registrar's decision under that subsection. (3) The President must review on the papers a decision of the principal registrar to reject an application under subsection (1) if the person who made the application seeks a review of that decision. (4) After conducting a review of a decision by the principal registrar under subsection (3), the President may-- (a) confirm the principal registrar's decision to reject the application; or 148

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 188 (b) direct the principal registrar to accept the application. (5) The principal registrar may refer an application specified in subsection (1) directly to the President for a determination by the President under subsection (4). (6) The President may decide to reject an application referred to it by the principal registrar under subsection (5) if the application-- (a) is made by a person who is not entitled to make that application under this Act; or (b) is lodged after the time for making that application has expired; or (c) does not comply with requirements under this Act, the regulations or the rules. 188 Withdrawal of proceedings (1) Before an application has been determined by the Tribunal, the applicant may seek leave from the Tribunal to withdraw the application. (2) The Tribunal may grant leave to an applicant to withdraw an application under subsection (1). (3) The Tribunal may make an order summarily striking out a proceeding if the applicant fails to appear. (4) The Tribunal's power to grant leave under subsection (2) or to strike out a proceeding under subsection (3) is exercisable by-- (a) the Tribunal as constituted for the proceeding; or (b) the principal registrar. (5) The principal registrar must notify in writing all parties to a proceeding of a decision by the Tribunal-- 149

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 189 (a) to grant leave to an applicant to withdraw an application; or (b) to strike out a proceeding. 189 Notice of hearing (1) The Tribunal must list a matter for hearing and give written notice of that hearing as soon as practicable to all of the following-- (a) the person who is the subject of the proceeding; (b) the psychiatrist treating the person who is the subject of the proceeding; (c) any person whose application to be a party to the proceeding has been approved by the Tribunal; (d) if the person who is the subject of the proceedings is a person under the age of 16 years, the person's parent; (e) the nominated person of the person who is the subject of the proceeding; (f) a guardian of the person who is the subject of the proceeding; (g) a carer of the person who is the subject of the proceeding, if the Tribunal is satisfied that the hearing will directly affect the carer and the care relationship; (h) if the person who is the subject of the proceedings is a security patient, whoever of the following had custody of the person before he or she became a security patient-- (i) the Secretary to the Department of Justice; 150

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 190 (ii) the Secretary to the Department of Human Services; (iii) the Chief Commissioner of Police; (i) if the person is the subject of a custody to Secretary order or a guardianship to Secretary order, the Secretary to the Department of Human Services; (j) any other person or body joined as a party to the proceeding under section 183. (2) A written notice under subsection (1) must specify all of the following-- (a) the date and time of the hearing; (b) the place where the hearing will be held; (c) the subject matter of the hearing; (d) that a person who is a party to the proceeding has a right to appear at the hearing; (e) that a person who is a party to the proceeding has a right to be represented at the hearing. (3) The Tribunal may dispense with giving notice under subsection (1) if the Tribunal is satisfied that it is appropriate to do so in the circumstances. (4) A hearing, proceeding or determination of the Tribunal or an order of the Tribunal is not invalid or affected by reason only of a failure to give notice to a person. 190 Multiple matters in respect of one person may be held concurrently The Tribunal may hear and determine multiple matters in respect of one person concurrently. 151

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 191 191 Access to documents (1) Subject to subsection (3), a designated mental health service must give a person who is the subject of a proceeding access to any documents in its possession in connection with the proceeding at least 48 hours before the hearing. (2) An authorised psychiatrist may apply to the Tribunal for access to any documents referred to in subsection (1) to be denied to the person who is the subject of a proceeding if the authorised psychiatrist is of the opinion that the disclosure of information in such a document may cause serious harm to the person or to another person. (3) If the Tribunal determines that the disclosure of the information referred to in subsection (2) may cause serious harm to the person who is the subject of the proceeding or to another person, the Tribunal may-- (a) deny the disclosure of the relevant document to the person who is the subject of the proceeding; and (b) proceed with the hearing; and (c) have regard to that information at the hearing. (4) If the Tribunal determines that the disclosure of the information referred to in subsection (2) will not cause serious harm to the person who is the subject of the proceeding or to another person, the Tribunal may-- (a) order the designated mental health service to give the person who is the subject of the proceeding access to the relevant document; and 152

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 192 (b) adjourn the hearing for a period not exceeding 5 business days and extend the duration of the relevant Order for the length of that period. 192 Adjournment of certain hearings only in exceptional circumstances (1) If the person who is the subject of a proceeding is subject to a Temporary Treatment Order or a Treatment Order, the Tribunal must not adjourn the hearing to a date that is after the Order expires unless the Tribunal is satisfied that exceptional circumstances exist. (2) If a hearing is adjourned under subsection (1), the Tribunal may extend the duration of the Temporary Treatment Order or Treatment Order to which the person is subject for a period not exceeding 10 business days. (3) The Tribunal must not extend the duration of a Temporary Treatment Order or Treatment Order more than once. 193 Hearings to be closed to the public (1) Subject to this section, hearings of the Tribunal are closed to members of the public. (2) The Tribunal may order that a hearing or any part of a hearing be open to members of the public if the Tribunal is satisfied that it is in the public interest. (3) A person who is the subject of a proceeding under this Act may make a written request to the Tribunal for the hearing, or any part of the hearing, to be heard in public. (4) In determining a request made under subsection (3), the Tribunal must consider whether holding the hearing, or part of the hearing, in public would-- 153

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 194 (a) be a serious threat to the health and safety of any person; or (b) prejudice the interests of justice. 194 Details of person not to be published without consent of President The name and other identifying details of a person who is the subject of a proceeding before the Tribunal must not be published unless the written consent of the President has been obtained. 195 Determination of proceedings (1) Questions (other than questions of law) arising for determination by the Tribunal are to be decided by a majority of the members constituting the Tribunal in that proceeding. (2) The member of the Tribunal who is nominated by the Tribunal in that proceeding must give oral reasons for making a determination at the conclusion of the hearing for that proceeding that include-- (a) an explanation of the determination; and (b) an explanation of any order made by the Tribunal under this Act. (3) An order made under this Part during a proceeding of the Tribunal must-- (a) be in writing; and (b) state that each party to the proceeding may-- (i) request a statement of reasons for the determination under section 198; and (ii) apply to VCAT for review of the determination under section 201; and (c) be signed by the presiding member of the Tribunal for the purposes of that proceeding; and 154

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 196 (d) be sealed with the official seal of the Tribunal. (4) The Tribunal must, as soon as practicable after it makes an order under this Part, take reasonable steps to give a copy of the order to the persons to whom notice was given under section 189(1). 196 Questions of law A question of law (including a question of mixed fact and law) arising in a proceeding before the Tribunal must be decided by the presiding member. 197 Referral of question of law to Court (1) The Tribunal, with the consent of the President, may refer any question of law arising in a proceeding to the Trial Division of the Supreme Court. (2) A referral may be made under subsection (1) on the application of a party to a proceeding before the Tribunal or on the Tribunal's own initiative. (3) If a question of law has been referred to the Trial Division of the Supreme Court, the Tribunal must not-- (a) make a determination to which the question of law is relevant while the referral is pending; or (b) proceed in a manner or make a determination that is inconsistent with the opinion of the Trial Division of the Supreme Court on the question. (4) Despite anything to the contrary in this Act, if a question of law has been referred to the Trial Division of the Supreme Court, the Tribunal may-- (a) adjourn the hearing; and 155

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 198 (b) extend the duration of any Temporary Treatment Order or Treatment Order to which the person who is the subject of the proceeding to which the question of law relates is subject until the referred question is resolved and the Tribunal has made its determination. 198 Requesting a statement of reasons (1) A party to a proceeding before the Tribunal may, after the Tribunal has made a determination, request a statement of reasons for that determination. (2) A request under subsection (1) must be-- (a) in writing; and (b) received by the Tribunal within 20 business days after the Tribunal has made the relevant determination, subject to subsection (3). (3) The Tribunal may, in its discretion, accept a request under subsection (1) that is received more than 20 business days after the determination is made in respect of which the statement of reasons is requested. (4) The Tribunal must, within 20 business days after receiving a request under subsection (1), give a statement of reasons to all parties to the proceeding in respect of which the request was made. (5) The Tribunal's statement of reasons must be-- (a) signed by the presiding member for the relevant proceeding or, if the presiding member is unavailable, the President or Deputy President; and (b) sealed with the official seal of the Tribunal. 156

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 199 199 Correction of Order or statement of reasons (1) The Tribunal may correct an order or statement of reasons made by it if the order or statement of reasons contains-- (a) a clerical mistake; or (b) an error arising from an accidental slip or omission; or (c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order or statement of reasons; or (d) a defect of form. (2) The correction may be made on-- (a) the Tribunal's own initiative; or (b) the application of any person in accordance with the rules. 200 Validity of proceedings (1) A decision of the Tribunal is not invalid only because of a defect or irregularity in, or in connection with, the appointment of the President, Deputy President or another member. (2) If a person's appointment as a member of the Tribunal expires during the hearing of a matter, the person is, for the purposes of this Act, taken to be a member of the Tribunal until the matter before the Tribunal is finally concluded. (3) A proceeding of the Tribunal is not invalidated or affected if the proceeding was not heard within the timeframes specified under this Act for a proceeding of that kind as a result of an accidental or unintentional miscalculation of time. 157

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 201 201 Review by VCAT (1) A person who was a party to a proceeding before the Tribunal may apply to VCAT for review of any determination made by the Tribunal under this Act in that proceeding. (2) Subject to subsection (3), an application for review under subsection (1) must be made to VCAT within 20 business days after the later of the following-- (a) the Tribunal's determination; or (b) if the person referred to in subsection (1) requested a statement of reasons, the person's receipt of the statement of reasons. (3) VCAT may accept an application for review under subsection (1) that is made after the time specified in subsection (2) if VCAT determines that special circumstances exist. 202 Use of experts (1) The Tribunal may engage a person to provide expert advice in relation to any matter arising in a proceeding. (2) The Tribunal is responsible for any costs associated with the engagement of a person referred to in subsection (1). 203 Witness summons (1) The principal registrar may issue a summons to a person to attend the Tribunal to give evidence and produce any document that is referred to in the summons. (2) A summons under subsection (1) may be issued-- (a) on the Tribunal's own motion; or (b) at the request of a party to a proceeding before the Tribunal. 158

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 204 204 Failure to comply with summons A person who has been served with a summons to attend the Tribunal must not, without reasonable excuse-- (a) fail to attend as required by the summons unless the person has been excused or released from attendance by the Tribunal; or (b) fail to produce any document referred to in the summons that is in the person's possession. Penalty: 60 penalty units. 205 False or misleading information A person must not knowingly give false or misleading information to the Tribunal. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. 206 Contempt of the Tribunal A person must not-- (a) insult a member of the Tribunal in relation to the member exercising his or her powers or functions as a member; or (b) repeatedly interrupt a hearing of the Tribunal; or (c) create a disturbance or take part in creating or continuing a disturbance in or near a place where the Tribunal is sitting; or (d) do any other act or thing that would, if the Tribunal were the Supreme Court, constitute contempt of that Court. Penalty: 120 penalty units. 159

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 207 Division 6--Rules Committee 207 Establishment of Rules Committee The Rules Committee of the Tribunal is established. 208 Functions of the Rules Committee The functions of the Rules Committee are-- (a) to develop rules of practice and procedure and practice notes for the Tribunal; and (b) to inform members of the Tribunal about those rules of practice and procedure and practice notes; and (c) to perform any other functions conferred on it by the President. 209 Power to make rules and issue practice notes (1) The Rules Committee may make rules regulating the practice and procedure of the Tribunal. (2) The Rules Committee may issue practice notes relating to the practice and procedure of the Tribunal. 210 Membership of the Rules Committee (1) The members of the Rules Committee are-- (a) the President; and (b) the Deputy President; and (c) such other members of the Tribunal as are selected by the President. (2) The President may select members from any of the member classes referred to in section 159(1). 160

Mental Health Act 2014 No. of 2014 Part 8--Mental Health Tribunal s. 211 211 Meeting procedure (1) At a meeting of the Rules Committee-- (a) the President presides if he or she is present; and (b) if the President is not present, the Deputy President presides. (2) The quorum of the Rules Committee is half of the number of members who make up the Committee. (3) In all other respects the Rules Committee may regulate its own proceedings. 212 Validity of decisions A decision of the Rules Committee is not invalid only because of a vacancy in the office of a member. __________________ 161

Mental Health Act 2014 No. of 2014 Part 9--Community Visitors s. 213 PART 9--COMMUNITY VISITORS 213 Definition In this Part-- prescribed premises means the premises of-- (a) a designated mental health service; or (b) a mental health service provider in which residential services and 24 hour nursing care is provided for persons who have mental illness; or (c) a prescribed mental health service provider or prescribed class of mental health service providers in which residential care is provided for persons who have mental illness. 214 Appointment of community visitors (1) The Governor in Council may, on the recommendation of the Public Advocate, appoint as many community visitors as are necessary for the purpose of fulfilling their functions under this Act. (2) In recommending persons for appointment as community visitors, the Public Advocate must-- (a) recommend, as far as practicable, an equal number of males and females; and (b) have regard to the desirability of having people of diverse backgrounds as community visitors. (3) A community visitor-- (a) holds office for a period of 3 years; and (b) is eligible for reappointment at the end of his or her term of office; and 162

Mental Health Act 2014 No. of 2014 Part 9--Community Visitors s. 215 (c) is entitled to be paid any fees and travelling and other allowances as are fixed by the Governor in Council from time to time; and (d) is not, in respect of the office of community visitor, subject to the provisions of the Public Administration Act 2004. (4) A person must not during his or her appointment as a community visitor-- (a) be employed by, or hold any appointment with, the Department of Health or a mental health service provider, the premises of which is a prescribed premises; or (b) have any direct interest in any contract with the Department of Health or a mental health service provider, the premises of which is a prescribed premises. 215 General provisions as to community visitors (1) The Governor in Council may specify terms and conditions of appointment in the instrument of appointment of a person as a community visitor. (2) The Governor in Council may, on the recommendation of the Public Advocate, remove a community visitor from office. (3) A person may resign from the office of community visitor in writing signed by that person and delivered to the Governor in Council. (4) The office of a community visitor becomes vacant if the community visitor-- (a) becomes an insolvent under administration; or (b) is convicted of an indictable offence or an offence which, if committed in Victoria, would be an indictable offence; or 163

Mental Health Act 2014 No. of 2014 Part 9--Community Visitors s. 216 (c) becomes incapable of performing the duties of the office of community visitor; or (d) is removed from office or resigns from office. 216 Functions of a community visitor The functions of a community visitor are-- (a) to visit any prescribed premises and inquire into the following-- (i) the adequacy of services and facilities provided at those premises to persons receiving mental health services, including, but not limited to, the appropriateness and standard of facilities provided at those premises in relation to the accommodation, physical wellbeing and welfare of those persons and the adequacy of opportunities and facilities for their recreation, occupation, education, training and recovery; (ii) whether the mental health services provided at those premises are provided in accordance with the objectives of this Act and the mental health principles; (iii) any failure to comply with the provisions of this Act or the regulations; (iv) any other matter that the community visitor is satisfied is appropriate, having regard to the objectives of this Act and the mental health principles; and 164

Mental Health Act 2014 No. of 2014 Part 9--Community Visitors s. 217 (b) to assist persons receiving mental health services at those prescribed premises-- (i) in the resolution of any issues identified in the course of making an inquiry; and (ii) to seek support from other relevant bodies or services; and (iii) to make complaints to the Commissioner; and (c) to perform any other functions conferred on the community visitor by this Act. 217 Powers of community visitors (1) When visiting a prescribed premises, a community visitor may-- (a) subject to subsection (2), enter and inspect any part of the premises; and (b) speak to any person receiving mental health services who wishes to speak to the community visitor; and (c) inspect any document, other than a clinical record, relating to a person receiving mental health services at the prescribed premises or any other record which is required to be kept under this Act or the regulations; and (d) with the consent of a person receiving mental health services, any clinical record relating to the person receiving mental health services. (2) Subsection (1)(a) does not authorise a community visitor to inspect the bedroom of a person receiving mental health services unless the person has given consent. 165

Mental Health Act 2014 No. of 2014 Part 9--Community Visitors s. 218 218 When may community visitors visit prescribed premises? A community visitor may visit a prescribed premises with or without any notice at the times and for the periods that the community visitor determines or as directed by the Public Advocate or the Community Visitors Mental Health Board. 219 Request to see a community visitor (1) A person receiving mental health services at a prescribed premises, or any person on behalf of that person, may request the person in charge of the prescribed premises to arrange for the person to be visited by a community visitor. (2) Within 2 business days after receiving a request under subsection (1), the person in charge of the prescribed premises must advise a community visitor that a request has been made. 220 Reasonable assistance to be given to community visitors A member of the staff of a prescribed premises must, give a community visitor any reasonable assistance that the community visitor requires to perform or exercise any of the community visitor's powers or functions effectively. 221 Community Visitors Mental Health Board (1) The Community (Psychiatric Services) Visitors Board established by section 116 of the Mental Health Act 1986 (as is force immediately before 1 July 2014) is continued under this Act as the Community Visitors Mental Health Board. 166

Mental Health Act 2014 No. of 2014 Part 9--Community Visitors s. 222 (2) The Community Visitors Mental Health Board consists of-- (a) the Public Advocate; and (b) 2 community visitors elected by community visitors in accordance with the regulations. (3) The functions of the Community Visitors Mental Health Board are-- (a) to represent community visitors; and (b) to supervise the training of community visitors; and (c) to prepare and circulate publications that explain the role of community visitors; and (d) to report a matter to the Public Advocate or the Minister; and (e) to refer a matter under section 222; and (f) to prepare an annual report. 222 Matter may be referred Without limiting the discretion of the Community Visitors Mental Health Board, the Community Visitors Mental Health Board may refer a matter reported by a community visitor to whichever of the following that the Community Visitors Mental Health Board is satisfied is the appropriate person to deal with that matter-- (a) the Secretary; (b) the Public Advocate; (c) the chief psychiatrist; (d) the Commissioner. 167

Mental Health Act 2014 No. of 2014 Part 9--Community Visitors s. 223 223 Reports by community visitors (1) A community visitor must submit a report at least twice a year to the Community Visitors Mental Health Board on visits made since the last community visitor's report. (2) A community visitor may at any time submit a report to the Community Visitors Mental Health Board containing any recommendations that the community visitor is satisfied should be considered by the Community Visitors Mental Health Board. (3) The Minister may require the Community Visitors Mental Health Board to report to the Minister on any matter specified by the Minister at the time and in the manner directed by the Minister. (4) The Community Visitors Mental Health Board may at any time submit a report to the Minister. 224 Annual report of Community Visitors Mental Health Board (1) As soon as practicable after the end of each financial year but not later than the following 30 September, the Community Visitors Mental Health Board must submit to the Minister an annual report on the activities of community visitors during the 12 months ending on the preceding 30 June. (2) The Minister must cause the annual report of the Community Visitors Mental Health Board to be laid before the Legislative Council and the Legislative Assembly before the expiration of the fourteenth sitting day of the Legislative Council or the Legislative Assembly, as the case may be, after the annual report has been received by the Minister. 168

Mental Health Act 2014 No. of 2014 Part 9--Community Visitors s. 225 225 Secrecy provision (1) A person who is, or has been, a community visitor must not, directly or indirectly, make a record of, disclose or communicate to any person, any information acquired in the performance of functions or duties or the exercise of powers under this Act, unless-- (a) it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act; or (b) the person to whom the information relates gives written consent to the making of the record, disclosure or communication. Penalty: 60 penalty units. (2) Subsection (1) does not prevent a person from producing a document to a court in the course of criminal proceedings or in the course of any proceedings under this Act or divulging or communicating to a court, in the course of any such proceedings, any matter or thing coming under the notice of the person in the performance of official duties or in the performance of a function or in the exercise of a power referred to in subsection (1). __________________ 169

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 226 PART 10--COMPLAINTS Division 1--The Mental Health Complaints Commissioner 226 Mental Health Complaints Commissioner (1) There is to be a Mental Health Complaints Commissioner. (2) The Governor in Council, on the recommendation of the Minister, may appoint a person as Commissioner. (3) The Commissioner is to hold office for a term, not exceeding 5 years, specified in the instrument of his or her appointment, but is eligible for reappointment. (4) The Governor in Council may specify other terms and conditions of appointment in the Commissioner's instrument of appointment. (5) The Commissioner is entitled to receive remuneration and allowances as are fixed by the Governor in Council from time to time. (6) If, immediately before his or her appointment, the Commissioner was an officer within the meaning of the State Superannuation Act 1988, then while he or she is Commissioner, he or she continues, subject to that Act, to be an officer within the meaning of that Act. 227 Vacation of office (1) The Governor in Council may, on the recommendation of the Minister, remove the Commissioner from office if the Minister is satisfied as to any of the following grounds-- (a) the Commissioner becomes an insolvent under administration; (b) the Commissioner is charged with an indictable offence; 170

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 228 (c) the Commissioner fails to disclose a conflict of interest; (d) the Commissioner engages in any paid employment outside the duties of office without the consent of the Minister; (e) the Commissioner is unable to perform his or her duties under this Act; (f) the Commissioner has been found to have neglected his or her duties under this Act; (g) the Commissioner has been found to have engaged in misconduct. (2) The Commissioner may resign his or her office as Commissioner in writing signed by that person and delivered to the Governor in Council. 228 Functions of the Commissioner The Commissioner has the following functions-- (a) to accept, assess, manage and investigate complaints relating to mental health service providers; (b) to endeavour to resolve complaints in a timely manner using formal and informal dispute resolution as appropriate, including conciliation; (c) to issue compliance notices; (d) to consult persons or bodies for the purposes of fulfilling his or her functions under this Act; (e) to provide advice on any matter relating to a complaint; (f) to make the procedure for making complaints in relation to mental health service providers available and accessible, 171

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 229 including publishing material about the complaints procedure; (g) to provide information, education and advice to mental health service providers about their responsibilities in managing complaints made by consumers; (h) to assist consumers and other persons referred to in section 232(1) to resolve complaints directly with mental health service providers, both before and after the Commissioner has accepted the complaints; (i) to assist mental health service providers to develop or improve policies and procedures to resolve complaints; (j) to identify, analyse and review quality, safety and other issues arising out of complaints and to make recommendations for improving the provision of mental health services to the following, as appropriate-- (i) mental health service providers; (ii) the chief psychiatrist; (iii) the Secretary; (iv) the Minister; (k) at the request of the Minister, to investigate into, and report on, any matter relating to mental health service providers; (l) to perform any other functions conferred on the Commissioner by this Act or any other Act or the regulations. 229 Powers of the Commissioner (1) The Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions under this Act. 172

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 230 (2) The Commissioner may by instrument delegate to a person or a class of persons employed under Part 3 of the Public Administration Act 2004 or to any person engaged under section 230(2) any power, duty or function of the Commissioner, other than this power of delegation. 230 Provision of staff and contractors (1) There may be employed under Part 3 of the Public Administration Act 2004 any staff that are necessary to assist the Commissioner in the performance of his or her powers, duties or functions under this Act. (2) The Commissioner may engage persons with suitable qualifications and experience as contractors. (3) An engagement under subsection (2) may be on any terms and conditions that the Commissioner is satisfied is appropriate to assist the Commissioner in the performance of his or her powers, duties or functions under this Act. 231 Protection from liability (1) The Commissioner is not personally liable for any thing done or omitted to be done in good faith-- (a) in the exercise of a power or the performance of a function under this Act; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under this Act. (2) Any liability resulting from an act or omission that, but for subsection (1), would attach to the Commissioner attaches instead to the State. 173

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 232 Division 2--Complaints management by the Commissioner 232 Making a complaint to the Commissioner (1) A person may make a complaint to the Commissioner in relation to a mental health service provider if the person-- (a) is a consumer; or (b) is acting at the request of a consumer; or (c) satisfies the Commissioner that he or she has a genuine interest in the wellbeing of a consumer. (2) Subject to subsection (3), if a complaint has been made to the Commissioner in relation to a mental health service provider by a person referred to in subsection (1)(b) or (c), the Commissioner must ensure that the consumer consents to the complaint being made before the Commissioner accepts the complaint. (3) The Commissioner is not required to obtain the consent of the consumer before accepting the complaint if the Commissioner is satisfied that-- (a) there are special circumstances that warrant the Commissioner accepting the complaint without the consumer's consent; and (b) accepting the complaint will not be detrimental to the wellbeing of the consumer. 233 Referred complaints (1) The following may refer to the Commissioner a complaint in relation to a consumer-- (a) the Australian Health Practitioner Regulation Agency; (b) the Community Visitors Mental Health Board; (c) the chief psychiatrist; 174

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 234 (d) the Public Advocate; (e) the Health Services Commissioner within the meaning of the Health Services (Conciliation and Review) Act 1987; (f) the Disability Services Commissioner within the meaning of the Disability Act 2006; (g) the Commission for Children and Young People within the meaning of the Commission for Children and Young People Act 2012; (h) the Commissioner of the Victorian Equal Opportunity and Human Rights Commission within the meaning of the Equal Opportunity Act 2010; (i) the Privacy Commissioner within the meaning of the Information Privacy Act 2000; (j) the Ombudsman appointed under the Ombudsman Act 1973. (2) A complaint referred to the Commissioner under subsection (1) may be treated by the Commissioner as a complaint made under section 232(1). 234 Grounds for making a complaint A complaint may be made to the Commissioner if the complaint relates to any matter arising out of the provision of mental health services or failure to provide mental health services by a mental health service provider. 175

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 235 235 How to make a complaint (1) A person may make a complaint orally or in writing to the Commissioner. Note A complaint may be made under subsection (1) by an electronic communication within the meaning of section 3(1) of the Electronic Transactions (Victoria) Act 2000. (2) A person who makes an oral complaint must confirm the complaint in writing as soon as practicable. (3) The Commissioner must take reasonable steps to assist a person who has made an oral complaint to confirm that complaint in writing. (4) A person who makes a complaint to the Commissioner must give his or her name and any other information relating to his or her identity as the Commissioner requires. (5) The Commissioner may keep information given to the Commissioner under subsection (4) confidential if the Commissioner is satisfied that-- (a) there are special circumstances; and (b) it is in the complainant's interest to keep the information confidential. (6) In making a determination under subsection (5), the Commissioner must consider whether keeping the information confidential would unreasonably limit another person's right to procedural fairness. 236 Time by when complaint to be made (1) Subject to subsection (2), a complaint made to the Commissioner must be made not more than 12 months after the matter occurred that is the subject of the complaint. 176

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 237 (2) The Commissioner may accept a complaint made more than 12 months after the matter occurred that is the subject of the complaint if the Commissioner is satisfied that there is a good reason for the delay by the person making the complaint. 237 Withdrawal of complaint (1) A person who has made a complaint to the Commissioner may withdraw the complaint at any time in writing. (2) The Commissioner must take reasonable steps to assist a person to withdraw a complaint in writing. (3) The Commissioner may continue to deal with a complaint despite the complaint being withdrawn under subsection (1) if the Commissioner is satisfied that-- (a) the health, safety or wellbeing of a consumer may be adversely affected; or (b) the complaint was withdrawn due to coercion or duress; or (c) it is in the public interest to deal with the complaint. 238 Preliminary assessment of complaint The Commissioner must, as soon as practicable but no later than 20 business days after receiving a complaint in writing or written confirmation of an oral complaint under this Division-- (a) close the complaint under section 240; or (b) accept the complaint under section 243. 177

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 239 239 Information relating to complaint to be provided The Commissioner may by notice in writing to the person who made the complaint or any other relevant person or body-- (a) request specified information relating to the complaint; and (b) specify the time by which such information must be given to the Commissioner. 240 Circumstances in which Commissioner may close a complaint (1) The Commissioner may close a complaint, or part of a complaint, if-- (a) the complaint, or part of the complaint, has already been determined by a court, board or tribunal and does not raise any matter or issue that was not considered in that determination; or (b) the complaint, or part of the complaint, is being considered by a court, board or tribunal; or (c) the Commissioner refers the complaint, or part of the complaint, to another body, organisation, agency or entity; or (d) the complaint, or part of the complaint, forms the basis of an investigation currently being conducted by another body, organisation, agency or entity; or (e) the complaint was made outside the time limits specified in this Division for making a complaint; or (f) the complaint was made orally and the complaint is not confirmed in writing within a reasonable period of time; or 178

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 241 (g) the person who made the complaint did not give the Commissioner information requested under section 239 or failed to give the information within the specified time; or (h) in the circumstances, the Commissioner is satisfied that it is appropriate to do so. (2) The Commissioner may close a complaint, or part of a complaint, if, at any point during consideration of the complaint the Commissioner is satisfied that the complaint, or part of the complaint, is resolved, having considered advice from the consumer. 241 Notice of complaint closure (1) Subject to section 235(5), if the Commissioner closes a complaint, or part of a complaint, under section 240, the Commissioner must, as soon as practicable after closing the complaint, give written notice of the closure to the consumer and, if the consumer did not make the complaint, to the person who made the complaint. (2) If the Commissioner has notified the mental health service provider that is the subject of the complaint about the complaint before the complaint was closed under section 240, the Commissioner must, as soon as practicable after closing the complaint, give written notice of the closure to the mental health service provider. (3) A notice given under this section must specify the reasons for the Commissioner's decision to close the complaint. 242 Referring a complaint with or without consent (1) The Commissioner may, with the consent of the consumer in relation to a complaint, refer the complaint, a part of the complaint or any matter arising from a complaint, to another body, organisation, agency or entity if the complaint 179

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 243 raises issues that the Commissioner is satisfied would be more appropriately dealt with by that other body, organisation, agency or entity. (2) The Commissioner may refer a complaint, part of a complaint or any matter arising from a complaint, to another body, organisation, agency or entity without the consent of the consumer in relation to the complaint if the Commissioner is satisfied that-- (a) the complaint raises issues that require investigation by that other body, organisation, agency or entity; and (b) it is in the public interest to refer the complaint to that other body, organisation, agency or entity. (3) If a complaint, part of a complaint or any matter arising from a complaint is referred to another body, organisation, agency or entity under subsection (1) or (2), the Commissioner may provide any information that the Commissioner has received in respect of the complaint to the body, organisation, agency or entity to which the complaint or matter has been referred. 243 Commissioner may accept complaints and undertakings (1) If the Commissioner accepts a complaint, the Commissioner must advise by written notice, as soon as practicable, the following persons of the acceptance-- (a) the person who made the complaint; (b) the consumer, if the person who made the complaint is not the consumer; (c) the mental health service provider. 180

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 243 (2) A notice to a mental health service provider under subsection (1)(c)-- (a) must include the particulars of the complaint; and (b) may include a request from the Commissioner for a written response to the complaint, including the time by which the written response must be given to the Commissioner. (3) The Commissioner may give a copy of any response given to the Commissioner under subsection (2)(b) to a person referred to in subsection (1)(a) or (1)(b). (4) After accepting a complaint under subsection (1), the Commissioner may do any one or more of the following-- (a) use any appropriate method to resolve the complaint in a timely manner, including, but not limited to, informal dispute resolution; (b) recommend to the parties that the complaint be conciliated; (c) conduct an investigation into the complaint and, subject to section 259, publish a report of any findings of the Commissioner, including any recommendations; (d) serve a compliance notice on a mental health service provider; (e) accept an undertaking given by a mental health service provider in a response given to the Commissioner under subsection (2)(b) to take remedial action in relation to the complaint. (5) The Commissioner may monitor a mental health service provider that has made an undertaking under subsection (4)(e) to assess the remedial 181

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 244 action that the mental health service provider has taken in relation to the undertaking. (6) The Commissioner may serve a compliance notice under section 260 on a mental health service provider in relation to an undertaking made under subsection (4)(e). Division 3--Conciliation 244 Conciliation process (1) The Commissioner may, if he or she is satisfied that it is appropriate in the circumstances, recommend to the parties to a complaint that the complaint be conciliated. (2) A complaint may only be conciliated if all parties to the complaint agree to the conciliation. (3) A conciliation conference must be held in private. (4) Subject to subsection (5), the conciliator may conduct the conciliation in any manner that the conciliator considers appropriate in order to resolve the complaint. (5) The conciliator must take reasonable steps to ensure that the conciliation is conducted in a manner that promotes the wellbeing of the consumer in relation to the complaint. 245 Parties may be represented at conciliation (1) A party to the complaint is entitled to legal representation at the conciliation. (2) A person who represents a mental health service provider (whether or not the person is an Australian legal practitioner) at the conciliation must be authorised to settle the complaint at conciliation on behalf of the mental health service provider. 182

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 246 (3) In addition to any legal representative, a consumer is entitled to be supported by another person at the conciliation. 246 Discontinuation of conciliation (1) A party to a conciliation may, at any time during the conciliation process, elect not to continue with the conciliation process by so notifying the conciliator in writing. (2) On receipt of a written notice under subsection (1), the conciliator must notify all other parties to the conciliation of the party's election to discontinue the conciliation. (3) If, at any time during a conciliation process, a conciliator is satisfied that conciliation is no longer appropriate in the circumstances, the conciliator must-- (a) discontinue the conciliation process; and (b) notify the parties to the conciliation in writing that the conciliation is discontinued. 247 Conciliation outcome (1) At the end of a conciliation process, the conciliator must report the outcome of the conciliation to the Commissioner in accordance with this section. (2) The conciliator must provide the Commissioner with a written report that states that-- (a) the parties have resolved the complaint and includes the details of any agreement signed by the parties under section 248; or (b) the parties to the conciliation have failed to reach a settlement; or 183

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 248 (c) the parties have partially resolved the complaint and includes the details of any agreement signed by the parties under section 248; or (d) the conciliation is discontinued under section 246. (3) The conciliator may recommend to the Commissioner that the Commissioner investigate any part or all of a complaint to which subsection (2)(b), (c) or (d) applies, if the conciliator is satisfied that it is appropriate in the circumstances. 248 Conciliation agreements If the parties to a conciliation reach an agreement, the conciliator must ensure that the agreement is-- (a) in writing; and (b) signed by all parties to the conciliation; and (c) given to all parties. 249 Secrecy (1) A conciliator may disclose to the Commissioner any information acquired during the course of the conciliation if the conciliator is satisfied that the disclosure is necessary to prevent serious and imminent harm to a person's health or safety. (2) Evidence of anything said or admitted during a conciliation process is not admissible in proceedings before a court or tribunal unless the evidence is disclosed to the Commissioner under subsection (1) or the parties to the conciliation consent to the admission. 184

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 250 (3) Except as specified in subsection (1) and sections 247 and 248, a conciliator must not disclose information communicated to the conciliator during the conciliation process. Penalty: 60 penalty units. Division 4--Investigations 250 Identity cards for investigators (1) The Commissioner must issue an identity card to each investigator. (2) An identity card issued under subsection (1) must-- (a) contain the signature of the investigator; and (b) be signed by the Commissioner. 251 Identity cards to be produced by investigators (1) Subject to subsection (2), an investigator must produce his or her identity card for inspection before exercising a power under this Act or the regulations. (2) If it is impracticable for an investigator to produce his or her identity card for inspection when exercising a power under this Act or the regulations, the investigator is not required to do so. (3) An investigator who conducts an investigation under this Division or who performs any other function under this Act or the regulations must state his or her name orally or in writing, if asked to do so during the course of conducting an investigation or performing those functions. 185

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 252 252 Investigation of a complaint (1) In conducting an investigation of a complaint-- (a) the procedure is at the discretion of the Commissioner, subject to this Division; and (b) the Commissioner must proceed with as little formality and technicality and with as much expedition as the requirements of this Act and proper investigation of the matter permit; and (c) the Commissioner is not bound by the rules of evidence but may be informed of any matter in any manner that the Commissioner is satisfied is appropriate; and (d) the Commissioner must have regard to the rules of procedural fairness. (2) During the course of an investigation, the Commissioner must take reasonable steps to ensure that a person who has made a complaint, the relevant mental health service provider and the consumer in relation to the complaint are informed of the progress of the investigation in a timely and appropriate manner. 253 Notice of investigation (1) The Commissioner must give written notice to a mental health service provider in accordance with subsection (2) if he or she conducts an investigation into the mental health service provider. (2) A notice under subsection (1) must-- (a) specify the scope and objectives of the investigation; and (b) specify the names of the investigators who will carry out the investigation; and 186

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 254 (c) specify the expected date of commencement for the investigation and the expected length of the investigation. 254 Power of entry (1) The Commissioner, or at the direction of the Commissioner, an investigator, may enter the premises of a mental health service provider for the purposes of investigating a complaint. (2) The Commissioner or an investigator who enters the premises of a mental health service provider under subsection (1) may do any one or more of the following-- (a) inspect, examine or make enquiries at the premises; (b) examine or inspect any thing, including a document or part of a document, at the premises; (c) bring any equipment or materials to the premises that may be required; (d) take any photographs or make any audio or visual recordings at the premises, including of a person at the premises provided the person has consented to having his or her photograph taken or the recording of him or her being made; (e) use any equipment at the premises; (f) make copies of, or take extracts from, any document kept at the premises; (g) speak to any person receiving mental health services at the premises, if the person agrees; (h) direct a person employed at the premises to produce a document or part of document located at the premises that is in the possession or control of the person; 187

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 255 (i) direct a person at the premises to answer any questions put by the investigator; (j) do any other thing that is reasonably necessary for the purpose of performing or exercising his or her functions or powers under this Act or the regulations. 255 Powers to compel attendance and call for evidence and documents Sections 14, 15 and 16 of the Evidence (Miscellaneous Provisions) Act 1958 apply to an investigation under this Division as if the Commissioner were a board appointed by the Governor in Council. 256 Restrictions on powers (1) The Commissioner must not conduct an investigation under this Division in relation to a complaint or exercise the powers under section 255 while the complaint is being conciliated. (2) Nothing in section 255 or the provisions of the Evidence (Miscellaneous Provisions) Act 1958 applied by that section or that Act prevents a person from-- (a) refusing to answer a question or produce a document because the answer would relate to, or the document contains, information in respect of which the person claims legal professional privilege or client legal privilege; or (b) refusing to answer a question or produce a document if the answer, or the information in the document, would tend to incriminate the person. 188

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 257 257 Report of findings following investigation (1) As soon as practicable after conducting an investigation into a complaint under this Division, the Commissioner must-- (a) make a finding about the substance of the complaint; and (b) decide on any action to be taken to resolve the complaint; and (c) prepare a written report specifying-- (i) the findings made under paragraph (a) and the reasons for these findings; and (ii) any action to be taken or that has already been taken under paragraph (b) to resolve the complaint. (2) The Commissioner must give a copy of a report prepared under subsection (1)(c) to-- (a) the person who made the complaint; and (b) if the person who made the complaint is not the consumer in relation to the complaint, the consumer; and (c) the mental health service provider in respect of which the complaint was made. (3) Despite subsection (2)(a), the Commissioner must not give a copy of the report to the person who made the complaint if-- (a) that person is not the consumer; and (b) the provision of the report would unreasonably breach the privacy of the consumer. (4) The Commissioner may give a copy of a report prepared under subsection (1)(c) to any person, body, organisation, agency or entity the 189

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 258 Commissioner is satisfied is appropriate including-- (a) the Minister; (b) the Secretary; (c) the chief psychiatrist. (5) If a copy of a report prepared under subsection (1)(c) is given to a person, body, organisation, agency or entity under subsection (4), the Commissioner must ensure that any information that may identify a person is omitted unless the person, body or organisation requires this information to comply with a duty or function under an Act. 258 Mental health service provider response to report A mental health service provider must respond in writing to the Commissioner within 30 business days after receiving a report under section 257(2)(c) and provide details of the actions that the mental health service provider has taken or will take to resolve the complaint. 259 Publication of report (1) The Commissioner may publish a report on an investigation prepared under section 257(1). (2) A report published under subsection (1)-- (a) may include-- (i) any response received from the mental health service provider that was the subject of the complaint during the course of the investigation; and (ii) any response made by the mental health service provider under section 258; and 190

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 260 (b) must not include any information that may identify a consumer or a person who has made a complaint, unless the consumer or that person consents to being identified in the published report. Division 5--Compliance notices 260 Compliance notice (1) The Commissioner may serve a compliance notice on a mental health service provider if he or she is satisfied that-- (a) the mental health service provider has not complied with an undertaking given under section 243; or (b) after conducting an investigation under Division 4, the mental health service provider has acted or engaged in a practice in contravention of this Act or the regulations; or (c) the mental health service provider has-- (i) acknowledged that the mental health service provider has acted or engaged in a practice in contravention of this Act or the regulations; and (ii) not given an undertaking under section 243. (2) A compliance notice may-- (a) specify the action to be taken by a mental health service provider for the purpose of ensuring compliance with an undertaking given under section 243 or compliance with this Act and the regulations; and (b) specify the time within which the action referred to in paragraph (a) is to be taken; and 191

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 261 (c) require the mental health service provider to report to the Commissioner within a specified time after having taken the action referred to in paragraph (a). (3) The Commissioner may extend the period specified in a compliance notice for taking specified action by a mental health service provider. 261 Application for review--compliance notice (1) A person or a mental health service provider whose interests are affected by a decision by the Commissioner under section 260(1) to serve a compliance notice may apply to VCAT for review of the decision. (2) An application for review must be made within 20 business days after the compliance notice is served. (3) The Commissioner is a party to a proceeding on a review under this section. 262 Offence not to comply with compliance notice (1) Subject to subsection (2), a mental health service provider must comply with a compliance notice served on it under section 260(1). Penalty: In the case of a body corporate, 1200 penalty units; In any other case, 240 penalty units. (2) A mental health service provider is not guilty of an offence under subsection (1) if-- (a) the period within which an application for review under section 261(1) may be made has not expired; or (b) an application for review has been made under section 261(1) and the matter has not been finalised. 192

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 263 Division 6--General 263 Requirement to provide reasonable assistance to Commissioner The following must provide the Commissioner with any reasonable assistance that the Commissioner requires to perform any duties or functions or exercise any powers under this Act-- (a) the management of a mental health service provider; (b) a member of staff, or former member of staff, of a mental health service provider; (c) a volunteer, or former volunteer, at a mental health service provider; (d) a member of the board, or former member of the board, of a mental health service provider. 264 Person not to be penalised because of complaining to Commissioner (1) A person must not, by threats, intimidation, undue influence or coercion, persuade or attempt to persuade another person-- (a) not to make a complaint to the Commissioner; or (b) to withdraw a complaint made to the Commissioner. Penalty: 240 penalty units. (2) A person must not dismiss another person, refuse to employ or engage another person or subject another person to any detriment because the other person-- (a) intends to complain, or has complained, to the Commissioner; or 193

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 265 (b) has not withdrawn, or refuses to withdraw, a complaint made to the Commissioner. Penalty: 240 penalty units. (3) A mental health service provider must take reasonable steps to ensure that the management of the mental health service provider or any member of staff of the mental health service provider does not take detrimental action against a consumer in relation to the mental health service provider in reprisal for the consumer making a complaint or for another person making a complaint on his or her behalf. 265 Secrecy (1) A person who is, or has been, the Commissioner or a person employed or engaged under section 230 must not, directly or indirectly, make a record of, disclose or communicate to any person, any information relating to the affairs of a natural person acquired in the performance of functions or duties or the exercise of powers under this Act, unless-- (a) it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act; or (b) the person to whom the information relates gives written consent to the making of the record, disclosure or communication. Penalty: 60 penalty units. (2) Subsection (1) does not prevent a person from producing a document to a court in the course of criminal proceedings or in the course of any proceedings under this Act or divulging or communicating to a court, in the course of any such proceedings, any matter or thing coming under the notice of the person in the performance 194

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 266 of official duties or in the performance of a function or in the exercise of a power referred to in subsection (1). 266 Local complaint mechanisms to be established by mental health service providers A mental health service provider is required to establish procedures for receiving, managing and resolving complaints made to the mental health service provider about the provision of mental health services. 267 Mental health service providers to report on complaints A mental health service provider must provide a biannual report to the Commissioner that-- (a) is in a form specified by the Commissioner; and (b) specifies the number of complaints received by the mental health service provider and the outcome of the complaints. 268 Annual report of the Commissioner (1) As soon as practicable after the end of each financial year but not later than 31 October, the Commissioner must submit to the Minister an annual report containing a review of the operation of the Commissioner during the 12 months ending on the preceding 30 June including-- (a) the number of complaints made to the Commissioner; and (b) the outcomes of those complaints; and (c) any educational services provided by the Commissioner; and (d) any information requested in writing by the Minister. 195

Mental Health Act 2014 No. of 2014 Part 10--Complaints s. 268 (2) The Minister must cause the annual report of the Commissioner to be laid before the Legislative Council and the Legislative Assembly before the expiration of the fourteenth sitting day of the Legislative Council or the Legislative Assembly, as the case may be, after the annual report has been received by the Minister. __________________ 196

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 269 PART 11--SECURITY PATIENTS Division 1--Preliminary 269 Construction of references In this Part-- (a) a reference to the Secretary to the Department of Justice includes a reference to-- (i) the Secretary to the Department of Human Services in relation to a person who is, or who immediately before being detained in a designated mental health service was, detained in a remand centre, youth residential centre or youth justice centre within the meaning of the Children, Youth and Families Act 2005; and (ii) the Chief Commissioner of Police in relation to a person who is, or who immediately before being detained in a designated mental health service was-- (A) serving a sentence of imprisonment in a police gaol within the meaning of the Corrections Act 1986; or (B) being held in police custody on the order of a court; (b) a reference to a prison or other place of confinement includes a reference to-- (i) a remand centre, youth residential centre or youth justice centre within the meaning of the Children, Youth and Families Act 2005; and (ii) a police gaol within the meaning of the Corrections Act 1986. 197

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 270 Division 2--Court Secure Treatment Orders Note See Part 5 of the Sentencing Act 1991 in relation to Court Secure Treatment Orders. 270 Taking person subject to a Court Secure Treatment Order from prison to designated mental health service (1) The Secretary to the Department of Justice may make a direction that a person who is subject to a Court Secure Treatment Order be taken from a prison or other place of confinement to a designated mental health service. (2) The Secretary to the Department of Justice must not make a direction under this section unless-- (a) the person has been examined by a psychiatrist and the Secretary to the Department of Justice is satisfied by the production of the psychiatrist's report and any other evidence that the criteria for making a Court Secure Treatment Order referred to in section 94B(1)(c) of the Sentencing Act 1991 apply to the person; and (b) the Secretary to the Department of Justice has received a report from the authorised psychiatrist for the designated mental health service to which it is proposed that the person be taken-- (i) recommending the making of the direction; and (ii) stating that there are facilities or services available at the designated mental health service for the detention and treatment of the person. 198

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 271 271 Notification of receipt of security patient subject to a Court Secure Treatment Order As soon as practicable after a security patient who is subject to a Court Secure Treatment Order has been received at a designated mental health service, the authorised psychiatrist must notify the Tribunal of the security patient's receipt and ensure that reasonable steps are taken to inform the following persons in relation to the security patient of the security patient's receipt-- (a) the nominated person; (b) a guardian; (c) a carer, if the authorised psychiatrist is satisfied that the receipt of the security patient will directly affect the carer and the care relationship; (d) a parent, if the security patient is under the age of 16 years; (e) the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 272 Application to Tribunal in relation to security patient subject to Court Secure Treatment Order (1) A security patient who is subject to a Court Secure Treatment Order may apply to the Tribunal to conduct a hearing and determine whether the criteria set out in section 94B(1)(c) of the Sentencing Act 1991 currently apply to the patient. (2) The following persons may apply to the Tribunal on behalf of a security patient who is subject to a Court Secure Treatment Order to conduct a hearing and determine whether the criteria set out 199

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 273 in section 94B(1)(c) of the Sentencing Act 1991 currently apply to the security patient-- (a) any person, at the request of the security patient; (b) a guardian of the security patient; (c) a parent of the security patient, if the security patient is under the age of 16 years; (d) the Secretary, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 273 Tribunal hearing in relation to Court Secure Treatment Order (1) The Tribunal must conduct a hearing to determine whether the criteria set out in section 94B(1)(c) of the Sentencing Act 1991 currently apply to the security patient who is subject to a Court Secure Treatment Order-- (a) within 28 days after the security patient is received at the designated mental health service; and (b) at least every 6 months following the initial review of the Order under paragraph (a) until the person ceases to be a security patient; and (c) on an application made under section 272 by the security patient or on his or her behalf. (2) If the Tribunal is satisfied that the criteria set out in section 94B(1)(c) of the Sentencing Act 1991 currently apply to the security patient, the Tribunal must order that the person remain a security patient. 200

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 274 (3) If the Tribunal is not satisfied that the criteria set out in section 94B(1)(c) of the Sentencing Act 1991 currently apply to the security patient, the Tribunal must order that the person be discharged as a security patient. 274 Discharge of person subject to a Court Secure Treatment Order (1) An authorised psychiatrist must discharge a person as a security patient who is subject to a Court Secure Treatment Order if-- (a) the authorised psychiatrist determines that the criteria for making a Court Secure Treatment Order under section 94B(1)(c) of the Sentencing Act 1991 in relation to the person no longer apply; or (b) the Tribunal makes an Order under section 273(3) that the person be discharged as a security patient; or (c) section 295(1) applies. (2) A person who is discharged as a security patient under subsection (1) ceases to be a security patient who is subject to a Court Secure Treatment Order-- (a) on entering the legal custody of the Secretary to the Department of Justice; or (b) if an order has been made under section 74(8A) of the Corrections Act 1986 for the person to be released on parole and the time for release has occurred, on the release of that person. Note A person who is discharged as a security patient under this subsection (1)(a) or (1)(b) must serve the unexpired portion of the Court Secure Treatment Order in a prison or other place of confinement--see section 94C(5) of the Sentencing Act 1991. 201

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 275 Division 3--Secure Treatment Order 275 What is a Secure Treatment Order? A Secure Treatment Order is an Order made by the Secretary to the Department of Justice that enables a person who is subject to the Order to be compulsorily taken from a prison or other place of confinement to a designated mental health service and detained and treated at the designated mental health service. 276 Making a Secure Treatment Order (1) The Secretary to the Department of Justice may make a Secure Treatment Order in relation to a person if-- (a) the person is detained in a prison or other place of confinement; and (b) the person has been examined by a psychiatrist and the Secretary to the Department of Justice is satisfied by the production of the psychiatrist's report and any other evidence that the following criteria apply to the person-- (i) the person has mental illness; and (ii) because the person has mental illness, the person needs immediate treatment to prevent-- (A) serious deterioration in the person's mental or physical health; or (B) serious harm to the person or to another person; and (iii) immediate treatment will be provided to the person if the person is made subject to a Secure Treatment Order; and 202

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 277 (iv) there is no less restrictive means reasonably available to enable the person to receive the immediate treatment; and (c) the Secretary to the Department of Justice has received a report from the authorised psychiatrist for the designated mental health service to which it is proposed that the person be taken-- (i) recommending the making of the Secure Treatment Order; and (ii) stating that there are facilities or services available at the designated mental health service for the detention and treatment of the person. (2) Subsection (1) does not apply to a person who is-- (a) detained in a prison under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (whether on remand or under a supervision order made under that Act); or (b) subject to a Court Secure Treatment Order and is detained in a prison or other place of confinement. 277 Notification of receipt of security patient subject to a Secure Treatment Order As soon as practicable after a security patient who is subject to a Secure Treatment Order has been received at a designated mental health service, the authorised psychiatrist must notify the Tribunal of the security patient's receipt and ensure that reasonable steps are taken to inform the following persons in relation to the security patient of the security patient's receipt-- 203

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 278 (a) the nominated person; (b) a guardian; (c) a carer, if the authorised psychiatrist is satisfied that the receipt of the security patient will directly affect the carer and the care relationship; (d) a parent, if the security patient is under the age of 16 years; (e) the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 278 Application for revocation of Secure Treatment Order (1) A security patient who is subject to a Secure Treatment Order may apply to the Tribunal to revoke the Secure Treatment Order. (2) The following persons may apply to the Tribunal on behalf of a security patient who is subject to a Secure Treatment Order to revoke the Order-- (a) any person, at the request of the security patient; (b) a guardian of the security patient; (c) a parent of the security patient, if the person is under the age of 16 years; (d) the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 204

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 279 279 Tribunal hearing in relation to Secure Treatment Order (1) The Tribunal must conduct a hearing and determine whether the criteria set out in section 276(1)(b) currently apply to the security patient who is subject to a Secure Treatment Order-- (a) within 28 days after the security patient is received at the designated mental health service; and (b) at least every 6 months following the initial review of the Order under paragraph (a) until the person ceases to be a security patient; and (c) on an application made under section 278 by the security patient or by a person on his or her behalf. (2) If the Tribunal is satisfied that the criteria set out in section 276(1)(b) currently apply to the security patient, the Tribunal must order that the person remain a security patient. (3) If the Tribunal is not satisfied that the criteria set out in section 276(1)(b) currently apply to the security patient, the Tribunal must make an order that the person be discharged as a security patient. 280 Discharge of person subject to a Secure Treatment Order (1) An authorised psychiatrist must discharge a person as a security patient who is subject to a Secure Treatment Order if-- (a) the authorised psychiatrist determines that the criteria set out in section 276(1)(b) for making a Secure Treatment Order in relation to the person no longer apply; or 205

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 281 (b) the Tribunal makes an Order under section 279(3) that the person be discharged as a security patient; or (c) section 295(1) applies. (2) A person who is discharged as a security patient under subsection (1) ceases to be a security patient-- (a) on entering the legal custody of the Secretary to the Department of Justice; or (b) if an order has been made under section 74 of the Corrections Act 1986 that the person be released on parole and the time for release has occurred, on the release of the person. (3) A Secure Treatment Order is revoked on the person being discharged as a security patient under this section. Division 4--Leave of absence 281 Grant of leave of absence (1) Subject to subsections (2), (3) and (4), an authorised psychiatrist may grant a security patient a leave of absence from a designated mental health service-- (a) for the purpose of receiving treatment or medical treatment; or (b) for any other purpose that the authorised psychiatrist is satisfied is appropriate. (2) The authorised psychiatrist may grant a security patient a leave of absence for a period-- (a) not exceeding 7 days, in the case of leave granted for the purpose of receiving treatment or medical treatment; or (b) not exceeding 24 hours, in any other case. 206

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 281 (3) The authorised psychiatrist may grant a leave of absence for a security patient subject to any conditions that he or she is satisfied is necessary or vary the conditions or duration of the leave of absence-- (a) having regard to the purpose of the leave; and (b) if satisfied on the evidence available that the health and safety of the security patient or the safety of any other person will not be seriously endangered as a result. (4) In determining whether to grant a leave of absence to a security patient, to grant a leave of absence subject to conditions or to vary its conditions or duration, the authorised psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (a) the security patient's views and preferences about the leave and the reasons for those views and preferences, including the recovery outcomes that the security patient would like to achieve; (b) the views and preferences of the security patient expressed in his or her advance statement; (c) the views of the security patient's nominated person; (d) the views of a guardian of the security patient; (e) the views of the security patient's carer, if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship; 207

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 282 (f) the views of a parent of the security patient, if the security patient is under the age of 16 years; (g) the views of the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 282 Revocation of leave of absence The authorised psychiatrist may revoke a security patient's leave of absence by notice in writing and require the security patient to return to the designated mental health service if the authorised psychiatrist is satisfied that-- (a) revocation of leave is necessary to prevent-- (i) serious deterioration in the security patient's mental or physical health; or (ii) serious harm to the security patient or to another person; or (b) the security patient has failed to comply with a condition to which the leave of absence is subject; or (c) the purpose for the leave of absence no longer exists. 283 Notification requirements for leave of absence (1) Before granting a security patient a leave of absence, the authorised psychiatrist must advise the Secretary to the Department of Justice. (2) As soon as practicable after the authorised psychiatrist grants, varies or revokes a leave of absence, the authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the security patient of the decision and to explain its purpose and effect; and 208

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 284 (b) to notify the following persons in relation to the security patient of the decision-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship; (iv) a parent, if the security patient is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order; (vi) the Secretary to the Department of Justice. 284 Application to Tribunal (1) A security patient may make an application to the Tribunal for a review of an authorised psychiatrist's decision to not grant a leave of absence under section 281. (2) The Tribunal must hear and determine an application under subsection (1) as soon as practicable and have regard, to the extent that is reasonable in the circumstances, to the matters referred to in section 281(4) when determining the application. (3) If the Tribunal is satisfied on the evidence available that the health and safety of the security patient or the safety of any other person will not be seriously endangered as a result of granting the security patient a leave of absence, the Tribunal must grant the application and direct the 209

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 285 authorised psychiatrist to grant a leave of absence subject to specified conditions and for a period-- (a) not exceeding 7 days, in the case of leave granted for the purpose of receiving treatment or medical treatment; or (b) not exceeding 24 hours, in any other case. (4) If the Tribunal is not satisfied on the evidence available that the health and safety of the security patient or the safety of any other person will not be seriously endangered as a result of granting the security patient a leave of absence, the Tribunal must refuse to grant the application. Division 5--Monitored leave 285 Monitored leave application and grant (1) An application for monitored leave for a security patient may be made to the Secretary to the Department of Justice by the following persons-- (a) the security patient; (b) the authorised psychiatrist for the designated mental health service in which the security patient is detained; (c) any person, at the request of the security patient; (d) a guardian of the security patient; (e) a parent of the security patient, if the patient is under the age of 16 years; (f) the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 210

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 286 (2) An application for monitored leave may be made and granted under this section more than once, but only one grant of monitored leave may be in force at any one time in respect of a security patient. (3) The Secretary to the Department of Justice may grant monitored leave for a period not exceeding 6 months if, on the evidence available, he or she is satisfied that the health and safety of the security patient or the safety of any other person will not be seriously endangered as a result, having regard to the purpose of the monitored leave. (4) The purposes for which the Secretary to the Department of Justice may grant monitored leave are one or more of the following purposes-- (a) to rehabilitate the security patient; (b) to maintain or re-establish the security patient's family relationships or relationships with others who can assist in supporting the patient; (c) to re-integrate the security patient with the community; (d) to prepare the security patient for release. 286 Monitored leave conditions, duration and variation (1) The Secretary to the Department of Justice may grant monitored leave under section 285 subject to any conditions that he or she considers necessary-- (a) having regard to the purpose of the monitored leave; and (b) if satisfied on the evidence available that the health and safety of the security patient and the safety of any other person will not be seriously endangered as a result. 211

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 287 (2) The Secretary to the Department of Justice may vary the monitored leave conditions or the duration of the monitored leave if he or she considers this necessary-- (a) having regard to the purpose for which the leave is granted; and (b) if satisfied on the evidence available that the health and safety of the security patient and the safety of any other person will not be seriously endangered as a result. 287 Matters to take into account In determining whether to grant monitored leave under section 285 or whether to vary its conditions or duration under section 286, the Secretary to the Department of Justice must-- (a) to the extent that is reasonable in the circumstances, have regard to all of the following-- (i) the security patient's views and preferences about the leave and the reasons for those views and preferences, including the recovery outcomes that the patient would like to achieve; (ii) the views and preferences of the security patient expressed in his or her advance statement; (iii) the views of the security patient's nominated person; (iv) the views of a guardian of the security patient; (v) the views of the security patient's carer, if the Secretary to the Department of Justice is satisfied that the decision will 212

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 288 directly affect the carer and the care relationship; (vi) the views of a parent of the security patient, if the patient is under the age of 16 years; (vii) the views of the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order; and (b) have regard to the security patient's applicant profile and leave plan. 288 Applicant profiles and leave plans for monitored leave (1) If an application for monitored leave is made by or on behalf of a security patient, an authorised psychiatrist for the designated mental health service in which the security patient is detained must prepare for the Secretary to the Department of Justice the following documents in relation to the security patient-- (a) an applicant profile in accordance with subsection (2); (b) if the authorised psychiatrist is satisfied that monitored leave should be granted, a leave plan in accordance with subsection (3); (c) if the authorised psychiatrist is satisfied that monitored leave should not be granted-- (i) a written statement containing the reasons why the leave should not be granted; and (ii) any information that the authorised psychiatrist considers relevant; and 213

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 289 (iii) any other information requested by the Secretary to the Department of Justice. (2) For the purposes of subsection (1)(a), an applicant profile must include information concerning-- (a) the security patient's mental illness; and (b) the relationship between the security patient's mental illness and his or her offending behaviour; and (c) the security patient's clinical history and social circumstances; and (d) the security patient's current mental state. (3) For the purposes of subsection (1)(b), a leave plan must include information concerning-- (a) the purpose of the proposed monitored leave; and (b) any proposed monitored leave conditions; and (c) any other information that the authorised psychiatrist considers relevant; and (d) any other information requested by the Secretary to the Department of Justice. 289 Revocation of monitored leave The Secretary to the Department of Justice may revoke a security patient's monitored leave by notice in writing and require the security patient to return to the designated mental health service if the Secretary is satisfied that-- (a) the revocation is necessary to prevent-- (i) serious deterioration in the security patient's mental or physical health; or (ii) serious harm to the security patient or to another person; or 214

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 290 (b) the security patient has failed to comply with a condition to which the monitored leave is subject; or (c) the purpose for the monitored leave no longer exists. 290 Notification requirements for monitored leave (1) As soon as practicable after granting, varying or revoking monitored leave, the Secretary to the Department of Justice must notify the authorised psychiatrist for the designated mental health service in which the security patient is or was detained of his or her decision. (2) The authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the security patient of the Secretary's decision and to explain its purpose and effect; and (b) to notify the following persons in relation to the security patient of the decision-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship; (iv) a parent, if the security patient is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 215

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 291 Division 6--Taking security patients to another designated mental health service 291 Authorised psychiatrist may direct security patient to be taken to another designated mental health service (1) An authorised psychiatrist may make a direction that a security patient is to be taken to another designated mental health service if-- (a) the authorised psychiatrist is satisfied that this is necessary for the security patient's treatment; and (b) the authorised psychiatrist for the designated mental health service which is to provide the treatment to the security patient approves. (2) In determining whether the security patient is to be taken to another designated mental health service, the authorised psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following-- (a) the security patient's views and preferences about receiving treatment at another designated mental health service and the reasons for those views and preferences, including the recovery outcomes the security patient would like to achieve; (b) the views or preferences expressed by the security patient in his or her advance statement; (c) the views of the security patient's nominated person; (d) the views of a guardian of the security patient; 216

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 292 (e) the views of the security patient's carer, if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship; (f) the views of a parent of the security patient, if the security patient is under the age of 16 years; (g) the views of the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order; (h) the views of the Secretary to the Department of Justice. 292 Chief psychiatrist may direct security patient to be taken to another designated mental health service (1) The chief psychiatrist may direct an authorised psychiatrist to arrange for a security patient to be taken to another designated mental health service if the chief psychiatrist is satisfied that this is necessary for the security patient's treatment. (2) In determining whether a security patient is to be taken to another designated mental health service, the chief psychiatrist must, to the extent that is reasonable in the circumstances, have regard to the matters referred to in section 291(2). 293 Role of authorised psychiatrist in taking security patient to another designated mental health service (1) As soon as practicable after making a direction under section 291 or receiving a direction under section 292(1), the authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the security patient of the direction to take the security patient to another designated mental health service and to explain its purpose and effect; and 217

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 294 (b) to notify the following persons in relation to the security patient of the direction-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order; and (c) to take the security patient to the receiving designated mental health service; and (d) to forward any documents relevant to the treatment of the security patient to the receiving designated mental health service. (3) As soon as practicable after a security patient is taken to the receiving designated mental health service, the authorised psychiatrist of that designated mental health service must ensure that reasonable steps are taken to notify the Secretary to the Department of Justice that the security patient has been received at that designated mental health service. 294 Application to Tribunal for review of direction to take security patient to another designated mental health service (1) A security patient who is subject to a direction made under section 291 or 292 to be taken to another designated mental health service may 218

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 294 apply within 20 business days after the direction is made to the Tribunal for a review of the direction. (2) The following persons may apply to the Tribunal for a review of the direction made under section 291 or 292 on behalf of a security patient referred to in subsection (1) within 20 days after the direction is made-- (a) any person, at the request of the security patient; (b) a guardian of the security patient; (c) a parent of the security patient, if the security patient is under the age of 16 years; (d) the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order. (3) As soon as practicable after an application is made, the Tribunal must hear and determine the application. (4) On hearing an application under this section, the Tribunal must, to the extent that is reasonable in the circumstances, have regard to the matters referred to in section 291(2). (5) The Tribunal must-- (a) refuse to grant the application if the Tribunal is satisfied that taking the security patient to another designated mental health service is necessary for the patient's treatment; or (b) grant the application if the Tribunal is not satisfied that taking the security patient to another designated mental health service is necessary for the patient's treatment. 219

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 295 (6) If the Tribunal grants the application and the security patient has been taken to another designated mental health service, the Tribunal must direct that the security patient be returned to the original designated mental health service. (7) If the Tribunal refuses to grant the application, the security patient must be taken to the receiving designated mental health service as directed by the authorised psychiatrist or the chief psychiatrist. Division 7--General security patient matters 295 Cessation of security patient status (1) A person immediately ceases to be a security patient if-- (a) the person's sentence of imprisonment or detention in a prison or other place of confinement expires; or (b) the Court Secure Treatment Order to which the person was subject expires; or (c) the person is granted bail; or (d) a court releases the person from custody; or (e) an order has been made under section 74 of the Corrections Act 1986 that the person be released on parole and the time for release has occurred. (2) The Secretary to the Department of Justice must notify the authorised psychiatrist as soon as practicable of the date on which a security patient's sentence of imprisonment or detention is to expire. 220

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 296 296 Security conditions (1) A security patient is subject to such security conditions as the authorised psychiatrist is satisfied are necessary to protect the health and safety of the patient or the safety of any other person. (2) The security conditions apply while the security patient is-- (a) detained in a designated mental health service; or (b) absent from a designated mental health service on leave or monitored leave; or (c) taken to and from such places as may be necessary for the administration of this Act. 297 Notification and directions following discharge of security patient subject to Court Secure Treatment Order or Secure Treatment Order (1) An authorised psychiatrist must notify the Secretary to the Department of Justice that he or she intends to discharge a person as a security patient-- (a) in the case of a person who is subject to a Court Secure Treatment Order, under section 274(1); or (b) in the case of a person who is subject to a Secure Treatment Order, under section 280(1). (2) An authorised psychiatrist must notify the Tribunal (unless the Tribunal ordered that the person be discharged as a security patient) as soon as practicable after discharging a person as a security patent. 221

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 298 (3) An authorised psychiatrist who has discharged a person as a security patient must ensure that reasonable steps are taken-- (a) to notify the person that he or she has been discharged as a security patient and to explain to the person the purpose and effect of the discharge; and (b) to notify the following persons in relation to the person who is discharged that the person has been discharged-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the discharge will directly affect the carer and the care relationship; (iv) a parent, if the person is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order. (3) As soon as practicable after the Secretary to the Department of Justice is notified under subsection (1), the Secretary to the Department of Justice must make the necessary arrangements to take the person to a prison or other place of confinement if the person is discharged under section 274(1)(a) or (b) or 280(1)(a) or (b). 298 Custody of security patients A security patient is in the custody of the authorised psychiatrist from the time when the security patient is received at the designated mental health service until-- 222

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 299 (a) the person ceases to be a security patient under section 295; or (b) if the authorised psychiatrist discharges the person as a security patient, the person enters the legal custody of the Secretary to the Department of Justice. 299 Warrant to arrest security patient absent without leave who leaves Victoria (1) An appropriate person may apply to the Supreme Court, the County Court or the Magistrates' Court for a warrant to arrest a security patient if it appears to the appropriate person that the security patient-- (a) is absent from a designated mental health service without leave of absence; and (b) is no longer in Victoria. (2) The court to which the application is made may order that a warrant to arrest be issued against the security patient if the court is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in subsection (1)(a) and (b). Note Under the Service and Execution of Process Act 1992 of the Commonwealth, a person who is apprehended interstate under a warrant issued in Victoria is to be taken before a magistrate in the place where the person is apprehended. That Act provides for the magistrate to specify the place in Victoria to which the person is then to be taken. (3) In this section, appropriate person means-- (a) the authorised psychiatrist; or (d) the chief psychiatrist; or (c) the Secretary; or (d) the Secretary to the Department of Justice. 223

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 300 Division 8--Interstate security patients 300 Definitions In this Division-- interstate security patient means a person who-- (a) has been convicted of an offence in another State or Territory that would be an offence if committed in Victoria; and (b) is serving a sentence of imprisonment in any relevant State (other than Victoria) for that offence (whether in a prison or otherwise); and (c) is required to receive involuntary treatment for mental illness in the State in which he or she is serving his or her sentence; mental health facility means a facility for the detention and treatment of persons who have mental illness; relevant State, in relation to an interstate security patient, means the State or Territory in which the sentence was imposed on the security patient. 301 Warrant to arrest interstate security patient who absconds to Victoria (1) The Secretary may apply to the Magistrates' Court for a warrant to arrest a person if the Secretary is satisfied that-- (a) the person is an interstate security patient; and (b) the person is in Victoria; and 224

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 301 (c) the person could be apprehended in the relevant State, if the person were still in that State, because he or she is absent without leave or other lawful authority from a mental health facility in the relevant State; and (d) one of the following applies-- (i) the person cannot be lawfully apprehended in Victoria because a warrant to apprehend or arrest the person has not been or cannot be issued in the relevant State, or such a warrant cannot be executed in Victoria; (ii) the person cannot be lawfully apprehended in Victoria under section 326; (iii) although the person could be lawfully apprehended in Victoria, the person would not be able to be returned to the relevant State following the apprehension. (2) For the purposes of subsection (1)(c), a person is taken to be absent without lawful authority from a mental health facility in a relevant State if the person did not return to the facility when required to do so under a law of that State. (3) If the Magistrates' Court is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in subsection (1)(a) to (d), the court may order that a warrant to arrest be issued against the person who is the subject of the application. (4) Despite section 64(2)(a) of the Magistrates' Court Act 1989, a person arrested under a warrant issued under this section must be brought before the Magistrates' Court on the day of his or her arrest or on the next sitting day of the court. 225

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 302 302 Orders that Magistrates' Court may make in respect of interstate security patients (1) If a person arrested under a warrant issued under section 301 is brought before the Magistrates' Court, the court must make-- (a) an order granting the person bail; or (b) an order remanding the person in custody in a prison or other place of confinement-- unless the court is satisfied that the matters specified in section 301(1)(a) to (d) are not made out. (2) If the court is satisfied that any one of the matters specified in section 301(1)(a) to (c) is not made out, the court must discharge the person. (3) If the court is satisfied that the matters specified in section 301(1)(a) to (c) are made out, but that the person can be returned to the relevant State, the court must order the person to be released into the custody of a person who is authorised to escort the person to the relevant State. 303 Translated sentence for interstate security patient (1) Within 7 days after an interstate security patient is granted bail or remanded in custody in a prison under section 302(1), the Secretary must apply to the Supreme Court for a translated sentence to be imposed on the interstate security patient. (2) The Supreme Court may deal with the application itself or refer the application to the County Court. (3) On an application under subsection (1), the court must, by order, impose a translated sentence on the interstate security patient and determine the period of that sentence already served, unless the court is satisfied that the interstate security patient can be returned to the relevant State. 226

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 304 (4) If the court is satisfied that the interstate security patient can be returned to the relevant State, the court must order that the patient be released into the custody of a person who is authorised to escort the interstate security patient to the relevant State. (5) The translated sentence must be a sentence of the same duration as that imposed on the interstate security patient in the relevant State in respect of the offence that resulted in his or her becoming an interstate security patient. (6) In determining the period of the translated sentence already served, the court must take into account-- (a) the period of the sentence already served in the relevant State; and (b) the period since the interstate security patient was first arrested in Victoria under a warrant issued under section 301. 304 Provisions relating to translated sentences (1) Subject to this section, a translated sentence imposed on an interstate security patient under section 303 has the same effect as if it had been imposed on the interstate security patient under the Sentencing Act 1991 on conviction for an offence in Victoria. (2) If, under the law of the relevant State, a court has fixed a non-parole period in respect of a sentence imposed on the interstate security patient, that non-parole period is taken to have been fixed by the court in Victoria in respect of the translated sentence. 227

Mental Health Act 2014 No. of 2014 Part 11--Security Patients s. 304 (3) If the sentence imposed on an interstate security patient, or any non-parole period in respect of that sentence-- (a) is varied, quashed or set aside on a review by or appeal to a court in the relevant State, the translated sentence or non-parole period is taken to have been varied to the same extent, or to have been set aside, by a corresponding court in Victoria; or (b) is otherwise varied or ceases to have effect as a result of action taken by any person or authority in the relevant State, the translated sentence is taken to have been varied to the same extent, or to have ceased to have effect, as a result of action taken by an appropriate person or authority in Victoria. __________________ 228

Mental Health Act 2014 No. of 2014 Part 12--Forensic Patients s. 305 PART 12--FORENSIC PATIENTS 305 Definition (1) In this Part-- forensic patient means-- (a) a person remanded in custody in a designated mental health service under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or (b) a person committed to custody in a designated mental health service by a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or (c) a person detained in a designated mental health service under section 30(2) or 30A(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or (d) a person deemed to be a forensic patient by section 73E(4) or 73K(8) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or (e) a person detained in a designated mental health service under section 20BJ(1) or 20BM of the Crimes Act 1914 of the Commonwealth; or (f) a person who is an international forensic patient within the meaning of section 73O of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or 229

Mental Health Act 2014 No. of 2014 Part 12--Forensic Patients s. 306 (g) a person taken from a prison to a designated mental health service in accordance with a direction made by the Secretary to the Department of Justice under section 306. (2) A person does not cease to be a forensic patient under subsection (1) if he or she-- (a) is on leave of absence from a designated mental health service; or (b) is absent from a designated mental health service without leave. 306 Persons detained in prison under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 taken to designated mental health service (1) Subject to subjection (2), the Secretary to the Department of Justice may make a direction that a person who is detained in a prison under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (whether on remand or under a supervision order made under that Act) be taken to a designated mental health service as a forensic patient. (2) The Secretary to the Department of Justice must not make a direction under this section unless-- (a) the person has been examined by a psychiatrist and the Secretary to the Department of Justice is satisfied by production of the psychiatrist's report and any other evidence that the following criteria apply to the person-- (i) the person has mental illness; and 230

Mental Health Act 2014 No. of 2014 Part 12--Forensic Patients s. 306 (ii) because the person has mental illness, the person needs treatment to prevent-- (A) serious deterioration in the person's mental or physical health; or (B) serious harm to the person or to another person; and (iii) the treatment referred to in subparagraph (ii) will be provided to the person if the person is taken to a designated mental health service; and (b) the Secretary to the Department of Justice has received a report from the authorised psychiatrist for the designated mental health service to which it is proposed that the person be taken-- (i) recommending the making of the direction; and (ii) stating that there are facilities or services available at the designated mental health service for the detention and treatment of the person. (3) As soon as practicable after a forensic patient is received at a designated mental health service in accordance with a direction under subsection (1), the authorised psychiatrist must ensure that reasonable steps are taken to inform the following persons in relation to the forensic patient of the forensic patient's receipt-- (a) the nominated person; (b) a guardian; (c) a carer, if the authorised psychiatrist is satisfied that the receipt of the forensic patient will directly affect the carer and the care relationship; 231

Mental Health Act 2014 No. of 2014 Part 12--Forensic Patients s. 307 (d) a parent, if the forensic patient is under the age of 16 years; (e) the Secretary to the Department of Human Services, if the forensic patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 307 Authorised psychiatrist may direct taking forensic patient to another designated mental health service (1) Subject to subsection (2), an authorised psychiatrist may make a direction that a forensic patient be taken to another designated mental health service if-- (a) the authorised psychiatrist is satisfied that this is necessary for the forensic patient's treatment; and (b) the authorised psychiatrist for the designated mental health service which is to provide the treatment to the forensic patient approves. (2) The authorised psychiatrist must not make a direction under subsection (1) in respect of a forensic patient detained under section 20BJ(1) or 20BM of the Crimes Act 1914 of the Commonwealth but may recommend to the Attorney-General for the Commonwealth the making of an order under section 20BJ(2) or 20BM(7) of that Act varying the designated mental health service in which the forensic patient is detained. (3) In determining whether taking a forensic patient to another designated mental health service is necessary for the forensic patient's treatment, the authorised psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following-- 232

Mental Health Act 2014 No. of 2014 Part 12--Forensic Patients s. 308 (a) the forensic patient's views and preferences and the reasons for those views and preferences, including any recovery outcomes the patient would like to achieve; (b) the views or preferences expressed by the forensic patient in his or her advance statement; (c) the views of the forensic patient's nominated person; (d) the views of a guardian of the forensic patient; (e) the views of a carer of the forensic patient, if the authorised psychiatrist is satisfied that the direction will directly affect the carer and the care relationship; (f) the views of a parent, if the forensic patient is under the age of 16 years; (g) the Secretary to the Department of Human Services, if the forensic patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 308 Chief psychiatrist may direct forensic patient to be taken to another designated mental health service (1) Subject to subsection (2), the chief psychiatrist may direct an authorised psychiatrist to arrange for a forensic patient to be taken to another designated mental health service if the chief psychiatrist is satisfied that this is necessary for the forensic patient's treatment. (2) The chief psychiatrist must not make a direction under subsection (1) in respect of a forensic patient detained under section 20BJ(1) or 20BM of the Crimes Act 1914 of the Commonwealth but may recommend to the Attorney-General for the Commonwealth the making of an order under 233

Mental Health Act 2014 No. of 2014 Part 12--Forensic Patients s. 309 section 20BJ(2) or 20BM(7) of that Act varying the designated mental health service in which the forensic patient is detained. (3) In determining to make a direction under subsection (1), the chief psychiatrist must, to the extent that is reasonable in the circumstances, have regard to the matters referred to in section 307(3). 309 Role of authorised psychiatrist in transferring forensic patient (1) As soon as practicable after making a direction under section 307 or receiving a direction under section 308, the authorised psychiatrist must ensure that reasonable steps are taken-- (a) to inform the forensic patient of the direction to take the forensic patient to another designated mental health service and to explain its purpose and effect; and (b) to notify the following persons in relation to the forensic patient of the direction-- (i) the nominated person; (ii) a guardian; (iii) a carer, if the authorised psychiatrist is satisfied that the direction will directly affect the carer and the care relationship; (iv) a parent, if the forensic patient is under the age of 16 years; (v) the Secretary to the Department of Human Services, if the forensic patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 234

Mental Health Act 2014 No. of 2014 Part 12--Forensic Patients s. 310 (c) to take the forensic patient to the receiving designated mental health service; and (d) to forward any documents relevant to the treatment of the forensic patient to the receiving designated mental health service. (2) As soon as practicable after a forensic patient is taken to the receiving designated mental health service, the authorised psychiatrist of that designated mental health service must ensure that reasonable steps are taken to notify the Secretary that the forensic patient has been received at that designated mental health service. 310 Application to Forensic Leave Panel for review of decision to take forensic patient to another designated mental health service (1) A forensic patient who is subject to a direction made under section 307 or 308 to be taken to another designated mental health service may apply to the Panel within 20 business days after the direction is made for a review of the direction. (2) The following persons may apply to the Panel for a review of a direction made under section 307 or 308 on behalf of a forensic patient referred to in subsection (1) within 20 days after the direction is made-- (a) any person, at the request of the forensic patient; (b) a guardian of the forensic patient; (c) a parent of the forensic patient, if the forensic patient is under the age of 16 years; (d) the Secretary to the Department of Human Services, if the forensic patient is the subject of a custody to Secretary order or a guardianship to Secretary order. 235

Mental Health Act 2014 No. of 2014 Part 12--Forensic Patients s. 310 (3) As soon as practicable after an application is made, the Panel must hear and determine the application. (4) On hearing an application under this section, the Panel must have regard to the matters referred to in section 307(3). (5) The Panel must-- (a) grant the application if the Panel is not satisfied that taking the forensic patient to another designated mental health service is necessary for the forensic patient's treatment; or (b) refuse to grant the application if the Panel is satisfied that taking the forensic patient to another designated mental health service is necessary for the forensic patient's treatment. (6) If the Panel grants the application and the forensic patient has been taken to another designated mental health service, the Panel must direct that the forensic patient be returned to the original designated mental health service. (7) If the Panel refuses to grant the application and the forensic patient has not been taken to another designated mental health service, the forensic patient must be taken to another designated mental health service. (8) Division 3 of Part 7 of, and Schedule 2 to, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 apply to an application under this section as if references in that Division and Schedule to the applicant for leave were references to the forensic patient subject to the direction to be taken to another designated mental health service. 236

Mental Health Act 2014 No. of 2014 Part 12--Forensic Patients s. 311 311 Security conditions (1) A forensic patient is subject to such security conditions as the authorised psychiatrist is satisfied are necessary to protect the health and safety of the forensic patient or the safety of any other person. (2) The security conditions apply while the person (in accordance with this Act) is-- (a) detained in a designated mental health service; or (b) absent on leave from a designated mental health service; or (c) taken to and from such places as may be necessary for the administration of this Act or any other Act. 312 Leave of absence for forensic patient A forensic patient may apply for and be granted leave of absence in accordance with Part 7 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. __________________ 237

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 313 PART 13--INTERSTATE APPLICATION OF MENTAL HEALTH PROVISIONS Division 1--General 313 Definitions In this Part-- corresponding law means a law that, under an Order in Council in force under section 314, is designated to be a corresponding law for the purposes of this Part; corresponding Order means an Order that, under an Order in Council in force under section 314, is designated to be a corresponding Order for the purposes of this Part; interstate authority, for an interstate mental health facility, means a person performing a similar or corresponding function to an authorised psychiatrist in relation to that facility; interstate mental health facility means a hospital or other facility to which a person in a participating State may be compulsorily admitted under a corresponding law in that State; participating State means a State or Territory-- (a) in which a corresponding law is in force; and (b) a Minister of which has made an agreement with the Minister under section 315. 238

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 314 314 Corresponding laws and Orders (1) The Governor in Council may, on the recommendation of the Minister, by Order in Council published in the Government Gazette, declare that a law of a State (other than this State) or of a Territory is a corresponding law for the purposes of this Part. (2) An Order in Council under subsection (1) in respect of a law of another State or Territory may include a declaration that an Order under that law that is substantially similar to an Assessment Order, a Temporary Treatment Order or a Treatment Order is a corresponding Order for the purposes of this Part. 315 Ministerial agreements The Minister may make an agreement with a Minister responsible for administering a corresponding law about any matter in connection with the administration of this Part or a corresponding law. 316 Victorian officers may exercise powers under corresponding laws Subject to the provisions of any agreement under section 315, the following persons may exercise any power conferred on them by or under a corresponding law or an agreement under that section-- (a) an authorised psychiatrist; (b) the chief psychiatrist; (c) an authorised person. 239

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 317 317 Interstate officers may perform functions or exercise powers in Victoria A person who is authorised to perform functions or exercise powers under a corresponding Order may perform those functions or exercise those powers in this State. Division 2--Operation of Victorian Orders interstate and corresponding orders in Victoria 318 Taking person from Victoria to interstate mental health facility for assessment (1) A person who is subject to an Assessment Order may be taken to an interstate mental health facility for assessment if-- (a) the interstate mental health facility is the most appropriate facility in the circumstances; and (b) this course of action is permitted by or under a corresponding law. (2) A person may be taken to an interstate mental health facility under subsection (1) by-- (a) an authorised person; or (b) a person authorised to do so by or under a corresponding law. 319 Taking person from interstate to Victoria for assessment A person who may be taken to, and detained in, an interstate mental health facility under a corresponding law in a participating State may instead be taken to a registered medical practitioner or mental health practitioner in this State and examined by the practitioner to determine whether the criteria for an Assessment Order specified in section 29 apply to the person. 240

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 320 320 Transfer of responsibility for treatment of person to interstate mental health facility--with person's consent (1) An authorised psychiatrist or the chief psychiatrist may direct that responsibility for treatment of a person who is subject to a Community Temporary Treatment Order or a Community Treatment Order be transferred to an interstate mental health facility if-- (a) the authorised psychiatrist or chief psychiatrist is satisfied that this is necessary for the person's treatment; and (b) the person consents to the transfer of responsibility; and (c) the transfer of responsibility is permitted by or under a corresponding law; and (d) the interstate authority for the interstate mental health facility agrees to the transfer of responsibility for treatment. (2) A person in relation to whom responsibility for treatment is transferred under this section ceases to be subject to a Community Temporary Treatment Order or a Community Treatment Order on becoming subject to a corresponding Order. (3) The authorised psychiatrist or chief psychiatrist must ensure that any documents relevant to the person in relation to whom responsibility for treatment is transferred under this section are forwarded to the interstate mental health facility. 241

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 321 321 Transfer of responsibility for treatment of person to interstate mental health facility--without person's consent (1) An authorised psychiatrist or the chief psychiatrist may make an application to the Tribunal for an interstate transfer of treatment order to transfer responsibility for treatment of a person who is subject to a Community Temporary Treatment Order or a Community Treatment Order to an interstate mental health facility if-- (a) the authorised psychiatrist or chief psychiatrist is satisfied that the transfer of the responsibility for treatment is necessary for the person's treatment; and (b) the person does not have capacity to give informed consent or does not consent to the transfer of responsibility; and (c) the transfer of responsibility is permitted by or under a corresponding law; and (d) the interstate authority for the interstate mental health facility agrees to the transfer of responsibility for treatment. (2) The Tribunal must hear and determine an application made under subsection (1) as soon as practicable. (3) In determining an application made under subsection (1), the Tribunal must, to the extent that reasonable in the circumstances, have regard to-- (a) the person's views and preferences about the proposed transfer and the reasons for those views and preferences, including the recovery outcomes that the person would like to achieve; and 242

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 321 (b) the person's views and preferences expressed in his or her advance statement; and (c) the views of the person's nominated person; and (d) the views of a guardian of the person; and (e) the views of a carer of the person, if the Tribunal is satisfied that the transfer will directly affect the carer and the care relationship; and (f) the views of a parent of the person, if the person is under the age of 16 years; and (g) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. (4) The Tribunal must-- (a) grant the application if the Tribunal is satisfied that-- (i) the transfer of responsibility is necessary for the person's treatment; and (ii) the person does not have capacity to give informed consent or does not consent to the transfer; and (iii) the transfer is permitted by or under a corresponding law; and (iv) the interstate authority for the interstate mental health facility agrees to the transfer; or (b) refuse to grant the application if the Tribunal is not satisfied as to the matters referred to in paragraph (a). 243

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 322 (5) A person in relation to whom responsibility for treatment is transferred under this section ceases to be subject to a Community Temporary Treatment Order or Community Treatment Order on becoming subject to a corresponding Order. (6) The authorised psychiatrist or the chief psychiatrist must ensure that any documents relevant to the person in relation to whom responsibility for treatment is transferred under this section are forwarded to the interstate mental health facility. 322 Taking person to interstate mental health facility-- with person's consent (1) An authorised psychiatrist or the chief psychiatrist may direct that a person who is subject to an Inpatient Temporary Treatment Order or an Inpatient Treatment Order be taken to an interstate mental health facility if-- (a) the authorised psychiatrist or chief psychiatrist is satisfied that this is necessary for the person's treatment; and (b) the person consents to being taken to the interstate mental health facility; and (c) taking the person to the interstate mental health facility is permitted by or under a corresponding law; and (d) the interstate authority for the interstate mental health facility agrees to receive the person. (2) A person who is taken to an interstate mental health facility under this section ceases to be subject to an Inpatient Temporary Treatment Order or an Inpatient Treatment Order-- (a) on admission to the interstate mental health facility; or 244

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 323 (b) on becoming subject to a corresponding Order. (3) A person who is taken to an interstate mental health facility under this section may be taken to the interstate mental health facility by-- (a) an authorised person; or (b) a person who, under the corresponding law, is authorised to take the person to the interstate mental health facility. (4) The authorised psychiatrist or the chief psychiatrist must ensure that any documents relevant to the person who is taken to the interstate mental health facility under this section are forwarded to the interstate mental health facility. 323 Taking person to interstate mental health facility-- without person's consent (1) An authorised psychiatrist or the chief psychiatrist may make an application to the Tribunal for an interstate transfer order for a person who is subject to an Inpatient Temporary Treatment Order or an Inpatient Treatment Order to be taken to an interstate mental health facility if-- (a) the authorised psychiatrist or chief psychiatrist is satisfied that taking the person is necessary for the person's treatment; and (b) the person does not have capacity to give informed consent or does not consent to being taken to the interstate mental health facility; and (c) taking the person to the interstate mental health facility is permitted by or under a corresponding law; and 245

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 323 (d) the interstate authority for the interstate mental health facility agrees to admit the person. (2) The Tribunal must hear and determine an application made under subsection (1) as soon as practicable. (3) In determining an application made under subsection (1), the Tribunal must, to the extent that reasonable in the circumstances, have regard to-- (a) the person's views and preferences about being taken to an interstate mental health facility and the reasons for those views and preferences, including the recovery outcomes that the person would like to achieve; and (b) the person's views and preferences expressed in his or her advance statement; and (c) the views of the person's nominated person; and (d) the views of a guardian of the person; and (e) the views of a carer of the person, if the authorised psychiatrist or chief psychiatrist (as the case may be) is satisfied that the transfer will directly affect the carer and the care relationship; and (f) the views of a parent of the person, if the person is under the age of 16 years; and (g) the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. 246

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 323 (4) The Tribunal must-- (a) grant the application if the Tribunal is satisfied that-- (i) taking the person to an interstate mental health facility is necessary for the person's treatment; and (ii) the person does not have capacity to give informed consent or does not consent to being taken; and (iii) taking the person to the interstate mental health facility is permitted by or under a corresponding law; and (iv) the interstate authority for the interstate mental health facility agrees to admit the person; or (b) refuse to grant the application if the Tribunal is not satisfied as to the matters referred to in paragraph (a). (5) A person who is taken to an interstate mental health facility under this section ceases to be subject to an Inpatient Temporary Treatment Order or an Inpatient Treatment Order-- (a) on admission to the interstate mental health facility; or (b) on becoming subject to a corresponding Order. (6) A person may be taken to an interstate mental health facility under this section by-- (a) an authorised person; or (b) a person who, under the corresponding law, is authorised to take the person to the interstate mental health facility. 247

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 324 (7) The authorised psychiatrist or the chief psychiatrist must ensure that any documents relevant to the person who is taken to the interstate mental health facility under this section are forwarded to the interstate mental health facility. 324 Person subject to interstate compulsory order taken to Victoria to determine suitability for Temporary Treatment Order (1) A person who is compulsorily detained in an interstate mental health facility under a corresponding law or who is subject to a corresponding Order may, if approved by the authorised psychiatrist of a designated mental health service, be-- (a) taken to this State in accordance with the corresponding law; and (b) examined by the authorised psychiatrist at a designated mental health service or in the community as soon as practicable after the person enters this State to determine whether the person should be made subject to a Temporary Treatment Order. (2) A person referred to in subsection (1) may be taken to an authorised psychiatrist by-- (a) an authorised person; or (b) a person who is authorised under the corresponding law to take the person to an authorised psychiatrist. (3) A person who is taken to this State under this section ceases to be subject to a corresponding Order when the person is made subject to a Temporary Treatment Order. 248

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 325 325 Interstate application of Victorian Orders A Community Temporary Treatment Order or a Community Treatment Order-- (a) may be made in respect of a person who lives in a participating State; and (b) may provide for the person living in a participating State to receive treatment either-- (i) in that State; or (ii) both in that State and in Victoria; and (c) may provide for the person to receive treatment in accordance with the Community Temporary Treatment Order or Community Treatment Order from any person who is authorised under this Act to perform functions or exercise powers in relation to a Community Temporary Treatment Order or Community Treatment Order. Division 3--Persons absent without leave 326 Apprehension of persons absent without leave from interstate facilities (1) A person who is absent without leave or other lawful authority from an interstate mental health facility in a participating State may be apprehended in this State if-- (a) the person may be apprehended under a corresponding law in the participating State; or (b) a warrant or other document is issued under the corresponding law in the participating State that authorises the apprehension of the person. 249

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 326 (2) The power to apprehend a person under subsection (1) may only be exercised by-- (a) an authorised person; or (b) a person who is authorised under the corresponding law to apprehend the person. (3) A person who is apprehended under subsection (1) must, as soon as it is reasonably practicable to do so-- (a) be informed why he or she has been apprehended; and (b) be taken to an interstate mental health facility in the participating State. (4) Pending his or her return to the participating State under subsection (3), a person may be taken to a designated mental health service for examination by the authorised psychiatrist to determine whether the person requires treatment before being returned. (5) If, under subsection (4), the authorised psychiatrist determines that the person requires treatment before being returned to the participating State, the person may be detained and treated in the designated mental health service as if the person were subject to a Temporary Treatment Order until the person is returned. (6) For the purposes of this section, a person is taken to be absent without lawful authority from an interstate mental health facility if the person did not return to the facility when required to do so under a corresponding law. 250

Mental Health Act 2014 No. of 2014 Part 13--Interstate Application of Mental Health Provisions s. 327 327 Persons absent without leave from designated mental health service A person who is absent without leave from a designated mental health service and who is apprehended in a participating State may be taken back to the designated mental health service by-- (a) a person who is authorised under a corresponding law in that State to take the person to an interstate mental health facility; or (b) an authorised person. __________________ 251

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 328 PART 14--VICTORIAN INSTITUTE OF FORENSIC MENTAL HEALTH Division 1--Preliminary 328 Victorian Institute of Forensic Mental Health (1) The Victorian Institute of Forensic Mental Health established under section 117B of the Mental Health Act 1986 (as in force immediately before 1 July 2014) is continued under this Act. (2) The Institute-- (a) is a body corporate with perpetual succession; and (b) has an official seal; and (c) may sue and be sued; and (d) may acquire, hold and dispose of real and personal property; and (e) may do and suffer all acts and things that a body corporate may by law do and suffer. (3) The seal of the Institute must be kept in custody as directed by the Institute and must only be used as authorised by the Institute. (4) All courts must take judicial notice of the seal of the Institute affixed to a document and, until the contrary is proved, must presume that it was duly affixed. 329 Trading name Despite anything to the contrary in the Business Names Registration Act 2011 of the Commonwealth or any other Act or law, the Institute may carry on business under the name "Forensicare". 252

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 330 330 Functions of the Institute The Institute has the following functions-- (a) to provide, promote and assist in the provision of forensic mental health and related services in Victoria; (b) to provide clinical assessment services to courts, the Adult Parole Board and other relevant government agencies; (c) to provide inpatient and community forensic mental health services and specialist assessment and treatment services; (d) to provide community education in relation to the services provided by the Institute and forensic mental health generally; (e) to provide, promote and assist in undergraduate and postgraduate education and training of professionals in the field of forensic mental health; (f) to provide, promote and assist in the teaching of, and training in, clinical forensic mental health within medical, legal, general health and other education programs; (g) to conduct research in the fields of forensic mental health, forensic health, forensic behavioural science and associated fields; (h) to promote continuous improvements and innovations in the provision of forensic mental health and related services in Victoria; (i) to perform any other functions conferred on the Institute under this Act or any other Act. 253

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 331 331 Powers of the Institute (1) The Institute has power to do all things that are necessary or convenient to be done for, or in connection with, or as incidental to, the performance of its functions. (2) Without limiting the generality of subsection (1), the Institute may-- (a) enter into arrangements for services provided by the Institute; and (b) impose fees and charges for the provision of services; and (c) seek and accept funds from any person for the purposes of performing its functions. (3) In performing its functions and exercising its powers, the Institute must have regard to-- (a) the needs and views of-- (i) persons receiving mental health services and related services provided by the Institute; and (ii) the communities served by the Institute; and (iii) providers of mental health services and related services; and (iv) other relevant parties; and (b) the need to ensure that the Institute uses its resources in an effective and efficient manner. 254

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 332 Division 2--Board of directors 332 Board of directors (1) The Institute must have a board of directors. (2) The board of directors-- (a) is responsible for setting the strategic direction of the Institute; and (b) is responsible for establishing a governance framework for the Institute and monitoring compliance with the governance framework; and (c) may exercise the powers of the Institute. 333 Constitution of board of directors The board of directors consists of the following persons-- (a) a nominee of the Attorney-General; (b) a nominee of the Minister administering the Corrections Act 1986; (c) at least 4 other members, but not more than 7, of whom-- (i) at least one is able to reflect the perspective of persons receiving mental health services; and (ii) at least one has knowledge of, or experience in, accountancy or financial management. 334 Appointment of directors (1) The directors are to be appointed by the Governor in Council on the recommendation of the Minister. (2) The Governor in Council, on the recommendation of the Minister, may appoint one of the directors to be the chairperson of the board. 255

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 335 335 Terms and conditions of appointment of directors (1) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director in respect of the office of director. (2) A director-- (a) holds office for the term, not exceeding 3 years, specified in the instrument of appointment and is eligible for reappointment; and (b) must not serve on the board of directors for more than 3 terms; and (c) is entitled to be paid such remuneration and allowances as are fixed by the Governor in Council from time to time. 336 Resignation and removal (1) A director may resign in writing signed by that person and delivered to the Governor in Council. (2) The Governor in Council, on the recommendation of the Minister, may remove a director from office. (3) The Minister must recommend the removal of a person from the office of director if the Minister is satisfied that the person-- (a) is unable to fulfil the role of director; or (b) has been convicted of an offence, the commission of which, in the opinion of the Minister, makes the person unsuitable to be a director; or (c) has been absent, without leave of the board of directors, from all meetings of the board of directors held during a period of 6 months; or (d) is an insolvent under administration. 256

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 337 337 Protection from liability (1) A director of the board is not personally liable for anything done or omitted to be done in good faith-- (a) in the exercise of a power or the discharge of a duty under this Act; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act. (2) Any liability resulting from an act or omission that would but for subsection (1) attach to a director of the board attaches instead to the Institute. 338 Validity of acts or decisions An act or a decision of the board of directors is not invalid only because of-- (a) a vacancy in the membership of the board of directors, including a vacancy arising from the failure to appoint a director; or (b) a defect or irregularity in, or in connection with, the appointment of a director. 339 Procedure of board of directors The procedure of the board of directors is at the discretion of the board. Division 3--General 340 Chief executive officer (1) The board of directors must-- (a) appoint a chief executive officer of the Institute; and 257

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 341 (b) determine, subject to the Secretary's approval, the chief executive's remuneration and the terms and conditions of his or her appointment. (2) The chief executive officer is subject to the direction of the board of directors in controlling and managing the Institute. (3) The functions of the chief executive officer are-- (a) to prepare material for consideration by the board of directors, including strategic plans and statements of priorities; and (b) to ensure that the Institute uses its resources effectively and efficiently; and (c) to implement service development and planning; and (d) any other functions specified by the board of directors. 341 Institute may employ persons (1) The Institute may employ any other staff necessary for the performance of its functions. (2) The terms and conditions of employment of staff of the Institute are as determined by the Institute. (3) An employee of the Institute who, immediately before that employment, was an employee in the public service employed exclusively in connection with the functions of the forensic psychiatry service in the Department of Health continues to be an employee in the public service while an employee of the Institute for the purposes of long service leave. 258

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 342 (4) An employee of the Institute who, immediately before employment, was an officer within the meaning of the State Superannuation Act 1988 continues, subject to that Act, to be such an officer while an employee of the Institute. 342 Minister may issue directions (1) The Minister may issue a written direction to the Institute on any matter in relation to the Institute that the Minister is satisfied is necessary. (2) As soon as practicable after giving a direction to the Institute, the Minister must cause the direction to be published in the Government Gazette. (3) The Institute must comply with a direction given under this section. (4) Despite subsection (3), an act or a decision of the Institute or the board of directors is not invalid only because of a failure to comply with a direction. 343 Strategic plan (1) At the direction of the Minister, the board of directors must prepare and submit to the Minister a strategic plan for the operation of the Institute. (2) A strategic plan must be prepared at the frequency determined by the Minister and in accordance with guidelines determined by the Minister. (3) The Minister must-- (a) approve the strategic plan as submitted or subject to amendments; or (b) refuse to approve the strategic plan. (4) The board of directors must advise the Minister if it intends to exercise its functions in a manner that is inconsistent with the most recent approved strategic plan. 259

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 344 344 Statement of priorities (1) The board of directors must prepare, in consultation with the Secretary, a statement of priorities for the Institute for each financial year in accordance with subsection (4). (2) The board of directors must give a copy of the proposed statement of priorities to the Minister on or before 1 October in each year for approval. (3) If the board of directors and the Minister do not agree on a statement of priorities on or before 1 October, the Minister may make a statement of priorities for the relevant financial year in accordance with subsection (4). (4) A proposed statement of priorities must specify-- (a) the services to be provided by the Institute and the funds to be provided to the Institute; and (b) the objectives, priorities and key performance outcomes to be met by the Institute; and (c) the performance indicators, targets or other measures against which the Institute's performance is to be assessed and monitored; and (d) how and when the Institute must report to the Minister and the Secretary on its performance in relation to the specified objectives, priorities and key performance outcomes; and (e) such other matters as, from time to time, are-- (i) agreed by the Minister and the board of directors; or (ii) determined by the Minister. 260

Mental Health Act 2014 No. of 2014 Part 14--Victorian Institute of Forensic Mental Health s. 345 (5) A statement of priorities may be varied at any time if the board of directors and the Minister so agree. (6) If the board of directors and the Minister fail to agree to a proposed variation of a statement of priorities within 28 days after the variation is proposed, the Minister may-- (a) vary the statement of priorities; or (b) decline to vary the statement of priorities. 345 Board of directors to give notice of significant events The board of directors must notify the Minister and the Secretary as soon as practicable about any issues of public concern or risk that may affect the Institute. __________________ 261

Mental Health Act 2014 No. of 2014 Part 15--General s. 346 PART 15--GENERAL Division 1--Disclosure of health information 346 Disclosure of health information (1) The following must not disclose health information about a consumer-- (a) the mental health service provider; (b) any member of staff or former member of staff of the mental health service provider; (c) any person who is or was a contractor of the mental health service provider; (d) any volunteer or former volunteer at the mental health service provider; (e) any member of the board or former member of the board of the mental health service provider. Penalty: 60 penalty units. (2) Subsection (1) does not apply in the following circumstances-- (a) the person to whom the health information relates consents to its disclosure; (b) the person to whom the health information relates is deceased and the senior available next of kin of the person consents to its disclosure; (c) the disclosure is reasonably necessary for the mental health service provider to perform functions or exercise powers under this or any other Act; (d) the disclosure is permitted by an Act other than the Health Records Act 2001; (e) the disclosure is permitted by Health Privacy Principle 2.1, 2.2(a), (f), (g), (h) or (k) or 2.5; 262

Mental Health Act 2014 No. of 2014 Part 15--General s. 346 (f) the disclosure is required by another mental health service provider or a health service provider (within the meaning of section 3 of the Health Records Act 2001) to provide health services (within the meaning of section 3 of the Health Records Act 2001) to the person to whom the health information relates; (g) the disclosure is made in general terms to a friend, family member or carer of the person to whom the health information relates and the disclosure is not contrary to the views and preferences expressed by the person that the health information must not be disclosed to that friend, family member or carer; (h) the person to whom the health information relates is a patient and-- (i) the disclosure is reasonably required by a carer of the patient to determine the nature and scope of the care to be provided to the patient and to make the necessary arrangements in preparation for that role or to provide care to the patient; and (ii) regard has been had to the patient's views and preferences, including those expressed in any advance statement that the patient may have prepared; (i) the disclosure is made to a psychiatrist giving a second psychiatric opinion for the purposes of Division 4 of Part 5 of this Act and the disclosure includes-- (i) providing access to the clinical records of a patient; or 263

Mental Health Act 2014 No. of 2014 Part 15--General s. 346 (ii) discussing the treatment of a patient with the psychiatrist giving a second psychiatric opinion; (j) the disclosure is made to a parent of the person to whom the health information relates and the person is under the age of 16 years; (k) the disclosure is made to the Secretary to the Department of Human Services and the person to whom the health information relates is the subject of a custody to Secretary order or a guardianship to Secretary order; (l) the disclosure is reasonably required in connection with the performance of a duty or the exercise of a power by the Minister, the Secretary, the Commissioner, the chief psychiatrist or an authorised officer under this Act or the regulations; (m) the disclosure is required in connection with a proceeding before the Tribunal, VCAT or the Panel; (n) the disclosure is required by a court in connection with a proceeding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; (o) the disclosure is made to a guardian of the person to whom the health information relates and the disclosure is reasonably required in connection with the performance of a duty or the exercise of a power by the guardian; (p) the disclosure is made to the agent of the person to whom the health information relates and the disclosure is reasonably required in connection with the performance 264

Mental Health Act 2014 No. of 2014 Part 15--General s. 347 of a duty or the exercise of a power by the agent in accordance with an appointment under the Medical Treatment Act 1988; (q) the disclosure is required in connection with a notification, claim or possible claim to a person or body providing insurance or indemnity (including discretionary indemnity) for any possible liability of the mental health service provider arising out of the provision of mental health services. 347 Information from electronic health information system (1) A person who is employed or engaged by a mental health service provider may enter another person's health information into an electronic health information system. (2) A person must not collect or use, or attempt to collect or use, health information from an electronic health information system unless the collection or use of the information is reasonably required by-- (a) a mental health service provider for the purposes of providing mental health services to the person to whom that information relates; or (b) the chief psychiatrist or the Secretary to perform his or her functions or exercise his or her powers under this Act; or (c) the Tribunal for the purposes of performing its functions or exercising its powers under this Act; or (d) the Panel for the purposes of performing its functions or exercising its powers under this Act or the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. 265

Mental Health Act 2014 No. of 2014 Part 15--General s. 348 (3) In this section-- electronic health information system means an electronic data collection system by which health information is shared between mental health service providers for the purpose of enabling continuity in the provision of mental health services to the persons to whom the health information relates. Division 2--Notification of reportable deaths 348 Chief psychiatrist to be notified of reportable deaths (1) The person in charge of a mental health service provider must ensure that the chief psychiatrist is notified in writing of the death of any person receiving mental health services from the mental health service provider that is a reportable death within the meaning of section 4 of the Coroners Act 2008 as soon as practicable after the person in charge becomes aware of the death. (2) A notice under subsection (1) must specify-- (a) the name of the deceased; and (b) the date of the death; and (c) any other information required by the chief psychiatrist. 349 Notification of death of security patient or forensic patient (1) An authorised psychiatrist must by notice in writing advise whoever of the following is relevant in the circumstances of the death of any security patient who receives treatment from the designated mental health service and specify the name of the security patient and the date of the death-- 266

Mental Health Act 2014 No. of 2014 Part 15--General s. 350 (a) the Secretary to the Department of Justice; (b) the Secretary to the Department of Human Services; (c) the Chief Commissioner of Police; (2) An authorised psychiatrist must advise the Secretary by notice in writing of the death of any forensic patient who receives treatment from the designated mental health service and specify the name of the forensic patient and the date of the death. Division 3--Powers of transfer, apprehension, entry, search and seizure 350 Bodily restraint and sedation may be used when taking person (1) Despite anything to the contrary in Part 6, if a person is required under this Act to be taken to or from a designated mental health service or any other place-- (a) an authorised person may use bodily restraint on the person if-- (i) all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable; and (ii) the bodily restraint to be used is necessary to prevent serious and imminent harm to the person or to another person; and (b) a registered medical practitioner may administer sedation to the person or direct a registered nurse or ambulance paramedic to administer sedation to the person if-- 267

Mental Health Act 2014 No. of 2014 Part 15--General s. 351 (i) all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable; and (ii) the sedation to be administered is necessary to prevent serious and imminent harm to the person or to another person. (2) Subsection (1)(b) does not limit the power of a registered nurse or ambulance paramedic to administer sedation within the ordinary scope of his or her practice. 351 Apprehension of person by police (1) A police officer may apprehend a person if the police officer is satisfied that-- (a) the person appears to have mental illness; and (b) because of the person's apparent mental illness, the person needs to be apprehended to prevent serious and imminent harm to the person or to another person. (2) A police officer is not required for the purposes of subsection (1) to exercise any clinical judgement as to whether the person has mental illness. (3) A police officer exercising the powers conferred by this section may be accompanied by a registered medical practitioner or a mental health practitioner. (4) A person apprehended under this section is subject to the custody of the police officer until released from that custody in accordance with this section. (5) As soon as practicable after apprehending a person under this section, a police officer must arrange for the person to be taken to-- 268

Mental Health Act 2014 No. of 2014 Part 15--General s. 351 (a) a registered medical practitioner or mental health practitioner; or (b) a public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988 to enable a registered medical practitioner or mental health practitioner-- to examine the person in accordance with section 30 to determine whether to make an Assessment Order. (6) A person apprehended under this section is released from the custody of the police officer when-- (a) if subsection (5)(a) applies, the person is made subject to an Assessment Order; or (b) if subsection (5)(b) applies, the person enters into the care of the public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988. (7) For the purposes of apprehending a person under this section, a police officer has all the powers necessary to do so. (8) Nothing in this section limits-- (a) any other power of a registered medical practitioner or mental health practitioner in relation to a person apprehended under this section; or (b) any other power of a police officer in relation to a person apprehended under this section. 269

Mental Health Act 2014 No. of 2014 Part 15--General s. 352 352 Apprehension of person absent without leave (1) This section applies to a person who is absent without leave and is-- (a) subject to-- (i) an Inpatient Assessment Order; or (ii) an Inpatient Temporary Treatment Order; or (iii) an Inpatient Treatment Order; or (iv) an Inpatient Court Assessment Order; or (b) a security patient; or (c) a forensic patient. (2) For the purposes of this section, a person to whom this section applies is absent without leave if the person is absent from a designated mental health service without a grant of leave of absence. (3) If a person to whom this section applies is absent without leave, the authorised psychiatrist must take reasonable steps to notify the following persons in relation to that person of the person's absence-- (a) the nominated person; (b) a guardian; (c) a carer, if the authorised psychiatrist is satisfied that the person's absence will directly affect the carer and the care relationship; (d) a parent, if the person is under the age of 16 years; 270

Mental Health Act 2014 No. of 2014 Part 15--General s. 353 (e) the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order. (4) The authorised psychiatrist may arrange for a person to whom this section applies to be apprehended and taken to a designated mental health service. 353 Power to enter premises, apprehend and take person to a designated mental health service (1) This section applies if a provision of this Act provides for a person to be taken to or from a designated mental health service or any other place. (2) For the purposes of this section, an authorised person may-- (a) enter any premises at which the authorised person has reasonable grounds for being satisfied that the person may be found; and (b) apprehend the person for the purpose of the person being taken to a designated mental health service. (3) Before an authorised person enters any premises under this section, the authorised person must-- (a) announce to any person at or in the premises that the authorised person is authorised to enter the premises; and (b) state the basis of the authority to enter; and (c) give any person at or in the premises an opportunity to permit the authorised person to enter the premises. (4) An authorised person may use reasonable force to gain entry to the premises if the authorised person is not permitted entry under subsection (3)(c). 271

Mental Health Act 2014 No. of 2014 Part 15--General s. 354 (5) On gaining entry into the premises, an authorised person must, to the extent that it is reasonable in the circumstances-- (a) identify himself or herself to the person who is to be apprehended; and (b) explain to the person why he or she is to be apprehended; and (c) give the person the details of the place to which he or she will be taken. 354 Search powers (1) This section applies to a person who is required under this Act to be taken to or from a designated health service or any other place. (2) An authorised person may search a person to whom this section applies before the person is taken to or from a designated mental health service or any other place if the authorised person reasonably suspects that the person is carrying any thing that-- (a) presents a danger to the health and safety of the person or another person; or (b) could be used to assist the person to escape. (3) Before searching a person under subsection (2), the authorised person must, to the extent reasonable in the circumstances, explain to the person the purpose of the search. (4) In this section-- search means a search of a person or of things in the possession or under the control of a person that may include-- (a) quickly running the hands over the person's outer clothing or passing an electronic metal detection device over 272

Mental Health Act 2014 No. of 2014 Part 15--General s. 355 or in close proximity to the person's outer clothing; and (b) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes and hat; and (c) an examination of those items of clothing; and (d) requiring the person to empty his or her pockets or allowing his or her pockets to be searched. 355 Preservation of privacy and dignity during search (1) An authorised person who searches a person under section 354 must, as far as is reasonably practicable in the circumstances, comply with this section. (2) The authorised person must inform the person to be searched of the following matters-- (a) whether the person will be required to remove clothing during the search; (b) why it is necessary to remove the person's clothing. (3) The authorised person must ask for the person's cooperation. (4) The authorised person must conduct the search-- (a) in a way that provides reasonable privacy for the person searched; and (b) as quickly as is reasonably practicable; and (c) if the person being searched is of or under the age of 16 years, in the presence of a parent of the person or, if it is not reasonably practicable for a parent to be present, another adult. 273

Mental Health Act 2014 No. of 2014 Part 15--General s. 356 (5) The authorised person must conduct the least invasive kind of search practicable in the circumstances. (6) A search that involves running the hands over the person's outer clothing must be conducted by-- (a) an authorised person of the same sex as the person searched; or (b) a person of the same sex as the person searched under the direction of the authorised person. 356 Power to seize and detain things (1) An authorised person may seize and detain a thing found as a result of a search conducted under section 354 if the authorised person is reasonably satisfied that the thing-- (a) presents a danger to the health and safety of the person or another person; or (b) could be used to assist the person to escape. (2) If a thing is seized and detained under subsection (1), the authorised person must make a written record that-- (a) specifies the thing seized and detained; and (b) specifies the name of the person from whom the thing was seized and detained; and (c) specifies the date on which the thing was seized and detained; and (d) includes any other prescribed details. (3) The authorised person must securely store any thing seized under subsection (1) unless the thing is described in subsection (4). 274

Mental Health Act 2014 No. of 2014 Part 15--General s. 357 (4) The authorised person must give a thing seized under subsection (1) to a police officer as soon as practicable after the thing is seized if-- (a) the thing is a prohibited weapon, a controlled weapon or a dangerous article within the meaning of the Control of Weapons Act 1990; or (b) the thing is a drug of dependence or a substance, material, document or equipment used for the purpose of trafficking in a drug of dependence within meaning of the Drugs, Poisons and Controlled Substances Act 1981; or (c) the thing is a firearm within the meaning of the Firearms Act 1996; or (d) the authorised person has reason to believe the thing would present a danger to the health and safety of the person or another person if the thing were returned to the person. (5) The authorised person must take reasonable steps to return any thing stored under subsection (3) to the person from whom it was seized when the reason for the seizure of the thing no longer applies. Division 4--General provisions 357 Payment for examination If a registered medical practitioner has performed an examination for the purposes of this Act and is not otherwise entitled to receive payment for the provision of medical services, the medical practitioner may apply to the Secretary for payment at the prescribed rate. 275

Mental Health Act 2014 No. of 2014 Part 15--General s. 358 358 Offence to give false or misleading information (1) A person must not-- (a) give information, prepare a document or make a statement required to be given or made under this Act that the person believes to be false or misleading in any material particular; or (b) produce a document under this Act that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units. (2) In a proceeding for an offence against subsection (1) it is a defence to the charge for the accused to prove that, at the time at which the offence is alleged to have been committed, the accused believed on reasonable grounds that the information, document or statement was true or was not misleading. 359 Destroying or damaging records A person must not, without lawful authority, destroy or damage any record required to be kept in accordance with this Act or the regulations. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units. 276

Mental Health Act 2014 No. of 2014 Part 15--General s. 360 360 Protection against self-incrimination A natural person may refuse or fail to give information or do any other thing that the person is required to do by or under this Act or the regulations if giving the information or doing the other thing would tend to incriminate the person. 361 Validity of order if there is an error (1) The validity of an order made under this Act (other than an order made by the Tribunal) or any other document made or prepared under this Act is not affected by an error in it unless-- (a) the error relates to the grounds on which the order or document was made and proper grounds for making the order or document do not exist; or (b) as a result of the error, the order or document does not comply with a mandatory requirement of this Act relating to the making of the order or document. (2) If an error in an order or other document does not affect the validity of the order or document, the person who made the order or document may correct the error. 362 Power to bring proceedings (1) The Secretary may bring proceedings for an offence under this Act (other than under Part 8 or 10) or the regulations. (2) The Tribunal may bring proceedings for an offence under Part 8. (3) The Commissioner may bring proceedings for an offence under Part 10. (4) A police officer may bring proceedings for an offence under this Act or the regulations. 277

Mental Health Act 2014 No. of 2014 Part 15--General s. 363 363 Defect in appointment or delegation (1) An appointment or delegation of power made under this Act (other than an appointment or delegation made under Part 8) is not invalid only because of a defect or irregularity in the form or process of the appointment or delegation. (2) An act or a decision of a person under this Act is not invalid only because of any defect or irregularity in the form or process of his or her appointment. 364 Conflict of interest A person must not exercise powers or perform functions or duties under this Act in respect of another person if the person would have a conflict of interest in exercising powers or performing functions or duties in respect of that other person. 365 Service of documents A notice or other document that is required to be given under this Act is taken to be given to-- (a) a natural person if it is-- (i) given to the person; or (ii) left at, or sent by post to, the person's last known postal or residential address or place of employment; or (iii) emailed to the person's email address; and (b) a body corporate if it is-- (i) left at, or sent by post to, the principal or registered office of the body corporate or its principal place of business; or 278

Mental Health Act 2014 No. of 2014 Part 15--General s. 366 (ii) faxed to the fax number of the body corporate; or (iii) emailed to the email address of the body corporate. Division 5--Codes of Practice 366 Purpose of Codes of Practice (1) The purpose of a Code of Practice is to provide practical guidance to any person or body exercising powers or performing functions and duties under this Act to promote best practice. (2) A Code of Practice cannot-- (a) impose a duty on any person; or (b) create an enforceable legal right; or (c) impose any liability or penalty. 367 Making of Codes of Practice (1) The Secretary may make a Code of Practice. (2) Before making a Code of Practice the Secretary may consult one or more of the following-- (a) the Commissioner; (b) the chief psychiatrist; (c) the President of the Tribunal; (d) any designated mental health service; (e) any carer group; (f) any consumer advocacy group; (g) any other person that the Secretary considers should be consulted. 279

Mental Health Act 2014 No. of 2014 Part 15--General s. 368 368 Commencement and availability of Codes of Practice (1) As soon as practicable after making a Code of Practice, the Secretary must publish on the Department of Health's Internet site-- (a) a notice that states-- (i) the date of commencement of the Code of Practice; and (ii) the place where copies of the Code of Practice may be obtained; and (b) the Code of Practice. (2) The date of commencement of a Code of Practice must be the date that the notice under subsection (1)(a) is published on the Department of Health's Internet site or a later date specified in the notice. 369 Power to apply, adopt or incorporate A Code of Practice may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether-- (a) wholly or partially or as amended by the Code of Practice; or (b) as formulated, issued, prescribed or published at the time that the Code of Practice is made or at any time before then; or (c) as formulated, issued, prescribed or published from time to time. 280

Mental Health Act 2014 No. of 2014 Part 15--General s. 370 Division 6--Regulations 370 Regulations (1) The Governor in Council may make regulations for or with respect to the following matters-- (a) prescribing forms to be used for the purposes of this Act; (b) prescribing fees for the purposes of this Act; (c) prescribing the keeping and the form of any records or other documents as may be necessary for the administration of this Act; (d) the collection, provision, transfer, disclosure or use of information for the purposes of this Act; (e) prescribing persons or classes of persons necessary to be prescribed for the purposes of this Act; (f) prescribing the remuneration and allowances of different classes of member of the Tribunal expressed as a percentage of the remuneration of different classes of member of VCAT fixed under the Victorian Civil and Administrative Tribunal Act 1998 from time to time; (g) generally prescribing any other matter or thing required or permitted by this Act to be prescribed to give effect to this Act. (2) Regulations made under this Act-- (a) may be of limited or general application; and (b) may differ according to differences in time, place or circumstance; and (c) may provide in a specified case or class of case for the exemption of persons or things from any of the provisions of the regulations, 281

Mental Health Act 2014 No. of 2014 Part 15--General s. 371 whether unconditionally or on specified conditions, and either wholly or to such extent as is specified; and (d) in the case of a regulation made under subsection (1)(f), may provide for different classes of member whether or not those classes are the same as the classes referred to in Part 8; and (e) may confer powers or impose duties in connection with the regulations on any specified person or specified class of persons; and (f) may apply, adopt or incorporate, with or without modification, any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person-- (i) wholly or partially or as amended by the regulations; or (ii) as formulated, issued, prescribed or published at the time the regulations are made or at any time before then; or (iii) as formulated, issued, prescribed or published from time to time; and (g) may impose a penalty not exceeding 20 penalty units for any contravention of the regulations. 371 Fees (1) A power conferred by this Act to make regulations providing for the imposition of fees may be exercised by providing for all or any of the following matters-- (a) specific fees; (b) maximum or minimum fees; 282

Mental Health Act 2014 No. of 2014 Part 15--General s. 372 (c) maximum and minimum fees; (d) a scale of fees; (e) the payment of fees either generally or under specified conditions or in specified circumstances, including conditions or circumstances relating to the late lodgement of any application, or the late payment of fees, under this Act; (f) the reduction, waiver or refund, in whole or in part, of the fees. (2) If, under subsection (1)(f), regulations provide for a reduction, waiver or refund, in whole or in part, of a fee, the reduction, waiver or refund may be expressed to apply either generally or specifically-- (a) in respect of certain matters or transactions or classes of matters or transactions; or (b) in respect of certain documents or classes of documents; or (c) when an event happens; or (d) in respect of certain persons or classes of persons; or (e) in respect of any combination of matters, transactions, documents, events or persons-- and may be expressed to apply subject to specified conditions or in the discretion of any specified person. 372 Transitional regulations (1) The Governor in Council may make regulations containing provisions of a savings or transitional nature consequent on the enactment of this Act. (2) A provision mentioned in subsection (1) may be retrospective in operation to 1 July 2014. 283

Mental Health Act 2014 No. of 2014 Part 15--General s. 372 (3) Regulations made under this section have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument. (4) This section expires on 1 July 2016. __________________ 284

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 373 Provisions PART 16--REPEAL OF MENTAL HEALTH ACT 1986, SAVINGS AND TRANSITIONAL PROVISIONS 373 Definitions (1) In this Part-- 1986 Act means the Mental Health Act 1986; 2014 Act means the Mental Health Act 2014. (2) A word or expression that is defined in the 1986 Act and is used in this Part in relation to the 1986 Act has the same meaning as is given in the 1986 Act. 374 Mental Health Act 1986 repealed (1) The Mental Health Act 1986 is repealed. (2) Except as is expressly or by necessary implication provided in the 2014 Act, all persons, things and circumstances appointed or created by or under the 1986 Act or existing or continuing under the 1986 Act immediately before 1 July 2014 continue under and subject to the 2014 Act to have the same status, operation and effect as they would have had if the 1986 Act had not been repealed. (3) On and after 1 July 2014, any reference in any Act (other than the 2014 Act or regulation under the 2014 Act), regulation, subordinate instrument or other document whatsoever to the 1986 Act is to be construed as a reference to the 2014 Act, unless the contrary intention appears. (4) Nothing in this section limits or otherwise affects the operation of the Interpretation of Legislation Act 1984. 285

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 375 Provisions 375 Request and recommendation for involuntary treatment--section 9 of 1986 Act (1) On and after 1 July 2014, a person is taken to be subject to an Inpatient Assessment Order under the 2014 Act if, not more than 72 hours before that day, a request and recommendation is made under section 9 of the 1986 Act in relation to the person and the person has not been assessed in accordance with the request and recommendation. (2) An Inpatient Assessment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force, unless the Order is extended in accordance with section 34 of the 2014 Act or revoked in accordance with section 37 of the 2014 Act for a period of, whichever is the shorter-- (a) 24 hours, if the person who is subject to the Order is received at a designated mental health service; or (b) 72 hours, if the person who is subject to the Order is not received at a designated mental health service. 376 Authority to transport--section 9A of the 1986 Act (1) On and after 1 July 2014, a person is taken to be subject to an Inpatient Assessment Order under the 2014 Act if, not more than 24 hours before that day, the person is or may be taken under section 9A(1) of the 1986 Act to an appropriate approved mental health service despite a recommendation not being made under section 9(1)(b) of the 1986 Act. 286

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 377 Provisions (2) An Inpatient Assessment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force, unless the Order is extended in accordance with section 34 of the 2014 Act or expires or is revoked in accordance with section 37 of the 2014 Act, for a period (whichever is the shorter)-- (a) ending 24 hours after the person who is subject to the Order is received at a designated mental health service; or (b) of 72 hours, if the person who is subject to the Order is not received at a designated mental health service. 377 Transfers and apprehensions (1) On and after 1 July 2014, an authority to take a person referred to in section 9B of the 1986 Act is taken to be an authority to take a person under Division 3 of the Part 15 of the 2014 Act. (2) On and after 1 July 2014, a person is taken to have been apprehended under section 351 of the 2014 Act if, immediately before 1 July 2014 the person is apprehended under section 10 of the 1986 Act. 378 Involuntary treatment order not confirmed-- section 12 of the 1986 Act (1) On and after 1 July 2014, a person is taken to be subject to an Inpatient Assessment Order under the 2014 Act if, on 30 June 2014-- (a) an involuntary treatment order is made under section 12 of the 1986 Act for the person; and (b) the person is not examined in accordance with section 12AC(1) of the 1986 Act. (2) An Inpatient Assessment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force, unless the 287

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 379 Provisions Order is extended in accordance with section 34 of the 2014 Act or expires or is revoked in accordance with section 37 of the 2014 Act, for a period of, whichever is the shorter-- (a) 24 hours, if the person who is subject to the Order is received at an approved mental health service before 1 July 2014 in accordance with the involuntary treatment order made under section 12 of the 1986 Act; or (b) 72 hours, if the person who is subject to the Order is not received at an approved mental health service before 1 July 2014. 379 Involuntary treatment order not confirmed-- section 12AA of the 1986 Act (1) On and after 1 July 2014, a person is taken to be subject to an Inpatient Assessment Order under the 2014 Act if, on 30 June 2014-- (a) an involuntary treatment order is made for the person under section 12AA of the 1986 Act; and (b) the person is not examined in accordance with section 12AC(1) of the 1986 Act. (2) An Inpatient Assessment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force for a period of 24 hours, unless the Order is extended in accordance with section 34 of the 2014 Act or expires or is revoked in accordance with section 37 of the 2014 Act. 288

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 380 Provisions 380 Involuntary treatment order not reviewed-- section 12AC of the 1986 Act (1) On and after 1 July 2014, a person is taken to be subject to an Inpatient Temporary Treatment Order under the 2014 Act if, immediately before that day-- (a) the person is subject to an involuntary treatment order that is confirmed under section 12AC(2)(b) of the 1986 Act; and (b) an authorised psychiatrist has not made a community treatment order under section 14 of the 1986 Act for the person; and (c) the Mental Health Review Board has not conducted an initial review of the person's involuntary treatment order under section 30 of the 1986 Act. (2) An Inpatient Temporary Treatment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force for a period of 28 days, unless the Order is revoked or expires in accordance with section 55, 61 or 62 of the 2014 Act. 381 Continued detention and treatment of involuntary patient--sections 12A, 12C and 12D (1) On and after 1 July 2014, a person is taken to be subject to an Inpatient Assessment Order under the 2014 Act if, immediately before that day-- (a) an application by the authorised psychiatrist under section 12A of the 1986 Act or by the chief psychiatrist under section 12D of the 1986 Act is made in relation to the person and that application is not determined; or (b) the person is detained and treated in an approved mental health service under section 12C of the 1986 Act. 289

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 382 Provisions (2) An Inpatient Assessment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force for a period of 24 hours, unless it is extended in accordance with section 34 of the 2014 Act or expires or is revoked in accordance with section 37 of the 2014 Act. 382 Community treatment order--section 14 of the 1986 Act--no review by Board (1) On and after 1 July 2014, a person is taken to be subject to a Community Temporary Treatment Order under the 2014 Act if, immediately before that day-- (a) the person is subject to a community treatment order under section 14 of the 1986 Act; and (b) the Mental Health Review Board has not conducted a review of the person's involuntary treatment order under section 30 of the 1986 Act. (2) A Community Temporary Treatment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force for the period of 28 days, unless the Order is revoked or expires in accordance with section 55, 61 or 62 of the 2014 Act. 383 Community treatment order--section 14--review and confirmation by Board (1) On and after 1 July 2014, a person is taken to be subject to a Community Treatment Order under the 2014 Act if, immediately before that day-- (a) the person is subject to a community treatment order under section 14 of the 1986 Act; and 290

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 384 Provisions (b) the Mental Health Review Board has conducted a review of the person's involuntary treatment order under section 30 of the 1986 Act and has confirmed or varied the order under section 36(3) or 36C(3) of the 1986 Act. (2) A Community Treatment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force, unless the Order is revoked or expires in accordance with section 55, 61 or 62 of the 2014 Act, until the date that is 2 weeks after the end of the period specified under section 14(3) or 14B(1) of the 1986 Act (as the case may be) in relation to the community treatment order made under section 14 of the 1986 Act. 384 Restricted community treatment order-- section 15A of the 1986 Act (1) On and after 1 July 2014, a person is taken to be subject to a Community Temporary Treatment Order under the 2014 Act if, immediately before that day-- (a) the person is subject to a restricted community treatment order under section 15A of the 1986 Act; and (b) the Mental Health Review Board has not conducted a review of the person's restricted community treatment order under section 30(5) of the 1986 Act. (2) A Community Temporary Treatment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force for the period of 28 days, unless the Order is revoked or expires in accordance with section 55, 61 or 62 of the 2014 Act. 291

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 385 Provisions (3) On and after 1 July 2014, a person is taken to be subject to a Community Treatment Order under the 2014 Act if, immediately before that day-- (a) the person is subject to a restricted community treatment order under section 15A of the 1986 Act; and (b) the Mental Health Review Board has conducted a review of the person's restricted community treatment order under section 30(5) of the 1986 Act and has confirmed or varied the order under section 36D(3) of the 1986 Act. (4) A Community Treatment Order referred to in subsection (3) is taken to come into force on 1 July 2014 and to remain in force, unless the Order is revoked or expires in accordance with section 55, 61 or 62 of the 2014 Act, until, whichever comes first-- (a) the date that is 2 weeks after the end of the period specified under section 93(3) of the Sentencing Act 1991 (as in force immediately before 1 July 2014) in relation to the restricted community treatment order made under section 15A of the 1986 Act; or (b) 1 July 2015. 385 Hospital transfer order and restricted hospital transfer order--section 16 (1) On and after 1 July 2014, a person is taken to be subject to a Secure Treatment Order under the 2014 Act if, immediately before that day, the person is subject to-- (a) a hospital transfer order under section 16(3)(a) of the 1986 Act; or (b) a restricted hospital transfer order under section 16(3)(b) of the 1986 Act. 292

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 386 Provisions (2) If the hospital transfer order or restricted hospital transfer order referred to in subsection (1) is not reviewed before 1 July 2014 by the Mental Health Review Board under section 30 of the 1986 Act, the Mental Health Tribunal must conduct a hearing under section 279 of the 2014 Act in relation to the Secure Treatment Order referred to in subsection (1) within 28 days after-- (a) 1 July 2014, if the person subject to the hospital transfer order or restricted hospital transfer order is detained in an approved mental health service immediately before 1 July 2014; or (b) the person is received at a designated mental health service, if the person subject to the hospital transfer order or restricted hospital transfer order is not detained in an approved mental health service immediately before 1 July 2014. (3) If the hospital transfer order or restricted hospital transfer order referred to in subsection (1) is reviewed before 1 July 2014 by the Mental Health Review Board under section 30 of the 1986 Act, the Mental Health Tribunal must conduct a hearing under section 279 of the 2014 Act in relation to the Secure Treatment Order referred to in subsection (1) before 1 January 2015. 386 Transfer of person detained in prison under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 A person who, immediately before 1 July 2014, is the subject of an order made under section 17 of the 1986 Act and is not transferred to an approved mental health service in accordance with that order, is taken, on and after 1 July 2014, to be the subject of a direction made by the Secretary to the 293

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 387 Provisions Department of Justice under section 306 of the 2014 Act. 387 Appeals, reviews, proceedings and determinations (1) If, immediately before 1 July 2014, a proceeding in relation to an appeal to, or review by, the Mental Health Review Board in relation to an order or decision made under the 1986 Act is part heard or is adjourned, the appeal or review is to be determined by the Mental Health Tribunal in accordance with the relevant provisions of the 2014 Act in relation to the Order, direction or decision under the 2014 that is taken to be the order made under the 1986 Act by virtue of this Part. (2) On and after 1 July 2014, a determination or proceeding of the Mental Health Review Board under the 1986 Act is taken to be a determination or proceeding of the Mental Health Tribunal under the 2014 Act. (3) On and after 1 July 2014, the register of the Mental Health Review Board referred to in section 28 of the 1986 Act is taken to be the register of proceedings kept by the Mental Health Tribunal under section 176 of the 2014 Act. 388 Secrecy provisions On and after 1 July 2014, section 175 of the 2014 Act is taken to apply to any person to whom section 35 or section 63 of the 1986 Act applies immediately before that day. 389 Transfer of involuntary patient to another approved mental health service (1) On and after 1 July 2014, a person who, immediately before that day, is subject to a transfer order made under section 39(1) or (2) of the 1986 Act and who is not transferred in accordance with the transfer order, is taken to be 294

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 390 Provisions subject to a varied Order under section 65 of the 2014 Act which specifies that assessment of, or treatment for, (as the case may be) the person be provided by another designated mental health service. (2) On and after 1 July 2014, an appeal that, immediately before that day, is made under section 39(5) of the 1986 Act and is not determined, is taken to be an application for review under section 66 of the 2014 Act. 390 Leave of absence (1) On and after 1 July 2014, a leave of absence granted immediately before that day to an involuntary patient under section 40 or 41 of the 1986 Act is taken to be a leave of absence granted under section 64 of the 2014 Act. (2) A leave of absence under section 64 of the 2014 Act that is referred to in subsection (1) is taken-- (a) to have started on the day that the leave of absence granted under the 1986 Act started and to end on the day that the leave of absence granted under the 1986 Act would have ended; and (b) to be subject to the same conditions to which the leave of absence granted under the 1986 Act is subject. 391 Discharge after absence On and after 1 July 2014, an involuntary patient who, immediately before that day, is absent without leave from an approved mental health service for a continuous period of less than 12 months is taken to be subject to an Inpatient Treatment Order under the 2014 Act that has a duration of 6 months. 295

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 392 Provisions 392 Apprehension of involuntary patient absent without leave On and after 1 July 2014, an involuntary patient who immediately before that day is absent from an approved mental health service without permission or leave is taken to be a person who is absent without leave and to whom section 352 of the 2014 Act applies. 393 Transfer of security patient to another approved mental health service On and after 1 July 2014, an order made by the chief psychiatrist under section 49 of the 1986 Act to transfer a security patient to another approved mental health service is taken to be a direction made by the chief psychiatrist under section 292 of the 2014 Act to take a security patient to another designated mental health service if, immediately before 1 July 2014, the security patient is not transferred to the other approved mental health service. 394 Involuntary treatment order reviewed and confirmed by Board--section 36 of the 1986 Act (1) On and after 1 July 2014, a person is taken to be subject to an Inpatient Treatment Order under the 2014 Act if, immediately before that day-- (a) the person is subject to an involuntary treatment order that had been confirmed under section 12AC(2)(b) of the 1986 Act; and (b) an authorised psychiatrist has not made a community treatment order under section 14 of the 1986 Act for the person; and (c) the Mental Health Review Board has conducted a review of the person's involuntary treatment order under section 30 296

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 395 Provisions of the 1986 Act and has confirmed the order under section 36(3) of the 1986 Act. (2) In relation to a person who is of or over the age of 18 years, an Inpatient Treatment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force, unless the Order is revoked or expires in accordance with section 55, 61 or 62 of the 2014 Act for a period that ends-- (a) if the Mental Health Review Board reviewed the involuntary treatment order before 1 January 2014, 12 months and 2 weeks after the date on which the Board conducted the review; or (b) if the Mental Health Review Board reviewed the involuntary treatment order during the period starting on 1 January 2014 and ending on 30 June 2014, 6 months and 2 weeks after the date on which the Board conducted the review. (3) In relation to a person who is under the age of 18 years, an Inpatient Treatment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force, unless the Order is revoked or expires in accordance with section 55, 61 or 62, for 28 days. 395 Leave of absence for security patients granted under section 51 of 1986 Act (1) On and after 1 July 2014, an application for leave of absence for a security patient that, immediately before that day, is made under section 51 of the 1986 Act but not granted or refused to be granted, is taken to be an application for monitored leave made under section 285 of the 2014 Act. 297

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 396 Provisions (2) On and after 1 July 2014, a leave of absence for a security patient that is granted immediately before that day under section 51 of the 1986 Act is taken to be a monitored leave granted under section 285 of the 2014 Act. (3) A monitored leave under section 285 of the 2014 Act that is referred to in subsection (1) is taken-- (a) to have started on the day that the leave of absence granted under the 1986 Act started and to end on the day that the leave of absence granted under the 1986 Act would have ended; and (b) to be subject to the same conditions to which the leave of absence granted under the 1986 Act is subject. 396 Special leave of absence for security patients granted under section 52 of 1986 Act (1) On and after 1 July 2014, an application for special leave of absence for a security patient under section 52 of the 1986 Act that, immediately before that day, is made but not granted or refused to be granted, is taken to be an application for leave of absence made under section 281 of the 2014 Act. (2) On and after 1 July 2014, a special leave of absence for a security patient that is granted under section 52 of the 1986 Act immediately before that day is taken to be a leave of absence granted under section 281 of the 2014 Act. 298

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 397 Provisions (3) A leave of absence under section 281 of the 2014 Act that is referred to in subsection (1) is taken-- (a) to have started on the day that the special leave of absence granted under the 1986 Act started and to end on the day that the special leave of absence granted under the 1986 Act would have ended; and (b) to be subject to the same conditions to which the special leave of absence granted under the 1986 Act is subject. 397 Apprehension of security patient absent without leave under section 53 of 1986 Act A security patient who, immediately before 1 July 2014, is absent without leave and is apprehended under section 53 of the 1986 Act is taken, on and after 1 July 2014, to be apprehended under section 352 of the 2014 Act. 398 Transfer of forensic patient to another approved mental health service On and after 1 July 2014, an order made by the chief psychiatrist under section 53AB(1) of the 1986 Act to transfer a forensic patient to another approved mental health service is taken to be a direction made by the chief psychiatrist under section 308(1) of the 2014 Act to take a forensic patient to another designated mental health service if, immediately before 1 July 2014, the forensic patient is not transferred to the other approved mental health service. 299

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 399 Provisions 399 Apprehension of forensic patient absent without leave under section 53AD of 1986 Act A forensic patient who, immediately before 1 July 2014, is absent without leave and is apprehended under section 53AD of the 1986 Act is taken, on and after that day, to be apprehended under section 352 of the 2014 Act. 400 Psychosurgery (1) On and after 1 July 2014, an application for consent to the performance of psychosurgery made under section 58(1) of the 1986 Act is taken to be an application made under section 100(2) of the 2014 Act if, immediately before that day-- (a) the application is made under the 1986 Act; and (b) the Psychosurgery Review Board has not started hearing the matter in relation to the application. (2) An application for consent to the performance of psychosurgery that, immediately before 1 July 2014, is made under section 58(1) of the 1986 Act and is not determined by the Psychosurgery Review Board under section 64 of the 1986 Act, is taken to be, on and after 1 July 2014, an application made under section 100(2) of the 2014 Act. (3) If, immediately before 1 July 2014, the Psychosurgery Review Board gives its consent under section 64 of the 1986 and the proposed surgery is not performed, on and after that day the consent is taken to be a grant of an application under section 102(1) of the 2014 Act. 300

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 401 Provisions (4) A psychiatrist who, immediately before 1 July 2014, arranges for a neurosurgeon to perform psychosurgery on a person and has not made a written report to the Psychosurgery Review Board must comply with the requirements of section 104 of the 2014 Act. 401 Electroconvulsive therapy (1) Despite the repeal of the 1986 Act, if, immediately before 1 July 2014, a person gives informed consent in accordance with Division 1AA of Part 5 of the 1986 Act to having electroconvulsive therapy (within the meaning of that Act) performed on him or her, sections 72 and 73 of the 1986 Act continue to apply to that person in relation to the course of electroconvulsive therapy for which the person gave informed consent. (2) Despite the repeal of the 1986 Act, if, immediately before 1 July 2014, an authorised psychiatrist authorises a course of electroconvulsive therapy (within the meaning of that Act) for a patient in accordance with section 73(3) of that Act, sections 72 and 73 of that Act continue to apply to the patient in relation to the course of electroconvulsive therapy that the authorised psychiatrist authorised. 402 Restraint and seclusion (1) An approval given by an authorised psychiatrist or an authorisation given by the senior registered nurse on duty under section 81(1) of the 1986 Act to the use and form of restraint on a person immediately before 1 July 2014 is taken, on and after that day, to be an authorisation to use a bodily restraint on the person under section 114 of the 2014 Act. 301

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 403 Provisions (2) An approval given by an authorised psychiatrist or an authorisation given by the senior registered nurse on duty under section 82(1) of the 1986 Act to the use of seclusion of a person immediately before 1 July 2014, is taken, on and after that day, to be an authorisation to use seclusion of the person under section 111 of the 2014 Act. 403 Urgent non-psychiatric treatment On and after 1 July 2014, urgent non-psychiatric treatment that immediately before that day is performed under section 84(3) of the 1986 Act is taken to be urgent medical treatment referred to in section 77 of the 2014 Act during the course of that medical treatment. 404 Corresponding laws and orders On and after 1 July 2014, an Order in Council made under section 93B of the 1986 Act that is in force immediately before that day, is taken to be an Order in Council made under section 314 of the 2014 Act. 405 Ministerial agreements On and after 1 July 2014, an agreement made by the Minister under section 93C of the 1986 Act that is in force immediately before that day, is taken to be an agreement made by the Minister under section 315 of the 2014 Act. 406 Transfer of persons from this State On and after 1 July 2014, a person who, immediately before that day, is being taken to an interstate mental health facility under section 93E(1) of the 1986 Act is taken to being taken to the interstate mental health facility under section 318(1) of the 2014 Act. 302

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 407 Provisions 407 Admission of persons from interstate On and after 1 July 2014, a person who, immediately before that day, is being taken to an approved mental health service under section 93F(1) of the 1986 Act is taken to being taken to a designated mental health facility under section 319 of the 2014 Act. 408 Transfer of patients from this State (1) On and after 1 July 2014, a transfer order that, immediately before that day, is made under section 93G(1) of the 1986 Act and is not reviewed by the Mental Health Review Board is taken to be-- (a) a direction to take a person to an interstate mental health facility under section 322 of the 2014 Act, in the case of a person who consents to the transfer; or (b) an application to the Mental Health Tribunal under section 323 of the 2014 Act to take a person to an interstate mental health facility, in the case of person who does not consent to the transfer. (2) On and after 1 July 2014, a transfer order that, immediately before that day, is made under section 93G(1) of the 1986 Act and is confirmed by the Mental Health Review Board is taken to be-- (a) a direction to take a person to an interstate mental health facility under section 322 of the 2014 Act, in the case of a person who consents to the transfer and immediately before 1 July 2014 is not received by the interstate mental health facility; or 303

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 409 Provisions (b) an interstate transfer order made by the Mental Health Tribunal under section 323 of the 2014 Act to take a person to an interstate mental health facility, in the case of person who does not consent to the transfer and immediately before 1 July 2014 is not received by the interstate mental health facility. 409 Transfer of patients from interstate On and after 1 July 2014, a person who, immediately before that day, is being transferred to this State under section 93H(1) of the 1986 Act is taken as being taken to a designated mental health facility under section 324 of the 2014 Act. 410 Apprehension of person absent from interstate facilities On and after 1 July 2014, a person who, immediately before that day, is apprehended under section 93K(1) of the 1986 Act and is not taken to an interstate mental health facility, is taken to be apprehended under section 326(1) of the 2014 Act. 411 Escort of Victorian patients apprehended interstate On and after 1 July 2014, a person who, immediately before that day, is apprehended under section 93L(1) of the 1986 Act and is not taken to an approved mental health service, is taken to be apprehended under section 327 of the 2014 Act. 412 Warrant to arrest interstate security patient who absconds to Victoria (1) On and after 1 July 2014, an application to the Magistrates' Court made under section 93N of the 1986 Act, that is not considered by the Magistrates' Court immediately before 1 July 2014, is taken to be an application made under section 301 of the 2014 Act. 304

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 413 Provisions (2) On and after 1 July 2014, a warrant issued by the Magistrates' Court under section 93N of the 1986 Act immediately before that day is taken to be issued under section 301 of the 2014 Act. 413 Orders Magistrates' Court may make in respect of interstate security patients On and after 1 July 2014, an order made by the Magistrates' Court under section 93O(3) of the 1986 Act immediately before that day is taken to be an order made under section 302(3) of the 2014 Act. 414 Translated sentence for interstate security patient (1) On and after 1 July 2014, an application to the Supreme Court made under section 93P(1) of the 1986 Act that is not considered by the Supreme Court or the County Court immediately before that day is taken to be an application made under section 303(1) of the 2014 Act. (2) On and after 1 July 2014, a translated sentence imposed under section 93P(3) of the 1986 Act immediately before that day is taken to be imposed under section 303(3) of the 2014 Act. (3) On and after 1 July 2014, an order made under section 93P(4) of the 1986 Act immediately before that day is taken to be an order made under section 303(4) of the 2014 Act. 415 Emergency declaration of approved mental health services Despite section 374(1) of the 2014 Act, a declaration made under section 94A of the 1986 Act that has effect immediately before 1 July 2014 continues to have effect for the period stated in the notice of declaration. 305

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 416 Provisions 416 Authorized psychiatrist (1) On and after 1 July 2014, a person who, immediately before that day, is an authorised psychiatrist under section 96 of the 1986 Act is taken to be an authorised psychiatrist under section 150 of the 2014 Act. (2) On and after 1 July 2014, a delegation made, under section 96(4) of the 1986 Act to a qualified psychiatrist and that is in force immediately before that day, is taken to be a delegation made under section 151(1) of the 2014. (3) On and after 1 July 2014, a delegation made, under section 96(5) of the 1986 Act to a registered medical practitioner and that is in force immediately before that day, is taken to be a delegation made under section 151(2) of the 2014 Act that expires on the date specified in the relevant instrument of delegation made under section 96(5) of the 1986 Act. 417 Provision of staff services On and after 1 July 2014, any person or class of person who or that, immediately before 1 July 2014, is providing services under section 97 of the 1986 Act continues to be subject to that section as in force immediately before 1 July 2014, despite section 374(1) of the 2014 Act, until the person or class of person ceases to provide such services. 418 Chief psychiatrist On and after 1 July 2014, the person who is the chief psychiatrist appointed under section 105 of the 1986 Act immediately before that day, is taken to be the chief psychiatrist appointed under section 119 of the 2014 Act for the remainder of his or her term of appointment. 306

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 419 Provisions 419 Authorised officers (1) On and after 1 July 2014, a person who is an authorised officer under the 1986 Act immediately before that day is taken to be an authorised officer appointed under section 146 of the 2014 Act. (2) On and after 1 July 2014, an identity card, issued under section 106(2) of the 1986 Act to a person who is an authorised officer under that section immediately before that day, is taken to be an identity card referred to in section 147 of the 2014 Act. 420 Reportable deaths On and after 1 July 2014, a reportable death within the meaning of section 4 of the Coroners Act 2008 that occurred immediately before that day and is not reported in accordance with section 106A of the 1986 Act must be reported in accordance with section 348 of the 2014 Act. 421 Community visitors (1) On and after 1 July 2014, a person who is a community visitor under section 108 of the 1986 Act immediately before that day is taken to be a community visitor under section 214 of the 2014 Act. (2) On and after 1 July 2014, a request to see a community visitor under section 113 of the 1986 Act that, immediately before that day, is not granted is taken to be a request made under section 219 of the 2014 Act. 422 Victorian Institute of Forensic Mental Health (1) On and after 1 July 2014, a member of the Council of the Victorian Institute of Forensic Mental Health appointed under section 117F of the 1986 Act and holding office immediately before 1 July 2014 is taken to be a member of the 307

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 423 Provisions board of directors appointed under section 334 of the 2014 Act for the remainder of his or her term of appointment, subject to Division 2 of Part 14 of the 2014 Act. (2) On and after 1 July 2014, the chief executive officer of the Victorian Institute of Forensic Mental Health appointed under section 117I of the 1986 Act and holding office immediately before 1 July 2014 is taken to be the chief executive officer of the Victorian Institute of Forensic Mental Health appointed under section 340 of the 2014 Act for the remainder of his or her term of appointment. (3) On and after 1 July 2014, any person who immediately before that day is employed under section 117J of the 1986 Act is taken to be employed under section 341(1) of the 2014 Act until the person ceases to be so employed. 423 Review of certain decision by VCAT (1) On and after 1 July 2014, an application made under section 120 of the 1986 Act that, immediately before that day, is not considered by VCAT is taken to be an application made under section 201 of the 2014 Act. (2) If, immediately before 1 July 2014, a proceeding in relation to an application for review made under section 120 of the 1986 Act is part heard or is adjourned, the application is to be determined by VCAT in accordance with the relevant provisions of the 2014 Act. 424 Payment for recommendation On and after 1 July 2014, a recommendation referred to in section 127 of the 1986 Act that is made immediately before that day and for which a registered medical practitioner receives no 308

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 425 Provisions payment is taken to be an examination for the purposes of section 357 of the 2014 Act. 425 Constitution of the Mental Health Tribunal Despite anything to the contrary in section 179 of the 2014 Act, for a period starting on 1 July 2014 and ending on 30 June 2015, the President of the Mental Health Tribunal may, in relation to a proceeding in the general division of the Tribunal, determine that the Tribunal is determined by a legal member and a community member if the President is satisfied that a psychiatrist member or a registered medical practitioner member is not available. 426 President and members of the Mental Health Review Board (1) The person holding office as the President of the Mental Health Review Board under the 1986 Act immediately before 1 July 2014 is taken, on and after that day, to be the President of the Mental Health Tribunal until 1 June 2017, subject to Division 2 of Part 8 of the 2014 Act. (2) A person (except the President) holding office as a member of the Mental Health Review Board under the 1986 Act immediately before 1 July 2014 is taken to be an ordinary member of the Mental Health Tribunal on and after that day for remainder of his or her term of appointment, subject to Division 2 of Part 8 of the 2014 Act. (3) Despite subsection (2), a member of the Mental Health Review Board whose term of appointment expires on 25 July 2015 is taken to be an ordinary member of the Mental Health Tribunal until 24 February 2016, subject to Division 2 of Part 8 of the 2014 Act. 309

Mental Health Act 2014 No. of 2014 Part 16--Repeal of Mental Health Act 1986, Savings and Transitional s. 427 Provisions 427 Psychosurgery Review Board (1) A person holding office, immediately before 1 July 2014, as a member of the Psychosurgery Review Board under clause 2(1)(c) or (d) of Schedule 3 to the 1986 Act (and any alternate member who is to act during the absence or illness of that member), is taken to be an ordinary member of the Mental Health Tribunal on and after 1 July 2014 for the remainder of his or her term of appointment, subject to Division 2 of Part 8 of the 2014 Act. (2) Despite subsection (1), a member of the Psychosurgery Review Board who is referred to in clause 2(1)(c) or (d) of Schedule 3 to the 1986 Act (and any alternate member is to act during the absence or illness of that member) whose term of appointment expires on 26 June 2015 or 4 September 2015 is taken to be an ordinary member of the Mental Health Tribunal until 24 February 2016, subject to Division 2 of Part 8 of the 2014 Act. 428 Repeal of spent provisions Part 17 and the Schedule are repealed on 1 July 2015. Note The repeal of Part 17 and the Schedule does not affect the continuing operation of the amendments made by that Part or the Schedule (see section 15(1) of the Interpretation of Legislation Act 1984.) __________________ 310

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 429 Impairment and Unfitness to be Tried) Act 1997 and Other Acts PART 17--AMENDMENTS TO THE SENTENCING ACT 1991, THE CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 AND OTHER ACTS Division 1--Sentencing Act 1991 429 Definitions (1) In section 3(1) of the Sentencing Act 1991-- See: Act No. 49/1991. (a) the definition of approved mental health Reprint No. 15 service is repealed; as at 30 September (b) for the definition of authorised psychiatrist 2013 and substitute-- amending Act Nos "authorised psychiatrist has the same 32/2013, meaning as in the Mental Health Act 46/2013, 70/2013 and 2014;"; 77/2013. LawToday: (c) in the definition of chief psychiatrist, for www. legislation. "Mental Health Act 1986" substitute vic.gov.au "Mental Health Act 2014"; (d) the definition of hospital security order is repealed; (e) the definition of involuntary patient is repealed; (f) for the definition of Mental Health Review Board substitute-- "Mental Health Tribunal means the Mental Health Tribunal established by section 152 of the Mental Health Act 2014;"; (g) in the definition of mental illness, for "Mental Health Act 1986" substitute "Mental Health Act 2014"; (h) the definition of restricted involuntary treatment order is repealed; (i) in the definition of security patient, for "Mental Health Act 1986" substitute "Mental Health Act 2014". 311

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 430 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (2) In section 3(1) of the Sentencing Act 1991 insert the following definitions-- "Court Assessment Order means an Order within the meaning of section 90; Court Secure Treatment Order means an Order within the meaning of section 94A; designated mental health service means a designated mental health service within the meaning of the section 3(1) of the Mental Health Act 2014; Secure Treatment Order means an Order within the meaning of section 275 of the Mental Health Act 2014; Temporary Treatment Order means an Order within the meaning of section 45 of the Mental Health Act 2014;". 430 Sentences In section 7(1)(aab) of the Sentencing Act 1991, for "an approved mental health service as a security patient (a hospital security order)" substitute "a designated mental health service as a security patient (Court Secure Treatment Order)". 431 Time held in custody before trial etc. to be deducted from sentence (1) In section 18(1)(a) of the Sentencing Act 1991, for "an approved mental health service under a hospital security order" substitute "a designated mental health service under a Court Secure Treatment Order". (2) In section 18(2)(b) of the Sentencing Act 1991, for "an approved" substitute "a designated". 312

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 432 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (3) In section 18(2)(d) of the Sentencing Act 1991, for "hospital security order" substitute "Court Secure Treatment Order". 432 Indefinite sentence For section 18A(7) of the Sentencing Act 1991 substitute-- "(7) If a court is considering imposing an indefinite sentence on an offender it must also consider whether section 94B applies and, if it considers that it does apply, the court must make a Court Secure Treatment Order under section 94B.". 433 Court Secure Treatment Orders For section 18E of the Sentencing Act 1991 substitute-- '18E Court Secure Treatment Orders (1) If a court imposes an indefinite sentence on an offender as mentioned in section 94(1)(b) after considering the authorised psychiatrist's report made after examining the offender subject to a Inpatient Court Assessment Order made under section 90, the court must deduct from the nominal sentence the period of time that the offender was detained under the Court Assessment Order. (2) Section 94C applies if a person is found guilty of a serious offence and a court imposes an indefinite sentence in the same way it applies on any other finding of guilt but as if-- (a) section 94C(3) provided that the duration of the Court Secure Treatment Order was for an indefinite period; and 313

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 434 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (b) section 94C(4) did not require the fixing of a non-parole period but instead required the court to specify a nominal sentence as if the Court Secure Treatment Order were an indefinite sentence; and (c) in section 94C(5) the words "before the end of the period specified in a Court Secure Treatment Order" were omitted; and (d) section 94C(5) referred to-- (i) an indefinite term instead of the unexpired portion of the Court Secure Treatment Order; and (ii) release under a re-integration program instead of release on parole. (3) A Court Secure Treatment Order made under section 94B (as applied by subsection (2) of this section) has effect for all purposes as an indefinite sentence.'. 434 Time held in custody before trial etc. to be deducted from sentence In section 35(2)(c) of the Sentencing Act 1991, for "hospital security order" substitute "Court Secure Treatment Order". 314

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts 435 Part 5 of the Sentencing Act 1991 substituted For Part 5 of the Sentencing Act 1991 substitute-- "PART 5--MENTALLY ILL OFFENDERS Division 1--Court Assessment Orders 90 What is a Court Assessment Order? (1) A Court Assessment Order is an Order made by the court that enables a person who is subject to the Court Assessment Order to be compulsorily-- (a) examined by an authorised psychiatrist to determine whether-- (i) the person should be made subject to a Temporary Treatment Order; and (ii) the criteria specified in section 94B(1)(c) in relation to making a Court Secure Treatment Order apply to the person; or (b) taken to, and detained at, a designated mental health service and examined there by an authorised psychiatrist to determine whether-- (i) the person should be made subject to a Temporary Treatment Order; and (ii) the criteria specified in section 94B(1)(c) in relation to making a Court Secure Treatment Order apply to the person. (2) A Court Assessment Order referred to in subsection (1)(a) is a Community Court Assessment Order. 315

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (3) A Court Assessment Order referred to in subsection (1)(b) is an Inpatient Court Assessment Order. 91 When may the court make a Court Assessment Order? (1) Subject to subsection (2), the court may make a Court Assessment Order in relation to a person if-- (a) on the trial or hearing of the person for an offence the person is found guilty or pleads guilty to an offence; and (b) the person is not in custody pending sentencing; and (c) the criteria set out in subsection (2) apply to the person; and (d) the court has received a report from the authorised psychiatrist for the designated mental health service where it is proposed to assess the person stating that there are facilities or services available at that designated mental health service for the assessment of the person; and (e) in the case of an Inpatient Court Assessment Order, the assessment cannot occur in the community. (2) For the purposes of subsection (1), the criteria are-- (a) the person appears to have mental illness; and 316

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (b) because the person appears to have mental illness, the person appears to need immediate treatment to prevent-- (i) serious deterioration in the person's mental or physical health; or (ii) serious harm to the person or to another person; and (c) if the person is made subject to a Court Assessment Order, the person can be assessed; and (d) there is no less restrictive means reasonably available to enable the person to be assessed. 92 Contents of a Court Assessment Order and notification requirements (1) A Court Assessment Order must-- (a) state whether the Order is a Community Court Assessment Order or an Inpatient Court Assessment Order; and (b) include any prescribed information. (2) As soon as practicable after making a Court Assessment Order, the court must-- (a) notify the authorised psychiatrist that the Order has been made; and (b) give the authorised psychiatrist a copy of the Order. 93 Effect and duration of Court Assessment Order (1) As soon as practicable after an Inpatient Court Assessment Order is made, the person who is subject to the Order must be taken to a designated mental health service in 317

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts accordance with any direction made by the court under section 94D. (2) A Court Assessment Order comes into force when the Order is made and remains in force for a period of-- (a) in the case of a Community Court Assessment Order, 7 days; and (b) the case of an Inpatient Court Assessment Order, 7 days after the day on which the person who is subject to the Order is received at the designated mental health service. 94 Court powers following Court Assessment Order (1) If the court has considered a report made by an authorised psychiatrist after examining a person subject to a Court Assessment Order, the court may-- (a) make a Court Secure Treatment Order in relation to the person in accordance with section 94B; or (b) impose sentence on the person according to law. Note Section 43(d) of the Mental Health Act 2014 provides that an authorised psychiatrist must give a report to the court after assessing a person subject to a Court Assessment Order. (2) The court must deduct from the duration of the Court Secure Treatment Order or the sentence, the period of time that the person was detained under the Court Assessment Order. 318

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts Division 2--Court Secure Treatment Orders 94A What is a Court Secure Treatment Order? A Court Secure Treatment Order is an Order made by the court that enables a person who is subject to the Court Secure Treatment Order to be compulsorily taken to, and detained and treated, at a designated mental health service. 94B When may the court make a Court Secure Treatment Order? (1) The court may make a Court Secure Treatment Order by way of sentence in relation to a person who is found guilty of an offence or who pleads guilty to an offence if-- (a) but for the person having mental illness, the court would have sentenced the person to a term of imprisonment; and (b) the court has considered the person's current mental condition, his or her medical, mental health and forensic history and his or her social circumstances; and (c) the person has been examined by a psychiatrist and the court is satisfied by production of the psychiatrist's report and any other evidence that the following criteria apply to the person-- (i) the person has mental illness; and 319

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (ii) because the person has mental illness, the person needs treatment to prevent-- (A) serious deterioration in the person's mental or physical health; or (B) serious harm to the person or to another person; and (iii) the treatment referred to in subparagraph (ii) will be provided to the person if the person is made subject to a Court Treatment Order; and (iv) there is no less restrictive means reasonably available to enable the person to receive the treatment; and (d) the court has received a report from the authorised psychiatrist of the designated mental health service in which it is proposed that the person be detained and treated-- (i) recommending the making of the Order; and (ii) stating that there are facilities or services available at the designated mental health service for the detention and treatment of the person. (2) As soon as practicable after making a Court Secure Treatment Order, the court must-- (a) notify the authorised psychiatrist that the Order has been made; and (b) give the authorised psychiatrist a copy of the Order. 320

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts 94C Effect and duration of Court Secure Treatment Order (1) As soon as practicable after a Court Secure Treatment Order is made, the person who is subject to the Order must be taken to the designated mental health service referred to in section 94B(1)(d) in accordance with any directions made by the court under section 94D. (2) A person who is subject to a Court Secure Treatment Order becomes a security patient when he or she is received at the designated mental health service. (3) A Court Secure Treatment Order must specify the duration of the Order which must not exceed the period of imprisonment to which the person would have been sentenced had the Order not been made. (4) A court, when making a Court Secure Treatment Order, must fix a non-parole period in accordance with section 11 as if the Order were a term of imprisonment. (5) If, at any time before the end of the period specified in a Court Secure Treatment Order, a person is discharged as a security patient under section 274 of the Mental Health Act 2014, the Court Secure Treatment Order has effect as a sentence of imprisonment and that unexpired portion must be served in a prison or other place of confinement unless the person is released on parole. 321

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts Division 3--Taking persons subject to Court Assessment Order or Court Secure Treatment Order 94D Custody of persons subject to Court Assessment Order or Court Secure Treatment Order A court, when making a Court Assessment Order or Court Secure Treatment Order, may include in the Order the names of a person or persons who shall be responsible for taking the person subject to the Order-- (a) to the designated mental health service named in the Order; or (b) from the designated mental health service to the court in connection with the exercise by the court of its powers under section 94. Division 4--Transitional Provisions 94E Definition In this Division-- 2014 Act means the Mental Health Act 2014. 94F Assessment order and diagnosis, assessment and treatment order (1) On and after 1 July 2014, a person is taken to be subject to an Inpatient Court Assessment Order under the 2014 Act if, immediately before 1 July 2014, the person is subject to-- (a) an assessment order under section 90 of this Act as in force immediately before 1 July 2014; or 322

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (b) a diagnosis, assessment and treatment order under section 91 of this Act as in force immediately before 1 July 2014. (2) An Inpatient Court Assessment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force for a period of 7 days. 94G Hospital security order (1) On and after 1 July 2014, a person is taken to be subject to a Court Secure Treatment Order under this Act (as in force on that day) if, immediately before that day, the person is subject to a hospital security order under section 93A(1) of this Act (as in force immediately before 1 July 2014) or under section 16A(1) of the Mental Health Act 1986 (as in force immediately before 1 July 2014). (2) Subject to subsection (4), the Mental Health Tribunal must conduct a hearing under section 273 of the 2014 Act in relation to the Court Secure Treatment Order referred to in subsection (1) to which a person detained in a designated mental health service is subject within 28 days after 1 July 2014 to determine whether the criteria set out in section 94B(1)(c) of this Act (as in force on that day) apply to the person. (3) For the purposes of section 273(1)(b) of the 2014 Act, a hearing referred to in subsection (2) is taken to be an initial review. (4) A Court Secure Treatment Order referred to in subsection (1) is taken to expire on the date that the hospital security order would have expired but for the commencement of the 2014 Act. 323

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 435 Impairment and Unfitness to be Tried) Act 1997 and Other Acts 94H Restricted involuntary treatment order (1) On and after 1 July 2014, a person is taken to be subject to a Inpatient Treatment Order under the 2014 Act if, immediately before that day, the person is subject to a restricted involuntary treatment order under section 93(1)(a) of this Act (as in force immediately before 1 July 2014). (2) An Inpatient Treatment Order referred to in subsection (1) is taken to come into force on 1 July 2014 and to remain in force, unless the Order is revoked or expires in accordance with section 55, 61 or 62 of the 2014 Act, for a period of-- (a) 6 months, in the case of a person who is of or over the age of 18 years; or (b) 3 months, in the case of a person who is under the age of 18 years. 94I Proceedings in relation to orders If, immediately before 1 July 2014, a proceeding in relation to an order made under Part 5 of this Act (as in force immediately before 1 July 2014) is part heard or is adjourned, the proceeding is to be determined by the court in accordance with the relevant provisions of the 2014 Act and Part 5 of this Act (as in force on and after 1 July 2014) in relation to the Order under the 2014 Act or Part 5 of this Act (as in force on and after 1 July 2014) that is taken to be the Order under the Sentencing Act 1991 (as in force immediately before 1 July 2014). __________________". 324

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 436 Impairment and Unfitness to be Tried) Act 1997 and Other Acts Division 2--Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 436 Definitions (1) In section 3(1) of the Crimes (Mental See: Act No. Impairment and Unfitness to be Tried) Act 65/1997. 1997-- Reprint No. 4 as at 28 June 2012. (a) in the definition of appropriate place, for LawToday: paragraph (a) substitute-- www. legislation. "(a) a designated mental health service; or"; vic.gov.au (b) the definition of approved mental health service is repealed; (c) in the definition of authorised psychiatrist, for "Mental Health Act 1986" substitute "Mental Health Act 2014"; (d) in the definition of chief psychiatrist, for "Mental Health Act 1986" substitute "Mental Health Act 2014"; (e) in the definition of forensic patient, in paragraphs (a)(i) and (ii), (ab) and (ad), for "an approved" substitute "a designated"; (f) in the definition of forensic patient, for paragraph (b) substitute-- "(b) a person who is an international forensic patient; or (c) a person taken from a prison to a designated mental health service under section 306 of the Mental Health Act 2014;". 325

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 437 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (2) Insert the following definitions in section 3(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997-- "designated mental health service has the same meaning as in section 3(1) of the Mental Health Act 2014; Secure Treatment Order means an Order within the meaning of section 175 of the Mental Health Act 2014;". 437 Supervision orders In section 26(8) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "an approved" substitute "a designated". 438 Warrant to arrest person subject to custodial supervision order who leaves Victoria (1) In sections 30B(1)(a) and (1A) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "an approved" substitute "a designated". (2) In section 30B(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "approved" substitute "designated". 439 Reports on mental condition of persons declared liable to supervision In section 41(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, in the definition of appropriate person, in paragraph (c)(i) and (ii), for "an approved" substitute "a designated". 326

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 440 Impairment and Unfitness to be Tried) Act 1997 and Other Acts 440 Certificate of available services In section 47(1A)(a)(i) and (ii) and (b)(i) and (ii) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "an approved" substitute "a designated". 441 Special leave In section 50(2)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "approved" substitute "designated". 442 What are the surrounds? (1) In section 52(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "an approved" substitute "a designated". (2) In section 52(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997-- (a) for "an approved" substitute "a designated"; (b) for "that approved" substitute "that designated". 443 Granting of on-ground or limited off-ground leave In section 54(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "approved" substitute "designated". 444 Applicant profile For section 54A(1)(a) and (b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute-- "(a) the authorised psychiatrist for the designated mental health service, in the case of a forensic patient detained in that designated mental health service; or". 327

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 445 Impairment and Unfitness to be Tried) Act 1997 and Other Acts 445 Leave plan or statement (1) For section 54B(1)(a) and (b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute-- "(a) the authorised psychiatrist for the designated mental health service, in the case of a forensic patient detained in that designated mental health service; or". (2) In section 54B(1), (2)(c) and (3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 omit "Clinical Director," wherever occurring. 446 Granting of extended leave (1) In section 57(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "approved" substitute "designated". (2) In section 57(4)(a)(i), (ii) and (iv) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "an approved" substitute "a designated". 447 Leave plan for extended leave In section 57A(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "approved" substitute "designated". 448 Suspension and revocation of extended leave In the note at the foot of section 58(6) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "section 53AD of the Mental Health Act 1986 (for forensic patients) and section 43E of the Intellectually Disabled Persons' Services Act 1986" substitute "section 352 of the Mental Health Act 2014 and section 160 of the Disability Act 2006". 328

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 449 Impairment and Unfitness to be Tried) Act 1997 and Other Acts 449 Appointment of people to assist the Panel In section 67 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 omit "approved under section 25 of the Mental Health Act 1986". 450 Transfer of persons from a participating State to Victoria (1) In the note at the foot of section 73E(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "an approved" substitute "a designated". (2) In section 73E(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "an approved" substitute "a designated". (3) In section 73E(4)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997-- (a) for "an approved" substitute "a designated"; (b) for "the approved" substitute "the designated". 451 Warrant to arrest person who absconds to Victoria In section 73J(1)(d)(ii) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "section 93K of the Mental Health Act 1986" substitute "section 326 of the Mental Health Act 2014". 452 Interim disposition order In section 73K(8)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "an approved" substitute "a designated". 329

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 453 Impairment and Unfitness to be Tried) Act 1997 and Other Acts 453 New Part 7C inserted After Part 7B of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- "PART 7C--INTERNATIONAL FORENSIC PATIENTS 73O Definition In this Part-- international forensic patient means a person who-- (a) is not subject to a Secure Treatment Order; and (b) is detained in a designated mental health service while serving a sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth. 73P Review of international forensic patients (1) Within 6 months after an international forensic patient has been received at a designated mental health service, the Secretary to the Department of Health must apply to the Supreme Court for a review. (2) The purpose of the review is to determine the appropriate disposition for the international forensic patient. (3) The Supreme Court may undertake the review itself or refer the matter to the County Court. 330

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 453 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (4) On a review, the court may-- (a) make a supervision order in respect of the international forensic patient as if the international forensic patient had been declared to be liable to supervision under Part 5; or (b) order the international forensic patient to be released unconditionally. (5) The court cannot make a supervision order that is more restrictive on the person's freedom and personal autonomy than the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth to which the international forensic patient was subject, unless satisfied that the safety of the international forensic patient or members of the public would be seriously endangered if a more restrictive order is not made. (6) If the court makes a supervision order, the court must set a nominal term for the order in accordance with section 28 as modified by section 73Q. (7) If the court makes a custodial supervision order, the court may grant extended leave to the international forensic patient if the court could have granted the international forensic patient extended leave on an application under section 57. 73Q Nominal term of supervision order (1) The court must set the nominal term of a supervision order made under section 73P in accordance with section 28 as if-- 331

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 453 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (a) the offence that led to the person being made subject to the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth had been committed in Victoria; and (b) the maximum penalty for that offence were the maximum penalty attaching to that offence at the date of the person's transfer to Victoria. (2) If the offence referred to in subsection (1) no longer exists at the date referred to in subsection (1)(b)-- (a) the court must determine whether there is an existing offence, as at that date, with which the person could have been charged had it existed at the time of the original charge; and (b) if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the date referred to in subsection (1)(b); and (c) if there is no such offence, the court must set the nominal term as 5 years. (3) If there never was an equivalent offence in Victoria to the offence that led to the person being made subject to the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth, the court must set the nominal term of the supervision order as 5 years. 332

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 453 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (4) Despite section 28(4), the nominal term of the supervision order runs from the day on which the person was first made subject to the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth. (5) If the nominal term of the supervision order has expired, the first major review must be undertaken within 12 months after the review under section 73P. 73R Appeal against unconditional release (1) The Attorney-General may appeal to the Court of Appeal against an order for unconditional release under section 73P(4)(b) if he or she considers that-- (a) the order should not have been made; and (b) an appeal should be brought in the public interest. (2) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C. (3) A notice of appeal under subsection (2) must be signed by the Attorney-General personally. (4) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed. 333

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 453 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (5) The Attorney-General must provide a copy of the notice of appeal to the Australian legal practitioner who last represented the respondent in the review under section 73P, if that Australian legal practitioner can reasonably be identified. (6) On an appeal under subsection (1), the Court of Appeal may-- (a) confirm the order; or (b) set aside the order and make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or (c) set aside the order and remit the matter, with or without directions, to the court that made the order for unconditional release. (7) If the Court of Appeal remits a matter to a court under subsection (6)(c), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal. (8) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order under this section-- (a) an order granting the person bail; (b) subject to subsection (9), an order remanding the person in custody in an appropriate place; (c) subject to subsection (10), an order remanding the person in custody in a prison or any other place; 334

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 454 Impairment and Unfitness to be Tried) Act 1997 and Other Acts (d) if it is of the opinion that it is in the interests of justice to do so, an order that-- (i) the person undergo an examination by a registered medical practitioner or registered psychologist; and (ii) the results of the examination be put before the court that is to make the supervision order; (e) any other order the court thinks appropriate. (9) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available. (10) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances. __________________". 454 Transitional provision After section 89 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- "90 International forensic patient-- transitional provision A person who, immediately before 1 July 2014, is-- (a) not subject to a hospital transfer order or a restricted hospital transfer order under section 16(3) of the Mental 335

Mental Health Act 2014 No. of 2014 Part 17--Amendments to the Sentencing Act 1991, the Crimes (Mental s. 455 Impairment and Unfitness to be Tried) Act 1997 and Other Acts Health Act 1986 (as in force immediately before 1 July 2014); and (b) serving a sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth at an approved mental health service-- is taken on 1 July 2014 to be received at a designated mental health service as an international forensic patient.". Division 3--Amendments to other Acts 455 Consequential and other amendments to other Acts An Act specified in the heading to an item in the Schedule is amended as set out in that item. 456 Amendments consequential on Victoria Police Act 2013 In section 3(1)-- (a) in the definition of Chief Commissioner of Police, for "Police Regulation Act 1958" substitute "Victoria Police Act 2013"; (b) in the definition of police officer, for "Police Regulation Act 1958" substitute "Victoria Police Act 2013". 457 Amendments consequential on Legal Profession Uniform Law Application Act 2014 In section 3(1), the definitions of Australian lawyer and Australian legal practitioner are repealed. __________________ 336

Mental Health Act 2014 No. of 2014 Sch. SCHEDULE Section 455 CONSEQUENTIAL AND OTHER AMENDMENTS Division 1--Consequential amendments 1 Accident Compensation Act 1985 1.1 In section 5(1), in the definition of hospital, for paragraph (b) substitute-- "(b) a designated mental health service within the meaning of the Mental Health Act 2014; or". 2 Children, Youth and Families Act 2005 2.1 In section 3(1), in the definition of information holder, for paragraph (g) substitute-- "(g) a person in charge of a mental health service provider within the meaning of section 3(1) of the Mental Health Act 2014;". 2.2 In section 3(1), in the definition of service agency, for paragraph (c) substitute-- "(c) a mental health service provider within the meaning of section 3(1) of the Mental Health Act 2014;". 2.3 For sections 37(c)(ii), 40(c)(ii), 189(c)(ii), 193(c)(ii), 208(c)(ii) and 212(c)(ii) substitute-- "(ii) section 346 of the Mental Health Act 2014.". 3 Commission for Children and Young People Act 2012 3.1 In section 53(1)(f), for "2000." substitute "2000;". 337

Mental Health Act 2014 No. of 2014 Sch. 3.2 After section 53(1)(f) insert-- "(g) the Mental Health Complaints Commissioner within the meaning of the Mental Health Act 2014.". 4 Co-operative Housing Societies Act 1958 4.1 In section 48(11)(b), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 5 Coroners Act 2008 5.1 In section 3(1), in the definition of person placed in custody or care, for paragraph (i) substitute-- "(i) a patient detained in a designated mental health service within the meaning of the Mental Health Act 2014; or". 5.2 In section 4(2)(d), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 5.3 In section 12(2), for "an approved mental health service within the meaning of the Mental Health Act 1986" substitute "a designated mental health service within the meaning of the Mental Health Act 2014". 6 Corrections Act 1986 6.1 In section 3(1)-- (a) insert the following definition-- "Court Secure Treatment Order means an Order within the meaning of section 94A of the Sentencing Act 1991;"; (b) the definition of hospital security order is repealed. 338

Mental Health Act 2014 No. of 2014 Sch. 6.2 For section 9AA(1)(b)(iii) substitute-- "(iii) patients within the meaning of the Mental Health Act 2014 from a designated mental health service under that Act to a court or a police gaol or a designated mental health service; or". 6.3 In the heading to section 56AB, for "approved" substitute "designated". 6.4 For section 56AB(1)(a) substitute-- "(a) a designated mental health service within the meaning of the Mental Health Act 2014 in accordance with that Act;". 6.5 In section 56AB(2)-- (a) for "Mental Health Act 1986" (where twice occurring) substitute "Mental Health Act 2014"; (b) for "approved" substitute "designated". 6.6 In the note at the foot of section 56AB(3), for "sections 16, 17, 36, 37, 44 and 45 of the Mental Health Act 1986" substitute "sections 270, 291, 292, 306,307 and Division 3 of Part 15 of the Mental Health Act 2014". 6.7 For section 74(8A) substitute-- "(8A) The Board may make a parole order for a person who is detained in a designated mental health service under a Court Secure Treatment Order or Secure Treatment Order, but the parole order does not take effect until the person is discharged as a security patient under the Mental Health Act 2014.". 6.8 In section 74(9), for "hospital security order" substitute "Court Secure Treatment Order or Secure Treatment Order". 339

Mental Health Act 2014 No. of 2014 Sch. 7 Crimes Act 1958 7.1 In section 50(1), in the definition of residential facility, for paragraph (a) substitute-- "(a) a designated mental health service within the meaning of the Mental Health Act 2014; or". 7.2 In section 464(2)-- (a) the definition of approved mental health service is repealed; (b) insert the following definition-- "designated mental health service has the same meaning as in the Mental Health Act 2014;"; (c) in the definition of detained or protected person, for paragraph (d) substitute-- "(d) a patient within the meaning of the Mental Health Act 2014;"; - (d) in the definition of security patient, for "Mental Health Act 1986" substitute "Mental Health Act 2014". 7.3 In section 464B(1)(a), for subparagraphs (iii) and (iv) substitute-- "(iii) a forensic patient or a security patient within the meaning of the Mental Health Act 2014; and". 7.4 In section 464ZF(3)(b), for "an approved" substitute "a designated". 7.5 In section 464ZFA(1)(a), for "approved" substitute "designated". 340

Mental Health Act 2014 No. of 2014 Sch. 8 Criminal Procedure Act 2009 8.1 In section 3, in the definition of in detention, for paragraph (c) substitute-- "(c) detained in a designated mental health service within the meaning of the Mental Health Act 2014 in the legal custody of the authorised psychiatrist for the designated mental health service; or". 8.2 In section 3, in the definition of responsible person, for paragraph (c) substitute-- "(c) in the case of a designated mental health service within the meaning of the Mental Health Act 2014, the authorised psychiatrist for the designated mental health service;". 9 Duties Act 2000 9.1 In section 45A(1)(g), for "section 117B of the Mental Health Act 1986" substitute "section 328 of the Mental Health Act 2014". 10 Firearms Act 1996 10.1 In section 84(1)(c), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 10.2 In section 183(1), for "section 120A of the Mental Health Act 1986" substitute "section 346 of the Mental Health Act 2014". 11 Gambling Regulation Act 2003 11.1 In section 10.3.6-- (a) for paragraph (a) substitute-- "(a) the establishment and maintenance of designated mental health services within the meaning of the Mental Health Act 2014;"; 341

Mental Health Act 2014 No. of 2014 Sch. (b) in paragraph (c), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 12 Guardianship and Administration Act 1986 12.1 In section 18A(1)(d), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 12.2 For section 18A(5)(d) substitute-- "(d) a prescribed premises within the meaning of Part 9 of the Mental Health Act 2014;". 13 Health Services Act 1988 13.1 In section 17AB, for "section 117B of the Mental Health Act 1986" substitute "section 328 of the Mental Health Act 2014". 13.2 In section 139(1), for "psychiatric services" substitute "mental health service providers". 13.3 In section 139(2)(a)-- (a) for "psychiatric service" substitute "mental health service provider"; (b) for "psychiatric services" substitute "mental health service providers". 13.4 In section 139(2)(b), for "psychiatric services" substitute "mental health service providers". 13.5 In section 139(2A)-- (a) insert the following definition-- "mental health service provider has the same meaning as in section 3(1) of the Mental Health Act 2014;"; (b) the definition of psychiatric service is repealed. 342

Mental Health Act 2014 No. of 2014 Sch. 14 Human Services (Complex Needs) Act 2009 14.1 In section 3, the definition of Mental Health Review Board is repealed. 14.2 In section 3-- (a) in the definition of Secretary, for "Department." substitute "Department;"; (b) insert the following definition-- "Tribunal has the same meaning as in the Mental Health Act 2014;". 14.3 For section 7(b)(i) substitute-- "(i) has mental illness within the meaning of the Mental Health Act 2014;". 14.4 For section 14(2)(c) substitute-- "(c) the Tribunal;". 15 Information Privacy Act 2000 15.1 After section 34C insert-- "34D Referral of complaint to Mental Health Complaints Commissioner If the complaint could be made the subject of a complaint under the Mental Health Act 2014, the Privacy Commissioner may refer the complaint to the Mental Health Complaints Commissioner within the meaning of that Act and notify the complainant and the respondent in writing of the referral.". 16 International Transfer of Prisoners (Victoria) Act 1998 16.1 In section 4(3), in the definition of authorised person, in paragraph (b), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 343

Mental Health Act 2014 No. of 2014 Sch. 17 Juries Act 2000 17.1 In Schedule 2, in clause 3(b), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 18 Land Act 1958 18.1 In section 110(3) and (4), for "Mental Health Act 1986" (wherever occurring) substitute "Mental Health Act 2014". 19 Land Tax Act 2005 19.1 In section 74A(1)(g), for "section 117B of the Mental Health Act 1986" substitute "section 328 of the Mental Health Act 2014". 20 Magistrates' Court Act 1989 20.1 In section 3(1), in the definition of mental illness, for "Mental Health Act 1986" substitute "Mental Health Act 2014". 20.2 For section 16I(b)(iv) substitute-- "(iv) to make a Court Secure Treatment Order within the meaning of the Sentencing Act 1991; or". 21 Ombudsman Act 1973 21.1 In section 28(1) and (1A), for "mental health service within the meaning of the Mental Health Act 1986" substitute "designated mental health service within the meaning of the Mental Health Act 2014". 21.2 In Schedule 3, after item 10 insert-- "10A The Mental Health Complaints Commissioner". 344

Mental Health Act 2014 No. of 2014 Sch. 22 Payroll Tax Act 2007 22.1 In clause 17(1)(h) of Schedule 2, for "section 117B of the Mental Health Act 1986" substitute "section 328 of the Mental Health Act 2014". 23 Property Law Act 1958 23.1 In section 30(1) and (2), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 23.2 In section 171(9), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 24 Public Administration Act 2004 24.1 After section 6(1)(g) insert-- "(ga) the Mental Health Complaints Commissioner; (gb) the Mental Health Tribunal;". 24.2 In clause 1 of Schedule 1, in the definition of public service, paragraph (a) is repealed. 25 Residential Tenancies Act 1997 25.1 In section 3(1), in the definition of health or residential service, for paragraph (b) substitute-- "(b) premises used for a designated mental health service within the meaning of the Mental Health Act 2014; or". 26 Serious Sex Offenders (Detention and Supervision) Act 2009 26.1 In section 3, the definition of approved mental health service is repealed. 26.2 Insert the following definition in section 3-- "designated mental health service has the same meaning as it has in the Mental Health Act 2014;". 345

Mental Health Act 2014 No. of 2014 Sch. 26.3 In section 5(1), for "approved" substitute "a designated". 26.4 In section 5(2), for "approved" substitute "designated". 26.5 In section 75(1), for "an approved" substitute "a designated". 26.6 In section 189(4), in the definition of relevant Act, in paragraph (c) for "Mental Health Act 1986" substitute "Mental Health Act 2014". 26.7 For section 192(2)(e) substitute-- "(e) by a designated mental health service within the meaning of the Mental Health Act 2014.". 27 Sex Offenders Registration Act 2004 27.1 In section 3-- (a) in paragraph (a) of the definition of government custody-- (i) for subparagraph (v) substitute-- "(v) a security patient subject to a Court Secure Treatment Order within the meaning of the Sentencing Act 1991; or"; (ii) for subparagraph (vi) substitute-- "(vi) a security patient subject to a Secure Treatment Order within the meaning of the Mental Health Act 2014; or"; (iii) subparagraph (vii) is repealed; 346

Mental Health Act 2014 No. of 2014 Sch. (iv) for subparagraph (ix) substitute-- "(ix) a security patient taken to another designated mental health service under section 291 or 292 of the Mental Health Act 2014; or"; (b) for the definition of involuntary patient substitute-- "involuntary patient has the same meaning as patient has in section 3(1) of the Mental Health Act 2014;"; (c) in the definition of security patient, for "Mental Health Act 1986" substitute "Mental Health Act 2014"; (d) in the definition of supervised sentence, paragraph (cb) is repealed. 28 Summary Offences Act 1966 28.1 In Schedule 1, for item 4 substitute-- "4. Premises that are a designated mental health service within the meaning of the Mental Health Act 2014.". 29 Supported Residential Services (Private Proprietors) Act 2010 29.1 For section 5(1)(c) substitute-- "(c) premises used for a designated mental health service within the meaning of the Mental Health Act 2014;". 30 Tobacco Act 1987 30.1 In section 5A(2)(h), for "an approved mental health service (within the meaning of the Mental Health Act 1986)" substitute "a designated mental health service (within the meaning of the Mental Health Act 2014)". 347

Mental Health Act 2014 No. of 2014 Sch. 31 Transport Accident Act 1986 31.1 In section 3(1), in the definition of hospital, for paragraph (b) substitute-- "(b) a designated mental health service within the meaning of the Mental Health Act 2014; or". 32 Trustee Act 1958 32.1 In sections 41(9), 48(1), 51(2)(e) and 54, for "Mental Health Act 1986" substitute "Mental Health Act 2014". 33 Victims of Crime Assistance Act 1996 33.1 In section 29(3)(b), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 33.2 In section 53(b), for "Mental Health Act 1986" substitute "Mental Health Act 2014". 34 Workplace Injury Rehabilitation and Compensation Act 2013 34.1 In section 3, in the definition of hospital, for paragraph (c) substitute-- "(c) a designated mental health service within the meaning of the Mental Health Act 2014; or". Division 2--Statute law revision 35 Disability Act 2006 35.1 In section 3(1), in the definition of region, for "Health Services Act 1988" substitute "Supported Residential Services (Private Proprietors) Act 2010". 36 Health Services Act 1988 36.1 In section 3(1) of the Health Services Act 1988, the definition of region is repealed. 348

Mental Health Act 2014 No. of 2014 Sch. 37 Supported Residential Services (Private Proprietors) Act 2010 37.1 Insert the following definition in section 3(1)-- "region means a prescribed region of Victoria;". 349

Mental Health Act 2014 No. of 2014 Endnotes ENDNOTES Minister's second reading speech-- Legislative Assembly: Legislative Council: The long title for the Bill for this Act was "A Bill for an Act to provide a legislative scheme for the treatment of persons with mental illness, to repeal the Mental Health Act 1986, to make consequential amendments to the Sentencing Act 1991, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and other Acts and for other purposes." By Authority. Government Printer for the State of Victoria. 350

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