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Mental Health (Amendment) Bill
Victorian Legislation and Parliamentary Documents
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 is the commencement provision. The provisions of the Act come
into operation as follows--
· all provisions of the Act except Part 2 come into
operation on the day after the day on which the Act
receives Royal Assent; and
· the provisions of Part 2 come into operation on a day or
days to be proclaimed and if any such provision does
not come into operation before 1 January 2005, on that
day.
Clause 3 states that the Mental Health Act 1986 is the Principal Act for
the purposes of the Act.
PART 2--AMENDMENTS RELATING TO INVOLUNTARY
PATIENTS
Clause 4 inserts new definitions and amends other definitions in the
Principal Act.
The definition of "community treatment order" is replaced by a
new definition which refers to the new section 14.
A new definition of "involuntary patient" is substituted to reflect
amendments to the Principal Act included in this Act.
The change in definition includes the same categories of "patient"
as were included in the definition it replaces.
The definition of "security patient" is amended to reflect the
change in terminology incorporated in section 16(3) of the
Principal Act by clause 16. The change in definition does not
make any substantive changes.
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551089 BILL LA CIRCULATION 18/9/2003
Sub-clause (1)(d) inserts a number of new definitions into the
Principal Act for the sake of clarity. The exceptions are the
definitions of "involuntary treatment order" and "treatment plan"
Victorian Legislation and Parliamentary Documents
which are inserted to reflect substantive amendments made to the
Principal Act by this Act.
Clause 5 inserts a new Division 1 into Part 3 of the Principal Act.
The new section 7 is a re-enactment of the current section 9(8).
However, the new section 7 will apply to the whole of Part 3
whereas the current section 9(8) applies to the current section 9
only. This is not a substantive change.
Clause 6 re-enacts the criteria for involuntary treatment which are in the
current section 8(1) with one change. The new section 8(1)
replaces the concept of "the treatment can be obtained by
admission to and detention in an approved mental health service"
in paragraph (b) with "the treatment can be obtained by making
the person subject to an involuntary treatment order".
Pursuant to the amendments made by this Act, a person who
requires involuntary treatment will now be made subject to an
involuntary treatment order whereas under the current provisions
they would be admitted to and detained in an approved mental
health service (or deemed to be so admitted). The new concept
of "involuntary treatment order" is further discussed below in
relation to clause 9.
Clause 7 substitutes a new section 9 and inserts new sections 9A and 9B.
New section 9 is a re-enactment of existing section 9(1) to (4).
However, new section 9(4) replaces the requirement in existing
section 9(1)(b) that the registered medical practitioner who
makes the recommendation must have personally examined the
person not more than 3 clear days before their admission to the
approved mental health service with a statement that the request
and recommendation for the purpose of section 9 have effect for
72 hours following the examination of the person by the
registered medical practitioner who made the recommendation.
New section 9(5) provides 2 options for acting on a request and
recommendation. Section 9(5)(b) states that the person to whom
the recommendation relates may be taken to an approved mental
health service. This option re-enacts existing section 9(4).
The second option, section 9(5)(a), is a new option introduced by
this Act. The request and recommendation may be authority for
the person to be assessed by a mental health practitioner instead
of being taken to an approved mental health service.
The new section 9A re-enacts sections 9(7A) and 9(7C).
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The new section 9B is a re-enactment of sections 9(5), (6)
and (7). The new section 9B(1) clarifies the circumstances where
section 9B may be relied upon to take a person to an approved
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mental health service and replaces, amongst other provisions,
section 9(7B).
Clause 8 makes some consequential amendments to section 10 of the
Principal Act to reflect other changes made by this Act.
Clause 9 substitutes a new section 12 in the Principal Act and inserts new
sections 12AA to 12AE.
Under the current Act, a person who is the subject of a request
and recommendation is taken to an approved mental health
service, where the person is admitted pursuant to section 12.
A person admitted in accordance with Division 2 of Part 3 is an
"involuntary patient" for the purposes of the Principal Act.
The amendments made by this Act replace the concept of
admission to an approved mental health service in Division 2 of
Part 3 with the concept of an involuntary treatment order.
The definition of "involuntary patient" includes a person who is
subject to an involuntary treatment order rather than a person
admitted to an approved mental health service under Division 2
of Part 3.
The new section 12 provides a new option for a mental health
practitioner to examine the recommended person in the
community. The mental health practitioner has 2 options under
the new section 12(2). The practitioner may take the person, or
arrange for the person to be taken, to an approved mental health
service for the making of an involuntary treatment order in
accordance with the new section 12AA. Alternatively, the
mental health practitioner may make an involuntary treatment
order for the person, and the person may stay in the community
until he or she is examined by the authorised psychiatrist under
the new section 12AC.
In these circumstances, the new section 12(5) has the same effect
as the current section 12(1)(ab). If the mental health practitioner
is of the view that the recommended person does not satisfy the
section 8(1) criteria or that an involuntary treatment order should
be made for the person, the mental health practitioner should
notify the authorised psychiatrist of the appropriate approved
mental health service as soon as practicable. This will ensure
that the authorised psychiatrist will conduct an examination for
the purposes of the new section 12AC as soon as possible.
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Section 12(6) provides that at any time after an involuntary
treatment order is made but before the authorised psychiatrist
examines the person under section 12AC, a mental health
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practitioner may take or arrange for the person to be taken to an
appropriate approved mental health service. This means that if a
mental health practitioner comes to the view within the 24 hour
period that the person should be taken to the approved mental
health service, the practitioner may arrange for the person to be
so taken. New section 9B(1)(c) provides that the powers set out
in section 9B may be used in these circumstances.
The new section 12(7) provides that a person in respect of whom
a mental health practitioner has made an involuntary treatment
order, but who is taken to the approved mental health service
under the new section 12(6) prior to being examined by the
authorised psychiatrist, may be detained in the approved mental
health service until he or she is examined by the authorised
psychiatrist.
The new section 12AA is a re-enactment of the current
section 12(1)(a) and (ab) and the part of section 12(4) relating to
detention rather than treatment.
The new section 12AB is a re-enactment of the current
section 12(1)(aa) except that it also applies where the involuntary
treatment order is made by a mental health practitioner under the
new section 12.
The new sections 12AC(1) and (2) are re-enactments of the
current section 12(1)(b) and section 12(2) respectively except
that they also apply where the involuntary treatment order is
made by a mental health practitioner under the new section 12.
The new section 12(3) provides that the authorised psychiatrist,
in confirming an involuntary treatment order under the new
section 12AC(2)(b), may make a community treatment order for
the person.
The new section 12AC(4) provides what is to happen when the
authorised psychiatrist confirms the involuntary treatment order
for the person but does not make a community treatment order
for the person.
The new section 12AC(5) reflects the principle underlying the
Principal Act that the least restrictive option for the treatment of a
mentally ill person is to be preferred. The section provides that,
when confirming an involuntary treatment order, the authorised
psychiatrist should make a community treatment order for the
person unless satisfied that the treatment required for the person
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cannot be obtained through the making of a community treatment
order.
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The new section 12AC(6) is a re-enactment of the current
section 12(3).
The new section 12AD(1) is a re-enactment of the part of the
current section 12(4) relating to treatment.
The new section 12AD(2) is a re-enactment of the current
section 12(5).
The new section 12AE is a re-enactment of the current
section 12(6).
Clause 10 amends section 12A of the Principal Act to refer to the new
concept of involuntary treatment orders. The amendment made
by clause 10(2) clarifies that the authorised psychiatrist may
make an application to the chief psychiatrist in accordance with
section 12A for the continued detention and treatment of a
person, despite having discharged the person from their
involuntary treatment order.
The clause also inserts a new section 12D(3) in the Principal Act,
which clarifies that when the chief psychiatrist applies under
section 12D(1) for the continued detention and treatment of a
person, the person is automatically discharged from their
involuntary treatment order, but remains an involuntary patient.
Clause 11 re-enacts section 13 of the Principal Act except that the language
refers to the new concept of an involuntary treatment order.
Clause 12 substitutes a new section 14 in the Principal Act which provides
for the making of community treatment orders by the authorised
psychiatrist for persons subject to involuntary treatment orders.
This clause also inserts new sections 14A to 14E which also
relate to community treatment orders.
The new section 14(1) clarifies that the authorised psychiatrist
may make a community treatment order for a person subject to an
involuntary treatment order at any time. This section also
provides that the criteria for the making of a community
treatment order are the section 8(1) criteria and that the treatment
required for the person can be obtained through the making of a
community treatment order. This section is to be read in
conjunction with the new section 12AC(5) which provides that
the authorised psychiatrist may confirm an involuntary treatment
order without making a community treatment order only if he or
she is satisfied that the treatment required for the person cannot
be obtained through the making of a community treatment order.
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The new section 14(2) is a definition of a community treatment
order.
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The new section 14(3) sets out that a community treatment order
must specify the duration of the order, which may be up to
12 months, and may also specify where the person subject to the
order is to live. It re-enacts the current section 14(2)(d) and
section 14(2A). The remainder of section 14(2) is repealed, as
these matters are to be addressed in the treatment plan which is to
be prepared for every patient.
The new section 14(4) sets out the process to be followed by the
authorised psychiatrist after he or she has made a community
treatment order.
For the avoidance of doubt, the new section 14(5) provides that if
a community treatment order expires without being revoked, or if
the order is discharged, the person's involuntary treatment order
expires and the person is no longer an involuntary patient.
The new section 14(6) clarifies that a person on a community
treatment order does not cease to be an involuntary patient if a
hospital order or hospital transfer order is made for the person.
This sub-section is necessary because of the new section 14E,
which sets out the effect of a person's detention in custody under
a sentence of imprisonment or any order of a court on any
involuntary treatment order or community treatment order
applying to that person.
The new section 14A provides for the regular assessment of a
person subject to a community treatment order by a supervising
medical practitioner, who is specified in the person's treatment
plan.
The new section 14B provides for the extension of community
treatment orders, and replaces current section 14(6) and (7).
The new section 14B(2) clarifies that an extension of a
community treatment order takes effect from the time the
authorised psychiatrist makes the extension, rather than the time
that he or she conducts the examination of the person for the
purposes of section 14B(1)(a).
The new section 14B(4) provides, for the avoidance of doubt,
that a community treatment order cannot be extended after it has
expired.
The new section 14C re-enacts the current section 14(4)(a) except
that it also sets out the process to be followed when the
authorised psychiatrist varies a community treatment order.
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The new section 14D provides for the revocation of a community
treatment order by the authorised psychiatrist. The new section
14D(1) is similar to the current section 14(4)(b)(ii), which
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provides that the authorised psychiatrist may revoke the
community treatment order if satisfied on reasonable grounds
that the person still satisfies the section 8(1) criteria but the
treatment required by that person can no longer be obtained
under a community treatment order.
The new section 14D(2) re-enacts current section 14(4)(b)(i)
except that it provides guidance as to the process to be followed
by the authorised psychiatrist when he or she determines that the
person has not complied with their community treatment order,
and that the order should be revoked as a consequence.
Section 14D(2) also provides that the authorised psychiatrist may
revoke a person's community treatment order if the person
subject to the order fails to comply with his or her treatment plan.
The new section 14D(3)(a) provides that when the authorised
psychiatrist revokes a person's community treatment order, he or
she must make reasonable efforts to tell the person that the order
has been revoked and that the person must go to an approved
mental health service.
The new section 14D(3)(b) has the same effect as the current
section 14(4A).
The new section 14E describes the effect of a person's detention
in custody on an involuntary treatment order and, if applicable,
community treatment order to which the person is subject.
The current definition of a community treatment order in
section 3, which will be repealed by this Act, provides that a
community treatment order "does not apply to a person who is in
prison". However, the consequences of this aspect of the
definition are unclear.
The new section 14E clarifies that an involuntary treatment order
or community treatment order has no effect while a person
subject to it is in custody under a sentence of imprisonment or
under any order of a court requiring the person to be held in
custody. Section 14E(3) defines when a person is in custody.
The new section 14E(2) clarifies that a community treatment
order which has no effect because the person to which it applies
is in custody expires at the time it would have normally expired
despite any period during which it has no effect.
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Section 14E(4) clarifies that a person is discharged from any
applicable involuntary treatment order or community treatment
order when a hospital order, hospital transfer order, hospital
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security order or restricted hospital transfer order is made in
respect of that person.
Clause 13 makes amendments to Division 3 of Part 3 of the Principal Act.
Clause 13(1) re-enacts section 15(1) inserting new section
numbers and definitions without changing the effect of the
section.
Clause 13(2) makes a consequential amendment to reflect the
new definition of "hospital order" inserted by the Act.
The new section 15A(4) inserted by clause 13(3) provides a
definition of "restricted community treatment order".
The new section 15A(5) provides that the content of a restricted
community treatment order is to include current
section 15A(4)(f) and (g). The remainder of section 15A(4) is
repealed, as these matters are to be addressed in the treatment
plan which is to be prepared for every patient subject to a
restricted community treatment order.
The new section 15A(5A) sets out the process to be followed by
the chief psychiatrist when he or she makes a restricted
community treatment order for a person. This is intended to be
similar to the process followed by the authorised psychiatrist
when making a community treatment order for a person, which is
set out in new section 14(4).
Clause 14 inserts a new section 15AB in the Principal Act which provides
for the monitoring of a person subject to a restricted community
treatment order at regular intervals by a monitoring psychiatrist,
who is specified in the person's treatment plan. The requirements
for monitoring mirror the requirements for monitoring a person
on a community treatment order set out in the new section 14A,
except that the monitoring psychiatrist must notify the chief
psychiatrist if the monitoring psychiatrist is of the view that
although the person satisfies the criteria in section 15A(1) the
treatment required for the person cannot be obtained under the
order.
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Clause 15 substitutes new sections 15B and 15C and inserts new
sections 15D and 15E concerning restricted community treatment
orders.
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New sections 15B(1) and (3) re-enact sections 15C(1) and (2).
New section 15B(2) clarifies that the extension of a restricted
community treatment order takes effect when the chief
psychiatrist makes the extension, rather than when he or she
conducts the examination of the person subject to the order for
the purposes of the new section 15B(1).
New section 15B(4) sets out the process to be followed by the
chief psychiatrist when he or she extends a restricted community
treatment order.
New section 15C(1) re-enacts current section 15B(5) and clarifies
that the variation may be at any time.
New section 15C(2) sets out the process to be followed by the
chief psychiatrist when he or she varies a restricted community
treatment order.
New section 15D(1) re-enacts section 15B(6) except it adds that
the restricted community treatment order may also be revoked for
non-compliance by the patient with his or her treatment plan.
New section 15D(2)(a) re-enacts current section 15B(8) and new
section 15D(2)(b) has the same effect as current section 15B(7)
(without using the deeming language of this section).
The new section 15E(1) clarifies that a restricted community
treatment order has no effect while a person subject to it is in
custody under a sentence of imprisonment or under any order of a
court requiring the person to be held in custody. Section 15E(3)
defines when a person is in custody.
The new section 15E(2) clarifies that a restricted community
treatment order which has no effect because the person to which
it applies is in custody expires at the time it would have normally
expired despite any period during which it has no effect.
Clause 16 substitutes the terms "hospital transfer order" for "hospital order"
and "restricted hospital transfer order" for "restricted hospital
order" in section 16 of the Principal Act. The substitution of
definitions have no substantive effect but avoids confusion given
that section 93(1)(d) of the Sentencing Act 1991 also refers to
the making of a hospital order.
Clause 17 makes amendments to update the language in section 18 of the
Principal Act.
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Clause 18 inserts a new section 19A in the Principal Act, which requires the
authorised psychiatrist to prepare, regularly review and revise a
treatment plan for each patient, whether the patient be an
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involuntary, security or forensic patient.
New section 19A(2) sets out the matters that must be considered
by the authorised psychiatrist when he or she is preparing,
reviewing and revising a treatment plan for a patient.
These include the wishes of the patient, if ascertainable, and the
wishes of the primary carer of the patient.
New section 19A(3) provides that the treatment plan for a patient
detained in an approved mental health service must contain an
outline of the treatment the patient is to receive.
New section 19A(4) sets out requirements for the content of a
treatment plan for a person subject to a community treatment
order or restricted community treatment order.
New section 19A(6) provides that the authorised psychiatrist
must give each patient a copy of the patient's treatment plan,
including any revisions to the plan, and discuss the plan with the
patient.
Clause 19 makes some minor amendments to provisions setting out the
appeal and review functions of the Mental Health Review Board
(the Board), and the related appeal rights of patients.
Clause 19(1) amends the language of section 22 of the Principal
Act to provide that the functions of the Board are to hear appeals
and reviews in relation to involuntary patients and security
patients generally rather than to hear appeals and reviews
concerning the "continued detention" of such persons. This is
because persons subject to a community treatment order are no
longer deemed to be detained.
Clause 19(1) also amends the functions of the Board to include in
section 22(1)(b) a function of reviewing periodically the
treatment plan of involuntary and security patients.
The new section 29(1) substituted by clause 19(2) is a
re-enactment of the current section 29(1)(a). The new
section 29(1A) is a re-enactment of the current section 29(1)(b).
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Clause 20 substitutes new sections 30 and 31 in the Principal Act.
New sections 30(1), (2), (3) and (5) together constitute a
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re-enactment of the current section 30.
New section 30(4) is a re-enactment of the current sections 14(8)
and 15C(3).
New section 31 is a re-enactment of the current section 31 except
that it clarifies that the Board may conduct more than one appeal
and/or review in respect of one person at any one time.
Clause 21 amends section 32 of the Principal Act to impose a new
requirement on the authorised psychiatrist of an approved mental
health service to ensure that the case manager of an involuntary
or security patient receives a notice of the hearing applying to
that patient as soon as practicable after the authorised psychiatrist
receives the notice. Case managers work closely with patients
and have a good knowledge of their mental condition, the
relevant treatment plan and the patient's family and social
circumstances. This new requirement to ensure case managers
receive notice of a Board hearing means that the case manager
has the opportunity of providing relevant information at a Board
hearing.
Clause 21(2) makes a consequential amendment to
section 32(2)(c) required by the removal of the concept of
"deemed detention" from the Principal Act.
Clause 22 inserts a new section 35A into the Principal Act, which requires
the Board to review the treatment plan for each patient when
conducting any appeal or review under the Act. There are two
aspects to the Board's review of a treatment plan. New section
35A(1)(a) requires the Board to review whether the authorised
psychiatrist followed the process set out in new section 19A for
the making of the treatment plan. Secondly, new section
35A(1)(b) requires the Board to consider whether the plan is
capable of being implemented by the approved mental health
service. New section 35A allows the Board to order the
authorised psychiatrist to revise the treatment plan if it is not
satisfied as to either of these matters concerning the treatment
plan.
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Clause 23 substitutes a new section 36 and inserts new sections 36A to 36E
in the Principal Act.
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New section 36 sets out the powers of the Board on appeal or
review in relation to a patient who is detained under an
involuntary treatment order. New section 36(2) replaces current
section 36(1) insofar as it applies to patients who are actually
detained (rather than deemed to be detained) in an approved
mental health service under section 12.
New section 36(3) provides that if the Board is satisfied that the
section 8(1) criteria apply to the patient, the Board must confirm
the involuntary treatment order. The current section 36 does not
provide a power to be exercised by the Board in the event it
chooses not to discharge a patient or revoke or vary an order.
The new power of the Board to confirm an existing order is also
included in new sections 36A(3), 36B(3), 36C(3) and 36D(3).
New section 36(4) is a new provision which allows the Board,
when confirming an involuntary treatment order for a person who
is detained in an approved mental health service, to order the
authorised psychiatrist to make a community treatment order for
the patient. Under the current provisions of the Principal Act,
when the Board reviews the continued detention of a person
under the current section 12, the Board may discharge the person
under the current section 36(1) if the Board finds that the criteria
in section 8(1) are not satisfied. However, if the Board is of the
view that the section 8(1) criteria are satisfied, but is also of the
view that a community treatment order would be appropriate for
the person, the Board cannot make any such formal finding.
The Board must either discharge the person pursuant to the
current section 36(1) or find that their detention should be
continued.
The new section 36(4) allows the Board to order the authorised
psychiatrist to make a community treatment order within a
reasonable period determined by the Board. This means that the
Board should allow a reasonable amount of time for
accommodation and appropriate community support to be
arranged for the patient prior to the making of the community
treatment order.
New section 36(5) allows the authorised psychiatrist, at any time
during the reasonable period specified by the Board for the
making of the community treatment order, to apply to the Board
to reconsider an order made under new section 36(4).
This means that if circumstances change, the authorised
psychiatrist may bring the matter back to the Board.
The procedural requirements concerning Board hearings set out
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in sections 31 to 35 also apply to the hearing of this application
by the Board.
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The note to section 36 refers the Board to the obligation under
section 22(2) to consider the patient's social circumstances when
conducting any appeal or review. The existence of
accommodation and community support options for a patient is a
relevant factor for the Board to consider in making or
reconsidering an order under new section 36(4) or (5).
New section 36A re-enacts current section 36(3) except that new
section 36A(3) clarifies that if the Board considers that the
continued detention of a patient subject to a hospital transfer
order is necessary, the Board must confirm the order.
New section 36B re-enacts current section 36(2) except that the
new section 36B clarifies that if the Board considers that the
continued detention of a patient is necessary, the Board must
confirm the relevant order.
New section 36C(2) re-enacts current section 36(4)(c).
New section 36C(3)(a) re-enacts current section 36(4)(a) and also
provides that the Board may confirm the community treatment
order.
New section 36C(3)(b) and new section 36C(4) replace current
section 36(4)(b) in setting out when the Board may revoke a
community treatment order. These new provisions reflect the
amendments included in the new sections 14D(1) and (2).
The Board may revoke a community treatment order for non-
compliance or if it is satisfied on reasonable grounds that the
treatment requirement for the patient cannot be obtained under
the order. If the Board is of the view that the patient has not been
compliant with the community treatment order or treatment plan,
the Board must be satisfied of the matters set out in new section
36C(4)(b) and (c) before revoking the person's community
treatment order.
New section 36C(5)(a) provides that when the Board revokes a
person's community treatment order, it must make reasonable
efforts to tell the person that the order has been revoked and that
the person must go to an approved mental health service.
New section 36C(5)(b) has the same effect as the current
section 36(5)(a).
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New section 36D sets out the Board's powers of appeal and
review in relation to a person who is subject to a restricted
community treatment order. New section 36D(2) re-enacts
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section 36(2A)(b), new section 36D(3) re-enacts section
36(2A)(c) and provides that the Board may confirm the order and
new section 36D(4) re-enacts section 36(2A)(a).
New section 36D(5) sets out the action to be taken by the Board
upon revocation of a restricted community treatment order.
New section 36D(5)(a) and (b) are re-enactments of current
section 36(2B)(a) and (b) respectively, and new section
36D(5)(b) has the same effect as current section 36(2B)(c).
For the avoidance of doubt, new section 36D(6) clarifies that
when the Board discharges a patient from his or her restricted
community treatment order, he or she is also discharged from his
or her hospital order.
New section 36E re-enacts current section 36(1A) which applies
to reviews and appeals relating to persons detained under
section 12A(4) or 12C.
Clause 24 substitutes a new section 37 in the Principal Act which sets out
the powers of the authorised psychiatrist and chief psychiatrist to
discharge involuntary patients.
New section 37(1) is a re-enactment of current section 37(1).
New section 37(2) replaces current section 14(4)(c) in that it
provides that the authorised psychiatrist must discharge a person
from a community treatment order if the person does not satisfy
the criteria in section 8(1).
New section 37(3) is a re-enactment of current section 37(3).
New section 37(4) is a re-enactment of current section 37(2).
New section 37(5) is a re-enactment of current section 15B(1).
For the avoidance of doubt, new section 37(6) clarifies that when
the chief psychiatrist discharges a patient from his or her
restricted community treatment order, he or she is also
discharged from his or her hospital order.
Clause 25 makes a number of consequential amendments that follow from
the substantive amendments made to the Principal Act by this
Part of the Bill.
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Clause 26 makes a number of amendments to Part 5A of the Principal Act
which concerns the interstate application of mental health
provisions. Most of the amendments are changes to section
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numbers and language, such as removing reference to "admitted
and detained", that are consequential to other amendments made
by this Act. Any amendments which may have a substantive
effect are outlined below.
Clause 26(3)(b) repeals paragraph (a) in section 93G(1).
Although this paragraph required that the patient could continue
to be "detained", this did not prevent the transfer of patients
subject to a community treatment order because such patients
were deemed to be detained pursuant to current section 14(3)(a).
The repeal clarifies that, subject to new section 93G(9), all
involuntary patients may be transferred in accordance with
section 93G.
New section 93G(9) clarifies that an involuntary patient who is
subject to a hospital transfer order, an assessment order or a
diagnosis, assessment and treatment order cannot be transferred
out of Victoria under section 93G. These persons are subject to
orders of Victorian courts or, in the case of an involuntary patient
subject to a hospital transfer order, can only be discharged and
returned to prison.
Clause 26(5) substitutes a new section 93H(1). Currently,
section 93H(1) allows persons who are involuntarily detained in
an interstate mental health facility to be transferred to an
approved mental health service. The new section 93H(1) also
allows persons on interstate community treatment orders, which
are declared to be corresponding orders for the purposes of
Part 5A, to be transferred to a Victorian approved mental health
service. It is possible that a person subject to a corresponding
order transferred in accordance with section 93H could be placed
immediately on a Victorian involuntary treatment order and
community treatment order in accordance with new sections 12
and 12AC.
Clause 27 makes a number of further consequential amendments that follow
from the substantive amendments made to the Principal Act by
this Part of the Bill.
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Clause 28 inserts a number of transitional provisions into the Principal Act.
New sections 149(2), (3) and (4) apply to any persons who
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immediately before the commencement of operation of clause 28
were detained under section 12 of the Principal Act, or were
subject to a hospital order under section 16(3)(a) or restricted
hospital order under section 16(3)(b) respectively.
New section 149(6) provides that a treatment plan should be
prepared for any person who was a patient on the commencement
of clause 28, within 6 months of that day.
New section 149(7) provides that any requirement that the Board
review a patient's treatment plan does not apply for 6 months
after commencement of clause 28 unless a treatment plan has
been prepared for that patient.
PART 3--CONFIDENTIALITY AND OTHER AMENDMENTS
Clause 29 inserts a new definition of "approved mental health service" into
the Principal Act as a consequence of the amendment to insert
new section 94A into the Principal Act by clause 33 below.
Clause 30 amends the secrecy provisions applying to the Mental Health
Review Board and the Psychosurgery Review Board.
Paragraph (a) extends the application of the secrecy provision in
section 35 to a member of staff of the Mental Health Review
Board. Staff of the Board are employed pursuant to section 23 of
the Principal Act. Currently, section 35 does not apply to staff of
the Board.
Paragraph (b) extends the application of the secrecy provision in
section 63 to "a person employed or engaged to assist the
Psychosurgery Review Board". Currently, the duties of the staff
of the Mental Health Review Board include assisting the
Psychosurgery Review Board. This amendment will ensure that
section 63 applies to these persons when they are assisting the
Psychosurgery Review Board.
Clause 31 amends section 83(2) of the Principal Act to clarify that informed
consent for non-psychiatric treatments that are not major need not
be in writing.
Clause 32 inserts new headings into Division 1 of Part 6 to update the
language of the headings to reflect the current language of the
Principal Act and the amendment made by clause 33.
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Clause 33 inserts a new section 94A in the Principal Act which allows the
Secretary, by notice published in the Government Gazette, to
declare relevant premises or a relevant service as an approved
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mental health service. The Secretary may only make such a
declaration if he or she is satisfied that an emergency exists and it
is impracticable in the circumstances for a proclamation of the
premises or service as an approved mental health service to be
made by the Governor in Council in accordance with section 94.
Clause 34 inserts a new section 95 in the Principal Act to clarify that the
Secretary may engage medical practitioners by way of a contract
as well as employing them for the purposes of the Principal Act.
Clause 35 makes various amendments to section 120A of the Principal Act.
Sub-clause (1)(a) inserts a new definition of "public sector
mental health service" into section 120A(1). This new definition
is necessary for the amendment to section 120(3B) made by sub-
clause (6)(a) and is explained below.
Sub-clause (1)(b) clarifies that a person may be employed by or
in relation to a relevant psychiatric service, rather than just "in" a
relevant psychiatric service, which suggests that the person must
be physically located in the relevant psychiatric service.
An employee may be part of a mobile team attached to a relevant
psychiatric service.
Sub-clause (1)(c)(i) amends the definition of "relevant
psychiatric service" to provide that a person or body is only a
relevant psychiatric service to the extent that he, she or it
provides or operates one of the service types listed in that
definition. This definition is necessary because a legal entity,
such as a public hospital or denominational hospital, may operate
services other than those listed in the definition. The change to
this definition, in combination with the inclusion of the new
section 120A(2B) means that the giving of information to which
section 120A applies to a part of the legal entity that is not a
relevant psychiatric service, is a disclosure of that information
and section 120A applies to that disclosure.
Sub-clause (2) inserts a new section 120A(1A) which allows the
Governor in Council to declare a relevant psychiatric service to
be, either wholly or to the extent specified in the Order, a public
sector mental health service.
Sub-clause (4) inserts a new section 120A(2B) which clarifies
that section 120A applies only to the disclosure of information to
parties outside the relevant psychiatric service, or outside the part
of a larger entity that is a relevant psychiatric service. It clarifies
that section 120A does not apply to communications between
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staff of the same relevant psychiatric service as these are
governed by Health Privacy Principle 2 of the Health Records
Act 2001.
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Sub-clause (5)(b) substitutes a new sub-paragraph (ii) in section
120A(3)(e) to clarify that the electronic records system referred
to in this sub-paragraph is one that is established and maintained
by the Secretary, and that it is the Secretary who collects and
holds the information that is maintained within that electronic
records system. The new paragraph also clarifies, for the
avoidance of doubt, that section 120A(3) only applies to the part
of the electronic records system that is maintained for the
purposes of sharing of information between public sector mental
health services, and not any connected electronic system that is
only accessible by the service itself.
Sub-clause (6)(a) and (b) amends section 120A(3B) by replacing
the references to "approved mental health service" with
references to "public sector mental health service", which is
defined for the purposes of section 120A, and inserting a new
section 120A(3B)(ab). This amendment clarifies that all the
service elements of one public mental health service, which may
include an approved mental health service, clinics and mobile
teams, are able to access the electronic records system for the
purposes of providing treatment to public mental health clients.
The new section 120(3B)(ac) clarifies when the Secretary may
use information collected in accordance with
section 120A(3)(e)(ii).
Clause 36 inserts a transitional provision into the Principal Act stating that
current appointments to the Psychosurgery Review Board
continue to apply despite the amendment made by this Act to
clause 2(1)(a) of Schedule 3.
Clause 37 amends the provisions of the Principal Act applying to the
membership and procedures of the Mental Health Review Board
and the Psychosurgery Review Board.
Sub-clause (1) amends the Principal Act to provide that ordinary
members of the Mental Health Review Board may be appointed
for a term of up to 5 years.
Sub-clause (2) makes consequential amendments following on
from other amendments to the Principal Act.
Sub-clause (3)(a) and (b) substitutes consistent requirements for
the qualifications of the legal members of the Mental Health
Review Board and the Psychosurgery Review Board. Each such
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member must have been admitted to legal practice in an
Australian jurisdiction for not less than 5 years.
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Sub-clause (3)(c) amends the Principal Act to provide that
ordinary members of the Psychosurgery Review Board may be
appointed for a term of up to 5 years.
PART 4--AMENDMENT OF CORONERS ACT 1985
Clause 38 amends the definition of "reportable death" in the Coroners Act
1985. The death of a "person in care" is a reportable death.
The current definition of "person in care" includes any patient in
an approved mental health service. This is interpreted to include
persons on community treatment orders who are deemed to be
involuntary patients detained in an approved mental health
service. Given that this Act removes the concept of "deemed
detention" from the Principal Act, the definition of "reportable
death" has been amended to clarify that it includes the death of
any person who immediately before death was a patient within
the meaning of the Principal Act.
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