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Mental Health Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill.
Clause 2 is the commencement provision.
Subclause (1) provides that, other than subclauses (2) and (3),
the Bill comes into operation on 1 July 2014.
Subclauses (2) and (3) provide that amendments contained in
clauses 456 and 457 of the Bill, which are consequential
amendments that anticipate the repeal of the Police Regulation
Act 1958 and the Legal Profession Act 2004, do not take
effect unless and until those repeals are effective.
Clause 3 sets out the defined terms used in the Bill. Many of the defined
terms rely on cross reference to terms used in other legislation.
Those that are particular to the Bill include authorised
psychiatrist, bodily restraint, capacity to give informed
consent, chief psychiatrist, compulsory patient, consumer,
designated mental health service, electroconvulsive treatment,
forensic patient, inpatient, medical treatment, mental health
practitioner, mental illness, nominated person, restrictive
intervention, seclusion, security patient, treatment and
treatment criteria.
Clause 4 defines mental illness as a medical condition that is
characterised by a significant disturbance of thought, mood,
perception or memory.
571160 1 BILL LA INTRODUCTION 18/2/2014
Clause 5 sets out the treatment criteria. The treatment criteria are the
criteria to be considered by decision makers in determining
whether a Temporary Treatment Order or a Treatment Order
should be made in relation to a person.
Clause 6 defines treatment for the purposes of the Bill. Treatment is all
things done for a person in the course of exercise of
professional skills to remedy a person's mental illness or to
alleviate the symptoms and reduce the ill effects of a person's
mental illness. Treatment includes electroconvulsive treatment
and neurosurgery for mental illness.
Clause 7 defines medical treatment for the purposes of the Bill.
Medical treatment is treatment that is not treatment for mental
illness, and means any treatment by a registered medical
practitioner or registered dentist, the administration of a
pharmaceutical drug for which a prescription is required, and
any other treatment which is prescribed by the regulations to be
medical treatment for the purposes of the Act. Elsewhere the
Bill sets out the requirements for consent, including substituted
consent, under the Bill to medical treatment. The definition
expressly excludes a special procedure or medical research
procedure within the meaning of the Guardianship and
Administration Act 1986, so that substitute consent may not
be given in relation to either of these under the provisions of
this Bill. The definition excludes non-intrusive examination
for diagnostic purposes and first-aid treatment to avoid
unintended effects of applying the substituted consent
requirements to these, and excludes treatment for mental illness
or the effects of mental illness as this is defined separately.
Clause 8 provides that where any advice, notice, or information is given
to a patient under the Bill, the person giving that advice, notice
or information is to give an explanation, of the contents of 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.
The explanation is, whenever reasonable, to be given both
orally and in writing.
Clause 9 provides that the Bill is to bind the Crown.
2
PART 2--OBJECTIVES AND MENTAL HEALTH
PRINCIPLES
Clause 10 sets out the objectives of the Bill.
Clause 11 sets out the mental health principles to which a mental health
service provider must have regard in the provision of mental
health services.
The clause provides that any person performing a duty or
function or exercising a power under the Act must also do so
having regard to these principles.
PART 3--PROTECTION OF RIGHTS
Division 1--Statement of rights
Clause 12 states that a statement of rights must be in a form approved by
the Secretary. The statement sets out a person's rights while
being assessed or receiving treatment under the Bill and
contains information as to the process by which the person will
be assessed or receive treatment.
Clause 13 sets out how a statement of rights must be explained to the
person to whom it is given.
Division 2--Right to communicate
Clause 14 defines the term communicate for the purposes of this Division
which sets out an inpatient's right to communicate while
receiving treatment at a designated mental health service.
Clause 15 sets out an inpatient's general right to communicate, and
specifies in particular, that the inpatient has a right to
communicate for the purpose of seeking legal advice or
representation.
Clause 16 allows for an authorised psychiatrist to place restrictions on an
inpatient's right to communicate and sets out how and to what
extent this may be done.
Clause 17 sets out the persons whom an authorised psychiatrist must
notify once he or she makes a direction restricting an inpatient's
right to communicate.
3
Clause 18 states that the authorised psychiatrist who makes a direction
restricting an inpatient's right to communicate must review his
or her decision on a regular basis and immediately cease the
restriction if he or she is satisfied that it is no longer necessary.
Division 3--Advance statements
Clause 19 sets out what an advance statement is for the purposes of the
Bill.
Clause 20 states that an advance statement may be made at any time and
specifies the form the advance statement must take and when
an advance statement is effective.
Clause 21 sets out when an advance statement is revoked and the form the
revocation must take.
Clause 22 states that an advance statement must not be amended.
Instead, a person's new treatment preferences must be recorded
in a new advance statement made in accordance with the Bill.
Division 4--Nominated persons
Clause 23 specifies the role of a nominated person.
Clause 24 states that a person may nominate another person to be a
nominated person for himself or herself.
The clause sets out the form the nomination must take,
including that it must be witnessed, and when the nomination is
effective.
The clause provides that the nominated person must agree to
the nomination.
Clause 25 sets out when a nomination is revoked.
Clause 26 states that a person may revoke his or her nomination at any
time and sets out the form the revocation must take and how
the revocation must be made. A person who revokes a
nomination must take reasonable steps to inform the nominated
person of the revocation and, if the person is a patient, must
inform the authorised psychiatrist.
4
Clause 27 states that a nominated person may decline to act as a
nominated person at any time. A nominated person who
declines to continue being a nominated person must take
reasonable steps to inform the person who made the
nomination that he or she has declined to continue being a
nominated person and, if the person is a patient must inform
the authorised psychiatrist of the decision.
PART 4--COMPULSORY PATIENTS
Division 1--Assessment Orders
Clause 28 provides that Assessment Orders are made by a registered
medical practitioner or other mental health practitioner, as
defined in clause 3. The Assessment Order enables a person
subject to the Order to be compulsorily examined by an
authorised psychiatrist, either in the community (Community
Assessment Order) or at a designated mental health service
(Inpatient Assessment Order).
The clause provides that the purpose of the examination is for
the authorised psychiatrist to determine whether the treatment
criteria for the making of a Temporary Treatment Order apply
to the person.
Clause 29 sets out the criteria that must be satisfied before a person is
made subject to an Assessment Order.
Clause 30 sets out steps that must be taken before a registered medical
practitioner or mental health practitioner may make an
Assessment Order. The practitioner must examine the person,
be satisfied that the criteria apply and make the Assessment
Order within 24 hours after the examination taking place.
This clause provides that the practitioner may only make a
person subject to an Inpatient Assessment Order if satisfied
that the assessment cannot occur in the community.
Clause 31 specifies the contents of an Assessment Order.
Clause 32 sets out requirements regarding information to be provided to a
person made subject to an Assessment Order and to other
specified persons, regarding the Order.
5
Clause 33 provides that a person made subject to an Inpatient Assessment
Order must be taken to a designated mental health service as
soon as possible but not more than 72 hours after the Order is
made.
Clause 34 provides for the duration of Assessment Orders.
The clause provides that a Community Assessment Order
comes into force when it is made and remains in force for a
period of 24 hours unless it is extended or revoked.
It provides that an Inpatient Assessment Order comes into
force when it is made and remains in force for a period ending
24 hours after the person who is subject to the Order is
received at a designated mental health service, or a period
ending after 72 hours if the person who is subject to the Order
is not received at a designated mental health service within that
period, whichever is the later.
The clause also provides that after examining the person the
authorised psychiatrist may extend the duration of an
Assessment Order for a period of time up to 24 hours.
It specifies the grounds for an extension and that the duration
of an Assessment Order may not be extended more than twice.
Clause 35 provides for the variation of a Community Assessment Order
to an Inpatient Assessment Order, and an Inpatient Assessment
Order to a Community Assessment Order.
The clause also sets out requirements regarding information to
be provided to the person subject to the Order, and to other
specified persons, regarding the variation to the Order.
The clause also specifies that 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 there as soon as practicable after the Order is
varied.
Clause 36 provides that an authorised psychiatrist must examine the
person made subject to the Assessment Order as soon as
practicable and determine whether the Treatment Order criteria
apply to the person before the Assessment Order expires.
Clause 37 provides for the revocation or expiry of an Assessment Order
in specified circumstances.
6
Clause 38 provides that a person who is subject to an Assessment Order
must not be given treatment unless the person provides
informed consent or the criteria specified for urgent treatment
are met. It is not intended that a person on an Assessment
Order will be given treatment during the period of the
assessment. It is only in those circumstances where the person
consents or the criteria for urgent treatment are met that
treatment will be provided.
Division 2--Court Assessment Orders
Clause 39 provides for the examination by an authorised psychiatrist of a
person who is made subject to a Court Assessment Order under
Part 5 of the Sentencing Act 1991. The clause sets out the
time periods within which the examination and assessment of
the person on the Order must be completed.
Clause 40 provides for specified persons to be notified of the making of a
Court Assessment Order and specified information to be
provided to those persons and to the person made subject to the
Order.
Clause 41 provides that an authorised psychiatrist may vary a Community
Court Assessment Order to an Inpatient Court Assessment
Order, or an Inpatient Court Assessment Order to a Community
Court Assessment Order.
The clause provides that a Community Court Assessment
Order may only be varied to an Inpatient Court Assessment
Order if the authorised psychiatrist is satisfied that the
assessment of the person subject to the Order cannot occur in
the community.
The clause provides for the notification of the variation and the
provision of information about the variation of the Order to the
person subject to the Order and to other specified persons.
Clause 42 provides that a person who is subject to a Court Assessment
Order must not be given treatment unless the person provides
informed consent or the criteria specified for urgent treatment
are met or the person is subject to an existing Temporary
Treatment Order or Treatment Order or is made subject to a
Temporary Treatment Order under clause 46.
7
Clause 43 sets out the action to be taken by the authorised psychiatrist on
completing an assessment of a person on a Court Assessment
Order. This includes providing a copy of the assessment report
to the court.
Clause 44 makes it clear that an authorised psychiatrist may make a
Temporary Treatment Order in relation to a person who is on a
Court Assessment Order.
Division 3--Temporary Treatment Orders
Clause 45 provides for the making of Temporary Treatment Orders.
The Temporary Treatment Order is an Order made by an
authorised psychiatrist after assessing a person in accordance
with an Assessment Order or Court Assessment Order.
A Temporary Treatment Order allows the person to be treated
in the community, or to be taken to, and detained and treated
in, a designated mental health service. A Temporary
Treatment Order remains in force for a maximum of 28 days
unless it is revoked or expires under clause 55, 61 or 62.
Clause 46 sets out the circumstances in which the authorised psychiatrist
may make a Temporary Treatment Order. The authorised
psychiatrist must have examined the person and be satisfied
that the treatment criteria as defined in clause 5 apply to the
person. In determining whether the treatment criteria apply to
the person, the authorised psychiatrist must, to the extent that is
reasonable, take into account the views and preferences of the
person who is to be subject to the Order and the views of other
specified persons.
Clause 47 provides that the same authorised psychiatrist cannot make a
person subject to an Assessment Order and then as a
consequence of that Order make the person subject to a
Temporary Treatment Order.
Clause 48 provides that the authorised psychiatrist must determine
whether the Temporary Treatment Order is a Community
Temporary Treatment Order or an Inpatient Temporary
Treatment Order. The authorised psychiatrist may only make a
person subject to an Inpatient Temporary Treatment Order if
satisfied that the person cannot be treated in the community.
8
The clause provides that in determining what Order to make,
the authorised psychiatrist must, to the extent that it is
reasonable, have regard to the views and preferences of the
person who will be subject to the Order together with the views
of other specified persons.
Clause 49 specifies the contents of a Temporary Treatment Order.
Clause 50 sets out what notifications and information must be provided
regarding the Temporary Treatment Order both to the person
subject to the Order and to other specified persons.
The clause also specifies that a person who is made subject to
an Inpatient Temporary Treatment Order and who is not
already at a designated mental health service must be taken
there as soon as practicable.
Clause 51 provides for the duration of a Temporary Treatment Order.
The Order will remain in force for 28 days unless--
· it is revoked under clause 55 or 61 because the
treatment criteria no longer apply; or
· it expires under clause 62 when a Secure Treatment
Order or Court Secure Treatment Order is made; or
· a Treatment Order is made under clause 55.
Division 4--Treatment Orders
Clause 52 provides for the making of Treatment Orders. The Treatment
Order is an Order made by the Mental Health Tribunal that
allows a person to be treated in the community, or to be taken
to, and detained and treated in, a designated mental health
service.
Clause 53 provides that the Mental Health Tribunal must conduct a
hearing to determine whether to make a Treatment Order in
relation to a person who is subject to a Temporary Treatment
Order. The hearing must be conducted before the expiry of the
Temporary Treatment Order.
Clause 54 provides that an authorised psychiatrist may make an
application to the Mental Health Tribunal for a Treatment
Order in relation to a person already subject to a Treatment
Order.
9
The clause provides that before making the application the
authorised psychiatrist must examine the person and be
satisfied that the treatment criteria apply.
The clause provides that an application to the Mental Health
Tribunal by the authorised psychiatrist must be made within at
least 10 business days before the expiry of the Treatment Order
to which the person is currently subject. The principal registrar
of the Tribunal may accept an application made less than
10 days before the expiry of the Treatment Order if it is
reasonable to do so having regard to all of the circumstances.
The clause provides that the Tribunal must conduct a hearing to
determine whether to make a Treatment Order with regard to
the person.
Clause 55 sets out what the Mental Health Tribunal must do after
conducting a hearing regarding the making of a Treatment
Order.
The clause provides that the Tribunal must make a Treatment
Order if satisfied the treatment criteria apply to the person, or
revoke the Order to which the person is currently subject if not
satisfied the treatment criteria apply to the person.
The clause provides that if the Tribunal makes a Treatment
Order, the Order must state the duration of the Order and
whether it is a Community Treatment Order or an Inpatient
Treatment Order.
The clause provides that when determining whether to make a
Treatment Order and the duration and category of the Order,
the Mental Health Tribunal must, to the extent that it is
reasonable, have regard to the views and preferences of the
person who will be subject to the Treatment Order together
with the views of other specified persons.
The clause provides that the Mental Health Tribunal may only
make an Inpatient Treatment Order if satisfied that the
treatment of the person cannot be provided in the community.
Clause 56 sets out the required contents of a Treatment Order.
Clause 57 provides that the duration of a Treatment Order is the period
specified in the Order unless the Order is revoked by the
authorised psychiatrist under section 61 or by the Mental
Health Tribunal under section 55 or expires under section 62.
10
It provides that the maximum period that may be specified will
be different depending on whether a person is of or over
18 years of age and whether it is a Community Treatment order
or an Inpatient Treatment Order.
Division 5--Variation of Temporary Treatment Orders and
Treatment Orders
Clause 58 provides for the variation of Temporary Treatment Orders and
Treatment Orders. Each type of Order may be varied by an
authorised psychiatrist from a Community to an Inpatient
Order, and from an Inpatient to a Community Order.
The clause provides that a Community Order of either type
may only be varied to an Inpatient Order if the authorised
psychiatrist is satisfied that treatment cannot occur in the
community.
The clause provides that the variation of an Order does not
affect the duration of the Order.
The clause provides that, within 28 days after a Community
Treatment Order is varied to an Inpatient Treatment Order, the
Mental Health Tribunal must conduct a hearing to determine
whether to make a new Treatment Order, or whether to revoke
the Inpatient Treatment Order. If, at the end of the 28 day
period, that Inpatient Treatment Order has been varied back to
a Community Treatment Order, there is no requirement for the
Mental Health Tribunal to conduct a hearing.
The clause also specifies that a person whose Community
Temporary Treatment Order is varied to an Inpatient
Temporary Treatment Order, or whose Community Treatment
Order is varied to a Inpatient Treatment Order, and who is not
already at a designated mental health service, must be taken
there as soon as practicable after the Order is varied.
Clause 59 sets out what notifications and information are to be provided
regarding the variation of an Order, both to the person subject
to the varied Order and to other specified persons.
The clause provides that the authorised psychiatrist who varies
an Order must notify the Tribunal of the variation.
11
Division 6--Revocation and Expiry of Temporary Treatment
Orders and Treatment Orders.
Clause 60 provides that a person who is subject to a Temporary
Treatment Order or a Treatment Order may apply to the Mental
Health Tribunal at any time to have the Order revoked.
The clause also provides that specified persons can apply to the
Tribunal on behalf of the person who is subject to an Order to
have the Order revoked.
The clause provides that the Mental Health Tribunal must
conduct a hearing and determine the application as soon as
practicable and must either make an Order in relation to the
person if the treatment criteria apply or revoke the current
Order if they do not apply.
Clause 61 provides that an authorised psychiatrist who determines that the
treatment criteria for making a Temporary Treatment Order or
a Treatment Order do not apply to a person who is subject to
the Order must immediately revoke the Order.
Clause 62 provides for the expiry of a Temporary Treatment Order or a
Treatment Order. The clause provides that a Temporary
Treatment Order will expire 28 days after it is made, while a
Treatment Order will expire at the end of the period specified
in the Order. In addition, both a Temporary Treatment Order
and a Treatment Order will expire if--
· a Secure Treatment Order or Court Secure Treatment
Order is made in relation to a person who is subject to
the Temporary Treatment Order or Treatment Order; or
· the person who is subject to the Temporary Treatment
Order or Treatment Order 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.
Clause 63 sets out what notifications and information must be provided
regarding the revocation of an Order, both to the person who is
subject to the Order and to other specified persons.
The clause provides that if the Temporary Treatment Order or
Treatment Order is revoked, the authorised psychiatrist must
notify the Tribunal, unless the Tribunal revoked the Order.
12
Division 7--General provisions
Clause 64 provides for the authorised psychiatrist to grant leave of
absence from a designated mental health service to persons on
various Inpatient Orders. The leave may be granted for the
purpose of receiving treatment or medical treatment as
defined, or for any other purpose the authorised psychiatrist
considers appropriate.
The clause provides for the circumstances in which leave of
absence may be granted or varied, the duration of the leave and
the conditions of leave.
It also provides that in determining whether to grant leave, the
authorised psychiatrist must, to the extent that it is reasonable
in the circumstances, have regard to the views and preferences
of the person who may be granted leave of absence together
with the views of other specified persons.
The clause provides that 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.
It sets out the criteria of which the authorised psychiatrist must
be satisfied before revoking a leave of absence.
The clause sets out what notifications and information must be
given regarding the granting or revocation of leave, both to the
person subject to the Order and to other specified persons.
Clause 65 This clause allows for the authorised psychiatrist to vary the
Order to which a person is subject to allow the person to
receive treatment at a different designated mental health
service.
The clause applies in relation to an Assessment Order,
Inpatient Court Assessment Order, Temporary Treatment
Order or Treatment Order.
The clause sets out the circumstances in which the authorised
psychiatrist may vary the Order. The authorised psychiatrist of
the receiving designated mental health service must approve of
the variation.
The clause provides that the chief psychiatrist may direct an
authorised psychiatrist to vary an Order to specify that a
person's treatment will be provided by another designated
13
mental health service, and the grounds under which this
direction may be made.
It sets out that in varying or making a direction to vary an
Order under this clause, the authorised psychiatrist or chief
psychiatrist must take into account the views and preferences
of the person subject to the Order, and the views of other
specified persons.
The clause also provides for certain steps to be taken as
appropriate to the circumstances as soon as practicable after the
Order is varied. This includes informing the person subject to
the varied Order and in some cases arranging for him or her to
be taken to the receiving designated health service.
Clause 66 provides that within 20 business days of an Order being varied,
the person subject to the Order may apply to the Mental Health
Tribunal for a review of the decision to vary, or direct the
variation of, the Order.
The clause specifies other persons who may apply to the
Tribunal on behalf of the person subject to the Order for a
review of the decision to vary, or direct a variation of, the
Order.
The clause provides that on hearing an application for a review
of the decision to vary, or direct the variation of, the Order, the
Mental Health Tribunal may grant the application and direct
that the person be returned to the original designated health
service for assessment or treatment, or may refuse to grant the
application and direct the person remain subject to the Order as
varied.
Clause 67 This clause provides that an Assessment Order, a Court
Assessment Order, a Temporary Treatment Order or a
Treatment Order do not have effect while a person who is
subject to the Order is detained in custody.
The clause states that any of these Orders expires at the time it
would otherwise have expired despite any period during which
it has no effect.
The clause defines what detained in custody means for the
purposes of this clause.
14
PART 5--TREATMENT
Division 1--Capacity and Informed Consent
Clause 68 defines the meaning of capacity to give informed consent to
treatment under the Bill in subclause (1).
Subclause (2) sets out principles to guide a person who is
required to determine whether a person has capacity to give
informed consent to proposed treatment.
The principles state that the capacity to give informed consent
must be assessed at the time of each individual treatment
decision as capacity may change over time.
Clause 69 establishes the meaning of informed consent to treatment for
mental illness and medical treatment for the purposes of the
Bill.
The clause states that, among other things, in order for a person
to give informed consent a person must have capacity to make
a decision and have been given adequate information and a
reasonable opportunity to make the decision.
The clause sets out the information that must be given to a
person in order for him or her to be considered able to make an
informed decision about treatment.
The clause describes what it means for a person to be given a
reasonable opportunity to make a decision about treatment.
Clause 70 states that before any treatment or medical treatment is
administered the informed consent of the person to be treated
must be sought. The person seeking informed consent must
presume that the person to be treated has capacity to give
informed consent.
The clause provides that, if the person seeking informed
consent forms the opinion that, at the time he or she would be
seeking the consent, the person to be treated does not have
capacity to give informed consent, then informed consent does
not have to be sought.
15
Clause 71 establishes what is to happen if a person does not have capacity
to give informed consent to treatment, or has the capacity but
does not give informed consent.
This clause does not apply if the treatment proposed is
electroconvulsive treatment or neurosurgery, which are dealt
with in Divisions 5 and 6 of this Part respectively.
This clause provides that only the informed consent of the
person who is to be given the proposed treatment is relevant for
obtaining consent to treatment. The authorised psychiatrist is
not obliged to seek consent from any other person.
The intention is that in relation to the making of decisions
regarding treatment under this clause, there is no role for any
substitute decision makers.
The clause provides that if the person to be treated does not
have capacity to give informed consent to treatment, or has the
capacity but does not give informed consent, the authorised
psychiatrist may make the decision regarding treatment.
It provides that before deciding to treat the person, the
authorised psychiatrist must be satisfied that the proposed
treatment is the least restrictive way for the person to be
treated.
The clause requires that the authorised psychiatrist, in
determining if there is no less restrictive way for the person to
be treated, must, to the extent that it is reasonable in the
circumstances, have regard to the views and preferences of the
patient, the views of other specified persons and the likely
consequences for the patient if the proposed treatment does not
take place.
Division 2--Treatment
Clause 72 states that a patient is to be given treatment for his or her
mental illness in accordance with this Act.
Clause 73 provides for the circumstances in which an authorised
psychiatrist who is making treatment decisions may override
the preferences about treatment expressed in the patient's
advanced statement. It sets out actions to be taken by the
authorised psychiatrist.
16
Division 3--Medical Treatment
Clause 74 provides that if a patient gives informed consent to medical
treatment, that medical treatment may be administered to the
patient.
Medical treatment is defined in clause 3.
The clause provides that informed consent to medical treatment
must be obtained in accordance with clause 70.
Clause 75 provides for who may consent to medical treatment if the
patient does not have capacity to give informed consent.
The clause makes separate provision regarding consent to
medical treatment by a patient who is 18 years old or over, and
a patient who is under 18 years of age.
The clause specifies persons who may give consent to medical
treatment in descending order of priority and provides that the
authorised psychiatrist may consent if none of those of higher
priority have given consent.
Clause 76 sets out the requirements for an authorised psychiatrist who is
giving consent to medical treatment being administered to a
patient. These include having regard, to the extent that is
reasonable in the circumstances, to the views and preferences
of the patient and the views of other specified persons.
Clause 77 provides for the circumstances in which urgent medical
treatment may be administered to a patient without the consent
of the patient or of any of the persons specified in clause 75.
Division 4--Second psychiatric opinions
Clause 78 specifies who, for the purpose of this Division, is a patient
entitled to seek a second psychiatric opinion.
Clause 79 establishes that an entitled patient may seek a second
psychiatric opinion at any time.
The clause specifies who else may seek a second psychiatric
opinion in relation to an entitled patient.
The clause states that an authorised psychiatrist must take
reasonable steps to provide assistance to an entitled patient
who seeks assistance to obtain a second psychiatric opinion.
17
Clause 80 allows that a second psychiatric opinion under this Division
may be sought from any psychiatrist.
Clause 81 sets out the function of a psychiatrist giving a second
psychiatric opinion under this Division.
Clause 82 sets out the powers that may be exercised by the psychiatrist
giving a second psychiatric opinion under this Division.
Clause 83 provides that a member of staff of a designated mental health
service must give reasonable assistance to a psychiatrist
performing functions and exercising powers under this
Division.
Clause 84 provides that a psychiatrist who gives a second psychiatric
opinion must prepare a written report.
The clause sets out the required contents of the report, and
specifies the persons to whom the report must be given.
Clause 85 sets out the action to be taken by the authorised psychiatrist in
response to the report containing the second psychiatric
opinion.
The clause provides that if the report expresses the opinion that
the criteria for the relevant Order do not apply to the patient,
the authorised psychiatrist must examine the patient and
determine if the criteria apply.
The clause provides that if the authorised psychiatrist
determines that the criteria do apply, the authorised psychiatrist
must give the entitled patient an explanation of the
determination, and advise the patient that he or she has a right
to apply to the Tribunal for revocation of the Order.
Clause 86 sets out the action to be taken by the authorised psychiatrist if
the report containing a second psychiatric opinion recommends
changes to the patient's current treatment.
The clause provides that the authorised psychiatrist must
review the entitled patient's treatment and decide whether to
adopt any of the recommendations made in the report.
The clause provides that if the authorised psychiatrist decides
to adopt the recommendations, he or she must revise the
treatment.
18
The clause provides that if the authorised psychiatrist decides
not to adopt, or to adopt only some of, the recommendations,
he or she must give the reasons for this to the entitled patient,
and advise the patient that he or she may apply to the chief
psychiatrist for a review of the treatment.
Clause 87 provides that an entitled patient, or a person specified in
clause 79(2), may apply to the chief psychiatrist to review the
patient's treatment if the authorised psychiatrist decides to
adopt none or only some of the recommendations made in a
report made under clause 84.
The clause specifies the information that must be given to the
chief psychiatrist by the person seeking a review.
The clause provides that a member of staff of the designated
mental health service must provide any reasonable assistance
sought by a patient in making an application for a review of his
or her treatment.
The clause provides that the authorised psychiatrist may
continue to treat the patient while the review of the patient's
treatment is being conducted by the chief psychiatrist.
Clause 88 provides that the chief psychiatrist must review the treatment
of a patient within 10 business days of receiving a request for
review.
The clause sets out the powers of the chief psychiatrist required
to conduct a review. The chief psychiatrist may examine the
patient, access relevant health information held by the relevant
designated mental health service and consult the authorised
psychiatrist and other staff at the relevant designated mental
health service.
The clause provides that when deciding whether to recommend
any changes to the treatment of the patient, the chief
psychiatrist must have regard to the views and preferences of
the patient and the views of other specified persons.
It provides that the chief psychiatrist may direct the authorised
psychiatrist to change the treatment of the patient.
The clause provides that a direction made to the authorised
psychiatrist under this section is not limited to the
recommendations made in a report containing a second
psychiatric opinion.
19
The clause provides that the chief psychiatrist must notify the
patient and other specified persons in writing of the outcome of
the review.
Clause 89 makes provision for the entitled patient or other person who
applied for a review by the chief psychiatrist to withdraw that
application at any time. It specifies that the patient or other
person must advise, or arrange for the authorised psychiatrist to
advise, the chief psychiatrist of the withdrawal of the
application.
Division 5--Electroconvulsive treatment
Clause 90 defines young person for the purposes of this Division to mean
any person under the age of 18 years. This Division deals with
applications for electroconvulsive treatment in relation to all
young people under the age of 18 years whether the young
person is receiving mental health treatment voluntarily or as a
compulsory patient. This Division also deals with
electroconvulsive treatment for compulsory patients 18 years
of age or older.
Clause 91 defines for the purposes of the Bill the meaning of a course of
electroconvulsive treatment. Electroconvulsive treatment may
only be performed within the limitations set out in this clause.
Clause 92 sets out when electroconvulsive treatment may be performed.
The clause provides that in the case of any young person under
the age of 18, electroconvulsive therapy may only be
performed after the Mental Health Tribunal has given approval
for it.
The clause provides that if an adult patient with capacity to
give informed consent gives informed consent in writing the
treatment may be performed. In the case of an adult patient
who does not have capacity to give informed consent, the
treatment may only be given after the Tribunal has given
approval for it.
The effect of this clause is that if a patient or young person
with capacity does not consent to electroconvulsive treatment,
the electroconvulsive treatment cannot be performed.
As is the case with other forms of treatment, it is only the
consent of the patient who is to receive the treatment which is
20
relevant for obtaining consent to electroconvulsive treatment.
There is no role for substitute decision makers.
Clause 93 sets out the procedure for an application to the Tribunal by the
authorised psychiatrist to perform electroconvulsive treatment
on a patient who is not a young person.
The clause provides that the authorised psychiatrist must be
satisfied that the patient does not have capacity to consent to
treatment and that there is no less restrictive way to treat the
patient.
The clause provides that in determining whether there is no less
restrictive way to treat the patient, the authorised psychiatrist
must have regard, to the extent that is reasonable in the
circumstances, to the views and preferences of the patient and
to the views of other specified persons.
The clause provides that the authorised psychiatrist may make
further application to the Tribunal during or after a course of
electroconvulsive treatment is performed on a patient.
Clause 94 provides in subclause (1) that the authorised psychiatrist may
make an application to the Tribunal to perform a course of
electroconvulsive treatment on a young person who is a patient.
Subclause (1) provides that the authorised psychiatrist may
make an application to the Tribunal if the young person who is
a patient has given informed consent in writing to the
treatment, or if the young person is a patient and does not have
capacity to give informed consent but the authorised
psychiatrist is satisfied there is no less restrictive way for the
young person to be treated.
Subclause (2) provides that 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. It provides that the application may be made if the
young person has given informed consent in writing to the
treatment or, if the young person does not have capacity to give
informed consent, a person who has the legal authority to
consent to treatment for that young person who is not a patient
has given informed consent. The psychiatrist must be satisfied
that there is no less restrictive way for the young person to be
treated.
21
Subclause (3) provides that in determining there is no less
restrictive way to treat the young person, the authorised
psychiatrist or psychiatrist must to the extent that it is
reasonable in the circumstances have regard to the views and
preferences of the young person and the views of other
specified persons.
Clause 95 provides for the procedure of the Tribunal when dealing with
applications for electroconvulsive treatment.
The clause provides that a hearing must be listed and
completed as soon as is practicable and within 5 business days
of receiving an application.
The clause makes for provision for application to be made for
an urgent hearing is specified circumstances. A hearing must
be held and completed as soon as is practicable after receipt of
a request for an urgent hearing.
Clause 96 sets out the powers of the Tribunal in respect of applications
for electroconvulsive treatment.
The clause sets out the factors of which the Tribunal must be
satisfied before granting or refusing to grant the various types
of application.
The clause specifies what the Tribunal must, to the extent that
it reasonable in the circumstances, have regard to when
determining if there is no less restrictive way to treat a patient
or young person.
It specifies the persons who must be notified by the Tribunal of
the Tribunal's decision.
Clause 97 provides that if the Tribunal grants an application for
electroconvulsive treatment, the Tribunal must make an Order
detailing the number of treatments and the date by which the
treatment must be completed, in accordance with the
limitations specified in clause 91.
Clause 98 sets out the circumstances in which electroconvulsive treatment
must not be performed, including when consent has been
withdrawn.
Clause 99 provides that the authorised psychiatrist must provide a report
to the chief psychiatrist regarding electroconvulsive treatment
performed at the designated mental health service, regardless
22
of whether it is performed on a compulsory or voluntary basis.
The report must contain the matters requested by the chief
psychiatrist and be provided within the time requested by the
chief psychiatrist.
Division 6--Neurosurgery for mental illness
Clause 100 provides that neurosurgery must not be performed on a person
unless the Tribunal has approved an application made under
this clause.
The clause provides that a psychiatrist may apply to the
Tribunal for approval to arrange for the performance of
neurosurgery on a person if the person has given informed
consent in writing to the treatment. As is the case with other
forms of treatment, it is only the consent of the person on
whom the neurosurgery is to be performed that is relevant for
obtaining consent to neurosurgery. There is no role for
substitute decision makers.
Clause 101 provides that the Tribunal must list and hear an application for
neurosurgery within 30 business days after receipt of the
application.
Clause 102 provides that the Tribunal may either grant the application for
the performance of neurosurgery or refuse to grant the
application.
The clause sets out the factors of which the Tribunal must be
satisfied before granting an application. One of these factors is
that the treatment will benefit the person and the clause sets out
the factors that the Tribunal must take into account when
deciding if the treatment will benefit the person.
Clause 103 provides that the Tribunal must give notice of its decision on
an application to perform neurosurgery to specified persons.
Clause 104 provides that if the Tribunal grants an application to perform
neurosurgery and the neurosurgery is performed, the
psychiatrist who made the application or the psychiatrist who
performed the treatment must provide the chief psychiatrist
with a written report within the time specified in the clause.
The chief psychiatrist may require the psychiatrist who gave
the report to provide further information.
23
PART 6--RESTRICTIVE INTERVENTIONS
Division 1--General
Clause 105 provides that restrictive interventions may only be used on a
person who is receiving mental health services in a designated
mental health service. A restrictive intervention may only be
used after all other reasonable and less restrictive options have
been tried, or considered, and have found to be unsuitable in
the circumstances.
Clause 106 requires the person who has authorised the use of a restrictive
intervention on a person under this Part, to ensure that the
person receiving the restrictive intervention has their needs met
and their dignity protected by the provision of appropriate
facilities and supplies during the time that the restrictive
intervention is used on the person.
Clause 107 requires that when a restrictive intervention is used on a person
under this Part, as soon as practicable after the commencement,
an authorised psychiatrist must notify specified persons that a
restrictive intervention has been used on the person, the nature
of the restrictive intervention and the reason for using it.
Clause 108 provides that when a restrictive intervention is used under this
Part, a written report must be provided to the chief psychiatrist
on the use of the restrictive intervention. The chief psychiatrist
will determine what content must be provided in the report and
the timeframes for providing the report to the chief psychiatrist.
Clause 109 requires a person who may authorise the use of a restrictive
intervention, to immediately take steps to release a person from
restrictive intervention if satisfied the restrictive intervention is
no longer necessary.
Division 2--Seclusion
Clause 110 describes when seclusion, a type of restrictive intervention,
may be used on a person. Seclusion is a defined term and may
only be used on a person who is receiving mental health
services in a designated mental health service. The criterion
for using seclusion on a person are that seclusion is necessary
to prevent imminent and serious harm to the person or another
person.
24
Clause 111 requires the use of seclusion on a person to be authorised by an
authorised psychiatrist, or if an authorised psychiatrist is not
available, a registered medical practitioner or the senior
registered nurse on duty.
The clause sets out requirements to be complied with if a
registered medical practitioner or a senior registered nurse
authorises the use of seclusion. An authorised psychiatrist or a
registered medical practitioner may authorise the continued use
of the seclusion if satisfied that continued use of seclusion on
the person is necessary.
Clause 112 provides the requirements for monitoring of a person who is
kept in seclusion.
Division 3--Bodily restraint
Clause 113 describes when bodily restraint, a type of restrictive
intervention, may be used on a person. Bodily restraint is a
defined term and may only be used on a person who is
receiving mental health services in a designated mental health
service. The criteria for using bodily restraint on a person are
if bodily restraint is necessary to prevent imminent and serious
harm to the person or another person or to administer treatment
or medical treatment to the person.
Clause 114 requires the use of bodily restraint on a person to be authorised
by an authorised psychiatrist, or if an authorised psychiatrist is
not available, a registered medical practitioner or the senior
registered nurse on duty.
The clause sets out requirements to be complied with if a
registered medical practitioner or a senior registered nurse
authorises the use of bodily restraint. An authorised
psychiatrist or a registered medical practitioner may authorise
the continued use of the bodily restraint if satisfied that
continued use of bodily restraint on the person is necessary.
Clause 115 provides for the use of bodily restraint (in the form of a
physical restraint only) without authorisation in urgent
situations. A registered nurse may approve the use of bodily
restraint if the bodily restraint is necessary as a matter of
urgency to prevent imminent and serious harm to the person or
another person and a person who may authorise the use of
bodily restraint under section 114 is not immediately available.
25
The clause sets out requirements to be complied with if a
registered nurse authorises the use of bodily restraint.
Clause 116 provides the requirements for monitoring of a person on whom
bodily restraint is used.
PART 7--Administration
Division 1--The Secretary
Clause 117 sets out the role of the Secretary to the Department of Health
under the Bill.
Clause 118 sets out the functions of the Secretary under the Bill.
Division 2--The chief psychiatrist
Clause 119 provides for the appointment of a chief psychiatrist.
The clause states that the Secretary may appoint a psychiatrist
to be the chief psychiatrist, if satisfied that the person has the
appropriate knowledge and experience to perform the functions
and exercise the powers of the chief psychiatrist under the Bill.
The appointment is under Part 3 of the Public Administration
Act 2004.
The clause provides that the chief psychiatrist is subject to the
direction and control of the Secretary, and has the duties,
powers and functions conferred under the Bill or any other Act.
Clause 120 sets out the role of the chief psychiatrist.
Clause 121 sets out the functions of the chief psychiatrist.
Clause 122 enables the chief psychiatrist to conduct an investigation into
the provision of mental health services by a mental health
provider, either on his or her own initiative or at the request of
the Secretary, if the chief psychiatrist or Secretary is of the
view that the health, safety or wellbeing of any person is or
was endangered as a result of those services.
The clause provides that the investigation may include an
assessment of the quality and safety of mental health services
provided by a mental health service provider; and a
determination of whether those services are being provided in
26
accordance with various specified requirements established
under the Bill.
The clause provides that an investigation may relate to any
aspect of the mental health services provided by a mental
health service provider, or alternatively, to the mental health
services provided to a specified person.
The clause provides that the chief psychiatrist is required to
give written notice of an investigation to the relevant mental
health service provider. However, the chief psychiatrist may
dispense with doing so if he or she is of the opinion that it is
necessary in the circumstances.
The clause provides that the process for conducting an
investigation is at the discretion of the chief psychiatrist.
Clause 123 allows the chief psychiatrist, or an authorised officer acting
under the direction of the chief psychiatrist, to enter the
premises of a mental health service provider for the purpose of
conducting an investigation, clinical review or clinical practice
audit or performing any other function of the chief psychiatrist
under the Bill or the regulations.
The clause sets out the actions that may be taken by the chief
psychiatrist or authorised officer upon entering the premises.
Clause 124 allows the chief psychiatrist, or an authorised officer acting
under the direction of the chief psychiatrist, to issue written
directions to a member of staff of a mental health service
provider. A direction may be issued for the purpose of
conducting an investigation, clinical review or clinical practice
audit, or performing any other function of the chief psychiatrist
under the Bill or the regulations, and may direct the member of
staff to produce a document or to answer questions.
Clause 125 establishes a requirement for staff members of a mental health
service provider to provide reasonable assistance to the chief
psychiatrist, or an authorised officer acting under the direction
of the chief psychiatrist.
Clause 126 provides for the chief psychiatrist to report on an investigation
conducted under the Bill.
27
The clause requires the chief psychiatrist to prepare a report
after conducting an investigation under clause 122, as soon as
practicable after completing the investigation.
It provides that the report must specify the findings made by
the chief psychiatrist from the investigation, and may include
recommendations or directions addressed to the mental
health service provider who was subject to the investigation.
The recommendations and directions may be for the purpose of
improving the quality and safety of mental health services
provided to a specified person or to persons generally, or for
the purposes of assisting the mental health service provider to
comply with the Bill, or with regulations or Codes of Practice
made under the Bill.
The clause requires the chief psychiatrist to provide a copy of
the report to the mental health service provider who is the
subject of the report.
The clause requires a mental health service provider to respond
in writing to a direction or recommendation contained in a
report, within 30 days of receiving the report, specifying what
action has been or will be taken to implement the direction or
recommendation.
Clause 127 requires the chief psychiatrist to provide to the Secretary a
copy of any report by the chief psychiatrist and any response
by a mental health service provider that is produced pursuant to
clause 126.
Clause 128 allows the Secretary to publish any report or response produced
pursuant to clause 126, if the Secretary is of the opinion that
publication is in the public interest, but does not allow the
Secretary to publish material that identifies a person unless that
person has given written consent.
Clause 129 allows the chief psychiatrist to give written directions to mental
health service providers, following an investigation under
clause 122. Directions may be given: to improve the quality
and safety of mental health services provided to a specified
person or to a person generally; or to ensure that the provision
of mental health services by the mental health service provider
complies with the Bill and with regulations or Codes of
Practice made under the Bill.
28
The clause requires that the chief psychiatrist take reasonable
steps to notify specified parties of any direction made.
Clause 130 allows the chief psychiatrist to conduct a clinical review of one
or more specified mental health service providers, to identify
processes and practices that need to be changed in order to
improve the quality and safety of mental health services being
provided. The process for conducting a review is at the
discretion of the chief psychiatrist.
Clause 131 requires the chief psychiatrist to give written notice of an
intention to conduct a clinical review, together with other
specified information to the relevant mental health service
provider.
Clause 132 requires the chief psychiatrist to prepare a report of the findings
of a clinical review. The report may include such
recommendations as the chief psychiatrist considers
appropriate to improve the quality and safety of mental health
services. A copy of the report is to be provided to the relevant
mental health service provider as soon as practicable after the
audit is completed.
The clause requires the mental health service provider to
provide a written response to any recommendation, within
30 days of having received the report, specifying what action
has been or will be taken in relation to the recommendation.
The clause allows the chief psychiatrist to continue to monitor
a mental health service provider after receiving the required
response, including making requests for further information or
conducting a further review.
Clause 133 allows the chief psychiatrist to issue standards, guidelines or
practice directions, to address systemic issues identified in a
clinical review and to improve the quality and safety of mental
health services.
Clause 134 allows the chief psychiatrist to 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
provider, on his or her own initiative or at the request of the
Secretary. The purpose of the audit is to identify systemic
issues and trends that need to be addressed to improve the
quality and safety of the mental health services being provided.
29
Clause 135 requires the chief psychiatrist to make a record of the scope,
objectives and duration of a clinical practice audit, before
commencing the audit.
Clause 136 allows the chief psychiatrist to produce an interim report in the
course of a clinical practice audit, and requires that the chief
psychiatrist produce a report as soon as practicable after
completing an audit that outlines the findings of the chief
psychiatrist from the audit.
Clause 137 requires that the chief psychiatrist provide to the Secretary a
copy of any interim report or report produced in relation to a
clinical practice audit. The copy provided must not contain
any information that identifies any person.
Clause 138 allows the Secretary to publish a report provided by the chief
psychiatrist from a clinical practice audit, if of the opinion that
it is in the public interest to do so.
Clause 139 allows the chief psychiatrist to prepare and issue guidelines,
standards or practice directions to address systemic issues
identified during a clinical practice audit, and to improve the
standard and quality of mental health services provided by
mental health service providers.
Clause 140 establishes secrecy and confidentiality for information gained
or conveyed during a clinical practice audit or a clinical review
that may identify a mental health service provider or any
person.
The clause prohibits the use, disclosure or making of a record
of the identifying information, except in the performance of a
function under the Bill relating to the audit or review.
The prohibition applies to any person who is or has been the
chief psychiatrist, or who is or has been employed or engaged
to assist the chief psychiatrist in the performance of its duties,
powers or functions under the Bill. Disclosure to the Auditor-
General under section 12 of the Audit Act 1994 is also
prohibited.
The clause allows the chief psychiatrist to record, use or
disclose information from an audit or review, despite the
prohibition, if satisfied that the recording, use or disclosure is
necessary to prevent serious or imminent threat of harm to the
health and safety of a person.
30
The clause provides that persons subject to the prohibition may
not be required to produce documents or disclose information
obtained during an audit or a review, to a court, tribunal,
agency or board, and are not required to provide access to such
information or documents under the Health Records Act 2001
or Freedom of Information Act 1982.
Clause 141 establishes secrecy and confidentiality for documents arising
from clinical practice audits and clinical reviews.
The clause provides that a person cannot be required to
produce before a court, tribunal or board, a document that she
or he produced solely for the purpose of a review or audit, and
which was provided in the course of the review or audit.
The clause provides that evidence of information or reports
obtained by or in the possession of the chief psychiatrist in the
course of an audit or review are not admissible in legal
proceedings, except where it relates to information or reports
published by the Secretary.
The clause provides that obligations to provide access to
documents under the Freedom of Information Act 1982 and
the Health Records Act 2001 do not apply in respect of the
documents dealt with in this clause.
Clause 142 provides for the employment of persons with appropriate
experience to assist the chief psychiatrist in the performance of
duties and functions and exercise of powers under the Bill.
Such employees are to be employed under Part 3 of the Public
Administration Act 2004.
Clause 143 allows the Secretary to enter into agreements or arrangements
for the purpose of obtaining appropriate expertise to assist the
chief psychiatrist to perform his or her functions and duties and
exercise his or her powers under the Bill.
Clause 144 allows the chief psychiatrist to delegate any power, duty or
function of the chief psychiatrist under the Bill, other than the
power of delegation, to a person who is a psychiatrist and
who is either employed under clause 142 or engaged under
clause 143.
31
Clause 145 requires the chief psychiatrist to submit an annual report to
the Secretary, as soon as practicable after the end of
each financial year but no later than 31 October of the
following year. The report must contain--
· information on the operations and activities
undertaken by the chief psychiatrist during the
relevant financial year; and
· an analysis of the data and information reported by
the chief psychiatrist during the relevant financial
year.
The clause requires the Secretary to publish the report on the
Department's internet website as soon as practicable after
receiving the report.
Division 3--Authorised officers
Clause 146 allows the chief psychiatrist to appoint as an authorised officer
a person employed under Part 3 of the Public Administration
Act 2004, or engaged under clause 143, if satisfied that the
person has the appropriate knowledge and experience.
The chief psychiatrist may issue a direction to an authorised
officer regarding the performance of the officer's functions or
duties or the exercise of the officer's powers.
Clause 147 requires the chief psychiatrist to issue an identity card to each
authorised officer, and stipulates physical requirements for
each card.
Clause 148 requires an authorised officer to produce his or her identity
card for inspection before exercising any power under the Bill
or regulations and when asked to do so by the occupier of any
premises during the exercise of any power, unless it is
impracticable to do so.
Division 4--Designated mental health services
Clause 149 allows the Secretary to declare any public hospital or public
health service (as defined in the Health Services Act 1988) to
be a designated mental health service, for a period of up to 28
days, if satisfied an emergency exists. If the Secretary is
satisfied the emergency continues a declaration can be made
32
for a further period or periods. The meaning of designated
mental health service is a defined in clause 3.
Clause 150 requires the governing body of a designated mental health
service to appoint a psychiatrist as authorised psychiatrist for
the designated mental health service, and allows the
appointment of as many authorised psychiatrists as the
designated mental health service requires. The authorised
psychiatrist has the powers and functions conferred under the
Bill or any other Act. The governing body is required to notify
the chief psychiatrist and Mental Health Tribunal of the
appointment of any authorised psychiatrist.
Clause 151 establishes powers of delegation for an authorised psychiatrist.
Subclause (1) allows an authorised psychiatrist to delegate to a
specified list of persons any function, duty or power of the
authorised psychiatrist, except the power of delegation.
Subclause (2) allows an authorised psychiatrist to delegate to a
registered medical practitioner certain specified powers, duties
and functions of the authorised psychiatrist relating to
Assessment Orders.
Subclause (3) provides that a delegation under subclause (2)
may be made for a maximum of 12 months, but may be
renewed.
Subclause (4) requires that the exercise or performance of a
power, duty or function delegated under subclause (2) be
reviewed by the delegating authorised psychiatrist on a regular
basis.
PART 8--MENTAL HEALTH TRIBUNAL
Division 1--Establishment of the Mental Health Tribunal
Clause 152 establishes the Mental Health Tribunal.
Clause 153 sets out the functions of the Mental Health Tribunal, which
include hearing and determining specified matters and
applications under the Bill.
Clause 154 provides that the Mental Health Tribunal has all the powers
necessary or convenient to enable it to perform its functions.
33
Clause 155 Subclauses (1) and (2) establish statutory protection and
immunity for members of the Mental Health Tribunal and legal
practitioners appearing before it, equivalent to the protection
and immunity applicable to Judges and legal practitioners in
the Supreme Court of Victoria.
Subclause (3) provides that a person appearing before the
Mental Health Tribunal as a witness is subject to the same
protections as a witness in proceedings before the Supreme
Court, and is subject to the same liabilities as a witness in the
Supreme Court in addition to any liabilities provided for in the
Bill.
Division 2--Membership of the Tribunal
Clause 156 stipulates that the Mental Health Tribunal will consist of a
President, a Deputy President, senior members and ordinary
members.
Clause 157 provides for the appointment of a President of the Mental
Health Tribunal, by the Governor in Council on the
recommendation of the Minister. The person appointed must
be eligible for appointment as a legal member. The term of
appointment can be no more than five years but the President is
eligible for reappointment.
The clause provides for entitlements in relation to
superannuation to continue throughout the period of service as
President for a person who was an officer under the State
Superannuation Act 1988 immediately before appointment.
The clause allows the President to engage in professional
practice or employment outside the office of President if she or
he has the consent of the Minister and complies with any
conditions imposed by the Minister.
Clause 158 provides for the appointment of a Deputy President of the
Mental Health Tribunal, by the Governor in Council on the
recommendation of the Minister. The person appointed must
be eligible for appointment as a legal member. The term of
appointment can be no more than five years but the Deputy
President is eligible for reappointment.
The clause provides for entitlements in relation to
superannuation to continue throughout the period of service as
Deputy President for a person who was an officer under the
34
State Superannuation Act 1988 immediately before
appointment.
The clause allows the Deputy President to engage in
professional practice or employment outside the office of
Deputy President, if he or she has the consent of the President
and complies with any conditions imposed by the President.
Clause 159 provides for the appointment of senior members and ordinary
members of the Mental Health Tribunal by the Governor in
Council on the recommendation of the Minister.
The clause provides that the ordinary and senior members of
the Tribunal are the legal members, psychiatrist members,
registered medical practitioner members and community
members.
The clause allows for the appointment of as many ordinary and
senior members as required for the proper functioning of the
Tribunal.
The clause provides that a senior member can be full time or
part time while an ordinary member can be full time, part time
or sessional. A member is appointed for a period of not more
than five years and is eligible for re-appointment.
The clause allows a senior or ordinary member to engage in
professional practice or paid employment outside their office as
a member of the Tribunal, if she or he has the consent of the
President and complies with any conditions imposed by the
President.
Clause 160 sets out when a person is eligible for appointment as a legal
member of the Mental Health Tribunal.
Clause 161 sets out when a person is eligible for appointment as a
psychiatrist member of the Mental Health Tribunal.
Clause 162 sets out when a person is eligible for appointment as a
registered medical practitioner member of the Mental Health
Tribunal.
Clause 163 sets out when a person is eligible for appointment as a
community member of the Mental Health Tribunal.
Clause 164 provides for the Deputy President to act as President and for
the President to appoint an acting Deputy President.
35
Clause 165 provides for members of the Mental Health Tribunal to receive
remuneration and allowances as prescribed.
Clause 166 stipulates that the Public Administration Act 2004 (which
provides for the employment of persons in the Victorian public
sector) does not apply to members of the Mental Health
Tribunal.
Clause 167 provides that a member of the Mental Health Tribunal may
resign, by signed written notice delivered to the Governor in
Council.
Clause 168 allows the Minister to suspend a member of the Mental Health
Tribunal from office, on the recommendation of the President,
if satisfied that there may be grounds under clause 170(2) for
removing the person from office.
The clause allows the Governor in Council to suspend the
President from office, on the recommendation of the Minister,
if satisfied that there may be grounds for removing the
President from office under clause 170(2). If the President is
suspended from office the Minister must cause a statement of
reasons for the suspension to be tabled in each House of
Parliament within 7 sitting days of the suspension.
The clause provides that any member suspended from office
continues to be entitled to the prescribed remuneration and
allowances.
Clause 169 provides that the Minister may appoint an independent person
to investigate the conduct of any member of the Mental Health
Tribunal who has been suspended from office, if the Minister
considers an investigation is required. Any investigation must
be commenced as soon as practicable after the suspension.
The investigator must report to the Minister with any
appropriate recommendations, and provide a copy of the report
to the President and to the person whose conduct was subject to
the investigation. The report may include a recommendation
that the person be removed from office.
Clause 170 allows the Governor in Council to remove a member of the
Mental Health Tribunal from office on certain specified
grounds, including: insolvency, ineligibility, failure to disclose
a conflict of interest, a finding of misconduct after an
36
investigation under clause 169, or inability to perform duties
under the Bill.
The clause provides that the office of a member becomes
vacant when the person dies, resigns or is removed from office,
or when the term of their appointment expires and he or she is
not reappointed.
Division 3--Administration
Clause 171 provides for the employment of an executive officer, a
principal registrar, and other registrars and staff as necessary,
to assist the administration of the Mental Health Tribunal.
These persons are to be employed under the Public
Administration Act 2004.
Clause 172 outlines the functions of the principal registrar and stipulates
that the principal registrar is subject to the direction of the
President.
Clause 173 outlines the functions of registrars and stipulates that each
registrar is subject to the direction of the principal registrar.
Clause 174 allows the President and Deputy President to delegate their
powers and functions under the Bill, except the power of
delegation, to any legal member of the Mental Health Tribunal.
The clause allows the President and Deputy President to
delegate their powers and functions under the Bill to the
principal registrar, except the power of delegation or the
powers or functions relating to hearing and determining matters
or applications.
Clause 175 makes it an offence for a member, an executive officer,
principal registrar, registrar or any other member of staff of the
Mental Health Tribunal to disclose, communicate or make a
record of information that was obtained in the course of
performing their duties or exercising their powers under the
Bill, which relates to the affairs of a natural person and which
may identify that person.
The clause provides that an offence is not committed if the
disclosure, recording or communication of the information--
37
· is necessary for the purpose of or in connection with
the performance of a function or duty or the exercise
of a power, under the Act; or
· is necessary for the purpose of a criminal proceeding
or to initiate proceedings under the Act; or
· is done with the consent of the person to whom the
information relates.
The clause provides a penalty of 60 penalty units.
Clause 176 requires the Mental Health Tribunal to maintain a register of
proceedings.
The clause allows a party to a proceeding before the Tribunal
to inspect the part of the register that relates to that proceeding,
free of charge.
The clause allows any other party to inspect or obtain an
extract from the registrar, for a fee, provided the extract does
not contain information that identifies the person who is the
subject of the extract, and the President has determined that the
party has a proper purpose for inspecting or obtaining the
extract.
The clause allows extracts to be provided that identify the party
who is the subject of the extract if that party has consented or if
the inspection is for certain specified purposes.
Clause 177 requires the Mental Health Tribunal to submit an annual report
to the Minister, as soon as practicable after the end of each
financial year but no later than 31 October of the following
year. The report must contain: a review of the operation of the
Tribunal during the 12 months ending on the preceding
30 June, and any other matters prescribed in the regulations.
The clause provides that the Minister must cause the annual
report to be tabled in Parliament.
Division 4--Tribunal divisions
Clause 178 provides that there will be a general and a special division of
the Mental Health Tribunal. The special division is to hear and
determine all applications for the performance of
electroconvulsive treatment or neurosurgery for mental illness.
38
The general division is to hear and determine all other matters
within the jurisdiction of the Tribunal.
Clause 179 The clause provides that for each proceeding, the Mental
Health Tribunal will be constituted by three members selected
by the President. For a proceeding before the general division,
the three members must be a legal member, a psychiatrist or
registered medical practitioner member, and a community
member. For a proceeding before the special division, the
three members must be a legal member, a psychiatrist member
and a community member. For the purposes of these
requirements the President and the Deputy President are taken
to be legal members.
Clause 180 The clause stipulates that the presiding member in a proceeding
of the Mental Health Tribunal is the legal member of the
Tribunal as constituted for that proceeding.
Division 5--Procedure of Tribunal
Clause 181 provides that the Mental Health Tribunal may regulate its own
procedure and--
· is not bound by the rules of evidence; and
· is bound by the rules of procedural fairness; and
· may inform itself on any matter as it sees fit; and
· must conduct proceedings as expeditiously and with
as little formality and technicality as the Act,
regulations, rules and the matters before it permit.
Clause 182 provides that the parties to a proceeding before the Mental
Health Tribunal are: the person who is subject to the
proceeding; that person's treating psychiatrist; any person who
has successfully applied to be a party to the proceeding; and
any person joined as a party under clause 183.
Clause 183 provides for a person to be joined as a party to a proceeding of
the Mental Health Tribunal. The Tribunal is empowered to
make an order joining a party if satisfied that it is desirable to
do so. The principal registrar may, before the commencement
of a hearing, grant an application from a person to be joined as
a party. The President, Deputy President or a member of the
39
Tribunal of a class specified in the rules may join a person as a
party on the papers.
Clause 184 establishes that the person who is the subject of a proceeding of
the Mental Health Tribunal has the right to appear before the
Tribunal. The person may be represented by any other person
authorised by the first-mentioned person to do so, and if the
person who is the subject of the proceeding is not represented,
the Tribunal may appoint another person to represent him or
her.
The clause provides that the Tribunal may exclude a person
who is disruptive at the hearing.
Clause 185 establishes that a party may be assisted at a hearing of the
Mental Health Tribunal by an interpreter or by any person who
is necessary to make the hearing comprehensible to that party.
The Tribunal is empowered to appoint or call for the assistance
of an interpreter for the purposes of a hearing, but may direct
that a hearing continue without the assistance of an interpreter
if satisfied that it is appropriate in the circumstances.
Clause 186 requires that an application to the Mental Health Tribunal must
comply with the requirements that are set out in the rules made
under the Bill regarding form, content and manner of
lodgement.
Clause 187 sets out when an application made to the Mental Health
Tribunal may be rejected.
The principal registrar may reject an application if it: is made
by a person not entitled under the Bill to do so; is lodged
outside the timeframes set out in the Bill for the making of that
application; or does not comply with the requirements
established under the Bill, regulations and rules.
If the principal registrar decides to reject an application, the
applicant may request that the President review the decision of
the principal registrar. The President must conduct the review
on the papers and may either confirm the principal registrar's
decision or direct the principal registrar to accept the
application. The principal registrar may also refer an
application directly to the President for a review.
40
Clause 188 empowers the Mental Health Tribunal to grant leave to a party
who has made an application to the Mental Health Tribunal to
withdraw the application, prior to the application being
determined.
The clause allows the Tribunal to make an order summarily
striking out a proceeding if the applicant fails to appear.
The clause provides that the powers of the Tribunal under this
clause can be exercised by the Tribunal as constituted for the
proceeding or by the Principal Registrar.
The clause requires the Principal Registrar to notify all parties
to a proceeding in writing of a decision by the Tribunal under
this clause.
Clause 189 requires the Mental Health Tribunal to list a matter for hearing
and issue written notification of that hearing as soon as
practicable to specified persons. The Tribunal may dispense
with giving the required notice if satisfied that it is appropriate
to do so in the circumstances.
The clause stipulates that a hearing, proceeding or
determination of the Tribunal is not invalid or affected by
reason only of a failure to give notice.
Clause 190 provides that the Mental Health Tribunal may hear and
determine concurrently multiple matters that relate to a single
person.
Clause 191 allows a person who is the subject of a proceeding of the
Mental Health Tribunal to access documents that are in the
possession of a designated mental health service and relate to
the proceeding.
The clause provides that the designated mental health service is
required to provide those documents to the person at least 48
hours before the hearing. However, where an authorised
psychiatrist is of the opinion that the disclosure of information
in the documents may cause serious harm to the person or to
another person, the authorised psychiatrist may apply to the
Tribunal for the person to be denied access.
The clause provides that if the Tribunal determines that the
disclosure of the information may cause serious harm, it may:
deny the person access to the documents; proceed with the
hearing; and have regard to the information. If the Tribunal
41
determines that the disclosure of the information will not cause
serious harm, it may order the designated mental health service
to provide the document(s) to the person; and adjourn the
hearing for a period of no more than 5 days.
Clause 192 stipulates that if a hearing relates to a person who is subject to
a Temporary Treatment Order or a Treatment Order, the
Tribunal may not adjourn the hearing to a date after the
expiration date for that Order, unless satisfied that exceptional
circumstances exist. If such a hearing is adjourned the
Tribunal may extend the Order but only for a period of up to
ten days and only once.
Clause 193 provides that hearings of the Mental Health Tribunal are closed
to the public, except where the Tribunal orders that a hearing or
part of a hearing is to be open to the public after being satisfied
that it is in the public interest.
The clause allows a person who is subject to a proceeding
under the Bill to make a written application for the hearing, or
part of the hearing, to be in public. The Tribunal, when
determining whether to grant such an application, must
consider whether holding part or all of the hearing in public
would: be a serious threat to the health or safety or any person;
or prejudice the interests of justice.
Clause 194 prohibits the publication of information that identifies a person
who is the subject of a proceeding before the Tribunal, unless
the President has given written consent for the publication.
Clause 195 provides that a question arising in a proceeding before the
Mental Health Tribunal, other than a question of law, is to be
determined by a majority of the members constituting the
Tribunal in that proceeding.
The clause requires that oral reasons be given for a
determination by the Tribunal, including an explanation of the
determination and an explanation of any order made by the
Tribunal under the Bill.
The clause establishes requirements for the form and content of
orders made under Part 8 of the Bill.
The clause requires that the Tribunal take reasonable steps to
provide a copy of any order made to the same parties who
receive notice of the hearing in accordance with clause 189(1).
42
Clause 196 provides that a question of law arising in a proceeding before
the Mental Health Tribunal, including a question of mixed fact
and law, must be determined by the presiding member
(pursuant to clause 180, the presiding member is the legal
member of the Tribunal as constituted for that proceeding).
Clause 197 provides for the Mental Health Tribunal to refer to the Trial
Division of the Supreme Court a question of law that arises in a
proceeding before the Tribunal.
The clause provides that the referral may be made on request of
a party to the proceeding before the Tribunal or on the
Tribunal's initiative, but in either case must have the consent of
the President.
The clause provides that if a question of law is referred to the
Supreme Court, the Tribunal must not make a determination to
which that question is relevant while the referral is pending, or
proceed in a manner or make a determination that is
inconsistent with the opinion of the Supreme Court on the
question.
The clause provides that after referring a question of law, the
Tribunal may adjourn the hearing of the proceeding before the
Tribunal. The Tribunal may also extend the duration of a
Treatment Order or Temporary Treatment Order that applies to
the person who is the subject of the proceeding in which the
question of law has arisen, until the referred question has been
resolved and the Tribunal has made its determination.
Clause 198 allows a person who is a party to a proceeding before the
Mental Health Tribunal to request a statement of reasons for a
determination made by the Tribunal in that proceeding.
The request must be in writing and be received by the Tribunal
within 20 business days of the relevant decision.
Clause 199 allows the Mental Health Tribunal to make corrections to an
order or statement of reasons issued by it, if the statement or
order contains certain specified errors or defects.
Clause 200 provides that a decision of the Mental Health Tribunal is not
affected or invalidated solely because of a defect in the
appointment of the President, Deputy President or any member
of the Tribunal.
43
The clause provides for a person whose appointment expires
during a hearing to keep acting as a member of the Tribunal
until that matter is concluded.
The clause ensures that a proceeding before the Tribunal is not
invalidated or affected merely because the proceeding was not
heard within the applicable timeframes under the Act due to an
unintentional miscalculation of time.
Clause 201 allows a person who is a party to a proceeding before the
Mental Health Tribunal to apply to the Victorian Civil and
Administrative Tribunal (VCAT) for review of any
determination made by the Mental Health Tribunal under the
Bill in that proceeding.
The clause provides that an application must be made within
20 business days after the determination or, if the person
requested a statement of reasons for the determination,
20 business days of the date the person received the statement
of reasons. However, VCAT may accept an application
outside that timeframe if VCAT determines that special
circumstances exist.
Clause 202 allows the Mental Health Tribunal to engage a person to
provide expert evidence in relation to any matter arising in a
proceeding, and makes the Tribunal responsible for the cost of
any such engagement.
Clause 203 allows the principal registrar to issue a summons to a person to
attend the Mental Health Tribunal to give evidence or to
produce a document. A summons may be issued at the request
of a party to a proceeding or on the initiative of the Tribunal.
Clause 204 makes it an offence for a person to fail to comply with a
summons issued by the Mental Health Tribunal, without
reasonable excuse. The penalty is 60 penalty units.
Clause 205 makes it an offence for a person to knowingly provide false
information to the Mental Health Tribunal. The penalty is
120 penalty units for a natural person and 600 penalty units for
a body corporate.
44
Clause 206 makes it an offence for a person to be in contempt of the
Mental Health Tribunal. This includes insulting a member of
the Tribunal, repeatedly interrupting a hearing of the Tribunal,
creating a disturbance in a place where the Tribunal is sitting,
or doing anything that, if the Tribunal were a Court, would
constitute contempt of Court. The penalty is 120 penalty units.
Division 6--Rules Committee
Clause 207 establishes the Rules Committee of the Mental Health
Tribunal.
Clause 208 sets out the functions of the Rules Committee, including:
developing rules and practice notes for the Mental Health
Tribunal, and informing members of the Tribunal of same.
Clause 209 allows the Rules Committee to make rules regulating, and issue
practice notes relating to, the practice and procedures of the
Mental Health Tribunal.
Clause 210 provides that the members of the Rules Committee shall be the
President, Deputy President, and such other members of the
Mental Health Tribunal selected by the President.
Clause 211 establishes that the Rules Committee may regulate its own
proceedings, save that: quorum is half of the number of
members, and the President, or in the absence of the President,
the Deputy President, presides at meetings.
Clause 212 stipulates that if a decision is made by the Rules Committee
while there is a vacancy in the office of a member, that
decision is not invalid solely by reason of that vacancy.
PART 9--COMMUNITY VISITORS
Clause 213 defines the term prescribed premises for the purposes of Part 9
to mean the premises of a designated mental health service or a
mental health service provider which provides residential
services and 24 hour nursing care to persons with a mental
illness. The definition also includes a prescribed mental health
service provider or prescribed class of mental health service
providers which provide residential care to persons who have
mental illness.
45
Clause 214 provides for the appointment of community visitors by the
Governor in Council on the recommendation of the Public
Advocate.
The clause provides for the term and conditions of the
appointment of community visitors.
The clause provides that community visitors must not be
employed by or have any direct interest in any contract with
the Department of Health or a mental health service provider
while in office.
Clause 215 provides that the Governor in Council may specify terms and
conditions in the instrument of appointment of a community
visitor.
The clause sets out the circumstances in which a community
visitor may cease to hold office.
Clause 216 states the functions of community visitors, which include
visiting prescribed premises in order to inquire into the matters
specified in the Bill.
Clause 217 sets out the powers which community visitors may exercise in
visiting prescribed premises.
Clause 218 provides that community visitors may visit prescribed premises
with or without notice.
Clause 219 provides that a person receiving mental health services at a
prescribed premises, or a person on the resident's behalf, may
request a visit from a community visitor. The person in charge
of the prescribed premises must notify a community visitor
within two business days of receiving a request.
Clause 220 requires staff members at prescribed premises to give
community visitors any reasonable assistance that is required to
enable community visitors to effectively perform or exercise
their powers or functions.
Clause 221 provides for the continuation of the Community (Psychiatric
Services) Visitors Board, which was established under
section 116 of the Mental Health Act 1986, under a new
name, the Community Visitors Mental Health Board.
The clause provides for the membership of the Board and sets
out the Board's functions.
46
Clause 222 provides that the Community Visitors Mental Health Board
may refer matters reported by community visitors to
appropriate persons specified in the Bill.
Clause 223 details reporting arrangements for community visitors and the
Community Visitors Mental Health Board.
Clause 224 requires that the Community Visitors Mental Health Board
provide an annual report on the activities of community visitors
to the Minister.
The clause provides that the Minister must cause the annual
report to be tabled in Parliament.
Clause 225 makes provision for the confidentiality of information acquired
by community visitors by virtue of being community visitors.
The clause creates an offence for a person who is or has been a
community visitor to breach specified requirements regarding
the information acquired by virtue of being a community
visitor. The maximum penalty for this offence is 60 penalty
units.
The clause provides that the offence provision does not apply
to a person who provides information to a court in the course of
criminal proceedings or proceedings under the Bill.
PART 10--COMPLAINTS
Division 1--The Mental Health Complaints Commissioner
Clause 226 establishes the Mental Health Complaints Commissioner and
provides that the Commissioner is to be appointed by the
Governor in Council.
The clause provides that the Commissioner holds office for
five years and sets out the terms and conditions of
appointment.
Clause 227 Subclause (1) provides for the removal of the Mental Health
Complaints Commissioner from office. Subclause (2) sets out
the requirements for the resignation of the Commissioner.
Clause 228 sets out the functions of the Mental Health Complaints
Commissioner.
47
Clause 229 provides that the Mental Health Complaints Commissioner has
the power to do all things that are necessary or convenient to be
done in performing any of his or her functions under the Bill.
The clause sets out the Commissioner's delegation power.
Clause 230 provides for the employment of public service employees and
contractors to assist the Mental Health Complaints
Commissioner in performing any of his or her powers, duties
or functions under the Bill.
Clause 231 provides protection from liability for the Mental Health
Complaints Commissioner where he or she is carrying out his
or her functions under the Bill in good faith.
Division 2--Complaints management by the Commissioner
Clause 232 provides for the making of complaints to the Mental Health
Complaints Commissioner.
The clause provides that a person may make a complaint to the
Commissioner if he or she is a consumer, is acting on behalf of
a consumer, or if he or she satisfies the Commissioner that he
or she has a genuine interest in the wellbeing of a consumer.
Consumer is defined in clause 3 of the Bill.
The clause provides that when a complaint is made to the
Commissioner by a person other than the consumer, the
Commissioner must ensure that the consumer consents to the
complaint being made before accepting the complaint.
The clause specifies some circumstances in which the
Commissioner is not required to obtain the consent of the
consumer before accepting the complaint.
Clause 233 provides for the referral of complaints to the Mental Health
Complaints Commissioner by other statutory entities.
The Commissioner is empowered to treat a complaint which
has been referred to him or her as though it were a complaint
made under clause 232(1).
Clause 234 sets out the grounds for making a complaint to the Mental
Health Complaints Commissioner. A complaint may be made
in relation 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.
48
Clause 235 details how a complaint may be made to the Mental Health
Complaints Commissioner. The Commissioner is empowered
to keep information given to him or her confidential in certain
circumstances, after having considered whether to keep the
information confidential would unreasonably limit another
person's right to procedural fairness.
Clause 236 provides that a complaint must be made to the Mental Health
Complaints Commissioner within 12 months of the matter
giving rise to the complaint occurring.
The clause provides the Commissioner with the discretion to
accept a complaint made after 12 months if satisfied that there
is a good reason for the delay.
Clause 237 provides for the withdrawal of complaints made to the Mental
Health Complaints Commissioner.
Clause 238 requires the Mental Health Complaints Commissioner, after
receiving a complaint in writing, to, as soon as practicable and
within 20 business days, either refuse to deal with, cease
dealing with or agree to deal with, the complaint.
Clause 239 provides that the Mental Health Complaints Commissioner
may, by notice in writing, request that the complainant or any
other relevant person or body to provide, within a specified
time, specified information relating to the complaint.
Clause 240 sets out the circumstances in which the Mental Health
Complaints Commissioner may refuse to deal with or cease
dealing with a complaint or part thereof. These include where
the complaint has been or is being otherwise considered or
investigated, the complaint is referred to another body,
organisation, agency or entity, or the complaint has not been
made in accordance with the requirements of the Act.
The clause provides that the Commissioner may close a
complaint or part thereof if the Commissioner is satisfied that
the complaint has been resolved.
Clause 241 requires the Mental Health Complaints Commissioner to give
written notice of the closure of a complaint and the reasons for
the closure to the consumer, and if the consumer did not make
the complaint, the complainant. If, prior to closing the
complaint, the Commissioner has notified the mental health
49
service provider of the complaint, the Commissioner must also
give written notice of the closure and the reasons for the
closure to the mental health service provider.
Clause 242 provides that where appropriate, the Mental Health Complaints
Commissioner may refer a complaint or part thereof to another
body, organisation, agency or entity. The Commissioner is
empowered to refer matters without the consent of the
consumer where the complaint raises issues requiring
investigation by another body, organisation, agency or entity
and the referral is in the public interest.
Clause 243 specifies the notification requirements which apply to the
Mental Health Complaints Commissioner's acceptance of a
complaint.
The clause details the processes which the Commissioner may
adopt after accepting a complaint. These include informal
dispute resolution, conciliation, conducting an investigation,
serving a compliance notice and accepting an undertaking from
the mental health service provider.
Division 3--Conciliation
Clause 244 describes the process for conciliating complaints made to the
Mental Health Complaints Commissioner.
Clause 245 provides that parties to a conciliation are entitled to legal
representation and to be supported by another person.
Clause 246 describes the circumstances in which a conciliation process
may be discontinued.
Clause 247 describes the process to be followed at the end of a conciliation
process.
Clause 248 describes the process to be followed where the parties to a
conciliation reach an agreement.
Clause 249 sets out the limitations which apply to conciliators in relation to
the disclosure and use of information acquired during the
course of a conciliation process.
50
The clause creates an offence for a conciliator who does not
comply with the requirements in the Bill in relation to
information communicated to the conciliator during the
conciliation process. The penalty is 60 penalty units.
Division 4--Investigations
Clause 250 provides that the Mental Health Complaints Commissioner
must issue an identity card to each investigator to whom the
Commissioner has delegated his or her investigative functions.
Clause 251 requires that investigators comply with certain requirements in
conducting investigations.
Clause 252 describes the process for investigating complaints.
Clause 253 requires that the Mental Health Complaints Commissioner give
notice to a mental health service provider that is the subject of
an investigation.
Clause 254 empowers the Mental Health Complaints Commissioner, or at
the Commissioner's direction, an investigator, to enter the
premises of mental health service providers to investigate
complaints.
The clause articulates the powers which investigators may
exercise following entry onto the premises of mental health
service providers.
Clause 255 Provides that sections 14, 15 and 16 of the Evidence
(Miscellaneous Provisions) Act 1958 apply to investigations
conducted under Division 4 of Part 10 of the Bill.
The effect of this provision is to empower the Mental Health
Complaints Commissioner to summon and examine persons
relevant to an investigation and require the production of
documents relevant to an investigation.
Clause 256 provides that the Mental Health Complaints Commissioner
cannot conduct an investigation or exercise his or her power
under clause 255 while a complaint is being conciliated under
Division 3 of Part 10 of the Bill.
The clause provides that nothing in section 255 of the
Evidence (Miscellaneous Provisions) Act 1958 prevents a
person from refusing to answer a question or produce a
51
document in order to preserve legal professional privilege or
client legal privilege. Further, nothing in section 255 prevents
a person from refusing to answer a question or produce a
document if the answer or the information contained in the
document would tend to incriminate the person.
Clause 257 describes the process to be followed by the Mental Health
Complaints Commissioner after conducting an investigation
into a complaint.
Clause 258 requires that a mental health service provider respond to the
Mental Health Complaints Commissioner in writing within
30 business days of receiving a report detailing the findings of
an investigation.
Clause 259 provides for the publication by the Mental Health Complaints
Commissioner of a report detailing the findings of an
investigation.
Division 5--Compliance notices
Clause 260 sets out the circumstances in which the Mental Health
Complaints Commissioner may serve a compliance notice on a
mental health service provider.
The clause provides that a compliance notice may require the
mental health service provider to take specified action within a
specified period for the purpose of ensuring compliance with
the Bill and the regulations and to report to the Commissioner
within a specified time after having taken this action.
Clause 261 provides that an individual or a mental health service provider
whose interests are affected by a compliance notice may apply
to VCAT for review of the decision to serve the compliance
notice.
Clause 262 makes it an offence for a mental health service provider to fail
to comply with a compliance notice. The maximum penalty
for this offence is 1200 penalty units for bodies corporate and
240 penalty units in any other case.
52
Division 6--General
Clause 263 requires those specified in the provision to provide the Mental
Health Complaints Commissioner with any reasonable
assistance that the Commissioner requires in order to perform
any of his or her duties or functions or exercise any powers
under the Bill.
Clause 264 makes it an offence for a person to, by threats, intimidation,
undue influence or coercion, persuade or attempt to persuade
another person not to make a complaint to the Mental Health
Complaints Commissioner or to withdraw a complaint which
has been made to the Commissioner. The maximum penalty
for this offence is 240 penalty units.
The clause also makes it an offence for a person to dismiss,
refuse to employ or engage another person or to subject the
other person to any detriment because he or she intends to
complain or has complained to the Commissioner or has not
withdrawn or refuses to withdraw a complaint. The maximum
penalty for this offence is 240 penalty units.
The clause requires a mental health service provider to take
reasonable steps to ensure that detrimental action is not taken
against a consumer in reprisal for him or her making a
complaint or for a complaint being made on his or her behalf.
Clause 265 makes provision for the confidentiality of information acquired
by the Commissioner or those who are employed or engaged
by the Commissioner in performing functions or duties or
exercising powers under the Bill.
The clause makes it an offence for a person who is or has been
the Commissioner or is employed or engaged by the
Commissioner to breach specified requirements regarding the
confidentiality of information. The maximum penalty for this
offence is 60 penalty units.
The clause provides that the offence provision does not apply
to a person who provides information to a court in the course of
criminal proceedings or proceedings under the Bill.
Clause 266 requires mental health service providers to establish a local
process for receiving, managing and resolving complaints
about the provision of mental health services.
53
Clause 267 requires mental health service providers to report biannually to
the Mental Health Complaints Commissioner in relation to
complaints.
Clause 268 requires that the Mental Health Complaints Commissioner
provide an annual report on the operation of the Commissioner
to the Minister.
The clause provides that the Minister must cause the annual
report to be tabled in Parliament.
PART 11--SECURITY PATIENTS
Division 1--Preliminary
Clause 269 subclause (a) provides that a reference to the Secretary to the
Department of Justice includes a reference to the Secretary to
the Department of Human Services and the Chief
Commissioner of Police in this Part as being the relevant
responsible authority in relation to certain persons described in
subclause (a) (i) and (ii).
Subclause (b) defines "prison or other place of confinement"
for the purposes of this Part.
Division 2--Court Secure Treatment Orders
Clause 270 provides for the transfer of a person subject to a Court Secure
Treatment Order from a prison or other place of confinement to
a designated mental health service for treatment as a security
patient. The Secretary to the Department of Justice may make
a transfer direction if satisfied that the criteria at
subsections 2(a) to (b) apply to the person.
Clause 271 requires the authorised psychiatrist to notify the Mental Health
Tribunal and other specified persons that the security patient
subject to a Court Secure Treatment Order has been received at
a designated mental health service.
Clause 272 provides that a security patient subject to a Court Secure
Treatment Order may apply to the Mental Health Tribunal at
any time to be discharged as a security patient.
The clause provides that other specified persons may apply to
the Tribunal on behalf of the security patient.
54
Clause 273 provides for review of a Court Secure Treatment Order by the
Mental Health Tribunal.
Subclause (1) requires the Tribunal to review the Order within
28 days of the person being received at the designated mental
health service. Thereafter the Order is to be reviewed at
intervals not exceeding 6 months while the person remains a
security patient. In addition the Order must be reviewed any
time an application is made to be discharged by the security
patient or by any person on his or her behalf.
Subclauses (2) and (3) require the Tribunal to order that the
person continue to be a security patient if satisfied the criteria
for a Court Secure Treatment Order apply to the person.
The Tribunal must discharge the person as a security patient if
not satisfied that the criteria apply to the person.
Clause 274 provides for a person subject to a Court Secure Treatment
Order to be discharged as a security patient.
Subclause (1) provides that an authorised psychiatrist must
discharge the person as a security patient if the authorised
psychiatrist determines that the criteria for a Court Secure
Treatment Order do not apply or the Tribunal has ordered the
person be discharged as a security patient.
Subclause (2) provides that a person who has been discharged
will cease to be a security patient on entering the legal custody
of the Secretary to the Department of Justice or, if the person is
due to be released on parole, upon his or her release.
Division 3--Secure Treatment Orders
Clause 275 describes the purpose of a Secure Treatment Order, who may
make the Order and what it authorises.
Clause 276 sets out the process for making a Secure Treatment Order.
Subclause (1) provides that the Secretary to the Department of
Justice may make a Secure Treatment Order for a person who
is detained in a prison or other place of confinement.
The Secretary must be satisfied that the criteria for making the
Order apply to the person, based on a report from a
psychiatrist. The Secretary must have received a report from
the authorised psychiatrist at the relevant designated mental
health service, recommending the making of the Order and
55
stating that there are facilities or services available at that
service for the detention and treatment of the person.
Subclause (2) provides a Secure Treatment Order cannot be
made for a forensic patient or a person subject to a Court
Secure Treatment Order. The Act provides other mechanisms
for these people to be compulsorily taken from prison or other
place of confinement to a designated mental health service for
treatment.
Clause 277 requires the authorised psychiatrist to notify the Tribunal and
take reasonable steps to notify other specified persons that the
person subject to a Secure Treatment Order has been received
at a designated mental health service.
Clause 278 provides that a person subject to a Secure Treatment Order may
apply to the Mental Health Tribunal at any time to revoke the
Secure Treatment Order.
The clause provides that other specified persons may apply to
the Tribunal on behalf of the person subject to the Secure
Treatment Order for the revocation of the Order.
Clause 279 provides for review of a Secure Treatment Order by the Mental
Health Tribunal.
Subclause (1) provides that the Tribunal is to review the Order
within 28 days after the person being received at the designated
mental health service. Thereafter the Order is to be reviewed at
intervals not exceeding 6 months while the person remains a
security patient. In addition, the Order must be reviewed at
any time an application is made to be discharged by the
Tribunal by the security patient or by any person on his or her
behalf.
Subclauses (2) and (3) provide that on review the Tribunal
must order that the person continue to be a security patient if
satisfied the criteria for a Secure Treatment Order apply to the
person. The Tribunal must discharge the person as a security
patient if not satisfied that the criteria apply to the person.
56
Clause 280 provides for a person subject to a Secure Treatment Order to be
discharged as a security patient.
Subclause (1) provides that an authorised psychiatrist must
discharge the person as a security patient if he or she
determines that the criteria for a Secure Treatment Order do not
apply or the Tribunal has ordered that the person be discharged
as a security patient.
Subclause (2) provides that the person discharged will cease to
be a security patient on entering the legal custody of the
Secretary to the Department of Justice or, if he or she is due to
be released on parole, upon his or her release.
Subclause (3) describes the effect of the person being
discharged as a security patient on the Secure Treatment Order.
Division 4--Leave of absence
Clause 281 provides for the grant of leave of absence for security patients.
Subclause (1) provides that the authorised psychiatrist may
grant a leave of absence to a security patient for treatment or
medical treatment as defined, or for any other purpose he or
she considers appropriate.
Subclause (2) provides for the duration of leave.
Subclauses (3) and (4) permit the authorised psychiatrist to
grant leave subject to any conditions and sets out the matters to
be taken into account when granting the leave or varying the
conditions or duration of the leave.
Clause 282 provides for the revocation of leave by the authorised
psychiatrist. Revocation may only occur if the authorised
psychiatrist is satisfied that one of the specified criteria applies
and written notice of the revocation is given to the security
patient.
Clause 283 sets out the notification requirements for a leave of absence.
Clause 284 The clause provides that a security patient may make an
application to the Tribunal if the authorised psychiatrist refuses
to grant a leave of absence and sets out the process for the
Tribunal to determine the application.
57
Division 5--Monitored leave
Clause 285 provides for the grant of monitored leave for security patients.
A security patient, a specified person or the authorised
psychiatrist of the designated mental health service where the
security patient is detained, may apply to the Secretary to the
Department of Justice for monitored leave. The Secretary may
grant monitored leave for a period not exceeding 6 months for
one or more of the purposes set out in the Bill.
Subject to satisfying the criteria in the Bill, monitored leave
may be granted or varied more than once but only one grant of
monitored leave or variation can be in force at any one time in
respect of a security patient. For example, a security patient
may be granted monitored leave for three consecutive periods
to complete a course of study.
Clause 286 provides for the Secretary to the Department of Justice to grant
or vary monitored leave subject to any conditions he or she
considers necessary, having regard to the purpose of the leave
and the health and safety of any person.
Clause 287 provides for the matters to be taken into account by the
Secretary to the Department of Justice in determining whether
to grant or vary monitored leave or to impose or vary any
conditions on monitored leave.
Clause 288 subclause (1) provides that whenever an application is made
for monitored leave, an authorised psychiatrist of the
designated mental health service where the security patient is
detained is to prepare an applicant profile and a leave plan or
statement setting out the reasons why monitored leave should
not be granted.
Subclauses (2) and (3) specify the information to be contained
in an applicant profile and leave plan prepared by the
authorised psychiatrist.
Clause 289 provides for the revocation of monitored leave by the Secretary
to the Department of Justice.
Revocation may only occur where the Secretary is satisfied that
one of the specified criteria apply. Revocation is affected by
written notice to the security patient requiring him or her to
return to the designated mental health service.
58
Clause 290 sets out the notification requirements for monitored leave.
As soon as practicable after deciding to grant, vary or revoke
monitored leave, the Secretary to the Department of Justice
must notify the authorised psychiatrist for the designated
mental health service in which the patient is detained of his or
her decision.
The authorised psychiatrist must then ensure reasonable steps
are taken to inform the security patient and the persons
specified of the decision.
Division 6--Taking security patients to another designated
mental health service
Clause 291 provides for the transfer of security patients between
designated mental health services by direction of the authorised
psychiatrist.
The authorised psychiatrist must be satisfied the transfer is
necessary for the security patient's treatment. Transfer can
only proceed with the approval of the authorised psychiatrist of
the receiving designated mental health service.
For the purposes of determining whether the transfer is
necessary for the security patient's treatment, the authorised
psychiatrist must, to the extent that is reasonable in the
circumstances, have regard to the factors listed in
subclause (2).
Clause 292 provides for the transfer of security patients between
designated mental health services by direction of the chief
psychiatrist.
The chief psychiatrist must be satisfied the transfer is necessary
for the security patient's treatment and have regard to the same
factors as the authorised psychiatrist. However, the approval
of the authorised psychiatrist of the receiving designated
mental health service is not required for transfers by the chief
psychiatrist.
Clause 293 sets out the information, notification and other obligations of
the authorised psychiatrist following the making of a transfer
direction by the authorised or chief psychiatrist.
59
Clause 294 provides for review by the Mental Health Tribunal of a transfer
direction relating to a security patient.
Subclauses (1) to (3) set out the procedural requirements for
making and hearing the application.
Subclause (4) provides that on review the Tribunal must
determine if the transfer is necessary for the security patient's
treatment, having regard to the same factors considered by the
authorised or chief psychiatrist.
Subclause (5) requires the Tribunal to refuse the application if
satisfied that the transfer is necessary for the patient's
treatment. The Tribunal must grant the application if not
satisfied that the transfer is necessary for the patient's
treatment.
Subclause 6 provides that if the application is granted, the
patient will not be transferred or will be returned to his or her
"original" service if already transferred.
Subclause (7) provides that if the application is refused, the
patient will be taken to the relevant designated mental health
service. The patient will remain at the "receiving" designated
mental health service if he or she has already been taken there.
Division 7--General security patient matters
Clause 295 sets out the circumstances in which a person will automatically
cease to be a security patient.
It also imposes an obligation on the Secretary to the
Department of Justice to notify the relevant authorised
psychiatrist as soon as practicable of the date when a security
patient's sentence of imprisonment or detention is to expire or
the patient is due to be released on parole.
Clause 296 provides for the authorised psychiatrist to impose security
conditions on a security patient.
Clause 297 sets out the notification obligations of the authorised
psychiatrist in relation to the discharge of a security patient.
The clause also provides that if the person's sentence of
imprisonment has not yet expired and the person is not on
parole, then as soon as practicable after a person is discharged,
60
the Secretary must make the necessary arrangements to take
the person to a prison or other place of confinement.
Clause 298 provides that a security patient is in the custody of the
authorised psychiatrist from the time he or she is received at
the designated mental health service until he or she is received
into the custody of the Secretary to the Department of Justice.
Clause 299 provides that a court may order the issue of a warrant to arrest
a Victorian security patient who is absent without leave from a
designated mental health service and who appears to be no
longer in Victoria.
Division 8--Interstate security patients
Clause 300 sets out definitions for interstate security patient, mental
health facility and relevant State.
Clause 301 provides for the Magistrates' Court to issue a warrant to arrest
an interstate security patient located in Victoria who is absent
without leave or other lawful authority from an interstate
mental health facility.
Clause 302 provides for the orders that the Magistrates' Court may make in
respect of an interstate security patient arrested under warrant
and brought before the court.
Clause 303 provides for the Supreme or County Court to impose a
translated sentence on an interstate security patient arrested and
remanded in custody or granted bail.
The clause provides for the return of the interstate security
patient in specified circumstances.
Clause 304 sets out the nature and effect of a translated sentence imposed
on an interstate security patient under clause 303.
PART 12--FORENSIC PATIENTS
Clause 305 sets out the definition of forensic patient.
Clause 306 provides for the transfer of a person detained in prison under
the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997 to a designated mental health service as a forensic
patient.
61
A transfer direction made by the Secretary to the Department
of Justice under this clause authorises the transfer to, detention
and treatment of the person at a designated mental health
service.
The clause sets out the notification obligations of the
authorised psychiatrist when a transfer takes place.
Clause 307 provides for the transfer of forensic patients between
designated mental health services by direction of the authorised
psychiatrist.
The clause provides that the authorised psychiatrist must be
satisfied the transfer is necessary for the forensic patient's
treatment. Transfer can only proceed with the approval of the
authorised psychiatrist of the receiving designated mental
health service.
For the purposes of determining whether the transfer is
necessary for the patient's treatment, the authorised psychiatrist
must have regard to the factors listed in subclause (3).
The clause provides a transfer direction must not be made in
respect of a forensic patient detained under section 20BJ(1) or
20BM of the Commonwealth Crimes Act 1914 but may
recommend an order be made under section 20BJ(2) of
20BM(7) of that Act to vary the designated mental health
service in which the forensic patient is detained.
Clause 308 provides for the transfer of forensic patients between
designated mental health services by direction of the chief
psychiatrist.
The chief psychiatrist must also be satisfied the transfer is
necessary for the forensic patient's treatment having regard to
the same factors as the authorised psychiatrist. However, the
approval of the authorised psychiatrist of the receiving
designated mental health service is not required for transfers by
the chief psychiatrist.
The clause provides a transfer direction must not be made in
respect of a forensic patient detained under section 20BJ(1) or
20BM of the Commonwealth Crimes Act 1914 but may
recommend an order be made under section 20BJ(2) of
20BM(7) of that Act to vary the designated mental health
service in which the forensic patient is detained.
62
Clause 309 sets out the information, notification and other obligations of
the authorised psychiatrist following the making of a transfer
direction by the authorised or chief psychiatrist.
Clause 310 provides for the Forensic Leave Panel (the Panel), established
under section 59 of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997, to review transfer directions
relating to forensic patients.
The clause sets out the procedural requirements for making and
hearing the application.
It provides that on review, the Panel must determine if the
transfer is necessary for the forensic patient's treatment, having
regard to the same factors considered by the authorised or chief
psychiatrist.
The clause provides the Panel must refuse the application if
satisfied that the transfer is necessary for the forensic patient's
treatment. If the application is refused, the patient will be
transferred or remain at the `receiving' service if the transfer
has occurred.
The Panel must grant the application if not satisfied that the
transfer is necessary for the forensic patient's treatment. If the
application is granted, the patient will not be transferred or will
be returned to the "original" service if transfer has occurred.
Clause 311 provides for the authorised psychiatrist to impose security
conditions on a forensic patient.
Clause 312 provides that a forensic patient may apply to the Forensic
Leave Panel for a leave of absence under Part 7 of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
PART 13--INTERSTATE APPLICATION OF MENTAL
HEALTH PROVISIONS
Division 1--General
Clause 313 defines corresponding law, corresponding Order, interstate
authority, interstate mental health facility and participating
State for the purposes of this Part.
63
Clause 314 provides that the Governor in Council may make a declaration
that a law or Order of another State is a corresponding law or
Order for the purposes of this Part.
Clause 315 provides that the Minister may make an agreement with an
interstate Minister responsible for administering a
corresponding law.
Clause 316 lists the persons able to exercise powers under a corresponding
law or an agreement under clause 315.
Clause 317 enables a person who is authorised under a corresponding
Order to perform those functions or exercise those powers in
Victoria.
Division 2--Operation of Victorian Orders interstate and
corresponding orders in Victoria
Clause 318 provides that a person subject to an Assessment Order (in-
patient or community) may be taken to an interstate mental
health facility for assessment.
Clause 319 provides that a person in a participating State who could be
taken to and detained in an interstate mental health facility may
instead be taken to Victoria and examined by a registered
medical practitioner or a mental health practitioner for the
purpose of making an Assessment Order.
Clause 320 provides that the authorised psychiatrist or chief psychiatrist
may by direction, with the informed consent of the person
subject to a Community Temporary Treatment Order or
Community Treatment Order, transfer responsibility for the
treatment of a person to an interstate mental health facility.
The authorised psychiatrist or chief psychiatrist must be
satisfied that the transfer of responsibility is necessary for the
person's treatment. The transfer must also be permitted by the
corresponding law.
For the purposes of determining whether to direct the transfer
of a person, the psychiatrist must have regard to the factors
listed in subclause (2).
64
Clause 321 provides for the transfer of responsibility for treatment of a
person subject to a Community Temporary Treatment Order or
Community Treatment Order to an interstate mental health
facility where the person does not have capacity to provide
informed consent or does not consent to the transfer.
The authorised psychiatrist or chief psychiatrist may make an
application to the Mental Health Tribunal for an interstate
transfer of treatment order in circumstances described.
The clause requires the Tribunal to seek, to the extent that is
reasonable in the circumstances, the views of specified persons
when determining an application for transfer of responsibility
for treatment.
The clause provides the Tribunal must grant the application
and make an interstate transfer of treatment order if satisfied of
the same factors as considered by the authorised or chief
psychiatrist. The Tribunal must refuse to grant the application
if not satisfied of these factors. If the application is refused, the
person will not be transferred.
Clause 322 provides that the authorised psychiatrist or chief psychiatrist
may by direction, with the informed consent of the person
subject to an Inpatient Temporary Treatment Order or an
Inpatient Treatment Order, transfer responsibility for the
treatment of a person to an interstate mental health facility.
The authorised psychiatrist and chief psychiatrist must be
satisfied that the transfer of responsibility is necessary for the
patient's treatment. The transfer must also be permitted by the
corresponding law.
For the purposes of determining whether to direct the transfer
of a patient, the psychiatrist must have regard to the factors
listed in subclause (2).
Clause 323 provides for the transfer of responsibility for treatment of a
person subject to an Inpatient Temporary Treatment Order or
an Inpatient Treatment Order to an interstate mental health
facility where the person does not have capacity to provide
informed consent or does not consent to the transfer.
The authorised psychiatrist or chief psychiatrist may make an
application to the Mental Health Tribunal for an interstate
transfer order in circumstances described.
65
The clause requires the Tribunal to have regard, to the extent
that is reasonable in the circumstances, to the views of
specified persons when determining an application for an
interstate transfer order.
The clause provides the Tribunal must grant the application
and make an interstate transfer order if satisfied of the same
factors as considered by the authorised or chief psychiatrist.
The Tribunal must refuse to grant the application if not
satisfied of these factors. If the application is refused, the
person will not be transferred.
Clause 324 provides for the transfer into Victoria of a person who is
detained in an interstate mental health facility under a
corresponding law or who is subject to a corresponding order
to determine if the person should be made subject to a
Temporary Treatment Order.
The transfer can only occur with the prior approval of the
authorised psychiatrist who will examine the person.
A person transferred under this clause ceases to be subject to a
corresponding Order when the person is made subject to a
Temporary Treatment Order.
Clause 325 provides for the interstate application of Victorian Community
Temporary Treatment Orders and Community Treatment
Orders.
Division 3--Persons absent without leave
Clause 326 provides for the apprehension in Victoria of persons absent
without leave or other lawful authority from an interstate
mental health facility.
The clause provides that the person apprehended must be taken
to an interstate mental health facility. However, pending the
return of the person apprehended, the person may be detained
and treated in a designated mental health service as if the
person were subject to a Temporary Treatment Order.
66
Clause 327 provides that a person absent without leave from a designated
mental health service who is apprehended interstate may be
returned to the designated mental health service by an
authorised person (as defined) or a person authorised to do so
under a corresponding law in that State.
PART 14--VICTORIAN INSTITUTE OF FORENSIC
MENTAL HEALTH
Division 1--Preliminary
Clause 328 provides that the Institute established under the Mental Health
Act 1986 continues. The Institute is a body corporate with an
official seal and the normal powers of a body corporate.
Clause 329 provides that the Institute may carry on business under the
name "Forensicare".
Clause 330 sets out the functions of the Institute. These functions reflect
the role of the Institute as the primary provider of a wide range
of services in the field of forensic mental health. In addition to
the provision of assessment and treatment services, the Institute
will also provide professional and community education and
conduct research in the area of forensic mental health and
associated disciplines.
Clause 331 provides that the Institute may enter into arrangements for the
provision of services and may impose fees and charges for the
provision of services.
The clause provides that the Institute must have regard to the
needs and views of individuals, communities and providers of
mental health services and related services in performing its
powers and exercising its functions.
Division 2--Board of directors
Clause 332 requires the Institute to have a board of directors. The board
may exercise the powers of the Institute set out in section 331.
Clause 333 provides for the membership of the board of directors.
Clause 334 provides that each director will be appointed by the Governor
in Council on the recommendation of the Minister.
67
Clause 335 provides that each director holds office for a period of up to
three years and is eligible for re-appointment.
Clause 336 sets out the process for resignation or removal of a director.
Clause 337 protects the directors from personal liability in certain
circumstances. Any such liability attaches instead to the
Institute.
Clause 338 makes provision for the validity of a decision of the board of
directors even though there is a defect in the appointment of a
director or a vacancy in the office of a director.
Clause 339 provides that the board of directors may determine the
procedures to be followed by the board.
Division 3--General
Clause 340 provides for the appointment of the chief executive officer of
the Institute. The CEO is, subject to the direction of the board
of directors, responsible for the corporate management of the
Institute.
Clause 341 provides for the Institute to employ any staff necessary to carry
out the functions of the Institute.
The clause provides that certain employees who were public
servants under the Public Administration Act 2004 may
"carry over" their long service leave entitlements if employed
by the Institute.
The clause enables certain public servants to carry on their
existing superannuation entitlements if employed by the
Institute.
Clause 342 allows the Minister to give directions to the Institute, which
must be published in the Government Gazette and complied
with by the Institute.
Clause 343 requires the board of directors, at the direction of the Minister,
to prepare and submit a strategic plan for the operation of the
Institute.
68
Clause 344 provides that the board of directors must prepare, in
consultation with the Secretary, a proposed statement of
priorities in respect of each financial year and submit it to the
Minister for approval. If the board of directors and the
Minister fail to agree on a statement of priorities before
1 October of the financial year to which the statement relates,
the Minister may make a statement of priorities for the
Institute.
The clause specifies what must be included in a statement of
priorities. It must set out the objectives, performance targets
and key performance outcomes.
Clause 345 provides that the board of directors must notify the Minister
and the Secretary of matters which are of public concern or risk
that may affect the Institute.
PART 15--GENERAL
Division 1--Disclosure of health information
Clause 346 provides that a mental health service provider, its staff,
contractors, volunteers and board members must not disclose
health information about a consumer (defined term).
The clause allows disclosure in specified circumstances.
This includes: where the person to whom the information
relates consents to the disclosure; the disclosure is required by
another health service provider to provide health services; or
the disclosure is permitted by Health Privacy Principle 2.1 or
2.2(a), (f), (g), (h) or (k), or Health Privacy Principle 2.5.
Clause 347 provides that a person employed or engaged by a mental health
service provider may enter health information into an
electronic health information system.
The clause provides that the information in the electronic
health information system may only be used for certain
purposes, including the provision of mental health services.
Division 2--Notification of reportable deaths
Clause 348 provides that 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
69
services from that provider that is a reportable death within the
meaning of section 4 of the Coroners Act 2008.
Clause 349 requires an authorised psychiatrist to advise the Secretary to
the Department of Justice, Secretary to the Department of
Human Services or the Chief Commissioner of Police of the
death of any security patient, whoever is relevant in the
circumstances.
The clause also requires an authorised psychiatrist to advise the
Secretary of the death of any forensic patient.
Division 3--Powers of transfer, apprehension, entry,
search and seizure
Clause 350 provides that if a person is required under the Bill to be taken
to or from a designated mental health service or any other
place, an authorised person may use bodily restraint on a
person and specified persons may administer sedation to the
person.
Bodily restraint may only be used if all reasonable and less
restrictive options have been tried or considered, and have been
found to be unsuitable; and the bodily restraint must be
necessary to prevent serious imminent harm.
The clause allows a registered medical practitioner to
administer sedation, or direct a registered nurse or medical
practitioner to administer sedation. Sedation may only be
administered if all reasonable and less restrictive options have
been tried and considered, and are considered unsuitable; and
must be necessary to prevent serious and imminent harm.
Clause 351 allows a police offer to apprehend a person if the police officer
is satisfied that a person appears to have a mental illness and
because of that apparent illness the person needs to be
apprehended to prevent serious and imminent harm.
The clause provides that a police officer is not required to
make a clinical judgement in determining whether a person
appears to have a mental illness under subsection(1).
The clause requires a police officer to arrange for a person
apprehended under subsection (1) to be taken to a registered
medical practitioner or mental health practitioner, so the person
can be examined in accordance with clause 30.
70
The clause clarifies when a person apprehended under this
section is no longer in the custody of the police.
Clause 352 provides that if a person is absent without leave, the authorised
psychiatrist must take reasonable steps to notify the nominated
person, a guardian, a carer, a parent or the Secretary to the
Department of Human Services.
The clause empowers the authorised psychiatrist to arrange for
a person absent without leave to be apprehended and taken to a
designated mental health service.
Clause 353 provides the powers that an authorised person may exercise if a
person is to be taken to or from a designated mental health
service or any other place. An authorised person may enter any
premises and apprehend the person.
Clause 354 provides that an authorised person may search a person before
they are taken to or from a designated mental health service, or
any other place, if the authorised person reasonably suspects
the person is carrying any thing that presents a danger to health
and safety or could assist the person to escape.
Clause 355 provides for the conduct of a search under clause 354 in a
manner which preserves privacy and dignity. The authorised
person must inform the person of certain matters, ask for the
person's cooperation and conduct the least invasive kind of
search practicable. When a search is conducted of a person
who is of or under the age of 16 years, there must be a parent
present, or if this is not possible, another adult must be present
apart from the authorised person conducting the search.
Clause 356 provides that if a thing is found in the course of a search under
clause 351, that thing may be seized and detained if it presents
a danger to health and safety or could be used to assist escape.
Division 4--General provisions
Clause 357 provides that if a registered medical practitioner has performed
an examination for the purposes of the Bill and he or she is not
otherwise entitled to payment, the medical practitioner may
apply to the Secretary for payment.
71
Clause 358 creates an offence for a person to give information or prepare
or produce a document that is required under the Bill that the
person believes to be false or misleading.
The clause provides that it is a defence if the accused can prove
that the accused believed on reasonable grounds that the
information was true or correct.
Clause 359 creates an offence for a person, without lawful authority, to
destroy or damage any record that is required to be kept.
Clause 360 provides that a person may refuse or fail to give information, or
do any other thing, under the Bill if the information or other
thing would tend to incriminate the person.
Clause 361 provides that the validity of an order, or any other document,
made under the Bill is not affected by an error in it unless the
error relates to the grounds on which the order or document
was made and proper grounds do not exist, or as a result of the
error the order or document does not comply with a mandatory
requirement of the Bill. This clause does not apply to an order
made by the Mental Health Tribunal.
Clause 362 provides the relevant entity which may bring proceedings in
relation to the different Parts of the Bill and Regulations.
Clause 363 provides that an appointment or delegation of power under the
Bill is not invalid because of a defect or irregularity in the form
or process of appointment or delegation.
Clause 364 provides that a person must not exercise powers or perform
functions or duties in respect of another person if the person
would have a conflict of interest.
Clause 365 provides when notices or other documents served under the
Bill will be taken to have been given.
Clause 366 provides that the purpose of a Code of Practice is to provide
practical guidance. A Code of Practice cannot impose a duty
on a person, create an enforceable legal right or impose any
liability or penalty.
Clause 367 provides that the Secretary may make a Code of Practice.
The Secretary may consult with other specified entities (for
example, the chief psychiatrist) before making a Code of
Practice.
72
Clause 368 provides that the Secretary must publish on the Department of
Health's website the Code of Practice and a notice that states its
date of commencement and where copies may be obtained.
Clause 369 provides that a Code of Practice may apply, adopt or
incorporate any document or code published by another body.
Clause 370 provides that the Governor in Council may make regulations.
Clause 371 provides the different types of fees which may be imposed by
the regulations, including provision for the reduction, waiver or
refund of fees.
Clause 372 provides that the Governor in Council may make regulations of
a savings or transitional nature and that they may be
retrospective.
PART 16--REPEAL OF MENTAL HEALTH ACT 1986,
SAVINGS AND TRANSITIONAL PROVISIONS
Clause 373 sets out the definitions used in this Part, namely reference to
the Mental Health Act 1986 as the 1986 Act and this Bill as
the 2014 Act.
Clause 374 provides for repeal of the 1986 Act, and includes the usual
provisions, consistent with the Interpretation of Legislation
Act 1984, for continuation of persons, things and
circumstances provided for under the 1986 Act, except where
the 2014 Act expressly or by necessary implication provides
otherwise, and for continued operation of regulations,
subordinate instruments and other documents.
Clause 375 provides that on and from 1 July 2014, a person who was the
subject of a request and recommendation under section 9 of the
1986 Act in the 72 hours immediately before 1 July 2014, is to
be taken to be subject to an Inpatient Assessment Order under
the 2014 Act. Consistent with the provisions of the 2014 Act
relating to Inpatient Assessment Orders, the presumption
created by this clause has effect for 24 hours if the person is
received at the designated mental health service, and 72 hours
if the person is not so received.
73
Clause 376 provides that on and from 1 July 2014, a person who was the
subject of an authority to transport under section 9A of the
1986 Act is taken to be subject to an Inpatient Assessment
Order under the 2014 Act. The Inpatient Assessment Order
continues for 24 hours if the person is received in a designated
mental health service, and 72 hours if the person is not so
received.
Clause 377 provides that on and from 1 July 2014, an authority to take a
person under section 9B of the 1986 Act is taken to be an
authority to take a person under Division 3 of Part 15 of the
2014 Act. If the person subject to the authority to take is
apprehended, they are taken to have been apprehended under
the 2014 Act.
Clause 378 provides that on and from 1 July 2014, a person who had been
the subject of an involuntary treatment order under section 12
of the 1986 Act and who had not been examined in accordance
with section 12AC(1) of the 1986 Act, is taken to be subject to
an Inpatient Assessment Order under the 2014 Act.
The Inpatient Assessment Order continues for 24 hours if the
person was received at an approved mental health service
before 1 July 2014, and continues for 72 hours if the person is
not received at an approved mental health service before 1 July
2014.
Clause 379 provides that on and from 1 July 2014, a person who was the
subject of an involuntary treatment order under section 12AA
of the 1986 Act, and who had not yet been examined in
accordance with section 12AC of the 1986 Act, is taken to be
subject to an Inpatient Assessment Order which remains in
force for 24 hours, unless the Order is extended or revoked in
accordance with the 2014 Act.
Clause 380 provides that on and from 1 July 2014, a person who was the
subject of an involuntary treatment order where a community
treatment order had not been made, and the Mental Health
Review Board had not yet conducted an initial review of the
order, is taken to be subject to an Inpatient Temporary
Treatment Order, which remains in force for 28 days unless it
is revoked or expires earlier in accordance with clause 55, 61
or 62 of the 2014 Act.
74
Clause 381 provides that on and from 1 July 2014 involuntary patients who
were the subject of applications under section 12A or 12D or
detained under section 12C of the 1986 Act are to be taken to
be subject to an Inpatient Assessment Order.
Clause 382 provides that on and from 1 July 2014 a person subject to a
community treatment order under section 14 of the 1986 Act,
where the Mental Health Review Board had not yet conducted
a review of that order, is to be taken to be subject to a
Community Temporary Treatment Order that is taken to come
into force on 1 July 2014 and remain in force for 28 days
unless it is revoked or expires earlier in accordance with clause
55, 61 or 62 of the 2014 Act.
Clause 383 provides that on and from 1 July 2014 a person subject to a
community treatment order under section 14 of the 1986 Act,
where the order has been confirmed by the Mental Health
Review Board, is taken to be subject to a Community
Treatment Order. Provision is made for the Order to continue
in force for an additional 2 weeks beyond the term specified in
the relevant provision of the 1986 Act.
Clause 384 provides that on and from 1 July 2014 a person subject to a
restricted community treatment order under section 15A of the
1986 Act is--
· taken to be subject to a Community Temporary
Treatment Order if the Board has not yet reviewed;
or
· taken to be subject to a Community Treatment Order
if the Board has reviewed.
Clause 385 provides that on and from 1 July 2014 a person who was
subject to a hospital transfer order or a restricted hospital
transfer order under the 1986 Act is taken to be subject to a
Secure Treatment Order under the 2014 Act. Provision is
made for review of the Order by the Mental Health Tribunal
consistent with the provisions for review of Secure Treatment
Orders in the Bill.
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Clause 386 provides that on and from 1 July 2014 a person who was the
subject of an order made under section 17 of the 1986 Act for
transfer from prison to an approved mental health service, is
taken to be the subject of a direction made by the Secretary to
the Department of Justice under clause 306 of the 2014 Act.
Clause 387 provides that the Mental Health Tribunal is to determine, in
accordance with the relevant provisions of the Bill, any
proceedings relating to an appeal or review which stand
adjourned or part heard by the Mental Health Review Board at
1 July 2014.
Clause 388 provides that on and from 1 July 2014 the secrecy provisions in
clause 175 are taken to apply to any person who was bound by
the secrecy provisions of section 35 of the 1986 Act.
Clause 389 provides that on and from 1 July 2014 a person who was the
subject of a transfer order who is not yet transferred, is to be
taken to be subject to a varied Order under clause 65 of the
2014 Act that specifies that the person is to be assessed or
treated at another designated mental health service. An appeal
made under section 39(5) of the 1986 Act in relation to such a
transfer is to be taken to be an application for review under
clause 64 of the 2014 Act.
Clause 390 provides that on and from 1 July 2014, leave of absence
granted under the 1986 Act is to be taken to be leave of
absence granted under the 2014 Act, with the same conditions
and terms as applied under the 1986 Act.
Clause 391 provides that on and from 1 July 2014 an involuntary patient
who immediately before that day had been absent without
leave for a continuous period of less than 12 months is taken to
be subject to an Inpatient Treatment Order under the 2014 Act
with a duration of 6 months.
Clause 392 provides for the apprehension of a patient referred to in
clause 391.
Clause 393 provides that an order made by the chief psychiatrist under
section 49 of the 1986 Act for transfer of a security patient
which has not yet been effected is to be taken to be a direction
by the chief psychiatrist under clause 292 of the 2014 Act.
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Clause 394 provides for preservation of an involuntary treatment order
made under the 1986 Act which had been confirmed by the
Mental Health Review Board, where no community treatment
order has been made. Such a person is to be taken to be subject
to an Inpatient Treatment Order under the 2014 Act. Provision
is made for review of such orders consistent with the
provisions of the 2014 Act.
Clause 395 provides for applications for leave of absence for security
patients made but not determined before 1 July 2014 to be dealt
with under the provisions of the 2014 Act, and for leave that
had been granted prior to 1 July 2014 to be treated as though it
had been granted under the provisions of the 2014 Act.
Clause 396 makes similar provision in relation to special leave of absence
for security patients.
Clause 397 makes provision for apprehension of a security patient who,
immediately before 1 July 2014, is absent without leave.
Clause 398 enables an order made by the chief psychiatrist prior to 1 July
2014 for the transfer of a forensic patient to be acted upon as
though the order were a direction under clause 308(1) of the
2014 Act.
Clause 399 makes provision for the apprehension of a forensic patient who,
immediately before 1 July 2014, is absent without leave.
Clause 400 provides for an application for consent to the performance of
psychosurgery made before 1 July 2014 that had not yet been
considered by the Psychosurgery Review Board, to be treated
as though it were an application to perform neurosurgery under
section 100(2) of the 2014 Act, and for surgery which had been
authorised but not yet performed, to proceed as though
authorised under the 2014 Act.
Clause 401 makes provision, in relation to electroconvulsive treatment, for
the continued operation of the provisions of the 1986 Act to
electroconvulsive treatment which the patient had consented to,
or an authorized psychiatrist had authorized (as the case may
be) prior to 1 July 2014.
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Clause 402 provides, in subclause (1) that approval given under the 1986
Act to the use and form of restraint is taken, on and from 1 July
2014, to be an authorisation under the 2014 Act. Subclause (2)
makes similar provision in relation to seclusion.
Clause 403 provides that on and from 1 July 2014 urgent non-psychiatric
treatment that was performed under section 84(3) of the 1986 is
taken to be urgent medical treatment under the 2014 Act.
Clause 404 preserves the effect of Orders in Council made under
section 93B of the 1986 Act as though they had been made
under clause 314 of the 2014 Act.
Clause 405 preserves the operation of agreements made by the Minister
under section 93C of the 1986 Act.
Clause 406 provides that on and from 1 July 2014 a person who is being
transferred to an interstate mental health facility under
section 93E(1) of the 1986 Act is taken to be being taken to the
interstate mental health facility under clause 318(1) of the 2014
Act.
Clause 407 provides that on and from 1 July 2014 a person being taken
from interstate to an approved mental health service under
section 93F(1) of the 1986 Act is to be taken as being taken to
a designated mental health facility under clause 319 of the
2014 Act.
Clause 408 provides that a transfer order under section 94G(1) of the 1986
Act which is made immediately before 1 July 2014 which has
not yet been reviewed by the Mental Health Review Board, is
to be taken to be a direction under clause 322 of the 2014 Act if
the person consents to the transfer, and to be taken to be an
application to the Mental Health Tribunal under clause 323 of
the Bill if the person does not consent to the transfer.
The clause makes similar provision for the preservation of
transfer orders made under the 1986 Act where the Mental
Health Review Board has confirmed the transfer order.
Clause 409 provides that transfer of a person to Victoria under
section 93H(1) of the 1986 Act is to be treated as transfer under
clause 324 of the 2014 Act on and from 1 July 2014.
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Clause 410 provides that a person who is apprehended under
section 93K(1) of the 1986 Act immediately before 1 July 2014
and not yet taken to an interstate mental health facility is, on
and from 1 July 2014, taken to be apprehended under
clause 326(1) of the 2014 Act.
Clause 411 provides that on and from 1 July 2014, authority to escort
Victorian patients apprehended interstate, under section 93L(1)
of the 1986 Act, is to be treated as authority under clause 327
of the 2014 Act.
Clause 412 provides that on and from 1 July 2014, an application made to
the Magistrates' Court, and a warrant issued by the Court in
response to such an application, are to be treated as though
made under clause 301 of the 2014 Act.
Clause 413 provides that on and from 1 July 2014, and Order made by the
Magistrates' Court under section 93O(3) of the 1986 Act is to
be taken to be an order made under clause 302(3) of the 2014
Act.
Clause 414 provides for translated sentences for interstate security patients
to be dealt with under the 2014 Act on and from 1 July 2014.
Clause 415 preserves the operation of a declaration made under
section 94A of the 1986 Act. Section 94A provided for a place
to be declared to be an approved mental health service in an
emergency. The equivalent provision in the 2014 Act is
clause 149.
Clause 416 preserves the authority of those who have been appointed as an
authorized psychiatrist under the 1986 Act. This avoids the
need for fresh authorisations to be made under clause 150 of
the 2014 Act on commencement of that Act.
Clause 417 preserves the rights and status of certain employees in the
mental health system whose terms and conditions of
employment are protected by section 97 of the 1986 Act.
Clause 418 preserves the appointment of the chief psychiatrist.
Clause 419 preserves the appointment of authorized officers under the
1986 Act. This avoids the need for fresh authorisations to be
made under clause 146 of the 2014 Act.
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Clause 420 ensures that reportable deaths that occurred prior to 1 July 2014
are reported to the Coroner, despite the repeal of the relevant
provision of the 1986 Act and requires a report to be made
under clause 348 if this has not occurred.
Clause 421 preserves the appointment of community visitors under the
1986 Act.
Clause 422 converts the appointments of members of the Council of the
Victorian Institute of Forensic Mental Health to be members of
the board of directors under clause 334 of the 2014 Act.
The clause preserves the appointment of the CEO and the
employment of any employees under section 117J of the 1986
Act.
Clause 423 provides that on and from 1 July 2014, an application made to
VCAT under section 120 of the 1986 Act is taken to be an
application under clause 201 of the 2014 Act, and a part heard
or adjourned matter is to be determined by VCAT in
accordance with the provisions of the 2014 Act.
Clause 424 provides for a registered medical practitioner to be able to seek
payment for a recommendation made under section 127 of the
1986 Act on and from 1 July 2014.
Clause 425 enables the President of the Mental Health Tribunal to be able
to determine that the Tribunal be constituted by a legal member
and a community member only if a registered medical
practitioner member or psychiatrist member is not available.
This power is limited to the first 12 months after
commencement, and is intended to ease the transition from the
existing constitution of the Mental Health Review Board to the
requirements for constitution of the Mental Health Tribunal in
the first 12 months of operation of the 2014 Act. It is intended
that this clause be relied on only in exceptional circumstances.
Clause 426 provides that the President and the members of the Mental
Health Review Board are appointed to the Mental Health
Tribunal on and from 1 July 2014. The President's term of
appointment is extended to 1 June 2017 in order to provide
stability to the Tribunal in its first 3 years of operation.
Provision has also been made for some adjustment of terms of
appointment of other members in order to facilitate a more
systematic approach to replacement of members in the future.
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Clause 427 provides that psychiatrist members of the Psychosurgery
Review Board are to be taken to be an ordinary member of the
Mental Health Tribunal on and from 1 July 2014. Community
and legal members of the Psychosurgery Review Board will go
out of office.
Clause 428 provides that Part 17 and the Schedule are repealed on 1 July
2014, being the anniversary of the commencement of the 2014
Act. This is the usual approach to consequential amendments
to other legislation as these will be spent once effected.
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
Clause 429 amends certain definitions in the Sentencing Act 1991 so as to
link them to the definitions in the Bill rather than the
definitions in the Mental Health Act 1986, such as authorised
psychiatrist, designated mental health service, Mental Health
Tribunal, Secure Treatment Order, Temporary Treatment
Order, and inserts new terms Court Assessment Order and
Court Secure Treatment Order which align terms in the
Sentencing Act 1991 with the concepts introduced in this Bill.
Clause 430 amends the reference in section 7 of the Sentencing Act 1991
to hospital security order to the new term introduced by the
Bill, namely Court Secure Treatment Order.
Clause 431 replaces references in section 18 of the Sentencing Act 1991 to
approved mental health service, and to hospital security order,
with references to the terms used in the Bill: designated mental
health service and Court Secure Treatment Order.
Clause 432 replaces subsection 18A(7) of the Sentencing Act 1991 with a
provision which appropriately refers to the new term, Court
Secure Treatment Order.
Clause 433 replaces section 18E of the Sentencing Act 1991, which deals
with the effect of a hospital security order on sentencing, so as
to refer to the new concept of Court Assessment Order.
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Clause 434 replaces the reference to hospital security order in section
35(2)(c) of the Sentencing Act 1991 with a reference to the
new term Court Secure Treatment Order.
Clause 435 replaces Part 5 of the Sentencing Act 1991, which deals with
Mentally Ill Offenders, with a new Part 5 which follows the
approach taken in the Bill in relation to assessment and
treatment of persons with mental illness.
New section 90 describes the new Court Assessment Order,
setting out the effect of the Order, and the types of Court
Assessment Order, namely Community Court Assessment
Order and Inpatient Assessment Order.
New section 91 sets out the circumstances in which a court
may make a Court Assessment Order and the criteria that must
apply to a person before such an Order can be made.
The criteria are in similar terms to the criteria for making an
Assessment Order under the Bill.
New section 92 requires the Court Assessment Order to state
whether it is a Community Court Assessment Order or an
Inpatient Court Assessment Order, and requires the court to
notify the authorised psychiatrist of the Order and to give a
copy of the Order to the authorised psychiatrist.
New section 93 provides in subsection (1) that 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 accordance with any
direction made by the court under section 94D. Subsection (2)
provides that a Court Assessment Order comes into force when
the Order is made and remains in force for 7 days.
New section 94 provides that after considering a report made
by an authorised psychiatrist after examining the person subject
to a Court Assessment Order, the court may make a Court
Secure Treatment Order in accordance with section 94B or
impose sentence on the person according to law.
New section 94A provides that a Court Secure Treatment
Order is an Order made by the court that enables a person who
is subject to the Order to be compulsorily taken to, and
detained and treated at, a designated mental health service.
New section 94B sets out the circumstances in which the court
may make a Court Secure Treatment Order by way of sentence.
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New section 94C sets out the effect and duration of a Court
Secure Treatment Order. The person who is subject to such an
Order must be taken to the relevant designated mental health
service, and becomes a security patient when received at that
designated mental health service and is liable to serve the
unexpired portion of the sentence in prison if he or she is
discharged as a security patient.
New section 94D provides that the court, when making a Court
Assessment Order or a Court Secure Treatment Order, may
include in the Order the names of a person or persons who shall
be responsible for taking the person to or from the designated
mental health service, as the case may be.
New section 94E sets out a definition for the transitional
provisions introduced by Division 4 of Part 5, namely 2014
Act.
New section 94F provides that on and from 1 July 2014 a
person is to be taken to be subject to an Inpatient Court
Assessment Order if the equivalent circumstances under the
1986 Act apply.
New section 94G provides that on and from 1 July 2014 a
person is taken to be subject to a Court Secure Treatment Order
if immediately before that day he or she is subject to a hospital
security order.
New section 94H provides that on and from 1 July 2014 a
person is to be taken to be subject to an Inpatient Treatment
Order if immediately before that day the person is subject to a
restricted involuntary treatment order.
New section 94I provides that proceedings under Part 5 of the
Sentencing Act 1991 which were part heard or adjourned
immediately before 1 July 2014 are to be determined by the
court in accordance with the relevant provisions of the 2014
Act and the provisions of new Part 5 inserted by this Bill.
Division 2--Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997
Clause 436 amends section 3 of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 which contains definitions
used in the Crimes (Mental Impairment and Unfitness to be
83
Tried) Act 1997, replacing definitions relating to the 1986 Act
with definitions relating to the 2014 Act.
Clause 437 amends the reference in section 26(8) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997 to
approved mental health service to refer to designated mental
health service.
Clause 438 makes similar amendments in sections 30B(1)(a), 30B(1A) and
30B(3) of the Crimes (Mental Impairment and Unfitness to
be Tried) Act 1997.
Clause 439 makes similar amendment in section 41(4) of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
Clause 440 makes similar amendment 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.
Clause 441 makes similar amendment in section 50(2)(a) of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
Clause 442 makes similar amendment in section 52 of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997.
Clause 443 makes similar amendment in section 54 of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997.
Clause 444 amends section 54A(1) of the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 to refer to the authorised
psychiatrist in the designated mental health service.
Clause 445 makes similar amendment in section 54B of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997,
and omits references to the Clinical Director in that section as
this term is not used in the Bill.
Clause 446 amends references to approved mental health service in
section 57 of the Crimes (Mental Impairment and Unfitness
to be Tried) Act 1997 to be references to designated mental
health service.
Clause 447 substitutes "designated" for "approved" in section 57A Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997.
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Clause 448 amends the note at the foot of section 58 of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997 to
make reference to the relevant provisions of the 2014 Act in
place of references to provisions of the 1986 Act.
Clause 449 removes the reference to section 25 of the 1986 Act, relating to
interpreters who may be appointed by the Panel to assist it.
Section 25 of the 1986 Act refers to interpreters approved by
the Secretary. Approval by the Secretary was included in the
1986 Act at a time prior to national accreditation of interpreters
and translators, and is no longer required.
Clause 450 amends the note at the foot of section 73E(3) of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997,
and references in section 73E(4) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997 to refer to
designated mental health service in place of references to
approved mental health service.
Clause 451 amends section 73J(1)(d)(ii) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997 to
substitute "section 324 of the Mental Health Act 2014" for the
reference to "section 93K of the Mental Health Act 1986".
Clause 452 substitutes "designated" for "approved" in section 73K(8)(a) of
the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997.
Clause 453 inserts a new Part 7C into the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997, dealing with
International Forensic Patients.
New section 73O defines the term international forensic
patient with reference to the International Transfer of Prisoners
Act 1997 of the Commonwealth (Commonwealth Act).
New section 73P provides for review of an international
forensic patient on the application of the Secretary to the
Department of Health to the Supreme Court. The purpose of
such review is to determine the appropriate disposition for the
international forensic patient. The Supreme Court may
undertake the review itself or refer the matter to the County
Court. The section provides that the court may make a
supervision order or order that the international forensic patient
be released unconditionally.
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New section 73Q provides that the court must set a nominal
term of a supervision order in accordance with section 28 of
the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997 as if the relevant offence had been committed in
Victoria and the maximum penalty for the offence were the
maximum penalty attaching to the offence at the time of the
person's transfer to Victoria. Further provision is made for
sentencing where there is no equivalent offence.
New section 73R provides that the Attorney-General may
appeal to the Court of Appeal against an order for
unconditional release under new section 73P(4)(b), sets out the
procedural requirements for making such an appeal and the
orders that may be made by the Court of Appeal in determining
the Attorney-General's appeal.
Clause 454 inserts a new transitional provision into section 90 of the
Crimes (Mental Impairment and Unfitness to be Tried) Act
1997, to deem any person not subject to a Secure Treatment
Order, and is serving a sentence of imprisonment within the
meaning of the International Transfer of Prisoners Act 1997 of
the Commonwealth at a designated mental health service to be
received at the designated mental health service as an
international forensic patient.
Division 3--Amendments to other Acts
Clause 455 provides that an Act specified in the heading to an item in the
Schedule is amended as set out in that item.
Clause 456 makes amendments to the definitions of Chief Commissioner
of Police and police officer in the Bill to take effect
consequential on the Victoria Police Act 2013.
Clause 457 repeals the definitions of Australian lawyer and Australian
legal practitioner in the Bill, to take effect consequential on
the Legal Profession Uniform Law Application Act 2014.
SCHEDULE
Schedule contains consequential and other amendments--see clause 455.
86