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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Mental Health Bill 2013
Contents
Part 1 -- Preliminary matters
1. Short title 2
2. Commencement 2
3. Act binds Crown 2
Part 2 -- Terms and concepts
Division 1 -- Definitions and notes
4. Terms used 3
5. Notes and examples not part of Act 11
Division 2 -- Mental illness
6. When a person has a mental illness 11
Division 3 -- Best interests of a person
7. Matters relevant to decision about person's best
interests 12
Division 4 -- Wishes of a person
8. Matters relevant to ascertaining person's wishes 13
Division 5 -- Communicating with a person
9. Language, form of communication and terms to be
used 14
Part 3 -- Objects
10. Objects 15
Part 4 -- Charter of Mental Health
Care Principles
11. Regard to be had to Charter 16
12. Compliance with Charter by mental health services 16
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Mental Health Bill 2013
Contents
Part 5 -- Decision making capacity
and informed consent
Division 1 -- Decision making capacity
generally
13. Capacity of adult to make decisions 17
14. Capacity of child to make decisions 17
15. Determining capacity to make decisions 17
Division 2 -- Informed consent to treatment
16. Requirements for informed consent 18
17. People who can give informed consent 18
18. Determining capacity to make treatment decision 19
19. Explanation of proposed treatment must be given 19
20. Sufficient time for consideration 20
Part 6 -- Involuntary patients
Division 1 -- When a person will be an
involuntary patient
21. Involuntary patient 21
22. Inpatient treatment order 21
23. Community treatment order 21
24. Making involuntary treatment order 22
25. Criteria for involuntary treatment order 22
Division 2 -- Referrals for examination
Subdivision 1 -- Person suspected of needing
involuntary treatment order
26. Referral for examination at authorised hospital or
other place 24
27. Person to be taken to authorised hospital or other
place as soon as practicable 25
28. Detention to enable person to be taken to
authorised hospital or other place 25
29. Making transport order 28
30. Effect of referral on community treatment order 28
31. Revoking referral 29
Subdivision 2 -- Voluntary inpatient admitted by
authorised hospital
32. Application of this Subdivision 30
33. Effect of admission on community treatment order 30
34. Person in charge of ward may order assessment 31
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Contents
35. Revoking order for assessment 32
36. Referral for examination at authorised hospital 33
37. Revoking referral 33
Subdivision 3 -- Requirements for referral
38. Application of this Subdivision 34
39. No referral without assessment 34
40. Time limit for making referral 35
41. Form of referral 35
42. Providing information contained in referral to
person referred 36
43. Copy of referral must be filed 36
44. Period of referral made under s. 26(2) or (3)(a) 36
45. Extending referral made outside metropolitan area 37
46. Changing place where examination will be
conducted 38
Subdivision 4 -- Conduct of assessment
47. Application of this Subdivision 39
48. How assessment must be conducted 40
49. Information to which practitioner may have regard 41
50. Assessment of person of Aboriginal or Torres
Strait Islander descent 41
Division 3 -- Examinations
Subdivision 1 -- Examination at authorised hospital
51. Application of this Subdivision 42
52. Detention for examination on referral made under
s. 26(2) 42
53. Detention for examination on referral made under
s. 36(2) 43
54. Conducting examination 43
55. What psychiatrist must do on completing
examination 44
56. Effect of order for continuation of detention 45
Subdivision 2 -- Examination at place that is not
authorised hospital
57. Application of this Subdivision 46
58. Detention for examination 46
59. Detention at place outside metropolitan area 47
60. Conducting examination 49
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Contents
61. What psychiatrist must do on completing
examination 49
62. Detention to enable person to be taken to hospital 50
63. Making transport order 52
Subdivision 3 -- Inpatient treatment order
authorising detention at general hospital
64. Application of this Subdivision 52
65. Treating psychiatrist must report regularly to Chief
Psychiatrist 53
66. Transfer from general hospital to authorised
hospital 53
67. Making transport order 54
68. Confirmation of inpatient treatment order 54
Subdivision 4 -- Order for further examination at
authorised hospital
69. Application of this Subdivision 55
70. Detention at authorised hospital 56
71. Conducting examination at authorised hospital 56
72. What psychiatrist must do on completing
examination 57
Subdivision 5 -- Examination without referral
73. Application of this Subdivision 57
74. Conducting examination 58
75. What psychiatrist may do on completing
examination 58
76. Confirmation of community treatment order 58
Subdivision 6 -- Conduct of examination
77. Application of this Subdivision 59
78. Referring psychiatrist cannot conduct examination 60
79. How examination must be conducted 60
80. Information to which examiner may have regard 62
81. Examination of person of Aboriginal or Torres
Strait Islander descent 62
Part 7 -- Detention for examination
or treatment
Division 1 -- Preliminary matters
82. Application of this Part 63
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Contents
Division 2 -- Detention at authorised hospital
or other place for examination
83. Detention authorised 63
Division 3 -- Detention at hospital under
inpatient treatment order
84. Application of this Division 64
85. Terms used 65
86. Detention authorised 65
87. Period that must be specified in inpatient treatment
order 66
88. Period for which detention is authorised 66
89. Examination before end of each detention period 66
90. Changing involuntary inpatient's status 68
91. Transfer between authorised hospitals 68
92. Making transport order 69
93. Involuntary inpatient to be advised of expiry 70
Division 4 -- Release from hospital or other
place
94. Application of this Division 70
95. Person must be allowed to leave 71
96. Delivery into custody under another law 71
Division 5 -- Absence without leave from
hospital or other place
97. Persons who are absent without leave 72
98. Making apprehension and return order 73
99. Operation of apprehension and return order 73
100. Period of apprehension and return order 74
101. Revocation of apprehension and return order 74
102. Return of person to place where apprehended 75
Division 6 -- Leave of absence from detention
at hospital under inpatient treatment
order
Subdivision 1 -- Preliminary matters
103. Application of this Division 75
104. Term used: leave of absence 76
Subdivision 2 -- Grant, extension, variation or
cancellation of leave
105. Granting leave 76
106. Extending or varying leave granted 79
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Contents
107. Involuntary inpatient must comply with conditions
of leave 79
108. Monitoring involuntary inpatient on leave 80
109. Changing involuntary inpatient's status while
inpatient on leave 80
110. Cancelling leave 80
Subdivision 3 -- Transport to and from hospital
111. Application of this Subdivision 81
112. Making transport order 82
Part 8 -- Community treatment
orders
Division 1 -- Preliminary matters
113. Terms used 83
Division 2 -- Making order
114. Things psychiatrist must be satisfied of before
making order 83
115. Terms of order 84
Division 3 -- Operation of order
116. Duration of order 85
117. Advice about when and where treatment to be
provided 86
118. Monthly examination of patient 86
119. Supervising psychiatrist may request practitioner
to examine involuntary community patient 88
120. What supervising psychiatrist may do after
examination 88
121. Continuation order 90
122. Varying order 91
123. Making inpatient treatment order or revoking
community treatment order 92
124. Confirmation of inpatient treatment order 94
125. Involuntary community patient to be advised of
expiry 95
Division 4 -- Breach of order
126. When involuntary community patient will be in
breach 95
127. What supervising psychiatrist must do if order
breached 96
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128. Order to attend if non-compliance continues 97
129. Making transport order 97
130. Detention at place specified in order to attend 98
131. Other action that may be taken if non-compliance 99
Division 5 -- Transport to hospital
132. Application of this Division 101
133. Making transport order 101
Division 6 -- Supervising psychiatrist and
treating practitioner
134. Supervising psychiatrist 102
135. Change of supervising psychiatrist 102
136. Treating practitioner 103
137. Change of treating practitioner 103
Part 9 -- Notifiable events
Division 1 -- Preliminary matters
138. Application of this Part 104
Division 2 -- Notification of carers, close family
members and other personal support
persons
139. Right of any carer, close family member or other
personal support person to be notified 104
140. Person responsible required to notify any carer,
close family member or other personal support
person 104
141. Reasonable efforts to notify carer, close family
member or other personal support person 105
142. Notification not in person's best interests 106
143. Advising nominated person, carer or close family
member of decision 106
144. Revocation of decision 107
Division 3 -- Notification of other persons and
bodies
145. Making, revocation or expiry of involuntary
treatment order 108
Part 10 -- Transport orders
146. Application of this Part 110
147. Transport officers 111
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148. Making transport order 111
149. Operation of transport order 112
150. Period of transport order 112
151. Extension of transport order made under s. 29(1) if
referral extended 113
152. Extension of other transport orders 114
153. Revocation of transport order if referral revoked 115
154. Revocation of transport order if no longer needed 115
155. Return of person if transport order expires or is
revoked 115
Part 11 -- Apprehension, search and
seizure powers
Division 1 -- Apprehension powers
156. Apprehension by police officer of person suspected
of having mental illness 117
157. Assessment of person arrested 118
158. Police must be notified when person leaves 118
159. Apprehension of other persons 119
Division 2 -- Search and seizure powers
160. Term used: approved form 120
161. Authorised persons 120
162. Search of person while detained or admitted 120
163. Conduct of search 121
164. Seizure of articles 123
165. Record of search and seizure 123
166. Dealing with articles seized when person
apprehended 125
167. Return of articles given to or seized by mental
health service 126
168. Return of articles given to medical practitioner or
authorised mental health practitioner 128
169. Approval of forms for use by police officers under
this Division 128
Part 12 -- Exercise of certain powers
Division 1 -- Detention powers
170. Principles relating to detention 129
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Division 2 -- Ancillary powers: reasonable
assistance and force and directions
171. Term used: prescribed provision 129
172. Reasonable assistance and reasonable force
authorised 130
173. Duty to obey directions 130
174. Other written laws not affected 130
Part 13 -- Provision of treatment
generally
Division 1 -- Voluntary patients
175. Informed consent necessary 131
176. Informed consent must be filed 131
Division 2 -- Involuntary patients and mentally
impaired accused
177. Application of this Division 132
178. Informed consent not necessary 132
179. Patient's psychiatrist must ensure regard had to
patient's wishes 133
180. Requirements for ascertaining patient's wishes 134
181. Record of treatment to be filed 135
182. Further opinion may be requested 135
183. Request for additional opinion may be refused 137
184. Chief Psychiatrist may request reconsideration of
treatment 139
Division 3 -- Treatment, support and discharge
planning
185. Application of this Division 139
186. Treatment, support and discharge plan 140
187. Preparation and review of plan 140
188. Involvement in preparation and review of plan 142
Division 4 -- Provision of treatment to patients
of Aboriginal or Torres Strait Islander
descent
189. Provision of treatment to patient of Aboriginal or
Torres Strait Islander descent 144
Division 5 -- Compliance with standards and
guidelines
190. Mental health service must comply with standards 144
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Mental Health Bill 2013
Contents
191. Mental health service must take guidelines into
account 144
Part 14 -- Regulation of certain
kinds of treatment and other
interventions
Division 1 -- Electroconvulsive therapy
192. Electroconvulsive therapy (ECT): meaning 145
193. ECT offence 145
194. ECT on child under 14 years prohibited 145
195. ECT on child over 14 years who is voluntary
patient 145
196. ECT on child over 14 years who is involuntary
patient or mentally impaired accused 146
197. ECT on adult voluntary patient 146
198. ECT on adult involuntary patient or mentally
impaired accused 147
199. Emergency ECT on adult involuntary patient or
mentally impaired accused 148
200. Report to Mentally Impaired Accused Review
Board 149
201. Statistics about ECT 149
Division 2 -- Emergency psychiatric treatment
202. Emergency psychiatric treatment: meaning 151
203. Informed consent not required 151
204. Record of emergency psychiatric treatment 152
Division 3 -- Psychosurgery
205. Psychosurgery: meaning 152
206. Psychosurgery offence 153
207. Psychosurgery on child under 16 years prohibited 153
208. Psychosurgery on adult or child over 16 years old 153
209. Report to Chief Psychiatrist and Mentally Impaired
Accused Review Board 154
Division 4 -- Deep sleep and insulin coma
therapy
210. Deep sleep and insulin coma therapy prohibited 154
Division 5 -- Seclusion
211. Terms used 154
212. Seclusion: meaning 155
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213. Seclusion must be authorised 155
214. Giving oral authorisation 155
215. Making seclusion order 157
216. Criteria for authorising seclusion 159
217. Treating psychiatrist (if any) to be informed 160
218. Extending seclusion order 160
219. Revoking seclusion order 161
220. Release of person on revocation or expiry of
seclusion order 161
221. Record of seclusion order expiring 161
222. Requirements relating to seclusion 162
223. Examination of person released from seclusion 163
224. Report to Chief Psychiatrist and Mentally Impaired
Accused Review Board 163
225. Reasonable assistance and force authorised 164
Division 6 -- Bodily restraint
226. Terms used 165
227. Bodily restraint: meaning 165
228. Principles relating to use of bodily restraint 166
229. Bodily restraint must be authorised 166
230. Giving oral authorisation 166
231. Making bodily restraint order 168
232. Criteria for authorising bodily restraint 171
233. Treating psychiatrist (if any) must be informed 172
234. Varying bodily restraint order 172
235. Revoking bodily restraint order 173
236. Release of person on revocation or expiry of bodily
restraint order 174
237. Record of bodily restraint order expiring 174
238. Requirements relating to bodily restraint 174
239. Examination of person when released 175
240. Report to Chief Psychiatrist and Mentally Impaired
Accused Review Board 176
Part 15 -- Health care of people in
hospitals
Division 1 -- Examination to assess person's
physical condition
241. Physical examination on arrival at hospital 178
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Division 2 -- Urgent non-psychiatric treatment
for involuntary inpatients and mentally
impaired accused
242. Provision of urgent non-psychiatric treatment:
report to Chief Psychiatrist 179
Part 16 -- Protection of patients'
rights
Division 1 -- Patients' rights generally
Subdivision 1 -- Explanation of rights
243. Application of this Subdivision 181
244. Rights to be explained to person 182
245. Person's rights to be explained to another person 182
246. Person responsible for ensuring explanation is
provided 182
Subdivision 2 -- Access to records about patients
and former patients
247. Term used: relevant document 183
248. Right to access medical record and other
documents 183
249. Restrictions on access 184
250. Providing access to medical practitioner or legal
practitioner 184
251. Disclosure by medical practitioner or legal
practitioner 185
Subdivision 3 -- Duties of staff of mental health
services toward patients
252. Term used: mental health service 185
253. Duty not to ill-treat or wilfully neglect patients 185
254. Duty to report certain incidents 185
Division 2 -- Additional rights of inpatients in
hospitals
Subdivision 1 -- Admission of voluntary inpatients
by authorised hospitals
255. Admission by medical practitioner 186
256. Confirmation of admission by psychiatrist 186
257. Reasons for refusing to admit or confirm
admission 186
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Subdivision 2 -- Rights of inpatients generally
258. Application of this Subdivision 187
259. Personal possessions 187
260. Interview with psychiatrist 189
261. Freedom of lawful communication 189
262. Restrictions on freedom of communication 190
Division 3 -- Nominated persons
Subdivision 1 -- Purpose and effect of nomination
263. Role of nominated person 192
264. Effect of nomination 192
Subdivision 2 -- Right to information, and to be
involved in matters, relating to patient's
treatment and care
265. Application of this Subdivision 193
266. Rights of nominated person 193
267. Responsibility of patient's psychiatrist 195
268. Contacting nominated person 195
269. Provision of information or involvement not in
patient's best interests 196
270. Advising nominated person of decision 196
271. Revocation of decision 197
272. Rights in another capacity not affected 197
Subdivision 3 -- Making and ending nomination
273. Who can make nomination 198
274. Who can be nominated 198
275. Formal requirements 198
276. Only one nominated person 199
277. Revocation of nomination 199
278. Resignation of nominated person 199
279. Notification of revocation or resignation 199
Part 17 -- Recognition of rights of
carers and families
Division 1 -- Role of carers and families
280. Carers 201
281. Close family members 201
282. Acknowledgment of and respect for role of carers
and close family members 202
283. More than one carer or close family member 202
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Division 2 -- Information about and
involvement in patient's treatment and
care
284. Application of this Division 203
285. Rights of carers and close family members 203
286. Voluntary patient with capacity to consent 205
287. Voluntary patient with no capacity to consent 205
288. Involuntary patient or mentally impaired accused
with capacity to consent 205
289. Involuntary patient or mentally impaired accused
with no capacity to consent 206
290. Responsibility of patient's psychiatrist 206
291. Contacting carer or close family member 207
292. Provision of information or involvement not in
patient's best interests 208
293. Advising carer or close family member of decision 208
294. Revocation of decision 209
295. Rights in another capacity not affected 210
Division 3 -- Identifying carer or close family
member
296. When being admitted or received 210
297. While being provided with treatment or care 211
298. Person can withdraw consent, or can consent, at
any time 212
Part 18 -- Children who have a
mental illness
299. Best interests of child is a primary consideration 213
300. Child's wishes 213
301. Views of child's parent or guardian 213
302. Child who is a voluntary patient 213
303. Segregation of children from adult inpatients 214
304. Off-label treatment provided to child who is
involuntary patient 215
Part 19 -- Complaints about mental
health services
Division 1 -- Preliminary matters
305. Terms used 217
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306. Making complaint to service provider or Director
of Complaints Office 218
307. Divisions 3 and 4 to be read with Health and
Disbility Services (Complaints) Act 1995 219
Division 2 -- Complaints to service providers
308. Service provider must have complaints procedure 219
309. Prescribed service providers must provide Director
with information about complaints 219
Division 3 -- Complaints to Director of
Complaints Office
Subdivision 1 -- Preliminary matters
310. Parties themselves may resolve complaint 220
311. Things done by or in relation to complainant 220
Subdivision 2 -- Director of Complaints Office
312. Functions of Director 221
313. Directions by Minister 222
314. Minister to have access to specified information
about Director's functions 223
Subdivision 3 -- Right to complain
315. Who may complain 224
316. Representative of person with mental illness or
carer 225
317. Representative must not be paid 226
318. Service provider may complain on behalf of person
with mental illness or carer 227
319. Registration board may complain on behalf of
person with mental illness or carer 227
320. Who and what can be complained about 228
321. Time for complaining 229
Subdivision 4 -- Initial procedures
322. How to complain 229
323. Referral of complaint about excluded mental health
service 230
324. Withdrawal of complaint 230
325. Complainant should try to resolve matter 230
326. Complaint that is not to be dealt with by National
Board under Health Practitioner Regulation
National Law (Western Australia) 231
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327. Complaint that is being dealt with by National
Board under Health Practitioner Regulation
National Law (Western Australia) 231
328. Preliminary decision by Director 231
329. Rejection, deferral or referral of complaints 234
330. Response by respondent 235
Subdivision 5 -- Negotiated settlements and
conciliation
331. Resolving complaints by negotiation 236
332. Conciliation of complaints 237
Subdivision 6 -- Investigations
333. Conduct generally 239
334. Power to require information and records 240
335. Warrant to enter and inspect premises 242
336. Conciliator cannot investigate 242
Subdivision 7 -- Consequences of investigation
337. What Director must do on completing investigation 243
338. Respondent or other person to report on remedial
action 244
339. Report not provided or remedial action not taken:
report to Parliament 244
Subdivision 8 -- Other matters relating to
investigations
340. Director to stop if other proceedings begun 245
341. Minister may refer matters for investigation 246
342. Confidentiality 246
Division 4 -- Miscellaneous matters
343. Reports to Parliament 247
344. False or misleading information or documents 247
345. Person must not be penalised because of complaint
or investigation 248
346. Registers: complaints, matters directed to be
investigated 249
347. Delegation by Director 249
Part 20 -- Mental health advocacy
services
Division 1 -- Preliminary matters
348. Terms used 251
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Contents
Division 2 -- Mental health advocates:
appointment or engagement, functions
and powers
Subdivision 1 -- Appointment or engagement,
functions and powers
349. Chief Mental Health Advocate 252
350. Other mental health advocates 252
351. Functions of Chief Mental Health Advocate 252
352. Functions of mental health advocates 253
353. Powers generally 255
354. Directions to Chief Mental Health Advocate about
general matters 255
355. Directions to Chief Mental Health Advocate to
report on particular issues 256
Subdivision 2 -- Contacting identified person or
person with sufficient interest
356. Request to contact identified person 257
357. Duty to contact identified person 258
358. Contact on mental health advocate's own initiative 260
Subdivision 3 -- Specific powers of mental health
advocates
359. Specific powers of mental health advocates 261
360. Documents to which access is restricted 262
361. Disclosure by mental health advocate 263
362. Interfering with exercise of powers 263
363. Issues arising out of inquiries and investigations 264
Division 3 -- Terms and conditions of
appointment or engagement
Subdivision 1 -- Chief Mental Health Advocate
364. Terms and conditions of appointment 266
365. Remuneration 266
366. Resignation 266
367. Removal from office 266
368. Acting Chief Mental Health Advocate 267
Subdivision 2 -- Other mental health advocates
369. Terms and conditions of engagement 268
370. Remuneration 268
371. Resignation 268
372. Removal from office 268
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Division 4 -- Other matters relating to mental
health advocates
373. Conflict of interest 269
374. Delegation by Chief Mental Health Advocate 270
Division 5 -- Staff and facilities
375. Advocacy services staff 271
376. Use of government staff and facilities 271
Division 6 -- Annual reports
377. Annual report: preparation 271
378. Annual report: tabling 272
Part 21 -- Mental Health Tribunal
Division 1 -- Preliminary matters
379. Terms used 273
Division 2 -- Establishment, jurisdiction and
constitution
380. Establishment 274
381. Jurisdiction 274
382. Constitution specified by President 274
383. Constitution generally 274
384. Constitution for psychosurgical matters 275
385. Contemporaneous exercise of jurisdiction 275
Division 3 -- Involuntary treatment orders:
review
386. Initial review after order made 276
387. Periodic reviews while order in force 277
388. Involuntary patient for continuous period 278
389. Review period may be extended 279
390. Application for review 280
391. Review on Tribunal's own initiative 281
392. Suspending order pending review 282
393. Parties to proceeding 282
394. Things to which Tribunal must have regard 282
395. What Tribunal may do on completing review 283
396. Review of direction given to psychiatrist 284
Division 4 -- Involuntary treatment orders:
validity
397. Application of this Division 284
398. Declaration about validity of treatment order 285
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399. Consequences of declaring treatment order invalid 285
400. Application for declaration 286
401. Failure to comply with this Act 287
Division 5 -- Review of admission of long-term
voluntary inpatients
402. Application of this Division 287
403. Application for review 287
404. Parties to proceeding 288
405. Things to which Tribunal must have regard 288
406. What Tribunal may do on completing review 289
Division 6 -- Electroconvulsive therapy
approvals
407. Application of this Division 289
408. Application for approval 290
409. Parties to proceeding 290
410. Things Tribunal must be satisfied of 291
411. Tribunal must have regard to Chief Psychiatrist's
guidelines 291
412. Other things to which Tribunal must have regard 291
413. Decision on application 293
Division 7 -- Psychosurgery approvals
414. Application of this Division 293
415. Application for approval 293
416. Parties to proceeding 294
417. Things Tribunal must be satisfied of 294
418. Things to which Tribunal must have regard 295
419. Decision on application 295
Division 8 -- Compliance notices for
non-clinical matters
420. Terms used 295
421. Tribunal may issue service provider with
compliance notice 296
422. Application for service of compliance notice 297
423. Parties to proceeding 297
424. Compliance notices to be reported on in annual
report 298
Division 9 -- Review of orders restricting
freedom of communication
425. Application for review 298
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426. Parties to proceeding 298
427. Decision on application 299
Division 10 -- Jurisdiction in relation to
nominated persons
428. Application for decision 299
429. Declaration about validity of nomination 299
430. Revocation of nomination 300
431. Parties to proceeding 300
Division 11 -- Review of decisions affecting
rights
432. Application for review 300
433. Parties to proceeding 301
434. What Tribunal may do on completing review 301
Division 12 -- Procedural matters
Subdivision 1 -- Proceedings generally
435. Lodgment of documents 301
436. Sittings 301
437. Conduct of proceedings 302
438. Presiding member 302
439. Deciding questions in proceedings 302
440. Assistance from persons with relevant knowledge
or experience 302
441. No fees payable 303
442. Each party to bear own costs 303
443. Frivolous, vexatious or improper proceedings 303
Subdivision 2 -- Notice of proceedings
444. Notice of applications 303
445. Notice of hearings 305
446. Tribunal may request information from SAT about
person's guardian 306
Subdivision 3 -- Appearance and representation
447. Party is an adult 307
448. Party is a child with capacity to consent 307
449. Party is a child with no capacity to consent 308
450. Tribunal may make arrangements for
representation 309
451. Legal representation of person with mental illness 309
452. Representative must not be paid 309
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Subdivision 4 -- Hearings and evidence
453. Nature of review proceedings 310
454. Closed hearings 311
455. Conduct of hearing in absence of party 311
456. Person chosen by person concerned may be present 311
457. Right to be heard 312
458. Evidence generally 312
459. Oral evidence about restricted information 313
460. Summons to give evidence or produce documents 313
461. Self-incrimination 314
462. Powers in relation to documents produced 314
463. Offences relating to evidence and documents 314
464. Evidence and findings in other proceedings 315
465. Hearings to be recorded 315
466. Publication of information about proceedings 316
Subdivision 5 -- Decisions in proceedings
467. Reasons for decision 319
468. Extension of time to request reasons 320
469. Giving effect to Tribunal's decisions 320
Division 13 -- Rules
470. Power to make 321
471. Content 321
472. Publication and tabling 322
Division 14 -- Tribunal members
473. President of Tribunal 322
474. Other members 322
475. Terms and conditions of appointment 323
476. Remuneration 323
477. Resignation 324
478. Removal from office 324
479. Acting members 324
480. Delegation by President 325
Division 15 -- Registrar and other staff
481. Registrar 326
482. Functions of registrar 326
483. President may give registrar directions 327
484. Registry staff 327
485. Delegation by registrar 327
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Division 16 -- Annual reports
486. Annual report: preparation 328
487. Annual report: tabling 328
Division 17 -- Miscellaneous matters
488. Seal 329
489. Judicial notice of certain matters 329
490. Meetings of members 329
Part 22 -- Review by State
Administrative Tribunal
Division 1 -- Preliminary matters
491. Terms used 331
Division 2 -- Jurisdiction
492. Review of decisions of Mental Health Tribunal 331
493. Determination of questions of law before Mental
Health Tribunal 332
Division 3 -- Constitution
494. Constitution generally 332
495. Constitution for psychosurgical matters 332
496. Constitution for determining questions of law 333
Division 4 -- Procedural matters
497. No fees payable 333
498. Appearance and representation 334
499. Closed hearings 334
500. Publication of information about proceedings 335
Division 5 -- Appeals to Supreme Court
501. Appeals against SAT's decisions 339
502. Grounds of appeal 339
503. Time for appeal or leave to appeal 339
504. Certain parties must be represented 340
Part 23 -- Administration
Division 1 -- Preliminary matters
505. Term used: mental health service 341
Division 2 -- Chief Psychiatrist
Subdivision 1 -- Appointment, terms and conditions
506. Appointment 341
507. Terms and conditions of appointment 341
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508. Remuneration 341
509. Resignation 342
510. Removal from office 342
511. Acting Chief Psychiatrist 342
Subdivision 2 -- Functions and powers generally
512. Functions generally 343
513. Responsibility for treatment and care 343
514. Directions by Minister 344
515. Minister may request report about any matter 345
516. CEO of Health Department may request report
about treatment and care of patients 345
517. Powers generally 345
Subdivision 3 -- Specific powers relating to
treatment and care
518. Review of treatment 346
519. Visits to mental health services 347
520. Offence to interfere with visit to mental health
service 348
521. Directions to mental health services to disclose
information 349
Subdivision 4 -- Notifiable incidents
522. Application of this Subdivision 349
523. Term used: notifiable incident 349
524. Reporting notifiable incidents 350
525. Action that Chief Psychiatrist may take 351
526. Notification of decision to take action 351
527. Chief Psychiatrist's powers of investigation 352
528. Notification of outcome of investigation 352
Subdivision 5 -- Staff and facilities
529. Chief Psychiatrist's staff 352
530. Use of government staff and facilities 352
Subdivision 6 -- Annual reports
531. Annual report: preparation 353
532. Annual report: tabling 354
Subdivision 7 -- Miscellaneous matters
533. Request for information about patient or person
detained 354
534. Request for list of mentally impaired accused 355
535. Delegation by Chief Psychiatrist 355
page xxiii
Mental Health Bill 2013
Contents
Division 3 -- Mental health practitioners and
authorised mental health practitioners
536. Mental health practitioners 356
537. Authorised mental health practitioners 356
538. Register of authorised mental health practitioners 357
Division 4 -- Authorised hospitals
539. Authorised hospital: meaning 358
540. Authorisation of public hospitals 358
541. Patients to be transferred if hospital no longer
authorised 359
Division 5 -- Mental health services approved
for electroconvulsive therapy
542. Chief Psychiatrist to approve mental health
services 359
Division 6 -- Approved forms
543. Chief Psychiatrist to approve forms 360
544. Publication of approved forms and related
guidelines 360
Division 7 -- Guidelines and standards
545. Publication of guidelines and standards 360
546. Application, adoption or incorporation of other
documents 361
547. Publication on Agency's website 361
Division 8 -- Miscellaneous matters
548. Delegation by Minister or CEO 362
Part 24 -- Interstate arrangements
Division 1 -- Preliminary matters
549. Terms used 363
Division 2 -- Intergovernmental agreements
550. Agreements with other States and Territories 364
551. Agreement must be in place 364
552. Performance of functions under corresponding
laws or intergovernmental agreements 364
Division 3 -- Transfer to or from interstate
mental health service
553. Transfer from hospital to interstate mental health
service 365
page xxiv
Mental Health Bill 2013
Contents
554. Making transport order 366
555. Transfer from interstate mental health service to
hospital 366
556. Transport of interstate inpatient to hospital 367
Division 4 -- Community treatment orders
557. Treatment interstate under State order 368
558. Making transport order 368
559. Treatment in State under interstate order 369
560. Supervision in State under interstate order 369
Part 25 -- Ministerial inquiries
561. Appointment of person to conduct inquiry 370
562. Powers of investigation 370
563. Interfering with investigation 371
564. Conduct of inquiry generally 372
565. Evidence generally 372
566. Summons to give evidence or produce documents 373
567. Self-incrimination 373
568. Powers in relation to documents produced 373
569. Offences relating to evidence and documents 374
Part 26 -- Information
Division 1 -- Voluntary disclosure of
information by public authorities and
mental health services
570. Powers of Agency's CEO 375
571. Powers of CEOs of prescribed State authorities 377
572. Powers of CEOs of mental health services 378
573. Delegation by CEO of prescribed State authority 379
Division 2 -- Miscellaneous matters
574. Confidentiality 380
575. Authorised recording, disclosure or use of
information 381
576. Receipt and storage of, and access to, information
disclosed 382
Part 27 -- Miscellaneous matters
577. Restrictions on powers of medical practitioners and
mental health practitioners 383
page xxv
Mental Health Bill 2013
Contents
578. Obstructing or hindering person performing
functions 384
579. Amendment of referrals and orders 385
580. Medical record to be kept by mental health
services 385
581. Protection from liability when performing
functions 386
582. Protection from liability when detaining person
with mental illness 387
583. Relationship with Freedom of Information
Act 1992 387
584. Regulations 387
585. Review of this Act after 5 years 388
Schedule 1 -- Charter of Mental
Health Care Principles
Schedule 2 -- Notifiable events
Defined terms
page xxvi
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Mental Health Bill 2013
A Bill for
An Act --
• to provide for the treatment, care, support and protection of
people who have a mental illness; and
• to provide for the protection of the rights of people who have a
mental illness; and
• to provide for the recognition of the role of carers and families in
providing care and support to people who have a mental illness,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Mental Health Bill 2013
Part 1 Preliminary matters
s. 1
1 Part 1 -- Preliminary matters
2 1. Short title
3 This is the Mental Health Act 2013.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act -- on a day fixed by proclamation,
9 and different days may be fixed for different provisions.
10 3. Act binds Crown
11 This Act binds the State and, so far as the legislative power of
12 the State permits, the Crown in all its other capacities.
page 2
Mental Health Bill 2013
Terms and concepts Part 2
Definitions and notes Division 1
s. 4
1 Part 2 -- Terms and concepts
2 Division 1 -- Definitions and notes
3 4. Terms used
4 In this Act, unless the contrary intention appears --
5 admission, of a patient, means the admission of the patient by a
6 mental health service, whether the patient is admitted as an
7 inpatient or otherwise;
8 adult means a person who has reached 18 years of age;
9 advance health directive means any of the following --
10 (a) an advance health directive made under the GAA Act
11 Part 9B;
12 (b) an instrument recognised as such under the GAA Act
13 section 110ZA;
14 (c) a directive given by a patient under the common law
15 containing treatment decisions in respect of the patient's
16 future treatment;
17 Agency means the agency (as defined in the Public Sector
18 Management Act 1994 section 3(1)) principally assisting the
19 Minister in administering this Act;
20 approved form means a form approved by the Chief Psychiatrist
21 under section 543(1);
22 authorised hospital has the meaning given in section 539;
23 authorised mental health practitioner means an authorised
24 mental health practitioner designated as such by an order in
25 force under section 537;
26 bodily restraint has the meaning given in section 227;
27 carer, of a person, has the meaning given in section 280(1);
28 CEO means the chief executive officer of the Agency;
29 CEO of the Health Department means the chief executive
30 officer of the Health Department;
page 3
Mental Health Bill 2013
Part 2 Terms and concepts
Division 1 Definitions and notes
s. 4
1 Charter of Mental Health Care Principles means the Charter of
2 Mental Health Care Principles in Schedule 1;
3 Chief Mental Health Advocate means the Chief Mental Health
4 Advocate appointed under section 349;
5 Chief Psychiatrist means the Chief Psychiatrist appointed under
6 section 506(1);
7 child means a person who is under 18 years of age;
8 child and adolescent psychiatrist means a psychiatrist who has
9 qualifications and clinical training in the treatment of mental
10 illness in children;
11 close family member, of a person, has the meaning given in
12 section 281(1);
13 community mental health service means a service that conducts
14 assessments or examinations for the purposes of this Act or
15 provides treatment in the community, but does not include the
16 private practice of a medical practitioner or mental health
17 practitioner;
18 community treatment order has the meaning given in
19 section 23(1);
20 Director of the Complaints Office means the Director as
21 defined in section 305;
22 discharge, of a patient, means the discharge of the patient by a
23 mental health service, whether the patient was admitted as an
24 inpatient or otherwise;
25 document has the meaning given in the Evidence Act 1906
26 section 79B;
27 electroconvulsive therapy has the meaning given in section 192;
28 emergency psychiatric treatment has the meaning given in
29 section 202;
30 enduring guardian, of an adult, means the person's enduring
31 guardian as defined in the GAA Act section 3(1);
page 4
Mental Health Bill 2013
Terms and concepts Part 2
Definitions and notes Division 1
s. 4
1 enduring power of guardianship means --
2 (a) an enduring power of guardianship made under the
3 GAA Act Part 9A; or
4 (b) an instrument recognised as such under the GAA Act
5 section 110O;
6 file, in relation to an order, record or other document relating to
7 a patient or other person, means to put the order, record or other
8 document on the patient's or other person's medical record;
9 GAA Act means the Guardianship and Administration
10 Act 1990;
11 general hospital means a hospital (as defined in the Hospitals
12 and Health Services Act 1927 section 2(1)) where overnight
13 accommodation is provided to patients other than any of these
14 hospitals --
15 (a) an authorised hospital;
16 (b) a maternity home;
17 (c) a nursing home;
18 guardian, of an adult, means the person's guardian as defined in
19 the GAA Act section 3(1);
20 Health Department means the agency (as defined in the Public
21 Sector Management Act 1994 section 3(1)) principally assisting
22 the Health Minister in the administration of the Health
23 Legislation Administration Act 1984;
24 Health Minister means the Minister responsible for the
25 administration of the Health Legislation Administration
26 Act 1984;
27 hospital means --
28 (a) an authorised hospital; or
29 (b) a general hospital;
30 informed consent, to the provision of treatment, means consent
31 to the provision of the treatment given in accordance with Part 5
32 Division 2;
page 5
Mental Health Bill 2013
Part 2 Terms and concepts
Division 1 Definitions and notes
s. 4
1 inpatient treatment order has the meaning given in
2 section 22(1);
3 involuntary community patient means a person who is under a
4 community treatment order;
5 involuntary inpatient means a person who is under an inpatient
6 treatment order;
7 involuntary patient means a person who is under an involuntary
8 treatment order;
9 involuntary treatment order means --
10 (a) an inpatient treatment order; or
11 (b) a community treatment order;
12 legal practitioner means an Australian legal practitioner as
13 defined in the Legal Profession Act 2008 section 3;
14 medical practitioner means a person registered under the
15 Health Practitioner Regulation National Law (Western
16 Australia) in the medical profession;
17 mental health advocate means --
18 (a) the Chief Mental Health Advocate; or
19 (b) a mental health advocate engaged under section 350(1);
20 mental health practitioner has the meaning given in
21 section 536;
22 mental health service --
23 (a) means any of these services --
24 (i) a hospital, but only to the extent that the hospital
25 provides treatment or care to people who have or
26 may have a mental illness;
27 (ii) a community mental health service;
28 (iii) any service, or any service in a class of service,
29 prescribed by the regulations for this definition;
30 and
page 6
Mental Health Bill 2013
Terms and concepts Part 2
Definitions and notes Division 1
s. 4
1 (b) does not include --
2 (i) a private psychiatric hostel; or
3 (ii) a declared place as defined in the MIA Act
4 section 23;
5 Mental Health Tribunal means the Mental Health Tribunal
6 established by section 380;
7 mental illness has the meaning given in section 6;
8 mentally impaired accused has the meaning given in the
9 MIA Act section 23;
10 Mentally Impaired Accused Review Board means the Mentally
11 Impaired Accused Review Board established by the MIA Act
12 section 41;
13 metropolitan area means an area of the State prescribed by the
14 regulations as a metropolitan area;
15 MIA Act means the Criminal Law (Mentally Impaired Accused)
16 Act 1996;
17 Minister means the Minister responsible for the administration
18 of this Act;
19 neurosurgeon means a person --
20 (a) whose name is contained in the register of specialist
21 surgeons kept by the Medical Board of Australia under
22 the Health Practitioner Regulation National Law
23 (Western Australia) section 223; and
24 (b) who has clinical training in neurosurgery;
25 nominated person, of a person, means the person nominated
26 under section 273(1) to be the person's nominated person;
27 nomination means a nomination made under section 273(1);
28 nurse means a person who is registered under the Health
29 Practitioner Regulation National Law (Western Australia) in
30 the nursing and midwifery profession --
31 (a) whose name is entered on Division 1 of the Register of
32 Nurses kept under that Law as a registered nurse; or
page 7
Mental Health Bill 2013
Part 2 Terms and concepts
Division 1 Definitions and notes
s. 4
1 (b) whose name is entered on Division 2 of the Register of
2 Nurses kept under that Law as an enrolled nurse;
3 occupational therapist means a person registered under the
4 Health Practitioner Regulation National Law (Western
5 Australia) in the occupational therapy profession;
6 parent or guardian, of a child, means the person who has
7 parental responsibility (as defined in the Family Court Act 1997
8 section 68) for the child;
9 patient means --
10 (a) an involuntary patient; or
11 (b) a mentally impaired accused required under the
12 MIA Act to be detained at an authorised hospital; or
13 (c) a voluntary patient;
14 patient's psychiatrist means --
15 (a) if the patient is a voluntary patient -- the treating
16 psychiatrist; or
17 (b) if the patient is an involuntary patient who is under an
18 inpatient treatment order -- the treating psychiatrist; or
19 (c) if the patient is an involuntary patient who is under a
20 community treatment order -- the supervising
21 psychiatrist; or
22 (d) if the patient is a mentally impaired accused required
23 under the MIA Act to be detained at an authorised
24 hospital -- the treating psychiatrist;
25 personal information has the meaning given in the Freedom of
26 Information Act 1992 in the Glossary clause 1;
27 personal support person, of a person, means a person referred
28 to in section 7(2)(b)(i), (ii), (iii), (iv) or (v);
29 private hospital has the meaning given in the Hospitals and
30 Health Services Act 1927 section 2(1);
31 private psychiatric hostel has the meaning given in the
32 Hospitals and Health Services Act 1927 section 26P;
page 8
Mental Health Bill 2013
Terms and concepts Part 2
Definitions and notes Division 1
s. 4
1 psychiatrist means a medical practitioner --
2 (a) who is a fellow of the Royal Australian and New
3 Zealand College of Psychiatrists; or
4 (b) who holds specialist registration under the Health
5 Practitioner Regulation National Law (Western
6 Australia) in the specialty of psychiatry; or
7 (c) who holds limited registration under the Health
8 Practitioner Regulation National Law (Western
9 Australia) that enables the medical practitioner to
10 practise in the specialty of psychiatry;
11 psychologist means a person registered under the Health
12 Practitioner Regulation National Law (Western Australia) in
13 the psychology profession;
14 psychosurgery has the meaning given in section 205;
15 public hospital has the meaning given in the Hospitals and
16 Health Services Act 1927 section 2(1);
17 registration board has the meaning given in the Health and
18 Disability Services (Complaints) Act 1995 section 3(1);
19 remuneration has the meaning given in the Salaries and
20 Allowances Act 1975 section 4(1);
21 seclusion has the meaning given in section 212;
22 social worker means a person who is a member of, or is eligible
23 for membership of, the Australian Association of Social
24 Workers;
25 staff member, of a mental health service (however defined in
26 this Act) or a private psychiatric hostel, means a person --
27 (a) who is employed in the mental health service or private
28 psychiatric hostel under a contract of employment or
29 contract of training; or
30 (b) who provides services to the mental health service or
31 private psychiatric hostel under a contract for services;
32 supervising psychiatrist has the meaning given in section 113;
page 9
Mental Health Bill 2013
Part 2 Terms and concepts
Division 1 Definitions and notes
s. 4
1 traditional healer, in relation to an Aboriginal or Torres Strait
2 Islander community, means a person of Aboriginal or Torres
3 Strait Islander descent who --
4 (a) uses traditional (including spiritual) methods of healing;
5 and
6 (b) is recognised by the community as a traditional healer;
7 transport officer means a person, or a person in a class of
8 person, authorised under section 147 to a carry out a transport
9 order;
10 treating psychiatrist, in relation to a patient, means the
11 psychiatrist who is in charge of the patient's treatment;
12 treatment means the provision of a psychiatric, medical,
13 psychological or psychosocial intervention intended (whether
14 alone or in combination with one or more other therapeutic
15 interventions) to alleviate or prevent the deterioration of a
16 mental illness or a condition that is a consequence of a mental
17 illness, and does not include bodily restraint, seclusion or
18 sterilisation;
19 treatment decision, in relation to a person, means a decision to
20 give consent, or to refuse to give consent, to treatment being
21 provided to the person;
22 treatment in the community means treatment that can be
23 provided to a patient without detaining the patient at a hospital
24 under an inpatient treatment order;
25 treatment, support and discharge plan has the meaning given
26 in section 186;
27 voluntary inpatient means a voluntary patient who is admitted
28 by a mental health service as an inpatient;
29 voluntary patient means a person to whom treatment is being,
30 or is proposed to be, provided by a mental health service but
31 who is not --
32 (a) an involuntary patient; or
page 10
Mental Health Bill 2013
Terms and concepts Part 2
Mental illness Division 2
s. 5
1 (b) a mentally impaired accused required under the
2 MIA Act to be detained at an authorised hospital.
3 Note for the definition of voluntary patient:
4 A voluntary patient can also be --
5 (a) a person who is referred under section 26(2) or (3)(a) or 36(2) or is
6 under an order made under section 55(1)(c) or 61(1)(c); or
7 (b) a mentally impaired accused who is released from an authorised
8 hospital (whether unconditionally or on conditions) under a release
9 order made under the MIA Act section 35.
10 5. Notes and examples not part of Act
11 A note or example set out at the foot of a provision of this Act is
12 provided to assist understanding and does not form part of this
13 Act.
14 Division 2 -- Mental illness
15 6. When a person has a mental illness
16 (1) A person has a mental illness if the person has a condition
17 that --
18 (a) is characterised by a disturbance of thought, mood,
19 volition, perception, orientation or memory; and
20 (b) significantly impairs (temporarily or permanently) the
21 person's judgment or behaviour.
22 (2) A person does not have a mental illness merely because one or
23 more of these things apply --
24 (a) the person holds, or refuses or fails to hold, a particular
25 religious, cultural, political or philosophical belief or
26 opinion;
27 (b) the person engages in, or refuses or fails to engage in, a
28 particular religious, cultural or political activity;
29 (c) the person is, or is not, a member of a particular
30 religious, cultural or racial group;
page 11
Mental Health Bill 2013
Part 2 Terms and concepts
Division 3 Best interests of a person
s. 7
1 (d) the person has, or does not have, a particular political,
2 economic or social status;
3 (e) the person has a particular sexual preference or
4 orientation;
5 (f) the person is sexually promiscuous;
6 (g) the person engages in indecent, immoral or illegal
7 conduct;
8 (h) the person has an intellectual disability;
9 (i) the person uses alcohol or other drugs;
10 (j) the person is involved in, or has been involved in,
11 personal or professional conflict;
12 (k) the person engages in anti-social behaviour;
13 (l) the person has at any time been --
14 (i) provided with treatment; or
15 (ii) admitted by or detained at a hospital for the
16 purpose of providing the person with treatment.
17 (3) Subsection (2)(i) does not prevent the serious or permanent
18 physiological, biochemical or psychological effects of the use of
19 alcohol or other drugs from being regarded as an indication that
20 a person has a mental illness.
21 (4) A decision whether or not a person has a mental illness must be
22 made in accordance with internationally accepted standards
23 prescribed by the regulations for this subsection.
24 Division 3 -- Best interests of a person
25 7. Matters relevant to decision about person's best interests
26 (1) This section applies whenever a person or body is required
27 under this Act to decide what is or is not in the best interests of
28 a person.
page 12
Mental Health Bill 2013
Terms and concepts Part 2
Wishes of a person Division 4
s. 8
1 (2) The person or body making the decision must have regard to
2 these things --
3 (a) the person's wishes, to the extent that it is practicable to
4 ascertain those wishes;
5 (b) the views of each of these people --
6 (i) if the person has an enduring guardian or
7 guardian -- the enduring guardian or guardian;
8 (ii) if the person is a child -- the child's parent or
9 guardian;
10 (iii) if the person has a nominated person -- the
11 nominated person;
12 (iv) if the person has a carer -- the carer;
13 (v) if the person has a close family member -- the
14 close family member;
15 (c) any other matter that the person or body considers
16 relevant to making the decision.
17 Division 4 -- Wishes of a person
18 8. Matters relevant to ascertaining person's wishes
19 (1) This section applies whenever a person or body is required
20 under this Act to ascertain the wishes of a person in relation to a
21 matter.
22 (2) For the purposes of ascertaining those wishes, the person or
23 body must have regard to the following --
24 (a) any treatment decision in an advance health directive
25 made by the person that is relevant to the matter;
26 (b) any term of an enduring power of guardianship made by
27 the person that is relevant to the matter;
28 (c) anything that the person says or does that is relevant to
29 the matter if it is said or done at a time that is reasonably
30 contemporaneous with when those wishes are required
31 to be ascertained;
page 13
Mental Health Bill 2013
Part 2 Terms and concepts
Division 5 Communicating with a person
s. 9
1 (d) any other things that the person or body considers
2 relevant to ascertaining those wishes.
3 Division 5 -- Communicating with a person
4 9. Language, form of communication and terms to be used
5 (1) For this section, communication with a person includes the
6 provision to a person of any advice, explanation, information,
7 notification or reasons.
8 (2) Any communication with a person under this Act must be in a
9 language, form of communication and terms that the person is
10 likely to understand using any means of communication that is
11 practicable and using an interpreter if necessary and practicable.
page 14
Mental Health Bill 2013
Objects Part 3
s. 10
1 Part 3 -- Objects
2 10. Objects
3 (1) The objects of this Act are as follows --
4 (a) to ensure people who have a mental illness are provided
5 the best possible treatment and care --
6 (i) with the least possible restriction of their
7 freedom; and
8 (ii) with the least possible interference with their
9 rights; and
10 (iii) with respect for their dignity;
11 (b) to recognise the role of carers and families in the
12 treatment, care and support of people who have a mental
13 illness;
14 (c) to recognise and facilitate the involvement of people
15 who have a mental illness, their nominated persons and
16 their carers and families in the consideration of the
17 options that are available for their treatment and care;
18 (d) to help minimise the effect of mental illness on family
19 life;
20 (e) to ensure the protection of people who have or may have
21 a mental illness;
22 (f) to ensure the protection of the community.
23 (2) A person or body performing a function under this Act must
24 have regard to those objects.
page 15
Mental Health Bill 2013
Part 4 Charter of Mental Health Care Principles
s. 11
1 Part 4 -- Charter of Mental Health Care Principles
2 11. Regard to be had to Charter
3 A person or body performing a function under this Act must
4 have regard to the principles set out in the Charter of Mental
5 Health Care Principles.
6 12. Compliance with Charter by mental health services
7 (1) In this section --
8 mental health service includes a private psychiatric hostel.
9 (2) A mental health service must make every effort to comply with
10 the Charter of Mental Health Care Principles when providing
11 treatment, care and support to patients.
page 16
Mental Health Bill 2013
Decision making capacity and informed consent Part 5
Decision making capacity generally Division 1
s. 13
1 Part 5 -- Decision making capacity and
2 informed consent
3 Division 1 -- Decision making capacity generally
4 13. Capacity of adult to make decisions
5 (1) For the purposes of this Act, an adult is presumed to have the
6 capacity to make a decision about a matter relating to himself or
7 herself unless the adult is shown not to have that capacity.
8 (2) For the purposes of this Act, if an adult does not have the
9 capacity to make a decision about a matter relating to himself or
10 herself, the person who is authorised by law to do so may make
11 the decision on the adult's behalf.
12 14. Capacity of child to make decisions
13 (1) For the purposes of this Act, a child is presumed not to have the
14 capacity to make a decision about a matter relating to himself or
15 herself unless the child is shown to have that capacity.
16 (2) For the purposes of this Act, if a child does not have the
17 capacity to make a decision about a matter relating to himself or
18 herself, the child's parent or guardian may make the decision on
19 the child's behalf.
20 15. Determining capacity to make decisions
21 (1) For the purposes of this Act, a person has the capacity to make a
22 decision about a matter relating to himself or herself if another
23 person who is performing a function under this Act that requires
24 that other person to determine that capacity is satisfied that the
25 person has the capacity to --
26 (a) understand any information or advice about the decision
27 that is required under this Act to be provided to the
28 person; and
29 (b) understand the matters involved in the decision; and
page 17
Mental Health Bill 2013
Part 5 Decision making capacity and informed consent
Division 2 Informed consent to treatment
s. 16
1 (c) understand the effect of the decision; and
2 (d) weigh up the factors referred to in paragraphs (a), (b)
3 and (c) for the purpose of making the decision; and
4 (e) communicate the decision in some way.
5 (2) For the purposes of this Act, a decision made by a person about
6 a matter relating to himself or herself must be made freely and
7 voluntarily.
8 Division 2 -- Informed consent to treatment
9 16. Requirements for informed consent
10 (1) A person gives informed consent to the provision of treatment
11 to a patient (whether he or she or another person is the patient)
12 only if --
13 (a) the requirements of this Division in relation to making a
14 treatment decision about the provision of the treatment
15 are satisfied; and
16 (b) the consent is given freely and voluntarily.
17 (2) Failing to offer resistance does not by itself constitute giving
18 consent.
19 17. People who can give informed consent
20 Informed consent to the provision of treatment to a patient can
21 be given by --
22 (a) the patient; or
23 (b) if the patient does not have the capacity to make a
24 treatment decision about the provision of the treatment
25 to himself or herself -- the person who is authorised by
26 law to make the treatment decision on the patient's
27 behalf.
28 Notes for section 17:
29 1. An adult can give informed consent by making an advance health
30 directive (see the GAA Act section 110ZJ(2)).
page 18
Mental Health Bill 2013
Decision making capacity and informed consent Part 5
Informed consent to treatment Division 2
s. 18
1 2. An adult's enduring guardian or guardian, or the person responsible for
2 an adult, can give informed consent on the adult's behalf (see the GAA
3 Act section 110ZJ(3) to (5)).
4 3. A child's parent or guardian can give informed consent on the child's
5 behalf unless the child has the capacity to give informed consent (see
6 section 302(3)).
7 18. Determining capacity to make treatment decision
8 A person has the capacity to make a treatment decision about
9 the provision of treatment to a patient if another person who is
10 performing a function under this Act that requires that other
11 person to determine that capacity is satisfied that the person has
12 the capacity to --
13 (a) understand the things that are required under section 19
14 to be communicated to the person about the treatment;
15 and
16 (b) understand the matters involved in making the treatment
17 decision; and
18 (c) understand the effect of the treatment decision; and
19 (d) weigh up the factors referred to in paragraphs (a), (b)
20 and (c) for the purpose of making the treatment
21 decision; and
22 (e) communicate the treatment decision in some way.
23 19. Explanation of proposed treatment must be given
24 (1) Before a person is asked to make a treatment decision about the
25 provision of treatment to a patient, the person must be provided
26 with a clear explanation of the treatment --
27 (a) containing sufficient information to enable the person to
28 make a balanced judgment about the treatment; and
29 (b) identifying and explaining any alternative treatment
30 about which there is insufficient knowledge to justify it
31 being recommended or to enable its effect to be
32 predicted reliably; and
page 19
Mental Health Bill 2013
Part 5 Decision making capacity and informed consent
Division 2 Informed consent to treatment
s. 20
1 (c) warning the person of any risks inherent in the
2 treatment.
3 (2) The extent of the information required under subsection (1) to
4 be provided to a person is limited to information that a
5 reasonable person in the person's position would be likely to
6 consider significant to the treatment decision unless the person
7 providing the information knows, or could reasonably have been
8 expected to know, that the person is likely to consider other
9 information to be significant to the treatment decision.
10 (3) Subsection (1) applies despite any privilege claimed by a
11 person.
12 Note for section 19:
13 Any explanation provided under section 19(1) must be provided in accordance
14 with section 9(2).
15 20. Sufficient time for consideration
16 A person cannot be asked to make a treatment decision about
17 the provision of treatment to a patient unless the person is
18 given --
19 (a) sufficient time to consider the matters involved in the
20 treatment decision; and
21 (b) a reasonable opportunity to discuss those matters with
22 the medical practitioner or other health professional who
23 is proposing the provision of the treatment; and
24 (c) a reasonable opportunity to obtain any other advice or
25 assistance in relation to the treatment decision that the
26 person wishes.
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1 Part 6 -- Involuntary patients
2 Division 1 -- When a person will be an involuntary patient
3 21. Involuntary patient
4 (1) An involuntary patient is a person who is under an involuntary
5 treatment order.
6 (2) An involuntary treatment order is --
7 (a) an inpatient treatment order; or
8 (b) a community treatment order.
9 22. Inpatient treatment order
10 (1) An inpatient treatment order is an order in force under this Act
11 under which a person can be admitted by a hospital, and
12 detained there, to enable the person to be provided with
13 treatment without informed consent being given to the provision
14 of the treatment.
15 (2) An inpatient treatment order authorising a person's detention at
16 an authorised hospital may be made under section 55(1)(a),
17 56(1)(a)(i), 72(1)(a), 120(2)(a), 123(1)(a) or 131(2)(a).
18 (3) An inpatient treatment order authorising a person's detention at
19 a general hospital may be made under section 61(1)(a)
20 or 131(2)(a).
21 23. Community treatment order
22 (1) A community treatment order is an order in force under this Act
23 under which a person can be provided with treatment in the
24 community without informed consent being given to the
25 provision of the treatment.
26 (2) A community treatment order may be made under
27 section 55(1)(b), 56(1)(a)(ii), 61(1)(b), 72(1)(b), 75(1), 89(2)(b)
28 or 90(1)(a).
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s. 24
1 24. Making involuntary treatment order
2 (1) Only a psychiatrist may make an involuntary treatment order.
3 (2) A psychiatrist cannot make an involuntary treatment order
4 except in accordance with this Act.
5 (3) A psychiatrist cannot make an inpatient treatment order in
6 respect of a person unless satisfied, having regard to the criteria
7 specified in section 25(1), that the person is in need of an
8 inpatient treatment order.
9 (4) Before deciding whether or not to make an inpatient treatment
10 order in respect of a person, a psychiatrist must consider
11 whether the objects of this Act would be better achieved by
12 making a community treatment order in respect of the person.
13 (5) A psychiatrist cannot make a community treatment order in
14 respect of a person unless satisfied, having regard to the criteria
15 specified in section 25(2), that the person is in need of a
16 community treatment order.
17 (6) An involuntary treatment order made in respect of a person
18 must --
19 (a) be in force for as brief a period as practicable; and
20 (b) be reviewed regularly; and
21 (c) be revoked as soon as practicable after the person no
22 longer meets the criteria for the order.
23 25. Criteria for involuntary treatment order
24 (1) A person is in need of an inpatient treatment order only if all of
25 these criteria are satisfied --
26 (a) that the person has a mental illness for which the person
27 is in need of treatment;
28 (b) that, because of the mental illness, there is --
29 (i) a significant risk to the health or safety of the
30 person or to the safety of another person; or
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s. 25
1 (ii) a significant risk of serious harm to the person or
2 to another person;
3 (c) that the person does not demonstrate the capacity
4 required by section 18 to make a treatment decision
5 about the provision of the treatment to himself or
6 herself;
7 (d) that treatment in the community cannot reasonably be
8 provided to the person;
9 (e) that the person cannot be adequately provided with
10 treatment in a way that would involve less restriction on
11 the person's freedom of choice and movement than
12 making an inpatient treatment order.
13 (2) A person is in need of a community treatment order only if all
14 of these criteria are satisfied --
15 (a) that the person has a mental illness for which the person
16 is in need of treatment;
17 (b) that, because of the mental illness, there is --
18 (i) a significant risk to the health or safety of the
19 person or to the safety of another person; or
20 (ii) a significant risk of serious harm to the person or
21 to another person; or
22 (iii) a significant risk of the person suffering serious
23 physical or mental deterioration;
24 (c) that the person does not demonstrate the capacity
25 required by section 18 to make a treatment decision
26 about the provision of the treatment to himself or
27 herself;
28 (d) that treatment in the community can reasonably be
29 provided to the person;
30 (e) that the person cannot be adequately provided with
31 treatment in a way that would involve less restriction on
32 the person's freedom of choice and movement than
33 making a community treatment order.
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1 (3) A decision whether or not a person is in need of an inpatient
2 treatment order or a community treatment order must be made
3 having regard to the guidelines published under
4 section 545(1)(a) for that purpose.
5 Note for Division 1:
6 Part 21 Division 3 confers jurisdiction on the Mental Health Tribunal to
7 conduct reviews relating to involuntary patients.
8 Division 2 -- Referrals for examination
9 Subdivision 1 -- Person suspected of needing involuntary
10 treatment order
11 26. Referral for examination at authorised hospital or other
12 place
13 (1) A medical practitioner or authorised mental health practitioner
14 may refer a person under subsection (2) or (3)(a) for an
15 examination conducted by a psychiatrist if, having regard to the
16 criteria specified in section 25, the practitioner reasonably
17 suspects that --
18 (a) the person is in need of an involuntary treatment order;
19 or
20 (b) if the person is under a community treatment order --
21 the person is in need of an inpatient treatment order.
22 (2) The practitioner may refer the person for an examination to be
23 conducted by a psychiatrist at an authorised hospital.
24 (3) The practitioner --
25 (a) may refer the person for an examination to be conducted
26 by a psychiatrist at a place that is not an authorised
27 hospital if, in the practitioner's opinion, it is an
28 appropriate place to conduct the examination having
29 regard to the guidelines published under
30 section 545(1)(b) for that purpose; and
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1 (b) if the practitioner refers the person under
2 paragraph (a) -- must make any arrangements that are
3 necessary to enable the examination to be conducted at
4 that place.
5 (4) Subdivision 3 applies in relation to the referral of a person under
6 subsection (2) or (3)(a).
7 (5) Sections 27 to 30 apply in relation to a person who is referred
8 under subsection (2) or (3)(a).
9 Notes for section 26:
10 1. A person who is referred under section 26(2) or (3)(a) can be detained
11 under an order made under section 28(1) or (2) to enable the person to
12 be taken to the authorised hospital or other place and can be detained
13 there under section 52(1)(b) or 58(1)(b) to enable the person to be
14 examined.
15 2. Part 7 Division 4 applies in relation to the release of a person who is
16 detained under section 28(1) or (2), 52(1)(b) or 58(1)(b).
17 3. Part 7 Division 5 applies if a person who is detained under
18 section 28(1) or (2), 52(1)(b) or 58(1)(b) is absent without leave from
19 the authorised hospital or other place where the person is be detained.
20 27. Person to be taken to authorised hospital or other place as
21 soon as practicable
22 The person must be taken to the authorised hospital or other
23 place as soon as practicable and, in any event, before the referral
24 expires, whether or not a transport order is made under
25 section 29(1) in respect of the person.
26 28. Detention to enable person to be taken to authorised
27 hospital or other place
28 (1) A medical practitioner or authorised mental health practitioner
29 may make an order authorising the person's detention for up to
30 24 hours from the time when the referral is made if satisfied
31 that, because of the person's mental or physical condition, the
32 person needs to be detained to enable the person to be taken to
33 the authorised hospital or other place.
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1 (2) A medical practitioner or authorised mental health practitioner
2 may, immediately before the end of the period of detention
3 authorised under subsection (1) or any further period of
4 detention authorised under this subsection in respect of the
5 person, make an order authorising the continuation of the
6 person's detention for up to 24 hours from the end of that period
7 to enable the person to be taken to the authorised hospital or
8 other place.
9 (3) The person cannot be detained under orders made under this
10 section for a continuous period of more than --
11 (a) if the place where the referral is made is in a
12 metropolitan area -- 72 hours; or
13 (b) if the place where the referral is made is outside a
14 metropolitan area -- 144 hours.
15 (4) A practitioner cannot make an order under subsection (2) in
16 respect of the person unless --
17 (a) immediately before making the order, the practitioner
18 assesses the person; and
19 (b) as a consequence, the practitioner is satisfied that,
20 because of the person's mental or physical condition, the
21 person still needs to be detained to enable the person to
22 be taken to the authorised hospital or other place.
23 (5) Subdivision 4 applies in relation to an assessment required by
24 subsection (4)(a).
25 (6) An order made under this section must be in the approved form
26 and must include the following --
27 (a) the date and time when it is made;
28 (b) the date and time when it expires;
29 (c) the reasons for making it;
30 (d) the name, qualifications and signature of the practitioner
31 making it.
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1 (7) A practitioner who makes an order under this section in respect
2 of the person must, as soon as practicable, file it and give a copy
3 to the person.
4 (8) The making of an order under this section is an event to which
5 Part 9 applies and the practitioner who makes the order is the
6 person responsible under that Part for notification of that event.
7 (9) A practitioner who makes an order under this section in respect
8 of the person must ensure that the person has the opportunity
9 and the means to contact any carer, close family member or
10 other personal support person of the person, the person's
11 psychiatrist and the Chief Mental Health Advocate --
12 (a) as soon as practicable after the order is made; and
13 (b) at all reasonable times while the person is detained
14 under the order.
15 (10) The person cannot continue to be detained if, by the end of a
16 period of detention authorised under this section in respect of
17 the person --
18 (a) the person has not been taken to the authorised hospital
19 or other place; and
20 (b) an order under subsection (2) authorising the
21 continuation of the person's detention from the end of
22 the period has not been made or, because of
23 subsection (3), cannot be made; and
24 (c) the person has not been apprehended under a transport
25 order made under section 29(1).
26 (11) The person cannot continue to be detained if the referral expires
27 before the person is taken to the authorised hospital or other
28 place.
29 (12) The release of a person because of subsection (10) or (11) is an
30 event to which Part 9 applies and a medical practitioner or
31 authorised mental health practitioner is the person responsible
32 under that Part for notification of that event.
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1 29. Making transport order
2 (1) A medical practitioner or authorised mental health practitioner
3 may make a transport order in respect of the person.
4 (2) The practitioner cannot make the transport order unless satisfied
5 that --
6 (a) because of the person's mental or physical condition, the
7 person needs to be taken to the authorised hospital or
8 other place; and
9 (b) no other safe means of taking the person is reasonably
10 available.
11 (3) Part 10 applies in relation to the transport order.
12 (4) The making of a transport order under subsection (1) is an event
13 to which Part 9 applies and the practitioner who makes the order
14 is the person responsible under that Part for notification of that
15 event.
16 30. Effect of referral on community treatment order
17 A community treatment order that is in force in respect of a
18 person who is referred under section 26(2) or (3)(a) is
19 suspended for the period --
20 (a) beginning when the referral is made; and
21 (b) ending when the first of these things occurs --
22 (i) a psychiatrist makes an order under
23 section 55(1)(a) or (d), 56(1)(a)(i) or (iii),
24 61(1)(a) or (d) or 72(1)(a) or (c) in respect of the
25 person;
26 (ii) the referral is revoked under section 31(1);
27 (iii) the person cannot continue to be detained
28 because section 28(10) or (11), 52(4), 58(4)
29 or 70(4) applies.
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1 Notes for section 30:
2 1. A community treatment order that the patient is under is automatically
3 revoked under section 116(b) if a psychiatrist makes an inpatient
4 treatment order under section 55(1)(a), 56(1)(a)(i), 61(1)(a) or 72(1)(a)
5 in respect of the involuntary community patient.
6 2. A community treatment order is no longer suspended if a psychiatrist
7 makes an order under section 55(1)(d), 56(1)(a)(iii), 61(1)(d)
8 or 72(1)(c) that the involuntary community patient cannot continue to
9 be detained.
10 3. A community treatment order remains suspended until the period of
11 the suspension ends under section 30(b), or until the community
12 treatment order is revoked under section 120(2)(b) or 131(2)(b), if a
13 psychiatrist makes an order under section 61(1)(c) in respect of the
14 involuntary community patient.
15 31. Revoking referral
16 (1) A medical practitioner or authorised mental health practitioner
17 may make an order revoking a referral made under section 26(2)
18 or (3)(a) if satisfied that the person who is referred is no longer
19 in need of an involuntary treatment order.
20 (2) The practitioner cannot revoke the referral if it was made by
21 another practitioner unless --
22 (a) the practitioner has consulted the other practitioner
23 about whether or not to revoke the referral; or
24 (b) despite reasonable efforts to do so, the other practitioner
25 could not be contacted.
26 (3) The order must be in the approved form and must include the
27 following --
28 (a) the date and time when it is made;
29 (b) the reasons for making it;
30 (c) if the other practitioner was consulted -- a record of the
31 consultation;
32 (d) if the other practitioner could not be contacted -- a
33 record of the efforts made to do so;
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1 (e) the name, qualifications and signature of the
2 practitioner.
3 (4) The practitioner must, as soon as practicable, file the order and
4 give a copy to the person.
5 (5) The practitioner must, as soon as practicable --
6 (a) advise the transport officer or police officer responsible
7 for carrying out any transport order made under
8 section 29(1) in respect of the person that the referral
9 has been revoked under subsection (1) and that therefore
10 the transport order has been revoked under section 153;
11 and
12 (b) file a record of that advice.
13 (6) The person cannot continue to be detained if the referral is
14 revoked under subsection (1).
15 (7) The release of a person because of subsection (6) is an event to
16 which Part 9 applies and the practitioner who revokes the
17 referral is the person responsible under that Part for notification
18 of that event.
19 Subdivision 2 -- Voluntary inpatient admitted by
20 authorised hospital
21 32. Application of this Subdivision
22 This Subdivision applies in relation to a voluntary inpatient who
23 is admitted by an authorised hospital.
24 33. Effect of admission on community treatment order
25 Any community treatment order in force in respect of the
26 voluntary inpatient is suspended for the period --
27 (a) beginning when the voluntary inpatient is admitted as an
28 inpatient by the authorised hospital; and
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1 (b) ending when the first of these things occurs --
2 (i) a psychiatrist makes an order under
3 section 55(1)(a) or 56(1)(a)(i);
4 (ii) the voluntary inpatient is discharged as an
5 inpatient by the authorised hospital.
6 Notes for section 33:
7 1. A community treatment order is automatically revoked under
8 section 116(b) if a psychiatrist makes an inpatient treatment order
9 under section 55(1)(a) or 56(1)(a)(i) in respect of the voluntary
10 inpatient.
11 2. A community treatment order can be revoked under section 120(2)(b)
12 or 131(2)(b).
13 34. Person in charge of ward may order assessment
14 (1) The person in charge of the voluntary inpatient's ward may
15 make an order for an assessment of the voluntary inpatient by a
16 medical practitioner or authorised mental health practitioner at
17 the authorised hospital if --
18 (a) the voluntary inpatient wants to leave the authorised
19 hospital against medical advice; and
20 (b) having regard to the criteria specified in section 25, the
21 person in charge reasonably suspects that the voluntary
22 inpatient is in need of an involuntary treatment order.
23 (2) The order must be in the approved form and must include the
24 following --
25 (a) the date and time when it is made;
26 (b) the reasons for making it;
27 (c) the name, qualifications and signature of the person in
28 charge.
29 (3) The voluntary inpatient can be detained under the order at the
30 authorised hospital for up to 6 hours from the time when the
31 order was made to enable the assessment to be conducted.
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1 (4) The person in charge of the voluntary inpatient's ward must, as
2 soon as practicable, file the order and give a copy to the
3 voluntary patient.
4 (5) The person in charge of the voluntary inpatient's ward must
5 ensure that the inpatient has the opportunity and the means to
6 contact any carer, close family member or other personal
7 support person of the inpatient, the inpatient's psychiatrist and
8 the Chief Mental Health Advocate --
9 (a) as soon as practicable after the order is made; and
10 (b) at all reasonable times while the voluntary inpatient is
11 detained under the order.
12 (6) Subdivision 4 applies in relation to an assessment ordered under
13 subsection (1).
14 (7) The voluntary inpatient cannot continue to be detained if, by the
15 end of the 6-hour period referred to in subsection (3) --
16 (a) the assessment has not been completed; or
17 (b) the assessment has been completed but a referral has not
18 been made under section 36(2) in respect of the
19 voluntary inpatient.
20 35. Revoking order for assessment
21 (1) The person who makes an order under section 34(1) for an
22 assessment of a voluntary inpatient may, at any time before the
23 assessment is commenced, make an order revoking the order for
24 an assessment if satisfied that the patient is no longer in need of
25 an involuntary treatment order.
26 (2) The order must be in the approved form and must include the
27 following --
28 (a) the date and time when it is made;
29 (b) the reasons for making it;
30 (c) the name, qualifications and signature of the person.
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1 (3) The person who makes the order must, as soon as practicable,
2 file it and give a copy to the voluntary patient.
3 (4) The voluntary inpatient cannot continue to be detained if the
4 order for an assessment is revoked under subsection (1).
5 36. Referral for examination at authorised hospital
6 (1) This section applies if the voluntary inpatient is assessed by a
7 medical practitioner or authorised mental health practitioner --
8 (a) because of an order made under section 34(1); or
9 (b) in the course of the voluntary inpatient's treatment while
10 admitted by the authorised hospital.
11 (2) The practitioner may refer the voluntary inpatient for an
12 examination to be conducted by a psychiatrist at the authorised
13 hospital if, having regard to the criteria specified in section 25,
14 the practitioner reasonably suspects that the inpatient is in need
15 of an involuntary treatment order.
16 (3) Subdivision 3 applies in relation to the referral of a voluntary
17 inpatient under subsection (2).
18 Notes for section 36:
19 1. A voluntary patient who is referred under section 36(2) can be detained
20 at the authorised hospital under section 53(1) to enable the voluntary
21 patient to be examined.
22 2. Part 7 Division 4 applies in relation to the release of a voluntary patient
23 who is detained under section 53(1).
24 3. Part 7 Division 5 applies if a voluntary patient who is detained under
25 section 53(1) is absent without leave from the authorised hospital
26 where the voluntary patient is detained.
27 37. Revoking referral
28 (1) A medical practitioner or authorised mental health practitioner
29 may make an order revoking a referral made under section 36(2)
30 if satisfied that the voluntary inpatient who is referred is no
31 longer in need of an involuntary treatment order.
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1 (2) The practitioner cannot revoke the referral if it was made by
2 another practitioner unless --
3 (a) the practitioner has consulted the other practitioner
4 about whether or not to revoke the referral; or
5 (b) despite reasonable efforts to do so, the other practitioner
6 could not be contacted.
7 (3) The order must be in the approved form and must include the
8 following --
9 (a) the date and time when it is made;
10 (b) the reasons for the revocation;
11 (c) if the other practitioner was consulted -- a record of the
12 consultation;
13 (d) if the other practitioner could not be contacted -- a
14 record of the efforts made to do so;
15 (e) the name, qualifications and signature of the practitioner
16 making it.
17 (4) The practitioner must, as soon as practicable, file the order and
18 give a copy to the voluntary patient.
19 (5) The voluntary inpatient cannot continue to be detained if the
20 referral is revoked under subsection (1).
21 Subdivision 3 -- Requirements for referral
22 38. Application of this Subdivision
23 This Subdivision applies in relation to the referral of a person
24 for an examination conducted by a psychiatrist that is made by a
25 medical practitioner or authorised mental health practitioner
26 under section 26(2) or (3)(a) or 36(2).
27 39. No referral without assessment
28 (1) A practitioner cannot refer a person unless the practitioner has
29 assessed the person.
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1 (2) Subdivision 4 applies in relation to an assessment required by
2 subsection (1).
3 40. Time limit for making referral
4 (1) A referral cannot be made under section 26(2) or (3)(a) more
5 than 48 hours after the time when the assessment required by
6 section 39(1) is completed.
7 (2) A referral can only be made under section 36(2) immediately
8 after the time when the assessment required by section 39(1) is
9 completed.
10 41. Form of referral
11 A referral must be in the approved form and must --
12 (a) include the following --
13 (i) the date and time when it is made;
14 (ii) the date and time when it will expire;
15 (iii) the place where it is made;
16 (iv) whether or not it can be extended under
17 section 45 and, if it can, the process for
18 extending it;
19 (v) the place where the examination will be
20 conducted;
21 (vi) the date and time when the assessment required
22 by section 39(1) was completed;
23 and
24 (b) certify that, having regard to the criteria specified in
25 section 25, the practitioner making it reasonably
26 suspects that the person who is referred is in need of an
27 involuntary treatment order; and
28 (c) include the information on which the suspicion is based;
29 and
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1 (d) in respect of so much of that information as was
2 obtained during the assessment by the practitioner
3 making the referral, distinguish between --
4 (i) the information obtained from the person who is
5 referred, including by observing the person and
6 asking the person questions; and
7 (ii) the information obtained from another person or
8 from the person's medical record;
9 and
10 (e) include the name, qualifications and signature of the
11 practitioner making the referral.
12 42. Providing information contained in referral to person
13 referred
14 (1) The practitioner must provide the person who is referred with
15 the information referred to in section 41(a) and (b) and, unless
16 subsection (2) applies, the information referred to in
17 section 41(c).
18 (2) The practitioner cannot provide the person who is referred any
19 information referred to in section 41(c) that was provided to the
20 practitioner by someone other than the person on condition that
21 the information not be provided to the person.
22 (3) The information provided under subsection (1) must be in the
23 approved form.
24 43. Copy of referral must be filed
25 The practitioner must file a copy of the referral.
26 44. Period of referral made under s. 26(2) or (3)(a)
27 A referral made under section 26(2) or (3)(a) remains in force
28 for 72 hours from the time when the referral was made unless
29 the referral is extended under section 45.
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1 45. Extending referral made outside metropolitan area
2 (1) This section applies if --
3 (a) the place where a referral is made under section 26(2)
4 or (3)(a) is outside a metropolitan area; and
5 (b) the person responsible for taking the person who is
6 referred to the place where the examination will be
7 conducted forms the opinion that the referral is likely to
8 expire before the person is received into the hospital or
9 other place.
10 (2) The person responsible --
11 (a) may orally request an extension of the referral from --
12 (i) the medical practitioner or authorised mental
13 health practitioner who made the referral; or
14 (ii) if the practitioner referred to in subparagraph (i)
15 is not reasonably available -- another medical
16 practitioner or authorised mental health
17 practitioner who is at the same place as the
18 practitioner referred to in subparagraph (i); or
19 (iii) if neither the practitioner referred to in
20 subparagraph (i) nor a practitioner referred to in
21 subparagraph (ii) is reasonably available --
22 another medical practitioner or authorised mental
23 health practitioner;
24 or
25 (b) may extend the referral himself or herself if --
26 (i) there is no medical practitioner or authorised
27 mental health practitioner reasonably available to
28 whom an application could be made under
29 paragraph (a); and
30 (ii) the person responsible is a medical practitioner
31 or authorised mental health practitioner.
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1 (3) The practitioner or person responsible may extend the referral if
2 satisfied that the referral is likely to expire before the person is
3 received into the authorised hospital or other place.
4 (4) The referral may be extended for a further period of 72 hours
5 from the time when the 72-hour period referred to in section 44
6 ends.
7 (5) The person who extends the referral must, as soon as
8 practicable --
9 (a) record the extension in the approved form, specifying
10 the following --
11 (i) the date and time when the referral was
12 extended;
13 (ii) the date and time when, because of the extension,
14 the referral will expire;
15 (iii) the reasons for the extension;
16 and
17 (b) file the record and give a copy to the person who is
18 referred.
19 (6) The referral cannot be extended more than once.
20 46. Changing place where examination will be conducted
21 (1) A medical practitioner or authorised mental health practitioner
22 may make an order changing the place specified in a referral
23 made under section 26(2) or (3)(a) as the place where the
24 examination will be conducted.
25 (2) The practitioner cannot change the place specified in the referral
26 unless the practitioner has consulted a medical practitioner or
27 authorised mental health practitioner at the place where, if the
28 change is made, the examination will be conducted.
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1 (3) The practitioner must, as soon as practicable --
2 (a) advise the person responsible for taking the person who
3 is referred to the place where the examination will be
4 conducted of the change; and
5 (b) record the change in the approved form, specifying --
6 (i) the date and time when the change was made;
7 and
8 (ii) the place where the examination was to have
9 been conducted; and
10 (iii) the place where, because of the change, the
11 examination will be conducted;
12 and
13 (c) file the record and give a copy to the person who is
14 referred.
15 (4) If, because of the change, the examination will be conducted at
16 an authorised hospital instead of a place that is not an authorised
17 hospital, this Act applies as if the referral had been made under
18 section 26(2) instead of section 26(3)(a).
19 (5) If, because of the change, the examination will be conducted at
20 a place that is not an authorised hospital instead of an authorised
21 hospital, this Act applies as if the referral had been made under
22 section 26(3)(a) instead of section 26(2).
23 Subdivision 4 -- Conduct of assessment
24 47. Application of this Subdivision
25 This Subdivision applies in relation to the conduct of an
26 assessment by a medical practitioner or authorised mental health
27 practitioner that is required by, or has been ordered under,
28 section 28(4)(a), 34(1), 39(1) or 62(4)(a).
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1 48. How assessment must be conducted
2 (1) In this section --
3 prescribed health professional means --
4 (a) a medical practitioner; or
5 (b) a nurse; or
6 (c) an occupational therapist; or
7 (d) a psychologist; or
8 (e) a social worker; or
9 (f) if the person being assessed is of Aboriginal or Torres
10 Strait Islander descent --
11 (i) a health professional listed in paragraphs (a)
12 to (e); or
13 (ii) an Aboriginal or Torres Strait Islander mental
14 health worker.
15 (2) The assessment must be conducted in the least restrictive way,
16 and the least restrictive environment, practicable.
17 (3) Unless subsection (4) applies, the practitioner and the person
18 being assessed --
19 (a) must be in one another's physical presence; or
20 (b) if that is not practicable -- must be able to hear one
21 another without using a communication device (for
22 example, by being able to hear one another through a
23 door).
24 (4) The practitioner may conduct the assessment using audiovisual
25 communication if --
26 (a) the person being assessed is outside a metropolitan area;
27 and
28 (b) it is not practicable for the practitioner to comply with
29 subsection (3)(a) or (b); and
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1 (c) a prescribed health professional and the person being
2 assessed --
3 (i) are in one another's physical presence; or
4 (ii) if that is not practicable -- are able to hear one
5 another without using a communication device
6 (for example, by being able to hear one another
7 through a door).
8 (5) For the purposes of this Act, an assessment conducted using
9 audiovisual communication is taken to be conducted, and any
10 referral made as a result is taken to be made, at the place where
11 the person assessed is when the assessment is conducted.
12 49. Information to which practitioner may have regard
13 (1) The practitioner may have regard to any information about the
14 person being assessed that is obtained by the practitioner --
15 (a) from --
16 (i) the person, including information obtained by
17 observing the person and asking the person
18 questions; or
19 (ii) any other person;
20 and
21 (b) from the person's medical record.
22 (2) The practitioner cannot conclude that there is a reasonable
23 suspicion that the person being assessed is in need of an
24 involuntary treatment order solely on the basis of information
25 referred to in either or both of subsection (1)(a)(ii) and (b).
26 50. Assessment of person of Aboriginal or Torres Strait
27 Islander descent
28 To the extent that it is practicable and appropriate to do so, the
29 assessment of a person who is of Aboriginal or Torres Strait
30 Islander descent must be conducted in collaboration with --
31 (a) Aboriginal or Torres Strait Islander mental health
32 workers; and
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1 (b) significant members of the person's community,
2 including elders and traditional healers.
3 Division 3 -- Examinations
4 Subdivision 1 -- Examination at authorised hospital
5 51. Application of this Subdivision
6 This Subdivision applies in relation to a person who is referred
7 under section 26(2) or 36(2) for an examination to be conducted
8 by a psychiatrist at an authorised hospital.
9 52. Detention for examination on referral made under s. 26(2)
10 (1) A person who is referred under section 26(2) --
11 (a) must be received into the authorised hospital unless
12 subsection (2) applies; and
13 (b) can be detained there, to enable the examination to be
14 conducted, for up to 24 hours from the time when the
15 person is received.
16 (2) The person cannot be received into the authorised hospital if the
17 referral has expired.
18 (3) The person in charge of the authorised hospital must ensure that
19 the person has the opportunity and the means to contact any
20 carer, close family member or other personal support person of
21 the person, the person's psychiatrist and the Chief Mental
22 Health Advocate --
23 (a) as soon as practicable after the person is received into
24 the authorised hospital; and
25 (b) at all reasonable times while the person is detained there
26 under subsection (1)(b).
27 (4) The person cannot continue to be detained if, by the end of the
28 24-hour period referred to in subsection (1)(b) --
29 (a) the examination has not been completed; or
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1 (b) the examination has been completed but an order has not
2 been made under section 55(1) in respect of the person.
3 (5) Reception at an authorised hospital under this section is not
4 admission by the hospital under this Act.
5 53. Detention for examination on referral made under s. 36(2)
6 (1) A person who is referred under section 36(2) can be detained at
7 the authorised hospital, to enable the examination to be
8 conducted, for up to 24 hours from the time when --
9 (a) if section 36(1)(a) applies -- the order for the
10 assessment of the person was made under section 34(1);
11 or
12 (b) if section 36(1)(b) applies -- the person was referred
13 under section 36(2).
14 (2) The person in charge of the authorised hospital must ensure that
15 the person has the opportunity and the means to contact any
16 carer, close family member or other personal support person of
17 the person, the person's psychiatrist and the Chief Mental
18 Health Advocate --
19 (a) as soon as practicable after the person is detained under
20 subsection (1) at the authorised hospital; and
21 (b) at all reasonable times while the person is detained there
22 under subsection (1).
23 (3) The person cannot continue to be detained if, by the end of the
24 24-hour period referred to in subsection (1)(a) or (b) --
25 (a) the examination has not been completed; or
26 (b) the examination has been completed but an order has not
27 been made under section 55(1) in respect of the person.
28 54. Conducting examination
29 Subdivision 6 applies in relation to the conduct of the
30 examination referred to in section 52(1)(b) or 53(1).
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1 55. What psychiatrist must do on completing examination
2 (1) On completing the examination referred to in section 52(1)(b)
3 or 53(1), the psychiatrist must make one of these orders --
4 (a) an inpatient treatment order authorising the person's
5 detention at the authorised hospital for the period
6 specified in the order in accordance with section 87(a)
7 or (b);
8 (b) a community treatment order in respect of the person;
9 (c) an order authorising the continuation of the person's
10 detention at the authorised hospital to enable a further
11 examination to be conducted by a psychiatrist;
12 (d) an order that the person cannot continue to be detained.
13 (2) The order must be in the approved form and must include the
14 following --
15 (a) the date and time when it is made;
16 (b) if it is made under subsection (1)(a), (b) or (c) -- the
17 reasons for making it;
18 (c) the name, qualifications and signature of the
19 psychiatrist.
20 (3) The person can continue to be detained at the authorised
21 hospital under an order made under subsection (1)(c) for the
22 period specified in the order, which cannot exceed 72 hours
23 from the time when the person was --
24 (a) received into the authorised hospital under
25 section 52(1)(a); or
26 (b) detained at the authorised hospital under section 53(1).
27 (4) An order made under subsection (1)(c) cannot be extended.
28 (5) The psychiatrist must, as soon as practicable, file the order
29 made under subsection (1) and give a copy to the person.
30 (6) The making of an order under subsection (1) is an event to
31 which Part 9 applies and the person in charge of the authorised
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1 hospital is the person responsible under that Part for notification
2 of that event.
3 Notes for section 55:
4 1. A community treatment order in respect of an involuntary community
5 patient who is referred under section 26(2) or 36(2) is automatically
6 revoked under section 116(b) if a psychiatrist makes an inpatient
7 treatment order under section 55(1)(a) in respect of the involuntary
8 community patient.
9 2. Part 7 Division 4 applies in relation to the release of a person who is
10 detained at an authorised hospital under an order made under
11 section 55(1)(c).
12 3. Part 7 Division 5 applies if a person who is under an order made under
13 section 55(1)(c) is absent without leave from the authorised hospital
14 where the person can be detained under the order.
15 4. A community treatment order in respect of an involuntary community
16 patient who is referred under section 26(2) is no longer suspended if a
17 psychiatrist makes an order under section 55(1)(d) that the involuntary
18 community patient cannot continue to be detained (see
19 section 30(b)(i)).
20 56. Effect of order for continuation of detention
21 (1) An order made under section 55(1)(c) authorises the
22 continuation of the person's detention until the first of these
23 things occurs --
24 (a) a psychiatrist conducts the further examination and
25 makes one of these orders --
26 (i) an inpatient treatment order authorising the
27 person's detention at the authorised hospital for
28 the period specified in the order in accordance
29 with section 87(a) or (b);
30 (ii) a community treatment order in respect of the
31 person;
32 (iii) an order that the person cannot continue to be
33 detained;
34 (b) the expiry of the period specified in the order under
35 section 55(3).
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1 (2) An order made under subsection (1)(a) must be in the approved
2 form and must include the following --
3 (a) the date and time when it is made;
4 (b) if it is made under subsection (1)(a)(i) or (ii) -- the
5 reasons for making it;
6 (c) the name, qualifications and signature of the psychiatrist
7 making it.
8 (3) A psychiatrist who makes an order under subsection (1)(a)
9 must, as soon as practicable, file it and give a copy to the
10 person.
11 Notes for section 56:
12 1. A community treatment order in respect of an involuntary community
13 patient who is referred under section 26(2) or 36(2) is automatically
14 revoked under section 116(b) if a psychiatrist makes an inpatient
15 treatment order under section 56(1)(a)(i) in respect of the involuntary
16 community patient.
17 2. A community treatment order in respect of an involuntary community
18 patient who is referred under section 26(2) is no longer suspended if a
19 psychiatrist makes an order under section 56(1)(a)(iii) that the
20 involuntary community patient cannot continue to be detained (see
21 section 30(b)(i)).
22 Subdivision 2 -- Examination at place that is not authorised hospital
23 57. Application of this Subdivision
24 This Subdivision applies in relation to a person who is referred
25 under section 26(3)(a) for an examination to be conducted by a
26 psychiatrist at a place that is not an authorised hospital.
27 58. Detention for examination
28 (1) The person --
29 (a) must be received into the place unless subsection (2)
30 applies; and
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1 (b) can be detained there, to enable the examination to be
2 conducted, for up to 24 hours from the time when the
3 person is received.
4 (2) The person cannot be received into the place if the referral has
5 expired.
6 (3) The person in charge of the place must ensure that the person
7 has the opportunity and the means to contact any carer, close
8 family member or other personal support person of the person,
9 the person's psychiatrist and the Chief Mental Health
10 Advocate --
11 (a) as soon as practicable after the person is received into
12 the place; and
13 (b) at all reasonable times while the person is detained there
14 under subsection (1)(b).
15 (4) The person cannot continue to be detained if, by the end of the
16 24-hour period referred to in subsection (1)(b) --
17 (a) either --
18 (i) the examination has not been completed; or
19 (ii) the examination has been completed but an order
20 has not been made under section 61(1) in respect
21 of the person;
22 and
23 (b) if the place is outside a metropolitan area -- an order
24 authorising the continuation of the person's detention
25 from the end of that period has not been made under
26 section 59(2).
27 59. Detention at place outside metropolitan area
28 (1) This section applies if --
29 (a) the person is referred for an examination at a place that
30 is outside a metropolitan area; and
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1 (b) it is not practicable to complete the examination within
2 the 24-hour period referred to in section 58(1)(b).
3 (2) A medical practitioner or authorised mental health practitioner
4 at the place may make an order authorising the continuation of
5 the person's detention at the place, to enable the examination to
6 be completed, for up to an additional 48 hours from the end of
7 the 24-hour period.
8 (3) The order must be in the approved form and must include the
9 following --
10 (a) the date and time when it is made;
11 (b) the date and time when it expires;
12 (c) the reasons for the continuation;
13 (d) the name, qualifications and signature of the practitioner
14 making it.
15 (4) The practitioner who makes the order must, as soon as
16 practicable, file it and give a copy to the person.
17 (5) The practitioner who makes the order must ensure that the
18 person has the opportunity and the means to contact any carer,
19 close family member or other personal support person of the
20 person, the person's psychiatrist and the Chief Mental Health
21 Advocate --
22 (a) as soon as practicable after the order is made; and
23 (b) at all reasonable times while the person is detained
24 under the order.
25 (6) The person cannot continue to be detained if, by the end of the
26 additional 48-hour period --
27 (a) the examination has not been completed; or
28 (b) the examination has been completed but an order has not
29 been made under section 61(1) in respect of the person.
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1 60. Conducting examination
2 Subdivision 6 applies in relation to the conduct of the
3 examination.
4 61. What psychiatrist must do on completing examination
5 (1) On completing the examination, the psychiatrist must make one
6 of these orders --
7 (a) an inpatient treatment order authorising the person's
8 detention at the general hospital specified in the order
9 for the period specified in the order in accordance with
10 section 87(a) or (b);
11 (b) a community treatment order in respect of the person;
12 (c) an order authorising the person's reception at an
13 authorised hospital, and the person's detention there, to
14 enable an examination to be conducted by a psychiatrist;
15 (d) an order that the person cannot continue to be detained.
16 (2) However, the psychiatrist cannot make an order under
17 subsection (1)(a) unless --
18 (a) satisfied that attempting to take the person to, or to
19 detain the person at, an authorised hospital poses a
20 significant risk to the person's physical health; and
21 (b) the Chief Psychiatrist consents to the order being made.
22 (3) The order must be in the approved form and must include the
23 following --
24 (a) the date and time when it is made;
25 (b) if it is made under subsection (1)(a), (b) or (c) -- the
26 reasons for making it;
27 (c) the name, qualifications and signature of the
28 psychiatrist.
29 (4) The psychiatrist must, as soon as practicable, file the order and
30 give a copy to the person.
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1 (5) The making of an order under subsection (1) is an event to
2 which Part 9 applies and the psychiatrist who makes the order is
3 the person responsible under that Part for notification of that
4 event.
5 Notes for section 61:
6 1. A community treatment order in respect of a person who is referred
7 under section 26(3)(a) is automatically revoked under section 116(b) if
8 a psychiatrist makes an inpatient treatment order under
9 section 61(1)(a) in respect of the involuntary community patient.
10 2. Part 7 Division 4 applies in relation to the release of a person who is
11 detained at an authorised hospital under an order made under
12 section 61(1)(c).
13 3. Part 7 Division 5 applies if a person who is under an order made under
14 section 61(1)(c) is absent without leave from the authorised hospital
15 where the person can be detained under the order.
16 4. A community treatment order in respect of a person who is referred
17 under section 26(3)(a) is no longer suspended if a psychiatrist makes
18 an order under section 61(1)(d) that the involuntary community patient
19 cannot continue to be detained (see section 30(b)(i)).
20 62. Detention to enable person to be taken to hospital
21 (1) A medical practitioner or authorised mental health practitioner
22 may make an order authorising the continuation of the person's
23 detention for up to 24 hours from the time when the order under
24 section 61(1)(a) or (c) is made if satisfied that, because of the
25 person's mental or physical condition, the person needs to be
26 detained to enable the person to be taken to the hospital.
27 (2) A medical practitioner or authorised mental health practitioner
28 may, immediately before the end of the period of detention
29 authorised under subsection (1) or any further period of
30 detention authorised under this subsection in respect of the
31 person, make an order authorising the continuation of the
32 person's detention for up to 24 hours from the end of that period
33 to enable the person to be taken to the hospital.
34 (3) A person cannot be detained under orders made under this
35 section for a continuous period of more than 72 hours.
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1 (4) A medical practitioner or authorised mental health practitioner
2 cannot make an order under subsection (2) in respect of the
3 person unless --
4 (a) immediately before making the order, the practitioner
5 assesses the person; and
6 (b) as a consequence, the practitioner is satisfied that,
7 because of the person's mental or physical condition, the
8 person still needs to be detained to enable the person to
9 be taken to the hospital.
10 (5) Division 2 Subdivision 4 applies in relation to the conduct of an
11 assessment required by subsection (4)(a).
12 (6) An order made under this section must be in the approved form
13 and must include the following --
14 (a) the date and time when it is made;
15 (b) the date and time when it expires;
16 (c) the reasons for the continuation;
17 (d) the name, qualifications and signature of the practitioner
18 making it.
19 (7) A practitioner who makes an order under this section in respect
20 of a person must, as soon as practicable, file it and give a copy
21 to the person.
22 (8) A practitioner who makes an order under this section in respect
23 of a person must ensure that the person has the opportunity and
24 the means to contact any carer, close family member or other
25 personal support person of the person, the person's psychiatrist
26 and the Chief Mental Health Advocate --
27 (a) as soon as practicable after it is made; and
28 (b) at all reasonable times while the person is detained
29 under it.
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1 (9) The person cannot continue to be detained if, by the end of a
2 period of detention authorised under this section in respect of
3 the person --
4 (a) the person has not been taken to the hospital; and
5 (b) the person has not been apprehended under a transport
6 order made under section 63(1); and
7 (c) an order under subsection (2) authorising the
8 continuation of the person's detention from the end of
9 that period has not been made or, because of
10 subsection (3), cannot be made.
11 63. Making transport order
12 (1) A psychiatrist may make a transport order in respect of a person
13 who is under an order made under section 61(1)(a) or (c).
14 (2) The psychiatrist cannot make the transport order unless satisfied
15 that --
16 (a) because of the person's mental or physical condition, the
17 person needs to be taken to the hospital specified in the
18 order made under section 61(1)(a) or (c); and
19 (b) no other safe means of taking the person is reasonably
20 available.
21 (3) Part 10 applies in relation to the transport order.
22 Subdivision 3 -- Inpatient treatment order authorising detention at
23 general hospital
24 64. Application of this Subdivision
25 This Subdivision applies in relation to an involuntary inpatient
26 under an inpatient treatment order made under section 61(1)(a)
27 or 131(2)(a) authorising the involuntary inpatient's detention at
28 a general hospital.
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1 65. Treating psychiatrist must report regularly to Chief
2 Psychiatrist
3 (1) At the end of each successive 7-day period that the involuntary
4 inpatient is detained at the general hospital, the treating
5 psychiatrist must report to the Chief Psychiatrist about these
6 matters --
7 (a) the involuntary inpatient's mental and physical
8 condition;
9 (b) any treatment (as defined in section 4) being provided to
10 the involuntary inpatient at the general hospital;
11 (c) any other medical or surgical treatment being provided
12 to the involuntary inpatient at the general hospital.
13 (2) The report must be in the approved form.
14 66. Transfer from general hospital to authorised hospital
15 (1) Once the treating psychiatrist is satisfied that attempting to take
16 the involuntary inpatient to, or to detain the involuntary
17 inpatient at, an authorised hospital no longer poses a significant
18 risk to the inpatient's physical health, then as soon as
19 practicable, the treating psychiatrist must make an order (a
20 transfer order) authorising the inpatient's transfer to the
21 authorised hospital specified in the order.
22 (2) In deciding whether or not there is still a significant risk to the
23 involuntary inpatient's physical health, the treating psychiatrist
24 may consult with any other medical practitioner or health care
25 provider who is responsible for any medical or surgical
26 treatment being provided to the inpatient.
27 (3) The transfer order must be in the approved form and must
28 include the following --
29 (a) the involuntary inpatient's name;
30 (b) the general hospital from which the involuntary
31 inpatient is to be transferred;
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1 (c) the authorised hospital to which the involuntary
2 inpatient is to be transferred;
3 (d) the date and time when the order is made;
4 (e) the reasons for the transfer;
5 (f) the name, qualifications and signature of the treating
6 psychiatrist.
7 (4) The treating psychiatrist must, as soon as practicable, file the
8 transfer order and give a copy to the involuntary patient.
9 (5) The making of a transfer order under subsection (1) is an event
10 to which Part 9 applies and the treating psychiatrist is the person
11 responsible under that Part for notification of that event.
12 67. Making transport order
13 (1) A psychiatrist may make a transport order in respect of an
14 inpatient who is under a transfer order made under
15 section 66(1).
16 (2) The psychiatrist cannot make the transport order unless satisfied
17 that no other safe means of taking the involuntary inpatient to
18 the authorised hospital is reasonably available.
19 (3) Part 10 applies in relation to the transport order.
20 68. Confirmation of inpatient treatment order
21 (1) This section applies if --
22 (a) the psychiatrist who conducted the examination for the
23 purpose of making the inpatient treatment order and the
24 involuntary inpatient were not in one another's physical
25 presence when that examination was conducted; and
26 (b) since that examination was conducted, there has been no
27 further examination of the involuntary inpatient
28 conducted by a psychiatrist during which the
29 psychiatrist and the inpatient were in one another's
30 physical presence.
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1 (2) Within 24 hours after the involuntary inpatient is admitted by
2 the authorised hospital in accordance with the transfer order, the
3 inpatient treatment order must be confirmed by a psychiatrist at
4 the authorised hospital.
5 (3) The psychiatrist cannot confirm the inpatient treatment order
6 without examining the involuntary inpatient.
7 (4) Subdivision 6 applies in relation to the conduct of the
8 examination.
9 (5) The confirmation must be in the approved form and must
10 include the following --
11 (a) the date and time when it is made;
12 (b) the reasons for the confirmation;
13 (c) the name, qualifications and signature of the
14 psychiatrist.
15 (6) The inpatient treatment order ceases to be in force if it is not
16 confirmed in accordance with subsection (2).
17 (7) The release of a person because of subsection (6) is an event to
18 which Part 9 applies and the person in charge of the authorised
19 hospital is the person responsible under that Part for notification
20 of that event.
21 Subdivision 4 -- Order for further examination at
22 authorised hospital
23 69. Application of this Subdivision
24 This Subdivision applies in relation to a person who is under an
25 order made under section 61(1)(c) that the person be received
26 into an authorised hospital, and detained there, to enable an
27 examination to be conducted by a psychiatrist.
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1 70. Detention at authorised hospital
2 (1) The person --
3 (a) must be received into the authorised hospital unless
4 subsection (2) applies; and
5 (b) can be detained there, to enable the examination to be
6 conducted, for up to 24 hours from the time when the
7 person is received.
8 (2) The person cannot be received into the authorised hospital more
9 than 72 hours after the time when the order under
10 section 61(1)(c) is made.
11 (3) The person in charge of the authorised hospital must ensure that
12 the person has the opportunity and the means to contact any
13 carer, close family member or other personal support person of
14 the person, the person's psychiatrist and the Chief Mental
15 Health Advocate --
16 (a) as soon as practicable after the person is received into
17 the authorised hospital; and
18 (b) at all reasonable times while the person is detained there
19 under subsection (1)(b).
20 (4) The person cannot continue to be detained if, by the end of the
21 24-hour period referred to in subsection (1)(b) --
22 (a) the examination has not been completed; or
23 (b) the examination has been completed but an order has not
24 been made under section 72(1) in respect of the person.
25 (5) Reception at an authorised hospital under this section is not
26 admission by the hospital under this Act.
27 71. Conducting examination at authorised hospital
28 Subdivision 6 applies in relation to the conduct of the
29 examination.
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1 72. What psychiatrist must do on completing examination
2 (1) On completing the examination, the psychiatrist must make one
3 of these orders --
4 (a) an inpatient treatment order authorising the person's
5 detention at the authorised hospital for the period
6 specified in the order in accordance with section 87(a)
7 or (b);
8 (b) a community treatment order in respect of the person;
9 (c) an order that the person cannot continue to be detained.
10 (2) The order must be in the approved form and must include the
11 following --
12 (a) the date and time when it is made;
13 (b) if it is made under subsection (1)(a) or (b) -- the reasons
14 for making it;
15 (c) the name, qualifications and signature of the
16 psychiatrist.
17 (3) The psychiatrist must, as soon as practicable, file the order and
18 give a copy to the person.
19 Notes for section 72:
20 1. A community treatment order is automatically revoked under
21 section 116(b) if a psychiatrist makes an inpatient treatment order
22 under section 72(1)(a) in respect of the involuntary community patient.
23 2. A community treatment order is no longer suspended if a psychiatrist
24 makes an order under section 72(1)(c) that the involuntary community
25 patient cannot continue to be detained.
26 Subdivision 5 -- Examination without referral
27 73. Application of this Subdivision
28 This Subdivision applies if a person is examined by a
29 psychiatrist in circumstances other than --
30 (a) because of a referral made under section 26(2) or (3)(a)
31 or 36(2); or
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Division 3 Examinations
s. 74
1 (b) because of an order made under section 55(1)(c)
2 or 61(1)(c); or
3 (c) under section 89(1) or 131(3) or (5)(a).
4 74. Conducting examination
5 Subdivision 6 applies in relation to the conduct of the
6 examination.
7 75. What psychiatrist may do on completing examination
8 (1) On completing the examination, the psychiatrist may make a
9 community treatment order in respect of the person.
10 (2) The order must be in the approved form and must include the
11 following --
12 (a) the date and time when it is made;
13 (b) the reasons for making it;
14 (c) the name, qualifications and signature of the
15 psychiatrist.
16 (3) The psychiatrist must, as soon as practicable, file the order and
17 give a copy to the person.
18 76. Confirmation of community treatment order
19 (1) Within 72 hours after the time when the community treatment
20 order is made, it must be confirmed by --
21 (a) another psychiatrist; or
22 (b) if another psychiatrist is not reasonably available --
23 (i) another medical practitioner; or
24 (ii) an authorised mental health practitioner.
25 (2) The confirmation must be in the approved form and must
26 include the following --
27 (a) the date and time when it is made;
28 (b) the reasons for the confirmation;
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Examinations Division 3
s. 77
1 (c) the name, qualifications and signature of the practitioner
2 confirming the community treatment order.
3 (3) The supervising psychiatrist --
4 (a) must inform the person about whether or not the order
5 has been confirmed; and
6 (b) if it has been confirmed -- file the confirmation and
7 give a copy to the person.
8 (4) The order ceases to be in force if it is not confirmed in
9 accordance with subsection (1).
10 Subdivision 6 -- Conduct of examination
11 77. Application of this Subdivision
12 This Subdivision applies in relation to an examination
13 conducted in any of these circumstances --
14 (a) by a psychiatrist because of a referral made under
15 section 26(2) or (3)(a) or 36(2);
16 (b) by a psychiatrist because of an order made under
17 section 55(1)(c) or 61(1)(c) for the detention of a person
18 at an authorised hospital to enable the person to be
19 examined;
20 (c) by a psychiatrist for the purpose of confirming an
21 inpatient treatment order, as required by section 68(3)
22 or 124(3);
23 (d) by a psychiatrist in circumstances in which
24 Subdivision 5 applies;
25 (e) by a supervising psychiatrist before the review period
26 for a community treatment order ends, as required by
27 section 118(2)(a);
28 (f) by a medical practitioner or authorised mental health
29 practitioner before the review period for a community
30 treatment order ends, as required by section 118(2)(b);
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1 (g) by a supervising psychiatrist for the purpose of making
2 an inpatient treatment order, as required by
3 section 120(3), 123(2) or 131(3);
4 (h) by a supervising psychiatrist for the purpose of making
5 an order revoking a community treatment order, as
6 permitted by section 120(4)(a), 123(3)(a) or 131(5)(a);
7 (i) by a supervising psychiatrist for the purpose of making a
8 continuation order, as required by section 121(2);
9 (j) by a psychiatrist for the purpose of giving a further
10 opinion, as required by section 182(6) as applied by
11 section 121(6) or as required by section 182(6).
12 78. Referring psychiatrist cannot conduct examination
13 An examination referred to section 77(a) cannot be conducted
14 by the psychiatrist who made the referral under section 26(2)
15 or (3)(a) or 36(2).
16 79. How examination must be conducted
17 (1) In this section --
18 prescribed health professional means --
19 (a) a medical practitioner; or
20 (b) a nurse; or
21 (c) an occupational therapist; or
22 (d) a psychologist; or
23 (e) a social worker; or
24 (f) if the person being assessed is of Aboriginal or Torres
25 Strait Islander descent --
26 (i) a health professional listed in paragraphs (a)
27 to (e); or
28 (ii) an Aboriginal or Torres Strait Islander mental
29 health worker.
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1 (2) An examination must be conducted in the least restrictive way,
2 and the least restrictive environment, practicable.
3 (3) For an examination referred to in section 77(a), (b), (d), (f)
4 or (g), unless subsection (4) applies, the psychiatrist or
5 practitioner and the person being examined must be in one
6 another's physical presence.
7 (4) The psychiatrist or practitioner may conduct the examination
8 using audiovisual communication if --
9 (a) the person being examined is at a place that is not an
10 authorised hospital and is outside a metropolitan area;
11 and
12 (b) it is not practicable for the psychiatrist or practitioner to
13 comply with subsection (3); and
14 (c) a prescribed health professional and the person being
15 examined are in one another's physical presence.
16 (5) For an examination referred to in section 77(c) or in
17 section 77(e) if it is also an examination required by
18 section 120(3), the psychiatrist and the person being examined
19 must be in one another's physical presence and the examination
20 cannot be conducted using audiovisual communication.
21 (6) For an examination referred to in section 77(e) unless it is also
22 an examination required by section 120(3) or in section 77(h),
23 (i) or (j) --
24 (a) the psychiatrist and the person being examined need not
25 be in one another's physical presence; but
26 (b) if they are not -- each of them must be able to see and
27 hear the other while the other is speaking (for example,
28 by being able to see one another through a window and
29 hear one another using a telephone or to see and hear
30 one another using audiovisual communication).
31 (7) For the purposes of this Act, an examination conducted using
32 audiovisual communication is taken to be conducted, and any
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Division 3 Examinations
s. 80
1 order made as a result is taken to be made, at the place where
2 the person examined is when the examination is conducted.
3 80. Information to which examiner may have regard
4 (1) The psychiatrist or practitioner may have regard to any
5 information about the person being examined that is obtained by
6 the psychiatrist or practitioner from one or more of the
7 following --
8 (a) the person, including information obtained by observing
9 the person and asking the person questions;
10 (b) if the person is of Aboriginal or Torres Strait Islander
11 descent --
12 (i) an Aboriginal or Torres Strait Islander mental
13 health worker; or
14 (ii) a significant member of the person's community,
15 including an elder or traditional healer;
16 (c) any other person;
17 (d) the person's medical record.
18 (2) The psychiatrist or practitioner cannot conclude that the person
19 being examined is in need of, is still in need of, or is no longer
20 in need of, an involuntary treatment order solely on the basis of
21 information referred to in one or more of subsection (1)(b)(i)
22 or (ii), (c) or (d).
23 81. Examination of person of Aboriginal or Torres Strait
24 Islander descent
25 To the extent that it is practicable and appropriate to do so, the
26 examination of a person who is of Aboriginal or Torres Strait
27 Islander descent must be conducted in collaboration with --
28 (a) Aboriginal or Torres Strait Islander mental health
29 workers; and
30 (b) significant members of the person's community,
31 including elders and traditional healers.
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Detention for examination or treatment Part 7
Preliminary matters Division 1
s. 82
1 Part 7 -- Detention for examination or treatment
2 Division 1 -- Preliminary matters
3 82. Application of this Part
4 This Part does not apply in relation to a mentally impaired
5 accused who is being detained at an authorised hospital under
6 the MIA Act, whether or not the mentally impaired accused was
7 being detained at the authorised hospital under this Act
8 immediately before the mentally impaired accused was detained
9 at the authorised hospital under the MIA Act.
10 Division 2 -- Detention at authorised hospital or other place
11 for examination
12 83. Detention authorised
13 (1) This section applies in relation to any of these people --
14 (a) a person who can be detained at an authorised hospital
15 under section 34(3) because of an order for an
16 assessment made under section 34(1);
17 (b) a person who can be detained at an authorised hospital
18 under section 52(1)(b) because of a referral made under
19 section 26(2);
20 (c) a person who can be detained at an authorised hospital
21 under section 53(1) because of a referral made under
22 section 36(2);
23 (d) a person who is under an order made under
24 section 55(1)(c) authorising the continuation of the
25 person's detention at an authorised hospital to enable a
26 further examination to be conducted;
27 (e) a person who can be detained at a place that is not an
28 authorised hospital under section 58(1)(b) because of a
29 referral made under section 26(3)(a);
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Division 3 Detention at hospital under inpatient treatment order
s. 84
1 (f) a person who is under an order made under section 59(2)
2 authorising the continuation of the person's detention at
3 a place that is not an authorised hospital to enable an
4 examination to be completed;
5 (g) a person who is under an order made under
6 section 61(1)(c) authorising the person's detention at an
7 authorised hospital to enable an examination to be
8 conducted.
9 (2) The referral or order authorises --
10 (a) the person's reception at the authorised hospital or other
11 place specified in the referral or order; and
12 (b) the person's detention there for the period authorised by
13 this Act for which the person can be detained because of
14 the referral or under the order; and
15 (c) a person who is prescribed by the regulations for this
16 paragraph to exercise the powers under section 172 for
17 the purpose of detaining the person there.
18 Notes for section 83:
19 1. The period for which a person can be detained under section 34(3) is
20 authorised under that provision.
21 2. The period for which a person can be detained under section 52(1)(b),
22 53(1) or 58(1)(b), or under an order made under section 55(1)(c), 59(2)
23 or 61(1)(c), is authorised under Part 6 Division 3.
24 Division 3 -- Detention at hospital under inpatient
25 treatment order
26 84. Application of this Division
27 This Division applies in relation to an involuntary inpatient who
28 is under an inpatient treatment order authorising the involuntary
29 inpatient's detention at an authorised hospital or a general
30 hospital.
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Detention at hospital under inpatient treatment order Division 3
s. 85
1 Notes for section 84:
2 1. An inpatient treatment order authorising a person's detention at an
3 authorised hospital can be made under section 55(1)(a), 56(1)(a)(i),
4 72(1)(a), 120(2)(a), 123(1)(a) or 131(2)(a).
5 2. An inpatient treatment order authorising a person's detention at a
6 general hospital can be made under section 61(1)(a) or 131(2)(a).
7 85. Terms used
8 In this Division --
9 continuation order means a continuation order made under
10 section 89(2)(a);
11 detention period, for an inpatient treatment order, means --
12 (a) the period for which the involuntary inpatient can be
13 detained under the order as specified in the order in
14 accordance with section 87(a) or (b); or
15 (b) the further period for which the involuntary inpatient
16 can be detained under the order as specified in a
17 continuation order.
18 86. Detention authorised
19 An inpatient treatment order authorises --
20 (a) the involuntary inpatient's admission as an inpatient
21 by --
22 (i) the hospital specified in the order; and
23 (ii) any authorised hospital to which the patient is
24 transferred under section 66(1) or 91(2);
25 and
26 (b) the involuntary inpatient's detention there for the period
27 authorised by this Act for which the inpatient can be
28 detained under this Act; and
29 (c) a person who is prescribed by the regulations for this
30 paragraph to exercise the powers under section 172 for
31 the purpose of detaining the involuntary inpatient there.
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Part 7 Detention for examination or treatment
Division 3 Detention at hospital under inpatient treatment order
s. 87
1 87. Period that must be specified in inpatient treatment order
2 The period specified in an inpatient treatment order as the
3 period for which the involuntary inpatient can be detained under
4 the order cannot exceed --
5 (a) if, when the order is made, the involuntary inpatient is
6 an adult -- 21 days from the day on which the order is
7 made; or
8 (b) if, when the order is made, the involuntary inpatient is a
9 child -- 14 days from the day on which the order is
10 made.
11 88. Period for which detention is authorised
12 An inpatient treatment order authorises the involuntary
13 inpatient's detention until the first of these things occurs --
14 (a) a psychiatrist makes an order under section 89(2)(b)
15 or 90(1)(a) in respect of the involuntary inpatient;
16 (b) a psychiatrist revokes the order under section 89(2)(c)
17 or 90(1)(b);
18 (c) the expiry of the detention period unless the detention of
19 the involuntary inpatient under the inpatient treatment
20 order has been continued under a continuation order.
21 89. Examination before end of each detention period
22 (1) The treating psychiatrist must ensure that, on or within 7 days
23 before the day on which the detention period for an inpatient
24 treatment order ends, the involuntary inpatient is examined by a
25 psychiatrist.
26 (2) On completing the examination, the psychiatrist who conducted
27 it must make one of these orders --
28 (a) if satisfied, having regard to the criteria specified in
29 section 25, that the involuntary inpatient is still in need
30 of the inpatient treatment order -- a continuation order
31 continuing the inpatient treatment order from the end of
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Detention at hospital under inpatient treatment order Division 3
s. 89
1 the detention period for the further detention period that
2 is specified in the continuation order in accordance with
3 subsection (3)(a) or (b);
4 (b) if satisfied, having regard to the criteria specified in
5 section 25, that the involuntary inpatient is no longer in
6 need of the inpatient treatment order but is in need of a
7 community treatment order -- a community treatment
8 order in respect of the inpatient;
9 (c) if satisfied, having regard to the criteria in section 25,
10 that the involuntary inpatient is no longer in need of an
11 involuntary treatment order -- an order revoking the
12 inpatient treatment order.
13 (3) For subsection (2)(a), the detention period specified in a
14 continuation order cannot exceed --
15 (a) if, when the continuation order is made, the involuntary
16 inpatient is an adult -- 3 months; or
17 (b) if, when the continuation order is made, the involuntary
18 inpatient is a child -- 28 days.
19 (4) An order made under subsection (2) must be in the approved
20 form and must include the following --
21 (a) the date and time when it is made;
22 (b) if it is made under subsection (2)(a) or (b) -- the reasons
23 for making it;
24 (c) the name, qualifications and signature of the psychiatrist
25 making it.
26 (5) A psychiatrist who makes an order under subsection (2) must, as
27 soon as practicable, file it and give a copy to the involuntary
28 inpatient.
29 (6) The release of a person because of an order made under
30 subsection (2)(b) or (c) is an event to which Part 9 applies and
31 the person in charge of the hospital is the person responsible
32 under that Part for notification of that event.
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Division 3 Detention at hospital under inpatient treatment order
s. 90
1 90. Changing involuntary inpatient's status
2 (1) A psychiatrist may make either of these orders during the
3 detention period --
4 (a) if satisfied, having regard to the criteria specified in
5 section 25, that the involuntary inpatient is no longer in
6 need of the inpatient treatment order but is in need of a
7 community treatment order -- a community treatment
8 order in respect of the inpatient;
9 (b) if satisfied, having regard to the criteria specified in
10 section 25, that the involuntary inpatient is no longer in
11 need of an involuntary treatment order -- an order
12 revoking the inpatient treatment order.
13 (2) The psychiatrist may make the order without examining the
14 involuntary inpatient.
15 (3) The order must be in the approved form and must include the
16 following --
17 (a) the date and time when it is made;
18 (b) if it is made under subsection (1)(a) -- the reasons for
19 making it;
20 (c) the name, qualifications and signature of the
21 psychiatrist.
22 (4) The psychiatrist must, as soon as practicable, file the order and
23 give a copy to the involuntary inpatient.
24 (5) The making of an order under subsection (1) is an event to
25 which Part 9 applies and the psychiatrist who makes the order is
26 the person responsible under that Part for notification of that
27 event.
28 91. Transfer between authorised hospitals
29 (1) This section applies in relation to an involuntary inpatient who
30 is detained at an authorised hospital.
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s. 92
1 (2) The treating psychiatrist or, if the treating psychiatrist is not
2 reasonably available, another psychiatrist at the authorised
3 hospital may make an order (a transfer order) authorising the
4 involuntary inpatient's transfer from the authorised hospital to
5 another authorised hospital specified in the order.
6 (3) The transfer order must be in the approved form and must
7 include the following --
8 (a) the involuntary inpatient's name;
9 (b) the authorised hospital from which the involuntary
10 inpatient is to be transferred;
11 (c) the authorised hospital to which the involuntary
12 inpatient is to be transferred;
13 (d) the date and time when the order is made;
14 (e) the reasons for the transfer;
15 (f) the name, qualifications and signature of the psychiatrist
16 making it.
17 (4) A psychiatrist who makes a transfer order must, as soon as
18 practicable, file it and give a copy to the involuntary inpatient.
19 (5) The making of a transfer order under subsection (2) is an event
20 to which Part 9 applies and the psychiatrist who makes the order
21 is the person responsible under that Part for notification of that
22 event.
23 Note for section 91:
24 Section 66 applies in relation to the transfer of an involuntary inpatient from a
25 general hospital to an authorised hospital.
26 92. Making transport order
27 (1) A psychiatrist may make a transport order in respect of an
28 inpatient who is under a transfer order made under
29 section 91(2).
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Part 7 Detention for examination or treatment
Division 4 Release from hospital or other place
s. 93
1 (2) The psychiatrist cannot make the transport order unless satisfied
2 that no other safe means of taking the involuntary inpatient to
3 the authorised hospital is reasonably available.
4 (3) Part 10 applies in relation to the transport order.
5 93. Involuntary inpatient to be advised of expiry
6 (1) This section applies if an inpatient treatment order expires.
7 (2) The treating psychiatrist must advise the involuntary inpatient in
8 writing of the expiry and its consequences.
9 (3) The treating psychiatrist must file a copy of the advice.
10 (4) The expiry of an inpatient treatment order is an event to which
11 Part 9 applies and the person in charge of the hospital at which
12 the involuntary inpatient was being detained is the person
13 responsible under that Part for notification of that event.
14 Division 4 -- Release from hospital or other place
15 94. Application of this Division
16 This Division applies in relation to a person referred to in
17 paragraph (a), (b) or (c) who is detained for a reason referred to
18 in that provision --
19 (a) a person who is detained under Part 6 Division 2 or 3 to
20 enable the person --
21 (i) to be taken to an authorised hospital or other
22 place; or
23 (ii) to be assessed or examined;
24 or
25 (b) a person who is detained under an inpatient treatment
26 order; or
27 (c) an involuntary community patient who is detained under
28 section 130(2)(b).
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Detention for examination or treatment Part 7
Release from hospital or other place Division 4
s. 95
1 95. Person must be allowed to leave
2 (1) This section applies whenever a person cannot continue to be
3 detained at a hospital or other place for a reason referred to in
4 section 94.
5 (2) A person in charge of the hospital or other place must ensure
6 that, as soon as practicable --
7 (a) the person is advised in writing by a medical practitioner
8 or mental health practitioner that the person cannot
9 continue to be detained for that reason; or
10 (b) if the person leaves the hospital or other place before a
11 medical practitioner or mental health practitioner can
12 comply with paragraph (a) -- a record of the time when
13 the person left the hospital or other place is filed.
14 (3) The person must be allowed to leave the hospital or other place
15 unless the person's detention at the hospital or other place is
16 authorised --
17 (a) for another reason referred to in section 94; or
18 (b) under section 96.
19 (4) The practitioner who provides the advice referred to in
20 subsection (2)(a) must file a copy of the advice.
21 96. Delivery into custody under another law
22 A person who cannot continue to be detained for a reason
23 referred to in section 94 but is under an order made under the
24 law of the Commonwealth or a State or Territory requiring the
25 person to be kept in custody is not allowed to leave the hospital
26 or other place until the person has been delivered into that
27 custody.
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Division 5 Absence without leave from hospital or other place
s. 97
1 Division 5 -- Absence without leave from hospital or
2 other place
3 97. Persons who are absent without leave
4 (1) For the purposes of this Division, a person is absent without
5 leave from a hospital or other place if --
6 (a) in the case of a person who is detained under Part 6
7 Division 2 or 3 to enable the person --
8 (i) to be taken to an authorised hospital or other
9 place; or
10 (ii) to be assessed or examined,
11 the person leaves the hospital or other place where the
12 person is detained; or
13 (b) in the case of a person who is under an inpatient
14 treatment order -- the person is absent without leave as
15 described in subsection (2); or
16 (c) in the case of an involuntary community patient who is
17 detained under section 130(2)(b) -- the person leaves
18 the place where the patient is detained.
19 (2) For subsection (1)(b), a person who is under an inpatient
20 treatment order is absent without leave --
21 (a) if the person is away from the hospital where the person
22 is detained under the order without being granted leave
23 of absence under section 105(1); or
24 (b) if, on the cancellation under section 110(1) of leave of
25 absence granted to the person under section 105(1) or on
26 the expiry of such leave, the person does not return to
27 either of these hospitals --
28 (i) the hospital from which the person was granted
29 the leave of absence;
30 (ii) the hospital to which the person's transfer has
31 been ordered under section 66(1) or 91(2).
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Absence without leave from hospital or other place Division 5
s. 98
1 (3) The absence of a person without leave from a hospital or other
2 place is an event to which Part 9 applies and the person in
3 charge of the hospital or other place is the person responsible
4 under that Part for notification of that event.
5 98. Making apprehension and return order
6 (1) The person in charge of a hospital or other place or a medical
7 practitioner may make an order (an apprehension and return
8 order) in respect of a person who is absent without leave from
9 the hospital or other place if satisfied that no other safe means
10 of ensuring that the person returns to the hospital or other place
11 is reasonably available.
12 (2) An apprehension and return order must be in the approved form
13 and must include the following --
14 (a) the name of the person who is absent without leave;
15 (b) the hospital or other place from which the person is
16 absent without leave;
17 (c) the hospital or other place to which the person must be
18 taken if apprehended;
19 (d) the date when it is made;
20 (e) the date when it will expire;
21 (f) the reasons for making it;
22 (g) the name, qualifications and signature of the person
23 making it.
24 (3) A person who makes an apprehension and return order must, as
25 soon as practicable, file it and give a copy to the police officer
26 or person prescribed who will carry out the order.
27 99. Operation of apprehension and return order
28 An apprehension and return order made in respect of a person
29 authorises a police officer or a person prescribed by the
30 regulations for this section to do these things --
31 (a) apprehend the person and, for that purpose, exercise the
32 powers under sections 159(2) and 172;
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Division 5 Absence without leave from hospital or other place
s. 100
1 (b) if the person is apprehended -- take the person to the
2 hospital or other place specified in the apprehension and
3 return order under section 98(2)(c) as soon as
4 practicable and, in any event, before the order expires;
5 (c) for the purpose of taking the person to that hospital or
6 other place, detain the person until the first of these
7 things occurs --
8 (i) the person is received into the hospital or other
9 place;
10 (ii) the apprehension and return order expires.
11 100. Period of apprehension and return order
12 (1) An apprehension and return order remains in force for 14 days
13 from the day on which the order is made.
14 (2) An apprehension and return order cannot be extended.
15 101. Revocation of apprehension and return order
16 (1) The person in charge of a hospital or other place from which a
17 person is absent without leave or a medical practitioner may
18 make an order (a revocation order) revoking an apprehension
19 and return order made in respect of the person if satisfied that
20 the apprehension and return order is no longer needed.
21 (2) The revocation order must be in the approved form and must
22 include the following --
23 (a) the date and time when it is made;
24 (b) the reasons for the revocation;
25 (c) the name, qualifications and signature of the person
26 making it.
27 (3) A person who makes a revocation order must, as soon as
28 practicable --
29 (a) advise the police officer or person prescribed
30 responsible for carrying out the apprehension and return
31 order of the revocation; and
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Leave of absence from detention at hospital under inpatient Division 6
treatment order
s. 102
1 (b) file the order and a record of the advice.
2 102. Return of person to place where apprehended
3 (1) Subsection (2) applies if, after a person is apprehended under an
4 apprehension and return order but before the person is received
5 into the hospital or other place specified in the order under
6 section 98(2)(c), the order is revoked under section 101(1) or
7 expires.
8 (2) The police officer or person prescribed who was responsible for
9 carrying out the apprehension and return order must take
10 reasonable steps to ensure the person is taken, at the person's
11 election --
12 (a) back to the place where the person was apprehended; or
13 (b) to a place reasonably nominated by the person.
14 (3) Subsection (2) does not require the person to be taken to a place
15 if to do so poses a serious risk to the safety of the person or
16 another person.
17 Division 6 -- Leave of absence from detention at hospital under
18 inpatient treatment order
19 Subdivision 1 -- Preliminary matters
20 103. Application of this Division
21 This Division applies in relation to an involuntary inpatient who
22 is under an inpatient treatment order authorising the involuntary
23 inpatient's detention at an authorised hospital or a general
24 hospital.
25 Notes for section 103:
26 1. An inpatient treatment order authorising a person's detention at an
27 authorised hospital can be made under section 55(1)(a), 56(1)(a)(i),
28 72(1)(a), 120(2)(a), 123(1)(a) or 131(2)(a).
29 2. An inpatient treatment order authorising a person's detention at a
30 general hospital can be made under section 61(1)(a) or 131(2)(a).
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Part 7 Detention for examination or treatment
Division 6 Leave of absence from detention at hospital under inpatient
treatment order
s. 104
1 104. Term used: leave of absence
2 In this Division --
3 leave of absence --
4 (a) means leave of absence granted under section 105(1);
5 and
6 (b) includes leave of absence as extended or varied under
7 section 106(1).
8 Subdivision 2 -- Grant, extension, variation or cancellation of leave
9 105. Granting leave
10 (1) A psychiatrist may make an order granting an involuntary
11 inpatient leave of absence from a hospital if satisfied that
12 granting the leave of absence --
13 (a) will --
14 (i) be likely to benefit the involuntary inpatient's
15 recovery from mental illness or to benefit the
16 inpatient's mental health in some other way; or
17 (ii) enable the involuntary inpatient to obtain
18 medical or surgical treatment or be likely to
19 benefit the inpatient's physical health in some
20 other way;
21 and
22 (b) is not inconsistent with the involuntary inpatient's need
23 to be provided with treatment for a reason specified in
24 section 25(1)(b).
25 (2) The psychiatrist cannot make the order unless the psychiatrist
26 has consulted each of these people about the matters specified in
27 subsection (3) --
28 (a) if the involuntary inpatient has an enduring guardian or
29 guardian -- the enduring guardian or guardian;
30 (b) if the involuntary inpatient is a child -- the child's
31 parent or guardian;
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Leave of absence from detention at hospital under inpatient Division 6
treatment order
s. 105
1 (c) if the involuntary inpatient has a nominated person --
2 the nominated person unless the nominated person is not
3 entitled, for the reason referred to in section 269(1), to
4 be consulted;
5 (d) if the involuntary inpatient has a carer -- the carer
6 unless the carer is not entitled, for the reason referred to
7 in section 288(2) or 292(1), to be consulted;
8 (e) if the involuntary inpatient has a close family
9 member -- the close family member unless the close
10 family member is not entitled, for the reason referred to
11 in section 288(2) or 292(1), to be consulted.
12 (3) For subsection (2), these matters are specified --
13 (a) whether or not to make the order; and
14 (b) what period and conditions would be appropriate to
15 specify in the order if it were to be made.
16 (4) Without limiting a requirement under subsection (2)(a) to
17 consult the involuntary inpatient's enduring guardian or
18 guardian, or under subsection (2)(b) to consult the involuntary
19 inpatient's parent or guardian, about the matters referred to in
20 subsection (3)(a) and (b), the requirement is taken to be
21 complied with if the psychiatrist ensures that reasonable efforts
22 continue to be made to consult the person about those matters
23 until the first of these things occurs --
24 (a) the person is consulted about those matters;
25 (b) it is reasonable for the psychiatrist to conclude that the
26 person cannot be consulted about those matters.
27 (5) Part 16 Division 3 Subdivision 2 applies in relation to a
28 requirement under subsection (2)(c) to consult the involuntary
29 inpatient's nominated person about the matters referred to in
30 subsection (3)(a) and (b).
31 (6) Part 17 Division 2 applies in relation to a requirement under
32 subsection (2)(d) to consult a carer of the involuntary inpatient,
33 or under subsection (2)(e) to consult a close family member of
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Part 7 Detention for examination or treatment
Division 6 Leave of absence from detention at hospital under inpatient
treatment order
s. 105
1 the involuntary inpatient, about the matters referred to in
2 subsection (3)(a) and (b).
3 (7) The psychiatrist must ensure that the following are filed --
4 (a) if a person referred to in subsection (2)(a) to (e) was
5 consulted -- a record of the consultation; or
6 (b) if a person referred to in subsection (2)(a) to (e) could
7 not be consulted -- a record of the efforts made to do
8 so.
9 (8) The psychiatrist cannot make the order unless the psychiatrist
10 has considered whether it would be more appropriate to make
11 an order under section 90(1) in respect of the involuntary
12 inpatient.
13 (9) The order authorises the involuntary inpatient's absence from
14 the hospital for the period, and subject to the conditions, the
15 psychiatrist considers appropriate and specifies in the order.
16 (10) The conditions imposed under subsection (9) may include
17 conditions about the involuntary inpatient doing any of these
18 things --
19 (a) residing at a specified place;
20 (b) receiving specified treatment;
21 (c) attending at a specified place, and remaining there as
22 specified in the order, to enable the involuntary inpatient
23 to be provided with specified treatment.
24 (11) The order must be in the approved form and must include the
25 following --
26 (a) the date and time when it is made;
27 (b) the period and conditions of the leave of absence;
28 (c) the reasons for granting the leave of absence;
29 (d) the name, qualifications and signature of the
30 psychiatrist.
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Detention for examination or treatment Part 7
Leave of absence from detention at hospital under inpatient Division 6
treatment order
s. 106
1 (12) The psychiatrist must, as soon as practicable, file the order and
2 give a copy to the involuntary inpatient.
3 (13) The making of an order under subsection (1) is an event to
4 which Part 9 applies and the psychiatrist who makes the order is
5 the person responsible under that Part for notification of that
6 event.
7 106. Extending or varying leave granted
8 (1) A psychiatrist may make an order --
9 (a) extending an involuntary inpatient's leave of absence; or
10 (b) varying the conditions subject to which an involuntary
11 inpatient's leave of absence is granted.
12 (2) The order must be in the approved form and must include the
13 following --
14 (a) the date and time when it is made;
15 (b) the period of the extension or the variation of the
16 conditions;
17 (c) the reasons for the extension or variation;
18 (d) the name, qualifications and signature of the
19 psychiatrist.
20 (3) The psychiatrist must, as soon as practicable, file the order and
21 give a copy to the involuntary inpatient.
22 (4) The making of an order under subsection (1) is an event to
23 which Part 9 applies and the psychiatrist who makes the order is
24 the person responsible under that Part for notification of that
25 event.
26 107. Involuntary inpatient must comply with conditions of leave
27 An involuntary inpatient who is on leave of absence from a
28 hospital must comply with the conditions to which the leave of
29 absence is subject.
page 79
Mental Health Bill 2013
Part 7 Detention for examination or treatment
Division 6 Leave of absence from detention at hospital under inpatient
treatment order
s. 108
1 108. Monitoring involuntary inpatient on leave
2 (1) This section applies if an involuntary inpatient is away from a
3 hospital on leave of absence for more than 21 consecutive days.
4 (2) The treating psychiatrist must consider whether it would be
5 appropriate to make an order under section 90(1) in respect of
6 the inpatient.
7 (3) For the purpose of subsection (2), the treating psychiatrist may
8 make any inquiries the psychiatrist considers appropriate.
9 109. Changing involuntary inpatient's status while inpatient on
10 leave
11 (1) This section applies if, while an involuntary inpatient is away
12 from a hospital on leave of absence, the treating psychiatrist is
13 given a written opinion from another medical practitioner or a
14 mental health practitioner to the effect that the involuntary
15 inpatient is no longer in need of an inpatient treatment order.
16 (2) The treating psychiatrist must file the opinion as soon as
17 practicable, whether or not the treating psychiatrist acts under
18 subsection (3) on the basis of the opinion.
19 (3) The treating psychiatrist may make an order under section 90(1)
20 in respect of the involuntary inpatient on the basis of the opinion
21 and without examining the inpatient.
22 110. Cancelling leave
23 (1) This section applies if, while an involuntary inpatient is away
24 from a hospital on leave of absence, a psychiatrist forms the
25 reasonable belief that it is inappropriate for the inpatient to
26 continue to be away from the hospital.
27 (2) The psychiatrist may make an order cancelling the leave of
28 absence.
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Detention for examination or treatment Part 7
Leave of absence from detention at hospital under inpatient Division 6
treatment order
s. 111
1 (3) The order must be in the approved form and must include the
2 following --
3 (a) the date and time when it is made;
4 (b) the reasons for that belief;
5 (c) the name, qualifications and signature of the
6 psychiatrist.
7 (4) The psychiatrist must, as soon as practicable --
8 (a) orally advise the involuntary patient that the leave of
9 absence has been cancelled; and
10 (b) file the order and give a copy to the involuntary
11 inpatient.
12 (5) The making of an order under subsection (2) is an event to
13 which Part 9 applies and the psychiatrist who makes the order is
14 the person responsible under that Part for notification of that
15 event.
16 Subdivision 3 -- Transport to and from hospital
17 111. Application of this Subdivision
18 This Subdivision applies in relation to an involuntary
19 inpatient --
20 (a) who is granted leave of absence to enable the
21 involuntary inpatient to obtain medical or surgical
22 treatment at a general hospital; or
23 (b) who, because of the cancellation under section 110(1) of
24 leave of absence granted to the involuntary patient for a
25 purpose referred to in paragraph (a) or because of the
26 expiry of such leave, must return to --
27 (i) the hospital from which the leave was granted; or
28 (ii) an authorised hospital to which the involuntary
29 inpatient's transfer has been ordered under
30 section 66(1) or 91(2).
page 81
Mental Health Bill 2013
Part 7 Detention for examination or treatment
Division 6 Leave of absence from detention at hospital under inpatient
treatment order
s. 112
1 112. Making transport order
2 (1) A psychiatrist may make a transport order in respect of the
3 involuntary inpatient.
4 (2) The psychiatrist cannot make the transport order unless satisfied
5 that no other safe means of taking the involuntary inpatient to
6 the hospital is reasonably available.
7 (3) Part 10 applies in relation to the transport order.
page 82
Mental Health Bill 2013
Community treatment orders Part 8
Preliminary matters Division 1
s. 113
1 Part 8 -- Community treatment orders
2 Division 1 -- Preliminary matters
3 113. Terms used
4 In this Part --
5 community treatment order includes a community treatment
6 order as varied under section 121(1), 122(1), 135(1)(a) or (2)(a)
7 or 137(a);
8 continuation order means a continuation order made under
9 section 121(1);
10 involuntary community patient, in relation to a community
11 treatment order, means the involuntary community patient who
12 is under the order;
13 supervising psychiatrist, in relation to a community treatment
14 order, means the psychiatrist who is the supervising psychiatrist
15 under the order;
16 treating practitioner, in relation to a community treatment
17 order, means the medical practitioner or mental health
18 practitioner who is the treating practitioner under the order;
19 treatment period, for a community treatment order, means --
20 (a) the treatment period for which the order remains in force
21 as specified in the order under section 115(2); or
22 (b) the further treatment period for which the order remains
23 in force as specified in a continuation order.
24 Division 2 -- Making order
25 114. Things psychiatrist must be satisfied of before making order
26 A psychiatrist cannot make a community treatment order in
27 respect of a person unless satisfied of these things --
28 (a) treatment of the person in the community would not be
29 inconsistent with the person's need to be provided with
30 treatment for a reason specified in section 25(2)(b);
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Part 8 Community treatment orders
Division 2 Making order
s. 115
1 (b) suitable arrangements can be made for the treatment and
2 care of the person in the community, including --
3 (i) arrangements for a psychiatrist to be the
4 supervising psychiatrist under the order; and
5 (ii) arrangements for a medical practitioner or mental
6 health practitioner to be the treating practitioner
7 under the order.
8 Note for section 114:
9 The supervising psychiatrist can also be the treating practitioner (see
10 section 136(2)(b)).
11 115. Terms of order
12 (1) The terms of a community treatment order must include these
13 things --
14 (a) the name of the psychiatrist who is the supervising
15 psychiatrist under the order;
16 (b) a requirement that the involuntary community patient
17 comply with all of the supervising psychiatrist's
18 directions to the patient about treatment to be provided
19 to the patient under the order;
20 (c) the name of the medical practitioner or mental health
21 practitioner who is the treating practitioner under the
22 order;
23 (d) the date and time when the order is made;
24 (e) the date and time when the order comes into force,
25 which must be within 7 days after the date and time
26 when the order is made;
27 (f) the treatment period for which the order remains in force
28 as specified under subsection (2);
29 (g) a requirement that the involuntary community patient
30 notify the supervising psychiatrist or treating
31 practitioner of any change in the patient's residential
32 address;
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Community treatment orders Part 8
Operation of order Division 3
s. 116
1 (h) a requirement that the involuntary community patient
2 notify the supervising psychiatrist or treating
3 practitioner of any interstate or overseas travel by the
4 patient --
5 (i) at least 7 days before the day of the patient's
6 departure; or
7 (ii) if the patient cannot comply with
8 subparagraph (i) because the patient needs to
9 travel urgently -- as soon as it is practicable for
10 the patient to give notice of the travel.
11 (2) For subsection (1)(f), the treatment period specified in a
12 community treatment order when it is made cannot exceed
13 3 months from the day on which it is made.
14 Notes for section 115:
15 1. The supervising psychiatrist can also be the treating practitioner (see
16 section 136(2)(b)).
17 2. The terms of a community treatment order may require the involuntary
18 community patient to be provided with treatment by a mental health
19 service in another State or a Territory (see section 557).
20 Division 3 -- Operation of order
21 116. Duration of order
22 A community treatment order remains in force until the first of
23 these things occurs --
24 (a) the supervising psychiatrist makes an inpatient treatment
25 order under section 120(2)(a), 123(1)(a) or 131(2)(a) in
26 respect of the involuntary community patient;
27 (b) a psychiatrist makes an inpatient treatment order under
28 any other provision of this Act in respect of the
29 involuntary community patient;
30 (c) the supervising psychiatrist revokes the order under
31 section 120(2)(b) or 131(2)(b);
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Part 8 Community treatment orders
Division 3 Operation of order
s. 117
1 (d) the expiry of the treatment period for the order unless
2 the order has been continued under a continuation order.
3 Notes for section 116:
4 1. In addition to the provisions referred to in section 116(a), an inpatient
5 treatment order authorising a person's detention at an authorised
6 hospital can be made under section 55(1)(a), 56(1)(a)(i) or 72(1)(a) or
7 at a general hospital under section 61(1)(a).
8 2. A community treatment order may be suspended under section 30
9 or 33.
10 117. Advice about when and where treatment to be provided
11 (1) The supervising psychiatrist must ensure that the involuntary
12 community patient is advised of when and where treatment is to
13 be provided to the patient under the community treatment order.
14 (2) Without limiting subsection (1), the supervising psychiatrist
15 must ensure that, on or within 14 days after the day on which
16 the community treatment order is made, the involuntary
17 community patient is advised in writing of the date, time and
18 place of the involuntary community patient's first appointment
19 (whether with the treating practitioner or otherwise) for the
20 provision of treatment under the order.
21 118. Monthly examination of patient
22 (1) In this section --
23 first treatment period, for a community treatment order, means
24 the treatment period for which the order remains in force as
25 specified in the order under section 115(2);
26 review period, for a community treatment order, means --
27 (a) the period of one month beginning on the day on which
28 the first treatment period for the order begins; or
29 (b) the period of one month beginning on the day after the
30 day on which the involuntary community patient was
31 last examined under subsection (2) for the purposes of
32 the order.
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Community treatment orders Part 8
Operation of order Division 3
s. 118
1 (2) The involuntary community patient must be examined, on or
2 within 14 days before the day on which a review period for a
3 community treatment order ends, by --
4 (a) the supervising psychiatrist; or
5 (b) another medical practitioner or a mental health
6 practitioner --
7 (i) if the supervising psychiatrist is unavailable; or
8 (ii) if requested by the supervising psychiatrist under
9 section 119(1).
10 (3) However, the involuntary community patient cannot be
11 examined by a practitioner under subsection (2)(b) if more than
12 2 months has elapsed since the day on which the patient was last
13 examined under subsection (2)(a) by the supervising
14 psychiatrist.
15 (4) Part 6 Division 3 Subdivision 6 applies in relation to the
16 conduct of an examination under subsection (2).
17 (5) A practitioner who examines the involuntary community patient
18 under subsection (2)(b) must provide the supervising
19 psychiatrist with a written report of the examination that
20 includes a recommendation about whether or not, having regard
21 to the criteria specified in section 25, the patient is still in need
22 of an involuntary treatment order.
23 (6) The supervising psychiatrist must file the following --
24 (a) a record of each examination of the involuntary
25 community patient that the supervising psychiatrist
26 conducts under subsection (2)(a);
27 (b) each report of an examination of the involuntary
28 community patient provided to the supervising
29 psychiatrist under subsection (5).
page 87
Mental Health Bill 2013
Part 8 Community treatment orders
Division 3 Operation of order
s. 119
1 119. Supervising psychiatrist may request practitioner to
2 examine involuntary community patient
3 (1) For the purpose of section 118(2)(b)(ii), the supervising
4 psychiatrist may request another medical practitioner or a
5 mental health practitioner to examine the involuntary
6 community patient.
7 (2) The request must be in the approved form and may specify
8 requirements for carrying out the examination or preparing the
9 report or both.
10 120. What supervising psychiatrist may do after examination
11 (1) This section applies --
12 (a) on completion of the examination of the involuntary
13 community patient by the supervising psychiatrist under
14 section 118(2)(a); or
15 (b) on provision of a report about the involuntary
16 community patient to the supervising psychiatrist under
17 section 118(5).
18 (2) The supervising psychiatrist must consider whether or not the
19 involuntary community patient is still in need of an involuntary
20 treatment order and may make either of these orders --
21 (a) if satisfied, having regard to the criteria specified in
22 section 25, that the involuntary community patient is
23 still in need of an involuntary treatment order but not
24 satisfied of the things referred to in section 114(a)
25 and (b) -- an inpatient treatment order authorising the
26 patient's detention at the authorised hospital specified in
27 the order for the period specified in the order in
28 accordance with section 87(a) or (b); or
29 (b) if satisfied, having regard to the criteria specified in
30 section 25, that the involuntary community patient is no
31 longer in need of an involuntary treatment order -- an
32 order revoking the community treatment order.
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Community treatment orders Part 8
Operation of order Division 3
s. 120
1 (3) The supervising psychiatrist cannot make an inpatient treatment
2 order without examining the involuntary community patient in
3 accordance with Part 6 Division 3 Subdivision 6, which
4 examination can be the examination conducted under
5 section 118(2)(a).
6 (4) The supervising psychiatrist can make an order revoking the
7 community treatment order --
8 (a) after examining the involuntary community patient in
9 accordance with Part 6 Division 3 Subdivision 6; or
10 (b) without examining the involuntary community patient
11 but on the basis of a report provided to the psychiatrist
12 under section 118(5).
13 (5) An order made under subsection (2) must be in the approved
14 form and must include the following --
15 (a) the date and time when it is made;
16 (b) if it is made under subsection (2)(a) -- the reasons for
17 making it;
18 (c) the name, qualifications and signature of the supervising
19 psychiatrist making it.
20 (6) The supervising psychiatrist must, as soon as practicable, file
21 the order and give a copy to the involuntary community patient.
22 (7) The making of an order under subsection (2) is an event to
23 which Part 9 applies and the supervising psychiatrist is the
24 person responsible under that Part for notification of that event.
25 Note for section 120:
26 A community treatment order is automatically revoked under section 116(a) if
27 a psychiatrist makes an inpatient treatment order under section 120(2)(a), or
28 under section 116(b) if a psychiatrist makes an inpatient treatment order
29 under any other provision of this Act, in respect of the involuntary community
30 patient.
page 89
Mental Health Bill 2013
Part 8 Community treatment orders
Division 3 Operation of order
s. 121
1 121. Continuation order
2 (1) The supervising psychiatrist may, on or within 7 days before the
3 day on which a treatment period ends, make an order (a
4 continuation order) continuing the community treatment order
5 from the end of the treatment period for the further treatment
6 period (not exceeding 3 months) that is specified in the
7 continuation order.
8 (2) The supervising psychiatrist cannot make the continuation order
9 without examining the involuntary community patient in
10 accordance with Part 6 Division 3 Subdivision 6.
11 (3) The continuation order must be in the approved form and must
12 include the following --
13 (a) the date when it is made;
14 (b) the treatment period for which the community treatment
15 order is continued;
16 (c) the date when, because of the continuation, the
17 community treatment order will expire;
18 (d) the reasons for the continuation;
19 (e) the name, qualifications and signature of the supervising
20 psychiatrist.
21 (4) The supervising psychiatrist must, as soon as practicable, file
22 the continuation order and give a copy to the involuntary
23 community patient.
24 (5) The involuntary community patient may request in writing the
25 supervising psychiatrist to obtain the opinion (a further
26 opinion) of another psychiatrist about whether it is appropriate
27 to have continued the community treatment order by making the
28 continuation order (but not whether the length of the treatment
29 period specified in the continuation order is appropriate).
30 (6) Sections 182 and 184 apply (with the necessary changes) in
31 relation to the further opinion.
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Community treatment orders Part 8
Operation of order Division 3
s. 122
1 (7) The continuation order does not come into force or ceases to be
2 in force, as the case requires, if the further opinion --
3 (a) is not obtained on or within 14 days after the day on
4 which the involuntary community patient's request is
5 received by the supervising psychiatrist; or
6 (b) does not confirm that it is appropriate to have continued
7 the community treatment order.
8 (8) Subsection (7) does not apply if the further opinion is not
9 obtained within the 14-day period referred to in
10 subsection (7)(a) because the involuntary community patient did
11 not attend an examination to be conducted by the psychiatrist
12 responsible for giving the further opinion.
13 122. Varying order
14 (1) The supervising psychiatrist may, at any time while a
15 community treatment order is in force, make an order varying
16 the terms of the community treatment order in any way that is
17 consistent with section 115 and the supervising psychiatrist
18 considers appropriate.
19 (2) The order must be in the approved form and must include the
20 following --
21 (a) the date and time when it is made;
22 (b) the variation;
23 (c) the reasons for the variation;
24 (d) the name, qualifications and signature of the supervising
25 psychiatrist.
26 (3) The supervising psychiatrist must, as soon as practicable, file
27 the order and give a copy to the involuntary community patient.
page 91
Mental Health Bill 2013
Part 8 Community treatment orders
Division 3 Operation of order
s. 123
1 123. Making inpatient treatment order or revoking community
2 treatment order
3 (1) The supervising psychiatrist may, at any time while a
4 community treatment order is in force, make either of these
5 orders --
6 (a) if satisfied, having regard to the criteria specified in
7 section 25(1), that the involuntary community patient is
8 in need of an inpatient treatment order -- an inpatient
9 treatment order;
10 (b) if satisfied, having regard to the criteria specified in
11 section 25, that the involuntary community patient is no
12 longer in need of an involuntary treatment order -- an
13 order revoking the community treatment order.
14 (2) The supervising psychiatrist cannot make an inpatient treatment
15 order without examining the involuntary community patient in
16 accordance with Part 6 Division 3 Subdivision 6.
17 (3) The supervising psychiatrist can make an order revoking the
18 community treatment order --
19 (a) after examining the involuntary community patient in
20 accordance with Part 6 Division 3 Subdivision 6; or
21 (b) without examining the involuntary community patient,
22 but in doing so must have regard to the information
23 specified in subsection (4).
24 (4) The supervising psychiatrist must have regard to any
25 information about the patient that is obtained by the
26 psychiatrist --
27 (a) from either or both of --
28 (i) the involuntary community patient, including
29 information obtained by observing the patient
30 and asking the patient questions; and
31 (ii) any other person;
32 and
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Community treatment orders Part 8
Operation of order Division 3
s. 123
1 (b) from the involuntary community patient's medical
2 record.
3 (5) The supervising psychiatrist may make an order under
4 subsection (1) without any of these things occurring --
5 (a) the involuntary community patient being in breach of
6 the community treatment order under section 126;
7 (b) the supervising psychiatrist giving the involuntary
8 community patient notice of a breach of the community
9 treatment order under section 127(2)(b);
10 (c) the supervising psychiatrist making an order to attend
11 under section 128(2).
12 (6) An order made under subsection (1) must be in the approved
13 form and must include the following --
14 (a) the date and time when it is made;
15 (b) if it is made under subsection (1)(a) -- the reasons for
16 making it;
17 (c) the name, qualifications and signature of the supervising
18 psychiatrist.
19 (7) The supervising psychiatrist must, as soon as practicable, file
20 the order and give a copy to the involuntary community patient.
21 (8) The making of an order under subsection (1) is an event to
22 which Part 9 applies and the supervising psychiatrist is the
23 person responsible under that Part for notification of that event.
24 Note for section 123:
25 A community treatment order is automatically revoked under section 116(a) if
26 a psychiatrist makes an inpatient treatment order under section 123(1)(a) in
27 respect of the involuntary community patient.
page 93
Mental Health Bill 2013
Part 8 Community treatment orders
Division 3 Operation of order
s. 124
1 124. Confirmation of inpatient treatment order
2 (1) This section applies if --
3 (a) the supervising psychiatrist makes an inpatient treatment
4 order under section 120(2)(a) or 123(1)(a) in respect of
5 the involuntary community patient; and
6 (b) the supervising psychiatrist and the involuntary
7 community patient were not in one another's physical
8 presence when the examination for the purpose of
9 making the inpatient treatment order was conducted; and
10 (c) since that examination was conducted, there has been no
11 further examination of the involuntary community
12 patient conducted by a psychiatrist during which the
13 psychiatrist and the patient were in one another's
14 physical presence.
15 (2) Within 24 hours after the involuntary community patient is
16 admitted by the authorised hospital in accordance with the
17 inpatient treatment order, the order must be confirmed by a
18 psychiatrist at the authorised hospital.
19 (3) The psychiatrist cannot confirm the inpatient treatment order
20 without examining the involuntary community patient.
21 (4) Subdivision 6 applies in relation to the conduct of the
22 examination.
23 (5) The confirmation must be in the approved form and must
24 include the following --
25 (a) the date and time when it is made;
26 (b) the reasons for the confirmation;
27 (c) the name, qualifications and signature of the
28 psychiatrist.
29 (6) The inpatient treatment order ceases to be in force if it is not
30 confirmed in accordance with subsection (2).
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Mental Health Bill 2013
Community treatment orders Part 8
Breach of order Division 4
s. 125
1 (7) The release of a person because of subsection (6) is an event to
2 which Part 9 applies and the person in charge of the authorised
3 hospital is the person responsible under that Part for notification
4 of that event.
5 125. Involuntary community patient to be advised of expiry
6 (1) This section applies if a community treatment order expires.
7 (2) The supervising psychiatrist must advise the involuntary
8 community patient in writing of the expiry and its
9 consequences.
10 (3) The supervising psychiatrist must file a copy of the advice.
11 Note for Division 3:
12 Part 21 Division 3 confers jurisdiction on the Mental Health Tribunal to
13 conduct reviews relating to involuntary patients.
14 Division 4 -- Breach of order
15 126. When involuntary community patient will be in breach
16 An involuntary community patient breaches a community
17 treatment order if --
18 (a) the involuntary community patient has not complied
19 with the order; and
20 (b) all reasonable steps have been taken to obtain the
21 involuntary community patient's compliance; and
22 (c) the supervising psychiatrist reasonably believes that --
23 (i) despite the steps that have been taken, the
24 non-compliance is continuing; and
25 (ii) there is a significant risk of the involuntary
26 community patient suffering serious physical or
27 mental deterioration if the non-compliance
28 continues.
page 95
Mental Health Bill 2013
Part 8 Community treatment orders
Division 4 Breach of order
s. 127
1 127. What supervising psychiatrist must do if order breached
2 (1) This section applies if an involuntary community patient
3 breaches a community treatment order.
4 (2) The supervising psychiatrist must --
5 (a) record the breach; and
6 (b) give notice of the breach to the involuntary community
7 patient.
8 (3) The record of breach must be in the approved form and must
9 include these things --
10 (a) details of the involuntary community patient's
11 non-compliance;
12 (b) the steps that have been taken to obtain the involuntary
13 community patient's compliance;
14 (c) a statement that the supervising psychiatrist holds the
15 belief referred to in section 126(c);
16 (d) the facts on which that belief is based;
17 (e) the reasons for that belief.
18 (4) The notice of breach must be in the approved form and must
19 include these things --
20 (a) details of the involuntary community patient's
21 non-compliance;
22 (b) details of what the involuntary community patient must
23 do to comply;
24 (c) a statement that continued non-compliance with the
25 order may result in the involuntary community patient
26 being required to attend a place to enable the patient to
27 be provided with treatment.
28 (5) The supervising psychiatrist must, as soon as practicable, file
29 the record of breach and a copy of the notice of breach.
page 96
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Community treatment orders Part 8
Breach of order Division 4
s. 128
1 128. Order to attend if non-compliance continues
2 (1) This section applies if, having given the involuntary community
3 patient notice of the breach under section 127(2)(b), the
4 supervising psychiatrist is not satisfied that the patient is
5 complying with the community treatment order.
6 (2) The supervising psychiatrist may make an order (an order to
7 attend) requiring the involuntary community patient to attend at
8 the time and place specified in the order to be provided with
9 treatment.
10 (3) The order to attend must include a warning that, if the
11 involuntary community patient does not comply with the order,
12 a transport order authorising the patient's apprehension and
13 transport to the place specified in the order to attend may be
14 made.
15 (4) The order to attend must be in the approved form and must
16 include the following --
17 (a) the date and time when it is made;
18 (b) the reasons for making it;
19 (c) the time and place referred to in subsection (2);
20 (d) the warning referred to in subsection (3);
21 (e) the name, qualifications and signature of the supervising
22 psychiatrist.
23 (5) The supervising psychiatrist must, as soon as practicable, file
24 the order to attend and give a copy to the involuntary
25 community patient.
26 129. Making transport order
27 (1) This section applies if an involuntary community patient does
28 not comply with an order to attend.
29 (2) A medical practitioner or mental health practitioner may make a
30 transport order in respect of the involuntary community patient.
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Part 8 Community treatment orders
Division 4 Breach of order
s. 130
1 (3) The practitioner cannot make the transport order unless satisfied
2 that no other safe means of ensuring the involuntary community
3 patient attends the place is reasonably available.
4 (4) Part 10 applies in relation to the transport order.
5 130. Detention at place specified in order to attend
6 (1) This section applies in relation to an involuntary community
7 patient who --
8 (a) attends a place in compliance with an order to attend; or
9 (b) is transported to a place under a transport order made
10 under section 129(2).
11 (2) The involuntary community patient --
12 (a) must be received into the place; and
13 (b) can be detained at the place until the first of these things
14 occurs --
15 (i) treatment is provided to the involuntary
16 community patient;
17 (ii) the supervising psychiatrist makes an order under
18 section 131(2)(a) in respect of the patient;
19 (iii) the expiry of 6 hours from the time when the
20 patient was received.
21 (3) A person prescribed by the regulations for this subsection is
22 authorised to exercise the powers under section 172 for the
23 purpose of detaining the involuntary community patient at the
24 place.
25 (4) The involuntary community patient cannot continue to be
26 detained if, by the end of the 6-hour period referred to in
27 subsection (2)(b)(iii) --
28 (a) treatment has not been provided to the involuntary
29 community patient; and
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Mental Health Bill 2013
Community treatment orders Part 8
Breach of order Division 4
s. 131
1 (b) the supervising psychiatrist has not made an order under
2 section 131(2)(a) in respect of the involuntary
3 community patient.
4 (5) The release of a person because of subsection (4) is an event to
5 which Part 9 applies and the person in charge of the place is the
6 person responsible under that Part for notification of that event.
7 Notes for section 130:
8 1. Part 7 Division 4 applies in relation to the release of an involuntary
9 community patient who is detained at a place under section 130(2)(b).
10 2. Part 7 Division 5 applies if an involuntary community patient is absent
11 without leave from the place where the patient can be detained under
12 section 130(2)(b).
13 131. Other action that may be taken if non-compliance
14 (1) This section applies in these circumstances --
15 (a) an involuntary community patient is in breach of a
16 community treatment order under section 126;
17 (b) the supervising psychiatrist has given the involuntary
18 community patient notice of the breach under
19 section 127(2)(b);
20 (c) since the involuntary community patient was given the
21 notice --
22 (i) the patient's non-compliance with the
23 community treatment order has continued; or
24 (ii) the supervising psychiatrist has made an order to
25 attend under section 128(2) with which the
26 patient has not complied despite being given a
27 copy of the order.
28 (2) The supervising psychiatrist may make either of these orders --
29 (a) if satisfied, having regard to the criteria specified in
30 section 25, that the involuntary community patient is
31 still in need of an involuntary treatment order but not
32 satisfied of the things referred to in section 114(a)
33 and (b) -- an inpatient treatment order authorising the
page 99
Mental Health Bill 2013
Part 8 Community treatment orders
Division 4 Breach of order
s. 131
1 patient's detention at the hospital specified in the order
2 for the period specified in the order in accordance with
3 section 87(a) or (b);
4 (b) if satisfied, having regard to the criteria specified in
5 section 25, that the involuntary community patient is no
6 longer in need of an involuntary treatment order -- an
7 order revoking the community treatment order.
8 (3) The supervising psychiatrist cannot make an inpatient treatment
9 order without examining the involuntary community patient in
10 accordance with Part 6 Division 3 Subdivision 6.
11 (4) The supervising psychiatrist cannot make an inpatient treatment
12 order authorising the involuntary community patient's detention
13 at a general hospital unless --
14 (a) satisfied that attempting to take the involuntary
15 community patient to, or to detain the involuntary
16 community patient at, an authorised hospital poses a
17 significant risk to the patient's physical health; and
18 (b) the Chief Psychiatrist consents to the order being made.
19 (5) The supervising psychiatrist can make an order revoking the
20 community treatment order --
21 (a) after examining the involuntary community patient in
22 accordance with Part 6 Division 3 Subdivision 6; or
23 (b) without examining the involuntary community patient,
24 but in doing so must have regard to any information
25 about the patient that is obtained by the psychiatrist
26 from --
27 (i) clinical observation of the involuntary
28 community patient; and
29 (ii) any person other than the involuntary community
30 patient; and
31 (iii) the involuntary community patient's medical
32 record.
page 100
Mental Health Bill 2013
Community treatment orders Part 8
Transport to hospital Division 5
s. 132
1 (6) An order made under subsection (2) must be in the approved
2 form and must include the following --
3 (a) the date and time when it is made;
4 (b) the reasons for making it;
5 (c) the name, qualifications and signature of the supervising
6 psychiatrist.
7 (7) The supervising psychiatrist must, as soon as practicable, file
8 the order and give a copy to the involuntary community patient.
9 (8) The making of an order under subsection (2) is an event to
10 which Part 9 applies and the supervising psychiatrist is the
11 person responsible under that Part for notification of that event.
12 Notes for section 131:
13 1. A community treatment order is automatically revoked under
14 section 116(a) if a psychiatrist makes an inpatient treatment order
15 under section 131(2)(a) in respect of the involuntary community
16 patient.
17 2. Part 6 Division 3 Subdivision 3 applies in relation to the transfer of an
18 involuntary inpatient under an involuntary inpatient treatment order
19 made under section 131(2)(a) from the general hospital specified in the
20 order to an authorised hospital.
21 Division 5 -- Transport to hospital
22 132. Application of this Division
23 This Division applies if the supervising psychiatrist makes an
24 inpatient treatment order under section 120(2)(a), 123(1)(a)
25 or 131(2)(a) authorising the involuntary community patient's
26 detention in a hospital.
27 133. Making transport order
28 (1) A medical practitioner or mental health practitioner may make a
29 transport order in respect of the involuntary community patient.
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Part 8 Community treatment orders
Division 6 Supervising psychiatrist and treating practitioner
s. 134
1 (2) The practitioner cannot make the transport order unless satisfied
2 that --
3 (a) because of the involuntary community patient's mental
4 or physical condition, the patient needs to be taken to
5 the hospital; and
6 (b) no other safe means of taking the involuntary
7 community patient is reasonably available.
8 (3) Part 10 applies in relation to the transport order.
9 Division 6 -- Supervising psychiatrist and treating practitioner
10 134. Supervising psychiatrist
11 (1) The supervising psychiatrist under a community treatment order
12 is responsible for supervising the carrying out of the order.
13 (2) The supervising psychiatrist under a community treatment order
14 must be --
15 (a) the psychiatrist who makes the order; or
16 (b) another psychiatrist.
17 135. Change of supervising psychiatrist
18 (1) The supervising psychiatrist under a community treatment
19 order --
20 (a) may, by arrangement, transfer a psychiatrist's
21 responsibility as the supervising psychiatrist under the
22 order to another psychiatrist; and
23 (b) on transferring that responsibility, must inform the
24 patient in writing of the transfer.
25 (2) The Chief Psychiatrist or a person authorised under
26 subsection (3) --
27 (a) may, by arrangement, transfer a psychiatrist's
28 responsibility as the supervising psychiatrist under a
29 community treatment order to another psychiatrist; and
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Community treatment orders Part 8
Supervising psychiatrist and treating practitioner Division 6
s. 136
1 (b) on transferring that responsibility, must inform the
2 involuntary community patient in writing of the transfer.
3 (3) The Chief Psychiatrist may authorise a person in writing to
4 exercise the power under subsection (2) in respect of all or any
5 of the involuntary community patients --
6 (a) being provided with treatment under community
7 treatment orders by the mental health service specified
8 in the authorisation; or
9 (b) who reside in an area of the State specified in the
10 authorisation.
11 (4) An authorisation under subsection (3) has effect for the period
12 specified in the authorisation.
13 136. Treating practitioner
14 (1) The treating practitioner under a community treatment order is
15 responsible for ensuring that the involuntary community patient
16 is provided with the treatment specified in the treatment plan
17 outlined in the order.
18 (2) The treating practitioner under a community treatment order --
19 (a) must be a medical practitioner or mental health
20 practitioner; and
21 (b) can be the supervising psychiatrist under the order or
22 another psychiatrist.
23 137. Change of treating practitioner
24 The supervising psychiatrist under a community treatment
25 order --
26 (a) may, by arrangement, transfer a practitioner's
27 responsibility as the treating practitioner under the order
28 to another practitioner; and
29 (b) on transferring that responsibility, must inform the
30 involuntary community patient in writing of the transfer.
page 103
Mental Health Bill 2013
Part 9 Notifiable events
Division 1 Preliminary matters
s. 138
1 Part 9 -- Notifiable events
2 Division 1 -- Preliminary matters
3 138. Application of this Part
4 (1) This Part applies in relation to an event (a notifiable event) if a
5 provision of this Act specifies --
6 (a) that the event is an event to which this Part applies; and
7 (b) who is the person responsible under this Part for
8 notification of the event.
9 (2) Schedule 2 sets out for each event --
10 (a) the relevant provision; and
11 (b) a description of the event; and
12 (c) the person responsible for notification of the event.
13 Division 2 -- Notification of carers, close family members and
14 other personal support persons
15 139. Right of any carer, close family member or other personal
16 support person to be notified
17 (1) Any carer, close family member or other personal support
18 person of a person is entitled to be notified, as soon as
19 practicable, that a notifiable event has occurred in respect of the
20 person.
21 (2) However, the entitlement of a nominated person, carer or close
22 family member to be notified under subsection (1) is subject to
23 section 142.
24 140. Person responsible required to notify any carer, close family
25 member or other personal support person
26 (1) The person responsible under this Part for notification of a
27 notifiable event must ensure that, as soon as practicable after the
28 event occurs in respect of a person, any carer, close family
page 104
Mental Health Bill 2013
Notifiable events Part 9
Notification of carers, close family members and other Division 2
personal support persons
s. 141
1 member or other personal support person of the person is
2 notified of the event.
3 (2) However, the person responsible is not required to notify a
4 nominated person, carer or close family member of a notifiable
5 event if the nominated person, carer or close family member is
6 not entitled, for a reason referred to in section 142(1) or (2), to
7 be notified of the event.
8 Note for section 140:
9 Any notification provided under section 140(1) must be provided in
10 accordance with section 9(2).
11 141. Reasonable efforts to notify carer, close family member or
12 other personal support person
13 (1) Without limiting the requirement under section 140(1), the
14 requirement is taken to have been complied with if the person
15 responsible for notification ensures that reasonable efforts to
16 notify any carer, close family member or other personal support
17 person of the notifiable event continue to be made until the first
18 of these things occurs --
19 (a) at least one carer, close family member or other personal
20 support person is notified of the notifiable event; or
21 (b) it is reasonable for the person responsible to conclude
22 that no carer, close family member or other personal
23 support person can be notified of the notifiable event.
24 (2) The person responsible must ensure that one of the following is
25 filed --
26 (a) a record of when and how any carer, close family
27 member or other personal support person was notified
28 under section 140(1) of the notifiable event;
29 (b) if no carer, close family member or other personal
30 support person has been notified under section 140(1) of
31 the notifiable event -- a record of the reasons for that
32 and any efforts made to do so.
page 105
Mental Health Bill 2013
Part 9 Notifiable events
Division 2 Notification of carers, close family members and other
personal support persons
s. 142
1 142. Notification not in person's best interests
2 (1) A nominated person, carer or close family member is not
3 entitled to be notified under section 140(1) of the making of an
4 order under section 28(1) or (2) for the detention or further
5 detention of a person, or the making of a transport order under
6 section 29(1) in respect of a person, if the medical practitioner
7 or authorised mental health practitioner who makes the order
8 reasonably believes that it is not in the best interests of the
9 person for the nominated person, carer or close family member
10 to be notified of the making of the order.
11 (2) A nominated person, carer or close family member is not
12 entitled to be notified under section 140(1) of any other
13 notifiable event that occurs in respect of a person if a
14 psychiatrist believes that it is not in the best interests of the
15 person for the nominated person, carer or close family member
16 to be notified of the event.
17 (3) A practitioner or psychiatrist who decides under subsection (1)
18 or (2) that a nominated person, carer or close family member is
19 not entitled to be notified of a notifiable event must, as soon as
20 practicable --
21 (a) file a record of the decision and the reasons for it; and
22 (b) give a copy to the Chief Mental Health Advocate.
23 Note for section 142:
24 For the purpose of deciding under section 142(1) or (2) what is or is not in the
25 best interests of a person, Part 2 Division 3 applies.
26 143. Advising nominated person, carer or close family member of
27 decision
28 (1) A practitioner or psychiatrist who decides under section 142 that
29 a nominated person, carer or close family member is not entitled
30 to be notified of a notifiable event must, if the nominated
31 person, carer or close family member requests to be notified of
32 the event --
33 (a) advise the nominated person, carer or close family
34 member of the decision and the reasons for it; and
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Notifiable events Part 9
Notification of carers, close family members and other Division 2
personal support persons
s. 144
1 (b) file a record of the advice and give a copy to the person
2 in respect of whom the notifiable event occurs.
3 (2) A nominated person, carer or close family member to whom
4 advice is provided orally under subsection (1)(a) may request
5 the practitioner or psychiatrist who provided the advice to
6 confirm the advice in writing.
7 (3) The practitioner or psychiatrist must --
8 (a) comply with the request; and
9 (b) file a copy of the confirmation and give another copy to
10 the person in respect of whom the notifiable event
11 occurs.
12 Note for section 143:
13 Any advice provided under section 143(1)(a) or (3)(a) must be provided in
14 accordance with section 9(2).
15 144. Revocation of decision
16 (1) A practitioner or psychiatrist may revoke a decision made under
17 section 142 that a nominated person, carer or close family
18 member is not entitled to be notified of a notifiable event if
19 satisfied that the reasons for making the decision no longer
20 apply.
21 (2) The practitioner or psychiatrist must, as soon as practicable, file
22 a record of the revocation and the reasons for it.
23 (3) If the nominated person, carer or close family member
24 previously requested to be notified of the event, the practitioner
25 or psychiatrist must ensure that, as soon as practicable --
26 (a) the nominated person, carer or close family member is
27 notified of the notifiable event; and
28 (b) a record of when and how the nominated person, carer
29 or close family member was notified is filed and a copy
30 given to the person in respect of whom the notifiable
31 event occurred.
page 107
Mental Health Bill 2013
Part 9 Notifiable events
Division 3 Notification of other persons and bodies
s. 145
1 Division 3 -- Notification of other persons and bodies
2 145. Making, revocation or expiry of involuntary treatment
3 order
4 (1) The person responsible under this Part for notification of the
5 making of an involuntary treatment order must ensure that, as
6 soon as practicable, each of the persons and bodies specified in
7 subsection (4) is --
8 (a) given a copy of the involuntary treatment order; and
9 (b) either --
10 (i) given the name and contact details of any carer,
11 close family member or other personal support
12 person who has been notified under
13 section 140(1) of the making of the involuntary
14 treatment order, to the extent that information is
15 known to the person responsible; or
16 (ii) if no carer, close family member or other
17 personal support person has been notified under
18 section 140(1) of the making of the involuntary
19 treatment order -- advised of that and the
20 reasons for it.
21 (2) The person responsible under this Part for notification of the
22 making of an order revoking an involuntary treatment order
23 must ensure that, as soon as practicable, each of the persons and
24 bodies specified in subsection (4) is given a copy of the order.
25 (3) The person responsible under this Part for notification of the
26 expiry of an involuntary treatment order must ensure that, as
27 soon as practicable, each of the persons and bodies specified in
28 subsection (4) is advised in writing of the expiry.
29 (4) For subsections (1), (2) and (3), each of these persons and
30 bodies is specified --
31 (a) the Chief Mental Health Advocate;
32 (b) the Mental Health Tribunal;
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Notifiable events Part 9
Notification of other persons and bodies Division 3
s. 145
1 (c) if the involuntary patient is a mentally impaired
2 accused -- the Mentally Impaired Accused Review
3 Board.
4 (5) The person responsible must ensure that the following are
5 filed --
6 (a) a record of --
7 (i) each person or body to whom a copy of an order
8 is given under subsection (1)(a) or (2) or advice
9 is provided under subsection (3); and
10 (ii) the date on which the copy is given or the advice
11 provided to that person or body;
12 (b) a record of --
13 (i) each person or body to whom any information
14 referred to in subsection (1)(b) is provided; and
15 (ii) details of the information provided to that person
16 or body; and
17 (iii) the date on which the information is provided to
18 that person or body.
page 109
Mental Health Bill 2013
Part 10 Transport orders
s. 146
1 Part 10 -- Transport orders
2 146. Application of this Part
3 This Part applies in relation to a transport order made under any
4 of these provisions --
5 (a) section 29(1) to enable a person who is referred under
6 section 26(2) or (3)(a) to be taken to an authorised
7 hospital or other place;
8 (b) section 63(1) to enable a person who is under an
9 inpatient treatment order made under section 61(1)(a) to
10 be taken to a general hospital;
11 (c) section 63(1) to enable a person who is under an order
12 for a further examination made under section 61(1)(c) to
13 be taken to an authorised hospital;
14 (d) section 67(1) to enable an involuntary inpatient who is
15 under a transfer order made under section 66(1) to be
16 transferred to an authorised hospital;
17 (e) section 92(1) to enable an involuntary inpatient who is
18 under a transfer order made under section 91(2) to be
19 transferred to an authorised hospital;
20 (f) section 112(1) to enable an involuntary patient who is
21 granted leave of absence, or whose leave of absence has
22 been cancelled or expired, to be taken to a hospital;
23 (g) section 129(2) to enable an involuntary community
24 patient who is not complying with an order to attend
25 made under section 128(2) to be taken to a specified
26 place;
27 (h) section 133(1) to enable an involuntary community
28 patient who is under an inpatient treatment order made
29 under section 120(2)(a), 123(1)(a) or 131(2)(a) to be
30 taken to a hospital.
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Mental Health Bill 2013
Transport orders Part 10
s. 147
1 147. Transport officers
2 The regulations may authorise a person, or a person in a class of
3 person, (a transport officer) to carry out a transport order.
4 148. Making transport order
5 (1) A transport order must be in the approved form and must
6 include the following --
7 (a) the name of the person to be transported;
8 (b) the place from which the person is to be transported;
9 (c) the hospital or other place to which the person must be
10 transported;
11 (d) the reasons why, in order to transport the person to that
12 hospital or other place, it is necessary to make the order;
13 (e) whether the order is to be carried out by a transport
14 officer or, if section 149(2) applies, a police officer;
15 (f) if the order is to be carried out by a police officer,
16 having regard to the matters referred to in
17 section 149(2)(a) and (b) -- the reasons why it cannot
18 be carried out by a transport officer;
19 (g) the date and time when the order is made;
20 (h) the date and time when the order will expire under
21 section 150(2)(a), (b) or (c);
22 (i) whether or not the order can be extended because of
23 section 151(2) or under section 152(3) and, if it can, the
24 process for extending it;
25 (j) the name, qualifications and signature of the psychiatrist
26 or practitioner making the order.
27 (2) A practitioner or psychiatrist who makes a transport order in
28 respect of a person must, as soon as practicable --
29 (a) file it and give a copy to the person; and
30 (b) give a copy to the transport officer or police officer
31 responsible for carrying out the order.
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Mental Health Bill 2013
Part 10 Transport orders
s. 149
1 149. Operation of transport order
2 (1) A transport order made in respect of a person authorises a
3 transport officer or, if subsection (2) applies, a police officer to
4 do these things --
5 (a) apprehend the person and, for that purpose, exercise the
6 powers under sections 159(2) and 172;
7 (b) if the person is apprehended -- transport the person to
8 the hospital or other place specified in the order as soon
9 as practicable and, in any event, before the transport
10 order expires;
11 (c) for the purpose of transporting the person, detain the
12 person until the first of these things occurs --
13 (i) the person is received into the hospital or other
14 place;
15 (ii) the transport order expires.
16 (2) A transport order can only authorise a police officer instead of a
17 transport officer to carry out the order if the practitioner or
18 psychiatrist making the order is satisfied --
19 (a) that there is a significant risk of serious harm to the
20 person being transported or to another person; or
21 (b) that --
22 (i) a transport officer will not be available to carry
23 out the order within a reasonable time; and
24 (ii) any delay in carrying out the order beyond that
25 time is likely to pose a significant risk of harm to
26 the person being transported or to another
27 person.
28 150. Period of transport order
29 (1) A transport order remains in force for the period specified in
30 subsection (2) in respect of the order.
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Transport orders Part 10
s. 151
1 (2) For subsection (1), the period is --
2 (a) if the transport order is made under section 29(1), the
3 period --
4 (i) beginning at the time when the transport order is
5 made; and
6 (ii) ending at the time when the referral expires
7 under section 44 unless the transport order is
8 extended because of section 151(2);
9 or
10 (b) if the transport order is made under section 63(1), the
11 period --
12 (i) beginning at the time when the transport order is
13 made; and
14 (ii) ending 72 hours after the time when the inpatient
15 treatment order was made under section 61(1)(a)
16 or the order for a further examination was made
17 under section 61(1)(c), as the case requires,
18 unless the transport order is extended under
19 section 152(3);
20 or
21 (c) if the transport order is made under section 67(1), 92(1),
22 112(1), 129(2) or 133(1), the period --
23 (i) beginning at the time when the transport order is
24 made; and
25 (ii) ending 72 hours afterwards unless the transport
26 order is extended under section 152(3).
27 151. Extension of transport order made under s. 29(1) if referral
28 extended
29 (1) This section applies if --
30 (a) a transport order is made under section 29(1) to enable a
31 person who is referred to be taken to an authorised
32 hospital or other place; and
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Mental Health Bill 2013
Part 10 Transport orders
s. 152
1 (b) the place from which the person is being transported is
2 outside a metropolitan area; and
3 (c) the referral is extended under section 45(3).
4 (2) The transport order is, because of this subsection, extended for
5 the same period as the referral.
6 152. Extension of other transport orders
7 (1) This section applies if --
8 (a) a transport order is made under section 63(1), 67(1),
9 92(1), 112(1), 129(2) or 133(1) in respect of a person;
10 and
11 (b) the place from which the person is being transported is
12 outside a metropolitan area; and
13 (c) the transport officer or police officer who is transporting
14 the person forms the opinion that the transport order is
15 likely to expire before the person is received into the
16 hospital or other place to which the person is being
17 transported.
18 (2) The transport officer or police officer may orally request an
19 extension of the transport order from a medical practitioner or
20 mental health practitioner.
21 (3) The practitioner may make an order (an extension order) orally
22 extending the transport order from the end of the period
23 specified in section 150(2)(b) or (c) in respect of the order for
24 the further period (not exceeding 72 hours) specified in the
25 extension order.
26 (4) The practitioner must, as soon as practicable --
27 (a) record the extension order in the approved form,
28 specifying --
29 (i) the date and time when the order was made; and
30 (ii) the date and time when, because of the extension,
31 the transport order will expire;
32 and
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Mental Health Bill 2013
Transport orders Part 10
s. 153
1 (b) file the record and give a copy to the transport officer or
2 police officer.
3 (5) The transport order cannot be extended more than once.
4 153. Revocation of transport order if referral revoked
5 A transport order made under section 29(1) in respect of a
6 person who is referred under section 26(2) or (3)(a) is, because
7 of this section, revoked if the referral is revoked under
8 section 31(1).
9 154. Revocation of transport order if no longer needed
10 (1) A medical practitioner or mental health practitioner may make
11 an order (a revocation order) revoking a transport order made in
12 respect of a person if satisfied that the transport order is no
13 longer needed.
14 (2) The revocation order must be in the approved form and must
15 include the following --
16 (a) the date and time when it is made;
17 (b) the reasons for the revocation;
18 (c) the name, qualifications and signature of the
19 practitioner.
20 (3) The practitioner must, as soon as practicable --
21 (a) file the revocation order and give a copy to the person;
22 and
23 (b) give a copy to the transport officer or police officer
24 responsible for carrying out the transport order.
25 155. Return of person if transport order expires or is revoked
26 (1) Subsection (2) applies if a transport order made in respect of a
27 person is revoked because of section 153, or expires, before the
28 person is received into the hospital or other place to which the
29 person was to have been transported under the order.
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Part 10 Transport orders
s. 155
1 (2) The transport officer or police officer who was responsible for
2 carrying out the transport order must take reasonable steps to
3 ensure the person is taken, at the person's election --
4 (a) back to the place from which the person was being or
5 was to have been transported; or
6 (b) to a place reasonably nominated by the person.
7 (3) Subsection (2) does not require the person to be taken to a place
8 if to do so poses a serious risk to the safety of the person or
9 another person.
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1 Part 11 -- Apprehension, search and seizure powers
2 Division 1 -- Apprehension powers
3 156. Apprehension by police officer of person suspected of
4 having mental illness
5 (1) A police officer may apprehend a person if the officer
6 reasonably suspects that the person --
7 (a) has a mental illness; and
8 (b) because of the mental illness, needs to be apprehended
9 to --
10 (i) protect the health or safety of the person or the
11 safety of another person; or
12 (ii) prevent the person causing, or continuing to
13 cause, serious damage to property.
14 (2) For the purpose of apprehending a person under subsection (1),
15 a police officer may exercise the powers under sections 159(2)
16 and 172.
17 (3) A police officer --
18 (a) must, as soon as practicable after apprehending a person
19 under subsection (1), arrange for the person to be
20 assessed by a medical practitioner or authorised mental
21 health practitioner for the purpose of deciding whether
22 or not to refer the person under section 26(2) or (3)(a)
23 for an examination to be conducted by a psychiatrist;
24 and
25 (b) is authorised to detain the person until the first of these
26 things occurs --
27 (i) the person is received into the place where the
28 assessment will be conducted;
29 (ii) the person is delivered into the care of the
30 medical practitioner or authorised mental health
31 practitioner who will assess the person;
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1 (iii) the police officer is satisfied that the grounds for
2 suspecting that the person needs to be
3 apprehended no longer exist.
4 (4) This section does not prevent a police officer from charging a
5 person apprehended under subsection (1) with an offence.
6 157. Assessment of person arrested
7 (1) This section applies if --
8 (a) a person is arrested by a police officer on suspicion of
9 having committed an offence; and
10 (b) the police officer reasonably suspects that the person has
11 a mental illness for which the person is in need of
12 immediate treatment.
13 (2) The police officer must, as soon as practicable, arrange for the
14 person to be assessed by a medical practitioner or authorised
15 mental health practitioner for the purpose of deciding whether
16 or not to refer the person under section 26(2) or (3)(a) for an
17 examination to be conducted by a psychiatrist.
18 (3) This section does not prevent a police officer from charging the
19 person arrested with an offence.
20 158. Police must be notified when person leaves
21 (1) This section applies if --
22 (a) the medical practitioner or authorised mental health
23 practitioner referred to in section 156(3)(a) or 157(2)
24 decides not to refer the person under section 26(2)
25 or (3)(a); or
26 (b) the person, having been referred under section 26(2)
27 or (3)(a), cannot continue to be detained under this Act.
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1 (2) The practitioner or the person in charge of the authorised
2 hospital or other place where the person was being detained
3 under this Act must ensure that --
4 (a) as soon as practicable, a police officer is informed that
5 the person has not been referred under section 26(2)
6 or (3)(a) or cannot continue to be detained under this
7 Act; and
8 (b) as soon as practicable after the police officer is
9 informed, a record of these things is filed --
10 (i) the name of the person who informed the police
11 officer of the person's release;
12 (ii) the police officer's name, rank and location;
13 (iii) the date and time when the police officer was
14 informed of the person's release.
15 159. Apprehension of other persons
16 (1) This section applies in relation to the apprehension of a
17 person --
18 (a) under section 99(a) by a police officer or person
19 prescribed for the purpose of carrying out an
20 apprehension and return order; or
21 (b) under section 149(1)(a) by a transport officer or police
22 officer for the purpose of carrying out a transport order;
23 or
24 (c) under section 156(1) by a police officer because the
25 person is suspected of having a mental illness and needs
26 to be apprehended.
27 (2) For the purpose of apprehending the person, the police officer,
28 person prescribed or transport officer may do any of these
29 things --
30 (a) enter any premises where the person is reasonably
31 suspected to be;
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s. 160
1 (b) search, in accordance with sections 163 and 172, the
2 person and any article found on or with the person;
3 (c) seize, in accordance with sections 164 and 172, any
4 article listed in section 164(2) that is found on or with
5 the person.
6 (3) However, a transport officer can only enter premises prescribed
7 by the regulations for this subsection.
8 Division 2 -- Search and seizure powers
9 160. Term used: approved form
10 In this Division --
11 approved form means --
12 (a) a form approved by the Commissioner of Police under
13 section 169 for use by police officers under this
14 Division; or
15 (b) a form approved by the Chief Psychiatrist under
16 section 543(1) for use by other persons under this
17 Division.
18 161. Authorised persons
19 The regulations may authorise a person, or a person in a class of
20 person, (an authorised person) to exercise the powers under this
21 Division.
22 162. Search of person while detained or admitted
23 (1) This section applies --
24 (a) to any of these people --
25 (i) a patient who is admitted by a mental health
26 service;
27 (ii) a person who is detained under this Act at a
28 mental health service or other place to enable an
29 examination to be conducted by a psychiatrist;
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Search and seizure powers Division 2
s. 163
1 (iii) any other person who presents at a mental health
2 service for treatment;
3 and
4 (b) at these times --
5 (i) when the patient or other person is being
6 admitted by, or is being received into, the mental
7 health service or other place;
8 (ii) at any time while the patient or other person is
9 being provided with treatment or care at the
10 mental health service or other place.
11 (2) A police officer or authorised person who reasonably suspects
12 that there is on or with the patient or other person any article
13 listed in section 164(2) may --
14 (a) search, in accordance with sections 163 and 172, the
15 person and any article found on or with the patient or
16 other person; and
17 (b) seize, in accordance with sections 164 and 172, any
18 article listed in section 164(2) that is found on or with
19 the patient or other person.
20 163. Conduct of search
21 (1) This section applies in relation to a search of a person --
22 (a) under section 159(2)(b) by a police officer, person
23 prescribed or transport officer; or
24 (b) under section 162(2)(a) by a police officer or authorised
25 person.
26 (2) Before the search is conducted, the person who will conduct the
27 search must, if reasonably practicable --
28 (a) identify himself or herself to the person; and
29 (b) inform the person of the reason for the search; and
30 (c) request the person to consent to being searched.
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1 (3) The person conducting the search must, if practicable, be a
2 person of the same gender as the person to be searched.
3 (4) The person conducting the search may do all or any of these
4 things --
5 (a) scan the person with an electronic or mechanical device,
6 whether hand held or not, to detect any thing;
7 (b) remove the person's headwear, gloves, footwear or outer
8 clothing (for example, a coat or jacket), but not the
9 person's inner clothing or underwear, in order to
10 facilitate a frisk search;
11 (c) frisk search the person by quickly and methodically
12 running the hands over the outside of the person's
13 clothing;
14 (d) search any article removed under paragraph (b).
15 (5) The person conducting the search may do all or any of these
16 things for the purpose of conducting the search --
17 (a) search anything being carried by or under the immediate
18 control of the person;
19 (b) order the person to remove anything that might injure
20 the person conducting the search from any article that
21 the person is wearing;
22 (c) photograph part or all of the search while it is being
23 done;
24 (d) order the person to do anything reasonable to facilitate
25 the exercise by the person conducting the search of any
26 power in this section.
27 (6) The search must be conducted as follows --
28 (a) the search must be done as quickly as is reasonably
29 practicable;
30 (b) the search must not be any more intrusive than is
31 reasonably necessary in the circumstances;
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1 (c) if the person conducting the search proposes to remove
2 any article that the person is wearing -- the person
3 conducting the search must tell the person why it is
4 considered necessary to do so;
5 (d) the person must be allowed to dress as soon as the
6 search is finished;
7 (e) the person must be provided with a reasonably adequate
8 replacement for any article of clothing or footwear
9 seized if, due to the seizure, the person is left without
10 adequate clothing or footwear in the circumstances.
11 164. Seizure of articles
12 (1) This section applies in relation to the seizure from a person of
13 an article under section 159(2)(c) or 162(2)(b).
14 (2) Any of these articles may be seized --
15 (a) an intoxicant;
16 (b) an article, including a drug that is prescribed for the
17 person, that may pose a serious risk to the health or
18 safety of the person or another person;
19 (c) an article that the person conducting the search believes
20 is likely to materially assist in determining any question
21 in relation to the person that is likely to arise for
22 determination under this Act.
23 (3) Any article that is seized must be dealt with under section 166
24 or 167.
25 165. Record of search and seizure
26 (1) A person who conducts a search of a person under
27 section 159(2)(b) or 162(2)(a) must, as soon as practicable --
28 (a) record the search in accordance with subsection (2); and
29 (b) give the record of the search to, as the case requires --
30 (i) the person in charge of the mental health service
31 or other place to which the person searched is
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1 required to be taken under the apprehension and
2 return order or the transport order; or
3 (ii) the person in charge of the mental health service
4 or other place at which the person searched is
5 received, or the medical practitioner or
6 authorised mental health practitioner into whose
7 care the person is delivered, under
8 section 156(3)(b)(i) or (ii); or
9 (iii) the person searched if the person is released
10 without being taken to a mental health service or
11 other place or delivered into the care of a
12 medical practitioner or authorised mental health
13 practitioner; or
14 (iv) the person in charge of the mental health service
15 or other place where the search is conducted
16 under section 162(2)(a).
17 (2) The record of the search must be in the approved form and must
18 include the following --
19 (a) the date and time the search was conducted;
20 (b) the reasons for conducting the search;
21 (c) any article seized under section 159(2)(c) or 162(2)(b) in
22 the course of the search;
23 (d) the name, sex, qualifications and signature of the person
24 who conducted the search.
25 (3) The person to whom the record of the search is given under
26 subsection (1)(b)(i), (ii) or (iv) must ensure that, as soon as
27 practicable, the record is filed and a copy given to the person
28 searched.
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s. 166
1 166. Dealing with articles seized when person apprehended
2 (1) This section applies in relation to an article that is seized under
3 section 159(2)(c) from a person who is apprehended under
4 section 99(a), 149(1)(a) or 156(1).
5 (2) The article must be dealt with --
6 (a) under subsection (3)(a) or (b); or
7 (b) otherwise according to law.
8 (3) The article must be --
9 (a) given to, as the case requires --
10 (i) the person in charge of the mental health service
11 or other place referred to in section 165(1)(b)(i),
12 (ii) or (iv) when the person is received there; or
13 (ii) the medical practitioner or authorised mental
14 health practitioner referred to in
15 section 165(1)(b)(ii) when the person is delivered
16 into the practitioner's care;
17 or
18 (b) if the person is released without being taken to a mental
19 health service or other place or delivered into the care of
20 a medical practitioner or authorised mental health
21 practitioner -- returned to the person when the person is
22 released.
23 (4) A person who deals with an article under subsection (2)(a)
24 or (b) must, as soon as practicable --
25 (a) record in the approved form details of how the article
26 was dealt with; and
27 (b) give the record of those details to, as the case
28 requires --
29 (i) the person in charge of the mental health service
30 or other place referred to in section 165(1)(b)(i),
31 (ii) or (iv) when the person is received there; or
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Division 2 Search and seizure powers
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1 (ii) the medical practitioner or authorised mental
2 health practitioner referred to in
3 section 165(1)(b)(ii) when the person is delivered
4 into the practitioner's care; or
5 (iii) if the person is released without being taken to a
6 mental health service or other place or delivered
7 into the care of a medical practitioner or
8 authorised mental health practitioner -- the
9 person when the person is released.
10 (5) A person to whom a record is given under subsection (4)(b)(i)
11 or (ii) must ensure that the record is filed as soon as practicable.
12 167. Return of articles given to or seized by mental health service
13 (1) This section applies in relation to an article that is --
14 (a) seized from a patient or other person under
15 section 162(2)(b); or
16 (b) given to the person in charge of a mental health service
17 or other place under section 166(3)(a)(i).
18 (2) The article must be dealt with --
19 (a) under subsection (3), (4), (5) or (6); or
20 (b) otherwise according to law.
21 (3) The article must be returned to the person when the person is
22 released or discharged by or otherwise leaves the mental health
23 service or other place unless subsection (4) applies.
24 (4) If, in the opinion of the person in charge of the mental health
25 service or other place, the return of the article to the person may
26 pose a serious risk to the health or safety of the person or
27 another person, the article must be given to a carer, close family
28 member or other personal support person of the person when the
29 person is released or discharged by or otherwise leaves the
30 mental health service or other place unless the person in charge
31 considers that it is not appropriate to do so.
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1 (5) If the article is not dealt with under subsection (3) or (4) when
2 the person is released or discharged by or otherwise leaves the
3 mental health service or other place --
4 (a) the article may be returned to the person, or may be
5 given to a carer, close family member or other personal
6 support person of the person, at any time afterwards; and
7 (b) subsections (3) and (4) apply (with the necessary
8 changes) in relation to the article.
9 (6) If the article is not dealt with under subsection (3), (4) or (5),
10 it --
11 (a) must be stored at the mental health service or other
12 place; and
13 (b) may be destroyed or otherwise disposed of after
14 6 months.
15 (7) The person in charge of the mental health service or other place
16 must ensure that a record of how the article was dealt with
17 under this section is filed.
18 (8) The record must be in the approved form and must include these
19 things --
20 (a) details of the article;
21 (b) if the article was returned to the person -- the date when
22 it was returned;
23 (c) if the article was not returned to the person -- the
24 reasons for not returning it;
25 (d) if the article was given to a carer, close family member
26 or other personal support person -- the date when it was
27 given to that person;
28 (e) if the article was not given to a carer, close family
29 member or other personal support person -- the reasons
30 for not giving it to that person;
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1 (f) if the article was destroyed or otherwise disposed of
2 under subsection (6)(b) --
3 (i) the date when it was destroyed or disposed of;
4 and
5 (ii) the manner in which it was destroyed or disposed
6 of;
7 (g) if the article was dealt with under subsection (2)(b) --
8 any other relevant information.
9 168. Return of articles given to medical practitioner or
10 authorised mental health practitioner
11 (1) This section applies in relation to an article that is given to a
12 medical practitioner or authorised mental health practitioner
13 under section 166(3)(a)(ii) who decides not to refer under
14 section 26(2) or (3)(a) the person from whom the article was
15 seized.
16 (2) The medical practitioner or authorised mental health practitioner
17 must ensure that, as soon as practicable --
18 (a) the article is returned to the person or otherwise dealt
19 with according to law; and
20 (b) a record of how the article was dealt with under
21 paragraph (a) is filed and a copy given to the person.
22 169. Approval of forms for use by police officers under this
23 Division
24 The Commissioner of Police may approve forms for use by
25 police officers under this Division.
26 Note for section 169:
27 The Chief Psychiatrist approves forms for use by other persons under this
28 Division (see section 543(1)).
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Exercise of certain powers Part 12
Detention powers Division 1
s. 170
1 Part 12 -- Exercise of certain powers
2 Division 1 -- Detention powers
3 170. Principles relating to detention
4 These principles apply in relation to the detention of a person
5 under this Act --
6 (a) the person must be detained for as brief a period as
7 practicable;
8 (b) the degree of any force used to detain the person must
9 be the minimum that is required to be used for that
10 purpose;
11 (c) while the person is detained --
12 (i) there must be the least possible restriction on the
13 person's freedom of choice and movement
14 consistent with the person's detention; and
15 (ii) the person is entitled to reasonable privacy
16 consistent with the person's detention; and
17 (iii) the person must be treated with dignity and
18 respect.
19 Division 2 -- Ancillary powers: reasonable assistance and force
20 and directions
21 171. Term used: prescribed provision
22 In this Division --
23 prescribed provision means a provision listed in the Table.
24 Table
s. 83(2)(c) s. 86(c)
s. 99 s. 130(3)
s. 149(1) Part 11
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Division 2 Ancillary powers: reasonable assistance and force and
directions
s. 172
s. 225
1 172. Reasonable assistance and reasonable force authorised
2 (1) A person exercising a power under a prescribed provision may
3 request another person to give the person reasonable assistance
4 in exercising that power.
5 (2) A person exercising, or assisting in accordance with a request
6 under subsection (1) another person in exercising, a power
7 under a prescribed provision may use reasonable force in doing
8 so.
9 173. Duty to obey directions
10 A person assisting a person in exercising a power under a
11 prescribed provision must obey any lawful and reasonable
12 direction of that person.
13 Penalty: a fine of $6 000.
14 174. Other written laws not affected
15 A prescribed provision does not affect any other written law
16 relating to the apprehension or search of a person or to the
17 seizure of an article from a person.
18 Note for Division 2:
19 It is an offence to obstruct or hinder a person exercising, or assisting another
20 person to exercise, a power under a prescribed provision (see section 578).
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Provision of treatment generally Part 13
Voluntary patients Division 1
s. 175
1 Part 13 -- Provision of treatment generally
2 Division 1 -- Voluntary patients
3 175. Informed consent necessary
4 (1) A voluntary patient cannot be provided with treatment without
5 informed consent being given to the provision of the treatment.
6 (2) Subsection (1) does not apply in relation to any of these
7 treatments because this Act makes specific provision in respect
8 of each of them --
9 (a) electroconvulsive therapy;
10 (b) emergency psychiatric treatment;
11 (c) psychosurgery;
12 (d) treatment that is prohibited by section 210(1).
13 176. Informed consent must be filed
14 (1) The person responsible under subsection (2) must ensure that
15 any informed consent given to the provision of treatment to a
16 voluntary patient is filed.
17 (2) For subsection (1), the person responsible is --
18 (a) if the treatment is provided at a mental health service --
19 the person in charge of the mental health service; or
20 (b) if the treatment is provided at a place other than a
21 mental health service -- the medical practitioner or
22 mental health practitioner providing the treatment.
23 (3) The record of the informed consent must include --
24 (a) the date when the informed consent was given; and
25 (b) whether the informed consent was given --
26 (i) by the patient himself or herself; or
27 (ii) by a person authorised by law to give the
28 informed consent on the patient's behalf;
29 and
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1 (c) if paragraph (b)(ii) applies --
2 (i) the name and contact details of the person who
3 gave the informed consent; and
4 (ii) details of the person's authority to do so.
5 Notes for section 176:
6 1. For section 176(3)(b)(i), an adult can give consent by making an
7 advance health directive (see the GAA Act section 110ZJ(2)).
8 2. For section 176(3)(b)(ii) --
9 (a) an adult's enduring guardian or guardian or the person
10 responsible for an adult can give consent on the adult's behalf
11 (see the GAA Act section 110ZJ(3) to (5)); or
12 (b) a child's parent or guardian can give consent on the child's behalf
13 (see section 302(3) of this Act).
14 Division 2 -- Involuntary patients and mentally
15 impaired accused
16 177. Application of this Division
17 This Division applies in relation to --
18 (a) an involuntary patient; or
19 (b) a patient who is a mentally impaired accused required
20 under the MIA Act to be detained at an authorised
21 hospital.
22 178. Informed consent not necessary
23 (1) The patient can be provided with treatment without informed
24 consent being given to the provision of the treatment.
25 (2) Subsection (1) does not apply in relation to any of these
26 treatments because this Act makes specific provision in respect
27 of each of them --
28 (a) electroconvulsive therapy;
29 (b) emergency psychiatric treatment;
30 (c) psychosurgery;
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1 (d) treatment that is prohibited by section 210(1).
2 179. Patient's psychiatrist must ensure regard had to patient's
3 wishes
4 (1) The patient's psychiatrist must ensure that a medical
5 practitioner, in deciding what treatment will be provided to the
6 patient, has regard to the patient's wishes in relation to the
7 provision of treatment, to the extent that it is practicable to
8 ascertain those wishes.
9 (2) The patient's psychiatrist must ensure that a record of the
10 following is filed --
11 (a) the patient's wishes, to the extent they were able to be
12 ascertained by the medical practitioner; and
13 (b) the things to which the medical practitioner had regard
14 in ascertaining the patient's wishes; and
15 (c) if the decision made by the medical practitioner is
16 inconsistent with a treatment decision in an advance
17 health directive, or a term of an enduring power of
18 guardianship, made by the patient -- the reasons the
19 decision was made.
20 (3) The patient's psychiatrist must ensure that, as soon as
21 practicable, each of these people is given a copy of the reasons
22 referred to in subsection (2)(c) --
23 (a) the patient;
24 (b) if the patient has an enduring guardian or guardian --
25 the enduring guardian or guardian;
26 (c) if the patient has a nominated person -- the nominated
27 person unless the nominated person is not entitled, for
28 the reason referred to in section 269(1), to be given a
29 copy;
30 (d) if the patient has a carer -- the carer unless the carer is
31 not entitled, for the reason referred to in section 288(2)
32 or 292(1), to be given a copy;
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s. 180
1 (e) if the patient has a close family member -- the close
2 family member unless the close family member is not
3 entitled, for the reason referred to in section 288(2)
4 or 292(1), to be given a copy;
5 (f) the Chief Psychiatrist;
6 (g) the Chief Mental Health Advocate.
7 (4) The patient's psychiatrist is not required to comply with
8 subsection (3) in relation to a decision made by a medical
9 practitioner if each of the people referred to in subsection (2)(c)
10 has been given a copy of the reasons for an earlier decision
11 made by a medical practitioner that was inconsistent with the
12 same treatment decision in the advance health directive or the
13 same term in the enduring power of guardianship.
14 Notes for section 179:
15 1. For the purpose of a medical practitioner ascertaining the patient's
16 wishes, Part 2 Division 4 applies.
17 2. In deciding what treatment will be provided to the patient, a medical
18 practitioner must also have regard to --
19 (a) if the patient is a child, the views of the child's parent or
20 guardian (see section 301); and
21 (b) if the patient has a nominated person, except in certain
22 circumstances, the views of the nominated person (see Part 16
23 Division 3 Subdivision 1); and
24 (c) if the patient has a carer or close family member, except in
25 certain circumstances, the views of the carer or close family
26 member (see Part 17 Division 2).
27 180. Requirements for ascertaining patient's wishes
28 (1) The patient's psychiatrist must ensure that, before a patient's
29 wishes in relation to the provision of treatment are sought to be
30 ascertained, the patient is (to the extent that it is practicable to
31 do so) to be --
32 (a) provided with the same explanation of the treatment;
33 and
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s. 181
1 (b) given the same amount of time for consideration of the
2 matters involved in the provision of the treatment; and
3 (c) given the same opportunities to discuss and obtain
4 advice or assistance in relation to the provision of the
5 treatment,
6 as would be required to be provided or given to a person before
7 being asked to make a treatment decision about the provision of
8 the treatment.
9 (2) For the purpose of subsection (1), sections 19 and 20 apply
10 (with the necessary changes) in relation to ascertaining the
11 patient's wishes in relation to the provision of the treatment.
12 Note for section 180:
13 Any explanation provided under section 180(1)(a) must be provided in
14 accordance with section 9(2).
15 181. Record of treatment to be filed
16 The patient's psychiatrist must ensure that a record of the
17 treatment provided to the patient is filed.
18 182. Further opinion may be requested
19 (1) This section applies in relation to any of these people --
20 (a) the patient, whether or not the patient has the capacity to
21 give informed consent to the treatment being provided to
22 him or her were that consent required;
23 (b) if the patient does not have that capacity -- the person
24 who is authorised by law to give that consent on the
25 patient's behalf were that consent required;
26 (c) if the patient has a nominated person -- the nominated
27 person;
28 (d) if the person has a carer -- the carer;
29 (e) if the person has a close family member -- the close
30 family member.
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1 (2) A person to whom this section applies who is dissatisfied with
2 the treatment being provided to the patient may request orally or
3 in writing the patient's psychiatrist or the Chief Psychiatrist to
4 obtain the opinion (a further opinion) of a psychiatrist who is
5 not the patient's psychiatrist about whether it is appropriate to
6 provide the treatment to the patient.
7 (3) The patient's psychiatrist or the Chief Psychiatrist must file a
8 record of an oral request or a written request.
9 (4) The patient's psychiatrist or the Chief Psychiatrist must obtain
10 the further opinion as soon as practicable after receiving the
11 request unless --
12 (a) if a person referred to in subsection (1)(b) to (e) requests
13 the further opinion -- the patient objects to the further
14 opinion being obtained; or
15 (b) under section 183 --
16 (i) the patient's psychiatrist or the Chief Psychiatrist
17 decides not to comply with the request; and
18 (ii) if the patient's psychiatrist decides not to comply
19 with the request -- the Chief Psychiatrist
20 confirms that decision.
21 (5) In obtaining the further opinion, the patient's psychiatrist or the
22 Chief Psychiatrist must have regard to the guidelines published
23 under section 545(1)(c) about the independence of psychiatrists
24 from whom further opinions are obtained.
25 (6) A psychiatrist cannot give a further opinion without examining
26 the patient in accordance with Part 6 Division 3 Subdivision 6.
27 (7) The further opinion must be given in writing and may include
28 recommendations about the provision of treatment to the
29 patient.
30 (8) The patient's psychiatrist must, as soon as practicable after
31 obtaining the further opinion --
32 (a) file the opinion and give a copy to the patient; and
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Provision of treatment generally Part 13
Involuntary patients and mentally impaired accused Division 2
s. 183
1 (b) if the opinion was requested by a person other than the
2 patient -- give a copy to that other person.
3 (9) The Chief Psychiatrist must, as soon as practicable after
4 obtaining the further opinion, give a copy to each of these
5 people --
6 (a) the patient's psychiatrist, who must file the copy as soon
7 as practicable;
8 (b) the patient;
9 (c) if the opinion was requested by a person other than the
10 patient -- that other person.
11 (10) In providing treatment to the patient, the patient's psychiatrist
12 must have regard to any further opinion relating to the provision
13 of that treatment that is obtained under this section, including
14 any recommendations included in the opinion under
15 subsection (7).
16 183. Request for additional opinion may be refused
17 (1) This section applies if --
18 (a) a further opinion about the treatment being provided to a
19 patient has been obtained under section 182; and
20 (b) a person in relation to whom that provision applies
21 requests that the patient's psychiatrist or the Chief
22 Psychiatrist obtain an additional opinion under that
23 provision about the treatment being provided to the
24 patient.
25 (2) The patient's psychiatrist or the Chief Psychiatrist may refuse to
26 comply with the request if satisfied that, having regard to the
27 guidelines published under section 545(1)(d) for that purpose,
28 the additional opinion is not warranted.
29 (3) The patient's psychiatrist must, as soon as practicable after
30 deciding under subsection (2) not to comply with the request --
31 (a) file a record of the decision and the reasons for it; and
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Part 13 Provision of treatment generally
Division 2 Involuntary patients and mentally impaired accused
s. 183
1 (b) give a copy to each of these people --
2 (i) the patient;
3 (ii) if the additional opinion was requested by a
4 person other than the patient -- that other
5 person;
6 (iii) the Chief Psychiatrist.
7 (4) The Chief Psychiatrist must, as soon as practicable after
8 receiving a copy of the record from the patient's psychiatrist --
9 (a) confirm or refuse to confirm the decision of the patient's
10 psychiatrist; and
11 (b) record the confirmation or refusal and the reasons for it;
12 and
13 (c) give a copy of the record to each of these people --
14 (i) the patient;
15 (ii) if the additional opinion was requested by a
16 person other than the patient -- that other
17 person;
18 (iii) the patient's psychiatrist, who must file the copy
19 as soon as practicable.
20 (5) The Chief Psychiatrist must, as soon as practicable after
21 deciding under subsection (2) not to comply with the request --
22 (a) file a record of the decision and the reasons for it; and
23 (b) give a copy of the record to each of these people --
24 (i) the patient;
25 (ii) if the additional opinion was requested by a
26 person other than the patient -- that other
27 person;
28 (iii) the patient's psychiatrist, who must file the copy
29 as soon as practicable.
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Mental Health Bill 2013
Provision of treatment generally Part 13
Treatment, support and discharge planning Division 3
s. 184
1 184. Chief Psychiatrist may request reconsideration of treatment
2 (1) This section applies if, after any further opinion in relation to a
3 patient is obtained under section 182, the person who requested
4 that it be obtained remains dissatisfied with the treatment being
5 provided to the patient and advises the Chief Psychiatrist orally
6 or in writing of that dissatisfaction.
7 (2) The Chief Psychiatrist must file a record of an oral advice or a
8 written advice.
9 (3) The Chief Psychiatrist may request the patient's psychiatrist
10 to --
11 (a) reconsider the decision to provide the treatment; and
12 (b) give the Chief Psychiatrist a written report about the
13 outcome of the reconsideration and the reasons for it.
14 (4) The patient's psychiatrist must, as soon as practicable --
15 (a) give the report to the Chief Psychiatrist and file a copy;
16 and
17 (b) give a copy to each of these people --
18 (i) the patient;
19 (ii) if the further opinion was requested by a person
20 other than the patient -- that other person.
21 (5) Subsection (1) does not limit the powers of the Chief
22 Psychiatrist under section 518.
23 Division 3 -- Treatment, support and discharge planning
24 185. Application of this Division
25 This Division applies in relation to --
26 (a) a patient who is admitted by a hospital as an involuntary
27 patient whose detention at the hospital is authorised
28 under an inpatient treatment order; or
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Part 13 Provision of treatment generally
Division 3 Treatment, support and discharge planning
s. 186
1 (b) a patient who is admitted by an authorised hospital as a
2 mentally impaired accused required under the MIA Act
3 to be detained at the hospital; or
4 (c) a patient who is under a community treatment order.
5 186. Treatment, support and discharge plan
6 (1) The treatment, care and support provided to a patient must be
7 governed by a treatment, support and discharge plan.
8 (2) The treatment, support and discharge plan for a patient referred
9 to in section 185(a) or (b) must outline --
10 (a) the treatment and support that will be provided to the
11 patient while admitted by the authorised hospital; and
12 (b) the treatment and support that will be offered to the
13 patient after the patient is discharged by the hospital.
14 (3) The treatment, support and discharge plan for a patient referred
15 to in section 185(c) must outline --
16 (a) the treatment and support that will be provided to the
17 patient under the community treatment order as set out
18 in that order; and
19 (b) the treatment and support that will be offered to the
20 patient when the patient is no longer under the
21 community treatment order.
22 187. Preparation and review of plan
23 (1) A patient's psychiatrist must ensure that a treatment, support
24 and discharge plan for the patient --
25 (a) is prepared as soon as practicable after the patient is
26 admitted by the hospital or the community treatment
27 order is made; and
28 (b) is reviewed regularly; and
29 (c) is revised as necessary.
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Provision of treatment generally Part 13
Treatment, support and discharge planning Division 3
s. 187
1 (2) The plan must be prepared, reviewed and revised having regard
2 to the guidelines published under section 545(1)(e) for that
3 purpose.
4 (3) The patient's psychiatrist must ensure that --
5 (a) the plan (as prepared and as revised) is filed; and
6 (b) a copy of the plan (as prepared and as revised) is given
7 to each of these people --
8 (i) the patient;
9 (ii) the person referred to in section 188(1)(b);
10 (iii) if the patient is a child -- the child's parent or
11 guardian;
12 (iv) if the patient has a nominated person -- the
13 nominated person unless the nominated person is
14 not entitled, for the reason referred to in
15 section 269(1), to be given a copy;
16 (v) if the patient has a carer -- the carer unless the
17 carer is not entitled, for the reason referred to in
18 section 288(2) or 292(1), to be given a copy;
19 (vi) if the patient has a close family member -- the
20 close family member unless the close family
21 member is not entitled, for the reason referred to
22 in section 288(2) or 292(1), to be given a copy.
23 (4) The patient's psychiatrist may also ensure that a copy of the
24 plan (as prepared or as revised) is given to any other person or
25 body that the psychiatrist considers appropriate.
26 Note for section 187:
27 For section 187(4), the patient's psychiatrist may for example consider it
28 appropriate to give a copy of the plan to a community mental health service.
page 141
Mental Health Bill 2013
Part 13 Provision of treatment generally
Division 3 Treatment, support and discharge planning
s. 188
1 188. Involvement in preparation and review of plan
2 (1) A patient's psychiatrist must ensure that each of these people is
3 involved in the preparation and review of the treatment, support
4 and discharge plan for the patient --
5 (a) the patient --
6 (i) whether or not the patient has the capacity to
7 consent to the plan being implemented in relation
8 to himself or herself; and
9 (ii) whether or not the plan can be implemented
10 without the patient's consent;
11 (b) if the patient does not have the capacity referred to in
12 paragraph (a)(i) --
13 (i) if the plan cannot be implemented without the
14 patient's consent -- the person who is authorised
15 by law to consent on the patient's behalf; or
16 (ii) if the plan can be implemented without the
17 patient's consent -- the person who would be
18 authorised by law to consent on the patient's
19 behalf if the plan could not have been
20 implemented without consent;
21 (c) if the patient is a child -- the child's parent or guardian;
22 (d) if the patient has a nominated person -- the nominated
23 person unless the nominated person is not entitled under
24 section 269 to be involved;
25 (e) if the patient has a carer -- the carer unless the carer is
26 not entitled under section 288(2) or 292(1) to be
27 involved;
28 (f) if the patient has a close family member -- the close
29 family member unless the close family member is not
30 entitled under section 288(2) or 292(1) to be involved.
31 (2) Without limiting a requirement under subsection (1)(b) to
32 involve the person who is or would be required by law to
33 consent on the patient's behalf, or under subsection (1)(c) to
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Provision of treatment generally Part 13
Treatment, support and discharge planning Division 3
s. 188
1 involve the child's parent or guardian, in the preparation or
2 review of the treatment, support and discharge plan, the
3 requirement is taken to be complied with if the patient's
4 psychiatrist ensures that reasonable efforts continue to be made
5 to involve the person in the preparation or review of the
6 treatment, support and discharge plan until the first of these
7 things occurs --
8 (a) the person is involved in that preparation or review;
9 (b) it is reasonable for the patient's psychiatrist to conclude
10 that the person cannot be involved in that preparation or
11 review.
12 (3) Part 16 Division 3 Subdivision 2 applies in relation to a
13 requirement under subsection (1)(d) to involve the patient's
14 nominated person in the preparation or review of the treatment,
15 support and discharge plan.
16 (4) Part 17 Division 2 applies in relation to a requirement under
17 subsection (1)(e) to consult a carer of the involuntary inpatient,
18 or under subsection (1)(f) to consult a close family member of
19 the patient, in the preparation or review of the treatment,
20 support and discharge plan.
21 (5) The patient's psychiatrist may also ensure that any other person
22 or body that the psychiatrist considers appropriate is involved in
23 the preparation or review of the treatment, support and
24 discharge plan for the patient.
25 (6) The patient's psychiatrist must ensure that each of the following
26 is filed --
27 (a) a record of the involvement of any person referred to in
28 subsection (1)(b) to (f), or any person or body referred
29 to in subsection (5), in the preparation or review of the
30 treatment, support and discharge plan;
31 (b) if a person referred to in subsection (1)(b) to (f) could
32 not be involved in the preparation or review of the
33 treatment, support and discharge plan -- a record of the
34 efforts made to do so.
page 143
Mental Health Bill 2013
Part 13 Provision of treatment generally
Division 4 Provision of treatment to patients of Aboriginal or Torres Strait
Islander descent
s. 189
1 Note for section 188:
2 For section 188(5), the patient's psychiatrist may for example consider it
3 appropriate to involve a community mental health service.
4 Division 4 -- Provision of treatment to patients of Aboriginal or
5 Torres Strait Islander descent
6 189. Provision of treatment to patient of Aboriginal or Torres
7 Strait Islander descent
8 To the extent that it is practicable and appropriate to do so,
9 treatment provided to a patient who is of Aboriginal or Torres
10 Strait Islander descent must be provided in collaboration
11 with --
12 (a) Aboriginal or Torres Strait Islander mental health
13 workers; and
14 (b) significant members of the patient's community,
15 including elders and traditional healers.
16 Division 5 -- Compliance with standards and guidelines
17 190. Mental health service must comply with standards
18 The person in charge of a mental health service must ensure that
19 any standards published under section 545(2) applicable to the
20 mental health service are complied with.
21 191. Mental health service must take guidelines into account
22 The person in charge of a mental health service must ensure
23 that, in the provision by the mental health service of treatment
24 and care to persons who have a mental illness, regard is had to
25 any guidelines published under section 545(1) or (3) applicable
26 to that treatment and care.
page 144
Mental Health Bill 2013
Regulation of certain kinds of treatment and other interventions Part 14
Electroconvulsive therapy Division 1
s. 192
1 Part 14 -- Regulation of certain kinds of treatment
2 and other interventions
3 Division 1 -- Electroconvulsive therapy
4 192. Electroconvulsive therapy (ECT): meaning
5 Electroconvulsive therapy is treatment involving the application
6 of electric current to specific areas of a person's head to produce
7 a generalised seizure that is modified by general anaesthesia and
8 the administration of a muscle relaxing agent.
9 193. ECT offence
10 A person must not perform electroconvulsive therapy on
11 another person except in accordance with sections 194 to 199.
12 Penalty: a fine of $15 000 and imprisonment for 2 years.
13 194. ECT on child under 14 years prohibited
14 A person cannot perform electroconvulsive therapy on a child
15 under 14 years of age.
16 195. ECT on child over 14 years who is voluntary patient
17 (1) This section applies in relation to a child who has reached
18 14 years of age but is under 18 years of age and is a voluntary
19 patient.
20 (2) A medical practitioner can perform electroconvulsive therapy
21 on the child if --
22 (a) informed consent is given to the electroconvulsive
23 therapy being performed; and
24 (b) the Mental Health Tribunal approves under Part 21
25 Division 6 the electroconvulsive therapy being
26 performed; and
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Mental Health Bill 2013
Part 14 Regulation of certain kinds of treatment and other interventions
Division 1 Electroconvulsive therapy
s. 196
1 (c) in performing the electroconvulsive therapy, the medical
2 practitioner has regard to the guidelines published under
3 section 545(1)(f) for that purpose.
4 Note for section 195:
5 For section 195(2)(a), the child or the child's parent or guardian can give
6 informed consent (see sections 14 and 15).
7 196. ECT on child over 14 years who is involuntary patient or
8 mentally impaired accused
9 (1) This section applies in relation to a child who has reached
10 14 years of age but is under 18 years of age and is --
11 (a) an involuntary patient; or
12 (b) a patient who is a mentally impaired accused required
13 under the MIA Act to be detained at an authorised
14 hospital.
15 (2) A medical practitioner can perform electroconvulsive therapy
16 on the child if --
17 (a) the Mental Health Tribunal approves under Part 21
18 Division 6 the electroconvulsive therapy being
19 performed; and
20 (b) in performing the electroconvulsive therapy, the medical
21 practitioner has regard to the guidelines published under
22 section 545(1)(f) for that purpose.
23 197. ECT on adult voluntary patient
24 (1) This section applies in relation to an adult who is a voluntary
25 patient.
26 (2) A medical practitioner can perform electroconvulsive therapy
27 on the patient if --
28 (a) informed consent is given to the electroconvulsive
29 therapy being performed; and
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Mental Health Bill 2013
Regulation of certain kinds of treatment and other interventions Part 14
Electroconvulsive therapy Division 1
s. 198
1 (b) the electroconvulsive therapy is performed at a mental
2 health service approved under section 542 for that
3 purpose; and
4 (c) in performing the electroconvulsive therapy, the medical
5 practitioner has regard to the guidelines published under
6 section 545(1)(f) for that purpose.
7 Notes for section 197:
8 1. For section 197(2)(a), an adult can give informed consent in an
9 advance health directive (see the GAA Act section 110ZJ(2)) or an
10 adult's enduring guardian or guardian or the person responsible for the
11 adult can give informed consent on the adult's behalf (see the GAA Act
12 section 110ZJ(3) to (5)).
13 2. The GAA Act sections 110ZI and 110ZIA do not apply in relation to the
14 performance of ECT on an adult who is a voluntary patient.
15 198. ECT on adult involuntary patient or mentally impaired
16 accused
17 (1) This section applies in relation to an adult who is --
18 (a) an involuntary patient; or
19 (b) a patient who is a mentally impaired accused required
20 under the MIA Act to be detained at an authorised
21 hospital.
22 (2) A medical practitioner can perform electroconvulsive therapy
23 on the patient if --
24 (a) the Mental Health Tribunal approves under Part 21
25 Division 6 the electroconvulsive therapy being
26 performed; and
27 (b) in performing the electroconvulsive therapy, the medical
28 practitioner has regard to the guidelines published under
29 section 545(1)(f) for that purpose.
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Mental Health Bill 2013
Part 14 Regulation of certain kinds of treatment and other interventions
Division 1 Electroconvulsive therapy
s. 199
1 199. Emergency ECT on adult involuntary patient or mentally
2 impaired accused
3 (1) This section applies in relation to an adult who is --
4 (a) an involuntary patient; or
5 (b) a patient who is a mentally impaired accused required
6 under the MIA Act to be detained at an authorised
7 hospital.
8 (2) A medical practitioner can perform electroconvulsive therapy
9 on the patient if --
10 (a) the patient needs to be provided with electroconvulsive
11 therapy --
12 (i) to save the patient's life; or
13 (ii) because there is an imminent risk of the patient
14 behaving in a way that is likely to result in
15 serious physical injury to the patient or another
16 person;
17 and
18 (b) the electroconvulsive therapy is performed at a mental
19 health service approved under section 542 for that
20 purpose; and
21 (c) the Chief Psychiatrist approves the electroconvulsive
22 therapy being performed; and
23 (d) in performing the electroconvulsive therapy, the medical
24 practitioner has regard to the guidelines published under
25 section 545(1)(f) for that purpose.
26 (3) In approving the electroconvulsive therapy being performed, the
27 Chief Psychiatrist must have regard to the guidelines published
28 under section 545(1)(f) for that purpose.
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Mental Health Bill 2013
Regulation of certain kinds of treatment and other interventions Part 14
Electroconvulsive therapy Division 1
s. 200
1 200. Report to Mentally Impaired Accused Review Board
2 (1) This section applies in relation to a patient who is a mentally
3 impaired accused required under the MIA Act to be detained at
4 an authorised hospital.
5 (2) The patient's psychiatrist must report the performance of a
6 course of electroconvulsive therapy on the patient as soon as
7 practicable to the Mentally Impaired Accused Review Board.
8 (3) The report must be accompanied by a copy of the approval of
9 the Mental Health Tribunal or the Chief Psychiatrist, as the case
10 requires.
11 201. Statistics about ECT
12 (1) This section applies in relation to a mental health service where
13 electroconvulsive therapy is performed.
14 (2) In this section --
15 month means any of the 12 months of the year;
16 serious adverse event, in relation to a course of treatments with
17 electroconvulsive therapy, includes any of the following --
18 (a) premature consciousness during a treatment;
19 (b) anaesthetic complications (for example, cardiac
20 arrhythmia) during recovery from a treatment;
21 (c) an acute and persistent confused state during recovery
22 from a treatment;
23 (d) muscle tears or vertebral column damage;
24 (e) severe and persistent headaches;
25 (f) persistent memory deficit.
26 (3) The person in charge of the mental health service must, as soon
27 as practicable after the end of each month, report to the Chief
28 Psychiatrist on these matters --
29 (a) the number of people in respect of whom a course of
30 electroconvulsive therapy at the mental health service
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Part 14 Regulation of certain kinds of treatment and other interventions
Division 1 Electroconvulsive therapy
s. 201
1 was completed under subsection (4), or was
2 discontinued under subsection (5), during the month;
3 (b) the number of those people who were children;
4 (c) the number of those people who were voluntary patients;
5 (d) the number of those voluntary patients who were
6 children;
7 (e) the number of those people who were involuntary
8 patients;
9 (f) the number of those involuntary patients who were
10 children;
11 (g) the number of those people who were mentally impaired
12 accused required under the MIA Act to be detained at an
13 authorised hospital;
14 (h) the number of those mentally impaired accused who
15 were children;
16 (i) the number of treatments with electroconvulsive therapy
17 in each of those courses;
18 (j) the number of those courses that were courses of
19 emergency electroconvulsive therapy performed under
20 section 199;
21 (k) details of any serious adverse event that occurred, or is
22 suspected of having occurred, during or after any of
23 those courses.
24 (4) For the purposes of subsection (3)(a), a course of
25 electroconvulsive therapy is taken to have been completed
26 during a month if the last treatment in the course was performed
27 during the month, whether or not any of the other treatments in
28 the course were performed during the month.
29 (5) For the purposes of subsection (3)(a), a course of
30 electroconvulsive therapy is taken to have been discontinued
31 during a month if --
32 (a) one or more of the treatments in the course have been
33 performed, whether or not during the month; and
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Mental Health Bill 2013
Regulation of certain kinds of treatment and other interventions Part 14
Emergency psychiatric treatment Division 2
s. 202
1 (b) the decision not to perform any more of the treatments
2 in the course was made (for whatever reason) during the
3 month.
4 (6) The report must be in the approved form.
5 Division 2 -- Emergency psychiatric treatment
6 202. Emergency psychiatric treatment: meaning
7 (1) Emergency psychiatric treatment is treatment that needs to be
8 provided to a person --
9 (a) to save the person's life; or
10 (b) to prevent the person from behaving in a way that is
11 likely to result in serious physical injury to the person or
12 another person.
13 (2) Emergency psychiatric treatment does not include any of these
14 treatments --
15 (a) electroconvulsive therapy;
16 (b) psychosurgery;
17 (c) treatment that is prohibited by section 210(1).
18 203. Informed consent not required
19 A medical practitioner may provide a person with emergency
20 psychiatric treatment without informed consent being given to
21 the provision of the treatment.
22 Note for section 203:
23 The GAA Act sections 110ZI and 110ZIA do not apply in relation to
24 emergency psychiatric treatment.
page 151
Mental Health Bill 2013
Part 14 Regulation of certain kinds of treatment and other interventions
Division 3 Psychosurgery
s. 204
1 204. Record of emergency psychiatric treatment
2 (1) A medical practitioner who provides emergency psychiatric
3 treatment to a person must, as soon as practicable --
4 (a) file a record, in accordance with subsection (2), of the
5 provision of the emergency psychiatric treatment to the
6 person; and
7 (b) give a copy of the record to each of these people --
8 (i) the person;
9 (ii) the Chief Psychiatrist;
10 (iii) if the person is a mentally impaired accused --
11 the Mentally Impaired Accused Review Board.
12 (2) The record of the treatment provided must be in the approved
13 form and must include these things --
14 (a) the name of the person provided with the treatment;
15 (b) the name and qualifications of the practitioner who
16 provided the treatment;
17 (c) the names of any other people involved in providing the
18 treatment;
19 (d) the date, time and place the treatment was provided;
20 (e) particulars of the circumstances in which the treatment
21 was provided;
22 (f) particulars of the treatment provided.
23 Division 3 -- Psychosurgery
24 205. Psychosurgery: meaning
25 Psychosurgery is treatment involving --
26 (a) the use of a surgical technique or procedure or
27 intracerebral electrodes to create in a person's brain a
28 lesion intended (whether alone or in combination with
29 one or more other lesions created at the same or other
30 times) to alter permanently --
31 (i) the person's thoughts or emotions; or
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Mental Health Bill 2013
Regulation of certain kinds of treatment and other interventions Part 14
Psychosurgery Division 3
s. 206
1 (ii) the person's behaviour other than behaviour
2 secondary to a paroxysmal cerebral dysrhythmia;
3 or
4 (b) the use of intracerebral electrodes to stimulate a person's
5 brain without creating a lesion with the intention that the
6 stimulation (whether alone or in combination with other
7 such stimulation at the same or other times) will
8 influence or alter temporarily --
9 (i) the person's thoughts or emotions; or
10 (ii) the person's behaviour other than behaviour
11 secondary to a paroxysmal cerebral dysrhythmia.
12 206. Psychosurgery offence
13 A person must not perform psychosurgery on another person
14 except in accordance with sections 207 and 208.
15 Penalty: imprisonment for 5 years.
16 207. Psychosurgery on child under 16 years prohibited
17 A person cannot perform psychosurgery on a child under
18 16 years of age.
19 208. Psychosurgery on adult or child over 16 years old
20 (1) This section applies in relation to a patient who is --
21 (a) an adult; or
22 (b) a child who has reached 16 years of age but is under
23 18 years of age.
24 (2) A neurosurgeon can perform psychosurgery on the patient if --
25 (a) the patient gives informed consent to the psychosurgery
26 being performed on himself or herself; and
27 (b) the Mental Health Tribunal approves under Part 21
28 Division 7 the psychosurgery being performed.
page 153
Mental Health Bill 2013
Part 14 Regulation of certain kinds of treatment and other interventions
Division 4 Deep sleep and insulin coma therapy
s. 209
1 Notes for section 208:
2 1. For the purpose of section 208(2)(a), an adult patient can give
3 informed consent in an advance health directive (see the GAA Act
4 section 110ZJ(2)).
5 2. For the purpose of section 208(2)(a), a child can only give informed
6 consent if the child has the capacity to do so (see Part 5 Division 1).
7 209. Report to Chief Psychiatrist and Mentally Impaired
8 Accused Review Board
9 (1) A patient's psychiatrist must report the performance of
10 psychosurgery on the patient as soon as practicable to --
11 (a) the Chief Psychiatrist; and
12 (b) if the patient is a mentally impaired accused -- the
13 Mentally Impaired Accused Review Board.
14 (2) The report must be accompanied by a copy of the Mental Health
15 Tribunal's approval.
16 Division 4 -- Deep sleep and insulin coma therapy
17 210. Deep sleep and insulin coma therapy prohibited
18 (1) A person must not perform any of these things on another
19 person --
20 (a) deep sleep therapy;
21 (b) insulin coma therapy;
22 (c) insulin sub coma therapy.
23 Penalty: imprisonment for 5 years.
24 (2) An offence under subsection (1) is a crime.
25 Division 5 -- Seclusion
26 211. Terms used
27 In this Division --
28 oral authorisation means an authorisation given orally under
29 section 214(1);
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Mental Health Bill 2013
Regulation of certain kinds of treatment and other interventions Part 14
Seclusion Division 5
s. 212
1 seclusion order --
2 (a) means a seclusion order made under section 215(1); and
3 (b) includes a seclusion order as extended under
4 section 218(1).
5 212. Seclusion: meaning
6 Seclusion is the confinement of a person who is being provided
7 with treatment or care at an authorised hospital by leaving the
8 person at any time of the day or night alone in a room or area
9 from which it is not within the person's control to leave.
10 213. Seclusion must be authorised
11 A person must not keep another person in seclusion except in
12 accordance with an oral authorisation or a seclusion order.
13 Penalty: a fine of $6 000.
14 214. Giving oral authorisation
15 (1) A medical practitioner or mental health practitioner at an
16 authorised hospital or the person in charge of a ward at an
17 authorised hospital may orally authorise the seclusion of any of
18 these people --
19 (a) a person who is a patient admitted by the authorised
20 hospital;
21 (b) a person who is referred under section 26(2) or 36(2) for
22 an examination to be conducted by a psychiatrist at the
23 authorised hospital;
24 (c) a person who is under an order made under
25 section 55(1)(c) or 61(1)(c) to enable an examination to
26 be conducted by a psychiatrist at the authorised hospital.
27 (2) A person cannot give an oral authorisation in respect of a person
28 unless satisfied of the matters specified in section 216.
29 (3) A person giving an oral authorisation in respect of a person
30 must specify the room or area where the person can be secluded.
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1 (4) A person who gives an oral authorisation in respect of a person
2 must, as soon as practicable after the person is secluded under
3 the authorisation --
4 (a) record the oral authorisation in the approved form,
5 specifying the following --
6 (i) the date and time when it was given;
7 (ii) the room or area specified under subsection (3);
8 (iii) the reasons for giving it;
9 and
10 (b) file the record and give a copy to the person.
11 (5) A mental health practitioner or the person in charge of a ward
12 who gives an oral authorisation in respect of a person must, as
13 soon as practicable and, in any event, within sufficient time to
14 enable the person to be examined as required by section 222(4)
15 or 223(2), inform a medical practitioner as to whether --
16 (a) the person is secluded under the oral authorisation; or
17 (b) the person was secluded under the oral authorisation but
18 has since been released from seclusion.
19 (6) A mental health practitioner or the person in charge of a ward
20 who informs a medical practitioner under subsection (5) must,
21 as soon as practicable --
22 (a) record in the approved form --
23 (i) the medical practitioner's name and
24 qualifications; and
25 (ii) the date and time when the medical practitioner
26 was informed;
27 and
28 (b) file the record and give a copy to the person.
29 (7) If a seclusion order confirming the oral authorisation is not
30 made (either by the person who gave the oral authorisation or, if
31 that person is not reasonably available, another person who is
32 authorised to make a seclusion order) as soon as practicable and,
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1 in any event, within 2 hours after the time when the person is
2 secluded under the authorisation --
3 (a) the person cannot continue to be secluded and must be
4 released from seclusion; and
5 (b) the person who gave the oral authorisation or, if that
6 person is not reasonably available, another person who
7 is authorised to make a seclusion order must ensure that
8 the person is informed of that fact and released from
9 seclusion.
10 215. Making seclusion order
11 (1) A medical practitioner or mental health practitioner at an
12 authorised hospital or the person in charge of a ward at an
13 authorised hospital may make a seclusion order authorising the
14 seclusion of any of these people --
15 (a) a person who is a patient admitted by the authorised
16 hospital;
17 (b) a person who is referred under section 26(2) or 36(2) for
18 an examination to be conducted by a psychiatrist at the
19 authorised hospital;
20 (c) a person who is under an order made under
21 section 55(1)(c) or 61(1)(c) to enable an examination to
22 be conducted by a psychiatrist at the authorised hospital.
23 (2) A person cannot make a seclusion order in respect of a person
24 unless satisfied of the matters specified in section 216.
25 (3) A seclusion order must be in the approved form and must
26 include the following --
27 (a) the name and date of birth of the person being secluded
28 under the order;
29 (b) the date and time when the order is made;
30 (c) the date and time when any oral authorisation being
31 confirmed by the order was given;
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1 (d) the period for which the person can be secluded under
2 the order, which cannot exceed 2 hours including the
3 period for which the person was secluded under any oral
4 authorisation being confirmed by the order;
5 (e) the room or area where the person can be secluded;
6 (f) with reference to the criteria specified in section 216(1),
7 the reasons for authorising the seclusion;
8 (g) if a mental health practitioner or the person in charge of
9 a ward makes the order -- with reference to the criteria
10 specified in section 216(2), the reasons for the urgency;
11 (h) particulars of any observations made about the
12 person --
13 (i) if the order is confirming an oral authorisation --
14 when the person was secluded under the oral
15 authorisation; or
16 (ii) otherwise -- when the person is secluded under
17 the order;
18 (i) particulars of any directions given by a medical
19 practitioner or mental health practitioner about the
20 treatment and care to be provided to the person while
21 secluded;
22 (j) the name, qualifications and signature of the person
23 making the order.
24 (4) A mental health practitioner or the person in charge of a ward
25 who makes a seclusion order in respect of a person must, as
26 soon as practicable and, in any event, within sufficient time to
27 enable the person to be examined as required by section 222(4)
28 or 223(2), inform a medical practitioner as to whether --
29 (a) the person is secluded under the seclusion order; or
30 (b) the person was secluded under the seclusion order but
31 has since been released from seclusion.
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1 (5) A mental health practitioner or the person in charge of a ward
2 who informs a medical practitioner under subsection (4) must,
3 as soon as practicable --
4 (a) record in the approved form --
5 (i) the medical practitioner's name and
6 qualifications; and
7 (ii) the date and time when the medical practitioner
8 was informed;
9 and
10 (b) file the record and give a copy to the person.
11 (6) The person who makes a seclusion order in respect of a person
12 must, as soon as practicable after the person is secluded under
13 the order, file it and give a copy to the person.
14 216. Criteria for authorising seclusion
15 (1) A person cannot give an oral authorisation or make a seclusion
16 order in respect of a person unless satisfied of these things --
17 (a) the person needs to be secluded to prevent the person
18 from --
19 (i) physically injuring himself or herself or another
20 person; or
21 (ii) persistently causing serious damage to property;
22 and
23 (b) there is no less restrictive way of preventing the injury
24 or damage.
25 (2) A mental health practitioner or the person in charge of a ward
26 cannot give an oral authorisation or make a seclusion order in
27 respect of a person unless also satisfied that --
28 (a) the person needs to be secluded urgently; and
29 (b) a medical practitioner is not reasonably available to give
30 an oral authorisation or make a seclusion order in
31 respect of the person.
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1 217. Treating psychiatrist (if any) to be informed
2 (1) This section applies if --
3 (a) a person secluded under an oral authorisation or
4 seclusion order has a treating psychiatrist; and
5 (b) the treating psychiatrist did not give the oral
6 authorisation or make the seclusion order; and
7 (c) the medical practitioner informed under section 214(5)
8 or 215(4) of the person's seclusion is not the treating
9 psychiatrist.
10 (2) The person who gave the oral authorisation or made the
11 seclusion order must, as soon as practicable and, in any event,
12 within 2 hours after the time when the person is secluded under
13 the authorisation or order, inform the treating psychiatrist as to
14 whether --
15 (a) the person is secluded under the authorisation or order;
16 or
17 (b) the person was secluded under the authorisation or order
18 but has since been released from seclusion.
19 (3) A person who informs the treating psychiatrist under
20 subsection (2) must, as soon as practicable --
21 (a) record in the approved form --
22 (i) the treating psychiatrist's name and
23 qualifications; and
24 (ii) the date and time when the treating psychiatrist
25 was informed;
26 and
27 (b) file the record and give a copy to the person.
28 218. Extending seclusion order
29 (1) A medical practitioner may make an order extending a seclusion
30 order in force in respect of a person from the end of the period
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s. 219
1 of seclusion under the seclusion order for the further period (not
2 exceeding 2 hours) specified in the order.
3 (2) The medical practitioner cannot extend the seclusion order
4 unless, immediately before doing so, the medical practitioner
5 examines the person in accordance with section 222(4).
6 (3) The medical practitioner must, as soon as practicable, file the
7 order and give a copy to the person.
8 219. Revoking seclusion order
9 (1) A medical practitioner or mental health practitioner or the
10 person in charge of a ward at an authorised hospital may make
11 an order revoking a seclusion order in force in respect of a
12 person.
13 (2) The order must be in the approved form and must include the
14 following --
15 (a) the date and time when the seclusion order is revoked;
16 (b) the name, qualifications and signature of the person
17 making it.
18 (3) The person who makes the order must, as soon as practicable,
19 file it and give a copy to the person.
20 220. Release of person on revocation or expiry of seclusion order
21 A medical practitioner or mental health practitioner must, as
22 soon as practicable after the time when a person cannot continue
23 to be secluded under a seclusion order --
24 (a) inform the person of that fact; and
25 (b) ensure that the person is released from seclusion.
26 221. Record of seclusion order expiring
27 A medical practitioner or mental health practitioner must, as
28 soon as practicable after a seclusion order expires, file a record
29 in the approved form of the date and time of the expiry.
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1 222. Requirements relating to seclusion
2 (1) This section applies while a person is secluded under an oral
3 authorisation or a seclusion order.
4 (2) The person in charge of the ward where the person is secluded
5 must ensure that the requirements specified in this section, and
6 any other requirements prescribed by the regulations for this
7 section, are complied with.
8 (3) A mental health practitioner or a nurse must observe the person
9 every 15 minutes and, as soon as practicable, file a record in the
10 approved form of those observations and give a copy to the
11 person.
12 (4) A medical practitioner must examine the person at least every
13 2 hours and, as soon as practicable --
14 (a) record in the approved form these things --
15 (i) the medical practitioner's name and
16 qualifications;
17 (ii) the date and time of the examination;
18 (iii) the results of the examination, including whether
19 or not the medical practitioner considers that,
20 having regard to the criteria specified in
21 section 216(1), the person should continue to be
22 secluded;
23 and
24 (b) file the record and give a copy to the person.
25 (5) The person must be provided with these things --
26 (a) the bedding and clothing appropriate in the
27 circumstances;
28 (b) sufficient food and drink;
29 (c) access to toilet facilities;
30 (d) any other care appropriate to the person's needs.
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1 223. Examination of person released from seclusion
2 (1) This section applies whenever a person is released from
3 seclusion under an oral authorisation or a seclusion order.
4 (2) The person in charge of the ward where the person was secluded
5 must ensure --
6 (a) that the person is examined by a medical practitioner
7 within 6 hours after the time when the person is released
8 from the seclusion; or
9 (b) if the person is to be released or discharged by, or
10 against medical advice wants to leave, the authorised
11 hospital where the person was secluded before being
12 examined under paragraph (a) -- that the person is
13 offered an examination by a medical practitioner to be
14 conducted before the person is released, discharged or
15 leaves.
16 (3) A medical practitioner who examines a person for the purposes
17 of subsection (2) must, as soon as practicable --
18 (a) record in the approved form these things --
19 (i) the medical practitioner's name and
20 qualifications;
21 (ii) the date and time of the examination;
22 (iii) the results of the examination, including any
23 complication of or deterioration in the person's
24 mental or physical condition that is a result of, or
25 may be the result of, the person being secluded;
26 and
27 (b) file the record and give a copy to the person.
28 224. Report to Chief Psychiatrist and Mentally Impaired
29 Accused Review Board
30 (1) This section applies whenever a person is released from
31 seclusion under an oral authorisation or a seclusion order.
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1 (2) The treating psychiatrist or, if the person does not have a
2 treating psychiatrist, the person in charge of the authorised
3 hospital where the person was secluded must, as soon as
4 practicable, give the documents specified in subsection (3)
5 relating to the seclusion to --
6 (a) the Chief Psychiatrist; and
7 (b) if the person is a mentally impaired accused -- the
8 Mentally Impaired Accused Review Board.
9 (3) For subsection (2), these documents are specified --
10 (a) a copy of the record of the oral authorisation (if any)
11 made under section 214(4)(a);
12 (b) a copy of the seclusion order (if any) made under
13 section 215(1);
14 (c) a copy of any order extending the seclusion order made
15 under section 218(1);
16 (d) a copy of any order revoking the seclusion order made
17 under section 219(1) or any record of the expiry of the
18 seclusion order under section 221;
19 (e) a copy of each of the records made under
20 section 214(6)(a), 215(5)(a), 217(3)(a), 222(3) and
21 (4)(a) and 223(3)(a).
22 (4) The treating psychiatrist or person in charge must, as soon as
23 practicable, file a record of having complied with
24 subsection (2).
25 225. Reasonable assistance and force authorised
26 A person prescribed by the regulations for this section is
27 authorised to exercise the powers under section 172 for the
28 purpose of secluding a person under an oral authorisation or a
29 seclusion order.
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1 Division 6 -- Bodily restraint
2 226. Terms used
3 In this Division --
4 bodily restraint order --
5 (a) means a bodily restraint order made under
6 section 231(1); and
7 (b) includes a bodily restraint order as varied under
8 section 234(1) or (3);
9 oral authorisation means an authorisation given orally under
10 section 230(1).
11 227. Bodily restraint: meaning
12 (1) Bodily restraint is the physical or mechanical restraint of a
13 person who is being provided with treatment or care at an
14 authorised hospital.
15 (2) Physical restraint is the restraint of a person by the application
16 of bodily force to the person's body to restrict the person's
17 movement.
18 (3) Mechanical restraint is the restraint of a person by the
19 application of a device (for example, a belt, harness, manacle,
20 sheet or strap) to a person's body to restrict the person's
21 movement.
22 (4) Mechanical restraint does not include either of these forms of
23 restraint --
24 (a) the appropriate use of a medical or surgical appliance in
25 the treatment of a physical illness or injury;
26 (b) the appropriate use of furniture that restricts a person's
27 capacity to get off the furniture (for example, a bed
28 fitted with cot sides or a chair fitted with a table across
29 the arms).
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1 (5) Bodily restraint does not include --
2 (a) physical or mechanical restraint by a police officer
3 acting in the course of duty; or
4 (b) physical restraint by a person exercising a power under
5 section 172(2).
6 228. Principles relating to use of bodily restraint
7 These principles apply in relation to the use of bodily restraint
8 on a person under this Division --
9 (a) the degree of force used to restrain the person must be
10 the minimum that is required in the circumstances;
11 (b) while the person is restrained --
12 (i) there must be the least possible restriction on the
13 person's freedom of movement consistent with
14 the person's restraint; and
15 (ii) the person must be treated with dignity and
16 respect.
17 229. Bodily restraint must be authorised
18 A person must not use bodily restraint on another person except
19 in accordance with an oral authorisation or a bodily restraint
20 order.
21 Penalty: a fine of $6 000.
22 230. Giving oral authorisation
23 (1) A medical practitioner or mental health practitioner at an
24 authorised hospital or the person in charge of a ward at an
25 authorised hospital may orally authorise the bodily restraint of
26 any of these people --
27 (a) a person who is a patient admitted by the authorised
28 hospital;
29 (b) a person who is referred under section 26(2) or 36(2) for
30 an examination to be conducted by a psychiatrist at the
31 authorised hospital;
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1 (c) a person who is under an order made under
2 section 55(1)(c) or 61(1)(c) to enable an examination to
3 be conducted by a psychiatrist at the authorised hospital.
4 (2) A person cannot give an oral authorisation in respect of a person
5 unless satisfied of the matters specified in section 232.
6 (3) A person giving an oral authorisation in respect of a person
7 must specify --
8 (a) whether physical or mechanical restraint can be used to
9 restrain the person; and
10 (b) if mechanical restraint can be used --
11 (i) the device that can be used to restrain the person;
12 and
13 (ii) the way in which the device can be applied to the
14 person's body.
15 (4) A person who gives an oral authorisation in respect of a person
16 must, as soon as practicable after the person is restrained under
17 the authorisation --
18 (a) record the oral authorisation in the approved form,
19 specifying the following --
20 (i) the date and time when it was given;
21 (ii) the matters specified under subsection (3);
22 (iii) the reasons for giving it;
23 and
24 (b) file the record and give a copy to the person.
25 (5) A mental health practitioner or the person in charge of a ward
26 who gives an oral authorisation in respect of a person must, as
27 soon as practicable and, in any event, within sufficient time to
28 enable the person to be examined as required by section 238(4)
29 or 239(2)(a), inform a medical practitioner as to whether --
30 (a) the person is restrained under the oral authorisation; or
31 (b) the person was restrained under the oral authorisation
32 but has since been released from bodily restraint.
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1 (6) A mental health practitioner or the person in charge of a ward
2 who informs a medical practitioner under subsection (5) must,
3 as soon as practicable --
4 (a) record in the approved form --
5 (i) the medical practitioner's name and
6 qualifications; and
7 (ii) the date and time when the medical practitioner
8 was informed;
9 and
10 (b) file the record and give a copy to the person.
11 (7) If a bodily restraint order confirming the oral authorisation is
12 not made (either by the person who gave the oral authorisation
13 or, if that person is not reasonably available, another person
14 who is authorised to make a bodily restraint order) as soon as
15 practicable and, in any event, within 30 minutes after the time
16 when the person is restrained under the authorisation --
17 (a) the person cannot continue to be restrained and must be
18 released from bodily restraint; and
19 (b) the person who gave the oral authorisation or, if that
20 person is not reasonably available, another person who
21 is authorised to make a bodily restraint order must
22 ensure that the person is informed of that fact and
23 released from bodily restraint.
24 231. Making bodily restraint order
25 (1) A medical practitioner or mental health practitioner at an
26 authorised hospital or the person in charge of a ward at an
27 authorised hospital may make a bodily restraint order
28 authorising the bodily restraint of any of these people --
29 (a) a person who is a patient admitted by the authorised
30 hospital;
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1 (b) a person who is referred under section 26(2) or 36(2) for
2 an examination to be conducted by a psychiatrist at the
3 authorised hospital;
4 (c) a person who is under an order made under
5 section 55(1)(c) or 61(1)(c) to enable an examination to
6 be conducted by a psychiatrist at the authorised hospital.
7 (2) A person cannot make a bodily restraint order in respect of a
8 person unless satisfied of the matters specified in section 232.
9 (3) A bodily restraint order must be in the approved form and must
10 include the following --
11 (a) the name and date of birth of the person being restrained
12 under the order;
13 (b) the date and time when the order is made;
14 (c) the date and time when any oral authorisation being
15 confirmed by the order was given;
16 (d) the period for which the person can be restrained under
17 the order, which cannot exceed 30 minutes including the
18 period for which the person was restrained under any
19 oral authorisation being confirmed by the order;
20 (e) whether physical or mechanical restraint can be used to
21 restrain the person;
22 (f) if mechanical restraint can be used --
23 (i) the device that can be used to restrain the person;
24 and
25 (ii) the way in which the device can be applied to the
26 person's body;
27 (g) with reference to the criteria specified in
28 section 232(1) --
29 (i) the reasons for authorising the use of bodily
30 restraint on the person; and
31 (ii) if mechanical restraint is authorised -- the
32 reasons for authorising the use and application of
33 the device specified under paragraph (f);
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1 (h) if a mental health practitioner or the person in charge of
2 a ward makes the order -- with reference to the criteria
3 specified in section 232(2), the reasons for the urgency;
4 (i) particulars of any observations made about the
5 person --
6 (i) if the order is confirming an oral authorisation --
7 when the person was restrained under the oral
8 authorisation; or
9 (ii) otherwise -- when the person is restrained under
10 the order;
11 (j) particulars of any directions given by a medical
12 practitioner or mental health practitioner about the
13 treatment and care to be provided to the person while
14 restrained;
15 (k) the name, qualifications and signature of the person
16 making the order.
17 (4) A mental health practitioner or the person in charge of a ward
18 who makes a bodily restraint order in respect of a person must,
19 as soon as practicable and, in any event, within sufficient time
20 to enable the person to be examined as required by
21 section 238(4) or 239(2)(a), inform a medical practitioner as to
22 whether --
23 (a) the person is restrained under the bodily restraint order;
24 or
25 (b) the person was restrained under the bodily restraint
26 order but has since been released from bodily restraint.
27 (5) A mental health practitioner or the person in charge of a ward
28 who informs a medical practitioner under subsection (4) must,
29 as soon as practicable --
30 (a) record in the approved form --
31 (i) the medical practitioner's name and
32 qualifications; and
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1 (ii) the date and time when the medical practitioner
2 was informed;
3 and
4 (b) file the record and give a copy to the person.
5 (6) The person who makes a bodily restraint order in respect of a
6 person must, as soon as practicable after the person is restrained
7 under the order, file it and give a copy to the person.
8 232. Criteria for authorising bodily restraint
9 (1) A person cannot give an oral authorisation or make a bodily
10 restraint order in respect of a person unless satisfied of these
11 things --
12 (a) the person needs to be restrained to --
13 (i) provide the person with treatment; or
14 (ii) prevent the person from physically injuring
15 himself or herself or another person; or
16 (iii) prevent the person from persistently causing
17 serious damage to property;
18 and
19 (b) there is no less restrictive way of providing the
20 treatment or preventing the injury or damage; and
21 (c) the use of bodily restraint on the person is unlikely to
22 pose a significant risk to the person's physical health.
23 (2) A mental health practitioner or the person in charge of a ward
24 cannot give an oral authorisation or make a bodily restraint
25 order in respect of a person unless also satisfied that --
26 (a) the person needs to be restrained urgently; and
27 (b) a medical practitioner is not reasonably available to give
28 an oral authorisation or make a bodily restraint order in
29 respect of the person.
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1 233. Treating psychiatrist (if any) must be informed
2 (1) This section applies if --
3 (a) a person restrained under an oral authorisation or a
4 bodily restraint order has a treating psychiatrist; and
5 (b) the treating psychiatrist did not give the oral
6 authorisation or make the bodily restraint order; and
7 (c) the medical practitioner informed of the restraint under
8 section 230(5) or 231(4) is not the treating psychiatrist.
9 (2) The person who gave the oral authorisation or made the bodily
10 restraint order must, as soon as practicable and, in any event,
11 within 30 minutes after the time when the person is restrained
12 under the authorisation or order, inform the treating psychiatrist
13 as to whether --
14 (a) the person is restrained under the authorisation or order;
15 or
16 (b) the person was restrained under the authorisation or
17 order but has since been released from bodily restraint.
18 (3) A person who informs the treating psychiatrist under
19 subsection (2) must, as soon as practicable --
20 (a) record in the approved form --
21 (i) the treating psychiatrist's name and
22 qualifications; and
23 (ii) the date and time when the treating psychiatrist
24 was informed;
25 and
26 (b) file the record and give a copy to the person.
27 234. Varying bodily restraint order
28 (1) A medical practitioner may make an order extending a bodily
29 restraint order in force in respect of a person from the end of the
30 period of restraint under the bodily restraint order for the further
31 period (not exceeding 30 minutes) specified in the order.
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1 (2) A medical practitioner cannot extend a bodily restraint order
2 under subsection (1) unless, immediately before doing so, the
3 medical practitioner examines the person in accordance with
4 section 238(4).
5 (3) A medical practitioner or mental health practitioner may make
6 an order varying a bodily restraint order in force in respect of a
7 person by --
8 (a) shortening the bodily restraint order by the period
9 specified in the order; or
10 (b) varying the device that is authorised for use to restrict
11 the person's movement or the way in which the device is
12 authorised to be applied to the person's body.
13 (4) An order made under subsection (1) or (3) must be in the
14 approved form and must include the following --
15 (a) the date and time when it is made;
16 (b) the variation of the bodily restraint order;
17 (c) the reasons for the variation;
18 (d) the name, qualifications and signature of the practitioner
19 making it.
20 (5) A person who makes an order under subsection (1) or (3) must,
21 as soon as practicable, file it and give a copy to the person.
22 235. Revoking bodily restraint order
23 (1) A medical practitioner or mental health practitioner or the
24 person in charge of a ward at an authorised hospital may make
25 an order revoking a bodily restraint order in force in respect of a
26 person.
27 (2) The order must be in the approved form and must include the
28 following --
29 (a) the date and time when the bodily restraint order is
30 revoked;
31 (b) the name, qualifications and signature of the practitioner
32 making it.
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1 (3) The person who makes the order must, as soon as practicable,
2 file it and give a copy to the person.
3 236. Release of person on revocation or expiry of bodily restraint
4 order
5 A medical practitioner or mental health practitioner must, as
6 soon as practicable after the time when a person cannot continue
7 to be restrained under a bodily restraint order --
8 (a) inform the person of that fact; and
9 (b) ensure that the person is released from bodily restraint.
10 237. Record of bodily restraint order expiring
11 A medical practitioner or mental health practitioner must, as
12 soon as practicable after a bodily restraint order expires, file a
13 record in the approved form of the date and time of the expiry.
14 238. Requirements relating to bodily restraint
15 (1) This section applies while a person is restrained under an oral
16 authorisation or a bodily restraint order.
17 (2) The person in charge of the ward where the person is restrained
18 must ensure that the requirements specified in this section, and
19 any other requirements prescribed by the regulations for this
20 section, are complied with.
21 (3) A mental health practitioner or a nurse must be in physical
22 attendance on the person at all times and, as soon as practicable,
23 must file a record in the approved form of any observations he
24 or she makes about the person and give a copy to the person.
25 (4) A medical practitioner must examine the person at least every
26 30 minutes and, as soon as practicable --
27 (a) record in the approved form these things --
28 (i) the medical practitioner's name and
29 qualifications;
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Mental Health Bill 2013
Regulation of certain kinds of treatment and other interventions Part 14
Bodily restraint Division 6
s. 239
1 (ii) the date and time of the examination;
2 (iii) the results of the examination, including whether
3 or not the medical practitioner considers that,
4 having regard to the criteria specified in
5 section 232(1), the person should continue to be
6 restrained;
7 and
8 (b) file the record and give a copy to the person.
9 (5) If the person remains restrained for more than 6 hours, a
10 psychiatrist must review the use of bodily restraint on the
11 person and, as soon as practicable --
12 (a) record in the approved form --
13 (i) the psychiatrist's name and qualifications; and
14 (ii) the date, time and results of the review;
15 and
16 (b) file the record and give a copy to the person.
17 (6) The person must be provided with these things --
18 (a) the bedding and clothing appropriate in the
19 circumstances;
20 (b) sufficient food and drink;
21 (c) access to toilet facilities;
22 (d) any other care appropriate to the person's needs.
23 239. Examination of person when released
24 (1) This section applies whenever a person is released from bodily
25 restraint under an oral authorisation or a bodily restraint order.
26 (2) The person in charge of the ward where the person was
27 restrained must ensure --
28 (a) that the person is examined by a medical practitioner as
29 soon as practicable and, in any event, within 6 hours
page 175
Mental Health Bill 2013
Part 14 Regulation of certain kinds of treatment and other interventions
Division 6 Bodily restraint
s. 240
1 after the time when the person is released from the
2 bodily restraint; or
3 (b) if the person is to be released or discharged by, or
4 against medical advice wants to leave, the authorised
5 hospital where the person was restrained before being
6 examined under paragraph (a) -- that the person is
7 offered an examination by a medical practitioner to be
8 conducted before the person is released, discharged or
9 leaves.
10 (3) A medical practitioner who examines a person for the purposes
11 of subsection (2) must, as soon as practicable --
12 (a) record in the approved form these things --
13 (i) the medical practitioner's name and
14 qualifications;
15 (ii) the date and time of the examination;
16 (iii) the results of the examination, including any
17 complication of or deterioration in the person's
18 mental or physical condition that is a result of, or
19 may be the result of, the person being restrained;
20 and
21 (b) file the record and give a copy to the person.
22 240. Report to Chief Psychiatrist and Mentally Impaired
23 Accused Review Board
24 (1) This section applies whenever a person is released from restraint
25 under an oral authorisation or a bodily restraint order.
26 (2) The treating psychiatrist or, if the person does not have a
27 treating psychiatrist, the person in charge of the authorised
28 hospital where the person was restrained must, as soon as
29 practicable, give the documents specified in subsection (3)
30 relating to the restraint to --
31 (a) the Chief Psychiatrist; and
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Mental Health Bill 2013
Regulation of certain kinds of treatment and other interventions Part 14
Bodily restraint Division 6
s. 240
1 (b) if the person is a mentally impaired accused -- the
2 Mentally Impaired Accused Review Board.
3 (3) For subsection (2), these documents are specified --
4 (a) a copy of the record of the oral authorisation (if any)
5 made under section 230(4)(a);
6 (b) a copy of the bodily restraint order (if any) made under
7 section 231(1);
8 (c) a copy of any order varying the bodily restraint order
9 made under section 234(1) or (3);
10 (d) a copy of any order revoking the bodily restraint order
11 made under section 235(1) or any record of the expiry of
12 the bodily restraint order made under section 237;
13 (e) a copy of each of the records made under
14 section 230(6)(a), 231(5)(a), 233(3)(a), 238(3), (4)(a)
15 and (5)(a) and 239(3)(a).
16 (4) The treating psychiatrist or person in charge must, as soon as
17 practicable, file a record of having complied with
18 subsection (2).
page 177
Mental Health Bill 2013
Part 15 Health care of people in hospitals
Division 1 Examination to assess person's physical condition
s. 241
1 Part 15 -- Health care of people in hospitals
2 Division 1 -- Examination to assess person's physical condition
3 241. Physical examination on arrival at hospital
4 (1) This section applies when --
5 (a) a person is admitted --
6 (i) by a hospital as a voluntary inpatient; or
7 (ii) by a hospital as an involuntary patient whose
8 detention at the hospital is authorised under an
9 inpatient treatment order; or
10 (iii) by an authorised hospital as a mentally impaired
11 accused required under the MIA Act to be
12 detained at the authorised hospital;
13 or
14 (b) a person is received into an authorised hospital under
15 section 52(1)(a) or 70(1)(a).
16 (2) The person in charge of the hospital must ensure that, as soon as
17 practicable and, in any event, within 12 hours after the time
18 when the person is admitted or received, a medical practitioner
19 physically attends on the person for the purpose of examining
20 the person to assess the person's physical condition.
21 (3) For the purposes of subsection (2), these things may be done in
22 relation to a person referred to in subsection (1)(a)(ii) or (iii)
23 or (b) without consent --
24 (a) the person may be examined;
25 (b) samples of the person's blood, saliva, tissue and excreta
26 may be taken.
27 (4) A medical practitioner who examines a person for the purposes
28 of subsection (2) must, as soon as practicable, file a record of
29 these things --
30 (a) the practitioner's name and qualifications;
page 178
Mental Health Bill 2013
Health care of people in hospitals Part 15
Urgent non-psychiatric treatment for involuntary inpatients and Division 2
mentally impaired accused
s. 242
1 (b) the date and time when the examination was conducted;
2 (c) the results of the examination.
3 Division 2 -- Urgent non-psychiatric treatment for involuntary
4 inpatients and mentally impaired accused
5 242. Provision of urgent non-psychiatric treatment: report to
6 Chief Psychiatrist
7 (1) This section applies if urgent non-psychiatric treatment is
8 provided to a patient who is --
9 (a) an involuntary patient who is under an inpatient
10 treatment order authorising the patient's detention at an
11 authorised hospital; or
12 (b) a mentally impaired accused required under the
13 MIA Act to be detained at an authorised hospital.
14 (2) In this section --
15 urgent non-psychiatric treatment means urgent treatment as
16 defined in the GAA Act section 110ZH.
17 (3) The person in charge of the authorised hospital must, as soon as
18 practicable, report the provision of the urgent non-psychiatric
19 treatment to --
20 (a) the Chief Psychiatrist; and
21 (b) if the patient is a mentally impaired accused -- the
22 Mentally Impaired Accused Review Board.
23 (4) The report must be in the approved form and must include these
24 things about the urgent non-psychiatric treatment --
25 (a) the name of the patient provided with the treatment;
26 (b) the name and qualifications of the practitioner who
27 provided the treatment;
28 (c) the names of any other people involved in providing the
29 treatment;
30 (d) the date, time and place the treatment was provided;
page 179
Mental Health Bill 2013
Part 15 Health care of people in hospitals
Division 2 Urgent non-psychiatric treatment for involuntary inpatients and
mentally impaired accused
s. 242
1 (e) particulars of the circumstances in which the treatment
2 was provided;
3 (f) particulars of the treatment provided.
4 (5) The provision of urgent non-psychiatric treatment is an event to
5 which Part 9 applies and the person in charge of the authorised
6 hospital is the person responsible under that Part for notification
7 of that event.
8 Note for section 242:
9 The GAA Act section 110ZI or 110ZIA may apply in relation to the provision of
10 urgent non-psychiatric treatment to a patient referred to in section 242.
page 180
Mental Health Bill 2013
Protection of patients' rights Part 16
Patients' rights generally Division 1
s. 243
1 Part 16 -- Protection of patients' rights
2 Division 1 -- Patients' rights generally
3 Subdivision 1 -- Explanation of rights
4 243. Application of this Subdivision
5 This Subdivision applies when --
6 (a) a patient is being admitted --
7 (i) by a hospital as a voluntary inpatient; or
8 (ii) by a hospital as an involuntary patient whose
9 detention at the hospital is authorised under an
10 inpatient treatment order; or
11 (iii) by an authorised hospital as a mentally impaired
12 accused required under the MIA Act to be
13 detained at the authorised hospital;
14 or
15 (b) an inpatient treatment order is made in respect of a
16 patient; or
17 (c) a patient who is under an inpatient treatment order is
18 granted leave of absence from a hospital under
19 section 105(1); or
20 (d) a community treatment order is made in respect of a
21 patient; or
22 (e) a person is referred under section 26(2) or 36(2) for an
23 examination to be conducted by a psychiatrist at an
24 authorised hospital; or
25 (f) a person is referred under section 26(3)(a) for an
26 examination to be conducted by a psychiatrist at a place
27 that is not an authorised hospital.
page 181
Mental Health Bill 2013
Part 16 Protection of patients' rights
Division 1 Patients' rights generally
s. 244
1 244. Rights to be explained to person
2 The person responsible under section 246 must ensure that the
3 person is provided with an explanation, as described in the
4 regulations, of the person's rights under this Act.
5 Note for section 244:
6 Any explanation provided under section 244 must be provided in accordance
7 with section 9(2).
8 245. Person's rights to be explained to another person
9 (1) The person responsible under section 246 must ensure that a
10 carer, close family member or other personal support person of
11 the person is provided with an explanation, as described in the
12 regulations, of the person's rights under this Act.
13 (2) This section applies despite any requirement under
14 section 286(2) or 288(2) relating to the person's consent or
15 refusal to consent.
16 Note for section 245:
17 Any explanation provided under section 245(1) must be provided in
18 accordance with section 9(2).
19 246. Person responsible for ensuring explanation is provided
20 For sections 244 and 245, the person responsible is --
21 (a) when section 243(a) applies -- the person in charge of
22 the authorised hospital; or
23 (b) when section 243(b) applies -- the psychiatrist who
24 makes the inpatient treatment order; or
25 (c) when section 243(c) applies -- the psychiatrist who
26 grants the leave of absence; or
27 (d) when section 243(d) applies -- the psychiatrist who
28 makes the community treatment order; or
29 (e) when section 243(e) or (f) applies -- the medical
30 practitioner or authorised mental health practitioner who
31 makes the referral.
page 182
Mental Health Bill 2013
Protection of patients' rights Part 16
Patients' rights generally Division 1
s. 247
1 Subdivision 2 -- Access to records about patients and
2 former patients
3 247. Term used: relevant document
4 In this Subdivision --
5 relevant document, in relation to a person, means the whole or
6 any part of the person's medical record or any other document
7 about the person.
8 248. Right to access medical record and other documents
9 (1) Unless section 249(1)(a) or (b) or (3) applies, a person who is or
10 was provided with treatment or care by a mental health service
11 is entitled to inspect, and to be given a copy of, any relevant
12 document relating to the person that is in the possession or
13 control of --
14 (a) the person in charge of the mental health service; or
15 (b) a staff member of the mental health service.
16 (2) Subsection (1) does not affect any other right that the person has
17 under this Act or another law to be given access to a document.
18 (3) The person in charge of the mental health service must
19 ensure --
20 (a) that any request by the person to inspect, or to be given
21 a copy of, a relevant document relating to the person is
22 dealt with as soon as practicable after the request is
23 received by the person who has possession or control of
24 the relevant document; and
25 (b) if the request is refused -- that a record in the approved
26 form of the reasons for the refusal is filed and a copy
27 given to the person.
page 183
Mental Health Bill 2013
Part 16 Protection of patients' rights
Division 1 Patients' rights generally
s. 249
1 249. Restrictions on access
2 (1) A person is not entitled to have access under section 248(1) to a
3 relevant document relating to the person --
4 (a) if a psychiatrist reasonably believes that disclosure of
5 the information in the document to the person --
6 (i) poses a significant risk to the health or safety of
7 the person or to the safety of another person; or
8 (ii) poses a significant risk of serious harm to the
9 person or to another person;
10 or
11 (b) if disclosure of the information in the document to the
12 person would reveal --
13 (i) personal information about an individual who is
14 not the person; or
15 (ii) information of a confidential nature that was
16 obtained in confidence.
17 (2) Subsection (1)(b) does not apply if the personal information is
18 about an individual who consents to the disclosure of the
19 information.
20 (3) A person is not entitled to have access under section 248(1) to a
21 relevant document relating to the person if the person --
22 (a) is or was a mentally impaired accused required under
23 the MIA Act to be detained at an authorised hospital;
24 and
25 (b) the relevant document came into existence under, or for
26 the purposes of, the Prisons Act 1981.
27 250. Providing access to medical practitioner or legal
28 practitioner
29 (1) This section applies if a person has been refused access under
30 section 248(1) to a relevant document relating to the person for
31 a reason referred to in section 249(1)(a).
page 184
Mental Health Bill 2013
Protection of patients' rights Part 16
Patients' rights generally Division 1
s. 251
1 (2) The person may nominate a medical practitioner or a legal
2 practitioner or both to inspect, and to be given a copy of, the
3 relevant document.
4 (3) A practitioner nominated under subsection (2) is entitled to
5 inspect, and to be given a copy of, the relevant document as
6 soon as practicable.
7 251. Disclosure by medical practitioner or legal practitioner
8 A person who inspects, or is given a copy of, a relevant
9 document in the exercise or purported exercise of a right under
10 section 250(3) must not disclose any information in the
11 document to the person who has been refused access under
12 section 248(1) to the document.
13 Penalty: a fine of $5 000.
14 Subdivision 3 -- Duties of staff of mental health services
15 toward patients
16 252. Term used: mental health service
17 In this Subdivision --
18 mental health service includes a private psychiatric hostel.
19 253. Duty not to ill-treat or wilfully neglect patients
20 A staff member of a mental health service must not ill-treat or
21 wilfully neglect a person for whom the Chief Psychiatrist is
22 responsible under section 513(1) who is being provided with
23 treatment or care by the mental health service.
24 Penalty: a fine of $15 000 and imprisonment for 2 years.
25 254. Duty to report certain incidents
26 (1) In this section --
27 reportable incident, in relation to a person, means --
28 (a) unlawful sexual contact with the person by a staff
29 member of a mental health service; or
page 185
Mental Health Bill 2013
Part 16 Protection of patients' rights
Division 2 Additional rights of inpatients in hospitals
s. 255
1 (b) the unreasonable use of force on the person by a staff
2 member of a mental health service.
3 (2) A staff member of a mental health service who reasonably
4 suspects that a reportable incident has occurred in relation to a
5 person for whom the Chief Psychiatrist is responsible under
6 section 513(1) who is being provided with treatment or care by
7 the mental health service must report the suspicion to --
8 (a) the person in charge of the mental health service; or
9 (b) the Chief Psychiatrist.
10 Penalty: a fine of $6 000.
11 Division 2 -- Additional rights of inpatients in hospitals
12 Subdivision 1 -- Admission of voluntary inpatients by
13 authorised hospitals
14 255. Admission by medical practitioner
15 A voluntary patient can only be admitted as an inpatient of an
16 authorised hospital by a medical practitioner.
17 256. Confirmation of admission by psychiatrist
18 (1) The admission of a voluntary patient as an inpatient of an
19 authorised hospital must be confirmed by a psychiatrist.
20 (2) Subsection (1) does not apply if the voluntary patient is
21 admitted by a psychiatrist.
22 257. Reasons for refusing to admit or confirm admission
23 (1) A medical practitioner who refuses to admit, or a psychiatrist
24 who refuses to confirm the admission of, a voluntary patient as
25 an inpatient of an authorised hospital must --
26 (a) inform the voluntary patient of the reasons for refusing;
27 and
page 186
Mental Health Bill 2013
Protection of patients' rights Part 16
Additional rights of inpatients in hospitals Division 2
s. 258
1 (b) advise the voluntary patient that a complaint about the
2 refusal can be made --
3 (i) under Part 19 to either the person in charge of the
4 authorised hospital or the Director of the
5 Complaints Office; or
6 (ii) to the Chief Psychiatrist;
7 and
8 (c) if that information or advice is provided orally -- advise
9 the voluntary patient that the medical practitioner or
10 psychiatrist may be requested to confirm it in writing.
11 (2) The medical practitioner or psychiatrist must, as soon as
12 practicable, comply with a request to confirm in writing
13 information or advice provided orally under subsection (1).
14 Note for section 257:
15 Any information or advice provided under section 257(1) or (2) must be
16 provided in accordance with section 9(2).
17 Subdivision 2 -- Rights of inpatients generally
18 258. Application of this Subdivision
19 This Subdivision applies in relation to any of these patients --
20 (a) a voluntary inpatient who is admitted by an authorised
21 hospital;
22 (b) an involuntary inpatient whose detention at a hospital is
23 authorised under an inpatient treatment order;
24 (c) a mentally impaired accused required under the
25 MIA Act to be detained at an authorised hospital.
26 259. Personal possessions
27 (1) This section applies only in relation to a patient who is admitted
28 by an authorised hospital.
page 187
Mental Health Bill 2013
Part 16 Protection of patients' rights
Division 2 Additional rights of inpatients in hospitals
s. 259
1 (2) In this section --
2 personal possessions, of a patient, means any of these items --
3 (a) articles of clothing, jewellery or footwear belonging to
4 the patient;
5 (b) articles for personal use by the patient;
6 (c) aids for daily living, or medical prostheses, that are
7 usually used by the patient as means of assistance or to
8 maintain the patient's dignity.
9 (3) The person in charge of an authorised hospital must ensure that
10 each patient --
11 (a) is provided with a secure facility in which to store the
12 patient's personal possessions; and
13 (b) is allowed to use those possessions.
14 (4) Subsection (3) does not apply in relation to an item (including
15 an aid for daily living or medical prosthesis) that, in the opinion
16 of the person in charge, may pose a risk of harm to the patient or
17 to another person.
18 (5) Subsection (3) does not apply in relation to an item that is not an
19 aid for daily living or medical prosthesis that, in the opinion of
20 the person in charge, is not an appropriate item to store at the
21 authorised hospital.
22 (6) Any personal possessions of a patient left at an authorised
23 hospital for more than 6 months after the day on which the
24 patient is discharged by the hospital may be sold or otherwise
25 disposed of by the person in charge of the hospital, but only --
26 (a) after the person in charge gives at least one month's
27 notice of the proposed disposal to a carer, close family
28 member or other personal support person of the person;
29 and
30 (b) if no carer, close family member or other personal
31 support person of the person claims those possessions
32 within that 6-month period.
page 188
Mental Health Bill 2013
Protection of patients' rights Part 16
Additional rights of inpatients in hospitals Division 2
s. 260
1 260. Interview with psychiatrist
2 (1) A patient may, at any time while admitted by a hospital, request
3 an interview with a psychiatrist.
4 (2) The person in charge of the hospital must ensure --
5 (a) that, unless subsection (4) applies, the request is
6 complied with within a reasonable time after the request
7 is made; and
8 (b) that a record of the request having been made is filed.
9 (3) The psychiatrist who interviews a patient in compliance with a
10 request made under subsection (1) must file a record of --
11 (a) the date and time when the interview occurred; and
12 (b) the matters discussed during the interview.
13 (4) A psychiatrist may refuse a patient's request for an interview
14 under subsection (1) if --
15 (a) the patient has a history of making repeated requests
16 under subsection (1); and
17 (b) the psychiatrist is satisfied that the patient is acting
18 unreasonably in making the request.
19 (5) A psychiatrist who refuses a patient's request under
20 subsection (4) must file a record of the reasons for refusing and
21 give a copy to the patient.
22 261. Freedom of lawful communication
23 (1) This section applies subject to section 262.
24 (2) A patient has the right of freedom of lawful communication.
25 (3) A patient's freedom of lawful communication includes the
26 freedom to do any of these things in reasonable privacy --
27 (a) see and speak with other people in the hospital to the
28 extent that is reasonable;
page 189
Mental Health Bill 2013
Part 16 Protection of patients' rights
Division 2 Additional rights of inpatients in hospitals
s. 262
1 (b) have uncensored communications with people, including
2 by receiving visits, sending and receiving telephone
3 calls, and sending and receiving mail and electronic
4 communications;
5 (c) receive visits from, and otherwise have contact with, the
6 patient's legal practitioner at all reasonable times;
7 (d) receive visits from, and otherwise have contact with, a
8 mental health advocate at any time;
9 (e) receive visits from, and be otherwise contacted by, other
10 people at all reasonable times.
11 262. Restrictions on freedom of communication
12 (1) A psychiatrist may make an order --
13 (a) prohibiting a patient from exercising a right under
14 section 261; or
15 (b) limiting the extent to which a patient can exercise a right
16 under section 261.
17 (2) A psychiatrist cannot make an order under subsection (1)
18 prohibiting, or limiting the extent of, a patient's right under
19 section 261(3)(a), (b) or (e) unless satisfied that making the
20 order is in the best interests of the patient.
21 (3) A psychiatrist cannot make an order under subsection (1)
22 prohibiting, or limiting the extent of, a patient's right under
23 section 261(3)(c) or (d) to receive visits from the person's legal
24 practitioner or a mental health advocate unless satisfied that --
25 (a) there is a serious risk to the safety of the legal
26 practitioner or mental health advocate if the order is not
27 made; and
28 (b) there are no other steps that could reasonably be taken to
29 reduce that risk.
30 (4) A psychiatrist cannot make an order under subsection (1)
31 prohibiting, or limiting the extent of, a patient's right under
page 190
Mental Health Bill 2013
Protection of patients' rights Part 16
Additional rights of inpatients in hospitals Division 2
s. 262
1 section 261(3)(c) or (d) to be otherwise contacted by the
2 person's legal practitioner or a mental health advocate.
3 (5) The order must be in the approved form and must include the
4 following --
5 (a) the date and time when it is made;
6 (b) the reasons for making it;
7 (c) the name, qualifications and signature of the
8 psychiatrist.
9 (6) A psychiatrist who makes an order under subsection (1) must, as
10 soon as practicable --
11 (a) file it and give a copy to the patient; and
12 (b) give a copy to any carer, close family member or other
13 personal support person of the patient.
14 (7) A psychiatrist must, before the end of each 24-hour period that
15 an order made under subsection (1) is in force, review the order
16 and confirm, amend or revoke it.
17 (8) A psychiatrist who confirms, amends or revokes an order made
18 under subsection (1) must --
19 (a) file a record of the confirmation, amendment or
20 revocation and the reasons for it; and
21 (b) advise the patient of the confirmation, amendment or
22 revocation and those reasons.
23 (9) An order made under subsection (1) ceases to be in force if it is
24 not reviewed before the end of any 24-hour period referred to in
25 subsection (7).
26 (10) A psychiatrist who makes an order under subsection (1) in
27 respect of a patient must, within 24 hours after the time when
28 the order is made, advise the Chief Mental Health Advocate that
29 the order has been made.
30 Note for section 262:
31 For the purpose of deciding under section 262(2) what is or is not in the best
32 interests of a patient, Part 2 Division 3 applies.
page 191
Mental Health Bill 2013
Part 16 Protection of patients' rights
Division 3 Nominated persons
s. 263
1 Division 3 -- Nominated persons
2 Subdivision 1 -- Purpose and effect of nomination
3 263. Role of nominated person
4 The role of a nominated person is to assist the person who made
5 the nomination by ensuring that, in performing a function under
6 this Act in relation to that person, a person or body --
7 (a) observes that person's rights under this Act; and
8 (b) takes that person's interests and wishes into account.
9 264. Effect of nomination
10 (1) This section does not limit the role of a nominated person under
11 section 263.
12 (2) A patient is entitled to have uncensored communications with
13 the patient's nominated person, including by any of these
14 means --
15 (a) receiving visits;
16 (b) making and receiving telephone calls;
17 (c) sending and receiving electronic communications;
18 (d) sending and receiving mail.
19 (3) A right of a patient under subsection (2) is subject to any order
20 in force under section 262(1) prohibiting the patient from
21 exercising, or limiting the extent to which the patient can
22 exercise, a right in respect of the patient's nominated person.
23 (4) To the extent provided by section 266, a patient's nominated
24 person is entitled to be provided with information, and to be
25 involved in matters, relating to the patient's treatment and care.
26 (5) A patient's nominated person may exercise, on behalf of the
27 patient, the rights conferred under this Act on the patient.
page 192
Mental Health Bill 2013
Protection of patients' rights Part 16
Nominated persons Division 3
s. 265
1 (6) To avoid doubt, a nomination does not authorise a patient's
2 nominated person to apply on the patient's behalf for admission
3 or discharge by a mental health service, or make a treatment
4 decision about the provision of treatment to the patient, unless
5 the nominated person is authorised to do so in another capacity.
6 Note for section 264:
7 For section 264(6), a patient's nominated person could for example also be
8 the patient's enduring guardian or guardian or the person responsible for the
9 patient under the GAA Act section 110ZD.
10 Subdivision 2 -- Right to information, and to be involved in matters,
11 relating to patient's treatment and care
12 265. Application of this Subdivision
13 This Subdivision does not apply in relation to the notification of
14 an event to which Part 9 applies.
15 266. Rights of nominated person
16 (1) A patient's nominated person is entitled --
17 (a) subject to section 269, to be provided with information
18 relating to the patient's treatment and care, including
19 information about these matters --
20 (i) the mental illness for which the patient is being
21 provided with treatment or care;
22 (ii) if the patient is an involuntary patient -- the
23 grounds on which, and the provision of this Act
24 under which, the involuntary treatment order was
25 made;
26 (iii) the treatment and care proposed to be provided to
27 the patient and any other options for the patient's
28 treatment and care that are reasonably available;
29 (iv) the treatment provided to the patient and the
30 patient's response to that treatment;
31 (v) the seclusion of, or use of bodily restraint on, the
32 patient;
page 193
Mental Health Bill 2013
Part 16 Protection of patients' rights
Division 3 Nominated persons
s. 266
1 (vi) the services available to meet the patient's needs;
2 and
3 (b) subject to section 269, to be involved in matters relating
4 to the patient's treatment and care, including these
5 matters --
6 (i) the consideration of the options that are
7 reasonably available for the patient's treatment
8 and care;
9 (ii) the provision of support to the patient;
10 (iii) the preparation and review of any treatment,
11 support and discharge plan for the patient;
12 and
13 (c) to be provided with information about the patient's
14 rights under this Act and how those rights can be
15 accessed and exercised; and
16 (d) to be provided with information about the rights of the
17 nominated person under this Act and how those rights
18 can be accessed and exercised.
19 (2) A patient's nominated person may indicate the extent to which
20 the nominated person wants to be provided with the information
21 referred to in subsection (1)(a) or (c) or to be involved in the
22 matters referred to in subsection (1)(b).
23 (3) To avoid doubt, a patient's nominated person is not authorised
24 to apply on the patient's behalf for admission or discharge by a
25 mental health service, or make a treatment decision about the
26 provision of treatment to the patient, unless the nominated
27 person is authorised to do so in another capacity.
28 Notes for section 266:
29 1. Any information provided under section 266(1)(a), (c) or (d) must be
30 provided in accordance with section 9(2).
31 2. For section 266(3), a patient's nominated person could for example also
32 be the patient's enduring guardian or guardian or the person responsible
33 for the patient under the GAA Act section 110ZD.
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s. 267
1 267. Responsibility of patient's psychiatrist
2 A patient's psychiatrist must ensure that the patient's nominated
3 person is provided with information referred to in
4 section 266(1)(a) or (c), or involved in a matter referred to in
5 section 266(1)(b), if no other provision is made under this Act
6 about who must ensure that the nominated person is provided
7 with that information or involved in that matter.
8 268. Contacting nominated person
9 (1) This section applies in relation to a requirement under this Act
10 to provide a patient's nominated person with information
11 referred to in section 266(1)(a) or (c) or involve a patient's
12 nominated person in a matter referred to in section 266(1)(b).
13 (2) Without limiting a requirement referred to in subsection (1), the
14 requirement is taken to have been complied with if the person
15 responsible for ensuring the requirement is complied with
16 ensures that reasonable efforts to provide the nominated person
17 with the information or involve the nominated person in the
18 matter continue to be made until the first of these things
19 occurs --
20 (a) the nominated person is provided with the information
21 or involved in the matter;
22 (b) it is reasonable for the person responsible to conclude
23 that the nominated person cannot be provided with the
24 information or involved in the matter.
25 (3) The person responsible must ensure that one of the following is
26 filed --
27 (a) a record of when and how the nominated person was
28 provided with the information or involved in the matter;
29 (b) if the nominated person could not be provided with the
30 information or involved in the matter -- a record of the
31 efforts made to do so.
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Division 3 Nominated persons
s. 269
1 269. Provision of information or involvement not in patient's best
2 interests
3 (1) A patient's nominated person is not entitled to be provided with
4 particular information or involved in a particular matter if the
5 patient's psychiatrist reasonably believes that it is not in the best
6 interests of the patient for the nominated person to be provided
7 with that information or involved in that matter.
8 (2) A patient's psychiatrist who decides under subsection (1) that
9 the patient's nominated person is not entitled to be provided
10 with particular information or involved in a particular matter
11 must, as soon as practicable --
12 (a) file a record of the decision and the reasons for it; and
13 (b) give a copy to each of --
14 (i) the patient; and
15 (ii) the Chief Mental Health Advocate.
16 Note for section 269:
17 For the purpose of deciding under section 269(1) what is or is not in the best
18 interests of a patient, Part 2 Division 3 applies.
19 270. Advising nominated person of decision
20 (1) A patient's psychiatrist who decides under section 269(1) that
21 the patient's nominated person is not entitled to be provided
22 with information or involved in a matter must, if the nominated
23 person requests to be provided with the information or involved
24 in the matter --
25 (a) advise the nominated person of the decision and the
26 reasons for it; and
27 (b) file a record of the advice and give a copy to the patient.
28 (2) A patient's nominated person to whom advice is provided orally
29 under subsection (1)(a) may request the patient's psychiatrist to
30 confirm the advice in writing.
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s. 271
1 (3) The patient's psychiatrist must --
2 (a) comply with the request; and
3 (b) file a copy of the confirmation and give another copy to
4 the patient.
5 Note for section 270:
6 Any advice provided under section 270(1)(a) or (3)(a) must be provided in
7 accordance with section 9(2).
8 271. Revocation of decision
9 (1) A patient's psychiatrist may revoke a decision made under
10 section 269(1) that the patient's nominated person is not entitled
11 to be provided with information or involved in a matter if
12 satisfied that the reasons for making the decision no longer
13 apply.
14 (2) The patient's psychiatrist must, as soon as practicable, file a
15 record of the decision and the reasons for it and give a copy to
16 the patient.
17 (3) If the nominated person previously requested to be provided
18 with the information or involved in the matter, the patient's
19 psychiatrist must ensure that, as soon as practicable --
20 (a) the nominated person is provided with the information
21 or involved in the matter; and
22 (b) a record of when and how the nominated person was
23 provided with the information or involved in the matter
24 is filed and a copy given to the patient.
25 (4) However, there is no requirement to involve the nominated
26 person in a matter if the time for doing so has passed.
27 272. Rights in another capacity not affected
28 This Subdivision does not affect any right that a patient's
29 nominated person has (whether under this Act or otherwise) to
30 be provided with information or involved in a matter in another
31 capacity.
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Division 3 Nominated persons
s. 273
1 Note for section 272:
2 A child's nominated person could for example also be the child's parent or
3 guardian.
4 Subdivision 3 -- Making and ending nomination
5 273. Who can make nomination
6 (1) A person, including a child, may nominate another person to be
7 the person's nominated person.
8 (2) A person cannot make a nomination under subsection (1) unless
9 the person understands the effect of making the nomination.
10 274. Who can be nominated
11 Only an adult is eligible to be nominated under section 273(1).
12 275. Formal requirements
13 (1) A nomination is not valid unless --
14 (a) it is in the approved form; and
15 (b) it states the name and contact details of the person being
16 nominated; and
17 (c) it states the date on which it takes effect; and
18 (d) it is signed by the person making the nomination or by
19 another person in the presence of, and at the direction of,
20 the person making the nomination; and
21 (e) the signature referred to in paragraph (d) is witnessed by
22 a person referred to in subsection (2); and
23 (f) it is signed by the person being nominated to indicate
24 that the person accepts the nomination; and
25 (g) the signature referred to in paragraph (f) is witnessed by
26 a person referred to in subsection (2).
27 (2) For the purposes of subsection (1)(e) and (g), the witness must
28 be authorised by law to take declarations but cannot be a person
29 referred to in subsection (1)(d) or (f).
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s. 276
1 276. Only one nominated person
2 A person cannot have more than one nominated person at any
3 time.
4 277. Revocation of nomination
5 (1) A nomination may be revoked by the person who made it at any
6 time by any means whatsoever.
7 (2) A nomination is revoked if the person who made it makes
8 another nomination.
9 278. Resignation of nominated person
10 (1) A nominated person may resign the nomination by writing
11 signed and given to the person who made the nomination.
12 (2) The resignation takes effect on the later of the following --
13 (a) receipt by the person who made the nomination;
14 (b) the day specified in the resignation.
15 279. Notification of revocation or resignation
16 (1) Subsection (2) applies if a patient's nominated person --
17 (a) resigns the nomination; or
18 (b) becomes aware that the patient has revoked the
19 nomination.
20 (2) The nominated person must take all reasonable steps to notify
21 any medical practitioner, mental health practitioner or mental
22 health service that the nominated person is aware is providing
23 treatment or care to the patient that the nomination no longer
24 has effect.
25 (3) Subsection (4) applies if a medical practitioner, mental health
26 practitioner or mental health service who is providing treatment
27 or care to a patient becomes aware that the patient has revoked a
28 nomination.
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Division 3 Nominated persons
s. 279
1 (4) The practitioner or the person in charge of the mental health
2 service must ensure that all reasonable steps are taken to notify
3 the nominated person of the revocation.
4 Note for Division 3:
5 Part 21 Division 10 confers jurisdiction on the Mental Health Tribunal to hear
6 and determine applications relating to nominated persons.
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Mental Health Bill 2013
Recognition of rights of carers and families Part 17
Role of carers and families Division 1
s. 280
1 Part 17 -- Recognition of rights of carers and families
2 Division 1 -- Role of carers and families
3 280. Carers
4 (1) For this Act, a carer of a person is a person who is that person's
5 carer under the Carers Recognition Act 2004 section 5.
6 (2) It is recognised that very often, although not invariably, a
7 person's carer is a family member.
8 (3) It is also recognised that, even though a family member is a
9 person's carer --
10 (a) the person may not identify the family member as his or
11 her carer; or
12 (b) the family member may not identify himself or herself
13 as the person's carer.
14 281. Close family members
15 (1) For this Act, a close family member of a person is a family
16 member referred to in subsection (2) --
17 (a) who is not also the person's carer or the person's
18 nominated person; but
19 (b) who provides ongoing care or assistance to the person.
20 (2) For subsection (1), a family member of a person is any member
21 of the person's family, including --
22 (a) any of these people, whether the relationship is
23 established by or traced through consanguinity,
24 marriage, a de facto relationship, a written law or a
25 natural relationship --
26 (i) a spouse or de facto partner;
27 (ii) a child;
28 (iii) a step child;
29 (iv) a parent;
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Division 1 Role of carers and families
s. 282
1 (v) a step parent;
2 (vi) a foster parent;
3 (vii) a sibling;
4 (viii) a grandparent;
5 (ix) an aunt or uncle;
6 (x) a niece or nephew;
7 (xi) a cousin;
8 and
9 (b) if the person is of Aboriginal or Torres Strait Islander
10 descent -- any person regarded under the customary
11 law, tradition or kinship of that person's community as
12 the equivalent of a person described in paragraph (a).
13 282. Acknowledgment of and respect for role of carers and close
14 family members
15 The role of carers and close family members in the provision of
16 treatment, care and support to a person who has a mental illness
17 should be acknowledged and respected.
18 283. More than one carer or close family member
19 (1) Without limiting a requirement under this Act relating to any
20 carer of a person, it is sufficient for compliance with the
21 requirement if there is compliance in respect of at least one
22 carer.
23 (2) Without limiting a requirement under this Act relating to any
24 close family member of a person, it is sufficient for compliance
25 with the requirement if there is compliance in respect of at least
26 one close family member.
27 (3) This section does not apply in relation to a requirement under
28 Part 9 Division 2 or section 444 or 445 in respect of a carer or
29 close family member.
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s. 284
1 Note for section 283:
2 Under Part 9 Division 2, it is sufficient if at least one personal support person
3 is notified if a notifiable event occurs. Under sections 444 and 445, it is
4 sufficient if at least one personal support person is notified of an application
5 made to, or a hearing in a proceeding of, the Mental Health Tribunal. In both
6 cases, that personal support person can (but need not) be a carer or close
7 family member.
8 Division 2 -- Information about and involvement in patient's
9 treatment and care
10 284. Application of this Division
11 This Division does not apply in relation to the notification of an
12 event to which Part 9 applies.
13 285. Rights of carers and close family members
14 (1) Any carer or close family member of a patient is entitled --
15 (a) subject to this Division, to be provided with information
16 relating to the patient's treatment and care, including
17 information about these matters --
18 (i) the mental illness for which the patient is being
19 provided with treatment or care;
20 (ii) if the patient is an involuntary patient -- the
21 grounds on which, and the provision of this Act
22 under which, the involuntary treatment order was
23 made;
24 (iii) the treatment and care proposed to be provided to
25 the patient and any other options for the patient's
26 treatment and care that are reasonably available;
27 (iv) the treatment provided to the patient and the
28 patient's response to that treatment;
29 (v) the seclusion of, or use of bodily restraint on, the
30 patient;
31 (vi) the services available to meet the patient's needs;
32 and
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Division 2 Information about and involvement in patient's treatment and
care
s. 285
1 (b) subject to this Division, to be involved in matters
2 relating to the patient's treatment and care, including
3 these matters --
4 (i) the consideration of the options that are
5 reasonably available for the patient's treatment
6 and care; and
7 (ii) the provision of support to the patient; and
8 (iii) the preparation and review of any treatment,
9 support and discharge plan for the patient;
10 and
11 (c) to be provided with information about the patient's
12 rights under this Act and how those rights can be
13 accessed and exercised; and
14 (d) to be provided with information about the rights of the
15 carer or close family member under this Act and how
16 those rights can be accessed and exercised.
17 (2) A carer or close family member of a patient may indicate the
18 extent to which the carer or close family member wants to be
19 provided with the information referred to in
20 subsection (1)(a), (c) or (d) or to be involved in the matters
21 referred to in subsection (1)(b).
22 (3) To avoid doubt, a carer or close family member of a patient is
23 not authorised to apply on the patient's behalf for admission or
24 discharge by a mental health service, or make a treatment
25 decision about the provision of treatment to the patient, unless
26 the carer or close family member is authorised to do so in
27 another capacity.
28 Notes for section 285:
29 1. Any information provided under section 285(1)(a), (c) or (d) must be
30 provided in accordance with section 9(2).
31 2. For section 285(3), a carer of a patient could for example also be the
32 patient's enduring guardian or guardian or a close family member of a
33 patient could for example also be the person responsible for the patient
34 under the GAA Act section 110ZD.
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s. 286
1 286. Voluntary patient with capacity to consent
2 (1) This section applies in relation to a voluntary patient who has
3 the capacity to consent to a carer or close family member of the
4 patient being provided with the information referred to in
5 section 285(1)(a), or being involved in the matters referred to in
6 section 285(1)(b), relating to his or her treatment and care.
7 (2) The carer or close family member is entitled to be provided with
8 that information, or to be involved in those matters, with the
9 voluntary patient's consent.
10 287. Voluntary patient with no capacity to consent
11 (1) This section applies in relation to a voluntary patient who does
12 not have the capacity to consent to a carer or close family
13 member of the patient being provided with the information
14 referred to in section 285(1)(a), or being involved in the matters
15 referred to in section 285(1)(b), relating to his or her treatment
16 and care.
17 (2) The carer or close family member is entitled, subject to
18 section 292, to be provided with that information, or to be
19 involved in those matters.
20 288. Involuntary patient or mentally impaired accused with
21 capacity to consent
22 (1) This section applies in relation to a patient --
23 (a) who is --
24 (i) an involuntary patient; or
25 (ii) a mentally impaired accused required under the
26 MIA Act to be detained at an authorised hospital;
27 and
28 (b) who has the capacity to consent to a carer or close
29 family member of the patient being provided with the
30 information referred to in section 285(1)(a), or being
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Division 2 Information about and involvement in patient's treatment and
care
s. 289
1 involved in the matters referred to in section 285(1)(b),
2 relating to his or her treatment and care.
3 (2) The carer or close family member is entitled to be provided with
4 that information, or to be involved in those matters, unless --
5 (a) the patient has refused to consent to the carer or close
6 family member being provided with that information or
7 being involved in those matters; and
8 (b) the patient's psychiatrist considers that the refusal is
9 reasonable.
10 289. Involuntary patient or mentally impaired accused with no
11 capacity to consent
12 (1) This section applies in relation to a patient --
13 (a) who is --
14 (i) an involuntary patient; or
15 (ii) a mentally impaired accused required under the
16 MIA Act to be detained at an authorised hospital;
17 and
18 (b) who does not have the capacity to consent to a carer or
19 close family member of the patient being provided with
20 the information referred to in section 285(1)(a), or being
21 involved in the matters referred to in section 285(1)(b),
22 relating to his or her treatment and care.
23 (2) The carer or close family member is entitled, subject to
24 section 292, to be provided with that information, or to be
25 involved in those matters.
26 290. Responsibility of patient's psychiatrist
27 A patient's psychiatrist must ensure that any carer or close
28 family member of the patient is provided with information
29 referred to in section 285(1)(a), (c) or (d), or involved in a
30 matter referred to in section 285(1)(b), if no other provision is
31 made under this Act about who must ensure that any carer or
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Information about and involvement in patient's treatment and Division 2
care
s. 291
1 close family member is provide with that information or
2 involved in that matter.
3 291. Contacting carer or close family member
4 (1) This section applies in relation to each of these requirements --
5 (a) a requirement under this Act to provide any carer of a
6 patient with information referred to in
7 section 285(1)(a), (c) or (d) or involve any carer of a
8 patient in a matter referred to in section 285(1)(b);
9 (b) a requirement under this Act to provide any close family
10 member of a patient with information referred to in
11 section 285(1)(a), (c) or (d) or involve any close family
12 member of a patient in a matter referred to in
13 section 285(1)(b).
14 (2) Without limiting a requirement referred to in subsection (1)(a)
15 or (b), the requirement is taken to have been complied with if
16 the person responsible for ensuring that the requirement is
17 complied with ensures that reasonable efforts to provide any
18 carer or any close family member with the information or
19 involve any carer or any close family member in the matter
20 continue to be made until the first of these things occurs --
21 (a) at least one carer or one close family member is
22 provided with the information or involved in the matter;
23 (b) it is reasonable for the person responsible to conclude
24 that no carer or no close family member can be provided
25 with the information or involved in the matter.
26 (3) The person responsible must ensure that one of the following is
27 filed --
28 (a) a record of when and how any carer or any close family
29 member was provided with the information or involved
30 in the matter;
31 (b) if no carer or no close family member could be provided
32 with the information or involved in the matter -- a
33 record of the efforts made to do so.
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s. 292
1 (4) Sections 296 and 297 do not limit --
2 (a) the requirement under subsection (1)(a) to make
3 reasonable efforts to provide a carer of a patient with
4 information or involve a carer of a patient in a matter; or
5 (b) the requirement under subsection (1)(b) to make
6 reasonable efforts to provide a close family member of a
7 patient with information or involve a close family
8 member of a patient in a matter.
9 292. Provision of information or involvement not in patient's best
10 interests
11 (1) A carer or close family member of a patient is not entitled under
12 section 287(2) or 289(2) to be provided with particular
13 information or involved in a particular matter if the patient's
14 psychiatrist reasonably believes that it is not in the best interests
15 of the patient for the carer or close family member to be
16 provided with that information or involved in that matter.
17 (2) A patient's psychiatrist who decides under subsection (1) that a
18 carer or close family member of the patient is not entitled to be
19 provided with particular information or involved in a particular
20 matter must --
21 (a) file a record of the decision and the reasons for it; and
22 (b) give a copy to each of --
23 (i) the patient; and
24 (ii) the Chief Mental Health Advocate.
25 Note for section 292:
26 For the purpose of deciding under section 292(1) what is or is not in the best
27 interests of a patient, Part 2 Division 3 applies.
28 293. Advising carer or close family member of decision
29 (1) A patient's psychiatrist who decides under section 292(1) that a
30 carer or close family member of the patient is not entitled to be
31 provided with particular information or involved in a particular
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s. 294
1 matter must, if the carer or close family member requests to be
2 provided with the information or involved in the matter --
3 (a) advise the carer or close family member of the decision
4 and the reasons for it; and
5 (b) file a record of the advice and give a copy to the patient.
6 (2) A carer or close family member of a patient to whom advice is
7 provided orally under subsection (1)(a) may request the
8 patient's psychiatrist to confirm the advice in writing.
9 (3) The patient's psychiatrist must --
10 (a) comply with the request; and
11 (b) file a copy of the confirmation and give another copy to
12 the patient.
13 Note for section 293:
14 Any information or advice provided under section 293(1)(a) or (3)(a) must be
15 provided in accordance with section 9(2).
16 294. Revocation of decision
17 (1) A patient's psychiatrist may revoke a decision under
18 section 292(1) that a carer or close family member of the patient
19 is not entitled to be provided with particular information or
20 involved in a particular matter if satisfied that the reasons for
21 making the decision no longer apply.
22 (2) The patient's psychiatrist must, as soon as practicable, file a
23 record of the decision and the reasons for it and give a copy to
24 the patient.
25 (3) If the carer or close family member previously requested to be
26 provided with the information or involved in the matter, the
27 patient's psychiatrist must ensure that, as soon as practicable --
28 (a) the carer or close family member is provided with the
29 information or involved in the matter; and
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Division 3 Identifying carer or close family member
s. 295
1 (b) a record of when and how the carer or close family
2 member was provided with the information or involved
3 in the matter is filed and given to the patient.
4 (4) However, there is no requirement to involve the carer or close
5 family member in a matter if the time for doing so has passed.
6 295. Rights in another capacity not affected
7 This Division does not affect any right that a carer or close
8 family member of a patient has (whether under this Act or
9 otherwise) to be provided with information or involved in a
10 matter in another capacity.
11 Note for section 295:
12 A carer of a patient who is a child could for example also be the child's parent
13 or guardian or a close family member of a patient could also be the person
14 responsible for the patient under the GAA Act section 110ZD.
15 Division 3 -- Identifying carer or close family member
16 296. When being admitted or received
17 (1) This section applies when a person is being admitted by, or is
18 being received into, a mental health service for the purpose of
19 providing the person with treatment or care.
20 (2) The person in charge of the mental health service must ensure
21 that the person is asked --
22 (a) whether or not the person has a carer; and
23 (b) whether or not the person has a close family member;
24 and
25 (c) if the person has a carer or close family member,
26 whether or not the person consents to the carer or close
27 family member being --
28 (i) provided with the information referred to in
29 section 285(1)(a) in connection with the
30 provision of that treatment or care; and
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s. 297
1 (ii) involved in the matters referred to in
2 section 285(1)(b) while the person is being
3 provided with that treatment or care.
4 (3) The person in charge of the mental health service must ensure
5 that a record of the person's answers to the questions asked
6 under subsection (2) is filed.
7 297. While being provided with treatment or care
8 (1) This section applies in relation to a person --
9 (a) who is being provided with treatment or care by a
10 mental health service; and
11 (b) who --
12 (i) has refused to consent when asked under
13 section 296(2)(c)(i) or (ii); or
14 (ii) has refused to consent when asked under
15 subsection (2); or
16 (iii) consented when asked under section 296(2)(c)(i)
17 or (ii) or subsection (2) but has since then
18 withdrawn the consent.
19 (2) The person in charge of the mental health service must ensure
20 that the person is asked periodically whether or not the person
21 consents to a matter referred to in section 296(2)(c)(i) or (ii) in
22 respect of which the patient has refused to consent or has
23 withdrawn consent.
24 (3) The person in charge of the mental health service must ensure
25 that a record of the following is filed --
26 (a) each time when the person is asked under
27 subsection (2); and
28 (b) the person's answers at that time to the questions asked
29 under subsection (2).
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s. 298
1 298. Person can withdraw consent, or can consent, at any time
2 To avoid doubt --
3 (a) a person who consents when asked under
4 section 296(2)(c)(i) or (ii) can withdraw consent at any
5 time; and
6 (b) a person who refuses to consent when asked under
7 section 296(2)(c)(i) or (ii) can consent at any time.
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Children who have a mental illness Part 18
s. 299
1 Part 18 -- Children who have a mental illness
2 299. Best interests of child is a primary consideration
3 In performing a function under this Act in relation to a child, a
4 person or body must have regard to what is in the best interests
5 of the child as a primary consideration.
6 Note for section 299:
7 For the purpose of deciding under section 299 what is or is not in the best
8 interests of a child, Part 2 Division 3 applies.
9 300. Child's wishes
10 In performing a function under this Act in relation to a child, a
11 person or body must have regard to the child's wishes, to the
12 extent that it is practicable to ascertain those wishes.
13 301. Views of child's parent or guardian
14 In performing a function under this Act in relation to a child, a
15 person or body must have regard to the views of the child's
16 parent or guardian.
17 302. Child who is a voluntary patient
18 (1) This section applies in relation to a child who is a voluntary
19 patient.
20 (2) An application for the admission or discharge of the child by a
21 mental health service may be made by the child's parent or
22 guardian unless it is shown that the child has the capacity to
23 make the application himself or herself.
24 (3) A treatment decision about the provision of treatment to the
25 child may be made by the child's parent or guardian unless it is
26 shown that the child has the capacity to make the treatment
27 decision himself or herself.
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1 Note for section 302:
2 Part 5 Division 1 sets out what is required to show that a child has the
3 capacity to make a decision, including a treatment decision, about himself or
4 herself.
5 303. Segregation of children from adult inpatients
6 (1) This section applies in relation to a mental health service that
7 does not ordinarily provide treatment or care to children who
8 have a mental illness.
9 (2) A child cannot be admitted by a mental health service as an
10 inpatient unless the person in charge of the mental health
11 service is satisfied that --
12 (a) the mental health service can provide the child with
13 treatment, care and support that is appropriate having
14 regard to the child's age, maturity, gender, culture and
15 spiritual beliefs; and
16 (b) the treatment, care and support can be provided to the
17 child in a part of the mental health service that is
18 separate from any part of the mental health service in
19 which adults are provided with treatment and care if,
20 having regard to the child's age and maturity, it would
21 be appropriate to do so.
22 (3) When a child is being admitted by a mental health service as an
23 inpatient, the person in charge of the mental health service
24 must --
25 (a) give to the child's parent or guardian a written report
26 setting out --
27 (i) the reasons why the person in charge is satisfied
28 of the matters referred to in subsection (2)(a)
29 and (b); and
30 (ii) the measures that the mental health service will
31 take to ensure that, while the child is admitted as
32 an inpatient, the child is protected and the child's
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s. 304
1 individual needs in relation to treatment and care
2 are met;
3 and
4 (b) file a copy of the report and give another copy to the
5 Chief Psychiatrist.
6 304. Off-label treatment provided to child who is involuntary
7 patient
8 (1) This section applies if off-label treatment is provided to a child
9 who is an involuntary patient.
10 (2) In this section --
11 approved product information, for registered therapeutic goods,
12 means the product information approved under the Therapeutic
13 Goods Act 1989 (Commonwealth) in relation to the registered
14 therapeutic goods;
15 off-label treatment means the use of registered therapeutic
16 goods other than in accordance with the approved product
17 information for the registered therapeutic goods;
18 product information has the meaning given in the Therapeutic
19 Goods Act 1989 (Commonwealth) section 3(1);
20 registered therapeutic goods means registered goods as defined
21 in the Therapeutic Goods Act 1989 (Commonwealth)
22 section 3(1).
23 (3) The patient's psychiatrist must ensure that, as soon as
24 practicable --
25 (a) a record of these things is filed --
26 (i) the decision to provide the off-label treatment,
27 including a description of the off-label treatment;
28 (ii) the reasons for the decision;
29 and
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1 (b) a copy of the record is given to the Chief Psychiatrist.
2 Note for Part 18:
3 Part 17 applies in relation to a child's carer who is not also the child's parent
4 or guardian.
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Complaints about mental health services Part 19
Preliminary matters Division 1
s. 305
1 Part 19 -- Complaints about mental health services
2 Division 1 -- Preliminary matters
3 305. Terms used
4 In this Part --
5 Carers Charter has the meaning given in the Carers
6 Recognition Act 2004 section 4;
7 complainant, in relation to a complaint made to the Director
8 under Division 3 Subdivision 3, means the person or persons in
9 respect of whom the complaint alleges the respondent acted, or
10 failed to act, in a manner referred to in section 320(2);
11 complaint, for the purposes of Division 3 Subdivision 3,
12 includes a part of a complaint;
13 Complaints Office means the Health and Disability Services
14 Complaints Office continued by the Health and Disability
15 Services (Complaints) Act 1995 section 6(1);
16 Complaints Office staff means the staff of the Complaints
17 Office referred to in the Health and Disability Services
18 (Complaints) Act 1995 section 14, 15 or 16;
19 Director means the Director of the Health and Disability
20 Services Complaints Office appointed under the Health and
21 Disability Services (Complaints) Act 1995 section 7(1);
22 investigation means --
23 (a) an investigation of a complaint made to the Director
24 under Division 3 Subdivision 3; or
25 (b) an investigation conducted under section 341;
26 mental health service --
27 (a) means --
28 (i) a service provided specifically for people who
29 have or may have a mental illness; or
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1 (ii) a service provided specifically for carers of
2 people who have or may have a mental illness;
3 but
4 (b) does not include a service referred to in paragraph (a)(i)
5 or (ii) if it is --
6 (i) provided wholly from funds paid to a service
7 provider by the Commonwealth; or
8 (ii) provided to a person who has or may have a
9 mental illness by the person's carer; or
10 (iii) prescribed by the regulations for this paragraph;
11 respondent, in relation to a complaint made to the Director
12 under Division 3 Subdivision 3, means the service provider who
13 the complaint alleges acted, or failed to act, in a manner referred
14 to in section 320(2);
15 service provider --
16 (a) means an individual, group of individuals or body
17 (whether corporate or unincorporate) that renders or
18 provides mental health services; but
19 (b) does not include --
20 (i) the Chief Psychiatrist; or
21 (ii) a mental health advocate; or
22 (iii) the Mental Health Tribunal.
23 306. Making complaint to service provider or Director of
24 Complaints Office
25 (1) A complaint about a mental health service may be made --
26 (a) to a service provider in accordance with the service
27 provider's complaints procedure referred to in
28 section 308; or
29 (b) to the Director under Division 3 Subdivision 3.
30 (2) It is irrelevant for the purposes of this Part that a person in
31 respect of whom a complaint made under subsection (1) alleges
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Complaints to service providers Division 2
s. 307
1 a service provider acted, or failed to act, does not identify
2 himself or herself as a person who has or may have a mental
3 illness or as a carer of a person who has or may have a mental
4 illness.
5 307. Divisions 3 and 4 to be read with Health and Disbility
6 Services (Complaints) Act 1995
7 Divisions 3 and 4 are to be read with the Health and Disability
8 Services (Complaints) Act 1995.
9 Division 2 -- Complaints to service providers
10 308. Service provider must have complaints procedure
11 (1) The person in charge of a service provider must ensure --
12 (a) that there is a procedure (a complaints procedure) for
13 investigating any complaint made to the person in
14 charge about any mental health service provided by the
15 service provider; and
16 (b) that the complaints procedure is reviewed regularly and
17 revised as necessary.
18 (2) The person in charge of a service provider must ensure --
19 (a) that copies of the most up-to-date version of the service
20 provider's complaints procedure are freely available at
21 the service provider's premises; and
22 (b) that a person who requests a copy of the service
23 provider's complaints procedure is provided with a copy
24 of that version.
25 309. Prescribed service providers must provide Director with
26 information about complaints
27 (1) In this section --
28 prescribed means prescribed by the regulations for this section.
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1 (2) Within the prescribed period after 30 June in each year a
2 prescribed service provider, or a service provider in a class of
3 prescribed service provider, must give to the Director a report in
4 the form prescribed for the service provider or class of service
5 provider relating to --
6 (a) complaints received by the service provider during the
7 year that ended on that day; and
8 (b) action taken by the service provider during the year that
9 ended on that day in relation to complaints whenever
10 received by the service provider.
11 Penalty: a fine of $1 000.
12 Division 3 -- Complaints to Director of Complaints Office
13 Subdivision 1 -- Preliminary matters
14 310. Parties themselves may resolve complaint
15 (1) This Division does not prevent the complainant and the
16 respondent resolving a complaint by agreement at any time,
17 whether or not with the help of the Complaints Office, but if
18 that occurs the complainant must notify the Director without
19 delay that the complaint has been resolved.
20 (2) The Director must stop dealing with a complaint under this
21 Division if the Director is satisfied that it has been resolved.
22 311. Things done by or in relation to complainant
23 (1) Except as provided by this Division, a thing required to be done
24 under this Division by or in relation to a complainant may be
25 done by or in relation to --
26 (a) another complainant who made the complaint on the
27 complainant's behalf under section 315(1)(a) and (3); or
28 (b) the person, service provider or registration board who
29 made the complaint on the complainant's behalf under
30 section 315(1)(b) or (2)(b).
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s. 312
1 (2) For the purposes of this Division, a thing done under
2 subsection (1) is taken to have been done by or in relation to the
3 complainant who is required to do the thing or in respect of
4 whom the thing is required to be done under this Division.
5 Subdivision 2 -- Director of Complaints Office
6 312. Functions of Director
7 (1) The functions of the Director under this Division are --
8 (a) dealing with complaints made to the Director in
9 accordance with this Division; and
10 (b) in collaboration with groups of service providers or
11 groups of persons to whom mental health services are
12 provided or both, reviewing and identifying the causes
13 of complaints and suggesting ways of removing and
14 minimising those causes and bringing them to the notice
15 of the public; and
16 (c) taking steps to bring to the notice of people who have or
17 may have a mental illness, the carers of people who
18 have or may have a mental illness and service providers
19 details of procedures for making complaints under this
20 Division; and
21 (d) assisting service providers in developing and improving
22 procedures for making complaints made to the service
23 providers and the training of their staff in handling such
24 complaints; and
25 (e) with the approval of the Minister, inquiring into broader
26 issues about the care of people who have or may have a
27 mental illness arising out of complaints, whether made
28 to service providers or to the Director in accordance
29 with this Division; and
30 (f) preparing and publishing information about, and
31 promoting, the role of the Complaints Office and how to
32 make a complaint to the Director in accordance with this
33 Division; and
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s. 313
1 (g) providing advice generally on any matter relating to
2 complaints made to the Director in accordance with this
3 Division, and in particular --
4 (i) advice to people who have or may have a mental
5 illness and the carers of people who have or may
6 have a mental illness on the making of
7 complaints; and
8 (ii) advice to people who have or may have a mental
9 illness and the carers of people who have or may
10 have a mental illness as to other avenues
11 available for dealing with complaints; and
12 (iii) advice about removing or minimising the causes
13 of complaints;
14 and
15 (h) any other functions conferred on the Director by this
16 Division.
17 (2) The function of the Director under subsection (1)(f) does not
18 include the publication of personal information about a person
19 who has or may have a mental illness, but this subsection does
20 not affect the operation of section 343.
21 313. Directions by Minister
22 (1) The Minister may, after consultation with the Director, issue
23 written directions about the general policy to be followed by the
24 Director in performing functions under this Act.
25 (2) The Director may request the Minister to issue a direction under
26 subsection (1).
27 (3) A direction cannot be issued under this section in respect of --
28 (a) a particular complaint; or
29 (b) a particular person who has or may have a mental
30 illness; or
31 (c) a particular carer of a person who has or may have a
32 mental illness; or
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s. 314
1 (d) a particular service provider; or
2 (e) any other particular person or body.
3 (4) The Director must comply with a direction issued under this
4 section.
5 (5) The Minister must cause the text of a direction issued under this
6 section to be laid before each House of Parliament on or within
7 14 sitting days of the House after the day on which the direction
8 is issued.
9 (6) The text of a direction issued under this section must be
10 included in the annual report submitted by the accountable
11 authority in respect of the Complaints Office under the
12 Financial Management Act 2006 Part 5.
13 314. Minister to have access to specified information about
14 Director's functions
15 (1) In this section --
16 specified information means information specified, or of a
17 description specified, by the Minister that relates to the
18 functions of the Director under this Division.
19 (2) The Minister is entitled --
20 (a) to have specified information in the possession of the
21 Director; and
22 (b) if the specified information is in or on a document -- to
23 have, and make and retain copies of, that document.
24 (3) For the purposes of subsection (2), the Minister may --
25 (a) request the Director to give specified information to the
26 Minister; and
27 (b) request the Director to give to the Minister access to
28 specified information; and
29 (c) for the purpose of accessing specified information
30 requested under paragraph (b), be assisted by members
31 of the Complaints Office staff.
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s. 315
1 (4) The Director must --
2 (a) comply with a request made under subsection (3)(a)
3 or (b); and
4 (b) make members of the Complaints Office staff and
5 facilities of the Complaints Office available to the
6 Minister for the purpose of subsection (3)(c).
7 (5) This section does not entitle the Minister to have personal
8 information unless the information is about an individual who
9 consents to the Minister having the information.
10 Subdivision 3 -- Right to complain
11 315. Who may complain
12 (1) A complaint about a service provider referred to in
13 section 320(1) alleging that the service provider acted, or failed
14 to act, in a manner referred to in section 320(2) in respect of a
15 person who has or may have a mental illness, or in respect of a
16 carer of a person who has or may have a mental illness, may be
17 made to the Director --
18 (a) personally by the person who has or may have a mental
19 illness; or
20 (b) on behalf of the person who has or may have a mental
21 illness by --
22 (i) the person's representative recognised under
23 section 316(2); or
24 (ii) a service provider if section 318 applies; or
25 (iii) a registration board if section 319 applies.
26 (2) A complaint about a service provider referred to in
27 section 320(1) that is an applicable organisation (as defined in
28 the Carers Recognition Act 2004 section 4) alleging that the
29 service provider acted, or failed to act, in a manner referred to in
30 section 320(2)(g) in respect of a carer of a person who has or
31 may have a mental illness may be made to the Director --
32 (a) personally by the carer; or
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s. 316
1 (b) on behalf of the carer by a registration board if
2 section 319 applies.
3 (3) A complaint made under subsection (1)(a) may be made by --
4 (a) one person --
5 (i) on his or her own behalf; or
6 (ii) on behalf of himself or herself and another
7 person or other persons;
8 or
9 (b) 2 or more persons --
10 (i) on their own behalf; or
11 (ii) on behalf of themselves and another person or
12 other persons.
13 316. Representative of person with mental illness or carer
14 (1) In this section --
15 relative, of a complainant, means a family member of the
16 complainant referred to in section 281(2).
17 (2) The Director may, for the purposes of this Division, recognise
18 as the representative for a complainant --
19 (a) a person chosen by the complainant; or
20 (b) a person not chosen by the complainant if, in the
21 Director's opinion --
22 (i) the complainant is unable to complain himself or
23 herself and is unable to choose a person to be his
24 or her representative himself or herself; and
25 (ii) the prospective representative is a person who
26 has a sufficient interest in the subject matter of
27 the complaint;
28 or
29 (c) a person not chosen by the complainant if --
30 (i) the complainant has died; and
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s. 317
1 (ii) in the Director's opinion, the prospective
2 representative is a person who has a sufficient
3 interest in the subject matter of the complaint.
4 (3) The Director cannot recognise a person as the representative of
5 a complainant unless satisfied that the prospective
6 representative --
7 (a) is acting without remuneration or is a prescribed person
8 as defined in section 317(1); and
9 (b) if the prospective representative is not a relative of the
10 complainant -- has no financial interest in the outcome
11 of the complaint.
12 317. Representative must not be paid
13 (1) In this section --
14 prescribed person means --
15 (a) a mental health advocate; or
16 (b) a person designated under subsection (3) as a prescribed
17 person; or
18 (c) a person, or a person in a class of person, prescribed by
19 the regulations for this definition; or
20 (d) a legal practitioner who is being paid through a funding
21 arrangement with government to provide free legal
22 advice who is representing a person who has, or may
23 have, a mental illness or a carer of a person who has, or
24 may have, a mental illness.
25 (2) A person who is not a prescribed person must not demand or
26 receive any remuneration for acting, for the purposes of this
27 Division, as the representative of a person who has or may have
28 a mental illness or a carer of a person who has or may have a
29 mental illness.
30 Penalty:
31 (a) for a first offence, a fine of $1 000;
32 (b) for a second or subsequent offence, a fine of $10 000.
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s. 318
1 (3) The Director may designate in writing a person to be a
2 prescribed person if satisfied that it is appropriate to do so.
3 318. Service provider may complain on behalf of person with
4 mental illness or carer
5 (1) A complaint about a service provider referred to in
6 section 320(1) may be made by another service provider on
7 behalf of a person who has or may have a mental illness or if the
8 Director is satisfied that --
9 (a) the person has died; or
10 (b) because of the person's state of health or general
11 situation, it would be difficult or impossible for the
12 person to make a complaint.
13 (2) A complaint about a service provider referred to in
14 section 320(1) may be made by another service provider on
15 behalf of a carer of a person who has or may have a mental
16 illness or if the Director is satisfied that --
17 (a) the carer has died; or
18 (b) because of the carer's state of health or general situation,
19 it would be difficult or impossible for the carer to make
20 a complaint.
21 319. Registration board may complain on behalf of person with
22 mental illness or carer
23 A complaint about a service provider referred to in
24 section 320(1) may be made by a registration board on behalf of
25 a person who has or may have a mental illness or a carer of a
26 person who has or may have a mental illness if --
27 (a) the service provider is a health professional or other
28 person for whose professional or occupational
29 registration the registration board is responsible; and
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s. 320
1 (b) the registration board becomes aware that the health
2 professional or other person has acted, or failed to act, in
3 a manner referred to in section 320(2) in relation to the
4 person who has or may have a mental illness or the
5 carer.
6 320. Who and what can be complained about
7 (1) A complaint can only be about a service provider that, at the
8 time the subject matter of the complaint arose, was providing a
9 mental health service.
10 (2) A complaint can only allege that, after the date on which this
11 section comes into operation, a service provider --
12 (a) acted unreasonably by not providing a mental health
13 service; or
14 (b) acted unreasonably by providing a mental health
15 service; or
16 (c) acted unreasonably in the manner of providing a mental
17 health service; or
18 (d) acted unreasonably by denying or restricting access to
19 records kept by the service provider; or
20 (e) acted unreasonably in disclosing records or confidential
21 information; or
22 (f) failed to comply with the Charter of Mental Health Care
23 Principles; or
24 (g) failed to comply with the Carers Charter; or
25 (h) in respect of a complaint about a matter mentioned in
26 paragraphs (a) to (e) made to the service provider by a
27 person who has or may have a mental illness, acted
28 unreasonably by --
29 (i) not properly investigating the complaint or not
30 causing it to be properly investigated; or
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s. 321
1 (ii) not taking, or not causing to be taken, proper
2 action in relation to the complaint;
3 or
4 (i) acted unreasonably by charging an excessive fee; or
5 (j) acted unreasonably with respect to a fee.
6 321. Time for complaining
7 The Director must reject a complaint the subject matter of
8 which occurred more than 24 months before the day on which
9 the complaint is made unless, in the Director's opinion, the
10 complainant has shown good reason for the delay.
11 Subdivision 4 -- Initial procedures
12 322. How to complain
13 (1) A complaint may be made to the Director orally (including by
14 telephone) or in writing.
15 (2) The Director must require a complainant who makes a
16 complaint orally to confirm it in writing unless the complainant
17 satisfies the Director that there is good reason why it should not
18 be confirmed in writing.
19 (3) The Director --
20 (a) must require a complainant to provide his or her name;
21 and
22 (b) may require the complainant to provide other
23 information relating to the complainant's identity.
24 (4) The Director may require a complainant to provide more
25 information about the complaint within a time fixed by the
26 Director.
27 (5) The Director may reject a complaint if the complainant does not
28 comply with a requirement of the Director under
29 subsection (2), (3)(a) or (b) or (4).
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Division 3 Complaints to Director of Complaints Office
s. 323
1 323. Referral of complaint about excluded mental health service
2 (1) In this section --
3 excluded mental health service means a mental health service
4 that is provided without fee in a rescue or emergency situation.
5 (2) The Director may, with the written consent of the complainant,
6 refer a complaint relating to an excluded mental health service
7 to an appropriate person or body.
8 324. Withdrawal of complaint
9 (1) A complainant may withdraw the complaint at any time by
10 notifying the Director.
11 (2) If satisfied that the complainant has withdrawn the complaint,
12 the Director must stop dealing with the complaint under this
13 Division and must notify --
14 (a) if details of the complaint have been given to the
15 respondent under section 328(6)(b) -- the respondent of
16 the withdrawal; and
17 (b) if the complaint has been referred to another person or
18 body under section 323(2) or 329(4) -- that person or
19 body of the withdrawal.
20 325. Complainant should try to resolve matter
21 The Director may reject a complaint if the Director is not
22 satisfied that --
23 (a) if the complaint is made under section 315(1)(a)
24 or (2)(a), whether only on the complainant's own behalf
25 or also on behalf of one or more other complainants --
26 the complainant has taken reasonable steps himself or
27 herself to resolve the matter with the respondent; or
28 (b) if the complaint is made under section 315(1)(b)
29 or (2)(b) -- the person, service provider or registration
30 board who made the complaint on the complainant's
31 behalf has taken all reasonable steps to resolve the
32 matter with the respondent.
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s. 326
1 326. Complaint that is not to be dealt with by National Board
2 under Health Practitioner Regulation National Law (Western
3 Australia)
4 (1) In this section --
5 registered service provider means a registered provider as
6 defined in the Health and Disability Services (Complaints)
7 Act 1995 section 3(1).
8 (2) The Director may deal with a complaint relating to a registered
9 service provider under this Division if, because of the Health
10 Practitioner Regulation National Law (Western Australia)
11 section 150, the complaint is not to be dealt with by a National
12 Board under that Act.
13 327. Complaint that is being dealt with by National Board under
14 Health Practitioner Regulation National Law (Western
15 Australia)
16 (1) This section applies if, because of the Health Practitioner
17 Regulation National Law (Western Australia) section 150, a
18 complaint is being dealt with by a National Board under
19 that Act.
20 (2) The Director must, on or within 28 days after the day on which
21 the National Board begins dealing with the complaint, notify the
22 complainant that the National Board is dealing with it.
23 328. Preliminary decision by Director
24 (1) This section applies in relation to a complaint other than a
25 complaint that, because of the Health Practitioner Regulation
26 National Law (Western Australia) section 150, is to be dealt
27 with by a National Board under that Act.
28 (2) The Director must, on or within 28 days after the day on which
29 the Director receives the complaint or by the end of any
30 extension of that period under subsection (3), decide whether
31 and to what extent --
32 (a) to accept it; or
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Division 3 Complaints to Director of Complaints Office
s. 328
1 (b) to reject, defer or refer it under section 329.
2 (3) The Director may extend the period for making a decision under
3 subsection (2) from the end of the 28-day period referred to in
4 subsection (2) for a further period (not exceeding 28 days) if it
5 is for the benefit of the complainant to do so.
6 (4) To enable the Director to make a decision under subsection (2),
7 the Director may make such inquiries as the Director considers
8 appropriate.
9 (5) The Director must, on or within 14 days after the day on which
10 the Director makes a decision under subsection (2), take the
11 action required under subsection (6), (7) or (8).
12 (6) If the Director accepts the complaint, the Director must --
13 (a) give to the complainant written details of --
14 (i) the decision; and
15 (ii) if the Director decides under subsection (10)(a)
16 or (b) that the complaint is suitable to be dealt
17 with under section 331 or 332 -- the
18 arrangements made for negotiated settlement or
19 conciliation discussions between the complainant
20 and the respondent;
21 and
22 (b) give to the respondent written details of --
23 (i) the complaint; and
24 (ii) the decision; and
25 (iii) if the Director decides under subsection (10)(a)
26 or (b) that the complaint is suitable to be dealt
27 with under section 331 or 332 -- the
28 arrangements made for negotiated settlement or
29 conciliation discussions between the complainant
30 and the respondent; and
31 (iv) a written statement that the respondent may
32 make submissions to the Director.
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1 (7) If the Director rejects the complaint, the Director must give to
2 the complainant written details of the decision.
3 (8) If the Director defers or refers the complaint, the Director
4 must --
5 (a) give to the complainant written details of the decision;
6 and
7 (b) give to the respondent written details of --
8 (i) the complaint; and
9 (ii) the decision.
10 (9) If a complaint is accepted, the Director may give to the
11 respondent a written notice requiring the respondent to give to
12 the Director a written response to the complaint in accordance
13 with section 330.
14 (10) If a complaint is accepted, the Director must --
15 (a) attempt to negotiate a settlement of the complaint in
16 accordance with section 331; or
17 (b) refer the complaint for conciliation under section 332 if,
18 in the Director's opinion, it is suitable to be dealt with
19 under that provision; or
20 (c) investigate the complaint if, in the Director's opinion --
21 (i) it is not suitable to be dealt with under
22 section 331 or 332; and
23 (ii) an investigation is warranted, having regard to
24 the likely costs and benefits of the investigation.
25 (11) In giving details to the respondent under subsection (6)(b)
26 or (8)(b), the Director cannot disclose personal information
27 about the complainant if the Director considers that, because of
28 particular circumstances, the disclosure of the complainant's
29 identity --
30 (a) may result in the health, safety or welfare of the
31 complainant being put at risk; or
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1 (b) would prejudice the proper investigation of the
2 complaint.
3 (12) If later the Director becomes satisfied that the circumstances
4 described under subsection (11) no longer apply, the Director
5 must disclose the identity of the complainant to the respondent.
6 (13) If the Director decides that a complaint is not suitable to be
7 dealt with under section 331 or 332 and does not warrant
8 investigating, the Director must advise the complainant in
9 writing --
10 (a) of the decision; and
11 (b) that the Director will take no further action on the
12 complaint.
13 (14) The Director cannot try to settle a complaint while performing
14 functions under this section in relation to the complaint.
15 329. Rejection, deferral or referral of complaints
16 (1) The Director must reject a complaint that, in the Director's
17 opinion --
18 (a) is vexatious, trivial or without substance; or
19 (b) does not warrant any further action; or
20 (c) does not comply with this Division.
21 (2) The Director must reject a complaint to the extent that it relates
22 to an issue that has already been dealt with --
23 (a) under another provision of this Act; or
24 (b) under another written law; or
25 (c) under a law of the Commonwealth; or
26 (d) by a court.
27 (3) The Director must defer dealing with a complaint to the extent
28 that it relates to an issue that is being dealt with --
29 (a) under another provision of this Act; or
30 (b) under another written law; or
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1 (c) under a law of the Commonwealth; or
2 (d) by a court.
3 (4) If a complaint raises issues that, in the Director's opinion,
4 would be better dealt with under --
5 (a) another provision of this Act; or
6 (b) another written law,
7 the Director may, with the written consent of the complainant,
8 refer the complaint to the appropriate person or body to be dealt
9 with under that other provision or written law.
10 (5) The Director cannot refer a complaint under subsection (4) to --
11 (a) a National Board under the Health Practitioner
12 Regulation National Law (Western Australia); or
13 (b) a court.
14 Note for section 329:
15 Sections 326 and 327 set out what happens in relation to a complaint that
16 could be dealt with by a National Board under the Health Practitioner
17 Regulation National Law (Western Australia).
18 330. Response by respondent
19 (1) A respondent who is given details under section 328(6)(b) may
20 give the Director a written response to the complaint.
21 (2) A respondent who is given a notice under section 328(9) must
22 give the Director a written response to the complaint.
23 (3) Any response given under subsection (1) or (2) must be given to
24 the Director --
25 (a) on or within 28 days after the day on which the
26 respondent receives --
27 (i) the details given under section 328(6)(b); or
28 (ii) the notice given under section 328(9);
29 or
30 (b) by the end of any extension of that period under
31 subsection (4).
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1 (4) The Director may extend the period within which a response
2 must be given under subsection (1) or (2) for good reason.
3 (5) The Director may deal with a complaint under this Division
4 even if the respondent does not comply with subsection (3).
5 (6) Details of any breach of subsection (3) that, in the Director's
6 opinion, was committed without a reasonable excuse must be
7 included in the annual report submitted by the accountable
8 authority in respect of the Complaints Office under the
9 Financial Management Act 2006 Part 5.
10 (7) Evidence of anything said in a response given by a respondent
11 under this section is not admissible in proceedings before a
12 court or tribunal.
13 (8) Despite the Parliamentary Commissioner Act 1971
14 section 20(3), evidence referred to in subsection (7) may be
15 disclosed to the Parliamentary Commissioner for the purposes
16 of an investigation under that Act.
17 Subdivision 5 -- Negotiated settlements and conciliation
18 331. Resolving complaints by negotiation
19 (1) Having accepted a complaint and complied with section 328(6),
20 the Director may, by negotiating with the complainant and the
21 respondent, attempt to bring about a settlement of the complaint
22 that is acceptable to the parties to it.
23 (2) For the purposes of subsection (1), the Director may make any
24 inquiries the Director considers appropriate.
25 (3) If the complaint is not settled under subsection (1) on or within
26 56 days after the day on which the Director complies with
27 section 328(6) or by the end of any extension of that period
28 under subsection (4), the Director must --
29 (a) refer it for conciliation under section 332 if, in the
30 Director's opinion, it is suitable to be dealt with under
31 that provision; or
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1 (b) investigate it if, in the Director's opinion --
2 (i) it is not suitable to be dealt with under
3 section 332; and
4 (ii) an investigation is warranted, having regard to
5 the likely costs and benefits of the investigation.
6 (4) The Director may extend the period for attempting to bring
7 about a negotiated settlement if it is for the benefit of the
8 complainant to do so.
9 (5) If the Director decides a complaint is not suitable to be dealt
10 with under section 332 and does not warrant investigating, the
11 Director must advise the complainant in writing --
12 (a) of the decision; and
13 (b) that the Director will take no further action on the
14 complaint.
15 (6) Evidence of anything said or admitted during any negotiation
16 conducted under subsection (1) is not admissible in proceedings
17 before a court or tribunal.
18 (7) Despite the Parliamentary Commissioner Act 1971
19 section 20(3), evidence referred to in subsection (6) may be
20 disclosed to the Parliamentary Commissioner for the purposes
21 of an investigation under that Act.
22 332. Conciliation of complaints
23 (1) On referring a complaint for conciliation, the Director must
24 assign the task of conciliating the complaint to a member of the
25 Complaints Office staff whose duties consist of or include the
26 conciliation of complaints.
27 (2) A conciliator's function is to encourage the settlement of the
28 complaint by --
29 (a) arranging for the complainant and the respondent to hold
30 informal discussions about the complaint; and
31 (b) helping in the conduct of those discussions; and
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1 (c) if possible, assisting the complainant and the respondent
2 to reach agreement.
3 (3) Except as provided by subsections (4) and (5), neither the
4 complainant nor the respondent may be represented by another
5 person during the conciliation process.
6 (4) The complainant may be represented by the complainant's
7 representative recognised under section 316(2).
8 (5) The Director may allow either or both the complainant and the
9 respondent to be represented if the Director is satisfied that the
10 process will not work effectively otherwise.
11 (6) Subsections (3), (4) and (5) do not prevent the personal
12 attendance of any other person who may, in the opinion of the
13 conciliator, help in the conciliation.
14 (7) Evidence of anything said or admitted during the conciliation
15 process is not admissible in proceedings before a court or
16 tribunal.
17 (8) Despite the Parliamentary Commissioner Act 1971
18 section 20(3), evidence referred to in subsection (7) may be
19 disclosed to the Parliamentary Commissioner for the purposes
20 of an investigation under that Act.
21 (9) If the conciliation process results in the settlement of a
22 complaint between the complainant and the respondent, the
23 conciliator must make a final report to the Director about the
24 result of that process.
25 (10) A report made under subsection (9) must include details of any
26 agreement reached.
27 (11) If the conciliation process fails to result in the settlement of a
28 complaint between the complainant and the respondent, the
29 Director may investigate the complaint if, in the Director's
30 opinion, an investigation is warranted, having regard to the
31 likely costs and benefits of the investigation.
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1 Subdivision 6 -- Investigations
2 333. Conduct generally
3 (1) The Director may at any time during an investigation encourage
4 the settlement of a complaint.
5 (2) The purpose of an investigation is to enable the Director to
6 decide whether or not a service provider has acted, or failed to
7 act, in a manner referred to in section 320(2).
8 (3) In making a decision under subsection (2), the Director must
9 have regard to the following --
10 (a) any treatment, support and discharge plan that is
11 relevant to the investigation;
12 (b) the generally accepted quality of service delivery
13 expected of a service provider;
14 (c) any standards for the provision of mental health services
15 that are prescribed by the regulations for this subsection;
16 (d) the Charter of Mental Health Care Principles;
17 (e) the Carers Charter.
18 (4) In conducting an investigation, the Director --
19 (a) must proceed with as little formality and technicality,
20 and as speedily, as the requirements of this Part and
21 proper investigation of the matter permits; and
22 (b) is not bound by the rules of evidence but may inform
23 himself or herself of any matter in such manner as he or
24 she considers appropriate; and
25 (c) may, subject to this Part and the rules of natural justice,
26 determine his or her own procedures.
27 (5) In conducting an investigation, the Director may be assisted by
28 members of the Complaints Office staff.
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1 334. Power to require information and records
2 (1) In this section --
3 person's representative means --
4 (a) the person's representative recognised under
5 section 316(2); or
6 (b) the person's enduring guardian or guardian; or
7 (c) if the person is a child -- the child's parent or guardian;
8 relevant information means information that, in the Director's
9 opinion, is or is likely to be relevant to an investigation;
10 relevant record means a record of information (however
11 compiled, recorded or stored) that is relevant to an investigation.
12 (2) The Director may, by written notice given to a person, require
13 the person to do one or both of the following --
14 (a) provide the Director with a statement signed by the
15 person or, if the person is a body corporate, by an officer
16 of the body corporate, containing the relevant
17 information specified in the notice;
18 (b) produce to the Director the relevant records specified in
19 the notice.
20 (3) The Director cannot give a notice to a person under
21 subsection (2) unless the Director reasonably believes that the
22 person is capable of providing the relevant information or
23 producing the relevant records.
24 (4) A notice under subsection (2) must specify the time and place
25 for providing the relevant information or producing the relevant
26 records.
27 (5) The Director may do any of these things in relation to a relevant
28 record that is produced in accordance with a notice under
29 subsection (2) --
30 (a) take possession of and retain the record for the period
31 that is reasonably necessary for the purposes of the
32 investigation;
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1 (b) inspect, and take a copy of the whole or any part of, the
2 record.
3 (6) While the Director retains possession of a relevant record, the
4 Director must permit a person who would be entitled to inspect
5 the record if it were not in the Director's possession to inspect
6 the record at any reasonable time and to take a copy of the
7 whole or any part of the record.
8 (7) This section does not prevent a person from --
9 (a) refusing to provide relevant information, or to produce a
10 relevant record, because it contains information in
11 respect of which there is legal professional privilege; or
12 (b) refusing to produce a medical record unless --
13 (i) the medical record relates to the subject matter of
14 the complaint; and
15 (ii) the person to whom the medical record relates, or
16 the person's representative, has consented to the
17 disclosure of information in the medical record.
18 (8) A person who is given a notice under subsection (2) commits an
19 offence if the person --
20 (a) without reasonable excuse, proof of which is on the
21 person, does not provide relevant information or
22 produce a relevant record in accordance with the notice;
23 or
24 (b) in purporting to comply with a requirement under
25 subsection (2)(a) in the notice, provides relevant
26 information that the person knows is false or misleading
27 in a material particular; or
28 (c) in purporting to comply with a requirement under
29 subsection (2)(b) in the notice, makes available a
30 relevant record that the person knows is false or
31 misleading in a material particular --
32 (i) without indicating that the record is false or
33 misleading and, to the extent the person can, how
34 the record is false or misleading; and
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1 (ii) if the person has or can reasonably obtain the
2 correct information -- without providing the
3 correct information.
4 Penalty: a fine of $6 000.
5 (9) It is enough for a prosecution notice lodged against a person for
6 an offence under subsection (8)(b) or (c) to state that the
7 relevant information or relevant record was false or misleading
8 to the person's knowledge without stating which.
9 335. Warrant to enter and inspect premises
10 (1) The Director may apply for a warrant under the Health and
11 Disability Services (Complaints) Act 1995 section 63 in respect
12 of premises if the Director reasonably believes that the entry
13 and inspection of those premises is necessary for the purposes
14 of an investigation.
15 (2) The Health and Disability Services (Complaints) Act 1995
16 Part 4 applies (with the necessary changes) in relation to --
17 (a) an application made under subsection (1) for a warrant;
18 and
19 (b) the execution of any warrant issued in respect of such an
20 application.
21 (3) An offence under the Health and Disability Services
22 (Complaints) Act 1995 section 66 as applied by
23 subsection (2)(b) is punishable by a fine not exceeding $6 000.
24 336. Conciliator cannot investigate
25 A person who under section 332 has conciliated, or attempted to
26 conciliate, a complaint cannot investigate that complaint.
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1 Subdivision 7 -- Consequences of investigation
2 337. What Director must do on completing investigation
3 (1) On completing an investigation, the Director must --
4 (a) decide whether or not a service provider has acted, or
5 failed to act, in a manner referred to in section 320(2);
6 and
7 (b) give written notice of the decision to --
8 (i) if a complaint was investigated -- the
9 complainant and the respondent; or
10 (ii) if the investigation was conducted under
11 section 341 -- the Minister and any person
12 affected by the decision.
13 (2) The written notice must be given on or within 14 days after the
14 day on which the Director makes the decision.
15 (3) The written notice must specify --
16 (a) the reasons for the decision; and
17 (b) if the Director has decided that a service provider has
18 acted, or failed to act, in a manner referred to in
19 section 320(2) -- any action that the Director
20 recommends ought to be taken to remedy the matter by
21 the respondent or any other person.
22 (4) Before recommending action that ought to be taken to remedy
23 the matter by the respondent or another person, the Director
24 must consult --
25 (a) the respondent or that other person; and
26 (b) if any action that the Director considers ought to be
27 taken to remedy the matter is likely to have an impact on
28 people other than the respondent or that other person --
29 a group of those people.
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1 338. Respondent or other person to report on remedial action
2 (1) This section applies if the respondent or other person receives
3 written notice of the decision under section 337(1)(b)
4 recommending remedial action be taken by the respondent or
5 other person.
6 (2) The respondent or other person must give a written report about
7 what remedial action the respondent or other person has taken to
8 the Director --
9 (a) on or within 45 days after the day on which the
10 respondent or other person receives the notice; or
11 (b) by the end of any extension of that period under
12 subsection (4).
13 Penalty: a fine of $2 500.
14 (3) The respondent or other person may, before the expiry of the
15 45-day period, request the Director to extend the period within
16 which the respondent or other person must report under
17 subsection (2).
18 (4) The Director may, if requested by the respondent or other
19 person under subsection (3), extend the period within which the
20 respondent or other person must report under subsection (2)
21 from the end of the 45-day period for a further period (not
22 exceeding 15 days) if the Director considers it appropriate to
23 do so.
24 339. Report not provided or remedial action not taken: report to
25 Parliament
26 (1) The Director must, if the respondent or other person does not
27 report in accordance with section 338 about what remedial
28 action has been taken, give to the Minister --
29 (a) a copy of the decision; and
30 (b) a written report about the refusal or failure by the
31 respondent or other person to so report.
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1 (2) The Director must, if the respondent or other person does not
2 take the remedial action recommended within a time that, in the
3 Director's opinion, is reasonable, give to the Minister --
4 (a) a copy of the decision; and
5 (b) a written report about the refusal or failure by the
6 respondent or other person to take the remedial action.
7 (3) The Director cannot include in a document given to the Minister
8 under subsection (1) or (2) personal information about a
9 complainant except with the consent of the complainant.
10 (4) The Minister may cause a copy of each of the documents given
11 to the Minister under subsection (1) or (2) to be laid before each
12 House of Parliament.
13 Subdivision 8 -- Other matters relating to investigations
14 340. Director to stop if other proceedings begun
15 (1) The Director must stop investigating or otherwise dealing with a
16 complaint to the extent that it relates to an issue that the
17 Director becomes aware is being dealt with --
18 (a) under another provision of this Act; or
19 (b) under another written law; or
20 (c) under a law of the Commonwealth; or
21 (d) in a court.
22 (2) The Director must, on or within 14 days after the day on which
23 the Director stops dealing with an issue under subsection (1),
24 give written notice of that fact to --
25 (a) the complainant; and
26 (b) the respondent.
27 (3) The Director may resume dealing with an issue that the Director
28 stopped dealing with under subsection (1) if the Director
29 becomes aware that the issue --
30 (a) is no longer being dealt with under that other provision
31 or law or by that court; but
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1 (b) has not been resolved.
2 341. Minister may refer matters for investigation
3 The Minister may direct the Director to conduct an investigation
4 under Subdivision 6 in accordance with a reference specified by
5 the Minister if, in the Minister's opinion --
6 (a) circumstances exist in relation to a person who has or
7 may have a mental illness that would justify a complaint
8 being made under this Division; or
9 (b) it is in the public interest on a matter of general
10 importance relating to mental health that an
11 investigation be carried out.
12 342. Confidentiality
13 (1) A person must not (whether directly or indirectly) record,
14 disclose or use any information obtained by the person because
15 the person is or was --
16 (a) a person to whom --
17 (i) details are or were given under section 328(6),
18 (7) or (8); or
19 (ii) a disclosure is or was made under
20 section 328(12);
21 or
22 (b) a person, or a member, officer, employee or agent, of a
23 body, to whom a complaint is or was referred under
24 section 329(4); or
25 (c) a participant in a conciliation under section 332; or
26 (d) a participant in an investigation; or
27 (e) a person to whom the information is or was provided by
28 a complainant or respondent for the purpose of
29 providing the complainant or respondent with a report
30 for use by the complainant or respondent in pursuing or
31 responding to a complaint; or
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s. 343
1 (f) a person who is or was given notice of a decision under
2 section 337(1)(b).
3 Penalty: a fine of $5 000.
4 (2) Subsection (1) does not apply in relation to the recording,
5 disclosure or use of statistical or other information that is not
6 personal information.
7 (3) A person does not commit an offence under subsection (1) if the
8 recording, disclosure or use of the information is authorised
9 under section 575(1).
10 Division 4 -- Miscellaneous matters
11 343. Reports to Parliament
12 (1) The Director may at any time lay a report before each House of
13 Parliament on any matter that the Director considers
14 necessary --
15 (a) arising from an individual complaint made to the
16 Director under Division 3 Subdivision 3 or an
17 investigation; or
18 (b) in relation to the performance of the Director's functions
19 under this Part.
20 (2) The Director cannot include in a report prepared under
21 subsection (1) personal information about a person who has or
22 may have a mental illness except with the consent of the person.
23 (3) This section does not limit the Financial Management Act 2006
24 Part 5.
25 344. False or misleading information or documents
26 (1) A person commits an offence if the person --
27 (a) gives to the Director or a member of the Complaints
28 Office staff information that the person knows is false or
29 misleading in a material particular; or
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1 (b) makes available to the Director or a member of the
2 Complaints Office staff a document that the person
3 knows is false or misleading in a material particular --
4 (i) without indicating that the document is false or
5 misleading and, to the extent the person can, how
6 the document is false or misleading; and
7 (ii) if the person has or can reasonably obtain the
8 correct information -- without providing the
9 correct information.
10 Penalty: a fine of $6 000.
11 (2) It is enough for a prosecution notice lodged against a person for
12 an offence under subsection (1)(a) or (b) to state that the
13 information or document was false or misleading to the person's
14 knowledge without stating which.
15 345. Person must not be penalised because of complaint or
16 investigation
17 (1) In this section --
18 complaint means a complaint made --
19 (a) to a service provider in accordance with the service
20 provider's complaints procedure referred to in
21 section 308; or
22 (b) to the Director under Division 3 Subdivision 3;
23 prejudicial conduct, in relation to a person, means --
24 (a) refusing to employ the person; or
25 (b) dismissing the person from employment; or
26 (c) subjecting the person to any detriment.
27 (2) A person must not, by threats or intimidation, persuade or
28 attempt to persuade another person --
29 (a) not to make a complaint; or
30 (b) to withdraw a complaint; or
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1 (c) not to continue proceedings under Division 3 in respect
2 of a complaint; or
3 (d) not to provide information to, or not to otherwise assist,
4 the Director or a member of the Complaints Office staff
5 in performing functions under this Part.
6 Penalty: a fine of $2 500.
7 (3) A person must not engage in prejudicial conduct in relation to
8 another person because the other person --
9 (a) intends to make a complaint; or
10 (b) has made a complaint; or
11 (c) intends to take part in, is taking part in or has taken part
12 in proceedings under Division 3 in respect of a
13 complaint or an investigation.
14 Penalty for this subsection: a fine of $2 500.
15 346. Registers: complaints, matters directed to be investigated
16 (1) The Director must establish and maintain --
17 (a) a register of complaints reported to the Director under
18 section 309(2); and
19 (b) a register of complaints made to the Director under
20 Division 3 Subdivision 3; and
21 (c) a register of matters the subject of a direction to conduct
22 an investigation under section 341.
23 (2) Each register must be established and maintained in the manner
24 determined by the Director.
25 (3) The form and contents of each register must be determined by
26 the Director.
27 347. Delegation by Director
28 (1) The Director may delegate to a member of the Complaints
29 Office staff any power or duty of the Director under another
30 provision of this Part.
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1 (2) The delegation must be in writing signed by the Director.
2 (3) A person to whom a power or duty is delegated under this
3 section cannot delegate that power or duty.
4 (4) A person exercising or performing a power or duty that has been
5 delegated to the person under this section is taken to do so in
6 accordance with the terms of the delegation unless the contrary
7 is shown.
8 (5) This section does not limit the ability of the Director to perform
9 a function through an officer or agent.
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1 Part 20 -- Mental health advocacy services
2 Division 1 -- Preliminary matters
3 348. Terms used
4 In this Part --
5 identified person means any of these people --
6 (a) a person who is referred under section 26(2) or (3)(a)
7 or 36(2) for an examination to be conducted by a
8 psychiatrist;
9 (b) a voluntary inpatient who is under an order made under
10 section 34(1) for the assessment of the voluntary patient;
11 (c) a person who is under an order made under
12 section 55(1)(c) or 61(1)(c) to enable an examination to
13 be conducted by a psychiatrist;
14 (d) an involuntary patient;
15 (e) a person who is under a hospital order made under the
16 MIA Act section 5(2);
17 (f) a mentally impaired accused required under the
18 MIA Act to be detained at an authorised hospital;
19 (g) a mentally impaired accused who has been released
20 under a release order made under the MIA Act
21 section 35(1) on a condition imposed under
22 section 35(4)(a) of that Act that the mentally impaired
23 accused undergo treatment as defined in section 4 of this
24 Act;
25 (h) a person who is, for the purposes of the Hospitals and
26 Health Services Act 1927 Part IIIB, a resident of a
27 private psychiatric hostel;
28 (i) a person who --
29 (i) has or may have a mental illness; and
30 (ii) is being provided with treatment or care by a
31 body or organisation that is prescribed by the
32 regulations for this paragraph;
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s. 349
1 (j) a voluntary patient who is not a person referred to in
2 paragraphs (a) to (e) or paragraph (h) or (i), but only if
3 the voluntary patient is in a class that the Minister
4 directs under section 354 is a class of identified person
5 for the purposes of this paragraph;
6 mental health service includes a private psychiatric hostel.
7 Division 2 -- Mental health advocates: appointment or
8 engagement, functions and powers
9 Subdivision 1 -- Appointment or engagement, functions and powers
10 349. Chief Mental Health Advocate
11 There is to be a Chief Mental Health Advocate who is appointed
12 by the Minister.
13 350. Other mental health advocates
14 (1) The Chief Mental Health Advocate must engage under a
15 contract for services one or more persons to be mental health
16 advocates.
17 (2) At least one mental health advocate (a youth advocate) engaged
18 under subsection (1) must have qualifications, training or
19 experience relevant to children and young people.
20 (3) A mental health advocate engaged under subsection (1) may
21 have qualifications, training or experience relevant to a
22 particular group in the community.
23 (4) Otherwise, any person can be engaged under subsection (1).
24 351. Functions of Chief Mental Health Advocate
25 (1) The functions of the Chief Mental Health Advocate are --
26 (a) ensuring that identified persons are visited or otherwise
27 contacted in accordance with section 357; and
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functions and powers
s. 352
1 (b) promoting compliance with the Charter of Mental
2 Health Care Principles by mental health services; and
3 (c) preparing and publishing information about, and
4 promoting, the role of mental health advocates and how
5 to contact the Chief Mental Health Advocate; and
6 (d) developing standards and protocols for the performance
7 by mental health advocates of their functions under this
8 Act; and
9 (e) ensuring that mental health advocates receive adequate
10 training in relation to the performance of their functions
11 under this Act; and
12 (f) providing advice, assistance, control and direction to
13 mental health advocates engaged under section 350(1) in
14 relation to the performance of their functions under this
15 Act; and
16 (g) ensuring compliance with any directions given by the
17 Minister under section 354(1) or the Chief Mental
18 Health Advocate under paragraph (f); and
19 (h) any other functions conferred on the Chief Mental
20 Health Advocate by this Act or another written law.
21 (2) The function of the Chief Mental Health Advocate under
22 subsection (1)(c) does not include the publication of personal
23 information about a person who has or may have a mental
24 illness.
25 352. Functions of mental health advocates
26 (1) The functions of a mental health advocate are --
27 (a) visiting or otherwise contacting identified persons in
28 accordance with section 357; and
29 (b) inquiring into or investigating any matter relating to the
30 conditions of mental health services that is adversely
31 affecting, or is likely to adversely affect, the health,
32 safety or wellbeing of identified persons; and
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s. 352
1 (c) inquiring into or investigating the extent to which
2 identified persons have been informed by mental health
3 services of their rights under this Act and the extent to
4 which those rights have been observed; and
5 (d) inquiring into and seeking to resolve complaints made to
6 mental health advocates about the detention of identified
7 persons at, or the treatment or care that is being
8 provided to identified persons by, mental health
9 services; and
10 (e) referring any issues arising out of the performance of a
11 function under paragraph (b), (c) or (d) to the
12 appropriate persons or bodies to deal with those issues,
13 including to the Chief Mental Health Advocate under
14 section 363(2); and
15 (f) assisting identified persons to protect and enforce their
16 rights under this Act; and
17 (g) assisting identified persons to access legal services; and
18 (h) in consultation with the medical practitioners and mental
19 health practitioners responsible for their treatment and
20 care, advocating for and facilitating access by identified
21 persons to other services; and
22 (i) any other functions conferred on a mental health
23 advocate by this Act or another written law.
24 (2) For the purposes of subsection (1)(d), a complaint may be made
25 to a mental health advocate by a person who has a sufficient
26 interest in the identified person concerned.
27 (3) The performance by a mental health advocate of the function
28 under subsection (1)(e) includes --
29 (a) assisting an identified person to make a complaint under
30 Part 19 to --
31 (i) the person in charge of a mental health service;
32 or
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s. 353
1 (ii) the Director of the Complaints Office;
2 and
3 (b) being an identified person's representative in respect of
4 a complaint referred to in paragraph (a)(ii) if recognised
5 as the identified person's representative under
6 section 316(2).
7 (4) The performance by a mental health advocate of the function
8 under subsection (1)(f) includes --
9 (a) assisting an identified person in relation to any
10 application made under this Act in respect of the
11 identified person to, and in relation to any proceedings
12 under this Act in respect of the identified person before,
13 the Mental Health Tribunal or the State Administrative
14 Tribunal; and
15 (b) if authorised under this Act -- representing an identified
16 person in any proceedings under this Act in respect of
17 the identified person before the Mental Health Tribunal
18 or the State Administrative Tribunal.
19 (5) In performing a function under this section, a mental health
20 advocate engaged under section 350(1) is subject to the general
21 direction and control of the Chief Mental Health Advocate.
22 353. Powers generally
23 In addition to the specific powers conferred on a mental health
24 advocate by this Act or another written law, a mental health
25 advocate may do anything necessary or convenient for the
26 performance of the functions conferred on the mental health
27 advocate by this Act or another written law.
28 354. Directions to Chief Mental Health Advocate about general
29 matters
30 (1) The Minister may, after consultation with the Chief Mental
31 Health Advocate, issue written directions about the general
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1 policy to be followed by the Chief Mental Health Advocate in
2 performing functions under this Act.
3 (2) The Chief Mental Health Advocate may request the Minister to
4 issue a direction under subsection (1).
5 (3) A direction cannot be issued under this section in respect of --
6 (a) a particular identified person; or
7 (b) a particular mental health service; or
8 (c) any other particular person or body.
9 (4) The Chief Mental Health Advocate must comply with a
10 direction issued under this section.
11 (5) The power to issue a direction under this section includes the
12 power to amend, replace or revoke the direction and that power
13 is exercisable in the same manner, and is subject to the same
14 conditions, as the power to issue the direction.
15 (6) The Minister must cause the text of a direction issued under this
16 section to be laid before each House of Parliament on or within
17 14 sitting days of the House after the day on which the direction
18 is issued.
19 (7) The text of a direction issued under this section must be
20 included in the Chief Mental Health Advocate's annual report
21 prepared under section 377.
22 355. Directions to Chief Mental Health Advocate to report on
23 particular issues
24 (1) The Minister may issue a written direction requiring the Chief
25 Mental Health Advocate --
26 (a) to report to the Minister about the provision of treatment
27 or care by a particular mental health service to a
28 particular person; or
29 (b) to ensure that a particular mental health service is visited
30 by a mental health advocate and to report to the Minister
31 on the visit.
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1 (2) The Chief Mental Health Advocate must comply with a
2 direction issued under this section.
3 (3) The power to issue a direction under this section includes the
4 power to amend, replace or revoke the direction and that power
5 is exercisable in the same manner, and is subject to the same
6 conditions, as the power to issue the direction.
7 (4) The Minister must cause the text of a direction issued under this
8 section to be laid before each House of Parliament on or within
9 14 sitting days of the House after the day on which the direction
10 is issued.
11 (5) The text of a direction issued under this section must be
12 included in the Chief Mental Health Advocate's annual report
13 prepared under section 377.
14 (6) The Minister must cause the text of a report provided by the
15 Chief Mental Health Advocate in response to a direction issued
16 under this section to be laid before each House of Parliament on
17 or within 14 sitting days of the House after the day on which the
18 report is provided.
19 (7) The text of a report provided by the Chief Mental Health
20 Advocate in response to a direction issued under this section
21 must be included in the Chief Mental Health Advocate's annual
22 report prepared under section 377.
23 (8) Subsections (4) to (7) do not authorise the publication of
24 personal information about a person.
25 Subdivision 2 -- Contacting identified person or person with
26 sufficient interest
27 356. Request to contact identified person
28 (1) A request for an identified person to be contacted by a mental
29 health advocate may be made by --
30 (a) the identified person; or
31 (b) the identified person's psychiatrist; or
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s. 357
1 (c) a person who has a sufficient interest in the identified
2 person.
3 (2) The request may be made to --
4 (a) the mental health service where the identified person is
5 being detained or that is providing treatment or care to
6 the identified person; or
7 (b) the Chief Mental Health Advocate.
8 (3) If the request is made to the mental health service, the person in
9 charge of the mental health service must ensure that the Chief
10 Mental Health Advocate is notified of the request as soon as
11 practicable and, in any event, within 24 hours after the time
12 when the request was made.
13 357. Duty to contact identified person
14 (1) An identified person under paragraph (a), (b) or (c) of the
15 definition of identified person in section 348 who is detained
16 under section 28(1) or (2), 34(1), 52(1)(b), 53(1), 58(1)(b),
17 59(2), 62(1) or (2) or 70(1)(b) must be visited or otherwise
18 contacted by a mental health advocate as soon as practicable
19 and, in any event, on or within 3 days after the day on which the
20 Chief Mental Health Advocate receives a request under
21 section 356(2)(b), or is notified of a request under
22 section 356(3), for the person to be contacted.
23 (2) An identified person under paragraph (d) of the definition of
24 identified person in section 348 who is under an involuntary
25 treatment order made on or after the day on which this section
26 commences must be visited or otherwise contacted by a mental
27 health advocate --
28 (a) if, when the order is made, the person is an adult -- on
29 or within 7 days after the day on which the involuntary
30 treatment order is made; or
31 (b) if, when the order is made, the person is a child --
32 within 24 hours after the time when the involuntary
33 treatment order is made.
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functions and powers
s. 357
1 (3) An identified person under paragraph (d) of the definition of
2 identified person in section 348 who is under an involuntary
3 treatment order made --
4 (a) before the day on which this section commences; or
5 (b) on or after the day on which this section commences that
6 has been in force for more than 7 days from the day on
7 which the order is made,
8 must be visited or otherwise contacted by a mental health
9 advocate on or as soon as practicable after the day on which the
10 Chief Mental Health Advocate receives a request under
11 section 356(2)(b), or is notified of a request under
12 section 356(3), for the person to be contacted.
13 (4) An identified person under paragraph (f) of the definition of
14 identified person in section 348 who is detained at an
15 authorised hospital under the MIA Act on or after the day on
16 which this section commences must be visited or otherwise
17 contacted by a mental health advocate --
18 (a) if, when detained, the person is an adult -- on or within
19 7 days after the day on which the person is detained; or
20 (b) if, when detained, the person is a child -- within
21 24 hours after the time when the person is detained.
22 (5) An identified person under paragraph (f) of the definition of
23 identified person in section 348 --
24 (a) who was detained at an authorised hospital under the
25 MIA Act before the day on which this section
26 commences; or
27 (b) who is detained at an authorised hospital under the
28 MIA Act on or after the day on which this section
29 commences for more than 7 days,
30 must be visited or otherwise contacted by a mental health
31 advocate on or as soon as practicable after the day on which the
32 Chief Mental Health Advocate receives a request under
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s. 358
1 section 356(2)(b), or is notified of a request under
2 section 356(3), for the person to be contacted.
3 (6) An identified person under paragraph (e), (g), (h) or (i) of the
4 definition of identified person in section 348 must be visited or
5 otherwise contacted by a mental health advocate on or as soon
6 as practicable after the day on which the Chief Mental Health
7 Advocate receives a request under section 356(2)(b), or is
8 notified of a request under section 356(3), for the person to be
9 contacted and, in any event, within 7 days after that day.
10 (7) An identified person under paragraph (j) of the definition of
11 identified person in section 348 must be visited or otherwise
12 contacted by a mental health advocate on or within a reasonable
13 time after the day on which the Chief Mental Health Advocate
14 receives a request under section 356(2)(b), or is notified of a
15 request under section 356(3), for the person to be contacted.
16 (8) Despite subsections (6) and (7), an identified person under
17 paragraph (e), (g), (h), (i) or (j) of the definition of identified
18 person in section 348 who is a child must be visited or
19 otherwise contacted by a mental health advocate on or within
20 24 hours after the day on which the Chief Mental Health
21 Advocate receives a request under section 356(2)(b), or is
22 notified of a request under section 356(3), for the person to be
23 contacted.
24 358. Contact on mental health advocate's own initiative
25 In addition to any requirement under section 357 to contact an
26 identified person, a mental health advocate may, subject to any
27 direction of the Chief Mental Health Advocate under
28 section 359(3), visit or otherwise contact an identified person at
29 any time.
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s. 359
1 Subdivision 3 -- Specific powers of mental health advocates
2 359. Specific powers of mental health advocates
3 (1) The powers of a mental health advocate include these powers --
4 (a) visiting, at any time and for as long as the mental health
5 advocate considers appropriate, a mental health service
6 at which one or more identified persons are being
7 detained or that is providing treatment or care to one or
8 more identified persons;
9 (b) inspecting any part of a mental health service that the
10 mental health advocate visits;
11 (c) seeing and speaking with an identified person unless the
12 identified person objects to the mental health advocate
13 doing so;
14 (d) making inquiries about any of these things --
15 (i) the admission or reception of an identified
16 person by a mental health service or other place;
17 (ii) the referral of an identified person for an
18 examination to be conducted by a psychiatrist at
19 a mental health service or other place;
20 (iii) the detention of an identified person at a mental
21 health service or other place;
22 (iv) the provision of treatment or care to an identified
23 person by a mental health service or other place;
24 (e) requiring a staff member of a mental health service or
25 other place to do any of these things --
26 (i) answer questions or provide information in
27 response to any inquiry made about a matter
28 referred to in paragraph (d)(i) to (iv);
29 (ii) make available any document that the mental
30 health advocate may inspect, or take a copy of,
31 under paragraph (f) or (g);
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Division 2 Mental health advocates: appointment or engagement,
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s. 360
1 (iii) give reasonable assistance to the mental health
2 advocate in the exercise of a power under this
3 subsection;
4 (f) inspecting and taking a copy of the whole or any part of
5 the medical record of, or any other document about, an
6 identified person that is held by the mental health
7 service unless the identified person objects to the mental
8 health advocate doing so;
9 (g) inspecting and taking a copy of the whole or any part of
10 any document, or any document in a class of document,
11 that is held by the mental health service and is
12 prescribed by the regulations.
13 (2) A mental health advocate cannot exercise a power under
14 subsection (1)(c) or (f) in relation to an identified person who is
15 a voluntary patient without the consent of --
16 (a) the identified person; or
17 (b) if the identified person does not have the capacity to
18 consent to the power being exercised in relation to him
19 or her -- the person who is authorised by law to consent
20 to the provision of treatment or care to the identified
21 person.
22 (3) The exercise by a mental health advocate of any power under
23 subsection (1) is subject to the direction of the Chief Mental
24 Health Advocate.
25 360. Documents to which access is restricted
26 (1) This section applies if an identified person is not entitled under
27 section 248(1) to have access to a document because the
28 identified person has been refused access to the document for a
29 reason referred to in section 249(1)(a).
30 (2) The person in charge of a mental health service must ensure
31 that, before a staff member of the mental health service
32 complies with any requirement of a mental health advocate
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s. 361
1 under section 359(1)(e)(ii) to make available the document, the
2 mental health advocate is advised --
3 (a) that the identified person has been refused access to the
4 document for a reason referred to in section 249(1)(a);
5 and
6 (b) that it is an offence under section 361 for the mental
7 health advocate to disclose any information in the
8 relevant document to the identified person.
9 (3) The person in charge of a mental health service must record on
10 an identified person's medical record or other file any advice
11 given to a mental health advocate under subsection (2) about the
12 matters referred to in subsection (2)(a) and (b).
13 361. Disclosure by mental health advocate
14 A mental health advocate who under section 359(1)(f) inspects,
15 or takes a copy of the whole or any part of, a document must not
16 disclose any information in the document if --
17 (a) the identified person to whom the document relates has
18 been refused access to the document for a reason
19 referred to in section 249(1)(a); and
20 (b) before the document was made available to the mental
21 health advocate in compliance with a requirement by the
22 mental health advocate under section 359(1)(e)(ii), the
23 mental health advocate was advised of the matters
24 referred to in section 360(2)(a) and (b).
25 Penalty: a fine of $5 000.
26 362. Interfering with exercise of powers
27 (1) A person commits an offence if the person --
28 (a) without reasonable excuse, proof of which is on the
29 person, does not answer a question or provide
30 information when required under section 359(1)(e)(i); or
31 (b) in purporting to comply with a requirement under
32 section 359(1)(e)(i), gives an answer or provides
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s. 363
1 information that the person knows is false or misleading
2 in a material particular; or
3 (c) in purporting to comply with a requirement under
4 section 359(1)(e)(ii), makes available a document that
5 the person knows is false or misleading in a material
6 particular --
7 (i) without indicating that the document is false or
8 misleading and, to the extent the person can, how
9 the document is false or misleading; and
10 (ii) if the person has or can reasonably obtain the
11 correct information -- without providing the
12 correct information;
13 or
14 (d) without reasonable excuse, proof of which is on the
15 person, does not give reasonable assistance when
16 required under section 359(1)(e)(iii); or
17 (e) without reasonable excuse, proof of which is on the
18 person, obstructs or hinders --
19 (i) a mental health advocate in the exercise of a
20 power under section 359(1); or
21 (ii) a person assisting a mental health advocate under
22 section 359(1)(e)(iii).
23 Penalty: a fine of $6 000.
24 (2) It is enough for a prosecution notice lodged against a person for
25 an offence under subsection (1) alleged to have been committed
26 in the circumstances referred to in subsection (1)(b) or (c) to
27 state that the answer, information or document was false or
28 misleading to the person's knowledge without stating which.
29 363. Issues arising out of inquiries and investigations
30 (1) A mental health advocate may attempt to resolve any issue that
31 arises in the course of an inquiry into or investigation of a
32 matter under section 352(1)(b), (c) or (d) by dealing directly
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functions and powers
s. 363
1 with the relevant staff members of the mental health service
2 concerned.
3 (2) A mental health advocate must refer an issue to the Chief
4 Mental Health Advocate if the mental health advocate cannot
5 resolve the issue or considers it appropriate to do so.
6 (3) The Chief Mental Health Advocate may provide a report about
7 an issue referred to the Chief Mental Health Advocate under
8 subsection (2) to the person in charge of the mental health
9 service concerned.
10 (4) The Chief Mental Health Advocate may also provide a copy of
11 any report provided to a person in charge of a mental health
12 service under subsection (3) to one or more of the following --
13 (a) the Minister;
14 (b) the CEO;
15 (c) the CEO of the Health Department;
16 (d) the Chief Psychiatrist.
17 (5) A person to whom a copy of a report about an issue is provided
18 under subsection (4) must advise the Chief Mental Health
19 Advocate --
20 (a) whether or not the person considers further inquiry into
21 or investigation of the issue is warranted; and
22 (b) if it is warranted -- the outcome of the further inquiry or
23 investigation, including any recommendations made,
24 directions given or other action taken under this Act or
25 another written law.
26 (6) This section does not limit the powers that a mental health
27 advocate has for dealing with any issue that arises in the course
28 of an inquiry into or investigation of a matter under
29 section 352(1)(b), (c) or (d).
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Division 3 Terms and conditions of appointment or engagement
s. 364
1 Division 3 -- Terms and conditions of appointment or
2 engagement
3 Subdivision 1 -- Chief Mental Health Advocate
4 364. Terms and conditions of appointment
5 (1) The Chief Mental Health Advocate --
6 (a) holds office for the period (not exceeding 5 years)
7 specified in the instrument of appointment; and
8 (b) is eligible for reappointment.
9 (2) Subject to this Subdivision, the Chief Mental Health Advocate
10 holds office on the terms and conditions of appointment
11 determined by the Minister.
12 365. Remuneration
13 The Chief Mental Health Advocate is entitled to the
14 remuneration determined by the Minister on the
15 recommendation of the Public Sector Commissioner.
16 366. Resignation
17 (1) The Chief Mental Health Advocate may resign from office by
18 writing signed and given to the Minister.
19 (2) The resignation takes effect on the later of the following --
20 (a) receipt by the Minister;
21 (b) the day specified in the resignation.
22 367. Removal from office
23 The Minister may remove a person from the office of Chief
24 Mental Health Advocate on any of these grounds --
25 (a) mental or physical incapacity;
26 (b) incompetence;
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s. 368
1 (c) neglect of duty;
2 (d) misconduct.
3 368. Acting Chief Mental Health Advocate
4 (1) The Minister may appoint a person to act in the office of the
5 Chief Mental Health Advocate referred to in section 349 --
6 (a) during a vacancy in the office, whether or not an
7 appointment has previously been made to the office; or
8 (b) during a period, or during all periods, when the person
9 holding the office or a person acting in the office under
10 an appointment under this subsection is on leave or is
11 otherwise unable to perform the functions of the office.
12 (2) An appointment under subsection (1) may be expressed to have
13 effect only in the circumstances specified in the instrument of
14 appointment.
15 (3) The Minister may --
16 (a) determine the terms and conditions of an appointment
17 under subsection (1), including as to remuneration; and
18 (b) terminate an appointment under subsection (1) at any
19 time.
20 (4) The validity of anything done by or in relation to a person
21 purporting to act under an appointment under subsection (1) is
22 not to be called into question on any of these grounds --
23 (a) the occasion for the appointment had not arisen;
24 (b) there is a defect or irregularity in the appointment;
25 (c) the appointment had ceased to have effect;
26 (d) the occasion for the person to act had not arisen or had
27 ceased.
28 (5) A person cannot act under an appointment under subsection (1)
29 for a continuous period exceeding 12 months.
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Division 3 Terms and conditions of appointment or engagement
s. 369
1 Subdivision 2 -- Other mental health advocates
2 369. Terms and conditions of engagement
3 (1) A mental health advocate engaged under section 350(1) --
4 (a) holds office for the period (not exceeding 3 years)
5 specified in the contract for services; and
6 (b) is eligible for re-engagement.
7 (2) Subject to this Subdivision, a mental health advocate engaged
8 under section 350(1) holds office on the terms and conditions of
9 engagement determined by the Minister.
10 370. Remuneration
11 A mental health advocate engaged under section 350(1) is
12 entitled to the remuneration determined by the Minister.
13 371. Resignation
14 (1) A mental health advocate engaged under section 350(1) may
15 resign from office by writing signed and given to the Chief
16 Mental Health Advocate.
17 (2) The resignation takes effect on the later of the following --
18 (a) receipt by the Chief Mental Health Advocate;
19 (b) the day specified in the resignation.
20 372. Removal from office
21 The Chief Mental Health Advocate may remove a person from
22 the office of mental health advocate referred to in section 350(1)
23 on any of these grounds --
24 (a) mental or physical incapacity;
25 (b) incompetence;
26 (c) neglect of duty;
27 (d) misconduct.
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Other matters relating to mental health advocates Division 4
s. 373
1 Division 4 -- Other matters relating to mental health advocates
2 373. Conflict of interest
3 (1) A mental health advocate may be employed by, or have a
4 disqualifying interest under subsection (3) in, a body or
5 organisation that provides treatment or care for identified
6 persons.
7 (2) However, the mental health advocate cannot perform any
8 functions under this Act as a mental health advocate in relation
9 to an identified person who is being provided with treatment or
10 care by the body or organisation.
11 (3) For subsection (1), a mental health advocate has a disqualifying
12 interest in a body or organisation if --
13 (a) the mental health advocate; or
14 (b) another person with whom the mental health advocate is
15 closely associated,
16 has a financial interest in the body or organisation other than a
17 financial interest prescribed by the regulations for this
18 subsection.
19 (4) For subsection (3)(b), a person is closely associated with a
20 mental health advocate if the person --
21 (a) is the spouse, de facto partner or child of the mental
22 health advocate; or
23 (b) is in partnership with the mental health advocate; or
24 (c) is an employer of the mental health advocate; or
25 (d) is a beneficiary under a trust, or an object of a
26 discretionary trust, of which the mental health advocate
27 is a trustee; or
28 (e) is a body corporate of which the mental health advocate
29 is an officer; or
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Division 4 Other matters relating to mental health advocates
s. 374
1 (f) is a body corporate in which the mental health advocate
2 holds shares that have a total nominal value
3 exceeding --
4 (i) the amount prescribed by the regulations for this
5 paragraph; or
6 (ii) the percentage prescribed by the regulations for
7 this paragraph of the total nominal value of the
8 issued share capital of the body corporate;
9 or
10 (g) has a relationship specified in paragraphs (a) to (f) with
11 the mental health advocate's spouse or de facto partner.
12 374. Delegation by Chief Mental Health Advocate
13 (1) In this section --
14 advocacy services officer means --
15 (a) a public service officer who is appointed or made
16 available to assist the Chief Mental Health Advocate as
17 required by section 375; or
18 (b) an officer or employee whose services are being used by
19 the Chief Mental Health Advocate by arrangement
20 under section 376(1).
21 (2) The Chief Mental Health Advocate may delegate to another
22 mental health advocate or an advocacy services officer any
23 power or duty of the Chief Mental Health Advocate under
24 another provision of this Act.
25 (3) The delegation must be in writing signed by the Chief Mental
26 Health Advocate.
27 (4) A person to whom a power or duty is delegated under this
28 section cannot delegate that power or duty.
29 (5) A person exercising or performing a power or duty that has been
30 delegated to the person under this section is taken to do so in
31 accordance with the terms of the delegation unless the contrary
32 intention is shown.
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Staff and facilities Division 5
s. 375
1 (6) This section does not limit the ability of the Chief Mental
2 Health Advocate to perform a function through an officer or
3 agent.
4 Division 5 -- Staff and facilities
5 375. Advocacy services staff
6 Public service officers must be appointed under, or made
7 available under, the Public Sector Management Act 1994 Part 3
8 to assist the Chief Mental Health Advocate in performing his or
9 her functions under this Act or another written law.
10 376. Use of government staff and facilities
11 (1) The Chief Mental Health Advocate may, by arrangement, use
12 (either full-time or part-time) the services of any officer or
13 employee employed in the Public Service or a State agency or
14 instrumentality or employed otherwise in the service of the
15 State.
16 (2) The Chief Mental Health Advocate may, by arrangement, use
17 any facilities of a department of the Public Service or a State
18 agency or instrumentality.
19 (3) An arrangement under subsection (1) or (2) must be made on
20 terms agreed to by the parties.
21 Division 6 -- Annual reports
22 377. Annual report: preparation
23 Within 3 months after 30 June in each year, the Chief Mental
24 Health Advocate must prepare and give to the Minister a report
25 as to the general activities of mental health advocates during the
26 financial year ending on that day.
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Part 20 Mental health advocacy services
Division 6 Annual reports
s. 378
1 378. Annual report: tabling
2 (1) The Minister must cause a copy of a report referred to in
3 section 377 to be laid before each House of Parliament, or dealt
4 with under subsection (2), on or within 21 days after the day on
5 which the Minister receives the report.
6 (2) The Minister must transmit a copy of the report to the Clerk of a
7 House of Parliament if --
8 (a) at the beginning of the 21-day period referred to in
9 subsection (1), the House is not sitting; and
10 (b) in the Minister's opinion, the House will not sit during
11 that period.
12 (3) A copy of a report transmitted under subsection (2) to the Clerk
13 of a House is taken to have been laid before that House.
14 (4) The laying of a copy of a report that is taken to have occurred
15 under subsection (3) must be recorded in the Minutes, or Votes
16 and Proceedings, of the House on the first sitting day of the
17 House after the receipt of the copy by the Clerk.
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Mental Health Tribunal Part 21
Preliminary matters Division 1
s. 379
1 Part 21 -- Mental Health Tribunal
2 Division 1 -- Preliminary matters
3 379. Terms used
4 In this Part --
5 application means an application made to the Tribunal under
6 this Part;
7 decision, of the Tribunal, includes an order, direction or
8 declaration made by the Tribunal;
9 hearing means a hearing in a proceeding;
10 lawyer means an Australian lawyer as defined in the Legal
11 Profession Act 2008 section 3;
12 member means --
13 (a) the President of the Tribunal; or
14 (b) a member of the Mental Health Tribunal appointed
15 under section 474(1);
16 party means a party to a proceeding;
17 person concerned, in an application or proceeding, means the
18 patient or other person whom the application or proceeding
19 concerns;
20 President of the Tribunal means President of the Mental Health
21 Tribunal appointed under section 473;
22 presiding member, in a proceeding, has the meaning given in
23 section 438;
24 proceeding means a proceeding of the Tribunal under this Part
25 and includes part of a proceeding;
26 registrar means the registrar of the Mental Health Tribunal
27 referred to in section 481;
28 registry officer means a public service officer appointed or
29 made available to assist the registrar as required by section 484;
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Part 21 Mental Health Tribunal
Division 2 Establishment, jurisdiction and constitution
s. 380
1 Tribunal means the Mental Health Tribunal established by
2 section 380;
3 witness means a witness in a proceeding.
4 Division 2 -- Establishment, jurisdiction and constitution
5 380. Establishment
6 The Mental Health Tribunal is established.
7 381. Jurisdiction
8 The Tribunal has the jurisdiction conferred on it by this Part.
9 382. Constitution specified by President
10 When exercising its jurisdiction, subject to sections 383
11 and 384, the Tribunal must be constituted by the members
12 specified by the President of the Tribunal.
13 383. Constitution generally
14 For the purpose of a proceeding, except as provided by
15 section 384, the Tribunal must be constituted by 3 members as
16 follows --
17 (a) a member who is a lawyer;
18 (b) if the patient is an adult -- a member who is a
19 psychiatrist;
20 (c) if the patient is a child --
21 (i) a member who is a child and adolescent
22 psychiatrist; or
23 (ii) if a member referred to in subparagraph (i) is not
24 available -- a member who is a psychiatrist;
25 (d) a member who is not --
26 (i) a lawyer; or
27 (ii) a medical practitioner; or
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Mental Health Tribunal Part 21
Establishment, jurisdiction and constitution Division 2
s. 384
1 (iii) a mental health practitioner who is a staff
2 member of a mental health service or private
3 psychiatric hostel.
4 384. Constitution for psychosurgical matters
5 For a proceeding in relation to an application made under
6 section 415(1) for approval for psychosurgery to be performed,
7 the Tribunal must be constituted by 5 members as follows --
8 (a) a member who is a lawyer;
9 (b) a neurosurgeon who is appointed as a member after
10 consultation by the Minister with the Health Minister
11 held after consultation by the Health Minister with the
12 Royal Australasian College of Surgeons;
13 (c) if the patient is an adult -- 2 members who are
14 psychiatrists;
15 (d) if the patient is a child --
16 (i) a member who is a child and adolescent
17 psychiatrist; and
18 (ii) another member who is a psychiatrist who can
19 (but need not) be a child and adolescent
20 psychiatrist;
21 (e) a member who is not --
22 (i) a lawyer; or
23 (ii) a medical practitioner; or
24 (iii) a mental health practitioner who is a staff
25 member of a mental health service or private
26 psychiatric hostel.
27 385. Contemporaneous exercise of jurisdiction
28 The Tribunal constituted in accordance with this Part may
29 exercise its jurisdiction even if the Tribunal differently
30 constituted under this Part is exercising its jurisdiction at the
31 same time.
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Part 21 Mental Health Tribunal
Division 3 Involuntary treatment orders: review
s. 386
1 Division 3 -- Involuntary treatment orders: review
2 386. Initial review after order made
3 (1) In this section --
4 initial review period, for an involuntary treatment order,
5 means --
6 (a) if, when the order is made, the involuntary patient is an
7 adult -- the period of 35 days from the day on which the
8 order is made; or
9 (b) if, when the order is made, the involuntary patient is a
10 child -- the period of 10 days from the day on which the
11 order is made.
12 (2) Unless subsection (4) or (5) applies, as soon as practicable after
13 an involuntary treatment order is made and, in any event, by the
14 end of the initial review period, the Tribunal must review the
15 order to decide whether or not the involuntary patient is still in
16 need of the involuntary treatment order having regard to the
17 criteria specified in section 25.
18 (3) It is sufficient for compliance with subsection (2) if the review
19 is commenced in accordance with that provision and is
20 completed as soon as practicable.
21 (4) The Tribunal is not required to review the order under
22 subsection (2) if the involuntary patient has not, under
23 section 388, been an involuntary patient continuously since the
24 order was made.
25 (5) The Tribunal is not required to review the order under
26 subsection (2) if --
27 (a) the Tribunal has --
28 (i) previously reviewed under this Division an
29 involuntary treatment order made in respect of
30 the involuntary patient; or
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Involuntary treatment orders: review Division 3
s. 387
1 (ii) previously reviewed under this Division the
2 terms of a community treatment order that a
3 psychiatrist has been directed under
4 section 395(2)(b) to make in respect of the
5 involuntary patient;
6 and
7 (b) the involuntary patient, has under section 388, been an
8 involuntary patient continuously since the previous
9 review.
10 387. Periodic reviews while order in force
11 (1) In this section --
12 last review, of an involuntary treatment order, means --
13 (a) the last review of the order under section 386(2) or
14 subsection (2); or
15 (b) if the order has not been reviewed under either of those
16 provisions because it was made after another
17 involuntary treatment order was last reviewed under one
18 or other of those provisions -- the last review of that
19 other order;
20 last review day, for an involuntary treatment order, means the
21 day on which the decision on the last review of the order is
22 made;
23 periodic review period means --
24 (a) for an inpatient treatment order or for a community
25 treatment order in respect of a patient who, on the last
26 review day, has been an involuntary community patient
27 continuously for not more than 12 months --
28 (i) if, on the last review day, the involuntary patient
29 is an adult -- the period of 3 months from that
30 day; or
31 (ii) if, on the last review day, the involuntary patient
32 is a child -- the period of 28 days from that day;
33 or
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Division 3 Involuntary treatment orders: review
s. 388
1 (b) for a community treatment order in respect of a patient
2 who, on the last review day, has been an involuntary
3 community patient continuously for more than
4 12 months -- the period of 6 months from that day;
5 prescribed number of days, before the end of a periodic review
6 period, means --
7 (a) if, when the involuntary treatment order that is the
8 subject of the proceeding was made, the involuntary
9 patient is an adult -- 21 days before the day on which
10 that period ends; or
11 (b) if, when the involuntary treatment order that is the
12 subject of the proceeding was made, the involuntary
13 patient was a child -- 7 days before the day on which
14 that period ends.
15 (2) Unless subsection (4) applies, the Tribunal must, on or within
16 the prescribed number of days before the day on which a
17 periodic review period for an involuntary treatment order ends,
18 review the order to decide whether or not the involuntary patient
19 is still in need of the involuntary treatment order having regard
20 to the criteria specified in section 25.
21 (3) It is sufficient for compliance with subsection (2) if a review is
22 commenced in accordance with that provision and is completed
23 as soon as practicable.
24 (4) The Tribunal is not required to review the order under
25 subsection (2) if the involuntary patient has not, under
26 section 388, been an involuntary patient continuously since the
27 last review day.
28 388. Involuntary patient for continuous period
29 For sections 386(4) and (5)(b) and 387(4), a person has been an
30 involuntary patient continuously for a period if --
31 (a) one, or a series of 2 or more, involuntary treatment
32 orders were in force in respect of the person for the
33 whole period; or
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Involuntary treatment orders: review Division 3
s. 389
1 (b) during the period, an involuntary treatment order ceased
2 to be in force in respect of the person and another
3 involuntary treatment order came into force in respect of
4 the person on or within 7 days after the day of the
5 cessation.
6 389. Review period may be extended
7 (1) In this section --
8 maximum extension period means --
9 (a) if, on the day on which the relevant decision is made,
10 the involuntary patient is an adult -- the period of
11 21 days; or
12 (b) if, on the day on which the relevant decision is made,
13 the involuntary patient is a child -- the period of 7 days;
14 prescribed period means --
15 (a) if, on the day on which the relevant decision is made,
16 the involuntary patient is an adult -- the period of
17 28 days; or
18 (b) if, on the day on which the relevant decision is made,
19 the involuntary patient is a child -- the period of 7 days;
20 relevant decision, in relation to the review of an involuntary
21 treatment order under section 386(2) or 387(2), means a
22 decision of the Tribunal the making of which involves a
23 consideration of substantially the same issues as would be raised
24 in the review;
25 review period, for an involuntary treatment order, means --
26 (a) the initial review period under section 386(1) for the
27 involuntary treatment order; or
28 (b) a periodic review period under section 387(1) for the
29 involuntary treatment order.
30 (2) If the Tribunal makes a relevant decision within the prescribed
31 period before the day on which a review period for an
32 involuntary treatment order ends, the Tribunal may make an
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Part 21 Mental Health Tribunal
Division 3 Involuntary treatment orders: review
s. 390
1 order extending the review period from the day on which it
2 would otherwise have ended for the further period (not
3 exceeding the maximum extension period) specified in the
4 order.
5 390. Application for review
6 (1) A person specified in subsection (2) may apply to the Tribunal
7 for a review of any of these things --
8 (a) an involuntary treatment order, to decide whether or not
9 the involuntary patient is still in need of an involuntary
10 treatment order having regard to the criteria specified in
11 section 25;
12 (b) an inpatient treatment order, to decide whether or not the
13 involuntary inpatient is still in need of an inpatient
14 treatment order having regard to the criteria specified in
15 section 25(1);
16 (c) a community treatment order, to decide whether or not
17 the terms of the order are appropriate;
18 (d) a transfer order made under section 66(1) or 91(2) in
19 respect of an involuntary inpatient, or a refusal to make
20 such an order, to decide whether or not the making of
21 the order or the refusal to do so is appropriate;
22 (e) the transfer under section 135(1)(a) of a psychiatrist's
23 responsibility as the supervising psychiatrist under a
24 community treatment order, or a refusal to transfer that
25 responsibility, to decide whether or not the transfer of
26 responsibility or the refusal to do so is appropriate;
27 (f) the transfer under section 137(a) of a practitioner's
28 responsibility as the treating practitioner under a
29 community treatment order, or a refusal to transfer that
30 responsibility, to decide whether or not the transfer of
31 responsibility or the refusal to do so is appropriate;
32 (g) a transfer order made under section 553(1) in respect of
33 a State inpatient, or a refusal to make such an order, to
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Mental Health Tribunal Part 21
Involuntary treatment orders: review Division 3
s. 391
1 decide whether or not the making of the order or the
2 refusal to do so is appropriate.
3 (2) An application may be made under subsection (1) by any of
4 these people --
5 (a) the involuntary patient;
6 (b) a carer, close family member or other personal support
7 person of the involuntary patient;
8 (c) a mental health advocate;
9 (d) any other person who, in the Tribunal's opinion, has a
10 sufficient interest in the matter.
11 (3) The application must be in writing and, unless subsection (4)
12 applies, may be made at any time.
13 (4) The application cannot be made within the prescribed period
14 after the day on which the Tribunal makes a decision that
15 involves a consideration of substantially the same issues as
16 would be raised by the application unless there has been a
17 material change in the involuntary patient's circumstances since
18 that day.
19 (5) For subsection (4), the prescribed period is --
20 (a) if, on the day on which the decision is made, the
21 involuntary patient is an adult -- the period of 28 days;
22 or
23 (b) if, on the day on which the decision is made, the
24 involuntary patient is a child -- the period of 7 days.
25 391. Review on Tribunal's own initiative
26 The Tribunal may, on its own initiative whenever it considers it
27 appropriate, review --
28 (a) an involuntary treatment order referred to in
29 section 390(1)(a) to (c) to decide the matter referred in
30 that provision; or
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Part 21 Mental Health Tribunal
Division 3 Involuntary treatment orders: review
s. 392
1 (b) a transfer order referred to in section 390(1)(d) or (g) to
2 decide the matter referred in that provision; or
3 (c) a transfer of responsibility under section 390(1)(e) or (f)
4 to decide the matter referred to in that provision.
5 392. Suspending order pending review
6 (1) For the purposes of a proceeding for a review under this
7 Division, the Tribunal may make an order --
8 (a) suspending the operation of the involuntary treatment
9 order that is the subject of the proceeding until the
10 Tribunal makes a decision on the review; or
11 (b) restraining the taking of any action, or any further
12 action, under the involuntary treatment order that is the
13 subject of the proceeding until then.
14 (2) The Tribunal may make an order under subsection (1) on the
15 application of a party or on its own initiative.
16 393. Parties to proceeding
17 The parties to a proceeding under this Division are --
18 (a) the involuntary patient; and
19 (b) the patient's psychiatrist; and
20 (c) if the proceeding relates to an application made under
21 section 390 and the applicant is not a person referred to
22 in paragraph (a) or (b) -- the applicant; and
23 (d) any other person who, in the opinion of the Tribunal, has
24 a sufficient interest in the matter.
25 394. Things to which Tribunal must have regard
26 (1) In making a decision on a review under this Division in respect
27 of an involuntary patient, the Tribunal must have regard to these
28 things --
29 (a) if the involuntary patient is a child and the Tribunal is
30 not constituted with a child and adolescent
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Mental Health Tribunal Part 21
Involuntary treatment orders: review Division 3
s. 395
1 psychiatrist -- the views of a medical practitioner or
2 mental health practitioner specified in subsection (2);
3 (b) the involuntary patient's psychiatric condition;
4 (c) the involuntary patient's medical and psychiatric
5 history;
6 (d) the involuntary patient's treatment, support and
7 discharge plan;
8 (e) the involuntary patient's wishes, to the extent that it is
9 practicable to ascertain those wishes;
10 (f) the views of any carer, close family member or other
11 personal support person of the involuntary patient;
12 (g) any other things that the Tribunal considers relevant to
13 making the decision.
14 (2) For subsection (1)(a), a medical practitioner or mental health
15 practitioner must --
16 (a) have qualifications, training or experience relevant to
17 children who have a mental illness; and
18 (b) be authorised by the Chief Psychiatrist for this
19 paragraph.
20 Note for section 394:
21 For the purpose of ascertaining the involuntary patient's wishes under
22 section 394(1)(e), Part 2 Division 4 applies.
23 395. What Tribunal may do on completing review
24 (1) On completing a review under this Division, the Tribunal may
25 make any orders, and give any directions, the Tribunal considers
26 appropriate.
27 (2) Those orders and directions include the following --
28 (a) an order revoking an involuntary treatment order;
29 (b) a direction to the psychiatrist named in the order to
30 make, within a reasonable period specified in the
31 direction, a community treatment order in terms that are
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Part 21 Mental Health Tribunal
Division 4 Involuntary treatment orders: validity
s. 396
1 consistent with section 115 and specified in the
2 direction;
3 (c) an order varying the terms of a community treatment
4 order in any way that is consistent with section 115.
5 (3) The Tribunal cannot make an order or give a direction under
6 subsection (1) in relation to an involuntary patient's treatment,
7 support or discharge plan, but may make --
8 (a) a recommendation that the patient's psychiatrist review
9 the treatment, support or discharge plan; and
10 (b) if such a recommendation is made -- a recommendation
11 about the amendments that could be made to the
12 treatment, support and discharge plan.
13 (4) The Tribunal may give a copy of any recommendation made
14 under subsection (3) to the Chief Psychiatrist.
15 396. Review of direction given to psychiatrist
16 (1) A psychiatrist who is directed under section 395(2)(b) to make a
17 community treatment order may, during the period within which
18 the order must be made, apply to the Tribunal for a review of
19 the direction.
20 (2) Sections 392 to 394 and section 395(1) and (2)(a) and (c) apply
21 (with the necessary changes) in relation to an application made
22 under subsection (1) as if it were an application made under
23 section 390(1)(c).
24 Division 4 -- Involuntary treatment orders: validity
25 397. Application of this Division
26 This Division applies in relation to any of these orders (a
27 treatment order) --
28 (a) an involuntary treatment order;
29 (b) a continuation order made under section 89(2)(a)
30 or 121(1) in respect of an involuntary treatment order;
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Involuntary treatment orders: validity Division 4
s. 398
1 (c) an order made under section 122(1) varying a
2 community treatment order.
3 398. Declaration about validity of treatment order
4 (1) The Tribunal may, on the application of a person specified in
5 section 400 or on its own initiative, declare that a treatment
6 order is valid or invalid.
7 (2) If the Tribunal declares that a treatment order is invalid,
8 section 399 applies.
9 (3) Instead of declaring that a treatment order is invalid, the
10 Tribunal --
11 (a) may declare the treatment order to be valid; and
12 (b) may make an order varying the terms of the treatment
13 order in the manner the Tribunal considers most likely
14 to give effect to the intention of the psychiatrist who
15 made the treatment order.
16 (4) The Tribunal cannot make a declaration under subsection (3)(a)
17 in respect of a treatment order if the Tribunal is satisfied that the
18 treatment order is invalid on the ground referred to in
19 section 401.
20 (5) A declaration made under subsection (1) or (3)(a) has effect
21 according to its terms.
22 399. Consequences of declaring treatment order invalid
23 (1) If the Tribunal declares that an inpatient treatment order is
24 invalid --
25 (a) the inpatient treatment order ceases to be in force; but
26 (b) if the Tribunal reasonably suspects that the person who
27 was subject to the involuntary inpatient order is in need
28 of an involuntary treatment order --
29 (i) the Tribunal may make an order for the
30 assessment of the person by a medical
31 practitioner or authorised mental health
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Part 21 Mental Health Tribunal
Division 4 Involuntary treatment orders: validity
s. 400
1 practitioner at the hospital where the person was
2 detained under the inpatient treatment order and
3 authorising the person's detention there for up to
4 the period specified in the order to enable the
5 assessment to be conducted; and
6 (ii) this Act applies (with any changes that are
7 necessary or convenient to give effect to the
8 Tribunal's order) as if the Tribunal's order were
9 an order made under section 34(1).
10 (2) If the Tribunal declares that a community treatment order is
11 invalid, the community treatment order ceases to be in force.
12 (3) If the Tribunal declares that a continuation order made under
13 section 89(2)(a) or 121(1) is invalid, the continuation order
14 ceases to be in force and the involuntary treatment order expires
15 when it would have expired had the continuation order not been
16 made.
17 (4) If the Tribunal declares that an order made under section 122(1)
18 is invalid, the community treatment order as in force
19 immediately before the order was made under section 122(1)
20 continues in force.
21 400. Application for declaration
22 An application may be made under section 398(1) by any of
23 these people --
24 (a) the involuntary patient;
25 (b) the psychiatrist who made the treatment order;
26 (c) a carer, close family member or other personal support
27 person of the involuntary patient;
28 (d) a mental health advocate;
29 (e) any other person who, in the Tribunal's opinion, has a
30 sufficient interest in the matter.
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Mental Health Tribunal Part 21
Review of admission of long-term voluntary inpatients Division 5
s. 401
1 401. Failure to comply with this Act
2 Without limiting the grounds on which a treatment order can be
3 declared under section 398(1) to be invalid, the Tribunal may
4 declare that a treatment order is invalid if satisfied that --
5 (a) there has been a failure to comply with the requirements
6 of this Act in relation to --
7 (i) the making of the treatment order; or
8 (ii) the conduct of any assessment or examination, or
9 the making of any referral or order, that led to
10 the making of the treatment order;
11 and
12 (b) because of that failure, whether alone or in combination
13 with one or more other such failures, the rights or
14 interests of the involuntary patient have been
15 substantially prejudiced.
16 Division 5 -- Review of admission of long-term
17 voluntary inpatients
18 402. Application of this Division
19 This Division applies in relation to a person (a long-term
20 voluntary inpatient) who --
21 (a) is a voluntary inpatient at an authorised hospital; and
22 (b) has been a voluntary inpatient at the authorised hospital
23 for --
24 (i) if the inpatient is an adult -- a continuous period
25 of more than 6 months; or
26 (ii) if the inpatient is a child -- a continuous period
27 of more than 3 months.
28 403. Application for review
29 (1) A person specified in subsection (2) may apply to the Tribunal
30 for a review of the long-term voluntary inpatient's admission by
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Part 21 Mental Health Tribunal
Division 5 Review of admission of long-term voluntary inpatients
s. 404
1 the authorised hospital to decide whether or not there is still a
2 need for the admission.
3 (2) An application may be made under subsection (1) by any of
4 these people --
5 (a) the long-term voluntary inpatient;
6 (b) a carer, close family member or other personal support
7 person of the long-term voluntary inpatient;
8 (c) a mental health advocate;
9 (d) any other person who, in the opinion of the Tribunal, has
10 a sufficient interest in the matter.
11 404. Parties to proceeding
12 The parties to a proceeding in relation to the application are --
13 (a) the long-term voluntary inpatient; and
14 (b) the treating psychiatrist; and
15 (c) if the applicant is not a person referred to in
16 paragraph (a) or (b) -- the applicant; and
17 (d) any other person who, in the opinion of the Tribunal, has
18 a sufficient interest in the matter.
19 405. Things to which Tribunal must have regard
20 (1) In making a decision on a review under this Division in respect
21 of a long-term voluntary inpatient, the Tribunal must have
22 regard to these things --
23 (a) if the inpatient is a child and the Tribunal is not
24 constituted with a child and adolescent psychiatrist --
25 the views of a medical practitioner or mental health
26 practitioner specified in subsection (2);
27 (b) the inpatient's psychiatric condition;
28 (c) the inpatient's medical and psychiatric history;
29 (d) the inpatient's wishes, to the extent that it is practicable
30 to ascertain those wishes;
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Electroconvulsive therapy approvals Division 6
s. 406
1 (e) the views of any carer, close family member or other
2 personal support person of the inpatient;
3 (f) any other things that the Tribunal considers relevant to
4 making the decision.
5 (2) For subsection (1)(a), a medical practitioner or mental health
6 practitioner must --
7 (a) have qualifications, training or experience relevant to
8 children who have a mental illness; and
9 (b) be authorised by the Chief Psychiatrist for this
10 paragraph.
11 Note for section 405:
12 For the purpose of the Tribunal ascertaining the patient's wishes under
13 section 405(1)(d), Part 2 Division 4 applies.
14 406. What Tribunal may do on completing review
15 On completing a review under this Division in respect of a
16 long-term voluntary inpatient, the Tribunal may make any of
17 these recommendations --
18 (a) the treating psychiatrist consider whether or not there is
19 still a need for the admission;
20 (b) a treatment, support and discharge plan for the inpatient
21 be prepared and be reviewed regularly;
22 (c) the inpatient be discharged.
23 Division 6 -- Electroconvulsive therapy approvals
24 407. Application of this Division
25 This Division relates to obtaining the Tribunal's approval to
26 electroconvulsive therapy being performed on --
27 (a) a child who has reached 14 years of age but is under
28 18 years of age and is a voluntary patient, as required by
29 section 195(2)(b); or
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Division 6 Electroconvulsive therapy approvals
s. 408
1 (b) a child who has reached 14 years of age but is under
2 18 years of age and is an involuntary patient or mentally
3 impaired accused required under the MIA Act to be
4 detained at an authorised hospital, as required by
5 section 196(2); or
6 (c) an adult who is an involuntary patient or mentally
7 impaired accused required under the MIA Act to be
8 detained at an authorised hospital, as required by
9 section 198(2).
10 408. Application for approval
11 (1) The patient's psychiatrist may apply for approval to perform
12 electroconvulsive therapy on the patient.
13 (2) The application must be in writing and must set out --
14 (a) the reasons why the patient's psychiatrist is
15 recommending that the electroconvulsive therapy be
16 performed; and
17 (b) a treatment plan in relation to the electroconvulsive
18 therapy, including --
19 (i) the mental health service at which it is proposed
20 to perform the electroconvulsive therapy; and
21 (ii) the maximum number of treatments with
22 electroconvulsive therapy that it is proposed will
23 be performed; and
24 (iii) the maximum period over which it is proposed to
25 perform that number of treatments; and
26 (iv) the minimum period that it is proposed will
27 elapse between any 2 treatments.
28 409. Parties to proceeding
29 The parties to a proceeding in relation to the application are --
30 (a) the patient; and
31 (b) the patient's psychiatrist; and
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Electroconvulsive therapy approvals Division 6
s. 410
1 (c) any other person who, in the Tribunal's opinion, has a
2 sufficient interest in the matter.
3 410. Things Tribunal must be satisfied of
4 (1) The Tribunal cannot approve electroconvulsive therapy being
5 performed on a patient unless satisfied that the mental health
6 service at which it is proposed to perform the electroconvulsive
7 therapy is approved under section 542 for that purpose.
8 (2) The Tribunal cannot approve electroconvulsive therapy being
9 performed on a patient to whom section 195 applies unless
10 satisfied that informed consent to it being performed on the
11 patient is given as required by section 195(2)(a).
12 411. Tribunal must have regard to Chief Psychiatrist's guidelines
13 In deciding whether or not to approve electroconvulsive therapy
14 being performed on a patient, the Tribunal must have regard to
15 the guidelines published under section 545(1)(f) about the
16 performance of electroconvulsive therapy.
17 412. Other things to which Tribunal must have regard
18 (1) In deciding whether or not to approve electroconvulsive therapy
19 being performed on a patient, the Tribunal must also have
20 regard to these things --
21 (a) if the patient is a child and the Tribunal is not
22 constituted with a child and adolescent psychiatrist --
23 the views of a medical practitioner or mental health
24 practitioner specified in subsection (2);
25 (b) the patient's wishes, to the extent that it is practicable to
26 ascertain those wishes;
27 (c) if the patient is an adult -- the views of the person who
28 is authorised by law to give informed consent to the
29 electroconvulsive therapy being performed on the
30 patient were that consent required;
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1 (d) if the patient is a child -- the views of the child's parent
2 or guardian;
3 (e) if the patient has a nominated person -- the views of the
4 nominated person;
5 (f) if the patient has a carer -- the views of the carer;
6 (g) if the patient has a close family member -- the views of
7 the close family member;
8 (h) the reasons why the patient's psychiatrist is
9 recommending that the electroconvulsive therapy be
10 performed;
11 (i) the consequences for the treatment and care of the
12 patient of not performing the electroconvulsive therapy;
13 (j) the nature and degree of any significant risk of
14 performing the electroconvulsive therapy;
15 (k) whether the electroconvulsive therapy is likely to
16 promote and maintain the health and wellbeing of the
17 patient;
18 (l) whether any alternative treatment is available;
19 (m) the nature and degree of any significant risk of
20 providing any alternative treatment that is available;
21 (n) any other things that the Tribunal considers relevant to
22 making the decision.
23 (2) For subsection (1)(a), a medical practitioner or mental health
24 practitioner must --
25 (a) have qualifications, training or experience relevant to
26 children who have a mental illness; and
27 (b) be authorised by the Chief Psychiatrist for this
28 paragraph.
29 Note for section 412:
30 For the purpose of the Tribunal ascertaining the patient's wishes under
31 section 412(1)(b), Part 2 Division 4 applies.
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s. 413
1 413. Decision on application
2 The Tribunal may decide the application by --
3 (a) approving the electroconvulsive therapy being
4 performed in accordance with the treatment plan set out
5 in the application; or
6 (b) approving the electroconvulsive therapy being
7 performed in accordance with the treatment plan set out
8 in the application subject to the maximum number of
9 treatments with electroconvulsive therapy to be
10 performed being reduced to the number specified by the
11 Tribunal; or
12 (c) refusing to approve the electroconvulsive therapy being
13 performed.
14 Division 7 -- Psychosurgery approvals
15 414. Application of this Division
16 This Division relates to obtaining the Tribunal's approval to
17 psychosurgery being performed on a patient as required by
18 section 208(2)(b).
19 415. Application for approval
20 (1) The patient's psychiatrist may apply to the Tribunal for
21 approval for psychosurgery to be performed on a patient.
22 (2) The application must be in writing and must set out --
23 (a) the reasons why the patient's psychiatrist is
24 recommending that the psychosurgery be performed;
25 and
26 (b) a treatment plan in relation to the psychosurgery,
27 including --
28 (i) a detailed description of the psychosurgery
29 proposed to be performed; and
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1 (ii) the name, qualifications and experience of the
2 neurosurgeon who it is proposed will perform the
3 psychosurgery; and
4 (iii) the name and address of the place where it is
5 proposed to perform the psychosurgery.
6 416. Parties to proceeding
7 The parties to a proceeding in relation to the application are --
8 (a) the patient; and
9 (b) the patient's psychiatrist; and
10 (c) any other person who, in the Tribunal's opinion, has a
11 sufficient interest in the matter.
12 417. Things Tribunal must be satisfied of
13 The Tribunal cannot approve the psychosurgery being
14 performed on the patient unless satisfied of these things --
15 (a) the patient gives informed consent to the psychosurgery
16 being performed on himself or herself as required by
17 section 208(2)(a);
18 (b) performing the psychosurgery has clinical merit and is
19 appropriate in the circumstances;
20 (c) all alternatives to performing psychosurgery that are
21 reasonably available and likely to be of a sufficient and
22 lasting benefit to the patient have been appropriately
23 trialled with the patient but have not resulted in a
24 sufficient and lasting benefit to the patient;
25 (d) the neurosurgeon who it is proposed will perform the
26 psychosurgery is suitably qualified and experienced;
27 (e) the place where it is proposed to perform the
28 psychosurgery is a suitable place.
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s. 418
1 418. Things to which Tribunal must have regard
2 In deciding whether or not to approve the psychosurgery
3 therapy being performed on the patient, the Tribunal must have
4 regard to these things --
5 (a) the views of any carer, close family member or other
6 personal support person of the patient;
7 (b) the consequences for the treatment and care of the
8 patient of not performing the psychosurgery;
9 (c) the nature and degree of any significant risk of
10 performing the psychosurgery;
11 (d) whether the psychosurgery is likely to promote and
12 maintain the health and wellbeing of the patient;
13 (e) any other things that the Tribunal considers relevant to
14 making the decision.
15 419. Decision on application
16 The Tribunal may decide the application by --
17 (a) approving the psychosurgery being performed in
18 accordance with the application; or
19 (b) refusing to approve the psychosurgery being performed.
20 Division 8 -- Compliance notices for non-clinical matters
21 420. Terms used
22 In this Division --
23 prescribed requirement means a requirement under this Act --
24 (a) to do any of these things --
25 (i) give a document, or provide other information, to
26 a patient or another person;
27 (ii) include a document or other information on a
28 patient's medical record;
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s. 421
1 (iii) comply with a request made by a patient or other
2 person;
3 or
4 (b) to ensure that a thing referred to in paragraph (a) is
5 done;
6 service provider, in relation to a prescribed requirement, means
7 the person in charge of a mental health service, the medical
8 practitioner or the mental health practitioner required under this
9 Act to comply with, or to ensure compliance with, the
10 requirement.
11 421. Tribunal may issue service provider with compliance notice
12 (1) The Tribunal may, on the application of a person referred to in
13 section 422 or on its own initiative, issue a service provider with
14 a compliance notice if it appears to the Tribunal that the service
15 provider has not complied with a prescribed requirement.
16 (2) The compliance notice may direct the service provider --
17 (a) to take specified action within the specified period for
18 the purpose of complying with the prescribed
19 requirement; and
20 (b) to report to the Tribunal in the specified manner within
21 the specified period that --
22 (i) the service provider has taken the action
23 specified under paragraph (a) within the period
24 specified under paragraph (a); or
25 (ii) if the service provider has not taken the specified
26 action or has not taken that action within the
27 specified period -- the reasons for not doing so.
28 (3) Before deciding whether or not to issue a compliance notice
29 with a service provider, the Tribunal must consider whether it
30 would be appropriate to refer the matter to one or more of the
31 following --
32 (a) the CEO;
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1 (b) the CEO of the Health Department;
2 (c) the Chief Psychiatrist;
3 (d) a registration board.
4 (4) If the Tribunal decides that it would be appropriate to refer the
5 matter to a person or body referred to in subsection (3), the
6 Tribunal may refer the matter instead of, or in addition to,
7 issuing the service provider with a compliance notice.
8 422. Application for service of compliance notice
9 An application for the Tribunal to issue a service provider with
10 a compliance notice may be made under section 421(1) by any
11 of these people --
12 (a) the patient or other person to whom the prescribed
13 requirement relates;
14 (b) a carer, close family member or other personal support
15 person of the patient or other person;
16 (c) a mental health advocate;
17 (d) any other person who, in the Tribunal's opinion, has a
18 sufficient interest in the matter.
19 423. Parties to proceeding
20 The parties to a proceeding under section 421 are --
21 (a) the patient or other person to whom the prescribed
22 requirement relates; and
23 (b) the service provider on whom the prescribed
24 requirement is imposed; and
25 (c) if the proceeding relates to an application made under
26 section 422 and the applicant is not the patient or other
27 person to whom the prescribed requirement relates --
28 the applicant; and
29 (d) any other person who, in the opinion of the Tribunal, has
30 a sufficient interest in the matter.
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s. 424
1 424. Compliance notices to be reported on in annual report
2 The President of the Tribunal must include in the report
3 prepared under section 486 in respect of a financial year --
4 (a) the name of each service provider issued with a
5 compliance notice during that year; and
6 (b) the number of compliance notices with which each of
7 those service providers was issued during that year.
8 Division 9 -- Review of orders restricting freedom
9 of communication
10 425. Application for review
11 (1) A person specified in subsection (2) may apply to the Tribunal
12 for a review of an order made under section 262 prohibiting a
13 patient from exercising, or limiting the extent to which a patient
14 can exercise, a right under section 261.
15 (2) An application may be made under subsection (1) by any of
16 these people --
17 (a) the patient;
18 (b) a carer, close family member or other personal support
19 person of the patient;
20 (c) a mental health advocate;
21 (d) any other person who, in the opinion of the Tribunal, has
22 a sufficient interest in the matter.
23 426. Parties to proceeding
24 The parties to a proceeding in relation to the application are --
25 (a) the patient; and
26 (b) the person who made the decision under section 262;
27 and
28 (c) if the applicant is not the patient -- the applicant; and
29 (d) any other person who, in the opinion of the Tribunal, has
30 a sufficient interest in the matter.
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s. 427
1 427. Decision on application
2 The Tribunal may decide the application by --
3 (a) confirming the order as made or amended; or
4 (b) amending, or further amending, the order as made or
5 amended; or
6 (c) revoking the order.
7 Division 10 -- Jurisdiction in relation to nominated persons
8 428. Application for decision
9 (1) A person specified in subsection (2) may apply to the Tribunal
10 for a decision under this Division about a nomination.
11 (2) An application may be made under subsection (1) by any of
12 these people --
13 (a) the person who made the nomination;
14 (b) the nominated person;
15 (c) a carer, close family member or other personal support
16 person of the person who made the nomination;
17 (d) a mental health advocate;
18 (e) any other person who, in the opinion of the Tribunal, has
19 a sufficient interest in the matter.
20 429. Declaration about validity of nomination
21 (1) The Tribunal may declare that a nomination is valid or invalid.
22 (2) Instead of declaring that a nomination is invalid because of a
23 failure to comply with section 275, the Tribunal --
24 (a) may declare the nomination to be valid; and
25 (b) may make an order varying the terms of the nomination
26 in the manner the Tribunal considers most likely to give
27 effect to the intention of the person who made the
28 nomination.
29 (3) A declaration made under subsection (1) or (2)(a) has effect
30 according to its terms.
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s. 430
1 430. Revocation of nomination
2 The Tribunal may revoke a nomination if satisfied that the
3 nominated person is not an appropriate person to perform the
4 role of the nominated person because --
5 (a) the person is likely, in performing that role, to adversely
6 affect to a significant degree the interests of the person
7 who made the nomination; or
8 (b) the person is not capable of performing that role because
9 of mental or physical incapacity; or
10 (c) the person is not willing, or is not reasonably able, to
11 perform that role.
12 431. Parties to proceeding
13 The parties to a proceeding in relation to an application under
14 this Division are --
15 (a) the person who made the nomination; and
16 (b) the nominated person; and
17 (c) if the applicant is not a person referred to in
18 paragraph (a) or (b) -- the applicant; and
19 (d) any other person who, in the opinion of the Tribunal, has
20 a sufficient interest in the matter.
21 Division 11 -- Review of decisions affecting rights
22 432. Application for review
23 (1) A person specified in subsection (2) may apply to the Tribunal
24 for a review of a decision made under this Act affecting a
25 person's rights under this Act.
26 (2) An application may be made under subsection (1) by any of
27 these people --
28 (a) the person whose right is affected;
29 (b) a carer, close family member or other personal support
30 person of the person whose right is affected;
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1 (c) a mental health advocate;
2 (d) any other person who, in the opinion of the Tribunal, has
3 a sufficient interest in the matter.
4 (3) The Tribunal can only review a decision under subsection (1) if
5 satisfied that the matter cannot be heard and determined by the
6 Tribunal under another Division of this Part.
7 433. Parties to proceeding
8 The parties to a proceeding in relation to the application are --
9 (a) the person whose rights it is alleged are affected; and
10 (b) if the applicant is not the person referred to in
11 paragraph (a) -- the applicant; and
12 (c) any other person who, in the opinion of the Tribunal, has
13 a sufficient interest in the matter.
14 434. What Tribunal may do on completing review
15 On completing the review, the Tribunal may make any orders,
16 and give any directions, the Tribunal considers appropriate.
17 Division 12 -- Procedural matters
18 Subdivision 1 -- Proceedings generally
19 435. Lodgment of documents
20 An application or other document required to be made or given
21 to the Tribunal must be lodged at the office of the Tribunal.
22 436. Sittings
23 The Tribunal sits at the times, and in the places in the State,
24 determined by the President of the Tribunal.
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1 437. Conduct of proceedings
2 (1) A proceeding must be conducted with as little formality and
3 technicality, and as speedily, as a proper consideration of the
4 matter before the Tribunal permits.
5 (2) In a proceeding, the Tribunal is bound by the rules of natural
6 justice.
7 (3) Subject to this Part, the practice and procedure of the Tribunal
8 in a proceeding is --
9 (a) as provided for in the rules made under section 470; or
10 (b) if no provision is made in the rules -- as determined by
11 the Tribunal.
12 438. Presiding member
13 The presiding member of the Tribunal as constituted for a
14 proceeding is the member of the Tribunal as so constituted who
15 is a lawyer.
16 439. Deciding questions in proceedings
17 (1) In this section --
18 question of law includes a question of mixed law and fact.
19 (2) A question in a proceeding (other than a question of law) must
20 be resolved according to the opinion of the majority of the
21 members constituting the Tribunal for the proceeding.
22 (3) A question of law in a proceeding before the Tribunal must be
23 resolved according to the opinion of the presiding member.
24 440. Assistance from persons with relevant knowledge or
25 experience
26 The Tribunal may engage or appoint one or more persons with
27 knowledge or experience that the Tribunal considers relevant to
28 a proceeding to assist the Tribunal in the proceeding.
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1 441. No fees payable
2 No fees are payable in relation to --
3 (a) any application made under this Part; or
4 (b) any proceeding of the Tribunal under this Part.
5 442. Each party to bear own costs
6 Subject to section 443(1)(b), each party must bear the party's
7 own costs.
8 443. Frivolous, vexatious or improper proceedings
9 (1) The Tribunal may, if satisfied that a proceeding is frivolous or
10 vexatious or has been brought for an improper purpose --
11 (a) dismiss the proceeding; and
12 (b) make any order as to costs that the Tribunal considers
13 appropriate; and
14 (c) on the application of a party, order that the party who
15 instituted the proceeding cannot institute a proceeding of
16 a kind specified in the order without the leave of the
17 Tribunal.
18 (2) An order made under subsection (1)(c) has effect despite any
19 other provision of this Part.
20 (3) The Tribunal may amend or revoke an order made under
21 subsection (1)(c).
22 Subdivision 2 -- Notice of proceedings
23 444. Notice of applications
24 (1) If the person concerned in an application is an adult, the
25 Tribunal must give a copy of the application to --
26 (a) if the person concerned is not the applicant -- the
27 person concerned and the person concerned's
28 representative under section 447(1)(a) or (b); and
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1 (b) each of the other parties; and
2 (c) any carer, close family member or other personal
3 support person of the person concerned --
4 (i) who is not the person concerned's representative
5 under section 447(1)(a) or (b) or a party; and
6 (ii) whose name and contact details are provided to
7 the Tribunal.
8 (2) If the person concerned in an application is a child, the Tribunal
9 must give a copy of the application to --
10 (a) if the child is not the applicant and --
11 (i) section 448(1) applies in respect of the child --
12 the child and the child's representative under
13 section 448(1)(b) or (c); or
14 (ii) section 449(1) applies in respect of the child --
15 the child's representative under that provision;
16 and
17 (b) if the child's parent or guardian is not the child's
18 representative under section 448(1)(b) or (c) or 449(1)
19 or a party -- the child's parent or guardian; and
20 (c) each of the other parties who is not the applicant; and
21 (d) any carer, close family member or other personal
22 support person of the child --
23 (i) who is not the child's representative under
24 section 448(1)(b) or (c) or 449(1) or a party; and
25 (ii) whose name and contact details are provided to
26 the Tribunal;
27 and
28 (e) if a mental health advocate is not also a party -- the
29 Chief Mental Health Advocate.
30 (3) Without limiting the requirement under subsection (1)(c)
31 or (2)(d), the requirement is taken to have been complied with if
32 the Tribunal ensures that reasonable efforts to give to any carer,
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s. 445
1 close family member or other personal support person a copy of
2 the application continue to be made until the first of these things
3 occurs --
4 (a) at least one carer, close family member or other personal
5 support person is given a copy of the application;
6 (b) it is reasonable for the Tribunal to conclude that no
7 carer, close family member or other personal support
8 person can be given a copy of the application.
9 445. Notice of hearings
10 (1) If the person concerned in a proceeding is an adult, the Tribunal
11 must give notice of the date, time and place of any hearing to --
12 (a) the person concerned or the person concerned's
13 representative under section 447(1)(a) or (b); and
14 (b) each of the other parties; and
15 (c) any carer, close family member or other personal
16 support person of the person concerned --
17 (i) who is not the person concerned's representative
18 under section 447(1)(a) or (b) or a party; and
19 (ii) whose name and contact details are provided to
20 the Tribunal.
21 (2) If the person concerned in a proceeding is a child, the Tribunal
22 must give notice of the date, time and place of any hearing to --
23 (a) if --
24 (i) section 448(1) applies in respect of the child --
25 the child or the child's representative under
26 section 448(1)(b) or (c); or
27 (ii) section 449(1) applies in respect of the child --
28 the child's representative under that provision;
29 and
30 (b) if the child's parent or guardian is not the child's
31 representative under section 448(1)(b) or (c) or 449(1)
32 or a party -- the child's parent or guardian; and
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s. 446
1 (c) each of the other parties; and
2 (d) any carer, close family member or other personal
3 support person of the child --
4 (i) who is not the child's representative under
5 section 448(1)(b) or (c) or 449(1) or a party; and
6 (ii) whose name and contact details are provided to
7 the Tribunal;
8 and
9 (e) if a mental health advocate is not also a party -- the
10 Chief Mental Health Advocate.
11 (3) Without limiting the requirement under subsection (1)(c)
12 or (2)(d), the requirement is taken to have been complied with if
13 the Tribunal ensures that reasonable efforts to give any carer,
14 close family member or other personal support person notice of
15 the hearing continue to be made until the first of these things
16 occurs --
17 (a) at least one carer, close family member or other personal
18 support person is notified of the hearing;
19 (b) it is reasonable for the Tribunal to conclude that no
20 carer, close family member or other personal support
21 person can be notified of the application.
22 446. Tribunal may request information from SAT about person's
23 guardian
24 (1) For the purpose of giving under section 444 or 445 a copy of an
25 application or notice of a hearing to the guardian of an adult, the
26 Tribunal may request the State Administrative Tribunal for the
27 name and contact details of the adult's guardian.
28 (2) The State Administrative Tribunal may comply with any request
29 made under subsection (1).
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s. 447
1 Subdivision 3 -- Appearance and representation
2 447. Party is an adult
3 (1) In a proceeding, a party who is an adult --
4 (a) may appear in person or be represented by another
5 person; or
6 (b) must be represented by another person if the Tribunal
7 makes an order under subsection (2) in respect of the
8 party.
9 (2) The Tribunal may make an order that the party must be
10 represented in the proceeding if, in the Tribunal's opinion, it is
11 not in the best interests of the party for the party to appear in
12 person in the proceeding.
13 (3) Even though a party who is an adult is represented in the
14 proceeding, the party is entitled to express in person his or her
15 views about any matter arising in the course of the proceeding
16 that may affect the party.
17 Note for section 447:
18 For the purpose of deciding under section 447(2) what is or is not in the best
19 interests of a party, Part 2 Division 3 applies.
20 448. Party is a child with capacity to consent
21 (1) In a proceeding, a party who is a child with sufficient maturity
22 and understanding to make reasonable decisions about matters
23 relating to himself or herself --
24 (a) may appear in person; or
25 (b) may be represented by any of these people --
26 (i) a legal practitioner;
27 (ii) a mental health advocate;
28 (iii) the child's parent or guardian unless the Tribunal
29 makes an order under section 454(2)(b) in
30 respect of the child's parent or guardian;
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1 (iv) any other person who, in the Tribunal's opinion,
2 is willing and able to represent the child's
3 interests; or
4 (c) must be represented by another person if the Tribunal
5 makes an order under subsection (2) in respect of the
6 party.
7 (2) The Tribunal may make an order that the party must be
8 represented in the proceeding if, in the Tribunal's opinion, it is
9 not in the best interests of the party for the party to appear in
10 person in the proceeding.
11 (3) Even though a party who is a child referred to in subsection (1)
12 is represented in the proceeding, the child is entitled to express
13 in person his or her views about any matter arising in the course
14 of the proceeding that may affect the child.
15 Note for section 448:
16 For the purpose of deciding under section 448(2) what is or is not in the best
17 interests of a party, Part 2 Division 3 applies.
18 449. Party is a child with no capacity to consent
19 (1) In a proceeding, a party who is a child who does not have
20 sufficient maturity or understanding to make reasonable
21 decisions about matters relating to himself or herself must be
22 represented by one of these people --
23 (a) a legal practitioner;
24 (b) a mental health advocate;
25 (c) the child's parent or guardian unless the Tribunal makes
26 an order under section 454(2)(b) in respect of the child's
27 parent or guardian;
28 (d) any other person who, in the Tribunal's opinion, can
29 represent the child's interests.
30 (2) Even though a party who is a child referred to in subsection (1)
31 is represented in a proceeding and the child does not have the
32 maturity or understanding referred to in subsection (1), the child
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s. 450
1 is entitled to express in person his or her views about any matter
2 arising in the course of the proceeding that may affect the child.
3 450. Tribunal may make arrangements for representation
4 The Tribunal may make arrangements for a party to be
5 represented at a hearing if the party wants the Tribunal to make
6 such an arrangement on the party's behalf.
7 451. Legal representation of person with mental illness
8 The fact that a person has a mental illness, or is being provided
9 with treatment for a mental illness, is presumed not to be an
10 impediment to the representation of the person by a legal
11 practitioner before the Tribunal or to the person giving
12 instructions to a legal practitioner for the purpose of that
13 representation.
14 452. Representative must not be paid
15 (1) In this section --
16 prescribed person means --
17 (a) a legal practitioner; or
18 (b) a mental health advocate; or
19 (c) a person prescribed by the regulations for this definition.
20 (2) A person who is not a prescribed person must not demand or
21 receive any remuneration for representing a party in a
22 proceeding.
23 Penalty:
24 (a) for a first offence, a fine of $1 000;
25 (b) for a second or subsequent offence, a fine of $10 000.
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s. 453
1 Subdivision 4 -- Hearings and evidence
2 453. Nature of review proceedings
3 (1) In this section --
4 decision-maker, in relation to a review proceeding, means --
5 (a) the psychiatrist who made the involuntary treatment
6 order; or
7 (b) the medical practitioner who admitted the long-term
8 voluntary patient; or
9 (c) the psychiatrist who made the decision under
10 section 262 to make, confirm or amend the order
11 prohibiting, or limiting the extent of, the exercise of the
12 right;
13 reviewable decision, in relation to a review proceeding,
14 means --
15 (a) the decision to make the involuntary treatment order; or
16 (b) the decision to admit the long-term voluntary patient; or
17 (c) the decision under section 262 to make, confirm or
18 amend the order prohibiting, or limiting the extent of,
19 the exercise of the right;
20 review proceeding means --
21 (a) a review under Division 3 of an involuntary treatment
22 order; or
23 (b) a review under Division 5 of a long-term voluntary
24 inpatient's admission; or
25 (c) a review under Division 9 of an order made under
26 section 262 prohibiting a patient from exercising, or
27 limiting the extent to which a patient can exercise, a
28 right under section 261.
29 (2) A review proceeding is a hearing de novo and is not confined to
30 material that was before the decision-maker but may involve the
31 consideration of new material whether or not it existed when the
32 reviewable decision was made.
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s. 454
1 (3) The purpose of a review proceeding is to produce the correct
2 and preferable decision at the time of the Tribunal's decision on
3 the review proceeding.
4 454. Closed hearings
5 (1) A hearing is not open to the public unless the Tribunal orders
6 that the hearing or a part of the hearing is open to the public.
7 (2) The Tribunal may, on the application of any person or on its
8 own initiative, make an order --
9 (a) permitting a specified person to be present at a hearing
10 or part of a hearing; or
11 (b) excluding a specified person (including a witness) from
12 a hearing or part of a hearing.
13 (3) Despite section 467, the Tribunal must provide reasons for
14 making an order under this section at the time when the
15 Tribunal makes the order.
16 (4) The operation of this section is not limited by section 456.
17 Note for section 454:
18 Any reasons provided under section 454(3) must be provided in accordance
19 with section 9(2).
20 455. Conduct of hearing in absence of party
21 (1) The Tribunal may conduct a hearing in the absence of a party if
22 satisfied that --
23 (a) the party has been given notice of the hearing; and
24 (b) it is in the best interests of the person concerned in the
25 proceeding for the hearing not to be adjourned.
26 456. Person chosen by person concerned may be present
27 (1) A person chosen by the person concerned in a proceeding may
28 be present at a hearing unless the Tribunal makes an order under
29 section 454(2)(b) excluding the person from the hearing or a
30 part of the hearing.
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1 (2) The Tribunal may make an order referred to in subsection (1) on
2 the application of any person if satisfied that it is not in the best
3 interests of the person concerned for the person to be present at
4 the hearing or the part of the hearing.
5 Note for section 456:
6 For the purpose of deciding under section 456(2) what is or is not in the best
7 interests of the person concerned in a proceeding, Part 2 Division 3 applies.
8 457. Right to be heard
9 The Tribunal must give each party a reasonable opportunity --
10 (a) to call or give evidence; and
11 (b) to examine or cross-examine witnesses; and
12 (c) to make submissions.
13 458. Evidence generally
14 (1) The Tribunal is not bound by the rules of evidence but may
15 inform itself of a matter relevant to a proceeding in any manner
16 the Tribunal considers appropriate.
17 (2) Evidence in a proceeding may be given orally or in writing.
18 (3) The Tribunal may require evidence in a proceeding to be given
19 on oath or by affidavit.
20 (4) The presiding member in a proceeding may direct a person
21 appearing as a witness --
22 (a) to answer a question relevant to the proceeding; or
23 (b) to produce a document relevant to the proceeding.
24 (5) A person appearing as a witness has the same protection and
25 immunity as a witness has in a proceeding in the Supreme
26 Court.
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s. 459
1 459. Oral evidence about restricted information
2 (1) In this section --
3 restricted information means information in a document to
4 which a person is not entitled to have access because of
5 section 249(1)(a) or (b) or (3).
6 (2) At a hearing --
7 (a) oral evidence about restricted information cannot be
8 given in the presence of the person who is not entitled to
9 have access to the document containing the restricted
10 information; and
11 (b) a witness cannot be examined or cross-examined about
12 restricted information in the presence of that person; and
13 (c) an oral submission about restricted information cannot
14 be made in the presence of that person.
15 (3) The Tribunal must request the person to leave the hearing while
16 the evidence is given, the examination or cross-examination is
17 conducted or the submission is made.
18 (4) If the person refuses to comply with the Tribunal's request, the
19 Tribunal must make an order excluding the person from the
20 hearing while the evidence is given, the examination or
21 cross-examination is conducted or the submission is made.
22 460. Summons to give evidence or produce documents
23 The Tribunal may, by issuing a summons signed on behalf of
24 the Tribunal by a member or the registrar and serving the
25 summons on the person to whom it is addressed, require the
26 person to attend before the Tribunal at the time and place
27 specified in the summons --
28 (a) to give evidence in a proceeding; or
29 (b) to produce a document relevant to a proceeding that is in
30 the person's custody or control and is specified in the
31 summons; or
32 (c) to do both of those things.
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s. 461
1 461. Self-incrimination
2 (1) A person is not excused from complying with a direction given
3 to the person under section 458(4), or a summons served on the
4 person under section 460, on the ground that the answer to a
5 question or the production of a document might tend to
6 incriminate the person or expose the person to a criminal
7 penalty.
8 (2) However, any answer given or document produced by a person
9 in compliance with a direction given to the person under
10 section 458(4), or a summons served on the person under
11 section 460, is not admissible in evidence in any criminal
12 proceedings against the person other than proceedings for an
13 offence under section 463(1)(d) or (e).
14 462. Powers in relation to documents produced
15 In relation to a document produced to the Tribunal in a
16 proceeding, the Tribunal may do any of these things --
17 (a) inspect the document;
18 (b) retain the document for a reasonable period;
19 (c) take a copy of the whole or any part of the document.
20 463. Offences relating to evidence and documents
21 (1) A person commits an offence if the person --
22 (a) without reasonable excuse, proof of which is on the
23 person, does not swear an oath or make an affirmation
24 when required under section 458(3); or
25 (b) without reasonable excuse, proof of which is on the
26 person, does not answer a question or produce a
27 document when directed to do so under section 458(4);
28 or
29 (c) without reasonable excuse, proof of which is on the
30 person, does not attend before the Tribunal as required
31 by a summons served on the person under section 460;
32 or
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s. 464
1 (d) gives an answer to the Tribunal in a proceeding that the
2 person knows is false or misleading in a material
3 particular; or
4 (e) produces a document or provides any other information
5 to the Tribunal in a proceeding that the person knows is
6 false or misleading in a material particular --
7 (i) without indicating that the document or other
8 information is false or misleading and, to the
9 extent the person can, how the document or other
10 information is false or misleading; and
11 (ii) if the person has or can reasonably obtain the
12 correct information -- without providing the
13 correct information.
14 Penalty: a fine of $5 000.
15 (2) It is enough for a prosecution notice lodged against a person for
16 an offence under subsection (1)(d) or (e) to state that the
17 answer, document or information was false or misleading to the
18 person's knowledge without stating which.
19 464. Evidence and findings in other proceedings
20 In a proceeding, the Tribunal --
21 (a) may receive in evidence the transcript of evidence in a
22 proceeding before a court or other person or body acting
23 judicially and may draw any conclusion of fact from that
24 evidence that the Tribunal considers appropriate; and
25 (b) may adopt a finding, decision or judgment of a court or
26 other person or body acting judicially that is relevant to
27 the proceeding.
28 465. Hearings to be recorded
29 The registrar must ensure that each hearing is recorded and the
30 recording is kept in a form from which a transcript of the
31 hearing can be prepared if required.
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Division 12 Procedural matters
s. 466
1 466. Publication of information about proceedings
2 (1) In this section --
3 information about a proceeding means --
4 (a) an account of a proceeding; or
5 (b) any evidence in a proceeding; or
6 (c) the contents of a document, or of a part of a document,
7 produced in a proceeding; or
8 (d) any other information about a proceeding;
9 publish means to disseminate to the public or a section of the
10 public by any means, including --
11 (a) in a newspaper or periodical publication; or
12 (b) by radio broadcast, television or other electronic means.
13 (2) A person must not publish information about a proceeding that
14 identifies --
15 (a) a party; or
16 (b) a person who is related to or associated with a party; or
17 (c) a witness; or
18 (d) a person who is or is alleged to be concerned in any
19 other way in a matter to which the proceeding relates.
20 (3) A person must not publish a list of proceedings identified by
21 reference to the names of the parties except --
22 (a) by displaying in the Tribunal's premises a notice listing
23 the proceedings; or
24 (b) as permitted by rules made under section 470.
25 (4) A person who contravenes subsection (2) or (3) commits a
26 crime.
27 Penalty:
28 (a) for an individual, a fine of $5 000 and imprisonment
29 for 12 months;
30 (b) for a body corporate, a fine of $10 000.
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s. 466
1 Summary conviction penalty:
2 (a) for an individual, a fine of $2 500;
3 (b) for a body corporate, a fine of $5 000.
4 (5) A prosecution for an offence under subsection (4) cannot be
5 commenced except with the written consent of the Minister.
6 (6) Without limiting subsection (2), information about a proceeding
7 identifies a person if --
8 (a) it contains particulars that are sufficient to identify the
9 person to a member of the public or a member of the
10 section of the public to which the information is
11 disseminated, being any of these particulars --
12 (i) the name, title, pseudonym or alias of the person;
13 (ii) the address of any premises where the person
14 resides or works or the locality where those
15 premises are situated;
16 (iii) the physical description or the style of dress of
17 the person;
18 (iv) any employment or occupation engaged in, or
19 any profession practised or calling pursued by,
20 the person or any official or honorary position
21 held by the person;
22 (v) the relationship of the person to identified
23 relatives of the person or the association of the
24 person with identified friends or identified
25 business, official or professional acquaintances
26 of the person;
27 (vi) the recreational interests, or the political,
28 philosophical or religious beliefs or interests, of
29 the person;
30 (vii) any real or personal property in which the person
31 has an interest or with which the person is
32 otherwise associated;
33 or
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Division 12 Procedural matters
s. 466
1 (b) it is accompanied by a picture of the person; or
2 (c) it is spoken in whole or in part by the person and the
3 person's voice is sufficient to identify the person to a
4 member of the public or a member of the section of the
5 public to which the account is disseminated.
6 (7) Subsections (2) and (3) do not apply in relation to any of these
7 publications --
8 (a) the communication of a transcript of evidence or other
9 document to a person concerned in a proceeding in a
10 court or tribunal for use in connection with the
11 proceeding;
12 (b) the communication of a transcript of evidence or other
13 document to --
14 (i) a body that is responsible for disciplining
15 members of a profession or occupation; or
16 (ii) a person concerned in a proceeding before such a
17 body;
18 (c) the communication of a transcript of evidence or other
19 document to a body that grants assistance by way of
20 legal aid for the purpose of making a decision as to
21 whether such assistance should be granted or continued
22 in a particular case;
23 (d) the publication of a notice or report at the direction of
24 the Tribunal, the State Administrative Tribunal or a
25 court;
26 (e) a publication genuinely intended primarily for the use of
27 members of a profession or occupation, being --
28 (i) a separate volume of, or a volume in a part of a
29 series of, law reports; or
30 (ii) a decision of a court or tribunal published from
31 information stored electronically or otherwise; or
32 (iii) any other publication of a technical character;
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s. 467
1 (f) the publication or other dissemination --
2 (i) to a person who is a member of a profession or
3 occupation in connection with the practice by the
4 person of that profession or occupation or in the
5 course of any form of professional or
6 occupational training in which the person is
7 involved; or
8 (ii) to a person who is a student in connection with
9 the person's studies.
10 (8) Subsection (7)(e) does not authorise the publication of the name
11 of a party in a law report or other publication referred to in that
12 provision.
13 (9) Without limiting subsection (2) or (3), the Tribunal may make
14 an order in relation to a particular proceeding that information
15 about the proceeding that is specified in the order --
16 (a) must not be published; or
17 (b) must not be published except in the manner specified, or
18 to a person specified, in the order.
19 (10) A person who contravenes an order made under subsection (9)
20 commits an offence.
21 Penalty for an offence under this subsection: a fine of $5 000.
22 Subdivision 5 -- Decisions in proceedings
23 467. Reasons for decision
24 (1) A party may request the Tribunal to provide the party with
25 reasons for the Tribunal's decision in the proceeding.
26 (2) The request must be made --
27 (a) on or within 28 days after the day on which the Tribunal
28 makes a decision in the proceeding; or
29 (b) by the end of any extension of that period under
30 section 468(2).
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Division 12 Procedural matters
s. 468
1 (3) The Tribunal must comply with the request.
2 Note for section 467:
3 Any reasons provided under section 467(3) must be provided in accordance
4 with section 9(2).
5 468. Extension of time to request reasons
6 (1) A party may, whether before or after the expiry of the 28-day
7 period referred to in section 467(2)(a), request the President of
8 the Tribunal to extend the period within which the party may
9 request the Tribunal to provide the party with reasons for a
10 decision in the proceeding.
11 (2) The President of the Tribunal may extend the period within
12 which a party may request reasons for a decision in the
13 proceeding from the end of the 28-day period referred to in
14 section 467(2)(a) for the further period that the President
15 specifies if the President considers that it is in the interests of
16 justice to do so.
17 469. Giving effect to Tribunal's decisions
18 (1) In this section --
19 decision, of the Tribunal, does not include --
20 (a) a recommendation made by the Tribunal under
21 section 395(3) about an involuntary patient's treatment
22 support and discharge plan; or
23 (b) a recommendation made by the Tribunal under
24 section 406 about a long-term voluntary inpatient's
25 admission as an inpatient.
26 (2) A person who does not give effect to a decision of the Tribunal
27 according to its terms commits an offence.
28 Penalty for an offence under this subsection: a fine of $10 000.
page 320
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Mental Health Tribunal Part 21
Rules Division 13
s. 470
1 Division 13 -- Rules
2 470. Power to make
3 The President of the Tribunal may make rules for the Tribunal,
4 but only after consultation with the members appointed under
5 section 474(1).
6 471. Content
7 (1) Rules made under section 470 may make provision for any
8 matter that is --
9 (a) required or permitted by this Act to be provided for in
10 the rules; or
11 (b) necessary or convenient for the Tribunal to operate
12 efficiently, economically and expeditiously.
13 (2) Without limiting subsection (1), the rules may provide for any
14 of these things --
15 (a) the organisation and management of the business of the
16 Tribunal;
17 (b) custody and use of the Tribunal's seal;
18 (c) the practice and procedure of the Tribunal in a
19 proceeding, including --
20 (i) the participation by a party, a party's
21 representative or a witness in a hearing by
22 telephone, video link or other means of
23 communication; and
24 (ii) the conduct of all or part of a proceeding entirely
25 on the basis of documents and without the
26 parties, their representatives or any witnesses
27 appearing at or participating in a hearing;
28 (d) the form in which documents are to be lodged with or
29 issued by the Tribunal or to be served, which may be an
30 electronic form;
31 (e) the Tribunal's records.
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Division 14 Tribunal members
s. 472
1 472. Publication and tabling
2 (1) Rules made under section 470 --
3 (a) must be published in the Gazette; and
4 (b) take effect on or from the date of publication or on or
5 from any later date or dates that are specified in the
6 rules; and
7 (c) must be laid before each House of Parliament within
8 6 sitting days of the House after the day on which the
9 rules were published.
10 (2) A rule or a part of a rule ceases to have effect if either House of
11 Parliament passes a resolution, of which notice is given at any
12 time on or within 6 sitting days of the House after the day on
13 which the rule was laid before it, disallowing the rule or the part
14 of the rule.
15 (3) However, the validity of any proceedings taken or of anything
16 done in the meantime under the rule or the part of the rule is not
17 affected by the disallowance.
18 (4) Notice of the passage of disallowing a rule or any part of a rule
19 must be published in the Gazette as soon as practicable.
20 Division 14 -- Tribunal members
21 473. President of Tribunal
22 There is to be a President of the Mental Health Tribunal who is
23 appointed by the Governor on the recommendation of the
24 Minister.
25 474. Other members
26 (1) There are to be 2 or more members of the Mental Health
27 Tribunal in addition to the President, each of whom is appointed
28 by the Governor on the recommendation of the Minister.
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Tribunal members Division 14
s. 475
1 (2) Any number of persons may be appointed under subsection (1)
2 provided that the membership of the Tribunal (including the
3 President of the Tribunal) includes --
4 (a) at least one lawyer; and
5 (b) at least one psychiatrist; and
6 (c) at least one person who is not --
7 (i) a lawyer; or
8 (ii) a medical practitioner; or
9 (iii) a mental health practitioner who is a staff
10 member of a mental health service or private
11 psychiatric hostel.
12 475. Terms and conditions of appointment
13 (1) The President of the Tribunal may be appointed on a full-time
14 or part-time basis.
15 (2) A member appointed under section 474(1) may be appointed on
16 a full-time, part-time or sessional basis.
17 (3) A member --
18 (a) holds office for the period (not exceeding 5 years)
19 specified in the instrument of appointment; and
20 (b) is eligible for reappointment.
21 (4) Subject to this Division, a member holds office on the terms and
22 conditions of appointment determined by the Minister.
23 476. Remuneration
24 (1) The President of the Tribunal is entitled to the remuneration
25 determined by the Salaries and Allowances Tribunal under the
26 Salaries and Allowances Act 1975 and, for the purposes of that
27 Act and any other written law, the office of President of the
28 Mental Health Tribunal is taken to be prescribed under
29 section 6(1)(e) of that Act for the purposes of section 6 of that
30 Act.
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Division 14 Tribunal members
s. 477
1 (2) A member appointed under section 474(1) is entitled to the
2 remuneration determined by the Minister on the
3 recommendation of the Public Sector Commissioner.
4 477. Resignation
5 (1) A member may resign from office by writing signed and given
6 to the Minister.
7 (2) The resignation takes effect on the later of the following --
8 (a) receipt by the Minister;
9 (b) the day specified in the resignation.
10 478. Removal from office
11 The Governor may remove a person from the office of member
12 on any of these grounds --
13 (a) mental or physical incapacity;
14 (b) incompetence;
15 (c) neglect of duty;
16 (d) misconduct;
17 (e) ceasing to have a particular status if the person was
18 appointed to that office on the basis of having that
19 status;
20 (f) attaining a particular status if the person was appointed
21 to that office on the basis of not having that status.
22 479. Acting members
23 (1) The Minister may appoint a person to act in --
24 (a) the office of President of the Mental Health Tribunal
25 referred to in section 473; or
26 (b) the office of member of the Mental Health Tribunal
27 referred to in section 474(1).
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Tribunal members Division 14
s. 480
1 (2) A person may be appointed under subsection (1) to act in an
2 office --
3 (a) during a vacancy in the office, whether or not an
4 appointment has previously been made to the office; or
5 (b) during a period, or during all periods, when the person
6 holding the office or a person acting in the office under
7 an appointment under subsection (1) is on leave or is
8 otherwise unable to perform the functions of the office.
9 (3) An appointment under subsection (1) may be expressed to have
10 effect only in the circumstances specified in the instrument of
11 appointment.
12 (4) The Minister may --
13 (a) determine the terms and conditions of an appointment
14 under subsection (1), including as to remuneration; and
15 (b) terminate an appointment under subsection (1) at any
16 time.
17 (5) The validity of anything done by or in relation to a person
18 purporting to act under an appointment under subsection (1) is
19 not to be called into question on any of these grounds --
20 (a) the occasion for the appointment had not arisen;
21 (b) there is a defect or irregularity in the appointment;
22 (c) the appointment had ceased to have effect;
23 (d) the occasion for the person to act had not arisen or had
24 ceased.
25 (6) A person cannot act under an appointment under subsection (1)
26 for a continuous period exceeding 12 months.
27 480. Delegation by President
28 (1) The President of the Tribunal may delegate to another member
29 or the registrar any power or duty of the President of the
30 Tribunal under another provision of this Act that is of an
31 administrative nature.
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Division 15 Registrar and other staff
s. 481
1 (2) The President of the Tribunal may delegate the power or duty
2 under section 382 to a member who is a lawyer.
3 (3) A delegation under this section must be in writing signed by the
4 President of the Tribunal.
5 (4) A member to whom a power or duty is delegated under this
6 section cannot delegate that power or duty.
7 (5) A delegation under this section to the registrar may expressly
8 authorise the registrar to further delegate the power or duty to a
9 registry officer.
10 (6) A person exercising or performing a power or duty that has been
11 delegated to the person as authorised under this section is taken
12 to do so in accordance with the terms of the delegation unless
13 the contrary is shown.
14 (7) This section does not limit the ability of the President of the
15 Tribunal to perform a function through an officer or agent.
16 Division 15 -- Registrar and other staff
17 481. Registrar
18 There is to be a registrar of the Mental Health Tribunal who is
19 appointed under the Public Sector Management Act 1994 Part 3.
20 482. Functions of registrar
21 The functions of the registrar are --
22 (a) keeping, in accordance with the regulations, particulars
23 of each involuntary patient; and
24 (b) ensuring that a proceeding for a review under Division 3
25 of an involuntary treatment order is brought before the
26 Tribunal within the period specified under that Division
27 or, if no period is specified, as soon as practicable; and
28 (c) ensuring that any other proceeding is brought before the
29 Tribunal as soon as practicable; and
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Registrar and other staff Division 15
s. 483
1 (d) receiving any document that must be given under this
2 Act to the Tribunal and arranging for it to be dealt with
3 as soon as practicable; and
4 (e) ensuring that any document that must be given under
5 this Act by the Tribunal is given in accordance with this
6 Act and as soon as practicable; and
7 (f) generally being the executive officer of the Tribunal;
8 and
9 (g) any other functions conferred on, or delegated to, the
10 registrar by or under this Act or another written law.
11 483. President may give registrar directions
12 (1) The President of the Tribunal may give to the registrar
13 directions with respect to the performance of the registrar's
14 functions under this Act, either generally or in relation to a
15 particular matter.
16 (2) The registrar must comply with a direction given under
17 subsection (1).
18 484. Registry staff
19 Public service officers must be appointed under, or made
20 available under, the Public Sector Management Act 1994 Part 3
21 to assist the registrar in performing his or her functions under
22 this Act or another written law.
23 485. Delegation by registrar
24 (1) The registrar may delegate to a registry officer any power or
25 duty of the registrar under another provision of this Act.
26 (2) The delegation must be in writing signed by the registrar.
27 (3) A person to whom a power or duty is delegated cannot delegate
28 that power or duty.
29 (4) A person exercising or performing a power or duty that has been
30 delegated to the person under this section is taken to do so in
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Part 21 Mental Health Tribunal
Division 16 Annual reports
s. 486
1 accordance with the terms of the delegation unless the contrary
2 is shown.
3 (5) This section does not limit the ability of the registrar to perform
4 a function through an officer or agent.
5 Division 16 -- Annual reports
6 486. Annual report: preparation
7 Within 3 months after 30 June in each year, the President of the
8 Tribunal must prepare and give to the Minister a report as to the
9 general activities of the Tribunal during the financial year
10 ending on that day.
11 487. Annual report: tabling
12 (1) The Minister must cause a copy of a report referred to in
13 section 486 to be laid before each House of Parliament, or dealt
14 with under subsection (2), on or within 21 days after the day on
15 which the Minister receives the report.
16 (2) The Minister must transmit a copy of the report to the Clerk of a
17 House of Parliament if --
18 (a) at the beginning of the 21-day period referred to in
19 subsection (1), the House is not sitting; and
20 (b) in the Minister's opinion, the House will not sit during
21 that period.
22 (3) A copy of a report transmitted under subsection (2) to the Clerk
23 of a House is taken to have been laid before that House.
24 (4) The laying of a copy of a report that is taken to have occurred
25 under subsection (3) must be recorded in the Minutes, or Votes
26 and Proceedings, of the House on the first sitting day of the
27 House after the receipt of the copy by the Clerk.
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Mental Health Tribunal Part 21
Miscellaneous matters Division 17
s. 488
1 Division 17 -- Miscellaneous matters
2 488. Seal
3 The Tribunal must have a seal.
4 489. Judicial notice of certain matters
5 (1) A court or other person or body acting judicially must take
6 judicial notice of the following --
7 (a) the fact that a person is or was a member or the registrar;
8 (b) the official signature of a person who is or was a
9 member or the registrar;
10 (c) a seal of the Tribunal affixed to a document.
11 (2) A court or other person acting judicially must presume that the
12 seal of the Tribunal affixed to a document was properly affixed
13 unless the contrary is proved.
14 490. Meetings of members
15 (1) The members of the Tribunal must meet as often as necessary
16 for the effective and efficient operation of the Tribunal.
17 (2) The President --
18 (a) may convene a meeting at any time; and
19 (b) must convene a meeting if requested in writing by 2 or
20 more other members.
21 (3) The quorum for a meeting is at least one-half of the members.
22 (4) The presiding member at a meeting is --
23 (a) the President; or
24 (b) if the President is not present -- a member chosen by
25 the members present.
page 329
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Part 21 Mental Health Tribunal
Division 17 Miscellaneous matters
s. 490
1 (5) At a meeting --
2 (a) each member has a deliberative vote; and
3 (b) a question is decided by a majority of the members
4 present and voting; and
5 (c) if the votes on a question are equal -- the question must
6 be decided in the negative.
7 (6) The registrar must ensure that minutes of each meeting are kept.
8 (7) Except as provided by this section, the members can decide the
9 procedure for meetings.
page 330
Mental Health Bill 2013
Review by State Administrative Tribunal Part 22
Preliminary matters Division 1
s. 491
1 Part 22 -- Review by State Administrative Tribunal
2 Division 1 -- Preliminary matters
3 491. Terms used
4 In this Part --
5 application means an application made to the State
6 Administrative Tribunal under this Part;
7 decision, of the Mental Health Tribunal, includes an order,
8 direction or declaration made by the Mental Health Tribunal;
9 hearing means a hearing in a proceeding;
10 party means a party to a proceeding;
11 person concerned, in an application or proceeding, means the
12 patient or other person whom the application or proceeding
13 concerns;
14 proceeding means a proceeding of the State Administrative
15 Tribunal under this Part and includes part of a proceeding.
16 Division 2 -- Jurisdiction
17 492. Review of decisions of Mental Health Tribunal
18 (1) A person in respect of whom the Mental Health Tribunal makes
19 a decision who is dissatisfied with the decision may apply to the
20 State Administrative Tribunal for a review of the decision.
21 (2) Any other person who, in the State Administrative Tribunal's
22 opinion, has a sufficient interest in the matter may, with the
23 leave of the State Administrative Tribunal, apply to the State
24 Administrative Tribunal for a review of a decision of the Mental
25 Health Tribunal.
page 331
Mental Health Bill 2013
Part 22 Review by State Administrative Tribunal
Division 3 Constitution
s. 493
1 493. Determination of questions of law before Mental Health
2 Tribunal
3 (1) In this section --
4 question of law does not include a question of mixed law and
5 fact.
6 (2) The Mental Health Tribunal may apply to the State
7 Administrative Tribunal for a determination on a question of
8 law that arises in a proceeding before the Mental Health
9 Tribunal.
10 Division 3 -- Constitution
11 494. Constitution generally
12 For the purpose of a proceeding, except as provided by
13 sections 495 and 496, the State Administrative Tribunal must be
14 constituted by 3 members as follows --
15 (a) a judicial member, a senior member or a legally
16 qualified member;
17 (b) if the person concerned in the proceeding is an adult --
18 a member who is a psychiatrist;
19 (c) if the person concerned in the proceeding is a child -- a
20 member who is a child and adolescent psychiatrist;
21 (d) a member who is not --
22 (i) a legally qualified member; or
23 (ii) a medical practitioner; or
24 (iii) a mental health practitioner who is a staff
25 member of a mental health service or private
26 psychiatric hostel.
27 495. Constitution for psychosurgical matters
28 For the purpose of a proceeding under section 492 on an
29 application for review of a decision under Part 21 Division 7,
page 332
Mental Health Bill 2013
Review by State Administrative Tribunal Part 22
Procedural matters Division 4
s. 496
1 the State Administrative Tribunal must be constituted by these
2 5 members --
3 (a) a judicial member, a senior member or a legally
4 qualified member;
5 (b) a neurosurgeon appointed as a member after
6 consultation by the Minister responsible for
7 administering the State Administrative Tribunal
8 Act 2004 with the Health Minister held after
9 consultation by the Health Minister with the Royal
10 Australasian College of Surgeons;
11 (c) if the patient is an adult -- a member who is a
12 psychiatrist;
13 (d) if the patient is a child -- a child and adolescent
14 psychiatrist;
15 (e) 2 members, neither of whom is --
16 (i) a legally qualified member; or
17 (ii) a medical practitioner; or
18 (iii) a mental health practitioner who is a staff
19 member of a mental health service or private
20 psychiatric hostel.
21 496. Constitution for determining questions of law
22 For the purpose of a proceeding under section 493 to determine
23 a question of law, the State Administrative Tribunal must be
24 constituted by a judicial member.
25 Division 4 -- Procedural matters
26 497. No fees payable
27 No fees are payable in relation to an application or proceeding.
page 333
Mental Health Bill 2013
Part 22 Review by State Administrative Tribunal
Division 4 Procedural matters
s. 498
1 498. Appearance and representation
2 (1) At a hearing, a party --
3 (a) may appear before the State Administrative Tribunal in
4 person or be represented by another person; or
5 (b) must be represented by another person if the State
6 Administrative Tribunal makes an order under
7 subsection (2) in respect of the party.
8 (2) The State Administrative Tribunal may make an order that the
9 party must be represented at the hearing if, in the State
10 Administrative Tribunal's opinion, it is not in the best interests
11 of the party for the party to appear in person at the hearing.
12 (3) The State Administrative Tribunal may make arrangements for
13 a party to a proceeding under this Part to be represented at a
14 hearing if the party wants the State Administrative Tribunal to
15 make such an arrangement on the party's behalf.
16 (4) The fact that a person has a mental illness, or is being provided
17 with treatment for a mental illness, is presumed not to be an
18 impediment to the representation of the person by a legal
19 practitioner before the State Administrative Tribunal or to the
20 person giving instructions to a legal practitioner for the purpose
21 of that representation.
22 (5) Despite the State Administrative Tribunal Act 2004
23 section 39(1), a party to a proceeding under this Part may be
24 represented by a person who is not a legal practitioner or a
25 person referred to in section 39(1)(a) to (f) of that Act.
26 Note for section 498:
27 For the purpose of deciding under section 498(2) what is or is not in the best
28 interests of a party, Part 2 Division 3 applies.
29 499. Closed hearings
30 (1) A hearing is not open to the public unless the State
31 Administrative Tribunal orders that the hearing or a part of the
32 hearing is open to the public.
page 334
Mental Health Bill 2013
Review by State Administrative Tribunal Part 22
Procedural matters Division 4
s. 500
1 (2) The State Administrative Tribunal may make an order --
2 (a) permitting a specified person to be present at a hearing
3 or part of a hearing; or
4 (b) excluding a specified person (including a witness) from
5 a hearing or part of a hearing.
6 500. Publication of information about proceedings
7 (1) In this section --
8 information about a proceeding means --
9 (a) an account of a proceeding; or
10 (b) any evidence in a proceeding; or
11 (c) the contents of a document, or of a part of a document,
12 produced in a proceeding; or
13 (d) any other information about a proceeding;
14 publish means to disseminate to the public or a section of the
15 public by any means, including --
16 (a) in a newspaper or periodical publication; or
17 (b) by radio broadcast, television or other electronic means.
18 (2) A person must not publish information about a proceeding that
19 identifies --
20 (a) a party; or
21 (b) a person who is related to or associated with a party; or
22 (c) a witness; or
23 (d) a person who is or is alleged to be concerned in any
24 other way in a matter to which the proceeding relates.
25 (3) A person must not publish a list of proceedings identified by
26 reference to the names of the parties except --
27 (a) by displaying in the State Administrative Tribunal's
28 premises a notice listing the proceedings; or
29 (b) as permitted by rules made under the State
30 Administrative Tribunal Act 2004 section 170(1).
page 335
Mental Health Bill 2013
Part 22 Review by State Administrative Tribunal
Division 4 Procedural matters
s. 500
1 (4) A person who contravenes subsection (2) or (3) commits a
2 crime.
3 Penalty:
4 (a) for an individual, a fine of $5 000 and imprisonment
5 for 12 months;
6 (b) for a body corporate, a fine of $10 000.
7 Summary conviction penalty:
8 (a) for an individual, a fine of $2 500;
9 (b) for a body corporate, a fine of $5 000.
10 (5) A prosecution for an offence under subsection (4) cannot be
11 commenced except with the written consent of the Minister.
12 (6) Without limiting subsection (2), information about a proceeding
13 identifies a person if --
14 (a) it contains particulars that are sufficient to identify the
15 person to a member of the public or a member of the
16 section of the public to which the information is
17 disseminated, being any of these particulars --
18 (i) the name, title, pseudonym or alias of the person;
19 (ii) the address of any premises where the person
20 resides or works or the locality where those
21 premises are situated;
22 (iii) the physical description or the style of dress of
23 the person;
24 (iv) any employment or occupation engaged in, or
25 any profession practised or calling pursued by,
26 the person or any official or honorary position
27 held by the person;
28 (v) the relationship of the person to identified
29 relatives of the person or the association of the
30 person with identified friends or identified
31 business, official or professional acquaintances
32 of the person;
page 336
Mental Health Bill 2013
Review by State Administrative Tribunal Part 22
Procedural matters Division 4
s. 500
1 (vi) the recreational interests, or the political,
2 philosophical or religious beliefs or interests, of
3 the person;
4 (vii) any real or personal property in which the person
5 has an interest or with which the person is
6 otherwise associated;
7 or
8 (b) it is accompanied by a picture of the person; or
9 (c) it is spoken in whole or in part by the person and the
10 person's voice is sufficient to identify the person to a
11 member of the public or a member of the section of the
12 public to which the account is disseminated.
13 (7) Subsections (2) and (3) do not apply in relation to any of these
14 publications --
15 (a) the communication of a transcript of evidence or other
16 document to a person concerned in a proceeding in a
17 court or tribunal for use in connection with the
18 proceeding;
19 (b) the communication of a transcript of evidence or other
20 document to --
21 (i) a body that is responsible for disciplining
22 members of a profession or occupation; or
23 (ii) a person concerned in a proceeding before such a
24 body;
25 (c) the communication of a transcript of evidence or other
26 document to a body that grants assistance by way of
27 legal aid for the purpose of making a decision as to
28 whether such assistance should be granted or continued
29 in a particular case;
30 (d) the publication of a notice or report at the direction of
31 the State Administrative Tribunal or a court;
page 337
Mental Health Bill 2013
Part 22 Review by State Administrative Tribunal
Division 4 Procedural matters
s. 500
1 (e) a publication genuinely intended primarily for the use of
2 members of a profession or occupation, being --
3 (i) a separate volume of, or a volume in a part of a
4 series of, law reports; or
5 (ii) a decision of a court or tribunal published from
6 information stored electronically or otherwise; or
7 (iii) any other publication of a technical character;
8 (f) the publication or other dissemination --
9 (i) to a person who is a member of a profession or
10 occupation in connection with the practice by the
11 person of that profession or occupation or in the
12 course of any form of professional or
13 occupational training in which the person is
14 involved; or
15 (ii) to a person who is a student in connection with
16 the person's studies.
17 (8) Subsection (7)(e) does not authorise the publication of the name
18 of a party to a proceeding in a law report or other publication
19 referred to in that provision.
20 (9) Without limiting subsection (2) or (3), the State Administrative
21 Tribunal may make an order in relation to a particular
22 proceeding that information about the proceeding that is
23 specified in the order --
24 (a) must not be published; or
25 (b) must not be published except in the manner specified, or
26 to a person specified, in the order.
27 (10) A person who contravenes an order made under subsection (9)
28 commits an offence.
29 Penalty for an offence under this subsection: a fine of $5 000.
page 338
Mental Health Bill 2013
Review by State Administrative Tribunal Part 22
Appeals to Supreme Court Division 5
s. 501
1 Division 5 -- Appeals to Supreme Court
2 501. Appeals against SAT's decisions
3 (1) In this section --
4 decision or order means a decision or order of the State
5 Administrative Tribunal in the exercise of its jurisdiction under
6 this Act.
7 (2) A person in respect of whom a decision or order is made who is
8 dissatisfied with the decision or order may appeal, without
9 leave, under the State Administrative Tribunal Act 2004
10 section 105 against the decision or order.
11 (3) Any other person who, in the opinion of the Supreme Court, has
12 a sufficient interest in a matter in respect of which a decision or
13 order is made may appeal, with the leave of the Court, under the
14 State Administrative Tribunal Act 2004 section 105 against the
15 decision or order.
16 502. Grounds of appeal
17 The grounds of an appeal under section 501 can be --
18 (a) that the State Administrative Tribunal --
19 (i) made an error of law or of fact, or of both law
20 and fact; or
21 (ii) acted without jurisdiction or in excess of its
22 jurisdiction; or
23 (iii) did both of those things;
24 or
25 (b) that there is another sufficient reason for hearing an
26 appeal against the decision or order.
27 503. Time for appeal or leave to appeal
28 (1) An appeal under section 501(2) or an application for leave to
29 appeal under section 501(3) must be made within 28 days after
30 the decision or order is made.
page 339
Mental Health Bill 2013
Part 22 Review by State Administrative Tribunal
Division 5 Appeals to Supreme Court
s. 504
1 (2) However, the State Administrative Tribunal or the Supreme
2 Court may, if satisfied that it is just and reasonable to do so,
3 extend the period within which the appeal or application for
4 leave may be made even though the 28-day period referred to in
5 subsection (1) has expired.
6 504. Certain parties must be represented
7 The Supreme Court may make an order that a party to a
8 proceeding under this Part must be represented in the
9 proceeding if, in the Court's opinion, it is not in the best
10 interests of the party for the party to appear in person in the
11 proceeding.
page 340
Mental Health Bill 2013
Administration Part 23
Preliminary matters Division 1
s. 505
1 Part 23 -- Administration
2 Division 1 -- Preliminary matters
3 505. Term used: mental health service
4 In this Part --
5 mental health service includes a private psychiatric hostel.
6 Division 2 -- Chief Psychiatrist
7 Subdivision 1 -- Appointment, terms and conditions
8 506. Appointment
9 (1) There is to be a Chief Psychiatrist who is appointed by the
10 Governor on the recommendation of the Minister.
11 (2) Only a psychiatrist is eligible to be appointed as the Chief
12 Psychiatrist.
13 507. Terms and conditions of appointment
14 (1) The Chief Psychiatrist --
15 (a) holds office for the period (not exceeding 5 years)
16 specified in the instrument of appointment; and
17 (b) is eligible for reappointment.
18 (2) Subject to this Subdivision, the Chief Psychiatrist holds office
19 on the terms and conditions of appointment determined by the
20 Minister.
21 508. Remuneration
22 The Chief Psychiatrist is entitled to the remuneration
23 determined by the Salaries and Allowances Tribunal under the
24 Salaries and Allowances Act 1975 and, for the purposes of that
25 Act and any other written law, the office of Chief Psychiatrist is
26 taken to be prescribed under section 6(1)(e) of that Act for the
27 purposes of section 6 of that Act.
page 341
Mental Health Bill 2013
Part 23 Administration
Division 2 Chief Psychiatrist
s. 509
1 509. Resignation
2 (1) The Chief Psychiatrist may resign from office by writing signed
3 and given to the Minister.
4 (2) The resignation takes effect on the later of the following --
5 (a) receipt by the Minister;
6 (b) the day specified in the resignation.
7 510. Removal from office
8 The Governor may remove a person from the office of Chief
9 Psychiatrist on any of these grounds --
10 (a) mental or physical incapacity;
11 (b) incompetence;
12 (c) neglect of duty;
13 (d) misconduct.
14 511. Acting Chief Psychiatrist
15 (1) The Minister may appoint a psychiatrist to act in the office of
16 the Chief Psychiatrist referred to in section 506(1) --
17 (a) during a vacancy in the office, whether or not an
18 appointment has previously been made to the office; or
19 (b) during a period, or during all periods, when the person
20 holding the office or a person acting in the office under
21 an appointment under this subsection is on leave or is
22 otherwise unable to perform the functions of the office.
23 (2) An appointment under subsection (1) may be expressed to have
24 effect only in the circumstances specified in the instrument of
25 appointment.
26 (3) The Minister may --
27 (a) determine the terms and conditions of an appointment
28 under subsection (1), including as to remuneration; and
page 342
Mental Health Bill 2013
Administration Part 23
Chief Psychiatrist Division 2
s. 512
1 (b) terminate an appointment under subsection (1) at any
2 time.
3 (4) The validity of anything done by or in relation to a person
4 purporting to act under an appointment under subsection (1) is
5 not to be called into question on any of these grounds --
6 (a) the occasion for the appointment had not arisen;
7 (b) there is a defect or irregularity in the appointment;
8 (c) the appointment had ceased to have effect;
9 (d) the occasion for the person to act had not arisen or had
10 ceased.
11 (5) A person cannot act under an appointment under subsection (1)
12 for a continuous period exceeding 12 months.
13 Subdivision 2 -- Functions and powers generally
14 512. Functions generally
15 The functions of the Chief Psychiatrist are the functions
16 conferred on the Chief Psychiatrist by this Act or another
17 written law.
18 513. Responsibility for treatment and care
19 (1) The Chief Psychiatrist is responsible for overseeing the
20 treatment and care of these people --
21 (a) all voluntary patients being provided with treatment or
22 care by a mental health service;
23 (b) all involuntary patients;
24 (c) all mentally impaired accused required under the
25 MIA Act to be detained at an authorised hospital;
26 (d) all persons referred under section 26(2) or (3)(a)
27 or 36(2) for an examination to be conducted by a
28 psychiatrist at an authorised hospital or other place;
page 343
Mental Health Bill 2013
Part 23 Administration
Division 2 Chief Psychiatrist
s. 514
1 (e) all persons under an order made under section 55(1)(c)
2 or 61(1)(c) to enable an examination to be conducted by
3 a psychiatrist at an authorised hospital.
4 (2) The Chief Psychiatrist must discharge that responsibility by --
5 (a) publishing under section 545(2) standards for the
6 treatment and care to be provided by mental health
7 services to the persons referred to in subsection (1); and
8 (b) overseeing compliance with those standards.
9 514. Directions by Minister
10 (1) The Minister may, after consultation with the Chief Psychiatrist,
11 issue written directions about the general policy to be followed
12 by the Chief Psychiatrist in performing functions under this Act.
13 (2) The Chief Psychiatrist may request the Minister to issue a
14 direction under subsection (1).
15 (3) A direction cannot be issued under this section in respect of --
16 (a) a particular person referred to in section 513(1); or
17 (b) a particular medical practitioner or mental health
18 practitioner; or
19 (c) a particular mental health service; or
20 (d) any other particular person or body.
21 (4) The Chief Psychiatrist must comply with a direction issued
22 under this section.
23 (5) The power to issue a direction under this section includes the
24 power to amend, replace or revoke the direction and that power
25 is exercisable in the same manner, and is subject to the same
26 conditions, as the power to issue the direction.
27 (6) The Minister must cause the text of a direction issued under this
28 section to be laid before each House of Parliament on or within
29 14 sitting days of the House after the day on which the direction
30 is issued.
page 344
Mental Health Bill 2013
Administration Part 23
Chief Psychiatrist Division 2
s. 515
1 (7) The text of a direction issued under this section must be
2 included in the Chief Psychiatrist's annual report prepared
3 under section 531(1).
4 515. Minister may request report about any matter
5 (1) The Minister may request the Chief Psychiatrist to report to the
6 Minister on a particular matter, or on matters generally, relating
7 to the Chief Psychiatrist's functions.
8 (2) The Chief Psychiatrist must comply with a request made under
9 subsection (1) unless, in the Chief Psychiatrist's opinion, there
10 are reasonable grounds for not doing so.
11 516. CEO of Health Department may request report about
12 treatment and care of patients
13 (1) The CEO of the Health Department may request the Chief
14 Psychiatrist to report to the CEO of the Health Department on a
15 particular matter, or on matters generally, relating to the Chief
16 Psychiatrist's functions in respect of the treatment and care of
17 patients if the matter or matters are within the remit of the CEO
18 of the Health Department.
19 (2) The Chief Psychiatrist must comply with a request made under
20 subsection (1) unless, in the Chief Psychiatrist's opinion, there
21 are reasonable grounds for not doing so.
22 517. Powers generally
23 In addition to the specific powers conferred on the Chief
24 Psychiatrist by this Act or another written law, the Chief
25 Psychiatrist may do anything necessary or convenient for the
26 performance of the functions conferred on the Chief Psychiatrist
27 by this Act or another written law.
page 345
Mental Health Bill 2013
Part 23 Administration
Division 2 Chief Psychiatrist
s. 518
1 Subdivision 3 -- Specific powers relating to treatment and care
2 518. Review of treatment
3 (1) The Chief Psychiatrist may review any decision of a psychiatrist
4 about the provision of treatment to --
5 (a) an involuntary patient; or
6 (b) a patient who is a mentally impaired accused required
7 under the MIA Act to be detained at an authorised
8 hospital.
9 (2) Before reviewing the decision, the Chief Psychiatrist must give
10 the psychiatrist written notice of the review.
11 (3) On the review, the Chief Psychiatrist may decide to --
12 (a) affirm the decision; or
13 (b) vary the decision; or
14 (c) revoke the decision; or
15 (d) substitute another decision.
16 (4) The Chief Psychiatrist --
17 (a) must advise the psychiatrist in writing of the decision
18 under subsection (3) and the reasons for it; and
19 (b) may give to the psychiatrist written directions about
20 implementing the decision.
21 (5) The psychiatrist must comply with any directions given under
22 subsection (4)(b).
23 Penalty: a fine of $10 000.
24 (6) This section does not affect the operation of Part 13 Division 2
25 or 3 in relation to the provision of treatment to --
26 (a) an involuntary patient; or
27 (b) a patient who is a mentally impaired accused required
28 under the MIA Act to be detained at an authorised
29 hospital.
page 346
Mental Health Bill 2013
Administration Part 23
Chief Psychiatrist Division 2
s. 519
1 519. Visits to mental health services
2 (1) The Chief Psychiatrist may visit --
3 (a) an authorised hospital whenever the Chief Psychiatrist
4 considers it appropriate to do so; and
5 (b) a mental health service that is not an authorised hospital
6 whenever the Chief Psychiatrist reasonably suspects that
7 proper standards of treatment and care have not been, or
8 are not being, maintained by the mental health service.
9 (2) The Chief Psychiatrist may visit a mental health service under
10 subsection (1) at any time without notice.
11 (3) While visiting a mental health service under subsection (1), the
12 Chief Psychiatrist may do any of these things --
13 (a) inspect any part of the mental health service;
14 (b) interview any person referred to in section 513(1) who is
15 being provided with treatment or care by the mental
16 health service;
17 (c) require a staff member of the mental health service to do
18 any of these things --
19 (i) answer questions or provide information about
20 the provision of treatment or care by the mental
21 health service to any person referred to in
22 section 513(1);
23 (ii) produce any medical record or other document
24 that is held by the mental health service and
25 relates to the treatment or care that has been or is
26 being provided by the mental health service to
27 any person referred to in section 513(1);
28 (iii) give reasonable assistance to the Chief
29 Psychiatrist in the exercise of a power under this
30 section;
31 (d) inspect, or take a copy of the whole or any part of any
32 medical record or other document produced under
33 paragraph (c)(ii).
page 347
Mental Health Bill 2013
Part 23 Administration
Division 2 Chief Psychiatrist
s. 520
1 520. Offence to interfere with visit to mental health service
2 (1) A person commits an offence if the person --
3 (a) without reasonable excuse, proof of which is on the
4 person, does not answer a question or provide
5 information when required under section 519(3)(c)(i); or
6 (b) in purporting to comply with a requirement under
7 section 519(3)(c)(i), gives an answer or provides
8 information that the person knows is false or misleading
9 in a material particular; or
10 (c) in purporting to comply with a requirement under
11 section 519(3)(c)(ii), makes available a document that
12 the person knows is false or misleading in a material
13 particular --
14 (i) without indicating that the document is false or
15 misleading and, to the extent the person can, how
16 the document is false or misleading; and
17 (ii) if the person has or can reasonably obtain the
18 correct information -- without providing the
19 correct information;
20 or
21 (d) without reasonable excuse, proof of which is on the
22 person, does not give reasonable assistance when
23 required under section 519(3)(c)(iii); or
24 (e) without reasonable excuse, proof of which is on the
25 person, obstructs or hinders --
26 (i) the Chief Psychiatrist in the exercise of a power
27 under section 519; or
28 (ii) a person assisting the Chief Psychiatrist under
29 section 519(3)(c)(iii).
30 Penalty: a fine of $6 000.
31 (2) It is enough for a prosecution notice lodged against a person for
32 an offence under subsection (1)(b) or (c) to state that the
page 348
Mental Health Bill 2013
Administration Part 23
Chief Psychiatrist Division 2
s. 521
1 answer, information or document was false or misleading to the
2 person's knowledge without stating which.
3 521. Directions to mental health services to disclose information
4 (1) In this section --
5 relevant information means information that, in the Chief
6 Psychiatrist's opinion, is or is likely to be relevant to the
7 treatment or care that has been or is being provided to a person,
8 or the persons in a class of person, specified in section 513(1).
9 (2) The Chief Psychiatrist may issue a written direction to the
10 person in charge of a mental health service that holds relevant
11 information requiring the person in charge to disclose the
12 information to the Chief Psychiatrist.
13 (3) The person in charge of a mental health service to whom a
14 direction is issued under subsection (2) must comply with the
15 direction.
16 Penalty for an offence under this subsection: a fine of $5 000.
17 Subdivision 4 -- Notifiable incidents
18 522. Application of this Subdivision
19 This Subdivision applies in relation to --
20 (a) a person referred to in section 513(1); or
21 (b) a person who is, for the purposes of the Hospitals and
22 Health Services Act 1927 Part IIIB, a resident of a
23 private psychiatric hostel.
24 523. Term used: notifiable incident
25 In this Subdivision --
26 notifiable incident, in respect of a person referred to in
27 section 522(a) or (b), means any of these events --
28 (a) the death of the person, wherever it occurs;
page 349
Mental Health Bill 2013
Part 23 Administration
Division 2 Chief Psychiatrist
s. 524
1 (b) an error in any medication prescribed for, or
2 administered or supplied to, the person that has had, or
3 is likely to have, an adverse effect on the person;
4 (c) any other incident in connection with the provision of
5 treatment or care to the person that has had, or is likely
6 to have, an adverse effect on the person;
7 (d) a reportable incident (as defined in section 254(1)) in
8 relation to the person;
9 (e) any other event that the Chief Psychiatrist declares, by
10 notice published in the Gazette, to be a notifiable
11 incident for the purposes of this definition.
12 524. Reporting notifiable incidents
13 (1) This section applies if the person in charge of a mental health
14 service becomes aware of the occurrence of a notifiable incident
15 in respect of a person referred to in section 522(a) or (b) who is
16 being provided with treatment or care by the mental health
17 service.
18 (2) The person in charge must, as soon as practicable, report the
19 occurrence to the Chief Psychiatrist in accordance with
20 subsection (3).
21 Penalty: a fine of $6 000.
22 (3) The report must be in the approved form and must include these
23 things in relation to the notifiable incident --
24 (a) the date and time when the incident occurred;
25 (b) the location where the incident occurred;
26 (c) the name, and status under section 513(1) or 522(b), of
27 the person in relation to whom the incident occurred;
28 (d) the names of any staff members of the mental health
29 service who were involved in the incident;
30 (e) the names of any other people who were involved in the
31 incident;
page 350
Mental Health Bill 2013
Administration Part 23
Chief Psychiatrist Division 2
s. 525
1 (f) the names of any staff members of the mental health
2 service who witnessed the incident;
3 (g) the names of any other people who witnessed the
4 incident;
5 (h) a description of the incident and the circumstances in
6 which it occurred;
7 (i) any other information about the incident that the person
8 in charge considers relevant to include.
9 525. Action that Chief Psychiatrist may take
10 (1) On receipt of a report under section 524 in relation to a
11 notifiable incident, the Chief Psychiatrist may do one of the
12 following --
13 (a) investigate the incident;
14 (b) refer the incident to all or any of the following --
15 (i) the CEO;
16 (ii) the CEO of the Health Department;
17 (iii) a registration board;
18 (c) take no action in relation to the incident.
19 (2) Despite having decided to investigate a notifiable incident under
20 subsection (1)(a), the Chief Psychiatrist may decide at any time
21 during the investigation to instead refer the incident to a person
22 or body under subsection (1)(b).
23 526. Notification of decision to take action
24 The Chief Psychiatrist must advise the person in charge of the
25 mental health service in connection with which a notifiable
26 incident was reported under section 524(2) in writing of any
27 decision that the Chief Psychiatrist makes under section 525 in
28 respect of the incident.
page 351
Mental Health Bill 2013
Part 23 Administration
Division 2 Chief Psychiatrist
s. 527
1 527. Chief Psychiatrist's powers of investigation
2 (1) For the purpose of conducting an investigation under
3 section 525(1)(a), the Chief Psychiatrist may --
4 (a) make any inquiries the Chief Psychiatrist considers
5 appropriate; and
6 (b) exercise any of the powers that the Chief Psychiatrist
7 has under sections 519 and 521.
8 (2) For the purpose of subsection (1)(b), sections 519, 520 and 521
9 apply with the necessary changes.
10 528. Notification of outcome of investigation
11 On completing the investigation of a notifiable incident under
12 section 525(1)(a), the Chief Psychiatrist --
13 (a) must give the person in charge of the mental health
14 service in connection with which the incident was
15 reported under section 524(2) a written report about the
16 outcome of the investigation; and
17 (b) may include in the report recommendations about that
18 outcome.
19 Subdivision 5 -- Staff and facilities
20 529. Chief Psychiatrist's staff
21 Public service officers must be appointed under, or made
22 available under, the Public Sector Management Act 1994 Part 3
23 to assist the Chief Psychiatrist in performing his or her functions
24 under this Act or another written law.
25 530. Use of government staff and facilities
26 (1) The Chief Psychiatrist may, by arrangement, use (either
27 full-time or part-time) the services of any officer or employee
28 employed in the Public Service or a State agency or
29 instrumentality or employed otherwise in the service of the
30 State.
page 352
Mental Health Bill 2013
Administration Part 23
Chief Psychiatrist Division 2
s. 531
1 (2) The Chief Psychiatrist may, by arrangement, use any facilities
2 of a department of the Public Service or a State agency or
3 instrumentality.
4 (3) An arrangement under subsection (1) or (2) must be made on
5 terms agreed to by the parties.
6 Subdivision 6 -- Annual reports
7 531. Annual report: preparation
8 (1) Within 3 months after 30 June in each year, the Chief
9 Psychiatrist must prepare and give to the Minister a report about
10 the performance during the financial year ending on that day of
11 the functions conferred on the Chief Psychiatrist by this Act or
12 another written law.
13 (2) The report must include statistics about these matters --
14 (a) emergency electroconvulsive therapy approved during
15 the year by the Chief Psychiatrist under
16 section 199(2)(c);
17 (b) electroconvulsive therapy performed during the year and
18 reported on under section 201(3);
19 (c) emergency psychiatric treatment provided during the
20 year and reported on under section 204(1)(b);
21 (d) psychosurgery performed during the year and reported
22 on under section 209(1)(a);
23 (e) seclusion imposed during the year and reported on under
24 section 224(2)(a);
25 (f) bodily restraint applied during the year and reported on
26 under section 240(2)(a);
27 (g) urgent non-psychiatric treatment provided during the
28 year and reported on under section 242(3)(a);
29 (h) off-label treatment provided during the year and
30 reported under section 304(3)(b);
page 353
Mental Health Bill 2013
Part 23 Administration
Division 2 Chief Psychiatrist
s. 532
1 (i) notifiable incidents occurring during the year and
2 reported on under section 524(2) and the action taken
3 under section 525 in relation to those incidents.
4 532. Annual report: tabling
5 (1) The Minister must cause a copy of a report referred to in
6 section 531(1) to be laid before each House of Parliament, or
7 dealt with under subsection (2), on or within 21 days after the
8 day on which the Minister receives the report.
9 (2) The Minister must transmit a copy of the report to the Clerk of a
10 House of Parliament if --
11 (a) at the beginning of the 21-day period referred to in
12 subsection (1), the House is not sitting; and
13 (b) in the Minister's opinion, the House will not sit during
14 that period.
15 (3) A copy of a report transmitted under subsection (2) to the Clerk
16 of a House is taken to have been laid before that House.
17 (4) The laying of a copy of a report that is taken to have occurred
18 under subsection (3) must be recorded in the Minutes, or Votes
19 and Proceedings, of the House on the first sitting day of the
20 House after the receipt of the copy by the Clerk.
21 Subdivision 7 -- Miscellaneous matters
22 533. Request for information about patient or person detained
23 (1) A person may request the Chief Psychiatrist to advise the person
24 whether or not a particular individual --
25 (a) is admitted by a mental health service as an inpatient; or
26 (b) is detained at a mental health service.
27 (2) If, in the Chief Psychiatrist's opinion, the person making the
28 request has a sufficient interest in the matter, the Chief
29 Psychiatrist may provide the person with the following
page 354
Mental Health Bill 2013
Administration Part 23
Chief Psychiatrist Division 2
s. 534
1 information (as applicable) in relation to that admission or
2 detention --
3 (a) the date of the admission or detention;
4 (b) the date of the individual's discharge or release from the
5 admission or detention;
6 (c) if the individual died while so admitted or detained --
7 the date of death.
8 534. Request for list of mentally impaired accused
9 (1) The Chief Psychiatrist may request the Mentally Impaired
10 Accused Review Board in writing to give to the Chief
11 Psychiatrist a list of all mentally impaired accused required
12 under the MIA Act to be detained at an authorised hospital.
13 (2) The Mentally Impaired Accused Review Board must comply
14 with any request made under subsection (1).
15 535. Delegation by Chief Psychiatrist
16 (1) The Chief Psychiatrist may delegate to another psychiatrist any
17 power or duty of the Chief Psychiatrist under another provision
18 of this Act or under another written law.
19 (2) The delegation must be in writing signed by the Chief
20 Psychiatrist.
21 (3) A person to whom a power or duty is delegated under this
22 section cannot delegate that power or duty.
23 (4) A person exercising or performing a power or duty that has been
24 delegated to the person under this section is taken to do so in
25 accordance with the terms of the delegation unless the contrary
26 is shown.
27 (5) This section does not limit the ability of the Chief Psychiatrist to
28 perform a function through an officer or agent.
page 355
Mental Health Bill 2013
Part 23 Administration
Division 3 Mental health practitioners and authorised mental health
practitioners
s. 536
1 Division 3 -- Mental health practitioners and authorised
2 mental health practitioners
3 536. Mental health practitioners
4 A mental health practitioner is a person who, as one of the
5 following, has at least 3 years' experience in the management of
6 people who have a mental illness --
7 (a) a psychologist;
8 (b) a nurse whose name is entered on Division 1 of the
9 Register of Nurses kept under the Health Practitioner
10 Regulation National Law (Western Australia) as a
11 registered nurse;
12 (c) an occupational therapist;
13 (d) a social worker.
14 537. Authorised mental health practitioners
15 (1) The Chief Psychiatrist may, by order published in the Gazette,
16 designate a mental health practitioner as an authorised mental
17 health practitioner if satisfied that the practitioner has the
18 qualifications, training and experience appropriate for
19 performing the functions of an authorised mental health
20 practitioner under this Act.
21 (2) The order may specify any limits within which, or any
22 conditions subject to which, those functions can be performed
23 by the authorised mental health practitioner designated as such
24 by the order.
25 (3) The Chief Psychiatrist may, by order published in the Gazette,
26 amend or revoke an order published under subsection (1).
27 (4) The regulations may provide for matters relating to authorised
28 mental health practitioners, including the following --
29 (a) the qualifications, training and experience to which the
30 Chief Psychiatrist must have regard when deciding
page 356
Mental Health Bill 2013
Administration Part 23
Mental health practitioners and authorised mental health Division 3
practitioners
s. 538
1 whether to make, amend or revoke an order under this
2 section;
3 (b) the performance by authorised mental health
4 practitioners of their functions under this Act;
5 (c) any matter about which an authorised mental health
6 practitioner must notify the Chief Psychiatrist;
7 (d) the grounds on which the designation of an authorised
8 mental health practitioner must or may be revoked.
9 (5) For subsection (4)(a), training includes training approved by the
10 Chief Psychiatrist.
11 538. Register of authorised mental health practitioners
12 (1) The Chief Psychiatrist must keep a register of persons who are,
13 or have been, designated under section 537 as authorised mental
14 health practitioners.
15 (2) The register must be kept in the manner and form determined by
16 the Chief Psychiatrist.
17 (3) The register must include the following particulars of each
18 person registered under subsection (1) --
19 (a) the person's name;
20 (b) the date on which the order designating the person as an
21 authorised mental health practitioner was published in
22 the Gazette;
23 (c) any limits within which, or any conditions subject to
24 which, the person can perform the functions of an
25 authorised mental health practitioner that were specified
26 in the order referred to in paragraph (b);
27 (d) the date on which any order amending the order referred
28 to in paragraph (b) was published in the Gazette and
29 details of the amendments;
30 (e) the date on which any order revoking the order referred
31 to in paragraph (b) was published in the Gazette.
page 357
Mental Health Bill 2013
Part 23 Administration
Division 4 Authorised hospitals
s. 539
1 (4) The Chief Psychiatrist must ensure that the register is available
2 free of charge for inspection by members of the public --
3 (a) from the office of the Chief Psychiatrist during the
4 business hours of that office; and
5 (b) on the Agency's website.
6 Division 4 -- Authorised hospitals
7 539. Authorised hospital: meaning
8 An authorised hospital is --
9 (a) a public hospital, or part of a public hospital, in respect
10 of which an order is in force under section 540; or
11 (b) a private hospital the licence of which is endorsed under
12 the Hospitals and Health Services Act 1927
13 section 26DA(2).
14 Note for section 539:
15 The licence of a private hospital cannot be endorsed unless the Chief
16 Psychiatrist recommends the endorsement (see the Hospitals and Health
17 Services Act 1927 section 26DA(3A)).
18 540. Authorisation of public hospitals
19 (1) The Governor may, by order published in the Gazette, authorise
20 a public hospital, or a part of a public hospital, for --
21 (a) the reception of persons under this Act; and
22 (b) the admission of involuntary patients.
23 (2) The Governor may, by order published in the Gazette, amend or
24 revoke an order made under subsection (1).
25 (3) The Governor cannot make, amend or revoke an order under
26 this section unless the Chief Psychiatrist recommends that the
27 order be made, amended or revoked.
page 358
Mental Health Bill 2013
Administration Part 23
Mental health services approved for electroconvulsive therapy Division 5
s. 541
1 541. Patients to be transferred if hospital no longer authorised
2 (1) This section applies if --
3 (a) an authorisation of a public hospital or a part of a public
4 hospital is revoked under section 540(2); or
5 (b) the endorsement on the licence of a private hospital is
6 cancelled under the Hospitals and Health Services
7 Act 1927 section 26FA(1).
8 (2) Every person received into, and every involuntary patient
9 admitted by, the hospital or that part of the hospital must be
10 transferred in accordance with the regulations to an authorised
11 hospital or other place.
12 Note for section 541:
13 The endorsement on the licence of a private hospital cannot be cancelled
14 unless the Chief Psychiatrist is consulted (see the Hospitals and Health
15 Services Act 1927 section 26FA(2A)).
16 Division 5 -- Mental health services approved for
17 electroconvulsive therapy
18 542. Chief Psychiatrist to approve mental health services
19 (1) The Chief Psychiatrist may, by order published in the Gazette,
20 approve a mental health service as a mental health service at
21 which electroconvulsive therapy can be performed.
22 (2) The order may specify any conditions subject to which
23 electroconvulsive therapy can be performed at the mental health
24 service specified in the order.
25 (3) The Chief Psychiatrist may, by order published in the Gazette,
26 amend or revoke an order published under subsection (1).
page 359
Mental Health Bill 2013
Part 23 Administration
Division 6 Approved forms
s. 543
1 Division 6 -- Approved forms
2 543. Chief Psychiatrist to approve forms
3 (1) The Chief Psychiatrist may approve forms for use under this
4 Act other than forms for use by police officers under Part 11
5 Division 2.
6 (2) An approved form may be or include a statutory declaration.
7 Note for section 543:
8 The Commissioner of Police approves forms for use by police officers under
9 Part 11 Division 2 (see section 169).
10 544. Publication of approved forms and related guidelines
11 (1) The Chief Psychiatrist --
12 (a) must publish all approved forms; and
13 (b) may publish guidelines about how to complete any of
14 the approved forms.
15 (2) It is sufficient for compliance with subsection (1) if copies of
16 the forms and guidelines are published on a website maintained
17 by the Agency.
18 Division 7 -- Guidelines and standards
19 545. Publication of guidelines and standards
20 (1) The Chief Psychiatrist must publish guidelines for each of these
21 purposes --
22 (a) making decisions about whether or not a person is in
23 need of an inpatient treatment order or a community
24 treatment order;
25 (b) making decisions under section 26(3)(a) about whether
26 or not a place that is not an authorised hospital is an
27 appropriate place to conduct an examination;
page 360
Mental Health Bill 2013
Administration Part 23
Guidelines and standards Division 7
s. 546
1 (c) ensuring as far as practicable the independence of
2 psychiatrists from whom further opinions referred to in
3 section 121(5) or 182(2) are obtained;
4 (d) making decisions under section 183(2) about whether or
5 not to comply with requests made under section 182 for
6 additional opinions;
7 (e) the preparation, review and revision of treatment,
8 support and discharge plans;
9 (f) the performance of electroconvulsive therapy;
10 (g) compliance with approved forms;
11 (h) ensuring compliance with this Act by mental health
12 services.
13 (2) The Chief Psychiatrist must publish standards for the treatment
14 and care to be provided by mental health services to the persons
15 specified in section 513(1).
16 (3) The Chief Psychiatrist may publish guidelines for such other
17 purposes relating to the treatment and care of persons who have
18 a mental illness as the Chief Psychiatrist considers appropriate.
19 546. Application, adoption or incorporation of other documents
20 Guidelines or standards published under section 545 may apply,
21 adopt or incorporate (with or without changes) the whole or any
22 part of a document that is in force or existing at a particular time
23 or from time to time.
24 547. Publication on Agency's website
25 It is sufficient for compliance with section 545 if a copy of the
26 guidelines or standards is published on a website maintained by
27 the Agency.
page 361
Mental Health Bill 2013
Part 23 Administration
Division 8 Miscellaneous matters
s. 548
1 Division 8 -- Miscellaneous matters
2 548. Delegation by Minister or CEO
3 (1) The Minister may delegate to the CEO any power or duty of the
4 Minister under another provision of this Act.
5 (2) The CEO may delegate to a public service officer who is
6 employed in, or seconded to, the Agency any power or duty of
7 the CEO under another provision of this Act.
8 (3) A delegation under this section must be in writing signed by the
9 Minister or the CEO, as the case requires.
10 (4) A person to whom a power or duty is delegated under this
11 section cannot delegate that power or duty.
12 (5) A person exercising or performing a power or duty that has been
13 delegated to the person under this section is taken to do so in
14 accordance with the terms of the delegation unless the contrary
15 is shown.
16 (6) This section does not limit the ability of the Minister or the
17 CEO to perform a function through an officer or agent.
page 362
Mental Health Bill 2013
Interstate arrangements Part 24
Preliminary matters Division 1
s. 549
1 Part 24 -- Interstate arrangements
2 Division 1 -- Preliminary matters
3 549. Terms used
4 (1) In this Part --
5 corresponding law means a law of another State or a Territory
6 that is declared by the regulations to be a corresponding law for
7 the purposes of this Part;
8 intergovernmental agreement means --
9 (a) an agreement entered into under section 550(1); or
10 (b) an agreement in respect of which a declaration under
11 section 550(2) is in force;
12 interstate community patient means a person who is under an
13 interstate community treatment order;
14 interstate community treatment order means an order made
15 under a corresponding law under which a person can be
16 provided with treatment in the community;
17 interstate inpatient means a person who is under an interstate
18 inpatient treatment order;
19 interstate inpatient treatment order means an order made under
20 a corresponding law under which a person can be admitted by a
21 hospital, and detained there, to enable the person to be provided
22 with treatment;
23 interstate mental health service means --
24 (a) a hospital or other place in another State or a Territory
25 where a person can be detained, and provided with
26 treatment, under an interstate inpatient treatment order;
27 or
28 (b) a place in another State or a Territory where a person
29 can be provided with treatment under an interstate
30 community treatment order;
page 363
Mental Health Bill 2013
Part 24 Interstate arrangements
Division 2 Intergovernmental agreements
s. 550
1 State inpatient means a person who is under an inpatient
2 treatment order.
3 (2) For section 553(1), a State inpatient is absent without leave
4 from a hospital if the inpatient is absent without leave from the
5 hospital as described in section 97(2).
6 (3) For section 555(1), an interstate inpatient is absent without
7 leave from an interstate mental health service if the inpatient
8 leaves the interstate mental health service without lawful
9 authority.
10 Division 2 -- Intergovernmental agreements
11 550. Agreements with other States and Territories
12 (1) The Minister may enter into an agreement with a Minister
13 responsible for administering a corresponding law about any
14 matter in connection with the administration of this Part or the
15 corresponding law.
16 (2) The Minister may, by notice published in the Gazette, declare
17 that an agreement entered into before the commencement of this
18 Part has effect for the purposes of this Part.
19 (3) The Minister may, by notice published in the Gazette, revoke a
20 declaration made under subsection (2).
21 551. Agreement must be in place
22 A person cannot perform a function under this Part in
23 connection with an interstate mental health service in, or an
24 interstate inpatient or interstate community patient in or from,
25 another State or a Territory unless there is an intergovernmental
26 agreement in relation to that State or Territory.
27 552. Performance of functions under corresponding laws or
28 intergovernmental agreements
29 A person who is authorised to perform a function under this Act
30 may perform in the State or another State or a Territory any
page 364
Mental Health Bill 2013
Interstate arrangements Part 24
Transfer to or from interstate mental health service Division 3
s. 553
1 similar function conferred on the person under a corresponding
2 law of, or an intergovernmental agreement in relation to, that
3 State or Territory.
4 Division 3 -- Transfer to or from interstate mental
5 health service
6 553. Transfer from hospital to interstate mental health service
7 (1) The person in charge of a hospital may, with the written
8 approval of the Chief Psychiatrist, make an order (a transfer
9 order) authorising the transfer of a State inpatient who is
10 detained at, or who is absent without leave as described in
11 section 549(2) from, the hospital to the interstate mental health
12 service specified in the order.
13 (2) The transfer order must be in the approved form and must
14 include the following --
15 (a) the State inpatient's name;
16 (b) the hospital from which the State inpatient is to be
17 transferred;
18 (c) the interstate mental health service to which the State
19 inpatient is to be transferred;
20 (d) the date and time when the order is made;
21 (e) the reasons for the transfer;
22 (f) the name, qualifications and signature of the person in
23 charge of the hospital.
24 (3) The person in charge of the hospital must, as soon as
25 practicable --
26 (a) file the approval and the transfer order and give a copy
27 of each to the State inpatient; and
28 (b) transmit a copy of each to the person in charge of the
29 interstate mental health service.
30 (4) The making of a transfer order under subsection (1) is an event
31 to which Part 9 applies and the person in charge of the hospital
page 365
Mental Health Bill 2013
Part 24 Interstate arrangements
Division 3 Transfer to or from interstate mental health service
s. 554
1 is the person responsible under that Part for notification of that
2 event.
3 554. Making transport order
4 (1) The person in charge of the hospital may make a transport order
5 in respect of the State inpatient.
6 (2) The person in charge of the hospital cannot make the transport
7 order unless satisfied that no other safe means of taking the
8 State inpatient to the interstate mental health service is
9 reasonably available.
10 (3) Part 10 applies in relation to the transport order as if --
11 (a) the transport order were made under section 92(1); and
12 (b) a reference in section 92(2) to an authorised hospital
13 were a reference to the interstate mental health service;
14 and
15 (c) a reference in Part 10 to a police officer included a
16 reference to a police officer of the State or Territory in
17 which the interstate mental health service is located; and
18 (d) a reference in Part 10 to a transport officer included a
19 reference to a person who is authorised under a
20 corresponding law of, or an intergovernmental
21 agreement in relation to, that State or Territory to
22 perform functions similar to those of a transport officer.
23 555. Transfer from interstate mental health service to hospital
24 (1) The person in charge of a hospital may, with the written consent
25 of the Chief Psychiatrist, make an order (a transfer approval
26 order) approving the transfer of an interstate inpatient who is
27 detained at, or who is absent without leave as described in
28 section 549(3) from, an interstate mental health service to the
29 hospital.
page 366
Mental Health Bill 2013
Interstate arrangements Part 24
Transfer to or from interstate mental health service Division 3
s. 556
1 (2) The transfer approval order must be in the approved form and
2 must include the following --
3 (a) the interstate patient's name;
4 (b) the interstate mental health service from which the
5 interstate inpatient is to be transferred;
6 (c) the hospital to which the interstate inpatient is to be
7 transferred;
8 (d) the date and time when the order is made;
9 (e) the reasons for the approval;
10 (f) the name, qualifications and signature of the person in
11 charge of the hospital.
12 (3) The person in charge of the hospital must, as soon as
13 practicable, transmit a copy of each of the consent and the
14 transfer approval order to the person in charge of the interstate
15 mental health service.
16 (4) On the interstate inpatient's admission by the hospital as an
17 inpatient, the interstate inpatient treatment order is taken to be
18 an inpatient treatment order made under this Act.
19 (5) The person in charge of the hospital must, as soon as practicable
20 after the interstate inpatient is admitted as an inpatient, file the
21 consent and the transfer approval order and give a copy of each
22 to the interstate inpatient.
23 (6) The making of a transfer approval order under subsection (1) is
24 an event to which Part 9 applies and the person in charge of the
25 hospital is the person responsible under that Part for notification
26 of that event.
27 556. Transport of interstate inpatient to hospital
28 (1) This section applies in relation to an interstate inpatient under a
29 transfer approval order made under section 555(1).
30 (2) A person who is authorised under a corresponding law or an
31 interstate agreement to transport the interstate inpatient from an
page 367
Mental Health Bill 2013
Part 24 Interstate arrangements
Division 4 Community treatment orders
s. 557
1 interstate mental health service to a hospital may exercise in the
2 State any of the powers the person has under the corresponding
3 law or interstate agreement for that purpose.
4 Division 4 -- Community treatment orders
5 557. Treatment interstate under State order
6 The terms of a community treatment order may include a
7 requirement that the involuntary community patient attend an
8 interstate mental health service to be provided with treatment.
9 558. Making transport order
10 (1) A medical practitioner or mental health practitioner may make a
11 transport order in respect of an involuntary community patient
12 who fails to comply with the requirement referred to in
13 section 557.
14 (2) The practitioner cannot make the transport order unless satisfied
15 that no other safe means of ensuring the involuntary community
16 patient attends the interstate mental health service is reasonably
17 available.
18 (3) Part 10 applies in relation to the transport order as if --
19 (a) the transport order were made under section 129(2); and
20 (b) a reference in section 129(3) to a place were a reference
21 to an interstate mental health service; and
22 (c) a reference in Part 10 to a police officer included a
23 reference to a police officer of the State or Territory in
24 which the interstate mental health service is located; and
25 (d) a reference in Part 10 to a transport officer included a
26 reference to a person who is authorised under a
27 corresponding law of, or an intergovernmental
28 agreement in relation to, that State or Territory to
29 perform functions similar to those of a transport officer.
page 368
Mental Health Bill 2013
Interstate arrangements Part 24
Community treatment orders Division 4
s. 559
1 559. Treatment in State under interstate order
2 An interstate community treatment order that includes a
3 requirement that the interstate community patient be provided
4 with treatment by a mental health service in the State is taken to
5 be a community treatment order that, despite any other
6 provision of this Act, has the same terms as and is in force for
7 the same period as the interstate community treatment order.
8 560. Supervision in State under interstate order
9 A person who is authorised under a corresponding law of
10 another State or a Territory to perform a function in relation to
11 an interstate community treatment order made under the
12 corresponding law may perform that function in relation to the
13 order in the State.
page 369
Mental Health Bill 2013
Part 25 Ministerial inquiries
s. 561
1 Part 25 -- Ministerial inquiries
2 561. Appointment of person to conduct inquiry
3 The Minister may appoint a person to inquire into, and report to
4 the Minister on, any matter relating to --
5 (a) the treatment, care or other services provided (whether
6 under this Act or otherwise) to a person, or the persons
7 in a class of person, who has or may have a mental
8 illness; or
9 (b) the administration or enforcement of this Act.
10 562. Powers of investigation
11 The person appointed under section 561 to conduct an inquiry
12 may, for the purpose of the inquiry --
13 (a) enter --
14 (i) a mental health service at any time without
15 notice; or
16 (ii) any other premises at any reasonable time and at
17 any other time with the owner's consent;
18 and
19 (b) on entering any premises under paragraph (a), do any of
20 these things --
21 (i) inspect the premises and anything on the
22 premises;
23 (ii) require a person on the premises to answer
24 questions, or provide information, that the person
25 appointed under section 561 considers relevant to
26 the inquiry;
27 (iii) require a person on the premises to produce any
28 documents that the person appointed under
29 section 561 considers relevant to the inquiry;
30 (iv) inspect, or take a copy of the whole or any part
31 of any document produced under
32 subparagraph (iii);
page 370
Mental Health Bill 2013
Ministerial inquiries Part 25
s. 563
1 (v) require a person on the premises to give
2 reasonable assistance to the person appointed
3 under section 561 in the exercise of a power
4 under this section.
5 563. Interfering with investigation
6 (1) A person commits an offence if the person --
7 (a) without reasonable excuse, proof of which is on the
8 person, does not answer a question or provide
9 information when required under section 562(b)(ii); or
10 (b) in purporting to comply with a requirement under
11 section 562(b)(ii), gives an answer or provides
12 information that the person knows is false or misleading
13 in a material particular; or
14 (c) in purporting to comply with a requirement under
15 section 562(b)(iii), makes available a document that the
16 person knows is false or misleading in a material
17 particular --
18 (i) without indicating that the document is false or
19 misleading and, to the extent the person can, how
20 the document is false or misleading; and
21 (ii) if the person has or can reasonably obtain the
22 correct information -- without providing the
23 correct information;
24 or
25 (d) without reasonable excuse, proof of which is on the
26 person, does not give reasonable assistance when
27 required under section 562(b)(v); or
28 (e) without reasonable excuse, proof of which is on the
29 person, obstructs or hinders --
30 (i) a person appointed under section 561 in the
31 exercise of a power under section 562; or
page 371
Mental Health Bill 2013
Part 25 Ministerial inquiries
s. 564
1 (ii) a person assisting such a person under
2 section 562(b)(v).
3 Penalty: a fine of $6 000.
4 (2) It is enough for a prosecution notice lodged against a person for
5 an offence under subsection (1)(b) or (c) to state that the
6 answer, information or document was false or misleading to the
7 person's knowledge without stating which.
8 564. Conduct of inquiry generally
9 (1) An inquiry must be conducted with as little formality and
10 technicality, and with as much expedition, as a proper
11 consideration of the subject matter of the inquiry permits.
12 (2) In conducting an inquiry, the person appointed under
13 section 561 to conduct the inquiry is bound by the rules of
14 natural justice.
15 (3) Subject to this Part, the practice and procedure for conducting
16 an inquiry is as determined by the person appointed under
17 section 561 to conduct the inquiry.
18 565. Evidence generally
19 (1) A person appointed under section 561 to conduct an inquiry is
20 not bound by the rules of evidence but may inform himself or
21 herself of a matter relevant to the inquiry in any manner the
22 person considers appropriate.
23 (2) Evidence in an inquiry may be given orally or in writing.
24 (3) The person appointed under section 561 to conduct an inquiry
25 may require evidence in the inquiry to be given on oath or by
26 affidavit.
27 (4) The person appointed under section 561 to conduct an inquiry
28 may direct a person appearing as a witness in the inquiry --
29 (a) to answer a question relevant to the inquiry; or
30 (b) to produce a document relevant to the inquiry.
page 372
Mental Health Bill 2013
Ministerial inquiries Part 25
s. 566
1 (5) A person appearing as a witness in an inquiry has the same
2 protection and immunity as a witness has in a proceeding in the
3 Supreme Court.
4 566. Summons to give evidence or produce documents
5 The person appointed under section 561 to conduct an inquiry
6 may, by issuing a signed summons and having the summons
7 served on the person to whom it is addressed, require the person
8 to attend at the time and place specified in the summons --
9 (a) to give evidence in the inquiry; or
10 (b) to produce a document relevant to the inquiry that is in
11 the person's custody or control and is specified in the
12 summons; or
13 (c) to do both of those things.
14 567. Self-incrimination
15 (1) A person is not excused from complying with a direction given
16 to the person under section 565(4), or a summons served on the
17 person under section 566, on the ground that the answer to a
18 question or the production of a document might tend to
19 incriminate the person or expose the person to a criminal
20 penalty.
21 (2) However, any answer given or document produced by a person
22 in compliance with a direction given to the person under
23 section 565(4), or a summons served on the person under
24 section 566, is not admissible in evidence in any criminal
25 proceedings against the person other than proceedings for an
26 offence under section 569(1)(d) or (e).
27 568. Powers in relation to documents produced
28 In relation to a document produced in an inquiry, the person
29 appointed under section 561 to conduct the inquiry may do any
30 of these things --
31 (a) inspect the document;
page 373
Mental Health Bill 2013
Part 25 Ministerial inquiries
s. 569
1 (b) retain the document for a reasonable period;
2 (c) take a copy of the whole or any part of the document.
3 569. Offences relating to evidence and documents
4 (1) A person commits an offence if the person --
5 (a) without reasonable excuse, proof of which is on the
6 person, does not swear an oath or make an affirmation
7 when required under section 565(3); or
8 (b) without reasonable excuse, proof of which is on the
9 person, does not answer a question or produce a
10 document when directed to do so under section 565(4);
11 or
12 (c) without reasonable excuse, proof of which is on the
13 person, does not attend as required by a summons served
14 on the person under section 566; or
15 (d) gives an answer in an inquiry that the person knows is
16 false or misleading in a material particular; or
17 (e) produces a document or provides any other information
18 in an inquiry that the person knows is false or
19 misleading in a material particular --
20 (i) without indicating that the document or other
21 information is false or misleading and, to the
22 extent the person can, how the document or other
23 information is false or misleading; and
24 (ii) if the person has or can reasonably obtain the
25 correct information -- without providing the
26 correct information.
27 Penalty: a fine of $5 000.
28 (2) It is enough for a prosecution notice lodged against a person for
29 an offence under subsection (1)(d) or (e) to state that the
30 answer, document or information was false or misleading to the
31 person's knowledge without stating which.
page 374
Mental Health Bill 2013
Information Part 26
Voluntary disclosure of information by public authorities and Division 1
mental health services
s. 570
1 Part 26 -- Information
2 Division 1 -- Voluntary disclosure of information by public
3 authorities and mental health services
4 570. Powers of Agency's CEO
5 (1) In this section --
6 corresponding overseas authority means a person in another
7 country who has functions corresponding to the CEO's
8 functions under this Act;
9 interstate authority means --
10 (a) a department of the Public Service of the
11 Commonwealth, another State or a Territory; or
12 (b) an agency or instrumentality of the Commonwealth,
13 another State or a Territory; or
14 (c) a body (whether corporate or unincorporate), or the
15 holder of an office, post or position, established or
16 continued in existence for a public purpose under a law
17 of the Commonwealth, another State or a Territory;
18 mental health service --
19 (a) includes --
20 (i) a private psychiatric hostel; and
21 (ii) an individual, a group of individuals or a body
22 (whether corporate or unincorporate) that
23 provides a service specifically for people who
24 have or may have a mental illness, or the carers
25 of people who have or may have a mental illness,
26 wholly or partly from funds paid to the
27 individual, group or body by the Agency;
28 but
29 (b) does not include the carer of a person who has or may
30 have a mental illness;
page 375
Mental Health Bill 2013
Part 26 Information
Division 1 Voluntary disclosure of information by public authorities and
mental health services
s. 570
1 relevant information means information (including personal
2 information) that, in the CEO's opinion, is or is likely to be
3 relevant to any of the following --
4 (a) the treatment or care of a person, or the persons in a
5 class of person, who has or may have a mental illness;
6 (b) the health, safety or wellbeing of a person who has or
7 may have a mental illness;
8 (c) the safety of another person with respect to which there
9 is a serious risk because of a person who has or may
10 have a mental illness;
11 (d) the administration or enforcement of this Act;
12 (e) the implementation and evaluation of programmes
13 managed by the Agency for the purpose of coordinating
14 the care and support of people who have a mental
15 illness;
16 (f) the planning for, and evaluation of, mental health
17 services;
18 (g) epidemiological analysis of mental illness and mental
19 health research;
20 State authority means any of these persons or bodies --
21 (a) the Minister;
22 (b) a department of the Public Service;
23 (c) a State agency or instrumentality;
24 (d) a local government or regional local government;
25 (e) a body (whether corporate or unincorporate), or the
26 holder of an office, post or position, established or
27 continued for a public purpose under a written law.
28 (2) The CEO may disclose relevant information to any of these
29 persons or bodies --
30 (a) a State authority;
31 (b) an interstate authority;
32 (c) a corresponding overseas authority;
page 376
Mental Health Bill 2013
Information Part 26
Voluntary disclosure of information by public authorities and Division 1
mental health services
s. 571
1 (d) a mental health service.
2 (3) The CEO may request any of these persons or bodies to disclose
3 relevant information to the CEO --
4 (a) a State authority;
5 (b) an interstate authority;
6 (c) a corresponding overseas authority;
7 (d) a mental health service.
8 571. Powers of CEOs of prescribed State authorities
9 (1) In this section --
10 CEO, of a prescribed State authority, means --
11 (a) if the prescribed State authority is a body referred to in
12 paragraph (a) of the definition of prescribed State
13 authority -- the chief executive officer (however
14 described) of that body; or
15 (b) if the prescribed State authority is a person referred to in
16 paragraph (b) of the definition of prescribed State
17 authority -- that person;
18 prescribed State authority means --
19 (a) a body (whether corporate or unincorporate) established
20 or continued for a public purpose under a written law
21 and prescribed by the regulations for this paragraph; or
22 (b) a person lawfully holding, acting in or performing the
23 functions of an office, post or position established or
24 continued for a public purpose under a written law and
25 prescribed by the regulations for this paragraph;
26 relevant information means information (including personal
27 information) that, in the opinion of the disclosing CEO under
28 subsection (2) or the requesting CEO under subsection (3), is or
29 is likely to be relevant to --
30 (a) the treatment or care of a person, or the persons in a
31 class of person, who has or may have a mental illness; or
page 377
Mental Health Bill 2013
Part 26 Information
Division 1 Voluntary disclosure of information by public authorities and
mental health services
s. 572
1 (b) the health, safety or wellbeing of a person who has or
2 may have a mental illness; or
3 (c) the safety of another person with respect to which there
4 is a risk because of a person who has or may have a
5 mental illness; or
6 (d) the performance of a function under this Act by the
7 CEO's prescribed State authority.
8 (2) The CEO of a prescribed State authority (the disclosing CEO)
9 may disclose relevant information to the CEO of another
10 prescribed State authority.
11 (3) The CEO of a prescribed State authority (the requesting CEO)
12 may request the CEO of another prescribed State authority to
13 disclose relevant information to the requesting CEO.
14 572. Powers of CEOs of mental health services
15 (1) In this section --
16 CEO, of a mental health service, means the person in charge of
17 the mental health service;
18 mental health service --
19 (a) includes --
20 (i) a private psychiatric hostel; and
21 (ii) an individual, a group of individuals or a body
22 (whether corporate or unincorporate) that
23 provides a service specifically for people who
24 have or may have a mental illness;
25 but
26 (b) does not include the carer of a person who has or may
27 have a mental illness;
page 378
Mental Health Bill 2013
Information Part 26
Voluntary disclosure of information by public authorities and Division 1
mental health services
s. 573
1 relevant information means information (including personal
2 information) that, in the opinion of the disclosing CEO under
3 subsection (2) or the requesting CEO under subsection (3), is or
4 is likely to be relevant to any of the following --
5 (a) the treatment or care of a person who has been, is being,
6 or will or may be, provided with treatment or care by the
7 CEO's mental health service;
8 (b) the health, safety or wellbeing of a person who has been,
9 is being, or will or may be, provided with treatment or
10 care by the CEO's mental health service;
11 (c) the safety of another person with respect to which there
12 is a serious risk because of a person who has been, is
13 being, or will or may be, provided with treatment or care
14 by the CEO's mental health service.
15 (2) The CEO of a mental health service (the disclosing CEO) may
16 disclose relevant information to the CEO of another mental
17 health service.
18 (3) The CEO of a mental health service (the requesting CEO) may
19 request the CEO of another mental health service to disclose
20 relevant information to the requesting CEO.
21 573. Delegation by CEO of prescribed State authority
22 (1) This section applies to the CEO of a prescribed State authority
23 (as defined in section 571(1)) if the CEO does not have the
24 power under another provision of this Act to delegate any power
25 or duty of the CEO under section 571.
26 (2) The CEO of a prescribed State authority may delegate to a
27 member of the prescribed State authority's staff any power or
28 duty of the CEO under section 571.
29 (3) The delegation must be in writing signed by the CEO of the
30 prescribed State authority.
31 (4) A person to whom a power or duty is delegated under this
32 section cannot delegate that power or duty.
page 379
Mental Health Bill 2013
Part 26 Information
Division 2 Miscellaneous matters
s. 574
1 (5) A person exercising or performing a power or duty that has been
2 delegated to the person under this section is taken to do so in
3 accordance with the terms of the delegation unless the contrary
4 is shown.
5 (6) This section does not limit the ability of the CEO of a
6 prescribed State authority to perform a function through an
7 officer or agent.
8 Division 2 -- Miscellaneous matters
9 574. Confidentiality
10 (1) In this section --
11 relevant written law means any of these written laws --
12 (a) this Act;
13 (b) the Mental Health Act 1996;
14 (c) the Mental Health Act 1962.
15 (2) A person must not (whether directly or indirectly) record,
16 disclose or use any information obtained by the person because
17 of --
18 (a) the person's office, position, employment or
19 engagement under or for the purposes of a relevant
20 written law; or
21 (b) any disclosure made to the person under this Act,
22 including in response to a request made under
23 section 446(1), 570(3), 571(3) or 572(3).
24 Penalty: a fine of $5 000.
25 (3) Subsection (2) does not apply in relation to the recording,
26 disclosure or use of statistical or other information that is not
27 personal information.
28 (4) A person does not commit an offence under subsection (2) if the
29 recording, disclosure or use of the information is authorised
30 under section 575(1).
page 380
Mental Health Bill 2013
Information Part 26
Miscellaneous matters Division 2
s. 575
1 575. Authorised recording, disclosure or use of information
2 (1) For the purposes of this Act, the recording, disclosure or use of
3 information is authorised if the information is recorded,
4 disclosed or used in good faith in any of these circumstances --
5 (a) in the course of duty, whether under this Act or
6 otherwise;
7 (b) under this Act, including in response to a request made
8 under section 446(1), 570(3), 571(3) or 572(3);
9 (c) under another law;
10 (d) to a court or other person or body acting judicially in the
11 course of proceedings before the court or other person or
12 body;
13 (e) under an order of a court or other person or body acting
14 judicially;
15 (f) for the purposes of the investigation of a suspected
16 offence or disciplinary matter or the conduct of
17 proceedings against a person for an offence or
18 disciplinary matter;
19 (g) if the information recorded, disclosed or used is personal
20 information -- with the consent of the individual, or
21 each individual, to whom the personal information
22 relates;
23 (h) any other circumstances prescribed by the regulations
24 for this subsection.
25 (2) Subsection (1)(d) and (e) apply subject to sections 330(7)
26 and (8), 331(6) and (7), 332(7), 461(2) and 567(2).
27 (3) If the recording, disclosure or use of information is authorised
28 under subsection (1) --
29 (a) no civil or criminal liability is incurred in respect of the
30 recording, disclosure or use; and
page 381
Mental Health Bill 2013
Part 26 Information
Division 2 Miscellaneous matters
s. 576
1 (b) the recording, disclosure or use is not to be regarded
2 as --
3 (i) a breach of any duty of confidentiality or secrecy
4 imposed by law; or
5 (ii) a breach of professional ethics or standards or
6 any principles of conduct applicable to a
7 person's employment; or
8 (iii) unprofessional conduct.
9 576. Receipt and storage of, and access to, information disclosed
10 (1) This section applies in relation to information disclosed in any
11 of these circumstances --
12 (a) in compliance with a direction issued by the Chief
13 Psychiatrist under section 521(2);
14 (b) by the CEO under section 570(2) or in response to a
15 request made by the CEO under section 570(3);
16 (c) by the CEO of a public authority under section 571(2) or
17 in response to a request made by the CEO of a public
18 authority under section 571(3);
19 (d) by the CEO of a mental health service under
20 section 572(2) or in response to a request made by the
21 CEO of a mental health service under section 572(3).
22 (2) The regulations may provide for --
23 (a) the receipt and storage of information to which this
24 section applies; or
25 (b) access to such information.
page 382
Mental Health Bill 2013
Miscellaneous matters Part 27
s. 577
1 Part 27 -- Miscellaneous matters
2 577. Restrictions on powers of medical practitioners and mental
3 health practitioners
4 (1) In this section --
5 company means a company registered under the Corporations
6 Act 2001 (Commonwealth);
7 prescribed financial market has the meaning given in the
8 Corporations Act 2001 (Commonwealth) section 9;
9 related person, in relation to a medical practitioner or mental
10 health practitioner, means --
11 (a) a relative of the practitioner; or
12 (b) a company not listed on a prescribed financial market in
13 Australia in respect of any share in which the
14 practitioner, the practitioner's spouse or de facto partner
15 or a child of the practitioner has a relevant interest; or
16 (c) a company listed on a prescribed financial market in
17 Australia in which the aggregate of the interests of the
18 practitioner, the practitioner's spouse or de facto partner
19 and the practitioner's children amounts to a substantial
20 holding; or
21 (d) the trustee of a trust in which the practitioner, the
22 practitioner's spouse or de facto partner or a child of the
23 practitioner has --
24 (i) a beneficial interest, whether vested or
25 contingent; or
26 (ii) a potential beneficial interest because the trust is
27 a discretionary trust;
28 relative, of a person, means a family member of the person
29 referred to in section 281(2);
30 relevant interest, in relation to a share, has the meaning given in
31 the Corporations Act 2001 (Commonwealth) section 9;
page 383
Mental Health Bill 2013
Part 27 Miscellaneous matters
s. 578
1 substantial holding has the meaning given in the Corporations
2 Act 2001 (Commonwealth) section 9.
3 (2) A medical practitioner or mental health practitioner cannot
4 exercise a power under this Act in respect of a person if the
5 practitioner is --
6 (a) a relative of the person; or
7 (b) the person's enduring guardian or guardian; or
8 (c) in partnership with the person; or
9 (d) the employer or employee of the person; or
10 (e) the person's supervisor or subordinate.
11 (3) A person in charge of a ward at an authorised hospital cannot
12 exercise a power under this Act in respect of a patient in the
13 ward if the person in charge is --
14 (a) a relative of the patient; or
15 (b) the patient's enduring guardian or guardian; or
16 (c) in partnership with the patient; or
17 (d) the employer or employee of the patient; or
18 (e) the patient's supervisor or subordinate.
19 (4) A medical practitioner or mental health practitioner cannot refer
20 a person under section 26(2) or (3)(a) for an examination to be
21 conducted by a psychiatrist at a private hospital the licence for
22 which is held by the practitioner or a related person.
23 578. Obstructing or hindering person performing functions
24 A person who, without reasonable excuse (proof of which is on
25 the person) obstructs or hinders a person in the performance of,
26 or a person assisting another person in the performance of, a
27 function under this Act commits an offence.
28 Penalty: a fine of $6 000.
page 384
Mental Health Bill 2013
Miscellaneous matters Part 27
s. 579
1 579. Amendment of referrals and orders
2 (1) For this section, a referral or order made under this Act contains
3 a formal defect if it contains --
4 (a) a clerical error or an error because of an accidental
5 omission; or
6 (b) an evident material error in the description of a person.
7 (2) If a referral or order made under this Act contains a formal
8 defect --
9 (a) the validity of anything done or omitted to be done in
10 reliance on the referral or order is not affected; but
11 (b) the person who does an act or makes an omission in
12 reliance on the referral or order may request the person
13 who made the referral or order to rectify the defect.
14 (3) A person who makes a request under subsection (2)(b) to rectify
15 a referral or order may, by order (a revocation order), revoke
16 any involuntary treatment order made as a consequence of the
17 referral or order if the request is not complied with.
18 (4) A revocation order has effect on and from the time specified in
19 the revocation order.
20 (5) A revocation order does not prevent another referral or order
21 being made under this Act in respect of the person to whom the
22 revocation order relates, whether that referral or order is made
23 before or after the revocation order comes into effect.
24 580. Medical record to be kept by mental health services
25 (1) The person in charge of a mental health service must ensure that
26 a medical record is kept in respect of --
27 (a) each person who is admitted by the mental health
28 service; and
29 (b) each person who is otherwise provided with treatment or
30 care by the mental health service.
page 385
Mental Health Bill 2013
Part 27 Miscellaneous matters
s. 581
1 (2) The medical record must be in the approved form and must
2 include the following information --
3 (a) the name, address and date of birth of the person;
4 (b) the nature of any illness, or mental or physical disability,
5 from which the person suffers;
6 (c) particulars of --
7 (i) any treatment provided to the person by the
8 mental health service; and
9 (ii) the authority for providing the treatment,
10 including details of any order made under this
11 Act under which the treatment was provided;
12 (d) if the person dies at the mental health service -- the date
13 of death and, if known, the cause of death;
14 (e) any other information prescribed by the regulations for
15 this subsection.
16 581. Protection from liability when performing functions
17 (1) An action in tort does not lie against a person other than the
18 State for anything that the person has done in good faith --
19 (a) in the performance or purported performance of a
20 function under this Act; or
21 (b) in assisting another person in the performance or
22 purported performance of a function under this Act.
23 (2) The protection given by subsection (1) applies even though the
24 thing done as described in that provision may have been capable
25 of being done whether or not this Act had been enacted.
26 (3) Despite subsection (1), the State is not relieved from any
27 liability that it might have for an act done by a person against
28 whom this section provides that an action does not lie.
29 (4) In this section, a reference to the doing of anything includes a
30 reference to an omission to do anything.
page 386
Mental Health Bill 2013
Miscellaneous matters Part 27
s. 582
1 582. Protection from liability when detaining person with mental
2 illness
3 (1) This section applies if --
4 (a) a person has lawful charge of a person who has, or is
5 reasonably suspected of having, a mental illness while
6 that person is at a particular place; and
7 (b) the person who has, or is reasonably suspected of
8 having, a mental illness does not have the capacity to
9 decide whether or not to withdraw himself or herself
10 from that lawful charge.
11 (2) No civil or criminal liability is incurred because the person who
12 has that lawful charge detains, or continues the detention of, the
13 person who has, or is reasonably suspected of having, a mental
14 illness in order to prevent that person from leaving the particular
15 place.
16 (3) The protection given by subsection (2) does not apply if the
17 person who has lawful charge of the person who has, or is
18 reasonably suspected of having, a mental illness uses bodily
19 restraint to prevent that person from leaving the particular place.
20 (4) For subsection (3), the bodily restraint of a person is the
21 physical restraint or mechanical restraint, within the meaning of
22 those terms in section 227(2) and (3), of the person.
23 583. Relationship with Freedom of Information Act 1992
24 This Act has effect despite the Freedom of Information
25 Act 1992.
26 584. Regulations
27 The Governor may make regulations prescribing matters --
28 (a) required or permitted to be prescribed by this Act; or
29 (b) necessary or convenient to be prescribed for giving
30 effect to this Act.
page 387
Mental Health Bill 2013
Part 27 Miscellaneous matters
s. 585
1 585. Review of this Act after 5 years
2 (1) The Minister must review the operation and effectiveness of this
3 Act as soon as practicable after the expiry of 5 years from the
4 commencement of section 10.
5 (2) The Minister must, as soon as practicable --
6 (a) prepare a report about the outcome of the review; and
7 (b) cause a copy of the report to be laid before each House
8 of Parliament.
page 388
Mental Health Bill 2013
Charter of Mental Health Care Principles Schedule 1
1 Schedule 1 -- Charter of Mental Health Care Principles
2 [s. 11, 12, 320(2)(f), 333(3)(d) and 351(1)(b)]
3 Purpose
4 A. The Charter of Mental Health Care Principles is a rights-based set
5 of principles that mental health services must make every effort to
6 comply with in providing treatment, care and support to people
7 experiencing mental illness.
8 B. The Charter is intended to influence the interconnected factors that
9 facilitate recovery from mental illness.
10 Principle 1: Attitude towards people experiencing mental illness
11 A mental health service must treat people experiencing mental illness
12 with dignity, equality, courtesy and compassion and must not
13 discriminate against or stigmatise them.
14 Principle 2: Human rights
15 A mental health service must protect and uphold the fundamental human
16 rights of people experiencing mental illness and act in accordance with
17 the national and international standards that apply to mental health
18 services.
19 Principle 3: Person-centred approach
20 3.1 A mental health service must uphold a person-centred focus with a
21 view to obtaining the best possible outcomes for people
22 experiencing mental illness, including by recognising life
23 experiences, needs, preferences, aspirations, values and skills,
24 while delivering goal-oriented treatment, care and support.
25 3.2 A mental health service must promote positive and encouraging
26 recovery focused attitudes towards mental illness, including that
27 people can and do recover, lead full and productive lives and make
28 meaningful contributions to the community.
29 Principle 4: Delivery of treatment, care and support
30 A mental health service must be easily accessible and safe and provide
31 people experiencing mental illness with timely treatment, care and
page 389
Mental Health Bill 2013
Schedule 1 Charter of Mental Health Care Principles
1 support of high quality based on contemporary best practice to promote
2 recovery in the least restrictive manner that is consistent with their needs.
3 Principle 5: Choice and self-determination
4 A mental health service must involve people in decision-making and
5 encourage self-determination, cooperation and choice, including by
6 recognising people's capacity to make their own decisions.
7 Principle 6: Diversity
8 A mental health service must recognise, and be sensitive and responsive
9 to, diverse individual circumstances, including those relating to gender,
10 sexuality, age, family, disability, lifestyle choices and cultural and
11 spiritual beliefs and practices.
12 Principle 7: People of Aboriginal or Torres Strait Islander descent
13 A mental health service must provide treatment and care to people of
14 Aboriginal or Torres Strait Islander descent that is appropriate to, and
15 consistent with, their cultural and spiritual beliefs and practices and
16 having regard to the views of their families and, to the extent that it is
17 practicable and appropriate to do so, the views of significant members of
18 their communities, including elders and traditional healers, and
19 Aboriginal or Torres Strait Islander mental health workers.
20 Principle 8: Co-occurring needs
21 A mental health service must address physical, medical and dental health
22 needs of people experiencing mental illness and other co-occurring health
23 issues, including physical and intellectual disability and alcohol and other
24 drug problems.
25 Principle 9: Factors influencing mental health and wellbeing
26 A mental health service must recognise the range of circumstances, both
27 positive and negative, that influence mental health and wellbeing,
28 including relationships, accommodation, recreation, education, financial
29 circumstances and employment.
30 Principle 10: Privacy and confidentiality
31 A mental health service must respect and maintain privacy and
32 confidentiality.
page 390
Mental Health Bill 2013
Charter of Mental Health Care Principles Schedule 1
1 Principle 11: Responsibilities and dependants
2 A mental health service must acknowledge the responsibilities and
3 commitments of people experiencing mental illness, particularly the
4 needs of their children and other dependants.
5 Principle 12: Provision of information about mental illness and
6 treatment
7 A mental health service must provide, and clearly explain, information
8 about the nature of the mental illness and about treatment (including any
9 risks, side effects and alternatives) to people experiencing mental illness
10 in a way that will help them to understand and to express views or make
11 decisions.
12 Principle 13: Provision of information about rights
13 A mental health service must provide, and clearly explain, information
14 about legal rights, including those relating to representation, advocacy,
15 complaints procedures, services and access to personal information, in a
16 way that will help people experiencing mental illness to understand,
17 obtain assistance and uphold their rights.
18 Principle 14: Involvement of other people
19 A mental health service must take a collaborative approach to decision
20 making, including respecting and facilitating the right of people
21 experiencing mental illness to involve their family members, carers and
22 other personal support persons in planning, undertaking, evaluating and
23 improving their treatment, care and support.
24 Principle 15: Accountability and improvement
25 A mental health service must be accountable, committed to continuous
26 improvement and open to solving problems in partnership with all people
27 involved in the treatment, care and support of people experiencing mental
28 illness, including their family members, carers and other personal and
29 professional support persons.
page 391
Mental Health Bill 2013
Schedule 2 Notifiable events
1 Schedule 2 -- Notifiable events
2 [s. 138(2)]
3 Table
Provision Description of event Person responsible
s. 28(8) The making of an order The practitioner who makes
under s. 28 the order
s. 28(12) The release of a person A medical practitioner or
because of s. 28(10) or (11) authorised mental health
practitioner
s. 29(4) The making of a transport The practitioner who makes
order under s. 29(1) the order
s. 31(7) The release of a person The practitioner who
because of s. 31(6) revokes the referral
s. 55(6) The making of an order The person in charge of the
under s. 55(1) authorised hospital
s. 61(5) The making of an order The psychiatrist who makes
under s. 61(1) the order
s. 66(5) The making of a transfer The treating psychiatrist
order under s. 66(1)
s. 68(7) The release of a person The person in charge of the
because of s. 68(6) authorised hospital
s. 89(6) The release of a person The person in charge of the
because of an order made hospital
under s. 89(2)(b) or (c)
s. 90(5) The making of an order The psychiatrist who makes
under s. 90(1) the order
page 392
Mental Health Bill 2013
Notifiable events Schedule 2
Provision Description of event Person responsible
s. 91(5) The making of a transfer The psychiatrist who makes
order under s. 91(2) the order
s. 93(4) The expiry of an inpatient The person in charge of the
treatment order hospital at which the
involuntary inpatient was
being detained
s. 97(3) The absence of a person The person in charge of the
without leave from a hospital or other place
hospital or other place
s. 105(13) The making of an order The psychiatrist who makes
under s. 105(1) the order
s. 106(4) The making of an order The psychiatrist who makes
under s. 106(1) the order
s. 110(5) The making of an order The psychiatrist who makes
under s. 110(2) the order
s. 120(7) The making of an order The supervising psychiatrist
under s. 120(2)
s. 123(8) The making of an order The supervising psychiatrist
under s. 123(1)
s. 124(7) The release of a person The person in charge of the
because of s. 124(6) authorised hospital
s. 130(5) The release of a person The person in charge of the
because of s. 130(4) place
s. 131(8) The making of an order The supervising psychiatrist
under s. 131(2)
s. 242(5) The provision of urgent The person in charge of the
non-psychiatric treatment authorised hospital
page 393
Mental Health Bill 2013
Schedule 2 Notifiable events
Provision Description of event Person responsible
s. 553(4) The making of a transfer The person in charge of the
order under s. 553(1) hospital
s. 555(6) The making of a transfer The person in charge of the
approval order under hospital
s. 555(1)
page 394
Mental Health Bill 2013
Defined Terms
Defined terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined term Provision(s)
admission .............................................................................................................. 4
adult ...................................................................................................................... 4
advance health directive ........................................................................................ 4
advocacy services officer ............................................................................. 374(1)
Agency .................................................................................................................. 4
application................................................................................................. 379, 491
apprehension and return order ....................................................................... 98(1)
approved form ............................................................................................... 4, 160
approved product information,..................................................................... 304(2)
authorised hospital ................................................................................................ 4
authorised mental health practitioner .................................................................... 4
authorised person .............................................................................................. 161
bodily restraint ...................................................................................................... 4
bodily restraint order ......................................................................................... 226
carer ...................................................................................................................... 4
Carers Charter ................................................................................................... 305
CEO .............................................................................................4, 571(1), 572(1)
CEO of the Health Department ............................................................................. 4
Charter of Mental Health Care Principles ............................................................. 4
Chief Mental Health Advocate ............................................................................. 4
Chief Psychiatrist .................................................................................................. 4
child ...................................................................................................................... 4
child and adolescent psychiatrist .......................................................................... 4
close family member ............................................................................................. 4
community mental health service ......................................................................... 4
community treatment order ........................................................................... 4, 113
company ....................................................................................................... 577(1)
complainant....................................................................................................... 305
complaint ............................................................................................. 305, 345(1)
Complaints Office ............................................................................................. 305
Complaints Office staff ..................................................................................... 305
complaints procedure ................................................................................... 308(1)
continuation order .......................................................................... 85, 113, 121(1)
corresponding law ........................................................................................ 549(1)
corresponding overseas authority................................................................. 570(1)
decision ........................................................................................ 379, 469(1), 491
decision or order .......................................................................................... 501(1)
decision-maker ............................................................................................. 453(1)
detention period .................................................................................................. 85
page 395
Mental Health Bill 2013
Defined Terms
Director ............................................................................................................. 305
Director of the Complaints Office ........................................................................ 4
discharge ............................................................................................................... 4
disclosing CEO ................................................................................571(2), 572(2)
document............................................................................................................... 4
electroconvulsive therapy ..................................................................................... 4
emergency psychiatric treatment .......................................................................... 4
enduring guardian ................................................................................................. 4
enduring power of guardianship ........................................................................... 4
excluded mental health service .................................................................... 323(1)
extension order............................................................................................. 152(3)
file .........................................................................................................................4
first treatment period .................................................................................... 118(1)
further opinion .................................................................................121(5), 182(2)
GAA Act ............................................................................................................... 4
general hospital ..................................................................................................... 4
guardian ................................................................................................................ 4
Health Department ................................................................................................ 4
Health Minister ..................................................................................................... 4
hearing ...................................................................................................... 379, 491
hospital .................................................................................................................. 4
identified person ............................................................................................... 348
information about a proceeding .......................................................466(1), 500(1)
informed consent................................................................................................... 4
initial review period ..................................................................................... 386(1)
inpatient treatment order ....................................................................................... 4
intergovernmental agreement....................................................................... 549(1)
interstate authority ....................................................................................... 570(1)
interstate community patient ........................................................................ 549(1)
interstate community treatment order .......................................................... 549(1)
interstate inpatient ........................................................................................ 549(1)
interstate inpatient treatment order .............................................................. 549(1)
interstate mental health service .................................................................... 549(1)
investigation ...................................................................................................... 305
involuntary community patient ..................................................................... 4, 113
involuntary inpatient ............................................................................................. 4
involuntary patient ................................................................................................ 4
involuntary treatment order................................................................................... 4
last review .................................................................................................... 387(1)
last review day ............................................................................................. 387(1)
lawyer ............................................................................................................... 379
leave of absence ................................................................................................ 104
legal practitioner ................................................................................................... 4
long-term voluntary inpatient ........................................................................... 402
maximum extension period .......................................................................... 389(1)
page 396
Mental Health Bill 2013
Defined Terms
medical practitioner .............................................................................................. 4
member ............................................................................................................. 379
mental health advocate .......................................................................................... 4
mental health practitioner ..................................................................................... 4
mental health service ........................ 4, 12(1), 252, 305, 348, 505, 570(1), 572(1)
Mental Health Tribunal ......................................................................................... 4
mental illness ........................................................................................................ 4
mentally impaired accused .................................................................................... 4
Mentally Impaired Accused Review Board .......................................................... 4
metropolitan area .................................................................................................. 4
MIA Act ................................................................................................................ 4
Minister ................................................................................................................. 4
month ........................................................................................................... 201(2)
neurosurgeon......................................................................................................... 4
nominated person .................................................................................................. 4
nomination ............................................................................................................ 4
notifiable event ............................................................................................ 138(1)
notifiable incident ............................................................................................. 523
nurse...................................................................................................................... 4
occupational therapist ........................................................................................... 4
off-label treatment........................................................................................ 304(2)
oral authorisation ...................................................................................... 211, 226
order to attend .............................................................................................. 128(2)
parent or guardian ................................................................................................. 4
party .......................................................................................................... 379, 491
patient ................................................................................................................... 4
patient's psychiatrist ............................................................................................. 4
periodic review period ................................................................................. 387(1)
person concerned ...................................................................................... 379, 491
person's representative ................................................................................ 334(1)
personal information ............................................................................................. 4
personal possessions .................................................................................... 259(2)
personal support person ........................................................................................ 4
prejudicial conduct ....................................................................................... 345(1)
prescribed..................................................................................................... 309(1)
prescribed financial market .......................................................................... 577(1)
prescribed health professional............................................................. 48(1), 79(1)
prescribed number of days ........................................................................... 387(1)
prescribed period.......................................................................................... 389(1)
prescribed person .............................................................................317(1), 452(1)
prescribed provision .......................................................................................... 171
prescribed requirement ..................................................................................... 420
prescribed State authority ............................................................................ 571(1)
President of the Tribunal ................................................................................... 379
presiding member ............................................................................................. 379
page 397
Mental Health Bill 2013
Defined Terms
private hospital ...................................................................................................... 4
private psychiatric hostel ...................................................................................... 4
proceeding................................................................................................. 379, 491
product information ..................................................................................... 304(2)
psychiatrist ............................................................................................................ 4
psychologist .......................................................................................................... 4
psychosurgery ....................................................................................................... 4
public hospital ....................................................................................................... 4
publish..............................................................................................466(1), 500(1)
question of law .................................................................................439(1), 493(1)
registered service provider ........................................................................... 326(1)
registered therapeutic goods ........................................................................ 304(2)
registrar ............................................................................................................. 379
registration board .................................................................................................. 4
registry officer................................................................................................... 379
related person ............................................................................................... 577(1)
relative .............................................................................................316(1), 577(1)
relevant decision .......................................................................................... 389(1)
relevant document ............................................................................................. 247
relevant information ................................... 334(1), 521(1), 570(1), 571(1), 572(1)
relevant interest ............................................................................................ 577(1)
relevant record ............................................................................................. 334(1)
relevant written law ..................................................................................... 574(1)
remuneration ......................................................................................................... 4
reportable incident ....................................................................................... 254(1)
requesting CEO ................................................................................571(3), 572(3)
respondent ......................................................................................................... 305
restricted information ................................................................................... 459(1)
review period ...................................................................................118(1), 389(1)
review proceeding ........................................................................................ 453(1)
reviewable decision...................................................................................... 453(1)
revocation order .................................................................. 101(1), 154(1), 579(3)
seclusion ............................................................................................................... 4
seclusion order .................................................................................................. 211
serious adverse event ................................................................................... 201(2)
service provider......................................................................................... 305, 420
social worker ......................................................................................................... 4
specified information ................................................................................... 314(1)
staff member ......................................................................................................... 4
State authority .............................................................................................. 570(1)
State inpatient .............................................................................................. 549(1)
substantial holding ....................................................................................... 577(1)
supervising psychiatrist ................................................................................. 4, 113
traditional healer ................................................................................................... 4
transfer approval order ................................................................................. 555(1)
page 398
Mental Health Bill 2013
Defined Terms
transfer order ........................................................................... 66(1), 91(2), 553(1)
transport officer............................................................................................. 4, 147
treating practitioner ........................................................................................... 113
treating psychiatrist ............................................................................................... 4
treatment ............................................................................................................... 4
treatment decision ................................................................................................. 4
treatment in the community .................................................................................. 4
treatment order .................................................................................................. 397
treatment period ................................................................................................ 113
treatment, support and discharge plan................................................................... 4
Tribunal............................................................................................................. 379
urgent non-psychiatric treatment ................................................................. 242(2)
voluntary inpatient ................................................................................................ 4
voluntary patient ................................................................................................... 4
witness .............................................................................................................. 379
youth advocate ............................................................................................. 350(2)
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