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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to make provision for the treatment, care and rehabilitation of
persons with serious mental illness with the goal of bringing about their
recovery as far as is possible; to confer powers to make orders for community
treatment, or detention and treatment, of such persons where required; to
provide protections of the freedom and legal rights of mentally ill persons; to
repeal the Mental Health Act 1993; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
4 Application of Act to
children
5 Medical examinations by audio-visual conferencing
Part 2—Objects and guiding
principles
6 Objects
7 Guiding principles
Part 3—Voluntary patients
8 Voluntary
patients
9 Voluntary patients to be given statement of rights
Part 4—Orders for treatment of persons with mental
illness
Division 1—Level 1 community treatment
orders
10 Level 1 community treatment orders
11 Board and Chief
Psychiatrist to be notified of level 1 orders or their variation or
revocation
12 Copies of level 1 orders, notices and statements of rights to
be given to patients etc
13 Treatment of patients to whom level 1 orders
apply
14 Chief Psychiatrist to ensure monitoring of compliance with level 1
orders
15 Board to review level 1 orders
Division 2—Level 2 community treatment
orders
16 Level 2 community treatment orders
17 Chief Psychiatrist
to be notified of level 2 orders or their variation or
revocation
18 Treatment of patients to whom level 2 orders apply
19 Chief
Psychiatrist to ensure monitoring of compliance with level 2 orders
Part 5—Orders for detention and treatment of persons
with mental illness
Division 1—Non-compliance with community treatment
orders and making of detention and treatment orders
20 Non-compliance
with community treatment orders and making of detention and treatment
orders
Division 2—Level 1 detention and treatment
orders
21 Level 1 detention and treatment orders
22 Board and Chief
Psychiatrist to be notified of level 1 orders or their revocation
23 Copies
of level 1 orders, notices and statements of rights to be given to patients
etc
24 Treatment of patients to whom level 1 orders apply
Division 3—Level 2 detention and treatment
orders
25 Level 2 detention and treatment orders
26 Notices and
reports relating to level 2 orders
27 Copies of level 2 orders and notices to
be given to patients etc
28 Treatment of patients to whom level 2 orders
apply
Division 4—Level 3 detention and treatment
orders
29 Level 3 detention and treatment orders
30 Chief
Psychiatrist to be notified of level 3 orders or their variation or
revocation
31 Treatment of patients to whom level 3 orders apply
Division 5—General
32 Detention and
treatment orders displace community treatment orders
33 Duty of director of
treatment centre to comply with detention and treatment orders
34 Powers
required for carrying detention and treatment orders into effect
35 Transfer
of patients to whom detention and treatment orders apply
36 Leave of absence
of patients detained under detention and treatment orders
37 Persons granted
leave of absence to be given statement of rights
38 Cancellation of leave of
absence
Part 6—Treatment and care plans
39 Treatment
and care plans for voluntary patients
40 Treatment and care plans for
patients to whom community treatment orders apply
41 Treatment and care plans
for patients to whom detention and treatment orders apply
Part 7—Regulation of prescribed psychiatric
treatments
Division 1—ECT
42 ECT
Division 2—Neurosurgery for mental
illness
43 Neurosurgery for mental illness
Division 3—Other prescribed psychiatric
treatments
44 Other prescribed psychiatric treatments
Part 8—Further protections for persons with mental
illness
45 Assistance of interpreters
46 Copies of Board orders,
decisions and statements of rights to be given
47 Patients' right to be
supported by guardian etc
48 Patients' right to communicate with others
outside treatment centre
49 Neglect or ill-treatment
Part 9—Powers relating to persons who have or appear
to have mental illness
50 Issuing of patient transport
requests
51 Powers of authorised officers relating to persons who have or
appear to have mental illness
52 Powers of police officers relating to
persons who have or appear to have mental illness
53 Officers may assist each
other
54 Roles of various officers
55 Offence to hinder etc
officer
Part 10—Arrangements between South Australia and other
jurisdictions
Division
1—Preliminary
56 Interpretation
57 Ministerial
agreements
58 Requests or approvals relating to actions involving other
jurisdictions
59 Powers of South Australian officers under corresponding laws
or Ministerial agreement
60 Regulations may modify operation of
Part
Division 2—Community treatment
orders
61 South Australian community treatment orders and treatment in
other jurisdictions
62 Powers of interstate officers
63 Interstate
community treatment orders and treatment in South Australia
64 Making of
South Australian community treatment orders when interstate orders
apply
Division 3—Transfer to or from South Australian
treatment centres
65 Transfer from South Australian treatment
centres
66 Transfer to South Australian treatment centres
67 Patient
transport requests
68 Powers when patient transport request issued
Division 4—Transport to other
jurisdictions
69 Transport to other jurisdictions when South
Australian detention and treatment orders apply
70 Transport to other
jurisdictions of persons with apparent mental illness
71 Transport to other
jurisdictions when interstate detention and treatment orders apply
Division 5—Transport to South
Australia
72 Transport to South Australia when South Australian
detention and treatment orders apply
73 Transport to South Australia of
persons with apparent mental illness
Part 11—Reviews and appeals
Division
1—Reviews
74 Reviews
75 Decisions and reports on
reviews
Division 2—Appeals
76 Appeals to Board
against orders (other than Board orders)
77 Operation of orders pending
appeal
78 Representation on appeals to Board
79 Appeals to District Court
and Supreme Court
Part 12—Administration
Division 1—Minister and Chief
Executive
80 Minister's functions
81 Delegation by
Minister
82 Delegation by Chief Executive
Division 2—Chief Psychiatrist
83 Chief
Psychiatrist
84 Chief Psychiatrist's functions
85 Delegation by Chief
Psychiatrist
Division 3—Authorised medical
practitioners
86 Authorised medical practitioners
Division 4—Authorised health
professionals
87 Authorised health professionals
Division 5—Treatment centres
88 Approved
treatment centres
89 Limited treatment centres
90 Register of
patients
91 Particulars relating to admission of patients to treatment
centres
92 Delegation by directors of treatment centres
Part 13—Miscellaneous
93 Errors in orders
etc
94 Offences relating to authorisations and orders
95 Medical
practitioners or health professionals not to act in respect of
relatives
96 Removing patients from treatment centres
97 Confidentiality
and disclosure of information
98 Prohibition of publication of reports of
proceedings
99 Requirements for notice to Board or Chief
Psychiatrist
100 Evidentiary provisions
101 Regulations
Schedule 1—Certain conduct may not indicate mental
illness
Schedule 2—Repeal and transitional
provisions
1 Repeal of Mental Health
Act 1993
2 Transitional provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Mental Health Act 2008.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, unless the contrary intention appears—
ambulance officer means a person who is—
(a) employed as an ambulance officer, or engaged as a volunteer ambulance
officer, with an organisation that provides ambulance services; and
(b) authorised by the chief executive officer of SA Ambulance Service Inc
to exercise the powers conferred by this Act on authorised officers;
approved treatment centre means a place determined by the
Minister under Part 12 Division 5 to be an approved treatment centre for the
purposes of this Act;
authorised health professional means a person determined by
the Minister under Part 12 Division 4 to be an authorised health professional
for the purposes of this Act;
authorised medical practitioner means a person determined by
the Minister under Part 12 Division 3 to be an authorised medical practitioner
for the purposes of this Act;
authorised officer means—
(a) a mental health clinician; or
(b) an ambulance officer; or
(c) a person employed as a medical officer or flight nurse by the
Royal Flying Doctor Service of Australia (Central Operations) Incorporated
or the Royal Flying Doctor Service of Australia (South Eastern Section);
or
(d) a person of a class prescribed by the regulations;
Board means the Guardianship Board established under the
Guardianship and Administration Act 1993;
business day means a day other than a Saturday or a Sunday or
other public holiday;
carer—a person is a carer of another if the person
provides ongoing care or assistance to the other as a carer within the meaning
of the Carers Recognition Act 2005; the term includes a person who
was a carer of another before interruption of the provision of care due to the
other's illness;
Chief Executive means the chief executive of the
administrative unit of the Public Service that is, under the Minister,
responsible for the administration of this Act;
Chief Psychiatrist means the person appointed to the position
of Chief Psychiatrist under Part 12 Division 2;
child means a person under 18 years of age;
community treatment order means—
(a) a level 1 community treatment order; or
(b) a level 2 community treatment order;
consent to treatment means effective consent to the
treatment;
detention and treatment order means—
(a) a level 1 detention and treatment order; or
(b) a level 2 detention and treatment order; or
(c) a level 3 detention and treatment order;
director of a treatment centre means the person for the time
being in charge of the centre or a person duly authorised to admit patients to
the centre;
domestic partner—a person is a domestic partner of
another if the person is a domestic partner of the other within the meaning of
the Family Relationships Act 1975, whether declared as such under
that Act or not; the term includes a person who was a domestic partner of
another before interruption of their shared living arrangements due to the
other's illness;
ECT means electro-convulsive therapy;
guardian—a person is a guardian of another if the
person is acting or appointed under any Act or law as the guardian of the
other;
legal practitioner means a person admitted and enrolled as a
practitioner of the Supreme Court of South Australia;
level 1 community treatment order—see Part 4 Division
1;
level 1 detention and treatment order—see Part 5
Division 2;
level 2 community treatment order—see Part 4 Division
2;
level 2 detention and treatment order—see Part 5
Division 3;
level 3 detention and treatment order—see Part
5 Division 4;
limited treatment centre means a place determined by the
Minister under Part 12 Division 5 to be a limited treatment centre for the
purposes of this Act;
medical agent—a person is a medical agent of another if
the person has been appointed under an Act or law to make decisions on behalf of
the other about the other's medical treatment;
medical examination means examination of a person and the
person's mental health by a medical practitioner or authorised health
professional;
medical practitioner means a person registered on the general
register under the Medical Practice Act 2004;
mental health clinician means a person of a class of persons
who are engaged in the treatment or care of patients and classified by the Chief
Psychiatrist as mental health clinicians for the purposes of this Act;
mental illness means any illness or disorder of the mind; see
also Schedule 1 (Certain conduct may not indicate mental illness);
neurosurgery for mental illness means leucotomy,
amygdaloidotomy, hypothalamotomy, temporal lobectomy, cingulectomy, electrode
implantation in the brain or any other brain surgery for the relief of mental
illness by the elimination or stimulation of apparently normal brain
tissues;
patient means—
(a) a voluntary patient in a treatment centre; or
(b) a person to whom a community treatment order applies; or
(c) a person to whom a detention and treatment order applies;
patient at large—a patient is at large if a detention
and treatment order applies to the patient but—
(a) the patient has not been taken into, or remained in, the care and
control of treatment centre staff or an authorised officer or police officer
after the making of the order and before admission to a treatment centre;
or
(b) the patient has left a treatment centre in which he or she was being
detained, or the care and control of treatment centre staff, without leave of
absence under Part 5 Division 5; or
(c) the patient has been granted leave of absence from a treatment centre
under Part 5 Division 5, but has not returned to the centre or been taken into
the care and control of treatment centre staff or an authorised officer or
police officer by the expiry of the leave or after cancellation of the
leave;
patient transport request means a patient transport request
issued under Part 9 or Part 10;
prescribed psychiatric treatment means—
(a) ECT; or
(b) neurosurgery for mental illness; or
(c) any other treatment declared by the regulations to be prescribed
psychiatric treatment;
psychiatrist means a person registered on the specialist
register under the Medical Practice Act 2004 as a specialist in
psychiatry;
Public Advocate means the person holding or acting in the
office of Public Advocate under the Guardianship and Administration
Act 1993;
relative—a person is a relative of another if
—
(a) the person is related to the other by blood or marriage; or
(b) the person is a domestic partner of the other; or
(c) the person is of Aboriginal or Torres Strait Islander descent and
related to the other according to Aboriginal kinship rules, or Torres Strait
Islander kinship rules, as the case may require;
senior psychiatrist means a person who has, since qualifying
for registration as a specialist in psychiatry, had at least 5 years'
experience as a practising psychiatrist;
staff of a treatment centre means the director of the centre
or any person performing duties involved in the administration or operations of
the centre, whether under a contract of employment or some other contractual
arrangement;
treatment or medical treatment means treatment
or procedures administered or carried out by a medical practitioner or other
health professional in the course of professional practice, and includes the
prescription or supply of drugs;
treatment centre means an approved treatment centre or a
limited treatment centre;
voluntary patient means a person admitted as a voluntary
patient in a treatment centre who is not subject to a detention and treatment
order.
4—Application
of Act to children
(1) This Act applies to children in the same way as to persons of full
age, subject to the following:
(a) a right conferred on a person under this Act may, if the person is a
child under 16 years of age, be exercised by a parent or guardian of the child
on behalf of the child;
(b) an obligation under this Act to give a document to a person is, if the
person is a child under 16 years of age, to be treated as an obligation to give
the document to a parent or guardian of the child, and operates to the exclusion
of any further obligation under this Act to send or give the document to a
guardian, medical agent, relative, carer or friend.
(2) Subsection (1) does not affect the operation of a provision of
this Act that expressly relates to a child or children.
5—Medical
examinations by audio-visual conferencing
(1) A reference in this Act to medical examination or examination of a
person by a medical practitioner or authorised health professional includes, if
it is not practicable in the circumstances for a medical practitioner or
authorised health professional to carry out an examination of the person in the
person's physical presence, a reference to an examination of the person by the
medical practitioner or authorised health professional by means of audio-visual
conferencing.
(2) In this section—
audio-visual conferencing means any system of two-way
communication linking different places so that a person speaking at any 1 of the
places can be seen and heard at the other.
Part 2—Objects and
guiding principles
The objects of this Act are—
(a) to ensure that persons with serious mental illness—
(i) receive a comprehensive range of services of the highest standard for
their treatment, care and rehabilitation with the goal of bringing about their
recovery as far as is possible; and
(ii) retain their freedom, rights, dignity and self-respect as far as is
consistent with the proper delivery of the services and the protection of the
public; and
(b) for that purpose, to confer appropriately limited powers to make
orders for community treatment, or detention and treatment, of such persons
where required.
(1) The Minister, the Board, the Chief Psychiatrist, health professionals
and other persons and bodies involved in the administration of this Act are to
be guided by the following principles in the performance of their
functions:
(a) mental health services should be designed to bring about the best
therapeutic outcomes for patients, and, as far as possible, their recovery and
participation in community life;
(b) the services should be provided on a voluntary basis as far as
possible, and otherwise in the least restrictive way and in the least
restrictive environment that is consistent with their efficacy and public
safety, and at places as near as practicable to where the patients, or their
families or other carers or supporters, reside;
(c) the services should—
(i) be governed by comprehensive treatment and care plans that are
developed in a multi-disciplinary framework in consultation with the patients
(including children) and their family or other carers or supporters;
and
(ii) take into account the different developmental stages of children and
young persons and the needs of the aged; and
(iii) take into account the different cultural backgrounds of patients;
and
(iv) in the case of patients of Aboriginal or Torres Strait Islander
descent, take into account the patients' traditional beliefs and practices and,
when practicable and appropriate, involve collaboration with health workers and
traditional healers from their communities;
(d) there should be regular medical examination of every patient's mental
and physical health and regular medical review of any order applying to the
patient;
(e) children and young persons should be cared for and treated separately
from other patients as necessary to enable the care and treatment to be tailored
to their different developmental stages;
(f) the rights, welfare and safety of the children and other dependants of
patients should always be considered and protected as far as possible;
(g) medication should be used only for therapeutic purposes or safety
reasons and not as a punishment or for the convenience of others;
(h) mechanical body restraints and seclusion should be used only as a last
resort for safety reasons and not as a punishment or for the convenience of
others;
(i) patients (together with their family or other carers or supporters)
should be provided with comprehensive information about their illnesses, any
orders that apply to them, their legal rights, the treatments and other services
that are to be provided or offered to them and what alternatives are
available;
(j) information should be provided in a way that ensures as far as
practicable that it can be understood by those to whom it is provided.
(2) In this section—
mental health services means all services involved in the
treatment, care and rehabilitation of persons with serious mental illness,
including the making and carrying out of orders under this Act and services to
assist the recovery of patients after the termination of the orders or the
completion of treatment.
(1) A person may be admitted as a voluntary patient in a treatment centre
at his or her own request.
(2) A person admitted as a voluntary patient in a treatment centre may
leave the centre at any time unless a detention and treatment order then applies
to the person.
9—Voluntary
patients to be given statement of rights
(1) The director of a treatment centre must ensure that a voluntary
patient in the centre is given, as soon as practicable after admission, a
written statement in the form approved by the Minister (a statement of
rights)—
(a) informing the patient of his or her legal rights; and
(b) containing any other information prescribed by the
regulations.
(2) If a patient is unable to read or otherwise comprehend the statement
of rights, the director must ensure that any steps that are practicable in the
circumstances are taken to convey the information contained in the statement to
the patient.
(3) Subject to subsection (4), the director must cause a copy of the
statement of rights to be sent or given to a guardian, medical agent, relative,
carer or friend of the patient as soon as practicable.
(4) The following provisions apply for the purposes of
subsection (3):
(a) the person to be sent or given a copy of the statement of rights must
be—
(i) a guardian, medical agent, relative, carer or friend of the patient
nominated by the patient for the purpose; or
(ii) if that is not practicable or appropriate—a guardian, medical
agent, relative, carer or friend of the patient who appears to have or be
assuming responsibility for the care of the patient; or
(iii) if that is not practicable or appropriate—any other guardian,
medical agent, relative, carer or friend of the patient to whom it is
practicable and appropriate to send or give a copy of the statement;
(b) the director is not required to send or give a copy of the statement
to a person whose whereabouts are not known to or readily ascertainable by the
director;
(c) it is not appropriate for the director to send or give a copy of the
statement to a particular person if the director has reason to believe that it
would be contrary to the patient's best interests to do so.
Part
4—Orders for treatment of persons with mental illness
Division
1—Level 1 community treatment orders
10—Level
1 community treatment orders
(1) A medical practitioner or authorised health professional may make an
order for the treatment of a person (a level 1 community treatment
order) if it appears to the medical practitioner or authorised health
professional, after examining the person, that—
(a) the person has a mental illness; and
(b) because of the mental illness, the person requires treatment for the
person's own protection from harm (including harm involved in the continuation
or deterioration of the person's condition) or for the protection of others from
harm; and
(c) there are facilities and services available for appropriate treatment
of the illness; and
(d) there is no less restrictive means than a community treatment order of
ensuring appropriate treatment of the person's illness.
(2) A level 1 community treatment order must be made in writing in the
form approved by the Minister.
(3) A level 1 community treatment order, unless earlier revoked, expires
at a time fixed in the order which must be 2 pm on a business day not later than
28 days after the day on which it is made.
(4) If a level 1 community treatment order has been made by a person other
than a psychiatrist or authorised medical practitioner, the following provisions
apply:
(a) a psychiatrist or authorised medical practitioner must examine the
patient within 24 hours of the making of the order;
(b) if it is not practicable to examine the patient within that period, a
psychiatrist or authorised medical practitioner must examine the patient as soon
as practicable thereafter;
(c) after completing the examination, the psychiatrist or authorised
medical practitioner may confirm the level 1 community treatment order if
satisfied that the grounds referred to in subsection (1) exist for the
making of a level 1 community treatment order, but otherwise must revoke
the order.
(5) A medical practitioner or authorised health professional may form an
opinion about a person under subsection (1) or (4) based on his or her own
observations and any other available evidence that he or she considers reliable
and relevant (which may include evidence about matters occurring outside the
State).
(6) A psychiatrist or authorised medical practitioner who has examined a
patient to whom a level 1 community treatment order applies may vary or revoke
the order at any time.
Note—
A psychiatrist or authorised medical practitioner who revokes a
level 1 community treatment order may, in substitution, make a level 1
detention and treatment order under Part 5 Division 2.
(7) Confirmation, variation or revocation of a level 1 community treatment
order must be effected by written notice in the form approved by the
Minister.
11—Board and Chief
Psychiatrist to be notified of level 1 orders or their variation or
revocation
(1) A psychiatrist or authorised medical practitioner making, confirming,
varying or revoking a level 1 community treatment order must ensure that
the Board and the Chief Psychiatrist are each sent or given, within
1 business day, a written notice in the form approved by the
Minister.
(2) The Registrar of the Board must, within 1 business day, by written
notice sent or given to the psychiatrist or authorised medical practitioner,
acknowledge receipt by the Board of a notice under
subsection (1).
(3) The Chief Psychiatrist must, within 1 business day, by written notice
sent or given to the psychiatrist or authorised medical practitioner,
acknowledge receipt by the Chief Psychiatrist of a notice under
subsection (1).
12—Copies of level
1 orders, notices and statements of rights to be given to patients
etc
(1) A medical practitioner or authorised health professional making a
level 1 community treatment order must ensure that the patient is given, as soon
as practicable, a copy of the order.
(2) A medical practitioner or authorised health professional making a
level 1 community treatment order must ensure that the patient is given, as soon
as practicable, a written statement in the form approved by the Minister (a
statement of rights)—
(a) informing the patient of his or her legal rights; and
(b) containing any other information prescribed by the
regulations.
(3) If a patient is unable to read or otherwise comprehend the statement
of rights, the medical practitioner or authorised health professional must
ensure that any steps that are practicable in the circumstances are taken to
convey the information contained in the statement to the patient.
(4) Subject to subsection (6), a psychiatrist or authorised medical
practitioner making or confirming a level 1 community treatment order must cause
a copy of the order and statement of rights to be sent or given to a guardian,
medical agent, relative, carer or friend of the patient as soon as
practicable.
(5) If a level 1 community treatment order is varied or revoked, the
psychiatrist or authorised medical practitioner varying or revoking the order
must—
(a) ensure that the patient is given, as soon as practicable, a copy of
the notice of variation or revocation of the order; and
(b) subject to subsection (6), cause a copy of the notice of
variation or revocation to be sent or given to a guardian, medical agent,
relative, carer or friend of the patient as soon as practicable.
(6) The following provisions apply for the purposes of
subsections (4) and (5)(b):
(a) the person to be sent or given a copy of the order and statement of
rights, or notice of variation or revocation, must be—
(i) a guardian, medical agent, relative, carer or friend of the patient
nominated by the patient for the purpose; or
(ii) if that is not practicable or appropriate—a guardian, medical
agent, relative, carer or friend of the patient who appears to have or be
assuming responsibility for the care of the patient; or
(iii) if that is not practicable or appropriate—any other guardian,
medical agent, relative, carer or friend of the patient to whom it is
practicable and appropriate to send or give the copy of the order and statement,
or notice of variation or revocation;
(b) the psychiatrist or authorised medical practitioner is not required to
send or give a copy of the order and statement, or notice of variation or
revocation, to a person whose whereabouts are not known to or readily
ascertainable by the psychiatrist or authorised medical practitioner;
(c) it is not appropriate for the psychiatrist or authorised medical
practitioner to send or give a copy of the order and statement, or notice of
variation or revocation, to a particular person if the psychiatrist or
authorised medical practitioner has reason to believe that it would be contrary
to the patient's best interests to do so.
13—Treatment
of patients to whom level 1 orders apply
(1) Subject to subsection (2), a patient to whom a level 1 community
treatment order applies may be given treatment for his or her mental illness of
a kind authorised by a psychiatrist or authorised medical practitioner who has
examined the patient.
(2) Authorisation is not required under subsection (1) for treatment
if a medical practitioner considers that—
(a) the nature of the patient's mental illness is such that the treatment
is urgently needed for the patient's well-being; and
(b) in the circumstances it is not practicable to obtain that
authorisation.
(3) The treatment may be given despite the absence or refusal of consent
to the treatment.
(4) This section does not apply to prescribed psychiatric treatment, or to
prescribed treatment within the meaning of the Guardianship and
Administration Act 1993.
14—Chief
Psychiatrist to ensure monitoring of compliance with level 1
orders
The Chief Psychiatrist must, after receiving notice of the making of a
level 1 community treatment order, ensure that there is a mental health
clinician who has ongoing responsibility for monitoring and reporting to the
Chief Psychiatrist on the patient's compliance with the order.
15—Board
to review level 1 orders
(1) The Board must review a level 1 community treatment order as soon as
practicable after receiving notice of the order and before the order
expires.
(2) The Board may conduct a review under this section in any manner that
it considers appropriate.
(3) The Board must, on a review of a level 1 community treatment order,
revoke the order unless satisfied that grounds exist for a level 2 community
treatment order to be made under Division 2 in respect of the patient.
Division
2—Level 2 community treatment orders
16—Level
2 community treatment orders
(1) If the Board is satisfied that—
(a) a person has a mental illness; and
(b) because of the mental illness, the person requires treatment for the
person's own protection from harm (including harm involved in the continuation
or deterioration of the person's condition) or for the protection of others from
harm; and
(c) there are facilities and services available for appropriate treatment
of the illness; and
(d) there is no less restrictive means than a community treatment order of
ensuring appropriate treatment of the person's illness,
the Board may make an order for the treatment of the person (a level
2 community treatment order).
(2) A level 2 community treatment order may be made in respect of a
person—
(a) on an application to the Board for the Board's decision as to whether
it should make a community treatment order in respect of the person (whether or
not a level 1 community treatment order has been made in respect of the person);
or
(b) on a review by the Board under section 15 of a level 1 community
treatment order that applies to the person; or
(c) on an application to the Board under Part 5 Division 4 for the
revocation of a level 3 detention and treatment order that applies to the
person.
(3) An application may be made to the Board for the Board's decision as to
whether it should make a community treatment order in respect of a person
by—
(a) the Public Advocate; or
(b) a medical practitioner; or
(c) a mental health clinician; or
(d) a guardian, medical agent, relative, carer or friend of the person;
or
(e) any other person who satisfies the Board that he or she has a proper
interest in the welfare of the patient.
(4) A level 2 community treatment order, unless earlier revoked, expires
at a time fixed in the order which must be—
(a) in the case of an order relating to a child—2 pm on a business
day not later than 6 calendar months after the day on which it is made;
or
(b) in any other case—2 pm on a business day not later than
12 calendar months after the day on which it is made.
(5) The Registrar of the Board must, not less than 2 months before the
expiry of a level 2 community treatment order that has a period of operation of
more than 6 months, send to the applicant (if any) for the order, the Public
Advocate and to any other person who it appears to the Registrar may have a
proper interest in the welfare of the patient a written reminder of the date of
expiry of the order.
(6) The Board may, on application, by order, vary or revoke a level 2
community treatment order at any time.
(7) An application for variation or revocation of a level 2 community
treatment order may be made by—
(a) the patient; or
(b) the Public Advocate; or
(c) a medical practitioner; or
(d) a mental health clinician; or
(e) a guardian, medical agent, relative, carer or friend of the patient;
or
(f) any other person who satisfies the Board that he or she has a proper
interest in the welfare of the patient.
17—Chief
Psychiatrist to be notified of level 2 orders or their variation or
revocation
The Registrar of the Board must ensure that the Chief Psychiatrist is
notified, within 1 business day, of the making, variation or revocation of
a level 2 community treatment order by the Board.
18—Treatment of
patients to whom level 2 orders apply
(1) Subject to subsection (2), a patient to whom a level 2 community
treatment order applies may be given treatment for his or her mental illness of
a kind authorised by a psychiatrist or authorised medical practitioner who has
examined the patient.
(2) Authorisation is not required under subsection (1) for treatment
if a medical practitioner considers that—
(a) the nature of the patient's mental illness is such that the treatment
is urgently needed for the patient's well-being; and
(b) in the circumstances it is not practicable to obtain that
authorisation.
(3) Treatment may be given under this section despite the absence or
refusal of consent to the treatment.
(4) This section does not apply to prescribed psychiatric treatment, or to
prescribed treatment within the meaning of the Guardianship and
Administration Act 1993.
Note—
Under Part 6, the treatment and care of a patient to whom a level 2
community treatment order applies is to be governed by a treatment and care
plan.
19—Chief
Psychiatrist to ensure monitoring of compliance with level 2
orders
The Chief Psychiatrist must ensure that for each patient to whom a level 2
community treatment order applies there is a mental health clinician who has
ongoing responsibility for monitoring and reporting to the Chief Psychiatrist on
the patient's compliance with the order.
Part
5—Orders for detention and treatment of persons with mental
illness
Division
1—Non-compliance with community treatment orders and making of detention
and treatment orders
20—Non-compliance
with community treatment orders and making of detention and treatment
orders
(1) A person's refusal or failure to comply with a community treatment
order is a relevant consideration in deciding whether a detention and treatment
order should be made in respect of the person under this Part.
(2) However, nothing in this Act prevents the making of a detention and
treatment order under this Part in respect of a person without a prior community
treatment order having been made in respect of the person if a detention and
treatment order is required in the particular circumstances.
Division
2—Level 1 detention and treatment orders
21—Level
1 detention and treatment orders
(1) A medical practitioner or authorised health professional may make an
order that a person be detained and receive treatment in a treatment centre (a
level 1 detention and treatment order) if it appears to the
medical practitioner or authorised health professional, after examining the
person, that—
(a) the person has a mental illness; and
(b) because of the mental illness, the person requires treatment for the
person's own protection from harm (including harm involved in the continuation
or deterioration of the person's condition) or for the protection of others from
harm; and
(c) there is no less restrictive means than a detention and treatment
order of ensuring appropriate treatment of the person's illness.
(2) A level 1 detention and treatment order must be made in writing in the
form approved by the Minister.
(3) A level 1 detention and treatment order, unless earlier revoked,
expires at a time fixed in the order which must be 2 pm on a business day not
later than 7 days after the day on which it is made.
(4) On the making of a level 1 detention and treatment order, the
following provisions apply:
(a) the patient must be examined by a psychiatrist or authorised medical
practitioner, who must, if the order was made by a psychiatrist or authorised
medical practitioner, be a different psychiatrist or authorised medical
practitioner;
(b) the examination must occur within 24 hours of the making of the
order;
(c) if it is not practicable for the examination to occur within that
period, it must occur as soon as practicable thereafter;
(d) after completion of the examination, the psychiatrist or authorised
medical practitioner may confirm the level 1 detention and treatment order if
satisfied that the grounds referred to in subsection (1) exist for the
making of a level 1 detention and treatment order, but otherwise must revoke the
order.
(5) A medical practitioner or authorised health professional may form an
opinion about a person under subsection (1) or (4) based on his or her own
observations and any other available evidence that he or she considers reliable
and relevant (which may include evidence about matters occurring outside the
State).
(6) A psychiatrist or authorised medical practitioner who has examined a
patient to whom a level 1 detention and treatment order applies may revoke the
order at any time.
Note—
A psychiatrist or authorised medical practitioner who revokes a level 1
detention and treatment order may, in substitution, make a level 1 community
treatment order under Part 4 Division 1.
(7) Confirmation or revocation of a level 1 detention and treatment order
must be effected by written notice in the form approved by the
Minister.
22—Board and Chief
Psychiatrist to be notified of level 1 orders or their
revocation
(1) A psychiatrist or authorised medical practitioner making, confirming
or revoking a level 1 detention and treatment order must ensure that the Board
and the Chief Psychiatrist are each sent or given, within 1 business day, a
written notice in the form approved by the Minister.
(2) The Registrar of the Board must, within 1 business day, by written
notice sent or given to the psychiatrist or authorised medical practitioner,
acknowledge receipt by the Board of a notice under
subsection (1).
(3) The Chief Psychiatrist must, within 1 business day, by written notice
sent or given to the psychiatrist or authorised medical practitioner,
acknowledge receipt by the Chief Psychiatrist of a notice under
subsection (1).
23—Copies of level
1 orders, notices and statements of rights to be given to patients
etc
(1) A medical practitioner or authorised health professional making a
level 1 detention and treatment order must ensure that the patient is given, as
soon as practicable, a copy of the order.
(2) A medical practitioner or authorised health professional making a
level 1 detention and treatment order must ensure that the patient is given, as
soon as practicable, a written statement in the form approved by the Minister (a
statement of rights)—
(a) informing the patient of his or her legal rights; and
(b) containing any other information prescribed by the
regulations.
(3) If a patient is unable to read or otherwise comprehend the statement
of rights, the medical practitioner or authorised health professional must
ensure that any steps that are practicable in the circumstances are taken to
convey the information contained in the statement to the patient.
(4) Subject to subsection (6), the director of a treatment centre in
which a patient is first detained under a level 1 detention and treatment order
must cause a copy of the order and statement of rights to be sent or given to a
guardian, medical agent, relative, carer or friend of the patient as soon as
practicable.
(5) If a level 1 detention and treatment order is revoked, the director of
the treatment centre in which the patient is detained must—
(a) ensure that the patient is given, as soon as practicable, a copy of
the notice of revocation of the order; and
(b) subject to subsection (6), cause a copy of the notice of
revocation to be sent or given to a guardian, medical agent, relative, carer or
friend of the patient as soon as practicable.
(6) The following provisions apply for the purposes of
subsections (4) and (5)(b):
(a) the person to be sent or given a copy of the order and statement of
rights, or notice of revocation, must be—
(i) a guardian, medical agent, relative, carer or friend of the patient
nominated by the patient for the purpose; or
(ii) if that is not practicable or appropriate—a guardian, medical
agent, relative, carer or friend of the patient who appears to have or be
assuming responsibility for the care of the patient; or
(iii) if that is not practicable or appropriate—any other guardian,
medical agent, relative, carer or friend of the patient to whom it is
practicable and appropriate to send or give the copy of the order and statement,
or notice of revocation;
(b) the director is not required to send or give a copy of the order and
statement, or notice of revocation, to a person whose whereabouts are not known
to or readily ascertainable by the director;
(c) it is not appropriate for the director to send or give a copy of the
order and statement, or notice of revocation, to a particular person if the
director has reason to believe that it would be contrary to the patient's best
interests to do so.
24—Treatment of
patients to whom level 1 orders apply
(1) A patient to whom a level 1 detention and treatment order applies may
be given treatment for his or her mental illness or any other illness of a kind
authorised by a medical practitioner who has examined the patient.
(2) The treatment may be given despite the absence or refusal of consent
to the treatment.
(3) Nothing prevents the treatment of a patient to whom a level 1
detention and treatment order applies before confirmation of the order under
this Part.
(4) This section does not apply to prescribed psychiatric treatment, or to
prescribed treatment within the meaning of the Guardianship and
Administration Act 1993.
(5) If a medical practitioner authorises treatment of a patient to whom a
level 1 detention and treatment order applies that is treatment of a kind
prescribed by the regulations, the medical practitioner must ensure that the
Chief Psychiatrist is sent or given, within 1 business day, a written
notice in the form approved by the Minister.
Division
3—Level 2 detention and treatment orders
25—Level 2
detention and treatment orders
(1) If a level 1 detention and treatment order has been made or confirmed
by a psychiatrist or authorised medical practitioner under Division 2, a
psychiatrist or authorised medical practitioner may, after further examination
of the patient carried out before the order expires, make a further order for
the detention and treatment of the patient (a level 2 detention and
treatment order).
(2) A psychiatrist or authorised medical practitioner may make a level 2
detention and treatment order if satisfied that—
(a) the person has a mental illness; and
(b) because of the mental illness, the person requires treatment for the
person's own protection from harm (including harm involved in the continuation
or deterioration of the person's condition) or for the protection of others from
harm; and
(c) there is no less restrictive means than a detention and treatment
order of ensuring appropriate treatment of the person's illness.
(3) A psychiatrist or authorised medical practitioner may form an opinion
about a person under subsection (2) based on his or her own observations
and any other available evidence that he or she considers reliable and relevant
(which may include evidence about matters occurring outside the
State).
(4) A level 2 detention and treatment order must be made in writing in the
form approved by the Minister.
(5) A level 2 detention and treatment order, unless earlier revoked,
expires at a time fixed in the order which must be 2 pm on a business day not
later than 42 days after the day on which it is made.
(6) Detention under a level 2 detention and treatment order may only be in
an approved treatment centre (that is, not in a limited treatment
centre).
(7) A psychiatrist or authorised medical practitioner who has examined a
patient to whom a level 2 detention and treatment order applies may revoke the
order at any time.
Note—
A psychiatrist or authorised medical practitioner who revokes a level 2
detention and treatment order may, in substitution, make a level 1 community
treatment order under Part 4 Division 1.
(8) Revocation of a level 2 detention and treatment order must be effected
by written notice in the form approved by the Minister.
26—Notices and
reports relating to level 2 orders
(1) A psychiatrist or authorised medical practitioner making or revoking a
level 2 detention and treatment order must ensure that the Board and the Chief
Psychiatrist are each sent or given, within 1 business day, a written notice in
the form approved by the Minister.
(2) The Registrar of the Board must, within 1 business day, by written
notice sent or given to the psychiatrist or authorised medical practitioner,
acknowledge receipt by the Board of a notice under
subsection (1).
(3) The Chief Psychiatrist must, within 1 business day, by written notice
sent or given to the psychiatrist or authorised medical practitioner,
acknowledge receipt by the Chief Psychiatrist of a notice under
subsection (1).
(4) A psychiatrist or authorised medical practitioner making a level 2
detention and treatment order must, as soon as practicable, provide to the
director of the approved treatment centre in which the patient is or is to be
detained under the order a written report of the results of his or her
examination of the patient and of the reasons for making the order.
(5) On receiving a report under subsection (4), the director must
forward a copy of the report to the Board.
27—Copies of level
2 orders and notices to be given to patients etc
(1) A psychiatrist or authorised medical practitioner making a level 2
detention and treatment order must ensure that the patient is given, as soon as
practicable, a copy of the order.
(2) A psychiatrist or authorised medical practitioner making a level 2
detention and treatment order must ensure that the patient is given, as soon as
practicable, a written statement in the form approved by the Minister (a
statement of rights)—
(a) informing the patient of his or her legal rights; and
(b) containing any other information prescribed by the
regulations.
(3) If a patient is unable to read or otherwise comprehend the statement
of rights, the psychiatrist or authorised medical practitioner must ensure that
any steps that are practicable in the circumstances are taken to convey the
information contained in the statement to the patient.
(4) Subject to subsection (6), the director of a treatment centre in
which a patient is first detained under a level 2 detention and treatment order
must cause a copy of the order and statement of rights to be sent or given to a
guardian, medical agent, relative, carer or friend of the patient as soon as
practicable.
(5) If a level 2 detention and treatment order is revoked, the director of
the treatment centre in which the patient is detained must—
(a) ensure that the patient is given, as soon as practicable, a copy of
the notice of revocation of the order; and
(b) subject to subsection (6), cause a copy of the notice of
revocation to be sent or given to a guardian, medical agent, relative, carer or
friend of the patient as soon as practicable.
(6) The following provisions apply for the purposes of
subsections (4) and (5)(b):
(a) the person to be sent or given a copy of the order and statement of
rights, or notice of revocation must be—
(i) a guardian, medical agent, relative, carer or friend of the patient
nominated by the patient for the purpose; or
(ii) if that is not practicable or appropriate—a guardian, medical
agent, relative, carer or friend of the patient who appears to have or be
assuming responsibility for the care of the patient; or
(iii) if that is not practicable or appropriate—any other guardian,
medical agent, relative, carer or friend of the patient to whom it is
practicable and appropriate to send or give the copy of the order and statement,
or notice of revocation;
(b) the director is not required to send or give a copy of the order and
statement, or notice of revocation, to a person whose whereabouts are not known
to or readily ascertainable by the director;
(c) it is not appropriate for the director to send or give a copy of the
order and statement, or notice of revocation, to a particular person if the
director has reason to believe that it would be contrary to the patient's best
interests to do so.
28—Treatment of
patients to whom level 2 orders apply
(1) A patient to whom a level 2 detention and treatment order applies may
be given treatment for his or her mental illness or any other illness of a kind
authorised by a medical practitioner who has examined the patient.
(2) The treatment may be given despite the absence or refusal of consent
to the treatment.
(3) This section does not apply to prescribed psychiatric treatment, or to
prescribed treatment within the meaning of the Guardianship and
Administration Act 1993.
(4) If a medical practitioner authorises treatment of a patient to whom a
level 2 detention and treatment order applies that is treatment of a kind
prescribed by the regulations, the medical practitioner must ensure that the
Chief Psychiatrist is sent or given, within 1 business day, a written
notice in the form approved by the Minister.
Note—
Under Part 6, the treatment and care of a patient to whom a level 2
detention and treatment order treatment order applies is to be governed by a
treatment and care plan.
Division
4—Level 3 detention and treatment orders
29—Level
3 detention and treatment orders
(1) If the Board is satisfied that—
(a) a person has a mental illness; and
(b) because of the mental illness, the person requires treatment for the
person's own protection from harm (including harm involved in the continuation
or deterioration of the person's condition) or for the protection of others from
harm; and
(c) there is no less restrictive means than a detention and treatment
order of ensuring appropriate treatment of the person's illness,
the Board may make an order that the person be detained and receive
treatment in an approved treatment centre (a level 3 detention and
treatment order).
(2) A level 3 detention and treatment order may be made, on application,
in respect of a person to whom a level 2 or level 3 detention and treatment
order applies.
(3) An application may be made for the Board to make a level 3 detention
and treatment order in respect of a person by the Public Advocate, the director
of an approved treatment centre or an employee in an approved treatment centre
authorised by the director of the centre for the purpose.
(4) A level 3 detention and treatment order, unless earlier revoked,
expires at a time fixed in the order which must be—
(a) in the case of an order relating to a child—2 pm on a business
day not later than 6 calendar months after the day on which it is made;
or
(b) in any other case—2 pm on a business day not later than 12
calendar months after the day on which it is made.
(5) The Board may, on application, by order, vary or revoke a level 3
detention and treatment order at any time.
(6) An application for variation or revocation of a level 3 detention and
treatment order may be made by—
(a) the patient; or
(b) the Public Advocate; or
(c) a medical practitioner; or
(d) a mental health clinician; or
(e) a guardian, medical agent, relative, carer or friend of the patient;
or
(f) any other person who satisfies the Board that he or she has a proper
interest in the welfare of the patient.
Note—
If the Board revokes a level 3 detention and treatment order, it may, in
substitution, make a level 2 community treatment order under Part 4 Division
2.
30—Chief
Psychiatrist to be notified of level 3 orders or their variation or
revocation
The Registrar of the Board must ensure that the Chief Psychiatrist is
notified, within 1 business day, of the making, variation or revocation of
a level 3 detention and treatment order by the Board.
31—Treatment of
patients to whom level 3 orders apply
(1) A patient to whom a level 3 detention and treatment order applies may
be given treatment for his or her mental illness or any other illness of a kind
authorised by a medical practitioner who has examined the patient.
(2) Treatment may be given under this section despite the absence or
refusal of consent to the treatment.
(3) This section does not apply to prescribed psychiatric treatment, or to
prescribed treatment within the meaning of the Guardianship and
Administration Act 1993.
(4) If a medical practitioner authorises treatment of a patient to whom a
level 3 detention and treatment order applies that is treatment of a kind
prescribed by the regulations, the medical practitioner must ensure that the
Chief Psychiatrist is sent or given, within 1 business day, a written
notice in the form approved by the Minister.
Note—
Under Part 6, the treatment and care of a patient to whom a level 2 or
level 3 detention and treatment order treatment order applies is to be governed
by a treatment and care plan.
32—Detention and
treatment orders displace community treatment orders
If a detention and treatment order is made in respect of a person to whom a
community treatment order applies and the community treatment order is not
revoked, the requirements of the community treatment order do not apply for the
period of operation of the detention and treatment order (and if the community
treatment order remains in force at the end of that period, the requirements of
the order will apply again according to their terms).
33—Duty of
director of treatment centre to comply with detention and treatment
orders
(1) This section applies when—
(a) a person to whom a detention and treatment order applies is in the
care and control of treatment centre staff; or
(b) a detention and treatment order is made in respect of a voluntary
patient in a treatment centre.
(2) Subject to section 35, the director of the treatment centre
must—
(a) if the person is not already admitted to the centre, admit the person
to the centre; and
(b) comply with the detention and treatment order.
Note—
The treatment centre must, in the case of a patient to whom a level 2 or
level 3 detention and treatment order applies, be an approved
treatment centre (not a limited treatment centre).
34—Powers
required for carrying detention and treatment orders into
effect
(1) Treatment centre staff may exercise, in relation to a patient to whom
a detention and treatment order applies who is present at, or has been admitted
to, the centre, any power (including the power to use reasonable force) that is
reasonably required—
(a) for carrying the order into effect; or
(b) for the maintenance of order and security at the centre or the
prevention of harm or nuisance to others.
(2) Subsection (1) has effect subject to the other provisions of this
Act and, in the case of staff other than the director, subject to the directions
of the director.
35—Transfer
of patients to whom detention and treatment orders apply
(1) If the director of a treatment centre considers it is necessary or
appropriate for a patient to whom a detention and treatment order applies to be
transferred from the centre to another treatment centre, the director may give a
direction for the patient to be transferred to the other treatment centre, after
first arranging with the director of the other centre for the patient's
admission to that centre.
Note—
The other treatment centre must, in the case of a patient to whom a level 2
or level 3 detention and treatment order applies, be an approved treatment
centre (not a limited treatment centre).
(2) The director of a treatment centre in which a patient has been
detained may give a direction—
(a) for the patient to be transferred to a hospital, or between hospitals,
in circumstances where the patient has or has had an illness other than a mental
illness, after first arranging with the person in charge of the relevant
hospital for the patient's admission to the hospital; and
(b) for the patient's transfer back to the treatment centre after
completion of the hospital treatment.
(3) If a patient to whom a detention and treatment order applies has been
transferred to a hospital as a result of a direction under this
section—
(a) the patient is, while in the care and control of staff of the hospital
to be taken to continue in the care and control of the treatment centre staff;
and
(b) staff of the hospital may exercise the powers conferred by
section 34 in relation to the patient as if they were treatment centre
staff.
(4) A direction under this section must be given by writing in the form
approved by the Minister.
(5) Subject to subsection (6), if the patient has been admitted to
the centre, the director must notify a guardian, medical agent, relative, carer
or friend of the patient on giving a direction under this section for the
transfer of the patient from the centre.
(6) The following provisions apply for the purposes of
subsection (5):
(a) the notification must be given by writing in the form approved by the
Minister;
(b) the person to be notified must be—
(i) a guardian, medical agent, relative, carer or friend of the patient
nominated by the patient for the purpose; or
(ii) if that is not practicable or appropriate—a guardian, medical
agent, relative, carer or friend of the patient who appears to have or be
assuming responsibility for the care of the patient; or
(iii) if that is not practicable or appropriate—any other guardian,
medical agent, relative, carer or friend of the patient whom it is practicable
and appropriate to notify;
(c) the director is not required to notify a person whose whereabouts are
not known to or readily ascertainable by the director;
(d) it is not appropriate for the director to notify a particular person
if the director has reason to believe that it would be contrary to the patient's
best interests to do so.
36—Leave of
absence of patients detained under detention and treatment
orders
(1) The director of a treatment centre may, by written notice in the form
approved by the Minister, grant a patient detained in the centre leave of
absence from the centre for any purpose and period that the director considers
appropriate and specifies in the notice.
(2) Leave of absence may be granted subject to any conditions that the
director considers appropriate and specifies in the notice.
(3) The director must ensure that the patient is given a copy of the
notice by which the patient is granted leave of absence before the patient
commences the leave.
37—Persons granted
leave of absence to be given statement of rights
(1) The director of a treatment centre who grants a patient detained in
the centre leave of absence from the centre must ensure that the patient is
given, before the patient commences the leave, a written statement in the form
approved by the Minister (a statement of rights)—
(a) informing the patient of his or her legal rights; and
(b) containing any other information prescribed by the
regulations.
(2) If the patient is unable to read or otherwise comprehend the statement
of rights, the director must take any steps that are practicable in the
circumstances to convey the information contained in the statement to the
patient.
(3) Subject to subsection (4), the director must cause a copy of the
statement of rights to be sent or given to a guardian, medical agent, relative,
carer or friend of the patient as soon as practicable.
(4) The following provisions apply for the purposes of
subsection (3):
(a) the person to be sent or given a copy of the statement of rights must
be—
(i) a guardian, medical agent, relative, carer or friend of the patient
nominated by the patient for the purpose; or
(ii) if that is not practicable or appropriate—a guardian, medical
agent, relative, carer or friend of the patient who appears to have or be
assuming responsibility for the care of the patient; or
(iii) if that is not practicable or appropriate—any other guardian,
medical agent, relative, carer or friend of the patient to whom it is
practicable and appropriate to send or give a copy of the statement;
(b) the director is not required to send or give a copy of the statement
to a person whose whereabouts are not known to or readily ascertainable by the
director;
(c) it is not appropriate for the director to send or give a copy of the
statement to a particular person if the director has reason to believe that it
would be contrary to the patient's best interests to do so.
38—Cancellation of
leave of absence
(1) The director of a treatment centre may, by notice in the form approved
by the Minister, cancel any leave of absence from the centre granted to a
patient under this Division.
(2) The director has an absolute discretion to cancel any such
leave.
(3) The director must cause reasonable steps to be taken for the notice of
cancellation to be given to the patient before, or as soon as practicable after,
the patient is taken back into the care and control of treatment centre
staff.
Part
6—Treatment and care plans
39—Treatment and
care plans for voluntary patients
(1) The treatment and care of a voluntary patient in a treatment centre
must, as far as practicable, be governed by a treatment and care plan directed
towards the patient's recovery.
(2) The treatment and care plan—
(a) must describe the treatment and care that will be provided to the
patient at the treatment centre and should describe any rehabilitation services
and other significant services that will be provided or available to the patient
at the treatment centre or following the person's discharge from the centre;
and
(b) must, as far as practicable, be prepared and revised in consultation
with the patient and any guardian, medical agent, relative, carer or friend of
the patient who is providing support to the patient under this Act;
and
(c) must comply with the requirements of the regulations as to the making
or contents of such plans.
40—Treatment and
care plans for patients to whom community treatment orders
apply
(1) The treatment and care of a patient to whom a level 2 community
treatment order applies must, as far as practicable, be governed by a treatment
and care plan directed towards the patient's recovery.
(2) The treatment and care plan—
(a) must describe the treatment and care that will be provided to the
patient under the requirements of the order and should describe any
rehabilitation services and other significant services that will be provided or
available to the patient whether under the requirements of the order or through
the patient's voluntary participation; and
(b) must, as far as practicable, be prepared and revised in consultation
with the patient and any guardian, medical agent, relative, carer or friend of
the patient who is providing support to the patient under this Act;
and
(c) must comply with the requirements of the regulations as to the making
or contents of such plans.
41—Treatment and
care plans for patients to whom detention and treatment orders
apply
(1) The treatment and care of a patient to whom a level 2 or level 3
detention and treatment order applies must, as far as practicable, be governed
by a treatment and care plan directed towards the patient's recovery.
(2) The treatment and care plan—
(a) must describe the treatment and care that will be provided to the
patient while in detention at the approved treatment centre and should describe
any rehabilitation services and other significant services that will be provided
or available to the patient while in detention at the treatment centre or
following the person's discharge from the centre; and
(b) must, as far as practicable, be prepared and revised in consultation
with the patient and any guardian, medical agent, relative, carer or friend of
the patient who is providing support to the patient under this Act;
and
(c) must comply with the requirements of the regulations as to the making
or contents of such plans.
Part 7—Regulation
of prescribed psychiatric treatments
(1) Subject to this section, but despite any other Act or law, ECT must
not be administered to a patient unless—
(a) the patient has a mental illness; and
(b) ECT, or a course of ECT, has been authorised for treatment of the
illness by a psychiatrist who has examined the patient; and
(c) written consent to the treatment has been given—
(i) by or on behalf of the patient; or
(ii) if the patient is under 16 years of age or consent cannot be given by
or on behalf of the patient—by the Board on application under this
section.
(2) Consent to a course of ECT must be limited to a maximum of 12 episodes
of ECT and a maximum period of 3 months, and any second or subsequent course of
ECT for a patient must be separately consented to after the commencement or
completion of the preceding course.
(3) ECT administered to a patient in order to determine the correct dose
for future episodes of ECT in a course of treatment must be counted as a single
episode of ECT in that course of treatment for the purposes of this
section.
(4) Consent to the administration of ECT extends to the administration of
anaesthetics required for the purposes of the ECT treatment.
(5) An application for the Board's consent under this section may be made
by a medical practitioner or mental health clinician.
(6) Consent to a particular episode of ECT is not required if a
psychiatrist considers that—
(a) the patient has a mental illness of such a nature that administration
of that particular episode of ECT is urgently needed for the patient's
well-being; and
(b) in the circumstances it is not practicable to obtain that
consent.
(7) A psychiatrist who administers or authorises the administration of an
episode of ECT to a patient without consent in reliance on subsection (6)
must ensure that the Chief Psychiatrist is sent or given, within
1 business day, a written notice in the form approved by the
Minister—
(a) advising the Chief Psychiatrist of that action; and
(b) containing any other information prescribed by the
regulations.
(8) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: $20 000 or 4 years imprisonment.
(9) In this section—
(a) a reference to consent to treatment on behalf of a patient is a
reference to effective consent given by a medical agent or guardian of the
patient, or if the patient is under 16 years of age, a parent of the
patient;
(b) a reference to an episode of ECT is a reference to a period during
which ECT stimuli are administered under a continuing general
anaesthetic.
Division
2—Neurosurgery for mental illness
43—Neurosurgery
for mental illness
(1) Despite any other Act or law, neurosurgery must not be carried out on
a patient as a treatment for mental illness unless—
(a) the patient has a mental illness; and
(b) the neurosurgery has been authorised for treatment of the illness by
the person who is to carry it out and by 2 psychiatrists (at least 1 of whom is
a senior psychiatrist), each of whom has separately examined the patient;
and
(c) the patient is of or over 16 years of age and written consent to the
treatment has been given—
(i) by the patient; or
(ii) if consent cannot be given by the patient—by the Board on
application under this section.
(2) An application for the Board's consent under this section may be made
by a medical practitioner or mental health clinician.
(3) A person who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: $20 000 or 4 years imprisonment.
Division 3—Other
prescribed psychiatric treatments
44—Other
prescribed psychiatric treatments
(1) The regulations may regulate the administration of any prescribed
psychiatric treatment (other than ECT or neurosurgery) by imposing requirements
for prior authorisations or consents (or both).
(2) Any requirements of the regulations for prior authorisations or
consents (or both) for a treatment of mental illness will have effect despite
the provisions of any other Act or law.
(3) The regulations may impose a maximum penalty of $20 000 or 4 years
imprisonment (or some lesser maximum penalty) for administering a treatment of
mental illness without a prior authorisation or consent required under the
regulations.
Part 8—Further
protections for persons with mental illness
(1) If—
(a) a medical practitioner or authorised health professional intends to
conduct an examination of a person for the purposes of this Act; and
(b) the person is unable to communicate adequately in English but could
communicate adequately with the assistance of an interpreter,
the medical practitioner or authorised health professional must arrange for
a competent interpreter to assist during the examination of the
person.
(2) Subsection (1) does not apply—
(a) to an examination following which a level 1 community treatment order
or level 1 detention and treatment order may be made unless the assistance of an
interpreter can be readily arranged by the medical practitioner or authorised
health professional in the circumstances; or
(b) if the medical practitioner or authorised health professional and the
person can communicate adequately in a language other than English.
46—Copies of Board
orders, decisions and statements of rights to be given
(1) The Registrar of the Board must ensure that a patient is given, as
soon as practicable after the making by the Board of an order or decision under
this Act in respect of the patient—
(a) a copy of the order or decision; and
(b) a written statement in the form approved by the Minister (a
statement of rights)—
(i) informing the patient of his or her legal rights; and
(ii) containing any other information prescribed by the
regulations.
(2) If the patient is unable to read or otherwise comprehend the statement
of rights, the Registrar of the Board must ensure that any steps are taken that
are practicable in the circumstances to convey the information contained in the
statement to the patient.
(3) Subject to subsection (4), the Registrar of the Board must ensure
that a copy of the order or decision and the statement of rights are sent or
given to a guardian, medical agent, relative, carer or friend of the patient as
soon as practicable.
(4) The following provisions apply for the purposes of
subsection (3):
(a) the person to be sent or given a copy of the order or decision and the
statement of rights must be—
(i) a guardian, medical agent, relative, carer or friend of the patient
nominated by the patient for the purpose; or
(ii) if that is not practicable or appropriate—a guardian, medical
agent, relative, carer or friend of the patient who appears to have or be
assuming responsibility for the care of the patient; or
(iii) if that is not practicable or appropriate—any other guardian,
medical agent, relative, carer or friend of the patient to whom it is
practicable and appropriate to send or give a copy of the order or decision and
the statement;
(b) there is no requirement for a copy of the order or decision and the
statement to be sent or given to a person whose whereabouts are not known to or
readily ascertainable by the Registrar of the Board;
(c) it is not appropriate for a copy of the order or decision and the
statement to be sent or given to a particular person if there is reason to
believe that it would be contrary to the patient's best interests to do
so.
47—Patients' right
to be supported by guardian etc
(1) A patient is entitled to have another person's support, wherever
practicable, in—
(a) the exercise of a right under this Act; or
(b) any communications between the patient and a medical practitioner
examining or treating the patient or between the patient and the director or
staff of a treatment centre in which the patient is treated or
detained.
(2) The support may be provided by—
(a) if the patient is a child—a parent or guardian of the patient;
or
(b) a guardian, medical agent, relative, carer or friend of the patient
who has been nominated by the patient for the purpose or who has or is assuming
responsibility for the care of the patient; or
(c) a person who provides advocacy services whether on a professional or
voluntary basis; or
(d) a person made available under a community visitor scheme established
under the regulations.
(3) A person providing support to a patient under this section must be
allowed access to the patient subject to reasonable limits imposed by the
medical practitioner in charge of the patient's treatment or by the director or
staff of a treatment centre in which the patient is treated or
detained.
(4) However, a person providing support to a patient may be allowed to be
present during a medical examination or treatment of the patient or may be
excluded according to the discretion of the medical practitioner performing or
supervising the examination or treatment.
(5) This section is in addition to and does not derogate from the
operation of section 4 (which entitles a parent or guardian of a child
under 16 years of age to exercise rights conferred under this Act on behalf
of the child).
48—Patients' right
to communicate with others outside treatment centre
(1) A patient in a treatment centre is entitled to—
(a) communicate with persons outside the centre; and
(b) receive visitors at the centre; and
(c) be afforded reasonable privacy in his or her communications with
others.
(2) The rights conferred by subsection (1) are subject to any
restrictions and conditions that have been approved by the Director of the
centre as being reasonably required—
(a) for carrying into effect any detention and treatment order that
applies to the patient; or
(b) for the maintenance of order and security at the centre or the
prevention of harm or nuisance to others.
(3) No restrictions or conditions are to be applied under this section to
communications by post between a patient in a treatment centre and any of the
following, or to visits to a patient by any of the following:
(a) the Minister;
(b) the Board;
(c) the Public Advocate;
(d) the Chief Psychiatrist;
(e) the Health and Community Services Complaints Commissioner within the
meaning of the Health and Community Services Complaints
Act 2004;
(f) a member of Parliament;
(g) a legal practitioner (in the practitioner's professional
capacity);
(h) a person representing, or acting on behalf of, a person or body
referred to in any of the preceding paragraphs;
(i) a person of a class prescribed by the regulations.
A person having the oversight, care or control of a patient who ill-treats
or wilfully neglects the patient is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
Part
9—Powers relating to persons who have or appear to have mental
illness
50—Issuing
of patient transport requests
(1) A patient transport request may be issued in respect of a patient as
follows:
(a) if a community treatment order applies to the patient and the patient
has not complied with the requirements of the order, a medical practitioner or
mental health clinician may issue the request for the purpose of the patient's
transport for treatment in accordance with the order;
(b) if a medical practitioner or authorised health professional has made a
level 1 detention and treatment order in respect of the patient at a place other
than a treatment centre, the medical practitioner or authorised health
professional may issue the request for the purpose of the patient's transport to
a treatment centre;
(c) if the patient is a patient at large, the director of a treatment
centre, a medical practitioner or mental health clinician may issue the request
for the purpose of the patient's transport to a treatment centre;
(d) if a detention and treatment order applies to the patient and the
director of a treatment centre has given a direction for the transfer of the
patient under Part 5 Division 5 to another treatment centre or hospital, the
director may issue the request for the purpose of the patient's transport to the
other treatment centre or hospital.
(2) A patient transport request must be—
(a) directed to authorised officers and police officers generally;
and
(b) in writing in the form approved by the Minister.
(3) A person in respect of whom a patient transport request has been
issued who is taken into the care and control of an authorised officer or police
officer under this Part must be given a copy of the patient transport request as
soon as practicable.
51—Powers
of authorised officers relating to persons who have or appear to have mental
illness
(1) This section applies to a person if—
(a) an authorised officer believes on reasonable grounds that the person
is a patient in respect of whom a patient transport request has been issued
under section 50(1); or
(b) an authorised officer believes on reasonable grounds that the person
is a patient at large; or
(c) it appears to an authorised officer that—
(i) the person has a mental illness; and
(ii) the person has caused, or there is a significant risk of the person
causing, harm to himself or herself or others or property or the person
otherwise requires medical examination.
(2) An authorised officer may form an opinion about a person under
subsection (1)(c) based on the officer's observations of the person's
behaviour or appearance or reports about the person's behaviour, appearance or
history (which may include reports about matters occurring outside the
State).
(3) An authorised officer may, subject to this section, exercise the
following powers in relation to a person to whom this section applies:
(a) the authorised officer may take the person into his or her care and
control;
(b) the authorised officer may transport the person from place to
place;
(c) the authorised officer may restrain the person and otherwise use force
in relation to the person as reasonably required in the circumstances;
(d) the authorised officer may restrain the person by means of the
administration of a drug when that is reasonably required in the
circumstances;
(e) the authorised officer may enter and remain in a place where the
authorised officer reasonably suspects the person may be found;
(f) the authorised officer may search the person's clothing or possessions
and take possession of anything in the person's possession that the person may
use to cause harm to himself or herself or others or property.
(4) An authorised officer who takes the person into his or her care and
control must, as soon as practicable—
(a) in the case of a person referred to in
subsection (1)(a)—transport the person, or arrange for the person to
be transported by some other authorised officer or by a police officer, in
accordance with the patient transport request; or
(b) in the case of a person referred to in
subsection (1)(b)—transport the person, or arrange for the person to
be transported by some other authorised officer or by a police officer, to a
treatment centre; or
(c) in the case of a person referred to in
subsection (1)(c)—transport the person, or arrange for the person to
be transported by some other authorised officer or by a police officer, to a
treatment centre or other place for medical examination.
(5) The powers conferred by this section continue to be exercisable as
reasonably required for the purpose of enabling or facilitating the medical
examination or treatment of the person.
(6) An authorised officer may not administer a drug to restrain a person
under this section unless the officer is authorised to do so under the
Controlled Substances Act 1984.
(7) A search of a person must be carried out expeditiously and in a manner
that avoids, as far as reasonably practicable, causing the person any
humiliation or offence.
(8) Anything taken into the possession of an authorised officer under this
section may be held for as long as is necessary for reasons of safety, but must
otherwise be returned to the person from whom it was taken or dealt with
according to law.
52—Powers
of police officers relating to persons who have or appear to have mental
illness
(1) This section applies to a person if—
(a) a police officer believes on reasonable grounds that the person is a
patient in respect of whom a patient transport request has been issued under
section 50(1); or
(b) a police officer believes on reasonable grounds that the person is a
patient at large; or
(c) it appears to a police officer that—
(i) the person has a mental illness; and
(ii) the person has caused, or there is a significant risk of the person
causing, harm to himself or herself or others or property; and
(iii) the person requires medical examination.
(2) This section does not apply to a patient in respect of whom a patient
transport request has been issued by the director of a treatment centre under
section 50(1)(d) unless the person has subsequently become a patient at
large.
(3) A police officer is not required to exercise any medical expertise in
order to form an opinion about a person under subsection (1)(c) and may
form such an opinion based on the officer's observations of the person's
behaviour or appearance or reports about the person's behaviour, appearance or
history (which may include reports about matters occurring outside the
State).
(4) A police officer may, subject to this section, exercise the following
powers in relation to a person to whom this section applies:
(a) the police officer may take the person into his or her care and
control;
(b) the police officer may transport the person from place to
place;
(c) the police officer may restrain the person and otherwise use force in
relation to the person as reasonably required in the circumstances;
(d) the police officer may enter and remain in a place where the officer
reasonably suspects the person may be found;
(e) the police officer may use reasonable force to break into a place when
that is reasonably required in order to take the person into his or her care and
control;
(f) the police officer may search the person's clothing or possessions and
take possession of anything in the person's possession that the person may use
to cause harm to himself or herself or others or property.
(5) A police officer who takes the person into his or her care and control
must, as soon as practicable—
(a) in the case of a person referred to in
subsection (1)(a)—transport the person, or arrange for the person to
be transported by some other police officer or by an authorised officer, in
accordance with the patient transport request; or
(b) in the case of a person referred to in
subsection (1)(b)—transport the person, or arrange for the person to
be transported by some other police officer or by an authorised officer, to a
treatment centre; or
(c) in the case of a person referred to in
subsection (1)(c)—transport the person, or arrange for the person to
be transported by some other police officer or by an authorised officer, to a
treatment centre or other place for medical examination.
(6) The powers conferred by this section continue to be exercisable as
reasonably required for the purpose of enabling or facilitating the medical
examination or treatment of the person.
(7) A search of a person must be carried out expeditiously and in a manner
that avoids, as far as reasonably practicable, causing the person any
humiliation or offence.
(8) Anything taken into the possession of a police officer under this
section may be held for as long as is necessary for reasons of safety, but must
otherwise be returned to the person from whom it was taken or dealt with
according to law.
(9) If a police officer has arrested a person for an offence or
apprehended a person under some other law, the person may, despite any other
law, be released from police custody for the purpose of medical examination or
treatment under this Act.
(10) If a person who has been arrested for an offence is released from
police custody for the purpose of medical examination or treatment under this
Act—
(a) the Commissioner of Police must be notified in accordance with the
regulations of the action taken under this Act in relation to the person;
and
(b) the person must, at the request of the Commissioner of Police, be held
and returned to police custody in the event that a detention and treatment order
is not made in respect of the person or ceases to apply to the person.
53—Officers may
assist each other
Authorised officers and police officers may assist each other in the
exercise of powers under this Act.
(1) The Minister may approve a memorandum of understanding between
relevant agencies relating to the respective roles of authorised officers
(including different classes of authorised officers) and police officers
in—
(a) the exercise of powers relating to persons who have or appear to have
mental illness; and
(b) the provision of other assistance to enable or facilitate the medical
examination or treatment of such persons.
(2) The Minister may only approve a memorandum of understanding with the
agreement of the Minister responsible for the administration of the Police
Act 1998.
(3) Authorised officers, police officers and other persons engaged in the
administration of this Act should endeavour to comply with the provisions of a
memorandum of understanding approved under this section.
(4) Nothing in this section is to affect the lawfulness of any action
taken by an authorised officer or police officer in the exercise of powers under
this Act.
55—Offence
to hinder etc officer
A person who hinders or obstructs an authorised officer or police officer
in the exercise of powers under this Act is guilty of an offence.
Maximum penalty: $10 000.
Part
10—Arrangements between South Australia and other
jurisdictions
In this Part—
corresponding law means a law of another State or a Territory
of the Commonwealth declared by the regulations to be a corresponding
law;
interstate authorised officer means a person on whom power is
conferred under a corresponding law to take a person who has a mental illness
into his or her care and control;
interstate community treatment order means an order made
under a corresponding law for the purpose of bringing about the treatment of a
person who has a mental illness without a requirement for the person's detention
in an interstate treatment centre;
interstate detention and treatment order means an order made
under a corresponding law for the purpose of bringing about the detention and
treatment in an interstate treatment centre of a person who has a mental
illness;
interstate officer means a person on whom any power is
conferred under a corresponding law;
interstate patient at large means a person to whom an
interstate detention and treatment order applies who is absent from an
interstate treatment centre in which he or she was being detained, or is
otherwise at large, without lawful authority under the relevant corresponding
law;
interstate treatment centre means a hospital or other
facility in which a person may be detained and treated under an interstate
detention and treatment order, or a place at which a person to whom an
interstate community treatment order applies may be required to be treated under
the order;
Ministerial agreement means an agreement made under
section 57 or an agreement declared under that section to have effect as a
Ministerial agreement for the purposes of this Part;
South Australian authorised officer means an authorised
officer under this Act or a member of South Australia Police under the Police
Act 1998;
South Australian community treatment order means a community
treatment order under Part 4;
South Australian detention and treatment order means a
detention and treatment order under Part 5;
South Australian officer means a person on whom any power is
conferred under this Act;
South Australian treatment centre means a treatment centre
under Part 12.
(1) The Minister may make an agreement with a Minister responsible for
administering a corresponding law about any matter in connection with the
administration of this Part or a corresponding law.
(2) The Minister may, by notice in the Gazette, declare that a specified
agreement made by a Minister before the commencement of this section will have
effect as a Ministerial agreement for the purposes of this Part.
58—Requests
or approvals relating to actions involving other
jurisdictions
(1) If a provision of this Part provides that this subsection applies to
the taking of specified action, such action must not be taken unless the
action—
(a) is contemplated by a Ministerial agreement with a Minister of the
other State or the Territory that would be affected by the action; and
(b) has been requested or approved by an interstate officer under the
corresponding law of the State or Territory, or under the Ministerial
agreement.
(2) The Chief Psychiatrist may request or approve action by an interstate
officer under the corresponding law of another State or a Territory that would
affect South Australia if—
(a) there is a Ministerial agreement with a Minister of the State or
Territory that contemplates such action; and
(b) the corresponding law or the Ministerial agreement provides that the
action must not be taken except at the request or with the approval of a South
Australian officer.
59—Powers of South
Australian officers under corresponding laws or Ministerial
agreement
Subject to this Act, a South Australian officer may exercise any power
conferred on the officer under a corresponding law or under a Ministerial
agreement.
60—Regulations may
modify operation of Part
The regulations may modify the operation of this Part for a purpose related
to its interaction with the law of another State or a Territory of the
Commonwealth relating to mental health.
Division
2—Community treatment orders
61—South
Australian community treatment orders and treatment in other
jurisdictions
(1) A South Australian community treatment order may be made or varied so
that the order requires the person to whom the order applies to submit to
treatment of the person's mental illness at an interstate treatment
centre.
(2) If a South Australian community treatment order requires treatment of
a person's mental illness at an interstate treatment centre and the person fails
to comply with the requirements of the order, the Chief Psychiatrist may issue a
patient transport request in respect of the person for the purpose of the
person's transport to the interstate treatment centre.
(3) Section 58(1) applies to the taking of action under
subsection (1) or (2).
(4) If a South Australian authorised officer or interstate authorised
officer believes on reasonable grounds that a person is the patient in respect
of whom a patient transport request has been issued under this section, the
officer may exercise the powers of an authorised officer under Part 9, or in the
case of a South Australian authorised officer who is a police officer, the
powers of a police officer under that Part, for the purpose of the person's
transport to an interstate treatment centre, and the provisions of that Part
(including section 55) will apply for the purpose with necessary
modifications.
62—Powers of
interstate officers
An interstate officer who is authorised to exercise powers under a
corresponding law in connection with an interstate community treatment order may
exercise those powers, other than any power of forcible entry, in South
Australia in connection with the order.
63—Interstate
community treatment orders and treatment in South Australia
If an interstate community treatment order is made or varied so that the
order requires the person to whom the order applies to submit to treatment of
the person's mental illness in South Australia, this Act applies as
if—
(a) a community treatment order were in force under this Act in respect of
the person requiring the person to submit to treatment of the person's mental
illness in South Australia in accordance with the terms of the interstate
community treatment order; and
(b) the community treatment order were to operate, despite the other
provisions of this Act, for the period of operation of the interstate community
treatment order.
64—Making
of South Australian community treatment orders when interstate orders
apply
(1) If an interstate community treatment order applies to a person who is
now in South Australia, the Chief Psychiatrist may, without medical examination
of the person, make an order for the treatment of the person's mental illness in
South Australia containing requirements based on the requirements of the
interstate community treatment order.
(2) The Chief Psychiatrist may make the order whether or not the person
resides in South Australia.
(3) If an order is made under subsection (1), this Act applies as if
the order were a level 1 community treatment order made by a psychiatrist or
authorised medical practitioner under Part 4 Division 1.
Division
3—Transfer to or from South Australian treatment
centres
65—Transfer from
South Australian treatment centres
(1) The director of a South Australian treatment centre may give a
direction for the transfer to an interstate treatment centre of a patient who is
detained in or a patient at large from the South Australian treatment centre if
the director is satisfied that the transfer is in the patient's best
interests.
(2) Section 58(1) applies to the giving of a direction under this
section.
(3) A direction under this section must be given by writing in the form
approved by the Minister.
(4) The director must—
(a) subject to subsection (5), notify a guardian, medical agent,
relative, carer or friend of the patient of the transfer of the patient to the
interstate treatment centre; and
(b) if the patient is detained in the South Australian treatment centre
under a level 3 detention and treatment order—notify the Board of the
transfer.
(5) The following provisions apply for the purposes of
subsection (4)(a):
(a) the person to be notified must be—
(i) a guardian, medical agent, relative, carer or friend of the patient
nominated by the patient for the purpose; or
(ii) if that is not practicable or appropriate—a guardian, medical
agent, relative, carer or friend of the patient who appears to have or be
assuming responsibility for the care of the patient; or
(iii) if that is not practicable or appropriate—any other guardian,
medical agent, relative, carer or friend of the patient whom it is practicable
and appropriate to notify;
(b) the director is not required to notify a person whose whereabouts are
not known to or readily ascertainable by the director;
(c) it is not appropriate for the director to notify a particular person
if the director has reason to believe that it would be contrary to the patient's
best interests to do so.
66—Transfer to
South Australian treatment centres
(1) The director of a South Australian treatment centre may approve the
transfer to the centre of a person to whom an interstate detention and treatment
order applies (including an interstate patient at large) if the director of the
South Australian treatment centre is satisfied that the transfer is in the
person's best interests.
(2) An approval under this section must be given by writing in the form
approved by the Minister.
(3) If an approval is given under this section for the transfer of a
person to a South Australian treatment centre, this Act applies as if a
level 1 detention and treatment order had been made under this Act in respect of
the person at the time of admission of the person to the South Australian
treatment centre.
(1) If the director of a South Australian treatment centre has given a
direction for the transfer of a person to an interstate treatment centre under
this Division, the director may issue a patient transport request for the
purpose of the person's transport to the interstate treatment centre.
(2) If the director of a South Australian treatment centre has given an
approval for the transfer of a person to the centre under this Division, the
director may issue a patient transport request for the purpose of the person's
transport to the centre.
(3) A patient transport request must be in writing in the form approved by
the Minister.
68—Powers when
patient transport request issued
If a South Australian authorised officer or interstate authorised officer
believes on reasonable grounds that a person is the person in respect of whom a
patient transport request has been issued under this Division, the officer may
exercise the powers of an authorised officer under Part 9, or in the case of a
South Australian authorised officer who is a police officer, the powers of a
police officer under that Part, for the purpose of the person's transport to an
interstate treatment centre or South Australian treatment centre, as the case
requires, and the provisions of that Part (including section 55) will apply
for the purpose with necessary modifications.
Division
4—Transport to other jurisdictions
69—Transport to
other jurisdictions when South Australian detention and treatment orders
apply
(1) If a South Australian detention and treatment order has been made in
respect of a person, the person making the order or a South Australian
authorised officer may, instead of transporting the person to a South Australian
treatment centre for admission to that centre—
(a) transport the person to an interstate treatment centre; or
(b) deliver the person into the care and control of an interstate
authorised officer (whether in or outside South Australia) for the purpose of
the person's transport to an interstate treatment centre.
(2) Section 58(1) applies to the taking of action under
subsection (1).
(3) A South Australian authorised officer or interstate authorised officer
may exercise the powers of an authorised officer under Part 9, or in the case of
a South Australian authorised officer who is a police officer, the powers of a
police officer under that Part, for the purpose of the person's transport to an
interstate treatment centre, and the provisions of that Part (including
section 55) will apply for the purpose with necessary
modifications.
70—Transport to
other jurisdictions of persons with apparent mental illness
(1) This section applies if a South Australian authorised officer has
taken into his or her care and control a person who appears to have a mental
illness and to require medical examination.
(2) The South Australian authorised officer may, instead of transporting
the person to a South Australian treatment centre or other place in South
Australia for medical examination—
(a) transport the person to an interstate treatment centre or an
interstate medical practitioner or interstate authorised health professional;
or
(b) deliver the person into the care and control of an interstate
authorised officer (whether in or outside South Australia) for the purpose of
the person's transport to an interstate treatment centre or an interstate
medical practitioner or interstate authorised health professional.
(3) Section 58(1) applies to the taking of action under
subsection (2).
(4) A South Australian authorised officer or interstate authorised officer
may exercise the powers of an authorised officer under Part 9, or in the case of
a South Australian authorised officer who is a police officer, the powers of a
police officer under that Part, for the purpose of the person's transport to an
interstate treatment centre or an interstate medical practitioner or interstate
authorised health professional, and the provisions of that Part (including
section 55) will apply for the purpose with necessary
modifications.
(5) In this section—
interstate authorised health professional means a person,
other than a medical practitioner, on whom power is conferred under a
corresponding law to make an interstate detention and treatment order in respect
of a person who has a mental illness.
71—Transport to
other jurisdictions when interstate detention and treatment orders
apply
(1) If a South Australian authorised officer believes on reasonable
grounds that a person in South Australia is an interstate patient at large, 1 or
more of the following powers may be exercised in relation to the
person:
(a) the person may be taken into the care and control of a
South Australian authorised officer;
(b) the person may be transported to an interstate treatment centre by a
South Australian authorised officer;
(c) the person may be delivered by a South Australian authorised officer
into the care and control of an interstate authorised officer (whether in or
outside South Australia) for the purpose of the person's transport to an
interstate treatment centre;
(d) the person may be taken to a South Australian treatment centre by a
South Australian authorised officer and detained there pending the person's
transport to an interstate treatment centre;
(e) the person may be given treatment for his or her mental illness or any
other illness in South Australia, without any requirement for the person's
consent, as authorised by a medical practitioner who has examined the
patient.
(2) Section 58(1) applies to the taking of action under
subsection (1)(b) or (c).
(3) Subsection (1)(e) does not apply to prescribed psychiatric
treatment, or to prescribed treatment within the meaning of the Guardianship
and Administration Act 1993.
(4) If an interstate authorised officer believes on reasonable grounds
that a person in South Australia is an interstate patient at large, the officer
may transport the person to an interstate treatment centre.
(5) A South Australian authorised officer or interstate authorised officer
may exercise the powers of an authorised officer under Part 9, or in the case of
a South Australian authorised officer who is a police officer, the powers of a
police officer under that Part, for the purpose of—
(a) the person's transport to a South Australian treatment centre or
interstate treatment centre; or
(b) enabling or facilitating medical treatment of the person,
and the provisions of that Part (including section 55) will apply for
the purpose with necessary modifications.
(6) This section does not prevent action being taken under Division 3 for
the transport of the person to a South Australian treatment centre if the
director of the South Australian treatment centre has given an approval
under that Division for the transfer of the person to the South Australian
treatment centre.
Division
5—Transport to South Australia
72—Transport to
South Australia when South Australian detention and treatment orders
apply
(1) If a South Australian authorised officer believes on reasonable
grounds that a person in the care and control of an interstate officer outside
South Australia is a South Australian patient at large, the officer may
transport the person to a South Australian treatment centre.
(2) Section 58(1) applies to the taking of action under
subsection (1).
(3) If an interstate authorised officer believes on reasonable grounds
that a person in the care and control of an interstate officer outside South
Australia is a South Australian patient at large, the officer
may—
(a) transport the person to a South Australian treatment centre;
or
(b) deliver the person into the care and control of a South Australian
authorised officer for the purpose of the person's transport to a South
Australian treatment centre.
(4) A South Australian authorised officer or interstate authorised officer
may exercise the powers of an authorised officer under Part 9, or in the case of
a South Australian authorised officer who is a police officer, the powers of a
police officer under that Part, for the purpose of the person's transport to a
South Australian treatment centre, and the provisions of that Part (including
section 55) will apply for the purpose with necessary
modifications.
(5) This section does not prevent action being taken under Division 3 for
the transport of the person to an interstate treatment centre if the director of
the South Australian treatment centre has given a direction under that Division
for the transfer of the person to the interstate treatment centre.
73—Transport to
South Australia of persons with apparent mental illness
(1) This section applies if—
(a) a person has been taken into the care and control of an interstate
officer under a corresponding law because of the person's apparent mental
illness; and
(b) instead of action being taken for medical examination of the person
under the corresponding law, the person is to be—
(i) transported to a South Australian treatment centre or other place in
South Australia for medical examination; or
(ii) delivered into the care and control of a South Australian authorised
officer (whether in or outside South Australia) for the purpose of the person's
transport to a South Australian treatment centre or other place in South
Australia for medical examination.
(2) A South Australian authorised officer or interstate authorised officer
may exercise the powers of an authorised officer under Part 9, or in the case of
a South Australian authorised officer who is a police officer, the powers of a
police officer under that Part, for the purpose of the person's transport to a
South Australian treatment centre or other place in South Australia for medical
examination, and the provisions of that Part (including section 55) will
apply for the purpose with necessary modifications.
(1) The Board must conduct the following reviews:
(a) a review of the circumstances involved in the making and revocation of
a level 1 community treatment order if the order was not reviewed by the Board
before its revocation (which review must be conducted as soon as practicable
after the revocation of the order);
(b) a review of a level 2 community treatment order that has been made in
respect of a child and continues to apply to the person 3 months after the
making of the order (which review must be conducted as soon as practicable after
the end of the period of 3 months);
(c) a review of the circumstances involved in the making of a level 1
detention and treatment order if the order has been made within 7 days after the
expiry or revocation of a previous detention and treatment order applying to the
same person (which review must be conducted as soon as practicable after the
making of the level 1 detention and treatment order);
(d) a review of a level 3 detention and treatment order that has been made
in respect of a child and continues to apply to the person 3 months after the
making of the order (which review must be conducted as soon as practicable after
the end of the period of 3 months);
(e) any review that is required under the regulations.
(2) The Board may conduct any other review that it considers appropriate
relating to a community treatment order or detention and treatment order or
treatment administered to a person to whom an order applies under this
Act.
(3) The Board may conduct a review under this section in any manner that
it considers appropriate.
75—Decisions and
reports on reviews
(1) On completion of a review, the Board must revoke, with immediate
effect, any community treatment order or detention and treatment order to which
the review relates if the Board is not satisfied that there are proper grounds
for it to remain in operation.
(2) Subject to subsection (1), the Board may, on a review relating to
a community treatment order or detention and treatment order, do 1 or more of
the following:
(a) affirm the order;
(b) vary the order;
(c) revoke the order;
(d) make an order, not being a detention and treatment order, that the
Board considers should be made in respect of the person, including an order that
the treatment and care plan applying to the person be reviewed.
(3) The Board may, on a review, provide to the Minister a written report
on any matter the Board considers should be drawn to the Minister's
attention.
76—Appeals to
Board against orders (other than Board orders)
(1) Any of the following persons who is dissatisfied with a community
treatment order or detention and treatment order (other than an order made by
the Board) may appeal to the Board against the order:
(a) the person to whom the order applies;
(b) the Public Advocate;
(c) a guardian, medical agent, relative, carer or friend of the person to
whom the order applies;
(d) any other person who satisfies the Board that he or she has a proper
interest in the matter.
(2) An appeal under this section may be instituted at any time during the
currency of the order the subject of the appeal.
(3) On hearing an appeal against an order, the Board must revoke the
order, with immediate effect, if the Board is not satisfied that there are
proper grounds for it to remain in operation.
(4) Subject to subsection (3), the Board may, on hearing an appeal
against an order, do 1 or more of the following:
(a) dismiss the appeal;
(b) affirm the order;
(c) vary the order;
(d) revoke the order;
(e) make an order, not being a detention and treatment order, that the
Board considers should be made in respect of the person, including an order that
the treatment and care plan applying to the person be reviewed.
77—Operation of
orders pending appeal
(1) Subject to subsection (2), an order continues to operate despite
the institution of an appeal against the order under this Part.
(2) The Board may, on the application of the appellant, vary or suspend an
order, or make an order restricting, or imposing conditions on, the treatment
that may be administered to the appellant, pending determination of the appeal,
if the Board thinks special reason exists for doing so.
78—Representation
on appeals to Board
(1) In every appeal to the Board under this Part, the person to whom the
proceedings relate is entitled to be represented by counsel in accordance with
this section.
(2) If a person chooses to be represented by counsel, he or she is
entitled to be represented by a legal practitioner provided under a scheme
established by the Minister for the purposes of this section, being a legal
practitioner—
(a) chosen by the person himself or herself; or
(b) in default of the person making a choice, chosen by a person or
authority contemplated by the scheme.
(3) A legal practitioner (not being an employee of the Crown or a
statutory authority) who represents a person under this section is entitled to
receive fees for his or her services from the Minister, in accordance with a
scale prescribed by the regulations, and cannot demand or receive from any other
person any further fee for those services.
(4) Nothing in this section derogates from the right of the person to whom
the proceedings relate to engage counsel at his or her own expense, or to appear
personally or by the Public Advocate or other representative in accordance with
the Guardianship and Administration Act 1993.
79—Appeals to
District Court and Supreme Court
The Guardianship and Administration Act 1993 provides certain
rights of appeal to the Administrative and Disciplinary Division of the District
Court and from that court to the Supreme Court in relation to orders or
decisions of the Board made under this Act.
Division
1—Minister and Chief Executive
The Minister has the following functions for the purposes of this
Act:
(a) to encourage and facilitate the involvement of persons who currently
have, or have previously had, a mental illness, their carers and the community
in the development of mental health policies and services;
(b) to develop or promote a strong and viable system of treatment and
care, and a full range of services and facilities, for persons with mental
illness;
(c) to develop or promote ongoing programmes for optimising the mental
health of children and young persons who are or have been under the guardianship
or in the custody of the Minister pursuant to the Children's Protection
Act 1993;
(d) to develop or promote services that aim to prevent mental illness and
intervene early when mental illness is evident;
(e) to ensure that information about mental health and mental illness is
made available to the community and to promote public awareness about mental
health and mental illness;
(f) to develop or promote appropriate education and training programmes,
and effective systems of accountability, for persons delivering mental health
services;
(g) to promote services in the non-government sector that are designed to
assist persons with mental illness;
(h) to develop or promote programmes to reduce the adverse impact of
mental illness on family and community life;
(i) any other functions assigned to the Minister by this Act.
(1) The Minister may delegate a power or function of the Minister under
this Act or another Act to a particular person or body or to the person for the
time being performing particular duties or holding or acting in a particular
position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation under this section—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will by the delegator.
82—Delegation by
Chief Executive
(1) The Chief Executive may delegate a power or function of the Chief
Executive under this Act to a particular person or body or to the person for the
time being performing particular duties or holding or acting in a particular
position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation under this section—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will by the delegator.
(1) There will be a position of Chief Psychiatrist.
(2) The Governor may appoint a senior psychiatrist to the position of
Chief Psychiatrist.
(3) The terms and conditions of appointment to the position of Chief
Psychiatrist will be as determined by the Governor.
84—Chief
Psychiatrist's functions
(1) The Chief Psychiatrist has the following functions:
(a) to promote continuous improvement in the organisation and delivery of
mental health services in South Australia;
(b) to monitor the treatment of voluntary patients and patients to whom
detention and treatment orders apply, and the use of mechanical body restraints
and seclusion in relation to such patients;
(c) to monitor the administration of this Act and the standard of
psychiatric care provided in South Australia;
(d) to advise the Minister on issues relating to psychiatry and to report
to the Minister any matters of concern relating to the care or treatment of
patients;
(e) any other functions assigned to the Chief Psychiatrist by this Act or
any other Act or by the Minister.
(2) The Chief Psychiatrist may, with the approval of the Minister, issue
standards that are to be observed in the care or treatment of
patients.
(3) Any standards issued by the Chief Psychiatrist under this section will
be—
(a) binding on any hospital that is an incorporated hospital under the
Health Care Act 2008; and
(b) binding as a condition of the licence in force in respect of any
private hospital premises under Part 10 of the Health Care Act
2008.
(4) The Chief Psychiatrist will—
(a) have the authority to conduct inspections of the premises and
operations of any hospital that is an incorporated hospital under the Health
Care Act 2008; and
(b) be taken to be an inspector under Part 10 of the Health Care Act
2008.
85—Delegation by
Chief Psychiatrist
(1) The Chief Psychiatrist may delegate a power or function of the Chief
Psychiatrist under this Act to a particular person or to the person for the time
being performing particular duties or holding or acting in a particular
position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation under this section—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will by the delegator.
Division
3—Authorised medical practitioners
86—Authorised
medical practitioners
(1) The Minister may, by instrument in writing, determine that a specified
medical practitioner, or a medical practitioner of a specified class, will be an
authorised medical practitioner for the purposes of this Act.
(2) The Minister may—
(a) attach conditions or limitations to a determination under this
section; and
(b) by subsequent instrument in writing, vary or revoke a determination
under this section or a condition or limitation of a determination under this
section.
Division
4—Authorised health professionals
87—Authorised
health professionals
(1) The Minister may, by instrument in writing, determine that a specified
person, or a person of a specified class, will be an authorised health
professional for the purposes of this Act.
(2) The Minister may—
(a) attach conditions or limitations to a determination under this
section; and
(b) by subsequent instrument in writing, vary or revoke a determination
under this section or a condition or limitation of a determination under this
section.
(1) The Minister may, by instrument in writing, determine that a specified
place will be an approved treatment centre for the purposes of this
Act.
(2) The Minister may—
(a) attach conditions or limitations to a determination under this
section; and
(b) by subsequent instrument in writing, vary or revoke a determination
under this section or a condition or limitation of a determination under this
section.
(1) The Minister may, by instrument in writing, determine that a specified
place will be a limited treatment centre for the purposes of this Act.
(2) The Minister may—
(a) attach conditions or limitations to a determination under this
section; and
(b) by subsequent instrument in writing, vary or revoke a determination
under this section or a condition or limitation of a determination under this
section.
(1) The director of a treatment centre must cause records to be kept
relating to every patient admitted to the centre under a detention and treatment
order or as a voluntary patient.
(2) The records must be kept in a form approved by the Minister and set
out—
(a) the name and address of each patient; and
(b) the nature of any mental or other illness or incapacity from which he
or she suffers; and
(c) full particulars of the treatment of the patient and of the
authorisation for that treatment, including the use of medication, mechanical
body restraints or seclusion; and
(d) if the person dies, the time, date and cause of death; and
(e) any other information prescribed by the regulations.
91—Particulars
relating to admission of patients to treatment centres
(1) The Minister must ensure that the following information is provided,
free of charge, to any person who requests the information and has a proper
interest in the matter:
(a) whether or not a particular person has been admitted to, or is being
detained in, a treatment centre under this Act; and
(b) if so, the date of the person's admission and (where applicable) the
date of his or her discharge or death.
(2) The director of a treatment centre must, on the discharge of a person
from the centre, provide to the person, on request, free of charge, a copy of
any orders, certificates or authorisations on which he or she was admitted,
detained or treated.
92—Delegation by
directors of treatment centres
(1) The director of a treatment centre may delegate a power or function of
the director under this Act to a particular person or to the person for the time
being performing particular duties or holding or acting in a particular
position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation under this section—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will by the delegator.
(1) A written order, notice or other instrument will be valid and
effective for the purposes of this Act despite non-compliance with a requirement
of this Act as to the form or contents of the instrument if its intended meaning
and effect are reasonably apparent from the instrument itself.
(2) Without limiting the effect of subsection (1), if there is a
clerical error or omission or misdescription of a person in an order, notice or
other instrument, the author of the instrument, or the Board, may make any
necessary correction of the instrument, and any such correction will be taken to
have had effect from the date of the making of the original
instrument.
94—Offences
relating to authorisations and orders
(1) A medical practitioner or authorised health professional who signs any
authorisation or order for the purposes of this Act, without having examined the
person to whom the authorisation or order relates, is guilty of an
offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) Subsection (1) does not apply to action of the Chief Psychiatrist
under section 64.
(3) A medical practitioner or authorised health professional
who—
(a) certifies that a person has a mental illness, not believing the person
to have a mental illness; or
(b) makes a statement in an authorisation or order given or made under or
for the purposes of this Act, or in a record kept in respect of a person to whom
such an authorisation or order applies, knowing the statement to be false or
misleading,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(4) A person who, not being a medical practitioner or authorised health
professional—
(a) signs any certificate or order for the purposes of this Act in which
he or she describes himself or herself as, or pretends to be, a medical
practitioner or authorised health professional; or
(b) otherwise purports to act under this Act in the capacity of a medical
practitioner or authorised health professional,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(5) A person who, by fraudulent means, procures or attempts to procure any
person who does not have a mental illness to be received into, or detained in, a
treatment centre, or to be treated as a person to whom an order applies under
this Act, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
95—Medical
practitioners or health professionals not to act in respect of
relatives
A medical practitioner or authorised health professional cannot sign any
authorisation, certificate or order under this Act relating to the treatment or
detention of a person to whom the medical practitioner or authorised health
professional is related by blood or marriage, or who is the domestic partner of
the medical practitioner or authorised health professional.
96—Removing
patients from treatment centres
A person must not, without lawful excuse, remove a patient who is being
detained in a treatment centre from the centre, or aid such a patient to leave
the centre.
Maximum penalty: $10 000 or imprisonment for 2 years.
97—Confidentiality
and disclosure of information
(1) Subject to subsection (2), a person engaged or formerly engaged
in the administration of this Act must not disclose personal information
relating to a person obtained in the course of administration of this Act except
to the extent that he or she may be authorised or required to disclose that
information by the Chief Executive.
Maximum penalty: $10 000.
(2) Subsection (1) does not prevent a person from—
(a) disclosing information as required by law, or as required for the
administration of this Act or a law of another State or a Territory of the
Commonwealth; or
(b) disclosing information at the request, or with the consent, of the
person to whom the information relates or a guardian or medical agent of the
person; or
(c) disclosing information to a relative, carer or friend of the person to
whom the information relates if—
(i) the disclosure is reasonably required for the treatment, care or
rehabilitation of the person; and
(ii) there is no reason to believe that the disclosure would be contrary
to the person's best interests; or
(d) subject to the regulations (if any)—
(i) disclosing information to a health or other service provider if the
disclosure is reasonably required for the treatment, care or rehabilitation of
the person to whom the information relates; or
(ii) disclosing information by entering the information into an electronic
records system established for the purpose of enabling the recording or sharing
of information in or between persons or bodies involved in the provision of
health services; or
(iii) disclosing information to such extent as is reasonably required in
connection with the management or administration of a hospital or SA Ambulance
Service Inc (including for the purposes of charging for a service); or
(e) disclosing information if the disclosure is reasonably required to
lessen or prevent a serious threat to the life, health or safety of a person, or
a serious threat to public health or safety; or
(f) disclosing information for medical or social research purposes if the
research methodology has been approved by an ethics committee and there is no
reason to believe that the disclosure would be contrary to the person's best
interests; or
(g) disclosing information in accordance with the regulations.
(3) Subsection (2)(c) does not authorise the disclosure of personal
information in contravention of a direction given by the person to whom the
information relates.
(4) Subsection (3) does not apply to a person to whom a community
treatment order or detention and treatment order applies.
(5) In this section—
personal information means information or an opinion, whether
true or not, relating to a natural person or the affairs of a natural person
whose identity is apparent, or can reasonably be ascertained, from the
information or opinion.
98—Prohibition of
publication of reports of proceedings
(1) Subject to subsection (2), a person must not publish a report of
any proceedings under this Act.
Maximum penalty: $10 000.
(2) The Board may, on application by a person who the Board is satisfied
has a proper interest in the matter, authorise the publication of a report of
proceedings before the Board under this Act.
(3) A person who is authorised to publish a report under
subsection (2) must not, except as authorised by the Board, disclose any
information in the report that identifies, or could tend to identify, the person
to whom the proceedings relate.
Maximum penalty: $10 000.
99—Requirements
for notice to Board or Chief Psychiatrist
A medical practitioner must not fail, without reasonable excuse, to comply
with a provision of this Act requiring the practitioner to send or give a notice
to the Board or the Chief Psychiatrist.
Maximum penalty: $1 250.
In any legal proceedings—
(a) an apparently genuine document purporting to be a community treatment
order, detention and treatment order or patient transport request will be
accepted as such in the absence of proof to the contrary;
(b) an apparently genuine document purporting to be a certificate under
the hand of the chief executive officer of SA Ambulance Service Inc and to
certify that a person was at a specified time employed as an ambulance officer,
or engaged as a volunteer ambulance officer, with an organisation that provides
ambulance services and authorised by the chief executive officer of
SA Ambulance Service Inc to exercise the powers conferred by this Act on
authorised officers will be accepted as proof of the matters so certified in the
absence of proof to the contrary;
(c) an apparently genuine document purporting to be a certificate under
the hand of the Chief Psychiatrist and to certify that a person was at a
specified time classified by the Chief Psychiatrist as a mental health clinician
for the purposes of this Act will be accepted as proof of the matters so
certified in the absence of proof to the contrary;
(d) an apparently genuine document purporting to be a Ministerial
agreement or a request, direction or approval under Part 10 will be accepted as
such in the absence of proof to the contrary;
(e) an apparently genuine document purporting to be standards issued by
the Chief Psychiatrist with the approval of the Minister under Part 12 will be
accepted as such in the absence of proof to the contrary;
(f) an apparently genuine document purporting to be a determination of the
Minister under Part 12 will be accepted as such in the absence of proof to the
contrary;
(g) an apparently genuine document purporting to be a delegation by the
Minister, the Chief Psychiatrist or the director of a treatment centre under
Part 12 will be accepted as such in the absence of proof to the
contrary.
(1) The Governor may make any regulations that are contemplated by this
Act, or are necessary or expedient for the purposes of this Act.
(2) Without limiting subsection (1), the regulations
may—
(a) provide for a community visitor scheme with persons having independent
powers to visit treatment centres, meet patients and take other steps for the
protection of patients' interests; or
(b) provide for the keeping of records; or
(c) prescribe, and provide for the payment and recovery of, fees in
respect of accommodation, treatment or other services provided at treatment
centres; or
(d) provide for the recovery of medical practitioners' fees on the medical
examination of persons with apparent mental illness; or
(e) provide for the recovery of fees for ambulance services provided in
the exercise of powers under this Act; or
(f) prescribe any matter relating to procedures to be adopted under this
Act; or
(g) prescribe a penalty not exceeding $5 000 for breach of a
regulation.
(3) The regulations may—
(a) make different provision according to the matters or circumstances to
which they are expressed to apply; and
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister, the
Chief Psychiatrist, the director of a treatment centre or any other person
or body prescribed by the regulations.
Schedule
1—Certain conduct may not indicate mental illness
A person does not have a mental illness merely because of any 1 or more of
the following:
(a) the person expresses or refuses or fails to express, or has expressed
or refused or failed to express, a particular political opinion or
belief;
(b) the person expresses or refuses or fails to express, or has expressed
or refused or failed to express, a particular religious opinion or
belief;
(c) the person expresses or refuses or fails to express, or has expressed
or refused or failed to express, a particular philosophy;
(d) the person expresses or refuses or fails to express, or has expressed
or refused or failed to express, a particular sexual preference or sexual
orientation;
(e) the person engages in or refuses or fails to engage in, or has engaged
in or refused or failed to engage in, a particular political activity;
(f) the person engages in or refuses or fails to engage in, or has engaged
in or refused or failed to engage in, a particular religious activity;
(g) the person engages in or has engaged in a particular sexual activity
or sexual promiscuity;
(h) the person engages in or has engaged in immoral conduct;
(i) the person engages in or has engaged in illegal conduct;
(j) the person has developmental disability of mind;
(k) the person takes or has taken alcohol or any other drug;
(l) the person engages in or has engaged in anti-social
behaviour;
(m) the person has a particular economic or social status or is a member
of a particular cultural or racial group.
However, nothing prevents, in relation to a person who takes or has taken
alcohol or any other drug, the serious or permanent physiological, biochemical
or psychological effects of drug taking from being regarded as an indication
that a person is suffering from mental illness.
Schedule 2—Repeal
and transitional provisions
1—Repeal of
Mental Health
Act 1993
The Mental Health Act 1993 is repealed.
(1) An order in force under section 12(1) of the Mental Health
Act 1993 immediately before the repeal of that Act continues in force
as a level 1 detention and treatment order under this Act, subject to the
provisions of this Act.
(2) An order in force under section 12(5) of the Mental Health
Act 1993 immediately before the repeal of that Act continues in force
as a level 2 detention and treatment order under this Act, subject to the
provisions of this Act.
(3) An order in force under section 12(6) of the Mental Health
Act 1993 immediately before the repeal of that Act continues in force
as a level 2 detention and treatment order under this Act, subject to the
provisions of this Act.
(4) Despite subclause (3), an order continued in force under that
subclause will, unless it earlier expires or is revoked, expire at 2 pm on the
day 21 days after the day on which it was made.
(5) An order in force under section 13 of the Mental Health
Act 1993 immediately before the repeal of that Act continues in force
as a level 3 detention and treatment order under this Act, subject to the
provisions of this Act.
(6) Despite subclause (5), an order continued in force under that
subclause will, unless it is earlier revoked, expire at 2 pm on the last day of
the period specified in the order as the period for which the person is to be
detained under the order.
(7) An order in force under section 20 of the Mental Health
Act 1993 immediately before the repeal of that Act continues in force
as a level 2 community treatment order under this Act, subject to the provisions
of this Act.
(8) Despite subclause (7), an order continued in force under that
subclause will, unless it is earlier revoked, expire at 2 pm on the last day of
the period specified in the order as the period for which the person is to given
treatment under the order.
(9) An authorisation or consent given by the Board, a medical practitioner
or any other person under a provision of the Mental Health Act 1993
continues to have effect for the purpose of the corresponding provision of this
Act.
(10) A proceeding of the Board commenced under a provision of the
Mental Health Act 1993, but not completed immediately before the
repeal of that Act, may be continued and completed for the purpose of the
corresponding provision of this Act.
(11) An appeal commenced under Guardianship and Administration
Act 1993 in relation to a decision or order of the Board under a
provision of the Mental Health Act 1993, but not completed
immediately before the repeal of the Mental Health Act 1993, may be
continued and completed as if it related to a decision or order of the Board
under the corresponding provision of this Act.