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CLAUSE NOTES
Mental Health Bill 2012
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Chapter 1 Preliminary
Part 1 Short Title and Commencement
This Part sets out the Act's short title and commencement.
Clause 1 Short Title
This clause sets out how the Act may be cited.
Clause 2 Commencement
This clause governs the Act's commencement.
Part 2 Interpretation
This Part governs how terms, phases and concepts used in the
Act are to be interpreted and applied.
Clause 3 Interpretation
This clause governs how terms and phrases used in the Act are
to be interpreted and applied.
In particular, subclause 1 provides that:
Chemical restraint is defined to mean medication that is
given to a person with a mental illness for the primary
purpose of controlling the person's behaviour. The
intention is to distinguish between medication that is given
to treat the symptoms of a person's mental illness or
physical condition, and medication that is given to exert
control over a person where the medication is not
immediately necessary for any medically identified
condition and when the intended effect is to sedate the
person and restrict their behaviour
Child is defined as a person who is less than 18 years of
age. This is consistent with the Tasmanian Age of Majority
Act 1973 which provides that a person attains full capacity
when they turn 18, for the purposes of the laws of the
State. The Act regulates children differently to adults in
some respects and the meaning has been included to make
it clear to whom particular components of the Act apply
Disability is defined with reference to the meaning of
disability contained in the Tasmanian Guardianship and
Administration Act 1995. The meaning has relevance for
clause 4, which provides that a person is not to be taken
to have a mental illness for the purposes of the Act, by
reason only of the person's intellectual or physical
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disability
General health care is defined to mean treatment that
is not primarily directed at treating or alleviating a mental
illness. The intention is to distinguish general health care,
which is not intended to be regulated by the Act, from
treatment as defined in clause 6, which is intended to be
regulated by the Act
Parent is defined broadly in terms of the responsibilities
that a parent has in relation to his or her children. The
intention is for the meaning to accommodate legally
appointed guardians, a person who has parental
responsibilities by virtue of an order made under the
Commonwealth Family Law Act 1975, and a person acting
on the authority of a parent of a child.
Subclause 2 clarifies matters relevant to approved forms.
Subclause 3 makes it clear that notes included in the Act do not
form part of the Act, and do not have force of law.
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Clause 4 Meaning of mental illness
This clause establishes a threshold for the operation and
application of the powers contained within the Act.
Subclause 1 establishes when a person may be taken to have a
mental illness for the purposes of the Act.
Subclause 2 qualifies subclause 1. The intention is to ensure that
a person may not be taken to have a mental illness for the
purposes of the Act, solely because the person meets one or
more of the criteria or factors listed in subclause 2.
The intention is to ensure that only those people with a mental
illness for whom the application of the Act may be appropriate,
are brought within the scope of the Act.
Clause 5 Meaning of assessment
This sets out what "assessment" means for the purposes of the
Act.
The clause has relevance for the making of Assessment Orders
insofar as it delineates the clinical processes that may be
performed under the authority of an Assessment Order.
Clause 6 Meaning of treatment
This clause sets out what "treatment" means for the purposes of
the Act.
The clause has relevance primarily for the making of Treatment
Orders insofar as it delineates and describes the type and nature
of the professional interventions that may be authorised by a
Treatment Order.
The intention is to capture the range of interventions which may
be necessary to treat a person's mental illness, including:
Interventions necessary to reduce the risk that a person
with a mental illness may, because of the mental illness,
pose to themselves or to others, and
Electro convulsive therapy,
while excluding interventions in relation to which the Act is not
intended to apply.
Subclause 1 sets out the types of interventions that are intended
to be captured within the meaning of treatment.
Subclause 2 sets out the types of interventions that are not
intended to be captured within the meaning of treatment. The
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types of procedures which are excluded, and the reasons for
this, are as follows:
Special psychiatric treatment is regulated in Part 6 of
Chapter 2 of this Act as a special category of treatment.
The intention is to distinguish treatment as defined in this
clause, from special psychiatric treatment so as to ensure
that special psychiatric treatment is authorised only
pursuant to Part 6 of Chapter 2 of this Act, and not
pursuant to any other provision or Part of the Act
Termination of pregnancy, procedures that could render a
person permanently infertile, and removal of tissue that
cannot be replaced naturally for transplantation purposes,
are each regulated as special treatments under the
Guardianship and Administration Act 1995 which enables
such treatments to be performed only in specified
circumstances. The establishment of a separate
authorisation process for these treatments is considered
to be outside of the Act's scope and these treatments are
excluded from the Act for that reason
General health care. The Act is concerned with providing
for the assessment, treatment and care of individuals with
mental illness who lack decision-making capacity in relation
to these matters, for and in relation to the mental illness.
The intention is not to regulate the provision of general
health care to persons who are unable to make their own
decision in this regard. Rather, authority for the provision
of general health care to a person with a disability who is
incapable of giving consent to the carrying out of general
health care is, and will continue to be, regulated pursuant
to the Guardianship and Administration Act 1995.
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Clause 7 Capacity of adults and children to make decisions about
their own assessment and treatment
This clause governs matters relevant to the decision-making
capacity of adults and children.
The clause is a threshold test insofar as a person may only be
placed on an Assessment or Treatment Order if they lack
decision-making capacity; conversely a person may only be taken
to have given informed consent to assessment or treatment if
they have decision-making capacity.
Subclause 1 applies to adults. It presumes that adults of sound
mind are legally competent to make their own assessment and
treatment decisions. On this basis the subclause enables a
decision maker to determine that an adult lacks decision-making
capacity only if it is established on the balance of probabilities
that the matters referred to in parts (a) and (b) of the subclause,
apply.
Subclause 2 applies to children. It presumes that children are
not legally competent to make their own assessment and
treatment decisions. On this basis the subsection enables a
decision maker to determine that a child has decision-making
capacity only if it is established on the balance of probabilities
that the matters the matters referred to in parts (a) and (b) of
the subclause, apply.
The intention is to require decision makers to consider whether
a person who is being asked to make a decision about
assessment or treatment, truly understands the nature and
consequences of the decision that they are being asked to make.
Subsection 3 establishes how certain components of
subclauses 1 and 2 are to be understood, in the application of
those components to the tests contained in subclauses 1 and 2.
In setting out the criteria that must be met before a person may
be found to lack the ability to make their own decision about
assessment and treatment, the clause seeks to bring tests of
decision-making capacity that apply to persons with a mental
illness, into line with tests of decision-making capacity that are
understood to apply generally at common law for persons
experiencing general health conditions.
The clause is intended to apply to a broad range of decisions
about assessment or treatment, including decisions to withhold
informed consent to assessment or treatment.
Limiting the criteria to those referred to in the clause is
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intended to ensure that assessments of an individual's decision-
making capacity are not value-based.
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Clause 8 Meaning of informed consent to assessment or treatment
This clause governs informed consent to assessment or
treatment.
Subclause 1 applies to both assessment and treatment decisions
and enables a medical practitioner to regard a person's consent
to an assessment or treatment as being informed if he or she is
satisfied of the matters referred to in parts (a), (b) and (c) of the
subclause.
Subclause 2 expands on and clarifies the matters referred to in
subclause 1(b) in their application to a treatment. The intention
is to ensure that the treating medical practitioner and the
person giving informed consent have discussed the treatment in
a way that has enabled the person to disclose any priorities,
expectations, and fears about the treatment, and that following
this discussion the person has been given information that is
considered, by either the treating medical practitioner or
person, to be of importance to the person's decision.
Subclause 3 expands on and clarifies the matters referred to in
subclause 1(c) in their application to an assessment or a
treatment.
Subclause 4 governs the language and form of information,
explanations or answers given to a person under subclause 2.
Subclause 5 governs the withdrawal of consent to an assessment
or treatment, by a person with decision-making capacity.
Clause 9 Informed consent for child who lacks capacity to decide
on own assessment and treatment
This clause governs the giving of informed consent for the
assessment or treatment of a child who lacks decision-making
capacity by a parent of the child.
Subclause 2 governs the giving of consent by one parent and
confirms that consent that is given by one parent is sufficient.
The intention is to provide authority for a parent to provide
consent for a child who lacks decision-making capacity. The
intention is not however to require or compel a parent to
provide that consent, nor is it to prevent consent from being
obtained from more than one parent.
There may be situations where it is not appropriate for a parent
to provide consent, for example if the parent is concerned about
the impact that providing the consent may have on their
relationship with the child. In other situations it may not be
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possible to locate a parent with the authority to provide
informed consent in a timeframe that is conducive to facilitating
treatment for the child concerned. This may occur if it is
necessary to, for example, apply to the Family Court for an
order pursuant to the Commonwealth Family Law Act 1975. In
such situations the intention is for the provisions of the Act to
apply.
Subclauses 3 and 4 governs withdrawal of consent to assessment
or treatment for a child who lacks decision-making capacity, by a
parent. The requirement for each parent to withdraw the
consent has relevance given the ability for one parent to provide
informed consent, pursuant to subclause 1 within this context
the withdrawal of consent by one parent will be ineffective if
consent was originally given by both parents, or if a parent of the
child other than the parent that withdraws consent, provides
informed consent pursuant to subclause 1.
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Clause 10 Identifying patients of relatives etc
This clause clarifies the nature of the obligation, contained in
various provisions of the Act, for documentation to be given to
a person or patient's representative or support person.
Clause 11 Timing of actions
This clause has relevance for clauses within the Act which
require an action to be taken as a consequence of an event. Its
purpose is to make it clear that unless the relevant provision
provides otherwise, the requirement is to take the action as
soon as practicable after the relevant event has occurred.
Part 3 Objects, Status and Scope of Act
This Part determines the objects and scope of the Act and its
status in relation to certain other laws.
Clause 12 Objects of Act
This clause, clause 15 and Schedule 1 jointly determine how the
Act's provisions are to be interpreted and applied.
Specifically:
Object (a), which refers to the assessment, treatment and
care of persons with mental illness, is intended to ensure
that the provisions of the Act are interpreted with a view
to maintaining continuity of care across treatment settings
for persons subject to Assessment and/or Treatment
Orders
Object (b), which refers to providing for appropriate
oversight and safeguards in relation to the assessment,
treatment and care of persons with mental illness, is
intended to emphasise the particular vulnerability of
persons with a mental illness who do not have decision-
making capacity with respect to their own assessment and
treatment such that a substitute decision is needed, and,
given this vulnerability, the need for assessment and
treatment decisions to be transparent and subject to
independent scrutiny and review
Object (c), which refers to giving everyone involved with
the assessment, treatment and care of persons with mental
illness clear direction about their rights and
responsibilities, is concerned with ensuring that persons
who have rights under the Act are aware of what these
are, so that they can be exercised and upheld
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Object (d), which refers to providing assessment,
treatment and care in the least restrictive setting
consistent with clinical need, legal and judicial constraints,
public safety and public health, safety and welfare, is
consistent with international rights instruments which
require treatment and care to be provided in the least
restrictive environment consistent with these matters.
This object is intended to operate alongside mental health
service delivery principle (b), which requires all persons
exercising responsibilities under the Act to interfere with
or restrict the rights of persons with mental illness in the
least restrictive way and to the least extent consistent with
the protection of those persons, the protection of the
public and the proper delivery of the relevant service
Object (e), which refers to promoting voluntary over
involuntary assessment and treatment and the making of
free and informed assessment and treatment choices, is
consistent with the Act's focus on decision-making capacity
as a threshold criterion for the application of the Act's
provisions
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Clause 13 Status of Act
This clause governs the Act's status in relation to other sources
of authority for the assessment, treatment and care of persons
with a mental illness.
The Act regulates the assessment, treatment and care of
persons with mental illness who lack decision-making capacity
and who need assessment or treatment for their own health or
safety or for the safety of others. It is intended that the
provisions of the Act will be the primary source of authority for
the assessment, treatment and care of members of this group
The intention is not to exclude other sources of authority that
may exist, but to ensure that where there is a choice between
using the provisions of this Act, or using the provisions of
another Act, the provisions of this Act are utilised to the extent
that they provide the necessary authority for the action that is
proposed to be taken.
Within this context:
The provision of treatment to adults and children with a
mental illness who have decision-making capacity will
continue to be regulated via the general common law,
subject to the provisions of this Act which impact on the
provision of that treatment and care for example Part 6
of Chapter 2 which regulates special psychiatric treatment
The provision of treatment to children with a mental
illness who lack decision-making capacity and for whom
informed consent to assessment or treatment is given by a
parent will continue to be regulated via the common law,
subject to the provisions of the Act which impact on the
provision of that treatment and care for example
clauses 7, 8 and 9 as they apply to children who lack
decision-making capacity
The provision of urgent medical or dental treatment to an
adult or a child with a disability who is incapable of giving
consent to the carrying out of medical or dental treatment
will continue to be regulated by section 40 of the
Guardianship and Administration Act1995 as currently occurs
The provision of treatment for a mental illness to a person
with a disability who is incapable of giving consent to the
treatment but who does not meet the treatment criteria
contained in the Act, will continue to be regulated via
Part 6 of the Guardianship and Administration Act 1995
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The provision of medical or dental treatment other than
treatment for a mental illness to an adult or a child who is
incapable of giving consent to the treatment will continue
to be regulated via Part 6 of the Guardianship and
Administration Act 1995
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Clause 14 Act binds Crown
This clause governs the Act's application to the Crown.
Chapter 2 Assessment, Treatment and Management of Patients
Part 1 Principles and policies
This Part sets out principles and policies relevant to the Act.
Clause 15 Mental health service delivery principles
Clause 13, this clause and Schedule 1 jointly determine how the
Act's provisions are to be interpreted and applied.
This clause requires all persons exercising responsibilities under
the Act, including statutory officers, police officers and members
and staff of the Mental Health Tribunal, to have regard to the
mental health service delivery principles set out in Schedule 1
when exercising those responsibilities.
Clause 16 Circumstances in which treatment may be given
This clause sets out the treatment policy which underpins the
Act. The clause is intended to clarify the circumstances in which
treatment may be given to a person under the Act and to
provide a `ready reference' for consumers, clinicians and others
in relation to this aspect of the Act.
Part 2 Protective custody
This Part governs protective custody.
Clause 17 Power to take person into protective custody
This clause provides authority for a person to be taken into
protective custody.
The manner in which mental health officers and police officers
are to perform custody and escort functions is outlined in
Schedule 2 Custody and Escort Functions.
Clause 18 Handover of person taken into protective custody
This clause governs the handover of a person who is taken into
protective custody.
Subclause 1 requires a person who is in protective custody to be
taken to an approved assessment centre.
Subclause 1 also enables a mental health officer or police officer
who has a person in protective custody to ask any mental health
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officer at the approved assessment centre to which the person is
taken, to take over the person's protective custody.
Subclause 2, in turn, requires a mental health officer who is
asked to take over a person's custody pursuant to subclause 1
to do so, unless it would be unsafe in the circumstances for this
to occur.
Circumstances in which it might be unsafe to accept a person's
custody include if the behaviour of the person in custody is
sufficiently volatile to require a continued police presence.
Subclause 3 makes it clear that the handover of a person's
custody pursuant to subclauses 1 and 2 or in any other
circumstances should not be taken as having interrupted the
person's custody. This has particular relevance for clause 20,
which places a limitation on the period of time for which a
person may be held in protective custody after they have arrived
at an assessment centre. The intention is to ensure that the
time for which a person is considered to have been held in
custody should be calculated notwithstanding any handover of
custody that may have occurred.
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Clause 19 Dealing with person in protective custody
This clause governs how a person in protective custody who has
been escorted to an approved assessment centre pursuant to
clause 18, should be dealt with.
In particular subclause 2 requires the controlling authority of the
assessment centre to which a person has been taken pursuant to
clause 18, to:
Give the person a statement of rights in a form approved
by the Chief Civil Psychiatrist. It is intended that the
statement would list the rights that the person has
pursuant to the Act, along with any other general legal
rights that the person may have outside of the Act to, for
example, contact a representative or support person, and
Have the person examined by a medical practitioner within
four hours of the person having arrived at the assessment
centre to see whether the person needs to be assessed
against the assessment or treatment criteria. The
requirement for the examination to occur within four
hours is linked to the requirement in clause 20 for a
person to be released from protective custody if the
person has been at the assessment centre for more than
four hours calculated from the time of their arrival at the
centre.
Clause 20 Release of person from protective custody
The clause governs matters relevant to a person's release from
protective custody.
Subclauses 1 and 2 jointly require a mental health officer or
police officer who has a person in protective custody to release
that person from the protective custody if and when:
The person gives informed consent to be assessed or
treated. Such a person would not meet the assessment or
treatment criteria such that the custody the purpose of
which is to have the person assessed with regard to those
criteria would be unnecessary, or
An Assessment or Treatment Order is made. A person
who is subject to an Assessment or Treatment Order may
be detained in an approved facility pursuant to the Order
this would effectively remove the need for the person to
remain in protective custody, or
The mental health officer or police officer who has the
person in protective custody forms the belief that the
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person no longer meets the criteria outlined in clause 17,
or
Four hours have passed since the person's arrival at the
assessment centre and none of the matters noted in
subclause 1(a) have occurred in that period
The intention is to ensure that there are clear trigger points at
which a person must be released from protective custody, and
that in addition to this a person is not detained in an approved
assessment centre pursuant to the protective custody provisions
for more than four hours.
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Clause 21 Records etc
This clause governs record keeping associated with protective
custody.
In particular, the clause requires certain records to be given to
the person who was in protective custody, and for copies of
records that are made to be given to the Chief Civil Psychiatrist
on a monthly basis.
Requiring records to be kept and provided to the person the
subject of the protective custody enables that person to firstly
have a record of that custody and secondly enables the person
to contact the Chief Civil Psychiatrist or other oversight body,
should they believe that their rights have been abused in relation
to that custody.
Requiring records to be provided to the Chief Civil Psychiatrist
ensures that matters relevant to protective custody may be
appropriately oversighted by the Chief Civil Psychiatrist. In
particular requiring records to be provided to the Chief Civil
Psychiatrist on a regular basis is consistent with the Chief Civil
Psychiatrist's responsibilities in relation to ensuring that the
objects and principles of the Act are met with respect to
patients including involuntary patients and voluntary inpatients.
Part 3 Involuntary patients
This Part governs Assessment and Treatment Orders, and
related matters.
Clause 22 Who can make an assessment order?
This clause governs who can make an Assessment Order.
Clause 22 Application for assessment order
This clause governs applications for Assessment Orders.
Subclauses 1 and 2 jointly determine who can apply for an
Assessment Order.
In particular, subclause 2 requires an applicant be satisfied, from
a personal knowledge of the person for whom the Order is
being sought, that the person has or might have a mental illness.
The person must also be satisfied that a reasonable attempt to
have the person assessed with informed consent has failed, or
that it would be futile or inappropriate to make an attempt to
have the person assessed with informed consent.
The intention is to ensure that an Assessment Order is made
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only when other means of having the patient assessed have been
unsuccessful, as may occur if the person has failed to attend
appointments scheduled for the purposes of assessing the
person, or would be inappropriate in the circumstances, for
example in the event that the person is significantly unwell and in
need of immediate assessment where this is not considered to
be able to occur, because of the person's state of mental health,
with informed consent.
Subclause 3 determines the form that an application is to take.
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Clause 24 Determination of application for assessment order
This clause governs how applications for Assessment Orders are
to be determined.
Subclause 1 sets out the circumstances in which a medical
practitioner may make an Assessment Order. In particular
subclause 1 requires a medical practitioner who makes out an
Assessment Order to:
Have examined the person for whom the application has
been made, within the period commencing 72 hours
before the application is received and ending 72 hours
after its receipt. While most examinations will occur after
an application is received there may be circumstances
where this is not the case. For example the application
may be made in response to a medical practitioner's
concern about the mental state of a person that they saw
the previous day. Allowing an examination to have
occurred before an application is received enables medical
practitioners to speak with, for example, the person's
guardian or community case worker to gain information
about the person's recent behaviour before determining
whether or not an Order is necessary. Without flexibility
around when an application may be received the person's
examination and assessment may be delayed. Enabling
flexibility also prevents the potential use of more
restrictive means of having the person examined and
assessed, and
Be satisfied that the person needs to be assessed against
the assessment criteria, and that a reasonable attempt to
have the person assessed with informed consent has failed
or that it would be futile or inappropriate to make an
attempt to have the person assessed on this basis. The
intention is to ensure that an Assessment Order is made
only when other means of having the patient assessed have
been unsuccessful, as may occur if the person has failed to
attend appointments scheduled for the purposes of
assessing the person, or would be inappropriate in the
circumstances, for example in the event that the person is
so significantly unwell that they are not considered, on the
face of it, to be capable of giving informed consent.
Subclause 2 enables a medical practitioner to make an
Assessment Order that requires the patient's detention in an
approved hospital.
Subclause 3 limits the operation of subclause 2, in relation to
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children. In particular it prevents a medical practitioner from
making an Assessment Order requiring the detention of a child
in an approved hospital unless the practitioner is satisfied that
the hospital in which it is intended to detain the child:
Has the facilities and staff for the child to be assessed, and
Is the most appropriate place to accommodate the child in
the circumstances.
Factors relevant to this determination might include whether:
The particular hospital has staff who are suitably qualified
and experienced to assess children, and the ability to
accommodate the child in an environment that is suitable
for the particular child's needs, and
There are alternatives to the child's detention, including
whether it is possible for the child to be assessed at a
facility other than an approved hospital and/or as an
outpatient.
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Clause 25 Assessment criteria
This clause determines the criteria which must be met before an
Assessment Order may be made, as follows:
Criterion (a) requires the person to have, or to appear to
have, a mental illness that is in need of treatment for the
person's health or safety, or for the safety of others. This
criterion seeks to enable early intervention at a point
when the person's illness and the risk that this is
considered to pose to their health or safety or the safety
of others is first identified, and
Criterion (b) refers to the need for the Assessment Order
so that the person can be properly assessed with regard to
the mental illness or the making of a Treatment Order.
This criterion is intended to make it clear that a person
may not be taken to meet the Assessment Criteria if there
are other options for assessing the person properly with
regard to the mental illness or the making of a Treatment
Order, and is consistent with Object (d) which is
concerned with providing assessment, treatment and care
in the least restrictive setting consistent with clinical need,
legal and judicial constraints, public safety and public health,
safety and welfare, and with mental health service delivery
principle (b), which is concerned with interfering with the
rights of persons with mental illness in the least restrictive
way and to the least extent consistent with the protection
of the person, the public and the proper delivery of the
relevant service, and
Criterion (c) requires the person to lack decision-making
capacity. This criterion is included to make it clear that a
person may only be placed on an Assessment Order if the
person lacks the capacity to make a decision about their
own assessment.
Clause 26 Form and content of assessment order
This clause governs the form and content of an Assessment
Order that is made pursuant to clause 24.
In particular:
Subclause 3 clarifies the ability for an Assessment Order to
include a requirement that the patient be detained in an
approved hospital, pursuant to subclauses 2 and 3 of clause
24, and
Subclause 4 clarifies the ability for an Assessment Order to
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specify or provide for any matters, incidental to the
assessment of the person in respect of whom the
Assessment Order has been made, that the medical
practitioner making the Order considers it necessary or
desirable to include in the circumstances, without
compromising the validity of the Order. The intention is to
enable an Assessment Order to validly include matters
that are directly connected with the patient's assessment,
which the medical practitioner making the Order thinks
should be included in the Order, in the relevant
circumstances. This might include, for example, a
requirement that the patient be assessed by a particular
health professional. The intention is to ensure that
Orders which contain such conditions remain valid and to
prevent the inclusion of arbitrary conditions or
requirements.
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Clause 27 Effect of assessment order
This clause sets out what an Assessment Order is authority for.
Subclause 1 makes it clear that an Assessment Order is
authority for the patient to be assessed by an approved medical
practitioner, without the patient's informed consent, for the
purposes specified in the subclause.
Subclause 2 confirms that an Assessment Order is not authority
for the patient to be given treatment.
Clause 28 When does assessment order take effect
This clause determines when an Assessment Order takes effect.
Clause 29 Action to be taken by medical practitioner on making
assessment order
This clause governs the actions that are to be taken by a medical
practitioner who makes an Assessment Order.
In particular the clause requires a medical practitioner who
makes an Assessment Order to:
Give the patient a copy of the Order, and
Give the patient a statement of rights in a form approved
by the Chief Civil Psychiatrist. It is intended that the
statement would list the rights that the patient has
pursuant to the Act, including the right to apply to the
Mental Health Tribunal for a review of the Order pursuant
to clause 180.
Clause 30 Assessment of patient
This clause governs a patient's assessment pursuant to an
Assessment Order.
Subclause 1 requires a patient to be assessed by an approved
medical practitioner within 24 hours of the Order taking effect.
Subclause 2 requires the approved medical practitioner who
conducts the assessment pursuant to subclause 1, to be
someone other than the medical practitioner who applied for, or
made, the Assessment Order. An approved medical practitioner
may continue to perform medical practitioner functions under
the Act and the inclusion of this requirement is to ensure that at
least two separate people examine the patient, and (if the Order
is affirmed) determine that the Order is necessary.
Clause 31 Ensuring patient presents for assessment
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This clause governs matters relevant to a patient's assessment.
Subclause 1(a) provides that an Assessment Order is authority
for the patient to be taken under escort by any mental health
officer or police officer to make sure that he or she presents for
the assessment that is authorised by the Order. Taking the
patient under escort may be necessary if, for example, the
patient has refused to self-present at the place of assessment, or
if the patient is unable to present at an assessment centre
voluntarily for example if the patient is physically incapacitated.
Subclause 1(b) provides that an Assessment Order is also
authority for a patient whose admission to and detention in an
approved facility is authorised by the terms of the Assessment
Order to which they are subject, to be admitted to and detained
in an approved facility for and in connection with the assessment
that is authorised by the Order.
Subclauses 2 and 3 establish how the person's escort is to be
initiated.
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Clause 32 Affirmation or discharge of assessment order
This clause governs the actions available to an approved medical
practitioner who assesses a patient pursuant to clause 30.
Subclause 2 requires an approved medical practitioner who
assesses a patient pursuant to clause 30 to immediately either
affirm, or discharge, the Assessment Order.
Subclause 3 governs the affirmation of an Assessment Order.
Subclause 4 provides authority for an approved medical
practitioner who has affirmed an Assessment Order pursuant to
subclause 3, to also extend the operation of the Order for up to
a further 72 hours.
This clause, together with clause 30, have the effect of
establishing the maximum time period for which an Assessment
Order may be in effect, namely 96 hours (comprised of a
maximum period of 24 hours before the approved medical
practitioner is required to conduct the assessment pursuant to
clause 30 and a maximum period of 72 hours for which the
Order may be extended, if affirmed pursuant to this clause).
Subclauses 5, 6 and 7 govern matters relevant to the affirmation
of an Order.
Subclause 8 governs matters relevant to the discharge of an
Order.
Clause 33 Action to be taken by medical practitioner on affirming
assessment order
This clause governs the actions to be taken by an approved
medical practitioner who affirms an Assessment Order pursuant
to clause 32.
In particular subclause 1 requires an approved medical
practitioner who affirms an Assessment Order to give notice of
the affirmation to persons including the patient, the Chief Civil
Psychiatrist and the Mental Health Tribunal.
The subclause does not require a statement of rights to be given
to the patient. This is because such a statement is required to
be given at the time the Order is made, pursuant to clause 29.
The provision of an additional statement at this point is not,
however, precluded by the clause.
Giving notice of the affirmation to the Chief Civil Psychiatrist is
relevant given the Chief Civil Psychiatrist's power of direct
intervention provided for pursuant to clause 147.
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Giving notice of the affirmation to the Mental Health Tribunal is
relevant given the Tribunal's ability to review the making of an
Assessment Order pursuant to clause 180.
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Clause 34 Duration of assessment order
This clause governs the duration of an Assessment Order. The
intention is to clarify the operation of clauses 30, 32 and 35 as
they relate to the time for which an Assessment Order may be
considered to remain in place.
Clause 35 Discharge of assessment order by medical practitioner
or Tribunal
This clause governs the discharge of an Assessment Order by a
medical practitioner, or the Mental Health Tribunal.
In particular subclauses 1 and 2 jointly enable an Assessment
Order to be discharged at any time by:
The medical practitioner who made the Order, or
By any approved medical practitioner, or
By the Mental Health Tribunal.
Subclause 3 regulates discharge by a medical practitioner
(including an approved medical practitioner).
Subclause 4 requires a medical practitioner who discharges an
Assessment Order pursuant to this clause to give notice of the
discharge to persons including the former patient, the Chief Civil
Psychiatrist and the Mental Health Tribunal.
Clause 36 Who can make a treatment order
This clause governs who can make a Treatment Order.
Clause 37 Application for treatment order
This clause governs applications for Treatment Orders, and
provides for related matters.
Subclause 1 governs who can apply for a Treatment Order.
Subclause 2 makes it clear that an application may be made
regardless of whether the person or patient is, at the time that
the application is made, subject to an Assessment Order.
Subclause 3 governs applications made for patients who are, at
the time of application, subject to an Assessment Order.
Subclause 4 governs applications made for persons who are not,
at the time of application, subject to an Assessment Order. The
subclause provides that an application for a person who is not
subject to an Assessment Order should only be made if:
The applicant and one other approved medical practitioner
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have each separately assessed the person within the seven
days prior to the application being made, and
Both the applicant and the other approved medical
practitioner are satisfied, from the assessments that they
have each conducted, that the person meets the treatment
criteria.
Subclause 5 establishes certain requirements in relation to
applications. In particular the subclause requires an application
to be accompanied by:
A proposed treatment plan. At the time of application the
plan in place for some persons or patients may be minimal.
In this instance the plan is likely to include only basic
information about the person or patient's likely diagnosis
and the kinds of treatment that, if the diagnosis is
confirmed, are considered likely to be required. It is
expected that the treatment plan considered by the Mental
Health Tribunal at the time that the Tribunal considers
whether or not to make the Treatment Order will be
significantly more complete, and
An indication of whether an interim Treatment Order is
needed. This is crucial for determining whether the Order
is made by the Mental Health Tribunal pursuant to clause
39, or by a single member of the Tribunal pursuant to
clause 38.
Subclause 6 requires an applicant for a Treatment Order to do
things including the following:
Give the person or patient the subject of the application a
copy of the application, and
Give the person or patient the subject of the application a
statement of rights in a form approved by the Chief Civil
Psychiatrist. It is intended that the statement would list
the rights that the person or patient has pursuant to the
Act, which includes the right to be a party to proceedings
and to be represented, and the right to apply for a review
of any Treatment Order that is made, pursuant to
clause 181.
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Clause 38 Interim Treatment Order
This clause provides authority for a single member of the Mental
Health Tribunal to make an interim Treatment Order.
Subclause 1 sets out the matters that the Tribunal member must
be satisfied of, before making an interim Treatment Order,
including that:
The person or patient meets the treatment criteria, and
The Mental Health Tribunal cannot determine the
application immediately and the delay that would be
involved in waiting for a Tribunal decision under clause 39
if the interim Treatment Order is not made would, or is
likely to, seriously harm the person or patient's health or
safety or the safety of other persons. The intention is for
interim Treatment Orders to be sought, and made, only
when necessary and in circumstances where it is not
feasible to wait for a Tribunal decision under clause 39.
Subclause 2 provides authority for an interim Treatment Order
to include a requirement:
That the treatment setting for the patient be a specific
approved hospital or assessment centre, or a premises or
other place for example, the Royal Hobart Hospital or at
the patient's usual general practice, or
That the treatment setting for the patient be a type of
approved hospital or assessment centre, or a type of
premises or other place, specified in the Order for
example, a Mental Health Services community team site or
a general practice staffed with mental health practice
nurses, or
That, for the purposes of receiving treatment, a patient be
detained in:
A specific approved hospital for example, the
Northside Mental Health Clinic, or
A type of approved hospital for example, at an
approved hospital that is equipped to cater for
geriatric clients.
Subclause 3 limits the operation of subclause 2, in relation to
children. In particular it prevents a member of the Tribunal
from making an interim Treatment Order that requires a child
to be detained in an approved hospital unless the member is
satisfied that the hospital in which it is intended the child be
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detained:
Has the facilities and staff for the child to be treated, and
Is the most appropriate place to accommodate the child in
the circumstances.
Factors relevant to this determination might include whether:
The particular hospital has staff who are suitably qualified
and experienced to treat children and the ability to
accommodate the child in an environment that is suitable
for the particular child's needs, and whether
There are alternatives to the child's detention, including
whether it is possible for the child to be treated at a
facility other than an approved hospital and/or as an
outpatient.
Subclause 4 confirms the Tribunal member's ability to make an
interim Treatment Order on the basis of an application alone,
and without conducting a hearing or engaging in any further
investigation into the matters presented in the application. The
intention is to ensure that the Tribunal member may make an
interim Treatment Order quickly and on the basis of the
information presented to him or her, if this is considered to be
needed in the circumstances, given the need for the application
to be considered by the Mental Health Tribunal if the intention
is for the Order to continue, pursuant to clause 39, and within
ten days of the interim Order having been made.
Subclause 5 governs the form and content of an interim
Treatment Order that is made pursuant to this clause.
Subclause 6 provides that an interim Treatment Order should be
taken, for the purposes of the Act other than the provisions
specified in the subclause, to be a Treatment Order made by the
Mental Health Tribunal.
Subclause 7 establishes when an interim Treatment Order takes
effect and for how long it continues in effect. The intention is
for interim Treatment Orders to be used as a temporary
measure and only when the matter cannot be determined by the
Mental Health Tribunal pursuant to clause 39 within a timeframe
that is consistent with the patient's health and safety, and the
safety of others.
Subclause 8 confirms the ability for any Tribunal member to
revoke or amend an interim Treatment Order made pursuant to
this clause, at any time.
Subclause 9 provides that an interim Treatment Order lapses
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after ten days, if the Tribunal has not determined the application
which prompted the making of the interim Order, by that time.
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Clause 39 Determination of application for treatment order
This clause provides authority for the Mental Health Tribunal to
make a Treatment Order.
Subclause 1 sets out the matters that the Mental Health Tribunal
must be satisfied of before making a Treatment Order, including
that the person meets the treatment criteria.
Subclause 2 provides authority for a Treatment Order to include
a requirement:
That the treatment setting for the patient be a specific
approved hospital or assessment centre, or a premises or
other place for example, the Royal Hobart Hospital or at
the patient's usual general practice, or
That the treatment setting for the patient be a type of
approved hospital or assessment centre, or a type of
premises or other place, specified in the Order for
example, a Mental Health Services community team site or
a general practice staffed with mental health practice
nurses, or
That, for the purposes of receiving treatment, a patient be
detained in:
A specific approved hospital for example, the
Northside Mental Health Clinic, or
A type of approved hospital for example, at an
approved hospital that is equipped to cater for
geriatric clients.
Subclause 3 limits the operation of subclause 2, in relation to
children. In particular it prevents the Tribunal from making a
Treatment Order that requires a child to be detained in an
approved hospital unless the member is satisfied that the
hospital in which it is intended the child be detained:
Has the facilities and staff for the child to be treated, and
Is the most appropriate place to accommodate the child in
the circumstances.
Factors relevant to this determination might include whether:
The particular hospital has staff who are suitably qualified
and experienced to treat children and the ability to
accommodate the child in an environment that is suitable
for the particular child's needs, and whether
There are alternatives to the child's detention, including
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whether it is possible for the child to be treated at a
facility other than an approved hospital and/or as an
outpatient.
Subclause 4 requires the Tribunal to:
Consider an application as soon as practicable after it is
received this is intended to ensure that interim
Treatment Orders are made out only when the Tribunal
cannot determine the application within a reasonable time
period, and that interim Treatment Orders which are
made pursuant to clause 38, are considered by the
Tribunal by way of a hearing at which the patient may
appear and be represented, as quickly as practicable, and
Consider the application by way of a hearing at which the
patient has the right to appear, and be represented.
Subclause 5 provides that an application for a Treatment Order
lapses and is rendered invalid if the Tribunal does not consider
the matter within ten days of the application being lodged. The
intention it to require the Tribunal to consider an application as
soon as practicable so that a determination may be made of
whether or not the patient meets the treatment criteria, at a
hearing at which the patient has the right to appear and be
represented, in as short a time frame as possible.
Subclause 6 expands on subclause 4 by requiring the Tribunal
hearing to consider an application at a hearing before at least
three Tribunal members.
Page 34 of 124
Clause 40 Treatment criteria
This clause establishes the criteria that must be met before a
Treatment Order (including an interim Treatment Order) may
be made, as follows:
Criterion (a) refers to the need for the person or patient
to have a mental illness. This criterion is included to
ensure that a Treatment Order is made out only for a
person for whom the powers available under the Act are
appropriate
Criterion (b) refers to serious harm that the mental illness
will or is likely to cause to the person's health or safety, or
to the safety of others, if treatment is not given. The
intention is to balance the need for intervention with the
need to ensure that only those persons for whom the
mechanisms available under the Act are needed, are placed
on a Treatment Order, given the extent to which a
Treatment Order may infringe the rights of the person
subject to it
Criterion (c) refers to the need for there to be a link
between the person's state of mental health, and the
treatment that is proposed to be authorised by way of a
Treatment Order. The criterion is in particular intended
to prevent the making of a Treatment Order which
authorises treatment which is either not appropriate to
treat the person's illness or is not considered to be an
effective means of treating the person's condition
Criterion (d) refers to the need for the Order. The
intention is to emphasise the importance of an Order
being made only when this is absolutely necessary and is
the only mechanism for ensuring that the person is
adequately treated
Criterion (e) refers to the need for the person to lack
decision-making capacity. This criterion is included to
make it clear that a person may only be placed on a
Treatment Order if they lack the capacity to make a
decision about their own treatment.
Clause 41 Form and content of treatment order
This clause governs the form and content of a Treatment Order.
In particular, subclause 2 provides that a Treatment Order must
specify matters including:
The treatment, or types of treatment, that the Order is
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authorising, and
The treatment plan that is to apply, and
That the treatment and treatment setting are to be those
specified in the treatment plan, either as made pursuant to
clause 53 or as varied pursuant to clause 54, and
The Order's expected maximum duration.
Subclause 3 clarifies the ability for a Treatment Order to require
particular treatment settings and the patient's detention,
pursuant to subclauses 2 and 3 of clause 39.
Subclause 4 enables the Tribunal to discharge any Assessment
Order to which the patient was subject at the time the
Treatment Order was made, by specifying this in the Treatment
Order itself. The intention is to ensure that a patient is not
subject to both an Assessment and a Treatment Order, and to
avoid the need for a separate discharge process for the
Assessment Order which may otherwise be considered to be
required.
Subclause 5 clarifies the ability for a Treatment Order to specify
or provide for any matters, incidental to the patient's treatment,
that the Tribunal considers it necessary or desirable to include
in the circumstances, without compromising the validity of the
Order. The intention is to enable a Treatment Order to validly
include matters that are directly connected with the patient's
treatment, which the Tribunal thinks should be included in the
Order, in the relevant circumstances. This might include, for
example, a requirement that the patient be treated by a
particular health professional. The intention is to ensure that
Orders which contain such conditions remain valid and to
prevent the inclusion of arbitrary conditions or requirements.
Page 36 of 124
Clause 42 Effect of treatment order
This clause sets out what a Treatment Order is authority for.
Subclause 1 provides that a Treatment Order is authority for the
patient:
To be given the treatment that is specified in the Order
and referred to in the treatment plan specified in the
Order, either as made pursuant to clause 53 or as varied
pursuant to clause 54, without that patient's consent, or
If the Order specifies a type of treatment - to be given
treatment of that type as specified in the treatment plan
for the patient, either as made pursuant to clause 53 or as
varied pursuant to clause 54, without that patient's
consent.
Subclause 2(a) makes it clear that a Treatment Order which
specifies an approved facility and which refers to an approved
facility in the treatment plan specified in the Order, either as
made pursuant to clause 53 or as varied pursuant to clause 54, is
authority for the patient to be admitted to, and detained in, the
facility which is so specified, without that patient's consent so
that the treatment specified in the Order may be provided.
Subclause 2(b) makes it clear that a Treatment Order which
specifies a type of approved facility and which refers to that type
of approved facility in the treatment plan specified in the Order,
either as made pursuant to clause 53 or as varied pursuant to
clause 54, is authority for the patient to be admitted to, and
detained, in a facility of that type, without that patient's consent
so that the treatment specified in the Order may be provided.
Subclause 2(c) refers to clause 47, which regulates the action to
be taken in the event that a patient is found to have failed to
comply with an Order. Subclause 2(c) provides that if clause 47
applies, a Treatment Order is also authority for the patient who
is subject to it to be detained in an approved hospital or
approved assessment centre.
Subclauses 2(d), (e) and (f) jointly govern how long a patient who
is detained in an approved facility where the detention has
occurred pursuant to the terms of subclause 2(a), (b) or (c), may
be detained in that facility.
Subclause 3 requires the controlling authority of a facility to
which a patient has been admitted pursuant to subclauses 2(a),
(b) or (c), to notify the Mental Health Tribunal and the Chief
Civil Psychiatrist, of the patient's admission.
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This is of relevance given:
The requirement in clause 181 for the Tribunal to review
the Treatment Order of a patient who had been admitted
to an approved facility pursuant to subclauses 2(a), (b), or
(c) within three days of being notified of the patient's
admission, pursuant to subclause 3 of this clause, and
The Chief Civil Psychiatrist's ability to intervene in relation
to matters involving the general assessment and treatment
of patients including persons subject to Treatment Orders,
pursuant to clause 147.
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Clause 43 When does treatment order take effect?
This clause establishes when a Treatment Order takes effect.
Clause 44 Duration of treatment order
This clause governs the duration of a Treatment Order.
Clause 45 Action to be taken by Tribunal on making treatment
order
This clause governs the actions that the Tribunal is to take, on
making a Treatment Order.
In particular, subclause 1 requires the Tribunal to do the
following when it makes a Treatment Order:
Give the patient notice that the Order has been made, and
Give the patient a copy of the Order, and
Given the patient a statement of rights in a form approved
by the Mental Health Tribunal. It is intended that the
statement would list the rights that the patient has
pursuant to the Act, including the right to apply for the
Order to be reviewed by the Tribunal, pursuant to
clause 181, and
Give notice that the Order has been made, and a copy of
the Order, to persons including the Chief Civil Psychiatrist.
The requirement to give notice to the Chief Civil Psychiatrist is
relevant given the Chief Civil Psychiatrist's ability to intervene in
relation to matters involving the general assessment and
treatment of patients including patients subject to Treatment
Orders, pursuant to clause 147.
Clause 46 Ensuring patient presents for treatment, &c
This clause governs matters relevant to a patient's treatment.
Subclause 1 provides that a Treatment Order is authority for the
patient to be taken under escort by a mental health officer or
police officer to ensure that he or she presents for treatment
under the Order.
Subclause 2 establishes how the person's escort is to be
initiated.
Clause 47 Failure to comply with treatment order
This clause governs the failure, by a patient, to comply with a
Treatment Order.
Page 39 of 124
Subclause 1 establishes the criteria that must be met before a
patient may be considered to have failed to comply with a
Treatment Order.
Subclauses 2 establishes the actions that may be taken in the
event that the criteria in subclause 1 are considered to be met.
The actions that may be taken are limited to:
Applying to the Tribunal for the treatment or treatment
setting specified in the Treatment Order to be varied
pursuant to clause 181, or
Asking, pursuant to clause 46(2)(a), for the patient to be
taken under escort so that he or she may be involuntarily
admitted to an approved facility and detained there
pursuant to clause 42(2)(c), or
Applying to the Chief Civil Psychiatrist for authorisation to
give the patient urgent circumstances treatment pursuant
to clause 55.
Subclause 3 limits the operation of subclause 2, in relation to
children. In particular it prevents a treating medical practitioner
from applying or asking for a child to be detained in an approved
hospital pursuant to subclause 2, unless the practitioner is
satisfied that the hospital in which it is intended the child be
detained:
Has the facilities and staff necessary to assess the child, and
Is the most appropriate place to accommodate the child in
the circumstances.
Factors relevant to this determination might include whether:
The particular hospital has staff who are suitably qualified
and experienced to treat children and the ability to
accommodate the child in an environment that is suitable
for that child's particular needs
There are other alternatives, including whether it is
possible for the child to be treated at a facility other than
an approved hospital and/or as an outpatient.
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Clause 48 Renewal of treatment order
This clause governs the renewal of Treatment Orders.
Subclause 1 governs who may apply for a Treatment Order to
be renewed, and provides authority for the Mental Health
Tribunal to renew a Treatment Order that is applied for
pursuant to this clause.
Subclause 2 governs when an application for renewal is to be
made.
Subclause 3 sets out requirements in relation to applications
made pursuant to subclause 1. In particular the subclause
requires an application to be accompanied by:
A copy of the Treatment Order that the application is
seeking to renew, and
Details of any change that is sought to the treatment or
treatment setting specified in the Treatment Order, and
A statement from the applicant confirming that the patient
still meets the treatment criteria and explaining how it is
expected that they will continue to do so for the duration
of the renewal period. This requirement is intended to
ensure that an application is made only in relation to
patients who, despite having received treatment pursuant
to the Treatment Order, are still considered to meet the
treatment criteria, and for whom continued treatment
pursuant to an Order is considered to be necessary.
Subclause 4 requires an approved medical practitioner who
applies for a Treatment Order to be renewed to do certain
things including:
Give a copy of the application referred to in subclause 3,
to the patient, and
Give the patient a statement of rights in a form approved
by the Mental Health Tribunal. It is intended that the
statement would list the rights that the patient has
pursuant to the Act, including the right to appear and be
represented at a hearing to consider the renewal of the
Order, and
Give a copy of the application to persons including the
Chief Civil Psychiatrist. This is of relevance given the Chief
Civil Psychiatrist's ability to intervene in relation to
matters involving the general assessment and treatment of
patients including patients subject to Treatment Orders,
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pursuant to clause 147.
Subclauses 5, 6, 7 and 8 regulate matters relevant to the renewal
process.
Subclause 9 and 10 govern what the Tribunal is required to do,
on renewing a Treatment Order. This includes:
Notifying the patient that the Order has been renewed,
and
Giving the patient a statement of rights in a form approved
by the Mental Health Tribunal. It is intended that the
statement would list the rights that the patient has
pursuant to the Act, including the right to apply to the
Tribunal for any Treatment Order that is renewed to be
reviewed pursuant to clause 181, and
Notifying persons including the Chief Civil Psychiatrist,
that the Order has been renewed. This is relevant
because of the Chief Civil Psychiatrist's ability to intervene
in relation to matters involving the general assessment and
treatment of patients including patients subject to
Treatment Orders, pursuant to clause 147.
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Clause 49 Discharge of treatment order by medical practitioner or
Tribunal
This clause governs the discharge of a Treatment Order by a
medical practitioner, or the Tribunal.
Subclause 1 determines who a Treatment Order may be
discharged by.
Subclause 2 regulates discharge by an approved medical
practitioner.
Subclause 3 qualifies the operation of subclause 2 in situations
where the approved medical practitioner who discharges the
Treatment Order is not the patient's treating medical
practitioner. In this instance, the discharge may only occur if:
The approved medical practitioner has consulted with the
treating medical practitioner about whether or not the
patient meets the treating criteria, and
The treating medical practitioner agrees with the approved
medical practitioner's conclusion that the patient does not
meet the treatment criteria.
The intention is to require consultation to occur with the
medical practitioner who is, at the time of the consultation
referred to in subclause 3, the medical practitioner who is
responsible for the patient's treatment.
Subclauses 4 and 5 determines the actions that an approved
medical practitioner who discharges a Treatment Order is to
take, on discharging an Order.
Clause 50 Nature of treatment plan
This clause introduces the concept of treatment plans and
outlines what a treatment plan is.
Clause 51 Requirement for treatment plan
This clause obliges the Chief Civil Psychiatrist to ensure that
each involuntary patient has a treatment plan.
Clause 52 Form of treatment plan
This clause sets out the form that a treatment plan is to take.
Clause 53 Preparation of treatment plan
This clause sets out how a treatment plan is to be prepared.
Subclause 1 establishes who may prepare a treatment plan.
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Subclause 2 determines who the person preparing the treatment
plan is required to consult with. In particular:
Subclause 2(a) requires consultation to occur with the
patient for whom the plan is being prepared, and
Subclause 2(b) enables consultation to also occur with any
other persons that the person preparing the plan
considers appropriate in the circumstances, but only after
the patient has been consulted.
The intention is to provide the patient with the opportunity to
be informed of any intention to consult with other persons, so
that the patient can express their views about this. The
intention is not however to prevent consultation from occurring
with, for example, family members or other support persons of
the person for whom the plan is being prepared. Such persons
may have a good knowledge of the patient's mental health and
have information about the patient's treatment and care history
that would otherwise be unavailable to the person preparing the
plan.
This approach is consistent both with the Act's focus on
maximising consumer involvement in care and treatment
processes, and with mental health service delivery principle (k)
which is concerned with involving persons receiving services,
and their families and support persons, where this is appropriate,
in decision making. The clause attempts to balance patient
autonomy with the need to involve carers and family members in
a patient's treatment.
The amount and type of information that may be disclosed to a
person who is consulted pursuant to subclause 2(b) is limited by
the terms of clause 134.
Subclause 3 establishes the actions that a person who has
prepared a treatment plan pursuant to this clause, is to take. In
particular, the subclause requires a copy of the plan to be given
to the patient, and to the Chief Civil Psychiatrist.
Requiring the plan to be given to the Chief Civil Psychiatrist is
relevant given the Chief Civil Psychiatrist's ability to intervene in
relation to matters involving the general assessment and
treatment of patients including those for whom a plan has been
prepared, pursuant to clause 147.
Page 44 of 124
Clause 54 Variation of treatment plan
This clause sets out how a treatment plan prepared pursuant to
clause 53, may be varied.
Subclause 1 establishes who may vary a treatment plan.
Subclause 2 limits the variations that may be made pursuant to
subclause 1. The intention is to ensure that a patient's rights are
not restricted to any greater degree than is authorised by the
Treatment Order to which the patient is subject, and that any
decision to restrict a patient's rights is made by the Tribunal
pursuant to clause 39 or by a Tribunal member pursuant to
clause 38, at a hearing at which the patient has the right to
appear and be represented.
Subclause 3 determines who the person varying the treatment
plan is required to consult with. In particular:
Subclause 3(a) requires consultation to occur with the
patient for whom the plan is being prepared, and
Subclause 3(b) enables consultation to also occur with any
other persons that the person preparing the plan
considers appropriate in the circumstances, but only after
the patient has been consulted.
Subclause 4 establishes the actions that a person who has varied
a treatment plan pursuant to this clause, is to take. In particular,
the subclause requires a copy of the varied plan to be given to
the Chief Civil Psychiatrist and the Mental Health Tribunal and
for notice of the variation to be given to the patient.
Requiring a copy of the varied plan to be given to the Chief Civil
Psychiatrist is relevant given the Chief Civil Psychiatrist's ability
to intervene in relation to matters involving the general
assessment and treatment of patients including those for whom
a plan has been prepared, pursuant to clause 147.
Requiring a copy of the varied plan to be given to the Tribunal is
relevant given the relationship that exists between treatment
plans and Treatment Orders, and the Tribunal's role in making
and reviewing Orders pursuant to clauses 39 and 181
respectively.
Clause 55 Urgent circumstances treatment
This clause enables treatment to be given to an involuntary
patient, without informed consent or Mental Health Tribunal
authorisation if the treatment is authorised by the Chief Civil
Psychiatrist as being urgently needed in the patient's best
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interests.
The intention is to provide a mechanism for treatment which
would otherwise require Tribunal authorisation, in
circumstances where it is not possible to obtain that
authorisation. This may occur if, for example, it is not possible
to contact a member of the Tribunal so that an interim
Treatment Order may be made pursuant to clause 38 in
circumstances where a person subject to an Assessment Order
needs treatment which, if it were not given, would result in a
significant deterioration in the patient's mental health.
The intention is not however to supplant or replace the ability
for a patient to be given treatment that is needed in an
emergency, and that it would be permissible to give pursuant to
clause 40 of the Guardianship and Administration Act.
The matters that the Chief Civil Psychiatrist must be satisfied of
before authorising the treatment are set out in subclause 5.
Subclause 6 requires the Chief Civil Psychiatrist to advise the
Mental Health Tribunal of the authorisation. This would enable
the Mental Health Tribunal to, for example, enable a single
member of the Tribunal to consider an application that has been
made as soon as practicable pursuant to clause 38; or for the
Tribunal to consider reviewing any Treatment Order that may
already be in place with a view to determining the ongoing
suitability of the treatment that is authorised by the Order,
pursuant to clause 181.
Subclause 8 imposes certain obligations on an applicant for
urgent circumstances treatment. This includes giving the patient
a copy of the Chief Civil Psychiatrist's authorisation, together
with a statement of rights in a Chief Civil Psychiatrist approved
form. It is intended that the statement would list the rights that
the patient has pursuant to the Act, including the right to apply
to the Mental Health Tribunal for a review of the urgent
circumstances treatment pursuant to clause 186.
Subclause 9 sets out how long the urgent circumstances
treatment may be given for.
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Clause 56 Seclusion
This clause governs the seclusion of an involuntary patient in an
approved hospital.
Subclause 1 sets out the circumstances in which a patient may be
secluded. In particular the subclause requires:
If the patient is an adult for the seclusion to be
authorised by either the Chief Civil Psychiatrist, a medical
practitioner or an approved nurse, and
If the patient is a child for the seclusion be authorised by
the Chief Civil Psychiatrist only, and
For the person authorising the seclusion to be satisfied
that it is a reasonable intervention in the circumstances.
Subclause 2 determines the monitoring and oversight
arrangements that are to apply in relation to a patient who is
secluded, including:
A requirement that the patient be clinically observed at
least every 15 minutes, and
A requirement that the patient be examined by a medical
practitioner or approved nurse at least every four hours,
and
A requirement that the patient be examined by an
approved medical practitioner at least every 12 hours, and
A requirement that the patient not be secluded for more
than seven hours unless the extension is authorised by the
Chief Civil Psychiatrist.
Subclause 3 makes it clear that a patient's seclusion is to be
taken as continuing despite any observation or examination that
occurs pursuant to subclause 2 while subclause 4 makes it clear
that a patient is not to be secluded as a way of punishing the
patient, or because this is merely convenience.
Record keeping and reporting requirements associated with
seclusion are as outlined in clause 58.
The intention of the clause is to ensure that a patient is secluded
only when this is considered necessary and appropriate in all the
circumstances. This is consistent with national and international
approaches to seclusion which require seclusion to be used as a
last resort, given the highly restrictive and serious nature of the
practice. This is also consistent with the Act's Objects,
component (d) of which is to provide for the assessment,
treatment and care of persons with mental illnesses to be given
Page 47 of 124
in the least restrictive setting consistent with clinical need, legal
and judicial constraints, public safety and patient health, safety
and welfare and mental health service delivery principle (b)
which is to interfere with or restrict the rights of persons with
mental illness in the least restrictive way and to the least extent
consistent with the protection of those persons, the protection
of the public and the proper delivery of the relevant service.
Page 48 of 124
Clause 57 Restraint
This clause governs the placing of an involuntary patient in an
approved hospital or assessment centre, under chemical,
mechanical or physical restraint.
Subclause 1 establishes the circumstances in which a patient may
be placed under restraint. In particular the subclause requires:
In the case of chemical or mechanical restraint for the
restraint to be authorised by the Chief Civil Psychiatrist,
or
In the case of physical restraint of a child for the
restraint to be authorised by the Chief Civil Psychiatrist,
or
In the case of physical restraint of an adult for the
restraint to be authorised by the Chief Civil Psychiatrist, a
medical practitioner or an approved nurse, and
For the person authorising the restraint to be satisfied that
it is a reasonable intervention in the circumstances, and
In the case of mechanical restraint, for the means of
restraint to be authorised in advance by the Chief Civil
Psychiatrist.
Subclause 5 requires the Chief Civil Psychiatrist to issue standing
orders for the use of restraint. Subclause 1 requires any
restraint that is authorised to be managed in accordance with
those standing orders and any clinical guidelines that are
otherwise issued by the Chief Civil Psychiatrist.
Subclause 2 determines the oversight arrangements that are to
apply in relation to a patient who is placed under restraint,
including:
A requirement that the patient be clinically observed at
least every 15 minutes, and
A requirement that the patient be examined by a medical
practitioner or approved nurse at least every four hours,
and
A requirement that the patient be examined by an
approved medical practitioner at least every 12 hours, and
A requirement that the patient not be restrained for more
than seven hours unless this is authorised by the Chief
Civil Psychiatrist.
Subclause 3 makes it clear that a patient is not to be placed
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under restraint as a way of punishing the patient, or because this
is merely convenient.
Subclause 4 distinguishes restraint which is required to be
authorised by and pursuant to this clause, from the emergency
short-term, physical restraint of a patient to:
Prevent the person or patient from harming him or herself
or others, or
Prevent the person from damaging or interfering with the
facility's operation or the operation of any equipment, or
Break up a dispute or fight involving the patient for
example as may occur if persons involved in a physical
dispute are separated, or
Facilitate the patient's movement to or attendance at any
place, for any lawful purpose.
The intention is to ensure that the clause does not restrict:
The use of physical restraint to prevent immediate harm to
the patient or others and which is understood to be lawful
pursuant to common law, or
The use of force which may be necessary in escorting a
person to or from an approved facility or other place, and
which is permitted pursuant to the provisions of this Act
including Schedule 2 Custody and Escort Provisions.
Record keeping and reporting requirements associated with the
placing of an involuntary patient under restraint are as outlined
in clause 58.
The intention of the clause is to ensure that a patient is placed
under restraint only when this is considered necessary and
appropriate in all the circumstances. This is consistent with
national and international approaches to restraint which require
a person to be placed under restraint as a last resort, given the
highly restrictive and serious nature of the practice. This is also
consistent with the Act's Objects, component (d) of which is to
provide for the assessment, treatment and care of persons with
mental illnesses to be given in the least restrictive setting
consistent with clinical need, legal and judicial constraints, public
safety and patient health, safety and welfare and mental health
service delivery principle (b) which is to interfere with or
restrict the rights of persons with mental illness in the least
restrictive way and to the least extent consistent with the
protection of those persons, the protection of the public and the
proper delivery of the relevant service.
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In relation to chemical restraint the intention is to ensure that a
person subject to an Assessment Order or Treatment Order
may only be chemically restrained, as this term is defined in
clause 3, in certain narrow circumstances and when specifically
authorised, and that the use of chemical restraint in these
circumstances is transparent, is regulated, and is oversighted.
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Clause 58 Records, &c.
This clause governs record keeping in relation to seclusion and
restraint which is authorised pursuant to clauses 56 and 57
respectively.
In particular the clause requires records to be kept, and requires
a copy of records kept to be given to the Chief Civil Psychiatrist
and to the Mental Health Tribunal.
This is of relevance given:
The Chief Civil Psychiatrist's ability to intervene in relation
to the use of seclusion and the use of restraint pursuant to
clause 147, and
The Mental Health Tribunal's ability to review the use of
seclusion and restraint, pursuant to clause 187.
Clause 59 Transfer of involuntary patients between approved
hospitals
This clause governs the transfer of involuntary patients between
approved hospitals.
Subclause 1 sets out the circumstances in which the Chief Civil
Psychiatrist may direct that an involuntary patient be transferred
from one approved hospital to another.
Subclause 2 governs the form that any direction issued pursuant
to subclause 1 is to take.
Subclauses 3 and 4 imposes certain obligations on the Chief Civil
Psychiatrist including to give the patient being transferred a copy
of the transfer direction, together with a statement of rights in a
Chief Civil Psychiatrist approved form. It is intended that the
statement would list the rights that the patient has pursuant to
the Act, including the right to apply to the Mental Health
Tribunal for a review of the transfer pursuant to clause 190.
Subclauses 5 and 6 set out what a transfer direction is authority
for while subclause 7 clarifies matters regarding the custody of
the patient who has been transferred pursuant to this clause.
Clause 60 Leave of absence from approved hospital
This clause governs an involuntary patient's leave of absence
from an approved hospital.
Subclause 1 governs who may grant a patient leave of absence
from an approved hospital.
Subclause 2 determines the nature of the leave that may be
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granted.
Subclause 3 governs who may apply for a patient's leave for
personal reasons.
Subclause 4 imposes certain obligation on staff at approved
hospitals to assist an involuntary patient who wishes to apply for
leave.
Subclause 5 governs the form in which leave is to be granted
while subclauses 6, 7 and 8 jointly regulate the conditions that
may be attached to leave and provide for related matters.
Subclause 10 enables leave to be extended, varied or cancelled
while subclauses 11 and 12 clarify and regulate certain matters
relating to the extension, variation or cancellation of leave.
Subclauses 9 and 13 impose certain obligations on an approved
medical practitioner who grants, or refuses, an application for
leave including giving the patient a copy of the leave pass (if the
leave is granted) or notice of the refusal (if the leave is refused),
together with a statement of rights in a Chief Civil Psychiatrist
approved form. It is intended that the statement would list the
rights that the patient has pursuant to the Act, including the
right to apply to the Mental Health Tribunal for a review of
determinations relating to leave of absence pursuant to
clause 191.
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Clause 61 Failure to comply with condition of leave of absence
from approved hospital
This subclause governs matters relating to a patient's failure to
comply with a condition of a leave of absence from an approved
hospital, and other related matters.
Subclause 1 specifies the circumstances in which the actions
authorised by subclauses 2, 3 and 4, may be taken.
Clause 62 Rights of involuntary patients
This clause sets out the rights of involuntary patients, under and
pursuant to this Act.
Clause 63 Admission
This clause governs the admission of an involuntary patient to a
secure mental health unit and provides for related matters.
Subclause 1 and 2 jointly enable the Chief Forensic Psychiatrist
to authorise the admission of an involuntary patient who is being
detained in an approved hospital to a secure mental health unit
and set out the matters that the Chief Forensic Psychiatrist must
be satisfied of before authorising the admission. This includes
that:
The patient is a danger to him or herself, or to others,
because of his or her mental illness, and
The danger that the patient poses to him or herself has
become so serious that the patient's continued detention
in an approved hospital is untenable, and
A secure mental health unit is, in the circumstances, the
only appropriate place where the patient can be safely
detained.
The intention is to ensure that only involuntary patients who
cannot continue to be safely detained in an approved hospital,
are admitted to a secure mental health unit. This is because of
the highly restrictive nature of secure mental health units and
the significant increase in restrictions on rights that patients
accommodated in such units experience. The intention is to
ensure that involuntary patients are only detained in such an
environment when the impact on the person's rights, of being
detained in that environment, is outweighed by the danger that
the patient would continue to pose to him or herself if he or she
were not detained in a secure mental health unit.
Subclause 2 determines what the Chief Forensic Psychiatrist
Page 54 of 124
must be satisfied of, before being able to admit a patient who is a
child to a secure mental health unit, pursuant to subclause 1.
Specifically, the Chief Forensic Psychiatrist must be satisfied that
the child can be detained separately from adults, and that the
probable benefits of accommodating the patient in a secure
mental health unit outweigh the probable risks.
Subclause 3 clarifies and confirms the ability for an involuntary
patient admitted to a secure mental health unit pursuant to this
clause, to be treated under the authority of any Treatment
Order to which they may be subject. This is of relevance given
the inclusion of specific provisions in the Act which enable the
Mental Health Tribunal to authorise treatment for forensic
patients and is intended to provide clarity in respect of this
matter.
The clause is not intended to apply to the admission of an
involuntary patient who is also a prisoner or youth detainee.
The admission of prisoners to the secure mental health unit is
regulated by and pursuant to the provisions of the Corrections
Act 1997 while the admission of youth detainees to the secure
mental health unit is regulated by and pursuant to the provisions
of the Youth Justice Act 1997. The intention is to require the
admission of such persons to continue to be regulated by and
pursuant to the provisions of those Acts.
Page 55 of 124
Clause 64 Admissions procedure, extensions and transfer
Subclause 1 governs the admission, extension of admission and
transfer of involuntary patients admitted to a secure mental
health unit pursuant to clause 63.
Subclause 1 requires the Chief Forensic Psychiatrist to:
Determine how long the involuntary patient may be
detained in a secure mental health unit for, and
Give the patient notice of his or her admission, together
with a statement of rights in a Chief Forensic Psychiatrist
form. It is intended that the statement would list the rights
that the person has pursuant to the Act, while detained in
a secure mental health unit, including the right to apply to
the Mental Health Tribunal for a review of his or her
admission to the secure mental health unit pursuant to
clause 182, and
Give notice of the admission to the Mental Health
Tribunal. This is of relevance given the requirement for
the Tribunal to review the admission pursuant to
clause 182.
Subclauses 2, 3 and 4 govern the extension of a period of
admission determined pursuant to subclause 1 and provide for
related matters. In particular, subclause 4 requires the Chief
Forensic Psychiatrist to notify the patient of any extension made
under subclause 2, and the reasons for it, along with a statement
of rights in a Chief Forensic Psychiatrist approved form. It is
intended that the statement would list the rights that the person
has pursuant to the Act, while detained in a secure mental health
unit, including the right to apply to the Mental Health Tribunal
for a review of his or her admission to the secure mental health
unit pursuant to clause 182. The Chief Forensic Psychiatrist is
also required to notify the Tribunal of any extension that is
made.
Subclauses 5, 6, 7, 8 and 9 regulate the return of an involuntary
patient who has been admitted to a secure mental health unit
pursuant to clause 63, to an approved hospital.
Clause 65 Period of detention
This clause governs the period of time for which an involuntary
patient who has been transferred to a secure mental health unit
pursuant to clause 63 may be detained in the secure mental
health unit.
Page 56 of 124
Clause 66 Admitted involuntary patient to be treated as a forensic
patient for certain purposes
This clause governs how the provisions of the Act which apply
to forensic patients, apply to involuntary patients who have been
transferred to a secure mental health unit pursuant to clause 63.
Clause 67 Leave of absence for involuntary SMHU patient
This clause modifies the provisions contained within Division 6
of Part 4 of the Act in their application to involuntary patients
who have been transferred to a secure mental health unit
pursuant to clause 63.
Part 4 Admission and Custody of Forensic Patients
This Part governs the admission and custody of forensic patients,
and provides for related matters.
Clause 68 Admission
This clause provides for the admission of a number of categories
of people to a secure mental health unit and confirms that a
person who is admitted to a secure mental health unit pursuant
to this section, is a forensic patient for the purposes of the Act.
Clause 69 Period of detention
This clause clarifies the period of time for which a person who
has been admitted to a secure mental health unit pursuant to
clause 68, may be detained in such a unit.
Clause 70 Certain forensic patients may request return to prison,
&c
This clause provides a mechanism for prisoners and youth
detainees whose removal to a secure mental health unit was on
the request of the prisoner or youth detainee, to ask to be
returned to prison or youth detention.
The clause regulates how such a request should be made and
imposes certain obligations on the Chief Forensic Psychiatrist in
relation to requests that are made.
Subclause 9 applies in the event that a request is refused. That
subclause requires the Chief Forensic Psychiatrist to give notice
of any refusal to the patient, along with reasons for the refusal
and a statement of rights in a Chief Forensic Psychiatrist
approved form. It is intended that the statement would list the
rights that the person has pursuant to the Act, including the
right to apply to the Mental Health Tribunal for a review of the
Page 57 of 124
refusal to return the patient to prison or youth detention,
pursuant to clause 183.
Page 58 of 124
Clause 71 Custody
This clause governs matters relevant to a forensic patient's
custody while the patient is admitted to a secure mental health
unit.
Clause 72 Transfer of forensic patients between SMHUs
This clause regulates the transfer of a forensic patient between
secure mental health units.
Subclause 1 sets out the circumstances in which the Chief
Forensic Psychiatrist may direct that a forensic patient be
transferred from one secure mental health unit to another.
Subclause 2 governs the form that any direction issued pursuant
to subclause 1 is to take.
Subclauses 3 and 4 jointly impose certain obligations on the
Chief Forensic Psychiatrist including to give the patient being
transferred a copy of the transfer direction, together with a
statement of rights in a Chief Forensic Psychiatrist approved
form. It is intended that the statement would list the rights that
the patient has pursuant to the Act, including the right to apply
to the Mental Health Tribunal for a review of the transfer
pursuant to clause 190.
Subclauses 5 and 6 jointly set out what a transfer direction is
authority for while subclause 7 clarifies matters regarding the
custody of the patient who has been transferred pursuant to this
clause.
Clause 73 Transfer of forensic patients to hospitals, &c.
This clause regulates the transfer of a forensic patient from a
secure mental health unit to a secure institution, an approved
hospital, a health service within the meaning of the Health
Complaints Act 1995 or premises where such a health service is
provided.
Subclause 1 enables the Chief Forensic Psychiatrist to direct that
a forensic patient be removed from a secure mental health unit
and transferred to a secure institution, an approved hospital, a
health service within the meaning of the Health Complaints
Act 1995 or premises where such a health service is provided.
Subclauses 2 and 3 jointly govern the form that any direction
issued pursuant to subclause 1 is to take.
Subclauses 4 and 5 jointly set out what a transfer direction is
authority for and provides the person escorting the patient with
Page 59 of 124
certain authorities.
Subclause 6 imposes certain obligations on the Chief Forensic
Psychiatrist including to give the patient being transferred a copy
of the transfer direction, together with a statement of rights in a
Chief Forensic Psychiatrist approved form. It is intended that
the statement would list the rights that the patient has pursuant
to the Act, including the right to apply to the Mental Health
Tribunal for a review of the transfer pursuant to clause 190.
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Clause 74 Application of Part to places other than SMHUs
This clause clarifies how the provisions of Part 4 of Chapter 2 of
this Act are to apply to a forensic patient while he or she is in a
secure institution, an approved hospital, a health service within
the meaning of the Health Complaints Act 1995 or premises
where such a health service is provided, or another place.
Clause 75 Return of forensic patient in Tasmania to SMHU
This clause regulates the return of certain forensic patients
including those who have absconded from the custody of the
controlling authority of a secure mental health unit, to the
secure mental health unit.
Clause 76 Return of forensic patient outside Tasmania to SMHU
This clause regulates the return of certain forensic patients, that
a Magistrate is satisfied should be in the custody of the
controlling authority of a secure mental health unit, and where
there are reasonable grounds to suspect that the patient has
absconded from that custody and is no longer in Tasmania, to
the secure mental health unit.
Clause 77 Definitions for this Division
This clause defines terms used in Division 5 of Part 4 of
Chapter 2 of this Act.
Clause 78 When leave of absence for forensic patients subject to
restriction orders may be granted
This clause governs leave of absence for forensic patients subject
to restriction orders.
Subclause 1 governs who may grant a forensic patient who is
subject to a restriction order, leave of absence from a secure
mental health unit.
Subclauses 2, 3 and 4 determine the nature of the leave that may
be granted and regulate matters relevant to an application for
leave.
Subclause 5 imposes certain obligations on staff at secure mental
health units to assist a forensic patient who is subject to a
restriction order, and who wishes to apply for leave.
Subclause 6 governs how leave may be granted.
Subclauses 7 and 8 jointly impose certain obligations on the
Tribunal and the Secretary (Corrections) in relation to eligible
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persons and other persons who the Tribunal considers should
be notified of an application that has been made pursuant to this
clause.
Subclauses 9, 10 and 11 jointly regulate matters relevant to
conditions that may be attached to leave and provide for related
matters.
Subclauses 11 and 13 impose certain obligations on the Chief
Forensic Psychiatrist and the Tribunal in relation to leave that is
granted or refused, including giving the patient a copy of relevant
records and, in relation to the Tribunal, a statement of rights in
a Mental Health Tribunal approved form. It is intended that the
statement would list the rights that the patient has pursuant to
the Act, including the right to apply to the Mental Health
Tribunal for a review of determinations relating to leave of
absence pursuant to clause 191.
Page 62 of 124
Clause 79 Extension, variation and cancellation of leave of absence
This clause governs the extension, variation and cancellation of
leave of absence that has been granted pursuant to clause 78.
In particular, subclause 7 clause enables a patient's leave to be
cancelled, by notice to the patient, if a responsible authority
reasonably believes that the continuation of the leave would, or
is likely to, seriously endanger the patient's health or safety, or
place the safety of other persons at serious risk.
Clause 80 Victims to be notified of leave of absence of patient
This clause establishes a mechanism for certain eligible persons
to be notified of leave that is granted pursuant to clause 78,
before the leave is taken.
Clause 81 Definitions for this Division
This clause defines terms used in Division 6 of Part 4 of
Chapter 2 of this Act.
Clause 82 When leave of absence for forensic patients not subject
to restriction orders may be granted
This clause governs leave of absence for forensic patients who
are not subject to restriction orders.
Subclause 1 governs who may grant a forensic patient who is not
subject to a restriction order, leave of absence from a secure
mental health unit.
Subclauses 2, 3, 4 and 6 determine the nature of the leave that
may be granted and regulate matters relevant to an application
for leave.
Subclause 5 imposes certain obligations on staff at secure mental
health units to assist a forensic patient who is subject to a
restriction order, and who wishes to apply for leave.
Subclauses 7, 8 and 9 jointly impose certain obligations on the
Chief Forensic Psychiatrist and the Secretary (Corrections) in
relation to eligible persons, the Director (Corrections) and the
Secretary (Youth Justice) and other persons who the Chief
Forensic Psychiatrist considers should be notified of an
application that has been made pursuant to this clause.
Subclause 10, 11 and 12 govern matters relevant to conditions
that may be attached to leave and provide for related matters.
Subclauses 13 and 14 impose certain obligations on the treating
medical practitioner and Chief Forensic Psychiatrist in relation to
Page 63 of 124
leave that is granted or refused.
Page 64 of 124
Clause 83 Extension, variation and cancellation of leave of absence
This clause governs the extension, variation and cancellation of
leave of absence that has been granted pursuant to clause 82.
In particular, subclause 5 enables a patient's leave to be
cancelled, by notice to the patient, if a responsible authority
reasonably believes that the continuation of the leave would, or
is likely to, seriously endanger the patient's health or safety, or
place the safety of other persons at serious risk.
Clause 84 Victims to be notified of leave of absence of patient
This clause establishes a mechanism for certain eligible persons
to be notified of leave that is granted pursuant to clause 82,
before the leave is taken.
Part 5 Treatment and Management of Forensic Patients
This Part governs the treatment and management of forensic
patients, and provides for related matters.
Clause 85 Interpretation of Part
This clause defines terms used in Part 5 of Chapter 2 of this Act.
Clause 86 Application of Part to places other than SMHUs
This clause clarifies how the provisions of Part 5 of Chapter 2 of
this Act are to apply to a forensic patient who is being detained
in a secure institution, an approved hospital, a health service
within the meaning of the Health Complaints Act 1995 or
premises where such a health service is provided or other place.
In particular subclause 3 modifies the operation of clause 113
subclause 1 as it applies to a health service within the meaning of
the Health Complaints Act 1995 or premises where such a health
service is provided or other place, given the use of such facilities
for purposes other than the detention of forensic patients and
by persons other than forensic patients and the need to ensure
that the regulation imposed by clause 113, does not apply more
broadly than is intended.
Clause 87 Urgent circumstances treatment
This clause enables treatment to be given to a forensic patient,
without informed consent or Mental Health Tribunal
authorisation if the treatment is authorised by the Chief
Forensic Psychiatrist as being urgently needed in the patient's
best interests.
Page 65 of 124
The intention is to provide a mechanism for treatment which
would otherwise require Tribunal authorisation, in
circumstances where it is not possible to obtain that
authorisation. This may occur if, for example, it is not possible
to contact a member of the Tribunal so that treatment may be
authorised pursuant to clause 91 in circumstances where the
patient needs treatment which, if it were not given, would result
in a significant deterioration in the patient's health.
The intention is not however to supplant or replace the ability
for a patient to be given treatment that is needed in an
emergency, and that it would be permissible to give pursuant to
clause 40 of the Guardianship and Administration Act 1995.
The matters that the Chief Forensic Psychiatrist must be
satisfied of before authorising the treatment are set out in
subclause 5.
Subclause 6 requires the Chief Forensic Psychiatrist to advise the
Mental Health Tribunal of the authorisation. This would allow
the Mental Health Tribunal to, for example, determine that a
single member of the Tribunal should consider an application for
authorisation of treatment pursuant to clause 91 as soon as
practicable. For forensic patients who are subject to Treatment
Orders the advice may enable the Tribunal to review the
subsisting Treatment Order with a view to determining the
ongoing suitability of the treatment that is authorised by the
Order, pursuant to clause 181.
Subclause 8 imposes certain obligations on an applicant for
urgent circumstances treatment. This includes giving the patient
a copy of the Chief Forensic Psychiatrist's authorisation,
together with a statement of rights in a Chief Forensic
Psychiatrist approved form. It is intended that the statement
would list the rights that the patient has pursuant to the Act,
including the right to apply to the Mental Health Tribunal for a
review of the urgent circumstances treatment pursuant to
clause 186.
Subclause 9 sets out how long the urgent circumstances
treatment may be given for.
Page 66 of 124
Clause 88 Authorisation of treatment by Tribunal
This clause provides authority for the Mental Health Tribunal to
authorise treatment for a forensic patient.
Subclause 1 sets out the matters that the Mental Health Tribunal
must be satisfied of before authorising treatment for a forensic
patient. The criteria referred to in subclause 1 are substantively
reflective of the treatment criteria outlined in clause 40.
Subclause 2 requires the Tribunal to consider the application by
way of a hearing at which the patient has the right to appear, and
be represented, before a division of the Tribunal constituted by
three members.
Subclause 3 provides authority for the Tribunal to authorise
treatment conditionally or unconditionally.
Subclause 4 governs the form that an authorisation issued
pursuant to this clause is to be in.
Subclause 5 imposes certain obligations on the Tribunal including
giving a copy of the authorisation and a statement of rights in a
Mental Health Tribunal approved form, to the forensic patient
for whom treatment has been authorised pursuant to this clause.
It is intended that the statement would list the rights that the
patient has pursuant to the Act, including the right to apply to
the Mental Health Tribunal for a review of the matter pursuant
to clause 193.
Clause 89 Discharge of Tribunal treatment authorisation
This clause provides for the discharge of an authorisation
pursuant to clause 88.
Clause 90 Authorisation becomes treatment order when patient
ceases to be a forensic patient
This clause enables an authorisation made under clause 88 to
effectively become a Treatment Order at such time as the
patient to whom the authorisation made under clause 88 relates
ceases to be a forensic patient.
This clause is intended to provide continuity of authorisation of
treatment for forensic patients who are discharged from the
secure mental health unit to another setting, including to the
community or if the patient is returned to prison or youth
detention, with a view to avoiding the need to apply for a
Treatment Order for persons who have already been
determined, by the Mental Health Tribunal, to meet the criteria
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referred to in subclause 1 of clause 88.
Page 68 of 124
Clause 91 Interim authorisation of treatment by Tribunal member
This clause provides authority for a single member of the Mental
Health Tribunal to authorise treatment for a forensic patient on
an interim basis.
Subclause 1 sets out the matters that the single member of the
Tribunal must be satisfied of, before authorising treatment for a
forensic patient, including that:
The criteria referred to in clause 88 subclause 1(b), (c), (d)
and (e) are satisfied, and
The Tribunal cannot immediately determine the
application, and
Achieving the treatment outcomes would be compromised
by waiting for the treatment to be authorised by the
Tribunal pursuant to clause 88.
The intention is for interim authorisation to be sought, and
given, only when necessary and in circumstances where it is not
feasible to wait for a Tribunal decision under clause 88.
Subclause 2 confirms the Tribunal member's ability to authorise
treatment on the basis of an application alone, and without
conducting a hearing or engaging in any further investigation into
the matter. The intention is to ensure that the Tribunal
member may authorise the treatment quickly and on the basis of
the information presented to him or her, if this is considered to
be needed in the circumstances.
Subclauses 4, 5 and 11 jointly require the Tribunal member to
advise the patient and others of the authorisation, and provide
for related matters.
Subclause 6 provides the Tribunal member or the Tribunal with
the authority to revoke or vary an authorisation given pursuant
to this clause at any time, while subclauses 7, 8 and 11 jointly set
out the actions that are to be taken in the event that the
authorisation is so revoked or varied.
Subclauses 9 and 10 are concerned with how long an
authorisation made under this clause has effect for. In particular,
subclause 10 provides that an authorisation made under this
clause lapses after 14 days if, by then, the Tribunal has not
determined the matter under clause 88.
Clause 92 Interpretation of Division
This clause defines terms used in Division 3 of Part 5 of
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Chapter 2 of this Act.
Page 70 of 124
Clause 93 Force
This clause regulates the application of force to a forensic
patient.
Subclause 1 sets out the circumstances in which force may be
applied.
Subclause 2 makes it clear that the clause is not intended to give
any authority for force to be applied to a forensic patient as a
means of punishment, or because this is merely convenient.
Subclause 3 sets out who is authorised, by the Act, to apply
force pursuant to this clause.
Clause 94 Seclusion
This clause governs the seclusion of a forensic patient.
Subclause 1 sets out the circumstances in which a patient may be
secluded. In particular the subclause requires:
If the patient is an adult for the seclusion to be
authorised by either the Chief Forensic Psychiatrist, a
medical practitioner or an approved nurse, and
If the patient is a child for the seclusion be authorised by
the Chief Forensic Psychiatrist only, and
For the person authorising the seclusion to be satisfied
that it is a reasonable intervention in the circumstances.
Subclause 2 determines the oversight arrangements that are to
apply in relation to a patient who is secluded, including:
A requirement that the patient be clinically observed at
least every 15 minutes, and
A requirement that the patient be examined by a medical
practitioner or approved nurse at least every four hours,
and
A requirement that the patient be examined by an
approved medical practitioner at least every 12 hours, and
A requirement that the patient not be secluded for more
than seven hours unless this is authorised by the Chief
Forensic Psychiatrist.
Subclause 3 makes it clear that a patient's seclusion is to be
taken as continuing despite any observation or examination that
occurs pursuant to subclause 2 while subclause 4 makes it clear
that a patient is not to be secluded as a way of punishing the
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patient, or because this is merely convenient.
Record keeping and reporting requirements associated with the
seclusion of forensic patients are as outlined in clause 96.
The intention of the clause is to ensure that a patient is secluded
only when this is considered necessary and appropriate in all the
circumstances. This is consistent with national and international
approaches to seclusion which require seclusion to be used as a
last resort, given the highly restrictive and serious nature of the
practice. This is also consistent with the Act's Objects,
component (d) of which is to provide for the assessment,
treatment and care of persons with mental illnesses to be given
in the least restrictive setting consistent with clinical need, legal
and judicial constraints, public safety and patient health, safety
and welfare and mental health service delivery principle (b)
which is to interfere with or restrict the rights of persons with
mental illness in the least restrictive way and to the least extent
consistent with the protection of those persons, the protection
of the public and the proper delivery of the relevant service.
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Clause 95 Restraint
This clause governs the placing of a forensic patient under
chemical, mechanical or physical restraint.
Subclause 1 establishes the circumstances in which a patient may
be placed under restraint. In particular the subclause requires:
In the case of chemical or mechanical restraint for the
restraint to be authorised by the Chief Forensic
Psychiatrist, or
In the case of physical restraint of a child for the
restraint to be authorised by the Chief Forensic
Psychiatrist, or
In the case of physical restraint of an adult for the
restraint to be authorised by the Chief Forensic
Psychiatrist, a medical practitioner or an approved nurse,
and
For the person authorising the restraint to be satisfied that
it is a reasonable intervention in the circumstances, and
In the case of mechanical restraint, for the means of
restraint to be authorised in advance by the Chief Forensic
Psychiatrist.
Subclause 5 requires the Chief Forensic Psychiatrist to issue
standing orders for the use of restraint. Subclause 1 requires
any restraint that is authorised to be managed in accordance
with those standing orders and any clinical guidelines that are
otherwise issued by the Chief Forensic Psychiatrist.
Subclause 2 determines the oversight arrangements that are to
apply in relation to a patient who is placed under restraint,
including:
A requirement that the patient be clinically observed at
least every 15 minutes, and
A requirement that the patient be examined by a medical
practitioner or approved nurse at least every four hours,
and
A requirement that the patient be examined by an
approved medical practitioner at least every 12 hours, and
A requirement that the patient not be restrained for more
than seven hours unless this is authorised by the Chief
Forensic Psychiatrist.
Subclause 3 makes it clear that a patient is not to be placed
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under restraint as a way of punishing the patient, or because this
is merely convenient.
Subclause 4 distinguishes restraint which is required to be
authorised by and pursuant to this clause, from the emergency,
short-term, physical restraint of a patient to:
Prevent the patient from harming him or herself or others,
or
Prevent the patient from damaging, or interfering with, the
facility's operation or the operation of any equipment, or
Break up a dispute or fight involving the patient for
example as may occur if persons involving a physical
dispute are separated, or
Facilitate the patient's movement to or attendance at any
place, for any lawful purpose.
The intention is to ensure that the clause does not restrict:
The use of force authorised pursuant to clause 93, or
The use of force which may be necessary in escorting a
patient to or from an approved facility or other place, and
which is permitted pursuant to the provisions of this Act
including Schedule 2 Custody and Escort Provisions.
Record keeping and reporting requirements associated with the
placing of a forensic patient under restraint are as outlined in
clause 96.
The intention of the clause is to ensure that a patient is placed
under restraint only when this is considered necessary and
appropriate in all the circumstances. This is consistent with
national and international approaches to restraint which require
a person to be placed under restraint as a last resort, given the
highly restrictive and serious nature of the practice. This is also
consistent with the Act's Objects, component (d) of which is to
provide for the assessment, treatment and care of persons with
mental illnesses to be given in the least restrictive setting
consistent with clinical need, legal and judicial constraints, public
safety and patient health, safety and welfare and mental health
service delivery principle (b) which is to interfere with or
restrict the rights of persons with mental illness in the least
restrictive way and to the least extent consistent with the
protection of those persons, the protection of the public and the
proper delivery of the relevant service.
In relation to chemical restraint the intention is to ensure that a
forensic patient may only be chemically restrained, as this term
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is defined in clause 3, in certain narrow circumstances and when
specifically authorised, and that the use of chemical restraint in
these circumstances is transparent, is regulated, and is
oversighted.
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Clause 96 Records
This clause governs record keeping in relation to the use of
force which is authorised pursuant to clause 93, and seclusion or
restraint which is authorised pursuant to clauses 94 and 95
respectively.
In particular the clause requires records to be kept, and requires
a copy of records kept to be given to the Chief Forensic
Psychiatrist and to the Mental Health Tribunal.
This is of relevance given:
The Chief Forensic Psychiatrist's ability to intervene in
relation to the use of seclusion and the use of restraint
pursuant to clause 147, and
The Mental health Tribunal's ability to review the use of
seclusion and restraint, pursuant to clause 187.
Clause 97 Patient visiting rights
This clause sets out the rights of forensic patients to receive, and
refuse to receive, visitors.
Clause 98 Privileged visitors, callers and correspondents
This clause identifies who is a privileged visitor, privileged caller
or privileged correspondent, for the purposes of this Act.
Clause 99 Entry of visitors
This clause regulates the entry of visitors, including privileged
visitors, to a secure mental health unit and makes it an offence
for a visitor to fail to comply with directions given by a
responsible official.
Clause 100 Visitor identity
This clause enables visitors including privileged visitors seeking
to enter a secure mental health unit to be required to provide
proof of identity or status.
Clause 101 Visitor information
This clause enables visitors other than privileged visitors seeking
to enter a secure mental health unit to be required to provide
certain information.
Clause 102 Refusal of visits
This clause regulates the refusal of visits and makes it an offence
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for a person to fail to comply with a responsible official's
direction.
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Clause 103 Termination of visits
This clause sets out the circumstances in which a visit may be
terminated and makes it an offence for a visitor, including a
privileged visitor, to fail to comply with a direction given by a
responsible official, pursuant to this clause.
Clause 104 Arrest, &c. of visitors who fail to comply with directions
This clause sets out the circumstances in which a visitor who
fails to comply with a direction issued under clauses 99, 102 or
103 may be removed from a secure mental health unit or
detained until the visitor can be arrested by the police.
The clause also provides authority for a police officer to arrest a
person to whom the clause applies, without a warrant.
Clause 105 Police visits
This clause governs visits by police.
Clause 106 Patient telephone rights
This clause sets out the rights of a forensic patient to make or
refuse to make, and to receive or refuse to receive, telephone
calls.
The clause clarifies the circumstances in which a responsible
official may refuse to allow a patient to make or receive a
telephone call.
The clause requires a person who makes or who wishes to
make a telephone call to a patient, including a privileged caller,
to provide certain information and enables a responsible official
to refuse to allow a telephone call to be made or to continue if
the information is not given.
Clause 107 Patient correspondence rights
This clause sets out the rights of a forensic patient to send or
refuse to send, and to receive or refuse to receive, mail.
The clause clarifies the circumstances in which a responsible
official may refuse to allow a patient to send or receive mail.
The clause provides authority for any mail sent to or received by
the patient, other than mail sent to or by a privileged
correspondent, to be opened and read.
Clause 108 Further rights of forensic patients
This clause sets out the rights of forensic patients, under and
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pursuant to this Act.
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Clause 109 Authorisation of persons
This clause provides the Chief Forensic Psychiatrist or the
controlling authority of a secure mental health unit with the
ability to authorise a person or a member of a class of persons
for certain provisions of the Act.
Clause 110 Screening of persons seeking entry to SMHU
This clause enables the Chief Forensic Psychiatrist or controlling
authority of a secure mental health unit to require persons
seeking to enter the secure mental health unit to be screened,
and to refuse to allow persons who refuse to be screened, into
the unit.
Clause 111 Searches
This clause governs the performance of searches.
The clause determines the circumstances in which a search may
be performed, and who may authorise a search.
Importantly the clause requires searches that involving touching
or undressing of a person, or touching a person's clothing or
personal belongings to be carried out by an authorised person of
the same gender as the person being searched and only in the
presence of persons of the same gender; and in privacy.
Clause 112 Seizure
This section provides for items to be seized following a search
conducted under clause 111.
Clause 113 Certain things not to be brought into SMHU
This clause makes it an offence for certain items to be brought
into or sent into a secure mental health unit, and enables a
person who is found to have brought or sent such an item into a
unit to be arrested by a police officer without a warrant.
Clause 114 Records, &c.
This clause governs record keeping in relation to matters
including searches, detention and arrests, seizure, police visits
and the exercise of telephone, correspondence and visiting
rights.
Clause 115 Interpretation of Division
This clause defines terms used in Division 8 of Part 5 of
Chapter 2 of this Act.
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Clause 116 Bringing patients before courts
This clause provides a mechanism to bring a forensic patient
before a court if the patient is charged with a new offence.
Clause 117 Presence at taking of certain depositions
This clause enables a forensic patient to be present at the taking
of a deposition in certain circumstances.
Clause 118 Court may proceed in absence of forensic patient, &c.
This clause provides for a court to be able to proceed in the
absence of the forensic patient if the patient is legally
represented or for the hearing or proceedings to be held in any
place the court considers appropriate.
Clause 119 Notifying victims of final release, &c.
This clause provides for eligible persons to be notified before a
forensic patient is released or transferred from a secure mental
health unit.
Clause 120 Application of Corrections Act 1997 to forensic patients
who are prisoners
This clause determines how the Corrections Act 1997 applies to
forensic patients who are prisoners.
Clause 121 Preservation of royal prerogative of mercy
This section preserves the royal prerogative of mercy for
forensic patients who are also prisoners.
Part 6 Special Psychiatric Treatment
This Part governs special psychiatric treatment.
Clause 122 Meaning of special psychiatric treatment
This clause defines special psychiatric treatment for the purposes
of the Act as:
Psychosurgery; or
Any treatment declared by the regulations, to be special
psychiatric treatment.
Psychosurgery is defined further in subclause 2.
Clause 123 Application of Part
This clause governs who the Part applies to.
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Clause 124 Restriction on provision of special psychiatric treatment
This clause makes it an offence to give a patient special
psychiatric treatment unless:
The treatment has been authorised by the Mental Health
Tribunal pursuant to clause 125, and
Informed consent has been given for the treatment, if the
treatment is:
Psychosurgery, or
A treatment which the regulations specify requires
informed consent.
Clause 125 Clinical restriction on authorisation of special
psychiatric treatment
This clause enables the Mental Health Tribunal to authorise
special psychiatric treatment in certain circumstances.
Subclause 1 requires the Mental Health Tribunal, a Chief
Psychiatrist, an independent expert and an approved medical
practitioner to all be of the view that:
The person for whom the authorisation has been sought
has a mental illness that is amenable to the special
psychiatric treatment that is proposed, and
The special psychiatric treatment is a reasonable and
appropriate treatment for the patient having regard to the
patient's condition and treatment history and the risks and
benefits of the special psychiatric treatment, and
The treatment is necessary for the patient's health or
safety or the safety of other persons.
The Mental Health Tribunal is also required to be satisfied that
informed consent has been given for the treatment, if the
treatment is psychosurgery or a treatment which the regulations
specify requires informed consent.
Clause 126 Procedural restriction on authorisation of special
psychiatric treatment
This clause requires the Mental Health Tribunal to consider
whether or not to authorise special psychiatric treatment at a
hearing held before at least three members, and on the
unanimous vote of all members.
This is relevant given the terms of clause 171 and clause 1 of
Part 5 of Schedule 4, which enable the Tribunal to determine a
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matter by majority. The intention is to prevent the Tribunal
from both considering the matter before less than three
members, and from determining the matter by majority.
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Clause 127 Tribunal obligations regarding authorisations
This clause provides for the matters that the Tribunal must
ensure are specified in an authorisation issued under clause 125.
The clause also requires a copy of the authorisation to be given
to the patient, and to the Chief Civil or Chief Forensic
Psychiatrist (depending on the patient's status).
Clause 128 Records, &c.
This clause governs record keeping in relation to special
psychiatric treatment.
Part 7 Information
This clause establishes to whom certain information must or
may be given. The intention is to balance the need for decisions
made by patients with the ability to decide to whom they wish
information to be given, with the need to ensure that
information may be given to persons other than the patient, in
certain specified circumstances, without the patient's consent.
Part 7 Information
This Part governs matters relevant to information.
Clause 129 Statements of rights on admission and discharge
This clause requires a statement of rights to be given to every
person who is:
Admitted to an approved facility as a patient, and
Discharged from an approved facility.
This is in addition to the requirement in various other provisions
of the Act for statements of rights to be given.
The intention is to ensure that patients are informed of the
rights that they have under the Act at each key transition point,
as a means of ensuring that the person is equipped to exercise
their rights in as full a manner as possible.
It is intended that the statement given to the person at this point
would list the rights that the person has pursuant to the Act,
along with any other rights that the person may have including
the right to apply to the Mental Health Tribunal for the a review
of any Treatment Order to which the person may be subject,
pursuant to clause 181.
Clause 130 Notification of certain admissions, transfers and
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discharges
This clause requires efforts to be made to provide notification of
a patient or prospective patient's actual or impending admission
to, discharge from or transfer between approved facilities or
other places under this Act, to at least one of the following
persons:
A representative or support person of the patient; or
Any other person that the controlling authority reasonably
regards as having a proper interest in the patient's welfare
for example a family member or, if the patient is a child,
the patient's parent.
The clause makes it clear that the notification may be given over
any objection by the patient, but only if:
An approved medical practitioner advises that the
notification would be desirable having regard to the
patient's health or safety or the safety of other persons, or
The Tribunal directs the controlling authority to give the
notification.
The intention is to ensure that at least one other person is
aware of the patient or impending patient's location, and to
enable this to occur in certain circumstances despite any
objection raised by the patient.
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Clause 131 Notification of certain leave and unlawful absences
This clause requires efforts to be made to provide notification of
matters relevant to a patient's leave, to at least one of the
following persons:
A representative or support person of the patient; or
Any other person that the controlling authority reasonably
regards as having a proper interest in the patient's welfare.
Notification of a person's impending leave of absence may be
given only where the patient raises no objection. Notification of
other matters specified in the clause may however be given
regardless of the patient's objection to this occurring.
The intention is to ensure that at least one other person is
aware of the patient's location, in relation to impending leave of
absence unless the patient objects to this occurring, and of other
matters relevant to the patient's leave in the event that the
patient has absconded or has contravened a condition of leave,
and to enable notification of other matters relevant to the
patient's leave to be given in certain circumstances despite any
objection raised by the patient.
Clause 132 Withholding, &c., of information by mental health
authorities
This clause enables certain information that, if disclosed or
disclosed fully to the patient, could reasonably be expected to
seriously harm the patient's health or safety, or seriously
compromise the patient's care or treatment, or place the safety
of other persons at risk, to be withheld or qualified, or for
disclosure to be deferred, in certain circumstances.
The clause requires the withholding of information pursuant to
this clause to be recorded, and for notice of the withholding,
deferral or qualification to be given to the Tribunal and, if
relevant, the Chief Civil or Chief Forensic Psychiatrist.
This is of relevance given:
The ability for a Chief Psychiatrist to intervene in relation
to the giving or withholding of patient information
pursuant to clause 147, and
The Mental Health Tribunal's ability to review withholding
of information from a patient, pursuant to clause 189, and
the requirement for this to occur if applied for by a person
with the necessary standing.
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Clause 133 Publication of sensitive information about patients
This clause states that a person must not publish, for financial or
other gain, certain sensitive information about and related to a
person's forensic patient status, without the express
authorisation of the Chief Forensic Psychiatrist and the express
and free authorisation of the person who is or has been a secure
mental health unit patient.
Clause 134 Disclosure of confidential, &c., information about
patients
This clause prevents the disclosure of certain information of a
confidential or personal nature about a patient in circumstances
other than those specified in the subclause.
The intention is to balance the need for patient information to
be maintained confidentially with the occasional need to disclose
that information, if the need to do so outweighs the need for it
to be kept confidential.
Clause 135 Translation, interpreters, &c.
This clause imposes obligations on all persons exercising
responsibilities under this Act to ensure that information that is
given to patients, representatives and support persons is given in
a language or form that the patient, support person or
representative understands.
Clause 136 Monthly reports on voluntary inpatients
This clause imposes obligations on the controlling authority of
approved facilities to provide information about the
accommodation and treatment of persons who have been
voluntary inpatients of the relevant approved facility for more
than four months since the date of the person's last admission,
to the Mental Health Tribunal and the Chief Civil Psychiatrist.
This is of relevance given:
The Chief Civil Psychiatrist's ability to intervene in relation
to matters involving the general assessment and treatment
of patients generally, pursuant to clause 147, and
The requirement for the Mental Health Tribunal to review
the status of long-term voluntary inpatients once the
person has been such a patient for more than six months,
pursuant to clause 184.
Clause 137 Parents of child patients to be given same information
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as patients
This clause requires information that is required to be given to a
patient who is a child, to be given to a parent of the child at the
same time, unless the child objects to this occurring.
This is of relevance given:
The ability for a parent to provide informed consent to
assessment and treatment for a child who lacks capacity to
make their own decision in this regard, pursuant to
clause 9, and
The role that parents continue to have in relation to the
general care and wellbeing of their children, regardless of
how or by whom the child's treatment and care is
authorised
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Part 8 Approved personnel and facilities
This Part governs the approval of personnel and facilities.
Clause 138 Medical practitioners and nurses
This clause provides authority for the Chief Civil or Chief
Forensic Psychiatrist to approve individuals or members of a
class of persons as medical practitioners and nurses for
provisions of this Act that fall within their respective jurisdiction,
and for provisions of other Acts in relation to which they have
responsibilities.
Clause 139 Mental health officers
This clause provides authority for the Chief Civil or Chief
Forensic Psychiatrist to approve individuals or members of a
class of persons as mental health officers for provisions of this
Act that fall within their respective jurisdiction, and for
provisions of other Acts in relation to which they have
responsibilities.
The clause enables either Chief Psychiatrist to confer an
approval on an individual or class of ambulance officer only with
the consent of the Director of Ambulance under the Ambulance
Service Act 1982; and on an individual or class of police officer
only with the consent of the Commissioner of Police.
Clause 140 Hospitals and other facilities
This clause provides authority for the Minister for Health to
approve premises as hospitals, assessment centres or secure
mental health units for this Act if satisfied that the relevant
premises are properly built, equipped and staffed to assess or
treat:
In the case of approved hospitals and approved assessment
centres - involuntary patients with mental illness, and
In the case of secure mental health units - forensic
patients.
Clause 141 Secure institutions
This clause provides authority for the Minister for Health to
approve an institution other than an approved facility as a secure
institution for the purposes of this Act.
Clause 142 Revocation of approvals for hospitals and other facilities
This clause governs the revocation of approvals of premises as
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hospitals, assessment centres and secure mental health units
issued under clause 140.
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Chapter 3 Oversight and Review
Part 1 Chief Psychiatrists
This Part governs the appointment, powers and functions of the
Chief Civil Psychiatrist and the Chief Forensic Psychiatrist.
Clause 143 Chief Civil Psychiatrist
This clause provides authority for the Governor to appoint a
psychiatrist with at least five years' experience in practicing
psychiatry, as Chief Civil Psychiatrist.
The clause also clarifies the Chief Civil Psychiatrist's overall
responsibilities.
Consideration will be given during the implementation period
associated with the Act, to whether or not one person should
be appointed to the role of Chief Civil Psychiatrist and Chief
Forensic Psychiatrist. The intention is for the clause to enable
one person to be appointed pursuant to both this clause and
clause 144, should this be considered necessary or desirable in
the circumstances.
Clause 144 Chief Forensic Psychiatrist
This clause provides authority for the Governor to appoint a
psychiatrist with at least five years' experience in practicing
psychiatry, as Chief Forensic Psychiatrist.
The clause also clarifies the Chief Forensic Psychiatrist's overall
responsibilities.
Clause 145 Term of office
This clause governs the duration of an appointment made under
clauses 143 or 144 and confirms that a Chief Psychiatrist may, if
eligible, be reappointed.
Clause 146 Functions and powers
This clause sets out the powers and functions of the Chief Civil
and Chief Forensic Psychiatrists.
Clause 147 Power of direct intervention
This clause provides each Chief Psychiatrist with authority to
directly intervene with regard to a range of matters concerning
patients within his or her jurisdiction, and provides for related
matters.
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Clause 148 Independence
This clause sets out the status that the Chief Civil Psychiatrist
and the Chief Forensic Psychiatrist have when acting or forming
any opinion in clinical matters.
In relation to these matters the clause confirms that each of the
Chief Psychiatrists is independent, and is not subject to the
direction of the Minister, the other Chief Psychiatrist, or any
other person.
Clause 149 Delegation
This clause confirms the ability for each of the Chief Psychiatrists
to delegate certain powers and functions.
The clause provides that a Chief Psychiatrist may only delegate
restricted professional powers including the power to authorise
the giving of urgent circumstances treatment or to authorise
seclusion or restraint, to a medical practitioner.
Clause 150 Reporting
This clause requires each Chief Psychiatrist to provide the
Minister for Health with an annual report and requires the
Minister to lay the report before each House of Parliament.
Clause 151 Clinical guidelines
This clause provides each Chief Psychiatrist with the ability to
issue clinical guidelines and clarifies the purpose of any guidelines
that are issued pursuant to this clause.
In particular the clause makes it clear that a person exercising
responsibilities under this Act in respect of a matter for which
clinical guidelines have been issued is to comply with those
guidelines; and that a failure by a person to comply with clinical
guidelines constitutes grounds for instituting professional, or if
relevant, occupational disciplinary action against that person,
particularly if the failure to comply leads to unfavourable patient
outcomes that might otherwise have been avoided or if there is
a history of disregard.
Clause 152 Standing orders
This clause provides each Chief Psychiatrist with the ability to
issue standing orders and clarifies the purpose of any orders that
are issued pursuant to this clause.
In particular the clause makes it clear that a person exercising
responsibilities under this Act in respect of a matter for which
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standing orders have been issued must comply with those
orders; and that a failure by a person to comply with standing
orders constitutes grounds for instituting professional, or if
relevant, occupational disciplinary action against that person.
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Clause 153 Matters common to clinical guidelines and standing
orders
This clause governs matters relevant to the development and
content of clinical guidelines issued pursuant to clause 151 and
standing orders issued pursuant to clause 152.
In particular the clause makes it clear that clinical guidelines and
standing orders may not contain provisions that are repugnant
to the provisions of this or any other Act; and that in the event
of any inconsistency with the provisions of any Act, the
provisions of that Act prevail.
Part 2 Official Visitors
This Part governs the appointment, powers and functions of the
Principal Official Visitor, and of Official Visitors.
The intention is for this Part of the Act to be administered by
the Minister for Justice, at such time as the Part commences.
Clause 154 Interpretation of Part
This clause clarifies how references to an Official Visitor in this
Part are to be interpreted.
Clause 155 Appointment
This clause provides authority for the Governor to appoint a
Principal Official Visitor, on the recommendation of the Minister
for Justice. The clause also provides authority for the Principal
Official Visitor to appoint one or more Official Visitors.
Subclause 2 lists a range of factors including holding an
appointment (other than that of an Official Visitor) under this
Act or having a financial interest in an approved facility that
would preclude a person from being appointed to either of these
offices. The intention is to ensure that only individuals who are
free from any actual or potential conflict of interest, are
appointed as the Principal Official Visitor or as an Official Visitor.
Clause 156 Functions of Principal Official Visitor
This clause sets out the functions of the Principal Official Visitor.
Clause 157 Functions of Official Visitors
This clause sets out the functions of Official Visitors.
Clause 158 Delegation
This clause provides the Principal Official Visitor with the power
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to delegate any of his or her functions, other than the power of
delegation, to an Official Visitor.
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Clause 159 Powers of Official Visitors
This clause sets out the powers of the Principal Official Visitor
and Official Visitors, including any Official Visitor to whom
Principal Official Visitor functions have been delegated pursuant
to clause 158.
Clause 160 Visits
This clause governs visits by Official Visitors to approved
facilities and premises in or from which a patient is being
provided with services under this Act, and provides for related
matters.
Subclause 1 requires the Principal Official Visitor to arrange for
each approved hospital, approved assessment centre and secure
mental health unit to be visited by an Official Visitor on a
monthly basis.
Subclause 2 requires the Principal Official Visitor to arrange for
premises other than approved hospitals, approved assessment
centres or secure mental health units, to be visited on request.
This power has been included given the ability for a Treatment
Order to:
Specify that the treatment setting under the Order is to be
in accordance with the treatment plan, which may, for
example, specify a community health centre as the place at
which the patient is to receive the treatment authorised by
the Order, and
Specify or provide for any matters incidental to the
person's treatment, which may, for example, require the
person to reside at a particular place of supported
accommodation for a given period of time.
The inclusion of such a requirement in an Order is a restriction
on a person's rights and the intention is to ensure that there is
oversight of such restrictions.
Clause 161 Complaints
This clause regulates the making of complaints to Official
Visitors.
Clause 162 Independence
This clause sets out the status that Official Visitors have when
performing functions, exercising powers and forming opinions.
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Clause 163 Obligation of officials to assist Official Visitors, &c.
This clause obliges persons exercising responsibilities under this
Act to assist patients to see or complain to an Official Visitor.
In particular, subclause 3 requires a person discharging
responsibilities under this Act who knows that a patient has
expressed a wish to see or complain to an Official Visitor, to do
the things referred to in the subclause, to the maximum extent
of the person's lawful and physical capacity to do so, and
consistent with the patient's wishes.
In particular the clause confirms the ability for a patient to ask
that an Official Visitor not be granted access to records relating
to the patient's assessment, treatment and care. The intention is
to balance the need for Official Visitors to have access to
information to enable them to perform their functions
appropriately with the patient's right to have control over when
and to whom sensitive information concerning their assessment,
treatment and care, is provided.
Clause 164 Identification
This clause provides for identity cards to be issued to the
Principal Official Visitor, and to Official Visitors and regulates
their use and retrieval.
Clause 165 Operational and monthly reporting, &c.
This clause requires the Principal Official Visitor to:
Report certain known or suspected contraventions of the
Act to the Health Complaints Commissioner or
Ombudsman, and
Provide the Minister for Health with a quarterly report on
Official Visitor activities, and
Provide the Minister for Health with additional reports on
specified matters at the Minister's request.
The clause also enables the Principal Official Visitor to give the
Minister for Health or a Chief Psychiatrist a private report on
any matter relating to Official Visitor responsibilities or activities.
Clause 166 Annual report
This clause requires the Principal Official Visitor to provide the
Minister for Health with an annual report and requires the
Minister to lay the report before each House of Parliament.
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Part 3 Mental Health Tribunal
This clause governs the establishment, powers and functions of
the Mental Health Tribunal.
The intention is for this Part of the Act to be administered by
the Minister for Justice, at such time as the Part commences.
Clause 167 Establishment
This clause provides for the establishment of the Mental Health
Tribunal.
The clause requires the Tribunal to consist of:
At least one person who is an Australian lawyer with at
least five years' experience as an Australian lawyer, and
At least one person who is a psychiatrist as defined in
clause 3, and
At least four other members.
The clause provides for each member to be appointed by the
Governor and enables the Governor to appoint one of the
Australian lawyer members as President of the Tribunal, and one
of the other members as Deputy President of the Tribunal.
The clause provides for the Tribunal to regulate its own
proceedings.
Clause 168 Functions
This clause sets out the Mental Health Tribunal's functions,
including to make, vary, renew and discharge Treatment Orders
and the power to authorise special psychiatric treatment.
Clause 169 Powers
This clause determines the Mental Health Tribunal's powers,
including the power to:
Issue guidelines, and
Require reports, and
Approve forms.
Clause 170 Divisions
This clause enables the Tribunal to sit in divisions and imposes
certain requirements in relation to how divisions are to be
constituted.
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In particular, the clause provides that:
A division consists of either one member, or three or
more members, chosen by the President, and
The President may either constitute or be a member of, a
division, and
The President is to ensure that a division of three or more
members has at least one member who is an Australian
lawyer, and one member who is a psychiatrist.
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Clause 171 Acting by majority
This clause provides for the Tribunal, when constituted of three
or more members, to act by majority.
Clause 172 Interim determinations on adjournment
This clause provides for the Tribunal to adjourn proceedings,
and to make interim determinations on adjournment, in certain
circumstances.
Clause 173 Questions of law
This clause enables the Tribunal to refer any question of law that
may arise in a hearing or determination of proceedings to the
Supreme Court in the form of a special case for determination.
Clause 174 Appeal from determinations
This clause governs appeals from Tribunal determinations.
Clause 175 Appeals procedure
This clause regulates matters regarding appeals made pursuant
to clause 174.
Clause 176 Registrar and staff
This clause provides for the appointment of a State Servant
employed in the Department of Justice as Registrar of the
Tribunal, and for arrangements to be made for the services of
other State Servants employed in the Department of Justice to
be made available to the Tribunal so that it may perform its
powers and functions.
Clause 177 Register
This clause requires the Registrar to keep a register of
applications made to the Tribunal, and Tribunal determinations.
Clause 178 Annual report
This clause requires the Mental Health Tribunal to provide the
Minister for Justice with an annual report and requires the
Minister to lay the report before each House of Parliament.
Clause 179 The Tribunal's review function
This clause sets out the Tribunal's review functions under this
Act. The clause also refers to the Tribunal's review functions:
In relation to admissions of prisoners to secure mental
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health units as provided for by section 36B of the
Corrections Act 1997, and
In relation to admissions of youth detainees to secure
mental health units as provided for by section 134B of the
Youth Justice Act 1997, and
In relation to restriction orders or supervision orders
made under the Criminal Justice (Mental Impairment)
Act 1999, as provided by section 37 of that Act.
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Clause 180 Review of assessment order
This clause governs the review, by the Mental Health Tribunal,
of the making of an Assessment Order.
Clause 181 Review of treatment order
This clause governs the review, by the Mental Health Tribunal,
of a Treatment Order.
Clause 182 Review of involuntary admission to SMHU
This clause governs the review, by the Mental Health Tribunal,
of the admission (or any extension of the admission) of an
involuntary patient to a secure mental health unit pursuant to
clauses 63 and 64 of this Act.
Clause 183 Review of refusal to return forensic patient to external
custodian
This clause governs the review, by the Mental Health Tribunal,
of a refusal by the Chief Forensic Psychiatrist under clause 70 of
this Act to return prisoners and youth detainees whose removal
to a secure mental health unit was on request, to prison or
youth detention.
Clause 184 Review of status of voluntary inpatient
This clause governs the review, by the Mental Health Tribunal,
of the status of a voluntary inpatient.
Clause 185 Review of admission to SMHU of prisoner or youth
detainee
This clause governs the review, by the Mental Health Tribunal,
of the admission of a prisoner or youth detainee to a secure
mental health unit pursuant to the provisions of the Corrections
Act 1997 and Youth Justice Act 1997 respectively.
Clause 186 Review of urgent circumstances treatment
This clause governs the review, by the Mental Health Tribunal,
of urgent circumstances treatment authorised pursuant to
clauses 55 or 87 of this Act.
Clause 187 Review of seclusion and restraint
This clause governs the review, by the Mental Health Tribunal,
of seclusion authorised by clauses 56 or 94 of this Act, and
restraint authorised by clauses 57 or 95 of this Act.
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Clause 188 Review of force
This clause governs the review, by the Mental Health Tribunal,
of the application of force to a forensic patient pursuant to
clause 93 of this Act.
Clause 189 Review of withholding of information from patient
This clause governs the review, by the Mental Health Tribunal,
of the withholding by a person of information from a patient
pursuant to clause 132 of this Act.
Clause 190 Review of involuntary patient or forensic patient
transfer within Tasmania
This clause governs the review, by the Mental Health Tribunal,
of the transfer within Tasmania of an involuntary patient
pursuant to clause 59 of this Act, or of a forensic patient
pursuant to clauses 72 or 73 of this Act.
Clause 191 Review of determination relating to leave of absence
This clause governs the review, by the Mental Health Tribunal,
of the grant, refusal or variation of a leave of absence to an
involuntary patient pursuant to clause 60 of this Act, or to a
forensic patient who is not subject to a restriction order
pursuant to clauses 82 or 83 of this Act.
Clause 192 Review of exercise of visiting, telephone or
correspondence right
This clause governs the review, by the Mental Health Tribunal,
of a decision concerning a forensic patient's visiting, telephone
or correspondence rights pursuant to Divisions 4 and 5 of Part 5
of Chapter 2 of this Act.
Clause 193 Other reviews
This clause governs the review, by the Mental Health Tribunal,
of any decision or matter for which express provision is not
otherwise made in Division 2 of Part 3 of Chapter 3 of this Act.
Clause 194 General powers, &c., on review
This clause regulates matters relevant to the conduct of any
review, by the Mental Health Tribunal.
Clause 195 Form of applications for review, &c.
This clause governs application made to the Mental Health
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Tribunal.
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Clause 196 Refusal of review
This clause enables the Tribunal to refuse to review matters in
certain circumstances.
Clause 197 On-paper reviews by Registrar
This clause enables the President of the Mental Health Tribunal
to authorise the Registrar of the Tribunal to review any matter
or class of matter, other than a 30 or 90 day review of a
Treatment Order, in certain circumstances.
Clause 198 Preliminary evaluation
This clause enables the President of the Mental Health Tribunal
to direct the Registrar of the Tribunal or any Mental Health
Tribunal staff member to do a preliminary evaluation of any
application and perform related functions, and governs the
performance of such evaluations.
Clause 199 Evidence of Tribunal determination
This clause sets out matters relevant to a determination of the
Tribunal.
Chapter 4 Intergovernmental agreements
This Chapter governs intergovernmental agreements.
Part 1 Preliminary
This Part provides for preliminary matters relevant to
intergovernmental agreements.
Clause 200 Interpretation of Chapter
This clause defines terms used Chapter 4 of this Act.
Clause 201 Power of Minister to enter into interstate agreements
This clause provides authority for the Minister for Health to
enter into interstate transfer agreements and interstate control
agreements, on behalf of Tasmania.
Part 2 Interstate transfer agreements
This Part governs interstate transfer agreements.
Clause 202 Nature of interstate transfer agreements
This clause sets out what an interstate transfer agreement is.
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Clause 203 Operation of interstate transfer agreements
This clause governs how interstate transfer agreements made
pursuant to this Chapter are to operate.
Clause 204 Effect of certain transfers
This clause determines the effect of certain transfers made
pursuant to an interstate transfer agreement.
Part 3 Interstate control agreements
This Part governs interstate control agreements.
Clause 205 Nature of interstate control agreements
This clause sets out what an interstate control agreement is.
Clause 206 Power of Tasmanian officials to act under corresponding
law
This clause provides authority for certain Tasmanian officials, to
discharge responsibilities conferred on the official under a law of
another State providing for the treatment and care of persons
with a mental illness.
Clause 207 Power of interstate officials to act in Tasmania
This clause provides authority for certain interstate officials to
discharge responsibilities conferred on the official under a law of
another State providing for the treatment and care of persons
with a mental illness, in Tasmania.
Clause 208 Apprehension, &c., of involuntary patients, &c., from
interstate
This clause governs the apprehension of certain persons
including persons who have absconded from a mental health
facility in another State, and who are found at large in Tasmania.
Clause 209 Apprehension, &c., of involuntary patients, &c., found
interstate
This clause governs the apprehension of certain patients
including involuntary patients or forensic patients who have
absconded from an approved hospital or secure mental health
unit, and who are found at large in a State with which Tasmania
has an agreement under Chapter 4 of this Act.
Clause 210 Apprehension of persons under supervision orders found
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interstate
This clause governs the apprehension of a person in breach of a
supervision order who is found at large in a State with which
Tasmania has an agreement under Chapter 4 of this Act.
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Chapter 5 Miscellaneous
Part 1 General
This Part governs general miscellaneous matters.
Clause 211 Remote medical procedures
This clause governs the performance of medical procedures for
the purposes of this Act.
Clause 212 Special powers of ambulance officer acting as MHO
This clause provides ambulance officers who are approved as
mental health officers for the purposes of this Act pursuant to
clause 139, with the authority to sedate a patient who is being
transported by ambulance under this Act, in certain
circumstances.
The clause requires an ambulance officer who exercises the
power of sedation under this clause to provide the Chief Civil
Psychiatrist with a report of the matter.
This is of relevance given the Chief Civil Psychiatrist's role in
ensuring that the Objects of the Act contained in clause 12,
which require assessment, treatment and care to be provided in
the least restrictive setting consistent with clinical need, legal and
judicial constraints, public safety and public health, safety and
welfare, and the mental health service delivery principles
referred to in clause 15 and outlined in Schedule 1, which
require all persons exercising responsibilities under the Act to
respect, observe and promote the inherent rights, liberty,
dignity, autonomy and self-respect of persons with mental illness,
are upheld in relation to involuntary patients generally.
The intention is to provide a mechanism for ambulance officers
who have been approved by the Chief Civil Psychiatrist as
mental health officers for this Act, to lawfully sedate patients
being transported pursuant to the Act, where this is reasonably
considered to be necessary or prudent having regard to field
protocols approved by the Director of Ambulance, pursuant to
the Poisons Act 1971.
Ambulance officers currently sedate patients being transported
where this is considered necessary in all the circumstances to
ensure the patient's safety and that of other persons including
other road users and ambulance service staff, pursuant to the
common law. The intention is to ensure that this practice is
made transparent, is regulated, and is appropriately oversighted,
in relation to the transport of persons with a mental illness,
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pursuant to the Act.
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Part 2 Offences
This Part provides for a number of offences.
Clause 213 Unlawful treatment
This clause makes it an offence for a person to give a patient
treatment without informed consent or, in the absence of
informed consent, authorisation under this Act.
Clause 214 Obstruction of persons discharging responsibilities
under Act, &c.
This clause makes it an offence for a person to hinder or
obstruct certain persons in the discharge of any responsibilities
under this Act.
Clause 215 Contravention of Tribunal determinations
This clause makes it an offence for a person to contravene a
determination or direction of the Tribunal.
Clause 216 False or misleading statements
This clause makes it an offence for a person to give a false or
misleading statement.
Part 3 Legal and administrative
This Part governs certain legal and administrative matters.
Clause 217 Immunities
This clause provides certain persons with immunity from liability
in certain circumstances.
Clause 218 Delegation
This clause provides the Minister with authority to delegate
certain responsibilities under this Act.
Clause 219 Delegation by controlling authority
This clause provides the controlling authority of an approved
facility with authority to delegate any of his or her
responsibilities under this Act, other than the power of
delegation.
Clause 220 Conflicts of interest
This clause governs conflicts of interest, and prevents a person
who has a clear conflict of interest as provided for in the clause,
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from discharging a responsibility in respect of a patient under
this Act.
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Clause 221 Defects in appointments, &c.
This clause regulates appointments, approvals, authorisations or
delegations which have a defect or irregularity of form or
process.
Clause 222 Errors affecting orders
This clause regulates errors affecting Orders made under this
Act.
Clause 223 Status of notices
This clause governs the status of notices under this Act.
Clause 224 Service of documents
This clause governs notices or other documents served under
this Act.
Clause 225 Regulations
This clause provides the Governor with the authority to make
regulations for the purposes of this Act.
Clause 226 Amendment of Schedule 1
This clause provides the Governor with the authority to amend
Schedule 1 of this Act at any time, by order, and requires any
order issued by the Governor pursuant to this clause:
Not to be treated as an instrument of a legislative
character for the purposes of the Subordinate Legislation
Act 1992, but
To be treated as if it were a regulation for the purposes of
sections 47(3), (3A), (4), (5), (6) and (7) of the Acts
Interpretation Act 1931.
The intention is to ensure that Schedule 1, which contains the
mental health service delivery principles, may be amended over
time to ensure that the Act's principles remain contemporary
without the need to engage in a complex and time consuming
legislative amendment process.
Clause 227 Administration of Act
This clause governs the administration of the Act.
The clause provides that the administration of the Act is
assigned to the Minister for Health until such time as an order is
made in relation to the Act, under section 4 of the Administrative
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Arrangements Act 1990.
The intention into the future is for those Parts of the Act which
are concerned with Official Visitors and the Mental Health
Tribunal to be administered by the Minister for Justice, with the
remaining Parts being administered by the Minister for Health.
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Clause 228 Legislation repealed
This clause provides that the legislation specified in Schedule 6 is
repealed by this Act.
Clause 229 Legislation rescinded
This clause provides that the legislation specified in Schedule 7 is
rescinded by this Act.
Schedule 1 Mental Health Service Delivery Principles
Clause 13, clause 15 and this Schedule jointly provide guidance
about how the Act's provisions should be read and interpreted.
This Schedule identifies the mental health service delivery
principles established by clause 15 of this Act.
Schedule 2 Custody and escort provisions
This clause sets out how custody and escort functions provided
for or referred to in this Act, are to be performed.
Part 1 Preliminary
Clause 1 Interpretation
This clause defines terms used in Schedule 2 of this Act.
In particular, the clause sets out what the terms frisk search and
ordinary search mean, for the purposes of the Schedule.
Part 2 Powers and duties
Clause 1 General powers, &c., of custodians and escorts
This clause sets out the general powers and responsibilities that
custodians and escorts have, when performing custodian and
escort functions under this Act, including:
The ability to use reasonable force against a patient if the
patient resists being taken into protective custody or
under escort, and
The ability to use reasonable force against a person who
tries to prevent the patient from being taken into
protective custody or under escort, and
The ability to enter premises without a warrant if a
custodian or escort reasonably believes that a patient may
be found on those premises, and
The ability to transfer physical control of the patient to
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another custodian or escort or to another police officer,
mental health officer or authorised person.
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Clause 2 Search powers of custodians and escorts
This clause governs the performance of frisk searches and
ordinary searches, as defined in clause 1 of Part 1 of Schedule 2,
by custodians and escorts.
Clause 3 Proof of identity
This clause governs requirements around proof of identity for a
person purporting to exercise, discharge or perform a
responsibility as a custodian or escort.
Clause 4 Schedule does not limit certain powers
This clause makes it clear that the powers noted in this Schedule
are not intended to limit any powers of arrest, search and
seizure that a person has under Tasmanian law.
Part 3 Policy
Schedule 1 Custody and escort policy
This clause sets how custody and escort functions should be
performed.
In particular, the clause provides that, as far as practicable:
The use of non-police custodians, escorts and assistants is
to be preferred this is to ensure a `health first' response,
and
Patients should be transported with the least delay and
discomfort as circumstances reasonably allow. This
includes in relation to a person who is in protective
custody and who is being escorted to an assessment
centre.
Schedule 3 Membership of Tribunal
This clause has effect in respect of the membership of the
Mental Health Tribunal.
Clause 1 Term of office
This clause governs matters relevant to the terms of office of
the President of the Tribunal, the Deputy President of the
Tribunal and of other Tribunal members.
Clause 2 Extension of term of office
This clause enables a Tribunal member's term of appointment to
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be taken to continue, in certain circumstances.
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Clause 3 Holding other office
This clause governs the holding, by a Tribunal member, of
certain other offices.
Clause 4 State Service Act
This clause sets out how the State Service Act 2000 applies to a
Tribunal member.
Clause 5 Remuneration and conditions of appointment
This clause governs the remuneration of Tribunal members, and
the conditions on which a member holds office.
Clause 6 Filling of vacancies
This enables the Governor to appoint a person to the office of a
member that has become vacant, for the remainder of the
member's term of office.
Clause 7 Vacation of office
This clause sets out when a member vacates office, and when
the Governor may remove a member from office.
Clause 8 Validity of proceedings, &c.
This clause governs matters relevant to the validity of
proceedings.
Clause 9 Deputy President
This clause sets out the circumstances in which the Deputy
President of the Tribunal may exercise and perform the powers
of the President of the Tribunal.
Clause 10 Delegation of President
This clause provides the President of the Mental Health Tribunal
with authority to delegate certain of his or her responsibilities
under this Act, to the Deputy President of the Mental Health
Tribunal.
Clause 11 Expert assistance
This clause governs the authorisation, by the Tribunal, of
persons with special expertise, to assist the Tribunal in relation
to certain matters.
Schedule 4 Proceedings of Tribunal
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Part 1 Interpretation
Clause 1 Interpretation
This clause defines terms used in Schedule 4 of this Act.
In particular, the clause defines a party, to any proceedings, as
including any person intervening in those proceedings.
Part 2 General Procedures
Clause 1 Sittings
This clause governs when and where the Tribunal is to sit.
Clause 2 Persons with standing
This clause sets out who has standing to institute or intervene in
proceedings.
Clause 3 Persons who may intervene
This clause sets out who has standing to intervene in
proceedings.
Clause 4 Notice
This clause requires the Tribunal to ensure that a party to any
proceedings is given reasonable notice of each hearing held in
the course of those proceedings, and enables the Tribunal to
notify other persons of the hearing, as it thinks fit in the
circumstances.
Clause 5 General principles
This clause governs how the Tribunal is to conduct its
proceedings.
In particular, the clause requires the Tribunal to observe the
rules of procedural fairness, which requires the Tribunal to,
amongst other things, provide patients with an opportunity to be
heard when making decisions which affect that patient's rights or
interests.
Clause 6 Evidence
This clause governs how evidence may be given to and before
the Tribunal, and provides for related matters.
Clause 7 Representation
This clause governs matters concerning attendance by a party to
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proceedings at hearings held in those proceedings, and the
representation of a party to proceedings.
In particular the clause requires the Tribunal to make
arrangements for the representation of a patient in certain
circumstances.
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Clause 8 Appearance
This clause governs a patient's attendance at any proceedings.
Clause 9 Privacy
This clause sets out matters concerning the privacy of Tribunal
hearings and regulates how a Tribunal determination that
proceedings should be open to the public may be challenged.
Clause 10 Record of proceedings
This clause requires the Tribunal to make and keep a record of
each of its proceedings.
Clause 11 Publication of proceedings
This clause enables the Tribunal to publish a de-identified record
of any of its proceedings, in certain circumstances.
Part 3 Facilitation of proceedings
Clause 1 Practice directions
This clause enables the President of the Mental Health Tribunal
to issue, vary, revoke and/or publish, practice directions.
Part 4 Powers
Clause 1 General powers
This clause sets out the Mental Health Tribunal's general powers
in relation to proceedings, including the ability for the Tribunal
to issue a summons, and to adjourn proceedings.
Clause 2 Medical assessment
This clause authorises the Tribunal to require a patient in any
proceedings to have a medical examination in certain
circumstances.
Clause 3 Reports
This clause enables the Tribunal to require a Chief Psychiatrist
or controlling authority of an approved facility to provide it with
certain information.
Clause 4 Visits
This clause enables the Tribunal or any member of the Tribunal
to visit and interview any patient in private, in respect of whom
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an application has been made to the Tribunal.
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Clause 5 Contempt of Tribunal
This clause governs when a person is in contempt of the
Tribunal and the actions that may be taken if and when a person
is in contempt.
Part 5 Votes and decisions
Clause 1 Voting
This clause determines how questions arising for determination
by the Tribunal are to be determined and confirms that this may
be by a majority of votes of the members present and voting.
Clause 2 Announcement of decision
This clause provides authority for the Tribunal to announce its
determinations and regulates how an announcement may be
made.
Part 6 Miscellaneous
Clause 1 Statements of reasons
This clause enables a party to any proceedings to apply to the
Tribunal for a written statement of reasons and requires the
Tribunal to comply with the request, and regulates the
timeframes within which a request must be made, and the
statement provided.
Schedule 5 Official Visitors
Clause 1 Term of office
This clause governs matters relevant to the terms of office of
the Principal Official Visitor, and Official Visitors.
Clause 2 Holding other office
This clause governs the holding, by the Principal Official Visitor
or an Official Visitor, of certain other offices.
Clause 3 State Service Act
This clause sets out how the State Service Act applies to the
office of Principal Official Visitor and to Official Visitors.
Clause 4 Remuneration and conditions of appointment
This clause governs the remuneration of the Principal Official
Visitor and of Official Visitors, and determines the conditions on
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which the Principal Official Visitor and Official Visitors may hold
office.
Clause 5 Vacation of office of Principal Official Visitor, &c.
This clause sets out when the Principal Official Visitor vacates
office, and regulates when the Governor may remove a person
from the office of Principal Official Visitor.
Clause 6 Vacation of office of Official Visitor, &c.
This clause sets out when an Official Visitor vacates office, and
regulates when the Principal Official Visitor may remove a
person from the office of Official Visitor.
Schedule 6 Legislation repealed
This Schedule identifies legislation revoked by clause 228 of this
Act.
Schedule 7 Legislation rescinded
This Schedule identifies the legislation revoked by clause 299 of
this Act.
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