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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Mental Health Bill 2007
Contents
Page
Chapter 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Objects of Act 2
4 Definitions 2
Chapter 2 Voluntary admission to facilities
5 Admission on own request 6
6 Voluntary admission of children 6
7 Voluntary admission of persons under guardianship 6
8 Discharge of voluntary patients 7
9 Review of voluntary patients 7
10 Detention of voluntary patients in mental health facilities 7
11 Review of decisions made by authorised medical officer to
refuse admission or discharge voluntary patient 8
Mental Health Bill 2007
Contents
Page
Chapter 3 Involuntary admission and treatment
in and outside facilities
Part 1 Requirements for involuntary admission,
detention and treatment
12 General restrictions on detention of persons 9
13 Criteria for involuntary admission etc as mentally ill person
or mentally disordered person 9
14 Mentally ill persons 9
15 Mentally disordered persons 10
16 Certain words or conduct may not indicate mental illness
or disorder 10
Part 2 Involuntary detention and treatment in mental
health facilities
Division 1 Preliminary
17 Definitions 11
Division 2 Admission to and initial detention in mental
health facilities
18 When a person may be detained in mental health facility 11
19 Detention on certificate of medical practitioner or
accredited person 12
20 Detention on information of ambulance officer 13
21 Police assistance 13
22 Detention after apprehension by police 13
23 Detention after order for medical examination or observation 14
24 Detention on order of Magistrate or bail officer 14
25 Detention after transfer from another health facility 15
26 Detention on request of primary carer, relative or friend 15
27 Steps for medical examination requirements for ongoing
detention in mental health facility 15
28 Obligations of examining medical practitioners 16
29 Treatment of persons detained in mental health facilities 17
30 Assessable persons may be reclassified as voluntary
patients 17
31 Limited detention of mentally disordered persons 17
32 Limited further detention of persons taken to facility by police
or after Magistrate's or bail officer's order 18
33 Actions may be delayed because of other illnesses or
conditions 19
Contents page 2
Mental Health Bill 2007
Contents
Page
Division 3 Continuing detention in mental health facilities
34 Mental health inquiries to be held 19
35 Purpose and findings of mental health inquiries 19
36 Contempt of mental health inquiry 20
37 Reviews of involuntary patients by Tribunal 21
38 Purpose and findings of reviews of involuntary patients 21
39 Medical examination of involuntary patients 22
40 Re-classification of involuntary patients as voluntary patients 22
41 Discharge on making of community treatment order 22
42 Discharge of involuntary patients on own application 23
43 Discharge of involuntary patients on application of
primary carer 23
44 Appeals against discharge refusals 23
45 Review and discharge of absent patients 24
Division 4 Leave of absence from mental health facilities
46 Application of Division 24
47 Leave of absence on compassionate grounds, medical
grounds or other grounds 24
48 Apprehension of persons not permitted to be absent from
mental health facility 25
49 Police assistance 25
Part 3 Involuntary treatment in the community
Division 1 Applications for and making of community
treatment orders
50 Definitions 26
51 Community treatment orders 26
52 Notice of applications 27
53 Determination of applications for community treatment
orders 27
54 Requirements for treatment plans under community
treatment orders 28
55 Community treatment order may be made in absence of
affected person 29
56 Form and duration of community treatment orders 29
Division 2 Operation of community treatment orders
57 Duties and functions of affected person and mental health
facility 29
58 Breach of community treatment order 30
59 Police assistance 31
60 Procedures at facility after breach notice or breach order 31
Contents page 3
Mental Health Bill 2007
Contents
Page
61 Review of affected person at mental health facility after
breach order 31
62 Discharge and detention of affected persons 32
63 Review by Tribunal of detained affected persons 33
64 Purpose and findings of reviews 33
Division 3 Revocation, variation and review of
community treatment orders
65 Variation or revocation of orders by Tribunal 34
66 Revocation by director of community treatment 34
67 Appeals 34
Chapter 4 Care and treatment
Part 1 Rights of patients or detained persons and
primary carers
Division 1 General
68 Principles for care and treatment 36
69 Offence to ill-treat patients 37
70 Assistance of interpreters 37
71 Primary carer 37
72 Nomination of primary carer 38
Division 2 Notification and information sharing
73 Information about medication 38
74 Information to be given to persons to be detained 39
75 Notification to primary carer of initial detention 39
76 Notification of mental health inquiries 40
77 Notification to new involuntary patients of appeal rights 40
78 Notifications to primary carer of events affecting patients or
detained persons 40
79 Discharge and other planning 41
Division 3 Transfer of patients
80 Transfer of patients to or from mental health facilities 41
81 Transport of persons to and from mental health facilities and
other health facilities 42
Part 2 Mental health treatments
Division 1 Preliminary
82 Definitions 43
Contents page 4
Mental Health Bill 2007
Contents
Page
Division 2
83 Prohibited treatments 43
84 Treatment may be given to patients 44
85 Administration of excessive or inappropriate drugs 44
86 Review of drug use in mental health facilities 44
Division 3 Electro convulsive therapy
87 Definitions 45
88 Offences relating to administration of electro convulsive
treatment 45
89 When electro convulsive therapy may be administered 45
90 Refusal of treatment by medical superintendent 46
91 Informed consent requirements 46
92 Person impaired by medication incapable of giving
informed consent 47
93 When electro convulsive therapy may be administered to
persons other than involuntary patients 47
94 When electro convulsive therapy may be administered to
involuntary patients 48
95 Tribunal to hold inquiries promptly 48
96 Purpose and findings of ECT inquiries 48
97 Electro convulsive therapy register 50
Part 3 Other medical treatments
98 Definitions 50
99 Emergency surgery for involuntary patients 50
100 Director-General may consent to surgery 51
101 Tribunal may consent to surgery 52
102 Special medical treatment 53
103 Tribunal may consent to special medical treatment 53
104 Effect of consents 54
Chapter 5 Administration
Part 1 Administrative objectives and functions
105 Objectives of New South Wales public health system 55
106 Functions of Director-General 55
107 Delegation 56
108 Annual report 56
Contents page 5
Mental Health Bill 2007
Contents
Page
Part 2 Mental health facilities
Division 1 Declared mental health facilities
109 Establishment of declared mental health facilities 57
110 Declared mental health facilities that are private mental
health facilities 57
111 Appointment of medical superintendents 58
112 Appointment of deputy medical superintendents 58
113 Directors and deputy directors of community treatment 58
114 Psychiatric case managers 59
Division 2 Private mental health facilities
115 Application for licence 59
116 Grant or refusal of licence 59
117 Duration of licence 59
118 Annual statement and licence fee 60
119 Duplicate licence 60
120 Cancellation of licences--generally 60
121 Cancellation of licences--failure to show cause 60
122 Variation of licence 60
123 Provision of medical services in private mental health
facilities 61
124 Medical superintendents 61
125 Deputy medical superintendents 61
126 Unlicensed private mental health facilities 61
127 Certain private hospitals to be licensed 62
Part 3 Official visitors and accredited persons
128 Principal official visitor 62
129 Official visitors 62
130 General provisions relating to the Principal official visitor
and official visitors 63
131 Inspections of mental health facilities by official visitors 63
132 Obligations to facilitate exercise of functions by official
visitors 64
133 Reports to Minister 64
134 Request by patient or other person to see official visitor 64
135 Official visitors not personally liable 65
136 Accredited persons 65
Part 4 Inspection powers
137 Inspection of mental health facilities 65
138 Powers of authorised officer to require information,
evidence, production of records 66
Contents page 6
Mental Health Bill 2007
Contents
Page
139 Protection from incrimination 66
Chapter 6 Mental Health Review Tribunal
Part 1 The Tribunal
140 Constitution of the Tribunal 68
141 Membership of Tribunal 68
142 Registrar and other officers of the Tribunal 69
143 Authentication of documents 69
144 Judicial notice of certain signatures 69
145 Certain proceedings prohibited 69
146 Application of Defamation Act 2005 to proceedings of
Tribunal 69
147 Annual report 70
148 Delegation 70
Part 2 Procedures of the Tribunal
149 Application of Part 71
150 Composition of the Tribunal 71
151 Procedure at meetings of Tribunal to be informal 71
152 Legal representation of mentally ill persons and other
persons 72
153 Determination whether a person is a mentally ill person or
mentally disordered person 72
154 Rights of appearance and representation 73
155 Adjournments 73
156 Inspection etc of medical records 73
157 Production of evidence 74
158 Assistance of interpreters 75
159 Record of proceedings 75
160 Tribunal procedure generally 75
161 Contempt of Tribunal 76
162 Publication of names 76
Chapter 7 Jurisdiction of Supreme Court
163 Appeals to the Court 77
164 Power of the Court on appeals 77
165 Panel of assessors 77
166 Jurisdiction of Court to order discharge or transfer of
detained person 78
167 Other jurisdiction of the Court not affected 79
168 Tribunal members not liable for costs 79
Contents page 7
Mental Health Bill 2007
Contents
Page
Chapter 8 Interstate application of mental
health laws
Part 1 Preliminary
169 Object of Chapter 80
170 Definitions 80
171 Authority to enter into agreements 80
172 Corresponding laws, documents and interstate community
treatment orders 81
173 New South Wales officers may exercise functions under
corresponding laws 81
Part 2 Transfer of patients and persons
Division 1 Transfer of persons from this State
174 Admission of persons to mental health facilities in other
States 81
175 Effect of certificates 82
176 Transfer of patients from this State 82
Division 2 Transfer of persons to this State
177 Admission of interstate persons to mental health
facilities in this State 83
178 Application of Act to persons brought to mental health
facility from outside this State 83
179 Transfer of interstate persons to mental health facilities in
this State 83
180 Persons transferred taken to be involuntary patients 84
Part 3 Community treatment orders and other orders
181 Community treatment orders relating to interstate persons 84
182 Interstate implementation of New South Wales orders 84
183 Provision of services under interstate community
treatment order 85
184 Recognition of interstate community treatment orders 85
Part 4 Apprehension of persons absent from mental
health facility or in breach of orders
185 Recognition of warrants and orders 85
186 Apprehension of interstate persons absent without leave or
in breach of corresponding orders 86
187 Regulations relating to apprehension of persons 86
Contents page 8
Mental Health Bill 2007
Contents
Page
Chapter 9 Miscellaneous
188 Restrictions on holding of certain offices 87
189 Disclosure of information 87
190 Act does not limit or affect other powers 87
191 Liability of police officers and health care professionals
exercising functions under this Act 88
192 Service of documents 88
193 Amendment of certain documents 89
194 Approved forms 89
195 Role of objects provisions 89
196 Regulations 89
197 Proceedings for offences 91
198 Savings, transitional and other provisions 91
199 Amendment of other Acts 91
200 Repeal of Mental Health Act 1990 No 9 91
201 Review of Act 91
Schedule 1 Medical certificate as to examination or
observation of person 92
Schedule 2 Mental health inquiries 96
Schedule 3 Statement of rights 101
Schedule 4 Provisions relating to Principal official
visitor and official visitors 104
Schedule 5 Provisions relating to members of Tribunal 106
Schedule 6 Savings, transitional and other provisions 111
Schedule 7 Amendment of other Acts 118
Contents page 9
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2007
New South Wales
Mental Health Bill 2007
Act No , 2007
An Act to make provision with respect to the care, treatment and control of mentally
ill and mentally disordered persons and other matters relating to mental health; and
for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Mental Health Bill 2007
Chapter 1 Preliminary
The Legislature of New South Wales enacts:
Chapter 1 Preliminary
1 Name of Act
This Act is the Mental Health Act 2007.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Objects of Act
The objects of this Act are:
(a) to provide for the care, treatment and control of persons who are
mentally ill or mentally disordered, and
(b) to facilitate the care, treatment and control of those persons
through community care facilities, and
(c) to facilitate the provision of hospital care for those persons on a
voluntary basis where appropriate and, in a limited number of
situations, on an involuntary basis, and
(d) while protecting the civil rights of those persons, to give an
opportunity for those persons to have access to appropriate care,
and
(e) to facilitate the involvement of those persons, and persons caring
for them, in decisions involving appropriate care, treatment and
control.
Note. See also section 68 which contains principles for care and treatment and
section 105 which sets out objectives for the New South Wales public health
system.
4 Definitions
(1) In this Act:
accredited person means a person accredited under section 136.
ambulance officer means a member of staff of the NSW Health Service
who is authorised by the Director-General to exercise functions of an
ambulance officer under this Act.
assessable person--see section 17.
authorised medical officer of a mental health facility means:
(a) the medical superintendent of the mental health facility, or
Page 2
Mental Health Bill 2007 Clause 4
Preliminary Chapter 1
(b) a medical officer, nominated by the medical superintendent for
the purposes of this Act, attached to the mental health facility
concerned.
community treatment order means a community treatment order in
force under Part 3 of Chapter 3.
Court means the Supreme Court.
declared mental health facility means premises subject to an order in
force under section 109.
Deputy President means a person appointed as a Deputy President of
the Tribunal.
determination of the Tribunal includes an order, direction or decision
of the Tribunal.
Director-General means the Director-General of the Department of
Health.
director of community treatment--see section 50.
exercise a function includes perform a duty.
forensic patient means a person:
(a) who is detained in a mental health facility, correctional centre or
other place, or released from custody subject to conditions,
pursuant to an order:
(i) under section 10 (3) (c), 14, 17 (3), 25, 27 or 39 of the
Mental Health (Criminal Procedure) Act 1990, or
(ii) under section 7 (4) of the Criminal Appeal Act 1912
(including that subsection as applied by section 5AA (5) of
that Act), or
(b) who is granted bail pursuant to section 14 (b) (ii) or 17 (2) of the
Mental Health (Criminal Procedure) Act 1990, or
(c) who is detained in a mental health facility pending the person's
committal for trial for an offence or pending the person's trial for
an offence, or
(d) who has been transferred to a mental health facility while serving
a sentence of imprisonment and who has not been classified by
the Tribunal as an involuntary patient.
function includes a power, authority or duty.
guardian, in relation to the exercise of any function under this Act by
the guardian of a person under guardianship, means a guardian who is
able to exercise that function.
Page 3
Clause 4 Mental Health Bill 2007
Chapter 1 Preliminary
involuntary patient means:
(a) a person who is ordered to be detained as an involuntary patient
by a Magistrate after a mental health inquiry or by the Tribunal,
or
(b) a forensic patient who is re-classified as an involuntary patient.
medical superintendent:
(a) of a declared mental health facility, means the medical
practitioner appointed, under section 111, as medical
superintendent of the facility, or
(b) of a private mental health facility, means the medical practitioner
appointed, under section 124, as medical superintendent of the
facility.
mental health certificate--see section 17.
mental health facility means a declared mental health facility or a
private mental health facility.
mental health inquiry means an inquiry conducted by a Magistrate
under Division 3 of Part 2 of Chapter 3.
mental illness means a condition that seriously impairs, either
temporarily or permanently, the mental functioning of a person and is
characterised by the presence in the person of any one or more of the
following symptoms:
(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence
of any one or more of the symptoms referred to in paragraphs
(a)-(d).
mentally disordered person--see section 15.
mentally ill person--see section 14.
parent, of a child, means any person having parental responsibility
(within the meaning of the Children and Young Persons (Care and
Protection) Act 1998) for the child.
patient means a person who is admitted to a mental health facility in
accordance with this Act and who is in the facility following the
person's admission, and includes a person so admitted while absent
from the facility either with or without leave of absence.
person under guardianship means a person under guardianship within
the meaning of the Guardianship Act 1987.
premises includes any land, building and part of any building.
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Mental Health Bill 2007 Clause 4
Preliminary Chapter 1
President means the President of the Tribunal.
primary carer--see section 71.
private mental health facility means premises subject to a licence under
Division 2 of Part 2 of Chapter 5.
spouse means:
(a) a husband or wife, or
(b) the other party to a de facto relationship within the meaning of the
Property (Relationships) Act 1984,
but where more than one person would qualify as a spouse, means only
the last person to so qualify.
surgical operation--see section 98.
Tribunal means the Mental Health Review Tribunal constituted under
Chapter 6.
voluntary patient means:
(a) a person who has been admitted to a mental health facility under
Chapter 2, or
(b) a person who has been re-classified as a voluntary patient under
this Act.
(2) Notes included in this Act do not form part of this Act.
Page 5
Clause 5 Mental Health Bill 2007
Chapter 2 Voluntary admission to facilities
Chapter 2 Voluntary admission to facilities
5 Admission on own request
(1) A person may be admitted to a mental health facility as a voluntary
patient.
(2) An authorised medical officer may refuse to admit a person to a mental
health facility as a voluntary patient if the officer is not satisfied that the
person is likely to benefit from care or treatment as a voluntary patient.
(3) A person may be admitted to a mental health facility as a voluntary
patient whether or not the person is a mentally ill person or a mentally
disordered person.
6 Voluntary admission of children (cf 1990 Act, ss 13-15)
(1) An authorised medical officer must, as soon as practicable after
admitting a person under the age of 16 years as a voluntary patient, take
all reasonably practicable steps to notify a parent of the person of the
admission.
(2) An authorised medical officer must discharge a person of 14 or 15 years
of age who has been admitted as a voluntary patient if a parent of the
person objects to the admission to the officer, unless the person elects
to continue as a voluntary patient.
(3) A person under the age of 14 years must not be admitted as a voluntary
patient if a parent of the person objects to the admission to an authorised
medical officer.
(4) An authorised medical officer must discharge a person under the age of
14 years who has been admitted as a voluntary patient if a parent of the
person requests that the person be discharged.
7 Voluntary admission of persons under guardianship (cf 1990 Act, s 16)
(1) A person under guardianship may be admitted to a mental health facility
as a voluntary patient if the guardian of the person makes a request to
an authorised medical officer.
(2) A person under guardianship must not be admitted as a voluntary
patient if the person's guardian objects to the admission to the
authorised medical officer.
(3) An authorised medical officer must discharge a person under
guardianship who has been admitted as a voluntary patient if the
person's guardian requests that the person be discharged.
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Mental Health Bill 2007 Clause 8
Voluntary admission to facilities Chapter 2
8 Discharge of voluntary patients (cf 1990 Act, s 65)
(1) An authorised medical officer may discharge a voluntary patient at any
time if the officer is of the opinion that the patient is not likely to benefit
from further care or treatment as a voluntary patient.
(2) A voluntary patient may discharge himself or herself from or leave a
mental health facility at any time.
(3) An authorised medical officer must give notice of the discharge of a
voluntary patient who is a person under guardianship to the person's
guardian.
Note. Section 79 provides for appropriate information relating to follow-up care
to be provided to patients being discharged.
9 Review of voluntary patients (cf 1990 Act, s 63)
(1) The Tribunal must review, at least once every 12 months, the case of
each voluntary patient who has been receiving care or treatment, or
both, as a voluntary patient in a mental health facility for a continuous
period of more than 12 months.
(2) In addition to any other matters it considers on a review, the Tribunal is
to consider whether the patient consents to continue as a voluntary
patient.
(3) The Tribunal may on a review order the discharge of the patient from
the mental health facility.
(4) The Tribunal may defer the operation of an order for the discharge of a
patient for a period of up to 14 days, if the Tribunal thinks it is in the
best interests of the patient to do so.
(5) The medical superintendent of a mental health facility must notify the
Tribunal of the name of any voluntary patient whose case the Tribunal
is required to review.
10 Detention of voluntary patients in mental health facilities (cf 1990 Act,
s 18A)
(1) An authorised medical officer may cause a voluntary patient to be
detained in a mental health facility under Part 2 of Chapter 3 if the
officer considers the person to be a mentally ill person or a mentally
disordered person.
(2) Any such patient is taken to have been detained in the facility under
section 19 when the authorised medical officer takes action to detain the
patient.
Page 7
Clause 11 Mental Health Bill 2007
Chapter 2 Voluntary admission to facilities
11 Review of decisions made by authorised medical officer to refuse
admission or discharge voluntary patient (cf 1990 Act, s 19)
(1) This section applies to a decision made under this Chapter by an
authorised medical officer (other than a medical superintendent) to
refuse a person admission to a mental health facility as a voluntary
patient or to discharge a person as a voluntary patient.
(2) The person affected by a decision may apply to the medical
superintendent for a review of the decision.
(3) The medical superintendent must review a decision as soon as
practicable after receiving an application for its review and may confirm
the decision, admit or discharge the person as a voluntary patient or take
any other action under this Act that the medical superintendent thinks
fit.
Page 8
Mental Health Bill 2007 Clause 12
Involuntary admission and treatment in and outside facilities Chapter 3
Requirements for involuntary admission, detention and treatment Part 1
Chapter 3 Involuntary admission and treatment in
and outside facilities
Part 1 Requirements for involuntary admission,
detention and treatment
12 General restrictions on detention of persons
(1) A patient or other person must not be involuntarily admitted to, or
detained in or continue to be detained in, a mental health facility unless
an authorised medical officer is of the opinion that:
(a) the person is a mentally ill person or a mentally disordered
person, and
(b) no other care of a less restrictive kind is appropriate and
reasonably available to the person.
(2) If an authorised medical officer is not of that opinion about a patient or
other person at a mental health facility, the officer must refuse to detain,
and must not continue to detain, the person.
(3) An authorised medical officer may, immediately on discharging a
patient or person who has been detained in a mental health facility,
admit that person as a voluntary patient.
13 Criteria for involuntary admission etc as mentally ill person or mentally
disordered person (cf 1990 Act, s 8)
A person is a mentally ill person or a mentally disordered person for the
purpose of:
(a) the involuntary admission of the person to a mental health facility
or the detention of the person in a facility under this Act, or
(b) determining whether the person should be subject to a
community treatment order or be detained or continue to be
detained involuntarily in a mental health facility,
if, and only if, the person satisfies the relevant criteria set out in this
Part.
14 Mentally ill persons (cf 1990 Act, s 9)
(1) A person is a mentally ill person if the person is suffering from mental
illness and, owing to that illness, there are reasonable grounds for
believing that care, treatment or control of the person is necessary:
(a) for the person's own protection from serious harm, or
(b) for the protection of others from serious harm.
Page 9
Clause 15 Mental Health Bill 2007
Chapter 3 Involuntary admission and treatment in and outside facilities
Part 1 Requirements for involuntary admission, detention and treatment
(2) In considering whether a person is a mentally ill person, the continuing
condition of the person, including any likely deterioration in the
person's condition and the likely effects of any such deterioration, are
to be taken into account.
15 Mentally disordered persons (cf 1990 Act, s 10)
A person (whether or not the person is suffering from mental illness) is
a mentally disordered person if the person's behaviour for the time
being is so irrational as to justify a conclusion on reasonable grounds
that temporary care, treatment or control of the person is necessary:
(a) for the person's own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.
16 Certain words or conduct may not indicate mental illness or disorder (cf
1990 Act, s 11)
(1) A person is not a mentally ill person or a mentally disordered person
merely because of any one or more of the following:
(a) the person expresses or refuses or fails to express or has
expressed or refused or failed to express a particular political
opinion or belief,
(b) the person expresses or refuses or fails to express or has
expressed or refused or failed to express a particular religious
opinion or belief,
(c) the person expresses or refuses or fails to express or has
expressed or refused or failed to express a particular philosophy,
(d) the person expresses or refuses or fails to express or has
expressed or refused or failed to express a particular sexual
preference or sexual orientation,
(e) the person engages in or refuses or fails to engage in, or has
engaged in or refused or failed to engage in, a particular political
activity,
(f) the person engages in or refuses or fails to engage in, or has
engaged in or refused or failed to engage in, a particular religious
activity,
(g) the person engages in or has engaged in a particular sexual
activity or sexual promiscuity,
(h) the person engages in or has engaged in immoral conduct,
(i) the person engages in or has engaged in illegal conduct,
(j) the person has developmental disability of mind,
(k) the person takes or has taken alcohol or any other drug,
Page 10
Mental Health Bill 2007 Clause 17
Involuntary admission and treatment in and outside facilities Chapter 3
Involuntary detention and treatment in mental health facilities Part 2
(l) the person engages in or has engaged in anti-social behaviour,
(m) the person has a particular economic or social status or is a
member of a particular cultural or racial group.
(2) Nothing in this Part prevents, in relation to a person who takes or has
taken alcohol or any other drug, the serious or permanent physiological,
biochemical or psychological effects of drug taking from being
regarded as an indication that a person is suffering from mental illness
or other condition of disability of mind.
Part 2 Involuntary detention and treatment in mental
health facilities
Division 1 Preliminary
17 Definitions
In this Part:
assessable person means a person detained in a declared mental health
facility for whom a mental health inquiry is required to be held under
this Part.
mental health certificate means a certificate given under section 19.
Division 2 Admission to and initial detention in mental health
facilities
18 When a person may be detained in mental health facility
(1) A person may be detained in a declared mental health facility in the
following circumstances:
(a) on a mental health certificate given by a medical practitioner or
accredited person (see section 19),
(b) after being brought to the facility by an ambulance officer (see
section 20),
(c) after being apprehended by a police officer (see section 22),
(d) after an order for an examination and an examination or
observation by a medical practitioner or accredited person (see
section 23),
(e) on the order of a Magistrate or bail officer (see section 24),
(f) after a transfer from another health facility (see section 25),
(g) on a written request made to the authorised medical officer by a
primary carer, relative or friend of the person (see section 26).
Page 11
Clause 19 Mental Health Bill 2007
Chapter 3 Involuntary admission and treatment in and outside facilities
Part 2 Involuntary detention and treatment in mental health facilities
(2) A person may be detained, under a provision of this Part, in a health
facility that is not a declared mental health facility if it is necessary to
do so to provide medical treatment or care to the person for a condition
or illness other than a mental illness or other mental condition.
(3) In this Act, a reference to taking to and detaining in a mental health
facility includes, in relation to a person who is at a mental health facility,
but not detained in the mental health facility in accordance with this
Act, the detaining of the person in the mental health facility.
Note. A person taken to and detained in a mental health facility must be
provided with certain information, including a statement of the person's rights
(see section 74).
19 Detention on certificate of medical practitioner or accredited person (cf
1990 Act, s 21)
(1) A person may be taken to and detained in a declared mental health
facility on the basis of a certificate about the person's condition issued
by a medical practitioner or accredited person. The certificate is to be in
the form set out in Part 1 of Schedule 1.
(2) A mental health certificate may be given about a person only if the
medical practitioner or accredited person:
(a) has personally examined or observed the person's condition
immediately before or shortly before completing the certificate,
and
(b) is of the opinion that the person is a mentally ill person or a
mentally disordered person, and
(c) is satisfied that no other appropriate means for dealing with the
person is reasonably available, and that involuntary admission
and detention are necessary, and
(d) is not the primary carer or a near relative of the person.
(3) A mental health certificate may contain a police assistance endorsement
that police assistance is required if the person giving the certificate is of
the opinion that there are serious concerns relating to the safety of the
person or other persons if the person is taken to a mental health facility
without the assistance of a police officer. The endorsement is to be in
the form set out in Part 2 of Schedule 1.
(4) A mental health certificate may not be used to admit or detain a person
in a facility:
(a) in the case of a person certified to be a mentally ill person, more
than 5 days after it is given, or
(b) in the case of a person certified to be a mentally disordered
person, more than one day after it is given.
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Mental Health Bill 2007 Clause 20
Involuntary admission and treatment in and outside facilities Chapter 3
Involuntary detention and treatment in mental health facilities Part 2
(5) In this section:
near relative of a person means a parent, brother, sister, child or spouse
of the person and any other person prescribed for the purposes of this
definition.
20 Detention on information of ambulance officer
(1) An ambulance officer who provides ambulance services in relation to a
person may take the person to a declared mental health facility if the
officer believes on reasonable grounds that the person appears to be
mentally ill or mentally disturbed and that it would be beneficial to the
person's welfare to be dealt with in accordance with this Act.
(2) An ambulance officer may request police assistance if of the opinion
that there are serious concerns relating to the safety of the person or
other persons if the person is taken to a mental health facility without
the assistance of a police officer.
21 Police assistance
(1) A police officer to whose notice a police assistance endorsement on a
mental health certificate, or a request for assistance by an ambulance
officer under this Division, is brought must, if practicable:
(a) apprehend and take or assist in taking the person the subject of the
certificate or request to a declared mental health facility, or
(b) cause or make arrangements for some other police officer to do
so.
(2) A police officer may enter premises to apprehend a person under this
section, and may apprehend any such person, without a warrant and
may exercise any powers conferred by section 81 on a person who is
authorised under that section to take a person to a mental health facility
or another health facility.
Note. Section 81 sets out the persons who may take a person to a mental health
facility and their powers when doing so.
22 Detention after apprehension by police (cf 1990 Act, s 24)
(1) A police officer who, in any place, finds a person who appears to be
mentally ill or mentally disturbed may apprehend the person and take
the person to a declared mental health facility if the officer believes on
reasonable grounds that:
(a) the person is committing or has recently committed an offence or
that the person has recently attempted to kill himself or herself or
that it is probable that the person will attempt to kill himself or
herself or any other person or attempt to cause serious physical
harm to himself or herself or any other person, and
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(b) it would be beneficial to the person's welfare to be dealt with in
accordance with this Act, rather than otherwise in accordance
with law.
(2) A police officer may apprehend a person under this section without a
warrant and may exercise any powers conferred by section 81 on a
person who is authorised under that section to take a person to a mental
health facility or another health facility.
23 Detention after order for medical examination or observation (cf 1990
Act, s 27)
(1) A Magistrate or authorised officer may, by order, authorise a medical
practitioner or accredited person to visit and to personally examine or
personally observe a person to ascertain whether a mental health
certificate should be issued for the person.
(2) An order may be made if the Magistrate or officer is satisfied, by
evidence on oath, that:
(a) the person may be a mentally ill person or a mentally disordered
person, and
(b) because of physical inaccessibility, the person could not
otherwise be personally examined or personally observed.
(3) The order may also authorise any other person (including a police
officer) who may be required to assist the medical practitioner or
accredited person to accompany the medical practitioner or accredited
person.
(4) A person authorised to visit a person or accompany another person may
enter premises, if need be by force, in order to enable the examination
or observation to be carried out.
(5) A person who is examined or observed under this section may be
detained in accordance with section 19.
(6) A person who takes action under an order must, as soon as practicable
after taking the action, notify the person who made the order in writing
of the action.
(7) In this section:
authorised officer means an authorised officer within the meaning of
the Criminal Procedure Act 1986.
24 Detention on order of Magistrate or bail officer (cf 1990 Act, s 25)
A person may be taken to and detained in a declared mental health
facility in accordance with an order made under section 33 of the Mental
Health (Criminal Procedure) Act 1990.
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25 Detention after transfer from another health facility
(1) A person may be transferred from a health facility to a declared mental
health facility and detained in the mental health facility if a medical
officer of the health facility, or the authorised medical officer of the
mental health facility, considers the person to be a mentally ill person or
a mentally disordered person.
(2) Any such person is taken to have been detained in the declared mental
health facility under section 19 when the person is transferred to the
facility.
26 Detention on request of primary carer, relative or friend (cf 1990 Act, s 23)
(1) A person may be detained in a declared mental health facility on a
written request made to the authorised medical officer by the primary
carer or a relative or friend of the person.
(2) An authorised medical officer must not detain any such person unless
the officer is satisfied that, because of the distance required in order for
the person to be examined and the urgency of the circumstances, it is not
reasonably practicable to have the person detained on the basis of a
mental health certificate.
27 Steps for medical examination requirements for ongoing detention in
mental health facility
The following steps must be taken in relation to a person who is
detained in a mental health facility under this Division:
(a) Step 1 Initial examination by authorised medical officer
An authorised medical officer must examine the person as soon
as practicable (but not later than 12 hours) after the person arrives
at the facility or after the person is detained after being a
voluntary patient.
The person must not be detained after the examination unless the
officer certifies that, in the officer's opinion, the person is a
mentally ill person or a mentally disordered person.
(b) Step 2 Examination by second medical practitioner
The authorised medical officer must cause the person to be
examined by another medical practitioner as soon as possible
after giving the certificate in step 1. The second examiner must
be a psychiatrist if the authorised medical officer is not a
psychiatrist.
The second examiner must notify the authorised medical officer
in the form prescribed by the regulations if of the opinion that the
person is a mentally ill person or a mentally disordered person or
if not able to form such an opinion.
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(c) Step 3 Examination by third medical practitioner if second
examiner does not find person to be mentally ill or mentally
disordered
If the second examiner is not of the opinion that the person is a
mentally ill person or a mentally disordered person, the
authorised medical officer must cause the person to be examined
by a medical practitioner who is a psychiatrist, as soon as
practicable after being notified of that opinion.
The third examiner must notify the authorised medical officer in
the form prescribed by the regulations if of the opinion that the
person is a mentally ill person or a mentally disordered person.
(d) Step 4 Mental health inquiry or discharge
An authorised medical officer must bring the person before a
Magistrate for a mental health inquiry if:
(i) the person is found to be a mentally ill person by an
authorised medical officer on initial examination in step 1,
and to be a mentally ill person or a mentally disordered
person on examination in step 2 or step 3, or
(ii) the person is found to be a mentally disordered person by
an authorised medical officer on initial examination in step
1, and to be a mentally ill person on examination in step 2
or step 3.
The person must be brought before a Magistrate as soon as
practicable after the authorised medical officer is notified of the
relevant finding of the second or third examiner.
If the third examiner does not find that the person is a mentally ill
person or a mentally disordered person, the person must not be
detained after the third examination.
(e) Step 5 Mentally disordered persons
If a person is found to be a mentally disordered person by an
authorised medical officer on initial examination in step 1, and is
found to be a mentally disordered person on examination in step
2 or step 3, the person may be detained in the mental health
facility as a mentally disordered person.
28 Obligations of examining medical practitioners
(1) An authorised medical officer or other medical practitioner who
examines a person detained in a mental health facility under this
Division may take into account his or her own observations and any
other available evidence that he or she considers reliable and relevant in
forming an opinion as to whether the person is a mentally ill person or
a mentally disordered person.
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(2) A medical practitioner on whose certificate or request a person has been
admitted to a mental health facility must not examine the person under
section 27.
29 Treatment of persons detained in mental health facilities (cf 1990 Act,
s 31)
A person who authorises the administration of any medication to a
person detained in a mental health facility under this Division:
(a) must have due regard to the possible effects of the administration
of the medication, and
(b) must prescribe the minimum medication, consistent with proper
care, to ensure that the person is not prevented from
communicating adequately with any other person who may be
engaged to represent the person at a mental health inquiry.
30 Assessable persons may be reclassified as voluntary patients (cf 1990
Act, s 54)
An authorised medical officer may classify an assessable person as a
voluntary patient at any time before a mental health inquiry is held
about the person, but only if:
(a) the authorised medical officer is of the opinion that the person is
likely to benefit from care or treatment as a voluntary patient, and
(b) the patient agrees to be so classified or, if the person is a person
under guardianship or is under the age of 14 years, the person is
admitted in accordance with the procedures under this Act
applicable to admitting any such person as a voluntary patient.
31 Limited detention of mentally disordered persons (cf 1990 Act, s 35)
(1) A person detained as a mentally disordered person under step 5 in
section 27 (e) must not be detained in a mental health facility for a
continuous period of more than 3 days (not including weekends and
public holidays).
(2) If an authorised medical officer of a mental health facility is of the
opinion that an assessable person has ceased to be a mentally ill person
but is a mentally disordered person, the person must not be further
detained in the facility for a continuous period of more than 3 days (not
including weekends and public holidays).
(3) An authorised medical officer must examine a mentally disordered
person detained in a mental health facility at least once every 24 hours.
(4) The person must not be further detained in the mental health facility if,
on any such examination, the authorised medical officer is of the
opinion that the person is not a mentally disordered person or a mentally
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ill person or that other care of a less restrictive kind is appropriate and
reasonably available to the person.
(5) A person must not be admitted to and detained in a mental health facility
on the grounds that the person is a mentally disordered person on more
than 3 occasions in any 1 calendar month.
32 Limited further detention of persons taken to facility by police or after
Magistrate's or bail officer's order (cf 1990 Act, ss 36, 37, 37A)
(1) This section applies to a person detained in a mental health facility
under this Part who is required not to be detained or further detained in
the facility and who was taken to the facility:
(a) by a police officer under this Division after being apprehended by
a police officer because the officer believed the person to be
committing or to have recently committed an offence, or
(b) on the order of a Magistrate or an authorised officer under section
33 of the Mental Health (Criminal Procedure) Act 1990.
(2) An authorised medical officer must release the person into the custody
of any police officer who is present at the mental health facility to
ascertain the results of any examination or examinations of the person.
(3) If a police officer is not so present when the authorised medical officer
becomes aware that the person must not be detained or further detained,
the authorised medical officer must, as soon as practicable, notify a
police officer at the appropriate police station that the person will not be
further detained.
(4) The authorised medical officer may take any of the following actions in
relation to a person (other than a person referred to in subsection (5)),
after considering any matter communicated by a police officer as to the
intended apprehension of the person by a police officer:
(a) detain the person for a period not exceeding one hour pending the
person's apprehension by a police officer,
(b) admit the person in accordance with this Act as a voluntary
patient,
(c) discharge the person, in so far as it may be possible to do so, into
the care of the person's primary carer,
(d) discharge the person.
(5) If the person is a person ordered to be brought back before a court under
section 33 (1) (b) of the Mental Health (Criminal Procedure) Act 1990:
(a) it is the duty of the police officer notified by the authorised
medical officer to ensure that a police officer attends the mental
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health facility and apprehends the person as soon as practicable
after notification, and
(b) the authorised medical officer must detain the person pending the
person's apprehension by a police officer.
(6) A police officer may apprehend a person under this section without a
warrant.
33 Actions may be delayed because of other illnesses or conditions
Despite any other provision of this Act, an authorised medical officer is
not required:
(a) to take or complete a step referred to in section 27, or
(b) to bring a person before a Magistrate for a mental health inquiry,
while the person is suffering from a condition or illness other than a
mental illness or other mental condition and is not, in the officer's
opinion, fit to be the subject of the proposed action due to the
seriousness of the person's condition or illness.
Division 3 Continuing detention in mental health facilities
34 Mental health inquiries to be held
(1) A Magistrate is to hold an inquiry about an assessable person brought
before the Magistrate under step 4 in section 27 (d).
Note. Section 27 sets out the events that result in a mental health inquiry.
Notice of the inquiry is to be given to the person concerned and primary carers
in accordance with section 76.
(2) An authorised medical officer of the mental health facility in which an
assessable person is detained must:
(a) ensure that, as far as practicable, the person is brought before the
Magistrate dressed in street clothes, and
(b) make all necessary arrangements to ensure that all appropriate
medical witnesses appear before the Magistrate and other
relevant medical evidence concerning the person is placed before
the Magistrate.
(3) Schedule 2 has effect with respect to mental health inquiries.
35 Purpose and findings of mental health inquiries (cf 1990 Act, ss 50-52)
(1) A Magistrate holding a mental health inquiry is to determine whether or
not, on the balance of probabilities, the assessable person is a mentally
ill person.
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(2) For that purpose, the Magistrate is to do the following:
(a) consider the reports and recommendations of the authorised
medical officer and other medical practitioners who examined
the person under section 27 after the person's detention,
(b) consider any other information before the Magistrate,
(c) inquire about the administration of any medication to the person
and take account of its effect on the person's ability to
communicate,
(d) have due regard to any cultural factors relating to the person that
may be relevant to the determination,
(e) have due regard to any evidence given at the inquiry by an expert
witness concerning the person's cultural background and its
relevance to any question of mental illness.
(3) A Magistrate who is not satisfied, on the balance of probabilities, that
an assessable person is a mentally ill person must order that the person
be discharged from the mental health facility.
(4) The Magistrate may defer the operation of an order for the discharge of
a person for a period of up to 14 days, if the Magistrate thinks it is in the
best interests of the person to do so.
(5) A Magistrate who is satisfied, on the balance of probabilities, that an
assessable person is a mentally ill person may make any of the
following orders:
(a) an order that the person be discharged into the care of the
person's primary carer,
(b) a community treatment order,
(c) an order that the person be detained in or admitted to and detained
in a specified mental health facility for further observation or
treatment, or both, as an involuntary patient, for a specified
period of up to 3 months, if the Magistrate is of the opinion that
no other care of a less restrictive kind is appropriate and
reasonably available or that for any other reason it is not
appropriate to make any other order under this subsection.
36 Contempt of mental health inquiry (cf 1990 Act, s 291)
A person must not refuse, neglect or for any reason fail to obey or
comply with an order, direction, decision or determination of a
Magistrate under this Act.
Maximum penalty: 50 penalty units.
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37 Reviews of involuntary patients by Tribunal
(1) The Tribunal must review the case of each involuntary patient as
follows:
(a) at the end of the patient's initial period of detention as a result of
a mental health inquiry,
(b) at least once every 3 months for the first 12 months the person is
an involuntary patient,
(c) at least once every 6 months while the person is an involuntary
patient after the first 12 months of detention.
(2) An authorised medical officer must cause an involuntary patient to be
brought before the Tribunal as soon as practicable before the end of the
initial period of detention, if it appears to the officer that the person
should continue to be detained.
(3) The authorised medical officer must ensure that, as far as practicable, a
person brought before the Tribunal is dressed in street clothes.
(4) Despite subsection (1) (c), the Tribunal may review the case of an
involuntary patient at intervals of up to 12 months if it is of the opinion
that it is appropriate to do so.
38 Purpose and findings of reviews of involuntary patients
(1) The Tribunal is, on a review of an involuntary patient, to determine
whether the patient is a mentally ill person for whom no other care
(other than care in a mental health facility) is appropriate and
reasonably available.
(2) For that purpose, the Tribunal is to do the following:
(a) consider any information before it,
(b) inquire about the administration of any medication to the patient
and take account of its effect on the patient's ability to
communicate.
(3) If the Tribunal determines that the patient is not a mentally ill person,
the patient must be discharged from the mental health facility in which
the patient is detained.
(4) If the Tribunal determines that the patient is a mentally ill person and
that no other care of a less restrictive kind is appropriate and reasonably
available to the patient, the Tribunal must make an order that the patient
continue to be detained as an involuntary patient in a mental health
facility for further observation or treatment, or both.
(5) In any other case that the Tribunal determines that a patient is a mentally
ill person, it must make an order that the patient be discharged from the
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mental health facility in which the patient is detained and may make a
community treatment order.
(6) The Tribunal may defer the operation of an order for the discharge of a
patient for a period of up to 14 days, if the Tribunal thinks it is in the
best interests of the patient to do so.
(7) An order made by the Tribunal under this section is to be in the form
approved by the President.
39 Medical examination of involuntary patients (cf 1990 Act, s 61)
(1) An authorised medical officer must medically examine each
involuntary patient of the mental health facility, or cause each
involuntary patient to be medically examined, to determine whether the
patient's continued detention in the facility is necessary.
(2) The medical examinations are to be carried out at intervals of not more
than 3 months.
40 Re-classification of involuntary patients as voluntary patients (cf 1990
Act, s 64)
(1) An authorised medical officer may classify an involuntary patient as a
voluntary patient of the mental health facility at any time.
(2) A patient may be so classified only if:
(a) the authorised medical officer is of the opinion that the patient is
likely to benefit from care or treatment as a voluntary patient, and
(b) the patient agrees to be so classified or, if the patient is a person
under guardianship, the patient is admitted in accordance with the
procedures under this Act applicable to admitting such persons as
voluntary patients.
(3) Without limiting subsection (1), a person who is discharged as an
involuntary patient may be admitted as a voluntary patient immediately
on discharge.
Note. For additional circumstances when a patient or person must be released
from a mental health facility, see section 12.
41 Discharge on making of community treatment order (cf 1990 Act, s 132)
(1) An authorised medical officer must discharge a patient or person who is
detained in a mental health facility when a community treatment order
is made about the patient or person and any order authorising the
patient's or person's detention ceases to have effect.
(2) This section does not prevent an affected person subject to a community
treatment order from being admitted to or detained in a mental health
facility.
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42 Discharge of involuntary patients on own application (cf 1990 Act, s 67)
(1) An involuntary patient of a mental health facility or another person
detained in a mental health facility may make an application to the
authorised medical officer to be discharged.
(2) The authorised medical officer may discharge the patient or person.
Note. The authorised medical officer may also classify a patient as a voluntary
patient (see section 40).
43 Discharge of involuntary patients on application of primary carer (cf
1990 Act, s 68)
(1) The primary carer of an involuntary patient or another person detained
in a mental health facility may, at any time, apply to an authorised
medical officer of the mental health facility for the discharge of the
patient or person.
(2) The authorised medical officer may discharge the patient or person if:
(a) the applicant gives the authorised medical officer a written
undertaking that the patient or person will be properly taken care
of, and
(b) the authorised medical officer is satisfied that adequate measures
will, so far as is reasonably practicable, be taken to prevent the
patient or person from causing harm to himself or herself or
others.
44 Appeals against discharge refusals (cf 1990 Act, ss 69, 70)
(1) An involuntary patient or person detained at a mental health facility (the
applicant) who applies to be discharged, or a person who applies for the
discharge of the applicant, or a person appointed by the applicant, may
appeal to the Tribunal if:
(a) the authorised medical officer refuses the application, or
(b) the authorised medical officer fails to determine the application
within 3 working days after it is made.
(2) An appeal may be made orally or in writing and is to be made in
accordance with the regulations.
(3) The authorised medical officer must provide the Tribunal with a report
about the applicant, including the officer's reasons for refusing to
discharge the applicant or failing to determine the application.
(4) For the purpose of determining an appeal, the Tribunal has and may
exercise the functions of the authorised medical officer with respect to
the discharge application and may make an order accordingly.
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(5) In addition, the Tribunal may determine that no further right of appeal
may be exercised under this section before the date on which the person
is next reviewed by the Tribunal under this Act, if it thinks it appropriate
to do so, having regard to the following:
(a) the interval between the last determination under this Act that the
applicant was a mentally ill person and the date of the appeal,
(b) the frequency of appeals under this section made by or on behalf
of the applicant,
(c) the last report about the applicant by the authorised medical
officer under this section,
(d) any other matter the Tribunal considers relevant.
45 Review and discharge of absent patients (cf 1990 Act, ss 72, 73)
(1) An authorised medical officer must review the mental health and
welfare of a patient or person detained in a mental health facility under
this Act who is absent from the mental health facility with permission if
the absence is for a continuous period of more than 28 days.
(2) The authorised medical officer must discharge the patient or person
following the review unless the officer is of the opinion that further
detention of the patient or person in the facility is necessary.
(3) An authorised medical officer of a mental health facility must discharge
a patient or person detained in the facility under this Act who is absent
from the mental health facility for a single period exceeding 12 months.
Division 4 Leave of absence from mental health facilities
46 Application of Division
This Division applies to an involuntary patient or a person who is
detained in a mental health facility but does not apply to a forensic
patient.
47 Leave of absence on compassionate grounds, medical grounds or other
grounds
(1) An authorised medical officer may permit a person to be absent from a
mental health facility for the period, and on the conditions, that the
officer thinks fit.
(2) Permission may be given on compassionate grounds, on the ground that
medical treatment is required or on any other ground the authorised
medical officer thinks fit.
Note. A person may also be transferred from a mental health facility to another
health facility on medical grounds (see section 80).
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(3) An authorised medical officer may not grant leave of absence unless the
officer is satisfied that, as far as is practicable, adequate measures have
been taken to prevent the person concerned from causing harm to
himself or herself or others.
48 Apprehension of persons not permitted to be absent from mental health
facility (cf 1990 Act, ss 75, 76)
(1) An authorised medical officer of a mental health facility may apprehend
a person, or direct a person to be apprehended, if:
(a) the person fails to return to the facility on or before the expiry of
a permitted period of absence granted under this Part or fails to
comply with a condition of the permission, or
(b) the person absents himself or herself from the facility otherwise
than in accordance with this Act.
(2) The person may be apprehended by any of the following persons:
(a) an authorised medical officer or any other suitably qualified
person employed at the mental health facility,
(b) a police officer,
(c) a person authorised by the Minister or the authorised medical
officer,
(d) a person assisting a person referred to in paragraph (a), (b) or (c).
(3) A person who is apprehended is to be conveyed to and detained in the
mental health facility from which the person absented himself or
herself.
49 Police assistance
(1) An authorised medical officer may request that a police officer
apprehend, or assist in apprehending, a person under this Division if the
officer is of the opinion that there are serious concerns relating to the
safety of the person or other persons if the person is taken to a mental
health facility without the assistance of a police officer.
(2) A police officer to whose notice any such request is brought may:
(a) apprehend and take or assist in taking the person to the mental
health facility from which the person absented himself or herself,
or
(b) cause or make arrangements for some other police officer to do
so.
(3) A police officer may enter premises to apprehend a person under this
section or section 48, and may apprehend any such person, without a
warrant and may exercise any powers conferred under section 81 on a
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person who is authorised under that section to take a person to a mental
health facility or another health facility.
Note. Section 81 sets out the persons who may take a person to a mental health
facility and their powers when doing so.
Part 3 Involuntary treatment in the community
Division 1 Applications for and making of community
treatment orders
50 Definitions
In this Part:
affected person means a person for whom a community treatment order
has been applied for or made.
breach notice--see section 58 (3).
breach order--see section 58 (4).
director of community treatment of a mental health facility means a
person appointed under section 113 as the director of community
treatment of the mental health facility.
psychiatric case manager means a person employed at a declared
mental health facility who is appointed under section 114 as the
psychiatric case manager of an affected person.
treatment plan--see section 54.
51 Community treatment orders
(1) A community treatment order authorising the compulsory treatment in
the community of a person may be made by the Tribunal or a
Magistrate.
Note. Section 56 sets out the matters to be included in community treatment
orders.
(2) The following persons may apply for a community treatment order for
the treatment of a person:
(a) the authorised medical officer of a mental health facility in which
the affected person is detained or is a patient under this Act,
(b) a medical practitioner who is familiar with the clinical history of
the affected person,
(c) any other person prescribed by the regulations.
(3) An application may be made about a person who is detained in or a
patient in a mental health facility or a person who is not in a mental
health facility.
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(4) An application may be made about a person who is subject to a current
community treatment order.
(5) A community treatment order may be made in the following
circumstances and may replace an existing order:
(a) following a mental health inquiry,
(b) on a review of a patient by the Tribunal,
(c) on an application otherwise being made to the Tribunal.
52 Notice of applications
(1) The applicant for a community treatment order must notify the affected
person in writing of the application.
(2) The notice of the application is to include a copy of the proposed
treatment plan for the affected person.
(3) If the affected person is not detained in a mental health facility, the
application must be heard not earlier than 14 days after the notice is
given.
53 Determination of applications for community treatment orders
(1) A Magistrate or the Tribunal is, on an application for a community
treatment order, to determine whether the affected person is a person
who should be subject to the order.
(2) For that purpose, the Magistrate or Tribunal is to consider the following:
(a) a treatment plan for the affected person proposed by the declared
mental health facility that is to implement the proposed order,
(b) if the affected person is subject to an existing community
treatment order, a report by the psychiatric case manager of the
person as to the efficacy of that order,
(c) a report as to the efficacy of any previous community treatment
order for the affected person,
(d) any other information placed before the Magistrate or Tribunal.
(3) The Magistrate or Tribunal may make a community treatment order for
an affected person if the Magistrate or Tribunal determines that:
(a) no other care of a less restrictive kind is appropriate and
reasonably available to the person and that the affected person
would benefit from the order as the least restrictive alternative
consistent with safe and effective care, and
(b) a declared mental health facility has an appropriate treatment
plan for the affected person and is capable of implementing it,
and
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Clause 54 Mental Health Bill 2007
Chapter 3 Involuntary admission and treatment in and outside facilities
Part 3 Involuntary treatment in the community
(c) if the affected person has been previously diagnosed as suffering
from a mental illness, the affected person has a previous history
of refusing to accept appropriate treatment.
(4) A Magistrate may not make a community treatment order unless the
Magistrate is of the opinion that the person is a mentally ill person.
(5) For the purposes of this section, a person has a previous history of
refusing to accept appropriate treatment if the following are satisfied:
(a) the affected person has previously refused to accept appropriate
treatment,
(b) when appropriate treatment has been refused, there has been a
relapse into an active phase of mental illness,
(c) the relapse has been followed by mental or physical deterioration
justifying involuntary admission to a mental health facility
(whether or not there has been such an admission),
(d) care and treatment following involuntary admission resulted, or
could have resulted, in an amelioration of, or recovery from, the
debilitating symptoms of a mental illness or the short-term
prevention of deterioration in the mental or physical condition of
the affected person.
(6) The Tribunal or Magistrate must not specify a period longer than
12 months as the period for which a community treatment order is in
force.
(7) In determining the duration of a community treatment order, the
Tribunal or Magistrate must take into account the estimated time
required:
(a) to stabilise the condition of the affected person, and
(b) to establish, or re-establish, a therapeutic relationship between
the person and the person's psychiatric case manager.
54 Requirements for treatment plans under community treatment orders
A treatment plan for an affected person is to consist of the following:
(a) in general terms, an outline of the proposed treatment,
counselling, management, rehabilitation or other services to be
provided to implement the community treatment order,
(b) in specific terms, the method by which, the frequency with
which, and the place at which, the services would be provided for
that purpose.
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Involuntary admission and treatment in and outside facilities Chapter 3
Involuntary treatment in the community Part 3
55 Community treatment order may be made in absence of affected person
A Magistrate or the Tribunal may make a community treatment order in
the absence of the affected person, if the person has been given notice
of the application under this Part.
56 Form and duration of community treatment orders
(1) A community treatment order is to:
(a) nominate the declared mental health facility that is to implement
the treatment plan for the affected person, and
(b) require the affected person to be present, at the reasonable times
and places specified in the order to receive the medication and
therapy, counselling, management, rehabilitation and other
services provided in accordance with the treatment plan.
(2) A community treatment order ceases to have effect at the end of the
period specified in the order or, if no period is specified, 12 months after
the order is made.
Note. Section 53 (6) specifies that the maximum period for an order is to be 12
months.
(3) A community treatment order has no effect while an affected person is
detained in a mental health facility (otherwise than under this Part), or
is a voluntary patient.
(4) The fact that an affected person is the subject of proceedings before the
Tribunal does not, unless the Tribunal otherwise orders, affect the
operation or duration of the community treatment order.
(5) The time for which a community treatment order is in force does not
cease to run during any period in which this section provides that it has
no effect.
Note. The Tribunal may vary or revoke a community treatment order in
accordance with section 65.
Division 2 Operation of community treatment orders
57 Duties and functions of affected person and mental health facility (cf
1990 Act, ss 145, 146)
(1) The affected person must comply with the community treatment order.
(2) The director of community treatment of the declared mental health
facility implementing a treatment plan under a community treatment
order may take all reasonable steps to have medication administered,
and services provided, in accordance with the order.
(3) Medication may be administered to an affected person for the purposes
of a community treatment order without the person's consent if it is
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Clause 58 Mental Health Bill 2007
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Part 3 Involuntary treatment in the community
administered without the use of more force than would be required if the
person had consented to its administration.
(4) The director of community treatment of a declared mental health facility
implementing a treatment plan under a community treatment order must
provide to the affected person particulars of the kind and dosages of
medication that are being administered, or have recently been
administered, to the person, if requested to do so by:
(a) the affected person, or
(b) the primary carer of the affected person, or
(c) if the affected person consents, another person who would be
entitled to apply for a community treatment order in relation to
the person.
(5) A person implementing a treatment plan under a community treatment
order may enter the land (but not the dwelling) on which an affected
person's residence is situated without the person's consent for the
purpose of implementing the community treatment order.
58 Breach of community treatment order
(1) The director of community treatment of a declared mental health facility
implementing a community treatment order must take the steps set out
in this section if the affected person in any way refuses or fails to
comply with the community treatment order and the director is of the
opinion that:
(a) the mental health facility has taken all reasonable steps to
implement the order, and
(b) there is a significant risk of deterioration in the mental or physical
condition of the affected person.
(2) The director must:
(a) make a written record of the opinions, the facts on which they are
based and the reasons for forming them, and
(b) cause the affected person to be informed that any further refusal
to comply with the order will result in the person being taken to
the declared mental health facility or another appropriate mental
health facility and treated there.
(3) On a further refusal or failure by the affected person to comply with the
community treatment order, the director may cause the person to be
given a written notice (a breach notice):
(a) requiring the person to accompany a member of staff of the NSW
Health Service employed at the declared mental health facility for
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Involuntary treatment in the community Part 3
treatment in accordance with the order or to a specified mental
health facility, and
(b) warning the person that the assistance of a police officer may be
obtained in order to ensure compliance with the order.
(4) On the refusal or failure by the affected person to comply with a breach
notice, the director may, in writing, make an order (a breach order) that
the affected person be taken to a specified declared mental health
facility.
59 Police assistance
(1) A police officer to whose notice a breach order is brought must, if
practicable:
(a) apprehend and take or assist in taking the person the subject of the
order to the mental health facility, or
(b) cause or make arrangements for some other police officer to do
so.
(2) A police officer may enter premises to apprehend a person under this
section, and may apprehend any such person, without a warrant and
may exercise any powers conferred by section 81 on a person who is
authorised under that section to take a person to a mental health facility
or another health facility.
Note. Section 81 sets out the persons who may take a person to a mental health
facility and their powers when doing so.
60 Procedures at facility after breach notice or breach order
(1) An affected person who is at a mental health facility as a result of the
giving of a breach notice or a breach order:
(a) may be given treatment in accordance with the community
treatment order, and
(b) may be assessed by a medical practitioner for involuntary
admission to a mental health facility.
(2) A person who is at a mental health facility as a result of a breach notice
or breach order may be released after treatment if treatment is accepted
or may be dealt with at the mental health facility or taken to another
declared mental health facility if treatment is refused.
61 Review of affected person at mental health facility after breach order (cf
1990 Act, ss 141, 142)
(1) This section applies to an affected person who is taken to or is at a
declared mental health facility after refusing treatment at a mental
health facility consequent on a breach order.
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Clause 62 Mental Health Bill 2007
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Part 3 Involuntary treatment in the community
(2) An authorised medical officer must, not later than 12 hours after the
person is taken to the declared mental health facility, review the affected
person's mental condition and determine whether the person is a
mentally ill person or a mentally disordered person.
(3) The authorised medical officer may cause the person to be given
treatment in accordance with the community treatment order.
(4) If the authorised medical officer determines that the affected person is
a mentally ill person or a mentally disordered person for whom no other
care of a less restrictive kind is appropriate or reasonably available, the
person is to be detained in the declared mental health facility for further
observation or treatment, or both.
(5) The affected person may be detained until one of the following events
occurs:
(a) in the case of a mentally ill person, the term of the community
treatment order ends or the person is discharged from the
declared mental health facility under this Act,
(b) in the case of a mentally disordered person, the maximum period
for which a person may be held as such a person under Part 2
ends, the term of the community treatment order ends or the
person is discharged from the declared mental health facility
under this Act.
62 Discharge and detention of affected persons
(1) An affected person detained in a declared mental health facility under
this Division must be discharged from the facility:
(a) if the authorised medical officer determines that the person is not
a mentally ill person or a mentally disordered person or is of the
opinion that other care of a less restrictive kind is appropriate and
reasonably available to the person, or
(b) if the authorised medical officer decides at any time that it is
appropriate to do so.
(2) An authorised medical officer may do all necessary things to cause a
person to be detained in a mental health facility under Part 2 at the end
of the term of a community treatment order if the officer considers the
person to be a mentally ill person.
(3) Any such person is taken to be detained in the mental health facility
under section 19 when the authorised medical officer takes action to
detain the person.
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63 Review by Tribunal of detained affected persons (cf 1990 Act, s 143A)
(1) An authorised medical officer must cause a person detained in a
declared mental health facility under this Division to be brought before
the Tribunal not later than 3 months after the person is detained.
(2) The authorised medical officer must ensure that, as far as practicable, a
person brought before the Tribunal is dressed in street clothes.
(3) This section does not apply if the affected person's community
treatment order will end less than 3 months after the person is detained
under this Division.
64 Purpose and findings of reviews (cf 1990 Act, s 143A)
(1) The Tribunal is, on a review of an affected person, to determine whether
the person is a mentally ill person for whom no other care (other than
care in a mental health facility) is appropriate and reasonably available.
(2) For that purpose, the Tribunal is to do the following:
(a) consider any information before it,
(b) inquire about the administration of any medication to the person
and take account of its effect on the person's ability to
communicate.
(3) If the Tribunal determines that the affected person is a mentally ill
person or a mentally disordered person for whom no other care of a less
restrictive kind is appropriate or reasonably available, the Tribunal must
determine whether the person should be detained in the declared mental
health facility until the end of the community treatment order.
(4) If the Tribunal does not determine that the person is a mentally ill person
or is of the opinion that other care of a less restrictive kind is appropriate
or reasonably available:
(a) it must make an order that the person be discharged from the
declared mental health facility in which the person is detained,
and
(b) it may make any community treatment order that it could make
on a review of an involuntary patient.
(5) The Tribunal may defer the operation of an order for the discharge of an
affected person for a period of up to 14 days, if the Tribunal thinks it is
in the best interests of the affected person to do so.
(6) An order made by the Tribunal under this section is to be in the form
approved by the President.
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Clause 65 Mental Health Bill 2007
Chapter 3 Involuntary admission and treatment in and outside facilities
Part 3 Involuntary treatment in the community
Division 3 Revocation, variation and review of community
treatment orders
65 Variation or revocation of orders by Tribunal (cf 1990 Act, s 148)
(1) The Tribunal may vary or revoke a community treatment order, on
application being made under this section.
(2) An application may be made by any of the following:
(a) the affected person,
(b) the psychiatric case manager of the affected person,
(c) any person who could have applied for the order.
(3) An application may be made only if:
(a) there has been a substantial or material change in the
circumstances surrounding the making of the order, or
(b) relevant information that was not available when the order was
made has become available.
(4) An order may be varied only if the order, as varied, could be made in
relation to the affected person.
(5) The regulations may make provision for or with respect to applications
under this section and the orders that may be made by the Tribunal.
66 Revocation by director of community treatment (cf 1990 Act, s 149)
The director of community treatment of a declared mental health facility
implementing a treatment plan under a community treatment order may
revoke a community treatment order if of the opinion that the affected
person is not likely to benefit from a continuation of the order.
67 Appeals (cf 1990 Act, s 151)
(1) The affected person under a community treatment order made by the
Tribunal may at any time appeal to the Court:
(a) if the term of the order exceeds 6 months or no term is specified
in the order, against the duration of the order, or
(b) on any question of law or fact arising from the order or its
making.
(2) The affected person under a community treatment order made by a
Magistrate may at any time appeal to the Tribunal:
(a) if the term of the order exceeds 6 months or no term is specified
in the order, against the duration of the order, or
(b) on any question of law or fact arising from the order or its
making.
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Involuntary treatment in the community Part 3
(3) The regulations may make provision for or with respect to appeals to the
Tribunal under this section and the orders that may be made by the
Tribunal in respect of any such appeal.
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Clause 68 Mental Health Bill 2007
Chapter 4 Care and treatment
Part 1 Rights of patients or detained persons and primary carers
Chapter 4 Care and treatment
Part 1 Rights of patients or detained persons and
primary carers
Division 1 General
68 Principles for care and treatment
It is the intention of Parliament that the following principles are, as far
as practicable, to be given effect to with respect to the care and
treatment of people with a mental illness or mental disorder:
(a) people with a mental illness or mental disorder should receive the
best possible care and treatment in the least restrictive
environment enabling the care and treatment to be effectively
given,
(b) people with a mental illness or mental disorder should be
provided with timely and high quality treatment and care in
accordance with professionally accepted standards,
(c) the provision of care and treatment should be designed to assist
people with a mental illness or mental disorder, wherever
possible, to live, work and participate in the community,
(d) the prescription of medicine to a person with a mental illness or
mental disorder should meet the health needs of the person and
should be given only for therapeutic or diagnostic needs and not
as a punishment or for the convenience of others,
(e) people with a mental illness or mental disorder should be
provided with appropriate information about treatment, treatment
alternatives and the effects of treatment,
(f) any restriction on the liberty of patients and other people with a
mental illness or mental disorder and any interference with their
rights, dignity and self-respect is to be kept to the minimum
necessary in the circumstances,
(g) the age-related, gender-related, religious, cultural, language and
other special needs of people with a mental illness or mental
disorder should be recognised,
(h) every effort that is reasonably practicable should be made to
involve persons with a mental illness or mental disorder in the
development of treatment plans and plans for ongoing care,
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Mental Health Bill 2007 Clause 69
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Rights of patients or detained persons and primary carers Part 1
(i) people with a mental illness or mental disorder should be
informed of their legal rights and other entitlements under this
Act and all reasonable efforts should be made to ensure the
information is given in the language, mode of communication or
terms that they are most likely to understand,
(j) the role of carers for people with a mental illness or mental
disorder and their rights to be kept informed should be given
effect.
69 Offence to ill-treat patients (cf 1990 Act, s 298)
An authorised medical officer, or any other person employed at a mental
health facility, must not wilfully strike, wound, ill-treat or neglect a
patient or person detained at the facility.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or
both.
70 Assistance of interpreters (cf 1990 Act, s 292)
A medical practitioner must arrange for an interpreter to be present at a
medical examination of a person for the purposes of this Act, if the
person is unable to communicate adequately in English but can
communicate adequately in another language.
71 Primary carer
(1) The primary carer of a person (the patient) for the purposes of this Act
is:
(a) the guardian of the patient, or
(b) the parent of a patient who is a child (subject to any nomination
by a patient referred to in paragraph (c)), or
(c) if the patient is over the age of 14 years and is not a person under
guardianship, the person nominated by the patient as the primary
carer under this Part under a nomination that is in force, or
(d) if the patient is not a patient referred to in paragraph (a) or (b) or
there is no nomination in force as referred to in paragraph (c):
(i) the spouse of the patient, if any, if the relationship between
the patient and the spouse is close and continuing, or
(ii) any person who is primarily responsible for providing
support or care to the patient (other than wholly or
substantially on a commercial basis), or
(iii) a close friend or relative of the patient.
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Clause 72 Mental Health Bill 2007
Chapter 4 Care and treatment
Part 1 Rights of patients or detained persons and primary carers
(2) In this section:
close friend or relative of a patient means a friend or relative of the
patient who maintains both a close personal relationship with the patient
through frequent personal contact and a personal interest in the patient's
welfare and who does not provide support to the patient wholly or
substantially on a commercial basis.
72 Nomination of primary carer
(1) A person may nominate a person to be the person's primary carer for the
purposes of this Act.
(2) A person may nominate persons who are excluded from being given
notice or information about the person under this Act and may revoke
or vary any such nomination.
(3) A person who is over the age of 14 years and under the age of 18 years
may not exclude the person's parent by a nomination under
subsection (2).
(4) A nomination, variation or revocation is to be made in writing and may
be given to an authorised medical officer at a mental health facility or a
director of community treatment.
(5) A nomination remains in force for the period prescribed by the
regulations or until it is revoked in writing.
(6) An authorised medical officer or a director of community treatment is,
in carrying out his or her functions under this Act or the regulations, to
give effect to a nomination or a variation or revocation of a nomination,
if notified of the nomination, variation or revocation.
(7) An authorised medical officer or a director of community treatment is
not required to give effect to a nomination, or a variation or revocation
of a nomination, if the officer or director reasonably believes:
(a) that to do so may put the patient or nominated person or any other
person at risk of serious harm, or
(b) that the person who made the nomination, variation or revocation
was incapable of making the nomination, variation or revocation.
Division 2 Notification and information sharing
73 Information about medication
(1) On a request made under this section, an authorised medical officer of
a mental health facility must provide particulars of the types of
medication and dosages of each type of medication currently being
administered or recently administered to a patient or person detained in
the facility.
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Mental Health Bill 2007 Clause 74
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(2) A request may be made by:
(a) the patient or person detained in the mental health facility, or
(b) the primary carer of any such patient or person, or
(c) a representative of any such patient or person at a mental health
inquiry or before the Tribunal.
74 Information to be given to persons to be detained
(1) An authorised medical officer of a mental health facility must give the
following persons an oral explanation and a written statement of their
legal rights and other entitlements under this Act:
(a) a person who is taken to the facility under Part 2 of Chapter 3,
(b) a person who is a voluntary patient in the facility, if it is decided
to take steps to detain the person under Part 2 of Chapter 3,
(c) an affected person who is detained in the facility after a breach
notice or breach order relating to a community treatment order, if
it is decided to take steps to detain the person under Part 2 of
Chapter 3.
(2) The explanation and statement must be given as soon as practicable
after the person is taken to a mental health facility or it is decided to take
steps to detain the person.
(3) The written statement is to be in the form set out in Schedule 3.
(4) If the authorised medical officer is of the opinion that a person is not
capable of understanding the explanation or statement when it is first
given, another explanation or statement must be given to the person not
later than 24 hours before a mental health inquiry is held about the
person.
(5) The authorised medical officer must, if the person is unable to
communicate adequately in English but is able to communicate
adequately in another language, arrange for the oral explanation to be
given in that other language.
75 Notification to primary carer of initial detention
(1) An authorised medical officer must, not later than 24 hours after a
person is detained in a mental health facility, take all reasonably
practicable steps to notify the primary carer of the person that the person
is detained in the facility.
(2) Notice need not be given if the person is discharged or classified as a
voluntary patient within that period.
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Clause 76 Mental Health Bill 2007
Chapter 4 Care and treatment
Part 1 Rights of patients or detained persons and primary carers
76 Notification of mental health inquiries
(1) An authorised medical officer must notify an assessable person detained
in the mental health facility that:
(a) a mental health inquiry will be held about the person, and
(b) all reasonably practicable steps will be taken to give notice of the
inquiry to the person's primary carer.
(2) The notice is to be given when the authorised medical officer becomes
aware that the person is an assessable person.
(3) The authorised medical officer must, in accordance with the
regulations, take all reasonably practicable steps to give notice to the
primary carer of an assessable person of a proposed mental health
inquiry.
77 Notification to new involuntary patients of appeal rights (cf 1990 Act, s 55)
(1) An authorised medical officer of a mental health facility must give, or
cause to be given, to a person ordered by a Magistrate after a mental
health inquiry to be detained in the facility as an involuntary patient a
statement of the rights of appeal conferred on the person as an
involuntary patient under this Act.
(2) The statement must be given as soon as practicable after the order is
made.
(3) The statement is to be in the form approved by the Minister.
78 Notifications to primary carer of events affecting patients or detained
persons
(1) An authorised medical officer of a mental health facility must take all
reasonably practicable steps to notify the primary carer of a patient or
person detained in the facility if any of the following events occurs:
(a) the patient or person is absent from the facility without
permission or fails to return at the end of a period of leave,
(b) it is proposed to transfer the patient or person, or the patient or
person is transferred, to another mental health facility or other
facility,
(c) the patient or person is discharged from the mental health facility,
(d) the patient or person is re-classified as a voluntary patient,
(e) it is proposed to apply to the Tribunal for an ECT inquiry under
Part 2 or to ascertain whether the patient or person is capable of
giving informed consent to electro convulsive therapy,
(f) a surgical operation is performed on the patient or person under
Part 3,
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Care and treatment Chapter 4
Rights of patients or detained persons and primary carers Part 1
(g) it is proposed to apply to the Director-General or the Tribunal for
consent to a surgical operation or special medical treatment under
Part 3.
(2) The authorised medical officer must give the notice as soon as
practicable after becoming aware that the event has occurred.
(3) In the case of a proposed transfer, the notice must be given before the
relevant order or arrangement is made, except in an emergency.
79 Discharge and other planning
(1) An authorised medical officer of a mental health facility must take all
reasonably practicable steps to ensure that a patient or person detained
in the facility, and the primary carer of the patient or person, are
consulted in relation to planning the patient's or person's discharge and
any subsequent treatment or other action considered in relation to the
patient or person.
(2) In planning the discharge of any such patient or person, and any
subsequent treatment or other action considered in relation to the patient
or person, the authorised medical officer must take all reasonably
practicable steps to consult with agencies involved in providing relevant
services to the patient or person, any primary carer of the patient or
person and any dependent children or other dependants of the patient or
person.
(3) An authorised medical officer of a mental health facility must take all
reasonably practicable steps to provide any such patient or person who
is discharged from the facility, and the patient's or person's primary
carer, with appropriate information as to follow-up care.
Division 3 Transfer of patients
80 Transfer of patients to or from mental health facilities (cf 1990 Act, s 78)
(1) An involuntary patient or a person detained in a mental health facility
may be transferred from the mental health facility to another mental
health facility or another health facility.
(2) A person who is a patient in a health facility other than a mental health
facility may be transferred from the health facility to a declared mental
health facility for the purpose of detaining the person under Part 2 of
Chapter 3.
Note. Section 25 sets out the procedure for detaining such a person in a
declared mental health facility.
(3) A transfer of a patient or person to a health facility other than a mental
health facility may be made on the grounds that the patient or person
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Clause 81 Mental Health Bill 2007
Chapter 4 Care and treatment
Part 1 Rights of patients or detained persons and primary carers
requires medical treatment for a condition or illness (other than a mental
illness or other mental condition).
(4) A transfer under this section is to be done in accordance with an
arrangement between medical officers of each facility or an order in
writing by the Director-General.
(5) An arrangement under this section is sufficient authority for the transfer
of a patient or person, and the reception into, the mental health facility
or other health facility to which the patient or person is transferred.
81 Transport of persons to and from mental health facilities and other
health facilities
(1) The persons listed below may take to or from a mental health facility or
another health facility any person who is authorised by this Act to be
taken, or transferred, to or from the facility:
(a) a member of staff of the NSW Health Service,
(b) an ambulance officer,
(c) a police officer,
(d) a person prescribed by the regulations.
(2) A person authorised by this Act to take a person to or from a mental
health facility or other health facility may:
(a) use reasonable force in exercising functions under this section or
any other provision of this Act applying this section, and
(b) restrain the person in any way that is reasonably necessary in the
circumstances.
(3) A person may be sedated, by a person authorised by law to administer
the sedative, for the purpose of being taken to or from a mental health
facility or other health facility under this Act if it is necessary to do so
to enable the person to be taken safely to or from the facility.
Note. The Poisons and Therapeutic Goods Act 1966, and the regulations under
that Act, regulate the persons who may prescribe and administer drugs
(including sedative drugs).
(4) A person authorised by this Act to take a person to or from a mental
health facility or other health facility may carry out a frisk search or an
ordinary search of the person, if the person reasonably suspects that the
other person is carrying anything:
(a) that would present a danger to the person or any other person, or
(b) that could be used to assist the other person to escape from the
person's custody.
(5) The person may seize and detain a thing found in a search if it is a thing
of a kind referred to in subsection (4) (a) or (b).
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Mental Health Bill 2007 Clause 82
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Mental health treatments Part 2
(6) In this section:
frisk search means:
(a) a search of a person conducted by quickly running the hands over
the person's outer clothing or by passing an electronic metal
detection device over or in close proximity to the person's outer
clothing, or
(b) an examination of anything worn or carried by the person that is
conveniently and voluntarily removed by the person, including
an examination conducted by passing an electronic metal
detection device over or in close proximity to that thing.
ordinary search means a search of a person or of articles in the
possession of the person that may include:
(a) requiring the person to remove only his or her overcoat, coat or
jacket or similar article of clothing and any gloves, shoes, socks
and hat, and
(b) an examination of those items.
Part 2 Mental health treatments
Division 1 Preliminary
82 Definitions
In this Part:
administer a treatment includes cause or knowingly permit treatment to
be administered.
involuntary patient includes a forensic patient and a person detained in
a mental health facility.
Division 2 General provisions about mental health treatment
83 Prohibited treatments (cf 1990 Act, s 197)
(1) A person must not administer to or perform on another person any of the
following:
(a) deep sleep therapy,
(b) insulin coma therapy,
(c) psychosurgery,
(d) any other operation or treatment prescribed by the regulations for
the purposes of this section.
Maximum penalty: 50 penalty units.
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(2) In this section:
psychosurgery means:
(a) the creation of 1 or more lesions, whether made on the same or
separate occasions, in the brain of a person by any surgical
technique or procedure, when it is done primarily for the purpose
of altering the thoughts, emotions or behaviour of the person, or
(b) the use for such a purpose of intracerebral electrodes to produce
such a lesion or lesions, whether on the same or separate
occasions, or
(c) the use on 1 or more occasions of intracerebral electrodes
primarily for the purpose of influencing or altering the thoughts,
emotions or behaviour of a person by stimulation through the
electrodes without the production of a lesion in the brain of the
person,
but does not include a technique or procedure carried out for the
treatment of a condition or an illness prescribed by the regulations for
the purposes of this definition.
84 Treatment may be given to patients
An authorised medical officer of a mental health facility may, subject to
this Act, give, or authorise the giving of, any treatment (including any
medication) the officer thinks fit to an involuntary patient or assessable
person detained in the facility in accordance with this Act.
85 Administration of excessive or inappropriate drugs (cf 1990 Act, s 198)
A medical practitioner must not, in relation to any mental illness or
mental condition or suspected mental illness or mental condition,
administer, or cause to be administered to a person a drug or drugs in a
dosage that, having regard to professional standards, is excessive or
inappropriate.
Maximum penalty: 50 penalty units.
86 Review of drug use in mental health facilities (cf 1990 Act, s 199)
(1) The medical superintendent of a mental health facility must establish an
internal review system to monitor and review the prescription and use
of drugs in the facility.
(2) The director of community treatment of a mental health facility must
establish an internal review system to monitor and review the
prescription and use of drugs under community treatment orders
implemented by the facility.
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(3) The system is to monitor the frequency of administration and dosages
of drugs, the intended and unintended effects of any drugs administered
and the appropriateness of their use.
Division 3 Electro convulsive therapy
87 Definitions
In this Division:
ECT administration inquiry--see section 96 (2).
ECT consent inquiry--see section 96 (1).
ECT determination--see section 96 (3).
ECT inquiry means an ECT administration inquiry or an ECT consent
inquiry.
88 Offences relating to administration of electro convulsive treatment (cf
1990 Act, ss 180-182)
(1) A person who is not a medical practitioner must not administer electro
convulsive therapy to another person.
(2) A medical practitioner must not administer electro convulsive therapy
to a person:
(a) otherwise than in accordance with this Division, or
(b) at a place other than a mental health facility or other place
approved by the Director-General.
(3) A medical practitioner must not administer electro convulsive therapy
to a person unless there are present during the administration of the
electro convulsive therapy not less than 2 medical practitioners (of
whom the medical practitioner administering the electro convulsive
therapy may be one):
(a) one of whom is experienced in the administration of electro
convulsive therapy, and
(b) another of whom is experienced in the administration of
anaesthesia.
Maximum penalty: 50 penalty units.
89 When electro convulsive therapy may be administered
Electro convulsive therapy may be administered only in the following
circumstances:
(a) to a person other than an involuntary patient, if the person meets
the requirements for informed consent to the treatment and
medical certification set out in this Division,
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(b) to an involuntary patient, after an ECT determination by the
Tribunal at an ECT inquiry.
Note. In this Part, involuntary patient includes a forensic patient and a
person detained in a mental health facility (see section 82).
90 Refusal of treatment by medical superintendent
The medical superintendent of a mental health facility may refuse to
allow electro convulsive therapy to be administered to a patient or
person detained in the facility, even though the Tribunal has made a
determination under this Division that enables the treatment to be given.
91 Informed consent requirements (cf 1990 Act, s 183)
(1) A person is taken to have given informed consent to the administration
of electro convulsive therapy if the person gives a free, voluntary and
written consent after this section is complied with.
(2) The following steps must be taken before consent is obtained:
(a) a fair explanation must be made to the person of the techniques
or procedures to be followed, including an identification and
explanation of any technique or procedure about which there is
not sufficient data to recommend it as recognised treatment or to
reliably predict the outcome of its performance,
(b) a full description must be given, without exaggeration or
concealment, to the person of any possible discomforts and risks
of the treatment (including possible loss of memory),
(c) a full description must be given to the person of any expected
benefits of the treatment,
(d) a full disclosure must be made, without exaggeration or
concealment, to the person of any appropriate alternative
treatments that would be advantageous to the person,
(e) an offer must be made to the person to answer any inquiries
concerning the procedures or any part of them,
(f) the person must be given notice that the person is free to refuse
or to withdraw consent and to discontinue the procedures or any
part of them at any time,
(g) a full disclosure must be made to the person of any financial
relationship between the person proposing the administration of
the treatment or the administering medical practitioner, or both,
and the facility in which it is proposed to administer the
treatment,
(h) the person must be given notice of their right to obtain legal and
medical advice and to be represented before giving consent,
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(i) any question relating to the techniques or procedures to be
followed that is asked by the person must have been answered
and the answers must appear to have been understood by the
person,
(j) a form setting out the steps in this subsection is to be given to the
person and an oral explanation of the matters dealt with in the
form is to be given to the person in a language with which the
person is familiar.
(3) The regulations are to prescribe forms setting out the steps to be taken
before obtaining informed consent to electro convulsive therapy.
92 Person impaired by medication incapable of giving informed consent
(cf 1990 Act, s 184)
A person is presumed to be incapable of giving informed consent to the
administration of electro convulsive therapy if, when consent is sought,
the person is affected by medication that impairs the person's ability to
give that consent.
93 When electro convulsive therapy may be administered to persons other
than involuntary patients (cf 1990 Act, s 185)
(1) Electro convulsive therapy may be administered to a person (other than
an involuntary patient) if:
(a) the person is capable of giving informed consent to the treatment
and has given informed consent to the treatment, including a
written consent in the form prescribed by the regulations, and
(b) a certificate is given under this section by at least 2 medical
practitioners, at least one of whom is a psychiatrist.
(2) A certificate under this section is a certificate in writing that, after
considering the clinical condition and history of treatment of, and any
appropriate alternative treatments for, the person, the medical
practitioners are of the opinion that electro convulsive therapy is:
(a) a reasonable and proper treatment to be administered to the
person, and
(b) necessary or desirable for the safety or welfare of the person.
(3) An authorised medical officer who is unsure whether a person is
capable of giving informed consent may apply to the Tribunal for an
ECT consent inquiry to determine whether the person is capable of
giving informed consent and has given that consent.
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94 When electro convulsive therapy may be administered to involuntary
patients
(1) Electro convulsive therapy may be administered to an involuntary
patient in accordance with an ECT determination made by the Tribunal
at an ECT administration inquiry.
(2) An authorised medical officer may apply to the Tribunal for an ECT
administration inquiry about an involuntary patient if a certificate is
given under this section by at least 2 medical practitioners, at least one
of whom is a psychiatrist.
(3) A certificate under this section is a certificate in writing that, after
considering the clinical condition and history of treatment of, and any
appropriate alternative treatments for, the patient, the medical
practitioners are of the opinion that electro convulsive therapy is:
(a) a reasonable and proper treatment to be administered to the
patient, and
(b) necessary or desirable for the safety or welfare of the patient.
95 Tribunal to hold inquiries promptly
The Tribunal must hold an ECT inquiry about a person as soon as
practicable after an application is made to it under this Division.
96 Purpose and findings of ECT inquiries
(1) ECT consent inquiries about voluntary patients
The Tribunal is, on an ECT consent inquiry, to determine whether or not
the person is capable of giving informed consent to the administration
of electro convulsive therapy and has given that consent.
(2) ECT administration inquiries about involuntary patients
The Tribunal is, on an ECT administration inquiry, to determine
whether or not an ECT determination should be made in relation to the
patient about whom the inquiry is held.
(3) ECT determinations that enable treatment of involuntary patients
An ECT determination is a determination:
(a) that the patient is capable of giving informed consent to the
electro convulsive therapy and has given that consent, or
(b) that:
(i) the patient is incapable of giving informed consent or is
capable of giving informed consent to the electro
convulsive therapy but has refused, or has neither
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consented nor refused, to have the treatment administered,
and
(ii) after considering the medical opinions and other
information placed before it, the Tribunal is satisfied the
electro convulsive therapy is a reasonable and proper
treatment and is necessary and desirable for the safety or
welfare of the patient.
(4) Maximum number of treatments for involuntary patients
In any ECT determination, the Tribunal must also specify the number
of treatments that are approved (not exceeding 12).
(5) Increase in maximum number of treatments for involuntary patients
Despite subsection (4), the Tribunal may specify more than 12
treatments if the Tribunal is satisfied that, having regard to the special
circumstances of the case (including the success of any previous electro
convulsive therapy), the higher number of treatments is justified.
(6) Procedures applying to ECT inquiries
For the purposes of an ECT inquiry, the Tribunal is to do the following:
(a) in the case of an ECT administration inquiry, find out from the
patient about whom the inquiry is being held whether or not the
patient was aware of the authorised medical officer's obligation
to give notice of the inquiry and whether notice of the inquiry was
given in accordance with this Act,
(b) inform the patient or person about whom the inquiry is being held
of the nature and possible results of the inquiry, if the patient or
person has not or appears not to have been informed of them,
(c) inquire about the administration of any medication to the patient
or person about whom the inquiry is being held and take account
of its effect on the patient's or person's ability to communicate,
(d) consider the views of the patient or person about whom the
inquiry is being held about the treatment,
(e) consider any information before it.
(7) Duration of ECT determination
An ECT determination has effect for 6 months from the date the
determination is made unless a shorter period is specified in the
determination.
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97 Electro convulsive therapy register
(1) A register containing information relating to the administration of
electro convulsive therapy is to be kept in relation to each mental health
facility or other place at which the treatment is administered.
(2) The medical superintendent of the facility or the person approved by the
Director-General for any other place is to keep the register or cause it to
be kept.
(3) The register is to be in the form prescribed by the regulations.
(4) Particulars of a proposed administration of electro convulsive therapy
are to be entered in the register before the therapy is administered, and
any differences in the particulars of treatment actually administered are
to be subsequently noted and explained in the register.
(5) The register may be inspected at any time by the Tribunal, the Principal
official visitor, an official visitor or the Director-General.
Part 3 Other medical treatments
98 Definitions
In this Part:
special medical treatment means:
(a) any treatment, procedure, operation or examination that is
intended, or is reasonably likely, to have the effect of rendering
permanently infertile the person on whom it is carried out, or
(b) any other kind of treatment declared by the regulations to be
special medical treatment for the purposes of this Part.
surgical operation means a surgical procedure, a series of related
surgical operations or surgical procedures, and the administration of an
anaesthetic for the purpose of medical investigation.
99 Emergency surgery for involuntary patients
(1) An authorised medical officer or the Director-General may consent to
the performance of a surgical operation on an involuntary patient (other
than a forensic patient not suffering from a mental illness) if of the
opinion that:
(a) the patient is incapable of giving consent to the operation or is
capable of giving consent but refuses to give that consent or
neither gives nor refuses to give that consent, and
(b) it is necessary, as a matter of urgency, to perform a surgical
operation on the patient in order to save the patient's life or to
prevent serious damage to the patient's health or to prevent the
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patient from suffering or continuing to suffer significant pain or
distress.
(2) An authorised medical officer or the Director-General may consent to
the performance of a surgical operation on a forensic patient not
suffering from a mental illness if of the opinion that:
(a) the patient is incapable of giving consent to the operation, and
(b) it is necessary, as a matter of urgency, to perform a surgical
operation on the patient in order to save the patient's life or to
prevent serious damage to the patient's health or to prevent the
patient from suffering or continuing to suffer significant pain or
distress.
(3) The consent is to be in writing and signed by the person giving the
consent.
(4) The authorised medical officer of the mental health facility in which the
involuntary patient is detained must, as soon as practicable after the
performance of a surgical operation consented to under this section,
notify the Tribunal of the operation.
100 Director-General may consent to surgery
(1) An authorised medical officer may apply to the Director-General for
consent to the performance of a surgical operation on an involuntary
patient.
(2) An application is to be made to the Director-General if the primary carer
of the patient agrees, in writing, to the performance of the surgical
operation.
(3) On an application, the Director-General may consent to the
performance of a surgical operation on an involuntary patient (other
than a forensic patient not suffering from a mental illness) if of the
opinion that:
(a) the patient is incapable of giving consent to the operation or is
capable of giving consent but refuses to give that consent or
neither gives nor refuses to give that consent, and
(b) it is desirable, having regard to the interests of the patient, to
perform the surgical operation on the patient.
(4) On an application, the Director-General may consent to the
performance of a surgical operation on a voluntary patient or a forensic
patient not suffering from a mental illness if the Director-General is of
the opinion that:
(a) the patient is incapable of giving consent to the operation, and
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(b) it is desirable, having regard to the interests of the patient, to
perform the surgical operation on the patient.
(5) An application must be made not earlier than 14 days after notice of the
proposed application is given under section 78, but may be made sooner
if:
(a) the authorised medical officer is of the opinion that the urgency
of the circumstances requires an earlier determination of the
matter, or
(b) the person notified indicates that the person does not object.
(6) The consent is to be in writing and signed by the person giving the
consent.
101 Tribunal may consent to surgery
(1) An authorised medical officer of a mental health facility may apply to
the Tribunal for consent to the performance of a surgical operation on
an involuntary patient detained in the facility.
(2) An application is to be made to the Tribunal if the primary carer of the
person does not agree, in writing, to the performance of the surgical
operation.
(3) On an application, the Tribunal may consent to the performance of a
surgical operation on an involuntary patient (other than a forensic
patient not suffering from a mental illness) if the Tribunal is of the
opinion that:
(a) the patient is incapable of giving consent to the operation or is
capable of giving consent but refuses to give that consent or
neither gives nor refuses to give that consent, and
(b) it is desirable, having regard to the interests of the patient, to
perform the surgical operation on the patient.
(4) On an application, the Tribunal may consent to the performance of a
surgical operation on a voluntary patient or a forensic patient not
suffering from a mental illness if the Tribunal is of the opinion that:
(a) the patient is incapable of giving consent to the operation, and
(b) it is desirable, having regard to the interests of the patient, to
perform the surgical operation on the patient.
(5) An application for consent must be made not earlier than 14 days after
notice of the proposed application is given under section 78, but may be
made sooner if:
(a) the authorised medical officer is of the opinion that the urgency
of the circumstances requires an earlier determination of the
matter, or
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(b) the person notified indicates that the person does not object.
102 Special medical treatment
(1) A person must not carry out special medical treatment on a patient
otherwise than in accordance with this Part, unless the person is a
medical practitioner and:
(a) is of the opinion that it is necessary, as a matter of urgency, to
carry out special medical treatment on the patient in order to save
the patient's life or to prevent serious damage to the patient's
health, or
(b) consent to the treatment being carried out is given by the Tribunal
in accordance with this Part.
Maximum penalty on indictment: imprisonment for 7 years.
(2) This section does not apply to a patient who is a child to whom
section 175 of the Children and Young Persons (Care and Protection)
Act 1998 applies.
Note. This provision provides an offence in relation to carrying out special
medical treatment on children.
103 Tribunal may consent to special medical treatment
(1) An authorised medical officer of a mental health facility may apply to
the Tribunal for consent to the carrying out of special medical treatment
on an involuntary patient detained in the facility.
(2) On an application, the Tribunal may consent to the carrying out of
special medical treatment on a patient (other than prescribed special
medical treatment) if the Tribunal is satisfied that it is necessary to
prevent serious damage to the health of the patient.
(3) The Tribunal may consent to the carrying out of prescribed special
medical treatment if the Tribunal is satisfied that:
(a) the treatment is the only or most appropriate way of treating the
patient, and is manifestly in the best interests of the patient, and
(b) in so far as the National Health and Medical Research Council
has prescribed guidelines that are relevant to the carrying out of
the treatment--those guidelines have been or will be complied
with as regards the patient.
(4) The Tribunal must not consent to the carrying out of special medical
treatment on a patient who is under the age of 16 years.
(5) An application for consent must be made not earlier than 14 days after
notice of the proposed application is given under section 78, but may be
made sooner if the authorised medical officer is of the opinion that the
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urgency of the circumstances requires an earlier determination of the
matter or the person notified agrees.
(6) In this section:
prescribed special medical treatment means special medical treatment
referred to in paragraph (b) of the definition of special medical
treatment in section 98.
104 Effect of consents
A consent given under this Part has the same effect as if it were given
by the patient and the patient had the capacity to consent or, in the case
of a child under the age of 14 years or a person under guardianship, by
the person having capacity to consent on the child's or person's behalf.
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Part 1 Administrative objectives and functions
105 Objectives of New South Wales public health system (cf 1990 Act, s 6)
The objectives of the New South Wales public health system under this
Act in relation to mental health services are to establish, develop,
promote, assist and encourage mental health services that:
(a) ensure that provision is made for the care, treatment, control and
rehabilitation of persons who are mentally ill or mentally
disordered, and
(b) promote the establishment of community mental health services
for the purpose of enabling the treatment in the community
wherever possible of persons who are mentally ill or suffering
from the effects of mental illness or who are mentally disordered,
and
(c) develop, as far as practicable, standards and conditions of care
and treatment for persons who are mentally ill or mentally
disordered that are in all possible respects at least as beneficial as
those provided for persons suffering from other forms of illness,
and
(d) take into account the various religious, cultural and language
needs of those persons, and
(e) are comprehensive and accessible, and
(f) permit appropriate intervention at an early stage of mental illness,
and
(g) assist patients to live in the community through the provision of
direct support and provide for liaison with carers and providers of
community services.
106 Functions of Director-General (cf 1990 Act, s 7)
The Director-General has the following functions under this Act:
(a) to promote research into mental illness,
(b) to assist in the training and education of persons responsible for
the care and treatment of persons who are mentally ill or mentally
disordered,
(c) to make recommendations and reports to the Minister about
matters affecting the accommodation, maintenance, care,
treatment, control and welfare of persons who are mentally ill or
mentally disordered,
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(d) to make recommendations to the Minister about this Act or the
regulations,
(e) to promote informed public opinion on matters relating to public
health by publishing reports and information concerning mental
health,
(f) to promote public understanding of involvement in measures for
the prevention, treatment and care of mental illness and the care,
treatment and control of persons who are mentally ill or mentally
disordered,
(g) to assist in, and promote, co-operation between different agencies
involved in the provision of services for people who are mentally
ill or mentally disordered and their carers,
(h) any other functions conferred or imposed on the
Director-General by or under this or any other Act.
107 Delegation
(1) The Director-General may delegate the exercise of any function of the
Director-General under this Act (other than this power of delegation) to:
(a) any member of staff of the Department of Health, or
(b) any member of staff of the NSW Health Service, or
(c) any person, or any class of persons, authorised for the purposes
of this section by the regulations.
(2) A delegate may sub-delegate to a person referred to in subsection (1) (a)
or (b) if the delegate is authorised in writing to do so by the
Director-General.
108 Annual report (cf 1990 Act, s 301)
(1) The Director-General must, as soon as practicable after 30 June in each
year, cause to be prepared and forwarded to the Minister a report as to
the matters relating to mental health services that are prescribed by the
regulations for the 12 months preceding that date.
(2) The Minister is required to lay the report, or cause it to be laid, before
each House of Parliament as soon as practicable after the receipt by the
Minister of the report.
(3) A report made under the Annual Reports (Departments) Act 1985 in
respect of the Department of Health may include any report required to
be made under this section.
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Division 1 Declared mental health facilities
109 Establishment of declared mental health facilities (cf 1990 Act, s 208)
(1) The Director-General, by order published in the Gazette:
(a) may declare any premises to which this section applies and that
are specified or described in the order to be a declared mental
health facility, and
(b) may, in the same or another order so published, name the
premises so specified or described, and
(c) may, in the same or another order so published, limit the
provisions of this Act or the purposes under this Act for which the
facility is a declared mental health facility.
(2) Without limiting subsection (1), an order may do any of the following:
(a) designate a declared mental health facility as a facility of a
specified class,
(b) designate the purposes for which a mental health facility of a
specified class may be used,
(c) impose restrictions on the use of a mental health facility for
specified purposes,
(d) impose any other conditions in relation to the operation of the
facility as a mental health facility.
(3) This section applies to the following premises:
(a) premises that belong to or are under the control of the Crown or
a person acting on behalf of the Crown,
(b) premises that are under the control of a public health organisation
within the meaning of the Health Services Act 1997,
(c) premises that the owner or person who has control of the
premises has agreed, by an instrument in writing given to the
Director-General, to being premises to which this section applies.
110 Declared mental health facilities that are private mental health facilities
A declared mental health facility that is also a private mental health
facility ceases to be a declared mental health facility if the licence for
the facility is cancelled under Division 2.
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111 Appointment of medical superintendents (cf 1990 Act, s 209)
(1) The Director-General must, by instrument in writing, appoint a medical
practitioner as medical superintendent of a declared mental health
facility (other than a private mental health facility).
(2) The Director-General may (by the same or different instruments)
appoint a medical practitioner as the medical superintendent of more
than one declared mental health facility.
112 Appointment of deputy medical superintendents (cf 1990 Act, s 210)
(1) The Director-General may, by instrument in writing, appoint a medical
practitioner as deputy medical superintendent of a declared mental
health facility.
(2) The deputy medical superintendent of a declared mental health facility
has the functions of the medical superintendent of the facility during the
absence, for any reason, of the medical superintendent or during a
vacancy in the office of medical superintendent.
(3) The Director-General may (by the same or different instruments)
appoint a medical practitioner as the deputy medical superintendent of
more than one declared mental health facility.
113 Directors and deputy directors of community treatment (cf 1990 Act, ss
115, 150)
(1) The Director-General must appoint the holder of a specified office as
the director of community treatment of a mental health facility that
implements treatment plans under community treatment orders and may
appoint the holder of a specified office as the deputy director of
community treatment of the facility.
(2) An office may not be specified unless, in the opinion of the
Director-General, it qualifies the holder to exercise the functions
conferred or imposed on a director or deputy director by or under this
Act.
(3) A person appointed as a director of community treatment must be a
health professional who is appropriately qualified for the position by
education, training and experience.
(4) The director of community treatment of a mental health facility may
delegate a function conferred or imposed by this Act on the director
(other than this power of delegation) to the deputy director.
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114 Psychiatric case managers (cf 1990 Act, s 116)
(1) The director of community treatment of a declared mental health facility
may appoint a person employed at the facility as the psychiatric case
manager of an affected person under a community treatment order.
(2) A person may not be appointed as a psychiatric case manager unless, in
the opinion of the director, the person is qualified to supervise the
treatment, and monitor the progress, of the affected person under a
community treatment order.
(3) The same person may be the director or deputy director of community
treatment of a declared mental health facility and the psychiatric case
manager of an affected person.
Division 2 Private mental health facilities
115 Application for licence (cf 1990 Act, s 211)
(1) A person may apply to the Director-General for a licence to keep
premises as a private mental health facility for the admission, care and
treatment of patients.
(2) An application must be:
(a) in a form approved by the Director-General, and
(b) accompanied by a plan of the premises in respect of which the
licence is sought and the prescribed fee.
116 Grant or refusal of licence (cf 1990 Act, s 212)
(1) The Director-General may grant an application for a licence under this
Division or may refuse to grant the application.
(2) If the Director-General grants the application, the Director-General:
(a) must specify the maximum number of patients who may be kept
or treated at the private mental health facility, and
(b) must specify any other terms and conditions to which the licence
is subject, as the Director-General thinks fit, and
(c) must issue the applicant with a licence in a form approved by the
Director-General.
117 Duration of licence (cf 1990 Act, s 213)
A licence remains in force until it is cancelled in accordance with this
Division.
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118 Annual statement and licence fee (cf 1990 Act, s 214)
A licensee must, on or before 31 December in each year:
(a) forward to the Director-General a statement in a form approved
by the Director-General relating to the conduct of the premises to
which the licence relates and the admission of patients to those
premises and the care and treatment of patients on those
premises, and
(b) pay to the Director-General the prescribed annual licence fee.
119 Duplicate licence (cf 1990 Act, s 215)
If the Director-General is satisfied that a licence has been lost, destroyed
or damaged, the Director-General may, on payment of the prescribed
fee, issue a duplicate licence to the licensee.
120 Cancellation of licences--generally (cf 1990 Act, s 216)
The Director-General may cancel a licence:
(a) if the annual licence fee payable in respect of the licence has not
been paid by the due date, or
(b) if the licensee requests the Director-General, in writing, to cancel
the licence, or
(c) if the premises to which the licence relates have ceased to be kept
as a mental health facility for the admission, care and treatment
of patients, or
(d) if the premises to which the licence relates cease to be the subject
of a licence under the Private Hospitals and Day Procedure
Centres Act 1988.
121 Cancellation of licences--failure to show cause (cf 1990 Act, s 217)
(1) The Director-General may, by notice in writing served on the holder of
a licence, require the holder to show cause, by a date and time specified
in the notice (being a date not less than 1 month after the date of service
of the notice), why the licence should not be cancelled.
(2) The Director-General may cancel the licence if, by the date and time
referred to in the notice, the holder of the licence has not shown
sufficient cause why the licence should not be cancelled.
122 Variation of licence (cf 1990 Act, s 218)
(1) The holder of a licence may, at any time, apply to the Director-General
for the variation of any term or condition to which the licence is subject.
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(2) The Director-General may, on an application being made:
(a) vary any term or condition to which a licence is subject, or
(b) refuse to grant the application.
123 Provision of medical services in private mental health facilities (cf 1990
Act, s 219)
The holder of a licence must make such arrangements as may be
approved by the Director-General for the provision of medical services
to patients in the private mental health facility.
124 Medical superintendents (cf 1990 Act, ss 220, 221)
(1) The holder of a licence must appoint a medical practitioner approved by
the Director-General as the medical superintendent of the private
mental health facility.
(2) The medical superintendent of a private mental health facility must
cause to be kept such records and furnish to the Director-General such
particulars as are approved by the Minister in respect of the admission,
treatment, discharge, removal, absence with or without leave or death of
each patient admitted to the facility.
125 Deputy medical superintendents (cf 1990 Act, ss 222, 223)
(1) The holder of a licence may appoint a medical practitioner as the deputy
medical superintendent of the private mental health facility.
(2) The appointment of the medical practitioner must be approved by the
Director-General before it takes effect.
(3) The deputy medical superintendent of a private mental health facility
has the functions of the medical superintendent of the facility during the
absence, for any reason, of the medical superintendent or during a
vacancy in the office of medical superintendent.
126 Unlicensed private mental health facilities (cf 1990 Act, s 224)
A person keeping premises is guilty of an offence against this Act if:
(a) the premises were the subject of a licence that has ceased to be in
force, and
(b) at any time after 2 months after the licence ceases to be in force,
there is in or on the premises a person who was a patient
immediately before the licence ceased to be in force and who has
not ceased to be a patient.
Maximum penalty: 50 penalty units.
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127 Certain private hospitals to be licensed (cf 1990 Act, s 225)
A person must not conduct a private hospital within the meaning of the
Private Hospitals and Day Procedure Centres Act 1988 at which a
person is being treated primarily for a mental illness, unless the person
who conducts the hospital is the holder of a licence granted under this
Division.
Maximum penalty: 50 penalty units.
Part 3 Official visitors and accredited persons
128 Principal official visitor (cf 1990 Act, ss 226, 227)
(1) The Minister may, by instrument in writing, appoint a person to be the
Principal official visitor.
(2) The Principal official visitor has the following functions:
(a) to advise and assist official visitors in the exercise of the
functions conferred or imposed on them by or under this Act,
(b) to oversee the official visitor program conducted under this Act,
(c) to report to the Minister, as directed by the Minister, about the
exercise of the functions of the Principal official visitor and
official visitors,
(d) to refer matters raising any significant public mental health issues
or patient safety or care or treatment issues to the Minister or any
other appropriate person or body,
(e) to act as an advocate to the Minister for consumers of mental
health care to promote the proper resolution of issues arising in
the mental health system,
(f) any other function conferred on the Principal official visitor by or
under this or any other Act.
129 Official visitors (cf 1990 Act, s 228)
(1) The Minister must, by instrument in writing, appoint official visitors.
(2) A person may be appointed as an official visitor if the person has any of
the following qualifications:
(a) the person is a medical practitioner,
(b) the person is a psychologist registered under the Psychologists
Act 2001,
(c) the person has any other qualifications prescribed by the
regulations,
(d) the person is otherwise a suitably qualified or interested person.
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(3) An official visitor has the following functions:
(a) to refer matters raising any significant public mental health issues
or patient safety or care or treatment issues to the Principal
official visitor or any other appropriate person or body,
(b) to act as an advocate for patients to promote the proper resolution
of issues arising in the mental health system, including issues
raised by the primary carer of a patient or person detained under
this Act,
(c) to inspect mental health facilities as directed by the Principal
official visitor and in accordance with this Part,
(d) any other function conferred on official visitors by or under this
or any other Act.
130 General provisions relating to the Principal official visitor and official
visitors (cf 1990 Act, s 229)
Schedule 4 has effect with respect to the Principal official visitor and
official visitors.
131 Inspections of mental health facilities by official visitors (cf 1990 Act,
s 230)
(1) The Principal official visitor must ensure that 2 or more official visitors
visit each mental health facility in accordance with the regulations.
(2) For the purposes of any such visit, at least one of the official visitors is
to be a person referred to in section 129 (2) (a), (b) or (c) and at least one
other of the official visitors is to be a person referred to in section 129
(2) (d).
(3) On a visit to a mental health facility, the official visitors must:
(a) so far as practicable, inspect every part of the facility at least
once, and
(b) so far as practicable, make any necessary inquiries about the care,
treatment and control of voluntary patients and the patients or
persons detained in the facility or who are subject to community
treatment orders and being treated by the facility, and
(c) examine and sign the registers, books, records and other
documents produced to them in accordance with this Part, and
(d) enter the fact of their visit in the official visitors book at the
facility, together with any observations they think it appropriate
to make.
(4) The official visitors must report to the Principal official visitor about
each visit in accordance with any arrangements made by the Principal
official visitor.
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(5) A visit may be made with or without previous notice and at any time of
the day or night, and be of such length, as the official visitors think
appropriate.
(6) A visit may be made at the request of the primary carer of a patient or
person treated at or by the mental health facility.
132 Obligations to facilitate exercise of functions by official visitors (cf 1990
Act, s 231)
(1) The medical superintendent of a declared mental health facility or the
administrator of a private mental health facility must do the following
for the purposes of any visit by official visitors:
(a) allow the official visitors to have access to and to inspect every
part of the facility,
(b) permit the official visitors to see and to interview each patient or
person detained in the facility or each affected person under a
community treatment order being treated by the facility,
(c) give full and true answers to the best of their knowledge to all
questions that the official visitors ask in relation to the facility,
the patients and other persons or affected persons,
(d) produce to the official visitors any registers, books, records,
orders, certificates, returns and other documents relating to the
admission, care, treatment and control of the patients and other
persons and the discharge of persons required by the official
visitors.
(2) The administrator of a private mental health facility must, at the end of
each month, report in writing to the medical superintendent as to the
functions exercised under this section by the administrator during that
month.
133 Reports to Minister (cf 1990 Act, s 233)
Nothing in this Part prevents an official visitor from reporting to the
Minister with respect to any matter arising from or relating to the
exercise by the official visitor of the official visitor's functions.
134 Request by patient or other person to see official visitor (cf 1990 Act,
s 234)
(1) A patient or person detained in a mental health facility or an affected
person under a community treatment order who is being treated by a
mental health facility, or the primary carer of any such person, may
notify the medical superintendent or director of community treatment of
the facility, orally or in writing, that the patient or person or carer desires
to see an official visitor.
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(2) The medical superintendent or director must inform an official visitor
of the patient's or person's or primary carer's desire to see an official
visitor not later than 2 days after receiving the notification.
135 Official visitors not personally liable (cf 1990 Act, s 234A)
A matter or thing done or omitted by an official visitor does not, if the
matter or thing was done or omitted in good faith for the purpose of
executing this Act or the regulations, subject the official visitor
personally to any action, liability, claim or demand.
136 Accredited persons (cf 1990 Act, s 287A)
(1) The Director-General may appoint a person as an accredited person for
the purposes of this Act.
(2) The Director-General may appoint the holder of an office as an
accredited person and may impose conditions on the exercise by a
person or the holder of an office of the functions of an accredited
person.
Part 4 Inspection powers
137 Inspection of mental health facilities (cf 1990 Act, s 237)
(1) The Director-General may inquire into the administration, management
and services of a mental health facility and for that purpose may cause
any mental health facility to be visited and inspected from time to time
by officers authorised by the Director-General.
(2) A visit or inspection may be carried out by an authorised officer
appointed under section 124 of the Health Services Act 1997, if the
officer's certificate of authority is expressed to extend to such visits or
inspections.
(3) On an inspection, an authorised officer:
(a) may, at any time, make any inspections, investigations and
inquiries with respect to the care, treatment or control of patients
or persons detained in a facility or with respect to the
management of a facility the authorised officer considers
necessary, and
(b) must make any such inspections, investigations and inquiries that
are directed by the Director-General.
(4) An inspection may be made with or without previous notice and at any
time of the day or night, and be of such length, as the authorised officer
thinks appropriate.
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138 Powers of authorised officer to require information, evidence,
production of records (cf 1990 Act, s 238)
(1) An authorised officer inspecting a mental health facility under this Part
may, by notice in writing, require a person to do any one or more of the
following:
(a) to furnish to the authorised officer the information required by
the authorised officer concerning any of the matters with respect
to which an authorised officer is, by or under this Part, authorised
to make inspections, investigations and inquiries,
(b) to attend and give evidence before the authorised officer
concerning any such matters,
(c) to produce all books, documents or other records in the person's
custody or under the person's control concerning any such
matters.
(2) An authorised officer may require evidence to be given on oath, and
either orally or in writing, and for that purpose the authorised officer
may administer an oath.
(3) A person must not, without reasonable excuse, refuse or fail to comply
with a requirement made under this section.
Maximum penalty: 50 penalty units.
139 Protection from incrimination
(1) A person is not excused from a requirement under this Part to make a
statement, to give or furnish information, to answer a question or to
produce a document on the ground that the statement, information,
answer or document might incriminate the person or make the person
liable to a penalty.
(2) However, any statement made or any information or answer given or
furnished by a natural person in compliance with a requirement under
this Part is not admissible in evidence against the person in criminal
proceedings (except proceedings for an offence under this Part) if:
(a) the person objected at the time to doing so on the ground that it
might incriminate the person, or
(b) the person was not warned on that occasion that the person may
object to making the statement or giving or furnishing the
information or answer on the ground that it might incriminate the
person.
(3) Any document produced by a person in compliance with a requirement
under this Part is not inadmissible in evidence against the person in
criminal proceedings on the ground that the document might
incriminate the person.
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(4) Further information obtained as a result of a document produced, a
statement made or information or answer given or furnished in
compliance with a requirement under this Part is not inadmissible on the
ground:
(a) that the document, statement, information or answer had to be
produced, made, given or furnished, or
(b) that the document, statement, information or answer might
incriminate the person.
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Chapter 6 Mental Health Review Tribunal
Part 1 The Tribunal
140 Constitution of the Tribunal (cf 1990 Act, s 252)
(1) There is constituted by this Act a Mental Health Review Tribunal.
(2) The Tribunal has the functions conferred or imposed on it by or under
this Act or any other law.
(3) Schedule 5 has effect with respect to the Tribunal.
141 Membership of Tribunal
(1) The Tribunal consists of the following members appointed by the
Governor:
(a) the President of the Tribunal who is to be appointed as a full-time
member,
(b) 1 or more Deputy Presidents of the Tribunal who may be
appointed as full-time or part-time members,
(c) other members (if any) who may be appointed as full-time or
part-time members.
(2) The members (including the President and any Deputy President) are to
be appointed from the following classes of persons:
(a) Australian legal practitioners,
(b) psychiatrists,
(c) persons having, in the opinion of the Governor, other suitable
qualifications or experience, including at least 1 person selected
from a group of persons who are nominated by consumer
organisations.
(3) The members are to include 1 or more women and 1 or more persons of
ethnic background and a different person is to be appointed to satisfy
each of those qualifications, even though a person so appointed may
possess both of those qualifications.
(4) If, at the time at which an appointment is required to be made of a
person selected from a group of persons who are nominated by
consumer organisations no such group has been nominated, the
Governor may appoint as a member instead a person who, in the opinion
of the Governor, has suitable qualifications or experience.
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142 Registrar and other officers of the Tribunal (cf 1990 Act, s 256)
(1) A Registrar and such staff as may be necessary to enable the Tribunal
to exercise its functions may be employed under Chapter 1A of the
Public Sector Employment and Management Act 2002 in the
Government Service.
(2) The Registrar has the functions conferred or imposed on the Registrar
by or under this Act or any other law or by the Tribunal in the exercise
of its functions.
143 Authentication of documents (cf 1990 Act, ss 254, 257)
(1) The Tribunal is to have a seal of which judicial notice is to be taken.
(2) Every document requiring authentication by the Tribunal is sufficiently
authenticated without the seal of the Tribunal if it is signed by the
President or a Deputy President.
144 Judicial notice of certain signatures (cf 1990 Act, s 258)
Judicial notice is to be taken of the signature of the President, a Deputy
President or the Registrar of the Tribunal when appearing on a
document issued by the Tribunal.
145 Certain proceedings prohibited (cf 1990 Act, s 259)
No proceedings lie against the Tribunal, a member of the Tribunal or a
member of staff of the Tribunal for or on account of any act, matter or
thing done or ordered to be done or omitted or suffered to be done by
the Tribunal, member or member of staff, and purporting to be done,
ordered, omitted or suffered for the purposes of carrying out the
provisions of this or any other Act, if the Tribunal, member or member
of staff has acted in good faith.
146 Application of Defamation Act 2005 to proceedings of Tribunal (cf 1990
Act, s 260)
Section 27 of the Defamation Act 2005 makes provision for a defence
of absolute privilege in respect of publications of defamatory matter in
the course of proceedings of the Tribunal.
Note. Section 27 (2) (b) of the Defamation Act 2005 provides that the defence
of absolute privilege is available in respect of defamatory matter that is
published in the course of proceedings of an Australian court or Australian
tribunal, including (but not limited to) the following:
(a) the publication of matter in any document filed or lodged with, or
otherwise submitted to, the court or tribunal (including any originating
process),
(b) the publication of matter while giving evidence before the court or
tribunal,
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(c) the publication of matter in any judgment, order or other determination of
the court or tribunal.
The term Australian tribunal is defined in section 4 of that Act to mean any
tribunal (other than a court) established by or under a law of an Australian
jurisdiction that has the power to take evidence from witnesses before it on oath
or affirmation (including a Royal Commission or other special commission of
inquiry).
The Mental Health Review Tribunal is an Australian tribunal for the purposes of
the Defamation Act 2005 because it is a tribunal that has the power under
section 151 (5) of this Act to take evidence from witnesses under oath.
147 Annual report (cf 1990 Act, s 261)
(1) As soon as practicable after 1 September, but on or before 1 December,
in each year, the President must prepare and forward to the Minister a
report as to the exercise by the Tribunal of its functions.
(2) Without limiting subsection (1), the report is to include the following
matters relating to persons taken to mental health facilities under Part 2
of Chapter 3:
(a) the number of persons so taken and the provisions of this Act
under which they were so taken,
(b) the number of persons detained as mentally ill persons or
mentally disordered persons,
(c) the number of persons in respect of whom a mental health inquiry
was held,
(d) the number of persons detained as involuntary patients for 3
months or less and the number of persons otherwise detained as
involuntary patients.
(3) The report is also to include any matters the Minister may direct or that
are prescribed by the regulations.
(4) The Minister must lay the report, or cause it to be laid, before each
House of Parliament as soon as practicable after receiving the report.
(5) A report made under the Annual Reports (Departments) Act 1985 in
respect of the Department of Health may include any report required to
be made under this section.
148 Delegation (cf 1990 Act, s 263)
(1) The President may delegate to any of the following persons any of the
functions of the President, other than this power of delegation:
(a) a member of the Tribunal,
(b) the Registrar of the Tribunal,
(c) a person of a class prescribed by the regulations.
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(2) A delegate may sub-delegate to a person referred to in subsection (1)
(a), (b) or (c) any function delegated by the President if the delegate is
authorised in writing to do so by the President.
Part 2 Procedures of the Tribunal
149 Application of Part
This Part, and any regulations made under this Part, apply to any
proceedings of the Tribunal under this or any other Act.
150 Composition of the Tribunal (cf 1990 Act, ss 264, 265)
(1) The Tribunal is to be constituted by one or more members nominated by
the President for the exercise of its functions.
(2) For the purpose of exercising any of its functions (other than in relation
to forensic patients), the Tribunal must consist of at least 1 member who
is to be the President, a Deputy President or a member who is an
Australian legal practitioner.
(3) The President may nominate other members of the following kinds:
(a) a member who is a psychiatrist,
(b) a member who (not being an Australian legal practitioner) has
other suitable qualifications or experience.
(4) For the purpose of exercising its functions in relation to forensic
patients, the Tribunal must consist of the President or a Deputy
President, a member who is a psychiatrist and a member who (not being
an Australian legal practitioner) has other suitable qualifications or
experience.
(5) The regulations may make provision for or with respect to the members
who are to constitute the Tribunal for the exercise of any of its
functions.
151 Procedure at meetings of Tribunal to be informal (cf 1990 Act, s 267)
(1) Meetings of the Tribunal are to be conducted with as little formality and
technicality, and with as much expedition, as the requirements of this
Act, the Mental Health (Criminal Procedure) Act 1990, the regulations
and as the proper consideration of the matters before the Tribunal
permit.
(2) In determining any matter relating to a forensic patient or other patient
or a person detained in a mental health facility, the Tribunal is not bound
by the rules of evidence but may inform itself of any matter in such
manner as it thinks appropriate and as the proper consideration of the
matter before the Tribunal permits.
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(3) The proceedings of the Tribunal are to be open to the public.
(4) However, if the Tribunal is satisfied that it is desirable to do so for the
welfare of a person who has a matter before the Tribunal or for any other
reason, it may (of its own motion or on the application of the person or
another person appearing at the proceedings) make any one or more of
the following orders:
(a) an order that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting the publication or broadcasting
of any report of proceedings before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence
given before the Tribunal, whether in public or in private, or of
matters contained in documents lodged with the Tribunal or
received in evidence before the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of
the parties to the proceedings of evidence given before the
Tribunal, or of the contents of a document lodged with the
Tribunal or received in evidence by the Tribunal, in relation to
the proceedings.
Note. Section 162 prohibits the publication or broadcasting of the name of a
person involved in Tribunal proceedings or other material that may identify any
such person, except with the consent of the Tribunal.
(5) The President or a Deputy President or the chairperson of a meeting of
the Tribunal may administer an oath to any person giving evidence
before the Tribunal.
(6) The President or a Deputy President of the Tribunal has, in the exercise
of his or her functions as a member, the same protections and immunity
as a Judge of the Supreme Court has in the performance of his or her
duties as a Judge.
152 Legal representation of mentally ill persons and other persons
The fact that a person is suffering from mental illness or a
developmental disability of mind or is suffering from a mental condition
that is not a mental illness or a developmental disability of mind is
presumed not to be an impediment to the representation of the person by
an Australian legal practitioner before the Tribunal.
153 Determination whether a person is a mentally ill person or mentally
disordered person (cf 1990 Act, s 268)
(1) A member of the Tribunal must not determine, for the purposes of this
Act or the Mental Health (Criminal Procedure) Act 1990, that a person
is a mentally ill person or a mentally disordered person unless the
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member is satisfied, on the balance of probabilities, that the person is a
mentally ill person or a mentally disordered person.
(2) In determining whether a person is a mentally ill person, a member is to
give due regard to the following:
(a) any cultural factors relating to the person that may be relevant to
the determination,
(b) any evidence given to the Tribunal by an expert witness
concerning the person's cultural background and its relevance to
any question of mental illness.
154 Rights of appearance and representation (cf 1990 Act, s 274)
(1) A person appointed to assist the Tribunal in a matter may appear before
the Tribunal in relation to any matter in respect of which the person is
appointed.
(2) A forensic patient having any matter before the Tribunal must, unless
the forensic patient decides that he or she does not want to be
represented, be represented by an Australian legal practitioner or, with
the approval of the Tribunal, by another person of his or her choice.
(3) A patient, other than a forensic patient, or a person detained in a mental
health facility having any matter before the Tribunal may be represented
by an Australian legal practitioner or, with the approval of the Tribunal,
by another person of his or her choice.
155 Adjournments (cf 1990 Act, s 271)
(1) The Tribunal may from time to time adjourn its proceedings to such
times, dates and places and for such reasons as it thinks fit.
(2) If the Tribunal adjourns proceedings, a person having a matter before
the Tribunal who is detained in a mental health facility is to continue to
be detained in the facility unless the person is discharged or allowed to
be absent from the facility under another provision of this Act.
156 Inspection etc of medical records (cf 1990 Act, s 276)
(1) A patient or person having any matter before the Tribunal is, unless the
Tribunal otherwise determines, entitled to inspect or otherwise have
access to any medical records in the possession of any person relating
to the patient or person.
(2) A representative of a person having any matter before the Tribunal is
entitled, at any time before or during the consideration of that matter by
the Tribunal, to inspect or otherwise have access to any medical records
in the possession of any person relating to the firstmentioned person.
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(3) Subject to any order or direction of the Tribunal, in relation to an
inspection under subsection (2) of, or other access under that subsection
to, any medical record relating to a person:
(a) if a medical practitioner warns the representative of the person
that it may be harmful to communicate to the person, or any other
person, specified information contained in those medical records,
the representative is to have full and proper regard to that
warning, and
(b) the representative is not obliged to disclose to the person any
information obtained by virtue of the inspection or other access.
157 Production of evidence (cf 1990 Act, s 278)
(1) The Tribunal may of its own motion or on the application of a person
having any matter before the Tribunal issue a summons in the
prescribed form requiring the person to whom the summons is
addressed to do either or both of the following things:
(a) to attend as a witness at a meeting of the Tribunal,
(b) to attend at a meeting of the Tribunal and to produce any
documents in the possession or under the control of the person
relating to any matter before the Tribunal and specified in the
summons.
(2) For the purposes of subsection (1), a summons is issued by the Tribunal
if it is signed by the President or a Deputy President.
(3) The regulations may make provision for or with respect to authorising
compliance with a summons to produce any documents by the
production of the documents at a place specified in the summons at any
time before the meeting of the Tribunal at which the documents are
required to be produced.
(4) A person to whom a summons is addressed is entitled to receive:
(a) if the summons was issued by the Tribunal of its own motion,
from the Tribunal, or
(b) if the summons was issued by the Tribunal on the application of
a person having any matter before the Tribunal, from the person,
the amounts payable for compliance with a subpoena under the Uniform
Civil Procedure Rules 2005.
(5) A person:
(a) who is served with a summons addressed to the person under this
section, and
(b) to whom, at the time of service, is tendered an amount that is
sufficient to cover the person's travelling and other out-of-pocket
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expenses in attending the meeting of the Tribunal specified in the
summons and producing anything required by the summons to be
produced,
must not, without cause, fail or refuse to obey the summons.
Maximum penalty: 50 penalty units.
158 Assistance of interpreters (cf 1990 Act, s 275)
A person having any matter before the Tribunal who is unable to
communicate adequately in English but who is able to communicate
adequately in another language is entitled to be assisted, when
appearing before the Tribunal in relation to the matter, by a competent
interpreter.
159 Record of proceedings
(1) Proceedings before the Tribunal are to be recorded.
(2) Regulations may be made for or with respect to the manner in which the
evidence may be recorded and the authentication of evidence or of
transcripts of evidence given in proceedings.
(3) The regulations may provide for the circumstances in which evidence
given in proceedings is to be transcribed.
160 Tribunal procedure generally
(1) Subject to this Part and the regulations, the procedure for the calling of,
and for the conduct of business at, any meeting of the Tribunal is to be
as determined by the Tribunal.
(2) The regulations may make provision for or with respect to the following
matters:
(a) the procedure for the calling of, and for the conduct of business
at, any meeting of the Tribunal,
(b) the provision of assistance to the Tribunal by relevant qualified
persons for the purposes of determining any matter,
(c) representations that may be made by victims in relation to
proceedings before the Tribunal and victim impact statements,
(d) notification of family members and victims of persons of
proceedings before the Tribunal,
(e) reports and information required to be provided to the Tribunal,
including provisions relating to the matters to be dealt with in
reports and the making of reports available to the Tribunal,
(f) the recording of proceedings and determinations of the Tribunal,
(g) the service of documents on the Tribunal.
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161 Contempt of Tribunal (cf 1990 Act, s 291)
A person must not refuse, neglect or for any reason fail to obey or
comply with an order, direction, decision or determination, under this or
any other Act, of the Tribunal.
Maximum penalty: 50 penalty units.
162 Publication of names
(1) A person must not, except with the consent of the Tribunal, publish or
broadcast the name of any person:
(a) to whom a matter before the Tribunal relates, or
(b) who appears as a witness before the Tribunal in any proceedings,
or
(c) who is mentioned or otherwise involved in any proceedings
under this Act or the Mental Health (Criminal Procedure) Act
1990,
whether before or after the hearing is completed.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or
both.
(2) This section does not prohibit the publication or broadcasting of an
official report of the proceedings of the Tribunal that includes the name
of any person the publication or broadcasting of which would otherwise
be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person
includes a reference to any information, picture or material that
identifies the person or is likely to lead to the identification of the
person.
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Mental Health Bill 2007 Clause 163
Jurisdiction of Supreme Court Chapter 7
Procedures of the Tribunal Part 2
Chapter 7 Jurisdiction of Supreme Court
163 Appeals to the Court (cf 1990 Act, s 281)
(1) A person may appeal to the Court against:
(a) a determination of the Tribunal made with respect to the person,
or
(b) the failure or refusal of the Tribunal to make a determination with
respect to the person in accordance with the provisions of this
Act.
(2) An appeal is to be made subject to and in accordance with the rules of
the Court.
164 Power of the Court on appeals (cf 1990 Act, ss 283, 284)
(1) The Court has, for the purposes of hearing and disposing of an appeal,
all the functions and discretions of the Tribunal in respect of the subject-
matter of the appeal, in addition to any other functions and discretions
it has.
(2) An appeal is to be by way of a new hearing and new evidence or
evidence in addition to, or in substitution for, the evidence given in
relation to the determination of the Tribunal, or the failure or refusal of
the Tribunal to make a determination, in respect of which the appeal is
made may be given on the appeal.
(3) The Court is to have regard to the provisions of this Act and any other
matters it considers to be relevant in determining an appeal.
(4) The decision of the Court on an appeal is, for the purposes of this or any
other Act or instrument, taken to be, where appropriate, the final
determination of the Tribunal and is to be given effect to accordingly.
(5) In hearing and deciding an appeal, the Court may be assisted by 2
assessors selected by the Court from the panel nominated for the
purposes of this Chapter, if the Court considers it appropriate to do so.
(6) An assessor is to sit with the Court in the hearing of an appeal and has
power to advise, but not to adjudicate, on any matter relating to the
appeal.
165 Panel of assessors (cf 1990 Act, s 282)
(1) The Minister must, from time to time, nominate in writing to the Chief
Justice a panel of persons who, in the opinion of the Minister, have
appropriate qualifications and sufficient experience to act as assessors
in the hearing of appeals by the Court under this Chapter.
Page 77
Clause 166 Mental Health Bill 2007
Chapter 7 Jurisdiction of Supreme Court
Part 2 Procedures of the Tribunal
(2) A nomination made under this section is to be accompanied by an oath
taken by the person nominated, in the form prescribed by the
regulations.
(3) Sections 11, 11A and 12 of the Oaths Act 1900 apply to and in respect
of an oath required to be taken under this section as if the oath were an
oath required to be taken under Part 2 of that Act.
166 Jurisdiction of Court to order discharge or transfer of detained person
(cf 1990 Act, s 285)
(1) The Court must order the medical superintendent of a mental health
facility to bring a person before the Court for examination at a time
specified in the order if the Court receives information on oath or has
reason or cause to suspect:
(a) that the person is not a mentally ill person or a mentally
disordered person and is detained in the facility, or
(b) that the person is a mentally ill person or a mentally disordered
person detained in the facility and that other care of a less
restrictive kind is appropriate and reasonably available to the
person, or
(c) that the person is a forensic patient who is wrongly detained in
the facility.
(2) The Court must order that a person (other than a forensic patient)
examined under this section be immediately discharged from the mental
health facility in which the person is detained if, on examination, the
medical superintendent is unable to prove on the balance of
probabilities:
(a) that the person is a mentally ill person or a mentally disordered
person, or
(b) if the person is a mentally ill person or a mentally disordered
person, that no other care of a less restrictive kind is appropriate
and reasonably available to the person.
(3) The Court must order that a forensic patient examined under this section
be immediately transferred to a correctional centre (within the meaning
of the Crimes (Administration of Sentences) Act 1999) if, on
examination under this section, the medical superintendent is unable to
prove that the patient is not wrongly detained in the mental health
facility.
Page 78
Mental Health Bill 2007 Clause 167
Jurisdiction of Supreme Court Chapter 7
Procedures of the Tribunal Part 2
167 Other jurisdiction of the Court not affected (cf 1990 Act, s 286)
Nothing in this Chapter derogates from or otherwise affects the
jurisdiction of the Court under any Act or other law.
168 Tribunal members not liable for costs
The Tribunal or any member of the Tribunal is not liable for any costs
relating to a determination of the Tribunal, or the failure or refusal of the
Tribunal to make a determination, in respect of which an appeal is made
under this Chapter, or of the appeal.
Page 79
Clause 169 Mental Health Bill 2007
Chapter 8 Interstate application of mental health laws
Part 1 Preliminary
Chapter 8 Interstate application of mental health
laws
Part 1 Preliminary
169 Object of Chapter (cf 1990 Act, s 286A)
The object of this Chapter is to make provision with respect to the
following matters:
(a) the interstate transfer of patients under mental health legislation,
(b) the interstate recognition of documents enabling detention of
persons under mental health legislation,
(c) the treatment of interstate persons and persons in this State
subject to community treatment orders or similar orders made in
other States,
(d) the apprehension of persons subject to certain interstate warrants
or orders, or otherwise liable to apprehension, under mental
health legislation.
170 Definitions (cf 1990 Act, s 286B)
In this Chapter:
agreement means an agreement under section 171.
corresponding law means a law declared by the regulations to be a law
corresponding to this Act for the purposes of this Chapter.
interstate community treatment order means an order made under a
corresponding law that is of a class declared by the regulations to be an
interstate community treatment order for the purposes of this Chapter.
State includes an internal or an external Territory of the
Commonwealth.
171 Authority to enter into agreements (cf 1990 Act, s 286C)
(1) The Minister may enter into an agreement with a Minister of another
State for or with respect to any of the following:
(a) the application of mental health laws of this State or the other
State,
(b) the transfer, detention, care, treatment and apprehension of
persons in this State and the other State under mental health laws,
(c) the making of community treatment orders in respect of residents
of this State and the other State under mental health laws,
(d) the recognition, implementation and enforcement of community
treatment orders of this State in the other State and the
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Mental Health Bill 2007 Clause 172
Interstate application of mental health laws Chapter 8
Transfer of patients and persons Part 2
recognition, implementation and enforcement of community
treatment orders of the other State in this State,
(e) administrative matters and other matters ancillary to, or
consequential on, any such matters or any other matters
contained in this Chapter.
(2) Nothing in this section limits the power of the Minister to enter into any
agreement relating to mental health laws.
172 Corresponding laws, documents and interstate community treatment
orders (cf 1990 Act, s 286D)
(1) The regulations may declare that a specified law of another State
relating to mental health is a law corresponding to this Act for the
purposes of this Chapter.
(2) The regulations may declare that a specified class of order relating to the
treatment of persons in the community under a corresponding law of
another State is an interstate community treatment order for the
purposes of this Chapter.
173 New South Wales officers may exercise functions under corresponding
laws (cf 1990 Act, s 286E)
Subject to the provisions of any agreement under this Part, an authorised
medical officer or other person authorised by the Minister for the
purposes of this section, may exercise any function conferred on him or
her by or under a corresponding law or an agreement under this Part.
Part 2 Transfer of patients and persons
Division 1 Transfer of persons from this State
174 Admission of persons to mental health facilities in other States (cf 1990
Act, s 286F)
(1) A person who may be taken to and detained in a mental health facility
under Chapter 3 may be taken to a mental health facility in another State
instead of a mental health facility in this State, if this is permitted by or
under a corresponding law of the other State.
(2) A person may be taken to a mental health facility in another State under
this section by:
(a) a person who is authorised by this Act to take a person to a
declared mental health facility, or to apprehend a person and take
the person to a declared mental health facility, if this is permitted
by or under the law of the other State, or
Page 81
Clause 175 Mental Health Bill 2007
Chapter 8 Interstate application of mental health laws
Part 2 Transfer of patients and persons
(b) any other person who is authorised to do so by the regulations or
under a provision of a corresponding law of the other State.
(3) The regulations may make provision for or with respect to the following
matters:
(a) the handing over of custody of a person referred to in subsection
(1) by persons in this State,
(b) the persons (including interstate persons) who may take any such
person to a mental health facility in another State under this
section,
(c) the mental health facilities to which a person may be taken under
this section and the places taken to be mental health facilities of
another State for the purposes of this section.
175 Effect of certificates (cf 1990 Act, s 286G)
A mental health certificate ceases to have any effect under this Act if the
person concerned is taken to and detained in a mental health facility in
another State.
176 Transfer of patients from this State (cf 1990 Act, s 286H)
(1) A person who is detained as an involuntary patient in a mental health
facility in this State may be transferred to a mental health facility in
another State, if the transfer is permitted by or under a provision of a
corresponding law of the other State and is in accordance with the
regulations.
(2) A person who is transferred to a mental health facility in another State
under this section ceases to be an involuntary patient on admission to
the facility.
(3) A person may be taken to a mental health facility in another State under
this section by a person who is authorised to do so by the regulations or
under a provision of a corresponding law of the other State.
(4) The regulations may make provision for or with respect to the following
matters:
(a) procedures for authorising the transfer of a patient under this
section and for notifying any such transfer or proposed transfer,
(b) criteria for authorising the transfer of a patient under this section,
(c) the handing over of custody of any such patient by persons in this
State,
(d) the persons (including interstate persons) who may take a patient
to a mental health facility in another State under this section,
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Mental Health Bill 2007 Clause 177
Interstate application of mental health laws Chapter 8
Transfer of patients and persons Part 2
(e) the mental health facilities to which a patient may be taken under
this section and the places taken to be mental health facilities for
the purposes of this section.
(5) Section 80 does not apply to a transfer under this section.
Division 2 Transfer of persons to this State
177 Admission of interstate persons to mental health facilities in this State
(cf 1990 Act, s 286I)
(1) A person who may be taken to and detained in a mental health facility
in another State under a corresponding law of that State may instead be
taken to and detained in a declared mental health facility in this State.
(2) A person may be taken to a declared mental health facility in this State
under this section by:
(a) a person who is authorised by this Act to take a person to a
declared mental health facility, or to apprehend a person and take
the person to a declared mental health facility, if this is permitted
by or under the law of the other State, or
(b) any other person who is authorised to do so by the regulations or
under a provision of a corresponding law of the other State.
(3) The regulations may make provision for or with respect to the following
matters:
(a) the handing over of custody of a person referred to in subsection
(1) to persons in this State,
(b) the persons (including interstate persons) who may take any such
person to a declared mental health facility in this State under this
section,
(c) the declared mental health facilities to which a person may be
taken under this section.
178 Application of Act to persons brought to mental health facility from
outside this State (cf 1990 Act, s 286J)
This Act applies to a person who is taken to and detained in a mental
health facility under this Division in the same way as it applies to a
person taken to and detained in a mental health facility under Part 2 of
Chapter 3.
179 Transfer of interstate persons to mental health facilities in this State (cf
1990 Act, s 286K)
(1) A person who is involuntarily detained as a patient in a mental health
facility in another State under a corresponding law may be transferred
Page 83
Clause 180 Mental Health Bill 2007
Chapter 8 Interstate application of mental health laws
Part 3 Community treatment orders and other orders
to a declared mental health facility in this State, if the transfer is
authorised under a provision of a corresponding law of the other State
and accepted by the medical superintendent of the mental health facility
in this State.
(2) A person may be taken to a declared mental health facility in this State
under this section by a person who is authorised to do so by the
regulations or under a provision of a corresponding law of the other
State.
(3) However, a medical superintendent may not accept the transfer of a
person unless the medical superintendent considers that it is likely that
the person is a mentally ill person or a mentally disordered person.
(4) The regulations may make provision for or with respect to the following
matters:
(a) the procedures for authorising and arranging the receipt of a
person under this section,
(b) the persons (including interstate persons) who may take a patient
to a mental health facility in this State under this section,
(c) the receiving of custody of any such person by persons in this
State,
(d) the period within which any such person must be reviewed by the
Tribunal after being transferred to a mental health facility in this
State.
180 Persons transferred taken to be involuntary patients (cf 1990 Act, s 286L)
A person transferred to a mental health facility under this Division is
taken to be an involuntary patient and the provisions of this Act apply
as if the person first became an involuntary patient on the date of the
person's transfer to a mental health facility in this State.
Part 3 Community treatment orders and other orders
181 Community treatment orders relating to interstate persons (cf 1990 Act,
s 286M)
A community treatment order may be made under Part 3 of Chapter 3
for an affected person who does not reside in this State, if the mental
health facility implementing the order is located in this State.
182 Interstate implementation of New South Wales orders
(1) A mental health facility of another State, or any person who provides
services on behalf of any such mental health facility, may treat a person
subject to a community treatment order in this State, and exercise any
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Mental Health Bill 2007 Clause 183
Interstate application of mental health laws Chapter 8
Apprehension of persons absent from mental health facility or in breach of Part 4
orders
other functions of a mental health facility under this Act, for the
purposes of implementing and enforcing the community treatment
order.
(2) The regulations may make provision for or with respect to the following
matters:
(a) the bodies or places that are taken to be mental health facilities of
another State for the purposes of this section,
(b) when the treatment may be given or functions may be exercised
under subsection (1),
(c) the effect in this State of a community treatment order being
recognised by another State.
183 Provision of services under interstate community treatment order
A declared mental health facility, or any person who provides services
on behalf of a declared mental health facility, may treat a person subject
to an interstate community treatment order, and exercise any other
functions for the purposes of implementing and enforcing the interstate
community treatment order, if permitted to do so by the law of another
State.
184 Recognition of interstate community treatment orders
(1) An interstate community treatment order may be recognised in this
State as if it were a community treatment order made by the Tribunal
under this Act, if the conditions for recognition set out in the regulations
are met.
(2) An interstate community treatment order recognised under this section
is taken to be a community treatment order made under this Act and this
Act applies accordingly, except as provided by the regulations.
(3) The regulations may make provision for or with respect to the declared
mental health facilities that may give effect to an interstate community
treatment order recognised under this section.
Part 4 Apprehension of persons absent from mental
health facility or in breach of orders
185 Recognition of warrants and orders (cf 1990 Act, s 286O)
A warrant or an order, or other document authorising the apprehension
of a person, under a corresponding law is recognised in this State if the
conditions for recognition set out in the regulations are met.
Page 85
Clause 186 Mental Health Bill 2007
Chapter 8 Interstate application of mental health laws
Part 4 Apprehension of persons absent from mental health facility or in breach of
orders
186 Apprehension of interstate persons absent without leave or in breach of
corresponding orders (cf 1990 Act, s 286P)
(1) A person who is the subject of a warrant or an order or other document
recognised in this State, or who is otherwise liable to be apprehended,
under a provision of a corresponding law under which the person may
be apprehended and taken to a mental health facility may be
apprehended at any time:
(a) by a police officer, or
(b) by a person who is authorised to do so by the regulations or under
a provision of a corresponding law of the other State.
(2) On being apprehended the person may be conveyed to and detained in
a mental health facility in this State or the other State (if this is permitted
by or under a provision of a corresponding law of the other State).
(3) This Act applies to a person conveyed to and detained in a mental health
facility under this section as if the person had been taken to and detained
in a mental health facility under Part 2 of Chapter 3.
187 Regulations relating to apprehension of persons (cf 1990 Act, s 286Q)
The regulations may make provision for or with respect to the following
matters:
(a) the kinds of warrants, orders or other documents that may be
recognised in this State for the purposes of this Part,
(b) the conditions (if any) to be met before a warrant, order or other
document can be recognised in this State,
(c) the circumstances when a person is taken to be liable to be
apprehended under a corresponding law,
(d) the persons (including interstate persons) who may apprehend a
person under this Part,
(e) the mental health facilities and places to which a person can be
taken under this Part (whether in this State or another State),
(f) the actions (including transfer to the other State) that may be
taken in respect of a person detained under this Part.
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Mental Health Bill 2007 Clause 188
Miscellaneous Chapter 9
Apprehension of persons absent from mental health facility or in breach of Part 4
orders
Chapter 9 Miscellaneous
188 Restrictions on holding of certain offices (cf 1990 Act, s 287)
(1) A person may not hold more than one of the following offices at the
same time:
(a) medical superintendent,
(b) Principal official visitor or official visitor,
(c) member of the Tribunal,
(d) Magistrate, but only where the holder of the office is holding a
mental health inquiry.
(2) If a person contravenes this section, nothing invalidates any act of the
person during the period of the contravention.
(3) The Minister may remove a person who contravenes this section from
any office referred to in subsection (1), other than the office of member
of the Tribunal or Magistrate.
189 Disclosure of information (cf 1990 Act, s 289)
(1) A person must not disclose any information obtained in connection with
the administration or execution of this Act or the regulations unless the
disclosure is made:
(a) with the consent of the person from whom the information was
obtained, or
(b) in connection with the administration or execution of this Act, or
(c) without limiting paragraph (b), to a primary carer of a person in
connection with the provision of care or treatment to the person
under this Act, or
(d) for the purposes of any legal proceedings arising out of this Act
or the regulations or of any report of any such proceedings, or
(e) with other lawful excuse.
Maximum penalty: 50 penalty units.
(2) A person is not required to comply with subsection (1) if
non-compliance is necessarily implied or reasonably contemplated
under an Act or law.
190 Act does not limit or affect other powers
(1) Nothing in this Act limits or affects any power conferred on a police
officer or any other person by or under any other law with respect to
stopping, searching or detaining a person (whether or not a patient) or
taking any such person to any place.
Page 87
Clause 191 Mental Health Bill 2007
Chapter 9 Miscellaneous
Part 4 Apprehension of persons absent from mental health facility or in breach of
orders
(2) Nothing in this Act prevents an authorised medical officer from taking
any action that the officer thinks fit to protect a patient or person
detained in a mental health facility, or any other person in a mental
health facility, from serious physical harm.
191 Liability of police officers and health care professionals exercising
functions under this Act (cf 1990 Act, s 294)
(1) Any police officer, health care professional or ambulance officer who,
in good faith, exercises a function that is conferred or imposed on that
person by or under this Act is not personally liable for any injury or
damage caused by the exercise of that function.
(2) Nothing in this section, or any other provision of this Act or the
regulations, relieves a medical practitioner or other person from liability
in respect of carrying out medical treatment on a patient or other person
to which the medical practitioner or person would have been subject had
the treatment been carried out with the patient's or other person's
consent.
(3) Nothing in this section affects any exclusion from liability provided by
another provision of this Act or any other law.
(4) In this section, health care professional means a person registered
under a health registration Act within the meaning of the Health Care
Complaints Act 1993.
192 Service of documents (cf 1990 Act, s 295)
(1) A document that is authorised or required by this Act or the regulations
to be given to or served on any person may be served by:
(a) in the case of a natural person:
(i) delivering it to the person personally, or
(ii) sending it by post to the address specified by the person for
the giving or service of documents or, if no such address is
specified, the residential or business address of the person
last known to the person giving or serving the document,
or
(iii) sending it by facsimile transmission to the facsimile
number of the person, or
(b) in the case of a body corporate:
(i) leaving it with a person apparently of or above the age of
16 years at, or by sending it by post to, the head office, a
registered office or a principal office of the body corporate
or to an address specified by the body corporate for the
giving or service of documents, or
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Mental Health Bill 2007 Clause 193
Miscellaneous Chapter 9
Apprehension of persons absent from mental health facility or in breach of Part 4
orders
(ii) sending it by facsimile transmission to the facsimile
number of the body corporate.
(2) Nothing in this section affects the operation of any provision of a law or
of the rules of a court authorising a document to be served on a person
in any other manner.
193 Amendment of certain documents (cf 1990 Act, s 296)
(1) A document by virtue of which a person is admitted to a mental health
facility and that is incorrect or defective in any particular may be
amended by the person who signed the document:
(a) within 28 days after the admission of the person, and
(b) with the approval of the authorised medical officer.
(2) A document that is amended in accordance with this section is taken to
have had effect in its amended form on and from its original date.
(3) If an incorrect or defective document is not amended in accordance with
this section, the authorised medical officer:
(a) may order the discharge of the person admitted to the mental
health facility by virtue of the document, or
(b) may do such things as are necessary to obtain a document in
substitution for that document.
(4) A document obtained in substitution for another document is to be taken
to have had effect as if it had come into existence on the date on which
the document for which it is substituted came into or purported to come
into existence.
194 Approved forms (cf 1990 Act, s 302A)
The Minister may approve such forms (other than prescribed forms
required by this Act) as may be necessary or convenient for the
administration of this Act.
195 Role of objects provisions
The provisions of sections 3, 68 and 105 are intended to give guidance
in the administration of this Act and do not create, or confer on any
person, any right or entitlement enforceable at law.
196 Regulations (cf 1990 Act, s 302)
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
Page 89
Clause 196 Mental Health Bill 2007
Chapter 9 Miscellaneous
Part 4 Apprehension of persons absent from mental health facility or in breach of
orders
(2) In particular, the regulations may make provision for or with respect to
the following:
(a) the functions, responsibilities, obligations and liabilities of
medical superintendents, other authorised medical officers,
medical officers and directors of community treatment,
(b) the exercise by the Principal official visitor and the official
visitors of their functions,
(c) matters relating to mental health inquiries,
(d) the establishment and functions of a registry or registries to assist
in the administration of the Tribunal and in the holding of mental
health inquiries under this Act,
(e) procedures for approval of operations, treatments or procedures
that are permitted to be carried out under this Act,
(f) standards of patient care,
(g) the establishment, in relation to a mental health facility, of a
patient care review committee and the functions of such a
committee,
(h) matters relating to the rights and privileges of patients and
persons under detention in mental health facilities,
(i) the establishment of, and payments to and from, funds and
accounts for the keeping of money received on behalf of
individual patients or for the benefit, use or enjoyment of patients
generally and the payment of amounts by or on behalf of patients,
(j) the use of patients' funds and the investment and management of
any such funds and accounts,
(k) prescribing the forms required by this Act,
(l) prescribing the keeping and form of such books, records,
registers or other documents, or the furnishing of such reports or
statistics, as may be necessary or convenient for the
administration of this Act,
(m) the modification of Part 3 of Chapter 3 in its application to the
making of a community treatment order under section 47 of the
Mental Health (Criminal Procedure) Act 1990.
(3) A regulation may apply, adopt or incorporate, with or without
modification, any publication as in force at a particular time or from
time to time.
(4) A regulation may create an offence punishable by a penalty not
exceeding 5 penalty units.
Page 90
Mental Health Bill 2007 Clause 197
Miscellaneous Chapter 9
Apprehension of persons absent from mental health facility or in breach of Part 4
orders
197 Proceedings for offences (cf 1990 Act, s 299)
(1) Proceedings for an offence against this Act or the regulations are to be
dealt with summarily before a Local Court.
(2) Proceedings for an offence under section 102 (Special medical
treatment) are to be dealt with on indictment.
198 Savings, transitional and other provisions
Schedule 6 has effect.
199 Amendment of other Acts
The Acts specified in Schedule 7 are amended as set out in that
Schedule.
200 Repeal of Mental Health Act 1990 No 9
The Mental Health Act 1990 is repealed.
201 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5
years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
Page 91
Mental Health Bill 2007
Schedule 1 Medical certificate as to examination or observation of person
Schedule 1 Medical certificate as to examination or
observation of person
(Section 19)
Mental Health Act 2007
Part 1
I, [name in full--use block letters] (Medical Practitioner/accredited person) of certify
that on [date] immediately before or shortly before completing this certificate, at [state place
where examination/observation took place] I personally examined/personally observed
[name of person in full] for a period of [state length of examination/observation].
I certify the following matters:
1. I am of the opinion that the person examined/observed by me is a mentally ill person
suffering from mental illness/or a mentally disordered person and that there are
reasonable grounds for believing the person's behaviour for the time being is so
irrational as to justify a conclusion on reasonable grounds that temporary care,
treatment or control of the person is necessary:
(a) in the case of a mentally ill person:
(i) for the person's own protection from serious harm, or
(ii) for the protection of others from serious harm, or
(b) in the case of a mentally disordered person:
(i) for the person's own protection from serious physical harm, or
(ii) for the protection of others from serious physical harm.
2. I have satisfied myself, by such inquiry as is reasonable having regard to the
circumstances of the case, that the person's involuntary admission to and detention in
a mental health facility are necessary and that no other care of a less restrictive kind is
appropriate and reasonably available to the person.
3. Incidents and/or abnormalities of behaviour and conduct (a) observed by myself and
(b) communicated to me by others (state name, relationship and address of each
informant) are:
(a) ...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
(b) ...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
4. The general medical and/or surgical condition of the person is as follows:
.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................
Page 92
Mental Health Bill 2007
Medical certificate as to examination or observation of person Schedule 1
5. The following medication (if any) has been administered for purposes of psychiatric
therapy or sedation:
.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................
6. I am not a near relative or the primary carer of the person.
7. I have/do not have a pecuniary interest, directly or indirectly, in a private mental health
facility. I have/do not have a near relative/partner/assistant who has such an interest.
Particulars of the interest are as follows:
.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................
Made and signed this [date]
[Signature]
Part 2
The following persons may transport a person to a mental health facility: a member of staff
of the NSW Health Service, an ambulance officer, a police officer.
If the assistance of a police officer is required, this Part of the Form must be completed.
YOU SHOULD NOT REQUEST THIS ASSISTANCE UNLESS THERE ARE SERIOUS
CONCERNS RELATING TO THE SAFETY OF THE PERSON OR OTHER PERSONS IF
THE PERSON IS TAKEN TO A MENTAL HEALTH FACILITY WITHOUT THE
ASSISTANCE OF A POLICE OFFICER
I have assessed the risk and I am of the opinion, in relation to [name of person in full] that
there are serious concerns relating to the safety of the person or other persons if the person is
taken to a mental health facility without the assistance of a police officer. The reason for me
being of this opinion is [include any information known about the patient relevant to the risk].
Made and signed this [date]
[Signature]
Notes
1 Sections 13-16 of the Mental Health Act 2007 state:
13 Criteria for involuntary admission etc as mentally ill person or mentally
disordered person
A person is a mentally ill person or a mentally disordered person for the purpose
of:
(a) the involuntary admission of the person to a mental health facility or the
detention of the person in a facility under this Act, or
(b) determining whether the person should be subject to a community
treatment order or be detained or continue to be detained involuntarily in
a mental health facility,
if, and only if, the person satisfies the relevant criteria set out in this Part.
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Schedule 1 Medical certificate as to examination or observation of person
14 Mentally ill persons
(1) A person is a mentally ill person if the person is suffering from mental illness and,
owing to that illness, there are reasonable grounds for believing that care,
treatment or control of the person is necessary:
(a) for the person's own protection from serious harm, or
(b) for the protection of others from serious harm.
(2) In considering whether a person is a mentally ill person, the continuing condition
of the person, including any likely deterioration in the person's condition and the
likely effects of any such deterioration, are to be taken into account.
15 Mentally disordered persons
A person (whether or not the person is suffering from mental illness) is a mentally
disordered person if the person's behaviour for the time being is so irrational as
to justify a conclusion on reasonable grounds that temporary care, treatment or
control of the person is necessary:
(a) for the person's own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.
16 Certain words or conduct may not indicate mental illness or disorder
(1) A person is not a mentally ill person or a mentally disordered person merely
because of any one or more of the following:
(a) the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular political opinion or belief,
(b) the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular religious opinion or belief,
(c) the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular philosophy,
(d) the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular sexual preference or sexual
orientation,
(e) the person engages in or refuses or fails to engage in, or has engaged in
or refused or failed to engage in, a particular political activity,
(f) the person engages in or refuses or fails to engage in, or has engaged in
or refused or failed to engage in, a particular religious activity,
(g) the person engages in or has engaged in a particular sexual activity or
sexual promiscuity,
(h) the person engages in or has engaged in immoral conduct,
(i) the person engages in or has engaged in illegal conduct,
(j) the person has developmental disability of mind,
(k) the person takes or has taken alcohol or any other drug,
(l) the person engages in or has engaged in anti-social behaviour,
(m) the person has a particular economic or social status or is a member of a
particular cultural or racial group.
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Medical certificate as to examination or observation of person Schedule 1
(2) Nothing in this Part prevents, in relation to a person who takes or has taken
alcohol or any other drug, the serious or permanent physiological, biochemical or
psychological effects of drug taking from being regarded as an indication that a
person is suffering from mental illness or other condition of disability of mind.
2 In addition to matters ascertained as a consequence of personally examining or observing the
person, account may be taken of other matters not so ascertained where those matters:
(a) arise from a previous personal examination of the person, or
(b) are communicated by a reasonably credible informant.
3 In the Mental Health Act 2007, mental illness is defined as follows:
mental illness means a condition that seriously impairs, either temporarily or
permanently, the mental functioning of a person and is characterised by the
presence in the person of any one or more of the following symptoms:
(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any
one or more of the symptoms referred to in paragraphs (a)-(d).
4 In the Mental Health Act 2007, primary carer is defined as follows:
71 Primary carer
(1) The primary carer of a person (the patient) for the purposes of this Act is:
(a) the guardian of the patient, or
(b) the parent of a patient who is a child (subject to any nomination by a
patient referred to in paragraph (c)), or
(c) if the patient is over the age of 14 years and is not a person under
guardianship, the person nominated by the patient as the primary carer
under this Part under a nomination that is in force, or
(d) if the patient is not a patient referred to in paragraph (a) or (b) or there is
no nomination in force as referred to in paragraph (c):
(i) the spouse of the patient, if any, if the relationship between the
patient and the spouse is close and continuing, or
(ii) any person who is primarily responsible for providing support or
care to the patient (other than wholly or substantially on a
commercial basis), or
(iii) a close friend or relative of the patient.
(2) In this section:
close friend or relative of a patient means a friend or relative of the patient who
maintains both a close personal relationship with the patient through frequent
personal contact and a personal interest in the patient's welfare and who does not
provide support to the patient wholly or substantially on a commercial basis.
5 For admission purposes, this certificate is valid only for a period of 5 days, in the case of a person
who is a mentally ill person, or 1 day, in the case of a person who is a mentally disordered person,
after the date on which the certificate is given.
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Schedule 2 Mental health inquiries
Schedule 2 Mental health inquiries
(Section 34 (3))
1 General conduct of inquiries
(1) The Magistrate may appoint a person to assist the Magistrate in respect
of a mental health inquiry and a person so appointed may appear before
the Magistrate during the holding of the inquiry.
(2) An inquiry is to be open to the public.
(3) However, if the Magistrate is satisfied that it is desirable to do so for the
welfare of the person before the inquiry or for any other reason, the
Magistrate may (of his or her own motion or on the application of the
person or another person appearing at the inquiry) make any one or
more of the following orders:
(a) an order that the inquiry be conducted wholly or partly in private,
(b) an order prohibiting or restricting the publication or broadcasting
of any report of proceedings before the Magistrate,
(c) an order prohibiting or restricting the publication of evidence
given before the inquiry, whether in public or in private, or of
matters contained in documents lodged with the inquiry or
received in evidence at the inquiry,
(d) an order prohibiting or restricting the disclosure to some or all of
the parties to the proceedings of evidence given at the inquiry, or
of the contents of a document lodged with the inquiry or received
in evidence at the inquiry.
Note. Clause 7 prohibits the publication or broadcasting of the name of a person
involved in an inquiry or other material that may identify any such person, except
with the consent of the Magistrate.
(4) An assessable person who is unable to communicate adequately in
English but who is able to communicate adequately in another language
is entitled to be assisted by an interpreter when appearing at the inquiry.
(5) The Magistrate may administer an oath to any person giving evidence
at an inquiry.
(6) The assessable person is to be represented at an inquiry by an Australian
legal practitioner or (with the leave of the Magistrate) another person
chosen by the assessable person, unless the assessable person decides
that he or she does not wish to be represented.
(7) Any other person appearing at a mental health inquiry may (with the
leave of the Magistrate) be represented by an Australian legal
practitioner.
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Mental health inquiries Schedule 2
(8) The primary carer of an assessable person may, with the leave of the
Magistrate, appear at an inquiry.
2 Notification and information given to assessable person to be checked
by Magistrate
(1) As soon as practicable after the beginning of a mental health inquiry, the
Magistrate must ask the assessable person whether the person:
(a) has been given a written statement, in the prescribed form, of the
person's legal rights and other entitlements, as required by
section 74, and
(b) whether the person has been informed of the duty imposed under
section 76 on the authorised medical officer relating to the giving
of the notice specified in that section.
(2) As soon as practicable after the beginning of a mental health inquiry, the
Magistrate must ascertain from the authorised medical officer whether
the written statement and notice referred to in subclause (1) have been
given or all such things as are reasonably practicable have been done to
give that statement or notice, as the case requires.
3 Legal representation of mentally ill persons and other persons
The fact that a person is suffering from mental illness or a
developmental disability of mind or is suffering from a mental condition
that is neither a mental illness nor a developmental disability of mind is
presumed not to be an impediment to the representation of the person by
an Australian legal practitioner at a mental health inquiry.
4 Adjournments
(1) The Magistrate may, from time to time, adjourn a mental health inquiry
for a period not exceeding 14 days.
(2) Without limiting subclause (1), the Magistrate may adjourn the inquiry
if the Magistrate is not satisfied:
(a) that the assessable person has been informed of the duty imposed
under section 76 on the authorised medical officer relating to the
giving of the notice specified in that section, or
(b) that the notice specified in the section has been given or all such
things as are reasonably practicable have been done to give that
notice.
(3) The Magistrate may adjourn an inquiry under this clause only if:
(a) the Magistrate is of the opinion that it is in the best interests of the
assessable person to do so, and
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(b) the Magistrate has considered any certificates given under this
Act available to the Magistrate.
(4) If an inquiry is adjourned, the assessable person is to continue to be
detained in the mental health facility unless the person is discharged or
allowed to be absent from the facility under another provision of this
Act.
5 Summons to produce evidence
(1) A Magistrate holding a mental health inquiry may on his or her own
motion or on the application of an assessable person or a person given
leave to appear at an inquiry issue a summons in the form prescribed by
the regulations requiring the person to whom the summons is addressed
to do either or both of the following things:
(a) to attend as a witness at the inquiry,
(b) to attend at the inquiry and to produce any documents in the
possession or under the control of the person relating to the
inquiry and specified in the summons.
(2) The regulations may make provision for or with respect to authorising
compliance with a summons to produce any documents by the
production of the documents at a place specified in the summons at any
time before the inquiry at which the documents are required to be
produced.
(3) A person to whom a summons is addressed is entitled to receive:
(a) if the summons was issued by the Magistrate on his or her own
motion, from the principal officer of the mental health facility
where the person to whom the inquiry relates is detained, or
(b) if the summons was issued on the application of another person,
from that other person,
the amounts payable for compliance with a subpoena under the Uniform
Civil Procedure Rules 2005.
(4) A person:
(a) who is served with a summons addressed to the person under this
clause, and
(b) to whom, at the time of service, is tendered an amount that is
sufficient to cover the person's travelling and other out-of-pocket
expenses in attending the inquiry specified in the summons and
producing anything required by the summons to be produced,
must not, without reasonable excuse, fail or refuse to obey the
summons.
Maximum penalty: 50 penalty units.
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Mental health inquiries Schedule 2
6 Inspection etc of medical records
(1) An assessable person is entitled to inspect or otherwise have access to
any medical records relating to the person in the possession of any other
person, unless the Magistrate otherwise determines.
(2) A representative of an assessable person at a mental health inquiry is
entitled, at any time before or during the inquiry, to inspect or otherwise
have access to any relevant medical records relating to the person in the
possession of any other person.
(3) If a medical practitioner warns the representative of the assessable
person that it may be harmful to communicate to the person, or any
other person, specified information contained in those medical records:
(a) the representative is to have full and proper regard to that
warning, and
(b) the representative is not obliged to disclose to the person any
information obtained by virtue of the inspection or other access.
(4) Subclause (3) is subject to any order or direction of the Magistrate, in
relation to an inspection under subclause (2).
7 Publication of names etc
(1) A person must not, except with the consent of the Magistrate holding a
mental health inquiry, publish or broadcast the name of any person:
(a) to whom the inquiry relates, or
(b) who appears as a witness at the inquiry, or
(c) who is mentioned or otherwise involved in the inquiry,
whether before or after the hearing is completed.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or
both.
(2) This clause does not prohibit the publication or broadcasting of an
official report of any such inquiry that includes the name of any person
the publication or broadcasting of which would otherwise be prohibited
by this clause.
(3) For the purposes of this clause, a reference to the name of a person
includes a reference to any information, picture or other material that
identifies the person or is likely to lead to the identification of the
person.
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Schedule 2 Mental health inquiries
8 Records of proceedings
(1) Proceedings of the inquiry are to be recorded.
(2) Regulations may be made for or with respect to the manner in which the
evidence may be recorded and the authentication of evidence or of
transcripts of evidence given in proceedings.
(3) The regulations may provide for the circumstances in which evidence
given in proceedings is to be transcribed.
9 Record of decision
(1) An order or direction of a Magistrate pursuant to a mental health inquiry
is to be recorded in the form of an instrument in writing and is to include
the reasons for the order or direction.
(2) Nothing in this clause prevents a Magistrate from giving an order or
direction orally.
(3) An order or direction given orally by a Magistrate is to be recorded in
accordance with this clause.
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Statement of rights Schedule 3
Schedule 3 Statement of rights
(Section 74 (3))
Statement of rights
Your rights
You should read the questions and answers below to find out your rights and what may
happen to you after you are brought to a mental health facility.
What happens after I arrive at a mental health facility?
You must be seen by a facility doctor not later than 12 hours after you arrive at the mental
health facility.
If you are a person who is already in a mental health facility as a voluntary patient, and you
have been told you are now to be kept in the facility against your will, you must be seen by a
facility doctor not later than 12 hours after it is decided to keep you in the facility.
When can I be kept in a mental health facility against my will?
You can be kept in a mental health facility against your will if you are certified by the facility
doctor as a mentally ill person or a mentally disordered person. The doctor will decide
whether or not you are a mentally ill person or a mentally disordered person.
A mentally ill person is someone who has a mental illness and who needs to be kept in a
mental health facility for his or her own protection or to protect other people. A mentally
disordered person is someone whose behaviour shows that he or she needs to be kept in a
mental health facility for a short time for his or her own protection or to protect other people.
The facility cannot continue to keep you against your will unless at least one other doctor also
finds that you are a mentally ill person or a mentally disordered person. At least one of the
doctors who sees you must be a psychiatrist.
How long can I be kept in a mental health facility against my will?
If you are found to be a mentally disordered person, you can only be kept in a mental health
facility for up to 3 DAYS (weekends and public holidays are not counted in this time). During
this time you must be seen by a doctor at least once every 24 hours. You cannot be detained
as a mentally disordered person more than 3 times in any month.
If you are found to be a mentally ill person, you will be kept in the mental health facility until
you see a Magistrate who will hold a mental health inquiry to decide what will happen to you.
How can I get out of a mental health facility?
You, or a friend or relative, may at any time ask the medical superintendent or another
authorised medical officer to let you out. You must be let out if you are not a mentally ill
person or a mentally disordered person or if the medical superintendent or another authorised
medical officer thinks that there is other appropriate care reasonably available to you.
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Can I be treated against my will?
The facility staff may give you appropriate medical treatment, even if you do not want it, for
your mental condition or in an emergency to save your life or prevent serious damage to your
health. The facility staff must tell you what your medical treatment is if you ask. You must
not be given excessive or inappropriate medication.
Can I be given electro convulsive therapy (ECT) against my will?
Yes, but only if the Mental Health Review Tribunal determines at a hearing that it is necessary
or desirable for your safety or welfare. You have a right to attend that hearing.
More information
You should read the questions and answers below to find out about Magistrates' mental
health inquiries and when you may be kept in a mental health facility against your will after
an inquiry.
When is a Magistrate's mental health inquiry held?
A Magistrate's mental health inquiry must be held as soon as possible after it is decided to
keep you in a mental health facility against your will because you are a mentally ill person.
What happens at a Magistrate's mental health inquiry?
The Magistrate will decide whether or not you are a mentally ill person.
If the Magistrate decides that you are not a mentally ill person, you must be let out of the
mental health facility.
If the Magistrate decides that you are a mentally ill person, the Magistrate will then decide
what will happen to you. Consideration must be given to the least restrictive environment in
which care and treatment can be effectively given. The Magistrate may order that you be kept
in a mental health facility as an INVOLUNTARY PATIENT for a set time (not more than 3
months) or the Magistrate may order that you be let out of the mental health facility. If you
are let out, the Magistrate may make a community treatment order requiring you to have
certain treatment after you are let out.
The Magistrate may adjourn the inquiry for up to 14 days where he or she considers that it is
in your best interests.
If the Magistrate makes an order that you are to remain in a mental health facility as an
involuntary patient, the Magistrate must also consider whether you are capable of managing
your financial affairs. If the Magistrate is not satisfied that you are capable, an order must be
made for the management of your affairs under the Protected Estates Act 1983.
What rights do I have at a Magistrate's mental health inquiry?
You can tell the Magistrate what you want or have your lawyer tell the Magistrate what you
want. You can wear street clothes, be helped by an interpreter and have your primary carer,
relatives and friends told about the inquiry. You can apply to see your medical records.
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Statement of rights Schedule 3
What are my rights of appeal if I have been made an involuntary patient?
You (or a carer or friend or relative) may at any time ask the medical superintendent or
another authorised medical officer to discharge you. If the medical superintendent or
authorised medical officer refuses or does not respond to your request within 3 working days
you (or a carer or friend or relative) may lodge an appeal with the Mental Health Review
Tribunal.
You will be given a notice setting out your appeal rights.
What happens when the time set by an order making me an involuntary patient
has nearly ended?
The facility medical staff will review your condition before the end of the order and the
mental health facility may either discharge you or apply to the Mental Health Review
Tribunal for a further order.
The Tribunal must let you out of the mental health facility if it decides that you are not a
mentally ill person or if it feels that other care is more appropriate and reasonably available.
Who can I ask for help?
You may ask any facility staff member, social worker, doctor, official visitor, chaplain, your
own lawyer or the Mental Health Advocacy Service for help. The Mental Health Advocacy
Service telephone number is: ...................................................................................................
(Note. Appropriate telephone numbers should be included.)
Can I ask a friend or relative to act for me?
You may nominate a person to be your primary carer while you are in a mental health facility.
Your primary carer may ask for information on your behalf and will be informed if you are
kept in a mental health facility, subject to a mental health inquiry, transferred or discharged
and of proposed special mental health treatments or surgical operations. You and your
primary carer also have the right to be given information about follow-up care if you are
discharged.
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Schedule 4 Provisions relating to Principal official visitor and official visitors
Schedule 4 Provisions relating to Principal official
visitor and official visitors
(Section 130)
1 Definition
In this Schedule:
official visitor includes the Principal official visitor.
2 Terms of office
Subject to this Schedule, an official visitor holds office for the period
(not exceeding 3 years) that is specified in the official visitor's
instrument of appointment, but is eligible (if otherwise qualified) for
re-appointment.
3 Remuneration
An official visitor is entitled to be paid such remuneration (including
travelling and subsistence allowances) as the Minister may from time to
time determine in respect of the official visitor.
4 Vacancy in office of member
(1) The office of an official visitor becomes vacant if the official visitor:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) is removed from office by the Minister under this clause or by the
Governor under Chapter 5 of the Public Sector Employment and
Management Act 2002, or
(e) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for
their benefit, or
(f) is convicted in New South Wales of an offence that is punishable
by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if
committed in New South Wales, would be an offence so
punishable, or
(g) being the Principal official visitor or an official visitor appointed
for a private mental health facility, has a pecuniary interest,
directly or indirectly, in a private mental health facility, or
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Provisions relating to Principal official visitor and official visitors Schedule 4
(h) signs a certificate or request for the admission of a person to a
mental health facility or attends professionally on a patient in a
mental health facility.
(2) The Minister may remove an official visitor from office at any time.
5 Suspension of office
(1) An official visitor is suspended from office if the official visitor
becomes a mentally incapacitated person.
(2) The suspension from office ceases when the official visitor ceases to be
a mentally incapacitated person or the period of the official visitor's
appointment expires, whichever is the earlier.
6 Effect of certain other Acts
(1) The Public Sector Employment and Management Act 2002 does not
apply to the appointment of an official visitor and an official visitor is
not, as an official visitor, subject to that Act (except Chapter 5).
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside the
duties of that office,
the provision does not operate to disqualify the person from holding that
office and also the office of an official visitor or from accepting and
retaining any remuneration payable to the person under this Act as an
official visitor.
(3) The office of an official visitor is not, for the purposes of any Act, an
office or place of profit under the Crown.
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Mental Health Bill 2007
Schedule 5 Provisions relating to members of Tribunal
Schedule 5 Provisions relating to members of
Tribunal
(Section 140 (3))
1 Qualifications
(1) A person is qualified for appointment as President or as a Deputy
President if the person is an Australian legal practitioner of at least
7 years' standing.
(2) A person may not be appointed as the President or a Deputy President
unless the person has been in practice as an Australian legal practitioner,
or has held a judicial or legal office under the Crown in right of the
Commonwealth or this State or any other State or a Territory of the
Commonwealth, within 2 years immediately preceding the person's
appointment.
2 Term of office of members
(1) A member holds office for the period specified in the member's
instrument of appointment.
(2) The term of an appointment must not exceed 7 years.
(3) A member is eligible for re-appointment.
3 Duties of full-time members
A full-time member must devote the whole of his or her time to the
duties of the office of member, except as permitted by this Act or except
with the consent of the Minister.
4 Part-time arrangements
A Deputy President, although not appointed on a part-time basis, may,
by agreement in writing entered into with the President, exercise the
functions of Deputy President on a part-time basis.
5 Remuneration and allowances for members
(1) The President and a Deputy President are entitled to be paid:
(a) remuneration in accordance with the Statutory and Other Offices
Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister may
from time to time determine in respect of the President or a
Deputy President.
(2) A member, other than the President or a Deputy President, is entitled to
be paid such remuneration (including travelling and subsistence
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allowances) as the Minister may from time to time determine in respect
of the member.
6 Deputy Presidents
(1) A Deputy President, while holding office as a Deputy President, has,
subject to the conditions of appointment specified in the instrument of
appointment and to any direction given by the President, the powers,
authorities, privileges and immunities of and is to perform the duties of
the President.
(2) No person is to be concerned to inquire whether or not any occasion has
arisen authorising a Deputy President to exercise the functions of the
President and all acts or things done or omitted or suffered to be done
by a Deputy President when exercising those functions are as valid and
effectual and have the same consequences as if they had been done or
omitted or suffered to be done by the President.
7 Deputies
(1) The Minister may, from time to time, appoint as the deputy of a
member, a person who holds the same qualifications, if any, as are
required to be held by the person for whom he or she is the deputy.
(2) In the absence of a member, the member's deputy:
(a) is, if available, to act in the place of the member, and
(b) while so acting, has all the functions of the member and is to be
taken to be the member.
(3) Subject to clause 6 (1), the deputy of a member who is the President or
a Deputy President has the member's functions as President or Deputy
President.
(4) A person while acting in the place of a member is entitled to be paid
such remuneration (including travelling and subsistence allowances) as
the Minister may from time to time determine in respect of the person.
8 Vacancy in office of member
(1) The office of a member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) is removed from office by the Minister under this clause or by the
Governor under Chapter 5 of the Public Sector Employment and
Management Act 2002, or
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Schedule 5 Provisions relating to members of Tribunal
(e) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for
their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence which is
punishable by imprisonment for 12 months or more or is
convicted elsewhere than in New South Wales of an offence
which, if committed in New South Wales, would be an offence so
punishable, or
(h) being a full-time member, engages in any paid employment
outside the duties of the office of member, except with the
consent of the Minister.
(2) The Minister may remove a member from office at any time.
9 Filling of vacancy in office of member
If the office of a member becomes vacant, a person who holds the same
qualification, if any, as the member whose office has become vacant is,
subject to this Act, to be appointed to fill the vacancy.
10 Effect of certain other Acts
(1) The Public Sector Employment and Management Act 2002 does not
apply to the appointment of a member and a member is not, as a
member, subject to that Act (except Chapter 5).
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that office, and
(b) prohibiting the person from engaging in employment outside the
duties of that office,
the provision does not operate to disqualify the person from holding that
office and also the office of a part-time member or from accepting and
retaining any remuneration payable to the person under this Act as such
a part-time member.
(3) The office of a member is not, for the purposes of any Act, an office or
place of profit under the Crown.
11 Preservation of rights of member previously public servant etc
(1) In this clause:
statutory body means any body declared under clause 12 to be a
statutory body for the purposes of this Schedule.
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superannuation scheme means a scheme, fund or arrangement
established by or under an Act under which any superannuation or
retirement benefits are provided.
(2) This clause applies to a member who, immediately before being
appointed as a member, was:
(a) an officer of the Government Service, the Teaching Service or the
NSW Health Service, or
(b) a contributor to a superannuation scheme, or
(c) an officer employed by a statutory body, or
(d) a person in respect of whom provision was made by any Act for
the retention of any rights accrued or accruing to the person as an
officer or employee.
(3) Subject to the terms of the member's appointment, the member:
(a) is to retain any rights accrued or accruing to him or her as such an
officer, contributor or person, and
(b) may continue to contribute to any superannuation scheme to
which he or she was a contributor immediately before being
appointed as a member, and
(c) is entitled to receive any deferred or extended leave and any
payment, pension or gratuity,
as if the member had continued to be such an officer, contributor or
person during his or her service as a member.
(4) Service as a member is to be regarded as service as an officer or
employee for the purpose of any law under which any such rights
accrued or were accruing, under which he or she continues to contribute
to any such superannuation scheme or by which any such entitlement is
conferred.
(5) For the purposes of the superannuation scheme to which the member is
entitled to contribute under this clause, the member is to be regarded as
an officer or employee and the Government of New South Wales is to
be regarded as the employer.
(6) If a member would, but for this subclause, be entitled under subclause
(3) to contribute to a superannuation scheme or to receive any payment,
pension or gratuity under the scheme:
(a) he or she is not so entitled on becoming (whether on appointment
as a member or at any later time while holding office as a
member) a contributor to any other superannuation scheme, and
(b) the provisions of subclause (5) cease to apply to or in respect of
him or her in any case where he or she becomes a contributor to
any such other superannuation scheme.
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(7) Subclause (6) does not prevent the payment to a member (on his or her
ceasing to be a contributor to a superannuation scheme) of such amount
as would have been payable to him or her if he or she had ceased, by
reason of resignation, to be an officer or employee for the purposes of
the scheme.
(8) A member is not, in respect of the same period of service, entitled to
claim a benefit under this Act and another Act.
12 Declaration of statutory bodies
The Governor may, by proclamation published in the Gazette, declare
any body constituted by or under any Act to be a statutory body for the
purposes of this Schedule.
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Schedule 6 Savings, transitional and other
provisions
(Section 198)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
Part 2 Provisions consequent on enactment of this
Act
2 Definitions
In this Part:
the 1898 Act means the Lunacy Act of 1898.
the 1958 Act means the Mental Health Act 1958.
the 1983 Act means the Mental Health Act 1983.
the 1990 Act means the Mental Health Act 1990.
3 General savings
(1) Any act, matter or thing done or omitted to be done under a provision of
the 1990 Act and having any force or effect immediately before the
commencement of a provision of this Act or the Mental Health
(Criminal Procedure) Act 1990 that replaces that provision is, on that
commencement, taken to have been done or omitted under the provision
of this Act or the Mental Health (Criminal Procedure) Act 1990.
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(2) This clause does not apply:
(a) to the extent that its application is inconsistent with any other
provision of this Schedule or a provision of a regulation under
clause 1, or
(b) to the extent that its application would be inappropriate in a
particular case.
4 Construction of certain references
(1) A reference (however expressed) in any other Act, in any instrument
made under an Act or in any other instrument of any kind:
(a) to an admission centre or a mental hospital, or both, within the
meaning of the 1958 Act or to a hospital within the meaning of
the 1990 Act--is to be read as a reference to a declared mental
health facility, or
(b) to an authorised hospital within the meaning of the 1958 Act or
the 1990 Act--is to be read as a reference to a private mental
health facility, or
(c) to a hospital for the insane, a hospital for the criminal insane or a
reception-house, or any combination of those expressions, within
the meaning of the 1898 Act--is to be read as a reference to a
mental health facility, or
(d) to a licensed house within the meaning of the 1898 Act--is to be
read as a reference to a private mental health facility.
(2) A reference (however expressed) in any other Act, in any instrument
made under an Act or in any other instrument of any kind:
(a) to a mentally ill person within the meaning of the 1958 Act or the
1990 Act--is to be read as a reference to a mentally ill person
within the meaning of this Act, or
(b) to a voluntary patient within the meaning of the 1958 Act or an
informal patient within the meaning of the 1983 or 1990 Act--is
to be read as a reference to a voluntary patient within the meaning
of this Act, or
(c) to a temporary patient within the meaning of the 1958 Act, the
1983 Act or the 1990 Act--is to be read as a reference to an
involuntary patient within the meaning of this Act, or
(d) to a continued treatment patient within the meaning of the 1958
Act, the 1983 Act or the 1990 Act--is to be read as a reference to
an involuntary patient within the meaning of this Act, or
(e) to a person under detention under Part 7 of the 1958 Act or a
forensic patient within the meaning of the 1983 Act or the 1990
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Act--is to be read as a reference to a forensic patient within the
meaning of this Act, or
(f) to a patient within the meaning of the 1958 Act--is to be read as
a reference to a patient (other than a voluntary patient) within the
meaning of this Act, or
(g) to a person detained in an admission centre under section 12 of
the 1958 Act--is to be read as a reference to a person taken to and
detained in a mental health facility under Part 2 of Chapter 3 of
this Act, or
(h) to a patient or an insane patient, or both, within the meaning of
the 1898 Act--is to be read as a reference to a patient (other than
a voluntary patient) within the meaning of this Act, or
(i) to a lunatic within the meaning of the 1898 Act--is to be read as
a reference to a mentally ill person.
(3) A reference (however expressed) in any other Act, in any instrument
made under an Act or in any other instrument of any kind:
(a) to a provision of the 1958 Act or of the 1898 Act--is, except as
provided by paragraph (c), to be read as a reference to the
corresponding provision, if any, of this Act or of the Protected
Estates Act 1983, as the case requires, or
(b) to the 1958 Act or the 1898 Act--is, except as provided by
paragraph (c), to be read as a reference to this Act or the
Protected Estates Act 1983, as the case requires, or
(c) to the keeping in strict custody pursuant to section 23 (3) of the
1958 Act of any person--is to be read as a reference to the
detention of that person pursuant to section 25 or 39, as the case
requires, of the Mental Health (Criminal Procedure) Act 1990.
5 Mental health facilities
(1) A place that was, immediately before the repeal of section 208 of the
1990 Act, the subject of an order in force under that section is taken to
be a declared mental health facility the subject of an order in force under
section 109 of this Act and this Act applies accordingly.
(2) A place that was, immediately before the repeal of section 212 of the
1990 Act, licensed under that section is taken to be the subject of a
licence in force under section 116 of this Act and this Act applies
accordingly.
6 Medical superintendents and deputy medical superintendents
(1) A person appointed as a medical superintendent or a deputy medical
superintendent of a hospital under the 1990 Act immediately before the
repeal of the provision of that Act under which the person was
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appointed is taken to be appointed under the corresponding provision of
this Act as the medical superintendent or deputy medical superintendent
of the mental health facility concerned and this Act applies accordingly.
(2) The term of appointment of any such person as a medical
superintendent or deputy medical superintendent ends on the day on
which the term under the 1990 Act would have ended, subject to any
re-appointment of the person under this Act.
7 Directors and deputy directors of health care agencies
A person appointed as the director or a deputy director of a heath care
agency under the 1990 Act immediately before the repeal of the
provision of that Act under which the person was appointed is taken to
be appointed under this Act as the director of community treatment or
deputy director of community treatment of the mental health facility
concerned and this Act applies accordingly.
8 Official visitors
(1) A person appointed as an official visitor under section 226 or 228 of the
1990 Act immediately before the repeal of section 228 of that Act is
taken to have been appointed under section 128 or 129, respectively, of
this Act and this Act applies accordingly.
(2) The term of appointment of any such person as an official visitor ends
on the day on which the term under the 1990 Act would have ended,
subject to any re-appointment of the person under this Act.
9 Accredited persons
(1) A person appointed as an accredited person under section 287A of the
1990 Act immediately before the repeal of that section is taken to have
been appointed under section 136 of this Act and this Act applies
accordingly.
(2) The term of appointment of any such person as an accredited person
ends on the day on which the term under the 1990 Act would have
ended, subject to any re-appointment of the person under this Act.
10 Mental Health Review Tribunal
(1) A person appointed as a member of the Tribunal under the 1990 Act
immediately before the repeal of section 252 of that Act is taken to have
been appointed under this Act and this Act applies accordingly.
(2) The term of appointment of any such person as a member of the
Tribunal ends on the day on which the term under the 1990 Act would
have ended, subject to any re-appointment of the person under this Act.
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(3) Any decision, determination, recommendation or finding or order made
or other thing done by the Tribunal under the 1990 Act and having any
force or effect immediately before the repeal of section 252 of that Act
is taken to have been made or done by the Tribunal under the
corresponding provision of this Act or the Mental Health (Criminal
Procedure) Act 1990.
11 Orders by prescribed authority
An order made by a prescribed authority under the 1990 Act, and in
force under that Act immediately before the commencement of this
clause, is taken to have been made under the Mental Health (Criminal
Procedure) Act 1990 (as amended by this Act) and that Act applies
accordingly.
12 Existing patients and persons detained in mental health facilities
(1) A person who was a temporary patient or a continued treatment patient
under the 1990 Act immediately before the commencement of this
subclause is taken to be an involuntary patient detained under this Act
and this Act applies accordingly.
(2) A person who was detained in a hospital as a mentally ill person or a
mentally disordered person under the 1990 Act immediately before the
commencement of this subclause is taken to be so detained under this
Act and this Act applies accordingly.
(3) A person who was a forensic patient under the 1990 Act immediately
before the commencement of this subclause is taken to be a forensic
patient within the meaning of this Act and this Act and the Mental
Health (Criminal Procedure) Act 1990 (as amended by this Act) apply
accordingly.
(4) For the purposes of the application of this Act or the Mental Health
(Criminal Procedure) Act 1990 to a patient or person referred to in this
clause, the person is taken to have been detained or classified as a
patient under this Act or that Act on the day the person was so detained
or classified under the 1990 Act.
13 Absence from hospitals
(1) A grant of leave of absence from a hospital (including permission to be
absent from hospital) for a patient in force under a provision of the 1990
Act immediately before the commencement of this clause continues in
force as if it were granted under the corresponding provision of this Act
or, in the case of a forensic patient, the Mental Health (Criminal
Procedure) Act 1990 (as amended by this Act) and this Act and that Act
apply accordingly.
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(2) A patient who was absent without leave from a hospital, or in breach of
a condition of any such leave, immediately before the commencement
of this clause may be apprehended and dealt with under this Act or the
Mental Health (Criminal Procedure) Act 1990 as if the person were
absent without leave from a mental health facility or in breach of a
condition of leave granted under this Act or that Act.
14 Existing treatment orders
(1) A medical practitioner may, for the purposes of administering electro
convulsive therapy, rely on a consent or certificate obtained, or a
decision made by the Tribunal, in accordance with Part 1 of Chapter 7
of the 1990 Act and any such consent, certificate or decision is taken to
have been obtained or made under this Act.
(2) A consent given under section 201 of the 1990 Act, and in force
immediately before the commencement of this clause, continues to have
effect for the purposes of carrying out the surgical operation concerned.
(3) A medical practitioner may, for the purposes of carrying out special
medical treatment on a patient, rely on a consent obtained from or a
decision made by the Tribunal or an authorised officer, in accordance
with Part 2 of Chapter 7 of the 1990 Act and any such consent or
decision is taken to have been obtained or made under this Act.
(4) For the purposes of subclause (3), the consent of an authorised officer
is taken to be the consent of the Director-General.
15 Pending proceedings
Any proceedings pending, immediately before the commencement of
this clause, under the 1990 Act before any court, the Tribunal, a
Magistrate or any other person:
(a) are taken to be proceedings pending before the court, the
Tribunal, Magistrate or other person before which or whom those
proceedings could be brought under this Act or the Mental Health
(Criminal Procedure) Act 1990 if those proceedings had been
commenced on or after that commencement, and
(b) are to be continued before and disposed of by the court, Tribunal,
Magistrate or person accordingly.
16 Supreme Court
(1) A person ordered to be brought before the Court for examination under
section 285 of the 1990 Act, who is not examined before the repeal of
that section, is to be examined and dealt with under section 166 of this
Act.
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(2) A person appointed as an assessor under section 283 of the 1990 Act
immediately before the repeal of that section is taken to have been
appointed under section 165 of this Act and this Act applies
accordingly.
17 Interstate matters
Anything done or omitted under Chapter 10A of the 1990 Act, and
having effect immediately before the repeal of that Chapter, is taken to
have been done or omitted under the corresponding provision of
Chapter 8 of this Act and, subject to that Chapter, has effect
accordingly.
18 Patient accounts and trust funds
The following funds and accounts established under Part 3 of Chapter 8
of the 1990 Act are taken to be established under the corresponding
provisions of the regulations and the regulations apply accordingly:
(a) any Patients Trust Fund,
(b) any Patients Amenities Account,
(c) a fund constituted under section 248 of the 1990 Act,
(d) the Interest Account.
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Schedule 7 Amendment of other Acts
Schedule 7 Amendment of other Acts
(Section 199)
7.1 Civil Liability Act 2002 No 22
Section 54D Damages supervision orders
Omit "Mental Health Act 1990" from section 54D (4).
Insert instead "Mental Health Act 2007".
7.2 Civil Procedure Act 2005 No 28
Section 3 Definitions
Omit paragraph (b) from the definition of person under legal incapacity in
section 3 (1).
Insert instead:
(b) an involuntary patient or a forensic patient within the
meaning of the Mental Health Act 2007, and
7.3 Disability Services Act 1993 No 3
Section 5 Target group
Omit section 5 (2). Insert instead:
(2) For the purposes of this Act, the following persons (within the
meaning of the Mental Health Act 2007) are in the target group,
but only if the services provided for their care are not inconsistent
with the objects and relevant requirements of that Act:
(a) an involuntary patient or a forensic patient,
(b) a person subject to a community treatment order,
(c) a person under detention in a mental health facility.
7.4 Guardianship Act 1987 No 257
[1] Section 3 Definitions
Omit paragraph (a) (iii) from the definition of exempt premises in
section 3 (1).
Insert instead:
(iii) a mental health facility within the meaning of the
Mental Health Act 2007,
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[2] Section 3 (2) (c)
Omit the paragraph. Insert instead:
(c) who is a mentally ill person within the meaning of the
Mental Health Act 2007, or
[3] Section 3C Relationship with Mental Health Act 2007
Omit "Mental Health Act 1990" wherever occurring.
Insert instead "Mental Health Act 2007".
[4] Sections 25K (2) and 34 (2)
Omit "Mental Health Act 1990" wherever occurring.
Insert instead "Mental Health Act 2007".
7.5 Interpretation Act 1987 No 15
Section 21 Meanings of commonly used words and expressions
Omit the definition of mentally incapacitated person from section 21 (1).
Insert instead:
mentally incapacitated person means a person who is an
involuntary patient or a forensic patient within the meaning of the
Mental Health Act 2007, or a protected person within the
meaning of the Protected Estates Act 1983.
7.6 Law Enforcement (Powers and Responsibilities) Act 2002
No 103
Schedule 1 Acts not affected by this Act
Omit "Mental Health Act 1990 No 9".
Insert instead "Mental Health Act 2007".
7.7 Mental Health (Criminal Procedure) Act 1990 No 10
[1] Section 3 Definitions
Omit the definitions of forensic patient, hospital and Mental Health Review
Tribunal from section 3 (1).
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Insert instead in alphabetical order:
forensic patient means a person:
(a) who is detained in a mental health facility, correctional
centre or other place, or released from custody subject to
conditions, pursuant to an order:
(i) under section 10 (3) (c), 14, 17 (3), 25, 27 or 39, or
(ii) under section 7 (4) of the Criminal Appeal Act 1912
(including that subsection as applied by section
5AA (5) of that Act), or
(b) who is granted bail pursuant to section 14 (b) (ii) or 17 (2),
or
(c) who is detained in a mental health facility pending the
person's committal for trial for an offence or pending the
person's trial for an offence, or
(d) who has been transferred to a mental health facility while
serving a sentence of imprisonment and who has not been
classified by the Tribunal as an involuntary patient.
involuntary patient has the same meaning as it has in the Mental
Health Act 2007.
mental health facility has the same meaning as it has in the
Mental Health Act 2007.
mentally ill person has the same meaning as it has in the Mental
Health Act 2007.
prescribed authority--see section 40.
Tribunal means the Mental Health Review Tribunal constituted
under the Mental Health Act 2007.
[2] Section 14 Person found unfit to be tried
Omit "Mental Health Review Tribunal" from section 14 (a).
Insert instead "Tribunal".
[3] Section 16 Functions of Tribunal on referral after inquiry
Omit "Mental Health Review Tribunal" from section 16 (1).
Insert instead "Tribunal".
[4] Section 16 (2) (b)
Omit "hospital" wherever occurring. Insert instead "mental health facility".
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[5] Section 17 Orders Court may make following determination of Tribunal
that person will be fit to plead within 12 months
Omit "Mental Health Review Tribunal" wherever occurring in section 17 (1)
and (4).
Insert instead "Tribunal".
[6] Section 17 (3)
Omit "hospital" wherever occurring. Insert instead "mental health facility".
[7] Section 19 Court to hold special hearing after advice received from
Director of Public Prosecutions
Omit "Mental Health Review Tribunal under section 16 (3) of this Act or
under section 80 (5) or 82 (3A) of the Mental Health Act 1990" from
section 19 (1).
Insert instead "Tribunal under section 16 (3), 42 (4) or 44 (2)".
[8] Section 24 Consequences of nomination of limiting term
Omit "Mental Health Review Tribunal" from section 24 (1) (a).
Insert instead "Tribunal".
[9] Section 24 (2) (b)
Omit "hospital" wherever occurring. Insert instead "mental health facility".
[10] Section 27 Orders Court may make following determination of Tribunal
after limiting term is imposed
Omit "Mental Health Review Tribunal". Insert instead "Tribunal".
[11] Section 27 (a) and (b)
Omit "hospital" wherever occurring. Insert instead "mental health facility".
[12] Section 29 Action to be taken on notification that person is fit to be tried
Omit "Mental Health Review Tribunal" wherever occurring in section 29 (1)
and (2).
Insert instead "Tribunal".
[13] Section 30 Procedure after completion of further inquiry
Omit "hospital" wherever occurring in section 30 (2) (a) and (b).
Insert instead "mental health facility".
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[14] Section 32 Persons suffering from mental illness or condition
Omit "hospital" from section 32 (1) (a) (iii).
Insert instead "mental health facility".
[15] Section 32 (1)
Omit "within the meaning of Chapter 3 of the Mental Health Act 1990".
[16] Section 32 (3B) (b) and (3C) (b)
Omit "authorised justice within the meaning of the Search Warrants Act 1985"
wherever occurring.
Insert instead "authorised officer within the meaning of the Criminal
Procedure Act 1986".
[17] Section 33 Mentally ill persons
Omit "within the meaning of Chapter 3 of the Mental Health Act 1990"
wherever occurring in section 33 (1) and (1D).
[18] Section 33 (1) (a) and (b), (1D) (a) and (b) and (3)
Omit "hospital" wherever occurring. Insert instead "mental health facility".
[19] Section 33 (1A) and (1B)
Omit "Mental Health Act 1990" wherever occurring.
Insert instead "Mental Health Act 2007".
[20] Section 33 (1B)
Omit "sections 131 (2), 132 and 133 (1) (a)".
Insert instead "section 51 (1) and (2)".
[21] Section 33 (1C)
Omit "Chief Health Officer" wherever occurring.
Insert instead "Director-General of the Department of Health".
[22] Section 35 Transfer from correctional centre or detention centre
Omit "hospital under section 97 or 98 of the Mental Health Act 1990" from
section 35 (2).
Insert instead "mental health facility under section 51".
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[23] Section 35 (2) (b)
Omit "Chief Health Officer under section 97 or 98 of the Mental Health Act
1990".
Insert instead "Director-General of the Department of Health under section
51".
[24] Section 35 (2) (c)
Omit "section 97 or 98 of the Mental Health Act 1990".
Insert instead "section 51".
[25] Section 37 Explanation to jury
Omit "Mental Health Review Tribunal constituted under the Mental Health
Act 1990" from section 37 (a).
Insert instead "Tribunal".
[26] Section 37 (b)
Omit "that Tribunal with respect to forensic patients within the meaning of
that Act, including a reference to the requirements of that Act".
Insert instead "the Tribunal with respect to forensic patients, including a
reference to the requirements of this Act".
[27] Section 39 Effect of finding and declaration of mental illness
Omit "Mental Health Review Tribunal" from section 39 (3).
Insert instead "Tribunal".
[28] Part 5
Insert after Part 4:
Part 5 Forensic patients
Division 1 Preliminary
40 Definitions
In this Part:
authorised medical officer has the same meaning as it has in the
Mental Health Act 2007.
correctional centre includes a detention centre.
Director-General means the Director-General of the Department
of Health.
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prescribed authority, in relation to the exercise of a function,
means the authority prescribed by the regulations for the
purposes of the function concerned.
Division 2 Review and release of forensic patients
41 Initial review by Tribunal of cases of persons found not guilty by
reason of mental illness
(1) The Tribunal must review a person's case as soon as practicable
after the person is found not guilty of an offence by reason of
mental illness, after a special hearing, a trial or on an appeal, and
ordered to be detained in a mental health facility or other place or
to be released from custody subject to conditions.
Note. Relevant orders may be made under this Act (including sections
25 and 39) and under section 7 (4) of the Criminal Appeal Act 1912
(including that subsection as applied by section 5AA (5) of that Act).
(2) The Tribunal must, after reviewing a person's case, make a
recommendation to the Minister:
(a) as to the person's care, detention or treatment, or
(b) if the Tribunal is satisfied, on the evidence available to it,
that the safety of the person or any member of the public
will not be seriously endangered by the person's release, as
to the person's release (either unconditionally or subject to
conditions).
(3) On a recommendation being made under this section for a
person's release, the prescribed authority may, subject to the
regulations, make an order (either unconditionally or subject to
conditions) for the person's release.
42 Initial review by Tribunal of person found unfit to be tried after
order for detention
(1) The Tribunal must review a person's case as soon as practicable
after:
(a) the person is granted bail under section 17 (2) or an order
is made under section 17 (3) in relation to the person, or
(b) an order is made under section 27 in relation to the person.
(2) On a review, the Tribunal must determine whether, in its opinion:
(a) the person has become fit to be tried for an offence, and
(b) the safety of any person or any member of the public will
be seriously endangered by the person's release.
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(3) If the Tribunal is of the opinion that the person has not become fit
to be tried for an offence and is satisfied that the safety of any
person or any member of the public will not be seriously
endangered by the person's release, it must make a
recommendation to the Minister for the person's release.
(4) The Tribunal must notify the court that made the finding of
unfitness and the Director of Public Prosecutions if, on a review,
it is of the opinion that the person:
(a) has become fit to be tried for an offence, or
(b) has not become fit to be tried for an offence and will not,
during the period of 12 months after the finding of
unfitness by the court, become fit to be tried for the
offence.
43 Further reviews by Tribunal of forensic patients
(1) The Tribunal must review the case of each forensic patient every
6 months but may review the case of any forensic patient at any
time.
(2) The Tribunal must review the case of a forensic patient if
requested to do so by the Minister for Health, the Attorney
General, the Minister for Justice, the Director-General or the
medical superintendent of the mental health facility in which the
patient is detained.
(3) For the purposes of a review, the Tribunal may communicate
with any persons, take any action and make any
recommendations it thinks fit.
(4) On a review, the Tribunal may make a recommendation to the
Minister as to one or more of the following:
(a) if the Tribunal is satisfied, on the evidence available to it,
that the safety of the person or any member of the public
will not be seriously endangered by the person's release, as
to the patient's release (either conditionally or
unconditionally),
(b) as to the patient's continued detention, care or treatment in
a mental health facility, correctional centre or other place.
(5) The Tribunal may not make a recommendation for the release of
a patient if:
(a) the patient is a person who has been remanded in custody
under section 10 (3) (c) pending an inquiry into the
question of the person's unfitness to be tried for an
offence, or
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(b) the patient has been transferred to a mental health facility
while serving a sentence of imprisonment and has not
served the term of the sentence or, if a non-parole period
has been set in relation to the sentence, the non-parole
period.
44 Reviews of persons found unfit to be tried
(1) On reviewing under section 43 the case of a forensic patient who
is subject to a finding that the person is unfit to be tried for an
offence, the Tribunal may make a recommendation as to the
fitness of the patient to be tried for an offence.
(2) The Tribunal must notify the court that made the finding of
unfitness and the Director of Public Prosecutions if, on a review,
it is of the opinion that the person:
(a) has become fit to be tried for an offence, or
(b) has not become fit to be tried for an offence and will not,
during the period of 12 months after the finding of
unfitness by the court, become fit to be tried for the
offence.
45 Release of patients after being found unfit to be tried or on further
review
(1) On receiving a recommendation under section 42 or 43 for the
release of a person, the Minister must notify the Attorney General
of the recommendation and at the same time furnish a copy of the
notification to the Director of Public Prosecutions.
(2) The Director of Public Prosecutions must, within 21 days after
the date of any such notification, indicate to the Attorney General
whether the Director intends to proceed with criminal charges
against the person concerned.
(3) The prescribed authority must not order the person's release if,
within 30 days after being notified of the recommendation, the
Attorney General indicates an objection to the person's release on
the ground that:
(a) the person has served insufficient time in custody or under
detention, or
(b) the Attorney General or the Director of Public
Prosecutions intends to proceed with criminal charges
against the person.
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(4) The prescribed authority may, subject to the regulations, make an
order (either unconditionally or subject to conditions) for the
person's release if the Attorney General fails to indicate any such
objection within that period.
(5) Before ordering the person's release, the prescribed authority
must inform the Minister for Police of the date of the person's
release.
46 Review of persons transferred from correctional centres
(1) The Tribunal must review the case of a person transferred under
Division 3 to a mental health facility from a correctional centre
as soon as practicable after the person is so transferred and must
make a recommendation to the prescribed authority as to the
person's continued detention, care or treatment in a mental health
facility.
(2) On a review, the Tribunal is to determine whether the person is a
mentally ill person who should continue to be detained in a
mental health facility.
(3) In addition to any review required under subsection (1), the
Tribunal, or any member of the Tribunal on behalf of the
Tribunal, must informally review the cases of the following
persons each month in order to determine whether their pending
legal proceedings are delayed:
(a) a person referred to in subsection (1) whose trial for an
offence has not been completed,
(b) a person referred to in subsection (1) who is subject to a
finding that the person is unfit to be tried for an offence and
a person in respect of whom a special hearing under
section 19 has not been conducted.
(4) If the Tribunal determines on an informal review that there is
such a delay, the Tribunal may take such action as it thinks fit.
(5) On an informal review, the Tribunal may make a
recommendation as to the person's continued detention, care or
treatment.
(6) If a person is transferred under Division 3 from a correctional
centre to a mental health facility, the Tribunal may, at any time,
make a recommendation to the prescribed authority that the
person be transferred to a correctional centre.
(7) For the purposes of a review under this section, the Tribunal may
communicate with such persons, take such action and make such
recommendations as the Tribunal thinks fit.
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47 Community treatment orders
(1) On a review under this Division, the Tribunal may make a
community treatment order in relation to a patient recommended
to be released conditionally or to be transferred to a correctional
centre or other place.
(2) Any such community treatment order has effect only if it is
confirmed in writing by the prescribed authority.
(3) Part 3 of Chapter 3 of the Mental Health Act 2007 applies to the
making of any such order, subject to any modifications
prescribed by the regulations under that Act or under this Act.
48 Prescribed authority may make orders as to detention, care or
treatment
On a recommendation being made by the Tribunal (other than a
recommendation as to the release of a person) under this Part as
to the detention, care or treatment of a person, the prescribed
authority may, subject to the regulations, make an order for the
person's detention, care or treatment in a mental health facility,
correctional centre or other place specified in the order and in the
manner specified in the order.
49 Transfer of patients
(1) On a review under this Part, the Tribunal may make a
recommendation to the Minister as to the transfer of the patient to
a mental health facility, correctional centre or other place.
(2) On a recommendation being made under this Part for the transfer
of a person, the prescribed authority may, subject to the
regulations, make an order for the transfer of the patient to a
mental health facility, correctional centre or other place.
50 Recommendations not required for forensic patients classified as
involuntary patients
The Tribunal is not required to make any recommendation that it
would otherwise be required to make on a review of a forensic
patient if it classifies the patient as an involuntary patient under
section 67.
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Division 3 Transfers to and from correctional centres
51 Transfer from correctional centre by Director-General
(1) The Director-General may, by order in writing, order that a
person imprisoned in a correctional centre be transferred to a
mental health facility.
(2) The Director-General may make an order under subsection (1) on
the basis of 2 certificates about the person's condition issued by
2 medical practitioners, one of whom is a psychiatrist. The
certificate is to be in the form set out in Schedule 2.
(3) A transfer order may be made without the person's consent if it
appears to the Director-General, on the basis of the certificates,
that the person is a mentally ill person.
(4) A transfer order may be made with the person's consent if it
appears to the Director-General, on the basis of the certificates,
that the person is suffering from a mental condition for which
treatment is available in a mental health facility.
(5) Subsection (4) does not apply to a person who is a mentally ill
person or who has a developmental disability of mind.
(6) The Director-General may revoke an order made under this
section.
(7) The Director-General must notify the Tribunal in writing of any
transfer order.
52 Transfer back to correctional centre
(1) This section applies to a forensic patient transferred to a mental
health facility under any provision of this Division.
(2) The patient must be transferred back to the correctional centre
within 7 days unless the Director-General, or a person authorised
by the Director-General for the purposes of this section, is of the
opinion that:
(a) the patient is a mentally ill person or is suffering from a
mental condition for which treatment is available in a
mental health facility, and
(b) other care of an appropriate kind would not be available to
the person in the correctional centre.
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(3) The patient may be transferred back to the correctional centre at
any time if the Director-General or a person authorised by the
Director-General is of the opinion that:
(a) the patient has ceased to be a mentally ill person or to be
suffering from a mental condition for which treatment is
available in a mental health facility, or
(b) other care of an appropriate kind would be reasonably
available to the patient in a correctional centre.
(4) Nothing in this section affects the powers of the Tribunal to
receive and make recommendations in respect of a patient
transferred to a mental health facility from a correctional centre.
53 Requests for transfer to correctional centre
(1) A forensic patient who is detained in a mental health facility may,
at any time, request the Tribunal to make a recommendation to a
prescribed authority for an order that the patient be transferred to
a correctional centre.
(2) The Tribunal, after considering any such request, may make the
recommendation requested by the forensic patient or may refuse
to make that recommendation.
(3) The Tribunal must make the recommendation if it is satisfied that
the person is not a mentally ill person.
Note. Section 49 empowers the prescribed authority to make the
transfer order.
54 Review by Tribunal of patients awaiting transfer to mental health
facility
(1) The Tribunal must informally review the case of a person who is
subject to an order for transfer to a mental health facility under
this Division but who is not transferred within the period
prescribed by the regulations.
(2) The Tribunal must carry out such a review each month until the
person is transferred to a mental health facility or the Tribunal
recommends to the Director-General that the transfer not take
place.
(3) On a review, the Tribunal may make a recommendation to the
prescribed authority as to the person's detention, care or
treatment in a mental health facility or other place and in the
manner specified in the order.
Note. Section 48 empowers the prescribed authority to make an order
giving effect to a recommendation of the Tribunal.
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(4) For the purposes of a review under this section, the Tribunal may
communicate with such persons, take such action and make such
recommendations as the Tribunal thinks fit.
Division 4 Leave of absence for forensic patients
55 Leave of absence for forensic patients
(1) The Director-General may allow a forensic patient to be absent
from a mental health facility for the period, and subject to the
conditions (if any), that the Director-General thinks fit.
(2) The Director-General must not grant leave of absence if the
Tribunal has previously, under similar circumstances, refused to
recommend that leave of absence in similar terms be granted to
the patient.
(3) A forensic patient may apply to the medical superintendent for
special leave of absence for any of the following purposes:
(a) to visit a sick or dying relative,
(b) to attend the funeral of a near relative,
(c) to deal with circumstances constituting, in the opinion of
the medical superintendent and the Director-General, an
emergency.
(4) On receiving an application for special leave of absence, the
medical superintendent may recommend to the Director-General
that leave be granted, if the medical superintendent is of the
opinion that, having regard to the leave proposed, the safety of
the patient or any member of the public will not be seriously
endangered if the special leave of absence is granted.
(5) The Director-General may approve the recommendation and
grant special leave of absence to the forensic patient for the
period and subject to the conditions (if any) that the
Director-General thinks fit.
56 Leave of absence for medical reasons
The Director-General may allow a forensic patient to be absent
from a mental health facility for the period, and subject to the
conditions (if any), that the Director-General thinks fit for the
purpose of undergoing medical investigation or treatment.
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57 Leave of absence on review of case
(1) The Tribunal may, as a consequence of the review of the case of
a forensic patient, and if of the opinion that it will benefit the
health of the patient to do so, make a recommendation to the
prescribed authority that the patient be allowed to be absent from
a mental health facility for such period and subject to such terms
and conditions, if any, as the Tribunal thinks fit.
(2) If any such recommendation is made in respect of a forensic
patient, the prescribed authority may, subject to the regulations,
make an order allowing the patient to be absent from a mental
health facility for such period and subject to such terms and
conditions, if any, as are specified in the order.
(3) The Tribunal may not make a recommendation unless it is
satisfied that, having regard to the leave proposed to be granted,
the safety of the patient or any member of the public will not be
seriously endangered if the leave of absence is granted.
Division 5 Breaches of orders and escapes by forensic
patients
58 Breach of orders for release
(1) The prescribed authority may make an order under this section in
respect of a person if it appears to the prescribed authority that:
(a) the person has breached a condition of an order for the
person's conditional release under this Part, or
(b) the person has committed a breach of an order releasing the
person from custody under section 39, or
(c) the person has breached a condition of leave of absence
granted under this Part, or
(d) the person has been granted conditional release or leave of
absence under this Part and has suffered a deterioration of
mental condition and become a serious danger to himself
or herself or to any member of the public because of his or
her mental condition.
(2) The prescribed authority may order the patient's apprehension
and detention, care or treatment in a mental health facility,
correctional centre or other place, and in the manner, specified in
the order.
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(3) A police officer to whose notice a detention order is brought
must:
(a) apprehend and take or assist in taking the person to the
mental health facility, correctional centre or other place
specified in the order, or
(b) cause or make arrangements for some other police officer
to do so.
(4) A police officer may enter premises to apprehend a person under
this section, and may apprehend any such person, without a
warrant and may exercise any of the powers conferred on a
person who is authorised under section 81 of the Mental Health
Act 2007 to take a person to a mental health facility.
59 Apprehended person may seek reconsideration by Tribunal
(1) A person who is apprehended under section 58 may request the
Tribunal to investigate the evidence on which the order for the
person's apprehension was made and may adduce other evidence
for the consideration of the Tribunal.
(2) On a reconsideration under this section, the Tribunal may make
such recommendations as it thinks fit concerning the person to
the prescribed authority.
60 Retaking of escapees
(1) A forensic patient who escapes from a mental health facility may
be retaken at any time by any of the following persons:
(a) the medical superintendent of the mental health facility or
any other suitably qualified person employed in the mental
health facility who is authorised to do so by the medical
superintendent,
(b) a police officer,
(c) a person authorised by the Director-General or the medical
superintendent,
(d) a person assisting a person referred to in paragraph (a), (b)
or (c).
(2) On being retaken, the patient is to be conveyed to and detained in
the mental health facility from which the patient escaped.
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Schedule 7 Amendment of other Acts
61 Aiding or permitting escape
(1) A person must not release or attempt to release a person who is
being conveyed to or detained in a mental health facility under
this Act.
(2) A medical superintendent or any other person employed in a
mental health facility must not:
(a) through wilful neglect or connivance, permit any person
detained in the facility under this Act to escape from the
facility, or
(b) abet or connive at the escape of any such person from a
mental health facility.
Maximum penalty:
(a) on conviction on indictment--imprisonment for 3 years,
or
(b) on summary conviction--imprisonment for 1 year or 10
penalty units, or both.
62 Issue of warrants for apprehension of persons outside State
A Magistrate or an authorised officer within the meaning of the
Criminal Procedure Act 1986 may issue a warrant for the
apprehension of a person if a credible person, on oath before the
Magistrate or officer, shows reasonable cause to suspect that the
person is a forensic patient:
(a) who has escaped from a mental health facility and is
outside the State, or
(b) is the subject of an order under section 58.
Division 6 Termination of classification as forensic
patient
63 Termination of classification as forensic patient on unconditional
release
(1) A forensic patient ceases to be a forensic patient if any of the
following events occurs:
(a) the person is released unconditionally in accordance with
an order under this Part of the prescribed authority,
(b) if the person has been released in accordance with such an
order subject to conditions--the time specified in the
conditions as being a time during which those conditions,
or any of them, are to be complied with expires.
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(2) This section applies in addition to sections 64-67.
64 Additional circumstances for termination of classification as
forensic patient
(1) A person who has been detained in a mental health facility,
correctional centre or other place following a special hearing
under section 19 ceases to be a forensic patient if any of the
following events occurs:
(a) the limiting term (where that term is less than life) imposed
in respect of the person expires,
(b) the person is classified as an involuntary patient.
(2) A person who has been found by a court to be unfit to be tried for
an offence ceases to be a forensic patient if the Tribunal notifies
the court and the Director of Public Prosecutions that it is of the
opinion that the person has become fit to be tried for an offence
(whether or not a special hearing has been conducted in respect
of the offence) and:
(a) a finding is made, at a further inquiry by the court as to the
person's unfitness, that the person is fit to be tried for the
offence, or
(b) the Director of Public Prosecutions advises the Minister
for Health that the person will not be further proceeded
against in respect of the offence and the person is released
from detention pursuant to section 29.
65 Termination of classification of forensic patient serving sentence
of imprisonment
A person who became a forensic patient because the person was
transferred to a mental health facility from a correctional centre
under this Part ceases to be a forensic patient if any of the
following events occurs:
(a) the person is transferred to a correctional centre from the
mental health facility,
(b) the person's sentence of imprisonment expires,
(c) if the person's non-parole period has expired--the person
is released unconditionally by order of the prescribed
authority following a recommendation of the Tribunal,
(d) if the person has been released in accordance with such an
order subject to conditions--the time specified in the
conditions as being a time during which those conditions,
or any of them, are to be complied with expires.
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66 Termination of classification as forensic patient of person on
remand
A person on remand who is a forensic patient because the person
has been transferred to a mental health facility ceases to be a
forensic patient if any of the following events occurs:
(a) the person is released (which the Minister for Health is
hereby authorised to order or to otherwise ensure)
following advice by the Director of Public Prosecutions
that the person will not be further proceeded against in
respect of the offence in relation to which the person has
been remanded or is otherwise lawfully released from the
mental health facility,
(b) the person is transferred to a correctional centre.
67 Classification as involuntary patient
(1) The Tribunal may, on a review of a forensic patient under this
Act, classify the patient as an involuntary patient if the patient
would, by virtue of the operation of this Act or any other law,
cease to be a forensic patient within 6 months after the date of the
review and the patient:
(a) has been detained in a mental health facility, correctional
centre or other place following a special hearing under
section 19, or
(b) has been transferred to a mental health facility from a
correctional centre while serving a sentence of
imprisonment.
(2) On classification as an involuntary patient under this section, the
person ceases to be a forensic patient.
68 Release on ceasing to be a forensic patient
A person who ceases to be a forensic patient (other than a person
classified as an involuntary patient under section 67 (2)) must be
discharged from the mental health facility in which the person is
detained if the person ceases to be a forensic patient.
Division 7 General
69 Security conditions for forensic patients
(1) A forensic patient who is detained in a mental health facility,
correctional centre or other place or absent in accordance with
this Part is to be subject to any security conditions that the
Director-General considers necessary.
Page 136
Mental Health Bill 2007
Amendment of other Acts Schedule 7
(2) Despite subsection (1), a forensic patient detained in any part of
the Long Bay Prison Hospital that is a mental health facility is to
be subject to any security conditions that the Director-General of
the Department of Corrective Services considers necessary.
(3) For the purposes of subsection (2):
(a) any part of the Long Bay Prison Hospital that is a mental
health facility is taken to be a correctional centre within the
meaning of the Crimes (Administration of Sentences) Act
1999, and
(b) a forensic patient who is detained in that facility is taken to
be an inmate within the meaning of that Act and that Act
and the regulations made under that Act, apply to any such
patient, subject to any modifications and to the extent
specified by the regulations.
70 Transport of forensic patients
(1) A forensic patient may be transported to or from a mental health
facility, correctional centre or other place if it is necessary or
convenient to do so for the administration of this Act or the
Mental Health Act 2007. Any such transport is to be subject to
any security conditions that the Director-General considers
necessary.
(2) The Director-General may, by order in writing, order the transfer
of a forensic patient detained in a mental health facility to another
mental health facility.
(3) The order is sufficient authority for the transfer.
(4) A forensic patient may be taken to or from a mental health facility
by a person referred to in section 81 (1) of the Mental Health Act
2007 and any other person prescribed by the regulations.
(5) Section 81 of that Act applies to or in respect of the transport of
a forensic patient to or from a mental health facility in the same
way as it applies to or in respect of the transport of a person under
that Act.
71 Other Ministers may make transfer orders as prescribed authority
An order that may be made under this Part by a prescribed
authority for the transfer of a person between a correctional
centre and a mental health facility or other place or between a
mental health facility and a place other than a correctional centre
may, in the absence or unavailability, for any cause, of the
prescribed authority be made by any Minister of the Crown.
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Schedule 7 Amendment of other Acts
72 Appeals against decisions of Director-General
(1) A forensic patient may appeal to the Tribunal against a failure or
refusal by the Director-General to grant the patient leave of
absence under this Part.
(2) An appeal may be made orally or in writing and is to be made in
accordance with the regulations. An oral appeal is to be recorded
in accordance with the regulations.
(3) The Director-General must provide the Tribunal with a report
about the patient, including the Director-General's reasons for
refusing or failing to grant leave of absence.
(4) The Tribunal, for the purpose of determining an appeal, has and
may exercise the functions of the Director-General with respect
to the granting of leave and may make an order accordingly.
(5) In addition, the Tribunal may determine that no further right of
appeal may be exercised under this section before the date on
which the person is next reviewed by the Tribunal under this Act,
if it thinks it appropriate to do so.
73 Planning for release and leave
(1) The authorised medical officer of a mental health facility in
which a forensic patient is detained must, if the person is to be
released or granted leave under this Part, take all reasonably
practicable steps to ensure that the person and any primary carer
of the person are consulted in relation to planning the person's
release and leave and any subsequent treatment or other action
considered in relation to the person.
(2) In planning the release of any such person and any subsequent
treatment or other action considered in relation to any such
person, the authorised medical officer must take all reasonably
practicable steps to consult with agencies involved in providing
relevant services to the person, any primary carer of the person
and any dependent children or other dependants of the person.
(3) The authorised medical officer must take all reasonably
practicable steps to provide a person who is released or given
leave of absence from the mental health facility, and the person's
primary carer, with appropriate information as to follow-up care.
(4) In this section, primary carer has the same meaning as it has in
the Mental Health Act 2007.
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Amendment of other Acts Schedule 7
74 Effect of detention in mental health facility on sentence and parole
(1) Any period of detention of a person in a mental health facility or
other place, following a transfer under this Part from a
correctional centre, is to be treated as if it were a period of
imprisonment in a correctional centre for the purposes of the
person's sentence and parole.
(2) For the purposes of Part 6 of the Crimes (Administration of
Sentences) Act 1999, a forensic patient who is detained in a
mental health facility is taken to be serving a full-time sentence
of detention in a correctional centre.
Note. Part 6 of that Act contains provisions permitting the grant of parole
to certain persons serving full-time sentences of detention.
75 Orders under this Part
(1) An order under this Part must be in writing.
(2) An order under this Part has effect according to its tenor.
76 Person who ceases to be a forensic patient may be detained as an
involuntary patient
Nothing in this Part prevents the application of Chapter 3 of the
Mental Health Act 2007 to a person who ceases to be a forensic
patient or a person from remaining in a mental health facility as
a voluntary patient.
[29] New Part 6
Renumber existing Part 5 (Miscellaneous) as Part 6.
[30] New sections 77 and 78
Renumber existing sections 40 and 41 as sections 77 and 78, respectively.
[31] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1A (1):
Mental Health Act 2007
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Mental Health Bill 2007
Schedule 7 Amendment of other Acts
[32] Schedule 2
Insert after Schedule 1:
Schedule 2 Medical certificate as to examination
of inmate
(Section 51 (2))
Mental Health (Criminal Procedure) Act 1990
I, [name in full--use block letters] (*Medical Practitioner/Psychiatrist) of do
hereby certify that on the [date] at [state name of correctional centre where
examination took place] separately from any other medical practitioner, I personally
examined [name of inmate in full] and I am of the opinion that *he/she is *a mentally
ill person/suffering from a mental condition for which treatment is available in a
mental health facility.
I have formed this opinion on the following grounds:
(1) Facts indicating *mental illness/mental condition observed by myself.
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
(2) Other relevant information (if any) communicated to me by others (state name
and address of each informant).
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
Made and signed this [date]
[Signature]
*Delete whichever does not apply.
7.8 Protected Estates Act 1983 No 179
[1] Section 4 Definitions
Omit the definitions of hospital and informal patient from section 4 (1).
Insert instead in alphabetical order:
involuntary patient has the same meaning as it has in the Mental
Health Act 2007.
mental health facility has the same meaning as it has in the
Mental Health Act 2007.
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Mental Health Bill 2007
Amendment of other Acts Schedule 7
[2] Section 4 (1), definitions of "MHRT" and "patient"
Omit "Mental Health Act 1990" wherever occurring.
Insert instead "Mental Health Act 2007".
[3] Section 15 Notice that person's capability to manage affairs will be
considered
Omit "A medical superintendent who intends to bring a person before a
Magistrate under section 38 of the Mental Health Act 1990 shall".
Insert instead "An authorised medical officer who intends to bring a person
before a Magistrate for a mental health inquiry under section 34 of the Mental
Health Act 2007 must".
[4] Section 15 (a) and (b)
Omit "section 38" wherever occurring.
Insert instead "section 76".
[5] Section 16 Consideration by Magistrate of capability of patients to
manage affairs
Omit "Where, under section 51 of the Mental Health Act 1990, a Magistrate
directs the detention of a person in a hospital as a temporary patient the
Magistrate shall" from section 16 (1).
Insert instead "If, after holding a mental health inquiry under the Mental
Health Act 2007, a Magistrate directs the detention of a person in a mental
health facility as an involuntary patient the Magistrate must".
[6] Section 18 Consideration of capability of forensic patients to manage
affairs
Omit "section 81, 82 or 86 of the Mental Health Act 1990".
Insert instead "Division 2 of Part 5 or section 54 of the Mental Health
(Criminal Procedure) Act 1990".
[7] Section 18
Omit "hospital". Insert instead "mental health facility".
[8] Section 23 Management of estates of persons who are protected
persons
Omit "hospital". Insert instead "mental health facility".
[9] Section 37 Absence of patient from mental health facility
Omit "hospital". Insert instead "mental health facility".
Page 141
Mental Health Bill 2007
Schedule 7 Amendment of other Acts
[10] Section 40 Receipt to be release
Omit "hospital". Insert instead "mental health facility".
[11] Section 79 Directions by Protective Commissioner as to visitors
Omit "an authorised officer under the Mental Health Act 1990 or any other"
from section 79 (a).
Insert instead "a".
Page 142
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