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1
Mental Health
MENTAL HEALTH BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Policy Objectives of the Bill
The general policy objective of the Bill is to provide for the involuntary
assessment and treatment, and the protection, of persons (whether adults or
minors) who have mental illnesses while at the same time safeguarding
their rights.
In achieving these objectives, the Mental Health Bill will entirely replace
the current Mental Health Act 1974 and will:
· provide a scheme for the involuntary admission, treatment and
protection of people with mental illnesses where this is necessary;
· ensure that the rights of people with mental illness are protected
through independent review of their involuntary status;
· provide for the expert determination of criminal responsibility for
people with a mental illness charged with criminal offences; and
· facilitate the admission and treatment of people with mental
illness serving a sentence of imprisonment or charged with
criminal offences.
In addition, the Mental Health Bill will make an interim amendment to
the current Mental Health Act 1974 to ensure an effective transition between
the current Act and the Mental Health Bill.
Reasons why the proposed legislation is necessary
Mental health service delivery and community expectations about the care
and treatment of the mentally ill have undergone considerable change since
the commencement of the Mental Health Act 1974 in December 1974.
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Mental Health
Criticisms of the current Act are that:
· The current Act does not reflect the current structure and operation of
mental health services and fails to support contemporary treatment
practices. These changes have been brought about in part by the
development of state and national mental health policy, which need to
be reflected in the legislation.
The National Mental Health Strategy and the plan to implement the
strategy were endorsed by all Commonwealth, State and Territory
Health Ministers in 1992 and set the framework for the reform of
mental health services in Australia. A fundamental component of the
policy is the mainstreaming of mental health services with general
health services. This means that, as far as possible, the treatment of
people with a mental illness should be regarded in the same way as
treatment for any other illness. The policy encourages further
development of community services as a viable option to hospital
treatment due to the fact that people with mental illness require a mix
of services over the course of the illness, including in-patient and
community assessment and treatment services.
The Queensland Mental Health Policy in 1993 and the Queensland
Mental Health Plan in 1994 and the Ten Year Mental Health Strategy
for Queensland in 1996 established the framework for reform of
mental health services in Queensland and reflected the key policy
directions established in the National Mental Health Strategy.
· The current Act is not consistent with the National Mental Health
Statement of Rights and Responsibilities, the United Nations Principles
for the Protection of Rights of People with Mental Illness and for the
Improvement of Mental Health Care, and the model mental health
legislation.
The National Mental Health Statement of Rights and Responsibilities
was adopted by all Australian Health Ministers in March 1991. The
statement asserts a commitment to ensure that people with mental
illness and mental health problems have the same rights to dignity and
respect as other Australians. It also points to the need to balance the
rights and responsibilities of all concerned--patients, carers, service
providers and the community in general.
The Australian government made a commitment to implementing the
United Nations Principles for the Protection of Persons with Mental
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Mental Health
Illness and for the Improvement of Mental Health Care ("the UN
Principles") in 1991. The principles provide a standard for the
protection of the rights of people with mental illness, with which
legislative schemes in all Australian states and territories must
conform.
As part of the National Mental Health Plan, all states and territories
undertook to develop legislation consistent with the UN Principles.
The Commonwealth Government, with the cooperation of the
Australian Health Ministers' Advisory Council Working Group on
Mental Health Policy commissioned a group of consultants to draft
model clauses for mental health legislation which incorporates the UN
Principles and the Mental Health Statement of Rights of
Responsibilities. The model mental health legislation was released in
1995.
· A number of state and national inquiries into mental health services
have highlighted the deficiencies in the current Act.
The Human Rights and Equal Opportunities Commission Report on
the Rights of People with Mental Illness in 1993 highlighted the fact
that reforms that brought improvements in the quality of life and
service provision for people in general health services have not been
applied to people being treated for mental illnesses.
The recommendations of the Report of the Commission of Inquiry
into the Psychiatric Unit at Townsville General Hospital (the Carter
Inquiry into Ward 10B) in 1991 drew attention to the specific
inadequacies of the current legislation. The particular areas of concern
were the authorisation of treatment, the use of force, the definition and
practice of seclusion of a patient and the operation of the Official
Visitors Program.
These matters have been considered in the process of the review and are
reflected in the policy that underpins the Mental Health Bill 2000.
Means of achieving objectives
The objectives of the legislation are achieved by providing for the
involuntary detention, admission, assessment, treatment and protection of
people with mental illnesses. The legislation includes independent reviews
of the person's involuntary status, and hearings to approve specific
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Mental Health
regulated treatments. Mechanisms for determining the criminal
responsibility for people with mental illness charged with criminal offences,
and the detention and treatment of people charged with criminal offences are
also provided for.
The significant features of the new system for the treatment and
protection of people with a mental illness and the major changes to the
current system are set out below.
· Specific legislation for involuntary treatment
The Mental Health Bill 2000 provides for the unique features of mental
illness that cannot be catered for in other mainstream legislation. Specific
legislation is necessary to provide for treatment of mental illness when the
person is unable to consent or is unreasonably objecting to treatment.
The proposal to provide for involuntary treatment in the Mental Health
Bill 2000 arose out of the mainstreaming principle of reform that is central
to State and national mental health policy. Voluntary treatment for mental
illness should be regarded in the same way as treatment for any other
illness, with legislative protections in mainstream legislation. Specialist
legislation should only be provided to accommodate those aspects of mental
illness which require special measures not able to be covered within
mainstream legislation; that is, where the person cannot consent or is
unreasonably objecting to treatment. Regulating all aspects of voluntary
treatment in the Mental Health Bill would contravene a fundamental tenet of
the reform process.
The Bill is clear however, that nothing in the legislation prevents a person
from being admitted as a voluntary patient. There are also specific
provisions in the Bill that regulate certain aspects of voluntary treatment (the
administration of electroconvulsive therapy and psychosurgery) and there is
a general offence of ill treatment of a patient that also applies to voluntary
patients. These circumstances were chosen as needing regulation in the
legislation to provide safeguards for the use of forms of treatment that are
the subject of significant community concern.
· Limitation on involuntary treatment only for mental illness
The Bill ensures that a person cannot be involuntarily detained and treated
for anything other than mental illness. A specific definition of mental
illness is provided and reflected in the criteria that must be met before the
person can be detained or treated. A person cannot be detained for
involuntary treatment in a mental health service on the basis of an
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Mental Health
intellectual disability or any other type of mental disorder that is not a mental
illness. It would be clearly inappropriate and ineffective to provide
psychiatric treatment to conditions that are not mental illnesses.
An exception to this is if a person is found of unsound mind in relation to
a criminal offence as a result of their intellectual disability. Such a person
can be detained in a mental health service under the provisions of the Bill
dealing with people with a mental illness who have committed criminal
offences. This is to ensure the safety of the person and the general
community, and because there is currently no other suitable scheme.
· Streamlined involuntary assessment and treatment processes
The Mental Health Bill 2000 provides a more streamlined system of
involuntary assessment and treatment. The Bill makes it more
straightforward for members of the community to assist the person to gain
access to services to be involuntarily assessed for treatment. In contrast, the
current Mental Health Act 1974 sets up barriers to people gaining access to
early involuntary assessment and treatment by only allowing certain people
to make a request for the person to be assessed.
The Bill does not limit the type of person who can make the request for
assessment. This means that any member of the community (a family
member, teacher, friend, counsellor, health professional) can make the
request if they have reason to believe that the person has a mental illness of
a nature or to the extent that warrants involuntary assessment. However
improved safeguards are provided as outlined below.
· Increased safeguards against inappropriate treatment and detention
Increased safeguards are also provided for in the Bill to ensure that
involuntary assessment and treatment is appropriate. These include:
· The person making a request for an assessment (eg. a community
member) must have observed the person within the last 3 days
before making a request for involuntary assessment so the
information is accurate and timely.
· Before the person can be detained involuntarily for assessment, a
recommendation for assessment must also be made by a doctor
or other specially appointed experienced mental health
professional (an "authorised mental health practitioner"), who
must be satisfied that the person meets strict criteria.
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Mental Health
· Strict penalties are provided for in the Bill against a person
making documents based on information that the person knows
to be untrue. The Bill also makes it easier to commence a
prosecution under this provision.
· There is now a two-step authorisation process before involuntary
treatment is authorised. Before a person can be detained for
treatment, specific criteria must be met to authorise an assessment
of the person. Once the assessment has occurred, different
criteria must be met before involuntary treatment is authorised.
The criteria for involuntary assessment and treatment are
consistent with the UN Principles and the national model mental
health legislation.
· Stricter requirements for seclusion and mechanical restraint are
proposed in the Bill to replace administrative guidelines, with
penalties imposed for contravening the requirements.
· The Bill proposes that involuntary treatment must, at an early
stage, be authorised by a psychiatrist and not simply any medical
practitioner. Orders made by an authorised doctor who is not a
psychiatrist must be confirmed by a psychiatrist within 3 days.
· Involuntary treatment orders in the community
The legislation provides for involuntary treatment in the community as an
alternative to being an in-patient in a mental health service. That is, the
person is required to undertake treatment through a mental health service,
whilst still living in the community. This reflects contemporary clinical
practice and the principle of reform that involuntary treatment must be in the
least restrictive form. Safeguards are provided to monitor the treatment and
to respond quickly to the patient if they do not comply with treatment or
their condition deteriorates to the extent that they require in-patient treatment.
· Patient involvement in decision making
A significant change in the involuntary treatment process is the increased
involvement of the patient in decisions made about their treatment. This
reflects current State and national mental health policy that aims to improve
consumer participation in decision making.
The Bill requires the patient to be told about the decisions and the reasons
for treatment. The patient is also able to choose another person (the "allied
person") to help the patient to represent the patient's views.
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Mental Health
One of the guiding principles of the Bill is that, in making decisions
about the person, the person's views are to be taken into account and the
patient is to be encouraged to take part in decisions made about treatment.
· Independent review of involuntary status
The Bill proposes to increase the quality of the reviews regarding the
status of involuntary patients. It is proposed that the numerous Patient
Review Tribunals be replaced by a single Mental Health Review Tribunal
with one president, and panels appointed across the state. It is also
proposed that the panels be required to include a member of the community
who is not a doctor or lawyer, therefore ensuring community representation
on the panel. Changes are also proposed to be made to the way in which
matters will be heard, with new hearing procedures and the right to legal
representation specifically provided for.
The Bill proposes to double the amount of independent reviews for a
patient (every six months, rather than the current 12 monthly review), with
no limit on how many times a patient can apply to be reviewed (subject to
refusal on the basis that the application is frivolous or vexatious). It is
proposed that the President have the discretion to allow single member
panels to hear reviews if necessary and appropriate (for example, in rural or
remote areas where it may be more difficult to convene a full panel, or in
urgent circumstances).
· Regulated treatments
Specific treatments are proposed to be regulated in the legislation and
offences with significant penalties are provided for contravening these
procedures. Insulin induced coma therapy and deep sleep therapy are
prohibited under the Bill. Electroconvulsive therapy can only be performed
after specified criteria are met and, for an involuntary patient, after the
treatment has been authorised by an independent tribunal. Psychosurgery
can only be performed after strict criteria are met and must always be
authorised by an independent tribunal.
· Provision for the role of guardians and attorneys in the Mental Health
Bill
Although guardians (under the Guardianship and Administration Act
2000) and attorneys (under the Powers of Attorney Act 1998) do not have
any power to provide substituted consent to treatment when a patient is
subject to the involuntary treatment provisions of the Bill, the Bill
recognises that guardians and attorneys may have relevant information and
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Mental Health
play a role in assisting the patient to represent the patient's views in the
involuntary process.
Guardians and attorneys are now automatically notified at key points in
the involuntary process, are able to appear before the Mental Health Review
Tribunal and can be chosen to be the patient's allied person.
Further, the principles of the Mental Health Bill are consistent with the
principles in the Guardianship and Administration Act 2000 where relevant
and Advance Health Directives are recognised at relevant points in the
Mental Health Bill.
· Provision for the interstate transfer of people with a mental illness
The Mental Health Bill provides for the admission, transfer and return of
involuntary patients to and from other States or Territories to ensure
effective treatment and detention of the patient. This can occur when formal
agreements between state or territory governments are made to give effect to
these provisions.
· Admission and treatment of people with a mental illness serving a
sentence of imprisonment or charged with a criminal offence.
The processes and requirements that apply to the assessment of a patient
admitted to a service from court or custody are simplified and streamlined.
The processes are similar to those for patients who have not committed
offences. However, a person who has been charged with a criminal
offence, or who is serving a sentence, is also able to be assessed and treated
with their consent. The patient is still detained involuntarily, as they do not
have bail or parole and the patient's security must to be assured.
· Expert determination of criminal responsibility for people with a
mental illness charged with a criminal offence.
It is proposed that the current Mental Health Tribunal be abolished and
replaced by the Mental Health Court constituted by a Supreme Court judge,
with amendments to its jurisdiction and procedures that more closely align it
with the broader court system. Specific reforms include:
· The test for returning the matter to the criminal court system
when significant matters are in dispute is specified in the
legislation and the test has been widened. That is, the Court must
refrain from making a decision about the person's criminal
responsibility if there is a reasonable doubt that the person
committed the offence, or if a fact that is substantially material to
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Mental Health
the opinion of an expert witness is so in dispute as to make it
unsafe to make a determination.
· The Mental Health Court will retain inquisitorial powers to enable
it to accept and consider material that would otherwise be
inadmissible in a criminal court (for example, the evidence of a
victim of their observations about the person some weeks prior to
the offence). The Mental Health Court will not be bound by the
rules of evidence (unless the interests of justice require it).
· The decision making of the Mental Health Court will be more
open and accountable than the Mental Health Tribunal. The role
of the assisting psychiatrists is specified and limited to matters
within their expertise. The advice the psychiatrists provided to the
judge must also be provided to the parties. Note that the assisting
psychiatrists do not examine the person, but provide advice to the
judge by analysing and clarifying the meaning of the clinical
evidence. In the hearing, the advice must now be audible to the
parties.
· Provisions to recognise the role of victims of crime where the offender
has a mental illness
Certain reforms are proposed to be made to the independent review body
that determines the continued involuntary treatment and detention of a
patient (to be called the Mental Health Review Tribunal) to take into account
the concerns of the community, including victims of crime. The reforms
include:
· requiring the Mental Health Review Tribunal to include a member
of the community who is not a doctor or lawyer, ensuring
community representation on the panel making decisions about
the detention of the patient; and
· in cases that represent greater concern (eg. a person who has
committed a violent offence, or whose condition or history
indicates potential danger to the community), the panel size for
reviews can be increased to up to five members.
Amendments are proposed to be made to the test for leave of absence
(now called "limited community treatment") for patients who have
committed criminal offences, or who have been charged with committing
an offence, including:
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Mental Health
· for a patient with outstanding charges, the test for limited
community treatment is generally consistent with the test for other
people in the criminal justice system, that is, the test for bail under
the Bail Act 1980.
· for a patient found of unsound mind in relation an offence, only
the Mental Health Court or the Mental Health Review Tribunal
can approve limited community treatment. This means the
decision is made either by a Supreme Court judge or a properly
constituted independent review body that reflects community
expectation more appropriately.
· for a patient serving a sentence of imprisonment who is detained
in a mental health service for involuntary treatment, limited
community treatment cannot be undertaken without being
escorted by staff.
Under the current Act, criminal proceedings are automatically
discontinued if the patient remains unfit for trial for 3 years, that is, for a
period of 3 years. A person will be unfit for trial if the person is unable to
understand what it means to plead guilty or not guilty, or understand what
he or she is charged with. Also, the person will be unfit for trial if they are
not able to understand the general nature of court proceedings, or if they are
unable to tell their lawyer or the court their version of events or comment to
their lawyer about the evidence. The person will also be unfit for trial if, in
attending the trial, they are likely to experience a serious deterioration in their
mental condition.
Under the Bill, for offences carrying a maximum penalty of life
imprisonment, proceedings are not discontinued until 7 years have elapsed.
For other less serious offences, the proceedings are discontinued after 3
years. Discontinuing proceedings does not prevent the patient from being
detained for involuntary treatment in a mental health service if they continue
to meet the criteria.
Victims can provide information to the Mental Health Review Tribunal
and the Mental Health Court that is relevant to the determination of the
body, if it is not already before the body. Therefore, information from the
victim that may not have been relevant to the police investigation will now
be available to the Court. For example, the evidence of a victim about their
observations of the person some weeks prior to the offence may be able to
be submitted to the Court.
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Mental Health
Victims can be notified of certain hearings and decisions about the patient
including: a hearing to discharge the patient, and decisions to authorise
limited community treatment, transfer the patient to another service, or
move the patient out of Queensland. The reasons for making or not making
the notification order must be provided to the victim.
· Amendment to provide for the effective transition between the current
Act and the new system
An amendment to the current Act is required that would come into effect
upon assent of the Mental Health Bill and continue in force until the new
Mental Health Act 1974 commences. It became clear in consultation on the
transitional arrangements between the current and new Act, that additional
hearings of the Patient Review Tribunal (the body reviewing the detention of
involuntary patients) will be necessary before commencement. If the
additional hearings do not take place, the new Mental Health Review
Tribunal will not be able to hear the number of matters within the new time
frames imposed by the Mental Health Bill. This could result in patients
being unlawfully detained or being discharged while still requiring
involuntary treatment. The current provisions restrict the number of
members for each panel, and only authorise them to sit within one region,
limiting the number of members available to hear matters. The proposed
amendment removes this restriction and enables special panels to be formed
to hear the outstanding matters.
· Consequential amendment to provide for community visitor scheme
The Mental Health Bill repeals the provisions relating to the current
Official Visitor scheme and makes a consequential amendment to the
Guardianship and Administration Act 2000 to ensure that the community
visitor scheme established under that legislation applies to voluntary and
involuntary patients at authorised mental health services.
As part of the Mental Health Act 1974 review process, it became clear
that the current Official Visitor's scheme was not sufficiently independent
of the services they were overseeing. The scheme should be administered
from an agency external to Queensland Health to ensure independence and
increase accountability and confidence in the scheme. There was also a need
to ensure patients had access to a person with power to investigate their
complaints and advocate on their behalf, rather than continuing the more
restrictive regulatory model of the current scheme.
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Mental Health
The Guardianship and Administration Act 2000 sets up a community
visitor scheme that is based on the model recommended as part of the
review process. It is administered externally to Queensland Health, and has
investigatory and advocacy functions and powers. The scheme will cover
people with impaired decision making capacity living or receiving services
at "visitable sites" declared under the legislation. The consequential
amendment ensures that voluntary and involuntary patients who are
receiving services at authorised mental health services will be covered by the
scheme. Stakeholders representing the views of people with a mental
illness will be involved in the implementation of the community visitor
scheme to ensure that the administrative arrangements are appropriate to
their specific needs (for example, job descriptions for those particular
visitors who will be assigned to authorised mental health services, and
training and materials).
The community visitor scheme set up under the Guardianship and
Administration Act 2000 will have commenced by the time the Mental
Health Bill amendment repealing the Official Visitor provisions come into
force. Therefore it is not necessary to provide for any interim arrangements.
Estimated cost of implementation for Government
The initial implementation of the new Mental Health Act has been
estimated at $1.47M per year. Funds have already been secured for this
purpose.
Additional funds were required in order to:
· establish the Mental Health Review Tribunal and fund the
additional members and sitting fees that are required to meet the
increased number of reviews;
· establish the new registry for the Mental Health Court;
· provide funds to mental health services to meet the cost of
transportation by ambulance (now provided for under the Bill) for
people who do not have a current subscription to the ambulance
service.
· provide education on the new legislation as the reforms introduce
a new scheme.
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Mental Health
A review of the financial implications of the Bill will take place 12
months after commencement. The funding allocation for the operation of
the Mental Health Review Tribunal is based on an extrapolation from
Victoria, as they have broadly equivalent provisions. The actual cost for the
Mental Health Review Tribunal (as opposed to the projected costs) will need
to be reviewed after 12 months operation.
Other financial allocations that will need to be reviewed after 12 months
are:
· the cost of ambulance transportation to a Mental Health Service
when the patient does not have an ambulance subscription; and
· the cost to services of having to return the person if an involuntary
treatment order is not made after detention for assessment.
A fundamental component of the accountability mechanism for
involuntary treatment is an independent system to oversee the scheme's
application to individual patients. The current Official Visitor provisions are
omitted from the current Act by the Mental Health Bill 2000, as a new
system is to be established independent of Queensland Health.
A community visitor scheme for people with a mental illness is to be
provided as part of the generic community visitor scheme being established
by the Department of Justice and Attorney-General under the Guardianship
and Administration Act 2000 (to be passed and commenced prior to the
commencement of the Mental Health Bill 2000). Additional funds to
establish the community visitor scheme for people with a mental illness are
being sought through the Department of Justice and Attorney-General, as
part of the budget process.
Additional funds are required for the community visitor scheme as it
applies to people with a mental illness because of the need to oversee
community mental health services in addition to in-patient facilities, taking
into account the new community category of involuntary treatment orders.
People will be receiving involuntary treatment from community mental
health services when on a community category of an involuntary treatment
order. Additional funds are also required to provide for the increased
advocacy/complaints resolution powers provided for under the
Guardianship and Administration Act 2000, which meets concerns
expressed in the Carter Inquiry into Ward 10B and other comments in the
review process about the need for more comprehensive powers and
functions for the community visitor scheme.
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Mental Health
Consistency with Fundamental Legislative Principles
Aspects of the Bill which raise possible breaches of fundamental
legislative principles are outlined below.
· Treatment and detention without consent
The Mental Health Bill impacts on the rights and liberties of individuals
through the provision of a scheme that enables examination, assessment,
treatment and detention of a person without their consent. Chapters 2 and 3
deal with the involuntary assessment of a person, including authorising the
involuntary examination of the person. Chapter 4 provides for involuntary
treatment. Chapter 7 provides for the involuntary detention for treatment of
a person found of unsound mind or unfit for trial in relation to a criminal
offence. Chapter 12 provides for the compulsory examination of the person
to assist in the determination of unsoundness of mind or unfitness for trial.
The scheme for involuntary treatment is necessary to protect the health
and safety of persons with a mental illness and to ensure the safety of the
community. A significant feature of some mental illnesses is the person's
inability to recognise the presence of illness and the need for treatment.
Without treatment, the person is likely to remain unwell for an extended
period to the detriment of their own quality of life, health and safety and in a
small number of cases, the safety of others.
The Bill aims to protect against the inappropriate application of the
involuntary processes in a range of ways including:
· a requirement that the power to restrict a person's liberty be
exercised only if there is no less restrictive way to protect the
person or others (clause 9);
· requiring that before a person is subjected to involuntary treatment
there must have been an expert diagnosis of mental illness and the
need for involuntary treatment (Chapter 2, Part 4);
· a requirement for two unrelated individuals to certify that a person
requires involuntary assessment, one of whom must be a doctor
or a specially appointed experienced mental health professional,
that is, an "authorised mental health practitioner" (Chapter 2, Part
2);
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Mental Health
· a requirement for the doctor or authorised mental health
practitioner to be satisfied that specified criteria apply before
making this certification (clause 20(2) and see clause 13 for the
criteria);
· a requirement for an order for involuntary treatment to be made
by a psychiatrist, or for an interim period (ie. a maximum of 72
hours), by a specially appointed doctor with experience in the
treatment of mental illness (ie. an "authorised doctor") (Clauses
108 and 112);
· a requirement that before making the involuntary treatment order
the doctor must be satisfied that specified criteria apply (clause
108, see clause 14 for the criteria);
· the review of involuntary status occurs automatically, at specified
intervals and on the application of the person being assessed or
treated, by an independent tribunal (the Mental Health Review
Tribunal) (Chapter 6);
· the right of appeal against the Mental Health Review Tribunal's
decisions (Chapter 8, Part 1);
· the appointment of an allied person for the patient who is
independent of the treating service and who is notified upon the
patient's detention for involuntary assessment, and at other key
stages in the involuntary treatment process:
· on the making of an involuntary treatment order and any
amendments to or revocation of that order;
· on application for certain treatments that are regulated in the
legislation; and
· on the hearing of statutory reviews and applications for
reviews of the patient's detention.
The allied person also has the right to appear at reviews and
treatment applications, and can lodge appeals on behalf of the
patient regarding the patient's detention. See Chapter 9 for
appointment process and role of the allied person. There are
specific provisions throughout the Bill for notifications, right of
appeal and appearance.
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Mental Health
As part of the involuntary treatment process, the Bill empowers a police
officer, ambulance officer, or a psychiatrist to make an "emergency
examination order" (Chapter 2, Division 3). An emergency examination
order empowers the police officer, ambulance officer or psychiatrist to take
a person to an authorised mental health service to conduct an examination to
determine if documents authorising assessment should be made for the
person.
Emergency examination orders are necessary to provide for the
admission of a person in situations of imminent risk where the delay
required in proceeding through the process of recommendation/request or
detention on authority of a magistrate ("a justices examination order")
would substantially increase the risk to the person or others.
The safeguards provided in the Bill against the inappropriate use of this
power include:
· a strict test that the person must be satisfied of before authorising
the person's detention, including that the person has a mental
illness, that there is an imminent risk of significant physical harm
to the person or others, and that proceeding under the other
mechanisms would cause dangerous delay and significantly
increase the risk of harm to the person or someone else (clause 33
for the police officer or ambulance officer, and clause 37 for a
psychiatrist);
· restricting the categories of people who can authorise this action to
people with appropriate skills and qualifications. Police officers
and ambulance officers are usually called upon to assist in these
emergency situations and have sufficient experience in dealing
with potentially violent situations. It is also more likely that very
disturbed persons would present to a psychiatrist rather than a
general practitioner and a rapid response is required to ensure the
safety of the person and others. A psychiatrist has the necessary
level of seniority and expertise in mental health to authorise an act
that significantly affects the rights of the person;
· strictly limiting the time that the person is able to be detained to a
maximum of six hours (clauses 36 and 40);
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Mental Health
· requiring the person carrying out the examination to identify
themselves to the person and explain why the person is being
detained and what is going to occur when they are detained
(clauses 36, 40 and 542);
· if assessment documents are not made at the end of the period of
detention, the person must be taken back to the place from which
the person was taken, or any other place the person reasonably
asks to be taken. The Director of Mental Health is also notified in
these circumstances to monitor the use of emergency examination
orders (clause 41).
As part of the involuntary treatment process, the Bill also contains
powers relating to entry and search without the occupier's consent for the
purpose of locating an individual who is in need of urgent assessment to
determine whether an involuntary treatment order should be made. Again,
these powers are necessary because the nature of some mental illnesses
means that the person lacks insight into the need to obtain treatment for the
illness. The power to enter and search for the person is necessary to ensure
the person's own health and safety, and the safety of others.
The Bill places limitations on the power to use force to enter and search a
premises without the occupier's consent. Such powers can only be
exercised on the authority of a warrant obtained by police from a magistrate
(Chapter 14, Part 2) or an examination order issued by a magistrate or
justice of the peace (qualified) (Chapter 2, Part 3, Division 2). In urgent
circumstances or other special circumstances including for example the
remote location of the police officer, a warrant can be issued by a Magistrate
on the basis of an application by telephone, fax or radio.
Natural justice and determinations of the Mental Health Review Tribunal
In exercising its functions, the Mental Health Review Tribunal (the
statutory body that provides independent review of involuntary status) will
apply the principles of natural justice (clause 459). However, there are three
areas where a breach of the principles of natural justice may be identified.
Firstly, the Bill does not require written reasons for Mental Health
Review Tribunal decisions to be routinely provided to the patient. In a
reasonable proportion of cases, it can be expected that references to
symptomatology and other clinical matters contained in a statement of
reasons will result in a patient experiencing distress, anger or anxiety and
this potentially places recovery at risk. It is preferable that such matters are
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Mental Health
discussed with the patient at appropriate times in the recovery process, with
due sensitivity and the provision of appropriate counselling and support.
On balance, the routine provision of a statement of reasons is not
considered to be in the best interests of the patient. However, the Bill
requires that the patient be given a copy of the decision in all cases, and
written advice of his/her entitlement to request a statement of reasons
(clause 192). If the patient requests the reasons, the Tribunal must give the
patient reasons and if the request is made within 7 days of receiving the
notice, the Tribunal must provide the reasons within 7 days.
However, the reasons for the decision will not be provided to the patient
if there is a confidentiality order preventing the information being provided
to the patient (clause 192). Confidentiality orders may be made by the
Mental Health Review Tribunal (clause 458) or the Mental Health Court
(clause 426). Confidentiality orders prohibit or restrict the disclosure of
information relating to the patient, including the reasons for a decision of the
Mental Health Court or Mental Health Review Tribunal.
Confidentiality orders are limited to circumstances where the
decision-maker is satisfied that disclosure will cause serious harm to the
health of the person or place the safety of another person at risk. In order to
protect the patient's rights, if a confidentiality order is made, the
decision-maker must disclose the information to the patient's lawyer or
agent and give written reasons for the making of the confidentiality order to
the lawyer or agent. If the patient is not represented at the hearing, the Court
or Tribunal must appoint a lawyer or agent to receive this information, at no
cost to the patient. The lawyer or agent can appeal against the decision to
make a confidentiality order (see Chapter 8).
Powers to search patients and visitors and withhold certain items
Chapter 10 of the Bill provides powers to search visitors and in-patients,
scrutinise postal articles and to seize certain material that is potentially
harmful. The Bill also allows certain visitors to be excluded from the
authorised mental health service. These provisions are a departure from the
general fundamental legislative principle that sufficient regard be given to
the rights and liberties of individuals.
The powers are necessary to enable proper security to be maintained and
to ensure the safety of patients, staff and visitors within mental health
services. Limitations and safeguards apply in the application of these
powers.
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Mental Health
The power to interfere with postal articles relates to restricting the
delivery or the sending of a thing by post and the power to open or examine
anything received by the patient (clauses 349 and 350). These powers only
apply to patients in high security units which accommodate patients
transferred from correctional facilities or watch-houses and those patients
transferred from other mental health services if the Director of Mental
Health considers it necessary that they be detained in a high security unit.
The article can only be opened or examined in the patient's presence and
after they have been advised of their right to request the presence of a
lawyer. If the patient requests a lawyer be present, the examination must
occur in the presence of a lawyer, except if the accountable officer (the
administrator) for the service is satisfied it is not reasonably practicable to
delay the opening.
The power to search patients and their possessions applies to any patient
in an authorised mental health service (Chapter 10, Part 3) and is expressed
to apply only to ensure the protection of the patient and the security and
good order of mental health services (clause 352). Strict limitations are
placed on these powers. The search can only occur on the reasonable belief
that the patient is in possession of a harmful thing (clause 353), and only
certain officers are able to carry out the search (clauses 354 and 355). How
the search can be carried out is strictly defined, the privacy and dignity of the
patient is to be respected, and more invasive searching of the person must
be separately authorised if it is deemed necessary in the circumstances to
carry out a proper search (clause 357). Records must be kept of the search
and things seized and strict provisions determine what must happen to the
thing if it is seized (clauses 359, 360).
The power to search visitors to a patient only applies to visitors to high
security units (clause 361. Similar restrictions are placed on the search of
visitors as applies to patients (Part 3, Division 3).
The Bill provides for compensation to be paid if the possession of a
visitor or the patient is damaged in the exercise of the power to search or
examine the thing under Chapter 10 (clause 373).
The power to exclude a person from visiting a patient (set out in Part 4 of
Chapter 10) is necessary to protect the patient's health and welfare. The
visitor can only be excluded if the administrator for the service is satisfied
that the proposed visit will adversely affect the patient's treatment. Written
notice of the decision and the reasons for the decision, including their right
20
Mental Health
to appeal and how the appeal is made, must be provided to the visitor. A
stay of the decision can be granted before the appeal is heard to enable the
person to visit the patient pending the outcome of the appeal (clause 378).
Director of Mental Health and an approved officer's power to enter an
authorised mental health service without warrant or consent
The Bill gives the Director of Mental Health and an "approved officer"
appointed by the Director of Mental Health the power to enter and inspect
authorised mental health services to ensure the proper and efficient
administration of the Act (clauses 532 and 533. Note that the dictionary
defines an approved officer as the Director of Mental Health, or a person
appointed under clause 500).
The powers include visiting the service without notice and inspecting any
part of the premises, seeing a patient at the service, inspecting documents
and requiring reasonable help for the exercise of those powers (clause 532).
A penalty is imposed if the person refuses to comply with the request to
help (clause 532(4)). The Director of Mental Health or approved officer can
also require the production of documents and penalties are imposed if the
documents are not produced (clause 533).
To ensure that the rights of patients subject to involuntary detention and
treatment are protected, it is important that authorised mental health services
(where the detention and treatment takes place) be subject to external
scrutiny provided for by these powers. The powers to enter and inspect the
authorised mental health services ensure that the proper procedures and
processes in the Act are being complied with.
To ensure against inappropriate use of the power to enter and inspect the
premises and require the production of documents, the power is limited in
the following ways:
· the powers to enter and inspect and require documents are strictly
described (clauses 532 and 533);
· the power to enter the authorised mental health service is limited
to within business hours of health services (between 8 a.m. and 6
p.m.) (clause 532(1));
· the authorised officer (and the Director of Mental Health) are
required to have identity cards containing a recent photograph of
the person (clause 503). Clause 542 requires the officer, before
exercising the power, to identify themselves to the extent
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Mental Health
reasonably practicable, for example by producing their identity
card or having it clearly displayed;
· when the authorised officer requires the person to give help that is
reasonable, the authorised officer must warn the person it is an
offence not to comply with the requirement unless the person has
reasonable excuse (clause 532(4);
· it is a defence to the person not providing help to the authorised
officer if the person has a reasonable excuse (clause 532(3)). The
legislation states that it is a reasonable excuse if the requirement
might tend to incriminate the person (clause 532(5)). The same
defence applies to the production of documents under clause 533;
· an authorised officer is appointed by the Director of Mental
Health only if the officer has the necessary expertise or experience
to perform the functions of the authorised officer (clause 500(2)).
Compulsory examination of offenders and references to the Mental Health
Court
Clause 238 of the Bill authorises the involuntary examination of patients
who are subject to the involuntary treatment provisions and charged with an
offence. Further, the Bill makes provision for the Director of Mental Health
to refer criminal matters to the Attorney-General or the Mental Health Court
for determination without the person's consent (clause 240).
As noted above, a significant feature of some mental illnesses is the
inability of the patient to have insight into the nature and effect of their
illness, which may prevent them from consenting to the examination or to
the reference being made. These procedures are intended to protect those
patients who are most vulnerable by ensuring examination of the relevant
issues, in particular, the patient's mental state at the time of the offence and
their current fitness for trial. This pro-active approach better ensures
identification of persons whose criminal behaviour results from mental
illness and thus enables a response (ie. treatment for mental illness) which
provides greater protection against re-offending.
In the case of a matter referred to the Mental Health Court, further
examinations may be ordered by the Mental Health Court (clause 422).
Such examinations are necessary to enable the Court to make informed
determinations about issues of unsoundness of mind and fitness for trial
and an appropriate order for the patient's care after the hearing. Again, the
person may not consent to the examination due to the nature of their mental
22
Mental Health
illness. The Court is empowered to require examination on an in-patient
basis only where the examination cannot be achieved through less restrictive
means. There are strict limitations on the period of detention and
mechanisms, which ensure the person's earliest possible release.
The rights of individuals encompassed by the above scheme will be
protected by the inclusion of the following:
· a person referred to the Mental Health Court by the Director of
Mental Health may, upon ceasing to be an involuntary patient,
withdraw the reference;
· a person whose criminal charge is determined by the Mental
Health Court will retain their right to trial by jury;
· the legislation will limit the purpose for which information
obtained under routine or compulsory examination may be
applied.
Criminal history may be provided to Mental Health Court
Under clause 400 of the Bill, if the registrar of the Mental Health Court,
in relation to a matter before the Court, asks the commissioner of the police
service or the Director of Public Prosecutions for a written report on a
person's criminal history, the commissioner or director must provide the
report. This may be seen as adversely affecting an individual's liberty.
The provision of this information is necessary to enable the Mental
Health Court to assess whether a patient is a danger to himself, herself or
others. This consideration is taken into account in determining whether a
person should be released into the community.
The consideration of a person's criminal history is essential when the
Mental Health Court is determining criminal responsibility. As the Mental
Health Court has powers of inquiry, it is not constrained by the rules of
evidence thereby allowing it to consider material that would not be
admissible in a jury trial.
The Mental Health Court has powers of inquiry so as to facilitate an
unconstrained investigation into a matter. The criminal history contributes to
development of the overall picture of the person's mental state, which is
necessary to determine the person's criminal responsibility.
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Mental Health
It should be noted that the Criminal Law (Rehabilitation of Offenders)
Act 1986 excludes the operation of the Act to criminal or civil proceedings
before a court if the fact of the conviction or charge is relevant to an issue in
the proceedings.
Any information obtained under this provision will be protected by the
confidentiality obligations under clause 528 of the Bill.
Consultation
An extensive process of consultation has been undertaken in developing
the proposals for the Mental Health Bill 2000 beginning in 1993 with the
development of a Green Paper that was widely consulted on in 1994.
Specific reviews with focussed consultation have also been conducted on
the operation of the Mental Health Tribunal and the Patient Review Tribunal.
Public consultation has also taken place on proposals addressing the rights
and interests of victims where the offender is mentally ill or has an
intellectual disability.
The final stage in the development of the proposals was the release of an
exposure draft of the Mental Health Bill 2000 to key stakeholders
throughout the State. The stakeholders included all mental health services
and other general health services in Queensland, key consumer and carer
organisations, key health and legal professional bodies, current staff of the
Mental Health Tribunal and Patient Review Tribunals and other relevant
government agencies, and representatives with mental health knowledge
from the Aboriginal and Torres Strait Islander and non-English speaking
communities. Individual victims of crime and organisations representing
the interests of victims of crime were also included in the consultation.
The purpose of the consultation on the draft Bill was to determine if there
were any unintended consequences arising out of the practical application of
the proposals in a variety of contexts throughout Queensland. Further, as
there had been no information regarding the outcome of the consultations on
proposals as a whole since the Green Paper in 1994, it was seen as
important to release a draft Bill for consultation before introduction.
Consultation strategies on the draft Bill included:
· Distribution of the Bill and an Information Paper explaining in
plain English the provisions of the Bill;
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Mental Health
· Information sessions held in ten selected sites around
Queensland, taking into account the different contexts in which
the legislation is to operate (rural, remote, regional, metropolitan,
urban);
· Focus groups held for mental health services, consumers and
carers, the Aboriginal and Torres Strait Islander and non-English
speaking communities and forensic mental health services and
victims of crime; and
· Distribution of a video taped information session.
The proposals for the Mental Health Bill 2000 were also developed in
consultation with other relevant government departments, including the
Department of Premier and Cabinet; the Department of Justice and
Attorney-General; Families, Youth and Community Care, Queensland;
Disability Services Queensland; the Queensland Police Service; and the
Correctional Services Commission.
CHAPTER 1--PRELIMINARY
Part 1--Introduction
Clause 1 sets out the short title of the Bill.
Clause 2 provides for the commencement of the provisions of the Bill.
The provisions in Part 1 of Schedule 1 that set up special panels of the
Patient Review Tribunal are to commence on assent and are then repealed
on commencement of the remaining provisions of the Act. This is to
ensure an effective transition of the current Mental Health Act 1974. See
Schedule 1, Part 1 for a full explanation of the provision.
Clause 3 provides that the Act binds all persons including the State of
Queensland and, as far as the legislative power of Parliament permits, the
Commonwealth and other States. However, the State of Queensland may
not be prosecuted for an offence against the Act.
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Mental Health
Part 2--Purpose and Application of Act
Clause 4 sets out the purpose of the Act which is to provide for the
involuntary assessment and treatment, and the protection, of persons having
a mental illness while at the same time safeguarding their rights. The clause
clarifies that the Act applies to adults and children. While it is rare for a
young person under the age of 16 years to need to be assessed or treated
involuntarily, situations arise where it is necessary to do so. For this reason,
the Bill makes it clear that no minimum age limit is set for the application of
the Bill.
Clause 5 sets out the ways in which the purpose of the Act is primarily
achieved. The matters listed under this clause are the principal functions,
processes or mechanisms that enable the purpose of the Act to be achieved.
Clause 6 clarifies that this Act does not prevent a person having a mental
illness being admitted to, or being assessed or treated at an authorised
mental health service other than as an involuntary patient, for example, as a
voluntary patient. The objective of this provision is to clarify that voluntary
patients should not be disadvantaged by the operation of this Act.
Clause 7 provides for flow charts to be attached to the Act to show the
way in which provisions of the Act apply in particular circumstances, and
how the provisions relate to each other. The clause clarifies that the flow
charts do not have the effect of law and do not form part of the substantive
provisions of the Act. The clause also sets out the way in which the flow
charts are to be updated to reflect amendments to the Act and the timing for
the updates to occur.
Part 3--Principles for administration of Act
Clause 8 sets out the general principles that guide the administration of
the Act. The principles are consistent with the model mental health
legislation (developed by the Commonwealth under the first National
Mental Health Plan) and the United Nations Principles for the Protection of
Persons with a Mental Illness and for the Improvement of Mental Health
Care. The principles from the Guardianship and Administration Act 2000
that are relevant to decisions made under this Act are also included in this
clause.
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Mental Health
The Act's administration is to be founded on principles that respect basic
human rights and ensure, to the greatest extent practicable, a person's
participation in decisions made about them under the Act. The principles
seek to ensure the particular needs and circumstances of the person are taken
into account, including the particular cultural, religious and linguistic needs
of people from non-English speaking backgrounds and the Aboriginal and
Torres Strait Islander community. The clause specifically provides that
treatment administered under the Act is to be provided only if it is
appropriate to promote and maintain the person's mental health and
wellbeing. Finally, the principles confirm that a person's right to
confidentiality must be recognised and taken into account, subject to the
specific provisions providing for the release of confidential information
under this Act and other relevant legislation. The principles set out in clause
8 are reflected throughout the Bill.
Clause 9 requires that a power or function exercised under the Act must
be exercised so that a person's liberty and rights are affected only if there is
no less restrictive way to protect the person's health and safety or to protect
others. If the person's liberty or rights are to be affected, the affect is to be
the minimum necessary in the circumstances. The purpose of the clause is
to ensure that any power or function exercised under the Act is to be
interpreted in a way that is consistent with this principle.
Part 4--Interpretation
Division 1--Dictionary
Clause 10 provides that the dictionary for particular terms used in the Act
is located in Schedule 2. The dictionary should be read together with the
"key definitions" in Part 4, Division 2 of this Chapter.
Clause 11 clarifies that a note located in the text is a part of the Act.
Division 2--Key definitions
The purpose of the key definitions is to provide an explanation of the key
terms and concepts that are central to an understanding of the Act.
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Mental Health
Clause 12 provides a broad definition of "mental illness". A person
should not be considered to have a mental illness merely by reason of a
number of listed circumstances being present. However, the presence of
one or more of the listed circumstances does not prevent a person from
having a mental illness. For example, a person may have a mental illness
that is caused by taking drugs or alcohol (which is a circumstance listed in
the exclusion). Similarly, a person will not necessarily be excluded from
the definition if they have a dual diagnosis, for example, of a mental illness
as well as an intellectual disability. An intellectual disability on its own is a
circumstance listed in the exclusions. This ensures that effective treatment
is not denied to people who would otherwise benefit from treatment of their
mental illness, but limits those people who are treated under the legislation
to those with a genuine mental illness and for whom involuntary treatment
in a mental health service would be effective.
The definition and the exclusions from the definition, and the requirement
that the decision be made in accordance with internationally accepted
medical standards, are drawn from the model mental health legislation and
the United Nations Principles for the Protection of Persons with Mental
Illness and for the Improvement of Mental Health Care.
Clause 13 sets out the criteria that must be met before a person can be
detained for assessment under Chapter 2 (the general assessment
provisions) or Chapter 3 (the assessment of persons who are before a court
or in custody).
Clause 13 is to be distinguished from clause 14. Clause 13 deals with
decisions about whether involuntary assessment is authorised to take place
whereas clause 14 deals with decisions about whether involuntary treatment
is authorised. The Mental Health Bill now requires a period of assessment
to occur before involuntary treatment can be authorised. This represents a
significant safeguard against inappropriate involuntary treatment: no person
should be subjected to involuntary treatment unless there has first been an
expert determination of the presence of mental illness and the need for
involuntary treatment.
The purpose of the assessment and the treatment criteria is to provide for
a limited and defined set of circumstances that must be satisfied before a
person can be detained for assessment or be treated involuntarily. This is an
additional measure to prevent inappropriate involuntary detention and
treatment. A person cannot be detained for assessment if they do not meet
each and every one of the assessment criteria. Similarly, a person cannot be
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Mental Health
treated involuntarily unless each and every one of the treatment criteria is
met.
The criteria ensure that the presence of a mental illness alone is not
sufficient justification for involuntary assessment or treatment. The criteria
also ensure that the person's right to choose whether to undertake treatment
is not breached unless a certain level of risk to self or others exists as well as
the other criteria are satisfied.
A doctor or a specially appointed experienced mental health professional
(an "authorised mental health practitioner") makes the decision as to
whether the assessment criteria are satisfied, on the available information.
The first assessment criterion in clause 13 is that the person appears to
have a mental illness. The definition of mental illness is set out in clause 12.
As the primary function of the assessment criteria is to determine whether a
referral for expert assessment should occur, a definitive finding of mental
illness is not required at this point. Therefore the test is whether the person
appears to have a mental illness. Expert assessment as to whether the
person has a mental illness and whether involuntary treatment is required is
made in the assessment phase.
The information to determine whether the person appears to have a
mental illness can be provided by a number of sources. These include
information contained in the request for assessment and through the
examination of the person by a doctor or an authorised mental health
practitioner. Information may also be provided by other people to the
doctor or authorised mental health practitioner.
The second assessment criterion is that, in the opinion of the doctor or
authorised mental health practitioner, the person requires immediate
assessment. The test whether the need for assessment is "immediate"
reflects the principle that involuntary interventions should be the least
restrictive alternative.
The third assessment criterion is that the assessment can properly be
made at an authorised mental health service to ensure that an involuntary
assessment can be carried out only if the person has a condition that can be
properly assessed by a mental health service.
The fourth assessment criterion is that there is a risk that the person may
cause harm to themselves or someone else or suffer serious mental or
physical deterioration. The test is not expressed as an "imminent risk of
harm" as appears in the treatment criteria. The test for whether assessment
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Mental Health
should occur is limited to reflect the least restrictive alternative principle, but
is not so limited as to prevent a person from being assessed in appropriate
circumstances.
The fifth assessment criterion encapsulates the principle of the least
restrictive alternative that must be applied before involuntary assessment is
authorised. The criterion states that the authorised mental health practitioner
must be satisfied that there is no less restrictive way of ensuring that the
person is assessed other than involuntarily.
The sixth assessment criterion states that for the purposes of conducting
the involuntary assessment under Chapter 2, the person must lack the
capacity to consent to the assessment, or have unreasonably refused to be
assessed. "Unreasonably refused" is not defined in the legislation, as a
variety of circumstances could occur to satisfy this criterion. Examples of
when a person's refusal could be considered unreasonable include when the
refusal would put the patient's safety or the safety of others at risk, or when
the decision making process in coming to the decision to refuse assessment
was irrational.
The determination of whether a person lacks the capacity to consent to the
assessment, relates to the person's own capacity to consent. The consent of
a guardian or attorney or statutory health attorney to the assessment on
behalf of the patient is not relevant to determine whether the person meets
the criteria or not.
This criterion should also be read in conjunction with principle (b) in
clause 8: a person is presumed to have capacity to consent to assessment.
The ability of the person to consent or the absence of the consent is
relevant only to assessment under Chapter 2. A classified patient under
Chapter 3 (a person who is admitted to the mental health service from court
or custody, for example prison or a watchhouse) can be involuntarily
detained as a result of being subject to criminal charges and not having bail.
However, this should not prevent the person's access to mental health
treatment because they are capable of consenting to assessment.
Clause 14 sets out the criteria that must be met before a person can be
treated involuntarily. A person cannot be treated involuntarily if they do not
meet each and every one of the criteria. An "authorised doctor" (appointed
for their experience and expertise in mental health) or a psychiatrist makes
the assessment as to whether the criteria are met when determining whether
to make an involuntary treatment order under Chapter 4. The treatment
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Mental Health
criteria are also relevant in the regular assessments that must occur under
Chapter 4 after an involuntary treatment order has been made. The purpose
of the regular assessment is to determine whether the patient continues to
meet the treatment criteria set out in this clause. The Mental Health Review
Tribunal, under Chapter 6, must also review whether the treatment criteria
continue to apply to the person.
The criteria for involuntary treatment are expressed in a similar way to
the assessment criteria, however the decision to be made is whether
treatment is authorised, not assessment.
The first treatment criterion that must be satisfied is that the person has a
mental illness, as defined in clause 12. Unlike the assessment criteria, the
authorised doctor or psychiatrist must determine whether the person has a
mental illness, not whether the person merely appears to have a mental
illness.
The second treatment criterion is that the person's illness requires
immediate treatment, reflecting the principle that involuntary interventions
should be the least restrictive alternative.
The third treatment criterion is that the proposed involuntary treatment is
available at an authorised mental health service, again to ensure that the
involuntary treatment can be carried out only if the person has a condition
that can be properly treated at a mental health service. An example of when
this criterion would not be satisfied is if the person has a condition for
which involuntary treatment is not effective or if the condition needs a
particular kind of treatment that is not available at an authorised mental
health service.
The fourth treatment criterion is that because of the person's illness, there
is an imminent risk that the person may cause harm to themselves or
someone else or suffer serious mental or physical deterioration. The risk to
the person or others must be caused by the person's mental illness, not
some other factor that is unrelated to mental illness. The risk of harm must
also be "imminent", which is not defined and therefore has its everyday
meaning.
The fifth treatment criterion encapsulates the principle of the least
restrictive alternative that must be applied before involuntary treatment is
authorised: there must be no less restrictive way of ensuring that the person
receives appropriate treatment other than involuntarily.
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Mental Health
The sixth treatment criterion states that the person lacks the capacity to
consent to treatment for the illness or has unreasonably refused the
proposed treatment. "Unreasonably refused" is not defined in the
legislation, as a variety of circumstances could occur to satisfy this criterion.
Examples of when a person's refusal could be considered unreasonable
include when the refusal would put the patient's safety or the safety of
others at risk, or when the decision making process in coming to the
decision to refuse the treatment was irrational.
Like clause 13, clause 14 makes it clear that the determination of whether
a person lacks capacity to consent to the treatment, relates to the person's
own capacity to consent. The consent of a guardian or attorney or statutory
health attorney to treatment on behalf of the patient is not relevant to
determine whether the person meets the criterion or not.
This criterion should also be read in conjunction with principle (b) in
clause 8: a person is presumed to have capacity to consent to treatment.
CHAPTER 2--INVOLUNTARY ASSESSMENT
Chapter 2 sets out the process for enabling a person to be assessed at an
authorised mental health service to determine if the treatment criteria apply
to the person. The process for authorising the person's involuntary
treatment for mental illness is dealt with separately, under Chapter 4.
"Assessment documents" must be completed before the person can be
assessed involuntarily at an authorised mental health service. The
assessment documents are a "request for assessment" and
"recommendation for assessment".
If assessment documents have not been made (eg if the person has not
been seen by a doctor or authorised mental health practitioner within the last
3 days) then an application can be made to a magistrate or justice of the
peace (qualified) for a "justices examination order". The justices
examination order authorises a doctor or authorised mental health
practitioner to examine the person to determine if a recommendation for
assessment should be made.
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If a request for assessment and recommendation for assessment are
made (in either of the circumstances mentioned above) for a person who is
not at an authorised mental health service, the person can be taken to the
health service for the assessment.
In the circumstances of an emergency, a person may be taken to an
authorised mental health service under an "emergency examination
order". This order authorises a person's examination at the authorised
mental health service to determine if the assessment documents should be
made.
Part 1--Interpretation
Clause 15 limits the definition of "authorised mental health service"
for this Chapter. An authorised mental health service is generally the only
place where involuntary examination, assessment or treatment can be
carried out. The limited definition in Chapter 2 prohibits a person's
examination or assessment from occurring at a high security unit.
However, the examination or assessment can occur at a public hospital
where there is no authorised mental health service readily accessible, for
example, in rural or remote areas.
Part 2--Requirements for involuntary assessment
Division 1--Preliminary
Clause 16 sets out the documents required to authorise a person's
involuntary assessment at an authorised mental health service. These are a
request for assessment and a recommendation for assessment, and together
are called the assessment documents. The assessment documents are only
valid if they comply with the requirements of this Part.
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Mental Health
Division 2--Request for assessment
Clause 17 specifies that a request for assessment of a person can be
made by any person who is an adult who reasonably believes the person has
a mental illness of a nature or to an extent that involuntary assessment is
necessary. As a safeguard to ensure the information is accurate, the person
making the request must have observed the person the subject of the request
within the previous 3 days.
Clause 18 requires the request for assessment to be in the approved
form.
Division 3--Recommendation for assessment
Clause 19 specifies that a recommendation for assessment of a person
can only be made by a doctor or authorised mental health practitioner. An
authorised mental health practitioner is a health practitioner appointed by the
Director of Mental Health as a person with the necessary expertise and
experience to perform the functions of the position.
The doctor or authorised mental health practitioner must have examined
the person within the previous 3 days. The examination could have been
carried out using audio visual link facilities. A doctor or authorised mental
health practitioner is prohibited from making recommendation for
assessment for a relative.
Clause 20 requires the recommendation for assessment to be in the
approved form. The doctor or authorised mental health practitioner must
include the facts on which the recommendation is based, specifying which
facts are known because of personal observation and those communicated
by others. A recommendation for assessment must not be made for a
person unless the doctor or authorised mental health practitioner is satisfied
that each and every one of the assessment criteria under clause 13 applies to
the person.
Clause 21 specifies that the recommendation for assessment can be acted
on for 7 days after it is made.
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Mental Health
Division 4--Miscellaneous provisions
Clause 22 clarifies that it is not important whether the recommendation
or request for assessment is made first. For example, a person who is
being seen by a doctor could in the course of the examination have a
recommendation for assessment made, which is then followed by a request
for assessment. However, the documents must be made within 7 days of
each other to ensure that the person still requires involuntary assessment. A
request for assessment is only in force when a recommendation for
assessment for the person is also in force.
Clause 23 requires the assessment documents to be made by different
persons.
Clause 24 prohibits a request for assessment being made by an employee
or relative of the doctor or authorised mental health practitioner who has
made a recommendation for assessment of the same person. It should be
noted that this does not prevent two employees of the same health service
making the assessment documents for a person.
Part 3--Procedures leading to involuntary assessment
Division 1--Provisions about taking persons to authorised mental health
services for involuntary assessment
Clause 25 sets out the process of taking a person to an authorised mental
health service where assessment documents are in force for the person. A
health practitioner or ambulance officer is empowered to take the person to
an authorised mental health service with the help, and using the force, that is
reasonable in the circumstances.
Police may be required to ensure reasonable help is given to take the
person to the authorised mental health service. For this provision, the health
practitioner or ambulance officer is declared a public official for the Police
Powers and Responsibilities Act 2000 to ensure that the police officer
providing the assistance has the same powers as the health practitioner or
ambulance officer while giving the help.
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The clause also specifies what the person must be told on being taken to
an authorised mental health service. However, if the circumstances do not
permit compliance with this requirement, the process is not rendered
invalid.
Clause 26 authorises the administration of medication to the person while
being taken to the authorised mental health service only if this is necessary
to ensure the safety of the patient or others. Where a doctor is satisfied this
is the case, the medication may only be administered by a doctor or
registered nurse under the specific instructions of a doctor.
The provisions in relation to the provision of non-consensual health care
under the Guardianship and Administration Act 2000 do not apply to the
giving of medication under this clause.
Division 2--Justices examination orders
Clause 27 sets out how an application may be made to either a magistrate
or justice of the peace (qualified) for a justices examination order. To ensure
the scheme is sufficiently flexible, a request for assessment may either be
made by the person who makes the application for a justices examination
order, or by someone else.
Clause 28 aims to ensure that justices examination orders are only issued
in particular circumstances. A magistrate or justice of the peace (qualified)
must have a reasonable belief that a person should be examined to
determine whether a recommendation for assessment should be made, on
the basis that the person has a mental illness and the order is necessary for
the examination to occur.
Clause 29 requires the justices examination order and any supporting
document to be forwarded to the administrator of an authorised mental
health service (normally the service nearest the person the subject of the
order). Where the order is made by a justice of the peace (qualified), a copy
of the order and a copy of the application documents must also be sent to
the registrar of the Magistrates Court. This would normally be the court
nearest the person the subject of the order. This ensures against a person
making numerous applications on the same grounds until they find a person
willing to grant the application.
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Clause 30 empowers a doctor or authorised mental health practitioner to
examine the person, and if necessary, to enter a place to conduct the
examination at any reasonable time of the day or night. The purpose of the
examination is to decide if a recommendation for assessment of the person
should be made.
Police may be asked to provide assistance to conduct the examination.
For this provision, the doctor or authorised mental health practitioner is
declared a public official for the Police Powers and Responsibilities Act
2000 to ensure that the police officer providing the assistance has the same
powers. Additionally, a police officer is given authority to detain the
person. This is intended to give the police officer entry and search powers
under the Police Powers and Responsibilities Act 2000.
After the examination, if both a recommendation and a request for
assessment are in force for the person, the person can be taken to an
authorised mental health service under Division 1 for the assessment.
Clause 30 also specifies what the person must be told on being taken to
an authorised mental health service. However, if the circumstances do not
permit compliance with this requirement, the process is not rendered
invalid.
Clause 31 requires the justices examination order to specify when the
authority to examine a person without their consent ends. The maximum
time is 7 days after the order is made.
Clause 32 aims to provide a safeguard against the inappropriate issue and
execution of justices examination orders by requiring that any orders not
resulting in the making of a recommendation for assessment, along with the
application documents, are sent to the Director of Mental Health.
Division 3--Emergency examination orders
Subdivision 1--Emergency examination orders by police officers and
ambulance officers
Subdivision 1 provides a scheme that empowers a police officer or an
ambulance officer to take measures, in an emergency, to take a person to an
authorised mental health service for an examination to decide if assessment
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documents should be made for the person.
Clause 33 sets out strict criteria that must be met before an emergency
examination order can be made for the person by a police officer or an
ambulance officer. A police officer's powers to enter a place in these
circumstances are provided under the Police Powers and Responsibilities
Act 2000. The matters that must be satisfied before the order is made
recognise the intrusive nature of the power, and therefore, reflect the
principle of the least restrictive alternative.
Clause 34 gives the police officer or ambulance officer authority to take
the person to an authorised mental health service only if satisfied of the
matters listed in clause 33.
Clause 35 sets out the documentation required to make the emergency
examination order, and to whom it must be given. Due to the urgent nature
of the circumstances, it is anticipated that the police officer or ambulance
officer will not have an opportunity to complete the documents until
immediately after taking the person to the authorised mental health service.
The time the order was made must be recorded on the order (ie. when the
document is completed).
Clause 36 enables the person to be detained at the authorised mental
health service for an examination by a doctor or authorised mental health
practitioner for not more than 6 hours from the time the order is made. It
should be noted that the time for detention would start after the person
arrives at the health service, because the order is made immediately after the
person is taken to the health service.
Subdivision 2--Emergency examination orders by psychiatrists
Similar to the emergency examination orders made by police or
ambulance officers, Subdivision 2 provides a scheme that empowers a
psychiatrist, to make an emergency examination order for a person.
Clause 37 sets out strict criteria that must be met before an emergency
examination order can be made for the person by a psychiatrist. Again, the
matters that must be satisfied before the order is made recognise the
intrusive nature of the power, and therefore, reflects the principle of the least
restrictive alternative.
Clause 38 gives a psychiatrist authority to make an emergency
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examination order.
Clause 39 gives the psychiatrist, a police officer or ambulance officer
authority to take the person to an authorised mental health service, once the
psychiatrist makes the emergency examination order.
Clause 40 enables the person to be detained for an examination by a
doctor or authorised mental health practitioner at the authorised mental
health service for not more than 6 hours from the time the order is produced
to a health service employee at the authorised mental health service.
Subdivision 3--General
Clause 41 requires, if assessment documents are not made for the
person, that the person is returned to the place from which the person was
taken for the examination or to another place the person reasonably asks to
be taken.
As a safeguard against inappropriate use of emergency examination
orders, the Director of Mental Health receives notice of all circumstances
where assessment documents are not made for a person for whom an
emergency examination order was made, in addition to a copy of the order.
Part 4--Detention as involuntary patient for involuntary
assessment
Division 1--Preliminary
Clause 42 specifies that the involuntary assessment provisions apply to a
person for whom assessment documents have been made.
Clause 43 states that the purpose of the Part is to provide for the person's
detention for assessment.
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Division 2--Involuntary assessment
Clause 44 enables a person to be detained as an involuntary patient in an
authorised mental health service for assessment for the "assessment
period". The assessment period is defined as an initial period of up to 24
hours, which may be extended under clause 47. For the purpose of
calculating time, the clause specifies when the assessment period begins and
requires the time when the assessment period begins to be written on the
assessment documents.
A person may become an involuntary patient after being taken to the
authorised mental health service under Part 3. Alternatively, a voluntary
patient already at the authorised mental health service can become an
involuntary patient, either on the making of assessment documents by
health practitioners at the authorised mental health service, or on production
of the documents to a health practitioner at the service.
Clause 45 sets out who must be told about the patient's assessment as an
involuntary patient.
Clause 46 requires an authorised doctor to make an assessment of the
patient as soon as practicable after the patient becomes an involuntary
patient. The purpose of the assessment is to determine whether the
treatment criteria apply to the person. The assessment may be carried out
using audio visual link facilities.
Clause 47 allows the assessment period for the patient to be extended by
an authorised doctor for periods of up to 24 hours at a time. The maximum
time allowed for the patient's detention is 72 hours from when the patient
first became an involuntary patient. The period can only be extended if it is
necessary to finish the assessment.
Clause 48 declares that the person is no longer an involuntary patient if,
by the end of the assessment period, an involuntary treatment order has not
been made by an authorised doctor for the patient. The doctor is obliged to
tell the person that this is the case to ensure the patient is aware they are free
to leave the health service. However, the person may continue to be a
voluntary patient of the health service.
Clause 48 also sets out circumstances when the person must be returned
to the place from which the person was taken for the assessment or to
another place the person reasonably asks to be taken.
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CHAPTER 3--PERSONS BEFORE A COURT OR IN
CUSTODY REQUIRING ASSESSMENT OR
DETENTION
Any person admitted to an authorised mental health service from court or
custody for assessment of mental illness will become a "classified
patient". The purpose of the classified patient scheme is to ensure the
secure management of the person whilst still ensuring the person has access
to treatment for mental illness.
The classified patient scheme provides for involuntary assessment at an
authorised mental health service but does not specifically include treatment.
The aim is to provide a scheme that operates in parallel with the treatment
provisions. A classified patient may be treated either with the patient's
consent or, if the treatment criteria apply, under the involuntary treatment
provisions of Chapter 4.
A classified patient can be admitted to any authorised mental health
service. Where the person receives assessment and treatment will depend
on the facilities available, the person's criminal and psychiatric history and
the person's treatment and security requirements. There are restrictions on
where a person may be detained as a classified patient if they are only
charged with a simple offence (ie. a less serious offence, for example,
breach of bail) or if the person is under 17 years.
Note that the classified patient scheme does not apply to persons granted
bail and then admitted to an authorised mental health service.
Chapter 3 also provides a scheme for the detention of a person in an
authorised mental health service during the person's trial.
Part 1--Requirements for assessment
Division 1--Preliminary
Clause 49 sets out the documents required to authorise a person's
detention as a classified patient in an authorised mental health service. A
recommendation for assessment and an agreement for assessment must be
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Mental Health
accompanied by either a court assessment order (if the person is before a
court or justices) or a custodian's assessment authority (if the person is in
custody). A place of custody includes a police watchhouse.
Division 2--Recommendations for assessment
Clause 50 specifies that a recommendation for assessment of a person
can only be made by a doctor or authorised mental health practitioner. The
doctor or authorised mental health practitioner must have examined the
person within the previous 3 days. The examination could have been
carried out using audio visual link facilities. A doctor or authorised mental
health practitioner is prohibited from making recommendation for
assessment for a relative.
Clause 51 requires the recommendation for assessment to be in the
approved form. The doctor or authorised mental health practitioner must
include the facts on which the recommendation is based, specifying which
facts are known because of personal observation and those communicated
by others. A recommendation for assessment must not be made for a
person unless the doctor or authorised mental health practitioner is satisfied
that each and every one of the assessment criteria applies to the person.
It should be noted that the assessment criteria for Chapter 3 do not
include a requirement that the person has unreasonably refused or lacks
capacity to consent to the assessment. This enables a person who can
consent to assessment to become a classified patient.
Clause 52 specifies that the recommendation for assessment can be acted
on for 7 days after it is made.
Division 3--Agreements for assessment
Clause 53 provides that an agreement for a person's assessment as a
classified patient may be given by either the administrator of the authorised
mental health service at which the person is to be assessed or the Director of
Mental Health. A young person (ie. under 17 years) or a person charged
only with a simple offence can only be admitted as a classified patient to a
high security unit with the Director of Mental Health's approval. This
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ensures against inappropriate admissions for these people. The clause also
sets out the matters the Director of Mental Health must consider in deciding
whether or not to give the approval.
Clause 54 sets out when the administrator of an authorised mental health
service can give agreement for a person's assessment at the health service as
a classified patient. The aim is to ensure that a classified patient is provided
treatment in the most suitable setting, given the person's criminal and
psychiatric history, as well as their treatment and security requirements.
Clause 55 empowers the Director of Mental Health to give agreement for
a person's assessment as a classified patient at a particular authorised mental
health service in the absence of an agreement by the administrator of that
service. However, the administrator must have first refused to give the
agreement.
Clause 56 specifies that the agreement for assessment can be acted on for
7 days after it is made.
Part 2--Persons having a mental illness before court
Division 1--Court assessment orders
Clause 57 states that the provisions about court assessment orders apply
to persons charged with simple or indictable offences.
Clause 58 empowers a court or justices to make a court assessment order
for a person and specifies the circumstances in which an order can be made.
The court or justices must be given a recommendation and agreement for
assessment, which are in force for the person before a court assessment
order can be made. Note that it is sufficient for the court or justices to be
given a facsimile copy of the documents.
The clause also sets out what the court must do on making a court
assessment order.
Clause 59 sets out what the court must do if a court assessment order is
not made. It aims to clarify that a court assessment order should only be
made if the person needs to be detained in an authorised mental health
service for assessment. Alternatively, the person could be remanded in
custody or granted bail, and subsequently assessed as an out-patient or a
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Mental Health
voluntary patient of a health service. This also includes assessment whilst
in prison custody.
Division 2--Orders by Supreme and District Courts if person pleads
guilty to indictable offence
Clause 60 provides that this Division does not apply to Commonwealth
offences. The Crimes Act 1914 (Commonwealth) provides a separate
scheme for determining criminal responsibility of alleged offenders with a
mental illness and as commonwealth law prevails over state law;
Queensland has no jurisdiction to provide for decisions in Commonwealth
offences.
Clause 61 specifies the circumstances in which Division 2 applies.
Clause 62 gives a Supreme or District Court power to order a plea of not
guilty be entered for a person if the person pleads guilty to an indictable
offence. The order applies to both an indictable offence the person is
charged with, and a summary offence if the summary offence is to be heard
by the Court (section 651 of the Criminal Code gives the Supreme or
District Court the power to hear a summary offence). On making the order,
the Court is required to adjourn the trial, refer the matter of the person's
mental condition relating to the offence to the Mental Health Court, and
make an order remanding the person in custody or granting bail.
The clause also clarifies that the Court has the option of remanding the
person to be detained as a classified patient at an authorised mental health
service by making a court assessment order under Division 1.
Clause 63 sets out how a reference is made to the Mental Health Court
by the Supreme or District Court.
Division 3--Persons having a mental illness in lawful custody
Clause 64 states that the provisions of this Part about custodian's
assessment authorities apply to a defendant or accused person in custody or
a person serving a sentence of imprisonment or detention under a court
order.
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Clause 65 empowers a person's custodian (as defined) to make a
custodian's assessment authority. The order is a pre-requisite to being
detained in an authorised mental health service.
Clause 66 requires that before a custodian's assessment authority can be
made, the custodian must be given a recommendation and agreement for
assessment, that are in force for the person. Note that it is sufficient for the
custodian to be given a facsimile copy of the documents.
Part 4--Detention as classified patient on completion of
assessment documents
Division 1--Preliminary
Clause 67 states that the provisions about the detention of a person as a
classified patient apply to circumstances where either a court assessment
order or a custodian's assessment authority is in force for the person.
Division 2--Provisions about taking person to, and detaining person in,
authorised mental health service
Clause 68 requires the person to be taken as soon as practicable to the
in-patient facility of the authorised mental health service stated in the court
assessment order or custodian's assessment authority. A police officer,
correctional officer or detention centre officer is empowered to take the
person to the health service.
Clause 69 authorises the person's detention as a classified patient at the
authorised mental health service until the patient ceases to be a classified
patient. The person's detention starts on production of the request for
assessment and court assessment order or custodian's assessment authority.
The authorised mental health service will already have the agreement for
assessment. The clause also sets out the circumstances under which a
patient ceases to be a classified patient.
Clause 70 sets out who must be told about the patient's admission as a
classified patient.
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Mental Health
Division 3--Assessment and treatment as classified patient
Clause 71 requires an authorised doctor to make an initial assessment of
a classified patient within 3 days of the patient's admission. An authorised
doctor is a medical practitioner who has the necessary expertise or
experience to exercise the powers under the legislation, and is appointed by
the administrator of an authorised mental health service.
The classified patient scheme ensures an offender can receive assessment
and treatment for mental illness in an authorised mental health service if no
other option is available. The purpose of the initial assessment is firstly, to
confirm that the patient needs treatment for their mental illness under the
classified patient scheme, and secondly, to determine whether the patient
requires involuntary treatment.
It is not necessary for the patient to require involuntary treatment to
remain a classified patient because, under the scheme, the patient is able to
consent to treatment. However, if the treatment criteria do apply, the
authorised doctor may make an involuntary treatment order under Chapter
4. Note that if the patient is already under an involuntary treatment order, no
further authority is required to treat the patient involuntarily. Also, if the
patient is under the community category of an involuntary treatment order,
the category must be changed to in-patient (see clause 119). A classified
patient can only receive treatment as an in-patient in the health service or
undertake limited community treatment (as set out in Chapter 4, Part 2,
Division 2).
The doctor may decide the patient does not need to be a classified patient
if, for example, the patient's treatment needs could be met by continuing
under the community category of an involuntary treatment order and being
returned to court or custody.
Clause 72 requires the authorised doctor to ensure a treatment plan is
prepared for the patient, if the patient is not returned to court or custody
following the initial assessment. The doctor is also obliged to talk to the
patient about the treatment under the treatment plan. The footnote clarifies
that the treatment plan must be prepared in accordance with Chapter 4, Part
2.
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Mental Health
Clause 73 sets out the administrator's responsibility to ensure the patient
is assessed at regular intervals by an authorised psychiatrist (as defined).
Note that the treatment plan is to state the intervals that the assessments are
to occur. The purpose of this clause is to provide authority to make further
decisions about whether the patient requires involuntary treatment and
whether the patient needs to continue to be treated as a classified patient.
Clause 74 provides that an authorised doctor (which includes the
authorised psychiatrist) must give the Director of Mental Health a report on
deciding that a patient does not need to be treated as a classified patient.
Division 4--Provisions about legal proceedings
Clause 75 suspends proceedings for any offence against a person for the
period the person is a classified patient. Commonwealth offences are
excluded, as these offences are subject to a separate legislative scheme.
Clause 76 aims to ensure that, on the resumption of proceedings for a
Commonwealth offence, the patient continues to be subject to the classified
patient scheme, and that inconsistent orders as to the patient's custody are
not made. It should be noted that this does not apply if the patient is
returned to court under Part 5 when no longer needing to be treated as a
classified patient.
Clause 77 clarifies that nothing prevents a classified patient from being
granted bail and that proceedings against the patient may be discontinued.
Clause 78 provides that if bail is granted, proceedings are discontinued or
proceedings for a Commonwealth offence are finally decided according to
law, the patient for whom the offence relates ceases to be a classified patient.
However, if the patient is awaiting the start or continuation of criminal
proceedings for additional offences or if the patient is serving a sentence, it
is intended the patient will continue to be a classified patient in relation to the
additional offences or sentence. If the patient ceases to be a classified patient
under this provision, nothing prevents the patient continuing to be an
involuntary patient under another provision of the Bill; eg. under an
involuntary treatment order or a forensic order.
Clause 79 sets out who must be given notice of the ceasing of classified
status for the patient.
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Mental Health
Division 5--What happens on patient ceasing to be classified patient
Clause 80 states that this Division applies to a person on ceasing to be a
classified patient.
Clause 81 requires that if the person is not under an involuntary treatment
order or forensic order (an order under Chapter 7, Part 7, authorising the
person's detention in an authorised mental health service for treatment or
care), the administrator of the treating health service must either
immediately discharge the person or arrange for the person's transfer to an
authorised mental health service that is not a high security unit.
Clause 82 aims to ensure that a person who is under an involuntary
treatment order cannot be detained in a high security unit without the
Director of Mental Health's approval on ceasing to be a classified patient. A
maximum 3 day period is provided to ensure that there is sufficient time to
seek the Director of Mental Health's approval where necessary (eg. if the
patient ceases to be a classified patient on a weekend or public holiday).
Part 5--Return of classified patients to court or custody
Division 1--Preliminary
Clause 83 provides that a classified patient is to be returned to court or
custody if one of the following occur:
· the patient no longer needs to be detained in the authorised mental
health service as a classified patient for treatment; or
· if the patient is receiving voluntary treatment--the patient asks to
be discharged from the authorised mental health service.
Clause 84 requires the administrator of a classified patient's treating
health service to give notice to the Director of Mental Health if a classified
patient receiving voluntary treatment asks to be discharged from the
authorised mental health service.
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Division 2--Patients under court assessment orders
Clause 85 states that the Division applies if one of the circumstances
mentioned in clause 83 occurs or the Director of Mental Health receives a
notice under clause 84 and a court assessment order was originally made for
the patient.
Clause 86 sets out who must be given notice that this Division applies to
the patient.
Clause 87 requires the patient to be brought before the appropriate court
or justices to be dealt with according to law as soon as practicable, but not
more than 3 days after the Commissioner of Police or Director of Public
Prosecutions receives the notice.
Division 3--Patients under custodian's assessment authorities
Clause 88 states that the Division applies if one of the circumstances
mentioned in clause 83 occurs or the Director of Mental Health receives a
notice under clause 84 and a custodian's assessment authority was
originally made for the patient.
Clause 89 requires the Director of Mental Health to decide whether a
patient awaiting the start or continuation of criminal proceedings should be
returned to court or custody. In most circumstances, a person who became
a classified patient on the making of a custodian's assessment authority will
be returned to the original place of custody. However, in some
circumstances, it would be more appropriate for the patient to be brought
before a court or justices to be dealt with according to law. Examples of
such circumstances include:
· a patient who was detained in a police watchhouse when the
custodian's assessment authority was made; and
· a patient who was not able to appear in court because of their
detention as a classified patient.
A decision to return the patient to court can only be made if the Director
of Mental Health is satisfied it is in the patient's best interests and it is
proper and expedient to do so.
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Clause 90 provides for a patient's return to custody if either of the
following apply to the patient:
· the patient is serving a sentence of imprisonment or detention
under a court order; or
· the Director of Mental Health has decided under clause 89 that the
patient should be returned to custody.
Clause 91 sets out who must be given notice when the patient is to be
returned to court.
Clause 92 requires the patient to be brought before the appropriate court
or justices to be dealt with according to law as soon as practicable, but not
more than 3 days after the Commissioner of Police or Director of Public
Prosecutions receives the notice.
Division 4--Miscellaneous provisions
Clause 93 states when the administrator's custody ends.
Clause 94 declares that the patient ceases to be a classified patient when
the administrator's custody of the patient ends. However, the patient may
continue to be an involuntary patient under another provision of the Bill; eg.
under an involuntary treatment order or a forensic order.
It should be noted that until a patient is returned to court or custody under
this Part, the patient may continue to be detained as a classified patient.
Clause 95 sets out who must be given notice of the ceasing of classified
status for the patient.
Part 6--Procedures following end of sentence or parole
Clause 96 states that this Part applies to a person who becomes a
classified patient while serving a sentence of imprisonment or detention
under a court order.
Clause 97 clarifies that nothing prevents a classified patient from being
granted parole. Parole is defined in the dictionary to include release under a
fixed release order under the Juvenile Justice Act 1992.
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Clause 98 requires the administrator to give notice to the Director of
Mental Health of the ending of the patient's period of imprisonment or
detention, or on the patient's parole.
Clause 99 declares that the patient ceases to be a classified patient at the
end of the patient's period of imprisonment or detention, or on the patient's
parole, unless the patient is also awaiting the start or continuation of
proceedings for an offence. However, the patient may continue to be an
involuntary patient under another provision of the Bill; eg. under an
involuntary treatment order or a forensic order.
Clause 100 sets out who must be given notice of the ceasing of classified
status for the patient.
Part 7--Detention in authorised mental health service
during trial
Part 7 provides a scheme for the detention of a person in an authorised
mental health service during an adjournment of the person's trial. The
purpose of this Part is to provide an avenue for a person who is otherwise
fit to plead to receive treatment or care to assist in the continuation of the
trial. Note that the person does not become a classified patient, and the
person can only be assessed or treated involuntarily under the processes
outlined in Chapters 2 and 4.
Clause 101 empowers a court to order a person's detention in an
authorised mental health service during an adjournment of the person's trial.
The court must be satisfied the person requires treatment or care in the
authorised mental health service, and have a current agreement for detention.
Clause 102 provides that an agreement for a person's detention may be
given by either the administrator of the authorised mental health service at
which the person is to be detained or the Director of Mental Health. A
young person cannot be admitted to a high security unit under this Part.
Clause 103 sets out when the administrator of an authorised mental
health service can give agreement for a person's detention at the health
service. The aim is to ensure that a the person is provided treatment or care
in the most suitable setting, given the person's criminal and psychiatric
history, as well as their treatment and security requirements.
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Clause 104 empowers the Director of Mental Health to give agreement
for a person's detention at a particular authorised mental health service in the
absence of an agreement by the administrator of that service. However, the
administrator must have first refused to give the agreement.
Clause 105 specifies that the agreement for detention can be acted on for
7 days after it is made.
Clause 106 provides authority for the person to be taken to the in-patient
facility of the authorised mental health service stated in the order, and
returned to court at the end of the adjournment.
Clause 107 enables the person to be detained in the authorised mental
health service stated in the order.
CHAPTER 4--TREATMENT OF PERSONS WHO
HAVE MENTAL ILLNESSES
Chapter 4 sets out the requirements for, and administration of,
involuntary treatment for mental illness. Under an "involuntary treatment
order" a person can be treated in the in-patient facility of an authorised
mental health service or in the community. Involuntary treatment in the
community means the person is required to undertake treatment through a
mental health service, whilst still living in the community. However, an
involuntary treatment order can only remain in force for as long as the
treatment criteria apply to the person.
Particular regulated and prohibited treatments and management
techniques are covered in Chapter 4 to ensure the rights of patients are
protected.
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Part 1--Involuntary treatment orders
Division 1--Making and effect of involuntary treatment orders
Clause 108 specifies that each and every one of the treatment criteria (set
out in clause 14) must be met for a person before an involuntary treatment
order can be made. Only an authorised doctor is empowered to make an
involuntary treatment order, on an assessment of the person under Chapter
2 or 3. An authorised doctor is a medical practitioner who has the necessary
expertise or experience to exercise the powers under the legislation, and is
appointed by the administrator of an authorised mental health service.
If the doctor who made the recommendation for assessment for the
person was a psychiatrist, the same psychiatrist cannot make an involuntary
treatment order. This is to ensure that a person's involuntary treatment is
not provided on the basis of an assessment or examination by a single
doctor.
The clause also specifies that a person cannot be treated under an
involuntary treatment order in a high security unit unless the person is a
classified patient or the Director of Mental Health has given prior
agreement.
Clause 109 requires the authorised doctor who makes the involuntary
treatment order to specify the category of the order. If the patient needs to
be treated as an in-patient, the category is "in-patient". If the patient does
not need to be treated as an in-patient, the category of the order is
"community". A classified patient can only be treated under the in-patient
category of an involuntary treatment order.
Clause 110 provides that the authorised doctor must ensure a treatment
plan is prepared for the patient.
Clause 111 aims to ensure that a patient is told about the making of the
order and the category, as well as their treatment under the accompanying
treatment plan. In addition, the authorised doctor must explain the basis on
which the involuntary treatment order is made.
Clause 112 provides that in certain circumstances there must be a further
examination within 72 hours by a psychiatrist to confirm that the treatment
criteria apply. A further examination must take place if:
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· the authorised doctor who made the involuntary treatment order
was not a psychiatrist, for example, a psychiatry registrar or
medical superintendent; or
· the assessment was carried out by audio visual link (by a
psychiatrist or another authorised doctor).
Note that the same psychiatrist can make the second examination if the
assessment was carried out by audio visual link. If the involuntary
treatment order is not revoked or confirmed by the end of the 72 hours, the
patient ceases to be an involuntary patient.
Clause 113 sets out who must be given notice of the making of an
involuntary treatment order for a patient.
Clause 114 enables a patient under the in-patient category of an
involuntary treatment order to be detained in the patient's treating health
service.
Clause 115 provides a single point of accountability for a patient's
treatment under an involuntary treatment order.
Clause 116 aims to ensure that a patient under an involuntary treatment
order is assessed at regular intervals by an authorised psychiatrist to
determine if the treatment criteria continue to apply to the patient. The
intervals for the regular assessments must be set out in the patient's
treatment plan (see clause 124).
Clause 117 sets out procedures to enable a patient to be brought back to
their treating health service and detained for treatment if the patient is
non-compliant with treatment under the community category of an
involuntary treatment order. However, before this action is taken, a doctor
must talk to the patient about their non-compliance and the consequences of
further non-compliance (ie. that they could be detained for treatment).
If the patient again fails to comply, a health practitioner is empowered to
take the person to the treating health service, with assistance from police if
necessary. After the treatment, the person must be returned to the place
from which the person was taken or to another place the person reasonably
asks to be taken. Note that if more urgent measures are required because,
for example, the patient is acutely unwell, the category of the involuntary
treatment order can be changed to in-patient under clause 119.
Clause 118 provides that an involuntary treatment order continues unless
revoked by an authorised doctor, the Director of Mental Health, the Mental
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Health Review Tribunal on a review or the Mental Health Court on an
appeal. Also, the order ends if the patient does not receive treatment under
the order for 6 months.
Division 2--Changing category of involuntary treatment orders
Clause 119 empowers an authorised doctor to change the category of an
involuntary treatment order if this is necessary because of the patient's
treatment needs, for example, if a patient no longer needs in-patient
treatment, the category would be changed to community. In addition, an
authorised doctor is required to change the category of an involuntary
treatment order in the following circumstances:
· to give effect to an order of the Mental Health Review Tribunal;
and
· if a patient under the community category becomes a classified
patient--to the in-patient category.
On making the change, the doctor must record the reasons for the change
and talk to the patient about the change, except where this is not reasonably
practicable. If the category is changed to in-patient, a health practitioner is
empowered to take the person to the treating health service, with police
assistance if necessary.
Clause 120 sets out who must be given notice of the change of category
of an involuntary treatment order.
Division 3--Revoking involuntary treatment orders
Clause 121 obliges an authorised doctor to revoke an involuntary
treatment order for a patient, if any or all of the treatment criteria no longer
apply to the patient.
Clause 122 empowers the Director of Mental Health to revoke an
involuntary treatment order for a patient if the Director is satisfied any or all
of the treatment criteria no longer apply to the patient.
Clause 123 sets out who must be given notice of the revocation of an
involuntary treatment order.
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Part 2--Treatment plans
Treatment plans are required for the following patients:
· patients under involuntary treatment and forensic orders;
· classified patients; and
· patients for whom the Mental Health Court has made an order
under clause 273(1)(b).
Division 1--Preparing and changing treatment plans
Clause 124 sets out what the treatment plan for a patient must state. The
purpose is to ensure accountability of the treatment a patient is to receive
involuntarily, including who is to provide the service and how often the
person is to be assessed.
In some circumstances, a patient may receive primary mental health
follow-up by a service that is not an authorised mental health service. For
example, a patient may be followed-up by a community health service or a
private psychiatrist. In these cases, the treatment plan must state the health
service and, if the patient is to be treated by a non-public sector mental
health service employee, the name of the practitioner (with the practitioner's
agreement). Note that reasonable force can only be used to give a patient
involuntary treatment at an authorised mental health service or when being
taken to an authorised mental health service.
Clause 124 also provides recognition of a patient's wishes as expressed
in an advance health directive. Previous and existing treatment regimes are
also to be taken into account in formulating the treatment plan. However,
these matters are not binding on the health practitioner setting out the
treatment plan, recognising that the treatment plan needs to be responsive to
the patient's particular needs at that time.
Clause 125 sets out who can change a patient's treatment plan. It ensures
that if a change is made, the change must be recorded, and the patient told of
the change. It is also intended to ensure that a patient's treatment plan is
consistent with any orders made by the Mental Health Review Tribunal or
Mental Health Court for the patient.
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Clause 126 requires that a patient's treatment plan is changed to reflect an
order by the Director of Mental Health transferring a patient from one
authorised mental health service to another.
Clause 127 requires that a patient's treatment plan be changed to reflect
the revocation by the Director of Mental Health of an approval for a
classified patient to undertake limited community treatment. In addition, an
authorised doctor must issue a notice under clause 507 requiring the patient
to return to the treating health service if the patient is not in the health
service.
Division 2--Limited community treatment
Division 2 provides a scheme for a patient's graded return to the
community whilst an in-patient (for example, when the patient is under a
forensic order, the in-patient category of an involuntary treatment order or a
classified patient). Limited community treatment may be authorised by an
authorised doctor and is documented under the patient's treatment plan.
Additional approval is required prior to authorising limited community
treatment for classified and forensic patients and patients detained in an
authorised mental health service under an order of the Mental Health Court
under clause 273(1)(b). The purpose of the independent approval process
for patients treated under more restrictive circumstances is to ensure the
safety of the patient and the general community. Chapter 14, Part 1
provides for the return of a patient to an authorised mental health service if
the patient fails to comply with involuntary treatment or the patient's
treatment needs change while undertaking limited community treatment.
Clause 128 clarifies that the limited community treatment scheme does
not apply to patients under the community category of an involuntary
treatment order, as these patients are already living in the community.
Limited community treatment is also not available to a patient for whom a
court has made an order under clause 101(2) or 337(5).
Clause 129 empowers an authorised doctor to allow a patient to
undertake limited community treatment. It sets out who must give
additional approval for forensic and classified patients and for patients
detained in an authorised mental health service under an order by the Mental
Health Court under clause 273(1)(b). Restrictions on when the Director of
Mental Health can give approval are also specified. Note that similar
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restrictions are placed on the Mental Health Review Tribunal and Mental
Health Court in giving approval. These are set out in Chapters 6 and 7
respectively.
Clause 130 requires the administrator of the patient's treating health
service to ensure an authorised doctor for the health service changes the
patient's treatment plan (by documenting an authority for limited
community treatment) to give effect to an order of the Mental Health
Review Tribunal or Mental Health Court for limited community treatment.
Clause 131 sets out what the treatment plan must state where limited
community treatment is authorised. Limited community treatment may be
authorised for periods extending from short periods on a daily basis, up to
longer continuous periods. However, this is limited to a maximum
continuous period of 7 days at a time for patients under involuntary
treatment orders (who are not also classified patients). This is to ensure that
consideration is given to changing the category of the involuntary treatment
order for the patient to the community category. As classified and forensic
patients do not have a "community" category available, the continuous
period is not limited.
Clause 132 specifies that a classified patient serving a sentence of
imprisonment or detention or a patient detained in an authorised mental
health service under an order by the Mental Health Court under clause
273(1)(b) must be accompanied by a health service employee whilst
undertaking limited community treatment.
Part 3--Regulated and prohibited treatments, seclusion and
restraint
An involuntary treatment order authorises the administration of
comprehensive treatment and care to a person who is an involuntary patient.
The purpose of this Part is to prohibit certain treatments and to regulate
other treatments or management techniques. Penalties are imposed for
contravening the restrictions on performing regulated treatment, or for
performing prohibited treatment.
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Division 1--Informed consent
This Division sets out the requirements to obtain informed consent for
certain treatments under this Part. Informed consent is required to perform
electroconvulsive therapy or psychosurgery on voluntary patients.
Clause 133 requires that a person must comply with the provisions of
this Division in order to give informed consent to treatments regulated in
this Part.
Clause 134 requires that a person must have the capacity to give
informed consent. "Capacity" is defined in the dictionary in Schedule 2.
Clause 135 requires that the consent must be in writing signed by the
person.
Clause 136 requires that the consent must be given freely and voluntarily
by the person and clarifies what the term "freely and voluntarily" means.
Clause 137 requires that a full explanation must be given to the person
about the treatment and specifies how the explanation must be given and
what information the explanation must contain.
Division 2--Electroconvulsive therapy
Clause 138 makes it an offence to perform electroconvulsive therapy
other than by complying with the requirements set out in this Division.
Clause 139 sets out the requirements that must be met in order for
electroconvulsive therapy to be authorised for voluntary and involuntary
patients in all circumstances except emergencies. For voluntary patients, the
patient must have given informed consent (in accordance with Division 1).
For involuntary patients, the Mental Health Review Tribunal must give
approval for the treatment. The approval process for the Mental Health
Review Tribunal is set out in Chapter 6. For both voluntary and involuntary
patients, a doctor at an authorised mental health service must perform the
treatment.
Clause 140 sets out the requirements that must be met in order to
perform electroconvulsive therapy on an involuntary patient in emergency
circumstances without the prior approval of the Mental Health Review
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Tribunal. Electroconvulsive therapy is only authorised without the prior
approval of the Mental Health Review Tribunal if a psychiatrist and the
medical superintendent of the authorised mental health service where the
treatment is to take place are satisfied that electroconvulsive therapy is
necessary to save the person's life or to prevent the person from suffering
irreparable harm. A psychiatrist and the medical superintendent must
certify that they are satisfied of these matters. Immediately after the
certificate is made, the psychiatrist must make a treatment application to the
Mental Health Review Tribunal under Chapter 6. The maximum period of
authorisation of the treatment under the certificate is 5 days. The Mental
Health Review Tribunal can then authorise further electroconvulsive therapy
after considering the application.
Division 3--Restraint
Clause 141 sets out the definition of "mechanical restraint" for the
purposes of this Division as the restraint of the person by the use of
mechanical appliance preventing the free movement of the person's body or
a limb of the person. The definition specifically excludes the use of a
surgical or medical appliance for the proper treatment of physical disease or
injury.
Clause 142 makes it an offence to use mechanical restraint on a patient in
an authorised mental health service other than by complying with the
requirements set out in this Division.
Clause 143 requires a doctor to authorise the use of mechanical restraint
and sets out the matters the doctor must be satisfied of before authorising its
use.
Clause 144 requires the doctor to make the authorisation by recording the
matters set out in the clause in the patient's clinical file.
Clause 145 requires the senior registered nurse on duty at the authorised
mental health service to ensure that the restraint is applied as authorised by
the doctor. The nurse must also ensure the patient's needs are met which
includes providing the things set out in the clause. The nurse must also
record the matters specified in the clause in the patient's clinical file.
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Clause 146 allows the senior registered nurse on duty to authorise the
removal of the restraint if the nurse is satisfied the patient can be safely
treated without the restraint.
Clause 147 requires the administrator of an authorised mental health
service, if requested by the Director of Mental Health, to send a report to the
Director of Mental Health about matters relating to the use of mechanical
restraint of patients in the service.
Division 4--Seclusion
Subdivision 1--Interpretation
Clause 148 sets out the definition of seclusion for the purposes of this
Division as the confinement of the patient at any time of the day or night
alone in a room or area from which free exit is prevented. The definition
specifically excludes confining an involuntary patient overnight for security
purposes in a high security unit or an in-patient facility of an authorised
mental health service prescribed under a regulation.
Subdivision 2--Prohibition of seclusion
Clause 149 makes it an offence to seclude a patient in an authorised
mental health service other than by complying with the requirements set out
in this Division.
Subdivision 3--Authorisation of seclusion
Clause 150 states who is empowered to authorise seclusion. Seclusion
can only be authorised for an involuntary patient and can never be
authorised for a voluntary patient.
Clause 151 sets out the test that must be satisfied before the seclusion can
be authorised.
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Clause 152 clarifies that the patient's consent is not necessary to
authorise the seclusion.
Subdivision 4--Provisions about seclusion authorised by a doctor
Clause 153 requires a written order by a doctor to be made to authorise
the seclusion of a patient, and specifies what must be in the order.
Clause 154 sets out the requirements to observe the patient when
secluded under the order of the doctor. Continuous observation is required
unless a doctor is satisfied that it is not clinically necessary to continuously
observe the patient while secluded. If the patient is not continuously
observed, the patient must still be observed at intervals of no longer than 15
minutes.
Clause 155 provides for a nurse to release the patient from seclusion
before the end of the period stated in the order, or to return the patient to
seclusion. The clause sets out the requirements that must be satisfied before
the nurse is authorised to seclude the patient or release the patient from
seclusion.
Subdivision 5--Provisions about seclusion authorised by senior
registered nurse
Clause 156 sets out what must occur if the senior registered nurse
authorises seclusion in urgent circumstances.
Clause 157 requires continuous observation of patient while in seclusion
under the senior registered nurse's authorisation.
Subdivision 6--General provisions about seclusion
Clause 158 requires the senior registered nurse on duty to ensure that the
patient's needs are met which includes providing the things specified in the
clause.
Clause 159 gives authority to the person who authorises the seclusion to
use the force that is reasonable in the circumstances to place the patient in
seclusion.
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Clause 160 requires the administrator of an authorised mental health
service, if requested by the Director of Mental Health, to send a report to the
Director of Mental Health about the seclusion of patients in the service.
Division 5--Other treatments
Clause 161 makes it an offence to perform psychosurgery other than by
complying with the requirements set out in this Division. Psychosurgery
can only be performed on voluntary patients if they have given informed
consent to the treatment under Division 1, and the Mental Health Review
Tribunal has given approval to the treatment. The processes for approval
from the Mental Health Review Tribunal are set out in Part 6 of Chapter 6.
Psychosurgery can never be performed on an involuntary patient because
informed consent is required to perform the treatment. In order to become
an involuntary patient, the person must either be incapable of giving
consent, or have refused the treatment.
Clause 162 makes it an offence to administer insulin induced coma
therapy or deep sleep therapy under any circumstances on any person
including voluntary and involuntary patients.
CHAPTER 5--MOVING, TRANSFER AND
TEMPORARY ABSENCE OF PATIENTS
The requirements for moving patients within authorised mental health
services and for transfers between authorised mental health services are set
out in Chapter 5. As a safeguard, only the Director of Mental Health or
Mental Health Review Tribunal may order the transfer of patients treated
under more restrictive orders. In addition, the Mental Health Review
Tribunal is empowered to approve an application for a patient to move out
of Queensland.
Under Chapter 5, the Minister may enter into an agreement with another
State or Territory to provide for the admission, transfer or return of a patient
to or from Queensland. To ensure access to mental health services for
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people living in border areas, an interstate agreement may also provide for
the community-based treatment of a patient living interstate from the
treating health service.
Chapter 5 also provides for a classified or forensic patient's temporary
absence on the Director of Mental Health's approval, for medical, legal or
compassionate reasons.
Part 1--Moving and transfer of patients
Division 1--Moving patients within authorised mental health services
Clause 163 provides for a patient to be moved from one facility to
another within an authorised mental health service. This includes physically
distant sites within the one authorised mental health service; for example,
between a community facility and an in-patient facility.
As a safeguard, the Director of Mental Health must be given notice of a
move between separate in-patient facilities within the authorised mental
health service if the patient is a classified or forensic patient. For example,
the Director of Mental Health must be notified where the patient is moved
between physically separate in-patient facilities in the same or different
towns if these are both part of the same authorised mental health service. It
should be noted that if a patient is moved to a facility located in a different
authorised mental health service, an order for transfer must be made.
However, it is not intended that a notice be issued where a patient is moved
between different wards of one in-patient facility.
Clause 164 authorises the administration of medication to the person
while being moved only if this is necessary to ensure the safety of the
patient or others. Where a doctor is satisfied this is the case, the medication
may only be administered by a doctor or registered nurse under the specific
instructions of a doctor.
The provisions in relation to the provision of non-consensual health care
under the Guardianship and Administration Act 2000 do not apply to the
giving of medication under this clause.
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Division 2--Transfers between authorised mental health services
Clause 165 empowers an authorised doctor or the Director of Mental
Health to order the transfer of an involuntary patient (other than a classified
or forensic patient) from one authorised mental health service to another. In
the case of a patient detained for assessment, a doctor who is not an
authorised doctor can also order the transfer. This is because, under Chapter
2, the assessment can occur in a hospital that is not an authorised mental
health service.
The clause also specifies that the Director of Mental Health's approval is
required to transfer the patient to a high security unit.
Clause 166 empowers the Director of Mental Health to order the transfer
of a classified or forensic patient or a person detained in an authorised
mental health service under a court order under clause 101(2), 273(1)(b) or
337(5).
Clause 167 sets out the test for the Director of Mental Health to give
approval for the transfer of an involuntary patient to a high security unit. It
also requires the Director of Mental Health to give notice to the Mental
Health Review Tribunal of an approval for a young patient to be transferred
to a high security unit. Under Chapter 6, Part 2 the Mental Health Review
Tribunal must review the young patient's detention in the high security unit
within 7 days.
Clause 168 authorises a health practitioner (and if necessary, with the
assistance of a police officer) to take the patient to the authorised mental
health service to which the patient is transferred.
Clause 169 requires the Mental Health Review Tribunal to be given
notice of the transfer.
Division 3--Moving and transfer of patients out of Queensland
Subdivision 1--Interpretation
Clause 170 is intended to exclude patients for whom criminal
proceedings have not been finalised or who are serving a sentence of
imprisonment or detention from the provisions about moving out of
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Queensland (for example, a forensic patient for whom the Mental Health
Review Tribunal is undertaking reviews of fitness for trial).
Subdivision 2--Moving of patients out of Queensland
Clause 171 sets out who can apply to the Mental Health Review Tribunal
for an approval that a patient move out of Queensland.
Clause 172 sets out who must be given notice of the hearing.
Clause 173 empowers the Mental Health Review Tribunal to grant or
refuse the application.
Clause 174 sets out whom the Mental Health Review Tribunal must give
notice of its decision to and when it must give reasons for the decision.
Clause 175 clarifies that an involuntary treatment order for a patient
remains in force in Queensland as long as the involuntary treatment order
would still be effective if the patient had not left the State.
Part 2--Interstate application of mental health laws
This Part is consistent with corresponding provisions under the mental
health legislation of other states and territories. It is intended that this will
enable recognition of corresponding interstate laws under an agreement
entered into by the Minister.
Division 1--Preliminary
Clause 176 empowers the Minister to enter into an agreement with
another State or Territory about the interstate application of mental health
legislation and the admission, transfer or return of a patient to or from
Queensland. The following provisions of this Part would only apply on
entering into the agreement.
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Division 2--Making involuntary treatment orders and exercise of powers
Clause 177 allows for an involuntary treatment order to be made for a
person who is not a resident of Queensland.
Clause 178 provides that a health practitioner (or other person authorised
by the Minister) can exercise a power or function in a participating State
conferred on them by an interstate agreement. For example, a health
practitioner may, under an interstate agreement, be authorised to provide
involuntary treatment to a patient under an involuntary treatment order who
resides interstate.
Clause 179 provides for the converse of clause 178; that is, subject to an
interstate agreement, a person authorised to exercise a power or perform a
function under a corresponding law can exercise or perform similar powers
or functions in Queensland.
Division 3--Interstate admissions and transfers of persons and patients
Clause 180 provides that, if assessment documents or an emergency
examination order have been made for a person, the person may be taken to
an interstate mental health service.
Clause 181 allows an involuntary patient to be transferred to an interstate
mental health service. Under the corresponding law, the patient would be
deemed to be an involuntary patient under a similar provision of that law.
Clause 182 provides that, if a person may be taken to and detained in an
interstate mental health service under a corresponding law, the person may
be taken to an authorised mental health service in this State. Under these
circumstances, it is to be deemed that the person has had assessment
documents made. This applies even if there are no documents presented to
the mental health service because, under the emergency provisions of some
interstate laws, particular persons are empowered to take a person to a
mental health service for assessment with no authorising documents. In
this case, the person will only be able to be detained in an authorised mental
health service for the time that is reasonable for an examination of the
person to decide if assessment documents need to be made.
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Clause 183 allows a person who is involuntarily detained for treatment in
an interstate mental health service to be transferred to an authorised mental
health service in this State. On admission, the person is deemed to have had
an involuntary treatment order made by an authorised doctor who is not a
psychiatrist to ensure that an assessment occurs within 3 days to decide if
the treatment criteria apply.
Division 4--Apprehension and return of persons
Clause 184 ensures that a person who is absent without leave from an
interstate mental health service, if found in Queensland, can be returned to
the interstate mental health service. The clause also allows for the person to
be taken to an authorised mental health service in Queensland if interim
treatment or care is necessary or if the person now resides in this State.
Clause 185 ensures that a patient who is found interstate can be returned
under Chapter 14, Part 1 to an authorised mental health service.
Part 3--Temporary absences
Clause 186 empowers the Director of Mental Health to approve a
classified or forensic patient's temporary absence from an authorised mental
health service for medical, legal or compassionate reasons. Conditions can
be placed on the absence if necessary, for example, that the person is to be
escorted while absent from the service.
CHAPTER 6--TRIBUNAL REVIEWS, NOTIFICATION
ORDERS AND TREATMENT APPLICATIONS
Chapter 6 sets out the matters that the Mental Health Review Tribunal
must review. These are:
· the application of the treatment criteria to a patient under an
involuntary treatment order;
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· the detention of young patients in high security units;
· patients under forensic orders; and
· the mental condition of persons to determine fitness for trial.
The Mental Health Review Tribunal also considers applications for:
· notification orders; and
· particular treatments regulated under the Act.
Part 1--Reviews by Tribunal for patients under
involuntary treatment orders
Clause 187 sets out the times at which the Tribunal must review the
application of the treatment criteria to a patient under an involuntary
treatment order. The clause provides for the mandatory review of a patient
within 6 weeks of an involuntary treatment order being made and
afterwards at intervals of no more than 6 months. Where a patient makes
application for a review within 6 weeks of the involuntary treatment order
being made, the Tribunal must conduct the review within 7 days. For an
application for review made after the first 6 weeks, the Tribunal must
conduct the review within a reasonable time. The Tribunal may carry out a
review at the same time as another review however if it does not, the review
on application does not effect the timing of the 6 monthly review. The
clause sets out what the Tribunal must have regard to when deciding
whether to carry out reviews for the patient at the same time.
Clause 188 provides that an application for review must be made in
writing, and that it may be made by the patient, a person on behalf of the
patient, or the Director of Mental Health.
Clause 189 sets out the persons to whom the Tribunal must provide
written notice of a hearing of a review, when it must be provided, and what
must be contained in the notice.
Clause 190 aims to ensure that the Tribunal gives consideration to
obtaining an independent opinion when reviewing patients for whom an
involuntary treatment order has been in force for more than 6 months.
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Clause 191 sets out the decisions the Tribunal may make on a review.
The clause sets out the matters the Tribunal must have regard to in making a
decision.
Clause 192 sets out the persons to whom the Tribunal must give a copy
of its decision. A notice must be given to the parties stating that a party may
appeal to the Mental Health Court and that a party may request written
reasons for the decision. The clause ensures that reasons are provided to the
parties to allow time for an appeal to be filed. However, a confidentiality
order made under clause 458 may displace the requirement to give reasons.
Clause 193 provides that it is the responsibility of the administrator of the
treating health service at the time of the patient's hearing to ensure that to the
Tribunal's decision is given effect.
Part 2--Reviews by Tribunal for young patients detained in
high security units
Clause 194 provides for the mandatory review of a young patient
detained in a high security unit within 7 days of admission to the unit and
afterwards at intervals of not more than 3 months. Where a patient makes
application for a review, the Tribunal must conduct the review within a
reasonable time. The Tribunal may carry out a review at the same time as
another review however if it does not, the review on application does not
effect the timing of the 3 monthly review. The clause sets out what the
Tribunal must have regard to when deciding whether to carry out reviews
for the patient at the same time.
The dictionary defines a young patient as an involuntary patient who is
under 17 years.
Clause 195 states that an application by or on behalf of a patient for a
review must be in writing and given to the Tribunal. An application can be
made at any time.
Clause 196 sets out the persons to whom the Tribunal must provide
written notice of a hearing of a review under this Part and what must be
contained in the notice.
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Clause 197 sets out the decisions the Tribunal may make on a review of
the detention of a young person in a high security unit and states the matters
the Tribunal must be satisfied of in determining that a young patient should
remain in a high security unit.
Clause 198 sets out the persons to whom the Tribunal must give a copy
of its decision. A notice must be given to the parties stating that a party may
appeal to the Mental Health Court and that a party may request written
reasons for the decision. The clause ensures that reasons are provided to the
parties to allow time for an appeal to be filed. However, a confidentiality
order made under clause 458 may displace the requirement to give reasons.
Clause 199 requires the administrator of the health service responsible
for the treatment or care of the patient to ensure the Tribunal's decision is
given effect.
Part 3--Reviews by Tribunal for forensic patients
Clause 200 provides for the timing of reviews of forensic patients. The
clause ensures that in circumstances where a patient is subject to more than
one forensic order, those orders are reviewed together. Where a patient
makes application for a review, the Tribunal must conduct the review within
a reasonable time. The Tribunal may carry out a review at the same time as
another review however if it does not, the review on application does not
effect the timing of the 6 monthly review. The clause sets out what the
Tribunal must have regard to when deciding whether to carry out reviews
for the patient at the same time.
Clause 201 provides that an application for review must be made in
writing and may be made by the patient, a person on behalf of the patient or
the Director of Mental Health.
Clause 202 sets out the persons to whom the Tribunal must provide
written notice of a hearing of a review under this Part and what must be
contained in the notice.
Clause 203 sets out the Tribunal's powers on a review. The clause
requires the Tribunal to first consider whether the patient should remain a
forensic patient. If it is decided the patient continues to require involuntary
treatment or care, the Tribunal must then decide whether a further order
relating to limited community treatment or transfer for the patient is
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appropriate. The clause ensures that where two or more forensic orders are
being reviewed for the patient, the decision of the Tribunal must be the same
for each order.
The clause sets out those matters the Tribunal must have regard to in its
decision on review. Further, in making the decision, the clause requires the
Tribunal to have regard to the restrictions in clause 204.
Clause 204 sets out the restrictions on the decisions the Tribunal can
make with respect to different classes of patients. The clause provides that
the Tribunal must not revoke a forensic order or place a forensic patient on
limited community treatment if the patient represents an unacceptable risk to
his or her safety or the safety of a member of the public on account of the
patient's mental illness or intellectual disability.
The purpose of the second subclause is to indicate that it is possible for
the Tribunal to revoke an order for a patient who has moved interstate.
However, the Tribunal is precluded from discharging a patient who has
been moved interstate unless the patient has been out of Queensland for at
least two years and the patient is unlikely to return to Queensland.
The Tribunal must not discharge a forensic patient who has been found
unfit for trial by a jury or the Mental Health Court unless proceedings for
the offence the subject of the finding have been discontinued. The Tribunal
in considering whether to grant limited community treatment must apply
criteria similar to that set down in section 16 of the Bail Act 1980.
Clause 205 sets out the persons to whom the Tribunal must give a copy
of its decision. A notice must be given to the parties stating that a party may
appeal to the Mental Health Court and that a party may request written
reasons for the decision. The clause ensures that reasons are provided to the
parties to allow time for an appeal to be filed. However, a confidentiality
order made under clause 458 may displace the requirement to give reasons.
Clause 206 requires the administrator of the health service responsible
for the treatment and care of the patient to ensure the decision of the
Tribunal is given effect.
Clause 207 provides that if the Tribunal revokes the forensic order, the
patient ceases to be a forensic patient. If there is more than one forensic
order for the patient, the Tribunal must hear them together. Accordingly, a
decision to revoke a forensic order must apply to all forensic orders for a
patient.
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Part 4--Reviews by Tribunal of mental condition of persons
to decide fitness for trial
Division 1--Conduct of reviews
Clause 208 requires the Tribunal to review the mental condition of a
person found unfit for trial (but not of a permanent nature) by the Mental
Health Court or for whom a jury has made a finding under section 613
(want of understanding of accused person) or under section 645 (accused
person insane during trial) of the Criminal Code.
This includes a person who is in custody in a place other than an
authorised mental health service following a jury finding under section 613
or section 645 of the Criminal Code.
Clause 209 provides for the timing of reviews under this Part. A review
of a patient's fitness for trial must be conducted every 3 months for a period
of 12 months from the date of the Court's decision or the jury's finding. If
the patient remains unfit for trial after 12 months, the Tribunal must then
review the fitness of the patient at least once every 6 months unless
proceedings for the relevant offence is discontinued. Where a patient makes
application for a review, the Tribunal must conduct the review within a
reasonable time. The Tribunal may carry out a review at the same time as
another review however if it does not, the review on application does not
effect the timing of the 3 monthly or 6 monthly review (as the case may be).
The clause sets out what the Tribunal must have regard to when deciding
whether to carry out reviews for the patient at the same time.
Clause 210 provides that an application for review must be made in
writing and may be made by the patient, by a person on behalf of the patient
or by the Director of Mental Health.
Clause 211 sets out the persons to whom the Tribunal must provide
written notice of a hearing of a review and what must be contained in the
notice.
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Mental Health
Clause 212 requires the Tribunal to make a decision about the person's
fitness for trial. On the last review within the first twelve months or on
subsequent reviews, the Tribunal must provide to the Attorney-General a
report about the person's mental condition in circumstances where the
Tribunal is of the opinion that the person is unlikely to become fit for trial
within a reasonable time.
Clause 213 sets out the persons to whom the Tribunal must give a copy
of its decision. A notice must be given to the parties stating that a party may
appeal to the Mental Health Court and that a party may request written
reasons for the decision. The clause ensures that reasons are provided to the
parties to allow time for an appeal to be filed. However, a confidentiality
order made under clause 458 may displace the requirement to give reasons.
Division 2--Procedures following reviews
Clause 214 applies if the Tribunal finds a person unfit for trial on the last
review within the first twelve months or on a subsequent review. The
Attorney-General is able to discontinue proceedings or defer a decision on
the matter. Subject to clause 215, the Attorney-General is not limited in the
number of times he or she can defer a decision. If the Attorney-General
decides to defer the decision the Tribunal must review the person's fitness at
least once every six months. The Tribunal is not precluded from reporting
again to the Attorney-General that the person is unfit for trial after having
completed a deferred review.
Clause 215 provides for the circumstances in which proceedings are
automatically discontinued. Where the Attorney-General has not ordered
proceedings to be discontinued or the Tribunal has not found a person fit for
trial, proceedings for the offence are deemed to be discontinued in the case
of offences which attract a maximum penalty of life imprisonment, at the
expiration of 7 years and for all other offences, at the expiration of 3 years
from the date of the original finding
The clause ensures that unauthorised periods of absence from the
authorised mental health service are not counted toward the prescribed
period.
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Mental Health
Clause 216 states that the person cannot be further proceeded against for
the offence if proceedings are discontinued by the Attorney-General or at the
end of the prescribed period under clause 215. The clause provides that
despite proceedings being discontinued, a forensic order remains in force.
Clause 217 provides that the Attorney-General may discontinue
proceedings at any time. The clause further provides that in circumstances
where the police or Director of Public Prosecutions discontinues the
prosecution, the person ceases to be a forensic patient for the offence. The
clause ensures any other forensic order remains in force.
Clause 218 sets out what occurs in circumstances where the Mental
Health Review Tribunal finds that a person is fit for trial. The person must
be returned to court within 7 days of the decision so the proceedings can be
recommenced.
Clause 219 provides for the interim custody arrangements for a forensic
patient against whom proceedings are to resume. The patient ceases to be a
forensic patient when the administrator's custody of the patient ends.
However the clause does not prevent any other forensic order remaining in
force.
Part 5--Notification Orders
Division 1--Interpretation
Clause 220 states that the Mental Health Review Tribunal has the power
to make a notification order about a forensic patient who has been found of
unsound mind by a jury or by the Mental Health Court.
Division 2--Making of notification orders
Clause 221 provides that the Tribunal may make an order giving a
person notice of a review, or of a review decision or notice of a decision
regarding where the patient is going to be detained. The clause sets out how
an application for a notification order is to be made.
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Mental Health
Clause 222 sets out how the Tribunal is to decide an application for a
notification. The president may elect to decide the application on the papers.
It is intended that the president would not take that course unless satisfied all
parties could be afforded natural justice in a decision reliant upon written
submissions.
If the hearing of the application is heard during a review, it is intended
that the review hearing be conducted separately to the hearing of the
notification order to minimise the risk of disclosure of confidential
information.
Clause 223 sets out the restrictions and limitations placed on the Tribunal
when making a decision about a notification order. The Tribunal must be
satisfied that the person for whom the order is to be made has sufficient
personal interest in the matter. In determining whether a person has
sufficient personal interest, the Tribunal must have regard to the matters
listed in the clause. However the considerations are not intended to be
exclusive and the Tribunal may take account of any other matter. The
Tribunal does not need to be satisfied of all or any of the matters listed; it
must simply consider the matters.
Clause 224 sets out the further matters to be considered by the Tribunal
before making an order if under clause 223 it has decided that a person has
sufficient personal interest.
Clause 225 provides that the Tribunal may impose conditions on the
order, for example, that the person for whom the order is made not disclose
to any other person information received about the patient during the course
of the hearing or as a result of the notification order.
Clause 226 provides for the distribution of the Tribunal's decision and its
reasons for the decision. In providing its reasons for the decision not to
make a notification order, it is not intended that the Tribunal will disclose
confidential information that would have formed part of the notification
order. In providing its reasons for its decision to the person in whose
favour the order is sought, the Tribunal must have regard to the principle
that a patient has a right to confidentiality and take it into account in
providing the reasons. However, this does not preclude the Tribunal from
disclosing matters of a confidential nature in the reasons for the decision if
this is appropriate.
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Clause 227 provides that if a notification order is made it is the
responsibility of the executive officer of the Mental Health Review Tribunal
to ensure that notices are given to the person in whose favour the order is
made.
Division 3--Variation and revocation
Clause 228 provides for the variation and revocation of notification
orders.
Part 6--Treatment Applications
Clause 229 allows a psychiatrist to make an application to the Mental
Health Review Tribunal for approval to administer electroconvulsive
therapy on an involuntary patient and sets out the requirements for the
application. This clause is to be read in conjunction with clause 233 which
sets out the matters the Tribunal must then be satisfied of before the
treatment is authorised.
Clause 230 allows a psychiatrist to make an application to the Mental
Health Review Tribunal for approval to perform psychosurgery on a person
and sets out the requirements for the application. Because of the
requirement that the psychiatrist must be satisfied that the person has given
informed consent to the treatment, the treatment can never be performed on
an involuntary patient. This clause is to be read in conjunction with clause
233 which sets out the matters the Tribunal must then be satisfied of before
the treatment is authorised.
Clause 231 requires the Mental Health Review Tribunal to hear the
application within a reasonable time after the application is made.
"Reasonable time" is not defined in the Bill because it may vary in specific
circumstances, for example to allow access to legal advice and travel time,
which may vary in different parts of the state. However if electroconvulsive
therapy has been performed in emergency circumstances under a certificate
given pursuant to clause 140, the Mental Health Review Tribunal must hear
the application within 5 days after the application is made.
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Clause 232 requires the Mental Health Review Tribunal to notify
specified people in applications for electroconvulsive therapy and
psychosurgery. The clause specifies what must be contained in the notice
and when the notice must be given.
Clause 233 requires the Mental Health Review Tribunal to be satisfied of
certain matters before authorising electroconvulsive therapy. The clause sets
out the matters the Mental Health Review Tribunal must be satisfied of
before approving psychosurgery.
The clause also states that the Mental Health Review Tribunal, in deciding
a treatment application for either electroconvulsive therapy or psychosurgery,
may give or refuse to give approval for the treatment. If the Mental Health
Review Tribunal gives approval for electroconvulsive therapy, the decision
must also state the number of treatments that may be given in a stated
period. It is anticipated that the applicant will indicate the number of
treatments sought in the application.
Clause 234 sets out to whom the Mental Health Review Tribunal must
give a copy of its decision. A notice must be given to the parties stating that
a party may appeal to the Mental Health Court and that a party may request
written reasons for the decision. The clause ensures that reasons are
provided to the parties to allow time for an appeal to be filed. However, a
confidentiality order under clause 458 may displace the requirement to give
reasons. The administrator is notified because if an appeal needs to be made
against the decision, the administrator will need to bring it to the attention of
the Director of Mental Health who has a right of appeal under Chapter 8.
CHAPTER 7--EXAMINATIONS, REFERENCES AND
ORDERS FOR PERSONS CHARGED WITH
OFFENCES
Chapter 7 provides for the examination of the mental state of persons
charged with offences when there is reasonable cause to believe the person
may not be criminally responsible or is unfit for trial.
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The Chapter sets down the process for enabling the Attorney-General or
the Mental Health Court to determine charges when the alleged offender has
a mental illness or intellectual disability. The Chapter provides a mechanism
to ensure that a person with a mental illness who is found not criminally
responsible for an offence receives treatment and care.
Part 1- Interpretation
Clause 235 provides that this Chapter does not apply to Commonwealth
offences. The Crimes Act 1914 (Commonwealth) provides a separate
scheme for determining criminal responsibility of alleged offenders with a
mental illness and as Commonwealth law prevails over state law,
Queensland has no jurisdiction to deal with federal offenders.
Part 2--Procedures for particular involuntary patients
charged with offences
Division 1--Preliminary
Clause 236 provides that the Part applies to a patient under an involuntary
treatment order or forensic order who is charged with an offence or a person
charged with an offence who subsequently becomes a patient under an
involuntary treatment order or forensic order.
Clause 237 provides that an administrator must advise the Director of
Mental Health of the application of this Part to a patient. The clause sets out
those persons requiring notice of the application of the Part. Nothing
prevents the Director of Mental Health from issuing notice of the application
of this Part independent of advice from the administrator.
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Mental Health
Division 2--Examination of patient and procedures following
examination
Clause 238 requires an examination of a patient to be conducted by a
psychiatrist upon the application of this Part to a patient. The clause sets out
those matters a psychiatrist must have regard to in conducting the
examination.
Clause 239 requires an administrator to provide a report on the
psychiatrist's examination to the Director of Mental Health within 21 days
of receiving the notice.
Clause 240 provides that the Director of Mental Health may refer the
matter of patient's mental condition relating to the offence to the
Attorney-General or the Mental Health Court. Restrictions are placed on
when the Director of Mental Health can refer a matter to the
Attorney-General and when the matter should be referred to the Mental
Health Court. It is intended that the Director of Mental Health refer less
serious offences to the Attorney-General and more serious offences to the
Mental Health Court.
Clause 241 provides that the Director of Mental Health may defer a
decision to refer a matter to the Attorney-General or the Mental Health
Court for up to two months. This ensures that in circumstances where
proceedings against the person should continue, time is provided for the
person to become fit for trial.
If the patient remains unfit for trial, the Director must refer the matter to
the Attorney-General or the Mental Health Court.
Clause 242 provides how the Director of Mental Health refers a matter to
the Attorney-General or the Mental Health Court. If the Director of Mental
Health refers a matter to the Attorney-General it is intended that the Director
will indicate whether the patient is fit for trial or not.
Division 3--Miscellaneous
Clause 243 provides that upon the application of the Part (while the
patient remains under an involuntary treatment order or forensic order and
continues to have outstanding charges) proceedings are suspended until a
decision has been made about the charges.
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Mental Health
Clause 244 provides that a court may grant bail or the prosecution for an
offence may be discontinued despite a patient being subject to this Part.
Clause 245 provides who must receive notice that this Part no longer
applies to a patient.
Part 3--Procedure on Reference to Attorney-General
Clause 246 provides that this Part applies when the Director of Mental
Health refers a matter to the Attorney-General.
Clause 247 sets out the Attorney-General's powers on a reference and
what matters the Attorney must have regard to in making a decision on a
reference. The clause clarifies that the Attorney may order proceedings
against a person continue despite the person remaining under involuntary
treatment.
Clause 248 provides that the Attorney-General must advise the Director
of Mental Health of the Attorney-General's decision to ensure appropriate
actions are taken by the mental health service.
Clause 249 provides how the Attorney-General refers a matter to the
Mental Health Court.
Clause 250 sets out what occurs if the Attorney-General directs that
proceedings continue. The person must be served personally with a notice
informing the person that proceedings are to continue. This is to ensure that
the person has knowledge of the return date of the matter before the Court.
Clause 251 provides that if the Attorney-General orders proceedings be
discontinued the charge is dismissed.
Clause 252 sets out the notices to be issued by the chief executive of
justice if the Attorney-General directs that proceedings be discontinued.
Clause 253 provides that if the person is a classified patient and
proceedings are discontinued or continued the patient ceases to be a
classified patient for the relevant offence. The fact that the charge is
dismissed does not prevent the person from remaining or being made an
involuntary patient under another provision of this Act, for example, under
an involuntary treatment order or forensic order.
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Clause 254 sets out who must be told if a patient ceases to be classified
patient.
Clause 255 provides that this Part does not prevent the prosecution of the
offence being discontinued despite a reference being made to the
Attorney-General under this Part.
Part 4--References to Mental Health Court generally
Clause 256 sets out the application of this Part. Before a reference can be
made to the Mental Health Court, there must be reasonable cause to believe
a person is mentally ill or was mentally ill at the time of the alleged
indictable offence or has an intellectual disability to a degree that raises
issues of unsoundness of mind, diminished responsibility or fitness for
trial. It is intended that reasonable cause to believe will be something more
than suspicion. Further, it is expected, although not mandatory, that the
opinion of an expert will be sought before a reference is made under this
Part. It is not intended that a reference be made by the Director of Public
Prosecutions on the basis that the person may raise diminished
responsibility at his or her trial.
Clause 257 provides for who may refer a matter to the Mental Health
Court. Although under clause 256 it is necessary to be charged with an
indictable offence to invoke the jurisdiction of the Court, a simple offence
may also be referred to the Court if an indictable offence is before the Court.
The simple offence does not have to arise out of the same incident or facts
to be referred under this clause.
Clause 258 sets out how a reference is made.
Clause 259 provides that upon a reference being made to the Mental
Health Court under this Part, proceedings for an offence allegedly
committed by the person are suspended.
Clause 260 provides that a court may grant bail or the prosecution of the
offence can be discontinued despite the matter having been referred to the
Mental Health Court.
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Part 5--Withdrawal of References to Mental Health Court
Clause 261 sets out who may withdraw a reference to the Mental Health
Court. The clause allows the person who made the reference to withdraw it.
Further, if the reference was made by the Director of Mental Health or the
Attorney-General and the person ceases to be subject to an involuntary
treatment order or forensic order, the person may withdraw the reference.
Clause 262 requires the registrar to give notice of an application to
withdraw a reference to the other parties to the proceeding. A notice is not
required if the application to withdraw the reference is made at the hearing
of the reference.
Clause 263 sets out the Court's powers on deciding the application to
withdraw a reference. For example, the Court may decide not to grant an
application to withdraw a reference by the person the subject of proceedings
in circumstances where it appears on the evidence available to the Court that
the person does not understand the nature of their decision to withdraw the
reference or if a person is not fit for trial.
Part 6--Inquiries on References to Mental Health Court
Division 1--Preliminary
Clause 264 provides who the registrar must notify of the reference to the
Court.
Clause 265 provides the documents to be disclosed by the parties. Each
party must disclose all expert's reports in their possession relevant to the
inquiry being conducted by the Court. This applies even if a report is
detrimental to the party's position on the matter.
Clause 266 sets out who the registrar must notify about the hearing of the
reference.
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Mental Health
Division 2--Hearing of reference by Mental Health Court
Clause 267 sets out those matters to be decided by the Mental Health
Court. Subject to a dispute under clause 268 or 269, the Court must decide
whether the person was of unsound mind when the alleged offence was
committed. If the charge is murder and the Court finds the person was not
of unsound mind, the Court must decide whether the person was of
diminished responsibility when the alleged offence was committed.
Clause 268 provides that the Court must refrain from making a decision
about unsoundness of mind or diminished responsibility if the Court is
satisfied there is reasonable doubt the person committed the offence. It is
intended that a reasonable doubt might exist on the facts themselves, or
because the person the subject of the reference is putting the facts in dispute.
If the person is putting the facts in dispute, the Court may still proceed to a
finding if the dispute arises as a consequence of the person's mental
condition. For example the person has a delusional belief about the facts.
The clause also gives the Court the flexibility to substitute charges where
the Court is satisfied there is reasonable doubt the person committed the
disputed offence. As the Court makes a determination about the person's
mental state at the time of the act or omission that gives rise to the offence,
the alternative offence must share the mental condition that existed at that
time. The alternative offence must also not be disputed.
Clause 269 provides that the Court must refrain from making a decision
when a fact substantially material to the opinion of an expert is in dispute.
However, it is not intended to oust the jurisdiction of the Court by virtue
only of a disagreement between experts. The Court must be satisfied that as
a result of the dispute it is unsafe to make a decision.
Clause 270 sets out when the Mental Health Court must decide fitness
for trial.
Clause 271 provides that the Mental Health Court must decide if the
unfitness is of a permanent nature.
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Division 3--Provisions about continuing proceedings
Subdivision 1--Orders about continuing proceedings and custody
Clause 272 provides that if the Mental Health Court finds a person fit for
trial proceedings against the person continue according to law.
Clause 273 sets out the orders the Court may make if proceedings for the
offence are continued. The clause gives the Court the power to order that a
person be detained in an authorised mental health service until the person is
brought before a court for resumption of proceedings or bail is granted to
the person. It is intended that a mention of the matter in the court in which
proceedings are to resume would be a resumption. However, an
unsuccessful application for bail before a Supreme Court judge in chambers
would not, for the purposes of this clause, be a continuation of proceedings.
Subdivision 2--Detention in authorised mental health service
Clause 274 provides that this Subdivision applies if the Mental Health
Court orders the detention of a patient in an authorised mental health service
under clause 273(1)(b).
Clause 275 provides that the Mental Health Court may approve limited
community treatment for the patient and sets out the test that must be
applied before approving limited community treatment.
Clause 276 requires the registrar to notify the Director of Mental Health
of the Court's order detaining the patient in an authorised mental health
service.
Clause 277 authorises the patient's detention in a health service.
Clause 278 provides that a treatment plan must be made for the patient. It
should be noted that this scheme does not authorise involuntary treatment.
Clause 279 provides that an administrator must ensure the patient is
treated or cared for in accordance with the treatment plan.
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Mental Health
Division 4--Provisions about staying proceedings
Clause 280 provides that proceedings against a person who is found unfit
for trial are stayed until the Mental Health Review Tribunal finds the person
is fit for trial. A finding that a person is unfit for trial does not preclude the
prosecution of the offence being discontinued.
Division 5--Provisions about discontinuing proceedings
Clause 281 provides that if a person is found of unsound mind at the
time of the offence proceedings for the offence are discontinued and further
proceedings cannot be taken against the person for the offence unless the
person elects, under Part 8, to be brought to trial.
Clause 282 provides that if the Mental Health Court decides a person
charged with murder was of diminished responsibility at the time of the
offence, proceedings for the charge of murder are discontinued. However,
proceedings may be continued for another offence, for example,
manslaughter.
Clause 283 provides that if a person is found permanently unfit for trial
proceedings for the offence are discontinued and further proceedings cannot
be taken against a person for the offence.
Division 6--Material submitted by non-parties
Clause 284 provides for the submission and consideration of non-party
material by the Mental Health Court. It is intended that the Court will only
accept material under this clause if it is relevant to the decision the Court is
making. For example, a sworn statement by a carer as to their observations
of the person at or about the time of the alleged offence. Conversely, a
statement by a victim as to the impact the offence has had on them would
not be relevant to the decision of the Court.
Clause 285 provides that the Mental Health Court must give reasons in
its decision for taking or not taking into account material submitted by a
non-party under clause 284.
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Mental Health
Division 7--Miscellaneous provisions
Clause 286 provides to whom the registrar and chief executive for justice
must give copies of the decisions and orders of the Mental Health Court.
Clause 287 sets out when the classified patient status ceases for a
classified patient on a decision on the reference.
Part 7--Forensic patients
Division 1--Forensic orders by Mental Health Court
Clause 288 sets out when the Mental Health Court may make a forensic
order. The clause provides the Court with discretion to make an order but
sets out those matters the Court must have regard to in deciding whether to
make an order. However, the clause provides that the Court must make a
forensic order for a person who has been found unfit for trial.
The clause provides that a forensic order can only be made in relation to
those indictable offences committed by the person.
Clause 289 sets out the matters the Court must have regard to before
ordering or approving limited community treatment for a forensic patient.
Clause 290 provides that upon the making of a forensic order any
involuntary treatment order the patient was under ceases to have effect
because the forensic order authorises treatment of the patient.
Clause 291 provides to whom the registrar must give notice about the
making of a forensic order.
Clause 292 provides for the taking of the patient to an authorised mental
health service.
Clause 293 provides for the detention of the patient in an authorised
mental health service.
Clause 294 requires the administrator of the authorised mental health
service responsible for the patient's treatment or care to ensure that the
forensic order (including any order or approval for limited community
treatment) be given effect.
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Mental Health
Clause 295 provides that the administrator must advise the patient's
allied person of the making of a forensic order.
Clause 296 requires a treatment plan to be made for the patient. For a
person with an intellectual disability it is intended that the treatment plan will
be adapted to address relevant aspects of the person's care.
Clause 297 provides that the administrator must ensure the patient is
treated or cared for in accordance with the treatment plan.
Clause 298 provides that the patient be regularly assessed to decide
whether the patient should continue to be under the forensic order. If the
authorised psychiatrist decides the person does not need to be under the
forensic order, an application can be made to the Mental Health Review
Tribunal for revocation of the order.
Division 2--Forensic orders following jury findings
Subdivision 1--Preliminary
Clause 299 provides that the Division applies to a person for whom a
jury has made a finding under sections 613 (Want of understanding of
accused person), 645 (Accused person insane during trial) and 647
(Acquittal on ground of insanity) of the Criminal Code and the court has
either ordered the person be detained in an authorised mental health service
under the provisions of this Act ("forensic order (Criminal Code)") or the
court has ordered the person be otherwise kept in custody (a "custody
order").
Subdivision 2--Notices of orders and references
Clause 300 provides that the registrar of a court must give notice of an
order being made under this Part to the Chief Executive of the Department
of Justice and the Director of Mental Health.
Clause 301 provides that when a custody order or forensic order
(Criminal Code) has been made by a court pursuant to a jury finding under
section 613 or 645 of the Criminal Code or a "forensic order (Criminal
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Mental Health
Code)" has been made following a section 647 finding, the Director of
Mental Health must refer the matter of the person's mental condition to the
Mental Health Review Tribunal. The Mental Health Review Tribunal then
reviews the person's mental condition under Chapter 6.
Subdivision 3--Forensic orders by Minister
Clause 302 empowers the Minister to order that a person subject to a
custody order be admitted to and detained in an authorised mental health
service.
Clause 303 provides for the detention of a patient in an authorised mental
health service until the patient ceases to be a forensic patient.
Clause 304 requires the Minister to advise the Mental Health Review
Tribunal of the making of a "forensic order (Minister)" to facilitate the
review of the person's status as a forensic patient.
Clause 305 provides for the taking of a patient to the treating health
service.
Subdivision 4--Miscellaneous provisions
Clause 306 requires the administrator to notify the patient's allied person
of the making of a "forensic order (Criminal Code)" or "forensic order
(Minister)".
Clause 307 requires a treatment plan to be made for the patient.
Clause 308 provides that the administrator must ensure the patient is
treated or cared for in accordance with the treatment plan.
Clause 309 provides that the patient be regularly assessed to decide
whether the patient should continue to be under the forensic order. If the
authorised psychiatrist decides the person does not need to be under the
forensic order, an application can be made to the Mental Health Review
Tribunal for revocation of the order.
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Part 8--Right to trial retained
Clause 310 provides that this Part applies to a person found of unsound
mind by the Mental Health Court.
Clause 311 provides that a person may elect to be tried for the offence
about which the Mental Health Court decided the person was of unsound
mind at the time it was committed. The person must make the election to
go to trial within 28 days of the Mental Health Court's decision. A person's
election to go to trial does not preclude the person from entering a plea of
guilty.
Clause 312 requires the Attorney-General to ensure proceedings against
the person are re-commenced within 28 days after receiving the notice. It is
intended that proceedings be resumed from the point at which they were
suspended. Accordingly, if a person has been committed for trial then
proceedings would resume in the District or Supreme Court as applicable.
Resumption may be by presentation of an indictment in a superior court or
by having the person re-charged for the purposes of the Magistrates Court
or Children's Court.
If the Attorney-General reasonably believes the person is not fit for trial,
the Attorney-General is not precluded from referring the matter to the
Mental Health Court to have the matter determined. Proceedings must be
resumed before a reference may be made. If a person is found unfit for trial
the forensic order will run parallel with the forensic order on the unsound
mind finding.
Clause 313 provides that a forensic order for the patient continues until
the matter is finally decided, for example, a jury acquits the person, or the
person is sentenced. A decision to discontinue prosecution for the offence
will be a final decision.
Part 9--Admissibility and use of evidence
Clause 314 defines "expert's report" for the purposes of this Part.
Although it is intended that an expert's report will include a person's
medical records, it is only intended to include within the definition those
records that relate to the person's mental condition. For example, a record
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Mental Health
relating to a previous admission to hospital for a sports injury is not
intended to be covered by this definition.
Clause 315 sets out when a report or document that was received in
evidence by the Mental Health Court is admissible at the trial of the person.
Clause 316 provides that a statement during a hearing made by a person
the subject of a reference is inadmissible in any civil or criminal proceeding
(other than for contempt) regardless of whether or not the statement was on
oath. It is not intended that a person the subject of a reference be compelled
to give evidence in the Mental Health Court.
Clause 317 provides that the person's mental condition may be raised at
trial but the decision of the Mental Health Court is inadmissible.
Clause 318 provides that the treating health service and the Mental Health
Review Tribunal may use expert's reports that were before the Mental
Health Court. The use of the report by any other person may only be with
the leave of the Mental Health Court.
CHAPTER 8--APPEALS
Part 1--Appeals against Tribunal decisions
Division 1--Making and hearing appeals
Clause 319 sets out the decisions of the Mental Health Review Tribunal
that are appealable to the Mental Health Court.
Clause 320 sets out who may appeal a decision of the Mental Health
Review Tribunal to the Mental Health Court. A person may appeal on
behalf of the patient. For example, a parent who appeals (without the
consent of the patient) because they are dissatisfied with a decision to revoke
an involuntary treatment order on the basis that the decision is premature, is
not appealing on behalf of the patient.
Clause 321 provides the time within which an appeal must be started.
The notice of appeal must be in the approved form.
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Clause 322 requires that a notice that an appeal has been filed must be
given to the parties and the Mental Health Review Tribunal. Also, notice of
the hearing of the appeal must be given to the parties and the Mental Health
Review Tribunal.
Clause 323 provides that the Mental Health Court may order a stay of a
Mental Health Review Tribunal decision pending the hearing of the appeal.
It is intended that the Court may inform itself on the issue of the stay in any
way it sees fit. It is intended that the Court may determine the stay on the
papers.
Clause 324 sets out who must be given notice of the Mental Health
Court's decision if the Court orders a stay of a decision by the Mental
Health Review Tribunal pending the hearing of the appeal. It should be
noted that the Attorney-General is a party to a hearing of a patient's mental
condition to determine fitness for trial. It is intended that, on being notified
of the stay, the Attorney-General will cause the chief executive for justice to
issue the notices as required under this clause.
Clause 325 sets out the Mental Health Court's powers on an appeal.
Clause 326 sets out who must be given notice of the Court's decision.
Clause 327 provides that the decision of the Mental Health Court on an
appeal against a decision of the Mental Health Review Tribunal is final. No
appeal lies to the Court of Appeal.
Division 2--Participation and representation at appeals
Clause 328 sets out those persons who have a right of appearance at a
hearing of an appeal against a review decision.
Clause 329 sets out those persons who have a right of appearance at a
hearing of an appeal against a decision on a treatment application.
Clause 330 sets out those persons who have a right of appearance at a
hearing of an appeal against a decision on an application for approval that a
patient move out of Queensland.
Clause 331 provides that the Director of Mental Health can elect to
become a party to an appeal. In such circumstances, the Director has a right
of appearance on the appeal.
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Clause 332 provides that a patient's allied person or, with the leave of the
Court, some other person, may assist the patient during the hearing of an
appeal. Such a person may, for example, support the person or may assist
the Court by helping the patient represent the patient's views to the Court.
Division 3--Procedural provisions
Clause 333 sets out the hearing procedure for an appeal. An appeal is by
way of re-hearing. It is intended that the Court can consider material and
evidence not considered by the Mental Health Review Tribunal whether or
not that material was available to the Mental Health Review Tribunal at the
original hearing of the matter.
Part 2--Appeals against Mental Health Court decisions on
references
Clause 334 provides who may appeal a decision of the Mental Health
Court to the Court of Appeal.
Clause 335 provides the time for starting an appeal.
Clause 336 provides for the hearing procedures for appeals.
Clause 337 sets out the Court of Appeal's powers in deciding an appeal.
Clause 338 provides that a notice of the decision be provided to the
registrar of the Mental Health Court. It is intended that the registrar of the
Mental Health Court will deal with the notice of the decision as if it were a
decision of the Mental Health Court.
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CHAPTER 9--ALLIED PERSONS AND PARTICULAR
RIGHTS OF INVOLUNTARY PATIENTS
Part 1--Allied persons
Clause 339 defines an allied person for a patient as the person who is
chosen or declared under this Part to be the patient's allied person.
Clause 340 specifies the function of the allied person. The purpose of the
allied person is to help the patient to represent the patient's views, wishes
and interests relating to the patient's assessment, detention and treatment
under the Act. Whilst the clause sets out the general role of the allied
person, other provisions throughout the Bill provide specifically for the
involvement of the allied person at key points in the involuntary assessment
and treatment process. The allied person is notified at certain times and is
empowered to make applications to the Mental Health Review Tribunal on
behalf of the patient. The allied person also has the right to appear at
Tribunal hearings to assist the patient to represent the patient's views and
can appeal on behalf of the patient against decisions of the Mental Health
Review Tribunal.
Clause 341 enables the patient to choose a person to be their allied
person. The patient's ability to choose who they want to be their allied
person under this clause is subject to their having the capacity to make that
decision. It should be noted that the patient is presumed to have capacity to
make this decision according to the principle in clause 8(b).
If the patient has the capacity to make the decision about choosing an
allied person, the patient can choose not to have an allied person at all.
The patient can choose their allied person from the categories of people
listed in the clause. A patient does not have to appoint their guardian or
attorney as their allied person--they can choose an adult relative or close
friend or any other adult to be their allied person instead.
The person chosen as the patient's allied person must also be willing,
readily available and capable to perform the function of the allied person. It
is intended that the administrator of the authorised mental health service will
make the determination as to whether the person is willing, readily available
and capable to be the patient's allied person. People who are health service
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employees cannot be chosen to be an allied person. This is to ensure against
a conflict of interest arising between the allied person's subjective role in
relation to representing the patient's views and wishes and the health
service's objective role to provide appropriate treatment to the patient. It is
possible that the patient could choose a person who has also been a patient
to be their allied person, if they fall within the categories set out in the
legislation.
Clause 342 sets out how an allied person is chosen for the patient if the
patient does not have the capacity to make the decision to choose an allied
person. "Capacity" is defined in the dictionary in Schedule 2. The decision
as to whether the patient has the capacity to make this decision lies with the
administrator. However, the patient is to be presumed to have capacity to
make the decision by virtue of Principle (b) in Clause 8 of the Bill.
If the patient does not have the capacity to choose an allied person, and
the patient has given an Advance Health Directive stating who the allied
person is to be, the person stated in the Advance Health Directive is to be
the allied person.
If the patient has not stated who is to be their allied person in an Advance
Health Directive, or does not have an Advance Health Directive, the
administrator then chooses the allied person for the patient. The same
exclusion applies to the appointment of the allied person as when the patient
is choosing the allied person: the person must not be a health service
employee. The clause requires the administrator of the service to choose as
the patient's allied person the first person in the list set out for the patient in
clause 341 who is willing, readily available, capable and culturally
appropriate to be the patient's allied person.
The clause ensures that an allied person is always chosen for the person if
the patient is incapable of making a decision to choose their own allied
person. Default appointments are provided if no-one satisfies the test set
out in the clause. The Adult Guardian is the default appointment if the
patient is an adult. The Children's Commissioner is the default appointment
if the patient is a minor.
Clause 343 provides for circumstances when the allied person ceases to
act for the patient.
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Part 2--Rights of patients
Division 1--Statement of rights
Clause 344 ensures that a written statement about the rights of
involuntary patients is prepared by the Director of Mental Health. The
clause specifies what must be contained in the statement, as well as
providing for other matters to be included if the Director of Mental Health
considers it appropriate.
Clause 345 requires a copy of the statement of rights to be provided to
the patient on their involuntary admission to an authorised mental health
service. The statement is also required to be given to the patient's allied
person. The clause ensures that the patient understands the content of the
statement by requiring an oral explanation of the information in the
statement to be given to the patient in a language or way the patient is most
likely to understand. The way in which the explanation is provided must
also have proper regard to the patient's age, culture and any disability. If the
person giving the explanation to the patient believes the patient has not
understood the information, the person must record this in the patient's
clinical file.
Clause 346 ensures that the information in the statement of rights is
displayed in a prominent place in authorised mental health services.
Division 2--Examinations of, and visits to, involuntary patients
Clause 347 gives a health practitioner the authority to visit and examine
an involuntary patient in an authorised mental health service, as well as to
consult with an authorised doctor for the health service about the patient's
treatment. This can only occur at a reasonable time of the day or night.
The clause also gives a legal or other adviser authority to visit an
involuntary patient at any reasonable time of the day or night.
The authority given to the health practitioner, legal or other adviser can
only be exercised at the request of the patient, or someone else on behalf of
a patient and under arrangements made with the administrator of the health
service.
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CHAPTER 10--SECURITY OF AUTHORISED
MENTAL HEALTH SERVICES
Part 1--Interpretation
Clause 348 sets out specific definitions that apply in this Chapter.
Part 2--Provisions about postal articles and other things
received for patients in high security units
Clause 349 makes it an offence to interfere with postal articles for
patients in high security units, except as provided for under clause 350 when
the administrator is able to open or examine things received at the unit for a
patient. Interference with a postal article is also specifically allowed if the
person to whom the postal article is sent requests in writing for the article to
be withheld. However, in order to protect the patient's rights, the patient
cannot be prevented from sending postal articles to certain specified people
and organisations.
Clause 350 allows the administrator of a high security unit to open or
examine anything received at the unit for a patient. However certain
safeguards are provided to protect against the inappropriate use of this
power. The administrator may open or examine the thing only in the
patient's presence and after the administrator has told the patient that they
can request the presence of a lawyer at the opening. If the patient requests
their lawyer be present, the administrator can only proceed to open the thing
without the lawyer if it is not reasonably practicable to delay the opening.
The clause sets out what the administrator can do with the thing if
satisfied it constitutes a danger to the patient or to the security of the unit.
The clause also sets out what the administrator must reasonably believe in
order to exercise the power of seizure and requires the administrator to do
certain things once a matter is seized.
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Part 3--Searches
Division 1--Preliminary
Clause 351 provides a definition of patient for this Part.
Clause 352 provides that the purpose of this Part is to ensure the
protection of patients and the security and good order of authorised mental
health services. The Part achieves this by authorising the carrying out of
searches of patients in authorised mental health services and their
possessions, which includes high security units. Because of the additional
security needs of high security units, the Part authorises the search of
visitors to high security units and their possessions.
Division 2- Searches of patients and their possessions
Subdivision 1--Searches on reasonable belief of possession of harmful
things
Clauses 353 and 354 empower a doctor or the senior registered nurse on
duty to search a patient or their possessions if there is a reasonable belief a
patient in the health service has possession of a harmful thing. The doctor
or nurse can also authorise another health practitioner to search the patient or
the patient's possessions. However, before carrying out the search the
doctor or nurse must tell the patient the reasons for the search and how it is
to be carried out. These clauses are to be read in conjunction with
Subdivision 3 that sets out how the search must be carried out.
Subdivision 2--Searches of patients and their possessions on admission
or entry to high security units
Clause 355 empowers an authorised officer for a high security unit to
search the patient or the patient's possessions for the purposes of detecting
harmful things, and requires the officer to tell the patient the reasons for the
search and how it is to be carried out. "Authorised officer" is defined in the
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dictionary. This clause is to be read in conjunction with Subdivision 3 that
sets out how the search must be carried out.
Subdivision 3--Carrying out searches
Clause 356 states that this Subdivision applies only after the search has
been authorised under Subdivision 1 or 2.
Clause 357 sets out what the searcher is allowed to do in order to carry
out the search. Additional restrictions are placed on how the search is to be
conducted if more invasive searching techniques are used. If clothing other
than an outer garment or footwear is required to be removed, the approval
of the administrator of the authorised mental health service is required. In
addition, the searcher must be the same sex as the patient and the search is
required to be carried out in a part of a building that ensures the patient's
privacy.
In order to carry out the search, the searcher is authorised to use the help
and the force that is reasonable in the circumstances. It is recognised that
searching a patient without their consent is an infringement of the patient's
rights. Accordingly the searcher must carry out the search in a way that
respects the patient's dignity to the greatest possible extent and cause as little
inconvenience to the patient as is practicable in the circumstances to carry
out a proper search.
Clause 358 allows the searcher to seize any thing found during a search
that the searcher reasonably suspects is a harmful thing.
Clause 359 requires the administrator to take certain actions if reasonably
satisfied that the thing seized is harmful.
Subdivision 4--Miscellaneous
Clause 360 requires records to be made after searches have been
conducted in certain specified circumstances.
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Division 3--Searches of visitors to high security units, and their
possessions
Clause 361 empowers an authorised officer (ie. a health practitioner
providing mental health services at the unit or a security officer for the unit)
to search a visitor or their possessions and provides for the visitor to be
informed about matters relating to the search. This clause is to be read in
conjunction with clause 363 that sets out how the search must be carried
out.
Clause 362 obliges the visitor to comply with the request, and if they do
not, they will be denied permission to enter, or must leave the high security
unit. A penalty is imposed if the visitor is asked to leave the unit but refuses
to comply.
Clause 363 sets out what the authorised officer is allowed to do in order
to carry out the search, including requiring the visitor to leave a harmful
thing with the authorised officer while visiting the high security unit. If the
visitor refuses to submit to the search or refuses to leave the harmful thing
with the authorised officer, the visitor can be denied permission to enter the
unit, or be required to leave the unit. A penalty is imposed if the person
refuses to leave the unit on request.
Additional restrictions are placed on how the search is to be conducted if
more invasive searching techniques are used. It is recognised that searching
a visitor is an infringement of rights. Accordingly the searcher must carry
out the search in a way that respects the visitor's dignity to the greatest
possible extent and cause as little inconvenience to the visitor as is
practicable in the circumstances to carry out a proper search.
This clause should be read in conjunction with clauses 364 and 365
relating to how the visitor can restrict the nature of the search or request it to
stop.
Clause 364 allows the visitor to leave a thing in their possession with the
authorised officer until the end of the visit if they do not wish the thing to be
inspected.
Clause 365 allows the visitor to stop the search if the visitor then leaves
the unit immediately. A penalty is imposed if the visitor does not then leave
the unit immediately.
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Clause 366 ensures that the visitor's possessions are returned to the
visitor when requested and when the visitor is about to leave the high
security unit.
Clause 367 allows the authorised officer to seize a harmful thing found
during a search that the authorised officer reasonably believes is connected
with or is evidence of the commission or intended commission of an
offence.
Clause 368 requires the authorised officer to give a receipt for the seized
thing.
Clause 369 sets out what the administrator must do with a thing that is
seized.
Clause 370 sets out what happens if the thing that is seized is not
returned to the visitor.
Clause 371 allows the owner of the seized thing to have access to the
thing and do certain things, until it is either returned to the owner or
forfeited.
Division 4--Identity cards
Clause 372 requires the administrator of a high security unit to approve
identity cards for authorised officers for the unit.
Division 5--Compensation
Clause 373 enables a patient or visitor to claim compensation from the
State for any damage to their possessions that occurs in the exercise of a
power to search a patient or their possessions in authorised mental health
services. The claim for compensation can also be made for damage to
possessions in the course of a search of a visitor (or their possessions) to a
high security unit. The clause also sets out how the compensation can be
claimed and the test to be satisfied in order to be awarded compensation.
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Part 4--Exclusion of visitors
Clause 374 gives the administrator of an authorised mental health service
the power to refuse to allow a person to visit an involuntary patient in the
health service if the administrator is satisfied the proposed visit will
adversely affect the patient's treatment. An example of when the patient's
treatment would be aversely affected is if, on a previous visit by the person,
the patient's mental state deteriorated. If the person is excluded from visiting
the patient the person must be given reasons for that decision and be told
that they can ask for a review of the decision and how to request that the
review take place.
Clause 375 allows a person who is dissatisfied with the decision to
exclude a person from visiting a patient to appeal to the Mental Health
Review Tribunal against that decision.
Clause 376 sets out how to start the appeal.
Clause 377 sets out the procedure that must occur before the appeal is
heard, including the notices to be provided to specified persons.
Clause 378 allows the President of the Mental Health Review Tribunal to
grant a stay of the decision to exclude the person until the appeal is heard.
Clause 379 lists the powers of the Mental Health Review Tribunal to
confirm or revoke the decision that was appealed against.
Clause 380 requires the Tribunal to give a copy of the decision to the
parties to the appeal.
CHAPTER 11--MENTAL HEALTH COURT
Part 1--Establishment, constitution, jurisdiction and
powers
Clause 381 establishes the Mental Health Court.
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Clause 382 provides that the Mental Health Court is constituted by a
judge of the Supreme Court who must be assisted by 2 assisting
psychiatrists. The assisting psychiatrists do not constitute the Court. The
clause sets out the circumstances in which it may proceed to a hearing if
only 1 assisting psychiatrist is available.
Clause 383 sets out the jurisdiction of the Mental Health Court. The
clause enables the Court to inquire into the matter before it, unconstrained
by the limits of the adversarial process. The Court has a very wide
discretion as to the manner in which it informs itself, including the manner
in which it receives evidence.
Clause 384 confers on the Court wide powers to exercise its jurisdiction.
Part 2--Provisions about constituting judge of court
Clause 385 empowers the Governor in Council to appoint the
constituting judge of the Mental Health Court. The judge must be a current
member of the Supreme Court.
Clause 386 provides that a commission to constitute the Mental Health
Court does not otherwise affect the judge's tenure of office as a judge of the
Supreme Court.
Clause 387 sets out when the constituting judge holds office. The clause
provides the Governor in Council with discretion to continue the person in
office to complete a hearing in circumstances where the person otherwise
ceases to hold office.
Clause 388 gives the Governor in Council the power to appoint an acting
judge of the Mental Health Court. It is intended that the Governor in
Council will appoint an acting judge prospectively to ensure hearings are not
delayed due to the time required to appoint an acting judge.
Part 3--Provisions about assisting psychiatrists
Clause 389 sets out the functions of the assisting psychiatrists and limits
the advice they may provide to the Court.
Clause 390 provides for the appointment of assisting psychiatrists.
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Clause 391 sets out the terms of assisting psychiatrists' appointment.
Clause 392 sets out how an assisting psychiatrist may resign.
Clause 393 provides the Governor in Council with power to terminate
the appointment of an assisting psychiatrist. The clause sets out the
circumstances in which the Governor in Council may terminate an
appointment and those circumstances in which termination of an
appointment is mandatory.
Clause 394 empowers the Governor in Council to appoint an acting
assisting psychiatrist and sets out the circumstances in which such a power
may be exercised.
Part 4--Mental Health Court registry and registrar
Clause 395 establishes the Mental Health Court registry and the position
of registrar. The clause provides for the appointment of other staff.
Clause 396 sets out the functions of the registry.
Clause 397 sets out the functions of the registrar.
Clause 398 sets out the registrar's general powers.
Clause 399 gives the registrar the power to issue a subpoena under the
seal of the Mental Health Court. Failure to comply with the subpoena
without lawful excuse is contempt of the Mental Health Court.
Clause 400 confers on the registrar power to require documents in the
possession of a hospital administrator to be produced to the Court. The
clause expressly overrides any confidentiality provisions of any Act the
administrator would otherwise have been bound by.
The clause requires the Commissioner of Police or the Director of Public
Prosecutions to provide the registrar with the criminal history of a person
the subject of a reference. This will include criminal histories from interstate
that those agencies have access to.
Clause 401 confers on the registrar the power to require an administrator
or custodian to produce a patient or prisoner to the Court. It is intended that
the notice will be under the hand of the registrar.
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Clause 402 provides that the registrar may delegate a power. The power
to delegate is restricted to circumstances where the delegation is conferred
on an appropriately qualified staff member of the registry.
Part 5--Procedural provisions
Clause 403 expressly provides that a party to a hearing may be legally
represented. A party may be represented by an agent only with the leave of
the Court.
Clause 404 confers on the Court the power to hear evidence that may
otherwise be inadmissible if the strict rules of evidence were to apply. It is
intended that the Court's ability to inquire into a matter before it will not be
unnecessarily constrained by the application of the rules of evidence unless
the interests of justice dictate otherwise.
Clause 405 provides that no party bears an onus of proof, although a
party may bear a persuasive onus. Subject to clause 268, the standard of
proof to be applied by the Tribunal is on the balance of probabilities. The
civil standard applies even if it is the prosecution's reference to the Court.
Clause 406 provides that advice given to the constituting judge by the
assisting psychiatrists under clause 389 before the hearing of a matter may
be provided to the parties by the Court. If a party does not waive the right to
be given the advice, the Court must give the advice. It is a matter for the
Court to determine the manner in which it provides the assisting
psychiatrists' advice.
Clause 407 states that advice given by the assisting psychiatrists to the
Court during a hearing must be audible to the parties to ensure the openness
and accountability of the decision making.
Clause 408 provides that the Court must disclose in its reasons advice
received from the assisting psychiatrists that materially contributed to the
Court's decision. This will include advice received about the clinical
evidence after a hearing has been completed that has not otherwise been
provided to the parties but only if it is material to the decision of the Court.
Clause 409 gives the Mental Health Court the power to proceed in the
absence of the person subject of the hearing. However, the circumstances in
which this can occur are limited to when the Court is satisfied it is expedient
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and in the person's best interests. It is intended that the Court may excuse
the appearance of the person the subject of the hearing on application of a
party or of its own motion.
Clause 410 allows the Court to appoint persons to assist it during a
hearing. It is intended that the broad power will allow the Court to appoint
persons with, for example, particular language skills to assist in
interpretation or persons with specific cultural knowledge to assist the Court
in contextualising evidence. The Court may also use this clause to appoint a
person to assist the person the subject of the hearing to understand or endure
the proceedings.
Clause 411 allows the Court to regulate when and where it will sit.
Clause 412 provides that any hearing before the Mental Health Court
involving a young person (ie a person under 17 years) must be conducted in
a closed Court. The Court may permit a person to be present, for example, a
parent or guardian of the child.
Clause 413 provides that a hearing on a reference is open to the public.
The clause sets out the test to be applied in deciding whether to close the
hearing to the public.
Clause 414 provides that appeals (Chapter 8) and inquiries into detention
of patients in an authorised mental health service (Chapter 11, Part 9) must
not be open to the public. Due to the personal and confidential nature of the
material under consideration, the Court is required to apply a threefold test
before proceedings can be opened to the public.
Clause 415 provides that the Court does not have power to make an
award of costs against a party to a proceeding.
Part 6--Protection and immunities
Clause 416 sets out the Mental Health Court's power to deal with
contempt of court.
Clause 417 provides protection against double jeopardy in circumstances
where conduct before the Mental Health Court gives rise to a contempt of
the Court and another offence against this or another Act.
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Clause 418 provides that the constituting judge of the Mental Health
Court enjoys the usual protection and immunities of a judge of the Supreme
Court.
Part 7--Rules and practices
Clause 419 confers on the Governor in Council the power to make rules
under this Act. The clause requires rules relating to the Mental Health Court
or registry to be made only with the consent of the constituting judge. The
clause sets out those matters about which rules can be made.
Clause 420 gives the constituting judge power to give directions about
the practice and procedure of the Court.
Clause 421 sets out the forms the Mental Health Court may approve
under this Act.
Part 8--Examination and confidentiality orders
Clause 422 states that the Court may order a person the subject of a
proceeding to submit to an examination (a "court examination order") by a
psychiatrist or health professional. The examining practitioner must provide
a written report to the Court on the matters the Court requests. The clause
provides the Court with the power to ensure that matters are properly
investigated and that appropriate and adequate expert opinion is available to
the Court.
Clause 423 provides that the assisting psychiatrists may recommend, or
the Director of Public Prosecutions may request, the Court to make a court
examination order. It is intended that in most cases, the Court will make
these orders outside a hearing. Accordingly, the clause provides that parties
may make written submissions on the recommendation or request.
Clause 424 provides the Court with the power to order a person who is
subject to a court examination order to be detained in a health service. This
power ensures that a person is properly examined in circumstances where,
for example, in-patient observation is necessary or the person is
uncooperative. However, before making the order the Court must be
satisfied that there is no less restrictive way to ensure the appropriate
examination takes place.
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The clause limits the detention of the person under this clause to 3 days
unless the Court orders a longer period.
Clause 425 requires that a person the subject of a court examination order
(in-patient) be returned to the place from which the person was taken for the
examination. The clause does not preclude the person from being detained
for involuntary treatment upon the completion of the court examination
order.
Clause 426 recognises that in certain circumstances it will be
inappropriate for the Court to disclose certain information to the person the
subject of the hearing. Such a restriction on the information provided can
only be ordered where the Court is satisfied that disclosure would cause
serious harm to the person or put the safety of someone else at serious risk.
In order to protect the person's rights, the Court must provide the
information to the person's legal representative or agent. If the party is
unrepresented, the Court must ensure a lawyer or agent is appointed to
receive the restricted information on the person's behalf.
Part 9--Inquiries into detention of patients in authorised
mental health services
Part 9 gives the Mental Health Court the power to inquire into the
detention of a patient in an authorised mental health service. It is not
intended that this power will be used to uncover administrative defects, but
rather, more serious infringements of a person's rights. For example, the
deliberate or reckless disregard for the provisions of this Act or for the
violation of a person's basic human rights whilst the person is being
involuntarily detained under this Act.
Clause 427 provides that a patient may make an application to the Mental
Health Court for the Court to inquire into whether or not the person is
lawfully detained in an authorised mental health service. It is intended that
the Court will deal with the application expeditiously to ensure that an
investigation into the person's detention commences as soon as possible.
However, the Court may dismiss the application if it is frivolous or
vexatious, or if the matter is one which may properly be decided by the
Mental Health Review Tribunal, for example, the continued application of
the treatment criteria to the patient.
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Clause 428 provides that the Mental Health Court may commence an
inquiry into a patient's detention on its own initiative.
Clause 429 gives to the Mental Health Court the power to appoint a
person (the "appointed person") to inquire into and report about the
detention of a patient.
Clause 430 states that the administrator of the health service must ensure
that the appointed person is given reasonable assistance to ensure that the
appointed person has free and open access to information relevant to the
inquiry.
Clause 431 sets out the powers an appointed person may exercise in
conducting an inquiry. The clause provides that in exercising a power the
appointed person may use reasonable force.
Clause 432 provides the appointed person with the power to require a
person to answer a question about a patient's detention. Although the clause
creates an offence for failing to comply with the request, the clause states
that a person does not have to answer questions that might incriminate
them.
Clause 433 empowers the Court to discharge a patient who is unlawfully
detained.
Clause 434 provides that despite the Mental Health Court finding that a
person is unlawfully detained, the person is not barred from seeking any
other remedy.
Part 10--Miscellaneous provisions
Clause 435 provides that the constituting judge must provide a report to
the Minister at the end of each financial year to be tabled in Parliament by
the Minister.
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CHAPTER 12--MENTAL HEALTH REVIEW
TRIBUNAL
Part 1--Establishment, jurisdiction and powers
Clause 436 establishes the Mental Health Review Tribunal and states
who constitutes the Tribunal.
Clause 437 sets out the Mental Health Review Tribunal's jurisdiction.
Clause 438 provides that the Mental Health Review Tribunal must
exercise its jurisdiction in a way that is fair, just, economical, informal and
timely.
Clause 439 confers on the Tribunal wide powers to exercise its
jurisdiction.
Part 2--Tribunal members and staff
Clause 440 provides for the appointment by the Governor in Council of
the president and members of the Tribunal and their qualifications. It is
intended that the Tribunal will be representative of the gender balance,
cultural and social diversity in the community. It is intended that as far as
possible, members will sit on Tribunals in the community in which they
live.
Appointment to the Tribunal is not limited to mental health professionals
and members, for example, may have experience in caring for a person with
a mental illness, or may have had a mental illness themselves.
Clause 441 provides for the duration of appointment to the Tribunal.
Clause 442 sets out the terms of appointment to the Tribunal including
that remuneration and allowances are to be set by the Governor in Council.
Clause 443 sets out how a member may resign.
Clause 444 provides the Governor in Council with the power to
terminate the appointment of a member of the Tribunal. The clause sets out
the circumstances in which a Governor in Council may terminate an
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appointment and those circumstances in which the termination of
appointment is mandatory.
Clause 445 gives the Governor in Council the power to appoint an acting
President of the Mental Health Review Tribunal. It is intended that the
Governor in Council will appoint an acting president prospectively.
Clause 446 makes provision for the appointment of an executive officer
and staff to assist the Tribunal. The executive officer and staff are to be
employed under the Public Service Act 1996. The President is conferred
with the power to oversee the operation of the organisational unit as if the
President were a Chief Executive Officer of a Department.
Part 3--Constitution of Tribunal for hearings
Clause 447 provides for how the Tribunal must be constituted for
particular hearings. Subject to clause 448, the Tribunal must be constituted
by at least 3 but no more than 5 members. In deciding the number of
members to constitute a Tribunal for a review, the president must have
regard to the current risk the patient represents to himself or herself or
others. It is intended that whenever possible, the president will be the
presiding member for a review of a forensic patient.
Clause 448 sets out those matters when the president may order that a
Tribunal of less than 3 members be constituted to hear a matter.
Clause 449 provides that if a Tribunal is constituted by more than one
member at least one member must be a lawyer and a lawyer must be the
presiding member. The clause does not preclude a one member Tribunal
being constituted by a member that is not a lawyer.
Part 4--Participation and representation at hearings
Clause 450 sets out those persons who have a right of appearance at a
review hearing.
Clause 451 sets out those persons who have a right of appearance at the
hearing of a treatment application.
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Clause 452 sets out those persons who have a right of appearance at the
hearing of an application for approval for a patient to move out of
Queensland.
Clause 453 sets out those persons who have a right of appearance at the
hearing of an application for a notification order.
Clause 454 sets out those persons who have a right of appearance at the
hearing of an appeal against the decision to exclude a visitor.
Clause 455 provides that the patient's allied person, or some other person
with the leave of the Tribunal may attend a Tribunal hearing. It is intended
that the allied person or other person give assistance and support to the
patient and only present the patient's views, wishes and interests.
Clause 456 sets out the circumstances in which the Tribunal may proceed
in the absence of an involuntary patient the subject of a review or treatment
application. An example of when the Tribunal would be satisfied that the
patient is absent of the patient's own free will is if notice of the hearing had
been forwarded to the patient's last known address giving reasonable notice
of the hearing.
Part 5--Examination and confidentiality orders
Clause 457 gives the Tribunal power to order the person the subject of
the proceeding to submit to an examination by a stated examining
practitioner.
Clause 458 recognises that in certain circumstances it will be
inappropriate for the Mental Health Review Tribunal to disclose certain
information to the person the subject of the hearing. Such a restriction on the
information provided can only be ordered where the Tribunal is satisfied
that disclosure would cause serious harm to the person or put the safety of
someone else at serious risk. In order to protect the person's rights, the
Tribunal must provide the information to the person's legal representative or
agent. If the party is unrepresented, the Tribunal must ensure a lawyer or
agent is appointed to receive the restricted information on the person's
behalf.
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Part 6--Procedural provisions
Clause 459 sets out the procedures to be adopted by the Tribunal during a
hearing.
Clause 460 provides that a Tribunal hearing must not be open to the
public unless otherwise ordered. Due to the personal and confidential nature
of the material under consideration, the Tribunal is required to apply a
threefold test before proceedings can be opened to the public.
Clause 461 provides that in all hearings, questions of law are decided by
a member who is a lawyer. If the panel is comprised of a single member
who is not a lawyer, that member must refer the question of law to a
member who is a lawyer, for example, the President. Decisions on other
matters are decided by majority or otherwise according to the opinion of a
presiding member.
Clause 462 allows the Tribunal to appoint persons to assist it during a
hearing. It is intended that the broad power will allow the Tribunal to
appoint persons with, for example, particular language skills to assist in
interpretation or persons with specific cultural knowledge to assist the
Tribunal in contextualising evidence. The Tribunal may also use this clause
to appoint a person to assist the person the subject of the hearing to
understand or endure the proceedings.
Clause 463 provides that a matter before the Tribunal can be adjourned
for not more than 28 days to ensure the material already received is still
relevant to the patient. The person's mental condition may have changed in
that period of time.
Clause 464 allows the Tribunal to take into account material submitted by
a person who is not a party to the proceeding. However, the material must
not otherwise be before the Tribunal and it must be relevant to the decision
under consideration. It is intended that material of this nature will be
provided in writing however the clause does not preclude the Tribunal from
taking oral evidence from the person. The rules of natural justice may in
certain circumstances dictate that the person must be available for
cross-examination by a person the subject of a hearing.
Clause 465 states that if the Tribunal accepts material from a person
under clause 464, the Tribunal must give reasons to the person for taking or
not taking into account the material submitted.
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Clause 466 gives the presiding member power to require the attendance
of a person to give evidence or provide documents. The presiding member
has power to administer an oath and direct that evidence be given on oath or
verified by oath.
Clause 467 provides for the Tribunal's custody of documents and things
ordered by the Tribunal to be provided to it.
Clause 468 provides for offences by witnesses.
Clause 469 provides that a witness need not answer a question or
produce a document if it might tend to incriminate the witness.
Clause 470 provides that it is an offence for a person to make a false or
misleading statement to the Tribunal, Executive Officer or other staff
member.
Clause 471 provides that it is an offence for a person to give false,
misleading or incomplete information in a document to the Tribunal,
Executive Officer or other staff member.
Clause 472 provides that the proceedings of the Tribunal are, for the
purposes of the Criminal Code, judicial proceedings and fabrication of
evidence can be punished under the Criminal Code.
Clause 473 provides for circumstances in which a person may be held in
contempt of the Tribunal. The clause also gives the Tribunal power to have
a person removed if they are in contempt.
Clause 474 provides for the punishment of contempt by a certificate
issued to the Supreme Court. If, upon its inquiry, the Court is satisfied the
person was in contempt of the Tribunal, the Court may punish a person as if
the contempt was a contempt of the Supreme Court.
Clause 475 provides protection against double jeopardy in circumstances
where conduct before the Tribunal gives rise to a contempt of the Tribunal
and another offence against this or another Act.
Clause 476 provides that the Tribunal does not have power to make an
award of costs against a party to a proceeding.
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Part 7--Protection and immunities
Clause 477 confers upon Tribunal members in the exercise of their duties
under the Act the protection and immunities of a Supreme Court judge.
Clause 478 sets out the protection and immunities afforded legal
representatives, agents and witnesses appearing before the Tribunal and
documents produced at the Tribunal.
Part 8--Rules and practices
Clause 479 sets out the matters relating to the Mental Health Review
Tribunal and its staff about which the Governor in Council can make rules.
Clause 480 gives the President power to give directions about the practice
and procedure of the Tribunal.
Clause 481 sets out the forms the President may approve under this Act.
Part 9--Miscellaneous provisions
Clause 482 provides for the authentication of documents.
Clause 483 provides that judicial notice must be taken of the signature of
a Tribunal member.
Clause 484 provides that the president is responsible for the arrangement
of the business of the Tribunal. The clause sets out those matters that the
president must give directions about.
The clause provides that as far as practicable, a Tribunal member who is
culturally appropriate to the patient must be a member of the Tribunal
hearing the matter.
Clause 485 allows the President to delegate a power to another Tribunal
member.
Clause 486 requires the President to ensure a register is kept. The clause
sets out the information to be kept in the register.
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Clause 487 provides that the President must provide a report to the
Minister at the end of each financial year to be tabled in Parliament by the
Minister.
CHAPTER 13--ADMINISTRATION
Part 1--Director of Mental Health
Division 1--Appointment, functions and powers
Clause 488 establishes the statutory position of the Director of Mental
Health and ensures the independence of the position from Queensland
Health by providing for the appointment to occur through Governor in
Council.
Clause 489 sets out the functions of the Director of Mental Health.
Clause 490 declares the general powers of the Director of Mental Health.
Clause 491 ensures the independence of the Director of Mental Health by
providing that, in exercising a power under this Act, the Director is not
under the control of the Minister for Health.
Clause 492 provides for the Director of Mental Health to delegate certain
powers under this Act. The powers are only to be delegated to appropriately
qualified persons. A schedule of delegations will be available to be
examined and guidelines will be produced setting out how, and when,
delegations are to be reviewed. The clause provides that certain powers can
never be delegated. However, those powers that can be delegated are done
so because the power is required to be exercised urgently in order to protect
the rights of patients or to ensure the proper security of mental health
services.
Clause 493 allows the Director of Mental Health to approve relevant
forms for use under the Act. Note that the Mental Health Court and the
Mental Health Review Tribunal have the power to approve forms relevant to
Court and Tribunal matters respectively.
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Division 2--Miscellaneous provisions
Clause 494 requires the Director of Mental Health to provide an annual
report on the administration of the Act, and requires the Minister to table a
copy of the report in Parliament.
Part 2--Authorised mental health services, high security
units and administrators
Clause 495 provides for the Director of Mental Health to declare a health
service, or part of a health service, to be an authorised mental health service.
An authorised mental health service is the only place where a person is
allowed to be detained involuntarily for treatment, and in most cases,
involuntary assessment.
The purpose of the declaration is to ensure that the service is of a standard
appropriate to protect the rights of people treated involuntarily. It is intended
that matters to be considered in determining whether a particular service
should be declared an authorised mental health service will include whether
there are appropriately qualified staff, whether the service has the capacity to
provide appropriate treatment and the availability of adequate quality
information systems.
Both private and public health services providing mental health services
can be declared to be authorised mental health services. A community
based health service can also be declared part of an authorised mental health
service in order to meet the needs of patients under a community category
of an involuntary treatment order.
Clause 496 provides that the Director of Mental Health may declare the
whole or part of an authorised mental health service a high security unit.
Private health services can never be declared high security units.
Clause 497 provides that the Director of Mental Health may declare a
person to be the administrator of an authorised mental health service. The
Director can also declare a person to be the administrator of a high security
unit, which will always be an authorised mental health service or part of an
authorised mental health service.
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Clause 498 enables the administrator to delegate certain powers under
this Act in urgent circumstances in order to protect the rights of patients or
to ensure the proper security of mental health services. The powers are only
to be delegated to appropriately qualified persons. A schedule of
delegations will be available to be examined and guidelines will be produced
setting out how, and when, delegations are to be reviewed.
Part 3--Authorised mental health practitioners and
approved officers
Clause 499 provides for the Director of Mental Health to appoint a health
practitioner to be an authorised mental health practitioner. An authorised
mental health practitioner has an important role in the involuntary admission
process, in particular, by making the recommendation for the involuntary
assessment of a person. The powers of the authorised mental health
practitioner are contained in Chapters 2 and 3.
Safeguards are provided in the legislation to ensure that an authorised
mental health practitioner has the appropriate expertise to perform their
functions under the legislation. The legislation requires the authorised
mental health practitioner to be either a doctor, nurse, occupational therapist,
psychologist, social worker, or another person with training or qualifications
in mental health. Further, the person has to satisfy the Director of Mental
Health that they have the necessary expertise and experience to be an
authorised mental health practitioner. It is intended that guidelines will be
developed regarding the particular training and experience required to be
able to demonstrate their ability to fulfil this role.
Clause 500 empowers the Director of Mental Health to appoint a person
to be an "approved officer" who will exercise the powers set out in clauses
532 and 533. In order to be appointed an approved officer, the person must
have the necessary expertise or experience to perform the functions and
powers of an approved officer. Note that the Director of Mental Health also
has the powers of an approved officer because the definition of an approved
officer includes the Director of Mental Health.
Clause 501 provides for the terms of appointment of an authorised
mental health practitioner and an approved officer.
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Clause 502 clarifies that an authorised mental health practitioner or
approved officer has the powers provided for under this Act, subject to any
limitation expressed in the instrument of appointment.
Clause 503 provides for identity cards to be issued for authorised mental
health practitioners and approved officers.
Part 4--Authorised doctors
Clause 504 provides for the appointment of authorised doctors.
Authorised doctors are able to make involuntary treatment orders.
In order to be appointed, the doctor must have the necessary expertise or
experience to exercise the powers under the legislation, ensuring the quality
of decision making. In most circumstances an authorised doctor will be a
psychiatrist which ensures the highest level of expertise in authorising
involuntary treatment. In order to ensure against unacceptable delays in
starting treatment because of the lack of availability of psychiatrists, the
administrator can also appoint another doctor (who is not a psychiatrist) to
be an authorised doctor, for example a psychiatry registrar, or another
doctor with experience or expertise in mental health. In addition, if
involuntary treatment is authorised in the first instance by an authorised
doctor who is not a psychiatrist, the order must be re-assessed and then
either confirmed or revoked by a psychiatrist within 72 hours of the order
being made (clause 112). The Act declares that if the administrator of an
authorised mental health service is a psychiatrist, the psychiatrist is also an
authorised doctor for the service.
Clause 505 clarifies that the authorised doctor has the powers provided
for under this Act, subject to any limitation expressed in the instrument of
appointment.
Clause 506 provides that a register of authorised doctors must be kept by
the administrator of an authorised mental health service to document the
identity, number and availability of the pool of people able to authorise
involuntary treatment.
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CHAPTER 14--ENFORCEMENT, EVIDENCE AND
LEGAL PROCEEDINGS
Specific powers are set out under Chapter 14 to assist in taking or
returning a patient to an authorised mental health service. A patient may be
returned, under Part 1, to an authorised mental health service if the patient
fails to comply with involuntary assessment or treatment or the patient's
treatment needs change while undertaking limited community treatment.
Part 2 aims to safeguard the rights of a patient by placing a limitation on the
circumstances where entry and search powers can be used to apprehend the
patient.
The extent to which force can be used to detain and treat a patient under
this Act is set out clearly in Part 3.
Part 4 creates a number of offences.
Part 5 provides for confidentiality of information relating to proceedings
before the Mental Health Court and the Mental Health Review Tribunal and
creates offences for breaching confidentiality. It also sets out in what
circumstances confidential information may be disclosed by a health service
employee.
Part 6 sets out the powers of the Director of Mental Health and an
approved officer to visit mental health services and inspect documents and
other matters.
Part 7 sets out matters pertaining to evidential proof and legal
proceedings.
Part 8 provides for when and how the general provisions of the Act are to
be complied with.
Part 1--Return of patients to treating health service for
assessment or treatment
Clause 507 empowers an authorised doctor to require an involuntary
patient, by written notice, to return to an authorised mental health service.
Under most circumstances the doctor is required to talk to the patient about
the notice and the reasons for giving it. However, it is intended that the
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patient may be returned without complying with this requirement; for
example, if it is not reasonably practicable, or it would not be in the interests
of the health or safety of the patient or the safety of others to do so.
Clause 508 provides for a patient to be returned to an authorised mental
health service in the following circumstances:
· if a notice is issued under clause 507 by an authorised doctor;
· if the Director of Mental Health's approval for a classified or
forensic patient's temporary absence is revoked or ends.
· if a patient detained in an authorised mental health service under a
particular court order unlawfully absents him or herself from the
health service.
The purpose of empowering a police officer to detain a classified or
forensic patient or patient detained under a court order is to provide for the
safety of the patient and the general community. If a police officer has a
power to detain a person under an Act, other powers are also conferred on
the police officer under the Police Powers and Responsibilities Act 1997,
including entry and search powers.
Clause 509 authorises the administration of medication to the person
while being taken to the authorised mental health service only if this is
necessary to ensure the safety of the patient or others. Where a doctor is
satisfied this is the case, the medication may only be administered by a
doctor or registered nurse under the specific instructions of a doctor.
The provisions in relation to the provision of non-consensual health care
under the Guardianship and Administration Act 2000 do not apply to the
giving of medication under this clause.
Part 2--Entry to places
Clause 510 states that the provisions about entry to places apply to
circumstances where authority is given to take a patient to an authorised
mental health service.
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Clause 511 aims to limit entry to a place without the occupier's consent
to find a patient in order to take them to an authorised mental health service
to circumstances where such entry is authorised by a warrant for
apprehension of the patient.
Clause 512 sets out who can apply for a warrant of apprehension and
how an application is made.
Clause 513 specifies that a warrant of apprehension can only be issued
by a magistrate, and only if the magistrate is satisfied of the matters set out
in the clause. The purpose of empowering a police officer to detain a patient
to take the patient to an authorised mental health service is to provide entry
and search powers under the Police Powers and Responsibilities Act 2000.
The clause also specifies what the warrant must state so that it clearly sets
out the police officer's powers.
Clause 514 sets out how a "special warrant" may be obtained in urgent
circumstances or other special circumstances (eg. in a remote location). A
special warrant may be applied for, and issued by phone, fax, radio or
another form of communication (as opposed to in person). Specific
safeguards are placed on the use of special warrants, including a
requirement that the making of the warrant is documented, that a sworn
application be sent at the first reasonable opportunity and evidentiary
requirements.
Clause 515 sets out the obligations on a police officer if the officer
intends to enter a place under a warrant of apprehension. It aims to
safeguard a person's privacy and ensures the person is given a clear
explanation of the warrant and the police officer's powers under the warrant.
Part 3--Use of reasonable force for detention and treatment
Clause 516 authorises the use of force (and the help) that is reasonable in
the circumstances to detain a person in an authorised mental health service.
Clause 517 provides for a patient's treatment without consent if the
patient is under an involuntary treatment order or forensic order.
Reasonable force and help, as necessary in the circumstances, are authorised
to provide the treatment.
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Part 4--Offences
Clause 518 creates an offence for the ill-treatment of patients.
Clause 519 creates offences relating to assistance given to classified or
forensic patients, or patients for whom a court has made an order under
section 101(2), 273(1)(b) or 337(5) to unlawfully absent themselves from
an authorised mental health service or authorised person under the section.
Clause 520 creates offences relating to assistance given to a patient to
unlawfully absent themselves from an authorised mental health service and
assistance given to patients who are unlawfully absent from a health service.
Clause 521 creates an offence of obstruction of an official.
Clause 522 creates an offence for making a false or misleading statement
in a document used for the purposes of this Act.
Part 5--Confidentiality
Clause 523 provides that for this Part a "report" includes a report of part
of a proceeding.
Clause 524 prohibits the publication of a report of a proceeding of the
Mental Health Court or Court of Appeal until a prescribed period has
elapsed. The deferment of the right to publish is necessary to ensure that in
all circumstances a person's possible trial is not prejudiced by the
publication of evidence that may be given at the person's trial.
Clause 525 prohibits the publication of any report about a proceeding of
the Mental Health Review Tribunal and proceedings before the Mental
Health Court on an appeal from a decision of the Mental Health Review
Tribunal or the Court's inquiry into the detention of a patient. However, the
clause sets out the circumstances in which the Tribunal or Mental Health
Court can permit publication. It is recognised that the material being
considered is personal in nature; being principally concerned with medical
matters. Accordingly, the material should remain confidential unless the
Tribunal or Mental Health Court permits publication. Permission to publish
may only be granted if the Court or Tribunal is satisfied it is in the public
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interest and the report will not contain information identifying a person
involved in the hearing.
Clause 526 prohibits the publication of information that identifies a
young person in any proceeding. The clause also prohibits publication of
information that identifies a person the subject of a proceeding before the
Tribunal, an appeal from a decision of the Tribunal or the Court's inquiry
into the detention of a patient.
Clause 527 creates an offence to publish information contained in a
notice given under a notification order.
Clause 528 provides for circumstances in which a Court or Tribunal
official or staff member will not be in breach of disclosing confidential
information. The clause creates an offence for breach of confidential
information.
Clause 529 creates an offence if a patient's allied person or a person
acting on behalf of a patient discloses confidential information.
Clause 530 provides for the disclosure of confidential information by the
Director of Mental Health or an officer, employee or agent of a department
in exercising a power or performing a function under this Act.
Part 6--Investigations
Clause 531 defines patient for this Part.
Clause 532 allows the Director of Mental Health or an "approved
officer" appointed under clause 500 to visit authorised mental health
services with or without notice to ensure the proper and efficient
administration of the Act. The Director of Mental Health and the approved
officer also have specified powers when visiting the service, including the
power to require the administrator of the health service to provide
reasonable help in the exercise of those powers.
Clause 533 sets out the powers of the Director of Mental Health or the
approved officer to require the administrator of an authorised mental health
service to provide documents and other information.
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Part 7--Evidence and legal proceedings
Clause 534 provides for the presumptions of proof to be applied to
various proceedings under the Act.
Clause 535 provides that prosecution of offences created by this Act
must be by way of summary proceedings taken under the Justices Act 1886.
All offences under this Act are simple offences.
Clause 536 provides for the protection of officials from civil liability.
Part 8--General
Clause 537 provides that where a thing is required to be done under this
Act and no time is provided for doing the thing, it must be done as soon as
practicable.
Clause 538 provides that when notice is required to be given, the person
need only comply with the requirement to the extent that is reasonably
practicable in the circumstances.
Clause 539 validates the directions of an administrator of an authorised
mental health service in relation to notice given to an allied person in
circumstances where an administrator mistakenly gives notice to a person
believing that person to be an allied person.
CHAPTER 15--MISCELLANEOUS PROVISIONS
Clause 540 provides that the legal custody of particular patients who have
outstanding charges is vested in the administrator of the treating health
service.
Clause 541 provides that a health practitioner can take an involuntary
patient to and from court for any reason. The health practitioner may
request assistance from police if necessary.
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Clause 542 sets out the circumstances when an official (as defined) must
identify himself or herself, and anyone else helping the official exercise a
power.
Clause 543 specifies that detention in an authorised mental health service
for particular patients is to be counted toward any period of imprisonment
under the Penalties and Sentences Act 1992, the Corrective Services Act
1988 or the Juvenile Justice Act 1992. Any period a patient is on limited
community treatment is also to be counted as imprisonment for the
purposes of these Acts.
Clause 544 provides that a patient or a surety is not liable under the Bail
Act 1980 if proceedings for an offence are suspended under this Act. It is
intended that this clause operate despite a patient being placed on limited
community treatment.
Clause 545 provides the Governor in Council with the power to make
regulations.
Clause 546 provides that, in an Act or document, a reference to the
Mental Health Act 1974 may be taken to be a reference to this Act if the
context permits.
CHAPTER 16--REPEAL AND TRANSITIONAL
PROVISIONS
Part 1--Repeal of Mental Health Act 1974
Clause 547 repeals the Mental Health Act 1974.
Part 2--Transitional provisions
Part 2 establishes a scheme to ensure a straightforward transition to the
new legislation. It is important to note that under the new legislation, the
Patient Review Tribunal is replaced by the Mental Health Review Tribunal,
and the Mental Health Tribunal is replaced by the Mental Health Court.
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Division 1--Interpretation
Clause 548 defines the "commencement day" and the "repealed Act"
for the purposes of Part 2.
Clause 549 clarifies references to the patient's treating health service
under this Part. On commencement day, health services declared by gazette
notice under clause 495 will become authorised mental health services. On
commencement day, a health service previously responsible for a patient's
involuntary treatment that becomes an authorised mental health service will
be referred to as the patient's treating health service.
Division 2--Provisions about admission, detention and removal to places
of safety under Part 3 of repealed Act
Clause 550 provides that if a person was to be admitted to a hospital
under section 18 of the repealed Act and the documents were still effective
immediately before commencement day, the documents are taken to be
assessment documents under Chapter 2, and continue in force until the
documents would have ceased under the repealed Act. This will allow the
person's assessment under Chapter 2, without the need for obtaining further
documents.
Clause 551 is intended to ensure that a patient detained under an interim
detention order under section 19 of the repealed Act immediately before the
commencement day can continue to be detained until the end of the 24 hour
period as provided under the section.
Clause 552 deems a warrant for the removal of a person to a place of
safety, made under section 25 of the repealed Act, to be a justices
examination order, if the warrant was still effective immediately before the
commencement day.
Clause 553 provides that a person is deemed to be detained for
involuntary assessment under Chapter 2, Part 4 if, immediately before the
commencement day, the person was detained in a hospital under section 27
of the repealed Act. This means the person may be detained for assessment
for a maximum period of 3 days.
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Clause 554 aims to ensure that a patient detained under section 21 of the
repealed Act immediately before the commencement day continues to be
able to receive involuntary treatment. The level of authority for the
treatment should be consistent with the corresponding authorisation under
Chapter 4.
The following scheme applies to the deeming of a patient's involuntary
status:
· A medical recommendation under section 21(1) or (2) is deemed
to be an involuntary treatment order made by an authorised doctor
who is not a psychiatrist.
· The last psychiatrist's report under section 21(3) for a patient
prior to commencement is deemed to be an involuntary treatment
order made by a psychiatrist. However, if the report was not
made by a psychiatrist it is deemed to be an involuntary treatment
order made by an authorised doctor who is not a psychiatrist.
· In the case of a medical recommendation under section 21(1) or
(2) or a report under section 21(3) not made by a psychiatrist, this
will need to be confirmed by a psychiatrist within 72 hours of
commencement.
Clause 555 aims to ensure that all patients for whom an involuntary
treatment order is deemed to have been made under the Part will have an
assessment to decide whether the treatment criteria apply at the first regular
assessment of the patient after the commencement day. If the treatment
criteria are met for the patient, an authorised psychiatrist must make a new
involuntary treatment order. While the making of the order does not require
the patient to have an initial 6 week review by the Mental Health Review
Tribunal, reviews at intervals of not more than 6 months are required under
clause 187.
Clause 556 clarifies that if an involuntary treatment order that is taken to
have been made under this Part, the category of the order is in-patient.
However, this does not apply to an involuntary treatment order made on an
assessment under clause 555 because that order will be made under clause
108.
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Division 3--Provisions about particular patients detained under Part 4
of repealed Act
Division 3 provides deeming provisions to ensure that particular patients
detained in a hospital under Part 4 of the repealed Act can continue to be
detained in an authorised mental health service. If, under the Division, a
patient is deemed to be a classified patient, clauses 70 and 72 will not apply
because equivalent notices under the repealed Act would have already been
issued and, in most cases, the timeframe for an initial assessment will have
passed. In cases where the repealed Act required a patient's examination or
assessment by a doctor, an involuntary treatment order is deemed to have
been made for the patient.
Unlike the repealed Act, examinations and references for patients charged
with offences are now addressed in one scheme. Deeming provisions for
the application of Chapter 7 to examinations and references for these
patients are set out in Division 6.
Clause 557 provides that a person detained in a hospital under section
29(3) of the repealed Act immediately before the commencement day is
taken to be a classified patient for whom a court assessment order has been
made.
For a patient to be treated involuntarily, an involuntary treatment order
must be made. This is because, under section 29 of the repealed Act, a
doctor is not required to conduct an examination or assessment of the
patient.
Clause 558 authorises a person's continued detention if, immediately
before the commencement day, the person was detained in a prison or
hospital under a court order under section 29(4)(b) of the repealed Act.
Clause 559 deems a patient to be a classified patient for whom a court
assessment order was made if, immediately before the commencement day,
the patient was detained in a hospital under section 29A(2) or 29C of the
repealed Act. The justices order under section 29A(2) or 29C is taken to be
an involuntary treatment order that was made on the commencement day by
an authorised doctor who is not a psychiatrist. This ensures that involuntary
treatment that was authorised under the repealed Act can continue after the
commencement day. Because the involuntary treatment was only
authorised on the basis of evidence provided by two doctors, the involuntary
treatment order must be confirmed by a psychiatrist within 72 hours of the
commencement day.
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Clause 560 deems a patient to be a classified patient for whom a
custodian's assessment authority was made if, immediately before the
commencement day, the patient was detained in a hospital under section 31
or 32 of the repealed Act.
The doctor's recommendation under section 31(2) is taken to be an
involuntary treatment order that was made by an authorised doctor who is
not a psychiatrist. The involuntary treatment order must be confirmed by a
psychiatrist within 72 hours of the doctor's recommendation. However, the
order is taken to have been confirmed if, before the commencement day, a
psychiatrist had given a certificate under section 31(3).
The different requirements for the making and confirmation of
involuntary treatment orders are intended to address circumstances where
the commencement day falls within the first 3 days of a person's admission
under section 31 or 32, or after a psychiatrist has given a certificate under
section 31(3). It also provides a safeguard to ensure that a patient's
involuntary treatment under this provision is authorised on a similar basis to
patients admitted on, or after, the commencement day.
Clause 561 aims to ensure that a person to whom section 31A of the
repealed Act applied immediately before the commencement day, is brought
before a court or justices.
Clause 562 deems a prisoner to be a classified patient for whom a
custodian's assessment authority was made if, immediately before the
commencement day, the prisoner was detained in a hospital under section
43 of the repealed Act.
The doctor's recommendation under section 43(2) is taken to be an
involuntary treatment order that was made by an authorised doctor who is
not a psychiatrist. The involuntary treatment order must be confirmed by a
psychiatrist within 72 hours of the doctor's recommendation. However, the
order is taken to have been confirmed if, before the commencement day, a
psychiatrist had given a certificate under section 43(5).
The different requirements for the making and confirmation of
involuntary treatment orders are intended to address circumstances where
the commencement day falls within the first 3 days of a person's admission
under section 31 or 32, or after a psychiatrist has given a certificate under
section 31(3). It also provides a safeguard to ensure that a patient's
involuntary treatment under this provision is authorised on a similar basis to
patients admitted on, or after, the commencement day.
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Clause 562 also enables a patient to continue to be detained in a high
security unit if, immediately before the commencement day, the patient was
detained (or liable to be detained) in a security patient's hospital following
the expiration of the patient's period of imprisonment or detention.
Clause 563 ensures a young patient detained in a security patient's
hospital immediately before commencement day can continue to be detained
in a high security unit. The intervals for reviews of the young patient's
detention by the Mental Health Review Tribunal under Chapter 6, Part 2 will
be calculated from the commencement day.
Clause 564 deems a court order under section 43E of the repealed Act to
be a court order under Chapter 3, Part 7.
Division 4--Provisions about transfer and leave of absence
Clause 565 ensures a restricted patient detained in a security patients'
hospital immediately before the commencement day can continue to be
detained in a high security unit. If the Director of Mental Health ordered the
patient's transfer to the security patients' hospital under section 41 or 44 of
the repealed Act, the transfer is taken to have been authorised under clause
165 to a high security unit. If the patient is a young patient, the intervals for
reviews by the Mental Health Review Tribunal under Chapter 6, Part 2 will
be calculated from the commencement day.
Clause 566 deals with leave of absence for restricted patients under Part 4
of the repealed Act. A patient granted leave of absence or released on leave
of absence following a finding of the Patient Review Tribunal is deemed to
have had an equivalent order or authorisation for limited community
treatment.
Clause 567 deems leave of absence that was granted for a patient under
section 46 of the repealed Act to be limited community treatment authorised
under clause 129. The maximum time the limited community treatment is
authorised is 7 days from the commencement day to bring patients under
the new scheme. The patient's involuntary treatment order will be able to be
changed to the community category from the commencement day.
Clause 568 ensures that a patient who was absent without leave from
hospital immediately before commencement day can be returned to the
in-patient facility of an authorised mental health service. For returning the
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patient, health practitioners and police officers have the same powers as in
clauses 508 and 509.
Division 5--Reviews by Patient Review Tribunal
Clause 569 deems particular applications made to a Patient Review
Tribunal that had not been heard immediately before the commencement
day to be applications for reviews by the Mental Health Review Tribunal.
Also, if an order by a Patient Review Tribunal for a patient's discharge,
leave of absence or transfer had not been given effect immediately before
the commencement day, the order is deemed to be an equivalent decision
under clause 191.
Clause 570 deems an order by a Patient Review Tribunal that a patient
could be released (other than on leave of absence) to be a decision by the
Mental Health Review Tribunal revoking a forensic order for the patient, if
such an order had not been given effect immediately before commencement
day. Similarly, an order by a Patient Review Tribunal for a patient's
transfer is taken to be an order of the Mental Health Review Tribunal that a
patient be transferred from one authorised mental health service to another.
Clause 571 aims to ensure that patients originally detained under the
repealed Act are provided a timely and consistent transition into the new
scheme for reviews by the Mental Health Review Tribunal.
Clause 572 aims to ensure that patients found not fit for trial under
section 33 of the repealed Act enter the scheme under Chapter 6, Part 4 for
reviews of a patient's mental condition to determine fitness for trial at the
equivalent point they were under the repealed Act immediately before
commencement day.
Clause 573 declares that the period after which legal proceedings against
a patient found not fit for trial under the repealed Act are discontinued is the
same as the period under section 34 of the repealed Act. This is because the
period under Chapter 6, Part 4 is different to the period under section 34 of
the repealed Act and should not be imposed retrospectively.
Clause 574 aims to ensure that certain patients for whom a jury has made
a section 613 or 645 finding under the Criminal Code enter the scheme
under Chapter 6, Part 4 at the equivalent point they were, under the repealed
Act, immediately before the commencement day.
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Clause 575 ensures the trial of a person who, after having been subject to
a finding by a jury under sections 613 or 645 of the Criminal Code, is found
fit for trial by the Patient Review Tribunal and the Governor in Council
orders that the person be tried for the offence. Sections 38(13) and (14) of
the repealed Act apply as if the repealed Act had not been repealed.
Clause 576 declares that the period after which legal proceedings against
a patient for whom a jury has made a section 613 or 645 finding before the
commencement day are discontinued is 3 years. This is because the period
under Chapter 6, Part 4 is different to the period under section 38 of the
repealed Act and should not be imposed retrospectively.
Division 6--Examinations, references and orders for persons charged
with offences
Clause 577 aims to ensure that Chapter 7 applies to all patients, who,
because of the operation of the transitional provisions, are deemed to be
under involuntary treatment or forensic orders and who are charged with
criminal offences. To ensure a smooth transition to the new scheme,
notices, decisions, references, etc. will not have to be repeated under the new
scheme if a corresponding action has been done under the repealed Act.
Subclause (5) provides a deeming provision for particular things done
under the repealed Act that do not have a directly corresponding, but do
have a similar, provision under the new scheme.
Clause 578 deems a reference of a person's mental condition to the
Mental Health Tribunal made under the repealed Act to be a reference to the
Mental Health Court if, immediately before commencement day, the Mental
Health Tribunal had not taken oral evidence on the reference.
Clause 579 aims to ensure that the Mental Health Tribunal can continue
to hear the matter of a patient's mental condition on or after the
commencement day, if the Mental Health Tribunal had taken oral evidence,
but immediately before the commencement day, had not decided the
reference. It is then deemed that a determination or order of the Mental
Health Tribunal is an equivalent decision or order of the Mental Health
Court.
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Clause 580 aims to ensure that determinations or orders by the Mental
Health Tribunal (or Court of Appeal), in force immediately before the
commencement day, are deemed to be equivalent decisions or orders by the
Mental Health Court under Chapter 7.
Clause 581 provides that a patient who was, immediately before the
commencement day, detained under an order of the Minister under section
38(1) or 39(1) of the repealed Act can continue to be detained in an
authorised mental health service under a forensic order (Minister).
Clause 582 ensures that a person who elected to be brought to trial under
section 43C of the repealed Act can, on or after the commencement day,
proceed to trial.
Division 7--Appeals and inquiries
Clause 583 deems an application under sections 15(9) or (10) or 37 of
the repealed Act that had not been decided before the commencement day to
be an appeal against an equivalent review decision. However, if on hearing
the application, the Mental Health Tribunal had taken oral evidence or an
oral submission on a material matter, the application must continue to be
decided by the judge who constituted the Tribunal, assisted by the same
psychiatrists.
Subclause (4) ensures that if a person wishes to appeal against a decision
of the Patient Review Tribunal on or after the commencement day, the
appeal can be heard under Chapter 8, Part 1, as if the decision appealed
against were a decision of the Mental Health Review Tribunal.
Clause 584 permits an appeal against a decision of the Mental Health
Tribunal to be started or continued on, or after, the commencement day.
The clause sets out deeming provisions for particular findings.
Clause 585 empowers the Mental Health Tribunal to start or continue to
hear an application made before the commencement day under section 70 of
the repealed Act. To provide consistency with the new scheme, the Mental
Health Tribunal must apply the treatment criteria under clause 13 to the test
under section 70(3) of the repealed Act.
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Division 8--Miscellaneous provisions
Clause 586 provides continuity between the repealed Act and the new
scheme for appointment of the Director of Mental Health.
Clause 587 ensures that a committee in force under section 82 of the
repealed Act continues in force for 1 year after the commencement of that
section as inserted by the Guardianship and Administration Act 2000.
Clause 588 empowers the Mental Health Court or the president of the
Mental Health Review Tribunal to make an order to resolve a difficulty
arising in the transitional period. This is necessary, given the complexity of
the transitional provisions, and the potential for serious consequences in
particular cases (eg. if a transitional provision does not adequately provide
for the detention or the determination of charges for a Part 4 patient under
the repealed Act).
Use of this power is safeguarded by limiting it to a Supreme Court judge
or a tribunal that is properly constituted. In addition, the provision does not
empower the Court or Tribunal to make an order that is inconsistent with
the Mental Health Act 1974.
Clause 589 aims to ensure an unforseen matter may be resolved in the
transitional phase.
Whilst Part 2 of Chapter 16 (Transitional provisions) deals with all
anticipated matters necessary to effect the transition, there may be
unforeseen consequences that are not dealt with in the Bill. Given that a
principal purpose of the legislation is to protect the safety of persons with
mental illnesses and the general community, it is imperative that any
unintended consequences that may arise during the transition from the
repealed Act to the new Act be dealt with swiftly. As provided in clause
588, this is necessary, given the complexity of the transitional provisions,
and the potential for serious consequences.
The clause would only be used in exceptional circumstances. However,
if it were necessary to make a regulation under this section, the regulation
expires 1 year after it is made. Clause 589 itself expires 1 year after
commencement. Clause 589 mirrors similar provisions in other legislation
(eg. the Primary Industry Bodies Reform Act 1999).
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CHAPTER 17--AMENDMENTS OF ACTS
Clause 590 states that Schedule 1 amends the Acts mentioned in it.
SCHEDULE 1--AMENDMENTS OF ACTS
Part 1--Amendments of Mental Health Act 1974
commencing on assent
This Part provides for the establishment of special Patient Review
Tribunals to facilitate additional hearings of the Patient Review Tribunal.
The Part provides that a special Tribunal has the power to hear a review,
application or reference as if it were a regional Tribunal constituted under
section 14 of the Mental Health Act 1974 ("the current Act"). It is intended
the chairpersons will constitute Special Tribunals in their region from time
to time as required to meet the additional hearings necessary.
The Special Tribunals can be made up of current members of the Patient
Review Tribunals and new members appointed by the Governor in Council.
The new members must meet the requirements of appointment as required
in section 14(3) of the current Act. Effectively, the Part provides that a
Special Tribunal may be made up of members appointed under section 14A
(the inserted section) or from pre-existing regional panel members or both.
For example, a regional panel member can sit in another region as a
member of a Special Tribunal. Similarly, a regional member can sit with a
new member in their own region as a Special Tribunal.
Part 2--Amendments of Acts commencing after assent
Part 2 lists the Acts that are amended by the Bill on commencement of
the Mental Health Bill.
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Note the consequential amendment to the Guardianship and
Administration Act 2000 provides for the community visitor scheme set up
under that Act to apply to people with a mental illness receiving services at
an authorised mental health service. The amendment also enables reports
from the chief executive of the community visitor scheme to be provided to
the Director of Mental Health when relevant.
SCHEDULE 2--DICTIONARY
Schedule 2 defines terms used in the Bill.
© The State of Queensland 2000