MENTAL HEALTH ACT 2007 - SCHEDULE 6
MENTAL HEALTH ACT 2007 - SCHEDULE 6
SCHEDULE 6 – Savings, transitional and other provisions
Part 1 - General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts--this ActMental Health Legislation Amendment (Forensic Provisions) Act 2008Courts and Crimes Legislation Further Amendment Act 2008Health Legislation Amendment Act 2009 (but only to the extent that it amends this Act)Health Legislation Further Amendment Act 2010
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as--(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 - Provisions consequent on enactment of this Act
2 Definitions
In
this Part--
"the 1898 Act" means the Lunacy Act of 1898 .
"the 1958 Act" means the Mental Health Act 1958 .
"the 1983 Act" means the Mental Health Act 1983 .
"the 1990 Act" means the Mental Health Act 1990 .
3 General savings
(1) Any act, matter or thing done or omitted to be done under a provision of the 1990 Act and having any force or effect immediately before the commencement of a provision of this Act or the Mental Health (Criminal Procedure) Act 1990 that replaces that provision is, on that commencement, taken to have been done or omitted under the provision of this Act or the Mental Health (Criminal Procedure) Act 1990 .
(2) This clause does not apply--(a) to the extent that its application is inconsistent with any other provision of this Schedule or a provision of a regulation under clause 1, or(b) to the extent that its application would be inappropriate in a particular case.
4 Construction of certain references
(1) A reference (however expressed) in any other Act, in any instrument made under an Act or in any other instrument of any kind--(a) to an admission centre or a mental hospital, or both, within the meaning of the 1958 Act or to a hospital within the meaning of the 1990 Act--is to be read as a reference to a declared mental health facility, or(b) to an authorised hospital within the meaning of the 1958 Act or the 1990 Act--is to be read as a reference to a private mental health facility, or(c) to a hospital for the insane, a hospital for the criminal insane or a reception-house, or any combination of those expressions, within the meaning of the 1898 Act--is to be read as a reference to a mental health facility, or(d) to a licensed house within the meaning of the 1898 Act--is to be read as a reference to a private mental health facility.
(2) A reference (however expressed) in any other Act, in any instrument made under an Act or in any other instrument of any kind--(a) to a mentally ill person within the meaning of the 1958 Act or the 1990 Act--is to be read as a reference to a mentally ill person within the meaning of this Act, or(b) to a voluntary patient within the meaning of the 1958 Act or an informal patient within the meaning of the 1983 or 1990 Act--is to be read as a reference to a voluntary patient within the meaning of this Act, or(c) to a temporary patient within the meaning of the 1958 Act, the 1983 Act or the 1990 Act--is to be read as a reference to an involuntary patient within the meaning of this Act, or(d) to a continued treatment patient within the meaning of the 1958 Act, the 1983 Act or the 1990 Act--is to be read as a reference to an involuntary patient within the meaning of this Act, or(e) to a person under detention under Part 7 of the 1958 Act or a forensic patient within the meaning of the 1983 Act or the 1990 Act--is to be read as a reference to a forensic patient within the meaning of this Act, or(f) to a patient within the meaning of the 1958 Act--is to be read as a reference to a patient (other than a voluntary patient) within the meaning of this Act, or(g) to a person detained in an admission centre under section 12 of the 1958 Act--is to be read as a reference to a person taken to and detained in a mental health facility under Part 2 of Chapter 3 of this Act, or(h) to a patient or an insane patient, or both, within the meaning of the 1898 Act--is to be read as a reference to a patient (other than a voluntary patient) within the meaning of this Act, or(i) to a lunatic within the meaning of the 1898 Act--is to be read as a reference to a mentally ill person.
(3) A reference (however expressed) in any other Act, in any instrument made under an Act or in any other instrument of any kind--(a) to a provision of the 1958 Act or of the 1898 Act--is, except as provided by paragraph (c), to be read as a reference to the corresponding provision, if any, of this Act or of the Protected Estates Act 1983 , as the case requires, or(b) to the 1958 Act or the 1898 Act--is, except as provided by paragraph (c), to be read as a reference to this Act or the Protected Estates Act 1983 , as the case requires, or(c) to the keeping in strict custody pursuant to section 23 (3) of the 1958 Act of any person--is to be read as a reference to the detention of that person pursuant to section 25 or 39, as the case requires, of the Mental Health (Criminal Procedure) Act 1990 .
5 Mental health facilities
(1) A place that was, immediately before the repeal of section 208 of the 1990 Act, the subject of an order in force under that section is taken to be a declared mental health facility the subject of an order in force under section 109 of this Act and this Act applies accordingly.
(2) A place that was, immediately before the repeal of section 212 of the 1990 Act, licensed under that section is taken to be the subject of a licence in force under section 116 of this Act and this Act applies accordingly.
6 Medical superintendents and deputy medical superintendents
(1) A person appointed as a medical superintendent or a deputy medical superintendent of a hospital under the 1990 Act immediately before the repeal of the provision of that Act under which the person was appointed is taken to be appointed under the corresponding provision of this Act as the medical superintendent or deputy medical superintendent of the mental health facility concerned and this Act applies accordingly.
(2) The term of appointment of any such person as a medical superintendent or deputy medical superintendent ends on the day on which the term under the 1990 Act would have ended, subject to any re-appointment of the person under this Act.
7 Directors and deputy directors of health care agencies
A person appointed as the director or a deputy director of a heath care agency under the 1990 Act immediately before the repeal of the provision of that Act under which the person was appointed is taken to be appointed under this Act as the director of community treatment or deputy director of community treatment of the mental health facility concerned and this Act applies accordingly.
8 Official visitors
(1) A person appointed as an official visitor under section 226 or 228 of the 1990 Act immediately before the repeal of section 228 of that Act is taken to have been appointed under section 128 or 129, respectively, of this Act and this Act applies accordingly.
(2) The term of appointment of any such person as an official visitor ends on the day on which the term under the 1990 Act would have ended, subject to any re-appointment of the person under this Act.
9 Accredited persons
(1) A person appointed as an accredited person under section 287A of the 1990 Act immediately before the repeal of that section is taken to have been appointed under section 136 of this Act and this Act applies accordingly.
(2) The term of appointment of any such person as an accredited person ends on the day on which the term under the 1990 Act would have ended, subject to any re-appointment of the person under this Act.
10 Mental Health Review Tribunal
(1) A person appointed as a member of the Tribunal under the 1990 Act immediately before the repeal of section 252 of that Act is taken to have been appointed under this Act and this Act applies accordingly.
(2) The term of appointment of any such person as a member of the Tribunal ends on the day on which the term under the 1990 Act would have ended, subject to any re-appointment of the person under this Act.
(3) Any decision, determination, recommendation or finding or order made or other thing done by the Tribunal under the 1990 Act and having any force or effect immediately before the repeal of section 252 of that Act is taken to have been made or done by the Tribunal under the corresponding provision of this Act or the Mental Health (Criminal Procedure) Act 1990 .
11 Orders by prescribed authority
An order made by a prescribed authority under the 1990 Act, and in force under that Act immediately before the commencement of this clause, is taken to have been made under the Mental Health (Criminal Procedure) Act 1990 (as amended by this Act) and that Act applies accordingly.
12 Existing patients and persons detained in mental health facilities
(1) A person who was a temporary patient or a continued treatment patient under the 1990 Act immediately before the commencement of this subclause is taken to be an involuntary patient detained under this Act and this Act applies accordingly.
(2) A person who was detained in a hospital as a mentally ill person or a mentally disordered person under the 1990 Act immediately before the commencement of this subclause is taken to be so detained under this Act and this Act applies accordingly.
(3) A person who was a forensic patient under the 1990 Act immediately before the commencement of this subclause is taken to be a forensic patient within the meaning of this Act and this Act and the Mental Health (Criminal Procedure) Act 1990 (as amended by this Act) apply accordingly.
(4) For the purposes of the application of this Act or the Mental Health (Criminal Procedure) Act 1990 to a patient or person referred to in this clause, the person is taken to have been detained or classified as a patient under this Act or that Act on the day the person was so detained or classified under the 1990 Act.
13 Absence from hospitals
(1) A grant of leave of absence from a hospital (including permission to be absent from hospital) for a patient in force under a provision of the 1990 Act immediately before the commencement of this clause continues in force as if it were granted under the corresponding provision of this Act or, in the case of a forensic patient, the Mental Health (Criminal Procedure) Act 1990 (as amended by this Act) and this Act and that Act apply accordingly.
(2) A patient who was absent without leave from a hospital, or in breach of a condition of any such leave, immediately before the commencement of this clause may be apprehended and dealt with under this Act or the Mental Health (Criminal Procedure) Act 1990 as if the person were absent without leave from a mental health facility or in breach of a condition of leave granted under this Act or that Act.
14 Existing treatment orders
(1) A medical practitioner may, for the purposes of administering electro convulsive therapy, rely on a consent or certificate obtained, or a decision made by the Tribunal, in accordance with Part 1 of Chapter 7 of the 1990 Act and any such consent, certificate or decision is taken to have been obtained or made under this Act.
(2) A consent given under section 201 of the 1990 Act, and in force immediately before the commencement of this clause, continues to have effect for the purposes of carrying out the surgical operation concerned.
(3) A medical practitioner may, for the purposes of carrying out special medical treatment on a patient, rely on a consent obtained from or a decision made by the Tribunal or an authorised officer, in accordance with Part 2 of Chapter 7 of the 1990 Act and any such consent or decision is taken to have been obtained or made under this Act.
(4) For the purposes of subclause (3), the consent of an authorised officer is taken to be the consent of the Director-General.
15 Pending proceedings
Any proceedings pending, immediately before the commencement of this clause, under the 1990 Act before any court, the Tribunal, a Magistrate or any other person--
(a) are taken to be proceedings pending before the court, the Tribunal, Magistrate or other person before which or whom those proceedings could be brought under this Act or the Mental Health (Criminal Procedure) Act 1990 if those proceedings had been commenced on or after that commencement, and
(b) are to be continued before and disposed of by the court, Tribunal, Magistrate or person accordingly.
16 Supreme Court
(1) A person ordered to be brought before the Court for examination under section 285 of the 1990 Act, who is not examined before the repeal of that section, is to be examined and dealt with under section 166 of this Act.
(2) A person appointed as an assessor under section 283 of the 1990 Act immediately before the repeal of that section is taken to have been appointed under section 165 of this Act and this Act applies accordingly.
17 Interstate matters
Anything done or omitted under Chapter 10A of the 1990 Act, and having effect immediately before the repeal of that Chapter, is taken to have been done or omitted under the corresponding provision of Chapter 8 of this Act and, subject to that Chapter, has effect accordingly.
18 Patient accounts and trust funds
The following funds and accounts established under Part 3 of Chapter 8 of the 1990 Act are taken to be established under the corresponding provisions of the regulations and the regulations apply accordingly--
(a) any Patients Trust Fund,
(b) any Patients Amenities Account,
(c) a fund constituted under section 248 of the 1990 Act,
(d) the Interest Account.
Part 3 - Provisions consequent on enactment of Mental Health Legislation Amendment (Forensic Provisions) Act 2008
19 Definition
In this Part--
"amending Act" means the Mental Health Legislation Amendment (Forensic
Provisions) Act 2008 .
20 Community treatment orders
The amendments made by the amending Act to this Act and the Mental Health (Forensic Provisions) Act 1990 apply to community treatment orders in force immediately before the commencement of this clause.
Part 4 - Provisions consequent on enactment of Courts and Crimes Legislation Further Amendment Act 2008
21 Existing mental health inquiries
A mental health inquiry that was commenced, but not determined, before the substitution of section 34 by the Courts and Crimes Legislation Further Amendment Act 2008 may be determined in accordance with this Act as in force immediately before that substitution.
Part 5 - Provisions consequent on enactment of Health Legislation Further Amendment Act 2010
22 Service of notices
Section 58 as amended by the Health Legislation Further Amendment Act 2010 extends to a refusal or failure to comply with a community treatment order that occurred before the commencement of that amendment.
Part 6 - Provisions consequent on enactment of Mental Health Amendment (Statutory Review) Act 2014
23 Designated carers
A person who was the nominated primary carer for a person immediately before the amendment of section 71 by the Mental Health Amendment (Statutory Review) Act 2014 is taken to be the designated carer of that person for the purposes of this Act until the nomination is revoked or otherwise ceases to be in force under this Act.