MENTAL HEALTH ACT 1990 - As at 16 November 2007 - Act 9 of 1990

Table of Provisions

• Long Title

CHAPTER 1 - INTRODUCTORY

• 1 Name of Act
• 2 Commencement
• 3 Definitions
• 3A Notes

CHAPTER 2 - OBJECTS ETC

• 4 Care, treatment and control of mentally ill and mentally disordered persons
• 5 Additional administrative objects of Act
• 6 Objectives of the Department
• 7 Functions of the Director-General

CHAPTER 3 - MENTALLY ILL AND MENTALLY DISORDERED PERSONS

• 8 Criteria for involuntary admission etc as mentally ill person or mentally disordered person
• 9 Mentally ill persons
• 10 Mentally disordered persons
• 11 Certain words or conduct may not indicate mental illness or disorder

CHAPTER 4 - ADMISSION TO, AND CARE IN, HOSPITALS

PART 1 - VOLUNTARY ADMISSION TO HOSPITALS

• 12 Admission on own request
• 13 Informal patient under 16 years of age
• 14 Informal patient of 14 or 15 years of age
• 15 Admission etc of person under 14 years of age
• 16 Persons under guardianship
• 17 Medical superintendent may refuse to admit person
• 18 Other functions of medical superintendent concerning informal patients
• 18A Procedures for detaining patients
• 19 Review of decisions made by medical officer

PART 2 - INVOLUNTARY ADMISSION TO HOSPITALS

Division 1 - Admission to and detention in hospitals

• 20 Detention of persons generally
• 21 Detention on certificate of medical practitioner or accredited person
• 22 Assistance by police
• 23 Detention on request of relative or friend
• 24 Detention after apprehension by police
• 25 Detention on order of court
• 26 Detention on information of welfare officer
• 27 Detention following order for medical examination or observation
• 28 Refusal to detain
• 29 Examination on detention at hospital
• 30 Information to be given to detained person
• 31 Treatment of patients
• 32 Further examination at hospital
• 33 Consequence of further examination
• 34 Formation of opinion as to mental illness etc
• 35 Limited detention of mentally disordered persons
• 36 Persons detained after apprehension by police or brought to hospital on Magistrate's order
• 37 Limited detention of certain persons after examination at hospital
• 37A Persons ordered to be brought back before court

Division 2 - Inquiries relating to mentally ill persons

• 38 Notice of inquiry and other matters
• 39 Dress
• 40 Termination of detention
• 41 Inquiry concerning detained person
• 42 Adjournments
• 43 Representation and appearances at inquiries
• 44 Publication of names etc
• 45 Inspection etc of medical records
• 46 Administration of oath
• 47 Production of evidence
• 48 Records of proceedings
• 49 Matters to be checked by Magistrate
• 50 Matters which must be considered by Magistrate
• 51 Result of finding that person is mentally ill
• 52 Result of finding that person is not mentally ill
• 53 Record of decision
• 54 Classification of persons as informal patients

Division 3 - Temporary patients and continued treatment patients

• 55 Notice of temporary patient's rights of appeal
• 56 Bringing of certain temporary patients before the Tribunal
• 57 Determination by the Tribunal
• 58 Further bringing of certain temporary patients before the Tribunal
• 59 Further determination by the Tribunal

PART 3 - REVIEW, DISCHARGE, LEAVE AND TRANSFER OF PERSONS (OTHER THAN FORENSIC PATIENTS) IN HOSPITALS

• 60 Application of Part
• 61 Medical examination of continued treatment patients
• 62 Review of continued treatment patients by the Tribunal
• 63 Review of informal patients by the Tribunal
• 64 Classification of certain patients as informal patients
• 65 Discharge of informal patients
• 66 Discharge of temporary patients and continued treatment patients
• 67 Discharge etc of certain patients on patient's application
• 68 Discharge of certain patients on relative's or friend's application
• 69 Appeal against refusal to discharge
• 70 Determination of appeal
• 71 Leave of absence
• 72 Absence of patient for continuous period of not less than 28 days
• 73 Absence of patient for continuous period of not less than 12 months
• 74 Discharge of certain absent patients on certificate of medical practitioner
• 75 Medical superintendent may order apprehension of certain absent patients
• 76 Absence of patient without leave
• 77 Absence of patient with permission
• 78 Transfer of patients between hospitals

CHAPTER 5 - FORENSIC PATIENTS

PART 1 - RELATIONSHIP OF CHAPTER TO OTHER LEGISLATION

• 79 Other legislation relating to criminal proceedings involving persons who may be mentally ill or suffering from some other mental condition

PART 2 - REVIEW OF FORENSIC PATIENTS

• 80 Tribunal to review cases of persons found unfit to be tried
• 81 Tribunal to review cases of persons found not guilty by reason of mental illness
• 82 Tribunal to review cases of forensic patients
• 83 Notice of recommended releases
• 84 Release of persons after review
• 85 Treatment etc of persons found not guilty by reason of mental illness and forensic patients after review by Tribunal
• 86 Review of persons transferred from prisons
• 87 Review of persons to be transferred from prisons
• 88 Powers of Tribunal
• 89 Classification as continued treatment patient

PART 3 - OTHER PROVISIONS RELATING TO FORENSIC PATIENTS

• 90 Leave of absence on review of case
• 91 Leave of absence may be granted by authorised officer
• 92 Special leave of absence in emergencies
• 93 Breach of condition of order for release
• 94 Reinvestigation by Tribunal
• 95 Security conditions for forensic patients
• 96 Requests for transfer to prison
• 97 Transfer of mentally ill prisoners to hospitals
• 98 Transfer of other prisoners to hospitals
• 99 Transfer of forensic patients between hospitals
• 100 Effect on sentence etc of detention in hospital
• 100A Transfer of patients back to prison
• 101 Termination of classification as forensic patient of person found not guilty by reason of mental illness
• 102 Termination of classification as forensic patient of person awaiting special hearing
• 103 Termination of classification as forensic patient of person found guilty of offence after special hearing
• 104 Termination of classification as forensic patient of person who becomes fit to be tried for an offence
• 105 Termination of classification as forensic patient of person serving term of imprisonment for which no non-parole period set
• 106 Termination of classification as forensic patient of person serving sentence of imprisonment for life
• 107 Termination of classification as forensic patient of person serving term of imprisonment for which non-parole period set
• 108 Termination of classification as forensic patient of person on remand
• 109 Person who ceases to be a forensic patient may be detained as involuntary patient etc
• 110 Absence for medical treatment
• 111 Retaking of escapees
• 112 Aiding or permitting escape
• 113 Form, effect etc of orders under this Chapter

CHAPTER 6 - CARE AND TREATMENT OUTSIDE HOSPITALS

PART 1 - HEALTH CARE AGENCIES

• 114 Declaration of health care agencies
• 115 Directors and Deputy Directors
• 116 Psychiatric case managers
• 117 Same person may hold 2 offices

PART 2 - COMMUNITY COUNSELLING ORDERS

• 118 Making of community counselling orders
• 119 Procedure on application to Tribunal
• 120 Conditions precedent to making of community counselling order
• 121 Treatment plan not required for short term orders
• 122 Report required for certain applications
• 123 Appointment of medical practitioners for purposes of making orders
• 124 Duration of community counselling orders
• 124A Effect on order of informal admission to hospital
• 125 Progress reports
• 126 Discharge reports
• 127 Breach of community counselling order
• 128 Action on further breaches of community counselling order
• 129 Apprehension of person in breach of community counselling order
• 130 Apprehension by police

PART 3 - COMMUNITY TREATMENT ORDERS

• 131 Making of community treatment orders
• 132 Person to be discharged
• 133 Conditions precedent to making of community treatment order
• 134 Report required for certain applications
• 135 Duration of community treatment orders
• 135A Effect on order of informal admission to hospital
• 136 Discharge reports
• 137 Breach of community treatment order
• 138 Action on further breaches of community treatment order
• 139 Apprehension of person in breach of community treatment order
• 140 Apprehension by police
• 141 Procedure at health care agency
• 142 Procedure at hospital
• 143 Effect of review by medical superintendent
• 143A Review by Tribunal of detained persons

PART 4 - GENERAL

• 144 Reports
• 145 Duty of affected person
• 146 Powers and duties of health care agencies
• 147 Use of drugs
• 148 Variation or revocation of order
• 149 Revocation by Director
• 150 Delegation
• 151 Appeals

CHAPTER 7 - MEDICAL OR THERAPEUTIC TREATMENTS RELATING TO MENTAL ILLNESS OR GIVEN TO PATIENTS

PART 1 - TREATMENT FOR MENTAL ILLNESS

Division 1 - Psychosurgery

• 152 Psychosurgery Review Board
• 153 Psychosurgery on patients to be performed only with consent of Board
• 154 Consent of patient required
• 155 Requirements for obtaining informed consent
• 156 Persons presumed incapable of giving informed consent
• 157 Application for permission to perform psychosurgery
• 158 Procedure for convening hearing of application
• 159 Attendance and representation at hearing
• 160 Hearing open to public
• 161 Hearing of application
• 162 Publication of names etc
• 163 Assistance by interpreters
• 164 Inspection etc of medical records
• 165 Administration of oath
• 166 Production of evidence
• 167 Records of proceedings
• 168 Record of decision
• 169 Circumstances in which Board may consent to psychosurgery
• 170 Form of consent
• 171 Circumstances in which Board must refuse to consent to psychosurgery
• 172 Notice of decision
• 173 Lapse of consent
• 174 Board may state case for Court's opinion
• 175 Determination of stated case
• 176 Granting of consent on remission of application
• 177 Report of operation etc
• 178 Review and research

Division 2 - Electro convulsive therapy and certain prescribed treatments

• 179 Application of Division
• 180 Administration of treatment
• 181 Persons who must be present during administration of electro convulsive therapy
• 182 Places at which treatment may be administered
• 183 Requirements for obtaining informed consent
• 184 Persons presumed incapable of giving informed consent
• 185 Circumstances in which treatment may be administered with consent--persons other than involuntary patients
186. (Repealed)
• 187 Circumstances in which treatment may be administered to involuntary patients etc
• 188 Application to Tribunal to administer treatment to involuntary patients
189. (Repealed)
• 190 Notice of inquiry to obtain or determine consent
• 191 Inquiry
• 192 Matters to be checked by Tribunal
• 193 Matters which must be considered by Tribunal
• 194 Result of inquiry
• 195 Refusal of treatment by medical superintendent
• 196 Register

Division 3 - Prohibited treatments

• 197 Prohibited treatments
• 198 Administration of drugs--generally
• 199 Administration of drugs in hospitals

PART 2 - TREATMENTS CARRIED OUT ON PATIENTS

• 200 Application of Part
• 201 Cases of emergency
• 202 Effect of consent
• 203 Notice of operation to be given
• 204 Special medical treatment
• 205 Applications for consent to the carrying out of certain operations and treatments other than in an emergency
• 206 Application for consent
• 207 Hearing and determination of application

CHAPTER 8 - ESTABLISHMENT AND ADMINISTRATION OF HOSPITALS

PART 1 - HOSPITALS

Division 1 - Hospitals other than authorised hospitals

• 208 Establishment of hospitals other than authorised hospitals
• 209 Appointment of medical superintendents
• 210 Appointment of deputy medical superintendents

Division 2 - Authorised hospitals

• 211 Application for licence
• 212 Grant or refusal of licence
• 213 Duration of licence
• 214 Annual statement and licence fee
• 215 Duplicate licence
• 216 Cancellation of licences--generally
• 217 Cancellation of licences--failure to show cause
• 218 Variation of licence
• 219 Medical services in authorised hospitals
• 220 Appointment of medical superintendent
• 221 Duties of medical superintendent
• 222 Appointment of deputy medical superintendent
• 223 Functions of deputy medical superintendent
• 224 Offence where hospital no longer authorised
• 225 Certain private hospitals to be licensed

PART 2 - OFFICIAL VISITORS AND OTHER OFFICERS

• 226 Appointment of Principal official visitor
• 227 Functions of Principal official visitor
• 228 Appointment of official visitors
• 229 General provisions relating to the Principal official visitor and official visitors
• 230 Inspection of hospitals
• 231 Access to be given to official visitors and other matters
• 232 Other functions of official visitors
• 233 Reports to Minister
• 234 Request by patient or other person to see official visitor
• 234A Official visitors not personally liable
• 235 Appointment of authorised officers
• 236 Functions of authorised officers
• 237 Inspection etc of hospitals
• 238 Powers of authorised officer visiting hospital
• 239 Information may not be used to incriminate
• 240 Restriction on exercise of functions of certain authorised officers
• 241 Prohibited interests of authorised officers
• 242 Appointment of welfare officers
• 243 Functions of welfare officers

PART 3 - PATIENTS FUNDS AND ACCOUNTS

• 244 Trust funds
• 245 Patients Trust Fund
• 246 Withdrawals from patients' accounts
• 247 Discharge or death of patient
• 248 Patients' accounts to form one fund
• 249 Payments to and from Interest Account
• 250 Distribution of Interest Account
• 251 Patients Amenities Account

CHAPTER 9 - MENTAL HEALTH REVIEW TRIBUNAL

PART 1 - THE TRIBUNAL

• 252 Constitution of the Tribunal
• 252A Part-time arrangements
• 253 Additional provisions relating to members
• 254 Seal of the Tribunal
• 255 Functions of the Tribunal
• 256 Registrar and other officers of the Tribunal
• 257 Authentication of documents
• 258 Judicial notice of certain signatures
• 259 Certain proceedings prohibited
• 260 Application of Defamation Act 2005 to proceedings of Tribunal
• 261 Annual report
• 262 Service of documents on Tribunal
• 263 Delegation

PART 2 - PROCEEDINGS OF THE TRIBUNAL

• 264 Composition of the Tribunal generally
• 265 Composition of the Tribunal for dealing with forensic patients
• 266 Meetings of the Tribunal
• 267 Procedure at meetings of the Tribunal
• 268 Determination whether a person is a mentally ill person etc
• 269 Appointment of person to assist the Tribunal
• 270 Chairperson and votes of members
• 271 Adjournment
• 272 Proceedings open to public
• 273 Publication of names etc
• 274 Rights of appearance and representation
• 275 Assistance of interpreters
• 276 Inspection etc of medical records
• 277 Administration of oath
• 278 Production of evidence
• 279 Records of proceedings before the Tribunal
• 280 Record of determinations etc

CHAPTER 10 - JURISDICTION OF SUPREME COURT

• 281 Appeals to the Court
• 282 Nomination of assessors
• 283 Functions of assessors on hearing of appeals
• 284 Power of the Court on appeals
• 285 Court may order discharge or transfer of patient
• 286 Other jurisdiction of the Court not affected

CHAPTER 10A - INTERSTATE APPLICATION OF MENTAL HEALTH LAWS

PART 1 - PRELIMINARY

• 286A Object of Chapter
• 286B Definitions
• 286C Authority to enter into agreements
• 286D Corresponding laws, documents and interstate community treatment orders
• 286E New South Wales officers may exercise functions under corresponding laws

PART 2 - TRANSFER OF PATIENTS AND PERSONS

Division 1 - Transfer of persons from this State

• 286F Admission of persons to hospitals in other States
• 286G Effect of certificates
• 286H Transfer of patients from this State

Division 2 - Transfer of persons to this State

• 286I Admission of interstate persons to hospitals in this State
• 286J Application of Act to persons brought to hospital from outside this State
• 286K Transfer of interstate persons to hospitals in this State
• 286L Application of Act to persons brought to hospital from outside this State

PART 3 - COMMUNITY TREATMENT ORDERS AND OTHER ORDERS

• 286M Community treatment orders relating to interstate persons
• 286N Orders relating to New South Wales residents

PART 4 - APPREHENSION OF PERSONS ABSENT FROM HOSPITAL OR IN BREACH OF ORDERS

• 286O Recognition of warrants and orders
• 286P Apprehension of interstate persons absent without leave or in breach of corresponding orders
• 286Q Regulations relating to apprehension of persons

CHAPTER 11 - MISCELLANEOUS

• 287 Restrictions on holding of certain offices
• 287A Accredited persons
• 287B Chief Health Officer may delegate functions
• 288 Legal representation of mentally ill persons and other persons
• 289 Disclosure of information
• 290 Withholding of certain correspondence of patients and other persons
• 291 Contempt of Tribunal etc
• 292 Assistance of interpreters
• 293 Information as to follow-up care after discharge
• 294 Liability of police officers and health care professionals exercising functions under this Act
• 295 Service of notices etc
• 296 Amendment of certain documents
• 297 Offences in relation to certain certificates
• 298 Ill-treatment etc of patients
• 299 Proceedings for offences
• 300 Information as to types and dosages of medications
• 301 Annual report
• 302 Regulations
• 302A Approved forms
• 303 Savings, transitional and other provisions
• 304 Report by Minister
• SCHEDULE 1
• SCHEDULE 2
• SCHEDULE 3
• SCHEDULE 4
• SCHEDULE 5
• SCHEDULE 6
• SCHEDULE 7
Explanatory note