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This is a Bill, not an Act. For current law, see the Acts databases.
MENTAL HEALTH AND RELATED SERVICES AMENDMENT BILL 2007
Mental Health and Related Services Amendment Bill
2007
Ms
Lawrie
AN ACT
to
amend the Mental Health and Related Services Act
NORTHERN TERRITORY OF
AUSTRALIA
MENTAL HEALTH AND RELATED SERVICES AMENDMENT
ACT 2007
____________________
Act No. [ ] of 2007
____________________
TABLE OF PROVISIONS
Section
NORTHERN TERRITORY OF
AUSTRALIA
____________________
Act No. [ ] of 2007
____________________
AN ACT
[Assented to [ ]
2007]
[Second reading [ ]
2007]
The Legislative Assembly of the Northern Territory enacts
as follows:
Short title
This Act may be cited as the Mental Health and Related
Services Amendment Act 2007.
Commencement
This Act commences on the date fixed by the Administrator
by Gazette notice.
Act amended
This Act amends the Mental Health and Related
Services Act.
Amendment of section 3 (Objects)
Section 3(k)
omit
and to hear appeals
Amendment of section 4 (Definitions)
(1) Section 4, definitions "ambulance officer", "imminent",
"primary care provider" and "Secretary"
omit
(2) Section 4
insert (in alphabetical order)
"adult guardian" means a guardian as defined in section 3(1)
of the Adult Guardianship Act;
"ambulance officer" means a person:
(a) employed as an ambulance officer, or engaged as a
volunteer ambulance officer, by an approved ambulance service at the level of
qualified ambulance officer or above; or
(b) appointed under section 24;
"approved ambulance service" means an ambulance service
approved by the CEO;
"CEO" means the Chief Executive Officer;
"community" includes a prison as defined in section 5 of the
Prisons (Correctional Services) Act;
"community management order", see section
123(5)(c);
"community visitor", see sections 103(1) and
103B(1);
"community visitors panel", see section
110(1);
"criteria", see:
(a) for the involuntary admission of a person on the grounds
of mental illness – section 14; and
(b) for the involuntary admission of a person on the grounds
of mental disturbance – section 15; and
(c) for the involuntary treatment or care of a person in the
community – section 16;
"financial protection order", see section
168(2);
"interim community management order", see sections 38(2)(c),
44(2)(c) and 45(1);
"nominated next of kin", for a person, means someone
nominated in the person's medical records as the person's next of
kin;
"person-in-charge", of an approved treatment facility or
approved treatment agency, means a person appointed as the
person-in-charge of the facility or agency under
section 21(1);
"primary carer", see section 7A;
"principal community visitor", see section
101(1);
"psychiatric case manager", see section
51(1);
"senior next of kin", see section 3 of the Coroners
Act;
"special community visitors panel", see section
112A(1);
"voluntary treatment plan" means a treatment plan for a
person requested from the Chief Health Officer by the court under section
78(2).
(3) Section 4, definition "approved"
omit
Secretary
substitute
CEO
(4) Section 4, definition "approved treatment
agency"
omit
20(1)(b)
substitute
20(1)(c)
Amendment of section 6 (Mental illness)
Section 6(2)
omit
all the words after "standards"
New section 7A
After section 7
insert
(1) A primary carer for a person is:
(a) someone providing care and support to the person because
of his or her sense of responsibility as a relative of, or someone close to, the
person; or
(b) if the person does not have anyone providing care and
support as mentioned in paragraph (a) – someone most closely involved in
the treatment or care of, or support to, the person.
(2) For this section, a relative of the person includes
anyone related to the person through a relationship that arises through common
ancestry, adoption, marriage, de facto relationship or any customary law or
tradition (including Aboriginal customary law or tradition).
Amendment of section 9 (Principles relating to provision of
treatment and care)
Section 9(n)
omit
all the words from "where" to "background,"
Amendment of section 12 (Principles relating to rights of
carers)
(1) Section 12, heading, after
"carers"
insert
and families
(2) After section 12(b)
insert
(c) as far as practicable and appropriate, family members
should be consulted and involved in the person's treatment and
care.
Amendment of section 13 (Principles relating to rights and
conditions in approved treatment facilities)
Section 13(e)
omit
this Act
substitute
section 92
Amendment of Part 3 heading
Part 3, heading, after "ADMISSION"
insert
AND TREATMENT
Amendment of section 14 (Involuntary admission on grounds of
mental illness
Section 14(b)(ii)
omit, substitute
(ii) without the treatment, the person is likely
to:
(A) cause serious harm to himself or herself or to someone
else; or
(B) suffer serious mental or physical deterioration;
and
Amendment of section 15 (Involuntary admission on grounds of
mental disturbance)
Section 15(c)(i)
omit, substitute
(i) is likely to cause serious harm to himself or herself or
to someone else; or
Amendment of section 16 (Involuntary treatment in
community)
Section 16(b)(i) and (ii)
omit, substitute
(i) the person requires treatment or care;
and
(ii) without the treatment or care, the person is likely
to:
(A) cause serious harm to himself or herself or to someone
else; or
(B) suffer serious mental or physical deterioration;
and
Amendment of section 17 (Powers and functions of
Secretary)
(1) Section 17, heading
omit
Secretary
substitute
CEO
(2) Section 17(1)
omit
Secretary
substitute
CEO
(3) Section 17(1)(a)
omit
oversight
substitute
oversee
(4) Section 17(2) and (3)
omit
Secretary
substitute
CEO
(5) After section 17(3)
insert
(3A) However, the CEO must not give directions under
subsection (3) to any of the following:
(a) a community visitor;
(b) the principal community visitor;
(c) a member of:
(i) a community visitors panel; or
(ii) a special community visitors panel; or
(iii) the Tribunal.
Amendment of section 18 (Approved procedures)
(1) Section 18(1)
omit
Secretary
substitute
CEO
(2) After section 18(1)
insert
(1A) However, the CEO must not approve procedures under
subsection (1) for any of the following:
(a) Part 14, except the procedures under that Part relating
to the Agency;
(b) the Tribunal.
Repeal and substitution of section 19
Section 19
repeal, substitute
(1) The following may delegate to a person any of his or
her powers or functions under this Act:
(a) the Minister;
(b) the CEO;
(c) the Chief Health Officer;
(d) the principal community visitor;
(e) the Director of Correctional Services.
(2) The delegation must be in writing.
Amendment of section 21 (Persons-in-charge of approved
treatment facilities and agencies)
(1) Section 21(1)
omit
Secretary
substitute
CEO
(2) Section 21(2)
omit, substitute
(2) The person-in-charge of an approved treatment facility
is responsible for the care and welfare of persons receiving treatment and care
at the facility.
(3) The person-in-charge of an approved treatment agency is
responsible for the treatment and care of persons receiving services from the
agency.
Amendment of section 22 (Authorised psychiatric
practitioners)
(1) Section 22(1)
omit
Secretary
substitute
CEO
(2) Section 22(2)
omit, substitute
(2) A person must not be appointed as an authorised
psychiatric practitioner unless:
(a) the person:
(i) has the qualifications specified in subsection (3);
or
(ii) is a person to whom subsection (4) applies;
and
(b) the person has successfully completed an approved
training and orientation course.
(3) The person has the qualifications for subsection
(2)(a)(i) if the person:
(a) is entitled under a law of a State or Territory to
practise as a specialist in the medical specialty of psychiatry;
or
(b) has qualifications entitling the person to fellowship of
the Royal Australian and New Zealand College of Psychiatrists;
or
(c) is employed as a specialist or consultant in the medical
specialty of psychiatry by the Commonwealth, a State or Territory, or an agency
or authority of the Commonwealth, a State or Territory; or
(d) is employed as a psychiatrist by the Commonwealth, a
State or Territory, or an agency or authority of the Commonwealth, a State or
Territory.
(4) This subsection applies to a person for subsection
(2)(a)(ii) if:
(a) the person is employed as:
(i) a medical practitioner by an approved treatment facility
or approved treatment agency; or
(ii) a psychiatric registrar by the Commonwealth, a State or
Territory, or an agency or authority of the Commonwealth, a State or Territory;
and
(b) the appointment complies with approved
procedures.
Amendment of section 23 (Designated mental health
practitioners)
(1) Section 23(1) and (2)
omit
Secretary
substitute
CEO
(2) After section 23(2)
insert
(2A) The CEO may appoint an employee of the Agency to be a
designated mental health practitioner.
(3) Section 23(4)
omit, substitute
(4) An appointment of a person under subsection (2) remains
in force only while the person continues to be employed at the facility or
agency (as the case may be).
(5) An appointment of a person under subsection (2A)
remains in force only while the person is an employee of the
Agency.
Amendment of section 25 (Voluntary admission)
(1) Section 25(4)
omit
24
substitute
72
(2) After section 25(4)
insert
(4A) If it is not practicable for the practitioner to
conduct a face-to-face examination under subsection (4), the practitioner may
conduct the examination:
(a) by interactive video conferencing; or
(b) if interactive video conferencing is not available
– by telephone.
(3) Section 25(9)(a)
omit
appeal to the Tribunal
substitute
apply to the Tribunal for a review of the
decision
(4) Section 25(9)(b)
omit
appeal
substitute
review
Repeal and substitution of section 26
Section 26
repeal, substitute
26. Admission
of persons under 18 as voluntary patients
(1) A person under 18 must not be admitted to an approved
treatment facility as a voluntary patient unless the person can be cared for and
treated:
(a) in a way that gives due regard to the person's age,
culture, gender and maturity; and
(b) if appropriate and possible – separately from
persons who are 18 or over.
(2) As soon as practicable after a person under 18 is
admitted to an approved treatment facility as a voluntary patient, a
practitioner must notify a parent or guardian of the person that the person has
been so admitted.
(3) However, the practitioner may decide not to notify a
parent or guardian of the person if the practitioner is of the opinion that
giving the notification is not in the person's best interests.
(4) If the practitioner decides not to notify a parent or
guardian of the person because of subsection (3), the practitioner must give to
the Tribunal a written report of the decision and the reason for it in the
approved form.
(5) A notification under subsection (2) may be given orally
or in writing but must be in a language that can be understood by the receiver
of the notification.
(6) If a practitioner believes, on reasonable grounds, the
person has suffered or is suffering maltreatment, the practitioner must notify
an authorised person not later than 48 hours after the
admission.
(7) A practitioner must make a record of each of the
following in accordance with approved procedures:
(a) a notification under subsection (2);
(b) a decision under subsection (3) not to notify a parent
or guardian of the person and the reasons for it;
(c) a notification to an authorised person under subsection
(6).
(8) In this section:
"authorised person", see section 4(1) of the Community
Welfare Act;
"practitioner" means an authorised psychiatric practitioner,
a medical practitioner, or the senior nurse on duty at the approved treatment
facility to which the person is admitted.
Amendment of section 27 (Admission of persons under
guardianship as voluntary patients)
(1) Section 27(3)(a)
omit
appeal to the Tribunal
substitute
apply to the Tribunal for a review of the
decision
(2) Section 27(3)(b)
omit
appeal
substitute
review
Amendment of section 28 (Notification of
admission)
(1) Section 28
omit
3
substitute
6
(2) Section 28(a)
omit
Secretary
substitute
CEO
Amendment of section 30 (Detention for 6
hours)
(1) Section 30, heading
omit, substitute
Detention by medical practitioner or
nurse
(2) Section 30(3) and (4)
omit, substitute
(3) Reasonable force may be used to detain a person under
this section.
(4) While the person is detained under this
section:
(a) mechanical restraint may be applied to the person under
section 61; and
(b) the person may be kept in seclusion under section
62.
Amendment of section 31 (Powers of ambulance officers to
detain for 6 hours)
(1) Section 31, heading
omit, substitute
Detention by ambulance officer
(2) Section 31(2)(a) and (b)
omit, substitute
(a) to prevent the person causing serious harm to himself or
herself or to someone else; or
(b) to prevent behaviour of the person likely to cause
serious harm to the person or to someone else; or
(3) Section 31(3)(b)
omit
deliver
substitute
send
(4) After section 31(3)
insert
(4) For subsection (3)(b), the form may be sent by fax or
email.
Amendment of section 32 (Request for
assessment)
(1) Section 32(2), before "welfare"
insert
health or
(2) Section 32(5)
omit
all the words after "a person"
substitute
if the practitioner is otherwise satisfied the person is not
in need of treatment under this Act.
New section 32A
After section 32
insert
32A. Apprehension
by police
(1) This section applies if a police officer believes, on
reasonable grounds:
(a) a person may require treatment or care under this Act
having regard to the appearance and behaviour of the person;
and
(b) the person is likely to cause serious harm to himself or
herself or to someone else unless apprehended immediately; and
(c) it is not practicable in the circumstances to seek the
assistance of an authorised psychiatric practitioner, a medical practitioner or
a designated mental health practitioner.
(2) The police officer may apprehend the person and bring
the person to an authorised psychiatric practitioner, a medical practitioner or
a designated mental health practitioner for an assessment under section
33.
(3) The person must be brought to the practitioner as soon
as practicable.
(4) However, before the person is brought to the
practitioner, the police officer must inform the person that he or she has been
apprehended for the purposes of an assessment by a practitioner under this
Act.
(5) The police officer must give the practitioner details
of:
(a) the reasons for apprehending the person;
and
(b) any force used to apprehend the person and bring the
person to the practitioner.
(6) For subsection (1)(a), the police officer is not
required to exercise any clinical judgment in forming a belief that the person
requires treatment or care under this Act.
(7) For subsection (2), the police officer
may:
(a) use any reasonable force and assistance;
and
(b) enter private premises or any other private place where
the police officer reasonably believes the person may be found.
Amendment of section 34 (Recommendation for psychiatric
examination)
(1) Section 34(1)
omit
he or she
substitute
the practitioner
(2) Section 34(2) to (4)
omit, substitute
(2) The recommendation for psychiatric examination must be
in the approved form.
(3) The recommendation authorises the practitioner, an
ambulance officer or anyone else specified in the recommendation to do any of
the following:
(a) to control the person and bring the person to an
approved treatment facility for an assessment of the person;
(b) if the person cannot be brought immediately to an
approved treatment facility – to hold the person at a hospital (or other
place where the person can be safely held) until it becomes practicable to do
so;
(c) without the approval of the Tribunal – to
administer treatment immediately necessary:
(i) to prevent the person causing serious harm to himself or
herself or to someone else; or
(ii) to prevent behaviour of the person likely to cause
serious harm to the person or to someone else; or
(iii) to prevent further physical or mental deterioration of
the person; or
(iv) to relieve acute symptomatology;
(d) to detain the person at an approved treatment facility
for up to 24 hours.
(4) The recommendation may authorise a police officer to
exercise, or to assist someone else exercising, the powers under subsection
(3)(a) if the practitioner considers there is no other alternative in the
circumstances.
(5) The practitioner must revoke the recommendation if,
after a further assessment of the person, the practitioner is no longer
satisfied the person fulfils the criteria for involuntary admission on the
grounds of mental illness or mental disturbance.
(6) On revoking the recommendation, the practitioner
must:
(a) release the person; and
(b) give to the Tribunal a written report of the revocation
and the reasons for the revocation in the approved form.
(7) The recommendation remains in force for 14 days from
the date it is made unless, in the meantime:
(a) the practitioner revokes the recommendation under
subsection (5); or
(b) an examination of the person has been conducted pursuant
to the recommendation.
(8) For subsection (3), the practitioner, ambulance officer
or anyone specified in the recommendation (the "authorised officer")
may:
(a) use reasonable force and assistance;
and
(b) enter private premises or any other private place where
the authorised officer reasonably believes the person may be
found.
Repeal and substitution of section 37
Section 37
repeal, substitute
(1) A practitioner or police officer may apply to the
Tribunal for a warrant to apprehend a person.
(2) The application may be made in writing or by telephone,
fax or other form of electronic communication.
(3) The Tribunal may issue the warrant if
satisfied:
(a) the person may be unable to care for himself or herself;
and
(b) the person may fulfil the criteria for involuntary
admission on the grounds of mental illness or mental disturbance;
and
(c) all other reasonable avenues to assess the person have
been exhausted.
(4) The warrant remains in force for 14 days from its date
of issue unless, in the meantime:
(a) the Tribunal revokes the warrant; or
(b) an assessment of the person has been
conducted.
(5) If the warrant is issued, a copy of the warrant may be
sent by fax or email to the applicant or anyone else who may apply for the
warrant (the "recipient").
(6) The Tribunal must send the warrant to the recipient
within 7 days after the warrant is issued.
(7) A copy of the warrant has effect as if it were the
warrant.
(8) The warrant authorises a practitioner:
(a) to apprehend and control the person;
and
(b) to conduct an assessment of the person.
(9) The warrant authorises a police
officer:
(a) to apprehend and control the person;
and
(b) to bring the person to a practitioner for an assessment
of the person.
(10) If a practitioner or police officer believes, on
reasonable grounds, a warrant has been issued under this section for a person,
the practitioner or police officer may apprehend and control the
person.
(11) As soon as possible after a person is apprehended
under subsection (10), the practitioner or police officer:
(a) must inform the person that the practitioner or police
officer, as the case may be:
(i) believes a warrant has been issued for the person under
this section; and
(ii) is authorised to apprehend the person and, subject to
verification of the warrant, make arrangements for an assessment of the person
by a practitioner; and
(b) must take steps to verify that a warrant has been issued
for the person; and
(c) must:
(i) if a warrant has been issued – contact the
practitioner or police officer to whom the warrant was issued and make
arrangements for an assessment of the person by a practitioner;
or
(ii) otherwise – release the person.
(12) For this section, the Tribunal may be constituted by
the President.
(13) For subsection (8), (9) or (10), the practitioner or
police officer may:
(a) use reasonable force and assistance;
and
(b) enter private premises or any other private place where
the practitioner or police officer reasonably believes the person may be
found.
(14) In this section:
"practitioner" means an authorised psychiatric practitioner,
a medical practitioner or a designated mental health
practitioner.
Amendment of section 39 (Involuntary admission on grounds of
mental illness)
(1) Section 39(1)(b)
omit, substitute
(b) if an authorised psychiatric practitioner makes the
recommendation for psychiatric examination of the person before the admission
– for up to 14 days after the examination.
(2) Section 39(3)(a)
omit
7 days
substitute
14 days after the examination
(3) Section 39(5)
omit, substitute
(5) If it is not practicable for the authorised psychiatric
practitioner to conduct a face-to-face examination under subsection (2), the
practitioner may conduct the examination:
(a) by interactive video conferencing; or
(b) if interactive video conferencing is not available
– by telephone.
Amendment of section 40 (On-going
examinations)
(1) Section 40(1)
omit
involuntarily
substitute
involuntary
(2) Section 40(3)
omit, substitute
(3) An authorised psychiatric practitioner must discharge
the person if, after examining the person, the practitioner is satisfied the
person no longer meets the criteria for involuntary admission.
(4) The practitioner must discharge the person under
subsection (3) despite any order made for the person by the Tribunal under
section 122(2)(b) or 123(5)(a).
Repeal and substitution of section 41
Section 41
repeal, substitute
41. Notification
of admission on grounds of mental illness
(1) No
later than one day after a person is detained at an approved treatment facility
under section 39(1)(a) or (b) or (3)(a), a practitioner must notify the
following:
(a) the person;
(b) the person's adult guardian;
(c) a legal practitioner acting or prepared to act for the
person;
(d) subject to subsection (2) – the person's primary
carer;
(e) if the person is detained under section 39(1)(b) or
(3)(a):
(i) the principal community visitor; and
(ii) the Tribunal.
(2) The practitioner may decide not to notify the person's
primary carer if the practitioner is of the opinion that giving the notification
is not in the person's best interests.
(3) If the practitioner decides not to notify the primary
carer because of subsection (2), the practitioner must give to the Tribunal a
written report of the decision and the reason for it in the approved
form.
(4) A notification under subsection (1) must
state:
(a) the person is detained at the approved treatment
facility following the admission of the person as an involuntary patient on the
grounds of mental illness; and
(b) whether the person is detained under section 39(1)(a) or
(b) or (3)(a); and
(c) if the person is detained under section 39(3)(a) –
the person's right to apply to the Tribunal for a review of the decision to
detain the person for the further period.
(5) The notification may be given orally or in writing but
must be in a language that can be understood by the receiver of the
notification.
(6) A practitioner must make a record of each of the
following in accordance with approved procedures:
(a) a notification under subsection (1);
(b) a decision under subsection (2) not to notify the
primary carer and the reasons for it.
(7) In this section:
"practitioner" means an authorised psychiatric practitioner,
a medical practitioner, or the senior nurse on duty at the approved treatment
facility.
Repeal and substitution of sections 42 and 43
Sections 42 and 43
repeal, substitute
42. Detention
following involuntary admission on grounds of mental
disturbance
(1) A person admitted to an approved treatment facility as
an involuntary patient on the grounds of mental disturbance may be detained for
up to 72 hours on those grounds.
(2) The person may be detained for a further period of up
to 7 days if, after examining the person, 2 authorised psychiatric practitioners
are satisfied:
(a) if the person is released and does not receive treatment
or care under this Act, the person:
(i) is likely to cause serious harm to himself or herself or
to someone else; or
(ii) will represent a substantial danger to the general
community; or
(iii) is likely to suffer serious mental or physical
deterioration; and
(b) the person is not capable of giving informed consent to
the treatment or care or has unreasonably refused to consent to the treatment or
care; and
(c) there is not a less restrictive way of ensuring the
person receives the treatment or care.
Note for subsections (1) and (2)
Before the expiry of the period mentioned in subsection (1) or (2), any
of the following may occur:
(a) the person may be admitted as a voluntary patient under Part
5;
(b) following an examination under section 44(1) or a review of the
person's admission under section 123:
(i) the person may be admitted as an involuntary patient on the grounds
of mental illness; or
(ii) an interim community management order may be made for the person;
or
(iii) the person may be released.
(3) For subsection (2), the examination by the 2
practitioners may consist of an examination conducted under section 44(1)(a) and
a separate examination conducted by another practitioner.
(4) If it is not practicable for a practitioner to conduct
a face-to-face examination for subsection (2), the practitioner may conduct the
examination:
(a) by interactive video conferencing; or
(b) if interactive video conferencing is not available
– by telephone.
43. Notification
of admission on grounds of mental disturbance
(1) No
later than one day after a person is detained at an approved treatment facility
under section 42(1) or (2), a practitioner must notify the
following:
(a) the person;
(b) the person's adult guardian;
(c) a legal practitioner acting or prepared to act for the
person;
(d) subject to subsection (2) – the person's primary
carer;
(e) if the person is detained under section
42(2):
(i) the principal community visitor; and
(ii) the Tribunal.
(2) The practitioner may decide not to notify the person's
primary carer if the practitioner is of the opinion that giving the notification
is not in the person's best interests.
(3) If the practitioner decides not to notify the primary
carer because of subsection (2), the practitioner must give to the Tribunal a
written report of the decision and the reason for it in the approved
form.
(4) A notification under subsection (1) must
state:
(a) the person is detained at the approved treatment
facility following the admission of the person as an involuntary patient on the
grounds of mental disturbance; and
(b) whether the person is detained under section 42(1) or
(2); and
(c) if the person is detained under section 42(2) –
the person's right to apply to the Tribunal for a review of the decision to
detain the person for the further period.
(5) The notification may be given orally or in writing but
must be in a language that can be understood by the receiver of the
notification.
(6) A practitioner must make a record of each of the
following in accordance with approved procedures:
(a) a notification under subsection (1);
(b) a decision under subsection (2) not to notify the
primary carer and the reasons for it.
(7) In this section:
"practitioner" means an authorised psychiatric practitioner,
a medical practitioner, or the senior nurse on duty at the approved treatment
facility.
Amendment of section 44 (Review of admission)
(1) Section 44(2)(a)
omit
(2) Section 44(3)
omit, substitute
(2A) Following an examination under subsection (1)(a), if
the authorised psychiatric practitioner is satisfied the person fulfils the
criteria for involuntary admission on the grounds of mental disturbance, the
practitioner must continue to detain the person under section
42(1).
(2B) Following an examination under subsection (1)(b), if
the authorised psychiatric practitioner is satisfied section 42(2)(a) to (c)
applies to the person, the practitioner must continue to detain the person under
section 42(2).
(3) An authorised psychiatric practitioner who took an
action under subsection (2), (2A) or (2B) must make a note in the person's case
notes of the reason for taking the action.
(3) Section 44(4)
omit
imminent harm to other persons on his or her
release
substitute
serious harm to someone else on release
Amendment of section 45 (Interim community management
order)
(1) Section 45(3)
omit
7
substitute
14
(2) Section 45(4)
omit, substitute
(4) Treatment must not be administered under an interim
community management order except for the following purposes:
(a) to
prevent the person causing serious harm to himself or herself or to someone
else;
(b) to prevent behaviour of the person likely to cause
serious harm to the person or to someone else;
(c) to prevent further physical or mental deterioration of
the person;
(d) to relieve acute symptomatology.
Amendment of section 46 (Form of interim community management
order)
(1) Section 46
omit
is to be the approved form and is to specify
–
substitute
must be in the approved form and must specify the
following:
(2) Section 46(e)
omit, substitute
(da) whether or not the treatment and care is to occur at
the person's residence;
(db) if the treatment and care is not to occur at the
person's residence – the place the person must attend to receive the
treatment or care;
(e) the frequency at which a person treating or caring for
the person must attend the person's residence or at which the person must attend
the place specified under paragraph (db);
(3) Section 46(g)
omit
order; and
substitute
order;
Repeal and substitution of section 47
Section 47
repeal, substitute
47. Notification
of interim community management order
(1) No
later than one day after making an interim community management order for a
person under section 45(1), an authorised psychiatric practitioner
must:
(a) notify the Tribunal that the order has been made;
and
(b) notify the following:
(i) the person;
(ii) the person's adult guardian;
(iii) a legal practitioner acting or prepared to act for the
person;
(iv) subject to subsection (2) – the person's primary
carer;
(v) the principal community visitor.
(2) The practitioner may decide not to notify the person's
primary carer if the practitioner is of the opinion that giving the notification
is not in the person's best interests.
(3) If the practitioner decides not to notify the primary
carer because of subsection (2), the practitioner must:
(a) give to the Tribunal a written report of the decision
and the reason for it in the approved form; and
(b) inform the primary carer of his or her right to apply to
the Tribunal for a review of the decision.
(4) A notification under subsection (1)(b) must
state:
(a) the grounds for the order; and
(b) the order has been made under section
45(1).
(5) The notification may be given orally or in writing but
must be in a language that can be understood by the receiver of the
notification.
(6) The practitioner must make a record of each of the
following in accordance with approved procedures:
(a) a notification under subsection (1);
(b) a decision under subsection (2) not to notify the
primary carer and the reasons for it.
Amendment of section 49 (Form of community management
order)
(1) Section 49
omit
is to be in writing and is to specify
–
substitute
must be in writing and must specify the
following:
omit, substitute
(da) whether or not the treatment and care is to occur at
the person's residence;
(db) if the treatment and care is not to occur at the
person's residence – the place the person must attend to receive the
treatment or care;
(e) the frequency at which a person treating or caring for
the person must attend the person's residence or at which the person must attend
the place specified under paragraph (db);
(3) Section 49(g)
omit
order; and
substitute
order;
Repeal and substitution of sections 50 and 51
Sections 50 and 51
repeal, substitute
50. Review
of community management order by authorised psychiatric
practitioner
(1) An authorised psychiatric practitioner
must:
(a) examine a person who is subject to a community
management order no less frequently than as specified in the order;
and
(b) regularly review the order while it is in
force.
(2) If it is not practicable for the practitioner to
conduct a face-to-face examination under subsection (1)(a), the practitioner may
conduct the examination:
(a) by interactive video conferencing; or
(b) if interactive video conferencing is not available
– by telephone.
(3) An authorised psychiatric practitioner must revoke the
order if satisfied, after examining the person, the person no longer fulfils the
criteria for involuntary treatment in the community.
(4) An authorised psychiatric practitioner may apply to the
Tribunal for a review of the order under section 123.
50A. Notification
of revocation of community management order
(1) No
later than one day after revoking a community management order for a person
under section 50(3), an authorised psychiatric practitioner
must:
(a) notify the Tribunal that the order has been revoked;
and
(b) notify the following:
(i) the person;
(ii) the person's adult guardian;
(iii) a legal practitioner acting or prepared to act for the
person;
(iv) subject to subsection (2) – the person's primary
carer;
(v) the principal community visitor.
(2) The practitioner may decide not to notify the person's
primary carer if the practitioner is of the opinion that giving the notification
is not in the person's best interests.
(3) If the practitioner decides not to notify the primary
carer because of subsection (2), the practitioner must:
(a) give to the Tribunal a written report of the decision
and the reason for it in the approved form; and
(b) inform the primary carer of his or her right to apply to
the Tribunal for a review of the decision.
(4) A notification under subsection (1)(b) must state the
order has been revoked under section 50(3).
(5) The notification may be given orally or in writing but
must be in a language that can be understood by the receiver of the
notification.
(6) The practitioner must make a record of each of the
following in accordance with approved procedures:
(a) a notification under subsection (1);
(b) a decision under subsection (2) not to notify the
primary carer and the reasons for it.
51. Appointment
of psychiatric case manager
(1) The authorised psychiatric practitioner who is
responsible under section 50(1)(b) for reviewing a community management order
must appoint a psychiatric case manager for the person for whom the order is
made.
(2) The person appointed must be:
(a) a medical practitioner or a designated mental health
practitioner who is:
(i) an employee of the approved treatment agency supervising
the order; or
(ii) if it is not practicable to appoint an employee of the
approved treatment agency – an employee of the Agency; or
(b) if it is not practicable to appoint a practitioner
mentioned in paragraph (a) – any other medical
practitioner.
(3) However, a practitioner must not be appointed to be a
psychiatric case manager under subsection (2)(a)(ii) or (b)
unless:
(a) the practitioner consents to the appointment;
and
(b) the appointment complies with approved
procedures.
(4) The psychiatric case manager must:
(a) monitor the progress of the treatment, care and
rehabilitation of the person for whom the order is made; and
(b) provide a report, orally or in writing, on the progress
of the person to the authorised psychiatric practitioner at least once every
6 weeks.
Amendment of section 52 (Discharge report and consideration
of report by Tribunal)
Section 52(1)
omit
The person-in-charge of an approved treatment
agency
substitute
An authorised psychiatric practitioner
Amendment of section 53 (Suspension of community management
order)
(1) Section 53(1) and (2)(a)
omit (all references)
authority
substitute
order
(2) Section 53(2)(b)
omit, substitute
(b) because of the person's failure to comply with the
order, the person is likely to:
(i) cause serious harm to himself or herself or to someone
else; or
(ii) suffer serious mental or physical
deterioration.
(3) Section 53(3) to (5)
omit, substitute
(3) The practitioner who suspends the community management
order under subsection (1) must take reasonable steps:
(a) to inform the following that the order has been
suspended and the reasons for the suspension:
(i) the person;
(ii) the person's adult guardian or representative;
and
(b) to conduct an assessment of the person.
(4) If it is not practicable for the practitioner to
conduct a face-to-face assessment under subsection (3)(b), the practitioner may
conduct the assessment:
(a) by interactive video conferencing; or
(b) if an assessment through interactive video conferencing
is not practicable – by telephone; or
(c) if an assessment through interactive video conferencing
or telephone is not practicable – on the basis of:
(i) information provided to the practitioner by the person's
psychiatric case manager; or
(ii) if the case manager is unable to provide relevant
information – any other relevant information.
(5) After conducting the assessment, the practitioner
may:
(a) admit the person to an approved treatment facility as an
involuntary patient; or
(b) treat the person and re-activate the community
management order.
(6) If the practitioner does not re-activate the community
management order within 24 hours after it was suspended, the practitioner
must give to the Tribunal a written report of the suspension and the reasons for
the suspension in the approved form.
(7) The community management order is taken to be
re-activated if the person is discharged from the approved treatment facility
after being admitted under subsection (5)(a), unless the Tribunal
has:
(a) varied the order under section 123(12);
or
(b) made a new community management order for the person
under section 123(5)(c).
(8) For an admission of a person under subsection (5)(a),
section 34(3) has effect as if a recommendation for psychiatric examination had
been made under section 34(1) for the person.
(9) In this section:
"re-activate", for the community management order, means to
bring the order back into force by revoking the suspension of the
order.
Amendment of section 54 (Treatment after voluntary
admission)
Section 54(5)
omit, substitute
(5) Treatment must not be administered to the person while
the decision of the Tribunal is pending except for treatment
necessary:
(a) to prevent the person causing serious harm to himself or
herself or to someone else; or
(b) to prevent behaviour of the person likely to cause
serious harm to the person or to someone else; or
(c) to prevent further physical or mental deterioration of
the person; or
(d) to relieve acute symptomatology.
Amendment of section 55 (Treatment after involuntary
admission)
Section 55(2)
omit, substitute
(2) Treatment not authorised by the Tribunal must not be
administered to the person except for treatment necessary:
(a) to prevent the person causing serious harm to himself or
herself or to someone else; or
(b) to prevent behaviour of the person likely to cause
serious harm to the person or to someone else; or
(c) to prevent further physical or mental deterioration of
the person; or
(d) to relieve acute symptomatology.
Amendment of section 61 (Mechanical means of bodily
restraint)
(1) Section 61, heading
omit, substitute
Mechanical restraint
(2) Section 61(2)
omit, substitute
(2) A person must not apply mechanical restraint to a
person other than:
(a) to a person who is being assessed, or receiving
treatment, under this Act; and
(b) in accordance with this section.
Maximum penalty: $5 000.
(3) Section 61(3)(c)
omit, substitute
(c) to prevent the person from persistently destroying
property;
(d) to prevent the person from absconding from the
facility.
(4) Section 61(6)
omit, substitute
(6) The form of mechanical restraint and its duration must
be:
(a) determined by the authorised psychiatric practitioner or
senior registered nurse who approves it; and
(b) if the mechanical restraint has been approved by the
senior registered nurse on duty – reviewed and, if necessary,
re-determined by an authorised psychiatric
practitioner as soon as practicable after it has been approved.
(5) Section 61(8)(c)
omit
subject to subsection (9),
(6) Section 61(8)(d) and (9)
omit
(7) Section 61(10)
omit
12 hours
substitute
a continuous period of 6 hours
(8) Section 61(12)(a) to (d), at the end
insert
and
(9) Section 61(12)(e)
omit
applied; and
substitute
applied.
(10) Section 61(12)(f)
omit
(11) After section 61(14)
(15) The
person-in-charge of the approved treatment facility must ensure that the adult
guardian of a person to whom mechanical restraint has been applied is notified
of the following as soon as practicable after the application of the
restraint:
(a) that mechanical restraint was applied to the
person;
(b) the form of mechanical restraint
applied;
(c) the reasons why mechanical restraint was
applied;
(d) the period of time the mechanical restraint was
applied.
Amendment of section 62 (Seclusion of
patients)
(1) Section 62(1)
omit
(2) Section 62(2)
omit, substitute
(2) A person must not keep someone in seclusion other than
someone who is being assessed, or receiving treatment, under this Act and only
in accordance with this section and approved procedures.
Maximum penalty: $5 000.
(3) Section 62(3), after "necessary for"
insert
one or more of
(4) Section 62(3)(c)
omit, substitute
(c) to prevent the person from persistently destroying
property;
(d) to prevent the person from absconding from the
facility.
(5) Section 62(6)
omit, substitute
(6) The period the person is to be kept in seclusion must
be:
(a) determined and noted in the person's case notes by the
authorised psychiatric practitioner or senior registered nurse who approves it;
and
(b) if the seclusion has been approved by the senior
registered nurse on duty:
(i) reviewed by an authorised psychiatric practitioner as
soon as practicable after it has been approved; and
(ii) if necessary, re-determined by the practitioner and
noted in the person's case notes.
(6) Section 62(8)(b)
omit
not longer than 4 hours
substitute
specified in approved procedures
(7) Section 62(8)(c)
omit
, if the person is kept in seclusion for more than 6
hours
substitute
in accordance with approved procedures
(8) Section 62(9)
omit
(9) Section 62(10)
omit
12 hours
substitute
a continuous period of 6 hours
(10) Section 62(12)(a) to (c), at the end
insert
and
(11) Section 62(12)(d)
omit
seclusion; and
substitute
seclusion.
(12) Section 62(12)(e)
omit
(13) After section 62(14)
insert
(15) The person-in-charge of the approved treatment
facility must ensure that the adult guardian of a person kept in seclusion is
notified of the following as soon as practicable after the
seclusion:
(a) that the person was kept in seclusion;
(b) the reasons why the person was kept in
seclusion;
(c) the length of time the person was kept in
seclusion.
(16) In this section:
"seclusion", of a person, means the confinement of the
person at any time of the day or night alone in a room or area from which free
exit is prevented.
Amendment of section 63 (Non-psychiatric
treatment)
Section 63(6)
omit
Public Guardian, within the meaning of the Adult
Guardianship Act,
substitute
adult guardian of the person on whom the treatment was
performed
Amendment of section 64 (Major medical
procedure)
Section 64(4)
omit, substitute
(4) No later than one day after authorising the performance
of a major medical procedure under subsection (3), the practitioner must
notify:
(a) the Tribunal; and
(b) the person's adult guardian.
Amendment of section 66 (Electro convulsive
therapy)
(1) Section 66(1)(b)
omit, substitute
(b) the person's adult guardian consents to the treatment;
or
(c) the treatment is performed in accordance with this
section and approved procedures.
(2) Section 66(2)(c)(i)
omit, substitute
(i) all reasonable efforts have been made to consult the
person's primary carer; or
Repeal and substitution of Parts 10 and 11
Parts 10 and 11
repeal, substitute
PART
10 – POWERS OF COURT
Division
1 – Assessment and admission of person
73A. Application
of Division
(1) This
Division applies to a person who:
(a) is charged with an offence in proceedings before a
court; and
(b) in the opinion of the court, may require treatment or
care under this Act.
(2) The court may:
(a) make one or more orders under this Division for the
person; or
(b) dismiss the charge at any time if:
(i) the court is exercising summary jurisdiction in the
proceedings; and
(ii) the proceedings are not proceedings for a committal or
preliminary hearing; and
(iii) the court is of the opinion that, if the person were
found guilty, under the Sentencing Act the court would dismiss the charge
unconditionally or otherwise decline to record a conviction.
(3) Subsection (4) applies
if:
(a) the offence is one to which section 121A(1)(b) of the
Justices Act applies; and
(b) the court is of the opinion that the person lacks the
capacity to consent to the charge being heard and determined
summarily.
(4) For section 121A(1)(d) of the Justices Act,
consent is taken to be have been given by the person if the person's legal
representative consents to the charge being heard and determined
summarily.
(5) For subsections (1)(b) and (3)(b), the court may have
regard to the following in forming its opinion:
(a) the appearance and behaviour of the person when brought
before the court;
(b) information given to the court during the
proceedings.
74. Pre-assessment
advice
(1) The court may request from the Chief Health Officer
advice regarding the availability of resources to assess the person in order to
determine whether the person is in need of treatment under this
Act.
(2) The court may adjourn the proceedings to allow the
preparation of the advice.
(3) As soon as practicable after receiving the request, the
Chief Health Officer must give the court written advice that
includes:
(a) whether or not it is practicable to conduct an
outpatient assessment of the person; and
(b) if an outpatient assessment is practicable – the
most appropriate place, time and conditions for the assessment;
and
(c) if an outpatient assessment is not
practicable:
(i) the approved treatment facility or approved temporary
treatment facility that is available for the assessment of the person;
and
(ii) an estimate of the time required for the
assessment.
(4) In this section:
"outpatient assessment" means an assessment that is not
carried out at an approved treatment facility or approved temporary treatment
facility.
74A. Assessment
order and report
(1) If the court receives written advice from the Chief
Health Officer under section 74(3)(b) that it is practicable to conduct an
outpatient assessment of the person as specified in the advice, the court
may:
(a) adjourn the proceedings; and
(b) order the person be so assessed by a practitioner and a
report of the assessment be prepared for the court.
(2) If the court receives written advice from the Chief
Health Officer under section 74(3)(c) that it is not practicable to conduct an
outpatient assessment of the person but an approved treatment facility or
approved temporary treatment facility is available for the assessment of the
person, the court may:
(a) adjourn the proceedings; and
(b) order the person be conveyed to and detained in the
facility for the assessment and a report of the assessment be prepared for the
court.
(3) For subsections (1)(a) and (2)(a), the period of
adjournment must not exceed the estimate of the time required for the assessment
that is specified in the advice.
(4) An order under subsection (2)(b) must specify who is
responsible for conveying the person from the court to the facility and back to
the court after the person has been assessed.
(5) The Registrar of the Local Court must send a copy of
the order to the person-in-charge of the facility:
(a) as soon as practicable after the order is made;
and
(b) before the person is conveyed to the
facility.
(6) A report of the assessment of the person prepared for
subsection (1)(b) or (2)(b) must state whether or not the practitioner
who assessed the person is satisfied the person fulfils the criteria for
involuntary admission.
(7) If the practitioner is satisfied the person fulfils the
criteria for involuntary admission, the report must state:
(a) whether the admission should be on the grounds of mental
illness or mental disturbance; and
(b) whether an approved treatment facility is available for
the admission; and
(c) the recommended duration of the admission;
and
(d) any recommendations for the conveyance of the person to
and from the facility and the security of the person while at the
facility.
(8) If the practitioner is not satisfied the person fulfils
the criteria for involuntary admission, the report must state:
(a) whether the person requires:
(i) involuntary treatment in the community;
or
(ii) other treatment under this Act; and
(b) if so – the form of the
treatment.
(9) In this section:
"outpatient assessment", see section 74(4);
"practitioner" means an authorised psychiatric practitioner,
medical practitioner or designated mental health practitioner.
(1) This section applies if, after receiving a report
prepared for section 74A, the court is satisfied:
(a) the person fulfils the criteria for involuntary
admission on the grounds of mental illness or mental disturbance; and
(b) resources are available at a specified approved
treatment facility to diagnose and treat the person.
(2) The court may:
(a) adjourn the proceedings for a period specified by the
court; and
(b) order the person be detained in the approved treatment
facility for:
(i) an examination and assessment of the person under
section 38(1); and
(ii) if the person is admitted to the facility –
diagnosis and treatment under this Act.
(3) For subsection (2), the period specified must not
exceed the shorter of the following:
(a) the duration of the admission recommended in the
report;
(b) 15 days.
(4) An order under subsection (2)(b) must specify who is
responsible for conveying the person from the court to the facility and, if
section 75B(2)(a) applies, returning the person to lawful
custody.
(5) The Registrar of the Local Court must:
(a) send a copy of the order to the person-in-charge of the
facility:
(i) as soon as practicable after the order is made;
and
(ii) before the person is conveyed to the facility;
and
(b) if the order is cancelled, varied or extended –
send notification that the order has been cancelled or a copy of the order as
varied or extended (as the case may be) to the person-in-charge of the facility
as soon as practicable after the order has been cancelled, varied or
extended.
(6) The court may impose conditions for the order under
subsection (2)(b).
(7) The conditions may include, but are not limited to, any
of the following:
(a) a condition requiring the person to be detained in a
particular part of the facility;
(b) a condition requiring the person to be kept under guard
at the facility;
(c) a condition for the granting to the person of leave of
absence from the facility;
(d) if the person is a prisoner – a condition
requiring the person to be subject to the restrictions that would apply if the
person were in a prison.
(8) The
court may grant the person bail to enable the person to be released from the
facility while the proceedings are adjourned if section 75B
applies.
(9) The prosecutor, Chief Health Officer or the person may
apply to the court at any time to cancel, vary or extend the
order.
75A. Determination
that person not required to be admitted
(1) If the person is admitted as an involuntary patient at
the approved treatment facility because of section 75, an authorised psychiatric
practitioner or the Tribunal may determine the person is no longer required to
be so admitted at the facility.
(2) The practitioner or Tribunal may do so only if
satisfied the person does not fulfil the criteria for involuntary admission on
the grounds of mental illness or mental disturbance, after:
(a) an examination of the person by the practitioner under
section 39(2); or
(b) the review of the person's admission by the Tribunal
under section 123.
(3) If
a determination is made under subsection (1), the Chief Health Officer must
inform the court that the determination has been made on the resumption of the
proceedings.
75B. Person
not required to be detained at approved treatment facility during
adjournment
(1) This section applies if the court has adjourned the
proceedings under section 75(2) and one of the following
applies:
(a) the person is not admitted to the approved treatment
facility as an involuntary patient following the examination and assessment of
the person under section 38(1);
(b) a determination is made under section 75A(1) for the
person.
(2) The person must, as soon as
practicable:
(a) if the person was in lawful custody when the order under
section 75(2) was made and the person is not granted bail under
section 75(8) – be returned to lawful custody; or
(b) otherwise – be released from the
facility.
(1) This section applies to a person who is required to be
detained at an approved treatment facility because of an order made under
section 74A(2)(b) or 75(2)(b).
(2) A court may issue a warrant to arrest the person if the
person:
(a) absconds from the approved treatment facility;
or
(b) fails to attend the facility under the
order.
Division
2 – Dismissal of charge following certificate from
Chief Health
Officer
(1) This section applies to a person if:
(a) the person is charged with an offence in proceedings
before a court (other than proceedings for a committal or preliminary hearing);
and
(b) the court is exercising summary jurisdiction in the
proceedings.
(2) The court may request from the Chief Health Officer a
certificate in the approved form stating:
(a) whether at the time of carrying out the conduct
constituting the alleged offence, the person was suffering from a mental illness
or mental disturbance; and
(b) if the person was suffering from a mental illness or
mental disturbance – whether the mental illness or disturbance is likely
to have materially contributed to the conduct.
(3) The Chief Health Officer must not give the court the
certificate unless the Chief Health Officer has received and considered advice
on the person from an authorised psychiatric practitioner or designated mental
health practitioner.
(4) After
receiving the certificate, the court must dismiss the charge if satisfied that
at the time of carrying out the conduct constituting the alleged
offence:
(a) the person was suffering from a mental illness or mental
disturbance; and
(b) as a consequence of the mental illness or disturbance,
the person:
(i) did not know the nature and quality of the conduct;
or
(ii) did not know the conduct was wrong; or
(iii) was not able to control his or her
actions.
Division
3 – Voluntary treatment plan
78. Request
for voluntary treatment plan
(1) This Division applies to a person if:
(a) in proceedings before a court (other than proceedings
for a committal or preliminary hearing) the person:
(i) has pleaded guilty to an offence; or
(ii) has been found guilty of an offence;
and
(b) the court is exercising summary jurisdiction in the
proceedings.
(2) The court may request from the Chief Health Officer an
assessment of, and if appropriate a voluntary treatment plan for, the person
if:
(a) the court is of the opinion the person suffers from a
mental illness or mental disturbance that is likely to have contributed to the
conduct constituting the offence; and
(b) the court is satisfied the person:
(i) recognises that he or she suffers from a mental illness
or mental disturbance; and
(ii) has made, or is willing to make, a conscientious effort
to address problems associated with the mental illness or mental disturbance;
and
(c) the court considers it appropriate for the offence to be
dealt with under this Division having regard to the nature and seriousness of
the offence; and
(d) the prosecution and the person consent to the offence
being dealt with under this Division.
(3) To enable the assessment of the person and, if
required, the preparation of the voluntary treatment plan, the court
may:
(a) adjourn the proceedings; and
(b) grant bail to the person on the condition that the
person undergoes the assessment.
78A. Voluntary
treatment plan
(1) A report of the assessment of the person prepared for
section 78 must state:
(a) whether or not, having regard to subsection (2) or
any other matter, it is appropriate to treat the person under a voluntary
treatment plan; and
(b) if so – the nature and duration of the treatment
plan.
(2) A person must not be treated under a voluntary
treatment plan if by doing so, the person would pose a serious risk to himself
or herself or someone else.
(3) If it is appropriate to treat the person under a
voluntary treatment plan, the court may:
(a) adjourn the proceedings for a period not exceeding 6
months; and
(b) grant bail to the person on the condition that the
person enters into an agreement to participate in the treatment
plan.
(4) If it is not appropriate to treat the person under a
voluntary treatment plan, the court must deal with the person under the
Sentencing Act.
78B. Review
of voluntary treatment plan
(1) If the proceedings have been adjourned under section
78A(3), the court must review the person's participation in the voluntary
treatment plan on the resumption of the proceedings.
(2) If the person has not completed the treatment plan, the
court may:
(a) adjourn the proceedings for a further period, not
exceeding 6 months and grant bail to the person on the condition that the
person enter into an agreement to complete the treatment plan;
or
(b) deal with the person under the Sentencing
Act.
(3) If the person has completed the treatment plan, the
court may:
(a) dismiss the charge; or
(b) deal with the person under the Sentencing
Act.
(4) If the treatment plan has been extended under
subsection (2)(a), at the expiry of the further period the court
may:
(a) if the person has not completed the treatment plan
– deal with the person under the Sentencing Act;
or
(b) if the person has completed the treatment
plan:
(i) dismiss the charge; or
(ii) deal with the person under the Sentencing
Act.
78C. Failure
to comply with condition
(1) This section applies if a practitioner who is involved
in the assessment or treatment of the person believes on reasonable grounds that
the person:
(a) has failed to attend the assessment mentioned in section
78(3)(b); or
(b) has failed to comply with a voluntary treatment
plan.
(2) The practitioner must report the failure to the court
in accordance with approved procedures.
(3) On receipt of a report given under subsection (2), the
court may:
(a) issue a warrant for the arrest of the person;
and
(b) if satisfied that the person has failed to comply with a
condition of bail – deal with the person under the Sentencing
Act.
78D. Orders
under Part 4 of Sentencing
Act
The court must not make an order for the person under Part
4 of the Sentencing Act while the person is released on bail for the
purpose of:
(a) undergoing an assessment mentioned in section 78(3)(b);
or
(b) participating in, or completing, a voluntary treatment
plan.
(1) To avoid doubt, the granting of bail to the person
under this Division does not affect the application of the Bail Act to
the grant of bail.
(2) The granting of bail to the person on the condition
that the person undergo assessment and treatment under this Division does not
constitute an inducement for section 7(2)(a).
Division
1 – Referral, assessment and admission
79. Assessment
of prisoner
(1) A designated mental health practitioner or authorised
psychiatric practitioner may examine and assess a prisoner to determine if
section 45, 80A or 81 applies to the prisoner.
(2) If requested to do so by a visiting medical officer,
the Director of Correctional Services must arrange for a prisoner to be examined
and assessed by a practitioner under subsection (1) within 24 hours after
receiving the request.
(3) However, the practitioner may refuse to examine or
assess the prisoner if the practitioner is otherwise satisfied none of the
provisions mentioned in subsection (1) applies to the prisoner.
(4) The examination and assessment under subsection (1) may
take place:
(a) at the prison where the prisoner is held; or
(b) with the approval of the Director of Correctional
Services after consulting with the person-in-charge of the facility – at
an approved treatment facility.
(5) In this section:
"visiting medical officer", see section 5 of the Prisons
(Correctional Services) Act.
80. Recommendation
for voluntary admission
(1) This section applies if, following an examination and
assessment of a prisoner under section 79(1), a designated mental health
practitioner is satisfied the prisoner:
(a) is likely to benefit from being admitted as a voluntary
patient; and
(b) has given informed consent to the
admission.
(2) The practitioner may recommend the admission of the
prisoner as a voluntary patient and arrange for the prisoner to be examined by
an authorised psychiatric practitioner:
(a) at the prison; or
(b) if an examination at the prison would result in an
unreasonable delay – at an approved treatment facility.
(3) An authorised psychiatric practitioner must examine the
prisoner not later than 24 hours after a recommendation for the prisoner's
admission is made under subsection (2).
(4) The Director of Correctional Services must permit the
transfer of the prisoner to an approved treatment facility for an examination
under subsection (2)(b).
80A. Voluntary
admission of prisoner
(1) This section applies if, following an examination and
assessment of a prisoner under section 79(1) or an examination under section
80(3), an authorised psychiatric practitioner is satisfied:
(a) the prisoner is likely to benefit from being admitted as
a voluntary patient; and
(b) either:
(i) the prisoner has given informed consent to the
admission; or
(ii) a guardian of the prisoner who has power under the
Adult Guardianship Act to consent to any health care that is in the best
interest of the prisoner has consented to the admission and the prisoner is
willing to be admitted.
(2) If the examination and assessment was conducted at an
approved treatment facility, the practitioner may admit the prisoner to the
facility as a voluntary patient.
(3) If the examination and assessment was conducted at the
prison, the practitioner may arrange for the prisoner to be transferred to an
approved treatment facility and admitted to the facility as a voluntary
patient.
(4) An authorised psychiatric practitioner, other than the
practitioner who admitted the prisoner, must examine the prisoner not later than
24 hours after the prisoner is admitted under subsection (2) or
(3).
(5) Part 5 applies to the prisoner as if the examination
under subsection (4) were an examination under section
25(4).
(6) The Director of Correctional Services must permit the
transfer of the prisoner to an approved treatment facility for the admission of
the prisoner as a voluntary patient under this section.
81. Involuntary
admission of prisoner
(1) This section applies if the practitioner who carried
out the examination and assessment under section 79(1) or 80(3) is satisfied the
prisoner fulfils the criteria for involuntary admission on the grounds of mental
illness or mental disturbance.
(2) The practitioner must make a recommendation for the
psychiatric examination of the prisoner.
(3) Part 6 applies to the prisoner as if the recommendation
were a recommendation under section 34(1).
(4) If the prisoner is not already at an approved treatment
facility, the Director of Correctional Services must permit the transfer of the
prisoner to an approved treatment facility for the following:
(a) an examination and assessment of the prisoner under
section 38(1);
(b) the admission of the prisoner as an involuntary
patient.
82. Person-in-charge
to notify Director of Correctional Services
(1) The person-in-charge of the
approved treatment facility to which a prisoner has been admitted as a voluntary
patient must notify the Director of Correctional Services as soon as practicable
after:
(a) the prisoner requests to be returned to the prison;
or
(b) the prisoner no longer consents to his or her admission
or treatment; or
(c) an authorised psychiatric practitioner determines the
prisoner meets the criteria for admission as an involuntary patient;
or
(d) an authorised psychiatric practitioner determines the
prisoner will no longer benefit from continuing to be admitted as a voluntary
patient; or
(e) the Tribunal, after reviewing the prisoner's admission,
determines:
(i) the prisoner will no longer benefit from continuing to
be admitted as a voluntary patient; or
(ii) the prisoner meets the criteria for admission as an
involuntary patient.
(2) The person-in-charge of the approved treatment facility
to which a prisoner has been admitted as an involuntary patient must notify the
Director of Correctional Services as soon as practicable after:
(a) a decision has been made to discharge the prisoner from
the facility; or
(b) the prisoner is transferred to another facility under
section 167.
Division
2 – Leave of absence and apprehension of prisoner
(1) An authorised psychiatric practitioner may grant a
prisoner admitted to an approved treatment facility leave of absence from the
facility to receive medical or psychological assessment or
treatment.
(2) The leave:
(a) must not be granted except in accordance with
arrangements made under section 86; and
(b) must be recorded in the approved form;
and
(c) is subject to the conditions determined by the
practitioner.
(3) An authorised psychiatric practitioner may cancel the
leave if satisfied, on reasonable grounds:
(a) the prisoner is likely to suffer from serious mental or
physical deterioration as a result of a change in the prisoner's mental state;
or
(b) the prisoner is likely to cause harm to himself or
herself or to someone else; or
(c) the prisoner has failed to comply with a condition of
the leave.
(4) The practitioner who cancels the leave must take all
reasonable steps to inform the prisoner or the prisoner's representative that
the leave has been cancelled.
83A. Apprehension
of prisoner
(1) This section applies to a prisoner admitted to an
approved treatment facility under this Part if:
(a) the prisoner is absent from the facility without leave
granted under section 83(1); or
(b) the prisoner has been granted leave under section 83(1)
and any of the following occurs:
(i) the prisoner fails to return to the facility by the end
of the leave;
(ii) the leave is cancelled;
(iii) the prisoner fails to comply with a condition of the
leave.
(2) A police officer, a prison officer or a person
authorised by an authorised psychiatric practitioner may:
(a) apprehend the prisoner; and
(b) return the prisoner to the facility.
(3) Reasonable force and assistance may be used for
subsection (2).
(4) For subsection (2)(a), a police officer may enter
private premises or any other private place where the police officer reasonably
believes the prisoner may be found.
Division
3 – General Matters
84. Prisoner
to remain in lawful custody
(1) A prisoner admitted to an approved treatment facility
as a voluntary patient or involuntary patient is taken to be in lawful custody
while the prisoner remains in the facility.
(2) The period spent in the facility is taken to be a
period of imprisonment under the sentence imposed on the
prisoner.
85. Discharge
of prisoners
(1) A prisoner must not be detained in an approved
treatment facility after the prisoner's sentence of imprisonment expires unless
the prisoner is otherwise detained in the facility under this
Act.
(2) A prisoner who is in an approved treatment facility as
a voluntary patient or involuntary patient must not be discharged from the
facility before the prisoner's sentence of imprisonment expires unless it is for
the purpose of returning the prisoner to prison.
The Director of Correctional Services and the Chief Health
Officer may make arrangements to ensure the security and good order of prisoners
receiving treatment under this Act.
Amendment of section 87 (Information to be provided to
patients)
(1) Section 87, heading
omit
provided
substitute
given
(2) Section 87(1)
omit, substitute
(1) This section applies if:
(a) a person is admitted to an approved treatment facility;
or
(b) a community management order is made for a
person.
(1A) No later than one day after the person is admitted or
the order is made, an authorised psychiatric practitioner must give the
information specified in subsection (1B) to:
(a) the person; and
(b) the person's adult guardian; and
(c) the person's representative.
(1B) For subsection (1A), the following information is
specified:
(a) the person's rights and entitlements under this
Act;
(b) how those rights and entitlements may be
exercised;
(c) the advocacy and legal services that are available to
the person;
(d) any other information relating to the person's admission
and treatment as the CEO considers relevant.
Repeal and substitution of sections 88 and 89
Sections 88 and 89
repeal, substitute
88. Information
concerning medication or treatment
(1) This
section applies if:
(a) a person is admitted to an approved treatment facility;
or
(b) a community management order is made for a
person.
(2) An authorised psychiatric practitioner must ensure
information concerning the treatment (including medication) administered to the
person is given to the following:
(a) the person;
(b) the person's adult guardian;
(c) subject to subsection (3):
(i) the person's representative; and
(ii) the person's primary carer.
(3) The practitioner may decide not to allow the giving of
the information to the person's representative or primary carer if the
practitioner is of the opinion that giving the information is not in the
person's best interests.
(4) If the practitioner decides not to allow the giving of
the information to the representative or primary carer because of subsection
(3), the practitioner must:
(a) give to the Tribunal a written report of the decision
and the reason for it in the approved form; and
(b) inform the representative or primary carer of his or her
right to apply to the Tribunal for a review of the decision;
and
(c) make a record of the decision in accordance with
approved procedures.
(5) The information:
(a) may be given by the authorised psychiatric practitioner,
a medical practitioner or the senior nurse on duty at the facility; and
(b) must include details of the type, dosage, expected
benefits and side effects of the treatment.
(6) A person who gives information under this section must
make a record of the giving of the information in accordance with approved
procedures.
(1) The person-in-charge of an approved treatment facility
must ensure a discharge plan is prepared by an authorised psychiatric
practitioner before the person is discharged from the facility.
(2) The discharge plan:
(a) must contain arrangements for the accommodation,
psychosocial
well-being and ongoing psychiatric
treatment of the person; and
(b) must be capable of being implemented.
(3) The authorised psychiatric practitioner
must:
(a) ensure the persons specified in subsection (4) are
consulted in relation to the arrangements mentioned in subsection (2)(a) when
preparing the plan; and
(b) after the plan is prepared – inform the persons
specified in subsection (4) of the details of the plan.
(4) For subsection (3), the following are
specified:
(a) the person;
(b) the person's adult guardian;
(c) subject to subsection (5):
(i) the person's representative; and
(ii) the person's primary carer.
(5) The practitioner may decide not to allow consultation
with, or the giving of information to, the person's representative or primary
carer if the practitioner is of the opinion that the consultation or giving of
the information is not in the person's best interests.
(6) If the practitioner decides not to allow consultation
with, or the giving of information to, the representative or primary carer
because of subsection (5), the practitioner must:
(a) give to the Tribunal a written report of the decision
and the reason for it in the approved form; and
(b) inform the representative or primary carer of his or her
right to apply to the Tribunal for a review of the decision;
and
(c) make a record of the decision in accordance with
approved procedures.
(7) The consultation may be conducted by any of the
following:
(a) the authorised psychiatric
practitioner;
(b) a medical practitioner;
(c) the senior nurse on duty at the
facility;
(d) the person's primary nurse;
(e) the person's psychiatric case manager;
(f) a staff member of the facility responsible for discharge
planning.
(8) The authorised psychiatric practitioner must make a
record of information given by the practitioner under this section in accordance
with approved procedures.
(9) A person who conducts a consultation under this section
must make a record of the consultation in accordance with approved
procedures.
Amendment of section 90 (Information on
discharge)
Section 90(1)(b)
omit
care provider
substitute
carer
Amendment of section 91 (Disclosure of
information)
(1) Section 91(2)(b) and (c)
omit, substitute
(b) with the consent of:
(i) the person to whom the information relates;
or
(ii) the person's adult guardian; or
(iii) if the person has died – the person's nominated
next of kin, senior next of kin or the executor or administrator of the person's
estate; or
(c) if it is required in the course of criminal
investigations or criminal proceedings; or
(2) Section 91(2)(e) and (f)
omit, substitute
(e) to the representative or primary carer of the person to
whom the information relates if the disclosure:
(i) is relevant to the ongoing care, treatment or
rehabilitation of the person; and
(ii) is considered to be in the person's best interests;
or
(f) to a police officer if:
(i) the person to whom the information relates is in a
situation requiring immediate intervention; and
(ii) the person:
(A) is likely to cause serious harm to himself or herself or
to someone else; or
(B) represents a substantial danger to the general
community; and
(iii) the information is relevant to the safe resolution of
the situation; or
(3) After section 91(2)(g)
insert
(ga) to a police officer for section 166B(2);
or
(4) Section 91(2)(a), (d), (g) and (h) to (k), at the
end
insert
or
(5) Section 91(2)(m) and (3)
omit
Secretary
substitute
CEO
Repeal and substitution of section 92
Section 92
repeal, substitute
(1) Each of the following may apply for access to
information contained in records about a person that are kept by an approved
treatment facility or approved treatment agency:
(a) the person;
(b) the person's adult guardian;
(c) if the person has died:
(i) the person's nominated next of kin; or
(ii) the person's senior next of kin; or
(iii) the executor or administrator of the person's
estate.
(2) The application must be made in writing to an
authorised psychiatric practitioner employed at the facility or
agency.
(3) The practitioner may give the applicant access to the
information:
(a) without conditions; or
(b) on the condition that the practitioner, or someone who
is able to interpret the information, is present during the
access.
(4) The practitioner may refuse the application if the
practitioner believes, on reasonable grounds, if the person is given access to
the information:
(a) the person's health is likely to deteriorate;
or
(b) the person may become a danger to himself or herself or
to someone else; or
(c) someone mentioned in the information may be adversely
affected or endangered.
(5) If the practitioner refuses the application because of
subsection (4), the practitioner must as soon as possible:
(a) notify the following in writing of the
decision:
(i) the applicant;
(ii) if the information relates to the applicant and the
applicant has a representative – the representative; and
(b) inform the applicant of the applicant's right to apply
to the Tribunal for a review of the decision.
(6) If the applicant is not given access to the information
or notified under subsection (5)(a) within 30 days after making the application,
the practitioner is taken to have refused access to the
information.
Amendment of section 93 (Disclosure to
representative)
(1) Section 93, heading, before
"representative"
insert
adult guardian or
(2) Section 93(1)
omit
section 92(3) may permit a representative
substitute
section 92(4) may permit an adult guardian or
representative
(3) Section 93(2)
omit, substitute
(2) As a condition for the access, the practitioner may
require the adult guardian or representative to give an undertaking not to
disclose specified information.
Amendment of section 94 (Inclusion of written comments into
records)
Section 94
omit
his or her
substitute
the person's adult guardian or
Amendment of section 98 (Restriction or denial of
entitlement)
Section 98(5)(a) and (b)
omit, substitute
(a) notify the following of the order being
made:
(i) the Tribunal;
(ii) the person's adult guardian; and
(b) inform the person of the person's right to apply to the
Tribunal for a review of the order.
Amendment of section 99 (Withholding of certain
correspondence)
(1) Section 99(2)
omit
are –
substitute
are the following:
(2) Section 99(2)(b)
omit
Secretary
substitute
CEO
(3) Section 99(2)(j)
omit, substitute
(ha) the person's adult guardian;
(j) the Anti-Discrimination Commissioner;
Amendment of section 100 (Internal complaints
procedures)
(1) Section 100(5)
omit
all the words after "regularly"
substitute
given to each of the following:
(a) a person being treated at the approved treatment
facility or by the approved treatment agency;
(b) the person's adult guardian;
(c) the person's representative;
(d) the person's primary carer.
(2) Section 100(9), (10) and (11)
omit
Secretary
substitute
CEO
Amendment of section 101 (Principal community
visitor)
After section 101(2)
insert
(3) The principal community visitor must have the
qualifications determined by the Minister.
New section 101A
After section 101
insert
101A. Resignation
and termination of appointment – principal community
visitor
(1) A person appointed to be the principal community
visitor may resign by written notice given to the Minister.
(2) The Minister may terminate the appointment of the
principal community visitor for inability, inefficiency, misbehaviour or
physical or mental incapacity.
(3) The Minister must terminate the appointment of the
principal community visitor if the person appointed:
(a) ceases to hold a qualification that was a prerequisite
for the appointment; or
(b) becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for their
benefit.
Repeal and substitution of section 103
Section 103
repeal, substitute
(1) The Minister may appoint a person to be a community
visitor.
(2) A community visitor holds office for 3 years and is
eligible for
re-appointment.
(3) A community visitor must have the qualifications
determined by the Minister.
103A. Resignation
and termination of appointment – community visitor
(1) A person appointed to be a community visitor may resign
by written notice given to the Minister.
(2) The Minister may terminate the appointment of a
community visitor for inability, inefficiency, misbehaviour or physical or
mental incapacity.
(3) The Minister must terminate the appointment of a
community visitor if the person appointed:
(a) ceases to hold a qualification that was a prerequisite
for the appointment; or
(b) becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for their
benefit.
103B. Interim
appointment of community visitor
(1) The principal community visitor may make an interim
appointment of a person as a community visitor for a period of 60
days.
(2) The appointment ceases at the earliest of the
following:
(a) when the period of 60 days ends;
(b) when the appointment is terminated under subsection
(3);
(c) when the person is appointed to be a community visitor
under section 103(1).
(3) The principal community visitor may terminate the
appointment before the period of 60 days ends.
Amendment of section 108 (Requests to see community
visitors)
Section 108(4)
omit
visits the person not later than 48 hours
substitute
contacts (including by telephone or email), or attempts to
contact, the person before the end of the next working day
Amendment of section 110 (Community visitors
panels)
(1) Section 110(1)
omit
and each approved treatment agency
(2) Section 110(2) and (3)
omit
principal community visitor
substitute
Minister
(3) Section 110(3)
omit
organisations that represent
(4) After section 110(5)
insert
(6) A member of a community visitors panel holds office for
3 years and is eligible for re-appointment.
New sections 110A and 110B
After section 110
insert
110A. Resignation
and termination of appointment – member of community visitors
panel
(1) A person appointed to be a member of a community
visitors panel may resign by written notice given to the
Minister.
(2) The Minister may terminate the appointment of a member
of a community visitors panel for inability, inefficiency, misbehaviour or
physical or mental incapacity.
(3) The Minister must terminate the appointment of a member
of a community visitors panel if the person appointed:
(a) ceases to hold a qualification that was a prerequisite
for the appointment; or
(b) becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for their
benefit.
110B. Interim
appointment of member of community visitors panel
(1) The principal community visitor may make an interim
appointment of a person as a member of a community visitors panel for a period
of 60 days.
(2) The appointment ceases at the earliest of the
following:
(a) when
the period of 60 days ends;
(b) when the appointment is terminated under subsection
(3);
(c) when the person is appointed to be a member of a
community visitors panel under section 110(2).
(3) The principal community visitor may terminate the
appointment before the period of 60 days ends.
Amendment of section 111 (Duties of community visitors
panels)
(1) Section 111(1)
omit
an approved treatment facility or the premises occupied by
an approved treatment agency
substitute
the approved treatment facility
(2) Section 111(2)
omit
an approved treatment facility or premises occupied by an
approved treatment agency
substitute
the facility
(3) Section 111(2)(a) and (b)
omit
or from the agency
(4) Section 111(2)(c)
omit
or by the agency
(5) Section 111(2)(d)
omit
or from the agency
(6) Section 111(2)(e) to (g)
omit
or agency
(7) Section 111(2)(a) to (g), at the end
insert
and
(8) Section 111(3)
omit
facility or premises occupied by an approved treatment
agency –
substitute
facility:
(9) Section 111(3)(a)
omit
or the premises
(10) Section 111(3)(b) to (e)
omit
or by the agency
(11) Section 111(3)(a) to (c), at the end
insert
and
Amendment of section 112 (Reports by community visitors
panels)
(1) Section 112(1)
omit
or the premises occupied by an approved treatment
agency
(2) Section 112(3) and (5)
omit
or approved treatment agency
(3) Section 112(5)
omit
Secretary
substitute
CEO
New section 112A
After section 112, in Part 14, Division 3
insert
112A. Special
community visitors panels
(1) The principal community visitor may establish a special
community visitors panel to investigate and report on the overall operation of
an approved treatment agency.
(2) The members of the panel may visit places and make
inquiries they believe are necessary to conduct the
investigation.
(3) The Chairperson of the panel must give the principal
community visitor a report of the panel's investigation within the time
specified by the principal community visitor.
(4) The report must be in writing and
include:
(a) details of the actions and inquiries taken by the panel;
and
(b) the findings of the panel; and
(c) the recommendations of the panel.
(5) The principal community visitor must:
(a) give a copy of the report to the person-in-charge of the
approved treatment agency that is the subject of the investigation;
and
(b) invite the person-in-charge to make any comments in
response to the report within 28 days of receiving the report.
(6) The principal community visitor may forward the report
to the CEO if the principal community visitor believes the person-in-charge of
the agency has not taken action to address, or provided reasonable responses to,
matters raised in the report.
(7) The principal community visitor may re-establish the
panel if the principal community visitor believes further investigation of the
agency is required.
(8) Division 4 and section 110(2) to (5) apply to a special
community visitors panel as if it were a community visitors
panel.
Repeal and substitution of section 113
Section 113
repeal, substitute
113. Assistance
to be provided
(1) The person-in-charge and each employee of an approved
treatment facility must give reasonable assistance and cooperation
to:
(a) a community visitor; and
(b) a member of the community visitors panel established for
the facility.
(2) The person-in-charge and each employee of an approved
treatment agency must give reasonable assistance and cooperation
to:
(a) a community visitor; and
(b) a member of a special community visitors panel
established to investigate the agency.
(3) In this section, a reference to reasonable assistance
and cooperation to be given to a person is a reference to assistance and
cooperation required to enable the person to perform the person's functions
under this Act, and includes answering questions and responding to
enquiries.
Repeal and substitution of section 116
Section 116
repeal, substitute
116. Detection
of offences
(1) This section applies if a community visitor or member
of a community visitors panel reasonably believes, in the course of an
investigation or inspection under this Act, a person might have committed an
offence against this Act or another Act.
(2) The community visitor or member must:
(a) report the circumstances of the alleged offence to the
principal community visitor; and
(b) take reasonable steps to preserve the evidence relating
to the alleged offence; and
(c) not undertake any further investigation of the
circumstances of the alleged offence.
(3) If, after receiving the report, the principal community
visitor considers the person might have committed an offence against this Act or
another Act, the principal community visitor must:
(a) inform the CEO of the circumstances of the alleged
offence; and
(b) inform the Chief Executive Officer of another agency as
the principal community visitor considers appropriate.
Amendment of section 117 (Confidentiality)
(1) Section 117(1)
omit, substitute
(1) A person who is or has been any of the following must
not, either directly or indirectly, make a record of, or divulge or communicate
to any person, or make use of, information obtained by the person under this
Act:
(a) the principal community visitor;
(b) a community visitor;
(c) a member of a community visitors panel;
(d) an employee of the Agency.
Maximum penalty: $5 000.
(2) Section 117(2)
omit
Subsection (1)
substitute
However, subsection (1)
Amendment of section 118 (Mental Health Review
Tribunal)
(1) Section 118(3)
omit, substitute
(3) For subsection (2), one or more of each of the
following persons must be appointed:
(a) a person who is:
(i) a magistrate; or
(ii) a person appointed to be a Judicial Registrar under
section 9(1) of the Local Court Act; or
(iii) a lawyer with at least 5 years' experience as a legal
practitioner;
(b) a medical practitioner;
(c) a person who has a special interest or expertise in
mental illness or mental disturbance.
(2) Section 118(5)
omit
A person cannot be appointed to the Tribunal if he or she is
–
substitute
The following persons cannot be appointed to the
Tribunal:
(3) After section 118(5)(c)
insert
(ca) a member of a community visitors
panel;
(cb) a member of a special community visitors
panel;
(4) Section 118(5)(g)
omit
Secretary
substitute
CEO
(5) Section 118(5)(h)
omit
agency; or
substitute
agency;
Amendment of section 120 (Constitution of
Tribunal)
(1) Section 120, heading
omit
Constitution
substitute
Composition
(2) After section 120(3)
insert
(4) Despite subsection (1), if the President is satisfied
exceptional circumstances exist, the President may nominate 2 members of the
Tribunal to exercise the powers and perform the functions of the
Tribunal.
(5) One of the persons nominated under subsection (4), must
be the President or a member appointed under section 118(3)(a).
Amendment of section 121 (Registrar of
Tribunal)
Section 121(1)(a) and (b)
omit
an employee, within the meaning of the Public Sector
Employment and Management Act,
substitute
a public sector employee
Amendment of Part 15, Division 2 heading
Part 15, Division 2, heading
omit
, Appeals
Amendment of section 122 (Review of long term voluntary
admissions)
(1) Section 122(2)(a)
omit
, it may
substitute
– may
(2) After section 122(2)(a)
insert
(aa) that the person is someone in respect of whom an adult
guardianship order is in force, is willing to be admitted and does not fulfil
the criteria for admission as an involuntary patient – may confirm the
admission of the person as a voluntary patient; or
(3) Section 122(2)(a) and (b), at the end
insert
or
(4) Section 122(2)(b) to (d)
omit
, it may
substitute
– may
(5) After section 122(4)
insert
(5) An order under subsection (2)(b) ceases to have effect
if the person for whom the order is made is discharged from the approved
treatment facility under section 40(3).
Amendment of section 123 (Review of involuntary admissions
and community management orders)
(1) Section 123(1)
omit, substitute
(1) The Tribunal must review the admission of a person as
an involuntary patient not later than 14 days after the
admission.
(2) Section 123(2)
omit
7
substitute
14
(3) Section 123(4)
omit, substitute
(4) The Tribunal may review the admission of a person as an
involuntary patient or an order made under this Act (other than under
Part 10 or 16) for a person on being requested to do so
by:
(a) the person; or
(b) someone who has a genuine interest in, or with a real
and immediate concern for the health or welfare of, the person.
(4) After section 123(6)
insert
(6A) An order under subsection (5)(a) ceases to have effect
if the person for whom the order is made is discharged from the approved
treatment facility under section 40(3).
(5) Section 123(7)
omit
order admitting
substitute
admission of
(6) Section 123(8)
omit
an order admitting
substitute
the admission of
Repeal of section 124
Section 124
repeal
Amendment of section 127 (Appeals)
(1) Section 127, heading
omit, substitute
Application for review
(2) Section 127(1) to (3)
omit, substitute
(1) An application may be made to the Tribunal for a review
of:
(a) a decision of a medical practitioner under
section 25(8) to refuse to admit a person as a voluntary patient;
or
(b) a decision of an authorised psychiatric practitioner
under:
(i) section 25(8) to refuse to confirm the admission of
a person as a voluntary patient; or
(ii) section 27(2) to refuse to admit a person as a
voluntary patient; or
(iii) section 39(3)(a) to detain a person at an
approved treatment facility for a further period of up to 14 days;
or
(iv) section 42(2) to detain a person at an approved
treatment facility for a further period of up to 14 days; or
(v) section 47(2) not to notify a person's primary
carer that an interim community management order has been made for the person;
or
(vi) section 88(3) not to allow the giving of
information concerning treatment of a person to the person's representative or
primary carer; or
(vii) section 89(5) not to allow consultation with, or
the giving of information concerning the details of a discharge plan to, a
person's representative or primary carer; or
(viii) section 92(4) to refuse an application for
access to information in a person's records kept by an approved treatment
facility or approved treatment agency; or
(c) an order of an authorised psychiatric practitioner under
section 98(1) restricting or denying a person's right.
(2) An application may be made to the Tribunal for a review
of the decision of the person-in-charge of an approved treatment facility under
section 167(1) to transfer a person to another facility.
(3) An application under subsection (1) may be
made:
(a) by the person who is the subject of the decision or
order; or
(b) on the person's behalf, by any of the
following:
(i) the person's adult guardian;
(ii) the person's representative;
(iii) a legal practitioner;
(iv) a person with a genuine interest in, or with a real and
immediate concern for the health or welfare of, the person.
(4) Section 127(5)
omit
an appeal under subsection (1)
substitute
a review in relation to an application made under
subsection (1)
(5) Section 127(5)(b) and (c), before "authorised
psychiatric practitioner"
insert
medical practitioner or
(6) Section 127(6)
omit
an appeal made under subsection (2)
substitute
a review in relation to an application made under
subsection (2)
(7) Section 127(7)
omit
he or she was transferred where
substitute
the person was transferred if
Repeal and substitution of section 128
Section 128
repeal, substitute
128. Limitation
of further reviews
Subject to this Division, after conducting a review, the
Tribunal may order that an application for another review for the same matter
may not be made before a date determined by the Tribunal.
Amendment of section 129 (Hearings)
(1) Section 129(1) and (2)
omit, substitute
(1) The Tribunal may undertake a review by conducting a
hearing.
(2) The hearing must be conducted in the manner decided by
the Tribunal.
(2A) The Tribunal may issue practice directions, not
inconsistent with this Act, for regulating its practices and
procedures.
(2) After section 129(5)
insert
(5A) An order that is in force at the adjournment of a
hearing remains in force during the adjournment despite any earlier date that
was fixed for its expiry.
Repeal and substitution of section 131
Section 131
repeal, substitute
131. Right
of appearance and representation
(1) A person who is the subject of a
review:
(a) may represent himself or herself; or
(b) may be represented by a legal practitioner or other
person.
(2) The Tribunal must appoint a legal practitioner to
represent a person who is unrepresented at a review if the Tribunal thinks the
representation is necessary.
(3) Subsection (2) has effect despite any objections of the
person.
(4) If the Tribunal appoints a legal practitioner under
subsection (2), the Tribunal may order the Territory to pay all or part of the
reasonable costs and disbursements of the legal practitioner in representing the
person at the review.
(5) The Tribunal may conduct the review in the absence of
the person or the person's representative if all of the following
apply:
(a) reasonable notice of the review was given to the person
or representative;
(b) the person or representative had a reasonable
opportunity to attend the review;
(c) the person or representative refuses to attend the
review.
(6) The Tribunal may conduct the review in the absence of
the person if:
(a) in the opinion of the Tribunal, there are exceptional
circumstances that make the attendance of the person inappropriate;
and
(b) the person's representative is given notice of the
review and has a reasonable opportunity to attend the review.
(7) The Tribunal must notify a person who is the subject of
a review of its decision as soon as practicable after the decision is made if
the review was conducted in the absence of the person or the person's
representative.
Amendment of section 132 (Access to medical
records)
(1) Section 132(1)
omit, substitute
(1) Subject to subsections (2), (3) and (4), a person who
is the subject of a review must be given access to his or her medical records
and reports that are before the Tribunal.
(1A) Subject to subsection (4), the Tribunal must give
access to the medical records and reports to the following:
(a) the person's adult guardian;
(b) the person's representative.
(2) Section 132(2)
omit
or appeal
(3) Section 132(3)
omit
representative of a person who is the subject of a review or
appeal
substitute
adult guardian or representative of a person who is the
subject of a review
(4) Section 132(4), before "representative" (all
references)
insert
adult guardian or
New section 135A
After section 135
insert
135A. Contempt of
Tribunal
A person must not:
(a) threaten, intimidate or insult the Tribunal, or a member
of the Tribunal, in relation to the performance of the functions or the exercise
of the powers of the Tribunal by the Tribunal or the member; or
(b) interrupt, obstruct or hinder a proceeding of the
Tribunal; or
(c) create a disturbance, or take part in creating or
continuing a disturbance, in or near a place where the Tribunal is
sitting.
Maximum penalty: $2 500 or imprisonment for 6
months.
Amendment of section 136 (Record of
proceedings)
(1) Section 136(1) and (2)
omit, substitute
(1) The Tribunal must:
(a) make a record of all its proceedings in the form of a
recording of sound, or sound and pictures, by electronic means;
and
(b) retain the record for 12 months.
(2) Subject to subsection (3), if a person who is the
subject of a review by the Tribunal requests a copy of the record made under
subsection (1), the Tribunal must give the person a copy of the record at no
cost.
(2) Section 136(3) and (4)
omit
or appeal
(3) Section 136(4) and (5), before "representative" (all
references)
insert
adult guardian or
Amendment of section 139 (Secrecy provision)
(1) Section 139(1)
omit, substitute
(1) Each of the following persons must not, either directly
or indirectly, make a record of, divulge or communicate to someone else, or make
use of, information obtained under this Act:
(a) a person who is or has been a member of the
Tribunal;
(b) a person who is or has been a staff member of the
Tribunal.
Maximum penalty: $5 000.
(2) After section 139(2)
insert
(3) In this section:
"staff member", of the Tribunal, means any of the
following:
(a) the Registrar appointed under section
121(1)(a);
(b) the Deputy Registrar appointed under section
121(1)(b);
(c) a person employed to provide administrative support to
the Tribunal.
Amendment of section 144 (Right of appearance and
representation)
Section 144(3)
omit, substitute
(3) The Supreme Court may hear an appeal in the absence of
the person or the person's representative if all of the following
apply:
(a) reasonable notice of the appeal was given to the person
or representative;
(b) the person or representative had a reasonable
opportunity to attend the appeal;
(c) the person or representative refuses to attend the
appeal.
(3A) The Court may hear the appeal in the absence of the
person if:
(a) in the opinion of the Court, there are exceptional
circumstances that make the attendance of the person inappropriate;
and
(b) the person's representative is given notice of the
appeal and has a reasonable opportunity to attend the appeal.
Amendment of section 150 (Interstate mental health
orders)
(1) Section 150(2), before "welfare"
insert
health or
(2) Section 150(4)(b)
omit
Secretary
substitute
CEO
Amendment of section 151 (Definitions)
Section 151, definition "corresponding law"
omit, substitute
"corresponding law" means a law prescribed by regulation for
this definition;
Repeal of section 152
Section 152
repeal
Amendment of section 154 (Interstate transfer
orders)
(1) Section 154(1), before "welfare"
insert
health or
(2) Section 154(2)(b)
omit
care provider
substitute
carer
(3) Section 154(2)(d)
omit
Secretary
substitute
CEO
Amendment of section 156 (Secretary may consent to
transfer)
(1) Section 156, heading
omit
Secretary
substitute
CEO
(2) Section 156
omit
Secretary
substitute
CEO
Amendment of section 160 (Recommendation or certificate not
to be signed without examination)
Section 160(1)
omit, substitute
(1) A person must not sign a recommendation for psychiatric
examination or a document relating to the admission of a person to an approved
treatment facility or relating to the treatment of a person under this Act
unless:
(a) the person has seen, and personally examined, the person
to whom the recommendation or document relates; or
(b) the signing of the recommendation or document
is:
(i) in accordance with approved procedures;
or
(ii) otherwise permitted under this Act.
Amendment of section 161 (Persons prohibited from signing
recommendation or certificate)
Section 161, after "admission of a person"
insert
as an involuntary patient
Repeal of section 163
Section 163
repeal
Repeal and substitution of section 166
Section 166
repeal, substitute
(1) This section applies to a person who:
(a) is admitted to an approved treatment facility as an
involuntary patient; and
(b) is not a prisoner.
Note for subsection (1)
Section 83 provides for the granting of leave of absence to a
prisoner.
(2) An authorised psychiatric practitioner may grant the
person leave of absence from the facility.
(3) Leave of absence:
(a) must not be granted except in accordance with approved
procedures; and
(b) must be recorded in the approved form;
and
(c) is subject to the conditions determined by the
practitioner.
(4) An authorised psychiatric practitioner may cancel the
leave if satisfied, on reasonable grounds:
(a) the person is likely to suffer from serious mental or
physical deterioration as a result of a change in the person's mental state;
or
(b) the person is likely to cause harm to himself or herself
or to someone else; or
(c) the person has failed to comply with a condition of the
leave.
(5) The practitioner who cancels the leave must take all
reasonable steps to inform the person or the person's representative that the
leave has been cancelled.
166A. Person
absent without approval
(1) This section applies to a person who is admitted to an
approved treatment facility under this Part if:
(a) the person is absent from the facility without leave
granted under section 166(1); or
(b) the person has been granted leave under section 166(1)
and any of the following occurs:
(i) the person fails to return to the facility by the end of
the leave;
(ii) the leave is cancelled;
(iii) the person fails to comply with a condition of the
leave.
Note for subsection (1)
Section 83A applies to a prisoner who is absent from an approved
treatment facility.
(2) A police officer or person authorised by an authorised
psychiatric practitioner may:
(a) apprehend the person; and
(b) return the person to the facility.
(3) Reasonable force and assistance may be used for
subsection (2).
(4) For subsection (2), a police officer may enter private
premises or any other private place where the police officer reasonably believes
the person may be found.
(5) The
person-in-charge of the approved treatment facility must ensure the following
are notified of the person's absence:
(a) the person's adult guardian;
(b) the person's representative;
(c) the person's primary carer;
(d) the Tribunal.
(6) As soon as practicable after the person is found, the
person-in-charge must ensure anyone notified under
subsection (5) is notified that the person has been found.
(7) A notification under this section may be given by the
person-in-charge, an authorised psychiatric
practitioner, a medical practitioner, the senior nurse on duty at the facility,
the person's primary nurse or psychiatric case manager.
(8) A person who gives a notification under subsection (5)
must make a record of the notification in accordance with approved
procedures.
(1) This section applies if:
(a) a person admitted to an approved treatment facility is
missing; or
(b) a person for whom a community management order has been
made is missing.
(2) The person-in-charge of the approved treatment facility
mentioned in subsection (1)(a) or the approved treatment agency administering
the order mentioned in subsection (1)(b) must report the person as missing to a
police officer as soon as possible.
(3) The report must be:
(a) accompanied by sufficient information about the person's
history to enable an assessment of the risk posed by the person and the person's
vulnerability to be made; and
(b) in the approved form.
Amendment of section 167 (Transfer of involuntary
patients)
Section 167(2)
omit, substitute
(2) If the person is transferred to another approved
treatment facility, the person-in-charge of the facility from which the person
is transferred must ensure:
(a) all documents relating to the admission and future
treatment of the person are forwarded to the other facility at the time of the
transfer; and
(b) the person is advised of the person's right to apply to
the Tribunal for a review of the decision to transfer the person to the other
facility.
Repeal and substitution of section 168
Section 168
repeal, substitute
168. Financial
protection order
(1) This section applies if the person-in-charge of an
approved treatment agency is satisfied, after receiving a report from a
designated mental health practitioner and an authorised psychiatric
practitioner:
(a) a person admitted as an involuntary patient to an
approved treatment facility for which the agency is responsible is unable to
exercise effective control over the person's financial affairs;
and
(b) there is an imminent danger to the person's financial
affairs if a financial order is not made for the person.
(2) The person-in-charge must make a financial protection
order for the person.
(3) The order authorises the person-in-charge to take any
necessary action to protect the person from any neglect, abuse or exploitation
of the person's financial affairs.
(4) The order remains in force for the period, not longer
than 14 days, specified in the order.
(5) However, before the expiry of the order, the
person-in-charge may extend the order once by a further period of not longer
than 14 days.
(6) The person-in-charge must:
(a) maintain records of all actions taken under the
financial protection order (including the order as extended under subsection
(5)); and
(b) ensure the records are in the approved form and comply
with approved procedures; and
(c) make the records available for inspection by the
Tribunal or a community visitor.
(7) Before the expiry of the order, or the order as
extended, the
person-in-charge must:
(a) if satisfied the person no longer fulfils the criteria
specified in subsection (1) – revoke the order; or
(b) otherwise – instigate ongoing arrangements for the
financial protection of the person in accordance with approved
procedures.
168A. Notification
of financial protection order
(1) No later than one day after making a financial
protection order for a person, the person-in-charge of an approved treatment
agency must:
(a) notify the Tribunal that the order has been made;
and
(b) ensure the following are notified:
(i) the person;
(ii) a legal practitioner acting or prepared to act for the
person;
(iii) subject to subsection (2) – the person's primary
carer;
(iv) the principal community visitor.
(2) The person-in-charge, after consulting with an
authorised psychiatric practitioner, may decide not to notify the person's
primary carer if the person-in-charge is of the opinion that giving the
notification is not in the person's best interests.
(3) If the person-in-charge decides not to notify the
primary carer because of subsection (2), the person-in-charge must give to the
Tribunal a written report of the decision and the reason for it in the approved
form.
(4) A notification under subsection
(1)(b):
(a) may be given by an authorised psychiatric practitioner,
a medical practitioner or the senior nurse on duty at the approved treatment
facility to which the person has been admitted; and
(b) must:
(i) state the grounds for the order; and
(ii) specify that the order has been made under section
168(2).
(5) The notification may be given orally or in writing but
must be in a language that can be understood by the receiver of the
notification.
(6) A person must make a record of each of the following in
accordance with approved procedures:
(a) a notification under subsection (1);
(b) a decision under subsection (2) not to notify the
primary carer and the reasons for it.
New Part 20 heading
After section 170
insert
PART
20 – REPEALS AND TRANSITIONAL MATTERS FOR
MENTAL HEALTH AND RELATED SERVICES ACT
1998
New Part 21
After section 172
insert
PART
21 – TRANSITIONAL MATTERS FOR MENTAL
HEALTH AND RELATED SERVICES AMENDMENT ACT 2007
In this Part:
"commencement" means the commencement of Mental Health
and Related Services Amendment Act 2007;
"former Act" means the Mental Health and Related Services
Act as in force immediately before the commencement.
(1) The former Act continues to apply in relation to a
review undertaken, or an appeal heard, by the Tribunal that commenced before the
commencement.
(2) Subsection (1) does not limit section 12 of the
Interpretation Act.
175. Actions
taken under former Act
Each of the following has effect as if it had been done
under this Act as in force on the commencement:
(a) a detention in force immediately before the commencement
under section 34(3)(d), 39(1)(a) or (b) or (3)(a) or 42(1) or
(2);
(b) an interim community management order in force
immediately before the commencement under section 45(1);
(c) an appointment of a community visitor in force
immediately before the commencement under section 103(1);
(d) an appointment of a member of a community visitors panel
in force immediately before the commencement under section
110(2);
(e) an order of the Tribunal in force immediately before the
commencement under section 122(2) or 123(5).
176. Transitional
provisions for Part 10
(1) A report prepared for the court under section 74(1) of
the former Act is taken to have been prepared for the court under section
74A.
(2) An order of the court under section 74(1)(d) of the
former Act in force immediately before the commencement has effect as if it were
an order under section 74A(2)(b).
(3) An order of the court under section 75(1)(d) of the
former Act in force immediately before the commencement has effect as if it were
an order under section 75(2)(b).
177. Admission
of prisoners
(1) A prisoner detained at an approved treatment facility
following admission as a voluntary patient under section 81(1) of the former Act
is taken to have been admitted under section 80.
(2) A prisoner detained at an approved treatment facility
following admission as an involuntary patient under section 82(1) of the
former Act is taken to have been admitted under section 81.
178. Transfer
of prisoners
(1) The transfer of a prisoner to an approved treatment
facility under section 81(1) of the former Act is taken to be a transfer
permitted by the Director of Correctional Services under section
80(9).
(2) The transfer of a prisoner to an approved treatment
facility under section 82(1) of the former Act is taken to be a transfer
permitted by the Director of Correctional Services under section
81(4).
A law declared to be a corresponding law under section
152(1) of the former Act is taken to have been prescribed by regulation as a
corresponding law.
Further amendments
The Schedule has effect.
Section 102
FURTHER
AMENDMENTS OF ACT
|
Provision
|
Amendment
|
|
omit
|
substitute
|
|
Sections 67(3), (5) and (6), 68(1), (3) and (4), 69(b), 70,
71(1) and (2), 72, 73(1), 109(3) and 125(2)(a)
|
Secretary
|
CEO
|
|
Part 9 heading
|
FORMS OF TREATMENT
|
TREATMENTS AND MEASURES
|
|
Section 130(1)
|
or hearing an appeal
|
|
|
Sections 133(1) and (2), 134(1), 135(2)(a) to (c) and (3),
138(1) and (2) and 141(3)(a) and (b)
|
or appeal
|
|
|
Section 159(2) and (2)(b)
|
Secretary
(all
references)
|
CEO
|
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