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MENTAL HEALTH ACT 2013 (NO. 2 OF 2013) - SCHEDULE 2 - Custody and escort provisions

MENTAL HEALTH ACT 2013 (NO. 2 OF 2013) - SCHEDULE 2

- Custody and escort provisions

SCHEDULE 2 - Custody and escort provisions

Sections 17(2) ,  31(2) ,  46(2) ,  59(6) ,  60(7) ,  61(4) ,  64(9) ,  72(6) ,  73(5) ,  75(3) ,  78(10) ,  79(9) ,  82(11) ,  83(7) ,  116(5) and  117(4)

PART 1 - Preliminary
1.    Interpretation
In this Schedule –
custodian or escort , of a patient, means a police officer, MHO or authorised person who, by or under this Act, is empowered or authorised to take the patient into protective custody or under escort;
frisk search , of a patient, means a search conducted speedily by any or any combination of the following means:
(a) running the hands over the patient's outer clothing;
(b) passing a metal detection device over or in close proximity to the patient's outer clothing;
(c) examining anything worn or carried by the patient that he or she appears to have removed or discarded voluntarily;
(d) passing a metal detection device over or in close proximity to anything worn or carried by the patient that he or she appears to have removed or discarded voluntarily;
ordinary search , of a patient, means a search limited to –
(a) requiring, in the searcher's discretion, the patient to remove one or more of the following:
(i) any coat, jacket or like outer garment;
(ii) any hat;
(iii) any shoes, boots or like footwear;
(iv) any socks;
(v) any gloves or mittens;
(vi) any handbag, backpack or like carrying item; and
(b) requiring, in the searcher's discretion, the patient to empty all or any of his or her pockets; and
(c) examining the item or items so removed and the contents thereof and, if applicable, the contents of the pockets so emptied;
patient includes a prospective patient;
relevant advice or direction, includes advice or direction from –
(a) the Commissioner of Police or another commissioned police officer within the meaning of the Police Service Act 2003 ; or
(b) a Chief Psychiatrist; or
(c) a medical practitioner; or
(d) the Director of Ambulance Services under the Ambulance Service Act 1982 ;
take , a patient into protective custody or under escort, includes holding the patient in protective custody or under escort.
PART 2 - Powers and Duties
1.    General powers, &c., of custodians and escorts
To take a patient into protective custody or under escort –
(a) the custodian or escort may enlist the assistance of any person, including, if necessary, a police officer; and
(b) the custodian or escort (and any assistant) may use reasonable force against the patient if he or she resists being taken into protective custody or under escort; and
(c) the custodian or escort (and any assistant) may use reasonable force against anyone who may try to prevent the patient from being taken into protective custody or under escort; and
(d) the custodian or escort (if necessary with any assistant) may, without warrant and doing as little damage as possible, enter any premises if the custodian or escort reasonably believes that the patient may be found on those premises; and
(e) the custodian or escort (or any assistant) may take possession of and safeguard any medication, physical aid or other thing that the custodian or escort reasonably believes is or may be necessary to the patient's health, safety or welfare; and
(f) the custodian or escort (or any assistant) may take possession of and safeguard any medication, prescription or other thing that the custodian or escort reasonably believes is or may be relevant to the patient's examination, assessment, treatment or care; and
(g) the custodian or escort may, as circumstances require, transfer physical control of the patient to another custodian or escort or to another police officer, MHO or authorised person (who then has, and may exercise, any powers of the transferring custodian or escort under this clause); and
(h) the custodian or escort is not required to be in close physical proximity to the patient during any examination or assessment.
2.    Search power of custodians and escorts
(1) To take a patient into protective custody or under escort –
(a) the custodian or escort may conduct a frisk search or ordinary search of the patient if the custodian or escort reasonably suspects that the patient may be carrying anything that could –
(i) be a danger to the patient or another person; or
(ii) assist the patient to escape; and
(b) the custodian or escort may seize anything found in the frisk search or ordinary search if he or she reasonably believes it is a thing of the kind referred to in paragraph (a)(i) and (ii) ; and
(c) the custodian or escort may retain anything seized in the frisk search or ordinary search and, as the circumstances may require or indicate –
(i) safeguard the thing for later return to the patient or transfer to a health professional or other person in connection with the patient's examination, assessment, treatment or care; or
(ii) dispose of thing as the custodian or escort thinks fit (after, if he or she adjudges it necessary or expedient to do so, obtaining any relevant advice or direction) including, if the thing is unlawful or dangerous and not required for evidentiary purposes, disposal by means of its destruction.
(2) Before conducting a frisk search or ordinary search pursuant to subclause (1) , the custodian or escort is to inform the patient –
(a) why the search is to be conducted; and
(b) what the search will involve.
(3) A frisk search is, if practicable, to be conducted by a person of the same sex as the person being searched.
3.    Proof of identity
(1) This clause applies if a person is purporting to exercise, discharge or perform a responsibility as a custodian or escort.
(2) Any affected party may ask the person to produce proof of identity.
(3) Subject to subclause (4) , it is the person's duty to comply with the request.
(4) For the purposes of subclause (3) , it is sufficient if the person –
(a) in the case of an MHO, produces his or her MHO identity card; or
(b) in the case of an authorised person, produces his or her identity card, if issued, or instrument of authorisation; or
(c) in the case of a police officer or ambulance officer who is not in uniform, produces his or her MHO identity card, if issued, or –
(i) in the case of a police officer, his or her warrant card; or
(ii) in the case of an ambulance officer, his or her ambulance officer identification card; or
(d) in the case of a police officer or ambulance officer who is in uniform, states that he or she is acting as authorised custodian or escort under this Act.
(5) A failure to comply with subclause (3) does not, of itself, invalidate the subsequent exercise, discharge or performance of the relevant responsibility.
(6) The CFP or controlling authority of an SMHU may issue an authorised person with an identity card for use in connection with escort duties.
(7) In this clause –
affected party means any of the following:
(a) the patient;
(b) a representative or support person of the patient;
(c) the owner or occupier of any premises that the person purporting to act as custodian or escort is, in that capacity, seeking to enter;
(d) the controlling authority of an approved facility from which the person purporting to act as custodian or escort is, in that capacity, seeking to remove the patient;
(e) a Chief Psychiatrist.
4.    Schedule does not limit certain powers
Nothing in this Schedule is to be taken to limit any powers of arrest, search and seizure that a person has under the laws of Tasmania.
PART 3 - Policy
1.    Custody and escort policy
As far as practicable –
(a) patients should not be taken into protective custody if they can be properly examined and assessed against the assessment criteria or treatment criteria without being taken into protective custody; and
(b) patients should not be taken into or held in protective custody or taken or held under escort by force unless –
(i) persuasion or other non-forceful methods have been tried without success; or
(ii) the authorised custodian or escort reasonably believes that it would be futile or inappropriate to try such methods; and
(c) whenever practicable, the use of non-police custodians, escorts and assistants is to be preferred; and
(d) patients taken into protective custody or under escort should be transported with the least delay and discomfort as circumstances reasonably allow; and
(e) where a patient has been granted a leave of absence from an approved facility for a private purpose under escort, the authorised escort is not to unreasonably interfere with the enjoyment of that leave.