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PARLIAMENT OF VICTORIA
Mental Health (Amendment) Act 2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Principal Act 2
PART 2--AMENDMENTS RELATING TO INVOLUNTARY
PATIENTS 3
4. Definitions 3
5. New Division 1 of Part 3 inserted 5
Division 1--Introductory 5
7. Definitions 5
6. Criteria for involuntary treatment 6
7. New section 9 substituted and sections 9A and 9B inserted 7
9. Request and recommendation for involuntary treatment 7
9A. Authority to transport 8
9B. Taking a person to an approved mental health service 9
8. Apprehension of mentally ill persons 10
9. New section 12 substituted and sections 12AA to 12AE inserted 11
12. Involuntary treatment orders--assessment in the
community 11
12AA. Involuntary treatment orders--persons taken to an
approved mental health service 12
12AB. Interim treatment under involuntary treatment order 13
12AC. Examination by authorised psychiatrist 14
12AD. Treatment for involuntary patients 15
12AE. Notification of guardian 16
10. Continued detention and treatment 16
11. New section 13 substituted 16
13. Admission to a general hospital or emergency
department 16
12. New section 14 substituted and sections 14A to 14E inserted 17
14. Community treatment orders 17
14A. Monitoring persons on community treatment orders 19
14B. Extension of community treatment orders 20
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14C. Variation of community treatment orders 21
14D. Revocation of community treatment orders 21
14E. Effect of person's detention in custody etc. on
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involuntary treatment orders and community treatment
orders 22
13. Persons convicted of offences or in prison 23
14. New section 15AB inserted 24
15AB. Monitoring persons on restricted community treatment
orders 24
15. New sections 15B and 15C substituted and sections 15D
and 15E inserted 25
15B. Extension of restricted community treatment orders 25
15C. Variation of restricted community treatment orders 26
15D. Revocation of restricted community treatment orders 27
15E. Effect of person's detention etc. on restricted
community treatment orders 28
16. Transfer of mentally ill prisoners 28
17. Statement of patient's rights 29
18. New section 19A inserted 29
19A. Treatment plans 29
19. Appeals and reviews 31
20. New sections 30 and 31 substituted 32
30. Reviews 32
31. Appeals and reviews may be held concurrently 34
21. Further amendments regarding appeals and reviews 34
22. New section 35A inserted 34
35A. Review of treatment plans 34
23. New section 36 substituted and sections 36A to 36E inserted 35
36. Power of Board on appeal or review of involuntary
treatment orders--patients who are detained 35
36A. Power of Board on appeal or review of hospital
transfer orders 36
36B. Power of Board on appeal or review of orders under
the Sentencing Act 1991--patients who are detained 37
36C. Power of Board on appeal or review for patients on
community treatment orders 37
36D. Power of Board on appeal or review for patients on
restricted community treatment orders 39
36E. Power of Board on appeal or review--continued
detention under section 12A(4) or 12C 40
24. New section 37 substituted 41
37. Discharge of involuntary patients 41
25. Consequential amendments 43
26. Interstate provisions 44
27. Further consequential amendments 46
28. Transitional provisions 48
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Clause Page
PART 3--CONFIDENTIALITY AND OTHER AMENDMENTS 50
29. Definition 50
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30. Secrecy provision--staff of Boards 50
31. Non-psychiatric treatment 50
32. New headings in Division 1 of Part 6 50
33. New section 94A inserted 51
94A. Emergency declaration of approved mental health
services 51
34. New section 95 substituted 51
95. Appointment of registered medical practitioners 51
35. Confidentiality 52
36. New section 149 inserted 55
149. Transitional provisions--Mental Health
55
(Amendment) Act 2003
37. Membership and procedure of Boards 55
PART 4--AMENDMENT OF CORONERS ACT 1985 57
38. Reportable deaths under the Coroners Act 1985 57
ENDNOTES 58
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PARLIAMENT OF VICTORIA
Initiated in Assembly 16 September 2003
Victorian Legislation and Parliamentary Documents
A BILL
to amend the Mental Health Act 1986 with respect to involuntary
patients, confidentiality and other matters, to amend the Coroners Act
1985 with respect to reportable deaths and for other purposes.
Mental Health (Amendment) Act 2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to amend the Mental Health Act 1986--
5 (i) to clarify and improve the operation of
the provisions for involuntary patients
and the making of community
treatment orders;
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Act No.
Part 1--Preliminary
s. 2
(ii) to clarify and improve the operation of
confidentiality provisions;
Victorian Legislation and Parliamentary Documents
(iii) to make miscellaneous amendments;
(b) to amend the Coroners Act 1985 to ensure
5 that the death of a patient who is not held in
care is a reportable death.
2. Commencement
(1) This Act, except Part 2, comes into operation on
the day after the day on which it receives the
10 Royal Assent.
(2) Subject to sub-section (3), Part 2 comes into
operation on a day or days to be proclaimed.
(3) If a provision of Part 2 does not come into
operation before 1 January 2005, it comes into
15 operation on that day.
3. Principal Act
See: In this Act, the Mental Health Act 1986 is called
Act No.
the Principal Act.
59/1986.
Reprint No. 7
as at
1 July 2002
and
amending
Act Nos
67/1998 and
41/2002.
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PART 2--AMENDMENTS RELATING TO INVOLUNTARY
PATIENTS
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4. Definitions
(1) In section 3(1) of the Principal Act--
5 (a) for the definition of "community treatment
order" substitute--
' "community treatment order" means an
order made under section 14;';
(b) for the definition of "involuntary patient"
10 substitute--
' "involuntary patient" means--
(a) a person who is subject to an
involuntary treatment order
(including a person who is subject
15 to a community treatment order);
or
(b) a person who is subject to a
hospital order (including a person
who is subject to a restricted
20 community treatment order); or
(c) a person who is subject to an
assessment order or a diagnosis,
assessment and treatment order; or
(d) a person who is subject to a
25 hospital transfer order; or
(e) a person whose detention and
treatment is continued under
section 12A(4) or 12C; or
(f) a person to whom section 93F,
30 93H or 93K(5) applies;';
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(c) in the definition of "security patient", for
paragraph (a) substitute--
Victorian Legislation and Parliamentary Documents
"(a) a person who is subject to a hospital
security order or a restricted hospital
5 transfer order; or";
(d) insert the following definitions--
' "assessment order" means an order made
under section 90 of the Sentencing Act
1991;
10 "authority to transport" means an
authority to transport under
section 9A(1)(c);
"diagnosis, assessment and treatment
order" means an order made under
15 section 91 of the Sentencing Act 1991;
"hospital order" means an order made
under section 93(1)(d) of the
Sentencing Act 1991;
"hospital security order" means an order
20 made under section 93(1)(e) of the
Sentencing Act 1991;
"hospital transfer order" means an order
made under section 16(3)(a);
"involuntary treatment order" means an
25 order made under section 12 or 12AA;
"restricted community treatment order"
means an order made under
section 15A;
"restricted hospital transfer order" means
30 an order made under section 16(3)(b);
"request and recommendation" means a
request and recommendation under
section 9;
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"treatment plan" for a patient, means the
patient's treatment plan under
section 19A;'.
Victorian Legislation and Parliamentary Documents
(2) For section 3A(2)(a), (b) and (c) of the Principal
5 Act substitute--
"(a) section 8 (criteria for involuntary treatment);
(b) section 12AB (interim treatment under
involuntary treatment order);
(c) section 12AD (treatment for involuntary
10 patients);".
5. New Division 1 of Part 3 inserted
After the heading to Part 3 of the Principal Act
insert--
'Division 1--Introductory
15 7. Definitions
In this Part--
"authorised person" means--
(a) a registered medical practitioner;
or
20 (b) a registered nurse; or
(c) a person who is a member of a
class of health service providers
prescribed as a class of authorised
persons for the purposes of this
25 Part;
"mental health practitioner" means a
person who is a member of a class of
health service providers prescribed as a
class of mental health practitioners for
30 the purposes of this Part;
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"prescribed person" means--
(a) a member of the police force; or
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(b) an ambulance officer; or
(c) a person who is a member of a
5 class prescribed as a class of
prescribed persons for the
purposes of this Part;
"prescribed registered medical
practitioner" means a registered
10 medical practitioner of a class
prescribed as a class of registered
medical practitioners for the purposes
of this Part.'.
6. Criteria for involuntary treatment
15 (1) Insert the following heading to section 8 of the
Principal Act--
"Criteria for involuntary treatment".
(2) For section 8(1) of the Principal Act substitute--
"(1) The criteria for the involuntary treatment of a
20 person under this Act are that--
(a) the person appears to be mentally ill;
and
(b) the person's mental illness requires
immediate treatment and that treatment
25 can be obtained by the person being
subject to an involuntary treatment
order; and
(c) because of the person's mental illness,
involuntary treatment of the person is
30 necessary for his or her health or safety
(whether to prevent a deterioration in
the person's physical or mental
condition or otherwise) or for the
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protection of members of the public;
and
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(d) the person has refused or is unable to
consent to the necessary treatment for
5 the mental illness; and
(e) the person cannot receive adequate
treatment for the mental illness in a
manner less restrictive of his or her
freedom of decision and action.
10 Note: In considering whether a person has refused
or is unable to consent to treatment, see
section 3A.".
7. New section 9 substituted and sections 9A and 9B
inserted
15 For section 9 of the Principal Act substitute--
"9. Request and recommendation for
involuntary treatment
(1) The documents required to initiate the
involuntary treatment of a person are--
20 (a) a request in the prescribed form and
containing the prescribed particulars;
and
(b) a recommendation in the prescribed
form by a registered medical
25 practitioner following a personal
examination of the person.
(2) A request may be signed before or after a
recommendation is made.
(3) A registered medical practitioner must not
30 make a recommendation under sub-section
(1) unless he or she considers that--
(a) the criteria in section 8(1) apply to the
person; and
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(b) an involuntary treatment order should
be made for the person.
Victorian Legislation and Parliamentary Documents
(4) A request and recommendation have effect
for 72 hours following the examination of
5 the person by the registered medical
practitioner who made the recommendation.
(5) While they have effect, a request and
recommendation made in accordance with
this section are sufficient authority for a
10 person referred to in sub-section (6) to--
(a) arrange for the assessment of the person
to whom the recommendation relates
by a mental health practitioner; or
(b) take the person to whom the
15 recommendation relates to an
appropriate approved mental health
service.
(6) The persons who may take action under sub-
section (5) are--
20 (a) the person making the request; or
(b) a person authorised by the person
making the request; or
(c) a prescribed person.
9A. Authority to transport
25 (1) Despite anything to the contrary in section 9,
a person in respect of whom a request is
made in accordance with section 9(1)(a) may
be taken to an appropriate approved mental
health service without a recommendation
30 being made under section 9(1)(b) if--
(a) a registered medical practitioner is not
available within a reasonable period to
consider making a recommendation
despite all reasonable steps having been
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taken to secure the attendance of one;
and
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(b) a mental health practitioner considers
that--
5 (i) the criteria in section 8(1) apply to
the person; and
(ii) the person should be taken to an
approved mental health service for
examination by a registered
10 medical practitioner for the
purpose of making a
recommendation; and
(c) the mental health practitioner completes
an authority to transport in the
15 prescribed form containing the
prescribed particulars.
(2) A person who has made a request under
section 9(1)(a) in respect of a person must
not complete an authority to transport that
20 person under sub-section (1)(c).
9B. Taking a person to an approved mental
health service
(1) This section applies if a person is to be taken
to an approved mental health service
25 under--
(a) a request and recommendation; or
(b) an authority to transport; or
(c) section 12(2)(a) or 12(6); or
(d) section 12AC(4)(b).
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(2) For the purpose of taking the person to the
approved mental health service, a prescribed
person may with such assistance as is
Victorian Legislation and Parliamentary Documents
required and such force as may be
5 reasonably necessary--
(a) enter any premises in which the
prescribed person has reasonable
grounds for believing that the person
may be found; and
10 (b) if necessary to enable the person to be
so taken safely, use such restraint as
may be reasonably necessary.
(3) If a prescribed registered medical
practitioner considers that it is necessary to
15 sedate the person so that the person can be
taken safely to the approved mental health
service, the prescribed registered medical
practitioner may administer or direct an
authorised person to administer sedation to
20 the person.
(4) A person who uses restraint under sub-
section (2) or administers sedation or directs
an authorised person to administer sedation
under sub-section (3) must specify the
25 particulars required by the prescribed form
and deal with the prescribed form in
accordance with the regulations.".
8. Apprehension of mentally ill persons
In section 10 of the Principal Act--
30 (a) in sub-section (5)(b), for "section 9(7A)"
substitute "section 9A(1)";
(b) sub-section (10) is repealed.
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9. New section 12 substituted and sections 12AA to
12AE inserted
Victorian Legislation and Parliamentary Documents
For section 12 of the Principal Act substitute--
'12. Involuntary treatment orders--
5 assessment in the community
(1) This section applies if--
(a) a request and recommendation have
been made for a person; and
(b) a mental health practitioner has
10 assessed the person in accordance with
the request and recommendation.
(2) The mental health practitioner must--
(a) take the person, or arrange for the
person to be taken, to an appropriate
15 approved mental health service; or
(b) make an involuntary treatment order for
the person.
(3) The mental health practitioner must have
regard to the criteria in section 8(1) in
20 deciding what action to take under sub-
section (2).
(4) An involuntary treatment order under this
section must be in the prescribed form and
contain the prescribed particulars.
25 (5) If the mental health practitioner makes an
involuntary treatment order for a person but
does not consider that--
(a) the criteria in section 8(1) apply to the
person; or
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(b) an involuntary treatment order should
be made for the person--
Victorian Legislation and Parliamentary Documents
the practitioner must notify the authorised
psychiatrist of the appropriate approved
5 mental health service as soon as practicable.
(6) At any time after an involuntary treatment
order is made for a person under this section,
but before the authorised psychiatrist
examines the person under section 12AC, a
10 mental health practitioner may take the
person, or arrange for the person to be taken,
to an appropriate approved mental health
service if the mental health practitioner
considers it necessary to do so.
15 (7) If a person is taken to an approved mental
health service under sub-section (6), the
involuntary treatment order is sufficient
authority for the detention of the person in
the approved mental health service until the
20 authorised psychiatrist examines him or her
under section 12AC.
12AA. Involuntary treatment orders--persons
taken to an approved mental health
service
25 (1) This section applies if--
(a) a request and recommendation have
been made for a person; and
(b) the person has been taken to an
approved mental health service.
30 (2) A registered medical practitioner employed
by the approved mental health service to
which the person has been taken must make
an involuntary treatment order for the
person.
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(3) An involuntary treatment order under this
section must be in the prescribed form and
contain the prescribed particulars.
Victorian Legislation and Parliamentary Documents
(4) An involuntary treatment order made for a
5 person in accordance with this section is
sufficient authority for the detention of the
person in an approved mental health service.
(5) If the registered medical practitioner who
makes an involuntary treatment order for a
10 person under sub-section (2) does not
consider that--
(a) the criteria in section 8(1) apply to the
person; or
(b) an involuntary treatment order should
15 be made for the person--
the practitioner must notify the authorised
psychiatrist as soon as practicable.
12AB. Interim treatment under involuntary
treatment order
20 (1) This section applies to a person who is
subject to an involuntary treatment order at
any time before he or she is examined by the
authorised psychiatrist under section 12AC.
(2) If a registered medical practitioner employed
25 by the approved mental health service
considers that--
(a) the person requires any treatment
immediately; and
(b) the person is unable to consent to that
30 treatment; and
(c) the treatment required is of such a
nature that it would not be in the best
interests of the person to await
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examination by the authorised
psychiatrist under section 12AC--
Victorian Legislation and Parliamentary Documents
the practitioner may on behalf of the person
consent to the treatment being carried out
5 until the authorised psychiatrist examines the
person under section 12AC.
Note: In considering whether a person has refused or
is unable to consent to treatment, see
section 3A.
10 12AC. Examination by authorised psychiatrist
(1) If an involuntary treatment order is made for
a person, the authorised psychiatrist must
examine the person--
(a) if section 12(5) or 12AA(5) applies--as
15 soon as practicable after the order is
made, but in any case within 24 hours
after the order is made; or
(b) otherwise--within 24 hours after the
order is made.
20 (2) On examining the person under sub-
section (1)--
(a) if the authorised psychiatrist considers
that the criteria in section 8(1) do not
apply to the person--the authorised
25 psychiatrist must discharge the person
from the order;
(b) if the authorised psychiatrist is satisfied
that the criteria in section 8(1) apply to
the person--the authorised psychiatrist
30 must confirm the order.
(3) If the authorised psychiatrist confirms an
involuntary treatment order under sub-
section (2)(b), he or she may make a
community treatment order under section 14
35 for the person.
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(4) If the authorised psychiatrist confirms the
involuntary treatment order under sub-
section (2)(b) but does not make a
Victorian Legislation and Parliamentary Documents
community treatment order under sub-
5 section (3)--
(a) the person is to be detained in the
approved mental health service; and
(b) if the person is not currently in the
approved mental health service, the
10 authorised psychiatrist may take the
person, or arrange for the person to be
taken, to the approved mental health
service.
(5) The authorised psychiatrist may confirm an
15 involuntary treatment order without making
a community treatment order only if he or
she is satisfied that the treatment required for
the person cannot be obtained through the
making of a community treatment order.
20 (6) A registered medical practitioner who has
made a recommendation under section 9 in
respect of a person must not examine the
person under this section.
12AD. Treatment for involuntary patients
25 (1) An involuntary patient is to be given
treatment for his or her mental illness.
(2) If an involuntary patient refuses to consent to
necessary treatment or is unable to consent to
treatment for his or her mental illness,
30 consent in writing may be given by the
authorised psychiatrist.
Note: In considering whether a person has refused or is
unable to consent to treatment, see section 3A.
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12AE. Notification of guardian
If a person becomes an involuntary patient,
Victorian Legislation and Parliamentary Documents
the authorised psychiatrist must ensure that
any guardian of the person is notified that the
5 person has become an involuntary patient
and the grounds for the person becoming an
involuntary patient.".
10. Continued detention and treatment
(1) For section 12A(1) of the Principal Act
10 substitute--
"(1) This section applies to a person who is
detained in an approved mental health
service under an involuntary treatment order
that has been confirmed under section
15 12AC.".
(2) In section 12A(2) of the Principal Act, after
"authorised psychiatrist" (where secondly
occurring) insert ", despite discharging the person
from the order under section 37(1),".
20 (3) After section 12D(2) of the Principal Act insert--
"(3) A person is discharged from their
involuntary treatment order on the making of
an application by the chief psychiatrist under
sub-section (1) in relation to the person, but
25 the person remains an involuntary patient.".
11. New section 13 substituted
For section 13 of the Principal Act substitute--
"13. Admission to a general hospital or
emergency department
30 (1) An involuntary treatment order may be made
for a person who--
(a) satisfies the criteria in section 8(1); and
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(b) requires medical treatment which is
life-sustaining or to prevent serious
physical deterioration and which can
Victorian Legislation and Parliamentary Documents
only be appropriately provided in a
5 general hospital or emergency
department of the general hospital.
(2) This Division applies in relation to the
making of an involuntary treatment order for
a person referred to in sub-section (1) as if a
10 reference in this Division (other than in this
section) to an approved mental health service
were a reference to the general hospital or
emergency department of the general
hospital.
15 (3) If an involuntary treatment order is made for
a person referred to in sub-section (1), the
person is taken to be absent on leave from
the appropriate approved mental health
service, but section 42 does not apply to the
20 person.".
12. New section 14 substituted and sections 14A to 14E
inserted
For section 14 of the Principal Act substitute--
'14. Community treatment orders
25 (1) At any time, an authorised psychiatrist may
make a community treatment order for a
person who is subject to an involuntary
treatment order if the authorised psychiatrist
is satisfied that--
30 (a) the criteria in section 8(1) apply to the
person; and
(b) the treatment required for the person
can be obtained through the making of
a community treatment order.
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(2) A community treatment order is an order
requiring the person to obtain treatment for
their mental illness while not detained in an
Victorian Legislation and Parliamentary Documents
approved mental health service.
5 (3) A community treatment order--
(a) must specify the duration of the order,
which must not exceed 12 months; and
(b) may specify where the person must
live, if this is necessary for the
10 treatment of the person's mental illness.
(4) If an authorised psychiatrist makes a
community treatment order for a person, the
authorised psychiatrist must--
(a) inform the person that the order has
15 been made; and
(b) give the person a copy of the order; and
(c) inform the person of the grounds on
which the authorised psychiatrist
decided to make the order.
20 (5) On the expiry (other than by revocation) of a
community treatment order, or a person's
discharge from a community treatment order,
the person's involuntary treatment order is
taken to expire and, consequently, the person
25 ceases to be an involuntary patient.
Note: A community treatment order can be extended
under section 14B before its expiry.
(6) Despite sub-section (5), the person does not
cease to be an involuntary patient if a
30 hospital order or hospital transfer order is
made for the person.
Note: Section 14E(4) provides that a person is
discharged from his or her involuntary
treatment order on the making of a hospital
35 order, hospital transfer order, hospital security
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order or restricted hospital transfer order.
However, if a hospital order or hospital
transfer order is made, the person remains an
Victorian Legislation and Parliamentary Documents
involuntary patient. If a hospital security order
5 or restricted hospital transfer order is made, the
person becomes a security patient.
14A. Monitoring persons on community
treatment orders
(1) The supervising medical practitioner of a
10 person subject to a community treatment
order must assess the person at regular
intervals.
(2) In assessing the person, the supervising
medical practitioner must consider
15 whether--
(a) the criteria in section 8(1) still apply to
the person; and
(b) the treatment required for the person
can still be obtained under the order.
20 (3) If the supervising medical practitioner does
not consider that--
(a) the criteria in section 8(1) still apply to
the person; or
(b) the treatment required for the person
25 can still be obtained under the order--
the supervising medical practitioner must
notify the monitoring psychiatrist as soon as
practicable.
(4) If the supervising medical practitioner
30 notifies the monitoring psychiatrist under
sub-section (3), the monitoring psychiatrist
must examine the person subject to the order
as soon as practicable.
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(5) In this section--
"monitoring psychiatrist" of a person
Victorian Legislation and Parliamentary Documents
subject to a community treatment order,
means the monitoring psychiatrist
5 specified in the person's treatment plan;
"supervising medical practitioner" of a
person subject to a community
treatment order, means the supervising
medical practitioner specified in the
10 person's treatment plan.
14B. Extension of community treatment orders
(1) The authorised psychiatrist may extend a
community treatment order for a period not
exceeding 12 months if the authorised
15 psychiatrist--
(a) examines the person subject to the
order; and
(b) is satisfied that--
(i) the criteria in section 8(1) still
20 apply to the person; and
(ii) the treatment required for the
person can be obtained through
the extension of the order.
(2) The extension takes effect from the time the
25 authorised psychiatrist makes the extension.
(3) There is no limit to the number of times a
community treatment order may be extended
under sub-section (1).
(4) For the avoidance of doubt, a community
30 treatment order cannot be extended after it
has expired.
(5) If an authorised psychiatrist extends a
person's community treatment order, the
authorised psychiatrist must--
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(a) inform the person that the order has
been extended; and
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(b) give the person a copy of the extension;
and
5 (c) inform the person of the grounds on
which the authorised psychiatrist
decided to extend the order.
14C. Variation of community treatment orders
(1) The authorised psychiatrist may vary a
10 community treatment order at any time.
(2) If the authorised psychiatrist does so, he or
she must--
(a) inform the person that the order has
been varied; and
15 (b) give the person a copy of the order as
varied; and
(c) inform the person of the grounds on
which the authorised psychiatrist
decided to vary the order.
20 14D. Revocation of community treatment
orders
(1) The authorised psychiatrist may revoke a
community treatment order if satisfied on
reasonable grounds that--
25 (a) the criteria in section 8(1) still apply to
the person subject to the order; and
(b) the treatment required for the person
cannot be obtained under the order.
(2) The authorised psychiatrist may also revoke
30 a community treatment order if--
(a) the authorised psychiatrist is satisfied
on reasonable grounds that the person
subject to the order has not complied
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with the order or the person's treatment
plan; and
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(b) reasonable steps have been taken,
without success, to obtain compliance
5 with the order or plan; and
(c) the authorised psychiatrist is satisfied
on reasonable grounds that there is a
significant risk of deterioration in the
person's mental or physical condition
10 because of the non-compliance.
(3) If the authorised psychiatrist revokes a
community treatment order--
(a) the authorised psychiatrist must make
reasonable efforts to inform the person
15 that the order has been revoked and that
the person must go to an approved
mental health service; and
(b) the person remains an involuntary
patient under the person's involuntary
20 treatment order and is taken to be
absent without leave from an approved
mental health service.
Note: Section 43 provides for the apprehension
of involuntary patients absent without
25 leave.
14E. Effect of person's detention in custody etc.
on involuntary treatment orders and
community treatment orders
(1) An involuntary treatment order or
30 community treatment order has no effect
while a person subject to it is in custody
under a sentence of imprisonment or under
any order of a court requiring the person to
be held in custody.
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(2) A community treatment order to which sub-
section (1) applies expires at the time it
would otherwise have expired under this Act
Victorian Legislation and Parliamentary Documents
despite any period during which it has no
5 effect.
Note: See section 14(5) for the effect of the expiry of
a community treatment order on the person's
involuntary treatment order.
(3) For the purposes of sub-section (1), a person
10 is in custody if the person is held in--
(a) a prison; or
(b) a remand centre, youth residential
centre or youth training centre (within
the meaning of the Children and
15 Young Persons Act 1989); or
(c) a police gaol within the meaning of the
Corrections Act 1986.
(4) A person is discharged from his or her
involuntary treatment order and community
20 treatment order (if any) on the making of a
hospital order, hospital transfer order,
hospital security order or restricted hospital
transfer order for the person.'.
13. Persons convicted of offences or in prison
25 (1) For section 15(1) of the Principal Act
substitute--
"(1) If an order is made under section 36B(2) or
37(4) for a person to be discharged from his
or her assessment order or diagnosis,
30 assessment and treatment order, the Board or
chief psychiatrist (as the case requires) must
immediately notify the court.".
(2) In section 15A(2) of the Principal Act, omit
"under section 93(1)(d) of the Sentencing Act
35 1991".
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(3) For section 15A(4) and (5) of the Principal Act
substitute--
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"(4) A restricted community treatment order is an
order requiring the person to obtain
5 treatment for their mental illness while not
detained in an approved mental health
service.
(5) A restricted community treatment order must
specify--
10 (a) the duration of the order, which must
not exceed 12 months; and
(b) any conditions that the chief
psychiatrist considers appropriate.
(5A) If the chief psychiatrist makes a restricted
15 community treatment order for a person, the
chief psychiatrist must--
(a) inform the person that the order has
been made; and
(b) give the person a copy of the order; and
20 (c) inform the person of the grounds on
which the chief psychiatrist decided to
make the order.".
(4) In section 15A(9) of the Principal Act, for
"section 36(2A)(c)" substitute "section 36D".
25 14. New section 15AB inserted
After section 15A of the Principal Act insert--
'15AB. Monitoring persons on restricted
community treatment orders
(1) The monitoring psychiatrist of a person
30 subject to a restricted community treatment
order must assess the person at regular
intervals.
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(2) In assessing the person, the monitoring
psychiatrist must consider whether--
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(a) the criteria in section 15A(1) still apply
to the person; and
5 (b) the treatment required for the person
can still be obtained under the order.
(3) If the monitoring psychiatrist does not
consider that--
(a) the criteria in section 15A(1) still apply
10 to the person; or
(b) the treatment required for the person
can still be obtained under the order--
the monitoring psychiatrist must notify the
chief psychiatrist as soon as practicable.
15 (4) If the monitoring psychiatrist notifies the
chief psychiatrist under sub-section (3), the
chief psychiatrist must examine the person
subject to the order as soon as practicable.
(5) In this section--
20 "monitoring psychiatrist" of a person
subject to a restricted community
treatment order, means the monitoring
psychiatrist specified in the person's
treatment plan.'.
25 15. New sections 15B and 15C substituted and sections
15D and 15E inserted
For sections 15B and 15C of the Principal Act
substitute--
"15B. Extension of restricted community
30 treatment orders
(1) The chief psychiatrist may extend a
restricted community treatment order for a
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period not exceeding 12 months if the chief
psychiatrist--
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(a) examines the person subject to the
order; and
5 (b) is satisfied that--
(i) the criteria in section 15A(1) still
apply to the person; and
(ii) the treatment required for the
person can be obtained through
10 the extension of the order.
(2) The extension takes effect from the time the
chief psychiatrist makes the extension.
(3) There is no limit to the number of times a
restricted community treatment order may be
15 extended under sub-section (1).
(4) If the chief psychiatrist extends a person's
restricted community treatment order, the
chief psychiatrist must--
(a) inform the person that the order has
20 been extended; and
(b) give the person a copy of the extension;
and
(c) inform the person of the grounds on
which the chief psychiatrist decided to
25 extend the order.
15C. Variation of restricted community
treatment orders
(1) The chief psychiatrist may vary a restricted
community treatment order at any time.
30 (2) If the chief psychiatrist does so, the chief
psychiatrist must--
(a) inform the person that the order has
been varied; and
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(b) give the person a copy of the order as
varied; and
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(c) inform the person of the grounds on
which the chief psychiatrist decided to
5 vary the order.
15D. Revocation of restricted community
treatment orders
(1) The chief psychiatrist may revoke a
restricted community treatment order if
10 satisfied on reasonable grounds that--
(a) the criteria in section 93(1)(b) of the
Sentencing Act 1991 apply to the
person subject to the order but the
criteria in section 15A(1) of this Act do
15 not; or
(b) the person subject to the order has
failed to comply with the order or the
person's treatment plan.
(2) If the chief psychiatrist revokes a restricted
20 community treatment order--
(a) the chief psychiatrist must make
reasonable efforts to inform the person
that the order has been revoked and that
the person must go to an approved
25 mental health service; and
(b) the person remains an involuntary
patient under the person's hospital order
who is taken to be absent without leave
from an approved mental health
30 service.
Note: Section 43 provides for the apprehension
of involuntary patients absent without
leave.
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15E. Effect of person's detention etc. on
restricted community treatment orders
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(1) A hospital order or restricted community
treatment order has no effect while a person
5 subject to it is in custody under a sentence of
imprisonment or under any order of a court
requiring the person to be held in custody.
(2) A restricted community treatment order to
which sub-section (1) applies expires at the
10 time it would otherwise have expired under
this Act despite any period during which it
has no effect.
(3) For the purposes of sub-section (1), a person
is in custody if the person is held in--
15 (a) a prison; or
(b) a remand centre, youth residential
centre or youth training centre (within
the meaning of the Children and
Young Persons Act 1989); or
20 (c) a police gaol within the meaning of the
Corrections Act 1986.".
16. Transfer of mentally ill prisoners
(1) In section 16(1) and (2) of the Principal Act, for
"a hospital order" substitute "an order under this
25 section".
(2) For section 16(3) of the Principal Act
substitute--
'(3) The Secretary to the Department of Justice
may make either of the following orders
30 under this section--
(a) an order under which the person is
admitted to and detained in an approved
mental health service as an involuntary
patient ("hospital transfer order");
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(b) an order under which the person is
admitted to and detained in an approved
mental health service as a security
Victorian Legislation and Parliamentary Documents
patient ("restricted hospital transfer
5 order").'.
(3) In section 16(4) of the Principal Act, for "hospital
order or a restricted hospital order" substitute
"hospital transfer order or restricted hospital
transfer order,".
10 17. Statement of patient's rights
In section 18(1) of the Principal Act--
(a) for "patient must upon admission to an
approved mental health service be given"
substitute "person on becoming a patient
15 must be given";
(b) in paragraph (b), for "hospitalization"
substitute "treatment and care".
18. New section 19A inserted
After section 19 of the Principal Act insert--
20 '19A. Treatment plans
(1) The authorised psychiatrist must prepare,
review on a regular basis and revise as
required, a treatment plan for each patient.
(2) In preparing, reviewing and revising a
25 treatment plan for a patient, the authorised
psychiatrist must take into account--
(a) the wishes of the patient, as far as they
can be ascertained; and
(b) unless the patient objects, the wishes of
30 any guardian, family member or
primary carer who is involved in
providing ongoing care or support to
the patient; and
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(c) whether the treatment to be carried out
is only to promote and maintain the
patient's health or well-being; and
Victorian Legislation and Parliamentary Documents
(d) any beneficial alternative treatments
5 available; and
(e) the nature and degree of any significant
risks associated with the treatment or
any alternative treatment; and
(f) any prescribed matters.
10 (3) The treatment plan for a patient who is
detained in an approved mental health
service must contain an outline of the
treatment the patient is to receive.
(4) The treatment plan for a patient who is
15 subject to a community treatment order or
restricted community treatment order must
contain or specify--
(a) an outline of the treatment the patient is
to receive; and
20 (b) the authorised psychiatrist or delegate
of the authorised psychiatrist who is to
monitor the patient's treatment
("monitoring psychiatrist"); and
(c) the registered medical practitioner who
25 is to supervise the patient's treatment
("supervising medical practitioner");
and
(d) the patient's case manager; and
(e) the place at which the patient is to
30 receive treatment; and
(f) the times at which the patient is
required to attend to receive treatment;
and
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(g) the intervals at which--
(i) for a community treatment
Victorian Legislation and Parliamentary Documents
order--the supervising medical
practitioner must submit a written
5 report concerning the patient's
treatment to the monitoring
psychiatrist;
(ii) for a restricted community
treatment order--the monitoring
10 psychiatrist must submit a written
report concerning the patient's
treatment to the chief psychiatrist.
(5) A treatment plan may contain anything else
the authorised psychiatrist thinks
15 appropriate.
(6) The authorised psychiatrist must--
(a) give the patient a copy of the patient's
treatment plan and any revisions to it;
and
20 (b) discuss the treatment plan with the
patient.'.
19. Appeals and reviews
(1) For section 22(1)(a) and (b) of the Principal Act
substitute--
25 "(a) to hear appeals by or on behalf of
involuntary patients and security patients;
(b) to review periodically the orders made for
involuntary patients and security patients and
their treatment plans;".
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(2) For section 29(1) of the Principal Act
substitute--
Victorian Legislation and Parliamentary Documents
"(1) An appeal may be made to the Board at any
time--
5 (a) by an involuntary patient--
(i) against his or her involuntary
treatment order, community
treatment order, hospital order,
restricted community treatment
10 order, assessment order, diagnosis,
assessment and treatment order or
hospital transfer order; or
(ii) against his or her continued
detention under section 12A(4)
15 or 12C;
(b) by a security patient against his or her
hospital security order or restricted
hospital transfer order.
(1A) An appeal to the Board may also be made at
20 any time on behalf of an involuntary patient
or security patient by a community visitor or
any other person who satisfies the Board of a
genuine concern for the involuntary patient
or security patient.".
25 20. New sections 30 and 31 substituted
For sections 30 and 31 of the Principal Act
substitute--
"30. Reviews
(1) The Board must conduct an initial review
30 of--
(a) an involuntary treatment order, hospital
order, assessment order, diagnosis,
assessment and treatment order or
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hospital transfer order to which an
involuntary patient is subject;
Victorian Legislation and Parliamentary Documents
(b) a hospital security order or restricted
hospital transfer order to which a
5 security patient is subject--
within 8 weeks after the order is made.
(2) The Board must conduct an initial review of
the continued detention of an involuntary
patient under section 12C within 14 days
10 after the day on which the committee
consented under section 12B to the
continued detention.
(3) The Board must conduct a periodic review
of--
15 (a) an involuntary treatment order, hospital
order, assessment order, diagnosis,
assessment and treatment order or
hospital transfer order to which an
involuntary patient is subject;
20 (b) a hospital security order or restricted
hospital transfer order to which a
security patient is subject;
(c) the continued detention of an
involuntary patient under
25 section 12C--
at intervals not exceeding 12 months
following the initial review.
(4) The Board must conduct a review of the
extension of a community treatment order or
30 restricted community treatment order within
8 weeks after the order is extended.
(5) The Board must conduct a review of a
restricted community treatment order as soon
as practicable after receiving a copy of the
35 order under section 15A(6).
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31. Appeals and reviews may be held
concurrently
Victorian Legislation and Parliamentary Documents
The Board may conduct more than one
appeal or review (or both) in respect of the
5 same person concurrently.".
21. Further amendments regarding appeals and reviews
(1) After section 32(1) of the Principal Act insert--
"(1A) The authorised psychiatrist must give a copy
of the notice to the patient's case manager as
10 soon as practicable after receiving the
notice.".
(2) For section 32(2)(c) of the Principal Act
substitute--
"(c) the legal status under this Act of the person
15 to whom the hearing relates; and".
22. New section 35A inserted
After section 35 of the Principal Act insert--
"35A. Review of treatment plans
(1) On each appeal and review under this
20 Division, the Board must review the patient's
treatment plan to determine whether--
(a) the authorised psychiatrist has complied
with section 19A in making, reviewing
or revising the plan (as the case may
25 be); and
(b) the plan is capable of being
implemented by the approved mental
health service.
(2) The Board may order the authorised
30 psychiatrist to revise the treatment plan, if
the Board is satisfied that--
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(a) the authorised psychiatrist has not
complied with section 19A in making,
reviewing or revising the plan; or
Victorian Legislation and Parliamentary Documents
(b) the plan is not capable of being
5 implemented by the approved mental
health service.".
23. New section 36 substituted and sections 36A to 36E
inserted
For section 36 of the Principal Act substitute--
10 "36. Power of Board on appeal or review of
involuntary treatment orders--patients
who are detained
(1) This section applies on an appeal or review
for a patient who is detained in an approved
15 mental health service under an involuntary
treatment order.
(2) If the Board considers that the criteria in
section 8(1) do not apply to the patient, the
Board must order that the patient be
20 discharged from the involuntary treatment
order.
(3) If the Board is satisfied that the criteria in
section 8(1) apply to the patient, the Board
must confirm the involuntary treatment
25 order.
(4) If the Board confirms the involuntary
treatment order, the Board may order the
authorised psychiatrist to make a community
treatment order for the patient within a
30 reasonable period specified by the Board, if
the Board considers that the treatment
required for the person can be obtained
through the making of a community
treatment order.
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(5) The authorised psychiatrist may apply to the
Board, at any time during the period
specified under sub-section (4), for the Board
Victorian Legislation and Parliamentary Documents
to reconsider an order made under that sub-
5 section.
(6) Sections 31 to 35 and this section apply to an
application under sub-section (5) as if it were
a review.
Note: The Board must take various factors into
10 consideration in deciding what to do on the
appeal or review, including the patient's social
circumstances--see section 22(2).
36A. Power of Board on appeal or review of
hospital transfer orders
15 (1) This section applies on an appeal or review
for a patient who is detained in an approved
mental health service under a hospital
transfer order.
(2) If the Board considers that the continued
20 detention of the patient as an involuntary
patient is unnecessary, the Board must order
that the patient be discharged from the
hospital transfer order and be returned to a
prison or other place of confinement (within
25 the meaning of section 16).
(3) If the Board considers that the continued
detention of the patient as an involuntary
patient is necessary, the Board must confirm
the hospital transfer order.
30 (4) The Board must have regard to the criteria in
section 16(2)(a) and (4) in making a decision
on the appeal or review.
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36B. Power of Board on appeal or review of
orders under the Sentencing Act 1991--
patients who are detained
Victorian Legislation and Parliamentary Documents
(1) This section applies on an appeal or review
5 for a patient who is detained in an approved
mental health service under a hospital order,
an assessment order or a diagnosis,
assessment and treatment order.
(2) If the Board considers that the continued
10 detention of the patient as an involuntary
patient is unnecessary, the Board must order
that the patient be discharged from the order.
(3) If the Board considers that the continued
detention of the patient as an involuntary
15 patient is necessary, the Board must confirm
the order.
(4) The Board must have regard to the criteria in
section 90(b), 91(b) or 93(1)(b) of the
Sentencing Act 1991 (as the case requires)
20 in making a decision on the appeal or review.
36C. Power of Board on appeal or review for
patients on community treatment orders
(1) This section applies on an appeal or review
for a patient who is subject to a community
25 treatment order.
(2) If the Board considers that the criteria in
section 8(1) do not apply to the patient, the
Board must order that the patient be
discharged from the community treatment
30 order.
Note: See section 14(5) for the effect of the discharge
from a community treatment order on the
patient's involuntary treatment order.
(3) If the Board is satisfied that the criteria in
35 section 8(1) apply to the patient--the Board
may--
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(a) confirm or vary the community
treatment order; or
Victorian Legislation and Parliamentary Documents
(b) revoke the community treatment order
if satisfied on reasonable grounds that
5 the treatment required for the patient
cannot be obtained under the order.
(4) The Board may also revoke a community
treatment order if--
(a) the Board is satisfied on reasonable
10 grounds that the patient has not
complied with the order or the patient's
treatment plan; and
(b) reasonable steps have been taken,
without success, to obtain compliance
15 with the order or plan; and
(c) the Board is satisfied on reasonable
grounds that there is a significant risk
of deterioration in the patient's mental
or physical condition because of the
20 non-compliance.
(5) If the Board revokes a community treatment
order--
(a) the Board must make reasonable efforts
to inform the patient that the order has
25 been revoked and that the patient must
go to an approved mental health
service; and
(b) the patient remains an involuntary
patient under his or her involuntary
30 treatment order and is taken to be
absent without leave from an approved
mental health service.
Note: Section 43 provides for the apprehension
of involuntary patients absent without
35 leave.
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(6) If the Board varies a community treatment
order, the Board must--
Victorian Legislation and Parliamentary Documents
(a) inform the person that the order has
been varied; and
5 (b) give the person a copy of the order as
varied; and
(c) inform the person of the grounds on
which the Board decided to vary the
order.
10 36D. Power of Board on appeal or review for
patients on restricted community
treatment orders
(1) This section applies on an appeal or review
for a patient who is subject to a restricted
15 community treatment order.
(2) If the Board considers that neither the criteria
in section 93(1)(b) of the Sentencing Act
1991 nor the criteria in section 15A(1) of this
Act apply to the patient, the Board must
20 order that the patient be discharged from the
restricted community treatment order.
Note: See section 37(6) for the effect of the discharge
from a restricted community treatment order
on the patient's hospital order.
25 (3) If the Board considers that the criteria in
section 93(1)(b) of the Sentencing Act 1991
do not apply to the patient but the criteria in
section 15A(1) of this Act do apply, the
Board may--
30 (a) in the case of a review under
section 30(4)--approve the restricted
community treatment order; or
(b) in any other case--confirm the
restricted community treatment order.
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(4) The Board may revoke a restricted
community treatment order if satisfied that--
Victorian Legislation and Parliamentary Documents
(a) the criteria in section 93(1)(b) of the
Sentencing Act 1991 apply to the
5 person subject to the order but the
criteria in section 15A(1) of this Act do
not; or
(b) the person subject to the order has
failed to comply with the order or the
10 person's treatment plan.
(5) If the Board revokes a restricted community
treatment order--
(a) the Board must make reasonable efforts
to inform the patient that the order has
15 been revoked and that the patient must
go to an approved mental health
service; and
(b) the patient remains an involuntary
patient under his or her hospital order
20 and is taken to be absent without leave
from an approved mental health
service.
Note: Section 43 provides for the apprehension
of involuntary patients absent without
25 leave.
(6) On the discharge by the Board of a patient
from a restricted community treatment order,
the patient is taken to be discharged from his
or her hospital order and, consequently, he or
30 she ceases to be an involuntary patient.
36E. Power of Board on appeal or review--
continued detention under section 12A(4)
or 12C
(1) This section applies on an appeal or review
35 for a patient whose detention has been
continued under section 12A(4) or 12C.
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(2) If the Board is not satisfied that the
continued detention of the patient is
necessary, the Board must order that the
Victorian Legislation and Parliamentary Documents
patient be discharged as an involuntary
5 patient.
(3) The Board must have regard to the criteria in
section 12A(2) in making a decision on the
appeal or review.".
24. New section 37 substituted
10 For section 37 of the Principal Act substitute--
"37. Discharge of involuntary patients
(1) If the authorised psychiatrist considers that
the criteria in section 8(1) do not apply to a
person who is detained in the approved
15 mental health service as an involuntary
patient under an involuntary treatment order,
the authorised psychiatrist must discharge
the person from the involuntary treatment
order.
20 (2) If the authorised psychiatrist considers that
the criteria in section 8(1) do not apply to a
person who is receiving treatment from the
approved mental health service under a
community treatment order, the authorised
25 psychiatrist must discharge the person from
the community treatment order.
Note: See section 14(5) for the effect of the discharge
from a community treatment order on the
person's involuntary treatment order.
30 (3) If the chief psychiatrist, having regard to the
criteria in section 16(2)(a) and (4), considers
that the continued detention of a person in an
approved mental health service under a
hospital transfer order is unnecessary, the
35 chief psychiatrist must, after advising the
Secretary to the Department of Justice, order
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that the person be discharged from the order
and be returned to a prison or other place of
confinement (within the meaning of
Victorian Legislation and Parliamentary Documents
section 16).
5 (4) If the chief psychiatrist, having regard to the
criteria in section 90(b), 91(b) or 93(1)(b) of
the Sentencing Act 1991 (as the case
requires), considers that the continued
detention of a person in an approved mental
10 health service under an assessment order, a
diagnosis, assessment and treatment order or
a hospital order is unnecessary, the chief
psychiatrist must order that the person be
discharged from the order.
15 (5) If the chief psychiatrist considers that neither
the criteria in section 93(1)(b) of the
Sentencing Act 1991 nor the criteria in
section 15A(1) of this Act apply to a person
who is subject to a restricted community
20 treatment order, the chief psychiatrist must
discharge the person from the restricted
community treatment order.
(6) On the discharge of a person from a
restricted community treatment order, the
25 person is taken to be discharged from his or
her hospital order and, consequently, he or
she ceases to be an involuntary patient.
(7) For the avoidance of doubt, a person who is
discharged from an involuntary treatment
30 order under sub-section (1) remains an
involuntary patient if the authorised
psychiatrist makes an application under
section 12A for approval of the continued
detention and treatment of the person.".
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25. Consequential amendments
(1) In section 38(a) of the Principal Act, for
Victorian Legislation and Parliamentary Documents
"section 36(3)" substitute "section 36A(2)".
(2) For section 39(7) of the Principal Act
5 substitute--
"(7) On an appeal under sub-section (5), the
Board may--
(a) confirm the transfer order; or
(b) refuse to confirm the order and, if the
10 patient has already been transferred
under the order, direct that the patient
be transferred back.".
(3) In section 42(4) of the Principal Act, for "32 and
36" substitute "31 to 35".
15 (4) In section 43 of the Principal Act--
(a) in sub-section (1)(a), for "section 9"
substitute "section 7";
(b) in sub-section (1A), for "Sub-sections (5),
(6) and (7) of section 9 apply" substitute
20 "Section 9B applies".
(5) In the Principal Act--
(a) in section 53--
(i) in sub-section (1)(a), for "section 9"
substitute "section 7";
25 (ii) in sub-section (1A), for "Sub-sections
(5), (6) and (7) of section 9 apply"
substitute "Section 9B applies";
(b) in section 53AD--
(i) in sub-section (1)(a), for "section 9"
30 substitute "section 7";
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(ii) in sub-section (2), for "Sub-sections
(5), (6) and (7) of section 9 apply"
substitute "Section 9B applies".
Victorian Legislation and Parliamentary Documents
26. Interstate provisions
5 (1) In the Principal Act--
(a) in section 93A, in the definition of
"prescribed person", for "section 9(8)"
substitute "section 7";
(b) in section 93E(1) omit ", admitted to";
10 (c) in section 93E(4), for "Sub-sections (5), (6)
and (7) of section 9 apply" substitute
"Section 9B applies".
(2) For section 93F(1) of the Principal Act
substitute--
15 "(1) A person who may be taken to and detained
in an interstate mental health facility under a
corresponding law may instead be made
subject to an involuntary treatment order or
community treatment order under this Act
20 and may be taken to an approved mental
health service for that purpose.".
(3) In the Principal Act--
(a) in section 93F(3)--
(i) in paragraph (a), omit "admission and";
25 (ii) in paragraph (b), for "section 9; and"
substitute "section 9.";
(iii) paragraph (c) is repealed;
(b) section 93G(1)(a) is repealed;
(c) for section 93G(3)(b) substitute--
30 "(b) otherwise, it must refuse to confirm the
transfer order.";
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(d) in section 93G(6), after "facility" insert "or
on being made subject to a corresponding
order";
Victorian Legislation and Parliamentary Documents
(e) for section 93G(7)(a) substitute--
5 "(a) a prescribed person; or";
(f) in section 93G(8), for "Sub-sections (5), (6)
and (7) of section 9 apply" substitute
"Section 9B applies".
(4) After section 93G(8) of the Principal Act insert--
10 "(9) This section does not apply to an involuntary
patient who is subject to a hospital transfer
order, an assessment order or a diagnosis,
assessment and treatment order.".
(5) For section 93H(1) of the Principal Act
15 substitute--
"(1) A person who is involuntarily detained in an
interstate mental health facility under a
corresponding law, or who is subject to a
corresponding order, may be--
20 (a) transferred to this State in accordance
with the corresponding law; and
(b) made subject to an involuntary
treatment order or community treatment
order; and
25 (c) taken to an approved mental health
service for that purpose, if necessary to
do so.".
(6) In the Principal Act--
(a) for section 93H(2)(a) substitute--
30 "(a) a prescribed person; or";
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(b) in section 93H(3)--
(i) in paragraph (b), for "section 9; and"
Victorian Legislation and Parliamentary Documents
substitute "section 9.";
(ii) paragraph (c) is repealed;
5 (c) for section 93K(1)(b) substitute--
"(b) a prescribed person; or";
(d) in section 93K(4), for "Sub-sections (5), (6)
and (7) of section 9 apply" substitute
"Section 9B applies";
10 (e) in section 93K(5) omit "admitted to and";
(f) at the foot of section 93K(5) insert--
"Note: A person detained under sub-section (5) is an
involuntary patient (see section 3(1)) and is to
be treated for his or her mental illness (see
15 section 12AD).";
(g) for section 93L(b) substitute--
"(b) a prescribed person; or".
27. Further consequential amendments
(1) In section 96(5) of the Principal Act, for "section
20 12" substitute "section 12AC".
(2) For section 106AB(1) of the Principal Act
substitute--
"(1) Despite anything to the contrary in Division
2 of Part 3, the chief psychiatrist, by written
25 notice, may direct that a person be made
subject to an involuntary treatment order
under section 12AA.".
(3) In section 106AB(3) of the Principal Act, for
"Section 12 applies" substitute "Sections 12AA
30 to 12AC apply".
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(4) For section 121(1) of the Principal Act
substitute--
Victorian Legislation and Parliamentary Documents
"(1) If it appears that any document relating to a
person becoming an involuntary patient is in
5 any respect incorrect or defective, the person
who signed the document may amend it
within 21 days after the person to whom it
relates becomes an involuntary patient.".
(5) In the Principal Act--
10 (a) in section 121--
(i) in sub-section (2), for "the admission of
an involuntary patient" substitute "a
person becoming an involuntary
patient";
15 (ii) in sub-section (3), for "on which an
involuntary patient has been admitted
to an approved mental health service"
substitute "relating to a person
becoming an involuntary patient";
20 (b) in section 123--
(i) in sub-section (1), after "in connection
with" insert "the making of an
involuntary treatment order or";
(ii) in sub-section (2), after "A person may
25 be" insert "made subject to an
involuntary treatment order or";
(c) in section 124(1), 125 and 126(1) and (2),
after "in connection with" insert "the making
of an involuntary treatment order or";
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(d) for section 132(1)(a) substitute--
"(a) the person is absent from an approved
Victorian Legislation and Parliamentary Documents
mental health service in accordance
with section 40 or 41 or is subject to a
5 community treatment order or restricted
community treatment order; or".
28. Transitional provisions
At the end of section 149 of the Principal Act
insert--
10 '(2) A person who, immediately before the
commencement day, was detained in an
approved mental health service under
section 12 (as in force at that time) is to be
taken, on and after the commencement day,
15 to have been placed on an involuntary
treatment order at the time the person was
admitted to the approved mental health
service.
(3) A person who, immediately before the
20 commencement day, was subject to a
hospital order made under section 16(3)(a)
(as in force at that time) is taken, on and after
the commencement day, to be subject to a
hospital transfer order under section 16(3)(a)
25 as substituted by section 16(2) of the
amending Act.
(4) A person who, immediately before the
commencement day, was subject to a
restricted hospital order made under section
30 16(3)(b) (as in force at that time) is taken, on
and after the commencement day, to be
subject to a restricted hospital transfer order
under section 16(3)(b) as substituted by
section 16(2) of the amending Act.
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(5) A reference in any instrument to a hospital
order made under section 16(3)(a) or a
restricted hospital order made under section
Victorian Legislation and Parliamentary Documents
16(3)(b) is taken, in relation to anything
5 occurring on or after the commencement
day, to be a reference respectively to a
hospital transfer order or restricted hospital
transfer order.
(6) Section 19A (treatment plans) applies in
10 respect of a patient, whether he or she
became a patient before, on or after the
commencement day and, if he or she became
a patient before the commencement day, the
treatment plan must be prepared within
15 6 months after that day.
(7) For the period of 6 months after the
commencement day, section 35A (review of
treatment plans) does not apply on an appeal
or review for a person who became a patient
20 before the commencement day unless a
treatment plan has been prepared for the
patient.
(8) In this section--
"amending Act" means the Mental Health
25 (Amendment) Act 2003;
"commencement day" means the day on
which section 28 of the amending Act
comes into operation.'.
__________________
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Part 3--Confidentiality and Other Amendments
s. 29
PART 3--CONFIDENTIALITY AND OTHER AMENDMENTS
Victorian Legislation and Parliamentary Documents
29. Definition
In section 3(1) of the Principal Act, for the
definition of "approved mental health service"
5 substitute--
' "approved mental health service" means
premises or a service--
(a) proclaimed to be an approved mental
health service under section 94,
10 including the Victorian Institute of
Forensic Mental Health; or
(b) declared to be an approved mental
health service under section 94A;'.
30. Secrecy provision--staff of Boards
15 In the Principal Act--
(a) in section 35(1)(a), after "Board" insert "or
member of staff of the Board";
(b) in section 63(1)(a), after "Board" insert "or a
person employed or engaged to assist the
20 Psychosurgery Review Board".
31. Non-psychiatric treatment
In section 83(2) of the Principal Act, omit "in
writing".
32. New headings in Division 1 of Part 6
25 (1) For the heading to Division 1 of Part 6 of the
Principal Act substitute--
"Division 1--Approved Mental Health
Services".
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(2) Insert the following heading to section 94 of the
Principal Act--
Victorian Legislation and Parliamentary Documents
"Proclamation of approved mental health
services".
5 33. New section 94A inserted
After section 94 of the Principal Act insert--
"94A. Emergency declaration of approved
mental health services
(1) The Secretary, by notice published in the
10 Government Gazette, may declare--
(a) any premises (including part of any
building or place) at which treatment is
to be provided to patients; or
(b) any service through which treatment is
15 to be provided to patients--
to be an approved mental health service.
(2) The Secretary may make a declaration under
sub-section (1) only if he or she is satisfied
that an emergency exists and it is
20 impracticable in the circumstances for a
proclamation to be made under section 94.
(3) A declaration under this section has effect
for the period, not exceeding 7 days, stated
in the notice of declaration.".
25 34. New section 95 substituted
For section 95 of the Principal Act substitute--
"95. Appointment of registered medical
practitioners
The Secretary may employ or engage as
30 many registered medical practitioners as are
necessary for the purposes of this Act.".
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Part 3--Confidentiality and Other Amendments
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35. Confidentiality
(1) In section 120A(1) of the Principal Act--
Victorian Legislation and Parliamentary Documents
(a) insert the following definition--
' "public sector mental health service"
5 means--
(a) a relevant psychiatric service that
is--
(i) a public hospital,
denominational hospital or
10 privately-operated hospital
(within the meaning of the
Health Services Act 1988);
and
(ii) funded by the Secretary; or
15 (b) a relevant psychiatric service that
is declared, or to the extent that it
is declared, by an Order under
sub-section (1A) to be a public
sector mental health service;';
20 (b) in the definition of "relevant person", in
paragraph (d), for "employed in" substitute
"employed by or on behalf of";
(c) in the definition of "relevant psychiatric
service"--
25 (i) after "means" insert "a person or body
to the extent that he, she or it provides
or operates one or more of";
(ii) in paragraph (g), for "community health
service" substitute "community health
30 centre".
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(2) After section 120A(1) of the Principal Act
insert--
Victorian Legislation and Parliamentary Documents
"(1A) The Governor in Council may, by Order
published in the Government Gazette,
5 declare a relevant psychiatric service to be,
either wholly or to the extent specified in the
Order, a public sector mental health
service.".
(3) In section 120A(2) of the Principal Act, for
10 "patient in" substitute "patient of".
(4) After section 120A(2A) of the Principal Act
insert--
"(2B) Sub-section (2) does not apply to a person
(other than an independent contractor) who
15 is a relevant person in relation to a relevant
psychiatric service who gives information in
accordance with HPP2 of the Health Privacy
Principles in the Health Records Act 2001
to another person (other than an independent
20 contractor) who is a relevant person in
relation to that relevant psychiatric service.".
(5) In section 120A(3) of the Principal Act--
(a) in paragraph (c), for "patient in" substitute
"patient of";
25 (b) for paragraph (e)(ii) substitute--
"(ii) subject to the regulations (if any), by a
person engaged or employed by or on
behalf of a public sector mental health
service by means of an electronic
30 records system established and
maintained by the Secretary for the
purpose of enabling the sharing of
information between public sector
mental health services for the treatment
35 of persons with a mental disorder at any
time; or";
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(c) in paragraph (eb), for "services by, on behalf
of or at" substitute "services by or on behalf
of".
Victorian Legislation and Parliamentary Documents
(6) In section 120A(3B) of the Principal Act--
5 (a) in paragraph (a)--
(i) in sub-paragraph (i), for "an approved
mental health service" substitute "a
public sector mental health service";
(ii) in sub-paragraph (ii), for "at or by that
10 approved mental health service"
substitute "by that public sector mental
health service";
(b) after paragraph (a) insert--
"(ab) the use is by a person referred to in
15 paragraph (a)(i) of information
collected in accordance with
paragraph (a), being a use that is--
(i) necessary for the performance of
the person's duties or functions
20 with the public sector mental
health service; and
(ii) in accordance with HPP2 of the
Health Privacy Principles in the
Health Records Act 2001; or
25 (ac) the use is by the Secretary of
information collected in accordance
with sub-section (3)(e)(ii), being a use
that is--
(i) necessary for the performance of
30 the duties, powers or functions of
the Secretary under this Act; and
(ii) in accordance with HPP2 of the
Health Privacy Principles in the
Health Records Act 2001; or".
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36. New section 149 inserted
After section 148 of the Principal Act insert--
Victorian Legislation and Parliamentary Documents
"149. Transitional provisions--Mental Health
(Amendment) Act 2003
5 Clause 2(1)(a) of Schedule 3, as in force
immediately before the commencement of
section 37(3)(b) of the Mental Health
(Amendment) Act 2003, continues to apply
with respect to the person appointed as a
10 member of the Psychosurgery Review Board
under that clause until the expiry of that
person's current term of membership.".
37. Membership and procedure of Boards
(1) In Schedule 1 to the Principal Act, for
15 clause 2(1)(b) substitute--
"(b) holds office for the term, not exceeding 5 years,
specified in his or her instrument of appointment;
and".
(2) In Schedule 2 to the Principal Act, for
20 clause 1(1A)(a)(ii) and (iii) substitute--
"(ii) a review under section 30(3) (periodic review); or
(iii) a review under section 30(4) of the extension of a
community treatment order--".
(3) In the Principal Act--
25 (a) in clause 1(2)(a) of Schedule 2, for "barrister
and solicitor of the Supreme Court of not
less than eight years' standing" substitute
"person who has been admitted to legal
practice, whether in Victoria or elsewhere in
30 Australia, for not less than 5 years";
(b) for clause 2(1)(a) of Schedule 3 substitute--
"(a) a person who has been admitted to legal
practice, whether in Victoria or elsewhere in
Australia, for not less than 5 years; and";
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(c) for clause 4(1)(a) of Schedule 3 substitute--
"(a) holds office for the term, not exceeding 5 years,
Victorian Legislation and Parliamentary Documents
specified in his or her instrument of
appointment; and";
5 (d) clause 4(2) of Schedule 3 is repealed.
__________________
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Act No.
Part 4--Amendment of Coroners Act 1985
s. 38
PART 4--AMENDMENT OF CORONERS ACT 1985
Victorian Legislation and Parliamentary Documents
38. Reportable deaths under the Coroners Act 1985
See:
In section 3(1) of the Coroners Act 1985, in the Act No.
definition of "reportable death", after paragraph (i) 10257.
5 Reprint No. 4
insert-- as at
23 October
"(iaa) of a person who immediately before death 2002.
was a patient within the meaning of the LawToday:
www.dms.
Mental Health Act 1986 but was not a dpc.vic.
person held in care; or". gov.au
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Mental Health (Amendment) Act 2003
Act No.
Endnotes
ENDNOTES
Victorian Legislation and Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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