Victorian Consolidated Legislation

Mental Health Act 1986 - SCHEDULE 2

PROVISIONS WITH RESPECT TO THE PROCEDURE OF THE BOARD

1. Board to sit in divisions



(1) The jurisdiction, powers and duties conferred or imposed upon the Board
may be exercised by divisions of the Board.

(1A) A division consists of-

   (a)  in the case of-





   (i)  a review under section 93G(3) (interstate transfer); or

   (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-

either 1 member or 3 members selected by the President; or

   (b)  in any other case, 3 members selected by the President.

(1B) The size of a division in the case of a review referred to in subclause
(1A)(a) is to be determined by the President.







(2) In the case of a division consisting of 3 members-



   (a)  one member who is to be the chairperson of the division must be a
        person who has been admitted to legal practice, whether in Victoria or
        elsewhere in Australia, for not less than 5 years; and

   (b)  one member must be a registered medical practitioner who is a
        psychiatrist but not the authorized psychiatrist of any approved
        mental health service where the division is to sit; and



   (c)  one member must be a person appointed to the Board to represent the
        views and opinions of members of the community.

(2A) A division of 1 member must consist of a person having any 1 or more of
the qualifications set out in subclause (2)(a), (b) and (c).



(3) In selecting the members of a division of 3 members the President must
have regard to-

   (a)  the desirability of constituting divisions of both males and females
        and of different age groups; and

   (b)  the nature of the matter to be considered by that division; and

   (c)  the need for the members of that division to have appropriate
        knowledge and experience.

(4) The President may act as a member of a division, and, if the President
fulfils the requirements of subclause (2)(a) may act as the chairperson of a
division.

2. Procedure of divisions



(1) Unless clause 3 applies, a matter arising for determination by a division
is to be determined by a majority of votes of the members of the division.

(2) An act or decision of a division is not invalidated by reason only of a
defect or irregularity in the appointment of a member or in the selection of
that person as a member of a division or, in the case of a person appointed to
act as a member under clause 3 of Schedule 1, on the ground that the occasion
for so acting had not arisen or had ceased.

(3) Subject to this Act and the regulations, the procedure of a division is in
its discretion.

3. Determination of questions of law by divisions



(1) Where a question of law arises in proceedings before a division of 3
members the chairperson of that division must determine the question.

(2) Where a question of law arises in proceedings before a division of 1
member who is not eligible to act as a chairperson of a 3 member division, the
member must refer the question to a member who is eligible to act as a
chairperson of a 3 member division for determination.





4. Directions as to arrangement of business and procedure



(1) The President after consultation with the other members of the Board may
give directions as to-

   (a)  the arrangement of the business of the Board; and

   (b)  the procedure of the Board.

(2) The President may by instrument of delegation delegate to a member any
power or function of the President under this Act other than this power of
delegation.

5. Sittings of the Board



(1) The Board is to sit-

   (a)  at such times as the President determines; and

   (b)  at the approved mental health service where the patient is detained
        unless the President determines otherwise.



(2) The President may determine that there is to be a special sitting of the
Board in the case of an emergency.

5A. Powers of the Board

The Board has power to-

   (a)  order that any person who in the opinion of the Board ought to be a
        party in any proceedings be added as a party or substituted for a
        party; and

   (b)  order that any person who in the opinion of the Board is not a proper
        or a necessary party in any proceedings cease to be a party; and



   (c)  adjourn the hearing of any proceedings-

   (i)  to any time and place; and

   (ii) for any purpose; and

   (iii) on any terms as to costs or otherwise- as the Board considers
        necessary or just in the circumstances; and

   (d)  reserve its decision in any proceedings to a date to be advised by the
        Board; and

   (e)  make an order that operates at a date after the making of the order as
        is specified in the order.

6. Determination of the Board



(1) A determination of the Board must be in writing and signed by the member
or members of the Board who constituted the division that made the
determination.

(2) Where one or more of the members who constituted a division of 3 members
is or are unavailable for the purpose of signing a determination made by that
division, any other member or members of that division may sign the
determination and that determination has the same force and effect as if it
had been signed by all the members who constituted the division that made the
determination.

(3) The production in any proceedings of a document purporting to be a copy of
a determination made by the Board and purporting to be signed by a member or
members of the Board is conclusive evidence of the due making and existence of
the determination.





7. Power to amend determination

The Board may at any time of its own motion or on the application of any
person, make a determination correcting a determination made by the Board
where there is in the determination-

   (a)  a clerical mistake or an error arising from any accidental slip or
        omission; or

   (b)  any evident material miscalculation of figures or an evident material
        mistake in the description of any person, thing or property referred
        to in the determination.

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