Western Australia
Mental Health Act 1996
Western Australia
Mental Health Act 1996
CONTENTS
Part 1 — Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
4. Meaning of “mental illness” 5
5. Objects of Act 5
6. Objectives of persons performing certain functions 6
Part 2 — Administrative provisions
Division 1 — The Minister
7. Functions of the Minister 7
Division 2 — The Chief Psychiatrist
8. Chief Psychiatrist 8
9. Responsibilities of Chief Psychiatrist for psychiatric care 8
10. Other functions of Chief Psychiatrist 8
11. Chief Psychiatrist subject to CEO 9
12. Directions as to treatment 9
13. Powers of inspection 10
14. Offences 11
15. Chief Psychiatrist may order that patient be allowed to be visited 12
16. Delegation by Chief Psychiatrist 12
Division 3 — Psychiatrists and authorised practitioners
17. Register of psychiatrists 13
18. Authorised medical practitioners 13
19. Mental health practitioners 14
20. Authorised mental health practitioners 14
Division 4 — Authorised hospitals
21. Authorisation of hospitals 15
Division 5 — The Registrar
22. Registrar and staff of Board 16
23. President may give Registrar directions 16
24. Functions of Registrar 16
25. Delegation to Registrar 17
Part 3 — Involuntary patients
Division 1 — Becoming an involuntary patient
Subdivision 1 — Criteria
26. Persons who should be involuntary patients 18
27. Application to mentally impaired accused 19
Subdivision 2 — Referral for examination
28. Term used in this Subdivision 19
29. Referral for examination by a psychiatrist 19
30. Referral of voluntary patients in certain circumstances 19
31. No referral without personal examination 20
32. Time limit 21
33. Form of referral 21
34. Police assistance 21
35. Operation of transport order 22
Subdivision 3 — Examination in an authorised hospital
36. Detention for examination 23
37. Choices upon examination 23
Subdivision 4 — Examination otherwise than in an authorised hospital
38. Time limit 24
39. Choices upon examination 24
40. Reception into hospital 24
41. Police assistance 25
42. Operation of transport order 25
Subdivision 5 — Involuntary status
43. Order giving involuntary status 26
44. Mentally Impaired Accused Review Board to be notified in certain cases 26
Division 2 — Detention in authorised hospital
Subdivision 1 — Place of detention
45. Hospital in which a person is to be detained 27
46. Transfer 27
47. Person in charge of hospital may decline to accept 27
Subdivision 2 — Period of detention
48. Initial period 28
49. Examination within 28 days 28
50. Subsequent examinations within 6 months 29
51. Effect of order continuing detention 29
52. Order for release may be made at any time 29
53. Saving 30
Subdivision 3 — Release from detention
54. Release when period of detention ends 30
55. When person to be returned to custody 30
56. Examination of prisoner about to be discharged 31
Subdivision 4 — Absence without leave
57. Absence without leave 31
58. Apprehension of person absent without leave 31
Subdivision 5 — Leave of absence
59. Grant of leave 33
60. Cancellation of leave 33
61. Status of patient on leave of absence 34
62. Monitoring of patient on leave 34
63. Release on advice of practitioner while patient on leave 34
64. Saving 35
Division 3 — Treatment of involuntary patient in the community
Subdivision 1 — Making community treatment order
65. No detention without consideration of community treatment35
66. When a community treatment order may be made 35
67. General power to make a community treatment order 36
68. Terms of community treatment order 36
69. Order to be confirmed 37
70. Revocation of a community treatment order 37
71. Police assistance 38
72. Carrying out of transport order 38
Subdivision 2 — Operation of community treatment order
73. Duration of community treatment order 39
74. The supervising psychiatrist 39
75. Review by supervising psychiatrist 39
76. Extension of community treatment order 40
77. Supervising psychiatrist may act on authorised medical practitioner’s report 41
78. Person may be discharged from involuntary status 41
79. Variation of order 41
Subdivision 3 — Breach of community treatment order
80. What constitutes breach of order 42
81. Action following breach 42
82. Action where breach continues 43
83. Treatment may be given without consent 43
84. Police assistance 43
85. Power of revocation not affected 44
Part 4 — Interstate movements
86. Term used in this Part 45
87. Agreements 45
88. Best interests of person to be considered 45
89. Persons apprehended 46
90. Referral for examination 46
91. Transfer to another jurisdiction 46
Part 5 — Treatment of patients
Division 1 — General
92. Terms used in this Part 47
93. Treatment of persons on remand 47
94. Mentally Impaired Accused Review Board to be notified of treatment of mentally impaired accused47
Division 2 — Informed consent
95. Requirements for informed consent 48
96. Capacity to give informed consent 48
97. Explanation to be given 48
98. Sufficient time to be given 49
Division 3 — Prohibited treatment
99. Offence to administer certain treatment 49
Division 4 — Psychosurgery
100. Meaning of “psychosurgery” 50
101. Prerequisites to psychosurgery 50
102. Applications for approval to perform psychosurgery 51
103. Board must satisfy itself of certain matters 51
Division 5 — Electroconvulsive therapy
Subdivision 1 — Involuntary patients and mentally impaired accused
104. Prerequisites 52
105. Matters for consideration by psychiatrist 52
106. Reference to Board 53
Subdivision 2 — Other patients
107. Informed consent required 53
Division 6 — Other treatment, involuntary patients and mentally impaired accused
108. Meaning of “psychiatric treatment” in this Division 54
109. Consent not required for psychiatric treatment 54
110. Medical treatment may be approved by the Chief Psychiatrist 54
111. Opinion of another psychiatrist may be requested 55
112. Further remedy where person dissatisfied 55
Division 7 — Emergency psychiatric treatment
113. Term used in this Division 56
114. Consent or approval dispensed with 56
115. Duties of person giving emergency treatment 57
Division 8 — Seclusion of patients
116. Term used in this Division 57
117. Seclusion only allowed at authorised hospital 57
118. Seclusion must be authorised 58
119. Giving of authorisation 58
120. Special duties where patient kept in seclusion 59
Division 9 — Mechanical bodily restraint
121. Term used in this Division 59
122. Mechanical bodily restraint must be authorised 59
123. Giving of authorisation 60
124. Use of restraint to be reported to Board 60
Part 6 — Mental Health Review Board
Division 1 — Establishment and administration
Subdivision 1 — Establishment
125. Establishment of Mental Health Review Board 61
126. Members of Board 61
127. Panel for psychosurgery matters 61
128. Certain provisions concerning members 62
Subdivision 2 — How Board to be constituted
129. Constitution of Board, general functions 62
130. Constitution of Board, psychosurgical matters 63
131. Concurrent sittings 63
Subdivision 3 — Procedure
132. Meetings 64
133. Telephone and video meetings 64
134. Resolution may be passed without meeting 65
135. Proceedings before Board 65
136. Public access to Board’s records 65
Division 2 — Reviews and enquiries
137. Matters to be considered upon review 65
138. Initial review 65
139. Periodic reviews 66
140. Determination of whether person has been continuously an involuntary patient 66
141. Time of review may be extended in certain cases 66
142. Application for review by Mental Health Review Board 67
143. Order may be suspended pending review 68
144. Review by Board of its own motion 68
145. Powers on carrying out review 68
146. Complaints 69
147. Enquiries directed by Minister 69
148. Reports to Minister 69
Division 2A — Applications to State Administrative Tribunal
148A. Application for review 69
148B. Constitution of State Administrative Tribunal, generally 70
148C. Constitution of State Administrative Tribunal, psychosurgical matters 70
148D. Proceeding before State Administrative Tribunal 71
148E. Application for determination of question of law 71
Division 3 — Appeal from State Administrative Tribunal
149. Appeal 71
150. Grounds of appeal 72
151. Time for appeal 72
152. Person to whom order relates to be legally represented 72
Part 7 — Protection of patients’ rights
Division 1 — Patients’ rights generally
156. Explanation of rights to be given 74
157. Copy of explanation to be given to another person 74
158. Responsibility for giving explanation etc. 75
159. Affected person to be given copy of order 75
160. Access to personal records 76
161. Exceptions to section 160 76
162. Offence of ill‑treatment 77
Division 2 — Further rights of in‑patients
163. Term used in this Division 77
164. Patient to be afforded interview 78
165. Personal possessions 78
166. Letters of patients and other postal articles 79
167. Access to telephone 79
168. Visitors 79
169. Restriction or denial of entitlement 79
170. Application to Board 80
171. Restriction or denial of right to be reported on review 80
Part 8 — Community support services
172. Terms used in this Part 81
173. Power of CEO to allocate funds 81
174. Funding and services agreements 81
Part 9 — Council of Official Visitors
Division 1 — Administrative and procedural provisions
175. Terms used in this Part 83
176. Establishment of Council of Official Visitors 83
177. Members of Council of Official Visitors 84
178. Disqualification 84
179. Term of office 84
180. Remuneration and allowances 85
181. Meetings 85
182. Executive officer and other staff 85
183. Minutes to be kept 86
184. Public access to Council’s records 86
185. Delegation 86
Division 2 — Functions
186. Functions of the Council of Official Visitors 86
187. Panels 87
188. Functions of an official visitor 87
189. Request for visit 88
190. Powers of an official visitor 88
191. Offences 89
192. Reports 89
Part 10 — Miscellaneous
Division 1 — Restrictions on authority of practitioners
193. Terms used in section 194 91
194. When practitioner not to act 92
Division 2 — Police powers
195. Taking mentally ill person into protective custody 92
196. Police officer may have arrested person examined 93
197. Further powers of police when apprehending 93
198. What may be seized under section 197 94
199. Disposal of things seized 94
200. Use of reasonable force 94
Division 3 — Capacity to vote
201. Determination of capacity to vote 94
202. Chief Psychiatrist to notify Electoral Commissioner 95
203. Application to Board 96
Division 4 — Records and information
204. Records 96
205. Access to certain information about patient 97
206. Confidentiality 97
Division 5 — Inquiries
207. Minister may appoint person to inquire 98
208. Powers of person conducting inquiry 98
209. How inquiry to be conducted 99
210. Offences in relation to inquiry 99
Division 6 — General
211. Offence of obstructing the performance of functions 100
212. Amendment of certain documents 100
213. Protection from liability 101
214. Regulations 101
215. Review 102
Schedule 1 — Provisions concerning members of Board
1. Term of office 103
2. Remuneration and allowances 103
Schedule 2 — Provisions concerning proceedings before Board
1. Notice of hearing 104
2. Right to be heard 104
3. Representation 104
4. Power to compel attendance etc. 105
5. No privilege against self‑incrimination 105
6. Evidence or findings from other proceedings 106
7. Board to avoid technicalities 106
8. Board not bound by rules of evidence 106
9. Vexatious proceedings 106
10. Each party to bear own costs 106
11. Offences 107
12. Closed hearings 107
13. Suppression of publication 107
14. Record of proceedings 109
15. Reasons to be given 109
16. Effect to be given to decision or order 109
Schedule 2A — Provisions concerning a proceeding before the State Administrative Tribunal
1. Representation 110
2. Closed hearings 110
3. Suppression of publication 110
Schedule 3 — When an official visitor has a disqualifying interest
1. Financial interests 113
2. Closely associated persons 113
Notes
Compilation table 114
Western Australia
Mental Health Act 1996
An Act to provide for the care, treatment, and protection of persons who have mental illnesses, and for related purposes.
Part 1 — Preliminary
1. Short title
This Act may be cited as the Mental Health Act 1996 1.
2. Commencement
(1) Subject to subsection (2), this Act comes into operation on such day as is fixed by proclamation 1.
(2) If this Act has not come into operation under subsection (1) before the first anniversary of the day on which it receives the Royal Assent, it comes into operation on that anniversary 1.
3.
In this Act, unless the contrary intention appears —
authorised hospital means —
(a) a public hospital, or part of a public hospital, that is for the time being authorised under section 21; and
(b) a private hospital whose licence is endorsed under section 26DA of the Hospitals and Health Services Act 1927;
authorised medical practitioner means a person designated under section 18 as an authorised medical practitioner;
authorised mental health practitioner means a person designated under section 20 as an authorised mental health practitioner;
Board means the Mental Health Review Board;
CEO has the meaning given by section 3 of the Health Legislation Administration Act 1984;
Chief Psychiatrist has the meaning given by section 8;
community, in relation to a person who is confined within a restricted community, is a reference to that restricted community;
community treatment order means an order of the kind provided for by Division 3 of Part 3;
Council of Official Visitors means the Council of Official Visitors established under section 176;
department means the department of the Public Service principally assisting the Minister in the administration of this Act;
document includes any means of storing or recording information;
hospital means a public hospital or private hospital;
inspect, in relation to a document, includes to have the use of any process reasonably required for the purpose of viewing, hearing, or otherwise obtaining the information in the document;
involuntary patient means a person who is for the time being the subject of —
(a) an order under section 43(2)(a), 49(3)(a), 50 or 70(1) for detention of the person in an authorised hospital as an involuntary patient; or
(b) a community treatment order;
lawyer means an Australian lawyer within the meaning of that term in the Legal Profession Act 2008 section 3;
legal practitioner means an Australian legal practitioner within the meaning of that term in the Legal Profession Act 2008 section 3;
medical practitioner has the meaning given to that term in the Medical Practitioners Act 2008 section 4;
mental health practitioner has the meaning given by section 19;
Mental Health Review Board means the board established by section 125;
mental illness has the meaning given by section 4;
mentally impaired accused has the same meaning as in Part 5 of the Criminal Law (Mentally Impaired Accused) Act 1996;
Mentally Impaired Accused Review Board means the Board established under Part 6 of the Criminal Law (Mentally Impaired Accused) Act 1996;
official visitor means a member of the Council of Official Visitors;
patient means a person receiving psychiatric treatment;
President means president of the Mental Health Review Board;
prison has the same meaning as in the Prisons Act 1981;
private hospital means premises at which a person is licensed under the Hospitals and Health Services Act 1927 to conduct a private hospital;
psychiatrist means a medical practitioner whose name is contained in a register of psychiatrists prepared and maintained under section 17 by the Medical Board;
psychiatric treatment means treatment for mental illness;
psychologist has the meaning given to that term in section 3 of the Psychologists Act 2005;
public hospital means premises that are a public hospital as defined in the Hospitals and Health Services Act 1927;
Registrar means the Registrar of the Board appointed in accordance with section 22;
relative means spouse, de facto partner, parent, grandparent, child, sibling, uncle, or aunt, whether by the whole or half‑blood or marriage or a relationship established by written law;
senior mental health practitioner means a mental health practitioner with at least 5 years experience in the treatment of persons who have mental illnesses;
superintendent has, in relation to a prison, the same meaning as in the Prisons Act 1981;
supervising psychiatrist means the psychiatrist responsible for supervising the carrying out of a community treatment order;
treating practitioner means the medical practitioner or mental health practitioner responsible for ensuring that the treatment plan specified in a community treatment order is carried out;
treating psychiatrist, in relation to a patient, means the psychiatrist for the time being in charge of the treatment of the patient;
treatment in the community means treatment other than as an in‑patient of a hospital.
[Section 3 amended by No. 28 of 2003 s. 136; No. 65 of 2003 s. 51(2); No. 84 of 2004 s. 82; No. 28 of 2005 s. 108; No. 28 of 2006 s. 274; No. 21 of 2008 s. 680(2); No. 22 of 2008 s. 162.]
4. Meaning of “mental illness”
(1) For the purposes of this Act a person has a mental illness if the person suffers from a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent.
(2) However a person does not have a mental illness by reason only of one or more of the following, that is, that the person —
(a) holds, or refuses to hold, a particular religious, philosophical, or political belief or opinion;
(b) is sexually promiscuous, or has a particular sexual preference;
(c) engages in immoral or indecent conduct;
(d) has an intellectual disability;
(e) takes drugs or alcohol;
(f) demonstrates anti‑social behaviour.
5. Objects of Act
The objects of this Act include —
(a) to ensure that persons having a mental illness receive the best care and treatment with the least restriction of their freedom and the least interference with their rights and dignity;
(b) to ensure the proper protection of patients as well as the public; and
(c) to minimize the adverse effects of mental illness on family life.
6. Objectives of persons performing certain functions
(1) This section applies to —
(a) the Minister in relation to the performance of his or her functions under this Act;
(b) any officer of the department performing any function, under this Act or otherwise, in relation to the care or treatment of persons who have mental illnesses; and
(c) any other person performing a function under this Act.
(2) A person to whom this section applies is to seek to ensure that the objects of this Act are achieved so far as it is relevant to the performance of his or her functions under this Act.
Part 2 — Administrative provisions
Division 1 — The Minister
7. Functions of the Minister
It is a function of the Minister —
(a) to promote the development and co‑ordination of services for the care and treatment of persons who have mental illnesses;
(b) to promote the integration of, and co‑operation between, health and welfare services at State, regional, and local levels;
(c) to encourage the development within the community of services emphasizing —
(i) the prevention of mental illness; and
(ii) the early detection and treatment of mental illness;
(d) to promote the development of voluntary and self‑help groups and other community agencies for assisting persons who have mental illnesses and their families;
(e) to encourage the carrying out of research into mental illnesses;
(f) to ensure that the special needs and views of groups within the community are sought by consultation with particular reference to —
(i) persons who have or have had mental illnesses;
(ii) groups and agencies referred to in paragraph (d); and
(iii) ethnic groups;
(g) to ensure that services for the treatment and care of persons having a mental illness are comprehensive, readily accessible, and sensitive to cultural diversity;
(h) to promote high standards of education and training for, and accountability of, persons providing care to persons who have mental illnesses;
(i) to ensure that information about mental health and mental illness is made available and to promote public awareness about mental health and mental illness; and
(j) to encourage the development of advocacy services to facilitate the work of the Mental Health Review Board and the official visitors.
Division 2 — The Chief Psychiatrist
8. Chief Psychiatrist
References in this Act to the Chief Psychiatrist are to the person appointed as such under section 6(1)(d) of the Health Legislation Administration Act 1984.
9. Responsibilities of Chief Psychiatrist for psychiatric care
(1) The Chief Psychiatrist has responsibility for the medical care and welfare of all involuntary patients.
(2) In respect of other patients, the Chief Psychiatrist is required to monitor the standards of psychiatric care provided throughout the State.
10. Other functions of Chief Psychiatrist
The other functions of the Chief Psychiatrist are —
(a) to assist the CEO to prepare, keep under review, and carry out, a strategic plan for the administration of mental health services for the State;
(b) to keep —
(i) a register of authorised hospitals;
(ii) a register of authorised medical practitioners; and
(iii) a register of authorised mental health practitioners;
(c) in relation to medication used in psychiatry, to ensure that there is an appropriate system in place for —
(i) the maintenance of satisfactory standards; and
(ii) the provision of information to medical practitioners about new developments including new information about adverse drug reactions;
(d) to report to the Mental Health Review Board on matters concerning the medical care or welfare of involuntary patients; and
(e) to advise the CEO of recommendations that the Chief Psychiatrist considers it would be appropriate for the CEO to make to the Minister.
[Section 10 amended by No. 28 of 2006 s. 275.]
11. Chief Psychiatrist subject to
In performing his or her functions the Chief Psychiatrist is subject to the general direction and control of the CEO.
[Section 11 amended by No. 28 of 2006 s. 275.]
12. Directions as to treatment
(1) The Chief Psychiatrist may at any time —
(a) review any decision of a psychiatrist as to the treatment of any involuntary patient; and
(b) vary or rescind the decision or substitute another decision for it.
(2) A psychiatrist is to comply with any instruction given to him or her by the Chief Psychiatrist in exercise of the powers in subsection (1).
(3) Nothing in this section —
(a) limits the operation of Part 5; or
(b) takes away from any requirement under that Part or any other law for the obtaining of a person’s consent to treatment.
13. Powers of inspection
(1) The powers in this section may be exercised —
(a) in respect of relevant premises that are not an authorised hospital, only if the Chief Psychiatrist believes on reasonable grounds that proper standards of care or treatment are not being, or have not been, observed in a psychiatric health service carried on in those premises; and
(b) in respect of any relevant premises that are an authorised hospital, as the Chief Psychiatrist thinks appropriate.
(2) Subject to subsection (1), the Chief Psychiatrist may at any time visit any relevant premises whether or not notice of the visit has been given.
(3) In the course of a visit the Chief Psychiatrist may, subject to subsection (4) —
(a) inspect any part of the relevant premises;
(b) interview any person who is in the relevant premises for care or treatment;
(c) require persons on the relevant premises to answer questions relating to the care or treatment of persons at the premises;
(d) require the production of and inspect any medical record or other document relating to persons who are or have been receiving care or treatment at the relevant premises; and
(e) take copies of or extracts from any such record or document.
(4) The powers in subsection (3)(b), (c), (d) and (e) may be exercised —
(a) in relation to an involuntary patient, without restriction; but
(b) in relation to any other person, only with the person’s consent.
(5) A person having any official capacity at the relevant premises is to —
(a) afford any assistance that may be requested for the purpose of exercising a power under this section; and
(b) answer any question that may be asked under this section by the Chief Psychiatrist.
(6) In this section —
psychiatric health service means any health service that provides specialized psychiatric care or treatment to persons suffering from mental illness and does so either as its sole activity or as a significant part of its activities;
relevant premises means premises that are used for carrying on a psychiatric health service.
14. Offences
(1) A person must not —
(a) fail without reasonable excuse, proof of which lies upon that person —
(i) to answer any question; or
(ii) to produce any document,
as required under section 13(3);
(b) in answer to any question asked under section 13(3), give any answer or other information knowing it to be false or misleading in a material particular;
(c) fail without reasonable excuse (proof of which lies upon that person) to give any assistance as required under section 13(5); or
(d) obstruct or hinder a person carrying out a function under section 13.
Penalty: $2 000.
(2) A person is not excused from answering any question, or from producing any document, as required under section 13(3) on the ground that the answer to a question or the contents of a document might tend to incriminate the person or render the person liable to a penalty.
(3) However, the answer or the fact that the document or the thing was produced is not admissible in evidence against the person in any civil or criminal proceedings other than proceedings for perjury or for an offence under this section arising out of the false or misleading nature of the answer.
15. Chief Psychiatrist may order that patient be allowed to be visited
The Chief Psychiatrist may, in writing, direct the person in charge of any place where a patient is detained to allow a person specified in the direction to visit the patient, subject to such conditions, if any, as may be specified in the direction.
16. Delegation by Chief Psychiatrist
The Chief Psychiatrist may, by a signed instrument of delegation, delegate to another psychiatrist in the department, either generally or as otherwise provided in the instrument, any function under this Act, other than this power of delegation.
Division 3 — Psychiatrists and authorised practitioners
17. Register of psychiatrists
(1) The Medical Board of Western Australia established under the Medical Practitioners Act 2008 is to prepare and maintain, for the purposes of this Act, a register of psychiatrists.
(2) The register is to contain the names of every medical practitioner practising in the State who —
(a) has made a special study of, or who has gained and maintained special skill in the practice of, psychiatry; and
(b) is recognized by the Medical Board as a specialist in psychiatry.
(3) Where the Medical Board is of the opinion that a medical practitioner whose name is contained in the register has ceased to be a specialist in psychiatry, the Board is to remove his or her name from that register.
[Section 17 amended by No. 22 of 2008 s. 162.]
18. Authorised medical practitioners
(1) The Chief Psychiatrist may, by order published in the Gazette —
(a) designate any medical practitioner as an authorised medical practitioner for the purposes of section 77; and
(b) revoke a person’s designation as an authorised medical practitioner.
(2) The Chief Psychiatrist is not to designate a medical practitioner under subsection (1) unless he or she is satisfied that the practitioner has the skills and experience necessary for the effective performance of the functions of an authorised medical practitioner under section 77.
19. Mental health practitioners
(1) For the purposes of this Act a person is a mental health practitioner if he or she is —
(a) a psychologist;
(b) a person registered as —
(i) a nurse under the Nurses and Midwives Act 2006; or
(ii) an occupational therapist under the Occupational Therapists Act 2005;
or
(c) a person with another recognized qualification,
and has at least 3 years’ experience in the management of persons who have mental illnesses.
(2) The Chief Psychiatrist may from time to time determine that —
(a) a degree awarded by an Australian university upon the completion of a course in social work; or
(b) another qualification considered by the Chief Psychiatrist to be at least equivalent to a degree described in paragraph (a),
is a recognized qualification for the purposes of subsection (1)(c).
(3) The Chief Psychiatrist may revoke or amend a determination under subsection (2).
[Section 19 amended by No. 42 of 2005 s. 109; No. 50 of 2006 s. 114.]
20. Authorised mental health practitioners
(1) The Chief Psychiatrist may, by order published in the Gazette —
(a) designate as an authorised mental health practitioner any mental health practitioner who in the opinion of the Chief Psychiatrist has qualifications, training and experience appropriate for the performance of the functions vested in an authorised mental health practitioner by sections 29 and 63;
(b) revoke any such designation.
(2) An order under subsection (1) may specify limits within which the person may perform the functions vested in a mental health practitioner by sections 29 and 63.
(3) The Chief Psychiatrist may, by order published in the Gazette, vary any limits specified under subsection (2).
(4) The regulations may make provision as to —
(a) qualifications, training, and experience that the Chief Psychiatrist is to regard as appropriate for the purposes of subsection (1)(a);
(b) the performance by authorised mental health practitioners of their functions;
(c) any notifications required to be given by authorised mental health practitioners to the Chief Psychiatrist; and
(d) grounds on which a person’s designation as an authorised mental health practitioner may be revoked.
Division 4 — Authorised hospitals
21. Authorisation of hospitals
(1) The Governor may by order published in the Gazette —
(a) authorise a public hospital, or part of a public hospital, for —
(i) the reception of persons; and
(ii) the admission of persons as involuntary patients,
under this Act; and
(b) revoke or amend an order so made.
(2) If a place ceases to be an authorised hospital because an order is revoked, every person received into, or admitted as an involuntary patient to, the authorised hospital is to be transferred in accordance with the regulations to another authorised hospital.
Division 5 — The Registrar
22. Registrar and staff of Board
There are to be appointed under and subject to Part 3 of the Public Sector Management Act 1994 —
(a) a Registrar of the Mental Health Review Board; and
(b) such other officers as are necessary to assist with the performance of the Registrar’s functions under this Act.
23. President may give Registrar directions
The President may from time to time give directions to the Registrar with respect to the performance of any of the Registrar’s functions under this Act, either generally or with respect to a particular matter, and the Registrar is to give effect to any such direction.
24. Functions of Registrar
Without limiting any other function given or delegated to the Registrar under this Act, it is the function of the Registrar —
(a) to keep, in accordance with the regulations, particulars of every involuntary patient;
(b) to ensure that any review required by this Act to be carried out in respect of a person by the Board is brought before the Board at an appropriate time;
(c) to receive any notice, report, or other thing that is to be given to the Board and arrange for it to be dealt with as soon as is practicable;
(d) to ensure that any notice, report, or other thing that is to be given by the Board is given in accordance with this Act and as soon as is practicable;
(e) to keep a record of applications made to, and notices given to or by, the Board;
(f) to cause to be made, and keep, accurate minutes of proceedings at meetings of the Board;
(g) to keep a record of decisions of the Board and keep copies of the reasons given for those decisions; and
(h) generally to be the executive officer of the Board.
25. Delegation to Registrar
The Board may delegate to the Registrar, either generally or as otherwise provided in the delegation, any function under this Act that the regulations provide may be delegated under this subsection, other than this power of delegation.
Part 3 — Involuntary patients
Division 1 — Becoming an involuntary patient
Subdivision 1 — Criteria
26. Persons who should be involuntary patients
(1) A person should be an involuntary patient only if —
(a) the person has a mental illness requiring treatment;
(b) the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order —
(i) to protect the health or safety of that person or any other person;
(ii) to protect the person from self‑inflicted harm of a kind described in subsection (2); or
(iii) to prevent the person doing serious damage to any property;
(c) the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and
(d) the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.
(2) The kinds of self‑inflicted harm from which a person may be protected by making the person an involuntary patient are —
(a) serious financial harm;
(b) lasting or irreparable harm to any important personal relationship resulting from damage to the reputation of the person among those with whom the person has such relationships; and
(c) serious damage to the reputation of the person.
27. Application to mentally impaired
(1) Despite section 26, a person is not to be made an involuntary patient at any time after a custody order is made under the Criminal Law (Mentally Impaired Accused) Act 1996 and before the person is released by the Governor under that Act.
(2) However, a mentally impaired accused who under that Act is released by the Governor on conditions may be made an involuntary patient.
[Section 27 amended by No. 84 of 2004 s. 82.]
Subdivision 2 — Referral for examination
28.
In this Subdivision —
referrer means a medical practitioner or an authorised mental health practitioner who refers a person under section 29.
29. Referral for examination by a psychiatrist
(1) Subject to section 194, a medical practitioner or an authorised mental health practitioner who suspects on reasonable grounds that a person should be made an involuntary patient may refer the person for examination by a psychiatrist.
(2) The referral is to be for examination either —
(a) in an authorised hospital; or
(b) at some other place where to the knowledge of the referrer the examination can be carried out,
as determined by the referrer.
30. Referral of voluntary patients in certain circumstances
(1) The application of section 29 extends to a case where a person who is a patient at an authorised hospital, other than an involuntary patient or a mentally impaired accused, seeks to be discharged from the hospital and a psychiatrist is not available to examine the person.
(2) Despite section 29, the referral may only be made for examination in the hospital in which the person is a patient.
(3) If a senior mental health practitioner suspects on reasonable grounds that the person should be examined for the purposes of section 29 he or she may in writing order that the person be detained at the hospital for up to 6 hours from the time when the person seeks to be discharged.
(4) Section 36 does not apply when a person is referred by operation of this section.
(5) Section 37 applies when a person is referred by operation of this section as if —
(a) in subsection (1) the passage “received into an authorised hospital under section 36” were omitted; and
(b) in subsection (2) the words “after the person was received into the hospital” were replaced by the words “from the time when the referral was made”.
(6) An examination following a referral to which this section applies is not to be made by the psychiatrist who is the treating psychiatrist of the person at the time of the referral.
[Section 30 amended by No. 84 of 2004 s. 82.]
31. No referral without personal examination
(1) A referrer is not to refer a person under section 29 without having first personally examined the person for the purpose of forming an opinion as to whether it is suspected that the person should be made an involuntary patient.
(2) However, facts communicated to the referrer, although not of themselves sufficient grounds for suspecting that a person should be made an involuntary patient, may be considered in forming the opinion.
32. Time limit
A referrer is not to refer a person under section 29 if a period of more than 48 hours has elapsed since the referrer personally examined the person.
33. Form of referral
A referral is to be in writing and is to —
(a) specify the day and time when the referral was made;
(b) specify the day and time when the person referred was personally examined as required by section 31;
(c) certify that, having regard to section 26, the referrer suspects that the person should be made an involuntary patient;
(d) specify —
(i) the authorised hospital; or
(ii) the other place,
at which the person referred is to be examined by a psychiatrist;
(e) specify the facts on the basis of which it is suspected that the person should be made an involuntary patient; and
(f) distinguish from the facts known because of personal observation by the referrer, any of the facts which have been communicated to the referrer.
34. Police assistance
(1) If the person is not in police custody the referrer may make a written order (a transport order) authorising a police officer to —
(a) apprehend the person; and
(b) take him or her to the examination.
(2) A transport order is not to be made unless —
(a) the condition of the person is such that assistance is required to take the person to the examination and no suitable alternative is available; and
(b) not more than 7 days have elapsed since the referral was made.
(3) A transport order is to specify the day and time when it was made.
35. Operation of transport order
(1) A person apprehended under a transport order is to be taken to the authorised hospital or other place specified in the referral as soon as is practicable but in any event before the order lapses under subsection (3).
(2) The person may be detained under a transport order —
(a) until the order lapses; or
(b) until the person is received into an authorised hospital under section 36,
whichever is first.
(3) A transport order lapses —
(a) on the expiry of the relevant period after it was made; or
(b) at the end of the 7th day after the referral was made,
whichever is sooner, regardless of whether or not the person has been taken to the examination or has been apprehended.
(4) The relevant period for the purposes of subsection (3) is —
(a) where section 29(2)(a) applies, 72 hours; and
(b) where section 29(2)(b) applies, 24 hours.
Subdivision 3 — Examination in an authorised hospital
36. Detention for examination
(1) A person who is referred under section 29 for examination by a psychiatrist in an authorised hospital —
(a) is to be received into the hospital; and
(b) may be detained there for up to 24 hours from the time of reception.
(2) A person is not to be so received if more than 7 days have elapsed since the referral was made.
(3) Being received into an authorised hospital under this section is not admission to the hospital for the purposes of this Act.
(4) If the person has not been examined by a psychiatrist within the period specified in subsection (1)(b), the person may not be detained any longer.
37. Choices upon examination
(1) A psychiatrist who examines a person received into an authorised hospital under section 36 may —
(a) make an order under section 43;
(b) order that the person’s detention continue for further assessment of whether an order should be made under section 43; or
(c) decide not to make an order under this Act.
(2) An order under subsection (1)(b) is to specify the day and time when it was made and the end of the period during which the person may be detained, which is to be not later than 72 hours after the person was received into the hospital.
(3) An order under subsection (1)(b) authorises the detention of the person in respect of whom it is made —
(a) until the end of the period specified in the order; or
(b) until a psychiatrist who has examined the person since the order was made either makes, or decides not to make, another order in respect of the person under this Act,
whichever is first.
Subdivision 4 — Examination otherwise than in an authorised hospital
38. Time limit
An examination is not to be made by a psychiatrist for the purposes of a referral under section 29(2)(b) if more than 7 days have elapsed since the referral was made.
39. Choices upon examination
(1) A psychiatrist who examines a person for the purposes of a referral under section 29(2)(b) may order that the person be received into, and detained in, an authorised hospital for assessment of whether an order should be made under section 43.
(2) An order under subsection (1) is to specify the day and time when it is made.
40. Reception into hospital
(1) A person in respect of whom an order is made under section 39 is to be received into the authorised hospital and may be detained there for —
(a) 72 hours after the time of reception; or
(b) until a psychiatrist who has examined the person since the order was made either makes, or decides not to make, another order in respect of the person under this Act,
whichever is first.
(2) A person is not to be so received if more than 7 days have elapsed since the referral was made under section 29(2)(b).
(3) Being received into an authorised hospital under this section is not admission to the hospital for the purposes of this Act.
(4) If the person has not been examined by a psychiatrist within the period specified in subsection (1)(a), the person may not be detained any longer.
41. Police assistance
(1) A psychiatrist who orders that a person who is not in police custody be received under section 39 into an authorised hospital may make a written order (a transport order) authorising a police officer to —
(a) apprehend the person; and
(b) take the person to the authorised hospital.
(2) A transport order is not to be made unless the condition of the person is such that assistance is required to take the person to the hospital and no suitable alternative is available.
(3) A transport order is to specify the day and time when it was made.
42. Operation of transport order
(1) A person apprehended under a transport order is to be taken to the authorised hospital as soon as is practicable.
(2) The person may be detained under the transport order —
(a) until the order lapses; or
(b) until the person is received into an authorised hospital under section 40(1),
whichever is first.
(3) A transport order lapses 72 hours after it is made.
Subdivision 5 — Involuntary status
43. Order giving involuntary status
(1) This section applies where a psychiatrist examines a person who —
(a) has been received into an authorised hospital under section 36 or 40 (whether or not section 37(1)(b) applies);
(b) has been referred by operation of section 30; or
(c) is required to be examined under section 56.
(2) The psychiatrist may if he or she believes that, having regard to section 26, the person should be made an involuntary patient, either —
(a) order in writing that the person —
(i) be detained in an authorised hospital as an involuntary patient; and
(ii) be admitted for that purpose;
or
(b) make a community treatment order in respect of the person.
(3) Subsection (2) has effect subject to sections 65 and 66.
(4) An order in respect of a person referred for examination under section 29 can be made under this section only if it is made before the end of the 7th day after the referral was made.
44. Mentally Impaired Accused Review Board to be notified in certain cases
If an order is made under section 43 in respect of a mentally impaired accused who has been released by the Governor on conditions under the Criminal Law (Mentally Impaired Accused) Act 1996, the person making the order must as soon as is practicable give a copy of the order to the secretary of the Mentally Impaired Accused Review Board.
[Section 44 amended by No. 84 of 2004 s. 82.]
Division 2 — Detention in authorised hospital
Subdivision 1 — Place of detention
45. Hospital in which a person is to be detained
An order that a person be received into or admitted to an authorised hospital and detained there authorises —
(a) the reception of the person into or his or her admission to any authorised hospital that a psychiatrist considers to be suitable; and
(b) the detention of the person at that hospital.
46. Transfer
At any time while a person is detained in an authorised hospital —
(a) under section 36(1), 37(1)(b) or 40(1); or
(b) as an involuntary patient,
a psychiatrist may order that the person be transferred to another authorised hospital specified in the order.
47. Person in charge of hospital may decline to accept
(1) Where an order has been made that a person be received into, admitted to, or transferred to a specified hospital, the person in charge of the hospital may decline to accept the person if the facilities then available at the hospital are insufficient or inappropriate for accommodating or treating the person.
(2) Where that happens, the person may be received into, admitted to, or transferred to another authorised hospital.
Subdivision 2 — Period of detention
48. Initial period
(1) An order under section 43(2)(a) or 70(1) authorises the detention of the person for a period ending on a day specified in the order.
(2) The day must be not later than the 28th day after the order is made.
(3) The order authorises the detention of the person until —
(a) the end of the day specified in the order;
(b) it is ordered that the person is no longer an involuntary patient; or
(c) the person becomes the subject of a community treatment order,
whichever is first.
49. Examination within 28 days
(1) The treating psychiatrist is to ensure that an involuntary patient is again examined by a psychiatrist before the end of the period of detention specified under section 48.
(2) If on examining the person, and having regard to section 26, the psychiatrist does not believe that the person should continue to be an involuntary patient, the psychiatrist is to immediately order that the person is no longer an involuntary patient.
(3) If on examining the person, and having regard to section 26, the psychiatrist believes that the person should continue to be an involuntary patient, the psychiatrist may either —
(a) order that the person continue to be detained as an involuntary patient for a further period ending on a day specified in the order; or
(b) make a community treatment order in respect of the person.
(4) A period specified under subsection (3)(a) cannot end more than 6 months after the order is made.
50. Subsequent examinations within 6 months
(1) The treating psychiatrist is to ensure that an involuntary patient who is detained is again examined by a psychiatrist before the end of the period of detention specified under section 49(3)(a).
(2) The powers in section 49(2) and (3) are also exercisable on the occasion of that examination.
(3) Subsections (1) and (2) apply in respect of each successive period of detention so as to ensure that —
(a) the patient is again examined before the end of each such successive period; and
(b) the powers in section 49(2) and (3) are exercisable on each occasion.
51. Effect of order continuing detention
An order under section 49(3) or 50(2) that a person continue to be detained as an involuntary patient authorises the detention of the person in an authorised hospital until —
(a) the end of the day specified in the order;
(b) it is ordered that the person is no longer an involuntary patient; or
(c) the person becomes the subject of a community treatment order,
whichever is first.
52. Order for release may be made at any time
At any time while a person is detained as an involuntary patient in an authorised hospital, a psychiatrist may —
(a) if the psychiatrist believes, having regard to section 26, that the person should not continue to be an involuntary patient, order that the person is no longer an involuntary patient; or
(b) make a community treatment order in respect of the person.
53. Saving
This Subdivision has effect subject to section 25 of the Criminal Law (Mentally Impaired Accused) Act 1996.
[Section 53 amended by No. 84 of 2004 s. 82.]
Subdivision 3 — Release from detention
54. Release when period of detention ends
When a period of detention of a person under this Act in an authorised hospital ends the person —
(a) is to be informed in writing of that fact as soon as is practicable after the period ends; and
(b) unless the person is further detained in the hospital under this Act, is to be permitted to leave the hospital.
55. When person to be returned to custody
Where —
(a) this Act requires that a person be permitted to leave an authorised hospital at the end of that person’s detention; and
(b) at the time when the person is to leave the hospital the person is subject to an order under a law of the State or the Commonwealth requiring that he or she be kept in custody,
the person is to be permitted to leave only when he or she has been delivered into that custody.
56. Examination of prisoner about to be discharged
(1) This section applies to a person who —
(a) is a prisoner under the Prisons Act 1981;
(b) has under section 27 of that Act been removed to an authorised hospital; and
(c) while admitted to the hospital becomes entitled to be discharged from lawful custody.
(2) Before the person is released from the hospital the person, if not already an involuntary patient, is to be examined by a psychiatrist to determine whether the person should be made an involuntary patient.
Subdivision 4 — Absence without leave
57. Absence without leave
A person is absent without leave if, while subject to an order for detention as an involuntary patient, he or she —
(a) is away from an authorised hospital without having been granted leave of absence; or
(b) having been away from an authorised hospital on leave of absence, fails to return to —
(i) the authorised hospital; or
(ii) another authorised hospital to which the person has been transferred,
when the leave expires or is cancelled.
58. Apprehension of person absent without leave
(1) A person who, while subject to an order for detention as an involuntary patient, is absent without leave may be apprehended by —
(a) a person who is —
(i) qualified as prescribed by the regulations; and
(ii) employed at the authorised hospital from which the person is absent;
(b) a person qualified as prescribed by the regulations who —
(i) is not employed at the authorised hospital; but
(ii) is authorised by a person qualified as so prescribed who is employed at the authorised hospital;
or
(c) a police officer.
(2) A person who is not a police officer who apprehends a patient under subsection (1) is to take the patient to —
(a) the authorised hospital from which the patient is absent; or
(b) a police officer who is to ensure that the person is taken to the authorised hospital,
as soon as is practicable.
(3) A person who has a power of apprehension under this section may —
(a) for the purposes of this section, enter any premises where the person to be apprehended is reasonably suspected to be; and
(b) when apprehending the person seize anything that is likely to be used by the person in a way that would prejudice the health or safety of that person or any other person or would cause damage to any property.
(4) Section 199 applies to any thing seized under this section.
Subdivision 5 — Leave of absence
59. Grant of leave
(1) A psychiatrist may grant leave of absence to an involuntary patient who is detained in an authorised hospital if he or she is satisfied that the grant of leave —
(a) will —
(i) enable the patient to obtain surgical or medical treatment; or
(ii) be likely to benefit the health of the patient in some other way;
and
(b) will not be inconsistent with the objectives set out in section 26(1)(b).
(2) When considering whether to grant a patient leave of absence, a psychiatrist is to also consider whether it would be more appropriate —
(a) to order that the person is no longer an involuntary patient; or
(b) to make a community treatment order in respect of the person.
(3) Leave of absence may be granted in accordance with this section for such period and subject to such conditions as the psychiatrist granting it thinks appropriate.
(4) The power given by this section to grant leave of absence includes the power to extend the period for which a person is on leave of absence.
60. Cancellation of leave
(1) If a psychiatrist believes on reasonable grounds that it is inappropriate for an involuntary patient who is away from an authorised hospital on leave of absence to continue to be away from hospital, the psychiatrist may cancel the leave by notice in writing given to the patient.
(2) The notice is to be served personally on the patient by or on behalf of the psychiatrist.
61. Status of patient on leave of absence
An involuntary patient who is away from hospital on leave of absence is considered to continue to be detained in the hospital during the time while on leave, but this section does not limit the freedom of movement given by the leave of absence.
62. Monitoring of patient on leave
(1) When an involuntary patient has been away from an authorised hospital on leave of absence for more than 28 consecutive days the treating psychiatrist is to make such enquiries as are necessary to assess whether the patient should continue to be detained as an involuntary patient.
(2) If it appears appropriate to do so the treating psychiatrist is to —
(a) order that the person is no longer an involuntary patient; or
(b) make a community treatment order in respect of the patient.
63. Release on advice of practitioner while patient on leave
(1) Subsection (2) applies where —
(a) an involuntary patient is away from an authorised hospital on leave of absence; and
(b) the treating psychiatrist is given a written opinion from another medical practitioner or an authorised mental health practitioner to the effect that the patient should not continue to be detained as an involuntary patient.
(2) The treating psychiatrist may, on the basis of the opinion —
(a) order that the person is no longer an involuntary patient; or
(b) make a community treatment order in respect of the patient.
64. Saving
This Subdivision has effect subject to section 25 of the Criminal Law (Mentally Impaired Accused) Act 1996.
[Section 64 amended by No. 84 of 2004 s. 82.]
Division 3 — Treatment of involuntary patient in the community
Subdivision 1 — Making community treatment order
65. No detention without consideration of community treatment
A psychiatrist is not to make an order that a person be, or continue to be, detained as an involuntary patient without having considered whether the objects of this Act would be better achieved by making a community treatment order in respect of the person.
66. When a community treatment order may be made
(1) A psychiatrist is not to make a community treatment order in respect of a person unless satisfied that —
(a) treatment in the community would not be inconsistent with the objectives set out in section 26(1)(b);
(b) suitable arrangements can be made for the care of the patient in the community;
(c) a medical practitioner or mental health practitioner who is suitably qualified and willing to do so will be available to ensure that the patient receives the treatment outlined in the order; and
(d) a psychiatrist who is willing to do so will be available to supervise the carrying out of the order.
(2) A community treatment order cannot be made in respect of an involuntary patient to whom section 25(3) of the Criminal Law (Mentally Impaired Accused) Act 1996 applies.
[Section 66 amended by No. 84 of 2004 s. 82.]
67. General power to make a community treatment order
(1) A psychiatrist who has examined a person and believes, having regard to section 26, that the person should be made an involuntary patient may make a community treatment order in respect of the person.
(2) Subsection (1) is in addition to any other power in this Act to make a community treatment order.
68. Terms of community treatment order
(1) A community treatment order is to specify —
(a) a psychiatrist who will be responsible for supervising the carrying out of the order;
(b) a treatment plan outlining the treatment that the patient is to receive under the order and including details of —
(i) where and when the treatment is to be given; and
(ii) such other matters relating to the treatment as it is appropriate to specify;
(c) a medical practitioner or mental health practitioner who will be responsible for ensuring that the treatment plan is carried out; and
(d) the time when the order will lapse, being not more than 3 months after the order comes into effect.
(2) The order may include directions to the treating practitioner and to the psychiatrist who will be responsible for supervising the carrying out of the order as to reporting on the patient’s progress.
69. Order to be confirmed
(1) A community treatment order does not have effect unless, within 72 hours after it is made, it is confirmed by —
(a) another psychiatrist; or
(b) if another psychiatrist is not readily available, another medical practitioner who has been authorised for the purposes of this section.
(2) Subsection (1) does not apply where —
(a) the order was made under section 43; or
(b) the person is already detained in an authorised hospital as an involuntary patient.
(3) The Chief Psychiatrist may, by order published in the Gazette —
(a) authorise a medical practitioner for the purposes of this section if the medical practitioner has, in the opinion of the Chief Psychiatrist, suitable experience to decide whether a person should be the subject of a community treatment order;
(b) revoke any such authorisation.
70. Revocation of a community treatment order
(1) The supervising psychiatrist may revoke a community treatment order with or without making an order that the person be admitted to, and detained in, an authorised hospital as an involuntary patient.
(2) An order may only be revoked —
(a) if the patient has failed to do anything required to be done under the order or an order to attend under section 82; or
(b) if it no longer appears that the requirements of section 66 for the making of a community treatment order are satisfied.
71. Police assistance
(1) Where under section 70 —
(a) a community treatment order in respect of a person is revoked; and
(b) an order is made that the person be admitted to, and detained in, an authorised hospital as an involuntary patient,
the supervising psychiatrist may make a written order (a transport order) authorising a police officer to apprehend the person and take him or her to the hospital.
(2) A transport order is not to be made unless the condition of the person is such that assistance is required to take the person to the hospital and no suitable alternative is available.
(3) A transport order is to specify the day and time when it was made.
72. Carrying out of transport order
(1) A person apprehended under a transport order made under section 71 is to be taken to the authorised hospital as soon as is practicable.
(2) The person may be detained under the transport order —
(a) until the order lapses; or
(b) until the person is admitted to the hospital,
whichever is first.
(3) A transport order lapses 72 hours after it is made.
Subdivision 2 — Operation of community treatment order
73. Duration of community treatment order
A community treatment order has effect until —
(a) the order lapses either at the time specified in the order or after any further period for which it was extended;
(b) an extension of the order ceases to have effect because a second opinion under section 76 either —
(i) does not confirm that the extension should have been made; or
(ii) has not been obtained under that section within the time required;
(c) the order is revoked under section 70;
(d) it is ordered under section 78 that the person who is the subject of the order is no longer an involuntary patient; or
(e) the person is admitted to an authorised hospital as an involuntary patient.
74. The supervising psychiatrist
(1) The supervising psychiatrist may be the psychiatrist who made the order or another psychiatrist.
(2) The supervising psychiatrist may also be the treating practitioner.
(3) The psychiatrist responsible for supervising the carrying out of the order may transfer that responsibility to another psychiatrist and, in that event, is to notify the patient in writing of the transfer.
75. Review by supervising psychiatrist
(1) The supervising psychiatrist is to ensure that not more than one month passes without the patient having been examined by the supervising psychiatrist.
(2) The examinations required by this section are to include a review of whether the person should continue to be an involuntary patient.
(3) A record of each of the examinations is to be made in the case notes of the patient that are kept by the psychiatrist.
76. Extension of community treatment order
(1) Before a community treatment order lapses the supervising psychiatrist may, if the order has not previously been extended, extend the period for which the order has effect by not more than 3 months.
(2) The patient is to be given written notice of an extension.
(3) The patient may, in writing, request the psychiatrist extending the order to obtain a second opinion from another psychiatrist as to whether the order should have been extended.
(4) If the second opinion —
(a) has not been obtained within 14 days after the patient’s request; or
(b) does not confirm that the extension should have been made,
the extension is of no effect, or no further effect, as the case requires.
(5) Subsection (4) does not apply if the second opinion has not been obtained because the patient failed to attend an examination.
(6) A psychiatrist who has been requested to obtain a second opinion is to provide a copy of the request to the Mental Health Review Board before the next time that it carries out a review under Division 2 of Part 6 of whether or not the order should continue to have effect.
77. Supervising psychiatrist may act on authorised medical practitioner’s report
(1) The supervising psychiatrist may request an authorised medical practitioner to examine a patient who is the subject of a community treatment order and provide the psychiatrist with a written report about the patient.
(2) The request is to be in writing and may specify requirements for the carrying out of the examination and the preparation of the report.
(3) If the authorised medical practitioner carries out an examination of the patient and provides the psychiatrist with a report as required, the psychiatrist may without personally examining the patient prepare a report about the patient on the basis of the authorised medical practitioner’s report.
(4) A psychiatrist who prepares a report about a patient under subsection (3) without having personally examined the patient is taken for the purposes of this Act to have examined the patient.
78. Person may be discharged from involuntary status
If the supervising psychiatrist on examining a person who is the subject of a community treatment order believes, having regard to section 26, that the person should not continue to be an involuntary patient, the psychiatrist is to order that the person is no longer an involuntary patient.
79. Variation of order
(1) The supervising psychiatrist may —
(a) transfer the responsibility for ensuring that the treatment plan specified in an order is carried out from the person who is the treating practitioner to —
(i) another medical practitioner; or
(ii) a mental health practitioner,
who in the opinion of the psychiatrist is suitably qualified and who is willing to be the treating practitioner; and
(b) otherwise vary the terms of the order.
(2) A psychiatrist who transfers responsibility under subsection (1)(a) is to notify the patient in writing of the transfer as soon as is practicable.
Subdivision 3 — Breach of community treatment order
80. What constitutes breach of order
A breach of a community treatment order occurs if —
(a) the person the subject of the order does not comply with the order in some respect; and
(b) the supervising psychiatrist believes that —
(i) all reasonable steps have been taken to obtain compliance without sufficient success; and
(ii) a significant risk of the condition of the person deteriorating arises from the non‑compliance.
81. Action following breach
(1) If a breach of a community treatment order occurs, the supervising psychiatrist is to —
(a) make a written record of the breach stating —
(i) the beliefs mentioned in section 80(b);
(ii) the facts on which the beliefs are based; and
(iii) the reasons for forming the beliefs;
and
(b) unless it is impracticable to do so, give the person the subject of the order notice of the breach.
(2) The notice is to inform the person that continued non‑compliance with the order will result in the person being required to attend at a specified place to receive treatment.
82. Action where breach continues
(1) If the supervising psychiatrist, having given the person notice under section 81(1)(b), is not satisfied that since the notice was given the person has complied with the order, the psychiatrist may make an order to attend in respect of the person.
(2) An order to attend is an order requiring the person to attend at a time and place specified in the order to receive treatment.
(3) An order to attend is to be made in writing and given to the person to whom it is directed.
(4) An order to attend is to be accompanied by a written warning to the person to the effect that the assistance of a police officer may be obtained to ensure that the person attends for treatment.
83. Treatment may be given without consent
A person may be given treatment under an order to attend whether or not the person consents to the treatment.
84. Police assistance
(1) If the person has failed to comply with an order to attend the supervising psychiatrist may make a written order authorising a police officer —
(a) to apprehend the person; and
(b) to take the person for treatment as specified in the order to attend.
(2) An order is not to be made under subsection (1) if there is reasonably available a suitable alternative means of ensuring that the person attends for treatment as required by the order to attend.
(3) A person apprehended —
(a) is to be given a copy of the order made under subsection (1);
(b) is to be taken to the place specified for treatment as close as is practicable to a time when the treatment can be given; and
(c) may be detained under the order until the treatment is given.
85. Power of revocation not affected
Nothing in this Division limits the exercise of the power to revoke a community treatment order under section 70.
Part 4 — Interstate movements
86.
In this Part —
agreement means an agreement referred to in section 87 and, if the agreement has been varied in accordance with that section, means the agreement as varied.
87. Agreements
(1) The Minister may, on behalf of the State, from time to time, enter into an agreement with the Government of another State or a Territory of the Commonwealth for —
(a) the taking, reception, care, treatment, maintenance, burial, and payment of expenses, under the laws of that State or Territory, of persons released or discharged from any custody or status under this Act;
(b) the taking, reception, care, treatment, maintenance, burial, and payment of expenses, under this Act, of persons released or discharged from any custody or status under the laws of that State or Territory relating to mental disorder.
(2) The power to enter into an agreement under this section includes a power to vary the agreement.
(3) If the Minister enters into or varies an agreement under this section, the Minister is to cause a notice to be published in the Gazette of the agreement or variation setting out its terms.
88. Best interests of person to be considered
A person is not to be dealt with under this Part in accordance with an agreement except in a way that is in the best interests of the person.
89. Persons apprehended
(1) A police officer who apprehends a person under section 195 may, instead of dealing with the person under that section, take action under subsection (2) if he or she considers that it would be —
(a) in accordance with an agreement; and
(b) appropriate in the circumstances,
to do so.
(2) The police officer may take the person to be dealt with, in accordance with the agreement, under the laws of another State or a Territory of the Commonwealth relating to mental disorder.
90. Referral for examination
A practitioner referred to in section 29 may, under that section, refer for examination by a psychiatrist a person who has, in accordance with an agreement, been released or discharged from any custody or status under the laws of another State or a Territory of the Commonwealth relating to mental disorder.
91. Transfer to another jurisdiction
If, in accordance with an agreement, a person who is an involuntary patient is to be dealt with under the laws of another State or a Territory of the Commonwealth relating to mental disorder —
(a) the Chief Psychiatrist may order that the person is no longer an involuntary patient; and
(b) such things may be done as are necessary to enable the person to be dealt with in accordance with the agreement.
Part 5 — Treatment of patients
Division 1 — General
92.
In this Part —
electroconvulsive therapy means the application of electric current to specific areas of the head to produce a generalized seizure which is modified by general anaesthesia and the administration of a muscle relaxing agent;
emergency psychiatric treatment has the meaning given by section 113;
informed consent has the meaning given by Division 2;
psychosurgery has the meaning given by section 100.
93. Treatment of persons on remand
The treatment that may be given to a person as an involuntary patient is not affected by the fact that the person has been remanded in custody or is on bail.
94. Mentally Impaired Accused Review Board to be notified of treatment of mentally impaired
(1) If under Division 4, 5, 7, 8 or 9 a mentally impaired accused is given treatment, the treating psychiatrist is to give a report of the treatment to the secretary of the Mentally Impaired Accused Review Board.
(2) The report is to include all information that under those Divisions is required to be recorded.
[Section 94 amended by No. 84 of 2004 s. 82.]
Division 2 — Informed consent
95. Requirements for informed consent
(1) For the purposes of this Division a patient gives informed consent to treatment only if —
(a) the requirements of this Division have been complied with; and
(b) the consent was freely and voluntarily given.
(2) A failure to offer resistance to treatment does not of itself constitute consent to treatment.
96. Capacity to give informed consent
A patient is incapable of giving informed consent unless he or she is capable of understanding —
(a) the things that are required by this Division to be communicated to him or her;
(b) the matters involved in the decision; and
(c) the effect of giving consent.
97. Explanation to be given
(1) Before an informed consent is given the patient is to be given a clear explanation of the proposed treatment —
(a) containing sufficient information to enable the patient to make a balanced judgment about the treatment;
(b) identifying and explaining any medication or technique about which there is insufficient knowledge to justify its being recommended or to enable its effect to be reliably predicted; and
(c) warning the patient of any risks inherent in the treatment.
(2) The extent of the information that a patient is required to be given under this section is limited to information that a reasonable person in the patient’s position would be likely to regard as significant unless it is, or reasonably should be, known that the patient would be likely to regard other information as significant.
(3) The requirements of subsection (1) apply irrespective of any privilege that a person may assert.
(4) Anything that is required by this section to be communicated to a patient is not to be considered to have been effectively communicated unless —
(a) it is in a language or form that is readily understood by the patient using a competent interpreter if necessary; and
(b) it is so expressed as to facilitate his or her understanding of what is required to be communicated.
98. Sufficient time to be given
Informed consent is not to be considered to have been given unless the patient has been allowed sufficient time to consider the matters involved in the decision and obtain such advice and assistance as may be desired.
Division 3 — Prohibited treatment
99. Offence to administer certain treatment
(1) A person is not to administer to or perform on another person —
(a) deep sleep therapy; or
(b) insulin coma or sub‑coma therapy.
(2) A person who contravenes subsection (1) commits a crime.
Penalty: Imprisonment for 5 years.
Division 4 — Psychosurgery
100. Meaning of “psychosurgery”
(1) In this Division —
psychosurgery means —
(a) the use of a surgical technique or procedure, or of intracerebral electrodes, to create in a person’s brain a lesion that, by itself or together with any other lesion created at the same time or any other time, is intended to permanently alter the thoughts, emotions, or certain behaviour of the person; or
(b) the use of intracerebral electrodes to stimulate a person’s brain, without creating a lesion, with the intent that, by itself or together with any other such stimulation at the same time or any other time, the stimulation will, temporarily, influence or alter the thoughts, emotions, or certain behaviour of the person.
(2) The behaviour referred to in subsection (1)(a) and (b) does not include behaviour considered to be secondary to a paroxysmal cerebral dysrhythmia.
101. Prerequisites to psychosurgery
(1) A person is not to perform psychosurgery on another person unless —
(a) that other person has given informed consent to it; and
(b) it has been approved by the Mental Health Review Board constituted as required by section 130.
(2) A person who contravenes subsection (1) commits a crime.