Mental Health Act 2014

 

Mental Health Act 2014

Contents

Part 1 — Preliminary matters

1.Short title2

2.Commencement2

3.Act binds Crown2

Part 2 — Terms and concepts

Division 1 — Definitions and notes

4.Terms used3

5.Notes and examples not part of Act11

Division 2 — Mental illness

6.When person has a mental illness11

Division 3 — Best interests of a person

7.Matters relevant to decision about person’s best interests13

Division 4 — Wishes of a person

8.Matters relevant to ascertaining person’s wishes13

Division 5 — Communicating with a person

9.Language, form of communication and terms to be used14

Part 3 — Objects

10.Objects15

Part 4 — Charter of Mental Health Care Principles

11.Regard to be had to Charter16

12.Compliance with Charter by mental health services16

Part 5 — Decision making capacity and informed consent

Division 1 — Decision making capacity generally

13.Capacity of adult to make decisions17

14.Capacity of child to make decisions17

15.Determining capacity to make decisions17

Division 2 — Informed consent to treatment

16.Requirements for informed consent18

17.People who can give informed consent18

18.Determining capacity to make treatment decision19

19.Explanation of proposed treatment must be given19

20.Sufficient time for consideration20

Part 6 — Involuntary patients

Division 1 — When a person will be an involuntary patient

21.Involuntary patient21

22.Inpatient treatment order21

23.Community treatment order21

24.Making involuntary treatment order22

25.Criteria for involuntary treatment order22

Division 2 — Referrals for examination

Subdivision 1 — Person suspected of needing involuntary treatment order

26.Referral for examination at authorised hospital or other place24

27.Person to be taken to authorised hospital or other place as soon as practicable25

28.Detention to enable person to be taken to authorised hospital or other place25

29.Making transport order27

30.Effect of referral on community treatment order28

31.Revoking referral29

Subdivision 2 — Voluntary inpatient admitted by authorised hospital

32.Application of this Subdivision30

33.Effect of admission on community treatment order30

34.Person in charge of ward may order assessment31

35.Revoking order for assessment32

36.Referral for examination at authorised hospital32

37.Revoking referral33

Subdivision 3 — Requirements for referral

38.Application of this Subdivision34

39.No referral without assessment34

40.Time limit for making referral34

41.Form of referral35

42.Providing information contained in referral to person referred36

43.Copy of referral must be filed36

44.Period of referral made under s. 26(2) or (3)(a)36

45.Extending referral made outside metropolitan area36

46.Changing place where examination will be conducted38

Subdivision 4 — Conduct of assessment

47.Application of this Subdivision39

48. MHow assessment must be conducted39

49.Information to which practitioner may have regard40

50.Assessment of person of Aboriginal or Torres Strait Islander descent40

Division 3 — Examinations

Subdivision 1 — Examination at authorised hospital

51.Application of this Subdivision41

52.Detention for examination on referral made under s. 26(2)41

53.Detention for examination on referral made under s. 36(2)42

54.Conducting examination42

55.What psychiatrist must do on completing examination43

56.Effect of order for continuation of detention44

Subdivision 2 — Examination at place that is not authorised hospital

57.Application of this Subdivision45

58.Detention for examination45

59.Detention at place outside metropolitan area46

60.Conducting examination47

61.What psychiatrist must do on completing examination48

62.Detention to enable person to be taken to hospital49

63.Making transport order51

Subdivision 3 — Inpatient treatment order authorising detention at general hospital

64.Application of this Subdivision51

65.Treating psychiatrist must report regularly to Chief Psychiatrist51

66.Transfer from general hospital to authorised hospital52

67.Making transport order53

68.Confirmation of inpatient treatment order53

Subdivision 4 — Order for further examination at authorised hospital

69.Application of this Subdivision54

70.Detention at authorised hospital54

71.Conducting examination at authorised hospital55

72.What psychiatrist must do on completing examination55

Subdivision 5 — Examination without referral

73.Application of this Subdivision56

74.Conducting examination56

75.What psychiatrist may do on completing examination56

76.Confirmation of community treatment order57

Subdivision 6 — Conduct of examination

77.Application of this Subdivision57

78.Referring psychiatrist cannot conduct examination58

79. MHow examination must be conducted59

80.Information to which examiner may have regard60

81.Examination of person of Aboriginal or Torres Strait Islander descent61

Part 7 — Detention for examination or treatment

Division 1 — Preliminary matters

82.Application of this Part62

Division 2 — Detention at authorised hospital or other place for examination

83.Detention authorised62

Division 3 — Detention at hospital under inpatient treatment order

84.Application of this Division63

85.Terms used64

86.Detention authorised64

87.Period that must be specified in inpatient treatment order64

88.Period for which detention is authorised65

89.Examination before end of each detention period65

90.Changing involuntary inpatient’s status66

91.Transfer between authorised hospitals67

92.Making transport order68

93.Involuntary inpatient to be advised of expiry68

Division 4 — Release from hospital or other place

94.Application of this Division69

95.Person must be allowed to leave69

96.Delivery into custody under another law70

Division 5 — Absence without leave from hospital or other place

97.Persons who are absent without leave70

98.Making apprehension and return order71

99.Operation of apprehension and return order72

100.Period of apprehension and return order72

101.Revocation of apprehension and return order72

102.Return of person to place where apprehended73

Division 6 — Leave of absence from detention at hospital under inpatient treatment order

Subdivision 1 — Preliminary matters

103.Application of this Division74

104.Term used: leave of absence74

Subdivision 2 — Grant, extension, variation or cancellation of leave

105.Granting leave74

106.Extending or varying leave granted77

107.Involuntary inpatient must comply with conditions of leave78

108.Monitoring involuntary inpatient on leave78

109.Changing involuntary inpatient’s status while inpatient on leave78

110.Cancelling leave79

Subdivision 3 — Transport to and from hospital

111.Application of this Subdivision80

112.Making transport order80

Part 8 — Community treatment orders

Division 1 — Preliminary matters

113.Terms used81

Division 2 — Making order

114.Things psychiatrist must be satisfied of before making order81

115.Terms of order82

Division 3 — Operation of order

116.Duration of order83

117.Advice about when and where treatment to be provided84

118.Monthly examination of patient84

119.Supervising psychiatrist may request practitioner to examine involuntary community patient85

120.What supervising psychiatrist may do after examination86

121.Continuation order87

122.Varying order89

123.Making inpatient treatment order or revoking community treatment order89

124.Confirmation of inpatient treatment order91

125.Involuntary community patient to be advised of expiry92

Division 4 — Breach of order

126.When involuntary community patient will be in breach93

127.What supervising psychiatrist must do if order breached93

128.Order to attend if non‑compliance continues94

129.Making transport order95

130.Detention at place specified in order to attend95

131.Other action that may be taken if non‑compliance97

Division 5 — Transport to hospital

132.Application of this Division99

133.Making transport order99

Division 6 — Supervising psychiatrist and treating practitioner

134.Supervising psychiatrist99

135.Change of supervising psychiatrist100

136.Treating practitioner101

137.Change of treating practitioner101

Part 9 — Notifiable events

Division 1 — Preliminary matters

138.Application of this Part102

Division 2 — Notification of carers, close family members and other personal support persons

139.Right of any carer, close family member or other personal support person to be notified102

140.Person responsible required to notify any carer, close family member or other personal support person102

141.Reasonable efforts to notify carer, close family member or other personal support person103

142.Notification not in person’s best interests103

143.Advising carer, close family member or other personal support person of decision104

144.Revocation of decision105

Division 3 — Notification of other persons and bodies

145.Making, revocation or expiry of involuntary treatment order106

Part 10 — Transport orders

146.Application of this Part108

147.Transport officers109

148.Making transport order109

149.Operation of transport order110

150.Period of transport order110

151.Extension of transport order made under s. 29(1) if referral extended111

152.Extension of other transport orders112

153.Revocation of transport order if referral revoked113

154.Revocation of transport order if no longer needed113

155.Return of person if transport order expires or is revoked113

Part 11 — Apprehension, search and seizure powers

Division 1 — Apprehension powers

156.Apprehension by police officer of person suspected of having mental illness115

157.Assessment of person arrested116

158.Police must be notified when person leaves116

159.Apprehension of other persons117

Division 2 — Search and seizure powers

160.Term used: approved form118

161.Authorised persons118

162.Search of person while detained or admitted118

163.Conduct of search119

164.Seizure of articles121

165.Record of search and seizure121

166.Dealing with articles seized when person apprehended122

167.Return of articles given to or seized by mental health service124

168.Return of articles given to medical practitioner or authorised mental health practitioner126

169.Approval of forms for use by police officers under this Division126

Part 12 — Exercise of certain powers

Division 1 — Detention powers

170.Principles relating to detention127

Division 2 — Ancillary powers: reasonable assistance and force and directions

171.Term used: prescribed provision127

172.Reasonable assistance and reasonable force authorised128

173.Duty to obey directions128

174.Other written laws not affected128

Part 13 — Provision of treatment generally

Division 1 — Voluntary patients

175.Informed consent necessary129

176.Informed consent must be filed129

Division 2 — Involuntary patients and mentally impaired accused

177.Application of this Division130

178.Informed consent not necessary130

179.Patient’s psychiatrist must ensure regard had to patient’s wishes131

180.Requirements for ascertaining patient’s wishes132

181.Record of treatment to be filed133

182.Further opinion may be requested133

183.Request for additional opinion may be refused135

184.Chief Psychiatrist may request reconsideration of treatment137

Division 3 — Treatment, support and discharge planning

185.Application of this Division137

186.Treatment, support and discharge plan138

187.Preparation and review of plan138

188.Involvement in preparation and review of plan140

Division 4 — Provision of treatment to patients of Aboriginal or Torres Strait Islander descent

189.Provision of treatment to patient of Aboriginal or Torres Strait Islander descent142

Division 5 — Compliance with standards and guidelines

190.Mental health service must comply with standards142

191.Mental health service must take guidelines into account142

Part 14 — Regulation of certain kinds of treatment and other interventions

Division 1 — Electroconvulsive therapy

192.Electroconvulsive therapy (ECT): meaning143

193.ECT offence143

194.ECT on child under 14 years prohibited143

195.ECT on child over 14 years who is voluntary patient143

196.ECT on child over 14 years who is involuntary patient or mentally impaired accused144

197.ECT on adult voluntary patient144

198.ECT on adult involuntary patient or mentally impaired accused145

199.Emergency ECT on adult involuntary patient or mentally impaired accused145

200.Report to Mentally Impaired Accused Review Board146

201.Statistics about ECT147

Division 2 — Emergency psychiatric treatment

202.Emergency psychiatric treatment: meaning149

203.Informed consent not required149

204.Record of emergency psychiatric treatment149

Division 3 — Psychosurgery

205.Psychosurgery: meaning150

206.Psychosurgery offence151

207.Psychosurgery on child under 16 years prohibited151

208.Psychosurgery on adult or child over 16 years old151

209.Report to Chief Psychiatrist and Mentally Impaired Accused Review Board151

Division 4 — Deep sleep and insulin coma therapy

210.Deep sleep and insulin coma therapy prohibited152

Division 5 — Seclusion

211.Terms used152

212.Seclusion: meaning152

213.Seclusion must be authorised153

214.Giving oral authorisation153

215.Making seclusion order155

216.Criteria for authorising seclusion157

217.Treating psychiatrist (if any) to be informed157

218.Extending seclusion order158

219.Revoking seclusion order158

220.Release of person on revocation or expiry of seclusion order159

221.Record of seclusion order expiring159

222.Requirements relating to seclusion159

223.Examination of person released from seclusion160

224.Report to Chief Psychiatrist and Mentally Impaired Accused Review Board161

225.Reasonable assistance and force authorised162

Division 6 — Bodily restraint

226.Terms used162

227.Bodily restraint: meaning163

228.Principles relating to use of bodily restraint164

229.Bodily restraint must be authorised164

230.Giving oral authorisation164

231.Making bodily restraint order166

232.Criteria for authorising bodily restraint169

233.Treating psychiatrist (if any) must be informed169

234.Varying bodily restraint order170

235.Revoking bodily restraint order171

236.Release of person on revocation or expiry of bodily restraint order172

237.Record of bodily restraint order expiring172

238.Requirements relating to bodily restraint172

239.Examination of person when released173

240.Report to Chief Psychiatrist and Mentally Impaired Accused Review Board174

Part 15 — Health care of people in hospitals

Division 1 — Examination to assess person’s physical condition

241.Physical examination on arrival at hospital176

Division 2 — Urgent non‑psychiatric treatment for involuntary inpatients and mentally impaired accused

242.Provision of urgent non‑psychiatric treatment: report to Chief Psychiatrist177

Part 16 — Protection of patients’ rights

Division 1 — Patients’ rights generally

Subdivision 1 — Explanation of rights

243.Application of this Subdivision179

244.Rights to be explained to person180

245.Person’s rights to be explained to another person180

246.Person responsible for ensuring explanation is provided180

Subdivision 2 — Access to records about patients and former patients

247.Term used: relevant document181

248.Right to access medical record and other documents181

249.Restrictions on access182

250.Providing access to medical practitioner or legal practitioner182

251.Disclosure by medical practitioner or legal practitioner183

Subdivision 3 — Duties of staff of mental health services toward patients

252.Term used: mental health service183

253.Duty not to ill‑treat or wilfully neglect patients183

254.Duty to report certain incidents183

Division 2 — Additional rights of inpatients in hospitals

Subdivision 1 — Admission of voluntary inpatients by authorised hospitals

255.Admission by medical practitioner184

256.Confirmation of admission by psychiatrist184

257.Reasons for refusing to admit or confirm admission185

Subdivision 2 — Rights of inpatients generally

258.Application of this Subdivision185

259.Personal possessions186

260.Interview with psychiatrist187

261.Freedom of lawful communication187

262.Restrictions on freedom of communication188

Division 3 — Nominated persons

Subdivision 1 — Purpose and effect of nomination

263.Role of nominated person190

264.Effect of nomination190

Subdivision 2 — Right to information, and to be involved in matters, relating to patient’s treatment and care

265.Application of this Subdivision191

266.Rights of nominated person191

267.Responsibility of patient’s psychiatrist193

268.Contacting nominated person193

269.Provision of information or involvement not in patient’s best interests194

270.Advising nominated person of decision195

271.Revocation of decision195

272.Rights in another capacity not affected196

Subdivision 3 — Making and ending nomination

273.Who can make nomination196

274.Who can be nominated196

275.Formal requirements196

276.Only one nominated person197

277.Revocation of nomination197

278.Resignation of nominated person197

279.Notification of revocation or resignation198

Part 17 — Recognition of rights of carers and families

Division 1 — Role of carers and families

280.Carers199

281.Close family members199

282.Acknowledgment of and respect for role of carers and close family members200

283.More than one carer or close family member200

Division 2 — Information about and involvement in patient’s treatment and care

284.Application of this Division201

285.Rights of carers and close family members201

286.Voluntary patient with capacity to consent203

287.Voluntary patient with no capacity to consent203

288.Involuntary patient or mentally impaired accused with capacity to consent203

289.Involuntary patient or mentally impaired accused with no capacity to consent204

290.Responsibility of patient’s psychiatrist204

291.Contacting carer or close family member205

292.Provision of information or involvement not in patient’s best interests206

293.Advising carer or close family member of decision206

294.Revocation of decision207

295.Rights in another capacity not affected208

Division 3 — Identifying carer or close family member

296.When being admitted or received208

297.While being provided with treatment or care209

298.Person can withdraw consent, or can consent, at any time209

Part 18 — Children who have a mental illness

299.Best interests of child is a primary consideration211

300.Child’s wishes211

301.Views of child’s parent or guardian211

302.Child who is a voluntary patient211

303.Segregation of children from adult inpatients212

304.Off-label treatment provided to child who is involuntary patient213

Part 19 — Complaints about mental health services

Division 1 — Preliminary matters

305.Terms used214

306.Making complaint to service provider or Director of Complaints Office215

307.Divisions 3 and 4 to be read with Health and Disability Services (Complaints) Act 1995216

Division 2 — Complaints to service providers

308.Service provider must have complaints procedure216

309.Prescribed service providers must provide Director with information about complaints216

Division 3 — Complaints to Director of Complaints Office

Subdivision 1 — Preliminary matters

310.Parties themselves may resolve complaint217

311.Things done by or in relation to complainant217

Subdivision 2 — Director of Complaints Office

312.Functions of Director218

313.Directions by Minister219

314.Minister to have access to specified information about Director’s functions220

Subdivision 3 — Right to complain

315.Who may complain221

316.Representative of person with mental illness or carer222

317.Representative must not be paid223

318.Service provider may complain on behalf of person with mental illness or carer224

319.Registration board may complain on behalf of person with mental illness or carer224

320.Who and what can be complained about225

321.Time for complaining226

Subdivision 4 — Initial procedures

322.How to complain226

323.Referral of complaint about excluded mental health service227

324.Withdrawal of complaint227

325.Complainant should try to resolve matter227

326.Complaint that is not to be dealt with by National Board under Health Practitioner Regulation National Law (Western Australia)228

327.Complaint that is being dealt with by National Board under Health Practitioner Regulation National Law (Western Australia)228

328.Preliminary decision by Director228

329.Rejection, deferral or referral of complaints231

330.Response by respondent232

Subdivision 5 — Negotiated settlements and conciliation

331.Resolving complaints by negotiation233

332.Conciliation of complaints234

Subdivision 6 — Investigations

333.Conduct generally236

334.Power to require information and records237

335.Warrant to enter and inspect premises239

336.Conciliator cannot investigate240

Subdivision 7 — Consequences of investigation

337.What Director must do on completing investigation240

338.Respondent or other person to report on remedial action241

339.Report not provided or remedial action not taken: report to Parliament241

Subdivision 8 — Other matters relating to investigations

340.Director to stop if other proceedings begun242

341.Minister may refer matters for investigation243

342.Confidentiality243

Division 4 — Miscellaneous matters

343.Reports to Parliament244

344.False or misleading information or documents245

345.Person must not be penalised because of complaint or investigation245

346.Registers: complaints, matters directed to be investigated246

347.Delegation by Director247

Part 20 — Mental health advocacy services

Division 1 — Preliminary matters

348.Terms used248

Division 2 — Mental health advocates: appointment or engagement, functions and powers

Subdivision 1 — Appointment or engagement, functions and powers

349.Chief Mental Health Advocate249

350.Other mental health advocates249

351.Functions of Chief Mental Health Advocate249

352.Functions of mental health advocates250

353.Powers generally252

354.Directions to Chief Mental Health Advocate about general matters252

355.Directions to Chief Mental Health Advocate to report on particular issues253

Subdivision 2 — Contacting identified person or person with sufficient interest

356.Request to contact identified person254

357.Duty to contact identified person255

358.Contact on mental health advocate’s own initiative257

Subdivision 3 — Specific powers of mental health advocates

359.Specific powers of mental health advocates257

360.Documents to which access is restricted259

361.Disclosure by mental health advocate260

362.Interfering with exercise of powers260

363.Issues arising out of inquiries and investigations261

Division 3 — Terms and conditions of appointment or engagement

Subdivision 1 — Chief Mental Health Advocate

364.Terms and conditions of appointment262

365.Remuneration263

366.Resignation263

367.Removal from office263

368.Acting Chief Mental Health Advocate263

Subdivision 2 — Other mental health advocates

369.Terms and conditions of engagement264

370.Remuneration264

371.Resignation265

372.Removal from office265

Division 4 — Other matters relating to mental health advocates

373.Conflict of interest265

374.Delegation by Chief Mental Health Advocate266

Division 5 — Staff and facilities

375.Advocacy services staff267

376.Use of government staff and facilities267

Division 6 — Annual reports

377.Annual report: preparation268

378.Annual report: tabling268

Part 21 — Mental Health Tribunal

Division 1 — Preliminary matters

379.Terms used269

Division 2 — Establishment, jurisdiction and constitution

380.Establishment270

381.Jurisdiction270

382.Constitution specified by President270

383.Constitution generally270

384.Constitution for psychosurgical matters271

385.Contemporaneous exercise of jurisdiction271

Division 3 — Involuntary treatment orders: review

386.Initial review after order made272

387.Periodic reviews while order in force273

388.Involuntary patient for continuous period274

389.Review period may be extended275

390.Application for review276

391.Review on Tribunal’s own initiative277

392.Suspending order pending review278

393.Parties to proceeding278

394.Things to which Tribunal must have regard278

395.What Tribunal may do on completing review279

396.Review of direction given to psychiatrist280

Division 4 — Involuntary treatment orders: validity

397.Application of this Division280

398.Declaration about validity of treatment order281

399.Consequences of declaring treatment order in force to be invalid281

400.Application for declaration282

401.Parties to proceeding283

402.Failure to comply with this Act283

403.Discretion not to decide on validity of treatment order no longer in force283

Division 5 — Review of admission of long‑term voluntary inpatients

404.Application of this Division284

405.Application for review284

406.Parties to proceeding285

407.Things to which Tribunal must have regard285

408.What Tribunal may do on completing review286

Division 6 — Electroconvulsive therapy approvals

409.Application of this Division286

410.Application for approval286

411.Parties to proceeding287

412.Things Tribunal must be satisfied of287

413.Tribunal must have regard to Chief Psychiatrist’s guidelines287

414.Other things to which Tribunal must have regard288

415.Decision on application289

Division 7 — Psychosurgery approvals

416.Application of this Division289

417.Application for approval290

418.Parties to proceeding290

419.Things Tribunal must be satisfied of290

420.Things to which Tribunal must have regard291

421.Decision on application291

Division 8 — Compliance notices for non‑clinical matters

422.Terms used292

423.Tribunal may issue service provider with compliance notice292

424.Application for service of compliance notice293

425.Parties to proceeding294

426.Compliance notices to be reported on in annual report294

Division 9 — Review of orders restricting freedom of communication

427.Application for review294

428.Parties to proceeding295

429.Decision on application295

Division 10 — Jurisdiction in relation to nominated persons

430.Application for decision295

431.Declaration about validity of nomination296

432.Revocation of nomination296

433.Parties to proceeding296

Division 11 — Review of decisions affecting rights

434.Application for review297

435.Parties to proceeding297

436.What Tribunal may do on completing review297

Division 12 — Procedural matters

Subdivision 1 — Proceedings generally

437.Lodgment of documents298

438.Sittings298

439.Conduct of proceedings298

440.Presiding member298

441.Deciding questions in proceedings298

442.Assistance from persons with relevant knowledge or experience299

443.No fees payable299

444.Each party to bear own costs299

445.Frivolous, vexatious or improper proceedings299

Subdivision 2 — Notice of proceedings

446.Notice of applications300

447.Notice of hearings301

448.Tribunal may request information from SAT about person’s guardian303

Subdivision 3 — Appearance and representation

449.Party is an adult303

450.Party is a child with capacity to consent304

451.Party is a child with no capacity to consent305

452.Tribunal may make arrangements for representation305

453.Legal representation of person with mental illness305

454.Representative must not be paid306

Subdivision 4 — Hearings and evidence

455.Nature of review proceedings306

456.Closed hearings307

457.Conduct of hearing in absence of party308

458.Person chosen by person concerned may be present308

459.Right to be heard309

460.Evidence generally309

461.Oral evidence about restricted information309

462.Summons to give evidence or produce documents310

463.Self‑incrimination310

464.Powers in relation to documents produced311

465.Offences relating to evidence and documents311

466.Evidence and findings in other proceedings312

467.Hearings to be recorded312

468.Publication of information about proceedings312

Subdivision 5 — Decisions in proceedings

469.Reasons for decision316

470.Extension of time to request reasons316

471.Giving effect to Tribunal’s decisions317

Division 13 — Rules

472.Power to make317

473.Content317

474.Publication and tabling318

Division 14 — Tribunal members

475.President of Tribunal319

476.Other members319

477.Terms and conditions of appointment320

478.Remuneration320

479.Resignation320

480.Removal from office321

481.Acting members321

482.Delegation by President322

Division 15 — Registrar and other staff

483.Registrar323

484.Functions of registrar323

485.President may give registrar directions324

486.Registry staff324

487.Delegation by registrar324

Division 16 — Annual reports

488.Annual report: preparation324

489.Annual report: tabling325

Division 17 — Miscellaneous matters

490.Seal325

491.Judicial notice of certain matters325

492.Meetings of members326

Part 22 — Review by State Administrative Tribunal

Division 1 — Preliminary matters

493.Terms used327

Division 2 — Jurisdiction

494.Review of decisions of Mental Health Tribunal327

495.Determination of questions of law before Mental Health Tribunal328

Division 3 — Constitution

496.Constitution generally328

497.Constitution for psychosurgical matters328

498.Constitution for determining questions of law329

Division 4 — Procedural matters

499.No fees payable329

500.Appearance and representation330

501.Closed hearings330

502.Publication of information about proceedings331

Division 5 — Appeals to Supreme Court

503.Appeals against SAT’s decisions335

504.Grounds of appeal335

505.Time for appeal or leave to appeal335

506.Certain parties must be represented336

Part 23 — Administration

Division 1 — Preliminary matters

507.Term used: mental health service337

Division 2 — Chief Psychiatrist

Subdivision 1 — Appointment, terms and conditions

508.Appointment337

509.Terms and conditions of appointment337

510.Remuneration337

511.Resignation338

512.Removal from office338

513.Acting Chief Psychiatrist338

Subdivision 2 — Functions and powers generally

514.Functions generally339

515.Responsibility for treatment and care339

516.Directions by Minister340

517.Minister may request report about any matter341

518.CEO of Health Department may request report about treatment and care of patients341

519.Powers generally341

Subdivision 3 — Specific powers relating to treatment and care

520.Review of treatment342

521.Visits to mental health services343

522.Offence to interfere with visit to mental health service344

523.Directions to mental health services to disclose information345

Subdivision 4 — Notifiable incidents

524.Application of this Subdivision345

525.Term used: notifiable incident346

526.Reporting notifiable incidents346

527.Action that Chief Psychiatrist may take347

528.Notification of decision to take action348

529.Chief Psychiatrist’s powers of investigation348

530.Notification of outcome of investigation348

Subdivision 5 — Staff and facilities

531.Chief Psychiatrist’s staff349

532.Use of government staff and facilities349

Subdivision 6 — Annual reports

533.Annual report: preparation349

534.Annual report: tabling350

Subdivision 7 — Miscellaneous matters

535.Request for information about patient or person detained351

536.Request for list of mentally impaired accused351

537.Delegation by Chief Psychiatrist351

Division 3 — Mental health practitioners and authorised mental health practitioners

538.Mental health practitioners352

539.Authorised mental health practitioners352

540.Register of authorised mental health practitioners353

Division 4 — Authorised hospitals

541.Authorised hospital: meaning354

542.Authorisation of public hospitals354

543.Patients to be transferred if hospital no longer authorised355

Division 5 — Mental health services approved for electroconvulsive therapy

544.Chief Psychiatrist to approve mental health services355

Division 6 — Approved forms

545.Chief Psychiatrist to approve forms356

546.Publication of approved forms and related guidelines356

Division 7 — Guidelines and standards

547.Publication of guidelines and standards356

548.Application, adoption or incorporation of other documents357

549.Publication on Agency’s website357

Division 8 — Miscellaneous matters

550.Delegation by Minister or CEO358

Part 24 — Interstate arrangements

Division 1 — Preliminary matters

551.Terms used359

Division 2 — Intergovernmental agreements

552.Agreements with other States and Territories360

553.Agreement must be in place360

554.Performance of functions under corresponding laws or intergovernmental agreements360

Division 3 — Transfer to or from interstate mental health service

555.Transfer from hospital to interstate mental health service361

556.Making transport order362

557.Transfer from interstate mental health service to hospital362

558.Transport of interstate inpatient to hospital363

Division 4 — Community treatment orders

559.Treatment interstate under State order364

560.Making transport order364

561.Treatment in State under interstate order365

562.Supervision in State under interstate order365

Part 25 — Ministerial inquiries

563.Appointment of person to conduct inquiry366

564.Powers of investigation366

565.Interfering with investigation367

566.Conduct of inquiry generally368

567.Evidence generally368

568.Summons to give evidence or produce documents369

569.Self‑incrimination369

570.Powers in relation to documents produced369

571.Offences relating to evidence and documents370

Part 26 — Information

Division 1 — Voluntary disclosure of information by public authorities and mental health services

572.Powers of Agency’s CEO371

573.Powers of CEOs of prescribed State authorities373

574.Powers of CEOs of mental health services374

575.Delegation by CEO of prescribed State authority375

Division 2 — Miscellaneous matters

576.Confidentiality376

577.Authorised recording, disclosure or use of information377

578.Receipt and storage of, and access to, information disclosed378

Part 27 — Miscellaneous matters

579.Restrictions on powers of medical practitioners and mental health practitioners379

580.Obstructing or hindering person performing functions380

581.Amendment of referrals and orders381

582.Medical record to be kept by mental health services381

583.Protection from liability when performing functions382

584.Protection from liability when detaining person with mental illness383

585.Relationship with Freedom of Information Act 1992383

586.Regulations383

587.Review of this Act after 5 years384

Part 28  Repeals

588.Acts repealed385

589.Regulations repealed385

Part 29  Transitional matters for Mental Health Act 2014

Division 1 — Preliminary matters

590.Terms used386

Division 2 — Administrative provisions

Subdivision 1 — Chief Psychiatrist

591.First Chief Psychiatrist (1996 Act s. 8)387

592.Review of psychiatrists’ decisions about involuntary patients (1996 Act s. 12)388

593.Inspections of relevant premises (1996 Act s. 13)388

594.Records of Chief Psychiatrist388

Subdivision 2 — Authorised practitioners

595.Authorised mental health practitioners (1996 Act s. 20)389

Subdivision 3 — Authorised hospitals

596.Authorisation of public hospitals (1996 Act s. 21)389

Subdivision 4 — Registrar and staff of Mental Health Review Board

597.Registrar (1996 Act s. 22(a))390

598.Other staff (1996 Act s. 22(b))390

Division 3 — Involuntary patients

Subdivision 1 — Referral for examination

599.Referral for examination of person (1996 Act s. 29)391

600.Referral for examination of voluntary inpatient (1996 Act s. 30)392

601.Personal examination for referral (1996 Act s. 31 and 32)392

602.Transport to authorised hospital or other place (1996 Act s. 34)393

Subdivision 2 — Examination at authorised hospital

603.Detention of person who is referred at authorised hospital (1996 Act s. 36)394

604.Detention of voluntary inpatient admitted to authorised hospital394

605.Examination of person who is referred (1996 Act s. 37 including as applied by s. 30(5))395

606.Order made in respect of person who is referred (1996 Act s. 37 including as applied by s. 30(5))396

Subdivision 3 — Examination at place other than authorised hospital

607.Receival of person at place other than authorised hospital396

608.Examination for purposes of referral made under 1996 Act s. 29(2)(b)397

609.Detention of person for assessment at authorised hospital (1996 Act s. 39 and 40)397

610.Assessment because of order made under 1996 Act s. 39(1)398

611.Order made in respect of person detained for assessment (1996 Act s. 40(1)(b))399

612.Transport to authorised hospital (1996 Act s. 41)399

Subdivision 4 — Detention in authorised hospital

613.Transfer to another authorised hospital (1996 Act s. 46)400

614.Period of detention specified in order (1996 Act s. 48)400

615.Examination of patient within detention period (1996 Act s. 49(1) and 50(1))400

616.Order made on examination within detention period (1996 Act s. 49(3) including as applied by s. 50(2))401

617.Order made at any time (1996 Act s. 52)402

Subdivision 5 — Absence without leave and leave of absence

618.Absence without leave (1996 Act s. 57)402

619.Apprehension of person absent without leave (1996 Act s. 58)402

620.Grant of leave (1996 Act s. 59)403

621.Monitoring of involuntary inpatient on leave (1996 Act s. 62)403

622.Release of involuntary inpatient while on leave (1996 Act s. 63)404

Subdivision 6 — Treatment of involuntary patient in community

623.Community treatment order made under general power (1996 Act s. 67)404

624.Confirmation of community treatment order (1996 Act s. 69)405

625.Order made on revocation of community treatment order (1996 Act s. 70)405

626.Transport to authorised hospital (1996 Act s. 71)405

627.Review by supervising psychiatrist (1996 Act s. 75)406

628.Extension of community treatment order (1996 Act s. 76)406

629.Examination and report by authorised medical practitioner (1996 Act s. 77)407

630.Variation of community treatment order (1996 Act s. 79)408

631.Notice of breach (1996 Act s. 81)408

632.Order to attend if breach continues (1996 Act s. 82)408

633.Order for police assistance (1996 Act s. 84)409

Division 4 — Treatment of patients

634.Informed consent (1996 Act Pt. 5 Div. 2)409

635.Psychosurgery: approval already given (1996 Act s. 101)409

636.Psychosurgery: application for approval pending (1996 Act s. 102)410

637.Electroconvulsive therapy: course of treatment commenced before commencement day410

638.Electroconvulsive therapy: recommendation referred to Mental Health Review Board (1996 Act s. 106)410

639.Other medical treatment that is not psychiatric treatment (1996 Act s. 110)410

640.Second opinion requested (1996 Act s. 111)411

641.Dissatisfaction with second opinion (1996 Act s. 112)411

642.Seclusion (1996 Act s. 119)412

643.Mechanical bodily restraint (1996 Act s. 123)412

Division 5 — Mental Health Review Board

Subdivision 1 — President and other members of Board

644.Appointment to Mental Health Tribunal (1996 Act s. 126 and Sch. 1)413

Subdivision 2 — Reviews and inquiries

645.Initial review after commencement day (1996 Act s. 138)414

646.First periodic review after commencement day (1996 Act s. 139)415

647.Application for review pending before commencement day (1996 Act s. 142)416

648.Suspension of order or restraint of action pending review (1996 Act s. 143)416

649.Board initiated review (1996 Act s. 144)417

650.Order that community treatment order be made (1996 Act s. 145(2)(b))417

651.Complaints to Board (1996 Act s. 146)417

652.Enquiries directed by Minister (1996 Act s. 147)417

653.Final report about activities of Mental Health Review Board (1996 Act s. 148)418

654.Records and proceedings of Mental Health Review Board418

Subdivision 3 — Applications to State Administrative Tribunal

655.Applications for review or determination of questions of law (1996 Act Pt. 6 Div. 2A)419

Subdivision 4 — Appeals from State Administrative Tribunal

656.Appeals to Supreme Court (1996 Act Pt. 6 Div. 3)419

Division 6 — Protection of patient’s rights

657.Interview with psychiatrist requested by patient (1996 Act s. 164)420

658.Personal possessions left at authorised hospital (1996 Act s. 165(3))420

659.Order restricting or denying patient’s rights (1996 Act s. 169)420

660.Application for review of order restricting or denying patient’s right (1996 Act s. 170)421

Division 7 — Community support services

661.Funding and services agreements (1996 Act s. 174)421

Division 8 — Council of Official Visitors

662.Matters generally421

663.Request for visit by official visitor (1996 Act s. 189)422

664.Exercise of powers by official visitors and panels (1996 Act s. 190)422

665.Reports requested by Minister (1996 Act s. 192(2))422

666.Final report about activities of official visitors (1996 Act s. 192(3))423

667.Records of Council of Official Visitors424

Division 9 — Other matters under 1996 Act

668.Person taken into protective custody (1996 Act s. 195)424

669.Examination of person arrested (1996 Act s. 196)424

670.Things seized by police officer (1996 Act s. 197)425

671.Review of determination of capacity to vote (1996 Act s. 203)425

672.Records of patients (1996 Act s. 204)425

673.Request for information about patient or person detained (1996 Act s. 205)425

674.Inquiries (1996 Act Pt. 10 Div. 5)426

675.Rectification of referrals and orders (1996 Act s. 212)426

Division 10 — Miscellaneous matters

676.Transitional regulations426

677.Interpretation Act 1984 not affected428

Schedule 1 — Charter of Mental Health Care Principles

Schedule 2 — Notifiable events

Notes

Compilation table435

Other notes435

Defined terms

 

Mental Health Act 2014

An Act —

·to provide for the treatment, care, support and protection of people who have a mental illness; and

·to provide for the protection of the rights of people who have a mental illness; and

·to provide for the recognition of the role of carers and families in providing care and support to people who have a mental illness,

and for related purposes.

 

 

Part 1 — Preliminary matters

1.Short title

This is the Mental Health Act 2014 1.

2.Commencement

This Act comes into operation as follows —

(a)sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b)the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions1.

3.Act binds Crown

This Act binds the State and, so far as the legislative power of the State permits, the Crown in all its other capacities.

Part 2 — Terms and concepts

Division 1 — Definitions and notes

4.Terms used

In this Act, unless the contrary intention appears —

admission, of a patient, means the admission of the patient by a mental health service, whether the patient is admitted as an inpatient or otherwise;

adult means a person who has reached 18 years of age;

advance health directive means any of the following —

(a)an advance health directive made under the GAA Act Part 9B;

(b)an instrument recognised as such under the GAA Act section 110ZA;

(c)a directive given by a patient under the common law containing treatment decisions in respect of the patient’s future treatment;

Agency means the agency (as defined in the Public Sector Management Act 1994 section 3(1)) principally assisting the Minister in administering this Act;

approved form means a form approved by the Chief Psychiatrist under section 545(1);

authorised hospital has the meaning given in section 541;

authorised mental health practitioner means an authorised mental health practitioner designated as such by an order in force under section 539;

bodily restraint has the meaning given in section 227;

carer, of a person, has the meaning given in section 280(1);

CEO means the chief executive officer of the Agency;

CEO of the Health Department means the chief executive officer of the Health Department;

Charter of Mental Health Care Principles means the Charter of Mental Health Care Principles in Schedule 1;

Chief Mental Health Advocate means the Chief Mental Health Advocate appointed under section 349;

Chief Psychiatrist means the Chief Psychiatrist appointed under section 508(1);

child means a person who is under 18 years of age;

child and adolescent psychiatrist means a psychiatrist who has qualifications and clinical training in the treatment of mental illness in children;

close family member, of a person, has the meaning given in section 281(1);

community mental health service means a service that conducts assessments or examinations for the purposes of this Act or provides treatment in the community, but does not include the private practice of a medical practitioner or other health professional;

community treatment order has the meaning given in section 23(1);

Director of the Complaints Office means the Director as defined in section 305;

discharge, of a patient, means the discharge of the patient by a mental health service, whether the patient was admitted as an inpatient or otherwise;

document has the meaning given in the Evidence Act 1906 section 79B;

electroconvulsive therapy has the meaning given in section 192;

emergency psychiatric treatment has the meaning given in section 202;

enduring guardian, of an adult, means the person’s enduring guardian as defined in the GAA Act section 3(1);

enduring power of guardianship means —

(a)an enduring power of guardianship made under the GAA Act Part 9A; or

(b)an instrument recognised as such under the GAA Act section 110O;

file, in relation to an order, record or other document relating to a patient or other person, means to put the order, record or other document on the patient’s or other person’s medical record;

GAA Act means the Guardianship and Administration Act 1990;

general hospital means a hospital (as defined in the Health Services Act 2016 section 6) where overnight accommodation is provided to patients other than any of these hospitals —

(a)an authorised hospital;

(b)a maternity home;

(c)a nursing home;

guardian, of an adult, means the person’s guardian as defined in the GAA Act section 3(1);

Health Department means the agency (as defined in the Public Sector Management Act 1994 section 3(1)) principally assisting the Health Minister in the administration of the Health Legislation Administration Act 1984;

Health Minister means the Minister responsible for the administration of the Health Legislation Administration Act 1984;

health professional means —

(a)a medical practitioner; or

(b)a nurse; or

(c)an occupational therapist; or

(d)a psychologist; or

(e)a social worker; or

(f)in relation to a person who is of Aboriginal or Torres Strait Islander descent —

(i)a health professional listed in paragraphs (a) to (e); or

(ii)an Aboriginal or Torres Strait Islander mental health worker;

hospital means —

(a)an authorised hospital; or

(b)a general hospital;

informed consent, to the provision of treatment, means consent to the provision of the treatment given in accordance with Part 5 Division 2;

inpatient treatment order has the meaning given in section 22(1);

involuntary community patient means a person who is under a community treatment order;

involuntary inpatient means a person who is under an inpatient treatment order;

involuntary patient has the meaning given in section 21(1);

involuntary treatment order has the meaning given in section 21(2);

legal practitioner means an Australian legal practitioner as defined in the Legal Profession Act 2008 section 3;

medical practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession;

mental health advocate means —

(a)the Chief Mental Health Advocate; or

(b)a mental health advocate engaged under section 350(1);

mental health practitioner has the meaning given in section 538;

mental health service —

(a)means any of these services —

(i)a hospital, but only to the extent that the hospital provides treatment or care to people who have or may have a mental illness;

(ii)a community mental health service;

(iii)any service, or any service in a class of service, prescribed by the regulations for this definition;

and

(b)does not include —

(i)a private psychiatric hostel; or

(ii)a declared place as defined in the MIA Act section 23;

Mental Health Tribunal means the Mental Health Tribunal established by section 380;

mental illness has the meaning given in section 6;

mentally impaired accused has the meaning given in the MIA Act section 23;

Mentally Impaired Accused Review Board means the Mentally Impaired Accused Review Board established by the MIA Act section 41;

metropolitan area means an area of the State prescribed by the regulations as a metropolitan area;

MIA Act means the Criminal Law (Mentally Impaired Accused) Act 1996;

Minister means the Minister responsible for the administration of this Act;

neurosurgeon means a person —

(a)whose name is contained in the register of specialist surgeons kept by the Medical Board of Australia under the Health Practitioner Regulation National Law (Western Australia) section 223; and

(b)who has clinical training in neurosurgery;

nominated person, of a person, means the person nominated under section 273(1) to be the person’s nominated person;

nomination means a nomination made under section 273(1);

nurse means a person who is registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing profession —

(a)whose name is entered on Division 1 of the Register of Nurses kept under that Law as a registered nurse; or

(b)whose name is entered on Division 2 of the Register of Nurses kept under that Law as an enrolled nurse;

occupational therapist means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the occupational therapy profession;

parent or guardian, of a child, means the person who has parental responsibility (as defined in the Family Court Act 1997 section 68) for the child;

patient means —

(a)an involuntary patient; or

(b)a mentally impaired accused required under the MIA Act to be detained at an authorised hospital; or

(c)a voluntary patient;

patient’s psychiatrist means —

(a)if the patient is a voluntary patient — the treating psychiatrist; or

(b)if the patient is an involuntary patient who is under an inpatient treatment order — the treating psychiatrist; or

(c)if the patient is an involuntary patient who is under a community treatment order — the supervising psychiatrist; or

(d)if the patient is a mentally impaired accused required under the MIA Act to be detained at an authorised hospital — the treating psychiatrist;

personal information has the meaning given in the Freedom of Information Act 1992 in the Glossary clause 1;

personal support person, of a person, means a person referred to in section 7(2)(b)(i), (ii), (iii), (iv) or (v);

private hospital has the meaning given in the Private Hospitals and Health Services Act 1927 section 2(1);

private psychiatric hostel has the meaning given in the Hospitals and Health Services Act 1927 section 26P;

psychiatrist means a medical practitioner who is —

(a)a Fellow of the Royal Australian and New Zealand College of Psychiatrists; or

(b)a person, or a person in a class of person, prescribed by the regulations for this definition;

psychologist means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the psychology profession;

psychosurgery has the meaning given in section 205;

public hospital has the meaning given in the Health Services Act 2016 section 6;

registration board has the meaning given in the Health and Disability Services (Complaints) Act 1995 section 3(1);

remuneration has the meaning given in the Salaries and Allowances Act 1975 section 4(1);

seclusion has the meaning given in section 212;

social worker means a person who is a member of, or is eligible for membership of, the Australian Association of Social Workers;

staff member, of a mental health service (however defined in this Act) or a private psychiatric hostel, means a person —

(a)who is employed in the mental health service or private psychiatric hostel under a contract of employment or contract of training; or

(b)who provides services to the mental health service or private psychiatric hostel under a contract for services;

supervising psychiatrist has the meaning given in section 113;

traditional healer, in relation to an Aboriginal or Torres Strait Islander community, means a person of Aboriginal or Torres Strait Islander descent who —

(a)uses traditional (including spiritual) methods of healing; and

(b)is recognised by the community as a traditional healer;

transport officer means a person, or a person in a class of person, authorised under section 147 to a carry out a transport order;

treating psychiatrist, in relation to a patient, means the psychiatrist who is in charge of the patient’s treatment;

treatment means the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation;

treatment decision, in relation to a person, means a decision to give consent, or to refuse to give consent, to treatment being provided to the person;

treatment in the community means treatment that can be provided to a patient without detaining the patient at a hospital under an inpatient treatment order;

treatment, support and discharge plan has the meaning given in section 186;

voluntary inpatient means a voluntary patient who is admitted by a mental health service as an inpatient;

voluntary patient means a person to whom treatment is being, or is proposed to be, provided by a mental health service but who is not —

(a)an involuntary patient; or

(b)a mentally impaired accused required under the MIA Act to be detained at an authorised hospital.

Note for this definition:

A voluntary patient can also be —

(a)a person who is referred under section 26(2) or (3)(a) or 36(2) or is under an order made under section 55(1)(c) or 61(1)(c); or

(b)a mentally impaired accused who is released from an authorised hospital (whether unconditionally or on conditions) under a release order made under the MIA Act section 35.

[Section 4 amended: No. 36 of 2015 s. 4; No. 11 of 2016 s. 296(2)-(4); No. 4 of 2018 s. 114.]

5.Notes and examples not part of Act

A note or example set out at the foot of a provision of this Act is provided to assist understanding and does not form part of this Act.

Division 2 — Mental illness

6.When person has a mental illness

(1)A person has a mental illness if the person has a condition that —

(a)is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and

(b)significantly impairs (temporarily or permanently) the person’s judgment or behaviour.

(2)A person does not have a mental illness merely because one or more of these things apply —

(a)the person holds, or refuses or fails to hold, a particular religious, cultural, political or philosophical belief or opinion;

(b)the person engages in, or refuses or fails to engage in, a particular religious, cultural or political activity;

(c)the person is, or is not, a member of a particular religious, cultural or racial group;

(d)the person has, or does not have, a particular political, economic or social status;

(e)the person has a particular sexual preference or orientation;

(f)the person is sexually promiscuous;

(g)the person engages in indecent, immoral or illegal conduct;

(h)the person has an intellectual disability;

(i)the person uses alcohol or other drugs;

(j)the person is involved in, or has been involved in, personal or professional conflict;

(k)the person engages in anti‑social behaviour;

(l)the person has at any time been —

(i)provided with treatment; or

(ii)admitted by or detained at a hospital for the purpose of providing the person with treatment.

(3)Subsection (2)(i) does not prevent the serious or permanent physiological, biochemical or psychological effects of the use of alcohol or other drugs from being regarded as an indication that a person has a mental illness.

(4)A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.

Division 3 — Best interests of a person

7.Matters relevant to decision about person’s best interests

(1)This section applies whenever a person or body is required under this Act to decide what is or is not in the best interests of a person.

(2)The person or body making the decision must have regard to these things —

(a)the person’s wishes, to the extent that it is practicable to ascertain those wishes;

(b)the views of each of these people —

(i)if the person has an enduring guardian or guardian — the enduring guardian or guardian;

(ii)if the person is a child — the child’s parent or guardian;

(iii)if the person has a nominated person — the nominated person;

(iv)if the person has a carer — the carer;

(v)if the person has a close family member — the close family member;

(c)any other matter that the person or body considers relevant to making the decision.

Division 4 — Wishes of a person

8.Matters relevant to ascertaining person’s wishes

(1)This section applies whenever a person or body is required under this Act to ascertain the wishes of a person in relation to a matter.

(2)For the purposes of ascertaining those wishes, the person or body must have regard to the following —

(a)any treatment decision in an advance health directive made by the person that is relevant to the matter;

(b)any term of an enduring power of guardianship made by the person that is relevant to the matter;

(c)anything that the person says or does that is relevant to the matter if it is said or done at a time that is reasonably contemporaneous with when those wishes are required to be ascertained;

(d)any other things that the person or body considers relevant to ascertaining those wishes.

Division 5 — Communicating with a person

9.Language, form of communication and terms to be used

(1)For this section, communication with a person includes the provision to a person of any advice, explanation, information, notification or reasons.

(2)Any communication with a person under this Act must be in a language, form of communication and terms that the person is likely to understand using any means of communication that is practicable and using an interpreter if necessary and practicable.

Part 3  Objects

10.Objects

(1)The objects of this Act are as follows —

(a)to ensure people who have a mental illness are provided the best possible treatment and care —

(i)with the least possible restriction of their freedom; and

(ii)with the least possible interference with their rights; and

(iii)with respect for their dignity;

(b)to recognise the role of carers and families in the treatment, care and support of people who have a mental illness;

(c)to recognise and facilitate the involvement of people who have a mental illness, their nominated persons and their carers and families in the consideration of the options that are available for their treatment and care;

(d)to help minimise the effect of mental illness on family life;

(e)to ensure the protection of people who have or may have a mental illness;

(f)to ensure the protection of the community.

(2)A person or body performing a function under this Act must have regard to those objects.

Part 4 — Charter of Mental Health Care Principles

11.Regard to be had to Charter

A person or body performing a function under this Act must have regard to the principles set out in the Charter of Mental Health Care Principles.

12.Compliance with Charter by mental health services

(1)In this section —

mental health service includes a private psychiatric hostel.

(2)A mental health service must make every effort to comply with the Charter of Mental Health Care Principles when providing treatment, care and support to patients.

Part 5 — Decision making capacity and informed consent

Division 1 — Decision making capacity generally

13.Capacity of adult to make decisions

(1)For the purposes of this Act, an adult is presumed to have the capacity to make a decision about a matter relating to himself or herself unless the adult is shown not to have that capacity.

(2)For the purposes of this Act, if an adult does not have the capacity to make a decision about a matter relating to himself or herself, the person who is authorised by law to do so may make the decision on the adult’s behalf.

14.Capacity of child to make decisions

(1)For the purposes of this Act, a child is presumed not to have the capacity to make a decision about a matter relating to himself or herself unless the child is shown to have that capacity.

(2)For the purposes of this Act, if a child does not have the capacity to make a decision about a matter relating to himself or herself, the child’s parent or guardian may make the decision on the child’s behalf.

15.Determining capacity to make decisions

(1)For the purposes of this Act, a person has the capacity to make a decision about a matter relating to himself or herself if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to —

(a)understand any information or advice about the decision that is required under this Act to be provided to the person; and

(b)understand the matters involved in the decision; and

(c)understand the effect of the decision; and

(d)weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the decision; and

(e)communicate the decision in some way.

(2)For the purposes of this Act, a decision made by a person about a matter relating to himself or herself must be made freely and voluntarily.

Division 2 — Informed consent to treatment

16.Requirements for informed consent

(1)A person gives informed consent to the provision of treatment to a patient (whether he or she or another person is the patient) only if —

(a)the requirements of this Division in relation to making a treatment decision about the provision of the treatment are satisfied; and

(b)the consent is given freely and voluntarily.

(2)Failing to offer resistance does not by itself constitute giving consent.

17.People who can give informed consent

Informed consent to the provision of treatment to a patient can be given by —

(a)the patient; or

(b)if the patient does not have the capacity to make a treatment decision about the provision of the treatment to himself or herself — the person who is authorised by law to make the treatment decision on the patient’s behalf.

Notes for this section:

1.An adult can give informed consent by making an advance health directive (see the GAA Act section 110ZJ(2)).

2.An adult’s enduring guardian or guardian, or the person responsible for an adult, can give informed consent on the adult’s behalf (see the GAA Act section 110ZJ(3) to (5)).

3.A child’s parent or guardian can give informed consent on the child’s behalf unless the child has the capacity to give informed consent (see section 302(3)).

18.Determining capacity to make treatment decision

A person has the capacity to make a treatment decision about the provision of treatment to a patient if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to —

(a)understand the things that are required under section 19 to be communicated to the person about the treatment; and

(b)understand the matters involved in making the treatment decision; and

(c)understand the effect of the treatment decision; and

(d)weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the treatment decision; and

(e)communicate the treatment decision in some way.

19.Explanation of proposed treatment must be given

(1)Before a person is asked to make a treatment decision about the provision of treatment to a patient, the person must be provided with a clear explanation of the treatment —

(a)containing sufficient information to enable the person to make a balanced judgment about the treatment; and

(b)identifying and explaining any alternative treatment about which there is insufficient knowledge to justify it being recommended or to enable its effect to be predicted reliably; and

(c)warning the person of any risks inherent in the treatment.

(2)The extent of the information required under subsection (1) to be provided to a person is limited to information that a reasonable person in the person’s position would be likely to consider significant to the treatment decision unless the person providing the information knows, or could reasonably have been expected to know, that the person is likely to consider other information to be significant to the treatment decision.

(3)Subsection (1) applies despite any privilege claimed by a person.

Note for this section:

Any explanation provided under section 19(1) must be provided in accordance with section 9(2).

20.Sufficient time for consideration

A person cannot be asked to make a treatment decision about the provision of treatment to a patient unless the person is given —

(a)sufficient time to consider the matters involved in the treatment decision; and

(b)a reasonable opportunity to discuss those matters with the health professional who is proposing the provision of the treatment; and

(c)a reasonable opportunity to obtain any other advice or assistance in relation to the treatment decision that the person wishes.

Part 6 — Involuntary patients

Division 1 — When a person will be an involuntary patient

21.Involuntary patient

(1)An involuntary patient is a person who is under an involuntary treatment order.

(2)An involuntary treatment order is —

(a)an inpatient treatment order; or

(b)a community treatment order.

22.Inpatient treatment order

(1)An inpatient treatment order is an order in force under this Act under which a person can be admitted by a hospital, and detained there, to enable the person to be provided with treatment without informed consent being given to the provision of the treatment.

(2)An inpatient treatment order authorising a person’s detention at an authorised hospital may be made under section 55(1)(a), 56(1)(a)(i), 72(1)(a), 120(2)(a), 123(1)(a) or 131(2)(a).

(3)An inpatient treatment order authorising a person’s detention at a general hospital may be made under section 61(1)(a) or 131(2)(a).

23.Community treatment order

(1)A community treatment order is an order in force under this Act under which a person can be provided with treatment in the community without informed consent being given to the provision of the treatment.

(2)A community treatment order may be made under section 55(1)(b), 56(1)(a)(ii), 61(1)(b), 72(1)(b), 75(1), 89(2)(b) or 90(1)(a).

24.Making involuntary treatment order

(1)Only a psychiatrist may make an involuntary treatment order.

(2)A psychiatrist cannot make an involuntary treatment order except in accordance with this Act.

(3)A psychiatrist cannot make an inpatient treatment order in respect of a person unless satisfied, having regard to the criteria specified in section 25(1), that the person is in need of an inpatient treatment order.

(4)Before deciding whether or not to make an inpatient treatment order in respect of a person, a psychiatrist must consider whether the objects of this Act would be better achieved by making a community treatment order in respect of the person.

(5)A psychiatrist cannot make a community treatment order in respect of a person unless satisfied, having regard to the criteria specified in section 25(2), that the person is in need of a community treatment order.

(6)An involuntary treatment order made in respect of a person must —

(a)be in force for as brief a period as practicable; and

(b)be reviewed regularly; and

(c)be revoked as soon as practicable after the person no longer meets the criteria for the order.

25.Criteria for involuntary treatment order

(1)A person is in need of an inpatient treatment order only if all of these criteria are satisfied —

(a)that the person has a mental illness for which the person is in need of treatment;

(b)that, because of the mental illness, there is —

(i)a significant risk to the health or safety of the person or to the safety of another person; or

(ii)a significant risk of serious harm to the person or to another person;

(c)that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;

(d)that treatment in the community cannot reasonably be provided to the person;

(e)that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person’s freedom of choice and movement than making an inpatient treatment order.

(2)A person is in need of a community treatment order only if all of these criteria are satisfied —

(a)that the person has a mental illness for which the person is in need of treatment;

(b)that, because of the mental illness, there is —

(i)a significant risk to the health or safety of the person or to the safety of another person; or

(ii)a significant risk of serious harm to the person or to another person; or

(iii)a significant risk of the person suffering serious physical or mental deterioration;

(c)that the person does not demonstrate the capacity required by section 18 to make a treatment decision about the provision of the treatment to himself or herself;

(d)that treatment in the community can reasonably be provided to the person;

(e)that the person cannot be adequately provided with treatment in a way that would involve less restriction on the person’s freedom of choice and movement than making a community treatment order.

(3)A decision whether or not a person is in need of an inpatient treatment order or a community treatment order must be made having regard to the guidelines published under section 547(1)(a) for that purpose.

Note for this Division:

Part 21 Division 3 confers jurisdiction on the Mental Health Tribunal to conduct reviews relating to involuntary patients.

Division 2 — Referrals for examination

Subdivision 1 — Person suspected of needing involuntary treatment order

26.Referral for examination at authorised hospital or other place

(1)A medical practitioner or authorised mental health practitioner may refer a person under subsection (2) or (3)(a) for an examination conducted by a psychiatrist if, having regard to the criteria specified in section 25, the practitioner reasonably suspects that —

(a)the person is in need of an involuntary treatment order; or

(b)if the person is under a community treatment order — the person is in need of an inpatient treatment order.

(2)The practitioner may refer the person for an examination to be conducted by a psychiatrist at an authorised hospital.

(3)The practitioner —

(a)may refer the person for an examination to be conducted by a psychiatrist at a place that is not an authorised hospital if, in the practitioner’s opinion, it is an appropriate place to conduct the examination having regard to the guidelines published under section 547(1)(b) for that purpose; and

(b)if the practitioner refers the person under paragraph (a) — must make any arrangements that are necessary to enable the examination to be conducted at that place.

(4)Subdivision 3 applies in relation to the referral of a person under subsection (2) or (3)(a).

(5)Sections 27 to 30 apply in relation to a person who is referred under subsection (2) or (3)(a).

Notes for this section:

1.A person who is referred under section 26(2) or (3)(a) can be detained under an order made under section 28(1) or (2) to enable the person to be taken to the authorised hospital or other place and can be detained there under section 52(1)(b) or 58(1)(b) to enable the person to be examined.

2.Part 7 Division 4 applies in relation to the release of a person who is detained under section 28(1) or (2), 52(1)(b) or 58(1)(b).

3.Part 7 Division 5 applies if a person who is detained under section 28(1) or (2), 52(1)(b) or 58(1)(b) is absent without leave from the authorised hospital or other place where the person is be detained.

27.Person to be taken to authorised hospital or other place as soon as practicable

The person must be taken to the authorised hospital or other place as soon as practicable and, in any event, before the referral expires, whether or not a transport order is made under section 29(1) in respect of the person.

28.Detention to enable person to be taken to authorised hospital or other place

(1)A medical practitioner or authorised mental health practitioner may make an order authorising the person’s detention for up to 24 hours from the time when the order is made if satisfied that the person needs to be detained to enable the person to be taken to the authorised hospital or other place.

(2)A medical practitioner or authorised mental health practitioner may, immediately before the end of the period of detention authorised under subsection (1) or any further period of detention authorised under this subsection in respect of the person, make an order authorising the continuation of the person’s detention for up to 24 hours from the end of that period to enable the person to be taken to the authorised hospital or other place.

(3)The person cannot be detained under orders made under this section for a continuous period of more than —

(a)if the place where the referral is made is in a metropolitan area — 72 hours; or

(b)if the place where the referral is made is outside a metropolitan area — 144 hours.

(4)A practitioner cannot make an order under subsection (2) in respect of the person unless —

(a)immediately before making the order, the practitioner assesses the person; and

(b)as a consequence, the practitioner is satisfied that the person still needs to be detained to enable the person to be taken to the authorised hospital or other place.

(5)Subdivision 4 applies in relation to an assessment required by subsection (4)(a).

(6)An order made under this section must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the date and time when it expires;

(c)the reasons for making it;

(d)the name, qualifications and signature of the practitioner making it.

(7)A practitioner who makes an order under this section in respect of the person must, as soon as practicable, file it and give a copy to the person.

(8)The making of an order under this section is an event to which Part 9 applies and the practitioner who makes the order is the person responsible under that Part for notification of that event.

(9)A practitioner who makes an order under this section in respect of the person must ensure that the person has the opportunity and the means to contact any carer, close family member or other personal support person of the person, a health professional who is currently providing the person with treatment and the Chief Mental Health Advocate —

(a)as soon as practicable after the order is made; and

(b)at all reasonable times while the person is detained under the order.

(10)The person cannot continue to be detained if, by the end of a period of detention authorised under this section in respect of the person —

(a)the person has not been taken to the authorised hospital or other place; and

(b)an order under subsection (2) authorising the continuation of the person’s detention from the end of the period has not been made or, because of subsection (3), cannot be made; and

(c)the person has not been apprehended under a transport order made under section 29(1).

(11)The person cannot continue to be detained if the referral expires before the person is taken to the authorised hospital or other place.

(12)The release of a person because of subsection (10) or (11) is an event to which Part 9 applies and a medical practitioner or authorised mental health practitioner is the person responsible under that Part for notification of that event.

29.Making transport order

(1)A medical practitioner or authorised mental health practitioner may make a transport order in respect of the person.

(2)The practitioner cannot make the transport order unless satisfied that —

(a)the person needs to be taken to the authorised hospital or other place; and

(b)no other safe means of taking the person is reasonably available.

(3)Part 10 applies in relation to the transport order.

(4)The making of a transport order under subsection (1) is an event to which Part 9 applies and the practitioner who makes the order is the person responsible under that Part for notification of that event.

30.Effect of referral on community treatment order

A community treatment order that is in force in respect of a person who is referred under section 26(2) or (3)(a) is suspended for the period —

(a)beginning when the referral is made; and

(b)ending when the first of these things occurs —

(i)a psychiatrist makes an order under section 55(1)(a) or (d), 56(1)(a)(i) or (iii), 61(1)(a) or (d) or 72(1)(a) or (c) in respect of the person;

(ii)the referral is revoked under section 31(1);

(iii)the person cannot continue to be detained because section 28(10) or (11), 52(4), 58(4) or 70(4) applies.

Notes for this section:

1.A community treatment order that the patient is under is automatically revoked under section 116(b) if a psychiatrist makes an inpatient treatment order under section 55(1)(a), 56(1)(a)(i), 61(1)(a) or 72(1)(a) in respect of the involuntary community patient.

2.A community treatment order is no longer suspended if a psychiatrist makes an order under section 55(1)(d), 56(1)(a)(iii), 61(1)(d) or 72(1)(c) that the involuntary community patient cannot continue to be detained.

3.A community treatment order remains suspended until the period of the suspension ends under section 30(b), or until the community treatment order is revoked under section 120(2)(b) or 131(2)(b), if a psychiatrist makes an order under section 61(1)(c) in respect of the involuntary community patient.

31.Revoking referral

(1)A medical practitioner or authorised mental health practitioner may make an order revoking a referral made under section 26(2) or (3)(a) if satisfied that the person who is referred is no longer in need of an involuntary treatment order.

(2)The practitioner cannot revoke the referral if it was made by another practitioner unless —

(a)the practitioner has consulted the other practitioner about whether or not to revoke the referral; or

(b)despite reasonable efforts to do so, the other practitioner could not be contacted.

(3)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for making it;

(c)if the other practitioner was consulted — a record of the consultation;

(d)if the other practitioner could not be contacted — a record of the efforts made to do so;

(e)the name, qualifications and signature of the practitioner.

(4)The practitioner must, as soon as practicable, file the order and give a copy to the person.

(5)The practitioner must, as soon as practicable —

(a)advise the transport officer or police officer responsible for carrying out any transport order made under section 29(1) in respect of the person that the referral has been revoked under subsection (1) and that therefore the transport order has been revoked under section 153; and

(b)file a record of that advice.

(6)The person cannot continue to be detained if the referral is revoked under subsection (1).

(7)The release of a person because of subsection (6) is an event to which Part 9 applies and the practitioner who revokes the referral is the person responsible under that Part for notification of that event.

Subdivision 2 — Voluntary inpatient admitted by authorised hospital

32.Application of this Subdivision

This Subdivision applies in relation to a voluntary inpatient who is admitted by an authorised hospital.

33.Effect of admission on community treatment order

Any community treatment order in force in respect of the voluntary inpatient is suspended for the period —

(a)beginning when the voluntary inpatient is admitted as an inpatient by the authorised hospital; and

(b)ending when the first of these things occurs —

(i)a psychiatrist makes an order under section 55(1)(a) or 56(1)(a)(i);

(ii)the voluntary inpatient is discharged as an inpatient by the authorised hospital.

Notes for this section:

1.A community treatment order is automatically revoked under section 116(b) if a psychiatrist makes an inpatient treatment order under section 55(1)(a) or 56(1)(a)(i) in respect of the voluntary inpatient.

2.A community treatment order can be revoked under section 120(2)(b) or 131(2)(b).

34.Person in charge of ward may order assessment

(1)The person in charge of the voluntary inpatient’s ward may make an order for an assessment of the voluntary inpatient by a medical practitioner or authorised mental health practitioner at the authorised hospital if —

(a)the voluntary inpatient wants to leave the authorised hospital against medical advice; and

(b)having regard to the criteria specified in section 25, the person in charge reasonably suspects that the voluntary inpatient is in need of an involuntary treatment order.

(2)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for making it;

(c)the name, qualifications and signature of the person in charge.

(3)The voluntary inpatient can be detained under the order at the authorised hospital for up to 6 hours from the time when the order was made to enable the assessment to be conducted.

(4)The person in charge of the voluntary inpatient’s ward must, as soon as practicable, file the order and give a copy to the voluntary patient.

(5)The person in charge of the voluntary inpatient’s ward must ensure that the inpatient has the opportunity and the means to contact any carer, close family member or other personal support person of the inpatient, a health professional who is currently providing the inpatient with treatment and the Chief Mental Health Advocate —

(a)as soon as practicable after the order is made; and

(b)at all reasonable times while the voluntary inpatient is detained under the order.

(6)Subdivision 4 applies in relation to an assessment ordered under subsection (1).

(7)The voluntary inpatient cannot continue to be detained if, by the end of the 6‑hour period referred to in subsection (3) —

(a)the assessment has not been completed; or

(b)the assessment has been completed but a referral has not been made under section 36(2) in respect of the voluntary inpatient.

35.Revoking order for assessment

(1)The person who makes an order under section 34(1) for an assessment of a voluntary inpatient may, at any time before the assessment is commenced, make an order revoking the order for an assessment if satisfied that the patient is no longer in need of an involuntary treatment order.

(2)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for making it;

(c)the name, qualifications and signature of the person.

(3)The person who makes the order must, as soon as practicable, file it and give a copy to the voluntary patient.

(4)The voluntary inpatient cannot continue to be detained if the order for an assessment is revoked under subsection (1).

36.Referral for examination at authorised hospital

(1)This section applies if the voluntary inpatient is assessed by a medical practitioner or authorised mental health practitioner —

(a)because of an order made under section 34(1); or

(b)in the course of the voluntary inpatient’s treatment while admitted by the authorised hospital.

(2)The practitioner may refer the voluntary inpatient for an examination to be conducted by a psychiatrist at the authorised hospital if, having regard to the criteria specified in section 25, the practitioner reasonably suspects that the inpatient is in need of an involuntary treatment order.

(3)Subdivision 3 applies in relation to the referral of a voluntary inpatient under subsection (2).

Notes for this section:

1.A voluntary patient who is referred under section 36(2) can be detained at the authorised hospital under section 53(1) to enable the voluntary patient to be examined.

2.Part 7 Division 4 applies in relation to the release of a voluntary patient who is detained under section 53(1).

3.Part 7 Division 5 applies if a voluntary patient who is detained under section 53(1) is absent without leave from the authorised hospital where the voluntary patient is detained.

37.Revoking referral

(1)A medical practitioner or authorised mental health practitioner may make an order revoking a referral made under section 36(2) if satisfied that the voluntary inpatient who is referred is no longer in need of an involuntary treatment order.

(2)The practitioner cannot revoke the referral if it was made by another practitioner unless —

(a)the practitioner has consulted the other practitioner about whether or not to revoke the referral; or

(b)despite reasonable efforts to do so, the other practitioner could not be contacted.

(3)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for the revocation;

(c)if the other practitioner was consulted — a record of the consultation;

(d)if the other practitioner could not be contacted — a record of the efforts made to do so;

(e)the name, qualifications and signature of the practitioner making it.

(4)The practitioner must, as soon as practicable, file the order and give a copy to the voluntary patient.

(5)The voluntary inpatient cannot continue to be detained if the referral is revoked under subsection (1).

Subdivision 3 — Requirements for referral

38.Application of this Subdivision

This Subdivision applies in relation to the referral of a person for an examination conducted by a psychiatrist that is made by a medical practitioner or authorised mental health practitioner under section 26(2) or (3)(a) or 36(2).

39.No referral without assessment

(1)A practitioner cannot refer a person unless the practitioner has assessed the person.

(2)Subdivision 4 applies in relation to an assessment required by subsection (1).

40.Time limit for making referral

(1)A referral cannot be made under section 26(2) or (3)(a) more than 48 hours after the time when the assessment required by section 39(1) is completed.

(2)A referral can only be made under section 36(2) immediately after the time when the assessment required by section 39(1) is completed.

41.Form of referral

A referral must be in the approved form and must —

(a)include the following —

(i)the date and time when it is made;

(ii)the date and time when it will expire;

(iii)the place where it is made;

(iv)whether or not it can be extended under section 45 and, if it can, the process for extending it;

(v)the place where the examination will be conducted;

(vi)the date and time when the assessment required by section 39(1) was completed;

and

(b)certify that, having regard to the criteria specified in section 25, the practitioner making it reasonably suspects that the person who is referred is in need of an involuntary treatment order; and

(c)include the information on which the suspicion is based; and

(d)in respect of so much of that information as was obtained during the assessment by the practitioner making the referral, distinguish between —

(i)the information obtained from the person who is referred, including by observing the person and asking the person questions; and

(ii)the information obtained from another person or from the person’s medical record;

and

(e)include the name, qualifications and signature of the practitioner making the referral.

42.Providing information contained in referral to person referred

(1)The practitioner must provide the person who is referred with the information referred to in section 41(a) and (b) and, unless subsection (2) applies, the information referred to in section 41(c).

(2)The practitioner cannot provide the person who is referred any information referred to in section 41(c) that was provided to the practitioner by someone other than the person on condition that the information not be provided to the person.

(3)The information provided under subsection (1) must be in the approved form.

43.Copy of referral must be filed

The practitioner must file a copy of the referral.

44.Period of referral made under s. 26(2) or (3)(a)

A referral made under section 26(2) or (3)(a) remains in force for 72 hours from the time when the referral was made unless the referral is extended under section 45.

45.Extending referral made outside metropolitan area

(1)This section applies if —

(a)the place where a referral is made under section 26(2) or (3)(a) is outside a metropolitan area; and

(b)the person responsible for taking the person who is referred to the place where the examination will be conducted forms the opinion that the referral is likely to expire before the person is received into the hospital or other place.

(2)The person responsible —

(a)may orally request an extension of the referral from —

(i)the medical practitioner or authorised mental health practitioner who made the referral; or

(ii)if the practitioner referred to in subparagraph (i) is not reasonably available — another medical practitioner or authorised mental health practitioner who is at the same place as the practitioner referred to in subparagraph (i); or

(iii)if neither the practitioner referred to in subparagraph (i) nor a practitioner referred to in subparagraph (ii) is reasonably available — another medical practitioner or authorised mental health practitioner;

or

(b)may extend the referral himself or herself if —

(i)there is no medical practitioner or authorised mental health practitioner reasonably available to whom an application could be made under paragraph (a); and

(ii)the person responsible is a medical practitioner or authorised mental health practitioner.

(3)The practitioner or person responsible may extend the referral if satisfied that the referral is likely to expire before the person is received into the authorised hospital or other place.

(4)The referral may be extended for a further period of 72 hours from the time when the 72‑hour period referred to in section 44 ends.

(5)The person who extends the referral must, as soon as practicable —

(a)record the extension in the approved form, specifying the following —

(i)the date and time when the referral was extended;

(ii)the date and time when, because of the extension, the referral will expire;

(iii)the reasons for the extension;

and

(b)file the record and give a copy to the person who is referred.

(6)The referral cannot be extended more than once.

46.Changing place where examination will be conducted

(1)A medical practitioner or authorised mental health practitioner may make an order changing the place specified in a referral made under section 26(2) or (3)(a) as the place where the examination will be conducted.

(2)The practitioner cannot change the place specified in the referral unless the practitioner has consulted a medical practitioner or authorised mental health practitioner at the place where, if the change is made, the examination will be conducted.

(3)The practitioner must, as soon as practicable —

(a)advise the person responsible for taking the person who is referred to the place where the examination will be conducted of the change; and

(b)record the change in the approved form, specifying —

(i)the date and time when the change was made; and

(ii)the place where the examination was to have been conducted; and

(iii)the place where, because of the change, the examination will be conducted;

and

(c)file the record and give a copy to the person who is referred.

(4)If, because of the change, the examination will be conducted at an authorised hospital instead of a place that is not an authorised hospital, this Act applies as if the referral had been made under section 26(2) instead of section 26(3)(a).

(5)If, because of the change, the examination will be conducted at a place that is not an authorised hospital instead of an authorised hospital, this Act applies as if the referral had been made under section 26(3)(a) instead of section 26(2).

Subdivision 4 — Conduct of assessment

47.Application of this Subdivision

This Subdivision applies in relation to the conduct of an assessment by a medical practitioner or authorised mental health practitioner that is required by, or has been ordered under, section 28(4)(a), 34(1), 39(1) or 62(4)(a).

48. 1MHow assessment must be conducted

(1)The assessment must be conducted in the least restrictive way, and the least restrictive environment, practicable.

(2)Unless subsection (3) applies, the practitioner and the person being assessed —

(a)must be in one another’s physical presence; or

(b)if that is not practicable — must be able to hear one another without using a communication device (for example, by being able to hear one another through a door).

(3)The practitioner may conduct the assessment using audiovisual communication if —

(a)the person being assessed is outside a metropolitan area; and

(b)it is not practicable for the practitioner to comply with subsection (2)(a) or (b); and

(c)a health professional and the person being assessed —

(i)are in one another’s physical presence; or

(ii)if that is not practicable — are able to hear one another without using a communication device (for example, by being able to hear one another through a door).

(4)For the purposes of this Act, an assessment conducted using audiovisual communication is taken to be conducted, and any referral made as a result is taken to be made, at the place where the person assessed is when the assessment is conducted.

[Section 48: modified by the COVID‑19 Response and Economic Recovery Omnibus Act 2020 (No. 34 of 2020) Part 4 Division 2. See endnote 1M.]

49.Information to which practitioner may have regard

(1)The practitioner may have regard to any information about the person being assessed that is obtained by the practitioner —

(a)from —

(i)the person, including information obtained by observing the person and asking the person questions; or

(ii)any other person;

and

(b)from the person’s medical record.

(2)The practitioner cannot conclude that there is a reasonable suspicion that the person being assessed is in need of an involuntary treatment order solely on the basis of information referred to in either or both of subsection (1)(a)(ii) and (b).

50.Assessment of person of Aboriginal or Torres Strait Islander descent

To the extent that it is practicable and appropriate to do so, the assessment of a person who is of Aboriginal or Torres Strait Islander descent must be conducted in collaboration with —

(a)Aboriginal or Torres Strait Islander mental health workers; and

(b)significant members of the person’s community, including elders and traditional healers.

Division 3 — Examinations

Subdivision 1 — Examination at authorised hospital

51.Application of this Subdivision

This Subdivision applies in relation to a person who is referred under section 26(2) or 36(2) for an examination to be conducted by a psychiatrist at an authorised hospital.

52.Detention for examination on referral made under s. 26(2)

(1)A person who is referred under section 26(2) —

(a)must be received into the authorised hospital unless subsection (2) applies; and

(b)can be detained there, to enable the examination to be conducted, for up to 24 hours from the time when the person is received.

(2)The person cannot be received into the authorised hospital if the referral has expired.

(3)The person in charge of the authorised hospital must ensure that the person has the opportunity and the means to contact any carer, close family member or other personal support person of the person, a health professional who is currently providing the person with treatment and the Chief Mental Health Advocate —

(a)as soon as practicable after the person is received into the authorised hospital; and

(b)at all reasonable times while the person is detained there under subsection (1)(b).

(4)The person cannot continue to be detained if, by the end of the 24‑hour period referred to in subsection (1)(b) —

(a)the examination has not been completed; or

(b)the examination has been completed but an order has not been made under section 55(1) in respect of the person.

(5)Reception at an authorised hospital under this section is not admission by the hospital under this Act.

53.Detention for examination on referral made under s. 36(2)

(1)A person who is referred under section 36(2) can be detained at the authorised hospital, to enable the examination to be conducted, for up to 24 hours from the time when —

(a)if section 36(1)(a) applies — the order for the assessment of the person was made under section 34(1); or

(b)if section 36(1)(b) applies — the person was referred under section 36(2).

(2)The person in charge of the authorised hospital must ensure that the person has the opportunity and the means to contact any carer, close family member or other personal support person of the person, a health professional who is currently providing the person with treatment and the Chief Mental Health Advocate —

(a)as soon as practicable after the person is detained under subsection (1) at the authorised hospital; and

(b)at all reasonable times while the person is detained there under subsection (1).

(3)The person cannot continue to be detained if, by the end of the 24‑hour period referred to in subsection (1)(a) or (b) —

(a)the examination has not been completed; or

(b)the examination has been completed but an order has not been made under section 55(1) in respect of the person.

54.Conducting examination

Subdivision 6 applies in relation to the conduct of the examination referred to in section 52(1)(b) or 53(1).

55.What psychiatrist must do on completing examination

(1)On completing the examination referred to in section 52(1)(b) or 53(1), the psychiatrist must make one of these orders —

(a)an inpatient treatment order authorising the person’s detention at the authorised hospital for the period specified in the order in accordance with section 87(a) or (b);

(b)a community treatment order in respect of the person;

(c)an order authorising the continuation of the person’s detention at the authorised hospital to enable a further examination to be conducted by a psychiatrist;

(d)an order that the person cannot continue to be detained.

(2)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)if it is made under subsection (1)(a), (b) or (c) — the reasons for making it;

(c)the name, qualifications and signature of the psychiatrist.

(3)The person can continue to be detained at the authorised hospital under an order made under subsection (1)(c) for the period specified in the order, which cannot exceed 72 hours from the time when the person was —

(a)received into the authorised hospital under section 52(1)(a); or

(b)detained at the authorised hospital under section 53(1).

(4)An order made under subsection (1)(c) cannot be extended.

(5)The psychiatrist must, as soon as practicable, file the order made under subsection (1) and give a copy to the person.

(6)The making of an order under subsection (1) is an event to which Part 9 applies and the person in charge of the authorised hospital is the person responsible under that Part for notification of that event.

Notes for this section:

1.A community treatment order in respect of an involuntary community patient who is referred under section 26(2) or 36(2) is automatically revoked under section 116(b) if a psychiatrist makes an inpatient treatment order under section 55(1)(a) in respect of the involuntary community patient.

2.Part 7 Division 4 applies in relation to the release of a person who is detained at an authorised hospital under an order made under section 55(1)(c).

3.Part 7 Division 5 applies if a person who is under an order made under section 55(1)(c) is absent without leave from the authorised hospital where the person can be detained under the order.

4.A community treatment order in respect of an involuntary community patient who is referred under section 26(2) is no longer suspended if a psychiatrist makes an order under section 55(1)(d) that the involuntary community patient cannot continue to be detained (see section 30(b)(i)).

56.Effect of order for continuation of detention

(1)An order made under section 55(1)(c) authorises the continuation of the person’s detention until the first of these things occurs —

(a)a psychiatrist conducts the further examination and makes one of these orders —

(i)an inpatient treatment order authorising the person’s detention at the authorised hospital for the period specified in the order in accordance with section 87(a) or (b);

(ii)a community treatment order in respect of the person;

(iii)an order that the person cannot continue to be detained;

(b)the expiry of the period specified in the order under section 55(3).

(2)An order made under subsection (1)(a) must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)if it is made under subsection (1)(a)(i) or (ii) — the reasons for making it;

(c)the name, qualifications and signature of the psychiatrist making it.

(3)A psychiatrist who makes an order under subsection (1)(a) must, as soon as practicable, file it and give a copy to the person.

Notes for this section:

1.A community treatment order in respect of an involuntary community patient who is referred under section 26(2) or 36(2) is automatically revoked under section 116(b) if a psychiatrist makes an inpatient treatment order under section 56(1)(a)(i) in respect of the involuntary community patient.

2.A community treatment order in respect of an involuntary community patient who is referred under section 26(2) is no longer suspended if a psychiatrist makes an order under section 56(1)(a)(iii) that the involuntary community patient cannot continue to be detained (see section 30(b)(i)).

Subdivision 2 — Examination at place that is not authorised hospital

57.Application of this Subdivision

This Subdivision applies in relation to a person who is referred under section 26(3)(a) for an examination to be conducted by a psychiatrist at a place that is not an authorised hospital.

58.Detention for examination

(1)The person —

(a)must be received into the place unless subsection (2) applies; and

(b)can be detained there, to enable the examination to be conducted, for up to 24 hours from the time when the person is received.

(2)The person cannot be received into the place if the referral has expired.

(3)The person in charge of the place must ensure that the person has the opportunity and the means to contact any carer, close family member or other personal support person of the person, a health professional who is currently providing the person with treatment and the Chief Mental Health Advocate —

(a)as soon as practicable after the person is received into the place; and

(b)at all reasonable times while the person is detained there under subsection (1)(b).

(4)The person cannot continue to be detained if, by the end of the 24‑hour period referred to in subsection (1)(b) —

(a)either —

(i)the examination has not been completed; or

(ii)the examination has been completed but an order has not been made under section 61(1) in respect of the person;

and

(b)if the place is outside a metropolitan area — an order authorising the continuation of the person’s detention from the end of that period has not been made under section 59(2).

59.Detention at place outside metropolitan area

(1)This section applies if —

(a)the person is referred for an examination at a place that is outside a metropolitan area; and

(b)it is not practicable to complete the examination within the 24‑hour period referred to in section 58(1)(b).

(2)A medical practitioner or authorised mental health practitioner at the place may make an order authorising the continuation of the person’s detention at the place, to enable the examination to be completed, for up to an additional 48 hours from the end of the 24‑hour period.

(3)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the date and time when it expires;

(c)the reasons for the continuation;

(d)the name, qualifications and signature of the practitioner making it.

(4)The practitioner who makes the order must, as soon as practicable, file it and give a copy to the person.

(5)The practitioner who makes the order must ensure that the person has the opportunity and the means to contact any carer, close family member or other personal support person of the person, a health professional who is currently providing the person with treatment and the Chief Mental Health Advocate —

(a)as soon as practicable after the order is made; and

(b)at all reasonable times while the person is detained under the order.

(6)The person cannot continue to be detained if, by the end of the additional 48‑hour period —

(a)the examination has not been completed; or

(b)the examination has been completed but an order has not been made under section 61(1) in respect of the person.

60.Conducting examination

Subdivision 6 applies in relation to the conduct of the examination.

61.What psychiatrist must do on completing examination

(1)On completing the examination, the psychiatrist must make one of these orders —

(a)an inpatient treatment order authorising the person’s detention at the general hospital specified in the order for the period specified in the order in accordance with section 87(a) or (b);

(b)a community treatment order in respect of the person;

(c)an order authorising the person’s reception at an authorised hospital, and the person’s detention there, to enable an examination to be conducted by a psychiatrist;

(d)an order that the person cannot continue to be detained.

(2)However, the psychiatrist cannot make an order under subsection (1)(a) unless —

(a)satisfied that attempting to take the person to, or to detain the person at, an authorised hospital poses a significant risk to the person’s physical health; and

(b)the Chief Psychiatrist consents to the order being made.

(3)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)if it is made under subsection (1)(a), (b) or (c) — the reasons for making it;

(c)the name, qualifications and signature of the psychiatrist.

(4)The psychiatrist must, as soon as practicable, file the order and give a copy to the person.

(5)The making of an order under subsection (1) is an event to which Part 9 applies and the psychiatrist who makes the order is the person responsible under that Part for notification of that event.

Notes for this section:

1.A community treatment order in respect of a person who is referred under section 26(3)(a) is automatically revoked under section 116(b) if a psychiatrist makes an inpatient treatment order under section 61(1)(a) in respect of the involuntary community patient.

2.Part 7 Division 4 applies in relation to the release of a person who is detained at an authorised hospital under an order made under section 61(1)(c).

3.Part 7 Division 5 applies if a person who is under an order made under section 61(1)(c) is absent without leave from the authorised hospital where the person can be detained under the order.

4.A community treatment order in respect of a person who is referred under section 26(3)(a) is no longer suspended if a psychiatrist makes an order under section 61(1)(d) that the involuntary community patient cannot continue to be detained (see section 30(b)(i)).

62.Detention to enable person to be taken to hospital

(1)A medical practitioner or authorised mental health practitioner may make an order authorising the continuation of the person’s detention for up to 24 hours from the time when the order under section 61(1)(a) or (c) is made if satisfied that the person needs to be detained to enable the person to be taken to the hospital.

(2)A medical practitioner or authorised mental health practitioner may, immediately before the end of the period of detention authorised under subsection (1) or any further period of detention authorised under this subsection in respect of the person, make an order authorising the continuation of the person’s detention for up to 24 hours from the end of that period to enable the person to be taken to the hospital.

(3)A person cannot be detained under orders made under this section for a continuous period of more than 72 hours.

(4)A medical practitioner or authorised mental health practitioner cannot make an order under subsection (2) in respect of the person unless —

(a)immediately before making the order, the practitioner assesses the person; and

(b)as a consequence, the practitioner is satisfied that the person still needs to be detained to enable the person to be taken to the hospital.

(5)Division 2 Subdivision 4 applies in relation to the conduct of an assessment required by subsection (4)(a).

(6)An order made under this section must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the date and time when it expires;

(c)the reasons for the continuation;

(d)the name, qualifications and signature of the practitioner making it.

(7)A practitioner who makes an order under this section in respect of a person must, as soon as practicable, file it and give a copy to the person.

(8)A practitioner who makes an order under this section in respect of a person must ensure that the person has the opportunity and the means to contact any carer, close family member or other personal support person of the person, a health professional who is currently providing the person with treatment and the Chief Mental Health Advocate —

(a)as soon as practicable after it is made; and

(b)at all reasonable times while the person is detained under it.

(9)The person cannot continue to be detained if, by the end of a period of detention authorised under this section in respect of the person —

(a)the person has not been taken to the hospital; and

(b)the person has not been apprehended under a transport order made under section 63(1); and

(c)an order under subsection (2) authorising the continuation of the person’s detention from the end of that period has not been made or, because of subsection (3), cannot be made.

63.Making transport order

(1)A psychiatrist may make a transport order in respect of a person who is under an order made under section 61(1)(a) or (c).

(2)The psychiatrist cannot make the transport order unless satisfied that —

(a)the person needs to be taken to the hospital specified in the order made under section 61(1)(a) or (c); and

(b)no other safe means of taking the person is reasonably available.

(3)Part 10 applies in relation to the transport order.

Subdivision 3 — Inpatient treatment order authorising detention at general hospital

64.Application of this Subdivision

This Subdivision applies in relation to an involuntary inpatient under an inpatient treatment order made under section 61(1)(a) or 131(2)(a) authorising the involuntary inpatient’s detention at a general hospital.

65.Treating psychiatrist must report regularly to Chief Psychiatrist

(1)At the end of each successive 7-day period that the involuntary inpatient is detained at the general hospital, the treating psychiatrist must report to the Chief Psychiatrist about these matters —

(a)the involuntary inpatient’s mental and physical condition;

(b)any treatment (as defined in section 4) being provided to the involuntary inpatient at the general hospital;

(c)any other medical or surgical treatment being provided to the involuntary inpatient at the general hospital.

(2)The report must be in the approved form.

66.Transfer from general hospital to authorised hospital

(1)Once the treating psychiatrist is satisfied that attempting to take the involuntary inpatient to, or to detain the involuntary inpatient at, an authorised hospital no longer poses a significant risk to the inpatient’s physical health, then as soon as practicable, the treating psychiatrist must make an order (a transfer order) authorising the inpatient’s transfer to the authorised hospital specified in the order.

(2)In deciding whether or not there is still a significant risk to the involuntary inpatient’s physical health, the treating psychiatrist may consult with any other medical practitioner or health care provider who is responsible for any medical or surgical treatment being provided to the inpatient.

(3)The transfer order must be in the approved form and must include the following —

(a)the involuntary inpatient’s name;

(b)the general hospital from which the involuntary inpatient is to be transferred;

(c)the authorised hospital to which the involuntary inpatient is to be transferred;

(d)the date and time when the order is made;

(e)the reasons for the transfer;

(f)the name, qualifications and signature of the treating psychiatrist.

(4)The treating psychiatrist must, as soon as practicable, file the transfer order and give a copy to the involuntary patient.

(5)The making of a transfer order under subsection (1) is an event to which Part 9 applies and the treating psychiatrist is the person responsible under that Part for notification of that event.

67.Making transport order

(1)A psychiatrist may make a transport order in respect of an inpatient who is under a transfer order made under section 66(1).

(2)The psychiatrist cannot make the transport order unless satisfied that no other safe means of taking the involuntary inpatient to the authorised hospital is reasonably available.

(3)Part 10 applies in relation to the transport order.

68.Confirmation of inpatient treatment order

(1)This section applies if —

(a)the psychiatrist who conducted the examination for the purpose of making the inpatient treatment order and the involuntary inpatient were not in one another’s physical presence when that examination was conducted; and

(b)since that examination was conducted, there has been no further examination of the involuntary inpatient conducted by a psychiatrist during which the psychiatrist and the inpatient were in one another’s physical presence.

(2)Within 24 hours after the involuntary inpatient is admitted by the authorised hospital in accordance with the transfer order, the inpatient treatment order must be confirmed by a psychiatrist at the authorised hospital.

(3)The psychiatrist cannot confirm the inpatient treatment order without examining the involuntary inpatient.

(4)Subdivision 6 applies in relation to the conduct of the examination.

(5)The confirmation must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for the confirmation;

(c)the name, qualifications and signature of the psychiatrist.

(6)The inpatient treatment order ceases to be in force if it is not confirmed in accordance with subsection (2).

(7)The release of a person because of subsection (6) is an event to which Part 9 applies and the person in charge of the authorised hospital is the person responsible under that Part for notification of that event.

Subdivision 4 — Order for further examination at authorised hospital

69.Application of this Subdivision

This Subdivision applies in relation to a person who is under an order made under section 61(1)(c) that the person be received into an authorised hospital, and detained there, to enable an examination to be conducted by a psychiatrist.

70.Detention at authorised hospital

(1)The person —

(a)must be received into the authorised hospital unless subsection (2) applies; and

(b)can be detained there, to enable the examination to be conducted, for up to 24 hours from the time when the person is received.

(2)The person cannot be received into the authorised hospital more than 72 hours after the time when the order under section 61(1)(c) is made.

(3)The person in charge of the authorised hospital must ensure that the person has the opportunity and the means to contact any carer, close family member or other personal support person of the person, a health professional who is currently providing the person with treatment and the Chief Mental Health Advocate —

(a)as soon as practicable after the person is received into the authorised hospital; and

(b)at all reasonable times while the person is detained there under subsection (1)(b).

(4)The person cannot continue to be detained if, by the end of the 24‑hour period referred to in subsection (1)(b) —

(a)the examination has not been completed; or

(b)the examination has been completed but an order has not been made under section 72(1) in respect of the person.

(5)Reception at an authorised hospital under this section is not admission by the hospital under this Act.

71.Conducting examination at authorised hospital

Subdivision 6 applies in relation to the conduct of the examination.

72.What psychiatrist must do on completing examination

(1)On completing the examination, the psychiatrist must make one of these orders —

(a)an inpatient treatment order authorising the person’s detention at the authorised hospital for the period specified in the order in accordance with section 87(a) or (b);

(b)a community treatment order in respect of the person;

(c)an order that the person cannot continue to be detained.

(2)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)if it is made under subsection (1)(a) or (b) — the reasons for making it;

(c)the name, qualifications and signature of the psychiatrist.

(3)The psychiatrist must, as soon as practicable, file the order and give a copy to the person.

Notes for this section:

1.A community treatment order is automatically revoked under section 116(b) if a psychiatrist makes an inpatient treatment order under section 72(1)(a) in respect of the involuntary community patient.

2.A community treatment order is no longer suspended if a psychiatrist makes an order under section 72(1)(c) that the involuntary community patient cannot continue to be detained.

Subdivision 5 — Examination without referral

73.Application of this Subdivision

This Subdivision applies if a person is examined by a psychiatrist in circumstances other than —

(a)because of a referral made under section 26(2) or (3)(a) or 36(2); or

(b)because of an order made under section 55(1)(c) or 61(1)(c); or

(c)under section 89(1) or 131(3) or (5)(a).

74.Conducting examination

Subdivision 6 applies in relation to the conduct of the examination.

75.What psychiatrist may do on completing examination

(1)On completing the examination, the psychiatrist may make a community treatment order in respect of the person.

(2)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for making it;

(c)the name, qualifications and signature of the psychiatrist.

(3)The psychiatrist must, as soon as practicable, file the order and give a copy to the person.

76.Confirmation of community treatment order

(1)Within 72 hours after the time when the community treatment order is made, it must be confirmed by —

(a)another psychiatrist; or

(b)if another psychiatrist is not reasonably available —

(i)another medical practitioner; or

(ii)an authorised mental health practitioner.

(2)The confirmation must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for the confirmation;

(c)the name, qualifications and signature of the practitioner confirming the community treatment order.

(3)The supervising psychiatrist —

(a)must inform the person about whether or not the order has been confirmed; and

(b)if it has been confirmed — file the confirmation and give a copy to the person.

(4)The order ceases to be in force if it is not confirmed in accordance with subsection (1).

Subdivision 6 — Conduct of examination

77.Application of this Subdivision

This Subdivision applies in relation to an examination conducted in any of these circumstances —

(a)by a psychiatrist because of a referral made under section 26(2) or (3)(a) or 36(2);

(b)by a psychiatrist because of an order made under section 55(1)(c) or 61(1)(c) for the detention of a person at an authorised hospital to enable the person to be examined;

(c)by a psychiatrist for the purpose of confirming an inpatient treatment order, as required by section 68(3) or 124(3);

(d)by a psychiatrist in circumstances in which Subdivision 5 applies;

(e)by a supervising psychiatrist before the review period for a community treatment order ends, as required by section 118(2)(a);

(f)by a medical practitioner or authorised mental health practitioner before the review period for a community treatment order ends, as required by section 118(2)(b);

(g)by a supervising psychiatrist for the purpose of making an inpatient treatment order, as required by section 120(3), 123(2) or 131(3);

(h)by a supervising psychiatrist for the purpose of making an order revoking a community treatment order, as permitted by section 120(4)(a), 123(3)(a) or 131(5)(a);

(i)by a supervising psychiatrist for the purpose of making a continuation order, as required by section 121(2);

(j)by a psychiatrist for the purpose of giving a further opinion, as required by section 182(6) as applied by section 121(6) or as required by section 182(6).

78.Referring psychiatrist cannot conduct examination

An examination referred to section 77(a) cannot be conducted by the psychiatrist who made the referral under section 26(2) or (3)(a) or 36(2).

791MHow examination must be conducted

(1)An examination must be conducted in the least restrictive way, and the least restrictive environment, practicable.

(2)For an examination referred to in section 77(a), (b), (d), (f) or (g), unless subsection (3) applies, the psychiatrist or practitioner and the person being examined must be in one another’s physical presence.

(3)The psychiatrist or practitioner may conduct the examination using audiovisual communication if —

(a)the person being examined is at a place that is not an authorised hospital and is outside a metropolitan area; and

(b)it is not practicable for the psychiatrist or practitioner to comply with subsection (2); and

(c)a health professional and the person being examined are in one another’s physical presence.

(4)For an examination referred to in section 77(c) or in section 77(e) if it is also an examination required by section 120(3), the psychiatrist and the person being examined must be in one another’s physical presence and the examination cannot be conducted using audiovisual communication.

(5)For an examination referred to in section 77(e) unless it is also an examination required by section 120(3) or in section 77(h), (i) or (j) —

(a)the psychiatrist and the person being examined need not be in one another’s physical presence; but

(b)if they are not — each of them must be able to see and hear the other while the other is speaking (for example, by being able to see one another through a window and hear one another using a telephone or to see and hear one another using audiovisual communication).

(6)For the purposes of this Act, an examination conducted using audiovisual communication is taken to be conducted, and any order made as a result is taken to be made, at the place where the person examined is when the examination is conducted.

[Section 79: modified by the COVID‑19 Response and Economic Recovery Omnibus Act 2020 (No. 34 of 2020) Part 4 Division 2. See endnote 1M.]

80.Information to which examiner may have regard

(1)The psychiatrist or practitioner may have regard to any information about the person being examined that is obtained by the psychiatrist or practitioner from one or more of the following —

(a)the person, including information obtained by observing the person and asking the person questions;

(b)if the person is of Aboriginal or Torres Strait Islander descent —

(i)an Aboriginal or Torres Strait Islander mental health worker; or

(ii)a significant member of the person’s community, including an elder or traditional healer;

(c)any other person;

(d)the person’s medical record.

(2)The psychiatrist or practitioner cannot conclude that the person being examined is in need of, is still in need of, or is no longer in need of, an involuntary treatment order solely on the basis of information referred to in one or more of subsection (1)(b)(i) or (ii), (c) or (d).

81.Examination of person of Aboriginal or Torres Strait Islander descent

To the extent that it is practicable and appropriate to do so, the examination of a person who is of Aboriginal or Torres Strait Islander descent must be conducted in collaboration with —

(a)Aboriginal or Torres Strait Islander mental health workers; and

(b)significant members of the person’s community, including elders and traditional healers.

Part 7 — Detention for examination or treatment

Division 1 — Preliminary matters

82.Application of this Part

This Part does not apply in relation to a mentally impaired accused who is being detained at an authorised hospital under the MIA Act, whether or not the mentally impaired accused was being detained at the authorised hospital under this Act immediately before the mentally impaired accused was detained at the authorised hospital under the MIA Act.

Division 2 — Detention at authorised hospital or other place for examination

83.Detention authorised

(1)This section applies in relation to any of these people —

(a)a person who can be detained at an authorised hospital under section 34(3) because of an order for an assessment made under section 34(1);

(b)a person who can be detained at an authorised hospital under section 52(1)(b) because of a referral made under section 26(2);

(c)a person who can be detained at an authorised hospital under section 53(1) because of a referral made under section 36(2);

(d)a person who is under an order made under section 55(1)(c) authorising the continuation of the person’s detention at an authorised hospital to enable a further examination to be conducted;

(e)a person who can be detained at a place that is not an authorised hospital under section 58(1)(b) because of a referral made under section 26(3)(a);

(f)a person who is under an order made under section 59(2) authorising the continuation of the person’s detention at a place that is not an authorised hospital to enable an examination to be completed;

(g)a person who is under an order made under section 61(1)(c) authorising the person’s detention at an authorised hospital to enable an examination to be conducted.

(2)The referral or order authorises —

(a)the person’s reception at the authorised hospital or other place specified in the referral or order; and

(b)the person’s detention there for the period authorised by this Act for which the person can be detained because of the referral or under the order; and

(c)a person who is prescribed by the regulations for this paragraph to exercise the powers under section 172 for the purpose of detaining the person there.

Notes for this section:

1.The period for which a person can be detained under section 34(3) is authorised under that provision.

2.The period for which a person can be detained under section 52(1)(b), 53(1) or 58(1)(b), or under an order made under section 55(1)(c), 59(2) or 61(1)(c), is authorised under Part 6 Division 3.

Division 3 — Detention at hospital under inpatient treatment order

84.Application of this Division

This Division applies in relation to an involuntary inpatient who is under an inpatient treatment order authorising the involuntary inpatient’s detention at an authorised hospital or a general hospital.

Notes for this section:

1.An inpatient treatment order authorising a person’s detention at an authorised hospital can be made under section 55(1)(a), 56(1)(a)(i), 72(1)(a), 120(2)(a), 123(1)(a) or 131(2)(a).

2.An inpatient treatment order authorising a person’s detention at a general hospital can be made under section 61(1)(a) or 131(2)(a).

85.Terms used

In this Division —

continuation order means a continuation order made under section 89(2)(a);

detention period, for an inpatient treatment order, means —

(a)the period for which the involuntary inpatient can be detained under the order as specified in the order in accordance with section 87(a) or (b); or

(b)the further period for which the involuntary inpatient can be detained under the order as specified in a continuation order.

86.Detention authorised

An inpatient treatment order authorises —

(a)the involuntary inpatient’s admission as an inpatient by —

(i)the hospital specified in the order; and

(ii)any authorised hospital to which the patient is transferred under section 66(1) or 91(2);

and

(b)the involuntary inpatient’s detention there for the period authorised by this Act for which the inpatient can be detained under this Act; and

(c)a person who is prescribed by the regulations for this paragraph to exercise the powers under section 172 for the purpose of detaining the involuntary inpatient there.

87.Period that must be specified in inpatient treatment order

The period specified in an inpatient treatment order as the period for which the involuntary inpatient can be detained under the order cannot exceed —

(a)if, when the order is made, the involuntary inpatient is an adult — 21 days from the day on which the order is made; or

(b)if, when the order is made, the involuntary inpatient is a child — 14 days from the day on which the order is made.

88.Period for which detention is authorised

An inpatient treatment order authorises the involuntary inpatient’s detention until the first of these things occurs —

(a)a psychiatrist makes an order under section 89(2)(b) or 90(1)(a) in respect of the involuntary inpatient;

(b)a psychiatrist revokes the order under section 89(2)(c) or 90(1)(b);

(c)the expiry of the detention period unless the detention of the involuntary inpatient under the inpatient treatment order has been continued under a continuation order.

89.Examination before end of each detention period

(1)The treating psychiatrist must ensure that, on or within 7 days before the day on which the detention period for an inpatient treatment order ends, the involuntary inpatient is examined by a psychiatrist.

(2)On completing the examination, the psychiatrist who conducted it must make one of these orders —

(a)if satisfied, having regard to the criteria specified in section 25, that the involuntary inpatient is still in need of the inpatient treatment order — a continuation order continuing the inpatient treatment order from the end of the detention period for the further detention period that is specified in the continuation order in accordance with subsection (3)(a) or (b);

(b)if satisfied, having regard to the criteria specified in section 25, that the involuntary inpatient is no longer in need of the inpatient treatment order but is in need of a community treatment order — a community treatment order in respect of the inpatient;

(c)if satisfied, having regard to the criteria in section 25, that the involuntary inpatient is no longer in need of an involuntary treatment order — an order revoking the inpatient treatment order.

(3)For subsection (2)(a), the detention period specified in a continuation order cannot exceed —

(a)if, when the continuation order is made, the involuntary inpatient is an adult — 3 months; or

(b)if, when the continuation order is made, the involuntary inpatient is a child — 28 days.

(4)An order made under subsection (2) must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)if it is made under subsection (2)(a) or (b) — the reasons for making it;

(c)the name, qualifications and signature of the psychiatrist making it.

(5)A psychiatrist who makes an order under subsection (2) must, as soon as practicable, file it and give a copy to the involuntary inpatient.

(6)The release of a person because of an order made under subsection (2)(b) or (c) is an event to which Part 9 applies and the person in charge of the hospital is the person responsible under that Part for notification of that event.

90.Changing involuntary inpatient’s status

(1)A psychiatrist may make either of these orders during the detention period —

(a)if satisfied, having regard to the criteria specified in section 25, that the involuntary inpatient is no longer in need of the inpatient treatment order but is in need of a community treatment order — a community treatment order in respect of the inpatient;

(b)if satisfied, having regard to the criteria specified in section 25, that the involuntary inpatient is no longer in need of an involuntary treatment order — an order revoking the inpatient treatment order.

(2)The psychiatrist may make the order without examining the involuntary inpatient.

(3)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)if it is made under subsection (1)(a) — the reasons for making it;

(c)the name, qualifications and signature of the psychiatrist.

(4)The psychiatrist must, as soon as practicable, file the order and give a copy to the involuntary inpatient.

(5)The making of an order under subsection (1) is an event to which Part 9 applies and the psychiatrist who makes the order is the person responsible under that Part for notification of that event.

91.Transfer between authorised hospitals

(1)This section applies in relation to an involuntary inpatient who is detained at an authorised hospital.

(2)The treating psychiatrist or, if the treating psychiatrist is not reasonably available, another psychiatrist at the authorised hospital may make an order (a transfer order) authorising the involuntary inpatient’s transfer from the authorised hospital to another authorised hospital specified in the order.

(3)The transfer order must be in the approved form and must include the following —

(a)the involuntary inpatient’s name;

(b)the authorised hospital from which the involuntary inpatient is to be transferred;

(c)the authorised hospital to which the involuntary inpatient is to be transferred;

(d)the date and time when the order is made;

(e)the reasons for the transfer;

(f)the name, qualifications and signature of the psychiatrist making it.

(4)A psychiatrist who makes a transfer order must, as soon as practicable, file it and give a copy to the involuntary inpatient.

(5)The making of a transfer order under subsection (2) is an event to which Part 9 applies and the psychiatrist who makes the order is the person responsible under that Part for notification of that event.

Note for this section:

Section 66 applies in relation to the transfer of an involuntary inpatient from a general hospital to an authorised hospital.

92.Making transport order

(1)A psychiatrist may make a transport order in respect of an inpatient who is under a transfer order made under section 91(2).

(2)The psychiatrist cannot make the transport order unless satisfied that no other safe means of taking the involuntary inpatient to the authorised hospital is reasonably available.

(3)Part 10 applies in relation to the transport order.

93.Involuntary inpatient to be advised of expiry

(1)This section applies if an inpatient treatment order expires.

(2)The treating psychiatrist must advise the involuntary inpatient in writing of the expiry and its consequences.

(3)The treating psychiatrist must file a copy of the advice.

(4)The expiry of an inpatient treatment order is an event to which Part 9 applies and the person in charge of the hospital at which the involuntary inpatient was being detained is the person responsible under that Part for notification of that event.

Division 4 — Release from hospital or other place

94.Application of this Division

This Division applies in relation to a person referred to in paragraph (a), (b) or (c) who is detained for a reason referred to in that provision —

(a)a person who is detained under Part 6 Division 2 or 3 to enable the person —

(i)to be taken to an authorised hospital or other place; or

(ii)to be assessed or examined;

or

(b)a person who is detained under an inpatient treatment order; or

(c)an involuntary community patient who is detained under section 130(2)(b).

95.Person must be allowed to leave

(1)This section applies whenever a person cannot continue to be detained at a hospital or other place for a reason referred to in section 94.

(2)A person in charge of the hospital or other place must ensure that, as soon as practicable —

(a)the person is advised in writing by a medical practitioner or mental health practitioner that the person cannot continue to be detained for that reason; or

(b)if the person leaves the hospital or other place before a medical practitioner or mental health practitioner can comply with paragraph (a) — a record of the time when the person left the hospital or other place is filed.

(3)The person must be allowed to leave the hospital or other place unless the person’s detention at the hospital or other place is authorised —

(a)for another reason referred to in section 94; or

(b)under section 96.

(4)The practitioner who provides the advice referred to in subsection (2)(a) must file a copy of the advice.

96.Delivery into custody under another law

A person who cannot continue to be detained for a reason referred to in section 94 but is under an order made under the law of the Commonwealth or a State or Territory requiring the person to be kept in custody is not allowed to leave the hospital or other place until the person has been delivered into that custody.

Division 5 — Absence without leave from hospital or other place

97.Persons who are absent without leave

(1)For the purposes of this Division, a person is absent without leave from a hospital or other place if —

(a)in the case of a person who is detained under Part 6 Division 2 or 3 to enable the person —

(i)to be taken to an authorised hospital or other place; or

(ii)to be assessed or examined,

the person leaves the hospital or other place where the person is detained; or

(b)in the case of a person who is under an inpatient treatment order — the person is absent without leave as described in subsection (2); or

(c)in the case of an involuntary community patient who is detained under section 130(2)(b) — the person leaves the place where the patient is detained.

(2)For subsection (1)(b), a person who is under an inpatient treatment order is absent without leave —

(a)if the person is away from the hospital where the person is detained under the order without being granted leave of absence under section 105(1); or

(b)if, on the cancellation under section 110(1) of leave of absence granted to the person under section 105(1) or on the expiry of such leave, the person does not return to either of these hospitals —

(i)the hospital from which the person was granted the leave of absence;

(ii)the hospital to which the person’s transfer has been ordered under section 66(1) or 91(2).

(3)The absence of a person without leave from a hospital or other place is an event to which Part 9 applies and the person in charge of the hospital or other place is the person responsible under that Part for notification of that event.

98.Making apprehension and return order

(1)The person in charge of a hospital or other place or a medical practitioner may make an order (an apprehension and return order) in respect of a person who is absent without leave from the hospital or other place if satisfied that no other safe means of ensuring that the person returns to the hospital or other place is reasonably available.

(2)An apprehension and return order must be in the approved form and must include the following —

(a)the name of the person who is absent without leave;

(b)the hospital or other place from which the person is absent without leave;

(c)the hospital or other place to which the person must be taken if apprehended;

(d)the date when it is made;

(e)the date when it will expire;

(f)the reasons for making it;

(g)the name, qualifications and signature of the person making it.

(3)A person who makes an apprehension and return order must, as soon as practicable, file it and give a copy to the police officer or person prescribed who will carry out the order.

99.Operation of apprehension and return order

An apprehension and return order made in respect of a person authorises a police officer or a person prescribed by the regulations for this section to do these things —

(a)apprehend the person and, for that purpose, exercise the powers under sections 159(2) and 172;

(b)if the person is apprehended — take the person to the hospital or other place specified in the apprehension and return order under section 98(2)(c) as soon as practicable and, in any event, before the order expires;

(c)for the purpose of taking the person to that hospital or other place, detain the person until the first of these things occurs —

(i)the person is received into the hospital or other place;

(ii)the apprehension and return order expires.

100.Period of apprehension and return order

(1)An apprehension and return order remains in force for 14 days from the day on which the order is made.

(2)An apprehension and return order cannot be extended.

101.Revocation of apprehension and return order

(1)The person in charge of a hospital or other place from which a person is absent without leave or a medical practitioner may make an order (a revocation order) revoking an apprehension and return order made in respect of the person if satisfied that the apprehension and return order is no longer needed.

(2)The revocation order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for the revocation;

(c)the name, qualifications and signature of the person making it.

(3)A person who makes a revocation order must, as soon as practicable —

(a)advise the police officer or person prescribed responsible for carrying out the apprehension and return order of the revocation; and

(b)file the order and a record of the advice.

102.Return of person to place where apprehended

(1)Subsection (2) applies if, after a person is apprehended under an apprehension and return order but before the person is received into the hospital or other place specified in the order under section 98(2)(c), the order is revoked under section 101(1) or expires.

(2)The police officer or person prescribed who was responsible for carrying out the apprehension and return order must take reasonable steps to ensure the person is taken, at the person’s election —

(a)back to the place where the person was apprehended; or

(b)to a place reasonably nominated by the person.

(3)Subsection (2) does not require the person to be taken to a place if to do so poses a serious risk to the safety of the person or another person.

Division 6 — Leave of absence from detention at hospital under inpatient treatment order

Subdivision 1 — Preliminary matters

103.Application of this Division

This Division applies in relation to an involuntary inpatient who is under an inpatient treatment order authorising the involuntary inpatient’s detention at an authorised hospital or a general hospital.

Notes for this section:

1.An inpatient treatment order authorising a person’s detention at an authorised hospital can be made under section 55(1)(a), 56(1)(a)(i), 72(1)(a), 120(2)(a), 123(1)(a) or 131(2)(a).

2.An inpatient treatment order authorising a person’s detention at a general hospital can be made under section 61(1)(a) or 131(2)(a).

104.Term used: leave of absence

In this Division —

leave of absence —

(a)means leave of absence granted under section 105(1); and

(b)includes leave of absence as extended or varied under section 106(1).

Subdivision 2 — Grant, extension, variation or cancellation of leave

105.Granting leave

(1)A psychiatrist may make an order granting an involuntary inpatient leave of absence from a hospital if satisfied that granting the leave of absence —

(a)will —

(i)be likely to benefit the involuntary inpatient’s recovery from mental illness or to benefit the inpatient’s mental health in some other way; or

(ii)enable the involuntary inpatient to obtain medical or surgical treatment or be likely to benefit the inpatient’s physical health in some other way;

and

(b)is not inconsistent with the involuntary inpatient’s need to be provided with treatment for a reason specified in section 25(1)(b).

(2)The psychiatrist cannot make the order unless the psychiatrist has consulted each of these people about the matters specified in subsection (3) —

(a)if the involuntary inpatient has an enduring guardian or guardian — the enduring guardian or guardian;

(b)if the involuntary inpatient is a child — the child’s parent or guardian;

(c)if the involuntary inpatient has a nominated person — the nominated person unless the nominated person is not entitled, for the reason referred to in section 269(1), to be consulted;

(d)if the involuntary inpatient has a carer — the carer unless the carer is not entitled, for the reason referred to in section 288(2) or 292(1), to be consulted;

(e)if the involuntary inpatient has a close family member — the close family member unless the close family member is not entitled, for the reason referred to in section 288(2) or 292(1), to be consulted.

(3)For subsection (2), these matters are specified —

(a)whether or not to make the order; and

(b)what period and conditions would be appropriate to specify in the order if it were to be made.

(4)Without limiting a requirement under subsection (2)(a) to consult the involuntary inpatient’s enduring guardian or guardian, or under subsection (2)(b) to consult the involuntary inpatient’s parent or guardian, about the matters referred to in subsection (3)(a) and (b), the requirement is taken to be complied with if the psychiatrist ensures that reasonable efforts continue to be made to consult the person about those matters until the first of these things occurs —

(a)the person is consulted about those matters;

(b)it is reasonable for the psychiatrist to conclude that the person cannot be consulted about those matters.

(5)Part 16 Division 3 Subdivision 2 applies in relation to a requirement under subsection (2)(c) to consult the involuntary inpatient’s nominated person about the matters referred to in subsection (3)(a) and (b).

(6)Part 17 Division 2 applies in relation to a requirement under subsection (2)(d) to consult a carer of the involuntary inpatient, or under subsection (2)(e) to consult a close family member of the involuntary inpatient, about the matters referred to in subsection (3)(a) and (b).

(7)The psychiatrist must ensure that the following are filed —

(a)if a person referred to in subsection (2)(a) to (e) was consulted — a record of the consultation; or

(b)if a person referred to in subsection (2)(a) to (e) could not be consulted — a record of the efforts made to do so.

(8)The psychiatrist cannot make the order unless the psychiatrist has considered whether it would be more appropriate to make an order under section 90(1) in respect of the involuntary inpatient.

(9)The order authorises the involuntary inpatient’s absence from the hospital for the period, and subject to the conditions, the psychiatrist considers appropriate and specifies in the order.

(10)The conditions imposed under subsection (9) may include conditions about the involuntary inpatient doing any of these things —

(a)residing at a specified place;

(b)receiving specified treatment;

(c)attending at a specified place, and remaining there as specified in the order, to enable the involuntary inpatient to be provided with specified treatment.

(11)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the period and conditions of the leave of absence;

(c)the reasons for granting the leave of absence;

(d)the name, qualifications and signature of the psychiatrist.

(12)The psychiatrist must, as soon as practicable, file the order and give a copy to the involuntary inpatient.

(13)The making of an order under subsection (1) is an event to which Part 9 applies and the psychiatrist who makes the order is the person responsible under that Part for notification of that event.

106.Extending or varying leave granted

(1)A psychiatrist may make an order —

(a)extending an involuntary inpatient’s leave of absence; or

(b)varying the conditions subject to which an involuntary inpatient’s leave of absence is granted.

(2)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the period of the extension or the variation of the conditions;

(c)the reasons for the extension or variation;

(d)the name, qualifications and signature of the psychiatrist.

(3)The psychiatrist must, as soon as practicable, file the order and give a copy to the involuntary inpatient.

(4)The making of an order under subsection (1) is an event to which Part 9 applies and the psychiatrist who makes the order is the person responsible under that Part for notification of that event.

107.Involuntary inpatient must comply with conditions of leave

An involuntary inpatient who is on leave of absence from a hospital must comply with the conditions to which the leave of absence is subject.

108.Monitoring involuntary inpatient on leave

(1)This section applies if an involuntary inpatient is away from a hospital on leave of absence for more than 21 consecutive days.

(2)The treating psychiatrist must consider whether it would be appropriate to make an order under section 90(1) in respect of the inpatient.

(3)For the purpose of subsection (2), the treating psychiatrist may make any inquiries the psychiatrist considers appropriate.

109.Changing involuntary inpatient’s status while inpatient on leave

(1)This section applies if, while an involuntary inpatient is away from a hospital on leave of absence, the treating psychiatrist is given a written opinion from another medical practitioner or a mental health practitioner to the effect that the involuntary inpatient is no longer in need of an inpatient treatment order.

(2)The treating psychiatrist must file the opinion as soon as practicable, whether or not the treating psychiatrist acts under subsection (3) on the basis of the opinion.

(3)The treating psychiatrist may make an order under section 90(1) in respect of the involuntary inpatient on the basis of the opinion and without examining the inpatient.

110.Cancelling leave

(1)This section applies if, while an involuntary inpatient is away from a hospital on leave of absence, a psychiatrist forms the reasonable belief that it is inappropriate for the inpatient to continue to be away from the hospital.

(2)The psychiatrist may make an order cancelling the leave of absence.

(3)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for that belief;

(c)the name, qualifications and signature of the psychiatrist.

(4)The psychiatrist must, as soon as practicable —

(a)orally advise the involuntary patient that the leave of absence has been cancelled; and

(b)file the order and give a copy to the involuntary inpatient.

(5)The making of an order under subsection (2) is an event to which Part 9 applies and the psychiatrist who makes the order is the person responsible under that Part for notification of that event.

Subdivision 3 — Transport to and from hospital

111.Application of this Subdivision

This Subdivision applies in relation to an involuntary inpatient —

(a)who is granted leave of absence to enable the involuntary inpatient to obtain medical or surgical treatment at a general hospital; or

(b)who, because of the cancellation under section 110(1) of leave of absence granted to the involuntary patient for a purpose referred to in paragraph (a) or because of the expiry of such leave, must return to —

(i)the hospital from which the leave was granted; or

(ii)an authorised hospital to which the involuntary inpatient’s transfer has been ordered under section 66(1) or 91(2).

112.Making transport order

(1)A psychiatrist may make a transport order in respect of the involuntary inpatient.

(2)The psychiatrist cannot make the transport order unless satisfied that no other safe means of taking the involuntary inpatient to the hospital is reasonably available.

(3)Part 10 applies in relation to the transport order.

Part 8 — Community treatment orders

Division 1 — Preliminary matters

113.Terms used

In this Part —

community treatment order includes a community treatment order as varied under section 121(1), 122(1), 135(1)(a) or (2)(a) or 137(a);

continuation order means a continuation order made under section 121(1);

involuntary community patient, in relation to a community treatment order, means the involuntary community patient who is under the order;

supervising psychiatrist, in relation to a community treatment order, means the psychiatrist who is the supervising psychiatrist under the order;

treating practitioner, in relation to a community treatment order, means the medical practitioner or mental health practitioner who is the treating practitioner under the order;

treatment period, for a community treatment order, means —

(a)the treatment period for which the order remains in force as specified in the order under section 115(2); or

(b)the further treatment period for which the order remains in force as specified in a continuation order.

Division 2 — Making order

114.Things psychiatrist must be satisfied of before making order

A psychiatrist cannot make a community treatment order in respect of a person unless satisfied of these things —

(a)treatment of the person in the community would not be inconsistent with the person’s need to be provided with treatment for a reason specified in section 25(2)(b);

(b)suitable arrangements can be made for the treatment and care of the person in the community, including —

(i)arrangements for a psychiatrist to be the supervising psychiatrist under the order; and

(ii)arrangements for a medical practitioner or mental health practitioner to be the treating practitioner under the order.

Note for this section:

The supervising psychiatrist can also be the treating practitioner (see section 136(2)(b)).

115.Terms of order

(1)The terms of a community treatment order must include these things —

(a)the name of the psychiatrist who is the supervising psychiatrist under the order;

(b)a requirement that the involuntary community patient comply with all of the supervising psychiatrist’s directions to the patient about treatment to be provided to the patient under the order;

(c)the name of the medical practitioner or mental health practitioner who is the treating practitioner under the order;

(d)the date and time when the order is made;

(e)the date and time when the order comes into force, which must be within 7 days after the date and time when the order is made;

(f)the treatment period for which the order remains in force as specified under subsection (2);

(g)a requirement that the involuntary community patient notify the supervising psychiatrist or treating practitioner of any change in the patient’s residential address;

(h)a requirement that the involuntary community patient notify the supervising psychiatrist or treating practitioner of any interstate or overseas travel by the patient —

(i)at least 7 days before the day of the patient’s departure; or

(ii)if the patient cannot comply with subparagraph (i) because the patient needs to travel urgently — as soon as it is practicable for the patient to give notice of the travel.

(2)For subsection (1)(f), the treatment period specified in a community treatment order when it is made cannot exceed 3 months from the day on which it is made.

Notes for this section:

1.The supervising psychiatrist can also be the treating practitioner (see section 136(2)(b)).

2.The terms of a community treatment order may require the involuntary community patient to be provided with treatment by a mental health service in another State or a Territory (see section 559).

Division 3 — Operation of order

116.Duration of order

A community treatment order remains in force until the first of these things occurs —

(a)the supervising psychiatrist makes an inpatient treatment order under section 120(2)(a), 123(1)(a) or 131(2)(a) in respect of the involuntary community patient;

(b)a psychiatrist makes an inpatient treatment order under any other provision of this Act in respect of the involuntary community patient;

(c)the supervising psychiatrist revokes the order under section 120(2)(b) or 131(2)(b);

(d)the expiry of the treatment period for the order unless the order has been continued under a continuation order.

Notes for this section:

1.In addition to the provisions referred to in section 116(a), an inpatient treatment order authorising a person’s detention at an authorised hospital can be made under section 55(1)(a), 56(1)(a)(i) or 72(1)(a) or at a general hospital under section 61(1)(a).

2.A community treatment order may be suspended under section 30 or 33.

117.Advice about when and where treatment to be provided

(1)The supervising psychiatrist must ensure that the involuntary community patient is advised of when and where treatment is to be provided to the patient under the community treatment order.

(2)Without limiting subsection (1), the supervising psychiatrist must ensure that, on or within 14 days after the day on which the community treatment order is made, the involuntary community patient is advised in writing of the date, time and place of the involuntary community patient’s first appointment (whether with the treating practitioner or otherwise) for the provision of treatment under the order.

118.Monthly examination of patient

(1)In this section —

first treatment period, for a community treatment order, means the treatment period for which the order remains in force as specified in the order under section 115(2);

review period, for a community treatment order, means —

(a)the period of one month beginning on the day on which the first treatment period for the order begins; or

(b)the period of one month beginning on the day after the day on which the involuntary community patient was last examined under subsection (2) for the purposes of the order.

(2)The involuntary community patient must be examined, on or within 14 days before the day on which a review period for a community treatment order ends, by —

(a)the supervising psychiatrist; or

(b)another medical practitioner or a mental health practitioner —

(i)if the supervising psychiatrist is unavailable; or

(ii)if requested by the supervising psychiatrist under section 119(1).

(3)However, the involuntary community patient cannot be examined by a practitioner under subsection (2)(b) if more than 2 months has elapsed since the day on which the patient was last examined under subsection (2)(a) by the supervising psychiatrist.

(4)Part 6 Division 3 Subdivision 6 applies in relation to the conduct of an examination under subsection (2).

(5)A practitioner who examines the involuntary community patient under subsection (2)(b) must provide the supervising psychiatrist with a written report of the examination that includes a recommendation about whether or not, having regard to the criteria specified in section 25, the patient is still in need of an involuntary treatment order.

(6)The supervising psychiatrist must file the following —

(a)a record of each examination of the involuntary community patient that the supervising psychiatrist conducts under subsection (2)(a);

(b)each report of an examination of the involuntary community patient provided to the supervising psychiatrist under subsection (5).

119.Supervising psychiatrist may request practitioner to examine involuntary community patient

(1)For the purpose of section 118(2)(b)(ii), the supervising psychiatrist may request another medical practitioner or a mental health practitioner to examine the involuntary community patient.

(2)The request must be in the approved form and may specify requirements for carrying out the examination or preparing the report or both.

120.What supervising psychiatrist may do after examination

(1)This section applies —

(a)on completion of the examination of the involuntary community patient by the supervising psychiatrist under section 118(2)(a); or

(b)on provision of a report about the involuntary community patient to the supervising psychiatrist under section 118(5).

(2)The supervising psychiatrist must consider whether or not the involuntary community patient is still in need of an involuntary treatment order and may make either of these orders —

(a)if satisfied, having regard to the criteria specified in section 25, that the involuntary community patient is still in need of an involuntary treatment order but not satisfied of the things referred to in section 114(a) and (b) — an inpatient treatment order authorising the patient’s detention at the authorised hospital specified in the order for the period specified in the order in accordance with section 87(a) or (b); or

(b)if satisfied, having regard to the criteria specified in section 25, that the involuntary community patient is no longer in need of an involuntary treatment order — an order revoking the community treatment order.

(3)The supervising psychiatrist cannot make an inpatient treatment order without examining the involuntary community patient in accordance with Part 6 Division 3 Subdivision 6, which examination can be the examination conducted under section 118(2)(a).

(4)The supervising psychiatrist can make an order revoking the community treatment order —

(a)after examining the involuntary community patient in accordance with Part 6 Division 3 Subdivision 6; or

(b)without examining the involuntary community patient but on the basis of a report provided to the psychiatrist under section 118(5).

(5)An order made under subsection (2) must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)if it is made under subsection (2)(a) — the reasons for making it;

(c)the name, qualifications and signature of the supervising psychiatrist making it.

(6)The supervising psychiatrist must, as soon as practicable, file the order and give a copy to the involuntary community patient.

(7)The making of an order under subsection (2) is an event to which Part 9 applies and the supervising psychiatrist is the person responsible under that Part for notification of that event.

Note for this section:

A community treatment order is automatically revoked under section 116(a) if a psychiatrist makes an inpatient treatment order under section 120(2)(a), or under section 116(b) if a psychiatrist makes an inpatient treatment order under any other provision of this Act, in respect of the involuntary community patient.

121.Continuation order

(1)The supervising psychiatrist may, on or within 7 days before the day on which a treatment period ends, make an order (a continuation order) continuing the community treatment order from the end of the treatment period for the further treatment period (not exceeding 3 months) that is specified in the continuation order.

(2)The supervising psychiatrist cannot make the continuation order without examining the involuntary community patient in accordance with Part 6 Division 3 Subdivision 6.

(3)The continuation order must be in the approved form and must include the following —

(a)the date when it is made;

(b)the treatment period for which the community treatment order is continued;

(c)the date when, because of the continuation, the community treatment order will expire;

(d)the reasons for the continuation;

(e)the name, qualifications and signature of the supervising psychiatrist.

(4)The supervising psychiatrist must, as soon as practicable, file the continuation order and give a copy to the involuntary community patient.

(5)The involuntary community patient may request in writing the supervising psychiatrist to obtain the opinion (a further opinion) of another psychiatrist about whether it is appropriate to have continued the community treatment order by making the continuation order (but not whether the length of the treatment period specified in the continuation order is appropriate).

(6)Sections 182 and 184 apply (with the necessary changes) in relation to the further opinion.

(7)The continuation order does not come into force or ceases to be in force, as the case requires, if the further opinion —

(a)is not obtained on or within 14 days after the day on which the involuntary community patient’s request is received by the supervising psychiatrist; or

(b)does not confirm that it is appropriate to have continued the community treatment order.

(8)Subsection (7) does not apply if the further opinion is not obtained within the 14‑day period referred to in subsection (7)(a) because the involuntary community patient did not attend an examination to be conducted by the psychiatrist responsible for giving the further opinion.

122.Varying order

(1)The supervising psychiatrist may, at any time while a community treatment order is in force, make an order varying the terms of the community treatment order in any way that is consistent with section 115 and the supervising psychiatrist considers appropriate.

(2)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the variation;

(c)the reasons for the variation;

(d)the name, qualifications and signature of the supervising psychiatrist.

(3)The supervising psychiatrist must, as soon as practicable, file the order and give a copy to the involuntary community patient.

123.Making inpatient treatment order or revoking community treatment order

(1)The supervising psychiatrist may, at any time while a community treatment order is in force, make either of these orders —

(a)if satisfied, having regard to the criteria specified in section 25(1), that the involuntary community patient is in need of an inpatient treatment order — an inpatient treatment order;

(b)if satisfied, having regard to the criteria specified in section 25, that the involuntary community patient is no longer in need of an involuntary treatment order — an order revoking the community treatment order.

(2)The supervising psychiatrist cannot make an inpatient treatment order without examining the involuntary community patient in accordance with Part 6 Division 3 Subdivision 6.

(3)The supervising psychiatrist can make an order revoking the community treatment order —

(a)after examining the involuntary community patient in accordance with Part 6 Division 3 Subdivision 6; or

(b)without examining the involuntary community patient, but in doing so must have regard to the information specified in subsection (4).

(4)The supervising psychiatrist must have regard to any information about the patient that is obtained by the psychiatrist —

(a)from either or both of —

(i)the involuntary community patient, including information obtained by observing the patient and asking the patient questions; and

(ii)any other person;

and

(b)from the involuntary community patient’s medical record.

(5)The supervising psychiatrist may make an order under subsection (1) without any of these things occurring —

(a)the involuntary community patient being in breach of the community treatment order under section 126;

(b)the supervising psychiatrist giving the involuntary community patient notice of a breach of the community treatment order under section 127(2)(b);

(c)the supervising psychiatrist making an order to attend under section 128(2).

(6)An order made under subsection (1) must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)if it is made under subsection (1)(a) — the reasons for making it;

(c)the name, qualifications and signature of the supervising psychiatrist.

(7)The supervising psychiatrist must, as soon as practicable, file the order and give a copy to the involuntary community patient.

(8)The making of an order under subsection (1) is an event to which Part 9 applies and the supervising psychiatrist is the person responsible under that Part for notification of that event.

Note for this section:

A community treatment order is automatically revoked under section 116(a) if a psychiatrist makes an inpatient treatment order under section 123(1)(a) in respect of the involuntary community patient.

124.Confirmation of inpatient treatment order

(1)This section applies if —

(a)the supervising psychiatrist makes an inpatient treatment order under section 120(2)(a) or 123(1)(a) in respect of the involuntary community patient; and

(b)the supervising psychiatrist and the involuntary community patient were not in one another’s physical presence when the examination for the purpose of making the inpatient treatment order was conducted; and

(c)since that examination was conducted, there has been no further examination of the involuntary community patient conducted by a psychiatrist during which the psychiatrist and the patient were in one another’s physical presence.

(2)Within 24 hours after the involuntary community patient is admitted by the authorised hospital in accordance with the inpatient treatment order, the order must be confirmed by a psychiatrist at the authorised hospital.

(3)The psychiatrist cannot confirm the inpatient treatment order without examining the involuntary community patient.

(4)Subdivision 6 applies in relation to the conduct of the examination.

(5)The confirmation must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for the confirmation;

(c)the name, qualifications and signature of the psychiatrist.

(6)The inpatient treatment order ceases to be in force if it is not confirmed in accordance with subsection (2).

(7)The release of a person because of subsection (6) is an event to which Part 9 applies and the person in charge of the authorised hospital is the person responsible under that Part for notification of that event.

125.Involuntary community patient to be advised of expiry

(1)This section applies if a community treatment order expires.

(2)The supervising psychiatrist must advise the involuntary community patient in writing of the expiry and its consequences.

(3)The supervising psychiatrist must file a copy of the advice.

Note for this Division:

Part 21 Division 3 confers jurisdiction on the Mental Health Tribunal to conduct reviews relating to involuntary patients.

Division 4 — Breach of order

126.When involuntary community patient will be in breach

An involuntary community patient breaches a community treatment order if —

(a)the involuntary community patient has not complied with the order; and

(b)all reasonable steps have been taken to obtain the involuntary community patient’s compliance; and

(c)the supervising psychiatrist reasonably believes that, despite the steps that have been taken, the non‑compliance is continuing and that, if the non‑compliance continues, there is —

(i)a significant risk to the health or safety of the involuntary community patient or to the safety of another person; or

(ii)a significant risk of serious harm to the involuntary community patient or to another person; or

(iii)a significant risk of the involuntary community patient suffering serious physical or mental deterioration.

127.What supervising psychiatrist must do if order breached

(1)This section applies if an involuntary community patient breaches a community treatment order.

(2)The supervising psychiatrist must —

(a)record the breach; and

(b)give notice of the breach to the involuntary community patient.

(3)The record of breach must be in the approved form and must include these things —

(a)details of the involuntary community patient’s non‑compliance;

(b)the steps that have been taken to obtain the involuntary community patient’s compliance;

(c)a statement that the supervising psychiatrist holds the belief referred to in section 126(c);

(d)the facts on which that belief is based;

(e)the reasons for that belief.

(4)The notice of breach must be in the approved form and must include these things —

(a)details of the involuntary community patient’s non‑compliance;

(b)details of what the involuntary community patient must do to comply;

(c)a statement that continued non‑compliance with the order may result in the involuntary community patient being required to attend a place to enable the patient to be provided with treatment.

(5)The supervising psychiatrist must, as soon as practicable, file the record of breach and a copy of the notice of breach.

128.Order to attend if non‑compliance continues

(1)This section applies if, having given the involuntary community patient notice of the breach under section 127(2)(b), the supervising psychiatrist is not satisfied that the patient is complying with the community treatment order.

(2)The supervising psychiatrist may make an order (an order to attend) requiring the involuntary community patient to attend at the time and place specified in the order to be provided with treatment.

(3)The order to attend must include a warning that, if the involuntary community patient does not comply with the order, a transport order authorising the patient’s apprehension and transport to the place specified in the order to attend may be made.

(4)The order to attend must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for making it;

(c)the time and place referred to in subsection (2);

(d)the warning referred to in subsection (3);

(e)the name, qualifications and signature of the supervising psychiatrist.

(5)The supervising psychiatrist must, as soon as practicable, file the order to attend and give a copy to the involuntary community patient.

129.Making transport order

(1)This section applies if an involuntary community patient does not comply with an order to attend.

(2)A medical practitioner or mental health practitioner may make a transport order in respect of the involuntary community patient.

(3)The practitioner cannot make the transport order unless satisfied that no other safe means of ensuring the involuntary community patient attends the place is reasonably available.

(4)Part 10 applies in relation to the transport order.

(5)The making of a transport order under subsection (2) is an event to which Part 9 applies and the practitioner who makes the order is the person responsible under that Part for notification of that event.

130.Detention at place specified in order to attend

(1)This section applies in relation to an involuntary community patient who —

(a)attends a place in compliance with an order to attend; or

(b)is transported to a place under a transport order made under section 129(2).

(2)The involuntary community patient —

(a)must be received into the place; and

(b)can be detained at the place until the first of these things occurs —

(i)treatment is provided to the involuntary community patient;

(ii)the supervising psychiatrist makes an order under section 131(2)(a) in respect of the patient;

(iii)the expiry of 6 hours from the time when the patient was received.

(3)A person prescribed by the regulations for this subsection is authorised to exercise the powers under section 172 for the purpose of detaining the involuntary community patient at the place.

(4)The involuntary community patient cannot continue to be detained if, by the end of the 6‑hour period referred to in subsection (2)(b)(iii) —

(a)treatment has not been provided to the involuntary community patient; and

(b)the supervising psychiatrist has not made an order under section 131(2)(a) in respect of the involuntary community patient.

(5)The release of a person because of subsection (4) is an event to which Part 9 applies and the person in charge of the place is the person responsible under that Part for notification of that event.

Notes for this section:

1.Part 7 Division 4 applies in relation to the release of an involuntary community patient who is detained at a place under section 130(2)(b).

2.Part 7 Division 5 applies if an involuntary community patient is absent without leave from the place where the patient can be detained under section 130(2)(b).

131.Other action that may be taken if non‑compliance

(1)This section applies in these circumstances —

(a)an involuntary community patient is in breach of a community treatment order under section 126;

(b)the supervising psychiatrist has given the involuntary community patient notice of the breach under section 127(2)(b);

(c)since the involuntary community patient was given the notice —

(i)the patient’s non‑compliance with the community treatment order has continued; or

(ii)the supervising psychiatrist has made an order to attend under section 128(2) with which the patient has not complied despite being given a copy of the order.

(2)The supervising psychiatrist may make either of these orders —

(a)if satisfied, having regard to the criteria specified in section 25, that the involuntary community patient is still in need of an involuntary treatment order but not satisfied of the things referred to in section 114(a) and (b) — an inpatient treatment order authorising the patient’s detention at the hospital specified in the order for the period specified in the order in accordance with section 87(a) or (b);

(b)if satisfied, having regard to the criteria specified in section 25, that the involuntary community patient is no longer in need of an involuntary treatment order — an order revoking the community treatment order.

(3)The supervising psychiatrist cannot make an inpatient treatment order without examining the involuntary community patient in accordance with Part 6 Division 3 Subdivision 6.

(4)The supervising psychiatrist cannot make an inpatient treatment order authorising the involuntary community patient’s detention at a general hospital unless —

(a)satisfied that attempting to take the involuntary community patient to, or to detain the involuntary community patient at, an authorised hospital poses a significant risk to the patient’s physical health; and

(b)the Chief Psychiatrist consents to the order being made.

(5)The supervising psychiatrist can make an order revoking the community treatment order —

(a)after examining the involuntary community patient in accordance with Part 6 Division 3 Subdivision 6; or

(b)without examining the involuntary community patient, but in doing so must have regard to any information about the patient that is obtained by the psychiatrist from —

(i)clinical observation of the involuntary community patient; and

(ii)any person other than the involuntary community patient; and

(iii)the involuntary community patient’s medical record.

(6)An order made under subsection (2) must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for making it;

(c)the name, qualifications and signature of the supervising psychiatrist.

(7)The supervising psychiatrist must, as soon as practicable, file the order and give a copy to the involuntary community patient.

(8)The making of an order under subsection (2) is an event to which Part 9 applies and the supervising psychiatrist is the person responsible under that Part for notification of that event.

Notes for this section:

1.A community treatment order is automatically revoked under section 116(a) if a psychiatrist makes an inpatient treatment order under section 131(2)(a) in respect of the involuntary community patient.

2.Part 6 Division 3 Subdivision 3 applies in relation to the transfer of an involuntary inpatient under an involuntary inpatient treatment order made under section 131(2)(a) from the general hospital specified in the order to an authorised hospital.

Division 5 — Transport to hospital

132.Application of this Division

This Division applies if the supervising psychiatrist makes an inpatient treatment order under section 120(2)(a), 123(1)(a) or 131(2)(a) authorising the involuntary community patient’s detention in a hospital.

133.Making transport order

(1)A medical practitioner or mental health practitioner may make a transport order in respect of the involuntary community patient.

(2)The practitioner cannot make the transport order unless satisfied that —

(a)the patient needs to be taken to the hospital; and

(b)no other safe means of taking the involuntary community patient is reasonably available.

(3)Part 10 applies in relation to the transport order.

Division 6 — Supervising psychiatrist and treating practitioner

134.Supervising psychiatrist

(1)The supervising psychiatrist under a community treatment order is responsible for supervising the carrying out of the order.

(2)The supervising psychiatrist under a community treatment order must be —

(a)the psychiatrist who makes the order; or

(b)another psychiatrist.

135.Change of supervising psychiatrist

(1)The supervising psychiatrist under a community treatment order —

(a)may, by arrangement, transfer a psychiatrist’s responsibility as the supervising psychiatrist under the order to another psychiatrist; and

(b)on transferring that responsibility, must inform the patient in writing of the transfer.

(2)The Chief Psychiatrist or a person authorised under subsection (3) —

(a)may, by arrangement, transfer a psychiatrist’s responsibility as the supervising psychiatrist under a community treatment order to another psychiatrist; and

(b)on transferring that responsibility, must inform the involuntary community patient in writing of the transfer.

(3)The Chief Psychiatrist may authorise a person in writing to exercise the power under subsection (2) in respect of all or any of the involuntary community patients —

(a)being provided with treatment under community treatment orders by the mental health service specified in the authorisation; or

(b)who reside in an area of the State specified in the authorisation.

(4)An authorisation under subsection (3) has effect for the period specified in the authorisation.

136.Treating practitioner

(1)The treating practitioner under a community treatment order is responsible for ensuring that the involuntary community patient is provided with the treatment specified in the treatment plan outlined in the order.

(2)The treating practitioner under a community treatment order —

(a)must be a medical practitioner or mental health practitioner; and

(b)can be the supervising psychiatrist under the order or another psychiatrist.

137.Change of treating practitioner

The supervising psychiatrist under a community treatment order —

(a)may, by arrangement, transfer a practitioner’s responsibility as the treating practitioner under the order to another practitioner; and

(b)on transferring that responsibility, must inform the involuntary community patient in writing of the transfer.

Part 9 — Notifiable events

Division 1 — Preliminary matters

138.Application of this Part

(1)This Part applies in relation to an event (a notifiable event) if a provision of this Act specifies —

(a)that the event is an event to which this Part applies; and

(b)who is the person responsible under this Part for notification of the event.

(2)Schedule 2 sets out for each event —

(a)the relevant provision; and

(b)a description of the event; and

(c)the person responsible for notification of the event.

Division 2 — Notification of carers, close family members and other personal support persons

139.Right of any carer, close family member or other personal support person to be notified

(1)Any carer, close family member or other personal support person of a person is entitled to be notified, as soon as practicable, that a notifiable event has occurred in respect of the person.

(2)However, the entitlement of a carer, close family member or other personal support person to be notified under subsection (1) is subject to section 142.

140.Person responsible required to notify any carer, close family member or other personal support person

(1)The person responsible under this Part for notification of a notifiable event must ensure that, as soon as practicable after the event occurs in respect of a person, any carer, close family member or other personal support person of the person is notified of the event.

(2)However, the person responsible is not required to notify a carer, close family member or other personal support person of a notifiable event if the carer, close family member or other personal support person is not entitled, for a reason referred to in section 142(1) or (2), to be notified of the event.

Note for this section:

Any notification provided under section 140(1) must be provided in accordance with section 9(2).

141.Reasonable efforts to notify carer, close family member or other personal support person

(1)Without limiting the requirement under section 140(1), the requirement is taken to have been complied with if the person responsible for notification ensures that reasonable efforts to notify any carer, close family member or other personal support person of the notifiable event continue to be made until the first of these things occurs —

(a)at least one carer, close family member or other personal support person is notified of the notifiable event; or

(b)it is reasonable for the person responsible to conclude that no carer, close family member or other personal support person can be notified of the notifiable event.

(2)The person responsible must ensure that one of the following is filed —

(a)a record of when and how any carer, close family member or other personal support person was notified under section 140(1) of the notifiable event;

(b)if no carer, close family member or other personal support person has been notified under section 140(1) of the notifiable event — a record of the reasons for that and any efforts made to do so.

142.Notification not in person’s best interests

(1)A carer, close family member or other personal support person is not entitled to be notified under section 140(1) of the making of an order under section 28(1) or (2) for the detention or further detention of a person, or the making of a transport order under section 29(1) in respect of a person, if the medical practitioner or authorised mental health practitioner who makes the order reasonably believes that it is not in the best interests of the person for the carer, close family member or other personal support person to be notified of the making of the order.

(2)A carer, close family member or other personal support person is not entitled to be notified under section 140(1) of any other notifiable event that occurs in respect of a person if a psychiatrist believes that it is not in the best interests of the person for the carer, close family member or other personal support person to be notified of the event.

(3)A practitioner or psychiatrist who decides under subsection (1) or (2) that a carer, close family member or other personal support person is not entitled to be notified of a notifiable event must, as soon as practicable —

(a)file a record of the decision and the reasons for it; and

(b)give a copy to the Chief Mental Health Advocate.

Note for this section:

For the purpose of deciding under section 142(1) or (2) what is or is not in the best interests of a person, Part 2 Division 3 applies.

143.Advising carer, close family member or other personal support person of decision

(1)A practitioner or psychiatrist who decides under section 142 that a carer, close family member or other personal support person is not entitled to be notified of a notifiable event must, if the carer, close family member or other personal support person requests to be notified of the event —

(a)advise the carer, close family member or other personal support person of the decision and the reasons for it; and

(b)file a record of the advice and give a copy to the person in respect of whom the notifiable event occurs.

(2)A carer, close family member or other personal support person to whom advice is provided orally under subsection (1)(a) may request the practitioner or psychiatrist who provided the advice to confirm the advice in writing.

(3)The practitioner or psychiatrist must —

(a)comply with the request; and

(b)file a copy of the confirmation and give another copy to the person in respect of whom the notifiable event occurs.

Note for this section:

Any advice provided under section 143(1)(a) or (3)(a) must be provided in accordance with section 9(2).

144.Revocation of decision

(1)A practitioner or psychiatrist may revoke a decision made under section 142 that a carer, close family member or other personal support person is not entitled to be notified of a notifiable event if satisfied that the reasons for making the decision no longer apply.

(2)The practitioner or psychiatrist must, as soon as practicable, file a record of the revocation and the reasons for it.

(3)If the carer, close family member or other personal support person previously requested to be notified of the event, the practitioner or psychiatrist must ensure that, as soon as practicable —

(a)the carer, close family member or other personal support person is notified of the notifiable event; and

(b)a record of when and how the carer, close family member or other personal support person was notified is filed and a copy given to the person in respect of whom the notifiable event occurred.

Division 3 — Notification of other persons and bodies

145.Making, revocation or expiry of involuntary treatment order

(1)The person responsible under this Part for notification of the making of an involuntary treatment order must ensure that, as soon as practicable, each of the persons and bodies specified in subsection (4) is —

(a)given a copy of the involuntary treatment order; and

(b)either —

(i)given the name and contact details of any carer, close family member or other personal support person who has been notified under section 140(1) of the making of the involuntary treatment order, to the extent that information is known to the person responsible; or

(ii)if no carer, close family member or other personal support person has been notified under section 140(1) of the making of the involuntary treatment order — advised of that and the reasons for it.

(2)The person responsible under this Part for notification of the making of an order revoking an involuntary treatment order must ensure that, as soon as practicable, each of the persons and bodies specified in subsection (4) is given a copy of the order.

(3)The person responsible under this Part for notification of the expiry of an involuntary treatment order must ensure that, as soon as practicable, each of the persons and bodies specified in subsection (4) is advised in writing of the expiry.

(4)For subsections (1), (2) and (3), each of these persons and bodies is specified —

(a)the Chief Mental Health Advocate;

(b)the Mental Health Tribunal;

(c)if the involuntary patient is a mentally impaired accused — the Mentally Impaired Accused Review Board.

(5)The person responsible must ensure that the following are filed —

(a)a record of —

(i)each person or body to whom a copy of an order is given under subsection (1)(a) or (2) or advice is provided under subsection (3); and

(ii)the date on which the copy is given or the advice provided to that person or body;

(b)a record of —

(i)each person or body to whom any information referred to in subsection (1)(b) is provided; and

(ii)details of the information provided to that person or body; and

(iii)the date on which the information is provided to that person or body.

Part 10  Transport orders

146.Application of this Part

This Part applies in relation to a transport order made under any of these provisions —

(a)section 29(1) to enable a person who is referred under section 26(2) or (3)(a) to be taken to an authorised hospital or other place;

(b)section 63(1) to enable a person who is under an inpatient treatment order made under section 61(1)(a) to be taken to a general hospital;

(c)section 63(1) to enable a person who is under an order for a further examination made under section 61(1)(c) to be taken to an authorised hospital;

(d)section 67(1) to enable an involuntary inpatient who is under a transfer order made under section 66(1) to be transferred to an authorised hospital;

(e)section 92(1) to enable an involuntary inpatient who is under a transfer order made under section 91(2) to be transferred to an authorised hospital;

(f)section 112(1) to enable an involuntary patient who is granted leave of absence, or whose leave of absence has been cancelled or expired, to be taken to a hospital;

(g)section 129(2) to enable an involuntary community patient who is not complying with an order to attend made under section 128(2) to be taken to a specified place;

(h)section 133(1) to enable an involuntary community patient who is under an inpatient treatment order made under section 120(2)(a), 123(1)(a) or 131(2)(a) to be taken to a hospital.

147.Transport officers

The regulations may authorise a person, or a person in a class of person, (a transport officer) to carry out a transport order.

148.Making transport order

(1)A transport order must be in the approved form and must include the following —

(a)the name of the person to be transported;

(b)the place from which the person is to be transported;

(c)the hospital or other place to which the person must be transported;

(d)the reasons why, in order to transport the person to that hospital or other place, it is necessary to make the order;

(e)whether the order is to be carried out by a transport officer or, if section 149(2) applies, a police officer;

(f)if the order is to be carried out by a police officer, having regard to the matters referred to in section 149(2)(a) and (b) — the reasons why it cannot be carried out by a transport officer;

(g)the date and time when the order is made;

(h)the date and time when the order will expire under section 150(2)(a), (b) or (c);

(i)whether or not the order can be extended because of section 151(2) or under section 152(3) and, if it can, the process for extending it;

(j)the name, qualifications and signature of the psychiatrist or practitioner making the order.

(2)A practitioner or psychiatrist who makes a transport order in respect of a person must, as soon as practicable —

(a)file it and give a copy to the person; and

(b)give a copy to the transport officer or police officer responsible for carrying out the order.

149.Operation of transport order

(1)A transport order made in respect of a person authorises a transport officer or, if subsection (2) applies, a police officer to do these things —

(a)apprehend the person and, for that purpose, exercise the powers under sections 159(2) and 172;

(b)if the person is apprehended — transport the person to the hospital or other place specified in the order as soon as practicable and, in any event, before the transport order expires;

(c)for the purpose of transporting the person, detain the person until the first of these things occurs —

(i)the person is received into the hospital or other place;

(ii)the transport order expires.

(2)A transport order can only authorise a police officer instead of a transport officer to carry out the order if the practitioner or psychiatrist making the order is satisfied —

(a)that there is a significant risk of serious harm to the person being transported or to another person; or

(b)that —

(i)a transport officer will not be available to carry out the order within a reasonable time; and

(ii)any delay in carrying out the order beyond that time is likely to pose a significant risk of harm to the person being transported or to another person.

150.Period of transport order

(1)A transport order remains in force for the period specified in subsection (2) in respect of the order.

(2)For subsection (1), the period is —

(a)if the transport order is made under section 29(1), the period —

(i)beginning at the time when the transport order is made; and

(ii)ending at the time when the referral expires under section 44 unless the transport order is extended because of section 151(2);

or

(b)if the transport order is made under section 63(1), the period —

(i)beginning at the time when the transport order is made; and

(ii)ending 72 hours after the time when the inpatient treatment order was made under section 61(1)(a) or the order for a further examination was made under section 61(1)(c), as the case requires, unless the transport order is extended under section 152(3);

or

(c)if the transport order is made under section 67(1), 92(1), 112(1), 129(2) or 133(1), the period —

(i)beginning at the time when the transport order is made; and

(ii)ending 72 hours afterwards unless the transport order is extended under section 152(3).

151.Extension of transport order made under s. 29(1) if referral extended

(1)This section applies if —

(a)a transport order is made under section 29(1) to enable a person who is referred to be taken to an authorised hospital or other place; and

(b)the place from which the person is being transported is outside a metropolitan area; and

(c)the referral is extended under section 45(3).

(2)The transport order is, because of this subsection, extended for the same period as the referral.

152.Extension of other transport orders

(1)This section applies if —

(a)a transport order is made under section 63(1), 67(1), 92(1), 112(1), 129(2) or 133(1) in respect of a person; and

(b)the place from which the person is being transported is outside a metropolitan area; and

(c)the transport officer or police officer who is transporting the person forms the opinion that the transport order is likely to expire before the person is received into the hospital or other place to which the person is being transported.

(2)The transport officer or police officer may orally request an extension of the transport order from a medical practitioner or mental health practitioner.

(3)The practitioner may make an order (an extension order) orally extending the transport order from the end of the period specified in section 150(2)(b) or (c) in respect of the order for the further period (not exceeding 72 hours) specified in the extension order.

(4)The practitioner must, as soon as practicable —

(a)record the extension order in the approved form, specifying —

(i)the date and time when the order was made; and

(ii)the date and time when, because of the extension, the transport order will expire;

and

(b)file the record and give a copy to the transport officer or police officer.

(5)The transport order cannot be extended more than once.

153.Revocation of transport order if referral revoked

A transport order made under section 29(1) in respect of a person who is referred under section 26(2) or (3)(a) is, because of this section, revoked if the referral is revoked under section 31(1).

154.Revocation of transport order if no longer needed

(1)A medical practitioner or mental health practitioner may make an order (a revocation order) revoking a transport order made in respect of a person if satisfied that the transport order is no longer needed.

(2)The revocation order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for the revocation;

(c)the name, qualifications and signature of the practitioner.

(3)The practitioner must, as soon as practicable —

(a)file the revocation order and give a copy to the person; and

(b)give a copy to the transport officer or police officer responsible for carrying out the transport order.

155.Return of person if transport order expires or is revoked

(1)Subsection (2) applies if a transport order made in respect of a person is revoked because of section 153, or expires, before the person is received into the hospital or other place to which the person was to have been transported under the order.

(2)The transport officer or police officer who was responsible for carrying out the transport order must take reasonable steps to ensure the person is taken, at the person’s election —

(a)back to the place from which the person was being or was to have been transported; or

(b)to a place reasonably nominated by the person.

(3)Subsection (2) does not require the person to be taken to a place if to do so poses a serious risk to the safety of the person or another person.

Part 11 — Apprehension, search and seizure powers

Division 1 — Apprehension powers

156.Apprehension by police officer of person suspected of having mental illness

(1)A police officer may apprehend a person if the officer reasonably suspects that the person —

(a)has a mental illness; and

(b)because of the mental illness, needs to be apprehended to —

(i)protect the health or safety of the person or the safety of another person; or

(ii)prevent the person causing, or continuing to cause, serious damage to property.

(2)For the purpose of apprehending a person under subsection (1), a police officer may exercise the powers under sections 159(2) and 172.

(3)A police officer —

(a)must, as soon as practicable after apprehending a person under subsection (1), arrange for the person to be assessed by a medical practitioner or authorised mental health practitioner for the purpose of deciding whether or not to refer the person under section 26(2) or (3)(a) for an examination to be conducted by a psychiatrist; and

(b)is authorised to detain the person until the first of these things occurs —

(i)the person is received into the place where the assessment will be conducted;

(ii)the person is delivered into the care of the medical practitioner or authorised mental health practitioner who will assess the person;

(iii)the police officer is satisfied that the grounds for suspecting that the person needs to be apprehended no longer exist.

(4)This section does not prevent a police officer from charging a person apprehended under subsection (1) with an offence.

157.Assessment of person arrested

(1)This section applies if —

(a)a person is arrested by a police officer on suspicion of having committed an offence; and

(b)the police officer reasonably suspects that the person has a mental illness for which the person is in need of immediate treatment.

(2)The police officer must, as soon as practicable, arrange for the person to be assessed by a medical practitioner or authorised mental health practitioner for the purpose of deciding whether or not to refer the person under section 26(2) or (3)(a) for an examination to be conducted by a psychiatrist.

(3)This section does not prevent a police officer from charging the person arrested with an offence.

158.Police must be notified when person leaves

(1)This section applies if —

(a)the medical practitioner or authorised mental health practitioner referred to in section 156(3)(a) or 157(2) decides not to refer the person under section 26(2) or (3)(a); or

(b)the person, having been referred under section 26(2) or (3)(a), cannot continue to be detained under this Act.

(2)The practitioner or the person in charge of the authorised hospital or other place where the person was being detained under this Act must ensure that —

(a)as soon as practicable, a police officer is informed that the person has not been referred under section 26(2) or (3)(a) or cannot continue to be detained under this Act; and

(b)as soon as practicable after the police officer is informed, a record of these things is filed —

(i)the name of the person who informed the police officer of the person’s release;

(ii)the police officer’s name, rank and location;

(iii)the date and time when the police officer was informed of the person’s release.

159.Apprehension of other persons

(1)This section applies in relation to the apprehension of a person —

(a)under section 99(a) by a police officer or person prescribed for the purpose of carrying out an apprehension and return order; or

(b)under section 149(1)(a) by a transport officer or police officer for the purpose of carrying out a transport order; or

(c)under section 156(1) by a police officer because the person is suspected of having a mental illness and needs to be apprehended.

(2)For the purpose of apprehending the person, the police officer, person prescribed or transport officer may do any of these things —

(a)enter any premises where the person is reasonably suspected to be;

(b)search, in accordance with sections 163 and 172, the person and any article found on or with the person;

(c)seize, in accordance with sections 164 and 172, any article listed in section 164(2) that is found on or with the person.

(3)However, a transport officer can only enter premises prescribed by the regulations for this subsection.

Division 2 — Search and seizure powers

160.Term used: approved form

In this Division —

approved form means —

(a)a form approved by the Commissioner of Police under section 169 for use by police officers under this Division; or

(b)a form approved by the Chief Psychiatrist under section 545(1) for use by other persons under this Division.

161.Authorised persons

The regulations may authorise a person, or a person in a class of person, (an authorised person) to exercise the powers under this Division.

162.Search of person while detained or admitted

(1)This section applies —

(a)to any of these people —

(i)a patient who is admitted by a mental health service;

(ii)a person who is detained under this Act at a mental health service or other place to enable an examination to be conducted by a psychiatrist;

(iii)any other person who presents at a mental health service for treatment;

and

(b)at these times —

(i)when the patient or other person is being admitted by, or is being received into, the mental health service or other place;

(ii)at any time while the patient or other person is being provided with treatment or care at the mental health service or other place.

(2)A police officer or authorised person who reasonably suspects that there is on or with the patient or other person any article listed in section 164(2) may —

(a)search, in accordance with sections 163 and 172, the person and any article found on or with the patient or other person; and

(b)seize, in accordance with sections 164 and 172, any article listed in section 164(2) that is found on or with the patient or other person.

163.Conduct of search

(1)This section applies in relation to a search of a person —

(a)under section 159(2)(b) by a police officer, person prescribed or transport officer; or

(b)under section 162(2)(a) by a police officer or authorised person.

(2)Before the search is conducted, the person who will conduct the search must, if reasonably practicable —

(a)identify himself or herself to the person; and

(b)inform the person of the reason for the search; and

(c)request the person to consent to being searched.

(3)The person conducting the search must, if practicable, be a person of the same gender as the person to be searched.

(4)The person conducting the search may do all or any of these things —

(a)scan the person with an electronic or mechanical device, whether hand held or not, to detect any thing;

(b)remove the person’s headwear, gloves, footwear or outer clothing (for example, a coat or jacket), but not the person’s inner clothing or underwear, in order to facilitate a frisk search;

(c)frisk search the person by quickly and methodically running the hands over the outside of the person’s clothing;

(d)search any article removed under paragraph (b).

(5)The person conducting the search may do all or any of these things for the purpose of conducting the search —

(a)search anything being carried by or under the immediate control of the person;

(b)order the person to remove anything that might injure the person conducting the search from any article that the person is wearing;

(c)photograph part or all of the search while it is being done;

(d)order the person to do anything reasonable to facilitate the exercise by the person conducting the search of any power in this section.

(6)The search must be conducted as follows —

(a)the search must be done as quickly as is reasonably practicable;

(b)the search must not be any more intrusive than is reasonably necessary in the circumstances;

(c)if the person conducting the search proposes to remove any article that the person is wearing — the person conducting the search must tell the person why it is considered necessary to do so;

(d)the person must be allowed to dress as soon as the search is finished;

(e)the person must be provided with a reasonably adequate replacement for any article of clothing or footwear seized if, due to the seizure, the person is left without adequate clothing or footwear in the circumstances.

164.Seizure of articles

(1)This section applies in relation to the seizure from a person of an article under section 159(2)(c) or 162(2)(b).

(2)Any of these articles may be seized —

(a)an intoxicant;

(b)an article, including a drug that is prescribed for the person, that may pose a serious risk to the health or safety of the person or another person;

(c)an article that the person conducting the search believes is likely to materially assist in determining any question in relation to the person that is likely to arise for determination under this Act.

(3)Any article that is seized must be dealt with under section 166 or 167.

165.Record of search and seizure

(1)A person who conducts a search of a person under section 159(2)(b) or 162(2)(a) must, as soon as practicable —

(a)record the search in accordance with subsection (2); and

(b)give the record of the search to, as the case requires —

(i)the person in charge of the mental health service or other place to which the person searched is required to be taken under the apprehension and return order or the transport order; or

(ii)the person in charge of the mental health service or other place at which the person searched is received, or the medical practitioner or authorised mental health practitioner into whose care the person is delivered, under section 156(3)(b)(i) or (ii); or

(iii)the person searched if the person is released without being taken to a mental health service or other place or delivered into the care of a medical practitioner or authorised mental health practitioner; or

(iv)the person in charge of the mental health service or other place where the search is conducted under section 162(2)(a).

(2)The record of the search must be in the approved form and must include the following —

(a)the date and time the search was conducted;

(b)the reasons for conducting the search;

(c)any article seized under section 159(2)(c) or 162(2)(b) in the course of the search;

(d)the name, sex, qualifications and signature of the person who conducted the search.

(3)The person to whom the record of the search is given under subsection (1)(b)(i), (ii) or (iv) must ensure that, as soon as practicable, the record is filed and a copy given to the person searched.

166.Dealing with articles seized when person apprehended

(1)This section applies in relation to an article that is seized under section 159(2)(c) from a person who is apprehended under section 99(a), 149(1)(a) or 156(1).

(2)The article must be dealt with —

(a)under subsection (3)(a) or (b); or

(b)otherwise according to law.

(3)The article must be —

(a)given to, as the case requires —

(i)the person in charge of the mental health service or other place referred to in section 165(1)(b)(i), (ii) or (iv) when the person is received there; or

(ii)the medical practitioner or authorised mental health practitioner referred to in section 165(1)(b)(ii) when the person is delivered into the practitioner’s care;

or

(b)if the person is released without being taken to a mental health service or other place or delivered into the care of a medical practitioner or authorised mental health practitioner — returned to the person when the person is released.

(4)A person who deals with an article under subsection (2)(a) or (b) must, as soon as practicable —

(a)record in the approved form details of how the article was dealt with; and

(b)give the record of those details to, as the case requires —

(i)the person in charge of the mental health service or other place referred to in section 165(1)(b)(i), (ii) or (iv) when the person is received there; or

(ii)the medical practitioner or authorised mental health practitioner referred to in section 165(1)(b)(ii) when the person is delivered into the practitioner’s care; or

(iii)if the person is released without being taken to a mental health service or other place or delivered into the care of a medical practitioner or authorised mental health practitioner — the person when the person is released.

(5)A person to whom a record is given under subsection (4)(b)(i) or (ii) must ensure that the record is filed as soon as practicable.

167.Return of articles given to or seized by mental health service

(1)This section applies in relation to an article that is —

(a)seized from a patient or other person under section 162(2)(b); or

(b)given to the person in charge of a mental health service or other place under section 166(3)(a)(i).

(2)The article must be dealt with —

(a)under subsection (3), (4), (5) or (6); or

(b)otherwise according to law.

(3)The article must be returned to the person when the person is released or discharged by or otherwise leaves the mental health service or other place unless subsection (4) applies.

(4)If, in the opinion of the person in charge of the mental health service or other place, the return of the article to the person may pose a serious risk to the health or safety of the person or another person, the article must be given to a carer, close family member or other personal support person of the person when the person is released or discharged by or otherwise leaves the mental health service or other place unless the person in charge considers that it is not appropriate to do so.

(5)If the article is not dealt with under subsection (3) or (4) when the person is released or discharged by or otherwise leaves the mental health service or other place —

(a)the article may be returned to the person, or may be given to a carer, close family member or other personal support person of the person, at any time afterwards; and

(b)subsections (3) and (4) apply (with the necessary changes) in relation to the article.

(6)If the article is not dealt with under subsection (3), (4) or (5), it —

(a)must be stored at the mental health service or other place; and

(b)may be destroyed or otherwise disposed of after 6 months.

(7)The person in charge of the mental health service or other place must ensure that a record of how the article was dealt with under this section is filed.

(8)The record must be in the approved form and must include these things —

(a)details of the article;

(b)if the article was returned to the person — the date when it was returned;

(c)if the article was not returned to the person — the reasons for not returning it;

(d)if the article was given to a carer, close family member or other personal support person — the date when it was given to that person;

(e)if the article was not given to a carer, close family member or other personal support person — the reasons for not giving it to that person;

(f)if the article was destroyed or otherwise disposed of under subsection (6)(b) —

(i)the date when it was destroyed or disposed of; and

(ii)the manner in which it was destroyed or disposed of;

(g)if the article was dealt with under subsection (2)(b) — any other relevant information.

168.Return of articles given to medical practitioner or authorised mental health practitioner

(1)This section applies in relation to an article that is given to a medical practitioner or authorised mental health practitioner under section 166(3)(a)(ii) who decides not to refer under section 26(2) or (3)(a) the person from whom the article was seized.

(2)The medical practitioner or authorised mental health practitioner must ensure that, as soon as practicable —

(a)the article is returned to the person or otherwise dealt with according to law; and

(b)a record of how the article was dealt with under paragraph (a) is filed and a copy given to the person.

169.Approval of forms for use by police officers under this Division

The Commissioner of Police may approve forms for use by police officers under this Division.

Note for this section:

The Chief Psychiatrist approves forms for use by other persons under this Division (see section 545(1)).

Part 12 — Exercise of certain powers

Division 1 — Detention powers

170.Principles relating to detention

These principles apply in relation to the detention of a person under this Act —

(a)the person must be detained for as brief a period as practicable;

(b)the degree of any force used to detain the person must be the minimum that is required to be used for that purpose;

(c)while the person is detained —

(i)there must be the least possible restriction on the person’s freedom of choice and movement consistent with the person’s detention; and

(ii)the person is entitled to reasonable privacy consistent with the person’s detention; and

(iii)the person must be treated with dignity and respect.

Division 2 — Ancillary powers: reasonable assistance and force and directions

171.Term used: prescribed provision

In this Division —

prescribed provision means a provision listed in the Table.

Table

s. 83(2)(c)

s. 86(c)

s. 99

s. 130(3)

s. 149(1)

Part 11

s. 225

 

172.Reasonable assistance and reasonable force authorised

(1)A person exercising a power under a prescribed provision may request another person to give the person reasonable assistance in exercising that power.

(2)A person exercising, or assisting in accordance with a request under subsection (1) another person in exercising, a power under a prescribed provision may use reasonable force in doing so.

173.Duty to obey directions

A person assisting a person in exercising a power under a prescribed provision must obey any lawful and reasonable direction of that person.

Penalty: a fine of $6 000.

174.Other written laws not affected

A prescribed provision does not affect any other written law relating to the apprehension or search of a person or to the seizure of an article from a person.

Note for this Division:

It is an offence to obstruct or hinder a person exercising, or assisting another person to exercise, a power under a prescribed provision (see section 580).

Part 13 — Provision of treatment generally

Division 1 — Voluntary patients

175.Informed consent necessary

(1)A voluntary patient cannot be provided with treatment without informed consent being given to the provision of the treatment.

(2)Subsection (1) does not apply in relation to any of these treatments because this Act makes specific provision in respect of each of them —

(a)electroconvulsive therapy;

(b)emergency psychiatric treatment;

(c)psychosurgery;

(d)treatment that is prohibited by section 210(1).

176.Informed consent must be filed

(1)The person responsible under subsection (2) must ensure that any informed consent given to the provision of treatment to a voluntary patient is filed.

(2)For subsection (1), the person responsible is —

(a)if the treatment is provided at a mental health service — the person in charge of the mental health service; or

(b)if the treatment is provided at a place other than a mental health service — the medical practitioner or mental health practitioner providing the treatment.

(3)The record of the informed consent must include —

(a)the date when the informed consent was given; and

(b)whether the informed consent was given —

(i)by the patient himself or herself; or

(ii)by a person authorised by law to give the informed consent on the patient’s behalf;

and

(c)if paragraph (b)(ii) applies —

(i)the name and contact details of the person who gave the informed consent; and

(ii)details of the person’s authority to do so.

Notes for this section:

1.For section 176(3)(b)(i), an adult can give consent by making an advance health directive (see the GAA Act section 110ZJ(2)).

2.For section 176(3)(b)(ii) —

(a)an adult’s enduring guardian or guardian or the person responsible for an adult can give consent on the adult’s behalf (see the GAA Act section 110ZJ(3) to (5)); or

(b)a child’s parent or guardian can give consent on the child’s behalf (see section 302(3) of this Act).

Division 2 — Involuntary patients and mentally impaired accused

177.Application of this Division

This Division applies in relation to —

(a)an involuntary patient; or

(b)a patient who is a mentally impaired accused required under the MIA Act to be detained at an authorised hospital.

178.Informed consent not necessary

(1)The patient can be provided with treatment without informed consent being given to the provision of the treatment.

(2)Subsection (1) does not apply in relation to any of these treatments because this Act makes specific provision in respect of each of them —

(a)electroconvulsive therapy;

(b)emergency psychiatric treatment;

(c)psychosurgery;

(d)treatment that is prohibited by section 210(1).

179.Patient’s psychiatrist must ensure regard had to patient’s wishes

(1)The patient’s psychiatrist must ensure that a medical practitioner, in deciding what treatment will be provided to the patient, has regard to the patient’s wishes in relation to the provision of treatment, to the extent that it is practicable to ascertain those wishes.

(2)The patient’s psychiatrist must ensure that a record of the following is filed —

(a)the patient’s wishes, to the extent they were able to be ascertained by the medical practitioner; and

(b)the things to which the medical practitioner had regard in ascertaining the patient’s wishes; and

(c)if the decision made by the medical practitioner is inconsistent with a treatment decision in an advance health directive, or a term of an enduring power of guardianship, made by the patient — the reasons the decision was made.

(3)The patient’s psychiatrist must ensure that, as soon as practicable, each of these people is given a copy of the reasons referred to in subsection (2)(c) —

(a)the patient;

(b)if the patient has an enduring guardian or guardian — the enduring guardian or guardian;

(c)if the patient has a nominated person — the nominated person unless the nominated person is not entitled, for the reason referred to in section 269(1), to be given a copy;

(d)if the patient has a carer — the carer unless the carer is not entitled, for the reason referred to in section 288(2) or 292(1), to be given a copy;

(e)if the patient has a close family member — the close family member unless the close family member is not entitled, for the reason referred to in section 288(2) or 292(1), to be given a copy;

(f)the Chief Psychiatrist;

(g)the Chief Mental Health Advocate.

(4)The patient’s psychiatrist is not required to comply with subsection (3) in relation to a decision made by a medical practitioner if each of the people referred to in subsection (2)(c) has been given a copy of the reasons for an earlier decision made by a medical practitioner that was inconsistent with the same treatment decision in the advance health directive or the same term in the enduring power of guardianship.

Notes for this section:

1.For the purpose of a medical practitioner ascertaining the patient’s wishes, Part 2 Division 4 applies.

2.In deciding what treatment will be provided to the patient, a medical practitioner must also have regard to —

(a)if the patient is a child, the views of the child’s parent or guardian (see section 301); and

(b)if the patient has a nominated person, except in certain circumstances, the views of the nominated person (see Part 16 Division 3 Subdivision 1); and

(c)if the patient has a carer or close family member, except in certain circumstances, the views of the carer or close family member (see Part 17 Division 2).

180.Requirements for ascertaining patient’s wishes

(1)The patient’s psychiatrist must ensure that, before a patient’s wishes in relation to the provision of treatment are sought to be ascertained, the patient is (to the extent that it is practicable to do so) to be —

(a)provided with the same explanation of the treatment; and

(b)given the same amount of time for consideration of the matters involved in the provision of the treatment; and

(c)given the same opportunities to discuss and obtain advice or assistance in relation to the provision of the treatment,

as would be required to be provided or given to a person before being asked to make a treatment decision about the provision of the treatment.

(2)For the purpose of subsection (1), sections 19 and 20 apply (with the necessary changes) in relation to ascertaining the patient’s wishes in relation to the provision of the treatment.

Note for this section:

Any explanation provided under section 180(1)(a) must be provided in accordance with section 9(2).

181.Record of treatment to be filed

The patient’s psychiatrist must ensure that a record of the treatment provided to the patient is filed.

182.Further opinion may be requested

(1)This section applies in relation to any of these people —

(a)the patient, whether or not the patient has the capacity to give informed consent to the treatment being provided to him or her were that consent required;

(b)if the patient does not have that capacity — the person who is authorised by law to give that consent on the patient’s behalf were that consent required;

(c)if the patient has a nominated person — the nominated person;

(d)if the person has a carer — the carer;

(e)if the person has a close family member — the close family member.

(2)A person to whom this section applies who is dissatisfied with the treatment being provided to the patient may request orally or in writing the patient’s psychiatrist or the Chief Psychiatrist to obtain the opinion (a further opinion) of a psychiatrist who is not the patient’s psychiatrist about whether it is appropriate to provide the treatment to the patient.

(3)The patient’s psychiatrist or the Chief Psychiatrist must file a record of an oral request or a written request.

(4)The patient’s psychiatrist or the Chief Psychiatrist must obtain the further opinion as soon as practicable after receiving the request unless —

(a)if a person referred to in subsection (1)(b) to (e) requests the further opinion — the patient objects to the further opinion being obtained; or

(b)under section 183 —

(i)the patient’s psychiatrist or the Chief Psychiatrist decides not to comply with the request; and

(ii)if the patient’s psychiatrist decides not to comply with the request — the Chief Psychiatrist confirms that decision.

(5)In obtaining the further opinion, the patient’s psychiatrist or the Chief Psychiatrist must have regard to the guidelines published under section 547(1)(c) about the independence of psychiatrists from whom further opinions are obtained.

(6)A psychiatrist cannot give a further opinion without examining the patient in accordance with Part 6 Division 3 Subdivision 6.

(7)The further opinion must be given in writing and may include recommendations about the provision of treatment to the patient.

(8)The patient’s psychiatrist must, as soon as practicable after obtaining the further opinion —

(a)file the opinion and give a copy to the patient; and

(b)if the opinion was requested by a person other than the patient — give a copy to that other person.

(9)The Chief Psychiatrist must, as soon as practicable after obtaining the further opinion, give a copy to each of these people —

(a)the patient’s psychiatrist, who must file the copy as soon as practicable;

(b)the patient;

(c)if the opinion was requested by a person other than the patient — that other person.

(10)In providing treatment to the patient, the patient’s psychiatrist must have regard to any further opinion relating to the provision of that treatment that is obtained under this section, including any recommendations included in the opinion under subsection (7).

183.Request for additional opinion may be refused

(1)This section applies if —

(a)a further opinion about the treatment being provided to a patient has been obtained under section 182; and

(b)a person in relation to whom that provision applies requests that the patient’s psychiatrist or the Chief Psychiatrist obtain an additional opinion under that provision about the treatment being provided to the patient.

(2)The patient’s psychiatrist or the Chief Psychiatrist may refuse to comply with the request if satisfied that, having regard to the guidelines published under section 547(1)(d) for that purpose, the additional opinion is not warranted.

(3)The patient’s psychiatrist must, as soon as practicable after deciding under subsection (2) not to comply with the request —

(a)file a record of the decision and the reasons for it; and

(b)give a copy to each of these people —

(i)the patient;

(ii)if the additional opinion was requested by a person other than the patient — that other person;

(iii)the Chief Psychiatrist.

(4)The Chief Psychiatrist must, as soon as practicable after receiving a copy of the record from the patient’s psychiatrist —

(a)confirm or refuse to confirm the decision of the patient’s psychiatrist; and

(b)record the confirmation or refusal and the reasons for it; and

(c)give a copy of the record to each of these people —

(i)the patient;

(ii)if the additional opinion was requested by a person other than the patient — that other person;

(iii)the patient’s psychiatrist, who must file the copy as soon as practicable.

(5)The Chief Psychiatrist must, as soon as practicable after deciding under subsection (2) not to comply with the request —

(a)file a record of the decision and the reasons for it; and

(b)give a copy of the record to each of these people —

(i)the patient;

(ii)if the additional opinion was requested by a person other than the patient — that other person;

(iii)the patient’s psychiatrist, who must file the copy as soon as practicable.

184.Chief Psychiatrist may request reconsideration of treatment

(1)This section applies if, after any further opinion in relation to a patient is obtained under section 182, the person who requested that it be obtained remains dissatisfied with the treatment being provided to the patient and advises the Chief Psychiatrist orally or in writing of that dissatisfaction.

(2)The Chief Psychiatrist must file a record of an oral advice or a written advice.

(3)The Chief Psychiatrist may request the patient’s psychiatrist to —

(a)reconsider the decision to provide the treatment; and

(b)give the Chief Psychiatrist a written report about the outcome of the reconsideration and the reasons for it.

(4)The patient’s psychiatrist must, as soon as practicable —

(a)give the report to the Chief Psychiatrist and file a copy; and

(b)give a copy to each of these people —

(i)the patient;

(ii)if the further opinion was requested by a person other than the patient — that other person.

(5)Subsection (1) does not limit the powers of the Chief Psychiatrist under section 520.

Division 3 — Treatment, support and discharge planning

185.Application of this Division

This Division applies in relation to —

(a)a patient who is admitted by a hospital as an involuntary patient whose detention at the hospital is authorised under an inpatient treatment order; or

(b)a patient who is admitted by an authorised hospital as a mentally impaired accused required under the MIA Act to be detained at the hospital; or

(c)a patient who is under a community treatment order.

186.Treatment, support and discharge plan

(1)The treatment, care and support provided to a patient must be governed by a treatment, support and discharge plan.

(2)The treatment, support and discharge plan for a patient referred to in section 185(a) or (b) must outline —

(a)the treatment and support that will be provided to the patient while admitted by the hospital; and

(b)the treatment and support that will be offered to the patient after the patient is discharged by the hospital.

(3)The treatment, support and discharge plan for a patient referred to in section 185(c) must outline —

(a)the treatment and support that will be provided to the patient under the community treatment order as set out in that order; and

(b)the treatment and support that will be offered to the patient when the patient is no longer under the community treatment order.

[Section 186 amended: No. 36 of 2015 s. 5.]

187.Preparation and review of plan

(1)A patient’s psychiatrist must ensure that a treatment, support and discharge plan for the patient —

(a)is prepared as soon as practicable after the patient is admitted by the hospital or the community treatment order is made; and

(b)is reviewed regularly; and

(c)is revised as necessary.

(2)The plan must be prepared, reviewed and revised having regard to the guidelines published under section 547(1)(e) for that purpose.

(3)The patient’s psychiatrist must ensure that —

(a)the plan (as prepared and as revised) is filed; and

(b)a copy of the plan (as prepared and as revised) is given to each of these people —

(i)the patient;

(ii)the person referred to in section 188(1)(b);

(iii)if the patient is a child — the child’s parent or guardian;

(iv)if the patient has a nominated person — the nominated person unless the nominated person is not entitled, for the reason referred to in section 269(1), to be given a copy;

(v)if the patient has a carer — the carer unless the carer is not entitled, for the reason referred to in section 288(2) or 292(1), to be given a copy;

(vi)if the patient has a close family member — the close family member unless the close family member is not entitled, for the reason referred to in section 288(2) or 292(1), to be given a copy.

(4)The patient’s psychiatrist may also ensure that a copy of the plan (as prepared or as revised) is given to any other person or body that the psychiatrist considers appropriate.

Note for this section:

For section 187(4), the patient’s psychiatrist may for example consider it appropriate to give a copy of the plan to a community mental health service.

188.Involvement in preparation and review of plan

(1)A patient’s psychiatrist must ensure that each of these people is involved in the preparation and review of the treatment, support and discharge plan for the patient —

(a)the patient —

(i)whether or not the patient has the capacity to consent to the plan being implemented in relation to himself or herself; and

(ii)whether or not the plan can be implemented without the patient’s consent;

(b)if the patient does not have the capacity referred to in paragraph (a)(i) —

(i)if the plan cannot be implemented without the patient’s consent — the person who is authorised by law to consent on the patient’s behalf; or

(ii)if the plan can be implemented without the patient’s consent — the person who would be authorised by law to consent on the patient’s behalf if the plan could not have been implemented without consent;

(c)if the patient is a child — the child’s parent or guardian;

(d)if the patient has a nominated person — the nominated person unless the nominated person is not entitled under section 269 to be involved;

(e)if the patient has a carer — the carer unless the carer is not entitled under section 288(2) or 292(1) to be involved;

(f)if the patient has a close family member — the close family member unless the close family member is not entitled under section 288(2) or 292(1) to be involved.

(2)Without limiting a requirement under subsection (1)(b) to involve the person who is or would be required by law to consent on the patient’s behalf, or under subsection (1)(c) to involve the child’s parent or guardian, in the preparation or review of the treatment, support and discharge plan, the requirement is taken to be complied with if the patient’s psychiatrist ensures that reasonable efforts continue to be made to involve the person in the preparation or review of the treatment, support and discharge plan until the first of these things occurs —

(a)the person is involved in that preparation or review;

(b)it is reasonable for the patient’s psychiatrist to conclude that the person cannot be involved in that preparation or review.

(3)Part 16 Division 3 Subdivision 2 applies in relation to a requirement under subsection (1)(d) to involve the patient’s nominated person in the preparation or review of the treatment, support and discharge plan.

(4)Part 17 Division 2 applies in relation to a requirement under subsection (1)(e) to consult a carer of the involuntary inpatient, or under subsection (1)(f) to consult a close family member of the patient, in the preparation or review of the treatment, support and discharge plan.

(5)The patient’s psychiatrist may also ensure that any other person or body that the psychiatrist considers appropriate is involved in the preparation or review of the treatment, support and discharge plan for the patient.

(6)The patient’s psychiatrist must ensure that each of the following is filed —

(a)a record of the involvement of any person referred to in subsection (1)(b) to (f), or any person or body referred to in subsection (5), in the preparation or review of the treatment, support and discharge plan;

(b)if a person referred to in subsection (1)(b) to (f) could not be involved in the preparation or review of the treatment, support and discharge plan — a record of the efforts made to do so.

Note for this section:

For section 188(5), the patient’s psychiatrist may for example consider it appropriate to involve a community mental health service.

Division 4 — Provision of treatment to patients of Aboriginal or Torres Strait Islander descent

189.Provision of treatment to patient of Aboriginal or Torres Strait Islander descent

To the extent that it is practicable and appropriate to do so, treatment provided to a patient who is of Aboriginal or Torres Strait Islander descent must be provided in collaboration with —

(a)Aboriginal or Torres Strait Islander mental health workers; and

(b)significant members of the patient’s community, including elders and traditional healers.

Division 5 — Compliance with standards and guidelines

190.Mental health service must comply with standards

The person in charge of a mental health service must ensure that any standards published under section 547(2) applicable to the mental health service are complied with.

191.Mental health service must take guidelines into account

The person in charge of a mental health service must ensure that, in the provision by the mental health service of treatment and care to persons who have a mental illness, regard is had to any guidelines published under section 547(1) or (3) applicable to that treatment and care.

Part 14 — Regulation of certain kinds of treatment and other interventions

Division 1 — Electroconvulsive therapy

192.Electroconvulsive therapy (ECT): meaning

Electroconvulsive therapy is treatment involving the application of electric current to specific areas of a person’s head to produce a generalised seizure that is modified by general anaesthesia and the administration of a muscle relaxing agent.

193.ECT offence

A person must not perform electroconvulsive therapy on another person except in accordance with sections 194 to 199.

Penalty: a fine of $15 000 and imprisonment for 2 years.

194.ECT on child under 14 years prohibited

A person cannot perform electroconvulsive therapy on a child under 14 years of age.

195.ECT on child over 14 years who is voluntary patient

(1)This section applies in relation to a child who has reached 14 years of age but is under 18 years of age and is a voluntary patient.

(2)A medical practitioner can perform electroconvulsive therapy on the child if —

(a)informed consent is given to the electroconvulsive therapy being performed; and

(b)the Mental Health Tribunal approves under Part 21 Division 6 the electroconvulsive therapy being performed; and

(c)in performing the electroconvulsive therapy, the medical practitioner has regard to the guidelines published under section 547(1)(f) for that purpose.

Note for this section:

For section 195(2)(a), the child or the child’s parent or guardian can give informed consent (see sections 14 and 15).

196.ECT on child over 14 years who is involuntary patient or mentally impaired accused

(1)This section applies in relation to a child who has reached 14 years of age but is under 18 years of age and is —

(a)an involuntary patient; or

(b)a patient who is a mentally impaired accused required under the MIA Act to be detained at an authorised hospital.

(2)A medical practitioner can perform electroconvulsive therapy on the child if —

(a)the Mental Health Tribunal approves under Part 21 Division 6 the electroconvulsive therapy being performed; and

(b)in performing the electroconvulsive therapy, the medical practitioner has regard to the guidelines published under section 547(1)(f) for that purpose.

197.ECT on adult voluntary patient

(1)This section applies in relation to an adult who is a voluntary patient.

(2)A medical practitioner can perform electroconvulsive therapy on the patient if —

(a)informed consent is given to the electroconvulsive therapy being performed; and

(b)the electroconvulsive therapy is performed at a mental health service approved under section 544 for that purpose; and

(c)in performing the electroconvulsive therapy, the medical practitioner has regard to the guidelines published under section 547(1)(f) for that purpose.

Notes for this section:

1.For section 197(2)(a), an adult can give informed consent in an advance health directive (see the GAA Act section 110ZJ(2)) or an adult’s enduring guardian or guardian or the person responsible for the adult can give informed consent on the adult’s behalf (see the GAA Act section 110ZJ(3) to (5)).

2.The GAA Act sections 110ZI and 110ZIA do not apply in relation to the performance of ECT on an adult who is a voluntary patient.

198.ECT on adult involuntary patient or mentally impaired accused

(1)This section applies in relation to an adult who is —

(a)an involuntary patient; or

(b)a patient who is a mentally impaired accused required under the MIA Act to be detained at an authorised hospital.

(2)A medical practitioner can perform electroconvulsive therapy on the patient if —

(a)the Mental Health Tribunal approves under Part 21 Division 6 the electroconvulsive therapy being performed; and

(b)in performing the electroconvulsive therapy, the medical practitioner has regard to the guidelines published under section 547(1)(f) for that purpose.

199.Emergency ECT on adult involuntary patient or mentally impaired accused

(1)This section applies in relation to an adult who is —

(a)an involuntary patient; or

(b)a patient who is a mentally impaired accused required under the MIA Act to be detained at an authorised hospital.

(2)A medical practitioner can perform electroconvulsive therapy on the patient if —

(a)the patient needs to be provided with electroconvulsive therapy —

(i)to save the patient’s life; or

(ii)because there is an imminent risk of the patient behaving in a way that is likely to result in serious physical injury to the patient or another person;

and

(b)the electroconvulsive therapy is performed at a mental health service approved under section 544 for that purpose; and

(c)the Chief Psychiatrist approves the electroconvulsive therapy being performed; and

(d)in performing the electroconvulsive therapy, the medical practitioner has regard to the guidelines published under section 547(1)(f) for that purpose.

(3)In approving the electroconvulsive therapy being performed, the Chief Psychiatrist must have regard to the guidelines published under section 547(1)(f) for that purpose.

200.Report to Mentally Impaired Accused Review Board

(1)This section applies in relation to a patient who is a mentally impaired accused required under the MIA Act to be detained at an authorised hospital.

(2)The patient’s psychiatrist must report the performance of a course of electroconvulsive therapy on the patient as soon as practicable to the Mentally Impaired Accused Review Board.

(3)The report must be accompanied by a copy of the approval of the Mental Health Tribunal or the Chief Psychiatrist, as the case requires.

201.Statistics about ECT

(1)This section applies in relation to a mental health service where electroconvulsive therapy is performed.

(2)In this section —

month means any of the 12 months of the year;

serious adverse event, in relation to a course of treatments with electroconvulsive therapy, includes any of the following —

(a)premature consciousness during a treatment;

(b)anaesthetic complications (for example, cardiac arrhythmia) during recovery from a treatment;

(c)an acute and persistent confused state during recovery from a treatment;

(d)muscle tears or vertebral column damage;

(e)severe and persistent headaches;

(f)persistent memory deficit.

(3)The person in charge of the mental health service must, as soon as practicable after the end of each month, report to the Chief Psychiatrist on these matters —

(a)the number of people in respect of whom a course of electroconvulsive therapy at the mental health service was completed under subsection (4), or was discontinued under subsection (5), during the month;

(b)the number of those people who were children;

(c)the number of those people who were voluntary patients;

(d)the number of those voluntary patients who were children;

(e)the number of those people who were involuntary patients;

(f)the number of those involuntary patients who were children;

(g)the number of those people who were mentally impaired accused required under the MIA Act to be detained at an authorised hospital;

(h)the number of those mentally impaired accused who were children;

(i)the number of treatments with electroconvulsive therapy in each of those courses;

(j)the number of those courses that were courses of emergency electroconvulsive therapy performed under section 199;

(k)details of any serious adverse event that occurred, or is suspected of having occurred, during or after any of those courses.

(4)For the purposes of subsection (3)(a), a course of electroconvulsive therapy is taken to have been completed during a month if the last treatment in the course was performed during the month, whether or not any of the other treatments in the course were performed during the month.

(5)For the purposes of subsection (3)(a), a course of electroconvulsive therapy is taken to have been discontinued during a month if —

(a)one or more of the treatments in the course have been performed, whether or not during the month; and

(b)the decision not to perform any more of the treatments in the course was made (for whatever reason) during the month.

(6)The report must be in the approved form.

Division 2 — Emergency psychiatric treatment

202.Emergency psychiatric treatment: meaning

(1)Emergency psychiatric treatment is treatment that needs to be provided to a person —

(a)to save the person’s life; or

(b)to prevent the person from behaving in a way that is likely to result in serious physical injury to the person or another person.

(2)Emergency psychiatric treatment does not include any of these treatments —

(a)electroconvulsive therapy;

(b)psychosurgery;

(c)treatment that is prohibited by section 210(1).

203.Informed consent not required

A medical practitioner may provide a person with emergency psychiatric treatment without informed consent being given to the provision of the treatment.

Note for this section:

The GAA Act sections 110ZI and 110ZIA do not apply in relation to emergency psychiatric treatment.

204.Record of emergency psychiatric treatment

(1)A medical practitioner who provides emergency psychiatric treatment to a person must, as soon as practicable —

(a)file a record, in accordance with subsection (2), of the provision of the emergency psychiatric treatment to the person; and

(b)give a copy of the record to each of these people —

(i)the person;

(ii)the Chief Psychiatrist;

(iii)if the person is a mentally impaired accused — the Mentally Impaired Accused Review Board.

(2)The record of the treatment provided must be in the approved form and must include these things —

(a)the name of the person provided with the treatment;

(b)the name and qualifications of the practitioner who provided the treatment;

(c)the names of any other people involved in providing the treatment;

(d)the date, time and place the treatment was provided;

(e)particulars of the circumstances in which the treatment was provided;

(f)particulars of the treatment provided.

Division 3 — Psychosurgery

205.Psychosurgery: meaning

Psychosurgery is treatment involving —

(a)the use of a surgical technique or procedure or intracerebral electrodes to create in a person’s brain a lesion intended (whether alone or in combination with one or more other lesions created at the same or other times) to alter permanently —

(i)the person’s thoughts or emotions; or

(ii)the person’s behaviour other than behaviour secondary to a paroxysmal cerebral dysrhythmia;

or

(b)the use of intracerebral electrodes to stimulate a person’s brain without creating a lesion with the intention that the stimulation (whether alone or in combination with other such stimulation at the same or other times) will influence or alter temporarily —

(i)the person’s thoughts or emotions; or

(ii)the person’s behaviour other than behaviour secondary to a paroxysmal cerebral dysrhythmia.

206.Psychosurgery offence

A person must not perform psychosurgery on another person except in accordance with sections 207 and 208.

Penalty: imprisonment for 5 years.

207.Psychosurgery on child under 16 years prohibited

A person cannot perform psychosurgery on a child under 16 years of age.

208.Psychosurgery on adult or child over 16 years old

(1)This section applies in relation to a patient who is —

(a)an adult; or

(b)a child who has reached 16 years of age but is under 18 years of age.

(2)A neurosurgeon can perform psychosurgery on the patient if —

(a)the patient gives informed consent to the psychosurgery being performed on himself or herself; and

(b)the Mental Health Tribunal approves under Part 21 Division 7 the psychosurgery being performed.

Notes for this section:

1.For the purpose of section 208(2)(a), an adult patient can give informed consent in an advance health directive (see the GAA Act section 110ZJ(2)).

2.For the purpose of section 208(2)(a), a child can only give informed consent if the child has the capacity to do so (see Part 5 Division 1).

209.Report to Chief Psychiatrist and Mentally Impaired Accused Review Board

(1)A patient’s psychiatrist must report the performance of psychosurgery on the patient as soon as practicable to —

(a)the Chief Psychiatrist; and

(b)if the patient is a mentally impaired accused — the Mentally Impaired Accused Review Board.

(2)The report must be accompanied by a copy of the Mental Health Tribunal’s approval.

Division 4 — Deep sleep and insulin coma therapy

210.Deep sleep and insulin coma therapy prohibited

(1)A person must not perform any of these things on another person —

(a)deep sleep therapy;

(b)insulin coma therapy;

(c)insulin sub coma therapy.

Penalty: imprisonment for 5 years.

(2)An offence under subsection (1) is a crime.

Division 5 — Seclusion

211.Terms used

In this Division —

oral authorisation means an authorisation given orally under section 214(1);

seclusion order —

(a)means a seclusion order made under section 215(1); and

(b)includes a seclusion order as extended under section 218(1).

212.Seclusion: meaning

(1)Seclusion is the confinement of a person who is being provided with treatment or care at an authorised hospital by leaving the person at any time of the day or night alone in a room or area from which it is not within the person’s control to leave.

(2)A person is not secluded merely because the person is alone in a room or area that the person is unable to leave because of frailty, illness or mental or physical disability.

213.Seclusion must be authorised

A person must not keep another person in seclusion except in accordance with an oral authorisation or a seclusion order.

Penalty: a fine of $6 000.

214.Giving oral authorisation

(1)A medical practitioner or mental health practitioner at an authorised hospital or the person in charge of a ward at an authorised hospital may orally authorise the seclusion of any of these people —

(a)a person who is a patient admitted by the authorised hospital;

(b)a person who is referred under section 26(2) or 36(2) for an examination to be conducted by a psychiatrist at the authorised hospital;

(c)a person who is under an order made under section 55(1)(c) or 61(1)(c) to enable an examination to be conducted by a psychiatrist at the authorised hospital.

(2)A person cannot give an oral authorisation in respect of a person unless satisfied of the matters specified in section 216.

(3)A person giving an oral authorisation in respect of a person must specify the room or area where the person can be secluded.

(4)A person who gives an oral authorisation in respect of a person must, as soon as practicable after the person is secluded under the authorisation —

(a)record the oral authorisation in the approved form, specifying the following —

(i)the date and time when it was given;

(ii)the room or area specified under subsection (3);

(iii)the reasons for giving it;

and

(b)file the record and give a copy to the person.

(5)A mental health practitioner or the person in charge of a ward who gives an oral authorisation in respect of a person must, as soon as practicable and, in any event, within sufficient time to enable the person to be examined as required by section 222(4) or 223(2), inform a medical practitioner as to whether —

(a)the person is secluded under the oral authorisation; or

(b)the person was secluded under the oral authorisation but has since been released from seclusion.

(6)A mental health practitioner or the person in charge of a ward who informs a medical practitioner under subsection (5) must, as soon as practicable —

(a)record in the approved form —

(i)the medical practitioner’s name and qualifications; and

(ii)the date and time when the medical practitioner was informed;

and

(b)file the record and give a copy to the person.

(7)If a seclusion order confirming the oral authorisation is not made (either by the person who gave the oral authorisation or, if that person is not reasonably available, another person who is authorised to make a seclusion order) as soon as practicable and, in any event, within 2 hours after the time when the person is secluded under the authorisation —

(a)the person cannot continue to be secluded and must be released from seclusion; and

(b)the person who gave the oral authorisation or, if that person is not reasonably available, another person who is authorised to make a seclusion order must ensure that the person is informed of that fact and released from seclusion.

215.Making seclusion order

(1)A medical practitioner or mental health practitioner at an authorised hospital or the person in charge of a ward at an authorised hospital may make a seclusion order authorising the seclusion of any of these people —

(a)a person who is a patient admitted by the authorised hospital;

(b)a person who is referred under section 26(2) or 36(2) for an examination to be conducted by a psychiatrist at the authorised hospital;

(c)a person who is under an order made under section 55(1)(c) or 61(1)(c) to enable an examination to be conducted by a psychiatrist at the authorised hospital.

(2)A person cannot make a seclusion order in respect of a person unless satisfied of the matters specified in section 216.

(3)A seclusion order must be in the approved form and must include the following —

(a)the name and date of birth of the person being secluded under the order;

(b)the date and time when the order is made;

(c)the date and time when any oral authorisation being confirmed by the order was given;

(d)the period for which the person can be secluded under the order, which cannot exceed 2 hours including the period for which the person was secluded under any oral authorisation being confirmed by the order;

(e)the room or area where the person can be secluded;

(f)with reference to the criteria specified in section 216(1), the reasons for authorising the seclusion;

(g)if a mental health practitioner or the person in charge of a ward makes the order — with reference to the criteria specified in section 216(2), the reasons for the urgency;

(h)particulars of any observations made about the person —

(i)if the order is confirming an oral authorisation — when the person was secluded under the oral authorisation; or

(ii)otherwise — when the person is secluded under the order;

(i)particulars of any directions given by a medical practitioner or mental health practitioner about the treatment and care to be provided to the person while secluded;

(j)the name, qualifications and signature of the person making the order.

(4)A mental health practitioner or the person in charge of a ward who makes a seclusion order in respect of a person must, as soon as practicable and, in any event, within sufficient time to enable the person to be examined as required by section 222(4) or 223(2), inform a medical practitioner as to whether —

(a)the person is secluded under the seclusion order; or

(b)the person was secluded under the seclusion order but has since been released from seclusion.

(5)A mental health practitioner or the person in charge of a ward who informs a medical practitioner under subsection (4) must, as soon as practicable —

(a)record in the approved form —

(i)the medical practitioner’s name and qualifications; and

(ii)the date and time when the medical practitioner was informed;

and

(b)file the record and give a copy to the person.

(6)The person who makes a seclusion order in respect of a person must, as soon as practicable after the person is secluded under the order, file it and give a copy to the person.

216.Criteria for authorising seclusion

(1)A person cannot give an oral authorisation or make a seclusion order in respect of a person unless satisfied of these things —

(a)the person needs to be secluded to prevent the person from —

(i)physically injuring himself or herself or another person; or

(ii)persistently causing serious damage to property;

and

(b)there is no less restrictive way of preventing the injury or damage.

(2)A mental health practitioner or the person in charge of a ward cannot give an oral authorisation or make a seclusion order in respect of a person unless also satisfied that —

(a)the person needs to be secluded urgently; and

(b)a medical practitioner is not reasonably available to give an oral authorisation or make a seclusion order in respect of the person.

217.Treating psychiatrist (if any) to be informed

(1)This section applies if —

(a)a person secluded under an oral authorisation or seclusion order has a treating psychiatrist; and

(b)the treating psychiatrist did not give the oral authorisation or make the seclusion order; and

(c)the medical practitioner informed under section 214(5) or 215(4) of the person’s seclusion is not the treating psychiatrist.

(2)The person who gave the oral authorisation or made the seclusion order must, as soon as practicable and, in any event, within 2 hours after the time when the person is secluded under the authorisation or order, inform the treating psychiatrist as to whether —

(a)the person is secluded under the authorisation or order; or

(b)the person was secluded under the authorisation or order but has since been released from seclusion.

(3)A person who informs the treating psychiatrist under subsection (2) must, as soon as practicable —

(a)record in the approved form —

(i)the treating psychiatrist’s name and qualifications; and

(ii)the date and time when the treating psychiatrist was informed;

and

(b)file the record and give a copy to the person.

218.Extending seclusion order

(1)A medical practitioner may make an order extending a seclusion order in force in respect of a person from the end of the period of seclusion under the seclusion order for the further period (not exceeding 2 hours) specified in the order.

(2)The medical practitioner cannot extend the seclusion order unless, immediately before doing so, the medical practitioner examines the person in accordance with section 222(4).

(3)The medical practitioner must, as soon as practicable, file the order and give a copy to the person.

219.Revoking seclusion order

(1)A medical practitioner or mental health practitioner or the person in charge of a ward at an authorised hospital may make an order revoking a seclusion order in force in respect of a person.

(2)The order must be in the approved form and must include the following —

(a)the date and time when the seclusion order is revoked;

(b)the name, qualifications and signature of the person making it.

(3)The person who makes the order must, as soon as practicable, file it and give a copy to the person.

220.Release of person on revocation or expiry of seclusion order

A medical practitioner or mental health practitioner must, as soon as practicable after the time when a person cannot continue to be secluded under a seclusion order —

(a)inform the person of that fact; and

(b)ensure that the person is released from seclusion.

221.Record of seclusion order expiring

A medical practitioner or mental health practitioner must, as soon as practicable after a seclusion order expires, file a record in the approved form of the date and time of the expiry.

222.Requirements relating to seclusion

(1)This section applies while a person is secluded under an oral authorisation or a seclusion order.

(2)The person in charge of the ward where the person is secluded must ensure that the requirements specified in this section, and any other requirements prescribed by the regulations for this section, are complied with.

(3)A mental health practitioner or a nurse must observe the person every 15 minutes and, as soon as practicable, file a record in the approved form of those observations and give a copy to the person.

(4)A medical practitioner must examine the person at least every 2 hours and, as soon as practicable —

(a)record in the approved form these things —

(i)the medical practitioner’s name and qualifications;

(ii)the date and time of the examination;

(iii)the results of the examination, including whether or not the medical practitioner considers that, having regard to the criteria specified in section 216(1), the person should continue to be secluded;

and

(b)file the record and give a copy to the person.

(5)The person must be provided with these things —

(a)the bedding and clothing appropriate in the circumstances;

(b)sufficient food and drink;

(c)access to toilet facilities;

(d)any other care appropriate to the person’s needs.

223.Examination of person released from seclusion

(1)This section applies whenever a person is released from seclusion under an oral authorisation or a seclusion order.

(2)The person in charge of the ward where the person was secluded must ensure —

(a)that the person is examined by a medical practitioner within 6 hours after the time when the person is released from the seclusion; or

(b)if the person is to be released or discharged by, or against medical advice wants to leave, the authorised hospital where the person was secluded before being examined under paragraph (a) — that the person is offered an examination by a medical practitioner to be conducted before the person is released, discharged or leaves.

(3)A medical practitioner who examines a person for the purposes of subsection (2) must, as soon as practicable —

(a)record in the approved form these things —

(i)the medical practitioner’s name and qualifications;

(ii)the date and time of the examination;

(iii)the results of the examination, including any complication of or deterioration in the person’s mental or physical condition that is a result of, or may be the result of, the person being secluded;

and

(b)file the record and give a copy to the person.

224.Report to Chief Psychiatrist and Mentally Impaired Accused Review Board

(1)This section applies whenever a person is released from seclusion under an oral authorisation or a seclusion order.

(2)The treating psychiatrist or, if the person does not have a treating psychiatrist, the person in charge of the authorised hospital where the person was secluded must, as soon as practicable, give the documents specified in subsection (3) relating to the seclusion to —

(a)the Chief Psychiatrist; and

(b)if the person is a mentally impaired accused — the Mentally Impaired Accused Review Board.

(3)For subsection (2), these documents are specified —

(a)a copy of the record of the oral authorisation (if any) made under section 214(4)(a);

(b)a copy of the seclusion order (if any) made under section 215(1);

(c)a copy of any order extending the seclusion order made under section 218(1);

(d)a copy of any order revoking the seclusion order made under section 219(1) or any record of the expiry of the seclusion order under section 221;

(e)a copy of each of the records made under section 214(6)(a), 215(5)(a), 217(3)(a), 222(3) and (4)(a) and 223(3)(a).

(4)The treating psychiatrist or person in charge must, as soon as practicable, file a record of having complied with subsection (2).

225.Reasonable assistance and force authorised

A person prescribed by the regulations for this section is authorised to exercise the powers under section 172 for the purpose of secluding a person under an oral authorisation or a seclusion order.

Division 6 — Bodily restraint

226.Terms used

In this Division —

bodily restraint order —

(a)means a bodily restraint order made under section 231(1); and

(b)includes a bodily restraint order as varied under section 234(1) or (3);

oral authorisation means an authorisation given orally under section 230(1).

227.Bodily restraint: meaning

(1)Bodily restraint is the physical or mechanical restraint of a person who is being provided with treatment or care at an authorised hospital.

(2)Physical restraint is the restraint of a person by the application of bodily force to the person’s body to restrict the person’s movement.

(3)A person is not being physically restrained merely because the person is being provided with the physical support or assistance reasonably necessary —

(a)to enable the person to carry out daily living activities; or

(b)to redirect the person because the person is disoriented.

(4)Mechanical restraint is the restraint of a person by the application of a device (for example, a belt, harness, manacle, sheet or strap) to a person’s body to restrict the person’s movement.

(5)Mechanical restraint does not include either of these forms of restraint —

(a)the appropriate use of a medical or surgical appliance in the treatment of a physical illness or injury;

(b)the appropriate use of furniture that restricts a person’s capacity to get off the furniture (for example, a bed fitted with cot sides or a chair fitted with a table across the arms).

(6)Bodily restraint does not include —

(a)physical or mechanical restraint by a police officer acting in the course of duty; or

(b)physical restraint by a person exercising a power under section 172(2).

228.Principles relating to use of bodily restraint

These principles apply in relation to the use of bodily restraint on a person under this Division —

(a)the degree of force used to restrain the person must be the minimum that is required in the circumstances;

(b)while the person is restrained —

(i)there must be the least possible restriction on the person’s freedom of movement consistent with the person’s restraint; and

(ii)the person must be treated with dignity and respect.

229.Bodily restraint must be authorised

A person must not use bodily restraint on another person except in accordance with an oral authorisation or a bodily restraint order.

Penalty: a fine of $6 000.

230.Giving oral authorisation

(1)A medical practitioner or mental health practitioner at an authorised hospital or the person in charge of a ward at an authorised hospital may orally authorise the bodily restraint of any of these people —

(a)a person who is a patient admitted by the authorised hospital;

(b)a person who is referred under section 26(2) or 36(2) for an examination to be conducted by a psychiatrist at the authorised hospital;

(c)a person who is under an order made under section 55(1)(c) or 61(1)(c) to enable an examination to be conducted by a psychiatrist at the authorised hospital.

(2)A person cannot give an oral authorisation in respect of a person unless satisfied of the matters specified in section 232.

(3)A person giving an oral authorisation in respect of a person must specify —

(a)whether physical or mechanical restraint can be used to restrain the person; and

(b)if mechanical restraint can be used —

(i)the device that can be used to restrain the person; and

(ii)the way in which the device can be applied to the person’s body.

(4)A person who gives an oral authorisation in respect of a person must, as soon as practicable after the person is restrained under the authorisation —

(a)record the oral authorisation in the approved form, specifying the following —

(i)the date and time when it was given;

(ii)the matters specified under subsection (3);

(iii)the reasons for giving it;

and

(b)file the record and give a copy to the person.

(5)A mental health practitioner or the person in charge of a ward who gives an oral authorisation in respect of a person must, as soon as practicable and, in any event, within sufficient time to enable the person to be examined as required by section 238(4) or 239(2)(a), inform a medical practitioner as to whether —

(a)the person is restrained under the oral authorisation; or

(b)the person was restrained under the oral authorisation but has since been released from bodily restraint.

(6)A mental health practitioner or the person in charge of a ward who informs a medical practitioner under subsection (5) must, as soon as practicable —

(a)record in the approved form —

(i)the medical practitioner’s name and qualifications; and

(ii)the date and time when the medical practitioner was informed;

and

(b)file the record and give a copy to the person.

(7)If a bodily restraint order confirming the oral authorisation is not made (either by the person who gave the oral authorisation or, if that person is not reasonably available, another person who is authorised to make a bodily restraint order) as soon as practicable and, in any event, within 30 minutes after the time when the person is restrained under the authorisation —

(a)the person cannot continue to be restrained and must be released from bodily restraint; and

(b)the person who gave the oral authorisation or, if that person is not reasonably available, another person who is authorised to make a bodily restraint order must ensure that the person is informed of that fact and released from bodily restraint.

231.Making bodily restraint order

(1)A medical practitioner or mental health practitioner at an authorised hospital or the person in charge of a ward at an authorised hospital may make a bodily restraint order authorising the bodily restraint of any of these people —

(a)a person who is a patient admitted by the authorised hospital;

(b)a person who is referred under section 26(2) or 36(2) for an examination to be conducted by a psychiatrist at the authorised hospital;

(c)a person who is under an order made under section 55(1)(c) or 61(1)(c) to enable an examination to be conducted by a psychiatrist at the authorised hospital.

(2)A person cannot make a bodily restraint order in respect of a person unless satisfied of the matters specified in section 232.

(3)A bodily restraint order must be in the approved form and must include the following —

(a)the name and date of birth of the person being restrained under the order;

(b)the date and time when the order is made;

(c)the date and time when any oral authorisation being confirmed by the order was given;

(d)the period for which the person can be restrained under the order, which cannot exceed 30 minutes including the period for which the person was restrained under any oral authorisation being confirmed by the order;

(e)whether physical or mechanical restraint can be used to restrain the person;

(f)if mechanical restraint can be used —

(i)the device that can be used to restrain the person; and

(ii)the way in which the device can be applied to the person’s body;

(g)with reference to the criteria specified in section 232(1) —

(i)the reasons for authorising the use of bodily restraint on the person; and

(ii)if mechanical restraint is authorised — the reasons for authorising the use and application of the device specified under paragraph (f);

(h)if a mental health practitioner or the person in charge of a ward makes the order — with reference to the criteria specified in section 232(2), the reasons for the urgency;

(i)particulars of any observations made about the person —

(i)if the order is confirming an oral authorisation — when the person was restrained under the oral authorisation; or

(ii)otherwise — when the person is restrained under the order;

(j)particulars of any directions given by a medical practitioner or mental health practitioner about the treatment and care to be provided to the person while restrained;

(k)the name, qualifications and signature of the person making the order.

(4)A mental health practitioner or the person in charge of a ward who makes a bodily restraint order in respect of a person must, as soon as practicable and, in any event, within sufficient time to enable the person to be examined as required by section 238(4) or 239(2)(a), inform a medical practitioner as to whether —

(a)the person is restrained under the bodily restraint order; or

(b)the person was restrained under the bodily restraint order but has since been released from bodily restraint.

(5)A mental health practitioner or the person in charge of a ward who informs a medical practitioner under subsection (4) must, as soon as practicable —

(a)record in the approved form —

(i)the medical practitioner’s name and qualifications; and

(ii)the date and time when the medical practitioner was informed;

and

(b)file the record and give a copy to the person.

(6)The person who makes a bodily restraint order in respect of a person must, as soon as practicable after the person is restrained under the order, file it and give a copy to the person.

232.Criteria for authorising bodily restraint

(1)A person cannot give an oral authorisation or make a bodily restraint order in respect of a person unless satisfied of these things —

(a)the person needs to be restrained to —

(i)provide the person with treatment; or

(ii)prevent the person from physically injuring himself or herself or another person; or

(iii)prevent the person from persistently causing serious damage to property;

and

(b)there is no less restrictive way of providing the treatment or preventing the injury or damage; and

(c)the use of bodily restraint on the person is unlikely to pose a significant risk to the person’s physical health.

(2)A mental health practitioner or the person in charge of a ward cannot give an oral authorisation or make a bodily restraint order in respect of a person unless also satisfied that —

(a)the person needs to be restrained urgently; and

(b)a medical practitioner is not reasonably available to give an oral authorisation or make a bodily restraint order in respect of the person.

233.Treating psychiatrist (if any) must be informed

(1)This section applies if —

(a)a person restrained under an oral authorisation or a bodily restraint order has a treating psychiatrist; and

(b)the treating psychiatrist did not give the oral authorisation or make the bodily restraint order; and

(c)the medical practitioner informed of the restraint under section 230(5) or 231(4) is not the treating psychiatrist.

(2)The person who gave the oral authorisation or made the bodily restraint order must, as soon as practicable and, in any event, within 30 minutes after the time when the person is restrained under the authorisation or order, inform the treating psychiatrist as to whether —

(a)the person is restrained under the authorisation or order; or

(b)the person was restrained under the authorisation or order but has since been released from bodily restraint.

(3)A person who informs the treating psychiatrist under subsection (2) must, as soon as practicable —

(a)record in the approved form —

(i)the treating psychiatrist’s name and qualifications; and

(ii)the date and time when the treating psychiatrist was informed;

and

(b)file the record and give a copy to the person.

234.Varying bodily restraint order

(1)A medical practitioner may make an order extending a bodily restraint order in force in respect of a person from the end of the period of restraint under the bodily restraint order for the further period (not exceeding 30 minutes) specified in the order.

(2)A medical practitioner cannot extend a bodily restraint order under subsection (1) unless, immediately before doing so, the medical practitioner examines the person in accordance with section 238(4).

(3)A medical practitioner or mental health practitioner may make an order varying a bodily restraint order in force in respect of a person by —

(a)shortening the bodily restraint order by the period specified in the order; or

(b)varying the device that is authorised for use to restrict the person’s movement or the way in which the device is authorised to be applied to the person’s body.

(4)An order made under subsection (1) or (3) must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the variation of the bodily restraint order;

(c)the reasons for the variation;

(d)the name, qualifications and signature of the practitioner making it.

(5)A person who makes an order under subsection (1) or (3) must, as soon as practicable, file it and give a copy to the person.

235.Revoking bodily restraint order

(1)A medical practitioner or mental health practitioner or the person in charge of a ward at an authorised hospital may make an order revoking a bodily restraint order in force in respect of a person.

(2)The order must be in the approved form and must include the following —

(a)the date and time when the bodily restraint order is revoked;

(b)the name, qualifications and signature of the practitioner making it.

(3)The person who makes the order must, as soon as practicable, file it and give a copy to the person.

236.Release of person on revocation or expiry of bodily restraint order

A medical practitioner or mental health practitioner must, as soon as practicable after the time when a person cannot continue to be restrained under a bodily restraint order —

(a)inform the person of that fact; and

(b)ensure that the person is released from bodily restraint.

237.Record of bodily restraint order expiring

A medical practitioner or mental health practitioner must, as soon as practicable after a bodily restraint order expires, file a record in the approved form of the date and time of the expiry.

238.Requirements relating to bodily restraint

(1)This section applies while a person is restrained under an oral authorisation or a bodily restraint order.

(2)The person in charge of the ward where the person is restrained must ensure that the requirements specified in this section, and any other requirements prescribed by the regulations for this section, are complied with.

(3)A mental health practitioner or a nurse must be in physical attendance on the person at all times and, as soon as practicable, must file a record in the approved form of any observations he or she makes about the person and give a copy to the person.

(4)A medical practitioner must examine the person at least every 30 minutes and, as soon as practicable  —

(a)record in the approved form these things —

(i)the medical practitioner’s name and qualifications;

(ii)the date and time of the examination;

(iii)the results of the examination, including whether or not the medical practitioner considers that, having regard to the criteria specified in section 232(1), the person should continue to be restrained;

and

(b)file the record and give a copy to the person.

(5)If the person remains restrained for more than 6 hours, a psychiatrist must review the use of bodily restraint on the person and, as soon as practicable —

(a)record in the approved form —

(i)the psychiatrist’s name and qualifications; and

(ii)the date, time and results of the review;

and

(b)file the record and give a copy to the person.

(6)The person must be provided with these things —

(a)the bedding and clothing appropriate in the circumstances;

(b)sufficient food and drink;

(c)access to toilet facilities;

(d)any other care appropriate to the person’s needs.

239.Examination of person when released

(1)This section applies whenever a person is released from bodily restraint under an oral authorisation or a bodily restraint order.

(2)The person in charge of the ward where the person was restrained must ensure —

(a)that the person is examined by a medical practitioner as soon as practicable and, in any event, within 6 hours after the time when the person is released from the bodily restraint; or

(b)if the person is to be released or discharged by, or against medical advice wants to leave, the authorised hospital where the person was restrained before being examined under paragraph (a) — that the person is offered an examination by a medical practitioner to be conducted before the person is released, discharged or leaves.

(3)A medical practitioner who examines a person for the purposes of subsection (2) must, as soon as practicable —

(a)record in the approved form these things —

(i)the medical practitioner’s name and qualifications;

(ii)the date and time of the examination;

(iii)the results of the examination, including any complication of or deterioration in the person’s mental or physical condition that is a result of, or may be the result of, the person being restrained;

and

(b)file the record and give a copy to the person.

240.Report to Chief Psychiatrist and Mentally Impaired Accused Review Board

(1)This section applies whenever a person is released from restraint under an oral authorisation or a bodily restraint order.

(2)The treating psychiatrist or, if the person does not have a treating psychiatrist, the person in charge of the authorised hospital where the person was restrained must, as soon as practicable, give the documents specified in subsection (3) relating to the restraint to —

(a)the Chief Psychiatrist; and

(b)if the person is a mentally impaired accused — the Mentally Impaired Accused Review Board.

(3)For subsection (2), these documents are specified —

(a)a copy of the record of the oral authorisation (if any) made under section 230(4)(a);

(b)a copy of the bodily restraint order (if any) made under section 231(1);

(c)a copy of any order varying the bodily restraint order made under section 234(1) or (3);

(d)a copy of any order revoking the bodily restraint order made under section 235(1) or any record of the expiry of the bodily restraint order made under section 237;

(e)a copy of each of the records made under section 230(6)(a), 231(5)(a), 233(3)(a), 238(3), (4)(a) and (5)(a) and 239(3)(a).

(4)The treating psychiatrist or person in charge must, as soon as practicable, file a record of having complied with subsection (2).

Part 15 — Health care of people in hospitals

Division 1 — Examination to assess person’s physical condition

241.Physical examination on arrival at hospital

(1)This section applies when —

(a)a person is admitted —

(i)by a hospital as a voluntary inpatient; or

(ii)by a hospital as an involuntary patient whose detention at the hospital is authorised under an inpatient treatment order; or

(iii)by an authorised hospital as a mentally impaired accused required under the MIA Act to be detained at the authorised hospital;

or

(b)a person is received into an authorised hospital under section 52(1)(a) or 70(1)(a).

(2)The person in charge of the hospital must ensure that a medical practitioner physically attends on the person, for the purpose of examining the person to assess the person’s physical condition, as soon as practicable and, in any event, within 12 hours after the time when the person is admitted or received, and at reasonable intervals after that initial attendance, until the first of these things occurs —

(a)the person is examined by a medical practitioner;

(b)if the person is a voluntary inpatient —

(i)the person refuses to consent to being examined by a medical practitioner; or

(ii)if the person does not have the capacity to consent to being examined by a medical practitioner — the person who is authorised by law to consent to the provision of treatment to the person refuses to consent to the person being examined by a medical practitioner;

(c)the person is released or discharged by or otherwise leaves the hospital.

(3)For the purpose of assessing under this section the physical condition of a person referred to in subsection (1)(a)(ii) or (iii) or (b), these things may be done without consent —

(a)the person may be examined;

(b)samples of the person’s blood, saliva, tissue and excreta may be taken.

(4)A medical practitioner who examines a person for the purpose of assessing under this section the person’s physical condition must, as soon as practicable, file a record of these things —

(a)the practitioner’s name and qualifications;

(b)the date and time when the examination was conducted;

(c)the results of the examination.

Division 2 — Urgent non‑psychiatric treatment for involuntary inpatients and mentally impaired accused

242.Provision of urgent non‑psychiatric treatment: report to Chief Psychiatrist

(1)This section applies if urgent non‑psychiatric treatment is provided to a patient who is —

(a)an involuntary patient who is under an inpatient treatment order authorising the patient’s detention at an authorised hospital; or

(b)a mentally impaired accused required under the MIA Act to be detained at an authorised hospital.

(2)In this section —

urgent non‑psychiatric treatment means urgent treatment as defined in the GAA Act section 110ZH.

(3)The person in charge of the authorised hospital must, as soon as practicable, report the provision of the urgent non‑psychiatric treatment to —

(a)the Chief Psychiatrist; and

(b)if the patient is a mentally impaired accused — the Mentally Impaired Accused Review Board.

(4)The report must be in the approved form and must include these things about the urgent non‑psychiatric treatment —

(a)the name of the patient provided with the treatment;

(b)the name and qualifications of the practitioner who provided the treatment;

(c)the names of any other people involved in providing the treatment;

(d)the date, time and place the treatment was provided;

(e)particulars of the circumstances in which the treatment was provided;

(f)particulars of the treatment provided.

(5)The provision of urgent non‑psychiatric treatment is an event to which Part 9 applies and the person in charge of the authorised hospital is the person responsible under that Part for notification of that event.

Note for this section:

The GAA Act section 110ZI or 110ZIA may apply in relation to the provision of urgent non‑psychiatric treatment to a patient referred to in section 242.

Part 16 — Protection of patients’ rights

Division 1 — Patients’ rights generally

Subdivision 1 — Explanation of rights

243.Application of this Subdivision

This Subdivision applies when —

(a)a patient is being admitted —

(i)by a hospital as a voluntary inpatient; or

(ii)by a hospital as an involuntary patient whose detention at the hospital is authorised under an inpatient treatment order; or

(iii)by an authorised hospital as a mentally impaired accused required under the MIA Act to be detained at the authorised hospital;

or

(b)an inpatient treatment order is made in respect of a patient; or

(c)a patient who is under an inpatient treatment order is granted leave of absence from a hospital under section 105(1); or

(d)a community treatment order is made in respect of a patient; or

(e)a person is referred under section 26(2) or 36(2) for an examination to be conducted by a psychiatrist at an authorised hospital; or

(f)a person is referred under section 26(3)(a) for an examination to be conducted by a psychiatrist at a place that is not an authorised hospital.

244.Rights to be explained to person

The person responsible under section 246 must ensure that the person is provided with an explanation, as described in the regulations, of the person’s rights under this Act.

Note for this section:

Any explanation provided under section 244 must be provided in accordance with section 9(2).

245.Person’s rights to be explained to another person

(1)The person responsible under section 246 must ensure that a carer, close family member or other personal support person of the person is provided with an explanation, as described in the regulations, of the person’s rights under this Act.

(2)This section applies despite any requirement under section 286(2) or 288(2) relating to the person’s consent or refusal to consent.

Note for this section:

Any explanation provided under section 245(1) must be provided in accordance with section 9(2).

246.Person responsible for ensuring explanation is provided

For sections 244 and 245, the person responsible is —

(a)when section 243(a) applies — the person in charge of the authorised hospital; or

(b)when section 243(b) applies — the psychiatrist who makes the inpatient treatment order; or

(c)when section 243(c) applies — the psychiatrist who grants the leave of absence; or

(d)when section 243(d) applies — the psychiatrist who makes the community treatment order; or

(e)when section 243(e) or (f) applies — the medical practitioner or authorised mental health practitioner who makes the referral.

Subdivision 2 — Access to records about patients and former patients

247.Term used: relevant document

In this Subdivision —

relevant document, in relation to a person, means the whole or any part of the person’s medical record or any other document about the person.

248.Right to access medical record and other documents

(1)Unless section 249(1)(a) or (b) or (3) applies, a person who is or was provided with treatment or care by a mental health service is entitled to inspect, and to be given a copy of, any relevant document relating to the person that is in the possession or control of —

(a)the person in charge of the mental health service; or

(b)a staff member of the mental health service.

(2)Subsection (1) does not affect any other right that the person has under this Act or another law to be given access to a document.

(3)The person in charge of the mental health service must ensure —

(a)that any request by the person to inspect, or to be given a copy of, a relevant document relating to the person is dealt with as soon as practicable after the request is received by the person who has possession or control of the relevant document; and

(b)if the request is refused — that, as soon as practicable after the refusal, a record in the approved form of the reasons for the refusal is filed and a copy given to the person.

249.Restrictions on access

(1)A person is not entitled to have access under section 248(1) to a relevant document relating to the person —

(a)if a psychiatrist reasonably believes that disclosure of the information in the document to the person —

(i)poses a significant risk to the health or safety of the person or to the safety of another person; or

(ii)poses a significant risk of serious harm to the person or to another person;

or

(b)if disclosure of the information in the document to the person would reveal —

(i)personal information about an individual who is not the person; or

(ii)information of a confidential nature that was obtained in confidence.

(2)Subsection (1)(b) does not apply if the personal information is about an individual who consents to the disclosure of the information.

(3)A person is not entitled to have access under section 248(1) to a relevant document relating to the person if the person —

(a)is or was a mentally impaired accused required under the MIA Act to be detained at an authorised hospital; and

(b)the relevant document came into existence under, or for the purposes of, the Prisons Act 1981.

250.Providing access to medical practitioner or legal practitioner

(1)This section applies if a person has been refused access under section 248(1) to a relevant document relating to the person for a reason referred to in section 249(1)(a).

(2)The person may nominate a medical practitioner or a legal practitioner or both to inspect, and to be given a copy of, the relevant document.

(3)A practitioner nominated under subsection (2) is entitled to inspect, and to be given a copy of, the relevant document as soon as practicable.

251.Disclosure by medical practitioner or legal practitioner

A person who inspects, or is given a copy of, a relevant document in the exercise or purported exercise of a right under section 250(3) must not disclose any information in the document to the person who has been refused access under section 248(1) to the document.

Penalty: a fine of $5 000.

Subdivision 3 — Duties of staff of mental health services toward patients

252.Term used: mental health service

In this Subdivision —

mental health service includes a private psychiatric hostel.

253.Duty not to ill‑treat or wilfully neglect patients

A staff member of a mental health service must not ill‑treat or wilfully neglect a person for whom the Chief Psychiatrist is responsible under section 515(1) who is being provided with treatment or care by the mental health service.

Penalty: a fine of $24 000 and imprisonment for 2 years.

254.Duty to report certain incidents

(1)In this section —

reportable incident, in relation to a person, means —

(a)unlawful sexual contact with the person by a staff member of a mental health service; or

(b)unlawful sexual contact with the person by a person who is not a staff member of a mental health service that occurs at a hospital; or

(c)the unreasonable use of force on the person by a staff member of a mental health service.

(2)A staff member of a mental health service who reasonably suspects that a reportable incident has occurred in relation to a person for whom the Chief Psychiatrist is responsible under section 515(1) who is being provided with treatment or care by the mental health service must report the suspicion to —

(a)the person in charge of the mental health service; or

(b)the Chief Psychiatrist.

Penalty: a fine of $6 000.

Division 2 — Additional rights of inpatients in hospitals

Subdivision 1 — Admission of voluntary inpatients by authorised hospitals

255.Admission by medical practitioner

A voluntary patient can only be admitted as an inpatient of an authorised hospital by a medical practitioner.

256.Confirmation of admission by psychiatrist

(1)The admission of a voluntary patient as an inpatient of an authorised hospital must be confirmed by a psychiatrist.

(2)Subsection (1) does not apply if the voluntary patient is admitted by a psychiatrist.

257.Reasons for refusing to admit or confirm admission

(1)A medical practitioner who refuses to admit, or a psychiatrist who refuses to confirm the admission of, a voluntary patient as an inpatient of an authorised hospital must —

(a)inform the voluntary patient of the reasons for refusing; and

(b)advise the voluntary patient that a complaint about the refusal can be made —

(i)under Part 19 to either the person in charge of the authorised hospital or the Director of the Complaints Office; or

(ii)to the Chief Psychiatrist;

and

(c)if that information or advice is provided orally — advise the voluntary patient that the medical practitioner or psychiatrist may be requested to confirm it in writing.

(2)The medical practitioner or psychiatrist must, as soon as practicable, comply with a request to confirm in writing information or advice provided orally under subsection (1).

Note for this section:

Any information or advice provided under section 257(1) or (2) must be provided in accordance with section 9(2).

Subdivision 2 — Rights of inpatients generally

258.Application of this Subdivision

This Subdivision applies in relation to any of these patients —

(a)a voluntary inpatient who is admitted by an authorised hospital;

(b)an involuntary inpatient whose detention at a hospital is authorised under an inpatient treatment order;

(c)a mentally impaired accused required under the MIA Act to be detained at an authorised hospital.

259.Personal possessions

(1)This section applies only in relation to a patient who is admitted by an authorised hospital.

(2)In this section —

personal possessions, of a patient, means any of these items —

(a)articles of clothing, jewellery or footwear belonging to the patient;

(b)articles for personal use by the patient;

(c)aids for daily living, or medical prostheses, that are usually used by the patient as means of assistance or to maintain the patient’s dignity.

(3)The person in charge of an authorised hospital must ensure that each patient —

(a)is provided with a secure facility in which to store the patient’s personal possessions; and

(b)is allowed to use those possessions.

(4)Subsection (3) does not apply in relation to an item (including an aid for daily living or medical prosthesis) that, in the opinion of the person in charge, may pose a risk of harm to the patient or to another person.

(5)Subsection (3) does not apply in relation to an item that is not an aid for daily living or medical prosthesis that, in the opinion of the person in charge, is not an appropriate item to store at the authorised hospital.

(6)Any personal possessions of a patient left at an authorised hospital for more than 6 months after the day on which the patient is discharged by the hospital may be sold or otherwise disposed of by the person in charge of the hospital, but only  —

(a)after the person in charge gives at least one month’s notice of the proposed disposal to a carer, close family member or other personal support person of the person; and

(b)if no carer, close family member or other personal support person of the person claims those possessions within that 6‑month period.

260.Interview with psychiatrist

(1)A patient may, at any time while admitted by a hospital, request an interview with a psychiatrist.

(2)The person in charge of the hospital must ensure —

(a)that, unless subsection (4) applies, the request is complied with within a reasonable time after the request is made; and

(b)that a record of the request having been made is filed.

(3)The psychiatrist who interviews a patient in compliance with a request made under subsection (1) must file a record of —

(a)the date and time when the interview occurred; and

(b)the matters discussed during the interview.

(4)A psychiatrist may refuse a patient’s request for an interview under subsection (1) if —

(a)the patient has a history of making repeated requests under subsection (1); and

(b)the psychiatrist is satisfied that the patient is acting unreasonably in making the request.

(5)A psychiatrist who refuses a patient’s request under subsection (4) must file a record of the reasons for refusing and give a copy to the patient.

261.Freedom of lawful communication

(1)This section applies subject to section 262.

(2)A patient has the right of freedom of lawful communication.

(3)A patient’s freedom of lawful communication includes the freedom to do any of these things in reasonable privacy —

(a)see and speak with other people in the hospital to the extent that is reasonable;

(b)have uncensored communications with people, including by receiving visits, sending and receiving telephone calls, and sending and receiving mail and electronic communications;

(c)receive visits from, and otherwise have contact with, the patient’s legal practitioner at all reasonable times;

(d)receive visits from, and otherwise have contact with, a mental health advocate at any time;

(e)receive visits from, and be otherwise contacted by, other people at all reasonable times.

262.Restrictions on freedom of communication

(1)A psychiatrist may make an order —

(a)prohibiting a patient from exercising a right under section 261; or

(b)limiting the extent to which a patient can exercise a right under section 261.

(2)A psychiatrist cannot make an order under subsection (1) prohibiting, or limiting the extent of, a patient’s right under section 261(3)(a), (b) or (e) unless satisfied that making the order is in the best interests of the patient.

(3)A psychiatrist cannot make an order under subsection (1) prohibiting, or limiting the extent of, a patient’s right under section 261(3)(c) or (d) to receive visits from the person’s legal practitioner or a mental health advocate unless satisfied that —

(a)there is a serious risk to the safety of the legal practitioner or mental health advocate if the order is not made; and

(b)there are no other steps that could reasonably be taken to reduce that risk.

(4)A psychiatrist cannot make an order under subsection (1) prohibiting, or limiting the extent of, a patient’s right under section 261(3)(c) or (d) to be otherwise contacted by the person’s legal practitioner or a mental health advocate.

(5)The order must be in the approved form and must include the following —

(a)the date and time when it is made;

(b)the reasons for making it;

(c)the name, qualifications and signature of the psychiatrist.

(6)A psychiatrist who makes an order under subsection (1) must, as soon as practicable —

(a)file it and give a copy to the patient; and

(b)give a copy to any carer, close family member or other personal support person of the patient.

(7)A psychiatrist must, before the end of each 24‑hour period that an order made under subsection (1) is in force, review the order and confirm, amend or revoke it.

(8)A psychiatrist who confirms, amends or revokes an order made under subsection (1) must —

(a)file a record of the confirmation, amendment or revocation and the reasons for it; and

(b)advise the patient of the confirmation, amendment or revocation and those reasons.

(9)An order made under subsection (1) ceases to be in force if it is not reviewed before the end of any 24‑hour period referred to in subsection (7).

(10)A psychiatrist who makes an order under subsection (1) in respect of a patient must, within 24 hours after the time when the order is made, advise the Chief Mental Health Advocate that the order has been made.

Note for this section:

For the purpose of deciding under section 262(2) what is or is not in the best interests of a patient, Part 2 Division 3 applies.

Division 3 — Nominated persons

Subdivision 1 — Purpose and effect of nomination

263.Role of nominated person

The role of a nominated person is to assist the person who made the nomination by ensuring that, in performing a function under this Act in relation to that person, a person or body —

(a)observes that person’s rights under this Act; and

(b)takes that person’s interests and wishes into account.

264.Effect of nomination

(1)This section does not limit the role of a nominated person under section 263.

(2)A patient is entitled to have uncensored communications with the patient’s nominated person, including by any of these means —

(a)receiving visits;

(b)making and receiving telephone calls;

(c)sending and receiving electronic communications;

(d)sending and receiving mail.

(3)A right of a patient under subsection (2) is subject to any order in force under section 262(1) prohibiting the patient from exercising, or limiting the extent to which the patient can exercise, a right in respect of the patient’s nominated person.

(4)To the extent provided by section 266, a patient’s nominated person is entitled to be provided with information, and to be involved in matters, relating to the patient’s treatment and care.

(5)A patient’s nominated person may exercise, on behalf of the patient, the rights conferred under this Act on the patient.

(6)To avoid doubt, a nomination does not authorise a patient’s nominated person to apply on the patient’s behalf for admission or discharge by a mental health service, or make a treatment decision about the provision of treatment to the patient, unless the nominated person is authorised to do so in another capacity.

Note for this section:

For section 264(6), a patient’s nominated person could for example also be the patient’s enduring guardian or guardian or the person responsible for the patient under the GAA Act section 110ZD.

Subdivision 2 — Right to information, and to be involved in matters, relating to patient’s treatment and care

265.Application of this Subdivision

This Subdivision does not apply in relation to the notification of an event to which Part 9 applies.

266.Rights of nominated person

(1)A patient’s nominated person is entitled —

(a)subject to section 269, to be provided with information relating to the patient’s treatment and care, including information about these matters —

(i)the mental illness for which the patient is being provided with treatment or care;

(ii)if the patient is an involuntary patient — the grounds on which, and the provision of this Act under which, the involuntary treatment order was made;

(iii)the treatment and care proposed to be provided to the patient and any other options for the patient’s treatment and care that are reasonably available;

(iv)the treatment provided to the patient and the patient’s response to that treatment;

(v)the seclusion of, or use of bodily restraint on, the patient;

(vi)the services available to meet the patient’s needs;

and

(b)subject to section 269, to be involved in matters relating to the patient’s treatment and care, including these matters —

(i)the consideration of the options that are reasonably available for the patient’s treatment and care;

(ii)the provision of support to the patient;

(iii)the preparation and review of any treatment, support and discharge plan for the patient;

and

(c)to be provided with information about the patient’s rights under this Act and how those rights can be accessed and exercised; and

(d)to be provided with information about the rights of the nominated person under this Act and how those rights can be accessed and exercised.

(2)A patient’s nominated person may indicate the extent to which the nominated person wants to be provided with the information referred to in subsection (1)(a) or (c) or to be involved in the matters referred to in subsection (1)(b).

(3)To avoid doubt, a patient’s nominated person is not authorised to apply on the patient’s behalf for admission or discharge by a mental health service, or make a treatment decision about the provision of treatment to the patient, unless the nominated person is authorised to do so in another capacity.

Notes for this section:

1.Any information provided under section 266(1)(a), (c) or (d) must be provided in accordance with section 9(2).

2.For section 266(3), a patient’s nominated person could for example also be the patient’s enduring guardian or guardian or the person responsible for the patient under the GAA Act section 110ZD.

267.Responsibility of patient’s psychiatrist

A patient’s psychiatrist must ensure that the patient’s nominated person is provided with information referred to in section 266(1)(a) or (c), or involved in a matter referred to in section 266(1)(b), if no other provision is made under this Act about who must ensure that the nominated person is provided with that information or involved in that matter.

268.Contacting nominated person

(1)This section applies in relation to a requirement under this Act to provide a patient’s nominated person with information referred to in section 266(1)(a) or (c) or involve a patient’s nominated person in a matter referred to in section 266(1)(b).

(2)Without limiting a requirement referred to in subsection (1), the requirement is taken to have been complied with if the person responsible for ensuring the requirement is complied with ensures that reasonable efforts to provide the nominated person with the information or involve the nominated person in the matter continue to be made until the first of these things occurs —

(a)the nominated person is provided with the information or involved in the matter;

(b)it is reasonable for the person responsible to conclude that the nominated person cannot be provided with the information or involved in the matter.

(3)The person responsible must ensure that one of the following is filed —

(a)a record of when and how the nominated person was provided with the information or involved in the matter;

(b)if the nominated person could not be provided with the information or involved in the matter — a record of the efforts made to do so.

269.Provision of information or involvement not in patient’s best interests

(1)A patient’s nominated person is not entitled to be provided with particular information or involved in a particular matter if the patient’s psychiatrist reasonably believes that it is not in the best interests of the patient for the nominated person to be provided with that information or involved in that matter.

(2)A patient’s psychiatrist who decides under subsection (1) that the patient’s nominated person is not entitled to be provided with particular information or involved in a particular matter must, as soon as practicable —

(a)file a record of the decision and the reasons for it; and

(b)give a copy to each of —

(i)the patient; and

(ii)the Chief Mental Health Advocate.

Note for this section:

For the purpose of deciding under section 269(1) what is or is not in the best interests of a patient, Part 2 Division 3 applies.

270.Advising nominated person of decision

(1)A patient’s psychiatrist who decides under section 269(1) that the patient’s nominated person is not entitled to be provided with information or involved in a matter must, if the nominated person requests to be provided with the information or involved in the matter —

(a)advise the nominated person of the decision and the reasons for it; and

(b)file a record of the advice and give a copy to the patient.

(2)A patient’s nominated person to whom advice is provided orally under subsection (1)(a) may request the patient’s psychiatrist to confirm the advice in writing.

(3)The patient’s psychiatrist must —

(a)comply with the request; and

(b)file a copy of the confirmation and give another copy to the patient.

Note for this section:

Any advice provided under section 270(1)(a) or (3)(a) must be provided in accordance with section 9(2).

271.Revocation of decision

(1)A patient’s psychiatrist may revoke a decision made under section 269(1) that the patient’s nominated person is not entitled to be provided with information or involved in a matter if satisfied that the reasons for making the decision no longer apply.

(2)The patient’s psychiatrist must, as soon as practicable, file a record of the decision and the reasons for it and give a copy to the patient.

(3)If the nominated person previously requested to be provided with the information or involved in the matter, the patient’s psychiatrist must ensure that, as soon as practicable —

(a)the nominated person is provided with the information or involved in the matter; and

(b)a record of when and how the nominated person was provided with the information or involved in the matter is filed and a copy given to the patient.

(4)However, there is no requirement to involve the nominated person in a matter if the time for doing so has passed.

272.Rights in another capacity not affected

This Subdivision does not affect any right that a patient’s nominated person has (whether under this Act or otherwise) to be provided with information or involved in a matter in another capacity.

Note for this section:

A child’s nominated person could for example also be the child’s parent or guardian.

Subdivision 3 — Making and ending nomination

273.Who can make nomination

(1)A person, including a child, may nominate another person to be the person’s nominated person.

(2)A person cannot make a nomination under subsection (1) unless the person understands the effect of making the nomination.

274.Who can be nominated

Only an adult is eligible to be nominated under section 273(1).

275.Formal requirements

(1)A nomination is not valid unless —

(a)it is in the approved form; and

(b)it states the name and contact details of the person being nominated; and

(c)it states the date on which it takes effect; and

(d)it is signed by the person making the nomination or by another person in the presence of, and at the direction of, the person making the nomination; and

(e)the signature referred to in paragraph (d) is witnessed by a person referred to in subsection (2); and

(f)it is signed by the person being nominated to indicate that the person accepts the nomination; and

(g)the signature referred to in paragraph (f) is witnessed by a person referred to in subsection (2).

(2)For the purposes of subsection (1)(e) and (g), the witness must be authorised by law to take declarations but cannot be a person referred to in subsection (1)(d) or (f).

276.Only one nominated person

A person cannot have more than one nominated person at any time.

277.Revocation of nomination

(1)A nomination may be revoked by the person who made it at any time by any means whatsoever.

(2)A nomination is revoked if the person who made it makes another nomination.

278.Resignation of nominated person

(1)A nominated person may resign the nomination by writing signed and given to the person who made the nomination.

(2)The resignation takes effect on the later of the following —

(a)receipt by the person who made the nomination;

(b)the day specified in the resignation.

279.Notification of revocation or resignation

(1)Subsection (2) applies if a patient’s nominated person —

(a)resigns the nomination; or

(b)becomes aware that the patient has revoked the nomination.

(2)The nominated person must take all reasonable steps to notify any medical practitioner, mental health practitioner or mental health service that the nominated person is aware is providing treatment or care to the patient that the nomination no longer has effect.

(3)Subsection (4) applies if a medical practitioner, mental health practitioner or mental health service who is providing treatment or care to a patient becomes aware that the patient has revoked a nomination.

(4)The practitioner or the person in charge of the mental health service must ensure that all reasonable steps are taken to notify the nominated person of the revocation.

Note for this Division:

Part 21 Division 10 confers jurisdiction on the Mental Health Tribunal to hear and determine applications relating to nominated persons.

Part 17 — Recognition of rights of carers and families

Division 1 — Role of carers and families

280.Carers

(1)For this Act, a carer of a person is a person who is that person’s carer under the Carers Recognition Act 2004 section 5.

(2)It is recognised that very often, although not invariably, a person’s carer is a family member.

(3)It is also recognised that, even though a family member is a person’s carer —

(a)the person may not identify the family member as his or her carer; or

(b)the family member may not identify himself or herself as the person’s carer.

281.Close family members

(1)For this Act, a close family member of a person is a family member referred to in subsection (2) —

(a)who is not also the person’s carer or the person’s nominated person; but

(b)who provides ongoing care or assistance to the person.

(2)For subsection (1), a family member of a person is any member of the person’s family, including —

(a)any of these people, whether the relationship is established by or traced through consanguinity, marriage, a de facto relationship, a written law or a natural relationship —

(i)a spouse or de facto partner;

(ii)a child;

(iii)a step child;

(iv)a parent;

(v)a step parent;

(vi)a foster parent;

(vii)a sibling;

(viii)a grandparent;

(ix)an aunt or uncle;

(x)a niece or nephew;

(xi)a cousin;

and

(b)if the person is of Aboriginal or Torres Strait Islander descent — any person regarded under the customary law, tradition or kinship of that person’s community as the equivalent of a person described in paragraph (a).

282.Acknowledgment of and respect for role of carers and close family members

The role of carers and close family members in the provision of treatment, care and support to a person who has a mental illness should be acknowledged and respected.

283.More than one carer or close family member

(1)Without limiting a requirement under this Act relating to any carer of a person, it is sufficient for compliance with the requirement if there is compliance in respect of at least one carer.

(2)Without limiting a requirement under this Act relating to any close family member of a person, it is sufficient for compliance with the requirement if there is compliance in respect of at least one close family member.

(3)This section does not apply in relation to a requirement under Part 9 Division 2 or section 446 or 447 in respect of a carer or close family member.

Note for this section:

Under Part 9 Division 2, it is sufficient if at least one personal support person is notified if a notifiable event occurs. Under sections 446 and 447, it is sufficient if at least one personal support person is notified of an application made to, or a hearing in a proceeding of, the Mental Health Tribunal. In both cases, that personal support person can (but need not) be a carer or close family member.

Division 2 — Information about and involvement in patient’s treatment and care

284.Application of this Division

This Division does not apply in relation to the notification of an event to which Part 9 applies.

285.Rights of carers and close family members

(1)Any carer or close family member of a patient is entitled —

(a)subject to this Division, to be provided with information relating to the patient’s treatment and care, including information about these matters —

(i)the mental illness for which the patient is being provided with treatment or care;

(ii)if the patient is an involuntary patient — the grounds on which, and the provision of this Act under which, the involuntary treatment order was made;

(iii)the treatment and care proposed to be provided to the patient and any other options for the patient’s treatment and care that are reasonably available;

(iv)the treatment provided to the patient and the patient’s response to that treatment;

(v)the seclusion of, or use of bodily restraint on, the patient;

(vi)the services available to meet the patient’s needs;

and

(b)subject to this Division, to be involved in matters relating to the patient’s treatment and care, including these matters —

(i)the consideration of the options that are reasonably available for the patient’s treatment and care; and

(ii)the provision of support to the patient; and

(iii)the preparation and review of any treatment, support and discharge plan for the patient;

and

(c)to be provided with information about the patient’s rights under this Act and how those rights can be accessed and exercised; and

(d)to be provided with information about the rights of the carer or close family member under this Act and how those rights can be accessed and exercised.

(2)A carer or close family member of a patient may indicate the extent to which the carer or close family member wants to be provided with the information referred to in subsection (1)(a), (c) or (d) or to be involved in the matters referred to in subsection (1)(b).

(3)To avoid doubt, a carer or close family member of a patient is not authorised to apply on the patient’s behalf for admission or discharge by a mental health service, or make a treatment decision about the provision of treatment to the patient, unless the carer or close family member is authorised to do so in another capacity.

Notes for this section:

1.Any information provided under section 285(1)(a), (c) or (d) must be provided in accordance with section 9(2).

2.For section 285(3), a carer of a patient could for example also be the patient’s enduring guardian or guardian or a close family member of a patient could for example also be the person responsible for the patient under the GAA Act section 110ZD.

286.Voluntary patient with capacity to consent

(1)This section applies in relation to a voluntary patient who has the capacity to consent to a carer or close family member of the patient being provided with the information referred to in section 285(1)(a), or being involved in the matters referred to in section 285(1)(b), relating to his or her treatment and care.

(2)The carer or close family member is entitled to be provided with that information, or to be involved in those matters, with the voluntary patient’s consent.

287.Voluntary patient with no capacity to consent

(1)This section applies in relation to a voluntary patient who does not have the capacity to consent to a carer or close family member of the patient being provided with the information referred to in section 285(1)(a), or being involved in the matters referred to in section 285(1)(b), relating to his or her treatment and care.

(2)The carer or close family member is entitled, subject to section 292, to be provided with that information, or to be involved in those matters.

288.Involuntary patient or mentally impaired accused with capacity to consent

(1)This section applies in relation to a patient —

(a)who is —

(i)an involuntary patient; or

(ii)a mentally impaired accused required under the MIA Act to be detained at an authorised hospital;

and

(b)who has the capacity to consent to a carer or close family member of the patient being provided with the information referred to in section 285(1)(a), or being involved in the matters referred to in section 285(1)(b), relating to his or her treatment and care.

(2)The carer or close family member is entitled to be provided with that information, or to be involved in those matters, unless —

(a)the patient has refused to consent to the carer or close family member being provided with that information or being involved in those matters; and

(b)the patient’s psychiatrist considers that the refusal is reasonable.

289.Involuntary patient or mentally impaired accused with no capacity to consent

(1)This section applies in relation to a patient —

(a)who is —

(i)an involuntary patient; or

(ii)a mentally impaired accused required under the MIA Act to be detained at an authorised hospital;

and

(b)who does not have the capacity to consent to a carer or close family member of the patient being provided with the information referred to in section 285(1)(a), or being involved in the matters referred to in section 285(1)(b), relating to his or her treatment and care.

(2)The carer or close family member is entitled, subject to section 292, to be provided with that information, or to be involved in those matters.

290.Responsibility of patient’s psychiatrist

A patient’s psychiatrist must ensure that any carer or close family member of the patient is provided with information referred to in section 285(1)(a), (c) or (d), or involved in a matter referred to in section 285(1)(b), if no other provision is made under this Act about who must ensure that any carer or close family member is provided with that information or involved in that matter.

291.Contacting carer or close family member

(1)This section applies in relation to each of these requirements —

(a)a requirement under this Act to provide any carer of a patient with information referred to in section 285(1)(a), (c) or (d) or involve any carer of a patient in a matter referred to in section 285(1)(b);

(b)a requirement under this Act to provide any close family member of a patient with information referred to in section 285(1)(a), (c) or (d) or involve any close family member of a patient in a matter referred to in section 285(1)(b).

(2)Without limiting a requirement referred to in subsection (1)(a) or (b), the requirement is taken to have been complied with if the person responsible for ensuring that the requirement is complied with ensures that reasonable efforts to provide any carer or any close family member with the information or involve any carer or any close family member in the matter continue to be made until the first of these things occurs —

(a)at least one carer or one close family member is provided with the information or involved in the matter;

(b)it is reasonable for the person responsible to conclude that no carer or no close family member can be provided with the information or involved in the matter.

(3)The person responsible must ensure that one of the following is filed —

(a)a record of when and how any carer or any close family member was provided with the information or involved in the matter;

(b)if no carer or no close family member could be provided with the information or involved in the matter — a record of the efforts made to do so.

(4)Sections 296 and 297 do not limit —

(a)the requirement under subsection (1)(a) to make reasonable efforts to provide a carer of a patient with information or involve a carer of a patient in a matter; or

(b)the requirement under subsection (1)(b) to make reasonable efforts to provide a close family member of a patient with information or involve a close family member of a patient in a matter.

292.Provision of information or involvement not in patient’s best interests

(1)A carer or close family member of a patient is not entitled under section 287(2) or 289(2) to be provided with particular information or involved in a particular matter if the patient’s psychiatrist reasonably believes that it is not in the best interests of the patient for the carer or close family member to be provided with that information or involved in that matter.

(2)A patient’s psychiatrist who decides under subsection (1) that a carer or close family member of the patient is not entitled to be provided with particular information or involved in a particular matter must —

(a)file a record of the decision and the reasons for it; and

(b)give a copy to each of —

(i)the patient; and

(ii)the Chief Mental Health Advocate.

Note for this section:

For the purpose of deciding under section 292(1) what is or is not in the best interests of a patient, Part 2 Division 3 applies.

293.Advising carer or close family member of decision

(1)A patient’s psychiatrist who decides under section 292(1) that a carer or close family member of the patient is not entitled to be provided with particular information or involved in a particular matter must, if the carer or close family member requests to be provided with the information or involved in the matter —

(a)advise the carer or close family member of the decision and the reasons for it; and

(b)file a record of the advice and give a copy to the patient.

(2)A carer or close family member of a patient to whom advice is provided orally under subsection (1)(a) may request the patient’s psychiatrist to confirm the advice in writing.

(3)The patient’s psychiatrist must —

(a)comply with the request; and

(b)file a copy of the confirmation and give another copy to the patient.

Note for this section:

Any information or advice provided under section 293(1)(a) or (3)(a) must be provided in accordance with section 9(2).

294.Revocation of decision

(1)A patient’s psychiatrist may revoke a decision under section 292(1) that a carer or close family member of the patient is not entitled to be provided with particular information or involved in a particular matter if satisfied that the reasons for making the decision no longer apply.

(2)The patient’s psychiatrist must, as soon as practicable, file a record of the decision and the reasons for it and give a copy to the patient.

(3)If the carer or close family member previously requested to be provided with the information or involved in the matter, the patient’s psychiatrist must ensure that, as soon as practicable —