Minister: Minister for Health and Minister for Ambulance Services
Agency: Queensland Health


Mental Health Act 2016


Queensland Crest
Mental Health Act 2016

An Act to provide for the treatment and care of people who have mental illnesses and for other purposes

Long title amd 2016 No. 5s 866

Chapter 1 Preliminary

Part 1 Introduction

1Short title

This Act may be cited as the Mental Health Act 2016 .

2Commencement

This Act commences on a day to be fixed by proclamation.

3Main objects of Act

(1)The main objects of this Act are—
(a)to improve and maintain the health and wellbeing of persons who have a mental illness who do not have the capacity to consent to be treated; and
(b)to enable persons to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial; and
(c)to protect the community if persons diverted from the criminal justice system may be at risk of harming others.
(2)The main objects are to be achieved in a way that—
(a)safeguards the rights of persons; and
(b)is the least restrictive of the rights and liberties of a person who has a mental illness; and
(c)promotes the recovery of a person who has a mental illness, and the person’s ability to live in the community, without the need for involuntary treatment and care.
(3)For subsection (2)(b), a way is the least restrictive of the rights and liberties of a person who has a mental illness if the way adversely affects the person’s rights and liberties only to the extent required to protect the person’s safety and welfare or the safety of others.

4Act binds all persons

(1)This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.
(2)Nothing in this Act makes the State liable to be prosecuted for an offence.

Part 2 Principles for administration of Act

5Principles for persons with mental illness

The following principles apply to the administration of this Act in relation to a person who has, or may have, a mental illness—
(a)Same human rights
the right of all persons to the same basic human rights must be recognised and taken into account
a person’s right to respect for his or her human worth and dignity as an individual must be recognised and taken into account
(b)Matters to be considered in making decisions
to the greatest extent practicable, a person is to be encouraged to take part in making decisions affecting the person’s life, especially decisions about treatment and care
to the greatest extent practicable, in making a decision about a person, the person’s views, wishes and preferences are to be taken into account
a person is presumed to have capacity to make decisions about the person’s treatment and care and other matters under this Act
(c)Support persons
to the greatest extent practicable, family, carers and other support persons of a person who has a mental illness are to be involved in decisions about the person’s treatment and care, subject to the person’s right to privacy
(d)Provision of support and information
to the greatest extent practicable, a person is to be provided with necessary support and information to enable the person to exercise rights under this Act, including, for example, providing access to other persons to help the person express the person’s views, wishes and preferences
(e)Achievement of maximum potential and self-reliance
to the greatest extent practicable, a person is to be helped to achieve maximum physical, social, psychological and emotional potential, quality of life and self-reliance
(f)Acknowledgement of needs
a person’s age-related, gender-related, religious, communication and other special needs must be recognised and taken into account
a person’s hearing, visual or speech impairment must be recognised and taken into account
(g)Aboriginal people and Torres Strait Islanders
the unique cultural, communication and other needs of Aboriginal people and Torres Strait Islanders must be recognised and taken into account
Aboriginal people and Torres Strait Islanders should be provided with treatment, care and support in a way that recognises and is consistent with Aboriginal tradition or Island custom, mental health and social and emotional wellbeing, and is culturally appropriate and respectful
to the extent practicable and appropriate in the circumstances, communication with Aboriginal people and Torres Strait Islanders is to be assisted by an interpreter
(h)Persons from culturally and linguistically diverse backgrounds
the unique cultural, communication and other needs of persons from culturally and linguistically diverse backgrounds must be recognised and taken into account
services provided to persons from culturally and linguistically diverse backgrounds must have regard to the person’s cultural, religious and spiritual beliefs and practices
to the extent practicable and appropriate in the circumstances, communication with persons from culturally and linguistically diverse backgrounds is to be assisted by an interpreter
(i)Minors
to the greatest extent practicable, a minor receiving treatment and care must have the minor’s best interests recognised and promoted, including, for example, by receiving treatment and care separately from adults if practicable and by having the minor’s specific needs, wellbeing and safety recognised and protected
(j)Maintenance of supportive relationships and community participation
to the greatest extent practicable, the importance of a person’s continued participation in community life and maintaining existing supportive relationships are to be taken into account, including, for example, by providing treatment in the community in which the person lives
(k)Importance of recovery-oriented services and reduction of stigma
the importance of recovery-oriented services and the reduction of stigma associated with mental illness must be recognised and taken into account
(l)Provision of treatment and care
treatment and care provided under this Act must be provided to a person who has a mental illness only if it is appropriate for promoting and maintaining the person’s health and wellbeing
(m)Privacy and confidentiality
a person’s right to privacy and confidentiality of information about the person must be recognised and taken into account.

6Principles for victims and others

(1)The principles mentioned in subsection (2) apply to the administration of this Act in relation to each of the following (each a victim)—
(a)a victim of an unlawful act;
(b)a close relative of a victim of an unlawful act;
(c)another individual who has suffered harm because of an unlawful act committed against a person mentioned in paragraph (a).
(2)The principles are the following—
(a)the physical, psychological and emotional harm caused to the victim by the unlawful act must be recognised with compassion;
(b)the benefits of counselling, advice on the nature of proceedings under this Act and other support services to the recovery of the victim from the harm caused by the unlawful act must be recognised;
(c)the benefits to the victim of being advised in a timely way of proceedings under this Act against a person in relation to the unlawful act must be recognised;
(d)the benefits to the victim of the timely completion of proceedings against a person in relation to the unlawful act must be recognised;
(e)the benefits to the victim of being advised in a timely way of a decision to allow a person to be treated in the community must be recognised;
(f)the benefits to the victim of being given the opportunity to express the victim’s views on the impact of the unlawful act to decision-making entities under this Act must be recognised.

7Regard to principles

In performing a function or exercising a power under this Act, a person is to have regard to the principles mentioned in sections 5 and 6.

8Application to person with intellectual disability

To the extent this Act applies to a person who has an intellectual disability—
(a)sections 3 and 5 apply in relation to the person as if a reference in the sections to a person who has a mental illness were a reference to a person who has an intellectual disability; and
(b)a reference in the Act to treatment and care of a person means a reference to care of the person; and
(c)a reference in the Act to recovery of a person means a reference to the rehabilitation, and development of living skills, of the person.

Part 3 Interpretation

9Definitions

The dictionary in schedule 3 defines particular words used in this Act.

10Meaning of mental illness

(1)Mental illness is a condition characterised by a clinically significant disturbance of thought, mood, perception or memory.
(2)However, a person must not be considered to have a mental illness merely because—
(a)the person holds or refuses to hold a particular religious, cultural, philosophical or political belief or opinion; or
(b)the person is a member of a particular racial group; or
(c)the person has a particular economic or social status; or
(d)the person has a particular sexual preference or sexual orientation; or
(e)the person engages in sexual promiscuity; or
(f)the person engages in immoral or indecent conduct; or
(g)the person takes drugs or alcohol; or
(h)the person has an intellectual disability; or
(i)the person engages in antisocial behaviour or illegal behaviour; or
(j)the person is or has been involved in family conflict; or
(k)the person has previously been treated for a mental illness or been subject to involuntary assessment or treatment.
(3)Subsection (2) does not prevent a person mentioned in the subsection having a mental illness.

Examples for subsection (3)—

1A person may have a mental illness caused by taking drugs or alcohol.
2A person may have a mental illness as well as an intellectual disability.
(4)A decision that a person has a mental illness must be made in accordance with internationally accepted medical standards.

11Meaning of involuntary patient

An involuntary patient means—
(a)a person subject to any of the following—
(i)an examination authority;
(ii)a recommendation for assessment;
(iii)a treatment authority;
(iv)a forensic order;
(v)a treatment support order;
(vi)a judicial order; or
(b)a person detained in an authorised mental health service or public sector health service facility under section 36 ; or
(c)a person from another State detained in an authorised mental health service under section 368 (4).

12Meaning of treatment criteria

(1)The treatment criteria for a person are all of the following—
(a)the person has a mental illness;
(b)the person does not have capacity to consent to be treated for the illness;
(c)because of the person’s illness, the absence of involuntary treatment, or the absence of continued involuntary treatment, is likely to result in—
(i)imminent serious harm to the person or others; or
(ii)the person suffering serious mental or physical deterioration.
(2)For subsection (1)(b), the person’s own consent only is relevant.
(3)Subsection (2) applies despite the Guardianship and Administration Act 2000 , the Powers of Attorney Act 1998 or any other law.

13Meaning of less restrictive way

(1)For this Act, there is a less restrictive way for a person to receive treatment and care for the person’s mental illness if, instead of receiving involuntary treatment and care, the person is able to receive the treatment and care that is reasonably necessary for the person’s mental illness in 1 of the following ways—
(a)if the person is a minor—with the consent of the minor’s parent;
(b)if the person has made an advance health directive—under the advance health directive;
(c)if a personal guardian has been appointed for the person—with the consent of the personal guardian;
(d)if an attorney has been appointed by the person—with the consent of the attorney;
(e)otherwise—with the consent of the person’s statutory health attorney.

Examples of when there may not be a less restrictive way for a person to receive the treatment and care that is reasonably necessary for the person’s mental illness—

1An advance health directive does not cover the matters that are clinically relevant or appropriate for the person’s treatment and care.
2An advance health directive does not authorise the administration of the medications that are clinically necessary for the person’s treatment and care.
3An attorney does not consent to the administration of the medications that are clinically necessary for the person’s treatment and care.
(2)In deciding whether there is a less restrictive way for a person to receive the treatment and care that is reasonably necessary for the person’s mental illness, a person performing a function or exercising a power under this Act must—
(a)consider the ways mentioned in subsection (1) in the listed order set out in the subsection; and
(b)comply with the policy that must be made by the chief psychiatrist under section 305 (1)(a) about when it may not be appropriate for a person to receive treatment and care for the person’s mental illness under an advance health directive or with the consent of a personal guardian, attorney or statutory health attorney for the person.
(3)To remove any doubt, it is declared that this section does not limit the power of the public guardian to act as a statutory health attorney for a person under the Powers of Attorney Act 1998 .
(4)In this section—
statutory health attorney means the person’s statutory health attorney under the Powers of Attorney Act 1998 , section 63 (1) .

14Meaning of capacity to consent to be treated

(1)A person has capacity to consent to be treated if the person—
(a)is capable of understanding, in general terms—
(i)that the person has an illness, or symptoms of an illness, that affects the person’s mental health and wellbeing; and
(ii)the nature and purpose of the treatment for the illness; and
(iii)the benefits and risks of the treatment, and alternatives to the treatment; and
(iv)the consequences of not receiving the treatment; and
(b)is capable of making a decision about the treatment and communicating the decision in some way.
(2)A person may have capacity to consent to be treated even though the person decides not to receive treatment.
(3)A person may be supported by another person in understanding the matters mentioned in subsection (1)(a) and making a decision about the treatment.
(4)This section does not affect the common law in relation to—
(a)the capacity of a minor to consent to be treated; or
(b)a parent of a minor consenting to treatment of the minor.

15Responsibility for involuntary patient or forensic disability client

(1)This section applies if a provision of this Act states that—
(a)an authorised mental health service is responsible for an involuntary patient; or
(b)the forensic disability service is responsible for a person subject to a forensic order (disability).
(2)If subsection (1)(a) applies, the administrator of the authorised mental health service is responsible for the treatment and care of the involuntary patient under the authority or order to which the person is subject.
(3)If subsection (1)(b) applies, the administrator of the forensic disability service is responsible for the care of the person under the forensic order (disability) to which the person is subject.

16Purpose of limited community treatment

The purpose of limited community treatment is to support a patient’s recovery by transitioning the patient to living in the community with appropriate treatment and care.

Part 4 Overview of Act

17Purpose of pt 4

This part gives an overview of this Act.

18Treatment authorities

(1)A treatment authority is a lawful authority to provide treatment and care to a person who has a mental illness who does not have capacity to consent to be treated.
(2)A treatment authority may be made for a person if an authorised doctor considers the treatment criteria apply to the person and there is no less restrictive way for the person to receive treatment and care for the person’s mental illness, including, for example, under an advance health directive.
(3)Key elements of the treatment criteria are that the person does not have capacity to consent to be treated and there is a risk of imminent serious harm to the person or others.
(4)The category of a treatment authority is—
(a)community, if the person’s treatment and care needs can be met in the community; or
(b)inpatient, if the person’s treatment and care needs can be met only by being an inpatient.
(5)If the category of a person’s treatment authority is inpatient, the person may receive limited community treatment, for a period of not more than 7 consecutive days, if authorised under this Act.

19Persons in custody

A person in custody, including, for example, in a watch house or prison, may be transferred to an authorised mental health service for an assessment to decide if a treatment authority should be made for the person, or for treatment and care for the person’s mental illness.

20Psychiatrist reports

(1)If a person subject to a treatment authority, forensic order or treatment support order is charged with a serious offence, the person, or someone on the person’s behalf, may request that a psychiatrist prepare a report stating the psychiatrist’s opinion about whether the person—
(a)may have been of unsound mind at the time of the alleged commission of the serious offence; or
(b)may be unfit for trial.
(2)Also, if a person is charged with a serious offence, whether or not the person is subject to a treatment authority, forensic order or treatment support order, the chief psychiatrist may direct that a psychiatrist prepare a report about the matters mentioned in subsection (1) if the chief psychiatrist considers it is in the public interest.
(3)A serious offence is an indictable offence, other than an offence that, under the Criminal Code , must be heard and decided summarily.

21Mental Health Court

(1)The Mental Health Court decides whether a person charged with a serious offence or other particular offences was of unsound mind or, for the offence of murder, of diminished responsibility, when the offence was allegedly committed or is unfit for trial.
(2)If the court decides a person was of unsound mind when the offence was allegedly committed, or is unfit for trial, the court may make a forensic order or treatment support order for the person.
(3)The forensic order may be a forensic order (mental health) or a forensic order (disability).
(4)The court must also decide the category of the order and, if the category is inpatient, any limited community treatment for the person.
(5)If the court decides a person is unfit for trial and the unfitness for trial is not permanent, the person’s fitness for trial is periodically reviewed by the Mental Health Review Tribunal.

22Magistrates Courts

(1)A Magistrates Court may dismiss a complaint for a simple offence if the court is reasonably satisfied, on the balance of probabilities, that the person charged with the offence was, or appears to have been, of unsound mind when the offence was allegedly committed or is unfit for trial.
(2)A Magistrates Court may also order that a person appearing before the court be examined by an authorised doctor to decide whether to make a treatment authority for the person or to make recommendations about the person’s treatment and care.

23Treatment and care of patients

(1)The treatment and care of a patient is the responsibility of authorised doctors and administrators of authorised mental health services.
(2)A person subject to a treatment authority must be regularly assessed to decide if the treatment authority should continue.
(3)An authorised doctor may amend a person’s treatment authority, forensic order or treatment support order by changing the category of the authority or order, its conditions, or the nature or extent of limited community treatment.
(4)An amendment of an authority or order by an authorised doctor must be in accordance with decisions of the Mental Health Court and the Mental Health Review Tribunal.
(5)To the extent practicable, decisions in relation to treatment and care for a patient must be made in consultation with the patient and the patient’s family, carers and other support persons, subject to the patient’s right to privacy.
(6)The performance of electroconvulsive therapy and non-ablative neurosurgical procedures is regulated under this Act.
(7)Psychosurgery is prohibited under this Act.

24Mechanical restraint, seclusion, physical restraint and other practices

(1)The use of mechanical restraint, seclusion, physical restraint, and other practices are regulated under this Act.
(2)The use of mechanical restraint on an involuntary patient in an authorised mental health service must be approved by the chief psychiatrist.
(3)Mechanical restraint and seclusion may be used only if there is no other reasonably practicable way to protect the patient or others from physical harm.

25Rights of patients

(1)This Act provides for a statement of rights for involuntary patients and other patients of authorised mental health services.
(2)A person may appoint 1 or 2 nominated support persons to support the person under this Act if the person becomes an involuntary patient.
(3)The health service chief executive responsible for a public sector mental health service must appoint 1 or more independent patient rights advisers to advise patients and their nominated support persons, family, carers and other support persons of their rights under this Act.

26Chief psychiatrist

(1)The chief psychiatrist protects the rights of patients in authorised mental health services.
(2)The chief psychiatrist makes policies and practice guidelines that must be complied with by persons performing functions in authorised mental health services.
(3)The chief psychiatrist has powers to investigate matters under this Act.

27Information notices

Victims of unlawful acts, close relatives of the victims, and other particular persons may apply to the chief psychiatrist to receive specific information about the person who committed the unlawful act, including when treatment in the community is authorised for the person.

28Mental Health Review Tribunal

(1)The Mental Health Review Tribunal reviews the following—
(a)treatment authorities;
(b)forensic orders;
(c)treatment support orders;
(d)the fitness for trial of particular persons;
(e)the detention of minors in high security units.
(2)The Mental Health Review Tribunal also hears applications for the following—
(a)examination authorities;
(b)the approval of regulated treatment;
(c)the transfer of particular patients into and out of Queensland.
(3)This Act states when periodic reviews of treatment authorities, forensic orders and treatment support orders must take place.
(4)An involuntary patient, or an interested person for the patient, may apply for a review at any time.

29Appeals

This Act provides for—
(a)an appeal to the Mental Health Review Tribunal against particular decisions of the chief psychiatrist or the administrator of an authorised mental health service; and
(b)an appeal to the Mental Health Court against particular decisions of the Mental Health Review Tribunal; and
(c)an appeal to the Court of Appeal against a decision of the Mental Health Court on a reference in relation to a person.

Chapter 2 Making of treatment authorities after examination and assessment

Part 1 Preliminary

30Purpose of ch 2

The purpose of this chapter is to provide for—
(a)matters relating to the examination and assessment of persons who may have a mental illness; and
(b)the making of treatment authorities for persons who have a mental illness if—
(i)the treatment criteria apply to the person; and
(ii)there is no less restrictive way for the person to receive treatment and care for the person’s mental illness.

Note—

See also chapter 3 for other matters in relation to persons in custody who have or may have a mental illness.

Part 2 Examinations and recommendations for assessment

Division 1 Examinations generally

31Examination

(1)A doctor or authorised mental health practitioner may examine a person to decide whether to make a recommendation for assessment for the person.
(2)Without limiting subsection (1), the examination may be carried out—
(a)if the person asks for, or consents to, the examination; or
(b)under this Act or another Act providing for the examination, including, for example, under an examination authority or emergency examination authority.

Note—

See chapter 12 , part 8 in relation to applications for examination authorities.
(3)However, a doctor or authorised mental health practitioner must not examine a person subject to a forensic order (mental health), forensic order (Criminal Code) or treatment support order to decide whether to make a recommendation for assessment for the person.

Division 2 Powers under examination authorities

32Powers of doctor or authorised mental health practitioner

(1)This section applies if a person is subject to an examination authority.
(2)A doctor or authorised mental health practitioner may—
(a)enter a place stated in the authority or another place in which the doctor or authorised mental health practitioner considers the person may be found, and any other place necessary for entry to either of those places, to find the person; and
(b)examine the person, without the person’s consent, at—
(i)the place at which the person is found; or
(ii)if the doctor or authorised mental health practitioner considers it clinically appropriate—an authorised mental health service or public sector health service facility; and
(c)detain the person at the place at which the person is examined—
(i)if the place is an authorised mental health service or public sector health service facility—for a period, of not more than 6 hours, starting when the person first attends at the service or facility for the examination; or
(ii)otherwise—for a period, of not more than 1 hour, starting when the person is found at the place.
(3)If subsection (2)(b)(ii) applies to the person, an authorised person may transport the person to the authorised mental health service or public sector health service facility for the examination.
(4)The doctor or authorised mental health practitioner examining the person may extend, or further extend, the period under subsection (2)(c)(i) before it ends if the doctor or authorised mental health practitioner considers the extension is necessary to carry out or finish the examination.
(5)An extension under subsection (4) may be for a period, of not more than 12 hours, starting when the person first attends at the service or facility for the examination.

s 32 amd 2017 No. 3s 3

33Reasonable help and force to exercise powers

A doctor or authorised mental health practitioner may exercise a power under section 32 with the help, and using the force, that is necessary and reasonable in the circumstances.

34Asking police officer for help

For performing a function or exercising a power under section 32 in relation to a person, a doctor or authorised mental health practitioner is a public official for the Police Powers and Responsibilities Act 2000 .

Note—

For the powers of a police officer while helping a public official, see the Police Powers and Responsibilities Act 2000 , section 16 .

35Action before exercising powers

(1)Before performing a function or exercising a power under section 32 in relation to a person, a doctor or authorised mental health practitioner must do or make a reasonable attempt to do each of the following—
(a)identify himself or herself to the person;
(b)tell the person an examination authority has been made;
(c)explain to the person, in general terms, the nature and effect of the authority;
(d)give the person a copy of the authority, if requested;
(e)if the doctor or health practitioner is entering a place—give the person an opportunity to allow the doctor or health practitioner immediate entry to the place without using force.
(2)However, the doctor or authorised mental health practitioner need not comply with subsection (1) if the doctor or health practitioner believes on reasonable grounds that not complying with the subsection is required to ensure the execution of the authority is not frustrated.
(3)The doctor or authorised mental health practitioner must give a copy of the authority to the person’s nominated support persons, personal guardian or attorney, if requested.

Division 3 Detention of particular persons to make recommendation for assessment

36Powers of doctor or authorised mental health practitioner

(1)This section applies if—
(a)a person asks for, or consents to, an examination under section 31 by a doctor or authorised mental health practitioner in an authorised mental health service or public sector health service facility; and
(b)after examining the person, the doctor or authorised mental health practitioner decides under section 39 to make a recommendation for assessment for the person; and
(c)there is a risk the person will leave the authorised mental health service or public sector health service facility in which the person is being examined before the recommendation for assessment is made.
(2)The doctor or authorised mental health practitioner may detain the person in the authorised mental health service or public sector health service facility for the period, of not more than 1 hour, reasonably necessary to make the recommendation for assessment.
(3)The doctor or authorised mental health practitioner must record in the person’s health records—
(a)the reasons for detaining the person under subsection (2); and
(b)the duration of the detention.

37Reasonable help and force to exercise powers

A doctor or authorised mental health practitioner may exercise a power under section 36 with the help, and using the force, that is necessary and reasonable in the circumstances.

38Action before exercising powers

Before exercising a power under section 36 in relation to a person, a doctor or authorised mental health practitioner must do or make a reasonable attempt to do the following—
(a)identify himself or herself to the person;
(b)tell the person a recommendation for assessment will be made;
(c)explain to the person, in general terms, the nature and effect of a recommendation for assessment;
(d)explain to the person that the person will be detained in the authorised mental health service or public health service facility for the period, of not more than 1 hour, reasonably necessary to make the recommendation for assessment;
(e)give the person an opportunity to allow the doctor or health practitioner to make the recommendation for assessment without detaining the person.

Division 4 Recommendations for assessment

39Making recommendation for assessment

(1)A doctor or authorised mental health practitioner may, after examining a person under section 31 , make a recommendation for assessment for the person if satisfied—
(a)the treatment criteria may apply to the person; and
(b)there appears to be no less restrictive way for the person to receive treatment and care for the person’s mental illness.
(2)The recommendation for assessment must be made within 7 days after the examination.
(3)The recommendation for assessment must be in the approved form.

40Notice of making

(1)As soon as practicable after deciding to make the recommendation for assessment, the doctor or authorised mental health practitioner must—
(a)tell the person of the decision; and
(b)explain to the person the effect of the recommendation; and
(c)give the person a copy of the recommendation, if requested.
(2)Subsection (1)(c) does not apply if the doctor or authorised mental health practitioner considers giving the person a copy may adversely affect the health and wellbeing of the person.
(3)Also, the doctor or authorised mental health practitioner must give a copy of the recommendation to the person’s nominated support persons, personal guardian or attorney, if requested.

41Duration

A recommendation for assessment is in force for 7 days after the day it is made.

42Revocation

(1)A doctor or authorised mental health practitioner who makes a recommendation for assessment for a person may revoke the recommendation at any time before the start of the assessment period for the person.
(2)The doctor or authorised mental health practitioner may act under subsection (1) only if the doctor or health practitioner is no longer satisfied—
(a)the treatment criteria may apply to the person; or
(b)there appears to be no less restrictive way for the person to receive treatment and care for the person’s mental illness.

Part 3 Assessments

43Making assessment

(1)An authorised doctor may make an assessment of a person subject to a recommendation for assessment to decide—
(a)whether the treatment criteria apply to the person; and
(b)whether there is a less restrictive way for the person to receive treatment and care for the person’s mental illness.
(2)The authorised doctor who makes the assessment under subsection (1) must not be the authorised doctor who made the recommendation for assessment for the person.
(3)Subsection (2) does not apply if the authorised doctor is an authorised doctor for an authorised mental health service (rural and remote) and is the only authorised doctor reasonably available to make the assessment.
(4)For subsection (1)(b), the authorised doctor must take reasonable steps to find out whether there is a less restrictive way for the person to receive treatment and care for the person’s mental illness, including, for example, by searching the person’s health records to find out whether the person has made an advance health directive or has a personal guardian.

44Where and how person may be assessed

(1)A person subject to a recommendation for assessment may be assessed in—
(a)an authorised mental health service; or
(b)a public sector health service facility; or
(c)another place considered clinically appropriate by the authorised doctor making the assessment.
(2)An authorised person may transport the person to an authorised mental health service or a public sector health service facility for assessment.

Notes—

1For a person in custody subject to a recommendation for assessment, see section 65 .
2For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.
(3)An authorised doctor making an assessment of a person must discuss the assessment with the person.

45Detention for assessment

(1)If a person subject to a recommendation for assessment is to be assessed in an authorised mental health service or public sector health service facility, the person may be detained for assessment in the service or facility for a period of not more than 24 hours starting—
(a)if the person is at the service or facility when the recommendation for assessment is made—when the recommendation is made; or
(b)otherwise—when the person first attends at the service or facility for the assessment.
(2)The authorised doctor making the assessment of the person may extend, or further extend, the period under subsection (1) before it ends to a period of not more than 72 hours after it starts if the authorised doctor considers the extension is necessary to carry out or finish the assessment.
(3)If, at any time during the period mentioned in subsection (1), or extended under subsection (2), the authorised doctor making the assessment makes a decision on the assessment, the period for which the person may be detained for assessment ends.
(4)The period under this section for which the person may be detained for assessment is the assessment period for the person.

s 45 amd 2017 No. 3s 4

46Start of assessment period to be noted

(1)If the assessment period for a person starts as mentioned in section 45 (1)(a)—
(a)the doctor or authorised mental health practitioner who made the recommendation for assessment for the person must make a note on the recommendation of the time when the assessment period starts; and
(b)the note must be made when the recommendation for assessment is made.
(2)If the assessment period for a person starts as mentioned in section 45 (1)(b)—
(a)an employee of the service or facility must make a note on the recommendation for assessment of the time when the assessment period starts; and
(b)the note must be made as soon as practicable after the person is admitted to the service or facility.

s 46 amd 2017 No. 3s 5

47Explaining decision not to make treatment authority

(1)This section applies if, on making an assessment of a person subject to a recommendation for assessment, an authorised doctor decides—
(a)the treatment criteria do not apply to the person; or
(b)there is a less restrictive way for the person to receive treatment and care for the person’s mental illness.
(2)The authorised doctor must—
(a)tell the person of the decision; and
(b)explain its effect to the person; and
(c)make a note on the recommendation for assessment of the decision not to make a treatment authority for the person.

Part 4 Treatment authorities

48Application of pt 4

This part applies if, on making an assessment of a person under part 3 , the authorised doctor making the assessment is satisfied—
(a)the treatment criteria apply to the person; and
(b)there is no less restrictive way for the person to receive treatment and care for the person’s mental illness.

49Making treatment authority

The authorised doctor may make an authority (a treatment authority) for the person.

50Form of treatment authority

(1)The treatment authority must—
(a)be in the approved form; and
(b)state the following—
(i)the grounds on which the authorised doctor is satisfied the treatment criteria apply to the person;
(ii)the authorised mental health service responsible for the person’s treatment and care under the authority;
(iii)the category of the authority;
(iv)if the authorised doctor decides under section 51 (1) that the category of the authority is inpatient—whether limited community treatment is authorised for the person;
(v)any conditions the authorised doctor considers necessary for the person’s treatment and care.

Note—

See schedule 3 , definition condition.
(2)For subsection (1)(b)(ii), if the authorised doctor decides under section 51 (1) that the category of the authority is inpatient, the authorised mental health service responsible for the person’s treatment and care must not be a high security unit without the prior written approval of the chief psychiatrist.

s 50 amd 2017 No. 3s 6

51Category

(1)If the authorised doctor makes a treatment authority for the person, and the person is not a classified patient, the authorised doctor must decide whether the category of the authority is—
(a)inpatient; or
(b)community.
(2)In deciding the category of the authority, the authorised doctor must have regard to the relevant circumstances of the person.
(3)However, the authorised doctor may decide the category of the authority is inpatient only if the authorised doctor considers, after having regard to the relevant circumstances of the person, that 1 or more of the following can not reasonably be met if the category of the authority is community—
(a)the person’s treatment and care needs;
(b)the safety and welfare of the person;
(c)the safety of others.
(4)If the person is a classified patient, the category of the authority is inpatient.

52Limited community treatment

(1)If the authorised doctor decides under section 51 (1) that the category of the treatment authority is inpatient, the authorised doctor must decide whether to authorise limited community treatment.

Note—

See chapter 7 , part 6 for the authorisation of limited community treatment for classified patients.
(2)The authorised doctor may decide to authorise limited community treatment only if satisfied limited community treatment is appropriate having regard to—
(a)the relevant circumstances of the person; and
(b)the purpose of limited community treatment.
(3)If limited community treatment is authorised under this section, the person’s treatment authority must state—
(a)the nature and conditions of the limited community treatment; and
(b)the period, of not more than 7 consecutive days, of the limited community treatment; and
(c)the duration for which the authorisation is in force.

Example for paragraphs (b) and (c)—

limited community treatment may be authorised for a period of 1 day per week for a duration of 8 weeks

53Nature and extent of treatment and care

(1)The authorised doctor must decide the nature and extent of the treatment and care to be provided to the person under the treatment authority.
(2)In deciding the nature and extent of the treatment and care, the authorised doctor must—
(a)discuss the treatment and care to be provided with the person; and
(b)have regard to the views, wishes and preferences of the person, to the extent they can be expressed, including, for example, in an advance health directive.

s 53 sub 2017 No. 3s 7

54When advance health directive not followed

(1)This section applies if—
(a)the person has an advance health directive relating to the person’s future treatment and care for a mental illness; and
(b)either—
(i)the authorised doctor decides to make a treatment authority despite the person having an advance health directive; or
(ii)the nature and extent of the treatment and care decided by the authorised doctor under section 53 is inconsistent with the views, wishes and preferences of the person expressed in the advance health directive.
(2)The authorised doctor must—
(a)explain to the person the reasons why the authorised doctor made the decision mentioned in subsection (1)(b); and
(b)record the reasons in the person’s health records.

55Notice of making

(1)As soon as practicable after making a treatment authority for a person, the authorised doctor must—
(a)tell the person of the decision; and
(b)explain its effect to the person.
(2)If the authorised doctor is a psychiatrist, the administrator of the person’s treating health service must, within 7 days after the treatment authority is made—
(a)give the person a copy of the authority; and
(b)give the person’s nominated support persons, personal guardian or attorney a copy of the authority, if requested; and
(c)give the tribunal written notice of its making.
(3)If the authorised doctor is not a psychiatrist, the administrator of the person’s treating health service must—
(a)give the person a copy of the authority, if requested; and
(b)give the person’s nominated support persons, personal guardian or attorney a copy of the authority, if requested.

56Review of treatment authority if not made by psychiatrist

(1)This section applies if a treatment authority is made by an authorised doctor who is not a psychiatrist.
(2)An authorised psychiatrist must review the treatment authority and decide whether—
(a)to confirm the treatment authority, with or without amendment; or
(b)to revoke the treatment authority.
(3)The review must happen—
(a)within 3 days (the review period) after the treatment authority is made; or
(b)if the person subject to the treatment authority is a patient of an authorised mental health service (rural and remote) and it is not reasonably practicable to complete the review within 3 days—within 7 days (also the review period) after the treatment authority is made.
(4)An authorised doctor may give the person subject to the treatment authority a written notice directing the person to attend for the review at a stated authorised mental health service or public sector health service facility on a stated day within the review period.

Note—

See chapter 11 , part 6 , division 3 for the powers that may be used in relation to a person who does not comply with a direction under subsection (4).
(5)The person subject to the treatment authority may be detained for the review in the stated service or facility for a period of not more than 6 hours starting when the person attends for the review at the service or facility.
(6)A review of a treatment authority does not affect the operation of the treatment authority before a decision is made to confirm or revoke it under subsection (2).

s 56 amd 2017 No. 3s 8

57Decision on review

(1)On a review under section 56 of a treatment authority, the authorised psychiatrist may decide to confirm the treatment authority only if satisfied—
(a)the treatment criteria apply to the person; and
(b)there is no less restrictive way for the person to receive treatment and care for the person’s mental illness.
(2)If the authorised psychiatrist decides to confirm the treatment authority, the authorised psychiatrist must—
(a)decide whether to amend the treatment authority in any of the following ways—
(i)to change the category of the authority;
(ii)to authorise or revoke, or change the nature or extent of, limited community treatment;
(iii)to impose a condition on, or change a condition of, the authority; and
(b)decide the nature and extent of the treatment and care to be provided to the person under the treatment authority.
(3)In deciding—
(a)whether to change the category of the authority, section 51 applies to the authorised psychiatrist as if a reference in the section to an authorised doctor were a reference to the authorised psychiatrist; and
(b)whether to authorise or revoke, or change the nature or extent of, limited community treatment, section 52 applies to the authorised psychiatrist as if a reference in the section to an authorised doctor were a reference to the authorised psychiatrist; and
(c)the nature and extent of the treatment and care to be provided to the person, section 53 applies to the authorised psychiatrist as if a reference in the section to an authorised doctor were a reference to the authorised psychiatrist.
(4)If, after reviewing the treatment authority, the authorised psychiatrist is not satisfied of the matters mentioned in subsection (1), the authorised psychiatrist must decide to revoke the treatment authority.
(5)The authorised psychiatrist must make a note on the treatment authority of the decision on the review.
(6)If a treatment authority made by an authorised doctor who is not an authorised psychiatrist is not confirmed under subsection (1) or revoked under subsection (4) within the review period for the treatment authority, the treatment authority is revoked at the end of the review period.
(7)However, subsection (6) does not apply if the person does not attend for the review as directed under section 56 (4).

58Notice about review

(1)As soon as practicable after making a decision under section 57 on a review of a treatment authority for a person, the authorised psychiatrist must—
(a)tell the person of the decision; and
(b)explain its effect to the person.
(2)If the decision on the review is to confirm the treatment authority, the administrator of the person’s treating health service must, within 7 days after the decision—
(a)give the person a copy of the authority; and
(b)give the person’s nominated support persons, personal guardian or attorney a copy of the authority, if requested; and
(c)give the tribunal written notice of the decision.

59Date for first assessment

(1)If an authorised doctor makes a treatment authority for a person, the authorised doctor must decide and record in the person’s health records a date for the first regular assessment of the patient under section 205 .
(2)The date for the assessment must be not later than 3 months after the day the treatment authority is made.

60Relationship with forensic order (disability)

If a treatment authority for a person is inconsistent with a forensic order (disability) for the person, the forensic order (disability) prevails to the extent of the inconsistency.

Chapter 3 Persons in custody

Part 1 Preliminary

61Purpose of ch 3

The purpose of this chapter is to provide for—
(a)the transport of persons in custody to an inpatient unit of an authorised mental health service—
(i)for assessment under chapter 2 , part 3 ; or
(ii)to receive treatment and care under this Act for the person’s mental illness; and
(b)persons subject to examination orders or court examination orders remaining in an inpatient unit of an authorised mental health service to receive treatment and care under this Act for the person’s mental illness; and
(c)particular requirements that apply when persons become classified patients; and
(d)the return to custody, or release from detention in an authorised mental health service, of classified patients.

62Definitions for ch 3

In this chapter—

administrator consent, for a person in custody, means consent given by the administrator of an authorised mental health service under section 69 for the transport of the person.

classified patient see section 64 (1).

classified patient (involuntary) see section 64 (2).

classified patient (voluntary) see section 64 (3).

custodian consent, for a person in custody, means consent given under section 71 for the transport of the person.

notice event, see section 81 (1).

person in custody see section 63 .

transfer recommendation see section 68 (2).

63Meaning of person in custody

(1)A person in custody is a person who is in lawful custody—
(a)on a charge of an offence or awaiting sentence on conviction for an offence; or
(b)without charge under—
(i)an Act of the State, other than this Act; or
(ii)an Act of the Commonwealth; or
(c)serving a sentence of imprisonment, or period of detention under a court order, for an offence and who is not released on parole.
(2)To remove any doubt, it is declared that an offence mentioned in subsection (1) includes an offence against a law of the Commonwealth.

Note—

See the Judiciary Act 1903 (Cwlth), section 68 (Jurisdiction of State and Territory courts in criminal cases).

64Meaning of classified patient

(1)A classified patient is—
(a)a classified patient (involuntary); or
(b)a classified patient (voluntary).
(2)A classified patient (involuntary) is—
(a)a person who is—
(i)subject to any of the following—
(A)a recommendation for assessment;
(B)a treatment authority;
(C)a forensic order (mental health);
(D)a treatment support order; and
(ii)transported under part 2 from a place of custody to an inpatient unit of an authorised mental health service; and
(iii)admitted to the inpatient unit of the authorised mental health service; or
(b)a person who—
(i)is subject to any of the following—
(A)a treatment authority;
(B)a forensic order (mental health);
(C)a treatment support order; and
(ii)remains in an inpatient unit of an authorised mental health service under section 74 .
(3)A classified patient (voluntary) is—
(a)a person who—
(i)is transported under part 2 from a place of custody to an inpatient unit of an authorised mental health service; and
(ii)is admitted to the inpatient unit of the authorised mental health service; and
(iii)consents under section 67 or 79 to receiving treatment and care for the person’s mental illness in the inpatient unit of the authorised mental health service; or
(b)a person who—
(i)remains in an inpatient unit of an authorised mental health service under section 74 ; and
(ii)consents under section 74 to receiving treatment and care for the person’s mental illness in the inpatient unit of the authorised mental health service.

Part 2 Transport of persons in custody to authorised mental health services

65Transport for assessment

(1)This section applies to a person in custody who is subject to a recommendation for assessment.
(2)The person may be transported by an authorised person from the person’s place of custody to an inpatient unit of an authorised mental health service for assessment under chapter 2 , part 3 .
(3)The authorised person may transport the person only if both of the following have been made for the person—
(a)an administrator consent;
(b)a custodian consent.
(4)Despite section 44 (1) and (2), the person may be transported only to, and assessed only in, an inpatient unit of an authorised mental health service.

66Transport for treatment and care under treatment authority or particular orders

(1)This section applies to a person in custody who is subject to a treatment authority, forensic order (mental health) or treatment support order.
(2)The person may be transported by an authorised person from the person’s place of custody to an inpatient unit of an authorised mental health service to receive treatment and care for the person’s mental illness.
(3)The authorised person may transport the person only if all of the following have been made for the person—
(a)a transfer recommendation;
(b)an administrator consent;
(c)a custodian consent.
(4)When the person is admitted to the inpatient unit of the authorised mental health service—
(a)if the category of the person’s treatment authority, forensic order (mental health) or treatment support order is community—the category is changed to inpatient; and
(b)if limited community treatment has been authorised for the person by an authorised doctor under section 52 , 57, 209, 212 or 216—the authorisation is revoked; and
(c)if limited community treatment has been ordered or approved by the Mental Health Court or tribunal—the order or approval is of no effect while the person is receiving treatment and care for the person’s mental illness in the inpatient unit.

67Transport for treatment and care by consent

(1)This section applies to a person in custody who—
(a)is not subject to a treatment authority, forensic order (mental health) or treatment support order; and
(b)consents to receiving treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service.
(2)The person may be transported by an authorised person from the person’s place of custody to an inpatient unit of an authorised mental health service to receive treatment and care for the person’s mental illness.
(3)The authorised person may transport the person only if all of the following have been made for the person—
(a)a transfer recommendation;
(b)an administrator consent;
(c)a custodian consent.
(4)The person may withdraw the person’s consent under subsection (1)(b) at any time.

Note—

If the person withdraws consent, see sections 80 and 83.
(5)Subsection (4) does not prevent a treatment authority being made under chapter 2 for the person.

68Transfer recommendation

(1)This section applies to a person in custody who—
(a)is subject to a treatment authority, forensic order (mental health) or treatment support order; or
(b)consents to receiving treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service.
(2)A doctor or authorised mental health practitioner may, in the approved form, make a recommendation (a transfer recommendation) for the person to be transported by an authorised person from the person’s place of custody to an inpatient unit of an authorised mental health service to receive treatment and care for the person’s mental illness.
(3)The doctor or authorised mental health practitioner may make the transfer recommendation only if satisfied—
(a)for a person who is not subject to a treatment authority, forensic order (mental health) or treatment support order—the person may have a mental illness; and
(b)it is clinically appropriate for the person to receive treatment and care for the person’s mental illness in an authorised mental health service.
(4)As soon as practicable after making the transfer recommendation, the doctor or authorised mental health practitioner must—
(a)tell the person of the making of the transfer recommendation; and
(b)explain its effect to the person; and
(c)give the person a copy of the transfer recommendation, if requested.
(5)Subsection (4)(c) does not apply if the doctor or authorised mental health practitioner considers giving the copy may adversely affect the health and wellbeing of the person.
(6)Also, the doctor or authorised mental health practitioner must give a copy of the transfer recommendation to the person’s nominated support persons, personal guardian or attorney, if requested.

69Administrator consent

(1)This section applies to a person in custody who—
(a)is subject to a recommendation for assessment; or
(b)is subject to a treatment authority, forensic order (mental health) or treatment support order; or
(c)consents to receiving treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service.
(2)The administrator of an authorised mental health service may, in the approved form, consent to the person in custody being transported by an authorised person from the person’s place of custody to an inpatient unit of the authorised mental health service—
(a)for a person mentioned in subsection (1)(a)—for assessment under chapter 2 , part 3 ; or
(b)for a person mentioned in subsection (1)(b) or (c)—to receive treatment and care for the person’s mental illness.
(3)The administrator may consent only if satisfied—
(a)the authorised mental health service has capacity—
(i)for a person mentioned in subsection (1)(a)—to carry out the assessment; or
(ii)for a person mentioned in subsection (1)(b) or (c)—to provide treatment and care for the person’s mental illness; and
(b)for an authorised mental health service that is not a high security unit—that carrying out the assessment, or providing the treatment and care, would not pose an unreasonable risk to the safety of the person or others having regard to—
(i)the person’s mental state and psychiatric history; and
(ii)the person’s treatment and care needs; and
(iii)the security requirements for the person.

70Prior approval of chief psychiatrist for transport of minor to high security unit

(1)If a person in custody mentioned in section 69 (1) is a minor, the administrator of an authorised mental health service that is a high security unit must not give consent under section 69 for the transport of the minor from the minor’s place of custody to the high security unit unless the chief psychiatrist has given prior written approval of the giving of the consent.
(2)In deciding whether to give the approval, the chief psychiatrist must have regard to the following—
(a)the minor’s mental state and psychiatric history;
(b)the minor’s treatment and care needs;
(c)the security requirements for the minor.
(3)As soon as practicable after deciding to give the approval, the chief psychiatrist must give a copy of the written approval to the administrator.

71Custodian consent

(1)This section applies to a person in custody who—
(a)is subject to a recommendation for assessment; or
(b)is subject to a treatment authority, forensic order (mental health) or treatment support order; or
(c)consents to receiving treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service.
(2)The custodian of the person in custody must, in the approved form, consent to the person being transported by an authorised person from the person’s place of custody to an inpatient unit of an authorised mental health service—
(a)for a person mentioned in subsection (1)(a)—for assessment under chapter 2 , part 3 ; or
(b)for a person mentioned in subsection (1)(b) or (c)—to receive treatment and care for the person’s mental illness.
(3)However, subsection (2) does not apply if the custodian is satisfied that carrying out the assessment, or providing the treatment and care, would pose an unreasonable risk to the safety of the person or others having regard to the security requirements for the person.
(4)The approved form must state the particular authorised mental health service to which the person is to be transported for the assessment or the treatment and care.

72Notice to chief psychiatrist if person in custody not transported within 72 hours

(1)This section applies if—
(a)a person mentioned in section 65 is not transported to an inpatient unit of an authorised mental health service within 72 hours after the recommendation for assessment for the person is made; or
(b)a person mentioned in section 66 or 67 is not transported to an inpatient unit of an authorised mental health service within 72 hours after the transfer recommendation for the person is made.
(2)As soon as practicable after the end of the 72 hour period, a doctor or authorised mental health practitioner must give the chief psychiatrist written notice that the person has not been transported to an inpatient unit of an authorised mental health service under the recommendation for assessment or transfer recommendation.

73Chief psychiatrist consent for transport

(1)This section applies if the chief psychiatrist—
(a)receives a written notice under section 72 (2) about a person in custody; or
(b)otherwise becomes aware a person has not been transported to an inpatient unit of an authorised mental health service under a recommendation for assessment or transfer recommendation for the person.
(2)The chief psychiatrist may decide to consent to the person being transported to an inpatient unit of an authorised mental health service for the assessment or for the treatment and care.
(3)In deciding whether to give consent, the chief psychiatrist must have regard to the matters to which an administrator of an authorised mental health service must have regard under section 69 (3) in giving consent under section 69 (2).
(4)As soon as practicable after the chief psychiatrist decides to give consent, the chief psychiatrist must give written notice of the decision to the administrator of the authorised mental health service to which the person is to be transported.
(5)The chief psychiatrist’s consent has the same effect as if the administrator had given consent under section 69 (2) for the transport of the person.
(6)As soon as practicable after receiving the notice under subsection (4), and subject to a custodian consent being given for the person, the administrator must arrange for the person to be transported by an authorised person to the inpatient unit of the authorised mental health service.

Part 3 Persons in custody remaining in authorised mental health services

74Person subject to examination order or court examination order remaining in authorised mental health service

(1)This section applies if—
(a)a person is transported by an authorised person, under an examination order or a court examination order, from the person’s place of custody to an authorised mental health service; and
(b)the authorised doctor making the examination considers it is clinically appropriate for the person to receive treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service; and
(c)either—
(i)the person is subject to a treatment authority, forensic order (mental health) or treatment support order; or
(ii)the person consents to receiving treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service.
(2)The person may remain in the inpatient unit of the authorised mental health service to receive treatment and care for the person’s mental illness if all of the following have been made for the person—
(a)a recommendation in writing by the authorised doctor for the person to receive treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service;
(b)an administrator consent;
(c)a custodian consent.
(3)For subsection (2)(a), the authorised doctor may make the recommendation only if satisfied the person may have a mental illness and it is clinically appropriate for the person to receive treatment and care for the person’s mental illness in an authorised mental health service.
(4)For subsection (2)(b), the administrator of an authorised mental health service may, in the approved form, consent to the person remaining in an inpatient unit of the authorised mental health service to receive treatment and care for the person’s mental illness.
(5)The administrator may consent only if satisfied—
(a)the authorised mental health service has capacity to provide treatment and care for the person’s mental illness; and
(b)for an authorised mental health service that is not a high security unit—that providing the treatment and care would not pose an unreasonable risk to the safety of the person or others having regard to—
(i)the person’s mental state and psychiatric history; and
(ii)the person’s treatment and care needs; and
(iii)the security requirements for the person.
(6)For subsection (2)(c), the custodian of the person must, in the approved form, consent to the person remaining in an inpatient unit of the authorised mental health service to receive treatment and care for the person’s mental illness.
(7)However, subsection (6) does not apply if the custodian is satisfied that providing the treatment and care would pose an unreasonable risk to the safety of the person or others having regard to the security requirements for the person.
(8)The authorised doctor may detain the person, under the order, in the authorised mental health service for the period, of not more than 7 days, reasonably necessary to obtain an administrator consent and custodian consent for the person.
(9)When a person mentioned in subsection (1)(c)(i) starts receiving treatment and care for the person’s mental illness as a classified patient in the inpatient unit of the authorised mental health service—
(a)if the category of the person’s treatment authority, forensic order (mental health) or treatment support order is community—the category is changed to inpatient; and
(b)if limited community treatment has been authorised for the person by an authorised doctor under section 52 , 57, 209, 212 or 216—the authorisation is revoked; and
(c)if limited community treatment has been approved or ordered by the Mental Health Court or tribunal—the approval or order is of no effect while the person is receiving treatment and care in the inpatient unit.
(10)Also, as soon as practicable after the person remains in the inpatient unit of the authorised mental health service to receive treatment and care for the person’s mental illness, the authorised doctor must—
(a)tell the person of the making of the recommendation under subsection (2)(a); and
(b)explain its effect to the person; and
(c)give the person a copy of the recommendation, if requested.
(11)Subsection (10)(c) does not apply if the authorised doctor considers giving the copy may adversely affect the health and wellbeing of the person.
(12)In this section—

administrator consent means consent given under subsection (4).

custodian, of a person, means the custodian of the person immediately before the making of an examination order or a court examination order for the person.

custodian consent means consent given under subsection (6).

Part 4 Requirements applying when person in custody becomes classified patient

Note—

See chapter 15 , part 2 for the suspension of criminal proceedings against a person who becomes a classified patient.

75Explanation to person in custody who becomes classified patient

If a person in custody becomes a classified patient (involuntary) or classified patient (voluntary), an authorised doctor must explain to the person how this Act applies to the person.

76Notice to chief psychiatrist of person in custody becoming classified patient

As soon as practicable after a person in custody becomes a classified patient, the administrator of the authorised mental health service to which the person is transported must give the chief psychiatrist written notice that the person is a classified patient.

77Notice to tribunal of minor in custody becoming classified patient in high security unit

(1)This section applies if a person in custody who is a minor becomes a classified patient in a high security unit.
(2)As soon as practicable after the minor becomes a classified patient, the administrator of the high security unit must give the tribunal written notice that the minor has been admitted to the high security unit.
(3)If the minor stops being detained in the high security unit, the administrator of the high security unit must, as soon as practicable, give the tribunal written notice of that fact.

78Examination of classified patient under s 201

In examining a classified patient under section 201 , the authorised doctor examining the patient must consider whether it is clinically appropriate for the patient to receive treatment and care for the patient’s mental illness in an inpatient unit of an authorised mental health service.

Note—

See section 81 for the requirement to give notice to the chief psychiatrist if the authorised doctor decides it is not clinically appropriate.

79Classified patient (involuntary) may become classified patient (voluntary)

(1)This section applies to—
(a)a classified patient (involuntary) who is subject to a recommendation for assessment, if the assessment period for the patient ends and a treatment authority is not made for the patient; or
(b)a classified patient (involuntary) who is subject to a treatment authority, forensic order (mental health) or treatment support order, if the authority or order is revoked.
(2)Despite subsection (1)(b), this section does not apply if the tribunal—
(a)on revoking the forensic order (mental health), makes either of the following for the patient—
(i)a treatment support order under section 450 ;
(ii)a treatment authority under section 451 (1)(b); or
(b)on revoking the treatment support order, makes a treatment authority under section 483 (1)(b) for the patient.
(3)The person may be detained in an inpatient unit of an authorised mental health service as a classified patient (voluntary) if—
(a)an authorised doctor or authorised mental health practitioner is satisfied—
(i)the person has, or may have, a mental illness; and
(ii)it is clinically appropriate for the person to receive treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service; and
(b)the person consents to receiving treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service.
(4)The person may withdraw consent under subsection (3)(b) at any time.

Note—

If the person withdraws consent, see sections 80 and 83.
(5)Subsection (4) does not prevent a treatment authority being made under chapter 2 for the person.

80Notice to chief psychiatrist if classified patient (voluntary) withdraws consent

(1)This section applies if a person withdraws consent, under section 67 (4) or 79(4), to receiving treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service.
(2)As soon as practicable after the person withdraws consent, an authorised doctor must give the chief psychiatrist written notice of the person’s withdrawal of consent.

Note—

See section 83 for the return of the classified patient to custody.

Part 5 Return to custody, or release from detention in authorised mental health service, of classified patient

81Notice to chief psychiatrist of notice event

(1)This section applies if any of the following happens (each a notice event)—
(a)for a person in custody who has become a classified patient (involuntary) due to a recommendation for assessment—
(i)the assessment period for the person ends and a treatment authority is not made for the person; and
(ii)the person does not become a classified patient (voluntary) under section 79 ;
(b)for a person in custody who has become a classified patient (involuntary) due to a treatment authority, forensic order (mental health) or treatment support order—
(i)the authority or order is revoked; and
(ii)the person does not become a classified patient (voluntary) under section 79 ;
(c)for a person in custody who has become a classified patient to receive treatment and care for the patient’s mental illness—an authorised doctor is satisfied it is not, or is no longer, clinically appropriate for the person to receive treatment and care for the patient’s mental illness in an inpatient unit of an authorised mental health service.
(2)Despite subsection (1)(b)(i), this section does not apply if the tribunal—
(a)on revoking the forensic order (mental health), makes either of the following for the person—
(i)a treatment support order under section 450 ;
(ii)a treatment authority under section 451 (1)(b); or
(b)on revoking the treatment support order, makes a treatment authority under section 483 (1)(b) for the person.
(3)As soon as practicable after the notice event happens, an authorised doctor must give the chief psychiatrist written notice of the notice event.
(4)The notice must—
(a)be in the approved form; and
(b)if the notice is about a notice event mentioned in subsection (1)(c)—state the reasons the authorised doctor is satisfied under that subsection.
(5)For a notice about a notice event mentioned in subsection (1)(a) or (b), the authorised doctor must—
(a)tell the classified patient of the notice; and
(b)explain its effect to the classified patient.

82Chief psychiatrist may decide to return classified patient to place of custody

(1)The chief psychiatrist, on receiving a notice about a notice event mentioned in section 81 (1)(c), may decide—
(a)it is not clinically appropriate for the classified patient to receive treatment and care for the patient’s mental illness in an inpatient unit of an authorised mental health service; and
(b)the classified patient should be returned under section 83 to a place of custody.
(2)Also, the chief psychiatrist may, on the chief psychiatrist’s own initiative, decide—
(a)it is not clinically appropriate for a classified patient to receive treatment and care for the patient’s mental illness in an inpatient unit of an authorised mental health service; and
(b)the classified patient should be returned under section 83 to a place of custody.
(3)As soon as practicable after the chief psychiatrist makes a decision under subsection (1) or (2), the chief psychiatrist must give the administrator of the classified patient’s treating health service written notice of the decision.
(4)As soon as practicable after receiving a notice under subsection (3), an authorised doctor for the classified patient’s treating health service must—
(a)tell the classified patient of the decision; and
(b)explain its effect to the classified patient.

83Return of classified patient to custody

(1)This section applies if any of the following happens (a return event)—
(a)the chief psychiatrist receives notice of a notice event mentioned in section 81 (1)(a) or (b) about a classified patient;
(b)the chief psychiatrist decides under section 82 (1) or (2) that a classified patient should be returned to a place of custody;
(c)the chief psychiatrist receives notice under section 80 that a classified patient (voluntary) has withdrawn consent to receiving treatment and care for the person’s mental illness in an inpatient unit of an authorised mental health service and a treatment authority has not been made for the person.
(2)As soon as practicable after the return event happens, the chief psychiatrist must give written notice to the following persons of the return event—
(a)the custodian who gave the custodian consent for the person (the first custodian);
(b)if the person is charged with an offence or awaiting sentence on conviction for an offence—the chief executive (justice).
(3)Within 1 day after receiving the notice, the first custodian must make arrangements for an authorised person to transport the person from the authorised mental health service—
(a)to a place in which the person will be in the first custodian’s custody; or
(b)if the first custodian agrees with another person (the second custodian) that the person should be transported to a place in which the person will be in the second custodian’s custody—to the place in which the person will be in the second custodian’s custody.
(4)An authorised person may transport the person from the authorised mental health service to the place in which the person will be in the custody of the first custodian or second custodian.
(5)The person stops being a classified patient when the person is discharged from the authorised mental health service into the custody of the first custodian or second custodian.
(6)As soon as practicable after the chief executive (justice) receives a notice under subsection (2)(b) about a person, the chief executive (justice) must give the following persons a copy of the notice—
(a)the registrar of the court in which the proceeding for the offence has been brought;
(b)the prosecuting authority for the offence;
(c)if the person is a minor—the chief executive (youth justice).

s 83 amd 2016 No. 58s 10sch 1

84Person stops being classified patient if Mental Health Court makes decision on reference

If a reference in relation to a person is made to the Mental Health Court, the person stops being a classified patient in relation to the reference when the Mental Health Court makes a decision on the reference.

85Release of classified patient

(1)This section applies if an event happens that means there is no longer a reason for a classified patient to be in lawful custody if the person were not a classified patient (a release event).

Examples of when there is no longer a reason for a classified patient to be in lawful custody—

the person would be in lawful custody on a charge of an offence, but the person has been granted bail or the prosecution of the charge is discontinued
the person would be in lawful custody awaiting sentence on conviction for an offence, but the person has been sentenced to a term of imprisonment which has been suspended or an order of imprisonment has not been made
the person would be in lawful custody serving a term of imprisonment, but the person has been released on parole or the term of imprisonment ends
(2)Within 1 day after the release event happens, the person’s custodian must give the administrator of the person’s treating health service written notice of the release event.
(3)Immediately after the administrator receives the notice—
(a)the person stops being a classified patient; and
(b)the administrator must not detain the person in the treating health service as a classified patient.
(4)As soon as practicable after receiving the notice, the administrator must give the chief psychiatrist written notice of the release event.
(5)Subsection (3) does not limit a power under this Act to detain a person in an authorised mental health service other than as a classified patient.

Chapter 4 Psychiatrist reports for serious offences

Part 1 Preliminary

86Purpose of ch 4

The purpose of this chapter is to provide for the preparation of a psychiatrist report and, in particular circumstances, a second psychiatrist report, about a person charged with a serious offence, other than an offence against a law of the Commonwealth.

87Definitions for ch 4

In this chapter—

psychiatrist report, about a person in relation to a charge of a serious offence, means a report prepared by an authorised psychiatrist stating whether the authorised psychiatrist considers the person—

(a)may have been of unsound mind when the serious offence was allegedly committed; or
(b)may be unfit for trial.

second psychiatrist report see section 100 (2).

Part 2 Psychiatrist report on request

88Application of pt 2

(1)This part applies to a person charged with a serious offence, other than an offence against a law of the Commonwealth, who, at the time of the alleged commission of the offence or any time after the alleged commission of the offence but before a court makes a final decision in the proceeding for the offence, is subject to—
(a)a treatment authority; or
(b)a forensic order under which a stated authorised mental health service is responsible for the person; or
(c)a treatment support order.
(2)For subsection (1), it is immaterial if the authority or order is revoked before the court makes a final decision in the proceeding for the offence.

89Administrator must explain effect of request

(1)As soon as practicable after the administrator of the person’s treating health service becomes aware this part applies to the person, the administrator must—
(a)tell the person a request may be made under this part for a psychiatrist report about the person in relation to the charge of the serious offence; and
(b)explain to the person the effect of a request if made.
(2)If the person is a minor, the administrator must also explain the effect of a request to 1 or more of the minor’s parents.
(3)Subsection (2) does not apply if explaining the effect to 1 or more of the minor’s parents does not appear to be in the minor’s best interests.

90Request for psychiatrist report

The following persons may ask the chief psychiatrist for a psychiatrist report about the person in relation to the charge of the serious offence—
(a)the person;
(b)the person’s nominated support person, if the nominated support person believes the request is in the person’s best interests;
(c)a personal guardian authorised to make decisions for the person under the Guardianship and Administration Act 2000 , if the request is within the guardian’s authority;
(d)an attorney authorised to make decisions for personal matters for the person under the Powers of Attorney Act 1998 , if the request is within the attorney’s authority;
(e)a parent of the person, if the person is a minor;
(f)the person’s lawyer, if the person has given instructions to the lawyer to make the request.

91Direction to prepare psychiatrist report

(1)Within 7 days after receiving a request under section 90 , the chief psychiatrist must direct the administrator of the person’s treating health service to arrange for an authorised psychiatrist to prepare a psychiatrist report about the person in relation to the charge of the serious offence.
(2)However, the chief psychiatrist may decide not to give the direction if a direction to prepare a psychiatrist report about the person in relation to the serious offence has been previously revoked under section 98 .
(3)The direction may include a direction for the report to be prepared about the person also in relation to an associated offence.
(4)If the chief psychiatrist does not give a direction under subsection (1), the chief psychiatrist must give the person making the request a written statement explaining the reasons for not giving the direction.

Part 3 Psychiatrist report on chief psychiatrist’s own initiative

92Application of pt 3

This part applies to a person charged with a serious offence, other than an offence against a law of the Commonwealth.

93Direction to prepare psychiatrist report

(1)The chief psychiatrist may, on the chief psychiatrist’s own initiative—
(a)direct the administrator of the person’s treating health service to arrange for an authorised psychiatrist to prepare a psychiatrist report about the person in relation to the charge of the serious offence; or
(b)direct an authorised psychiatrist to prepare a psychiatrist report about the person in relation to the charge of the serious offence.
(2)The chief psychiatrist may give the direction only if satisfied—
(a)the person may have a mental condition; and
(b)the person—
(i)may have been of unsound mind when the serious offence was allegedly committed; or
(ii)may be unfit for trial; and
(c)the preparation of the psychiatrist report is in the public interest.
(3)The direction may include a direction for the report to be prepared about the person also in relation to an associated offence.

94Notice of direction

(1)As soon as practicable after giving the direction, the chief psychiatrist must give the following persons written notice of the direction—
(a)the person;
(b)if an authorised mental health service is responsible for the person—the administrator of the service.
(2)A notice given to a person under subsection (1)(a) must include information about a support person accompanying the person for the examination under section 97 .

Part 4 Preparation of psychiatrist reports

Note—

See chapter 15 , part 2 for the suspension of criminal proceedings against a person in relation to whom a direction is given for a psychiatrist report to be prepared.

95Authorised psychiatrist must prepare psychiatrist report

(1)An authorised psychiatrist who is required under section 91 (1) or 93(1)(a), or directed under section 93 (1)(b), to prepare a psychiatrist report about a person in relation to a charge of a serious offence must prepare the report within 60 days after the requirement is made or the direction given.
(2)The chief psychiatrist may extend the period mentioned in subsection (1) to not more than 90 days after the requirement is made or the direction given.
(3)In preparing the psychiatrist report, the authorised psychiatrist must—
(a)examine the person; and
(b)obtain and consider health records for the person relevant to the examination of the person; and
(c)consider any information obtained under section 96 .
(4)Also, the authorised psychiatrist may obtain and consider any other information the authorised psychiatrist considers relevant to preparing the psychiatrist report.
(5)The psychiatrist report must include information about the following—
(a)the person’s mental state and, to the extent practicable, the person’s mental state when the serious offence was allegedly committed;
(b)whether the authorised psychiatrist considers the person was of unsound mind when the serious offence was allegedly committed;
(c)whether the authorised psychiatrist considers the person is fit for trial;
(d)if the authorised psychiatrist considers the person is unfit for trial—whether the authorised psychiatrist considers the unfitness for trial is permanent.
(6)Also, the psychiatrist report may include information about the matters mentioned in subsection (5) in relation to an associated offence.
(7)The authorised psychiatrist must give the chief psychiatrist a copy of the report as soon as practicable after it is prepared.

96Information from prosecuting authority

(1)This section applies if—
(a)an administrator of an authorised mental health service is directed under section 91 (1) or 93(1)(a) to arrange for the preparation of a psychiatrist report about a person in relation to a charge of a serious offence; or
(b)an authorised psychiatrist is required under section 91 (1) or 93(1)(a), or directed under section 93 (1)(b), to prepare a psychiatrist report about a person in relation to a charge of a serious offence.
(2)The administrator, authorised psychiatrist or chief psychiatrist may ask the prosecuting authority for the serious offence or associated offence to which the report relates to give the administrator or authorised psychiatrist copies of the documents mentioned in schedule 3 , definition brief of evidence, paragraph (a) relating to the offence.
(3)The prosecuting authority must comply with the request as soon as practicable.
(4)Subsection (2) does not apply to information contained in a document if the prosecuting authority considers—
(a)giving the information could reasonably be expected to—
(i)prejudice the investigation of a contravention or possible contravention of a law in a particular case; or
(ii)prejudice an investigation under the Coroners Act 2003 ; or
(iii)enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of a law, to be ascertained; or
(iv)endanger a person’s life, health or safety; or
(v)prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of a law; and
(b)it would not be in the public interest to give the information.
(5)Also, subsection (2) does not apply to information, contained in a document—
(a)that is sensitive evidence under the Criminal Code , section 590AF ; or
(b)that the prosecution would be prevented under another Act or law from giving to the accused person or a lawyer acting for the accused person during a proceeding for the offence; or
(c)identifying witnesses to the alleged commission of the offence; or
(d)consisting of contact details for witnesses to the alleged commission of the offence.
(6)The duty imposed on the prosecuting authority to comply with the request applies only to documents in the possession of the prosecuting authority or to which the prosecuting authority has access.
(7)In complying with the request, the prosecuting authority may delete from a copy of a document given to the administrator, authorised psychiatrist or chief psychiatrist any information mentioned in subsection (4) or (5).

Example—

If a document includes the name of a witness to the alleged commission of the offence, or information from which the witness could be identified, the prosecuting authority may delete the name or information from a copy of the document given to the administrator, authorised psychiatrist or chief psychiatrist.

s 96 amd 2017 No. 3s 9

97Support person

(1)A person being examined for a psychiatrist report may be accompanied by a support person, including, for example, a nominated support person, lawyer or personal guardian.
(2)A support person must not interfere with the examination.

98Person must participate in examination in good faith—report on request

(1)If a psychiatrist report about a person is being prepared on a request under section 90 , the person and any support person must participate in an examination for the psychiatrist report in good faith.

Examples of participating in an examination in good faith—

attending appointments in relation to the examination
answering questions during the examination
allowing access to the person’s health records
(2)If the authorised psychiatrist preparing the psychiatrist report is satisfied the person or support person is not participating in the examination in good faith, the authorised psychiatrist must give the administrator of the authorised mental health service who appointed the psychiatrist written notice of the psychiatrist’s belief.
(3)If the administrator receives a notice under subsection (2), the administrator may decide to revoke the direction to prepare the psychiatrist report.
(4)However, before revoking the direction, the administrator must—
(a)give the person the subject of the examination a written notice (a show cause notice) stating the following—
(i)that the administrator proposes to revoke the direction to prepare the psychiatrist report (the proposed action);
(ii)the grounds for the proposed action;
(iii)the facts and circumstances forming the basis for the grounds;
(iv)that the person may make submissions about the show cause notice to the administrator;
(v)a day and time within which submissions must be made; and
(b)consider any submissions given in response to the show cause notice.
(5)If the administrator revokes the direction, the administrator must give the following persons written notice of the revocation—
(a)the person the subject of the examination;
(b)the person who made the request under section 90 ;
(c)the chief psychiatrist.

99Person must attend examination—report on chief psychiatrist’s initiative

(1)If a psychiatrist report about a person is being prepared on the chief psychiatrist’s own initiative under section 93 , the person must attend for an examination.
(2)If the person is not an inpatient of an authorised mental health service, the chief psychiatrist must give the person a written notice directing the person to attend at a stated authorised mental health service within a stated period, of not more than 28 days, after the notice is given.

Note—

See chapter 11 , part 6 , division 3 for the powers that may be used in relation to a person who does not comply with a direction under subsection (2).

100Second psychiatrist report

(1)This section applies if the chief psychiatrist considers the matters in a psychiatrist report about a person in relation to a charge of a serious offence (the first psychiatrist report) require further examination, including, for example, because of the complexity of the matters in the report.
(2)The chief psychiatrist may—
(a)direct the administrator of the person’s treating health service to arrange for an authorised psychiatrist to prepare another psychiatrist report (a second psychiatrist report) about the person in relation to the charge of the serious offence; or
(b)direct an authorised psychiatrist to prepare a psychiatrist report (also a second psychiatrist report) about the person in relation to the charge of the serious offence.
(3)The direction to prepare the second psychiatrist report must be given within 7 days after the chief psychiatrist receives the first psychiatrist report.
(4)The direction to prepare the second psychiatrist report may include a direction for the second psychiatrist report to be prepared about the person also in relation to an associated offence.
(5)Sections 95 to 99 apply to the second psychiatrist report as if a reference in the sections to a psychiatrist report were a reference to the second psychiatrist report.

Part 5 References by chief psychiatrist

101Reference by chief psychiatrist to Mental Health Court

(1)This section applies if—
(a)a psychiatrist report, or second psychiatrist report, about a person in relation to a charge of a serious offence has been prepared; and
(b)the chief psychiatrist is satisfied—
(i)the person may have been of unsound mind when the serious offence was allegedly committed or may be unfit for trial; and
(ii)having regard to the report and the protection of the community, there is a compelling reason in the public interest for the person’s mental state in relation to the serious offence to be referred to the Mental Health Court; and
(c)the person’s mental state in relation to the serious offence has not been referred to the Mental Health Court under section 110 .
(2)The chief psychiatrist may, in the way set out in section 111 , refer the matter of the person’s mental state in relation to the serious offence to the Mental Health Court.
(3)The reference must be made—
(a)for a psychiatrist report prepared on a request under section 90 and if a second psychiatrist report is not directed under section 100 —within 28 days after a copy of the psychiatrist report is given to a person under section 102 (1) or (2); or
(b)for a psychiatrist report prepared on the chief psychiatrist’s own initiative under section 93 and if a second psychiatrist report is not directed under section 100 —within 28 days after the chief psychiatrist receives a copy of the psychiatrist report; or
(c)if a second psychiatrist report is prepared under section 100 —within 28 days after the chief psychiatrist receives a copy of the second psychiatrist report.
(4)The reference may include a reference of the person’s mental state in relation to an associated offence.
(5)The chief psychiatrist may, within the period mentioned in subsection (3), extend the period to not more than 4 months after the period would otherwise end if the chief psychiatrist considers the person is unfit for trial but may be fit for trial within the extended period.

s 101 amd 2017 No. 3s 10

Part 6 Miscellaneous

102Copies of reports

(1)The chief psychiatrist must give a copy of a psychiatrist report, or second psychiatrist report, about a person in relation to a charge of a serious offence to—
(a)the person; and
(b)the administrator of the person’s treating health service; and
(c)for a psychiatrist report prepared on a request under section 90 (the first psychiatrist report) or a second psychiatrist report relating to the first psychiatrist report—the person who made the request.
(2)However, for subsection (1)(a) or (c), if the chief psychiatrist is satisfied that giving a copy of a psychiatrist report, or second psychiatrist report, to the person the subject of the report may adversely affect the person’s health and wellbeing, the chief psychiatrist may instead give a copy of the report to another person who the chief psychiatrist considers has a sufficient interest in the person’s health and wellbeing.

Examples of a person who may have a sufficient interest in the person’s health and wellbeing—

the person’s nominated support person, a lawyer acting for the person, or the person’s personal guardian
(3)A psychiatrist report must be given under subsection (1)—
(a)if a second psychiatrist report is not directed—within 7 days after receiving the psychiatrist report; or
(b)if a second psychiatrist report is directed—within 7 days after receiving the second psychiatrist report.
(4)A second psychiatrist report must be given under subsection (1) within 7 days after receiving the second psychiatrist report.
(5)The administrator of the person’s treating health service must include the copy of the psychiatrist report, or second psychiatrist report, in the person’s health records.
(6)If the matter of the person’s mental state relating to the serious offence is referred to the Mental Health Court, the chief psychiatrist must give a copy of a psychiatrist report, or second psychiatrist report, about the person to the Mental Health Court.
(7)Subject to subsections (2) and (6), the chief psychiatrist must not give a copy of a psychiatrist report, or second psychiatrist report, to anyone else without the consent of—
(a)the person the subject of the report; or
(b)the personal guardian or attorney of the person the subject of the report, if giving the consent is within the guardian’s or attorney’s authority.

s 102 amd 2017 No. 3s 11

103Chapter stops applying to person if prosecution for offence discontinued

If action is taken under this chapter in relation to a person charged with a serious offence or associated offence and the prosecution of the person for the offence is discontinued, this chapter stops applying to the person in relation to the offence.

104Application of chapter to person with intellectual disability

If a person has, or may have, an intellectual disability, without limiting the application of this chapter to the person, the chapter also applies to the person as if—
(a)a reference to an authorised mental health service were a reference to the forensic disability service; and
(b)a reference to the chief psychiatrist were a reference to the director of forensic disability; and
(c)a reference to a psychiatrist report, or second psychiatrist report, were a reference to a report prepared by a senior practitioner appointed under the Forensic Disability Act after an assessment of the person; and
(d)a reference to the administrator of a person’s treating health service were a reference to the administrator of the forensic disability service; and
(e)a reference to an authorised psychiatrist were a reference to a senior practitioner under the Forensic Disability Act; and
(f)a reference in section 93 (2)(a) to the chief psychiatrist being satisfied that a person may have a mental condition were a reference to the director of forensic disability being satisfied that a person may have an intellectual disability; and
(g)a reference in section 99 (2) to an inpatient of an authorised mental health service were a reference to a forensic disability client who is subject to a forensic order (disability) that has a category of inpatient.

Chapter 5 Mental Health Court references

Note—

See chapter 16 , part 1 in relation to the procedure for proceedings in the Mental Health Court.

Part 1 Preliminary

105Purpose of ch 5

The purpose of this chapter is to provide for—
(a)the making of references to the Mental Health Court in relation to the mental state of persons charged with serious offences; and
(b)the hearing of references—
(i)made under chapter 4 , or this chapter, in relation to persons charged with serious offences; or
(ii)made under chapter 6 in relation to persons charged with indictable offences; and
(c)the decisions the court may make on a reference, including the making of a forensic order or treatment support order; and
(d)the admissibility and use of evidence, victim impact statements and other matters.

106Definitions for ch 5

In this chapter—

associated offence see section 107 .
diminished responsibility see section 108 .
offence, in relation to a reference, means each alleged offence mentioned in the notice of the reference filed under section 111 , 176 or 184.
reference, in relation to a person, means a reference to the Mental Health Court, made under section 101 , 110, 175 or 183, of the person’s mental state relating to an offence the person is alleged to have committed.
unsound mind see section 109 .

107Meaning of associated offence

An associated offence, in relation to an indictable offence with which a person is charged, means an offence, other than an offence against a law of the Commonwealth, that the person is alleged to have committed at or about the same time as the indictable offence.

108Meaning of diminished responsibility

A person is of diminished responsibility if the person has a state of abnormality of mind described in the Criminal Code , section 304A (1).

109Meaning of unsound mind

(1)Unsound mind means—
(a)a state of mental disease or natural mental infirmity described in the Criminal Code , section 27 (1); or
(b)a state of mind described in the Criminal Code , section 28 (1) for which the Criminal Code , section 27 (1) applies to a person.
(2)However, unsound mind does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.

Part 2 Making of references by particular persons

110When reference may be made

(1)This section applies if—
(a)a person is charged with a serious offence, other than an offence against a law of the Commonwealth; and
(b)a relevant person has reasonable cause to believe the person mentioned in paragraph (a)—
(i)was of unsound mind when the offence was allegedly committed; or
(ii)is unfit for trial.
(2)This section also applies if—
(a)a person is charged with the offence of murder; and
(b)a relevant person has reasonable cause to believe the person mentioned in paragraph (a) was of diminished responsibility when the offence was allegedly committed.
(3)The relevant person may, in the way set out in section 111 , refer the matter of the person’s mental state in relation to the serious offence to the Mental Health Court.
(4)A reference of a person’s mental state in relation to a serious offence may include a reference of the person’s mental state in relation to an associated offence.
(5)In this section—

relevant person, in relation to a person alleged to have committed an offence, means any of the following—
(a)the person;
(b)the person’s lawyer;
(c)the director of public prosecutions.

Note—

A reference in relation to a person may also be made by the following—

the chief psychiatrist or director of forensic disability under section 101
a Magistrates Court under section 175
the Supreme Court or District Court under section 183 .

111How reference is made

(1)A reference under section 110 in relation to a person is made by filing a notice of the reference in the approved form in the registry.
(2)The notice must state each offence in relation to which the person’s mental state is referred.
(3)The notice must be accompanied by a copy of any psychiatrist report or other clinical report in relation to the person that is relevant to the reference and in the possession of the person making the reference.

Example—

a psychiatrist report prepared under chapter 4
(4)Subsection (3) applies even if giving the copy of the report would disclose information adverse to the case of the person.
(5)The person who made the reference may amend it with the leave of the Mental Health Court.

Example of an amendment of the reference—

including another offence in the reference

Part 3 Proceedings for references

Note—

See chapter 15 , part 2 for the suspension of criminal proceedings against a person in relation to whom a reference is made to the Mental Health Court.

Division 1 Preliminary

112Application of pt 3

This part applies to a reference in relation to a person made under section 101 , 110, 175 or 183.

Division 2 Notice requirements etc.

113Notice of reference

(1)The registrar must, as soon as practicable after the reference is made, give each of the following persons written notice of the reference and of the suspension of the proceeding for the offence under chapter 15 , part 2
(a)the person the subject of the reference or, if known, the person’s lawyer;
(b)the director of public prosecutions;
(c)the chief psychiatrist;
(d)the chief executive (justice);
(e)the director of forensic disability;
(f)if the person the subject of the reference is a minor—the chief executive (youth justice);
(g)if known, any nominated support person, personal guardian or attorney for the person the subject of the reference.
(2)The chief executive (justice) must, as soon as practicable after receiving the notice mentioned in subsection (1), give both of the following persons written notice of the reference and of the suspension of the proceeding for the offence under chapter 15 , part 2
(a)the registrar of the court in which the proceeding for the offence has been brought;
(b)if the prosecuting authority for the offence is not the director of public prosecutions—the prosecuting authority for the offence.

s 113 amd 2016 No. 58s 10sch 1

114Parties to proceeding

(1)The parties to the proceeding for the reference are—
(a)the person the subject of the reference; and
(b)the director of public prosecutions; and
(c)the chief psychiatrist.
(2)If the person has an intellectual disability—
(a)the director of forensic disability may elect to be a party to the proceeding; and
(b)if the director of forensic disability makes an election under paragraph (a), the chief psychiatrist may elect not to be a party to the proceeding.
(3)An election made under subsection (2) by the director of forensic disability or the chief psychiatrist must be made by filing a notice in the registry.

115Notice of hearing

(1)The registrar must give each of the following persons written notice of the hearing of the proceeding for the reference—
(a)each party to the proceeding;
(b)if an authorised mental health service is responsible for the person the subject of the reference—the administrator of the service;
(c)if the forensic disability service is responsible for the person the subject of the reference—the administrator of the service;
(d)if the person the subject of the reference is in lawful custody—the person’s custodian.
(2)The registrar must give the notice at least 7 days before the hearing.
(3)The notice must state the following—
(a)the time and place of the hearing;
(b)the nature of the hearing;
(c)the rights at the hearing of the person the subject of the reference.

Division 3 Particular decisions

116Decision about unsoundness of mind and diminished responsibility

(1)On hearing the proceeding for the reference, the Mental Health Court must decide—
(a)whether the person was of unsound mind when the offence was allegedly committed; and
(b)if the person is alleged to have committed the offence of murder and the court decides the person was not of unsound mind when the offence was allegedly committed—whether the person was of diminished responsibility when the offence was allegedly committed.
(2)This section is subject to section 117 .

117Substantial dispute about whether person committed offence

(1)The Mental Health Court may not make a decision under section 116 (1)(a) or (b) if the court is satisfied there is a substantial dispute about whether the person committed the offence as particularised (the disputed offence).
(2)However, subsection (1) does not apply if the dispute exists only because of 1 or both of the following—
(a)the person’s mental condition;
(b)the operation of the Criminal Code , section 304 , 304A or 304B.
(3)If elements of the disputed offence are elements of another offence (the alternative offence) and there is not a substantial dispute about whether the person committed the alternative offence, subsection (1) does not prevent the court making a decision under section 116 (1)(a) for the alternative offence.
(4)If the court decides the person was of unsound mind when the alternative offence was committed, the proceeding against the person for the disputed offence is discontinued.
(5)In this section—
particularised, for an offence with which a person is charged, means particularised in the bench charge sheet, complaint, notice to appear or indictment containing the charge against the person.

118Decision about fitness for trial

(1)This section applies if—
(a)the Mental Health Court decides the person was not of unsound mind when the offence was allegedly committed; or
(b)because of section 117 , the court may not decide whether the person was of unsound mind when the offence was allegedly committed.
(2)The court must decide whether the person is fit for trial.
(3)If the court decides the person is unfit for trial, the court must also decide whether the unfitness for trial is permanent.
(4)This section does not apply if, under section 117 (4), the proceeding against the person for the offence is discontinued.

Division 4 Procedural provisions

119Unsound mind—discontinuance of proceeding

(1)If the Mental Health Court decides the person was of unsound mind when the offence was allegedly committed—
(a)the proceeding against the person for the offence is discontinued; and
(b)further proceedings may not be taken against the person for the act or omission constituting the offence.
(2)Despite the court’s decision, the person may elect to be tried for the offence.
(3)The election must be made by giving the director of public prosecutions written notice of the election within 28 days after the person receives written notice of the court’s decision.
(4)The director of public prosecutions must, within 7 days after receiving the notice of the person’s election, give written notice of the person’s election to—
(a)if an authorised mental health service is responsible for the person—the chief psychiatrist; or
(b)if the forensic disability service is responsible for the person—the director of forensic disability.
(5)If a forensic order or treatment support order is made for the person under part 4 , the order continues in force until a final decision is made in the proceeding against the person for the offence.
(6)The director of public prosecutions must ensure the proceeding against the person for the offence is continued according to law within 28 days after receiving the notice of the person’s election.

120Diminished responsibility—discontinuance of proceeding

(1)If the person was charged with the offence of murder and the Mental Health Court decides the person was of diminished responsibility when the offence was allegedly committed, the proceeding against the person for the offence of murder is discontinued.
(2)However, the proceeding may be continued against the person for another offence constituted by the act or omission to which the proceeding for the offence of murder relates.

121Temporary unfitness for trial—stay of proceeding

(1)This section applies if the Mental Health Court decides the person is unfit for trial and the unfitness for trial is not permanent.
(2)The proceeding for the offence is stayed until, on a review under chapter 12 , part 6 , the tribunal decides the person is fit for trial.

122Permanent unfitness for trial—discontinuance of proceeding

If the Mental Health Court decides the person is unfit for trial and the unfitness for trial is permanent—
(a)the proceeding against the person for the offence is discontinued; and
(b)further proceedings may not be taken against the person for the act or omission constituting the offence.

123Fit for trial—continuation of proceeding

If the Mental Health Court decides the person is fit for trial, the court must order that the proceeding against the person for the offence be continued according to law.

124Related orders if person fit for trial

(1)If the Mental Health Court orders that the proceeding against the person for the offence be continued, the court may order that—
(a)either—
(i)the person be remanded in custody and any bail granted under the Bail Act 1980 for the person be revoked; or
(ii)bail be granted, enlarged or varied under the Bail Act 1980 for the person; or
(b)the person be detained in a stated authorised mental health service until the person is—
(i)granted bail under the Bail Act 1980 ; or
(ii)brought before a court for continuing the proceeding.

Note—

An order made under paragraph (b) is a type of judicial order. A judicial order does not authorise the provision of involuntary treatment and care to the person.
(2)For subsection (1)(b), an authorised person may transport the person to—
(a)an inpatient unit of the authorised mental health service stated in the order; or
(b)for the continuation of the proceeding against the person for the offence—the court in which the proceeding is being heard.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5 .
(3)The administrator of the authorised mental health service stated in the order may detain the person in the service under the order.
(4)Also, subsection (5) applies if—
(a)the court has made an order under subsection (1)(b) for the person; and
(b)for continuing the proceeding against the person for the offence, the person appears before the court in which the proceeding is being heard by remote conferencing while remaining at the authorised mental health service stated in the order; and
(c)the court does not grant the person bail under the Bail Act 1980 .
(5)The administrator of the authorised mental health service may detain the person in the service until the person is taken into custody.

Division 5 Withdrawal of particular references

125Application of div 5

This division applies to a reference in relation to a person made under section 101 or 110.

126Application to withdraw reference

(1)At any time before the Mental Health Court decides the reference, the person who made the reference may apply to the court to withdraw the reference.
(2)The application must be made by—
(a)filing a notice in the approved form with the registrar; or
(b)making an oral submission at the hearing of the proceeding for the reference.

127Notices if application to withdraw filed

(1)The registrar must—
(a)within 7 days after the notice of the application to withdraw the reference is filed, give written notice of the application to the other parties to the proceeding; and
(b)at least 7 days before the hearing of the application, give the parties written notice of the hearing of the application.
(2)The notice of the hearing must state the following—
(a)the time and place of the hearing;
(b)the nature of the hearing;
(c)the parties’ rights to be represented at the hearing.

Note—

See section 683 in relation to representation at the hearing.

128Decision on application

(1)The Mental Health Court must grant the application or refuse to grant it.
(2)However, the court may refuse to grant the application only if it considers the withdrawal of the reference would be contrary to the interests of justice.

Part 4 Forensic orders and treatment support orders

Division 1 Preliminary

129Definition for pt 4

In this part—
relevant unlawful act, in relation to a reference, means the unlawful act or omission that constitutes the offence to which the reference relates.

130Explanation about operation of forensic orders and treatment support orders

(1)Under this part, the Mental Health Court may, on a reference in relation to a person, make the following types of orders—
(a)a forensic order (mental health) or forensic order (disability)—see division 2 ;
(b)a treatment support order—see division 3 .

Note—

See section 151 for the matters authorised under a forensic order (mental health) or treatment support order. See section 152 for the matters authorised under a forensic order (disability).
(2)A forensic order (mental health) operates in a way that is more restrictive of a person’s rights and liberties than a treatment support order.

Examples—

1The Mental Health Court may decide the category of a forensic order (mental health) is community only if the court considers there is not an unacceptable risk to the safety of the community.
2The court may decide the category of a treatment support order is inpatient only if the court considers the person’s treatment and care needs, the safety and welfare of the person, or the safety of others, can not reasonably be met if the category of the order is community.
3An authorised doctor may authorise treatment in the community for a person subject to a forensic order (mental health) only to the extent approved by the court or the tribunal.
4An authorised doctor may authorise treatment in the community for a person subject to a treatment support order, subject only to the court or the tribunal deciding whether the authorised doctor may reduce the extent of treatment in the community received by the person.
5Requirements imposed under a policy made by the chief psychiatrist may be more onerous for a person subject to a forensic order (mental health) than a person subject to a treatment support order.

131Orders if unsound mind or permanent unfitness for trial

(1)This section applies if, on a reference in relation to a person, the Mental Health Court decides the person—
(a)was of unsound mind when the offence was allegedly committed; or
(b)is unfit for trial and the unfitness for trial is permanent.
(2)The court must make the order required under division 2 or 3 for the person.
(3)However, if the court is not required under division 2 or 3 to make an order for the person, the court may make no order for the person.

132Orders if temporary unfitness for trial

(1)This section applies if, on a reference in relation to a person, the Mental Health Court decides the person is unfit for trial and the unfitness for trial is not permanent.
(2)The court must make an order for the person under division 2 or 3.

133Matters to which Mental Health Court must have regard

(1)In making a decision under this part in relation to an order for a person, the Mental Health Court must have regard to the following—
(a)the relevant circumstances of the person;
(b)the nature of the offence to which the reference relates and the period of time that has passed since the offence was allegedly committed;
(c)any victim impact statement produced by the prosecuting authority for the offence under part 5 , division 3 .

Examples of decisions under this part in relation to an order—

deciding whether a forensic order or treatment support order is necessary
deciding the category of the order
deciding whether the person is to receive any treatment in the community
deciding the conditions, if any, to impose on the order
(2)Subsection (1) does not limit any other provision of this part that requires the court to have regard to a stated matter.

Division 2 Forensic orders

Subdivision 1 Making of forensic orders

134Requirements for making forensic order

(1)The Mental Health Court must make an order (a forensic order (mental health) or forensic order (disability)) for the person if the court considers a forensic order is necessary, because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property.

Note—

If the court does not consider a forensic order is necessary, see division 3 in relation to the making of a treatment support order.
(2)In deciding whether a forensic order is necessary, the court must have regard to the policies mentioned in section 305 (1)(e) and (f).
(3)If the court makes a forensic order for the person, the order must be—
(a)a forensic order (mental health) if the court considers—
(i)the person’s unsoundness of mind was, or unfitness for trial is, because of a mental condition other than an intellectual disability; or
(ii)the person has a dual disability and needs involuntary treatment and care for the person’s mental illness, as well as care for the person’s intellectual disability; or
(b)a forensic order (disability) if the court considers—
(i)the person’s unsoundness of mind was, or unfitness for trial is, because of an intellectual disability; and
(ii)the person needs care for the person’s intellectual disability but does not need treatment and care for any mental illness.
(4)Subsection (3)(a)(ii) applies regardless of the basis on which the court decides the person was of unsound mind when the offence was allegedly committed, or is unfit for trial.

135Conditions

(1)The Mental Health Court may, in a forensic order for a person, impose the conditions it considers appropriate.
(2)Without limiting subsection (1), the court may impose a condition that the person must not contact a stated person, including, for example, a victim of the relevant unlawful act.
(3)However, the court may not impose a condition requiring the person to take a particular medication or a particular dosage of a medication.

136Recommendations about intervention programs

The Mental Health Court may, in a forensic order for a person, make the recommendations it considers appropriate about particular intervention programs that a stated authorised mental health service or the forensic disability service should provide for the person.

Examples of intervention programs—

drug and alcohol programs, anger management counselling programs, sexual offender programs

137Non-revocation period

(1)This section applies if, on a reference in relation to a person charged with a prescribed offence, the Mental Health Court—
(a)decides the person—
(i)was of unsound mind when the offence was allegedly committed; or
(ii)is unfit for trial and the unfitness for trial is permanent; and
(b)makes a forensic order for the person.
(2)The court may state in the order a period of not more than 10 years (the non-revocation period) during which the tribunal may not revoke the order, other than under section 457 .
(3)In deciding the non-revocation period, the court must have regard to the object of this Act in relation to protecting the community.

Subdivision 2 Treatment in the community

138Mental Health Court to decide category

(1)If the Mental Health Court decides to make a forensic order for a person, the court must also decide the category of the order.
(2)The court may decide the category of the order is community only if the court considers there is not an unacceptable risk to the safety of the community, because of the person’s mental condition, including the risk of serious harm to other persons or property.
(3)The forensic order must state the category of the order.

139Inpatient category

(1)If the Mental Health Court decides the category of a forensic order for a person is inpatient, the court must do 1 of the following—
(a)order that the person have no limited community treatment;

Note—

An order made under paragraph (a) may be amended by the tribunal, but may not be amended by an authorised doctor. See sections 212 (2) and 445(2)(b) and (c).
(b)approve that an authorised doctor under section 212 or a senior practitioner under the Forensic Disability Act, section 20 may, at a future time—
(i)authorise limited community treatment for the person, to the extent and subject to the conditions decided by the court; or
(ii)change the category of the order to community, subject to the conditions decided by the court;
(c)order that the person have limited community treatment—
(i)of a stated extent; and
(ii)subject to the conditions decided by the court, including whether, or the extent to which, an authorised doctor under section 212 or a senior practitioner under the Forensic Disability Act, section 20 may amend the forensic order in relation to treatment in the community.
(2)The court may make an order under subsection (1)(b) or (c) only if the court is satisfied there is not an unacceptable risk to the safety of the community, because of the person’s mental condition, including the risk of serious harm to other persons or property.
(3)In deciding whether the court is satisfied of the matters mentioned in subsection (2), the court must have regard to—
(a)the purpose of limited community treatment; and
(b)the fact that—
(i)if an authorised mental health service is responsible for the person—an authorised doctor may increase the extent of treatment in the community for the person only if satisfied of the matters mentioned in section 212 (3); or
(ii)if the forensic disability service is responsible for the person—a senior practitioner under the Forensic Disability Act may authorise treatment in the community for the person only if satisfied of the matters mentioned in the Forensic Disability Act, section 20(2).

140Community category

If the Mental Health Court decides the category of a forensic order for a person is community, the court must—
(a)order that an authorised doctor or a senior practitioner under the Forensic Disability Act must not change the category of the order to inpatient; or

Note—

The category of the order may be changed by the tribunal. See section 444 .
(b)approve that an authorised doctor under section 212 or a senior practitioner under the Forensic Disability Act, section 20 may, at a future time, change the nature or extent of treatment in the community received by the person, to the extent and subject to the conditions decided by the court.

Example of a change of the nature or extent of treatment in the community—

changing the category of the forensic order from community to inpatient, with or without limited community treatment

Subdivision 3 Other provisions

141When category of forensic order (disability) may be described as residential

(1)This section applies to a forensic order (disability) for a person if—
(a)the category of the order is inpatient; and
(b)the forensic disability service is responsible for the person.
(2)The category of the order may be described as residential.

142Admission to high security unit—stay of order

(1)This section applies if—
(a)the Mental Health Court makes a forensic order for a person; and
(b)under the order, the person is to be detained in a high security unit; and
(c)the chief psychiatrist asks the court to stay the order for a period of not more than 7 days to enable the high security unit to make a physical place available for the person.
(2)The court may stay the order for the period requested by the chief psychiatrist.
(3)However, if the court is satisfied the person needs urgent treatment and care in the high security unit, the court may—
(a)refuse to stay the order; or
(b)stay the order for a shorter period than requested.
(4)If the court stays the order and the person is being held in custody, the person must remain in custody until the person is admitted to the high security unit.

Division 3 Treatment support orders

Subdivision 1 Making of treatment support orders

143Requirements for making treatment support order

(1)The Mental Health Court must make an order (a treatment support order) for the person if the court considers a treatment support order, but not a forensic order, is necessary, because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property.
(2)In deciding whether a treatment support order, but not a forensic order, is necessary, the court must have regard to the policy that must be made by the chief psychiatrist under section 305 (1)(g) in relation to persons subject to treatment support orders.
(3)This section does not apply if the court considers—
(a)the person’s unsoundness of mind was, or unfitness for trial is, because of an intellectual disability; and
(b)the person does not need treatment and care for any mental illness.

144Conditions

(1)The Mental Health Court may, in a treatment support order for a person, impose the conditions it considers appropriate.
(2)Without limiting subsection (1), the court may impose a condition that the person must not contact a stated person, including, for example, a victim of the relevant unlawful act.
(3)However, the court may not impose a condition requiring the person to take a particular medication or a particular dosage of a medication.

Subdivision 2 Treatment in the community

145Mental Health Court to decide category and community treatment

(1)If the Mental Health Court decides to make a treatment support order for a person, the court must also decide the category of the order.
(2)However, the court may decide the category of the treatment support order is inpatient only if the court considers 1 or more of the following can not reasonably be met if the category of the order is community—
(a)the person’s treatment and care needs;
(b)the safety and welfare of the person;
(c)the safety of others.
(3)If the court decides the category of the treatment support order is inpatient, the court may approve limited community treatment for the person, to the extent and subject to the conditions decided by the court.
(4)In deciding whether to approve limited community treatment under subsection (3), the court must have regard to the purpose of limited community treatment.
(5)If the court decides the category of the treatment support order is community, or approves limited community treatment for the person under subsection (3), the court must also decide whether an authorised doctor may, under section 216 (1), amend the person’s treatment support order to reduce the extent of treatment in the community received by the person.

Notes—

1On a review of the order, the tribunal may change the nature or extent of the person’s treatment in the community. See sections 475 and 476.
2For the powers of an authorised doctor in relation to a treatment support order, see section 216 .
(6)The treatment support order must state the category of the order.

Division 4 Responsibility for treatment and care

146Responsibility for person subject to forensic order (mental health) or treatment support order

(1)If the Mental Health Court makes a forensic order (mental health) or treatment support order for a person, the order must state the authorised mental health service responsible for the person.
(2)The stated authorised mental health service is responsible for the person.
(3)Subsection (2) does not prevent treatment and care being provided to the person by another authorised mental health service if the person seeks treatment and care by the service.
(4)This section is subject to section 356 .

147Responsibility for person subject to forensic order (disability)

(1)If the Mental Health Court makes a forensic order (disability) for a person, the order must state—
(a)the authorised mental health service responsible for the person; or
(b)that the forensic disability service is responsible for the person.
(2)However, the court may decide the forensic disability service is responsible for the person only if the chief executive (forensic disability) certifies, in writing, that the forensic disability service has the required capacity.
(3)If the court makes an order under subsection (1)(a), the stated authorised mental health service is responsible for the person.
(4)If the court makes an order under subsection (1)(b), the forensic disability service is responsible for the person.
(5)Subsection (3) does not prevent treatment and care being provided to the person by another authorised mental health service if the person seeks treatment and care by the service.
(6)Subsection (4) does not prevent treatment and care being provided to the person by an authorised mental health service if the person seeks treatment and care by the service.
(7)This section is subject to section 356 .
(8)In this section—

required capacity means—
(a)the physical capacity to accommodate the person; and
(b)the capacity to provide care for the person under the order.

148Certificate of forensic disability service availability

(1)This section applies for the purpose of the Mental Health Court deciding under section 147 whether the forensic disability service will be responsible for the person.
(2)The court may ask the director of forensic disability to give the court a certificate prepared by the chief executive (forensic disability) stating whether or not the forensic disability service has the required capacity within the meaning of section 147 .
(3)If asked by the director of forensic disability to prepare a certificate mentioned in subsection (2), the chief executive (forensic disability) must prepare, and give the director, the certificate.
(4)If the court makes a request under subsection (2), the director of forensic disability must give the court the certificate within—
(a)7 days after receiving the request; or
(b)any longer period allowed by the court.

Division 5 Transport

149Transport to authorised mental health service

(1)This section applies if—
(a)the Mental Health Court makes a forensic order or treatment support order for a person and the category of the order is inpatient; and
(b)an authorised mental health service is responsible for the person under the order.
(2)An authorised person may transport the person to the authorised mental health service.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5 .

150Transport to forensic disability service

(1)This section applies if—
(a)the Mental Health Court makes a forensic order (disability) for a person and the category of the order is inpatient; and
(b)the forensic disability service is responsible for the person under the order.
(2)An authorised person, or an authorised practitioner under the Forensic Disability Act, may transport the person to the forensic disability service.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5 .

Division 6 Other provisions

151Matters authorised by forensic order (mental health) or treatment support order

(1)A forensic order (mental health), or treatment support order, for a person authorises each of the following in accordance with the order—
(a)if the person has a mental condition other than an intellectual disability—the provision of involuntary treatment and care for the person’s mental illness or other mental condition;
(b)if the person has a dual disability—
(i)the provision of involuntary treatment and care for the person’s mental illness; and
(ii)the provision of involuntary care for the person’s intellectual disability;
(c)if the category of the order is inpatient—the detention of the person in the authorised mental health service that is responsible for the person.
(2)The person responsible for the treatment and care must ensure the order is given effect.

Note—

See section 15 for the person responsible for the treatment and care of a person subject to a forensic order (mental health) or treatment support order.

152Matters authorised by forensic orders (disability)

(1)A forensic order (disability) for a person authorises each of the following in accordance with the order—
(a)the provision of involuntary care for the person’s intellectual disability;
(b)if the category of the order is inpatient, the person’s detention in—
(i)if an authorised mental health service is responsible for the person—the authorised mental health service; or
(ii)if the forensic disability service is responsible for the person—the forensic disability service.
(2)The person responsible for the care must ensure the order is given effect.

Note—

See section 15 for the person responsible for the care of a person subject to a forensic order (disability).

153Status of forensic order or treatment support order if amended

(1)A forensic order or treatment support order made under this part has effect subject to any amendment of the order—
(a)by the tribunal under chapter 12 ; or
(b)by an authorised doctor under section 212 or 216.
(2)The order, as amended, continues as an order of the Mental Health Court.

154Ending of order made because of temporary unfitness for trial

(1)This section applies to any of the following orders to which a person is subject—
(a)a forensic order (mental health), forensic order (disability) or treatment support order made because the Mental Health Court decides the person is unfit for trial and the unfitness for trial is not permanent;
(b)if the tribunal revokes a forensic order (mental health) mentioned in paragraph (a) and makes a forensic order (disability) for the person under section 457 —the forensic order (disability);
(c)if the tribunal revokes a forensic order (mental health) mentioned in paragraph (a) and makes a treatment support order for the person under section 450 —the treatment support order.
(2)The order ends if the proceeding against the person for the offence to which the reference relates is discontinued other than under section 490 or 491.

Notes—

1See section 493 in relation to the discontinuance of the proceeding other than under section 490 or 491.
2Also, if the tribunal decides on a review under chapter 12 , part 6 that the person is fit for trial, the order ends under section 497 (2).

Part 5 Other provisions

Division 1 Notice of decisions and orders

155Notice of decisions and orders

(1)The registrar must, within 7 days after the Mental Health Court makes its decision on a reference, give the following persons written notice of the court’s decision, and any orders made by the court—
(a)each person who was entitled to be given notice of the reference under section 113 (1);
(b)the tribunal.
(2)Also, if a victim impact statement was given to the court on the hearing of the reference, the registrar must give the tribunal a copy of the statement.
(3)The chief executive (justice) must, as soon as practicable after receiving the notice mentioned in subsection (1), give each of the following persons written notice of the court’s decision—
(a)the registrar of the court in which the proceeding for the offence has been brought;
(b)if the prosecuting authority for the offence is not the director of public prosecutions—the prosecuting authority for the offence.

Division 2 Admissibility and use of evidence

156Definition for div 2

In this division—
expert’s report includes a clinical record relevant to a person’s mental condition.

157Admissibility of expert’s report at trial

An expert’s report received in evidence by the Mental Health Court on a reference is admissible at the trial of the person for the offence in relation to the reference only for the following purposes—
(a)deciding whether—
(i)for the application of the Criminal Code , section 613 , the person is not capable of understanding the proceedings; or
(ii)for the application of the Criminal Code , section 645 , the person is not of sound mind; or
(iii)the person was of unsound mind or diminished responsibility when the offence was allegedly committed; or
(iv)the person should be admitted to an authorised mental health service under a forensic order (Criminal Code);
(b)sentencing the person.

158Particular statements not admissible

(1)A statement made by the person the subject of a reference at the hearing of the reference is not admissible in evidence in any civil or criminal proceeding against the person.
(2)Subsection (1) applies to statements made orally or in writing and whether on oath or otherwise.
(3)However, subsection (1) does not apply to a proceeding for—
(a)contempt of the Mental Health Court; or
(b)an offence against the Criminal Code , chapter 16.

159Issue of mental condition may be raised at trial

(1)A decision by the Mental Health Court on a reference in relation to a person does not prevent the person raising the issue of the person’s mental condition at the person’s trial for the offence.
(2)If the issue of the person’s mental condition is raised at the person’s trial, the Mental Health Court’s decision is admissible for sentencing, but is not otherwise admissible at the trial.

160Other use of expert’s report

(1)An expert’s report received in evidence by the Mental Health Court on a reference in relation to a person may be given to—
(a)if an authorised mental health service is responsible for the person—the administrator of the service; or
(b)if the forensic disability service is responsible for the person—the administrator of the service; or
(c)the tribunal for conducting a review.
(2)The report may be given to, and used by, another person only with the leave of the court.
(3)The court may grant the leave subject to the conditions it considers appropriate.

Division 3 Victim impact statements

161Application of div 3

This division applies if, on a reference in relation to a person, the Mental Health Court decides the person—
(a)was of unsound mind when the offence was allegedly committed; or
(b)is unfit for trial.

162Preparation of victim impact statement

(1)A victim of the relevant unlawful act, or a close relative of the victim, may prepare, and give the prosecuting authority for the relevant unlawful act, a victim impact statement in relation to the relevant unlawful act, for the purpose of the prosecuting authority producing the statement to the Mental Health Court.
(2)The victim impact statement may include—
(a)the views of the victim or close relative about the risk the person the subject of the reference represents to the victim or close relative or another person; and
(b)a request by the victim or close relative that the Mental Health Court impose, in any forensic order or treatment support order made for the person the subject of the reference, a condition that the person must not contact—
(i)the victim or close relative; or
(ii)another individual, including, for example, another close relative of the victim.

163Production of victim impact statement by prosecuting authority

If a victim of the relevant unlawful act, or a close relative of the victim, gives the prosecuting authority a victim impact statement, the prosecuting authority must give the statement to the Mental Health Court.

164Restrictions on disclosing victim impact statement

(1)The Mental Health Court must not disclose the victim impact statement to the person the subject of the reference unless the victim or close relative asks that the statement be disclosed to the person.
(2)Despite a request mentioned in subsection (1), the court may, by order, prohibit the disclosure of the victim impact statement to the person if satisfied the disclosure may adversely affect the health and wellbeing of the person.
(3)A person must not contravene an order made under subsection (2) unless the person has a reasonable excuse.

Maximum penalty—200 penalty units.

(4)This section does not prevent the court disclosing the victim impact statement to a lawyer of the person the subject of the reference if satisfied the disclosure is in the best interests of the person.
(5)Subject to subsection (3), the person’s lawyer may disclose the victim impact statement to the person only if the victim or close relative asks that the statement be disclosed to the person.
(6)The person’s lawyer must not disclose the victim impact statement to the person in contravention of subsection (5) unless the lawyer has a reasonable excuse.

Maximum penalty—200 penalty units.

(7)In this section—
lawyer, of a person, includes another representative of the person.

165Use of victim impact statement by Mental Health Court

(1)This section applies if the Mental Health Court is required to have regard to a victim impact statement in deciding a matter under part 4 .
(2)The court may place the weight on the victim impact statement it considers appropriate.

Division 4 Persons subject to existing orders or authorities

166Person subject to existing forensic order

(1)This section applies if the Mental Health Court is required under this chapter to make a forensic order (a new forensic order) for a person who is already subject to a forensic order (the existing forensic order).
(2)The court may—
(a)amend the existing forensic order for the person; or
(b)revoke the existing forensic order for the person and make a new forensic order for the person.

Note—

If there is an information notice relating to the person, the revocation of the existing forensic order under this section does not affect the information notice. See section 322 .

167Person subject to existing treatment authority or treatment support order

(1)This section applies if the Mental Health Court makes a forensic order (mental health) for a person who is subject to a treatment authority or treatment support order.
(2)On the making of the forensic order (mental health), the treatment authority or treatment support order ends.
(3)Nothing in this section prevents the court making a forensic order (disability) for a person who is subject to a treatment authority.
(4)If a treatment authority for a person is inconsistent with a forensic order (disability) for the person, the forensic order (disability) prevails to the extent of the inconsistency.

167A Person subject to existing treatment support order

(1)This section applies if the Mental Health Court is required under this chapter to make a treatment support order (a new treatment support order) for a person who is already subject to a treatment support order (the existing treatment support order).
(2)The court may—
(a)amend the existing treatment support order for the person; or
(b)revoke the existing treatment support order for the person and make a new treatment support order for the person.

Note—

If there is an information notice relating to the person, the revocation of the existing treatment support order under this section does not affect the information notice. See section 322 .

s 167A ins 2017 No. 3s 12

Division 5 Miscellaneous

168Relationship with ch 16 , pt 1

To the extent of any inconsistency with chapter 16 , part 1 , this chapter prevails.

Chapter 6 Powers of courts hearing criminal proceedings and related processes

Part 1 Preliminary

169Purpose of ch 6

The purpose of this chapter is to provide for appropriate powers and processes for courts hearing criminal proceedings and for related matters, including—
(a)powers for Magistrates Courts, the District Court and the Supreme Court to deal with cases where there is a concern about the mental state of a person charged with an offence, including by making a reference to the Mental Health Court; and
(b)the admission of persons subject to forensic orders (Criminal Code) to authorised mental health services; and
(c)the detention of persons in authorised mental health services during trial.

170Childrens Court

In this chapter, a reference to a Magistrates Court, in relation to a person charged with an offence, is taken to include a reference to the Childrens Court if the person charged with the offence is being dealt with under the Youth Justice Act 1992 .

Note—

See the Youth Justice Act 1992 , section 63 in relation to the powers and jurisdiction of the District Court in its criminal jurisdiction conferred on a Childrens Court judge.

Part 2 Magistrates Courts

Division 1 General

171Definition for div 1

In this division—
simple offence see the Justices Act 1886 , section 4 .

172Power to dismiss complaint—unsound mind or unfitness for trial

(1)This section applies if—
(a)a complaint for a simple offence is to be heard and determined by a Magistrates Court; and
(b)the court is reasonably satisfied, on the balance of probabilities, that the person charged with the offence—
(i)was, or appears to have been, of unsound mind when the offence was allegedly committed; or
(ii)is unfit for trial.
(2)The court may dismiss the complaint.

Note—

See the Justices Act 1886 , section 222 in relation to appeals to a District Court judge from an order made in a summary way on a complaint for an offence.

173Power to adjourn hearing of complaint—temporary unfitness for trial

(1)This section applies if—
(a)a complaint for a simple offence is to be heard and determined by a Magistrates Court; and
(b)the court is reasonably satisfied, on the balance of probabilities, that the person charged with the offence—
(i)is unfit for trial; but
(ii)is likely to become fit for trial within 6 months.
(2)The court may adjourn the hearing of the complaint.
(3)However, if the court is reasonably satisfied, on the balance of probabilities, that the person is still unfit for trial 6 months after the hearing of the complaint was adjourned, the court may dismiss the complaint under section 172 (2).
(4)This section does not limit the court’s power under section 172 .

174Power to refer person to appropriate agency or entity

(1)This section applies if a Magistrates Court—
(a)has dismissed a complaint under section 172 or adjourned the hearing of a complaint under section 173 ; and
(b)is reasonably satisfied the person charged with the offence does not appear to have a mental illness.
(2)The court may refer the person to—
(a)a relevant agency for appropriate care; or
(b)the health department or another entity the court considers appropriate for treatment and care.
(3)In this section—
health department means the department in which the Hospital and Health Boards Act 2011 is administered.

relevant agency means—

(a)the department in which the Disability Services Act 2006 is administered; or
(b)the National Disability Insurance Scheme Launch Transition Agency established under the National Disability Insurance Scheme Act 2013 (Cwlth).

Division 2 References to Mental Health Court

175When reference may be made

(1)This section applies if, in a proceeding before a Magistrates Court against a person charged with an indictable offence other than an offence against a law of the Commonwealth, the court is reasonably satisfied, on the balance of probabilities, that—
(a)the person—
(i)was, or appears to have been, of unsound mind when the offence was allegedly committed; or
(ii)is unfit for trial; and
(b)both of the following apply—
(i)the nature and circumstances of the offence create an exceptional circumstance in relation to the protection of the community;
(ii)the making of a forensic order or treatment support order for the person may be justified.
(2)The court may, in the way set out in section 176 , refer to the Mental Health Court the matter of the person’s mental state relating to—
(a)the indictable offence; and
(b)an associated offence.

176How reference is made

(1)The registrar of a Magistrates Court that makes a reference under section 175 in relation to a person must file a notice of the reference in the approved form in the Mental Health Court Registry.
(2)The notice must state each offence in relation to which the person’s mental state is referred.
(3)The notice must be accompanied by a copy of any report produced to the court relating to the person’s mental state.

Division 3 Examination orders

177Power to make examination order for person charged with simple offence

(1)This section applies if—
(a)a Magistrates Court—
(i)has dismissed a complaint under section 172 or adjourned the hearing of a complaint under section 173 ; or
(ii)is reasonably satisfied that a person charged with a simple offence would benefit from an examination by an authorised doctor; and
(b)the court—
(i)is reasonably satisfied the person has a mental illness; or
(ii)is unable to decide whether the person has a mental illness or another mental condition.
(2)The court may make an order (an examination order) in relation to the person.

Note—

An examination order is a type of judicial order. A judicial order does not authorise the provision of involuntary treatment and care to the person.
(3)Also, if the complaint has not been dismissed under section 172 and the hearing of the complaint has not been adjourned under section 173 , the court may adjourn the hearing of the complaint.
(4)The examination order authorises an authorised doctor for the authorised mental health service or public sector health service facility stated in the order to examine the person, without the person’s consent, to decide whether to—
(a)make a treatment authority for the person; or
(b)make a recommendation for the person’s treatment and care; or
(c)if the person is already subject to a treatment authority, forensic order (mental health), forensic order (disability) or treatment support order—change the nature and extent of the treatment and care to be provided to the person under the authority or order.
(5)Also, the examination order may—
(a)direct an authorised person to transport the person immediately to the authorised mental health service; or

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.
(b)direct the person to attend at the authorised mental health service or public sector health service facility within a stated time, of not more than 28 days, after the order is made.

Note—

See chapter 11 , part 6 , division 3 for the powers that may be used in relation to a person who does not comply with a direction under paragraph (b).
(6)The registrar of the court must, as soon as practicable after the examination order is made, give written notice of the order to—
(a)if an authorised mental health service is stated in the order—the administrator of the service; or
(b)if a public sector health service facility is stated in the order—the person in charge of the facility.

s 177 amd 2017 No. 3s 13

178Examination of person

(1)For the purpose of examining the person, the person may be detained in the relevant service for a period (the examination period) of not more than 6 hours starting—
(a)if the person is at the relevant service when the examination order is made—when the order is made; or
(b)if the person is transported to the relevant service under the examination order—when the person first arrives at the relevant service for the examination; or
(c)if the person attends at the relevant service under the order—when the person first attends at the service under the order.
(2)However, an authorised doctor or authorised mental health practitioner may extend, or further extend, the examination period before it ends to not more than 12 hours after it starts if the authorised doctor or authorised mental health practitioner reasonably believes the extension is necessary to carry out or finish the examination of the person.
(3)The authorised doctor who examines the person may—
(a)make a treatment authority for the person; or
(b)make a recommendation for the person’s treatment and care; or
(c)decide the person does not require treatment and care; or
(d)if the person is already subject to a treatment authority, forensic order (mental health), forensic order (disability) or treatment support order—change the nature and extent of the treatment and care to be provided to the person under the authority or order.
(4)For subsection (3)(a), section 48 applies as if a reference in the section to the assessment of a person under chapter 2 , part 3 were a reference to the examination of the person under an examination order.
(5)If the authorised doctor makes a recommendation under subsection (3)(b) for the person’s treatment and care, the authorised doctor must explain to the person the benefits of being treated voluntarily in accordance with the recommendation.

Note—

See section 55 for the matters the authorised doctor must tell, and explain to, the person if the authorised doctor makes a treatment authority for the person as mentioned in subsection (3)(a).
(6)In this section—
relevant service means the authorised mental health service or public sector health service facility stated in the examination order.

s 178 amd 2017 No. 3s 14

179Examination report

The authorised doctor must prepare a report (an examination report) stating each of the following—
(a)details of the examination carried out under the examination order;
(b)the recommendation or decision made under section 178 (3);
(c)if the authorised doctor makes a recommendation under section 178 (3)(b) for the person’s treatment and care—details of the explanation given to the person of the benefits of being treated voluntarily in accordance with the recommendation.

180Admissibility of examination report at trial

An examination report is admissible at the trial of the person for an offence only for the following purposes—
(a)deciding under this Act whether to make another examination order for the person;
(b)deciding under this Act whether to refer to the Mental Health Court the matter of the person’s mental state relating to the offence.

s 180 sub 2017 No. 3s 15

180A Particular statements not admissible

(1)Neither of the following is admissible in evidence against the person in any civil or criminal proceeding—
(a)a statement made by the person during an examination of the person under an examination order;
(b)a statement made by the person to a health practitioner for the purpose of a Magistrates Court making a decision about the person under section 172 or 173.
(2)Subsection (1) applies to statements made orally or in writing and whether on oath or otherwise.
(3)However, subsection (1) does not apply to a proceeding for—
(a)contempt of the court; or
(b)an offence against the Criminal Code , chapter 16.

s 180A ins 2017 No. 3s 15

180B Other use of examination report and particular statements

(1)This section applies to each of the following relating to a person—
(a)an examination report made for the person;
(b)a statement made by the person to a health practitioner for the purpose of a Magistrates Court making a decision about the person under section 172 or 173.
(2)The report or statement may be given to—
(a)if an authorised mental health service is responsible for the person—the administrator of the service; or
(b)if the forensic disability service is responsible for the person—the administrator of the service.
(3)If the report or statement is received in evidence by a Magistrates Court, the report or statement may be given to, and used by, another person only with the leave of the court.
(4)The court may grant the leave subject to the conditions it considers appropriate.
(5)An administrator who receives a report or statement under subsection (2) must include the report or statement in the person’s health records.

s 180B ins 2017 No. 3s 15

Part 3 Supreme Court and District Court

Division 1 Making reference to Mental Health Court if person pleads guilty to indictable offence

181Application of div 1

(1)This division applies if—
(a)a person appears before the Supreme Court or District Court in a relevant proceeding for a charge of an indictable offence, other than an offence against a law of the Commonwealth; and
(b)the court is reasonably satisfied, on the balance of probabilities, that the person—
(i)was, or appears to have been, of unsound mind when the offence was allegedly committed; or
(ii)for the offence of murder—was, or appears to have been, of diminished responsibility when the offence was allegedly committed; or
(iii)is unfit for trial.
(2)In this section—
relevant proceeding, for a person charged with an indictable offence, means—
(a)if the person pleads guilty to the charge at the person’s trial—the person’s trial; or
(b)if the person has pleaded guilty to the charge before a court and has been committed by the court for sentence—the person’s appearance for sentence.

182Power to order plea of not guilty

The court may order that a plea of not guilty be entered for the person for—
(a)the indictable offence with which the person is charged; and
(b)if, under the Criminal Code , section 651 , a charge of a summary offence laid against the person is to be heard and decided by the court—the summary offence.

183Power to make reference to Mental Health Court and related orders

On the making of the order under section 182 , the court must—
(a)adjourn the trial; and
(b)in the way set out in section 184 , refer to the Mental Health Court the matter of the person’s mental state relating to—
(i)the indictable offence with which the person is charged; and
(ii)any summary offence mentioned in section 182 (b) that is an associated offence; and
(c)order that—
(i)either—
(A)the person be remanded in custody and any bail granted under the Bail Act 1980 for the person be revoked; or
(B)bail be granted, enlarged or varied under the Bail Act 1980 for the person; or
(ii)if a written agreement has been given under this division for the person’s detention in an authorised mental health service—the person be detained in an inpatient unit of the service.

Note—

An order made under subparagraph (ii) is a type of judicial order. A judicial order does not authorise the provision of involuntary treatment and care to the person.

184How reference to Mental Health Court is made

(1)The registrar of the court that made the reference under section 183 (b) must file a notice of the reference in the approved form in the Mental Health Court Registry.
(2)The notice must state each offence in relation to which the person’s mental state is referred.
(3)The notice must be accompanied by a copy of any report produced to the court relating to the person’s mental state.

185Persons who may give agreement for detention

An agreement for the person’s detention in an authorised mental health service may be given by—
(a)the administrator of the service; or
(b)the chief psychiatrist.

186Agreement for detention—administrator

(1)The administrator of an authorised mental health service may agree to a person’s detention in the service only if the administrator is satisfied the service has the capacity to detain the person for treatment and care.
(2)Without limiting subsection (1), if the authorised mental health service is not a high security unit, the administrator must be satisfied the person’s detention in the service does not present an unreasonable risk to the safety of the person or others having regard to the following—
(a)the person’s mental state and psychiatric history;
(b)the person’s treatment and care needs;
(c)the security requirements for the person.
(3)If the person is a minor, the administrator of the service must not agree under this division to the minor’s detention in a high security unit unless the chief psychiatrist has given prior written approval of the giving of the agreement.
(4)In deciding whether to give the approval, the chief psychiatrist must have regard to the following—
(a)the minor’s mental state and psychiatric history;
(b)the minor’s treatment and care needs;
(c)the security requirements for the minor.
(5)As soon as practicable after deciding to give the approval, the chief psychiatrist must give a copy of the written approval to the administrator.

187Agreement for detention—chief psychiatrist

(1)The chief psychiatrist may agree to a person’s detention in an authorised mental health service only if the administrator of the service has refused to agree under section 186 to the person’s detention in the service.
(2)In deciding whether to agree, the chief psychiatrist must be satisfied of the matters mentioned in section 186 (2).

188Effect of order for detention

(1)This section applies if a court makes an order under section 183 (c)(ii) in relation to a person.
(2)An authorised person may—
(a)transport the person to an inpatient unit of the authorised mental health service stated in the order; and
(b)at the end of the adjournment, transport the person from the authorised mental health service to appear before the court.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.
(3)The person may be detained under the court’s order in the authorised mental health service.

Division 2 Forensic orders (Criminal Code)

189Application of div 2

(1)This division applies if, on the trial of a person charged with an indictable offence—
(a)the jury makes a relevant finding; and
(b)the Supreme Court or District Court makes a forensic order (Criminal Code).
(2)In this section—
relevant finding means—
(a)a finding under the Criminal Code , section 613 (a section 613 finding) that the person is not capable of understanding the proceedings at the trial for the reason that the person is of unsound mind or for another reason stated by the jury; or
(b)a finding under the Criminal Code , section 645 (a section 645 finding) that the person is not of sound mind; or
(c)a finding under the Criminal Code , section 647 that the person is not guilty of the offence on account of the person being of unsound mind when the act or omission alleged to constitute the offence occurred.

190Registrar of court to give notice of order

The registrar of the court that made the forensic order (Criminal Code) must, within 7 days after the order is made, give notice of the order in the approved form to—
(a)the chief psychiatrist; and
(b)the tribunal.

Notes—

1See chapter 7 , part 2 in relation to the examination of a person subject to a forensic order (Criminal Code).
2See chapter 12 , part 4 for the review of forensic orders (Criminal Code) by the tribunal.
3If a jury makes a section 613 finding or section 645 finding in relation to a person, the person’s fitness for trial must be reviewed by the tribunal. See chapter 12 , part 6 .

191Power to transport person to authorised mental health service

For the purpose of giving effect to the forensic order (Criminal Code), an authorised person may transport the person to the authorised mental health service stated in the order.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.

Part 4 Detention in authorised mental health service during trial

192Definition for pt 4

In this part—
court means—
(a)the Supreme Court; or
(b)the District Court; or
(c)a Magistrates Court.

193Power to order person’s detention in authorised mental health service

(1)This section applies if, after the trial of a person charged with an indictable offence has started, the court hearing the proceeding—
(a)decides the person should be remanded in custody during an adjournment; and
(b)is satisfied that, because of the person’s mental condition, the person should be detained in an authorised mental health service for treatment and care during the adjournment.
(2)The court may order that the person be detained, during the adjournment, in an inpatient unit of a stated authorised mental health service if a written agreement has been given under this part for the person’s detention in the service.

Note—

An order made under subsection (2) is a type of judicial order. A judicial order does not authorise the provision of involuntary treatment and care to the person.

194Persons who may give agreement for detention

An agreement for the person’s detention in an authorised mental health service may be given by—
(a)the administrator of the service; or
(b)the chief psychiatrist.

195Agreement for detention—administrator

(1)The administrator of an authorised mental health service may agree to a person’s detention in the service only if the administrator is satisfied the service has the capacity to detain the person for treatment and care.
(2)Without limiting subsection (1), if the authorised mental health service is not a high security unit, the administrator must be satisfied the person’s detention in the service does not present an unreasonable risk to the safety of the person or others having regard to the following—
(a)the person’s mental state and psychiatric history;
(b)the person’s treatment and care needs;
(c)the security requirements for the person.
(3)If the person is a minor, the administrator of the service must not agree under this part to the minor’s detention in a high security unit unless the chief psychiatrist has given prior written approval of the giving of the agreement.
(4)In deciding whether to give the approval, the chief psychiatrist must have regard to the following—
(a)the minor’s mental state and psychiatric history;
(b)the minor’s treatment and care needs;
(c)the security requirements for the minor.
(5)As soon as practicable after deciding to give the approval, the chief psychiatrist must give a copy of the written approval to the administrator.

196Agreement for detention—chief psychiatrist

(1)The chief psychiatrist may agree to a person’s detention in an authorised mental health service only if the administrator of the service has refused to agree under section 195 to the person’s detention in the service.
(2)In deciding whether to agree, the chief psychiatrist must be satisfied of the matters mentioned in section 195 .

197Effect of order for detention

(1)This section applies if a court makes an order under section 193 (2) in relation to a person.
(2)An authorised person may—
(a)transport the person to an inpatient unit of the authorised mental health service stated in the order; and
(b)at the end of the adjournment, transport the person from the authorised mental health service to appear before the court.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.
(3)The person may be detained under the court’s order in the authorised mental health service.

Chapter 7 Treatment and care of patients

Part 1 Preliminary

198Purpose of ch 7

The purpose of this chapter is to provide for the following—
(a)the responsibilities of authorised doctors and administrators of authorised mental health services in providing treatment and care to patients;
(b)the assessment of patients subject to a treatment authority to decide whether continuation of the authority is appropriate;
(c)the authorisation of treatment in the community for involuntary patients;
(d)the approval of temporary absences for particular involuntary patients;
(e)the appointment of nominated support persons and the recording of advance health directives, enduring powers of attorney and details relating to nominated support persons;
(f)the placing of restrictions on the use of electroconvulsive therapy and non-ablative neurosurgical procedures to treat a mental illness;
(g)the prohibition of psychosurgery and other treatments.

199Relationship between this Act and custodial status of particular patients

(1)This section applies to a patient of an authorised mental health service who is subject to any of the following—
(a)a treatment authority;
(b)a forensic order;
(c)a treatment support order.
(2)A person making a decision about the patient’s treatment in the community must make the decision without regard to whether the patient is in custody under another Act.
(3)However, a decision made under this Act about the patient’s treatment in the community is subject to any custodial requirement under the other Act.
(4)Subsection (3) does not apply to a patient who is detained in the authorised mental health service—
(a)as a classified patient under chapter 3 ; or
(b)under an order mentioned in schedule 3 , definition judicial order, paragraph (c).

s 199 amd 2017 No. 3s 16

Part 2 Responsibility to provide treatment and care

200Application of pt 2

This part applies to each of the following patients of an authorised mental health service—
(a)an involuntary patient subject to—
(i)a treatment authority; or
(ii)a forensic order; or
(iii)a treatment support order;
(b)a person from another State detained in an authorised mental health service under section 368 (4);
(c)a classified patient (voluntary);
(d)a patient receiving treatment and care under an advance health directive or with the consent of a personal guardian or attorney.

201Examination of patient for purpose of providing treatment and care

(1)This section does not apply to a patient subject to a treatment authority, other than a patient subject to a treatment authority who becomes a classified patient.

Note—

See section 53 for deciding the nature and extent of treatment and care under a treatment authority.
(2)An authorised doctor must examine the patient and decide the nature and extent of treatment and care to be provided to the patient.
(3)The examination must be made—
(a)as soon as practicable after the person becomes a patient to whom this part applies; or
(b)if a patient subject to a treatment authority, forensic order or treatment support order becomes a classified patient—as soon as practicable after the patient becomes a classified patient.
(4)In deciding the treatment and care to be provided to the patient, the authorised doctor must—
(a)discuss the treatment and care to be provided with the patient; and
(b)have regard to the views, wishes and preferences of the patient, to the extent they can be expressed, including, for example, in an advance health directive.

202Authorised doctor’s responsibilities for treatment and care

(1)An authorised doctor must ensure the treatment and care to be provided to the patient is, and continues to be, appropriate for the patient’s treatment and care needs and in compliance with the requirements of this Act.
(2)The authorised doctor must record in the patient’s health records the treatment and care planned to be provided, and that is provided, to the patient.

203Administrator’s responsibilities for treatment and care

(1)The administrator of the authorised mental health service has the following responsibilities for the patient—
(a)to take reasonable steps to ensure the patient receives—
(i)the treatment and care planned to be provided to the patient, as recorded in the patient’s health records under section 202 ; and
(ii)to the extent practicable, the treatment and care appropriate for any other illness or condition affecting the patient;
(b)to ensure the systems for recording the patient’s treatment and care, both planned and provided, can be audited;
(c)to ensure regular assessments of the patient under section 205 happen as decided by an authorised doctor for the authorised mental health service.
(2)The administrator must also take reasonable steps to ensure the patient’s treatment and care complies with the requirements of this Act.

Part 3 Patients subject to treatment authorities

Division 1 Preliminary

204Application of pt 3

This part applies to a patient of an authorised mental health service who is subject to a treatment authority.

Division 2 Regular assessment

205Authorised doctor must assess patient

(1)An authorised doctor must make a first assessment of the patient under this section on or before the date recorded in the patient’s health records under section 59 .
(2)Subsequent assessments of the patient under this section must be completed within 3 months after the date of the patient’s previous assessment.
(3)Also, an authorised doctor must make an assessment of the patient under this section if the authorised doctor considers at any time that—
(a)the treatment criteria may no longer apply to the patient; or
(b)there may be a less restrictive way for the patient to receive treatment and care for the patient’s mental illness.
(4)On an assessment under this section, the authorised doctor must—
(a)assess the patient; and
(b)discuss the assessment with the patient; and
(c)decide and record in the patient’s health records—
(i)whether the treatment criteria continue to apply to the patient; and
(ii)whether there is a less restrictive way for the patient to receive treatment and care for the patient’s mental illness; and
(iii)if, because of the decisions required under subparagraphs (i) and (ii), the patient’s treatment authority continues—
(A)whether the category of the patient’s treatment authority continues to be appropriate; and
(B)if the category is inpatient—whether the extent of any limited community treatment under the authority continues to be appropriate; and
(iv)the date of the patient’s next assessment under this section.

Division 3 Actions that may be taken after assessment

206Authorised doctor may revoke treatment authority

(1)This section applies if, after making an assessment of the patient, an authorised doctor considers—
(a)the treatment criteria no longer apply to the patient; or
(b)there is a less restrictive way for the patient to receive treatment and care for the patient’s mental illness.
(2)The authorised doctor must revoke the patient’s treatment authority.
(3)However, the authorised doctor is not required to revoke the treatment authority if the authorised doctor considers the patient’s capacity to consent to be treated for the patient’s mental illness is not stable.

Example of when a patient’s capacity to consent to be treated is not stable—

the patient gains and loses capacity to consent to be treated during a short time period
(4)Also, if the authorised doctor is not an authorised psychiatrist, the revocation takes effect only if the authorised doctor has consulted with an authorised psychiatrist about the revocation.
(5)An authorised doctor must tell a patient of a revocation of the patient’s treatment authority under this section as soon as practicable after the revocation.
(6)The administrator of the authorised mental health service must give written notice of the revocation to the patient, and the tribunal, within 7 days after the revocation.

207Authorised psychiatrist may revoke treatment authority if patient missing

(1)An authorised psychiatrist for an authorised mental health service may revoke the patient’s treatment authority if the authorised psychiatrist is satisfied the authorised mental health service has not been able to locate the patient for a period of at least 6 months.
(2)The administrator of the authorised mental health service must give written notice of the revocation to the tribunal within 7 days after the revocation.

208Chief psychiatrist may revoke treatment authority

(1)This section applies if the chief psychiatrist considers—
(a)the treatment criteria no longer apply to the patient; or
(b)there is a less restrictive way for the patient to receive treatment and care for the patient’s mental illness.
(2)The chief psychiatrist may revoke the patient’s treatment authority.
(3)The chief psychiatrist must give written notice of the revocation to the administrator of the patient’s treating health service as soon as practicable after the revocation.
(4)An authorised doctor must tell the patient of the revocation as soon as practicable after the revocation.
(5)The administrator of the patient’s treating health service must give written notice of the revocation to the tribunal within 7 days after the revocation.

209Amendment of treatment authority to change category, limited community treatment or conditions

(1)An authorised doctor may amend the patient’s treatment authority under this section in any of the following ways—
(a)to change the category of the authority;
(b)to authorise or revoke, or change the nature or extent of, limited community treatment;
(c)to impose a condition on, or change a condition of, the authority.
(2)However, the authorised doctor may change the category of the authority to inpatient only if the authorised doctor considers, after having regard to the relevant circumstances of the patient, that 1 or more of the following can not reasonably be met if the category of the authority is community—
(a)the patient’s treatment and care needs;
(b)the safety and welfare of the patient;
(c)the safety of others.
(3)Also, the authorised doctor may make the amendment only if satisfied the amendment is appropriate having regard to—
(a)the relevant circumstances of the patient; and
(b)for an amendment mentioned in subsection (1)(b)—the purpose of limited community treatment.
(4)The amendment must not change a condition decided by the tribunal, or be contrary to a decision of the tribunal under section 424 or 425.
(5)If limited community treatment is authorised under this section, the patient’s treatment authority must state—
(a)the nature and conditions of the limited community treatment; and
(b)the period, of not more than 7 consecutive days, for which limited community treatment is authorised; and
(c)the duration for which the authorisation is in force.

Example for paragraphs (b) and (c)—

limited community treatment may be authorised for a period of 1 day per week for a duration of 8 weeks
(6)The authorised doctor must tell the patient of any proposed amendment of the patient’s treatment authority and explain the effect of the amendment to the patient.
(7)This section does not apply if the patient is a classified patient.

Note—

See part 6 in relation to classified patients.

210Amendment of treatment authority to change category to inpatient

(1)This section applies if—
(a)the category of the patient’s treatment authority is community; and
(b)an authorised doctor reasonably believes—
(i)there has been a material change in the patient’s mental state; and
(ii)the patient requires urgent treatment and care as an inpatient in an authorised mental health service.
(2)Despite section 209, the authorised doctor may amend the patient’s treatment authority to change the category of the authority to inpatient.
(3)The administrator of the patient’s treating health service must, as soon as practicable after the treatment authority is amended under subsection (2), give the tribunal written notice of the amendment.

Note—

The tribunal must review the treatment authority within 14 days after receiving written notice of the amendment of the authority. See section 413 (4).
(4)Also, subsection (5) applies if, before the tribunal conducts, or completes the hearing of, the review of the treatment authority mentioned in section 413(4), an authorised doctor amends the authority to change the category of the authority to community.
(5)The administrator of the patient’s treating health service must, as soon as practicable after the treatment authority is amended, give the tribunal written notice of the amendment.

Note—

Under section 416 , the tribunal is not required to conduct, or complete the hearing of, the review.

Part 4 Patients subject to forensic orders

211Application of pt 4

(1)This part applies to a patient of an authorised mental health service who is subject to a forensic order.
(2)However, this part does not apply if the patient is a classified patient.

Note—

See part 6 in relation to classified patients.

212Amendment of forensic order (mental health) or forensic order (disability) to change category, limited community treatment or conditions

(1)If the patient’s forensic order is a forensic order (mental health) or a forensic order (disability), an authorised doctor may amend the patient’s forensic order under this section in any of the following ways—
(a)to change the category of the order;
(b)to authorise or revoke, or change the nature or extent of, limited community treatment;
(c)to impose a condition on, or change a condition of, the order.
(2)The amendment must not be contrary to a decision of the Mental Health Court or the tribunal.

Example of a decision that would be contrary to a decision of the Mental Health Court or tribunal—

authorising limited community treatment for the person to a greater extent than the Mental Health Court or the tribunal has decided under section 139 (1)(c) or 445(2)(c)
(3)The authorised doctor may amend the order to increase the extent of treatment in the community only if satisfied, after having regard to the matters mentioned in subsection (4), that there is not an unacceptable risk to the safety of the community, because of the person’s mental condition, including the risk of serious harm to other persons or property.
(4)The matters to which the authorised doctor must have regard are—
(a)the patient’s relevant circumstances; and
(b)for an amendment mentioned in subsection (1)(b)—the purpose of limited community treatment; and
(c)the nature of the relevant unlawful act and the period of time that has passed since the act happened.
(5)The authorised doctor must tell the patient of any proposed amendment of the patient’s forensic order and explain the effect of the amendment to the patient.

213Amendment of forensic order to change category to inpatient

(1)This section applies if—
(a)the category of the patient’s forensic order is community; and
(b)an authorised doctor reasonably believes—
(i)there has been a material change in the patient’s mental state; and
(ii)the patient requires urgent treatment and care as an inpatient in an authorised mental health service.
(2)Despite section 212(2), the authorised doctor may amend the patient’s forensic order to change the category of the order to inpatient.
(3)The administrator of the patient’s treating health service must, as soon as practicable after the forensic order is amended under subsection (2), give the tribunal written notice of the amendment.

Note—

The tribunal must review the forensic order within 21 days after receiving written notice of the amendment of the order. See section 433 (4).
(4)Also, subsection (5) applies if, before the tribunal conducts, or completes the hearing of, the review of the forensic order mentioned in section 433(4), an authorised doctor amends the order to change the category of the order to community.
(5)The administrator of the patient’s treating health service must, as soon as practicable after the forensic order is amended, give the tribunal written notice of the amendment.

Note—

Under section 437 , the tribunal is not required to conduct, or complete the hearing of, the review.

214Limited community treatment for patient subject to forensic order (Criminal Code)

(1)An authorised doctor may authorise or revoke, or change the nature or extent of, limited community treatment for the patient if—
(a)the patient’s forensic order is a forensic order (Criminal Code); and
(b)the chief psychiatrist has given written approval for the limited community treatment.
(2)The authorised doctor may authorise or revoke, or change the nature or extent of, limited community treatment only if satisfied, after having regard to the matters mentioned in subsection (4), that there is not an unacceptable risk to the safety of the community, because of the person’s mental condition, including the risk of serious harm to other persons or property.
(3)The chief psychiatrist may give written approval for the limited community treatment only if satisfied, after having regard to the matters mentioned in subsection (4), that there is not an unacceptable risk to the safety of the community, because of the person’s mental condition, including the risk of serious harm to other persons or property.
(4)The matters to which the authorised doctor or chief psychiatrist must have regard are—
(a)the patient’s relevant circumstances; and
(b)the purpose of limited community treatment; and
(c)the nature of the relevant unlawful act and the period of time that has passed since the act happened.
(5)The limited community treatment ends on the day the tribunal makes a decision under section 461 in relation to the patient’s forensic order (Criminal Code).

Part 5 Patients subject to treatment support orders

215Application of pt 5

(1)This part applies to a patient of an authorised mental health service who is subject to a treatment support order.
(2)However, this part does not apply if the patient is a classified patient.

Note—

See part 6 for provisions applying to classified patients.

216Amendment of treatment support order to change category, limited community treatment or conditions

(1)An authorised doctor may amend the patient’s treatment support order under this section in any of the following ways—
(a)to change the category of the order;
(b)to authorise or revoke, or change the nature or extent of, limited community treatment;
(c)to impose a condition on, or change a condition of, the order.
(2)However, the authorised doctor may change the category of the order to inpatient only if the authorised doctor considers, after having regard to the relevant circumstances of the patient, that 1 or more of the following can not reasonably be met if the category of the order is community—
(a)the patient’s treatment and care needs;
(b)the safety and welfare of the patient;
(c)the safety of others.
(3)Also, the authorised doctor may make the amendment only if satisfied the amendment is appropriate having regard to—
(a)the patient’s relevant circumstances; and
(b)for an amendment mentioned in subsection (1)(b)—the purpose of limited community treatment; and
(c)the nature of the relevant unlawful act and the amount of time that has passed since the act happened.
(4)The amendment must not—
(a)change a condition decided by the Mental Health Court or tribunal; or
(b)reduce the extent of treatment in the community received by the patient contrary to a decision of the Mental Health Court under section 145(5) or the tribunal under section 476 or 477(4).
(5)Subject to subsection (4), the power of an authorised doctor under subsection (1) is not limited by a decision of the Mental Health Court or tribunal.
(6)If limited community treatment is authorised under this section, the patient’s treatment support order must state—
(a)the nature and conditions of the limited community treatment; and
(b)the period, of not more than 7 consecutive days, for which limited community treatment is authorised; and
(c)the duration for which the order is in force.

Example for paragraphs (b) and (c)—

limited community treatment may be authorised for a period of 1 day per week for a duration of 8 weeks
(7)The authorised doctor must tell the patient of any proposed amendment of the patient’s treatment support order and explain the effect of the amendment to the patient.

217Amendment of treatment support order to change category to inpatient

(1)This section applies if—
(a)the category of the patient’s treatment support order is community; and
(b)an authorised doctor reasonably believes—
(i)there has been a material change in the patient’s mental state; and
(ii)the patient requires urgent treatment and care as an inpatient in an authorised mental health service.
(2)Despite section 216, the authorised doctor may amend the patient’s treatment support order to change the category of the order to inpatient.
(3)The administrator of the patient’s treating health service must, as soon as practicable after the treatment support order is amended under subsection (2), give the tribunal written notice of the amendment.

Note—

The tribunal must review the treatment support order within 14 days after receiving written notice of the amendment of the order. See section 465 (4).
(4)Also, subsection (5) applies if, before the tribunal conducts, or completes the hearing of, the review of the treatment support order mentioned in section 465(4), an authorised doctor amends the order to change the category of the order to community.
(5)The administrator of the patient’s treating health service must, as soon as practicable after the treatment support order is amended, give the tribunal written notice of the amendment.

Note—

Under section 469 , the tribunal is not required to conduct, or complete the hearing of, the review.

Part 6 Classified patients and patients subject to judicial orders

218Application of pt 6

This part applies to each of the following patients of an authorised mental health service if the patient is detained at the service—
(a)a classified patient;
(b)a patient subject to a judicial order.

219Authorisation of limited community treatment

(1)An authorised doctor may authorise limited community treatment for the patient if—
(a)the chief psychiatrist has given written approval for the limited community treatment; and
(b)the authorised doctor is satisfied the patient is unlikely to abscond from the authorised mental health service while receiving the limited community treatment.
(2)The chief psychiatrist may give written approval under subsection (1)(a) if the chief psychiatrist is satisfied the patient is unlikely to abscond from the authorised mental health service while receiving the limited community treatment.
(3)For this section, the patient’s limited community treatment must be confined to the grounds and buildings of the authorised mental health service in which the patient is detained.
(4)The patient must remain in the physical presence of an employee of the authorised mental health service while the patient is receiving the limited community treatment.

s 219 amd 2017 No. 3s 17

Part 7 Obligations in relation to treatment in the community

220Patient’s obligations to be recorded and explained

(1)This section applies if a patient who is subject to a treatment authority, forensic order or treatment support order is authorised under this Act to receive treatment in the community outside an authorised mental health service.
(2)An authorised doctor must decide—
(a)the treatment and care to be provided to the patient while receiving the treatment in the community; and
(b)the patient’s obligations while receiving the treatment in the community, including, for example, obligations to attend scheduled appointments with the patient’s treating health service.
(3)In deciding the matters mentioned in subsection (2), the authorised doctor must discuss the matters with the person.
(4)Before the patient physically leaves the authorised mental health service to receive the treatment in the community, the authorised doctor must—
(a)explain to the patient the matters mentioned in subsection (2); and
(b)record in the patient’s health records the matters mentioned in subsection (2); and
(c)give the patient a written notice summarising the matters mentioned in subsection (2).
(5)An authorised doctor is required to comply with subsection (4) only once for each type of treatment in the community authorised for the patient under this Act.

Example—

If a patient is authorised to receive treatment in the community in the form of day leave on each day of 1 week, an authorised doctor for the authorised mental health service is required to comply with subsection (4) only once, and not on each day of the week.
(6)This section does not apply if the treatment in the community authorised for the patient under this Act is escorted day leave.
(7)In this section—
escorted day leave, for a patient in an authorised mental health service, means the patient, for a period of not more than 1 day and not overnight—
(a)is authorised to be physically away from the service; and
(b)is required to remain in the physical presence of an employee of the service while physically away from the service.

s 220 amd 2017 No. 3s 18

221Chief psychiatrist may approve temporary absence

(1)This section applies to each of the following patients—
(a)a patient subject to a forensic order if the category is inpatient;
(b)a classified patient;
(c)a patient subject to a judicial order.
(2)The chief psychiatrist may approve the patient’s temporary absence from an authorised mental health service—
(a)to receive medical, dental or other health treatment; or
(b)to appear before a court, tribunal or other body; or
(c)to look for accommodation for the patient for when the patient is discharged from the service; or
(d)for a purpose based on compassionate grounds; or
(e)for another purpose the chief psychiatrist is satisfied justifies approving the absence.
(3)As soon as practicable after approving the temporary absence, the chief psychiatrist must give written notice of the approval to the administrator of the authorised mental health service.
(4)The written notice must state—
(a)the approved period of temporary absence; and
(b)any conditions to which the approval is subject, including, for example, that the patient remain in the physical presence of a stated person for the period of the temporary absence.
(5)If the patient does not return to the authorised mental health service after the approved period of temporary absence, an authorised person may transport the patient to the authorised mental health service.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.

Part 8 Advance health directives, nominated support persons and records system

Division 1 Advance health directives

222Advance health directive may include views about treatment and care

(1)This section applies if, by an advance health directive, a principal gives a direction about health matters or special health matters, or appoints an attorney to exercise power for health matters, relating to the principal’s future treatment and care for a mental illness.

Note—

An advance health directive may be made under the Powers of Attorney Act 1998 only by an adult.
(2)Without limiting the Powers of Attorney Act 1998 , section 35 (1) (b) , the advance health directive may include the principal’s views, wishes and preferences about the principal’s future treatment and care for a mental illness.

Note—

Views, wishes and preferences about treatment and care expressed in an advance health directive must be taken into account under section 53 in deciding the nature and extent of treatment and care to be provided under a treatment authority.
(3)In this section—
health matter see the Powers of Attorney Act 1998 , schedule 2 , section 4 .
principal see the Powers of Attorney Act 1998 , section 5 .
special health matter see the Powers of Attorney Act 1998 , schedule 2 , section 6 .

Division 2 Nominated support persons

223Who is a nominated support person

(1)A person is a nominated support person of another person (the appointing person) if—
(a)the person has been appointed, by written notice, as a nominated support person by the appointing person; and
(b)the appointing person had capacity to make the appointment at the time of the appointment; and
(c)a record for the appointment is kept in the records system.
(2)The appointing person may appoint no more than 2 nominated support persons.
(3)The appointing person may revoke the appointment of a nominated support person by written notice given to the nominated support person.
(4)A revocation takes effect only if the appointing person has capacity to revoke the appointment at the time of the revocation.
(5)A nominated support person may resign by written notice given to the appointing person.
(6)For this section, a person has capacity to make or revoke an appointment of a nominated support person if the person has the ability to—
(a)understand the nature and effect of the appointment or revocation; and
(b)make and communicate the appointment or revocation.

224Functions of nominated support person

A nominated support person may, if the appointing person is or becomes an involuntary patient, do any of the following—
(a)receive notices for the appointing person under this Act;
(b)receive confidential information, under the Hospital and Health Boards Act 2011 , relating to the appointing person;
(c)request a psychiatrist report under section 90 ;
(d)to the extent permitted under chapter 12 or 16—
(i)act as the appointing person’s support person in the tribunal; or
(ii)represent the appointing person in the tribunal.

Division 3 Records system

225Chief psychiatrist to maintain records system

(1)The chief psychiatrist must establish and maintain a system (the records system) for keeping electronic records of—
(a)advance health directives; and
(b)enduring powers of attorney for a personal matter; and
(c)appointments of nominated support persons.
(2)The records system must be capable of keeping an electronic record for a matter mentioned in subsection (1) consisting of—
(a)a record stating the directive, power of attorney or appointment has been made by a stated person on a stated date; and
(b)an electronic copy of the directive, power of attorney or notice of appointment.

226Request to keep record

(1)This section applies if a person—
(a)makes an advance health directive, or enduring power of attorney for a personal matter, relating to the person’s future treatment and care for a mental illness; or
(b)appoints a nominated support person.
(2)The person may—
(a)give the administrator of an authorised mental health service a copy of the directive, power of attorney or notice of appointment; and
(b)ask the administrator to keep a record for the matter in the records system.
(3)The administrator must—
(a)comply with the request; and
(b)on complying with the request, give the person written notice confirming compliance with the request.

227Requirement to give notice—matters relating to advance health directive or enduring power of attorney

(1)This section applies if—
(a)a record for an advance health directive or enduring power of attorney for a personal matter is kept in the records system; and
(b)under the Powers of Attorney Act 1998
(i)the directive or power of attorney is revoked by the person who made it, including, to the extent of an inconsistency, by the making of a later advance health directive or power of attorney; or
(ii)to the extent the directive or power of attorney appoints an attorney to exercise power for a personal matter—the attorney resigns.
(2)The person who made the directive or power of attorney must give the administrator of an authorised mental health service written notice of the revocation or resignation.
(3)If subsection (1)(b)(ii) applies, the person is taken to have complied with subsection (2) if the attorney gives the administrator of an authorised mental health service written notice of the resignation.
(4)On receiving a notice under subsection (2) or (3), the administrator must remove or, for an inconsistency mentioned in subsection (1)(b)(i), update the record for the advance health directive or power of attorney in the records system.

s 227 amd 2017 No. 3s 19

228Requirement to give notice—revocation of appointment of nominated support person

(1)This section applies if—
(a)a record for an appointment of a nominated support person is kept in the records system; and
(b)the appointment is revoked by the person who made it.
(2)The person must give the administrator of an authorised mental health service written notice of the revocation.
(3)On receiving the notice, the administrator must remove the record for the appointment from the records system.

229Requirement to give notice—resignation of nominated support person

(1)This section applies if—
(a)a record for an appointment of a nominated support person is kept in the records system; and
(b)the person resigns as nominated support person.
(2)The person must give the administrator of an authorised mental health service written notice of the resignation.
(3)On receiving the notice, the administrator must remove the record for the appointment from the records system.

230Copy in records system is proof

(1)This section applies if a record for an advance health directive or enduring power of attorney for a personal matter is kept in the records system.
(2)The directive or power of attorney may be proved by a copy produced from the records system.

Note—

See also the Powers of Attorney Act 1998 , section 45 for other ways in which the directive or power of attorney may be proved.

Part 9 Reporting on minors admitted to particular authorised mental health services

231Obligation to notify public guardian

(1)This section applies if a minor is admitted to—
(a)a high security unit; or
(b)an inpatient mental health unit of an authorised mental health service, other than a child and adolescent unit.
(2)The administrator of the authorised mental health service must, within 72 hours after the minor is admitted, give the public guardian written notice of the admission.
(3)The administrator of an authorised mental health service may enter into arrangements with the chief psychiatrist for the giving of notices under subsection (2), on behalf of the administrator, to the public guardian.
(4)In this section—
child and adolescent unit means an inpatient mental health unit of an authorised mental health service that provides treatment and care only to minors or young adults.

Example—

an inpatient mental health unit of an authorised mental health service that admits only minors, or patients between 16 and 21 years
inpatient mental health unit, of an authorised mental health service, means a part of the service to which patients are admitted for treatment and care and discharged on a day other than the day of admission.

s 231 amd 2017 No. 3s 20

Part 10 Regulated treatment

Division 1 Preliminary

232Meaning of regulated treatment

In this part—

regulated treatment means—
(a)electroconvulsive therapy; or
(b)a non-ablative neurosurgical procedure.

Division 2 Informed consent

233Requirements for informed consent

(1)A person gives informed consent to the person’s treatment by regulated treatment only if—
(a)the person has capacity to give consent to the treatment; and
(b)the consent is in writing signed by the person; and
(c)the consent is given freely and voluntarily.
(2)For subsection (1)(a), the person has capacity to give consent to the treatment if the person has the ability to—
(a)understand the nature and effect of a decision relating to the treatment; and
(b)make and communicate the decision.
(3)A person can give informed consent in an advance health directive.

234Explanation to be given

Before a person gives informed consent to the person’s treatment by regulated treatment, the doctor proposing to provide the treatment must give the person a full explanation, in a form and language able to be understood by the person, about—

(a)the purpose, method, likely duration and expected benefit of the treatment; and
(b)possible pain, discomfort, risks and side effects associated with the treatment; and
(c)alternative methods of treatment available to the person; and
(d)the consequences of not receiving treatment.

Division 3 Electroconvulsive therapy

235Offence to perform electroconvulsive therapy

A person must not perform electroconvulsive therapy on another person other than under this Act.

Maximum penalty—200 penalty units or 2 years imprisonment.

236Performance of electroconvulsive therapy with consent or tribunal approval

(1)A doctor for an authorised mental health service may perform electroconvulsive therapy on a patient in the authorised mental health service if—
(a)the patient is an adult and has given informed consent to the treatment; or
(b)the patient is an adult, who is unable to give informed consent to the treatment, and the tribunal has approved under section 509 the performance of the therapy on the adult; or
(c)the patient is a minor and the tribunal has approved under section 509 the performance of the therapy on the minor.
(2)If a doctor makes an application under section 507 to the tribunal for approval to perform the therapy on the patient, the doctor must, as soon as practicable after the application is made and to the extent practicable—
(a)tell the patient the application has been made; and
(b)explain the application to the patient.

237Performance of electroconvulsive therapy in emergency

(1)This section applies to the following (each a relevant patient)—
(a)an involuntary patient subject to a treatment authority, forensic order or treatment support order;
(b)a person from another State detained in an authorised mental health service under section 368(4).
(2)A doctor for an authorised mental health service may perform electroconvulsive therapy on the relevant patient in the authorised mental health service if—
(a)a certificate under subsection (3) is in force for the relevant patient; and
(b)an application under section 507 has been made to the tribunal to perform electroconvulsive therapy on the relevant patient and is not decided.
(3)The doctor and the senior medical administrator of the relevant patient’s treating health service may certify in writing that performing electroconvulsive therapy on the relevant patient is necessary—
(a)to save the relevant patient’s life; or
(b)to prevent the relevant patient from suffering irreparable harm.
(4)A certificate given under subsection (3) is in force for the period that—
(a)starts on the day the application under section 507 is made; and
(b)ends on the day the application under section 507 is decided.

Note—

Section 727 (a) provides that an application under section 507 must be heard as soon as practicable after the application is made.

Division 4 Non-ablative neurosurgical procedures

238Offence to perform non-ablative neurosurgical procedure

(1)A person must not perform a non-ablative neurosurgical procedure on another person for the purpose of treating the other person’s mental illness other than under this Act.

Maximum penalty—200 penalty units or 2 years imprisonment.

(2)To remove any doubt, it is declared that, for subsection (1), none of the following is a mental illness—
(a)chronic tic disorder, dystonia, epilepsy, Gilles de la Tourette syndrome, Parkinson’s disease or tremor;
(b)another neurological disorder prescribed by regulation.

239Performance of non-ablative neurosurgical procedure with consent and tribunal approval

A doctor for an authorised mental health service may perform a non-ablative neurosurgical procedure on a person in the authorised mental health service if—

(a)the person has given informed consent to the treatment; and
(b)the tribunal has approved under section 512 the performance of the procedure on the person.

Example of a non-ablative neurosurgical procedure—

deep brain stimulation

Part 11 Prohibited treatment

240Particular therapies prohibited

A person must not administer to another person—

(a)insulin induced coma therapy; or
(b)deep sleep therapy.

Maximum penalty—200 penalty units or 2 years imprisonment.

241Psychosurgery prohibited

A person must not perform psychosurgery on another person.

Maximum penalty—200 penalty units or 2 years imprisonment.

Chapter 8 Use of mechanical restraint, seclusion, physical restraint and other practices

Part 1 Preliminary

242Purpose of ch 8

The purpose of this chapter is to provide for restrictions on the use of mechanical restraint, seclusion and physical restraint, and the appropriate use of medication, on patients in authorised mental health services.

Notes—

1See section 374 for the power to administer medication to a person for the purpose of transporting the person.
2See section 375 for the power to use mechanical restraint on an involuntary patient for the purpose of transporting the patient.

243Definitions for ch 8

In this chapter—
approved device means a device approved by the chief psychiatrist, including, for example, in the restraint, seclusion and other practices policy.
mechanical restraint see section 244.
medication, for part 5, division 2, see section 271.
patient means—
(a)an involuntary patient; or
(b)a person receiving treatment and care for a mental illness in an authorised mental health service, other than as an involuntary patient, including a person receiving treatment and care under an advance health directive or with the consent of a personal guardian or attorney.
physical restraint see section 268.
reduction and elimination plan see section 264.
relevant patient means—
(a)an involuntary patient in an authorised mental health service who is subject to a treatment authority, forensic order or treatment support order; or
(b)a person from another State detained in an authorised mental health service under section 368(4).
required information means information required by the chief psychiatrist in the restraint, seclusion and other practices policy.
required time and way means the time and way required by the chief psychiatrist in the restraint, seclusion and other practices policy.
seclusion see section 254.
unit, within an authorised mental health service, includes an emergency department or other assessment or treatment unit within the service.

Part 2 Mechanical restraint

Division 1 Preliminary

244Meaning of mechanical restraint

(1)Mechanical restraint is the restraint of a person by the application of a device to the person’s body, or a limb of the person, to restrict the person’s movement.
(2)However, mechanical restraint does not include—
(a)the appropriate use of a medical or surgical appliance in the treatment of physical illness or injury; or
(b)restraint of a person that is authorised or permitted under a law other than this part.

Example for paragraph (b)—

The restraint of a person by a police officer may be authorised under the Police Powers and Responsibilities Act 2000 , section 615 .

245Offence

A person must not use mechanical restraint on a patient in an authorised mental health service other than under this Act.

Maximum penalty—200 penalty units.

Division 2 Authorised mechanical restraint

246Requirements for use of mechanical restraint on relevant patients

(1)This section applies to a relevant patient.
(2)An authorised doctor, or a health practitioner authorised by an authorised doctor, may use mechanical restraint on the relevant patient in the authorised mental health service if—
(a)the authorised mental health service is—
(i)a high security unit; or
(ii)another authorised mental health service approved by the chief psychiatrist for the purposes of this part; and
(b)the device used is an approved device; and
(c)the chief psychiatrist has given approval under section 249 for an authorised doctor to authorise the use of mechanical restraint on the relevant patient; and
(d)the use of mechanical restraint on the relevant patient is authorised by an authorised doctor under section 250 ; and
(e)the use of mechanical restraint on the relevant patient complies with the restraint, seclusion and other practices policy; and
(f)if a reduction and elimination plan for the relevant patient has been approved under section 267 —the use of mechanical restraint on the relevant patient complies with the plan; and
(g)the use of mechanical restraint on the relevant patient, including applying the device to the relevant patient, is with no more force than is necessary and reasonable in the circumstances; and
(h)the relevant patient is observed continuously while restrained.

247Application for chief psychiatrist’s approval

(1)An authorised doctor may apply to the chief psychiatrist for an approval enabling the authorised doctor to authorise, under section 250 , the use of mechanical restraint on a relevant patient in an authorised mental health service.
(2)The application must be in the approved form and state the following—
(a)the name of the relevant patient and the relevant patient’s treating health service;
(b)information about the relevant patient’s mental condition;
(c)the reasons why the authorised doctor considers there is no other reasonably practicable way to protect the relevant patient or others from physical harm;
(d)the period, of not more than 7 days, for which the approval is sought;
(e)the approved device for which the approval is sought;
(f)any proposed limitations on the use of mechanical restraint on the relevant patient;
(g)the way in which the relevant patient is to be observed continuously while restrained.
(3)The application may include an application under section 266 for approval of a reduction and elimination plan for the relevant patient.

248Chief psychiatrist may require amendment of application to include reduction and elimination plan

(1)This section applies if an application made by an authorised doctor under section 247 does not include an application under section 266 for approval of a reduction and elimination plan for the relevant patient.
(2)The chief psychiatrist may, by written notice given to the authorised doctor, require the authorised doctor to amend the application to include an application under section 266 for approval of a reduction and elimination plan for the relevant patient.

249Chief psychiatrist may approve authorisation of use of mechanical restraint

(1)The chief psychiatrist may give approval enabling an authorised doctor to authorise, under section 250 , the use of mechanical restraint on a relevant patient if the chief psychiatrist is satisfied there is no other reasonably practicable way to protect the relevant patient or others from physical harm.
(2)The approval must state—
(a)the period, of not more than 7 days, during which an authorised doctor may authorise the use of mechanical restraint on the relevant patient; and
(b)the approved device that must be used; and
(c)any limitations to be included in the authorisation relating to the use of mechanical restraint on the relevant patient; and
(d)the way in which the relevant patient must be observed continuously while restrained; and
(e)any other conditions the chief psychiatrist considers appropriate.
(3)The approval may include approval under section 267 of a reduction and elimination plan for the relevant patient.

250Authorisation of use of mechanical restraint by authorised doctor

(1)An authorised doctor may authorise the use of mechanical restraint on a relevant patient in an authorised mental health service if the authorised doctor is satisfied—
(a)there is no other reasonably practicable way to protect the relevant patient or others from physical harm; and
(b)the authorisation complies with the approval given by the chief psychiatrist under section 249 ; and
(c)the authorisation complies with the restraint, seclusion and other practices policy; and
(d)if a reduction and elimination plan for the relevant patient has been approved under section 267 —the authorisation complies with the plan.
(2)The authorisation must be in writing and state the following—
(a)the period, of not more than 3 hours, during which mechanical restraint may be used on the relevant patient;
(b)the approved device that must be used;
(c)the time at which the use of mechanical restraint on the relevant patient is to start (the start time);
(d)the time at which the use of mechanical restraint on the relevant patient is to end (the end time);
(e)the measures that must be taken to ensure the health, safety and comfort of the relevant patient;
(f)the way in which the relevant patient must be observed continuously while restrained;
(g)whether a health practitioner may end the use of mechanical restraint before the end time.
(3)The authorisation may state a start time that is immediately after the end time of a previous authorisation.
(4)However, an authorisation (the proposed authorisation) may not be given if the total period for which mechanical restraint has been used on the relevant patient under any previous authorisation, and may be used on the relevant patient under the proposed authorisation, is more than 9 hours in a 24-hour period.
(5)Subsection (4) does not apply if a reduction and elimination plan approved under section 267 provides for the use of mechanical restraint on the relevant patient for more than 9 hours in a 24-hour period.

s 250 amd 2017 No. 3s 21

251Duties of health practitioner in charge of unit

The health practitioner in charge of an inpatient unit or other unit within an authorised mental health service must, if mechanical restraint is used on a relevant patient while the health practitioner is in charge of the unit—
(a)ensure the use complies with the authorisation under section 250 ; and
(b)ensure the relevant patient’s reasonable needs are met, including, for example, being given—
(i)sufficient bedding and clothing; and
(ii)sufficient food and drink; and
(iii)access to toilet facilities; and
(c)record the required information about the use of mechanical restraint on the relevant patient in the required time and way.

252Removal of mechanical restraint before authorisation ends

(1)The chief psychiatrist must direct an authorised doctor, or the health practitioner in charge of the unit, to end the use of mechanical restraint on a relevant patient, before the end time stated in the authorisation under section 250 , if the chief psychiatrist is satisfied the use of mechanical restraint on the relevant patient is no longer necessary to protect the relevant patient or others from physical harm.
(2)An authorised doctor must end the use of mechanical restraint on a relevant patient, before the end time stated in the authorisation under section 250 , if the authorised doctor is satisfied the use of mechanical restraint on the relevant patient is no longer necessary to protect the relevant patient or others from physical harm.
(3)The health practitioner in charge of the unit must end the use of mechanical restraint on a relevant patient, before the end time stated in the authorisation under section 250 , if—
(a)the authorisation states a health practitioner may end the use of mechanical restraint before the end time; and
(b)the health practitioner is satisfied the use of mechanical restraint on the relevant patient is no longer necessary to protect the relevant patient or others from physical harm.
(4)If the health practitioner in charge of the unit ends the use of mechanical restraint under subsection (3) , the health practitioner must tell the authorised doctor who gave the authorisation as soon as practicable after the use is ended.

253Reuse of mechanical restraint

(1)This section applies if an authorised doctor or the health practitioner in charge of the unit ends the use of mechanical restraint under section 252 .
(2)The authorised doctor or health practitioner may, at any time before the end time stated in the authorisation under section 250 , reuse mechanical restraint on the relevant patient if satisfied there is no other reasonably practicable way to protect the relevant patient or others from physical harm.
(3)The reuse must comply with the authorisation under section 250 including the end time stated in the authorisation.
(4)If the health practitioner in charge of the unit reuses mechanical restraint under subsection (2) , the health practitioner must tell the authorised doctor who gave the authorisation as soon as practicable after the reuse.

Part 3 Seclusion

Division 1 Preliminary

254Meaning of seclusion

(1)Seclusion is the confinement of a person, at any time of the day or night, alone in a room or area from which free exit is prevented.
(2)However, seclusion does not include—
(a)confinement of a person in a high security unit, or in another authorised mental health service approved by the chief psychiatrist for the purposes of this part, if the confinement is—
(i)for a period, approved by the administrator of the service, of not more than 10 hours between 8p.m. and 8a.m.; and
(ii)for security purposes; or
(b)confinement that is authorised under a law other than this part.

255Offence

A person must not keep a patient in seclusion in an authorised mental health service other than under this Act.

Maximum penalty—200 penalty units.

Division 2 Authorised seclusion

256Requirements for seclusion of relevant patients

(1)This section applies to a relevant patient.
(2)An authorised doctor, or a health practitioner authorised by an authorised doctor, may keep the relevant patient in seclusion in the authorised mental health service if—
(a)the seclusion of the relevant patient is authorised by an authorised doctor under section 258 or 259; and
(b)if a written direction about seclusion has been given under section 257 to the authorised mental health service—the seclusion of the relevant patient complies with the direction; and
(c)the seclusion of the relevant patient complies with the restraint, seclusion and other practices policy; and
(d)if a reduction and elimination plan for the relevant patient has been approved under section 267 —the seclusion of the relevant patient complies with the plan; and
(e)the seclusion of the relevant patient is done with no more force than is necessary and reasonable in the circumstances; and
(f)the relevant patient is observed, while kept in seclusion, either—
(i)continuously; or
(ii)at intervals of not more than 15 minutes.

257Chief psychiatrist may give written direction about seclusion

The chief psychiatrist may give an authorised mental health service a written direction stating any of the following—
(a)that no relevant patients may be kept in seclusion;
(b)that a class of relevant patients may not be kept in seclusion;
(c)that a particular relevant patient may not be kept in seclusion;
(d)requirements about the way in which all relevant patients, a class of relevant patients, or a particular relevant patient are to be kept in seclusion;
(e)that all relevant patients, a class of relevant patients, or a particular relevant patient may be kept in seclusion only if the seclusion is provided for under a reduction and elimination plan for the relevant patient approved under section 267 .

258Authorisation of seclusion by authorised doctor

(1)An authorised doctor may authorise the seclusion of a relevant patient in an authorised mental health service if the authorised doctor is satisfied—
(a)there is no other reasonably practicable way to protect the relevant patient or others from physical harm; and
(b)if a written direction about seclusion has been given under section 257 to the authorised mental health service—the seclusion complies with the direction; and
(c)the seclusion of the relevant patient complies with the restraint, seclusion and other practices policy; and
(d)if a reduction and elimination plan for the relevant patient has been approved under section 267 —the seclusion of the relevant patient complies with the plan.
(2)The authorisation must be in writing and state the following—
(a)the period, of not more than 3 hours, during which the relevant patient may be kept in seclusion;
(b)the time at which the seclusion of the relevant patient is to start (the start time);
(c)the time at which the seclusion of the relevant patient is to end (the end time);
(d)the measures that must be taken to ensure the health, safety and comfort of the relevant patient;
(e)the way in which the relevant patient must be observed while kept in seclusion including whether the relevant patient must be observed continuously or at stated intervals of not more than 15 minutes;
(f)whether a health practitioner may remove the relevant patient from seclusion before the end time.
(3)The authorisation may state a start time that is immediately after the end time of a previous authorisation.
(4)However, an authorisation (the proposed authorisation) may not be given if the total period for which the relevant patient has been kept in seclusion under any previous authorisation or under section 263 , and may be kept in seclusion under the proposed authorisation, is more than 9 hours in a 24-hour period.
(5)Subsection (4) does not apply if a reduction and elimination plan approved under section 267 provides for the seclusion of the relevant patient, including under section 263 , for more than 9 hours in a 24-hour period.

s 258 amd 2017 No. 3s 22

259Extension of period of seclusion

(1)This section applies if the total period for which a relevant patient has been or may be kept in seclusion in an authorised mental health service under an authorisation made under section 258 is more than 9 hours in a 24-hour period.
(2)An authorised doctor for the authorised mental health service may extend the period during which the relevant patient may be kept in seclusion, for a further period of not more than 12 hours, if—
(a)the authorised doctor is satisfied—
(i)of the matters mentioned in section 258 (1)(a) to (c); and
(ii)it has not been reasonably practicable for a reduction and elimination plan for the relevant patient to be approved during the 9 hours; and
(b)the clinical director of the authorised mental health service, upon being satisfied of the matters mentioned in paragraph (a), has given written approval for the extension.
(3)The extension must be in writing and state the following—
(a)the further period, of not more than 12 hours, during which the relevant patient may be kept in seclusion;
(b)the time at which the further period of seclusion of the relevant patient is to start (the start time);
(c)the time at which the further period of seclusion of the relevant patient is to end (the end time);
(d)the measures that must be taken to ensure the health, safety and comfort of the relevant patient;
(e)the way in which the relevant patient must be observed while kept in the further period of seclusion, including whether the relevant patient must be observed continuously or at stated intervals of not more than 15 minutes;
(f)whether a health practitioner may remove the relevant patient from seclusion before the end time.
(4)As soon as practicable after giving the extension, the authorised doctor must—
(a)notify the chief psychiatrist of the extension; and
(b)make an application under section 266 for a reduction and elimination plan for the relevant patient.

s 259 amd 2017 No. 3s 23

260Duties of health practitioner in charge of unit

The health practitioner in charge of an inpatient unit or other unit within an authorised mental health service must, if the relevant patient is kept in seclusion while the health practitioner is in charge of the unit—
(a)ensure the seclusion complies with the authorisation under section 258 or 259; and
(b)ensure the relevant patient’s reasonable needs are met, including, for example, being given—
(i)sufficient bedding and clothing; and
(ii)sufficient food and drink; and
(iii)access to toilet facilities; and
(c)record the required information about the seclusion of the relevant patient in the required time and way.

261Removal from seclusion before authorisation ends

(1)The chief psychiatrist must direct an authorised doctor, or the health practitioner in charge of the unit, to remove a relevant patient from seclusion, before the end time stated in the authorisation under section 258 or 259, if the chief psychiatrist is satisfied that seclusion of the relevant patient is no longer necessary to protect the relevant patient or others from physical harm.
(2)An authorised doctor must remove a relevant patient from seclusion, before the end time stated in the authorisation under section 258 or 259, if the authorised doctor is satisfied that seclusion of the relevant patient is no longer necessary to protect the relevant patient or others from physical harm.
(3)The health practitioner in charge of the unit must remove a relevant patient from seclusion, before the end time stated in the authorisation under section 258 or 259, if—
(a)the authorisation states a health practitioner may remove the relevant patient from seclusion before the end time; and
(b)the health practitioner is satisfied that seclusion of the relevant patient is no longer necessary to protect the relevant patient or others from physical harm.
(4)If the health practitioner in charge of the unit removes a relevant patient from seclusion under subsection (3) , the health practitioner must tell the authorised doctor who gave the authorisation as soon as practicable after the removal.

262Return to seclusion after removal

(1)This section applies if an authorised doctor or the health practitioner in charge of the unit removes a relevant patient from seclusion under section 261 .
(2)The authorised doctor or health practitioner may, at any time before the end time stated in the authorisation under section 258 or 259, return the relevant patient to seclusion if satisfied there is no other reasonably practicable way to protect the relevant patient or others from physical harm.
(3)The return to seclusion must comply with the authorisation under section 258 or 259 including the end time stated in the authorisation.
(4)If the health practitioner in charge of the unit returns the relevant patient to seclusion under subsection (2) , the health practitioner must tell the authorised doctor who gave the authorisation as soon as practicable after the return.

Division 3 Emergency seclusion

263Requirements for emergency seclusion by health practitioner in charge of unit

(1)The health practitioner in charge of an inpatient unit or other unit within an authorised mental health service, or an appropriately qualified person authorised by the health practitioner, may keep a relevant patient in seclusion in the unit if—
(a)the health practitioner is satisfied—
(i)there is no other reasonably practicable way to protect the relevant patient or others from physical harm; and
(ii)if a written direction about seclusion has been given under section 257 to the authorised mental health service—the seclusion of the relevant patient complies with the direction; and
(iii)it is not practicable in the circumstances for an authorised doctor to authorise the seclusion of the relevant patient under section 258 ; and
(b)the relevant patient is observed continuously during the seclusion; and
(c)the seclusion is for a period of not more than 1 hour; and
(d)as soon as practicable after the start of the seclusion, the health practitioner tells an authorised doctor of the seclusion.
(2)The authorised doctor notified under subsection (1) (d) must—
(a)examine the relevant patient; or
(b)ensure the relevant patient is examined by another authorised doctor.
(3)The authorised doctor who examines the relevant patient must decide whether to authorise the seclusion of the relevant patient under section 258 .
(4)Subject to subsection (1) (c), seclusion of the relevant patient under this section ends when the authorised doctor makes the decision mentioned in subsection (3) .
(5)This section does not prevent the health practitioner in charge of the unit removing the relevant patient from seclusion before the end of the period mentioned in subsection (1) (c), if satisfied seclusion is no longer necessary to protect the relevant patient or others from physical harm.
(6)Removal of the relevant patient from seclusion under subsection (5) does not affect the authorised doctor’s obligation under subsection (2) .
(7)The relevant patient may be kept in seclusion under this section for not more than 3 hours in a 24-hour period.

Part 4 Reduction and elimination plans

264What is a reduction and elimination plan

A reduction and elimination plan is a written plan, for a relevant patient, developed by an authorised doctor that provides for the reduction and elimination of either or both of the following—
(a)the use of mechanical restraint on the relevant patient;
(b)the seclusion of the relevant patient.

265Content of plan

A reduction and elimination plan must include—
(a)the name of the relevant patient; and
(b)information, if any, about—
(i)the previous use of mechanical restraint on, or seclusion of, the relevant patient; and
(ii)strategies previously used to reduce the use of mechanical restraint on, or seclusion of, the relevant patient; and
(iii)the effectiveness of the strategies mentioned in subparagraph (ii); and
(c)information about the strategies proposed to reduce, and eliminate, the use of mechanical restraint on, or seclusion of, the relevant patient in the future.

266Application for chief psychiatrist’s approval of plan

An authorised doctor may apply to the chief psychiatrist for approval of a reduction and elimination plan for a relevant patient.

267Chief psychiatrist may approve plan

(1)The chief psychiatrist may approve the reduction and elimination plan for the relevant patient if the chief psychiatrist is satisfied the strategies mentioned in section 265 (c) are appropriate for the relevant patient.
(2)The approval must be in writing and may include any conditions the chief psychiatrist considers appropriate.

Part 5 Physical restraint and clinical need for medication

Division 1 Physical restraint

268Meaning of physical restraint

(1)Physical restraint, of a patient, is the use by a person of his or her body to restrict the patient’s movement.
(2)However, physical restraint of a patient does not include—
(a)the giving of physical support or assistance reasonably necessary—
(i)to enable the patient to carry out daily living activities; or
(ii)to redirect the patient because the patient is disoriented; or
(b)physical restraint of the patient that is authorised under a law other than this part; or
(c)physical restraint of the patient that is required in urgent circumstances.

269Offence

A person must not use physical restraint on a patient other than under this Act.

Maximum penalty—200 penalty units.

270Requirements for use of physical restraint

An authorised doctor, or a health practitioner in charge of an inpatient unit or other unit within an authorised mental health service, may authorise the use of physical restraint on a patient for 1 or more of the following purposes if there is no other reasonably practicable way to achieve the purpose—
(a)to protect the patient or others from physical harm;
(b)to provide treatment and care to the patient;
(c)to prevent the patient from causing serious damage to property;
(d)for a patient detained in an authorised mental health service—to prevent the patient from leaving the service.

Division 2 Clinical need for medication

271Meaning of medication

Medication, of a patient, includes sedation of the patient.

272Offence

(1)A person must not administer medication to a patient unless the medication is clinically necessary for the patient’s treatment and care for a medical condition.

Maximum penalty—200 penalty units.

(2)Subsection (1) does not limit section 374 .
(3)To remove any doubt, it is declared that, for subsection (1) , a patient’s treatment and care for a medical condition includes preventing imminent serious harm to the patient or others.

Part 6 Miscellaneous

273Chief psychiatrist must make policy

(1)The chief psychiatrist must make a policy (the restraint, seclusion and other practices policy) about—
(a)the use of mechanical restraint, seclusion and physical restraint under section 268 (1), and the appropriate use of medication, including ways of minimising any adverse impacts on patients; and
(b)the information to be recorded relating to the use on patients of mechanical restraint, seclusion, physical restraint under section 268 (1) and medication; and
(c)the information to be given to the chief psychiatrist relating to the use on patients of mechanical restraint, seclusion, physical restraint under section 268 (1) and medication; and
(d)the information to be given to the public guardian relating to the use on patients, who are minors, of mechanical restraint, seclusion and physical restraint; and
(e)the time and way in which the information mentioned in paragraph (c) is to be given to the chief psychiatrist; and
(f)the time and way in which the information mentioned in paragraph (d) is to be given to the public guardian.
(2)An authorised doctor, authorised mental health practitioner, administrator of an authorised mental health service or other person performing a function or exercising a power under this Act must comply with the restraint, seclusion and other practices policy.

274Obligation to notify public guardian of treatment of minors

(1)This section applies if mechanical restraint, seclusion or physical restraint is used in an authorised mental health service on a patient who is a minor.
(2)The administrator of the authorised mental health service must give to the public guardian, in the required time and way, the required information about the use of the mechanical restraint, seclusion or physical restraint on the minor.
(3)The administrator of an authorised mental health service may enter into arrangements with the chief psychiatrist for the giving of the required information, on behalf of the administrator, to the public guardian.
(4)This section does not limit an obligation of the administrator, under the restraint, seclusion and other practices policy, to give information to the chief psychiatrist.

Chapter 9 Rights of patients and others

Part 1 Preliminary

275Purpose of ch 9

The purpose of this chapter is to provide for—
(a)a statement of rights; and
(b)the right of a patient to be visited by the patient’s nominated support persons, family, carers and other support persons; and
(c)the right of a patient to be visited by a health practitioner, and legal or other advisers, and to communicate with other persons; and
(d)the right of a patient to be given oral explanations of the patient’s treatment and care; and
(e)the giving of written notices to a patient’s nominated support persons, family, carers and other support persons; and
(f)the right for a second opinion to be obtained about a patient’s treatment and care; and
(g)the roles and responsibilities of a patient’s nominated support persons, family, carers and other support persons when supporting the patient’s treatment and care; and
(h)the appointment and functions of independent patient rights advisers.

276Definition for ch 9

In this chapter—

patient means—
(a)an involuntary patient; or
(b)a person receiving treatment and care for a mental illness in an authorised mental health service, other than as an involuntary patient, including a person receiving treatment and care under an advance health directive or with the consent of a personal guardian or attorney.

Part 2 Statement of rights

277Preparing statement of rights

(1)The chief psychiatrist must prepare a written statement (the statement of rights) containing information about—
(a)the rights of patients, and of nominated support persons, family, carers and other support persons, under this Act; and
(b)the rights of patients to make complaints about the treatment and care provided at an authorised mental health service and how complaints are made.
(2)The statement of rights may also contain anything else the chief psychiatrist considers appropriate.

278Giving statement of rights to patients and others

After admission of a patient to an authorised mental health service, the administrator of the authorised mental health service must ensure—
(a)the statement of rights is explained to the patient; and
(b)a copy of the statement of rights is given to the patient, if requested; and
(c)a copy of the statement of rights is given to the patient’s nominated support person, family, carers and other support persons, if requested.

s 278 amd 2017 No. 3s 24

279Display of signs

(1)The administrator of an authorised mental health service must display signs in prominent positions in the service stating that a copy of the statement of rights is available on request.
(2)The signs must be easily visible to patients and nominated support persons, family, carers and other support persons.

Part 3 Rights of patients

280Definition for pt 3

In this part—

reasonable time of the day or night, in relation to an authorised mental health service, means a time decided by the administrator of the service having regard to the practices of the service and the comfort of patients.

281Visits by nominated support persons, family, carers and other support persons

(1)A patient in an authorised mental health service may be visited by the patient’s nominated support persons, family, carers and other support persons at any reasonable time of the day or night.
(2)Subsection (1) does not apply if—
(a)the person is excluded from visiting the patient under another provision of this Act; or
(b)the patient does not wish to be visited by the person.

282Visits by health practitioners

(1)A patient in an authorised mental health service may be visited and examined by a health practitioner at any reasonable time of the day or night.
(2)The health practitioner may also consult with an authorised doctor for the authorised mental health service about the patient’s treatment and care.
(3)The health practitioner may exercise a power under subsection (1) or (2) only—
(a)if asked by the patient or 1 or more of the patient’s nominated support persons, family, carers or other support persons; and
(b)under arrangements made with the administrator of the authorised mental health service.

283Visits by legal or other advisers

(1)A patient in an authorised mental health service may be visited by a legal or other adviser at any reasonable time of the day or night.
(2)The adviser may exercise a power under subsection (1) only—
(a)if asked by the patient or 1 or more of the patient’s nominated support persons, family, carers or other support persons; and
(b)under arrangements made with the administrator of the authorised mental health service.

284Communication with others

(1)A patient of an authorised mental health service may communicate, in a reasonable way, with another person by—
(a)post; or

Note—

See sections 385 and 386 for provisions relating to postal articles.
(b)a fixed line telephone in the authorised mental health service; or
(c)a mobile telephone or other electronic communication device.
(2)Subsection (1) does not apply if—
(a)the other person has asked the administrator of the authorised mental health service to ensure the patient does not communicate with the person; or
(b)the communication is prohibited under another provision of this Act.
(3)The administrator of an authorised mental health service may prohibit or restrict a patient from communicating in the way mentioned in subsection (1) (b) or (c) if communicating in the way is likely to be detrimental to the health or wellbeing of the person or others.
(4)In exercising a power under subsection (3) , the administrator must have regard to the privacy of the patient and others in the service.

285Information about treatment and care

An authorised doctor providing treatment and care to a patient must, to the extent practicable, provide timely, accurate and appropriate information to the patient about the treatment and care.

286Understanding of oral information

(1)This section applies if a provision of this Act requires any of the following persons to tell or explain something to, or discuss something with, a patient—
(a)an authorised mental health practitioner;
(b)an authorised doctor, including an authorised psychiatrist;
(c)a doctor;
(d)the administrator of an authorised mental health service;
(e)an authorised person transporting a person to an authorised mental health service or public sector health service facility under section 366 .
(2)The person must—
(a)take reasonable steps to ensure the patient understands the information; and
(b)tell or explain the thing to, or discuss the thing with, the patient—
(i)in an appropriate way having regard to the patient’s age, culture, mental illness, ability to communicate and any disability; and

Examples for subparagraph (i)—

1If a patient is acutely unwell and does not appear to understand the information given, an authorised doctor may explain the information again when the patient’s condition improves.
2After providing information to a patient, an authorised doctor may ask the patient to restate the information to ensure it has been understood.
3An authorised doctor may explain information to a patient in the presence of a family member who can help the patient understand it.
(ii)in a way the patient is most likely to understand, including, for example, in the patient’s language; and
(c)if the patient has a nominated support person—tell or explain the thing to, or discuss the thing with, the patient’s nominated support person; and
(d)if the patient does not have a nominated support person—tell or explain the thing to, or discuss the thing with, 1 or more of the patient’s family, carers or other support persons.
(3)For subsection (2) (b), the person may tell or explain the thing to, or discuss the thing with, a patient at a time later than the time provided for under this Act if the person considers the patient would better understand the thing at the later time.
(4)In this section—

patient includes a person who may become a patient.

287Written notices to be given to nominated support persons and others

(1)This section applies if—
(a)a provision of this Act requires any of the following persons to give a written notice to a patient—
(i)an authorised doctor;
(ii)the administrator of an authorised mental health service;
(iii)the chief psychiatrist;
(iv)the tribunal; or
(b)any of the following events (each a significant event) happens to a patient—
(i)admission to an authorised mental health service as a classified patient;
(ii)responsibility for the patient is transferred under chapter 11 , part 5 from an authorised mental health service to another entity.
(2)If the patient has a nominated support person—
(a)for a written notice mentioned in subsection (1) (a)—
(i)the person must give a copy of the required written notice to the nominated support person; and
(ii)the person is not required to give the notice to the patient if the patient may not understand or benefit from receiving the notice; and
(b)for a significant event mentioned in subsection (1) (b)—the administrator of the authorised mental health service must give a copy of the required written notice to the nominated support person.
(3)If the person giving a required written notice to a patient is aware the patient has a personal guardian or attorney—
(a)the person must give a copy of the required written notice to the personal guardian or attorney; and
(b)for a written notice mentioned in subsection (1) (a)—the person is not required to give the notice to the patient if the patient may not understand or benefit from receiving the notice.
(4)If the patient does not have a nominated support person, or a personal guardian or attorney, the person may give the required written notice to 1 or more of the patient’s family, carers or other support persons (the other person) as well as, or instead of, to the patient if—
(a)the patient may not understand or benefit from receiving the notice; and
(b)giving the notice to the other person appears to be in the patient’s best interests; and
(c)the patient has not asked for communication with the other person not to happen.
(5)If the patient is a minor, the person may give the required written notice to 1 or more of the minor’s parents as well as, or instead of, to the minor if—
(a)the minor may not understand or benefit from receiving the notice; and
(b)giving the notice to the parent appears to be in the minor’s best interests.
(6)In this section—
required written notice means—
(a)a written notice mentioned in subsection (1) (a); or
(b)a written notice explaining the significant event mentioned in subsection (1) (b).

288Communication about patient with others

(1)This section applies if a provision of this Act requires a person to tell or explain something to, or discuss something with, a patient’s nominated support persons, family, carers or other support persons.
(2)The provision does not apply if—
(a)the patient requests, at a time when the patient has capacity to make the request, that the communication not take place; or
(b)the person is not readily available or willing for the communication to take place; or

Example—

the person is not willing to visit the patient in hospital while the patient is receiving treatment and care
(c)the communication with the person is likely to be detrimental to the patient’s health and wellbeing.

Example—

the person has previously disrupted the patient’s treatment and care resulting in the patient’s condition deteriorating
(3)In this section—
capacity, of a patient to make a request, means the patient has the ability to—
(a)understand the nature and effect of the request; and
(b)make and communicate the request.
patient includes a person who may become a patient.

289Disclosure of confidential information under Hospital and Health Boards Act not limited

(1)This section applies if a provision of this Act requires or permits information about a person to be given to the person’s nominated support persons, family, carers or other support persons.
(2)The provision does not limit the Hospital and Health Boards Act 2011 , sections 144 , 145 or 146.

Note—

The Hospital and Health Boards Act 2011 , sections 144 , 145 and 146 provide for a person’s family, carers and other support persons to receive information about the person in particular circumstances.

290Second opinion about treatment and care

(1)This section applies if an authorised mental health service has been unable to resolve a complaint about the provision of treatment and care to a patient.
(2)The patient, or an interested person for the patient, may request the administrator of the service to obtain a second opinion from another health practitioner, including another psychiatrist, about the patient’s treatment and care.
(3)The administrator must make arrangements to obtain the second opinion—
(a)from a health practitioner who is independent of the patient’s treating team; and
(b)in the way required under a policy or practice guideline.

Part 4 Roles and responsibilities of nominated support persons, family, carers and other support persons

291Roles

A patient’s nominated support persons, family, carers and other support persons, subject to this or another Act, may—
(a)contact the patient while the patient is receiving treatment and care; and
(b)participate in decisions about the patient’s treatment and care, including by being consulted by health practitioners about treatment options; and
(c)receive timely, accurate and appropriate information about the patient’s treatment, care, support, rehabilitation and recovery; and
(d)arrange support services for the patient, including, for example, counselling, community care and respite care.

292Responsibilities

A patient’s nominated support persons, family, carers and other support persons have a responsibility to—
(a)respect the patient’s dignity and humanity; and
(b)consider the opinions and skills of health practitioners who provide treatment and care, and other services, to the patient; and
(c)cooperate, to the extent practicable, with reasonable programs of assessment, treatment, care, support, rehabilitation and recovery of the patient.

Part 5 Independent patient rights advisers

293Appointment

(1)An authorised mental health service must have systems in place to ensure that patients are advised of their rights under this Act.
(2)Without limiting subsection (1) , the health service chief executive responsible for a public sector mental health service must appoint 1 or more independent patient rights advisers in the way required under a policy or practice guideline.
(3)An independent patient rights adviser may be—
(a)an employee of an entity that a Hospital and Health Service has engaged to provide services; or
(b)an employee of a Hospital and Health Service but not employed in the Service’s mental health service.

294Functions

The functions of an independent patient rights adviser are to—
(a)ensure that a patient, and the patient’s nominated support persons, family, carers and other support persons are advised of their rights and responsibilities under this Act; and
(b)help the patient, and the patient’s nominated support persons, family, carers and other support persons to communicate to health practitioners the patient’s views, wishes and preferences about the patient’s treatment and care; and
(c)work cooperatively with community visitors performing functions under the Public Guardian Act 2014 ; and
(d)consult with authorised mental health practitioners, authorised doctors, administrators of authorised mental health services, and the chief psychiatrist on the rights of patients under this Act, the Guardianship and Administration Act 2000 , the Powers of Attorney Act 1998 and other laws; and
(e)in relation to tribunal hearings—
(i)advise the patient, and the patient’s nominated support persons, family, carers and other support persons of the patient’s rights at the hearings; and
(ii)if requested, help the patient engage a representative for the hearings; and
(f)identify whether the patient has a personal guardian or attorney and, if the patient has a personal guardian or attorney, work cooperatively with the personal guardian or attorney to further the patient’s interests; and
(g)if appropriate, advise the patient of the benefits of an advance health directive or enduring power of attorney for a personal matter.

295Independence

An independent patient rights adviser, in performing the adviser’s functions—
(a)must act independently and impartially; and
(b)is not subject to direction or control by any person in relation to advice given, or help provided, to a patient or a patient’s nominated support persons, family, carers or other support persons.

Chapter 10 Chief psychiatrist

Part 1 Preliminary

296Purpose of ch 10

The purpose of this chapter is to provide for—
(a)the appointment, functions and powers of the chief psychiatrist; and
(b)the making of policies and practice guidelines, and the preparation of the annual report, by the chief psychiatrist; and
(c)the investigation of matters by the chief psychiatrist; and
(d)the actions the chief psychiatrist may take if there is a serious risk to persons or public safety because of a forensic patient who is the responsibility of an authorised mental health service; and
(e)the giving by the chief psychiatrist of particular information to victims of unlawful acts committed by particular patients, and other persons affected by the unlawful acts.

297Definition for ch 10

In this chapter—

patient means—
(a)an involuntary patient; or
(b)a person receiving treatment and care for a mental illness in an authorised mental health service, other than as an involuntary patient, including a person receiving treatment and care under an advance health directive or with the consent of a personal guardian or attorney.

Part 2 Appointment, functions and powers

298Appointment

(1)There is a Chief Psychiatrist.
(2)The chief psychiatrist is appointed by the Governor in Council under this Act and not the Public Service Act 2008 .
(3)The chief psychiatrist must be a psychiatrist.

299Resignation

The chief psychiatrist may resign by signed notice given to the Minister.

300Termination of appointment

(1)The Governor in Council may terminate the appointment of the chief psychiatrist if the Governor in Council is satisfied the chief psychiatrist—
(a)has become incapable of satisfactorily performing the chief psychiatrist’s functions; or
(b)has performed the chief psychiatrist’s functions carelessly, incompetently or inefficiently; or
(c)has been guilty of misconduct that could warrant dismissal from the public service if the chief psychiatrist were a public service officer.
(2)The Governor in Council must terminate the appointment of the chief psychiatrist if the chief psychiatrist—
(a)is no longer eligible for appointment as the chief psychiatrist; or
(b)is convicted of an indictable offence.

301Functions and powers

(1)The chief psychiatrist has the following functions—
(a)to the extent practicable, ensuring the protection of the rights of patients under this Act while balancing their rights with the rights of others;
(b)to the extent practicable, ensuring the involuntary examination, assessment, treatment, care and detention of persons under this Act complies with this Act;
(c)facilitating the proper and efficient administration of this Act;
(d)monitoring and auditing compliance with this Act;
(e)promoting community awareness and understanding of this Act;
(f)advising and reporting to the Minister on any matter relating to the administration of this Act—
(i)on the chief psychiatrist’s own initiative; or
(ii)on the written request of the Minister;
(g)preparing and giving to the Minister a report on the competencies the chief psychiatrist considers necessary for a health practitioner to perform a function or exercise a power of an authorised doctor.
(2)Also, the chief psychiatrist has the functions and powers given to the chief psychiatrist under this or another Act.
(3)Also, the chief psychiatrist may do all things necessary or convenient to be done to perform the chief psychiatrist’s functions.

302Independence of chief psychiatrist

(1)In performing a function or exercising a power, the chief psychiatrist is not under the control of the Minister or another person.
(2)Despite subsection (1), the Minister may give the chief psychiatrist a direction under section 312.

303Delegation

(1)The chief psychiatrist may delegate a function of the chief psychiatrist to an appropriately qualified—
(a)public service employee in the department; or
(b)health service employee.
(2)Despite subsection (1), the chief psychiatrist may delegate a function of the chief psychiatrist under a prescribed provision only to an appropriately qualified—
(a)senior executive employed in the department; or
(b)health executive employed by a Hospital and Health Service.
(3)In this section—
function includes a power.
prescribed provision means—
(a)part 3; or
(b)section 313(2)(a) or (b); or
(c)chapter 11, part 2; or
(d)section 332.

304Power to require administrator to give documents or information

(1)For the performance of the chief psychiatrist’s functions, the chief psychiatrist may, by written notice, require the administrator of an authorised mental health service to give to the chief psychiatrist—
(a)a stated document (including a health record), or a copy of a stated document, about a patient receiving treatment and care in the service or another document relevant to the performance of the chief psychiatrist’s functions; or
(b)stated information about—
(i)a patient who has been examined or assessed, or is being examined or assessed, in the service; or
(ii)a patient who has received, or is receiving, treatment in the service; or
(iii)another matter relevant to the performance of the chief psychiatrist’s functions.
(2)The notice must state the day (the stated day) on which the document, record or information is to be given.
(3)The stated day must be a reasonable time after the notice is given.
(4)The administrator must comply with the notice.
(5)If a document is given to the chief psychiatrist, the chief psychiatrist—
(a)may inspect it and make copies of, or take extracts from, the document if it is relevant to the performance of the chief psychiatrist’s functions; and
(b)for an original document—must return it to the administrator within a reasonable time after it is given.

Part 3 Policies, practice guidelines and annual report

305Making policies or practice guidelines

(1)The chief psychiatrist must make a policy about each of the following—
(a)the application of the treatment criteria to patients and less restrictive ways for patients to receive treatment and care for their mental illness, including ways of assessing the capacity of patients to consent to being treated and whether the capacity is stable;
(b)the way in which records for patients are to be kept;
(c)the management of complaints by patients and their nominated support persons, family, carers and other support persons in relation to the treatment and care of patients;
(d)the way in which patients and interested persons for patients may request the administrator of an authorised mental health service to obtain a second opinion about the treatment and care of the patient;
(e)the treatment and care of forensic patients and the assessment and management of risks relating to forensic patients receiving treatment in the community;
(f)without limiting paragraph (e), the treatment and care of forensic patients whose forensic order was made on a reference in relation to a prescribed offence allegedly committed by the person, and the assessment and management of risks relating to those forensic patients receiving treatment in the community;
(g)the treatment and care of persons subject to treatment support orders;
(h)the minimisation of the risk of patients absconding and processes to be followed in returning patients who have absconded;
(i)the competencies necessary for a person to be an authorised doctor or authorised mental health practitioner.

Note—

See section 273 for the obligation of the chief psychiatrist to make the restraint, seclusion and other practices policy.
(2)Also, the chief psychiatrist may make a policy or practice guideline relating to the administration of this Act, including, for example, about the following—
(a)the examination and assessment of persons under this Act;
(b)the treatment and care of patients in authorised mental health services, other than forensic patients or patients subject to treatment support orders;
(c)the performance of functions, or exercise of powers, by administrators of authorised mental health services, authorised doctors or authorised mental health practitioners;
(d)the administration of authorised mental health services, including safety and security;
(e)the preparation of psychiatrist reports and second psychiatrist reports;
(f)the way in which the tribunal is to be supported in performing its functions, including, for example, providing facilities for proceedings;
(g)the authorisation of treatment in the community;
(h)supporting the rights of patients and their nominated support persons, family, carers and other support persons, including the ways in which information is to be communicated to the patients and their support persons;
(i)the appointment and functions of independent patient rights advisers;
(j)the support of victims of unlawful acts, close relatives of the victims, and other persons affected by unlawful acts;
(k)the way in which the chief psychiatrist is to be notified of matters under this Act;
(l)the information to be recorded or given to the chief psychiatrist about—
(i)the treatment and care of patients under this Act; and
(ii)critical incidents relating to patients, including the death of a patient.
(3)An authorised doctor, authorised mental health practitioner, administrator of an authorised mental health service, or other person performing a function or exercising a power under this Act must comply with a policy or practice guideline.
(4)If a policy or practice guideline is inconsistent with this Act, the policy or practice guideline is invalid to the extent of the inconsistency.

306Publication of policies and practice guidelines

(1)As soon as practicable after making a policy or practice guideline, the chief psychiatrist must—
(a)make the policy or practice guideline publicly available; and

Example of making a policy or practice guideline publicly available—

publication on a website
(b)give a copy of the policy or practice guideline to the administrator of each authorised mental health service.
(2)If a person in an authorised mental health service is required to comply with a policy or practice guideline, the administrator of the service must take reasonable steps to ensure the policy or practice guideline is available to the person.
(3)Also, the administrator of an authorised mental health service must ensure a policy or practice guideline relevant to the service is given effect.

307Annual report

(1)Within 90 days after the end of each financial year, the chief psychiatrist must give the Minister a report on the administration of this Act during the year.
(2)The report must include the following information for the financial year to which the report relates—
(a)a summary of key developments in the administration of this Act;
(b)statistical data, generally and for each authorised mental health service, about the following—
(i)the making of examination authorities;
(ii)the making of recommendations for assessment and transfer recommendations;
(iii)the making and revocation of treatment authorities;
(iv)the preparation of psychiatrist reports and second psychiatrist reports;
(v)the making and revocation of forensic orders and treatment support orders;
(vi)the use of mechanical restraint and seclusion;
(vii)actions taken under part 5 in relation to serious risks to persons or public safety;
(viii)information notices given under part 6;
(c)the number of forensic patients who absconded from each authorised mental health service;
(d)the details of the appointments of independent patient rights advisers;
(e)information about compliance with the restraint, seclusion and other practices policy;
(f)details of directions given, and actions taken, under section 310(1) in relation to recommendations included in an investigation report;
(g)details of directions given under section 312 by the Minister to the chief psychiatrist.
(3)The report may state any other information the chief psychiatrist considers appropriate.
(4)The Minister must table a copy of the report in the Legislative Assembly within 14 days after the Minister receives it.

Part 4 Investigations

308Chief psychiatrist may investigate

(1)The chief psychiatrist may, for the purpose of performing the chief psychiatrist’s functions—
(a)investigate a matter; or
(b)direct an inspector to investigate a matter.

Note—

See section 555 (2) for appointment of an inspector to investigate a matter under this part.
(2)An investigation must be completed as quickly as is reasonable in all the circumstances.
(3)The chief psychiatrist or inspector may exercise the powers under chapter 14 for the purpose of the investigation.
(4)To remove any doubt, it is declared that an investigation under subsection (1) may include an investigation about any matter relating to the treatment and care of any patient in an authorised mental health service.

309Investigation report

(1)After completing an investigation, the chief psychiatrist, or an inspector investigating the matter, must prepare a report on the investigation (an investigation report).
(2)The investigation report may include recommendations relating to the improvement of the operation of an authorised mental health service.
(3)The chief psychiatrist may give a copy of the investigation report to a person or entity the subject of the investigation.

310Recommendations for improvement

(1)If an investigation report includes recommendations relating to the improvement of the operation of an authorised mental health service, the chief psychiatrist may, by written notice, direct the administrator of the service to—
(a)take action, or particular action, to address the recommendations; and
(b)report to the chief psychiatrist about the action taken to address the recommendations.
(2)However, before giving the notice, the chief psychiatrist must—
(a)give the administrator a written notice (a show cause notice) stating the following—
(i)that the chief psychiatrist proposes to direct the administrator to take action, or particular action, to address recommendations included in an investigation report (the proposed action);
(ii)the grounds for the proposed action;
(iii)the facts and circumstances forming the basis for the grounds;
(iv)that the administrator may make submissions about the show cause notice to the chief psychiatrist;
(v)the date by which the submission must be made; and
(b)consider any submissions given in response to the show cause notice.
(3)The administrator must comply with a notice under subsection (1) unless the administrator has a reasonable excuse.

Part 5 Serious risks to persons or public safety

311Purpose of pt 5

This purpose of this part is to provide for the actions the chief psychiatrist may take in relation to a forensic patient for whom an authorised mental health service is responsible (a relevant forensic patient) if there is a serious risk to the life, health or safety of a person or to public safety because of a matter relating to the relevant forensic patient.

312Minister may direct chief psychiatrist to review matter

(1)This section applies if the Minister considers—
(a)a matter has arisen in relation to 1 or more relevant forensic patients; and
(b)there is a serious risk to the life, health or safety of a person or to public safety because of the matter.
(2)The Minister may direct the chief psychiatrist to—
(a)immediately review the matter and serious risk to decide—
(i)whether action is necessary to remove, or to control or manage, the risk; and
(ii)whether there are systemic issues that need to be addressed to remove the risk; and
(b)consider taking action under section 313(2) to address the matter and stop the serious risk recurring; and
(c)report to the Minister—
(i)on the outcome of the review; and
(ii)if action is taken as a result of the review—on the action taken.
(3)To remove any doubt, it is declared that the Minister’s power under this section—
(a)is limited to directing the chief psychiatrist to do a thing mentioned in subsection (2)(a), (b) or (c); and
(b)does not allow the Minister to direct the chief psychiatrist to take action, or any particular action, in relation to the matter or serious risk.

313Actions chief psychiatrist may take

(1)This section applies—
(a)if the chief psychiatrist considers—
(i)a matter has arisen in relation to 1 or more relevant forensic patients; and
(ii)there is a serious risk to the life, health or safety of a person or to public safety because of the matter; and
(b)whether or not a direction has been given to the chief psychiatrist about the matter or risk under section 312.
(2)The chief psychiatrist may do any of the following—
(a)order the suspension of limited community treatment for a relevant forensic patient, or each member of a class of relevant forensic patients, for a stated period of not more than 7 days;
(b)order the category of the forensic order for a relevant forensic patient, or each member of a class of relevant forensic patients, to be changed to inpatient for a stated period of not more than 7 days;
(c)order an administrator of an authorised mental health service to report to the chief psychiatrist on the circumstances that led to the matter and serious risk;
(d)review, or order an administrator of an authorised mental health service to review and report to the chief psychiatrist on, any treatment and care provided to a relevant forensic patient or class of relevant forensic patients to the extent it relates to the matter or serious risk or a similar matter or serious risk that might arise in the future;
(e)review any policies or practice guidelines about treatment in the community;
(f)take any other action necessary to prevent a similar matter or serious risk arising.
(3)Before making an order under subsection (2)(a) or (b), the chief psychiatrist must consult with the administrator of each authorised mental health service likely to be affected by the order about the likely effect of the order on—
(a)the operations of the authorised mental health service; and
(b)the relevant forensic patients proposed to be subject to the order.

314Chief psychiatrist’s order

(1)This section applies if the chief psychiatrist makes an order under section 313(2)(a) or (b) in relation to a relevant forensic patient or class of relevant forensic patients.
(2)The chief psychiatrist’s order must include the following—
(a)if the order relates to a particular relevant forensic patient—the name of the patient;
(b)if the order relates to a class of relevant forensic patients—sufficient details to identify the class;

Example of a class of relevant forensic patients for paragraph (b)—

all relevant forensic patients in an inpatient unit of a particular authorised mental health service who are receiving limited community treatment
(c)if the order is made under section 313(2)(a)—the period of the suspension of limited community treatment;
(d)if the order is made under section 313(2)(b)—the period for which the category of the forensic order is changed to inpatient;
(e)if the order requires a relevant forensic patient, or each member of a class of relevant forensic patients, to return to an authorised mental health service—the name of the service and the time or date by which the patient must return to the service.
(3)For subsection (2)(e), the order may state an authorised mental health service other than the patient’s treating health service.
(4)The chief psychiatrist must give each relevant forensic patient subject to the order a copy of the order and a written notice stating—
(a)that the patient may appeal to the tribunal against the chief psychiatrist’s decision to make the order; and
(b)the period within which the patient may appeal to the tribunal; and
(c)how the appeal is made.

315Chief psychiatrist may vary period or end order

(1)The chief psychiatrist may, for an order made under section 313(2)(a) or (b), at any time while the order is in force—
(a)extend, or further extend, the stated period for a period of not more than 7 days if the chief psychiatrist is satisfied the matter or serious risk for which the order was made still exists; or
(b)end the order.
(2)The chief psychiatrist must give written notice of an extension of the stated period, or the ending of the order, to each relevant forensic patient subject to the order.
(3)If the chief psychiatrist decides to extend the stated period, the notice must state—
(a)that the patient may appeal to the tribunal against the chief psychiatrist’s decision to extend the period; and
(b)the period within which the patient may appeal to the tribunal; and
(c)how the appeal is made.

Part 6 Information notices

Division 1 Preliminary

316Purpose of pt 6

The purpose of this part is to provide for victims of unlawful acts committed by relevant patients, and other persons affected by the unlawful act, to obtain particular information about the relevant patient.

Note—

See section 327 for the application of this part to forensic disability clients.

317Definitions for pt 6

In this part—
applicant’s nominee see section 318(2)(b).
information notice, relating to a relevant patient, is a notice that entitles the applicant for the notice, or the applicant’s nominee, to receive information mentioned in schedule 1 about the relevant patient from the chief psychiatrist.
relevant patient means a patient of an authorised mental health service who is subject to—
(a)a forensic order; or
(b)a treatment support order.

Division 2 Application, amendment and revocation

318Application

(1)An application for an information notice relating to a relevant patient may be made to the chief psychiatrist by—
(a)a victim of the relevant unlawful act in relation to the relevant patient’s forensic order or treatment support order; or
(b)a close relative of a victim mentioned in paragraph (a); or
(c)another individual who—
(i)has suffered harm because of the relevant unlawful act in relation to the relevant patient’s forensic order or treatment support order; and
(ii)has a sufficient personal interest in receiving information under the notice about the relevant patient.
(2)The application must—
(a)be in the approved form; and
(b)state whether the applicant, or another person (the applicant’s nominee), will be entitled to receive information under the notice; and
(c)be accompanied by a statutory declaration by the applicant and the applicant’s nominee, if any, that the applicant or applicant’s nominee will not publish information received under the notice in contravention of section 326.

319Decision on application

(1)The chief psychiatrist must decide to approve or refuse to approve the application—
(a)if the application is made by an applicant mentioned in section 318(1)(a) or (b)—within 14 days after receiving the application; or
(b)otherwise—within 28 days after receiving the application.
(2)The chief psychiatrist may refuse to approve the application if the chief psychiatrist is satisfied—
(a)the application is frivolous or vexatious; or
(b)for an application made under section 318(1)(c)—the applicant is not an individual mentioned in section 318(1)(c); or
(c)disclosure of information under the notice is likely to—
(i)result in serious harm to the relevant patient’s health or welfare; or
(ii)put the safety of the relevant patient or someone else at serious risk; or
(d)a previous information notice obtained by the applicant was revoked under section 323(1)(b).
(3)For subsection (2)(b), in deciding whether the applicant has a sufficient personal interest in receiving information under the notice, the chief psychiatrist must have regard to the following matters—
(a)whether the relevant patient is a risk to the safety and welfare of the person;
(b)whether it is likely the relevant patient will come into contact with the person;
(c)the nature of the relevant unlawful act in relation to the relevant patient’s forensic order or treatment support order.
(4)Also, if the application states that the applicant’s nominee will be entitled to receive information under the notice, the chief psychiatrist must not approve the application unless the chief psychiatrist is satisfied the nominee is suitable to receive the information.
(5)The chief psychiatrist must give the applicant written notice of the decision within 7 days after making it.
(6)If the decision is to approve the application, the written notice must state—
(a)the name of the person entitled to receive information under the information notice; and
(b)if the person entitled to receive information under the information notice is the applicant’s nominee—that the nominee is entitled to receive the information only for the purpose of providing the information to the applicant.
(7)If the decision is to refuse to approve the application, the written notice must state—
(a)the reasons for the decision; and
(b)that the applicant may appeal to the tribunal against the decision within 28 days after the applicant receives the notice; and
(c)how the appeal is made.

320Right to receive information under notice

(1)This section applies if a person is entitled to receive information about a relevant patient under an information notice.
(2)The chief psychiatrist must ensure the person receives the information mentioned in schedule 1 about the relevant patient.
(3)The information must be given to the person—
(a)for information mentioned in schedule 1 , section 5—as soon as practicable after the chief psychiatrist becomes aware of the information; or
(b)otherwise—within 14 days after the chief psychiatrist becomes aware of the information.
(4)However, the chief psychiatrist must not disclose under subsection (2)—
(a)details about the specific treatment and care provided to the relevant patient, including, for example, the type of medication being given to the relevant patient; or
(b)the address of a place in the community at which the relevant patient is living.
(5)The chief psychiatrist may enter into arrangements with a victim support service to enable the service, on behalf of the chief psychiatrist, to give the information to the person.

321Amendment of notice to change applicant’s nominee

(1)A person who is entitled to receive information about a relevant patient under an information notice may apply to the chief psychiatrist to amend the notice by adding, or changing, the applicant’s nominee.
(2)The application must be in the approved form and be accompanied by—
(a)the name of the applicant’s proposed nominee; and
(b)a statutory declaration by the nominee stating that the nominee will not publish information received under the notice in contravention of section 326.
(3)The chief psychiatrist must decide to approve or refuse to approve the application within 14 days after receiving the application.
(4)The chief psychiatrist must approve the application if the chief psychiatrist is satisfied the nominee is suitable to receive information under the notice.
(5)The chief psychiatrist must give the applicant notice of the decision within 7 days after making it.
(6)If the decision is to approve the application, the chief psychiatrist must give the applicant an amended information notice.
(7)If the decision is to refuse to approve the application, the notice must state—
(a)the reasons for the decision; and
(b)that the applicant may appeal to the tribunal against the decision within 28 days after the applicant receives the notice; and
(c)how the appeal is made.

322Mandatory revocation

(1)The chief psychiatrist must revoke an information notice relating to a relevant patient if—
(a)the tribunal revokes the relevant patient’s forensic order and a treatment support order is not made for the patient; or
(b)the tribunal revokes the relevant patient’s treatment support order; or
(c)the relevant patient’s order ends in a way other than by revocation by—
(i)the Mental Health Court under section 166 (2)(b) or 167A(2)(b); or
(ii)the tribunal; or
(d)the person entitled to receive information under the notice asks the chief psychiatrist to revoke the notice; or
(e)the chief psychiatrist is satisfied disclosure of information under the notice is likely to—
(i)result in serious harm to the relevant patient’s health or welfare; or
(ii)put the safety of the relevant patient or someone else at serious risk; or
(f)subject to subsection (5), the relevant patient has been transferred under chapter 12, part 10, division 2 to an interstate mental health service.
(2)The chief psychiatrist must give written notice of the decision to revoke the information notice to the person entitled to receive information under the notice within 7 days after the decision is made.
(3)The written notice must state—
(a)the reasons for the decision; and
(b)that the person may appeal to the tribunal against the decision within 28 days after the person receives the notice; and
(c)how the appeal is made.
(4)Despite subsection (1), if the relevant patient’s forensic order or treatment support order is revoked as mentioned in subsection (1)(a) or (b) and is reinstated on appeal—
(a)the information notice is reinstated on the day the forensic order or treatment support order is reinstated; and
(b)the chief psychiatrist must give notice of the reinstatement of the information notice to the person entitled to receive information under the notice within 7 days after the reinstatement.
(5)Despite subsection (1), if the relevant patient returns to Queensland before the patient’s forensic order or treatment support order ends under section 528—
(a)the information notice is reinstated on the day the relevant patient returns to Queensland; and
(b)the chief psychiatrist must give notice of the reinstatement of the information notice to the person entitled to receive information under the notice within 7 days after the reinstatement.

s 322 amd 2017 No. 3s 25

323Discretionary revocation

(1)The chief psychiatrist may revoke an information notice relating to a relevant patient if—
(a)the chief psychiatrist is unable, after making reasonable efforts, to locate the person entitled to receive information under the notice; or
(b)the person entitled to receive information under the notice has contravened section 326.
(2)However, before revoking an information notice under subsection (1)(b), the chief psychiatrist must give the person a reasonable opportunity to make a submission to the chief psychiatrist about why the notice should not be revoked.
(3)The chief psychiatrist must give written notice of the decision to revoke the information notice to the person entitled to receive information under the notice within 7 days after making it.
(4)The written notice must state—
(a)the reasons for the decision; and
(b)that the person may appeal to the tribunal against the decision within 28 days after the person receives the notice; and
(c)how the appeal is made.

Division 3 Miscellaneous

324Tribunal must give particular information to chief psychiatrist about relevant patient

(1)This section applies if the tribunal makes a decision that increases the extent of treatment in the community received by a relevant patient.
(2)The tribunal must, for the purpose of enabling the chief psychiatrist to comply with section 320(2), give the chief psychiatrist a written notice containing a brief explanation of the decision.
(3)The chief psychiatrist may use the written notice only for the purpose for which it is given.
(4)To remove any doubt, it is declared that the written notice is not a statement of reasons for the tribunal’s decision.

325Telling relevant patient about information notice

(1)This section applies if an information notice relating to a relevant patient is made.
(2)The chief psychiatrist, or another person performing a function under this Act in relation to the relevant patient, must not tell the relevant patient about the making of the notice, or any other matter that may identify the applicant for the information notice.
(3)However, the chief psychiatrist or other person may tell the relevant patient the prescribed information about the information notice if—
(a)the applicant for the information notice requests that the prescribed information be given to the relevant patient; and
(b)the chief psychiatrist, or an authorised doctor, considers telling the relevant patient the prescribed information is in the patient’s best interests.
(4)In this section—
prescribed information, about an information notice, means—
(a)the fact of the making of the notice; or
(b)the fact of the making of the notice and the name of the applicant for the information notice.

326Misuse of information made available under an information notice

(1)This section applies in relation to information a person has because it has been made available to a person under an information notice.
(2)The person must not publish the information unless the publication is required or permitted under the information notice, or an Act or law.

Maximum penalty—200 penalty units.

327Application of part to forensic disability client

This part applies in relation to a forensic disability client as if—
(a)a reference in the part to a relevant patient were a reference to a forensic disability client; and
(b)a reference in the part to the chief psychiatrist were a reference to the director of forensic disability; and
(c)a reference in the part to an authorised mental health service were a reference to the forensic disability service.

Chapter 11 Authorised mental health services

Part 1 Preliminary

328Purpose of ch 11

The purpose of this chapter is to provide for—
(a)the declaration of authorised mental health services; and
(b)the appointment, functions and powers of administrators of authorised mental health services, authorised doctors and authorised mental health practitioners; and
(c)the transfer of the responsibility for particular patients—
(i)between authorised mental health services; and
(ii)between an authorised mental health service and the forensic disability service; and
(iii)between an authorised mental health service and an interstate mental health service; and

Note—

See chapter 12 , part 10 for approvals to transfer forensic and other patients into and out of Queensland.
(d)powers of authorised persons in relation to transporting persons under this Act; and
(e)matters relating to the security of authorised mental health services and other particular services.

Part 2 Declaration of authorised mental health services

329Declaration of authorised mental health service

(1)The chief psychiatrist may, by gazette notice, declare a health service, or part of a health service, providing treatment and care to persons who have a mental illness to be an authorised mental health service.
(2)However, if the health service is not a public sector health service, the declaration may be made only with the written agreement of the health service.
(3)The declaration may include conditions the chief psychiatrist considers appropriate, including, for example, a condition to facilitate the provision of treatment and care to persons who have a mental illness in rural or remote areas.

330Declaration of high security unit

The chief psychiatrist may, by gazette notice, declare a public sector mental health service, or part of a public sector mental health service, to be a high security unit.

331Declaration of authorised mental health service (rural and remote)

(1)The chief psychiatrist may, by gazette notice, declare an authorised mental health service, or part of an authorised mental health service, to be an authorised mental health service (rural and remote).
(2)The chief psychiatrist may act under subsection (1) only if satisfied the authorised mental health service is in a rural or remote area.

Part 3 Administrators of authorised mental health services

332Appointment

(1)The chief psychiatrist may, by gazette notice, appoint a person to be the administrator of an authorised mental health service.
(2)The appointment may identify the administrator by name or by reference to the holder of a stated office.

333Functions

(1)The administrator of an authorised mental health service has the following functions—
(a)to the extent practicable, ensuring the operation of the authorised mental health service complies with this Act;
(b)taking reasonable steps to ensure patients of the authorised mental health service receive appropriate treatment and care;
(c)notifying patients of the authorised mental health service, the chief psychiatrist, the tribunal and others of decisions and other matters as required under this Act;
(d)appointing authorised doctors and authorised mental health practitioners.
(2)Also, the administrator has the other functions given to the administrator under this or another Act.

334Powers

(1)The administrator of an authorised mental health service has the powers given under this Act.
(2)Also, the administrator may do all things necessary or convenient to be done to perform the administrator’s functions.

335Register of authorised doctors and authorised mental health practitioners

The administrator of an authorised mental health service must keep a register of persons holding office as an authorised doctor, authorised mental health practitioner, or health practitioner appointed under section 341 to perform particular functions, appointed by the administrator.

336Record of relevant patients

(1)The administrator of an authorised mental health service must keep a record of each relevant patient of the service.
(2)Without limiting subsection (1), the record must contain the following information—
(a)the day the person becomes a relevant patient of the authorised mental health service;
(b)the day the person stops being a relevant patient;
(c)details of the basis on which the person is a relevant patient;
(d)details of any change to the basis on which the person is a relevant patient and the day the change happens;
(e)the category of a treatment authority, forensic order or treatment support order for the relevant patient and details of any limited community treatment;
(f)the conditions of a treatment authority, forensic order or treatment support order for the relevant patient;
(g)details of temporary absences approved under section 221 for the relevant patient and the reason for the absences.
(3)In this section—

relevant patient means an involuntary patient or classified patient (voluntary).

337Delegation

(1)The administrator of an authorised mental health service may delegate the administrator’s functions under this Act to an appropriately qualified employee of the service.
(2)In this section—
function includes a power.

s 337 amd 2017 No. 3s 26

Part 4 Authorised doctors and authorised mental health practitioners

Division 1 Appointment, functions and powers

338Appointment of authorised doctor

(1)The administrator of an authorised mental health service may, by instrument in writing, appoint a doctor as an authorised doctor.
(2)However, the administrator may appoint a person under subsection (1) only if satisfied the person has the competencies, stated in a policy, necessary to be an authorised doctor.

339When administrator is authorised doctor

If the administrator of an authorised mental health service is a psychiatrist, the administrator is an authorised doctor.

340Appointment of authorised mental health practitioner

(1)The administrator of an authorised mental health service may, by instrument in writing, appoint a health practitioner as an authorised mental health practitioner.
(2)However, the administrator may appoint a person under subsection (1) only if satisfied the person has the competencies, stated in a policy, necessary to be an authorised mental health practitioner.

341Appointment of health practitioner to perform particular functions of authorised doctor

(1)The administrator of an authorised mental health service may appoint a health practitioner of a class prescribed by regulation to perform the functions or exercise the powers of an authorised doctor that are prescribed by regulation for the class of health practitioner.
(2)However, the administrator may appoint a person under subsection (1) only if satisfied the person is appropriately qualified.
(3)Before recommending to the Governor in Council the making of a regulation under subsection (1), the Minister must be of the opinion that the class of health practitioner proposed to be prescribed has the competencies the chief psychiatrist considers necessary to perform the functions or exercise the powers of an authorised doctor proposed to be prescribed for the class.
(4)In this section—
health practitioner means a health practitioner other than a doctor.

342Appointment conditions and limit on powers

(1)This section applies to each of the following—
(a)an authorised doctor appointed under section 338;
(b)an authorised mental health practitioner appointed under section 340;
(c)a health practitioner appointed under section 341 to perform particular functions.
(2)The person holds office—
(a)on any conditions stated in—
(i)the person’s instrument of appointment; or
(ii)a signed notice given to the person; and
(b)for an authorised doctor or authorised mental health practitioner—on the condition that the doctor or authorised mental health practitioner continues to have the competencies, stated in a policy, necessary to be an authorised doctor or authorised mental health practitioner.
(3)The instrument of appointment or signed notice given to the person may limit the person’s powers.
(4)In this section—
signed notice, given to a person, means a notice signed by the administrator of the authorised mental health service who appointed the person.

343When office ends

(1)This section applies to each of the following—
(a)an authorised doctor appointed under section 338;
(b)an authorised mental health practitioner appointed under section 340;
(c)a health practitioner appointed under section 341 to perform particular functions.
(2)The office of the person under the appointment ends if any of the following happens—
(a)for an authorised doctor appointed under section 338—the authorised doctor stops being a doctor;
(b)for an authorised mental health practitioner appointed under section 340—the authorised mental health practitioner stops being a health practitioner of the type that was the basis for the person’s appointment;
(c)for a health practitioner appointed under section 341 to perform particular functions—the health practitioner stops being a health practitioner of the class prescribed by regulation that was the basis for the person’s appointment;
(d)the term of office stated in a condition of office ends;
(e)the office ends under another condition of office;
(f)the chief psychiatrist—
(i)is satisfied the person is unable to perform the functions of the office, including, for example, because the person does not have the competencies, stated in a policy, necessary for the office; and
(ii)gives written notice to the person stating the person stops holding office on a date stated in the notice;
(g)the person resigns by written notice given to the administrator of the authorised mental health service who appointed the person.
(3)Subsection (2) does not limit the ways in which the person may stop holding office.
(4)In this section—
condition of office means a condition under which a person mentioned in subsection (1) holds office.

344Functions and powers

Subject to section 342, an authorised doctor, authorised mental health practitioner, or health practitioner appointed under section 341 to perform particular functions, has the functions and powers given under this Act.

345Requirement to give notice of particular decisions

(1)This section applies if an authorised doctor, authorised mental health practitioner, or health practitioner appointed under section 341 to perform particular functions (each a decision-maker) makes a decision under this Act in relation to an involuntary patient or classified patient (voluntary).
(2)The decision-maker must give written notice of the decision to the administrator of the patient’s treating health service.

Division 2 Identity cards

346Issue of identity card

(1)The administrator of an authorised mental health service must issue an identity card to each of the following persons appointed by the administrator—
(a)an authorised doctor;
(b)an authorised mental health practitioner;
(c)a health practitioner appointed under section 341 to perform particular functions.
(2)The identity card must—
(a)contain a recent photo of the person; and
(b)identify the person as an authorised doctor, authorised mental health practitioner, or health practitioner appointed to perform particular functions, under this Act; and
(c)state an expiry date for the card.
(3)This section does not prevent the issue of a single identity card to a person for this Act and other purposes.

347Production or display of identity card

(1)In exercising a power in relation to a person in the person’s presence, an authorised doctor, authorised mental health practitioner, or health practitioner appointed under section 341 to perform particular functions (each a practitioner), must—
(a)produce the practitioner’s identity card for the person’s inspection before exercising the power; or
(b)have the identity card displayed so it is clearly visible to the person when exercising the power.
(2)However, if it is not practicable to comply with subsection (1), the practitioner must produce the identity card for the person’s inspection at the first reasonable opportunity.

348Return of identity card

If the office of a person mentioned in section 346(1) ends, the person must return the person’s identity card to the administrator of the authorised mental health service who appointed the person within 21 days after the office ends, unless the person has a reasonable excuse.

Maximum penalty—20 penalty units.

Part 5 Transfer of patients

Division 1 Preliminary

349Purpose of pt 5

The purpose of this part is to provide for the transfer of the responsibility for particular patients—
(a)between authorised mental health services; and
(b)between an authorised mental health service and the forensic disability service; and
(c)between an authorised mental health service and an interstate mental health service.

Note—

See chapter 12 , part 10 for approvals to transfer forensic and other patients into and out of Queensland.

350Definition for pt 5

In this part—
transfer considerations, for a person, means—
(a)the person’s mental state and psychiatric history; and
(b)the person’s treatment and care needs; and
(c)whether the transfer is in the best interests of the person, including, for example, enabling the person to be closer to the person’s family, carers or other support persons; and
(d)if relevant, security requirements for the person.

Division 2 Authorised mental health service transfers

351Transfer between services by agreement of administrators

(1)This section applies to a person who is an involuntary patient, or a classified patient (voluntary), of an authorised mental health service.
(2)The administrator of the authorised mental health service (the first AMHS) may agree with the administrator of another authorised mental health service (the second AMHS) to transfer the responsibility for the person from the first AMHS to the second AMHS.
(3)In deciding whether to agree to a transfer under subsection (2), the administrator of the first AMHS and the administrator of the second AMHS must have regard to the transfer considerations for the person.
(4)If any of the following circumstances apply, the transfer must not happen unless the chief psychiatrist has approved the transfer in writing—
(a)the person is subject to a forensic order;
(b)the person is subject to a judicial order;
(c)the person is subject to a treatment authority but is not a classified patient, and the transfer is to a high security unit;
(d)the person is a minor, and the transfer is to a high security unit.
(5)In deciding whether to approve a transfer under subsection (4), the chief psychiatrist must have regard to the transfer considerations for the person.
(6)If a person transferred under this section is a classified patient and the chief psychiatrist is not required to approve the transfer under subsection (4), the administrator of the first AMHS must give written notice of the transfer to the chief psychiatrist within 7 days after the transfer.

352Transfer between services by requirement of chief psychiatrist

(1)This section applies to a person who is an involuntary patient, or a classified patient (voluntary), of an authorised mental health service.
(2)The chief psychiatrist may, by written notice, require the administrator of the authorised mental health service to transfer the responsibility for the person from the authorised mental health service to another authorised mental health service.
(3)In deciding whether to require a transfer under this section, the chief psychiatrist must have regard to the transfer considerations for the person.

Division 3 Forensic disability service transfers

353Transfer between authorised mental health service and forensic disability service

(1)This section applies to a person subject to a forensic order (disability).
(2)The chief psychiatrist and the director of forensic disability may agree to transfer the responsibility for the person from an authorised mental health service to the forensic disability service, or vice versa.
(3)In deciding whether to agree to a transfer under subsection (2), the chief psychiatrist and the director of forensic disability must have regard to—
(a)the transfer considerations for the person; and
(b)the person’s intellectual disability.

Division 4 Interstate transfers

354Transfer of person subject to treatment authority to another State

(1)This section applies to a person subject to a treatment authority who—
(a)is a patient of an authorised mental health service (the AMHS); and
(b)is not a classified patient or a person subject to a forensic order (disability).
(2)The administrator of the AMHS may agree with a responsible officer of an interstate mental health service to transfer the responsibility for the person from the AMHS to the interstate mental health service if the administrator is satisfied—
(a)the transfer is in the best interests of the person, including, for example, enabling the person to be closer to the person’s family, carers or other support persons; and
(b)appropriate treatment and care is available for the person at the interstate mental health service.
(3)The person’s treatment authority ends when the person leaves Queensland.

355Transfer of person subject to interstate order from another State

(1)This section applies to a person subject to an interstate order who is a patient of an interstate mental health service.
(2)The administrator of an authorised mental health service (the AMHS) may agree with a responsible officer of the interstate mental health service to transfer the responsibility for the person from the interstate mental health service to the AMHS if the administrator of the AMHS is satisfied—
(a)the transfer is in the best interests of the person, including, for example, enabling the person to be closer to the person’s family, carers or other support persons; and
(b)appropriate treatment and care is available for the person at the AMHS; and
(c)an authorised doctor is likely to consider, on the person’s admission to the AMHS, that—
(i)the treatment criteria apply to the person; and
(ii)there is no less restrictive way for the person to receive treatment and care for the person’s mental illness.
(3)On the person’s arrival at the AMHS, an authorised doctor must make an assessment of the person to decide—
(a)whether the treatment criteria apply to the person; and
(b)whether there is a less restrictive way for the person to receive treatment and care for the person’s mental illness.
(4)The person may be detained for assessment in the AMHS for a period of not more than 6 hours starting when the person arrives at the AMHS.
(5)If, on making the assessment, the authorised doctor is satisfied the treatment criteria apply to the person and there is no less restrictive way for the person to receive treatment and care for the person’s mental illness, the authorised doctor may decide to make an authority for the person.
(6)The authority is taken to be a treatment authority made under section 49 by the authorised doctor for the person.
(7)In this section—
interstate order means an order, however described, made under a corresponding law that provides for similar matters to a treatment authority.

s 355 amd 2017 No. 3s 27

Division 5 General provisions

356Responsibility for person

(1)If the responsibility for a person is transferred, under division 2 or 3, from a service to another service, the responsibility for the person’s treatment and care under the person’s order or authority is transferred from the administrator of the first service to the administrator of the second service.
(2)An order or authority to which the person is subject, under this Act or the Forensic Disability Act, is otherwise affected by the transfer only to the extent this Act or the Forensic Disability Act expressly provides.
(3)In this section—
service means an authorised mental health service or the forensic disability service.

357Power to transport

(1)This section applies if the responsibility for a person is transferred, under this part, from an entity to another entity.
(2)An authorised person may transport the person from the first entity to the second entity.
(3)If 1 of the entities is the forensic disability service, a person who is authorised under the Forensic Disability Act to transport a forensic disability client under that Act may transport the person to or from the entity.
(4)If 1 of the entities is an interstate mental health service, a person who is authorised under a corresponding law to transport a person may transport the person to or from the entity.

358Notice to tribunal

(1)This section applies if the responsibility for a person is transferred from an authorised mental health service, or the forensic disability service, to another entity.
(2)The administrator of the authorised mental health service or forensic disability service must give written notice of the transfer to the tribunal within 7 days after the day of the transfer.
(3)Subsection (2) does not apply if the person is subject only to a recommendation for assessment.

s 358 amd 2017 No. 3s 28

Part 6 Transport of persons

Division 1 Preliminary

359Who is an authorised person

(1)Each of the following is an authorised person
(a)the administrator of an authorised mental health service;
(b)an ambulance officer;
(c)a health practitioner;
(d)a police officer.
(2)Also, if a person is to be transported to or from a corrective services facility, a youth detention centre or a court, each of the following is an authorised person
(a)a corrective services officer for the purpose of taking the person to or from the facility or court;
(b)a youth detention employee for the purpose of taking the person to or from the centre or court.
(3)Also, the administrator of an authorised mental health service may in writing appoint an employee of the authorised mental health service as an authorised person.
(4)An authorised person, other than a police officer, is a public official for the Police Powers and Responsibilities Act 2000 .
(5)In this section—

corrective services facility see the Corrective Services Act 2006 , schedule 4 .

corrective services officer see the Corrective Services Act 2006 , schedule 4 .

youth detention centre means a detention centre established under the Youth Justice Act 1992 , section 262 .

youth detention employee means a detention centre employee under the Youth Justice Act 1992 .

s 359 amd 2017 No. 3s 29

Division 2 Transport of persons within and to and from authorised mental health services and other particular places

360Transport within authorised mental health service

The administrator of an authorised mental health service, a health practitioner, or another person approved by the administrator or health practitioner, may transport an involuntary patient or classified patient (voluntary) from 1 place in the authorised mental health service to another place in the authorised mental health service.

Examples—

a patient may be transported to a different inpatient unit within the service
a patient may be transported to another place in the service for an examination or diagnostic test

s 360 amd 2017 No. 3s 30

361Transport to or from authorised mental health service and other particular places

An authorised person may transport an involuntary patient or classified patient (voluntary) to or from an authorised mental health service, public sector health service facility, place of custody, court or a place in the community for the purposes of this Act.

362Taking person after treatment and care to person’s requested place

(1)This section applies if—
(a)a person is transported from a place in the community to an authorised mental health service, or public sector health service facility, under an examination authority or recommendation for assessment; or
(b)a person is transported from a place in the community to an authorised mental health service, or public sector health service facility, under an emergency examination authority and a recommendation for assessment is made for the person.
(2)At the end of the person’s detention in an authorised mental health service, or public sector health service facility, including under a recommendation for assessment or treatment authority made for the person after the examination or assessment of the person, the administrator of the service or person in charge of the facility must take reasonable steps to ensure the person is returned to a place reasonably requested by the person.

Division 3 Transport of absent persons

363Application of div 3

This division applies if—
(a)a person absconds while being lawfully detained under this Act or in a person’s charge under section 622(2); or
(b)a person subject to a treatment authority, forensic order or treatment support order is being treated in the community and the person does not attend at an authorised mental health service or public sector health service facility as required under the authority or order; or
(c)a treatment authority, forensic order, treatment support order or judicial order is made for a person requiring the person to be detained in an authorised mental health service and the person is not in an authorised mental health service when the authority or order is made; or
(d)the category of a patient’s treatment authority, forensic order or treatment support order is changed to inpatient; or
(e)a forensic patient is receiving limited community treatment and the chief psychiatrist orders the suspension of the treatment under section 313 (2)(a); or
(f)the chief psychiatrist orders the category of a patient’s forensic order to be changed to inpatient under section 313 (2)(b); or
(g)a patient is temporarily absent from an authorised mental health service under section 221 , or receiving limited community treatment, and either of the following applies—
(i)the patient does not return to the authorised mental health service at the end of the absence or treatment;
(ii)the approval of the absence, or authorisation of the treatment, is revoked; or
(h)a person does not attend at an authorised mental health service as directed under section 56 or 99; or
(i)a person subject to an examination order does not attend at an authorised mental health service or public sector health service facility as directed under the order; or
(j)a person does not attend at an examining practitioner as directed under section 721(4)(b).

364Particular persons may require return of absent person

(1)A responsible person may—
(a)authorise an authorised person, other than a police officer, to transport a person mentioned in section 363 to an authorised mental health service or public sector health service facility; or
(b)ask a police officer to transport a person mentioned in section 363 to an authorised mental health service or public sector health service facility.
(2)The authorisation or request must—
(a)be in the approved form; and
(b)state the name of the person to be transported; and
(c)state the name of the authorised mental health service or public sector health service facility to which the person is to be transported; and
(d)identify the risk the person presents to himself or herself, the authorised person or police officer, and others; and
(e)for a request to a police officer—state the reasons why the responsible person considers it necessary for a police officer to transport the person.
(3)Before acting under this section, the responsible person must make reasonable efforts to contact the person and encourage the person to come or return to the authorised mental health service or public sector health service facility.
(4)Subsection (3) does not apply if the responsible person considers there is a risk the person may harm himself or herself or others if the administrator or person in charge complies with the subsection.

Note—

See also section 377 for applying for a warrant for the apprehension of a person.
(5)The person in charge of a public sector health service facility may delegate a function under this section to an appropriately qualified health service employee.
(6)In this section—
function includes a power.
responsible person means—
(a)the administrator of an authorised mental health service; or
(b)the person in charge of a public sector health service facility; or
(c)an authorised doctor; or
(d)an authorised mental health practitioner.

s 364 amd 2017 No. 3s 31

365Limitation on requirement to return particular absent persons

(1)This section applies if a person absconds while being lawfully detained—
(a)under a recommendation for assessment; or
(b)before the end of the assessment period for the person; or
(c)under an examination authority; or
(d)under section 36 .
(2)An authorisation or request under section 364 to transport the person is in force for 3 days after the day the person absconds.

366Authorised person may transport absent person

(1)This section applies if an authorised person is authorised to transport a person under section 364 (1)(a).
(2)The authorised person may transport the person named in the authorisation to the authorised mental health service or public sector health service facility stated in the authorisation.
(3)Subsection (4) applies if an authorised person mentioned in section 364 (1)(a) asks a police officer, under the Police Powers and Responsibilities Act 2000 , section 16 , to help transport the named person.

Note—

Under section 359 (4), an authorised person, other than a police officer, is a public official for the Police Powers and Responsibilities Act 2000 . Under section 16 of that Act, a public official may ask a police officer to help the public official perform the public official’s functions.
(4)The request must—
(a)be in the approved form; and
(b)state the name of the person to be transported; and
(c)state the name of the authorised mental health service or public sector health service facility to which the person is to be transported; and
(d)identify the risk the person presents to himself or herself, the authorised person or police officer, and others; and
(e)state the reasons why the authorised person considers it necessary to ask the police officer to help transport the person.
(5)Before transporting the person, the authorised person must—
(a)tell the person the authorised person is detaining the person and transporting the person to the authorised mental health service or public sector health service facility stated in the authorisation; and
(b)explain to the person how taking action under paragraph (a) may affect the person.

s 366 amd 2017 No. 3s 32

367Effect on assessment period

If a person transported under an authorisation or request under section 364 was subject to a recommendation for assessment when the person absconded or the person absconded before the end of the assessment period for the person—
(a)despite section 41 , the recommendation for assessment continues in force; and
(b)despite section 45 , the assessment period for the person starts when the person arrives at the service or facility to which the person has been transported; and
(c)an employee of the service or facility to which the person has been transported must note on the recommendation for assessment when the assessment period starts under paragraph (b).

s 367 amd 2017 No. 3s 33

Division 4 Transport of persons to and from interstate mental health services

368Apprehension of person absent from interstate mental health service

(1)An authorised person who is a police officer may apprehend, in Queensland, a person—
(a)who is absent without permission from an interstate mental health service; and
(b)for whom a warrant for the person’s apprehension has been issued under a corresponding law of the State in which the interstate mental health service is located (the other State).
(2)For subsection (1) , a warrant issued under a corresponding law authorising a person’s apprehension is taken to be a warrant for apprehension of the person under this Act by a police officer.
(3)If the person is apprehended under this section, a police officer may transport the person to an interstate mental health service in the other State or an authorised mental health service.
(4)The person may be detained in an authorised mental health service for the period reasonably necessary to enable the administrator of the service to make arrangements for the person’s return to an interstate mental health service.

369Transport of person in Queensland to interstate mental health service

(1)This section applies to a person in Queensland who—
(a)appears to have a mental illness and may be detained and transported to a public sector health service facility under the Public Health Act 2005 , section 157B ; or
(b)is subject to a recommendation for assessment.
(2)If permitted under a corresponding law, the person may be transported to an interstate mental health service by—
(a)an authorised person; or
(b)a person who, under a corresponding law, is authorised to transport the person to an interstate mental health service.

s 369 amd 2017 No. 3s 34

370Transport of person outside Queensland to authorised mental health service

(1)This section applies to a person outside Queensland who, under a corresponding law, may be transported to an interstate mental health service for—
(a)emergency involuntary examination or treatment and care relating to a mental illness; or
(b)an involuntary assessment of whether the person should be involuntarily treated for a mental illness.
(2)If subsection (1) (a) applies, the person may be transported to either of the following places for emergency examination or treatment and care—
(a)an authorised mental health service;
(b)a public sector health service facility.
(3)If the public sector health service facility mentioned in subsection (2) (b) is not an inpatient hospital, the person may be transported to the facility only with the approval of the person in charge of the facility.
(4)If subsection (1) (b) applies, the person may be transported to an authorised mental health service for an involuntary assessment of whether the person should be involuntarily treated for a mental illness.
(5)The person may be transported to a place mentioned in subsection (2) or (4) by—
(a)an authorised person; or
(b)a person who, under a corresponding law, is authorised to transport the person to an interstate mental health service.
(6)A document under a corresponding law that recommends assessment of a person to decide whether the person should be involuntarily treated for a mental illness is taken to be a recommendation for assessment for the purposes of this Act.
(7)In this section—
inpatient hospital means a hospital at which a person may be discharged on a day other than the day on which the person was admitted to the hospital.

371Making of emergency examination authority

(1)This section applies if a person mentioned in section 370 (5)(b) (an interstate officer) transports a person to whom section 370 (1)(a) applies, to an authorised mental health service or public sector health service facility.
(2)The interstate officer must immediately give an authority for the person.
(3)The authority must—
(a)be in the approved form; and
(b)state the time when it is given.
(4)The authority is taken to be an emergency examination authority given for the person under the Public Health Act 2005 , section 157D .

Division 5 Transport powers

372Application of div 5

This division applies if an authorised person is required or permitted under this Act to transport a person for a stated purpose.

373Power to detain

(1)The power of the authorised person to transport the person includes the power to detain the person.
(2)The authorised person may exercise the power to transport the person, including the power to detain the person, with the help, and using the force, that is necessary and reasonable in the circumstances.

374Power to administer medication

(1)Despite the absence or refusal of the person’s consent, the power of the authorised person to transport the person includes the power to administer medication to the person.
(2)However, the medication—
(a)may be administered to the person only if a doctor is satisfied there is no other reasonably practicable way to protect the person or others from physical harm; and
(b)must be administered by a doctor or by a registered nurse under the instruction of a doctor.
(3)The doctor or registered nurse may administer the medication with the help, and using the force, that is necessary and reasonable in the circumstances.
(4)For subsection (2)(b), the doctor’s instruction must include the medication’s name, the dose, and route and frequency of administration.
(5)A doctor or registered nurse who administers medication under this section must keep a written record of the matters mentioned in subsection (4).
(6)This section applies despite the Guardianship and Administration Act 2000 , chapter 5 , part 2 , division 1.
(7)This section does not apply to a classified patient (voluntary).
(8)In this section—
registered nurse means a person registered under the Health Practitioner Regulation National Law—
(a)to practise in the nursing and midwifery profession as a nurse, other than as a student; and
(b)in the registered nurses division of that profession.

375Power to use mechanical restraint

(1)The power of the authorised person to transport the person includes the power to use mechanical restraint on the person if the person is an involuntary patient.
(2)However, the mechanical restraint may be used only if—
(a)the chief psychiatrist has given approval, under subsection (3), for the authorised person to use mechanical restraint on the person; and
(b)there is no other reasonably practicable way to protect the person or others from physical harm; and
(c)the device used is an approved device; and
(d)the use of mechanical restraint on the person, including applying the device to the person, is with no more force than is necessary and reasonable in the circumstances; and
(e)the person is observed continuously while restrained.
(3)The chief psychiatrist may give approval for an authorised person to use, under this section, mechanical restraint on the person if the chief psychiatrist is satisfied there is no other reasonably practicable way to protect the person or others from physical harm.
(4)The approval must state—
(a)the purpose for which mechanical restraint may be used on the person; and
(b)the period during which an authorised person may use mechanical restraint on the person; and
(c)the approved device that must be used; and
(d)any other conditions the chief psychiatrist considers appropriate.
(5)For subsection (4)(a), the purpose for which mechanical restraint may be used on the person includes examining, carrying out a diagnostic test on, or providing treatment and care to, the person.

376Power to enter particular places

(1)The power of the authorised person to transport the person includes the power to enter a place in which the authorised person reasonably believes the person is if—
(a)an occupier of the place consents to the entry; or
(b)it is a public place and the entry is made when the place is open to the public.
(2)For asking an occupier of a place to consent to the entry, chapter 14, part 3, division 2 applies as if—
(a)a reference in the division to an inspector were a reference to the authorised person; and
(b)a reference in the division to an inspector asking an occupier of a place to consent to an inspector entering the place under section 565(1)(a) were a reference to the authorised person asking the occupier of the place to consent to the authorised person entering the place under this section.

Note—

See also the Police Powers and Responsibilities Act 2000 , section 21 for other powers of a police officer.
(3)If the power to enter a place arises only because an occupier of the place consents to the entry, the power is subject to any conditions of the consent and ceases if the consent is withdrawn.
(4)If an authorised person lawfully enters a place under subsection (1) for the purpose of transporting a person, the power of the authorised person to transport the person also includes the power—
(a)to search the place to find the person; and
(b)to remain in the place for as long as the authorised person considers it reasonably necessary to find the person.

Division 6 Warrant for apprehension of person to transport person

377Application for warrant for apprehension of person

(1)This section applies if an authorised person considers a warrant for apprehension of a person is necessary to enable an authorised person to transport the person under this Act to an authorised mental health service or public sector health service facility for examination, assessment, or treatment and care.
(2)The authorised person may apply to a magistrate for a warrant for apprehension of the person.
(3)The authorised person must prepare a written application stating the grounds on which the warrant is sought.
(4)The written application must be sworn.
(5)The magistrate may refuse to consider the application until the authorised person gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application to be given by statutory declaration.

378Issue of warrant

(1)A magistrate may issue the warrant for apprehension of the person if the magistrate is satisfied the warrant is necessary to enable an authorised person to transport the person to an authorised mental health service or public sector health service facility for examination, assessment, or treatment and care.
(2)The warrant authorises an authorised person—
(a)to enter a place the authorised person reasonably believes the person is; and
(b)to search the place to find the person; and
(c)to remain in the place for as long as the authorised person considers it reasonably necessary to find the person; and
(d)to transport the person to a stated authorised mental health service or public sector health service facility.

Note—

For a police officer’s entry and search powers, see the Police Powers and Responsibilities Act 2000 , section 21 . Also, for the use of force by a police officer, see the Police Powers and Responsibilities Act 2000 , section 615 .
(3)The warrant must state—
(a)the person to whom the warrant applies; and
(b)that an authorised person may, with necessary and reasonable help and force, exercise—
(i)the powers under the warrant mentioned in subsection (2) ; and
(ii)the powers mentioned in division 5; and
(c)the hours of the day or night when a place mentioned in subsection (2) (a) may be entered; and
(d)the magistrate’s name; and
(e)the day and time of the warrant’s issue; and
(f)the day, within 7 days after the warrant’s issue, the warrant ends.
(4)An authorised person may exercise a power under the warrant with the help, and using the force, that is necessary and reasonable in the circumstances.

379Electronic application

(1)An application under section 377 may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the authorised person reasonably considers it necessary because of—
(a)urgent circumstances; or
(b)other special circumstances, including, for example, the authorised person’s remote location.
(2)The application—
(a)may not be made before the authorised person prepares the written application under section 377 (3); but
(b)may be made before the written application is sworn.

380Additional procedure if electronic application

(1)For an application made under section 379 , the magistrate may issue the warrant for apprehension of the person (the original warrant) only if the magistrate is satisfied—
(a)it was necessary to make the application under section 379 ; and
(b)the way the application was made under section 379 was appropriate.
(2)After the magistrate issues the original warrant—
(a)if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised person, including, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised person; or
(b)otherwise—
(i)the magistrate must tell the authorised person the information mentioned in section 378 (3); and
(ii)the authorised person must complete a form of warrant, including by writing on it the information mentioned in section 378 (3) told to the person by the magistrate.
(3)The copy of the warrant mentioned in subsection (2) (a), or the form of warrant completed under subsection (2) (b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant.
(4)The authorised person must, at the first reasonable opportunity, send to the magistrate—
(a)the written application complying with section 377 (3) and (4); and
(b)if the authorised person completed a form of warrant under subsection (2) (b), the completed form of warrant.
(5)The magistrate must keep the original warrant and, on receiving the documents under subsection (4)
(a)attach the documents to the original warrant; and
(b)give the original warrant and documents to the clerk of the court of the relevant magistrates court.
(6)Despite subsection (3) , if—
(a)an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and
(b)the original warrant is not produced in evidence;
      the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.
(7)In this section—
relevant magistrates court, in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991 .

381Defect in relation to a warrant

(1)A warrant for apprehension of a person is not invalidated by a defect in—
(a)the warrant; or
(b)compliance with this division;
      unless the defect affects the substance of the warrant in a material particular.
(2)In this section—
warrant for apprehension includes a duplicate warrant under section 380(3).

382Warrants—entry procedure

(1)This section applies if an authorised person is intending to enter a place under a warrant for apprehension of a person.
(2)Before entering the place, the authorised person must do or make a reasonable attempt to do the following things—
(a)identify himself or herself to a person present at the place who is an occupier of the place;

Note—

See also the Police Powers and Responsibilities Act 2000 , section 637 .
(b)give the person a copy of the warrant or, if the entry is authorised by a duplicate warrant under section 380 (3), a copy of the duplicate warrant;
(c)tell the person the authorised person is permitted by the warrant to enter and search the place to find the person named in the warrant;
(d)give the person an opportunity to allow the authorised person immediate entry to the place without using force.
(3)However, the authorised person need not comply with subsection (2) if the authorised person reasonably believes immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated.

Part 7 Security

Division 1 Preliminary

383Purpose of pt 7

The purpose of this part is to provide for—
(a)the delivery to, and sending of postal articles for, patients in authorised mental health services; and
(b)searches of particular patients in authorised mental health services and particular public sector health service facilities; and
(c)searches of persons on admission to, or entry into, high security units or other authorised mental health services approved by the chief psychiatrist; and
(d)searches of visitors to high security units or other authorised mental health services approved by the chief psychiatrist; and
(e)the power of administrators of authorised mental health services to exclude particular visitors to the service.

384Definitions for pt 7

In this part—
authorised security officer means—
(a)a security officer; or
(b)an appropriately qualified employee of an authorised mental health service who is authorised by the administrator of the service to provide security services to the service.

def authorised security officer amd 2017 No. 3s 35

general search, of a person, means a search—
(a)to reveal the contents of the person’s outer garments, general clothes or hand luggage without touching the person or the luggage; or
(b)in which the person may be required to—
(i)open his or her hands or mouth for visual inspection; or
(ii)shake his or her hair vigorously.
personal search, of a person, means a search in which light pressure is momentarily applied to the person over the person’s general clothes without direct contact being made with—
(a)the person’s genital or anal areas; or
(b)for a female—the person’s breasts.
postal article includes a postal article carried by a courier service.
scanning search, of a person, means a search of the person by electronic or other means that does not require the person to remove the person’s general clothes or to be touched by another person.

Examples of a scanning search—

using a portable electronic apparatus or another portable apparatus that can be passed over the person
using an electronic apparatus through which the person is required to pass
search requiring the removal of clothing, of a person, means a search in which the person removes all garments during the course of the search, but in which direct contact is not made with the person.
security officer means a person employed or engaged by an authorised mental health service to provide security services, regardless of how the person’s employment or engagement is described.

Division 2 Postal articles and other things in authorised mental health services

385Patient may receive and send postal article

(1)A person must not prevent or impede in any way—
(a)the delivery, to a patient of an authorised mental health service, of a postal article addressed to the patient; or
(b)the sending of a postal article for a patient of an authorised mental health service.

Maximum penalty—20 penalty units.

(2)Subsection (1) (a) has effect subject to section 386 .
(3)A person does not commit an offence against subsection (1) (b) if the addressee of the postal article—
(a)is the subject of a non-contact condition of a forensic order or treatment support order to which the patient is subject; or
(b)has given written notice to the administrator of the service asking that postal articles addressed by the patient to the addressee be withheld.
(4)In this section—
non-contact condition, of a forensic order or treatment support order to which a patient is subject, means a condition of the order that requires the patient not to contact a stated person.
patient means—
(a)an involuntary patient; or
(b)a person receiving treatment and care for a mental illness in an authorised mental health service, other than as an involuntary patient, including a person receiving treatment and care under an advance health directive or with the consent of a personal guardian or attorney.

386Administrator may search thing received for patient

(1)The administrator of an authorised mental health service, or an appropriately qualified person authorised by the administrator, may open or search anything received at the service for a patient.
(2)However, the administrator may exercise a power under subsection (1) only if the patient is present or has been given the opportunity to be present.
(3)Subsection (2) does not apply if the patient obstructs the administrator in the exercise of the administrator’s powers under subsection (1) .
(4)In this section—
patient means—
(a)an involuntary patient; or
(b)a person receiving treatment and care for a mental illness in an authorised mental health service, other than as an involuntary patient, including a person receiving treatment and care under an advance health directive or with the consent of a personal guardian or attorney.
search includes search by—
(a)an electronic scanning device; and
(b)a physical examination.

Division 3 Searches of patients of authorised mental health services or public sector health service facilities

387Application of div 3

This division applies to—
(a)an involuntary patient of an authorised mental health service or public sector health service facility; or
(b)a classified patient (voluntary) of an authorised mental health service.

388Power to search on belief of possession of harmful thing

(1)This section applies if a doctor or health practitioner believes the patient may have possession of a harmful thing.
(2)The doctor or health practitioner may—
(a)carry out a general search, scanning search or personal search of the patient; and
(b)if the administrator of the authorised mental health service, or the person in charge of the public sector health service facility, gives approval for a search requiring the removal of clothing—carry out a search requiring the removal of clothing; and
(c)carry out a search of the patient’s possessions.
(3)The administrator of the service, or the person in charge of the facility, may give approval under subsection (2) (b) if the administrator or person in charge believes a search requiring the removal of clothing is necessary in the circumstances.
(4)A search under this section may be carried out without the patient’s consent.
(5)However, before carrying out a search under this section, the doctor or health practitioner must tell the patient the reasons for the search and how it is to be carried out.
(6)A doctor or health practitioner may carry out a search under this section with the help, and using the force, that is necessary and reasonable in the circumstances.

Division 4 Searches of involuntary patients on admission to or entry into high security units or other approved services

389Application of div 4

This division applies to person who is admitted as an involuntary patient to, or enters as an involuntary patient in, an authorised mental health service that is—
(a)a high security unit; or
(b)another authorised mental health service, or part of an authorised mental health service, approved by the chief psychiatrist for the purpose of this division.

390Power to search on admission or entry

(1)On the patient’s admission to, or entry into, the service, an authorised security officer may, for detecting harmful things—
(a)carry out a general search, scanning search or personal search of the patient; and
(b)if the administrator of the service gives approval for a search requiring the removal of clothing—carry out a search requiring the removal of clothing; and
(c)carry out a search of the patient’s possessions.
(2)The administrator of the service may give approval under subsection (1) (b) if the administrator believes a search requiring the removal of clothing is necessary in the circumstances.
(3)A search under this section may be carried out without the patient’s consent.
(4)However, before carrying out a search under this section, the authorised security officer must tell the patient the reasons for the search and how it is to be carried out.
(5)An authorised security officer may carry out a search under this section with the help, and using the force, that is necessary and reasonable in the circumstances.

Division 5 Searches of visitors to high security units or other approved services

391Application of div 5

This division applies to a visitor to an authorised mental health service that is—
(a)a high security unit; or
(b)another authorised mental health service, or part of an authorised mental health service, approved by the chief psychiatrist for the purpose of this division.

392Power to search visitor

An authorised security officer for the service may ask the visitor—
(a)to submit to a general search, scanning search or personal search by the authorised security officer; or
(b)to submit the visitor’s possessions to a search.

393Requirement to explain to visitor

The authorised security officer must tell the visitor in general terms of—
(a)the officer’s powers in relation to the search; and
(b)how the search is to be carried out; and
(c)the visitor’s rights under this division.

394Direction to leave

(1)If the visitor does not agree to a request under section 392 , the authorised security officer may refuse the visitor permission to enter the service or, if the person is in the service, direct the person to immediately leave the service.
(2)If the visitor is directed to leave the service, the visitor must comply with the direction.

Maximum penalty—20 penalty units.

395Visitor may leave thing with authorised security officer

If the visitor does not want the authorised security officer to search anything in the visitor’s possession, the visitor may leave the thing with the officer until the visitor leaves the service.

396Authorised security officer may ask visitor to leave thing with officer

(1)The authorised security officer may ask the visitor to leave a thing the officer believes is a harmful thing with the officer until the visitor leaves the service.
(2)If the visitor refuses to comply with a request under subsection (1), the officer may refuse the visitor permission to enter the service or, if the person is in the service, direct the person to immediately leave the service.
(3)If the visitor is directed to leave the service, the visitor must comply with the direction.

Maximum penalty—20 penalty units.

397Visitor may ask for search to stop

(1)The authorised security officer must stop the search if the visitor tells the officer the visitor does not want the search to continue and is prepared to leave the service immediately.
(2)The visitor must leave the service immediately.

Maximum penalty—20 penalty units.

398Return of thing to visitor

If the visitor has left a thing with an authorised security officer, the officer must ensure the thing is returned to the visitor if—
(a)the visitor asks for its return; and
(b)the officer is satisfied the visitor is about to leave the service.

Division 6 Requirements for searches

399Requirements for personal search

(1)A person authorised under division 3, 4 or 5 to carry out a personal search (the searcher) may do any 1 or more of the following in relation to the person being searched—
(a)remove and inspect an outer garment or footwear of the person;
(b)remove and inspect all things from the pockets of the person’s clothing;
(c)touch the clothing worn by the person to the extent necessary to detect things in the person’s possession;
(d)remove and inspect any detected thing.
(2)The searcher may exercise a power under subsection (1) (c) only if—
(a)the searcher is the same gender as the person; and
(b)the search is carried out in a part of a building that ensures the person’s privacy.
(3)The searcher must—
(a)carry out the search in a way that respects the person’s dignity to the greatest possible extent; and
(b)cause as little inconvenience to the person as is practicable in the circumstances.

400Requirements for search requiring removal of clothing

(1)A search under division 3 or 4 requiring the removal of clothing of a person must be carried out by at least 2 persons authorised to carry out the search, but by no more persons than are reasonably necessary to carry out the search.
(2)Each person carrying out the search (each a searcher) must be of the same gender as the person being searched.
(3)Before carrying out the search, 1 of the searchers must tell the person—
(a)that the person will be required to remove the person’s clothing during the search; and
(b)why it is necessary to remove the clothing.
(4)The searcher must—
(a)ensure the search is carried out in a part of a building that ensures the person’s privacy; and
(b)ensure, to the extent practicable, that the way in which the person is searched causes minimal embarrassment to the person; and
(c)take reasonable care to protect the person’s dignity; and
(d)carry out the search as quickly as practicable; and
(e)allow the person to dress as soon as the search is finished.
(5)The searcher must, if reasonably practicable, give the person the opportunity to remain partly clothed during the search, including, for example, by allowing the person to dress the person’s upper body before being required to remove clothing from the lower part of the body.
(6)If the searcher seizes clothing because of the search, the searcher must ensure the person is left with, or given, reasonably appropriate clothing.

401Requirements for search of possessions

(1)A person authorised under division 3, 4 or 5 to carry out a search of a person’s possessions (the searcher) may—
(a)open or inspect a thing in the person’s possession; and
(b)remove and inspect any detected thing.
(2)However, the searcher may exercise a power to inspect a thing under subsection (1) only if the person is present or has been given the opportunity to be present.
(3)Subsection (2) does not apply if the person obstructs the searcher in the exercise of the searcher’s powers.

Division 7 Records of searches

402Record of search must be made

(1)This section applies if—
(a)a search requiring the removal of clothing is carried out under division 3 or 4; or
(b)a person seizes anything found during a search under this part.
(2)As soon as practicable after carrying out the search, the person who carried out the search must make a written record of the following details of the search—
(a)the reasons for the search;
(b)the names of the persons present during the search;
(c)how the search was carried out;
(d)details of anything seized, including the reasons for seizing.

Division 8 Seizure

403Seizure of harmful or other thing

(1)A person authorised under this part to carry out a search (the searcher) may seize anything found during the search that the searcher reasonably suspects is—
(a)connected with, or is evidence of, the commission or intended commission of an offence against an Act; or
(b)for a search under division 2, 3 or 4—a harmful thing.
(2)If the searcher believes a seized thing is connected with, or is evidence of, the commission or intended commission of an offence against an Act, the searcher must give it to an authorised inspector for the Act .
(3)The seizure provisions of the Act mentioned in subsection (2) apply to the thing as if the searcher had seized it under the provisions of the Act that relate to the offence.
(4)If the authorised inspector is not reasonably satisfied the thing is evidence of the commission or intended commission of an offence against the Act , the authorised inspector must return it to the searcher who must deal with it under this section.
(5)If the searcher believes a thing seized from a patient, or a thing returned under subsection (4) , is a harmful thing, the searcher must—
(a)keep it for the patient and give it to the patient on the patient’s discharge from the authorised mental health service or public sector health service facility; or
(b)give it to someone else if the patient is able to give, and has given, agreement to do so; or
(c)if the searcher is satisfied someone else is entitled to possession of the thing—give or send it to the person; or
(d)if the searcher is satisfied it is of negligible value—dispose of it in the way the administrator of the authorised mental health service, or the person in charge of the public sector health service facility, believes appropriate.
(6)A thing seized from a visitor, and returned to the searcher under subsection (4) , is forfeited to the State if the searcher—
(a)can not find the visitor from whom it was seized, after making reasonable inquiries; or
(b)can not return it to the visitor, after making reasonable efforts.
(7)In applying subsection (6)—
(a)subsection (6)(a) does not require the searcher to make inquiries if it would be unreasonable in the particular circumstances to make inquiries to find the visitor; and
(b)subsection (6)(b) does not require the searcher to make efforts if it would be unreasonable in the particular circumstances to make efforts to return the thing to the visitor.
(8)Regard must be had to a thing’s nature, condition and value in deciding—
(a)whether it is reasonable to make inquiries or efforts; and
(b)if making inquiries or efforts—what inquiries or efforts, including the period over which they are made, are reasonable.
(9)In this section—
authorised inspector, for an Act, means a person who is authorised under the Act to perform inspection and enforcement functions.
seizure provisions, of an Act, means the provisions of the Act relating to the access to, and retention, disposal and forfeiture of, a thing after its seizure under the Act .

404Receipt for seized thing

(1)A person authorised under this part to carry out a search must give a receipt for a thing seized to the person from whom it was seized.
(2)The receipt must describe generally the thing seized and its condition.

405Access to seized thing

(1)This section applies to a thing seized on a search under this part.
(2)Until the thing is forfeited or returned under this division, the searcher must allow its owner to inspect it and, if it is a document, to copy it.
(3)Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.

Division 9 Identity cards

406Approval of identity card

(1)The administrator of an authorised mental health service that is a high security unit or approved service must approve an identity card for each authorised security officer for the service.
(2)An approved identity card for an authorised security officer must—
(a)contain a recent photograph of the officer; and
(b)identify the person as an authorised security officer.
(3)In this section—
approved service means an authorised mental health service, or part of an authorised mental health service, approved by the chief psychiatrist under section 389 (b) for the purpose of division 4, or under section 391 (b) for the purpose of division 5.

Division 10 Compensation

407Compensation for damage to possessions

(1)A patient or visitor (the claimant) may claim from the State the cost of repairing or replacing the claimant’s possessions damaged in the exercise or purported exercise of a power under this part.
(2)The cost may be claimed and ordered in a proceeding—
(a)brought in a court of competent jurisdiction; or
(b)for an offence against this Act brought against the claimant.
(3)A court may order an amount be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.
(4)A regulation may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order.

Division 11 Exclusion of visitors

408Administrator may refuse to allow person to visit patient

(1)The administrator of an authorised mental health service may refuse to allow a person to visit a patient of the service if the administrator is satisfied the proposed visit will adversely affect the patient’s treatment and care.

Example for subsection (1)—

The administrator may be satisfied a patient’s treatment and care will be adversely affected if, on a previous visit by a person, the patient’s mental state deteriorated.
(2)The administrator must give the person written notice of the decision.
(3)The notice must state—
(a)the reasons for the decision; and
(b)that the person may appeal to the tribunal against the decision within 28 days after the person receives the notice; and
(c)how the appeal is made.
(4)This section does not permit the administrator to refuse to allow either of the following to visit a patient of the service—
(a)a person performing a function under an Act, including, for example, a community visitor performing a function under the Public Guardian Act 2014 ;
(b)a legal representative or health practitioner requested by the patient to visit.

Chapter 12 Mental Health Review Tribunal proceedings

Part 1 Preliminary

409Purpose of ch 12

The purpose of this chapter is to provide for the tribunal—
(a)to review the following—
(i)treatment authorities;
(ii)forensic orders;
(iii)treatment support orders;
(iv)the fitness for trial of particular persons;
(v)the detention of minors in high security units; and
(b)to hear applications for the following—
(i)examination authorities;
(ii)approvals of regulated treatment;
(iii)approvals of transfers of particular persons into and out of Queensland.

410Particular decisions of no effect for classified patient

(1)This section applies if the tribunal does any of the following on a review of a treatment authority, forensic order or treatment support order for a person who is a classified patient—
(a)changes the category of the authority or order to community;
(b)orders limited community treatment for the person;
(c)approves limited community treatment for the person.
(2)The change, order or approval is of no effect while the person is a classified patient.

Part 2 Review of treatment authorities

Division 1 Preliminary

411Definitions for pt 2

In this part—
applicant review, of a treatment authority, see section 413(2).
periodic review, of a treatment authority, see section 413(1).
review, of a treatment authority, means any of the following—
(a)a periodic review of the authority;
(b)an applicant review of the authority;
(c)a tribunal review of the authority.
tribunal review, of a treatment authority, see section 413(3) and (4).

412Matters to which tribunal must have regard

(1)In making a decision under this part in relation to a review of a treatment authority, the tribunal must have regard to the relevant circumstances of the person subject to the authority.

Examples of decisions in relation to a review of a treatment authority—

deciding whether to confirm or revoke the authority
deciding whether to confirm or change the category of the authority
deciding whether the person is to receive any treatment in the community
deciding whether to change or remove a condition to which the authority is subject or to impose a condition on the authority
(2)Subsection (1) does not limit any other provision of this part that requires the tribunal to have regard to a stated matter.

Division 2 When particular reviews are conducted

413When reviews are conducted

(1)The tribunal must review (a periodic review) a treatment authority—
(a)within 28 days after the authority is made; and
(b)within 6 months after the review under paragraph (a) is completed; and
(c)within 6 months after the review under paragraph (b) is completed; and
(d)at intervals of not more than 12 months after the review under paragraph (c) is completed.
(2)Also, the tribunal must review (an applicant review) a treatment authority on application by—
(a)the person subject to the authority; or
(b)an interested person for the person mentioned in paragraph (a); or
(c)the chief psychiatrist.
(3)Further, the tribunal may at any time, on its own initiative, review (a tribunal review) a treatment authority.
(4)If the tribunal receives written notice under section 210(3) of the amendment of a treatment authority, the tribunal must review (also a tribunal review) the authority within 14 days after receiving the notice.
(5)This section is subject to sections 414 to 416 and chapter 16, part 2, division 6, subdivision 2.

414When periodic review deferred

(1)This section applies if—
(a)an applicant review or a tribunal review (each a previous review) of a treatment authority has been completed—
(i)within 6 months before a periodic review (the next scheduled review) of the treatment authority must be conducted under section 413(1)(b) or (c); or
(ii)within 12 months before a periodic review (also the next scheduled review) of the treatment authority must be conducted under section 413(1)(d); and
(b)the tribunal is satisfied there are no matters relevant to the next scheduled review that were not considered by the tribunal on the previous review.
(2)Section 413(1) is taken to require the next scheduled review of the treatment authority to be conducted—
(a)if the next scheduled review is to be conducted under section 413(1)(b) or (c)—within 6 months after the previous review was completed; or
(b)if the next scheduled review is to be conducted under section 413(1)(d)—within 12 months after the previous review was completed.

415When tribunal must not conduct review

The tribunal must not conduct a review of a treatment authority if—
(a)an appeal to the Mental Health Court against the tribunal’s decision on a review of the authority is pending; and
(b)the court has stayed the tribunal’s decision on the review of the authority.

416When particular tribunal review is not required

(1)This section applies to a tribunal review of a treatment authority mentioned in section 413(4), if the tribunal receives written notice under section 210(5) of the amendment of the authority.
(2)The tribunal is not required to conduct, or complete the hearing of, the review.

Division 3 Applications and notices of hearings

417Application for applicant review to state orders sought

(1)An application for an applicant review of a treatment authority must state the orders sought by the applicant.
(2)An order sought must be an order mentioned in division 4.

418Notice of hearing

(1)The tribunal must give each of the following persons written notice of the hearing of a review of a treatment authority—
(a)the person subject to the authority;
(b)for an applicant review, if the person is not the applicant—the applicant;
(c)the administrator of the authorised mental health service responsible for the person;
(d)if the person is a classified patient—the chief psychiatrist.
(2)The notice must be given at least 7 days before the hearing.
(3)If the review is a tribunal review, the notice must state—
(a)for a tribunal review mentioned in section 413(4)—that the tribunal proposes to consider whether to confirm the category of the treatment authority as inpatient; or
(b)for another tribunal review—any particular matter the tribunal proposes to consider on the review.

Division 4 Decisions and orders

Subdivision 1 Decisions to be made on review

419Decisions

(1)On a periodic review of a treatment authority, the tribunal must decide to—
(a)confirm the authority; or
(b)revoke the authority.

Note—

See subdivision 2 for the orders the tribunal may make if it confirms the authority.
(2)On an applicant review of a treatment authority, the tribunal—
(a)must decide whether to make the orders sought by the applicant; and
(b)may make the orders under this division it considers appropriate.
(3)On a tribunal review of a treatment authority, the tribunal—
(a)must decide any particular matter stated in the notice given under section 418(3); and
(b)may make the orders under this division it considers appropriate.

420Administrator to provide report

(1)For a periodic review of a treatment authority under section 413(1)(c), if the person subject to the authority does not have a personal guardian—
(a)the administrator of the person’s treating health service must give the tribunal a report about whether the appointment of a personal guardian for the person may result in there being a less restrictive way for the person to receive treatment and care for the person’s mental illness; and
(b)the tribunal must consider whether the appointment of a personal guardian for the person may result in there being a less restrictive way for the person to receive treatment and care for the person’s mental illness.
(2)In this section—
health matter see the Guardianship and Administration Act 2000 , schedule 2 , section 4 .
personal guardian, of a person, means a guardian for a health matter appointed by QCAT for the person under the Guardianship and Administration Act 2000 .

s 420 amd 2017 No. 3s 36

421Requirement to revoke treatment authority

(1)On a review of a treatment authority, the tribunal must revoke the authority if the tribunal considers—
(a)the treatment criteria no longer apply to the person subject to the authority; or
(b)there is a less restrictive way for the person to receive treatment and care for the person’s mental illness.
(2)However, subsection (1) does not apply if the tribunal considers the person’s capacity to consent to be treated for the person’s mental illness is not stable.

Example of when a person’s capacity to consent is not stable—

the person gains and loses capacity to consent to be treated during a short time period

Subdivision 2 Confirmation of treatment authority—related orders

422Application of sdiv 2

This subdivision applies if, on a review of a treatment authority, the tribunal confirms the authority.

423Change of category to community

If the category of the treatment authority is inpatient, the tribunal must change the category of the authority to community unless the tribunal considers that 1 or more of the following can not reasonably be met if the category of the authority is community—
(a)the person’s treatment and care needs;
(b)the safety and welfare of the person;
(c)the safety of others.

424Community category—deciding whether authorised doctor may reduce treatment in community

(1)This section applies if—
(a)the category of the treatment authority is community; or
(b)the tribunal changes the category of the treatment authority to community under section 423.
(2)The tribunal must decide whether an authorised doctor may, at a future time, reduce the extent of treatment in the community received by the person.

425Inpatient category—limited community treatment

(1)This section applies if the category of the treatment authority is inpatient.
(2)The tribunal may approve limited community treatment, or an extension of limited community treatment, for the person.
(3)In deciding whether to approve or extend limited community treatment under subsection (2), the tribunal must have regard to the purpose of limited community treatment.
(4)If the tribunal approves or extends limited community treatment under subsection (2), the tribunal must decide whether an authorised doctor may, at a future time, reduce the extent of treatment in the community received by the person.

426Conditions

(1)The tribunal may—
(a)change or remove a condition to which the treatment authority is subject; or
(b)impose a condition on the treatment authority.
(2)However, the tribunal may not impose a condition on the treatment authority that requires the person to take a particular medication or a particular dosage of a medication.

427Transfer to another authorised mental health service

(1)The tribunal may order the person’s transfer to another authorised mental health service to provide treatment and care for the person.
(2)In deciding whether to order the person’s transfer under subsection (1), the tribunal must have regard to the following—
(a)the person’s mental state and psychiatric history;
(b)the person’s treatment and care needs;
(c)the capacity of the authorised mental health service to which the person is to be transferred;
(d)whether the transfer would be in the best interests of the person, including, for example, closer proximity to the person’s family, carers and other support persons.

428Change of category to inpatient

(1)This section applies if the category of the treatment authority is community.
(2)The tribunal may change the category of the treatment authority to inpatient, but only if the tribunal considers it is reasonably necessary for an authorised doctor to examine the person in order to review the person’s treatment and care needs.

Note—

Under section 209 , the authorised doctor who examines the person may change the nature or extent of the person’s treatment in the community.
(3)If the tribunal changes the category of the treatment authority under this section to inpatient, the tribunal may authorise an authorised person to transport the person to an inpatient unit of a stated authorised mental health service.
(4)For subsection (3), an authorised person may transport the person to an inpatient unit of the stated authorised mental health service.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.

429Other orders

Subject to the other provisions of this subdivision, the tribunal may provide for any other matter the tribunal considers appropriate.

Part 3 Review of forensic orders (mental health) and forensic orders (disability)

Division 1 Preliminary

430Application of pt 3

This part applies to a forensic order (mental health) or forensic order (disability).

431Definitions for pt 3

In this part—
applicant review, of a forensic order (mental health) or forensic order (disability), see section 433(2).
periodic review, of a forensic order (mental health) or forensic order (disability), see section 433(1).
review, of a forensic order (mental health) or forensic order (disability), means—
(a)an applicant review of the order; or
(b)a periodic review of the order; or
(c)a tribunal review of the order.
tribunal review, of a forensic order (mental health) or forensic order (disability), see section 433(3) and (4).

432Matters to which tribunal must have regard

(1)In making a decision under this part in relation to a review of a forensic order (mental health) or forensic order (disability), the tribunal must have regard to the following—
(a)the relevant circumstances of the person subject to the order;
(b)the nature of the relevant unlawful act and the period of time that has passed since the act happened;
(c)any victim impact statement given to the tribunal under section 155 or 742 relating to the relevant unlawful act;
(d)if the Mental Health Court made a recommendation in the order about an intervention program for the person—the person’s willingness to participate in the program if offered to the person.

Examples of decisions in relation to a review of a forensic order—

deciding whether to confirm or revoke the order
deciding whether to confirm or change the category of the order
deciding whether the person is to receive any treatment in the community
deciding whether to change or remove a condition to which the order is subject or to impose a condition on the order
(2)Subsection (1) does not limit any other provision of this part that requires the tribunal to have regard to a stated matter.

Division 2 When particular reviews are conducted

433When reviews are conducted

(1)The tribunal must review (a periodic review) the forensic order—
(a)within 6 months after the order is made; and
(b)at intervals of not more than 6 months after the review under paragraph (a) is completed.
(2)Also, the tribunal must review (an applicant review) the forensic order on application by—
(a)the person subject to the order; or
(b)an interested person for the person mentioned in paragraph (a); or
(c)the Attorney-General; or
(d)if an authorised mental health service is responsible for the person—the chief psychiatrist; or
(e)if the forensic disability service is responsible for the person—the director of forensic disability.
(3)Further, the tribunal may at any time, on its own initiative, review (a tribunal review) the forensic order.
(4)If the tribunal receives written notice under section 213 (3) of the amendment of the forensic order, the tribunal must review (also a tribunal review) the order within 21 days after receiving the notice.
(5)This section is subject to sections 434 to 437 and chapter 16, part 2, division 6, subdivision 2.

434When periodic review deferred

(1)This section applies if—
(a)an applicant review or a tribunal review (each a previous review) of the forensic order has been completed within 6 months before a periodic review (the next scheduled review) of the order must be conducted under section 433(1)(a) or (b); and
(b)the tribunal is satisfied there are no matters relevant to the next scheduled review that were not considered by the tribunal on the previous review.
(2)Section 433(1) is taken to require the next scheduled review of the forensic order to be conducted within 6 months after the previous review was completed.

435Requirement to conduct periodic review suspended

(1)This section applies if the person who is subject to the forensic order is transferred to an interstate mental health service under part 10, division 2.
(2)While the interstate mental health service is responsible for the person, the tribunal is not required to conduct a periodic review of the forensic order under section 433(1).

436When tribunal must not conduct review

The tribunal must not conduct a review of the forensic order if—
(a)an appeal to the Mental Health Court against the tribunal’s decision on a review of the order is pending; and
(b)the court has stayed the tribunal’s decision on the review of the order.

437When particular tribunal review is not required

(1)This section applies to a tribunal review of the forensic order mentioned in section 433(4), if the tribunal receives written notice under section 213 (5) of the amendment of the order.
(2)The tribunal is not required to conduct, or complete the hearing of, the review.

Division 3 Applications and notices of hearings

438Application for applicant review to state orders sought

(1)An application for an applicant review of the forensic order must state the orders sought by the applicant.
(2)An order sought must be an order mentioned in division 4 or 6.
(3)However, during any non-revocation period for the forensic order, the application may seek an order revoking the forensic order only if the revocation is sought under section 457.

439Notice of hearing

(1)The tribunal must give each of the following persons written notice of the hearing of a review of the forensic order—
(a)the person subject to the order;
(b)for an applicant review, if the person is not the applicant—the applicant;
(c)if an authorised mental health service is responsible for the person—
(i)the administrator of the service; and
(ii)the chief psychiatrist;
(d)if the forensic disability service is responsible for the person—
(i)the administrator of the service; and
(ii)the director of forensic disability;
(e)the Attorney-General.
(2)The notice must be given at least 14 days before the hearing.
(3)If the review is a tribunal review, the notice must state—
(a)for a tribunal review mentioned in section 433(4)—that the tribunal proposes to consider whether to confirm the category of the forensic order as inpatient; or
(b)for another tribunal review—any particular matter the tribunal proposes to consider on the review.

Division 4 Decisions and orders

Subdivision 1 Decisions to be made on review

440Application of div 4

This division is subject to division 5.

441Decisions

(1)On a periodic review of the forensic order, the tribunal must decide to—
(a)confirm the order; or
(b)revoke the order.

Notes—

1See subdivision 2 for the orders the tribunal may make if it confirms the order.
2See subdivision 3 for the orders the tribunal may make if the order is a forensic order (mental health) and the tribunal revokes the order.
(2)On an applicant review of the forensic order, the tribunal—
(a)must decide whether to make the orders sought by the applicant; and
(b)may make the orders under this division it considers appropriate.

Example for paragraph (b)—

If an applicant seeks an order changing the category of the forensic order from inpatient to community, the tribunal may decide not to change the category of the order, but may order that the person have limited community treatment of a stated extent.
(3)On a tribunal review of the forensic order, the tribunal—
(a)must decide any particular matter stated in the notice given under section 439(3); and
(b)may make the orders under this division it considers appropriate.

442Requirement to confirm forensic order

(1)The tribunal must confirm the forensic order if the tribunal considers the order is necessary, because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property.
(2)Also, during any non-revocation period for the forensic order, the tribunal is taken, for section 443, to have confirmed the order.

Note—

The tribunal must not revoke the forensic order during the non-revocation period for the order. See section 452 .
(3)Subsection (2) does not apply if the forensic order is a forensic order (mental health) and the tribunal decides to revoke the order under section 457.

Subdivision 2 Confirmation of forensic order—related orders

443Application of sdiv 2

This subdivision applies if, on a review of the forensic order, the tribunal confirms the order.

444Change or confirmation of category

(1)The tribunal may change the category of the forensic order.
(2)However, the tribunal may change the category of the forensic order to community, or confirm the category of the order as community, only if the tribunal is satisfied there is not an unacceptable risk to the safety of the community, because of the person’s mental condition, including the risk of serious harm to other persons or property.
(3)This section is subject to section 445.

445Inpatient category—orders about treatment in community

(1)This section applies if the tribunal—
(a)confirms the category of the forensic order as inpatient; or
(b)changes the category of the forensic order to inpatient.
(2)The tribunal must do 1 of the following—
(a)order that the person have no limited community treatment;

Note—

An order made under paragraph (a) may not be amended by an authorised doctor. See section 212 (2).
(b)approve that an authorised doctor under section 212 or a senior practitioner under the Forensic Disability Act, section 20 may, at a future time—
(i)authorise limited community treatment for the person, to the extent and subject to the conditions decided by the tribunal; or
(ii)change the category of the order to community, subject to the conditions decided by the tribunal;
(c)order that the person have limited community treatment—
(i)of a stated extent; and
(ii)subject to the conditions decided by the tribunal, including whether, or the extent to which, an authorised doctor under section 212 or a senior practitioner under the Forensic Disability Act, section 20 may amend the forensic order in relation to treatment in the community.
(3)The tribunal may make an order under subsection (2)(b) or (c) only if the tribunal is satisfied there is not an unacceptable risk to the safety of the community, because of the person’s mental condition, including the risk of serious harm to other persons or property.
(4)In deciding whether the tribunal is satisfied of the matters mentioned in subsection (3), the tribunal must have regard to—
(a)the purpose of limited community treatment; and
(b)the fact that—
(i)if an authorised mental health service is responsible for the person—an authorised doctor may increase the extent of treatment in the community for the person only if satisfied of the matters mentioned in section 212 (3); or
(ii)if the forensic disability service is responsible for the person—a senior practitioner under the Forensic Disability Act may authorise treatment in the community for the person only if satisfied of the matters mentioned in the Forensic Disability Act, section 20 (2).

446Community category—orders about treatment in community

(1)This section applies if the tribunal—
(a)confirms the category of the forensic order as community; or
(b)changes the category of the forensic order to community.
(2)The tribunal must—
(a)order that an authorised doctor or a senior practitioner under the Forensic Disability Act must not change the category of the order to inpatient; or
(b)approve that an authorised doctor under section 212 or a senior practitioner under the Forensic Disability Act, section 20 may, at a future time, change the nature or extent of treatment in the community received by the person, to the extent and subject to the conditions decided by the tribunal.

Example of a change of extent of treatment in the community—

changing the category of the forensic order from community to inpatient, with or without limited community treatment

447Conditions

(1)The tribunal may—
(a)change or remove a condition to which the forensic order is subject; or
(b)impose a condition on the forensic order.
(2)Without limiting subsection (1), the tribunal may impose a condition that the person must not contact a stated person, including, for example, a victim of the relevant unlawful act.
(3)However, the tribunal may not impose a condition on the forensic order that requires the person to take a particular medication or a particular dosage of a medication.

448Other orders

Subject to the other provisions of this subdivision, the tribunal may provide for any other matter the tribunal considers appropriate.

Subdivision 3 Revocation of forensic order (mental health)—related orders

449Application of sdiv 3

This subdivision applies if—
(a)the forensic order is a forensic order (mental health); and
(b)the tribunal decides to revoke the forensic order.

450Making of treatment support order

(1)The tribunal must decide to make a treatment support order for the person if the tribunal considers a treatment support order, but not a forensic order, is necessary, because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property.
(2)For making a treatment support order under subsection (1), sections 144 and 145 apply as if—
(a)a reference in the sections to the Mental Health Court were a reference to the tribunal; and
(b)a reference in the sections to the person the subject of the reference were a reference to the person subject to the forensic order.

451Making of treatment authority or no further order

(1)If the tribunal considers that neither a forensic order nor a treatment support order is necessary, because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property, the tribunal may—
(a)make no further order for the person; or
(b)make a treatment authority for the person.
(2)The tribunal may make a treatment authority for the person under subsection (1)(b) only on the recommendation of an authorised psychiatrist who considers, after examining the person, that—
(a)the treatment criteria apply to the person; and
(b)there is no less restrictive way for the person to receive treatment and care for the person’s mental illness.
(3)The treatment authority must state the following—
(a)the category of the authority;
(b)the authorised mental health service responsible for the person;
(c)the nature and extent of any limited community treatment the person is to receive;
(d)any conditions the tribunal considers necessary for the person’s treatment and care, other than a condition requiring the person to take a particular medication or a particular dosage of a medication.
(4)The tribunal may decide the category of the treatment authority is inpatient only if the tribunal is satisfied that 1 or more of the following can not reasonably be met if the category of the authority is community—
(a)the person’s treatment and care needs;
(b)the safety and welfare of the person;
(c)the safety of others.
(5)However, if the person is a classified patient, the tribunal must decide the category of the authority is inpatient.
(6)In deciding the nature and extent of any limited community treatment under subsection (3)(c), the tribunal must have regard to the purpose of limited community treatment.
(7)If the tribunal decides the category of the treatment authority is community, the tribunal must decide whether an authorised doctor may, at a future time, reduce the extent of treatment in the community received by the person.
(8)The treatment authority is taken to be a treatment authority made under section 49 by the authorised psychiatrist mentioned in subsection (2).
(9)Despite subsection (8) and section 413(1), the tribunal must review the treatment authority—
(a)within 6 months after the authority is made; and
(b)within 6 months after the review under paragraph (a) is completed; and
(c)at intervals of not more than 12 months after the review under paragraph (b) is completed.
(10)Sections 53 and 59 apply to the treatment authority as if a reference in the sections to the authorised doctor were a reference to the authorised psychiatrist mentioned in subsection (2).
(11)As soon as practicable after the treatment authority is made, the authorised psychiatrist mentioned in subsection (2) must decide the nature and extent of the treatment and care to be provided to the person under the authority.

s 451 amd 2017 No. 3s 37

Division 5 Restrictions on revoking or amending forensic orders

452Orders with non-revocation period

(1)The tribunal must not revoke a forensic order under division 4 during any non-revocation period for the order.
(2)Subsection (1) is subject to section 457.

453Order for person temporarily unfit for trial

(1)This section applies to a person subject to a forensic order if—
(a)a finding of unfitness has been made in relation to the person; and
(b)the proceeding against the person in relation to which the finding of unfitness was made has not been discontinued under section 490 or 491.
(2)The tribunal must not revoke the forensic order unless a treatment support order is made for the person under section 450.

Note—

If, on a review under part 6 , the tribunal decides the person is fit for trial, the forensic order ends on the person’s appearance at the mention of the proceeding for the relevant offence. See section 497 (2).

454Order for person charged with prescribed offence

(1)This section applies if a forensic order for a person was made on a reference in relation to a prescribed offence allegedly committed by the person.
(2)The tribunal must not revoke the forensic order unless—
(a)the person has been examined, under an order made under section 721, by an examining practitioner; and
(b)the tribunal has obtained and considered the examining practitioner’s written report on the examination.
(3)This section is subject to section 452.

455Tribunal’s order takes effect after suspension or change of category ends

(1)This section applies if—
(a)the chief psychiatrist has, under section 313, suspended limited community treatment for the person or changed the category of the forensic order for the person to inpatient; and

Note—

Under section 313 , the suspension of limited community treatment or change of category of the forensic order is for a period of not more than 7 days. The person may appeal to the tribunal against the chief psychiatrist’s decision. See section 533 .
(b)the suspension, or the change of category, is in effect when the tribunal—
(i)orders or approves limited community treatment for the person; or
(ii)orders that the category of the forensic order be changed to community.
(2)The tribunal’s order or approval takes effect when the suspension, or change of category, ends.

Division 6 Other provisions

456Transfer of responsibility for forensic patient

(1)On a review of a forensic order, the tribunal may order that responsibility for the person subject to the order be transferred to—
(a)if an authorised mental health service is responsible for the person—another authorised mental health service; or
(b)if an authorised mental health service is responsible for the person and the person is subject to a forensic order (disability)—another authorised mental health service or the forensic disability service; or
(c)if the forensic disability service is responsible for the person—an authorised mental health service.
(2)In deciding whether to make an order under subsection (1), the tribunal must have regard to each of the following—
(a)the person’s mental state and psychiatric history;
(b)any intellectual disability of the person;
(c)the person’s treatment and care needs;
(d)the security requirements for the person;
(e)if responsibility for the person is to be transferred to an authorised mental health service—the capacity of the authorised mental health service to which the person is to be transferred;
(f)whether the transfer would be in the best interests of the person, including, for example, closer proximity to the person’s family, carers and other support persons.
(3)However, the tribunal may order under subsection (1) that responsibility for the person be transferred to the forensic disability service only if the chief executive (forensic disability) certifies, in writing, that the forensic disability service has—
(a)the physical capacity to accommodate the person; and
(b)the capacity to provide care for the person under the order.
(4)For subsection (3), section 148 applies as if—
(a)a reference in the section to the Mental Health Court were a reference to the tribunal; and
(b)a reference in the section to section 147 were a reference to subsection (1).

457Person with dual disability

(1)This section applies to a person who—
(a)has a dual disability; and
(b)is subject to a forensic order (mental health).
(2)If the tribunal is satisfied the person no longer requires involuntary treatment and care for the person’s mental illness, the tribunal must—
(a)revoke the forensic order (mental health); and
(b)make a forensic order (disability) for the person.
(3)For making the forensic order (disability), section 135 and chapter 5 , part 4 , division 2, subdivision 2 apply as if—
(a)a reference in the provisions to the Mental Health Court were a reference to the tribunal; and
(b)a reference in the provisions to the person the subject of the reference were a reference to the person subject to the forensic order (mental health).
(4)If there was a non-revocation period for the forensic order (mental health), the forensic order (disability) is taken to have the same non-revocation period.
(5)For subsection (4), the forensic order (disability) is taken to have been made when the forensic order (mental health) was made.
(6)The revocation of the forensic order (mental health) under this section does not affect any recommendation made by the court under section 136 .

Part 4 Review of forensic orders (Criminal Code)

458Application of pt 4

This part applies to a forensic order (Criminal Code).

459Tribunal to conduct hearing

The tribunal must, within 21 days after the tribunal is notified of the making of the forensic order (Criminal Code) for a person, conduct a hearing for the purpose of making a forensic order (mental health) or forensic order (disability) for the person.

460Notice of hearing

(1)The tribunal must give the following persons written notice of the hearing—
(a)the person;
(b)the Attorney-General;
(c)the chief psychiatrist;
(d)the director of forensic disability;
(e)the administrator of the authorised mental health service to which the person has been admitted under the forensic order (Criminal Code).
(2)The notice must be given at least 14 days before the hearing.

461Making of forensic order

(1)The tribunal must make a forensic order (mental health) for the person unless subsection (2) applies.
(2)The tribunal must make a forensic order (disability) for the person if the tribunal considers—
(a)the person has an intellectual disability but does not have a dual disability; or
(b)the person has a dual disability but does not require involuntary treatment and care for the person’s mental illness.
(3)On the making of the forensic order under subsection (1) or (2), the forensic order (Criminal Code) ends.

462Application of ch 5 provisions

For making a forensic order (mental health) or forensic order (disability) under section 461, section 135 and chapter 5 , part 4 , division 2, subdivision 2 apply as if—
(a)a reference in the provisions to the Mental Health Court were a reference to the tribunal; and
(b)a reference in the provisions to the person the subject of the reference were a reference to the person subject to the forensic order (Criminal Code).

Part 5 Review of treatment support orders

Division 1 Preliminary

463Definitions for pt 5

In this part—
applicant review, of a treatment support order, see section 465(2).
periodic review, of a treatment support order, see section 465(1).
review, of a treatment support order, means any of the following—
(a)a periodic review of the order;
(b)an applicant review of the order;
(c)a tribunal review of the order.
tribunal review, of a treatment support order, see section 465(3) and (4).

464Matters to which tribunal must have regard

(1)In making a decision under this part in relation to a review of a treatment support order, the tribunal must have regard to the following—
(a)the relevant circumstances of the person subject to the order;
(b)the nature of the relevant unlawful act and the period of time that has passed since the act happened;
(c)any victim impact statement given to the tribunal under section 155 or 742 relating to the relevant unlawful act;
(d)if the order was made because a forensic order (mental health) for the person was revoked and the Mental Health Court made a recommendation in the forensic order about an intervention program for the person—the person’s willingness to participate in the program if offered to the person.

Note—

See section 450 for when the tribunal, on deciding to revoke a forensic order (mental health) for a person, may make a treatment support order for the person.

Examples of decisions in relation to a review of a treatment support order—

deciding whether to confirm or revoke the order
deciding whether to confirm or change the category of the order
deciding whether the person is to receive any treatment in the community
deciding whether to change or remove a condition to which the order is subject or to impose a condition on the order
(2)Subsection (1) does not limit any other provision of this part that requires the tribunal to have regard to a stated matter.

Division 2 When particular reviews are conducted

465When reviews are conducted

(1)The tribunal must review (a periodic review) a treatment support order—
(a)within 6 months after the order is made; and
(b)at intervals of not more than 6 months after the review under paragraph (a) is completed.
(2)Also, the tribunal must review (an applicant review) a treatment support order on application by—
(a)the person subject to the order; or
(b)an interested person for the person mentioned in paragraph (a); or
(c)the chief psychiatrist.
(3)Further, the tribunal may at any time, on its own initiative, review (a tribunal review) a treatment support order.
(4)If the tribunal receives written notice under section 217 (3) of the amendment of a treatment support order, the tribunal must review (also a tribunal review) the order within 14 days after receiving the notice.
(5)This section is subject to sections 466 to 469 and chapter 16, part 2, division 6, subdivision 2.

466When periodic review deferred

(1)This section applies if—
(a)an applicant review or a tribunal review (each a previous review) of a treatment support order has been completed within 6 months before a periodic review (the next scheduled review) of the order must be conducted under section 465(1)(a) or (b); and
(b)the tribunal is satisfied there are no matters relevant to the next scheduled review that were not considered by the tribunal on the previous review.
(2)Section 465(1) is taken to require the next scheduled review of the treatment support order to be conducted within 6 months after the previous review was completed.

467Requirement to conduct periodic review suspended

(1)This section applies if a person who is subject to a treatment support order is transferred to an interstate mental health service under part 10, division 2.
(2)While the interstate mental health service is responsible for the person, the tribunal is not required to conduct a periodic review of the treatment support order under section 465(1).

468When tribunal must not conduct review

The tribunal must not conduct a review of a treatment support order if—
(a)an appeal to the Mental Health Court against the tribunal’s decision on a review of the order is pending; and
(b)the court has stayed the tribunal’s decision on the review of the order.

469When particular tribunal review is not required

(1)This section applies to a tribunal review of a treatment support order mentioned in section 465(4), if the tribunal receives written notice under section 217 (5) of the amendment of the order.
(2)The tribunal is not required to conduct, or complete the hearing of, the review.

Division 3 Applications and notices of hearings

470Application for applicant review to state orders sought

(1)An application for an applicant review of a treatment support order must state the orders sought by the applicant.
(2)An order sought must be an order mentioned in division 4.

471Notice of hearing

(1)The tribunal must give each of the following persons written notice of the hearing of a review of a treatment support order—
(a)the person subject to the order;
(b)for an applicant review, if the person is not the applicant—the applicant;
(c)the administrator of the authorised mental health service responsible for the person;
(d)the chief psychiatrist.
(2)The notice must be given at least 7 days before the hearing.
(3)If the review is a tribunal review, the notice must state—
(a)for a tribunal review mentioned in section 465(4)—that the tribunal proposes to consider whether to confirm the category of the treatment support order as inpatient; or
(b)for another tribunal review—any particular matter the tribunal proposes to consider on the review.

Division 4 Decisions and orders

Subdivision 1 Decisions to be made on review

472Decisions

(1)On a periodic review of a treatment support order, the tribunal must decide to—
(a)confirm the order; or
(b)revoke the order.

Notes—

1See subdivision 2 for the orders the tribunal may make if it confirms the order.
2See subdivision 3 for the orders the tribunal may make if it revokes the order.
(2)On an applicant review of a treatment support order, the tribunal—
(a)must decide whether to make the orders sought by the applicant; and
(b)may make the orders under this division it considers appropriate.
(3)On a tribunal review of a treatment support order, the tribunal—
(a)must decide any particular matter stated in the notice given under section 471(3); and
(b)may make the orders under this division it considers appropriate.

473Requirement to confirm treatment support order

(1)On a review of a treatment support order, the tribunal must confirm the order if the tribunal considers the order is necessary, because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property.
(2)Also, the tribunal must confirm the treatment support order if—
(a)a finding of unfitness has been made in relation to the person; and
(b)the person has not been found fit for trial on a review of the person’s fitness for trial under chapter 12 , part 6 ; and
(c)the proceeding for the relevant offence has not been discontinued under section 490 or 491.

Subdivision 2 Confirmation of treatment support order—related orders

474Application of sdiv 2

This subdivision applies if, on a review of a treatment support order, the tribunal confirms the order.

475Change of category to community

If the category of the treatment support order is inpatient, the tribunal must change the category of the order to community unless the tribunal considers that 1 or more of the following can not reasonably be met if the category of the order is community—
(a)the person’s treatment and care needs;
(b)the safety and welfare of the person;
(c)the safety of others.

476Community category—deciding whether authorised doctor may reduce treatment in community

(1)This section applies if—
(a)the category of the treatment support order is community; or
(b)the tribunal changes the category of the treatment support order to community under section 475.
(2)The tribunal must decide whether an authorised doctor may, under section 216 (1), amend the person’s treatment support order to reduce the extent of treatment in the community received by the person.

477Inpatient category—limited community treatment

(1)This section applies if the category of the treatment support order is inpatient.
(2)The tribunal may approve limited community treatment, or an extension of limited community treatment, for the person.
(3)In deciding whether to approve or extend limited community treatment under subsection (2), the tribunal must have regard to the purpose of limited community treatment.
(4)If the tribunal approves or extends limited community treatment under subsection (2), the tribunal must also decide whether an authorised doctor may, under section 216 (1), amend the person’s treatment support order to reduce the extent of treatment in the community received by the person.

478Conditions

(1)The tribunal may—
(a)change or remove a condition to which the treatment support order is subject; or
(b)impose a condition on the treatment support order.
(2)Without limiting subsection (1), the tribunal may impose a condition that the person must not contact a stated person, including, for example, a victim of the relevant unlawful act.
(3)However, the tribunal may not impose a condition on the treatment support order that requires the person to take a particular medication or a particular dosage of a medication.

479Transfer to another authorised mental health service

(1)The tribunal may order the person’s transfer to another authorised mental health service to provide treatment and care for the person.
(2)In deciding whether to order the person’s transfer under subsection (1), the tribunal must have regard to the following—
(a)the person’s mental state and psychiatric history;
(b)the person’s treatment and care needs;
(c)the security requirements for the person;
(d)the capacity of the authorised mental health service to which the person is to be transferred;
(e)whether the transfer would be in the best interests of the person, including, for example, closer proximity to the person’s family, carers and other support persons.

480Change of category to inpatient

(1)This section applies if the category of the treatment support order is community.
(2)The tribunal may change the category of the order to inpatient, but only if the tribunal considers it is reasonably necessary for an authorised doctor to examine the person in order to review the person’s treatment and care needs.

Note—

Under section 216 , the authorised doctor who examines the person may change the nature or extent of the person’s treatment in the community.
(3)If the tribunal changes the category of the treatment support order under this section to inpatient, the tribunal may authorise an authorised person to transport the person to an inpatient unit of a stated authorised mental health service.
(4)For subsection (3), an authorised person may transport the person to an inpatient unit of the stated authorised mental health service.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.

481Other orders

Subject to the other provisions of this subdivision, the tribunal may provide for any other matter the tribunal considers appropriate.

Subdivision 3 Revocation of treatment support order—related orders

482Application of sdiv 3

This subdivision applies if the tribunal decides to revoke the treatment support order.

483Making of treatment authority or no further order

(1)The tribunal may—
(a)make no further order for the person; or
(b)make a treatment authority for the person.
(2)The tribunal may make a treatment authority for the person under subsection (1)(b) only on the recommendation of an authorised psychiatrist who considers, after examining the person, that—
(a)the treatment criteria apply to the person; and
(b)there is no less restrictive way for the person to receive treatment and care for the person’s mental illness.
(3)The treatment authority must state the following—
(a)the category of the authority;
(b)the authorised mental health service responsible for the person;
(c)the nature and extent of any limited community treatment the person is to receive;
(d)any conditions the tribunal considers necessary for the person’s treatment and care, other than a condition requiring the person to take a particular medication or a particular dosage of a medication.
(4)The tribunal may decide the category of the treatment authority is inpatient only if the tribunal is satisfied that 1 or more of the following can not reasonably be met if the category of the authority is community—
(a)the person’s treatment and care needs;
(b)the safety and welfare of the person;
(c)the safety of others.
(5)In deciding the nature and extent of any limited community treatment under subsection (3)(c), the tribunal must have regard to the purpose of limited community treatment.
(6)If the tribunal decides the category of the treatment authority is community, the tribunal must decide whether an authorised doctor may, at a future time, reduce the extent of treatment in the community received by the person.
(7)The treatment authority is taken to be a treatment authority made under section 49 by the authorised psychiatrist mentioned in subsection (2).
(8)Despite subsection (7) and section 413(1), the tribunal must review the treatment authority—
(a)within 6 months after the authority is made; and
(b)within 6 months after the review under paragraph (a) is completed; and
(c)at intervals of not more than 12 months after the review under paragraph (b) is completed.
(9)Sections 53 and 59 apply to the treatment authority as if a reference in the sections to the authorised doctor were a reference to the authorised psychiatrist mentioned in subsection (2).
(10)As soon as practicable after the treatment authority is made, the authorised psychiatrist mentioned in subsection (2) must decide the nature and extent of the treatment and care to be provided to the person under the authority.

s 483 amd 2017 No. 3s 38

Part 6 Review of fitness for trial

Division 1 Review

484Application of div 1

This division applies to a person charged with an offence if—
(a)a finding of unfitness has been made in relation to the person; and
(b)the person has not been found fit for trial; and
(c)the proceeding against the person for the offence has not been discontinued under this Act or otherwise.

485Meaning of finding of unfitness

For this division, a finding of unfitness is made in relation to a person if—
(a)on a reference in relation to the person, the Mental Health Court decides under section 118 the person is unfit for trial and the unfitness for trial is not permanent; or

Note—

Under section 132 , the Mental Health Court must make a forensic order (mental health), forensic order (disability) or treatment support order for the person.
(b)on the trial of the person for an indictable offence, a jury makes a section 613 finding or section 645 finding in relation to the person.

486When reviews are conducted

(1)The tribunal must review the person’s fitness for trial—
(a)for the period of 1 year starting on the day the finding of unfitness is made—at intervals of not more than 3 months; and
(b)after the period mentioned in paragraph (a) has ended—at intervals of not more than 6 months after the last review under paragraph (a) is completed.
(2)Also, the tribunal must review the person’s fitness for trial on application by—
(a)the person; or
(b)an interested person for the person mentioned in paragraph (a); or
(c)the chief psychiatrist; or
(d)the director of forensic disability.
(3)Further, the tribunal may at any time, on its own initiative, review the person’s fitness for trial.

487Notice of hearing

(1)The tribunal must give each of the following persons written notice of the hearing of a review of the person’s fitness for trial—
(a)the person;
(b)for a review under section 486(2), if the person is not the applicant—the applicant;
(c)if an authorised mental health service is responsible for the person—
(i)the administrator of the service; and
(ii)the chief psychiatrist;
(d)if the forensic disability service is responsible for the person—
(i)the administrator of the service; and
(ii)the director of forensic disability;
(e)the Attorney-General.
(2)The notice must be given at least 7 days before the hearing.

488Decisions on review

(1)On the hearing of the review, the tribunal must consider the person’s mental state and decide whether the person is fit for trial.
(2)If, on the last review conducted under section 486(1)(a), or on a review conducted under section 486(1)(b), the tribunal decides the person is unfit for trial, the tribunal must also decide whether the person is likely to be fit for trial in a reasonable time.

Division 2 Procedures following review if person unfit for trial

489Application of div 2

This division applies if, on a review under division 1 of the fitness for trial of a person charged with an offence (the relevant offence), the tribunal decides the person is unfit for trial.

490Director of public prosecutions to decide whether proceeding to be discontinued

The director of public prosecutions must—
(a)within 28 days after receiving written notice of the tribunal’s decision, decide whether to discontinue the proceeding against the person for the relevant offence; and

Note—

The tribunal must give the director of public prosecutions written notice of the tribunal’s decision. See section 755 (3).
(b)within 7 days after making the decision under paragraph (a), give the tribunal written notice of the decision.

491Proceeding discontinued at end of prescribed period

(1)The proceeding against the person for the relevant offence is discontinued at the end of the prescribed period if—
(a)the director of public prosecutions has not decided under section 490 to discontinue the proceeding; or
(b)the tribunal has not decided the person is fit for trial.
(2)For subsection (1), the prescribed period is—
(a)for a proceeding for an offence for which the person is liable to life imprisonment—7 years from the day the finding of unfitness was made; or
(b)for a proceeding for another offence—3 years from the day the finding of unfitness was made.
(3)In calculating the prescribed period, the following periods must be disregarded—
(a)a period for which the person is a patient required to return;
(b)a period for which the Forensic Disability Act, section 113 applies to the person.

492Effect of discontinuing proceeding

(1)This section applies if the proceeding against the person for the relevant offence is discontinued—
(a)by the director of public prosecutions under section 490; or
(b)under section 491.
(2)The director of public prosecutions must, within 7 days after the proceeding is discontinued, give each of the following persons written notice of the discontinuance of the proceeding—
(a)the person;
(b)the registrar of the court in which the proceeding for the relevant offence was being conducted;
(c)if the director of public prosecutions was not the prosecuting authority for the relevant offence—the prosecuting authority for the relevant offence;
(d)the tribunal;
(e)if an authorised mental health service is responsible for the person—the chief psychiatrist;
(f)if the forensic disability service is responsible for the person—the director of forensic disability;
(g)the Attorney-General.
(3)The person can not be prosecuted again for the relevant offence.
(4)Despite the discontinuance of the proceeding, the forensic order or treatment support order to which the person is subject continues in force.

Note—

If the proceeding against the person for the offence is discontinued other than under section 490 or 491, the order to which the person is subject ends. See section 154 .

493Proceeding may be discontinued at other time

Nothing in this division prevents the proceeding against the person for the relevant offence being discontinued at any time, other than under section 490 or 491.

Division 3 Procedures following review if person fit for trial

494Application of div 3

This division applies if, on a review under division 1 of the fitness for trial of a person charged with an offence (the relevant offence), the tribunal decides the person is fit for trial.

495Definitions for div 3

In this division—
relevant court means the court in which the proceeding for the relevant offence has been brought.
relevant offence see section 494.

496Director of public prosecutions to give notice of fitness for trial

The director of public prosecutions must, within 7 days after receiving written notice of the tribunal’s decision, give written notice of the tribunal’s decision to—
(a)the registrar of the relevant court; and
(b)if the director of public prosecutions is not the prosecuting authority for the relevant offence—the prosecuting authority for the relevant offence.

Note—

The tribunal must give the director of public prosecutions written notice of the tribunal’s decision. See section 755 (3).

497Listing proceeding for mention

(1)The registrar of the relevant court must arrange for the proceeding for the relevant offence to be listed for mention—
(a)within 7 days after being notified of the tribunal’s decision; or
(b)if the court can not be constituted within the period mentioned in paragraph (a)—at the earliest opportunity after the end of that period.
(2)On the person’s appearance at the mention of the proceeding, the forensic order or treatment support order to which the person is subject ends.
(3)An authorised person may transport the person from the authorised mental health service in which the person is being detained to the relevant court for the person’s appearance at the mention of the proceeding.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.
(4)However, subsection (3) does not prevent the person appearing at the mention of the proceeding by remote conferencing while remaining at the authorised mental health service.
(5)The person may be detained at the authorised mental health service until—
(a)the person leaves the service to appear at the mention of the proceeding; or
(b)if the person appears at the mention of the proceeding by remote conferencing while remaining at the service—the person is taken into custody.
(6)In this section—
mention includes review.

Part 7 Review of detention of minors in high security units

498Application of pt 7

This part applies if the chief psychiatrist approves—
(a)under section 70 , that the administrator of a high security unit may give consent for a minor to be transported to the high security unit for assessment, treatment and care; or
(b)under section 351, the transfer of responsibility for a minor to a high security unit.

Note—

The administrator of the high security unit must give the tribunal written notice of the minor’s admission, or transfer, to the high security unit. See sections 77 and 358.

499When reviews are conducted

(1)The tribunal must review the minor’s detention in the high security unit—
(a)within 7 days after the tribunal is notified of the chief psychiatrist’s approval; and
(b)at intervals of not more than 3 months after the review under paragraph (a) is completed.
(2)Also, the tribunal must review the minor’s detention in the high security unit on application by—
(a)the minor; or
(b)an interested person for the minor.
(3)Further, the tribunal may at any time, on its own initiative, review the minor’s detention in the high security unit.

500Notice of hearing

(1)The tribunal must give each of the following persons written notice of the hearing of a review of the minor’s detention in the high security unit—
(a)the minor;
(b)for a review under section 499(2), if the minor is not the applicant—the applicant;
(c)the administrator of the high security unit;
(d)the chief psychiatrist.

Note—

See section 287 (5) for when the notice may be given to the minor’s parent as well as, or instead of, the minor.
(2)The notice must be given at least 7 days before the hearing.
(3)However, subsection (2) does not apply for the first review of the minor’s detention.

501Decision on review

(1)On a review of the minor’s detention in the high security unit, the tribunal must decide whether—
(a)the minor should continue to be detained in the high security unit; or
(b)responsibility for the minor should be transferred from the high security unit to an authorised mental health service that is not a high security unit.
(2)In deciding the review, the tribunal must have regard to the following—
(a)the minor’s mental state and psychiatric history;
(b)the minor’s treatment and care needs;
(c)the minor’s security requirements.

Part 8 Applications for examination authorities

502Application for examination authority

(1)The following persons may apply to the tribunal for an authority (an examination authority) for another person—
(a)the administrator of an authorised mental health service;
(b)a person authorised in writing by the administrator of an authorised mental health service to make an application under this section;
(c)a person who has received advice, from a doctor or authorised mental health practitioner, about the clinical matters for the person who is the subject of the application.

Note—

See section 32 for the powers of a doctor or authorised mental health practitioner under an examination authority.
(2)The approved form for the application must include a statement by a doctor or authorised mental health practitioner about whether the behaviour of the person, or other relevant factors, could reasonably be considered to satisfy the requirements under section 504(2) for making an examination authority for the person.

Note—

The application must be made in the approved form. See section 725 .
(3)In this section—
clinical matters, for a person, means—
(a)general information about the treatment criteria, their application to the person, and whether there is a less restrictive way for the person to receive treatment and care for the person’s mental illness; and
(b)whether the behaviour of the person, or other relevant factors, could reasonably be considered to satisfy the requirements under section 504(2) for making an examination authority for the person; and
(c)options for the treatment and care of the person; and
(d)how the person might be encouraged to have a voluntary examination relating to the person’s mental illness.

s 502 amd 2017 No. 3s 39

503Notice of hearing

(1)The tribunal must give the applicant written notice of the hearing of the application.
(2)The notice must be given—
(a)at least 3 days before the hearing; or
(b)if the applicant agrees to a shorter period before the hearing—at least the agreed period before the hearing.

504Decision on application

(1)In deciding the application, the tribunal must issue, or refuse to issue, an examination authority for the person.
(2)However, the tribunal may issue an examination authority for the person only if the tribunal considers—
(a)the person has, or may have, a mental illness; and
(b)the person does not, or may not, have capacity to consent to be treated for the mental illness; and
(c)either—
(i)reasonable attempts have been made to encourage the person to have a voluntary examination relating to the person’s mental illness; or
(ii)it is not practicable to attempt to encourage the person to have a voluntary examination relating to the person’s mental illness; and
(d)there is, or may be, an imminent risk, because of the person’s mental illness, of—
(i)serious harm to the person or someone else; or
(ii)the person suffering serious mental or physical deterioration.
(3)An examination authority must—
(a)be in the approved form; and
(b)state the authorised mental health service responsible for the examination of the person under the authority.

s 504 amd 2017 No. 3s 40

505Duration of examination authority

An examination authority is in force for 7 days after the day it is issued.

506Copy of examination authority to be given to administrator of authorised mental health service

The tribunal must give a copy of an examination authority to the administrator of the authorised mental health service stated in the authority.

Part 9 Applications for approval of regulated treatment

Division 1 Electroconvulsive therapy

507Who may apply

A doctor may apply to the tribunal for approval to perform electroconvulsive therapy on another person if the doctor is satisfied—
(a)the person is an adult and is unable to give informed consent to the therapy; or
(b)the person is a minor.

508Notice of hearing

(1)The tribunal must give the following persons written notice of the hearing of the application—
(a)the person the subject of the application;
(b)the applicant;
(c)the administrator of the authorised mental health service identified in the application as the service in which the electroconvulsive therapy is to be performed.
(2)The notice must be given—
(a)if a certificate under section 237 (3) is in force for the person—
(i)at least 3 days before the hearing; or
(ii)if the person, or an interested person for the person, agrees to a shorter period before the hearing—at least the agreed period before the hearing; or
(b)otherwise—
(i)at least 7 days before the hearing; or
(ii)if the person, or an interested person for the person, agrees to a shorter period before the hearing—at least the agreed period before the hearing.

509Decision on application

(1)In deciding the application, the tribunal must give, or refuse to give, approval for electroconvulsive therapy to be performed on the person.
(2)In deciding whether to give, or refuse to give, the approval, the tribunal must have regard to—
(a)if the application relates to an adult who is unable to give informed consent to the therapy—any views, wishes and preferences the adult has expressed about the therapy in an advance health directive; or
(b)if the application relates to a minor—
(i)the views of the minor’s parents; and
(ii)the views, wishes and preferences of the minor.
(3)The tribunal may give the approval only if the tribunal is satisfied—
(a)the performance of the therapy on the person is in the person’s best interests; and
(b)evidence supports the effectiveness of the therapy for the person’s particular mental illness; and
(c)if the therapy has previously been performed on the person—of the effectiveness of the therapy for the person; and
(d)if the person is a minor—evidence supports the effectiveness of the therapy for persons of the minor’s age.
(4)If the tribunal gives the approval, the approval—
(a)must state the number of treatments that may be performed in a stated period under the approval; and
(b)may be made subject to the conditions the tribunal considers appropriate.

Division 2 Non-ablative neurosurgical procedures

510Who may apply

(1)A doctor may apply to the tribunal for approval to perform a non-ablative neurosurgical procedure on another person if the doctor is satisfied the person has given informed consent to the treatment under chapter 7 , part 10 .
(2)The application must be accompanied by a copy of the person’s consent.

511Notice of hearing

(1)The tribunal must give the following persons written notice of the hearing of the application—
(a)the person the subject of the application;
(b)the applicant;
(c)the administrator of the authorised mental health service identified in the application as the service in which the non-ablative neurosurgical procedure is to be performed.
(2)The notice must be given at least 7 days before the hearing.

512Decision on application

(1)In deciding the application, the tribunal must give, or refuse to give, approval for the non-ablative neurosurgical procedure to be performed on the person.
(2)The tribunal may give the approval only if the tribunal is satisfied—
(a)the applicant has given the person the explanation required under section 234 ; and
(b)the person has given informed consent to the procedure under chapter 7 , part 10 ; and
(c)the procedure has clinical merit and is appropriate in the circumstances; and
(d)alternatives to the procedure that could reasonably be expected to produce a sufficient and lasting benefit for the person have previously been provided to the person without a sufficient and lasting benefit; and
(e)the procedure is to be performed by an appropriately qualified person.
(3)The tribunal may give the approval subject to the conditions the tribunal considers appropriate.

Part 10 Applications for approval to transfer particular persons into and out of Queensland

Division 1 Transfers into Queensland

513Definitions for div 1

In this division—
interstate forensic order means an order made under a corresponding law of another State, however described, that provides for similar matters to a forensic order (mental health) or forensic order (disability).
interstate transfer requirements, for a person subject to an interstate forensic order, means the requirements, under the corresponding law of the State in which the order was made, for the person’s transfer to another State.

514Who may apply

A person subject to an interstate forensic order, or an interested person for the person, may apply to the tribunal for approval of the transfer of the person from an interstate mental health service to—
(a)a stated authorised mental health service; or
(b)the forensic disability service.

515Requirements for application

(1)The application must—
(a)state the reasons why the transfer would be in the best interests of the person, including, for example, closer proximity to the person’s family, carers and other support persons; and
(b)state—
(i)the authorised mental health service proposed to be responsible for the person; or
(ii)that the forensic disability service is proposed to be responsible for the person; and
(c)include a written statement from the relevant person that the relevant person considers the interstate transfer requirements for the person may be satisfied.
(2)In this section—
relevant person means—
(a)if an authorised mental health service is proposed to be responsible for the person—the chief psychiatrist; or
(b)if the forensic disability service is proposed to be responsible for the person—the director of forensic disability.

516Notice of hearing

(1)The tribunal must give each of the following persons written notice of the hearing of the application—
(a)the person;
(b)if the person is not the applicant—the applicant;
(c)if an authorised mental health service is stated in the application—
(i)the administrator of the service; and
(ii)the chief psychiatrist;
(d)if the forensic disability service is stated in the application—
(i)the administrator of the service; and
(ii)the director of forensic disability;
(e)the Attorney-General.
(2)The notice must be given at least 14 days before the hearing.

517Decision on application

(1)In deciding the application, the tribunal must approve, or refuse to approve, the transfer.
(2)The tribunal may approve the transfer only if satisfied—
(a)the transfer is in the best interests of the person, including, for example, closer proximity to the person’s family, carers and other support persons; and
(b)either—
(i)if an authorised mental health service is stated in the application—appropriate treatment and care is available for the person at the service; or
(ii)if the forensic disability service is stated in the application—appropriate care is available for the person at the forensic disability service; and
(c)a forensic order (mental health) or forensic order (disability) is necessary, because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property.
(3)The tribunal may give the approval subject to the conditions the tribunal considers appropriate.

518Making of forensic order

(1)If the tribunal approves the transfer under section 517, the tribunal must make a forensic order (mental health) for the person unless subsection (2) applies.
(2)The tribunal must make a forensic order (disability) for the person if the tribunal considers—
(a)the person has an intellectual disability but does not have a dual disability; or
(b)the person has a dual disability but does not require involuntary treatment and care for the person’s mental illness.
(3)The forensic order (mental health) or forensic order (disability) takes effect when the person arrives in Queensland.
(4)For making a forensic order (mental health) or forensic order (disability) under this division, section 135 and chapter 5 , part 4 , division 2, subdivision 2 apply as if—
(a)a reference in the provisions to the Mental Health Court were a reference to the tribunal; and
(b)a reference in the provisions to the person the subject of the reference were a reference to the person subject to the interstate forensic order.

519When approval takes effect

An approval of a transfer under this division takes effect when the interstate transfer requirements for the person have been satisfied.

520Transport of person

(1)This section applies if—
(a)the tribunal has approved the transfer of a person under this division; and
(b)the interstate transfer requirements for the person have been satisfied.
(2)As soon as practicable after the interstate transfer requirements have been satisfied, the administrator of the authorised mental health service, or of the forensic disability service, must arrange for the person to be transported to the service by 1 of the following persons (each a transport officer)—
(a)an authorised person;

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.
(b)if the person is to be transported to the forensic disability service—an authorised practitioner under the Forensic Disability Act;
(c)a person who is authorised under a corresponding law to transport the person from the interstate mental health service to the authorised mental health service or the forensic disability service.
(3)A transport officer may transport the person to the authorised mental health service or the forensic disability service under the tribunal’s approval.

Division 2 Transfers out of Queensland

521Definition for div 2

In this division—
interstate transfer requirements, for a person subject to a forensic order (mental health), forensic order (disability) or treatment support order, means the requirements, under the corresponding law of another State, for the person’s transfer to the other State.

522Who may apply

(1)A person subject to a forensic order (mental health), forensic order (disability) or treatment support order, or an interested person for the person, may apply to the tribunal for approval of the transfer of the person from an authorised mental health service or the forensic disability service to a stated interstate mental health service.
(2)However, this section does not apply to—
(a)a person who is a classified patient; or
(b)a person charged with an offence if—
(i)a finding of unfitness has been made in relation to the person; and
(ii)the person has not been found fit for trial; and
(iii)the proceeding against the person for the offence has not been discontinued under this Act or otherwise.

s 522 amd 2017 No. 3s 41

523Requirements for application

(1)The application must—
(a)state the reasons why the transfer would be in the best interests of the person, including, for example, closer proximity to the person’s family, carers and other support persons; and
(b)include a written statement from the relevant person that the relevant person considers the interstate transfer requirements for the person may be satisfied.
(2)In this section—
relevant person means—
(a)if an authorised mental health service is responsible for the person—the chief psychiatrist; or
(b)if the forensic disability service is responsible for the person—the director of forensic disability.

524Notice of hearing

(1)The tribunal must give each of the following persons written notice of the hearing of the application—
(a)the person;
(b)if the person is not the applicant—the applicant;
(c)if an authorised mental health service is responsible for the person—
(i)the administrator of the service; and
(ii)the chief psychiatrist;
(d)if the forensic disability service is responsible for the person—
(i)the administrator of the service; and
(ii)the director of forensic disability;
(e)the Attorney-General.
(2)The notice must be given at least 14 days before the hearing.

525Decision on application

(1)In deciding the application, the tribunal must approve, or refuse to approve, the transfer.
(2)The tribunal may approve the transfer only if satisfied—
(a)the transfer is in the best interests of the person, including, for example, closer proximity to the person’s family, carers and other support persons; and
(b)appropriate treatment and care is available for the person at the interstate mental health service; and
(c)the arrangements are adequate to protect the safety of the community.
(3)The tribunal may give the approval subject to the conditions the tribunal considers appropriate.

526When approval takes effect

An approval of a transfer under this division takes effect when the interstate transfer requirements for the person have been satisfied.

527Transport of person

(1)This section applies if—
(a)the tribunal has approved the transfer of a person under this division; and
(b)the interstate transfer requirements for the person have been satisfied.
(2)As soon as practicable after the interstate transfer requirements have been satisfied, the administrator of the authorised mental health service, or of the forensic disability service, must arrange for the person to be transported to the interstate mental health service by 1 of the following persons (each a transport officer)—
(a)an authorised person;

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.
(b)if the person is to be transported from the forensic disability service—an authorised practitioner under the Forensic Disability Act;
(c)a person who is authorised under a corresponding law to transport the person from the authorised mental health service or the forensic disability service to the interstate mental health service.
(3)A transport officer may transport the person to the interstate mental health service under the tribunal’s approval.

528Effect on order

(1)This section applies to a forensic order (mental health), forensic order (disability) or treatment support order to which a person is subject when the person is transferred to an interstate mental health service under this division.
(2)The order has effect only if the person returns to Queensland and while the person is in Queensland.
(3)Also, the order ends—
(a)on the last day of any non-revocation period for the order if, on that day, the person has been out of Queensland for a continuous period of 3 years; or
(b)if paragraph (a) does not apply—if the person is out of Queensland for a continuous period of 3 years.
(4)In this section—
out of Queensland, in relation to a person, means out of Queensland because of the person’s transfer under this division to an interstate mental health service.

Part 11 Miscellaneous

529Relationship with ch 16, pt 2

To the extent of any inconsistency with chapter 16, part 2, this chapter prevails.

530Use of victim impact statement by tribunal

(1)This section applies if the tribunal is required to have regard to a victim impact statement in deciding a matter under this chapter.
(2)The tribunal may place the weight on the victim impact statement that it considers appropriate.

Chapter 13 Appeals

Part 1 Preliminary

531Purpose of ch 13

This chapter provides for the following—
(a)appeals to the tribunal;
(b)appeals to the Mental Health Court against a decision of the tribunal;
(c)appeals to the Court of Appeal against a decision of the Mental Health Court.

Part 2 Appeals to tribunal

532Definitions for pt 2

In this part—
decision notice means a notice about a decision given under section 314(4), 315(3), 319(7), 321(7), 322(3), 323(4) or 408(3).

Note—

A decision to which a notice under section 319 (7), 321(7), 322(3) or 323(4) relates may be made in relation to a forensic disability client. See section 327 .
party, to an appeal, means—
(a)for an appeal against a decision of the administrator of an authorised mental health service—the appellant or the administrator; or
(b)for an appeal against a decision of the chief psychiatrist—the appellant or the chief psychiatrist; or
(c)for an appeal against a decision of the director of forensic disability—the appellant or the director.

533Appeal to tribunal

A person who has been given, or is entitled to be given, a decision notice may appeal to the tribunal against the decision to which the notice relates.

534How to start appeal

(1)The appeal is started by giving the tribunal a notice of appeal.
(2)The notice of appeal must be given within 28 days after—
(a)the day the person is given the decision notice; or
(b)if the person is not given a decision notice—the day the person otherwise becomes aware of the decision.
(3)The tribunal may, at any time, extend the time for giving the notice of appeal.
(4)The notice of appeal must—
(a)be in the approved form; and
(b)state fully the grounds of the appeal and the facts relied on.

534A Frivolous or vexatious appeal

(1)The tribunal may dismiss the appeal if the tribunal is satisfied the appeal is frivolous or vexatious.
(2)The tribunal may dismiss an appeal under this section without a hearing.

s 534A ins 2017 No. 3s 42

535Notice of appeal and hearing

(1)The tribunal must give the parties to the appeal written notice of the hearing of the appeal.
(2)The notice must be given—
(a)for an appeal against a decision for which a decision notice must be given under section 314(4) or 315(3)—
(i)at least 3 days before the hearing; or
(ii)if the appellant agrees to a shorter period before the hearing—at least the agreed period before the hearing; or
(b)for an appeal against another decision—at least 7 days before the hearing.
(3)The notice must state the following—
(a)the time and place of the hearing of the appeal;
(b)the nature of the hearing;
(c)the parties’ rights to be represented at the hearing.

536Stay of decision pending appeal

(1)The tribunal may stay the decision appealed against to secure the effectiveness of the appeal.
(2)A stay—
(a)may be given on the reasonable conditions the tribunal considers appropriate; and
(b)operates for the period fixed by the tribunal; and
(c)may be amended or revoked by the tribunal.
(3)The period of a stay must not extend past the time when the appeal is decided.
(4)A notice of appeal affects the decision the subject of the notice, or the carrying out of the decision, only if the decision is stayed.

537Appeal powers

(1)The procedure for the appeal is in accordance with the tribunal rules or, if the rules make no provision or insufficient provision, as directed by the tribunal.
(2)The appeal is by way of rehearing.
(3)In deciding the appeal, the tribunal may—
(a)confirm the decision appealed against; or
(b)set aside the decision appealed against and substitute another decision; or
(c)set aside the decision appealed against and return the matter to the person who made the decision with the directions the tribunal considers appropriate.
(4)If the tribunal substitutes another decision, the substituted decision is for this Act, other than this chapter, taken to be the decision of the person who made the decision appealed against.

Part 3 Appeals to Mental Health Court

Division 1 Preliminary

538Definition for pt 3

In this part—
party, to an appeal against a decision, means a person who is a party to the appeal under section 540.

Division 2 Making and hearing appeals

539Who may appeal

A person mentioned in schedule 2 , column 2 may appeal to the Mental Health Court against a decision of the tribunal mentioned opposite the person in schedule 2 , column 1.

540Parties to appeal

(1)Each person entitled to appeal against the decision is a party to the appeal.
(2)However, if the person is entitled to appeal against the decision only because the person is an interested person for a person who is the subject of the decision, the person is not a party to the appeal.
(3)If subsection (2) applies, the person who is the subject of the decision is taken to be a party to the appeal.
(4)Also, unless the chief psychiatrist is the appellant, the chief psychiatrist is a party to the appeal only if the chief psychiatrist elects to be a party to the appeal.
(5)Further, unless the director of forensic disability is the appellant, the director of forensic disability is a party to the appeal only if the director of forensic disability elects to be a party to the appeal.

541How to start appeal

(1)The appeal is started by filing a notice of appeal in the registry.
(2)The notice of appeal must be filed—
(a)if the chief psychiatrist is the appellant—within 60 days after the decision is made; or
(b)if paragraph (a) does not apply—within 60 days after the appellant receives written notice of the decision.
(3)The Mental Health Court may, at any time, extend the time for filing the notice of appeal.
(4)The notice of appeal must—
(a)be in the approved form; and
(b)state fully the grounds of the appeal and the facts relied on.

542Frivolous or vexatious appeal

(1)The Mental Health Court may dismiss the appeal if the court is satisfied the appeal is frivolous or vexatious.
(2)The court may dismiss an appeal under this section without a hearing.

543Notice of appeal and hearing

(1)Within 7 days after the notice of appeal is filed, the registrar must give written notice of the appeal to each other person entitled to appeal against the decision, other than an interested person for the person the subject of the decision.
(2)The registrar must also give at least 7 days written notice of the hearing of the appeal to—
(a)the parties to the appeal; and
(b)if an authorised mental health service is responsible for the person the subject of the appeal—the administrator of the service; and
(c)if the forensic disability service is responsible for the person the subject of the appeal—the administrator of the service.
(3)The notice of the hearing of the appeal must state the following—
(a)the time and place of the hearing of the appeal;
(b)the nature of the hearing;
(c)the parties’ rights to be represented at the hearing.

544Stay of decision pending appeal

(1)The Mental Health Court may stay the decision appealed against to secure the effectiveness of the appeal.
(2)A stay—
(a)may be given on the conditions the court considers appropriate; and
(b)operates for the period fixed by the court; and
(c)may be amended or revoked by the court.
(3)The period of a stay must not extend past the time when the appeal is decided.
(4)The court may order that the person the subject of the appeal be detained in a stated authorised mental health service for the period of the stay.

Note—

An order made under subsection (4) is a type of judicial order. A judicial order does not authorise the provision of involuntary treatment and care to the person.
(5)For subsection (4), an authorised person may transport the person to an inpatient unit of the authorised mental health service stated in the order.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.
(6)The administrator of the authorised mental health service stated in the order may detain the person in the service under the order.

545Notice of stay of decision on review of person’s fitness for trial

(1)This section applies if—
(a)the decision appealed against is a decision of the tribunal on a review of a person’s fitness for trial; and
(b)under section 544, the Mental Health Court stays the decision.
(2)The registrar must give the chief executive (justice) written notice of the stay of the decision.
(3)As soon as practicable after receiving a notice under subsection (2), the chief executive (justice) must give a copy of the notice to—
(a)the registrar of the court in which the proceeding for the offence in relation to the review of the fitness for trial of the person is to be heard; and
(b)the prosecuting authority for the offence; and
(c)if the person the subject of the decision is a minor—the chief executive (youth justice).

s 545 amd 2016 No. 58s 10sch 1

546Appeal powers

(1)The procedure for the appeal is in accordance with court rules for the Mental Health Court or, if the rules make no provision or insufficient provision, as directed by the Mental Health Court.
(2)The appeal is by way of rehearing.
(3)In deciding the appeal, the Mental Health Court may—
(a)confirm the decision appealed against; or
(b)set aside the decision appealed against and substitute another decision; or
(c)set aside the decision appealed against and return the matter to the tribunal with the directions the Mental Health Court considers appropriate.
(4)If the Mental Health Court substitutes another decision, the substituted decision is taken for this Act, other than this chapter, to be a decision of the tribunal.

547Mental Health Court may make forensic order or treatment support order

(1)This section applies if—
(a)the decision appealed against is a decision of the tribunal that a person is fit for trial; and

Note—

The tribunal may decide a person is fit for trial on a review under chapter 12 , part 6 .
(b)the forensic order or treatment support order to which the person was subject has ended under section 497(2); and
(c)the Mental Health Court decides on the appeal that the person is unfit for trial.
(2)The Mental Health Court may make the orders the court may make under chapter 5 , part 4 as if a reference in the part to a reference in relation to a person were a reference to an appeal against a decision of the tribunal that a person is fit for trial.

548Mental Health Court’s decision final

(1)Unless the Supreme Court decides the Mental Health Court’s decision on the appeal is affected by jurisdictional error, the decision—
(a)is final and conclusive; and
(b)can not be challenged, appealed against, reviewed, quashed, set aside or called in question in any other way under the Judicial Review Act 1991 or otherwise (whether by the Supreme Court, another court, a tribunal or another entity); and
(c)is not subject to any declaratory, injunctive or other order of the Supreme Court, another court, a tribunal or another entity on any ground.
(2)The Judicial Review Act 1991 , part 5 applies to the Mental Health Court’s decision to the extent it is affected by jurisdictional error.

Part 4 Appeals to Court of Appeal

549Who may appeal

The following persons may appeal to the Court of Appeal against a decision of the Mental Health Court on a reference in relation to a person—
(a)the person;
(b)the Attorney-General;
(c)the chief psychiatrist;
(d)the director of forensic disability.

550How to start appeal

(1)An appeal is started by filing a notice of appeal with the registrar of the Court of Appeal.
(2)The notice of appeal must be filed within 28 days after the appellant receives notice of the decision or otherwise becomes aware of the decision.
(3)However, the Court of Appeal may at any time extend the period for filing the notice of appeal.
(4)The notice of appeal must—
(a)be in the approved form; and
(b)state fully the grounds of the appeal and the facts relied on.

551Appeal powers

(1)The procedure for the appeal is to be in accordance with court rules for the Court of Appeal or, if the rules make no provision or insufficient provision, as directed by the Court of Appeal.
(2)In deciding the appeal, the Court of Appeal may—
(a)confirm the decision appealed against; or
(b)set aside the decision appealed against and substitute another decision; or
(c)set aside the decision appealed against and return the matter to the Mental Health Court with the directions the Court of Appeal considers appropriate.
(3)If the Court of Appeal substitutes another decision, the substituted decision is taken for this Act, other than this chapter, to be the decision of the Mental Health Court.
(4)If the Court of Appeal returns the matter to the Mental Health Court, the Court of Appeal must order that—
(a)either—
(i)the person be remanded in custody and any bail granted under the Bail Act 1980 for the person be revoked; or
(ii)bail be granted, enlarged or varied under the Bail Act 1980 for the person; or
(b)the person be detained in a stated authorised mental health service.

Note—

An order made under paragraph (b) is a type of judicial order. A judicial order does not authorise the provision of involuntary treatment and care to the person.
(5)For subsection (4)(b), an authorised person may transport the person to an inpatient unit of the authorised mental health service stated in the order.

Note—

For the powers of an authorised person when detaining and transporting a person, see chapter 11 , part 6 , division 5.
(6)The person the subject of the reference may be detained under the court’s order in an inpatient unit of the authorised mental health service stated in the order.

552Notice of decision

The registrar of the Court of Appeal must give a copy of the decision on the appeal to the registrar of the Mental Health Court.

Chapter 14 Monitoring and enforcement

Part 1 Preliminary

553Purpose of ch 14

This purpose of this chapter is to provide for—
(a)the appointment of inspectors; and
(b)the functions and powers of inspectors in relation to—
(i)investigating, monitoring and enforcing compliance with this Act; and
(ii)investigating a matter under chapter 10, part 4.

554Definitions for ch 14

In this chapter—

court means a Magistrates Court.

electronic document means a document of a type under the Acts Interpretation Act 1954 , schedule 1 , definition document, paragraph (c).

former owner see section 590(1).

general power see section 577(1).

help requirement see section 578(1).

identity card, for an inspector, means an identity card issued under section 560(1).

information notice, about a decision, means a notice stating the following—

(a)the decision;
(b)the reasons for it;
(c)that the person to whom the notice is given may apply to the chief psychiatrist for a review of the decision within 28 days after the person receives the notice;
(d)how to apply for a review.

information requirement see section 597(3).

inspector means a person who holds office under this chapter as an inspector.

offence warning, for a help requirement or personal details requirement, means a warning that, without a reasonable excuse, it is an offence for the person to whom the requirement is made not to comply with it.

owner, of a thing that has been seized under this chapter, includes a person who would be entitled to possession of the thing had it not been seized.

personal details requirement see section 595(5).

person in control, of a thing, includes anyone who reasonably appears to be, claims to be, or acts as if he or she is, the person in possession or control of the thing.

reasonably suspects means suspects on grounds that are reasonable in the circumstances.

Part 2 General provisions about inspectors

Division 1 Appointment

555Appointment and qualifications

(1)The chief psychiatrist may, by instrument in writing, appoint any of the following persons as inspectors—
(a)a public service employee of the department;
(b)a health service employee;
(c)other persons prescribed by regulation.
(2)Also, the chief psychiatrist may, by instrument in writing, appoint a health practitioner, lawyer or another person as an inspector for investigating a matter under chapter 10, part 4.
(3)However, the chief psychiatrist may appoint a person as an inspector under subsection (1) or (2) only if the chief psychiatrist is satisfied the person is appropriately qualified.
(4)Also, the chief psychiatrist is an inspector.

556Functions of inspectors

An inspector’s functions are as follows—
(a)for an inspector appointed under section 555(1)—to investigate, monitor and enforce compliance with this Act;
(b)for an inspector appointed under section 555(1) or (2)—to investigate a matter under chapter 10, part 4;
(c)for the chief psychiatrist—each of the functions mentioned in paragraphs (a) and (b).

557Appointment conditions and limit on powers

(1)An inspector holds office on any conditions stated in—
(a)the inspector’s instrument of appointment; or
(b)a signed notice given to the inspector; or
(c)a regulation.
(2)The instrument of appointment, a signed notice given to the inspector or a regulation may limit the inspector’s powers.
(3)In this section—
signed notice means a notice signed by the chief psychiatrist.

558When office ends

(1)The office of a person as an inspector ends if any of the following happens—
(a)the term of office stated in a condition of office ends;
(b)under another condition of office, the office ends;
(c)the inspector’s resignation under section 559 takes effect.
(2)Subsection (1) does not limit the ways the office of a person as an inspector ends.
(3)In this section—
condition of office means a condition under which the inspector holds office.

559Resignation

An inspector may resign by signed notice given to the chief psychiatrist.

Division 2 Identity cards

560Issue of identity card

(1)The chief psychiatrist must issue an identity card to each inspector.
(2)The identity card must—
(a)contain a recent photo of the inspector; and
(b)contain a copy of the inspector’s signature; and
(c)identify the person as an inspector under this Act; and
(d)state an expiry date for the card.
(3)This section does not prevent the issue of a single identity card to a person for this Act and other purposes.

561Production or display of identity card

(1)In exercising a power in relation to a person in the person’s presence, an inspector must—
(a)produce the inspector’s identity card for the person’s inspection before exercising the power; or
(b)have the identity card displayed so it is clearly visible to the person when exercising the power.
(2)However, if it is not practicable to comply with subsection (1), the inspector must produce the identity card for the person’s inspection at the first reasonable opportunity.
(3)For subsection (1), an inspector does not exercise a power in relation to a person only because the inspector has entered a place as mentioned in section 565(1)(b) or (d).

562Return of identity card

If the office of a person as an inspector ends, the person must return the person’s identity card to the chief psychiatrist within 21 days after the office ends unless the person has a reasonable excuse.

Maximum penalty—20 penalty units.

Division 3 Miscellaneous provisions

563References to exercise of powers

If—
(a)a provision of this chapter refers to the exercise of a power by an inspector; and
(b)there is no reference to a specific power;
the reference is to the exercise of all or any inspectors’ powers under this chapter or a warrant, to the extent the powers are relevant.

564Reference to document includes reference to reproductions from electronic document

A reference in this chapter to a document includes a reference to an image or writing—
(a)produced from an electronic document; or
(b)not yet produced, but reasonably capable of being produced, from an electronic document, with or without the aid of another article or device.

Part 3 Entry of places by inspectors

Division 1 Power to enter

565General powers to enter places

(1)An inspector may enter a place if—
(a)an occupier of the place consents under division 2 to the entry and section 568 has been complied with for the occupier; or
(b)it is a public place and the entry is made when the place is open to the public; or
(c)the entry is authorised under a warrant and, if there is an occupier of the place, section 575 has been complied with for the occupier; or
(d)it is an authorised mental health service or public sector health service facility and is—
(i)open to the public; or
(ii)otherwise open for entry.
(2)If the power to enter arose only because an occupier of the place consented to the entry, the power is subject to any conditions of the consent and ceases if the consent is withdrawn.
(3)If the power to enter is under a warrant, the power is subject to the terms of the warrant.

Division 2 Entry by consent

566Application of div 2

This division applies if an inspector intends to ask an occupier of a place to consent to the inspector or another inspector entering the place under section 565(1)(a).

567Incidental entry to ask for access

For the purpose of asking the occupier for the consent, an inspector may, without the occupier’s consent or a warrant—
(a)enter land around premises at the place to an extent that is reasonable to contact the occupier; or
(b)enter part of the place the inspector reasonably considers members of the public ordinarily are allowed to enter when they wish to contact an occupier of the place.

568Matters inspector must tell occupier

Before asking for the consent, the inspector must give a reasonable explanation to the occupier—
(a)about the purpose of the entry, including the powers intended to be exercised; and
(b)that the occupier is not required to consent; and
(c)that the consent may be given subject to conditions and may be withdrawn at any time.

569Consent acknowledgement

(1)If the consent is given, the inspector may ask the occupier to sign an acknowledgement of the consent.
(2)The acknowledgement must state—
(a)the purpose of the entry, including the powers to be exercised; and
(b)the following has been explained to the occupier—
(i)the purpose of the entry, including the powers intended to be exercised;
(ii)that the occupier is not required to consent;
(iii)that the consent may be given subject to conditions and may be withdrawn at any time; and
(c)the occupier gives the inspector or another inspector consent to enter the place and exercise the powers; and
(d)the time and day the consent was given; and
(e)any conditions of the consent.
(3)If the occupier signs the acknowledgement, the inspector must immediately give a copy to the occupier.
(4)If—
(a)an issue arises in a proceeding about whether the occupier consented to the entry; and
(b)a signed acknowledgement complying with subsection (2) for the entry is not produced in evidence;
      the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented.

Division 3 Entry under warrant

Subdivision 1 Obtaining warrant

570Application for warrant

(1)An inspector may apply to a magistrate for a warrant for a place.
(2)The inspector must prepare a written application that states the grounds on which the warrant is sought.
(3)The written application must be sworn.
(4)The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the written application to be given by statutory declaration.

571Issue of warrant

(1)The magistrate may issue the warrant for the place only if the magistrate is satisfied there are reasonable grounds for suspecting that there is at the place, or will be at the place within the next 7 days, a particular thing or activity that may provide evidence—
(a)about a matter being investigated by the inspector under chapter 10, part 4; or
(b)of an offence against this Act.
(2)The warrant must state—
(a)the place to which the warrant applies; and
(b)that a stated inspector or any inspector may with necessary and reasonable help and force—
(i)enter the place and any other place necessary for entry to the place; and
(ii)exercise the inspector’s powers; and
(c)particulars of the matter being investigated, or offence, that the magistrate considers appropriate; and
(d)the name of the person involved in the matter being investigated, or suspected of having committed the offence, unless the name is unknown or the magistrate considers it inappropriate to state the name; and
(e)the evidence that may be seized under the warrant; and
(f)the hours of the day or night when the place may be entered; and
(g)the magistrate’s name; and
(h)the day and time of the warrant’s issue; and
(i)the day, within 14 days after the warrant’s issue, the warrant ends.

572Electronic application

(1)An application under section 570 may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the inspector reasonably considers it necessary because of—
(a)urgent circumstances; or
(b)other special circumstances, including, for example, the inspector’s remote location.
(2)The application—
(a)may not be made before the inspector prepares the written application under section 570(2); but
(b)may be made before the written application is sworn.

573Additional procedure if electronic application

(1)For an application made under section 572, the magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied—
(a)it was necessary to make the application under section 572; and
(b)the way the application was made under section 572 was appropriate.
(2)After the magistrate issues the original warrant—
(a)if there is a reasonably practicable way of immediately giving a copy of the warrant to the inspector, including, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the inspector; or
(b)otherwise—
(i)the magistrate must tell the inspector the information mentioned in section 571(2); and
(ii)the inspector must complete a form of warrant, including by writing on it the information mentioned in section 571(2) provided by the magistrate.
(3)The copy of the warrant mentioned in subsection (2)(a), or the form of warrant completed under subsection (2)(b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant.
(4)The inspector must, at the first reasonable opportunity, send to the magistrate—
(a)the written application complying with section 570(2) and (3); and
(b)if the inspector completed a form of warrant under subsection (2)(b), the completed form of warrant.
(5)The magistrate must keep the original warrant and, on receiving the documents under subsection (4)—
(a)attach the documents to the original warrant; and
(b)give the original warrant and documents to the clerk of the court of the relevant magistrates court.
(6)Despite subsection (3), if—
(a)an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and
(b)the original warrant is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.

(7)In this section—
relevant magistrates court, in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991 .

574Defect in relation to a warrant

(1)A warrant is not invalidated by a defect in—
(a)the warrant; or
(b)compliance with this subdivision;

unless the defect affects the substance of the warrant in a material particular.

(2)In this section—
warrant includes a duplicate warrant mentioned in section 573(3).

Subdivision 2 Entry procedure

575Entry procedure

(1)This section applies if an inspector is intending to enter a place under a warrant issued under subdivision 1.
(2)Before entering the place, the inspector must do or make a reasonable attempt to do the following things—
(a)identify himself or herself to a person who is an occupier of the place and is present by producing the inspector’s identity card or another document evidencing the inspector’s appointment;
(b)give the person a copy of the warrant;
(c)tell the person the inspector is permitted by the warrant to enter the place;
(d)give the person an opportunity to allow the inspector immediate entry to the place without using force.
(3)However, the inspector need not comply with subsection (2) if the inspector believes on reasonable grounds that entry to the place without compliance is required to ensure the execution of the warrant is not frustrated.
(4)In this section—
warrant includes a duplicate warrant mentioned in section 573(3).

Part 4 General powers of inspectors after entering places

576Application of pt 4

(1)The powers under this part may be exercised if an inspector enters a place under section 565(1)(a), (c) or (d).
(2)However, if the inspector enters the place under section 565(1)(a) or (c), the powers under this part are subject to any conditions of the consent or terms of the warrant.

577General powers

(1)The inspector may do any of the following (each a general power)—
(a)search any part of the place;
(b)confer alone with a patient in the place;
(c)make inquiries about the admission, assessment, examination, detention, or treatment and care, of a patient in the place;
(d)inspect, examine or film any part of the place or anything at the place, including, for example—
(i)inspect any document (including a health record) about a patient who—
(A)has been, or is being, assessed or examined in the place; or
(B)has received, or is receiving, treatment and care in the place; and
(ii)inspect any record or register required to be kept under this Act;
(e)take for examination a thing, or a sample of or from a thing, at the place;
(f)place an identifying mark in or on anything at the place;
(g)take an extract from, or copy, a document at the place, or take the document to another place to copy;
(h)produce an image or writing at the place from an electronic document or, to the extent it is not practicable, take a thing containing an electronic document to another place to produce an image or writing;
(i)take to, into or onto the place and use any person, equipment and materials the inspector reasonably requires for exercising the inspector’s powers under this part;
(j)remain at the place for the time necessary to achieve the purpose of the entry.
(2)The inspector may take a necessary step to allow the exercise of a general power.
(3)If the inspector takes a document from the place to copy it, the inspector must copy the document and return it to the place as soon as practicable.
(4)If the inspector takes from the place an article or device reasonably capable of producing a document from an electronic document to produce the document, the inspector must produce the document and return the article or device to the place as soon as practicable.
(5)In this section—
examine includes analyse, test, account, measure, weigh, grade, gauge and identify.
film includes photograph, videotape and record an image in another way.
inspect, a thing, includes open the thing and examine its contents.

578Power to require reasonable help

(1)The inspector may make a requirement (a help requirement) of an occupier of the place or a person at the place to give the inspector reasonable help to exercise a general power, including, for example, to produce a document or to give information.
(2)When making the help requirement, the inspector must give the person an offence warning for the requirement.

579Offence to contravene help requirement

(1)A person of whom a help requirement has been made must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

(2)It is a reasonable excuse for an individual not to comply with a help requirement if complying might tend to incriminate the individual or expose the individual to a penalty.
(3)However, subsection (2) does not apply if a document or information the subject of the help requirement is required to be held or kept under this Act.

Part 5 Seizure by inspectors and forfeiture

Division 1 Power to seize

580Seizing evidence at a place that may be entered without consent or warrant

An inspector who enters a place the inspector may enter under section 565 without the consent of an occupier of the place and without a warrant may seize a thing at the place if the inspector reasonably believes the thing is evidence—
(a)about a matter being investigated by the inspector under chapter 10, part 4; or
(b)of an offence against this Act.

581Seizing evidence at a place that may be entered only with consent or warrant

(1)This section applies if—
(a)an inspector is authorised to enter a place only with the consent of an occupier of the place or a warrant; and
(b)the inspector enters the place after obtaining the consent or under a warrant.
(2)If the inspector enters the place with the occupier’s consent, the inspector may seize a thing at the place only if—
(a)the inspector reasonably believes the thing is evidence—
(i)about a matter being investigated by the inspector under chapter 10, part 4; or
(ii)of an offence against this Act; and
(b)seizure of the thing is consistent with the purpose of entry as explained to the occupier when asking for the occupier’s consent.
(3)If the inspector enters the place under a warrant, the inspector may seize the evidence for which the warrant was issued.
(4)The inspector may also seize anything else at the place if the inspector reasonably believes—
(a)the thing is evidence—
(i)about a matter being investigated by the inspector under chapter 10, part 4; or
(ii)of an offence against this Act; and
(b)the seizure is necessary to prevent the thing being hidden, lost or destroyed.
(5)The inspector may also seize a thing at the place if the inspector reasonably believes it has just been used in committing an offence against this Act.

582Seizure of property subject to security

(1)An inspector may seize a thing, and exercise powers relating to the thing, despite a lien or other security over the thing claimed by another person.
(2)However, the seizure does not affect the other person’s claim to the lien or other security against a person other than the inspector or a person acting under the direction or authority of the inspector.

Division 2 Powers to support seizure

583Power to secure seized thing

(1)Having seized a thing under division 1, an inspector may—
(a)leave it at the place where it was seized (the place of seizure) and take reasonable action to restrict access to it; or
(b)move it from the place of seizure.
(2)For subsection (1)(a), the inspector may, for example—
(a)seal the thing, or the entrance to the place of seizure, and mark the thing or place to show access to the thing or place is restricted; or
(b)for equipment—make it inoperable; or

Example—

make it inoperable by dismantling it or removing a component without which the equipment can not be used
(c)require a person the inspector reasonably believes is in control of the place or thing to do an act mentioned in paragraph (a) or (b) or anything else an inspector could do under subsection (1)(a).

584Offence to contravene other seizure requirement

A person must comply with a requirement made of the person under section 583(2)(c) unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

585Offence to interfere

(1)If access to a seized thing is restricted under section 583, a person must not tamper with the thing or with anything used to restrict access to the thing without—
(a)an inspector’s approval; or
(b)a reasonable excuse.

Maximum penalty—100 penalty units.

(2)If access to a place is restricted under section 583, a person must not enter the place in contravention of the restriction or tamper with anything used to restrict access to the place without—
(a)an inspector’s approval; or
(b)a reasonable excuse.

Maximum penalty—100 penalty units.

Division 3 Safeguards for seized things

586Receipt and information notice for seized thing

(1)This section applies if an inspector seizes anything under division 1 unless—
(a)the inspector reasonably believes there is no-one apparently in possession of the thing or it has been abandoned; or
(b)because of the condition, nature and value of the thing it would be unreasonable to require the inspector to comply with this section.
(2)The inspector must, as soon as practicable after seizing the thing, give an owner or person in control of the thing before it was seized—
(a)a receipt for the thing that generally describes the thing and its condition; and
(b)an information notice about the decision to seize it.
(3)However, if an owner or person from whom the thing is seized is not present when it is seized, the receipt and information notice may be given by leaving them in a conspicuous position and in a reasonably secure way at the place at which the thing is seized.
(4)The receipt and information notice may—
(a)be given in the same document; and
(b)relate to more than 1 seized thing.
(5)The inspector may delay giving the receipt and information notice if the inspector reasonably suspects giving them may frustrate or otherwise hinder an investigation by the inspector under this Act.
(6)However, the delay may be only for so long as the inspector continues to have the reasonable suspicion and remains in the vicinity of the place at which the thing was seized to keep it under observation.

587Access to seized thing

(1)Until a seized thing is forfeited or returned, the inspector who seized the thing must allow an owner of the thing—
(a)to inspect it at any reasonable time and from time to time; and
(b)if it is a document—to copy it.
(2)Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.
(3)The inspection or copying must be allowed free of charge.

588Return of seized thing

(1)This section applies if a seized thing has some intrinsic value and is not forfeited or transferred under division 4 or 5.
(2)The inspector must return the seized thing to an owner—
(a)generally—at the end of 6 months after the seizure; or
(b)if a proceeding for an offence involving the thing is started within 6 months after the seizure—at the end of the proceeding and any appeal from the proceeding.
(3)Despite subsection (2), if the thing was seized as evidence, the inspector must return the thing seized to an owner as soon as practicable after the inspector is satisfied—
(a)its continued retention as evidence is no longer necessary; and
(b)it is lawful for the owner to possess it.
(4)Nothing in this section affects a lien or other security over the seized thing.

Division 4 Forfeiture

589Forfeiture by chief psychiatrist decision

(1)The chief psychiatrist may decide a seized thing is forfeited to the State if an inspector—
(a)after making reasonable inquiries, can not find an owner; or
(b)after making reasonable efforts, can not return it to an owner.
(2)However, the inspector is not required to—
(a)make inquiries if it would be unreasonable to make inquiries to find an owner; or
(b)make efforts if it would be unreasonable to make efforts to return the thing to an owner.

Example for paragraph (b)—

the owner of the thing has migrated to another country
(3)Regard must be had to the thing’s condition, nature and value in deciding—
(a)whether it is reasonable to make inquiries or efforts; and
(b)if inquiries or efforts are made—what inquiries or efforts, including the period over which they are made, are reasonable.

590Information notice about forfeiture decision

(1)If the chief psychiatrist decides under section 589(1) to forfeit a thing, the chief psychiatrist must as soon as practicable give a person who owned the thing immediately before the forfeiture (the former owner) an information notice about the decision.
(2)The information notice may be given by leaving it at the place where the thing was seized, in a conspicuous position and in a reasonably secure way.
(3)The information notice must state that the former owner may apply for a stay of the decision if the former owner appeals against the decision.
(4)However, subsections (1) to (3) do not apply if the place where the thing was seized is—
(a)a public place; or
(b)a place where the notice is unlikely to be read by the former owner.

591Forfeiture on conviction

(1)On the conviction of a person for an offence against this Act, the court may order the forfeiture to the State of—
(a)anything used to commit the offence; or
(b)anything else the subject of the offence.
(2)The court may make the order—
(a)whether or not the thing has been seized; or
(b)if the thing has been seized—whether or not the thing has been returned to the former owner of the thing.
(3)The court may make any order to enforce the forfeiture it considers appropriate.
(4)This section does not limit the court’s powers under another law.

592Procedure and powers for making forfeiture order

(1)A forfeiture order may be made on a conviction on the court’s initiative or on an application by the prosecution.
(2)In deciding whether to make a forfeiture order for a thing, the court—
(a)may require notice to be given to anyone the court considers appropriate, including, for example, any person who may have any property in the thing; and
(b)must hear any submissions that any person claiming to have any property in the thing may wish to make.

Division 5 Dealing with property forfeited or transferred to State

593When thing becomes property of the State

A thing becomes the property of the State if—
(a)the thing is forfeited to the State under section 589(1) or 591(1); or
(b)the owner of the thing and the State agree, in writing, to the transfer of the ownership of the thing to the State.

594How property may be dealt with

(1)This section applies if, under section 593, a thing becomes the property of the State.
(2)The chief psychiatrist may deal with the thing as the chief psychiatrist considers appropriate, including, for example, by destroying it or giving it away.
(3)The chief psychiatrist must not deal with the thing in a way that could prejudice the outcome of an appeal against the forfeiture under part 8 .
(4)If the chief psychiatrist sells the thing, the chief psychiatrist may, after deducting the costs of the sale, return the proceeds of the sale to the former owner of the thing.

Part 6 Other information-obtaining powers of inspectors

595Power to require name and address

(1)This section applies if an inspector—
(a)finds a person committing an offence against this Act; or
(b)finds a person in circumstances that lead the inspector to reasonably suspect the person has just committed an offence against this Act; or
(c)has information that leads the inspector to reasonably suspect a person has just committed an offence against this Act.
(2)The inspector may require the person to state the person’s name and residential address.
(3)The inspector may also require the person to give evidence of the correctness of the stated name or address if, in the circumstances, it would be reasonable to expect the person to—
(a)be in possession of evidence of the correctness of the stated name or address; or
(b)otherwise be able to give the evidence.
(4)When making a personal details requirement, the inspector must give the person an offence warning for the requirement.
(5)A requirement under this section is a personal details requirement.

596Offence to contravene personal details requirement

(1)A person of whom a personal details requirement has been made must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)A person may not be convicted of an offence under subsection (1) unless the person is found guilty of the offence in relation to which the personal details requirement was made.

597Power to require information

(1)This section applies if an inspector reasonably believes—
(a)an offence against this Act has been committed and a person may be able to give information about the offence; or
(b)a person may be able to give information about a matter being investigated by the inspector under chapter 10, part 4.
(2)The inspector may, by written notice given to the person, require the person to give the inspector information related to the offence, or matter being investigated, at a stated reasonable time and place.
(3)A requirement under subsection (2) is an information requirement.
(4)For information that is an electronic document, compliance with the information requirement requires the giving of a clear image or written version of the electronic document.
(5)In this section—
information includes a document.

598Offence to contravene information requirement

(1)A person of whom an information requirement is made must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)It is a reasonable excuse for an individual not to give the information if giving the information might tend to incriminate the individual or expose the individual to a penalty.
(3)However, subsection (2) does not apply if information the subject of the information requirement is required to be held or kept under this Act.
(4)In this section—
information includes a document.

Part 7 Miscellaneous provisions relating to inspectors

Division 1 Damage

599Duty to avoid inconvenience and minimise damage

In exercising a power, an inspector must take all reasonable steps to cause as little inconvenience, and do as little damage, as possible.

600Notice of damage

(1)This section applies if—
(a)an inspector damages something when exercising, or purporting to exercise, a power; or
(b)a person (the assistant) acting under the direction or authority of an inspector damages something.
(2)However, this section does not apply to damage the inspector reasonably considers is trivial or if the inspector reasonably believes—
(a)there is no-one apparently in possession of the thing; or
(b)the thing has been abandoned.
(3)The inspector must give written notice of the damage to the person who appears to the inspector to be an owner, or person in control, of the thing.
(4)However, if for any reason it is not practicable to comply with subsection (3), the inspector must—
(a)leave the notice at the place where the damage happened; and
(b)ensure it is left in a conspicuous position and in a reasonably secure way.
(5)The inspector may delay complying with subsection (3) or (4) if the inspector reasonably suspects complying with the subsection may frustrate or otherwise hinder the performance of the inspector’s functions.
(6)The delay may be only for so long as the inspector continues to have the reasonable suspicion and remains in the vicinity of the place.
(7)If the inspector believes the damage was caused by a latent defect in the thing or other circumstances beyond the control of the inspector or the assistant, the inspector may state the belief in the notice.
(8)The notice must state—
(a)particulars of the damage; and
(b)that the person who suffered the damage may claim compensation under section 601.

Division 2 Compensation

601Claim

(1)A person may claim compensation from the State if the person incurs loss because of the exercise, or purported exercise, of a power by or for an inspector including a loss arising from compliance with a requirement made of the person under part 5 or 6.
(2)The compensation may be claimed and ordered in a proceeding—
(a)brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or
(b)for an alleged offence against this Act the investigation of which gave rise to the claim for compensation.
(3)In this section—
loss includes costs and damage.

602Court order

(1)A court may order the payment of compensation only if it is satisfied it is just to make the order in the circumstances of the particular case.
(2)In considering whether it is just to order compensation, the court must have regard to—
(a)any relevant offence committed by the claimant; and
(b)whether the loss arose from a lawful seizure or lawful forfeiture.
(3)A regulation may prescribe other matters that may, or must, be taken into account by the court when considering whether it is just to order compensation.
(4)Section 599 does not provide for a statutory right of compensation other than as provided by this section.

Part 8 Reviews and appeals about seizure and forfeiture

603Definitions for pt 8

In this part—
internal review decision see section 608(1)(b).
original decision see section 608(1)(a).
review notice see section 608(1)(c).
review notice day see section 608(2)(a).

604Right of appeal

A person who has a right to be given an information notice about a decision made under this chapter has a right to appeal against the decision.

Note—

Information notices are given under sections 586 and 590.

605Appeal process starts with internal review

(1)Every appeal against a decision must be, in the first instance, by way of an application for internal review.
(2)A person who has a right to appeal against a decision may apply to the chief executive for internal review of the decision.

606How to apply for internal review

(1)An application for internal review of a decision must—
(a)be in the approved form; and
(b)include enough information to enable the chief executive to decide the application.
(2)The application must be made within 28 days after—
(a)the day the person is given an information notice about the decision; or
(b)if the person is not given an information notice about the decision—the day the person otherwise becomes aware of the decision.
(3)The chief executive may, at any time, extend the time for making the application.
(4)The application must not be dealt with by—
(a)the person who made the decision; or
(b)a person in a less senior office than the person who made the decision.
(5)Subsection (4) applies despite the Acts Interpretation Act 1954 , section 27A .

607Stay of operation of decision

(1)The making of an application for internal review of a decision does not affect the operation of the decision or prevent it being implemented.
(2)However, the applicant may apply to the court for a stay of the decision.
(3)The court may stay the decision to secure the effectiveness of the internal review and a later appeal to the court.
(4)The stay—
(a)may be given on conditions the court considers appropriate; and
(b)operates for the period decided by the court.
(5)The period of the stay must not extend past the day when the chief executive decides the application for internal review and any later period the court allows the applicant to enable the applicant to appeal against the internal review decision.

608Internal review decision

(1)The chief executive must, within 28 days after receiving an application for review of a decision—
(a)review the decision (the original decision); and
(b)make a decision (the internal review decision) to—
(i)confirm the original decision; or
(ii)amend the original decision; or
(iii)substitute another decision for the original decision; and
(c)give the applicant written notice (the review notice) of the internal review decision.
(2)If the internal review decision is not the decision sought by the applicant, the review notice must state the following—
(a)the day the notice is given to the applicant (the review notice day);
(b)the reasons for the decision;
(c)that the applicant may appeal against the decision to the court within 28 days after the review notice day;
(d)how to appeal;
(e)that the applicant may apply to the court for a stay of the decision.
(3)If the chief executive does not give the review notice within the 28 days, the chief executive is taken to have made an internal review decision confirming the original decision.

609Who may appeal

A person who has applied for internal review of an original decision and is dissatisfied with the internal review decision may appeal to the court against the decision.

610Procedure for an appeal to the court

(1)An appeal to the court is started by filing a notice of appeal with the registrar of the court.
(2)The notice of appeal must be filed within 28 days after—
(a)if the applicant is given a review notice—the review notice day; or
(b)otherwise—the day the chief executive is taken to have made an internal review decision confirming the original decision.
(3)The court may, at any time, extend the period for filing the notice of appeal.
(4)The notice of appeal must state fully the grounds of the appeal.
(5)A copy of the notice must be served on the chief executive.

611Stay of operation of internal review decision

(1)An appeal against an internal review decision does not affect the operation of the decision or prevent the decision being implemented.
(2)However, the appellant may apply to the court for a stay of the internal review decision.
(3)The court may stay the internal review decision to secure the effectiveness of the appeal.
(4)The stay—
(a)may be given on conditions the court considers appropriate; and
(b)operates for the period decided by the court.
(5)The period of the stay must not extend past the day when the court decides the appeal.

612Powers of court on appeal

(1)In deciding an appeal against an internal review decision, the court—
(a)has the same powers as the chief executive for making the internal review decision; and
(b)is not bound by the rules of evidence; and
(c)must comply with natural justice.
(2)An appeal is by way of rehearing.
(3)The court may—
(a)confirm the internal review decision; or
(b)set aside the internal review decision and substitute another decision; or
(c)set aside the internal review decision and return the matter to the chief executive with directions the court considers appropriate.

613Effect of decision of court on appeal

(1)If the court sets aside the internal review decision and returns the matter to the chief executive with directions the court considers appropriate, and the chief executive makes a new decision, the new decision is not subject to internal review or appeal under this part.
(2)If the court substitutes another decision—
(a)the substituted decision is taken to be the decision of the chief executive; and
(b)the chief executive may give effect to the decision as if—
(i)the decision were the original decision of the chief executive; and
(ii)no application for internal review or appeal had been made.

Chapter 15 Suspension of criminal proceedings, offences and other legal matters

Part 1 Preliminary

614Purpose of ch 15

The purpose of this chapter is to provide for—
(a)matters relating to the suspension of criminal proceedings against a person who becomes subject to this Act; and
(b)offences relating to patients; and
(c)offences relating to officials; and
(d)the detention of, and use of reasonable force in relation to, particular patients; and
(e)matters relating to evidence and legal proceedings.

Part 2 Suspension of criminal proceedings

615Purpose of pt 2

(1)The purpose of this part is to provide for—
(a)the suspension of criminal proceedings against a person—
(i)who becomes a classified patient; or
(ii)in relation to whom a direction is given under chapter 4 for a psychiatrist report to be prepared; or
(iii)in relation to whom a reference is made to the Mental Health Court; and
(b)the ending of the suspension of the criminal proceedings; and
(c)the giving of notices in relation to the suspension, and the ending of the suspension, of the criminal proceedings.

616Suspension of proceedings

(1)This section applies if any of the following happens—
(a)a person charged with an offence, other than an offence against a law of the Commonwealth, becomes a classified patient;

Note—

A person becomes a classified patient if the person is transported to, or remains in, an inpatient unit of an authorised mental health service under chapter 3 , part 2 or 3.
(b)the chief psychiatrist gives a direction under section 91 or 93 for a psychiatrist report to be prepared about a person in relation to a charge of a serious offence or an associated offence;
(c)a person’s mental state in relation to an offence is referred to the Mental Health Court under section 101, 110, 175 or 183.
(2)A proceeding against a person mentioned in subsection (1)(a) for the offence is suspended.
(3)A proceeding against a person mentioned in subsection (1)(b) for the serious offence or associated offence to which the chief psychiatrist’s direction relates is suspended.
(4)A proceeding against a person mentioned in subsection (1)(c) for the offence to which the reference relates is suspended.
(5)If more than 1 of the events happens in relation to a proceeding against a person, the proceeding is suspended on and from the happening of the earliest of the events.

617Giving notice of particular suspensions

(1)This section applies if a proceeding is suspended under section 616(2) or (3).
(2)As soon as practicable after the proceeding is suspended, the chief psychiatrist must give written notice to the chief executive (justice) of the suspension.
(3)As soon as practicable after receiving a notice under subsection (2), the chief executive (justice) must give each of the following a copy of the notice—
(a)the registrar of the court in which the proceeding for the offence has been brought;
(b)the prosecuting authority for the offence;
(c)if the person is a minor—the chief executive (youth justice).

s 617 amd 2016 No. 58s 10sch 1

618Ending of suspension

(1)This section applies to a proceeding against a person that is suspended under section 616.
(2)The suspension of the proceeding ends only if each of the following is satisfied—
(a)the person is not, or is no longer, a classified patient;
(b)if the chief psychiatrist has given a direction under section 91 or 93 for a psychiatrist report to be prepared about the person in relation to a charge of a serious offence or associated offence—the direction has been revoked;
(c)if the chief psychiatrist has decided not to make a reference under section 101 to the Mental Health Court—the period mentioned in section 101(3), or any extended period mentioned in section 101(5), in which the chief psychiatrist may make the reference has ended;
(d)if the person’s mental state in relation to the offence has been referred to the Mental Health Court under section 101, 110, 175 or 183—the Mental Health Court has made a decision on the reference or the reference has been withdrawn.

s 618 amd 2017 No. 3s 43

619Giving notice of ending of suspension

(1)As soon as practicable after the ending of the suspension of a proceeding under section 616, the chief psychiatrist must give each of the following written notice of the ending of the suspension—
(a)the person;
(b)the person’s lawyer, if any;
(c)the chief executive (justice);
(d)if an authorised mental health service is responsible for the person—the administrator o