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. 5 s 866

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.

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.

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(3)(b).

s 11 amd 2022 No. 1 s 117 sch 1 pt 2

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.

14ATerritory of Norfolk Island taken to be a State

For this Act, the Territory of Norfolk Island is taken to be a State.

s 14A ins 2022 No. 1 s 9B

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.

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.

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.

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.

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. 3 s 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.

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 sector 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.

s 38 amd 2022 No. 1 s 52

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.

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. 3 s 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. 3 s 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.

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. 3 s 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. 3 s 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. 3 s 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.

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.

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.

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).

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.

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. 58 s 10 sch 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.

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).

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.

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.

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. 3 s 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.

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. 3 s 10

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. 3 s 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.

Note—

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

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.

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

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.

112Application of pt 3

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

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. 58 s 10 sch 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.

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 sections 117 and 117A.

s 116 amd 2022 No. 1 s 53

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.

117ASubstantial dispute about fact relied on in expert report

(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 a fact (a material fact) that is material to an opinion stated in an expert’s report received in evidence by the court on the reference.

(2)Without limiting subsection (1), a material fact may relate to—

(a)the person’s relevant circumstances before, at the time, or after the offence was allegedly committed; or

(b)an event, act or omission related to the offence, whether the event, act or omission happened before, at the time, or after the offence was allegedly committed.

s 117A ins 2022 No. 1 s 54

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 or 117A, 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.

s 118 amd 2022 No. 1 s 55

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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).

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.

ch 5 pt 5 div 2 hdg amd 2024 No. 7 s 14

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 and transcript at trial

(1)This section applies to—

(a)an expert’s report received in evidence by the Mental Health Court on a reference; and

(b)a transcript of the proceeding of the Mental Health Court on the reference.

(2)The report and transcript are admissible at the trial of the person for the offence in relation to the reference, or any other offence alleged to have been committed by the person, 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.

s 157 amd 2024 No. 7 s 15

157AAdmissibility of expert’s report and transcript in proceeding before Magistrates Court

(1)This section applies to—

(a)an expert’s report received in evidence by the Mental Health Court on a reference; and

(b)a transcript of the proceeding of the Mental Health Court on the reference.

(2)The report and transcript are admissible in a proceeding before a Magistrates Court for the offence in relation to the reference, or any other offence alleged to have been committed by the person, for the purpose of deciding whether—

(a)to dismiss a complaint for the offence under section 172; or

(b)to adjourn the hearing of a complaint for the offence under section 173.

s 157A ins 2022 No. 1 s 56

amd 2024 No. 7 s 16

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)This section applies to an expert’s report filed in the Mental Health Court Registry for a proceeding on a reference.

(2)The report may be given to, and used by, a person only with the leave of the court.

(3)The court may grant the leave subject to the conditions it considers appropriate.

(4)Despite subsection (2), if the report has been received in evidence by the court on the reference, the report may be given to—

(a)if an authorised mental health service is responsible for the person the subject of the reference—the administrator of the service; or

(b)if the forensic disability service is responsible for the person the subject of the reference—the administrator of the service; or

(c)the tribunal for conducting a review.

s 160 sub 2024 No. 7 s 17

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.

ch 5 pt 5 div 4 sdiv 1 hdg ins 2022 No. 1 s 57

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.

166APerson subject to existing treatment support order

(1)This section applies if the Mental Health Court is required under this chapter to make a forensic order for a person who is already subject to a treatment support order.

(2)The court may—

(a)revoke the treatment support order and make a forensic order for the person; or

(b)amend the treatment support order to—

(i)convert the treatment support order into a forensic order for the person; and

(ii)make other necessary changes to the order.

Note—

If there is an information notice relating to the person, the revocation or amendment of the treatment support order under subsection (2) does not affect the information notice. See section 322.

s 166A ins 2022 No. 1 s 58

167Person subject to existing treatment authority

(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.

(2)On the making of the forensic order (mental health), the treatment authority 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.

s 167 sub 2022 No. 1 s 58

ch 5 pt 5 div 4 sdiv 2 hdg ins 2022 No. 1 s 58

167APerson 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. 3 s 12

167BPerson subject to existing forensic order

(1)This section applies if the Mental Health Court is required under this chapter to make a treatment support order for a person who is already subject to a forensic order.

(2)The court may—

(a)revoke the forensic order and make a treatment support order for the person; or

(b)amend the forensic order to—

(i)convert the forensic order into a treatment support order for the person; and

(ii)make other necessary changes to the order.

Note—

If there is an information notice relating to the person, the revocation or amendment of the forensic order under subsection (2) does not affect the information notice. See section 322.

s 167B ins 2022 No. 1 s 59

167CPerson subject to existing treatment authority

(1)This section applies if the Mental Health Court makes a treatment support order for a person who is already subject to a treatment authority.

(2)On the making of the treatment support order, the treatment authority ends.

s 167C ins 2022 No. 1 s 59

168Relationship with ch 16, pt 1

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

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.

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).

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.

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. 3 s 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. 3 s 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. 3 s 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.

(4)Also, subsection (1)(b) does not apply to a proceeding before the Mental Health Court.

s 180A ins 2017 No. 3 s 15

amd 2022 No. 1 s 60

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. 3 s 15

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.

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.

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.

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. 3 s 16

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(3)(b);

(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.

s 200 amd 2022 No. 1 s 117 sch 1 pt 2

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.

204Application of pt 3

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

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.

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.

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).

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.

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. 3 s 17

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. 3 s 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.

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.

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)freely and voluntarily make the appointment or revocation; and

(c)communicate the appointment or revocation.

s 223 amd 2022 No. 1 s 61

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.

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. 3 s 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.

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. 3 s 20

232Meaning of regulated treatment

In this part—

regulated treatment means—

(a)electroconvulsive therapy; or

(b)a non-ablative neurosurgical procedure.

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.

(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)freely and voluntarily make the decision; and

(c)communicate the decision.

(3)A person can give informed consent in an advance health directive.

s 233 amd 2022 No. 1 s 62

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.

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)for a patient who is an adult—

(i)if the adult is unable to give informed consent to the treatment or is subject to a treatment authority, forensic order or treatment support order—the tribunal has approved under section 509 the performance of the therapy on the adult; or

(ii)otherwise—the adult has given informed consent to the treatment; or

(b)for a patient who is a minor—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.

s 236 amd 2022 No. 1 s 63

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(3)(b).

(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.

s 237 amd 2022 No. 1 s 117 sch 1 pt 2

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

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.

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(3)(b).

s 243 def relevant patient amd 2022 No. 1 s 117 sch 1 pt 2

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.

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.

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. 3 s 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.

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.

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. 3 s 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. 3 s 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.

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.

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.

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.

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.

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.

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.

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. 3 s 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.

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)freely and voluntarily make the request; and

(c)communicate the request.

patient includes a person who may become a patient.

s 288 amd 2022 No. 1 s 64

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.

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.

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.

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.

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 Sector Act 2022.

(3)The chief psychiatrist must be a psychiatrist.

s 298 amd 2022 No. 34 s 365 sch 3

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.

305Making policies or practice guidelines