Mental Health Act 1974

Queensland MENTAL HEALTH ACT 1974 Reprinted as in force on 28 February 2002 (includes amendments up to Act No. 7 of 2001) Warning—see last endnote for uncommenced amendments This is the reprint current on the repeal date Reprint No. 2G This reprint is prepared by the Office of the Queensland Parliamentary Counsel Warning—This reprint is not an authorised copy

Information about this reprint This Act is reprinted as at 28 February 2002. The reprint shows the law as amended by all amendments that commenced on or before that day (Reprints Act 1992 s 5(c)). The reprint includes a reference to the law by which each amendment was made—see list of legislation and list of annotations in endnotes. This page is specific to this reprint. See previous reprints for information about earlier changes made under the Reprints Act 1992. A table of earlier reprints is included in the endnotes. Also see endnotes for information about— • when provisions commenced • provisions that have not commenced and are not incorporated in the reprint • editorial changes made in earlier reprints.

Queensland MENTAL HEALTH ACT 1974 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 Short title and commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 6 Construction and application of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 PART 2—ADMINISTRATION 7 Administration of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 8 Annual report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 9 Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 Director, and other officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 11 Delegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 12 Official visitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 13 Visits by official visitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 14 Patient Review Tribunals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 14A Special Patient Review Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 15 Powers and proceedings of and appeals from tribunal . . . . . . . . . . . . . . . . . 17 15A Distribution of tribunals’ findings etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 16 Psychiatric hospitals, training centres and other places . . . . . . . . . . . . . . . . 21 PART 3—ADMISSION AND DETENTION OF PATIENTS GENERALLY, AND REMOVALS TO PLACES OF SAFETY Division 1—Informal admissions 17 Informal admission of patients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Division 2—Regulated admissions 18 Application for admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 19 Applications in respect of patients already in hospital . . . . . . . . . . . . . . . . . 23 20 Effect of application for admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2 Mental Health Act 1974 21 Duration of authority for detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Admission applications generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Medical recommendations generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Incorrect or defective application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 3—Removals to places of safety 25 Warrant to remove to place of safety. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Removal without warrant to place of safety . . . . . . . . . . . . . . . . . . . . . . . . . 27 Procedure on and following removal to place of safety . . . . . . . . . . . . . . . . PART 4—PATIENTS CONCERNED IN CRIMINAL AND LIKE PROCEEDINGS 28 Construction of part with the Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . 28A Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28B Mental Health Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28C Jurisdiction and proceedings of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28D References to tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28E Examinations upon tribunal’s order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Entry of not guilty plea by court order where accused mentally ill . . . . . . . 29A Persons charged with simple offences mentally ill . . . . . . . . . . . . . . . . . . . . 29B Patients under pt 3, div 2 or 3 charged with indictable offences. . . . . . . . . . 29C Persons charged with indictable offences mentally ill upon examination of witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Examinations of patients referred to in ss 29B(1) and 29C(4) . . . . . . . . . . . 31 Persons mentally ill while in custody awaiting examination of witnesses . . 31A Action on persons found not to be in need of detention . . . . . . . . . . . . . . . . 31B Admission to hospital not to prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Persons mentally ill while in custody after committal for trial or sentence . 33 Procedures of Mental Health Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33A Procedure on finding of unsoundness of mind . . . . . . . . . . . . . . . . . . . . . . . 34 Procedure upon finding of unfit for trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34A Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Consequences of Mental Health Tribunal’s findings or Governor in Council’s order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35A Consequences to proceedings of findings of Mental Health Tribunal. . . . . . 25 26 26 28 29 30 31 33 33 33 35 36 36 38 39 43 43 45 46 48 50 50 50 52 52 54 55 55

3 Mental Health Act 1974 36 Review of patient detained as restricted patient under this part . . . . . . . . . . 37 Appeal against finding of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Persons mentally ill where ss 613 and 645 of the Criminal Code applicable 39 Persons mentally ill where s 647 of the Criminal Code applicable. . . . . . . . 40 Special provisions as to patients in custody . . . . . . . . . . . . . . . . . . . . . . . . . 41 Transfer of detained person by director. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Granting of leave to detained persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Admission of prisoners to hospital for treatment . . . . . . . . . . . . . . . . . . . . . 43A Finality of Mental Health Tribunal’s decisions . . . . . . . . . . . . . . . . . . . . . . . 43B Finality of decision of Court of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43C Accused’s right to trial notwithstanding lack of criminal responsibility. . . . 43D Findings upon accused’s mental condition not to be published to prejudice of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43E Custody of accused in security patients’ hospital during proceedings . . . . . PART 5—TRANSFER, LEAVE OF ABSENCE, AND DISCHARGE OF PATIENTS 44 Transfer of patients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Removal of patients out of Queensland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Leave of absence from hospital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46A Leave of absence for detainees under s 18 of the Criminal Law Amendment Act 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Return and re-admission of patients absent without leave . . . . . . . . . . . . . . 48 Discharge of patients generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Restrictions on discharge by certain persons. . . . . . . . . . . . . . . . . . . . . . . . . 50 Restrictions on leave and discharge of certain persons . . . . . . . . . . . . . . . . . PART 6—MISCELLANEOUS AND GENERAL 50A Powers over restricted persons in certain circumstances. . . . . . . . . . . . . . . . 50B Incidental powers for purposes of ss 50 and 50A . . . . . . . . . . . . . . . . . . . . . 51 Relatives and nearest relatives of patients . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Guardians and custodians as nearest relatives. . . . . . . . . . . . . . . . . . . . . . . . 53 Prohibition of certain treatments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Visiting and examination of patients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Forgery of documents and use of forged documents. . . . . . . . . . . . . . . . . . . 56 56 57 61 64 65 66 66 70 71 72 72 73 74 75 75 77 77 78 79 80 83 84 84 86 86 87 88

4 Mental Health Act 1974 58 Wilfully making, or making use of, false entry. . . . . . . . . . . . . . . . . . . . . . . 88 59 Ill-treatment of patient or resident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 60 Assisting patients to absent themselves without leave . . . . . . . . . . . . . . . . . 89 61 Obstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 62 Offence provision of the Criminal Code not affected . . . . . . . . . . . . . . . . . . 90 63 Penalties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 64 Application of Transport Operations (Road Use Management) Act to vehicles in hospital or training centre grounds . . . . . . . . . . . . . . . . . . . . . 91 65 Evidentiary provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 66 Provisions as to custody, conveyance, and detention . . . . . . . . . . . . . . . . . . 93 68 Exercise of powers by hospital administrator . . . . . . . . . . . . . . . . . . . . . . . . 93 69 Protection for acts done in pursuance of this Act . . . . . . . . . . . . . . . . . . . . . 93 69A Nature of proceedings before Mental Health Tribunal . . . . . . . . . . . . . . . . . 94 70 Powers of Mental Health Tribunal in respect of patient . . . . . . . . . . . . . . . . 94 71 Authority of Mental Health Tribunal’s orders . . . . . . . . . . . . . . . . . . . . . . . . 96 72 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 PART 7—FINANCIAL PROVISIONS 72A Definition for pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 73 Patients’ Trust Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 73A Amenities account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 73B Patients’ advisory committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 PART 8—TRANSITIONAL PROVISIONS Division 1—Provisions for Act before commencement of Health and Other Legislation Amendment Act 1998 77 Mental Health Act 1962 references . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 78 Mental Health Act 1974 references . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 79 References to certain terms under repealed Acts. . . . . . . . . . . . . . . . . . . . . . 98 Division 2—Provision for Health and Other Legislation Amendment Act 1998 80 Chief executive’s first report under s 8 to include a report by chief health officer for period when chief health officer administering Act. . . . . . 99 Division 3—Provisions for Guardianship and Administration Act 2000 81 Public trustee becomes administrator if managing estate . . . . . . . . . . . . . . . 99 82 Committee continues for 1 year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

5 Mental Health Act 1974 SCHEDULE 6 . . . . . . . . . . . . . . . . . . . . . . . . 101 SUBJECT MATTERS FOR REGULATIONS 1 Persons administering Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 2 Authorised persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 3 Reports by official visitors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 4 Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 5 Administration of certain hospitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 6 Hospital staffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 7 Treatment of patients. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 8 Training of nurses etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 9 The nature of arrangements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 10 Transfer, production etc. of patients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 11 Patients absent without leave. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 13 Legal custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 14 Charges for treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 15 Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 16 Service and proof of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 17 Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 18 Offences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 19 Fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 20 Traffic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 ENDNOTES 1 Index to endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 2 Date to which amendments incorporated. . . . . . . . . . . . . . . . . . . . . . 105 3 Key . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 4 Table of earlier reprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 5 Tables in earlier reprints. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 6 List of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 7 List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 8 List of forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

6 Mental Health Act 1974 9 Transitional and savings provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 120 10 Provisions that have not commenced and are not incorporated into reprint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

s1 7 s5 Mental Health Act 1974 MENTAL HEALTH ACT 1974 [as amended by all amendments that commenced on or before 28 February 2002] An Act relating to the treatment and care of mentally ill persons and the training and care of intellectually handicapped persons and to their property and affairs; and for connected purposes PART 1—PRELIMINARY 1 Short title and commencement (1) This Act may be cited as the Mental Health Act 1974 . (2) Subject to section 14(13), this Act shall commence on a day to be fixed by proclamation. 5 Interpretation (1) In this Act— “authorised person” , in relation to a patient, means a person who is appointed as such under and in accordance with the regulations. “chief health officer” means the chief health officer under the Health Act 1937 . “designated authorised person” means a person designated and authorised by the Minister, in writing, to act as an authorised person for the purposes of section 25. “designated medical practitioner” , in relation to— (a) a patient liable to be detained in a public hospital and classified under the regulations made pursuant to the Health Services Act 1991 as a public patient—means a medical practitioner appointed by the hospital administrator;

s5 8 s5 Mental Health Act 1974 (b) a patient liable to be detained in any hospital or other place not being a public hospital or a private hospital—means a medical practitioner appointed by the director; (c) a patient admitted to and for the time being remaining in a psychiatric hospital or any other place established by the Governor in Council pursuant to section 16 and not liable to be detained therein—means a medical practitioner appointed by the director; (d) any other patient—means the medical practitioner for the time being in charge of the treatment of the patient. “director” means the Director of Mental Health appointed under this Act. “Director of Intellectual Handicap Services” means the officer holding the office of Director of Intellectual Handicap Services in the department within which the Family Services Act 1987 is administered. “health service employee” see Health Services Act 1991 , section 2. 1 “hospital” means a private hospital, a public hospital, a psychiatric hospital, a security patients’ hospital, or a place established by the Governor in Council pursuant to section 16. “hospital administrator” , in relation to— (a) a private hospital—means the person who manages that hospital; (b) a public hospital—means the person having the control or management of the hospital; (c) a psychiatric hospital, a security patients’ hospital, a place established by the Governor in Council pursuant to section 16 or an institution—means the holder of an office for the time being or other person prescribed in respect of the hospital, place or institution as the hospital administrator and, in the absence of such holder or other person, means the person for the time being occupying the office or performing the duties of the holder or other person. “Mental Health Tribunal” means the Mental Health Tribunal established under part 4. 1 Under the Health Services Act 1991 , section 24, the chief executive may appoint persons in the department as health service employees for the delivery of public sector health services.

s5 9 s5 Mental Health Act 1974 “patient” means a person suffering or appearing to be suffering from mental illness. “place of safety” means any hospital (other than a security patients’ hospital) or police station, or any other suitable place the occupier of which is willing to receive temporarily a patient. “police station” includes a police office, watchhouse, and lockup. “prison” means a prison within the meaning of the Corrective Services Act 2000 . “private hospital” means a private hospital under the Private Health Facilities Act 1999 for which a licence under that Act is in force. “psychiatric hospital” means a hospital, an institution or premises established or deemed to have been established under this Act as a psychiatric hospital. “psychiatrist” means a medical practitioner registered under the Medical Act 1939 as a specialist with respect to the specialty of psychiatry, and whose name remains upon the Register of Specialists, Queensland, with respect to such specialty. “public hospital” means a public sector hospital within the meaning of the Health Services Act 1991 . “resident” means any intellectually handicapped person who is residing within a training centre. “security patients’ hospital” means a security patients’ hospital established under section 16. “the Supreme Court” includes a Circuit Court. “training” , in relation to a resident, includes observation, assessment, intervention and care and, where necessary education, supervision, social rehabilitation, help and advice. “training centre” means a centre or premises established or deemed to have been established under this Act as a training centre, and includes a community villa or residential centre for the intellectually handicapped. “treatment” , in relation to a patient, includes observation, examination, diagnostic investigation, medical or surgical treatment and care and training, education, supervision and social rehabilitation. “tribunal” means a Patient Review Tribunal constituted under section 14 or a special Patient Review Tribunal constituted under section 14A.

s 6 10 s 7 Mental Health Act 1974 “welfare” , in relation to a patient, means health or safety or both health and safety. (2) The provisions of this Act apply, with all necessary adaptations, in relation to drug dependence and intellectual handicap as if each of those conditions were a mental illness. 6 Construction and application of this Act This Act shall be construed and applied— (a) so that any private hospital is not compelled to admit any patient; (b) so as not to prevent any patient who is in need of care and treatment for mental illness from receiving the same in pursuance of arrangements made in that behalf and, subject to considerations for the patient’s own welfare or the protection of others, with no more legal formality or restriction of liberty than is applied to people who need care and treatment because of other types of illness, disability, or social difficulty; (c) so that in the case of any patient the compulsory powers relating to detention conferred by this Act are exercised for the purposes only of the patient’s own welfare or the protection of others; (d) so that a person shall not be considered to be suffering from mental illness by reason only that— (i) the person expresses or refuses or fails to express a particular political, anarchic, religious or irreligious, legal or illegal, or moral or immoral opinion; or (ii) the person engages in or refuses or fails to engage in a particular political, anarchic, religious or irreligious, legal or illegal or moral or immoral activity. PART 2—ADMINISTRATION 7 Administration of Act This Act shall be administered by the Minister, and, subject to the Minister, by the chief executive, and, subject as aforesaid, by the director.

s 8 11 s 10 Mental Health Act 1974 8 Annual report The chief executive shall annually (in accordance with any determination by the Minister as to the time of the furnishing thereof) make and furnish to the Minister a report on the chief executive’s administration under this Act, and such report shall be laid before Parliament within 14 sitting days after such publication. 9 Minister (1) The Minister, in addition to the functions, powers and duties conferred or imposed upon the Minister by this Act, may from time to time visit and inspect every hospital with or without previous notice and at any time of the day or night as the Minister thinks fit, and may at any time make or cause to be made such inspections, investigations, and inquiries as the Minister deems necessary for the purpose of administering this Act. (2) The Minister, for the purpose of any inspection, investigation or inquiry made by the Minister under this Act, has and may exercise all the powers, authorities, protection and jurisdiction of a commission of inquiry, as well as of a chairperson and of a member of a commission of inquiry, under the Commissions of Inquiry Act 1950 . (3) Before the Minister makes, or causes to be made, an inspection, investigation or inquiry under subsection (1), the Minister must seek advice from the chief executive and the chief health officer. 10 Director, and other officers (1) The Governor in Council may appoint under and for the purposes of this Act a Director of Mental Health who shall be paid a salary at such rate as the Governor in Council determines from time to time. (2) In addition to the functions, powers and duties conferred or imposed upon the director by this Act, the director has also, without limiting the provisions or operation of section 9, the functions, powers and duties conferred or imposed on the Minister, under section 9(1), for visiting and inspecting hospitals. (5) The Governor in Council may appoint a duly qualified person who will while that order remains in force, at and in accordance with the direction of the Minister, exercise and discharge the functions, powers and duties of the director, if the director is unable through absence, illness, or any other cause to exercise and perform the director’s functions, powers

s 11 12 s 13 Mental Health Act 1974 and duties or in the event of a vacancy existing in the office of director and the person so appointed will have the necessary authority accordingly. 11 Delegations (1) The Minister may delegate the Minister’s powers under this Act to an appropriately qualified officer or employee of the department. (2) The chief executive may delegate the chief executive’s powers under this Act to an appropriately qualified officer or employee of the department. (3) The director may delegate the director’s powers under this Act to an appropriately qualified officer or employee of the department. (4) In this section— “appropriately qualified” includes having the qualifications, experience or standing appropriate to exercise the power. Example of ‘standing’— A person’s classification level in the department. 12 Official visitors (1) The Governor in Council may from time to time appoint, in relation to any hospital or training centre or any part of the State, 2 or more official visitors, 1 of whom shall be a medical practitioner or a person qualified to practise a profession that requires a special knowledge and interest with respect to mental health, and 1 a barrister-at-law, a solicitor, a Stipendiary Magistrate, or person qualified for appointment as a Stipendiary Magistrate. (2) Official visitors have such functions, powers and duties as are or may be prescribed and all or any of such prescribed functions, powers and duties may differ in relation to different official visitors appointed for the same hospital or training centre or part of the State. (3) Official visitors shall receive such remuneration and allowances as are from time to time approved by the Governor in Council. 13 Visits by official visitors (1) Any 1 or more of the official visitors shall visit every hospital or training centre to which the official visitor or visitors may be appointed and

s 14 13 s 14 Mental Health Act 1974 every hospital or training centre which by the regulations the official visitor or visitors is or are required to so visit once at least in every month and shall make special visits concerning the administration of this Act or particular matters at such times as the Minister or the chief executive or director may direct. (1A) Such visits may be made without previous notice and at such hours of the day or night as the official visitor or visitors making the same thinks or think fit, or as may be required by the person directing the visit. (2) Immediately after each visit made by an official visitor a report with respect to the visit shall be prepared by the official visitor and forthwith be furnished by the official visitor— (a) where the report relates to a visit made at the direction of the Minister or chief executive—to the person who gave the direction; or (b) where the report relates to a visit to a hospital, other than a visit referred to in paragraph (a)—to the director; or (c) where the report relates to a visit to a training centre, other than a visit referred to in paragraph (a)—to the Director of Intellectual Handicap Services. (3) In addition to such other inquiries which the official visitor or visitors may make for the purposes of the administration of this Act, an official visitor or official visitors shall make such inquiries as are prescribed. 14 Patient Review Tribunals (1) The Governor in Council may, by regulation, divide or re-divide the State into regions for the purposes of this section, but until the Governor in Council so divides the State, the whole of the State shall be, and shall be deemed always to have been, a region for the purposes of this section. (2) For each region there shall be constituted a tribunal, to be called a Patient Review Tribunal, for the purpose of dealing with applications and references by and in respect of patients under the provisions of this Act. (3) Each tribunal shall consist of not less than 3 and not more than 6 members, appointed by the Governor in Council by gazette notice, of whom— (a) 1 must be—

s 14 14 s 14 Mental Health Act 1974 (i) a retired Supreme Court judge or a retired District Court judge; or (ii) a person who is qualified for appointment as a judge of the District Court; or (iii) a retired judge of a court of the Commonwealth, another State or a Territory; who is to be chairperson of the tribunal; and (b) 1 at least shall be a medical practitioner; and (c) 1 at least shall be a person qualified to practise a profession that requires a special knowledge and interest with respect to mental illness. (5) Subject to subsections (5A) and (6), a person appointed a member of a tribunal holds office for a term of 3 years and is eligible for reappointment. (5A) A person appointed to fill a vacancy, caused otherwise than by the retirement of a member on the expiration of the member’s term of office, holds office only for the unexpired portion of the term of the office of the member in whose place the person is appointed. (5B) The Minister shall, in the case of a vacancy caused or about to be caused by the retirement on the expiration of the term of office of a member appointed in compliance with the requirements of subsection (3)(b), and may, in the case of a vacancy arising or about to arise in the office of such a member from any other cause, notify, as and in the manner prescribed, an association of persons recognised by the Minister as representative of psychiatrists. (5C) Within 4 weeks after an association is notified by the Minister under subsection (5B) there shall be submitted to the Minister by or on behalf of the association a list of the names of at least 3 medical practitioners considered by its members to be suitable for appointment to the tribunal in whose membership the vacancy has occurred or is about to occur. (5D) Where a list is not received by the Minister as and within the time provided in subsection (5C), the Governor in Council shall appoint such medical practitioner as the Governor in Council thinks fit to fill the vacancy.

s 14 15 s 14 Mental Health Act 1974 (5E) The appointment of a medical practitioner in compliance with the requirements of subsection (3)(b) shall specify that the medical practitioner is appointed pursuant to that paragraph. (6) A casual vacancy in the office of member of a tribunal occurs if a member holding office— (a) dies; or (d) tenders the member’s resignation from office, in writing, addressed to the Minister; or (e) is removed from office by the Governor in Council. (7) The Governor in Council may, by gazette notice, appoint any person who is eligible for appointment as a member of a tribunal to fill any casual vacancy, and a person so appointed, while filling the casual vacancy, is deemed to be a member. (7A) Despite subsection (5), the Governor in Council may, for the purpose of increasing the number of members of a tribunal to not more than 6, by gazette notice, appoint a person as a member of a tribunal for the unexpired portion of the term of office of the other members. (8) A tribunal shall meet at such times and places and conduct its business in such manner as may be prescribed or, in so far as not prescribed, as it may from time to time determine. (8A) Three members of a tribunal, of whom the chairperson shall be one, constitute a quorum and have all the powers, authorities, duties and functions of a tribunal pursuant to this Act. (8B) In respect of any decision or determination of a tribunal, the decision or determination of the majority of the members thereof (there being a quorum) is the decision or determination of the tribunal. (8C) If the members of the tribunal are equally divided in any decision or determination, the decision or determination of the chairperson prevails and is the decision or determination of the tribunal. (9) The Governor in Council may, by gazette notice, appoint a person qualified for appointment under subsection (3)(a) to act as chairperson of a tribunal during the absence through illness or other cause of the person who holds the office of chairperson. (9A) While the appointee so acts the appointee shall be deemed to be a member of the tribunal and its chairperson.

s 14A 16 Mental Health Act 1974 s 14A (10) The members of a tribunal shall receive such remuneration and allowances as are from time to time approved by the Governor in Council. (11) The Governor in Council may, by gazette notice, appoint a secretary to a tribunal and such other officers as the Governor in Council considers necessary for the effectual operation of the tribunal pursuant to this Act, and may, whenever the Governor in Council considers it necessary, likewise appoint any person to act temporarily as secretary to the tribunal or in the room of any other officer who is absent or for any other reason is unable to carry out the officer’s duties for the time being. 14A Special Patient Review Tribunals (1) The chairperson for a region may, under this section, constitute 1 or more Patient Review Tribunals (a “special tribunal” ) for dealing with applications and references, and hearing reviews, for patients detained, or liable to be detained, in hospitals in the region. (2) The chairperson must, by signed writing, appoint the members of a special tribunal from the panel of members consisting of the following— (a) members of the tribunals constituted under section 14 (the “regional tribunals” ); (b) persons appointed under subsection (3). (3) The Governor in Council may, by gazette notice, appoint a qualified person to be a panel member. (4) For subsection (3), a qualified person is a person who is qualified under section 14(3) to be appointed as a member of a regional tribunal. (5) The number and qualifications of the members of a special tribunal must be the same as under section 14(3) for a regional tribunal. (6) The chairperson must, in the instrument of appointment of members, appoint a person qualified under section 14(3)(a) to be the chairperson of a special tribunal. (7) For dealing with an application or reference or hearing a review for a patient, a special tribunal has the same jurisdiction and powers as the regional tribunal for the region in which the hospital in which the patient is detained. (8) A panel member appointed under subsection (3) holds office on the terms, and is entitled to be paid the remuneration and allowances, decided by the Governor in Council.

s 15 17 s 15 Mental Health Act 1974 (9) Section 14(8) to (8C) and (11) apply to a special tribunal and the members of a special tribunal. 15 Powers and proceedings of and appeals from tribunal (1) Except where this Act otherwise prescribes, this section does not apply in relation to applications or references in respect of patients to whom part 4 applies. (1AA) A tribunal shall discharge its functions, exercise its powers and perform its duties conferred or imposed on it by part 4 in accordance with that part. (1A) An application shall not be made to a tribunal by or in respect of a patient save as prescribed. (2) A prescribed application shall be made by notice in writing addressed to the tribunal for the region in which the hospital in which the patient is detained is situated or in which the patient, if the patient is not an in-patient, is residing, and subject thereto shall be made as prescribed. (3) Where a prescribed application may be made within a specified period, not more than 1 such application shall be made within that period. (4) Nothing in this section excludes or diminishes the power of the tribunal to make or cause to be made any examination of or inquiry in relation to a patient or to make any recommendation it considers necessary or desirable for the patient’s welfare or the protection of other persons. (5) The case of any patient liable to be detained under this Act may at any time be referred to a tribunal by the Minister or the director. (6) Where an application has been made pursuant to this Act to a tribunal by or in respect of a patient who is liable to be detained under part 3, division 2, the tribunal— (a) if it is satisfied that the patient is not suffering from mental illness of a nature or to a degree that warrants the patient’s detention in a hospital and does not need to be detained in the interests of the patient’s own welfare or with a view to the protection of other persons—may order the director to discharge the patient; or (b) if it is satisfied that transfer or absence on leave of the patient would be in the interests of the patient and would not be detrimental to other persons—may order the director to make

s 15 18 s 15 Mental Health Act 1974 appropriate arrangements for the transfer or leave of absence of the patient as the tribunal may specify; or (c) if it is satisfied as to any other matter that appears to it to be relevant to the application—may make such recommendations to the director if it thinks fit; or (d) may refuse the application. (6AA) It is competent to a tribunal to exercise in respect of any application to it 2 or more of the powers conferred on it by subsection (6) that are not inconsistent. (6AB) Every order and recommendation of a tribunal made pursuant to subsection (6) shall set out the matter or matters of which the tribunal is satisfied and by reason of which it has made the order or recommendation. (6A) The provisions of subsections (6) to (6AB) apply in relation to an application made by the Minister or the director under subsection (5) except that where the application has been made by the Minister any order or recommendation made by the tribunal shall be directed to the Minister to be by the Minister relayed to the director. (7) With respect to any application, reference, examination or inquiry to or by a tribunal under this Act, the tribunal may admit, and proceed and recommend upon, such information or evidence as it thinks fit, whether the same is such as the law would require or admit in other cases or not. (8) For the purpose of assisting an applicant in such manner as the tribunal may determine there may be present during a hearing of an application any of the following persons— (a) an authorised person; (b) the patient’s nearest relative or other relative determined by the tribunal; (c) counsel or solicitor providing legal representation determined by the tribunal to be warranted; (d) any other person determined by the tribunal. (9) Where the tribunal has made an order under subsection (6) then, unless the director is notified that an application has been instituted to the Mental Health Tribunal under subsection (10) for the setting aside of the order, the director shall, within 7 days after receipt by the director of the order or such shorter period as is practicable, either— (a) comply with the order; or

s 15 19 s 15 Mental Health Act 1974 (b) subject to the director first obtaining the Minister’s approval in writing, make application to the Mental Health Tribunal for the setting aside of the order. (9A) Where the director has made an application under subsection (9) the order of the tribunal shall not operate to require the discharge of the patient pending the determination of the application by the Mental Health Tribunal but the director is not thereby precluded from directing the discharge of the patient at any time. (9B) Upon application made to it by the director the Mental Health Tribunal may extend for such time as it thinks fit the period of 7 days within which the director may make application to it to comply with subsection (9) and if such an extension is granted this subsection shall be read and construed as if the reference to 7 days in subsection (9) were a reference to that period as so extended. (10) Where the tribunal has refused an application made to it under this section or upon such an application has made an order under subsection (6)(a) an application to the Mental Health Tribunal for the setting aside of the refusal or the order may be made by any of the following persons— (a) the patient; (b) an authorised person; (c) the patient’s nearest relative; (d) a person who made on behalf of the patient the application to the tribunal; (e) any other person, by leave of the Mental Health Tribunal; and such application shall be made— (f) in the case of the tribunal’s refusal—within 7 days after the receipt by the person who proposes to make the application of notification in the prescribed form of the refusal; or (g) in the case of the tribunal’s order—at any time before the patient is discharged as a result of the order. (10A) Notification of the making of an application under this subsection shall be given, forthwith upon its making, to the director and if before the director is so notified the director has directed the discharge of the patient but the discharge has not been effected at the time of notification the application shall have the effect of staying the director’s direction until the application is disposed of or struck out by the Mental Health Tribunal.

s 15A 20 Mental Health Act 1974 s 15A (11) The following provisions of this subsection shall apply with respect to the making of an application under subsection (9) or (10) and with respect to an application duly made thereunder— (a) the application shall be made in accordance with the rules of practice of the Mental Health Tribunal or, in the absence of such a rule, the directions of the judge constituting that tribunal; (b) the application shall set out with sufficient particularity the grounds on which the setting aside of the order of the tribunal is sought; (c) upon the making of the application a copy of it shall be given to the secretary to the tribunal to whose order it relates and to the person who made the application to the tribunal in the first instance; (d) upon receipt of a copy of the application made the secretary to the tribunal shall furnish to the Mental Health Tribunal in accordance with its rules of practice (if any) originals of any evidence given and transcripts of any evidence and notes taken in the proceedings before the tribunal, or true copies thereof certified as such by the secretary, as well as certified true copies of any resolution, direction, decision or other writing of or in possession of the tribunal relevant to the matter of the application; (e) the Mental Health Tribunal may make such determination and order upon the application as it thinks fit and its determination and order shall be final and binding on the director, the tribunal and all other persons concerned; (f) the Mental Health Tribunal has and may exercise with respect to the application, with such adaptations thereof as may be necessary, the powers conferred on it by section 70. 15A Distribution of tribunals’ findings etc. A Patient Review Tribunal shall provide a copy of every order (other than a direction for examination of a patient), determination, finding, report and recommendation made by it to— (a) the patient concerned; and (b) the applicant to the tribunal, if the applicant is not the patient; and

s 16 21 s 16 Mental Health Act 1974 (c) the hospital administrator of the hospital in which the patient is; and (d) the director; and (e) any other persons prescribed. 16 Psychiatric hospitals, training centres and other places (1) The Governor in Council may, by regulation, establish psychiatric hospitals, training centres, security patients’ hospitals and such other places as the Governor in Council thinks fit for the purposes of this Act. (3A) Subject to the Minister for the time being administering the Family Services Act 1987 and the chief executive of the department within which that Act is administered, the Director of Intellectual Handicap Services is charged with the administration of training centres conducted as a service of that department. (4) The Governor in Council may, by regulation, declare that— (a) any psychiatric hospital or part of any psychiatric hospital; (b) any training centre or part of any training centre; (c) any security patients’ hospital; (d) any other place established under this section for the purposes of this Act or part of any such place; shall cease to be a psychiatric hospital, training centre, security patients’ hospital or other place as aforesaid as the case may be in respect of the whole thereof or the part thereof in question, and may at any time vary or revoke any such declaration. (5) Every such declaration shall have effect according to its tenor.

s 17 22 s 18 Mental Health Act 1974 PART 3—ADMISSION AND DETENTION OF PATIENTS GENERALLY, AND REMOVALS TO PLACES OF SAFETY Division 1—Informal admissions 17 Informal admission of patients (1) Nothing in this Act shall be construed as preventing a patient who is in need of treatment for mental illness— (a) from being admitted to any hospital other than a security patients’ hospital in pursuance of arrangements made in that behalf and without any application, order or direction rendering the patient liable to be detained under this Act; or (b) where the patient was liable to be detained under this Act but has ceased to be so liable—from remaining in any hospital other than a security patients’ hospital in pursuance of arrangements made in that behalf. (1A) Unless otherwise indicated in this Act, a hospital administrator may refuse to make arrangements to admit a patient to, or otherwise to have or keep a patient in, a hospital after the patient has been examined and the patient’s mental condition has been assessed by a medical practitioner and, where the hospital administrator thinks that the patient would benefit from treatment at any other place, after the patient has been appropriately referred to that place. (2) In the case of a patient who has attained the age of 16 years arrangements referred to in subsection (1) may be made, carried out or determined notwithstanding any right to custody or control of that patient vested in any person. Division 2—Regulated admissions 18 Application for admission (1) A patient may be admitted to a hospital other than a security patients’ hospital for treatment of mental illness in pursuance of an application (an

s 19 23 s 19 Mental Health Act 1974 “application for admission” ) made by a relative of the patient or by an authorised person in accordance with the provisions of this section. (2) An application for admission may be made in respect of a patient on the grounds— (a) that the patient is suffering from mental illness of a nature or to a degree that warrants the patient’s detention in a hospital; and (b) that the patient ought to be so detained in the interests of the patient’s own welfare or with a view to the protection of other persons. (3) An application for admission shall be supported by the written recommendation in the prescribed form of a medical practitioner. (4) A patient shall not be admitted under this section to a public hospital as other than a public patient as so classified under the regulations made pursuant to the Health Services Act 1991 without the consent of the hospital administrator. 19 Applications in respect of patients already in hospital (1) An application for admission of a patient to a hospital may be made under this division notwithstanding that the patient is already an in-patient in that hospital, not being liable to be detained in pursuance of an application under this division; and where an application is so made the patient shall be regarded for the purposes of this Act as having been admitted to the hospital at the time when that application was received by the hospital administrator. (2) If in the case of a patient who is an in-patient in a hospital, not being a person liable to be detained therein under this Act, it appears to the medical practitioner in charge of the treatment of that patient that an application ought to be made under this division for the admission of the patient to a hospital, the medical practitioner may certify to that effect in the prescribed form and forthwith furnish the certificate to the hospital administrator and in any such case the patient may be detained in the hospital pursuant to that certificate for a period not exceeding 24 hours from the time the certificate is signed by the medical practitioner. (3) A patient shall not be detained by virtue of a report furnished under subsection (2) if at any time during the 24 hours preceding the furnishing of such report the patient has been liable to detention by virtue of a previous report furnished under that subsection.

s 20 24 s 20 Mental Health Act 1974 20 Effect of application for admission (1) An application for the admission of a patient to a hospital under this division together with the medical recommendation by which it is supported, duly completed in accordance with the provisions of this Act, shall be lawful authority for an authorised person to take the patient and convey the patient to hospital at any time— (a) within 14 days from the day on which the patient was last examined by a medical practitioner before giving a medical recommendation for the purposes of the application; and (b) within 7 days from the day on which the medical recommendation was given for the purposes of the application. (2) Where a medical practitioner who completes a medical recommendation in accordance with the provisions of this Act is of the opinion that the assistance of a police officer is necessary in taking the patient the subject of the medical recommendation, and conveying the patient to the hospital, the medical practitioner may certify as to the medical practitioner’s opinion by endorsement on the medical recommendation to that effect. (2A) Any police officer to whose notice any such endorsement as aforesaid is brought may as soon as practicable take the patient and convey the patient or assist in taking the patient and conveying the patient to the hospital or make or cause to be made arrangements for some other police officer to take the patient and convey the patient or assist in taking the patient and conveying the patient to the hospital. (2B) Any police officer who is taking a patient and conveying the patient to hospital or is assisting therein shall be accompanied by an authorised person. (3) It is lawful for any person acting in accordance with any authority vested in the person under or pursuant to this section— (a) to use such force as may be reasonably necessary in taking the patient the subject of the medical recommendation and conveying the patient to the hospital or in assisting in taking the patient and conveying the patient to the hospital; (b) to enter into or upon and search any premises in or upon which the patient is or is reasonably believed to be and to use such force as may be reasonably necessary in so doing.

s 21 25 s 21 Mental Health Act 1974 21 Duration of authority for detention (1) A patient admitted to a hospital in pursuance of an application for admission may be detained there for a period not exceeding 3 days from the day of admission, and shall not be detained thereafter in pursuance of that application unless, before the expiration of that period, a second recommendation in the prescribed form, given by a medical practitioner who has examined the patient subsequent to such admission and who is not the medical practitioner who gave the recommendation under section 18(3), has been received by the hospital administrator. (2) Where a second recommendation has been so received, the patient, unless it is otherwise provided in this Act, may be detained in a hospital for a period not exceeding 21 days from the day of the patient’s admission, and shall not be detained thereafter in respect of the application in question unless authority for the patient’s detention is renewed in accordance with this section. (3) Authority for the detention of a patient may, unless the patient has previously been discharged, be renewed under this section— (a) from the expiration of the period referred to in subsection (2)—for a further period not exceeding 3 months; (b) from the expiration of any period of renewal under paragraph (a)—for a further period not exceeding 12 months from the day of the patient’s admission; and thereafter may be renewed from time to time for periods each of which shall not exceed 12 months. (4) On or before the day on which a patient who is liable to be detained in a hospital in pursuance of subsection (2) would under this section cease to be so liable in the absence of renewal of the authority for the patient’s detention, or within the period of 1 month ending on the day on which any period of renewal under subsection (3) would expire, as the case may be, the hospital administrator shall cause the patient to be examined by a psychiatrist, and if it appears to the psychiatrist that it is necessary in the interests of the patient’s welfare or for the protection of other persons that the patient should continue to be liable to be detained, the psychiatrist shall furnish to the hospital administrator a report to that effect in the prescribed form. (5) The furnishing to the hospital administrator of the report pursuant to subsection (4) constitutes the renewal of the authority for the detention in a hospital of the patient for the period pursuant to subsection (3).

s 22 26 s 23 Mental Health Act 1974 (6) Where the authority for the detention of the patient has been renewed pursuant to subsections (4) and (5), the hospital administrator— (a) shall forthwith make an application to the tribunal to review the detention; and (b) shall cause the patient, if the patient has attained the age of 16 years, and all other persons prescribed by the regulations for the purpose to be informed of such renewal and that an application may be made to the tribunal by or on behalf of the patient pursuant to this Act. (6A) An application for the patient’s discharge may be made to a tribunal within the period for which the authority for the patient’s detention is renewed pursuant to subsections (4) and (5) by the patient or for or on behalf of the patient by any authorised person or relative or by any other person by leave of the tribunal, provided that in the case of an application by a person who is not the nearest relative, the nearest relative shall be informed of the time and place of the hearing and shall be allowed to appear before the tribunal if the nearest relative so desires. (7) In the case of a patient who is absent from the hospital on leave in accordance with the provisions relating to leave of absence of patients contained in this Act at the time when the authority for the patient’s detention would expire, the examination referred to in subsection (4) may, if the hospital administrator thinks fit, be made by a medical practitioner who is not a psychiatrist, and any report furnished to the hospital administrator relative to such examination shall have the same effect as if the examination had been made and the report had been furnished by a psychiatrist. 22 Admission applications generally A person shall not make an application for the admission of a patient unless— (a) the person is of or above the age of 18 years; and (b) the person has personally seen the patient within the period of 7 days ending with the date of the application. 23 Medical recommendations generally (1) Unless otherwise provided by this Act, the medical recommendation required for the purposes of an application for admission of a patient shall

s 23 27 s 23 Mental Health Act 1974 be made by a medical practitioner who has personally examined the patient. (2) Unless otherwise provided by this Act, a medical recommendation shall cease to have effect, for the purposes of an application for admission, on the expiration of 7 days from the day of the examination to which it relates. (3) A medical recommendation for the purposes of an application for the admission of a patient under this Act or for the purposes of section 21(1) shall not be given by any of the following persons, that is to say— (a) the applicant; (b) a partner of the applicant; (c) a person employed as an assistant by the applicant; (d) a person who receives or has an interest in the receipt of any payments made on account of the maintenance of the patient; or (e) the husband, wife, father, father-in-law, mother, mother-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister or sister-in-law— (i) of the patient; or (ii) of any person referred to in paragraphs (a) to (d); or (iii) in the case of a second medical recommendation given for the purposes of section 21(1)—of the medical practitioner by whom the medical recommendation has been given under section 18(3). (4) The following rules shall be observed in making and signing medical recommendations for the purposes of this Act— (a) the medical recommendation shall be in the prescribed form; (b) the medical practitioner making and signing the medical recommendation shall state the medical practitioner’s qualifications in the medical recommendation; (c) the medical practitioner shall state the facts indicating mental illness observed by the medical practitioner at the examination to which the recommendation refers and such other information as may be prescribed; (d) the medical recommendation shall state the day or the last day on which the patient was examined;

s 24 28 s 24 Mental Health Act 1974 (e) every medical recommendation shall contain a statement that the medical practitioner making and signing the same is not prohibited by this Act from giving such medical recommendation. (5) A medical recommendation shall not be sufficient for the purposes of this Act if it purports to be founded only upon facts communicated by others. 24 Incorrect or defective application (1) As soon as is reasonably practicable within the period of 24 hours after the admission of a patient to a hospital as provided in this division, the hospital administrator shall satisfy himself or herself that the application for the patient’s admission is sufficient to justify the detention of the patient in hospital in that such application and the medical recommendation by which it is supported comply with this Act in all respects. (2) If the hospital administrator is not so satisfied— (a) the hospital administrator shall return the application to the applicant; and (b) the hospital administrator shall return the medical recommendation to the medical practitioner who has made and signed it; and (c) the hospital administrator shall notify the medical practitioner in charge of the treatment of the patient. (3) On receipt of such notification that medical practitioner shall— (a) if the medical practitioner considers the patient should continue to be detained because of mental illness—furnish to the hospital administrator a report in writing to that effect as provided in section 19(2) and the furnishing of such report shall have the same effect as the furnishing of a report under that subsection; or (b) if the medical practitioner considers the patient should not be liable to be detained because of mental illness, furnish to the hospital administrator a report in writing to that effect whereupon the patient shall be discharged. (4) Nothing in this section shall be construed so as to deprive any person of any rights or protection conferred by this Act or by any other Act or law.

s 25 29 s 25 Mental Health Act 1974 Division 3—Removals to places of safety 25 Warrant to remove to place of safety (1) If it appears to a justice, on information by any person on oath, in the prescribed form, that there is reasonable cause to suspect that a person is mentally ill and that in the interests of that person or for the protection of other persons it is necessary to do so, the justice may issue a warrant in the prescribed form and as hereinafter provided. (1A) A justice who issues a warrant as provided in subsection (1) shall forthwith forward a copy of the warrant and a copy of the sworn information relied on to the clerk of the court in the Magistrates Courts district in which the patient then is or, where in respect of any such district there is more than 1 such clerk, to 1 of those clerks. (2) A warrant issued under this section shall authorise and require the police officer to whom it is directed or any other police officer to remove or cause to be removed, within the period of 14 days after the date of the warrant but as soon as practicable, the person in respect of whom the warrant is issued to a place of safety. (3) In the execution of a warrant issued under this section the police officer by whom it is to be executed— (a) shall be accompanied by a medical practitioner and a designated authorised person; and (b) shall be provided by the clerk of the court by whom the sworn information relied on to support the warrant is held with a copy of the information contained in a sealed envelope; and (c) shall make the copy information referred to in paragraph (b) available upon request to the medical practitioner and the designated authorised person accompanying the police officer for their inspection; and (d) shall deliver the copy information referred to in paragraph (b) to the hospital administrator or person in charge of the place of safety to which the police officer has removed the person in respect of whom the warrant was issued. (3A) If the medical practitioner or the designated authorised person accompanying the police officer inform that officer in writing— (a) that, in his or her opinion, the person in respect of whom the warrant is issued is not mentally ill; or

s 26 30 s 26 Mental Health Act 1974 (b) that, in his or her opinion, it is not necessary that the person in respect of whom the warrant is issued should be removed to a place of safety, in that person’s own interests or for the protection of others; that police officer shall not execute the warrant but shall as soon as practicable thereafter make a report as to the issue of the warrant and as to the reasons for its not having been executed and shall cause the report to be forwarded to the director, who shall notify the justice who issued the warrant and the clerk of the court to whom a copy of the warrant was forwarded pursuant to subsection (1). (4) For the purpose of enabling the police officer to whom the warrant is directed or any other police officer to act in accordance with the provisions of subsection (2), the warrant shall authorise the officer so acting to do or to cause to be done all or any of the following things— (a) to execute the warrant at any time whether by day or by night; (b) to call to the officer’s assistance such police officers, medical practitioners or other persons as the officer thinks fit; (c) to apprehend, whether in a place to which the public has access or not, the person in respect of whom the warrant is issued; (d) to enter, re-enter and search, if need be by force, the premises (if any) specified in the warrant and any other premises in which the police officer reasonably believes the person in respect of whom the warrant is issued will be found. (5) It shall not be necessary in any information or warrant under this section to name the person the subject thereof provided that the person is otherwise sufficiently identified in such document. 26 Removal without warrant to place of safety (1) Subject to subsection (2), a police officer may, without a warrant, remove from any place to a place of safety any person whom that officer believes to be mentally ill and a danger to himself, herself or other persons and in need of immediate treatment or control. (1A) A police officer who removes a person to a place of safety pursuant to subsection (1) shall forthwith complete and furnish to the hospital administrator or person in charge of the place of safety an authority in the prescribed form for the detention at that place of that person.

s 27 31 s 27 Mental Health Act 1974 (2) A police officer may remove a person from any place that is not a public place to a place of safety without a warrant in pursuance of subsection (1) only if— (a) the officer reasonably believes that the obtaining of a warrant under section 25 would involve unreasonable delay, having regard to the circumstances of the case; and (b) the officer obtains the consent of the occupier or person apparently in charge or control of that place or, where the place is the subject of more than 1 occupancy, the part of the place in question. (2A) However, such consent shall not be necessary where such occupier or person apparently in charge or control is the person the subject of the removal or where the occupier or person apparently in charge or control does not appear to the police officer to be readily identifiable or available. (3) For the purposes of this section— “public place” includes every road, airport and aerodrome and also every place of public resort open to or used by the public as of right, and also includes— (a) any vessel, vehicle, aircraft, train, bus, building, room, licensed premises, field, ground, park, reserve, garden, wharf, pier, jetty, bridge, platform, market, passage, or other place for the time being used for a public purpose or open to access by the public by the express or tacit consent or sufferance of the owner, and whether the same is or is not at all times so open; and (b) any vacant land or any premises at any material time unoccupied; and (c) any place declared by regulation to be a public place for the purposes of this section. 27 Procedure on and following removal to place of safety (1) A person removed to a place of safety under this division shall be detained there or in another place of safety for the purpose of being examined or further examined as soon as practicable by a medical practitioner and being interviewed by an authorised person with a view to the making of an application in respect of the person under division 2 or of other arrangements for the person’s treatment.

s 27 32 s 27 Mental Health Act 1974 (1A) Subsection (1) does not authorise the detention of any person in any place of safety for a period exceeding 3 days from the day on which the person was first removed to a place of safety, whether or not the person has been examined or interviewed as referred to in subsection (1). (2) A person removed to a place of safety pursuant to the provisions of this division shall be removed to a hospital in preference to any other place of safety unless a hospital is not readily accessible. (2A) A hospital shall be deemed to be not readily accessible where— (a) being a private hospital—the hospital administrator of it is not willing to receive the patient; or (b) being any other hospital—the patient is not able to be cared for in it. (3) Subject to the provisions of subsections (1) to (2), a person conveyed to a place of safety pursuant to this division may, during the period referred to in subsection (1A), be conveyed from 1 place of safety to another, provided that such person shall not be detained in places of safety, if more than 1, for a period, in the aggregate, in excess of the period so referred to. (3A) The power conferred by subsection (3) to convey a person from 1 place of safety to another may be exercised by— (a) the police officer who, pursuant to this division, conveyed that person to the place of safety from which the person may be conveyed under subsection (3); or (b) any other police officer; or (c) any other person prescribed. (4) Where a medical practitioner, upon examining a person detained in a place of safety under this division, is of the opinion that the person is not mentally ill or does not need to be detained on the ground of mental illness the medical practitioner shall certify accordingly in the prescribed form to the hospital administrator, manager or other person in charge of the place of safety whereupon the authority conferred by this section to detain therein the person examined shall terminate. (5) The hospital administrator, manager or other person in charge of the place of safety shall as soon as practicable furnish to the director a report of the circumstances of the case.

s 28 33 s 28B Mental Health Act 1974 PART 4—PATIENTS CONCERNED IN CRIMINAL AND LIKE PROCEEDINGS 28 Construction of part with the Criminal Code Unless otherwise indicated or provided, this part shall be read and construed with and as being in addition to and in aid of and not in substitution for or in derogation from the provisions of the Criminal Code. 28A Interpretation In this part— “chief executive (justice)” means the chief executive of the department in which the Criminal Code is administered. “diminished responsibility” means that state of abnormality of mind described in section 304A of the Criminal Code. 2 “fit for trial” means, in relation to a person, fit to plead at the person’s trial and to instruct counsel and to endure the person’s trial, with serious adverse consequences to the person’s mental condition being unlikely. “unsoundness of mind” means that state of mental disease or natural mental infirmity described in section 27 of the Criminal Code, 3 but 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. 28B Mental Health Tribunal (1) There shall be constituted a tribunal to be called the Mental Health Tribunal for the purpose of dealing with applications, references and appeals made to it under this Act. (2) The Mental Health Tribunal shall consist of a judge of the Supreme Court who in the exercise of the tribunal’s jurisdiction shall be assisted by 2 psychiatrists. (2A) The 2 psychiatrists shall not be a constituent part of the tribunal. 2 Criminal Code, section 304A (Diminished responsibility) 3 Criminal Code, section 27 (Insanity)

s 28B 34 Mental Health Act 1974 s 28B (3) The judge and the psychiatrists are to be appointed by the Governor in Council by gazette notice. (4) The term of every appointment made to or in respect of the Mental Health Tribunal shall commence on the date specified for the purpose in the gazette notice by which the appointment is made and, except where the appointment is to a casual vacancy, shall be for a period of 3 years. (4A) Unless the judge’s office is sooner vacated as prescribed the judge who constitutes the tribunal and each of the psychiatrists who assist the judge shall continue to hold office until the person’s successor assumes office in the person’s place. (5) The office of a person constituting or assisting the Mental Health Tribunal shall become vacant if— (a) being the office of the judge who constitutes the tribunal—the appointee— (i) resigns office by writing given to the Minister; or (ii) ceases to be a judge of the Supreme Court; or (b) being the office of a person who assists the tribunal—the appointee— (i) dies; (ii) resigns office by writing given to the Minister; (iii) is removed from office by the Governor in Council. (6) If a casual vacancy occurs in the office of a person constituting or assisting the Mental Health Tribunal during the currency of the person’s term of appointment another person who is eligible for appointment shall be appointed to fill that vacancy. (6A) The appointment of a person appointed to fill a casual vacancy shall continue for as long as the appointment of the person’s predecessor in office would have continued had the casual vacancy not occurred. (7) At any time— (a) the Governor in Council may, by gazette notice, appoint a judge of the Supreme Court to constitute the Mental Health Tribunal during the absence through illness or other cause of the judge who holds the appointment made under subsection (4); and (b) the Minister may, by instrument in writing, appoint a psychiatrist to act in place of a psychiatrist who holds an appointment made

s 28C 35 Mental Health Act 1974 s 28C under subsection (4) during the psychiatrist’s absence through illness or other cause. (8) A psychiatrist who holds an appointment to assist the Mental Health Tribunal, whether under subsection (4) or (7) shall receive such remuneration and allowances as are from time to time approved by the Governor in Council. 28C Jurisdiction and proceedings of tribunal (1) Jurisdiction is hereby conferred on the Mental Health Tribunal to hear and determine all proceedings duly instituted before it under this Act and to make therein such orders as its deems necessary and appropriate to give effect to its findings and such orders as it is authorised by this Act to make. (1A) The jurisdiction of the Mental Health Tribunal does not include jurisdiction to award costs. (2) Proceedings shall be instituted and conducted before the Mental Health Tribunal in accordance with rules of practice made for the tribunal or, in so far as there are no such rules or no applicable such rule, in accordance with directions of the judge constituting the tribunal given generally or in a particular case. (3) The judge constituting the Mental Health Tribunal may submit to the Minister such rules as the judge deems necessary or convenient for regulating the procedure and practice of the tribunal and upon being sanctioned by the Governor in Council by regulation those rules shall become and be the rules of practice of the tribunal, which— (a) may be amended or rescinded in like manner; and (b) may provide for the giving of directions by the judge constituting the tribunal in any case not covered by a rule of practice. (4) For the purpose of exercising its jurisdiction the Mental Health Tribunal shall be deemed to be a commission of inquiry to which the Commissions of Inquiry Act 1950 apply and the judge constituting the tribunal shall be deemed to be the chairperson of the commission. (5) Any person concerned in proceedings before the Mental Health Tribunal may appear in person and shall be entitled to appear by the person’s counsel or solicitor or by the person’s agent authorised by the person in writing.

s 28D 36 Mental Health Act 1974 s 28E (6) If it appears to the judge who constitutes the Mental Health Tribunal that in proceedings before the tribunal the person in respect of whom the proceedings have been instituted cannot be present or that it is not expedient that the person should be present the judge may order that the proceedings be held in that person’s absence whereupon the proceedings may lawfully proceed in the person’s absence and the decision therein shall be as binding on that person and all other persons concerned as if that person had been present throughout the proceedings. 28D References to tribunal (1) Where there is reasonable cause to believe that a person alleged to have committed an indictable offence is mentally ill or was mentally ill at the time the alleged offence was committed the matter of the person’s mental condition may be referred to the Mental Health Tribunal by— (a) a crown law officer; or (b) the person concerned or the person’s legal adviser or the person’s nearest relative; or (c) where the person has been admitted to hospital under this Act for treatment of mental illness—the director; for its consideration and determination in accordance with this part. (2) Without limiting the expression “reasonable cause” in subsection (1) knowledge on the part of a crown law officer that an accused person may raise at the person’s trial the defence of insanity or diminished responsibility shall be reasonable cause for the purposes of that subsection. 28E Examinations upon tribunal’s order (1) Where a matter has been referred to the Mental Health Tribunal under this part the tribunal may order to be made such psychiatric, medical and other examinations of the person in respect of whom the reference is made as it thinks fit for the purpose of determining— (a) the mental condition of the person at the time the alleged offence was committed; and (b) the mental condition of the person at the time the reference is under its consideration.

s 28E 37 Mental Health Act 1974 s 28E (1A) The order of the tribunal shall be lawful authority for making the examinations ordered and for the use of such force as is necessary for the purpose. (2) Unless the Mental Health Tribunal otherwise orders, a copy of each report relating to an examination made pursuant to the order of the tribunal and a copy of each other report, relevant to the mental condition of the person in respect of whom reference to the tribunal is made, that is in the possession of any person concerned in the reference shall be given to each other person concerned in the reference. (2A) The tribunal shall not make an order contrary to the requirements of subsection (2) upon the ground that the giving of a report in compliance with the subsection would disclose matter detrimental to the case of the person in respect of whom the reference to the tribunal is made. (3) A crown law officer shall be deemed to be a person concerned in every reference made to the Mental Health Tribunal under this part, by whomsoever made. (4) Evidence compulsorily obtained pursuant to an order of the Mental Health Tribunal or by reason of subsection (2) shall be admissible in any subsequent trial of the person to whom it relates for the alleged offence on account of which the reference to the tribunal was made only— (a) for the purpose of determining whether— (i) the person is wanting of understanding, for the purpose of the application of section 613 of the Criminal Code; or (ii) the person is not of sound mind, for the purpose of the application of section 645 of the Criminal Code; or (iii) the person was suffering from unsoundness of mind or diminished responsibility, at the time the alleged offence was committed; or (iv) a power conferred by section 29 on a court should be exercised; or (v) a power conferred by section 43E on a court should be exercised; or (b) for the purpose of sentencing; and for no other purpose.

s 29 38 s 29 Mental Health Act 1974 29 Entry of not guilty plea by court order where accused mentally ill (1) If at the trial of a person charged with an indictable offence alleged to have been committed either before or after the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 the person pleads guilty and it is alleged or appears— (a) that the person is mentally ill; or (b) that the person was or may have been mentally ill at the time the alleged offence was committed; the court may order a plea of not guilty to be entered on the person’s behalf and, if it does so, shall adjourn the trial to a date to be fixed and remand the accused accordingly and order the matter of the accused’s mental condition to be referred to the Mental Health Tribunal. (2) If on the appearance for sentence of a person charged with an indictable offence alleged to have been committed either before or after the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 who has pleaded guilty before justices and has been committed by them for sentence it is alleged or appears— (a) that the person is mentally ill; or (b) that the person was or may have been mentally ill at the time the alleged offence was committed; the court may order a plea of not guilty to be entered on the person’s behalf and, if it does so, shall adjourn the trial to a date to be fixed and remand the accused accordingly and order the matter of the accused’s mental condition to be referred to the Mental Health Tribunal. (3) Where a court remands an accused under this section by reason that it is alleged or it appears that the accused is at the time of the remand mentally ill and it appears to the court that the accused needs to be detained on account of mental illness in the interests of the accused’s own welfare or with a view to the protection of other persons, the court shall order that the accused be detained in a security patients’ hospital until the Mental Health Tribunal determines otherwise. (4) Where a court remands an accused under this section by reason that it is alleged or it appears that the accused was or may have been mentally ill at the time the alleged offence was committed or that the accused is mentally ill and it does not appear to the court that the accused needs to be detained as aforesaid, the court— (a) may grant the accused bail; or

s 29A 39 Mental Health Act 1974 s 29A (b) may order that the accused be detained in prison or in a security patients’ hospital until the Mental Health Tribunal determines otherwise. 29A Persons charged with simple offences mentally ill (1) In this section— “complaint” includes information and charge. “simple offence” means an offence (indictable or not) punishable on summary conviction before justices by fine, imprisonment or otherwise and includes a regulatory offence. (2) Where a complaint for a simple offence is before justices and they are satisfied on the evidence of 2 medical practitioners that the defendant— (a) is suffering from mental illness of a nature or to a degree that warrants the defendant’s detention in a hospital; and (b) ought to be so detained in the interests of the defendant’s own welfare or with a view to the protection of other persons; they shall, subject to subsection (3), order that the defendant be admitted to a hospital other than a security patients’ hospital and by virtue of that order the matter of complaint shall be deemed to have been adjourned to a date to be fixed and the defendant shall be deemed to have been remanded accordingly. (3) Justices shall not make an order such as is referred to in subsection (2) in the case of a defendant charged with an indictable offence punishable on summary conviction if they are of opinion that the charge is a fit subject for prosecution upon indictment. (3A) Justices may have regard to such material as they consider relevant to the question whether the charge is a fit subject for prosecution upon indictment. (4) An order such as is referred to in subsection (2) is lawful authority— (a) for any police officer or other person named in the order for the purpose to convey the defendant in respect of whom the order was made to the hospital specified in the order; and (b) for the hospital administrator to admit the patient for treatment. (4A) The patient shall be deemed to have been admitted to the hospital pursuant to part 3, division 2 and shall be treated as a restricted patient as

s 29A 40 Mental Health Act 1974 s 29A provided by section 50 and, subject to this section, may be detained therein as if the period for the patient’s detention had been renewed for a period of 3 months from the date of the justices’ order. (5) The clerk of the court at the place where an order, such as is referred to in subsection (2), is made shall give notice in the prescribed form of the making of the order to the chief executive (justice) and the director as soon as possible, and in any case within 7 days, after the making of the order. (6) Where a person— (a) after being charged with a simple offence, other than an indictable offence punishable on summary conviction, is admitted to a hospital pursuant to part 3, division 2 or 3 otherwise than under the authority of an order made under subsection (2); or (b) after being admitted to a hospital pursuant to part 3, division 2 or 3 is charged with a simple offence, other than an indictable offence punishable on summary conviction; the director shall, upon being notified thereof, notify the chief executive (justice), who shall thereupon notify the clerk of the court at the place where the matter of complaint is to be heard and, in the case referred to in paragraph (a), the clerk of the court shall notify the complainant. (6A) A patient referred to in subsection (6) shall be treated as a restricted patient as provided by section 50 and, unless the patient’s liability to be detained is extended and renewed in accordance with section 21(2) and (3), the patient shall be liable to be detained for a period of 3 months from the expiration of the period prescribed by section 21(1) for which the patient may be detained (which period of 3 months shall be deemed to be a period of renewal under section 21(3)(a)) and for any further period for which the authority for the patient’s detention may be renewed under section 21(3)(b), unless the patient is sooner discharged as provided by section 50. (7) Upon receipt of notice referred to in subsection (5) or upon being notified as referred to in subsection (6) the director shall arrange for the patient to be examined by a psychiatrist who in making the examination shall have regard to— (a) the patient’s mental condition; and (b) the relationship (if any) between the patient’s mental illness and the alleged offence the subject of the complaint; and

s 29A 41 Mental Health Act 1974 s 29A (c) the likely duration of the patient’s mental illness and the likely outcome of treatment; and (d) any other matter likely to assist the Attorney-General in determining pursuant to this section whether the hearing of the complaint against the patient should proceed; and (e) any other matter prescribed. (8) Within such time or times as are prescribed the psychiatrist shall give to the director a report on the examination of the patient and the director, having regard to the report and to the matter referred to in subsection (7), shall give the director’s report to the Attorney-General and shall furnish to the Attorney-General a copy of the report by the psychiatrist. (9) Upon consideration of the reports referred to in subsection (8) and any other material that the Attorney-General considers relevant the Attorney-General— (a) may direct that the hearing of the complaint not proceed; or (b) if the patient is no longer detained or in the Attorney-General’s opinion should no longer be detained on account of mental illness—may direct that the hearing of the complaint proceed; or (c) may defer a determination for a period not exceeding 3 months. (10) Where the Attorney-General acts pursuant to subsection (9)(c) the matter of the patient’s mental condition shall be referred to a Patient Review Tribunal within the period of deferment. (10A) The tribunal may direct to be made such examinations of the patient as it thinks fit and, upon consideration of all material that it considers relevant, shall give to the Attorney-General its report concerning the mental condition of the patient and shall state whether in its opinion the patient needs to be further detained on account of mental illness and whether the patient is fit for trial. (10B) If the tribunal reports that in its opinion the patient does not need to be further detained on account of mental illness and that the patient is fit for trial, the Attorney-General may, subject to there being no appeal duly instituted to the Mental Health Tribunal against the findings of the tribunal direct that the hearing of the complaint proceed. (10C) If the tribunal reports that in its opinion the patient needs to be further detained on account of mental illness or is not fit for trial the Attorney-General shall forthwith cause— (a) the director; and

s 29A 42 Mental Health Act 1974 s 29A (b) the clerk of the court in whose office the complaint was lodged for hearing; to be notified thereof and the clerk of the court shall forthwith notify all other persons prescribed. (11) Where the Attorney-General directs under subsection (9) or (10B) that the hearing of a complaint proceed— (a) the clerk of the court in whose office the complaint was lodged for hearing shall, in the prescribed form, notify the complainant and all other persons prescribed; and (b) the complainant may cause to be issued and served on the patient in accordance with the Justices Act 1886 a summons, which may be issued by the justice before whom the complaint was laid or by another justice, whether or not a summons had previously been issued on the complaint. (12) If— (a) the Attorney-General directs under subsection (9) that the hearing of a complaint not proceed; or (b) a tribunal reports under subsection (10A) that a patient needs to be further detained on account of mental illness or that the patient is not fit for trial; or (c) within 3 months after the deferment of a determination under subsection (9) neither the Attorney-General has directed as referred to in paragraph (a) nor a tribunal has reported as referred to in paragraph (b); the complaint that has led to the application of the provisions of this section shall be deemed to have been thereby dismissed and the patient shall continue to be liable to be detained as if admitted to hospital pursuant to part 3, division 2 but shall not by reason of subsection (4) be treated as a restricted patient as provided by section 50. (12A) In no case shall a complaint deemed pursuant to subsection (12) to have been dismissed be taken for any purpose to have been heard upon the merits. (13) The provisions of this section shall not be construed to require any complainant to proceed with a matter of complaint or to prevent the complainant from informing the court that the complainant does not intend to offer further evidence.

s 29B 43 Mental Health Act 1974 s 29C (14) Where the hearing of a complaint proceeds in accordance with this section by way of being resumed, any evidence previously given in the hearing shall be disregarded and the justices who hear the complaint shall hear all evidence de novo. 29B Patients under pt 3, div 2 or 3 charged with indictable offences (1) Where a person— (a) after being admitted to a hospital pursuant to part 3, division 2 or 3, is charged with an indictable offence; or (b) after being charged with an indictable offence, is admitted to a hospital pursuant to part 3, division 2 or 3 before the completion of an examination of witnesses in relation to the offence; or (c) after being committed for trial or sentence in respect of an indictable offence, is admitted to a hospital pursuant to part 3, division 2 or 3; the person shall be treated as a restricted patient as provided in section 50. (2) Upon being notified of a circumstance referred to in subsection (1) the director shall notify— (a) the chief executive (justice); and (b) except in a case referred to in subsection (1)(a)—the commissioner of the police service; thereof and the chief executive (justice), upon being so notified, shall notify the clerk of the court at the place where the examination of witnesses in relation to the offence is to be taken or, in the case referred to in subsection (1)(c), shall notify the registrar of the court to which the person has been committed for trial or sentence. 29C Persons charged with indictable offences mentally ill upon examination of witnesses (1) Where justices taking an examination of witnesses in relation to an indictable offence are satisfied on the evidence of 2 medical practitioners at any time during the examination that the person charged with the offence— (a) is suffering from mental illness of a nature or to a degree that warrants the person’s detention in a hospital; and

s 29C 44 Mental Health Act 1974 s 29C (b) ought to be so detained in the interests of the person’s own welfare or with a view to the protection of other persons; they shall— (c) order that the person be admitted to a security patients’ hospital; and (d) upon making that order, adjourn the examination to a date to be fixed and remand the person accordingly, unless they are satisfied that the evidence heard by them before they made that order is sufficient to put the defendant upon trial for the offence charged or any other indictable offence, in which event, regardless of anything said by the defendant in answer to the charge, they shall commit the defendant for trial to a criminal sittings of an appropriate court. (2) Where justices make an order such as is referred to in subsection (1)(c)— (a) no order shall be made in relation to custody or bail; and (b) it shall not be necessary for witnesses examined before the justices to enter into recognisances. (3) An order, such as is referred to in subsection (1)(c), is lawful authority— (a) for any police officer or other person named in the order for the purpose to convey the defendant in respect of whom the order was made to the security patients’ hospital specified in the order; and (b) for the hospital administrator to admit the patient and detain the patient until the patient is otherwise dealt with pursuant to this part. (4) The clerk of the court at the place where an order, such as is referred to in subsection (1)(c), is made shall give notice in the prescribed form of the making of the order to the chief executive (justice), and the director as soon as possible, and in any case within 7 days after the making of the order and shall furnish with the notice a transcript of all oral evidence given before the justices and a copy of any documentary evidence placed before the justices relating to the defendant’s mental condition.

s 30 45 s 30 Mental Health Act 1974 30 Examinations of patients referred to in ss 29B(1) and 29C(4) (1) Upon being notified of a circumstance referred to in section 29B(1) or upon receipt of notice referred to in section 29C(4) the director shall arrange for the patient to be examined by a psychiatrist who in making the examination shall have regard to— (a) the patient’s mental condition; (b) the relationship (if any) between the patient’s mental illness and the alleged offence the subject of the charge and in particular the mental capacity of the patient at the time of the alleged offence, having regard to the provisions of section 27 of the Criminal Code; 4 (c) the likely duration of the mental illness and the likely outcome of treatment; (d) any other matter likely to assist the Mental Health Tribunal in making its determination pursuant to this part; (e) any other matter prescribed. (2) Within such time or times as are prescribed the psychiatrist shall give to the director a report on the examination of the patient and the director, having regard to that report and to the matters referred to in subsection (1), shall give the director’s report to the Attorney-General and shall furnish to the Attorney-General a copy of the report by the psychiatrist. (3) The director’s report to the Attorney-General shall be made within 3 months from the director’s receipt of the notification or notice referred to in subsection (1). (4) Unless the director reports to the Attorney-General that the patient does not need to be detained on account of mental illness, a crown law officer or the director shall refer the matter of the patient’s mental condition to the Mental Health Tribunal. (5) Notwithstanding any provision of this section or the regulations, if the director is at any time satisfied on material available to the director that the patient does not need to be detained on account of mental illness the director shall, forthwith notify the chief executive (justice) accordingly and thereupon the provisions of section 31A shall apply. 4 Criminal Code, section 27 (Insanity)

s 31 46 s 31 Mental Health Act 1974 31 Persons mentally ill while in custody awaiting examination of witnesses (1) A person who has been charged with an indictable offence alleged to have been committed either before or after the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 and who is in custody awaiting the commencement or continuation of an examination of witnesses in relation to that offence may be removed from the person’s place of custody and admitted to a security patients’ hospital for treatment for mental illness, and the person’s admission to the hospital shall be based on an application made in accordance with this section by a person who is an authorised person in respect of that place of custody. (1A) For the purposes of this section an authorised person is— (a) in respect of a place of custody under the management of the chief executive (corrective services)—a person appointed by the chief executive (corrective services) in that behalf; (b) in respect of any other place of custody—the person in charge of that place or such other person as is prescribed in respect of that place. (2) An application referred to in subsection (1) shall be founded on the written recommendation of a medical practitioner, who shall be a Government medical officer or a psychiatrist, which recommendation shall set out the reasons that, in the opinion of the medical practitioner or psychiatrist, the person charged should be admitted to a security patients’ hospital for treatment. (2A) The application and recommendation shall be in accordance with such other conditions and requirements as are prescribed and, where the person in respect of whom the application is made is a prisoner within the meaning of the Corrective Services Act 2000 , the making of the application shall be approved by the chief executive (corrective services). (2B) An application duly made and the recommendation on which it is founded shall together be lawful authority— (a) for any police officer or any corrective services officer (within the meaning of the Corrective Services Act 2000 ) to convey the person in respect of whom the application is made to the security patients’ hospital; and

s 31 47 s 31 Mental Health Act 1974 (b) for the hospital administrator to admit the person to the hospital and detain the person until the person is dealt with otherwise in accordance with this section. (2C) Upon the admission of the person to the security patients’ hospital the hospital administrator shall forthwith notify the director. (3) Within 3 days from the day of a patient’s admission to a security patients’ hospital pursuant to this section the patient shall be examined by a psychiatrist who shall certify to the hospital administrator the psychiatrist’s opinion whether— (a) the patient is suffering from mental illness of a nature or to a degree that warrants the patient’s detention in hospital; and (b) the patient ought to be so detained in the interests of the patient’s own welfare or with a view to the protection of other persons. (4) If the psychiatrist certifies that the patient needs to be so detained the patient shall be detained pursuant to this section but if the psychiatrist certifies that the patient does not need to be so detained— (a) the hospital administrator shall forthwith inform the director and the chief executive (corrective services) and, where the patient was not before admission to the security patients’ hospital a prisoner within the meaning of the Corrective Services Act 2000 , the authorised person in respect of the place of custody from which the patient was admitted; and (b) the chief executive (corrective services) shall cause the patient to be removed from the hospital and, on being removed, the patient shall be deemed to be a prisoner within the meaning of the Corrective Services Act 2000 (whether or not the patient was such a prisoner immediately before the patient’s admission to the security patients’ hospital) and that Act shall apply accordingly. (5) Upon being notified that a person has been admitted to a security patients’ hospital pursuant to this section the director shall notify the chief executive (justice) and the commissioner of the police service and the chief executive (justice) shall thereupon give notice of the admission to the clerk of the court at the place where the examination of witnesses is to commence or continue. (6) A person admitted to a security patients’ hospital pursuant to this section shall be detained therein or in such other hospital as the director directs in writing until the person is otherwise dealt with pursuant to this part.

s 31A 48 Mental Health Act 1974 s 31A (6A) As soon as practicable after being notified that a person has been admitted to a security patients’ hospital pursuant to this section the director shall arrange for the person to be examined by a psychiatrist who in making the examination shall have regard to the matters referred to in section 30(1). (6B) An examination of a patient under subsection (6A) may be conducted in conjunction with the examination of the patient required by subsection (3). (7) Within such time or times as are prescribed the psychiatrist shall give to the director a report on the examination of the patient made under subsection (6A) and the director, having regard to that report and to the matters referred to in section 30(1), shall give the director’s report to the Attorney-General and shall furnish to the Attorney-General a copy of the report by the psychiatrist. (7A) The director’s report to the Attorney-General shall be made within 3 months from the director’s receipt of the notification referred to in subsection (2C). (8) Unless the director reports to the Attorney-General that the patient does not need to be detained on account of mental illness, a crown law officer or the director shall refer the matter of the patient’s mental condition to the Mental Health Tribunal. (9) Notwithstanding any provision of this section or the regulations, if the director is at any time satisfied on material available to the director that the patient does not need to be detained on account of mental illness the director shall forthwith notify the chief executive (justice) accordingly and thereupon the provisions of section 31A shall apply. 31A Action on persons found not to be in need of detention (1) Where— (a) pursuant to any provision of section 30 or 31 the director has reported or notified that the person to whom the report or notification relates does not need to be detained on account of mental illness; or (b) pursuant to section 34(2) the Attorney-General has ordered that proceedings be continued against a person; or (c) pursuant to section 34(5) the Governor in Council has ordered that proceedings be continued against a person;

s 31A 49 Mental Health Act 1974 s 31A then— (d) the chief executive (justice) shall forthwith give notice thereof— (i) where the person has been committed for trial or sentence before a court—to the registrar of the court at the place where proceedings with a view to the trial or sentencing of the person are to be held; and (ii) where the person has not been committed for trial or sentence before a court—to the clerk of the court at the place where an examination of witnesses by justices in respect of the charge against the person is to commence or continue; and (iii) to the commissioner of the police service; and (iv) to any other person prescribed; and (e) if that person has been committed for trial or sentence before a court in connection with the charge against the person—the person shall be brought before the court at the place to which the person has been committed or, with the person’s consent at any other place, as soon as is practicable to be dealt with according to law; and (f) if that person has not been committed for trial or sentence in connection with the charge against the person—the person shall be brought before justices as soon as is practicable and in any case within 7 days from the date of the director’s report or notification or the order of the Attorney-General or Governor in Council and the justices shall— (i) make such order as they think fit and are authorised by the Justices Act 1886 to make; and (ii) remand the person in custody or on bail; and (iii) make such orders as they think fit as to binding of witnesses examined prior to the admission of that person to hospital as referred to in section 29B or 29C; and (iv) make such orders as they think fit with a view to the commencement or continuation of the examination of witnesses; and every such order shall be given effect according to its tenor.

s 31B 50 Mental Health Act 1974 s 33 (2) Any police officer or other person prescribed is authorised to convey a person referred to in subsection (1) who is detained in a hospital from the hospital to appear before a court or justices in accordance with subsection (1). 31B Admission to hospital not to prejudice Where a person has been admitted to hospital as referred to in section 29B or 29C neither the person nor any surety of the person shall suffer any detriment by reason of that person’s failure to appear before justices in respect of the charge against the person if the person’s failure is due to the person’s admission to hospital as aforesaid. 32 Persons mentally ill while in custody after committal for trial or sentence (1) A person who has been committed for trial or sentence upon a charge of an indictable offence and who is in custody pending the person’s appearance at a criminal sittings of the Supreme Court or the District Court in respect of that charge may be removed from the person’s place of custody and admitted to a security patients’ hospital for treatment for mental illness, and the person’s admission to the hospital shall be based on an application made in accordance with section 31 by a person who is an authorised person in respect of that place of custody. (2) The provisions of section 31 apply to and in connection with the admission of a person to a security patients’ hospital pursuant to this section and examinations of and reports on such a person as if the person were of a class of person referred to in section 31(1) except that in the application of section 31(5) the reference therein to the clerk of the court at the place where the examination of witnesses is to commence or continue shall be construed as a reference to the registrar of the court to which the person has been committed for trial or sentence. 33 Procedures of Mental Health Tribunal (1) When the matter of a person’s mental condition has been referred to it the Mental Health Tribunal— (a) shall inquire and determine whether the person was, at the time the alleged offence was committed, suffering from unsoundness of mind;

s 33 51 s 33 Mental Health Act 1974 (b) if the person is alleged to have committed the offence of murder and the Mental Health Tribunal finds that at the time the alleged offence was committed the person was not suffering from unsoundness of mind—shall inquire and determine whether the person was, at the time the alleged offence was committed, suffering from diminished responsibility; (c) if the Mental Health Tribunal finds that the person was not suffering from unsoundness of mind—shall inquire and determine whether the person is fit for trial. (2) If in a reference made to it the Mental Health Tribunal is of the opinion that the facts of or connected with the alleged offence or of the involvement therein of the person in question are so in dispute that it would be unsafe to make a determination such as is referred to in subsection (1)(a) or (b), it shall refrain from making the determination but shall inquire and determine whether the person in question is fit for trial. (3) Where the Mental Health Tribunal— (a) pursuant to subsection (1)— (i) finds that a person alleged to have committed an indictable offence was not suffering from unsoundness of mind at the material time; and (ii) finds that the person is fit for trial; or (b) pursuant to subsection (2), finds that a person alleged to have committed an indictable offence is fit for trial; it shall order that proceedings be continued according to law against the person in respect of the charge. (4) Where the Mental Health Tribunal makes an order referred to in subsection (3) in relation to any person— (a) it shall cause notice thereof to be given to the chief executive (justice) who shall notify— (i) the director; (ii) the commissioner of the police service; (iii) the clerk of the court at the place where an examination of witnesses in relation to the indictable offence with which the person is charged is to be taken or, as the case may be, the registrar of the court to which the person has been committed for trial or sentence;

s 33A 52 Mental Health Act 1974 s 34 (iv) any other person prescribed; and (b) may remand the person in custody or on bail or order that, until the person is brought before a court or justices for continuation of proceedings, the person be detained in a security patients’ hospital or other hospital. (5) An order made by the Mental Health Tribunal as referred to in subsection (4)(b) is lawful authority to all persons concerned to deal with the person to whom the order relates in accordance with the order. (6) Where the Mental Health Tribunal has remanded a person on bail pursuant to subsection (4) the bail shall be deemed to have been granted under the Bail Act 1980 and the provisions of that Act shall apply to and in connection with that grant of bail. 33A Procedure on finding of unsoundness of mind (1) If, under section 33, the Mental Health Tribunal finds that a person charged with an offence was, at the time the alleged offence was committed, suffering from unsoundness of mind, the tribunal must order the person be detained as a restricted patient under this part in a security patients’ hospital or in another hospital. (2) The order is lawful authority to all police officers, employees of the hospital and health service employees, using reasonable force— (a) to take the person to the hospital; and (b) to detain the person under the order. 34 Procedure upon finding of unfit for trial (1) If, pursuant to section 33 the Mental Health Tribunal finds that a person is not fit for trial— (a) it shall order that the person be detained as a restricted patient under this part in a security patients’ hospital or in some other hospital; (b) a Patient Review Tribunal shall review the mental condition of the person in relation to the person’s fitness for trial at least once in every 3 months for a period of 12 months commencing on the day on which the Mental Health Tribunal made its order for the person’s detention;

s 34 53 s 34 Mental Health Act 1974 (c) at the termination of the period of 12 months a Patient Review Tribunal shall determine the likelihood of the person being fit for trial within a reasonable time. (1A) The order of the Mental Health Tribunal made under subsection (1) is lawful authority to all persons concerned to detain the person to whom the order relates in accordance with the order. (2) If, pursuant to subsection (1) a Patient Review Tribunal finds that a person is fit for trial it shall give its report thereon to the Attorney-General who may order that proceedings be continued against the person, and such order shall be complied with. (3) If, pursuant to subsection (1), a Patient Review Tribunal finds that it is unlikely that a person will be fit for trial within a reasonable time it shall give its report thereon to the Attorney-General who shall submit the report together with the Attorney-General’s recommendation as to the continuance or discontinuance of proceedings against the person to the Governor in Council who, having regard to the report, the recommendation and any other material that the Governor in Council considers relevant, may— (a) order that such proceedings be discontinued forthwith; or (b) defer the question of continuance of the proceedings against the person for a period not exceeding 6 months and may, thereafter, defer that question for any period or periods not exceeding 6 months at any time; and an order such as is referred to in paragraph (a) shall be complied with. (4) Where the Governor in Council has deferred the question referred to in subsection (3) a Patient Review Tribunal shall review the mental condition of the patient and shall give its report thereon to the Attorney-General who shall submit the report together with the Attorney-General’s recommendation as to the continuance or discontinuance of proceedings against the person to the Governor in Council prior to the expiration of the period for which the question is deferred. (5) Where the Governor in Council has deferred the question referred to in subsection (3) the Governor in Council may at any time— (a) order that proceedings against the patient in question be discontinued forthwith; or

s 34A 54 Mental Health Act 1974 s 34A (b) if a Patient Review Tribunal has reported that the patient is fit for trial—order that proceedings against the patient be continued; and such order shall be complied with. (6) The exercise of a power or the performance of a duty that is conferred or imposed on the Attorney-General by any provision of this section and that is consequent upon a finding of a Patient Review Tribunal is subject to there being no appeal duly instituted to the Mental Health Tribunal against the finding. 34A Leave of absence (1) This section applies if, under section 33A or 34, the Mental Health Tribunal orders a person’s detention as a restricted patient under this part in a security patients’ hospital or in another hospital. (2) The tribunal may, by order, grant the patient leave of absence from the hospital if it is satisfied the patient can be released having regard to the interests of the patient’s own welfare and the protection of other persons. (3) The leave of absence may be granted on the conditions the tribunal considers appropriate. (4) The conditions must be stated in the order. (5) The leave of absence takes effect immediately on the making of the order and continues in force until— (a) a Patient Review Tribunal reviews the patient’s liability to be detained as a restricted patient under this part; or (b) the leave of absence is revoked, under the conditions stated in the order granting the leave of absence, by— (i) the hospital administrator for the hospital stated in the order or another hospital to which the patient is transferred; or (ii) the designated medical practitioner for the patient; or (iii) the director. (6) At any time after revocation of the leave of absence, the designated medical practitioner for the patient may, by written notice, grant the patient fresh leave of absence if the practitioner is satisfied the patient can be

s 35 55 s 35A Mental Health Act 1974 released having regard to the interests of the patient’s own welfare and the protection of other persons. 5 (7) Leave of absence under subsection (6) must be granted on the same conditions as stated in the Mental Health Tribunal’s order. 35 Consequences of Mental Health Tribunal’s findings or Governor in Council’s order (1) Where pursuant to section 33(1) the Mental Health Tribunal— (a) has found that a person charged with an offence was, at the time the alleged offence was committed, suffering from unsoundness of mind; or (b) has found that a person charged with an offence is not fit for trial; the person to whom the finding relates shall, unless in the case of a finding of unsoundness of mind it is overturned upon an appeal duly instituted under section 43A, be liable to be detained as a restricted patient under this part. (2) Where pursuant to section 34 the Governor in Council has ordered that proceedings against any person be discontinued the person shall be liable to be detained as a restricted patient under this part. (3) If within 3 years after the date on which the Mental Health Tribunal has, pursuant to section 33(1), found that a person charged with an offence is not fit for trial, the Governor in Council has not determined the question of continuance or discontinuance of proceedings against the person, the proceedings shall be and be deemed to be discontinued and further proceedings shall not be taken against the person in respect of the act or omission constituting the offence to which the discontinued proceedings related and the person shall be liable to be detained as a restricted patient under this part. 35A Consequences to proceedings of findings of Mental Health Tribunal Where pursuant to section 33(1) the Mental Health Tribunal has found that a person charged with an offence was, at the time the alleged offence 5 Also, the patient may be released, including on leave of absence, by a tribunal under section 36(b) (Review of patient detained as restricted patient under this part).

s 36 56 s 37 Mental Health Act 1974 was committed, suffering from unsoundness of mind or has found that a person charged with the offence of murder was, at the time the alleged offence was committed, suffering from diminished responsibility, then unless in either case the finding is overturned upon an appeal duly instituted under section 43A and unless the person found to have been suffering from unsoundness of mind takes appropriate action under section 43C to be brought to trial, proceedings against the person— (a) shall, in the case of a finding of unsoundness of mind, be discontinued and further proceedings shall not be taken against the person in respect of the act or omission constituting the offence to which the discontinued proceedings related; or (b) shall, in the case of a finding of diminished responsibility, be discontinued in respect of the offence of murder but may be continued in respect of any other offence constituted by the act or omission to which the proceedings relate. 36 Review of patient detained as restricted patient under this part Except where it is otherwise provided in this part, where a patient is liable to be detained as a restricted patient under this part— (a) the patient’s liability to be detained shall be reviewed by a tribunal as if the patient had been admitted to hospital pursuant to part 3, division 2; and (b) the patient shall not be released, including on leave of absence, unless a tribunal has found that the patient can be released having regard to the interests of the patient’s own welfare and the protection of other persons; and (c) the patient shall not be transferred from one hospital to another unless a tribunal, by writing under the hand of its chairperson, or the director, by signed writing, so orders. 37 Appeal against finding of tribunal (1) A person who is aggrieved by any order (other than a direction for examination of a patient), determination, finding, report or recommendation of a Patient Review Tribunal under this part, being a person specified in subsection (2), may appeal to the Mental Health Tribunal against it. (2) The persons who may appeal pursuant to subsection (1) are—

s 38 57 s 38 Mental Health Act 1974 (a) a crown law officer; (b) the patient concerned or the patient’s legal adviser or the patient’s nearest relative; (c) the director. (3) An appeal to the Mental Health Tribunal pursuant to subsection (1) shall be instituted by way of application made within 7 days from the date of the order, determination, finding, report or recommendation of the Patient Review Tribunal against which the appeal is to be made. (3A) The provisions of section 15(11)(a) to (f) apply with respect to the making of an application that institutes an appeal pursuant to subsection (1) and with respect to an appeal duly instituted. (4) The Mental Health Tribunal may hear and determine an appeal pursuant to subsection (1) whether the patient concerned is present before it or not. (4A) Every appeal shall be heard and determined by way of inquiry de novo by the Mental Health Tribunal. (5) Upon the determination of an appeal, the Mental Health Tribunal may make such finding and order as it considers should have been made by the Patient Review Tribunal and the finding and order so made shall be deemed to be the finding and order of the Patient Review Tribunal for the purposes of this part and where necessary any determination, report or recommendation of the tribunal shall be varied accordingly. (6) The finding and order of the Mental Health Tribunal upon an appeal pursuant to subsection (1) shall be final and conclusive. 38 Persons mentally ill where ss 613 and 645 of the Criminal Code applicable (1) Where a person charged with an indictable offence has, by reason of having been found by a jury to be of unsound mind— (a) before the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 , been ordered by a court to be kept in strict custody in a place determined by the court until the person is dealt with under the laws relating to insane persons; or (b) after the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 , been

s 38 58 s 38 Mental Health Act 1974 ordered by a court to be kept in strict custody in a place determined by the court until the person is dealt with pursuant to the provisions of this Act; or has been ordered by a court, whether before or after the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 to be kept in custody in a place determined by the court until the person can be dealt with according to law, or where in such circumstances some other order to the like effect has been made by a court the Minister may— (c) in the case of a court order made before the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 , where the patient is not in a security patients’ hospital—order as soon as is practicable after the commencement of that section that the patient be admitted to a security patients’ hospital; (d) in the case of a court order made after the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 , where the patient is not in a security patients’ hospital—order as soon as is practicable after the making of the court order that the patient be admitted to a security patients’ hospital. (1A) A patient admitted to a security patients’ hospital under an order referred to in subsection (1)(c) or (d) shall be detained as a restricted patient under this part. (2) Every order made by the Minister under subsection (1) shall be given effect according to its tenor and shall be lawful authority— (a) for a police officer or for any person named for the purpose therein to convey the patient to the security patients’ hospital; and (b) for the hospital administrator of the security patients’ hospital to admit and detain the patient for treatment. (3) Where, pursuant to section 613 or 645 of the Criminal Code, 6 a court makes an order referred to in subsection (1), the registrar of the court shall give notice of the order in the prescribed form to the chief executive 6 Criminal Code, section 613 (Want of understanding of accused person) or 645 (Accused person insane during trial)

s 38 59 s 38 Mental Health Act 1974 (justice) and to the director as soon as is practicable after it is made and in any case within 7 days after it is made. (4) The director shall arrange for every person in relation to whom an order is made under section 613 or 645 of the Criminal Code to be examined by a psychiatrist who, in making the examination, shall have regard to the matters referred to in or prescribed for the purposes of section 30(1), subject to any reference to complaint or in relation to complaint being construed as a reference to charge. (5) Within such time or times as are prescribed the psychiatrist shall forward to the director a report on the examination of the patient and the director, having regard to that report and to the matters to which the psychiatrist is required by subsection (4) to have regard in making the examination, shall give the director’s report to the Attorney-General and shall furnish to the Attorney-General a copy of the report by the psychiatrist, and shall refer the matter to a Patient Review Tribunal. (6) In respect of a matter referred to it under subsection (5) the tribunal may direct to be made such psychiatric, medical and other examinations of the patient as it thinks fit, and having regard to the findings upon such examinations (if any) and to the matters to which a psychiatrist is required by subsection (4) to have regard in making the examination of the patient and to any other information that it considers relevant shall give its report to the Attorney-General. (7) The Attorney-General shall, subject to there being no appeal duly instituted to the Mental Health Tribunal against the findings of the tribunal, submit the report the Attorney-General receives from a Patient Review Tribunal to the Governor in Council and in relation thereto shall recommend whether the patient should or should not be tried for the offence with which the patient is charged. (7A) Such recommendation shall be made to the Governor in Council within 3 months of the making of the court order in relation to the patient under section 613 or 645 of the Criminal Code or within 3 months of the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984, whichever is the later event. (8) Upon receipt of the report of the Patient Review Tribunal and the recommendation of the Attorney-General submitted under subsection (7) the Governor in Council may— (a) order that the patient be not proceeded against for the offence with which the patient is charged; or

s 38 60 s 38 Mental Health Act 1974 (b) order that the patient be tried for the offence with which the patient is charged; or (c) defer a determination of the matter for a period not exceeding 6 months. (9) Where the Governor in Council acts pursuant to subsection (8)(c)— (a) a Patient Review Tribunal is authorised and required to take in respect of the patient all such steps as such a tribunal was authorised and required by subsection (6) to take in respect of the patient when the matter of the patient’s mental condition was referred to it under subsection (5); and (b) the Attorney-General shall take in respect of the patient all such steps as the Attorney-General was required by subsection (7) to take in respect of the patient; and (c) the Governor in Council shall exercise in respect of the patient 1 of the powers conferred on the Governor in Council by subsection (8); at least once before the expiration of the period of deferment. (9A) The Governor in Council may exercise the Governor in Council’s power to defer determination of a matter from time to time and whenever the Governor in Council does so the provisions of subsection (9) shall be given effect. (10) If, within a period of 3 years after the making of a court order under section 613 or 645 of the Criminal Code in relation to a person the Governor in Council has not ordered that the patient be not proceeded against for the offence with which the patient is charged or that the patient be tried for the offence with which the patient is charged the proceedings against that person shall be deemed to have been discontinued. (11) Where the Governor in Council has ordered that the patient be not proceeded against for the offence with which the patient is charged or where proceedings against the patient are deemed to have been discontinued— (a) the chief executive (justice) shall forthwith give notice thereof to the registrar of the court in which the court order under the Criminal Code was made, the commissioner of the police service, the commission, the director and all other persons prescribed; and

s 39 61 s 39 Mental Health Act 1974 (b) the director, upon receipt of such notice, shall notify the psychiatrist in charge of the patient’s treatment accordingly; and (c) the patient shall not be further proceeded against for the offence with which the patient is charged. (12) Where the Governor in Council has ordered that the patient be not proceeded against for the offence with which the patient is charged or where proceedings against the patient are deemed to have been discontinued the patient shall not be entitled to be discharged but shall be liable to be detained as a restricted patient under this part in a security patients’ hospital unless otherwise determined by a Patient Review Tribunal. (13) Where the Governor in Council orders that the patient be tried for the offence— (a) the chief executive (justice) shall give notice thereof to the registrar of the court in which the court order under the Criminal Code was made, the commissioner of the police service, the director and all other persons prescribed; and (b) pending further proceedings against the patient, the patient shall be brought before justices as soon as possible and in any case within 7 days from the making of the order by the Governor in Council and the justices shall remand the patient, in custody or if it is lawful for them so to order, on bail to appear as soon as is practicable at a criminal sittings of the court in which the court order under the Criminal Code was made. (14) Any police officer or other person prescribed is authorised to convey the patient from a hospital to appear before justices in accordance with subsection (13). 39 Persons mentally ill where s 647 of the Criminal Code applicable (1) Where a person charged with an indictable offence has been found by a jury to be not guilty on the ground of unsoundness of mind and has— (a) before the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 , been ordered by a court to be kept in strict custody in a place determined by the court until Her Majesty’s pleasure is known; or

s 39 62 s 39 Mental Health Act 1974 (b) after the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 , been ordered by a court to be kept in strict custody in a place determined by the court until the person is dealt with pursuant to the provisions of this Act; the Minister may— (c) in the case of a court order made before the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 where the patient is not in a security patients’ hospital, and the Governor in Council has not determined under section 647 of the Criminal Code 7 a place of confinement for the safe custody of the patient—order as soon as is practicable after the commencement of that section that the patient be admitted to a security patients’ hospital; (d) in the case of a court order made before the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 where the patient is not in a security patients’ hospital and the Governor in Council has determined under section 647 of the Criminal Code a place of confinement for the safe custody of the patient that is not a security patients’ hospital—order as soon as is practicable after the commencement of that section that the patient be admitted to a security patients’ hospital; (e) in the case of a court order made after the commencement of section 28 of the Mental Health Act, Criminal Code and Health Act Amendment Act 1984 , where the patient is in strict custody in a place other than a security patients’ hospital—order that the patient be admitted to and detained in a security patients’ hospital until a Patient Review Tribunal has otherwise determined under this part. (2) Every order made by the Minister under subsection (1)(c) or (e) shall be given effect and shall be lawful authority— (a) for a police officer or any person named therein for the purpose to convey the patient to the security patients’ hospital named therein; and 7 Criminal Code, section 647 (Acquittal on ground of insanity)