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TASMANIA
__________
MENTAL HEALTH AMENDMENT BILL 2016
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Long title amended
5. Section 3 amended (Interpretation)
6. Section 6 amended (Meaning of treatment )
7. Section 11 amended (Timing of actions)
8. Section 12 amended (Objects of Act)
9. Section 13 amended (Status of Act)
10. Section 16 amended (Circumstances in which treatment may be
given)
11. Section 23 amended (Application for assessment order)
12. Section 24 amended (Making an assessment order)
13. Section 26 amended (Form and content of assessment order)
14. Section 27 amended (Effect of assessment order)
15. Section 31 repealed
16. Section 35 amended (Discharge of assessment order by medical
practitioner or Tribunal)
17. Section 37 amended (Application for treatment order)
18. Section 38 amended (Interim treatment order)
[Bill 49]-IV
19. Section 39 amended (Determination of application for treatment
order)
20. Section 41 amended (Form and content of treatment order)
21. Section 42 substituted
42. Effect of treatment order
22. Section 44 amended (Duration of treatment order)
23. Section 45 amended (Action to be taken by Tribunal on making
treatment order)
24. Section 46 repealed
25. Section 47 amended (Failure to comply with treatment order)
26. Section 47A inserted
47A. Admission to prevent possible harm
27. Section 48 amended (Renewal of treatment order)
28. Section 49 amended (Discharge of treatment order by medical
practitioner or Tribunal)
29. Section 52 amended (Form of treatment plan)
30. Section 54 amended (Variation of treatment plan)
31. Section 55 amended (Urgent circumstances treatment)
32. Section 56 amended (Seclusion)
33. Section 59 amended (Transfer of involuntary patients between
approved hospitals)
34. Section 60 amended (Leave of absence from approved hospital)
35. Section 61 amended (Absence from approved hospital without
leave or in breach of condition &c.)
36. Section 63 amended (Admission)
37. Section 65 amended (Period of detention)
38. Section 65A inserted
65A. Renewal of treatment order for patient in SMHU
39. Section 73 amended (Transfer of forensic patients to hospitals,
&c.)
40. Section 78 amended (When leave of absence for forensic
patients subject to restriction orders may be granted)
41. Section 79 amended (Extension, variation and cancellation of
leave of absence)
2
42. Section 83 amended (Extension, variation and cancellation of
leave of absence)
43. Section 87 amended (Urgent circumstances treatment)
44. Section 88 amended (Authorisation of treatment by Tribunal)
45. Section 91 amended (Interim authorisation of treatment by
Tribunal member)
46. Section 94 amended (Seclusion)
47. Section 110 amended (Screening of persons seeking entry to
SMHU)
48. Section 136 amended (Monthly reports on voluntary inpatients)
49. Section 149 amended (Delegation)
50. Section 167 amended (Establishment)
51. Section 169 amended (Powers)
52. Section 172 amended (Interim determinations on adjournment)
53. Section 173 amended (Questions of law)
54. Section 176 amended (Registrar and staff)
55. Section 178 amended (Annual report)
56. Section 179 amended (The Tribunal's review function)
57. Section 180 amended (Review of assessment order)
58. Section 181 amended (Review of treatment order)
59. Section 191 amended (Review of determination relating to leave
of absence)
60. Section 192A inserted
192A. Tribunal to review forensic patient's treatment
authorisation
61. Section 195 amended (Form of applications for review, &c.)
62. Section 197 amended (On-paper reviews by Registrar)
63. Section 199 amended (Evidence of Tribunal determination or
direction)
64. Section 212 amended (Special powers of ambulance officers and
medical practitioners acting as MHO)
65. Section 213 amended (Unlawful treatment)
66. Section 221 amended (Delegation by controlling authority)
3
67. Section 224 substituted
224. Correction of orders, &c., where validity not affected
224A. Correction of orders, &c., where validity affected
68. Section 226 substituted
226. Service of documents
69. Schedule 3 amended (Membership of Tribunal)
70. Schedule 4 amended (Proceedings of Tribunal)
71. Repeal of Act
4
MENTAL HEALTH AMENDMENT BILL 2016
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
27 October 2016
(Brought in by the Minister for Health, the Honourable
Michael Darrel Joseph Ferguson)
A BILL FOR
An Act to amend the Mental Health Act 2013
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Mental Health
Amendment Act 2016.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
3. Principal Act
In this Act, the Mental Health Act 2013* is
referred to as the Principal Act.
*No. 2 of 2013
[Bill 49] 5
Mental Health Amendment Act 2016
Act No. of
s. 4
4. Long title amended
The long title of the Principal Act is amended by
omitting ", treatment and care" and substituting
"and treatment".
5. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting "appointed under the
Corrections Act 1997" after "Services" in
the definition of Director;
(b) by omitting the definition of give;
(c) by inserting "Australian" after "patient's"
in paragraph (b) of the definition of
representative.
6. Section 6 amended (Meaning of treatment )
Section 6 of the Principal Act is amended by
inserting after subsection (2) the following
subsection:
(3) For the purposes of this Act, treatment
does not include seclusion, chemical
restraint, mechanical restraint or physical
restraint.
6
Mental Health Amendment Act 2016
Act No. of
s. 7
7. Section 11 amended (Timing of actions)
Section 11 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(1) Where this Act requires an action to be
taken, then, unless the contrary intention
appears, the action must be taken as soon
as practicable.
8. Section 12 amended (Objects of Act)
Section 12 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (a) ",
treatment and care" and substituting "and
treatment";
(b) by omitting from paragraph (b) ",
treatment and care" and substituting "and
treatment";
(c) by omitting from paragraph (c) ",
treatment and care" and substituting "and
treatment";
(d) by omitting from paragraph (d) ",
treatment and care" and substituting "and
treatment".
7
Mental Health Amendment Act 2016
Act No. of
s. 9
9. Section 13 amended (Status of Act)
Section 13 of the Principal Act is amended by
omitting ", treatment and care" and substituting
"and treatment".
10. Section 16 amended (Circumstances in which
treatment may be given)
Section 16 of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) from
subsection (1);
(b) by omitting paragraph (b) from
subsection (2);
(c) by omitting paragraph (b) from
subsection (3).
11. Section 23 amended (Application for assessment
order)
Section 23 of the Principal Act is amended by
omitting subsection (3).
12. Section 24 amended (Making an assessment order)
Section 24 of the Principal Act is amended as
follows:
(a) by omitting paragraphs (a) and (b) from
subsection (1);
8
Mental Health Amendment Act 2016
Act No. of
s. 13
(b) by omitting paragraph (d) from
subsection (1) and substituting the
following paragraph:
(d) the examination must have been
done in the 24-hour period
immediately before the
assessment order is made;
(c) by omitting subsection (2) and
substituting the following subsection:
(2) A medical practitioner may make
an assessment order authorising a
patient's admission to and, if
necessary, detention in an
approved hospital.
(d) by omitting from subsection (3)
"requiring a patient who is a child to be
detained in" and substituting "authorising
a patient who is a child to be admitted to
and, if necessary, detained in";
(e) by inserting the following subsection
after subsection (3):
(4) A medical practitioner may make
an assessment order without
having received an application for
the order.
9
Mental Health Amendment Act 2016
Act No. of
s. 13
13. Section 26 amended (Form and content of
assessment order)
Section 26 of the Principal Act is amended as
follows:
(a) by omitting paragraph (a) from
subsection (2);
(b) by omitting paragraphs (d) and (e) from
subsection (2) and substituting the
following paragraphs:
(d) affirms that the patient needs to
be assessed against the
assessment criteria; and
(e) specifies an assessment setting;
and
(ea) specifies if the order authorises
the patient's admission to and
detention in an approved hospital;
and
(c) by omitting subsection (3).
14. Section 27 amended (Effect of assessment order)
Section 27 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsections:
(2) An assessment order is authority -
(a) for any MHO or police officer to
take the patient under escort to
10
Mental Health Amendment Act 2016
Act No. of
s. 14
ensure that he or she presents for
assessment under the order; and
(b) if authorised to do so -
(i) by the terms of the order;
or
(ii) by a medical practitioner
under subsection (4) -
for the patient to be admitted to
an approved facility and, if
necessary, detained in an
approved facility for and in
connection with that assessment.
(3) For the purposes of subsection (2) -
(a) the medical practitioner who
makes the assessment order or
any other medical practitioner
may request that the patient be
taken under escort (in which case
the medical practitioner is to
ensure that the escort is given a
copy of the order); and
(b) the custody and escort provisions
apply, and continue to apply for
so long as the patient is subject to
the assessment order.
(4) Despite subsection (2)(b)(ii), a medical
practitioner is not to authorise a patient
who is a child to be admitted to and, if
necessary, detained in an approved
11
Mental Health Amendment Act 2016
Act No. of
s. 15
hospital unless the medical practitioner is
satisfied that the hospital -
(a) has facilities and staff for the
assessment of the patient; and
(b) is, in the circumstances, the most
appropriate place to
accommodate the patient.
(5) An assessment order is not authority for a
patient to be given any treatment.
15. Section 31 repealed
Section 31 of the Principal Act is repealed.
16. Section 35 amended (Discharge of assessment order
by medical practitioner or Tribunal)
Section 35(2) of the Principal Act is amended by
inserting ", after examining the patient or on
other reasonable grounds," after "satisfied".
17. Section 37 amended (Application for treatment
order)
Section 37 of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) from
subsection (5);
(b) by omitting from subsection (6)(a) "an
MHT approved form" and substituting "a
form approved by the President".
12
Mental Health Amendment Act 2016
Act No. of
s. 18
18. Section 38 amended (Interim treatment order)
Section 38 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(b) "for"
and substituting "that, for";
(b) by omitting from subsection (2)(b) "be"
and substituting "may be admitted to
and, if necessary,";
(c) by inserting the following subsection
after subsection (2):
(2A) An interim treatment order may
provide for a combination of
treatment settings and for the
admission and re-admission of
the patient to those settings.
(d) by omitting from subsection (3)
"detained in" and substituting "admitted
to and, if necessary, detained in".
19. Section 39 amended (Determination of application
for treatment order)
Section 39 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(c)
"criteria." and substituting "criteria;
and";
(b) by inserting the following paragraphs
after paragraph (c) in subsection (1):
13
Mental Health Amendment Act 2016
Act No. of
s. 20
(d) a treatment plan has been
prepared for the person; and
(e) the requirements of section 53(2)
appear to have been met with
respect to the treatment plan.
(c) by omitting from subsection (2)(b) "be"
and substituting "may be admitted to
and, if necessary,";
(d) by inserting the following subsection
after subsection (2):
(2A) A treatment order may provide
for a combination of treatment
settings and for the admission and
re-admission of the patient to
those settings.
(e) by omitting from subsection (3)
"detained in" and substituting "admitted
to and, if necessary, detained in".
20. Section 41 amended (Form and content of
treatment order)
Section 41 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal";
14
Mental Health Amendment Act 2016
Act No. of
s. 21
(b) by omitting paragraph (d) from
subsection (2) and substituting the
following paragraphs:
(d) specifies a treatment setting; and
(da) specifies if the order authorises
the patient's admission to and, if
necessary, detention in an
approved hospital; and
(c) by omitting subsection (3).
21. Section 42 substituted
Section 42 of the Principal Act is repealed and
the following section is substituted:
42. Effect of treatment order
(1) A treatment order is authority for the
patient to be given, without informed
consent, the treatment, or type of
treatment, specified in the order.
(2) A treatment order is authority -
(a) for the patient to be admitted to
and, if necessary, detained in an
approved facility, or type of
approved facility, for the
purposes of receiving treatment,
if the terms of the order so
specify; or
(b) in any case, if section 47 or
section 47A applies in relation to
15
Mental Health Amendment Act 2016
Act No. of
s. 21
the patient, authority for the
patient to be admitted to and, if
necessary, detained in an
approved facility (other than an
SMHU) -
until whichever of the following first
occurs:
(c) the order is varied so as to
provide for a different treatment
setting;
(d) if the detention is authorised
under the order, the order ceases
to have effect under this Act.
(3) If a patient is admitted to an approved
facility under this section, the controlling
authority of the approved facility is to
notify the Tribunal and the CCP of the
patient's admission.
(4) A treatment order in respect of a person
is authority for any MHO or police
officer to take the patient under escort to
ensure that he or she presents for
treatment under the order.
(5) For the purposes of subsection (2), the
Tribunal, any member of the Tribunal,
the Registrar, the CCP or any medical
practitioner may request that the patient
be taken under escort (in which case the
maker of the request is to give the escort
a copy of the treatment order).
16
Mental Health Amendment Act 2016
Act No. of
s. 22
(6) If a patient is taken under escort in
accordance with this section, the custody
and escort provisions apply, and continue
to apply for so long as the patient is
subject to the treatment order.
22. Section 44 amended (Duration of treatment order)
Section 44 of the Principal Act is amended by
omitting "A" and substituting "Subject to
section 48, a".
23. Section 45 amended (Action to be taken by Tribunal
on making treatment order)
Section 45(a) of the Principal Act is amended by
omitting "an MHT approved form" and
substituting "a form approved by the President
of the Tribunal".
24. Section 46 repealed
Section 46 of the Principal Act is repealed.
25. Section 47 amended (Failure to comply with
treatment order)
Section 47 of the Principal Act is amended as
follows:
(a) by omitting paragraphs (b) and (c) from
subsection (2) and substituting the
following paragraphs:
17
Mental Health Amendment Act 2016
Act No. of
s. 26
(b) seek to have the patient admitted
to and, if necessary, detained in
an approved facility under and in
accordance with section 42; or
(a) authorise urgent circumstances
treatment under section 55 if the
treating medical practitioner is an
approved medical practitioner; or
(b) seek authorisation to give urgent
circumstances treatment under
section 55 if the treating medical
practitioner is not an approved
medical practitioner.
(b) by omitting from subsection (3)
"detained in" and substituting "admitted
to and, if necessary, detained in".
26. Section 47A inserted
After section 47 of the Principal Act, the
following section is inserted in Division 2:
47A. Admission to prevent possible harm
(1) This section applies if -
(a) a patient is subject to a treatment
order that provides for a
combination of treatment settings
and for the admission and
readmission of the patient to
those settings; and
18
Mental Health Amendment Act 2016
Act No. of
s. 26
(b) the patient has complied with the
treatment order; and
(c) the treating medical practitioner
is satisfied on reasonable grounds
that -
(i) despite the patient's
compliance, the patient's
health or safety or the
safety of any other person
has been, or is likely to
be, seriously harmed; and
(ii) the harm, or likely harm,
cannot be adequately
addressed except by way
of the patient's admission
or readmission to and, if
necessary, detention in an
approved hospital.
(2) If this section applies, the treating
medical practitioner may, according to
the circumstances, seek to have the
patient taken under escort and
involuntarily admitted to, and detained
in, an approved facility under and in
accordance with section 42.
(3) However, the treating medical
practitioner is not to seek to have a
patient who is a child admitted to and, if
necessary, detained in an approved
hospital unless the treating medical
practitioner is satisfied that the hospital -
19
Mental Health Amendment Act 2016
Act No. of
s. 27
(a) has facilities and staff for the
treatment and care of the patient;
and
(b) is, in the circumstances, the most
appropriate place to
accommodate the patient.
27. Section 48 amended (Renewal of treatment order)
Section 48 of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) from
subsection (3) and substituting the
following paragraphs:
(b) particulars of any recommended
change in treatment; and
(ba) particulars of any recommended
change to the treatment setting;
and
(b) by omitting from subsection (4)(a) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal";
(c) by omitting from subsection (9)(a) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal".
20
Mental Health Amendment Act 2016
Act No. of
s. 28
28. Section 49 amended (Discharge of treatment order
by medical practitioner or Tribunal)
Section 49(4) of the Principal Act is amended by
omitting "an MHT approved form" and
substituting "a form approved by the President
of the Tribunal".
29. Section 52 amended (Form of treatment plan)
Section 52 of the Principal Act is amended by
omitting subsection (2).
30. Section 54 amended (Variation of treatment plan)
Section 54(4) of the Principal Act is amended by
omitting paragraph (c).
31. Section 55 amended (Urgent circumstances
treatment)
Section 55 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "the
CCP" and substituting "an approved
medical practitioner";
(b) by omitting from subsection (2) "The
CCP" and substituting "An approved
medical practitioner";
(c) by omitting from subsection (2) "CCP"
second occurring and substituting
"appproved medical practitioner";
21
Mental Health Amendment Act 2016
Act No. of
s. 31
(d) by omitting subsections (3), (4), (5) and
(6) and substituting the following
subsection:
(3) An approved medical practitioner
may give the authorisation if, and
only if, he or she has concluded
from an examination that -
(a) the patient has a mental
illness that is generally in
need of treatment; and
(b) the urgent circumstances
treatment is necessary
for -
(i) the patient's
health or safety; or
(ii) the safety of other
persons; and
(c) the urgent circumstances
treatment is likely to be
effective and appropriate
in terms of the outcomes
referred to in section 6(1);
and
(d) achieving the necessary
treatment outcome would
be compromised by
waiting for the urgent
circumstances treatment
to be authorised by the
Tribunal (or by a member
22
Mental Health Amendment Act 2016
Act No. of
s. 31
thereof on an interim
basis).
(e) by omitting from subsection (7) "CCP"
first occurring and substituting
"approved medical practitioner";
(f) by omitting from subsection (7) "CCP"
second occurring and substituting
"approved medical practitioner";
(g) by omitting from subsection (8)
"applicant" and substituting "approved
medical practitioner";
(h) by omitting paragraphs (a) and (ab) from
subsection (8) and substituting the
following paragraphs:
(a) to ensure that the patient is
advised of the authorisation as
soon as possible after it is given;
(ab) to give a copy of the authorisation
to the CCP and the Tribunal;
(ac) to give a copy of the authorisation
to the patient (together with a
statement of rights in a CCP
approved form);
(i) by omitting paragraph (b) from
subsection (9);
(j) by inserting the following paragraph after
paragraph (d) in subsection (9):
23
Mental Health Amendment Act 2016
Act No. of
s. 32
(da) the assessment order, treatment
order or interim treatment order
ceases or is discharged;
(k) by omitting subsection (10).
32. Section 56 amended (Seclusion)
Section 56 of the Principal Act is amended by
inserting after subsection (4) the following
subsection:
(4A) Notwithstanding the discretionary nature
of the power under section 152(1), the
CCP must ensure that standing orders are
issued for this section.
33. Section 59 amended (Transfer of involuntary
patients between approved hospitals)
Section 59 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2) "The"
and substituting "Except in an
emergency, the";
(b) by omitting from subsection (2) ",
specifying the mode and conditions of
transport, and is invalid if not in that
form";
(c) by inserting the following subsections
after subsection (2):
24
Mental Health Amendment Act 2016
Act No. of
s. 33
(2A) In an emergency, the transfer
direction may be given orally or
in writing.
(2B) If a transfer direction is given
orally in accordance with
subsection (2A), it must be
confirmed in writing in a CCP
approved form as soon as
practicable after it is given.
(2C) The transfer direction is authority
for an MHO to -
(a) take the patient under
escort; and
(b) remove the patient from
the transferring hospital;
and
(c) take the patient to the
other hospital.
(2D) For the purposes of
subsection (2C) -
(a) the CCP may request that
the patient be taken under
escort (in which case the
CCP is to ensure that the
escort is given a copy of
the transfer direction);
and
(b) the custody and escort
provisions apply.
25
Mental Health Amendment Act 2016
Act No. of
s. 34
(d) by omitting subsections (4), (5) and (6)
and substituting the following
subsection:
(4) The CCP is to ensure that, if
practicable, the actions required
by subsection (3)(a) and (b) are
taken before the transfer takes
place.
(e) by omitting from subsection (7)
"admission, or detention" twice
occurring and substituting "admission
and, if necessary, detention".
34. Section 60 amended (Leave of absence from
approved hospital)
Section 60 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2) ", and
for any period not exceeding 14 days";
(b) by inserting the following subsection
after subsection (3):
(3A) Leave must not be granted for a
continuous period of more than
14 days.
(c) by inserting in subsection (10)(a) "a
continuous period of" after "exceed";
(d) by inserting in subsection (11)(a) "a
continuous period of" after "exceed".
26
Mental Health Amendment Act 2016
Act No. of
s. 35
35. Section 61 amended (Absence from approved
hospital without leave or in breach of condition &c.)
Section 61 of the Principal Act is amended as
follows:
(a) by inserting the following subsection
after subsection (1):
(1A) This section also applies if a
patient is absent from an
approved hospital without leave.
(b) by inserting in subsection (2) "is to alert
the Tribunal and" after "practitioner".
36. Section 63 amended (Admission)
Section 63(3) of the Principal Act is amended by
inserting "and the treatment order has effect as if
it provided for the patient's detention in the
SMHU" after "order".
37. Section 65 amended (Period of detention)
Section 65 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b) "made."
and substituting "made; or";
(b) by inserting the following paragraphs
after paragraph (b):
27
Mental Health Amendment Act 2016
Act No. of
s. 38
(c) if the patient is subject to an
assessment order, the assessment
order expires or is discharged; or
(d) if the patient is subject to a
treatment order, the treatment
order expires or is discharged -
whichever occurs first.
38. Section 65A inserted
After section 65 of the Principal Act, the
following section is inserted in Division 8:
65A. Renewal of treatment order for patient in
SMHU
In its application to an involuntary
patient admitted to an SMHU under
section 63, Division 2 of Part 3 of
Chapter 2 is modified as follows:
(a) when renewing a treatment order
under section 48, the Tribunal
may specify a treatment setting
other than an SMHU;
(b) section 48(3)(b) does not apply;
(c) the CPF is the person to whom
notice under section 48(9)(b)(iii)
is to be given.
28
Mental Health Amendment Act 2016
Act No. of
s. 39
39. Section 73 amended (Transfer of forensic patients
to hospitals, &c.)
Section 73(3) of the Principal Act is amended by
omitting "by any other convenient means" and
substituting "in writing".
40. Section 78 amended (When leave of absence for
forensic patients subject to restriction orders may
be granted)
Section 78(13)(b) of the Principal Act is
amended by omitting "an MHT approved form"
and substituting "a form approved by the
President of the Tribunal".
41. Section 79 amended (Extension, variation and
cancellation of leave of absence)
Section 79 of the Principal Act is amended as
follows:
(a) by omitting from subsection (3) "10" and
substituting "20";
(b) by inserting the following subsections
after subsection (3):
(3A) Once an application for an
extension or variation of
conditions of leave has been
made, the following provisions
apply:
(a) the Tribunal is to notify
the Secretary
29
Mental Health Amendment Act 2016
Act No. of
s. 41
(Corrections) of the
application;
(b) the Secretary
(Corrections) is to check
the Eligible Persons
Register to determine
whether there are any
eligible persons in
relation to the patient;
(c) if there are such eligible
persons, the Secretary
(Corrections) is to make a
reasonable attempt to
notify each of them of the
application and of their
right to make written
submissions in respect of
it within 10 days after the
eligible person is notified;
(d) the Tribunal is to notify
any other person who, in
the Tribunal's opinion,
should be notified of the
application, and of that
person's right to make
written submissions in
respect of it within 10
days, after being notified
of the application.
(3B) The Tribunal is to consider any
submissions received under
subsection (3A) before extending
30
Mental Health Amendment Act 2016
Act No. of
s. 42
or varying the conditions of
leave.
42. Section 83 amended (Extension, variation and
cancellation of leave of absence)
Section 83 of the Principal Act is amended by
inserting after subsection (2) the following
subsections:
(2A) In considering whether or not to extend,
or vary the conditions of, leave, the
following provisions apply:
(a) the CFP is to notify the Secretary
(Corrections) that an extension or
variation of the leave is under
consideration;
(b) the Secretary (Corrections) is to
check the Eligible Persons
Register to determine whether
there are any eligible persons in
relation to the patient;
(c) if there are such eligible persons,
the Secretary (Corrections) is to
make a reasonable attempt to
notify each of them of the
consideration and of their right to
make written submissions in
respect of it within 10 days after
the eligible person is notified;
(d) the CFP is to notify any other
person who, in the CFP's
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Mental Health Amendment Act 2016
Act No. of
s. 43
opinion, should be notified of the
consideration and of that person's
right to make written submissions
in respect of it within 10 days
after being notified of the
application.
(2B) In the case of an extension of leave, the
CFP is to notify the Secretary
(Corrections) under subsection (2A)(a)
not less than 20 days before the leave is
due to expire.
(2C) The CFP is to consider any submissions
received under subsection (2A) before
extending or varying the conditions of
the leave.
43. Section 87 amended (Urgent circumstances
treatment)
Section 87 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "the
CFP" and substituting "an approved
medical practitioner";
(b) by omitting from subsection (2) "CFP"
twice occurring and substituting
"approved medical practitioner";
(c) by omitting subsections (3), (4), (5) and
(6) and substituting the following
subsection:
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Mental Health Amendment Act 2016
Act No. of
s. 43
(3) The approved medical
practitioner may give the
authorisation if, and only if, he or
she has concluded from an
examination that -
(a) the patient has a mental
illness that is generally in
need of treatment; and
(b) the urgent circumstances
treatment is necessary
for -
(i) the patient's
health or safety; or
(ii) the safety of other
persons; and
(c) the urgent circumstances
treatment is likely to be
both effective and
appropriate in terms of the
outcomes referred to in
section 6(1); and
(d) achieving the necessary
treatment outcome would
be compromised by
waiting for the urgent
circumstances treatment
to be authorised by the
Tribunal (or by a member
thereof on an interim
basis).
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Mental Health Amendment Act 2016
Act No. of
s. 43
(d) by omitting from subsection (7) "CFP"
first occurring and substituting
"approved medical practitioner";
(e) by omitting from subsection (7) "CFP"
second occurring and substituting
"approved medical practitioner";
(f) by omitting from subsection (8)
"applicant" and substituting "approved
medical practitioner";
(g) by omitting paragraphs (a) and (ab) from
subsection (8) and substituting the
following paragraphs:
(a) to ensure that the patient is
advised of the authorisation as
soon as possible after it is given;
(ab) to give a copy of the authorisation
to the CFP and the Tribunal;
(ac) to give a copy of the authorisation
to the patient (together with a
statement of rights in a CFP
approved form);
(h) by omitting paragraph (b) from
subsection (9);
(i) by inserting the following paragraph after
paragraph (d) in subsection (9):
(da) the patient is discharged from the
SMHU;
(j) by omitting subsection (10).
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Mental Health Amendment Act 2016
Act No. of
s. 44
44. Section 88 amended (Authorisation of treatment by
Tribunal)
Section 88 of the Principal Act is amended as
follows:
(a) by omitting from subsection (4) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal";
(b) by omitting from subsection (5)(a) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal".
45. Section 91 amended (Interim authorisation of
treatment by Tribunal member)
Section 91 of the Principal Act is amended as
follows:
(a) by omitting from subsection (5) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal";
(b) by omitting from subsection (8) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal";
(c) by omitting from subsection (11)(a) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal".
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Mental Health Amendment Act 2016
Act No. of
s. 46
46. Section 94 amended (Seclusion)
Section 94 of the Principal Act is amended by
inserting after subsection (4) the following
subsection:
(5) Notwithstanding the discretionary nature
of the power under section 152(1), the
CFP must ensure that CFP standing
orders are issued for this section.
47. Section 110 amended (Screening of persons seeking
entry to SMHU)
Section 110(3) of the Principal Act is amended
by inserting "Australian" after "police officers,".
48. Section 136 amended (Monthly reports on
voluntary inpatients)
Section 136(2)(a) of the Principal Act is
amended by omitting "an MHT approved form"
and substituting "a form approved by the
President of the Tribunal".
49. Section 149 amended (Delegation)
Section 149(3) of the Principal Act is amended
by omitting paragraph (a) from the definition of
restricted professional power.
50. Section 167 amended (Establishment)
Section 167(2)(a) of the Principal Act is
amended by omitting "at least 5 years'
36
Mental Health Amendment Act 2016
Act No. of
s. 51
experience as such" and substituting "not less
than 5 years' standing as an Australian legal
practitioner".
51. Section 169 amended (Powers)
Section 169(2) of the Principal Act is amended
as follows:
(a) by omitting "Without limiting
subsection (1), the Tribunal may " and
substituting "The President of the
Tribunal has the power to ";
(b) by omitting from paragraph (a) "its" and
substituting "the Tribunal's";
(c) by omitting from paragraph (b) "its" and
substituting "the Tribunal's";
(d) by omitting from paragraph (c) "its" and
substituting "the Tribunal's".
52. Section 172 amended (Interim determinations on
adjournment)
Section 172(1) of the Principal Act is amended
by omitting ", but not more than twice, and only
if the total period of all such adjournments
together is not more than 30 days".
53. Section 173 amended (Questions of law)
Section 173 of the Principal Act is amended by
inserting "President of the" after "The".
37
Mental Health Amendment Act 2016
Act No. of
s. 54
54. Section 176 amended (Registrar and staff)
Section 176(2) of the Principal Act is amended
by inserting "President of the" after "The".
55. Section 178 amended (Annual report)
Section 178(1) of the Principal Act is amended
as follows:
(a) by inserting "President of the" after
"The";
(b) by omitting "its" and substituting "the
Tribunal's".
56. Section 179 amended (The Tribunal's review
function)
Section 179(1) of the Principal Act is amended
by inserting after paragraph (e) the following
paragraph:
(ea) the authorisation of treatment for any
forensic patient; and
57. Section 180 amended (Review of assessment order)
Section 180(e)(i) of the Principal Act is amended
by omitting "an MHT approved form" and
substituting "a form approved by the President
of the Tribunal".
38
Mental Health Amendment Act 2016
Act No. of
s. 58
58. Section 181 amended (Review of treatment order)
Section 181 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a) "30"
and substituting "60";
(b) by omitting from subsection (1)(b) "90"
and substituting "180";
(c) by omitting from subsection (1)(c) "90"
and substituting "180";
(d) by omitting from subsection (1)(d)
"detention at" and substituting
"admission to";
(e) by omitting from subsection (1)(d)
"detention is pursuant to
section 42(2)(c)" and substituting
"admission is pursuant to
section 42(2)(b)";
(f) by inserting the following subsection
after subsection (2):
(2A) The Tribunal may vary a
treatment order whether or not it
has conducted a review under this
section.
(g) by omitting from subsection (3)(a) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal";
39
Mental Health Amendment Act 2016
Act No. of
s. 59
(h) by omitting from subsection (4)
"detained in" and substituting "admitted
to and, if necessary, detained in".
59. Section 191 amended (Review of determination
relating to leave of absence)
Section 191(f) of the Principal Act is amended as
follows:
(a) by omitting from subparagraph (i) "a
discrete period of leave exceeding" and
substituting "leave for a continuous
period of more than";
(b) by omitting from subparagraph (ii) "a
discrete period of leave exceeding" and
substituting "leave for a continuous
period of more than".
60. Section 192A inserted
After section 192 of the Principal Act, the
following section is inserted in Division 2:
192A. Tribunal to review forensic patient's
treatment authorisation
(1) The following provisions apply to the
review of the authorisation of treatment
for a forensic patient:
(a) the Tribunal must review the
authorisation within 60 days after
it is made, if it is still in effect;
40
Mental Health Amendment Act 2016
Act No. of
s. 60
(b) the Tribunal must further review
the authorisation within 180 days
after it is made, if it is still in
effect;
(c) after the further review referred
to in paragraph (b), the Tribunal
must further review the
authorisation at intervals not
exceeding 180 days for so long as
it remains in effect;
(d) the Tribunal may review the
authorisation at any other time -
(i) on its own motion; or
(ii) on the application of any
person with the necessary
standing;
(e) the review is to be conducted by a
division of 3 members but need
not involve a hearing;
(f) on review, the Tribunal may
affirm, vary or discharge the
authorisation.
(2) Within 24 hours of reviewing an
authorisation, the Tribunal is to -
(a) give a copy of its determination
to the patient (together with a
statement of rights in a form
approved by the President of the
Tribunal); and
41
Mental Health Amendment Act 2016
Act No. of
s. 61
(b) give a copy of its determination
to -
(i) the controlling authority
of the relevant SMHU;
and
(ii) the CFP.
61. Section 195 amended (Form of applications for
review, &c.)
Section 195 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a) "an
MHT approved form" and substituting "a
form approved by the President of the
Tribunal";
(b) by omitting paragraphs (b), (c), (d), (e)
and (f) from subsection (1);
(c) by inserting in subsection (3)(b)
"Australian" after "this,".
62. Section 197 amended (On-paper reviews by
Registrar)
Section 197 of the Principal Act is amended by
omitting subsection (4) and substituting the
following subsection:
(4) This section does not apply to -
42
Mental Health Amendment Act 2016
Act No. of
s. 63
(a) a 60-day or 180-day review of a
treatment order; or
(b) a 60-day or 180-day review of the
authorisation of treatment for a
forensic patient.
63. Section 199 amended (Evidence of Tribunal
determination or direction)
Section 199 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or
direction" after "A determination";
(b) by inserting in subsection (1)(a) "or
direction" after "determination";
(c) by inserting in subsection (3) "or
direction" after "a determination";
(d) by inserting in subsection (3) "or
direction" after "the determination".
64. Section 212 amended (Special powers of ambulance
officers and medical practitioners acting as MHO)
Section 212 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or an
approved medical officer" after "An
approved ambulance officer";
43
Mental Health Amendment Act 2016
Act No. of
s. 65
(b) by inserting in subsection (1) "or
approved medical officer" after "the
approved ambulance officer";
(c) by inserting in subsection (2) "or
approved medical officer" after "officer";
(d) by inserting in subsection (3) "or
approved medical officer" after "officer";
(e) by inserting the following definition after
the definition of approved ambulance
officer in subsection (5):
approved medical officer means a
medical practitioner who is
approved as an MHO for this Act;
65. Section 213 amended (Unlawful treatment)
Section 213(2) of the Principal Act is amended
by inserting "or any other law" after "Act".
66. Section 221 amended (Delegation by controlling
authority)
Section 221 of the Principal Act is amended by
inserting "or any other Act" after "Act".
67. Section 224 substituted
Section 224 of the Principal Act is repealed and
the following sections are substituted:
44
Mental Health Amendment Act 2016
Act No. of
s. 67
224. Correction of orders, &c., where validity not
affected
(1) The validity of an order, determination,
direction or other document produced
under this Act is not affected by an error
unless -
(a) the error relates to the grounds on
which the order, determination,
direction or other document was
made and proper grounds for
making it did not exist; or
(b) as a result of the error, the order,
determination, direction or other
document does not comply with a
mandatory requirement of this
Act relating to the making of the
order, determination, direction or
other document.
(2) An error in an order, determination,
direction or other document made by the
Tribunal under this Act that does not
affect the validity of the order,
determination, direction or other
document may be corrected by the
Registrar or the President.
(3) An error in a CCP approved form that
does not affect its validity may be
corrected by the CCP.
(4) An error in a CFP approved form that
does not affect its validity may be
corrected by the CFP.
45
Mental Health Amendment Act 2016
Act No. of
s. 67
224A. Correction of orders, &c., where validity
affected
(1) An error in an order, determination,
direction or other document made by the
Tribunal under this Act that affects the
validity of the order, determination,
direction or other document may be
corrected at any time by the Tribunal -
(a) on its own motion; or
(b) on the application of an approved
medical practitioner; or
(c) on the application of any person
with the necessary standing.
(2) When correcting an order, determination,
direction or other document, the
Tribunal -
(a) is to consist of 3 members; and
(b) need not conduct a hearing.
(3) Within 24 hours after correcting an order,
determination, direction or other
document under this section, the Tribunal
must -
(a) give a copy of the corrected
document to the patient (together
with a statement of rights in a
form approved by the President);
and
46
Mental Health Amendment Act 2016
Act No. of
s. 68
(b) give a copy of the corrected
document to -
(i) if the patient has been, is
or will be admitted to, or
detained in, an approved
hospital, the controlling
authority of that approved
hospital; or
(ii) if the patient is a forensic
patient, the CFP and the
controlling authority of
the relevant SMHU; or
(iii) in any other case, the
CCP.
68. Section 226 substituted
Section 226 of the Principal Act is repealed and
the following section is substituted:
226. Service of documents
(1) A notice or other document that is
required to be given or served under this
Act is effectively given or served if -
(a) in the case of a natural person
who is -
(i) a voluntary inpatient; or
(ii) a forensic patient; or
47
Mental Health Amendment Act 2016
Act No. of
s. 68
(iii) an involuntary patient
who is being detained in
an approved facility under
the authority of an
assessment order or a
treatment order -
the document is given to the
person; or
(b) in the case of any other natural
person, the document is -
(i) given to the person; or
(ii) left at, or sent by post to,
the person's postal or
residential address or
place or address of
business or employment
last known to the server
of the document; or
(iii) faxed to the person's fax
number; or
(iv) emailed to the person's
email address; or
(c) in the case of any other person, it
is -
(i) left at, or sent by post to,
the person's principal or
registered office or
principal place of
business; or
48
Mental Health Amendment Act 2016
Act No. of
s. 69
(ii) faxed to the person's fax
number; or
(iii) emailed to the person's
email address.
(2) For the purposes of this section -
give, in relation to a notice or other
document, includes cause the
notice or other document to be
given.
69. Schedule 3 amended (Membership of Tribunal)
Schedule 3 to the Principal Act is amended as
follows:
(a) by omitting from clause 7(2)(a)
"Tribunal's permission" and substituting
"permission of the President of the
Tribunal";
(b) by inserting in clause 11(1) "President of
the" after "The".
70. Schedule 4 amended (Proceedings of Tribunal)
Schedule 4 to the Principal Act is amended by
inserting in clause 11(1) of Part 2 "President of
the" after "The".
49
Mental Health Amendment Act 2016
Act No. of
s. 71
71. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which all of the
provisions of this Act commence.
50 Government Printer, Tasmania