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CLAUSE NOTES
Mental Health Amendment Bill 2016
Clause 1 Short Title
This clause provides for the Act’s citation.
Clause 2 Commencement
This clause provides for the Act’s commencement.
Clause 3 Principal Act
This clause identifies the Mental Health Act 2013 as the Principal Act to
which the Bill relates.
Clause 4 Long title amended
This clause amends the Principal Act’s long title to remove references to
“care”.
The amendment complements proposed amendments to sections 12
and 13 of the Principal Act at clauses 8 and 9.
Clause 5 Section 3 amended (Interpretation)
This clause amends section 3 of the Principal Act to modify the way in
which certain terms used in the Principal Act are to be interpreted and
applied.
The clause:
Amends the definition of “Director” to confirm that for the purposes
of the Principal Act, the Director is the Director of Corrective
Services appointed under the Corrective Services Act 1997
Omits the definition of “give”. This complements the proposed
insertion of a new section 226 at clause 68
Amends the definition of “representative” to refer to the patient’s
Australian lawyer. The term “Australian lawyer” is defined in the
Acts Interpretation Act 1931 and the proposed amendment is
intended to ensure consistency with that Act, and with the Legal
Profession Act 2007.
Clause 6 Section 6 amended (Meaning of treatment)
This clause amends section 6 of the Principal Act to confirm that for the
purposes of the Principal Act, the term “treatment” does not include
seclusion, chemical restraint, mechanical restraint and physical restraint.
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Clause 7 Section 11 amended (Timing of actions)
This clause amends section 11 of the Principal Act to confirm the need for
relevant actions to be taken as soon as practicable, unless the contrary
intention appears.
Clause 8 Section 12 amended (Objects of Act)
This clause amends section 12 of the Principal Act to remove references
to “care”.
The amendments complement proposed amendments to the Principal
Act’s long title, and to section 13 of the Principal Act at clauses 4 and 9.
Clause 9 Section 13 amended (Status of Act)
This clause amends section 13 of the Principal Act to remove references
to “care”.
The amendment complements proposed amendments to the Principal
Act’s long title, and to section 12 of the Principal Act at clauses 4 and 8.
The intention of the amendments is to:
Clarify the Principal Act’s status in relation to other sources of
authority for the care of persons with a mental illness which exist in
Tasmania, including the Guardianship and Administration Act 1995
Confirm that where there is a choice between using the provisions
of the Principal Act, or the provisions of another Act, to provide for
a person’s care, the provisions of the other Act are to be used to
the extent that the provisions of the other Act provide the
necessary authority.
For the purposes of this document, the term “care” is intended to refer to
matters relating to a person’s longer term accommodation needs, general
health care or dental care, or decisions about a person’s estate.
Clause 10 Section 16 amended (Circumstances in which treatment may be given)
This clause amends section 16 of the Principal Act to remove those parts
of the section which purport to prohibit the giving of treatment to a
voluntary patient, involuntary patient or forensic patient.
The Principal Act operates alongside other laws which provide authority
for the provision of treatment to people with a mental illness, including the
common law.
The intention is to remove those parts of section 16 which may be read as
limiting or affecting the operation of other laws, including the common law.
Clause 11 Section 23 amended (Application for assessment order)
This clause amends section 23 of the Principal Act to remove the
requirement for an application for an assessment order to be in a Chief
Civil Psychiatrist approved form.
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The intention is to remove unnecessary limitations which currently exist
with respect to the making of an application and to provide applicants with
flexibility around the making of an application.
The amendment complements proposed amendments to section 24 of
the Principal Act at clause 12 to remove the requirement for a medical
practitioner making an assessment order to be satisfied that an application
is in the correct form.
Clause 12 Section 24 amended (Making an assessment order)
This clause amends section 24 of the Principal Act to:
Remove the requirement for a medical practitioner making an
assessment order to be in receipt of an application for the order.
The intention is to enable a medical practitioner to make an
assessment order whether or not the practitioner is in receipt of an
application for the order
Remove the requirement for a medical practitioner to be satisfied
that the applicant for an assessment order is entitled to make the
application, and that the application is in the correct form. This is
consistent with other proposed amendments to section 24 to
remove the requirement for a medical practitioner to be in receipt
of an application for the order
Remove the requirement for a medical practitioner making an
assessment order to have examined the patient in the 72-hour
period immediately before or after receiving the application and
insert a requirement for the medical practitioner to have examined
the person in the 24-hour period immediately before the assessment
order is made. The intention is to ensure that the medical
practitioner’s examination occurs proximate to the making of the
assessment order
Confirm the medical practitioner’s ability to make an assessment
order authorising a patient’s admission to, and if necessary, detention
in an approved hospital
Confirm the medical practitioner’s ability to make an assessment
order without having received an application for the order
Ensure consistency of language with other sections of the Principal
Act.
Clause 13 Section 26 amended (Form and content of assessment order)
This clause makes a number of amendments to section 26 of the Principal
Act.
This includes amendments to:
Remove the requirement for an assessment order to identify the
person who applied for it. This complements proposed
amendments to section 24 of the Principal Act at clause 12 to
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remove the requirement for a medical practitioner making an
assessment order to be in receipt of an application for the order
Remove the requirement for an assessment order to affirm that (and
state how) the patient meets the assessment criteria and insert a
requirement that an assessment order affirms that the patient needs
to be assessed against the assessment criteria. This is to ensure
consistency with section 24 of the Principal Act, which enables a
medical practitioner to make an assessment order if he or she is
satisfied from an examination of the patient that the person needs to
be assessed against the assessment criteria.
The clause further amends section 26 of the Principal Act to:
Remove the requirement for an assessment order to recommend an
assessment setting and insert a requirement that an assessment
order specifies an assessment setting
Remove subsection 3, which enables an assessment order to include
a requirement that a patient be detained in an approved hospital,
and insert a requirement for an assessment order to specify if the
order authorises the patient’s admission to, and detention in, an
approved hospital.
The amendments complement proposed amendments to sections 27 and
31 of the Principal Act at clauses 14 and 15.
Clause 14 Section 27 amended (Effect of assessment order)
This clause makes a number of amendments to section 27 of the Principal
Act to:
Ensure consistency of language with other sections of the Principal
Act
Provide a single source of authority for the actions that may be taken
in respect of a person who is subject to an assessment order,
including the patient’s escort by Mental Health Officer or police
officer in relevant circumstances.
The amendments achieve this by extending section 27 of the Principal Act
to incorporate matters that are currently provided for in existing section
31 of the Principal Act, and restructuring that section to aid readability.
The amendments complement the proposed repeal of section 31 of the
Principal Act at clause 15.
Clause 15 Section 31 repealed
This clause repeals section 31 of the Principal Act.
The amendment complements proposed amendments to section 27 of
the Principal Act at clause 14.
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Clause 16 Section 35 amended (Discharge of assessment order by medical
practitioner or Tribunal)
This clause amends section 35 of the Principal Act to limit the
circumstances in which a medical practitioner may discharge an assessment
order.
Currently, section 35 enables a medical practitioner to discharge an
assessment order at any time for sufficient cause, provided the practitioner
is satisfied that the patient does not meet the assessment criteria.
The section does not identify how the medical practitioner should satisfy
him or herself of these matters.
The amendments are intended to enable a medical practitioner to
discharge an assessment order only if the practitioner:
Has examined the patient and is satisfied from that examination that
the patient does not meet the assessment criteria, or
Has not examined the patient but is satisfied, on other reasonable
grounds that the patient does not meet the assessment criteria.
The term “other reasonable grounds” is not defined. The intention is to
capture grounds which are reasonable in the circumstances. This might
include information about the patient’s state of mental health provided by
another medical practitioner, or member of nursing staff.
Clause 17 Section 37 amended (Application for treatment order)
This clause amends section 37 of the Principal Act to remove the
requirement for an application for a treatment order in respect of a person
to be accompanied by a proposed treatment plan for the person.
This amendment complements proposed new section 42 and the
proposed repeal of section 46 at clauses 21 and 24.
The clause further amends section 37 of the Principal Act to change the
form that the statement of rights required to be given to a person under
the section is to take.
Section 37 currently requires the applicant for a treatment order to
provide the person to whom the application relates with a statement of
rights in an MHT approved form.
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
virtue of subsection 2 of section 3 of the Principal Act.
The Mental Health Tribunal consists of several members; and the
requirement for a statement of rights to be approved by each of those
members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of the statement of rights
required to be given under section 37.
Page 5 of 23
Clause 18 Section 38 amended (Interim treatment order)
This clause amends section 38 of the Principal Act to:
Ensure consistency of language with other sections of the Act
Confirm that an interim treatment order may provide for a
combination of treatment settings and for the admission, and re-
admission, of a patient who is subject to an interim treatment order
to those settings. This amendment is intended to facilitate treatment
orders which provide for treatment across treatment settings and
complements proposed new section 47A at clause 26, which
provides for the involuntary admission (or re-admission) to, and, if
necessary, detention in an approved hospital of an involuntary
patient in relevant circumstances.
Clause 19 Section 39 amended (Determination of application for treatment order)
This clause amends section 39 of the Principal Act to enable the Mental
Health Tribunal to make a treatment order in respect of a person only if
the Tribunal is satisfied that:
A treatment plan has been prepared for the person, and
The requirements of section 53(2) of the Principal Act appear to
have been met with respect to the treatment plan.
The amendments complement proposed new section 42 and the repeal of
section 46 at clauses 21 and 24.
The clause further amends section 39 of the Principal Act to:
Ensure consistency of language with other sections of the Principal
Act
Confirm that a treatment order may provide for a combination of
treatment settings and for the admission, and re-admission, of a
patient subject to a treatment order to those settings. This
amendment is intended to facilitate treatment orders which provide
for treatment across treatment settings and complements proposed
new section 47A at clause 26, which provides for the involuntary
admission (or re-admission) to, and, if necessary, detention in an
approved hospital of an involuntary patient in relevant circumstances.
Clause 20 Section 41 amended (Form and content of treatment order)
This clause amends section 41 of the Principal Act to require a treatment
order to be in a form approved by the President of the Tribunal.
Section 41 of the Principal Act currently requires a treatment order to be
in an MHT approved form.
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
virtue of subsection 2 of section 3 of the Principal Act.
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The Mental Health Tribunal consists of several members; and the
requirement for a statement of rights to be approved by each of those
members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of a treatment order made
under the Principal Act.
The clause further amends section 41 of the Principal Act to:
Insert a requirement that the treatment order specifies a treatment
setting. This replaces the existing requirement for a treatment order
to specify the treatment plan for a person and that the treatment,
and treatment setting under the order are to be in accordance with
the treatment plan, and
Insert a requirement that the treatment order specifies if the order
authorises the patient’s admission to, and detention in, an approved
hospital. This replaces existing subsection 3, which enables a
treatment order to include a requirement in relation to treatment
setting and detention.
The amendments complement proposed new section 42 and the
proposed repeal of section 46 at clauses 21 and 24.
Clause 21 Section 42 substituted
This clause repeals existing section 42 of the Principal Act and substitutes a
new section 42 to that Act.
Section 42. Effect of treatment order
New section 42 is intended to provide a single source of authority for the
treatment that may be given and the actions that may be taken with
respect to a person who is subject to a treatment order.
New section 42 incorporates the matters that are currently provided for in
existing section 46 of the Principal Act and complements the proposed
repeal of that section.
The intention is to provide a single source of authority for:
The treatment that may be given to an involuntary patient subject to
a treatment order, where this is the treatment specified in the order
The patient’s admission to, and if necessary, detention in, an
approved hospital, and
The patient’s escort by Mental Health Officer or police officer in
relevant circumstances.
The amendments do this by:
Removing the link between a patient’s treatment plan, if varied at all,
and the treatment that may be given to the patient under the order
Removing the link between a patient’s treatment plan, if varied at all,
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and the ability for the patient to be admitted to, and detained in, an
approved facility for the purposes of receiving treatment.
The amendments distinguish between a patient’s admission to and
detention in an approved facility. This ensures consistency with the
language used in other sections of the Principal Act.
The amendments also complement proposed new section 47A at clause
26, which provides for the involuntary admission (or re-admission) to, and,
if necessary, detention in an approved hospital of an involuntary patient in
relevant circumstances, and the inclusion of provisions clarifying the ability
for the Mental Health Tribunal to make a treatment order which provides
for a combination of treatment settings and for the admission, and re-
admission, of a patient subject to a treatment order to those settings.
Clause 22 Section 44 amended (Duration of treatment order)
This clause amends section 44 of the Principal Act to confirm that the
section is subject to section 48 of the Principal Act, which enables the
Mental Health Tribunal to renew a Treatment Order for a period not
exceeding 12 months in relevant circumstances.
Clause 23 Section 45 amended (Action to be taken by Tribunal on making treatment
order)
This clause amends section 45 of the Principal Act to change the form that
the statement of rights required to be given to a person under the section
is to take.
Section 45 of the Principal Act currently requires the Mental Health
Tribunal to provide a patient with a statement of rights in an MHT
approved form.
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
virtue of subsection 2 of section 3 of the Principal Act.
The Mental Health Tribunal consists of several members; and the
requirement for a statement of rights to be approved by each of those
members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of the statement of rights
required to be given under section 45.
Clause 23 Section 46 repealed
This clause repeals section 46 of the Principal Act.
The amendments complement proposed amendments to section 42 of
the Principal Act at clause 21.
Page 8 of 23
Clause 24 Section 47 amended (Failure to comply with treatment order)
This clause amends section 47 of the Principal Act to:
Reflect proposed new section 42 and the proposed repeal of section
46 of the Principal Act at clauses 21 and 24
Reflect proposed amendments to section 55 of the Principal Act at
clause 31 to enable urgent circumstances treatment to be authorised
by an approved medical practitioner, and
Ensure consistency of language with other sections of the Principal
Act.
Clause 26 Section 47A inserted
This clause inserts a new section 47A to the Principal Act.
Section 47A. Admission to prevent possible harm
New section 47A regulates the admission, or readmission, of a patient
who 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 to an approved hospital in relevant circumstances.
Subsection 1 establishes the criteria that must be met before a patient may
be admitted, or readmitted, to an approved hospital under section 47A.
These include that:
The 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
The patient has complied with the treatment order
The patient’s treating medical practitioner is satisfied on reasonable
grounds that, despite the patient’s compliance with the order, the
patient’s health or safety or the safety of another person has been,
or is likely to be, seriously harmed, and
The patient’s treating medical practitioner is satisfied on reasonable
grounds that the harm, or likely harm, cannot be adequately
addressed except through the patient’s admission, or readmission to,
and if necessary, detention in, an approved hospital.
Subsection 2 identifies the action that may be taken by the patient’s
treating medical practitioner if the criteria in subsection 1 are met.
Subsection 3 limits the operation of subsection 2 as it applies to children.
In particular it prevents a medical practitioner from seeking to have a
patient who is a child admitted to, and if necessary, detained in, an
approved hospital under subsection 2, unless the practitioner is satisfied
that the hospital in which the child is to be admitted, and if necessary,
detained:
Has facilities and staff for the treatment and care of the patient, and
Page 9 of 23
Is the most appropriate place to accommodate the patient in the
circumstances.
Factors relevant to this determination include whether the particular
hospital has staff who are suitably qualified and experienced to treat
children and the ability to accommodate the child in an environment that is
suitable for the child’s particular needs.
Clause 27 Section 48 amended (Renewal of treatment order)
This clause makes a number of amendments to section 48 of the Principal
Act.
The clause amends subsection 3 to require an application for renewal to
be accompanied by particulars of any recommended change in treatment,
and particulars of any recommended change to the treatment setting. The
amendments reflect proposed new section 65A of the Act at clause 38,
which requires an application for renewal of a treatment order for an
involuntary patient who has been admitted to a secure mental health unit
to be accompanied by particulars of any recommended change to the
treatment setting only.
The clause also amends subsections 4 and 9 to enable the statement of
rights required to be given to a patient under those subsections to be in a
form approved by the President of the Tribunal.
Subsections 4 and 9 of section 48 currently require a patient to be
provided with a statement of rights in an MHT approved form.
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
virtue of subsection 2 of section 3 of the Principal Act.
The Mental Health Tribunal consists of several members; and the
requirement for a statement of rights to be approved by each of those
members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of the statement of rights
required to be given under subsections 4 and 9 of section 48.
Clause 28 Section 49 amended (Discharge of treatment order by medical
practitioner or Tribunal)
This clause amends section 49 of the Principal Act to enable the discharge
paper referred to in that section to be in a form approved by the
President of the Tribunal.
Section 49 of the Principal Act currently requires the discharge of a
treatment order to be effected by means of a signed instrument in writing
in an MHT approved form (referred to as a discharge paper).
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
Page 10 of 23
virtue of subsection 2 of section 3 of the Principal Act.
The Mental Health Tribunal consists of several members; and the
requirement for the form of a discharge paper to be approved by each of
those members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of the discharge paper referred
to in section 49.
Clause 29 Section 52 amended (Form of treatment plan)
This clause amends section 52 to confirm that a treatment plan that is not
in a Chief Civil Psychiatrist approved form is not invalid merely because it is
not in that form.
Clause 30 Section 54 amended (Variation of treatment plan)
This clause amends section 54 of the Principal Act by removing the
requirement for a medical practitioner who varies a treatment plan to give
relevant documentation to the Mental Health Tribunal.
The amendments complement proposed amendments to sections 42 and
46 of the Principal Act at clauses 21 and 24, and proposed amendments to
sections 37 and 39 of the Principal Act at clauses 17 and 19 insofar as the
amendments remove references to the patient’s treatment plan, from
provisions which identify the treatment that may be given to a patient, and
the setting in which that treatment may be given.
The requirement for a varied treatment plan to be provided to the Mental
Health Tribunal is otiose within this context.
Clause 31 Section 55 amended (Urgent circumstances treatment)
This clause amends section 55 of the Principal Act to:
Enable an approved medical practitioner, instead of the Chief Civil
Psychiatrist or a delegate, to authorise urgent circumstances
treatment
Remove the requirement for an application before the authorisation
may be given
Remove the requirement for an approved medical practitioner to
have assessed the patient and to have concluded certain matters
about the patient from that assessment
Clarify associated notification and advice requirements, and
Make other associated amendments.
The intention is to enable urgent circumstances treatment to be
authorised by an approved medical practitioner if the practitioner has
concluded, from an examination of the patient, that the criteria referred to
in new subsection 3 are met, and without the need for an application or
separate examination by another approved medical practitioner.
Page 11 of 23
Clause 32 Section 56 amended (Seclusion)
This clause amends section 56 of the Principal Act to insert a requirement
for the Chief Civil Psychiatrist to issue standing orders for section 56 of the
Principal Act.
Clause 33 Section 59 amended (Transfer of involuntary patients between approved
hospitals)
This clause amends section 59 of the Principal Act to:
Clarify the ability for a transfer direction to be given orally or in
writing
Insert a requirement for a transfer direction that is given orally or in
writing to be confirmed in writing in a Chief Civil Psychiatrist
approved form as soon as practicable after it is given, and
Ensure consistency of language with other sections of the Principal
Act.
The amendments also re-order the section’s provisions to aid readability.
Clause 34 Section 60 amended (Leave of absence from approved hospital)
This clause amends section 60 of the Principal Act to clarify that leave of
absence from an approved hospital must not be granted to an involuntary
patient for a continuous period of more than 14 days.
Clause 35 Section 61 amended (Absence from approved hospital without leave or in
breach of condition, &c.)
This clause amends section 61 of the Principal Act to:
Extend the section’s application to a patient who is absent without
leave from an approved hospital, and
Insert a requirement for the patient’s treating medical practitioner to
alert the Mental Health Tribunal of the circumstances of the patient’s
absence.
Clause 36 Section 63 amended (Admission)
This clause amends section 63 of the Principal Act to confirm the effect of
a treatment order on the detention of a patient who has been admitted to
a secure mental health unit under section 63 of the Principal Act.
Clause 37 Section 65 amended (Period of detention)
This clause amends section 65 of the Principal Act to clarify that:
A patient who is subject to an assessment order may be detained in
a secure mental health unit until such time as the assessment order
expires or is discharged, subject to any orders of the Tribunal and
the application of either paragraph (a), or paragraph (b) of the
section, and
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A patient who is subject to a treatment order may be detained in a
secure mental health unit until such time as the treatment order
expires or is discharged, subject to any orders of the Tribunal and
the application of either paragraph (a), or paragraph (b) of the
section.
Clause 38 Section 65A inserted
This clause inserts a new section 65A to the Principal Act.
65A. Renewal of treatment order for patient in SMHU
New section 654A modifies the application of Division 2 of Part 3 of
Chapter 2 of the Principal Act as it applies to an involuntary patient who
has been admitted to the secure mental health unit under section 63 of
the Principal Act.
Clause 39 Section 73 amended (Transfer of forensic patients to hospitals, &c.)
This clause amends section 73 to clarify the ability for a transfer direction
issued under section 73 to be given orally or in writing.
The amendment complements proposed amendments to section 59 of
the Principal Act at clause 33 and is intended to ensure consistency of
language between the two provisions.
Clause 40 Section 78 amended (When leave of absence for forensic patients subject
to restriction orders may be granted)
This clause amends section 78 of the Principal Act to enable the statement
of rights required to be given to a patient for whom leave has been
granted or refused under this section to be in a form approved by the
President of the Tribunal.
Section 78 currently requires a patient to be provided with a statement of
rights in an MHT approved form.
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
virtue of subsection 2 of section 3 of the Principal Act.
The Mental Health Tribunal consists of several members; and the
requirement for a statement of rights to be approved by each of those
members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of the statement of rights
referred to in section 78.
Clause 41 Section 79 amended (Extension, variation and cancellation of leave of
absence)
This clause amends section 79 of the Principal Act to impose certain
obligations on the Mental Health Tribunal and the Secretary (Corrections)
in respect of the extension, or variation of conditions, of leave of absence
Page 13 of 23
granted to a forensic patient who is subject to a restriction order.
The clause amends subsection 3 to require an application for extension of
leave to be lodged at least 20 days before the leave expires. This is
relevant given the requirements imposed by new subsections 3A and 3B
and is intended to ensure that there is sufficient time for eligible persons to
be contacted, and to make a submission to the Tribunal, prior to the leave
expiring.
The clause also inserts new subsections 3A and 3B.
New subsection 3A requires:
The Mental Health Tribunal to notify the Secretary (Corrections) of
an application for an extension or variation of conditions of leave
The Secretary (Corrections) to check the Eligible Persons Register to
see whether there are any eligible persons in relation to the patient
the subject of the application and to notify any eligible persons of the
application and of their right to make a written submission in respect
of it, and
The Mental Health Tribunal to notify any other person of the
application and of that person’s right to make a written submission in
respect of it.
New subsection 3B requires the Mental Health Tribunal to consider any
submissions received under new subsection 3A before extending or
varying the conditions of leave.
The amendments reflect requirements which apply when an initial
application for leave is received and are intended to ensure that any
eligible persons and other relevant persons are advised of an application to
extend or vary the conditions of such leave, and are provided with an
opportunity to make a submission in respect of it.
Clause 42 Section 83 amended (Extension, variation and cancellation of leave of
absence)
This clause amends section 83 of the Principal Act to impose certain
obligations on the Chief Forensic Psychiatrist and the Secretary
(Corrections) in relation to the extension, or variation of conditions, of
leave of absence granted to a forensic patient who is not subject to a
restriction order.
The clause inserts new subsections 2A, 2B and 2C.
New subsection 2A requires:
The Chief Forensic Psychiatrist to notify the Secretary (Corrections)
that he or she is considering whether or not to extend, or vary the
conditions of, leave
The Secretary (Corrections) to check the Eligible Persons Register to
see whether there are any eligible persons in relation to the patient
and to notify any eligible persons that consideration is being given to
Page 14 of 23
extending, or varying the conditions of, the leave and of their right to
make a written submission in respect of it, and
The Chief Forensic Psychiatrist to notify any other person that
consideration is being given to extending, or varying the conditions
of, leave and of that person’s right to make a written submission in
respect of it.
New subsection 2B requires the Chief Forensic Psychiatrist to notify the
(Secretary) Corrections that he or she is considering whether or not to
extend, or vary, the conditions of leave at least 20 days before the leave is
due to expire. This is necessary given the requirements imposed by new
subsection 2A and is intended to ensure that there is sufficient time for
eligible persons to be contacted, and to make a submission to the Chief
Forensic Psychiatrist, prior to the leave expiring.
New subsection 3A requires the Chief Forensic Psychiatrist to consider
any submissions received under new subsection 2A before extending or
varying the conditions of leave.
The amendments reflect requirements which apply when an initial
application for leave is received and are intended to ensure that any
eligible persons and other relevant persons are advised when
consideration is being given to extending or varying the conditions of such
leave, and are provided with an opportunity to make a submission in
respect of it.
Clause 43 Section 87 amended (Urgent circumstances treatment)
This clause amends section 87 of the Principal Act to:
Enable an approved medical practitioner, instead of the Chief
Forensic Psychiatrist or a delegate, to authorise urgent circumstances
treatment
Remove the requirement for an application before the authorisation
may be given
Remove the requirement for an approved medical practitioner to
have assessed the patient and to have concluded certain matters
about the patient from that assessment
Clarify associated notification and advice requirements, and
Make other associated amendments.
The intention is to enable urgent circumstances treatment to be
authorised by an approved medical practitioner if the practitioner has
concluded, from an examination of the patient, that the criteria referred to
in new subsection 3 are met, and without the need for an application or
separate examination by another approved medical practitioner.
Page 15 of 23
Clause 44 Section 88 amended (Authorisation of treatment by Tribunal)
This clause amends section 88 of the Principal Act to enable the Tribunal’s
authorisation of treatment, and the statement of rights required to be
given to a patient under the section, to be in a form approved by the
President of the Tribunal.
Section 88 currently requires the Tribunal’s authorisation of treatment, and
the statement of rights required to be given to a patient under the section,
to be in an MHT approved form.
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
virtue of subsection 2 of section 3 of the Principal Act.
The Mental Health Tribunal consists of several members; and the
requirement for documentation to be approved by each of those
members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of the Tribunal’s authorisation of
treatment, and the statement of rights, referred to in section 88.
Clause 45 Section 91 amended (Interim authorisation of treatment by Tribunal
member)
This clause amends section 91 of the Principal Act to enable the Tribunal’s
authorisation of treatment, advice of any revocation or variation of that
authorisation, and the statement of rights required to be given to a patient
under the section, to be in a form approved by the President of the
Tribunal.
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
virtue of subsection 2 of section 3 of the Principal Act.
The Mental Health Tribunal consists of several members; and the
requirement for documentation to be approved by each of those
members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of the Tribunal’s authorisation of
treatment, advice of any revocation or variation of that authorisation, and
the statement of rights, referred to in section 91.
Clause 46 Section 94 amended (Seclusion)
This clause amends section 94 of the Principal Act to insert a requirement
for the Chief Forensic Psychiatrist to issue standing orders for section 94 of
the Principal Act.
Clause 47 Section 110 amended (Screening of persons seeking entry to SMHU)
This clause amends section 110 of the Principal Act to refer to Australian
lawyers.
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The term “Australian lawyer” is defined in the Acts Interpretation Act 1931
and the proposed amendment is intended to ensure consistency with that
Act, and with the Legal Profession Act 2007.
Clause 48 Section 136 amended (Monthly reports on voluntary inpatients)
This clause amends section 136 of the Principal Act to enable the monthly
report referred to in that section to be in a form approved by the
President of the Tribunal.
Section 136 of the Principal Act currently requires the controlling authority
of an approved facility to prepare a monthly report on the
accommodation and treatment of certain voluntary inpatients in an MHT
approved form.
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
virtue of subsection 2 of section 3 of the Principal Act.
The Mental Health Tribunal consists of several members; and the
requirement for documentation to be approved by each of those
members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of the monthly report required
to be provided under section 136.
Clause 49 Section 149 amended (Delegation)
This clause amends section 149 of the Principal Act to remove the power
to authorise the giving of urgent circumstances treatment from the
definition of restricted professional power provided in subsection 3.
The amendment complements proposed amendments to sections 55 and
87 of the Principal Act at clauses 31 and 43 to enable an approved medical
practitioner, rather than the Chief Civil Psychiatrist or Chief Forensic
Psychiatrist, to authorise urgent circumstances treatment.
Clause 50 Section 167 amended (Establishment)
This clause amends section 167 of the Principal Act to require the Tribunal
to consist of at least one person who is an Australian lawyer with not less
than five years’ standing as an Australian legal practitioner.
The intention is to ensure consistency with provisions in other Acts
covering similar functions such as the Health Practitioners Tribunal Act 2010
and Magistrates Court Act 1987, which impose similar requirements on
legal members of the judicial and quasi-judicial bodies established under
those Acts.
The amendments also reflect the Legal Profession Act 2007, which
differentiates between a person who has been admitted to the legal
profession (an Australian lawyer) and a person who is entitled to practice
(an Australian legal practitioner).
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Clause 51 Section 169 amended (Powers)
Section 169 of the Principal Act currently provides the Tribunal with the
power to issue guidelines, require reports, and approve forms.
This clause amends section 169 of the Principal Act to instead provide the
President of the Tribunal with the power to issue guidelines, require
reports and approve forms.
The Mental Health Tribunal consists of several members; and the
requirement for each of those members to be involved in these matters is
unnecessary and can be cumbersome.
Enabling the President of the Tribunal, rather than the Mental Health
Tribunal as a whole to perform these functions is consistent with other
proposed amendments to the Principal Act.
Clause 52 Section 172 amended (Interim determinations on adjournment)
This clause amends section 172 of the Principal Act to remove limitations
on the Mental Health Tribunal’s ability to adjourn proceedings.
Clause 53 Section 173 amended (Questions of law)
Section 173 of the Principal Act provides the Tribunal with the ability to
refer any question of law that may arise in a hearing or determination of
proceedings to the Supreme Court in the form of a special case for
determination.
This clause amends section 173 to enable the President of the Tribunal to
refer a question of law to the Supreme Court.
The Mental Health Tribunal consists of several members; and it is
unnecessary for each of those members to be involved every time a
question of law is referred to the Supreme Court.
Enabling the President of the Tribunal, rather than the Mental Health
Tribunal as a whole to refer a question of law is consistent with other
proposed amendments to the Principal Act.
Clause 54 Section 176 amended (Registrar and staff)
Section 176 of the Principal Act enables the Tribunal to make
arrangements with the Secretary for the services of State Servants to be
made available to the Tribunal.
This clause amends section 176 to enable the President of the Tribunal to
make arrangements with the Secretary.
The Mental Health Tribunal consists of several members; and it is
unnecessary for each of those members to be involved in the making of
arrangements under section 176 of the Principal Act.
Enabling the President of the Tribunal, rather than the Mental Health
Tribunal as a whole to make arrangements with the Secretary is consistent
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with other proposed amendments to the Principal Act.
Clause 55 Clause 178 amended (Annual report)
Section 178 of the Principal Act equires the Tribunal to provide the
Minister for Justice with an annual report.
This clause amends section 178 to require the President of the Tribunal to
provide the Minister with an annual report.
The Mental Health Tribunal consists of several members; and it is
unnecessary for each of those members to be involved in the act of
providing an annual report to the Minister for Justice.
Enabling the President of the Tribunal, rather than the Mental Health
Tribunal as a whole to provide the Minister with an annual report is
consistent with other proposed amendments to the Principal Act.
Clause 56 Section 179 amended (The Tribunal’s review function)
This clause amends section 179 of the Principal Act to refer specifically to
the authorisation of treatment for any forensic patient.
The amendment complements the proposed insertion of new section
192A to the Principal Act at clause 60.
Clause 57 Section 180 amended (Review of assessment order)
This clause amends section 180 of the Principal Act to enable the
statement of rights required to be given to a patient under that section to
be in a form approved by the President of the Tribunal.
Section 180 currently requires the Tribunal to give a patient a statement of
rights in an MHT approved form.
A document that is in an MHT approved form is a document that has
been provided or approved by the Mental Health Tribunal. This is by
virtue of subsection 2 of section 3 of the Principal Act.
The Mental Health Tribunal consists of several members; and the
requirement for a statement of rights to be approved by each of those
members is unnecessary and can be cumbersome.
The intention is to enable the President of the Tribunal, rather than the
Tribunal as a whole, to approve the form of the statement of rights
required to be provided under section 180.
Clause 58 Section 181 amended (Review of treatment order)
This clause amends the timeframes associated with the review of
treatment orders by the Mental Health Tribunal.
The clause:
Amends subsection 1(a) and (b) to require the Tribunal to review a
treatment order within 60 days after it is made and again within 180
days after it is made, if the order is still in effect at the relevant time
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Amends subsection (c) to require the Tribunal to review a treatment
order at further intervals not exceeding 180 days, for so long as the
order remains in effect
Amends subsection 1(d) to complement amendments to section 42
of the Principal Act at clause 21
Inserts a new subsection 2A confirming that the Tribunal may vary a
treatment order without conducting a review
Amends subsection 3(a) to require the Tribunal to give a patient a
copy of rights in a form approved by the President of the Tribunal,
rather than by the Tribunal as a whole, and
Amends subsections 1(d) and (4) to ensure consistency of language
with other sections of the Principal Act.
Clause 59 Section 191 amended (Review of determination relating to leave of
absence)
This clause amends 191 of the Principal Act to clarify the maximum
continuous period for which the Tribunal may grant an involuntary patient
leave, or direct that an involuntary patient may be granted leave, on
review.
The amendments complement proposed amendments to section 60 of
the Principal Act at clause 34.
Clause 60 Section 192A inserted
This clause inserts a new section 192A to the Principal Act.
Section 192A. Tribunal to review forensic patient’s treatment authorisation
New section 192A regulates the review, by the Mental Health Tribunal, of
the authorisation of treatment for a forensic patient.
Subsection 1:
Requires the Tribunal to review the authorisation of treatment for a
forensic patient within 60 days, and 180 days after the authorisation
is made, if the authorisation is still in effect at the relevant time
Requires the Tribunal to review the authorisation at further intervals
not exceeding 180 days for so long as the authorisation remains in
effect
Enables the Tribunal to review the authorisation at any other time
on its own motion or application of a person with standing
Requires the Tribunal to conduct a review before a division of three
members
Enables the Tribunal to conduct a review without a hearing, and
Identifies the actions that the Tribunal may take on review.
Subsection 2 identifies the actions that the Tribunal is required to take
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after reviewing an authorisation.
The intention is to establish a review framework for the authorisation of
treatment of a forensic patient that is similar to the review framework that
applies to treatment orders under section 181 of the Principal Act.
Clause 61 Section 195 amended (Form of applications for review, &c.)
This clause amends section 195 of the Principal Act to:
Require an application to the Tribunal to be in a form approved by
the President of the Tribunal, rather than by the Tribunal as a whole
Remove requirements around the matters that must be included in
an application to the Tribunal, and
Refer to an Australian lawyer. The term “Australian lawyer” is
defined in the Acts Interpretation Act 1931 and the proposed
amendment is intended to ensure consistency with that Act, and
with the Legal Profession Act 2007.
Clause 62 Section 197 amended (On-paper reviews by Registrar)
This clause amends section 197 of the Principal Act to complement
proposed amendments to section 181 of the Principal Act at clause 58 and
the proposed inclusion of new section 192A to the Act at clause 60.
The intention is to make it clear that the President of the Tribunal may not
authorise the Registrar to review a 60-day or 180-day review of a
treatment order, or a 60-day or 180-day review of the authorisation of
treatment for a forensic patient.
Clause 63 Section 199 amended (Evidence of Tribunal determination or direction)
This clause amends section 199 of the Principal Act to extend the section’s
application to a direction of the Tribunal.
Clause 64 Section 212 amended (Special powers of ambulance officers and medical
practitioners acting as MHO)
This clause amends section 212 of the Principal Act to extend the section’s
application to approved medical officers.
The intention is to enable a medical practitioner who is also approved as a
Mental Health Officer under the Principal Act to sedate a patient who is
being transported by ambulance in relevant circumstances.
Clause 65 Section 213 amended (Unlawful treatment)
The Principal Act operates alongside other laws which provide authority
for the provision of treatment to people with a mental illness, including the
common law.
This clause amends section 213 of the Principal Act to exclude treatment
that is authorised under the Principal Act or any other law, from the
category of unlawful treatments the subject of the section.
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The proposed amendments complement proposed amendments to
section 16 of the Principal Act at clause 10.
Clause 66 Section 221 amended (Delegation by controlling authority)
This clause amends section 221 of the Principal Act to provide the
controlling authority of an approved facility with the ability to delegate his
or her responsibilities under Acts other than the Mental Health Act 2013.
Clause 67 Section 224 substituted
This clause inserts new sections 224 and 224A to the Principal Act.
Section 224. Correction of orders, &c. where validity not affected
New section 224 regulates the correction of an error in an order,
determination, direction or other document produced under the Principal
Act in circumstances where the validity of the order, determination,
direction or other document is not affected by the error.
The new section clarifies when the validity of an order, determination,
direction or other document is not affected by an error and identifies the
person or body who may correct an error in the order, determination,
direction or other document.
Section 224A. Correction of orders, &c. where validity affected
New section 224A regulates the correction of an error in an order,
determination, direction or other document made by the Tribunal under
the Principal Act in circumstances where the validity of the order,
determination, direction or other document is affected by the error.
The new section enables the Tribunal to correct an error in an order,
determination, direction or other document that affects the validity of the
order, determination, direction or other document on its own motion or
on application and regulates the manner in which this may occur.
Clause 68 Section 226 substituted
This clause inserts a new section 226 to the Principal Act.
Section 226. Service of documents
New section 226 regulates the giving or service of a notice or other
document that is required to be given or served under the Principal Act.
In particular the new section requires a notice or other document that is
required to be given or served to a voluntary inpatient, involuntary patient
or forensic patient under the Principal Act to be given to the patient.
The new section also defines the term “give” to include causing the notice
or other document to be given.
The new section complements proposed amendments to section 3 at
clause 5, to remove the meaning of “give”.
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Clause 69 Schedule 3 amended (Membership of Tribunal)
This clause amends:
Clause (7) of Schedule 3 to enable the Governor to remove a
member from office if the member fails, without the permission of
the President of the Tribunal, to make himself or herself available to
attend to Tribunal matters for a period longer than three months
Clause 11 of Schedule 3 to enable the President of the Tribunal to
authorise a person with special expertise to assist the Tribunal with
relevant matters.
Clause 70 Schedule 4 amended (Proceedings of Tribunal)
This clause amends clause 11 of Schedule 4 to enable the President of the
Tribunal to publish a record of its proceedings.
Clause 71 Repeal of Act
This clause provides for the Act’s automatic repeal one year after all of the
Act’s provisions have commenced.
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