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MENTAL HEALTH ACT 2014 - NOTES

Version No. 016

No. 26 of 2014
Version incorporating amendments as at
24 October 2017

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Version No. 016

Mental Health Act 2014

No. 26 of 2014

Version incorporating amendments as at
24 October 2017

Endnotes

    1     General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

    Minister's second reading speech—

    Legislative Assembly: 20 February 2014

    Legislative Council: 13 March 2014

    The long title for the Bill for this Act was "A Bill for an Act to provide a legislative scheme for the treatment of persons with mental illness, to repeal the Mental Health Act 1986, to make consequential amendments to the Sentencing Act 1991, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and other Acts and for other purposes."

The Mental Health Act 2014 was assented to on 8 April 2014 and came into operation as follows:

Section 2(2) and (3) on 30 June 2014: Special Gazette (No. 200) 24 June 2014 page 2; sections 1, 2(1), 3–455 and Schedule on 1 July 2014: section 2(1); section 456 on 1 July 2014: section 2(2); section 457 on 1 July 2015: s. 2(3).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

    2     Table of Amendments

This publication incorporates amendments made to the Mental Health Act 2014 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Mental Health Act 2014, No. 26/2014

Assent Date:

8.4.14

Commencement Date:

Ss 372(4), 428 on 1.7.14: s. 2(1); s. 456 on 1.7.14: s. 2(2); s. 457 on 1.7.15: s. 2(3)

Note:

S. 428 repealed Pt 17 (ss 429–457), the Schedule on 1.7.15; s. 372(4) provided that s. 372 expired on 1.7.16

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Criminal Organisations Control and Other Acts Amendment Act 2014, No. 55/2014

Assent Date:

26.8.14

Commencement Date:

Ss 174, 175 on 27.8.14: s. 2(1); s. 150 on 31.10.14: Special Gazette (No. 330) 23.9.14 p. 1

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Powers of Attorney Act 2014, No. 57/2014

Assent Date:

26.8.14

Commencement Date:

S. 158 on 1.9.15: s. 2(2)

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Privacy and Data Protection Act 2014, No. 60/2014

Assent Date:

2.9.14

Commencement Date:

S. 140(Sch. 3 item 30) on 17.9.14: Special Gazette (No. 317) 16.9.14 p. 1

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014, No. 61/2014

Assent Date:

9.9.14

Commencement Date:

S. 169 on 1.3.16: s. 2(3)

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Mental Health Amendment Act 2015, No. 15/2015 (as amended by No. 52/2017)

Assent Date:

12.5.15

Commencement Date:

Ss 25(2), 28, 29 on 13.5.15: s. 2(1); ss 4–24, 25(1), 25(3), 26, 27, 30–33, 35, 36 on 25.11.15: Special Gazette (No. 363) 24.11.15

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Statute Law Revision Act 2015, No. 21/2015

Assent Date:

16.6.15

Commencement Date:

S. 3(Sch. 1 item 34) on 1.8.15: s. 2(1)

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Access to Medicinal Cannabis Act 2016, No. 20/2016

Assent Date:

26.4.16

Commencement Date:

S. 148 on 14.9.16: Special Gazette (No. 284) 13.9.16 p. 1

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Health Complaints Act 2016, No. 22/2016

Assent Date:

3.5.16

Commencement Date:

S. 238 on 1.2.17: s. 2(2)

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017, No. 20/2017

Assent Date:

16.5.17

Commencement Date:

S. 134(Sch. 1 item 12) on 1.9.17: s. 2(3)

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

    3     Amendments Not in Operation

This publication does not include amendments made to the Mental Health Act 2014 by the following Act/s.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Medical Treatment Planning and Decisions Act 2016, No. 69/2016

Assent Date:

29.11.16

Commencement Date:

Ss 106−122 not yet proclaimed

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Justice Legislation Amendment (Protective Services Officers and Other Matters) Act 2017, No. 45/2017

Assent Date:

26.9.17

Commencement Date:

S. 56 not yet proclaimed

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

Health Legislation Amendment (Quality and Safety) Act 2017, No. 52/2017

Assent Date:

24.10.17

Commencement Date:

Ss 80‒88 not yet proclaimed

Current State:

This information relates only to the provision/s amending the Mental Health Act 2014

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

At the date of this publication, the following provisions amending the Mental Health Act 2014 were Not in Operation:

Amending Act/s:    

Medical Treatment Planning and Decisions Act 2016, No. 69/2016

        106     Section 90 substituted

For section 90 of the Mental Health Act 2014 substitute

        "     90     Definitions

In this Division—

"other applicable person" means a person who—

        (a)     is not a patient; and

        (b)     is not a young person;

"young person" means a person who is under the age of 18 years.".

        107     Meaning of a course of electroconvulsive treatment

    (1)     In section 91(1) of the Mental Health Act 2014, for "or young person" (where twice occurring) substitute ", young person or other applicable person".

    (2)     In section 91(3) of the Mental Health Act 2014

        (a)     in paragraph (c), omit "patient who is not a young person or the young";

        (b)     in paragraph (d), for "treatment." substitute "treatment;";

        (c)     after paragraph (d) insert

    "(e)     in the case of an other applicable person, the person's medical treatment decision maker withdraws consent to continue with the course of electroconvulsive treatment.".

        108     When may electroconvulsive treatment be performed?

After section 92(2) of the Mental Health Act 2014 insert

    "(3)     Electroconvulsive treatment may be performed on an other applicable person if the Tribunal has granted an application for the performance of a course of electroconvulsive treatment made under section 94A.".

        109     Application to perform electroconvulsive treatment on a young person

In section 94(3)(d) of the Mental Health Act 2014, after "if" insert "the".

        110     New section 94A inserted

After section 94 of the Mental Health Act 2014 insert

        "94A     Application to perform electroconvulsive treatment on an other applicable person

    (1)     A psychiatrist may apply to the Tribunal to perform a course of electroconvulsive treatment on an other applicable person who does not have capacity to give informed consent to that electroconvulsive treatment if the psychiatrist is satisfied in the circumstances that there is no less restrictive way for the person to be treated and—

        (a)     the person has an instructional directive giving informed consent to electroconvulsive treatment; or

        (b)     if the person does not have a relevant instructional directive, the person's medical treatment decision maker gives informed consent in writing to the electroconvulsive treatment.

    (2)     In determining under subsection (1) whether there is no less restrictive way for an other applicable person to be treated, the psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all of the following—

        (a)     the views and preferences of the person in relation to electroconvulsive treatment and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes the person would like to achieve;

        (b)     any values directive of the person;

        (c)     the views of the person's medical treatment decision maker or support person (if any);

        (d)     the views of a carer of the person, if the psychiatrist is satisfied that the decision to perform a course of electroconvulsive treatment will directly affect the carer and the care relationship;

        (e)     the likely consequences for the person if the electroconvulsive treatment is not performed;

        (f)     any psychiatric opinion given by another psychiatrist that has been given to the psychiatrist making the application.

    (3)     A psychiatrist may make a further application under subsection (1) during or after the performance of a course of electroconvulsive treatment on an other applicable person.".

        111     Listing of electroconvulsive treatment applications by Tribunal

    (1)     In section 95(1), (2) and (3) of the Mental Health Act 2014, for "or 94" substitute ", 94 or 94A".

    (2)     In section 95(2)(a), (b) and (c) of the Mental Health Act 2014, omit "patient or young".

        112     Powers of Tribunal in respect of electroconvulsive treatment application

    (1)     After section 96(2) of the Mental Health Act 2014 insert

    "(2A)     In relation to an application under section 94A, the Tribunal must—

        (a)     grant the application if the Tribunal is satisfied that     the other applicable person does not have capacity to give informed consent to the performance of the course of electroconvulsive treatment and that there is no less restrictive way for the person to be treated and that either—

              (i)     the person has an instructional directive giving informed consent to electroconvulsive treatment; or

              (ii)     the person's medical treatment decision maker has given informed consent in writing to the treatment; or

        (b)     refuse to grant the application if the Tribunal is not satisfied as to any of the matters referred to in paragraph (a).".

    (2)     In section 96(3) of the Mental Health Act 2014

        (a)     for "or (2) whether there is no less restrictive way for a patient who is not a young person or for a young" substitute ", (2) or (2A) whether there is no less restrictive way for the";

        (b)     in paragraph (b)—

              (i)     for "of the" substitute "of a";

              (ii)     for "94(3)." substitute "94(3); and";

        (c)     after paragraph (b) insert

    "(c)     in respect of an other applicable person, the matters specified in section 94A(2).".

    (3)     In section 96(4) of the Mental Health Act 2014

        (a)     omit "patient who is not a young person or the young";

        (b)     for "or 94" substitute ", 94 or 94A";

        (c)     after paragraph (c) insert

    "(ca)     any medical treatment decision maker who gave informed consent under section 96(2A)(a)(ii);

        (cb)     any support person of the young person or other applicable person on whom the electroconvulsive treatment was proposed to be performed;";

        (d)         in paragraph (f), omit "patient or young".

        113     Order approving electroconvulsive treatment

In section 97 of the Mental Health Act 2014 omit "patient who is not a young person or on a young".

        114     Electroconvulsive treatment must not be performed in certain circumstances

After section 98(2) of the Mental Health Act 2014 insert

    "(3)     Electroconvulsive treatment must not be performed on an other applicable person if, at any time before or during the course of electroconvulsive treatment—

        (a)     the person develops the capacity to give informed consent and does not consent to the electroconvulsive treatment; or

        (b)     the person who gave informed consent under section 96(2A)(a)(ii) withdraws consent.".

        115     Use of electroconvulsive treatment to be reported to chief psychiatrist

In section 99 of the Mental Health Act 2014, for "or young person (irrespective of whether the person or young person is a patient)" substitute "under this Division".

        116     Definitions

In section 3(1) of the Mental Health Act 2014

        (a)     for the definition of medical treatment substitute

""medical treatment" has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016, but does not include treatment;";

        (b)     in the definition of "Tribunal", for "152." substitute "152;";

        (c)     insert the following definitions—

""instructional directive" has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016;

"medical treatment decision maker" has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016;

"support person" has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016;

"values directive" has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016.".

        117     What is medical treatment?

Section 7 of the Mental Health Act 2014 is repealed.

        118     Meaning of informed consent

After section 69(3) of the Mental Health Act 2014 insert

    "(4)     Without limiting anything in subsections (1), (2) or (3), for the purposes of medical treatment that is given in accordance with this Act, a person may give informed consent by instructional directive.".

        119     Who may consent to medical treatment if patient does not have capacity to give informed consent?

    (1)     In section 75(1) of the Mental Health Act 2014

        (a)     for paragraph (a) substitute

    "(a)     the patient's appointed medical treatment decision maker within the meaning of the Medical Treatment Planning and Decisions Act 2016;";

        (b)     paragraph (d) is repealed.

    (2)     At the foot of section 75 of the Mental Health Act 2014 insert

"Note

See section 53 of the Medical Treatment Planning and Decisions Act 2016 in respect of medical treatment in an emergency.".

        120     Matters authorised psychiatrist must have regard to if consenting to medical treatment of patient

In section 76(2) of the Mental Health Act 2014

        (a)     after paragraph (a) insert

    "(ab)     any relevant values directive given by the patient;";

        (b)     after paragraph (e) insert

    "(ea)     the views of the patient's support person;".

        121     Urgent medical treatment

Section 77 of the Mental Health Act 2014 is repealed.

        122     Disclosure of health information

For section 346(2)(p) of the Mental Health Act 2014 substitute

    "(p)     the disclosure is—

              (i)     made to the medical treatment decision maker of the person to whom the health information relates; and

              (ii)     reasonably required in connection with the performance of a duty or the exercise of a power by the medical treatment decision maker;

        (pa)     the disclosure is—

              (i)     made to a support person of the person to whom the health information relates; and

              (ii)     reasonably required in connection with the performance of a duty or the exercise of a power by the support person;".

——

Justice Legislation Amendment (Protective Services Officers and Other Matters) Act 2017, No. 45/2017

        56     Mental Health Act 2014

After section 351(4A) of the Mental Health Act 2014 insert

    "(4B)                         A protective services officer may only exercise the power to apprehend under this section in relation to a person who is at, or in the vicinity of, a designated place.".

——

Health Legislation Amendment (Quality and Safety) Act 2017, No. 52/2017

        80     Objectives

    (1)     In section 10(h) of the Mental Health Act 2014, for "illness." substitute "illness;".

    (2)     After section 10(h) of the Mental Health Act 2014 insert

    "(i)     to promote continuous improvement in the quality and safety of the mental health services provided by mental health service providers.".

        81     Functions of the Secretary

    (1)     In section 118(1)(b) of the Mental Health Act 2014, after "that are" insert "person‑centred,".

    (2)     For section 118(1)(d) of the Mental Health Act 2014 substitute

    "(d)     to collect, compile and analyse data about the provision of mental health services for the purposes of—

              (i)     funding, managing, planning, monitoring, evaluating and improving mental health services provided by mental health service providers; and

              (ii)     research into mental illness, mental health and related fields;".

    (3)     In section 118(1)(e) of the Mental Health Act 2014, after "providers" insert "and the quality and safety of the mental health services they provide".

        82     Functions of the Institute

For section 330(h) of the Mental Health Act 2014 substitute

    "(h)     to promote continuous improvement in the quality and safety of forensic mental health and related services provided in Victoria;

        (ha)     to promote innovations in the provision of forensic mental health and related services in Victoria;".

        83     Powers of the Institute

    (1)     In section 331(3)(b) of the Mental Health Act 2014, for "manner." substitute "manner; and".

    (2)     After section 331(3)(b) of the Mental Health Act 2014 insert

    "(c)     the need to ensure that it continuously strives—

              (i)     to improve the quality and safety of the services it provides; and

              (ii)     to promote innovation.".

        84     Board of directors

In section 332(2)(b) of the Mental Health Act 2014, for "Institute and" substitute "Institute to perform its functions and exercise its powers and for".

        85     New section 332A inserted

After section 332 of the Mental Health Act 2014 insert

        "332A     Functions of the board

The functions of the board of the Institute are—

        (a)     to develop statements of priorities and strategic plans for the operation of the Institute and to monitor compliance with those statements and plans; and

        (b)     to develop financial and business plans, strategies and budgets to ensure the accountable and efficient performance of the functions of the Institute and the long term financial viability of the Institute; and

        (c)     to monitor the performance of the Institute to ensure that—

              (i)     the Institute operates within its budget; and

              (ii)     its audit and accounting systems accurately reflect the financial position and viability of the Institute; and

              (iii)     the Institute adheres to—

    (A)     its financial and business plans; and

    (B)     its strategic plans; and

    (C)     its statements of priorities; and

              (iv)     effective and accountable risk management systems are in place; and

              (v)     effective and accountable systems are in place to monitor and improve the quality, safety and effectiveness of mental health services provided by the Institute; and

              (vi)     any problems identified with the quality, safety or effectiveness of the mental health services provided are addressed in a timely manner; and

              (vii)     the Institute continuously strives to improve the quality and safety of the mental health services it provides and to promote innovation; and

              (viii)     committees established or appointed by the Institute operate effectively; and

        (d)     during each financial year, to monitor the performance of the chief executive officer of the Institute (including at least one formal assessment in relation to that financial year), having regard to the objectives, priorities and key performance outcomes specified in the Institute's statement of priorities under section 344; and

        (e)     to develop arrangements with other relevant agencies and service providers to enable effective and efficient service delivery and continuity of care; and

        (f)     to establish a finance committee, an audit committee and a quality and safety committee; and

        (g)     to provide appropriate training for directors.".

        86     Appointment of directors

After section 334(2) of the Mental Health Act 2014 insert

    "(3)     In making a recommendation to the Governor in Council, the Minister must have regard to any prescribed matters.".

        87     New sections 339A, 339B, 339C and 339D inserted

After section 339 of the Mental Health Act 2014 insert

        "339A     Guidelines of Minister

The Minister may publish in the Government Gazette guidelines relating to the role and procedure of the board and how it may carry out its functions.

        339B     Appointment of delegate to board

    (1)     The Minister may appoint not more than 2 delegates to the board if the Minister considers that such an appointment will assist the board to improve the performance of the Institute.

    (2)     A delegate is not a director of the board.

    (3)     In determining if an appointment of a delegate under subsection (1) will assist the board to improve the performance of the Institute, the Minister must have regard to—

        (a)     the financial performance of the Institute; and

        (b)     the quality and safety of the mental health services provided by the Institute; and

        (c)     whether the board has requested such an appointment.

    (4)     The Minister may appoint a delegate irrespective of whether the board has requested such an appointment.

    (5)     The instrument of appointment of a delegate—

        (a)     must be published in the Government Gazette; and

        (b)     must specify the terms and conditions of appointment; and

        (c)     may specify any remuneration to which the delegate is entitled.

    (6)     A delegate—

        (a)     subject to subsections (7) and (8), holds office for the period specified in the instrument of appointment, being a period of not more than 12 months from the date of appointment; and

        (b)     is eligible for re-appointment; and

        (c)     is entitled to be reimbursed reasonable expenses incurred in holding office as delegate; and

        (d)     is in respect of the office of delegate subject to the Public Administration Act 2004 (other than Part 3 of that Act).

    (7)     A delegate may resign by writing signed by that person and delivered to the Minister.

    (8)     The Minister may revoke the appointment of a delegate.

        339C     Functions of delegate

The functions of a delegate to the board are—

        (a)     to attend meetings of the board and observe its decision-making processes; and

        (b)     to provide advice or information to the board to assist it in understanding its obligations under this Act; and

        (c)     to advise the Minister and the Secretary on any matter relating to the Institute or the board.

        339D     Obligations of board to delegate

The board must—

        (a)     permit a delegate appointed to the board to attend any meeting of the board or any meeting of its committees; and

        (b)     provide a delegate appointed to the board with information or a copy of any notice or other document provided to the directors of the board or to the members of any of the board's committees at the same time as the information, notice or other document is provided to the directors or members.".

        88     Chief executive officer

    (1)     In section 340(1) of the Mental Health Act 2014

        (a)     for "The" substitute "Subject to the Secretary's approval, the";

        (b)     in paragraph (b) omit ", subject to the Secretary's approval,".

    (2)     After section 340(3)(c) of the Mental Health Act 2014 insert

    "(ca)     to implement effective and accountable systems to monitor and improve the services provided by the Institute to ensure continuous improvement in the quality and safety of the services it provides; and

        (cb)     to ensure that any problem in relation to the quality, safety or effectiveness of services provided by the Institute are addressed in a timely manner; and

        (cc)     to ensure that the Institute continuously strives—

              (i)     to improve the quality and safety of the services it provides; and

              (ii)     to promote innovation; and

        (cd)     to manage the Institute in accordance with—

              (i)     the financial and business plans, strategies and budgets developed by the board; and

              (ii)     the instructions of the board; and

        (ce)     to ensure that the board and the committees established or appointed by the board are assisted and provided with relevant information to enable them to perform their functions effectively and efficiently; and

        (cf)     to ensure that the board's decisions are implemented effectively and efficiently throughout the Institute; and

        (cg)     to inform the board in a timely manner of any issues of public concern or risks that affect or may affect the Institute; and

        (ch)     to inform the board, the Secretary and the Minister without delay of any significant issues of public concern or significant risks affecting the Institute.".

    4     Explanatory details


[1] S. 306 (repealed): The amendments to section 306(3)(e) proposed by section 169(2)(3) of the Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014, No. 61/2014 are not included in this publication due to the earlier repeal of section 306 by section 29 of the Mental Health Amendment Act 2015, No. 15/2015.



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