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MENTAL HEALTH AND RELATED SERVICES AMENDMENT BILL 2011

Serial 189
Mental Health and Related Services Amendment Bill 2011
Mr Vatskalis

A Bill for an Act to amend the Mental Health and Related Services Act

NORTHERN TERRITORY OF AUSTRALIA

MENTAL HEALTH AND RELATED SERVICES AMENDMENT ACT 2011

____________________

Act No. [ ] of 2011

____________________

Table of provisions

6A Complex cognitive impairment and related terms
8A Application of Criminal Code
15A Involuntary admission on grounds of complex cognitive impairment
23A Authorised officers
Division 4 Involuntary admission on grounds of complex cognitive impairment

Subdivision 1 Interpretation

44A Meaning of treatment management plan

Subdivision 2 Tribunal authorised planned admissions

44B Application of Subdivision

44C Application for order for involuntary admission

44D Notice of application

44E Decision on application

44F Content of order

44G Regular examinations

44H Discharge
65 Clinical trials and experimental treatments
138 Publication of identifying information

139 Confidentiality of information – Tribunal members, staff and authorised officers
160 Documents relating to examination, admission and treatment
170 Regulations

NORTHERN TERRITORY OF AUSTRALIA

____________________

Act No. [ ] of 2011

____________________

An Act to amend the Mental Health and Related Services Act

[Assented to [ ] 2011]

[Second reading [ ] 2011]

The Legislative Assembly of the Northern Territory enacts as follows:

1 Short title

This Act may be cited as the Mental Health and Related Services Amendment Act 2011.

2 Commencement

This Act commences on the day fixed by the Administrator by Gazette notice.

3 Act amended

This Act amends the Mental Health and Related Services Act.

4 Section 4 amended

(1) Section 4

omit

, unless the contrary intention appears

(2) Section 4, definitions Agency, criteria, Director of Correctional Services, informed consent, involuntary patient, mental illness, prison officer, prisoner and treatment

omit

(3) Section 4

insert (in alphabetical order)

authorised officer means a person holding an appointment as an authorised officer under section 23A.

behavioural disturbance, see section 6A(3).

cognitive impairment, see section 6A(2).

complex cognitive impairment, see section 6A(1).

corresponding law, for Part 18, Division 2, see section 151.

criteria, for:

(a) the involuntary admission of a person on the grounds of:

(i) mental illness – see section 14; or

(ii) mental disturbance – see section 15; or

(iii) complex cognitive impairment – see section 15A; or

(b) the involuntary treatment or care of a person in the community – see section 16.

existing involuntary patient, for Part 6, Division 4, see section 44C(2).

informed consent, see section 7.

interstate transfer order, for Part 18, Division 2, see section 151.

involuntary detention application, see section 129(1A).

involuntary patient, means a person admitted to an approved treatment facility under Part 6.

mental health order, for Part 18, Division 2, see section 151.

mental illness, see section 6.

participating State or Territory, for Part 18, Division 2, see section 151.

prison officer means a person holding or occupying the office of prison officer under the Prisons (Correctional Services) Act.

prisoner, see section 5 of the Prisons (Correctional Services) Act.

recommendation for psychiatric examination means a recommendation made under section 34.

treatment, in relation to mental illness, mental disturbance or complex cognitive impairment, means things done in the course of the exercise of professional skills:

(a) to remedy the illness, disturbance or impairment; or

(b) to lessen the effects or the pain and suffering caused by the illness, disturbance or impairment.

treatment management plan, for Part 6, Division 4, see section 44A.

5 Section 6A inserted

After section 6

insert

6A Complex cognitive impairment and related terms

(1) A person has a complex cognitive impairment if the person has a cognitive impairment with a behavioural disturbance.

(2) A person has a cognitive impairment if the person has an intellectual impairment, neurological impairment or acquired brain injury (or any combination of these) that:

(a) is, or is likely to be, permanent; and

(b) results in substantially reduced capacity in at least one of the following:

(i) self-care or management;

(ii) decision making or problem solving;

(iii) communication or social functioning.

(3) A person has a behavioural disturbance if the person's mental condition has deteriorated to the extent the person is behaving in an aggressive manner or is engaging in seriously irresponsible conduct.

6 Section 8A inserted

After section 8, in Part 1

insert

8A Application of Criminal Code

Part IIAA of the Criminal Code applies to an offence against this Act.

Note for section 8A

Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

7 Section 15A inserted

After section 15

insert

15A Involuntary admission on grounds of complex cognitive impairment

The criteria for the involuntary admission of a person on the grounds of complex cognitive impairment are:

(a) the person is an adult who does not fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance; and

(b) the person has significant cognitive impairment; and

(c) unless the person receives treatment and care at an approved treatment facility, the person:

(i) is likely to cause serious harm to himself or herself or to someone else; or

(ii) will represent a substantial danger to the general community; or

(iii) is likely to suffer serious mental or physical deterioration; and

(d) the person is likely to benefit from the treatment and care; and

(e) the person is not capable of giving informed consent to the treatment and care; and

(f) there is no less restrictive way of ensuring the person receives the treatment and care.

8 Section 17 amended

Section 17(4)

omit, insert

(4) A person given a direction under subsection (3) must not engage in conduct that results in a contravention of the direction.

Maximum penalty for subsection (4): 40 penalty units.

9 Section 22 amended

Section 22(3)(a)

omit, insert

(a) is a medical practitioner who holds specialist registration under the Health Practitioner Regulation National Law in the recognised specialty of psychiatry; or

10 Section 23A inserted

After section 23

insert

23A Authorised officers

(1) The CEO may, in accordance with approved procedures, appoint a public sector employee employed in the Agency to be an authorised officer.

(2) An authorised officer has the functions and powers conferred by this Act.

11 Section 29 amended

(1) Section 29(1)

omit, insert

(1) Subject to section 30, a person admitted as a voluntary patient in an approved treatment facility may discharge himself or herself from the facility at any time.

Note for subsection (1)

Sections 89 and 90 provide for appropriate information and arrangements relating to follow-up care to be given to persons being discharged.

(2) After section 29(4)

insert

(5) If the person is admitted under section 27, the authorised psychiatric practitioner must, as soon as practicable after the person is discharged, inform the person's guardian about the discharge.

12 Section 34 amended

Section 34(3)(a)

omit

an assessment

insert

psychiatric examination

13 Section 44 amended

(1) Section 44(2)(b)

omit, insert

(a) fulfils the criteria for involuntary admission on the grounds of mental illness, the authorised psychiatric practitioner must admit the person as an involuntary patient on those grounds; or

(b) fulfils the criteria for involuntary admission on the grounds of complex cognitive impairment, the authorised psychiatric practitioner must:

(i) continue to detain the person under section 42(1); and

(ii) notify an authorised officer within one day after the examination; or

(2) After section 44(2)

insert

Note for subsection (2)(b)

Under Part 6, Division 4, an application may be made by an authorised psychiatric practitioner and authorised officer for involuntary admission on the grounds of complex cognitive impairment.

(3) Section 44(4)

omit, insert

(4) If an authorised psychiatric practitioner considers a person to be released under subsection (2)(d) may cause serious harm to someone else on release, the practitioner must, at least 12 hours before the person's release, notify:

(a) the Commissioner of Police or a police officer nominated by the Commissioner for this subsection; and

(b) if practicable – the persons who may be in danger.

14 Part 6, Division 4 inserted

After section 44

insert

Division 4 Involuntary admission on grounds of complex cognitive impairment

Subdivision 1 Interpretation

44A Meaning of treatment management plan

(1) A treatment management plan for a person is a document prepared by an authorised psychiatric practitioner and authorised officer stating the following:

(a) the person's name and residential address (if any);

(b) the complex cognitive impairment the person has;

(c) details of the proposed assessment of the person sought to be undertaken;

(d) the approved treatment facility where the assessment is to be undertaken and entities involved in the assessment;

(e) the approved treatment facility and entities involved in implementing the plan, including those treating or caring for the person under the plan;

(f) the proposed or expected medication or treatment and care the person is to receive under the plan;

(g) the rehabilitation, support and other services the person is to receive under the plan, including arrangements for the person's support and supervision at the end of the person's admission;

(h) other matters the authorised psychiatric practitioner and authorised officer consider appropriate.

(2) In this section:

entities includes the Agency and units of the Agency.

Subdivision 2 Tribunal authorised planned admissions

44B Application of Subdivision

This Subdivision applies if an authorised psychiatric practitioner and authorised officer form the opinion a person fulfils the criteria for involuntary admission on the grounds of complex cognitive impairment.

44C Application for order for involuntary admission

(1) As soon as practicable after forming the opinion, the authorised psychiatric practitioner and authorised officer must apply for a Tribunal order for the person's involuntary admission and detention on the grounds of complex cognitive impairment.

(2) However, if the person is an involuntary patient admitted on the grounds of mental disturbance (an existing involuntary patient), the application must be made before the date the Tribunal is required to review the patient's admission on those grounds (the review date).

(3) The application must:

(a) be made in the approved form; and

(b) unless the person is an existing involuntary patient, be accompanied by a treatment management plan for the person prepared by the applicants.

(4) If the person is an existing involuntary patient:

(a) the applicants must, before the hearing, prepare and lodge with the Tribunal a treatment management plan for the person; and

(b) the Tribunal must hear the application on or before the review date.

Note for section 44C

Practice directions issued by the Tribunal under section 129(2A) apply to the lodgement of the treatment management plan. In addition, the approved procedures may make further provision in relation to the application process.

44D Notice of application

(1) Within one day after making the application the applicants must give written notice of it in the approved form to the following persons:

(a) the person for whom the order is sought;

(b) if the person has a guardian – the guardian;

(c) a primary carer of the person;

(d) a legal practitioner acting or prepared to act for the person;

(e) the principal community visitor.

(2) However, the applicants need not give notice to a primary carer of the person if they:

(a) are satisfied it is not in the person's best interests to do so; and

(b) specify the reasons for not doing so in the application.

44E Decision on application

(1) If, on hearing the application, the Tribunal decides the person fulfils the criteria for involuntary admission on the grounds of complex cognitive impairment, the Tribunal must order:

(a) the person be admitted to, and detained in, an approved treatment facility as an involuntary patient on those grounds; and

(b) the treatment management plan for the person (as prepared by the applicants or as modified by the Tribunal in the way it considers appropriate) be implemented.

(2) Otherwise, the Tribunal must dismiss the application.

(3) If:

(a) the person is an existing involuntary patient; and

(b) the Tribunal dismisses the application; and

(c) the Tribunal does not order the person be detained as an involuntary patient on the grounds of mental illness or mental disturbance;

the person-in-charge of the approved treatment facility where the person is detained must discharge the person from the facility as soon as practicable, but not later than 48 hours, after the application is dismissed.

Note for section 44E

Part 15, Division 3 deals with the hearing procedures for the application. In addition, practice directions issued by the Tribunal under section 129(2A) apply to the application.

44F Content of order

(1) The Tribunal order for the person's admission and detention as an involuntary patient on the grounds of complex cognitive impairment must state:

(a) the date for review of the order; and

(b) if the person is not an existing involuntary patient – the date by which the person is to be admitted to an approved treatment facility.

Note for subsection (1)

Part 15, Division 2 deals with the Tribunal's review of the order. Under section 123(5)(ba), the Tribunal may order that the person continue to be detained as an involuntary patient on the grounds of complex cognitive impairment for not longer than 14 days.

(2) Also, the order may provide for the person's transport to the approved treatment facility, including, for example:

(a) who is to be responsible for transporting the person to the treatment facility; and

(b) the time within which the person is to be transported to the treatment facility.

(3) The person specified in the order as responsible for transporting the person to the approved treatment facility may use reasonable force and assistance to do so, including, for example, assistance by a police officer.

(4) In addition, the order may provide for other matters the Tribunal considers appropriate.

(5) The order ceases to have effect 14 days after the person's admission to an approved treatment facility.

44G Regular examinations

An authorised psychiatric practitioner must examine the person not less than once every 72 hours after the Tribunal makes the order for the person's admission and detention on the grounds of complex cognitive impairment.

44H Discharge

(1) The person-in-charge of the approved treatment facility where the person is detained under the Tribunal order as an involuntary patient must discharge the person from the facility on the earliest of the following:

(a) the date specified for discharge in the person's treatment management plan prepared for the application for an order under this Subdivision;

(b) the date an authorised psychiatric practitioner and authorised officer form the opinion the person no longer satisfies the criteria for involuntary admission on the grounds of complex cognitive impairment;

(c) the date the order ceases to have effect.

(2) However, subsection (1) applies subject to Divisions 2 and 3.

Note for subsection (2)

The person may be admitted as an involuntary patient on the grounds of mental illness or mental disturbance under Division 2 or 3.

Also, the Tribunal may make various orders under Part 15, Division 3 on a review under that Division.

15 Section 53 amended

Section 53(8), after "34(3)"

insert

and (4)

16 Section 58 amended

Section 58(2), penalty provision

omit, insert

Maximum penalty: 85 penalty units.

17 Section 59 amended

Section 59, penalty provision

omit, insert

Maximum penalty: 85 penalty units.

18 Section 60 amended

(1) Section 60

omit

all words from "or mental" to "likely to"

insert

, mental disturbance or complex cognitive impairment, a treatment that is intended to

(2) Section 60, penalty provision

omit, insert

Maximum penalty: 85 penalty units.

19 Section 61 amended

(1) Section 61(1) and (2)

omit, insert

(1) In this section:

mechanical restraint means the application of a device (including a belt, harness, manacle, sheet and strap) on a patient's body to restrict the patient's movement, but does not include the use of furniture (including a bed with sides and a chair with a table fitted on its arms) that restricts the patient's capacity to get off the furniture.

patient means a person who is being assessed or receiving treatment under this Act.

(2) A person must not apply mechanical restraint to a patient.

Maximum penalty: 40 penalty units.

(2A) Subsection (2) does not apply if the mechanical restraint is applied in accordance with this section.

20 Section 62 amended

(1) Section 62(2)

omit, insert

(1) A person must not keep a patient in seclusion.

Maximum penalty: 40 penalty units.

(2) Subsection (1) does not apply if the patient is kept in seclusion:

(a) in accordance with this section; and

(b) approved procedures.

(2) Section 62(16)

omit, insert

(16) In this section:

patient means a person who is being assessed or receiving treatment under this Act.

seclusion, of a patient, means the confinement of the patient at any time of the day or night alone in a room or area from which free exit is prevented.

21 Section 63 amended

Section 63(1) and (2)

omit, insert

(1) In this section:

non-psychiatric treatment means any of the following treatment if its primary purpose is not directed at treating a mental illness, mental disturbance or complex cognitive impairment or its effects:

(a) a surgical operation or procedure or a series of related surgical operations or procedures;

(b) the administration of an anaesthetic for the purposes of medical investigation;

(c) the administration of a course of treatment or medication requiring a prescription or medical supervision.

(2) A person must not perform non-psychiatric treatment on another person who is:

(a) an involuntary patient or subject to a community management order; and

(b) being assessed or receiving treatment under this Act.

Maximum penalty: 40 penalty units.

(2A) Subsection (2) does not apply if the treatment is performed in accordance with this section.

22 Section 64 amended

Section 64(1)

omit, insert

(1) A person must not perform a major medical procedure on a person who is an involuntary patient or subject to a community management order.

Maximum penalty: 40 penalty units.

(1A) Subsection (1) does not apply if the procedure is performed in accordance with this section.

23 Section 65 replaced

Section 65

repeal, insert

65 Clinical trials and experimental treatments

A person must not perform a clinical trial or experimental treatment on a person who is an involuntary patient or subject to a community management order unless:

(a) the trial or treatment is approved by an ethics committee nominated by the Chief Health Officer; and

(b) either:

(i) the person gives informed consent to the trial or treatment; or

(ii) the Tribunal gives approval to the trial or treatment.

Maximum penalty: 40 penalty units.

24 Section 66 amended

Section 66(1)

omit, insert

(1) A person must not perform electroconvulsive therapy on another person unless:

(a) the other person gives informed consent to the treatment; or

(b) the other person's adult guardian consents to the treatment.

Maximum penalty: 40 penalty units.

(1A) Subsection (1) does not apply if the treatment is performed in accordance with this section and approved procedures.

25 Section 67 amended

Section 67(1) and (2)

omit, insert

(1) In this section:

occupier of premises includes a person who occupies or has control of the premises, whether or not the person is the owner of the premises.

(2) The occupier of premises must not permit electro convulsive therapy to be performed on the premises unless the premises are licensed under this Division.

Maximum penalty: 40 penalty units.

26 Section 91 amended

(1) Section 91, penalty provision at the end

omit

(2) Section 91(1)

omit

all words from ", either" to "disclose"

insert

engage in conduct that results in the disclosure of

(3) Section 91(1), at the end

insert

Maximum penalty: 40 penalty units.

(4) Section 91(2)(g)

omit

or a member of the Police Force nominated by the Commissioner for the purposes of paragraph

insert

, or a police officer nominated by the Commissioner for this paragraph,

(5) Section 91(4), at the end

insert

Maximum penalty for subsection (4): 40 penalty units.

27 Section 93 amended

Section 93(3), penalty provision

omit, insert

Maximum penalty: 40 penalty units.

28 Section 117 amended

(1) Section 117(1)

omit

all words from "A" to "Act:"

insert

This section applies to each of the following persons who obtains information in the course of carrying out functions connected with the administration of this Act:

(2) Section 117(1), penalty provision

omit, insert

(1A) A person to whom this section applies commits an offence if the person:

(a) makes a record of, or uses, the information; or

(b) engages in conduct that results in the disclosure of the information to someone else.

Maximum penalty: 40 penalty units.

(3) Section 117(2)

omit

all words from "(1)" to "Act, or"

insert

(1A) does not apply if the person makes the record, uses the information or engages in the conduct

29 Section 118 amended

(1) Section 118(3)(c)

omit, insert

(c) a person who has a special interest or expertise in mental illness, mental disturbance or complex cognitive impairment.

(2) After section 118(5)(g)

insert

(ga) an authorised officer;

30 Section 122 amended

After section 122(1)

insert

(1A) In addition, the Tribunal must review the admission of a person under section 27 as a voluntary patient on the application of an authorised psychiatric practitioner.

31 Section 123 amended

(1) Section 123(1)

omit, insert

(1) The Tribunal must review a person's admission as an involuntary patient:

(a) for a patient other than one mentioned in paragraph (b) – within 14 days after the person's admission; or

(b) for a patient under a Tribunal order made on an application under Part 6, Division 4 – on the date stated in the order.

(2) After section 123(5)(b)

insert

(ba) the person fulfils the criteria for involuntary admission on the grounds of complex cognitive impairment, it may order that the person continue to be detained as an involuntary patient on those grounds for not longer than 14 days; or

(3) Section 123(6)

omit

or (b)

insert

, (b) or (ba)

(4) After section 123(6A)

insert

(6B) If the Tribunal makes an order under subsection (5)(ba):

(a) the order ceases to have effect at the end of the period stated in it; and

(b) the Tribunal cannot further review the person's detention on the grounds of complex cognitive impairment.

Note for subsection (6B)

However, the person may be detained as an involuntary patient on the grounds of mental illness or mental disturbance following assessment under Part 6, Division 2 or 3 if the person fulfils the criteria for involuntary admission on those grounds.

32 Section 127 amended

(1) Section 127(1)(b)(ii)

omit, insert

(ii) under section 27 to admit or refuse to admit a person as a voluntary patient; or

(2) Section 127(1)(b)(iv)

omit

14 days

insert

7 days

33 Section 129 amended

After section 129(1)

insert

(1A) In addition, the Tribunal must conduct a hearing to decide an application under Part 6, Division 4, for an order for a person's admission and detention as an involuntary patient on the grounds of complex cognitive impairment (an involuntary detention application).

34 Section 130 amended

(1) Section 130(1)

omit, insert

(1) In undertaking a review or deciding an involuntary detention application for a person, the Tribunal must consider the person's:

(a) current state in relation to the criteria for involuntary admission on the grounds of mental illness, mental disturbance or complex cognitive impairment; and

(b) medical and psychiatric history and current social circumstances.

(2) Section 130(2)

omit

is mentally ill

insert

has a mental illness, mental disturbance or complex cognitive impairment

(3) Section 130(2)(b), after "illness"

insert

, mental disturbance or complex cognitive impairment

35 Section 132 amended

(1) Section 132, penalty provision at the end

omit

(2) Section 132(1), (2) and (3), after "review"

insert

or involuntary detention application

(3) Section 132(5), at the end

insert

Maximum penalty for subsection (5): 40 penalty units.

36 Section 135A amended

Section 135A, penalty provision

omit, insert

Maximum penalty: 20 penalty units or imprisonment for 6 months.

37 Section 136 amended

(1) Section 136, penalty provision at the end

omit

(2) Section 136(2), (3) and (4), after "review by the Tribunal"

insert

or involuntary detention application

(3) Section 136(6), at the end

insert

Maximum penalty for subsection (6): 40 penalty units.

38 Sections 138 and 139 replaced

Sections 138 and 139

repeal, insert

138 Publication of identifying information

(1) A person commits an offence if:

(a) the person publishes:

(i) the name of another person; or

(ii) information that results in the identification of another person; and

(b) the other person is the subject of a review or involuntary detention application.

Maximum penalty: 40 penalty units.

(2) Subsection (1) does not apply if the publication is made:

(a) in an official report made for this Act; or

(b) with the approval of the Tribunal or other person.

(3) In this section:

publish includes broadcast.

139 Confidentiality of information – Tribunal members, staff and authorised officers

(1) This section applies to a person who is or has been:

(a) a member of the Tribunal; or

(b) the Registrar or a Deputy Registrar of the Tribunal; or

(c) a person employed to provide administrative support to the Tribunal; or

(d) an authorised officer.

(2) A person to whom this section applies commits an offence if:

(a) the person obtains information in the course of carrying out functions connected with the administration of this Act; and

(b) the person:

(i) makes a record of, or uses, the information; or

(ii) engages in conduct that results in the disclosure of the information to someone else.

Maximum penalty: 40 penalty units.

Note for section 139

Under section 43BE of the Criminal Code, a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.

39 Section 147 amended

(1) Section 147, heading

omit, insert

147 Confidentiality of information – Committee members

(2) Section 147

omit

divulge or communicate to any person

insert

disclose to someone else, or make use of

(3) Section 147, penalty provision

omit, insert

Maximum penalty: 40 penalty units.

40 Section 160 replaced

Section 160

repeal, insert

160 Documents relating to examination, admission and treatment

(1) A person must not sign a relevant document relating to another person unless:

(a) the person has seen, and personally examined, the other person; or

(b) the signing of the document is:

(i) in accordance with approved procedures; or

(ii) otherwise permitted under this Act.

Maximum penalty: 40 penalty units.

(2) A person must not sign a relevant document relating to another person unless the document:

(a) specifies the facts on which the opinion is based that the other person has a mental illness, mental disturbance or complex cognitive impairment; and

(b) distinguishes the facts that were observed by the person from the facts communicated to the person.

Maximum penalty: 40 penalty units.

(3) A person must not make a statement in a relevant document relating to another person knowing the statement is misleading.

Maximum penalty: 40 penalty units.

(4) In this section:

misleading, in relation to a statement, means the statement is misleading in a material particular or is misleading because of the omission of a material particular.

relevant document, for a person, means:

(a) a recommendation for psychiatric examination of the person; or

(b) another document relating to the person's admission to an approved treatment facility or treatment under this Act.

41 Section 162 amended

(1) Section 162, penalty provision at the end

omit

(2) Section 162(1), at the end

insert

Maximum penalty: 40 penalty units.

(3) Section 162(2)

omit, insert

(2) A person commits an offence if the person:

(a) does anything with the intention that another person:

(i) is admitted to an approved treatment facility; or

(ii) is treated at an approved treatment facility or by an approved treatment agency; and

(b) knows the other person does not have a mental illness, mental disturbance or complex cognitive impairment.

Maximum penalty: 40 penalty units.

42 Section 170 replaced

Section 170

repeal, insert

170 Regulations

The Administrator may make regulations under this Act.

43 Act further amended

The Schedule has effect.

Schedule Act further amended

section 43

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