Mental Health Act 1962 (ACT)
Mental Health Act 1962 No 5
(repealed)
Republication No 4
Effective: 18 January 2003
Republication date: 18 January 2003
As repealed by Act 2002 No 49
Unauthorised version prepared by ACT Parliamentary Counsel’s Office
About this republication
The republished law
This is a republication of the Mental Health Act 1962 (repealed) (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)). It also includes any commencement, amendment, repeal or expiry affecting the republished law to 18 January 2003.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
When preparing the authorised version of this republication amendments were not made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol U appears immediately before the provision heading. The text of the uncommenced provision or amendment appears only in the last endnote.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see Legislation Act 2001, section 95.
Penalties
The value of a penalty unit for an offence against this republished law at the republication date is—
(a)if the person charged is an individual—$100; or
(b)if the person charged is a corporation—$500.
Mental Health Act 1962 (repealed)
Contents
Page
Name of Act 2
Definitions for Act 2
Approval of supplemental agreement 2
Certificates of doctors and conveyance to admission centre 2
Declaration of reciprocating state 3
Powers of master about property in the ACT of mental patients confined in a reciprocating state 4
Regulation-making power 5
Schedule 16
Part 113
Part 215
Endnotes
About the endnotes 16
Abbreviation key 16
Legislation history 17
Amendment history 18
Earlier republications 19
Mental Health Act 1962 (repealed)
An Act to make provisions supplementary to the law in force in the ACT relating to the control and treatment of persons suffering from mental disorders, and for other purposes
Name of Act
This Act is the Mental Health Act 1962.
Definitions for Act
In this Act:
NoteA definition applies except so far as the contrary intention appears (see Legislation Act 2001, s 155).
reciprocating state means a part of Her Majesty’s dominions that is specified in the regulations to be a reciprocating state for section 7.
the master means the person who, under the supplemental agreement, carries out the functions of the Master in Lunacy in the ACT.
the State means the State of New South Wales.
the supplemental agreement means the agreement a copy of which is set out in schedule 1.
Approval of supplemental agreement
The supplemental agreement is ratified and approved and the doing or performance of all acts, matters or things that are to be, or may be, done or performed under or for the supplemental agreement is authorised.
Certificates of doctors and conveyance to admission centre
For this section, a certificate is a certificate in accordance, or substantially in accordance, with the form set out in the supplemental agreement, part 1, together with the form set out in the supplemental agreement, part 2, or with forms substituted for those forms under that agreement.
If each of 2 doctors has, independently of the other—
(a)personally examined a person; and
(b)formed the opinion that the person is a mentally ill person and is a suitable case for admission to an admission centre in the State; and
(c)formed the opinion that the assistance of a police officer is desirable in conveying the person to the admission centre;
and each of those doctors has issued a certificate in relation to the person, a police officer to whom the 2 certificates are together given not more than 7 days after the date of the earlier of the examinations referred to in the certificates shall, as soon as practicable, convey or assist in conveying the person to an admission centre in the State.
A doctor who gives a certificate shall specify in the certificate the facts and other matters on which he or she has formed the opinions expressed in the certificate.
A doctor shall not give a certificate in relation to a person if he or she is aware that another doctor who employs him or her or is employed by him or her or who is his or her partner, assistant, parent, brother, sister, child or spouse has examined the person and has given a certificate in relation to the person.
Maximum penalty: 5 penalty units.
A doctor shall not give a certificate in relation to a person who is his or her parent, brother, sister, child or spouse.
Maximum penalty: 5 penalty units.
A doctor who signs a certificate without having personally examined the person to whom it relates, at the time specified in the certificate, for the purpose of ascertaining the condition of the person, or who wilfully makes a false statement in a certificate, commits an offence.
Maximum penalty: 50 penalty units.
Declaration of reciprocating state
If the laws of a part of Her Majesty’s dominions outside the ACT enable powers (being powers substantially similar to the powers given by section 7 for mental patients residing in that part) to be exercised in that part for persons who are insane patients under the law in force in the ACT, the regulations may declare that part to be a reciprocating state for the purposes of section 7.
A reference in subsection (1) to a part of Her Majesty’s dominions outside the ACT includes a reference to a territory that is under Her Majesty’s protection and to a territory the subject of a trusteeship agreement approved by the General Assembly of the United Nations that is under the administration of a government of a part of Her Majesty’s dominions.
Powers of master about property in the ACT of mental patients confined in a reciprocating state
If the officer charged by the laws of a reciprocating state with the care, recovery, collection, preservation and administration of the property and estates of mental patients in a hospital centre situated in the reciprocating state—
(a)certifies in signed writing under his or her seal (if any) to the master that a person—
(i)is a mental patient confined in a hospital centre situated in that reciprocating state; and
(ii)is possessed of or entitled to or appears to be entitled to or interested in real or personal property in the ACT; and
(b)by signed written instrument and under his or her seal (if any) authorises the master to collect, recover, manage, sell or otherwise dispose of and administer that property or to make inquiry respecting that property;
the master shall have and may exercise in relation to that property the same powers of collection, recovery, management, sale, disposition, administration and inquiry that he or she would have had and may have exercised in relation to that property if the mental patient had been an insane patient under the law in force in the ACT.
If the master has, in the exercise of his or her powers under subsection (1), received any money or properties, the master may, after—
(a)paying all costs, charges and expenses incurred by him or her in the exercise of those powers in connection with that money or those properties; and
(b)satisfying or providing for the debts (if any) of the mental patient that are owed to persons resident in the ACT and the claims (if any) of persons resident in the ACT against the mental patient;
pay over or give and account for the balance (if any) of the money or properties to the officer of the reciprocating state who signed the authority in relation to the money or properties or his or her successor in office.
If the master pays over or gives money or properties in accordance with subsection (2), he shall not be responsible for the application of the money or properties or incur any liability in relation to that payment over or delivery.
Regulation-making power
The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.
Schedule 1
(see s 2)
A Supplemental Agreement made the eighteenth day of October One thousand nine hundred and sixty-one Between The Commonwealth of Australia (in this agreement called ‘the Commonwealth’) of the one part and The State of New South Wales (in this agreement called “the State”) of the other part.
Whereas by the agreement referred to in this agreement as the principal agreement provision was made for the reception, detention and maintenance in institutions in the State of insane persons and inebriates committed to those institutions by a Court, Judge, Magistrate or Justice of the Peace of the Territory for the Seat of Government acting or purporting to act under any law of or in force in the Territory, and for other purposes:
And Whereas by the Insane Persons and Inebriates (Committal and Detention) Act 1936-1937 of the said Territory and the Lunacy and Inebriates (Commonwealth Agreement Ratification) Act, 1937 of the State the principal agreement was ratified, approved and validated and the doing or performance of all such acts, matters or things as are or may be done or performed under or in pursuance of the principal agreement was authorised:
And Whereas it is necessary and desirable to make further provision for the admission and detention of residents of the Territory in institutions in the State and for other matters:
Now It Is Hereby Agreed as follows—
This agreement shall have no force or effect and shall not be binding on either party until it is approved by the Parliament of the State and by a law of the Territory, so as to validate its execution and so as to authorise the doing or performance of all such acts, matters or things as are to be done or performed under or in pursuance of this agreement.
2(1) In this agreement, unless the context otherwise requires—
the Lunacy Act in its application to the Territory means the Lunacy Act of 1898 of the State as in force in the Territory as amended from time to time by Act of the Territory.
the Mental Health Act means the Mental Health Act, 1958 of the State as amended from time to time.
the principal agreement means the agreement made the eighteenth day of March, 1936, between the Honourable Herbert Paton FitzSimons, then Minister for Health of the State, for and on behalf of the State, and the Honourable Thomas Paterson, then Minister of State for the Interior of the Commonwealth, for and on behalf of the Commonwealth, and set out in the Schedule to the said Insane Persons and Inebriates (Committal and Detention) Act 1936-1937 of the Territory and the said Lunacy and Inebriates (Commonwealth Agreement Ratification) Act, 1937 of the State; and words importing the masculine gender include females, words in the singular include the plural, and words in the plural include the singular.
In the principal agreement, notwithstanding anything contained therein, and in this agreement
the Minister means the Minister of State of the Commonwealth for the time being administering the Act of the Territory by which the principal agreement and this agreement are approved and includes a member of the Federal Executive Council for the time being acting for and on behalf of that Minister.
the Minister for Health means the Minister of State administering the Mental Health Act and includes a member of the Executive Council of the State for the time being acting for and on behalf of that Minister.
the Territory means the Australian Capital Territory and includes the Territory accepted by the Commonwealth in pursuance of the Jervis Bay Acceptance Act 1915 of the Commonwealth and described in the agreement set out in the Schedule to that Act.
The principal agreement shall, notwithstanding anything contained therein, be construed as follows:
(a)a reference to the Lunacy Act of 1898 of the State shall be read as a reference to the Mental Health Act; and
(b)a reference to a specific provision of the Lunacy Act of 1898 of the State shall be read as a reference to the corresponding provision for the time being in force, if any, of the Mental Health Act; and
(c)a reference to an authority or institution of or in the State mentioned in the Lunacy Act of 1898 of the State shall be read as a reference to the corresponding authority or institution, whether of the same or some other name, mentioned in the Mental Health Act.
A reference in the principal agreement or in this agreement to an act, matter or thing done or to be done or performed or to be performed by the Minister shall be read so as to include an act, matter or thing done or to be done or performed or to be performed by a delegate of, or a person authorised by, the Minister in that behalf under the laws for the time being in force in the Territory.
Subject to the preceding subclauses of this clause, words and expressions used in this agreement which are the same as words and expressions to which a meaning is attributed in the principal agreement shall, unless the contrary intention appears, have the respective meanings attributed to them by the principal agreement.
The principal agreement is amended by omitting clause 3 thereof.
A resident of the Territory will be admitted to and detained in an admission centre in the State for observation and treatment upon the certificate of one registered medical practitioner of the Territory in or to the effect of the form set out in Part I of the schedule to this agreement or in such other form as may from time to time be agreed upon by the Minister and the Minister for Health.
5(1) When two medical practitioners of the Territory have given certificates in or to the effect of the form set out in Part I of the schedule to this agreement, endorsed in or to the effect of the form set out in Part II of the schedule to this agreement, or in such other form or endorsed in such other manner as may from time to time be agreed upon by the Minister and the Minister for Health, and the person with respect to whom the certificates were given is taken by a member of the Police Force of the Territory to the admission centre named in the certificates and presented to a responsible person there, the person presented shall be admitted to the admission centre by the authorities of the State and detained in the admission centre or in some other admission centre in the State.
When a person is presented to a responsible person at an admission centre in accordance with the last preceding subclause, the person presented shall be identified to the satisfaction of the responsible person and there shall be delivered to the responsible person the medical certificates relating to the person presented.
A person admitted to an admission centre in pursuance of clause 4 or clause 5 of this agreement shall be deemed to be subject to the provisions of the Mental Health Act and any act, matter or thing may be done or performed with respect to that person, in all respects as if the person had been admitted to and detained in the admission centre in pursuance of subsection (1) of section 12 of the Mental Health Act.
7(1) A resident of the Territory who makes application or for whom application is made, in accordance with the provisions of Part VI of the Mental Health Act, for admission to and detention in an admission centre, mental hospital or authorised hospital as a voluntary patient may, subject to the provisions of that Part, be so admitted by the superintendent of the admission centre, mental hospital or authorised hospital.
A person so admitted and detained shall be subject in all respects to the provisions of the Mental Health Act as a voluntary patient and any act, matter or thing may be done or performed in accordance with those provisions with respect to that person and, by the Master in the Protective Jurisdiction of the Supreme Court of the State, with respect to the estate of that person.
8(1) Where—
(a)the Governor-General of the Commonwealth, acting or purporting to act under any law of or in force in the Territory, orders or directs a person to be conveyed to and kept in a mental hospital in the State during the Governor-General’s pleasure; or
(b)the Minister, acting or purporting to act under any law of or in force in the Territory, orders or directs by order that a person be removed to and kept or detained in or recommitted to a mental hospital in the State,
and the person is by a member of the Police Force of the Territory handed over in the State to and received into the custody of an officer of the Police of the State, the person shall be apprehended and conveyed by the officer of the State to the hospital and shall by the authorities of the State be received therein and detained in the hospital or in any other mental hospital in the State.
Where a person is handed over to an officer of the Police of the State in accordance with the last preceding subclause, the person shall be identified to the satisfaction of the officer and there shall be delivered to the officer the warrant or order of the Governor-General or Minister, as the case may be, and the Court order, or medical certificates and statement of particulars, leading to the warrant or order, together with a statement signed by the Minister showing the provision of the Law of the Territory under the authority of which the warrant or order of the Governor-General or Minister or Court order was made, and showing further shortly the requirements of such provision.
In any case where medical certificates and a statement of particulars are required they shall be in the form of that in Schedule Two of the Lunacy Act of 1898 in its application to the Territory or in such other form as may be agreed upon by the Minister and the Minister for Health.
The names of the hospitals in the State which may be referred to in any such warrant or order shall be communicated to the Minister by the Minister for health.
A person confined or detained in a mental hospital in pursuance of clause 8 of this agreement shall be deemed to be subject to the provisions of the Mental Health Act and any act, matter or thing may be done or performed with respect to that person in all respects as if the person had been so confined or detained pursuant to the order of the Governor of the State or the Minister for Health, as the case may be, but that person shall be dealt with in accordance with such orders as the Governor-General or the Minister may make from time to time in pursuance of any law of or in force in the Territory, and, except in pursuance of any such order or in accordance with this agreement, shall not be liberated or discharged.
10 (1) Where the Governor-General of the Commonwealth, acting or purporting to act under any law of or in force in the Territory, permits a person confined in a mental hospital under the last preceding clause to be liberated therefrom, the warrant of the Governor-General shall be sent by the Minister to the Minister for Health who shall arrange for the liberation of the person upon such terms and conditions, if any, as are prescribed in the said warrant.
If any condition upon which a person is liberated under the last preceding clause is broken, the State will, at the request and the expense of the Commonwealth, take such action to retake that person as it would have taken if the person had been liberated with the permission of the Governor and a condition on which he had been liberated had been broken.
When the Minister, acting or purporting to act under a law of or in force in the Territory, orders or directs a person detained in pursuance of clause 8 of this agreement to be returned to the Territory or any gaol or other place of detention in the Territory, a copy of the order shall be sent by the Minister to the Minister for Health who shall arrange for the delivery of the person to a member of the Police Force of the Territory.
If at any time a person escapes from the custody of a member of the Police Force or other officer of the Territory by whom the person is being conveyed within the State for the purposes of the principal agreement or of this agreement, the State will, at the expense of the Commonwealth, take all reasonable action for the retaking of the person and for his return to custody or his delivery to the institution to which he was being conveyed.
Subject to this agreement and the principal agreement, the provisions of clauses 5, 6, 11, 12, 13 and 14, and of subclauses (b) and (c) of clause 16, of the principal agreement shall apply to and with respect to every person, and to and with respect to the property of every person handed over to, and received into custody by, an officer of the Police of the State and to every person and to the property of every person admitted to an admission centre, mental hospital or authorised hospital in the State in pursuance of this agreement.
Until such time as is otherwise provided by or in accordance with the laws in force in the Territory the Master in the Protective Jurisdiction of the Supreme Court, Deputy Master and Chief Clerk in the Protective Jurisdiction of the Supreme Court respectively of the State shall carry out the functions of the offices of Master in Lunacy, Deputy Master in Lunacy and Chief Clerk, respectively, under the Lunacy Act in its application to the Territory.
Except in so far as it is varied by this agreement, the principal agreement is confirmed, and clauses 17 and 18 and subclause (a) of clause 16 of the principal agreement shall apply with respect to this agreement as if this agreement were incorporated in and formed part of the principal agreement.
A notification published in the Commonwealth Gazette and the New South Wales Government Gazette and purporting to have been signed by the Minister and the Minister for Health to the effect that the form of certificate or manner of endorsement set out in the notification has been agreed upon pursuant to this agreement shall be conclusive evidence of the matters stated and set out.
Part 1
I, …………………………………………………………………….
(Name in full)
of …………………………………………….., Medical Practitioner,
(Address)
do hereby certify that on the ............ day of 19......, at
………………………………………………………………………..
(Address of place where examination took place)
I personally examined ……………………………………………….
(Name of person in full)
of …………………………………………………………………….
(Address of person examined)
independently of any other medical practitioner and I am of the opinion that the said person is a mentally ill person and is a suitable case for admission to the Admission Centre at ……………………...
………………………………………………………………………..
(Name of institution)
for observation and treatment.
In my opinion the person examined is*—
(a) suicidal;
(b) dangerous to others;
(c) unable to care for himself;
(d) not under proper care and control.
The facts and other matters upon which I have formed these opinions are as follows:
The following treatment and medication (if any) have been administered in respect of the mental illness of the person examined:
So far as I am aware—
(a)the bodily health and condition of the person examined is ; and
(b) the person examined has not suffered any recent injury; or
(b)the person examined has suffered a recent injury of which particulars are as follows:
‡ Signed this............day of ,19......
Signature …………………………………..
Part 2
I am of the opinion that the assistance of a member of the Police Force is desirable in conveying the person examined to the Admission Centre at …………………………………………………
(Name of institution)
The facts and other matters upon which I have formed this opinion are as follows:
Signed this...........day of ……………………………………., 19......
Signature …………………………………
* Strike out and initial any of the conditions that are not applicable.
Strike out words inapplicable.
‡ Omit when the form in Part II of the Schedule is used.In Witness Whereof this agreement has been executed the day and year first above written.
| Signed for and on behalf of The Commonwealth of Australia by The Honourable Gordon Freeth, Minister of State for the Interior of the Commonwealth, in the presence of— | Gordon Freeth |
David I. Smith
Private Secretary,
Canberra, A.C.T.
| Signed for and on behalf of The state of new south wales by The Honourable william francis sheahan, Minister for Health of the State, in the presence of— | } | W. SHEAHAN |
K. H. GAIN
156 Raglan St.
Mosman
Endnotes
About the endnotes
Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws and expiries are listed in the legislation history and the amendment history. These details are underlined. Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote.
If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
If the republished law includes penalties, current information about penalty unit values appears on the republication inside front cover.
Abbreviation key
am = amended ord = ordinance amdt = amendment orig = original ch = chapter p = page cl = clause par = paragraph def = definition pres = present dict = dictionary prev = previous disallowed = disallowed by the Legislative (prev...) = previously Assembly prov = provision div = division pt = part exp = expires/expired r = rule/subrule Gaz = Gazette reg = regulation/subregulation hdg = heading renum = renumbered IA = Interpretation Act 1967 reloc = relocated ins = inserted/added R[X] = Republication No LA = Legislation Act 2001 RI = reissue LR = legislation register s = section/subsection LRA = Legislation (Republication) Act 1996 sch = schedule mod = modified / modification sdiv = subdivision No = number sub = substituted num = numbered SL = Subordinate Law o = order underlining = whole or part not commenced om = omitted/repealed or to be expired
Legislation history
This Act was originally a Commonwealth ordinance—the Mental Health Ordinance 1962 No 5 (Cwlth).
The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34 (4) converted most former Commonwealth ordinances in force in the ACT into ACT enactments. This allowed the ACT Legislative Assembly to amend and repeal the laws. This Act was converted into an ACT enactment on 11 May 1989 (self-government day).
As with most ordinances in force in the ACT, the name was changed from Ordinance to Act by the Self-Government (Citation of Laws) Act 1989 No 21, s 5 on 11 May 1989 (self-government day).
Before 11 May 1989, ordinances commenced on their notification day unless otherwise stated (see Seat of Government (Administration) Act 1910 (Cwlth), s 12).
Legislation before becoming Territory enactment
Mental Health Act 1962 No 5
notified 18 April 1962
commenced 18 April 1962as amended by
Ordinances Revision (Decimal Currency) Ordinance 1966 No 19 sch 1
notified 23 December 1966
commenced 23 December 1966Ordinances Revision Ordinance 1978 No 46 sch 2
notified 28 December 1978
commenced 28 December 1978Magistrates Court Ordinance 1985 No 67 sch pt 1
notified 19 December 1985
commenced 1 February 1986 (s 2 and Cwlth Gaz 1986 No G3)Self-Government (Consequential Amendments) Ordinance 1989 No 38 sch 1
notified 10 May 1989 (Cwlth Gaz 1989 No S160)
s 1, s 2 commenced 10 May 1989 (s 2 (1))
sch 1 commenced 11 May 1989 (s 2 (2) and see Cwlth Gaz 1989 No S164)Legislation after becoming Territory enactment
Mental Health (Consequential Provisions) Act 1994 No 45 s 32
notified 7 September 1994 (Gaz 1994 No S177)
s 1, s 2 commenced 7 September 1994 (s 2 (1))
s 32 commenced 6 February 1995 (s 2 (2) and see Gaz 1995 No S33)Statute Law Revision (Penalties) Act 1998 No 54 sch
notified 27 November 1998 (Gaz 1998 No S207)
s 1, s 2 commenced 27 November 1998 (s 2 (1))
sch commenced 9 December 1998 (s 2 (2) and Gaz 1998 No 49)Legislation (Consequential Amendments) Act 2001 No 44 pt 220
notified 26 July 2001 (Gaz 2001 No 30)
s 1, s 2 commenced 26 July 2001 (IA s 10B)
pt 250 commenced 12 September 2001 (s 2 and see Gaz 2001 No S65)as repealed by
Statute Law Amendment Act 2002 (No 2) No 49 sch 5
notified LR 20 December 2002
s 1, s 2 taken to have commenced 7 October 1994 (LA s 75 (2))sch 5 commenced 17 January 2003 (s 2 (1))
Amendment history
Definitions for Act
s 2am 1985 No 67 sch
Certificates of doctors and conveyance to admission centre
s 4am 1966 No 19 sch 1; 1998 No 54 sch
Minister may, in certain cases, order return to ACT of person detained in a State institution
s 5am 1989 No 38 sch 1
om 1994 No 45 s 32
Regulation-making power
s 8am 1989 No 38 sch 1
sub 2001 No 44 amdt 1.2888
Schedule 1
sch 1(prev sch) am 1978 No 46 sch 2
renum R3 LA
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Except for the footer, electronic and printed versions of an authorised republication are identical.
Republication No
Amendments to
Republication date
1 ord 1989 No 38 31 July 1991 2 Act 1994 No 45 28 February 1995 3 Act 2001 No 44 29 August 2002
Unauthorised version prepared by ACT Parliamentary Counsel's Office
© Australian Capital Territory 2003
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