Mental Health (Amendment) Act 2003 (Vic)

Mental Health (Amendment) Act 2003

ts	Act No. 76/2003
n
e
m	TABLE OF PROVISIONS

u	Section	Page
c
o	PART 1—PRELIMINARY	1
D

1. Purposes 1

ry	2.	Commencement	2
3.	Principal Act	2
ta

n	PART 2—AMENDMENTS RELATING TO INVOLUNTARY
e	PATIENTS 3

m	4.	Definitions	3
ia	5.	New Division 1 of Part 3 inserted	5
rl	Division 1—Introductory	5
a	7.	Definitions	5
P	6.	Criteria for involuntary treatment	6
d	7.	New section 9 substituted and sections 9A and 9B inserted	7
n	9.	Request and recommendation for involuntary treatment	7
a	9A.	Authority to transport	8
9B.	Taking a person to an approved mental health service	9
n	8.	Apprehension of mentally ill persons	10
o
ti	9.	New section 12 substituted and sections 12AA to 12AE inserted	11

12.          Involuntary treatment orders—assessment in the

la	community	11
is	12AA.	Involuntary treatment orders—persons taken to an
approved mental health service 12
g	12AB.	Interim treatment under involuntary treatment order 13
e	12AC.	Examination by authorised psychiatrist 14
L	12AD.	Treatment for involuntary patients 15
12AE.	Notification of guardian 16

n	10.	Continued detention and treatment	16
a
ri	11.	New section 13 substituted	16

13.          Admission to a general hospital or emergency

to	department	16
ic
V

i

Section Page

14C.	Variation of community treatment orders	21
14D.	Revocation of community treatment orders	21
14E.	Effect of person's detention in custody etc. on

ts	involuntary treatment orders and community treatment
orders 22

n	13.	Persons convicted of offences or in prison	23
e	14.	New section 15AB inserted	24

m	15AB.	Monitoring persons on restricted community treatment
u	orders 24
c	15.	New sections 15B and 15C substituted and sections 15D
o	and 15E inserted 25
15B. Extension of restricted community treatment orders 25
D	15C. Variation of restricted community treatment orders 26
ry	15D. Revocation of restricted community treatment orders 27
15E. Effect of person's detention etc. on restricted
ta	community treatment orders	28

n	16.	Transfer of mentally ill prisoners	28
e	17.	Statement of patient's rights	29
18.	New section 19A inserted	29
m	19A.	Treatment plans	29
ia	19.	Appeals and reviews	31
rl	20.	New sections 30 and 31 substituted	32
a	30.	Reviews	32
31.	Appeals and reviews may be held concurrently	34
P	21.	Further amendments regarding appeals and reviews	34
d	22.	New section 35A inserted	34
n	35A.	Review of treatment plans	34
a	23.	New section 36 substituted and sections 36A to 36E inserted	35

36.          Power of Board on appeal or review of involuntary

n	treatment orders—patients who are detained	35
o
ti	36A.	Power of Board on appeal or review of hospital
transfer orders 36
la	36B.	Power of Board on appeal or review of orders under
is	the Sentencing Act 1991—patients who are detained 37
36C.	Power of Board on appeal or review for patients on
g	community treatment orders 37
e	36D.	Power of Board on appeal or review for patients on
L	restricted community treatment orders 39
n	36E.	Power of Board on appeal or review—continued
a
ri
detention under section 12A(4) or 12C 40

24. New section 37 substituted 41

37. Discharge of involuntary patients 41

to	25.	Consequential amendments	43
ic
V

ii

Section	Page
PART 3—CONFIDENTIALITY AND OTHER AMENDMENTS	50

29.	Definition	50
30.	Secrecy provision—staff of Boards	50

ts	31.	Non-psychiatric treatment	50
n	32.	New headings in Division 1 of Part 6	50
e	33.	New section 94A inserted	51

94A. Emergency declaration of approved mental health

m services 51

u	34.	New section 95 substituted	51
c	95.	Appointment of registered medical practitioners	51
o	35.	Confidentiality	52
D	36.	New section 149 inserted	55

149.        Transitional provisions—Mental Health

ry (Amendment) Act 2003 55

ta 37. Membership and procedure of Boards 55

n	PART 4—AMENDMENT OF CORONERS ACT 1985	57
e

38. Reportable deaths under the Coroners Act 1985 57

m	═══════════════
ia

rl	ENDNOTES	58
a
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iii

ts
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c
o	Victoria
D
ry
ta
n	No. 76 of 2003
e
m
ia	†

Mental Health (Amendment) Act 2003

rl

a	[Assented to 21 October 2003]
P
d
n
a
n	The Parliament of Victoria enacts as follows:
o
ti
la	PART 1—PRELIMINARY
is
g	1. Purposes
e
L	The purposes of this Act are—
n	(a) to amend the Mental Health Act 1986—
a

ri	(i)	to clarify and improve the operation of the provisions for involuntary patients
to	and the making of community
ic	treatment orders;
V

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s. 2

(ii)  to clarify and improve the operation of confidentiality provisions;

ts	(iii) to make miscellaneous amendments;
n	(b) to amend the Coroners Act 1985 to ensure
e	that the death of a patient who is not held in
m	care is a reportable death.
u
c	2. Commencement
o	(1) This Act, except Part 2, comes into operation on
D	the day after the day on which it receives the
ry	Royal Assent.
ta	(2) Subject to sub-section (3), Part 2 comes into
n	operation on a day or days to be proclaimed.
e	(3) If a provision of Part 2 does not come into
m	operation before 1 January 2005, it comes into
ia	operation on that day.
rl	3. Principal Act
a

P	See:	In this Act, the Mental Health Act 1986 is called
Act No.
d	59/1986.
Reprint No. 7
the Principal Act.
n	as at
a	1 July 2002
and
n	amending
o	Act Nos
ti	67/1998 and
41/2002.
la	LawToday:
is	dpc.vic.
g	gov.au
e

L	__________________
n
a
ri
to
ic
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PART 2—AMENDMENTS RELATING TO INVOLUNTARY

PATIENTS

ts

n	4. Definitions
e	(1) In section 3(1) of the Principal Act—
m
u	(a) for the definition of "community treatment
c	order" substitute—
o	' "community treatment order" means an
D	order made under section 14;';
ry	(b) for the definition of "involuntary patient"
ta	substitute—
n
e	' "involuntary patient" means—

(a) a person who is subject to an

m

ia	involuntary treatment order
rl	(including a person who is subject
a	to a community treatment order);
P	or
d	(b) a person who is subject to a
n	hospital order (including a person
a	who is subject to a restricted
n	community treatment order); or
o

ti	(c)	a person who is subject to an
la	assessment order or a diagnosis,
is	assessment and treatment order; or

(d) a person who is subject to a

g

e	hospital transfer order; or
L	(e) a person whose detention and
n	treatment is continued under
a
ri	section 12A(4) or 12C; or
to	(f) a person to whom section 93F,
ic	93H or 93K(5) applies;';
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(c) in the definition of "security patient", for paragraph (a) substitute—

ts	"(a) a person who is subject to a hospital
n	security order or a restricted hospital
e	transfer order; or";
m	(d) insert the following definitions—
u
c	' "assessment order" means an order made
o	under section 90 of the Sentencing Act
D	1991;
ry	"authority to transport" means an
ta	authority to transport under
section 9A(1)(c);
n
e	"diagnosis, assessment and treatment
m	order" means an order made under
ia	section 91 of the Sentencing Act 1991;
rl	"hospital order" means an order made
a	under section 93(1)(d) of the
P	Sentencing Act 1991;
d	"hospital security order" means an order
n
a	made under section 93(1)(e) of the Sentencing Act 1991;
n
o	"hospital transfer order" means an order
ti	made under section 16(3)(a);
la	"involuntary treatment order" means an
is	order made under section 12 or 12AA;
g
e	"restricted community treatment order"
L	means an order made under
n	section 15A;
a
ri	"restricted hospital transfer order" means

an order made under section 16(3)(b);

to	"request and recommendation" means a
ic	request and recommendation under
V	section 9;

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"treatment plan" for a patient, means the patient's treatment plan under

ts	section 19A;'.
n	(2) For section 3A(2)(a), (b) and (c) of the Principal
e	Act substitute—
m	"(a) section 8 (criteria for involuntary treatment);
u
c	(b) section 12AB (interim treatment under
o	involuntary treatment order);
D	(c) section 12AD (treatment for involuntary
ry	patients);".
ta	5. New Division 1 of Part 3 inserted
n	After the heading to Part 3 of the Principal Act
e	insert—
m
ia	'Division 1—Introductory
rl
a	7. Definitions
P	In this Part—
d
n	"authorised person" means—
a	(a) a registered medical practitioner;
n	or
o
ti	(b) a registered nurse; or
la	(c) a person who is a member of a
is	class of health service providers
g	prescribed as a class of authorised
e	persons for the purposes of this
L	Part;
n	"mental health practitioner" means a
a
ri	person who is a member of a class of health service providers prescribed as a
to	class of mental health practitioners for
ic	the purposes of this Part;
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"prescribed person" means—

(a) a member of the police force; or

ts	(b) an ambulance officer; or
n
e	(c) a person who is a member of a class prescribed as a class of
m
u	prescribed persons for the
c	purposes of this Part;
o	"prescribed registered medical
D	practitioner" means a registered
ry	medical practitioner of a class
ta	prescribed as a class of registered
medical practitioners for the purposes
n
e	of this Part.'.
m	6. Criteria for involuntary treatment
ia	(1) Insert the following heading to section 8 of the
rl	Principal Act—
a
P	"Criteria for involuntary treatment".
d	(2) For section 8(1) of the Principal Act substitute—
n	"(1) The criteria for the involuntary treatment of a
a	person under this Act are that—
n
o	(a) the person appears to be mentally ill;
ti	and
la	(b) the person's mental illness requires
is	immediate treatment and that treatment
g	can be obtained by the person being
e	subject to an involuntary treatment
L	order; and
n	(c) because of the person's mental illness,
a
ri	involuntary treatment of the person is
to	necessary for his or her health or safety
(whether to prevent a deterioration in
ic	the person's physical or mental
V	condition or otherwise) or for the

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protection of members of the public;

and

ts	(d)	the person has refused or is unable to
n	consent to the necessary treatment for
e	the mental illness; and

m	(e) the person cannot receive adequate
u	treatment for the mental illness in a
c	manner less restrictive of his or her
o	freedom of decision and action.
D

Note: In considering whether a person has refused

ry	or is unable to consent to treatment, see
ta	section 3A.".
n	7. New section 9 substituted and sections 9A and 9B
e	inserted
m	For section 9 of the Principal Act substitute—
ia
rl	"9. Request and recommendation for
a	involuntary treatment
P	(1) The documents required to initiate the
d	involuntary treatment of a person are—
n	(a) a request in the prescribed form and
a	containing the prescribed particulars;
n	and
o
ti	(b) a recommendation in the prescribed
la	form by a registered medical
is	practitioner following a personal
g	examination of the person.
e	(2) A request may be signed before or after a
L	recommendation is made.
n	(3) A registered medical practitioner must not
a
ri	make a recommendation under sub-section
to	(1) unless he or she considers that—

ic	(a)	the criteria in section 8(1) apply to the
V	person; and

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(b) an involuntary treatment order should be made for the person.

ts	(4) A request and recommendation have effect
n	for 72 hours following the examination of
e	the person by the registered medical
m	practitioner who made the recommendation.
u	(5) While they have effect, a request and
c	recommendation made in accordance with
o	this section are sufficient authority for a
D	person referred to in sub-section (6) to—
ry	(a) arrange for the assessment of the person
ta	to whom the recommendation relates
n	by a mental health practitioner; or
e	(b) take the person to whom the
m	recommendation relates to an
ia	appropriate approved mental health
rl	service.
a
P	(6) The persons who may take action under sub- section (5) are—
d
n	(a) the person making the request; or
a
(b) a person authorised by the person
n	making the request; or
o
ti	(c) a prescribed person.
la	9A. Authority to transport
is	(1) Despite anything to the contrary in section 9,
g
e	a person in respect of whom a request is
L	made in accordance with section 9(1)(a) may
n	be taken to an appropriate approved mental
a	health service without a recommendation
ri	being made under section 9(1)(b) if—
to	(a) a registered medical practitioner is not
ic	available within a reasonable period to
V	consider making a recommendation despite all reasonable steps having been

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taken to secure the attendance of one;

and

ts	(b)	a mental health practitioner considers
n	that—

e	(i) the criteria in section 8(1) apply to
m	the person; and
u
c	(ii) the person should be taken to an
o	approved mental health service for
D	examination by a registered medical practitioner for the
ry	purpose of making a
ta	recommendation; and
n	(c) the mental health practitioner completes
e	an authority to transport in the
m	prescribed form containing the
ia
rl	prescribed particulars.
a	(2) A person who has made a request under
P	section 9(1)(a) in respect of a person must not complete an authority to transport that
d
n	person under sub-section (1)(c).
a	9B. Taking a person to an approved mental
n	health service
o
ti	(1) This section applies if a person is to be taken
la	to an approved mental health service
is	under—

(a) a request and recommendation; or

g

e	(b) an authority to transport; or
L
(c) section 12(2)(a) or 12(6); or
n
a
ri	(d) section 12AC(4)(b).
to
ic
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(2) For the purpose of taking the person to the

approved mental health service, a prescribed
person may with such assistance as is

ts	required and such force as may be
n	reasonably necessary—
e

(a) enter any premises in which the

m

u	prescribed person has reasonable
c	grounds for believing that the person
o	may be found; and
D	(b) if necessary to enable the person to be
ry	so taken safely, use such restraint as
ta	may be reasonably necessary.
n	(3) If a prescribed registered medical
e	practitioner considers that it is necessary to
m	sedate the person so that the person can be
ia	taken safely to the approved mental health
rl	service, the prescribed registered medical
a	practitioner may administer or direct an
P	authorised person to administer sedation to
d	the person.
n	(4) A person who uses restraint under sub-
a	section (2) or administers sedation or directs
n	an authorised person to administer sedation
o
ti	under sub-section (3) must specify the
particulars required by the prescribed form
la	and deal with the prescribed form in
is	accordance with the regulations.".
g	8. Apprehension of mentally ill persons
e
L	In section 10 of the Principal Act—
n	(a) in sub-section (5)(b), for "section 9(7A)"
a
ri	substitute "section 9A(1)";
to	(b) sub-section (10) is repealed.
ic
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9.  New section 12 substituted and sections 12AA to 12AE inserted

ts	For section 12 of the Principal Act substitute—
n	'12. Involuntary treatment orders—
e	assessment in the community
m	(1) This section applies if—
u
c	(a) a request and recommendation have
o	been made for a person; and
D

(b) a mental health practitioner has

ry	assessed the person in accordance with
ta	the request and recommendation.
n	(2) The mental health practitioner must—
e

(a) take the person, or arrange for the

m

ia	person to be taken, to an appropriate
rl	approved mental health service; or (b) make an involuntary treatment order for
a
P	the person.
d	(3) The mental health practitioner must have
n	regard to the criteria in section 8(1) in
a	deciding what action to take under sub-
n	section (2).
o
ti	(4) An involuntary treatment order under this
la	section must be in the prescribed form and
is	contain the prescribed particulars.
g	(5) If the mental health practitioner makes an
e	involuntary treatment order for a person but
L	does not consider that—
n	(a) the criteria in section 8(1) apply to the
a
ri	person; or
to
ic
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(b) an involuntary treatment order should be made for the person—

ts	the practitioner must notify the authorised
n	psychiatrist of the appropriate approved
e	mental health service as soon as practicable.
m	(6) At any time after an involuntary treatment
u	order is made for a person under this section,
c	but before the authorised psychiatrist
o	examines the person under section 12AC, a
D	mental health practitioner may take the
ry	person, or arrange for the person to be taken,
ta	service if the mental health practitioner
to an appropriate approved mental health
n
e	considers it necessary to do so.
m	(7) If a person is taken to an approved mental
ia	health service under sub-section (6), the
rl	involuntary treatment order is sufficient
a	authority for the detention of the person in
P	the approved mental health service until the
d	authorised psychiatrist examines him or her
n	under section 12AC.
a	12AA. Involuntary treatment orders—persons
n	taken to an approved mental health
o
ti	service
la	(1) This section applies if—

is	(a)	a request and recommendation have
g	been made for a person; and

e	(b) the person has been taken to an
L	approved mental health service.
n
a	(2) A registered medical practitioner employed
ri	by the approved mental health service to
to	which the person has been taken must make
ic	an involuntary treatment order for the
person.
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(3) An involuntary treatment order under this

section must be in the prescribed form and

ts	contain the prescribed particulars.
n	(4) An involuntary treatment order made for a
e	person in accordance with this section is
m	sufficient authority for the detention of the
u	person in an approved mental health service.
c	(5) If the registered medical practitioner who
o	makes an involuntary treatment order for a
D	person under sub-section (2) does not
ry	consider that—

ta	(a)	the criteria in section 8(1) apply to the
n	person; or

e	(b) an involuntary treatment order should
m	be made for the person—
ia
rl	the practitioner must notify the authorised
a	psychiatrist as soon as practicable.
P	12AB. Interim treatment under involuntary
d	treatment order
n	(1) This section applies to a person who is subject to an involuntary treatment order at
a
n	any time before he or she is examined by the
o
ti	authorised psychiatrist under section 12AC.
la	(2) If a registered medical practitioner employed
is	by the approved mental health service
g	considers that—
e	(a) the person requires any treatment
L	immediately; and
n
a	(b) the person is unable to consent to that
ri	treatment; and
to	(c) the treatment required is of such a
ic	nature that it would not be in the best
V	interests of the person to await

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examination by the authorised

psychiatrist under section 12AC—

ts	the practitioner may on behalf of the person
n	consent to the treatment being carried out
e	until the authorised psychiatrist examines the
m	person under section 12AC.
u	Note: In considering whether a person has refused or
c	is unable to consent to treatment, see
o	section 3A.
D	12AC. Examination by authorised psychiatrist
ry	(1) If an involuntary treatment order is made for
ta	a person, the authorised psychiatrist must
n	examine the person—
e	(a) if section 12(5) or 12AA(5) applies—as
m	soon as practicable after the order is
ia	made, but in any case within 24 hours
rl	after the order is made; or
a

(b) otherwise—within 24 hours after the order is made.

P
d

n	(2) On examining the person under sub-
a	section (1)—
n	(a) if the authorised psychiatrist considers
o
ti	that the criteria in section 8(1) do not apply to the person—the authorised
la	psychiatrist must discharge the person
is	from the order;
g
e	(b) if the authorised psychiatrist is satisfied
L	that the criteria in section 8(1) apply to
n	the person—the authorised psychiatrist
a
ri
must confirm the order.

(3) If the authorised psychiatrist confirms an

to	involuntary treatment order under sub-
ic	section (2)(b), he or she may make a
V	community treatment order under section 14 for the person.

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(4) If the authorised psychiatrist confirms the

involuntary treatment order under sub-
section (2)(b) but does not make a

ts	community treatment order under sub-
n	section (3)—
e

(a) the person is to be detained in the

m

u	approved mental health service; and
c	(b) if the person is not currently in the
o	approved mental health service, the
D	authorised psychiatrist may take the
ry	person, or arrange for the person to be
ta	taken, to the approved mental health
service.
n
e	(5) The authorised psychiatrist may confirm an
m	involuntary treatment order without making
ia	a community treatment order only if he or
rl	she is satisfied that the treatment required for
a	the person cannot be obtained through the
P	making of a community treatment order. (6) A registered medical practitioner who has
d
n	made a recommendation under section 9 in
a	respect of a person must not examine the
n	person under this section.
o
ti	12AD. Treatment for involuntary patients
la	(1) An involuntary patient is to be given
is	treatment for his or her mental illness.
g	(2) If an involuntary patient refuses to consent to
e	necessary treatment or is unable to consent to
L	treatment for his or her mental illness,
n	consent in writing may be given by the
a
ri	authorised psychiatrist.
to	Note: In considering whether a person has refused or is
ic
V
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12AE. Notification of guardian

If a person becomes an involuntary patient,

ts	the authorised psychiatrist must ensure that
n	any guardian of the person is notified that the
e	person has become an involuntary patient
m	and the grounds for the person becoming an
u	involuntary patient.".
c	10. Continued detention and treatment
o
D	(1) For section 12A(1) of the Principal Act
ry	substitute—
ta	"(1) This section applies to a person who is

detained in an approved mental health

n	service under an involuntary treatment order
e	that has been confirmed under section
m	12AC.".
ia
rl	(2) In section 12A(2) of the Principal Act, after
a	"authorised psychiatrist" (where secondly
P	occurring) insert ", despite discharging the person from the order under section 37(1),".
d
n	(3) After section 12D(2) of the Principal Act insert—
a

"(3) A person is discharged from their

n	involuntary treatment order on the making of
o
ti	an application by the chief psychiatrist under
la	sub-section (1) in relation to the person, but
is	the person remains an involuntary patient.".

11. New section 13 substituted

g

e	For section 13 of the Principal Act substitute—
L
"13. Admission to a general hospital or
n
a
ri

emergency department

(1) An involuntary treatment order may be made

to	for a person who—
ic	(a) satisfies the criteria in section 8(1); and
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(b) requires medical treatment which is life-sustaining or to prevent serious physical deterioration and which can

ts	only be appropriately provided in a
n	general hospital or emergency
e	department of the general hospital.
m
u	(2) This Division applies in relation to the
c	making of an involuntary treatment order for
o	a person referred to in sub-section (1) as if a
D	reference in this Division (other than in this
ry	section) to an approved mental health service
were a reference to the general hospital or
ta	emergency department of the general
n	hospital.
e

(3) If an involuntary treatment order is made for

m

ia	a person referred to in sub-section (1), the
rl	person is taken to be absent on leave from the appropriate approved mental health
a	service, but section 42 does not apply to the
P	person.".
d
n	12. New section 14 substituted and sections 14A to 14E
a	inserted
n	For section 14 of the Principal Act substitute—
o
ti	'14. Community treatment orders
la	(1) At any time, an authorised psychiatrist may
is	make a community treatment order for a
g	person who is subject to an involuntary
e	treatment order if the authorised psychiatrist
L	is satisfied that—
n	(a) the criteria in section 8(1) apply to the
a
ri	person; and

to	(b)	the treatment required for the person
ic	can be obtained through the making of
a community treatment order.
V

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(2) A community treatment order is an order

requiring the person to obtain treatment for their mental illness while not detained in an

ts	approved mental health service.
n
e	(3) A community treatment order—
m	(a) must specify the duration of the order,
u	which must not exceed 12 months; and
c
o	(b) may specify where the person must
D	live, if this is necessary for the
ry	treatment of the person's mental illness.
ta	(4) If an authorised psychiatrist makes a

community treatment order for a person, the

n

e authorised psychiatrist must—

(a) inform the person that the order has

m

been made; and

ia
rl

(b) give the person a copy of the order; and

a	(c) inform the person of the grounds on which the authorised psychiatrist
P
d	decided to make the order.
n
a	(5) On the expiry (other than by revocation) of a
n	community treatment order, or a person's
o	discharge from a community treatment order,
ti	the person's involuntary treatment order is
la	taken to expire and, consequently, the person
is	ceases to be an involuntary patient.
g	Note: A community treatment order can be extended
e	under section 14B before its expiry.
L	(6) Despite sub-section (5), the person does not
n	cease to be an involuntary patient if a
a
ri	hospital order or hospital transfer order is
to	made for the person.
ic
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order or restricted hospital transfer order. transfer order is made, the person remains an

ts	involuntary patient. If a hospital security order or restricted hospital transfer order is made, the
n	person becomes a security patient.
e

14A. Monitoring persons on community

m

u	treatment orders
c	(1) The supervising medical practitioner of a
o	person subject to a community treatment
D	order must assess the person at regular
ry	intervals.
ta	(2) In assessing the person, the supervising
n	medical practitioner must consider
e	whether—
m	(a) the criteria in section 8(1) still apply to
ia
rl	the person; and
a	(b) the treatment required for the person
P	can still be obtained under the order.
d	(3) If the supervising medical practitioner does
n	not consider that—
a

(a) the criteria in section 8(1) still apply to

n	the person; or
o
ti	(b) the treatment required for the person
la	can still be obtained under the order—
is	the supervising medical practitioner must
g	notify the monitoring psychiatrist as soon as
e	practicable.
L

(4) If the supervising medical practitioner

n

a	notifies the monitoring psychiatrist under
ri	sub-section (3), the monitoring psychiatrist
to	must examine the person subject to the order
ic	as soon as practicable.
V

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(5) In this section—

"monitoring psychiatrist" of a person

ts	subject to a community treatment order,
n	means the monitoring psychiatrist
e	specified in the person's treatment plan;
m	"supervising medical practitioner" of a
u	person subject to a community
c	treatment order, means the supervising
o	medical practitioner specified in the
D	person's treatment plan.
ry	14B. Extension of community treatment orders
ta	(1) The authorised psychiatrist may extend a
n	community treatment order for a period not
e	exceeding 12 months if the authorised
m	psychiatrist—
ia

rl	(a)	examines the person subject to the
a	order; and

P	(b) is satisfied that—
d	(i) the criteria in section 8(1) still
n
a	apply to the person; and
n	(ii) the treatment required for the
o	person can be obtained through
ti	the extension of the order.
la	(2) The extension takes effect from the time the
is	authorised psychiatrist makes the extension.
g
e	(3) There is no limit to the number of times a
L	community treatment order may be extended
n	under sub-section (1).
a
ri	(4) For the avoidance of doubt, a community

treatment order cannot be extended after it

to	has expired.
ic	(5) If an authorised psychiatrist extends a
V	person's community treatment order, the authorised psychiatrist must—

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(a) inform the person that the order has been extended; and

ts	(b)	give the person a copy of the extension;
n	and

e	(c) inform the person of the grounds on
m	which the authorised psychiatrist
u	decided to extend the order.
c
o	14C. Variation of community treatment orders
D	(1) The authorised psychiatrist may vary a
ry	community treatment order at any time.
ta	(2) If the authorised psychiatrist does so, he or
n	she must—
e	(a) inform the person that the order has
m	been varied; and
ia

rl	(b)	give the person a copy of the order as
a	varied; and
P	(c)	inform the person of the grounds on
d	which the authorised psychiatrist
n	decided to vary the order.

a	14D. Revocation of community treatment
n	orders
o
ti	(1) The authorised psychiatrist may revoke a
la	community treatment order if satisfied on
is	reasonable grounds that—
g	(a) the criteria in section 8(1) still apply to
e	the person subject to the order; and
L

(b) the treatment required for the person

n	cannot be obtained under the order.
a
ri	(2) The authorised psychiatrist may also revoke
to	a community treatment order if—
ic	(a) the authorised psychiatrist is satisfied on reasonable grounds that the person subject to the order has not complied
V

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with the order or the person's treatment

plan; and

ts	(b)	reasonable steps have been taken,
n	without success, to obtain compliance
e	with the order or plan; and

m	(c) the authorised psychiatrist is satisfied
u	on reasonable grounds that there is a
c	significant risk of deterioration in the
o	person's mental or physical condition
D	because of the non-compliance.
ry	(3) If the authorised psychiatrist revokes a
ta	community treatment order—
n	(a) the authorised psychiatrist must make
e	reasonable efforts to inform the person
m	that the order has been revoked and that
ia	the person must go to an approved
rl	mental health service; and
a
P	(b) the person remains an involuntary patient under the person's involuntary
d
n	treatment order and is taken to be
a	absent without leave from an approved mental health service.
n
o	Note: Section 43 provides for the apprehension
ti	of involuntary patients absent without
la	leave.
is	14E. Effect of person's detention in custody etc.
g	on involuntary treatment orders and
e	community treatment orders
L	(1) An involuntary treatment order or
n	community treatment order has no effect
a
ri	while a person subject to it is in custody under a sentence of imprisonment or under
to	any order of a court requiring the person to
ic	be held in custody.
V

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(2) A community treatment order to which sub-

section (1) applies expires at the time it
would otherwise have expired under this Act

ts	despite any period during which it has no
n	effect.
e
Note:  See section 14(5) for the effect of the expiry of
m	a community treatment order on the person's
u	involuntary treatment order.
c
o	(3) For the purposes of sub-section (1), a person
D	is in custody if the person is held in—
ry	(a) a prison; or
ta	(b) a remand centre, youth residential
n	centre or youth training centre (within
e	the meaning of the Children and
m	Young Persons Act 1989); or
ia	(c) a police gaol within the meaning of the
rl	Corrections Act 1986.
a

(4) A person is discharged from his or her involuntary treatment order and community

P

d	treatment order (if any) on the making of a
n
a	hospital order, hospital transfer order, hospital security order or restricted hospital
n	transfer order for the person.'.
o
ti	13. Persons convicted of offences or in prison
la	(1) For section 15(1) of the Principal Act
is	substitute—
g
e	"(1) If an order is made under section 36B(2) or
L	37(4) for a person to be discharged from his
n	or her assessment order or diagnosis,
a	assessment and treatment order, the Board or
ri	chief psychiatrist (as the case requires) must
to	immediately notify the court.".
ic	(2) In section 15A(2) of the Principal Act, omit
V	"under section 93(1)(d) of the Sentencing Act 1991". Mental Health (Amendment) Act 2003

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(3) For section 15A(4) and (5) of the Principal Act

substitute—

ts	"(4) A restricted community treatment order is an
n	order requiring the person to obtain
e	treatment for their mental illness while not
m	detained in an approved mental health
u	service.
c	(5) A restricted community treatment order must
o	specify—
D

(a) the duration of the order, which must

ry	not exceed 12 months; and
ta	(b) any conditions that the chief
n
e	psychiatrist considers appropriate.

(5A) If the chief psychiatrist makes a restricted

m

ia	community treatment order for a person, the
rl	chief psychiatrist must—
a	(a) inform the person that the order has
P	been made; and
d	(b) give the person a copy of the order; and
n
a	(c) inform the person of the grounds on
n	which the chief psychiatrist decided to
o
ti
make the order.".

(4) In section 15A(9) of the Principal Act, for

la	"section 36(2A)(c)" substitute "section 36D".
is	14. New section 15AB inserted
g
e	After section 15A of the Principal Act insert—
L

'15AB. Monitoring persons on restricted

n	community treatment orders
a
ri	(1) The monitoring psychiatrist of a person
to	subject to a restricted community treatment
ic	order must assess the person at regular
V	intervals.

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(2) In assessing the person, the monitoring psychiatrist must consider whether—

ts	(a)	the criteria in section 15A(1) still apply
n	to the person; and

e	(b) the treatment required for the person
m	can still be obtained under the order.
u
c	(3) If the monitoring psychiatrist does not
o	consider that—
D	(a) the criteria in section 15A(1) still apply
ry	to the person; or

ta	(b)	the treatment required for the person
n	can still be obtained under the order—

e	the monitoring psychiatrist must notify the
m	chief psychiatrist as soon as practicable.
ia
rl	(4) If the monitoring psychiatrist notifies the
a	chief psychiatrist under sub-section (3), the
P	chief psychiatrist must examine the person subject to the order as soon as practicable.
d
n	(5) In this section—
a	"monitoring psychiatrist" of a person
n	subject to a restricted community
o
ti	treatment order, means the monitoring
psychiatrist specified in the person's
la	treatment plan.'.
is	15. New sections 15B and 15C substituted and sections
g
e	15D and 15E inserted
L	For sections 15B and 15C of the Principal Act
n	substitute—
a
ri	"15B. Extension of restricted community
to	treatment orders
ic	(1) The chief psychiatrist may extend a
V	restricted community treatment order for a

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period not exceeding 12 months if the chief

psychiatrist—

ts	(a)	examines the person subject to the
n	order; and

e	(b) is satisfied that—
m	(i) the criteria in section 15A(1) still
u
c	apply to the person; and
o	(ii) the treatment required for the
D	person can be obtained through
ry	the extension of the order.
ta	(2) The extension takes effect from the time the
n	chief psychiatrist makes the extension.
e	(3) There is no limit to the number of times a
m	restricted community treatment order may be
ia	extended under sub-section (1).
rl	(4) If the chief psychiatrist extends a person's
a
P	restricted community treatment order, the chief psychiatrist must—
d
n	(a) inform the person that the order has
a	been extended; and
n	(b) give the person a copy of the extension;
o
ti	and

la	(c)	inform the person of the grounds on
is	which the chief psychiatrist decided to
g	extend the order.

e	15C. Variation of restricted community
L	treatment orders
n	(1) The chief psychiatrist may vary a restricted
a
ri	community treatment order at any time.
to	(2) If the chief psychiatrist does so, the chief
ic	psychiatrist must—

V (a) inform the person that the order has been varied; and

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(b) give the person a copy of the order as varied; and

ts	(c)	inform the person of the grounds on
n	which the chief psychiatrist decided to
e	vary the order.

m	15D. Revocation of restricted community
u	treatment orders
c
o	(1) The chief psychiatrist may revoke a
D	restricted community treatment order if
ry	satisfied on reasonable grounds that—
ta	(a) the criteria in section 93(1)(b) of the

Sentencing Act 1991 apply to the

n	person subject to the order but the
e	criteria in section 15A(1) of this Act do
m	not; or
ia

rl	(b)	the person subject to the order has
a	failed to comply with the order or the
P	person's treatment plan.

d	(2) If the chief psychiatrist revokes a restricted
n	community treatment order—
a

(a) the chief psychiatrist must make

n	reasonable efforts to inform the person
o
ti	that the order has been revoked and that
la	the person must go to an approved
is	mental health service; and

(b) the person remains an involuntary

g

e	patient under the person's hospital order
L	who is taken to be absent without leave
n	from an approved mental health
a
ri
service.
Note: Section 43 provides for the apprehension
to	of involuntary patients absent without
ic
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15E. Effect of person's detention etc. on restricted community treatment orders

ts	(1) A hospital order or restricted community
n	treatment order has no effect while a person
e	subject to it is in custody under a sentence of
m	imprisonment or under any order of a court
u	requiring the person to be held in custody.
c	(2) A restricted community treatment order to
o	which sub-section (1) applies expires at the
D	time it would otherwise have expired under
ry	this Act despite any period during which it
ta	has no effect.
n	(3) For the purposes of sub-section (1), a person
e	is in custody if the person is held in—
m	(a) a prison; or
ia
rl	(b) a remand centre, youth residential
a	centre or youth training centre (within
P	the meaning of the Children and Young Persons Act 1989); or
d
n	(c) a police gaol within the meaning of the
a	Corrections Act 1986.".
n	16. Transfer of mentally ill prisoners
o
ti	(1) In section 16(1) and (2) of the Principal Act, for
la	"a hospital order" substitute "an order under this
is	section".
g	(2) For section 16(3) of the Principal Act
e	substitute—
L
'(3) The Secretary to the Department of Justice
n
a	may make either of the following orders
ri	under this section—
to	(a) an order under which the person is
ic	admitted to and detained in an approved
V	mental health service as an involuntary patient ("hospital transfer order");

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(b) an order under which the person is admitted to and detained in an approved mental health service as a security

ts	patient ("restricted hospital transfer
n	order").'.
e

(3) In section 16(4) of the Principal Act, for "hospital

m

u	order or a restricted hospital order" substitute
c	"hospital transfer order or restricted hospital
o	transfer order,".
D	17. Statement of patient's rights
ry	In section 18(1) of the Principal Act—
ta	(a) for "patient must upon admission to an
n	approved mental health service be given"
e	substitute "person on becoming a patient
m	must be given";
ia

rl	(b)	in paragraph (b), for "hospitalization"
a	substitute "treatment and care".

P	18. New section 19A inserted
d	After section 19 of the Principal Act insert—
n
a	'19A. Treatment plans
n	(1) The authorised psychiatrist must prepare,
o
ti	review on a regular basis and revise as
la	required, a treatment plan for each patient.
is	(2) In preparing, reviewing and revising a
g	treatment plan for a patient, the authorised
e	psychiatrist must take into account—
L	(a) the wishes of the patient, as far as they
n	can be ascertained; and
a

ri	(b)	unless the patient objects, the wishes of
to	any guardian, family member or
primary carer who is involved in
ic	providing ongoing care or support to
V	the patient; and

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(c) whether the treatment to be carried out is only to promote and maintain the

ts	patient's health or well-being; and
n	(d) any beneficial alternative treatments
e	available; and
m	(e) the nature and degree of any significant
u	risks associated with the treatment or
c	any alternative treatment; and
o
D	(f) any prescribed matters.
ry	(3) The treatment plan for a patient who is
ta	detained in an approved mental health
service must contain an outline of the
n
e	treatment the patient is to receive.

(4) The treatment plan for a patient who is

m

ia	subject to a community treatment order or
rl	restricted community treatment order must
a	contain or specify—

P	(a)	an outline of the treatment the patient is
d	to receive; and

n	(b) the authorised psychiatrist or delegate of the authorised psychiatrist who is to
a
n	monitor the patient's treatment
o
ti	("monitoring psychiatrist"); and
la	(c) the registered medical practitioner who
is	is to supervise the patient's treatment
g	("supervising medical practitioner");
e	and
L	(d) the patient's case manager; and
n
a	(e) the place at which the patient is to
ri	receive treatment; and
to	(f) the times at which the patient is
ic	required to attend to receive treatment;
V	and

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(g) the intervals at which—

(i) for a community treatment

ts	order—the supervising medical
n	practitioner must submit a written
e	report concerning the patient's
m	treatment to the monitoring
u	psychiatrist;
c	(ii) for a restricted community
o	treatment order—the monitoring
D	psychiatrist must submit a written
ry	report concerning the patient's
ta	treatment to the chief psychiatrist.
n	(5) A treatment plan may contain anything else
e	the authorised psychiatrist thinks
m	appropriate.
ia	(6) The authorised psychiatrist must—
rl
a	(a) give the patient a copy of the patient's
P	treatment plan and any revisions to it; and
d
n	(b) discuss the treatment plan with the
a	patient.'.
n	19. Appeals and reviews
o
ti	(1) For section 22(1)(a) and (b) of the Principal Act
la	substitute—
is	"(a) to hear appeals by or on behalf of
g	involuntary patients and security patients;
e
L	(b) to review periodically the orders made for
n	involuntary patients and security patients and
a	their treatment plans;".
ri
to
ic
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(2) For section 29(1) of the Principal Act

substitute—

ts	"(1) An appeal may be made to the Board at any
n	time—
e	(a) by an involuntary patient—
m	(i) against his or her involuntary
u
c	treatment order, community
o	treatment order, hospital order,
D	restricted community treatment order, assessment order, diagnosis,
ry	assessment and treatment order or
ta	hospital transfer order; or
n	(ii) against his or her continued
e	detention under section 12A(4)
m	or 12C;
ia

rl	(b)	by a security patient against his or her
a	hospital security order or restricted
P	hospital transfer order.

d	(1A) An appeal to the Board may also be made at
n	any time on behalf of an involuntary patient
a	or security patient by a community visitor or
n	any other person who satisfies the Board of a
o	genuine concern for the involuntary patient
ti	or security patient.".
la	20. New sections 30 and 31 substituted
is
g	For sections 30 and 31 of the Principal Act
e	substitute—
L	"30. Reviews
n
a	(1) The Board must conduct an initial review
ri	of—
to	(a) an involuntary treatment order, hospital
ic	order, assessment order, diagnosis,
V	assessment and treatment order or

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hospital transfer order to which an

involuntary patient is subject;

ts	(b)	a hospital security order or restricted
n	hospital transfer order to which a
e	security patient is subject—

m	within 8 weeks after the order is made.
u
c	(2) The Board must conduct an initial review of
o	the continued detention of an involuntary
D	patient under section 12C within 14 days after the day on which the committee
ry	consented under section 12B to the
ta	continued detention.
n	(3) The Board must conduct a periodic review
e	of—
m
ia	(a) an involuntary treatment order, hospital
rl	order, assessment order, diagnosis,
a	assessment and treatment order or
P	hospital transfer order to which an involuntary patient is subject;
d
n	(b) a hospital security order or restricted
a	hospital transfer order to which a
n	security patient is subject;
o

ti	(c)	the continued detention of an
la	involuntary patient under
is	section 12C—

g	at intervals not exceeding 12 months
e	following the initial review.
L	(4) The Board must conduct a review of the
n	extension of a community treatment order or
a
ri	restricted community treatment order within
8 weeks after the order is extended.
to	(5) The Board must conduct a review of a
ic	restricted community treatment order as soon
V	as practicable after receiving a copy of the order under section 15A(6).

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31.  Appeals and reviews may be held concurrently

ts	The Board may conduct more than one
n	appeal or review (or both) in respect of the
e	same person concurrently.".
m	21. Further amendments regarding appeals and reviews
u
c	(1) After section 32(1) of the Principal Act insert—
o	"(1A) The authorised psychiatrist must give a copy
D	of the notice to the patient's case manager as
ry	soon as practicable after receiving the
ta	notice.".
n	(2) For section 32(2)(c) of the Principal Act
e	substitute—
m	"(c) the legal status under this Act of the person
ia	to whom the hearing relates; and".
rl	22. New section 35A inserted
a
P	After section 35 of the Principal Act insert—
d	"35A. Review of treatment plans
n
a	(1) On each appeal and review under this
n	Division, the Board must review the patient's
o
ti
treatment plan to determine whether—

(a) the authorised psychiatrist has complied

la	with section 19A in making, reviewing
is	or revising the plan (as the case may
g	be); and
e
L	(b) the plan is capable of being implemented by the approved mental
n	health service.
a
ri	(2) The Board may order the authorised
to	psychiatrist to revise the treatment plan, if
ic	the Board is satisfied that—
V

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(a) the authorised psychiatrist has not complied with section 19A in making,

ts	reviewing or revising the plan; or
n	(b) the plan is not capable of being
e	implemented by the approved mental
m	health service.".
u	23. New section 36 substituted and sections 36A to 36E
c	inserted
o
D	For section 36 of the Principal Act substitute—
ry	"36. Power of Board on appeal or review of
ta	involuntary treatment orders—patients
who are detained
n
e	(1) This section applies on an appeal or review
m	for a patient who is detained in an approved
ia	mental health service under an involuntary
rl	treatment order.
a	(2) If the Board considers that the criteria in
P	section 8(1) do not apply to the patient, the
d	Board must order that the patient be
n	discharged from the involuntary treatment
a	order.
n	(3) If the Board is satisfied that the criteria in
o
ti	section 8(1) apply to the patient, the Board
la	must confirm the involuntary treatment
is	order.

(4) If the Board confirms the involuntary

g

e	treatment order, the Board may order the
L	authorised psychiatrist to make a community
n	treatment order for the patient within a
a	reasonable period specified by the Board, if
ri	the Board considers that the treatment
to	required for the person can be obtained
ic	through the making of a community
treatment order.
V

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(5) The authorised psychiatrist may apply to the

Board, at any time during the period
specified under sub-section (4), for the Board

ts	to reconsider an order made under that sub-
n	section.
e

(6) Sections 31 to 35 and this section apply to an

m

u	application under sub-section (5) as if it were
c	a review.
o	Note: The Board must take various factors into
D	consideration in deciding what to do on the
ry	appeal or review, including the patient's social
circumstances—see section 22(2).
ta	36A. Power of Board on appeal or review of
n	hospital transfer orders
e

(1) This section applies on an appeal or review

m

ia	for a patient who is detained in an approved
rl	mental health service under a hospital
a	transfer order.
P	(2) If the Board considers that the continued
d	detention of the patient as an involuntary
n	patient is unnecessary, the Board must order
a	that the patient be discharged from the
n	hospital transfer order and be returned to a
o	prison or other place of confinement (within
ti	the meaning of section 16).
la	(3) If the Board considers that the continued
is	detention of the patient as an involuntary
g	patient is necessary, the Board must confirm
e	the hospital transfer order.
L

(4) The Board must have regard to the criteria in

n

a	section 16(2)(a) and (4) in making a decision
ri	on the appeal or review.
to
ic
V

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36B. Power of Board on appeal or review of orders under the Sentencing Act 1991—

ts	patients who are detained
n	(1) This section applies on an appeal or review
e	for a patient who is detained in an approved
m	mental health service under a hospital order,
u	an assessment order or a diagnosis,
c	assessment and treatment order.
o	(2) If the Board considers that the continued
D	detention of the patient as an involuntary
ry	patient is unnecessary, the Board must order
ta	that the patient be discharged from the order.
n	(3) If the Board considers that the continued
e	detention of the patient as an involuntary
m	patient is necessary, the Board must confirm
ia	the order.
rl	(4) The Board must have regard to the criteria in
a	section 90(b), 91(b) or 93(1)(b) of the
P	Sentencing Act 1991 (as the case requires)
d	in making a decision on the appeal or review.
n
a	36C. Power of Board on appeal or review for patients on community treatment orders
n
o	(1) This section applies on an appeal or review
ti	for a patient who is subject to a community
la	treatment order.
is	(2) If the Board considers that the criteria in
g	section 8(1) do not apply to the patient, the
e	Board must order that the patient be
L	discharged from the community treatment
n	order.
a
ri	Note:  See section 14(5) for the effect of the discharge
to	from a community treatment order on the
patient's involuntary treatment order.
ic	(3) If the Board is satisfied that the criteria in
V	section 8(1) apply to the patient—the Board may—

Mental Health (Amendment) Act 2003

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(a) confirm or vary the community treatment order; or

ts	(b)	revoke the community treatment order
n	if satisfied on reasonable grounds that
e	the treatment required for the patient
m	cannot be obtained under the order.

u	(4) The Board may also revoke a community
c	treatment order if—
o
D	(a) the Board is satisfied on reasonable grounds that the patient has not
ry	complied with the order or the patient's
ta	treatment plan; and
n	(b) reasonable steps have been taken,
e	without success, to obtain compliance
m	with the order or plan; and
ia

rl	(c)	the Board is satisfied on reasonable
a	grounds that there is a significant risk
P	of deterioration in the patient's mental or physical condition because of the
d
n	non-compliance.

a	(5) If the Board revokes a community treatment
n	order—
o

ti	(a)	the Board must make reasonable efforts
la	to inform the patient that the order has
been revoked and that the patient must
is	go to an approved mental health
g	service; and
e
L	(b)	the patient remains an involuntary
n	patient under his or her involuntary
a	treatment order and is taken to be
ri	absent without leave from an approved
to	mental health service.
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(6) If the Board varies a community treatment order, the Board must—

ts	(a)	inform the person that the order has
n	been varied; and

e	(b) give the person a copy of the order as
m	varied; and
u
c	(c) inform the person of the grounds on
o	which the Board decided to vary the
D	order.
ry	36D. Power of Board on appeal or review for
ta	patients on restricted community
treatment orders
n
e	(1) This section applies on an appeal or review
m	for a patient who is subject to a restricted
ia
rl
community treatment order.

(2) If the Board considers that neither the criteria

a	in section 93(1)(b) of the Sentencing Act
P	1991 nor the criteria in section 15A(1) of this
d	Act apply to the patient, the Board must
n	order that the patient be discharged from the
a	restricted community treatment order.
n	Note:  See section 37(6) for the effect of the discharge
o
ti	from a restricted community treatment order
on the patient's hospital order.
la	(3) If the Board considers that the criteria in
is	section 93(1)(b) of the Sentencing Act 1991
g	do not apply to the patient but the criteria in
e	section 15A(1) of this Act do apply, the
L	Board may—
n
a	(a) in the case of a review under
ri	section 30(4)—approve the restricted
to	community treatment order; or

ic	(b)	in any other case—confirm the
V	restricted community treatment order.

Mental Health (Amendment) Act 2003

Act No. 76/2003

Part 2—Amendments Relating to Involuntary Patients

s. 23

(4) The Board may revoke a restricted community treatment order if satisfied that—

ts	(a)	the criteria in section 93(1)(b) of the
n	Sentencing Act 1991 apply to the
e	person subject to the order but the
m	criteria in section 15A(1) of this Act do
u	not; or

c	(b) the person subject to the order has
o	failed to comply with the order or the
D	person's treatment plan.
ry	(5) If the Board revokes a restricted community
ta	treatment order—
n	(a) the Board must make reasonable efforts
e	to inform the patient that the order has
m	been revoked and that the patient must
ia	go to an approved mental health
rl	service; and
a
P	(b) the patient remains an involuntary patient under his or her hospital order
d
n	and is taken to be absent without leave
a	from an approved mental health service.
n
o	Note: Section 43 provides for the apprehension
ti	of involuntary patients absent without
la	leave.
is	(6) On the discharge by the Board of a patient
g	from a restricted community treatment order,
e	the patient is taken to be discharged from his
L	or her hospital order and, consequently, he or
n	she ceases to be an involuntary patient.
a
ri	36E. Power of Board on appeal or review— continued detention under section 12A(4)
to	or 12C
ic	(1) This section applies on an appeal or review
V	for a patient whose detention has been continued under section 12A(4) or 12C.

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Part 2—Amendments Relating to Involuntary Patients

s. 24

(2) If the Board is not satisfied that the continued detention of the patient is necessary, the Board must order that the

ts	patient be discharged as an involuntary
n	patient.
e

(3) The Board must have regard to the criteria in

m

u	section 12A(2) in making a decision on the
c	appeal or review.".
o	24. New section 37 substituted
D
ry	For section 37 of the Principal Act substitute—
ta	"37. Discharge of involuntary patients
n	(1) If the authorised psychiatrist considers that
e	the criteria in section 8(1) do not apply to a
m	person who is detained in the approved
ia	mental health service as an involuntary
rl	patient under an involuntary treatment order,
a	the authorised psychiatrist must discharge
P	the person from the involuntary treatment order.
d
n	(2) If the authorised psychiatrist considers that
a	the criteria in section 8(1) do not apply to a
n	person who is receiving treatment from the
o	approved mental health service under a
ti	community treatment order, the authorised
la	psychiatrist must discharge the person from
is	the community treatment order.
g	Note:  See section 14(5) for the effect of the discharge
e	from a community treatment order on the
L	person's involuntary treatment order.
n	(3) If the chief psychiatrist, having regard to the criteria in section 16(2)(a) and (4), considers that the continued detention of a person in an
a
ri
to	approved mental health service under a
ic	hospital transfer order is unnecessary, the
V	chief psychiatrist must, after advising the Secretary to the Department of Justice, order

Mental Health (Amendment) Act 2003

Act No. 76/2003

Part 2—Amendments Relating to Involuntary Patients

s. 24

that the person be discharged from the order and be returned to a prison or other place of confinement (within the meaning of

ts	section 16).
n
e	(4) If the chief psychiatrist, having regard to the
m	criteria in section 90(b), 91(b) or 93(1)(b) of
u	the Sentencing Act 1991 (as the case
c	requires), considers that the continued
o	detention of a person in an approved mental
D	health service under an assessment order, a
ry	diagnosis, assessment and treatment order or
a hospital order is unnecessary, the chief
ta	psychiatrist must order that the person be
n	discharged from the order.
e

(5) If the chief psychiatrist considers that neither

m

ia	the criteria in section 93(1)(b) of the
rl	Sentencing Act 1991 nor the criteria in
section 15A(1) of this Act apply to a person
a	who is subject to a restricted community
P	treatment order, the chief psychiatrist must
d	discharge the person from the restricted
n	community treatment order.
a

(6) On the discharge of a person from a

n

o	restricted community treatment order, the
ti	person is taken to be discharged from his or
la	her hospital order and, consequently, he or
is	she ceases to be an involuntary patient. (7) For the avoidance of doubt, a person who is
g
e	discharged from an involuntary treatment
L	order under sub-section (1) remains an
n	involuntary patient if the authorised
a
ri	psychiatrist makes an application under
section 12A for approval of the continued
to	detention and treatment of the person.".
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s. 25

25. Consequential amendments

(1) In section 38(a) of the Principal Act, for

ts	"section 36(3)" substitute "section 36A(2)".
n	(2) For section 39(7) of the Principal Act
e	substitute—
m	"(7) On an appeal under sub-section (5), the
u
c	Board may—
o	(a) confirm the transfer order; or
D
(b) refuse to confirm the order and, if the
ry	patient has already been transferred
ta	under the order, direct that the patient
n	be transferred back.".
e	(3) In section 42(4) of the Principal Act, for "32 and
m	36" substitute "31 to 35".
ia
rl	(4) In section 43 of the Principal Act—
a	(a) in sub-section (1)(a), for "section 9"
P	substitute "section 7";
d	(b) in sub-section (1A), for "Sub-sections (5),
n	(6) and (7) of section 9 apply" substitute
a	"Section 9B applies".
n
o
ti

(5) In the Principal Act—

(a) in section 53—

la

is (i) in sub-section (1)(a), for "section 9"

substitute "section 7";

g

e	(ii) in sub-section (1A), for "Sub-sections
L	(5), (6) and (7) of section 9 apply"
n	substitute "Section 9B applies";
a
ri	(b) in section 53AD—

to	(i)	in sub-section (1)(a), for "section 9"
ic	substitute "section 7";
V

Mental Health (Amendment) Act 2003

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s. 26

(ii)  in sub-section (2), for "Sub-sections (5), (6) and (7) of section 9 apply"

ts	substitute "Section 9B applies".
n	26. Interstate provisions
e	(1) In the Principal Act—
m	(a) in section 93A, in the definition of
u
c	"prescribed person", for "section 9(8)"
o	substitute "section 7";
D	(b) in section 93E(1) omit ", admitted to";
ry	(c) in section 93E(4), for "Sub-sections (5), (6)
ta	and (7) of section 9 apply" substitute
n	"Section 9B applies".
e	(2) For section 93F(1) of the Principal Act
m	substitute—
ia
rl	"(1) A person who may be taken to and detained
a	in an interstate mental health facility under a
P	corresponding law may instead be made subject to an involuntary treatment order or
d	community treatment order under this Act
n
a	and may be taken to an approved mental health service for that purpose.".
n
o
ti

(3) In the Principal Act—

(a) in section 93F(3)—

la

is	(i) in paragraph (a), omit "admission and";
g	(ii) in paragraph (b), for "section 9; and"
e	substitute "section 9.";
L

(iii) paragraph (c) is repealed;

n

a	(b) section 93G(1)(a) is repealed;
ri	(c) for section 93G(3)(b) substitute—
to
ic	"(b) otherwise, it must refuse to confirm the

transfer order.";

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s. 26

(d) in section 93G(6), after "facility" insert "or on being made subject to a corresponding

ts	order";
n	(e) for section 93G(7)(a) substitute—
e	"(a) a prescribed person; or";
m	(f) in section 93G(8), for "Sub-sections (5), (6)
u
c	and (7) of section 9 apply" substitute
o	"Section 9B applies".
D	(4) After section 93G(8) of the Principal Act insert—
ry	"(9) This section does not apply to an involuntary
ta	patient who is subject to a hospital transfer
n	order, an assessment order or a diagnosis,
e	assessment and treatment order.".
m	(5) For section 93H(1) of the Principal Act
ia	substitute—
rl	"(1) A person who is involuntarily detained in an
a
P	interstate mental health facility under a corresponding law, or who is subject to a
d	corresponding order, may be—
n

a	(a)	transferred to this State in accordance
n	with the corresponding law; and
o

ti (b) made subject to an involuntary

treatment order or community treatment

la	order; and
is	(c) taken to an approved mental health
g
e	service for that purpose, if necessary to
L	do so.".
n	(6) In the Principal Act—
a
ri	(a) for section 93H(2)(a) substitute—
to	"(a) a prescribed person; or";
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s. 27

(b) in section 93H(3)—

(i) in paragraph (b), for "section 9; and"

ts	substitute "section 9.";
n	(ii) paragraph (c) is repealed;
e

(c) for section 93K(1)(b) substitute— "(b) a prescribed person; or";

m
u
c

o	(d) in section 93K(4), for "Sub-sections (5), (6)
D	and (7) of section 9 apply" substitute
ry	"Section 9B applies";

(e) in section 93K(5) omit "admitted to and";

ta	(f) at the foot of section 93K(5) insert—
n

e	"Note:	A person detained under sub-section (5) is an
m	involuntary patient (see section 3(1)) and is to
ia	be treated for his or her mental illness (see
rl	section 12AD).";

a	(g) for section 93L(b) substitute—
P	"(b) a prescribed person; or".
d	27. Further consequential amendments
n
a	(1) In section 96(5) of the Principal Act, for "section
n	12" substitute "section 12AC".
o
ti	(2) For section 106AB(1) of the Principal Act
la	substitute—
is	"(1) Despite anything to the contrary in Division
g	2 of Part 3, the chief psychiatrist, by written
e	notice, may direct that a person be made
L	subject to an involuntary treatment order
n	under section 12AA.".
a
ri	(3) In section 106AB(3) of the Principal Act, for

"Section 12 applies" substitute "Sections 12AA

to	to 12AC apply".
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s. 27

(4) For section 121(1) of the Principal Act

substitute—

ts	"(1) If it appears that any document relating to a
n	person becoming an involuntary patient is in
e	any respect incorrect or defective, the person
m	who signed the document may amend it
u	within 21 days after the person to whom it
c	relates becomes an involuntary patient.".
o	(5) In the Principal Act—
D

(a) in section 121—

ry

ta (i) in sub-section (2), for "the admission of

an involuntary patient" substitute "a

n	person becoming an involuntary
e	patient";
m
ia	(ii) in sub-section (3), for "on which an
rl	involuntary patient has been admitted
a	to an approved mental health service"
P	substitute "relating to a person becoming an involuntary patient";
d
n	(b) in section 123—
a

(i) in sub-section (1), after "in connection

n	with" insert "the making of an
o
ti	involuntary treatment order or";
la	(ii) in sub-section (2), after "A person may
is	be" insert "made subject to an
g	involuntary treatment order or";
e	(c) in section 124(1), 125 and 126(1) and (2),
L	after "in connection with" insert "the making
n	of an involuntary treatment order or";
a
ri
to
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s. 28

(d) for section 132(1)(a) substitute—

"(a) the person is absent from an approved

ts	mental health service in accordance
n	with section 40 or 41 or is subject to a
e	community treatment order or restricted
m	community treatment order; or".
u	28. Transitional provisions
c
o	At the end of section 149 of the Principal Act
D	insert—
ry	'(2) A person who, immediately before the
ta	commencement day, was detained in an
approved mental health service under
n	section 12 (as in force at that time) is to be
e	taken, on and after the commencement day,
m	to have been placed on an involuntary
ia	treatment order at the time the person was
rl	admitted to the approved mental health
a	service.
P

(3) A person who, immediately before the

d

n	commencement day, was subject to a
a	hospital order made under section 16(3)(a) (as in force at that time) is taken, on and after
n
o	the commencement day, to be subject to a
ti	hospital transfer order under section 16(3)(a)
la	as substituted by section 16(2) of the
is	amending Act.
g	(4) A person who, immediately before the
e	commencement day, was subject to a
L	restricted hospital order made under section
n	16(3)(b) (as in force at that time) is taken, on
a	and after the commencement day, to be
ri	subject to a restricted hospital transfer order
to	under section 16(3)(b) as substituted by
ic	section 16(2) of the amending Act.
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s. 28

(5) A reference in any instrument to a hospital

order made under section 16(3)(a) or a
restricted hospital order made under section

ts	16(3)(b) is taken, in relation to anything
n	occurring on or after the commencement
e	day, to be a reference respectively to a
m	hospital transfer order or restricted hospital
u	transfer order.
c
o	(6) Section 19A (treatment plans) applies in
D	respect of a patient, whether he or she
ry	became a patient before, on or after the
commencement day and, if he or she became
ta	a patient before the commencement day, the
n	treatment plan must be prepared within
e	6 months after that day.
m	(7) For the period of 6 months after the
ia
rl	commencement day, section 35A (review of
treatment plans) does not apply on an appeal
a	or review for a person who became a patient
P	before the commencement day unless a
d	treatment plan has been prepared for the
n	patient.
a

(8) In this section—

n
o

ti "amending Act" means the Mental Health

(Amendment) Act 2003;

la	"commencement day" means the day on
is	which section 28 of the amending Act
g
e	comes into operation.'.
L	__________________
n
a
ri
to
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Mental Health (Amendment) Act 2003

Act No. 76/2003

Part 3—Confidentiality and Other Amendments

s. 29

PART 3—CONFIDENTIALITY AND OTHER AMENDMENTS

ts	29. Definition
n	In section 3(1) of the Principal Act, for the
e	definition of "approved mental health service"
m	substitute—
u
c	' "approved mental health service" means
o	premises or a service—
D	(a) proclaimed to be an approved mental
ry	health service under section 94,
ta	including the Victorian Institute of
n	Forensic Mental Health; or

e	(b)	declared to be an approved mental
m	health service under section 94A;'.
ia

rl	30. Secrecy provision—staff of Boards
a	In the Principal Act—
P	(a) in section 35(1)(a), after "Board" insert "or
d	member of staff of the Board";
n
a	(b) in section 63(1)(a), after "Board" insert "or a person employed or engaged to assist the
n	Psychosurgery Review Board".
o
ti	31. Non-psychiatric treatment
la	In section 83(2) of the Principal Act, omit "in
is	writing".
g
e	32. New headings in Division 1 of Part 6
L	(1) For the heading to Division 1 of Part 6 of the
n	Principal Act substitute—
a
ri	"Division 1—Approved Mental Health
to	Services".
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s. 33

(2) Insert the following heading to section 94 of the Principal Act—

ts	"Proclamation of approved mental health
n	services".
e	33. New section 94A inserted
m
u	After section 94 of the Principal Act insert—
c	"94A. Emergency declaration of approved
o	mental health services
D

(1) The Secretary, by notice published in the

ry	Government Gazette, may declare—
ta	(a) any premises (including part of any
n	building or place) at which treatment is
e	to be provided to patients; or
m
ia	(b) any service through which treatment is
rl	to be provided to patients—
a	to be an approved mental health service.
P	(2) The Secretary may make a declaration under
d	sub-section (1) only if he or she is satisfied
n	that an emergency exists and it is
a	impracticable in the circumstances for a
n	proclamation to be made under section 94.
o
ti	(3) A declaration under this section has effect
la	for the period, not exceeding 7 days, stated
is	in the notice of declaration.".
g	34. New section 95 substituted
e
L	For section 95 of the Principal Act substitute—
n	"95. Appointment of registered medical
a
ri	practitioners
The Secretary may employ or engage as
to	many registered medical practitioners as are
ic	necessary for the purposes of this Act.".
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Part 3—Confidentiality and Other Amendments

s. 35

35. Confidentiality

(1) In section 120A(1) of the Principal Act—

ts	(a) insert the following definition—
n
e	' "public sector mental health service"

means—

m

u	(a) a relevant psychiatric service that
c	is—
o
D	(i) a public hospital,

denominational hospital or

ry	privately-operated hospital
ta	(within the meaning of the
n	Health Services Act 1988);
e	and
m	(ii) funded by the Secretary; or
ia

rl	(b)	a relevant psychiatric service that
a	is declared, or to the extent that it
P	is declared, by an Order under sub-section (1A) to be a public
d	sector mental health service;';
n
a	(b)	in the definition of "relevant person", in
n	paragraph (d), for "employed in" substitute
o
ti
"employed by or on behalf of";

(c) in the definition of "relevant psychiatric

la	service"—
is	(i) after "means" insert "a person or body
g
e	to the extent that he, she or it provides
L	or operates one or more of";
n	(ii) in paragraph (g), for "community health
a
ri	service" substitute "community health
centre".
to
ic
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Mental Health (Amendment) Act 2003

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Part 3—Confidentiality and Other Amendments

s. 35

(2) After section 120A(1) of the Principal Act

insert—

ts	"(1A) The Governor in Council may, by Order
n	published in the Government Gazette,
e	declare a relevant psychiatric service to be,
m	either wholly or to the extent specified in the
u	Order, a public sector mental health
c	service.".
o	(3) In section 120A(2) of the Principal Act, for
D	"patient in" substitute "patient of".
ry	(4) After section 120A(2A) of the Principal Act
ta	insert—
n	"(2B) Sub-section (2) does not apply to a person
e	(other than an independent contractor) who
m	is a relevant person in relation to a relevant
ia	psychiatric service who gives information in
rl	accordance with HPP2 of the Health Privacy
a	Principles in the Health Records Act 2001
P	to another person (other than an independent
d	contractor) who is a relevant person in
n	relation to that relevant psychiatric service.".
a

(5) In section 120A(3) of the Principal Act— (a) in paragraph (c), for "patient in" substitute

n
o

ti	"patient of";
la	(b) for paragraph (e)(ii) substitute—
is	"(ii) subject to the regulations (if any), by a
g
e	person engaged or employed by or on
L	behalf of a public sector mental health
n	service by means of an electronic
a	records system established and
ri	maintained by the Secretary for the
to	purpose of enabling the sharing of
ic	information between public sector
mental health services for the treatment
V	of persons with a mental disorder at any time; or";

Mental Health (Amendment) Act 2003

Act No. 76/2003

Part 3—Confidentiality and Other Amendments

s. 35

(c) in paragraph (eb), for "services by, on behalf of or at" substitute "services by or on behalf

ts	of".
n	(6) In section 120A(3B) of the Principal Act—
e	(a) in paragraph (a)—
m	(i) in sub-paragraph (i), for "an approved
u
c	mental health service" substitute "a
o	public sector mental health service";
D	(ii) in sub-paragraph (ii), for "at or by that
ry	approved mental health service"
ta	substitute "by that public sector mental
health service";
n
e	(b) after paragraph (a) insert—
m	"(ab) the use is by a person referred to in
ia	paragraph (a)(i) of information
rl	collected in accordance with
a	paragraph (a), being a use that is—
P

(i) necessary for the performance of

d	the person's duties or functions
n
a	with the public sector mental health service; and
n
o	(ii) in accordance with HPP2 of the
ti	Health Privacy Principles in the
la	Health Records Act 2001; or
is	(ac) the use is by the Secretary of
g	information collected in accordance
e	with sub-section (3)(e)(ii), being a use
L	that is—
n
a	(i) necessary for the performance of
ri	the duties, powers or functions of
to	the Secretary under this Act; and

ic	(ii)	in accordance with HPP2 of the
V	Health Privacy Principles in the Health Records Act 2001; or".

Mental Health (Amendment) Act 2003

Act No. 76/2003

Part 3—Confidentiality and Other Amendments

s. 36

36. New section 149 inserted

After section 148 of the Principal Act insert—

ts	"149. Transitional provisions—Mental Health
n	(Amendment) Act 2003
e
Clause 2(1)(a) of Schedule 3, as in force
m
u	immediately before the commencement of
c	section 37(3)(b) of the Mental Health
o	(Amendment) Act 2003, continues to apply
D	with respect to the person appointed as a member of the Psychosurgery Review Board
ry	under that clause until the expiry of that
ta	person's current term of membership.".
n	37. Membership and procedure of Boards
e

(1) In Schedule 1 to the Principal Act, for

m

clause 2(1)(b) substitute—

ia
rl

"(b) holds office for the term, not exceeding 5 years,

a	specified in his or her instrument of appointment;
P	and".
d	(2) In Schedule 2 to the Principal Act, for
n	clause 1(1A)(a)(ii) and (iii) substitute—
a	"(ii) a review under section 30(3) (periodic review); or
n	(iii) a review under section 30(4) of the extension of a
o
ti	community treatment order—".
la	(3) In the Principal Act—
is	(a) in clause 1(2)(a) of Schedule 2, for "barrister
g	and solicitor of the Supreme Court of not
e	less than eight years' standing" substitute
L	"person who has been admitted to legal
n	practice, whether in Victoria or elsewhere in
a
ri	Australia, for not less than 5 years";
to	(b) for clause 2(1)(a) of Schedule 3 substitute—
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Mental Health (Amendment) Act 2003

Act No. 76/2003

Part 3—Confidentiality and Other Amendments

s. 37

(c) for clause 4(1)(a) of Schedule 3 substitute—

"(a) holds office for the term, not exceeding 5 years,

ts	specified in his or her instrument of
appointment; and";
n
e	(d) clause 4(2) of Schedule 3 is repealed.
m	__________________
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Mental Health (Amendment) Act 2003

Act No. 76/2003

Part 4—Amendment of Coroners Act 1985

s. 38

PART 4—AMENDMENT OF CORONERS ACT 1985

ts 38. Reportable deaths under the Coroners Act 1985

n	In section 3(1) of the Coroners Act 1985, in the	See:
e	Act No.
definition of "reportable death", after paragraph (i)	10257.
m	insert—	Reprint No. 4
u	as at
23 October
c	"(iaa) of a person who immediately before death was a patient within the meaning of the	2002.
o	LawToday:
D

Mental Health Act 1986 but was not a dpc.vic.

ry person held in care; or". gov.au

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Mental Health (Amendment) Act 2003

Act No. 76/2003

Endnotes

ENDNOTES

ts †

Minister's second reading speech—

n	Legislative Assembly: 18 September 2003
e
Legislative Council: 14 October 2003
m
u	The long title for the Bill for this Act was "to amend the Mental Health
c	Act 1986 with respect to involuntary patients, confidentiality and other
o	matters, to amend the Coroners Act 1985 with respect to reportable
D	deaths and for other purposes."
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