Mental Health and Wellbeing Amendment Act 2023 (Vic)
Mental Health and Wellbeing Amendment Act 2023
No. 20 of 2023
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of the Mental Health and Wellbeing Act 2022
3Definitions
4Authorised psychiatrist must examine eligible patient (other than forensic patient) again in specified circumstances
5Authorised psychiatrist must review eligible patient's treatment in specified circumstances
6Application to Mental Health Tribunal for course of electroconvulsive treatment—person who is an adult and not a patient
7Application to Mental Health Tribunal for course of electroconvulsive treatment—young patient
8Application to Mental Health Tribunal for course of electroconvulsive treatment—young person who is not a patient
9Matters to be considered if authorising restrictive intervention
10Facilities and supplies to be provided to person subject to restrictive intervention
11Treatment order—hearing to determine community to inpatient variation
12Health led response principle
13Taking a person into care and control in a mental health crisis
14Transfer of care and control for the purposes of arranging an examination
15Accepting care and control of a person at a designated mental health service or place
16Information to be provided by an authorised person on taking person into care and control
17Functions of the Health Secretary
18Functions of the Chief Officer
19Establishment of regional mental health and wellbeing boards
20Delegation
21New sections 419A, 419B and 419C inserted
22Reports to the Parliament
23Decision whether or not to deal with complaint
24Notification of complaint resolution process
25Deferral of notification by the Mental Health and Wellbeing Commission
26New Division 6 of Part 9.2 inserted
27Mental Health and Wellbeing Commission may collect information
28Notification requirements for leave of absence
29New section 547A inserted
30Notification requirements for monitored leave
31New section 576A inserted
32Application to Mental Health Tribunal for intensive monitored supervision order
33Mental Health Tribunal powers in respect of applications under this Chapter
34Review of use of intensive monitored supervision
35Information to be given to transferring patient
36Other entities to be notified of making of transfer order
37Primary non-legal mental health advocacy service provider to be notified of transfer order
38Constitution of Institute Board
39Centre to enter into agreement with designated mental health service and academic institution
40Directors
41Strategic plan
42Functions of the Youth Mental Health and Wellbeing Board
43Declared operators
44Disclosure, collection and use of information principle
45Disclosure at key points of care
46Collection, use and disclosure of personal or health information with specified service providers
47Temporary treatment orders
48Treatment orders
49Consequential amendments
Part 3—Amendment of the Judicial Proceedings Reports Act 1958
50Restriction on publication of reports of judicial proceedings
51Prohibition of reporting of names
52Offence to contravene victim privacy order or interim victim privacy order
Part 4—Repeal of this Act
53Repeal of this Act
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Endnotes
1 General information
Mental Health and Wellbeing Amendment Act 2023
No. 20 of 2023
[Assented to 8 August 2023]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purposes
The purposes of this Act are—
(a)to make minor amendments to the Mental Health and Wellbeing Act 2022; and
(b)to make consequential amendments to the Judicial Proceedings Reports Act 1958.
2Commencement
(1)This Act (other than Part 3) comes into operation on the day after the day on which it receives the Royal Assent.
(2)Part 3 comes into operation on 1 September 2023.
PART 2—AMENDMENT OF THE MENTAL HEALTH AND WELLBEING ACT 2022
3Definitions
(1)In section 3(1) of the Mental Health and Wellbeing Act 2022, in the definition of designated mental health service, paragraph (g) is repealed.
(2)In section 3(1) of the Mental Health and Wellbeing Act 2022, for the definition of mental health and wellbeing service substitute—
"mental health and wellbeing service means—
(a)a service performed for the primary purpose of—
(i)improving or supporting a person's mental health and wellbeing; or
(ii)assessing, or providing treatment, care or support to, a person for mental illness or psychological distress; or
(iii)providing care or support to a person who is a family member, carer, or supporter, of a person with mental illness or psychological distress; or
(b)a service, or a service belonging to a class of service, that is prescribed to be a mental health and wellbeing service—
but does not include—
(c)a non-legal mental health advocacy service; or
(d)a service, or a service belonging to a class of service, that is prescribed not to be a mental health and wellbeing service;".
(3)In section 3(1) of the Mental Health and Wellbeing Act 2022, for the definition of mental health and wellbeing service provider substitute—
"mental health and wellbeing service provider means an entity (other than an individual) that—
(a)receives funding from—
(i)the State for the primary purpose of providing mental health and wellbeing services; or
(ii)another entity (other than an individual), being funding that—
(A)was received by the other entity from the State for the primary purpose of providing mental health and wellbeing services; and
(B)is provided to the entity for a purpose that is consistent with the funding arrangement or agreement between the State and the other entity; and
(b)employs or engages a mental health and wellbeing professional in connection with providing the mental health and wellbeing services—
but does not include—
(c)an entity, or an entity belonging to a class of entity, that is prescribed not to be a mental health and wellbeing service provider;".
(4)In section 3(1) of the Mental Health and Wellbeing Act 2022 insert the following definitions—
"parent, in relation to a person under the age of 18 years, includes the following—
(a)a person who has custody or daily care and control of the person;
(b)a person who has all of the duties, powers, responsibilities and authority (whether conferred by a court or otherwise) which by law parents have in relation to their children;
(c)any other person who has the legal right to make decisions about medical treatment of the person;
transfer order means—
(a)an interstate transfer order; or
(b)an interstate transfer of treatment order—
as the case may be;".
4Authorised psychiatrist must examine eligible patient (other than forensic patient) again in specified circumstances
(1)In section 73(3)(b) of the Mental Health and Wellbeing Act 2022, for "10 days" substitute "10 business days".
(2)In section 73(4) of the Mental Health and Wellbeing Act 2022, for "10 days" substitute "10 business days".
5Authorised psychiatrist must review eligible patient's treatment in specified circumstances
(1)In section 74(4)(b) of the Mental Health and Wellbeing Act 2022, for "10 days" substitute "10 business days".
(2)In section 74(5) of the Mental Health and Wellbeing Act 2022, for "10 days" substitute "10 business days".
6Application to Mental Health Tribunal for course of electroconvulsive treatment—person who is an adult and not a patient
For section 104(2)(a) of the Mental Health and Wellbeing Act 2022 substitute—
"(a)the person's views and preferences regarding electroconvulsive treatment, and any beneficial alternative treatment that is reasonably available, and the reasons for those views and preferences, including any recovery outcomes the person would like to achieve;".
7Application to Mental Health Tribunal for course of electroconvulsive treatment—young patient
For section 109(2)(a) of the Mental Health and Wellbeing Act 2022 substitute—
"(a)the young patient's views and preferences regarding electroconvulsive treatment, and any beneficial alternative treatment that is reasonably available, and the reasons for those views and preferences, including any recovery outcomes the young patient would like to achieve;".
8Application to Mental Health Tribunal for course of electroconvulsive treatment—young person who is not a patient
For section 114(2)(a) of the Mental Health and Wellbeing Act 2022 substitute—
"(a)the young person's views and preferences regarding electroconvulsive treatment, and any beneficial alternative treatment that is reasonably available, and the reasons for those views and preferences, including any recovery outcomes the young person would like to achieve;".
9Matters to be considered if authorising restrictive intervention
In section 131(1)(a) of the Mental Health and Wellbeing Act 2022 omit "relevant".
10Facilities and supplies to be provided to person subject to restrictive intervention
In section 136(2)(a) of the Mental Health and Wellbeing Act 2022 omit "relevant".
11Treatment order—hearing to determine community to inpatient variation
In section 204(3)(b)(ii) of the Mental Health and Wellbeing Act 2022, for "could" substitute "can".
12Health led response principle
In section 228(b) of the Mental Health and Wellbeing Act 2022, after "authorised health professional, is" insert "so far as is reasonably practicable in the circumstances".
13Taking a person into care and control in a mental health crisis
In section 232(1) of the Mental Health and Wellbeing Act 2022 omit ", a registered paramedic employed by an ambulance service as defined in section 3(1) of the Ambulance Services Act 1986".
14Transfer of care and control for the purposes of arranging an examination
In section 235(1) of the Mental Health and Wellbeing Act 2022, for "another authorised person" substitute "a police officer, a protective services officer or a member of a prescribed class of authorised health professional".
15Accepting care and control of a person at a designated mental health service or place
In section 244(1) of the Mental Health and Wellbeing Act 2022, for "243(a)" substitute "243".
16Information to be provided by an authorised person on taking person into care and control
In section 252(2) of the Mental Health and Wellbeing Act 2022, for "If" substitute "In addition, if".
17Functions of the Health Secretary
In section 254(t) of the Mental Health and Wellbeing Act 2022, for "and wellbeing" substitute "advocacy".
18Functions of the Chief Officer
In section 261(1)(s) of the Mental Health and Wellbeing Act 2022, for "and wellbeing" substitute "advocacy".
19Establishment of regional mental health and wellbeing boards
In section 305(2)(a) of the Mental Health and Wellbeing Act 2022, for "2023" substitute "2024".
20Delegation
(1)After section 417(a) of the Mental Health and Wellbeing Act 2022 insert—
"(ab)the Chief Executive Officer of the Mental Health and Wellbeing Commission employed under section 419;".
(2)For section 417(b) of the Mental Health and Wellbeing Act 2022 substitute—
"(b)an employee referred to in section 418(1) or a person engaged by the Commission under section 418(2);".
(3)After section 417(b) of the Mental Health and Wellbeing Act 2022 insert—
"(c)any staff of a Department or a public sector body in respect of whom the Mental Health and Wellbeing Commission has entered into an agreement under section 418(3).".
21New sections 419A, 419B and 419C inserted
After section 419 of the Mental Health and Wellbeing Act 2022 insert—
"419A Meetings of the Mental Health and Wellbeing Commission
(1)The Chair of the Mental Health and Wellbeing Commission may convene as many meetings of the Mental Health and Wellbeing Commission as the Chair considers necessary for the efficient conduct of the Commission's affairs.
(2)The Chair of the Mental Health and Wellbeing Commission must preside at a meeting of the Commission.
(3)The quorum for a meeting of the Commission is 3 Mental Health and Wellbeing Commissioners.
(4)A question arising at a meeting of the Mental Health and Wellbeing Commission (including a question related to setting the strategic direction of the Mental Health and Wellbeing Commission) is determined by a majority of votes of the Mental Health and Wellbeing Commissioners present and voting at the meeting.
(5)The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes on any question, a second or casting vote.
419BGeneral procedure
Subject to this Chapter, the Mental Health and Wellbeing Commission may regulate its own procedure.
419CValidity of acts or decisions
An act or a decision of the Mental Health and Wellbeing Commission is not invalid only because of—
(a)a vacancy in the office of Mental Health and Wellbeing Commissioner, including a vacancy arising from the failure to appoint a Mental Health and Wellbeing Commissioner; or
(b)a defect or irregularity in, or in connection with, the appointment of a Mental Health and Wellbeing Commissioner.".
22Reports to the Parliament
After section 428(5) of the Mental Health and Wellbeing Act 2022 insert—
"(6)A copy of a report that is given to the clerk of a House of the Parliament under subsection (4)(b) is taken to have been published by order, or under the authority, of that House.".
23Decision whether or not to deal with complaint
In section 446(2)(b) of the Mental Health and Wellbeing Act 2022, for "439(2)(b)" substitute "441(2)(b)".
24Notification of complaint resolution process
In section 452(1)(c) of the Mental Health and Wellbeing Act 2022—
(a)in subparagraph (iv), for "464" substitute "455";
(b)in subparagraph (v)—
(i)for "462(3)" substitute "462(4)";
(ii)for "464(1)" substitute "463(1)".
25Deferral of notification by the Mental Health and Wellbeing Commission
In section 470(4) of the Mental Health and Wellbeing Act 2022, in paragraph (a) in the definition of relevant action, for "497" substitute "496".
26New Division 6 of Part 9.2 inserted
After Division 5 of Part 9.2 of the Mental Health and Wellbeing Act 2022 insert—
"Division 6—Judicial Proceedings Reports Act 1958
474ADisclosure of information in the performance of functions not prevented by sections 3 and 4(1A) of Judicial Proceedings Reports Act 1958
Sections 3 and 4(1A) of the Judicial Proceedings Reports Act 1958 do not prevent the disclosure of information (including identifying information) by the Mental Health and Wellbeing Commission to the following in the performance of a function under this Part—
(a)the Health Complaints Commissioner within the meaning of the Health Complaints Act 2016;
(b)the Australian Health Practitioner Regulation Agency.
474BDisclosure of information in the performance of functions not prevented by orders under Part 3 of Judicial Proceedings Reports Act 1958
A victim privacy order or an interim victim privacy order made under Part 3 of the Judicial Proceedings Reports Act 1958 does not apply to or prevent a disclosure of information (including identifying information) by the Mental Health and Wellbeing Commission to the following in the performance of a function under this Part—
(a)the Health Complaints Commissioner within the meaning of the Health Complaints Act 2016;
(b)the Australian Health Practitioner Regulation Agency.".
27Mental Health and Wellbeing Commission may collect information
In section 525(1) of the Mental Health and Wellbeing Act 2022, for "415(1)(h)" substitute "415(h)".
28Notification requirements for leave of absence
(1)In section 547(2)(b)(vi) of the Mental Health and Wellbeing Act 2022, for "Secretary; and" substitute "Secretary.".
(2)Section 547(2)(c) of the Mental Health and Wellbeing Act 2022 is repealed.
29New section 547A inserted
After section 547 of the Mental Health and Wellbeing Act 2022 insert—
"547A Authorised psychiatrist may arrange for security patient who is absent without leave to be transported to a designated mental health service
An authorised psychiatrist may arrange for a security patient who is absent without leave from a designated mental health service to be transported to a designated mental health service.".
30Notification requirements for monitored leave
(1)In section 554(2)(b)(v) of the Mental Health and Wellbeing Act 2022, for "order; and" substitute "order.".
(2)Section 554(2)(c) of the Mental Health and Wellbeing Act 2022 is repealed.
31New section 576A inserted
After section 576 of the Mental Health and Wellbeing Act 2022 insert—
"576A Authorised psychiatrist may arrange for forensic patient who is absent without leave to be transported to a designated mental health service
An authorised psychiatrist may arrange for a forensic patient who is absent without leave from a designated mental health service to be transported to a designated mental health service.".
32Application to Mental Health Tribunal for intensive monitored supervision order
In section 581(3) of the Mental Health and Wellbeing Act 2022—
(a)omit "and hearing date";
(b)for "authorised psychiatrist is notified" substitute "application is made".
33Mental Health Tribunal powers in respect of applications under this Chapter
In section 582(2) of the Mental Health and Wellbeing Act 2022, for paragraphs (a) and (b) substitute—
"(a)grant the application and make an intensive monitored supervision order in respect of the patient; or
(b)refuse the application.".
34Review of use of intensive monitored supervision
In section 590(2)(c) of the Mental Health and Wellbeing Act 2022, after "advocate" insert "acting in accordance with any instructions given to the advocate by the patient".
35Information to be given to transferring patient
In section 603 of the Mental Health and Wellbeing Act 2022 omit "under this Part".
36Other entities to be notified of making of transfer order
In section 604 of the Mental Health and Wellbeing Act 2022 omit "under this Part".
37Primary non-legal mental health advocacy service provider to be notified of transfer order
Section 605 of the Mental Health and Wellbeing Act 2022 is repealed.
38Constitution of Institute Board
In section 618(c) of the Mental Health and Wellbeing Act 2022, for "7" substitute "8".
39Centre to enter into agreement with designated mental health service and academic institution
In section 646(1) of the Mental Health and Wellbeing Act 2022, for "another" substitute "a".
40Directors
(1)In section 659(1)(a)(ii) of the Mental Health and Wellbeing Act 2022, for "as a practitioner" substitute "in the field of mental health".
(2)Section 659(4) of the Mental Health and Wellbeing Act 2022 is repealed.
41Strategic plan
In section 667(3) of the Mental Health and Wellbeing Act 2022, for "Minster" substitute "Minister".
42Functions of the Youth Mental Health and Wellbeing Board
(1)Section 681(a)(iv) of the Mental Health and Wellbeing Act 2022 is repealed.
(2)After section 681(a) of the Mental Health and Wellbeing Act 2022 insert—
"(ab)to advise on education of the youth mental health and wellbeing workforce through practice improvement, training and professional development programs; and".
43Declared operators
In section 704(2)(a) of the Mental Health and Wellbeing Act 2022, for "(b), (c), (d), (e) or (f)" substitute "(a), (b), (c), (d) or (e)".
44Disclosure, collection and use of information principle
In the note at the foot of section 722 of the Mental Health and Wellbeing Act 2022, after "family violence" insert "or other serious harm".
45Disclosure at key points of care
In section 731(1) of the Mental Health and Wellbeing Act 2022, after "mental health" insert "and".
46Collection, use and disclosure of personal or health information with specified service providers
(1)In the heading to section 733 of the Mental Health and Wellbeing Act 2022 omit "with specified service providers".
(2)In section 733(1) and (2) of the Mental Health and Wellbeing Act 2022, for "collect, use and disclose" substitute "collect and use and disclose".
(3)In section 733(1), (2) and (4) of the Mental Health and Wellbeing Act 2022, for "with" substitute "to".
47Temporary treatment orders
In section 781 of the Mental Health and Wellbeing Act 2022, after "in force" insert "for the period specified in the Order".
48Treatment orders
(1)In section 782 of the Mental Health and Wellbeing Act 2022, after "in force" insert "for the period specified in the Order".
(2)At the end of section 782 of the Mental Health and Wellbeing Act 2022 insert—
"(2)Despite subsection (1), if the period specified in the Treatment Order is more than 6 months, the Mental Health Tribunal—
(a)in confirming the treatment order under section 204, must reduce the period as the Tribunal considers appropriate so that it is not more than 6 months; or
(b)in confirming the treatment order and determining that the order is an inpatient order under section 207, must reduce the period as the Tribunal considers appropriate so that it is not more than 6 months.".
49Consequential amendments
(1)In section 786 of the Mental Health and Wellbeing Act 2022, for "Wellbeing Commissioner" substitute "Wellbeing Commission".
(2)In section 798 of the Mental Health and Wellbeing Act 2022, for "Wellbeing Commissioner" substitute "Wellbeing Commission".
(3)In section 803 of the Mental Health and Wellbeing Act 2022, for "Wellbeing Commissioner appointed under section 420" substitute "Wellbeing Commission established by section 411".
(4)In section 804 of the Mental Health and Wellbeing Act 2022, for "Wellbeing Commissioner appointed under section 420" substitute "Wellbeing Commission established by section 411".
(5)In section 810 of the Mental Health and Wellbeing Act 2022, for "Wellbeing Commissioner appointed under section 420" substitute "Wellbeing Commission established by section 411".
(6)In section 818 of the Mental Health and Wellbeing Act 2022, for "the Mental Health and Wellbeing Act 2022" substitute "section 221, Part 5.3 and sections 547A and 576A of the Mental Health and Wellbeing Act 2022".
(7)In section 821(1) of the Mental Health and Wellbeing Act 2022—
(a)in the proposed definition of Mental Health and Wellbeing Commissioner in section 3(1) of the Disability Act 2006, for "Commissioner" substitute "Commission";
(b)for "Wellbeing Commissioner appointed under section 420" substitute "Wellbeing Commission established by section 411".
(8)In section 821(2) of the Mental Health and Wellbeing Act 2022, for "Wellbeing Commissioner" substitute "Wellbeing Commission".
(9)In section 822(1)(a) of the Mental Health and Wellbeing Act 2022, for "Wellbeing Commissioner appointed under section 420" substitute "Wellbeing Commission established by section 411".
(10)In section 822(1)(b) of the Mental Health and Wellbeing Act 2022, in the proposed definition of Mental Health and Wellbeing Commissioner in section 3(1) of the Disability Safeguards Act 2018, for "Commissioner" substitute "Commission".
(11)In section 822(2) of the Mental Health and Wellbeing Act 2022, for "Wellbeing Commissioner" substitute "Wellbeing Commission".
(12)In section 822(3) of the Mental Health and Wellbeing Act 2022, for "Wellbeing Commissioner" substitute "Wellbeing Commission".
(13)In section 831 of the Mental Health and Wellbeing Act 2022, in proposed section 32(2A) of the Health Records Act 2001, for "services" substitute "service".
(14)In section 866 of the Mental Health and Wellbeing Act 2022, in proposed section 200(1)(g)(iii) of the Serious Offenders Act 2018, for "Commissioner appointed under section 420" substitute "Commission established by section 411".
(15)In section 867 of the Mental Health and Wellbeing Act 2022, in proposed section 224(4)(b)(xiii) of the Serious Offenders Act 2018, for "Commissioner appointed under section 420" substitute "Commission established by section 411".
PART 3—AMENDMENT OF THE JUDICIAL PROCEEDINGS REPORTS ACT 1958
50Restriction on publication of reports of judicial proceedings
At the foot of section 3 of the Judicial Proceedings Reports Act 1958 insert—
"Note
Other Acts may provide that this section does not prevent certain disclosures of information. For example, see Division 6 of Part 9.2 of the Mental Health and Wellbeing Act 2022.".
51Prohibition of reporting of names
At the foot of section 4(1A) of the Judicial Proceedings Reports Act 1958 insert—
"Note
Other Acts may provide that this subsection does not prevent certain disclosures of information. For example, see Division 6 of Part 9.2 of the Mental Health and Wellbeing Act 2022.".
52Offence to contravene victim privacy order or interim victim privacy order
At the foot of section 4Q of the Judicial Proceedings Reports Act 1958 insert—
"Note
Other Acts may provide that this section does not prevent certain disclosures of information. For example, see Division 6 of Part 9.2 of the Mental Health and Wellbeing Act 2022.".
PART 4—REPEAL OF THIS ACT
53Repeal of this Act
This Act is repealed on 1 September 2024.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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ENDNOTES
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 31 May 2023
Legislative Council: 22 June 2023
The long title for the Bill for this Act was "A Bill for an Act to make minor amendments to the Mental Health and Wellbeing Act 2022, to make consequential amendments to the Judicial Proceedings Reports Act 1958 and for other purposes."
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