Mental Health Regulations 1995 (SA)

South Australia

Mental Health Regulations 1995

under the Mental Health Act 1993

Part 1—Preliminary

1—Short title

These regulations may be cited as the Mental Health Regulations 1995.

3—Revocation

The Mental Health Regulations 1979 (see Gazette 13.9.1979 p714), as varied, are revoked.

4—Interpretation

In these regulations, unless the contrary intention appears—

the Act means the Mental Health Act 1993;

director, in relation to an approved treatment centre, means the person for the time being in charge of the treatment centre or a person duly authorised to admit patients to the treatment centre.

Part 2—Forms

5—Forms for the purposes of section 12 (detention)

1. (1)

   Subject to subregulation (2), the following forms must be used in the exercise of powers under section 12 of the Act:

   1. (a)

      making an order under section 12(1) for the initial detention of a voluntary patient, or the admission and initial detention of any other person—Form 1 of the Schedule;

   2. (b)

      confirming or revoking under section 12(4) an initial detention order—Form 2 of the Schedule;

   3. (c)

      making an order under section 12(5) for the further detention of a patient—Form 3 of the Schedule;

   4. (d)

      making an order under section 12(6) for the further detention of a patient—Form 4 of the Schedule;

   5. (e)

      revoking under section 12(8) any detention order made under section 12(5) or (6)—Form 5 of the Schedule.

2. (2)

   The forms prescribed for the purposes of section 14 of the Mental Health Act 1977 by the regulations revoked under regulation 3 may continue to be used during the period of 2 months from the commencement of these regulations.

6—Form for the purposes of section 14 (transfer of patient prior to admission)

If a patient is to be transferred to another approved treatment centre pursuant to section 14(2) of the Act, the instrument of transfer must be in the form of Form 6 of the Schedule.

7—Form for the purposes of section 15 (statement of legal rights)

For the purposes of section 15(1) of the Act, the statement of legal rights to be given to a patient on the commencement of his or her detention in an approved treatment centre must be in the form of Form 7 of the Schedule.

8—Form for the purposes of section 16 (transfer of patients)

In any exercise of powers under section 16 of the Act relating to the transfer of a patient from one approved treatment centre to another, the psychiatrist's certificate and instrument of transfer must be in the form of Form 8 of the Schedule.

9—Leave of absence from centre (section 17)

1. (1)

   In any exercise of powers under section 17 of the Act, the following forms must be used:

   1. (a)

      granting a patient leave of absence from an approved treatment centre—Form 9 of the Schedule;

   2. (b)

      cancelling any leave of absence—Form 10 of the Schedule.

2. (2)

   If the director of an approved treatment centre has cancelled a patient's leave of absence from the centre, the director must, unless of the opinion that it is not appropriate or practicable to do so, cause all reasonable steps to be taken to have a copy of the notice of cancellation served personally on the patient, before any action is taken to apprehend the patient.

10—Forms for the purposes of section 22 (consent to prescribed psychiatric treatment)

1. (1)

   In authorising and giving consent under section 22(1) to the administration of prescribed psychiatric treatment, the following forms must be used:

   1. (a)

      for category A treatment (psychosurgery)—Form 11 of the Schedule;

   2. (b)

      for category B treatment (electro convulsive therapy)—

      1. (i)

         where the patient is capable of giving effective consent—Form 12 of the Schedule;

      2. (ii)

         where the patient is incapable of giving effective consent and is under 16 years of age—Form 13 of the Schedule;

      3. (iii)

         where the patient is incapable of giving effective consent and is 16 years of age or over—Form 14 of the Schedule.

2. (2)

   A patient, parent or guardian who signs a consent form contained in Form 12 or 13 must do so in the presence of a witness.

3. (3)

   A doctor or psychiatrist who has authorised the giving of prescribed psychiatric treatment to a patient cannot act as witness to the signing of the consent form by the patient or his or her parent or guardian.

11—Transport of patients

1. (1)

   If a request is made by a medical practitioner or the director of an approved treatment centre for the exercise of powers of apprehension or conveyance under the Act by a police officer or an ambulance officer, the request must be in the form of Form 15 of the Schedule.

2. (2)

   If a request is made to an ambulance service by the director of an approved treatment centre for the transport of a detained patient to another treatment centre, the request must be in the form of Form 15 of the Schedule.

3. (3)

   An ambulance service may recover from the Minister the reasonable costs of the exercise of powers under the Act by any of the service's officers or for the transport of a detained patient from one approved treatment centre to another.

Part 3—Fees

12—Medical practitioner's right to recover fees

If, pursuant to section 23(1) of the Act, a person is taken by a police officer to a medical practitioner for examination (not being a medical practitioner employed by an approved treatment centre), the medical practitioner may recover from the Minister the reasonable costs of the examination.

13—Prescribed scale of legal practitioner fees (section 27)

For the purposes of section 27(3) of the Act, the prescribed scale for the fees that may be charged by a legal practitioner who represents an appellant before the Board pursuant to the scheme established by the Minister under that section is as follows:

 

1	For all preparatory work done prior to the commencement of the hearing of the appeal (including attending adjournments of the hearing date)—
(a) if the appeal is certified by the Board as complex	$325.60
(b) in any other case	$245.30
2	For attending the hearing of the appeal, per hour or part of an hour—
(a) if the appeal is certified by the Board as complex	$107.80
(b) in any other case	$80.30

Part 4—Arrangements between South Australia and other jurisdictions

Division 1—Preliminary

14—Interpretation

In this Part—

corresponding law means—

1. (a)

   the Mental Health and Related Services Act of the Northern Territory; or

2. (b)

   the Mental Health Act 2007 of New South Wales; or

3. (c)

   the Mental Health Act 1986 of Victoria;

interstate authorised officer means a person on whom power is conferred under a corresponding law to take a person who has a mental illness into his or her care and control;

interstate detention and treatment order means an order made under a corresponding law for the purpose of bringing about the detention and treatment in an interstate treatment centre of a person who has a mental illness;

interstate officer means a person on whom any power is conferred under a corresponding law;

interstate patient at large means a person to whom an interstate detention and treatment order applies who is absent from an interstate treatment centre in which he or she was being detained, or is otherwise at large, without lawful authority under the relevant corresponding law;

interstate treatment centre means a hospital or other facility in which a person may be detained and treated under an interstate detention and treatment order;

Ministerial agreement means—

1. (a)

   the agreement entered into on 6 June 2008 between the Northern Territory Minister responsible for the administration of the Mental Health and Related Services Act of the Northern Territory and the South Australian Minister responsible for the administration of the Mental Health Act 1993 of South Australia, providing for the administration of Part 18 of the Northern Territory Act and these regulations; or

2. (b)

   the agreement entered into on 18 March 2009 between the Minister for Health for the State of New South Wales and the Minister for Mental Health and Substance Abuse for the State of South Australia providing for the administration of Chapter 8 of the New South Wales Act and these regulations; or

3. (c)

   the agreement entered into on 16 April 2009 between the Minister for Mental Health for the State of Victoria and the Minister for Mental Health and Substance Abuse for the State of South Australia providing for the administration of Part 5A of the Mental Health Act 1986 of Victoria and these regulations;

patient at large—a patient is at large if a South Australian detention and treatment order applies to the patient but—

1. (a)

   the patient has not been taken into, or remained in, the care and control of treatment centre staff or an authorised officer or police officer after the making of the order and before admission to a treatment centre; or

2. (b)

   the patient has left a treatment centre in which he or she was being detained, or the care and control of treatment centre staff, without leave of absence under section 17 of the Act; or

3. (c)

   the patient has been granted leave of absence from a treatment centre under section 17 of the Act, but has not returned to the centre or been taken into the care and control of treatment centre staff or an authorised officer or police officer by the expiry of the leave or after cancellation of the leave;

patient transport request means a document for the transport of a patient in a form that complies with the requirements of the relevant Ministerial agreement;

South Australian authorised officer means—

1. (a)

   an ambulance officer; or

2. (b)

   the director of an approved treatment centre or an employee in an approved treatment centre authorised by the director of the centre to take a person who is unlawfully at large from the centre into his or her care and control; or

3. (c)

   a police officer;

South Australian detention and treatment order means an order for detention under Part 3 Division 2 of the Act;

South Australian officer means a person on whom any power is conferred under these regulations;

South Australian treatment centre means an approved treatment centre.

15—Requests or approvals relating to actions involving other jurisdictions

1. (1)

   If a provision of this Part provides that this subregulation applies to the taking of specified action, the action may only be taken if—

   1. (a)

      such action is contemplated by a Ministerial agreement with a Minister of the other State or the Territory that would be affected by the action; and

   2. (b)

      the action has been requested or approved by an interstate officer under the corresponding law of the State or Territory, or the Ministerial agreement.

2. (2)

   The Chief Advisor in Psychiatry may request or approve action by an interstate officer under the corresponding law of another State or a Territory that would affect South Australia if—

   1. (a)

      there is a Ministerial agreement with a Minister of the State or Territory that contemplates such action; and

   2. (b)

      the action may be taken under the corresponding law or the Ministerial agreement at the request or with the approval of a South Australian officer.

16—Powers of South Australian officers under corresponding laws or Ministerial agreement

Subject to these regulations, a South Australian officer may exercise any power conferred on the officer under a corresponding law or under a Ministerial agreement.

Division 2—Transfer to or from South Australian treatment centres

17—Transfer from South Australian treatment centres

1. (1)

   The director of a South Australian treatment centre may give a direction for the transfer to an interstate treatment centre of a patient who is detained in or a patient at large from the South Australian treatment centre if the director is satisfied that the transfer is in the patient's best interests.

2. (2)

   Regulation 15(1) applies to the giving of a direction under this regulation.

3. (3)

   A direction under this regulation must be given by writing in the form approved by the Minister.

4. (4)

   The director must—

   1. (a)

      if there is a relative of the patient whose whereabouts is known to or readily ascertainable by the director, notify that relative of the transfer of the patient to the interstate treatment centre, unless he or she is of the opinion that it would not be in the best interests of the patient to do so; and

   2. (b)

      if the patient is detained in the South Australian treatment centre under an order under section 13 of the Act—notify the Board of the transfer.

18—Transfer to South Australian treatment centres

1. (1)

   The director of a South Australian treatment centre may approve the transfer to the centre of a person to whom an interstate detention and treatment order applies (including an interstate patient at large) if the director of the South Australian treatment centre is satisfied that the transfer is in the person's best interests.

2. (2)

   An approval under this regulation must be given by writing in the form approved by the Minister.

3. (3)

   If an approval is given under this regulation for the transfer of a person to a South Australian treatment centre, the Act applies as if an order for detention of the person had been made under section 12(1) of the Act at the time of admission of the person to the South Australian treatment centre.

19—Patient transport requests

1. (1)

   If the director of a South Australian treatment centre has given a direction for the transfer of a person to an interstate treatment centre under this Division, the director may issue a patient transport request for the purpose of the person's transport to the interstate treatment centre.

2. (2)

   If the director of a South Australian treatment centre has given an approval for the transfer of a person to the centre under this Division, the director may issue a patient transport request for the purpose of the person's transport to the centre.

20—Powers when patient transport request issued

If a South Australian authorised officer or interstate authorised officer believes on reasonable grounds that a person is the person in respect of whom a patient transport request has been issued under this Division, the officer may transport, or take the person into his or her care and control and transport, the person to an interstate treatment centre or South Australian treatment centre, as the case requires, using such force as is reasonably necessary for the purpose.

Division 3—Transport to other jurisdictions

21—Transport to other jurisdictions when South Australian detention and treatment orders apply

1. (1)

   If a South Australian detention and treatment order has been made in respect of a person, the person making the order or a South Australian authorised officer may, instead of transporting the person to a South Australian treatment centre for admission to that centre—

   1. (a)

      transport the person to an interstate treatment centre; or

   2. (b)

      deliver the person into the care and control of an interstate authorised officer (whether in or outside South Australia) for the purpose of the person's transport to an interstate treatment centre.

2. (2)

   Regulation 15(1) applies to the taking of action under subregulation (1).

3. (3)

   A South Australian authorised officer or interstate authorised officer may transport, or take the person into his or her care and control and transport, the person to an interstate treatment centre, using such force as is reasonably necessary for the purpose.

22—Transport to other jurisdictions of persons with apparent mental illness

1. (1)

   This regulation applies if a South Australian authorised officer has taken into his or her care and control a person and the officer has reasonable cause to believe that the person has a mental illness and that the conduct of that person is or has recently been such as to cause danger to himself or herself or to others.

2. (2)

   The South Australian authorised officer may, instead of transporting the person to a medical practitioner in South Australia for medical examination—

   1. (a)

      transport the person to an interstate treatment centre or an interstate medical practitioner or interstate authorised health professional; or

   2. (b)

      deliver the person into the care and control of an interstate authorised officer (whether in or outside South Australia) for the purpose of the person's transport to an interstate treatment centre or an interstate medical practitioner or interstate authorised health professional.

3. (3)

   Regulation 15(1) applies to the taking of action under subregulation (2).

4. (4)

   A South Australian authorised officer or interstate authorised officer may transport, or take the person into his or her care and control and transport, the person to an interstate treatment centre or an interstate medical practitioner or interstate authorised health professional, using such force as is reasonably necessary for the purpose.

5. (5)

   In this regulation—

interstate authorised health professional means a person, other than a medical practitioner, on whom power is conferred under a corresponding law to make an interstate detention and treatment order in respect of a person who has a mental illness.

23—Transport to other jurisdictions when interstate detention and treatment orders apply

1. (1)

   If a South Australian authorised officer believes on reasonable grounds that a person in South Australia is an interstate patient at large, 1 or more of the following powers may be exercised in relation to the person:

   1. (a)

      the person may be taken into the care and control of a South Australian authorised officer;

   2. (b)

      the person may be transported to an interstate treatment centre by a South Australian authorised officer;

   3. (c)

      the person may be delivered by a South Australian authorised officer into the care and control of an interstate authorised officer (whether in or outside South Australia) for the purpose of the person's transport to an interstate treatment centre;

   4. (d)

      the person may be taken to a South Australian treatment centre by a South Australian authorised officer and detained there pending the person's transport to an interstate treatment centre;

   5. (e)

      the person may be given treatment for his or her mental illness or any other illness in South Australia, without any requirement for the person's consent, as authorised by a medical practitioner who has examined the patient.

2. (2)

   Regulation 15(1) applies to the taking of action under subregulation (1)(b) or (c).

3. (3)

   Subregulation (1)(e) does not apply to prescribed psychiatric treatment, or to prescribed treatment within the meaning of the Guardianship and Administration Act 1993.

4. (4)

   If an interstate authorised officer believes on reasonable grounds that a person in South Australia is an interstate patient at large, the officer may transport the person to an interstate treatment centre.

5. (5)

   A South Australian authorised officer or interstate authorised officer may—

   1. (a)

      transport, or take the person into his or her care and control and transport, the person to a South Australian treatment centre or interstate treatment centre; and

   2. (b)

      if requested, render such assistance as may be necessary to enable or facilitate medical treatment of the person,

using such force as is reasonably necessary for the purpose.

1. (6)

   This regulation does not prevent action being taken under Division 2 for the transport of the person to a South Australian treatment centre if the director of the South Australian treatment centre has given an approval under that Division for the transfer of the person to the South Australian treatment centre.

Division 4—Transport to South Australia

24—Transport to South Australia when South Australian detention and treatment orders apply

1. (1)

   If a South Australian authorised officer believes on reasonable grounds that a person in the care and control of an interstate officer outside South Australia is a South Australian patient at large, the officer may transport the person to a South Australian treatment centre.

2. (2)

   Regulation 15(1) applies to the taking of action under subregulation (1).

3. (3)

   If an interstate authorised officer believes on reasonable grounds that a person in the care and control of an interstate officer outside South Australia is a South Australian patient at large, the officer may—

   1. (a)

      transport the person to a South Australian treatment centre; or

   2. (b)

      deliver the person into the care and control of a South Australian authorised officer for the purpose of the person's transport to a South Australian treatment centre.

1. (4)

   A South Australian authorised officer or interstate authorised officer may transport, or take the person into his or her care and control and transport, the person to a South Australian treatment centre, using such force as is reasonably necessary for the purpose.

2. (5)

   This regulation does not prevent action being taken under Division 2 for the transport of the person to an interstate treatment centre if the director of the South Australian treatment centre has given a direction under that Division for the transfer of the person to the interstate treatment centre.

25—Transport to South Australia of person with apparent mental illness

1. (1)

   This regulation applies if—

   1. (a)

      a person has been taken into the care and control of an interstate officer under a corresponding law because of the person's apparent mental illness; and

   2. (b)

      instead of action being taken for medical examination of the person under the corresponding law, the person is to be—

      1. (i)

         transported for medical examination to a medical practitioner in South Australia; or

      2. (ii)

         delivered into the care and control of a South Australian authorised officer (whether in or outside South Australia) for the purpose of the person's transport to a medical practitioner in South Australia.

2. (2)

   A South Australian authorised officer or interstate authorised officer may transport, or take the person into his or her care and control and transport, the person to a medical practitioner in South Australia, using such force as is reasonably necessary for the purpose.

Part 5—Miscellaneous

26—Register of patients

1. (1)

   Pursuant to section 9(2)(e) of the Act, the records relating to a patient admitted into an approved treatment centre must set out—

   1. (a)

      the date of the patient's admission; and

   2. (b)

      if the patient was admitted under an order under section 12 of the Act or an interstate detention and treatment order—details of the order; and

   3. (c)

      if the patient was transferred from another approved treatment centre or an interstate treatment centre—the name and address of that centre; and

   4. (d)

      if the patient is discharged—the date of discharge; and

   5. (e)

      if the patient is transferred to another approved treatment centre or an interstate treatment centre—the name and address of that centre and the date of transfer.

2. (2)

   In this regulation—

interstate detention and treatment order and interstate treatment centre have the same meanings as in Part 4.

27—Confidentiality

1. (1)

   If a person is transferred or delivered into the care and control of another under these regulations, personal information relating to the person may be divulged as necessary for the purposes of the transfer or delivery.

2. (2)

   If the Minister has reasonable cause to believe that a person the subject of an order for detention under Part 3 Division 2 of the Act or an order for treatment under Part 4 of the Act has left the State and has, without reasonable excuse, refused or failed to comply with the order, the Minister may divulge personal information relating to the person to a person administering a law of another State or a Territory of the Commonwealth relating to mental health.

28—Use of patient records and orders

The Board, a psychiatrist or any other person may, in taking action under the Act or these regulations in respect of a person transferred or delivered into care and control under these regulations, take into account records and orders made in respect of the person under a law of another State or a Territory of the Commonwealth relating to mental health.

Schedule—Forms

Legislative history

Notes

• •

  Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.

• •

  Earlier versions of these regulations (historical versions) are listed at the end of the legislative history.

• •

  For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or of regulations

  The Mental Health Regulations 1995 were revoked by Sch 2 of the Mental Health Regulations 2010 on 1.7.2010.

  Principal regulations and variations

  Year	No	Reference	Commencement
  1995	15	Gazette 2.3.1995 p763	6.3.1995: r 2
  2000	163	Gazette 6.7.2000 p35	6.7.2000: r 2
  2000	265	Gazette 23.11.2000 p3311	23.11.2000: r 2
  2003	147	Gazette 12.6.2003 p2500	12.6.2003: r 2
  2008	244	Gazette 4.9.2008 p4233	5.9.2008: r 2
  2009	30	Gazette 9.4.2009 p1351	9.4.2009: r 2
  2009	71	Gazette 4.6.2009 p2371	4.6.2009: r 2

  Provisions varied

  Entries that relate to provisions that have been deleted appear in italics.

  Provision	How varied	Commencement
  Pt 1
  heading	inserted by 244/2008 r 4(a)	5.9.2008
  r 2	omitted under Legislation Revision and Publication Act 2002	5.9.2008
  Pt 2
  heading	inserted by 244/2008 r 4(b)	5.9.2008
  r 11
  r 11(1)	varied by 244/2008 r 5(1)	5.9.2008
  r 11(3)	varied by 163/2000 r 3	6.7.2000
  varied by 244/2008 r 5(2)	5.9.2008
  Pt 3
  heading	inserted by 244/2008 r 4(c)	5.9.2008
  r 12	varied by 163/2000 r 4	6.7.2000
  varied by 244/2008 r 6(1), (2)	5.9.2008
  r 13	varied by 265/2000 r 3	23.11.2000
  Pt 4	inserted by 244/2008 r 7	5.9.2008
  heading varied by 30/2009 r 4	9.4.2009
  Pt 4 Div 1
  r 14
  corresponding law	substituted by 30/2009 r 5(1)	9.4.2009
  varied by 71/2009 r 4(1)	4.6.2009
  interstate authorised officer	varied by 30/2009 r 5(2)	9.4.2009
  interstate detention and treatment order	varied by 30/2009 r 5(3)	9.4.2009
  interstate officer	varied by 30/2009 r 5(4)	9.4.2009
  interstate patient at large	varied by 30/2009 r 5(5)	9.4.2009
  Ministerial agreement	substituted by 30/2009 r 5(6)	9.4.2009
  varied by 71/2009 r 4(2)	4.6.2009
  patient transport request	varied by 30/2009 r 5(7)	9.4.2009
  r 15	substituted by 30/2009 r 6	9.4.2009
  r 16	varied by 30/2009 r 7	9.4.2009
  Pt 4 Div 3	heading varied by 30/2009 r 8	9.4.2009
  r 22
  r 22(5)
  interstate authorised health professional	varied by 30/2009 r 9	9.4.2009
  Pt 4 Div 4
  r 25
  r 25(1)	varied by 30/2009 r 10	9.4.2009
  Pt 5	inserted by 244/2008 r 7	5.9.2008
  Sch	heading substituted by 147/2003 Sch 1	12.6.2003

  Historical versions

  12.6.2003

  5.9.2008

  9.4.2009