Mental Health (Treatment and Care) Amendment Act 2014 (ACT)
Mental Health (Treatment and Care) Amendment Act 2014
A2014-51
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Legislation amended 2
4 Long title 2
5 Part 1 heading 3
6 Section 1 3
7Offences against Act—application of Criminal Code etc
Section 4A, note 1 38 Section 4A, note 1 3
9 Section 4A, note 1 3
10 Section 4A, note 1 3
11 Sections 5, 6 and parts 2 and 4 4
12 Part 5 heading and sections 37 to 41 79
13 Notification of Magistrates Court about emergency detention or release from emergency detentionSection 41A 86
14 Section 41A 86
15 New section 41A (2) 87
16 Section 42 87
17 Medical examinationSection 43 89
18 Treatment during detentionSection 44 (1) 89
19 Section 44 (1), note 89
20 Section 44 (as amended) 89
21 Section 45 heading 89
22 Section 45 90
23 Section 45 90
24 Section 45 90
25 Orders for releaseSection 46 (1) 90
26 Section 46 (2) 91
27 Approved facilitiesSection 48 91
28 Divisions 5A.1 to 5A.5 91
29 Section 48A heading 91
30 Section 48A 91
31 Section 48B heading 92
32 Section 48B 92
33 Authority to enter into agreementsSection 48C 92
34 Recognition of interstate laws and ordersSection 48D 92
35 Transfer of custodial patients from ACTSection 48G (1) (b) (i) and (ii) 93
36 New section 48G (4) 93
37 Psychiatric treatment orders relating to interstate peopleSection 48M (1) 94
38 Section 48M (2) 94
39 Apprehension of interstate persons absent without leave or in breach of ordersSection 48Q (3) 94
40 Regulations relating to apprehension of personsSection 48R 94
41 Sections 48A to 48R (as amended) 95
42 Interstate application of mental health lawsPart 5A (as amended) 95
43 New chapters 7 and 8 95
44 Rights of mentally dysfunctional or mentally ill personsPart 6 156
45 Informed consentSection 54 156
46 Section 62 157
47 Consent of Supreme CourtSection 65 (b) 158
48 Refusal of surgerySection 66 (3) 159
49 CommitteesNew section 67 (6) 159
50 Electroconvulsive therapy and psychiatric surgeryPart 7 159
51 Divisions 7.1 to 7.3 159
52 Subdivisions 7.2.1 to 7.2.6 159
53 Part 8 heading 160
54 Review of certain people found unfit to pleadSection 68 (8) 160
55 Recommendations about people with mental illness or mental dysfunctionSection 70A 160
56 Sections 72 to 74 160
57 Part 9 heading 163
58 Section 76 heading 163
59 Section 76 163
60 Sections 77 to 79 163
61 AppearanceSection 80 (1) (b) to (d) 169
62 Section 80 (1) (g) 169
63 Section 81 170
64 Directions to registrarSection 84 (2) 170
65 Section 84 (as amended) 171
66 Notice of hearingSection 85 171
67 Section 86 171
68 Who is given a copy of the order?Section 87 (1) (c) 171
69 Section 87 (1) (g) 172
70 Section 87 (1) (i) 172
71 New section 87 (1) (k) 172
72 New section 87 (2) (ba) 172
73 New section 87 (3) (c) 172
74 Part 10 heading 173
75 FunctionsSection 113 173
76 New section 113 (c) 173
77 New section 114 173
78 Section 116 174
79 Delegation by chief psychiatristNew section 118 (2) 174
80 Mental health officersSection 119 (3), new definitions 175
81 Chief psychiatrist’s annual reportSection 120 (b) 175
82 Care coordinatorPart 10A 175
83 Sections 120B and 120C 175
84 Delegation by care coordinatorSection 120D (2) 177
85 Care coordinator’s annual reportSection 120E 177
86 Official visitorsPart 11 177
87 Meaning of official visitor etcSection 121 177
88 Section 121 178
89 Appointment of official visitors—additional suitability requirementSection 122 (d) 178
90 New section 122AA 178
91 Official visitor’s functionsSection 122A 178
92 Section 122A 179
93 New section 122A (d) 179
94 New section 122BB 179
95 Notice to official visitor of detainee receiving mental health treatment or care in correctional centreSection 122B 180
96 Section 122B 180
97 Complaint about treatment or care provided at a place other than visitable placeSection 122C 180
98 Section 122C 180
99 New parts 12.4 and 12.5 181
100 Part 12 heading 185
101 Section 123 185
102 Owner or manager to be licensedSection 124 186
103 Issue of licenceSection 125 (3) (a) 186
104 Section 125 (4) 186
105 Section 125 (5) (e) 186
106 Effect of cancellationSection 131 187
107 Appointment of inspectorsSection 132 187
108 Powers of inspectionSection 134 (1) (a) 187
109 Section 134 (1) (b) and (c) 187
110 Divisions 12.1 to 12.3 188
111 Section 136 heading 188
112 Section 136 188
113 Sections 136 to 137A 188
114 Notification and review of decisionsDivision 12.4 (as amended) 188
115 Unauthorised treatmentSection 138 188
116 Section 138 189
117 MiscellaneousDivision 12.5 (as amended) 189
118 New chapter 14 189
119 Section 140 191
120Relationship with Guardianship and Management of Property Act
Section 142 (1) (a) 196121 Section 142 (2) (a) 196
122 Section 142, new note 196
123 Relationship with Powers of Attorney ActSection 143 (a) 196
124 Section 143, new note 196
125 Certain rights unaffectedSection 145 (a) 197
126 New section 145A 197
127 MiscellaneousPart 13 (as amended) 198
128 Reviewable decisionsSchedule 1 heading, reference 198
129 Schedule 1, new items 1A to 1E 198
130 Dictionary, note 2 199
131 Dictionary, new definitions 199
132 Dictionary, definition of agreement 199
133 Dictionary, definitions of applicant and application 200
134 Dictionary, new definition of approved community care facility 200
135 Dictionary, definition of approved health facility 200
136 Dictionary, definitions of approved mental health facility and assessment order 200
137 Dictionary, new definitions 200
138 Dictionary, definition of community care facility 201
139 Dictionary, new definitions 201
140 Dictionary, definition of corresponding law 202
141 Dictionary, new definitions 202
142 Dictionary, definitions of information statement etc 202
143 Dictionary, new definition of mental disorder 203
144 Dictionary, definition of mental dysfunction 203
145 Dictionary, definitions of mental health facility, mental health professional and mental illness 203
146 Dictionary, new definition of nominated person 204
147 Dictionary, definition of offender with a mental impairment 204
148 Dictionary, definition of official visitor 204
149 Dictionary, new definitions 204
150 Dictionary, definition of private psychiatric institution 204
151 Dictionary, definition of proceeding 205
152 Dictionary, new definition of psychiatric facility 205
153 Dictionary, definition of psychiatric institution 205
154 Dictionary, new definitions 205
155 Dictionary, definitions of responsible person etc 206
156 Dictionary, new definitions 207
Schedule 1 Other amendments 208
Part 1.1 Children and Young People Act 2008 208
Part 1.2 Corrections Management Act 2007 209
Part 1.3 Crimes Act 1900 210
Part 1.4 Crimes (Child Sex Offenders) Regulation 2005 220
Part 1.5 Crimes (Sentence Administration) Act 2005 220
Part 1.6 Criminal Code 2002 221
Part 1.7 Guardianship and Management of Property Act 1991 221
Part 1.8 Mental Health (Treatment and Care) Regulation 2003 229
Part 1.9 Powers of Attorney Act 2006 230
Part 1.10 Public Advocate Act 2005 233
Part 1.11 Victims of Crime Act 1994 233
Mental Health (Treatment and Care) Amendment Act 2014
A2014-51
An Act to amend the Mental Health (Treatment and Care) Act 1994, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as follows:
Name of Act
This Act is the Mental Health (Treatment and Care) Amendment Act 2014.
Commencement
(1)This Act commences on a day fixed by the Minister by written notice.
Note 1The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
Note 2A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).
(2)If this Act has not commenced within 12 months beginning on its notification day, it automatically commences on the first day after that period.
(3)The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.
Legislation amended
This Act amends the Mental Health (Treatment and Care) Act 1994.
NoteThis Act also amends other legislation (see sch 1).
Long title
substitute
An Act to provide for the treatment, care or support, rehabilitation and protection of people with a mental disorder or mental illness and the promotion of mental health and wellbeing, and for other purposes
Part 1 heading
renumber as chapter 1
Section 1
substitute
Name of Act
This Act is the Mental Health (Treatment and Care) Act 1994.
Offences against Act—application of Criminal Code etc
Section 4A, note 1insert
· s 18 (Failure by owner of facility to comply with pt 3.1)
Section 4A, note 1
insert
· s 36ZM (Offence—limits on communication—mental health order)
· s 42 (Notification of certain people about detention)
Section 4A, note 1
omit
· s 45 (Communication during detention)
substitute
· s 45 (Offence—communication during detention)
Section 4A, note 1
insert
· s 48ZP (Offence—limits on communication—forensic mental health order)
Sections 5, 6 and parts 2 and 4
substitute
Chapter 2Objects and important concepts
Objects of Act
The objects of this Act are to—
(a)promote the recovery of people with a mental disorder or mental illness; and
(b)promote the capacity of people with a mental disorder or mental illness to determine, and participate in, their assessment and treatment, care or support, taking into account their rights in relation to mental health under territory law; and
(c)ensure that people with a mental disorder or mental illness receive assessment and treatment, care or support in a way that is least restrictive or intrusive to them; and
(d)facilitate access by people with a mental disorder or mental illness to services provided in a way that recognises and respects their rights, inherent dignity and needs; and
(e)promote the inclusion of, and participation by, people with a mental disorder or mental illness in communities of their choice; and
(f)facilitate access by people with a mental disorder or mental illness to assessment and treatment, care or support as far as practicable in communities of their choice; and
(g)support improvements in mental health through mental health promotion, illness prevention and early intervention.
Principles applying to Act
In exercising a function under this Act, the following principles must be taken into account:
(a)a person with a mental disorder or mental illness has the same rights and responsibilities as other members of the community and is to be supported to exercise those rights and responsibilities without discrimination;
(b)a person with a mental disorder or mental illness has the right to—
(i)consent to, refuse or stop treatment, care or support; and
(ii)be told about the consequences of consenting to, refusing or stopping treatment, care or support;
(c)a person with a mental disorder or mental illness has the right to determine the person’s own recovery;
(d)a person with a mental disorder or mental illness has the right to have the person’s will and preferences, to the extent that they are known or able to be known, taken into account in decisions made about treatment, care or support;
(e)a person with a mental disorder or mental illness has the right to access the best available treatment, care or support relating to the person’s individual needs;
(f)a person with a mental disorder or mental illness has the right to be able to access services that—
(i)are sensitive and responsive to the person’s individual needs, including in relation to age, gender, culture, language, religion, sexuality, trauma and other life experiences; and
(ii)observe, respect and promote the person’s rights, liberty, dignity, autonomy and self-respect;
(g)a person with a mental disorder or mental illness has the right to be given timely information, in a way that the person is most likely to understand, to allow the person to make decisions or maximise the person’s contribution to decision‑making about the person’s assessment and treatment, care or support;
(h)a person with a mental disorder or mental illness has the right to communicate, and be supported in communicating, in a way appropriate to the person;
Examples
1aided augmentative and alternative communication including teletypewriter services, communication boards and communication books
2unaided augmentative and alternative communication including sign language and facial expression
3use of an interpreter or translation service
4use of an independent advocacy service
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(i)a person with a mental disorder or mental illness has the right to be assumed to have decision-making capacity, unless it is established that the person does not have decision‑making capacity;
NoteFor principles of decision-making capacity, see s 8.
(j)services provided to a person with a mental disorder or mental illness should—
(i)respect the informed consent of the person to the person’s assessment and treatment, care or support including consent as expressed in an advance consent direction; and
(ii)support and allow the person to make the person’s own decisions; and
(iii)be provided in a way that considers and respects the preferences of the person, including those expressed in an advance agreement; and
(iv)promote a person’s capacity to determine the person’s recovery from mental disorder or mental illness; and
(v)seek to bring about the best therapeutic outcomes for the person and promote the person’s recovery; and
(vi)be therapeutic or diagnostic in nature for the benefit of the person, and never administered as punishment or for the benefit of someone other than the person; and
(vii)be delivered in a way that takes account of, and continues to build on, evidence of effective assessment and treatment, care or support; and
(viii)be provided in a way that ensures that the person is aware of the person’s rights; and
(ix)facilitate appropriate involvement of close relatives, close friends and carers in treatment, care or support decisions in partnership with medical professionals; and
(x)acknowledge the impact of mental disorder and mental illness on the close relatives, close friends and carers of people with a mental disorder or mental illness; and
(xi)recognise the experience and knowledge of close relatives, close friends and carers about a person’s mental disorder or mental illness; and
(xii)promote inclusive practices in treatment, care or support to engage families and carers in responding to a person’s mental disorder or mental illness; and
(xiii)promote a high standard of skill and training for the people providing treatment, care or support.
Meaning of decision-making capacity
For this Act, a person has capacity to make a decision in relation to the person’s treatment, care or support for a mental disorder or mental illness (decision-making capacity) if the person can, with assistance if needed—
(a)understand when a decision about treatment, care or support for the person needs to be made; and
(b)understand the facts that relate to the decision; and
(c)understand the main choices available to the person in relation to the decision; and
(d)weigh up the consequences of the main choices; and
(e)understand how the consequences affect the person; and
(f)on the basis of paragraphs (a) to (e), make the decision; and
(g)communicate the decision in whatever way the person can.
Principles of decision-making capacity
(1)In considering a person’s decision-making capacity under this Act, the following principles must be taken into account:
(a)a person’s decision-making capacity is particular to the decision that the person is to make;
(b)a person must be assumed to have decision-making capacity, unless it is established that the person does not have decision‑making capacity;
(c)a person who does not have decision-making capacity must always be supported to make decisions about the person’s treatment, care or support to the best of the person’s ability;
(d)a person must not be treated as not having decision‑making capacity unless all practicable steps to assist the person to make decisions have been taken;
(e)a person must not be treated as not having decision‑making capacity only because—
(i)the person makes an unwise decision; or
(ii)the person has impaired decision-making capacity under another Act, or in relation to another decision;
(f)a person must not be treated as having decision-making capacity to consent to the provision of treatment, care or support only because the person complies with the provision of the treatment, care or support;
(g)a person who moves between having and not having decision‑making capacity must, if reasonably practicable, be given the opportunity to consider matters requiring a decision at a time when the person has decision-making capacity.
(2)A person’s decision‑making capacity must always be taken into account in deciding treatment, care or support, unless this Act expressly provides otherwise.
(3)An act done, or decision made, under this Act for a person who does not have decision-making capacity must be done in the person’s best interests.
(4)In considering a person’s decision‑making capacity under this Act, any approved code of practice under section 114 must be taken into account.
Meaning of mental disorder
In this Act:
mental disorder—
(a)means a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion; but
(b)does not include a condition that is a mental illness.
Meaning of mental illness
In this Act:
mental illness means a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person in 1 or more areas of thought, mood, volition, perception, orientation or memory, and is characterised by—
(a)the presence of at least 1 of the following symptoms:
(i)delusions;
(ii)hallucinations;
(iii)serious disorders of streams of thought;
(iv)serious disorders of thought form;
(v)serious disturbance of mood; or
(b)sustained or repeated irrational behaviour that may be taken to indicate the presence of at least 1 of the symptoms mentioned in paragraph (a).
People not to be regarded as having mental disorder or mental illness
For this Act, a person is not to be regarded as having a mental disorder or mental illness only because of any of the following:
(a)the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular political opinion or belief;
(b)the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular religious opinion or belief;
(c)the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular philosophy;
(d)the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular sexual preference or sexual orientation;
(e)the person engages in or refuses or fails to engage in, or has engaged in or has refused or failed to engage in, a particular political activity;
(f)the person engages in or refuses or fails to engage in, or has engaged in or has refused or failed to engage in, a particular religious activity;
(g)the person engages in or has engaged in sexual promiscuity;
(h)the person engages in or has engaged in immoral conduct;
(i)the person engages in or has engaged in illegal conduct;
(j)the person takes or has taken alcohol or any other drug;
(k)the person engages in or has engaged in antisocial behaviour.
Meaning of carer
(1)For this Act, a person is a carer if the person provides personal care, support or assistance to a person who has a mental disorder or mental illness.
(2)However, a person is not a carer for another person—
(a)in relation to care, support or assistance that is provided—
(i)under a commercial arrangement, or an arrangement that is substantially commercial; or
(ii)in the course of doing voluntary work for a charitable, welfare or community organisation; or
(iii)as part of a course of education or training; or
(b)just because the person is the domestic partner, parent, child or other relative, or guardian of the other person; or
(c)just because the person lives with the other person.
Proceedings relating to children
A person who is the subject of a proceeding is a child for the proceeding if the person was a child when the proceeding began.
Chapter 3Rights of people with mental disorder or mental illness
Part 3.1Rights in relation to information and communication
Meaning of responsible person—pt 3.1
In this part:
responsible person means—
(a)for a mental health facility that is not conducted by the Territory—the owner of the facility; or
(b)for a psychiatric facility conducted by the Territory—the chief psychiatrist; or
(c)for any other mental health facility or community care facility conducted by the Territory—the director-general of the administrative unit responsible for the conduct of the facility.
Information to be given to people
(1)The responsible person for a mental health facility or community care facility must ensure that, as soon as practicable after it is decided to give treatment, care or support to a person at the facility, the person—
(a)is orally advised of their rights under this Act; and
(b)is given a written information statement including—
(i)a statement of the right to obtain a second opinion from an appropriate mental health professional; and
(ii)a statement of the right to obtain legal advice; and
(iii)a statement that, if the person has decision-making capacity, the person has the right to—
(A)nominate someone else to be the person’s nominated person; and
(B)enter into an advance agreement; and
(C)make an advance consent direction; and
(iv)information about the role of a nominated person under this Act; and
(v)the location of the information required to be available at the facility under section 16; and
(vi)any other information relating to the treatment, care or support of the person that the director-general considers relevant; and
(vii)anything else prescribed by regulation.
(2)A mental health professional giving treatment, care or support in the community to a person with a mental disorder or mental illness must ensure that the advice and information mentioned in subsection (1) (a) and (b) is given to the person as soon as practicable after it is decided to give the person treatment, care or support in the community.
(3)The responsible person or mental health professional must ensure that the advice and information—
(a)is provided in a way that the person is most likely to understand; and
(b)if the person appears to be unable to understand the advice or information, the public advocate is told of that fact.
(4)The responsible person or mental health professional must also take reasonable steps to give a copy of the information to—
(a)if the person has a nominated person—the nominated person; and
(b)if the person has a guardian under the Guardianship and Management of Property Act 1991—the guardian; and
(c)if the person has an attorney under the Powers of Attorney Act 2006—the attorney; and
(d)if a health attorney is involved in the treatment, care or support of the person—the health attorney; and
(e)if the person is a child—each person with parental responsibility for the child under the Children and Young People Act 2008, division 1.3.2 (Parental responsibility); and
(f)if the person has a legal representative—the legal representative.
Information to be available at facilities
(1)The responsible person for a mental health facility or community care facility must ensure that current copies of the following information are available at the facility in a place readily accessible to people admitted to or receiving treatment, care or support at the facility:
(a)this Act, the Guardianship and Management of Property Act 1991 and any other relevant legislation;
(b)any publications prepared by the administrative unit responsible for that legislation for the purpose of explaining the legislation;
(c)information statements printed in different languages;
(d)a list of the names, addresses, telephone numbers and relevant functions of the entities prescribed by regulation.
(2)The responsible person must also ensure that a notice indicating where the information is available is displayed in a prominent position at the facility.
Communication
(1)The responsible person for a mental health facility or community care facility must ensure that a person admitted to or receiving treatment, care or support at the facility—
(a)is given reasonable opportunities and facilities to communicate with people of the person’s choice by means other than written communication; and
(b)is given, on request, reasonable opportunities and facilities for preparing written communications and for enclosing the communications in sealed envelopes.
(2)The responsible person for a mental health facility or community care facility must ensure that any written communication addressed to or written by a person admitted to or receiving treatment, care or support at the facility is forwarded, without being opened and without delay, to the person to whom it is addressed.
(3)Subsection (2) does not apply if the responsible person is complying with a limit imposed on communication between the admitted person and other people under section 48ZO (Limits on communication—forensic mental health order).
Failure by owner of facility to comply with pt 3.1
(1)The owner of a mental health facility that is not conducted by the Territory commits an offence if the owner fails to comply with this part.
Maximum penalty: 20 penalty units.
(2)Subsection (1) does not apply if the owner has a reasonable excuse.
(3)An offence against this section is a strict liability offence.
Part 3.2Nominated people
Nominated person
(1)A person with a mental disorder or mental illness, who has decision‑making capacity, may, in writing nominate someone else to be the person’s nominated person.
Examples
1 a close relative or close friend
2 a carer
3 the person’s neighbour
Note 1If a person makes an advance agreement under pt 3.3, the agreement may set out contact details for a nominated person (see s 26 (2) (c)).
Note 2If a form is approved under s 146A for this provision, the form must be used.
Note 3An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2)However, a person cannot be nominated under subsection (1) unless the person—
(a)is an adult; and
(b)is able to undertake the functions of a nominated person; and
(c)is readily available; and
(d)agrees to the nomination.
Nominated person—functions
(1)The main function of a nominated person for a person with a mental disorder or mental illness is to help the person by ensuring that the interests of the person are respected if the person requires treatment, care or support for a mental disorder or mental illness.
(2)The other functions of a nominated person include—
(a)receiving information under this Act; and
(b)being consulted about decisions in relation to treatment, care or support; and
(c)other functions given to the nominated person under this Act.
Nominated person—obligations of person in charge of facility
The person in charge of an approved mental health facility or approved community care facility must take all reasonable steps to ensure that—
(a)a person receiving treatment, care or support at the facility is asked whether the person has a nominated person; and
(b)if the person has a nominated person—
(i)details about the nominated person and a copy of the written nomination are kept with the person’s record; and
(ii)a process is in place to periodically check the currency of the information kept under subparagraph (i); and
(iii)if the ACAT is involved in decisions about the person—the name of and contact information for the nominated person is given to the ACAT.
Nominated person—end of nomination
(1)A person who has a nominated person and has decision-making capacity may end the nomination by telling a member of the person’s treating team, orally or in writing, that they do not want the nominated person to continue to perform the functions of a nominated person.
(2)A nominated person may end their nomination by telling a member of the person’s treating team, orally or in writing, that they are not able to continue to perform the functions of a nominated person.
NoteIf a form is approved under s 146A for this provision, the form must be used.
(3)A nomination ended by a person under subsection (1) or (2) ends on—
(a)the day the person tells the member of the treating team; or
(b)if the person tells the member of the treating team in writing that the nomination ends on a later day—the later day.
(4)The chief psychiatrist may end the nomination of a nominated person if—
(a)the chief psychiatrist believes on reasonable grounds that—
(i)the nominated person is not able to continue to perform the functions of a nominated person under section 20 (Nominated person—functions); or
(ii)the nominated person no longer satisfies the criteria mentioned in section 19 (2) (Nominated person); or
(iii)it is in the best interest of the person who made the nomination that the nomination ends; and
(b)the chief psychiatrist consults with the person who made the nomination about the reasonable grounds for ending the nomination.
(5)If the chief psychiatrist ends a nomination under subsection (4), the chief psychiatrist—
(a)must make a record about the reason for ending the nomination; and
(b)must give written notice of the day that the nomination is to end to the following:
(i)the person who made the nomination;
(ii)the nominated person;
(iii)a member of the person’s treating team; and
NoteIf a form is approved under s 146A for this provision, the form must be used.
(c)may, if the person who made the nomination has decision‑making capacity, ask the person whether there is someone else who can be nominated; and
(d)must advise the person who made the nomination about advocacy services that may be available to provide assistance to the person.
Examples—par (d)
1the public advocate
2ACT Disability, Aged and Carer Advocacy Service
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(6)A member of a person’s treating team who is told about a nomination ending under subsection (1), (2) or (4) must ensure that—
(a)information about the nomination ending is entered in the person’s record as soon as practicable; and
(b)the person is told in a way that the person is most likely to understand that the information has been entered in the person’s record; and
(c)the person is given a copy of the information entered in the person’s record.
NoteIf a form is approved under s 146A for this provision, the form must be used.
(7)In this section:
treating team, for a person with a mental disorder or mental illness—see section 24.
Nominated person—protection from liability
(1)A nominated person is not civilly liable for anything done or omitted to be done honestly and without recklessness—
(a)in the exercise of a function under this Act; or
(b)in the reasonable belief that the act or omission was in the exercise of a function under this Act.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
(2)Any civil liability that would, apart from subsection (1), attach to a nominated person attaches instead to the Territory.
Part 3.3Advance agreements and advance consent directions
Definitions—pt 3.3
In this part:
representative, of a treating team, means the member of the treating team nominated by the team to exercise the functions of a representative for this part.
treating team, for a person with a mental disorder or mental illness, means the mental health professionals involved in the treatment care or support of the person for a particular episode of treatment, care or support, and includes—
(a)if the person names another mental health professional as the person’s current mental health professional—that other mental health professional; and
(b)if another mental health professional referred the person to the treating team for that episode of care—that other mental health professional.
Rights in relation to advance agreements and advance consent directions
The representative of the treating team for a person with a mental disorder or mental illness must, as soon as practicable, ensure that the person—
(a)is told that the person may enter into an advance agreement; and
(b)is given the opportunity to enter into an advance agreement; and
(c)is told that the person may make an advance consent direction; and
(d)is given the opportunity to make an advance consent direction; and
(e)is told that the person may have someone with them to assist in entering into an advance agreement or making an advance consent direction.
Example—par (e)
a nominated person could assist the person
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Entering into advance agreement
(1)A person with a mental disorder or mental illness who has decision‑making capacity may enter into an agreement (an advance agreement) with the person’s treating team that sets out—
(a)information the person considers relevant to their treatment, care or support for the mental disorder or mental illness (but not information more appropriate to include in an advance consent direction); and
NoteSee s 27 (1) for what an advance consent direction may be about.
(b)any preferences the person has in relation to practical help the person may need as a result of the mental disorder or mental illness.
Examples—practical help
1arranging for the payment of bills
2arranging care or providing care for a close relative or close friend usually cared for by the person with the mental disorder or mental illness
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2)An advance agreement for a person may also set out the following:
(a)if the person has an advance consent direction—a copy of the advance consent direction;
(b)if the person has a nominated person—contact details for the nominated person;
(c)if there is a person who is likely to provide practical help under the agreement—contact details for the person;
(d)if the person has a carer—contact details for the carer;
(e)if the person has a guardian under the Guardianship and Management of Property Act 1991—contact details for the guardian;
(f)if the person has an attorney under the Powers of Attorney Act 2006—contact details for the attorney;
(g)any other relevant details.
Examples—par (g)
1that the person cannot speak, read or write English, but is fluent in another stated language (for example, AUSLAN or Italian)
2that the person cannot speak but can communicate using a stated communication device (for example, a communication book or board)
(3)An advance agreement for a person must be—
(a)in writing; and
(b)signed by—
(i)the person; and
(ii)the representative of the person’s treating team; and
(iii)if the person has a nominated person—the nominated person.
Note If a form is approved under s 146A for this provision, the form must be used.
(4)If there is a person who is likely to provide practical help under the advance agreement, the agreement may also be signed by that person.
(5)The representative of the person’s treating team must ensure that—
(a)the advance agreement is entered in the person’s record; and
(b)a copy of the advance agreement is given to—
(i)the person; and
(ii)if the person has a nominated person—the nominated person; and
(iii)any member of the person’s treating team who does not have access to the person’s record.
Making advance consent direction
(1)A person with a mental disorder or mental illness may make a direction (an advance consent direction) about 1 or more of the following:
(a)the treatment, care or support that the person consents to receiving if the mental disorder or mental illness results in the person not having decision-making capacity;
(b)particular medications or procedures that the person consents to receiving if the mental disorder or mental illness results in the person not having decision-making capacity;
(c)particular medications or procedures that the person does not consent to receiving if the mental disorder or mental illness results in the person not having decision-making capacity;
(d)the people who may be provided with information about the treatment, care or support the person requires for a mental disorder or mental illness;
(e)the people who are not to be provided with information about the treatment, care or support the person requires for a mental disorder or mental illness.
NoteThe disclosure of personal health information is subject to the Health Records (Privacy and Access) Act 1997.
(2)A person with a mental disorder or mental illness may make an advance consent direction only if the person—
(a)has decision-making capacity; and
(b)has consulted with the person’s treating team about options for treatment care and support in relation to the mental disorder or mental illness.
(3)An advance consent direction that does not include advance consent for electroconvulsive therapy must be—
(a)in writing; and
(b)signed by the person in the presence of a witness who is not a treating health professional for the person, and by the witness in the presence of the person; and
(c)signed by the representative of the person’s treating team in the presence of a witness who is not a treating health professional for the person, and by the witness in the presence of the representative.
NoteIf a form is approved under s 146A for this provision, the form must be used.
(4)An advance consent direction that includes advance consent for electroconvulsive therapy must be—
(a)in writing; and
(b)signed by the person in the presence of 2 witnesses who are not treating health professionals for the person, and by each witness in the presence of the other witness and the person; and
(c)signed by the representative of the person’s treating team in the presence of 2 witnesses who are not treating health professionals for the person, and by each witness in the presence of the other witness and the representative.
NoteIf a form is approved under s 146A for this provision, the form must be used.
(5)The representative of the person’s treating team must ensure that—
(a)the advance consent direction is entered in the person’s record; and
(b)a copy of the advance consent direction is given to—
(i)the person; and
(ii)if the person has a nominated person—the nominated person; and
(iii)if the person has a guardian under the Guardianship and Management of Property Act 1991—the guardian and the ACAT; and
(iv)if the person has an attorney under the Powers of Attorney Act 2006—the attorney; and
(v)any member of the person’s treating team who does not have access to the person’s record.
Giving treatment etc under advance agreement or advance consent direction
(1)A mental health professional must, before giving treatment, care or support to a person with a mental disorder or mental illness, take reasonable steps to find out whether an advance agreement or advance consent direction is in force in relation to the person.
(2)If an advance agreement is in force and the person does not have decision-making capacity, a mental health professional—
(a)must, if reasonably practicable, give treatment, care or support to the person in accordance with the preferences expressed in the agreement; and
(b)must not apprehend, detain, restrain or use force to give effect to the agreement.
(3)If an advance consent direction is in force and the person does not have decision-making capacity, a mental health professional—
(a)may give the person the treatment, care or support if the direction gives consent for the treatment, care or support; and
(b)may give a particular medication or procedure if the direction indicates that the person consents to the medication or procedure; and
(c)must not give a particular medication or procedure if the direction indicates that the person does not consent to the medication or procedure; and
(d)must not apprehend, detain, restrain or use force to give effect to the direction.
(4)If an advance consent direction is in force in relation to a person but the person resists being given treatment, care or support to which they have consented under the direction, a mental health professional may give the treatment, care or support to the person only if the ACAT, on application by the mental health professional, orders that the treatment, care or support may be given.
(5)If a mental health professional believes on reasonable grounds that giving treatment, care or support to a person with impaired decision‑making capacity in accordance with an advance consent direction is unsafe or inappropriate, the mental health professional may give the person other treatment, care or support only if—
(a)both of the following apply:
(i)the person is willing to receive the treatment, care or support;
(ii)the person has a guardian or health attorney under the Guardianship and Management of Property Act 1991, or attorney under the Powers of Attorney Act 2006, and the guardian, health attorney or attorney gives consent to the treatment, care or support in accordance with the guardian, health attorney or attorney’s appointment; or
(b)the ACAT, on application by the mental health professional, orders that the treatment, care or support may be given.
(6)The mental health professional must enter in the person’s record the reasons for the treatment, care or support given under subsection (5) (a).
Ending advance agreement or advance consent direction
(1)A person who has decision-making capacity may end the person’s advance agreement by—
(a)telling a member of the person’s treating team, orally or in writing, that the person wants to end the agreement; or
(b)entering into another advance agreement.
(2)A person who has decision-making capacity may end the person’s advance consent direction by—
(a)telling a member of the person’s treating team, orally or in writing, that the person wants to end the direction; or
(b)making another advance consent direction.
(3)An advance agreement ended under subsection (1) (a) or an advance consent direction ended under subsection (2) (a) ends on—
(a)the day the person tells the member of the person’s treating team; or
(b)if the person tells the member of the person’s treating team in writing that agreement or direction ends on a later day—the later day.
(4)A member of a person’s treating team who is told about an advance agreement ending under subsection (1) (a) or an advance consent direction ending under subsection (2) (a) must ensure that—
(a)information about the end of the agreement or direction—
(i)is entered in the person’s record as soon as practicable; and
(ii)is given to any member of the person’s treating team who does not have access to the person’s record; and
(iii)if the person has a nominated person—is given to the nominated person; and
(b)the person is told in a way that the person is most likely to understand that the information has been entered in the person’s record; and
(c)the person is given a copy of the information entered in the person’s record.
Effect of advance agreement and advance consent direction on guardian with authority to give consent for treatment, care or support
(1)This section applies if—
(a)an advance agreement or an advance consent direction is in force in relation to a person; and
(b)the person has a guardian under the Guardianship and Management of Property Act 1991 with authority to give consent for medical treatment involving treatment, care or support under this Act.
(2)Any power of the guardian to consent to treatment, care or support for the person must be exercised taking into account the advance agreement or advance consent direction.
(3)However, the guardian’s consent is not required for any treatment, care or support for which consent is provided under the advance consent direction.
Effect of advance agreement and advance consent direction on attorney with power to deal with health care matters
(1)This section applies if—
(a)an advance agreement or an advance consent direction is in force in relation to a person; and
(b)the person has an enduring power of attorney under the Powers of Attorney Act 2006 that deals with health care matters under that Act.
(2)The advance agreement or advance consent direction may be used by the attorney to work out a person’s wishes or needs under the Powers of Attorney Act 2006, schedule 1, section 1.6 (Participation in decision making).
(3)Any power of the attorney to consent to treatment, care or support for the person must be exercised taking into account the advance agreement or advance consent direction.
(4)However, the attorney’s consent is not required for any treatment, care or support for which consent is provided under the advance consent direction.
Effect of health direction on previous advance consent direction
(1)This section applies if—
(a)a person makes an advance consent direction; and
(b)after the direction is made the person makes a health direction under the Medical Treatment (Health Directions) Act 2006; and
(c)the health direction deals with a matter mentioned in the advance consent direction.
(2)The advance consent direction has no effect to the extent that is inconsistent with the health direction.
Chapter 4Assessments
Part 4.1Applications for assessment orders
NoteIn addition to assessments under this chapter, a person may also be assessed as a result of apprehension and examination under ch 6 (Emergency detention).
Applications by people with mental disorder or mental illness—assessment order
(1)This section applies if a person believes themself to be, because of mental disorder or mental illness—
(a)unable to make reasonable judgments about matters relating to their own health or safety; or
(b)unable to do something necessary for their own health or safety; or
(c)likely to do serious harm to others.
(2)The person may apply to the ACAT for an assessment order in relation to themself.
Note 1Requirements for applications to the ACAT are set out in the ACT Civil and Administrative Tribunal Act 2008, s 10.
Note 2If a form is approved under the ACT Civil and Administrative Tribunal Act 2008, s 117 for the application, the form must be used.
Applications by other people—assessment order
(1)This section applies if a person (the applicant) believes on reasonable grounds that—
(a)the health or safety of another person (the subject person) is, or is likely to be, substantially at risk because the subject person is unable, because of mental disorder or mental illness—
(i)to make reasonable judgments about matters relating to the subject person’s health or safety; or
(ii)to do something necessary for the subject person’s health or safety; or
(b)another person (the subject person) is doing, or is likely to do, because of mental disorder or mental illness, serious harm to others.
(2)The applicant may apply to the ACAT for an assessment order in relation to the subject person.
Note 1Requirements for applications to the ACAT are set out in the ACT Civil and Administrative Tribunal Act 2008, s 10.
Note 2 If a form is approved under the ACT Civil and Administrative Tribunal Act 2008, s 117 for the application, the form must be used.
Applications by referring officers—assessment order
(1)This section applies if a referring officer believes on reasonable grounds that—
(a)a person alleged to have committed an offence has a mental disorder or mental illness; and
(b)because of the mental disorder or mental illness—
(i)the person’s health or safety is, or is likely to be, substantially at risk; or
(ii)the person is doing, or is likely to do, serious harm to others; and
(c)it may not be appropriate to prosecute, or to continue to prosecute, the person considering—
(i)the nature and circumstances of the alleged offence; and
(ii)the person’s apparent mental disorder or mental illness.
(2)The referring officer may apply to the ACAT for an assessment order in relation to the person.
NoteAfter an assessment is made, the ACAT may decide to make a mental health order in relation to a person (see pt 5.2). The ACAT is not able to make a forensic mental health order for a person unless the person is otherwise a person for whom a forensic mental health order can be made (see ch 7).
(3)A referring officer who applies under subsection (2) and believes on reasonable grounds that there is a risk of serious danger to public safety from the person, must tell the ACAT, in writing, about the risk and the basis for the belief about the risk.
(4)In this section:
alleged to have committed an offence—a person is alleged to have committed an offence if—
(a)the person is arrested in connection with an offence; or
(b)a police officer believes on reasonable grounds that there are sufficient grounds on which to charge the person in connection with an offence; or
(c)the person is charged in connection with an offence.
Applicant and referring officer to tell ACAT of risks—assessment order
(1)This section applies if—
(a)a person (the applicant) applies under section 34 (Applications by other people—assessment order), or a referring officer applies under section 35, for an assessment order in relation to someone else; and
(b)the applicant or referring officer believes on reasonable grounds that anything to do with the application process is likely to substantially increase—
(i)the risk to the other person’s health or safety; or
(ii)the risk of serious harm to others.
(2)The application must state—
(a)the applicant’s or referring officer’s belief about the substantially increased risk; and
(b)the basis for the belief.
(3)The ACAT must give the chief psychiatrist a copy of the application.
Part 4.2Assessment orders
36AAssessment order
The ACAT may order an assessment of a person if—
(a)an application for an assessment order is made under part 4.1 and the ACAT is satisfied on the face of the application that—
(i)the person appears to have a mental disorder or mental illness; and
(ii)either—
(A)the person’s health or safety is, or is likely to be, substantially at risk; or
(B)the person is doing, or is likely to do, serious harm to others; or
(b)the ACAT reviews a mental health order in force in relation to the person under section 36ZQ (Review, amendment or revocation of mental health order); or
(c)the person is required to submit to the jurisdiction of the ACAT under—
(i)an ACAT mental health provision in a care and protection order or interim care and protection order; or
(ii)an interim therapeutic protection order; or
(d)the person is required by a court to submit to the jurisdiction of the ACAT under the Crimes Act, part 13 or the Crimes Act 1914 (Cwlth), part 1B; or
(e)the ACAT reviews an order for detention in force in relation to the person under section 72 (Review of detention under court order).
NoteIf a person is assessed under an assessment order as having a mental disorder or mental illness, the ACAT may make a mental health order or forensic mental health order in relation to the person (see s 36V, s 36ZD, s 48ZA and s 48ZH).
36BConsent for assessment order
(1)If the ACAT is considering ordering an assessment of a person under section 36A (a), (b) or (c), the ACAT must take reasonable steps to—
(a)tell the person in writing that—
(i)the ACAT is considering ordering an assessment; and
(ii)an assessment may lead to an order for treatment; and
(iii)if an order for treatment is made at a later time the person’s rights in relation to treatment will be explained to the person at that time; and
(b)find out the person’s opinion in relation to the assessment; and
(c)obtain the person’s consent to the assessment.
(2)However, subsection (1) does not prevent the ACAT from ordering an assessment without the person’s consent.
36CEmergency assessment order
(1)This section applies if—
(a)the ACAT is considering ordering an assessment of a person under section 36A (a), (b) or (c); and
(b)a presidential member of the ACAT has a serious concern about the immediate safety of the person, the applicant for the order or another person arising out of the application process.
(2)The presidential member of the ACAT—
(a)must give the chief psychiatrist written notice of the serious concern; and
(b)may if necessary and reasonable order an assessment without complying with section 36B (Consent for assessment order).
Note 1For principles that must be taken into account when exercising a function under this Act, see s 6.
Note 2Section 79A (Notice of hearing) does not apply in relation to the making of an emergency assessment order (see s 79A (3)).
36DContent and effect of assessment order
(1)An assessment order (including an emergency assessment order) must—
(a)state the nature of the assessment to be conducted; and
(b)state the approved mental health facility at which the assessment is to be conducted and, if appropriate, the person who is to conduct the assessment; and
(c)direct the person to be assessed to attend the mental health facility and, if necessary and reasonable, stay at the facility until the assessment has been conducted; and
(d)direct the person in charge of the mental health facility to—
(i)if appropriate, admit the person to be assessed to the facility to conduct the assessment; and
(ii)if necessary and reasonable, detain the person at the facility until the assessment has been conducted; and
(iii)provide the assistance that is necessary and reasonable to conduct the assessment.
(2)An assessment order (including an emergency assessment order) authorises—
(a)the conduct of the assessment stated in the order; and
(b)anything necessary and reasonable to be done to conduct the assessment.
(3)In making an assessment order (other than an emergency assessment order), the ACAT must explain the effect of section 36V (Psychiatric treatment order) or section 36ZD (Community care order) to the person in relation to whom the order is to be made, in a way that the person is most likely to understand.
NoteUnder s 36V and s 36ZD, an application is not required for a psychiatric treatment order or community care order in relation to a person who has been assessed under an assessment order as having a mental disorder or mental illness.
36EPublic advocate to be told about assessment order
The ACAT must tell the public advocate, in writing, about an assessment order made in relation to a person immediately after the order is made.
36FTime for conducting assessment
(1)The assessment of a person in relation to whom an assessment order is made must be conducted as soon as practicable, and not later than—
(a)7 days after the day the order is made; or
(b)if an earlier day is stated in the order—the stated day.
(2)However, the ACAT may, on application, extend the period for conducting the assessment if satisfied, based on clinical evidence provided to it by the person conducting the assessment, that a satisfactory assessment cannot be completed within the period under subsection (1).
(3)The extension must be for a period not longer than 7 days.
36GRemoval order to conduct assessment
(1)This section applies if the ACAT makes—
(a)an assessment order in relation to a person under section 36A (a), (b) or (c) (Assessment order) who—
(i)has not been served with a subpoena under the ACT Civil and Administrative Tribunal Act 2008, section 41 (Powers in relation to witnesses etc) for a reason stated in section 82 (3) (Subpoena to appear in person); or
(ii)does not appear at a proceeding in relation to the order under a subpoena given under the ACT Civil and Administrative Tribunal Act 2008, section 41; or
(iii)does not comply with the assessment order; or
(b)an assessment order in relation to a person under section 36A (d) or (e); or
(c)an emergency assessment order in relation to a person.
(2)The ACAT may order (a removal order) the removal of the person to an approved mental health facility to conduct the assessment if satisfied that—
(a)the person has been made aware of the assessment order (unless the assessment order is an emergency assessment order); and
(b)either—
(i)if the person does not comply with the assessment order—the person does not have a reasonable excuse for failing to comply with the order; or
(ii)in any other case—the ACAT is satisfied that it is appropriate in the circumstances.
(3)The removal order must state—
(a)the day (not later than 1 month after the day the order is made) when the order stops having effect; and
(b)the mental health facility to which the person is to be removed; and
(c)the nature of the assessment to be conducted in relation to the person.
(4)A removal order authorises—
(a)the apprehension of the person named in the order; and
(b)the removal of the person to the mental health facility stated in the order.
36HExecuting removal order
(1)A removal order made under section 36G (2) in relation to a person may be executed by a police officer.
(2)The police officer must, before removing the person, explain to the person the purpose of the order.
NoteSee s 139F (Powers of entry and apprehension) and s 140 (Powers of search and seizure).
36IContact with others
(1)This section applies if a person is admitted to a mental health facility under an assessment order.
(2)The person in charge of the mental health facility must, as soon as practicable after admitting the person to the facility, tell the public advocate in writing that the person has been admitted.
(3)The person in charge of the mental health facility must ensure that, while at the facility, the person has access to facilities, and adequate opportunity, to contact each of the following:
(a)a relative or friend;
(b)the public advocate;
(c)a lawyer;
(d)if the person has a nominated person—the nominated person.
36JPublic advocate and lawyer to have access
(1)This section applies if a person is admitted to a mental health facility under an assessment order.
(2)The public advocate and the person’s lawyer are entitled to have access to the person at any time.
(3)The person in charge of the mental health facility must, if asked by the public advocate or the person’s lawyer, give the reasonable assistance necessary to allow the public advocate or lawyer to have access to the person.
36KPerson to be assessed to be told about order
(1)This section applies if a person is admitted to a mental health facility under an assessment order.
(2)The person in charge of the mental health facility must, before an assessment is conducted, ensure that the person to be assessed is told about the assessment order, including the process of assessment and possible outcome of an assessment, in a language and way of communicating that the person is likely to understand.
(3)This section applies even if the person to be assessed was present when the order was made.
36LCopy of assessment
(1)This section applies if an assessment is conducted at a mental health facility under an assessment order.
(2)The person in charge of the mental health facility must, as soon as practicable, but not later than 7 days after completing the assessment—
(a)give a copy of the assessment to—
(i)the person assessed; and
(ii)the ACAT; and
(iii)the public advocate; and
(iv)if the person is a child—each person with parental responsibility for the child under the Children and Young People Act 2008, division 1.3.2 (Parental responsibility); and
(v)if the person was assessed as a result of an application under section 35 (Applications by referring officers—assessment order)—the referring officer; and
(b)tell the following people in writing about the outcome of the assessment:
(i)if the person has a nominated person—the nominated person;
(ii)if the person has a guardian under the Guardianship and Management of Property Act 1991—the guardian;
(iii)if the person has an attorney under the Powers of Attorney Act 2006—the attorney.
36MNotice of outcome of assessment
(1)This section applies if an assessment is conducted as a result of an application under section 34 (Applications by other people—assessment order) or section 35 (Applications by referring officers—assessment order).
(2)The ACAT, must as soon as practicable after it is given a copy of the assessment under section 36L (2), give written notice to the applicant or the referring officer of any recommendations made by the assessment.
(3)An applicant or referring officer who receives notice under subsection (2) may, within 48 hours of receiving the notice, give the following to the ACAT:
(a)further information about the person’s mental disorder or mental illness;
(b)concerns about the implications for the person or for other people of not considering a mental health order in relation to the person.
(4)In deciding whether to hold a hearing to consider making a mental health order in relation to a person, the ACAT must take into account the information provided under subsection (3).
Chapter 5Mental health orders
Part 5.1Preliminary
36NDefinitions—ch 5
In this chapter:
relevant official, for a mental health order, means—
(a)for a psychiatric treatment order—the chief psychiatrist; or
(b)for a community care order—the care coordinator.
relevant person, for a mental health order application, means—
(a)for a psychiatric treatment order—the chief psychiatrist or another person nominated by the chief psychiatrist; and
(b)for a community care order—a person with authority to give the treatment, care or support proposed to be given to the subject of the order.
Part 5.2Applications for mental health orders
36O Applications for mental health orders
(1)This section applies if a relevant person believes on reasonable grounds that a person (the subject person) is a person in relation to whom the ACAT could reasonably make an order under section 36V (Psychiatric treatment order) or section 36ZD (Community care order).
(2)The relevant person may apply to the ACAT for a mental health order in relation to the subject person.
Note 1An application is not required in relation to a person who has been assessed under an assessment order as having a mental disorder or mental illness (see s 36V and s 36ZD).
Note 2Requirements for applications to the ACAT are set out in the ACT Civil and Administrative Tribunal Act 2008, s 10.
Note 3If a form is approved under the ACT Civil and Administrative Tribunal Act 2008, s 117 for the application, the form must be used.
(3)The application must include—
(a)a written statement by the relevant person addressing the criteria the ACAT must consider in making an order under section 36V (Psychiatric treatment order) or section 36ZD (Community care order); and
(b)a plan setting out the proposed treatment, care or support of the subject person.
36PApplicant to tell ACAT of risks
(1)This section applies if—
(a)a person (the applicant) applies under section 36O for a mental health order in relation to someone else (the subject person); and
(b)the applicant believes on reasonable grounds that anything to do with the application process is likely to substantially increase—
(i)the risk to the subject person’s health or safety; or
(ii)the risk of serious harm to others.
(2)The application must state—
(a)the applicant’s belief about the substantially increased risk; and
(b)the basis for the belief.
Part 5.3Making of mental health orders—preliminary matters
36QACAT must consider assessment—mental health order
(1)Before making a mental health order in relation to a person, the ACAT must consider—
(a)an assessment of the person conducted under an assessment order; or
(b)another assessment of the person that the ACAT considers appropriate.
(2)In considering an assessment, the ACAT must take into account how recently the assessment was conducted.
(3)The ACAT may consider making a mental health order even if an assessment recommends that the ACAT not consider making a mental health order.
36RConsultation by ACAT—mental health order
(1)Before making a mental health order in relation to a person, the ACAT must, as far as practicable, consult—
(a)if the person is a child—each person with parental responsibility for the child under the Children and Young People Act 2008, division 1.3.2 (Parental responsibility); and
(b)if the person has a guardian under the Guardianship and Management of Property Act 1991—the guardian; and
(c)if the person has an attorney under the Powers of Attorney Act 2006—the attorney; and
(d)if the person has a nominated person—the nominated person; and
(e)if a health attorney is involved in the treatment, care or support of the person—the health attorney; and
(f)if the chief psychiatrist or care-coordinator is likely to be responsible for providing the treatment, care or support proposed to be ordered—the chief psychiatrist or care‑coordinator; and
(g)if the person is a detainee, a person released on licence, or a person serving a community-based sentence—the corrections director-general; and
(h)if the person is a covered by a bail order that includes a condition that the person accept supervision under the Bail Act 1992, section 25 (4) (e) or section 25A—the director‑general responsible for the supervision of the person under the Bail Act 1992; and
(i)if the person is a child covered by a bail order that includes a condition that the child accept supervision under the Bail Act 1992, section 26 (2)—the CYP director-general; and
(j)if the person is a young detainee or a young offender serving a community-based sentence—the CYP director-general; and
(k)if an assessment order under part 4.1 (Applications for assessment orders) gave rise to the ACAT consideration of the making of the mental health order—the applicant for the assessment order.
(2)Before making a mental health order in relation to a person who has a carer, the ACAT must, if the ACAT has contact details for the carer, tell the carer in writing that—
(a)a hearing will be held in relation to making a mental health order for the person; and
(b)the carer may do either or both of the following:
(i)make a submission to the ACAT in relation to making a mental health order for the person;
(ii)apply to the ACAT to attend the hearing.
36SACAT must hold hearing—mental health order
Before making a mental health order in relation to a person, the ACAT must hold a hearing into the matter.
36TWhat ACAT must take into account—mental health order
(1)In making a mental health order in relation to a person, the ACAT must take into account the following:
(a)for a person the subject of an application under section 36O (Applications for mental health orders)—a plan for the proposed treatment, care or support of the person, mentioned in section 36O (3) (b);
(b)whether the person consents, refuses to consent or has the decision-making capacity to consent, to a proposed course of treatment, care or support;
(c)the views and wishes of the person, so far as they can be found out, including in—
(i)an advance agreement; and
(ii)an advance consent direction;
(d)the views of the people responsible for the day‑to‑day care of the person, so far as those views are made known to the ACAT;
(e)the views of the people appearing at the proceeding;
(f)the views of the people consulted under section 36R (Consultation by ACAT—mental health order);
(g)that any restrictions placed on the person should be the minimum necessary for the safe and effective care of the person;
(h)any alternative treatment, care or support available, including—
(i)the purpose of the treatment, care or support; and
(ii)the benefits likely to be derived by the person from the treatment, care or support; and
(iii)the distress, discomfort, risks, side effects or other disadvantages associated with the treatment, care or support;
(i)any relevant medical history of the person;
(j)for a person required by a court to submit to the jurisdiction of the ACAT under the Crimes Act, part 13 or the Crimes Act 1914 (Cwlth), part 1B—
(i)the nature and circumstances of the alleged offence or the offence in relation to which the person is charged; and
(ii)the nature and extent of the person’s mental illness or mental disorder and the effect it is likely to have on the person’s behaviour in the future; and
(iii)whether, if the person is not detained—
(A)the person’s health or safety is, or is likely to be, substantially at risk; or
(B)the person is likely to do serious harm to others;
(k)anything else prescribed by regulation.
NoteFor principles that must be taken into account when exercising a function under this Act, see s 6.
(2)Before the ACAT makes a mental health order for the provision of particular treatment, care or support at a stated facility or by a stated person, the ACAT must be satisfied that the treatment, care or support can be provided at the stated facility or by the stated person.
(3)The ACAT may ask the relevant person to provide information on the options that the relevant person considers are appropriate for the provision of particular treatment, care or support under the proposed mental health order.
(4)The relevant person must respond to the ACAT within 7 days after receiving a request under subsection (3), or any longer time allowed by the ACAT.
36UACAT must not order particular treatment, care or support—mental health order
In making a mental health order in relation to a person, the ACAT must not order a particular form of treatment, care or support.
Part 5.4Psychiatric treatment orders
36VPsychiatric treatment order
(1)This section applies to—
(a)a person assessed under an assessment order; or
(b)a person in relation to whom an application for a mental health order has been made under part 5.2; or
(c)a person in relation to whom an application for a forensic mental health order has been made under division 7.1.2; or
(d)a person required by a court to submit to the jurisdiction of the ACAT under the Crimes Act, part 13 or the Crimes Act 1914 (Cwlth), part 1B.
(2)The ACAT may make a psychiatric treatment order in relation to the person if—
(a)the person has a mental illness; and
(b)either—
(i)the person does not have decision-making capacity to consent to the treatment, care or support and refuses to receive the treatment; or
(ii)the person has decision-making capacity to consent to the treatment, care or support, but refuses to consent; and
(c)the ACAT believes on reasonable grounds that, because of the mental illness, the person—
(i)is doing, or is likely to do, serious harm to themself or someone else; or
(ii)is suffering, or is likely to suffer, serious mental or physical deterioration; and
(d)in relation to a person mentioned in paragraph (b) (ii)—the ACAT is satisfied that the harm or deterioration, or likely harm or deterioration, mentioned in paragraph (c) is of such a serious nature that it outweighs the person’s right to refuse to consent; and
(e)the ACAT is satisfied that psychiatric treatment, care or support is likely to—
(i)reduce the harm or deterioration, or the likelihood of the harm or deterioration, mentioned in paragraph (c); or
(ii)result in an improvement in the person’s psychiatric condition; and
(f)if an application has been made for a forensic mental health order—the ACAT is satisfied that a psychiatric treatment order should be made instead; and
(g)the ACAT is satisfied that the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.
36WContent of psychiatric treatment order
(1)A psychiatric treatment order made in relation to a person may state 1 or more of the following:
(a)an approved mental health facility to which the person may be admitted;
(b)that the person must do either or both of the following:
(i)undergo psychiatric treatment, other than electroconvulsive therapy or psychiatric surgery;
(ii)undertake a counselling, training, therapeutic or rehabilitation program;
(c)that limits may be imposed on communication between the person and other people.
(2)A psychiatric treatment order made in relation to a person must—
(a)state that the person must comply with any determination made under section 36Z (Role of chief psychiatrist—psychiatric treatment order); and
(b)be accompanied by a statement about how the person meets the criteria under section 36V (2) (Psychiatric treatment order).
(3)A psychiatric treatment order must not include any requirement mentioned in section 36Y (1) (Content of restriction order made with psychiatric treatment order).
36XCriteria for making restriction order with psychiatric treatment order
In addition to making a psychiatric treatment order in relation to a person, the ACAT may make a restriction order in relation to the person if it believes on reasonable grounds that—
(a)it is in the interests of the person’s health or safety or the safety of someone else or the public to do so; and
(b)the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.
36YContent of restriction order made with psychiatric treatment order
(1)A restriction order made under section 36X in relation to a person may state either or both of the following:
(a)that the person must—
(i)live (but not be detained) at a stated place; or
(ii)be detained at a stated place;
(b)that the person must not approach a stated person or stated place or undertake stated activities.
(2)A restriction order does not prevent the chief psychiatrist from granting leave to a person detained at a stated place.
36ZRole of chief psychiatrist—psychiatric treatment order
(1)The chief psychiatrist is responsible for the treatment, care or support of a person to whom a psychiatric treatment order applies.
(2)Within 5 working days after the day the order is made, the chief psychiatrist must determine, in writing—
(a)whether the person requires admission to an approved mental health facility to receive treatment, care or support under the order and, if so, whether the person can be given leave from the facility; and
(b)for a person living in the community—the times when and the place where the person is required to attend to receive treatment, care or support, in accordance with the order; and
(c)the nature of the psychiatric treatment to be given to the person.
NoteIf a form is approved under s 146A for a determination, the form must be used.
(3)If the chief psychiatrist forms a belief on reasonable grounds that a person subject to a psychiatric treatment order who is living in the community requires admission to an approved mental health facility to receive treatment, care or support under the order, the chief psychiatrist may determine, in writing—
(a)the approved mental health facility that the person is to be admitted to; and
(b)the nature of the psychiatric treatment to be given to the person; and
(c)whether the person can be given leave from the facility.
NoteIf a form is approved under s 146A for a determination, the form must be used.
(4)For subsection (2) (c) or (3) (b), the chief psychiatrist must not determine treatment that has, or is likely to have, the effect of subjecting the person to whom it is given to undue stress or deprivation, having regard to the benefit likely to result from the treatment.
(5)Before making a determination in relation to a person, the chief psychiatrist must—
(a)take all reasonable steps to consult the following:
(i)the person;
(ii)if the person is a child—each person with parental responsibility for the child under the Children and Young People Act 2008, division 1.3.2 (Parental responsibility);
(iii)if the person has a guardian under the Guardianship and Management of Property Act 1991—the guardian;
(iv)if the person has an attorney under the Powers of Attorney Act 2006—the attorney;
(v)if the person has a carer—the carer;
(vi)if the person has a nominated person—the nominated person;
(vii)if a health attorney is involved in the treatment, care or support of the person—the health attorney;
Dictionary, definitions of information statement etc
substitute
information statement means an information statement mentioned in section 15 (1) (b).
informed consent, for chapter 9 (Electroconvulsive therapy and psychiatric surgery)—see section 54.
inspector, for chapter 13 (Private psychiatric facilities)—see section 123.
interstate custodial patient, for chapter 15 (Interstate application of mental health laws)—see section 139CB.
interstate non-custodial order, for chapter 15 (Interstate application of mental health laws)—see section 139CB.
licence, for chapter 13 (Private psychiatric facilities)—see section 123.
licensed premises, for chapter 13 (Private psychiatric facilities)—see section 123.
licensee, for chapter 13 (Private psychiatric facilities)—see section 123.
Dictionary, new definition of mental disorder
insert
mental disorder—see section 9.
Dictionary, definition of mental dysfunction
omit
Dictionary, definitions of mental health facility, mental health professional and mental illness
substitute
mental health facility—
(a)means a facility for the treatment, care or support, rehabilitation or accommodation of people with a mental illness; and
(b)includes a psychiatric facility.
mental health professional means a doctor, nurse, psychiatrist, psychologist, social worker or therapist (including occupational therapist) or other person who provides services for people with a mental disorder or mental illness.
mental illness—see section 10.
Dictionary, new definition of nominated person
insert
nominated person means a person nominated under section 19.
Dictionary, definition of offender with a mental impairment
omit
Dictionary, definition of official visitor
omit
section 121
substitute
section 121 (1)
Dictionary, new definitions
insert
principal official visitor means the principal official visitor appointed under section 122AA.
private psychiatric facility means a facility in relation to which a licence is issued under chapter 13 (Private psychiatric facilities).
Dictionary, definition of private psychiatric institution
omit
Dictionary, definition of proceeding
substitute
proceeding means a proceeding on an application, or other proceeding in, the ACAT.
Dictionary, new definition of psychiatric facility
insert
psychiatric facility—
(a)for this Act generally—means a hospital or other facility for the treatment, care or support, rehabilitation or accommodation of people who have a mental illness, that is—
(i)a facility conducted by the Territory; or
(ii)a private psychiatric facility; and
(b)for chapter 13 (Private psychiatric facilities)—see section 123.
Dictionary, definition of psychiatric institution
omit
Dictionary, new definitions
insert
publish, for part 7.2 (Affected people)—see section 48ZZA.
registered affected person, in relation to a forensic patient—see section 48ZZC.
relevant information, for part 12.5 (Sharing information—government agencies)—see section 122G.
relevant official—
(a)for a mental health order, for chapter 5 (Mental health orders)—see section 36N; or
(b)for a forensic mental health order, for part 7.1 (Forensic mental health orders)—see section 48S.
relevant person—
(a)for a mental health order application, for chapter 5 (Mental health orders)—see section 36N; and
(b)for a forensic mental health order application, for part 7.1 (Forensic mental health orders)—see section 48S.
representative, of a treating team, for part 3.3 (Advance agreements and advance consent directions)—see section 24.
Dictionary, definitions of responsible person etc
substitute
responsible person, for chapter 3 (Rights of people with mental disorder or mental illness)—see section 14.
restriction order means an order made under section 36X or section 36ZF.
reviewable decision, for chapter 16 (Notification and review of decisions)—see section 139CR.
State, for chapter 15 (Interstate application of mental health laws)—see section 139CB.
subject person, for chapter 11 (ACAT procedural matters)—see section 80.
Dictionary, new definitions
insert
transfer direction—see section 48ZZJ (3).
treating team, for a person with a mental disorder or mental illness, for part 3.3 (Advance agreements and advance consent directions)—see section 24.
treatment, care or support, for a mental disorder or mental illness—
(a)means things done in the course of the exercise of professional skills to remedy the disorder or illness or lessen its ill effects or the pain or suffering it causes; and
(b)includes the giving of medication and counselling, training, therapeutic and rehabilitation programs, care or support.
Examples—rehabilitation support
1 support to improve social confidence and integration
2 assistance to improve work skills
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
victims of crime commissioner means the victims of crime commissioner appointed under the Victims of Crime Act 1994.
young detainee—see the Children and Young People Act 2008, section 95.
young offender—see the Children and Young People Act 2008, dictionary.
young person—see the Children and Young People Act 2008, section 12.
Schedule 1Other amendments
(see s 3)
Part 1.1Children and Young People Act 2008
[1.1]Section 530 (1), new definition of mental disorder
insert
mental disorder—see the Mental Health (Treatment and Care) Act 1994, section 9.
Note The Mental Health (Treatment and Care) Act 1994, s 9 defines mental disorder as a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion, other than a mental illness.
[1.2]Section 530 (1), definition of mental dysfunction
omit
[1.3]Section 530 (1), definition of mental illness
substitute
mental illness—see the Mental Health (Treatment and Care) Act 1994, section 10.
NoteThe Mental Health (Treatment and Care) Act 1994, s 10 defines mental illness as a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person in 1 or more areas of thought, mood, volition, perception, orientation or memory, and is characterised by—
(a)the presence of at least 1 of the following symptoms:
(i) delusions;
(ii)hallucinations;
(iii) serious disorders of streams of thought;
(iv) serious disorders of thought form;
(v) serious disturbance of mood; or
(b)sustained or repeated irrational behaviour that may be taken to indicate the presence of at least 1 of the symptoms mentioned in par (a).
[1.4]Section 863 (2), example 2
substitute
2 administration of a mental health order or forensic mental health order under the Mental Health (Treatment and Care) Act 1994
Part 1.2Corrections Management Act 2007
[1.5]New section 54A
insert
54ATransfer to mental health facility—transfer direction
(1)This section applies if the director-general has made a direction under section 54 for the transfer of a detainee from a correctional centre to an approved mental health facility or approved community care facility.
(2)The director-general must tell the director-general responsible for the Mental Health (Treatment and Care) Act 1994 in writing about any change in the detainee’s status as a detainee.
Examples
1 the person’s sentence of imprisonment ends
2 the person is released on parole
3 the person is otherwise released from detention
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3)In this section:
approved community care facility—see the Mental Health (Treatment and Care) Act 1994, dictionary.
approved mental health facility—see the Mental Health (Treatment and Care) Act 1994, dictionary.
Part 1.3Crimes Act 1900
[1.6]Section 300 (1), new definition of forensic mental health order
insert
forensic mental health order—see the Mental Health (Treatment and Care) Act 1994, dictionary.
[1.7]Section 301 (1)
omit
that the accused be detained in custody until the ACAT orders otherwise, the court shall
substitute
that the accused be detained in custody for immediate review by the ACAT, the court must
[1.8]Section 301 (2)
omit
shall nominate a term
substitute
must nominate a term (a nominated term)
[1.9]New section 301 (3) and (4)
insert
(3)In nominating a term in relation to an offence, the Supreme Court may, as it considers appropriate, take into account the periods (if any) for which the person has been detained in relation to the offence, before or after the special hearing.
(4)A nominated term in relation to an offence takes effect on the day the Supreme Court nominates the term unless the court—
(a)after taking into account any periods mentioned in subsection (3), nominates an earlier day; or
(b)orders that the term take effect on a later day so as to be served consecutively with (or partly concurrently and partly consecutively with) another term nominated for the person under this part or a sentence of imprisonment imposed on the person.
[1.10]Section 302 (1)
omit
that the accused be detained in custody until the ACAT orders otherwise, the court shall
substitute
that the accused be detained in custody for immediate review by the ACAT, the court must
[1.11]Section 302 (2)
omit
shall nominate a term
substitute
must nominate a term (a nominated term)
[1.12]New section 302 (3) and (4)
insert
(3)In nominating a term in relation to an offence, the Supreme Court may, as it considers appropriate, take into account the periods (if any) for which the person has been detained in relation to the offence, before or after the special hearing.
(4)A nominated term in relation to an offence takes effect on the day the Supreme Court nominates the term unless the court—
(a)after taking into account any periods mentioned in subsection (3), nominates an earlier day; or
(b)orders that the term take effect on a later day so as to be served consecutively with (or partly concurrently and partly consecutively with) another term nominated for the person under this part or a sentence of imprisonment imposed on the person.
[1.13]Section 303
omit
shall not order that an accused be detained for a period greater than the term nominated by it under section 301 or 302, as the case may be.
substitute
must not order that an accused be detained for a period greater than the nominated term under section 301 or 302.
[1.14]Section 304 (1)
omit
that the accused be detained in custody until the ACAT orders otherwise, the Magistrates Court shall
substitute
that the accused be detained in custody for immediate review by the ACAT, the Magistrates Court must
[1.15]Section 304 (2)
omit
shall nominate a term
substitute
must nominate a term (a nominated term)
[1.16]New section 304 (3) and (4)
insert
(3)In nominating a term in relation to an offence, the Magistrates Court may, as it considers appropriate, take into account the periods (if any) for which the person has been detained in relation to the offence, before or after the special hearing.
(4)A nominated term in relation to an offence takes effect on the day the Magistrates Court nominates the term unless the court—
(a)after taking into account any periods mentioned in subsection (3), nominates an earlier day; or
(b)orders that the term take effect on a later day so as to be served consecutively with (or partly concurrently and partly consecutively with) another term nominated for the person under this part or a sentence of imprisonment imposed on the person.
[1.17]Section 305 (1)
omit
that the accused be detained in custody until the ACAT orders otherwise, the Magistrates Court shall
substitute
that the accused be detained in custody for immediate review by the ACAT, the Magistrates Court must
[1.18]Section 305 (2)
omit
shall nominate a term
substitute
must nominate a term (a nominated term)
[1.19]New section 305 (3) and (4)
insert
(3)In nominating a term in relation to an offence, the Magistrates Court may, as it considers appropriate, take into account the periods (if any) for which the person has been detained in relation to the offence, before or after the special hearing.
(4)A nominated term in relation to an offence takes effect on the day the Magistrates Court nominates the term unless the court—
(a)after taking into account any periods mentioned in subsection (3), nominates an earlier day; or
(b)orders that the term take effect on a later day so as to be served consecutively with (or partly concurrently and partly consecutively with) another term nominated for the person under this part or a sentence of imprisonment imposed on the person.
[1.20]Section 306
omit
shall not order that an accused be detained for a period greater than the term nominated by it
substitute
must not order that an accused be detained for a period greater than the nominated term
[1.21]Section 309 (1) (a) and (b) (i)
omit
approved health facility
substitute
approved mental health facility
[1.22]Section 309 (1) (b) (ii)
omit
approved health facility or
[1.23]Section 309 (3)
before paragraph (a), omit
approved health facility
substitute
approved mental health facility
[1.24]Section 309 (3) (a)
omit
approved health facility or, if detained for care, an approved mental health
[1.25]Section 309 (3) (b)
omit
approved health facility or approved mental health
[1.26]Section 309 (4), definition of approved health facility
omit
[1.27]Section 309 (4), definition of approved mental health facility
substitute
approved mental health facility—see the Mental Health (Treatment and Care) Act 1994, dictionary.
[1.28]Section 318 (2)
substitute
(2)The Supreme Court may make the orders that it considers appropriate, including—
(a)that the accused be detained in custody for immediate review by the ACAT under the Mental Health (Treatment and Care) Act 1994, section 72; or
(b)that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health (Treatment and Care) Act 1994.
[1.29]Section 319 (2) and (3)
substitute
(2)The Supreme Court must—
(a)order that the accused be detained in custody for immediate review by the ACAT under the Mental Health (Treatment and Care) Act 1994, section 72; or
(b)if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health (Treatment and Care) Act 1994.
[1.30]Section 323 (3)
substitute
(3)The Supreme Court may make the orders that it considers appropriate, including—
(a)that the accused be detained in custody for immediate review by the ACAT under the Mental Health (Treatment and Care) Act 1994, section 72; or
(b)that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health (Treatment and Care) Act 1994.
[1.31]Section 324
substitute
Supreme Court orders following special verdict of not guilty because of mental impairment—serious offence
(1)This section applies if an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered by the Supreme Court.
(2)The Supreme Court must—
(a)order that the accused be detained in custody for immediate review by the ACAT under the Mental Health (Treatment and Care) Act 1994, section 72; or
(b)if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health (Treatment and Care) Act 1994.
[1.32]Section 328 (3)
substitute
(3)The orders that the Magistrates Court may make under subsections (1) and (2) include—
(a)that the accused be detained in custody for immediate review by the ACAT under the Mental Health (Treatment and Care) Act 1994, section 72; or
(b)that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health (Treatment and Care) Act 1994.
[1.33]Section 329
substitute
Magistrates Court orders following finding of not guilty because of mental impairment—serious offence
(1)This section applies if an accused is charged and the Magistrates Court makes a finding of not guilty because of mental impairment.
(2)The Magistrates Court must—
(a)order that the accused be detained in custody for immediate review by the ACAT under the Mental Health (Treatment and Care) Act 1994, section 72; or
(b)if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health (Treatment and Care) Act 1994.
[1.34]Further amendments, mentions of mental health order
after
mental health order
insert
or forensic mental health order
in
· section 315D
· section 331
· section 334
· section 335
Part 1.4Crimes (Child Sex Offenders) Regulation 2005
[1.35]Section 12 (1) (d) (ii)
substitute
(ii)for an offender released from detention under the Mental Health (Treatment and Care) Act 1994, chapter 5 (Mental health orders), chapter 6 (Emergency detention) or part 7.1 (Forensic mental health orders)—the ACAT; or
Part 1.5Crimes (Sentence Administration) Act 2005
[1.36]New section 321AA
before section 321A, insert
321AADirector-general to give information—detainees etc subject to forensic mental health orders
(1)This section applies if a forensic mental health order is in force in relation to a detainee or a person serving a community-based sentence.
(2)The director-general must tell the director-general responsible for the Mental Health (Treatment and Care) Act 1994 in writing if the person stops being a detainee or a person serving a community‑based sentence.
(3)In this section:
community-based sentence—see section 264.
detainee—see the Corrections Management Act 2007, section 6.
Part 1.6Criminal Code 2002
[1.37]Section 712A (5), definition of childrens proceeding, new paragraph (h)
insert
(h)either of the following orders is or was in force under the Mental Health (Treatment and Care) Act 1994 for the child or young person:
(i)a forensic mental health order;
(ii)a forensic community care order.
Part 1.7Guardianship and Management of Property Act 1991
[1.38]Section 7 (3) (e)
omit
(other than a prescribed medical procedure);
substitute
(other than a prescribed medical procedure or medical treatment mentioned in paragraph (ea));
[1.39]New section 7 (3) (ea)
insert
(ea)to give, for the person, a consent required for medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994 (other than a prescribed medical procedure);
NoteFor provisions relevant to a guardian with power under this paragraph, see s 70A (Restrictions on consent by guardian to mental health treatment, care or support).
[1.40]Section 19 heading
substitute
Review of guardians and managers
[1.41]Section 19 (2)
omit
consider
substitute
review
[1.42]New section 19 (2A)
insert
(2A)The ACAT must review an order appointing a guardian for a person if—
(a)the guardian tells the ACAT under section 70A (6) that a consent to treatment is not to be renewed; or
(b)an advance consent direction made by the person is given to the ACAT under the Mental Health (Treatment and Care) Act 1994, section 27 (5).
[1.43]Section 32A, definition of health professional
substitute
health professional means—
(a)in relation to medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994—a mental health professional under that Act; and
(b)in any other case—a doctor or dentist.
[1.44]Section 32A, definition of medical treatment, paragraph (a) (iii)
substitute
(iii)a series of procedures or courses of treatment; and
(iv)medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994; but
[1.45]Section 32A, definition of protected person, paragraph (c)
substitute
(c)for whom the ACAT has not appointed a guardian under this Act with authority to—
(i)give consent to medical treatment not involving consent for treatment, care or support under the Mental Health (Treatment and Care) Act 1994; or
(ii)give consent for medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994.
[1.46]New section 32D (1) (c)
insert
(c)the person does not have an advance consent direction under the Mental Health (Treatment and Care) Act 1994 authorising the treatment.
[1.47]New section 32D (4)
insert
(4)However, for medical treatment involving consent for treatment, care or support under the Mental Health (Treatment and Care) Act 1994, the health professional may rely on the consent to provide the treatment care or support only for the period allowed under section 32JA.
NoteSpecial requirements apply for notifying the ACAT if the consent involved mental health treatment, care or support (see s 32JA).
[1.48]Section 32J (1) (a)
after
protected person
insert
(other than medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994)
[1.49]New section 32JA
insert
32JANotice and duration of consent—mental health treatment, care or support
(1)This section applies if consent has been given under this part for medical treatment for a protected person that involves treatment, care or support under the Mental Health (Treatment and Care) Act 1994.
(2)A health professional who is giving the treatment, care or support must within 7 days after the consent is given—
(a)tell the public advocate in writing that treatment, care or support is being given to the protected person in accordance with the consent; and
(b)give the public advocate a copy of the plan for the proposed treatment, care or support.
(3)The health professional may rely on the consent for 21 days after it is given (the initial consent period).
(4)If treatment, care or support in accordance with the consent is likely to be required for longer than the initial consent period, the health professional must, before the end of that period—
(a)apply to the ACAT for approval to continue providing treatment, care or support in accordance with the consent; and
(b)unless the health professional believes on reasonable grounds that someone else has applied to the ACAT for an order appointing a guardian for the person—apply to the ACAT under part 2 for an order appointing a guardian for the person.
(5)The ACAT may give approval for the health professional to continue to provide treatment, care or support in accordance with the consent for a stated period of not longer than 8 weeks after the end of the initial consent period.
(6)The ACAT must tell the public advocate of any approval given under subsection (5).
[1.50]Section 70 (1)
omit
(other than treatment for mental illness, electroconvulsive therapy or psychiatric surgery)
substitute
(other than electroconvulsive therapy or psychiatric surgery)
[1.51]Section 70 (1), note
omit
[1.52]Section 70 (2)
omit
the consent
substitute
an order for consent under subsection (1)
[1.53]New section 70A
insert
70ARestrictions on consent by guardian to mental health treatment, care or support
(1)A guardian who has power to give for a person a consent required for medical treatment involving treatment, care or support under the Mental Health (Treatment and Care) Act 1994 may consent to that treatment only if the person—
(a)does not have decision-making capacity under that Act; and
(b)does not have an advance consent direction under that Act authorising the treatment; and
(c)expresses willingness to receive the treatment.
(2)A consent must be in writing.
NoteIf a form is approved under s 75A for this provision, the form must be used.
(3)A consent must be for a stated period, of not longer than 6 months, but can be renewed (and further renewed) for another stated period of not longer than 6 months.
(4)In considering the stated period necessary for a consent to treatment, a health professional who is giving the treatment must take into account—
(a)whether, and when, the person is likely to regain decision‑making capacity under the Mental Health (Treatment and Care) Act 1994; and
(b)the likely duration of the treatment, care or support required; and
(c)the content of any advance consent direction in force for the person.
(5)The health professional must tell the ACAT and the public advocate in writing about a consent, including the stated period.
NoteIf a form is approved under s 75A for this provision, the form must be used.
(6)If a consent is not renewed at the end of its stated period, the health professional must tell the ACAT in writing.
(7)The ACAT—
(a)must, on application, review a consent; and
(b)may, at any time on its own initiative, review a consent.
(8)A consent ends before the end of its stated period if—
(a)the ACAT directs that the consent be withdrawn; or
(b)subsection (1) (a), (b) or (c) no longer apply to the person.
NoteThe chief psychiatrist or another relevant person may apply for a mental health order in relation to the person (see Mental Health (Treatment and Care) Act 1994, s 36O).
[1.54]Dictionary, definition of mental illness
omit
dictionary
substitute
section 10
[1.55]Dictionary, definition of prescribed medical procedure, paragraph (f)
omit
treatment for mental illness,
Part 1.8Mental Health (Treatment and Care) Regulation 2003
[1.56]Section 6 (a)
substitute
(a)the Mental Health Act 2007 (NSW);
[1.57]Section 7 (a)
omit
chapter 4, part 2 (Involuntary admission to hospitals), division 1 (Admission to and detention in hospitals);
substitute
chapter 3, part 2 (Involuntary detention and treatment in mental health facilities);
[1.58]Section 7 (b) and (c)
substitute
(b)a person who is an involuntary patient as defined in the NSW Act, section 4;
[1.59]Section 7 (f) (i)
omit
Sentencing Act 1986 (Vic)
substitute
Sentencing Act 1991 (Vic)
[1.60]Section 9
substitute
Interstate non-custodial orders—Act, s 48D (4)
For the Act, chapter 15, an order under the NSW Act, section 51 (Community treatment orders) is an interstate non-custodial order.
[1.61]Dictionary, definition of interstate agreement, new note
after paragraph (d), insert
NoteThe NSW Act, sch 6 (Savings, transitional and other provisions) provides for the continued force and effect of the NSW agreement.
[1.62]Dictionary, definition of NSW Act
substitute
NSW Act means the Mental Health Act 2007 (NSW).
Part 1.9Powers of Attorney Act 2006
[1.63]Section 12, new example
insert
5 consenting to treatment for a mental illness (other than electroconvulsive therapy or psychiatric surgery) necessary for the principal’s wellbeing
[1.64]Section 16 (1), new example
insert
4 if I do not have capacity to make a decision that needs to be made about my treatment, care or support for a mental illness
[1.65]Section 37 (1) (e)
omit
[1.66]Section 37 (2), definition of mental illness
omit
[1.67]New section 46A
insert
46ARestrictions on consent by attorney to mental health treatment, care or support
(1)An attorney under an enduring power of attorney may consent to treatment for mental illness (other than electroconvulsive therapy or psychiatric surgery) only if the principal—
(a)does not have decision-making capacity; and
(b)does not have an advance consent direction under the Mental Health (Treatment and Care) Act 1994 authorising the treatment; and
(c)expresses willingness to receive the treatment.
(2)A consent must be in writing.
NoteIf a form is approved under s 96 for this provision, the form must be used.
(3)A consent must be for a stated period, of not longer than 6 months, but can be renewed (and further renewed) for another stated period of not longer than 6 months.
(4)In considering the stated period necessary for a consent to treatment, a health professional who is giving the treatment must take into account—
(a)whether, and when, the principal is likely to regain decision‑making capacity; and
(b)the likely duration of the treatment required; and
(c)the content of any advance consent direction in force for the principal.
(5)The health professional must tell the ACAT and the public advocate in writing about a consent, including the stated period.
NoteIf a form is approved under s 96 for this provision, the form must be used.
(6)If a consent is not renewed at the end of its stated period, the health professional must tell the ACAT in writing.
(7)The ACAT—
(a)must, on application, review a consent; and
(b)may, at any time on its own initiative, review a consent.
(8)A consent ends before the end of its stated period if—
(a)the ACAT directs that the consent be withdrawn; or
(b)subsection (1) (a), (b) or (c) no longer apply to the principal.
NoteThe chief psychiatrist or another relevant person may apply for a mental health order in relation to the principal (see Mental Health (Treatment and Care) Act 1994, s 36O).
(9)In this section:
decision-making capacity—see the Mental Health (Treatment and Care) Act 1994, section 7.
mental illness—see the Mental Health (Treatment and Care) Act 1994, section 10.
[1.68]Dictionary, definition of health care facility
substitute
health care facility means a hospital, mental health facility, residential aged care facility or residential disability care facility.
[1.69]Dictionary, new definition of mental health facility
insert
mental health facility—see the Mental Health (Treatment and Care) Act 1994, dictionary.
Part 1.10Public Advocate Act 2005
[1.70]Dictionary, new definition of mental disorder
insert
mental disorder—see the Mental Health (Treatment and Care) Act 1994, section 9.
[1.71]Dictionary, definition of mental dysfunction
omit
[1.72]Dictionary, definition of mental illness
substitute
mental illness—see the Mental Health (Treatment and Care) Act 1994, section 10.
Part 1.11Victims of Crime Act 1994
[1.73]New section 11 (ba)
insert
(ba)to advocate for the interests of affected people under the Mental Health (Treatment and Care) Act 1994;
Endnotes
Presentation speech
Presentation speech made in the Legislative Assembly on 15 May 2014.
Notification
Notified under the Legislation Act on 12 November 2014.
Republications of amended laws
For the latest republication of amended laws, see certify that the above is a true copy of the Mental Health (Treatment and Care) Amendment Bill 2014, which was passed by the Legislative Assembly on 30 October 2014.
Clerk of the Legislative Assembly
© Australian Capital Territory 2014
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