This Bill amends the Mental Health and Related Services Act 1998. 

The purpose of the Bill is to: 
·	Clarify and improve provisions regarding the rights, roles and responsibilities of guardians and carers including notification requirements, information access and providing a right of appeal for carers and representatives where information is withheld;
·	Improve the application of the Act in rural centres and remote areas of the Territory;
·	Clarify police powers and ensure consistency throughout the Act; 
·	Refine powers of the Court to reduce confusion, improve application of the current provisions, introduce a mechanism to divert individuals to voluntary treatment where appropriate and improve alignment with other parts of the legislation; 
·	Amend timelines for review throughout the legislation to ensure consistency and alignment with clinical and operational realities.
·	Improve the administration and application of Community Management Orders; 
·	Improve the application of existing provisions relating to the Mental Health Review Tribunal, including notification and contempt of Tribunal provisions;
·	Improve and strengthen the functioning of the Community Visitor Program;
·	Improve the general administration of the Act and to clarify the extent of authority held by particular statutory functions;
·	Improve corresponding law provisions to enable cross border agreements and arrangements with other jurisdictions for the planned and unplanned transfer of individuals subject to mental health legislation across jurisdictional borders; 
·	Clarify processes for the admission of prisoners to Approved Treatment Facilities, ensure alignment with other provisions in the Act and clarify administrative processes; and
·	Improve the operation of financial protection order provisions.

NOTES ON CLAUSES

Clause 1	Short title

The Act may be cited as the Mental Health and Related Services Amendment Act 2007.

Clause 2	Commencement

The Act comes into operation on the date fixed by the Administrator by notice in the Gazette.

Clause 3	Act amended

This clause provides for the amendment of the Mental Health and Related Services Act 1998.

Clause 4	Amendment of section 3 (Objects)

Amends section 3(k) to remove reference to hearing appeals, which will now be called an “application for review of a decision”. 

Clause 5	Amendment of section 4 (Definitions)

	Amends section 4 to remove definition of ‘primary care provider’ and replace it with ‘primary carer’ and relocate the definition to section 7A.  

Includes new definitions for ‘nominated next of kin’ and ‘senior next of kin’ and introduces or refines definitions for a number of existing terms either not previously or inadequately defined such as ‘adult guardian’, ‘ambulance officer’, ‘approved ambulance service’, ‘community’, ‘community management order’, ‘principal community visitor’, ‘community visitor’, ‘community visitor panel’, ‘special community visitors panel’, ‘criteria’, ‘financial protection order’, ‘psychiatric case manager’, ‘interim community management order’ and ‘voluntary treatment plan’.

Clause 6	Amendment of section 6 (Mental Illness)

Amends section 6(2) to remove all words following “clinical standards”.

Clause 7	New section 7A (Definition of primary carer)

Amends to include a clear and complete definition of ‘primary carer’. This section replaces the previous definition of ‘primary care provider’ in section 4.

Clause 8	Amendment to section 9 (Principles relating to provision of treatment and care)

Amends section 9(n) to omit the words “where the person is from a non-English speaking background” to ensure that the requirements of the section are applied to all people, irrespective of whether English is a first or second language.

Clause 9	Amendment to section 12 (Principles relating to rights of carers)

Amends section to include a reference to families in the title and a new subsection 12(c), which adds consultation and involvement with families in treatment and care where practicable and appropriate. 

Clause 10	Amendment to section 13 (Principles relating to rights and conditions in approved treatment facilities)

Amends section 13(e) by omitting the words ‘this Act’ and replacing them with a specific reference to section 92 (access to records).

Clause 11	Amendment of Part 3, heading “Criteria for Involuntary Admission”

Amends Part 3 heading by inserting a reference to treatment to more appropriately cover the content of the Part, which includes involuntary treatment in the community.

Clause 12	Amendment to section 14 (Involuntary admission on grounds of mental illness)

Amends section 14(b)(ii) to remove the reference to ‘imminent harm” and replace with “serious harm”.

Clause 13	Amendment to section 15 (Involuntary admission on grounds of mental disturbance)

Amends section 15(c)(i) to remove the reference to ‘imminent harm” and replace with “serious harm”.

Clause 14	Amendment to section 16 (Involuntary treatment in the community)

	Amends section 16(b)(i) and (ii) to insert reference to ‘care’ and remove the reference to ‘imminent harm” and replace with “serious harm”.

Clause 15	Amendment to section 17 (Powers and functions of Secretary)

	Amends section 17 heading, 17(1) and 17(2) and (3) by replacing the term ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

Amends section 17(1)(a) to replace the word ‘oversight’ with ‘oversee’.

Amends section 17(3) to make it clear that the CEO does not have the authority to give directions to the Principal Community Visitor, a Community Visitor, or a member of the Mental Health Review Tribunal, a community visitors panel or a special community visitors panel.

Clause 16	Amendment to section 18 (Approved procedures)

	Amends section 18(1) to make it clear that the CEO does not have the authority to approve the procedures of the Mental Health Review Tribunal or the Community Visitors Program.

	Amends section 18(1) to replace reference to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

Clause 17	Repeals and substitutes section 19 (Delegation)

	Amends section 19 to simplify the provision indicate who may delegate powers and functions under the Act, confirm a delegation is to be in writing and remove provisions already covered in 46(a) of the Interpretations Act.

Clause 18	Persons-in-charge of approved treatment facilities and agencies

	Amends section 21(1) to replace reference to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

Amends section 21(2) and adds a new section 21(3) to clarify the person in charge of an Approved Treatment Agency is responsible for a persons ‘treatment and care’ where treatment occurs in the community and the person in charge of an approved treatment facility is responsible for a persons ‘care and welfare’ where a person is admitted to an Approved Treatment Facility.  

Clause 19	Amendment to section 22 (Authorised psychiatric practitioners)

	Amends section 22(1) to replace reference to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

Amends section 22 to include a discretionary provision for the CEO appoint suitably qualified and experienced medical practitioners who are not psychiatrists or psychiatric registrars as authorised psychiatric practitioners and includes a new requirement for completion of an approved training and orientation course before appointment as an authorised psychiatric practitioner.

Clause 20	Amendment to section 23 (Designated mental health practitioners)

Amends section 23 to make appointments as a designated mental health practitioner portable between approved treatment agencies and approved treatment facilities. 
	
	Amends section 23(1) and (2) to replaces references to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

New section 2A provides the CEO with the discretion to appoint an employee of the Department of Health and Community Services who is not employed by Mental Health Services at an approved treatment agency or facility to be a designated mental health practitioner.

Clause 21	Amendment of section 25 (Voluntary admission)

	Amends section 25(4) to extend the timeframe for examination by an authorised psychiatric practitioner to 72 hours. 

New section 25(4a) to allow for examination by an authorised psychiatric practitioner to be conducted via video conferencing or telephone where face to face contact is not practicable.

	Amends section 25(9) to relabel appeal provisions as an ‘application for review.’ 

Clause 22	Repeal and substitution of section 26 (Admission of persons under 18 as voluntary patients)

	Amends section 26 to:

Provide for a young person’s parent or guardian to be notified of the young person’s voluntary admission unless the practitioner believes it is not in the young person’s best interests to do so.  This amendment also clarifies requirement to notify ‘a’ parent or guardian rather than both. 

Provide for notification to the Mental Health Review Tribunal where a decision is made not to notify a person’s parent or adult guardian.

Include a requirement for the practitioner to make a record of notification decisions in accordance with approved procedures.
	
Includes a requirement to notify an authorised person where maltreatment is suspected. 

Include definitions of ‘authorised person’ and ‘practitioner’. 

Clause 23	Amendment of section 27 (Admission of persons under guardianship as voluntary patients)

Amends section 27 to remove reference to ‘an appeal to the Tribunal’ and replace it with ‘apply to the Tribunal for a review of the decision’.

Clause 24	Amendment of section 28 (Notification of admission)

Amends 28(a) to replace reference to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.
Amends section 28 to extend the time frame for notification of voluntary admission from three months to six months to align the section with the period for review by the Mental Health Review Tribunal in section 122. 

Clause 25	Amendment of section 30 (Detention for 6 hours)

	Amends section 30 heading to ‘Detention by medical practitioner or nurse’ to provide clarity regarding the application of this provision.

Amends section 30(3) and (4) to add a reference to both section 61 (mechanical restraint) and 62 (seclusion). 

Clause 26	Amendment to section 31 (Powers of ambulance officers to detain for 6 hours)

	Amends section 31 heading to ‘Detention by ambulance officer’ to align with revised heading for section 30.

Amends section 31(3)(b) to substitute the word ‘deliver’ with the word ‘send’ to remove the implication that the approved form must be given to an authorised psychiatric practitioner in person. 

New subsection 31(4) to provide for circumstances where there are no authorised psychiatric practitioners at the hospital and allows an approved form required under section 31(3)(b) to be sent via facsimile or email.

Clause 27	Amendment of section 32 (Request for assessment)

Amends 32(2) to insert a reference to “health” within the provision.

Amends the wording of section 32(5) to provide greater clarity. 

Clause 28	New section 32A (Apprehension by police)

Amends to move the current section 163 to a new section 32A and restructure the provision in order to provide greater clarity, clarify that once apprehended a person must be taken to a practitioner by police as soon as practicable, to ensure the person is informed of the reason for their apprehension and to express police powers where they are predominantly applied, at entry to the mental health service or where an individual has left an approved treatment facility without medical approval and police assistance is required to return them to the facility.

Clause 29	Amendment of section 34 (Recommendation for psychiatric examination)

	Amends 34(1) by omitting “he or she” and replacing with “the practitioner”.

Amends 34(2) to (4) to make it clear that assistance can be sought and reasonable force can be used to control and bring a person to an approved treatment facility and that if it is not possible to bring a person to an approved treatment facility immediately, to hold the person at a hospital or another safe place until it is practicable to do so. 

Amends 34(3)(c)(i) to remove the reference to ‘imminent harm” and replace with “serious harm”.

	Amends 34(3)(d) to extend the current timeframe up to 24 hours to allow sufficient time for the person to be appropriately examined where circumstances make a more immediate assessment difficult (e.g. where a person is heavily sedated or intoxicated).

	Amends 34(5) and 34(6) to allow for a person who has made a recommendation for psychiatric examination to revoke his or her recommendation if satisfied that the criteria for involuntary admission are no longer fulfilled. 

Amendment to provide for a report to be made to the Tribunal if this recommendation is revoked. 

New subsection 34(7) provides for the ‘authorised person’ to use reasonable force and assistance and to enter private premises or any other private place where they reasonably believe the person may be found in carrying out powers under 34(3).

Clause 30	Repeal and substitution of section 37 (Assessment warrant)

New sections 37(1), (2), (3), (4) and (5) provide for a practitioner to apply to the Tribunal for a warrant to apprehend a person and allow for the application and the warrant to be communicated in writing or by telephone, fax or other forms of electronic communication. These provisions also indicate grounds on which an application may be made. 

New section 37(6) requires that the Tribunal send the warrant to the recipient within 7 days of it being issued.

New sections 37(7) and 37(8) allow for a copy of the warrant to have the same effect as the warrant and authorises a practitioner to apprehend and control the person and to conduct an assessment of the person.  

New section 37(9) outlines police powers when executing a warrant under this section which are in line with the revised 34(3)(a) and the current section 163. 

New section 37(10) giving an authorised psychiatric practitioner, designated mental health practitioner or a member of the police force the power to apprehend a person if he or she believes, on reasonable grounds, that a warrant is in existence.  

New section 37(11) requires that the practitioner or police officer inform the person that they believe a warrant has been issued and that they are authorised to apprehend the person under that warrant. The practitioner or police officer must then take steps to verify a warrant has been issued and to make arrangements for an assessment or to release the person. 

New section 37(12) allows for the Tribunal to be comprised of the President only for the purposes of this section.

New section 37(13) provides for the practitioner or police officer to use reasonable force and assistance and to enter private premises or any other private place where they reasonably believe the person may be found in carrying out powers under 34(3).

New section 37(14) provides a definition of ‘practitioner’ for this section.

Clause 31	Amendment of section 39 (Involuntary admission on grounds of mental illness)

	Amends section 39(1)(b) and 39(3)(a) to extend maximum admission timelines before review by the Tribunal from 7 days to 14 days.  This will ensure acutely unwell individuals will not be compelled to appear before the Tribunal (which sits once a week) within a few days of admission.  The individuals right to make an application for review at any time within the 14-day period has been retained and the Tribunal will continue to sit weekly.

Amends section 39(5) to provide for examination by either videoconference, or where this is unavailable, by telephone, where face-to-face examination is not practicable.
Clause 32	Amendment of section 40 (On-going examinations)

	Amends section 40(3) and inserts a new section 40(4) to make it clear that an authorised psychiatric practitioner has the power to discharge a person where satisfied that the person no longer meets the criteria for involuntary admission, despite any order made by the Mental Health Review Tribunal. This amendment recognises the decision to revoke an order as a clinical one and is consistent with the principal of the ‘least restrictive alternative’ applied throughout the Act.

Clause 33	Repeal and substitution of section 41 (Notification of admission)

	Amends the title of this section to read ‘Notification on the grounds of mental illness’ to provide clarity on the provisions purpose.

Amends section 41 (1) to clarify notification must be provided ‘no later than one day after’ a person is detained at an approved facility.

Amends section 41 to require notification of admission be provided to the person, the person’s adult guardian and a legal practitioner acting or prepared to act for the person.

	New sections 41(2), (3), (4) and (5) make provision for circumstances where a practitioner decides not to notify a person’s primary carer, and requires they provide a written report to the Tribunal of the decision, including the reason for the decision.

	New section 41(6) requires a practitioner to make a record of notification under this section in accordance with approved procedures.

	New section 41(7) provides a definition of practitioner for this section.

Clause 34	Repeal and substitution of sections 42 and 43.

42	Detention following involuntary admission on grounds of mental disturbance
43	Notification of admission on the grounds of mental disturbance

	Amends section 42(1) and (2), restructuring these sections to provide greater clarity.

Amends section 42(2) to correct a drafting error, replacing the words “mental disturbance” with “mental illness.”

	New section 42(3) provides clarity regarding requirements for examination by two authorised psychiatric practitioners.

New subsection 42(4) to provide for examination by either video conference, or where this is unavailable, by telephone, where face to face examination is not practicable. This change is required to ensure consistency with section 39(5).

	Amends section 43 (1) to clarify notification must be provided ‘no later than one day after’ a person is detained at an approved facility

Amends section 43 to require notification of admission be provided to the person, the person’s adult guardian and a legal practitioner acting or prepared to act for the person.

New sections 43(2), (3), (4) and (5) make provision for circumstances where a practitioner decides not to notify a person’s primary carer, and requires they provide a written report to the Tribunal of the decision, including the reason for the decision.

	New section 43(6) requires a practitioner to make a record of notification under this section in accordance with approved procedures.

	New section 43(7) provides a definition of ‘practitioner’ for this section.

Clause 35	 Amendment of section 44 (Review of admission)
Amends section 44 to remove the current 44(2)(a) and 44(3) and insert new sub clauses 2A, 2B and 3 to clarify the outcome of the assessment process where the person continues to meet the criteria for involuntary admission on the grounds of mental disturbance.

Amends section 44(4) to change reference from ‘imminent harm’ to ‘serious harm’ to consistency with amendments made elsewhere.

Clause 36	Amendment of section 45 (Interim community management orders)

	Amends section 45(3) to extend an interim community management order from 7 days to 14 days to ensure consistency with other timelines for review by the Tribunal.

	Amends section 45(4) to outline circumstances under which treatment may be administered under an interim community management order.

Clause 37	Amendment of section 46 (Form of interim community management order)

	Amends section 46 to replace “is to be in the approved form and is to specify” with “must be in the approved form and must specify the following:”

Amends section 46(e) to provide for the frequency of attendance at an approved treatment agency under an interim community management order rather than specify exact times and dates.  This will provide greater flexibility on an individual case-by-case basis.

Clause 38	Repeal and substitution of section 47 (Notification of interim community management order)

	New section 47 to require notification be provided to the person, the person’s adult guardian and a legal practitioner acting or prepared to act for the person. 

	New sections 47(2), (3), (4) and (5) make provision for circumstances where a practitioner decides not to notify a person’s primary carer, and requires they provide a written report to the Tribunal of the decision, including the reason for the decision.

	New section 47(6) requires a practitioner to make a record of notification under this section in accordance with approved procedures.

Clause 39	Amendment of section 49 (Form of community management order)

	Amends section 49 to ensure consistency with the language used in section 46 by omitting “is to be in writing and is to specify” and replacing it with “must be in writing and must specify the following:”

Amends section 49(e) to provide for the frequency of attendance at an approved treatment agency under a community management order rather than specify exact times and dates.  This will provide greater flexibility on an individual case-by-case basis. These changes are consistent with changes at section 46(e).

Clause 40	Repeal and substitution of sections 50 & 51.

50	Review of community management order by authorised psychiatric practitioner
50A	Notification of revocation of community management order.
51	Appointment of psychiatric case manager

	New section 50(1), (2) and (3) provides that an authorised psychiatric practitioner must examine a person subject to a community management order at the frequency specified in the order and must regularly review the order while it is in force.  If it is not practicable for the examination to be conducted face-to-face, it may by conducted via interactive videoconferencing or, where this is not available, via telephone.

New section 50(3) provides for an authorised psychiatric practitioner to revoke the order if the person no longer fills the criteria.

These changes will make community management orders easier to apply in rural and remote areas and more applicable to individual circumstances whilst also establishing minimum requirements for review.

New subsection 50(4) allows an authorised psychiatric practitioner to apply, to vary a community management order, where he or she is satisfied that such a variation is required.  The Tribunal may then consider the request under section 123.  This change is required as there is currently no clear mechanism for requesting variation of a community management order.

New section 50A (1) to clarify notification must be provided ‘no later than one day after’ a community management order for a person is revoked and requires notification to be provided to the Tribunal, the person, the person’s adult guardian, a legal practitioner acting or prepared to act for the person, and the principal community visitor. 

New sections 50A(2) to (5) make provision for circumstances where a practitioner decides not to notify a person’s primary carer, and requires they provide a written report to the Tribunal of the decision, including the reason for the decision.

New section 50A(6) requires a practitioner to make a record of decisions regarding notification under this section.

New section 51 requires the authorised psychiatric practitioner who is responsible for reviewing the community management order rather than the person in charge of the approved treatment agency to appoint a psychiatric case manager for the person under the order. 

New subsection 51(2) and (3) indicate that a psychiatric case manager must be a medical practitioner or designated mental health practitioner who is:

·	an employee of an approved treatment agency; or 

·	an employee of the agency administering this Act where the employee consents, it is not practicable to appoint an employee of the approved treatment agency and the appointment complies  with approved procedures;

New subsection 51(2)(b) gives the authorised psychiatric practitioner the discretion to appoint ‘any other medical officer’ (i.e. a general practitioner) to be a psychiatric case manager with their consent and in accordance with approved procedures.

New section 51(4) requires a psychiatric case manager to monitor the progress of a person subject to a community management order and provide reports to the responsible authorised psychiatric practitioner at least once every six weeks.  This change is required to ensure that the authorised psychiatric practitioner is kept informed of the person’s condition and any need to vary the order and is consistent with Amendments to section 50. 

Clause 41	Amendment of section 52 (Discharge report and consideration of report by Tribunal)

Amends section 52(1) to replace the words “the person in charge of an approved treatment agency” with “an authorised psychiatric practitioner”. This amendment recognises that this report is a ‘clinical’ rather than ‘administrative’ report and it is more appropriate that a person’s treating authorised psychiatric practitioner provides such a report. 
	
Clause 42	Amendment of section 53 (Suspension of community management order)

Amends section 53 to replace all references to “authority” with “order”.  

Amends 53(2)(b) to replace reference to “imminent harm” with “serious harm” and to align the provision with other amendments.

Omits sections 53(3), (4) and (5) and substitutes new provisions which require a practitioner to “take reasonable steps” to inform the person and the person’s representative of the suspension and to conduct an assessment of the person. Allows assessment under section 53(3) to be conducted via videoconferencing or, where this is not available, by telephone, where it is not practicable to conduct a face-to-face examination or assessment. 

New section 53(5) allows for assessment to be based on information provided by the person’s psychiatric case manager where it is not possible to conduct an assessment by any other means.

New section 53(6) and (7), provide that after conducting an assessment, the authorised psychiatric practitioner may admit the person to an approved treatment facility or treat the person and, where appropriate, re-activate the order within 24 hours.  Where the order is not re-activated within 24 hours provide a report to the Tribunal.

New section 53(7) provides for a community management order to be ‘re-activated’ upon discharge from hospital irrespective of the duration of the admission unless it has been varied by the Tribunal or a new order is made.

New section 53(8) clarifies that in facilitating an admission under 53(5)(a) a practitioner is authorised to use powers provided under 34(3) if required.

References to ‘revoking suspension of an order’ have been replaced with the term ‘re-activate’, which has been defined in a new subsection 53(9).  

Clause 43	Amendment of section 54 (Treatment after voluntary admission)

Amends section 54(5) to replace reference to “imminent harm” with “serious harm” and to provide clarity regarding these provisions.

Clause 44	Amendment of section 55 (Treatment after involuntary admission)

Amends section 55(2) to replace reference to “imminent harm” with “serious harm” and provide clarity regarding these provisions.

Clause 45	Amendment of section 61 (Mechanical means of bodily restraint)

Amends section 61 heading by removing words “means of bodily”

Amends section 61(2) to provide clarity regarding the application of this provision which is confined to individuals being assessed or treated under the provisions of this Act.

Amends section 61 (3) (c) to include a new subsection (d) to allow use of restraint to prevent person from absconding from the facility where appropriate.

Omits section 61 (6) and substitutes new 61 (6) (a) & (b) to clarify that where the senior nurse on duty determines the form of restraint and duration this must be reviewed and if necessary redetermined by an authorised psychiatric practitioner as soon as practicable after it has been approved.

Amends section 61(8)(c) and 61(12)(f) to remove reference to subsection (9), which has been deleted.

Amends section 61 to delete sections 61(8)(d) and 61(9) to remove confusion regarding timeframes for review and remove the discretion to examine someone less frequently than every four hours.

Amends section 61(10) to reduce the maximum timeframe for mechanical restraint of a voluntary patient from 12 hours to a continuous period of 6 hours. These changes are in line with the limitations on detaining a voluntary patient set out under section 30. 

Insert ‘and’ at the end of section 61 (12) (a) to (d).

Amend section 61 (12) by omitting the phrase ‘applied; and’ and substituting the word ‘applied’.

Omit section 61 (12) (f).

New section 61(15) requires that the person in charge of an approved treatment facility notify a person’s adult guardian regarding the use of mechanical restraint.

Clause 46	Amendment of section 62 (Seclusion of patients)

Deletes section 62(1) definition and inserts new section 62(16) to provide a clearer more contemporary definition of what constitutes seclusion for the purposes of this section. 

Amends section 62(2) to specify seclusion must only be applied where a person is being assessed or receiving treatment under this Act and must be undertaken in accordance with approved procedures.  

Amends section 62(3) to add the words ‘one or more of’ to indicate any of the criteria in this section may trigger the use of seclusion where no less restrictive method of control is applicable or appropriate.

Amends section 62 (3) (c) to include a new subsection (d) to allow use of seclusion to prevent person from absconding from the facility where appropriate.

Omits section 62 (6) and substitutes new 62 (6) (a) & (b) to clarify that where the senior nurse on duty determines and notes a period of seclusion in a persons case notes this must be reviewed and if necessary redetermined and noted in the persons case notes by an authorised psychiatric practitioner as soon as practicable after it has been approved.

Amends section 62(8)(b) by deleting ‘not longer than 4 hours’ and inserting ‘specified in approved procedures’.

Amends section 62(8)(c) by deleting ‘if a person is kept in seclusion for more than 6 hours and inserting ‘in accordance with approved procedures’.

Deletes section 62(9) to remove any discretion to examine someone less frequently than is required by approved procedures.

Amends section 62(10) to reduce the maximum timeframe for seclusion of voluntary patients from 12 hours to a continuous period of 6 hours.  These changes are in line with the limitations on secluding a voluntary patient set out under section 30. 

Insert ‘and’ at the end of section 62 (12) (a) to (c).

Amend 62 (12) (d) by omitting the phrase ‘seclusion; and’ and substituting ‘seclusion’.

Amends to delete section 62(12)(e) to remove reference to 62(9), which has been deleted.

New section 62(15) requires the person in charge of an approved treatment facility to notify an adult guardian regarding the use of seclusion.

Clause 47	Amendment of section 63 (Non-psychiatric treatment)

Amends section 63(6) to change reference from ‘public guardian’ to ‘adult guardian’ as the adult guardian is the appropriate person in this section.

Clause 48	Amendment of section 64 (Major medical procedure)

Amends section 64(4) to clarify timeframes around notification requirements so that notification must be provided ‘no later than one day after’ the procedure and to insert a requirement to notify the person’s adult guardian in line with similar provisions amended throughout the Bill.

Clause 49	Amendment of section 66 (Electro convulsive therapy)

Amends section 66 to insert a reference to approved procedures to ensure this treatment is not performed unless in accordance with both this section and the approved procedures.

Clause 50	Repeal and substitution of Parts 10 and 11

Part 10 – Powers of the Court

Division One – Assessment and admission of a person

73A	Application of Division

New section 73A, which outlines the application of Division One and provides clarification as to the circumstances under which the Court may dismiss a charge under this division and the issue of consent which is required in order for a charge to be determined summarily.  

74	Pre-assessment advice 

New section 74(1) provides for the Court to request written advice from the Chief Health Officer regarding the availability of resources to assess a person to determine the need for treatment.

New section 74(2) allows the Court to adjourn proceedings to allow preparation of the advice.

New section 74(3) requires the Chief Health Officer to provide written advice that includes whether the assessment will be on an ‘outpatient’ basis and if so advice as to the most appropriate venue, time and conditions for the assessment; or if at an approved treatment facility or approved temporary treatment facility an estimate of the time required for the assessment.

New section 74(4) provides a definition for the term ‘outpatient assessment’.

74A	Assessment order

New section 74A provides for the adjournment of proceedings upon receipt of written advice from the Chief Health Officer under section 74 and to order a person be assessed and a report of the assessment prepared for the Court’s consideration.

New section 74A (1) covers circumstances in which it is practicable to conduct an outpatient assessment and provides for adjournment of the proceedings and an order to be made for an assessment and report to be prepared for the court.

New section 74A (2) provides for adjournment of the proceedings and conveyance to an approved treatment facility for an assessment and report to be prepared where an outpatient assessment is not practicable.

New section 74A (3) clarifies that the period of adjournment must not exceed the estimate of time required for assessment specified in the advice given to the court under section 74 (3) (ii). 

New section 74A(4) requires that an order for assessment at a facility specify who is responsible for conveying the person to the facility and who is responsible for conveying the person back to the court following assessment.

New section 74A (5) makes provision for the Registrar of the Local Court to send a copy of an order to the person-in-charge of the facility as soon as practicable after the order is made and before the person is conveyed to the facility

New sections 74A(6), (7) and (8) outline what a report under section 74A must state, including whether the person meets the criteria for involuntary admission on the grounds of mental illness or mental disturbance, whether an approved treatment facility is available for the admission, the recommended duration of admission and any recommendations for the conveyance of the person to the facility. If the person does not fill the criteria for involuntary admission, the report must indicate whether the person requires other treatment under the Act, including where applicable involuntary treatment in the community.

New section 74A (9) defines the terms ‘outpatient assessment’ and ‘practitioner’.

75	Admission order

New section 75 provides for admission of a person to an approved treatment facility where the Court is satisfied after receiving a report prepared under 74A that a person fulfils the criteria for involuntary admission and resources are available at a specified approved treatment facility to diagnose and treat the person.

Section 75(2) allows the Court to adjourn the proceedings for a specified period for either assessment or for diagnosis and treatment.

New section 75(3) provides for an admission for the duration recommended in the report at 74A(6)(c) or 15 days.

New section 75(4) requires that the order specify who is responsible for conveying the person to the facility and returning the person to custody where the person is not admitted to the facility following examination and assessment under 38(1). Require that the order specify who is responsible for giving a copy of the order and any other order made to the person in charge of the facility.

New section 75 (5) makes provision for the Registrar of the Local Court must send a copy of the order to the person-in-charge of the facility as soon as practicable after the order is made and before the person is conveyed to the facility or where the order is cancelled, varied or extended.  

New sections 75(6) and (7) allow the Court to impose conditions on the admission and to identify what these conditions may include. 

New section 75(8) allows the Court to grant the person bail to enable release from the approved treatment facility while proceedings are adjourned.

New section 75(9) indicates that the Chief Health Officer or the person may apply to the court to vary, cancel or extend the order at any time.

75A	Determination that person not required to be admitted

New section 75A deals with the cancellation or variation of an admission order.  This amendment separates these provisions from section 75 ‘admission order’.  The provision has also been amended to ensure equivalence with other provisions in the Act for the revocation of involuntary admission orders.

75B	Person not required to be detained at approved treatment facility during adjournment

New section 75B provides for the person to be returned to lawful custody or released where the person is not admitted to the facility following examination and assessment under 38(1) or no longer requires admission following a determination under 75A(1).

76	Warrant of arrest
	
Amends to move the current section 77 to section 76 and provides for the Court to issue a warrant to arrest a person who either absconds from an approved treatment facility or fails to attend the facility where an order has been made under section 74A(2)(b) or 75(2)(b).

Division Two – Dismissal of Charge following certificate from Chief Health Officer

77	Dismissal of charge 

New section 77 replaces the existing section 78 and clarifies that this provision applies to a person who is charged with an offence in proceedings before a court and the court is exercising summary jurisdiction in the proceedings. 

Restructures the provisions to provide greater clarity regarding the appropriate issues to be addressed in a Chief Health Officer certificate, provides more flexibility regarding the number of reports required by the Chief Health Officer in considering the matter and introduces a multidisciplinary focus to such advice, and provides criteria the Court may apply after receiving the certificate and considering dismissal of the charge. 

Division Three – Voluntary treatment plan

78	Request for voluntary treatment plan

New section 78 provides for the court to request an assessment, and where appropriate, preparation of a voluntary treatment plan, for a person who has pleaded guilty or has been found guilty in cases where the court is exercising summary jurisdiction.

New section 78(2) provides this assessment to take place where the court is of the opinion that the person suffers from mental illness or mental disturbance that is likely to have contributed to the offence and where the person recognises that he or she is ill and is willing to address the problems associated with the illness.

New section 78(3) provides for the court to adjourn and grant bail to the person on the condition that they undergo assessment and follow the voluntary treatment plan where one is developed.

78A	Voluntary treatment plan

New section 78A outlines the conditions required for the development and implementation of a voluntary treatment plan.

New section 78A(1) outlines what a report under section 78 must state, including whether a voluntary treatment plan is appropriate for the person and, if so, the recommended nature and duration of the plan.

New section 78A(2) stipulates that a person must not be treated under a voluntary treatment plan if it means that the person would pose a serious risk to himself or herself or someone else.

New section 78A(3) allows the court to adjourn proceedings for a period not exceeding 6 months and grant bail to a person who enters an agreement to participate in voluntary treatment.

New section 78A(4) requires that where a voluntary treatment plan is not considered appropriate, the court must sentence the person.

78B	Review of voluntary treatment plan

New section 78B provides for review of the voluntary treatment plan following resumption of proceedings and consequential dismissal of charge, extension of the plan, or sentencing as appropriate.

78C	Failure to comply with condition

New section 78C provides for action to be taken in circumstances where a person fails to comply with a voluntary treatment plan and requires the practitioner to notify the court of non-compliance. The court may issue a warrant for the person and proceed to sentence the person.

78D	Consent to bail not inducement

New section 78D clarifies that granting of bail on the condition that a person undertakes assessment and treatment does not constitute an inducement for section 7 (2) (a).

Part 11 – Prisoners

Division One – Referral, assessment and admission

79	Assessment of prisoner

New section 79 provides for a request for assessment, arrangements to be made to conduct the assessment, provision for a practitioner to refuse to assess a prisoner where otherwise satisfied he/she is not in need of treatment and to specify the venue at which the assessment is to take place. 

80		Recommendation for voluntary admission

New section 80 provides for a designated mental health practitioner to recommend voluntary admission following examination and assessment and to recommend examination by an authorised psychiatric practitioner within 24 hours either at the prison or an approved treatment facility for this purpose.

80A	Voluntary admission of prisoner

New section 80 provides for the admission of a prisoner on a voluntary basis following examination and assessment under section 80.  The new provision restructures the existing section 81, aligns the section with Part 5 provisions and provides greater clarity regarding the arrangements for admission.

81	Involuntary admission of prisoner

New section 81 replaces existing section 82 and provides for the admission of a prisoner on an involuntary basis.  The new provision restructures the existing section 82, aligns the section with part 6 provisions and provides greater clarity regarding the process of assessment and arrangements for admission.

82	Person in charge to notify Director of Correctional Services

New section 82 replaces the existing section 81(2) and requires the person in charge of an approved treatment facility to which the prisoner has been admitted as a voluntary patient to notify the Director as defined in 78A of the circumstances listed in section 82(1)(a) to (e).

New section 82(2) requires the person in charge of an approved treatment facility to which the prisoner has been admitted as an involuntary patient to notify the Director of any decision to discharge or transfer a prisoner to another approved treatment facility under section 167.

Division Two – Leave of absence and apprehension of a prisoner

83	Leave of absence

New section 83 replaces the existing section 85.  

New section 83(2) introduces a requirement that leave arrangements must be recorded in the approved form and subject to conditions determined by the authorised psychiatric practitioner.

New section 83(3) provides for an authorised psychiatric practitioner to cancel leave and a new section 83(4) requires where leave is cancelled, that the authorised psychiatric practitioner take all reasonable steps to inform the prisoner and the prisoner’s representative that leave has been cancelled.

New section 83(5) defines the criteria for a prisoner to be absent without leave.

83A	Apprehension of prisoner

New section 83A replaces the existing section 85(3) and applies to a prisoner admitted to an approved treatment facility under part 11 who is absent without leave.

New section 83A(2) provides the authority for a police officer, prison officer or a person authorised by an authorised psychiatric practitioner to apprehend the prisoner and return them back to the facility.

New section 83A(3) provides reasonable force and assistance to be used in apprehending the prisoner and new section 83A(4) authorises police to enter private premises or any other private place where the police officer reasonably believes the person may be found for this purpose.

Division Three – General matters

84	Prisoner to remain in lawful custody

New section 84(1) and (2) replace the existing section 83.

85	Discharge of prisoners

New section 85 replaces the existing section 84.

86	Arrangements

New section 86 replaces the existing section 86.

Clause 51	Amendment to section 87 (Information to be provided to patients)

New section 87(1) defines the application of section 87.

New section 87(1A) requires the authorised psychiatric practitioner responsible for the persons care to give information specified in 87(1B) to the person, the person’s adult guardian and the person’s representative not later than one day after the person is admitted or the order is made.

New section 87(1B) specifies the information to be given at 87(1A) and includes information about the person’s rights and entitlements under the Act, how they may be accessed and exercised, the advocacy and legal services available to the person and any other information relating to the person’s admission and treatment as the Secretary considers relevant.  These changes are consistent with notification requirements for adult guardians set out in amendments throughout the Act. 

Clause 52	Repeal and substitution of sections 88 and 89.

88	Information concerning medication or treatment 
89	Discharge plan

New section 88(1) defines the application of section 88.

New sections 88(2) and (3) require the authorised psychiatric practitioner responsible for the care of the person to ensure information concerning treatment, including medication, is provided to the person, the person’s adult guardian and where in the opinion of the authorised psychiatric practitioner it is in the person’s best interest to do so, to the person’s representative and primary carer.

	New section 88(4), makes provision for circumstances where a practitioner decides not to notify a person’s representative or primary carer, and requires they provide a written report to the Tribunal of the decision, including the reason for the decision.

	New section 88(4)(b) requires the authorised psychiatric practitioner to inform the person’s representative or primary carer or his or her right to apply to the Tribunal for a review of the decision to withhold this information.

	New section 88(5) outlines who is authorised to provide the information under this section and what information is to be included. 

New section 88(6) requires a practitioner to make a record of notification under this section in accordance with approved procedures.

New section 89(1) requires that the person in charge of an approved treatment facility ensure the authorised psychiatric practitioner responsible for a person’s care prepare a discharge plan before the person is discharged from the facility.

New section 89(2) outlines what is to be contained in the treatment plan and specifies the discharge plan must be capable of being implemented.

New section 89(3) requires the authorised psychiatric practitioner to ensure consultation is undertaken regarding arrangements under section 89(2) when the discharge plan is being prepared. Requires that persons consulted be informed of the details of the plan once it is finalised.

New section 89(4) lists the individuals to be consulted and informed including the person and the person’s adult guardian and where in the opinion of the authorised psychiatric practitioner it is in the person’s best interest to do so, the person’s representative and primary carer.

New section 89(6), makes provision for circumstances where a practitioner decides not to allow consultation with or giving of information to a person’s representative or primary carer, and requires they provide a written report to the Tribunal of the decision and the reasons for it, inform them of their right to apply to the Tribunal for review of the decision and make a record of the decision in accordance with approved procedures.

New section 89(7) provides for consultation under this section and lists those members of staff authorised to conduct such consultation.

New section 89(8) requires that a record be kept by the authorised psychiatric practitioner in accordance with approved procedures of the information provided under section 89.

New section 89(9) requires that a person who conducts a consultation under this section keep a record in accordance with approved procedures.   

Clause 53	Amendment of section 90 (Information on discharge)

Amends section 90(1)(b) to reflect the revised definition of primary carer at section 7A.

Clause 54	Amendment of section 91 (Disclosure of information)

New section 91(2)(b) to allow an adult guardian to give consent to the disclosure of information and to provide a more appropriate range of decision makers to consent to information disclosure if the person is deceased by introducing the concept of ‘nominated next of kin’, ‘senior next of kin’, and ‘executor or administrator of the deceased person’s estate’.

New section 91(2)(c) to specify that information may be disclosed where required in the course of both criminal investigations and criminal proceedings.

Amends section 91(2)(e) and (f) to provide greater clarity regarding these provisions and to replace the reference to “imminent harm” with “serious harm” to ensure consistency with other amendments.

New section 91(2)(ga) allows information to be provided to a police officer in connection with the new missing persons provision at section 166B(2).

At the end of section 91 (2) (a), (d), (g) and (h) to (k) insert ‘or’.

Amends section 91(2)(m) and (3) to replace references to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

Clause 55	Repeal and substitution of section 92 (Access to records)
New section 92(1) defines who may apply to have access to information contained in a record maintained at an approved treatment facility or agency.

New section 92(2) requires the application to be made in writing to an authorised psychiatric practitioner employed at an approved treatment facility or agency.
	
New section 92(3) indicates that access to the information may be given to an applicant either without conditions or on the condition the practitioner or someone else able to interpret the information is present during the access.

New section 92(4) provides for the practitioner to refuse an application if he or she believes on reasonable grounds that if the person is given access, his or her health may deteriorate, they may become a danger to themselves or others, or persons mentioned in the information may be adversely affected or endangered.

New section 92(5) requires that where access to records is refused, the practitioner notify the applicant in writing as soon as possible, where the information relates to the applicant the applicant’s representative that access has been refused. The practitioner must also inform the applicant of his or her right to apply to the Tribunal for a review of the decision.

New section 92(6) provides that if the applicant has not been given access to the information or otherwise received notification regarding the status of their application within 30 days, the practitioner is to be taken to have refused the access.

Clause 56	Amendment of section 93 (Disclosure to representative)

Amends section 93 to insert a reference to an adult guardian so that this section is in line with other amendments to the Act.

Clause 57	Amendment of section 94 (Inclusion of written comments into records)

Amends section 94 to insert a reference to an adult guardian so that this section is in line with other amendments to the Act.

Clause 58	Amendment of section 98 (Restriction or denial of entitlement)

Amends section 98(5)(b) to delete the reference to an ‘appeal against the order’ and replace it with an application to the Tribunal for review of the order.

Clause 59	Amendment of section 99 (Withholding of certain correspondence)

Amends section 99(2) to insert a reference to an adult guardian and the Anti-Discrimination Commissioner.

Amends section 99(2)(b) to replace reference to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

Clause 60	Amendment to section 100 (Internal complaints procedures)

Amends section 100(5) to insert a reference to an adult guardian so that this section is in line with other amendments to the Act. 

Clause 61	Amendment of section 101 (Principal community visitor)

Amend section 101(2) by removing the word ‘the’ and replacing it with the phrase ‘subject to section 101A, the’.

Clause 62	New section 101A (Resignation and termination of appointment – principal community visitor)

New section 101A to provide for the resignation and termination of appointment of the principal community visitor.  

These amendments are in line with section 44 of the Interpretations Act. 

Clause 63	Repeal and substitution of section 103 (Community visitors)

103	Community Visitors
103A	Resignation and termination of appointment – principal community visitor
103B	Interim appointment of community visitor

New section 103 provides for appointment of a community visitor to be undertaken by the Minister, allows the Minister to determine the qualifications required for appointment and appoints a community visitor for three years. 

New section 103A provides for the resignation and termination of appointment of a community visitor by the Minister.  These amendments are in line with section 44 of the Interpretations Act. 

New section 103B provides for the principal community visitor to make interim appointments of community visitors for a period of 60 days pending formal appointment by the Minister at section 103(1).  New section 103B(3) provides the principal community visitor with the authority to terminate an appointment under this section before the period of 60 days ends.

Clause 64	Amendment to section 108 (Requests to see community visitors)

Amends section 108(4) to change the requirement to “visit” to a requirement to “contact” so that the community visitor is not compelled to see the person face to face on every occasion. This amendment is required to make the administration of this part less onerous in rural and remote areas.

Amends section 108(4) to replace current ’not later than 48 hour’ timeframe with ‘next working day’ to tighten up response times on weekdays and acknowledge difficulties in responding to requests on weekends.
	
Clause 65	Amendment to section 110 (Community visitors panels)

Amends section 110 (1) to remove the requirement to establish community visitors panels on a routine basis for all approved treatment agencies.  Visits to approved treatment agencies by community visitors will continue and are considered sufficient to ensure that approved treatment agencies continue to be monitored externally.

Amends section 110(2) and (3) to change references from the principal community visitor to the Minister.

Amend section 110(3) by removing the words ‘organisations that represent’ to clarify a member of a community visitor panel is to represent the interests of consumers and not of a particular organisation.

New section 110(6) allows a member of a community visitor panel to hold office for three years and be eligible for reappointment subject to 110A.

Clause 66	New sections 110A and 110B.

110A	Resignation and termination of appointment – member of community visitors panel 

110B	Interim appointment of member of a community visitor’s panel.

New section 110A provides for the resignation and termination of appointment of a community visitor panel member by the Minister.  These amendments are in line with section 44 of the Interpretations Act. 

New section 110B provides for the principal community visitor to make interim appointments of community visitor panel members for a period of 60 days pending formal appointment by the Minister at section 103(1).  New section 110B(3) provides the principal community with the authority to terminate an appointment under this section before the period of 60 days ends.

Clause 67	Amendment of section 111 (Duties of community visitors panels)

Amends section 111(1), to remove references to approved treatment agencies to align this section with amendments to section 110.

Amends section 111(2)(a) to (g) at the end by inserting the word ‘and’.

Amends section 111(3) by deleting ‘or premises occupied by an approved treatment agency’. 

Amends section 111(3)(a) by removing the words ‘or the premises’.

Amends section 111(3)(b) to (e) by removing the words ‘or by the agency’.

Clause 68	Amendment of section 112 (Reports by community visitors panels)

Amends section 112 to remove references to approved treatment agencies so that this section is in line with amendments to section 110.

Amends section 112(5) to replace reference to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

Clause 69	New section 112A (Special community visitors panels)

New section 112A(1) provides for the establishment of special community visitor panels, which can be established at the discretion of the principal community visitor to investigate and report on approved treatment agencies when required.

New section 112A(2) authorises members of a special community visitor panel to visit the places and make inquiries necessary to conduct an investigation.

New section 112A(3) provides for a report on the panel’s investigation to be provided to the principal community visitor by the Chairperson of the panel.

New section 112A(4) requires the report to be in writing and outlines what it is to contain. 

New section 112A(5) requires the principal community visitor to provide a copy of the report to the person in charge of the approved treatment agency and for the person in charge to respond within 14 days of receiving the report.

New section 112A(6) provides for the principal community visitor to forward the report to the Secretary if he or she believes the person in charge of the approved treatment agency inspected by the panel has not taken action to address or provide a reasonable response to the matters raised in the report.

New section 112A(7) provides the power for the principal community visitor to re-establish the panel if further investigation is required.

New section 112A(8) states Division 4 and section 110(2) to (5) apply to a special community visitors panel as if it were a community visitors panel.

Clause 70	Repeal and substitution of section 113 (Assistance to be provided)

New section 113 restructures the section into two parts so that approved treatment agencies and approved treatment facilities are dealt with separately. These changes also include reference to special community visitor panel visits to approved treatment agencies.

New section 113(3) defines reasonable assistance for the purpose of this provision.

Clause 71	Repeal and substitution of section 116 (Detection of offences)

New section 116 restructures and resequences the provision.

New section 116(1) outlines the application of the section.

New section 116(2) outlines the obligations of a community visitor or community visitor panel member where they discover an offence may have been committed against this Act or another Act.

New section 116(3) outlines the obligations of the principal community visitor to inform the Secretary or the Chief Executive Officer of another agency where he or she has received a report indicating an offence may have been committed.

Clause 72	Amendment of section 117 (Confidentiality)

Amends section 117(1) to include employees of the Department of Health and Community Services in the provision and to insert a $5000 penalty where confidentiality is breached. This penalty is consistent with prescribed penalties for breaches of confidentiality throughout the Act, a similar penalty applies to members of the Mental Health Review Tribunal under section 139.

Clause 73	Amendment of section 118 (Mental Health Review Tribunal)

Amends section 118(3) to insert references to “magistrate”, “a person appointed to be a Judicial Registrar under section 9 (1) of the Local Court Act and “a lawyer” with at least 5 years experience.  These amendments have been made to more clearly articulate the criteria for appointment of the legal member of the Tribunal.

Amends section 118(5) to insert a new subsection 118(5)(ca) to include a reference to a member of a community visitor’s panel. 

Amends section 118(5)(g) to replace reference to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

Amends section 118(5)(h) to remove ‘agency; or’ and replace it with ‘agency’.

Amends section 118(6) by deleting the word ‘a’ and replacing it with ‘subject to section 119, a’

Clause 74	Amendment of section 120 (Constitution of Tribunal)

Amends heading of this section to replace the word ‘Constitution’ with ‘Composition’ to reduce confusion regarding the application of this section.

New subsection 120(4) to allow the Tribunal to sit with two members, one of whom must be the President of the Tribunal, in exceptional circumstances. This change is required to enable the Tribunal to sit in unusual circumstances e.g. one of the members has a serious conflict of interest or is suddenly ill.

Clause 75	Amendment of section 121 (Registrar of Tribunal)

Amends section 121 by omitting all references to ‘an employee, within the meaning of the Public Sector Employment and Management Act,’ and substituting ‘a public sector employee’.

Clause 76	Amendment of Part 15 Division 2 heading

Amends the heading of this division to remove the word ‘appeals’ to ensure consistency with other amendments.

Clause 77	Amendment of section 122 (Review of long term voluntary admissions)

Amends section 122(2)(a) by omitting the words ‘, it may’ and substituting ‘- may’.

New section 122(2)(aa) provides that where a person is under adult guardianship and is willing to be admitted but does not fulfil the criteria for admission as an involuntary patient, the Tribunal may confirm the admission of the person as a voluntary patient.

Amends section 122(2)(b) to (d) by omitting the words ‘,it may’ and substituting ‘- may’.

New section 122(5) provides that where a person is the subject of an order made at 122(2)(b) and is discharged by an authorised psychiatric practitioner under section 40(4) the order ceases to have effect.

Clause 78	Amendment of section 123 (Review of involuntary admissions and community management orders)

Amends section 123(1) and (2) to change the timelines from 7 days to 14 days.  These changes are consistent with changes to timelines for Tribunal review throughout the Act.

Amends section 123(4) by adding a new clause 123(4)(b) which makes it clear the Tribunal may review an order or decision on its own initiative at any time.

New section 123(6)(a) provides that where a person is the subject of an order made at 123(5)(a) and is discharged by an authorised psychiatric practitioner under section 40(4) the order ceases to have effect.

Amends section 123(7) by omitting the words ‘an order admitting’ and replacing them with ‘the admission of’.

Clause 79	Repeal of section 124 (Review of certain decisions of authorised psychiatric practitioners)

Repeals the existing section 124, which is now incorporated into the new section 127. 

Clause 80	Amendment of section 127 (Appeals)

New section 127(1) provides for an application to be made to the Tribunal to review a decision or order of a medical practitioner or authorised psychiatric practitioner  

Amends to include a full listing of appeals, which may be, made to the Tribunal under this Act.

New section 127(2) provides for an application to be made to the Tribunal to review a decision of a person in charge of an approved treatment facility to transfer a person to another approved treatment facility under section 167(1).

Amends section 127(3) to replace the word ‘appeal’ with ‘application’ and to provide clarity regarding who may make an appeal application on a person’s behalf.

Amends section 127(5) to delete the phrase ‘an appeal under subsection (1)’’ and insert ‘a review conducted in response to an application made under subsection (1)’.

Amends section 127(5)(b) and (c) to insert after the word ‘practitioner’ the phrase ‘or person in charge’.

Amends section 127(6) to delete the phrase ‘an appeal made under subsection (2)’’ and insert ‘a review conducted in response to an application made under subsection (2)’

Clause 81	Repeal and substitution of section 128 (Limitation of further reviews)

Amends to align the language in this section with other amendments throughout the Act by removing the reference to ‘appeal’ and replacing it with ‘application for review’.

Clause 82	Amendment of section 129 (Hearings)

Amends to delete the existing section 129(1) and (2) and inserts a new subsection (2A) to include new provisions for the Mental Health Review Tribunal to issue its own practice directions and to conduct hearings at its own discretion. 

New section 129(5A) clarify’s that an order in force during the adjournment of a hearing remains in force irrespective of whether an earlier date had been fixed for its expiry. 

Clause 83	Repeal and substitution of section 131 (Right of appearance and representation)

Amends section 131(2) to cover situations where the person refuses legal representation.

New section 131(5) and (6) to allow a hearing to proceed in the absence of the person or the person’s representative providing reasonable notice has been given, the person had a reasonable opportunity to attend, the person refuses to attend or in the Tribunal’s opinion there are exceptional circumstances that make the person’s attendance inappropriate, for example serious safety risks and the person’s representative is given reasonable notice of the review and has a reasonable opportunity to attend the review.

New section 131(7) provides for the Tribunal to notify the person who is the subject of the review of its decision where a review has been conducted in the absence of the person or his/her representative.

Clause 84	Amendment of section 132 (Access to medical records)

Amends section 132(1) to insert the phrase “subject to subsections (2), (3), (4) and (5)” to provide clarity as to when a person may be given access to his or her medical records.

New section 132(1A) inserts a reference to enable access to a medical record to be given to an adult guardian and the person’s representative where an undertaking is given not to disclose the information.  

Amends section 132(3) and (4) to insert the phrase ‘adult guardian or’ before the word ‘representative’.

Amends section 132(4) to insert the phrase ‘adult guardian or’ after the word ‘permitting’.

Clause 85	New section 135A (Contempt of Tribunal)
New section 135A introduces a mechanism to regulate the behavior of Tribunal attendees by clarifying a person must not:

(a)	 threaten intimidate or insult the Tribunal, or a member of the Tribunal, in relation to the performance of the functions or the exercise of the powers of the Tribunal by the Tribunal or the member; or
(b)	 interrupt, obstruct or hinder a proceeding of the Tribunal; or
(c)	 create a disturbance, or take part in creating or continuing a disturbance, in or near a place where the Tribunal is sitting.  

A Maximum penalty: $2 500 or imprisonment for 6 months has also been included.

Clause 86	Amendment of section 136 (Record of proceedings)

Amends section 136 (1) (a) to ensure reference to the recording of proceedings refers to recording by ‘electronic means’ rather than ‘audio tape’ only. 

Amends section 136(1)(b) to introduce a 12-month timeframe for the retention of records of Mental Health Review Tribunal proceedings.

Amends section 136(2) to clarify that the person subject to an appeal or review may request a copy of information relating to their appeal or review.

Amends section 136(3) and (4) to delete the phrase ‘or appeal’.

Amends sections 136(4) and (5) to include a reference to an adult guardian. These changes are consistent with the changes to the rest of the Act.

Amends sections 136(5) to insert the phrase ‘adult guardian or’ after the word ‘providing’.

Clause 87	Amendment of 139 (Secrecy provision)

Amends section 139 to include a reference to a staff member of the Tribunal. This is to ensure that Tribunal information remains confidential subject to the provisions of the Act.
	
Clause 88	Amendment of section 144 (Right of appearance and representation)

Amends section 144 to mirror changes to section 131 outlined in clause 76. 
	
Clause 89	Amendment to section 150 (Interstate mental health orders)

Amends section 150(2) by inserting reference to ‘health or’ before the word ‘welfare’ so the provision reads ‘health or welfare’.

Amends section 150(4)(b) to replace reference to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions. 

Clause 90	Amendment of section 151 (Definitions)

Amends section 151 to omit the current definition of corresponding law and replace it with a new definition indicating a corresponding law means a law prescribed by regulation. 

Clause 91	Repeal of section 152

Amends to remove the current corresponding law provisions, which are to be prescribed by regulation.

Clause 92	Amendment of section 154 (Interstate transfer orders)

Amends section 154(1) by inserting reference to ‘health or’ before the word ‘welfare’ so the provision reads ‘health or welfare’.

Amends section 154(2)(b) to update the reference to a carer so it is consistent with other amendments throughout the act.

Amends section 154(2)(d) to replace reference to ‘Secretary’ with ‘CEO’ to align terminology with current drafting conventions.

Clause 93	Amendment of section 156 (Secretary may consent to transfer)

Amends section 156 heading and provisions to replace the reference to Secretary with CEO to align terminology with current drafting conventions.

Clause 94	Amendment of section 160 (Recommendation or certificate not to be signed without examination)

Amends section 160(1) to insert the phrase “under subsection 18(1) or otherwise specified in the Act” after “unless approved” to provide clarity as to when a recommendation for psychiatric examination may be signed without examination of a person.  

Clause 95	Amendment of section 161 (Persons prohibited from signing recommendation or certificate)

Amends section 161 to clarify that the provision only relates to involuntary admission.

Clause 96	Repeal of section 163 (Apprehension by police)

Amends to move the current section 163 to a new section 32A. 

Clause 97	Repeal and substitution of section 166 (Leave of absence)

166	Leave of absence
166A	Person absent without approval
166B	Missing patients

New section 166(1) outlines the application of section 166.

The remainder of section 166 is consistent with the existing provision.

New section 166A provides for the apprehension of a person absent without leave from an approved treatment facility and authorises a police officer or a person authorised by an authorised psychiatric practitioner to use reasonable force and assistance to return the person to the facility and for a police officer to enter private premises where the police officer reasonably believes the person may be found for this purpose.  

New section 166B provides for a report to be made to police of missing patients on involuntary orders from an approved treatment facility or in the community.  166B(3) requires that certain information be contained in a report and it is in the approved form.

This amendment has been made in response to recommendations of the Palmer Inquiry into the circumstances surrounding the wrongful detention of Cornelia Rau.

Clause 98	Amendment of section 167 (Transfer of involuntary patients)

Amends section 167 to replace section 167(2) to ensure a person is advised of their right to appeal to the Mental Health Review Tribunal under section 127(2). This change is consistent with appeal rights throughout the Act.

Clause 99	Repeal and substitution of section 168

168	Financial protection order
168A	Notification of financial protection order

New section 168(1) outlines the circumstances under which an application under section 168 can be made.  

New section 168(2) provides the person in change of an approved treatment agency with the authority to make a financial protection order for a person.

New section 168(3) and (4) define a 14-day period in which the order remains in force and authorises the person in charge to take action to protect the person’s financial affairs.

New section 168 (5) allows an order to be extended once by the ‘person in charge’ of an approved treatment agency for a further period of no longer than 14 days.

New section 168(6) requires the person in charge to maintain records in the approved form and in compliance with approved procedures regarding orders made under this section and to make such orders available for inspection by the Tribunal or a community visitor.

New section 168(7) requires the person in charge, before the expiry of the order or extended order to initiate ongoing financial protection arrangements for the person or to revoke the order if satisfied the criteria no longer apply.

New section 168A includes notification provisions where a financial protection order is applied and specifies who must be notified.

New section 168A(1) requires the person in charge of an approved treatment agency to notify the Tribunal, person, a legal practitioner, and the principal community visitor, and where considered to be in the person’s best interest, the primary carer when a financial protection order is made. 

New section 168A(3) requires the person in charge to provide a written report of the decision and reason for it, in the approved form, to the Tribunal where he/she decides not to notify a person’s primary carer.

New section 168A(4) outlines who is authorised to provide a notification and what the notification is to include.

New section 168A(5) requires the notification to be given orally or in writing and in a language that can be understood by the receiver.

New section 168A(6) requires a record to be kept of a notification or decision under this section.

Clause 100	New Part 20 heading

Inserts heading for new Part 20 after section 170. 

Clause 101	New Part 21 (Transitional matters for Mental Health and Related Services Amendment Act 2006)

173	Definitions
174	Reviews and appeals
175	Actions taken under former Act
176	Transitional provisions for Part 10
177	Admission of prisoners
178	Transfer of prisoners
179	Corresponding laws

Inserts new Part 21 after section 172.

New section 173 provides definitions of ‘commencement’ and ‘former Act’.

New section 174 provides for the former Act to continue to apply to review or appeal proceedings before the Tribunal, which commenced before the commencement of this Act.

New section 175 provides for actions specified and done under the former Act to be taken to have been done under this Act. 

New section 176 provides transitional provisions for Part 10, which allow for reports prepared for the court and orders made under the provisions of the former Act to be given effect under this Act.

New section 177 provides for any prisoner detained at an approved treatment facility on either a voluntarily or involuntarily basis under the provisions of the former Act to be taken to have been admitted under this Act.

New section 178 provides for any transfer of a prisoner to an approved treatment facility under the provisions for the former Act to be taken to be a transfer permitted by the Director of Correctional Services under the provisions of this Act.

New section 179 provides for a law declared as a corresponding law under the former Act to have been prescribed by regulation as a corresponding law. 

Clause 102	Further Amendments

Gives effect to the attached schedule, which includes substitution of all references to ‘Secretary’ with ‘CEO’, amendment of Part 9 Heading to omit ‘Forms of Treatment’ and Substitute ‘Treatments and Measures’, and omitting all references to the term ‘appeal’ which have been replaced throughout the Bill with the term ‘request for review’.