Mental Health and Related Services Amendment Bill 2011
 
SERIAL NO. 189

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR HEALTH

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Mental Health and Related Services Act 2009. 

The purpose of the Bill is to: 
·	introduce complex cognitive impairment as a grounds for involuntary admission;
·	introduce the criteria for involuntary admission on grounds of complex cognitive impairment;
·	provide a process for applications for involuntary admission and detention on grounds of complex 	cognitive impairment.  The process enables direct application to be made by an authorised officer 	and authorised psychiatric practitioner, or alternatively, indirect application for an existing 		involuntary patient admitted on grounds of mental disturbance;
·	introduce the term authorised officer as a person who makes joint application with an authorised 	psychiatric practitioner for involuntary detention on grounds of complex cognitive impairment;
·	provide for the Mental Health Review Tribunal to review involuntary detention on grounds of 		complex cognitive impairment;
·	provide for a person to be appointed to the Mental Health Review Tribunal who has a special 		interest or expertise with complex cognitive impairment;
·	substitute penalty units in accordance with the Penalty Units Act 2009 and Penalty Units 			Regulations 2011; and
·	to update the Mental Health and Related Services Act in accordance with current drafting 		conventions.

NOTES ON CLAUSES

Clause 1	Short title

The Act may be cited as the Mental Health and Related Services Amendment Act 2011.

Clause 2	Commencement

The Act commences on the day fixed by the Administrator by Gazette notice.

Clause 3	Act amended

This clause provides for the amendment of the Mental Health and Related Services Act 2009.

Clause 4	Amendment of section 4 (Definitions)

Amends section 4 to remove definitions of “Agency, criteria, Director of Correctional Services, informed consent, involuntary patient, mental illness, prison officer, prisoner and treatment”.  

Includes new definitions for ‘authorised officer’, ‘behavioural disturbance’, ‘cognitive impairment’, ‘complex cognitive impairment’, ‘corresponding law’; ‘criteria’ for the involuntary admission on the grounds of mental illness, mental disturbance and complex cognitive impairment, ‘existing involuntary patient’, ‘interstate transfer order’, ‘involuntary detention application’, ‘mental health order’, ‘participating State or Territory’, ‘prison officer’, ‘prisoner’, ‘recommendation for psychiatric examination’, ‘treatment’ and ‘treatment management plan’; and introduces or refines definitions for a number of existing terms either not previously or inadequately defined such as ‘informed consent’, ‘involuntary patient’, ‘mental illness’.

Clause 5	New section 6A (Complex cognitive impairment and related terms)

	6A	Complex cognitive impairment and related terms

New section 6A defines the newly introduced terms ‘complex cognitive impairment’, ‘cognitive impairment’ and ‘behavioural disturbance’.  

A person has a complex cognitive impairment if the person has a cognitive impairment with a behavioural disturbance.

A person has a cognitive impairment if the person has an intellectual impairment, neurological impairment or acquired brain injury (or any combination of these) that:
(a)	is, or is likely to be, permanent; and
(b)	results in substantially reduced capacity in at least one of the following:
(i)	self-care or management;
(ii)	decision making or problem solving;
(iii)	communication or social functioning

A person has a behavioural disturbance if the person’s mental condition has deteriorated to the extent the person is behaving in an aggressive manner or is engaging in seriously irresponsible conduct.

Clause 6	New section 8A (Application of Criminal Code)

8A	Application of Criminal Code

New section 8A extends Part IIAA of the Criminal Code to an offence under this Act.

Clause 7	New section 15A (Involuntary admission on grounds of complex cognitive impairment)

15A	Involuntary admission on grounds of complex cognitive impairment

New section 15A sets out the criteria for the involuntary admission of a person on the grounds of complex cognitive impairment.

The criteria are:
(a)	the person is an adult who does not fulfil the criteria for involuntary admission on the grounds of 		mental illness or mental disturbance; and
(b)	the person has significant cognitive impairment; and
(c)	unless the person receives treatment and care at an approved treatment facility, the person:
(i)	is likely to cause serious harm to himself or herself or to someone else; or
(ii)	will represent a substantial danger to the general community; ot
(iii)	is likely to suffer serious mental or physical deterioration; and
(d)	the person is likely to benefit from the treatment and care; and
(e)	the person is not capable of giving informed consent to the treatment and care; and
(f)	there is no less restrictive way of ensuring the person receives the treatment and care.

Clause 8	Amendment to section 17 (Powers and functions of CEO)

Amends subsection 17(4) to place emphasis on conduct that results in a contravention of subsection 17(3) and amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 9	Amendment to section 22 (Authorised psychiatric practitioners)

Amends section 22 to update a person’s qualifications in the specialty of psychiatry in accordance with the Health Practitioner Regulation National Law. 

Clause 10	New section 23A (Authorised officers)

New section 23A introduces the position and functions of ‘authorised officers’.

Clause 11	Amendment to section 29 (Discharge of voluntary patients)

Amends section 29(1) to clarify that, subject to section 30, a voluntary patient may discharge himself or herself from an approved treatment facility at any time; and provides practice notes referring to sections 89 and 90 for appropriate information and arrangements following discharge. 
New section 29(5) ensures that a person’s guardian is informed as soon as practicable should a voluntary patient under guardianship discharge himself or herself.

Clause 12	Amendment section 34 (Recommendation for psychiatric examination)

Amends subsection 34(3)(a) to remove the reference to “an assessment” and replace with “psychiatric examination”.  

Clause 13	Amendment to section 44 (Review of admission)

Creates a new subsection 44(2)(a) to replace the previous subsection 44(2)(b) to refer to a person who fulfils the criteria for involuntary admission on grounds of mental illness.  

Amends subsection 44(2)(b) – upon review of a person admitted as an involuntary patient on grounds of mental disturbance pursuant to s 42(1), allows the authorised psychiatric practitioner to alternatively detain the person on the grounds of complex cognitive impairment.  In those circumstances an authorised officer must be notified.

Amends subsection 44(4) to clarify the meaning of that subsection.

Clause 14	New Part 6, Division 4 (Involuntary admission on grounds of complex cognitive impairment)

Division 4	Involuntary admission on grounds of complex cognitive impairment
Subdivision 1	Interpretation 

44A	Meaning of treatment management plan

	New section 44A(1)(i) to (h) sets out the requirements of a treatment management plan that is to be prepared by an authorised psychiatric practitioner and authorised officer as part of an Application for order for involuntary admission pursuant to new section 44C.

Subdivision 2	Tribunal authorised planned admissions

44B	Application of Subdivision

New section 44B provides that subdivision 2 applies if an authorised psychiatric practitioner and authorised officer form the opinion that a person fulfils the criteria for involuntary admission on grounds of complex cognitive impairment.

44C	Application for order for involuntary admission

New section 44C requires the authorised psychiatric practitioner and authorised officer to apply for a Tribunal order for involuntary admission and detention and sets out the form and timing of the application.  

44D	Notice of application

New section 44D sets out the notice requirements for the application.

44E	Decision on application

New section 44E sets out the orders of the Tribunal on hearing the application.  If the Tribunal decides the person fulfils the criteria for involuntary admission on the grounds of complex cognitive impairment make on hearing the application, the Tribunal must order:
(a)	the person be admitted to, and detained in, an approved treatment facility as an involuntary patient on those grounds; and
(b)	the treatment management plan for the person be implemented.
Otherwise, the Tribunal must dismiss the application and if the Tribunal does not order the person be detained as an involuntary patient on grounds of mental illness or mental disturbance order for the person to be discharged from the approved treatment facility.

44F	Content of order

New section 44F sets out the scope and content of the Tribunal’s order.

44G	Regular examinations

New section 44G provides for examination of the person by an authorised psychiatric practitioner not less than once every 72 hours after the Tribunal has made an order for the person’s admission and detention on the grounds of complex cognitive impairment.

44H	Discharge

New section 44H prescribes the timing of any discharge of a person from an approved treatment facility.  

Clause 15	Amendment to section 53 (Suspension of community management order)

Amends subsection 53(8) to clarify that a psychiatric examination conducted under subsection 53(4) will have the same effect as a psychiatric examination made under section 34(1).

Clause 16	Amendment to section 58 (Psychosurgery)

	Amends section 58 by incorporating penalty units pursuant to the Penalty Units Act 2009.

Clause 17	Amendment to section 59 (Coma therapy)

	Amends section 59 by incorporating penalty units pursuant to the Penalty Units Act 2009.

Clause 18	Amendment to section 60 (Sterilisation)

Amends section 60 to extend the prohibition against sterilisation to persons with complex cognitive impairment.  The section also updates the prohibition in terms of Part IIAA Criminal Code, by omitting the words “or is reasonably likely”, so that intention is the only fault element for intentionally performing the treatment.  The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 19	Amendment to section 61 (Mechanical restraint)

Amends section 61 by adopting the term ‘patient’ in substitution for the word ‘person’.  The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 20	Amendment to section 62 (Seclusion of patients)

Amends section 62 by adopting the term ‘patient’ in substitution for the word ‘person’.  The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 21	Amendment of section 63 (Non-psychiatric treatment)

	Amends section 63 by making it clear that the prohibition against non-psychiatric treatment applies to a person who is being assessed or receiving treatment under this Act.  The section is also expanded to include complex cognitive impairment.  The section further amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 22	Amendment of section 64 (Major medical procedure)

Amends subsection 64(1) is re-worded in accordance with current drafting conventions.  The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 23	Repeal and substitution of section 65 (Clinical trials and experimental procedures)

New section 65 is re-worded in accordance with current drafting conventions.  The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 24	Amendment of section 66 (Electro convulsive therapy)

	Amended section 66 is re-worded in accordance with current drafting conventions.  The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 25	Amendment of section 67 (Licensing of premises)

Amended section 67 is re-worded in accordance with current drafting conventions.  The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 26	Amendment to section 91 (Disclosure of Information)

Amends subsection 91(1) to place emphasis on the conduct that results in a contravention of section 91.

Amends subsection 92(2)(g) by substituting the term “police officer” for “member of the Police Force”.

Amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 27	Amendment of section 93 (Disclosure to adult guardian or representative)

	Amends section 93 by incorporating penalty units pursuant to the Penalty Units Act 2009.

Clause 28	Amendment of section 117 (Confidentiality)

Amends subsection 117(1) to place emphasis on the conduct that results in a contravention of section 117 and is re-worded in accordance with current drafting conventions.  

The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 29	Amendment of section 118 (Mental Health Review Tribunal)

Amends subsection 118(3)(c) to provide for a person who has a special interest or expertise in complex cognitive impairment to be appointed to the Tribunal.  

Amends subsection 188(5) to include an “authorised officer” as one of the persons who cannot be appointed to the Tribunal.

Clause 30	Amendment of section 122 (Review of long term voluntary admissions)

Amends section 122 by requiring a review of the admission of a person under section 27 as a voluntary patient on application by an authorised psychiatric practitioner.

Clause 31	Amendment of section 123 (Review of involuntary admissions and community management orders)

Amends subsection 123(1) to specify the timing of a review of a person’s admission under a Tribunal order for involuntary admission pursuant to Part 6, Division 4.   

Amends subsection 123(5) to include the criteria for admission on grounds of complex cognitive impairment and by new subsection (6B) specifies the effect of a Tribunal order in relation to involuntary admission on grounds of complex cognitive impairment.

Clause 32	Amendment of section 127 (Application for review)

	Amends subsection 127(1)(b)(ii) to allow for review where an authorised psychiatric practitioner decides to either admit or refuse to admit a person as voluntary patient.

	Amends subsection 127(1)(b)(iv) by substituting the words “14 days” and replacing the words “7 days”, in accordance with section 42(2) to which the subsection relates.

Clause 33	Amendment of section 129 (Hearings)

	Amends section 129 by requiring the Tribunal to conduct a hearing to decide an application under Part 6, Division 4, for an order for a person’s admission and detention as an involuntary patient on the grounds of complex cognitive impairment.

Clause 34	Amendment of sections 130 (Matters to be considered by Tribunal)

Amends section 130 to include “complex cognitive impairment” and is re-worded in accordance with current drafting conventions.  

Clause 35	 Amendment of section 132 (Access to medical records)

Amends section 132 to allow a person access to his or her medical records both where they are subject to review or to an involuntary detention application.

The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 36	Amendment of section 135A (Contempt of Tribunal)

	Amends section 135A by incorporating penalty units pursuant to the Penalty Units Act 2009. 

Clause 37	Amendment of section 136 (Record of proceedings)

Amends section 136 to allow a person to obtain a copy of the record of his or her Tribunal proceedings both where they are subject to review or to an involuntary detention application.

The section also amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

Clause 38	Repeal and substitution section 138 (Publication of names, &c)

	Repeal and substitution of section 139 (Secrecy provision)

	138 Publication of identifying information’

Amends section 138 to prohibit the publication of the name of a person who is the subject of either a review or an involuntary detention application.  The section also updates the prohibition in terms of Part IIAA Criminal Code, giving emphasis to the consequence of the conduct that forms the offence by removing the words “information that identifies or may identify” and replacing with the words “information that results in the identification of another person”.

Section 138 is also re-worded in accordance with current drafting conventions and amends the penalty to penalty units pursuant to the Penalty Units Act 2009.

139	Confidentiality of information – Tribunal members, staff and authorised officers

	New section 139 places emphasis on the conduct that results in a contravention of section 139 and is re-worded in accordance with current drafting conventions.  

The section also introduces penalty units pursuant to the Penalty Units Act 2009.
 
Clause 39	Amended section 147 (Disclosure, &c., of information)

Amended section 147 replaces the words “divulge or communicate to any person” with “disclose to someone else, or make use of” and amends the penalty pursuant to the Penalty Units Act 2009.

Clause 40	Repeal and substitution of section 160 (Recommendation or certificate not to be signed without examination))

160	Documents relating to examination, admission and treatment

New section 160 is re-worded in accordance with current drafting conventions and adds in subsection 160(2) complex cognitive impairment.

The section is also amended by incorporating penalty units pursuant to the Penalty Units Act 2009.

Clause 41	Amendment of section 162 (Offences in relation to recommendations or certificates)

Amends section 162(2) by replacing “fraudulent means” with “intention” as an element of the offence.  

The section is also amended by incorporating penalty units pursuant to the Penalty Units Act 2009.

Clause 42	Repeal and substitution of section 170 (Regulations) 

Amends section 170 by simplifying the wording of the regulation making power in accordance with current drafting conventions.

Clause 43	Act further amended

The Schedule makes various consequential amendments to the Act, including those necessary to accommodate the new terms “complex cognitive impairment” and “involuntary detention application”.  Other amendments are in accordance with current drafting conventions.