Explanatory Guide

to the draft Mental Health Bill 2011

December 2011

Contents
How to use this document ......................................................................................... 3 Background ............................................................................................................... 3 Part 1: Preliminary matters ........................................................................................ 6 Part 2: Objects. ....................................................................................................... 10 Part 3: Mental Health Care Charter ......................................................................... 11 Part 4: Informed consent to admission and treatment.............................................. 12 Part 5: Involuntary Patients ..................................................................................... 14 Part 6: Detention for examination or treatment ........................................................ 24 Part 7: Community Treatment Orders...................................................................... 28 Part 8: Transport Orders.......................................................................................... 34 Part 9: Powers of Police Officers and other authorised persons .............................. 36 Part 10: Provision of Treatment Generally ............................................................... 38 Part 11: Regulation of certain kinds of treatment and other Interventions ................ 41 Part 12: People in Authorised Hospitals: Health Care Generally.............................. 50 Part 13: Protection of patients rights ....................................................................... 53 Part 14: Recognition of carers rights....................................................................... 58 Part 15: Children who have a mental illness ............................................................ 61 Part 16: Complaints about mental health services ................................................... 63 Part 17: Mental Health Advocacy Service................................................................ 64 Part 18: Mental Health Tribunal (MHT) .................................................................... 69 Part 19: Review by the State Administrative Tribunal (SAT) .................................... 78 Part 20: Administration ............................................................................................ 79 Part 21: Interstate arrangements ............................................................................. 83 Part 22: Ministerial Inquiries .................................................................................... 85 Part 23: Miscellaneous Matters ............................................................................... 86 Schedule 1 .............................................................................................................. 88 Schedule 2 .............................................................................................................. 90

How to use this document

This guide is intended to assist people to understand the content of the new draft Mental Health Bill. The draft Bill has been prepared for public comment, and submissions on the draft Bill will influence any changes made before the final Bill is introduced into Parliament. Feedback from the public and particularly from affected groups is encouraged. The draft Bill and a brief summary overview are available from the Mental Health Commission website at www.mentalhealth.wa.gov.au. or by contacting the Commission. Comments on the draft Bill can be made by: Emailing the Mental Health Commission at contactus@mentalhealth.wa.gov.au Posting comments to GPO Box X2299, Perth Business Centre WA 6847, or Attending one of the consultation forums. Details will be on the Commissions website shortly or by telephoning the Commission on 6272 1200. The period for public comment closes on 9 March 2012. A note about terminology: The Act or the 1996 Act refers to the Mental Health Act 1996, which is the legislation which is currently in force. The draft Bill refers to the draft Mental Health Bill 2011. When the draft Bill is finalised it will be known as the Mental Health Bill 2011. It will be introduced into Parliament, and if it is passed by a vote of the Members of Parliament, it will become the new Mental Health Act, replacing the current Mental Health Act 1996. Structure of this document This guide provides a summary of much of what the draft Bill contains. It also provides some relevant background information and some comparisons with the 1996 Act to help explain the effects of the proposed changes. The draft Bill consists of a number of parts with divisions and subdivisions. This guide follows the same format and is divided into 23 parts, which match parts 1-23 of the draft Bill. Parts 24 and 25 - which deal with repeals, transitional matters and consequential amendments - are not included in this guide. Legislation is often not easy to read and understand. This guide is intended to reflect the important effects of the draft Bill, while being smaller and easier to read than the draft Bill. In the case of ambiguity or doubt it is best to refer to the draft Bill.

Background
The first piece of legislation in Western Australia relating to the treatment of people with mental illness was the Lunacy Act of 1871. Prior to this Act, the treatment of

people with mental illness in Western Australia was regulated by English legislation. What was remarkable about this first piece of mental health legislation in Western Australia, was provision in the Act for the protection of the rights of patients - the Colonial Surgeon could visit at any time; admission could only occur after a personal examination and had to be approved by a magistrate or Justice of the Peace; a Board to review patients was initiated as was the Board of Visitors (precursor to the present Council of Official Visitors and proposed Mental Health Advocacy Service). Further Acts in 1903, 1912 and 1917 provided for persons with mental illness wandering at large, those with alcohol problems, and for soldiers returning from the First World War with post-traumatic stress disorder. The Mental Treatment Act 1927 strengthened the notion of voluntary patients, and amendments in 1949 defined restraint and seclusion. The Mental Health Act 1962, which came into force in 1966, was predicated on the advances made in psychiatry in the 1950s, particularly in the range of new medications available. The 1962 Act reflected this optimistic view and, while doing little to improve consumer rights, did change certain terminology, such as replacing certification with referral. It also introduced a new focus on care in the community. A Mental Health Bill in 1981 and a Psychiatric Services Bill in 1986 both failed to be passed by Parliament. In 1990, the then Minister for Health established a working party to consider previous reports and to produce a discussion paper, which, after consultation, was released in 1991 as the Final Report of the Mental Health Working Party. That report formed the basis of the next piece of mental health legislation. However, due to a change of government in 1993 and further discussion about the proposed legislation, the new Act was not passed until November 1996. The 1996 Act, which is currently in force, was certainly a step forward from previous legislation. The Act introduced a specific part on patients rights and a review process for involuntary patients through the Mental Health Review Board. It provided for treatment in the community through Community Treatment Orders, expanded the advocacy services through the Council of Official Visitors, prohibited certain treatments such as deep sleep therapy and regulated others such as electroconvulsive therapy, and required a review of the Act after five years. A review of the Act was announced in November 2001. Professor DArcy Holman from the University of Western Australia was appointed to conduct the review. After an extensive consultative review, Professor Holman provided recommendations to the Government in December 2003 in a document entitled The Way Forward. That document was considered by the then Government and resulted in a Government Response to the review in October 2004. That Government accepted most of the recommendations and gave cabinet approval for drafting the Bill based on the Government response. Much of the Bill was already drafted when a new LiberalState Government came into office in September 2008. The new Government laid out a plan emphasising the importance of mental health care for people in Western Australia, which included a Minister for Mental Health, a Mental Health Commissioner, a ten year strategic plan and the introduction of a

Mental Health Bill into Parliament before the next election. While drafting recommenced in 2009, it was recognised that other jurisdictions in Australia and overseas had introduced into their legislation a more consumer based, human rights perspective. It was also noted that Australia had become a signatory to the United Nations Convention on the Rights of Persons with Disabilities (2006) and any mental health legislation would need to meet the standards set out in the Convention. In 2010, the Commissioner for Mental Health convened an expert group including carer and consumer representatives, the Chief Psychiatrist, the President of the Mental Health Review Board, the Head of the Council of Official Visitors, the Solicitor in Charge of the Mental Health Law Centre and representatives from clinical services in the metropolitan and rural areas. This group identified initiatives in other jurisdictions, met with Professor Bernadette McSherry from the Centre for Advancement of Law and Mental Health at Monash University and made a number of suggestions as to how to improve the Bill from a human rights perspective. Further recommendations were made in 2011 following input from Professor Terry Carney from Sydney Law School in relation to Mental Health Tribunals and international advisers in mental health Gregor Henderson Ltd in relation to quality assurance. Consultative forums were also held with consumers and carers, and meetings with representatives from the Department of Health, the Aboriginal Health Council of Western Australia, the Department of the Attorney General, the Office of the Public Advocate, the Royal Australian and New Zealand College of Psychiatrists and the Health and Disabilities Services Complaints Office. This draft Bill for public comment is based on the Holman recommendations as well as the more recent consultations in the last two years.

Part 1: Preliminary matters

Reading notes
Part 1 of the draft Bill provides definitions for many terms used in the Bill. Some definitions are also provided in other parts of the Bill where they are relevant. One important change from the 1996 Act is the expanded definition of mental illness. In line with a recommendation of the 2003 Holman Review, the new definition refers to internationally accepted standards of psychiatric diagnosis. These include the Diagnostic and Statistical Manual developed by the American Psychiatric Association and the International Classification of Diseases developed by the World Health Organisation. Another difference from the 1996 Act is that the objects of the draft Bill are now located in Part 2, rather than Part 1.

What is in the draft Bill?

1.1 1.2 Short title - Mental Health Act 2012. Sections 1 and 2 come into effect when the Act receives the Royal Assent and the rest of the Act on a day fixed by proclamation and different days may be fixed for different provisions. The Act binds the State and the Crown. Commencement Terms used in this Act

1.3 1.2 1.3

Below are some of the terms in the draft Bill. Admission means the admission of a patient to a hospital for the purpose of providing the patient with treatment. Advance health directive means any of the following a) an advance health directive made under the Guardianship Act Part 9B; b) an instrument recognised as such under the Guardianship Act section 110ZA; c) a directive given by a patient under the common law containing treatment decisions in respect of the patients future treatment. Approved Form means a form approved for use in this Act. Authorised Mental Health Practitioner (AMHP) meansA mental health practitioner recognised as an AMHP by the Chief Psychiatrist and whose name is published in the Gazette. Carer of a patient, means a person who is the carer of the patient under the Carers

Recognition Act 2004 section 5. Child means a person under 18 years of age. Child and adolescent psychiatrist means a psychiatrist who has qualifications and clinical training in the treatment of mental illness in children. Chief Mental Health Advocate means the person lawfully holding, acting in or performing the functions of the office of Chief Mental Health Advocate. Chief Psychiatrist means the person lawfully holding, acting in or performing the functions of the office of Chief Psychiatrist. General hospital means a hospital, as defined in the Hospitals and Health Services Act 1927 section 2(1), where overnight accommodation is provided to patients except in an authorised hospital, a maternity home or a nursing home. Health and Disabilities Services Complaints Office means the Office referred to in the Health and Disability Services (Complaints) Act 1995 28 section 7(1). Medical Practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession. Mental health advocate means a) the Chief Mental Health Advocate; or b) a person lawfully holding, acting in or performing the functions of the office of mental health advocate Mental Health Practitioner means a) a psychologist; or b) a person registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing and midwifery profession; or c) a person registered as an occupational therapist under the Occupational Therapists Act 2005; or d) a person with a qualification such as social work from an Australian University or equivalent qualification recognized by the Chief Psychiatrist and published in the Gazette; and e) who has at least 3 years experience in the management of people who have a mental illness. Mental health service means any of these things a) a hospital; b) a psychiatric out-patients clinic; c) a community mental health service; d) a health service that provides treatment or care to people who have or may have a mental illness; e) a private psychiatric hostel; f) an agency that provides community support services to people who have or may have a mental illness.

Neurosurgeon means a person a) whose name is contained in the register of specialist surgeons kept by the Medical Board of Australia under the Health Practitioner Regulation National Law (Western Australia) section 223; and b) who has clinical training in neurosurgery. Patients psychiatrist means a) if the patient is a voluntary patient, the treating psychiatrist; or b) if the patient is an involuntary patient in respect of whom an in-patient treatment order is in force, the treating psychiatrist; or c) if the patient is an involuntary patient in respect of whom a community treatment order is in force, the supervising psychiatrist; or d) if the patient is a mentally impaired accused who must be detained at an authorised hospital because of a determination made under the CL(MIA) Act section 25(1)(b) or amended under section 26 of that Act, the treating psychiatrist. Police officer includes an Aboriginal police liaison officer who is authorised to exercise the powers of a police officer under this Act. Staff member, of a mental health service, means a person who a) is employed in a mental health service under a contract of employment or contract of training; or b) provides services to a mental health service under a contract for services. Treating psychiatrist, in relation to a patient, means the psychiatrist who is in charge of the patients treatment. Treatment means the provision of psychiatric, medical, psychological, social or other therapeutic intervention intended to alleviate or prevent deterioration of mental illness or a condition that is a consequence of a mental illness. Treatment in the community means treatment that is able to be provided to a patient without detaining the patient at a hospital under an in-patient treatment order. Voluntary patient means a person who is being provided with treatment but is not an involuntary patient; or a mentally impaired accused who must be detained at an authorised hospital. 1.4 Mental illness 1.4.1 A person has a mental illness if the person has a condition that is characterised by a disturbance of thought, mood, volition, perception, orientation or memory that significantly impairs (temporarily or permanently) the persons judgement or behaviour. 1.4.2 A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations, such as the Diagnostic and Statistical Manual IV or the International Classification of Diseases 10.

1.4.3 A person does not have a mental illness merely because one of the following appliesa) the person holds, or refuses or fails to hold a particular religious, cultural, political or philosophical belief or opinion; b) the person engages in, or refuses or fails to engage in, a particular religious, cultural or political activity; c) the person is, or is not, a member of a particular, religious, cultural or racial group; d) the person has, or does not have, a particular political, economic or social status; e) the person has a particular sexual preference or orientation; f) the person is sexually promiscuous; g) the person engages in indecent, immoral or illegal conduct; h) the person has an intellectual disability; i) the person uses alcohol or other drugs; j) the person is involved in, or has been involved in, family or professional conflict; k) the person engages in anti-social behaviour; l) the person has at any time been treated for a mental illness or admitted or detained at a hospital for the purpose of treating the person for a mental illness.

Part 2: Objects.
Reading notes
The objects of a piece of legislation explain what it is intended to do. The 1996 Act contains three objects. The draft Bill expands these to include reference to recognising the role of carers and facilitating the involvement of people experiencing mental illness in decision making.

What is in the draft Bill?

Objects a) to ensure people who have a mental illness receive the best possible treatment and care with the least possible restriction of their freedom; and the least possible interference with their rights and dignity; b) to recognise the role of carers in the treatment, care and support of people who have a mental illness; c) to recognise and facilitate the involvement of people who have a mental illness, their nominated persons and their carers in consideration of their options that are available for their treatment and care; d) to help minimise the effect of mental illness on family life; e) to ensure the protection of people who have or may have a mental illness; f) to ensure the protection of the community. 2.2 Anyone, including a service, performing a function under this Act must have regard to these objects.

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Part 3: Mental Health Care Charter

Reading notes
Part 3 of the draft Bill deals with the proposed Mental Health Care Charter. The Charter is a set of principles to guide the delivery of mental health services. Part 3 obliges people making decisions under the Act to have regard to, and make every effort to comply with, the Charter. The Charter itself is set out in Schedule 1 of the draft Bill. Note that the Charter updates and replaces the principles of the Act that were a recommendation of the 2003 Holman Review of the 1996 Act. The 1996 Act does not contain principles or a Charter.

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Part 4: Informed consent to admission and treatment

Reading notes
Part 4 of the draft Bill deals with informed consent to admission and treatment. This Part builds on and updates Part 5 Division 2 of the 1996 Act. Significant proposed changes from the 1996 Act include: More detailed requirements regarding the advice and assistance that must be provided to support decision making by the patient; The introduction of an approved form for recording consent to treatment; and A right to have another person present during the decision making process.

What is in the draft Bill?

4.1 Informed consent may be given by the person proposed to be admitted or treated or if that person does not have capacity to consent, the person who is authorised by law to consent on the persons behalf. A number of requirements are set out and notes that a purported waiver of these requirements has no effect or a failure to offer resistance does not by itself constitute consent. The requirements are that: a) The person must have the capacity to give informed consent which means that the person must be able to understand the information and advice; b) Understand the nature and effect of the admission or treatment; c) Be able to freely and voluntarily make decisions; and d) Communicate those decisions. The consent must be freely given and must not be obtained by force, threat, intimidation, inducement, deception or exercise of authority. The consent must be in an approved form and signed by the person. Before a person is asked whether or not the person gives consent the person is provided with: a) a clear explanation of the nature, purpose and likely duration of the admission or treatment that includes sufficient information to enable the person to make a reasonable decision about whether or not to give consent; b) An adequate description, without exaggeration, concealment or distortion of the expected benefits and possible discomforts and risks of the admission or treatment; c) An adequate description of the alternatives to the admission or treatment that are reasonably available; d) Information about any financial advantage that may be gained by any medical practitioner or mental health service other than any fees or charges payable by or on behalf of the person for admission or treatment; e) Information about any research relationship between any medical practitioner and any mental health service that may be relevant to the admission or treatment;

4.2

4.3

4.4 4.5

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f &g)The person should be advised that they may obtain independent legal and medical advice before giving consent and the person may request reasonable assistance to obtain that advice; h &i) The opportunity to ask questions and receive clear answers about the admission or treatment; and j) Advise the person that he or she may refuse to give consent or if they have given consent withdraw that consent at any time. 4.6 Any information or advice given should be in a language, form of communication and terms the person is likely to understand. Before consent is given the person must be given adequate time to consider the information and advice provided and may request that another person be present when the information is provided or when consent is given. The person who has given consent may request the presence of another person when they wish to withdraw the consent and that request must be complied with. A record must be kept in the patients medical record that if the person is a voluntary patient the requirements outlined above are complied with including whether the person gives informed consent and whether they withdraw that consent. If the person is an involuntary patient, that should be noted, in their medical record. If a person has a guardian who is authorised to consent to admission and treatment on the persons behalf, their consent or their refusal to give consent is not relevant to the psychiatrist deciding whether the person should be made an involuntary patient, be given electroconvulsive therapy or psychosurgery. Only the person can consent and if they do not consent involuntary referral, admission and treatment under the Act would need to be considered.

4.7

4.8

4.9

4.10

4.11

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Part 5: Involuntary Patients

Reading notes
Part 5 of the draft Bill deals with a number of matters relating to involuntary patients. These matters include the types of involuntary orders that may be made, the criteria for making a person an involuntary patient, and processes for assessments, referrals and examinations. Significant proposed changes from the 1996 Act include: Removal of references to damage to property and self-inflicted harm to finances, relationships and reputation as grounds for involuntary treatment; Introduction of the concept of unreasonable refusal of treatment to ensure that people who have reasonable grounds for refusing treatment are not made involuntary; Provision for a Community Treatment Order (CTO) to be made for the purpose of preventing mental or physical deterioration; Authority to restrain and detain a referred person, which will provide statutory certainty when managing patients with behavioural symptoms of illness; Timeframes for referral have been reduced from seven days to 72 hours; Provision for the extension of timeframes in regional and remote areas, reflecting the practicalities of accessing treatment in a large state; and Enabling the Chief Psychiatrist to approve a person being made an involuntary patient while in a general hospital. This will enable patients to continue receiving treatment for a physical illness while also being treated for their mental illness.

What is in the draft Bill?

5.1 When a person will be an involuntary patient.

5.1.1 An involuntary patient is a person who is subject to an Involuntary Treatment Order (ITO) and either detained in a General Hospital if the person has a medical condition which needs treatment in a General Hospital, or an Authorised Hospital or on a CTO. 5.1.2 An ITO can only be made by a psychiatrist, who having considered the criteria for making such an order is satisfied that a person is in need of an ITO. 5.1.3 The psychiatrist must consider whether it would be possible for treatment to be provided through a community treatment order and only make a detaining order if that is not possible. 5.1.4 A psychiatrist must only make an involuntary order on a child if satisfied that it is in the best interest of the child. 5.1.5 An involuntary treatment order made in respect of a person a) must be in force for as brief a period as practicable; and

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b) must be reviewed regularly; and c) must cease to be in force as soon as the person no longer meets criteria for the order.

the

5.1.6 The criteria for making an inpatient ITO are thata) the person has a mental illness which needs treatment; b) there is a significant risk to the health, safety or welfare of the person or to the safety of another person; c) that because of the nature of the mental illness the person does not have the capacity as described in the part on informed consent or the person has unreasonably refused treatment; d) that, because of the persons mental or physical condition or another reason, treatment in the community is not reasonably able to be provided; e) the person is unable to be adequately provided with treatment in a way that would involve less restriction on the persons freedom of choice and movement than making an inpatient treatment order. The criteria for making a Community Treatment Order are in Part 7. 5.2 Referrals for examination

5.2.1 Either a medical practitioner or an Authorised Mental Health Practitioner (together Practitioner) who suspects on reasonable grounds that a person is in need of an involuntary treatment order may refer the person either to an authorised hospital or a place that is not an authorised hospital if in the practitioners opinion it is an appropriate place where an examination can be conducted. 5.2.2 The Practitioner referring the person must make arrangements to enable the examination to be conducted at that place such as ensuring a psychiatrist is available at the place to conduct an examination. 5.2.3 The referral will be on an approved form (Referral Form) and when the referral is to an authorised hospital will further permit the person to be detained at the authorised hospital for up to 24 hours so that the person is examined by a psychiatrist. 5.2.4 The Referral Order must be made within 48 hours of examining the person and expires after 72 hours if the person has not been taken to the authorised hospital or other place (note that under the 1996 Act the referral order expires after 7 days). 5.2.5 In relation to places in the state deemed as declared areas the Referral Order may be extended for a further 72 hours either by the referrer or a practitioner who having considered the matter decides that the Referral Order needs to be extended. 5.2.6 Whether the referral is to an authorised hospital or a place that is not an authorised hospital, the patient must receive a copy of the Referral Form, which should omit the information provided to the practitioner by another

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person such as a relative if there are concerns regarding a breach of confidentiality. 5.3 Detaining and referring a voluntary patient in an Authorised Hospital

5.3.1 If a person in charge of a ward in an Authorised Hospital suspects on reasonable grounds that a voluntary patient is in need of an involuntary treatment order, for example where the patient wants to be discharged from the hospital against medical advice or he or she meets the criteria for involuntary treatment, the person in charge may make an order in an approved form for an assessment by a Medical Practitioner or Authorised Mental Health Practitioner (Practitioner). 5.3.2 Having made such an order, the person in charge can also if needed make an order authorising the patients detention at the hospital for up to 6 hours to enable the assessment to be conducted. The patient must get a copy of the referral and detaining order. 5.3.3 If by the end of the 6 hours an assessment has not been completed or an assessment completed but no referral made, then the patient cannot be detained any longer. 5.3.4 The Practitioner may, after completing an assessment, refer the patient on the approved form to be examined by a psychiatrist. The patient can be detained at the authorised hospital for 24 hours from the time the person in charge of the ward refers the person for an assessment. 5.3.5 A Referral Order must be made immediately after the assessment is completed. 5.3.6 At any time between the assessment being completed by the Practitioner and the time of examination by a psychiatrist, a Practitioner (not necessarily the referring practitioner) may revoke the Referral Order if he or she is satisfied that the patient is no longer in need of an involuntary treatment order. 5.3.7 A Practitioner must not revoke the Referral Order unless that Practitioner has consulted with the Practitioner who made the Referral Order. If, having made reasonable attempts to contact the referring Practitioner, the Practitioner is unable to contact him or her, the Practitioner may make an order revoking the Referral Order and must give the patient a copy of that order. The patient then, like any voluntary patient, may remain in hospital or discharge him or herself. 5.3.8 A voluntary inpatient in either an authorised or non-authorised hospital may be examined by a practitioner who can, if they suspect the person needs to be made an involuntary patient, refer the person to a psychiatrist at the hospital for examination. 5.3.9 The person in charge must make sure that the voluntary in-patient has the opportunity and the means to contact the patients nominated person, the

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patients carer or the Mental Health Advocacy Service as soon as practicable after the order is made and at all reasonable times during the period of detention. 5.4 Conduct of assessment

5.4.1 The practitioner and the person being assessed must be in one anothers physical presence or, if that is not practicable, must be able to hear one another without using a communication device (for example, by being able to hear one another through a door). 5.4.2 Information obtained from the assessment can come directly from the person being assessed and also from other sources. However, information obtained only from other sources is not sufficient in itself to constitute grounds for suspecting the person is in need of an involuntary treatment order. 5.4.3 A referral must be done within 48 hours of completing an assessment. 5.4.4 The referral must be done on an approved form which specifies the date and time it was made; the authorised hospital or other place the person is referred to; the date and time the assessment was conducted; the information obtained during the assessment from the person and information received from other sources which forms the basis of the reasonable suspicion that the person is in need of involuntary treatment. 5.5 Detaining a Referred Person

5.5.1 In addition to making a Referral Order, the Practitioner may make an order on an approved form (Detaining a Referred Person) for the person to be detained for up to 6 hours from the time the referral was made if the Practitioner is satisfied that, because of the persons mental or physical condition, the person needs to be detained to enable the person to be taken to the authorised hospital or other place. 5.5.2 If the person has not been transported to the authorised hospital or other place within those 6 hours, a Practitioner (not necessarily the Practitioner who completed the referral or first detaining order) can assess the person and if the Practitioner is satisfied that because of the persons mental or physical condition the person still needs to be detained, the detaining order can be extended for a further 6 hours. This process can occur again before the end of any subsequent 6 hour period to a maximum of 72 hours. 5.5.3 If by the end of the 72 hours after the Referral Order was made the person has not been taken to the authorised hospital or other place, the person cannot be detained any longer. 5.5.4 The patient must be given a copy of a Detaining a Referred Person Form for the initial and any subsequent periods of detention. 5.5.5 A practitioner who makes a detaining order must ensure that the person has

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the opportunity and the means to contact the persons nominated person, the persons carer or the Mental Health Advocacy Service as soon as practicable after the order is made; and at all reasonable times during the period of detention. 5.5.6 A Practitioner (but not necessarily the Practitioner who completed the Referral Form) may, if satisfied that the referred person is no longer in need of an involuntary treatment order, revoke a Referral Order and complete an approved form (Revocation of Referral Order). 5.5.7 The Practitioner who revokes the Referral Order must, if the Referral Order is made by another Practitioner, take reasonable steps to contact and consult with the referrer. 5.5.8 If the referrer is unable to be contacted, the Referral Order may still be revoked and a note to that effect made on the approved form. 5.5.9 A copy of the Revocation of Referral Order Form must be given to the person. 5.6 Patient on a Community Treatment Order

5.6.1 If the person referred is currently on a community treatment order (CTO), the CTO is suspended for the period from when the Referral Order was made to when: a) the psychiatrist makes the person subject to an in-patient treatment order; or b) decides not to detain the person; or c) when the 24 hour period at either an authorised hospital or other place has expired without an examination by a psychiatrist; or d) the 6 hour detaining period lapses with no further detaining orders made; or e) the Referral Order is revoked. 5.6.2 Apart from the first option of the psychiatrist making the person subject to an in-patient treatment order, the CTO comes into effect again as a consequence of any of the above actions. 5.6.3 If the person becomes a voluntary patient in an authorised hospital, the CTO remains suspended until the person is discharged. Upon discharge, the CTO again comes into force unless revoked during the persons voluntary admission. If the person is a voluntary patient in a hospital other than an authorised hospital, the CTO continues to have effect. 5.7 Transporting a Referred person

5.7.1 If the person is not in police custody, a Practitioner may make an order (Transport Order) in the approved form authorising that the person be apprehended and transported to the authorised hospital or other place by either a police officer or a person prescribed by the regulations.

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5.7.2 The Practitioner can only make a Transport Order if, because of the persons mental or physical condition, there is no other safer means of taking the person to the authorised hospital or other place. Details with regard to Transport Orders are in Part 8 5.8 Examination at an Authorised Hospital

5.8.1 The referred person must be received at the authorised hospital within 72 hours of the Referral Order being made or the Referral Order being extended. 5.8.2 The referred person can be detained at the authorised hospital for up to 24 hours from the time the person is received for examination by a psychiatrist. 5.8.3 In relation to declared areas if it has not been possible to complete a psychiatric examination in the 24 hour period, a medical practitioner or an authorised mental health practitioner can on an approved form extend the period of detention for a further 48 hours from the time the referral order would lapse. A declared area is an area of the State declared as such by the Minister for Mental Health and published in the Government Gazette. 5.8.4 If at the end of 24 hours or 72 hours if the order is extended the person has not been examined by a psychiatrist the Referral Order lapses and the person cannot be detained any longer. 5.8.5 The person in charge of the hospital must ensure that as soon as is practicable after the referred person is detained in the authorised hospital the Mental Health Advocacy Service is informed of the detention. 5.8.6 The psychiatrist and the person being examined must be in one anothers physical presence. 5.8.7 In making his or her decision the psychiatrist may take into account information from sources other than the patient, however that information in itself cannot be the only grounds for making the person an involuntary patient. 5.8.8 Following an examination by a psychiatrist, the psychiatrist must make one of the following orders in the approved forma) an in-patient treatment order authorising the persons detention for up to 21 days if the person is over 18 years of age and up to 14 days if the person is below the age of 18 (Part 6); (this was previously 28 days for adults and children) b) a CTO (unless the person is already on a CTO)(Part 7); c) an order authorising the persons continued detention for a specific time which cannot be longer than 72 hours from the time the person was received into the hospital or, if the person is a voluntary patient in an Authorised Hospital, from the time the Referral Order was made in order for a further examination to occur; d) an order that the person can no longer be detained.

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5.8.9 The referred person must be given a copy of the order. 5.8.10 If an involuntary treatment order is made in respect of a mentally impaired accused (MIA) then the MIA Review Board must be informed as soon as is practicable. 5.9 Examination at a place that is not an Authorised Hospital

5.9.1 The referred person must be received into the other place within 72 hours from the time the Referral Order was made or the Referral Order was extended and may be detained there for up to 24 hours so that he or she can be examined by a psychiatrist. If that has not occurred or if it has occurred but no other order has been made the person cannot be detained any longer. 5.9.2 However, if the place the person has been referred to is in a declared area and it is not practicable for the examination to be completed by a psychiatrist within 24 hours, the Practitioner (Medical or Authorised Mental Health Practitioner) may make an order on an approved form extending the detention for an additional 48 hours from the end of the 24 hour period to enable the examination to be completed. The person must be given a copy of the order and have the opportunity to contact their nominated person, carer or the Mental Health Advocacy Service as soon as practicable after the order was made and at any reasonable times during the detention. 5.9.3 A declared area is an area of the State declared as such by the Minister for Mental Health and published in the Government Gazette. 5.9.4 On completing the examination, the psychiatrist must make one of the following orders in the approved forma) an in-patient treatment order authorising the persons detention in a general hospital, if the psychiatrist is satisfied that attempting to take the person to an authorised hospital poses a significant risk to the persons physical health and the Chief Psychiatrist has given consent to the making of the order; b) a CTO; c) an order authorising the persons reception and detention in an authorised hospital to enable an examination to be conducted by a psychiatrist at the hospital; or d) an order that the person cannot be detained any longer. 5.9.5 A copy of the order must be given to the person. 5.9.6 In relation to a) and c) above, a Practitioner may make an order authorising the persons continued detention for up to 6 hours from the time the psychiatrist made the order if the Practitioner is satisfied that, because of the persons mental or physical condition, the person needs to be detained to enable the person to be taken to a general or authorised hospital. 5.9.7 If the person is already in a General Hospital the in-patient treatment order takes immediate effect and the person can be detained like any involuntary

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detained patient. 5.9.8 Immediately before the end of the 6 hour detention period, the Practitioner may authorise the continued detention of the person for a further 6 hours if the Practitioner is satisfied that because of the persons mental or physical condition, the person still needs to be detained to enable transfer to the hospital. This can reoccur for up to 72 hours. After that time the person can no longer be detained. 5.9.9 If the detention period is extended the referred person must be given the opportunity to contact their nominated person, their carer or the Mental Health Advocacy Service as soon as practicable after the order was made and at any reasonable time during the detention. 5.10 Transport Order

5.10.1 The Practitioner may make an order for the person to be apprehended and transported either by a police officer or a person prescribed in the regulations if the persons mental or physical condition is such that there is no other safe means of taking the person to the general or authorised hospital. A copy of the order must be given to the person. 5.10.2 Once apprehended, the person must be transported as soon as is practicable and in any event within 72 hours of the order being made. The person continues to be detained until the person is received by the general or authorised hospital or the 72 hour time period expires unless the Transport Order has been extended. 5.10.3 A Practitioner may make an order revoking the Transport Order if it is no longer needed and must give the person a copy of the order. 5.10.4 If under 5.9.4 the psychiatrist makes an order pursuant to c), then the person needs to be transported, received and detained at the authorised hospital indicated on the form. 5.10.5 The person must be received within 72 hours from the time the order for the person to be received or detained at the authorised hospital is made unless the Transport Order has been extended. 5.11 Being received into an authorised hospital

5.11.1 Having been received, the person may be detained for up to 24 hours for an examination by a psychiatrist. If a referred person was examined by a psychiatrist having been referred to a place that is not an authorised hospital, and an order made for the persons reception and detention in an authorised hospital, then the period of detention in the authorised hospital to see a psychiatrist is up to 72 hours. 5.11.2 The person in charge of the hospital must ensure that as soon as is practicable the Mental Health Advocacy Service is notified of the detention.

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5.11.3 The psychiatrist who examines the person may makea) an in-patient treatment order authorising the person be detained for up to 21 days, and for a child up to 7 days, in order to receive treatment for their mental illness; b) a CTO; c) an order that the person be no longer detained. 5.11.4 A copy of any order made must be given to the person and their carer or nominated person. 5.11.5 If a) or b) is the decision of the psychiatrist the person in charge of the hospital must ensure that the Mental Health Advocacy Service is informed. 5.12 In-patient treatment order authorising detention in a general hospital. Note that the option of detaining a person as an involuntary detained patient in a General Hospital is a new process in the legislation

5.12.1 A psychiatrist may authorise that a person who is subject to an in-patient involuntary treatment order be detained in a general hospital by completing the approved form. 5.12.2 The person must require treatment for a physical condition and the psychiatrist is satisfied that attempting to take the person to an authorised hospital poses a significant risk to the persons physical health. 5.12.3 The Chief Psychiatrist must consent to the order being made. 5.12.4 The detained involuntary patient must be given the opportunity to contact their nominated person, their carer or the Mental Health Advocacy Service as soon as practicable after the order was made and at any reasonable time during the detention 5.12.5 At the end of each successive 14 day period that the person is detained in the general hospital, the psychiatrist must provide a report to the Chief Psychiatrist about the persons mental and physical condition, and the psychiatric, medical or surgical treatment the person is receiving. An approved form will be provided for this process. 5.12.6 Once the psychiatrist is satisfied, having consulted with other medical practitioners or health care providers responsible for any medical or surgical treatment, that attempting to take the person to an authorised hospital no longer poses a significant risk to the persons physical health, then as soon as is practicable, the psychiatrist must complete a Transfer Order on the approved form ordering transfer of the person from the general hospital to an authorised hospital. A copy of the transfer order will be given to the patient. 5.12.7 Guidelines will be published on this process.

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5.13

Examination without referral (to be read in conjunction with Part 7)

5.13.1 Independent of a referral from a Practitioner, a psychiatrist may when examining a person make the person subject to a CTO if he or she meets the criteria. In this case no referral process or form is necessary. 5.13.2 The psychiatrist must give the person a copy of the CTO. 5.13.3 The CTO must be confirmed within 72 hours by another psychiatrist or Practitioner. If the order is not confirmed within 72 hours the CTO ceases to be in force. 5.13.4 The supervising psychiatrist must inform the person that the CTO has been confirmed and give the person and their carer or nominated person a copy of the confirmed order. 5.13.5 The involuntary patient must be given information regarding their right to contact their nominated person, their carer or the Mental Health Advocacy Service as soon as practicable after the order was made and at any reasonable time during the life of the order.

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Part 6: Detention for examination or treatment

Reading notes
Unlike the 1996 Act, the draft Bill deals with detention separately from involuntary status. Part 6 of the draft Bill sets out the timeframes for detention and details processes relating to release from hospital, persons who abscond and leaves of absence. A major area of difference from the 1996 Act is the maximum timeframes for detention. Under the draft Bill, initial inpatient treatment orders may be for up to 21 days, reduced from 28 days under the 1996 Act. The maximum duration of an extension order is reduced from six months under the 1996 Act to three months. For children, the maximum initial period is reduced to 14 days with extensions of up to 28 days. This is a change from the 1996 Act, which doesnt distinguish between children and adults.

What is in the draft Bill?

6.1 Detention periods

6.1.1 An initial in-patient treatment order lasts, in relation to a person over the age of 18, up to 21 days. For a patient under 18, (a child), it lasts up to 14 days. 6.1.2 As close as practicable to the date when the detention order ends, but no earlier than 7 days before that date, a psychiatrist must examine the patient and make one of the following orders in the approved form a) an order extending the detention period for up to 3 months for adults and 28 days for children, if satisfied that the patient, having regard to the criteria for involuntary detained status, is still in need of the in-patient treatment order; b) a CTO, if satisfied that the patient does not require an in-patient treatment order but does need a CTO to ensure treatment in the community; or c) an order revoking the in-patient treatment order if satisfied that the patient is no longer in need of an involuntary treatment order. 6.1.3 If the psychiatrist decides to implement a) above then as close as practicable to the date the extension ends, but no earlier than 7 days before that date, the psychiatrist must examine the patient and may make any of the above 3 decisions. 6.1.4 At any time and without examining the patient the psychiatrist can place the involuntarily detained patient on a CTO, or can revoke an in-patient treatment order. 6.1.5 If a detaining order lapses, the psychiatrist must, as soon as is practicable, inform the patient that he or she is no longer an involuntary patient and the patient must be allowed to leave if they wish to.

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6.1.6 Any order made must be put on the patients medical record and a copy given to the person and their carer/nominated person. 6.1.7 If the person cannot be detained any longer under the Act but is subject to an order made under another law of the State, the Commonwealth, another State or Territory which requires that the person be kept in custody, the person must not be allowed to leave the hospital or other place until the person has been delivered into that custody. 6.2 Transfer between authorised hospitals

6.2.1 A psychiatrist may make a transfer order authorising the transfer of a detained person (either a referred person or a patient on an in-patient treatment order) from the authorised hospital to another authorised hospital specified on the order. 6.2.2 The transfer order must be put on the persons medical record and a copy given to the person and their carer/nominated person. 6.2.3 The psychiatrist may make a transport order authorising a police officer or a person prescribed in the regulations to transport the person if the psychiatrist is satisfied that there are no other safe means of taking the person to the other hospital. 6.2.4 A copy of the transfer order must be put on the persons medical record and a copy given to the person and their carer/nominated person. 6.2.5 The transport order is valid for a period of 72 hours. However, if the police officer or other person prescribed by the Regulations is of the opinion that the order may lapse before the person is received at the other hospital, they may orally request a psychiatrist at the hospital from which the person is being transported to extend the transport period until the person is received at the other hospital. The extension cannot be longer than 72 hours. The extension order must be put on the persons medical record and a copy given to the person. 6.2.6 A Practitioner may make an order revoking the transport order if satisfied that the transport order is no longer needed. The order must be put on the persons medical record and a copy given to the person and to the police or person prescribed by the regulations. 6.3 Leave of absence

6.3.1 A psychiatrist may grant leave of absence to an involuntary detained patient to enable the patient to obtain medical or surgical treatment or if it will likely benefit the patients health in some way and is not inconsistent with the patients need to be provided with treatment. 6.3.2 Before granting leave, the psychiatrist must consider whether it would be more appropriate to make an order revoking the involuntary treatment order or make

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the patient subject to a CTO. 6.3.3 The psychiatrist completes a form which authorises the patients absence from the hospital for a specific period and maybe subject to some conditions such as residing in a particular place, taking specific medication or attending at a specific place to enable the patient to be provided with specified treatment. 6.3.4 The order must be put on the patients medical record and a copy given to the patient. 6.3.5 The psychiatrist may make a further order extending the leave or varying the conditions on which the leave has been granted. As soon as is practicable, the order must be put on the patients medical record and a copy given to the patient. 6.3.6 If the patient is away from the hospital on leave for more than 28 days, the psychiatrist must consider whether it would be appropriate to either revoke the involuntary treatment order or to make the patient subject to a CTO. To make this decision the psychiatrist may make any enquiries which he or she considers appropriate. 6.3.7 If the psychiatrist is provided with an opinion from another psychiatrist or a Practitioner which indicates that the patient is no longer in need of an inpatient treatment order, the psychiatrist may revoke the involuntary treatment order or make the patient subject to a CTO without examining the patient. 6.3.8 If while the patient is on leave, a psychiatrist forms the reasonable belief that it is inappropriate for the patient to remain on leave, the psychiatrist may make an order cancelling the leave and as soon as is practicable put the order on the patients medical record and give a copy to the patient. If the patient refuses to return from leave he or she would be considered to be absent without leave. 6.3.9 If a patient has been granted leave in order to receive medical or surgical treatment at a general hospital and that leave has now come to an end or been cancelled, the patient must return either to the authorised hospital from which he or she came, or go to the authorised hospital to which the patients transfer has been ordered. 6.3.10 A Practitioner may authorise a police officer or a person prescribed by the regulations to transport the person from the general hospital to the authorised hospital if he or she is satisfied that there are no other safe means of taking the patient to the hospital. 6.3.11 The transport order remains in force until the person is received at the hospital or until the order expires (which is 72 hours from the time it was made, unless extended). 6.3.12 If while the patient is being transported it is noted that the order may expire before the destination is reached, then the police officer or other person

26

prescribed by the regulations may orally request a Practitioner at the hospital from which the patient is being transported to extend the order for up to 72 hours. The extension order must be put on the persons medical record, and a copy given to the police officer or person prescribed by the regulations. 6.3.13 A Practitioner may revoke a transport order if the practitioner is satisfied that the transport order is no longer needed. The order must be put on the patients medical record and a copy given to the patient and the police or person prescribed by the regulations. 6.4 Absconding from hospital or other place

6.4.1 Either a referred person or a patient subject to an in-patient treatment order or a patient on a CTO who is at a place under an Order to Attend who absconds may be apprehended by a police officer with the authority of the person in charge of the hospital or a psychiatrist, or by a person prescribed by the regulations, and returned to the hospital or place from which they absconded. 6.4.2 This includes patients on in-patient treatment orders who, having been granted leave, fail to return to the hospital at the end of the leave period or where the leave is cancelled. 6.4.3 The person in charge of the hospital or a psychiatrist may make an Apprehension and Return Order on an approved form. 6.4.4 In order to carry out the Apprehension and Return Order the police officer or other person may enter any premises in which the person is suspected to be and may seize anything in the persons possession that the person is likely to use in a way that would result in physical injury to the person or another person, or a threat to the health and safety of that person or another person, or damage to property. 6.4.5 As soon as is practicable, the police officer or other person authorised must take the person back to the hospital or other place from which the person absconded.

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Part 7: Community Treatment Orders

Reading Notes
A CTO authorises involuntary treatment in a community setting. A person on a CTO is referred to as an Involuntary Community Patient. The criteria for making a CTO are set out in Part 5 Involuntary patients. Part 7 deals with other matters relevant to CTOs, including the things a psychiatrist must be satisfied of before making a CTO, the things that must be included in the terms of a CTO, and operational processes and procedures where a CTO is breached.

What is in the draft Bill?

7.1 Preliminary Matters.

7.1.1 A CTO is an involuntary treatment order under which a person can be provided with treatment in the community. 7.1.2 Treatment in the community means treatment that is able to be provided to a patient without detaining the patient at a hospital under an in-patient treatment order.

7.1.3 The criteria for making a CTO are thata) the person has a mental illness which needs treatment and there is a significant risk to the health, safety or welfare of the person or to the safety of another person or a significant risk of the person suffering serious physical or mental deterioration; b) that because of the nature of the mental illness the person does not have the capacity as described in the part on consent or the person has unreasonably refused treatment; c) that treatment in the community can reasonably be provided to the person; d) the person is unable to be adequately provided with treatment in a way that would involve less restriction on the persons freedom of choice and movement than making a community treatment order. 7.2 Making an order

7.2.1 A psychiatrist must not make a CTO unless he or she is satisfied that: a) treatment in the community would not be inconsistent with the persons need for treatment as described in the criteria for making a CTO; b) suitable arrangements are able to be made for the care of the person in the community; c) a psychiatrist is available and willing to be the supervising psychiatrist under the order; d) a Practitioner (either a medical practitioner, including a psychiatrist or a mental health practitioner) is available and willing to be the treating practitioner under the order.

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7.2.2 The terms of a CTO must includea) the name of the psychiatrist who will be the supervising psychiatrist; b) a treatment plan that outlines the treatment that will be given to the patient and include details like where and when the treatment will be provided and any other matter that the psychiatrist thinks it is appropriate to include; c) the name of the Practitioner who will be the treating practitioner; d) the period for which the order will remain in force which cannot be longer than three months; e) a requirement that the patient will notify the supervising psychiatrist or treating practitioner of any change of home address; f) a requirement that the patient will notify the supervising psychiatrist or treating practitioner of any interstate or overseas travel at least 7 days before the departure or, if the patient needs to travel urgently, as soon as is practicable. 7.3 Operation of Order

7.3.1 A CTO remains in force until the first of the following occursa) the period on the order (or a continuation order) ends; b) the supervising psychiatrist revokes the order and makes the person no longer subject to an involuntary treatment order in the community; c) the supervising psychiatrist makes an in-patient order because, although the patient still needs to be an involuntary patient, treatment in the community can no longer be provided. This may be done after an examination, at any time while the CTO is in force, following non-compliance after a breach order is issued, or if the patient does not comply with an order to attend; d) a psychiatrist makes an in-patient treatment order at any time which will in effect cancel the CTO or when a Referral Order is made and the CTO suspended. 7.3.2 A patient on a CTO must be reviewed monthly by the supervising psychiatrist, which can be done by audio-visual means. If the supervising psychiatrist is unavailable he or she can make a request that a medical practitioner or mental health practitioner carry out the review, but not by audio-visual means. This review must be carried out within 14 days of the end of that monthly period. 7.3.3 The medical or mental health practitioner must provide the supervising psychiatrist with a written report, which must include a recommendation as to whether the patient still needs an involuntary treatment order. 7.3.4 If more than 2 months has elapsed since the supervising psychiatrist examined the patient, then the alternative of using a medical or mental health practitioner for the monthly review is not available. In effect, the supervising psychiatrist must, at a minimum, review the patient once very 3 months. However, the supervising psychiatrist can use audio-visual means. 7.3.5 Part of the purpose of the monthly review is to determine whether the patient still needs to be on a CTO. If the patient no longer meets the criteria for making a CTO or does not fulfil the requirements under 7.1.3 then the person should be taken off the order. This can be done by the supervising

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psychiatrist without personally examining the patient. 7.4 Continuation Order

7.4.1 As near as practicable, but no earlier than 7 days, from when the CTO is due to end, the supervising psychiatrist may examine the patient either personally or by audiovisual means and may continue the order for a further period not exceeding 3 months. 7.4.2 The patient must be given a CTO continuation order. 7.4.3 If a supervising psychiatrist makes a CTO continuation order, the patient may ask the psychiatrist in writing to obtain the opinion of another psychiatrist about whether it was appropriate to continue the CTO. 7.4.4 In arranging for this independent second opinion the supervising psychiatrist must have regard to the Guidelines to be published by the Chief Psychiatrist. 7.4.5 In providing an opinion, the other psychiatrist must examine the patient, which can be done by audio-visual means, and provide the opinion in writing. 7.4.6 If the written opinion has not been obtained within 14 days from when the patients request was received or does not confirm that that the continuation was appropriate, then the continuation order is no longer in force. 7.4.7 If the opinion is not obtained because the patient did not attend for examination by the other psychiatrist, then the CTO continuation order remains in force. 7.5 Varying the CTO and changing the supervising psychiatrist or treating practitioner

7.5.1 At any time a CTO is in force, the supervising psychiatrist may make an order to vary the terms of the order, such as changing the treatment plan or notification requirements. 7.5.2 The supervising psychiatrist may transfer his or her responsibility under the CTO to another psychiatrist and the patient must be informed of this change. 7.5.3 The Chief Psychiatrist or a person authorised by the Chief Psychiatrist may, in writing, transfer the responsibility of a supervising psychiatrist to another psychiatrist. 7.5.4 The supervising psychiatrist may transfer the responsibility of the treating practitioner (medical or mental health practitioner) to another practitioner who is available and willing to undertake the role of treating practitioner. 7.6 Revoking a CTO to detain a patient

7.6.1 If the psychiatrist is not satisfied that treatment can be provided in the

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community, for example if the patient becomes unwell again, then the CTO can be revoked using the approved form and the person detained in an authorised hospital. 7.6.2 In those circumstances it is not necessary to examine the patient, or make a breach order or make an order to attend. 7.6.3 When revoking an order and ordering that the person be detained in hospital the psychiatrist may make an order (Transport Order) in the approved form authorising that the person be apprehended and transported to the authorised hospital by either a police officer or a person prescribed by the regulations. 7.6.4 The Practitioner can only make a Transport Order if, because of the persons mental or physical condition, there is no other safer means of taking the person to the authorised hospital. 7.6.5 The Transport Order authorises the persons apprehension, which can include the use of reasonable force and the entry into a place, such as the persons home. 7.6.6 Once apprehended, the person will be transported to the authorised hospital as soon as is practicable, and in any event, within 72 hours after the Transport Order was made. 7.6.7 The person and the Police Officer or prescribed person must be provided with a copy of the Transport Order. 7.6.8 A Practitioner (but not necessarily the Psychiatrist who made the Referral Order) may revoke the Transport Order using the approved form (Revocation of Transport Order) if he or she is satisfied that the Transport Order is no longer needed. 7.6.9 A copy of the Revocation of Transport Order form must be given to the person and the police officer or prescribed person. 7.6.10 In relation to places in the state deemed as declared areas the Transport Order may be extended for a further 72 hours at the request of the police or other person, by the psychiatrist who having considered the matter decides that the Transport Order needs to be extended. The extension order can be requested to and agreed orally and then followed up on the approved form. 7.7 Revoking a CTO to make the person no longer involuntary

7.7.1 If the patient no longer meets the criteria for a CTO they should be made no longer involuntary. 7.7.2 A copy of the order must be provided to the patient and a copy placed on the patients medical record. 7.7.3 If a CTO expires the patient must be provided with a form informing him or her

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that they are no longer on a CTO. 7.8 Breach of Order

7.8.1 If a patient has not complied with the CTO and all reasonable steps have been taken to obtain that compliance without success and there is a serious risk that the patient will suffer mental or physical deterioration if the non-compliance continues, then the supervising psychiatrist may issue a Breach Order. 7.8.2 The Breach Order needs to detail the patients non-compliance; what steps have been taken to obtain compliance; a statement from the supervising psychiatrist as to his or her belief that continued non-compliance will result in mental or physical deterioration; what the patient needs to do to comply; and what might happen if non-compliance continues. 7.8.3 The supervising psychiatrist must put on the patients medical record a record of the breach and a copy of the Breach Order. The patient must be provided with a copy of the Breach Order. 7.9 Order to Attend

7.9.1 If non-compliance continues despite the Breach Order, the supervising psychiatrist may make an Order to Attend which requires the patient to attend at a specific place to be given treatment. 7.9.2 The Order to Attend includes a warning that, if the patient does not comply with the order, a Transport Order authorising the patients apprehension and transport to a place for the treatment may be issued. 7.9.3 The supervising psychiatrist must put the Order to Attend on the patients medical record and the patient must be given a copy of the order. 7.9.4 If the patient does not comply with the Order to Attend, the supervising psychiatrist or treating practitioner or mental health practitioner may, if they are satisfied there is no safer means of ensuring the patient attends the place specified, make a Transport Order authorising a police officer or a person prescribed by the regulations to apprehend and transport the person to where treatment can be given. 7.9.5 The Transport Order lapses after 72 hours or at the time the patient is received at the place where treatment will be provided. The Order must be put on the patients medical record and the patient must be given a copy of the order. The Transport Order can be revoked by the supervising psychiatrist, treating practitioner or mental health practitioner if no longer required. 7.9.6 In relation to places in the state deemed as declared areas the Transport Order may be extended for a further 72 hours by the psychiatrist at the request of the police or other person. The extension order can be requested to and agreed orally and then followed up on the approved form.

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7.9.7 The patient must be received into the place specified on the form and can be detained there until eithera) the treatment is given; or b) the psychiatrist decides to make a detained involuntary treatment order and the person transported to an authorised hospital if not already in one; or c) the psychiatrist decides to make the patient no longer involuntary; or d) a period of 6 hours has elapsed and the treatment has not been given or the psychiatrist has not made an alternative decision the patient must be allowed to leave. 7.9.8 If the Order to Attend was not to an Authorised Hospital and the psychiatrist who makes the person subject to an involuntary detention order and because of the patients mental or physical condition there is no safe means of taking the patient to the authorised hospital, then either the supervising psychiatrist, treating practitioner or mental health practitioner may make a Transport Order authorising a police officer or a person prescribed by the regulations to apprehend and transport the patient to an authorised hospital. The order lapses either when a period of 72 hours since the order was made expires, or when the person is received into the authorised hospital. This order may be revoked if it is no longer required by the supervising psychiatrist, treating practitioner or mental health practitioner. This order may be extended for transports from declared areas. 7.9.9 If a patient on a CTO continues not to comply despite a breach order or an order to attend the psychiatrist may revoke the CTO and order that the person be an involuntary detained patient without the requirement for a further examination of the patient. The psychiatrist, a medical practitioner or mental health practitioner may also make a Transport Order.

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Part 8: Transport Orders

Reading notes
Transport orders authorise the apprehension and involuntary transport of a person experiencing mental illness. The authority to make a transport order arises in various different Parts of the draft Bill, reflecting the range of circumstances in which involuntary transport may be required. To minimise repetition, Part 8 of the draft Bill centralises general provisions relating to the operation of transport orders. The 1996 Act requires that transport orders be carried out by police. In some instances, the involvement of the police results in delays and is not in the best interests of the patient. For this reason, the draft Bill provides for other transport providers to be authorised to perform the transport function. Another change from the 1996 Act is a new requirement that transport orders be made only if no other safe means of taking the person is reasonably available.

What is in the draft Bill?

8.1 Transport Orders can be made in a number of different circumstances: a) Transporting a referred person to an authorised hospital; b) Transporting an involuntary detained patient or referred person from a rural or remote area (declared place) to an authorised hospital; c) Transporting an involuntary patient or referred person between authorised hospitals; d) Transporting a person on leave back to an authorised hospital; e) Transporting a person on a CTO and Order to Attend to a specified place; f) Transporting a person on a CTO to an authorised hospital when a CTO is revoked; g) Transport an involuntary detained patient from a General Hospital to an authorised hospital; h) Transport a person absent without leave from wherever they are to an authorised hospital. Transport Orders last for 72 from the time they are made unless they are extended either orally or in writing when a person is being transported from a declared area and the order may expire without the transport being completed. Any oral order must be followed up with a written order. A Transport order must be in an approved form specifying the name of the person to be transported, the hospital or other place the person is being transported to and the date and time the order was made. A copy of the order must be put in the patients medical record and a copy given to the person being transported and the police officer or person prescribed to carry out the order.

8.2

8.3 8.4

8.5

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8.6

The Transport Order authorises the police officer or other prescribed in the regulations to apprehend the person, detain them and then transport them to the place identified on the order. If the person is being transported from a declared area in the state and it is likely that the order will expire before the transport can be completed the police officer or other prescribed person may orally request from a practitioner an extension of the Transport order. The practitioner may make an extension order orally for up to 72 hours from when the extension was requested. The practitioner must also do a written extension order and place a copy in the medical record as well as providing a copy to the police officer or person prescribed and the person being transported. The transport order cannot be extended more than once. If a transport order or extension order is no longer required a practitioner may revoke the order (revocation order) and place a copy on the medical record, give the person being transported a copy and the police officer or person prescribed a copy.

8.7

8.8

8.9

8.10 8.11

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Part 9: Powers of Police Officers and other authorised persons

Reading notes
As with the 1996 Act, the draft Bill affords police officers a number of powers to apprehend, detain, restrain and transport persons. Under the draft Bill, these powers may also be exercised by persons other than police officers who are authorised to carry out transport orders. Changes from the 1996 Act include a new requirement that police officers take all reasonable steps to ensure that a clinician is present when a person is apprehended, and the inclusion of more detail regarding searches and seizure of items.

What is in the draft Bill?

9.1 Power of Apprehending

9.1.1 In apprehending the person the police officer may enter any premises where the person is reasonably suspected to be, search the person and seize any article found with or near the person. 9.1.2 A police officer must take all reasonable steps to make sure that a medical practitioner or mental health practitioner is present when the police officer apprehends a person, however that does not prevent a police officer acting on their own volition without reference to a mental health clinician. 9.1.3 As soon as practicable after apprehending the person the police officer must arrange for the person to be examined by a medical practitioner or AMHP 9.1.4 Apprehending a person does not prevent the police charging the person with an offence. 9.2 Search and seizure

9.2.1 When transporting a patient or referred person a police officer or authorised person may search the person and seize any article described below. 9.2.2 The police officer or authorised person may frisk search the person which means to quickly and methodically run the hands over the outside of the persons clothing. 9.2.3 The person conducting the search may also scan the person with an electronic or mechanical device, whether hand held or not, to detect any thing. 9.2.4 The person conducting the search may also remove the persons headwear, gloves, footwear or outer clothing (such as a coat or jacket), but not the persons inner clothing or underwear, in order to facilitate a frisk search and

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also search any clothing removed. 9.2.5 The search must be conducted by a person who is the same sex as the person being searched unless it is not reasonably practicable to do so. 9.2.6 The sort of article that may be seized include: a) an intoxicant such as drugs or alcohol which may be destroyed if it is suspected that if returned to the person it is likely to be used by the person to become intoxicated; or b) an article, including a drug that is prescribed for the person, that could endanger the health or safety of the person or the safety of another person; or c) an article that could be used by the person to cause damage to property; or d) an article that is likely to assist in deciding that a function under this Act was done properly such as removal of the means for self harm. 9.2.7 Details of any article seized and what was done with the article must be kept by the person who seized the article. 9.2.8 Any article seized but not destroyed must be kept safe. 9.2.9 If the person is admitted to hospital the article should be returned to the person or another person such as a carer when the person is discharged. 9.2.10 If not admitted returned to the person or another person such as a carer when released. 9.3 Use of Force

9.3.1 When transporting, detaining or searching a person a police officer or other authorized person may use reasonable force. 9.3.2 If another person is assisting the police officer or authorized person they must obey any lawful or reasonable directions given by the police officer or authorized person. 9.4 Aboriginal Police Liaison Officers

9.4.1 The Commissioner of Police may authorise an Aboriginal police liaison officer to exercise the powers of a police officer under this Act if the Commissioner is satisfied that the Aboriginal police liaison officer has received appropriate training in the exercise of those powers.

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Part 10: Provision of Treatment Generally

Reading notes
Part 10 deals with the treatment of patients, the provision of second opinions, and treatment, support and discharge planning. The equivalent Part of the 1996 Act also deals with informed consent to treatment and interventions such as seclusion and mechanical bodily restraint. The draft Bill deals with these matters separately, in Part 4 and Part 11 respectively. Significant reform proposals contained in Part 10 of the draft Bill include: Requiring clinicians to have regard to the wishes of the patient when making involuntary treatment decisions, including where those wishes are documented in an advance health directive; A new requirement that second opinions be independent; Requirements to collaborate with Aboriginal Health Workers and traditional healers where practicable and appropriate; and New treatment, support and discharge planning requirements.

What is in the draft Bill?

10.1 Terms and who this part applies to

10.1.1 Treatment means the provision of a psychiatric, medical, psychological, social or other therapeutic intervention intended, whether alone or with one or more other therapeutic interventions, to alleviate or prevent the deterioration of mental illness or a condition that is a consequence of a mental illness. 10.1.2 Treatment in this part of the Bill does not include prohibited treatments, psychosurgery, electroconvulsive therapy (ECT), emergency psychiatric treatment or interventions such as seclusion, bodily restraint or sterilisation. 10.1.3 A voluntary patient cannot be given treatment without informed consent either written or orally being given for the treatment. 10.1.4 An involuntary patient or a mentally impaired accused detained in an authorised hospital can be given treatment without consent, though informed consent should be sought, and details of all treatment noted in the patients medical record. 10.2 Patients wishes to be taken into account

10.2.1 In deciding what treatment will be given to the patient, the patients psychiatrist must take into account the patients wishes in regard to the treatment proposed, to the extent those wishes can be ascertained 10.2.2 The patients wishes may be understood through any advance health directive made by the patient in regard to treatment; or the terms of any enduring power

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of guardianship made by the patient; or any other things that the patients psychiatrist considers may be relevant in understanding the patients wishes. 10.2.3 The patients medical record must note any such health directive or any preference by the patient as regards to treatment when those wishes can be ascertained. 10.2.4 If any treatment decision is inconsistent with the health directive or understanding from the patient, the psychiatrist is to give reasons for that decision. 10.2.5 A copy of those reasons must be given to the patient, the patients carer or nominated person and a copy sent to the Chief Psychiatrist. 10.3 Provision of treatment to Aboriginal or Torres Strait Islanders

10.3.1 Treatment provided to a patient who is an Aboriginal or Torres Strait Islander must be provided in collaboration with Aboriginal health workers and with traditional healers from the patients community unless it would not be practicable or appropriate to do so. 10.4 Second opinion from another psychiatrist

10.4.1 If the involuntary patient or mentally impaired accused or the guardian of the patient is dissatisfied with the treatment, the person may request from the patients psychiatrist, or in circumstances outlined in guidelines provided, the Chief Psychiatrist, an opinion from another psychiatrist who is not the patients psychiatrist, whether it is appropriate to provide the treatment to the patient. 10.4.2 Any such request must be complied with. 10.4.3 In order to obtain this opinion the psychiatrist should examine the patient and give his or her opinion in writing. 10.4.4 As soon as practicable after receiving this second opinion, the patients psychiatrist must give the patient a copy of the written opinion and put a copy in the patients medical record. 10.4.5 If it was the Chief Psychiatrist who obtained the second opinion then the Chief Psychiatrist must give a copy to the patient and the patients psychiatrist. 10.4.6 If the patient or the person who requested the second opinion remains dissatisfied with the treatment, the Chief Psychiatrist may request the patients psychiatrist to reconsider the treatment. That psychiatrist must report the outcome of any such reconsideration to the Chief Psychiatrist. 10.4.7 The Chief Psychiatrist will provide guidelines in regard to a patients request for a second opinion in relation to treatment.

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10.5

Treatment, Support and Discharge Planning

10.5.1 Any involuntary patient being cared for or being discharged outright; or a patient being cared for or discharged on a CTO; or a mentally impaired accused being cared for or released conditionally or unconditionally will have a treatment, support and discharge plan which as far as is practicable will form the basis of care and treatment. 10.5.2 The patients psychiatrist must ensure that a plan is prepared for any ongoing treatment and care the patient will need as soon as practicable after being admitted, after a CTO is made or when a CTO is discharged or when the patient is released. 10.5.3 The plan must be prepared, reviewed and revised in line with guidelines published by the Chief Psychiatrist. 10.5.4 To develop the treatment, support and discharge plan the patients psychiatrist must involve the patient, whether or not the patient has the capacity to consent to the implementation of the plan and whether or not the plan can be implemented without the patients consent. 10.5.5 Whether the plan can or cannot be implemented without the patients consent, the psychiatrist must involve a nominated person, a carer if he or she has one or a guardian unless the psychiatrist feels it would be inappropriate to do so. (see Carers Rights). 10.5.6 The treatment, support and discharge plan will be on an approved form. 10.5.7 The psychiatrist will give a copy of the plan to the patient, a nominated person and the carer unless it was decided that it would be inappropriate to do so. 10.5.8 Guidelines for treatment support and discharge planning will be provided by the Chief Psychiatrist.

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Part 11: Regulation of certain kinds of treatment and other Interventions

Reading notes
Part 11 of the draft Bill is concerned with regulated treatments and interventions. These include ECT, emergency psychiatrist treatment, psychosurgery, deep sleep and insulin coma therapy, seclusion and bodily restraint. Robust new safeguards are proposed in relation to the use of ECT. These include banning its use on children under the age of 12, and making its use on involuntary patients subject to the prior approval of the Mental Health Tribunal (exceptions to the requirement for Tribunal approval apply in emergency circumstances). Information on the proposed Mental Health Tribunal is contained in Part 15. Another significant change is to remove the word mechanical in relation to bodily restraint. This change means that all types of bodily restraint will be regulated and made subject to reporting requirements, not just restraint that involves mechanical processes.

What is in the draft Bill?

11.1 Electroconvulsive therapy (ECT)

11.1.1 ECT is the application of an electric current to specific areas of a persons head to produce a generalised seizure that is modified by general anaesthesia and the administration of a muscle relaxing agent. 11.1.2 ECT must not be performed on a child under 12 years of age and is designated a crime. The penalty is $15,000 and imprisonment for 2 years. 11.1.3 A child between the ages of 12 and 18 who is a voluntary patient may be provided with ECT if the child is deemed to be competent in that they have sufficient maturity and understanding to make reasonable decisions about matters relating to themselves and they give informed consent or if not competent, informed consent is given by the childs parent or guardian. 11.1.4 If the psychiatrist prescribing the treatment is not a psychiatrist with specialist training in child and adolescent psychiatry the treatment must be confirmed by a second psychiatrist who has special training in relation to mental illness in young people. 11.1.5 If the above applies a copy of the recommendation and the confirmation of the recommendation must be given to the patient. 11.1.6 If the child and adolescent psychiatrist refuses to confirm the treatment he or she must inform the Chief Psychiatrist of this refusal and the reasons for their decision.

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11.1.7 An adult who is a voluntary patient may give informed consent for ECT, but this cannot be provided by another person such as a guardian though it should be discussed with a nominated person or carer. 11.1.8 An involuntary patient, including a child between the ages of 12 and 18, or a mentally impaired accused may be given ECT whether they provide consent or not only if the Mental Health Tribunal and in the case of a child a Mental Health Tribunal which includes a psychiatrist who has special training in relation to mental illness in children, has approved the recommendation of the treating psychiatrist 11.1.9 In order to approve a recommendation the Mental Health Tribunal must be satisfied that the ECT has clinical merit and is appropriate in the circumstances. Details of the approval process are provided in Part 18 of the Bill. 11.1.10 If the Mental Health Tribunal after reviewing the matter decides not to confirm the recommendation, the treatment cannot be given, however the psychiatrist may apply to the State Administrative Tribunal for a review of the decision. 11.1.11 If the patient is a mentally impaired accused the Mentally Impaired Accused Review Board must be informed in writing about the course of treatment by the treating psychiatrist. 11.1.12 If an involuntary patient requires ECT in an emergency situation and waiting for the approval of the MHT would compromise the care and treatment of the patient, the Chief Psychiatrist may provide approval for emergency ECT until the matter is heard by the Mental Health Tribunal. 11.1.13 Performing ECT on an involuntary patient or mentally impaired accused without approval of the Mental Health Tribunal or in an emergency situation the Chief Psychiatrist is an offence which carries a fine of $15,000 and 2 years imprisonment. 11.1.14 As soon as is practicable after the end of each month, all mental health services must report to the Chief Psychiatrist the following informationa) the number of people who completed a course of ECT at the mental health service during the month; b) the number of those people who were children; c) the number of those people who were voluntary patients; d) the number of those voluntary patients who were children; e) the number of those people who were involuntary patients; f) the number of those involuntary patients who were children; g) the number of those people who were mentally impaired accused; h) the number of those mentally impaired accused who were children; i) the number of treatments with ECT in each of those courses; j) details of any serious adverse event that occurred, or is suspected of having occurred, during or after any of those courses.

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Any serious adverse event, in relation to a course of treatments with ECT, includes any of the following (i) premature consciousness during a treatment; (ii) anaesthetic complications, such as arrhythmia, during recovery from a treatment; (iii) an acute and persistent confused state during recovery from a treatment; (iv) muscle tears or vertebral column damage; (v) severe and persistent headaches; (vi) persistent memory deficit. 11.1.15 Guidelines regarding the provision of ECT will be published by the Chief Psychiatrist.

11.2 Emergency Psychiatric Treatment (EPT) 11.2.1 EPT is treatment that needs to be given to a person to save the persons life, or, to prevent the person from behaving in a way that is likely to result in serious physical injury to the person or other persons. 11.2.2 EPT does not include the prohibited treatments, psychosurgery, ECT, bodily restraint, seclusion or a sterilisation procedure. 11.2.3 A medical practitioner may give EPT without informed consent being provided. 11.2.4 As soon as is practicable after giving EPT a medical practitioner must record what treatment was given, the circumstances for which the treatment was necessary, the names and qualification of the practitioner who gave the treatment, the names of other persons involved in the giving the treatment and the date, time and place the treatment was given. An EPT form will be provided for this report. 11.2.5 A copy of the report must be placed in the persons medical record, a copy sent to the Chief Psychiatrist and in relation to Mentally Impaired Accused a copy sent to the Mentally Impaired Accused Review Board. 11.2.6 EPT does not apply to an involuntary patient or a mentally impaired accused who can be provided with treatment without informed consent being given however the patients psychiatrist must ensure that the patients medical record includes a record of the treatment. 11.3 Psychosurgery

11.3.1 Psychosurgery is the use of eithera) A surgical technique or procedure to create in a persons brain a lesion intended, whether alone or with one or more lesions created at the same time, to alter permanently the persons thoughts or emotions; or the persons behaviour other than behaviour secondary to a paroxysmal cerebral dysrhythmia, or b) The use of intracerebral electrodes to stimulate a persons brain without

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creating a lesion with the intention that the stimulation, whether alone or with other stimulations at the same or other times, produce the same effect as described above. 11.3.2 Psychosurgery cannot be performed on a child under 12 years of age. 11.3.3 Psychosurgery cannot be performed on a child between the ages of 12 and 18 unless consent is provided on behalf of the patient by a parent or guardian or if they are a competent young person and can provide consent themselves. 11.3.4 Psychosurgery can only be performed on an adult with their informed consent. 11.3.5 Any application for psychosurgery must be approved by the Mental Health Tribunal, who will conduct a review of the proposed treatment which will involve the treating psychiatrist, the patient who it is proposed will receive the psychosurgery and any other person the Mental Health Tribunal considers has a sufficient interest in the matter. 11.3.6 Before approving the treatment the MHT must be satisfied thata) Informed consent has been given; b) The treatment has clinical merit and is appropriate in the circumstances; c) All alternatives to the proposed treatment have been trialled without sufficient and lasting benefit to the person; d) The person who is proposed to perform the psychosurgery is suitably qualified; and e) The place where the treatment will take place is suitable. 11.3.7 As soon as practicable after the psychosurgery has been performed on a mentally impaired accused, the treating psychiatrist must report to the Mentally Impaired Accused Review Board providing a copy of the consent form. 11.3.8 Performing psychosurgery without referral to the Mental Health Tribunal is an offence subject to a $30,000 fine and five years of imprisonment. 11.4 Deep sleep and insulin coma therapy

11.4.1 Deep sleep therapy, insulin coma therapy and sub-coma therapy are prohibited and any person performing these interventions is committing a crime and subject to imprisonment for a period of five years. 11.5 Seclusion

11.5.1 Seclusion means the confinement of a person at any time of the day or night alone in a room or area from which it is not within the persons control to leave. 11.5.2 Seclusion in an Authorised Hospital can only be authorised by an oral or seclusion order.

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11.5.3 Seclusion is a mental health intervention and not a treatment option and applies to voluntary and involuntary patients, mentally impaired accused and referred persons detained in an authorised hospital. 11.5.4 The practitioner who authorises seclusion must be satisfied that seclusion is necessary to prevent the patient being injured or injuring another person or persistently damaging property and that there is no less restrictive way of preventing the injury or damage. 11.5.5 A medical practitioner or a mental health practitioner or the person in charge of a ward may give an oral authorisation that a person be secluded. 11.5.6 If the person making the order is a mental health practitioner then it is because either a medical practitioner or the person in charge of the ward is not reasonably available to make the order. 11.5.7 A practitioner giving an oral authorisation for seclusion must specify the room or the area where the person can be secluded. 11.5.8 As soon as is practicable after a person is secluded under an oral order made by a mental health practitioner, he or she must inform a medical practitioner of the seclusion intervention. 11.5.9 As soon as is practicable after giving an oral authorisation the medical or mental health practitioner or the person in charge of the ward must make a written seclusion order confirming the oral authorisation. 11.5.10 If the practitioner or person in charge does not make a seclusion order confirming the oral authorization, the person cannot be secluded any longer and must be released from seclusion. 11.5.11 The written seclusion order must be in an approved form and include the followinga) The names and qualifications of the practitioner or person in charge of the ward who made the order; b) The name and qualifications of the medical practitioner informed if seclusion authorised by a mental health practitioner; c) If the medical practitioner attended the person, the date and time of the attendance; d) The date and time the order was made; e) The date and time the oral authorisation was given; f) The period for which the person can be secluded and where appropriate the period of time the person was secluded under an oral authorisation; g) The room or area where the person can be secluded; h) The reason for authorising the seclusion bearing in mind the criteria for seclusion; i) If the seclusion was authorised by a mental health practitioner the reasons for the urgency; j) Particulars of any observations made about the patient while in seclusion; k) Particulars of any directions given by the practitioners about the treatment and

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care provided while the person was in seclusion; l) The name and qualifications of the treating psychiatrist (if any); m) The dates, times and results of the examinations conducted by the medical practitioner. 11.5.12 As soon as practicable after making a written seclusion order, the mental health practitioner must inform the medical practitioner that the person has been secluded. 11.5.13 As soon as practicable after making a written seclusion order, the practitioner or person in charge of the ward must give a copy to the patient and place a copy on the medical record. A copy must also be sent to the Chief Psychiatrist or in relation to mentally impaired accused the Mentally Impaired Review Board. 11.5.14 If the person secluded has a treating psychiatrist who was not involved in the seclusion intervention, then the practitioner or person in charge of the ward must inform the treating psychiatrist that the person has been secluded. 11.5.15 A medical practitioner may extend the period for which a person can be secluded on an approved form indicating the period of extension and the reasons for the extension and give the patient a copy as well as placing a copy in the medical records. 11.5.16 A medical practitioner, mental health practitioner or person in charge of the ward may revoke the seclusion order and give a copy of the order to the patient as well as placing a copy in the medical records. 11.5.17 When a person is in seclusion either the treating psychiatrist or the practitioner who authorised the seclusion must ensure the followinga) That a mental health practitioner observes the person every 15 minutes; b) That a medical practitioner examines the person every 2 hours; c) That bedding and clothing appropriate to the circumstances is provided; d) That sufficient food and drink is provided; e) That the person is able to access a toilet; f) That any other care appropriate to the persons needs is provided. 11.5.18 Whenever a person is released from seclusion, and if the person is still in the Authorised Hospital, the treating psychiatrist or if the person does not have a psychiatrist, the person in charge of the hospital must ensure that the person is examined by a medical practitioner within 6 hours of being released from seclusion. 11.5.19 The medical practitioner who completes this examination must on an approved form give the results of the examination including any complications or deterioration in the persons mental or physical condition that is a result of being secluded. 11.5.20 Secluding a person without proper authority can result in a fine of $6000.

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11.6

Bodily Restraint (BR)

11.6.1 BR means the physical or mechanical restraint of a person. 11.6.2 Physical restraint is the restraint of a person by the application of bodily force to the persons body to restrict the persons movement.. 11.6.3 Mechanical restraint is application of a device (for example a belt, harness, manacle, sheet or strap) to a persons body to restrict the persons movements. 11.6.4 Mechanical restraint does not include the appropriate use of medical or surgical appliance in the treatment of a physical illness or injury; or the appropriate use of furniture that restricts a persons capacity to get off the furniture (for example, a bed fitted with cot sides or a chair fitted with a table across the arms); or restraint by a police officer acting in the course of duty. 11.6.5 BR may be used on voluntary and involuntary patients, mentally impaired accused and referred persons. 11.6.6 The criteria for making an oral or written order for BR is that the practitioner is satisfied that the person needs to be restrained toa) provide the person with treatment; or b) prevent the person from being physically injured or injuring another person; or c) prevent the person from persistently damaging property. 11.6.7 The practitioner must also be satisfied that there is no less restrictive way of providing the treatment and the use of BR is unlikely to pose a significant risk to the persons physical health. 11.6.8 If the person making the order is a mental health practitioner they must be satisfied that that the person needs to be restrained urgently and that a medical practitioner is not reasonably available to authorise the BR. 11.6.9 A medical or mental health practitioner may authorise orally that BR be applied. 11.6.10 The oral authorisation must specify the way the person is restrained including the device that can be used to restrain the person and the way that device can be applied to the persons body. 11.6.11 If the oral authorisation was from a mental health practitioner then as soon as is practicable the practitioner must inform a medical practitioner that the person has been restrained. 11.6.12 As soon as is practicable after making an oral authorisation a medical or mental health practitioner must make a written BR order confirming the oral authorisation.

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11.6.13 If the practitioner does not make a bodily restraint order confirming the oral authorisation the person cannot be restrained any longer and must be released from the bodily restraint. 11.6.14 The written BR order must be on an approved form and include the followinga) The name and qualification of the practitioner making the order; b) The date and time it is made; c) Where appropriate the date and time of the oral authorisation; d) The period for which the person can be restrained as well as the period they were restrained under the oral authorisation; e) Details of how the person was restrained including the device used to restrain and the way in which the device is applied to the body; f) The reasons for using BR and the particular device specified; g) If authorised by a mental health practitioner the reason for the urgency; h) Particulars of any observations made during the period BT was applied; i) Particulars of any directions given by the medical practitioner or mental health practitioner about the treatment and care provided to the person while restrained; j) The name of the treating psychiatrist (if any); k) Details of any reviews conducted. 11.6.15 A copy of the written order must be given to the patient, a copy sent to the Chief Psychiatrist, and in the case of a mentally impaired accused a copy must be sent to the Mentally Impaired Review Board. 11.6.16 If the person has a treating psychiatrist, he or she must be informed as soon as is practicable that BR was used. 11.6.17 A medical or mental health practitioner may make an order varying the BR order by: a) Extending or reducing the period for which the person can be restrained; b) Varying the device that is being used and the way in which the device is used on the persons body. 11.6.18 If an order is varied a copy of the order detailing the variation and the reason for the variation must be given to the person and a copy placed in the medical records. 11.6.19 A medical or mental health practitioner may make an order revoking an BR order and give a copy to the patient and place a copy in the medical records. 11.6.20 While a person is subject to BR the treating psychiatrist or, if the person does not have a treating psychiatrist, the practitioner who authorised the BR, must ensure thata) a mental health practitioner is in physical attendance with the person at all times; b) if the restraint was authorised by a medical practitioner, that a medical practitioner is in physical attendance with the person for the first 15 minutes the person is restrained; c) if the restraint was authorised by a mental health practitioner, the medical

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d) e) f) g) h) i)

practitioner who is informed physically attends on the person as soon as is practicable for the purpose of examining the person; following this first attendance by the medical practitioner, the person is examined by a medical practitioner every 30 minutes; if the person is restrained for more than 6 hours, a psychiatrist reviews the use of BR on the person; the person is provided with bedding and clothing appropriate to the circumstances; sufficient food and drink are provided; there is access to toilets; the person is provided with any other care appropriate to the persons needs. When BR is ceased, if the person is still present in the facility, the treating psychiatrist or, if the person does not have a treating psychiatrist, the person in charge of the facility where the person was restrained, must ensure that the person is examined within 6 hours by a medical practitioner. The results of that examination, including any complications or deterioration in the persons mental or physical condition occurring as a result of the BR, must be recorded on an approved form.

11.6.21

11.6.22

11.6.23 Use of BR without proper authorisation can result in a fine of $6000.

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Part 12: People in Authorised Hospitals: Health Care Generally

Reading notes
The 2003 Holman Review noted that the 1996 Act fails to address the physical health and medical care of people with mental illness. Part 12 of the draft Bill seeks to address this by requiring that every patient in an authorised hospital have access to a physical health examination with consent (in the case of a voluntary patient) or without consent (in the case of an involuntary patient or mentally impaired accused). Part 12 also sets out processes for the authorisation of sterilisation procedures and non-psychiatric medical treatment of involuntary patients and mentally impaired accused.

What is in the draft Bill?

12.1 Examination to assess patients physical condition

12.1.1 As soon as is practicable, the person in charge of the hospital must ensure that a voluntary or an involuntary detained patient either in an Authorised or General Hospital, or a mentally impaired accused is examined by a medical practitioner to assess the patients physical condition. 12.1.2 In relation to involuntary patients and mentally impaired accused the patient can be examined without consent and samples of blood, tissue and excreta may also be taken without consent, though consent should always be sought. 12.1.3 The medical practitioner must record the results of the examination in the patients medical record as well as the date and time of the examination. 12.2 Medical treatment for involuntary in-patients and mentally impaired accused

12.2.1 Two terms are used in relation to this medical treatment, urgent medical treatment and non-urgent medical treatment. 12.2.2 Urgent medical treatment means treatment that in the opinion of the practitioner concerned is urgently needed to a) save the life of the person needing the treatment; or b) prevent serious damage to the health of the person needing the treatment; or c) prevent the person needing the treatment from suffering or continuing to suffer significant pain or distress (Guardianship and Administration Act 1990, s. 110ZH (GAA)) 12.2.3 If a patient needs to be provided with urgent medical treatment but does not have the capacity to give informed consent, the treating psychiatrist may give

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informed consent on the patients behalf (GAA, s 110ZD) and this must be recorded in the patients medical record. 12.2.4 As soon as practicable after a patient is provided with urgent medical treatment the person in charge of the hospital must report on an approved form details of the treatment to the Chief Psychiatrist and in relation to mentally impaired accused a report to the Mentally Impaired Accused Review Board. 12.2.5 The report must be in an approved form which includesa) the name of the patient given the treatment; b) the name and qualifications of the practitioner who gave the treatment; c) the names of any other people involved in giving the treatment; d) the date, time and place the treatment was given; e) particulars of the circumstances in which the treatment was given; and f) particulars of the treatment given. 12.2.6 Non-urgent medical treatment means any medical, surgical, dental or related treatment or care that may lawfully be provided to a patient with the patients consent or the consent of any person authorised by law to consent on behalf of the patient, but does not include sterilisation (GAA, s 3 and 56). 12.2.7 If a patient needs to be provided with non-urgent medical treatment but does not have the capacity to give informed consent, the Chief Psychiatrist may give informed consent on the patients behalf and this must be recorded in the patients medical record. 12.3 Sterilisation procedure

12.3.1 A sterilisation procedure is medical or surgical treatment that is intended to make a person, or to ensure that a person is, permanently infertile. 12.3.2 It is not sterilisation if a person received medical or surgical treatment which was not intended to make them infertile but incidentally had that result. 12.3.3 Sterilisation must not be performed on a child unless authorised by the Family Court. 12.3.4 The exception to this rule is if the child has sufficient maturity and understanding to make reasonable decisions and therefore has the capacity to provide informed consent. 12.3.5 An adult who has capacity to give informed consent may consent to sterilisation. 12.3.6 The guardian of a person, having received permission from the State Administrative Tribunal, may consent to sterilisation on a persons behalf if the person does not have the capacity to consent.

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12.3.7 As soon as practicable after a sterilisation procedure the psychiatrist must report to the Chief Psychiatrist and in relation to mentally impaired accused the Mentally Impaired Accused Review Board.

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Part 13: Protection of patients rights

Reading notes
Part 13 of the draft Bill builds on Part 7 of the 1996 Act, which also deals with protection of patients rights. Proposed changes from the 1996 Act include the introduction of mandatory reporting of unreasonable use of force and unlawful sexual contact, and the introduction of a nominated person scheme, which will enable patients to nominate a person to assist them in exercising their rights. The nominated person scheme will not detract from the rights of carers, which are detailed separately in Part 14. Restrictions on voting rights have been removed.

What is in the draft Bill?

13.1 Explanation of Rights

13.1.1 Voluntary and involuntary patients, mentally impaired accused in an authorised hospital and referred persons will receive an explanation of their rights and copies of all forms including the referral form as well as information about advocacy services. 13.1.2 Information will be provided orally and in writing and in a language, form of communication and terms the person is likely to understand. 13.1.3 The person responsible for ensuring an explanation is provided isa) in relation to voluntary patients the person in charge of the authorised hospital; b) in relation to involuntary detained patients the psychiatrist who made the inpatient order; c) in relation to a patient given leave of absence the psychiatrist who granted the leave; and d) in relation to patients on CTOs the psychiatrist who made the CTO. 13.1.4 If the patient is a child then the childs parents or guardians, or if the child has a nominated a person that nominated person or a carer must also be given an explanation of rights. 13.1.5 If the patient is an adult then a nominated person, guardian or carer must also be given an explanation of rights unless the psychiatrist believes that would not be in the patients best interest. 13.2 Duty to report certain incidents

13.2.1 A staff member of a mental health service who reasonably suspects that a reportable incident has occurred in relation to a patient of the mental health service must report the suspicion to the person in charge of the mental health service or the Chief Psychiatrist. 13.2.2 A reportable incident, is any unlawful sexual contact with the patient; or the

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unreasonable use of force on the patient 13.2.3 Failure to report can result in a fine of $6000. 13.3 Duty not to ill-treat or willfully neglect 13.3.1 A staff member of a mental health service must not ill-treat or willfully neglect a person such as a voluntary or involuntary patient, a referred person or a mentally impaired accused, who is being provided with treatment or care by the mental health service. 13.3.2 A staff member who has been found to have ill-treated or willfully neglected a person liable to a fine of $4 000 and imprisonment for 12 months 13.4 Freedom of lawful communication

13.4.1 A voluntary patient, involuntary patient or mentally impaired accused (inpatient) has the right as far as is reasonable to communicate with other people in the hospital. 13.4.2 Inpatients may send and received uncensored private communication with others including their legal representative. 13.4.3 Inpatients may also receive visits from other people including their legal representative at any reasonable time and a Mental Health Advocate at any time. 13.4.4 Inpatient may also access postal and telephone services, newspapers, radio and TV at any reasonable time. 13.4.5 A psychiatrist may on an approved form restrict or limit the right to communication if he or she believes it is in the patients best interest to do so. 12.4.6 As soon as practicable after making such an order the psychiatrist must give a copy to the patient, a nominated person or a carer and put a copy in the patients medical record. 13.4.7 Before the end of each 24 hour period the restriction is in force the psychiatrist must review the restriction and confirm, amend or revoke it. 13.4.8 If no such review occurs then the restriction lapses 24 hours from the time it was made. 13.4.9 The patient must be informed if the restriction is extended. 13.4.10 Within 72 hours of the restriction coming into force the psychiatrist must inform the Mental Health Advocacy Service. 13.4.11 The patient, a mental health advocate or another person with sufficient interest may apply to the Mental Health Tribunal for a review of the restriction.

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13.5

Access to medical records

13.5.1 A person who is or was a patient in an authorised hospital is entitled to inspect, and to be given a copy of any relevant document relating to the person such as the persons medical recird that is in the possession or control of the person in charge of the hospital or a staff member of the hospital. 13.5.2 This right is not affected by any other law such as the Freedom of Information legislation which allows or prevents a person obtaining access to their medical record. 13.5.3 This right may be restricted if a medical practitioner believes that disclosure of the information to the person would a) pose a significant risk to the health, safety or welfare of the person or to the safety of another person, b) disclose personal information about an individual who is not the person or c) disclose information of a confidential nature that was obtained in confidence unless that person has given consent. 13.5.4 Restrictions also apply if the person is a mentally impaired accused or to documents related to the Prisons Act 1981. 13.5.5 If documents are restricted the patient may nominate either a medical practitioner or a legal practitioner to have access to the information. 13.5.6 A person who inspects, or is given a copy of, a relevant document must not disclose the information in the document to the person who was refused access and if they do so they may face a penalty of $6000. 13.5.7 Access to medical records under this Act is in addition to rights under the Freedom of Information Act 1992. 13.6 Personal Possessions

13.6.1 Personal possessions brought into an Authorised Hospital such as jewellery, clothing or footwear or aids to daily living such as medical prostheses may be brought into the hospital and the hospital must provide secure facilities to store these items. 13.6.2 However if the person in charge believes that access to the item may pose a risk of harm to the patient or another person the items use may be restricted or if the item is not an aid for daily living storage facilities may not be provided and the item removed from the hospital. 13.6.3 Any item left in the hospital for more than 6 months after the person has been discharged may be sold or disposed of but only after the person is given at least one months notice of the disposal of the item and the possessions have not been claimed.

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13.7

Nominated Persons

13.7.1 The role of the nominated person is to assist the patient by making sure that the patients rights under the Act are respected and the patients interests taken into account. 13.7.2 As part of the role the nominated person will receive information relating to the person which is allowed under the Act and be involved in the consideration of options that are available for the patients treatment and care; and the preparation and review of any treatment, support and discharge plan . 13.7.3 The treating psychiatrist must make all reasonable effort to make sure that the nominated person is identified and given the information and involved in the patients care and treatment. 13.7.4 The treating psychiatrist may refuse to provide particular information only if he or she reasonably believes it would not be in the patients best interest for that that information to be given or the nominated person involved. 13.7.5 The nominated person role does not include being able to provide consent on behalf of the patient in relation to admission and treatment. 13.7.6 A patient can have free and uncensored contact with the nominated person which includes being visited, making and receiving telephone calls and sending and receiving other types of electronic communication such as e-mail and text messaging. 13.7.7 A nominated person can be appointed by any person over the age of 18 who has full legal capacity and they must be able to understand what being a nominated person means. 13.7.8 The nominated person can indicate the extent to which they want to receive information or be involved in the patients care and treatment. 13.7.9 The nomination to be a nominated person musta) be in writing on an approved form; b) state the name and contact details of the person being nominated; c) state the date on which the nomination comes into effect; d) be signed by the person making the nomination or by another person as directed by and in the presence of the person making the nomination; e) the signature be witnessed by a person authorised by law to do so and cannot be the person referred to in (d) above or the person being nominated; f) be signed by the person being nominated indicating that they are accepting the nomination; g) the signature of the nominated person be witnessed by a person authorised by law to do so. 13.7.10 The list of people who are authorised by law to witness a signature is in Schedule 2 of the Oaths, Affirmations and Statutory Declarations Act 2005

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and includes doctors, nurses, police officers, lawyers, psychologists, teachers and defence personal. 13.7.11 Only one person can be nominated at a time.

13.7.12 If the patient nominates another person the nomination for the first person is automatically revoked. 13.7.13 The nominated person may resign the nomination at any time by informing the patient in writing. 13.7.14 The nomination lapses either when the patient receives the written notification or on a day specified in the resignation letter. 13.7.15 If a nominated person does resign or the nominated person becomes aware that the patient has nominated someone else they should take all reasonable steps to notify the practitioner or mental health service involved in the patients care and treatment. 13.8 Voluntary patients in Authorised Hospitals 13.8.1 A person may be admitted as a voluntary patient to an authorised hospital if the psychiatrist is satisfied that the person is likely to benefit from admission. 13.8.2 If a person is refused admission the patient must be informed of that decision and also informed that they are entitled to lodge a complaint either with the person in charge of the hospital or with the Health and Disability Services Complaints Office.

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Part 14: Recognition of carers rights

Reading notes
The 1996 Act does not use the term carer and provides very limited recognition of the role of relatives, guardians and friends. Part 14 of the draft Bill seeks to address this by ensuring that carers are able to be provided with information and involved in decision making as appropriate in the circumstances.

What is in the draft Bill?

14.1 Acknowledgement and respect for role

14.1.1 The role of the carer of a patient in the provision of treatment, care and support to the patient should be acknowledged and respected. 14.2 Carers Rights

14.2.1 Carers have a right to be provided with information relevant to the carer about (i) the mental illness for which the patient is being given treatment; (ii) if the patient is an involuntary patient, the grounds on which the involuntary treatment order was made; (iii) the treatment that is to be provided to the patient and any other treatment options that are available; (iv) the services available to meet the patients needs; (v) the patients rights under this Act and how those rights may be accessed and exercised; and (vi) the carers rights under this Act and how those rights may be accessed and exercised; 14.2.3 Carers also have the right to be involved, to the extent relevant to the carer, in considering the options that are available for the patients treatment and care, the provision of support to the patient; and the preparation and review of any treatment, support and discharge. 14.2.4 A patients carer may indicate the extent to which the carer wants to be given information or be involved in the above matters. 14.3 Right to information about, and to be involved in, patients treatment and care.

14.3.1 A carer of a voluntary patient who has capacity to consent may be provided with information with the consent of the voluntary patient. 14.3.2 A carer of a voluntary patient who does not have the capacity to consent shall be provided with information unless the treating psychiatrist reasonably believes that it would not be in the patients best interests if the carer were to be provided with information or be involved.

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14.3.3 A carer of an involuntary patient or mentally impaired accused who has capacity to consent and provides that consent can be provided with information. 14.3.4 A carer of an involuntary patient or mentally impaired accused who has capacity to consent but unreasonably refuses to consent may be provided with information. 14.3.5 A carer of an involuntary patient or mentally impaired accused who does not have the capacity to consent shall be provided with information unless the treating psychiatrist reasonably believes that it would not be in the patients best interests if the carer were to be provided with information or be involved. 14.4 Requirement to ask a patient to give consent to carer being involved.

14.4.1 When a voluntary patient, involuntary patient or mentally impaired accused is admitted to a hospital, or is made subject to a CTO, or when a treatment, support and discharge plan is being prepared, the patient is to be asked whether or not he or she has a carer, and if they do whether the carer can be provided with the followinga) Information about the mental illness for which the patient is being treated; b) If the patient is an involuntary patient, the grounds on which the involuntary order was made; c) The treatment proposed to be provided and any other treatment options that are available; d) The patients rights and entitlements and how they can be exercised; and e) Services available to meet the patients needs; 14.4.2 The information must be provided to the carer in a language and form of communication the carer is likely to understand. 14.4.3 Carers should as far as practicable and appropriate be involved in decisions about treatment including proposed treatments and discharge planning. 14.4.4 When a discharge plan is being prepared the psychiatrist must ask the patient if he or she has a carer and whether they would like the carer involved in the discharge planning and given a copy of the plan. 13.4.5 Even if the patient does not give consent the carers may be given information and be involved if the psychiatrist decides that the patient has unreasonably withheld consent or that it would be in the best interest of the patient to involve the carer and give them information. 14.4.6 When a person is being made subject to a CTO the supervising psychiatrist must ask whether the patient has a carer or not and if they do whether they consent to being provided with information in connection with the CTO. 14.4.7 However even if the patient on a CTO does not give consent the carers may be given information and be involved if the psychiatrist decides that the patient

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has unreasonably withheld consent or that it would be in the best interest of the patient to involve the carer and give them information. 14.4.8 A patient who has given consent can at any time withdraw that consent. 14.4.9 A patient who has not given consent may give consent at any time. 14.4.10 If a patient has refused to give consent or withdrawn consent they should be asked periodically whether they have changed their mind and are now willing to consent to a carer being given information or involved in the patients care.

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Part 15: Children who have a mental illness

Reading notes
The 1996 Act does not make special provision for patients who are children. The 2003 Holman Review made a number of recommendations in this area, including the introduction of a new Part of the Act dealing specifically with children. Part 15 of the draft Bill affirms that the best interests of the child should be the paramount consideration in the performance of functions under the Act. It also requires consideration of the childs wishes and those of the childs parent or guardian, and segregation of child and adult patients in mental health services where appropriate. Note that provisions relating to the administration of ECT to children are contained in Part 11 Regulation of certain kinds of treatment and other interventions. Part 17 Mental health advocacy services provides for specialist youth advocates, while Part 18 Mental Health Tribunal affords children a right to fast-tracked review of involuntary patient status. The draft Bill does not include the Holman Review recommendations relating to competent minors on the basis that it is not considered desirable for mental health legislation to vary the common law in this area.

What is in the draft Bill?

15.1 Best interest of a child is a paramount consideration 15.1.1 When performing a function under this Act consideration must be given to the wishes of the child. 15.1.2 When performing a function under this Act consideration must be given to the views of the childs parents or guardians 15.2 Voluntary admission and discharge 15.2.1 A child may apply to a mental health service to be admitted as a voluntary patient or be discharged at any time; 15.2.2 A parent or guardian of a child may apply for the child to be admitted as a voluntary patient or be discharged at any time. 15.2.3 It is preferred that a child is admitted to age appropriate facilities. When this cannot occur the person in charge of the hospital must make all efforts to ensure the care and protection of the child. Guidelines on the care and management of children in adult facilities will be provided.

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15.3

Children who are in-patients: segregation from adults

15.3.1 A child must not be admitted to a mental health service unless the person in charge of the service is satisfied that the service can provide the child with treatment and care that is appropriate having regard to the childs age, maturity, gender, culture and spiritual beliefs. 15.3.2 And that the treatment and care can be given in a part of the mental health service that is separate from where adults are treated and cared for. 15.4 Involuntary status 15.4.1 Children may be made involuntary patients but the initial period of detention should be no longer than 14 days. 15.4.2 A review of the involuntary status by the Mental Health Tribunal will occur within 10 days and 28 days for subsequent reviews. 15.4.3 A parent or guardian can be requested to attend a review unless the Mental Health Tribunal approves an application from the treating psychiatrist that it is not in the best interest of the child for the parents or guardians to be present. However a review should not be postponed because no parent or guardian attends.

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Part 16: Complaints about mental health services

Reading notes
The 1996 Act provides little information about making complaints and complaint handling processes. Part 16 of the draft Bill affirms the right to make a complaint and seeks to ensure that the Health and Disability Services Complaints Office is empowered to deal with complaints stemming from mental health services, including in relation to an alleged breach of the Charter of Mental Health Care Principles. See Part 3 and Schedule 1 of the draft Bill for more information about the Charter.

What is in the Bill?

16.1 Making complaint

16.1.1 A person may make a complaint about a mental health service, either in the present or the past which was provided to the person or another person. 16.1.2 The complaint may be made in accordance with the service providers complaints procedure or under this Part of the Act. 16.1.3 The person in charge of a service provider must ensure that there is a complaints procedure for investigating any complaint. 16.1.4 The complaints procedure must be reviewed regularly and revised as necessary. 16.1.5 The most recent version of the Complaints Procedure must be made available at the service, on any website run by the service and given to anybody who requests a copy. 16.2 Information about complaints

16.2.1 Complaints may be made about any mental health service and specifically a complaint with regard to a possible breach of the Mental Health Care Charter. 16.2.2 Despite any rules regarding confidentiality the CEO may request information from the Director of the Health and Disability Services Complaints Office (HaDSCO) with regard to any complaint about a mental health service lodged with HaDSCO.

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Part 17: Mental Health Advocacy Service

Reading notes
The 1996 Act established a Council of Official Visitors (COV) to inspect facilities and support involuntary patients and residents of psychiatric hostels. Part 17 of the draft Bill provides for a mental health advocacy service to replace the COV. The change of name reflects the proposed services emphasis on personal advocacy rather than facility inspections. Under the proposed changes, the types of patients who can access advocacy support will be expanded to include referred persons and some voluntary patients. There will be a new requirement that every involuntary patient be contacted or visited by an advocate within seven days. The advocacy service will be led by a Chief Mental Health Advocate appointed by the Minister for Mental Health and its annual report will be tabled in Parliament ensuring a level of independence commensurate with the COV. Special powers to access information are retained. These proposed reforms have been informed by the recommendations of the 2003 Holman Review and the 2011 Henderson Report on quality assurance.

What is in the Bill?

17.1 Preliminary matters

17.1.1 The name of the Council of Official Visitors will change to the Mental Health Advocacy Service with a Chief Mental Health Advocate (CMHA). 17.1.2 The term affected person will change to identified person and will includea) Voluntary patients in hospital and with the discretion of the CMHA voluntary patients in the community. b) Referred persons before and after they have been detained in an authorised or general hospital or other place; c) An involuntary patient either detained in an authorised or general hospital or on a CTO; d) A person who under the Criminal Law Mentally Impaired Accused Act is on an Hospital Order; e) A mentally impaired accused subject to a custody order awaiting placement by the Mentally Impaired Accused Review Board; f) A mentally impaired accused on a conditional release order; or g) A resident of a private psychiatric hostel who has or may have a mental illness and is being provided with treatment or care. 17.2 Mental Heath Advocates

17.2.1 The term official visitor will change to mental health advocate and the CMHA will engage people as mental health advocates on terms and conditions as appropriate.

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17.2.2 Anyone can be engaged as a mental health advocate, however, the CMHA in appointing a person must consider whether the qualifications and experience of the person are appropriate for performing the functions of a mental health advocate. 17.2.3 A mental health advocate may be engaged by or have a disqualifying interest in an organisation that provides care and treatment for identified persons but must not perform any functions as a mental health advocate to an identified person who is being provided with care and treatment by that organisation. 17.2.4 A disqualifying interest is any financial interest either the advocate or a person closely related to the advocate such as a spouse, de facto partner, child, business partner or employee of the advocate, has with the organisation. 17.2.5 The CMHA may terminate the appointment of a mental health advocate if satisfied that the advocate has engaged in misconduct, has performed incompetently, has neglected to perform or is incapable of performing the functions of a mental health advocate. 17.2.6Mental health advocates will be provided with Identity Cards which will be evidence of their appointment and must be displayed whenever working as an advocate. 17.3 Functions of Chief Mental Health Advocate The CMHA has these functionsa) ensuring that identified persons are visited as soon as practicable after a request and within seven days when a person is detained.; b) as an advocate for patients of mental health services, promoting compliance by the mental health service with the Mental Health Care Charter; c) preparing and publishing information about the role of mental health advocates and how to contact the CMHA; d) developing standards and protocols for the performance by mental health advocates of their functions under this Act; e) ensuring that mental health advocates receive adequate training in relation to the performance of their functions; f) providing advice and assistance to mental health advocates in relation to the performance of their functions; g) ensuring compliance with any directions given by the Minister or the CMHA ; h) any other functions conferred on the CMHA by this Act. 17.4 Functions of the MHAS advocates Each mental health advocate has the following functions-

17.4.1 Contact or visit identified persons as soon as practicable after a request or within 7 days when a person is made an involuntary patient or in relation to a child within 24 hours for a visit from a Youth Advocate or within a reasonable time in relation to a voluntary patient, but 24 hours for a child who is a

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voluntary patient. 17.4.2 Inquire into and report on the extent to which an identified person has been informed of their rights and the extent to which those rights have been respected; 17.4.3 Hear, inquire into and seek to resolve complaints made by or on behalf of identified people about their detention, treatment or care by mental health services; 17.4.4 Assist identified people to access legal services. 17.4.5 Assist identified persons to protect and enforce their rights by helping them to apply to the Mental Health Tribunal or State Administrative Tribunal and if authorised represent them at those Tribunals. 17.4.6 Assist identified persons to obtain the assistance of the Public Advocate in relation to applications to the Guardianship Board or the State Administrative Tribunal or in making complaints under Disability Services Act. 17.4.7 In consultation with medical practitioners and mental health practitioners who are responsible for the care and treatment of the identified person, assist the person to access other services. 17.4.8 In carrying out a function a mental health advocate may do anything necessary or convenient for the performance of the function. 17.4.9 Requests to be contacted by a mental health advocate may be made by the patient or by a person who sufficient interest in the treatment and care of the identified person such as a carer or nominated person. 17.4.10 If the request is made to the mental health service then the service must inform the MHAS. 17.5 Specific powers of mental health advocates

17.5.1 A mental health advocate can inquire into the admission and detention of the identified person and also the care and treatment provided. 17.5.2 An employee of the mental health service must answer questions and/or provide information, make available any documents in relation to the identified person for inspection from which a copy may be taken and provide any reasonable assistance the advocate needs. 17.5.3 A mental health advocate cannot inspect and make copies of documents related to the identified person unless either the identified person gives consent or if they do not have a capacity to give consent then a guardian or nearest relative gives consent. 17.5.4 Before a staff member gives the advocate the identified persons documents

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the person in charge of the mental health service must advise the mental health advocate of any information which if disclosed to the identified person would, in the opinion of the person in charge have a serious adverse effect on the health or safety of the identified person or another person or reveal personal information (as defined in the Freedom of Information Act 1992 in the Glossary clause 1) about an individual who is not the identified person unless the person gives consent, or reveal information that was provided in confidence and continues to retain its confidential character; 17.5.5 If such a request is made of the mental health advocate a note must be put in the identified persons medical record; 17.6 Unresolved issues or complaints-

17.6.1 If a mental health advocate is unable to resolve an issue or for another reason considers it appropriate, they may refer the matter to the CMHA. 17.6.2 The CMHA may provide a report to the mental health service or where appropriate to the private psychiatric hostel or the Chief Psychiatrist requesting a further inquiry or investigation and any recommendations which may result. 17.6.3 However this does not give the CMHA or other advocates any authority to take over responsibility for any aspects of the operation of a mental health service or of an identified persons treatment or care or to direct a mental health service employee. 17.7 Interfering with exercise of powers

17.7.1 It is an offence if an employee of a mental health service, without reasonable excuse, does not answer a question or provide information to an advocate when asked to. 17.7.2 When complying with such a request it is an offence to knowingly give false or misleading information including providing a false or misleading document. 17.7.3 Staff should offer all reasonable assistance to a mental health advocate and it is an offence if, without reasonable excuse, a person obstructs or hinders an advocate when exercising their powers under the Act. 17.7.4Staff who do interfere with the advocates exercise of powers may be liable for a fine of $6000. 17.8 Internal complaints procedure.

17.8.1 The CMHA must make sure that there is a procedure for the investigating of any complaint about the advocacy service, any mental health advocate or any staff of the mental health advocacy service. 17.8.2Any person who requests a copy of the procedure should be provided with

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one. 17.9 Administrative issues

17.9.1 The CMHA may determine the MHAS procedures and delegate his or her powers. 17.9.2 As soon as practicable after the end of each financial year the CMHA must prepare and give to the Minister an annual report which will be laid before Parliament.

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Part 18: Mental Health Tribunal (MHT)

Reading notes
The 1996 Act establishes a Mental Health Review Board (MHRB) to review involuntary treatment orders. The MHRB has the power to make an involuntary patient no longer involuntary and change aspects of CTOs. The draft Bill proposes that the MHRB be replaced by a new Mental Health Tribunal. In addition to performing the existing review function, the Tribunal will have a number of new roles including: Reviewing treatment, support and discharge plans; Authorising the administration of ECT to involuntary patients; and Issuing compliance notices in respect of breaches of specified obligations under the Act. Other important changes in Part 18 relate to the timeframes for mandatory review of involuntary status. Where the patient is an adult, the Tribunal will be required to review their involuntary status within 35 days, reduced from the current period of 56 days under the 1996 Act. For children, the period is reduced to 10 days. Part 18 also enables the Tribunal to review the circumstances of voluntary patients who have been in hospital for a period of more than twelve months. Note that review of Tribunal decisions by the State Administrative Tribunal is dealt with in Part 19 of the draft Bill.

What is in the draft Bill?

18.1 Establishment and Administration

18.1.1 The MHT will consist of a President and a number of members. 18.1.2 The President will be a lawyer. 18.1.3 Members will be lawyers, psychiatrists or persons who are neither lawyers nor psychiatrists and referred to as community members. 18.1.4 At review Tribunals will consist of one lawyer, one psychiatrist and one community member, the lawyer being the chair. 18.1.5 If no psychiatrist member is able to attend a medical practitioner may replace the psychiatrist as long as clinical matters in regard to psychiatry are not under review. 18.1.6 Tribunals reviewing matters in relation to psychosurgery will consist of five persons, four Tribunal members and a person appointed to the Tribunal who will have specific expertise in neurosurgery.

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18.1.7 Tribunals reviewing matters in relation to children will ensure that the psychiatrist member has specific expertise in the care and treatment of children. 18.1.8 Reviews may be conducted by audio-visual means. 18.1.9 A Registrar will be appointed to ensure the administrative processes of the Tribunal are sound and will be responsible for a number of administrative matters such as gathering information and scheduling reviews. 18.1.10 At the direction of the Minister of Mental Health the Tribunal can enquire into and report to the Minister on any matter to do with the administration of the Act. 18.1.11 It is an offence to publish any information about a hearing which could lead to the identification of the patient or any other party to the hearing except for when a transcript of evidence is requested and prepared in relation to reasons for decisions or the publication is genuinely intended for use by members of the profession to be kept in a Law Journal or other technical publication. 18.1.12 As soon as practicable after the end of each financial year the MHT must prepare and give to the Minister an annual report which will be laid before Parliament. 18.2 When might a Review be scheduled

18.2.1 An involuntary patient, a mental health advocate or another person who has sufficient interest in the matter may request a review by the Tribunal. 18.2.2 If no review is requested the Tribunal will review the involuntary status of the patient and any treatment, support and discharge plan for an adult within 35 days of the person becoming involuntary and for a child within 10 days of the order being made. 18.2.3 The Tribunal conducts periodic reviews at 3 months after the end date of the initial order in relation to adults and 28 days in relation to children. For adults the reviews must occur in the 14 days before the end of the continuation order and for children within 7 days before the end of the continuation order. 18.2.4 An application for review may be made at any time except within 21 days after the Tribunal has made a decision which considered substantially the same issues as being raised by this application 18.2.5 In relation to CTOs which have been continuously in force for 12 months a mandatory review will be conducted 6 months from the last date of the previous order. 18.2.6 The Tribunal does not need to review an order on a mandatory basis within the timeframes if there was a period of 7 days or less when the person was

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not an involuntary patient. 18.2.7 In relation to certain voluntary patients who have been inpatients in an authorised hospital, the Chief Mental Health Advocate may request a review on behalf of the patient. 18.2.8 The Tribunal may conduct a review on its own initiative where it feels it is appropriate. 18.3 Reasons for conducting a review

18.3.1 When requesting a review the person may specifically ask for a review on the following issues: a) To consider whether a person should continue to be treated as an involuntary patient. b) To consider whether a person should continue to be detained in an authorised or general hospital. c) To consider whether an involuntary patient should be transferred from a General Hospital to an Authorised Hospital or from one Authorised Hospital to another, even if that transfer request has been refused by the psychiatrist. d) To consider transfer of the patient care on a CTOs from one Supervising Psychiatrist to another psychiatrist even if that request has been refused by the psychiatrist. e) To consider transfer of the patient on a CTOs care from one Treating Practitioner to another practitioner even if that request has been refused by the treating team. 18.3.2 To approve the provision of Electroconvulsive Therapy to an involuntary patient. 18.3.3 To approve the provision of psychosurgery to any person. 18.3.4 Review the decision to restrict or deny specific rights to inpatients such as sending or receiving mail, making or receiving phone calls and having visitors. 18.3.5 To review the Treatment, Support and Discharge plan. 18.3.5 Jurisdiction in relation to nominated persons to declare that a nomination is valid or invalid, varying the terms of a nomination or revoking a nomination. 18.3.6 Review of a voluntary patient who has been in hospital continuously for over 12 months 18.4 Prior to a review

18.4.1 A notice of application and notice of hearing for a review must be given to the patient, a guardian, a nominated person or a carer. 18.4.2 If the patient is a child a copy must also be given to the parents.

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18.4.3 A party to the hearing (patient/ carer/ parent/ nominated person) may appear personally. 18.4.4 The Tribunal may order that a party be represented if it is in the best interests of the patient. 18.4.5 Patients may also have legal representation or be supported by an advocate from the MHAS and the legal representative should have full access to the patients medical record. 18.4.6 An application or other document required to be made or given to the Tribunal must be lodged at the office of the Tribunal 18.5 Conduct of a review

18.5.1 A review must be conducted with as little formality and technicality, and with as much expedition, as a proper consideration of the matter before the Tribunal permits. 18.5.2 At a review, the Tribunal is bound by the rules of natural justice. 18.5.3 The practice and procedure of the Tribunal is governed by Rules which are published in the Gazette and which are necessary or convenient for the Tribunal to operate efficiently, economically and expeditiously. 18.5.4 Rules which are to be drawn up may include matters such as the a) Tribunal must be provided with information about the patient including access to the patients medical record, a psychiatric report and a plan; or b) That it is preferable for the treating psychiatrist to attend the review and if he or she is unable to, a representative from the treating team who is familiar with the patients care and treatment should attend; or c) That it is preferable for the patient to attend the review and every effort should be made to facilitate the Tribunal hearing directly from the patient however if a patient does not attend the Tribunal may proceed with the review or adjourn the matter. 18.5.5 If no rule governs a particular practice or procedure then the Tribunal can make a determination about a particular procedure. 18.5.6 The Tribunal may, if satisfied that a proceeding is frivolous or vexatious or has been brought for an improper purpose, dismiss the proceeding, and make any order as to costs that the Tribunal considers appropriate and may also order that no further proceedings can be started without the permission of the Tribunal. 18.5.7 An adult may represent themselves at a hearing or the Tribunal may make an order for the person to be represented if the Tribunal feels it would not be in the best interest of the patient to represent themselves.

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18.5.8 A child with sufficient maturity may represent themselves or be represented by the childs parent or guardian, a Youth Advocate or another person who in the Tribunals opinion can represent the childs interests. 18.5.9 Even though a child may be represented by someone else it does not prevent the child expressing his or her own views about any matter which comes up at the hearing. 18.5.10 A child without capacity may be represented by a parent, guardian, Youth Advocate or another person who in the Tribunals opinion can represent the childs interests. 18.5.11 The Tribunal may make arrangements for a party to a proceeding to be represented at a hearing if the party wants the Tribunal to make such an arrangement on the partys behalf. 17.5.12 A hearing is not open to the public unless the Tribunal orders that the hearing or a part of the hearing is open to the public. 18.5.13 The Tribunal may permit or exclude a person from the hearing. Including a person who may be representing the patient if the Tribunal believes in would be in the best interest of the person to be at the hearing or excluded from the hearing. 18.5.14 On application from the psychiatrist a Tribunal may exclude a parent or guardian attending a review if it is the Tribunals view that it would not be in the childs best interest for the parent or guardian to be present at the hearing. 18.5.15 The Tribunal is not bound by the rules of evidence but may inform itself of a matter relevant to a proceeding in any way the Tribunal considers appropriate. 18.5.16 Evidence nay be given orally or in writing and if the Tribunal want to can insist the person gives evidence under oath or by affidavit. 18.5.17 The lawyer Tribunal member can direct a person to answer a question or produce a document and a person appearing as a witness has the same protection and immunity as a person appearing before the Supreme Court. 18.5.18 The Tribunal can issue a summons requiring a person to attend a hearing, and provide evidence or a document 18.5.19 A person is not excused from giving evidence on the grounds that the answer to a question or the production of a document might tend to incriminate the person or expose the person to a criminal penalty. However, any answer given or document produced under a direction or a summons is not admissible in evidence in any criminal proceedings against the person other than in relation to an offence below. 18.5.20 A person commits an offence if without reasonable excuse they refuse

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to swear an oath or affirm, or refuse to answer a question of produce a document, or refuse to attend or give an answer or produce a document which the person knows to be false or misleading. 18.5.21 A person also commits an offence if they willfully insult the Tribunal or willfully interrupt or obstruct the hearing, or create a disturbance or continue a disturbance at a hearing. 18.5.22 Every hearing will be recorded so that if a transcript is necessary it can be done. 18.6 Things that the Tribunal must consider

18.6.1 The patients psychiatric condition. 18.6.2 The patients medical and psychiatric history. 18.6.3 The patients social circumstances. 18.6.4 A Treatment, Support and Discharge plan (a plan) provided to the Tribunal by the psychiatrist. 18.7 Treatment, Support and Discharge plan

18.7.1 The psychiatrist must ensure that a plan written on a prescribed form is provided to the Tribunal in time for a review hearing. 18.7.2 The Tribunal may make recommendations in regard to the plan and where appropriate adjourn the hearing to a date to be determined to reconsider any revised plan. 18.7.3 As the plan is a clinical matter the Tribunal is unable to oblige the treating team to alter a plan but they may request clinical justification for the content of a plan. 18.8 What the Tribunal may do on completing a review.

18.8.1 Make the person no longer an involuntary patient. 18.8.2 Direct a psychiatrist to make a person subject to a CTO within a reasonable period specified in the direction and in line with the terms of a CTO. The psychiatrist may apply to the Tribunal during this period for a review of their direction. 18.8.3 Vary the conditions of a CTO in line with the terms of the order. 18.8.4 The Tribunal may adjourn a hearing in order to receive further information or for the psychiatrist to consider recommendations in relation to the plan. 18.8.5 The Tribunal may suspend the operation of any relevant order or restrain the

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doing of anything or anything further until the application has been determined or the review concluded. 18.8.6If a requested review does not result in the involuntary order being cancelled the patient, a mental health advocate or another person who has sufficient interest in the matter may request a further review. However the Tribunal can delay scheduling a further review for 28 days unless there are substantially different issues the Tribunal could consider in making a determination. 18.8.7 Any party to a hearing may, within 14 days, request a reasons for decision which the Tribunal must comply with. 18.8.8Any person who does not comply with a decision by a Tribunal commits an offence for which there is a penalty. 18.9 Approval of ECT

18.9.1 A treating psychiatrist may apply to the Tribunal in writing for approval to give ECT. 18.9.2 The application must give the reasons why the treating psychiatrist is recommending that ECT be given. 18.9.3 There must be a treatment plan in relation to the ECT, including a) the name, qualifications and experience of the medical practitioner who it is proposed will perform the electroconvulsive therapy; and b) the name and address of the place where the treatment will be given; and c) the maximum number of ECT treatments it is proposed will be performed; and d) the maximum period over which it is proposed to perform that number of treatments; and e) the maximum period that it is proposed will elapse between each 2 treatments. 18.9.4If the ECT is for a child then the Tribunal must have a child and adolescent psychiatrist on the Tribunal. 18.9.5 The Tribunal in approving ECT must be satisfied thata) giving the ECT has clinical merit and is appropriate in the circumstances; b) the medical practitioner who will perform the ECT is suitably qualified and experienced; c) the place where the treatment will be given is a suitable place. 18.9.6 The Tribunal must have regard to the patients wishes, to the extent those wishes can be ascertained particularly if the patient has made an Advance Health Directive or any terms of an enduring power of guardianship;; a) if the patient is a child, the views of the patients parent or guardian; b) if the patient has reached 18 years of age and does not have the capacity to give informed consent to the ECT being performed, the person who is authorised by law to give that consent on the patients behalf if that consent were required;

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c) if the patient has a nominated person, the views of the nominated person; d) if the patient has a carer, the views of the carer; e) the consequences for the treatment and care of the patient if the ECT is not performed; f) the nature and degree of any significant risk of performing the ECT; g) whether the ECT is likely to promote and maintain the health and wellbeing of the patient; h) whether any alternative treatment is available; i) the nature and degree of any significant risk of providing any alternative treatment that is available 18.9.7 The Tribunal may decide on the application by a) approving the ECT being performed in accordance with the treatment plan set out in the application; or b) approving the ECT being performed in accordance with the treatment plan set out in the application subject to the maximum number of treatments being reduced to the number specified by the Tribunal; or c) refusing to approve the ECT being performed. 18.10 Approval for the giving of psychosurgery 18.10.1 The Bill provides details for the giving of psychosurgery, however as this is a rare event this guide does not provide details and readers who are interested are requested to read the draft Bill directly. 18.11Review of decisions restricting or denying patients rights 18.11.1 Inpatients rights to communicating with others by making or receiving phone calls, letters, e-mails, or texting, or giving visitors may be restricted or denied if it is deemed that exercising these rights is not in the patients best interests. 18.11.2 In those circumstances the inpatient or another person such as an advocate, carer or nominated person may request a review by the Tribunal of this restriction or denial. 18.11.3 The Tribunal may uphold, evoke or recommendations regarding the restriction or denial. 18.12 Jurisdiction in relation to Nominated Persons 18.12.1 A person who in the opinion of the Tribunal has a proper interest in matter may apply to the Tribunal to validate a nomination or vary the terms of a nomination. 18.12.2 The Tribunal may also revoke a nomination if satisfied that the nominated person is not an appropriate person to perform the role because a) the person is likely, in performing that role, to adversely affect to a significant degree the interests of the person who made the nomination; b) the person is not capable of performing that role because of mental or physical

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incapacity; c) the person is not willing, or is not reasonably able, to perform that role. 18.3 Review of voluntary inpatients

18.3.1 This applies to a voluntary inpatient who has been in hospital continuously for over 12 months. 18.3.2 The patient themselves, a mental health advocate or anyone with sufficient interest in the matter may apply for a review. 18.3.3 If the review is on a child then a child and adolescent psychiatrist should be the psychiatric member of the Tribunal. 18.3.4 The Tribunal must have regard to the in-patients psychiatric condition, medical and social history and social circumstances. 18.3.5 On completing a review the Tribunal may recommend that the treating psychiatrist consider whether or not there is still a need for the voluntary inpatient to be in the authorised hospital. 18.4 Compliance Notices 18.4.5 A patient or another person an aspect of the legislation applies to or anyone with sufficient interest in the matter may apply to the Tribunal for a compliance notice to be served on a mental health provider if it appears to the Tribunal that a provider has not complied with a requirement under the Act. 18.4.6 The Tribunal itself may also serve a compliance notice. 18.4.7 The compliance notice may require the provider to comply within a specified period and report to the Tribunal if the action has been taken and if not taken why it has not been taken. 18.4.8 Before issuing a compliance notice the Tribunal should consider whether it would be more appropriate to refer the matter to the CEO of the service provider or the Chief Psychiatrist or the National Health Practitioner Board.

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Part 19: Review by the State Administrative Tribunal (SAT)

Reading Notes
Part 19 of the draft Bill affords the State Administrative Tribunal power to review decisions of the Mental Health Tribunal. This is consistent with the State Administrative Tribunals existing jurisdiction under the 1996 Act in relation to decisions of the MHRB.

What is in the Bill?

19.1 If a person is dissatisfied with the decision made by the Tribunal, he or she may, without payment of a fee, apply to the SAT for a review of the decision. 19.2 If the person is made no longer involuntary either before or after the application to SAT, SAT must give leave of approval for the SAT review to be conducted. 19.3 Before completing a review and if the person is still an involuntary patient and if in the view of SAT there has been a change in the persons mental or psychiatric condition or a change in the persons social or other circumstances the SAT may send the matter back to the MHT for a further review with any directions or recommendations SAT considers appropriate. 19.4 A patient or any other person who has a sufficient interest in the decision of the MHT and who is dissatisfied about that decision in regard to ECT or psychosurgery may make an application to SAT for that decision to be reviewed.

19.5 A number of the rules for proceedings that apply to Tribunals similarly apply to SAT reviews.

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Part 20: Administration

Reading Notes
Part 20 deals with the appointment, powers and functions of the Chief Psychiatrist and other administrative matters relating to mental health practitioners, authorised hospitals, approved forms, guidelines and standards. The current Health Legislation Administration Act 1984 provides for the appointment of a Chief Psychiatrist within the Department of Health. The intent is for the appointment of the Chief Psychiatrist to be brought under the Mental Health Act, and for the position itself to be located within the Mental Health Commission. This will require consequential amendments to the Health Legislation Administration Act 1984. The functions and powers of the Chief Psychiatrist set out in the draft Bill are broadly similar to those in the 1996 Act. The Chief Psychiatrists power to issue treatment directions in respect of involuntary patients is among those retained in the draft Bill. Changes from the 1996 include additional reporting obligations and a requirement that persons in charge of mental health services report notifiable incidents to the Chief Psychiatrist.

What is in the draft Bill?

20.1 The Chief Psychiatrist

20.1.1 The Minister may appoint a psychiatrist recommended by the CEO to be the Chief Psychiatrist. 20.1.2 The Chief Psychiatrist will hold the position for 5 years and is eligible for reappointment. 20.1.3 The Chief Psychiatrist may resign from the position or removed from the position on the grounds of mental or physical incapacity, incompetence, and neglect of duty or misconduct. 20.1.4 The Chief Psychiatrist has responsibility for the oversight of the treatment and care of all voluntary patients being provided with treatment and care by a psychiatric out-patients clinic, a community mental health service and a health service that provides treatment or care to people who have or may have a mental illness, as well as the oversight of the treatment and care of involuntary patients, mentally impaired accused detained in authorised hospitals, and referred persons whether detained or not; 20.1.5 The Chief Psychiatrist will set standards for the treatment and care to be provided by mental health services, and oversee compliance with these standards. 20.1.6 The Chief Psychiatrist may approve guidelines for use by mental health

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services to ensure compliance with the Act.. 20.1.7 The Chief Psychiatrist may review any decision by a psychiatrist in relation to an involuntary patient and affirm, vary, revoke or substitute the decision. The Chief Psychiatrist must inform the psychiatrist about the decision in writing and give directions about implementing the decision and the psychiatrist must comply with the directions. 20.1.8 The Chief Psychiatrist may without notice visit any authorised hospital or other mental health service if he or she suspects that proper standards of treatment and care have not been maintained. 20.1.9 While visiting a mental health service the Chief Psychiatrist may inspect any part of the mental health service and interview any patient 20.1.10 The Chief Psychiatrist may require a staff member to answer questions or provide information about the treatment or care to patients or produce any medical records or other documents relating to the treatment or care that has been, or is being, provided. 20.1.11 Staff are to give reasonable assistance to the Chief Psychiatrist and he or she can inspect, or take copies of or extracts from, any medical records or other documents. 20.1.12 It is an offence to interfere with these visits, or not answer questions or give false and misleading information. 20.1.13 The Chief Psychiatrist may request information from mental health services relevant to the treatment and care of patients and any such disclosure will not be regarded as a breach of confidentiality, or a breach of professional ethics or standards or make the person civil or criminally liable. 20.1.14 The Chief Psychiatrist must be notified of any of the following incidents: (a) the death of any voluntary or involuntary patient, a referred person or a mentally impaired accused in an authorized hospital; (b) an error in any medication prescribed for, or administered or supplied to a patient or referred person that has had, or is likely to have, an adverse affect on the person; (c) any other incident in connection with the provision of treatment or care to the person that has had, or is likely to have, an adverse affect on the person; (d) a reportable incident, (unlawful sexual contact or unreasonable use of force) (e) any other event that the Chief Psychiatrist declares to be a notifiable incident. 20.1.15 The person in charge of a mental health service must report when a notifiable incident occurs to the Chief Psychiatrist as soon as is practicable after becoming aware of the incident. 20.1.16 The report will be in an approved form and include

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a) b) c) d) e) f) g) h)

the date on which, and the time at which, the incident occurred; the location where the incident occurred; the name, and legal status of the person (ie: voluntary patient etc) the names of any staff members who were involved in the incident; the names of any other people who were involved in the incident; the names of any staff members who witnessed the incident; the names of any other people who witnessed the incident; a description of the incident and the circumstances in which it occurred

20.1.17 Having received such a report the Chief Psychiatrist may: a) Investigate the incident; b) Report the incident either at the end of an investigation or any time before that to the CEO, the Director General of Health or the National Health Practitioners Board; c) Take no action. 20.1.18 If having referred the matter or decided to take no action the Chief Psychiatrist cannot then further investigate the incident. 20.1.19 At the completion of an investigation the Chief Psychiatrist must inform the mental health service and patient involved of the results of the investigation and any outcome from the decision made. 20.1.20 The Chief Psychiatrist may in writing delegate his or her powers to another psychiatrist. However that psychiatrist cannot delegate the powers to another psychiatrist. 20.1.21 As soon as practicable after the end of each financial year the Chief Psychiatrist must prepare and give to the Minister an annual report which will be laid before Parliament and will include statistical information about ECT, Emergency Psychiatric Treatment, Seclusion and Bodily Restraint. 20.1.22 The Chief Psychiatrist must approve and publish forms related to the Act and also publish guidelines as to how to complete any of the approved forms. 20.1.23 The Chief Psychiatrist must publish guidelines in relation to the provision of independent second opinions and the preparation of treatment, support and discharge plans.

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20.2

Authorised Mental Health Practitioners (AMHPs)

20.2.1 The Chief Psychiatrist may, by order published in the Gazette, designate a mental health practitioner as an AMHP if satisfied that the practitioner has the qualifications, training and experience appropriate for performing the functions of an AMHP. 20.2.2 The order may specify any limits or conditions with regard to the role. 20.2.3 The Chief Psychiatrist may also revoke any authorisation. 20.2.4 The Regulations will specify what training, qualifications and experience the Chief Psychiatrist requires of AMHPs, as well as details about notifications and grounds for an authorisation to be revoked. 20.3 Authorisation of hospitals

20.3.1An authorised hospital is (a) a public hospital, or part of a public hospital, which the Governor has authorized as an Authorised Hospital in the Government Gazette; or (b) a private hospital the licence for which is endorsed under the Hospitals and Health Services Act 1927 section 26DA(2). 20.3.2 An authorized hospital is a hospital authorized to receive involuntary patients and the receival of referred persons. 20.3.3 The Governor by order in the Gazette may revoke the authorization of a hospital. 20.3.4 Any involuntary patients in an authorized hospital whose authorization has been revoked must be transferred to another authorized hospital. 20.4 Other responsibilities. 20.4.1 The Chief Psychiatrist has responsibilities in regard to approving medical treatment and emergency ECT which are detailed earlier in this guide. 20.4.2 The Chief Psychiatrist has specific duties in relation to involuntary patients in a general hospital. 20.4.3 A person may make a request to the Chief Psychiatrist about whether a person has been admitted or detained and if the Chief Psychiatrist feels the person has sufficient interest in the matter may inform them of the date the person was admitted or detained, discharged or released and if the person has died when that occurred.

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Part 21: Interstate arrangements

Reading Notes
Although the 1996 Act includes a Part on interstate movements, no agreements were made with other states and territories on the basis of legal advice. Part 21 of the draft Bill will allow the making of intergovernmental agreements and recognition of corresponding laws.

What is in the draft Bill?

21.1 Intergovernmental agreements

21.1.1 The Minister may enter into an agreement with a Minister responsible for administering a corresponding law about any matter in connection with the administration of this Part or a corresponding law. 21.1.2 The Minister may by notice published in the Gazette declare that an agreement has come into effect and also revoke such a declaration. 21.1.3 A person can not perform a function authorized in this part unless there is an intergovernmental agreement. 21.1.4 A person who is authorised to perform a function under this Act may perform any similar function under a corresponding law or an intergovernmental agreement 21.2 Transfer to or from interstate mental health services

21.2.1 The person in charge of an authorised hospital may, with the written approval of the Chief Psychiatrist, make a Transfer order in the approved form authorising the transfer of a State in-patient, including a State patient at large, from the authorised hospital to the interstate mental health service specified in the order. 21.2.2 A copy of the order must be given to the patient, any carer, guardian, parent if the person is a child or nominated person involved as well as sending a copy to the Interstate Hospital. 21.2.3 The person in charge of the hospital may also make a Transport Order if he or she is satisfied that there is no safe way of transporting the person interstate other than using the police or a person prescribed in the regulations under WA or Interstate law 21.2.4 The person in charge of an authorised hospital may, with the written consent of the Chief Psychiatrist, make a Transfer Approval Order approving the transfer of a interstate in-patient, including a interstate patient at large, from an interstate mental health service to the authorized hospital in WA.

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21.2.5 On admission to the authorised hospital in WA, the interstate in-patient treatment order is taken to be an in-patient treatment order made under this Act. 21.3 Community Treatment Orders

21.3.1 The terms of a CTO may include a requirement that the involuntary community patient be provided with treatment by an interstate mental health service. 21.3.2 If the terms of an interstate CTO includes a requirement that the interstate community patient be provided with treatment by a mental health service in the State, the interstate CTO is similar to a state CTO and in force for the period for which the interstate CTO would have been in force under the other states law. 21.3.3 A person who is authorised under a corresponding law of another State or a Territory to perform a function in relation to an interstate CTO may perform that function in relation to the order in the State. 21.3.4 If a patient on a CTO fails to attend at the mental health service interstate and there is no safe way of getting the person to attend the supervising psychiatrist in WA may make a Transport Order authorizing the police or a person prescribed under the interstate Act to apprehend the person and take them to the interstate mental health service.

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Part 22: Ministerial Inquiries

Reading Notes
Part 22 of the draft Bill largely reflects Part 10 Division 5 of the 1996 Act, which authorises the Minister to initiate inquiries into the provision of mental health services. Relative to the 1996 Act, Part 22 includes some additional detail relating to evidence and how inquiries should be conducted.

What is in the draft Bill?

22.1 The Minister may appoint a person to inquire into, and report to the Minister on, any matter relating to the treatment, care or other services provided (whether under this Act or otherwise) to a person who has a mental illness.

22.2 a) b) c) d) e) f) g)

The person appointed may enter a mental health service at any time without prior notice; or any other premises at any reasonable time; and at any other time with the owners consent; and inspect the premises and any thing on the premises; require a person on the premises to answer questions, or provide information, that the person considers may be relevant to the inquiry;& require a person on the premises to produce any documents that the person considers may be relevant and h) inspect, or take copies of or extracts from these documents and i) require a person on the premises to give reasonable assistance to the person appointed.

22.3 An inquiry must be conducted with as little formality and technicality, and with as much expedition, as the inquiry permits and the person to conduct the inquiry is bound by the rules of natural justice. 22.4 The person conducting the inquiry is not bound by the rules of evidence and may receive evidence orally or in writing. 22.5 However the person may be asked to give the evidence under oath or affirmation. 22.6 A person may be directed to answer a question or produce a document.

22.7 A person giving evidence has the same protection and immunity as a person giving evidence in the Supreme Court. 22.8 A person may be summoned to give evidence or produce a document.

22.9 Rules that apply to the giving of evidence in relation to Tribunals also apply in relation to Ministerial inquiries.

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Part 23: Miscellaneous Matters

Reading notes
Part 23 of the draft Bill deals with a range of miscellaneous matters including record keeping, confidentiality and protection from liability. Included is a requirement that the Act be reviewed five years after its commencement.

What is in the draft Bill?

23.1 Protection from liability

23.1.1 An action in tort does not lie against a person other than the State for anything that the person has done or not done in good faith in the performance or purported performance of a function under this Act. 23.1.2 The protection applies even though the thing done may have been capable of being done whether or not this Act had been enacted. 23.1.2 Despite the above the State is not relieved from any liability that it might have for an act done or not done by a person against whom this section provides that an action does not lie. 23.2 Restriction on the powers of Medical Practitioners and mental health practitioners 23.2.1 A medical practitioner or mental health practitioner cannot exercise a power under this Act if the practitioner is a relative of the person; or the persons enduring guardian or guardian; or in partnership with the person; or the employer or employee of the person; or the persons supervisor or subordinate 23.3 Obstructing or hindering

23.3.1 A person who, without reasonable excuse, proof of which lies on the person, obstructs or hinders a person performing a function under this Act is liable to a fine of $6 000. 23.4 Amendment of referrals or orders

23.4.1 If a referral or order contains a formal defect such as a clerical error, accidental omission or error in description of a person it does not make the order invalid, however any person who has acted on the order may ask the person who completed the order to rectify the order. 23.4.2 If the person who made the order does not rectify the error or the person has become an involuntary patient since the order was made the person who made the request may revoke the order which in effect cancels out the involuntary status.

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23.4.3 If an order is revoked it does not prevent another order being made. 23.5 Records to be kept

23.5.1 Every mental health service must keep records in relation to any person admitted and/or given treatment which includes the following: a) the name, address and date of birth of the person; b) the nature of any illness, or mental or physical disability, from which the person suffers; c) particulars of any treatment given to the person and the authority to give the treatment, including details of any orders made; d) if the person dies the date and cause of death; e) any other information prescribed by the regulations for this subsection. 23.6 Confidentiality

23.6.1 A person must not disclose to another person, whether directly or indirectly, any personal information about an individual that was obtained because of any function the person has or had under a relevant written law such as this Act unless the disclosure is authorized because the information disclosed was: a) in the course of duty; b) under this Act or another law; c) to a court or other person or body acting judicially in the course of proceedings before the court or other person or body; d) under an order of a court or other person or body acting judicially; e) for the purposes of the investigation of a suspected offence or disciplinary matter or the conduct of proceedings against a person for an offence or disciplinary matter; f) with the consent of the individual, or each individual, to whom the personal information relates. 23.6.2 If authorized no civil or criminal liability is incurred in respect of the disclosure; and the disclosure is not to be regarded as a breach of any duty of confidentiality or secrecy imposed by law; or as a breach of professional ethics or standards or any principles of conduct applicable to a persons employment or as unprofessional conduct. 23.7 23.8 Regulations: The Governor may make Regulations prescribing matters Review of the Act after 5 years.

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Schedule 1
Charter of mental health care principles
1. A mental health service is to be respectful of human rights and treat people with dignity, equality, courtesy and compassion, and is to be free from discrimination and stigma. A mental health service is to be sensitive and responsive to diverse individual circumstances, including those relating to gender, age, culture, spiritual beliefs, family and lifestyle choices. A mental health service is to respect privacy and confidentiality. A mental health service is to be safe and accessible, is to provide treatment and care that is timely, of high quality and in accordance with the national standards for mental health services that are agreed from time to time by or on behalf of the Commonwealth, State and Territory Ministers responsible for mental health, and is to be committed to achieving the best possible outcomes. A mental health service is to provide treatment and care to Aboriginals and Torres Strait Islanders that is appropriate to and consistent with their cultural beliefs, mores and practices, having regard to the views of their families and communities. A mental health service is to clearly explain and provide information about diagnosis and treatment (including any risks, side effects and options) in a language, form of communication and terms that are likely to be understood and is to facilitate informed consent. A mental health service is to clearly explain and provide information about rights, including those relating to advocacy and access to personal information. A mental health service is to address the other physical health needs and cooccurring issues of people experiencing mental illness. A mental health service is to involve people in decision making at all times and encourage self responsibility, cooperation and choice, including peoples capacity to make their own decisions. A mental health service is to respect the right of people experiencing mental illness to involve carers and other support persons at all times, including when discussing and considering treatment. A mental health service is to be accountable, committed to continuous improvement and open to solving problems in partnership with people.

2.

3. 4.

5.

6.

7.

8.

9.

10.

11.

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12.

A mental health service is to encourage positive attitudes to mental health, including that people experiencing mental illness can and do recover and make meaningful contributions to the community. A mental health service is to recognise the range of issues that impact upon mental health and wellbeing, including relationships, accommodation, education and employment. A mental health service is to recognise the needs of children and other dependants of people experiencing mental illness.

13.

14.

NOTE: Part 3 requires: A person or service performing a function under this Act must have regard to the principles set out in the.Charter and a mental health service must make every effort to comply with the Charter when providing treatment, care and support to patients.

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Schedule 2
Prescribed areas for the purpose of extending transport and referral order
The Minister will decide which rural and remote areas will be prescribed for these purposes.

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