Chapter 3 Involuntary admission and treatment in and outside facilities
Part 1 Requirements for involuntary admission, detention and treatment
12 General restrictions on detention of persons
(1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that:(a) the person is a mentally ill person or a mentally disordered person, and(b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.(2) If an authorised medical officer is not of that opinion about a patient or other person at a mental health facility, the officer must refuse to detain, and must not continue to detain, the person.(3) An authorised medical officer may, immediately on discharging a patient or person who has been detained in a mental health facility, admit that person as a voluntary patient.
13 Criteria for involuntary admission etc as mentally ill person or mentally disordered person
(cf 1990 Act, s 8)
A person is a mentally ill person or a mentally disordered person for the purpose of:(a) the involuntary admission of the person to a mental health facility or the detention of the person in a facility under this Act, or(b) determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a mental health facility,if, and only if, the person satisfies the relevant criteria set out in this Part.
(cf 1990 Act, s 9)
(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:(a) for the person’s own protection from serious harm, or(b) for the protection of others from serious harm.(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.
15 Mentally disordered persons
(cf 1990 Act, s 10)
A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:(a) for the person’s own protection from serious physical harm, or(b) for the protection of others from serious physical harm.
16 Certain words or conduct may not indicate mental illness or disorder
(cf 1990 Act, s 11)
(1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following:(a) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief,(b) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief,(c) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy,(d) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation,(e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity,(f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity,(g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity,(h) the person engages in or has engaged in immoral conduct,(i) the person engages in or has engaged in illegal conduct,(j) the person has developmental disability of mind,(k) the person takes or has taken alcohol or any other drug,(l) the person engages in or has engaged in anti-social behaviour,(m) the person has a particular economic or social status or is a member of a particular cultural or racial group.(2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind.
Part 2 Involuntary detention and treatment in mental health facilities
In this Part:assessable person means a person detained in a declared mental health facility for whom a mental health inquiry is required to be held under this Part.
mental health certificate means a certificate given under section 19.
Division 2 Admission to and initial detention in mental health facilities
18 When a person may be detained in mental health facility
(1) A person may be detained in a declared mental health facility in the following circumstances:(a) on a mental health certificate given by a medical practitioner or accredited person (see section 19),(b) after being brought to the facility by an ambulance officer (see section 20),(c) after being apprehended by a police officer (see section 22),(d) after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23),(e) on the order of a Magistrate or bail officer (see section 24),(f) after a transfer from another health facility (see section 25),(g) on a written request made to the authorised medical officer by a primary carer, relative or friend of the person (see section 26).(2) A person may be detained, under a provision of this Part, in a health facility that is not a declared mental health facility if it is necessary to do so to provide medical treatment or care to the person for a condition or illness other than a mental illness or other mental condition.(3) In this Act, a reference to taking to and detaining in a mental health facility includes, in relation to a person who is at a mental health facility, but not detained in the mental health facility in accordance with this Act, the detaining of the person in the mental health facility.Note. A person taken to and detained in a mental health facility must be provided with certain information, including a statement of the person’s rights (see section 74).
19 Detention on certificate of medical practitioner or accredited person
(cf 1990 Act, s 21)
(1) A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1.(2) A mental health certificate may be given about a person only if the medical practitioner or accredited person:(a) has personally examined or observed the person’s condition immediately before or shortly before completing the certificate, and(b) is of the opinion that the person is a mentally ill person or a mentally disordered person, and(c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary, and(d) is not the primary carer or a near relative of the person.(3) A mental health certificate may contain a police assistance endorsement that police assistance is required if the person giving the certificate is of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer. The endorsement is to be in the form set out in Part 2 of Schedule 1.(4) A mental health certificate may not be used to admit or detain a person in a facility:(a) in the case of a person certified to be a mentally ill person, more than 5 days after it is given, or(b) in the case of a person certified to be a mentally disordered person, more than one day after it is given.(5) In this section:near relative of a person means a parent, brother, sister, child or spouse of the person and any other person prescribed for the purposes of this definition.
20 Detention on information of ambulance officer
(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.
(1) A police officer to whose notice a police assistance endorsement on a mental health certificate, or a request for assistance by an ambulance officer under this Division, is brought must, if practicable:(a) apprehend and take or assist in taking the person the subject of the certificate or request to a declared mental health facility, or(b) cause or make arrangements for some other police officer to do so.(2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.Note. Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.
22 Detention after apprehension by police
(cf 1990 Act, s 24)
(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that:(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.(2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.
23 Detention after order for medical examination or observation
(cf 1990 Act, s 27)
(1) A Magistrate or authorised officer may, by order, authorise a medical practitioner or accredited person to visit and to personally examine or personally observe a person to ascertain whether a mental health certificate should be issued for the person.(2) An order may be made if the Magistrate or officer is satisfied, by evidence on oath, that:(a) the person may be a mentally ill person or a mentally disordered person, and(b) because of physical inaccessibility, the person could not otherwise be personally examined or personally observed.(3) The order may also authorise any other person (including a police officer) who may be required to assist the medical practitioner or accredited person to accompany the medical practitioner or accredited person.(4) A person authorised to visit a person or accompany another person may enter premises, if need be by force, in order to enable the examination or observation to be carried out.(5) A person who is examined or observed under this section may be detained in accordance with section 19.(6) A person who takes action under an order must, as soon as practicable after taking the action, notify the person who made the order in writing of the action.(7) In this section:authorised officer means an authorised officer within the meaning of the Criminal Procedure Act 1986.
24 Detention on order of Magistrate or bail officer
(cf 1990 Act, s 25)
A person may be taken to and detained in a declared mental health facility in accordance with an order made under section 33 of the Mental Health (Forensic Provisions) Act 1990.
25 Detention after transfer from another health facility
(1) A person may be transferred from a health facility to a declared mental health facility and detained in the mental health facility if a medical officer of the health facility, or the authorised medical officer of the mental health facility, considers the person to be a mentally ill person or a mentally disordered person.(2) Any such person is taken to have been detained in the declared mental health facility under section 19 when the person is transferred to the facility.
26 Detention on request of primary carer, relative or friend
(cf 1990 Act, s 23)
(1) A person may be detained in a declared mental health facility on a written request made to the authorised medical officer by the primary carer or a relative or friend of the person.(2) An authorised medical officer must not detain any such person unless the officer is satisfied that, because of the distance required in order for the person to be examined and the urgency of the circumstances, it is not reasonably practicable to have the person detained on the basis of a mental health certificate.
27 Steps for medical examination requirements for ongoing detention in mental health facility
The following steps must be taken in relation to a person who is detained in a mental health facility under this Division:(a) Step 1 Initial examination by authorised medical officer
An authorised medical officer must examine the person as soon as practicable (but not later than 12 hours) after the person arrives at the facility or after the person is detained after being a voluntary patient.The person must not be detained after the examination unless the officer certifies that, in the officer’s opinion, the person is a mentally ill person or a mentally disordered person.
(b) Step 2 Examination by second medical practitioner
The authorised medical officer must cause the person to be examined by another medical practitioner as soon as possible after giving the certificate in step 1. The second examiner must be a psychiatrist if the authorised medical officer is not a psychiatrist.The second examiner must notify the authorised medical officer in the form prescribed by the regulations if of the opinion that the person is a mentally ill person or a mentally disordered person or if not able to form such an opinion.
(c) Step 3 Examination by third medical practitioner if second examiner does not find person to be mentally ill or mentally disordered
If the second examiner is not of the opinion that the person is a mentally ill person or a mentally disordered person, the authorised medical officer must cause the person to be examined by a medical practitioner who is a psychiatrist, as soon as practicable after being notified of that opinion.The third examiner must notify the authorised medical officer in the form prescribed by the regulations if of the opinion that the person is a mentally ill person or a mentally disordered person.
(d) Step 4 Mental health inquiry or discharge
An authorised medical officer must notify the Tribunal and bring the person before the Tribunal for a mental health inquiry if:(i) the person is found to be a mentally ill person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person or a mentally disordered person on examination in step 2 or step 3, or(ii) the person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person on examination in step 2 or step 3.The person must be brought before the Tribunal as soon as practicable after admission (subject to meeting the requirements set out above).
If the third examiner does not find that the person is a mentally ill person or a mentally disordered person, the person must not be detained after the third examination.
(e) Step 5 Mentally disordered persons
If a person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and is found to be a mentally disordered person on examination in step 2 or step 3, the person may be detained in the mental health facility as a mentally disordered person.
28 Obligations of examining medical practitioners
(1) An authorised medical officer or other medical practitioner who examines a person detained in a mental health facility under this Division may take into account his or her own observations and any other available evidence that he or she considers reliable and relevant in forming an opinion as to whether the person is a mentally ill person or a mentally disordered person.(2) A medical practitioner on whose certificate or request a person has been admitted to a mental health facility must not examine the person under section 27.
28A Tribunal to be informed if detained person is a forensic patient
If an authorised medical officer of a mental health facility becomes aware that a person detained in the mental health facility under this Division is a forensic patient, the officer is, as soon as is reasonably practicable, to notify the Tribunal.
29 Treatment of persons detained in mental health facilities
(cf 1990 Act, s 31)
A person who authorises the administration of any medication to a person detained in a mental health facility under this Division:(a) must have due regard to the possible effects of the administration of the medication, and(b) must prescribe the minimum medication, consistent with proper care, to ensure that the person is not prevented from communicating adequately with any other person who may be engaged to represent the person at a mental health inquiry.
30 Assessable persons may be reclassified as voluntary patients
(cf 1990 Act, s 54)
An authorised medical officer may classify an assessable person as a voluntary patient at any time before a mental health inquiry is held about the person, but only if:(a) the authorised medical officer is of the opinion that the person is likely to benefit from care or treatment as a voluntary patient, and(b) the patient agrees to be so classified or, if the person is a person under guardianship or is under the age of 14 years, the person is admitted in accordance with the procedures under this Act applicable to admitting any such person as a voluntary patient.
31 Limited detention of mentally disordered persons
(cf 1990 Act, s 35)
(1) A person detained as a mentally disordered person under step 5 in section 27 (e) must not be detained in a mental health facility for a continuous period of more than 3 days (not including weekends and public holidays).(2) If an authorised medical officer of a mental health facility is of the opinion that an assessable person has ceased to be a mentally ill person but is a mentally disordered person, the person must not be further detained in the facility for a continuous period of more than 3 days (not including weekends and public holidays).(3) An authorised medical officer must examine a mentally disordered person detained in a mental health facility at least once every 24 hours.(4) The person must not be further detained in the mental health facility if, on any such examination, the authorised medical officer is of the opinion that the person is not a mentally disordered person or a mentally ill person or that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.(5) A person must not be admitted to and detained in a mental health facility on the grounds that the person is a mentally disordered person on more than 3 occasions in any 1 calendar month.
32 Detention on order of Magistrate or bail officer
(cf 1990 Act, ss 36, 37, 37A)
(1) This section applies to a person detained in a mental health facility under this Part who is required not to be detained or further detained in the facility and who was taken to the facility:(a) by a police officer under this Division after being apprehended by a police officer because the officer believed the person to be committing or to have recently committed an offence, or(b) on the order of a Magistrate or an authorised officer under section 33 of the Mental Health (Forensic Provisions) Act 1990.(2) An authorised medical officer must release the person into the custody of any relevant person who is present at the mental health facility to ascertain the results of any examination or examinations of the person.(3) If a relevant person is not so present when the authorised medical officer becomes aware that the person must not be detained or further detained, the authorised medical officer must, as soon as practicable, notify a police officer at the appropriate police station that the person will not be further detained.(4) The authorised medical officer may take any of the following actions in relation to a person (other than a person referred to in subsection (5)), after considering any matter communicated by a police officer as to the intended apprehension of the person by a police officer:(a) detain the person for a period not exceeding one hour pending the person’s apprehension by a police officer,(b) admit the person in accordance with this Act as a voluntary patient,(c) discharge the person, in so far as it may be possible to do so, into the care of the person’s primary carer,(d) discharge the person.(5) If the person is a person ordered to be brought back before a court under section 33 (1) (b) of the Mental Health (Forensic Provisions) Act 1990:(a) it is the duty of the police officer notified by the authorised medical officer to ensure that a police officer attends the mental health facility and apprehends the person as soon as practicable after notification, and(b) the authorised medical officer must detain the person pending the person’s apprehension by a police officer.(6) A police officer may apprehend a person under this section without a warrant.(7) In subsections (2) and (3):relevant person means:
(a) if the detained person was taken to the mental health facility on an order under section 33 of the Mental Health (Forensic Provisions) Act 1990, any person (including a police officer) charged by the order with taking the person from the facility, or(b) in any other case, a police officer.
33 Actions may be delayed because of other illnesses or conditions
Despite any other provision of this Act, an authorised medical officer is not required:(a) to take or complete a step referred to in section 27, or(b) to bring a person before the Tribunal for a mental health inquiry,while the person is suffering from a condition or illness other than a mental illness or other mental condition and is not, in the officer’s opinion, fit to be the subject of the proposed action due to the seriousness of the person’s condition or illness.
Division 3 Continuing detention in mental health facilities
34 Mental health inquiries to be held
(1) The Tribunal must hold an inquiry about an assessable person under step 4 in section 27 (d).Note. Section 27 sets out the events that result in a mental health inquiry. Notice of the inquiry is to be given to the person concerned, and all reasonably practicable steps are to be taken to notify primary carers in accordance with section 76.(2) An authorised medical officer of the mental health facility in which an assessable person is detained:(a) must ensure that, as far as practicable, the person is brought before the Tribunal dressed in street clothes, and(b) must make all necessary arrangements to ensure that all appropriate medical witnesses appear before the Tribunal and other relevant medical evidence concerning the person is placed before the Tribunal at or before the inquiry, and(c) as soon as practicable after notifying the Tribunal under section 27 (d), and at or before the inquiry, must provide the Tribunal with all relevant medical reports of the examinations in step 1 or step 2, as referred to in section 27 (d), and any additional information required by the Tribunal for the purposes of the inquiry.An assessable person, or any other person, may, with the approval of the Tribunal and subject to the regulations (if any), be brought or appear before the Tribunal by way of audio visual link.
The primary carer of an assessable person may, with the approval of the Tribunal, appear at an inquiry.
Note. The Tribunal must be constituted by at least one member who is the President or a Deputy President for the purposes of a mental health inquiry (see section 150 (2A)). Other provisions relating to the Tribunal’s procedures generally, that apply to mental health inquiries and other proceedings, are set out in Part 2 of Chapter 6.
35 Purpose and findings of mental health inquiries
(cf 1990 Act, ss 50–52)
(1) The Tribunal when holding a mental health inquiry is to determine whether or not, on the balance of probabilities, the assessable person is a mentally ill person.(2) For that purpose, the Tribunal is to do the following:(a) consider the reports and recommendations of the authorised medical officer and other medical practitioners who examined the person under section 27 after the person’s detention,(b) consider any other information before the Tribunal,(c) inquire about the administration of any medication to the person and take account of its effect on the person’s ability to communicate,(d) have due regard to any cultural factors relating to the person that may be relevant to the determination,(e) have due regard to any evidence given at the inquiry by an expert witness concerning the person’s cultural background and its relevance to any question of mental illness.(2A) As soon as practicable after the beginning of a mental health inquiry, the Tribunal must ask the assessable person whether the person:(a) has been given a written statement, in the prescribed form, of the person’s legal rights and other entitlements, as required by section 74, and(b) has been informed of the duty imposed under section 76 on the authorised medical officer relating to the giving of the notice specified in that section.(2B) As soon as practicable after the beginning of a mental health inquiry, the Tribunal must ascertain from the authorised medical officer whether the written statement and notice referred to in subsection (2A) have been given or all such things as are reasonably practicable have been done to give that statement or notice, as the case requires.(3) If the Tribunal is not satisfied, on the balance of probabilities, that an assessable person is a mentally ill person, the Tribunal must order that the person be discharged from the mental health facility.(4) The Tribunal may defer the operation of an order for the discharge of a person for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the person to do so.(5) If the Tribunal is satisfied, on the balance of probabilities, that an assessable person is a mentally ill person, the Tribunal may make any of the following orders:(a) an order that the person be discharged into the care of the person’s primary carer,(b) a community treatment order,(c) an order that the person be detained in or admitted to and detained in a specified mental health facility for further observation or treatment, or both, as an involuntary patient, for a specified period of up to 3 months, if the Tribunal is of the opinion that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available or that for any other reason it is not appropriate to make any other order under this subsection.
(1) The Tribunal may, from time to time, adjourn a mental health inquiry for a period not exceeding 14 days.(2) Without limiting subsection (1), the Tribunal may adjourn the inquiry if it is not satisfied:(a) that the assessable person has been informed of the duty imposed under section 76 on the authorised medical officer relating to the giving of the notice specified in that section, or(b) that the notice specified in the section has been given or all such things as are reasonably practicable have been done to give that notice.(3) The Tribunal may adjourn an inquiry under this section only if:(a) the Tribunal is of the opinion that it is in the best interests of the assessable person to do so, and(b) the Tribunal has considered any certificates given under this Act available to the Tribunal.(4) If an inquiry is adjourned, the assessable person is to continue to be detained in the mental health facility unless the person is discharged or allowed to be absent from the facility under another provision of this Act.
37 Reviews of involuntary patients by Tribunal
(1) The Tribunal must review the case of each involuntary patient as follows:(a) at the end of the patient’s initial period of detention as a result of a mental health inquiry,(b) at least once every 3 months for the first 12 months the person is an involuntary patient,(c) at least once every 6 months while the person is an involuntary patient after the first 12 months of detention.(1A) The Tribunal may review the case of an involuntary patient at such other times as it sees fit.(2) An authorised medical officer must cause an involuntary patient to be brought before the Tribunal:(a) as soon as practicable before the end of the initial period of detention, if it appears to the officer that the person should continue to be detained, and(b) at such other times as may be required by the Tribunal for the purposes of any review under this section.(3) The authorised medical officer must ensure that, as far as practicable, a person brought before the Tribunal is dressed in street clothes.(4) Despite subsection (1) (c), the Tribunal may review the case of an involuntary patient at intervals of up to 12 months if it is of the opinion that it is appropriate to do so.
38 Purpose and findings of reviews of involuntary patients
(1) The Tribunal is, on a review of an involuntary patient, to determine whether the patient is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available.(2) For that purpose, the Tribunal is to do the following:(a) consider any information before it,(b) inquire about the administration of any medication to the patient and take account of its effect on the patient’s ability to communicate.(3) If the Tribunal determines that the patient is not a mentally ill person, the patient must be discharged from the mental health facility in which the patient is detained.(4) If the Tribunal determines that the patient is a mentally ill person and that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient, the Tribunal must make an order that the patient continue to be detained as an involuntary patient in a mental health facility for further observation or treatment, or both.(5) In any other case that the Tribunal determines that a patient is a mentally ill person, it must make an order that the patient be discharged from the mental health facility in which the patient is detained and may make a community treatment order.(6) The Tribunal may defer the operation of an order for the discharge of a patient for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.(7) An order made by the Tribunal under this section is to be in the form approved by the President.
39 Medical examination of involuntary patients
(cf 1990 Act, s 61)
(1) An authorised medical officer must medically examine each involuntary patient of the mental health facility, or cause each involuntary patient to be medically examined, to determine whether the patient’s continued detention in the facility is necessary.(2) The medical examinations are to be carried out at intervals of not more than 3 months.
40 Re-classification of involuntary patients as voluntary patients
(cf 1990 Act, s 64)
(1) An involuntary patient may be classified as a voluntary patient of the mental health facility in which the patient is detained:(a) by an authorised medical officer at any time, or(b) by the Tribunal when conducting a review of the patient.(2) A patient may be so classified only if:(a) the authorised medical officer or Tribunal is of the opinion that the patient is likely to benefit from care or treatment as a voluntary patient, and(b) the patient agrees to be so classified or, if the patient is a person under guardianship, the patient is admitted in accordance with the procedures under this Act applicable to admitting such persons as voluntary patients.(3) Without limiting subsection (1), a person who is discharged as an involuntary patient may be admitted as a voluntary patient immediately on discharge.Note. For additional circumstances when a patient or person must be released from a mental health facility, see section 12.
41 Discharge on making of community treatment order
(cf 1990 Act, s 132)
(1) An authorised medical officer must discharge a patient or person who is detained in a mental health facility when a community treatment order is made about the patient or person and any order authorising the patient’s or person’s detention ceases to have effect.(2) This section does not prevent an affected person subject to a community treatment order from being admitted to or detained in a mental health facility.
42 Discharge of involuntary patients on own application
(cf 1990 Act, s 67)
(1) An involuntary patient of a mental health facility or another person detained in a mental health facility may make an application to the authorised medical officer to be discharged.(2) The authorised medical officer may discharge the patient or person.Note. The authorised medical officer may also classify a patient as a voluntary patient (see section 40).
43 Discharge of involuntary patients on application of primary carer
(cf 1990 Act, s 68)
(1) The primary carer of an involuntary patient or another person detained in a mental health facility may, at any time, apply to an authorised medical officer of the mental health facility for the discharge of the patient or person.(2) The authorised medical officer may discharge the patient or person if:(a) the applicant gives the authorised medical officer a written undertaking that the patient or person will be properly taken care of, and(b) the authorised medical officer is satisfied that adequate measures will, so far as is reasonably practicable, be taken to prevent the patient or person from causing harm to himself or herself or others.
43A Tribunal to be informed of discharge of a forensic patient
An authorised medical officer of a mental health facility must, as soon as is reasonably practicable, notify the Tribunal of the discharge of a person detained in the mental health facility whom the officer knows is a forensic patient.
44 Appeals against discharge refusals
(cf 1990 Act, ss 69, 70)
(1) An involuntary patient or person detained at a mental health facility (the applicant) who applies to be discharged, or a person who applies for the discharge of the applicant, or a person appointed by the applicant, may appeal to the Tribunal if:(a) the authorised medical officer refuses the application, or(b) the authorised medical officer fails to determine the application within 3 working days after it is made.(2) An appeal may be made orally or in writing and is to be made in accordance with the regulations.(3) The authorised medical officer must provide the Tribunal with a report about the applicant, including the officer’s reasons for refusing to discharge the applicant or failing to determine the application.(4) For the purpose of determining an appeal, the Tribunal has and may exercise the functions of the authorised medical officer with respect to the discharge application and may make an order accordingly.(5) In addition, the Tribunal may determine that no further right of appeal may be exercised under this section before the date on which the person is next reviewed by the Tribunal under this Act, if it thinks it appropriate to do so, having regard to the following:(a) the interval between the last determination under this Act that the applicant was a mentally ill person and the date of the appeal,(b) the frequency of appeals under this section made by or on behalf of the applicant,(c) the last report about the applicant by the authorised medical officer under this section,(d) any other matter the Tribunal considers relevant.
45 Review and discharge of absent patients
(cf 1990 Act, ss 72, 73)
(1) An authorised medical officer must review the mental health and welfare of a patient or person detained in a mental health facility under this Act who is absent from the mental health facility with permission if the absence is for a continuous period of more than 28 days.(2) The authorised medical officer must discharge the patient or person following the review unless the officer is of the opinion that further detention of the patient or person in the facility is necessary.(3) An authorised medical officer of a mental health facility must discharge a patient or person detained in the facility under this Act who is absent from the mental health facility for a single period exceeding 12 months.
Division 4 Leave of absence from mental health facilities
This Division applies to an involuntary patient or a person who is detained in a mental health facility under this Act.
47 Leave of absence on compassionate grounds, medical grounds or other grounds
(1) An authorised medical officer may permit a person to be absent from a mental health facility for the period, and on the conditions, that the officer thinks fit.(2) Permission may be given on compassionate grounds, on the ground that medical treatment is required or on any other ground the authorised medical officer thinks fit.Note. A person may also be transferred from a mental health facility to another health facility on medical grounds (see section 80).(3) An authorised medical officer may not grant leave of absence unless the officer is satisfied that, as far as is practicable, adequate measures have been taken to prevent the person concerned from causing harm to himself or herself or others.
48 Apprehension of persons not permitted to be absent from mental health facility
(cf 1990 Act, ss 75, 76)
(1) An authorised medical officer of a mental health facility may apprehend a person, or direct a person to be apprehended, if:(a) the person fails to return to the facility on or before the expiry of a permitted period of absence granted under this Part or fails to comply with a condition of the permission, or(b) the person absents himself or herself from the facility otherwise than in accordance with this Act.(2) The person may be apprehended by any of the following persons:(a) an authorised medical officer or any other suitably qualified person employed at the mental health facility,(b) a police officer,(c) a person authorised by the Minister or the authorised medical officer,(d) a person assisting a person referred to in paragraph (a), (b) or (c).(3) A person who is apprehended is to be conveyed to and detained in the mental health facility from which the person absented himself or herself.
(1) An authorised medical officer may request that a police officer apprehend, or assist in apprehending, a person under this Division if the officer is of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.(2) A police officer to whose notice any such request is brought may:(a) apprehend and take or assist in taking the person to the mental health facility from which the person absented himself or herself, or(b) cause or make arrangements for some other police officer to do so.(3) A police officer may enter premises to apprehend a person under this section or section 48, and may apprehend any such person, without a warrant and may exercise any powers conferred under section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.Note. Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.
Part 3 Involuntary treatment in the community
Division 1 Applications for and making of community treatment orders
In this Part:affected person means a person for whom a community treatment order has been applied for or made.
breach notice—see section 58 (3).
breach order—see section 58 (4).
director of community treatment of a mental health facility means a person appointed under section 113 as the director of community treatment of the mental health facility.
psychiatric case manager means a person employed at a declared mental health facility who is appointed under section 114 as the psychiatric case manager of an affected person.
treatment plan—see section 54.
(1) A community treatment order authorising the compulsory treatment in the community of a person may be made by the Tribunal.Note. Section 56 sets out the matters to be included in community treatment orders.(2) The following persons may apply for a community treatment order for the treatment of a person:(a) the authorised medical officer of a mental health facility in which the affected person is detained or is a patient under this Act,(b) a medical practitioner who is familiar with the clinical history of the affected person,(c) any other person prescribed by the regulations.(3) An application may be made about a person who is detained in or a patient in a mental health facility or a person who is not in a mental health facility.(4) An application may be made about a person who is subject to a current community treatment order.(5) A community treatment order may be made in the following circumstances and may replace an existing order:(a) following a mental health inquiry,(b) on a review of a patient by the Tribunal,(c) on an application otherwise being made to the Tribunal.
(1) The applicant for a community treatment order must notify the affected person in writing of the application.(2) The notice of the application is to include a copy of the proposed treatment plan for the affected person.(3) If the affected person is not detained in a mental health facility, the application must be heard not earlier than 14 days after the notice is given.(4) Subsection (3) does not apply to an application for a further community treatment order in respect of an affected person who is the subject of a current community treatment order.
53 Determination of applications for community treatment orders
(1) The Tribunal is, on an application for a community treatment order, to determine whether the affected person is a person who should be subject to the order.(2) For that purpose, the Tribunal is to consider the following:(a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order,(b) if the affected person is subject to an existing community treatment order, a report by the psychiatric case manager of the person as to the efficacy of that order,(c) a report as to the efficacy of any previous community treatment order for the affected person,(d) any other information placed before the Tribunal.(3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that:(a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and(b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and(c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment.(3A) If the affected person has within the last 12 months been a forensic patient or the subject of a community treatment order, the Tribunal is not required to make a determination under subsection (3) (c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted.(4) The Tribunal may not make a community treatment order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person.(5) For the purposes of this section, a person has a previous history of refusing to accept appropriate treatment if the following are satisfied:(a) the affected person has previously refused to accept appropriate treatment,(b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness,(c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission),(d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person.(6) The Tribunal must not specify a period longer than 12 months as the period for which a community treatment order is in force.(7) In determining the duration of a community treatment order, the Tribunal must take into account the estimated time required:(a) to stabilise the condition of the affected person, and(b) to establish, or re-establish, a therapeutic relationship between the person and the person’s psychiatric case manager.
54 Requirements for treatment plans under community treatment orders
A treatment plan for an affected person is to consist of the following:(a) in general terms, an outline of the proposed treatment, counselling, management, rehabilitation or other services to be provided to implement the community treatment order,(b) in specific terms, the method by which, the frequency with which, and the place at which, the services would be provided for that purpose.
55 Community treatment order may be made in absence of affected person
The Tribunal may make a community treatment order in the absence of the affected person, if the person has been given notice of the application under this Part.
56 Form and duration of community treatment orders
(1) A community treatment order is to:(a) nominate the declared mental health facility that is to implement the treatment plan for the affected person, and(b) require the affected person to be present, at the reasonable times and places specified in the order to receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan.(2) A community treatment order ceases to have effect at the end of the period specified in the order or, if no period is specified, 12 months after the order is made.Note. Section 53 (6) specifies that the maximum period for an order is to be 12 months.(3) A community treatment order has no effect while an affected person is detained in a mental health facility (otherwise than under this Part), or is a voluntary patient.(4) The fact that an affected person is the subject of proceedings before the Tribunal does not, unless the Tribunal otherwise orders, affect the operation or duration of the community treatment order.(5) The time for which a community treatment order is in force does not cease to run during any period in which this section provides that it has no effect.Note. The Tribunal may vary or revoke a community treatment order in accordance with section 65.
Division 2 Operation of community treatment orders
57 Duties and functions of affected person and mental health facility
(cf 1990 Act, ss 145, 146)
(1) The affected person must comply with the community treatment order.(2) The director of community treatment of the declared mental health facility implementing a treatment plan under a community treatment order may take all reasonable steps to have medication administered, and services provided, in accordance with the order.(3) Medication may be administered to an affected person for the purposes of a community treatment order without the person’s consent if it is administered without the use of more force than would be required if the person had consented to its administration.(4) The director of community treatment of a declared mental health facility implementing a treatment plan under a community treatment order must provide to the affected person particulars of the kind and dosages of medication that are being administered, or have recently been administered, to the person, if requested to do so by:(a) the affected person, or(b) the primary carer of the affected person, or(c) if the affected person consents, another person who would be entitled to apply for a community treatment order in relation to the person.(5) A person implementing a treatment plan under a community treatment order may enter the land (but not the dwelling) on which an affected person’s residence is situated without the person’s consent for the purpose of implementing the community treatment order.
58 Breach of community treatment order
(1) The director of community treatment of a declared mental health facility implementing a community treatment order must take the steps set out in this section if the affected person in any way refuses or fails to comply with the community treatment order and the director is of the opinion that:(a) the mental health facility has taken all reasonable steps to implement the order, and(b) there is a significant risk of deterioration in the mental or physical condition of the affected person.(2) The director must:(a) make a written record of the opinions, the facts on which they are based and the reasons for forming them, and(b) cause the affected person to be informed that any further refusal to comply with the order will result in the person being taken to the declared mental health facility or another appropriate mental health facility and treated there.(3) On a further refusal or failure by the affected person to comply with the community treatment order, the director may cause the person to be given a written notice (a breach notice):(a) requiring the person to accompany a member of staff of the NSW Health Service employed at the declared mental health facility for treatment in accordance with the order or to a specified mental health facility, and(b) warning the person that the assistance of a police officer may be obtained in order to ensure compliance with the order.(4) On the refusal or failure by the affected person to comply with a breach notice, the director may, in writing, make an order (a breach order) that the affected person be taken to a specified declared mental health facility.(5) For the purposes of subsection (3), the director causes a person to be given a breach notice if the director ensures that:(a) the notice is handed directly to the person, or(b) if it is not reasonably practicable to hand the notice directly to the person, the notice is posted to the last known address of the person.
(1) A police officer to whose notice a breach order is brought must, if practicable:(a) apprehend and take or assist in taking the person the subject of the order to the mental health facility, or(b) cause or make arrangements for some other police officer to do so.(2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.Note. Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.
60 Procedures at facility after breach notice or breach order
(1) An affected person who is at a mental health facility as a result of the giving of a breach notice or a breach order:(a) may be given treatment in accordance with the community treatment order, and(b) may be assessed by a medical practitioner for involuntary admission to a mental health facility.(2) A person who is at a mental health facility as a result of a breach notice or breach order may be released after treatment if treatment is accepted or may be dealt with at the mental health facility or taken to another declared mental health facility if treatment is refused.
61 Review of affected person at mental health facility after breach order
(cf 1990 Act, ss 141, 142)
(1) This section applies to an affected person who is taken to or is at a declared mental health facility after refusing treatment at a mental health facility consequent on a breach order.(2) An authorised medical officer must, not later than 12 hours after the person is taken to the declared mental health facility, review the affected person’s mental condition and determine whether the person is a mentally ill person or a mentally disordered person.(3) The authorised medical officer may cause the person to be given treatment in accordance with the community treatment order.(4) If the authorised medical officer determines that the affected person is a mentally ill person or a mentally disordered person for whom no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available, the person is to be detained in the declared mental health facility for further observation or treatment, or both.(5) The affected person may be detained until one of the following events occurs:(a) in the case of a mentally ill person, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act,(b) in the case of a mentally disordered person, the maximum period for which a person may be held as such a person under Part 2 ends, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act.
61A Medical examination of detained affected persons
(1) An authorised medical officer must medically examine each affected person detained in a mental health facility to determine whether the person’s continued detention in the facility is necessary.(2) The medical examinations are to be carried out at intervals of not more than 3 months.
62 Discharge and detention of affected persons
(1) An affected person detained in a declared mental health facility under this Division must be discharged from the facility:(a) if the authorised medical officer determines that the person is not a mentally ill person or a mentally disordered person or is of the opinion that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person, or(b) if the authorised medical officer decides at any time that it is appropriate to do so.(2) An authorised medical officer may do all necessary things to cause a person to be detained in a mental health facility under Part 2 at the end of the term of a community treatment order if the officer considers the person to be a mentally ill person.(3) Any such person is taken to be detained in the mental health facility under section 19 when the authorised medical officer takes action to detain the person.
63 Review by Tribunal of detained affected persons
(cf 1990 Act, s 143A)
(1) An authorised medical officer must cause a person detained in a declared mental health facility under this Division to be brought before the Tribunal not later than 3 months after the person is detained, and at least every 3 months while the person is detained.(2) The authorised medical officer must ensure that, as far as practicable, a person brought before the Tribunal is dressed in street clothes.(3) This section does not apply if the affected person’s community treatment order will end less than 3 months after the person is detained under this Division.
64 Purpose and findings of reviews
(cf 1990 Act, s 143A)
(1) The Tribunal is, on a review of an affected person, to determine whether the person is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available.(2) For that purpose, the Tribunal is to do the following:(a) consider any information before it,(b) inquire about the administration of any medication to the person and take account of its effect on the person’s ability to communicate.(3) If the Tribunal determines that the affected person is a mentally ill person or a mentally disordered person for whom no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available, the Tribunal must determine whether the person should be detained in the declared mental health facility until the end of the community treatment order or should be detained in the facility as an involuntary patient.(4) If the Tribunal does not determine that the person is a mentally ill person or is of the opinion that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available:(a) it must make an order that the person be discharged from the declared mental health facility in which the person is detained, and(b) it may make any community treatment order that it could make on a review of an involuntary patient.(5) The Tribunal may defer the operation of an order for the discharge of an affected person for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the affected person to do so.(6) An order made by the Tribunal under this section is to be in the form approved by the President.
Division 3 Revocation, variation and review of community treatment orders
65 Variation or revocation of orders by Tribunal
(cf 1990 Act, s 148)
(1) The Tribunal may vary or revoke a community treatment order, on application being made under this section or at any time on its own motion.(2) An application may be made by any of the following:(a) the affected person,(b) the psychiatric case manager of the affected person,(c) any person who could have applied for the order.(3) An application may be made only if:(a) there has been a substantial or material change in the circumstances surrounding the making of the order, or(b) relevant information that was not available when the order was made has become available.(4) An order may be varied only if the order, as varied, could be made in relation to the affected person.(5) The regulations may make provision for or with respect to applications under this section and the orders that may be made by the Tribunal.
66 Revocation by director of community treatment
(cf 1990 Act, s 149)
The director of community treatment of a declared mental health facility implementing a treatment plan under a community treatment order may revoke a community treatment order if of the opinion that the affected person is not likely to benefit from a continuation of the order.
(cf 1990 Act, s 151)
(1) The affected person under a community treatment order made by the Tribunal may at any time appeal to the Court:(a) if the term of the order exceeds 6 months or no term is specified in the order, against the duration of the order, or(b) on any question of law or fact arising from the order or its making.(2) The affected person under a community treatment order made by a Magistrate may at any time appeal to the Tribunal:(a) if the term of the order exceeds 6 months or no term is specified in the order, against the duration of the order, or(b) on any question of law or fact arising from the order or its making.(3) The regulations may make provision for or with respect to appeals to the Tribunal under this section and the orders that may be made by the Tribunal in respect of any such appeal.