Part 1 Administrative objectives and functions
105 Objectives of New South Wales public health system
(cf 1990 Act, s 6)
The objectives of the New South Wales public health system under this Act in relation to mental health services are to establish, develop, promote, assist and encourage mental health services that:(a) ensure that provision is made for the care, treatment, control and rehabilitation of persons who are mentally ill or mentally disordered, and(b) promote the establishment of community mental health services for the purpose of enabling the treatment in the community wherever possible of persons who are mentally ill or suffering from the effects of mental illness or who are mentally disordered, and(c) develop, as far as practicable, standards and conditions of care and treatment for persons who are mentally ill or mentally disordered that are in all possible respects at least as beneficial as those provided for persons suffering from other forms of illness, and(d) take into account the various religious, cultural and language needs of those persons, and(e) are comprehensive and accessible, and(f) permit appropriate intervention at an early stage of mental illness, and(g) assist patients to live in the community through the provision of direct support and provide for liaison with carers and providers of community services.
106 Functions of Director-General
(cf 1990 Act, s 7)
The Director-General has the following functions under this Act:(a) to promote research into mental illness,(b) to assist in the training and education of persons responsible for the care and treatment of persons who are mentally ill or mentally disordered,(c) to make recommendations and reports to the Minister about matters affecting the accommodation, maintenance, care, treatment, control and welfare of persons who are mentally ill or mentally disordered,(d) to make recommendations to the Minister about this Act or the regulations,(e) to promote informed public opinion on matters relating to public health by publishing reports and information concerning mental health,(f) to promote public understanding of involvement in measures for the prevention, treatment and care of mental illness and the care, treatment and control of persons who are mentally ill or mentally disordered,(g) to assist in, and promote, co-operation between different agencies involved in the provision of services for people who are mentally ill or mentally disordered and their carers,(h) any other functions conferred or imposed on the Director-General by or under this or any other Act.
(1) The Director-General may delegate the exercise of any function of the Director-General under this Act or the Mental Health (Forensic Provisions) Act 1990 (other than this power of delegation) to:(a) any member of staff of the Department of Health, or(b) any member of staff of the NSW Health Service, or(c) any person, or any class of persons, authorised for the purposes of this section by the regulations.(2) A delegate may sub-delegate to a person referred to in subsection (1) (a) or (b) if the delegate is authorised in writing to do so by the Director-General.
(cf 1990 Act, s 301)
(1) The Director-General must, as soon as practicable after 30 June in each year, cause to be prepared and forwarded to the Minister a report as to the matters relating to mental health services that are prescribed by the regulations for the 12 months preceding that date.(2) The Minister is required to lay the report, or cause it to be laid, before each House of Parliament as soon as practicable after the receipt by the Minister of the report.(3) A report made under the Annual Reports (Departments) Act 1985 in respect of the Department of Health may include any report required to be made under this section.
Part 2 Mental health facilities
Division 1 Declared mental health facilities
109 Establishment of declared mental health facilities
(cf 1990 Act, s 208)
(1) The Director-General, by order published in the Gazette:(a) may declare any premises to which this section applies and that are specified or described in the order to be a declared mental health facility, and(b) may, in the same or another order so published, name the premises so specified or described, and(c) may, in the same or another order so published, limit the provisions of this Act or the purposes under this Act for which the facility is a declared mental health facility.(2) Without limiting subsection (1), an order may do any of the following:(a) designate a declared mental health facility as a facility of a specified class,(b) designate the purposes for which a mental health facility of a specified class may be used,(c) impose restrictions on the use of a mental health facility for specified purposes,(d) impose any other conditions in relation to the operation of the facility as a mental health facility.(3) This section applies to the following premises:(a) premises that belong to or are under the control of the Crown or a person acting on behalf of the Crown,(b) premises that are under the control of a public health organisation within the meaning of the Health Services Act 1997,(c) premises that the owner or person who has control of the premises has agreed, by an instrument in writing given to the Director-General, to being premises to which this section applies.
110 Declared mental health facilities that are private mental health facilities
A declared mental health facility that is also a private mental health facility ceases to be a declared mental health facility if the licence for the facility is cancelled under Division 2.
111 Appointment of medical superintendents
(cf 1990 Act, s 209)
(1) The Director-General must, by instrument in writing, appoint a medical practitioner as medical superintendent of a declared mental health facility (other than a private mental health facility).(2) The Director-General may (by the same or different instruments) appoint a medical practitioner as the medical superintendent of more than one declared mental health facility.
112 Appointment of deputy medical superintendents
(cf 1990 Act, s 210)
(1) The Director-General may, by instrument in writing, appoint a medical practitioner as deputy medical superintendent of a declared mental health facility.(2) The deputy medical superintendent of a declared mental health facility has the functions of the medical superintendent of the facility during the absence, for any reason, of the medical superintendent or during a vacancy in the office of medical superintendent.(3) The Director-General may (by the same or different instruments) appoint a medical practitioner as the deputy medical superintendent of more than one declared mental health facility.
113 Directors and deputy directors of community treatment
(cf 1990 Act, ss 115, 150)
(1) The Director-General must appoint the holder of a specified office as the director of community treatment of a mental health facility that implements treatment plans under community treatment orders and may appoint the holder of a specified office as the deputy director of community treatment of the facility.(2) An office may not be specified unless, in the opinion of the Director-General, it qualifies the holder to exercise the functions conferred or imposed on a director or deputy director by or under this Act.(3) A person appointed as a director of community treatment must be a health professional who is appropriately qualified for the position by education, training and experience.(4) The director of community treatment of a mental health facility may delegate a function conferred or imposed by this Act on the director (other than this power of delegation) to the deputy director.
(cf 1990 Act, s 116)
(1) The director of community treatment of a declared mental health facility may appoint a person employed at the facility as the psychiatric case manager of an affected person under a community treatment order.(2) A person may not be appointed as a psychiatric case manager unless, in the opinion of the director, the person is qualified to supervise the treatment, and monitor the progress, of the affected person under a community treatment order.(3) The same person may be the director or deputy director of community treatment of a declared mental health facility and the psychiatric case manager of an affected person.
Division 2 Private mental health facilities
(cf 1990 Act, s 211)
(1) A person may apply to the Director-General for a licence to keep premises as a private mental health facility for the admission, care and treatment of patients.(2) An application must be:(a) in a form approved by the Director-General, and(b) accompanied by a plan of the premises in respect of which the licence is sought and the prescribed fee.
116 Grant or refusal of licence
(cf 1990 Act, s 212)
(1) The Director-General may grant an application for a licence under this Division or may refuse to grant the application.(2) If the Director-General grants the application, the Director-General:(a) must specify the maximum number of patients who may be kept or treated at the private mental health facility, and(b) must specify any other terms and conditions to which the licence is subject, as the Director-General thinks fit, and(c) must issue the applicant with a licence in a form approved by the Director-General.
(cf 1990 Act, s 213)
A licence remains in force until it is cancelled in accordance with this Division.
118 Annual statement and licence fee
(cf 1990 Act, s 214)
A licensee must, on or before 31 December in each year:(a) forward to the Director-General a statement in a form approved by the Director-General relating to the conduct of the premises to which the licence relates and the admission of patients to those premises and the care and treatment of patients on those premises, and(b) pay to the Director-General the prescribed annual licence fee.
(cf 1990 Act, s 215)
If the Director-General is satisfied that a licence has been lost, destroyed or damaged, the Director-General may, on payment of the prescribed fee, issue a duplicate licence to the licensee.
120 Cancellation of licences—generally
(cf 1990 Act, s 216)
The Director-General may cancel a licence:(a) if the annual licence fee payable in respect of the licence has not been paid by the due date, or(b) if the licensee requests the Director-General, in writing, to cancel the licence, or(c) if the premises to which the licence relates have ceased to be kept as a mental health facility for the admission, care and treatment of patients, or(d) if the premises to which the licence relates cease to be the subject of a licence under the Private Hospitals and Day Procedure Centres Act 1988.
121 Cancellation of licences—failure to show cause
(cf 1990 Act, s 217)
(1) The Director-General may, by notice in writing served on the holder of a licence, require the holder to show cause, by a date and time specified in the notice (being a date not less than 1 month after the date of service of the notice), why the licence should not be cancelled.(2) The Director-General may cancel the licence if, by the date and time referred to in the notice, the holder of the licence has not shown sufficient cause why the licence should not be cancelled.
(cf 1990 Act, s 218)
(1) The holder of a licence may, at any time, apply to the Director-General for the variation of any term or condition to which the licence is subject.(2) The Director-General may, on an application being made:(a) vary any term or condition to which a licence is subject, or(b) refuse to grant the application.
123 Provision of medical services in private mental health facilities
(cf 1990 Act, s 219)
The holder of a licence must make such arrangements as may be approved by the Director-General for the provision of medical services to patients in the private mental health facility.
(cf 1990 Act, ss 220, 221)
(1) The holder of a licence must appoint a medical practitioner approved by the Director-General as the medical superintendent of the private mental health facility.(2) The medical superintendent of a private mental health facility must cause to be kept such records and furnish to the Director-General such particulars as are approved by the Minister in respect of the admission, treatment, discharge, removal, absence with or without leave or death of each patient admitted to the facility.
125 Deputy medical superintendents
(cf 1990 Act, ss 222, 223)
(1) The holder of a licence may appoint a medical practitioner as the deputy medical superintendent of the private mental health facility.(2) The appointment of the medical practitioner must be approved by the Director-General before it takes effect.(3) The deputy medical superintendent of a private mental health facility has the functions of the medical superintendent of the facility during the absence, for any reason, of the medical superintendent or during a vacancy in the office of medical superintendent.
126 Unlicensed private mental health facilities
(cf 1990 Act, s 224)
A person keeping premises is guilty of an offence against this Act if:(a) the premises were the subject of a licence that has ceased to be in force, and(b) at any time after 2 months after the licence ceases to be in force, there is in or on the premises a person who was a patient immediately before the licence ceased to be in force and who has not ceased to be a patient.Maximum penalty: 50 penalty units.
127 Certain private hospitals to be licensed
(cf 1990 Act, s 225)
A person must not conduct a private hospital within the meaning of the Private Hospitals and Day Procedure Centres Act 1988 at which a person is being treated primarily for a mental illness, unless the person who conducts the hospital is the holder of a licence granted under this Division.Maximum penalty: 50 penalty units.
Part 3 Official visitors and accredited persons
128 Principal official visitor
(cf 1990 Act, ss 226, 227)
(1) The Minister may, by instrument in writing, appoint a person to be the Principal official visitor.(2) The Principal official visitor has the following functions:(a) to advise and assist official visitors in the exercise of the functions conferred or imposed on them by or under this Act,(b) to oversee the official visitor program conducted under this Act,(c) to report to the Minister, as directed by the Minister, about the exercise of the functions of the Principal official visitor and official visitors,(d) to refer matters raising any significant public mental health issues or patient safety or care or treatment issues to the Minister or any other appropriate person or body,(e) to act as an advocate to the Minister for consumers of mental health care to promote the proper resolution of issues arising in the mental health system,(f) any other function conferred on the Principal official visitor by or under this or any other Act.
(cf 1990 Act, s 228)
(1) The Minister must, by instrument in writing, appoint official visitors.(2) A person may be appointed as an official visitor if the person has any of the following qualifications:(a) the person is a medical practitioner,(b) the person is a registered psychologist,(c) the person has any other qualifications prescribed by the regulations,(d) the person is otherwise a suitably qualified or interested person.(3) An official visitor has the following functions:(a) to refer matters raising any significant public mental health issues or patient safety or care or treatment issues to the Principal official visitor or any other appropriate person or body,(b) to act as an advocate for patients to promote the proper resolution of issues arising in the mental health system, including issues raised by the primary carer of a patient or person detained under this Act,(c) to inspect mental health facilities as directed by the Principal official visitor and in accordance with this Part,(d) any other function conferred on official visitors by or under this or any other Act.
130 General provisions relating to the Principal official visitor and official visitors
(cf 1990 Act, s 229)
Schedule 4 has effect with respect to the Principal official visitor and official visitors.
131 Inspections of mental health facilities by official visitors
(cf 1990 Act, s 230)
(1) The Principal official visitor must ensure that 2 or more official visitors visit each mental health facility in accordance with the regulations.(2) For the purposes of any such visit, at least one of the official visitors is to be a person referred to in section 129 (2) (a), (b) or (c) and at least one other of the official visitors is to be a person referred to in section 129 (2) (d).(3) On a visit to a mental health facility, the official visitors must:(a) so far as practicable, inspect every part of the facility at least once, and(b) so far as practicable, make any necessary inquiries about the care, treatment and control of voluntary patients and the patients or persons detained in the facility or who are subject to community treatment orders and being treated by the facility, and(c) examine and sign the registers, books, records and other documents produced to them in accordance with this Part, and(d) enter the fact of their visit in the official visitors book at the facility, together with any observations they think it appropriate to make.(4) The official visitors must report to the Principal official visitor about each visit in accordance with any arrangements made by the Principal official visitor.(5) A visit may be made with or without previous notice and at any time of the day or night, and be of such length, as the official visitors think appropriate.(6) A visit may be made at the request of the primary carer of a patient or person treated at or by the mental health facility.
132 Obligations to facilitate exercise of functions by official visitors
(cf 1990 Act, s 231)
(1) The medical superintendent of a declared mental health facility or the administrator of a private mental health facility must do the following for the purposes of any visit by official visitors:(a) allow the official visitors to have access to and to inspect every part of the facility,(b) permit the official visitors to see and to interview each patient or person detained in the facility or each affected person under a community treatment order being treated by the facility,(c) give full and true answers to the best of their knowledge to all questions that the official visitors ask in relation to the facility, the patients and other persons or affected persons,(d) produce to the official visitors any registers, books, records, orders, certificates, returns and other documents relating to the admission, care, treatment and control of the patients and other persons and the discharge of persons required by the official visitors.(2) The administrator of a private mental health facility must, at the end of each month, report in writing to the medical superintendent as to the functions exercised under this section by the administrator during that month.
(cf 1990 Act, s 233)
Nothing in this Part prevents an official visitor from reporting to the Minister with respect to any matter arising from or relating to the exercise by the official visitor of the official visitor’s functions.
134 Request by patient or other person to see official visitor
(cf 1990 Act, s 234)
(1) A patient or person detained in a mental health facility or an affected person under a community treatment order who is being treated by a mental health facility, or the primary carer of any such person, may notify the medical superintendent or director of community treatment of the facility, orally or in writing, that the patient or person or carer desires to see an official visitor.(2) The medical superintendent or director must inform an official visitor of the patient’s or person’s or primary carer’s desire to see an official visitor not later than 2 days after receiving the notification.
135 Official visitors not personally liable
(cf 1990 Act, s 234A)
A matter or thing done or omitted by an official visitor does not, if the matter or thing was done or omitted in good faith for the purpose of executing this Act or the regulations, subject the official visitor personally to any action, liability, claim or demand.
(cf 1990 Act, s 287A)
(1) The Director-General may appoint a person as an accredited person for the purposes of this Act.(2) The Director-General may appoint the holder of an office as an accredited person and may impose conditions on the exercise by a person or the holder of an office of the functions of an accredited person.
137 Inspection of mental health facilities
(cf 1990 Act, s 237)
(1) The Director-General may inquire into the administration, management and services of a mental health facility and for that purpose may cause any mental health facility to be visited and inspected from time to time by officers authorised by the Director-General.(2) A visit or inspection may be carried out by an authorised officer appointed under section 124 of the Health Services Act 1997, if the officer’s certificate of authority is expressed to extend to such visits or inspections.(3) On an inspection, an authorised officer:(a) may, at any time, make any inspections, investigations and inquiries with respect to the care, treatment or control of patients or persons detained in a facility or with respect to the management of a facility the authorised officer considers necessary, and(b) must make any such inspections, investigations and inquiries that are directed by the Director-General.(4) An inspection may be made with or without previous notice and at any time of the day or night, and be of such length, as the authorised officer thinks appropriate.
138 Powers of authorised officer to require information, evidence, production of records
(cf 1990 Act, s 238)
(1) An authorised officer inspecting a mental health facility under this Part may, by notice in writing, require a person to do any one or more of the following:(a) to furnish to the authorised officer the information required by the authorised officer concerning any of the matters with respect to which an authorised officer is, by or under this Part, authorised to make inspections, investigations and inquiries,(b) to attend and give evidence before the authorised officer concerning any such matters,(c) to produce all books, documents or other records in the person’s custody or under the person’s control concerning any such matters.(2) An authorised officer may require evidence to be given on oath, and either orally or in writing, and for that purpose the authorised officer may administer an oath.(3) A person must not, without reasonable excuse, refuse or fail to comply with a requirement made under this section.Maximum penalty: 50 penalty units.
139 Protection from incrimination
(1) A person is not excused from a requirement under this Part to make a statement, to give or furnish information, to answer a question or to produce a document on the ground that the statement, information, answer or document might incriminate the person or make the person liable to a penalty.(2) However, any statement made or any information or answer given or furnished by a natural person in compliance with a requirement under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Part) if:(a) the person objected at the time to doing so on the ground that it might incriminate the person, or(b) the person was not warned on that occasion that the person may object to making the statement or giving or furnishing the information or answer on the ground that it might incriminate the person.(3) Any document produced by a person in compliance with a requirement under this Part is not inadmissible in evidence against the person in criminal proceedings on the ground that the document might incriminate the person.(4) Further information obtained as a result of a document produced, a statement made or information or answer given or furnished in compliance with a requirement under this Part is not inadmissible on the ground:(a) that the document, statement, information or answer had to be produced, made, given or furnished, or(b) that the document, statement, information or answer might incriminate the person.