Part 1Part 1 Treatment for mental illness
152 Psychosurgery Review Board
(1) There is constituted by this Act a corporation with the corporate name of the Psychosurgery Review Board.(2) Schedule 4 has effect with respect to the constitution, membership and meetings of the Board.
153 Psychosurgery on patients to be performed only with consent of Board
A person must not perform psychosurgery on a patient, except in accordance with a consent of the Board.Maximum penalty: 50 penalty units.
154 Consent of patient required
Except as otherwise provided by this Division, a person must not perform psychosurgery on a patient who has not given informed consent to the performance of psychosurgery on him or her.Maximum penalty: 50 penalty units.
155 Requirements for obtaining informed consent
(1) Before the consent of a patient is obtained to the performance on the patient of psychosurgery:(a) a fair explanation must be made to the patient of the techniques or procedures to be followed, including an identification and explanation of any technique or procedure about which there is not sufficient data to recommend it as a recognised treatment or to reliably predict the outcome of its performance, and(b) a full description must be given, without exaggeration or concealment, to the patient of the possible attendant discomforts and risks, if any, and(c) a full description must be given to the patient of the benefits, if any, to be expected, and(d) a full disclosure must be made, without exaggeration or concealment, to the patient of appropriate alternative treatments, if any, that would be advantageous for the patient, and(e) an offer must be made to the patient to answer any inquiries concerning the procedures or any part of them, and(f) notice must be given to the patient that the patient is free to refuse or to withdraw his or her consent and to discontinue the procedures or any of them at any time, and(g) a full disclosure must be made to the patient of any financial relationship between the person by whom consent for psychosurgery is sought or the medical practitioner who proposes to perform the psychosurgery, or both, and the hospital or institution in which it is proposed to perform the psychosurgery, and(h) notice must be given to the patient that the patient has the right to legal advice and representation at any time during considerations relating to the performance of psychosurgery on the patient, and(i) any question relating to the techniques or procedures to be followed that is asked by the patient must have been answered and the answers must appear to have been understood by the patient.(2) The regulations are to prescribe forms to be used for the purpose of setting out in writing the matters required by subsection (1) to be explained, described, disclosed, offered or notified and an oral explanation of the matters dealt with in the forms must be given to the person concerned in a language with which the person is familiar.(3) A patient is, for the purposes of this Division, to be taken to have given informed consent to the performance on the patient of psychosurgery if the person has given a free, voluntary and written consent after this section has been complied with.
156 Persons presumed incapable of giving informed consent
(1) The following classes of persons are conclusively presumed to be incapable of giving informed consent to the performance on them of psychosurgery:(a) persons under the age of 18 years,(b) persons convicted of any crime and under sentence in respect of the conviction, whether in custody or not and whether the sentence has been suspended or not,(c) persons awaiting trial on a criminal charge, whether in custody or not,(d) persons released on licence after serving some portion of a sentence in respect of a conviction for crime,(e) persons convicted of any crime, who are on probation or parole,(f) persons convicted of any crime, who have escaped from lawful custody,(g) persons released on recognizance in respect of a criminal charge, whether or not they have been found guilty in respect of that charge, during the period of that recognizance,(h) persons under arrest in respect of a criminal charge,(i) temporary patients, continued treatment patients or forensic patients.(2) This section does not bind the Court in making a finding under section 175.
157 Application for permission to perform psychosurgery
(1) A person who proposes the performance of psychosurgery on a patient must apply, in writing, to the Board for its consent to the performance of psychosurgery on the patient.(2) An application must specify:(a) the applicant’s name and address, and(b) the name and address of the patient, and(c) the name and address of the patient’s nearest relative, if any, and(d) whether, in the applicant’s opinion, the patient is capable of giving informed consent to the psychosurgery, and(e) whether, in the applicant’s opinion, the patient has given informed consent to the psychosurgery or whether the applicant is in doubt that the patient has given that consent, and(f) the exact nature of the psychosurgery proposed to be performed, and(g) the clinical indications for the psychosurgery, and(h) the name or names of the person or persons proposing to perform the psychosurgery, and(i) the name of the hospital or institution in which it is proposed to perform the psychosurgery, and(j) such other particulars as may be prescribed.
158 Procedure for convening hearing of application
(1) The President of the Board must, within 10 days after receiving an application for consent to perform psychosurgery, convene a meeting of the Board for the purpose of hearing and determining the application.(2) The hearing of an application is to commence within 31 days after the date the application is received.(3) The President of the Board must cause to be given to the applicant, the patient and the patient’s nearest relative, if any, not less than 5 days’ notice, in writing, of the hearing.
159 Attendance and representation at hearing
At the hearing before the Board of an application for consent to perform psychosurgery:(a) the patient is, unless the Board otherwise approves, to attend and is entitled to be heard, and(b) the applicant and the patient’s nearest relative, if any, are entitled to attend and to be heard, and(c) a personal friend, nominated by the patient, is entitled to attend, and(d) the patient may be represented by an Australian legal practitioner.
The hearing of an application to the Board for consent to perform psychosurgery is to be open to the public unless the patient or any representative of the patient objects and the Board upholds the objection.
On the hearing of an application to the Board for consent to perform psychosurgery, the Board may make such inquiries and conduct such examinations with respect to the application as it thinks fit.
(1) The name of a person who is the subject of an application to the Board for consent to perform psychosurgery may not, except with the approval of the Board or the consent of the person or any representative of the person, be published or broadcast.(2) A report (other than an official report) of any such hearing may not include information which identifies or may lead to the identification of any person whose name is prohibited by this section from being published or broadcast.(3) A person must not:(a) publish or broadcast the name of a person whose name is prohibited by this section from being published or broadcast, or(b) publish or broadcast a report which contravenes this section.Maximum penalty: 50 penalty units.
163 Assistance by interpreters
A person the subject of an application to the Board for consent to perform psychosurgery who is unable to communicate adequately in English but who is able to communicate adequately in another language is entitled to be assisted, when appearing before the Board, by a competent interpreter.
164 Inspection etc of medical records
(1) A person the subject of an application to the Board for consent to perform psychosurgery is, unless the Board otherwise determines, entitled to inspect or otherwise have access to any medical records relating to the person in the possession of any other person.(2) A representative of such a person at the hearing of the application is entitled, at any time before or during the hearing, to inspect or otherwise have access to any medical records relating to the person in the possession of any other person.(3) Subject to any order or direction of the Board, in relation to an inspection under subsection (2) of, or other access under that subsection to, any medical record relating to a person, if a medical practitioner warns the representative of the person that it may be harmful to communicate to the person, or any other person, specified information contained in those medical records:(a) the representative is to have full and proper regard to that warning, and(b) the representative is not obliged to disclose to the person any information obtained by virtue of the inspection or other access.(4) An order or direction of the Board under this section has effect according to its tenor.
The President or Deputy President of the Board may administer an oath to any person giving evidence in a hearing before the Board.
(1) The Board may, of its own motion or on the application of a person who has made an application to the Board for consent to perform psychosurgery, issue a summons in the prescribed form requiring the person to whom the summons is addressed to do either or both of the following things:(a) to attend as a witness at the hearing of the application,(b) to attend at the hearing and to produce any documents in the possession or under the control of the person relating to the hearing and specified in the summons.(2) The regulations may make provision for or with respect to authorising compliance with a summons to produce any documents by the production of the documents at a place specified in the summons at any time before the hearing at which the documents are required to be produced.(3) A person to whom a summons is addressed is entitled to receive:(a) if the summons was issued by the Board of its own motion, from the Board, or(b) if the summons was issued on the application of a person whose application is being heard by the Board, from the person,his or her reasonable costs, including any loss of earnings, incurred by the person in obeying the summons, calculated in accordance with the scales relating to summonses issued out of the District Court.(4) A person:(a) who is served with a summons addressed to the person under this section, and(b) to whom, at the time of service, is tendered an amount that is sufficient to cover the person’s travelling and other out-of-pocket expenses in attending the hearing specified in the summons and producing anything required by the summons to be produced,must not, without cause, fail or refuse to obey the summons.Maximum penalty: 50 penalty units.
(1) Proceedings before the Board in a hearing are to be recorded but any such record which is made by means of shorthand, stenotype or sound-recording apparatus is not to be transcribed unless:(a) the Board, on the application of the person who has made, or the patient who is the subject of, an application to the Board, is of the opinion that sufficient cause is shown to warrant the transcription of the record relating to the matter, or(b) the President or Deputy President of the Board directs that the record be transcribed, or(c) the transcription of the record is otherwise required by law.(2) Any transcription so made is, except as to such part, if any, of the transcription as is specified by the Board, to be supplied to a person appearing before the Board on payment of the prescribed fee.
(1) Every decision of the Board in respect of any application being heard by it is to be recorded in the form of an instrument in writing signed by the President or Deputy President of the Board and is to include the reasons for the decision of each member with respect to the matter.(2) Nothing in this section prevents the Board from giving a decision in respect of any application being heard by it orally and any such oral decision is to be recorded in accordance with subsection (1).(3) A copy of any written instrument recording a decision of the Board with respect to an application is to be supplied by the Board to the applicant or the patient the subject of the application.
169 Circumstances in which Board may consent to psychosurgery
The Board may consent to an application to perform psychosurgery on a patient if, after hearing the application and after making such inquiries and conducting such examinations with respect to the application as it thinks fit, it is satisfied that:(a) the patient the subject of the application is capable of giving informed consent to the psychosurgery, and(b) the patient has given that consent, and(c) the psychosurgery has clinical merit and is appropriate for the patient, and(d) the person or persons proposing to undertake the performance of the psychosurgery is or are properly qualified to do so, and(e) the hospital or institution in which it is proposed to perform the psychosurgery is a proper place in which to perform it, and(f) all other reasonable treatments for the patient have been adequately and skilfully administered without sufficient resulting benefits to the patient, and(g) there do not appear to be any other considerations that should be taken into account.
A consent of the Board (including a consent given under section 176) must specify:(a) the name of the patient, and(b) the name or names of the person or persons proposing to perform the psychosurgery, and(c) the exact nature of the psychosurgery proposed to be performed, and(d) the name of the hospital or institution in which it is proposed to perform the psychosurgery, and(e) the period within which the psychosurgery is to be performed.
171 Circumstances in which Board must refuse to consent to psychosurgery
(1) The Board must refuse to consent to an application to perform psychosurgery on a patient if, after hearing the application and making such inquiries and conducting such examinations with respect to the application as it thinks fit, it is satisfied that the patient the subject of the application is capable of giving informed consent to the psychosurgery and has not given that consent.(2) The Board must refuse to consent to such an application if it is not satisfied as to any one or more of the matters specified in section 169 (c)–(g).
(1) The Board must give notice, in writing, of a consent (including a consent given under section 176) to the applicant for the consent, the patient and the patient’s Australian legal practitioner, if any, within 7 days after the date on which the consent is given.(2) The Board must give notice, in writing, of a refusal to give a consent to the applicant for the consent as soon as practicable after the refusal is made.(3) A notice of refusal must state the Board’s reasons for refusing to give the consent.
A consent of the Board (including a consent under section 176) lapses if the psychosurgery the subject of the consent is not performed within the period specified in the consent.
174 Board may state case for Court’s opinion
(1) The Board may state a case for the Court if, after hearing an application for consent to perform psychosurgery on a patient and making such inquiries and conducting such examinations as it thinks fit:(a) it is not satisfied that the patient the subject of the application is capable of giving informed consent to the psychosurgery, and(b) it is satisfied as to the matters specified in section 169 (c)–(g), and(c) it is satisfied that the patient has not indicated any opposition to the psychosurgery.(2) The stated case may ask the Court to determine:(a) whether the patient is capable of giving informed consent to the psychosurgery, and(b) whether the patient has given that consent, and(c) if the Court determines that the patient is not capable of giving that consent, whether the Court should give that consent on behalf of the patient.
175 Determination of stated case
If the Court, after hearing a case stated for its determination in respect of an application to the Board for its consent to the performance of psychosurgery on a patient, finds that the patient:(a) is capable of giving informed consent but has not given that consent, it must make an order refusing the application, or(b) is capable of giving informed consent and has given that consent, it must make an order remitting the application to the Board for the purpose of enabling the Board to consent to the application, or(c) is not capable of giving informed consent and that, in the interests of the patient, that consent should not be given, it must decline to give that consent on behalf of the patient and must make an order refusing the application.
176 Granting of consent on remission of application
On the remission of an application to the Board by the Court, the Board must consent to the application.
(1) A person who performs psychosurgery on a patient pursuant to a consent of the Board must, within 14 days after performing the psychosurgery, furnish to the Board a report in writing as to the operation and its outcome.(2) The medical superintendent or person in charge, as the case may be, of the hospital or other place at which the psychosurgery is performed must, within 30 days after the psychosurgery is performed, furnish to the Board the discharge summary relating to the patient on whom the psychosurgery was performed.(3) A psychiatric report in writing as to the outcome of the performance of psychosurgery on a patient must be furnished to the Board within 30 days after the performance of the psychosurgery:(a) by the applicant for consent, if the applicant is a psychiatrist, and(b) by the psychiatrist treating the patient, if the psychiatrist is not the applicant.(4) A psychiatric report in writing as to the outcome of the performance of psychosurgery on a patient must be furnished to the Board 6 months after the performance of the psychosurgery by the psychiatrist treating the patient.(5) A person must not, after furnishing such a report, fail or refuse, for any cause, to furnish to the Board such information as the person has in relation to the patient and as the Board may request.Maximum penalty: 10 penalty units.
(1) The Board is, for the purpose of advancing research into psychosurgery, to review, as often as it thinks fit, the case of each patient on whom psychosurgery has been performed.(2) For the purposes of exercising its functions under this section, the Board may make or cause to be made such observations of patients and make such arrangements for the gathering and recording of information as it thinks fit.
Division 2 Electro convulsive therapy and certain prescribed treatments
This Division applies to the following treatments:(a) electro convulsive therapy,(b) such operations or medical or therapeutic treatments as may be prescribed for the purposes of this Division.
180 Administration of treatment
(1) A person who is not a medical practitioner must not administer to another person a treatment to which this Division applies.(2) A medical practitioner must not administer to a person a treatment to which this Division applies, otherwise than in accordance with this Division.Maximum penalty: 50 penalty units.
181 Persons who must be present during administration of electro convulsive therapy
A medical practitioner must not administer electro convulsive therapy to a person unless, during the administration of the electro convulsive therapy, not less than 2 medical practitioners are present (of whom the medical practitioner administering the electro convulsive therapy may be one):(a) one of whom is experienced in the administration of electro convulsive therapy, and(b) the other or one other of whom is experienced in the administration of anaesthesia.Maximum penalty: 50 penalty units.
182 Places at which treatment may be administered
A medical practitioner must not administer to a person a treatment to which this Division applies, otherwise than at:(a) a hospital, or(b) a place approved by the Director-General.Maximum penalty: 50 penalty units.
183 Requirements for obtaining informed consent
(1) Before the consent of a person is obtained to the administration to the person of a treatment to which this Division applies:(a) a fair explanation must be made to the person of the techniques or procedures to be followed, including an identification and explanation of any technique or procedure about which there is not sufficient data to recommend it as a recognised treatment or to reliably predict the outcome of its performance, and(b) a full description must be given, without exaggeration or concealment, to the person of the possible attendant discomforts and risks (including possible loss of memory), if any, and(c) a full description must be given to the person of the benefits, if any, to be expected, and(d) a full disclosure must be made, without exaggeration or concealment, to the person of appropriate alternative treatments, if any, that would be advantageous for the person, and(e) an offer must be made to the person to answer any inquiries concerning the procedures or any part of them, and(f) notice must be given to the person that the person is free to refuse or to withdraw consent and to discontinue the procedures or any of them at any time, and(g) a full disclosure must be made to the person of any financial relationship between the person proposing the administration of the treatment or the medical practitioner who proposes to administer the treatment, or both, and the hospital or institution in which it is proposed to administer the treatment, and(h) notice must be given to the person that the person has the right to obtain legal and medical advice and to be represented before giving consent, and(i) any question relating to the techniques or procedures to be followed that is asked by the person must have been answered and the answers must appear to have been understood by the person.(2) The regulations are to prescribe forms to be used for the purpose of setting out in writing the matters required by subsection (1) to be explained, described, disclosed, offered or notified and an oral explanation of the matters dealt with in the forms must be given to the person concerned in a language with which the person is familiar.(3) A person is, for the purposes of this Division, to be taken to have given informed consent to the performance on the person of a treatment to which this Division applies if the person has given a free, voluntary and written consent after this section has been complied with.
184 Persons presumed incapable of giving informed consent
A person is presumed to be incapable of giving informed consent to the administration to the person of a treatment to which this Division applies if, before, or at, the time at which the consent is sought, the person has received medication which, at the time the consent is sought, impairs the person’s ability to give that consent.
185 Circumstances in which treatment may be administered with consent—persons other than involuntary patients
(1) A medical practitioner may administer a treatment to which this Division applies to a person, other than a temporary patient, continued treatment patient, forensic patient or any other person under detention in a hospital:(a) if the person is capable of giving informed consent to the administration to the person of the treatment and has given that consent, in writing, in the prescribed form, and(b) if 2 medical practitioners, at least one of whom is a psychiatrist, certify, in writing, that, after considering the person’s clinical condition, history of treatment and any appropriate alternative treatments, they are of the opinion that the treatment is a reasonable and proper treatment to be administered to the person and is necessary or desirable for the safety or welfare of the person.(2) A medical superintendent who is unsure whether a person is capable of giving informed consent may apply to the Tribunal to have the Tribunal determine whether the person is capable of giving informed consent and has given that consent.
187 Circumstances in which treatment may be administered to involuntary patients etc
A medical practitioner may administer a treatment to which this Division applies to a temporary patient, continued treatment patient, forensic patient or any other person under detention in a hospital if, after an inquiry under this Division, the Tribunal makes a determination under section 194.
188 Application to Tribunal to administer treatment to involuntary patients
(1) If at least 2 medical practitioners, at least one of whom is a psychiatrist, certify, in writing, that, after considering the clinical condition and history of treatment of, and any appropriate alternative treatments for, a patient (not being an informal patient) or any other person under detention in a hospital, they are of the opinion that treatment to which this Division applies is:(a) a reasonable and proper treatment to be administered to the patient or person, and(b) necessary or desirable for the safety or welfare of the patient or person,the medical superintendent may apply to the Tribunal to determine the matters set out in subsection (2).(2) The matters to be determined are:(a) whether or not the patient or person is capable of giving informed consent to the administration to the patient or person of the treatment and has given that consent, and(b) in the case of proposed electro convulsive therapy, if the patient is incapable of giving informed consent or capable of giving informed consent but has refused, or has neither consented nor refused, to the administration of the treatment, whether its administration is reasonable and proper and is necessary or desirable for the safety or welfare of the person.
190 Notice of inquiry to obtain or determine consent
(1) On making an application to the Tribunal under section 185 or 188 in respect of a person or patient, the medical superintendent must, in accordance with the regulations, do all such things as are reasonably practicable to give notice to the following persons of the application:(a) the nearest relative, if there is one, of the person or patient or a relative nominated by the person or patient,(b) the person’s or patient’s guardian, if any,(c) any personal friend or friends of the person or patient, up to 2 in number, who are known as his or her personal friends.(2) The medical superintendent must not, however, give notice to any person of an application under section 185 unless the person the subject of the application consents.
(1) On an application under section 185 or 188, the Tribunal must, as soon as practicable, hold an inquiry to determine the matters set out in the section concerned.(2) The medical superintendent must ensure that, so far as is reasonably practicable, the person or patient the subject of the application is, when appearing before the Tribunal, dressed in street clothes.
192 Matters to be checked by Tribunal
(1) As soon as practicable after the beginning of an inquiry, the Tribunal is required to ascertain from the patient or person the subject of the application being heard whether the patient or person:(a) has been informed of the duty imposed under section 190 on the medical superintendent, and(b) has been informed of the nature and possible results of the inquiry and, if the patient or person has not or appears not to have been so informed, the Tribunal must so inform the patient or person.(2) As soon as practicable after the beginning of an inquiry, the Tribunal is required to ascertain from the medical superintendent whether the notice under section 190 has been given (if required) or all such things as are reasonably practicable have been done to give that notice.
193 Matters which must be considered by Tribunal
(1) In the course of the inquiry, the Tribunal must consider the certificates of the medical practitioners under section 185 or 188 concerning the person or patient the subject of the application and must consider the person’s or patient’s views about the treatment and such other information as may be placed before the Tribunal.(2) In the course of the inquiry, the Tribunal must inquire as to the administration of any medication to the patient or person and is to take account of the effect of the administration of the medication on the patient’s or person’s ability to communicate.
(1) The Tribunal may, after holding an inquiry on an application under section 185 or 188 concerning a person or patient, determine that the person or patient:(a) is capable of giving informed consent to the administration to the person or patient of a treatment to which this Division applies, and(b) has given that consent.(2) After holding an inquiry on an application under section 188 concerning the administration of electro convulsive therapy to a person or patient, the Tribunal may determine:(a) that the person or patient is incapable of giving informed consent to the administration to the person or patient of electro convulsive therapy, or is capable of giving that consent but has refused, or has neither consented nor refused, to have the treatment administered to the person or patient, and(b) that, after considering the medical opinions and any other information placed before it, the Tribunal is satisfied the electro convulsive therapy is a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the person or patient.
195 Refusal of treatment by medical superintendent
A medical superintendent (not being a medical officer nominated by the medical superintendent) may refuse to allow the administration to a person of a treatment to which this Division applies, even though the Tribunal has made a determination, in accordance with section 194, as to the person.
(1) A register, in the prescribed form, for the purpose of recording information relating to the administration of treatments to which this Division applies, is to be kept or caused to be kept:(a) in relation to a hospital—by the medical superintendent, or(b) in relation to a place approved by the Director-General under section 182—by a person specified by the Director-General.(2) The medical superintendent or person specified by the Director-General, as the case requires, must, before the administration of a treatment to which this Division applies, enter, or cause to be entered, in the register such particulars in relation to the administration of that treatment as are required to complete an entry in that register.(3) If the particulars of a treatment to which this Division applies as administered are different from the particulars entered, in relation to the administration of the treatment, in the register, the medical superintendent or person specified by the Director-General, as the case requires, must note the differences and the explanation for the differences in the register.(4) A member of the Tribunal, the Principal official visitor, an official visitor or an authorised officer may, at any time, inspect a register.
Division 3 Prohibited treatments
A person must not administer to or perform on another person:(a) deep sleep therapy, or(b) insulin coma therapy, or(c) an operation or treatment prescribed for the purposes of this section.Maximum penalty: 50 penalty units.
198 Administration of drugs—generally
A medical practitioner must not administer or cause to be administered to a person, in relation to any mental illness from which the person is or is suspected to be suffering or in relation to any mental condition of the person, a dosage or dosages of a drug or drugs which, having regard to proper professional standards, is or are excessive or inappropriate.Maximum penalty: 50 penalty units.
199 Administration of drugs in hospitals
The medical superintendent is to establish and maintain an internal review system within the hospital to monitor and review the prescription and utilisation of drugs in use within the hospital in terms of frequency of administration, dosage, intended and unintended effects and appropriateness of use.