Mental Health Bill 2007

Overview of Bill
The objects of this Bill are to make provision with respect to the care, treatment and
control of mentally ill persons and mentally disordered persons and other matters
relating to mental health. The Bill re-enacts the provisions of the Mental Health Act
1990, with amendments, generally in accordance with proposals relating to patients
(other than forensic patients) arising from a statutory review of that Act.
The Bill is divided into Chapters, Parts and Divisions. Each Chapter deals with a
discrete subject-matter relating to mental health.
Outline of provisions
Chapter 1 Preliminary
Chapter 1 (proposed sections 1–4) contains provisions relating to the citation and
commencement of the proposed Act, as well as provisions defining words and
expressions used in the proposed Act. The proposed Chapter also sets out the objects
of the proposed Act in relation to the care, treatment and control of mentally ill
persons and mentally disordered persons.
Chapter 2 Voluntary admission to facilities
Chapter 2 (proposed sections 5–11) sets out the circumstances in which a person may
be admitted voluntarily to a mental health facility as a voluntary patient under the
proposed Act. It also sets out the additional requirements relating to the voluntary
admission of children and persons under guardianship. An authorised medical
officer (that is, a medical superintendent of a mental health facility or a medical
officer nominated by the medical superintendent) may refuse to admit a person as a
voluntary patient and may discharge a person as a voluntary patient. A right of appeal
is provided to the medical superintendent against any such decision by a medical
officer nominated by the medical superintendent. The case of a voluntary patient
must be reviewed at least once a year, if the patient remains in a mental health
facility.
Chapter 3 Involuntary admission and treatment in
and outside facilities
Part 1 Requirements for involuntary admission,
detention and treatment
The Part (proposed sections 12–16) provides that a 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 the person is a mentally ill
person or a mentally disordered person and that no other care of a less restrictive kind
is appropriate and reasonably available to the person. An authorised medical officer
has a duty to discharge a person if not of that opinion. The Part sets out the criteria
which a person who is suffering from mental illness or who is mentally disordered
must satisfy before being considered to be a mentally ill person or mentally
disordered person for the purpose of involuntary detention under the proposed Act or
being made subject to a community treatment order under the proposed Act.
Part 2 Involuntary detention and treatment in mental
health facilities
Division 1 Preliminary
The Division (proposed section 17) defines expressions used in the proposed Part.
Division 2 Admission to and initial detention in mental health
facilities
The Division (proposed sections 18–33) sets out the circumstances in which a person
may be brought to, and detained involuntarily in, a mental health facility under the
proposed Act. The Division specifies the requirements that are to be satisfied before
a person can be taken to and detained in a mental health facility, including on the
certificate of a medical practitioner or other person accredited by the
Director-General of the Department of Health (the Director-General), on the
information of an ambulance officer, after apprehension by a police officer,
following the making of an order by a Magistrate or other authorised person in the
case of a person who is physically inaccessible to ordinary medical examination or
observation, on an order of a court or bail officer, on transfer from another health
facility or at the request of a primary carer, relative or friend.
The Division also sets out the steps to be taken following the involuntary detention
of a person in a mental health facility, including the carrying out of medical
examinations and the notification of friends and relatives of the person’s detention.
A person who is found, after those steps are taken, to be a mentally ill person (an
assessable person) must be the subject of a Magistrate’s inquiry (a mental health
inquiry). A person who is found, after those steps are taken, to be a mentally
disordered person must not be detained for a period of more than 3 days (not
including weekends and public holidays). A person who is not found, after those
steps are taken, by 2 medical practitioners to be either a mentally ill person or a
mentally disordered person, must be released. The Division provides for further
limited detention to enable police to take action in relation to certain persons.
Division 3 Continuing detention in mental health facilities
The Division (proposed sections 34–45) provides for the procedures and purpose of
mental health inquiries to determine whether an assessable person is, on the balance
of probabilities, a mentally ill person and the course of action to be taken in respect
of the person. On a finding that a person is a mentally ill person, the Magistrate must,
if of the opinion that it is appropriate to do so, order that the person be detained in a
mental health facility as an involuntary patient for a period not exceeding 3 months.
If not of that opinion, the Magistrate may order the person’s discharge or make a
community treatment order for the person.
The Division also deals with the periodic review (every 3 months) by the Mental
Health Review Tribunal (the Tribunal) of persons who are found at an inquiry to be
mentally ill persons requiring detention. The Tribunal must order the discharge of a
patient on a review if it does not determine that the patient is a mentally ill person
and that no other care of a less restrictive kind is appropriate and reasonably available
to the person. An involuntary patient must be examined by an authorised medical
officer at least once every 3 months.
The Division sets out other circumstances in which an involuntary patient may cease
to be involuntarily detained in a mental health facility, including on re-classification
as a voluntary patient, when a community treatment order is made and by discharge
after an application by the patient or the primary carer or another person or if a person
is absent from a facility for more than 12 months.
There is an appeal to the Tribunal against a refusal of or failure to determine an
application for discharge.
Division 4 Leave of absence from mental health facilities
The Division (proposed sections 46–49) provides for leave of absence from detention
in a mental health facility to be granted to patients and detained persons and for the
apprehension of patients or persons who fail to return after leave of absence expires
or to comply with a condition of leave of absence.
Part 3 Involuntary treatment in the community
The Part establishes a scheme for the mandatory treatment of persons outside mental
health facilities under community treatment orders.
Division 1 Applications for and making of community
treatment orders
The Division (proposed sections 50–56) enables the Tribunal, on application or on
its own motion, or a Magistrate holding a mental health inquiry, to make a
community treatment order in respect of a person (the affected person). The Division
specifies that such an order may not be made in respect of a person unless specified
criteria relating to the person’s previous history and treatment are met, a treatment
plan is proposed by a declared mental health facility and the Tribunal or Magistrate
is satisfied that the facility is capable of implementing it. The Division also specifies
requirements for treatment plans and provides for the form and duration of
community treatment orders. A community treatment order may not last for more
than 12 months.
Division 2 Operation of community treatment orders
The Division (proposed sections 57–64) provides for the operation and enforcement
of community treatment orders. An affected person is required to attend at a specified
place to receive treatment by a specified mental health facility. Medication may be
administered to an affected person without consent for the purposes of an order. A
person who breaches an order may be taken to the relevant mental health facility or
another mental health facility and may be given treatment there or assessed for
involuntary admission to a mental health facility. A person who refuses treatment
after being taken to the supervising mental health facility may be taken to another
mental health facility. A person taken to such a mental health facility may be detained
there for the duration of the community treatment order but must be released in
specified circumstances. The Tribunal is to review the case of an affected person
detained after breach of a community treatment order every 3 months to determine
whether the person is a mentally ill person for whom no other care is appropriate and
reasonably available.
Division 3 Revocation, variation and review of community
treatment orders
The Division (proposed sections 65–67) provides for the variation and revocation of
community treatment orders and for appeals against community treatment orders.
Chapter 4 Care and treatment
Part 1 Rights of patients or detained persons and
primary carers
Division 1 General
The Division (proposed sections 68–72) sets out general principles for the care and
treatment of people with a mental illness or mental disorder, including the principle
that people with a mental illness or a mental disorder should receive the best possible
care and treatment in the least restrictive environment enabling the care and
treatment to be effectively given. The Division makes it an offence for an authorised
medical officer or an employee at a mental health facility wilfully to strike, wound,
ill-treat or neglect a patient or detained person. It also requires interpreters to be
provided for medical examinations if a person cannot communicate adequately in
English. The Division also provides for primary carers under the proposed Act,
including the process for nominating primary carers.
Division 2 Notification and information sharing
The Division (proposed sections 73–79) contains provisions setting out the rights of
patients and persons detained in mental health facilities, and their primary carers, to
be notified of events affecting those patients and persons and of their rights under the
proposed Act. The rights include the right to be informed about medication and
medication dosages, to be given an oral and written explanation of rights under the
Act, to be notified about mental health inquiries and appeal rights and to be consulted
in discharge planning. In addition, a primary carer will have the right to be notified
of a person’s initial detention and other events affecting the person, including
absences, transfer to other facilities, medical treatments and re-classification.
Division 3 Transfer of patients
The Division (proposed sections 80 and 81) enables the transfer of patients and
persons to and from mental health facilities and other facilities. It also sets out the
persons who may take or transfer a person to or from a mental health facility,
including members of staff of the NSW Health Service, ambulance officers and
police officers, and confers powers on them to use reasonable force and to restrain
persons in ways that are reasonably necessary in the circumstances. A search power
is also conferred on these persons.
Part 2 Mental health treatments
Division 1 Preliminary
The Division (proposed section 82) defines expressions used in the proposed Part.
Division 2 General provisions about mental health treatment
The Division (proposed sections 83–86) prohibits the administration of deep sleep
therapy, insulin coma therapy, psychosurgery and other prescribed operations or
treatments and provides for the regulation of the administration of drugs. It also
authorises an authorised medical officer (subject to the proposed Act) to treat patients
or persons detained in mental health facilities. It will be an offence for a medical
practitioner to administer excessive or inappropriate dosages of drugs in relation to a
mental illness or mental condition. An internal review system must be established to
monitor and review the prescription of drugs in a mental health facility.
Division 3 Electro convulsive therapy
The Division (proposed sections 87–97) regulates the administration of electro
convulsive therapy. Any such treatment must be given in accordance with the
Division, which specifies that it must be given by a medical practitioner in the
presence of at least 1 other medical practitioner. Of the medical practitioners, 1 must
be experienced in electro convulsive therapy and 1 must be experienced in
anaesthesia. The Division specifies the circumstances in which such treatment may
be administered without consent to an involuntary patient, after an inquiry by the
Tribunal, and a finding that informed consent has been given or that the treatment is
a reasonable and proper treatment and is necessary and desirable for the safety and
welfare of the patient. For a person other than an involuntary patient, the Division
requires treatment to be given only after informed consent is given and a certificate
is given by at least 2 medical practitioners (including at least 1 psychiatrist) that the
treatment is reasonable and proper treatment to be administered to the person and
necessary or desirable for the person’s safety or welfare. The Tribunal may
determine whether informed consent has been given. A determination of the Tribunal
has effect for 6 months unless another period is specified in the determination. A
register of treatments is to be kept in relation to each place at which electro
convulsive therapy is administered.
Part 3 Other medical treatments
The Part (proposed sections 98–104) regulates the performance of certain surgical
operations on persons involuntarily detained in a mental health facility and the
performance of special medical treatment (including procedures to render a person
infertile) on such persons. The Director-General may, in the case of an emergency,
consent to the performance of a surgical operation on a patient where the patient is
incapable of giving, or fails or refuses to give, consent. A medical practitioner may
carry out special medical treatment on a patient, in case of an emergency. Provision
is made, in other cases, for an authorised medical officer of a mental health facility
to apply, after the giving of notice to certain persons, to the Director-General or the
Tribunal for consent to perform surgical operations or for consent to carry out special
medical treatment in relation to persons involuntarily detained in a mental health
facility.
Chapter 5 Administration
Part 1 Administrative objectives and functions
The Part (proposed sections 105–108) sets out the objectives of the New South Wales
public health system in relation to mental health services as well as the general
functions of the Director-General under the proposed Act. It also contains other
administrative provisions, including the Director-General’s delegation power and the
requirement for the Director-General to prepare an annual report for the Minister
about mental health services and other matters.
Part 2 Mental health facilities
Division 1 Declared mental health facilities
The Division (proposed sections 109–114) provides for the establishment of declared
mental health facilities under the proposed Act and the appointment of medical
superintendents and deputy medical superintendents of those facilities. It also
provides for the appointment of directors and deputy directors of community
treatment and psychiatric case managers for the purposes of community treatment
orders.
Division 2 Private mental health facilities
The Division (proposed sections 115–127) provides for the licensing of private
mental health facilities, for medical supervision of those facilities and for the
appointment of medical superintendents and deputy medical superintendents to those
facilities.
Part 3 Official visitors and accredited persons
The Part (proposed sections 128–136) provides for the appointment and functions of
official visitors and accredited persons. Official visitors and a Principal official
visitor may be appointed by the Minister to inspect mental health facilities and make
inquiries with regard to the care, treatment and control of patients. Among other
functions, the Principal official visitor is to oversee the official visitor program and
to act as an advocate to the Minister for consumers of mental health care. The Part
sets out the inspection obligations of official visitors and the requirement for medical
superintendents and administrators to facilitate the inspection of premises and
interviews of patients or detained persons and to produce relevant registers and other
records.
The Part also provides for the appointment of accredited persons by the
Director-General.
Part 4 Inspection powers
The Part (proposed sections 137–139) enables the Director-General to inquire into
the administration, management and services of a mental health facility and, for that
purpose, to cause inspections of facilities to be carried out. The Part sets out the
powers of the authorised officers who carry out the inspections to require persons to
attend and give evidence or produce books and other records and contains a provision
protecting a person who gives self-incriminating evidence.
Chapter 6 Mental Health Review Tribunal
Part 1 The Tribunal
The Part (proposed sections 140–148) constitutes the Mental Health Review
Tribunal and makes general provision in relation to the Tribunal, including provision
for the qualifications of members to be appointed to the Tribunal and the
appointment of a Registrar and staff. The Part also gives proceedings of the Tribunal
protection under the Defamation Act 2005 and enables the President of the Tribunal
to delegate his or her functions.
Part 2 Procedures of the Tribunal
The Part (proposed sections 149–162) sets out matters relating to the composition of
the Tribunal when exercising its functions and to procedure at meetings of the
Tribunal. The Part prohibits a member from determining that a person is a mentally
ill person or a mentally disordered person unless so satisfied on the balance of
probabilities. Unless the Tribunal otherwise orders, the Tribunal’s proceedings are to
be open to the public. The Part contains provisions relating to rights of appearance,
adjournments, inspection of medical records, the production of evidence for the
Tribunal, the use of interpreters and recording proceedings. Regulations may be
made for or with respect to various aspects of Tribunal proceedings, including the
form of representations by victims. It will be an offence to refuse, neglect or for any
reason fail to obey or comply with an order, direction, decision or determination of
the Tribunal. It will also be an offence to publish or broadcast the name of persons
involved in Tribunal reviews and other proceedings.
Chapter 7 Jurisdiction of Supreme Court
The Chapter (proposed sections 163–168) provides for the making of appeals to the
Supreme Court from determinations of the Tribunal or if the Tribunal refuses or fails
to make a determination. The Chapter also provides for the appointment of assessors
having appropriate qualifications and experience to sit with the Court on the hearing
of appeals in order to assist in, but not to adjudicate on, any matter relevant to the
determination of the appeal. Jurisdiction is also conferred on the Court to order a
person who is detained in a mental health facility to be brought before the Court for
examination and to order the person’s release from the facility (or transfer, in the case
of a forensic patient) if the Court is not satisfied that the person meets the criteria for
involuntary detention in a mental health facility.
Chapter 8 Interstate application of mental health
laws
Part 1 Preliminary
The Part (proposed sections 169–173) sets out the objects of the proposed Chapter
and defines expressions used in the proposed Chapter. It also enables the Minister to
enter into agreements with Ministers of other States and Territories to participate in
reciprocal arrangements relating to the transfer, detention, treatment and
apprehension of mental health patients and the interstate operation and enforcement
of community treatment orders. It also provides for the declaration of interstate
mental health laws for the purposes of the proposed Chapter. The remainder of the
proposed Part deals with the actions that may be taken under any such reciprocal
arrangements.
Part 2 Transfer of patients and persons
Division 1 Transfer of persons from this State
The Division (proposed sections 174–176) enables people who may be taken to and
detained in a mental health facility in this State to be taken to mental health facilities
in other States or Territories by people authorised to do so in this State or the other
State or Territory concerned. The Division also provides for the transfer of patients
from this State to other States or Territories.
Division 2 Transfer of persons to this State
The Division (proposed sections 177–180) enables people who may be taken to and
detained in a mental health facility in another State or Territory to be taken to mental
health facilities in this State by people authorised to do so in this State or the other
State or Territory concerned. The Division also provides for the transfer of interstate
involuntary patients to mental health facilities in this State.
Part 3 Community treatment orders and other orders
The Part (proposed sections 181–184) enables community treatment orders to be
made in this State for interstate residents who are to be treated in this State and
provides for the implementation, in this State, of community treatment orders made
in other States or Territories.
Part 4 Apprehension of persons absent from mental
health facility or in breach of orders
The Part (proposed sections 185–187) enables interstate warrants and orders to
apprehend interstate mental health patients to be recognised and enforced in this
State and provides for the detention of patients apprehended under such warrants or
orders in mental health facilities in this State.
Chapter 9 Miscellaneous
The Chapter (proposed sections 188–201) contains miscellaneous provisions,
including provisions relating to the disclosure of information, exclusion from
liability of police officers, health care professionals and ambulance officers, service
of documents, approved forms, the role of the objects provisions and
regulation-making powers. The Chapter also provides for a 5-year review of the Act
and repeals the Mental Health Act 1990.
Schedule 1 Medical certificate as to examination or
observation of person
The Schedule contains the form of the mental health certificate for use for the
detention of a person in a declared mental health facility.
Schedule 2 Mental health inquiries
The Schedule contains procedural provisions relating to the conduct of mental health
inquiries by Magistrates to determine whether persons should be detained in mental
health facilities as involuntary patients.
Schedule 3 Statement of rights
The Schedule contains the statement of rights which is to be given to a person as soon
as practicable after a person is taken to and detained in a mental health facility, or it
is decided to take steps to detain a person already in a facility.
Explanatory note page 11
Mental Health Bill 2007
Explanatory note
Schedule 4 Provisions relating to Principal official
visitor and official visitors
The Schedule contains provisions relating to the remuneration and tenure of office of
the Principal official visitor and official visitors.
Schedule 5 Provisions relating to members of
Tribunal
The Schedule contains provisions relating to the members of the Tribunal.
Schedule 6 Savings, transitional and other
provisions
The Schedule contains savings, transitional and other provisions consequent on the
enactment of the proposed Act.
Schedule 7 Amendment of other Acts
The Schedule makes consequential amendments to other Acts. The Schedule inserts
into the Mental Health (Criminal Procedure) Act 1990, with only consequential
changes, the provisions of the former Mental Health Act 1990 relating to the review,
detention, care, treatment and release of forensic patients.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.