Mental Health (Amendment) Act 2003

Victorian Legislation and Parliamentary Documents i Mental Health (Amendment) Act 2003 Act No. 76/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 3. Principal Act 2 PART 2—AMENDMENTS RELATING TO INVOLUNTARY PATIENTS 3 4. Definitions 3 5. New Division 1 of Part 3 inserted 5 Division 1—Introductory 5 7. Definitions 5 6. Criteria for involuntary treatment 6 7. New section 9 substituted and sections 9A and 9B inserted 7 9. Request and recommendation for involuntary treatment 7 9A. Authority to transport 8 9B. Taking a person to an approved mental health service 9 8. Apprehension of mentally ill persons 10 9. New section 12 substituted and sections 12AA to 12AE inserted 11 12. Involuntary treatment orders—assessment in the community 11 12AA. Involuntary treatment orders—persons taken to an approved mental health service 12 12AB. Interim treatment under involuntary treatment order 13 12AC. Examination by authorised psychiatrist 14 12AD. Treatment for involuntary patients 15 12AE. Notification of guardian 16 10. Continued detention and treatment 16 11. New section 13 substituted 16 13. Admission to a general hospital or emergency department 16 12. New section 14 substituted and sections 14A to 14E inserted 17 14. Community treatment orders 17 14A. Monitoring persons on community treatment orders 19 14B. Extension of community treatment orders 20 -- 1 of 61 -- Victorian Legislation and Parliamentary Documents Section Page ii 14C. Variation of community treatment orders 21 14D. Revocation of community treatment orders 21 14E. Effect of person's detention in custody etc. on involuntary treatment orders and community treatment orders 22 13. Persons convicted of offences or in prison 23 14. New section 15AB inserted 24 15AB. Monitoring persons on restricted community treatment orders 24 15. New sections 15B and 15C substituted and sections 15D and 15E inserted 25 15B. Extension of restricted community treatment orders 25 15C. Variation of restricted community treatment orders 26 15D. Revocation of restricted community treatment orders 27 15E. Effect of person's detention etc. on restricted community treatment orders 28 16. Transfer of mentally ill prisoners 28 17. Statement of patient's rights 29 18. New section 19A inserted 29 19A. Treatment plans 29 19. Appeals and reviews 31 20. New sections 30 and 31 substituted 32 30. Reviews 32 31. Appeals and reviews may be held concurrently 34 21. Further amendments regarding appeals and reviews 34 22. New section 35A inserted 34 35A. Review of treatment plans 34 23. New section 36 substituted and sections 36A to 36E inserted 35 36. Power of Board on appeal or review of involuntary treatment orders—patients who are detained 35 36A. Power of Board on appeal or review of hospital transfer orders 36 36B. Power of Board on appeal or review of orders under the Sentencing Act 1991—patients who are detained 37 36C. Power of Board on appeal or review for patients on community treatment orders 37 36D. Power of Board on appeal or review for patients on restricted community treatment orders 39 36E. Power of Board on appeal or review—continued detention under section 12A(4) or 12C 40 24. New section 37 substituted 41 37. Discharge of involuntary patients 41 25. Consequential amendments 43 26. Interstate provisions 44 27. Further consequential amendments 46 28. Transitional provisions 48 -- 2 of 61 -- Victorian Legislation and Parliamentary Documents Section Page iii PART 3—CONFIDENTIALITY AND OTHER AMENDMENTS 50 29. Definition 50 30. Secrecy provision—staff of Boards 50 31. Non-psychiatric treatment 50 32. New headings in Division 1 of Part 6 50 33. New section 94A inserted 51 94A. Emergency declaration of approved mental health services 51 34. New section 95 substituted 51 95. Appointment of registered medical practitioners 51 35. Confidentiality 52 36. New section 149 inserted 55 149. Transitional provisions—Mental Health (Amendment) Act 2003 55 37. Membership and procedure of Boards 55 PART 4—AMENDMENT OF CORONERS ACT 1985 57 38. Reportable deaths under the Coroners Act 1985 57 ═══════════════ ENDNOTES 58 -- 3 of 61 -- Victorian Legislation and Parliamentary Documents 1 Mental Health (Amendment) Act 2003† [Assented to 21 October 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are— (a) to amend the Mental Health Act 1986— (i) to clarify and improve the operation of the provisions for involuntary patients and the making of community treatment orders; Victoria No. 76 of 2003 -- 4 of 61 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mental Health (Amendment) Act 2003 Act No. 76/2003 2 (ii) to clarify and improve the operation of confidentiality provisions; (iii) to make miscellaneous amendments; (b) to amend the Coroners Act 1985 to ensure that the death of a patient who is not held in care is a reportable death. 2. Commencement (1) This Act, except Part 2, comes into operation on the day after the day on which it receives the Royal Assent. (2) Subject to sub-section (3), Part 2 comes into operation on a day or days to be proclaimed. (3) If a provision of Part 2 does not come into operation before 1 January 2005, it comes into operation on that day. 3. Principal Act In this Act, the Mental Health Act 1986 is called the Principal Act. __________________ s. 2 See: Act No. 59/1986. Reprint No. 7 as at 1 July 2002 and amending Act Nos 67/1998 and 41/2002. LawToday: www.dms. dpc.vic. gov.au -- 5 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 3 PART 2—AMENDMENTS RELATING TO INVOLUNTARY PATIENTS 4. Definitions (1) In section 3(1) of the Principal Act— (a) for the definition of "community treatment order" substitute— ' "community treatment order" means an order made under section 14;'; (b) for the definition of "involuntary patient" substitute— ' "involuntary patient" means— (a) a person who is subject to an involuntary treatment order (including a person who is subject to a community treatment order); or (b) a person who is subject to a hospital order (including a person who is subject to a restricted community treatment order); or (c) a person who is subject to an assessment order or a diagnosis, assessment and treatment order; or (d) a person who is subject to a hospital transfer order; or (e) a person whose detention and treatment is continued under section 12A(4) or 12C; or (f) a person to whom section 93F, 93H or 93K(5) applies;'; s. 4 -- 6 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 4 (c) in the definition of "security patient", for paragraph (a) substitute— "(a) a person who is subject to a hospital security order or a restricted hospital transfer order; or"; (d) insert the following definitions— ' "assessment order" means an order made under section 90 of the Sentencing Act 1991; "authority to transport" means an authority to transport under section 9A(1)(c); "diagnosis, assessment and treatment order" means an order made under section 91 of the Sentencing Act 1991; "hospital order" means an order made under section 93(1)(d) of the Sentencing Act 1991; "hospital security order" means an order made under section 93(1)(e) of the Sentencing Act 1991; "hospital transfer order" means an order made under section 16(3)(a); "involuntary treatment order" means an order made under section 12 or 12AA; "restricted community treatment order" means an order made under section 15A; "restricted hospital transfer order" means an order made under section 16(3)(b); "request and recommendation" means a request and recommendation under section 9; s. 4 -- 7 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 5 "treatment plan" for a patient, means the patient's treatment plan under section 19A;'. (2) For section 3A(2)(a), (b) and (c) of the Principal Act substitute— "(a) section 8 (criteria for involuntary treatment); (b) section 12AB (interim treatment under involuntary treatment order); (c) section 12AD (treatment for involuntary patients);". 5. New Division 1 of Part 3 inserted After the heading to Part 3 of the Principal Act insert— 'Division 1—Introductory 7. Definitions In this Part— "authorised person" means— (a) a registered medical practitioner; or (b) a registered nurse; or (c) a person who is a member of a class of health service providers prescribed as a class of authorised persons for the purposes of this Part; "mental health practitioner" means a person who is a member of a class of health service providers prescribed as a class of mental health practitioners for the purposes of this Part; s. 5 -- 8 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 6 "prescribed person" means— (a) a member of the police force; or (b) an ambulance officer; or (c) a person who is a member of a class prescribed as a class of prescribed persons for the purposes of this Part; "prescribed registered medical practitioner" means a registered medical practitioner of a class prescribed as a class of registered medical practitioners for the purposes of this Part.'. 6. Criteria for involuntary treatment (1) Insert the following heading to section 8 of the Principal Act— "Criteria for involuntary treatment". (2) For section 8(1) of the Principal Act substitute— "(1) The criteria for the involuntary treatment of a person under this Act are that— (a) the person appears to be mentally ill; and (b) the person's mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an involuntary treatment order; and (c) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the s. 6 -- 9 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 7 protection of members of the public; and (d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and (e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action. Note: In considering whether a person has refused or is unable to consent to treatment, see section 3A.". 7. New section 9 substituted and sections 9A and 9B inserted For section 9 of the Principal Act substitute— "9. Request and recommendation for involuntary treatment (1) The documents required to initiate the involuntary treatment of a person are— (a) a request in the prescribed form and containing the prescribed particulars; and (b) a recommendation in the prescribed form by a registered medical practitioner following a personal examination of the person. (2) A request may be signed before or after a recommendation is made. (3) A registered medical practitioner must not make a recommendation under sub-section (1) unless he or she considers that— (a) the criteria in section 8(1) apply to the person; and s. 7 -- 10 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 8 (b) an involuntary treatment order should be made for the person. (4) A request and recommendation have effect for 72 hours following the examination of the person by the registered medical practitioner who made the recommendation. (5) While they have effect, a request and recommendation made in accordance with this section are sufficient authority for a person referred to in sub-section (6) to— (a) arrange for the assessment of the person to whom the recommendation relates by a mental health practitioner; or (b) take the person to whom the recommendation relates to an appropriate approved mental health service. (6) The persons who may take action under sub- section (5) are— (a) the person making the request; or (b) a person authorised by the person making the request; or (c) a prescribed person. 9A. Authority to transport (1) Despite anything to the contrary in section 9, a person in respect of whom a request is made in accordance with section 9(1)(a) may be taken to an appropriate approved mental health service without a recommendation being made under section 9(1)(b) if— (a) a registered medical practitioner is not available within a reasonable period to consider making a recommendation despite all reasonable steps having been s. 7 -- 11 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 9 taken to secure the attendance of one; and (b) a mental health practitioner considers that— (i) the criteria in section 8(1) apply to the person; and (ii) the person should be taken to an approved mental health service for examination by a registered medical practitioner for the purpose of making a recommendation; and (c) the mental health practitioner completes an authority to transport in the prescribed form containing the prescribed particulars. (2) A person who has made a request under section 9(1)(a) in respect of a person must not complete an authority to transport that person under sub-section (1)(c). 9B. Taking a person to an approved mental health service (1) This section applies if a person is to be taken to an approved mental health service under— (a) a request and recommendation; or (b) an authority to transport; or (c) section 12(2)(a) or 12(6); or (d) section 12AC(4)(b). s. 7 -- 12 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 10 (2) For the purpose of taking the person to the approved mental health service, a prescribed person may with such assistance as is required and such force as may be reasonably necessary— (a) enter any premises in which the prescribed person has reasonable grounds for believing that the person may be found; and (b) if necessary to enable the person to be so taken safely, use such restraint as may be reasonably necessary. (3) If a prescribed registered medical practitioner considers that it is necessary to sedate the person so that the person can be taken safely to the approved mental health service, the prescribed registered medical practitioner may administer or direct an authorised person to administer sedation to the person. (4) A person who uses restraint under sub- section (2) or administers sedation or directs an authorised person to administer sedation under sub-section (3) must specify the particulars required by the prescribed form and deal with the prescribed form in accordance with the regulations.". 8. Apprehension of mentally ill persons In section 10 of the Principal Act— (a) in sub-section (5)(b), for "section 9(7A)" substitute "section 9A(1)"; (b) sub-section (10) is repealed. s. 8 -- 13 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 11 9. New section 12 substituted and sections 12AA to 12AE inserted For section 12 of the Principal Act substitute— '12. Involuntary treatment orders— assessment in the community (1) This section applies if— (a) a request and recommendation have been made for a person; and (b) a mental health practitioner has assessed the person in accordance with the request and recommendation. (2) The mental health practitioner must— (a) take the person, or arrange for the person to be taken, to an appropriate approved mental health service; or (b) make an involuntary treatment order for the person. (3) The mental health practitioner must have regard to the criteria in section 8(1) in deciding what action to take under sub- section (2). (4) An involuntary treatment order under this section must be in the prescribed form and contain the prescribed particulars. (5) If the mental health practitioner makes an involuntary treatment order for a person but does not consider that— (a) the criteria in section 8(1) apply to the person; or s. 9 -- 14 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 12 (b) an involuntary treatment order should be made for the person— the practitioner must notify the authorised psychiatrist of the appropriate approved mental health service as soon as practicable. (6) At any time after an involuntary treatment order is made for a person under this section, but before the authorised psychiatrist examines the person under section 12AC, a mental health practitioner may take the person, or arrange for the person to be taken, to an appropriate approved mental health service if the mental health practitioner considers it necessary to do so. (7) If a person is taken to an approved mental health service under sub-section (6), the involuntary treatment order is sufficient authority for the detention of the person in the approved mental health service until the authorised psychiatrist examines him or her under section 12AC. 12AA. Involuntary treatment orders—persons taken to an approved mental health service (1) This section applies if— (a) a request and recommendation have been made for a person; and (b) the person has been taken to an approved mental health service. (2) A registered medical practitioner employed by the approved mental health service to which the person has been taken must make an involuntary treatment order for the person. s. 9 -- 15 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 13 (3) An involuntary treatment order under this section must be in the prescribed form and contain the prescribed particulars. (4) An involuntary treatment order made for a person in accordance with this section is sufficient authority for the detention of the person in an approved mental health service. (5) If the registered medical practitioner who makes an involuntary treatment order for a person under sub-section (2) does not consider that— (a) the criteria in section 8(1) apply to the person; or (b) an involuntary treatment order should be made for the person— the practitioner must notify the authorised psychiatrist as soon as practicable. 12AB. Interim treatment under involuntary treatment order (1) This section applies to a person who is subject to an involuntary treatment order at any time before he or she is examined by the authorised psychiatrist under section 12AC. (2) If a registered medical practitioner employed by the approved mental health service considers that— (a) the person requires any treatment immediately; and (b) the person is unable to consent to that treatment; and (c) the treatment required is of such a nature that it would not be in the best interests of the person to await s. 9 -- 16 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 14 examination by the authorised psychiatrist under section 12AC— the practitioner may on behalf of the person consent to the treatment being carried out until the authorised psychiatrist examines the person under section 12AC. Note: In considering whether a person has refused or is unable to consent to treatment, see section 3A. 12AC. Examination by authorised psychiatrist (1) If an involuntary treatment order is made for a person, the authorised psychiatrist must examine the person— (a) if section 12(5) or 12AA(5) applies—as soon as practicable after the order is made, but in any case within 24 hours after the order is made; or (b) otherwise—within 24 hours after the order is made. (2) On examining the person under sub- section (1)— (a) if the authorised psychiatrist considers that the criteria in section 8(1) do not apply to the person—the authorised psychiatrist must discharge the person from the order; (b) if the authorised psychiatrist is satisfied that the criteria in section 8(1) apply to the person—the authorised psychiatrist must confirm the order. (3) If the authorised psychiatrist confirms an involuntary treatment order under sub- section (2)(b), he or she may make a community treatment order under section 14 for the person. s. 9 -- 17 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 15 (4) If the authorised psychiatrist confirms the involuntary treatment order under sub- section (2)(b) but does not make a community treatment order under sub- section (3)— (a) the person is to be detained in the approved mental health service; and (b) if the person is not currently in the approved mental health service, the authorised psychiatrist may take the person, or arrange for the person to be taken, to the approved mental health service. (5) The authorised psychiatrist may confirm an involuntary treatment order without making a community treatment order only if he or she is satisfied that the treatment required for the person cannot be obtained through the making of a community treatment order. (6) A registered medical practitioner who has made a recommendation under section 9 in respect of a person must not examine the person under this section. 12AD. Treatment for involuntary patients (1) An involuntary patient is to be given treatment for his or her mental illness. (2) If an involuntary patient refuses to consent to necessary treatment or is unable to consent to treatment for his or her mental illness, consent in writing may be given by the authorised psychiatrist. Note: In considering whether a person has refused or is unable to consent to treatment, see section 3A. s. 9 -- 18 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 16 12AE. Notification of guardian If a person becomes an involuntary patient, the authorised psychiatrist must ensure that any guardian of the person is notified that the person has become an involuntary patient and the grounds for the person becoming an involuntary patient.". 10. Continued detention and treatment (1) For section 12A(1) of the Principal Act substitute— "(1) This section applies to a person who is detained in an approved mental health service under an involuntary treatment order that has been confirmed under section 12AC.". (2) In section 12A(2) of the Principal Act, after "authorised psychiatrist" (where secondly occurring) insert ", despite discharging the person from the order under section 37(1),". (3) After section 12D(2) of the Principal Act insert— "(3) A person is discharged from their involuntary treatment order on the making of an application by the chief psychiatrist under sub-section (1) in relation to the person, but the person remains an involuntary patient.". 11. New section 13 substituted For section 13 of the Principal Act substitute— "13. Admission to a general hospital or emergency department (1) An involuntary treatment order may be made for a person who— (a) satisfies the criteria in section 8(1); and s. 10 -- 19 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 17 (b) requires medical treatment which is life-sustaining or to prevent serious physical deterioration and which can only be appropriately provided in a general hospital or emergency department of the general hospital. (2) This Division applies in relation to the making of an involuntary treatment order for a person referred to in sub-section (1) as if a reference in this Division (other than in this section) to an approved mental health service were a reference to the general hospital or emergency department of the general hospital. (3) If an involuntary treatment order is made for a person referred to in sub-section (1), the person is taken to be absent on leave from the appropriate approved mental health service, but section 42 does not apply to the person.". 12. New section 14 substituted and sections 14A to 14E inserted For section 14 of the Principal Act substitute— '14. Community treatment orders (1) At any time, an authorised psychiatrist may make a community treatment order for a person who is subject to an involuntary treatment order if the authorised psychiatrist is satisfied that— (a) the criteria in section 8(1) apply to the person; and (b) the treatment required for the person can be obtained through the making of a community treatment order. s. 12 -- 20 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 18 (2) A community treatment order is an order requiring the person to obtain treatment for their mental illness while not detained in an approved mental health service. (3) A community treatment order— (a) must specify the duration of the order, which must not exceed 12 months; and (b) may specify where the person must live, if this is necessary for the treatment of the person's mental illness. (4) If an authorised psychiatrist makes a community treatment order for a person, the authorised psychiatrist must— (a) inform the person that the order has been made; and (b) give the person a copy of the order; and (c) inform the person of the grounds on which the authorised psychiatrist decided to make the order. (5) On the expiry (other than by revocation) of a community treatment order, or a person's discharge from a community treatment order, the person's involuntary treatment order is taken to expire and, consequently, the person ceases to be an involuntary patient. Note: A community treatment order can be extended under section 14B before its expiry. (6) Despite sub-section (5), the person does not cease to be an involuntary patient if a hospital order or hospital transfer order is made for the person. Note: Section 14E(4) provides that a person is discharged from his or her involuntary treatment order on the making of a hospital order, hospital transfer order, hospital security s. 12 -- 21 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 19 order or restricted hospital transfer order. However, if a hospital order or hospital transfer order is made, the person remains an involuntary patient. If a hospital security order or restricted hospital transfer order is made, the person becomes a security patient. 14A. Monitoring persons on community treatment orders (1) The supervising medical practitioner of a person subject to a community treatment order must assess the person at regular intervals. (2) In assessing the person, the supervising medical practitioner must consider whether— (a) the criteria in section 8(1) still apply to the person; and (b) the treatment required for the person can still be obtained under the order. (3) If the supervising medical practitioner does not consider that— (a) the criteria in section 8(1) still apply to the person; or (b) the treatment required for the person can still be obtained under the order— the supervising medical practitioner must notify the monitoring psychiatrist as soon as practicable. (4) If the supervising medical practitioner notifies the monitoring psychiatrist under sub-section (3), the monitoring psychiatrist must examine the person subject to the order as soon as practicable. s. 12 -- 22 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 20 (5) In this section— "monitoring psychiatrist" of a person subject to a community treatment order, means the monitoring psychiatrist specified in the person's treatment plan; "supervising medical practitioner" of a person subject to a community treatment order, means the supervising medical practitioner specified in the person's treatment plan. 14B. Extension of community treatment orders (1) The authorised psychiatrist may extend a community treatment order for a period not exceeding 12 months if the authorised psychiatrist— (a) examines the person subject to the order; and (b) is satisfied that— (i) the criteria in section 8(1) still apply to the person; and (ii) the treatment required for the person can be obtained through the extension of the order. (2) The extension takes effect from the time the authorised psychiatrist makes the extension. (3) There is no limit to the number of times a community treatment order may be extended under sub-section (1). (4) For the avoidance of doubt, a community treatment order cannot be extended after it has expired. (5) If an authorised psychiatrist extends a person's community treatment order, the authorised psychiatrist must— s. 12 -- 23 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 21 (a) inform the person that the order has been extended; and (b) give the person a copy of the extension; and (c) inform the person of the grounds on which the authorised psychiatrist decided to extend the order. 14C. Variation of community treatment orders (1) The authorised psychiatrist may vary a community treatment order at any time. (2) If the authorised psychiatrist does so, he or she must— (a) inform the person that the order has been varied; and (b) give the person a copy of the order as varied; and (c) inform the person of the grounds on which the authorised psychiatrist decided to vary the order. 14D. Revocation of community treatment orders (1) The authorised psychiatrist may revoke a community treatment order if satisfied on reasonable grounds that— (a) the criteria in section 8(1) still apply to the person subject to the order; and (b) the treatment required for the person cannot be obtained under the order. (2) The authorised psychiatrist may also revoke a community treatment order if— (a) the authorised psychiatrist is satisfied on reasonable grounds that the person subject to the order has not complied s. 12 -- 24 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 22 with the order or the person's treatment plan; and (b) reasonable steps have been taken, without success, to obtain compliance with the order or plan; and (c) the authorised psychiatrist is satisfied on reasonable grounds that there is a significant risk of deterioration in the person's mental or physical condition because of the non-compliance. (3) If the authorised psychiatrist revokes a community treatment order— (a) the authorised psychiatrist must make reasonable efforts to inform the person that the order has been revoked and that the person must go to an approved mental health service; and (b) the person remains an involuntary patient under the person's involuntary treatment order and is taken to be absent without leave from an approved mental health service. Note: Section 43 provides for the apprehension of involuntary patients absent without leave. 14E. Effect of person's detention in custody etc. on involuntary treatment orders and community treatment orders (1) An involuntary treatment order or community treatment order has no effect while a person subject to it is in custody under a sentence of imprisonment or under any order of a court requiring the person to be held in custody. s. 12 -- 25 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 23 (2) A community treatment order to which sub- section (1) applies expires at the time it would otherwise have expired under this Act despite any period during which it has no effect. Note: See section 14(5) for the effect of the expiry of a community treatment order on the person's involuntary treatment order. (3) For the purposes of sub-section (1), a person is in custody if the person is held in— (a) a prison; or (b) a remand centre, youth residential centre or youth training centre (within the meaning of the Children and Young Persons Act 1989); or (c) a police gaol within the meaning of the Corrections Act 1986. (4) A person is discharged from his or her involuntary treatment order and community treatment order (if any) on the making of a hospital order, hospital transfer order, hospital security order or restricted hospital transfer order for the person.'. 13. Persons convicted of offences or in prison (1) For section 15(1) of the Principal Act substitute— "(1) If an order is made under section 36B(2) or 37(4) for a person to be discharged from his or her assessment order or diagnosis, assessment and treatment order, the Board or chief psychiatrist (as the case requires) must immediately notify the court.". (2) In section 15A(2) of the Principal Act, omit "under section 93(1)(d) of the Sentencing Act 1991". s. 13 -- 26 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 24 (3) For section 15A(4) and (5) of the Principal Act substitute— "(4) A restricted community treatment order is an order requiring the person to obtain treatment for their mental illness while not detained in an approved mental health service. (5) A restricted community treatment order must specify— (a) the duration of the order, which must not exceed 12 months; and (b) any conditions that the chief psychiatrist considers appropriate. (5A) If the chief psychiatrist makes a restricted community treatment order for a person, the chief psychiatrist must— (a) inform the person that the order has been made; and (b) give the person a copy of the order; and (c) inform the person of the grounds on which the chief psychiatrist decided to make the order.". (4) In section 15A(9) of the Principal Act, for "section 36(2A)(c)" substitute "section 36D". 14. New section 15AB inserted After section 15A of the Principal Act insert— '15AB. Monitoring persons on restricted community treatment orders (1) The monitoring psychiatrist of a person subject to a restricted community treatment order must assess the person at regular intervals. s. 14 -- 27 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 25 (2) In assessing the person, the monitoring psychiatrist must consider whether— (a) the criteria in section 15A(1) still apply to the person; and (b) the treatment required for the person can still be obtained under the order. (3) If the monitoring psychiatrist does not consider that— (a) the criteria in section 15A(1) still apply to the person; or (b) the treatment required for the person can still be obtained under the order— the monitoring psychiatrist must notify the chief psychiatrist as soon as practicable. (4) If the monitoring psychiatrist notifies the chief psychiatrist under sub-section (3), the chief psychiatrist must examine the person subject to the order as soon as practicable. (5) In this section— "monitoring psychiatrist" of a person subject to a restricted community treatment order, means the monitoring psychiatrist specified in the person's treatment plan.'. 15. New sections 15B and 15C substituted and sections 15D and 15E inserted For sections 15B and 15C of the Principal Act substitute— "15B. Extension of restricted community treatment orders (1) The chief psychiatrist may extend a restricted community treatment order for a s. 15 -- 28 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 26 period not exceeding 12 months if the chief psychiatrist— (a) examines the person subject to the order; and (b) is satisfied that— (i) the criteria in section 15A(1) still apply to the person; and (ii) the treatment required for the person can be obtained through the extension of the order. (2) The extension takes effect from the time the chief psychiatrist makes the extension. (3) There is no limit to the number of times a restricted community treatment order may be extended under sub-section (1). (4) If the chief psychiatrist extends a person's restricted community treatment order, the chief psychiatrist must— (a) inform the person that the order has been extended; and (b) give the person a copy of the extension; and (c) inform the person of the grounds on which the chief psychiatrist decided to extend the order. 15C. Variation of restricted community treatment orders (1) The chief psychiatrist may vary a restricted community treatment order at any time. (2) If the chief psychiatrist does so, the chief psychiatrist must— (a) inform the person that the order has been varied; and s. 15 -- 29 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 27 (b) give the person a copy of the order as varied; and (c) inform the person of the grounds on which the chief psychiatrist decided to vary the order. 15D. Revocation of restricted community treatment orders (1) The chief psychiatrist may revoke a restricted community treatment order if satisfied on reasonable grounds that— (a) the criteria in section 93(1)(b) of the Sentencing Act 1991 apply to the person subject to the order but the criteria in section 15A(1) of this Act do not; or (b) the person subject to the order has failed to comply with the order or the person's treatment plan. (2) If the chief psychiatrist revokes a restricted community treatment order— (a) the chief psychiatrist must make reasonable efforts to inform the person that the order has been revoked and that the person must go to an approved mental health service; and (b) the person remains an involuntary patient under the person's hospital order who is taken to be absent without leave from an approved mental health service. Note: Section 43 provides for the apprehension of involuntary patients absent without leave. s. 15 -- 30 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 28 15E. Effect of person's detention etc. on restricted community treatment orders (1) A hospital order or restricted community treatment order has no effect while a person subject to it is in custody under a sentence of imprisonment or under any order of a court requiring the person to be held in custody. (2) A restricted community treatment order to which sub-section (1) applies expires at the time it would otherwise have expired under this Act despite any period during which it has no effect. (3) For the purposes of sub-section (1), a person is in custody if the person is held in— (a) a prison; or (b) a remand centre, youth residential centre or youth training centre (within the meaning of the Children and Young Persons Act 1989); or (c) a police gaol within the meaning of the Corrections Act 1986.". 16. Transfer of mentally ill prisoners (1) In section 16(1) and (2) of the Principal Act, for "a hospital order" substitute "an order under this section". (2) For section 16(3) of the Principal Act substitute— '(3) The Secretary to the Department of Justice may make either of the following orders under this section— (a) an order under which the person is admitted to and detained in an approved mental health service as an involuntary patient ("hospital transfer order"); s. 16 -- 31 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 29 (b) an order under which the person is admitted to and detained in an approved mental health service as a security patient ("restricted hospital transfer order").'. (3) In section 16(4) of the Principal Act, for "hospital order or a restricted hospital order" substitute "hospital transfer order or restricted hospital transfer order,". 17. Statement of patient's rights In section 18(1) of the Principal Act— (a) for "patient must upon admission to an approved mental health service be given" substitute "person on becoming a patient must be given"; (b) in paragraph (b), for "hospitalization" substitute "treatment and care". 18. New section 19A inserted After section 19 of the Principal Act insert— '19A. Treatment plans (1) The authorised psychiatrist must prepare, review on a regular basis and revise as required, a treatment plan for each patient. (2) In preparing, reviewing and revising a treatment plan for a patient, the authorised psychiatrist must take into account— (a) the wishes of the patient, as far as they can be ascertained; and (b) unless the patient objects, the wishes of any guardian, family member or primary carer who is involved in providing ongoing care or support to the patient; and s. 17 -- 32 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 30 (c) whether the treatment to be carried out is only to promote and maintain the patient's health or well-being; and (d) any beneficial alternative treatments available; and (e) the nature and degree of any significant risks associated with the treatment or any alternative treatment; and (f) any prescribed matters. (3) The treatment plan for a patient who is detained in an approved mental health service must contain an outline of the treatment the patient is to receive. (4) The treatment plan for a patient who is subject to a community treatment order or restricted community treatment order must contain or specify— (a) an outline of the treatment the patient is to receive; and (b) the authorised psychiatrist or delegate of the authorised psychiatrist who is to monitor the patient's treatment ("monitoring psychiatrist"); and (c) the registered medical practitioner who is to supervise the patient's treatment ("supervising medical practitioner"); and (d) the patient's case manager; and (e) the place at which the patient is to receive treatment; and (f) the times at which the patient is required to attend to receive treatment; and s. 18 -- 33 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 31 (g) the intervals at which— (i) for a community treatment order—the supervising medical practitioner must submit a written report concerning the patient's treatment to the monitoring psychiatrist; (ii) for a restricted community treatment order—the monitoring psychiatrist must submit a written report concerning the patient's treatment to the chief psychiatrist. (5) A treatment plan may contain anything else the authorised psychiatrist thinks appropriate. (6) The authorised psychiatrist must— (a) give the patient a copy of the patient's treatment plan and any revisions to it; and (b) discuss the treatment plan with the patient.'. 19. Appeals and reviews (1) For section 22(1)(a) and (b) of the Principal Act substitute— "(a) to hear appeals by or on behalf of involuntary patients and security patients; (b) to review periodically the orders made for involuntary patients and security patients and their treatment plans;". s. 19 -- 34 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 32 (2) For section 29(1) of the Principal Act substitute— "(1) An appeal may be made to the Board at any time— (a) by an involuntary patient— (i) against his or her involuntary treatment order, community treatment order, hospital order, restricted community treatment order, assessment order, diagnosis, assessment and treatment order or hospital transfer order; or (ii) against his or her continued detention under section 12A(4) or 12C; (b) by a security patient against his or her hospital security order or restricted hospital transfer order. (1A) An appeal to the Board may also be made at any time on behalf of an involuntary patient or security patient by a community visitor or any other person who satisfies the Board of a genuine concern for the involuntary patient or security patient.". 20. New sections 30 and 31 substituted For sections 30 and 31 of the Principal Act substitute— "30. Reviews (1) The Board must conduct an initial review of— (a) an involuntary treatment order, hospital order, assessment order, diagnosis, assessment and treatment order or s. 20 -- 35 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 33 hospital transfer order to which an involuntary patient is subject; (b) a hospital security order or restricted hospital transfer order to which a security patient is subject— within 8 weeks after the order is made. (2) The Board must conduct an initial review of the continued detention of an involuntary patient under section 12C within 14 days after the day on which the committee consented under section 12B to the continued detention. (3) The Board must conduct a periodic review of— (a) an involuntary treatment order, hospital order, assessment order, diagnosis, assessment and treatment order or hospital transfer order to which an involuntary patient is subject; (b) a hospital security order or restricted hospital transfer order to which a security patient is subject; (c) the continued detention of an involuntary patient under section 12C— at intervals not exceeding 12 months following the initial review. (4) The Board must conduct a review of the extension of a community treatment order or restricted community treatment order within 8 weeks after the order is extended. (5) The Board must conduct a review of a restricted community treatment order as soon as practicable after receiving a copy of the order under section 15A(6). s. 20 -- 36 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 34 31. Appeals and reviews may be held concurrently The Board may conduct more than one appeal or review (or both) in respect of the same person concurrently.". 21. Further amendments regarding appeals and reviews (1) After section 32(1) of the Principal Act insert— "(1A) The authorised psychiatrist must give a copy of the notice to the patient's case manager as soon as practicable after receiving the notice.". (2) For section 32(2)(c) of the Principal Act substitute— "(c) the legal status under this Act of the person to whom the hearing relates; and". 22. New section 35A inserted After section 35 of the Principal Act insert— "35A. Review of treatment plans (1) On each appeal and review under this Division, the Board must review the patient's treatment plan to determine whether— (a) the authorised psychiatrist has complied with section 19A in making, reviewing or revising the plan (as the case may be); and (b) the plan is capable of being implemented by the approved mental health service. (2) The Board may order the authorised psychiatrist to revise the treatment plan, if the Board is satisfied that— s. 21 -- 37 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 35 (a) the authorised psychiatrist has not complied with section 19A in making, reviewing or revising the plan; or (b) the plan is not capable of being implemented by the approved mental health service.". 23. New section 36 substituted and sections 36A to 36E inserted For section 36 of the Principal Act substitute— "36. Power of Board on appeal or review of involuntary treatment orders—patients who are detained (1) This section applies on an appeal or review for a patient who is detained in an approved mental health service under an involuntary treatment order. (2) If the Board considers that the criteria in section 8(1) do not apply to the patient, the Board must order that the patient be discharged from the involuntary treatment order. (3) If the Board is satisfied that the criteria in section 8(1) apply to the patient, the Board must confirm the involuntary treatment order. (4) If the Board confirms the involuntary treatment order, the Board may order the authorised psychiatrist to make a community treatment order for the patient within a reasonable period specified by the Board, if the Board considers that the treatment required for the person can be obtained through the making of a community treatment order. s. 23 -- 38 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 36 (5) The authorised psychiatrist may apply to the Board, at any time during the period specified under sub-section (4), for the Board to reconsider an order made under that sub- section. (6) Sections 31 to 35 and this section apply to an application under sub-section (5) as if it were a review. Note: The Board must take various factors into consideration in deciding what to do on the appeal or review, including the patient's social circumstances—see section 22(2). 36A. Power of Board on appeal or review of hospital transfer orders (1) This section applies on an appeal or review for a patient who is detained in an approved mental health service under a hospital transfer order. (2) If the Board considers that the continued detention of the patient as an involuntary patient is unnecessary, the Board must order that the patient be discharged from the hospital transfer order and be returned to a prison or other place of confinement (within the meaning of section 16). (3) If the Board considers that the continued detention of the patient as an involuntary patient is necessary, the Board must confirm the hospital transfer order. (4) The Board must have regard to the criteria in section 16(2)(a) and (4) in making a decision on the appeal or review. s. 23 -- 39 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 37 36B. Power of Board on appeal or review of orders under the Sentencing Act 1991— patients who are detained (1) This section applies on an appeal or review for a patient who is detained in an approved mental health service under a hospital order, an assessment order or a diagnosis, assessment and treatment order. (2) If the Board considers that the continued detention of the patient as an involuntary patient is unnecessary, the Board must order that the patient be discharged from the order. (3) If the Board considers that the continued detention of the patient as an involuntary patient is necessary, the Board must confirm the order. (4) The Board must have regard to the criteria in section 90(b), 91(b) or 93(1)(b) of the Sentencing Act 1991 (as the case requires) in making a decision on the appeal or review. 36C. Power of Board on appeal or review for patients on community treatment orders (1) This section applies on an appeal or review for a patient who is subject to a community treatment order. (2) If the Board considers that the criteria in section 8(1) do not apply to the patient, the Board must order that the patient be discharged from the community treatment order. Note: See section 14(5) for the effect of the discharge from a community treatment order on the patient's involuntary treatment order. (3) If the Board is satisfied that the criteria in section 8(1) apply to the patient—the Board may— s. 23 -- 40 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 38 (a) confirm or vary the community treatment order; or (b) revoke the community treatment order if satisfied on reasonable grounds that the treatment required for the patient cannot be obtained under the order. (4) The Board may also revoke a community treatment order if— (a) the Board is satisfied on reasonable grounds that the patient has not complied with the order or the patient's treatment plan; and (b) reasonable steps have been taken, without success, to obtain compliance with the order or plan; and (c) the Board is satisfied on reasonable grounds that there is a significant risk of deterioration in the patient's mental or physical condition because of the non-compliance. (5) If the Board revokes a community treatment order— (a) the Board must make reasonable efforts to inform the patient that the order has been revoked and that the patient must go to an approved mental health service; and (b) the patient remains an involuntary patient under his or her involuntary treatment order and is taken to be absent without leave from an approved mental health service. Note: Section 43 provides for the apprehension of involuntary patients absent without leave. s. 23 -- 41 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 39 (6) If the Board varies a community treatment order, the Board must— (a) inform the person that the order has been varied; and (b) give the person a copy of the order as varied; and (c) inform the person of the grounds on which the Board decided to vary the order. 36D. Power of Board on appeal or review for patients on restricted community treatment orders (1) This section applies on an appeal or review for a patient who is subject to a restricted community treatment order. (2) If the Board considers that neither the criteria in section 93(1)(b) of the Sentencing Act 1991 nor the criteria in section 15A(1) of this Act apply to the patient, the Board must order that the patient be discharged from the restricted community treatment order. Note: See section 37(6) for the effect of the discharge from a restricted community treatment order on the patient's hospital order. (3) If the Board considers that the criteria in section 93(1)(b) of the Sentencing Act 1991 do not apply to the patient but the criteria in section 15A(1) of this Act do apply, the Board may— (a) in the case of a review under section 30(4)—approve the restricted community treatment order; or (b) in any other case—confirm the restricted community treatment order. s. 23 -- 42 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 40 (4) The Board may revoke a restricted community treatment order if satisfied that— (a) the criteria in section 93(1)(b) of the Sentencing Act 1991 apply to the person subject to the order but the criteria in section 15A(1) of this Act do not; or (b) the person subject to the order has failed to comply with the order or the person's treatment plan. (5) If the Board revokes a restricted community treatment order— (a) the Board must make reasonable efforts to inform the patient that the order has been revoked and that the patient must go to an approved mental health service; and (b) the patient remains an involuntary patient under his or her hospital order and is taken to be absent without leave from an approved mental health service. Note: Section 43 provides for the apprehension of involuntary patients absent without leave. (6) On the discharge by the Board of a patient from a restricted community treatment order, the patient is taken to be discharged from his or her hospital order and, consequently, he or she ceases to be an involuntary patient. 36E. Power of Board on appeal or review— continued detention under section 12A(4) or 12C (1) This section applies on an appeal or review for a patient whose detention has been continued under section 12A(4) or 12C. s. 23 -- 43 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 41 (2) If the Board is not satisfied that the continued detention of the patient is necessary, the Board must order that the patient be discharged as an involuntary patient. (3) The Board must have regard to the criteria in section 12A(2) in making a decision on the appeal or review.". 24. New section 37 substituted For section 37 of the Principal Act substitute— "37. Discharge of involuntary patients (1) If the authorised psychiatrist considers that the criteria in section 8(1) do not apply to a person who is detained in the approved mental health service as an involuntary patient under an involuntary treatment order, the authorised psychiatrist must discharge the person from the involuntary treatment order. (2) If the authorised psychiatrist considers that the criteria in section 8(1) do not apply to a person who is receiving treatment from the approved mental health service under a community treatment order, the authorised psychiatrist must discharge the person from the community treatment order. Note: See section 14(5) for the effect of the discharge from a community treatment order on the person's involuntary treatment order. (3) If the chief psychiatrist, having regard to the criteria in section 16(2)(a) and (4), considers that the continued detention of a person in an approved mental health service under a hospital transfer order is unnecessary, the chief psychiatrist must, after advising the Secretary to the Department of Justice, order s. 24 -- 44 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 42 that the person be discharged from the order and be returned to a prison or other place of confinement (within the meaning of section 16). (4) If the chief psychiatrist, having regard to the criteria in section 90(b), 91(b) or 93(1)(b) of the Sentencing Act 1991 (as the case requires), considers that the continued detention of a person in an approved mental health service under an assessment order, a diagnosis, assessment and treatment order or a hospital order is unnecessary, the chief psychiatrist must order that the person be discharged from the order. (5) If the chief psychiatrist considers that neither the criteria in section 93(1)(b) of the Sentencing Act 1991 nor the criteria in section 15A(1) of this Act apply to a person who is subject to a restricted community treatment order, the chief psychiatrist must discharge the person from the restricted community treatment order. (6) On the discharge of a person from a restricted community treatment order, the person is taken to be discharged from his or her hospital order and, consequently, he or she ceases to be an involuntary patient. (7) For the avoidance of doubt, a person who is discharged from an involuntary treatment order under sub-section (1) remains an involuntary patient if the authorised psychiatrist makes an application under section 12A for approval of the continued detention and treatment of the person.". s. 24 -- 45 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 43 25. Consequential amendments (1) In section 38(a) of the Principal Act, for "section 36(3)" substitute "section 36A(2)". (2) For section 39(7) of the Principal Act substitute— "(7) On an appeal under sub-section (5), the Board may— (a) confirm the transfer order; or (b) refuse to confirm the order and, if the patient has already been transferred under the order, direct that the patient be transferred back.". (3) In section 42(4) of the Principal Act, for "32 and 36" substitute "31 to 35". (4) In section 43 of the Principal Act— (a) in sub-section (1)(a), for "section 9" substitute "section 7"; (b) in sub-section (1A), for "Sub-sections (5), (6) and (7) of section 9 apply" substitute "Section 9B applies". (5) In the Principal Act— (a) in section 53— (i) in sub-section (1)(a), for "section 9" substitute "section 7"; (ii) in sub-section (1A), for "Sub-sections (5), (6) and (7) of section 9 apply" substitute "Section 9B applies"; (b) in section 53AD— (i) in sub-section (1)(a), for "section 9" substitute "section 7"; s. 25 -- 46 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 44 (ii) in sub-section (2), for "Sub-sections (5), (6) and (7) of section 9 apply" substitute "Section 9B applies". 26. Interstate provisions (1) In the Principal Act— (a) in section 93A, in the definition of "prescribed person", for "section 9(8)" substitute "section 7"; (b) in section 93E(1) omit ", admitted to"; (c) in section 93E(4), for "Sub-sections (5), (6) and (7) of section 9 apply" substitute "Section 9B applies". (2) For section 93F(1) of the Principal Act substitute— "(1) A person who may be taken to and detained in an interstate mental health facility under a corresponding law may instead be made subject to an involuntary treatment order or community treatment order under this Act and may be taken to an approved mental health service for that purpose.". (3) In the Principal Act— (a) in section 93F(3)— (i) in paragraph (a), omit "admission and"; (ii) in paragraph (b), for "section 9; and" substitute "section 9."; (iii) paragraph (c) is repealed; (b) section 93G(1)(a) is repealed; (c) for section 93G(3)(b) substitute— "(b) otherwise, it must refuse to confirm the transfer order."; s. 26 -- 47 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 45 (d) in section 93G(6), after "facility" insert "or on being made subject to a corresponding order"; (e) for section 93G(7)(a) substitute— "(a) a prescribed person; or"; (f) in section 93G(8), for "Sub-sections (5), (6) and (7) of section 9 apply" substitute "Section 9B applies". (4) After section 93G(8) of the Principal Act insert— "(9) This section does not apply to an involuntary patient who is subject to a hospital transfer order, an assessment order or a diagnosis, assessment and treatment order.". (5) For section 93H(1) of the Principal Act substitute— "(1) A person who is involuntarily detained in an interstate mental health facility under a corresponding law, or who is subject to a corresponding order, may be— (a) transferred to this State in accordance with the corresponding law; and (b) made subject to an involuntary treatment order or community treatment order; and (c) taken to an approved mental health service for that purpose, if necessary to do so.". (6) In the Principal Act— (a) for section 93H(2)(a) substitute— "(a) a prescribed person; or"; s. 26 -- 48 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 46 (b) in section 93H(3)— (i) in paragraph (b), for "section 9; and" substitute "section 9."; (ii) paragraph (c) is repealed; (c) for section 93K(1)(b) substitute— "(b) a prescribed person; or"; (d) in section 93K(4), for "Sub-sections (5), (6) and (7) of section 9 apply" substitute "Section 9B applies"; (e) in section 93K(5) omit "admitted to and"; (f) at the foot of section 93K(5) insert— "Note: A person detained under sub-section (5) is an involuntary patient (see section 3(1)) and is to be treated for his or her mental illness (see section 12AD)."; (g) for section 93L(b) substitute— "(b) a prescribed person; or". 27. Further consequential amendments (1) In section 96(5) of the Principal Act, for "section 12" substitute "section 12AC". (2) For section 106AB(1) of the Principal Act substitute— "(1) Despite anything to the contrary in Division 2 of Part 3, the chief psychiatrist, by written notice, may direct that a person be made subject to an involuntary treatment order under section 12AA.". (3) In section 106AB(3) of the Principal Act, for "Section 12 applies" substitute "Sections 12AA to 12AC apply". s. 27 -- 49 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 47 (4) For section 121(1) of the Principal Act substitute— "(1) If it appears that any document relating to a person becoming an involuntary patient is in any respect incorrect or defective, the person who signed the document may amend it within 21 days after the person to whom it relates becomes an involuntary patient.". (5) In the Principal Act— (a) in section 121— (i) in sub-section (2), for "the admission of an involuntary patient" substitute "a person becoming an involuntary patient"; (ii) in sub-section (3), for "on which an involuntary patient has been admitted to an approved mental health service" substitute "relating to a person becoming an involuntary patient"; (b) in section 123— (i) in sub-section (1), after "in connection with" insert "the making of an involuntary treatment order or"; (ii) in sub-section (2), after "A person may be" insert "made subject to an involuntary treatment order or"; (c) in section 124(1), 125 and 126(1) and (2), after "in connection with" insert "the making of an involuntary treatment order or"; s. 27 -- 50 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 48 (d) for section 132(1)(a) substitute— "(a) the person is absent from an approved mental health service in accordance with section 40 or 41 or is subject to a community treatment order or restricted community treatment order; or". 28. Transitional provisions At the end of section 149 of the Principal Act insert— '(2) A person who, immediately before the commencement day, was detained in an approved mental health service under section 12 (as in force at that time) is to be taken, on and after the commencement day, to have been placed on an involuntary treatment order at the time the person was admitted to the approved mental health service. (3) A person who, immediately before the commencement day, was subject to a hospital order made under section 16(3)(a) (as in force at that time) is taken, on and after the commencement day, to be subject to a hospital transfer order under section 16(3)(a) as substituted by section 16(2) of the amending Act. (4) A person who, immediately before the commencement day, was subject to a restricted hospital order made under section 16(3)(b) (as in force at that time) is taken, on and after the commencement day, to be subject to a restricted hospital transfer order under section 16(3)(b) as substituted by section 16(2) of the amending Act. s. 28 -- 51 of 61 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments Relating to Involuntary Patients Mental Health (Amendment) Act 2003 Act No. 76/2003 49 (5) A reference in any instrument to a hospital order made under section 16(3)(a) or a restricted hospital order made under section 16(3)(b) is taken, in relation to anything occurring on or after the commencement day, to be a reference respectively to a hospital transfer order or restricted hospital transfer order. (6) Section 19A (treatment plans) applies in respect of a patient, whether he or she became a patient before, on or after the commencement day and, if he or she became a patient before the commencement day, the treatment plan must be prepared within 6 months after that day. (7) For the period of 6 months after the commencement day, section 35A (review of treatment plans) does not apply on an appeal or review for a person who became a patient before the commencement day unless a treatment plan has been prepared for the patient. (8) In this section— "amending Act" means the Mental Health (Amendment) Act 2003; "commencement day" means the day on which section 28 of the amending Act comes into operation.'. __________________ s. 28 -- 52 of 61 -- Victorian Legislation and Parliamentary Documents Part 3—Confidentiality and Other Amendments Mental Health (Amendment) Act 2003 Act No. 76/2003 50 PART 3—CONFIDENTIALITY AND OTHER AMENDMENTS 29. Definition In section 3(1) of the Principal Act, for the definition of "approved mental health service" substitute— ' "approved mental health service" means premises or a service— (a) proclaimed to be an approved mental health service under section 94, including the Victorian Institute of Forensic Mental Health; or (b) declared to be an approved mental health service under section 94A;'. 30. Secrecy provision—staff of Boards In the Principal Act— (a) in section 35(1)(a), after "Board" insert "or member of staff of the Board"; (b) in section 63(1)(a), after "Board" insert "or a person employed or engaged to assist the Psychosurgery Review Board". 31. Non-psychiatric treatment In section 83(2) of the Principal Act, omit "in writing". 32. New headings in Division 1 of Part 6 (1) For the heading to Division 1 of Part 6 of the Principal Act substitute— "Division 1—Approved Mental Health Services". s. 29 -- 53 of 61 -- Victorian Legislation and Parliamentary Documents Part 3—Confidentiality and Other Amendments Mental Health (Amendment) Act 2003 Act No. 76/2003 51 (2) Insert the following heading to section 94 of the Principal Act— "Proclamation of approved mental health services". 33. New section 94A inserted After section 94 of the Principal Act insert— "94A. Emergency declaration of approved mental health services (1) The Secretary, by notice published in the Government Gazette, may declare— (a) any premises (including part of any building or place) at which treatment is to be provided to patients; or (b) any service through which treatment is to be provided to patients— to be an approved mental health service. (2) The Secretary may make a declaration under sub-section (1) only if he or she is satisfied that an emergency exists and it is impracticable in the circumstances for a proclamation to be made under section 94. (3) A declaration under this section has effect for the period, not exceeding 7 days, stated in the notice of declaration.". 34. New section 95 substituted For section 95 of the Principal Act substitute— "95. Appointment of registered medical practitioners The Secretary may employ or engage as many registered medical practitioners as are necessary for the purposes of this Act.". s. 33 -- 54 of 61 -- Victorian Legislation and Parliamentary Documents Part 3—Confidentiality and Other Amendments Mental Health (Amendment) Act 2003 Act No. 76/2003 52 35. Confidentiality (1) In section 120A(1) of the Principal Act— (a) insert the following definition— ' "public sector mental health service" means— (a) a relevant psychiatric service that is— (i) a public hospital, denominational hospital or privately-operated hospital (within the meaning of the Health Services Act 1988); and (ii) funded by the Secretary; or (b) a relevant psychiatric service that is declared, or to the extent that it is declared, by an Order under sub-section (1A) to be a public sector mental health service;'; (b) in the definition of "relevant person", in paragraph (d), for "employed in" substitute "employed by or on behalf of"; (c) in the definition of "relevant psychiatric service"— (i) after "means" insert "a person or body to the extent that he, she or it provides or operates one or more of"; (ii) in paragraph (g), for "community health service" substitute "community health centre". s. 35 -- 55 of 61 -- Victorian Legislation and Parliamentary Documents Part 3—Confidentiality and Other Amendments Mental Health (Amendment) Act 2003 Act No. 76/2003 53 (2) After section 120A(1) of the Principal Act insert— "(1A) The Governor in Council may, by Order published in the Government Gazette, declare a relevant psychiatric service to be, either wholly or to the extent specified in the Order, a public sector mental health service.". (3) In section 120A(2) of the Principal Act, for "patient in" substitute "patient of". (4) After section 120A(2A) of the Principal Act insert— "(2B) Sub-section (2) does not apply to a person (other than an independent contractor) who is a relevant person in relation to a relevant psychiatric service who gives information in accordance with HPP2 of the Health Privacy Principles in the Health Records Act 2001 to another person (other than an independent contractor) who is a relevant person in relation to that relevant psychiatric service.". (5) In section 120A(3) of the Principal Act— (a) in paragraph (c), for "patient in" substitute "patient of"; (b) for paragraph (e)(ii) substitute— "(ii) subject to the regulations (if any), by a person engaged or employed by or on behalf of a public sector mental health service by means of an electronic records system established and maintained by the Secretary for the purpose of enabling the sharing of information between public sector mental health services for the treatment of persons with a mental disorder at any time; or"; s. 35 -- 56 of 61 -- Victorian Legislation and Parliamentary Documents Part 3—Confidentiality and Other Amendments Mental Health (Amendment) Act 2003 Act No. 76/2003 54 (c) in paragraph (eb), for "services by, on behalf of or at" substitute "services by or on behalf of". (6) In section 120A(3B) of the Principal Act— (a) in paragraph (a)— (i) in sub-paragraph (i), for "an approved mental health service" substitute "a public sector mental health service"; (ii) in sub-paragraph (ii), for "at or by that approved mental health service" substitute "by that public sector mental health service"; (b) after paragraph (a) insert— "(ab) the use is by a person referred to in paragraph (a)(i) of information collected in accordance with paragraph (a), being a use that is— (i) necessary for the performance of the person's duties or functions with the public sector mental health service; and (ii) in accordance with HPP2 of the Health Privacy Principles in the Health Records Act 2001; or (ac) the use is by the Secretary of information collected in accordance with sub-section (3)(e)(ii), being a use that is— (i) necessary for the performance of the duties, powers or functions of the Secretary under this Act; and (ii) in accordance with HPP2 of the Health Privacy Principles in the Health Records Act 2001; or". s. 35 -- 57 of 61 -- Victorian Legislation and Parliamentary Documents Part 3—Confidentiality and Other Amendments Mental Health (Amendment) Act 2003 Act No. 76/2003 55 36. New section 149 inserted After section 148 of the Principal Act insert— "149. Transitional provisions—Mental Health (Amendment) Act 2003 Clause 2(1)(a) of Schedule 3, as in force immediately before the commencement of section 37(3)(b) of the Mental Health (Amendment) Act 2003, continues to apply with respect to the person appointed as a member of the Psychosurgery Review Board under that clause until the expiry of that person's current term of membership.". 37. Membership and procedure of Boards (1) In Schedule 1 to the Principal Act, for clause 2(1)(b) substitute— "(b) holds office for the term, not exceeding 5 years, specified in his or her instrument of appointment; and". (2) In Schedule 2 to the Principal Act, for clause 1(1A)(a)(ii) and (iii) substitute— "(ii) a review under section 30(3) (periodic review); or (iii) a review under section 30(4) of the extension of a community treatment order—". (3) In the Principal Act— (a) in clause 1(2)(a) of Schedule 2, for "barrister and solicitor of the Supreme Court of not less than eight years' standing" substitute "person who has been admitted to legal practice, whether in Victoria or elsewhere in Australia, for not less than 5 years"; (b) for clause 2(1)(a) of Schedule 3 substitute— "(a) a person who has been admitted to legal practice, whether in Victoria or elsewhere in Australia, for not less than 5 years; and"; s. 36 -- 58 of 61 -- Victorian Legislation and Parliamentary Documents Part 3—Confidentiality and Other Amendments Mental Health (Amendment) Act 2003 Act No. 76/2003 56 (c) for clause 4(1)(a) of Schedule 3 substitute— "(a) holds office for the term, not exceeding 5 years, specified in his or her instrument of appointment; and"; (d) clause 4(2) of Schedule 3 is repealed. __________________ s. 37 -- 59 of 61 -- Victorian Legislation and Parliamentary Documents Part 4—Amendment of Coroners Act 1985 Mental Health (Amendment) Act 2003 Act No. 76/2003 57 PART 4—AMENDMENT OF CORONERS ACT 1985 38. Reportable deaths under the Coroners Act 1985 In section 3(1) of the Coroners Act 1985, in the definition of "reportable death", after paragraph (i) insert— "(iaa) of a person who immediately before death was a patient within the meaning of the Mental Health Act 1986 but was not a person held in care; or". ═══════════════ s. 38 See: Act No. 10257. Reprint No. 4 as at 23 October 2002. LawToday: www.dms. dpc.vic. gov.au -- 60 of 61 -- Victorian Legislation and Parliamentary Documents Mental Health (Amendment) Act 2003 Act No. 76/2003 58 ENDNOTES † Minister's second reading speech— Legislative Assembly: 18 September 2003 Legislative Council: 14 October 2003 The long title for the Bill for this Act was "to amend the Mental Health Act 1986 with respect to involuntary patients, confidentiality and other matters, to amend the Coroners Act 1985 with respect to reportable deaths and for other purposes." Endnotes -- 61 of 61 --