Mental Health Act 2007 No 8

An Act to make provision with respect to the care, treatment and control of mentally ill and mentally disordered persons and other matters relating to mental health; and for other purposes.

This Act is the Mental Health Act 2007 .

This Act commences on a day or days to be appointed by proclamation.

The objects of this Act are—

(a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and

(b) to facilitate the care and treatment of those persons through community care facilities, and

(c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and

(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and

(e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.

See also section 68 which contains principles for care and treatment and section 105 which sets out objectives for the New South Wales public health system.

(1) In this Act—

ambulance officer means a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act.

(b) a medical officer, nominated by the medical superintendent for the purposes of this Act, attached to the mental health facility concerned.

correctional patient has the same meaning as it has in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 .

guardian , in relation to the exercise of any function under this Act by the guardian of a person under guardianship, means a guardian who is able to exercise that function.

(a) a person who is ordered to be detained as an involuntary patient after a mental health inquiry or otherwise by the Tribunal, or

(b) a forensic patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 , or

(a) of a declared mental health facility, means the medical practitioner appointed, under section 111, as medical superintendent of the facility, or

(b) of a private mental health facility, means the medical practitioner appointed, under section 124, as medical superintendent of the facility.

mental health inquiry means an inquiry conducted by the Tribunal under Division 3 of Part 2 of Chapter 3.

mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms—

(a) delusions,

(b) hallucinations,

(c) serious disorder of thought form,

(d) a severe disturbance of mood,

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

parent , of a child, means any person having parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998 ) for the child.

patient means a person who is admitted to a mental health facility in accordance with this Act and who is in the facility following the person’s admission, and includes a person so admitted while absent from the facility either with or without leave of absence.

person under guardianship means a person under guardianship within the meaning of the Guardianship Act 1987 .

private mental health facility means premises subject to a licence under Division 2 of Part 2 of Chapter 5.

(a) the person to whom a person is legally married (including the husband or wife of a person), or

(b) a de facto partner,

(a) a person who has been admitted to a mental health facility under Chapter 2, or

(b) a person who has been re-classified as a voluntary patient under this Act.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2) Notes included in this Act (other than in Schedule 1) do not form part of this Act.

s 4: Am 2007 No 82, Sch 2.9; 2008 No 79, Sch 2 [1] [2]; 2008 No 107, Sch 16 [1] [2]; 2010 No 19, Sch 3.65 [1] [2]; 2013 No 24, Sch 5 [1]; 2014 No 85, Sch 1 [5] [6]; 2018 No 28, Sch 1.20; 2020 No 12, Sch 3.17[1]–[3].

(1) A person may be admitted to a mental health facility as a voluntary patient.

(2) An authorised medical officer may refuse to admit a person to a mental health facility as a voluntary patient if the officer is not satisfied that the person is likely to benefit from care or treatment as a voluntary patient.

(3) A person may be admitted to a mental health facility as a voluntary patient whether or not the person is a mentally ill person or a mentally disordered person.

(1) An authorised medical officer must, as soon as practicable after admitting a person under the age of 16 years as a voluntary patient, take all reasonably practicable steps to notify a parent of the person of the admission.

(2) An authorised medical officer must discharge a person of 14 or 15 years of age who has been admitted as a voluntary patient if a parent of the person objects to the admission to the officer, unless the person elects to continue as a voluntary patient.

(3) A person under the age of 14 years must not be admitted as a voluntary patient if a parent of the person objects to the admission to an authorised medical officer.

(4) An authorised medical officer must discharge a person under the age of 14 years who has been admitted as a voluntary patient if a parent of the person requests that the person be discharged.

(1) A person under guardianship may be admitted to a mental health facility as a voluntary patient if the guardian of the person makes a request to an authorised medical officer.

(2) A person under guardianship must not be admitted as a voluntary patient if the person’s guardian objects to the admission to the authorised medical officer.

(3) An authorised medical officer must discharge a person under guardianship who has been admitted as a voluntary patient if the person’s guardian requests that the person be discharged.

(1) An authorised medical officer may discharge a voluntary patient at any time if the officer is of the opinion that the patient is not likely to benefit from further care or treatment as a voluntary patient.

(2) A voluntary patient may discharge himself or herself from or leave a mental health facility at any time.

(3) An authorised medical officer must give notice of the discharge of a voluntary patient who is a person under guardianship to the person’s guardian.

Section 79 provides for appropriate information relating to follow-up care to be provided to patients being discharged.

(1) The Tribunal must review, at least once every 12 months, the case of each voluntary patient who has been receiving care or treatment, or both, whether in a voluntary or involuntary capacity in a mental health facility for a continuous period of more than 12 months.

(2) In addition to any other matters it considers on a review, the Tribunal is to consider whether the patient consents to continue as a voluntary patient and whether the patient is likely to benefit from further care or treatment as a voluntary patient.

(3) The Tribunal may on a review order the discharge of the patient from the mental health facility.

(4) The Tribunal may defer the operation of an order for the discharge of a patient for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.

(5) The medical superintendent of a mental health facility must notify the Tribunal of the name of any voluntary patient whose case the Tribunal is required to review.

(1) An authorised medical officer may cause a voluntary patient to be detained in a mental health facility under Part 2 of Chapter 3 if the officer considers the person to be a mentally ill person or a mentally disordered person.

(2) Any such patient is taken to have been detained in the facility under section 19 when the authorised medical officer takes action to detain the patient.

(3) A voluntary patient in a mental health facility may be detained for a period of up to 2 hours for the purpose of enabling an authorised medical officer to exercise the officer’s functions under this section.

11 Review of decisions made by authorised medical officer to refuse admission or discharge voluntary patient

(1) This section applies to a decision made under this Chapter by an authorised medical officer (other than a medical superintendent) to refuse a person admission to a mental health facility as a voluntary patient or to discharge a person as a voluntary patient.

(2) The person affected by a decision may apply to the medical superintendent for a review of the decision.

(3) The medical superintendent must review a decision as soon as practicable after receiving an application for its review and may confirm the decision, admit or discharge the person as a voluntary patient or take any other action under this Act that the medical superintendent thinks fit.

(1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that—

(b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

(2) If an authorised medical officer is not of that opinion about a patient or other person at a mental health facility, the officer must refuse to detain, and must not continue to detain, the person.

(3) An authorised medical officer may, immediately on discharging a patient or person who has been detained in a mental health facility, admit that person as a voluntary patient.

A person is a mentally ill person or a mentally disordered person for the purpose of—

(a) the involuntary admission of the person to a mental health facility or the detention of the person in a facility under this Act, or

(b) determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a mental health facility,

(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary—

(b) for the protection of others from serious harm.

(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary—

(b) for the protection of others from serious physical harm.

(1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following—

(a) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief,

(b) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief,

(c) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy,

(d) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation,

(e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity,

(f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity,

(g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity,

(h) the person engages in or has engaged in immoral conduct,

(i) the person engages in or has engaged in illegal conduct,

(j) the person has an intellectual disability or developmental disability,

(k) the person takes or has taken alcohol or any other drug,

(l) the person engages in or has engaged in anti-social behaviour,

(m) the person has a particular economic or social status or is a member of a particular cultural or racial group.

(2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind.

In this Part—

assessable person means a person detained in a declared mental health facility for whom a mental health inquiry is required to be held under this Part.

(1) A person may be detained in a declared mental health facility in the following circumstances—

(a) on a mental health certificate given by a medical practitioner or accredited person (see section 19),

(b) after being brought to the facility by an ambulance officer (see section 20),

(c) after being apprehended by a police officer (see section 22),

(d) after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23),

(e) on the order of a Magistrate or bail officer (see section 24),

(f) after a transfer from another health facility (see section 25),

(g) on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26).

(2) A person may be detained, under a provision of this Part, in a health facility that is not a declared mental health facility if it is necessary to do so to provide medical treatment or care to the person for a condition or illness other than a mental illness or other mental condition.

(3) In this Act, a reference to taking to and detaining in a mental health facility includes, in relation to a person who is at a mental health facility, but not detained in the mental health facility in accordance with this Act, the detaining of the person in the mental health facility.

A person taken to and detained in a mental health facility must be provided with certain information, including a statement of the person’s rights (see section 74).

A person authorised to be taken to and detained in a mental health facility under this Division may be taken to the facility by a person listed in section 81.

(1) A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1.

(2) A mental health certificate may be given about a person only if the medical practitioner or accredited person—

(a) has personally examined or observed the person’s condition immediately before or shortly before completing the certificate, and

(b) is of the opinion that the person is a mentally ill person or a mentally disordered person, and

(c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary, and

(d) is not a designated carer, the principal care provider or a near relative of the person.

(3) A mental health certificate may contain a police assistance endorsement that police assistance is required if the person giving the certificate is of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer. The endorsement is to be in the form set out in Part 2 of Schedule 1.

(4) A mental health certificate may not be used to admit or detain a person in a facility—

(a) in the case of a person certified to be a mentally ill person, more than 5 days after it is given, or

(b) in the case of a person certified to be a mentally disordered person, more than one day after it is given.

(5) In this section—

near relative of a person means a parent, brother, sister, child or spouse of the person and any other person prescribed for the purposes of this definition.

(1) A medical practitioner or accredited person may examine or observe a person’s condition using an audio visual link for the purpose of determining whether to issue a mental health certificate if it is not reasonably practicable for a medical practitioner or accredited person to personally examine or observe the person for that purpose.

(2) A medical practitioner or accredited person must not carry out an examination or observation using an audio visual link unless the medical practitioner or accredited person is satisfied that the examination or observation can be carried out in those circumstances with sufficient skill and care so as to form the required opinion about the person.

(3) The regulations may make provision for or with respect to the audio visual link technology that may be used for the purposes of this section and the medical practitioners who may examine or observe a person for the purposes of this section.

(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

(1) A police officer to whose notice a police assistance endorsement on a mental health certificate, or a request for assistance by an ambulance officer under this Division, is brought must, if practicable—

(a) apprehend and take or assist in taking the person the subject of the certificate or request to a declared mental health facility, or

(b) cause or make arrangements for some other police officer to do so.

(2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.

(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that—

(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

(2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

(1) A Magistrate or authorised officer may, by order, authorise a medical practitioner or accredited person to visit and to personally examine or personally observe a person to ascertain whether a mental health certificate should be issued for the person.

(2) An order may be made if the Magistrate or officer is satisfied, by evidence on oath, that—

(b) because of physical inaccessibility, the person could not otherwise be personally examined or personally observed.

(3) The order may also authorise any other person (including a police officer) who may be required to assist the medical practitioner or accredited person to accompany the medical practitioner or accredited person.

(4) A person authorised to visit a person or accompany another person may enter premises, if need be by force, in order to enable the examination or observation to be carried out.

(5) A person who is examined or observed under this section may be detained in accordance with section 19.

(6) A person who takes action under an order must, as soon as practicable after taking the action, notify the person who made the order in writing of the action.

(7) In this section—

authorised officer means an authorised officer within the meaning of the Criminal Procedure Act 1986 .

A person may be taken to and detained in a declared mental health facility in accordance with an order made under Division 3 of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 .

(1) A person may be transferred from a health facility to a declared mental health facility and detained in the mental health facility if a medical officer of the health facility, or the authorised medical officer of the mental health facility, considers the person to be a mentally ill person or a mentally disordered person.

(2) Any such person is taken to have been detained in the declared mental health facility under section 19 when the person is transferred to the facility.

(1) A person may be detained in a declared mental health facility on a written request made to the authorised medical officer by a designated carer, the principal care provider or a relative or friend of the person.

(2) An authorised medical officer must not detain any such person unless the officer is satisfied that, because of the distance required in order for the person to be examined and the urgency of the circumstances, it is not reasonably practicable to have the person detained on the basis of a mental health certificate.

(1) The following steps must be taken in relation to a person who is detained in a mental health facility under this Division—

An authorised medical officer must examine the person as soon as practicable (but not later than 12 hours) after the person arrives at the facility or after the person is detained after being a voluntary patient.

The person must not be detained after the examination unless the officer certifies that, in the officer’s opinion, the person is a mentally ill person or a mentally disordered person.

The authorised medical officer must cause the person to be examined by another medical practitioner as soon as possible after giving the certificate in step 1. The second examiner must be a psychiatrist if the authorised medical officer is not a psychiatrist.

The second examiner must notify the authorised medical officer if of the opinion that the person is a mentally ill person or a mentally disordered person or if not able to form such an opinion.

(c) Step 3 Examination by third medical practitioner if second examiner does not find person to be mentally ill or mentally disordered

If the second examiner is not of the opinion that the person is a mentally ill person or a mentally disordered person, the authorised medical officer must cause the person to be examined by a medical practitioner who is a psychiatrist, as soon as practicable after being notified of that opinion.

The third examiner must notify the authorised medical officer if of the opinion that the person is a mentally ill person or a mentally disordered person.

An authorised medical officer must notify the Tribunal and bring the person before the Tribunal for a mental health inquiry if—

(i) the person is found to be a mentally ill person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person or a mentally disordered person on examination in step 2 or step 3, or

(ii) the person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person on examination in step 2 or step 3.

The person must be brought before the Tribunal as soon as practicable after admission (subject to meeting the requirements set out above).

If the third examiner does not find that the person is a mentally ill person or a mentally disordered person, the person must not be detained after the third examination.

If a person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and is found to be a mentally disordered person on examination in step 2 or step 3, the person may be detained in the mental health facility as a mentally disordered person.

(2) Any certification under subsection (1) (a) or notification under subsection (1) (b) or (c) of the opinion that a person is, after an examination under this section or section 27A, a mentally ill person or a mentally disordered person, is to be in the form prescribed by the regulations.

(3) Any form used for the purposes of this section or section 27A (as in force immediately before the commencement of this subsection) is, until such time as a form is prescribed for the purposes of subsection (2), taken to be the form so prescribed.

(1) If it is not reasonably practicable for an authorised medical officer of a mental health facility or other medical practitioner to personally examine a person or observe the person’s condition for the purpose of determining under section 27 whether the person is a mentally ill person or a mentally disordered person, the person may be examined or observed for that purpose—

(b) by an accredited person authorised by the medical superintendent of the mental health facility to examine or observe the person or observe for that purpose—

(ii) using an audio visual link.

(2) The examination or observation must be carried out by a medical practitioner who is a psychiatrist if that is a requirement of section 27.

(3) A medical practitioner or accredited person must not carry out an examination or observation using an audio visual link under this section unless the medical practitioner or accredited person is satisfied that the examination or observation can be carried out in the circumstances with sufficient skill and care so as to form the required opinion about the person.

(4) A medical practitioner who is not a psychiatrist, or an accredited person, who examines or observes a person under this section must, if it is reasonably practicable to do so, seek the advice of a psychiatrist before making a determination as to whether the person is a mentally ill person or a mentally disordered person. The psychiatrist is not required to examine or observe the person.

(5) The regulations may make provision for or with respect to the audio visual link technology that may be used for the purposes of this section and the medical practitioners who may examine or observe a person for the purposes of this section.

(1) An authorised medical officer or other medical practitioner or accredited person who examines a person detained in a mental health facility under this Division may take into account his or her own observations and any other available evidence that he or she considers reliable and relevant in forming an opinion as to whether the person is a mentally ill person or a mentally disordered person.

(2) A medical practitioner or accredited person on whose certificate or request a person has been admitted to a mental health facility must not examine the person under section 27 or 27A.

If an authorised medical officer of a mental health facility becomes aware that a person detained in the mental health facility under this Division is a forensic patient, the officer is, as soon as is reasonably practicable, to notify the Tribunal.

A person who authorises the administration of any medication to a person detained in a mental health facility under this Division—

(b) must prescribe the minimum medication, consistent with proper care, to ensure that the person is not prevented from communicating adequately with any other person who may be engaged to represent the person at a mental health inquiry.

An authorised medical officer may classify an assessable person as a voluntary patient at any time before a mental health inquiry is held about the person, but only if—

(a) the authorised medical officer is of the opinion that the person is likely to benefit from care or treatment as a voluntary patient, and

(b) the patient agrees to be so classified or, if the person is a person under guardianship or is under the age of 14 years, the person is admitted in accordance with the procedures under this Act applicable to admitting any such person as a voluntary patient.

(1) A person detained as a mentally disordered person under step 5 in section 27 (e) must not be detained in a mental health facility for a continuous period of more than 3 days (not including weekends and public holidays).

(2) If an authorised medical officer of a mental health facility is of the opinion that an assessable person has ceased to be a mentally ill person but is a mentally disordered person, the person must not be further detained in the facility for a continuous period of more than 3 days (not including weekends and public holidays).

(3) An authorised medical officer must examine a mentally disordered person detained in a mental health facility at least once every 24 hours.

(4) The person must not be further detained in the mental health facility if, on any such examination, the authorised medical officer is of the opinion that the person is not a mentally disordered person or a mentally ill person or that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

(5) A person must not be admitted to and detained in a mental health facility on the grounds that the person is a mentally disordered person on more than 3 occasions in any 1 calendar month.

(1) This section applies to a person detained in a mental health facility under this Part who is required not to be detained or further detained in the facility and who was taken to the facility—

(a) by a police officer under this Division after being apprehended by a police officer because the officer believed the person to be committing or to have recently committed an offence, or

(b) on the order of a Magistrate or an authorised officer under Division 3 of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 .

(2) An authorised medical officer must release the person into the custody of any relevant person who is present at the mental health facility to ascertain the results of any examination or examinations of the person.

(3) If a relevant person is not so present when the authorised medical officer becomes aware that the person must not be detained or further detained, the authorised medical officer must, as soon as practicable, notify a police officer at the appropriate police station that the person will not be further detained.

(4) The authorised medical officer may take any of the following actions in relation to a person (other than a person referred to in subsection (5)), after considering any matter communicated by a police officer as to the intended apprehension of the person by a police officer—

(a) detain the person for a period not exceeding 2 hours pending the person’s apprehension by a police officer,

(b) admit the person in accordance with this Act as a voluntary patient,

(c) discharge the person, in so far as it may be possible to do so, into the care of a designated carer or the principal care provider of the person,

(d) discharge the person.

(5) If the person is a person ordered to be brought back before a court under section 19(b) or 21(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 —

(a) it is the duty of the police officer notified by the authorised medical officer to ensure that a police officer attends the mental health facility and apprehends the person as soon as practicable after notification, and

(b) the authorised medical officer must detain the person pending the person’s apprehension by a police officer.

(6) A police officer may apprehend a person under this section without a warrant.

(7) In subsections (2) and (3)—

(a) if the detained person was taken to the mental health facility on an order under Division 3 of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 , any person (including a police officer) charged by the order with taking the person from the facility, or

(b) in any other case, a police officer.

s 32: Am 2008 No 79, Sch 2 [6]; 2009 No 56, Sch 1.25 [1] [2]; 2014 No 85, Sch 1 [18] [19]; 2017 No 44, Sch 1.19; 2020 No 12, Sch 3.17[5] [6].

Despite any other provision of this Act, an authorised medical officer is not required—

(b) to bring a person before the Tribunal for a mental health inquiry,

while the person is suffering from a condition or illness other than a mental illness or other mental condition and is not, in the officer’s opinion, fit to be the subject of the proposed action due to the seriousness of the person’s condition or illness.

(1) The Tribunal must hold an inquiry about an assessable person under step 4 in section 27 (d).

Section 27 sets out the events that result in a mental health inquiry. Notice of the inquiry is to be given to the person concerned, and all reasonably practicable steps are to be taken to notify designated carers and the principal care provider in accordance with section 76.

(2) An authorised medical officer of the mental health facility in which an assessable person is detained—

(a) must ensure that, as far as practicable, the person is brought before the Tribunal dressed in street clothes, and

(b) must make all necessary arrangements to ensure that all appropriate medical witnesses appear before the Tribunal and other relevant medical evidence concerning the person is placed before the Tribunal at or before the inquiry, and

(c) as soon as practicable after notifying the Tribunal under section 27 (d), and at or before the inquiry, must provide the Tribunal with all relevant medical reports of the examinations in step 1 or step 2, as referred to in section 27 (d), and any additional information required by the Tribunal for the purposes of the inquiry.

An assessable person, or any other person, may, with the approval of the Tribunal and subject to the regulations (if any), be brought or appear before the Tribunal by way of audio visual link.

Any designated carer or the principal care provider of an assessable person may, with the approval of the Tribunal, appear at an inquiry.

The Tribunal must be constituted by at least one member who is the President or a Deputy President for the purposes of a mental health inquiry (see section 150 (2A)). Other provisions relating to the Tribunal’s procedures generally, that apply to mental health inquiries and other proceedings, are set out in Part 2 of Chapter 6.

(1) The Tribunal when holding a mental health inquiry is to determine whether or not, on the balance of probabilities, the assessable person is a mentally ill person.

(2) For that purpose, the Tribunal is to do the following—

(a) consider the reports and recommendations of the authorised medical officer and other medical practitioners who examined the person under section 27 after the person’s detention,

(b) consider any other information before the Tribunal,

(c) inquire about the administration of any medication to the person and take account of its effect on the person’s ability to communicate,

(d) have due regard to any cultural factors relating to the person that may be relevant to the determination,

(e) have due regard to any evidence given at the inquiry by an expert witness concerning the person’s cultural background and its relevance to any question of mental illness.

(2A) As soon as practicable after the beginning of a mental health inquiry, the Tribunal must ask the assessable person whether the person—

(a) has been given a written statement, in the prescribed form, of the person’s legal rights and other entitlements, as required by section 74, and

(b) has been informed of the duty imposed under section 76 on the authorised medical officer relating to the giving of the notice specified in that section.

(2B) As soon as practicable after the beginning of a mental health inquiry, the Tribunal must ascertain from the authorised medical officer whether the written statement and notice referred to in subsection (2A) have been given or all such things as are reasonably practicable have been done to give that statement or notice, as the case requires.

(3) If the Tribunal is not satisfied, on the balance of probabilities, that an assessable person is a mentally ill person, the Tribunal must order that the person be discharged from the mental health facility.

(4) The Tribunal may defer the operation of an order for the discharge of a person for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the person to do so.

(5) If the Tribunal is satisfied, on the balance of probabilities, that an assessable person is a mentally ill person, the Tribunal may make any of the following orders—

(a) an order that the person be discharged into the care of a designated carer or the principal care provider of the person,

(b) a community treatment order,

(c) an order that the person be detained in or admitted to and detained in a mental health facility for further observation or treatment, or both, as an involuntary patient, for a specified period of up to 3 months, if the Tribunal is of the opinion that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available or that for any other reason it is not appropriate to make any other order under this subsection.

s 35: Am 2008 No 79, Sch 2 [7]; 2008 No 107, Sch 16 [7]–[12]; 2014 No 85, Sch 1 [22]; 2022 No 41, Sch 6[3].

(1) The Tribunal may, from time to time, adjourn a mental health inquiry for a period not exceeding 14 days.

(2) Without limiting subsection (1), the Tribunal may adjourn the inquiry if it is not satisfied—

(a) that the assessable person has been informed of the duty imposed under section 76 on the authorised medical officer relating to the giving of the notice specified in that section, or

(b) that the notice specified in the section has been given or all such things as are reasonably practicable have been done to give that notice.

(3) The Tribunal may adjourn an inquiry under this section only if—

(a) the Tribunal is of the opinion that it is in the best interests of the assessable person to do so, and

(b) the Tribunal has considered any certificates given under this Act available to the Tribunal.

(4) If an inquiry is adjourned, the assessable person is to continue to be detained in the mental health facility unless the person is discharged or allowed to be absent from the facility under another provision of this Act.

(1) The Tribunal must review the case of each involuntary patient as follows—

(b) at least once every 3 months for the first 12 months the person is an involuntary patient,

(c) at least once every 6 months while the person is an involuntary patient after the first 12 months of detention.

(1A) The Tribunal may review the case of an involuntary patient at such other times as it sees fit.

(2) An authorised medical officer must cause an involuntary patient to be brought before the Tribunal—

(a) as soon as practicable before the end of the initial period of detention, if it appears to the officer that the person should continue to be detained, and

(b) at such other times as may be required by the Tribunal for the purposes of any review under this section.

(3) The authorised medical officer must ensure that, as far as practicable, a person brought before the Tribunal is dressed in street clothes.

(3A) The Tribunal may review the case of an involuntary patient in the absence of the patient if—

(a) the authorised medical officer applies to have the review carried out in the absence of the patient because the patient has refused to attend the review or because the officer is of the opinion that the patient is too unwell to attend the review, and

(b) the Tribunal is satisfied that the patient has refused to attend or is too unwell to attend and is unlikely to be well enough to attend within a reasonable period, and

(c) the Tribunal is satisfied that any representative of the patient (being an Australian legal practitioner, or other person approved by the Tribunal, who is representing the patient for the purposes of the review) has been notified of the review, and

(d) the Tribunal has considered the views (if known) of each of the following—

(ii) any representative of the patient,

(iii) the designated carer of the patient,

(iv) the principal care provider of the patient, and

(e) the Tribunal is of the opinion that carrying out the review in the absence of the patient is desirable for the safety or welfare of the patient.

(4) Despite subsection (1) (c), the Tribunal may review the case of an involuntary patient at intervals of up to 12 months if it is of the opinion that it is appropriate to do so.

(1) The Tribunal is, on a review of an involuntary patient, to determine whether the patient is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available.

(2) For that purpose, the Tribunal is to do the following—

(b) inquire about the administration of any medication to the patient and take account of its effect on the patient’s ability to communicate.

(3) If the Tribunal determines that the patient is not a mentally ill person, the patient must be discharged from the mental health facility in which the patient is detained.

(4) If the Tribunal determines that the patient is a mentally ill person and that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient, the Tribunal must make an order that the patient continue to be detained as an involuntary patient in a mental health facility for further observation or treatment, or both.

(5) In any other case that the Tribunal determines that a patient is a mentally ill person, it must make an order that the patient be discharged from the mental health facility in which the patient is detained and may make any of the following orders—

(a) an order that the patient be discharged into the care of a designated carer or the principal care provider of the person,

(b) a community treatment order.

(6) The Tribunal may defer the operation of an order for the discharge of a patient for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.

(7) An order made by the Tribunal under this section is to be in the form approved by the President.

(1) An authorised medical officer must medically examine each involuntary patient of the mental health facility, or cause each involuntary patient to be medically examined, to determine whether the patient’s continued detention in the facility is necessary.

(2) The medical examinations are to be carried out at intervals of not more than 3 months.

(1) An involuntary patient may be classified as a voluntary patient of the mental health facility in which the patient is detained—

(b) by the Tribunal when conducting a review of the patient.

(2) A patient may be so classified only if—

(a) the authorised medical officer or Tribunal is of the opinion that the patient is likely to benefit from care or treatment as a voluntary patient, and

(b) the patient agrees to be so classified or, if the patient is a person under guardianship, the patient is admitted in accordance with the procedures under this Act applicable to admitting such persons as voluntary patients.

(3) Without limiting subsection (1), a person who is discharged as an involuntary patient may be admitted as a voluntary patient immediately on discharge.

For additional circumstances when a patient or person must be released from a mental health facility, see section 12.

(1) An authorised medical officer must discharge a patient or person who is detained in a mental health facility when a community treatment order is made about the patient or person and any order authorising the patient’s or person’s detention ceases to have effect.

(2) This section does not prevent an affected person subject to a community treatment order from being admitted to or detained in a mental health facility.

(3) This section is subject to any order made under section 53 deferring the discharge of an involuntary patient.

(1) An involuntary patient of a mental health facility or another person detained in a mental health facility may make an application to the authorised medical officer to be discharged.

(2) The authorised medical officer may discharge the patient or person.

(1) Any designated carer or the principal care provider of an involuntary patient or another person detained in a mental health facility may, at any time, apply to an authorised medical officer of the mental health facility for the discharge of the patient or person.

(2) The authorised medical officer may discharge the patient or person if—

(a) the applicant gives the authorised medical officer a written undertaking that the patient or person will be properly taken care of, and

(b) the authorised medical officer is satisfied that adequate measures will, so far as is reasonably practicable, be taken to prevent the patient or person from causing harm to himself or herself or others.

An authorised medical officer of a mental health facility must, as soon as is reasonably practicable, notify the Tribunal of the discharge of a person detained in the mental health facility whom the officer knows is a forensic patient.

(1) An involuntary patient or person detained at a mental health facility (the applicant ) who applies to be discharged, or a person who applies for the discharge of the applicant, or a person appointed by the applicant, may appeal to the Tribunal if—

(b) the authorised medical officer fails to determine the application within 3 working days after it is made.

(2) An appeal may be made orally or in writing and is to be made in accordance with the regulations.

(3) The authorised medical officer must provide the Tribunal with a report about the applicant, including the officer’s reasons for refusing to discharge the applicant or failing to determine the application.

(4) For the purpose of determining an appeal, the Tribunal has and may exercise the functions of the authorised medical officer with respect to the discharge application and may make an order accordingly.

(5) In addition, the Tribunal may determine that no further right of appeal may be exercised under this section before the date on which the person is next reviewed by the Tribunal under this Act, if it thinks it appropriate to do so, having regard to the following—

(a) the interval between the last determination under this Act that the applicant was a mentally ill person and the date of the appeal,

(b) the frequency of appeals under this section made by or on behalf of the applicant,

(c) the last report about the applicant by the authorised medical officer under this section,

(d) any other matter the Tribunal considers relevant.

(6) The Tribunal may defer the operation of an order under this section for the discharge of a person for a period of up to 14 days, if the Tribunal decides it is in the best interests of the person to do so.

The Tribunal may, on application, make a community treatment order for an involuntary patient or detained person who is the subject of an appeal (see section 51).

(1) An authorised medical officer must review the mental health and welfare of a patient or person detained in a mental health facility under this Act who is absent from the mental health facility with permission if the absence is for a continuous period of more than 28 days.

(2) The authorised medical officer must discharge the patient or person following the review unless the officer is of the opinion that further detention of the patient or person in the facility is necessary.

(3) An authorised medical officer of a mental health facility must discharge a patient or person detained in the facility under this Act who is absent from the mental health facility for a single period exceeding 12 months.

This Division applies to an involuntary patient or a person who is detained in a mental health facility under this Act.

(1) An authorised medical officer may permit a person to be absent from a mental health facility for the period, and on the conditions, that the officer thinks fit.

(2) Permission may be given on compassionate grounds, on the ground that medical treatment is required or on any other ground the authorised medical officer thinks fit.

A person may also be transferred from a mental health facility to another health facility on medical grounds (see section 80).

(3) An authorised medical officer may not grant leave of absence unless the officer is satisfied that, as far as is practicable, adequate measures have been taken to prevent the person concerned from causing harm to himself or herself or others.

(1) An authorised medical officer of a mental health facility may apprehend a person, or direct a person to be apprehended, if—

(a) the person fails to return to the facility on or before the expiry of a permitted period of absence granted under this Part or fails to comply with a condition of the permission, or

(b) the person absents himself or herself from the facility otherwise than in accordance with this Act.

(2) The person may be apprehended by any of the following persons—

(a) an authorised medical officer or any other suitably qualified person employed at the mental health facility,

(b) a police officer,

(c) a person authorised by the Minister or the authorised medical officer,

(d) a person assisting a person referred to in paragraph (a), (b) or (c).

(3) A person who is apprehended is to be conveyed to and detained in the mental health facility from which the person absented himself or herself (whether directly or indirectly by way of another mental health facility).

(1) An authorised medical officer may request that a police officer apprehend, or assist in apprehending, a person under this Division if the officer is of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

(2) A police officer to whose notice any such request is brought may—

(a) apprehend and take or assist in taking the person to the mental health facility from which the person absented himself or herself, or

(b) cause or make arrangements for some other police officer to do so.

(3) A police officer may enter premises to apprehend a person under this section or section 48, and may apprehend any such person, without a warrant and may exercise any powers conferred under section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.

In this Part—

director of community treatment of a mental health facility means a person appointed under section 113 as the director of community treatment of the mental health facility.

psychiatric case manager means a person employed at a declared mental health facility who is appointed under section 114 as the psychiatric case manager of an affected person.

(1) A community treatment order authorising the compulsory treatment in the community of a person may be made by the Tribunal.

(2) The following persons may apply for a community treatment order for the treatment of a person—

(a) the authorised medical officer of a mental health facility in which the affected person is detained or is a patient under this Act,

(b) a medical practitioner who is familiar with the clinical history of the affected person,

(c) any other person prescribed by the regulations.

(3) An application may be made about a person who is detained in or a patient in a mental health facility or a person who is not in a mental health facility.

(4) An application may be made about a person who is subject to a current community treatment order.

(5) A community treatment order may be made in the following circumstances and may replace an existing order—

(b) on a review of a patient by the Tribunal,

(c) on an application otherwise being made to the Tribunal.

(6) Without limiting subsection (5) (c), an application for a community treatment order may be made, and determined by the Tribunal, in the same proceedings as an appeal under section 44.

(1) The applicant for a community treatment order must notify the affected person in writing of the application.

(2) The notice of the application is to include a copy of the proposed treatment plan for the affected person.

(3) If the affected person is not detained in a mental health facility, the application must be heard not earlier than 14 days after the notice is given to the affected person.

(4) Subsection (3) does not apply—

(a) to an application for a further community treatment order in respect of an affected person who was the subject of a current community treatment order when the notice was given, or

(b) if the Tribunal decides it is in the best interests of the affected person that the application be heard earlier than 14 days after the notice is given.

(5) As soon as practicable after becoming aware of the application, the director of community treatment of the declared mental health facility at which the treatment plan is proposed to be implemented must take all reasonably practicable steps to give written notice of the application to—

(b) the principal care provider of the affected person, if the principal care provider is not a designated carer.

s 52: Am 2008 No 79, Sch 2 [10]; 2009 No 15, Sch 1.6 [1]; 2014 No 85, Sch 1 [28]; 2024 No 22, Sch 6[1] [2].

(1) The Tribunal is, on an application for a community treatment order, to determine whether the affected person is a person who should be subject to the order.

(2) For that purpose, the Tribunal is to consider the following—

(a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order,

(b) if the affected person is subject to an existing community treatment order, a report by the psychiatric case manager of the person as to the efficacy of that order,

(c) a report as to the efficacy of any previous community treatment order for the affected person,

(d) any other information placed before the Tribunal.

(3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that—

(a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and

(b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and

(c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment.

(3A) If the affected person has within the last 12 months been a forensic patient or the subject of a community treatment order, the Tribunal is not required to make a determination under subsection (3) (c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted.

(4) The Tribunal may not make a community treatment order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person.

(5) For the purposes of this section, a person has a previous history of refusing to accept appropriate treatment if the following are satisfied—

(b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness,

(c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission),

(d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person.

(6) The Tribunal must not specify a period longer than 12 months as the period for which a community treatment order is in force.

(7) In determining the duration of a community treatment order, the Tribunal must take into account the estimated time required—

(b) to establish, or re-establish, a therapeutic relationship between the person and the person’s psychiatric case manager.

(8) The Tribunal may order that the discharge of an involuntary patient for whom a community treatment order is made be deferred for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.

s 53: Am 2008 No 79, Sch 2 [11] [12] (am 2008 No 107, Sch 18); 2008 No 107, Sch 16 [15]–[18]; 2010 No 96, Sch 1 [4]; 2014 No 85, Sch 1 [29].

A treatment plan for an affected person is to consist of the following—

(a) in general terms, an outline of the proposed treatment, counselling, management, rehabilitation or other services to be provided to implement the community treatment order,

(b) in specific terms, the method by which, the frequency with which, and the place at which, the services would be provided for that purpose.

The Tribunal may make a community treatment order in the absence of the affected person, if the person has been given notice of the application under this Part.

(1) A community treatment order is to—

(a) nominate the declared mental health facility that is to implement the treatment plan for the affected person, and

(b) require the affected person to be present, at the reasonable times and places specified in the order to receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan.

(2) A community treatment order ceases to have effect at the end of the period specified in the order or, if no period is specified, 12 months after the order is made.

(3) A community treatment order has no effect while an affected person is detained in a mental health facility (otherwise than under this Part), or is a voluntary patient.

(4) The fact that an affected person is the subject of proceedings before the Tribunal does not, unless the Tribunal otherwise orders, affect the operation or duration of the community treatment order.

(5) The time for which a community treatment order is in force does not cease to run during any period in which this section provides that it has no effect.

(1) The affected person must comply with the community treatment order.

(2) The director of community treatment of the declared mental health facility implementing a treatment plan under a community treatment order may take all reasonable steps to have medication administered, and services provided, in accordance with the order.

(3) Medication may be administered to an affected person for the purposes of a community treatment order without the person’s consent if it is administered without the use of more force than would be required if the person had consented to its administration.

(4) The director of community treatment of a declared mental health facility implementing a treatment plan under a community treatment order must provide to the affected person particulars of the kind and dosages of medication that are being administered, or have recently been administered, to the person, if requested to do so by—

(b) any designated carer or the principal care provider of the affected person, or

(c) if the affected person consents, another person who would be entitled to apply for a community treatment order in relation to the person.

(5) A person implementing a treatment plan under a community treatment order may enter the land (but not the dwelling) on which an affected person’s residence is situated without the person’s consent for the purpose of implementing the community treatment order.

(1) The director of community treatment of a declared mental health facility implementing a community treatment order must take the steps set out in this section if the affected person in any way refuses or fails to comply with the community treatment order and the director is of the opinion that—

(b) there is a significant risk of deterioration in the mental or physical condition of the affected person.

(2) The director must—

(a) make a written record of the opinions, the facts on which they are based and the reasons for forming them, and

(b) cause the affected person to be informed that any further refusal to comply with the order will result in the person being taken to the declared mental health facility or another appropriate mental health facility and treated there, and

(c) take all reasonably practicable steps to notify the following persons of the action taken under paragraphs (a) and (b)—

(ii) the principal care provider of the affected person, if the principal care provider is not a designated carer.

(3) On a further refusal or failure by the affected person to comply with the community treatment order, the director may cause the person to be given a written notice (a breach notice )—

(a) requiring the person to accompany a member of staff of the NSW Health Service employed at the declared mental health facility for treatment in accordance with the order or to a specified mental health facility, and

(b) warning the person that the assistance of a police officer may be obtained in order to ensure compliance with the order.

(4) On the refusal or failure by the affected person to comply with a breach notice, the director may, in writing, make an order (a breach order ) that the affected person be taken to a specified declared mental health facility.

(5) For the purposes of subsection (3), the director causes a person to be given a breach notice if the director ensures that—

(b) if it is not reasonably practicable to hand the notice directly to the person, the notice is given to the person in a way specified in section 192(1)(a)(ii), (iv) or (v).

(6) The director must take all reasonably practicable steps to give a copy of a breach notice and a breach order to—

(b) the principal care provider of the affected person, if the principal care provider is not a designated carer.

(1) A police officer to whose notice a breach order is brought must, if practicable—

(a) apprehend and take or assist in taking the person the subject of the order to the mental health facility, or

(b) cause or make arrangements for some other police officer to do so.

(2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.

(1) An affected person who is at a mental health facility as a result of the giving of a breach notice or a breach order—

(b) may be assessed by a medical practitioner for involuntary admission to a mental health facility.

(2) A person who is at a mental health facility as a result of a breach notice or breach order may be released after treatment if treatment is accepted or may be dealt with at the mental health facility or taken to another declared mental health facility if treatment is refused.

(1) This section applies to an affected person who is taken to or is at a declared mental health facility after refusing treatment at a mental health facility consequent on a breach order.

(2) An authorised medical officer must, not later than 12 hours after the person is taken to the declared mental health facility, review the affected person’s mental condition and determine whether the person is a mentally ill person or a mentally disordered person.

(3) The authorised medical officer may cause the person to be given treatment in accordance with the community treatment order.

(4) If the authorised medical officer determines that the affected person is a mentally ill person or a mentally disordered person for whom no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available, the person is to be detained in the declared mental health facility for further observation or treatment, or both.

(5) The affected person may be detained until one of the following events occurs—

(a) in the case of a mentally ill person, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act,

(b) in the case of a mentally disordered person, the maximum period for which a person may be held as such a person under Part 2 ends, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act.

(1) An authorised medical officer must medically examine each affected person detained in a mental health facility to determine whether the person’s continued detention in the facility is necessary.

(2) The medical examinations are to be carried out at intervals of not more than 3 months.

(1) An affected person detained in a declared mental health facility under this Division must be discharged from the facility—

(a) if the authorised medical officer determines that the person is not a mentally ill person or a mentally disordered person or is of the opinion that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person, or

(b) if the authorised medical officer decides at any time that it is appropriate to do so.

(2) An authorised medical officer may do all necessary things to cause a person to be detained in a mental health facility under Part 2 at the end of the term of a community treatment order if the officer considers the person to be a mentally ill person.

(3) Any such person is taken to be detained in the mental health facility under section 19 when the authorised medical officer takes action to detain the person.

(1) An authorised medical officer must cause a person detained in a declared mental health facility under this Division to be brought before the Tribunal not later than 3 months after the person is detained, and at least every 3 months while the person is detained.

(2) The authorised medical officer must ensure that, as far as practicable, a person brought before the Tribunal is dressed in street clothes.

(2A) The Tribunal may review the case of the affected person in the absence of the affected person if—

(a) the authorised medical officer applies to have the review carried out in the absence of the affected person because the affected person has refused to attend the review or because the officer is of the opinion that the affected person is too unwell to attend the review, and

(b) the Tribunal is satisfied that the affected person has refused to attend or is too unwell to attend and is unlikely to be well enough to attend within a reasonable period, and

(c) the Tribunal is satisfied that any representative of the affected person (being an Australian legal practitioner, or other person approved by the Tribunal, who is representing the affected person for the purposes of the review) has been notified of the review, and

(d) the Tribunal has considered the views (if known) of each of the following—

(ii) any representative of the affected person,

(iii) the designated carer of the affected person,

(iv) the principal care provider of the affected person, and

(e) The Tribunal is of the opinion that carrying out the review in the absence of the affected person is desirable for the safety or welfare of the affected person.

(3) This section does not apply if the affected person’s community treatment order will end less than 3 months after the person is detained under this Division.

(1) The Tribunal is, on a review of an affected person, to determine whether the person is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available.

(2) For that purpose, the Tribunal is to do the following—

(b) inquire about the administration of any medication to the person and take account of its effect on the person’s ability to communicate.

(3) If the Tribunal determines that the affected person is a mentally ill person or a mentally disordered person for whom no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available, the Tribunal must determine whether the person should be detained in the declared mental health facility until the end of the community treatment order or should be detained in the facility as an involuntary patient.

(4) If the Tribunal does not determine that the person is a mentally ill person or is of the opinion that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available—

(a) it must make an order that the person be discharged from the declared mental health facility in which the person is detained, and

(b) it may make any community treatment order that it could make on a review of an involuntary patient.

(5) The Tribunal may defer the operation of an order for the discharge of an affected person for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the affected person to do so.

(6) An order made by the Tribunal under this section is to be in the form approved by the President.

(1) The Tribunal may vary or revoke a community treatment order, on application being made under this section or at any time on its own motion.

(2) An application may be made by any of the following—

(b) the psychiatric case manager of the affected person,

(c) any person who could have applied for the order.

(3) An application may be made only if—

(a) there has been a substantial or material change in the circumstances surrounding the making of the order, or

(b) relevant information that was not available when the order was made has become available.

(4) An order may be varied only if the order, as varied, could be made in relation to the affected person.

(5) The regulations may make provision for or with respect to applications under this section and the orders that may be made by the Tribunal.

(1) The director of community treatment of a declared mental health facility implementing a treatment plan under a community treatment order may revoke a community treatment order if of the opinion that the affected person is not likely to benefit from a continuation of the order.

(2) Before revoking a community treatment order, the director must consult the affected person and, if it is reasonably practicable to do so, any designated carer and the principal care provider of the affected person (if the principal care provider is not a designated carer).

(3) The director must notify the Tribunal in writing if the director revokes a community treatment order or decides not to apply to the Tribunal for a further order.

The director of community treatment of the declared mental health facility implementing a community treatment order must take all reasonably practicable steps to notify any designated carer and the principal care provider of the affected person (if the principal care provider is not a designated carer) of the order and if any of the following events occur—

(b) an application is made for a further order or the director decides not to apply for a further order.

(1) The affected person under a community treatment order made by the Tribunal may at any time appeal to the Court—

(a) if the term of the order exceeds 6 months or no term is specified in the order, against the duration of the order, or

(b) on any question of law or fact arising from the order or its making.

(2) The affected person under a community treatment order made by a Magistrate may at any time appeal to the Tribunal—

(a) if the term of the order exceeds 6 months or no term is specified in the order, against the duration of the order, or

(b) on any question of law or fact arising from the order or its making.

(3) The regulations may make provision for or with respect to appeals to the Tribunal under this section and the orders that may be made by the Tribunal in respect of any such appeal.

It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder—

(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,

(b) people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards,

(c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community,

(d) the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others,

(e) people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment and be supported to pursue their own recovery,

(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,

(g) any special needs of people with a mental illness or mental disorder should be recognised, including needs related to age, gender, religion, culture, language, disability or sexuality,

(g1) people under the age of 18 years with a mental illness or mental disorder should receive developmentally appropriate services,

(g2) the cultural and spiritual beliefs and practices of people with a mental illness or mental disorder who are Aboriginal persons or Torres Strait Islanders should be recognised,

(h) every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and recovery plans and to consider their views and expressed wishes in that development,

(h1) every effort that is reasonably practicable should be made to obtain the consent of people with a mental illness or mental disorder when developing treatment plans and recovery plans for their care, to monitor their capacity to consent and to support people who lack that capacity to understand treatment plans and recovery plans,

(i) people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand,

(j) the role of carers for people with a mental illness or mental disorder and their rights under this Act to be kept informed, to be involved and to have information provided by them considered, should be given effect.

An authorised medical officer, or any other person employed at a mental health facility, must not wilfully strike, wound, ill-treat or neglect a patient or person detained at the facility under this or any other Act.

(1) An authorised medical officer, or another person, exercising functions under this Act must not use a spit hood in the exercise of the functions.

(2) Subsection (1)—

(b) does not limit section 69.

(3) In this section—

(a) means a covering, however described, intended to be placed over a person’s head to prevent the person from spitting on, or biting, another person, but

(b) does not include a helmet designed to prevent self-harm, even if the helmet incorporates a part designed to stop spittle.

A medical practitioner must arrange for an interpreter to be present at a medical examination of a person for the purposes of this Act, if the person is unable to communicate adequately in English but can communicate adequately in another language.

(1) The designated carer of a person (the patient ) for the purposes of this Act is—

(b) the parent of a patient who is a child (subject to any nomination by a patient referred to in paragraph (c)), or

(c) if the patient is over the age of 14 years and is not a person under guardianship, a person nominated by the patient as a designated carer under this Part under a nomination that is in force, or

(d) if the patient is not a patient referred to in paragraph (a) or (b) or there is no nomination in force as referred to in paragraph (c)—

(i) the spouse of the patient, if any, if the relationship between the patient and the spouse is close and continuing, or

(ii) any individual who is primarily responsible for providing support or care to the patient (other than wholly or substantially on a commercial basis), or

(iii) a close friend or relative of the patient.

(2) In this section—

close friend or relative of a patient means a friend or relative of the patient who maintains both a close personal relationship with the patient through frequent personal contact and a personal interest in the patient’s welfare and who does not provide support to the patient wholly or substantially on a commercial basis.

relative of a patient who is an Aboriginal person or a Torres Strait Islander includes a person who is part of the extended family or kin of the patient according to the indigenous kinship system of the patient’s culture.

(1) A person may nominate up to 2 persons to be the person’s designated carers for the purposes of this Act.

(2) A person may nominate persons who are excluded from being given notice or information about the person under this Act and may revoke or vary any such nomination.

(3) A person who is over the age of 14 years and under the age of 18 years may not exclude the person’s parent by a nomination under subsection (2).

(4) A nomination, variation or revocation is to be made in writing and may be given to an authorised medical officer at a mental health facility or a director of community treatment.

(5) A nomination remains in force for the period prescribed by the regulations or until it is revoked in writing.

(6) An authorised medical officer or a director of community treatment is, in carrying out his or her functions under this Act or the regulations, to give effect to a nomination or a variation or revocation of a nomination, if notified of the nomination, variation or revocation.

(7) An authorised medical officer or a director of community treatment is not required to give effect to a nomination, or a variation or revocation of a nomination, if the officer or director reasonably believes—

(a) that to do so may put the patient or nominated person or any other person at risk of serious harm, or

(b) that the person who made the nomination, variation or revocation was incapable of making the nomination, variation or revocation.

(1) The principal care provider of a person for the purposes of this Act is the individual who is primarily responsible for providing support or care to the person (other than wholly or substantially on a commercial basis).

(2) An authorised medical officer at a mental health facility or a director of community treatment may, for the purposes of complying with a provision of this Act or the regulations, determine who is the principal care provider of a person.

(3) The authorised medical officer or the director of community treatment must not determine that a person is the principal care provider of another person if the person is excluded from being given notice or information about the other person under this Act.

(4) An authorised medical officer or a director of community treatment is not required to give effect to a requirement relating to a principal care provider of a person under this Act or the regulations if the officer or director reasonably believes that to do so may put the person or the principal care provider at risk of serious harm.

(5) A principal care provider of a person may also be a designated carer of the person.

72B Requirement to consider information provided by other persons about patients or detained persons when making detention or discharge decisions

An authorised medical officer or other medical practitioner or accredited person who examines an involuntary patient or person detained in a mental health facility for the purposes of determining whether the person is a mentally ill person or a mentally disordered person or whether to discharge the patient or person is to consider any information provided by the following persons, if it is reasonably practicable to do so—

(b) any medical practitioner or other health professional who has treated the patient or person in relation to a relevant matter,

(c) any person who brought the patient or person to the mental health facility.

(1) On a request made under this section, an authorised medical officer of a mental health facility must provide particulars of the types of medication and dosages of each type of medication currently being administered or recently administered to a patient or person detained in the facility.

(2) A request may be made by—

(b) any designated carer or the principal care provider of any such patient or person, or

(c) a representative of any such patient or person at a mental health inquiry or before the Tribunal.

(1) An authorised medical officer of a mental health facility must give the following persons an oral explanation and a written statement of their legal rights and other entitlements under this Act—

(b) a person who is a voluntary patient in the facility, if it is decided to take steps to detain the person under Part 2 of Chapter 3,

(c) an affected person who is detained in the facility after a breach notice or breach order relating to a community treatment order, if it is decided to take steps to detain the person under Part 2 of Chapter 3.

(2) The explanation and statement must be given as soon as practicable after the person is taken to a mental health facility or it is decided to take steps to detain the person.

(3) The written statement is to be in the form set out in Schedule 3.

(4) If the authorised medical officer is of the opinion that a person is not capable of understanding the explanation or statement when it is first given, another explanation or statement must be given to the person not later than 24 hours before a mental health inquiry is held about the person.

(5) The authorised medical officer must, if the person is unable to communicate adequately in English but is able to communicate adequately in another language, arrange for the oral explanation to be given in that other language.

(1) An authorised medical officer of a mental health facility must give a person who becomes a voluntary patient of the facility an oral explanation and a written statement of the person’s legal rights and other entitlements under this Act.

(2) The explanation and statement must be given as soon as practicable after the person becomes a voluntary patient of the mental health facility, whether or not the patient was a patient or detained in the facility immediately before becoming a voluntary patient.

(3) The written statement is to be in the form set out in Schedule 3A.

(4) If the authorised medical officer is of the opinion that the person is not capable of understanding the explanation or statement when it is first given, another explanation or statement must be given to the person if the person becomes capable of understanding the explanation or statement.

(5) The authorised medical officer must, if the person is unable to communicate adequately in English but is able to communicate adequately in another language, arrange for the oral explanation to be given in that other language.

(1) An authorised medical officer must, not later than 24 hours after a person is detained in a mental health facility, take all reasonably practicable steps to notify any designated carer and the principal care provider (if the principal care provider is not a designated carer) of the person that the person is detained in the facility.

(2) Notice need not be given if the person is discharged or classified as a voluntary patient within that period.

(1) An authorised medical officer must notify an assessable person detained in the mental health facility that—

(b) all reasonably practicable steps will be taken to give notice of the inquiry to any designated carer and the principal care provider of the person (if the principal care provider is not a designated carer).

(2) The notice is to be given when the authorised medical officer becomes aware that the person is an assessable person.

(3) The authorised medical officer must, in accordance with the regulations, take all reasonably practicable steps to give notice to any designated carer and the principal care provider (if the principal care provider is not a designated carer) of an assessable person of a proposed mental health inquiry.

(1) An authorised medical officer of a mental health facility must give, or cause to be given, to a person ordered by the Tribunal after a mental health inquiry to be detained in the facility as an involuntary patient a statement of the rights of appeal conferred on the person as an involuntary patient under this Act.

(1A) An authorised medical officer of a mental health facility must give, or cause to be given, to a person detained in the facility on the order of the Tribunal after a breach of a community treatment order a statement of the rights of appeal conferred on the person under this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 .

(2) The statement must be given as soon as practicable after the order is made.

(3) The statement is to be in the form approved by the Minister.

78 Notifications to designated carers and principal care providers of events affecting patients or detained persons

(1) An authorised medical officer of a mental health facility must take all reasonably practicable steps to notify any designated carer and the principal care provider (if the principal care provider is not a designated carer) of a patient or person detained in the facility if any of the following events occurs—

(a) the patient or person is absent from the facility without permission or fails to return at the end of a period of leave,

(b) it is proposed to transfer the patient or person, or the patient or person is transferred, to another mental health facility or other facility,

(c) the patient or person is discharged from the mental health facility,

(d) the patient or person is re-classified as a voluntary patient,

(e) it is proposed to apply to the Tribunal for an ECT inquiry under Part 2 or to ascertain whether the patient or person is capable of giving informed consent to electro convulsive therapy,

(f) a surgical operation is performed on the patient or person under Part 3,

(g) it is proposed to apply to the Secretary or the Tribunal for consent to a surgical operation or special medical treatment under Part 3,

(h) the patient or person has any matter before the Tribunal.

(2) The authorised medical officer must give the notice as soon as practicable after becoming aware that the event has occurred.

(3) In the case of a proposed transfer, the notice must be given before the relevant order or arrangement is made, except in an emergency.

(1) An authorised medical officer of a mental health facility must take all reasonably practicable steps to ensure that a patient or person detained in the facility, and any designated carer and the principal care provider (if the principal care provider is not a designated carer) of the patient or person, are consulted in relation to planning the patient’s or person’s discharge and any subsequent treatment or other action considered in relation to the patient or person.

(2) In planning the discharge of any such patient or person, and any subsequent treatment or other action considered in relation to the patient or person, the authorised medical officer must take all reasonably practicable steps to consult with agencies involved in providing relevant services to the patient or person, any designated carer and the principal care provider (if the principal care provider is not a designated carer) of the patient or person and any dependent children or other dependants of the patient or person.

(3) An authorised medical officer of a mental health facility must take all reasonably practicable steps to provide any such patient or person who is discharged from the facility, and any designated carer and the principal care provider (if the principal care provider is not a designated carer) of the patient or person, with appropriate information as to follow-up care.

(1) An involuntary patient or a person detained in a mental health facility may be transferred from the mental health facility to another mental health facility or another health facility.

(2) A person who is a patient in a health facility other than a mental health facility may be transferred from the health facility to a declared mental health facility for the purpose of detaining the person under Part 2 of Chapter 3.

(3) A transfer of a patient or person to a health facility other than a mental health facility may be made on the grounds that the patient or person requires medical treatment for a condition or illness (other than a mental illness or other mental condition).

(4) A transfer under this section is to be done in accordance with an arrangement between medical officers of each facility or an order in writing by the Secretary.

(5) An arrangement under this section is sufficient authority for the transfer of a patient or person, and the reception into, the mental health facility or other health facility to which the patient or person is transferred.

(1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility—

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

(2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may—

(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and

(b) restrain the person in any way that is reasonably necessary in the circumstances.

(3) A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

The Poisons and Therapeutic Goods Act 1966 , and the regulations under that Act, regulate the persons who may prescribe and administer drugs (including sedative drugs).

(4) A person authorised by this Act to take a person to or from a mental health facility or other health facility may carry out a frisk search or an ordinary search of the person, if the person reasonably suspects that the other person is carrying anything—

(b) that could be used to assist the other person to escape from the person’s custody.

(5) The person may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (4) (a) or (b).

(6) In this section—

(a) a search of a person conducted by quickly running the hands over the person’s outer clothing or by passing an electronic metal detection device over or in close proximity to the person’s outer clothing, or

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to that thing.

ordinary search means a search of a person or of articles in the possession of the person that may include—

(a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and

(b) an examination of those items.

In this Part—

involuntary patient includes a forensic patient, correctional patient and a person detained in a mental health facility.

(1) A person must not administer to or perform on another person any of the following—

(b) insulin coma therapy,

(c) psychosurgery,

(d) any other operation or treatment prescribed by the regulations for the purposes of this section.

(2) In this section—

(a) the creation of 1 or more lesions, whether made on the same or separate occasions, in the brain of a person by any surgical technique or procedure, when it is done primarily for the purpose of altering the thoughts, emotions or behaviour of the person, or

(b) the use for such a purpose of electrodes within the brain to produce such a lesion or lesions, whether on the same or separate occasions, or

(c) the use on 1 or more occasions of electrodes within the brain primarily for the purpose of influencing or altering the thoughts, emotions or behaviour of a person by stimulation through the electrodes without the production of a lesion in the brain of the person,

but does not include a technique or procedure carried out for the treatment of a condition or an illness prescribed by the regulations for the purposes of this definition.

An authorised medical officer of a mental health facility may, subject to this Act and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 , give, or authorise the giving of, any treatment (including any medication) the officer thinks fit to an involuntary patient or assessable person detained in the facility in accordance with this Act or that Act.

A medical practitioner must not, in relation to any mental illness or mental condition or suspected mental illness or mental condition, administer, or cause to be administered to a person a drug or drugs in a dosage that, having regard to professional standards, is excessive or inappropriate.

(1) The medical superintendent of a mental health facility must establish an internal review system to monitor and review the prescription and use of drugs in the facility.

(2) The director of community treatment of a mental health facility must establish an internal review system to monitor and review the prescription and use of drugs under community treatment orders implemented by the facility.

(3) The system is to monitor the frequency of administration and dosages of drugs, the intended and unintended effects of any drugs administered and the appropriateness of their use.

In this Division—

(1) A person who is not a medical practitioner must not administer electro convulsive therapy to another person.

(2) A medical practitioner must not administer electro convulsive therapy to a person—

(b) at a place other than a mental health facility or other place approved by the Secretary.

(3) A medical practitioner must not administer electro convulsive therapy to a person unless there are present during the administration of the electro convulsive therapy not less than 2 medical practitioners (of whom the medical practitioner administering the electro convulsive therapy may be one)—

(b) another of whom is experienced in the administration of anaesthesia.

Electro convulsive therapy may be administered only in the following circumstances—

(a) to a person other than an involuntary patient or a person who is under the age of 16 years, if the person meets the requirements for informed consent to the treatment and medical certification set out in this Division,

(b) to an involuntary patient or a person who is under the age of 16 years, after an ECT determination by the Tribunal at an ECT inquiry.

In this Part, involuntary patient includes a forensic patient, correctional patient and a person detained in a mental health facility (see section 82).

The medical superintendent of a mental health facility may refuse to allow electro convulsive therapy to be administered to a patient or person detained in the facility, even though the Tribunal has made a determination under this Division that enables the treatment to be given.

(1) A person is taken to have given informed consent to the administration of electro convulsive therapy if the person gives a free, voluntary and written consent after this section is complied with.

(2) The following steps must be taken before consent is obtained—

(a) a fair explanation must be made to the person of the techniques or procedures to be followed, including an identification and explanation of any technique or procedure about which there is not sufficient data to recommend it as recognised treatment or to reliably predict the outcome of its performance,

(b) a full description must be given, without exaggeration or concealment, to the person of any possible discomforts and risks of the treatment (including possible loss of memory),

(c) a full description must be given to the person of any expected benefits of the treatment,

(d) a full disclosure must be made, without exaggeration or concealment, to the person of any appropriate alternative treatments that would be advantageous to the person,

(e) an offer must be made to the person to answer any inquiries concerning the procedures or any part of them,

(f) the person must be given notice that the person is free to refuse or to withdraw consent and to discontinue the procedures or any part of them at any time,

(g) a full disclosure must be made to the person of any financial relationship between the person proposing the administration of the treatment or the administering medical practitioner, or both, and the facility in which it is proposed to administer the treatment,

(h) the person must be given notice of their right to obtain legal and medical advice and to be represented before giving consent,

(i) any question relating to the techniques or procedures to be followed that is asked by the person must have been answered and the answers must appear to have been understood by the person,

(j) a form setting out the steps in this subsection is to be given to the person and an oral explanation of the matters dealt with in the form is to be given to the person in a language with which the person is familiar.

(3) The regulations are to prescribe forms setting out the steps to be taken before obtaining informed consent to electro convulsive therapy.

A person is presumed to be incapable of giving informed consent to the administration of electro convulsive therapy if, when consent is sought, the person is affected by medication that impairs the person’s ability to give that consent.

93 When electro convulsive therapy may be administered to persons other than involuntary patients or persons under 16

(1) Electro convulsive therapy may be administered to a person (other than an involuntary patient or a person who is under the age of 16 years) if—

(a) the person is capable of giving informed consent to the treatment and has given informed consent to the treatment, including a written consent in the form prescribed by the regulations, and

(b) a certificate is given under this section by at least 2 medical practitioners, at least one of whom is a psychiatrist.

(2) A certificate under this section is a certificate in writing that, after considering the clinical condition and history of treatment of, and any appropriate alternative treatments for, the person, the medical practitioners are of the opinion that electro convulsive therapy is—

(b) necessary or desirable for the safety or welfare of the person.

(3) An authorised medical officer who is unsure whether a person is capable of giving informed consent may apply to the Tribunal for an ECT consent inquiry to determine whether the person is capable of giving informed consent and has given that consent.

(1) Electro convulsive therapy may be administered to an involuntary patient or a person who is under the age of 16 years in accordance with an ECT determination made by the Tribunal at an ECT administration inquiry.

(2) An authorised medical officer may apply to the Tribunal for an ECT administration inquiry about an involuntary patient (other than a patient who is under the age of 16 years) if a certificate is given under this section by at least 2 medical practitioners, at least one of whom is a psychiatrist.

(2A) An authorised medical officer may apply to the Tribunal for an ECT administration inquiry about a person who is under the age of 16 years (including an involuntary patient) if a certificate is given under this section by at least 2 medical practitioners, at least one of whom is a psychiatrist with expertise in the treatment of children or adolescents.

(3) A certificate under this section is a certificate in writing that, after considering the clinical condition and history of treatment of, and any appropriate alternative treatments for, the patient, the medical practitioners are of the opinion that electro convulsive therapy is—

(b) necessary or desirable for the safety or welfare of the patient.

The Tribunal must hold an ECT inquiry about a person as soon as practicable after an application is made to it under this Division.

(1) ECT consent inquiries about voluntary patients The Tribunal is, on an ECT consent inquiry, to determine whether or not the person is capable of giving informed consent to the administration of electro convulsive therapy and has given that consent.

(2) ECT administration inquiries about involuntary patients or persons under 16 The Tribunal is, on an ECT administration inquiry, to determine whether or not an ECT determination should be made in relation to the patient or person under the age of 16 years about whom the inquiry is held.

(3) ECT determinations that enable treatment of involuntary patients (other than persons under 16) An ECT determination for an involuntary patient (other than a person under the age of 16 years) is a determination—

(a) that the patient is capable of giving informed consent to the electro convulsive therapy and has given that consent, or

(i) the patient is incapable of giving informed consent or is capable of giving informed consent to the electro convulsive therapy but has refused, or has neither consented nor refused, to have the treatment administered, and

(ii) after considering the medical opinions and other information placed before it, the Tribunal is satisfied the electro convulsive therapy is a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the patient.

(3A) ECT determinations that enable treatment of persons under 16 An ECT determination for a person under the age of 16 years (including an involuntary patient) is a determination—

(i) the person is capable of giving informed consent to the electro convulsive therapy and has given that consent, and

(ii) after considering the medical opinions and other information placed before it, the Tribunal is satisfied that the electro convulsive therapy is a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the person, or

(b) in the case of an involuntary patient, that—

(i) the patient is incapable of giving informed consent or is capable of giving informed consent to the electro convulsive therapy but has refused, or has neither consented nor refused, to have the treatment administered, and

(ii) after considering the medical opinions and other information placed before it, the Tribunal is satisfied that the electro convulsive therapy is a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the person.

(4) Maximum number of treatments for involuntary patients or persons under 16 In any ECT determination, the Tribunal must also specify the number of treatments that are approved (not exceeding 12).

(5) Increase in maximum number of treatments for involuntary patients or persons under 16 Despite subsection (4), the Tribunal may specify more than 12 treatments if the Tribunal is satisfied that, having regard to the special circumstances of the case (including the success of any previous electro convulsive therapy), the higher number of treatments is justified.

(5A) Rights of appearance A patient or person must appear before the Tribunal during an ECT inquiry unless—

(a) an authorised medical officer applies to have the ECT inquiry carried out in the absence of the patient or person because the patient or person has refused to attend the ECT inquiry or because the officer is of the opinion that the patient or person is too unwell to attend the ECT inquiry, and

(b) the Tribunal is satisfied that the patient or person has refused to attend or is too unwell to attend and is unlikely to be well enough to attend within a reasonable period, and

(c) the Tribunal is satisfied that any representative of the patient or person (being an Australian legal practitioner, or other person approved by the Tribunal, who is representing the patient or person for the purposes of the inquiry) has been notified of the review or that reasonable steps have been taken to notify the representative, and

(d) the Tribunal has considered the views (if known) of each of the following—

(ii) any representative of the patient or person,

(iii) the designated carer of the patient or person,

(iv) the principal care provider of the patient or person, and

(e) the Tribunal is of the opinion that determining the ECT inquiry in the absence of the patient or person is desirable for the safety or welfare of the patient or person.

(6) Procedures applying to ECT inquiries For the purposes of an ECT inquiry, the Tribunal is to do the following—

(a) in the case of an ECT administration inquiry, take reasonable steps to find out from the patient about whom the inquiry is being held whether or not the patient was aware of the authorised medical officer’s obligation to give notice of the inquiry and whether notice of the inquiry was given in accordance with this Act,

(b) take reasonable steps to inform the patient or person about whom the inquiry is being held of the nature and possible results of the inquiry, if the patient or person has not or appears not to have been informed of them,

(c) inquire about the administration of any medication to the patient or person about whom the inquiry is being held and take account of its effect on the patient’s or person’s ability to communicate,

(d) take reasonable steps to consider the views of the patient or person about whom the inquiry is being held about the treatment,

(d1) in the case of an ECT administration inquiry for a person who is under the age of 16 years, consider the views (if known) of any designated carer, principal care provider of the person or parent (if not a designated carer or the principal care provider),

(e) consider any information before it.

(7) Duration of ECT determination An ECT determination has effect for 6 months from the date the determination is made unless a shorter period is specified in the determination.

(1) A register containing information relating to the administration of electro convulsive therapy is to be kept in relation to each mental health facility or other place at which the treatment is administered.

(2) The medical superintendent of the facility or the person approved by the Secretary for any other place is to keep the register or cause it to be kept.

(3) The register is to be in the form prescribed by the regulations.

(4) Particulars of a proposed administration of electro convulsive therapy are to be entered in the register before the therapy is administered, and any differences in the particulars of treatment actually administered are to be subsequently noted and explained in the register.

(5) The register may be inspected at any time by the Tribunal, the President, the Principal official visitor, an official visitor or the Secretary.

In this Part—

(a) any treatment, procedure, operation or examination that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out, or

(b) any other kind of treatment declared by the regulations to be special medical treatment for the purposes of this Part.

surgical operation means a surgical procedure, a series of related surgical operations or surgical procedures, and the administration of an anaesthetic for the purpose of medical investigation.

(1) An authorised medical officer or the Secretary may consent to the performance of a surgical operation on an involuntary patient (other than a forensic patient or correctional patient not suffering from a mental illness) if of the opinion that—

(a) the patient is incapable of giving consent to the operation or is capable of giving consent but refuses to give that consent or neither gives nor refuses to give that consent, and

(b) it is necessary, as a matter of urgency, to perform a surgical operation on the patient in order to save the patient’s life or to prevent serious damage to the patient’s health or to prevent the patient from suffering or continuing to suffer significant pain or distress.

(2) An authorised medical officer or the Secretary may consent to the performance of a surgical operation on a forensic patient or correctional patient not suffering from a mental illness if of the opinion that—

(b) it is necessary, as a matter of urgency, to perform a surgical operation on the patient in order to save the patient’s life or to prevent serious damage to the patient’s health or to prevent the patient from suffering or continuing to suffer significant pain or distress.

(3) The consent is to be in writing and signed by the person giving the consent.

(4) The authorised medical officer of the mental health facility in which the involuntary patient is detained must, as soon as practicable after the performance of a surgical operation consented to under this section, notify the Tribunal of the operation.

(1) An authorised medical officer may apply to the Secretary for consent to the performance of a surgical operation on an involuntary patient.

(2) An application is to be made to the Secretary if a designated carer of the patient agrees, in writing, to the performance of the surgical operation.

(3) On an application, the Secretary may consent to the performance of a surgical operation on an involuntary patient if of the opinion that—

(b) it is desirable, having regard to the interests of the patient, to perform the surgical operation on the patient.

(4) (Repealed)

(5) An application must be made not earlier than 14 days after notice of the proposed application is given under section 78, but may be made sooner if—

(a) the authorised medical officer is of the opinion that the urgency of the circumstances requires an earlier determination of the matter, or

(b) the person notified indicates that the person does not object.

(6) The consent is to be in writing and signed by the person giving the consent.

(1) An authorised medical officer of a mental health facility may apply to the Tribunal for consent to the performance of a surgical operation on an involuntary patient detained in the facility.

(2) An application is to be made to the Tribunal if none of the designated carers of the person agree, in writing, to the performance of the surgical operation.

(3) On an application, the Tribunal may consent to the performance of a surgical operation on an involuntary patient (other than a forensic patient or correctional patient not suffering from a mental illness) if the Tribunal is of the opinion that—

(a) the patient is incapable of giving consent to the operation or is capable of giving consent but refuses to give that consent or neither gives nor refuses to give that consent, and

(b) it is desirable, having regard to the interests of the patient, to perform the surgical operation on the patient.

(4) On an application, the Tribunal may consent to the performance of a surgical operation on a forensic patient or correctional patient not suffering from a mental illness if the Tribunal is of the opinion that—

(b) it is desirable, having regard to the interests of the patient, to perform the surgical operation on the patient.

(5) An application for consent must be made not earlier than 14 days after notice of the proposed application is given under section 78, but may be made sooner if—

(a) the authorised medical officer is of the opinion that the urgency of the circumstances requires an earlier determination of the matter, or

(b) the person notified indicates that the person does not object.

(1) A person must not carry out special medical treatment on a patient otherwise than in accordance with this Part, unless the person is a medical practitioner and—

(a) is of the opinion that it is necessary, as a matter of urgency, to carry out special medical treatment on the patient in order to save the patient’s life or to prevent serious damage to the patient’s health, or

(b) consent to the treatment being carried out is given by the Tribunal in accordance with this Part.

(2) This section does not apply to a patient who is a child to whom section 175 of the Children and Young Persons (Care and Protection) Act 1998 applies.

This provision provides an offence in relation to carrying out special medical treatment on children.

(1) An authorised medical officer of a mental health facility may apply to the Tribunal for consent to the carrying out of special medical treatment on an involuntary patient detained in the facility.

(2) On an application, the Tribunal may consent to the carrying out of special medical treatment on a patient (other than prescribed special medical treatment) if the Tribunal is satisfied that it is necessary to prevent serious damage to the health of the patient.

(3) The Tribunal may consent to the carrying out of prescribed special medical treatment if the Tribunal is satisfied that—

(a) the treatment is the only or most appropriate way of treating the patient, and is manifestly in the best interests of the patient, and

(b) in so far as the National Health and Medical Research Council has prescribed guidelines that are relevant to the carrying out of the treatment—those guidelines have been or will be complied with as regards the patient.

(4) The Tribunal must not consent to the carrying out of special medical treatment on a patient who is under the age of 16 years.

(5) An application for consent must be made not earlier than 14 days after notice of the proposed application is given under section 78, but may be made sooner if the authorised medical officer is of the opinion that the urgency of the circumstances requires an earlier determination of the matter or the person notified agrees.

(6) In this section—

prescribed special medical treatment means special medical treatment referred to in paragraph (b) of the definition of special medical treatment in section 98.

A consent given under this Part has the same effect as if it were given by the patient and the patient had the capacity to consent or, in the case of a child under the age of 14 years or a person under guardianship, by the person having capacity to consent on the child’s or person’s behalf.

The objectives of the New South Wales public health system under this Act in relation to mental health services are to establish, develop, promote, assist and encourage mental health services that—

(a) ensure that provision is made for the care, treatment, control and rehabilitation of persons who are mentally ill or mentally disordered, and

(b) promote the establishment of community mental health services for the purpose of enabling the treatment in the community wherever possible of persons who are mentally ill or suffering from the effects of mental illness or who are mentally disordered, and

(c) develop, as far as practicable, standards and conditions of care and treatment for persons who are mentally ill or mentally disordered that are in all possible respects at least as beneficial as those provided for persons suffering from other forms of illness, and

(d) take into account the various religious, cultural and language needs of those persons, and

(e) are comprehensive and accessible, and

(f) permit appropriate intervention at an early stage of mental illness, and

(g) assist patients to live in the community through the provision of direct support and provide for liaison with carers and providers of community services.

The Secretary has the following functions under this Act—

(b) to assist in the training and education of persons responsible for the care and treatment of persons who are mentally ill or mentally disordered,

(c) to make recommendations and reports to the Minister about matters affecting the accommodation, maintenance, care, treatment, control and welfare of persons who are mentally ill or mentally disordered,

(d) to make recommendations to the Minister about this Act or the regulations,

(e) to promote informed public opinion on matters relating to public health by publishing reports and information concerning mental health,

(f) to promote public understanding of involvement in measures for the prevention, treatment and care of mental illness and the care, treatment and control of persons who are mentally ill or mentally disordered,

(g) to assist in, and promote, co-operation between different agencies involved in the provision of services for people who are mentally ill or mentally disordered and their carers,

(h) any other functions conferred or imposed on the Secretary by or under this or any other Act.

(1) The Secretary may delegate the exercise of any function of the Secretary under this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (other than this power of delegation) to—

(b) any member of staff of the NSW Health Service, or

(c) any person, or any class of persons, authorised for the purposes of this section by the regulations.

(2) A delegate may sub-delegate to a person referred to in subsection (1) (a) or (b) if the delegate is authorised in writing to do so by the Secretary.

(1) The Secretary must, as soon as practicable after 30 June in each year, cause to be prepared and forwarded to the Minister a report as to the matters relating to mental health services that are prescribed by the regulations for the 12 months preceding that date.

(2) The Minister is required to lay the report, or cause it to be laid, before each House of Parliament as soon as practicable after the receipt by the Minister of the report.

(3) Any report required to be made under this section may be included in the annual reporting information prepared for the Ministry of Health under the Government Sector Finance Act 2018 .

(1) The Secretary, by order published in the Gazette—

(a) may declare any premises to which this section applies and that are specified or described in the order to be a declared mental health facility, and

(b) may, in the same or another order so published, name the premises so specified or described, and

(c) may, in the same or another order so published, limit the provisions of this Act or the purposes under this Act for which the facility is a declared mental health facility.

(2) Without limiting subsection (1), an order may do any of the following—

(b) designate the purposes for which a mental health facility of a specified class may be used,

(c) impose restrictions on the use of a mental health facility for specified purposes,

(d) impose any other conditions in relation to the operation of the facility as a mental health facility.

(3) This section applies to the following premises—

(a) premises that belong to or are under the control of the Crown or a person acting on behalf of the Crown,

(b) premises that are under the control of a public health organisation within the meaning of the Health Services Act 1997 ,

(c) premises that the owner or person who has control of the premises has agreed, by an instrument in writing given to the Secretary, to being premises to which this section applies.

A declared mental health facility that is also a private mental health facility ceases to be a declared mental health facility if the licence for the facility is cancelled under Division 2.

(1) The Secretary must, by instrument in writing, appoint a medical practitioner as medical superintendent of a declared mental health facility (other than a private mental health facility).

(2) The Secretary may (by the same or different instruments) appoint a medical practitioner as the medical superintendent of more than one declared mental health facility.

(1) The Secretary may, by instrument in writing, appoint a medical practitioner as deputy medical superintendent of a declared mental health facility.

(2) The deputy medical superintendent of a declared mental health facility has the functions of the medical superintendent of the facility during the absence, for any reason, of the medical superintendent or during a vacancy in the office of medical superintendent.

(3) The Secretary may (by the same or different instruments) appoint a medical practitioner as the deputy medical superintendent of more than one declared mental health facility.

(1) The Secretary must appoint the holder of a specified office as the director of community treatment of a mental health facility that implements treatment plans under community treatment orders and may appoint the holder of a specified office as the deputy director of community treatment of the facility.

(2) An office may not be specified unless, in the opinion of the Secretary, it qualifies the holder to exercise the functions conferred or imposed on a director or deputy director by or under this Act.

(3) A person appointed as a director of community treatment must be a health professional who is appropriately qualified for the position by education, training and experience.

(4) The director of community treatment of a mental health facility may delegate a function conferred or imposed by this Act on the director (other than this power of delegation) to the deputy director.

(1) The director of community treatment of a declared mental health facility may appoint a person employed at the facility as the psychiatric case manager of an affected person under a community treatment order.

(2) A person may not be appointed as a psychiatric case manager unless, in the opinion of the director, the person is qualified to supervise the treatment, and monitor the progress, of the affected person under a community treatment order.

(3) The same person may be the director or deputy director of community treatment of a declared mental health facility and the psychiatric case manager of an affected person.

(1) A person may apply to the Secretary for a licence to keep premises as a private mental health facility for the admission, care and treatment of patients.

(2) An application must be—

(b) accompanied by a plan of the premises in respect of which the licence is sought and the prescribed fee.

(1) The Secretary may grant an application for a licence under this Division or may refuse to grant the application.

(2) If the Secretary grants the application, the Secretary—

(a) must specify the maximum number of patients who may be kept or treated at the private mental health facility, and

(b) must specify any other terms and conditions to which the licence is subject, as the Secretary thinks fit, and

(c) must issue the applicant with a licence in a form approved by the Secretary.

A licence remains in force until it is cancelled in accordance with this Division.

A licensee must, on or before 31 December in each year—

(a) forward to the Secretary a statement in a form approved by the Secretary relating to the conduct of the premises to which the licence relates and the admission of patients to those premises and the care and treatment of patients on those premises, and

(b) pay to the Secretary the prescribed annual licence fee.

If the Secretary is satisfied that a licence has been lost, destroyed or damaged, the Secretary may, on payment of the prescribed fee, issue a duplicate licence to the licensee.

The Secretary may cancel a licence—

(a) if the annual licence fee payable in respect of the licence has not been paid by the due date, or

(b) if the licensee requests the Secretary, in writing, to cancel the licence, or

(c) if the premises to which the licence relates have ceased to be kept as a mental health facility for the admission, care and treatment of patients, or

(d) if the premises to which the licence relates cease to be the subject of a licence under the Private Health Facilities Act 2007 .

(1) The Secretary may, by notice in writing served on the holder of a licence, require the holder to show cause, by a date and time specified in the notice (being a date not less than 1 month after the date of service of the notice), why the licence should not be cancelled.

(2) The Secretary may cancel the licence if, by the date and time referred to in the notice, the holder of the licence has not shown sufficient cause why the licence should not be cancelled.

(1) The holder of a licence may, at any time, apply to the Secretary for the variation of any term or condition to which the licence is subject.

(2) The Secretary may, on an application being made—

(b) refuse to grant the application.

The holder of a licence must make such arrangements as may be approved by the Secretary for the provision of medical services to patients in the private mental health facility.

(1) The holder of a licence must appoint a medical practitioner approved by the Secretary as the medical superintendent of the private mental health facility.

(2) The medical superintendent of a private mental health facility must cause to be kept such records and furnish to the Secretary such particulars as are approved by the Minister in respect of the admission, treatment, discharge, removal, absence with or without leave or death of each patient admitted to the facility.

(1) The holder of a licence may appoint a medical practitioner as the deputy medical superintendent of the private mental health facility.

(2) The appointment of the medical practitioner must be approved by the Secretary before it takes effect.

(3) The deputy medical superintendent of a private mental health facility has the functions of the medical superintendent of the facility during the absence, for any reason, of the medical superintendent or during a vacancy in the office of medical superintendent.

A person keeping premises is guilty of an offence against this Act if—

(b) at any time after 2 months after the licence ceases to be in force, there is in or on the premises a person who was a patient immediately before the licence ceased to be in force and who has not ceased to be a patient.

A person must not conduct a private health facility within the meaning of the Private Health Facilities Act 2007 at which a person is being treated primarily for a mental illness, unless the person who conducts the private health facility is the holder of a licence granted under this Division.

(1) The Minister may, by instrument in writing, appoint a person to be the Principal official visitor.

(2) The Principal official visitor has the following functions—

(a) to advise and assist official visitors in the exercise of the functions conferred or imposed on them by or under this Act,

(b) to oversee the official visitor program conducted under this Act,

(c) to report to the Minister, as directed by the Minister, about the exercise of the functions of the Principal official visitor and official visitors,

(d) to refer matters raising any significant public mental health issues or patient safety or care or treatment issues to the Minister or any other appropriate person or body,

(e) to act as an advocate to the Minister for consumers of mental health care to promote the proper resolution of issues arising in the mental health system,

(f) any other function conferred on the Principal official visitor by or under this or any other Act.

(1) The Minister must, by instrument in writing, appoint official visitors.

(2) A person may be appointed as an official visitor if the person has any of the following qualifications—

(b) the person is a registered psychologist,

(c) the person has any other qualifications prescribed by the regulations,

(d) the person is otherwise a suitably qualified or interested person.

(3) An official visitor has the following functions—

(a) to refer matters raising any significant public mental health issues or patient safety or care or treatment issues to the Principal official visitor or any other appropriate person or body,

(b) to act as an advocate for patients to promote the proper resolution of issues arising in the mental health system, including issues raised by a designated carer or principal care provider of a patient or person detained under this Act,

(c) to inspect mental health facilities as directed by the Principal official visitor and in accordance with this Part,

(d) any other function conferred on official visitors by or under this or any other Act.

Schedule 4 has effect with respect to the Principal official visitor and official visitors.

(1) The Principal official visitor must ensure that 2 or more official visitors visit each mental health facility in accordance with the regulations.

(2) For the purposes of any such visit, at least one of the official visitors is to be a person referred to in section 129 (2) (a), (b) or (c) and at least one other of the official visitors is to be a person referred to in section 129 (2) (d).

(3) On a visit to a mental health facility, the official visitors must—

(b) so far as practicable, make any necessary inquiries about the care, treatment and control of voluntary patients and the patients or persons detained in the facility or who are subject to community treatment orders and being treated by the facility, and

(c) examine and sign the registers, books, records and other documents produced to them in accordance with this Part, and

(d) enter the fact of their visit in the official visitors book at the facility, together with any observations they think it appropriate to make.

(4) The official visitors must report to the Principal official visitor about each visit in accordance with any arrangements made by the Principal official visitor.

(5) A visit may be made with or without previous notice and at any time of the day or night, and be of such length, as the official visitors think appropriate.

(6) A visit may be made at the request of a designated carer or principal care provider of a patient or person treated at or by the mental health facility.

(1) The medical superintendent of a declared mental health facility or the administrator of a private mental health facility must do the following for the purposes of any visit by official visitors—

(b) permit the official visitors to see and to interview each patient or person detained in the facility or each affected person under a community treatment order being treated by the facility,

(c) give full and true answers to the best of their knowledge to all questions that the official visitors ask in relation to the facility, the patients and other persons or affected persons,

(d) produce to the official visitors any registers, books, records, orders, certificates, returns and other documents relating to the admission, care, treatment and control of the patients and other persons and the discharge of persons required by the official visitors.

(2) The administrator of a private mental health facility must, at the end of each month, report in writing to the medical superintendent as to the functions exercised under this section by the administrator during that month.

Nothing in this Part prevents an official visitor from reporting to the Minister with respect to any matter arising from or relating to the exercise by the official visitor of the official visitor’s functions.

(1) A patient or person detained in a mental health facility or an affected person under a community treatment order who is being treated by a mental health facility, or a designated carer or principal care provider of any such person, may notify the medical superintendent or director of community treatment of the facility, orally or in writing, that the patient or person or carer or care provider desires to see an official visitor.

(2) The medical superintendent or director must inform an official visitor of the patient’s or person’s or designated carer’s or principal care provider’s desire to see an official visitor not later than 2 days after receiving the notification.

(1) A person referred to in section 18 (2) who is detained in a health facility other than a mental health facility, or a designated carer or the principal care provider of the person, may notify the medical superintendent of the health facility that the person, carer or care provider desires to see an official visitor.

(2) The medical superintendent must inform the Principal official visitor of the person’s or carer’s or care provider’s desire to see an official visitor not later than 2 days after receiving the notification.

(3) The Principal official visitor is to arrange for an official visitor to visit the health facility as soon as reasonably practicable.

(4) The regulations may make provision for or with respect to the following—

(b) the obligations of the medical superintendent of a health facility in respect of a visit under this section.

A matter or thing done or omitted by an official visitor does not, if the matter or thing was done or omitted in good faith for the purpose of executing this Act or the regulations, subject the official visitor personally to any action, liability, claim or demand.

(1) The Secretary may appoint a person as an accredited person for the purposes of this Act.

(2) The Secretary may appoint the holder of an office as an accredited person and may impose conditions on the exercise by a person or the holder of an office of the functions of an accredited person.

(1) The Secretary may inquire into the administration, management and services of a mental health facility and for that purpose may cause any mental health facility to be visited and inspected from time to time by officers authorised by the Secretary.

(2) A visit or inspection may be carried out by an authorised officer appointed under section 124 of the Health Services Act 1997 , if the officer’s certificate of authority is expressed to extend to such visits or inspections.

(3) On an inspection, an authorised officer—

(a) may, at any time, make any inspections, investigations and inquiries with respect to the care, treatment or control of patients or persons detained in a facility or with respect to the management of a facility the authorised officer considers necessary, and

(b) must make any such inspections, investigations and inquiries that are directed by the Secretary.

(4) An inspection may be made with or without previous notice and at any time of the day or night, and be of such length, as the authorised officer thinks appropriate.

(1) An authorised officer inspecting a mental health facility under this Part may, by notice in writing, require a person to do any one or more of the following—

(a) to furnish to the authorised officer the information required by the authorised officer concerning any of the matters with respect to which an authorised officer is, by or under this Part, authorised to make inspections, investigations and inquiries,

(b) to attend and give evidence before the authorised officer concerning any such matters,

(c) to produce all books, documents or other records in the person’s custody or under the person’s control concerning any such matters.

(2) An authorised officer may require evidence to be given on oath, and either orally or in writing, and for that purpose the authorised officer may administer an oath.

(3) A person must not, without reasonable excuse, refuse or fail to comply with a requirement made under this section.

(1) A person is not excused from a requirement under this Part to make a statement, to give or furnish information, to answer a question or to produce a document on the ground that the statement, information, answer or document might incriminate the person or make the person liable to a penalty.

(2) However, any statement made or any information or answer given or furnished by a natural person in compliance with a requirement under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Part) if—

(a) the person objected at the time to doing so on the ground that it might incriminate the person, or

(b) the person was not warned on that occasion that the person may object to making the statement or giving or furnishing the information or answer on the ground that it might incriminate the person.

(3) Any document produced by a person in compliance with a requirement under this Part is not inadmissible in evidence against the person in criminal proceedings on the ground that the document might incriminate the person.

(4) Further information obtained as a result of a document produced, a statement made or information or answer given or furnished in compliance with a requirement under this Part is not inadmissible on the ground—

(a) that the document, statement, information or answer had to be produced, made, given or furnished, or

(b) that the document, statement, information or answer might incriminate the person.

(1) There is constituted by this Act a Mental Health Review Tribunal.

(2) The Tribunal has the functions conferred or imposed on it by or under this Act or any other law.

(3) Schedule 5 has effect with respect to the Tribunal.

(1) The Tribunal consists of the following members appointed by the Governor—

(b) 1 or more Deputy Presidents of the Tribunal who may be appointed as full-time or part-time members,

(c) other members (if any) who may be appointed as full-time or part-time members.

(2) The members (other than the President and any Deputy President) are to be appointed from the following classes of persons—

(b) psychiatrists,

(c) persons having, in the opinion of the Governor, other suitable qualifications or experience, including at least 1 person selected from a group of persons who are nominated by consumer organisations.

(3) The members are to include 1 or more women and 1 or more persons of ethnic background and a different person is to be appointed to satisfy each of those qualifications, even though a person so appointed may possess both of those qualifications.

(4) If, at the time at which an appointment is required to be made of a person selected from a group of persons who are nominated by consumer organisations no such group has been nominated, the Governor may appoint as a member instead a person who, in the opinion of the Governor, has suitable qualifications or experience.

(1) A Registrar and such persons as may be necessary to enable the Tribunal to exercise its functions may be employed in the Public Service under the Government Sector Employment Act 2013 .

Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Tribunal makes use of) may be referred to as officers or employees, or members of staff, of the Tribunal. Section 47A of the Constitution Act 1902 precludes the Tribunal from employing staff.

(2) The Registrar has the functions conferred or imposed on the Registrar by or under this Act or any other law or by the Tribunal in the exercise of its functions.

(1) The Tribunal is to have a seal of which judicial notice is to be taken.

(2) Every document requiring authentication by the Tribunal is sufficiently authenticated without the seal of the Tribunal if it is signed by the President or a Deputy President.

Judicial notice is to be taken of the signature of the President, a Deputy President or the Registrar of the Tribunal when appearing on a document issued by the Tribunal.

No proceedings lie against the Tribunal, a member of the Tribunal or a member of staff of the Tribunal for or on account of any act, matter or thing done or ordered to be done or omitted or suffered to be done by the Tribunal, member or member of staff, and purporting to be done, ordered, omitted or suffered for the purposes of carrying out the provisions of this or any other Act, if the Tribunal, member or member of staff has acted in good faith.

Section 27 of the Defamation Act 2005 makes provision for a defence of absolute privilege in respect of publications of defamatory matter in the course of proceedings of the Tribunal.

Section 27 (2) (b) of the Defamation Act 2005 provides that the defence of absolute privilege is available in respect of defamatory matter that is published in the course of proceedings of an Australian court or Australian tribunal, including (but not limited to) the following—

(a) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process),

(b) the publication of matter while giving evidence before the court or tribunal,

(c) the publication of matter in any judgment, order or other determination of the court or tribunal.

The term Australian tribunal is defined in section 4 of that Act to mean any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).

The Mental Health Review Tribunal is an Australian tribunal for the purposes of the Defamation Act 2005 because it is a tribunal that has the power under section 151 (5) of this Act to take evidence from witnesses under oath.

(1) As soon as practicable after 1 September, but on or before 1 December, in each year, the President must prepare and forward to the Minister a report as to the exercise by the Tribunal of its functions.

(2) Without limiting subsection (1), the report is to include the following matters relating to persons taken to mental health facilities under Part 2 of Chapter 3—

(b) the number of persons detained as mentally ill persons or mentally disordered persons,

(c) the number of persons in respect of whom a mental health inquiry was held,

(d) the number of persons detained as involuntary patients.

(3) The report is also to include any matters the Minister may direct or that are prescribed by the regulations.

(4) The Minister must lay the report, or cause it to be laid, before each House of Parliament as soon as practicable after receiving the report.

(5) Any report required to be made under this section may be included in the annual reporting information prepared for the Ministry of Health under the Government Sector Finance Act 2018 .

(1) The President may delegate to any of the following persons any of the functions of the President, other than this power of delegation—

(b) the Registrar of the Tribunal,

(c) a person of a class prescribed by the regulations.

(2) A delegate may sub-delegate to a person referred to in subsection (1) (a), (b) or (c) any function delegated by the President if the delegate is authorised in writing to do so by the President.

This Part, and any regulations made under this Part, apply to any proceedings of the Tribunal under this or any other Act.

(1) The Tribunal is to be constituted by one or more members nominated by the President for the exercise of its functions.

(2) For the purpose of exercising any of its functions (other than in relation to mental health inquiries or under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ), the Tribunal must consist of at least 1 member who is to be the President, a Deputy President or a member who is an Australian legal practitioner.

(2A) For the purpose of conducting a mental health inquiry, the Tribunal must consist of at least 1 member who is to be the President or a Deputy President or a member qualified to be appointed as a Deputy President.

(3) The President may nominate other members of the following kinds—

(b) a member referred to in section 141 (2) (c).

(4) (Repealed)

(5) The regulations may make provision for or with respect to the members who are to constitute the Tribunal for the exercise of any of its functions.

s 150: Am 2008 No 79, Sch 2 [30] [31]; 2008 No 107, Sch 16 [22]–[24]; 2010 No 96, Sch 1 [7]; 2020 No 12, Sch 3.17[10].

(1) Meetings of the Tribunal are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 , the regulations and as the proper consideration of the matters before the Tribunal permit.

(2) In determining any matter relating to a forensic patient, correctional patient or other patient or a person detained in a mental health facility, or any matter relating to a community treatment order, the Tribunal is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate and as the proper consideration of the matter before the Tribunal permits.

(3) The proceedings of the Tribunal are to be open to the public.

(4) However, if the Tribunal is satisfied that it is desirable to do so for the welfare of a person who has a matter before the Tribunal or for any other reason, it may (of its own motion or on the application of the person or another person appearing at the proceedings) make any one or more of the following orders—

(b) an order prohibiting or restricting the publication or broadcasting of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence before the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

Section 162 prohibits the publication or broadcasting of the name of a person involved in Tribunal proceedings or other material that may identify any such person, except with the consent of the Tribunal.

(5) The President or a Deputy President or the chairperson of a meeting of the Tribunal may administer an oath to any person giving evidence before the Tribunal.

(6) The President or a Deputy President of the Tribunal has, in the exercise of his or her functions as a member, the same protections and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.

The fact that a person is suffering from mental illness or an intellectual disability or developmental disability or is suffering from a mental condition that is not a mental illness or an intellectual disability or developmental disability is presumed not to be an impediment to the representation of the person by an Australian legal practitioner before the Tribunal.

(1) A member of the Tribunal must not determine, for the purposes of this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 , that a person is a mentally ill person or a mentally disordered person unless the member is satisfied, on the balance of probabilities, that the person is a mentally ill person or a mentally disordered person.

(2) In determining whether a person is a mentally ill person, a member is to give due regard to the following—

(b) any evidence given to the Tribunal by an expert witness concerning the person’s cultural background and its relevance to any question of mental illness.

(1) A person appointed to assist the Tribunal in a matter may appear before the Tribunal in relation to any matter in respect of which the person is appointed.

(2) A forensic patient or correctional patient having any matter before the Tribunal must, unless the forensic patient or correctional patient decides that he or she does not want to be represented, be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice.

(2A) An assessable person who is before the Tribunal for a mental health inquiry must, unless the person decides that he or she does not want to be represented, be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice.

(3) A patient, other than a forensic patient or correctional patient, or a person detained in a mental health facility having any matter before the Tribunal may be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice.

(4) A person who is under the age of 16 years who has a matter before the Tribunal must be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice, unless the Tribunal decides that it is in the best interests of the person to proceed without the person being so represented.

(5) This section applies to a patient or person who is absent from proceedings held by the Tribunal in relation to the patient or person in the same way as it applies to a patient or person who appears before the Tribunal.

s 154: Am 2008 No 79, Sch 2 [35]; 2008 No 107, Sch 16 [25]; 2014 No 85, Sch 1 [79]; 2018 No 2, Sch 4 [9].

(1) The Tribunal may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit.

(2) If the Tribunal adjourns proceedings, a person having a matter before the Tribunal who is detained in a mental health facility is to continue to be detained in the facility unless the person is discharged or allowed to be absent from the facility under another provision of this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 .

(1) A patient or person having any matter before the Tribunal is, unless the Tribunal otherwise determines, entitled to inspect or otherwise have access to any medical records in the possession of any person relating to the patient or person.

(2) A representative of a person having any matter before the Tribunal is entitled, at any time before or during the consideration of that matter by the Tribunal, to inspect or otherwise have access to any medical records in the possession of any person relating to the firstmentioned person.

(3) Subject to any order or direction of the Tribunal, in relation to an inspection under subsection (2) of, or other access under that subsection to, any medical record relating to a person—

(a) if a medical practitioner warns the representative of the person that it may be harmful to communicate to the person, or any other person, specified information contained in those medical records, the representative is to have full and proper regard to that warning, and

(b) the representative is not obliged to disclose to the person any information obtained by virtue of the inspection or other access.

(1) The Tribunal may of its own motion or on the application of a person having any matter before the Tribunal issue a summons in the prescribed form requiring the person to whom the summons is addressed to do either or both of the following things—

(b) to attend at a meeting of the Tribunal and to produce any documents in the possession or under the control of the person relating to any matter before the Tribunal and specified in the summons.

(2) For the purposes of subsection (1), a summons is issued by the Tribunal if it is signed by the President or a Deputy President.

(3) The regulations may make provision for or with respect to authorising compliance with a summons to produce any documents by the production of the documents at a place specified in the summons at any time before the meeting of the Tribunal at which the documents are required to be produced.

(4) A person to whom a summons is addressed is entitled to receive—

(b) if the summons was issued by the Tribunal on the application of a person having any matter before the Tribunal, from the person,

(5) A person—

(b) to whom, at the time of service, is tendered an amount that is sufficient to cover the person’s travelling and other out-of-pocket expenses in attending the meeting of the Tribunal specified in the summons and producing anything required by the summons to be produced,

A person having any matter before the Tribunal who is unable to communicate adequately in English but who is able to communicate adequately in another language is entitled to be assisted, when appearing before the Tribunal in relation to the matter, by a competent interpreter.

(1) Proceedings before the Tribunal are to be recorded.

(2) Regulations may be made for or with respect to the manner in which the evidence may be recorded and the authentication of evidence or of transcripts of evidence given in proceedings.

(3) The regulations may provide for the circumstances in which evidence given in proceedings is to be transcribed.

(1) Subject to this Part and the regulations, the procedure for the calling of, and for the conduct of business at, any meeting of the Tribunal is to be as determined by the Tribunal.

(2) The regulations may make provision for or with respect to the following matters—

(a) the procedure for the calling of, and for the conduct of business at, any meeting of the Tribunal,

(b) the provision of assistance to the Tribunal by relevant qualified persons for the purposes of determining any matter,

(c) representations that may be made by victims in relation to proceedings before the Tribunal and victim impact statements,

(d) notification of family members, designated carers, principal care providers and victims of persons of proceedings before the Tribunal,

(e) reports and information required to be provided to the Tribunal, including provisions relating to the matters to be dealt with in reports and the making of reports available to the Tribunal,

(e1) conditions for the use of audio or audio visual links and other matters relating to the use of audio or audio visual links in Tribunal proceedings,

(f) the recording of proceedings and determinations of the Tribunal,

(g) the service of documents on the Tribunal,

(h) making written reasons for decisions or determinations of the Tribunal available,

(i) (Repealed)

(j) notification of victims of Tribunal decisions in proceedings relating to forensic patients or correctional patients,

(k) notification of victims of termination of status of persons as forensic patients.

(3) The President may issue practice directions, not inconsistent with this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 or any regulations under this Act or that Act, for or with respect to the practice and procedure of the Tribunal.

s 160: Am 2008 No 79, Sch 2 [37] [38]; 2008 No 107, Sch 16 [26]; 2018 No 85, Sch 5; 2020 No 12, Sch 3.17[14] [15].

A person must not refuse, neglect or for any reason fail to obey or comply with an order, direction, decision or determination, under this or any other Act, of the Tribunal.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person—

(b) who appears as a witness before the Tribunal in any proceedings, or

(c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ,

(a) in the case of an individual—50 penalty units or imprisonment for 12 months, or both, or

(b) in the case of a corporation—100 penalty units.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person.

(1) The Tribunal may request the Ministry of Health, a local health district, the Commissioner of Corrective Services, the Secretary of the Department of Justice or any other person or body prescribed by the regulations to provide the Tribunal with information as to whether or not action has been taken, and what actions have been taken, in relation to orders made by the Tribunal under this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 .

(2) A person or body must comply with any reasonable request made by the Tribunal of the person or body under this section.

s 162A: Ins 2008 No 79, Sch 2 [41]. Am 2010 No 97, Sch 2.18; 2011 No 4, Sch 2.20; 2015 No 58, Sch 3.60 [3]; 2020 No 12, Sch 3.17[17].

(1) A person may appeal to the Court against—

(b) the failure or refusal of the Tribunal to make a determination with respect to the person in accordance with the provisions of this Act.

(2) An appeal is to be made subject to and in accordance with the rules of the Court.

(1) The Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions of the Tribunal in respect of the subject- matter of the appeal, in addition to any other functions and discretions it has.

(2) An appeal is to be by way of a new hearing and new evidence or evidence in addition to, or in substitution for, the evidence given in relation to the determination of the Tribunal, or the failure or refusal of the Tribunal to make a determination, in respect of which the appeal is made may be given on the appeal.

(3) The Court is to have regard to the provisions of this Act and any other matters it considers to be relevant in determining an appeal.

(4) The decision of the Court on an appeal is, for the purposes of this or any other Act or instrument, taken to be, where appropriate, the final determination of the Tribunal and is to be given effect to accordingly.

(5) In hearing and deciding an appeal, the Court may be assisted by 2 assessors selected by the Court from the panel nominated for the purposes of this Chapter, if the Court considers it appropriate to do so.

(6) An assessor is to sit with the Court in the hearing of an appeal and has power to advise, but not to adjudicate, on any matter relating to the appeal.

(1) The Minister must, from time to time, nominate in writing to the Chief Justice a panel of persons who, in the opinion of the Minister, have appropriate qualifications and sufficient experience to act as assessors in the hearing of appeals by the Court under this Chapter or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 .

(2) A nomination made under this section is to be accompanied by an oath taken by the person nominated, in the form prescribed by the regulations.

(3) Sections 11, 11A and 12 of the Oaths Act 1900 apply to and in respect of an oath required to be taken under this section as if the oath were an oath required to be taken under Part 2 of that Act.

(1) The Court must order the medical superintendent of a mental health facility to bring a person before the Court for examination at a time specified in the order if the Court receives information on oath or has reason or cause to suspect—

(a) that the person is not a mentally ill person or a mentally disordered person and is detained in the facility, or

(b) that the person is a mentally ill person or a mentally disordered person detained in the facility and that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person, or

(c) that the person is a forensic patient or correctional patient who is wrongly detained in the facility.

(2) The Court must order that a person (other than a forensic patient or correctional patient) examined under this section be immediately discharged from the mental health facility in which the person is detained if, on examination, the medical superintendent is unable to prove on the balance of probabilities—

(b) if the person is a mentally ill person or a mentally disordered person, that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

(3) The Court must order that a forensic patient or correctional patient examined under this section be immediately transferred to a correctional centre (within the meaning of the Crimes (Administration of Sentences) Act 1999 ) if, on examination under this section, the medical superintendent is unable to prove that the patient is not wrongly detained in the mental health facility.

Nothing in this Chapter derogates from or otherwise affects the jurisdiction of the Court under any Act or other law.

The Tribunal or any member of the Tribunal is not liable for any costs relating to a determination of the Tribunal, or the failure or refusal of the Tribunal to make a determination, in respect of which an appeal is made under this Chapter, or of the appeal.

The object of this Chapter is to make provision with respect to the following matters—

(b) the interstate recognition of documents enabling detention of persons under mental health legislation,

(c) the treatment of interstate persons and persons in this State subject to community treatment orders or similar orders made in other States,

(d) the apprehension of persons subject to certain interstate warrants or orders, or otherwise liable to apprehension, under mental health legislation.

In this Chapter—

civil patient means a person who is involuntarily detained, or who may be detained, under a corresponding law that corresponds to Chapter 3.

corresponding law means a law declared by the regulations to be a law corresponding to this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 for the purposes of this Chapter.

interstate community treatment order means an order made under a corresponding law that is of a class declared by the regulations to be an interstate community treatment order for the purposes of this Chapter.

mental health laws of this State include this Act, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and any regulations made under this Act or that Act.

(1) The Minister may enter into an agreement with a Minister of another State for or with respect to any of the following—

(b) the transfer, detention, care, treatment and apprehension of persons in this State and the other State under mental health laws,

(c) the making of community treatment orders in respect of residents of this State and the other State under mental health laws,

(d) the recognition, implementation and enforcement of community treatment orders of this State in the other State and the recognition, implementation and enforcement of community treatment orders of the other State in this State,

(e) administrative matters and other matters ancillary to, or consequential on, any such matters or any other matters contained in this Chapter.

(2) Nothing in this section limits the power of the Minister to enter into any agreement relating to mental health laws.

(1) The regulations may declare that a specified law of another State relating to mental health is a law corresponding to this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 for the purposes of this Chapter.

(2) The regulations may declare that a specified class of order relating to the treatment of persons in the community under a corresponding law of another State is an interstate community treatment order for the purposes of this Chapter.

Subject to the provisions of any agreement under this Part, an authorised medical officer or other person authorised by the Minister for the purposes of this section, may exercise any function conferred on him or her by or under a corresponding law or an agreement under this Part.

(1) A person who may be taken to and detained in a mental health facility under Chapter 3 or under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 may be taken to a mental health facility in another State instead of a mental health facility in this State, if this is permitted by or under a corresponding law of the other State.

(2) A person may be taken to a mental health facility in another State under this section by—

(a) a person who is authorised by this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 to take a person to a declared mental health facility, or to apprehend a person and take the person to a declared mental health facility, if this is permitted by or under the law of the other State, or

(b) any other person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.

(3) The regulations may make provision for or with respect to the following matters—

(b) the persons (including interstate persons) who may take any such person to a mental health facility in another State under this section,

(c) the mental health facilities to which a person may be taken under this section and the places taken to be mental health facilities of another State for the purposes of this section.

A mental health certificate ceases to have any effect under this Act if the person concerned is taken to and detained in a mental health facility in another State.

(1) A person who is detained as an involuntary patient or forensic patient in a mental health facility in this State may be transferred to a mental health facility in another State, if the transfer is permitted by or under a provision of a corresponding law of the other State and is in accordance with the regulations.

(2) A person who is transferred to a mental health facility in another State under this section ceases to be an involuntary patient or forensic patient on admission to the facility.

(3) A person may be taken to a mental health facility in another State under this section by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.

(4) The regulations may make provision for or with respect to the following matters—

(a) procedures for authorising the transfer of a patient under this section and for notifying any such transfer or proposed transfer,

(b) criteria for authorising the transfer of a patient under this section,

(c) the handing over of custody of any such patient by persons in this State,

(d) the persons (including interstate persons) who may take a patient to a mental health facility in another State under this section,

(e) the mental health facilities to which a patient may be taken under this section and the places taken to be mental health facilities for the purposes of this section.

(5) Section 80 does not apply to a transfer under this section.

(1) A person who may be taken to and detained in a mental health facility in another State under a corresponding law of that State may instead be taken to and detained in a declared mental health facility in this State.

(2) A person may be taken to a declared mental health facility in this State under this section by—

(a) a person who is authorised by this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 to take a person to a declared mental health facility, or to apprehend a person and take the person to a declared mental health facility, if this is permitted by or under the law of the other State, or

(b) any other person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.

(3) The regulations may make provision for or with respect to the following matters—

(b) the persons (including interstate persons) who may take any such person to a declared mental health facility in this State under this section,

(c) the declared mental health facilities to which a person may be taken under this section.

(1) This Act applies to a person who is a civil patient who is taken to and detained in a mental health facility under this Division in the same way as it applies to a person taken to and detained in a mental health facility under Part 2 of Chapter 3.

(2) This Act and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 apply to a person (other than a civil patient) who is taken to and detained in a mental health facility under this Division in the same way as they apply to a person detained in a mental health facility as a forensic patient.

(1) A person who is involuntarily detained as a patient in a mental health facility in another State under a corresponding law may be transferred to a declared mental health facility in this State, if the transfer is authorised under a provision of a corresponding law of the other State and accepted by the medical superintendent of the mental health facility in this State.

(2) A person may be taken to a declared mental health facility in this State under this section by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.

(3) However, a medical superintendent may not accept the transfer of a person unless the medical superintendent considers that it is likely that the person is a mentally ill person or a mentally disordered person.

(4) The regulations may make provision for or with respect to the following matters—

(b) the persons (including interstate persons) who may take a patient to a mental health facility in this State under this section,

(c) the receiving of custody of any such person by persons in this State,

(d) the period within which any such person must be reviewed by the Tribunal after being transferred to a mental health facility in this State.

(1) A person who is a civil patient who is transferred to a mental health facility under this Division is taken to be an involuntary patient and the provisions of this Act apply as if the person first became an involuntary patient on the date of the person’s transfer to a mental health facility in this State.

(2) A person (other than a civil patient) who is transferred to a mental health facility under this Division is taken to be a forensic patient and the provisions of this Act and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 apply as if the person first became a forensic patient on the date of the person’s transfer to a mental health facility in this State.

A community treatment order may be made under Part 3 of Chapter 3 or under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 for an affected person who does not reside in this State, if the mental health facility implementing the order is located in this State.

(1) A mental health facility of another State, or any person who provides services on behalf of any such mental health facility, may treat a person subject to a community treatment order in this State, and exercise any other functions of a mental health facility under this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 , for the purposes of implementing and enforcing the community treatment order.

(2) The regulations may make provision for or with respect to the following matters—

(a) the bodies or places that are taken to be mental health facilities of another State for the purposes of this section,

(b) when the treatment may be given or functions may be exercised under subsection (1),

(c) the effect in this State of a community treatment order being recognised by another State.

A declared mental health facility, or any person who provides services on behalf of a declared mental health facility, may treat a person subject to an interstate community treatment order, and exercise any other functions for the purposes of implementing and enforcing the interstate community treatment order, if permitted to do so by the law of another State.

(1) An interstate community treatment order may be recognised in this State as if it were a community treatment order made by the Tribunal under this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 , if the conditions for recognition set out in the regulations are met.

(2) An interstate community treatment order recognised under this section is taken to be a community treatment order made under this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and this Act and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 apply accordingly, except as provided by the regulations.

(3) The regulations may make provision for or with respect to the declared mental health facilities that may give effect to an interstate community treatment order recognised under this section.

A warrant or an order, or other document authorising the apprehension of a person, under a corresponding law is recognised in this State if the conditions for recognition set out in the regulations are met.

(1) A person who is the subject of a warrant or an order or other document recognised in this State, or who is otherwise liable to be apprehended, under a provision of a corresponding law under which the person may be apprehended and taken to a mental health facility may be apprehended at any time—

(b) by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.

(2) On being apprehended the person may be conveyed to and detained in a mental health facility in this State or the other State (if this is permitted by or under a provision of a corresponding law of the other State).

(3) This Act applies to a person conveyed to and detained in a mental health facility under this section as if the person had been taken to and detained in a mental health facility under Part 2 of Chapter 3.

The regulations may make provision for or with respect to the following matters—

(a) the kinds of warrants, orders or other documents that may be recognised in this State for the purposes of this Part,

(b) the conditions (if any) to be met before a warrant, order or other document can be recognised in this State,

(c) the circumstances when a person is taken to be liable to be apprehended under a corresponding law,

(d) the persons (including interstate persons) who may apprehend a person under this Part,

(e) the mental health facilities and places to which a person can be taken under this Part (whether in this State or another State),

(f) the actions (including transfer to the other State) that may be taken in respect of a person detained under this Part.