Mental Health Act 1996

Mental Health Act 1996

An Act to make provision for the care and treatment of persons with mental illnesses and for safeguarding their rights

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Mental Health Act 1996 .

2.   Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3.   Interpretation

In this Act, unless the contrary intention appears –

approved hospital means a hospital or part of a hospital approved by the Minister for the care and treatment of involuntary patients with mental illnesses;

approved medical practitioner means a medical practitioner who is approved by the Minister under section 12 as an appropriate person to exercise the functions of an approved medical practitioner under this Act;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] approved psychiatric nurse means a psychiatric nurse who is approved by the controlling authority of an approved hospital or the Chief Forensic Psychiatrist to exercise powers conferred under this Act;

assessment centre means –

(a) an approved hospital; or

(b) a place approved by the Minister for the assessment of mental illness;

[Section 3 Amended by No. 32 of 2005, s. 4, Applied:11 Jul 2005] authorisation for temporary admission means an authorisation under section 44A for the temporary admission as an involuntary patient to an approved hospital of a patient to whom a community treatment order applies;

authorised officer means a person who under section 13 is an authorised officer for the purposes of the provision in which the expression is used;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] authorised person means a person, or a person of a class of persons, authorised by the Chief Forensic Psychiatrist or the controlling authority of a secure mental health unit for the purposes of Part 10A or a provision of that Part, as specified in the authorisation;

Board means the Guardianship and Administration Board established under the Guardianship and Administration Act 1995 ;

bodily restraint means a form of physical or mechanical restraint that prevents the free movement of the limbs;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] Chief Forensic Psychiatrist means the Chief Forensic Psychiatrist appointed under section 11A ;

community treatment order means a community treatment order made and in force under Part 7 ;

continuing care order means a continuing care order made and in force under section 28 (1) ;

contravene includes fail to comply with;

controlling authority means –

(a) [Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] in the case of a hospital or assessment centre administered under the Health (Regional Boards) Act 1991 , the Board maintaining and operating the hospital or assessment centre under that Act; or

(b) [Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] in the case of any other hospital, assessment centre or secure mental health unit, the body or person specified to be the controlling authority in the Minister's approval under section 9 , 10 or 10A ;

corresponding law means a law of another State or Territory providing for the care and treatment of persons with mental illnesses;

Court means the Supreme Court;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] Deputy President means the Deputy President of the Mental Health Tribunal;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] determination of the Mental Health Tribunal includes an order, direction or requirement;

Director means the Director of Corrective Services;

[Section 3 Amended by No. 76 of 2009, s. 20, Applied:11 Dec 2009] eligible persons register has the same meaning as in the Corrections Act 1997 ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] forensic patient means a person who is admitted to a secure mental health unit in accordance with section 72A and who has not been discharged from that secure mental health unit;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] Forensic Tribunal means the Forensic Tribunal established by section 73T ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] Forensic Tribunal Member Register means a register kept under section 74L ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] functions includes duties;

guardian means –

(a) a guardian appointed under a guardianship order; or

(b) an enduring guardian appointed under Part 5 of the Guardianship and Administration Act 1995 ;

guardianship order means an order under the Guardianship and Administration Act 1995 appointing a person as a guardian;

harm includes serious mental or physical deterioration;

hospital means a place equipped for the care of patients on a live-in basis (whether or not provision is also made for the treatment of outpatients);

initial order means an order made under section 26 (1) for the admission and detention of a person as an involuntary patient in an approved hospital;

[Section 3 Amended by No. 32 of 2005, s. 4, Applied:11 Jul 2005]

[Section 3 Amended by No. 32 of 2005, s. 4, Applied:11 Jul 2005] involuntary patient means –

(a) a person in respect of whom an order is in force under this Act; or

(b) a person who is admitted to an approved hospital on the authority of an authorisation for temporary admission;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] jurisdiction of the Mental Health Tribunal includes all powers and functions of the Mental Health Tribunal;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] [Section 3 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008]

[Section 3 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] legal practitioner means an Australian legal practitioner;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] Mental Health Tribunal means the Mental Health Review Tribunal continued under section 48 as the Mental Health Tribunal;

mental illness has the meaning given by section 4 ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] official visitor means a person appointed as an official visitor under section 74P ;

[Section 3 Amended by No. 65 of 2007, s. 21, Applied:01 Jan 2008] ordinary member, of the Forensic Tribunal, means a member other than the President of the Board or Mental Health Tribunal;

parent includes a guardian and a person acting in loco parentis;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] patient means a person admitted as a patient to an approved hospital, assessment centre or secure mental health unit under this Act;

person responsible has the meaning given by section 5 ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] premises includes a part of premises;

[Section 3 Amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004]

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] President means the President of the Mental Health Tribunal;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] prison means –

(a) a prison within the meaning of the Corrections Act 1997 ; or

(b) a detention centre within the meaning of the Youth Justice Act 1997 ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] prisoner means –

(a) a prisoner within the meaning of the Corrections Act 1997 ; or

(b) a detainee within the meaning of the Corrections Act 1997 ; or

(c) a person who is serving a sentence of detention imposed under the Youth Justice Act 1997 or is subject to an order under that Act remanding the person to a detention centre;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] psychiatric nurse means a registered nurse who is qualified to practise psychiatric nursing;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] psychiatrist means a registered medical practitioner who is a Fellow of the Royal College of Australian and New Zealand College of Psychiatrists or who has been registered either under section 21(2)(e) of the Medical Practitioners Registration Act 1996 to practise in the specialty of psychiatry or under section 21(2)(g) of that Act to practise as a psychiatrist in a declared area of need;

Public Guardian means the Public Guardian under the Guardianship and Administration Act 1995 ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] registrar means the registrar of the Mental Health Tribunal;

regulations means regulations made and in force under this Act;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] restriction order means a restriction order made under the Criminal Justice (Mental Impairment) Act 1999 or Sentencing Act 1997 ;

seclusion means the confinement of a person alone in a room of which the doors and windows are locked from the outside;

Secretary means the Secretary of the Department;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] Secretary (Corrections) means the Secretary of the responsible Department in relation to the Corrections Act 1997 ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] Secretary (Youth Justice) means the Secretary of the responsible Department in relation to the Youth Justice Act 1997 ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] secure institution means an institution approved to be a secure institution under section 73D ;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] secure mental health unit means premises, or a part of premises, approved by the Minister under section 10A to be a secure mental health unit;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] sentence of imprisonment includes a sentence of detention imposed under the Youth Justice Act 1997 ;

[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]

[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006]

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] statutory authority means an incorporated or unincorporated body which is established, constituted or continued by or under an Act or under the royal prerogative, being a body which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister of the Crown or another statutory authority;

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] supervision order means a supervision order made under the Criminal Justice (Mental Impairment) Act 1999 or Sentencing Act 1997 ;

[Section 3 Amended by No. 76 of 2009, s. 20, Applied:11 Dec 2009]

[Section 3 Amended by No. 72 of 2005, s. 4, Applied:20 Feb 2006] youth detainee means –

(a) a person who is serving a sentence of detention imposed under the Youth Justice Act 1997 and, if not a forensic patient, would be serving that sentence in a detention centre; or

(b) a person who is subject to an order under that or another Act remanding the person to a detention centre.

4.   Meaning of "mental illness"

(1)  A mental illness is a mental condition resulting in –

(a) serious distortion of perception or thought; or

(b) serious impairment or disturbance of the capacity for rational thought; or

(c) serious mood disorder; or

(d) involuntary behaviour or serious impairment of the capacity to control behaviour.

(2)  A diagnosis of mental illness may not be based solely on –

(a) antisocial behaviour; or

(b) intellectual or behavioural nonconformity; or

(c) intellectual disability; or

(d) intoxication by reason of alcohol or a drug.

5.   Meaning of "person responsible"

(1)  In this Act, person responsible for another person means –

(a) where the other person is under 18 years and has a spouse, the spouse; or

(b) where the other person is under 18 years and has no spouse, his or her parent; or

(c) where the other person is of or over the age of 18 years, one of the following persons in order of priority:

(i) his or her guardian;

(ii) his or her spouse;

(iii) the person having the care of the other person;

(iv) a close friend or relative of the other person.

(2)  [Section 5 Subsection (2) substituted by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Despite subsection (1) , if there is in force a care and protection order under the Children, Young Persons and Their Families Act 1997 placing a person under the guardianship of the Secretary, within the meaning of that Act, or another person, the

person responsible for that first-mentioned person means the Secretary or that other person under whose guardianship that first-mentioned person is placed by the order.

(3)  The circumstances in which a person is to be regarded as having the care of another person include, but are not limited to, the case where the person, otherwise than for remuneration, whether from the other person or any other source, regularly –

(a) provides domestic services and support to the other person; or

(b) arranges for the other person to be provided with domestic services and support.

(4)  A person who resides in a hospital, nursing home, group home, boarding house or hostel or any other similar facility at which he or she is cared for by some other person is not, by reason only of that fact, taken to be in the care of that other person and is taken to remain in the care of the person in whose care he or she was immediately before residing in such a facility.

(5)  For the purposes of this section –

(a) a reference to a spouse is to be read as a reference to a spouse who is not under guardianship and with whom the relevant person has a close and continuing relationship; and

(b) a person is taken to be a close friend or relative of another person if the person maintains both a close personal relationship with the other person through frequent personal contact and a personal interest in the other person's welfare; and

(c) a person is taken not to be a close friend or relative of another person if the person is receiving remuneration (whether from the other person or some other source) for any services that he or she performs for the other person in respect of the other person's care; and

(d) a reference to remuneration is taken as not including a reference to a carer's pension; and

(e) a person is taken to be a close friend or relative of another person in circumstances specified by the President of the Board in guidelines issued under section 4 (5) (e) of the Guardianship and Administration Act 1995 .

5AA.   Meaning of "informed consent"

[Section 5AA Inserted by No. 72 of 2005, s. 5, Applied:20 Feb 2006]

(1)  A person is taken to have given informed consent to proposed medical treatment if, and only if, the following requirements are satisfied:

(a) the person is, in the opinion of the medical practitioner who is responsible for administering the proposed treatment, mentally capable of understanding the general nature and effect of the proposed treatment;

(b) the person, after being given the information required under subsection (2) , freely and voluntarily consents to the proposed treatment;

(c) the person has not withdrawn the consent.

(2)  The medical practitioner who is responsible for the administration of medical treatment to a person must give the person whose consent to medical treatment is sought –

(a) a clear explanation of the proposed treatment; and

(b) a description, without concealment or distortion, of the benefits and disadvantages of the treatment, including a statement of the risk of adverse consequences; and

(c) a description of alternative forms of treatment that may be available and their benefits and disadvantages; and

(d) clear answers to questions asked by the person; and

(e) a reasonable opportunity to obtain independent medical or other advice.

6.   Objects of Act

The objects of this Act are –

(a) to provide for the care and treatment of persons with mental illnesses in accordance with the best possible standards while at the same time safeguarding and maintaining their civil rights and identity; and

(b) [Section 6 Amended by No. 72 of 2005, s. 7, Applied:20 Feb 2006] to ensure that involuntary patients, forensic patients and persons subject to supervision orders or community treatment orders who have mental illnesses are provided with appropriate information about their statutory and other rights; and

(c) to provide for the making and review of orders for the involuntary admission, treatment and detention of involuntary patients with mental illnesses; and

(ca) [Section 6 Amended by No. 72 of 2005, s. 7, Applied:20 Feb 2006] to provide for the authorising of medical treatment by the Forensic Tribunal; and

(d) to provide for the monitoring and review of the mental health system; and

(e) to ensure that the services provided for persons with mental illnesses are equitable, comprehensive, coordinated, accessible and free from stigma and in particular to ensure that standards of care and treatment for those persons are at least equal to the standards of care and treatment for physical illnesses and disabilities; and

(f) to promote recognition in the community of the right of persons with mental illnesses to the best possible standards of care and treatment; and

(g) to ensure that all practicable measures are taken to prevent mental illness or to arrest or impede its progress at an early stage; and

(h) to reduce the adverse effects of mental illness on family life; and

(i) to encourage and contribute to the highest possible standards of –

(i) care and treatment for persons with mental illnesses; and

(ii) research into the causes of, and treatment for, mental illnesses; and

(j) [Section 6 Amended by No. 72 of 2005, s. 7, Applied:20 Feb 2006] to encourage the care and treatment of persons with mental illnesses in the community and to design and coordinate an integrated system of community support services for persons with mental illnesses who are being cared for in the community; and

(k) [Section 6 Amended by No. 72 of 2005, s. 7, Applied:20 Feb 2006] to ensure that, in relation to patients, all appropriate measures are taken to protect the safety of the patients and other persons.

7.   Principle of minimum interference with civil rights

[Section 7 Amended by No. 72 of 2005, s. 8, Applied:20 Feb 2006] In exercising powers conferred by this Act in relation to an involuntary patient, forensic patient or person subject to a supervision order or community treatment order, the following principles must be observed:

(a) [Section 7 Amended by No. 72 of 2005, s. 8, Applied:20 Feb 2006] restrictions on the liberty of the patient or person and interference with that patient's or person's rights, dignity and self-respect must be kept to the minimum consistent with the need to protect that patient or person and other persons and, in relation to a forensic patient, the good order and security of the secure mental health unit;

(b) [Section 7 Amended by No. 72 of 2005, s. 8, Applied:20 Feb 2006] effect must, if practicable, be given to that patient's or person's wishes so far as that is consistent with–

(i) [Section 7 Amended by No. 72 of 2005, s. 8, Applied:20 Feb 2006] that patient's or person's best interests; and

(ii) [Section 7 Amended by No. 72 of 2005, s. 8, Applied:20 Feb 2006] the need to protect that patient or person and other persons; and

(iii) [Section 7 Amended by No. 72 of 2005, s. 8, Applied:20 Feb 2006] in the case of a forensic patient, the good order and security of the secure mental health unit.

8.   Crown to be bound

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

PART 2 - Administration

Division 1 - Approval of hospitals and assessment centres

9.   Approval of hospitals

(1)  [Section 9 Subsection (1) amended by No. 72 of 2005, s. 9, Applied:20 Feb 2006] The Minister may, on application by the prospective controlling authority of a hospital that is intended to be an approved hospital, approve the hospital or part of the hospital for the care and treatment of involuntary patients with mental illnesses.

(2)  Before the Minister approves a hospital or part of a hospital under this section, the Minister must be satisfied that –

(a) the hospital, or the relevant part of the hospital, is properly equipped and staffed for the care and treatment of involuntary patients with mental illnesses; and

(b) [Section 9 Subsection (2) amended by No. 72 of 2005, s. 9, Applied:20 Feb 2006] the prospective controlling authority of the hospital is a suitable body or person to be in charge of a place approved for the care and treatment of involuntary patients with mental illnesses.

(3)  [Section 9 Subsection (3) substituted by No. 72 of 2005, s. 9, Applied:20 Feb 2006] An approval –

(a) is to specify who is the controlling authority for the approved hospital if the approved hospital is not to be maintained and operated by the State; and

(b) may be granted on any conditions the Minister considers appropriate.

10.   Approval of assessment centres

(1)  [Section 10 Subsection (1) amended by No. 72 of 2005, s. 10, Applied:20 Feb 2006] The Minister may, on application by the prospective controlling authority of premises that are intended to be an assessment centre, approve the premises as an assessment centre for the care and treatment of involuntary patients with mental illnesses.

(2)  Before the Minister approves an assessment centre under this section, the Minister must be satisfied that –

(a) the assessment centre is properly equipped and staffed for the care and treatment of involuntary patients with mental illnesses; and

(b) [Section 10 Subsection (2) amended by No. 72 of 2005, s. 10, Applied:20 Feb 2006] the prospective controlling authority of the assessment centre is a suitable body or person to be in charge of a place approved for the care and treatment of involuntary patients with mental illnesses.

(3)  [Section 10 Subsection (3) substituted by No. 72 of 2005, s. 10, Applied:20 Feb 2006] An approval –

(a) is to specify who is the controlling authority for the assessment centre if the assessment centre is not to be maintained and operated by the State; and

(b) may be granted on any conditions the Minister considers appropriate.

10A.   Approval of secure mental health units

[Section 10A Inserted by No. 72 of 2005, s. 11, Applied:20 Feb 2006]

(1)  The Minister, on the application of a prospective controlling authority of premises that are intended to be a secure mental health unit, may approve the premises to be a secure mental health unit for the care and treatment of persons subject to restriction orders.

(2)  Before the Minister approves a secure mental health unit under this section, the Minister must be satisfied that –

(a) the secure mental health unit is properly equipped and staffed for the care and treatment of forensic patients; and

(b) the prospective controlling authority is a suitable body or person to be in charge of a secure mental health unit.

(3)  An approval –

(a) is to specify who is the controlling authority for the secure mental health unit if the secure mental health unit is not to be maintained and operated by the State; and

(b) may be granted on any conditions the Minister considers appropriate.

11.   Revocation of approval

(1)  The Minister may, by notice in the Gazette, cancel an approval under this Division.

(2)  Before the Minister cancels an approval under this section, the Minister must –

(a) [Section 11 Subsection (2) amended by No. 72 of 2005, s. 12, Applied:20 Feb 2006] give the controlling authority of the approved hospital, assessment centre or secure mental health unit written notice of the proposed cancellation of the approval; and

(b) invite the controlling authority to make written representations to the Minister on the proposed cancellation within a reasonable period specified in the notice; and

(c) if the controlling authority makes written representations within the time allowed in the notice, consider the representations.

Division 1A - Chief Forensic Psychiatrist

11A.   Chief Forensic Psychiatrist

[Section 11A of Part 2 Inserted by No. 72 of 2005, s. 13, Applied:20 Feb 2006]

(1)  The Secretary may appoint –

(a) a State Service officer or State Service employee employed in the Department who is a psychiatrist; or

(b) with the consent of another Head of a State Service Agency, a State Service officer or State Service employee employed in that Agency who is a psychiatrist –

to be Chief Forensic Psychiatrist and that officer or employee may hold that office in conjunction with State Service employment.

(2)  The Chief Forensic Psychiatrist holds office for the period, and on the terms and conditions, specified in his or her instrument of appointment.

(3)  The Secretary may appoint –

(a) a State Service officer or State Service employee employed in the Department who is a psychiatrist; or

(b) with the consent of another Head of a State Service Agency, a State Service officer or State Service employee employed in that Agency who is a psychiatrist –

to act in the office of Chief Forensic Psychiatrist if the Chief Forensic Psychiatrist has died, resigned or been removed from office and a new Chief Forensic Psychiatrist has not been appointed.

(4)  A person appointed to act in the office of Chief Forensic Psychiatrist –

(a) may act in that office in conjunction with State Service employment; and

(b) while acting in that office, is taken to be the Chief Forensic Psychiatrist.

11B.   Role, functions and powers of Chief Forensic Psychiatrist

[Section 11B of Part 2 Inserted by No. 72 of 2005, s. 13, Applied:20 Feb 2006]

(1)  The Chief Forensic Psychiatrist is to report to the Secretary in relation to –

(a) the care and treatment of forensic patients and persons subject to supervision orders; and

(b) whether the objects of this Act are being met with respect to forensic patients, persons subject to supervision orders and secure mental health units.

(2)  The Chief Forensic Psychiatrist has the functions imposed by this and any other Act.

(3)  The Chief Forensic Psychiatrist has the following powers:

(a) the power to make standing orders –

(i) for the management and security of secure mental health units; and

(ii) for the welfare, protection, care, treatment and control of forensic patients and persons subject to supervision orders; and

(iii) as otherwise required or contemplated by this Act;

(b) all other powers given by this and any other Act;

(c) the power to do all things necessary or convenient to perform his or her functions.

11C.   Protection from liability of Chief Forensic Psychiatrist

[Section 11C of Part 2 Inserted by No. 72 of 2005, s. 13, Applied:20 Feb 2006]

(1)  The Chief Forensic Psychiatrist does not incur any personal liability in respect of any act done or omitted to be done by the Chief Forensic Psychiatrist in good faith in the performance or exercise, or purported performance or exercise, of any of his or her functions or powers or in the administration or execution, or purported administration or execution, of this Act.

(2)  Subsection (1) does not preclude the Crown from incurring liability that the Chief Forensic Psychiatrist would, but for that subsection, incur.

Division 2 - Approval of medical practitioners and authorised officers

12.   Approval of medical practitioners

(1)  Where the Minister is satisfied that a medical practitioner has special experience in the diagnosis or treatment of mental illness, the Minister may appoint the medical practitioner to be an approved medical practitioner for the purposes of this Act.

(2)  The Minister must cause to be published in the Gazette notice of the appointment of a person as an approved medical practitioner or notice of any person ceasing to be an approved medical practitioner.

13.   Authorised officers

(1)  The Minister may appoint persons to be authorised officers for the purposes of this Act and the regulations may provide for a person who is included in a class of persons specified in the regulations to be an authorised officer.

(2)  An appointment by the Minister or under the regulations may be made –

(a) either generally or for the purposes of a particular provision of this Act; and

(b) on conditions stated in the regulation or instrument under which the appointment is given; and

(c) [Section 13 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] notwithstanding that the authorised officer is a State Service officer or State Service employee.

(3)  The Minister may, by instrument in writing, vary or revoke an appointment under this section.

Division 3 - Delegations

14.   Delegation by Minister

[Section 14 Substituted by No. 72 of 2005, s. 14, Applied:20 Feb 2006] The Minister may delegate any of his or her functions or powers under this Act, other than this power of delegation.

14A.   Delegations by Secretary, controlling authority and Chief Forensic Psychiatrist

[Section 14A Inserted by No. 72 of 2005, s. 14, Applied:20 Feb 2006]

(1)  The Secretary may delegate any of his or her functions or powers under this Act, other than this power of delegation and the power to appoint the Chief Forensic Psychiatrist or a person to act in the office of Chief Forensic Psychiatrist under section 11A .

(2)  The controlling authority of an approved hospital, assessment centre or secure mental health unit may delegate any of its functions or powers under this or any other Act, other than this power of delegation.

(3)  The Chief Forensic Psychiatrist may delegate any of his or her functions or powers under this or any other Act, other than this power of delegation.

PART 3 - Power to deal with persons with mental illness

15.   Power to take person into protective custody

(1)  If a police officer or authorised officer considers on reasonable grounds that –

(a) a person has a mental illness; and

(b) there is, in consequence, a serious risk of harm to the person or to others –

the officer may take the person into protective custody.

(2)  For the purpose of taking a person into protective custody under subsection (1) , an authorised officer may, without warrant, enter premises where the person is reasonably considered to be.

(3)  In exercising powers under this section, the authorised officer –

(a) may be accompanied by a police officer or assistants; and

(b) may use reasonable force.

(4)  [Section 15 Subsection (4) inserted by No. 32 of 2005, s. 5, Applied:11 Jul 2005] A police officer or an authorised officer may exercise powers under this section regardless of whether or not the person –

(a) is the subject of an order or an authorisation for temporary admission under this Act; or

(b) has applied for a review of any decision, notice, order or authorisation for temporary admission under this Act; or

(c) is the subject of any other process or proceeding under this Act.

16.   How persons taken into custody are to be dealt with

(1)  Where a person is taken into protective custody under this Part –

(a) he or she must be taken as soon as possible to an assessment centre; and

(b) the person taking him or her into custody must, as soon as possible but not later than 2 hours after doing so, notify the assessment centre to which the person is to be taken of that fact.

(2)  The person may be held at the assessment centre for a period of not more than 4 hours for the purpose of examination and diagnosis by a medical practitioner.

(3)  If, at the end of that period, an order for the involuntary admission of the person to an approved hospital has not been made, the person must be released.

PART 4 - Admission to approved hospitals

Division 1 - Admission generally

17.   Admission of patients

A person may be admitted as a patient to an approved hospital –

(a) if the person is of or over the age of 14 years, with the consent of the person; or

(b) if the person is under the age of 14 years, with the consent of his or her parent; or

(c) [Section 17 Amended by No. 32 of 2005, s. 6, Applied:11 Jul 2005] under an initial order, a continuing care order or an authorisation for temporary admission.

18.   Preference to be given to voluntary admission

Admission to an approved hospital with the patient's consent is to be preferred to involuntary admission.

Division 2 - Voluntary admissions

19.   Voluntary admission

A person is a voluntary patient if at the time of admission –

(a) the person is of or over the age of 14 years and is admitted to an approved hospital with his or her consent; or

(b) the person –

(i) is under the age of 14 years; and

(ii) is admitted to an approved hospital with the consent of his or her parent; and

(iii) does not resist admission to the approved hospital.

20.   Refusal of admission

If the medical practitioner determining admission to an approved hospital refuses a request for admission as a voluntary patient, the practitioner must –

(a) tell the applicant why admission is refused; and

(b) if the medical services appropriate to the applicant's case may be available elsewhere, give the applicant appropriate information about how to obtain the services; and

(c) advise the applicant of his or her right to have the matter referred to an approved medical practitioner for a second opinion.

21.   Second opinion on refusal of admission

(1)  If admission to an approved hospital is refused on the ground that the prospective patient has no mental illness that can be properly treated at the hospital, the medical practitioner determining admission to the hospital must, at the request of the person seeking admission to the hospital, refer the case to an approved medical practitioner for a second opinion.

(2)  The approved medical practitioner who is asked to give a second opinion may –

(a) confirm the decision not to admit the applicant; or

(b) request the medical practitioner determining admission to admit the applicant –

and may give any further advice or direction about the care or treatment of the applicant that may be appropriate in the circumstances.

22.   Rights of voluntary patient to discharge

A voluntary patient may, subject to section 23 , discharge himself or herself from an approved hospital at any time.

23.   Assessment of voluntary patients seeking discharge

(1)  In this section, approved nurse means a registered nurse authorised by the controlling authority of an approved hospital to exercise the powers conferred by subsection (2) .

(2)  If a voluntary patient seeks to be discharged from an approved hospital, a medical practitioner or approved nurse may take the person into protective custody so that an assessment can be made of whether the person should be admitted and detained as an involuntary patient.

(3)  A person may be held in protective custody under this section for a period of not more than 4 hours for the purposes of examination and diagnosis.

(4)  If, at the end of that period, an order for the involuntary admission of the person to an approved hospital has not been made, the person must be released from custody.

Division 3 - Involuntary admission

24.   Criteria for detention as involuntary patient

A person may be detained as an involuntary patient in an approved hospital if –

(a) the person appears to have a mental illness; and

(b) there is, in consequence, a significant risk of harm to the person or others; and

(c) the detention of the person as an involuntary patient is necessary to protect the person or others; and

(d) the approved hospital is properly equipped and staffed for the care or treatment of the person.

25.   Who may make application for involuntary admission

An application for an order for the admission and detention of a person as an involuntary patient in an approved hospital may be made by –

(a) an authorised officer; or

(b) the person responsible for the person for whom admission to the approved hospital is sought.

26.   Initial order for admission

(1)  If a medical practitioner is satisfied, on application for admission of a person as an involuntary patient, that the criteria for his or her detention as an involuntary patient in an approved hospital are met, the medical practitioner may make an order for the admission and detention of that person as an involuntary patient in an approved hospital.

(2)  An initial order is to specify –

(a) the name and address of the applicant for the order; and

(b) the name and address of the person in respect of whom the order is made; and

(c) the name and address of the medical practitioner making the order; and

(d) the name of the hospital to which the person is intended to be admitted; and

(e) the date and time of the making of the order –

and is to include a statement of each of the matters referred to in section 24 .

(3)  An initial order for the admission and detention of a person is authority for the applicant for the order or a person authorised by the applicant –

(a) to take the person in respect of whom the order is made into protective custody; and

(b) to take him or her as soon as practicable to the approved hospital referred to in the order –

and is also authority for the controlling authority of the approved hospital to detain that person after admission.

(4)  A person admitted as an involuntary patient in an approved hospital under an initial order must be examined by an approved medical practitioner within 24 hours after the admission.

(4A)  [Section 26 Subsection (4A) inserted by No. 23 of 2009, s. 34, Applied:16 Jun 2009] The approved medical practitioner who does the examination must not be the medical practitioner who made the initial order.

(5)  On completing the examination, the approved medical practitioner must either confirm or discharge the order.

27.   Cessation of initial order

An initial order ceases to have effect –

(a) if the person has not been taken to an approved hospital within 72 hours after the order was made, at the end of that period; or

(b) if an approved medical practitioner discharges the order under section 26 (5) ; or

(c) if, within 24 hours after the person was admitted to the approved hospital, an approved medical practitioner has not confirmed the order; or

(d) if the medical practitioner who is in charge of the care and treatment of the patient discharges the order; or

(e) if, within 72 hours after the person was admitted to the approved hospital, a community treatment order or continuing care order is not made.

28.   Continuing care order

(1)  An order for the continuing detention of a person as an involuntary patient in an approved hospital may be made if –

(a) the criteria for detention of the person as an involuntary patient are met; and

(b) the person is, when the order is made, subject to –

(i) an initial order; or

(ii) [Section 28 Subsection (1) amended by No. 32 of 2005, s. 7, Applied:11 Jul 2005] a community treatment order; or

(iii) [Section 28 Subsection (1) amended by No. 32 of 2005, s. 7, Applied:11 Jul 2005] an authorisation for temporary admission.

(2)  A continuing care order must be signed by 2 medical practitioners, at least one of whom must be an approved medical practitioner, who have each personally examined the person.

(3)  The medical practitioner who made an initial order in respect of a person may not sign a continuing care order for the same person.

(4)  A continuing care order is to specify –

(a) the name and address of the applicant for the order; and

(b) the name and address of the person in respect of whom the order is made; and

(c) the name and address of each medical practitioner making the order; and

(d) the name of the hospital to which the person is intended to be admitted; and

(e) the date and time of the making of the order –

and is to include a statement of each of the matters referred to in section 24 .

(5)  If a continuing care order is made and the person to whom the order relates is not in the approved hospital in which he or she is to be detained when the order is made, an authorised officer may take custody of the person and take the person to the approved hospital.

(6)  Where a person is taken to an approved hospital under subsection (5) , the continuing care order is authority for the controlling authority of the hospital to detain that person as provided by this Act.

29.   Term and renewal of continuing care order

(1)  A continuing care order operates for a term, not exceeding 6 months, stated in the order but may be renewed from time to time by 2 approved medical practitioners who have each separately examined the patient, within a month before the end of the period for which the order was made or last renewed, and have satisfied themselves that the criteria for detention as an involuntary patient in an approved hospital continue to be met.

(2)  A continuing care order ceases to have effect if –

(a) the senior approved medical practitioner of the approved hospital in which the patient is detained discharges the order; or

(b) [Section 29 Subsection (2) amended by No. 72 of 2005, s. 15, Applied:20 Feb 2006] the Mental Health Tribunal, on review of the order, discharges the order; or

(c) a community treatment order for the patient is made; or

(d) [Section 29 Subsection (2) amended by No. 72 of 2005, s. 15, Applied:20 Feb 2006] the order is not renewed or is not further renewed at the end of the term for which the order was made or last renewed; or

(e) [Section 29 Subsection (2) amended by No. 72 of 2005, s. 15, Applied:20 Feb 2006] the patient becomes a forensic patient.

30.   Rectification of orders, &c.

[Section 30 Amended by No. 32 of 2005, s. 8, Applied:11 Jul 2005] If, within 14 days after a patient is admitted to an approved hospital under an initial order, an authorisation for temporary admission or a continuing care order, the order or authorisation is found to be in any respect incorrect or defective, the order or authorisation may, within that period and with the consent of the controlling authority of the approved hospital, be amended by a medical practitioner who signed it, so long as the error does not affect the sufficiency of the grounds on which the order or authorisation was made.

PART 5 - Medical treatment of patients in approved hospitals

Division 1 - Medical treatment generally

31.   Treatment of patients generally

Medical treatment may be administered to a patient –

(a) with the patient's informed consent; or

(b) if the treatment is authorised by or under the Guardianship and Administration Act 1995 .

32.   Medical treatment for patients who refuse treatment

(1)  In this section –

medical treatment does not include –

(a) any treatment 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) termination of pregnancy; or

(c) any removal of non-regenerative tissue for the purposes of transplantation; or

(d) any other medical or dental treatment that is declared by regulations in force under the Guardianship and Administration Act 1995 to be special treatment for the purposes of Part 6 of that Act ;

non-regenerative tissue means tissue that, after injury or removal, is not replaced in the body of a living person by natural processes of growth or repair.

(2)  If, on an application under this section and after a hearing in accordance with Part 10 of the Guardianship and Administration Act 1995 , the Board is satisfied that –

(a) a person has a mental illness that is amenable to medical treatment; and

(b) a medical practitioner has recommended medical treatment for the illness but the person has refused or failed, or is likely to refuse or fail, to undergo the treatment; and

(c) the person should be given the treatment in his or her own interests or for the protection of others –

the Board may make an order authorising the giving of medical treatment for a period specified in the order.

(3)  Medical treatment may be given pursuant to an order under this section notwithstanding the absence or refusal of consent to the treatment.

Division 2 - .  .  .  .  .  .  .  .  

33.   

PART 6 - Non-medical treatment of involuntary patients in approved hospitals

Division 1 - Restraint and seclusion

34.   Physical restraint

An involuntary patient in an approved hospital may be placed under bodily restraint only if the restraint –

(a) is necessary –

(i) for medical treatment of the patient; or

(ii) to prevent injury to the patient or to others; or

(iii) to prevent the patient from persistently destroying property; and

(b) is authorised by a medical practitioner or an approved psychiatric nurse for a period of less than 4 hours; and

(c) [Section 34 Amended by No. 72 of 2005, s. 17, Applied:20 Feb 2006] is applied for no longer than authorised or if the restraint is in accordance with guidelines issued by the Mental Health Tribunal.

35.   Seclusion of involuntary patients

(1)  An involuntary patient in an approved hospital may be kept in seclusion only if –

(a) the seclusion is necessary for the protection of the patient or other persons with whom the patient would otherwise be in contact; and

(b) the seclusion is authorised by a medical practitioner or an approved psychiatric nurse; and

(c) the patient is kept in seclusion for no longer than authorised.

(2)  Where a patient is kept in seclusion –

(a) the patient must –

(i) [Section 35 Subsection (2) amended by No. 72 of 2005, s. 18, Applied:20 Feb 2006] be visited by a member of the nursing staff at intervals of not more than 15 minutes or in accordance with guidelines issued by the Mental Health Tribunal; and

(ii) be examined at intervals of not more than 4 hours by a medical practitioner; and

(b) bedding and clothing that is appropriate in the circumstances must be provided; and

(c) food and drink must be provided at the appropriate times; and

(d) adequate toilet arrangements must be made for the patient.

36.   Monthly reports on bodily restraint and seclusion

[Section 36 Amended by No. 72 of 2005, s. 19, Applied:20 Feb 2006] Any occasion where an involuntary patient in an approved hospital is placed under bodily restraint or kept in seclusion is to be reported to the Mental Health Tribunal in accordance with section 71 .

Division 2 - Leave of absence

37.   Leave of absence

(1)  An approved medical practitioner responsible for the treatment of an involuntary patient in an approved hospital may give the patient leave of absence from the hospital.

(2)  The leave of absence may be given on conditions the approved medical practitioner considers necessary in the interests of the patient or for the protection of others.

(3)  Without limiting the conditions that may be imposed, a condition may provide that the patient is to be in the care and custody of a person nominated in the condition for the period of that leave of absence.

(4)  The terms and conditions on which an approved medical practitioner gives leave of absence under this section must be recorded in a written statement and a copy of the statement must be given to the patient.

(5)  The period for which leave of absence is given may be extended from time to time at the discretion of an approved medical practitioner.

(6)  An approved medical practitioner may, by written notice to a patient who has been given leave of absence under this section, cancel the leave of absence.

Division 3 - Return of involuntary patients to hospital

38.   Return of involuntary patients to approved hospital

(1)  If an involuntary patient –

(a) is absent without leave of absence from an approved hospital; or

(b) contravenes a condition on which leave of absence was given –

the controlling authority may in writing authorise a police officer or an authorised officer to take the patient into protective custody and return him or her to the approved hospital as soon as practicable.

(2)  This section does not apply if –

(a) the patient is absent without leave for more than 28 days; or

(b) the order under which the patient was liable to detention under this Act has been discharged or has expired without being renewed.

Division 4 - Transfer of involuntary patients between approved hospitals

39.   Transfer of involuntary patient

(1)  An involuntary patient may be transferred from one approved hospital to another if –

(a) the transfer is necessary or desirable –

(i) for the care or treatment of the patient; or

(ii) for the purpose of avoiding or minimising risk to others; and

(b) the controlling authorities agree to the transfer.

(2)  A person authorised by the controlling authority of an approved hospital to transfer the patient may take custody of the patient for the purpose of transferring the patient and may take the patient from one hospital to the other.

(3)  [Section 39 Subsection (3) amended by No. 32 of 2005, s. 9, Applied:11 Jul 2005] When the patient is transferred, an order for detention of the patient, or an authorisation for temporary admission of the patient, has effect as if it provided for the detention of the patient in the approved hospital to which the patient is transferred.

(4)  [Section 39 Subsection (4) amended by No. 72 of 2005, s. 20, Applied:20 Feb 2006] The Mental Health Tribunal may, on application by the patient, a person responsible for the patient or another person who satisfies that Tribunal that he or she has a proper interest in the matter, review a decision to transfer a patient under this section.

(5)  [Section 39 Subsection (5) amended by No. 72 of 2005, s. 20, Applied:20 Feb 2006] On a review under subsection (4) , the Mental Health Tribunal may confirm, vary or revoke the decision and give consequential directions.

PART 7 - Community treatment

Division 1 - Criteria for making community treatment order

40.   Criteria for making community treatment order

A community treatment order may be made for the treatment of a person only if –

(a) the person has a mental illness; and

(b) there is, in consequence, a significant risk of harm to the person or others unless the mental illness is treated; and

(c) the order is necessary to ensure that the illness is properly treated; and

(d) facilities or services are available for the care and treatment of the person.

Division 2 - Making and renewal of community treatment order

41.   Making of community treatment order

(1)  A community treatment order may be made by 2 approved medical practitioners who have each separately and within the previous 7 days examined the patient.

(2)  Each of the approved medical practitioners must sign the order.

42.   Requirements of community treatment order

A community treatment order is to specify –

(a) the name and address of the applicant for the order; and

(b) the name and address of the person in respect of whom the order is made; and

(c) the name and address of each medical practitioner making the order; and

(d) if appropriate, the name of the treatment centre at which the person is intended to be treated; and

(e) the date and time of the making of the order; and

(f) any medication and treatment required under section 43 –

and is to include a statement of each of the matters referred to in section 40 .

43.   Requirements of patient under community treatment order

[Section 43 Substituted by No. 32 of 2005, s. 10, Applied:11 Jul 2005]

(1)  In this section –

specified means specified in a community treatment order.

(2)  A community treatment order may –

(a) require the patient to take, or submit to the administration of, medical treatment as specified or as decided from time to time by a specified medical practitioner or a medical practitioner practising at a specified treatment centre; or

(b) require the patient to attend as an outpatient at a specified treatment centre at specified intervals or as directed from time to time by a specified medical practitioner or a medical practitioner practising at the specified treatment centre; or

(c) require the patient to comply with other specified requirements or requirements made from time to time by a specified person.

(3)  A community treatment order is to contain a statement that the patient may be admitted to an approved hospital as an involuntary patient if the patient fails to comply with the requirements of the order.

(4)  If a community treatment order, whether made before or after the commencement of this subsection, does not contain a statement of a kind referred to in subsection (3) , it is taken to contain such a statement.

44.   Term and renewal of community treatment order

(1)  A community treatment order remains in operation, subject to this Act, for a term, not exceeding a year, stated in the order.

(2)  A community treatment order may be renewed from time to time by 2 approved medical practitioners who, within a month before the end of the term for which the order was granted or last renewed, have each separately examined the patient.

(3)  [Section 44 Subsection (3) substituted by No. 32 of 2005, s. 11, Applied:11 Jul 2005] If the person to whom a community treatment order relates is admitted to an approved hospital as a voluntary patient, the order is suspended while the person remains a patient in the hospital and reactivates on the discharge of the person from the hospital unless it has otherwise ceased to have effect under this section.

(3A)  [Section 44 Subsection (3A) inserted by No. 32 of 2005, s. 11, Applied:11 Jul 2005] If the person to whom a community treatment order relates is admitted to an approved hospital as an involuntary patient otherwise than on an authorisation for temporary admission, the order is suspended while the person remains a patient in the hospital and reactivates on the discharge of the person from the hospital unless it has otherwise ceased to have effect under this section.

(3B)  [Section 44 Subsection (3B) inserted by No. 32 of 2005, s. 11, Applied:11 Jul 2005] If the person to whom a community treatment order relates is admitted as an involuntary patient to an approved hospital on an authorisation for temporary admission, the order is suspended while the person remains a patient in the hospital under that authorisation and reactivates on the discharge of the person from the hospital unless it has otherwise ceased to have effect under this section.

(3C)  [Section 44 Subsection (3C) inserted by No. 32 of 2005, s. 11, Applied:11 Jul 2005] While a community treatment order is suspended it is of no effect.

(4)  A community treatment order ceases to have effect if –

(a) one of the approved medical practitioners who made the order discharges the order; or

(b) [Section 44 Subsection (4) amended by No. 72 of 2005, s. 21, Applied:20 Feb 2006] the Mental Health Tribunal, on review of the order, discharges the order; or

(c) the community treatment order is not renewed or further renewed, at the end of the term for which the order was made or last renewed; or

(d) [Section 44 Subsection (4) amended by No. 32 of 2005, s. 11, Applied:11 Jul 2005] the patient remains in an approved hospital as a patient for 3 months; or

(e) [Section 44 Subsection (4) amended by No. 32 of 2005, s. 11, Applied:11 Jul 2005] the authorisation for temporary admission ends under section 44C(e) because the period of 14 days referred to in that section elapses.

Division 3 - Authorisation for temporary admission as involuntary patient under community treatment order

44A.   Authorisation for temporary admission as involuntary patient under community treatment order

[Section 44A of Part 7 Inserted by No. 32 of 2005, s. 12, Applied:11 Jul 2005]

(1)  An approved medical practitioner may authorise the temporary admission to an approved hospital as an involuntary patient of a patient to whom a community treatment order applies if that approved medical practitioner and either an authorised officer, a medical practitioner or the person responsible for the patient are both satisfied that –

(a) the patient has failed to comply with the order; and

(b) all reasonable steps have been taken to obtain the cooperation of the patient in complying with the order; and

(c) the health of the patient has deteriorated, or there is a significant risk that the health of the patient will deteriorate, because of the patient's failure to comply with the order.

(2)  An authorisation for temporary admission is to –

(a) be in writing; and

(b) specify –

(i) the name and address of the patient to whom the community treatment order applies; and

(ii) the name and address of the approved medical practitioner making the authorisation; and

(iii) the name and address of the authorised officer, medical practitioner or person responsible who, along with the approved medical practitioner making the authorisation, must be satisfied of the matters set out in subsection (1)(a) , (b) and (c) ; and

(iv) the name of the approved hospital to which it is intended that the patient be admitted; and

(v) the date and time of the making of the authorisation; and

(c) include a statement of each of the matters set out in subsection (1)(a) , (b) and (c) .

(3)  On making an authorisation for temporary admission, the approved medical practitioner is to take all reasonable steps to –

(a) inform the patient of the authorisation; and

(b) provide a copy of the authorisation to the patient and to the person responsible for the patient.

(4)  An authorisation for temporary admission takes effect when it is made.

44B.   Effect of authorisation for temporary admission

[Section 44B of Part 7 Inserted by No. 32 of 2005, s. 12, Applied:11 Jul 2005]

(1)  If an authorisation for temporary admission has been made –

(a) an authorised officer may take the patient to whom the authorisation applies into protective custody and take him or her as soon as practicable to an approved hospital; and

(b) the authorisation is authority for the controlling authority of an approved hospital to admit the patient and detain him or her after admission for a period not exceeding 14 days.

(2)  In exercising powers under subsection (1)(a) , an authorised officer –

(a) may be assisted by any person the authorised officer considers appropriate, including a police officer; and

(b) may use such force as is reasonably necessary.

44C.   End of authorisation for temporary admission

[Section 44C of Part 7 Inserted by No. 32 of 2005, s. 12, Applied:11 Jul 2005] An authorisation for temporary admission relating to a patient ends when the first of the following occurs:

(a) the approved medical practitioner who made the authorisation cancels it;

(b) the elapse of the period of 28 days commencing on the day on which the authorisation is made unless the patient is admitted to an approved hospital on the authority of the authorisation within that period;

(c) after the patient is admitted to an approved hospital as an involuntary patient on the authority of the authorisation, the patient is discharged from the hospital by the medical practitioner who is in charge of his or her care and treatment;

(d) after the patient is admitted to an approved hospital as an involuntary patient on the authority of the authorisation, a continuing care order is made in respect of the patient;

(e) the elapse of the period of 14 days commencing on the admission of the patient to an approved hospital as an involuntary patient on the authority of the authorisation;

(f) the community treatment order to which the authorisation relates ceases to have effect under section 44(4)(a) , (b) or (c) ;

(g) the Tribunal, on review of the authorisation, discharges the authorisation.

PART 8 - Involuntary patients' rights to information

45.   Involuntary patients to be given statement of their legal rights

(1)  [Section 45 Subsection (1) amended by No. 32 of 2005, s. 13, Applied:11 Jul 2005] Where an order or an authorisation for temporary admission is made under this Act, the person in respect of whom the order or authorisation is made and the person responsible for him or her must each be given an information statement in a form approved by the Secretary setting out–

(a) the rights of involuntary patients under this Act; and

(b) any further information, including advocacy services and grievance procedures, required under the regulations.

(2)  As soon as practicable after –

(a) a diagnosis of a patient's condition has been made and a plan for treatment has been decided; or

(b) an order to which a patient is subject has been renewed –

the patient and the person responsible for him or her must be given a further information statement in a form approved by the Secretary setting out –

(c) an explanation of the patient's condition; and

(d) a statement of the nature of the proposed treatment; and

(e) [Section 45 Subsection (2) amended by No. 32 of 2005, s. 13, Applied:11 Jul 2005] the patient's right to have the relevant order or authorisation for temporary admission reviewed and the procedure for having it reviewed; and

(f) any further information required under the regulations.

(3)  Information may be excluded from an information statement if the medical practitioner in charge of a patient's treatment considers that the information is likely to have an adverse effect on his or her treatment.

(4)  If a medical practitioner makes a decision to exclude information under subsection (3) , a note of the exclusion and the reasons for it must be made in the clinical record of the patient's treatment.

46.   Monthly reports

[Section 46 Amended by No. 72 of 2005, s. 22, Applied:20 Feb 2006] Any occasion where information is excluded from an information statement as mentioned in section 45 (3) is to be reported to the Mental Health Tribunal in accordance with section 72 .

47.   Further explanations to be given by medical practitioner

If any involuntary patient or the person responsible for him or her is unlikely to understand an information statement –

(a) because the patient's or other person's native language is not English; or

(b) owing to the patient's mental condition; or

(c) for any other reason –

the medical practitioner in charge of the patient's treatment must take any action that is reasonably practicable in the circumstances to ensure that the information is understood by the patient or other person.

PART 9 - The Mental Health Tribunal

Division 1 - Establishment of the Mental Health Tribunal

48.   Establishment of Mental Health Tribunal

(1)  The Mental Health Review Tribunal, as established under the Mental Health Act 1963 , continues under the name of the Mental Health Tribunal.

(2)  [Section 48 Subsection (2) amended by No. 72 of 2005, s. 25, Applied:20 Feb 2006] The Mental Health Tribunal consists of–

(a) [Section 48 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] a President, who must be an Australian lawyer of not less than 7 years' standing as a legal practitioner; and

(b) [Section 48 Subsection (2) amended by No. 72 of 2005, s. 25, Applied:20 Feb 2006] at least 5 other members as may be necessary for the proper functioning of the Mental Health Tribunal, of whom one is to be Deputy President and one is to be an approved medical practitioner.

(3)  [Section 48 Subsection (3) amended by No. 72 of 2005, s. 25, Applied:20 Feb 2006] Schedule 1 has effect with respect to the members and staff of the Mental Health Tribunal.

49.   Mental Health Tribunal to sit in divisions

(1)  [Section 49 Subsection (1) amended by No. 72 of 2005, s. 26, Applied:20 Feb 2006] The Mental Health Tribunal may sit in divisions.

(2)  A division consists of one member or 3 or more members chosen by the President to constitute the division for a particular case or for cases of a particular class.

(3)  [Section 49 Subsection (3) amended by No. 72 of 2005, s. 26, Applied:20 Feb 2006] In choosing the member or members to constitute a division of the Mental Health Tribunal, the President must have regard to–

(a) the nature of the matters to be considered by that division; and

(b) the need for the member or members of that division to have appropriate knowledge and experience.

(4)  [Section 49 Subsection (4) amended by No. 72 of 2005, s. 26, Applied:20 Feb 2006] The President may himself or herself constitute a division, or be a member of a division, of the Mental Health Tribunal.

(5)  If a division consists of 3 or more members –

(a) the President is, if a member of the division, to be the chairperson of the division; and

(b) if the President is not a member, a member nominated as the chairperson by the President is to be the chairperson of the division.

50.   Mental Health Tribunal may act by majority

(1)  [Section 50 Subsection (1) amended by No. 72 of 2005, s. 27, Applied:20 Feb 2006] If the Mental Health Tribunal is constituted of 3 or more members–

(a) [Section 50 Subsection (1) amended by No. 72 of 2005, s. 27, Applied:20 Feb 2006] the Mental Health Tribunal may proceed with the hearing and determination of proceedings in the absence of one member; and

(b) [Section 50 Subsection (1) amended by No. 72 of 2005, s. 27, Applied:20 Feb 2006] a decision in which the majority of the members agree is a decision of the Mental Health Tribunal.

(2)  [Section 50 Subsection (2) amended by No. 72 of 2005, s. 27, Applied:20 Feb 2006] An act or decision of the Mental Health Tribunal is not invalidated by reason only of a defect or irregularity in–

(a) the appointment of a member; or

(b) the selection of a member of a division.

Division 2 - The Mental Health Tribunal's functions

51.   Functions of Mental Health Tribunal

[Section 51 Amended by No. 72 of 2005, s. 29, Applied:20 Feb 2006] The functions of the Mental Health Tribunal are–

(a) to review decisions and orders to admit persons as involuntary patients in approved hospitals; and

(b) to carry out periodic reviews of the detention of involuntary patients in approved hospitals; and

(c) to review the making of, and carry out periodic reviews of, community treatment orders; and

(d) to receive reports on the use of restraint, seclusion and the withholding of information under section 45 (3) and, if thought fit, to issue directions or guidelines for regulating any such matter; and

(da) [Section 51 Amended by No. 72 of 2005, s. 29, Applied:20 Feb 2006] to review a decision to admit an involuntary patient to a secure mental health unit under section 72B ; and

(e) [Section 51 Amended by No. 72 of 2005, s. 29, Applied:20 Feb 2006] to carry out the other functions conferred on the Mental Health Tribunal under this or any other Act.

52.   Reviews of certain orders, authorisations and admissions

(1)  [Section 52 Subsection (1) amended by No. 72 of 2005, s. 30, Applied:20 Feb 2006] The Mental Health Tribunal must review a continuing care order or a community treatment order within 28 days after the date when the order is made.

(2)  [Section 52 Subsection (2) amended by No. 72 of 2005, s. 30, Applied:20 Feb 2006] The Mental Health Tribunal must review a continuing care order or a community treatment order within 28 days after the date when the order is renewed.

(3)  [Section 52 Subsection (3) amended by No. 72 of 2005, s. 30, Applied:20 Feb 2006] [Section 52 Subsection (3) amended by No. 35 of 2002, s. 8, Applied:14 Nov 2002] The Mental Health Tribunal must review a transfer of an involuntary patient to Tasmania under Division 1 of Part 12 within 28 days after the date on which the patient is transferred.

(3A)  [Section 52 Subsection (3A) inserted by No. 72 of 2005, s. 30, Applied:20 Feb 2006] The Mental Health Tribunal must review the admission of an involuntary patient to a secure mental health unit under section 72B within 3 days after the date on which the patient is so admitted.

(4)  [Section 52 Subsection (4) amended by No. 72 of 2005, s. 30, Applied:20 Feb 2006] In addition to the mandatory reviews required under this section, the Mental Health Tribunal must, subject to subsection (5) , review–

(a) a continuing care order; or

(b) a community treatment order; or

(ba) [Section 52 Subsection (4) amended by No. 32 of 2005, s. 14, Applied:11 Jul 2005] an authorisation for temporary admission; or

(c) a transfer order made under section 39 (1) or the refusal to make any such order; or

(d) [Section 52 Subsection (4) amended by No. 1 of 2007, s. 4, Applied:17 Apr 2007] the transfer of an involuntary patient under Part 12 –

on application by the patient, a person responsible for the patient or another person who has, in the opinion of the Mental Health Tribunal, a proper interest in the patient's welfare.

(5)  [Section 52 Subsection (5) amended by No. 72 of 2005, s. 30, Applied:20 Feb 2006] The Mental Health Tribunal may decline to carry out a review on application under subsection (4) if–

(a) the period that has elapsed since the last review is 3 months or less; or

(b) the application does not indicate a material change in the circumstances of the case since the time of the last review.

(6)  [Section 52 Subsection (6) amended by No. 72 of 2005, s. 30, Applied:20 Feb 2006] The Mental Health Tribunal may combine a review under subsection (4) with a mandatory review.

53.   Applications for review

(1)  [Section 53 Subsection (1) amended by No. 32 of 2005, s. 15, Applied:11 Jul 2005] An application for review of a decision, order or authorisation for temporary admission that is subject to review under this Act may be made in writing to the registrar.

(2)  [Section 53 Subsection (2) amended by No. 32 of 2005, s. 15, Applied:11 Jul 2005] The application must state the grounds on which the applicant seeks a review of the decision, order or authorisation for temporary admission.

(3)  The controlling authority of an approved hospital must ensure that reasonable assistance is available to involuntary patients in the hospital –

(a) [Section 53 Subsection (3) amended by No. 32 of 2005, s. 15, Applied:11 Jul 2005] to make out applications for review of decisions, orders or authorisations for temporary admission under this Act affecting the involuntary patients; and

(b) to lodge the applications with the registrar.

(4)  An application for review may be withdrawn at any time.

(5)  [Section 53 Subsection (5) amended by No. 72 of 2005, s. 31, Applied:20 Feb 2006] An application for review may be heard by the Mental Health Tribunal notwithstanding that the patient to whom the application relates has been released from detention.

54.   Notification and hearing of review

(1)  The registrar must give reasonable notice of a review under this Act to –

(a) the involuntary patient; and

(b) the person responsible for the involuntary patient; and

(c) where relevant, the controlling authority of the approved hospital; and

(d) [Section 54 Subsection (1) amended by No. 72 of 2005, s. 32, Applied:20 Feb 2006] any other person to whom the Mental Health Tribunal directs that notice should be given.

(2)  [Section 54 Subsection (2) amended by No. 32 of 2005, s. 16, Applied:11 Jul 2005] A review sought under section 53 is to be heard within 21 days after the date when the application is made unless another review under this Act is to be heard within 35 days after that date except for the review of an authorisation for temporary admission, which is to be heard within 7 days after the date when the application is made.

Division 3 - The Mental Health Tribunal's proceedings

55.   Times and places of sittings

[Section 55 Amended by No. 72 of 2005, s. 34, Applied:20 Feb 2006] The Mental Health Tribunal is to sit at times and places determined by the President.

56.   General principles for hearings by Mental Health Tribunal

(1)  [Section 56 Subsection (1) amended by No. 72 of 2005, s. 35, Applied:20 Feb 2006] The Mental Health Tribunal, in hearing a matter, including a review of a decision or order or any incidental question relating to the detention of a person–

(a) must act according to good conscience having regard to the objects and principles specified in sections 6 and 7 but without regard to technicalities or legal forms; and

(b) is bound by the rules of natural justice.

(2)  [Section 56 Subsection (2) amended by No. 72 of 2005, s. 35, Applied:20 Feb 2006] The Mental Health Tribunal must avoid unnecessary formality.

57.   Representation in proceedings before Mental Health Tribunal

(1)  In this section, party to proceedings includes a person referred to in section 54 (1) .

(2)  [Section 57 Subsection (2) amended by No. 72 of 2005, s. 36, Applied:20 Feb 2006] A party to proceedings before the Mental Health Tribunal is entitled to be present when the Tribunal hears the proceedings.

(3)  [Section 57 Subsection (3) amended by No. 72 of 2005, s. 36, Applied:20 Feb 2006] A party to proceedings before the Mental Health Tribunal may appear personally in the proceedings or be represented by a legal practitioner or other person.

(4)  [Section 57 Subsection (4) amended by No. 72 of 2005, s. 36, Applied:20 Feb 2006] The registrar may make arrangements, including adjournment of the proceedings, for the representation of a party to proceedings before the Mental Health Tribunal.

58.   Evidence before Mental Health Tribunal

(1)  [Section 58 Subsection (1) amended by No. 72 of 2005, s. 37, Applied:20 Feb 2006] The Mental Health Tribunal is not bound by the rules of evidence but may inform itself as it thinks fit.

(2)  [Section 58 Subsection (2) amended by No. 72 of 2005, s. 37, Applied:20 Feb 2006] Evidence before the Mental Health Tribunal–

(a) may be given orally, in writing or partly orally and partly in writing; and

(b) may be given on oath or by statutory declaration.

(3)  [Section 58 Subsection (3) amended by No. 72 of 2005, s. 37, Applied:20 Feb 2006] An oath to a witness may be administered by any member of the Mental Health Tribunal.

(4)  [Section 58 Subsection (4) amended by No. 72 of 2005, s. 37, Applied:20 Feb 2006] Evidence given before the Mental Health Tribunal is not admissible in civil or criminal proceedings other than–

(a) proceedings for an offence against this Act; or

(b) [Section 58 Subsection (4) amended by No. 72 of 2005, s. 37, Applied:20 Feb 2006] proceedings for an offence committed at, or arising out of, a hearing before the Mental Health Tribunal.

(5)  [Section 58 Subsection (5) amended by No. 72 of 2005, s. 37, Applied:20 Feb 2006] A person who appears as a witness before the Mental Health Tribunal has the same protection as a witness in proceedings before the Court.

(6)  [Section 58 Subsection (6) amended by No. 72 of 2005, s. 37, Applied:20 Feb 2006] [Section 58 Subsection (6) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] Notwithstanding section 127A of the Evidence Act 2001 , a medical practitioner may disclose to the Mental Health Tribunal information without the consent of the person to whom the information relates.

59.   Summonses to witnesses

(1)  [Section 59 Subsection (1) amended by No. 72 of 2005, s. 38, Applied:20 Feb 2006] The Mental Health Tribunal may, on its own initiative or on the application of a party to proceedings, direct the registrar to serve on any person a summons to appear before the Tribunal to give evidence or to produce books, papers or other documents specified in the summons.

(2)  [Section 59 Subsection (2) amended by No. 72 of 2005, s. 38, Applied:20 Feb 2006] The summons must be served personally, by post or as directed by the Mental Health Tribunal, and the Mental Health Tribunal may in an appropriate case direct substituted service of the summons.

60.   Power to require reports, &c.

[Section 60 Amended by No. 72 of 2005, s. 39, Applied:20 Feb 2006] The Mental Health Tribunal may require the controlling authority of an approved hospital to provide it with–

(a) [Section 60 Amended by No. 72 of 2005, s. 39, Applied:20 Feb 2006] a report on a patient to whom proceedings before the Mental Health Tribunal relate; or

(b) copies of records about the care or treatment of the patient.

61.   Medical examinations

(1)  In this section, medical examination includes an examination of the physical, psychological and mental capacities of a patient.

(2)  [Section 61 Subsection (2) amended by No. 72 of 2005, s. 40, Applied:20 Feb 2006] The Mental Health Tribunal may, by notice in writing, require a patient to whom proceedings before the Mental Health Tribunal relate to submit to a medical examination by a specified medical practitioner who may be a member of the Mental Health Tribunal.

(3)  [Section 61 Subsection (3) amended by No. 72 of 2005, s. 40, Applied:20 Feb 2006] The Mental Health Tribunal must not require a patient to submit to a medical examination unless, having regard to the relevant inquiry, it is reasonable to require that examination.

(4)  A notice under subsection (2) is to specify –

(a) the name of the medical practitioner who is to carry out the examination; and

(b) the date, time and place of the examination.

(5)  The time and place specified for a medical examination must be reasonable.

(6)  [Section 61 Subsection (6) amended by No. 72 of 2005, s. 40, Applied:20 Feb 2006] The medical practitioner who carries out the medical examination must provide the Mental Health Tribunal and the patient with a written report on the results of that examination.

62.   Visits by Mental Health Tribunal

[Section 62 Amended by No. 72 of 2005, s. 41, Applied:20 Feb 2006] The Mental Health Tribunal or any one or more of its members may visit and interview in private any patient by or in respect of whom an application has been made to the Mental Health Tribunal.

63.   Right of Public Guardian and Secretary to intervene

[Section 63 Amended by No. 72 of 2005, s. 42, Applied:20 Feb 2006] The Public Guardian and the Secretary may intervene and be represented in any proceedings before the Mental Health Tribunal.

64.   Proceedings to be closed

(1)  [Section 64 Subsection (1) amended by No. 72 of 2005, s. 43, Applied:20 Feb 2006] All proceedings before the Mental Health Tribunal are closed to members of the public unless the Tribunal otherwise orders.

(2)  [Section 64 Subsection (2) amended by No. 72 of 2005, s. 43, Applied:20 Feb 2006] Where proceedings before the Mental Health Tribunal are open to the public, a person who is directly interested in the proceedings may request the Tribunal to have the proceedings or part of the proceedings closed to the public.

(3)  [Section 64 Subsection (3) amended by No. 72 of 2005, s. 43, Applied:20 Feb 2006] On a request under subsection (2) , the Mental Health Tribunal may direct that any person–

(a) who in its opinion is not directly interested in the proceedings; or

(b) who has not been authorised by the Tribunal to be present at the proceedings–

is to be excluded from the place where the proceedings are being, or are to be, heard.

(4)  [Section 64 Subsection (4) amended by No. 72 of 2005, s. 43, Applied:20 Feb 2006] Where a person hinders or disrupts the proper conduct of the proceedings, the Mental Health Tribunal may direct that he or she be excluded from the hearing.

Division 4 - Determinations of the Mental Health Tribunal

65.   Powers of Mental Health Tribunal on review

(1)  [Section 65 Subsection (1) amended by No. 72 of 2005, s. 45, Applied:20 Feb 2006] [Section 65 Subsection (1) amended by No. 32 of 2005, s. 17, Applied:11 Jul 2005] The Mental Health Tribunal may, on review of a decision, authorisation for temporary admission or order under this Act–

(a) [Section 65 Subsection (1) amended by No. 32 of 2005, s. 17, Applied:11 Jul 2005] confirm or vary the decision, authorisation for temporary admission or order, or revoke the decision, authorisation for temporary admission or order and substitute a different decision, authorisation for temporary admission or order; and

(b) [Section 65 Subsection (1) amended by No. 72 of 2005, s. 45, Applied:20 Feb 2006] give such directions necessary to ensure compliance with the Mental Health Tribunal's determination; and

(c) [Section 65 Subsection (1) amended by No. 32 of 2005, s. 17, Applied:11 Jul 2005] [Section 65 Subsection (1) amended by No. 72 of 2005, s. 45, Applied:20 Feb 2006] give other directions the Mental Health Tribunal considers necessary or desirable in the interests of the person to whom the decision, authorisation for temporary admission or order relates.

(2)  [Section 65 Subsection (2) amended by No. 72 of 2005, s. 45, Applied:20 Feb 2006] The Mental Health Tribunal may, on its own initiative or on application by a party to proceedings before it, correct an error in a determination.

66.   Evidence of Mental Health Tribunal's determination

(1)  [Section 66 Subsection (1) amended by No. 72 of 2005, s. 46, Applied:20 Feb 2006] A determination by the Mental Health Tribunal must be signed by a member of the Tribunal or the registrar.

(2)  [Section 66 Subsection (2) amended by No. 72 of 2005, s. 46, Applied:20 Feb 2006] All courts and persons acting judicially must take judicial notice of the signature of any person who is or has been the President, the registrar or a member of the Mental Health Tribunal and of the fact that that person is or was the President, the registrar or a member, as the case may be.

(3)  [Section 66 Subsection (3) amended by No. 72 of 2005, s. 46, Applied:20 Feb 2006] In any legal proceeding a document purporting to be signed by the President and to be a copy of a determination made by the Mental Health Tribunal under this Act is evidence of the determination.

67.   Obligation to comply with determinations

[Section 67 Amended by No. 72 of 2005, s. 47, Applied:20 Feb 2006] A person who contravenes a determination of the Mental Health Tribunal is guilty of an offence and liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a term of one year, or both.

Division 5 - Miscellaneous

68.   Register

The registrar must keep a register of –

(a) [Section 68 Amended by No. 72 of 2005, s. 48, Applied:20 Feb 2006] applications to the Mental Health Tribunal; and

(b) [Section 68 Amended by No. 72 of 2005, s. 48, Applied:20 Feb 2006] the Mental Health Tribunal's determinations.

69.   Annual report of Mental Health Tribunal

(1)  [Section 69 Subsection (1) amended by No. 72 of 2005, s. 49, Applied:20 Feb 2006] The Mental Health Tribunal must, in respect of each financial year, prepare an annual report giving full particulars of the exercise of its powers under this Act during the financial year and must furnish the Minister with the report before the following 30 September.

(2)  The Minister must cause the report to be laid before each House of Parliament within 14 sitting days of that House after receiving the report.

PART 10 - Notification of orders, &c., to Mental Health Tribunal

70.   Requirement to notify orders, &c., to Mental Health Tribunal

(1)  [Section 70 Subsection (1) amended by No. 32 of 2005, s. 18, Applied:11 Jul 2005] The senior approved medical practitioner in an approved hospital to which a patient is admitted under a continuing care order or an authorisation for temporary admission must, within 48 hours after that admission, notify the registrar in writing of–

(a) the admission of the patient; or

(b) any renewal of the order; or

(c) any transfer of the patient to another approved hospital–

as the case may be.

(2)  The senior approved medical practitioner of an approved hospital must each week notify the registrar in writing of –

(a) the discharge of involuntary patients during the previous week; or

(b) the transfer of involuntary patients under section 39 or Part 12 during the previous week.

(3)  Where a community treatment order is made or renewed, the approved medical practitioners who made or renewed the order must, within 48 hours after the making or renewal of the order, notify the registrar in writing of that fact.

(4)  Where a person is transferred to an approved hospital in Tasmania under Part 12 , the medical practitioner who is responsible for his or her treatment must, within 48 hours after the transfer, notify the registrar in writing of that fact.

(5)  Where a community treatment order is discharged, the approved medical practitioner who discharged the order must, within 48 hours after the discharge, notify the registrar in writing of that fact.

(6)  Notification under this section is to include such particulars relating to the person with a mental illness as the President may direct.

71.   Monthly reports on bodily restraint and seclusion

(1)  The senior approved medical practitioner in an approved hospital must, at the end of each month, send to the registrar, in such form as may be directed by the President, a report on the bodily restraint and seclusion of involuntary patients in the hospital during the month.

(2)  The report must specify for each case of bodily restraint –

(a) the name of the patient; and

(b) the form of restraint used; and

(c) the reasons for the restraint; and

(d) the name of the person who authorised the use of restraint; and

(e) the period for which the patient was kept under bodily restraint.

(3)  The report must specify for each case of seclusion –

(a) the name of the patient; and

(b) the place of seclusion; and

(c) the reasons for the seclusion; and

(d) the name of the person who authorised the seclusion of the patient; and

(e) the period for which the patient was kept in seclusion.

72.   Requirement to notify withholding of information

Where, under section 45 , any information is withheld from a patient who is subject to a continuing care order or a community treatment order, the medical practitioner in charge of the patient's treatment must, within 48 hours, notify the registrar in writing of that fact.

PART 10A - Secure Mental Health Units

Division 1 - Admission to secure mental health units

72A.   Admission of forensic patients

[Section 72A Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A person may be admitted to a secure mental health unit as a forensic patient if –

(a) the person is subject to a restriction order; or

(b) the person is subject to a supervision order and is apprehended under section 31 of the Criminal Justice (Mental Impairment) Act 1999 ; or

(c) the person is subject to an order under section 39(1)(b)(ii) of the Criminal Justice (Mental Impairment) Act 1999 ; or

(d) the person is subject to an assessment order made under the Sentencing Act 1997 ; or

(e) the person is subject to an order made under section 47 of the Justices Act 1959 committing him or her to a secure mental health unit; or

(f) the person is subject to an order made under section 348 of the Criminal Code remanding him or her to a secure mental health unit; or

(g) the person is subject to an order made under section 105 of the Youth Justice Act 1997 remanding him or her to a secure mental health unit; or

(h) the person is subject to any other order of a court made under the Criminal Justice (Mental Impairment) Act 1999 , the Criminal Code Act 1924 , the Sentencing Act 1997 , the Youth Justice Act 1997 or the Justices Act 1959 remanding or committing him or her to or in, or otherwise requiring him or her to be detained in, a secure mental health unit; or

(i) in the case of a person who is a prisoner but not a detainee under the Youth Justice Act 1997 , the Director makes a direction under section 36A(2) or (3) of the Corrections Act 1997 that the person be removed from a prison to a secure mental health unit; or

(j) in the case of a person who is a detainee under the Youth Justice Act 1997 , the Secretary (Youth Justice) makes a direction under section 134A(2) or (3) of that Act that the person be removed from a detention centre to a secure mental health unit.

(2)  A forensic patient may be detained by the controlling authority of a secure mental health unit –

(a) if the patient is subject to a restriction order, until the order is discharged; or

(b) if the patient is subject to a supervision order, for the period allowed under section 31(6) , (7) or (8) of the Criminal Justice (Mental Impairment) Act 1999 ; or

(c) if the patient is subject to an order referred to in subsection (1)(c) , (d) , (e) , (f) , (g) or (h) , until the order ends by reason of the terms of the order or the provisions of any Act; or

(d) if the patient is a prisoner admitted to the secure mental health unit by a direction referred to in subsection (1)(i) , until whichever of the following events first occurs:

(i) the end of the period specified in the direction or an agreement made under section 36A(5) of the Corrections Act 1997 ;

(ii) the end of the period of 48 hours, or such longer period as agreed between the Director and the Chief Forensic Psychiatrist, after the Chief Forensic Psychiatrist requires the Director to remove the person from the secure mental health unit under section 36A(7) of the Corrections Act 1997 ;

(iii) the end of the period of 48 hours after the Chief Forensic Psychiatrist determines under section 72E(4) that it would be appropriate for the patient to be returned to the custody of the Director or any longer period agreed under that section;

(iv) the prisoner is released from prison on parole under the Corrections Act 1997 ;

(v) where the prisoner is a detainee, within the meaning of the Corrections Act 1997 , the order remanding or otherwise committing him or her to prison ends;

(vi) the prisoner completes his or her sentence of imprisonment; or

(e) if the patient is a youth detainee admitted to the secure mental health unit by a direction referred to in subsection (1)(j) , until whichever of the following events first occurs:

(i) the end of the period specified in the direction;

(ii) the end of the period of 48 hours, or such longer period as agreed between the Secretary (Youth Justice) and the Chief Forensic Psychiatrist, after the Chief Forensic Psychiatrist requires that Secretary to remove the youth detainee from the secure mental health unit under section 134A(5) of the Youth Justice Act 1997 ;

(iii) the end of the period of 48 hours after the Chief Forensic Psychiatrist determines under section 72E(4) that it would be appropriate for the youth detainee to be returned to the custody of the Secretary (Youth Justice) or any longer period agreed under that section;

(iv) the youth detainee is released from detention on a supervised release order under the Youth Justice Act 1997 ;

(v) where the youth detainee has not been sentenced for the offence in respect of which he or she is being detained in custody, the order remanding or otherwise committing him or her to a detention centre ends;

(vi) the youth detainee completes his or her sentence of imprisonment.

72B.   Admission of involuntary patients

[Section 72B Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A person may be admitted to a secure mental health unit otherwise than as a forensic patient if –

(a) the person is an involuntary patient in an approved hospital; and

(b) the controlling authority of that hospital determines that the person should be transferred to a secure mental health unit for the protection of that person or other patients in, and the staff of, that hospital; and

(c) the Chief Forensic Psychiatrist is satisfied that –

(i) as a result of mental illness the person poses a serious and substantial risk to others; and

(ii) a secure mental health unit is the only appropriate place available to accommodate the person in the circumstances; and

(iii) adequate facilities and staff exist at the secure mental health unit for the appropriate care and treatment of the person.

(2)  If a person is admitted to a secure mental health unit under this section –

(a) that person is not a forensic patient; and

(b) that person is not an involuntary patient while in the secure mental health unit, except as provided in subsection (3) , but becomes an involuntary patient on his or her transfer back to an approved hospital; and

(c) except where this Act provides otherwise or a contrary intention appears, while that person is admitted to the secure mental health unit this Act applies to that person as if he or she were a forensic patient who is not subject to a restriction order.

(3)  A person admitted to a secure mental health unit under this section remains an involuntary patient for the purposes of Division 2 of Part 12 and is not to be treated as a forensic patient for the purposes of section 73G .

(4)  Before or as soon as practicable after the admission of an involuntary patient to a secure mental health unit –

(a) the Chief Forensic Psychiatrist is to notify the Mental Health Tribunal and the person responsible for the patient of the admission; and

(b) the Chief Forensic Psychiatrist and the controlling authorities of the approved hospital and secure mental health unit concerned are to determine, jointly, the period for which the patient may be detained in the secure mental health unit.

(5)  The Chief Forensic Psychiatrist and the controlling authorities of the approved hospital and secure mental health unit concerned, jointly, may extend the period determined under subsection (4) .

(5A)  [Section 72B Subsection (5A) inserted by No. 65 of 2007, s. 22, Applied:01 Jan 2008] As soon as practicable after exercising the power conferred by subsection (5) , the Chief Forensic Psychiatrist is to give the Mental Health Tribunal and the person responsible for the patient notice of the extension.

(6)  If at any time the Chief Forensic Psychiatrist is satisfied that a patient admitted to a secure mental health unit under this section no longer meets the requirements for that admission, the Chief Forensic Psychiatrist is to require the controlling authorities of the approved hospital and secure mental health unit concerned to return the patient to the approved hospital.

(7)  A patient admitted under this section may be detained by the controlling authority of a secure mental health unit –

(a) for the period determined under subsection (4) or that period as extended under subsection (5) or as shortened by the Mental Health Tribunal under section 72C(3)(b) ; or

(b) if the Chief Forensic Psychiatrist has required the return of the patient to an approved hospital, until 24 hours after the requirement was made, or such longer period as jointly determined by the Chief Forensic Psychiatrist and the controlling authorities of the approved hospital and secure mental health unit concerned; or

(c) if the Mental Health Tribunal under section 72C directs that the patient is to be returned to the approved hospital, until 24 hours after the requirement was made, or such longer period as authorised by the Mental Health Tribunal.

72C.   Review of admission under section 72B

[Section 72C Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  [Section 72C Subsection (1) substituted by No. 65 of 2007, s. 23, Applied:01 Jan 2008] The Mental Health Tribunal is to –

(a) review the admission of an involuntary patient to a secure mental health unit within 3 days after being notified of that admission under section 72B(4) ; and

(b) review any extension of the period of that admission within 3 days after being notified of that extension under section 72B(5A) .

(2)  The Mental Health Tribunal may conduct a review under this section despite its failure or inability to notify the person responsible for the involuntary patient as required by section 54(1)(b) .

(3)  [Section 72C Subsection (3) amended by No. 65 of 2007, s. 23, Applied:01 Jan 2008] On reviewing the admission of an involuntary patient to a secure mental health unit or any extension of the period of that admission, the Mental Health Tribunal may –

(a) [Section 72C Subsection (3) amended by No. 65 of 2007, s. 23, Applied:01 Jan 2008] confirm the admission or extension and the period for which the patient can be detained in the secure mental health unit determined by the Chief Forensic Psychiatrist and the controlling authorities of the approved hospital and secure mental health unit concerned; or

(b) [Section 72C Subsection (3) amended by No. 65 of 2007, s. 23, Applied:01 Jan 2008] confirm the admission or extension but shorten the period of detention; or

(c) direct that the patient be returned to the approved hospital.

(4)  The Mental Health Tribunal is to notify the Chief Forensic Psychiatrist, the controlling authorities of the approved hospital and secure mental health unit concerned and the person responsible for the patient of its decision under subsection (3) as soon as practicable.

72D.   Notifying next of kin, &c., of admission

[Section 72D Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  On the admission of a person to a secure mental health unit as a patient under section 72A or 72B , the controlling authority of the secure mental health unit may notify one or more of the following persons of that admission unless the patient has objected to the notification:

(a) the person responsible for the patient;

(b) the next of kin of the patient;

(c) a member of the family of the patient;

(d) a person with whom the patient has had a longstanding relationship.

(2)  Before notifying a person under subsection (1) of the admission of a patient, the controlling authority is to ensure that the patient has been consulted and given the opportunity to object to the notification unless it or an approved medical practitioner is of the opinion that the patient is incapable of understanding the purpose and meaning of the consultation.

(3)  For the purposes of subsection (1)(d) , the question of whether a person has had a longstanding relationship with a patient is to be determined by the controlling authority.

72E.   Right of certain forensic patients to request return to prison

[Section 72E Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

voluntary forensic patient means a forensic patient referred to in section 72A(1)(i) or (j) if the direction under section 36A(2) or (3) of the Corrections Act 1997 or section 134A(2) or (3) of the Youth Justice Act 1997 that removed the patient to the secure mental health unit was made at the request of the patient.

(2)  At any time, a voluntary forensic patient may request the Chief Forensic Psychiatrist, in writing, that he or she be returned to the custody of the Director or the Secretary (Youth Justice).

(3)  On receipt of the request of a voluntary forensic patient, the Chief Forensic Psychiatrist is to ensure that the patient is assessed by an approved medical practitioner for the purpose of determining whether it would be suitable for the patient to be returned to the custody of the Director or the Secretary (Youth Justice).

(4)  If the Chief Forensic Psychiatrist, after considering the assessment of the approved medical practitioner, determines that it would be appropriate to return the voluntary forensic patient to the custody of the Director or the Secretary (Youth Justice) –

(a) the Chief Forensic Psychiatrist, as soon as practicable, is to require the Director or the Secretary (Youth Justice) to remove the patient from the secure mental health unit; and

(b) the patient is to be so removed from the secure mental health unit and transferred to the custody of the Director or the Secretary (Youth Justice) within 48 hours after the requirement is made under paragraph (a) or such longer period as agreed between the Chief Forensic Psychiatrist and the Director or that Secretary.

(5)  If the Chief Forensic Psychiatrist determines that it would not be appropriate to return the voluntary forensic patient to a prison, the patient is taken not to be a voluntary forensic patient from the time that determination is made.

(6)  If the Chief Forensic Psychiatrist determines that it would not be appropriate to return the voluntary forensic patient to a prison, the patient may apply within 7 days to the Forensic Tribunal for a review of the determination.

(7)  On the review of a determination of the Chief Forensic Psychiatrist, the Forensic Tribunal may confirm the determination or revoke the determination.

(8)  If the Forensic Tribunal revokes the determination of the Chief Forensic Psychiatrist, subsection (4) applies as if the Chief Forensic Psychiatrist had determined that it would be appropriate to return the voluntary forensic patient to the custody of the Director or the Secretary (Youth Justice).

Division 2 - Medical treatment of forensic patients

72F.   Interpretation of "medical treatment"

[Section 72F Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] In this Division –

medical treatment does not include –

(a) any treatment that is intended, or is reasonably likely, to have the effect of rendering the forensic patient permanently infertile; or

(b) termination of pregnancy; or

(c) any removal of non-regenerative tissue for the purposes of transplantation; or

(d) any other medical or dental treatment that is declared by regulations in force under the Guardianship and Administration Act 1995 to be special treatment for the purposes of Part 6 of that Act;

non-regenerative tissue means tissue that, after injury or removal, is not replaced in the body of a living person by natural processes of growth or repair.

72G.   Medical treatment generally

[Section 72G Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

disability has the same meaning as in the Guardianship and Administration Act 1995 .

(2)  Medical treatment may be administered to a forensic patient who is not incapable of giving informed consent by reason of a disability and who has attained the age of 18 years in any of the following situations:

(a) the forensic patient has given informed consent to the administration of the treatment;

(b) the administration of the treatment to the forensic patient is authorised under section 72H , 72I or 72J .

(3)  Medical treatment may be administered to a forensic patient who is not incapable of giving informed consent by reason of a disability and who is under the age of 18 years in any of the following situations:

(a) the forensic patient has given informed consent to the administration of the treatment;

(b) the administration of the treatment to the forensic patient is authorised under section 72H , 72I or 72J .

(4)  Medical treatment may be administered to a forensic patient who is incapable of giving informed consent by reason of a disability, regardless of the age of the forensic patient, in any of the following situations:

(a) a person responsible for the forensic patient under the Guardianship and Administration Act 1995 has consented to the treatment;

(b) the administration of the treatment is otherwise authorised by or under Part 6 of that Act;

(c) the administration of the treatment to the forensic patient is authorised under section 72H , 72I or 72J .

(5)  Section 38 of the Guardianship and Administration Act 1995 does not apply in respect of the administration of medical treatment authorised under this Division.

(6)  A reference in this Part to consent by a forensic patient to the administration of treatment or medical treatment means, in relation to a forensic patient who has not attained the age of 18 years –

(a) consent by the forensic patient if he or she is capable of giving informed consent; or

(b) consent by the parent of the forensic patient if the forensic patient is not capable of giving informed consent for a reason other than a disability; or

(c) [Section 72G Subsection (6) amended by No. 1 of 2007, s. 5, Applied:17 Apr 2007] consent by the Secretary (Youth Justice) if –

(i) the forensic patient is not capable of giving informed consent for a reason other than a disability; and

(ii) the whereabouts of the parent of the forensic patient is unable after reasonable inquiry to be ascertained, or the parent has refused or failed to consent, is likely to refuse or fail to consent or has withdrawn consent.

72H.   Medical treatment for forensic patients who do not consent in urgent circumstances

[Section 72H Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

disability has the same meaning as in the Guardianship and Administration Act 1995 .

(2)  Medical treatment in respect of a mental illness may be administered to a forensic patient if –

(a) an approved medical practitioner is of the opinion that –

(i) the forensic patient is suffering a mental illness that is amenable to the treatment; and

(ii) either –

(A) the forensic patient is incapable by reason of a disability of giving informed consent; or

(B) informed consent to the treatment has been refused or not given, is likely to be refused or not given or has been withdrawn by the forensic patient; and

(iii) urgent treatment is necessary in the best interests of the forensic patient or for the protection of other persons; and

(iv) delaying the treatment until it can be authorised under section 72I or 72J is likely to be contrary to the best interests of the forensic patient or pose a risk to the safety of other persons; and

(b) the Chief Forensic Psychiatrist has authorised the treatment.

(3)  Medical treatment may be administered to a forensic patient under subsection (2) until the first of the following occurs:

(a) an approved medical practitioner determines that the circumstances specified in subsection (2) as necessary for the administration of the treatment no longer exist;

(b) authorisation for the treatment is given or refused by the Forensic Tribunal or a member of the Forensic Tribunal under section 72I or 72J ;

(c) the end of the period of 96 hours commencing when the treatment is first administered.

(4)  Before medical treatment is administered under subsection (2) , an approved medical practitioner is to make reasonable effort to obtain informed consent to the administration of the treatment –

(a) from the forensic patient; or

(b) if the approved medical practitioner is of the opinion that the forensic patient is incapable of giving informed consent by reason of a disability, from any person responsible who can give the informed consent under section 43 of the Guardianship and Administration Act 1995 in relation to the forensic patient.

(5)  If medical treatment is administered under subsection (2) , the Chief Forensic Psychiatrist is to notify the Forensic Tribunal, in writing, of the following details within 7 days after authorisation for the treatment ends under subsection (3) unless the continued administration of the treatment is authorised under section 72I or 72J :

(a) the name of the forensic patient;

(b) the treatment administered;

(c) the length of time during which the treatment was so administered;

(d) the reasons for so administering the treatment.

(6)  A particular type or form of medical treatment may not be administered to a particular forensic patient under subsection (2) if that type or form of medical treatment has previously been proposed in respect of, or administered to, the patient under that subsection and –

(a) on an application under section 72I(2) , either the Forensic Tribunal or a member of the Forensic Tribunal has refused under section 72I or 72J to authorise the administration of that treatment to the patient; or

(b) not less than 30 days has passed since the previous administration of that treatment to the patient ended.

72I.   Authorisation of medical treatment by Forensic Tribunal

[Section 72I Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

disability has the same meaning as in the Guardianship and Administration Act 1995 .

(2)  An approved medical practitioner, the Chief Forensic Psychiatrist or the controlling authority of a secure mental health unit may apply in writing to the Forensic Tribunal for an authorisation to administer medical treatment in respect of a mental illness to a forensic patient if an approved medical practitioner is of the opinion that the forensic patient is suffering a mental illness that is amenable to the treatment and –

(a) the forensic patient is incapable of giving informed consent by reason of a disability; or

(b) the forensic patient has refused or failed to consent, is likely to refuse or fail to consent or has withdrawn consent to the administration of the treatment.

(3)  As soon as practicable after receiving an application, the Forensic Tribunal is to conduct a hearing in respect of the application.

(4)  If after conducting the hearing the Forensic Tribunal is satisfied that –

(a) the forensic patient has a mental illness that is amenable to medical treatment; and

(b) an approved medical practitioner has recommended medical treatment for the illness but –

(i) the forensic patient is incapable of giving informed consent to the administration of the treatment by reason of a disability; or

(ii) the forensic patient has refused or failed to consent, is likely to refuse or fail to consent or has withdrawn consent to the administration of the treatment; and

(c) the treatment should be administered to the forensic patient in the best interests of the forensic patient or for the protection of other persons –

the Forensic Tribunal may authorise the administration of the medical treatment to the forensic patient during the period, and subject to any conditions, specified in the authorisation.

(5)  If after conducting the hearing the Forensic Tribunal is not satisfied of the matters specified in subsection (4) , the Forensic Tribunal must refuse to authorise the administration of the medical treatment to the forensic patient.

72J.   Interim authorisation

[Section 72J Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A member of the Forensic Tribunal may authorise the administration of medical treatment in respect of a mental illness to a forensic patient if –

(a) an application for an authorisation of the medical treatment has been made to the Forensic Tribunal under section 72I(2) ; and

(b) the member considers that the treatment should be administered to the forensic patient in the best interests of the forensic patient or for the protection of other persons; and

(c) the member considers that the delay in administering the treatment that would occur while awaiting the decision of the Forensic Tribunal under section 72I should he or she not make the authorisation would be detrimental to the best interests of the forensic patient or would endanger the safety of other persons.

(2)  The member of the Forensic Tribunal may make the decisions under subsection (1)(b) and (c) on the basis of the application alone and without further investigation.

(3)  If the member of the Forensic Tribunal is not satisfied of the matters specified in subsection (1) , the member must refuse to authorise the administration of the medical treatment to the forensic patient.

(4)  An authorisation under subsection (1) is to be communicated to the applicant and the Chief Forensic Psychiatrist by any means the member of the Forensic Tribunal considers appropriate but, if the communication is not in writing, the member is to confirm it in writing as soon as practicable.

(5)  An authorisation under subsection (1) has effect until the application made under section 72I(2) is determined by the Forensic Tribunal, unless sooner revoked.

(6)  The member of the Forensic Tribunal who authorised the administration of medical treatment to the forensic patient under subsection (1) or the Forensic Tribunal may revoke or amend the authorisation at any time.

72K.   Right to second opinion

[Section 72K Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

first medical practitioner means the medical practitioner referred to in subsection (2) who is administering or intends to administer medical treatment to a forensic patient;

original treatment means the medical treatment referred to in subsection (2) that the first medical practitioner is administering or intends to administer.

(2)  If a medical practitioner administers or intends to administer medical treatment to a forensic patient and the administration of that treatment –

(a) is not authorised by the Forensic Tribunal under section 72I ; or

(b) is not authorised by a member of the Forensic Tribunal under section 72J  –

the forensic patient, or another person who is authorised to consent to the administration of medical treatment to the forensic patient, may request that another medical practitioner give an opinion in respect of the necessity for and appropriateness of the treatment.

(3)  On receipt of a request for a second opinion under subsection (2) , the medical practitioner is to notify the Chief Forensic Psychiatrist of that request as soon as practicable.

(4)  As soon as practicable after a request for a second opinion under subsection (2) is made, the Chief Forensic Psychiatrist must arrange for and facilitate the provision of that second opinion to the forensic patient by a medical practitioner, or other person, approved by the Forensic Tribunal for the purpose of giving such second opinions.

(5)  If –

(a) the second opinion is that –

(i) the original treatment is unnecessary or inappropriate; or

(ii) another medical treatment would be equally or more suitable; and

(b) the first medical practitioner remains of the belief that the original treatment should be administered to the forensic patient; and

(c) the Chief Forensic Psychiatrist agrees that the original treatment should be administered to the forensic patient –

the Chief Forensic Psychiatrist is to apply to the Forensic Tribunal under section 72I for an authorisation to administer the original treatment to the forensic patient and the original treatment is not to be administered to the forensic patient unless authorised under that section or section 72J .

(6)  A forensic patient is not to be taken to have refused or failed to consent to medical treatment if he or she has requested a second opinion from a medical practitioner under subsection (2) and either –

(a) is awaiting that second opinion; or

(b) has refused to consent to the treatment because that second opinion recommended that the treatment was unnecessary or inappropriate or that another medical treatment was equally or more suitable; or

(c) has consented to an alternative treatment proposed in that second opinion.

(7)  Despite subsection (6)  –

(a) if the original treatment is for a mental illness, section 72H continues to apply in relation to the administration of the original treatment to the forensic patient in the circumstances specified in that section; and

(b) if the original treatment is for a medical condition other than a mental illness, the original treatment may be administered to the forensic patient if a medical practitioner considers it necessary –

(i) to save the patient's life; or

(ii) to prevent serious damage to the patient's health; or

(iii) except in the case of special treatment within the meaning of the Guardianship and Administration Act 1995 , to prevent the patient from suffering or continuing to suffer significant pain or distress.

Division 3 - Non-medical treatment of forensic patients

Subdivision 1 - Restraint and seclusion

72L.   Physical restraint

[Section 72L Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A forensic patient may be placed under bodily restraint only as permitted under this section.

(2)  A forensic patient may be placed under bodily restraint if the restraint –

(a) is necessary –

(i) for medical treatment of the patient; or

(ii) to prevent injury to the patient or to other persons; or

(iii) to prevent the patient from destroying or damaging property; or

(iv) to prevent the patient from escaping from the custody of the controlling authority of the secure mental health unit or another person who has the custody of the forensic patient under an order of a court; or

(v) to maintain order in, and the security of, the secure mental health unit in which the patient is situated; or

(vi) for any other purpose specified in guidelines issued by the Forensic Tribunal; and

(b) is authorised –

(i) by a medical practitioner or an approved psychiatric nurse for a period of less than 4 hours; or

(ii) by guidelines issued by the Forensic Tribunal; or

(iii) by standing orders issued by the Chief Forensic Psychiatrist; and

(c) is applied for no longer than authorised as specified by the medical practitioner or approved psychiatric nurse referred to in paragraph (b) or as otherwise authorised by guidelines issued by the Forensic Tribunal or standing orders issued by the Chief Forensic Psychiatrist; and

(d) is applied in accordance with any guidelines issued by the Forensic Tribunal.

72M.   Use of force

[Section 72M Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] A medical practitioner, an authorised person, another person at a secure mental health unit, a person who has the custody of the forensic patient under an order of a court and a person assisting such medical practitioner, authorised person, other person or person having such custody may use such force as is reasonable in the circumstances for –

(a) the purpose of preventing injury to the forensic patient or to other persons or preventing the forensic patient from destroying or damaging property; or

(b) the purpose of placing a forensic patient under bodily restraint; or

(c) the purpose of preventing a forensic patient from escaping from the custody of the controlling authority of a secure mental health unit or another person who has the custody of the forensic patient under an order of a court; or

(d) the purpose of administering medical treatment to the forensic patient; or

(e) any other purpose specified in guidelines issued by the Forensic Tribunal or standing orders issued by the Chief Forensic Psychiatrist.

72N.   Seclusion of forensic patients

[Section 72N Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A forensic patient may be kept in seclusion only if –

(a) the seclusion is necessary –

(i) for medical treatment of the patient; or

(ii) to prevent injury to the patient or to other persons; or

(iii) to prevent the patient from destroying or damaging property; or

(iv) to ensure that the patient does not escape from the custody of the controlling authority of the secure mental health unit or another person who has custody of the patient under an order of a court; or

(v) to maintain order in, and the security of, the secure mental health unit in which the patient is situated; and

(b) the seclusion is authorised by a medical practitioner or an approved psychiatric nurse, by guidelines issued by the Forensic Tribunal or by standing orders issued by the Chief Forensic Psychiatrist; and

(c) the patient is kept in seclusion for no longer than authorised; and

(d) the seclusion is in accordance with any guidelines issued by the Forensic Tribunal.

(2)  If a patient is kept in seclusion –

(a) the patient must –

(i) be visited by a nurse who is registered under the Nursing Act 1995 at intervals of not more than 15 minutes or in accordance with guidelines issued by the Forensic Tribunal; and

(ii) be examined at intervals of not more than 4 hours by a medical practitioner or an approved psychiatric nurse; and

(b) if the patient is kept in seclusion for more than 7 hours –

(i) that portion of the seclusion exceeding 7 hours must be authorised by the Chief Forensic Psychiatrist; and

(ii) the patient must be examined at least once every 12 hours by a medical practitioner in addition to the examinations required by paragraph (a) ; and

(c) bedding and clothing that is appropriate in the circumstances must be provided; and

(d) food and drink must be provided at the appropriate times; and

(e) adequate toilet arrangements must be made for the patient.

72O.   Monthly reports on bodily restraint and seclusion

[Section 72O Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  Within 3 days after the end of each month, the Chief Forensic Psychiatrist must send to the Forensic Tribunal a report on the use of bodily restraint and seclusion on forensic patients in each secure mental health unit during that month.

(2)  The report is to be in a form approved by the chairperson of the Forensic Tribunal.

(3)  For each case of bodily restraint the report must specify –

(a) the name of the forensic patient; and

(b) the form of restraint used; and

(c) the reasons for the restraint; and

(d) the name of the person who authorised the use of restraint; and

(e) the period for which the forensic patient was kept under bodily restraint.

(4)  For each case of seclusion the report must specify –

(a) the name of the forensic patient; and

(b) the place of seclusion; and

(c) the reasons for the seclusion; and

(d) the name of the person who authorised the seclusion of the forensic patient; and

(e) the period for which the forensic patient was kept in seclusion.

Subdivision 2 - Leave of absence

72P.   Leave of absence for forensic patients generally

[Section 72P Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  This section applies to a forensic patient other than a forensic patient who is subject to a restriction order.

(2)  This section does not apply in relation to the attendance of a forensic patient at a court.

(3)  Any of the following persons may apply to the Chief Forensic Psychiatrist for leave of absence for a forensic patient for personal reasons:

(a) the forensic patient;

(b) a person responsible for the forensic patient;

(c) a relative or close friend of the forensic patient;

(d) any other person who is granted leave to apply by the Chief Forensic Psychiatrist.

(4)  Without limiting the personal reasons for which an application for leave of absence for a forensic patient may be made, those reasons may include –

(a) visiting a sick or dying relative or other person; and

(b) attendance at the funeral of a relative or other person; and

(c) attendance at a wedding, birth or graduation of a relative or other person; and

(d) attendance at an occasion of family importance; and

(e) if the person is an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 , attendance at an event of special cultural or spiritual significance; and

(f) attendance at a religious event or service.

(5)  The approved medical practitioner responsible for the medical treatment of a forensic patient may apply to the Chief Forensic Psychiatrist for leave of absence for the forensic patient for any of the following purposes:

(a) the personal reasons of the forensic patient;

(b) the rehabilitation or reintegration into the community of the forensic patient;

(c) any other purpose the approved medical practitioner considers necessary or appropriate.

(6)  An application for leave of absence for a forensic patient may be made in person, in writing, by telephone, facsimile machine or email or by any other means of communication.

(7)  On receipt of an application for leave of absence for a forensic patient, the Chief Forensic Psychiatrist –

(a) [Section 72P Subsection (7) amended by No. 76 of 2009, s. 21, Applied:11 Dec 2009] is to request the Secretary (Corrections) to search the eligible persons register and notify each victim listed in relation to the forensic patient in that register of the application and of the victim's right to make written submissions in respect of the application unless it is not practicable to notify such a victim in the circumstances; and

(b) if the forensic patient is also a prisoner, is to notify the Director or the Secretary (Youth Justice) of the application and of his or her right to make written submissions in respect of the application; and

(c) is to notify any member of the forensic patient's family that the Chief Forensic Psychiatrist considers should be notified of the application and of the member's right to make written submissions in respect of the application; and

(d) after considering any written submissions made by persons notified under this subsection, grant or refuse to grant leave of absence to the forensic patient.

(8)  If the forensic patient is serving a sentence of detention within the meaning of the Youth Justice Act 1997 , leave of absence may be granted only if the Secretary (Youth Justice) consents to it.

(9)  On granting a leave of absence under this section, the Chief Forensic Psychiatrist must –

(a) record, in writing, the terms of the leave of absence, including any conditions on which the leave of absence is granted; and

(b) provide a copy of the record to the forensic patient and the controlling authority of the secure mental health unit.

(10)  Leave of absence may only be granted for leave within Tasmania.

(11)  Leave of absence may be granted –

(a) for a particular period or for a particular purpose, or both; and

(b) subject to any conditions the Chief Forensic Psychiatrist considers necessary in the interests of the forensic patient or for the protection of other persons; and

(c) by any means of verbal or written communication, including by telephone, facsimile machine and email.

(12)  If leave of absence is granted for a particular purpose without specifying a particular period for that leave of absence, the approved medical practitioner responsible for the treatment of the forensic patient in the secure mental health unit may determine the period or periods for which the forensic patient may be absent from the secure mental health unit on leave of absence for that particular purpose.

(13)  If leave of absence is granted for a particular period, the Chief Forensic Psychiatrist may extend that period at any time by notice in writing provided to the forensic patient.

(14)  The leave of absence of a forensic patient who is a youth detainee may only be extended under subsection (13) if the Secretary (Youth Justice) consents to it.

(15)  Without limiting the conditions that may be imposed in respect of leave of absence, a condition may provide that the forensic patient is to be in the care and custody of a person specified in the condition during that leave of absence.

(16)  The Chief Forensic Psychiatrist may amend the conditions of a leave of absence at any time by notice in writing provided to the forensic patient.

(17)  The conditions of a leave of absence of a forensic patient who is a youth detainee may only be amended under subsection (16) if the Secretary (Youth Justice) consents to it.

(18)  For the purposes of subsection (16) , the conditions of a leave of absence may be amended by –

(a) adding a new condition, whether or not the leave of absence is already subject to conditions; or

(b) omitting a condition; or

(c) omitting a condition and substituting another condition; or

(d) inserting matter in a condition; or

(e) omitting matter from a condition; or

(f) omitting matter from a condition and substituting other matter.

(19)  The Secretary, the Chief Forensic Psychiatrist, the controlling authority of the secure mental health unit, the approved medical practitioner responsible for the medical treatment of the forensic patient in the secure mental health unit or another approved medical practitioner may cancel a leave of absence granted under this section at any time in writing provided to the forensic patient if the Secretary, Chief Forensic Psychiatrist, controlling authority or medical practitioner believes that there is a significant risk of harm to the patient or to other persons if the leave of absence is not cancelled.

(20)  If the leave of absence of a forensic patient is cancelled, an authorised officer or police officer may apprehend the forensic patient and return him or her to the secure mental health unit and, for that purpose may –

(a) enter, without warrant, any premises where the authorised officer or police officer suspects the forensic patient may be; and

(b) be accompanied by such assistants as the authorised officer or police officer considers appropriate; and

(c) use such force and bodily restraint as the authorised officer or police officer considers reasonable in the circumstances.

72Q.   Leave of absence for forensic patients on restriction orders

[Section 72Q Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  This section applies to a forensic patient who is subject to a restriction order.

(2)  This section does not apply in relation to the attendance of a forensic patient at a court.

(3)  Any of the following persons may apply, in writing, to the Forensic Tribunal for leave of absence for a forensic patient for personal reasons:

(a) the forensic patient;

(b) a person responsible for the forensic patient;

(c) a relative or close friend of the forensic patient;

(d) any other person who is granted leave to apply by the Forensic Tribunal.

(4)  Without limiting the personal reasons for which an application for leave of absence for a forensic patient may be made, those reasons may include –

(a) visiting a sick or dying relative or other person; and

(b) attendance at the funeral of a relative or other person; and

(c) attendance at a wedding, birth or graduation of a relative or other person; and

(d) attendance at an occasion of family importance; and

(e) if the person is an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 , attendance at an event of special cultural or spiritual significance; and

(f) attendance at a religious event or service.

(5)  The Chief Forensic Psychiatrist may apply to the Forensic Tribunal for leave of absence for a forensic patient for any of the following purposes:

(a) the personal reasons of the forensic patient;

(b) the rehabilitation or reintegration into the community of the forensic patient;

(c) any other purpose the Chief Forensic Psychiatrist considers necessary or appropriate.

(6)  On receipt of an application for leave of absence for a forensic patient, the Forensic Tribunal –

(a) [Section 72Q Subsection (6) amended by No. 76 of 2009, s. 22, Applied:11 Dec 2009] is to request the Secretary (Corrections) to search the eligible persons register and notify any victim listed in relation to the forensic patient in that register of the application and of the victim's right to make written submissions in respect of the application unless it is not practicable to notify such a victim in the circumstances; and

(b) is to notify any member of the forensic patient's family that the Forensic Tribunal considers should be notified of the application and of the member's to make written submissions in respect of the application; and

(c) after considering –

(i) any written submissions made by any such victims or family members; and

(ii) any submissions made by the forensic patient; and

(iii) any submissions made by the Chief Forensic Psychiatrist, an approved medical practitioner or the controlling authority of the secure mental health unit; and

(iv) any other written submissions the Forensic Tribunal considers relevant –

grant or refuse to grant leave of absence to the forensic patient.

(7)  On granting a leave of absence under this section, the Forensic Tribunal must –

(a) record, in writing, the terms of the leave of absence, including any conditions on which the leave of absence is granted; and

(b) provide a copy of the record to the forensic patient and the controlling authority of the secure mental health unit.

(8)  Leave of absence may only be granted for leave within Tasmania.

(9)  Leave of absence may be granted –

(a) for a particular period or for a particular purpose, or both; and

(b) subject to any conditions the Forensic Tribunal considers necessary in the interests of the forensic patient or for the protection of other persons.

(10)  If a leave of absence is granted for a particular period, whether or not for a particular purpose, the Forensic Tribunal may extend that period by notice in writing provided to the forensic patient.

(11)  If leave of absence is granted for a particular purpose without specifying a particular period for that leave of absence, the Chief Forensic Psychiatrist may –

(a) determine the period or periods during which the forensic patient may be absent from the secure mental health unit on leave of absence for that particular purpose; and

(b) extend that period or any of those periods or determine further periods during which the forensic patient may be absent from the secure mental health unit on leave of absence for that particular purpose.

(12)  The Chief Forensic Psychiatrist is to notify the forensic patient, in writing, of any determination made under subsection (11) .

(13)  Without limiting the conditions that may be imposed in respect of leave of absence, a condition may provide that the forensic patient is to be in the care and custody of a person specified in the condition during that leave of absence.

(14)  The Forensic Tribunal may amend the conditions of a leave of absence at any time by notice in writing provided to the forensic patient.

(15)  For the purposes of subsection (14) , the conditions of a leave of absence may be amended by –

(a) adding a new condition, whether or not the leave of absence is already subject to conditions; or

(b) omitting a condition; or

(c) omitting a condition and substituting another condition; or

(d) inserting matter in a condition; or

(e) omitting matter from a condition; or

(f) omitting matter from a condition and substituting other matter.

(16)  The Forensic Tribunal, the Secretary, the Chief Forensic Psychiatrist, the controlling authority of the secure mental health unit, the approved medical practitioner responsible for the medical treatment of the forensic patient in the secure mental health unit or another approved medical practitioner may cancel a leave of absence granted under this section at any time in writing provided to the forensic patient if the Forensic Tribunal, Secretary, controlling authority or approved medical practitioner considers that there is a significant risk of harm to the forensic patient or to other persons if the leave of absence is not cancelled.

(17)  If the Secretary, the Chief Forensic Psychiatrist, the controlling authority of the secure mental health unit, the approved medical practitioner responsible for the medical treatment of the forensic patient in the secure mental health unit or another approved medical practitioner cancels a leave of absence, he or she is to notify the Forensic Tribunal, in writing, of the cancellation.

(18)  If the leave of absence of a forensic patient is cancelled, an authorised officer or police officer may apprehend the forensic patient and return him or her to the secure mental health unit and, for that purpose may –

(a) enter, without warrant, any premises where the authorised officer or police officer suspects the forensic patient may be; and

(b) be accompanied by such assistants as the authorised officer or police officer considers appropriate; and

(c) use such force and bodily restraint as the authorised officer or police officer considers reasonable in the circumstances.

72R.   Notification of victims

[Section 72R Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  [Section 72R Subsection (1) amended by No. 76 of 2009, s. 23, Applied:11 Dec 2009] If under section 72P or 72Q the Forensic Tribunal, the Secretary, the Chief Forensic Psychiatrist, the controlling authority of the secure mental health unit or an approved medical practitioner grants, extends or cancels a leave of absence or amends the conditions to which a leave of absence is subject, that person must request the Secretary (Corrections) to notify each victim listed in the eligible persons register in relation to the forensic patient, in writing, of the grant, extension, cancellation or amendment as soon as practicable.

(2)  [Section 72R Subsection (2) amended by No. 76 of 2009, s. 23, Applied:11 Dec 2009] Following the grant of leave of absence or the amendment of the conditions to which a leave of absence is subject, the forensic patient must not be released from the secure mental health unit on the leave of absence until each victim listed in the eligible persons register in relation to the forensic patient has been notified of the grant or amendment except where it is not practicable in the circumstances to do so.

Subdivision 3 - Visits, telephone calls and mail

72S.   Interpretation of Subdivision

[Section 72S Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] In this Subdivision –

exempt visitor means –

(a) a judge; and

(b) a magistrate; and

(c) the Ombudsman or an officer of the Ombudsman; and

(d) the Public Guardian; and

(e) a legal practitioner; and

(f) a member of the Forensic Tribunal; and

(g) a person specified as an exempt visitor for the purposes of this Subdivision in standing orders issued by the Chief Forensic Psychiatrist; and

(h) a prescribed person.

72T.   Visits

[Section 72T Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A person may enter a secure mental health unit as a visitor at any reasonable time, and at reasonable intervals, as determined by the controlling authority or Chief Forensic Psychiatrist.

(2)  Despite subsection (1) , the controlling authority, the Chief Forensic Psychiatrist or an authorised person may refuse to allow a person, other than an exempt visitor, to enter the secure mental health unit if it, he or she considers that –

(a) the visit would be detrimental to the health and welfare of a forensic patient or his or her treatment; or

(b) the visit would pose a risk of harm or distress to a forensic patient or any other person in the secure mental health unit; or

(c) if the visit is for the purpose of visiting a forensic patient, the Chief Forensic Psychiatrist or an approved medical practitioner is of the opinion that the forensic patient is seriously or acutely unwell; or

(d) the visit would or might endanger the good order or security of the secure mental health unit; or

(e) the visit is or might be for an illegal purpose.

(3)  The controlling authority, the Chief Forensic Psychiatrist or an authorised person may direct a person who has been refused admission to the secure mental health unit under subsection (2) to leave the secure mental health unit or the immediate vicinity of the secure mental health unit immediately.

(4)  The controlling authority, the Chief Forensic Psychiatrist or an authorised person may give to a visitor such directions as are necessary for the management, good order and security of the secure mental health unit.

(5)  A visitor must obey a direction given under subsection (3) or (4) .

Penalty:  Fine not exceeding 5 penalty units.

(6)  If a person refuses or fails to comply with a direction under subsection (3) or (4)  –

(a) an authorised person, with such assistants and using such force as he or she considers appropriate in the circumstances, may remove the person from the secure mental health unit or detain the person for such time as is necessary for the person to be arrested by a police officer under paragraph (b) ; and

(b) the person may be arrested by a police officer without warrant.

72U.   Visitors to give information

[Section 72U Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A person who wishes to enter as a visitor a secure mental health unit in which a forensic patient is situated must, if asked by the controlling authority, the Chief Forensic Psychiatrist or an authorised person, provide to the controlling authority, Chief Forensic Psychiatrist or authorised person –

(a) proof of the person's identity, including fingerprints and other biometric data approved by standing order issued by the Chief Forensic Psychiatrist; and

(b) information as to the person's address, occupation, age and relationship to the forensic patient to be visited; and

(c) information as to the purpose of the visit.

(2)  A person must not, under subsection (1) , knowingly provide to the controlling authority, Chief Forensic Psychiatrist or authorised person an identity or information that is false or misleading.

Penalty:  Fine not exceeding 5 penalty units.

72V.   Visits by police

[Section 72V Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  If a police officer for the purpose of visiting a forensic patient enters or wishes to enter a secure mental health unit, the forensic patient –

(a) may refuse that visit; and

(b) is not required to answer questions asked by the police officer during that visit; and

(c) at his or her request, may have present at, or observing with or without sound, any part of that visit a medical practitioner, member of staff of the secure mental health unit or legal practitioner.

(2)  If a police officer proposes to visit a forensic patient, the controlling authority is to ensure that the forensic patient is advised of his or her rights under this section.

72W.   Refusal of visitor

[Section 72W Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] A forensic patient may refuse a visit from a visitor.

72X.   Visit may be terminated

[Section 72X Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The controlling authority, the Chief Forensic Psychiatrist or an authorised person may direct a person, other than an exempt visitor, who has entered a secure mental health unit for the purposes of visiting a forensic patient to leave the secure mental health unit or part of the secure mental health unit immediately if it, he or she believes on reasonable grounds that the visit to the forensic patient –

(a) is, or would be, detrimental to the health and welfare of the forensic patient or his or her treatment; or

(b) is posing, or would pose, a risk of harm to the forensic patient or any other person in the secure mental health unit; or

(c) is not, or would not be, appropriate because the Chief Forensic Psychiatrist or an approved medical practitioner is of the opinion that the forensic patient is seriously or acutely unwell; or

(d) is endangering, or would or might endanger, the good order or security of the secure mental health unit; or

(e) is, or would or might be, for an illegal purpose.

(2)  A person must comply with a direction under subsection (1) .

Penalty:  Fine not exceeding 5 penalty units.

(3)  If a person refuses or fails to comply with a direction under subsection (1)  –

(a) an authorised person, with such assistants and using such force as he or she considers appropriate in the circumstances, may remove the person from the secure mental health unit or detain the person for such time as is necessary for the person to be arrested by a police officer under paragraph (b) ; and

(b) the person may be arrested by a police officer without warrant.

(4)  The controlling authority or the Chief Forensic Psychiatrist may request an exempt visitor to leave the secure mental health unit or part of a secure mental health unit immediately if it, he or she believes on reasonable grounds that the visit to the forensic patient –

(a) is, or would be, detrimental to the health and welfare of the forensic patient or his or her treatment; or

(b) is posing, or would pose, a risk of harm to the forensic patient or any other person in the secure mental health unit; or

(c) is not, or would not be, appropriate because the Chief Forensic Psychiatrist or an approved medical practitioner is of the opinion that the forensic patient is seriously or acutely unwell; or

(d) is endangering, or would or might endanger, the good order or security of the secure mental health unit; or

(e) is, or would or might be, for an illegal purpose.

72Y.   Formal searches

[Section 72Y Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

formal search means a search to detect the presence of drugs, weapons or articles which the controlling authority does not allow to be brought into the secure mental health unit, whether carried out personally or by an electronic or mechanical device.

(2)  A person who wishes to enter or remain in a secure mental health unit as a visitor must submit to a formal search if asked by the controlling authority, the Chief Forensic Psychiatrist or an authorised person to do so.

(3)  If a person refuses to submit to a formal search when asked to do so under subsection (2) , the controlling authority, the Chief Forensic Psychiatrist or an authorised person may direct the person to leave the secure mental health unit immediately.

(4)  A person must comply with a direction under subsection (3) .

Penalty:  Fine not exceeding 5 penalty units.

(5)  If a person refuses or fails to comply with a direction under subsection (3)  –

(a) an authorised person, with such assistants and using such force as he or she considers appropriate in the circumstances, may detain the person for such time as is necessary for the person to be arrested by a police officer under paragraph (b) ; and

(b) the person may be arrested by a police officer without warrant.

72Z.   Telephone calls

[Section 72Z Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

exempt caller means –

(a) a judge; and

(b) a magistrate; and

(c) the Ombudsman or an officer of the Ombudsman; and

(d) the Public Guardian; and

(e) a legal practitioner; and

(f) a member of the Forensic Tribunal; and

(g) a person specified as an exempt caller for the purposes of this section in standing orders issued by the Chief Forensic Psychiatrist; and

(h) a prescribed person;

telephone call means any communication made by using a telephone, radio or similar electronic device, including a communication consisting of a text message or picture.

(2)  A forensic patient has the right to receive and make telephone calls at any reasonable time, and at reasonable intervals, as determined by the controlling authority of the secure mental health unit or the Chief Forensic Psychiatrist.

(3)  Despite subsection (2) , the controlling authority, the Chief Forensic Psychiatrist or an authorised person may refuse to allow the forensic patient to receive a telephone call from, or make a telephone call to, a person, other than an exempt caller, if –

(a) it, he or she considers that –

(i) the call would be detrimental to the health and welfare of the forensic patient or his or her treatment; or

(ii) the call would or might pose a risk of harm or distress to the forensic patient or any other person in the secure mental health unit; or

(iii) making or receiving the call is not, or would not be, appropriate because the Chief Forensic Psychiatrist or an approved medical practitioner is of the opinion that the forensic patient is seriously or acutely unwell; or

(iv) the call would or might endanger the good order or security of the secure mental health unit; or

(v) the call would or might cause harm, distress or offence to the person receiving the telephone call; or

(vi) the call would or might be for an illegal purpose; or

(b) the person to whom the telephone call is or is to be made has notified the Chief Forensic Psychiatrist, the controlling authority of the secure mental health unit or the prison or detention centre in which the forensic patient was held before becoming a forensic patient that he or she does not wish to receive telephone calls from the forensic patient.

(4)  If the controlling authority, the Chief Forensic Psychiatrist or an authorised person refuses to allow a forensic patient to receive or make a telephone call, the controlling authority, Chief Forensic Psychiatrist or authorised person is to provide written notice of that refusal and the reasons for it to the Forensic Tribunal within 7 days.

(5)  If asked by the controlling authority of a secure mental health unit, the Chief Forensic Psychiatrist or an authorised person to do so, a person who makes, or wishes to make, a telephone call to a forensic patient must provide to the controlling authority, Chief Forensic Psychiatrist or authorised person –

(a) proof of the person's identity; and

(b) information as to the person's address, occupation, age and relationship to the forensic patient to be called; and

(c) information as to the purpose of the call.

(6)  A person must not, under subsection (5) , knowingly provide to the controlling authority, Chief Forensic Psychiatrist or authorised person an identity or information that is false or misleading.

Penalty:  Fine not exceeding 5 penalty units.

(7)  If a forensic patient makes a telephone call or receives a telephone call made on a reverse charges basis, the controlling authority or an authorised person may require the forensic patient to pay the costs of the call.

73.   Mail

[Section 73 Repealed by No. 72 of 2005, s. 51, Applied:20 Feb 2006] [Section 73 Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

exempt correspondent means –

(a) a judge; and

(b) a magistrate; and

(c) [Section 73 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] a legal practitioner; and

(d) any court or any commission, committee, tribunal or other board connected to the legal process, or an officer of any court or any such commission, committee, tribunal or other board; and

(e) a medical practitioner, another health provider or a health service; and

(f) the Secretary, the Secretary (Corrections) and the Secretary (Youth Justice); and

(g) the Chief Forensic Psychiatrist; and

(h) the Health Complaints Commissioner or an officer of the Health Complaints Commissioner; and

(i) the Ombudsman or an officer of the Ombudsman; and

(j) the Anti-Discrimination Commissioner or an officer of the Anti-Discrimination Commissioner; and

(k) the Office of the Public Guardian or an officer of that Office; and

(l) the Forensic Tribunal or a member of the Forensic Tribunal; and

(m) an official visitor; and

(n) the Ethics Committee established under section 9 of the Disability Services Act 1992 or a member of the Ethics Committee; and

(o) a statutory authority connected to the legal process or concerned with the rights or treatment of prisoners or patients in hospitals or an officer of such a statutory authority; and

(p) a person specified as an exempt correspondent in guidelines issued by the Forensic Tribunal; and

(q) a person specified as an exempt correspondent in standing orders issued by the Chief Forensic Psychiatrist; and

(r) a prescribed person;

mail or email includes a part of mail or email.

(2)  A forensic patient has the right to receive and send mail and, if the facility is provided at the secure mental health unit, email at any reasonable time, and at reasonable intervals, as determined by the controlling authority of the secure mental health unit.

(3)  The controlling authority, the Chief Forensic Psychiatrist or an authorised person may require that any mail or email sent to or by a forensic patient, other than mail or email sent by or to an exempt correspondent, be opened and read by an authorised person.

(4)  Despite subsection (2) , the controlling authority, the Chief Forensic Psychiatrist or an authorised person may refuse to allow the forensic patient to receive mail or email from, or send mail or email to, a person other than an exempt correspondent if –

(a) it, he or she considers that –

(i) the mail or email would be detrimental to the health and welfare of the forensic patient or his or her treatment; or

(ii) the mail or email would pose a risk of harm or distress to the forensic patient or any other person in the secure mental health unit; or

(iii) receiving or sending the mail or email is not, or would not be, appropriate because the Chief Forensic Psychiatrist or an approved medical practitioner is of the opinion that the forensic patient is seriously or acutely unwell; or

(iv) the mail or email would or might endanger the good order or security of the secure mental health unit; or

(v) the mail or email would or might cause harm, distress or offence to the person receiving the mail or email or another person; or

(vi) the mail or email would or might be for an illegal purpose; or

(b) the person to whom the mail or email is addressed has notified the controlling authority of the secure mental health unit, the prison or detention centre in which the forensic patient was held before becoming a forensic patient or the Chief Forensic Psychiatrist that he or she does not wish to receive mail or email from the forensic patient.

(5)  If the controlling authority, the Chief Forensic Psychiatrist or an authorised person refuses to allow a forensic patient to receive or send any mail or email, the controlling authority, Chief Forensic Psychiatrist or authorised person is to provide written notice of that refusal and the reasons for it to the Forensic Tribunal within 7 days.

(6)  If a forensic patient sends mail or email or receives mail or email for which a charge or fee is payable by the sender or recipient, the controlling authority or an authorised person may require the forensic patient to do so at his or her own expense.

Subdivision 4 - Further matters relating to treatment of forensic patients

73A.   Further rights of forensic patients

[Section 73A Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  Every forensic patient has the following rights:

(a) the right to be provided with an explanation of his or her mental illness or disability and proposed medical treatment and other treatment for the illness or disability;

(b) the right to be provided with food that is adequate to maintain the health and wellbeing of the forensic patient;

(c) the right to be provided with special dietary food if the Chief Forensic Psychiatrist is satisfied that such food is necessary for medical reasons, on account of the forensic patient's religious beliefs or because the forensic patient is a vegetarian;

(d) the right to be provided with basic clothing that is suitable for the climate and adequate to maintain the health of the forensic patient;

(e) the right to wear suitable clothing owned by the forensic patient;

(f) the right to have access to medical care and treatment and medical advice reasonably necessary for the preservation of health;

(g) the right to have access to dental treatment and dental advice reasonably necessary for the preservation of dental health;

(h) the right to practise a religion of the forensic patient's choice and, if consistent with the security, good order and management of the secure mental health unit, to join with other forensic patients in practising that religion and to possess such articles as are necessary for the practice of that religion;

(i) subject to Subdivision 3 , the right to receive visits from persons at reasonable times and reasonable periods with each visit being of a reasonable length;

(j) the right to advise next of kin, or a person with whom the forensic patient has had a longstanding relationship, of his or her admission to the secure mental health unit;

(k) the right to have access to legal advice;

(l) the right to be provided with information about the rules and conditions which will govern the forensic patient's behaviour in the secure mental health unit.

(2)  For the purposes of subsection (1)(j) , the question of whether a person has had a longstanding relationship with a forensic patient is to be determined by the Chief Forensic Psychiatrist.

73B.   Medical tests for HIV, &c.

[Section 73B Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

approved counsellor means a person approved by the Secretary of the responsible Department in relation to the HIV/AIDS Preventive Measures Act 1993 for the purposes of this section;

HIV means Human Immunodeficiency Virus.

(2)  The Chief Forensic Psychiatrist may require a forensic patient to undergo a test for HIV or other blood-borne diseases carried out by a medical practitioner or a nurse registered under the Nursing Act 1995  –

(a) as soon as practicable on admission to the secure mental health unit; and

(b) at such regular intervals as the Chief Forensic Psychiatrist considers appropriate or necessary in the circumstances.

(3)  If a forensic patient refuses to undergo a test, an approved counsellor nominated by the Chief Forensic Psychiatrist for the purpose is to counsel the forensic patient in respect of the necessity or desirability of undergoing the test.

(4)  A medical practitioner or nurse who, under subsection (2) , carries out a test the result of which is positive is to submit a report of the result to the Chief Forensic Psychiatrist as soon as practicable after obtaining the result.

(5)  The provisions of Divisions 1 and 2 of Part 2 , other than section 16 , of the HIV/AIDS Preventive Measures Act 1993 apply to the testing of forensic patients for HIV under this section.

(6)  Section 15 of the HIV/AIDS Preventive Measures Act 1993 applies as if a reference to an approved health care worker authorised by a medical practitioner is a reference to a nurse registered under the Nursing Act 1995 .

Subdivision 5 - Transfer of forensic patient to another secure mental health unit or a secure institution

73C.   Transfer of forensic patient to another secure mental health unit

[Section 73C Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Chief Forensic Psychiatrist may direct that a forensic patient be transferred from one secure mental health unit to another secure mental health unit if –

(a) the transfer is necessary or desirable –

(i) for the care or treatment of the patient; or

(ii) for the purpose of avoiding or minimising risk to other persons; and

(b) the controlling authorities concerned agree to the transfer.

(2)  If the Chief Forensic Psychiatrist has directed the transfer of a forensic patient, the Chief Forensic Psychiatrist or the controlling authority of the secure mental health unit may appoint a person to take charge of the forensic patient while being transferred from one secure mental health unit to the other.

(3)  While the forensic patient is being transferred from one secure mental health unit to the other –

(a) the forensic patient remains in the custody of the controlling authority of the secure mental health unit from which he or she is being removed until he or she is admitted to the secure mental health unit to which he or she is being transferred; and

(b) the person appointed under subsection (2) has the authority to act in the name of the controlling authority and as an authorised person for the purposes of this Part.

(4)  When the forensic patient is transferred, an order for detention of the forensic patient has effect as if it provided for the detention of the forensic patient in the secure mental health unit to which the forensic patient is transferred.

(5)  The Forensic Tribunal may, on application by the forensic patient or another person who satisfies the Forensic Tribunal that he or she has a proper interest in the matter, review a decision to transfer a forensic patient under this section.

(6)  On a review under subsection (5) , the Forensic Tribunal may confirm, vary or revoke the decision and give consequential directions.

73D.   Secure institution

[Section 73D Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] The Minister may approve an institution other than a hospital as a secure institution.

73E.   Removal of forensic patient to hospital, secure institution, &c.

[Section 73E Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Chief Forensic Psychiatrist may direct that a forensic patient be removed from a secure mental health unit to a hospital, a health service within the meaning of the Health Complaints Act 1995 , premises where such a health service is provided or a secure institution.

(2)  On the making of a direction under subsection (1) , the Chief Forensic Psychiatrist or the controlling authority of the secure mental health unit may appoint a person to take charge of the forensic patient while the forensic patient is in the hospital, health service, premises or secure institution pursuant to the direction.

(3)  While the forensic patient is in a hospital, health service, premises or secure institution pursuant to a direction under subsection (1)  –

(a) the forensic patient remains in the custody of the controlling authority of the secure mental health unit; and

(b) the person appointed under subsection (2) has the authority to act in the name of the controlling authority and as an authorised person for the purposes of this Part.

Division 4 - Return of forensic patients to secure mental health unit

73F.   Return of forensic patients in Tasmania to secure mental health unit

[Section 73F Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  This section applies to a forensic patient who is not subject to a restriction order.

Note

The return to a secure mental health unit of a forensic patient subject to a restriction order is provided for in the Criminal Justice (Mental Impairment) Act 1999 .

(2)  If a forensic patient –

(a) is absent without leave of absence granted under Subdivision 2 of Division 3 while in the custody of the controlling authority of the secure mental health unit; or

(b) contravenes a condition on which such a leave of absence was so granted –

the controlling authority may authorise a police officer or an authorised officer, in writing, to take the patient into protective custody and return him or her to the secure mental health unit as soon as practicable.

(3)  This section does not apply if the order under which the forensic patient is liable to detention in a prison or a secure mental health unit has been discharged or has expired without being renewed.

73G.   Return of forensic patients outside Tasmania to secure mental health unit

[Section 73G Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  This section applies to a forensic patient other than one who is subject to –

(a) an order of detention referred to in section 41(1A) of the Criminal Justice (Mental Impairment) Act 1999 ; or

(b) a continuing care order referred to in section 41(1B) of that Act.

(2)  A magistrate may issue a warrant authorising the arrest of a forensic patient and his or her return to a secure mental health unit if he or she suspects on reasonable grounds that the forensic patient –

(a) is absent without leave of absence granted under Subdivision 2 of Division 3 while in the custody of the controlling authority of the secure mental health unit; and

(b) is no longer in Tasmania.

Division 5 - Miscellaneous

73H.   Searching persons in secure mental health unit

[Section 73H Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  For the security or good order and management of a secure mental health unit, or for the safety of persons in a secure mental health unit, the controlling authority of the secure mental health unit or the Chief Forensic Psychiatrist may require or authorise an authorised person to do one or more of the following in accordance with the requirement or authorisation:

(a) search any part of the secure mental health unit;

(b) search and examine a forensic patient, a visitor to the secure mental health unit, a member of the staff of the secure mental health unit, a medical practitioner or another person present in the secure mental health unit;

(c) search and examine any thing in the secure mental health unit;

(d) as well as the formal search required by section 72Y , require a person wishing to enter or remain in a secure mental health unit to submit to a search and examination of the person and of any thing in the person's possession or under the person's control;

(e) conduct any search or examination under paragraph (a) , (b) , (c) or (d) at random.

(2)  A search or examination of a person, or a thing in a person's possession or under a person's control, may be conducted without the person's consent and using such restraint and force as is reasonable in the circumstances if –

(a) the person is a forensic patient; or

(b) the person is a member of the staff of a secure mental health unit who has refused to submit himself or herself or the thing in or under his or her possession or control for search or examination while in the secure mental health unit.

(3)  If a person, other than a forensic patient or a member of the staff of the secure mental health unit, refuses to submit to be searched or examined under this section while in the secure mental health unit, an authorised person may direct the person to leave the secure mental health unit immediately.

(4)  A person must comply with a direction under subsection (3) .

Penalty:  Fine not exceeding 5 penalty units.

(5)  If a person refuses or fails to comply with a direction under subsection (3)  –

(a) an authorised person may detain the person for such time as is necessary for the person to be arrested by a police officer under paragraph (b) ; and

(b) the person may be arrested by a police officer without warrant.

(6)  A search or examination of a visitor to the secure mental health unit under this section that involves the visitor undressing or the person who makes the search touching the visitor is to be made by a medical practitioner, or member of staff of the secure mental health unit, of the same gender as the visitor and in the presence of persons of that gender only unless the Chief Forensic Psychiatrist directs otherwise.

(7)  For the purpose of exercising the powers conferred by this section, an authorised person may use such force, means and assistants as he or she considers reasonably necessary for the purpose.

73I.   Seizure

[Section 73I Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In carrying out a search or examination under section 72Y or 73H , the Chief Forensic Psychiatrist or an authorised person may seize any one or more of the following:

(a) any thing found in the secure mental health unit, whether in a person's possession or not, which the Chief Forensic Psychiatrist or authorised person believes on reasonable grounds jeopardises or is likely to jeopardise the security or good order and management of the secure mental health unit or the safety of persons in the secure mental health unit;

(b) any thing found on a forensic patient or in or under a forensic patient's possession or control, other than a thing which the forensic patient is authorised to wear or to possess under this Part, the regulations, standing orders issued by the Chief Forensic Psychiatrist or a direction of the controlling authority;

(c) any thing which the Chief Forensic Psychiatrist or authorised person believes on reasonable grounds jeopardises or is likely to jeopardise the security or good order or management of the secure mental health unit or the safety of persons in the secure mental health unit, despite that thing being something the forensic patient is authorised to wear or to possess under this Part, the regulations, standing orders issued by the Chief Forensic Psychiatrist or a direction of the controlling authority.

(2)  If the Chief Forensic Psychiatrist or an authorised person seizes any thing under subsection (1) , the Chief Forensic Psychiatrist or authorised person is to immediately inform the controlling authority of the secure mental health unit of that fact.

(3)  The controlling authority of the secure mental health unit is to ensure that any thing seized under this section –

(a) from a visitor or member of the staff of the secure mental health unit is returned to that visitor or member of staff when he or she leaves the secure mental health unit; or

(b) from a forensic patient is, on the discharge of the forensic patient from the secure mental health unit, returned to or given into the custody of the forensic patient, the Director, the Secretary (Youth Justice) or the controlling authority of an approved hospital, as appropriate –

unless that thing is a drug of dependence or a thing which is illegal for a person to possess or carry.

73J.   Offence to bring certain things into secure mental health unit

[Section 73J Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A person must not bring into a secure mental health unit a thing that the Chief Forensic Psychiatrist or the controlling authority has not authorised to be brought into the secure mental health unit.

Penalty:  Fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both.

(2)  If a member of the staff of a secure mental health unit finds a person contravening subsection (1) , an authorised person, with such assistants and using such force as he or she considers appropriate in the circumstances, may detain that person pending the arrival of a police officer.

(3)  A police officer may arrest without warrant a person who the police officer reasonably believes has contravened subsection (1) .

(4)  In addition to any other penalty that may be imposed, a person who is convicted of an offence against subsection (3) is not entitled to be employed in or undertake any work, including the practice of medicine, in any secure mental health unit unless the Secretary determines otherwise.

73K.   Bringing prisoners before courts

[Section 73K Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

new offence means –

(a) an offence other than the offence which was the cause of a person becoming a prisoner; or

(b) an offence other than the offence which resulted in a person being detained in a secure mental health unit under an order of a court; or

(c) in the case of an involuntary patient admitted to a secure mental health unit, any offence.

(2)  If a patient in the custody of the controlling authority of a secure mental health unit is charged with a new offence, a justice, by written order, may direct the controlling authority to bring the patient before the court specified in the order or the judge or magistrate who is then present to be dealt with according to law.

(3)  A judge or magistrate may order the controlling authority of a secure mental health unit to bring a patient in the custody of the controlling authority before the judge or magistrate to give evidence.

(4)  If a justice, judge or magistrate is considering making an order under subsection (2) or (3) , the justice, judge or magistrate is to take into account the advice of the Chief Forensic Psychiatrist or an approved medical practitioner as to the fitness of the patient to attend at court.

(5)  The controlling authority of a secure mental health unit –

(a) is to comply with an order under subsection (2) or (3) as soon as practicable; and

(b) when complying with the order, is to comply with the standing orders issued by the Chief Forensic Psychiatrist.

(6)  Before making an order under subsection (3) , a judge or magistrate may require an applicant to deposit sufficient money to pay all the expenses involved in bringing the patient before the court and maintaining the patient from the time he or she leaves, until the time of return to, the secure mental health unit.

73L.   Presence at taking of certain depositions

[Section 73L Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  If a patient in the custody of the controlling authority of a secure mental health unit has received notice of an intention to take the deposition of a person dangerously ill and unable to travel, the controlling authority, at the request of a judge or magistrate, may bring the patient to a place specified in the request for the taking of the deposition.

(2)  If a judge or magistrate is considering making a request under subsection (1) , the judge or magistrate is to take into account the advice of the Chief Forensic Psychiatrist or an approved medical practitioner as to the fitness of the patient to attend at the taking of the deposition.

73M.   Court may proceed in absence of forensic patient, &c.

[Section 73M Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] Despite any other law to the contrary, on the advice of the Chief Forensic Psychiatrist a court may –

(a) hear a matter or otherwise proceed with proceedings before the court in the absence of a forensic patient who is a party to the proceedings if the forensic patient has legal representation; or

(b) hold the hearing or proceedings in any place the court considers appropriate.

73N.   Custody

[Section 73N Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] While a person is a forensic patient, he or she is in the custody of the controlling authority of the secure mental health unit to which the person is admitted as a forensic patient unless he or she is in the custody of another person under an order of a court.

73O.   Application of Part to places other than secure mental health units

[Section 73O Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] If a forensic patient is in the custody of the controlling authority of a secure mental health unit but is being detained in a hospital, a health service within the meaning of the Health Complaints Act 1995 , premises where such a health service is provided, a secure institution or another place, those provisions of this Part as are appropriate apply –

(a) in respect of the forensic patient as if he or she were in the secure mental health unit; and

(b) in respect of the hospital, health service, premises, secure institution or other place as if it were a secure mental health unit.

73P.   Notifying persons of release

[Section 73P Amended by No. 76 of 2009, s. 24, Applied:11 Dec 2009] [Section 73P Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] Before a forensic patient is released from a secure mental health unit or transferred to another secure mental health unit, the controlling authority is to request the Secretary (Corrections) to search the eligible persons register and notify any person listed in that register in relation to the forensic patient that the forensic patient is being so released or transferred unless it is not practicable to notify such a person in the circumstances.

73Q.   Application of Corrections Act 1997 to forensic patients who are prisoners

[Section 73Q Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  Except as provided in subsection (2) , Parts 4 , 5 , 6 , 7 and 9 of the Corrections Act 1997 do not apply to a forensic patient who is also a prisoner.

(2)  Sections 86 and 87(1)(b) of the Corrections Act 1997 apply to a forensic patient who is also a prisoner.

73R.   Warrant of commitment not void

[Section 73R Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] A warrant of commitment is not to be held void by reason of a formal defect in it.

73S.   Preservation of royal prerogative of mercy

[Section 73S Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] Nothing in this Act is to be construed so as to limit or affect in any way the exercise in relation to a forensic patient who is also a prisoner of the royal prerogative of mercy.

PART 10B - Forensic Tribunal

Division 1 - Establishment of Forensic Tribunal

73T.   Establishment of Forensic Tribunal

[Section 73T Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Forensic Tribunal is established.

(2)  All courts and persons acting judicially must take judicial notice of any document purporting to be made by the Forensic Tribunal and presume that it was duly made by the Forensic Tribunal.

73U.   Membership of Forensic Tribunal

[Section 73U Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] [Section 73U Substituted by No. 65 of 2007, s. 24, Applied:01 Jan 2008]

(1)  The Forensic Tribunal consists of –

(a) if the Presidents of the Board and Mental Health Tribunal are both available –

(i) those 2 Presidents; and

(ii) one other person; or

(b) if only one of those Presidents is available –

(i) the available President; and

(ii) 2 other persons.

(2)  Ordinary members are appointed by the Minister from the Forensic Tribunal Member Register for the term or for the purposes of a particular matter determined by the Minister.

(3)  The chairperson of the Forensic Tribunal is –

(a) if it is constituted as provided by subsection (1)(a) , the President of the Mental Health Tribunal; or

(b) if it is constituted as provided by subsection (1)(b) , the available President.

(4)  Schedule 1A has effect with respect to the membership of the Forensic Tribunal.

(5)  An act or decision of the Forensic Tribunal is not invalidated by reason only of a defect or irregularity in the appointment of a member.

73V.   Functions and powers of Forensic Tribunal

[Section 73V Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Forensic Tribunal has the following functions:

(a) to hear and determine applications for leave from the secure mental health unit in respect of forensic patients who are subject to restriction orders;

(b) to carry out under section 37 of the Criminal Justice (Mental Impairment) Act 1999 reviews of orders made under that Act in relation to their application to forensic patients;

(c) to hear and determine applications under section 72I for the authorisation of medical treatment for forensic patients;

(d) to receive reports relating to medical treatment provided to forensic patients without informed consent;

(e) to receive reports relating to the seclusion and restraint of forensic patients;

(f) to receive reports relating to restrictions imposed with respect to the receipt, or sending or making, by forensic patients of mail, email and telephone calls;

(g) to issue guidelines for the purposes of sections 72L , 72M and 72N ;

(h) to review, as provided by section 36B of the Corrections Act 1997 , decisions as to whether or not prisoners are to be admitted to a secure mental health unit;

(i) to review, as provided by section 134B of the Youth Justice Act 1997 , decisions as to whether or not youth detainees are to be admitted to a secure mental health unit;

(j) [Section 73V Subsection (1) amended by No. 1 of 2007, s. 6, Applied:17 Apr 2007] to review, on the application of responsible applicants, the transfer under Part 12 of –

(i) forensic patients who are not prisoners; and

(ii) persons who are subject to supervision orders;

(k) [Section 73V Subsection (1) amended by No. 1 of 2007, s. 6, Applied:17 Apr 2007] other functions imposed by this or any other Act.

(2)  The Forensic Tribunal has power to do all things necessary or convenient to be done in connection with the performance of its functions.

(3)  [Section 73V Subsection (3) inserted by No. 1 of 2007, s. 6, Applied:17 Apr 2007] In this section –

responsible applicant, in relation to a person who is subject to a supervision order or a forensic patient, means –

(a) the person or forensic patient; or

(b) an applicant who is responsible for the person or forensic patient; or

(c) an applicant who, in the opinion of the Forensic Tribunal, has a proper interest in the welfare of the person or forensic patient.

73W.   Decisions of Forensic Tribunal

[Section 73W Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A majority of the members of the Forensic Tribunal is competent to transact any business of the Forensic Tribunal.

(2)  A decision in which a majority of the members of the Forensic Tribunal agree is a decision of the Forensic Tribunal.

73X.   Staff of Forensic Tribunal

[Section 73X Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Secretary of the Department is to arrange for the services of State Service employees or State Service officers employed in the Department to be made available to enable the Forensic Tribunal to perform and exercise its functions and powers.

(2)  A State Service employee or State Service officer made available under subsection (1) may serve the Forensic Tribunal in conjunction with State Service employment.

73Y.   Assistance, resources and facilities

[Section 73Y Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] The Secretary of the Department is to arrange to be provided to the Forensic Tribunal from the resources of the Department such assistance, resources and facilities as are necessary to enable the Forensic Tribunal to perform and exercise its functions and powers.

73Z.   Appointment of persons to assist Forensic Tribunal

[Section 73Z Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] The Forensic Tribunal may appoint a legal practitioner, medical practitioner or other person with appropriate expertise to assist the Forensic Tribunal in proceedings before it.

Division 2 - Proceedings of Forensic Tribunal

74.   Interpretation of Division

[Section 74 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 74 Repealed by No. 72 of 2005, s. 52, Applied:20 Feb 2006] [Section 74 Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] In this Division –

party to proceedings includes –

(a) the forensic patient; and

(b) if relevant, the Chief Forensic Psychiatrist; and

(c) if relevant, the controlling authority of the secure mental health unit; and

(d) any other person to whom the Forensic Tribunal has given a notice of review in respect of the proceedings.

74A.   Sittings

[Section 74A Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] The Forensic Tribunal is to sit at times and places determined by its chairperson.

74B.   Notification of hearings

[Section 74B Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] The Forensic Tribunal –

(a) is to give reasonable notice of a hearing of proceedings to each party; and

(b) unless it considers that it is not appropriate in the circumstances, is to give reasonable notice of a hearing of proceedings to each of the following persons who is not a party:

(i) the Public Guardian;

(ii) the Chief Forensic Psychiatrist;

(iii) the controlling authority of the secure mental health unit concerned;

(iv) the Director of Public Prosecutions.

74C.   General principles for hearings

[Section 74C Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Forensic Tribunal, in hearing a matter, including a review of a decision –

(a) must act according to good conscience having regard to the objects and principles specified in sections 6 and 7 ; and

(b) is bound by the rules of natural justice.

(2)  The Forensic Tribunal must avoid unnecessary formality.

74D.   Representation in proceedings before Forensic Tribunal

[Section 74D Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  A party to proceedings –

(a) is entitled to be present, in person, when the Forensic Tribunal hears the proceedings unless the Forensic Tribunal determines otherwise; and

(b) may appear personally in the proceedings or be represented by a legal practitioner or other person.

(2)  For the purposes of subsection (1)(a) , the Forensic Tribunal may determine that a party to proceedings, including the forensic patient, may not be present in person if it is of the opinion that it may be detrimental to the health of the forensic patient for the person to be so present.

(3)  If the Forensic Tribunal determines that a party to proceedings may not be present in person, the party is entitled to be present by audio link, or audio visual link, within the meaning of the Evidence (Audio and Audio Visual Links) Act 1999 , if so determined, and as determined, by the Forensic Tribunal.

(4)  The Forensic Tribunal may not determine that a party to proceedings may be present by audio link or audio visual link if the facilities are not available.

(5)  The Forensic Tribunal may make arrangements, including adjournment of the proceedings, for the representation of a party to proceedings before it.

74E.   Evidence before Forensic Tribunal

[Section 74E Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Forensic Tribunal is not bound by the rules of evidence but may inform itself as it considers appropriate.

(2)  Evidence before the Forensic Tribunal may be given –

(a) orally, in writing or partly orally and partly in writing; and

(b) on oath or affirmation or by statutory declaration.

(3)  An oath or affirmation to a witness may be administered by any member of the Forensic Tribunal.

(4)  Evidence given before the Forensic Tribunal is not admissible in civil or criminal proceedings other than –

(a) in proceedings for an offence against this Act; or

(b) in proceedings for an offence committed at, or arising out of, a hearing before the Forensic Tribunal; or

(c) in any other proceedings under this Act; or

(d) in proceedings under the Criminal Justice (Mental Impairment) Act 1999 or Guardianship and Administration Act 1995 ; or

(e) in proceedings where another Act specifically allows or requires the admission of that evidence.

(5)  A person who appears as a witness before the Forensic Tribunal has the same protection as a witness in proceedings before the Court.

(6)  Despite sections 127A and 127B of the Evidence Act 2001 , a medical practitioner or counsellor may disclose to the Forensic Tribunal information without the consent of the forensic patient to whom the information relates.

74F.   Summoning of witnesses

[Section 74F Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Forensic Tribunal, on its own initiative or on the application of a party to proceedings, may summon a person –

(a) to appear before it and give evidence at the time and place specified in the summons; or

(b) to provide any documents to the Forensic Tribunal as specified in the summons; or

(c) to so appear before it and so provide documents.

(2)  A summons must be served personally, by post or as otherwise determined by the Forensic Tribunal.

(3)  Without limiting the manner in which the Forensic Tribunal may determine a summons to be served, it may determine that service is to be by substituted service.

74G.   Power to require reports, &c.

[Section 74G Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Forensic Tribunal may require the Chief Forensic Psychiatrist or the controlling authority of a secure mental health unit or an approved hospital to provide it with –

(a) a report on the forensic patient to whom proceedings before the Forensic Tribunal relate; and

(b) copies of records about the care and treatment of such a forensic patient.

(2)  If a forensic patient to whom proceedings before the Forensic Tribunal relate was transferred to the secure mental health unit from a prison, the Forensic Tribunal may require the Director or the Secretary (Youth Justice) to provide it with –

(a) a report on the forensic patient; and

(b) copies of records about the care and treatment of the forensic patient while in the prison.

74H.   Medical examinations

[Section 74H Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  In this section –

medical examination includes an examination of the physical, psychological and mental capacities of a forensic patient.

(2)  The Forensic Tribunal, by notice in writing, may require a forensic patient to whom proceedings before the Forensic Tribunal relate to submit to a medical examination by a medical practitioner specified by the Forensic Tribunal, including a medical practitioner who is a member of the Forensic Tribunal.

(3)  The Forensic Tribunal must not require a patient to submit to a medical examination unless, having regard to the relevant inquiry, it is reasonable to require that examination.

(4)  A notice under subsection (2) is to specify –

(a) the name of the medical practitioner who is to carry out the examination; and

(b) the date, time and place of the examination.

(5)  The date, time and place specified for a medical examination must be reasonable.

(6)  The medical practitioner who carries out the medical examination must provide the Forensic Tribunal and the patient with a written report on the results of that examination.

74I.   Visits by Forensic Tribunal

[Section 74I Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] The Forensic Tribunal, or any one or more of its members, may visit and interview in private any forensic patient by or in respect of whom an application has been made to the Forensic Tribunal or who is the subject of a forensic order being reviewed by the Forensic Tribunal.

74J.   Right of certain persons to intervene

[Section 74J Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] The Public Guardian, the controlling authority of a secure mental health unit, the Director of Public Prosecutions and the Chief Forensic Psychiatrist may intervene and be represented in any proceedings before the Forensic Tribunal.

74K.   Proceedings to be closed

[Section 74K Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  All proceedings before the Forensic Tribunal are closed to members of the public unless the Tribunal otherwise orders.

(2)  If proceedings before the Forensic Tribunal are open to the public, a person who is directly interested in the proceedings may request the Tribunal to have the proceedings or part of the proceedings closed to the public.

(3)  On a request under subsection (2) , the Forensic Tribunal may direct that any person –

(a) who in its opinion is not directly interested in the proceedings; or

(b) who has not been authorised by the Tribunal to be present at the proceedings –

is to be excluded from the place where the proceedings are being, or are to be, heard.

(4)  If a person hinders or disrupts the proper conduct of the proceedings, the Forensic Tribunal may exclude the person from the hearing.

74KA.   General regulation of proceedings

[Section 74KA Inserted by No. 65 of 2007, s. 25, Applied:01 Jan 2008] Except as otherwise provided by this Act, the Forensic Tribunal may regulate its own proceedings.

Division 3 - Forensic Tribunal Member Register

74L.   Forensic Tribunal Member Register

[Section 74L Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  [Section 74L Subsection (1) amended by No. 65 of 2007, s. 26, Applied:01 Jan 2008] The Secretary must keep a register of persons from whom ordinary members of the Forensic Tribunal are to be appointed.

(2)  A person, in writing, may request the Secretary to remove the person's name from the Forensic Tribunal Member Register at any time.

(3)  The Secretary is to –

(a) keep the Forensic Tribunal Member Register current; and

(b) remove from the Forensic Tribunal Member Register the name of any person who has been entered in it for a period of 3 years and has not been nominated, or has not made an application, for further entry in the Register at the end of that period; and

(c) remove from the Forensic Tribunal Member Register the name of any person who has requested it; and

(d) remove from the Forensic Tribunal Member Register the name of any person who the Secretary has become aware is no longer residing in the State or is no longer qualified or suitable to be entered in the Register.

74M.   Calling for interested persons

[Section 74M Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006] For the purposes of ensuring that a reasonable selection of people is entered in the Forensic Tribunal Member Register, the Secretary, on the recommendation of the Chief Forensic Psychiatrist, may –

(a) by advertising in 3 daily newspapers published and circulating in the State, request any person, or any person of a class specified in the request, interested in being entered in the Forensic Tribunal Member Register to apply to the Secretary; and

(b) request State Service officers and State Service employees, or persons employed in or for the purposes of a statutory authority, that the Secretary considers have functions or powers that are relevant to the matters that the Forensic Tribunal is required to consider to apply for entry in the Forensic Tribunal Member Register; and

(c) request persons, or persons of a class specified in the request, who are employed in or concerned with the provision of health services to apply for entry in the Forensic Tribunal Member Register.

74N.   Entering persons in Forensic Tribunal Member Register

[Section 74N Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  On receipt of an application for the entry of a person in the Forensic Tribunal Member Register, the Secretary must inquire into the qualifications and suitability of the person to be so entered.

(2)  If the Secretary considers that the nominee or applicant is qualified and suitable to be entered in the Forensic Tribunal Member Register, the Secretary is to –

(a) enter in the Register the person's name, address and qualifications, and any other information the Secretary considers appropriate; and

(b) notify the person, in writing, that the person has been entered in the Forensic Tribunal Member Register and that the person will remain in the Register for the period of 3 years.

(3)  Despite subsection (2) , the Secretary is not to enter the name of a person in the Forensic Tribunal Member Register unless –

(a) in the case of a State Service officer or State Service employee employed in a State Service Agency other than the Department, the Head of the State Service Agency has consented to that officer or employee being so entered in the Forensic Tribunal Member Register; or

(b) in the case of a person employed in, or for the purposes of, a statutory authority and required by any Act to devote the whole of his or her time to the duties of that employment, the statutory authority has consented to that person being so entered in the Forensic Tribunal Member Register.

(4)  In determining who is qualified and suitable to be entered in the Forensic Tribunal Member Register, the Secretary is to seek the advice of the Chief Forensic Psychiatrist.

Division 4 - Miscellaneous

74O.   Annual report of Forensic Tribunal

[Section 74O Inserted by No. 72 of 2005, s. 50, Applied:20 Feb 2006]

(1)  The Forensic Tribunal must, in respect of each financial year, prepare an annual report giving full particulars of the exercise of its powers under this Act during the financial year and must provide the Minister with the report before the following 30 September.

(2)  The Minister must cause the report to be laid before each House of Parliament within 14 sitting-days of that House after receiving the report.

PART 11 - Official visitors

Division 1 - Appointment

74P.   Appointment of official visitors

[Section 74P Inserted by No. 72 of 2005, s. 51, Applied:20 Feb 2006]

(1)  The Governor may, on the recommendation of the Minister, appoint official visitors.

(2)  An appointment is to be made –

(a) for a region specified in the instrument of appointment; or

(b) for a nominated approved hospital; or

(c) for a nominated secure mental health unit –

and for each such region, hospital or secure mental health unit one of the official visitors is to be appointed as coordinator to arrange the visits and the exercise of the other functions of the official visitors.

(3)  A person is not eligible for appointment if the person –

(a) holds an office in the Department; or

(b) has an interest in a contract with the Crown, an approved hospital or a secure mental health unit; or

(c) has a financial interest in an approved hospital or a secure mental health unit.

74Q.   Terms and conditions of appointment

[Section 74Q Inserted by No. 72 of 2005, s. 52, Applied:20 Feb 2006]

(1)  An appointment as an official visitor is made –

(a) for a term, not exceeding 3 years, specified in the instrument of appointment; and

(b) on terms and conditions specified in the instrument of appointment.

(2)  An official visitor –

(a) is entitled to such remuneration and allowances as the Minister may approve; and

(b) is not, as an official visitor, subject to the State Service Act 2000 .

(3)  An appointment as official visitor terminates if the official visitor –

(a) resigns by written notice of resignation given to the Minister; or

(b) is convicted of an indictable offence, or an offence which, if committed in Tasmania, would be an indictable offence; or

(c) becomes incapable of performing the duties of an official visitor; or

(d) is removed from office as an official visitor by the Governor.

Division 2 - Functions of official visitor

75.   Functions of official visitor

An official visitor has the following functions:

(a) [Section 75 Amended by No. 72 of 2005, s. 53, Applied:20 Feb 2006] to examine the adequacy of the services for the assessment and treatment of mental illnesses in the region or in the approved hospital or secure mental health unit for which the official visitor is appointed;

(b) [Section 75 Amended by No. 72 of 2005, s. 53, Applied:20 Feb 2006] to examine the appropriateness and standard of facilities for the accommodation, assessment, care and treatment of persons with mental illnesses in the relevant region, approved hospital or secure mental health unit;

(c) [Section 75 Amended by No. 72 of 2005, s. 53, Applied:20 Feb 2006] to investigate the opportunities and examine the facilities for the recreation, occupation, education, training and rehabilitation of persons receiving care or treatment for mental illness in the relevant region, approved hospital or secure mental health unit;

(d) to investigate any suspected contravention of this Act in the care or treatment of persons with mental illnesses and, in particular, unnecessary bodily restraint, seclusion or other restriction on freedom;

(e) to visit patients and assess the adequacy of their care and treatment;

(f) to investigate complaints made by persons receiving care or treatment for mental illness.

76.   Exercise of functions by panels of official visitors

(1)  Official visitors may act individually or in panels.

(2)  A panel of official visitors consists of 2 official visitors.

Division 3 - Visits by official visitor

77.   Visiting approved hospitals and secure mental health unit

(1)  [Section 77 Subsection (1) amended by No. 72 of 2005, s. 54, Applied:20 Feb 2006] An official visitor, or a panel of official visitors, must visit an approved hospital or secure mental health unit in accordance with arrangements made by the coordinating official visitor and may visit it at any other time.

(2)  [Section 77 Subsection (2) amended by No. 72 of 2005, s. 54, Applied:20 Feb 2006] A visit to an approved hospital or secure mental health unit is to be made at least once a month and may be made without notice.

(3)  [Section 77 Subsection (3) amended by No. 72 of 2005, s. 54, Applied:20 Feb 2006] An official visitor may require the Chief Forensic Psychiatrist, or the senior approved medical practitioner or another member of staff of an approved hospital or a secure mental health unit who appears to be in a position to do so–

(a) [Section 77 Subsection (3) amended by No. 72 of 2005, s. 54, Applied:20 Feb 2006] to facilitate inspection of the approved hospital or secure mental health unit by the official visitor or the panel; and

(b) [Section 77 Subsection (3) amended by No. 72 of 2005, s. 54, Applied:20 Feb 2006] to produce for inspection by the official visitor or the panel records relating to the admission, care and treatment of patients in the hospital or forensic patients and other patients in the secure mental health unit; and

(c) [Section 77 Subsection (3) amended by No. 72 of 2005, s. 54, Applied:20 Feb 2006] to arrange interviews between the official visitor or the panel and patients in the hospital or forensic patients and other patients in the secure mental health unit; and

(d) [Section 77 Subsection (3) amended by No. 72 of 2005, s. 54, Applied:20 Feb 2006] to answer questions about the care or treatment of patients in the hospital or forensic patients and other patients in the secure mental health unit.

(4)  A person must comply with a request under subsection (3) .

Penalty:  Fine not exceeding 20 penalty units.

78.   Controlling authority to facilitate visits on request

[Section 78 Amended by No. 72 of 2005, s. 55, Applied:20 Feb 2006] If a patient in an approved hospital or a forensic patient or other patient in a secure mental health unit asks a member of staff to arrange a visit by an official visitor, the controlling authority of the hospital or secure mental health unit must pass on details of the request to an official visitor as soon as practicable after it is made.

Penalty:  Fine not exceeding 10 penalty units.

Division 4 - Reports by official visitors

79.   Reports of suspected contravention of this Act

[Section 79 Substituted by No. 72 of 2005, s. 56, Applied:20 Feb 2006] If an official visitor suspects on reasonable grounds a contravention of this Act in relation to the care or treatment of a patient with a mental illness, the official visitor must report the suspicion and the grounds on which it is held to –

(a) the Mental Health Tribunal if the patient is in an approved hospital; or

(b) the Forensic Tribunal if the patient is a forensic patient or an involuntary patient in a secure mental health unit.

80.   Reports at the Minister's request

An official visitor must, at the Minister's request, report on any matter within the scope of the official visitor's functions.

81.   Annual report by coordinating official visitor

(1)  [Section 81 Subsection (1) amended by No. 72 of 2005, s. 57, Applied:20 Feb 2006] An official visitor appointed as coordinator must, on or before 31 August each year, provide a report to the Secretary on the visits and investigations made by the official visitors in the relevant region or to the relevant approved hospital or secure mental health unit in the course of the previous year ending on 30 June and the results of the visits and investigations.

(2)  The annual report must include any information required by the Secretary.

PART 12 - Intergovernmental agreements

Division 1 - [Division 1 of Part 12 Heading inserted by No. 35 of 2002, s. 10, Applied:14 Nov 2002] Humanitarian transfer

82.   Transfer agreements

(1)  [Section 82 Subsection (1) substituted by No. 35 of 2002, s. 11, Applied:14 Nov 2002] [Section 82 Subsection (1) substituted by No. 72 of 2005, s. 58, Applied:20 Feb 2006] [Section 82 Subsection (1) substituted by No. 1 of 2007, s. 7, Applied:17 Apr 2007] The Minister may enter into an agreement with the Minister responsible for the administration of a corresponding law providing for the transfer of any one or more of the following:

(a) involuntary patients;

(b) forensic patients who are not prisoners;

(c) persons who are subject to supervision orders.

(2)  The Minister must give notice in the Gazette of the making or amendment of an agreement under this section and of the terms of the agreement or amendment.

83.   Effect of transfer agreements

(1)  [Section 83 Subsection (1) amended by No. 1 of 2007, s. 8, Applied:17 Apr 2007] [Section 83 Subsection (1) amended by No. 35 of 2002, s. 12, Applied:14 Nov 2002] Where an agreement in force under this Division so provides –

(a) [Section 83 Subsection (1) amended by No. 72 of 2005, s. 59, Applied:20 Feb 2006] an involuntary patient or forensic patient may be transferred in accordance with the agreement from an approved hospital or secure mental health unit in Tasmania to a place for the detention, care and treatment of persons with mental illnesses in the State or Territory to which the agreement relates; and

(b) [Section 83 Subsection (1) amended by No. 72 of 2005, s. 59, Applied:20 Feb 2006] an involuntary patient or forensic patient may be transferred in accordance with the agreement to an approved hospital or secure mental health unit in Tasmania from a place for the detention, care and treatment of persons with mental illnesses in the State or Territory to which the agreement relates; and

(c) [Section 83 Subsection (1) amended by No. 1 of 2007, s. 8, Applied:17 Apr 2007] an order for the treatment of mental illness in the community made under the relevant corresponding law has effect, subject to any adaptations and modifications for which the agreement provides, as if it were a community treatment order made under this Act; and

(d) [Section 83 Subsection (1) amended by No. 1 of 2007, s. 8, Applied:17 Apr 2007] an order made under the relevant corresponding law and corresponding to a supervision order has effect, subject to any adaptations and modifications for which the agreement provides, as if it were a supervision order with conditions corresponding to those of the order made under the corresponding law; and

(e) [Section 83 Subsection (1) amended by No. 1 of 2007, s. 8, Applied:17 Apr 2007] the supervision of a person subject to a supervision order may be transferred from the Chief Forensic Psychiatrist to a medical practitioner in the State or Territory to which the agreement relates.

(2)  The agreement may provide for incidental matters such as the transfer and registration of relevant orders and the transfer of clinical notes and other relevant materials.

(3)  On a transfer of an involuntary patient as mentioned in subsection (1) (b) , an order for his or her detention under the law of the relevant State or Territory has effect, subject to any adaptations and modifications for which the relevant agreement provides, as if it were a continuing care order made under this Act.

(4)  [Section 83 Subsection (4) inserted by No. 72 of 2005, s. 59, Applied:20 Feb 2006] On a transfer of a forensic patient as mentioned in subsection (1) (b) , an order for his or her detention under the law of the relevant State or Territory has effect, subject to any adaptations and modifications for which the relevant agreement provides, as if it were a restriction order, continuing care order, order imposing a sentence of imprisonment or other order made in this State.

Division 2 - Apprehension and return of absconding involuntary patients, &c.

83A.   Interpretation of Division

[Section 83A of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002] In this Division –

[Section 83A Amended by No. 1 of 2007, s. 10, Applied:17 Apr 2007] abscond includes being absent without leave of absence;

affected jurisdiction, in relation to a corresponding law, means the State in which that law is in force;

continuing care order includes any continuing care order to which this Act applies by virtue of section 5A ;

corresponding law means a law of another State that is prescribed as a corresponding law for the purposes of this Division;

[Section 83A Amended by No. 1 of 2007, s. 10, Applied:17 Apr 2007] forensic patient does not include a forensic patient who is a prisoner;

involuntary patient includes a person who is subject to a continuing care order within the meaning of this Division;

mental health facility means a hospital or other facility at which, under a corresponding law, persons with mental illnesses may be detained involuntarily and treated;

State includes Territory.

83B.   Agreements for the return, &c., of absconding involuntary patients, &c.

[Section 83B of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002]

(1)  [Section 83B Subsection (1) amended by No. 72 of 2005, s. 60, Applied:20 Feb 2006] [Section 83B Subsection (1) substituted by No. 1 of 2007, s. 11, Applied:17 Apr 2007] The Minister may enter into an agreement with the Minister responsible for the administration of a corresponding law providing for either or both of the following:

(a) the apprehension, detention and return of any one or more of the following:

(i) involuntary patients or forensic patients who abscond from the approved hospital or secure mental health unit at which they are being lawfully detained and are found at large in the affected jurisdiction;

(ii) persons who are liable to be detained at a secure mental health unit as forensic patients and are found at large in the affected jurisdiction;

(iii) persons who are in breach of supervision orders and are found at large in the affected jurisdiction;

(b) the apprehension, detention and return of any one or more of the following:

(i) persons, other than prisoners, who abscond from the mental health facility at which they are being detained under the corresponding law and are found at large in this State;

(ii) persons, other than prisoners, who are liable to be detained at a mental health facility under the corresponding law and are found at large in this State;

(iii) persons who are in breach of orders made under the corresponding law for the treatment in the community of mental illness (including any orders of that kind that correspond to supervision orders) and are found at large in this State.

(2)  The Minister must give notice in the Gazette of the making or amendment of an agreement under this section and of the terms of the agreement or amendment.

83C.   Tasmanian officers may act under corresponding laws

[Section 83C of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002]

(1)  An authorised officer may exercise a power or perform a function conferred on the authorised officer under a corresponding law.

(2)  Subsection (1) has effect subject to the provisions of any intergovernmental agreement under this Division about the exercise of the power or the performance of the function by the authorised officer.

83D.   Interstate officers may act in this State

[Section 83D of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002]

(1)  A person who is authorised to exercise a power or perform a function under a corresponding law may exercise the power or perform the function in this State.

(2)  Subsection (1) has effect subject to the provisions of any intergovernmental agreement under this Division about the exercise of the power or the performance of the function by the person referred to in that subsection.

83E.   Apprehension, &c., of involuntary patients, &c., from interstate

[Section 83E of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002] [Section 83E Substituted by No. 1 of 2007, s. 12, Applied:17 Apr 2007]

(1)  This section applies if a person –

(a) absconds from the mental health facility at which he or she is being detained under a corresponding law or contravenes a condition subject to which he or she has been granted leave of absence from that facility and, not being a prisoner of the affected jurisdiction, is found at large in this State; or

(b) is liable to be detained at a mental health facility under a corresponding law and, not being a prisoner of the affected jurisdiction, is found at large in this State; or

(c) is in breach of an order made under a corresponding law for the treatment in the community of mental illness (including any order of that kind that corresponds to a supervision order) and is found at large in this State.

(2)  The person may be apprehended by –

(a) an authorised officer; or

(b) anyone who, under the corresponding law, would be authorised to apprehend the person had the person been found at large in the affected jurisdiction.

(3)  For the purposes of subsection (2) , a warrant or other instrument that, under the corresponding law, would authorise the apprehension of the person if he or she were found at large in the affected jurisdiction also authorises the person's apprehension in this State.

(4)  On being apprehended, the person –

(a) is to be taken to a mental health facility of the affected jurisdiction; but

(b) may be admitted to and detained at an approved hospital or secure mental health unit pending his or her return to that jurisdiction.

(5)  For the purpose of apprehending the person –

(a) an authorised officer may exercise any powers that he or she may exercise under section 15 in relation to persons being taken into protective custody; and

(b) anyone acting under subsection (2)(b) has the same powers as an authorised officer.

83F.   Apprehension, &c., of involuntary patients, &c., found interstate

[Section 83F Amended by No. 72 of 2005, s. 61, Applied:20 Feb 2006] [Section 83F of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002] [Section 83F Amended by No. 72 of 2005, s. 61, Applied:20 Feb 2006] [Section 83F Substituted by No. 1 of 2007, s. 12, Applied:17 Apr 2007]

(1)  This section applies if –

(a) an involuntary patient or forensic patient absconds from the approved hospital or secure mental health unit at which he or she is being detained and is found at large in another State; or

(b) an involuntary patient or forensic patient contravenes a condition subject to which he or she has been granted leave of absence from the approved hospital or secure mental health unit at which he or she is being detained and is found at large in another State; or

(c) a person who is liable to be detained at a secure mental health unit as a forensic patient (in this section referred to as "the unadmitted forensic patient") is found at large in another State.

(2)  The involuntary patient, forensic patient or unadmitted forensic patient may be apprehended and, as the case may be, taken to the approved hospital or secure mental health unit by –

(a) an authorised officer; or

(b) a person who, under the law of the affected jurisdiction, is authorised to take the involuntary patient, forensic patient or unadmitted forensic patient to a mental health facility in that jurisdiction.

83G.   Apprehension, &c., of persons in breach of supervision orders found interstate

[Section 83G Inserted by No. 1 of 2007, s. 12, Applied:17 Apr 2007]

(1)  This section applies if a person in breach of a supervision order is found at large in another State.

(2)  The person may be apprehended and returned to this State and placed back under the supervision of the Chief Forensic Psychiatrist by –

(a) an authorised officer; or

(b) a person who, under the law of the affected jurisdiction, is authorised to apprehend persons in breach of orders of that jurisdiction that correspond to supervision orders.

PART 13 - Miscellaneous

84.   Protection relating to reports and information

(1)  [Section 84 Subsection (1) amended by No. 72 of 2005, s. 62, Applied:20 Feb 2006] A person who makes a report or gives information to the Mental Health Tribunal or Forensic Tribunal or a member of the Mental Health Tribunal or Forensic Tribunal–

(a) for the purpose of a hearing under this Act or to assist in deciding whether an application for a review of a decision or order should be made under this Act; or

(b) [Section 84 Subsection (1) amended by No. 72 of 2005, s. 62, Applied:20 Feb 2006] when requested to do so by the Mental Health Tribunal or Forensic Tribunal or a member of the Mental Health Tribunal or Forensic Tribunal–

is not subject to any liability for making the report or giving the information so long as he or she acts in good faith and has reasonable and probable grounds for believing the report or information to be true.

(2)  A person who makes a report or gives information as mentioned in subsection (1) that is malicious or false in any material particular is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.

85.   Confidentiality of information

(1)  [Section 85 Subsection (1) amended by No. 72 of 2005, s. 63, Applied:20 Feb 2006] A person must not disclose any information obtained by the Mental Health Tribunal or Forensic Tribunal under this Act that deals with the personal history or records of a person with a mental illness except–

(a) at a hearing under this Act; or

(b) [Section 85 Subsection (1) amended by No. 72 of 2005, s. 63, Applied:20 Feb 2006] where in the opinion of the Mental Health Tribunal or Forensic Tribunal it is in the best interests of that person to disclose the information; or

(c) [Section 85 Subsection (1) amended by No. 72 of 2005, s. 63, Applied:20 Feb 2006] where the disclosure of the information is made by a person authorised in writing either generally or in a particular case by the President or a member of the Forensic Tribunal; or

(d) [Section 85 Subsection (1) amended by No. 72 of 2005, s. 63, Applied:20 Feb 2006] where the disclosure of the information is authorised or required by a court or authorised under any law.

(2)  Subsection (1) does not prevent the disclosure of information as required or permitted by any law if, in the case of information relating to the personal affairs of another person, that other person has given consent in writing.

(3)  [Section 85 Subsection (3) amended by No. 72 of 2005, s. 63, Applied:20 Feb 2006] Nothing in this section prohibits the Mental Health Tribunal or Forensic Tribunal from publishing notices of hearings or other notices that may be necessary in the interests of justice or for the proper administration of this Act.

(4)  A person who contravenes this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both.

86.   Protection from liability

[Section 86 Amended by No. 72 of 2005, s. 64, Applied:20 Feb 2006] A member of the Mental Health Tribunal or Forensic Tribunal, the registrar and any other person acting under the direction of the Mental Health Tribunal or Forensic Tribunal do not incur any personal liability in respect of any act done or omitted to be done in good faith in the performance or exercise, or purported performance or exercise, of any function or power of the Mental Health Tribunal or Forensic Tribunal or in the administration or execution, or purported administration or execution, of this Act.

87.   Ill-treatment or neglect of person with mental illness

(1)  A person must not intentionally ill-treat a person knowing that the person –

(a) has a mental illness; and

(b) is, in consequence of the mental illness, unable to take proper care of himself or herself.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  A person in a position of responsibility must not intentionally neglect a person knowing that the person –

(a) has a mental illness; and

(b) is, in consequence of the mental illness, unable to take proper care of himself or herself.

Penalty:  Fine not exceeding 60 penalty units or imprisonment for a term not exceeding 2 years, or both.

88.   Removal, &c., of involuntary patient or forensic patient

A person must not, without lawful authority –

(a) [Section 88 Amended by No. 72 of 2005, s. 65, Applied:20 Feb 2006] remove an involuntary patient from an approved hospital or secure mental health unit; or

(ab) [Section 88 Amended by No. 72 of 2005, s. 65, Applied:20 Feb 2006] remove a forensic patient from a secure mental health unit; or

(b) [Section 88 Amended by No. 72 of 2005, s. 65, Applied:20 Feb 2006] help an involuntary patient or forensic patient to escape from, or evade, detention under this Act.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.

89.   Obstruction

A person must not obstruct –

(a) an authorised officer; or

(b) [Section 89 Amended by No. 72 of 2005, s. 66, Applied:20 Feb 2006] a member or officer of the Mental Health Tribunal or Forensic Tribunal; or

(ba) [Section 89 Amended by No. 72 of 2005, s. 66, Applied:20 Feb 2006] the Chief Forensic Psychiatrist; or

(c) an official visitor; or

(d) another person –

in the exercise of powers or functions under this Act.

Penalty:  Fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year, or both.

90.   Confidentiality

(1)  A person who obtains information of a personal or confidential nature about a person in the exercise of powers or functions under this Act must not disclose the information except as authorised or required under subsection (2) .

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  The information may be disclosed if –

(a) the disclosure is authorised by the person to whom it relates; or

(b) the disclosure is reasonably required for the care or treatment of the person to whom the information relates or for the administration of this Act; or

(c) [Section 90 Subsection (2) amended by No. 72 of 2005, s. 67, Applied:20 Feb 2006] the disclosure is authorised or required by a court, the Board, the Mental Health Tribunal or the Forensic Tribunal; or

(d) [Section 90 Subsection (2) amended by No. 72 of 2005, s. 67, Applied:20 Feb 2006] in the case of information about a forensic patient, the disclosure is authorised or required by a law.

(3)  [Section 90 Subsection (3) inserted by No. 72 of 2005, s. 67, Applied:20 Feb 2006] A person, for profit or for financial or other consideration, must not publish –

(a) the fact that another person is a patient in a secure mental health unit; or

(b) any picture of another person who is a patient in a secure mental health unit that relates to the person's status as a forensic patient –

without the written consent of that other person and the Chief Forensic Psychiatrist.

(4)  [Section 90 Subsection (4) inserted by No. 72 of 2005, s. 67, Applied:20 Feb 2006] Subsection (3) does not prohibit the publication of a report on any court proceedings which is not otherwise prohibited by or under any law.

91.   Non-compliance with legal process

A person who –

(a) [Section 91 Amended by No. 72 of 2005, s. 68, Applied:20 Feb 2006] has been served with a summons to appear before the Mental Health Tribunal or Forensic Tribunal and fails, without reasonable excuse, to attend as required by the summons; or

(b) has been served with a summons to produce books, papers or other documents and fails, without reasonable excuse, to comply with the summons; or

(c) [Section 91 Amended by No. 72 of 2005, s. 68, Applied:20 Feb 2006] misbehaves before the Mental Health Tribunal or Forensic Tribunal or otherwise interrupts the Tribunal's proceedings; or

(ca) [Section 91 Amended by No. 72 of 2005, s. 68, Applied:20 Feb 2006] insults the Mental Health Tribunal or Forensic Tribunal, a member of the Tribunal or a person assisting the Tribunal; or

(d) [Section 91 Amended by No. 72 of 2005, s. 68, Applied:20 Feb 2006] refuses to be sworn or affirmed or to answer a relevant question when required to do so by the Mental Health Tribunal or Forensic Tribunal–

is guilty of an offence and liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a term of one year, or both.

92.   Immunity from liability

An authorised officer or other person does not incur any personal liability in respect of any act done or omitted to be done in good faith in the performance or exercise, or purported performance or exercise, of any function or power conferred by this Act or in the administration or execution, or purported administration or execution, of this Act.

93.   Disqualification of certain medical practitioners

A medical practitioner may not be a signatory to an order in respect of a person under this Act if the medical practitioner –

(a) is a relative of the person; or

(b) [Section 93 Amended by No. 72 of 2005, s. 69, Applied:20 Feb 2006] has a financial interest, otherwise than in receipt of salary or professional fees, in the care or treatment of the person in an approved hospital or a secure mental health unit or under the order.

94.   Errors affecting orders

(1)  The validity of an order under this Act is not affected by an error unless the error relates to the grounds on which the order was made and proper grounds for making the order did not exist.

(2)  An error in an order under this Act that does not affect its validity may be corrected by the person or persons by whom the order was made.

95.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(1A)  [Section 95 Subsection (1A) inserted by No. 72 of 2005, s. 70, Applied:20 Feb 2006] Without limiting the generality of subsection (1) , the regulations may make provision for the purposes of –

(a) the maintenance of good order in a secure mental health unit or other place in which a forensic patient is detained; and

(b) the safety of forensic patients and other persons in a secure mental health unit or other place in which a forensic patient is detained.

(2)  Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.

(3)  The regulations may –

(a) provide that a contravention of any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 5 penalty units and, in the case of a continuing offence, a further fine not exceeding 0·5 penalty units for each day during which the offence continues.

(4)  The regulations may authorise any matter to be from time to time determined, applied or regulated by the Minister, the Secretary or another nominated person.

(5)  [Section 95 Subsection (5) substituted by No. 72 of 2005, s. 70, Applied:20 Feb 2006] The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.

(6)  [Section 95 Subsection (6) amended by No. 72 of 2005, s. 70, Applied:20 Feb 2006] A provision referred to in subsection (5) may take effect on and from a day proclaimed under section 2 or a later day, whether or not that day precedes the day on which the regulations containing that provision are made.

97.   Savings and transitional provisions

The savings and transitional provisions specified in Schedule 2 have effect.

98.   

SCHEDULE 1 - Members and staff of the Mental Health Tribunal

Section 48 (3)

1.   Appointment of members

(1) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] Each member of the Mental Health Tribunal–

(a) is to be appointed by the Governor on the nomination of the Minister; and

(b) is entitled to be paid–

(i) remuneration from time to time fixed by the Minister; and

(ii) travelling and other allowances from time to time fixed by the Minister; and

(c) [Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] is not, in respect of the office of member, subject to the State Service Act 2000 .

(2) The President and the Deputy President each hold office for a term of 5 years and each other member holds office for a term not exceeding 5 years specified in the instrument of his or her appointment.

(3) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] Each member of the Mental Health Tribunal holds office on terms and conditions specified in the instrument of his or her appointment.

(4) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] Each member of the Mental Health Tribunal is eligible for reappointment on the expiration of his or her term of office.

2.   Qualifications of members

[Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] In nominating a person for appointment as a member of the Mental Health Tribunal, the Minister must have regard to–

(a) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] the matters which the Mental Health Tribunal has power to hear and determine; and

(b) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] the need for the members of the Mental Health Tribunal to have appropriate knowledge and experience to decide such matters.

3.   Deputy President

(1) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] The Deputy President may exercise the President's functions and powers as a member of the Mental Health Tribunal or as a member of the Forensic Tribunal if–

(a) the President–

(i) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] delegates those functions and powers to the Deputy President under clause 4 ; or

(ii) is absent from Tasmania; or

(iii) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] is prevented by illness or other incapacity from exercising those functions and powers; or

(b) there is no person holding the office of President.

(2) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] While the Deputy President is authorised to exercise the President's functions and powers, a reference in this Act to the President is taken to be a reference to the Deputy President.

(3) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] While the Deputy President exercises the President's functions and powers, the Deputy President is taken to be the President.

4.   Delegation by President

[Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] The President may delegate to the Deputy President the exercise of any of the President's functions and powers as a member of the Mental Health Tribunal or the Forensic Tribunal, other than this power of delegation.

5.   General provisions about members

(1) The Governor may suspend or remove a member from office if the Governor is satisfied that the member is unable to perform adequately the duties of his or her office.

(2) A member may resign from the office of member by writing signed by the member and delivered to the Governor.

(3) [Schedule 1 Amended by No. 17 of 2005, Sched. 1, Applied:10 Jun 2005] .  .  .  .  .  .  .  .  

(4) If a member –

(a) becomes bankrupt; or

(b) is convicted of an indictable offence or of an offence which, if committed in Tasmania, would be an indictable offence; or

(c) [Schedule 1 Amended by No. 17 of 2005, Sched. 1, Applied:10 Jun 2005] is removed from office or resigns from office –

(d) [Schedule 1 Amended by No. 17 of 2005, Sched. 1, Applied:10 Jun 2005] .  .  .  .  .  .  .  .  

the office of that member becomes vacant.

(5) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] If the appointment of any member expires at a time when the member is engaged in the hearing of any matter by the Mental Health Tribunal, the term of appointment of the member is taken to continue until the matter has been finally determined by the Mental Health Tribunal.

6.   Term of office of acting members

[Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] Where–

(a) an eligible person, within the meaning of section 21A of the Acts Interpretation Act 1931 , has been appointed to act as a member; and

(b) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] the appointment to act as such expires, whether by effluxion of time or because the member for whom that person is acting has resumed the performance of the duties of his or her office, at a time when the acting member is engaged in the hearing of any matter by the Mental Health Tribunal–

the period of appointment of that person is taken to continue until that matter has been finally determined by the Mental Health Tribunal.

7.   Staff of the Mental Health Tribunal

(1) [Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] There is to be a registrar of the Mental Health Tribunal and such other officers as are necessary for the proper functioning of the Mental Health Tribunal.

(2) [Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The registrar and other officers are to be appointed or employed subject to and in accordance with the State Service Act 2000 .

(3) The registrar and other officers are subject to the general control and direction of the President.

8.   Appointment of persons to assist the Mental Health Tribunal

[Schedule 1 Amended by No. 72 of 2005, s. 72, Applied:20 Feb 2006] The Mental Health Tribunal may appoint a legal practitioner, a medical practitioner or other person with appropriate expertise to assist the Mental Health Tribunal in proceedings before it.

SCHEDULE 1A - Membership of Forensic Tribunal

Section 73U(4)

1.   Interpretation

In this Schedule –[Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008]

[Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] chairperson means chairperson of the tribunal;

meeting includes, where appropriate, proceeding and hearing;

[Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] member means member of the tribunal;

[Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] President means President of the Board or Mental Health Tribunal;

[Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] tribunal means the Forensic Tribunal.

2.   Holding other office

The holder of an office who is required by the terms of his or her employment to devote the whole of his or her time to the duties of that office is not disqualified from –

(a) holding that office and also the office of a member; or

(b) accepting any remuneration payable to a member.

3.    State Service Act 2000

(1) The State Service Act 2000 does not apply in relation to a member in his or her capacity as a member.

(2) A person may hold the office of member in conjunction with State Service employment.

4.   Extension of term of office

[Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008]

(1) If a person who is a President is a member of the tribunal and the person's term as such President expires after the tribunal has commenced (but before it has finalised) hearing any matter –

(a) the person is taken for the purposes of that matter to continue in office as such President until that matter is finalised by the tribunal; and

(b) another person appointed as such President is taken, for those purposes and until that matter is finalised, not to be such President.

(2) If the term for which an ordinary member is appointed expires after the tribunal has commenced (but before it has finalised) hearing any matter, that term is extended until the matter is finalised.

5.   Remuneration and conditions of appointment

(1) A member is entitled to be paid such remuneration and allowances as the Minister determines.

(2) A member who is a State Service employee or State Service officer is not entitled to remuneration or allowances under this clause except with the approval of the Minister administering the State Service Act 2000 .

(3) [Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] An ordinary member holds office on such conditions in relation to matters not provided for by this Act as are specified in the member's instrument of appointment or as determined by the Minister.

6.   [Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] .  .  .  .  .  .  .  .  

7.   Vacation of office

(1) [Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] An ordinary member vacates office if –

(a) he or she dies; or

(b) he or she resigns by written notice given to the Minister; or

(c) he or she is suspended or removed from office under subclause (2) ; or

(d) his or her appointment as member is terminated under subclause (3) .

(2) [Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] The Minister may suspend or remove an ordinary member from office if satisfied that the member is unable to perform adequately or competently the duties of the office through illness or for any other reason.

(3) [Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] The appointment of an ordinary member is terminated if the member –

(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(b) is convicted in Tasmania of an indictable offence or is convicted elsewhere of an offence which if committed in Tasmania would be an indictable offence.

8.   Filling of vacancies

[Schedule 1A Amended by No. 65 of 2007, s. 27, Applied:01 Jan 2008] If the office of an ordinary member becomes vacant, the Minister may appoint a person from the Forensic Tribunal Member Register to the vacant office for the remainder of that member's term, until the matter in respect of which that member was appointed is finalised or while the office is vacant.

SCHEDULE 2 - Transitional and savings provisions

Section 97

1.   In this Schedule –

commencement date means the date of commencement of this Schedule;

institution means an institution within the meaning of the repealed Act;

repealed Act means the Mental Health Act 1963 .

2.   A reference in this Schedule to a person liable to be detained in an institution includes a reference to a person who is –

(a) absent from that institution and liable to be retaken and returned to that institution; or

(b) absent from that institution on leave.

3.   A reference in this Schedule to a person absent on leave includes a reference to a person authorised or required under the repealed Act to be away from an institution, and, in the case of an involuntary patient who, before the commencement date, was away from the institution in which he or she was liable to be detained, the expression absent without leave is to be read accordingly.

4.   A person whose appointment as an authorised officer was in force under section 11 of the repealed Act immediately before the commencement date is taken to have been appointed as such under section 13 of this Act for a period of 6 months after that date.

5.   Where, immediately before the commencement date, an institution was declared under section 6 of the repealed Act to be a hospital for the purposes of that Act, the institution is taken to be an approved hospital under section 9 of this Act.

6.   Where, immediately before the commencement date, a person was subject to an admission application under section 14 of the repealed Act or an emergency application under section 19 (1) of that Act , the application is taken to be an initial order made under section 26 (1) of this Act on that date.

7.   Where, immediately before the commencement date, a person was in legal custody by virtue of a warrant issued under the repealed Act , that person may continue to be detained as if an initial order had been made in respect of him or her on the commencement date.

8.   Where, immediately before the commencement date, a person was liable to be apprehended under a warrant in force under the repealed Act , the warrant continues to have effect for a period of a week after the commencement date.

9.   

(1) Where, immediately before the commencement date, a person was, or was liable to be, detained in an institution, that person may continue to be detained in an approved hospital as if a continuing care order had been made in respect of him or her on the commencement date.

(2) The period for which a person may be detained under subclause (1) is the period for which he or she may have been detained under the repealed Act as if it had continued in operation.

10.   The senior approved medical practitioner of an approved hospital must, within 28 days after the commencement date, provide the registrar with full particulars in writing of any order under which a person is at that time detained under the repealed Act as an involuntary patient in the approved hospital.

[Second reading presentation speech made in:

House of Assembly on 2 OCTOBER 1996

Legislative Council on 5 SEPTEMBER 1996]