Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
About this republication
The republished law
This is a republication of the Mental Health Act 2015 (including any amendment made under the
Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 27 March 2024. It also includes
any commencement, amendment, repeal or expiry affecting this republished law to
27 March 2024.
The legislation history and amendment history of the republished law are set out in endnotes 3
and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT
legislation register at www.legislation.act.gov.au):
• authorised republications to which the Legislation Act 2001 applies
• unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial
amendments and other changes of a formal nature when preparing a law for republication.
Editorial changes do not change the effect of the law, but have effect as if they had been made by
an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The
changes are made if the Parliamentary Counsel considers they are desirable to bring the law into
line, or more closely into line, with current legislative drafting practice.
This republication includes amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately
before the provision heading. Any uncommenced amendments that affect this republished law
are accessible on the ACT legislation register (www.legislation.act.gov.au). For more
information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the
symbol M appears immediately before the provision heading. The text of the modifying
provision appears in the endnotes. For the legal status of modifications, see the Legislation
Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an
individual and $810 for a corporation (see Legislation Act 2001, s 133).
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Mental Health Act 2015
Contents
Page
Chapter 1 Preliminary
1 Name of Act 2
2 Dictionary 2
3 Notes 2
4 Offences against Act—application of Criminal Code etc 3
Chapter 2 Objects and important concepts
5 Objects of Act 4
6 Principles applying to Act 5
7 Meaning of decision-making capacity 8
8 Principles of decision-making capacity 8
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9 Meaning of mental disorder 9
10 Meaning of mental illness 10
11 People not to be regarded as having mental disorder or mental illness 10
12 Meaning of carer 11
13 Proceedings relating to children 12
Chapter 3 Rights of people with mental disorder or
mental illness
Part 3.1 Rights in relation to information and
communication
14 Meaning of responsible person—pt 3.1 13
15 Information to be given to people 13
16 Information to be available at facilities 15
17 Communication 16
18 Failure by owner of facility to comply with pt 3.1 16
Part 3.2 Nominated people
19 Nominated person 17
20 Nominated person—functions 17
21 Nominated person—obligations of person in charge of facility 18
22 Nominated person—end of nomination 18
23 Nominated person—protection from liability 20
Part 3.3 Advance agreements and advance consent
directions
24 Definitions—pt 3.3 21
25 Rights in relation to advance agreements and advance consent
directions 21
26 Entering into advance agreement 22
27 Making advance consent direction 24
28 Giving treatment etc under advance agreement or advance consent
direction 27
29 Ending advance agreement or advance consent direction 28
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30 Effect of advance agreement and advance consent direction on
guardian with authority to give consent for treatment, care or support 30
31 Effect of advance agreement and advance consent direction on
attorney with power to deal with health care matters 31
32 Effect of health direction on previous advance consent direction 31
Chapter 4 Assessments
Part 4.1 Applications for assessment orders
33 Applications by people with mental disorder or mental illness—
assessment order 32
34 Applications by other people—assessment order 33
35 Applications by referring officers—assessment order 33
36 Applicant and referring officer to tell ACAT of risks—assessment order 35
Part 4.2 Assessment orders
37 Assessment order 36
38 Consent for assessment order 37
39 Emergency assessment order 37
40 Content and effect of assessment order 38
41 Public advocate to be told about assessment order 39
42 Time for conducting assessment 39
43 Removal order to conduct assessment 40
44 Executing removal order 41
45 Contact with others 42
46 Public advocate and lawyer to have access 42
47 Person to be assessed to be told about order 42
48 Copy of assessment 43
49 Notice of outcome of assessment 44
Chapter 5 Mental health orders
Part 5.1 Preliminary
50 Definitions—ch 5 45
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Part 5.2 Applications for mental health orders
51 Applications for mental health orders 46
52 Applicant to tell ACAT of risks 47
Part 5.3 Making of mental health orders—preliminary
matters
53 ACAT must consider assessment—mental health order 48
54 Consultation by ACAT—mental health order 48
55 ACAT must hold hearing—mental health order 50
56 What ACAT must take into account—mental health order 50
57 ACAT must not order particular treatment, care or support—mental
health order 52
Part 5.4 Psychiatric treatment orders
58 Psychiatric treatment order 53
59 Content of psychiatric treatment order 54
60 Criteria for making restriction order with psychiatric treatment order 55
61 Content of restriction order made with psychiatric treatment order 56
62 Role of chief psychiatrist—psychiatric treatment order 56
63 Treatment etc to be explained—psychiatric treatment order 59
64 Action if psychiatric treatment order no longer appropriate—no longer
person in relation to whom ACAT could make order 59
65 Powers in relation to psychiatric treatment order 61
Part 5.5 Community care orders
66 Community care order 64
67 Content of community care order 65
68 Criteria for making restriction order with community care order 66
69 Content of restriction order made with community care order etc 66
70 Role of care coordinator—community care order 67
71 Treatment etc to be explained—community care order 69
72 Action if community care order no longer appropriate—no longer
person in relation to whom ACAT could make order 70
73 Powers in relation to community care order 72
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Part 5.6 Limits on communication under mental health
orders
74 Limits on communication—mental health order 74
75 Offence—limits on communication—mental health order 75
Part 5.7 Duration, contravention and review of mental
health orders
76 Duration of mental health orders 76
77 Contravention of mental health order 76
78 Contravention of mental health order—absconding from facility 78
79 Review of mental health order 79
Chapter 6 Emergency detention
80 Apprehension 82
81 Detention at approved mental health facility 84
82 Copy of court order 85
83 Statement of action taken 85
84 Initial examination at approved mental health facility 86
85 Authorisation of involuntary detention 88
86 Medical examination of detained person 89
87 Notification of Magistrates Court about emergency detention or
release from emergency detention 90
88 Treatment during detention 91
89 Notification of certain people about detention 92
90 Offence—communication during detention 94
91 Order for release 95
92 Duty to release 96
Chapter 7 Forensic mental health
Part 7.1 Forensic mental health orders
Division 7.1.1 Preliminary
93 Definitions—pt 7.1 97
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Division 7.1.2 Application for forensic mental health orders
94 Applications for forensic mental health orders—detainees etc 97
95 Relevant person to tell ACAT of risks 98
Division 7.1.3 Making forensic mental health orders—preliminary
matters
96 ACAT must consider assessment—forensic mental health order 99
97 Consultation by ACAT—forensic mental health order 99
98 ACAT must hold hearing—forensic mental health order 100
99 What ACAT must take into account—forensic mental health order 100
100 ACAT must not order particular treatment, care or support—forensic
mental health order 102
Division 7.1.4 Forensic psychiatric treatment orders
101 Forensic psychiatric treatment order 103
102 Content of forensic psychiatric treatment order 104
103 Role of chief psychiatrist—forensic psychiatric treatment order 105
104 Treatment etc to be explained—forensic psychiatric treatment order 108
105 Action if forensic psychiatric treatment order no longer appropriate—
no longer person in relation to whom ACAT could make order 108
106 Action if forensic psychiatric treatment order no longer appropriate—
no longer necessary to detain person 110
107 Powers in relation to forensic psychiatric treatment order 112
Division 7.1.5 Forensic community care orders
108 Forensic community care order 114
109 Content of forensic community care order 116
110 Role of care coordinator—forensic community care order 117
111 Treatment etc to be explained—forensic community care order 119
112 Action if forensic community care order no longer appropriate—no
longer person in relation to whom ACAT could make order 119
113 Action if forensic community care order no longer appropriate—no
longer necessary to detain person 121
114 Powers in relation to forensic community care order 123
Division 7.1.6 Limits on communication under forensic mental health
orders
115 Limits on communication—forensic mental health order 125
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116 Offence—limits on communication—forensic mental health order 127
Division 7.1.7 Duration of forensic mental health orders
117 Duration of forensic mental health orders 127
Division 7.1.8 Leave for detained people
118 Meaning of corrections order—div 7.1.8 128
119 Grant of leave for person detained by ACAT 129
120 Revocation of leave granted by ACAT 131
121 Grant of leave for person detained by relevant official 134
122 Leave in emergency or special circumstances 136
123 Revocation of leave granted by relevant official 138
Division 7.1.9 Contravention and review of forensic mental health
orders
124 Contravention of forensic mental health order 140
125 Contravention of forensic mental health order—absconding from
facility 142
126 Review of forensic mental health order 143
Part 7.2 Affected people
127 Definitions—pt 7.2 146
128 Meaning of affected person 146
129 Meaning of registered affected person 148
130 Affected person register 148
131 Notifying people about the affected person register 148
132 Including person in affected person register 149
133 Removing person from affected person register 150
134 Disclosures to registered affected people 151
Chapter 8 Correctional patients
Part 8.1 Preliminary
135 Meaning of correctional patient 154
Part 8.2 Transfer of correctional patients
136 Transfer to mental health facility 155
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137 Return to correctional centre or detention place unless direction to
remain 156
138 Release etc on change of status of correctional patient 157
139 ACAT may return people to correctional centre or detention place 158
Part 8.3 Review of correctional patients
140 Review of correctional patient awaiting transfer to mental health facility 159
141 Review of correctional patient transferred to mental health facility 159
142 Review of correctional patient detained at mental health facility 160
Part 8.4 Leave for correctional patients
142A Definitions—pt 8.4 162
143 Grant of leave for correctional patients 162
144 Revocation of leave for correctional patients 164
Chapter 8A Transfer of custody—secure mental health
facility
144A Transfer of custody if person admitted to secure mental health facility 166
144B Taking person to appear before court 168
144C Release etc on change of status of person 169
144D Power to apprehend if person escapes from secure mental health
facility 170
144E Transfers to health facilities 172
144F Escort officers 173
144G Crimes Act escape provisions 174
Chapter 9 Electroconvulsive therapy and psychiatric
surgery
Part 9.1 Preliminary—ch 9
145 Definitions 175
146 Form of consent 175
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Part 9.2 Electroconvulsive therapy
Division 9.2.1 Administration of electroconvulsive therapy
147 When electroconvulsive therapy may be administered 177
148 Adult with decision-making capacity 177
149 Adult without decision-making capacity 178
150 Young person with decision-making capacity 179
151 Young person without decision-making capacity 179
152 Offence—unauthorised administration of electroconvulsive therapy 180
Division 9.2.2 Electroconvulsive therapy orders
153 Application for electroconvulsive therapy order 181
154 Consultation by ACAT—electroconvulsive therapy order 181
155 ACAT must hold hearing—electroconvulsive therapy order 182
156 What ACAT must take into account—electroconvulsive therapy order 182
157 Making of electroconvulsive therapy order 183
158 Content of electroconvulsive therapy order 184
159 Person to be told about electroconvulsive therapy order 185
Division 9.2.3 Emergency electroconvulsive therapy orders
160 Application for emergency electroconvulsive therapy order 185
161 What ACAT must take into account—emergency electroconvulsive
therapy order 186
162 Making of emergency electroconvulsive therapy order 187
163 Content of an emergency electroconvulsive therapy order 189
164 Effect of later order 189
Division 9.2.4 Records of electroconvulsive therapy
165 Doctor must record electroconvulsive therapy 189
166 Electroconvulsive therapy records to be kept for 5 years 190
Part 9.3 Psychiatric surgery
167 Performance on people subject to orders of ACAT 191
168 Psychiatric surgery not to be performed without approval or if person
refuses 191
169 Application for approval 191
170 Application to be considered by committee 192
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171 Requirement for further information 194
172 Application to be decided in accordance with committee’s
recommendation 194
173 Consent of Supreme Court 194
174 Refusal of psychiatric surgery 195
175 Appointment of committee 197
Chapter 10 Referrals by courts under Crimes Act and
Children and Young People Act
176 Review of certain people found unfit to plead 198
177 Recommendations about people with mental impairment 200
178 Recommendations about people with mental disorder or mental illness 201
179 Service of decisions etc 201
180 Review of detention under court order 202
181 Contravention of conditions of release 204
182 Review of conditions of release 205
183 Limit on detention 206
Chapter 11 ACAT procedural matters
184 Meaning of subject person—ch 11 207
185 When ACAT may be constituted by presidential member 207
186 When ACAT must be constituted by more members 208
187 Applications 209
188 Notice of hearing 209
189 Directions to registrar 212
190 Appearance 213
191 Separate representation of children etc 215
192 Subpoena to appear in person 215
193 Person subpoenaed in custody 216
194 Hearings to be in private 216
195 Who is given a copy of the order? 216
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Chapter 12 Administration
Part 12.1 Chief psychiatrist and mental health officers
196 Chief psychiatrist 219
197 Functions 219
198 Approved code of practice 220
198A Chief psychiatrist may make guidelines 220
199 Ending appointment—chief psychiatrist 221
200 Delegation by chief psychiatrist 222
201 Mental health officers 222
202 Functions of mental health officers 223
203 Identity cards for mental health officers 223
Part 12.2 Care coordinator
204 Care coordinator 224
205 Functions 224
206 Ending appointment—care coordinator 225
207 Delegation by care coordinator 225
Part 12.3 Official visitors
208 Meaning of official visitor etc 227
209 Appointment of official visitors—additional suitability requirement 228
211 Official visitor’s functions 228
213 Notice to official visitor of detainee receiving mental health treatment,
care or support in correctional centre 229
214 Complaint about treatment, care or support provided at place other
than visitable place 230
Part 12.4 Coordinating director-general
215 Coordinating director-general 232
216 Functions of coordinating director-general 232
217 Coordinating director-general policies and operating procedures 232
Part 12.5 Sharing information—government agencies
218 Definitions—pt 12.5 234
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219 Information sharing protocol 235
220 Information sharing guidelines 236
221 Information sharing—approval of agency 236
Chapter 13 Private psychiatric facilities
Part 13.1 Preliminary
222 Definitions—ch 13 237
Part 13.2 Licences
223 Meaning of eligible person—pt 13.2 238
224 Licence—requirement to hold 239
225 Licence—application 239
226 Licence—decision on application 240
227 Licence—term and renewal of licence 241
228 Licence—transfer of licence 242
229 Licence—amendment initiated by Minister 243
230 Licence—amendment on application by licensee 243
231 Licence—surrender 244
232 Licence—cancellation by notice 244
233 Licence—emergency cancellation 245
Part 13.3 Private psychiatric facilities—enforcement
234 Appointment of inspectors 246
235 Identity cards 246
236 Powers of inspection 247
237 Failing to comply with requirement of inspector 248
Chapter 14 Mental health advisory council
238 Establishment of mental health advisory council 249
239 Functions of mental health advisory council 249
240 Membership of mental health advisory council 249
241 Procedures of mental health advisory council 250
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Chapter 15 Interstate application of mental health laws
Part 15.1 Preliminary
242 Purpose—ch 15 251
243 Definitions—ch 15 251
244 Authority to enter into agreements 253
245 Authorised officer and interstate authorised person may exercise
certain functions 253
246 Medication for person being transferred 253
Part 15.2 Apprehension of people in breach of certain
orders
247 Apprehension of interstate patient in breach of interstate involuntary
treatment order 254
248 Apprehension of person in breach of mental health order or forensic
mental health order 255
Part 15.3 Transfer of certain people from ACT
249 Interstate transfer—person under psychiatric treatment order or
community care order 257
250 Interstate transfer—person under forensic psychiatric treatment order
or forensic community care order 260
251 Transfer to interstate mental health facility—emergency detention 263
252 Interstate transfer—when ACT order stops applying 265
Part 15.4 Transfer of certain people to ACT
253 Transfer of interstate patient to approved mental health facility 266
254 Transfer of responsibility to provide treatment, care or support in the
community for interstate patient 266
255 Transfer of person apprehended in another State to approved mental
health facility 267
Part 15.5 Interstate operation of certain orders
256 Mental health order relating to interstate person 268
257 Implementing interstate involuntary treatment order for temporary ACT
resident 268
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Chapter 16 Notification and review of decisions
258 Meaning of reviewable decision—ch 16 270
259 Reviewable decision notices 270
260 Applications for review 270
Chapter 17 Miscellaneous
261 Approval of mental health facilities 271
262 Approval of community care facilities 271
263 Powers of entry and apprehension 271
264 Powers of search and seizure 273
265 Protection of officials from liability 276
266 Report and record of use of restraint etc 277
267 Appeals from ACAT to Supreme Court 278
268 Relationship with Guardianship and Management of Property Act 278
269 Relationship with Powers of Attorney Act 279
270 Certain rights unaffected 280
271A Reviews by Minister and director-general 280
272 Determination of fees 281
274 Regulation-making power 281
Chapter 20 Transitional—Mental Health Amendment Act
2023
300 Meaning of commencement day—ch 20 282
301 Contravention of mental health order before commencement day 282
302 Contravention of forensic mental health order before commencement
day 282
303 ACAT order not made before commencement day 283
304 Expiry—ch 20 283
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Schedule 1 Reviewable decisions 284
Dictionary 285
Endnotes
1 About the endnotes 294
2 Abbreviation key 294
3 Legislation history 295
4 Amendment history 298
5 Earlier republications 347
6 Expired transitional or validating provisions 349
7 Renumbered provisions 349
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Australian Capital Territory
Mental Health Act 2015
An Act to provide for the treatment, care or support, rehabilitation and protection
of people with a mental disorder or mental illness and the promotion of mental
health and wellbeing, and for other purposes
Chapter 1
Preliminary
Section 1
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Chapter 1 Preliminary
1 Name of Act
This Act is the Mental Health Act 2015.
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms used in this
Act, and includes references (signpost definitions) to other terms defined
elsewhere.
For example, the signpost definition ‘care and protection order—see the
Children and Young People Act 2008, section 422.’ means that the term
‘care and protection order’ is defined in that section and the definition
applies to this Act.
Note 2 A definition in the dictionary (including a signpost definition) applies to
the entire Act unless the definition, or another provision of the Act,
provides otherwise or the contrary intention otherwise appears (see
Legislation Act, s 155 and s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Preliminary
Chapter 1
Section 4
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4 Offences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see
Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used
for offences to which the Code applies (eg conduct, intention,
recklessness and strict liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties
that are expressed in penalty units.
Chapter 2
Objects and important concepts
Section 5
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Chapter 2 Objects and important
concepts
5 Objects of Act
The objects of this Act are to—
(a) promote the recovery of people with a mental disorder or mental
illness; and
(b) promote the capacity of people with a mental disorder or mental
illness to determine, and participate in, their assessment and
treatment, care or support, taking into account their rights in
relation to mental health under territory law; and
(c) ensure that people with a mental disorder or mental illness
receive assessment and treatment, care or support in a way that
is least restrictive or intrusive to them; and
(d) facilitate access by people with a mental disorder or mental
illness to services provided in a way that recognises and respects
their rights, inherent dignity and needs; and
(e) promote the inclusion of, and participation by, people with a
mental disorder or mental illness in communities of their choice;
and
(f) facilitate access by people with a mental disorder or mental
illness to assessment and treatment, care or support as far as
practicable in communities of their choice; and
(g) support improvements in mental health through mental health
promotion, illness prevention and early intervention.
Objects and important concepts
Chapter 2
Section 6
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6 Principles applying to Act
In exercising a function under this Act, the following principles must
be taken into account:
(a) a person with a mental disorder or mental illness has the same
rights and responsibilities as other members of the community
and is to be supported to exercise those rights and
responsibilities without discrimination;
(b) a person with a mental disorder or mental illness has the right
to—
(i) consent to, refuse or stop treatment, care or support; and
(ii) be told about the consequences of consenting to, refusing
or stopping treatment, care or support;
(c) a person with a mental disorder or mental illness has the right to
determine the person’s own recovery;
(d) a person with a mental disorder or mental illness has the right to
have the person’s will and preferences, to the extent that they
are known or able to be known, taken into account in decisions
made about treatment, care or support;
(e) a person with a mental disorder or mental illness has the right to
access the best available treatment, care or support relating to
the person’s individual needs;
(f) a person with a mental disorder or mental illness has the right to
be able to access services that—
(i) are sensitive and responsive to the person’s individual
needs, including in relation to age, gender, culture,
language, religion, sexuality, trauma and other life
experiences; and
(ii) observe, respect and promote the person’s rights, liberty,
dignity, autonomy and self-respect;
Chapter 2
Objects and important concepts
Section 6
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(g) a person with a mental disorder or mental illness has the right to
be given timely information, in a way that the person is most
likely to understand, to allow the person to make decisions or
maximise the person’s contribution to decision-making about
the person’s assessment and treatment, care or support;
(h) a person with a mental disorder or mental illness has the right to
communicate, and be supported in communicating, in a way
appropriate to the person;
Examples
1 aided augmentative and alternative communication including
teletypewriter services, communication boards and communication
books
2 unaided augmentative and alternative communication including sign
language and facial expression
3 use of an interpreter or translation service
4 use of an independent advocacy service
(i) a person with a mental disorder or mental illness has the right to
be assumed to have decision-making capacity, unless it is
established that the person does not have decision-making
capacity;
Note For principles of decision-making capacity, see s 8.
(j) services provided to a person with a mental disorder or mental
illness should—
(i) respect the informed consent of the person to the person’s
assessment and treatment, care or support including
consent as expressed in an advance consent direction; and
(ii) support and allow the person to make the person’s own
decisions; and
(iii) be provided in a way that considers and respects the
preferences of the person, including those expressed in an
advance agreement; and
Objects and important concepts
Chapter 2
Section 6
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(iv) promote a person’s capacity to determine the person’s
recovery from mental disorder or mental illness; and
(v) seek to bring about the best therapeutic outcomes for the
person and promote the person’s recovery; and
(vi) be therapeutic or diagnostic in nature for the benefit of the
person, and never administered as punishment or for the
benefit of someone other than the person; and
(vii) be delivered in a way that takes account of, and continues
to build on, evidence of effective assessment and
treatment, care or support; and
(viii) be provided in a way that ensures that the person is aware
of the person’s rights; and
(ix) facilitate appropriate involvement of close relatives, close
friends and carers in treatment, care or support decisions in
partnership with medical professionals; and
(x) acknowledge the impact of mental disorder and mental
illness on the close relatives, close friends and carers of
people with a mental disorder or mental illness; and
(xi) recognise the experience and knowledge of close relatives,
close friends and carers about a person’s mental disorder
or mental illness; and
(xii) promote inclusive practices in treatment, care or support to
engage families and carers in responding to a person’s
mental disorder or mental illness; and
(xiii) promote a high standard of skill and training for the people
providing treatment, care or support.
Chapter 2
Objects and important concepts
Section 7
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7 Meaning of decision-making capacity
For this Act, a person has capacity to make a decision in relation to
the person’s treatment, care or support for a mental disorder or mental
illness (decision-making capacity) if the person can, with assistance
if needed—
(a) understand when a decision about treatment, care or support for
the person needs to be made; and
(b) understand the facts that relate to the decision; and
(c) understand the main choices available to the person in relation
to the decision; and
(d) weigh up the consequences of the main choices; and
(e) understand how the consequences affect the person; and
(f) on the basis of paragraphs (a) to (e), make the decision; and
(g) communicate the decision in whatever way the person can.
8 Principles of decision-making capacity
(1) In considering a person’s decision-making capacity under this Act,
the following principles must be taken into account:
(a) a person’s decision-making capacity is particular to the decision
that the person is to make;
(b) a person must be assumed to have decision-making capacity,
unless it is established that the person does not have
decision-making capacity;
(c) a person who does not have decision-making capacity must
always be supported to make decisions about the person’s
treatment, care or support to the best of the person’s ability;
(d) a person must not be treated as not having decision-making
capacity unless all practicable steps to assist the person to make
decisions have been taken;
Objects and important concepts
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(e) a person must not be treated as not having decision-making
capacity only because—
(i) the person makes an unwise decision; or
(ii) the person has impaired decision-making capacity under
another Act, or in relation to another decision;
(f) a person must not be treated as having decision-making capacity
to consent to the provision of treatment, care or support only
because the person complies with the provision of the treatment,
care or support;
(g) a person who moves between having and not having
decision-making capacity must, if reasonably practicable, be
given the opportunity to consider matters requiring a decision at
a time when the person has decision-making capacity.
(2) A person’s decision-making capacity must always be taken into
account in deciding treatment, care or support, unless this Act
expressly provides otherwise.
(3) An act done, or decision made, under this Act for a person who does
not have decision-making capacity must be done in the person’s best
interests.
(4) In considering a person’s decision-making capacity under this Act,
any approved code of practice under section 198 must be taken into
account.
9 Meaning of mental disorder
In this Act:
mental disorder—
(a) means a disturbance or defect, to a substantially disabling
degree, of perceptual interpretation, comprehension, reasoning,
learning, judgment, memory, motivation or emotion; but
(b) does not include a condition that is a mental illness.
Chapter 2
Objects and important concepts
Section 10
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10 Meaning of mental illness
In this Act:
mental illness means a condition that seriously impairs (either
temporarily or permanently) the mental functioning of a person in
1 or more areas of thought, mood, volition, perception, orientation or
memory, and is characterised by—
(a) the presence of at least 1 of the following symptoms:
(i) delusions;
(ii) hallucinations;
(iii) serious disorders of streams of thought;
(iv) serious disorders of thought form;
(v) serious disturbance of mood; or
(b) sustained or repeated irrational behaviour that may be taken to
indicate the presence of at least 1 of the symptoms mentioned in
paragraph (a).
11 People not to be regarded as having mental disorder or
mental illness
For this Act, a person is not to be regarded as having a mental disorder
or mental illness only because of any of the following:
(a) the person expresses or refuses or fails to express, or has
expressed or has refused or failed to express, a particular
political opinion or belief;
(b) the person expresses or refuses or fails to express, or has
expressed or has refused or failed to express, a particular
religious opinion or belief;
(c) the person expresses or refuses or fails to express, or has
expressed or has refused or failed to express, a particular
philosophy;
Objects and important concepts
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(d) the person expresses or refuses or fails to express, or has
expressed or has refused or failed to express, a particular sexual
preference or sexual orientation;
(e) the person engages in or refuses or fails to engage in, or has
engaged in or has refused or failed to engage in, a particular
political activity;
(f) the person engages in or refuses or fails to engage in, or has
engaged in or has refused or failed to engage in, a particular
religious activity;
(g) the person engages in or has engaged in sexual promiscuity;
(h) the person engages in or has engaged in immoral conduct;
(i) the person engages in or has engaged in illegal conduct;
(j) the person takes or has taken alcohol or any other drug;
(k) the person engages in or has engaged in antisocial behaviour.
12 Meaning of carer
(1) For this Act, a person is a carer if the person provides personal care,
support or assistance to a person who has a mental disorder or mental
illness.
(2) However, a person is not a carer for another person—
(a) in relation to care, support or assistance that is provided—
(i) under a commercial arrangement, or an arrangement that is
substantially commercial; or
(ii) in the course of doing voluntary work for a charitable,
welfare or community organisation; or
(iii) as part of a course of education or training; or
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Objects and important concepts
Section 13
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(b) just because the person is the domestic partner, parent, child or
other relative, or guardian of the other person; or
(c) just because the person lives with the other person.
13 Proceedings relating to children
A person who is the subject of a proceeding is a child for the
proceeding if the person was a child when the proceeding began.
Rights of people with mental disorder or mental illness
Chapter 3
Rights in relation to information and communication
Part 3.1
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Chapter 3 Rights of people with mental
disorder or mental illness
Part 3.1 Rights in relation to information
and communication
14 Meaning of responsible person—pt 3.1
In this part:
responsible person means—
(a) for a mental health facility that is not conducted by the
Territory—the owner of the facility; or
(b) for a psychiatric facility conducted by the Territory—the chief
psychiatrist; or
(c) for any other mental health facility or community care facility
conducted by the Territory—the director-general of the
administrative unit responsible for the conduct of the facility.
15 Information to be given to people
(1) The responsible person for a mental health facility or community care
facility must ensure that, as soon as practicable after it is decided to
give treatment, care or support to a person at the facility, the person—
(a) is orally advised of their rights under this Act; and
(b) is given a written information statement including—
(i) a statement of the right to obtain a second opinion from an
appropriate mental health professional; and
(ii) a statement of the right to obtain legal advice; and
Chapter 3
Rights of people with mental disorder or mental illness
Part 3.1
Rights in relation to information and communication
Section 15
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(iii) a statement that, if the person has decision-making
capacity, the person has the right to—
(A) nominate someone else to be the person’s nominated
person; and
(B) enter into an advance agreement; and
(C) make an advance consent direction; and
(iv) information about the role of a nominated person under this
Act; and
(v) the location of the information required to be available at
the facility under section 16; and
(vi) anything else prescribed by regulation.
(2) A mental health professional giving treatment, care or support in the
community to a person with a mental disorder or mental illness must
ensure that the advice and information mentioned in
subsection (1) (a) and (b) is given to the person as soon as practicable
after it is decided to give the person treatment, care or support in the
community.
(3) The responsible person or mental health professional must ensure that
the advice and information—
(a) is provided in a way that the person is most likely to understand;
and
(b) if the person appears to be unable to understand the advice or
information, the public advocate is told of that fact.
(4) The responsible person or mental health professional must also take
reasonable steps to give a copy of the information to—
(a) if the person has a nominated person—the nominated person;
and
(b) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian; and
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Chapter 3
Rights in relation to information and communication
Part 3.1
Section 16
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(c) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney; and
(d) if a health attorney is involved in the treatment, care or support
of the person—the health attorney; and
(e) if the person is a child—each person with parental responsibility
for the child under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility); and
(f) if the person has a legal representative—the legal representative;
and
(g) if the person has a carer—the carer.
16 Information to be available at facilities
(1) The responsible person for a mental health facility or community care
facility must ensure that current copies of the following information
are available at the facility in a place readily accessible to people
admitted to or receiving treatment, care or support at the facility:
(a) this Act, the Guardianship and Management of Property
Act 1991 and any other relevant legislation;
(b) any publications prepared by the administrative unit responsible
for that legislation for the purpose of explaining the legislation;
(c) information statements printed in different languages;
(d) a list of the names, addresses, telephone numbers and relevant
functions of the entities prescribed by regulation.
(2) The responsible person must also ensure that a notice indicating
where the information is available is displayed in a prominent
position at the facility.
Chapter 3
Rights of people with mental disorder or mental illness
Part 3.1
Rights in relation to information and communication
Section 17
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17 Communication
(1) The responsible person for a mental health facility or community care
facility must ensure that a person admitted to or receiving treatment,
care or support at the facility—
(a) is given reasonable opportunities and facilities to communicate
with people of the person’s choice by means other than written
communication; and
(b) is given, on request, reasonable opportunities and facilities for
preparing written communications and for enclosing the
communications in sealed envelopes.
(2) The responsible person for a mental health facility or community care
facility must ensure that any written communication addressed to or
written by a person admitted to or receiving treatment, care or support
at the facility is forwarded, without being opened and without delay,
to the person to whom it is addressed.
(3) Subsection (2) does not apply if the responsible person is complying
with a limit imposed on communication between the admitted person
and other people under section 115 (Limits on communication—
forensic mental health order).
18 Failure by owner of facility to comply with pt 3.1
(1) The owner of a mental health facility that is not conducted by the
Territory commits an offence if the owner fails to comply with this
part.
Maximum penalty: 20 penalty units.
(2) Subsection (1) does not apply if the owner has a reasonable excuse.
(3) An offence against this section is a strict liability offence.
Rights of people with mental disorder or mental illness
Chapter 3
Nominated people
Part 3.2
Section 19
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Part 3.2 Nominated people
19 Nominated person
(1) A person with a mental disorder or mental illness, who has
decision-making capacity, may, in writing nominate someone else to
be the person’s nominated person.
Examples
1 a close relative or close friend
2 a carer
3 the person’s neighbour
Note If a person makes an advance agreement under pt 3.3, the agreement may
set out contact details for a nominated person (see s 26 (2) (c)).
(2) However, a person cannot be nominated under subsection (1) unless
the person—
(a) is an adult; and
(b) is able to undertake the functions of a nominated person; and
(c) is readily available; and
(d) agrees to the nomination.
20 Nominated person—functions
(1) The main function of a nominated person for a person with a mental
disorder or mental illness is to help the person by ensuring that the
interests, views and wishes of the person are respected if the person
requires treatment, care or support for a mental disorder or mental
illness.
(2) The other functions of a nominated person include—
(a) receiving information under this Act; and
(b) being consulted about decisions in relation to treatment, care or
support; and
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Rights of people with mental disorder or mental illness
Part 3.2
Nominated people
Section 21
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(c) other functions given to the nominated person under this Act.
21 Nominated person—obligations of person in charge of
facility
The person in charge of an approved mental health facility or
approved community care facility must take all reasonable steps to
ensure that—
(a) a person receiving treatment, care or support at the facility is
asked whether the person has a nominated person; and
(b) if the person has a nominated person—
(i) details about the nominated person and a copy of the
written nomination are kept with the person’s record; and
(ii) a process is in place to periodically check the currency of
the information kept under subparagraph (i); and
(iii) if the ACAT is involved in decisions about the person—
the name of and contact information for the nominated
person is given to the ACAT.
22 Nominated person—end of nomination
(1) A person who has a nominated person and has decision-making
capacity may end the nomination by telling a member of the person’s
treating team, orally or in writing, that they do not want the nominated
person to continue to perform the functions of a nominated person.
(2) A nominated person may end their nomination by telling a member
of the person’s treating team, orally or in writing, that they are not
able to continue to perform the functions of a nominated person.
(3) A nomination ended by a person under subsection (1) or (2) ends on—
(a) the day the person tells the member of the treating team; or
(b) if the person tells the member of the treating team in writing that
the nomination ends on a later day—the later day.
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Chapter 3
Nominated people
Part 3.2
Section 22
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(4) The chief psychiatrist may end the nomination of a nominated person
if—
(a) the chief psychiatrist believes on reasonable grounds that—
(i) the nominated person is not able to continue to perform the
functions of a nominated person under section 20
(Nominated person—functions); or
(ii) the nominated person no longer satisfies the criteria
mentioned in section 19 (2) (Nominated person); or
(iii) it is in the best interest of the person who made the
nomination that the nomination ends; and
(b) the chief psychiatrist consults with the person who made the
nomination about the reasonable grounds for ending the
nomination.
(5) If the chief psychiatrist ends a nomination under subsection (4), the
chief psychiatrist—
(a) must make a record about the reason for ending the nomination;
and
(b) must give written notice of the day that the nomination is to end
to the following:
(i) the person who made the nomination;
(ii) the nominated person;
(iii) a member of the person’s treating team; and
(c) may, if the person who made the nomination has
decision-making capacity, ask the person whether there is
someone else who can be nominated; and
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Rights of people with mental disorder or mental illness
Part 3.2
Nominated people
Section 23
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(d) must advise the person who made the nomination about
advocacy services that may be available to provide assistance to
the person.
Examples—par (d)
1 the public advocate
2 ACT Disability, Aged and Carer Advocacy Service
(6) A member of a person’s treating team who is told about a nomination
ending under subsection (1), (2) or (4) must ensure that—
(a) information about the nomination ending is entered in the
person’s record as soon as practicable; and
(b) the person is told in a way that the person is most likely to
understand that the information has been entered in the person’s
record; and
(c) the person is given a copy of the information entered in the
person’s record.
(7) In this section:
treating team, for a person with a mental disorder or mental illness—
see section 24.
23 Nominated person—protection from liability
(1) A nominated person is not civilly liable for anything done or omitted
to be done honestly and without recklessness—
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the act or omission was in the
exercise of a function under this Act.
Note A reference to an Act includes a reference to the statutory instruments
made or in force under the Act, including any regulation (see Legislation
Act, s 104).
(2) Any civil liability that would, apart from subsection (1), attach to a
nominated person attaches instead to the Territory.
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Chapter 3
Advance agreements and advance consent directions
Part 3.3
Section 24
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Part 3.3 Advance agreements and
advance consent directions
24 Definitions—pt 3.3
In this part:
representative, of a treating team, means the member of the treating
team nominated by the team to exercise the functions of a
representative for this part.
treating team, for a person with a mental disorder or mental illness,
means the mental health professionals involved in the treatment care
or support of the person for a particular episode of treatment, care or
support, and includes—
(a) if the person names another mental health professional as the
person’s current mental health professional—that other mental
health professional; and
(b) if another mental health professional referred the person to the
treating team for that episode of care—that other mental health
professional.
25 Rights in relation to advance agreements and advance
consent directions
The representative of the treating team for a person with a mental
disorder or mental illness must, as soon as practicable, ensure that the
person—
(a) is told that the person may enter into an advance agreement; and
(b) is given the opportunity to enter into an advance agreement; and
(c) is told that the person may make an advance consent direction;
and
(d) is given the opportunity to make an advance consent direction;
and
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Rights of people with mental disorder or mental illness
Part 3.3
Advance agreements and advance consent directions
Section 26
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(e) is told that the person may have someone with them to assist in
entering into an advance agreement or making an advance
consent direction.
Example—par (e)
a nominated person could assist the person
26 Entering into advance agreement
(1) A person with a mental disorder or mental illness who has
decision-making capacity may enter into an agreement (an advance
agreement) with the person’s treating team that sets out—
(a) information the person considers relevant to their treatment, care
or support for the mental disorder or mental illness (but not
information more appropriate to include in an advance consent
direction); and
Note See s 27 (1) for what an advance consent direction may be about.
(b) any preferences the person has in relation to practical help the
person may need as a result of the mental disorder or mental
illness.
Examples—practical help
1 arranging for the payment of bills
2 arranging care or providing care for a close relative or close friend
usually cared for by the person with the mental disorder or mental illness
(2) An advance agreement for a person may also set out the following:
(a) if the person has an advance consent direction—a copy of the
advance consent direction;
(b) if the person has a nominated person—contact details for the
nominated person;
(c) if there is a person who is likely to provide practical help under
the agreement—contact details for the person;
(d) if the person has a carer—contact details for the carer;
Rights of people with mental disorder or mental illness
Chapter 3
Advance agreements and advance consent directions
Part 3.3
Section 26
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(e) if the person has a guardian under the Guardianship and
Management of Property Act 1991—contact details for the
guardian;
(f) if the person has an attorney under the Powers of Attorney
Act 2006—contact details for the attorney;
(g) any other relevant details.
Examples—par (g)
1 that the person cannot speak, read or write English, but is fluent in
another stated language (for example, AUSLAN or Italian)
2 that the person cannot speak but can communicate using a stated
communication device (for example, a communication book or board)
(3) An advance agreement for a person must be—
(a) in writing; and
(b) signed by—
(i) the person; and
(ii) the representative of the person’s treating team; and
(iii) if the person has a nominated person—the nominated
person.
(4) If there is a person who is likely to provide practical help under the
advance agreement, the agreement may also be signed by that person.
(5) The representative of the person’s treating team must ensure that—
(a) the advance agreement is entered in the person’s record; and
(b) a copy of the advance agreement is given to—
(i) the person; and
(ii) if the person has a nominated person—the nominated
person; and
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Rights of people with mental disorder or mental illness
Part 3.3
Advance agreements and advance consent directions
Section 27
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(iii) if there is a person who is likely to provide practical help
under the agreement and the person consents to that person
being given a copy—that person; and
(iv) if the person has a carer and the person consents to the carer
being given a copy—the carer; and
(v) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian and the
ACAT; and
(vi) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney; and
(vii) any member of the person’s treating team who does not
have access to the person’s record.
27 Making advance consent direction
(1) A person with a mental disorder or mental illness may make a
direction (an advance consent direction) about 1 or more of the
following:
(a) the treatment, care or support that the person consents to
receiving if the mental disorder or mental illness results in the
person not having decision-making capacity;
(b) particular medications or procedures that the person consents to
receiving if the mental disorder or mental illness results in the
person not having decision-making capacity;
(c) particular medications or procedures that the person does not
consent to receiving if the mental disorder or mental illness
results in the person not having decision-making capacity;
(d) the people who may be provided with information about the
treatment, care or support the person requires for a mental
disorder or mental illness;
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Chapter 3
Advance agreements and advance consent directions
Part 3.3
Section 27
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(e) the people who are not to be provided with information about
the treatment, care or support the person requires for a mental
disorder or mental illness.
Note The disclosure of personal health information is subject to the
Health Records (Privacy and Access) Act 1997.
(2) A person with a mental disorder or mental illness may make an
advance consent direction only if the person—
(a) has decision-making capacity; and
(b) has consulted with the person’s treating team about options for
treatment care and support in relation to the mental disorder or
mental illness.
(3) An advance consent direction that does not include advance consent
for electroconvulsive therapy or psychiatric surgery must be—
(a) in writing; and
(b) signed by the person in the presence of a witness who is not a
treating health professional for the person, and by the witness in
the presence of the person; and
(c) signed by the representative of the person’s treating team in the
presence of a witness who is not a treating health professional
for the person, and by the witness in the presence of the
representative.
(4) An advance consent direction that includes advance consent for
electroconvulsive therapy must—
(a) be in writing; and
(b) state the maximum number of times (not more than 9) that
electroconvulsive therapy may be administered to the person
under the consent; and
Chapter 3
Rights of people with mental disorder or mental illness
Part 3.3
Advance agreements and advance consent directions
Section 27
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(c) be signed by the person in the presence of 2 witnesses who are
not treating health professionals for the person, and by each
witness in the presence of the other witness and the person; and
(d) be signed by the representative of the person’s treating team in
the presence of 2 witnesses who are not treating health
professionals for the person, and by each witness in the presence
of the other witness and the representative.
(5) An advance consent direction that includes advance consent for
psychiatric surgery must be—
(a) in writing; and
(b) signed by the person in the presence of 2 witnesses who are not
treating health professionals for the person, and by each witness
in the presence of the other witness and the person; and
(c) signed by the representative of the person’s treating team in the
presence of 2 witnesses who are not treating health professionals
for the person, and by each witness in the presence of the other
witness and the representative.
(6) The representative of the person’s treating team must ensure that—
(a) the advance consent direction is entered in the person’s record;
and
(b) a copy of the advance consent direction is given to—
(i) the person; and
(ii) if the person has a nominated person—the nominated
person; and
(iii) if the person has a carer and the person consents to the carer
being given a copy—the carer; and
(iv) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian and the
ACAT; and
Rights of people with mental disorder or mental illness
Chapter 3
Advance agreements and advance consent directions
Part 3.3
Section 28
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(v) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney; and
(vi) any member of the person’s treating team who does not
have access to the person’s record.
28 Giving treatment etc under advance agreement or
advance consent direction
(1) A mental health professional must, before giving treatment, care or
support to a person with a mental disorder or mental illness, take
reasonable steps to find out whether an advance agreement or
advance consent direction is in force in relation to the person.
(2) If an advance agreement is in force and the person does not have
decision-making capacity, a mental health professional—
(a) must, if reasonably practicable, give treatment, care or support
to the person in accordance with the preferences expressed in
the agreement; and
(b) must not apprehend, detain, restrain or use force to give effect
to the agreement.
(3) If an advance consent direction is in force and the person does not
have decision-making capacity, a mental health professional—
(a) may give the person the treatment, care or support if the
direction gives consent for the treatment, care or support; and
(b) may give a particular medication or procedure if the direction
indicates that the person consents to the medication or
procedure; and
(c) must not give a particular medication or procedure if the
direction indicates that the person does not consent to the
medication or procedure; and
(d) must not apprehend, detain, restrain or use force to give effect
to the direction.
Chapter 3
Rights of people with mental disorder or mental illness
Part 3.3
Advance agreements and advance consent directions
Section 29
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(4) If an advance consent direction is in force in relation to a person but
the person resists being given treatment, care or support to which they
have consented under the direction, a mental health professional may
give the treatment, care or support to the person only if the ACAT, on
application by the mental health professional, orders that the
treatment, care or support may be given.
(5) If a mental health professional believes on reasonable grounds that
giving treatment, care or support to a person with impaired
decision-making capacity in accordance with an advance consent
direction is unsafe or inappropriate, the mental health professional
may give the person other treatment, care or support only if—
(a) both of the following apply:
(i) the person is willing to receive the treatment, care or
support;
(ii) the person has a guardian or health attorney under the
Guardianship and Management of Property Act 1991, or
attorney under the Powers of Attorney Act 2006, and the
guardian, health attorney or attorney gives consent to the
treatment, care or support in accordance with the guardian,
health attorney or attorney’s appointment; or
(b) the ACAT, on application by the mental health professional,
orders that the treatment, care or support may be given.
(6) The mental health professional must enter in the person’s record the
reasons for the treatment, care or support given under
subsection (5) (a).
29 Ending advance agreement or advance consent direction
(1) A person who has decision-making capacity may end the person’s
advance agreement by—
(a) telling a member of the person’s treating team, orally or in
writing, that the person wants to end the agreement; or
Rights of people with mental disorder or mental illness
Chapter 3
Advance agreements and advance consent directions
Part 3.3
Section 29
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(b) entering into another advance agreement.
(2) A person who has decision-making capacity may end the person’s
advance consent direction by—
(a) telling a member of the person’s treating team, orally or in
writing, that the person wants to end the direction; or
(b) making another advance consent direction.
(3) An advance agreement ended under subsection (1) (a) or an advance
consent direction ended under subsection (2) (a) ends on—
(a) the day the person tells the member of the person’s treating
team; or
(b) if the person tells the member of the person’s treating team in
writing that agreement or direction ends on a later day—the later
day.
(4) A member of a person’s treating team who is told about an advance
agreement ending under subsection (1) (a) or an advance consent
direction ending under subsection (2) (a) must ensure that—
(a) information about the end of the agreement or direction—
(i) is entered in the person’s record as soon as practicable; and
(ii) is given to—
(A) any member of the person’s treating team who does
not have access to the person’s record; and
(B) if the person has a nominated person—the nominated
person; and
(C) if there is a person who was likely to provide practical
help under the agreement and the person consents to
that person being given a copy—that person; and
(D) if the person has a carer and the person consents to the
carer being given a copy—the carer; and
Chapter 3
Rights of people with mental disorder or mental illness
Part 3.3
Advance agreements and advance consent directions
Section 30
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(E) if the person has a guardian under the Guardianship
and Management of Property Act 1991—the guardian
and the ACAT; and
(F) if the person has an attorney under the Powers of
Attorney Act 2006—the attorney; and
(b) the person is told in a way that the person is most likely to
understand that the information has been entered in the person’s
record; and
(c) the person is given a copy of the information entered in the
person’s record.
30 Effect of advance agreement and advance consent
direction on guardian with authority to give consent for
treatment, care or support
(1) This section applies if—
(a) an advance agreement or an advance consent direction is in force
in relation to a person; and
(b) the person has a guardian under the Guardianship and
Management of Property Act 1991 with authority to give
consent for medical treatment involving treatment, care or
support under this Act.
(2) Any power of the guardian to consent to treatment, care or support
for the person must be exercised taking into account the advance
agreement or advance consent direction.
(3) However, the guardian’s consent is not required for any treatment,
care or support for which consent is provided under the advance
consent direction.
Rights of people with mental disorder or mental illness
Chapter 3
Advance agreements and advance consent directions
Part 3.3
Section 31
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31 Effect of advance agreement and advance consent
direction on attorney with power to deal with health care
matters
(1) This section applies if—
(a) an advance agreement or an advance consent direction is in force
in relation to a person; and
(b) the person has an enduring power of attorney under the Powers
of Attorney Act 2006 that deals with health care matters under
that Act.
(2) The advance agreement or advance consent direction may be used by
the attorney to work out a person’s wishes or needs under the Powers
of Attorney Act 2006, schedule 1, section 1.6 (Participation in
decision making).
(3) Any power of the attorney to consent to treatment, care or support for
the person must be exercised taking into account the advance
agreement or advance consent direction.
(4) However, the attorney’s consent is not required for any treatment,
care or support for which consent is provided under the advance
consent direction.
32 Effect of health direction on previous advance consent
direction
(1) This section applies if—
(a) a person makes an advance consent direction; and
(b) after the direction is made the person makes a health direction
under the Medical Treatment (Health Directions) Act 2006; and
(c) the health direction deals with a matter mentioned in the advance
consent direction.
(2) The advance consent direction has no effect to the extent that is
inconsistent with the health direction.
Chapter 4
Assessments
Part 4.1
Applications for assessment orders
Section 33
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Chapter 4 Assessments
Part 4.1 Applications for assessment
orders
Note In addition to assessments under this chapter, a person may also be
assessed as a result of apprehension and examination under ch 6
(Emergency detention).
33 Applications by people with mental disorder or mental
illness—assessment order
(1) This section applies if a person believes themself to be, because of
mental disorder or mental illness—
(a) unable to make reasonable judgments about matters relating to
their own health or safety; or
(b) unable to do something necessary for their own health or safety;
or
(c) likely to do serious harm to others.
(2) The person may apply to the ACAT for an assessment order in
relation to themself.
Note 1 Requirements for applications to the ACAT are set out in the ACT Civil
and Administrative Tribunal Act 2008, s 10.
Note 2 If a form is approved under the ACT Civil and Administrative Tribunal
Act 2008, s 117 for the application, the form must be used.
Assessments
Chapter 4
Applications for assessment orders
Part 4.1
Section 34
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34 Applications by other people—assessment order
(1) This section applies if a person (the applicant) believes on reasonable
grounds that—
(a) the health or safety of another person (the subject person) is, or
is likely to be, substantially at risk because the subject person is
unable, because of mental disorder or mental illness—
(i) to make reasonable judgments about matters relating to the
subject person’s health or safety; or
(ii) to do something necessary for the subject person’s health
or safety; or
(b) another person (the subject person) is doing, or is likely to do,
because of mental disorder or mental illness, serious harm to
others.
(2) The applicant may apply to the ACAT for an assessment order in
relation to the subject person.
Note 1 Requirements for applications to the ACAT are set out in the ACT Civil
and Administrative Tribunal Act 2008, s 10.
Note 2 If a form is approved under the ACT Civil and Administrative Tribunal
Act 2008, s 117 for the application, the form must be used.
35 Applications by referring officers—assessment order
(1) This section applies if a referring officer believes on reasonable
grounds that—
(a) a person alleged to have committed an offence has a mental
disorder or mental illness; and
(b) because of the mental disorder or mental illness—
(i) the person’s health or safety is, or is likely to be,
substantially at risk; or
Chapter 4
Assessments
Part 4.1
Applications for assessment orders
Section 35
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(ii) the person is doing, or is likely to do, serious harm to
others; and
(c) it may not be appropriate to prosecute, or to continue to
prosecute, the person considering—
(i) the nature and circumstances of the alleged offence; and
(ii) the person’s apparent mental disorder or mental illness.
(2) The referring officer may apply to the ACAT for an assessment order
in relation to the person.
Note After an assessment is made, the ACAT may decide to make a mental
health order in relation to a person (see pt 5.2). The ACAT is not able to
make a forensic mental health order for a person unless the person is
otherwise a person for whom a forensic mental health order can be made
(see ch 7).
(3) A referring officer who applies under subsection (2) and believes on
reasonable grounds that there is a risk of serious danger to public
safety from the person, must tell the ACAT, in writing, about the risk
and the basis for the belief about the risk.
(4) In this section:
alleged to have committed an offence—a person is alleged to have
committed an offence if—
(a) the person is arrested in connection with an offence; or
(b) a police officer believes on reasonable grounds that there are
sufficient grounds on which to charge the person in connection
with an offence; or
(c) the person is charged in connection with an offence.
Assessments
Chapter 4
Applications for assessment orders
Part 4.1
Section 36
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36 Applicant and referring officer to tell ACAT of risks—
assessment order
(1) This section applies if—
(a) a person (the applicant) applies under section 34 (Applications
by other people—assessment order), or a referring officer
applies under section 35, for an assessment order in relation to
someone else; and
(b) the applicant or referring officer believes on reasonable grounds
that anything to do with the application process is likely to
substantially increase—
(i) the risk to the other person’s health or safety; or
(ii) the risk of serious harm to others.
(2) The application must state—
(a) the applicant’s or referring officer’s belief about the
substantially increased risk; and
(b) the basis for the belief.
(3) The ACAT must give the chief psychiatrist a copy of the application.
Chapter 4
Assessments
Part 4.2
Assessment orders
Section 37
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Part 4.2 Assessment orders
37 Assessment order
(1) The ACAT may order an assessment of a person if—
(a) an application for an assessment order is made under part 4.1
and the ACAT is satisfied on the face of the application that—
(i) the person appears to have a mental disorder or mental
illness; and
(ii) either—
(A) the person’s health or safety is, or is likely to be,
substantially at risk; or
(B) the person is doing, or is likely to do, serious harm to
others; or
(b) the ACAT reviews a mental health order in force in relation to
the person under section 79 (Review of mental health order); or
(c) the person is required to submit to the jurisdiction of the ACAT
under—
(i) an ACAT mental health provision in a care and protection
order or interim care and protection order; or
(ii) a mental health referral by the Childrens Court in a
proceeding for an interim intensive therapy order or
intensive therapy order; or
(iii) a requirement of an interim intensive therapy order or
intensive therapy order; or
(d) the person is required by a court to submit to the jurisdiction of
the ACAT under the Crimes Act, part 13 or the Crimes Act 1914
(Cwlth), part 1B; or
Assessments
Chapter 4
Assessment orders
Part 4.2
Section 38
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(e) the ACAT reviews an order for detention in force in relation to
the person under section 180 (Review of detention under court
order).
Note If a person is assessed under an assessment order as having a mental
disorder or mental illness, the ACAT may make a mental health order or
forensic mental health order in relation to the person (see s 58, s 66, s 101
and s 108).
(2) In this section:
ACAT mental health provision, in a care and protection order or
interim care and protection order—see the Children and Young
People Act 2008, section 491.
38 Consent for assessment order
(1) If the ACAT is considering ordering an assessment of a person under
section 37 (a), (b) or (c), the ACAT must take reasonable steps to—
(a) tell the person in writing that—
(i) the ACAT is considering ordering an assessment; and
(ii) an assessment may lead to an order for treatment; and
(iii) if an order for treatment is made at a later time the person’s
rights in relation to treatment will be explained to the
person at that time; and
(b) find out the person’s opinion in relation to the assessment; and
(c) obtain the person’s consent to the assessment.
(2) However, subsection (1) does not prevent the ACAT from ordering
an assessment without the person’s consent.
39 Emergency assessment order
(1) This section applies if—
(a) the ACAT is considering ordering an assessment of a person
under section 37 (a), (b) or (c); and
Chapter 4
Assessments
Part 4.2
Assessment orders
Section 40
page 38
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(b) a presidential member of the ACAT has a serious concern about
the immediate safety of the person, the applicant for the order or
another person arising out of the application process.
(2) The presidential member of the ACAT—
(a) must give the chief psychiatrist written notice of the serious
concern; and
(b) may if necessary and reasonable order an assessment without
complying with section 38 (Consent for assessment order).
Note 1 For principles that must be taken into account when exercising a function
under this Act, see s 6.
Note 2 Section 188 (Notice of hearing) does not apply in relation to the making
of an emergency assessment order (see s 188 (3)).
40 Content and effect of assessment order
(1) An assessment order (including an emergency assessment order)
must—
(a) state the nature of the assessment to be conducted; and
(b) state the approved mental health facility or other place at which
the assessment is to be conducted and, if appropriate, the person
who is to conduct the assessment; and
(c) if the assessment is to be conducted at an approved mental health
facility—
(i) direct the person to be assessed to attend the facility and, if
necessary and reasonable, stay at the facility until the
assessment has been conducted; and
(ii) direct the person in charge of the facility to—
(A) if appropriate, admit the person to be assessed to the
facility to conduct the assessment; and
Assessments
Chapter 4
Assessment orders
Part 4.2
Section 41
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(B) if necessary and reasonable, detain the person at the
facility until the assessment has been conducted; and
(C) provide the assistance that is necessary and
reasonable to conduct the assessment.
(2) An assessment order (including an emergency assessment order)
authorises—
(a) the conduct of the assessment stated in the order; and
(b) anything necessary and reasonable to be done to conduct the
assessment.
(3) In making an assessment order (other than an emergency assessment
order), the ACAT must explain the effect of section 58 (Psychiatric
treatment order) or section 66 (Community care order) to the person
in relation to whom the order is to be made, in a way that the person
is most likely to understand.
Note Under s 58 and s 66, an application is not required for a psychiatric
treatment order or community care order in relation to a person who has
been assessed under an assessment order as having a mental disorder or
mental illness.
41 Public advocate to be told about assessment order
The ACAT must tell the public advocate, in writing, about an
assessment order made in relation to a person immediately after the
order is made.
42 Time for conducting assessment
(1) The assessment of a person in relation to whom an assessment order
is made must be conducted as soon as practicable, and not later than—
(a) 7 days after the day the order is made; or
(b) if an earlier day is stated in the order—the stated day; or
(c) if a removal order is made under section 43 (2) in relation to the
assessment—7 days after the day the removal order is executed.
Chapter 4
Assessments
Part 4.2
Assessment orders
Section 43
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(2) However, the ACAT may, on application, extend the period for
conducting the assessment if satisfied, based on clinical evidence
provided to it by the person conducting the assessment, that a
satisfactory assessment cannot be completed within the period under
subsection (1).
(3) The extension must be for a period not longer than 7 days.
43 Removal order to conduct assessment
(1) This section applies if the ACAT makes—
(a) an assessment order in relation to a person under section 37 (a),
(b) or (c) (Assessment order) who—
(i) has not been served with a subpoena under the ACT Civil
and Administrative Tribunal Act 2008, section 41 (Powers
in relation to witnesses etc) for a reason stated in
section 192 (3) (Subpoena to appear in person); or
(ii) does not appear at a proceeding in relation to the order
under a subpoena given under the ACT Civil and
Administrative Tribunal Act 2008, section 41; or
(iii) does not comply with the assessment order; or
(b) an assessment order in relation to a person under section 37 (d)
or (e); or
(c) an emergency assessment order in relation to a person.
(2) The ACAT may order (a removal order) the removal of the person to
an approved mental health facility to conduct the assessment if
satisfied that—
(a) the person has been made aware of the assessment order (unless
the assessment order is an emergency assessment order); and
Assessments
Chapter 4
Assessment orders
Part 4.2
Section 44
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(b) either—
(i) if the person does not comply with the assessment order—
the person does not have a reasonable excuse for failing to
comply with the order; or
(ii) in any other case—the ACAT is satisfied that it is
appropriate in the circumstances.
(3) The removal order must state—
(a) the day (not later than 1 month after the day the order is made)
when the order stops having effect; and
(b) the mental health facility to which the person is to be removed;
and
(c) the nature of the assessment to be conducted in relation to the
person.
(4) A removal order authorises—
(a) the apprehension of the person named in the order; and
(b) the removal of the person to the mental health facility stated in
the order.
44 Executing removal order
(1) A removal order made under section 43 (2) in relation to a person
may be executed by a police officer, authorised ambulance
paramedic, doctor or mental health officer.
(2) The person executing the order must, before removing the person,
explain to the person the purpose of the order.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
Chapter 4
Assessments
Part 4.2
Assessment orders
Section 45
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45 Contact with others
(1) This section applies if a person is admitted to a mental health facility
under an assessment order.
(2) The person in charge of the mental health facility must, as soon as
practicable after admitting the person to the facility, tell the public
advocate in writing that the person has been admitted.
(3) The person in charge of the mental health facility must ensure that,
while at the facility, the person has access to facilities, and adequate
opportunity, to contact each of the following:
(a) a relative or friend;
(b) the public advocate;
(c) a lawyer;
(d) if the person has a nominated person—the nominated person.
46 Public advocate and lawyer to have access
(1) This section applies if a person is admitted to a mental health facility
under an assessment order.
(2) The public advocate and the person’s lawyer are entitled to have
access to the person at any time.
(3) The person in charge of the mental health facility must, if asked by
the public advocate or the person’s lawyer, give the reasonable
assistance necessary to allow the public advocate or lawyer to have
access to the person.
47 Person to be assessed to be told about order
(1) This section applies if an assessment is to be conducted at an
approved mental health facility or other place under an assessment
order.
Assessments
Chapter 4
Assessment orders
Part 4.2
Section 48
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(2) The person in charge of the approved mental health facility or other
place must, before the assessment is conducted, ensure that the person
to be assessed is told about the assessment order, including the
process of assessment and possible outcomes of an assessment, in a
way that the person is most likely to understand.
(3) This section applies even if the person to be assessed was present
when the order was made.
48 Copy of assessment
(1) This section applies if an assessment is conducted at a mental health
facility or other place under an assessment order.
(2) The person in charge of the mental health facility or other place must,
as soon as practicable, but not later than 7 days after completing the
assessment—
(a) give a copy of the assessment to—
(i) the person assessed; and
(ii) the ACAT; and
(iii) the public advocate; and
(iv) if the person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility);
and
(v) if the person was assessed as a result of an application
under section 35 (Applications by referring officers—
assessment order)—the referring officer; and
Chapter 4
Assessments
Part 4.2
Assessment orders
Section 49
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(b) tell the following people in writing about the outcome of the
assessment:
(i) if the person has a nominated person—the nominated
person;
(ii) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(iii) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney.
49 Notice of outcome of assessment
(1) This section applies if an assessment is conducted as a result of an
application under section 34 (Applications by other people—
assessment order) or section 35 (Applications by referring officers—
assessment order).
(2) The ACAT must, as soon as practicable after it is given a copy of the
assessment under section 48 (2), give written notice to the applicant
or the referring officer of any recommendations made by the
assessment.
(3) An applicant or referring officer who receives notice under
subsection (2) may, within 48 hours of receiving the notice, give the
following to the ACAT:
(a) further information about the person’s mental disorder or mental
illness;
(b) concerns about the implications for the person or for other
people of not considering a mental health order in relation to the
person.
(4) In deciding whether to hold a hearing to consider making a mental
health order in relation to a person, the ACAT must take into account
the information provided under subsection (3).
Mental health orders
Chapter 5
Preliminary
Part 5.1
Section 50
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Chapter 5 Mental health orders
Part 5.1 Preliminary
50 Definitions—ch 5
In this chapter:
relevant official, for a mental health order, means—
(a) for a psychiatric treatment order—the chief psychiatrist; or
(b) for a community care order—the care coordinator.
relevant person, for a mental health order application, means—
(a) for a psychiatric treatment order—the chief psychiatrist or
another person nominated by the chief psychiatrist; and
(b) for a community care order—a person who can make the
statement required under section 51 (3) (a) for the application.
Chapter 5
Mental health orders
Part 5.2
Applications for mental health orders
Section 51
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Part 5.2 Applications for mental health
orders
51 Applications for mental health orders
(1) This section applies if a relevant person believes on reasonable
grounds that a person (the subject person) is a person in relation to
whom the ACAT could reasonably make an order under section 58
(Psychiatric treatment order) or section 66 (Community care order).
(2) The relevant person may apply to the ACAT for a mental health order
in relation to the subject person.
Note 1 An application is not required in relation to a person who has been
assessed under an assessment order as having a mental disorder or mental
illness (see s 58 and s 66).
Note 2 Requirements for applications to the ACAT are set out in the ACT Civil
and Administrative Tribunal Act 2008, s 10.
Note 3 If a form is approved under the ACT Civil and Administrative Tribunal
Act 2008, s 117 for the application, the form must be used.
(3) The application must include—
(a) a written statement by the relevant person addressing the criteria
the ACAT must consider in making an order under section 58
(Psychiatric treatment order) or section 66 (Community care
order); and
(b) a plan setting out the proposed treatment, care or support of the
subject person.
Mental health orders
Chapter 5
Applications for mental health orders
Part 5.2
Section 52
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52 Applicant to tell ACAT of risks
(1) This section applies if—
(a) a person (the applicant) applies under section 51 for a mental
health order in relation to someone else (the subject person); and
(b) the applicant believes on reasonable grounds that anything to do
with the application process is likely to substantially increase—
(i) the risk to the subject person’s health or safety; or
(ii) the risk of serious harm to others.
(2) The application must state—
(a) the applicant’s belief about the substantially increased risk; and
(b) the basis for the belief.
Chapter 5
Mental health orders
Part 5.3
Making of mental health orders—preliminary matters
Section 53
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Part 5.3 Making of mental health orders—
preliminary matters
53 ACAT must consider assessment—mental health order
(1) Before making a mental health order in relation to a person, the
ACAT must consider—
(a) an assessment of the person conducted under an assessment
order; or
(b) another assessment of the person that the ACAT considers
appropriate.
(2) In considering an assessment, the ACAT must take into account how
recently the assessment was conducted.
(3) The ACAT may consider making a mental health order even if an
assessment recommends that the ACAT not consider making a mental
health order.
54 Consultation by ACAT—mental health order
(1) Before making a mental health order in relation to a person, the
ACAT must, as far as practicable, consult—
(a) if the person is a child—each person with parental responsibility
for the child under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility); and
(b) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian; and
(c) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney; and
(d) if the person has a nominated person—the nominated person;
and
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Making of mental health orders—preliminary matters
Part 5.3
Section 54
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(e) if a health attorney is involved in the treatment, care or support
of the person—the health attorney; and
(f) if the chief psychiatrist or care-coordinator is likely to be
responsible for providing the treatment, care or support
proposed to be ordered—the chief psychiatrist or
care-coordinator; and
(g) if the person is a detainee, a person released on parole or licence,
or a person serving a community-based sentence—the
corrections director-general; and
(h) if the person is covered by a bail order that includes a condition
that the person accept supervision under the Bail Act 1992,
section 25 (4) (e) or section 25A—the director-general
responsible for the supervision of the person under the Bail
Act 1992; and
(i) if the person is a child covered by a bail order that includes a
condition that the child accept supervision under the Bail
Act 1992, section 26 (2)—the CYP director-general; and
(j) if the person is a young detainee or a young offender serving a
community-based sentence—the CYP director-general; and
(k) if an assessment order under part 4.1 (Applications for
assessment orders) gave rise to the ACAT consideration of the
making of the mental health order—the applicant for the
assessment order.
(2) Before making a mental health order in relation to a person who has
a carer, the ACAT must, as far as practicable, tell the carer in writing
that—
(a) a hearing will be held in relation to making a mental health order
for the person; and
Chapter 5
Mental health orders
Part 5.3
Making of mental health orders—preliminary matters
Section 55
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(b) the carer may do either or both of the following:
(i) make a submission to the ACAT in relation to making a
mental health order for the person;
(ii) apply to the ACAT to attend the hearing.
55 ACAT must hold hearing—mental health order
Before making a mental health order in relation to a person, the
ACAT must hold a hearing into the matter.
56 What ACAT must take into account—mental health order
(1) In making a mental health order in relation to a person, the ACAT
must take into account the following:
(a) for a person the subject of an application under section 51
(Applications for mental health orders)—a plan for the proposed
treatment, care or support of the person, mentioned in section
51 (3) (b);
(b) whether the person consents, refuses to consent or has the
decision-making capacity to consent, to a proposed course of
treatment, care or support;
(c) the views and wishes of the person, so far as they can be found
out, including in—
(i) an advance agreement; and
(ii) an advance consent direction;
(d) the views of the people responsible for the day-to-day care of
the person, so far as those views are made known to the ACAT;
(e) the views of the people appearing at the proceeding;
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Making of mental health orders—preliminary matters
Part 5.3
Section 56
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(f) if the proceeding is on a mental health order for which there is a
registered affected person for an offence committed or alleged
to have been committed by the person—any statement by the
registered affected person;
(g) the views of the people consulted under section 54 (Consultation
by ACAT—mental health order);
(h) that any restrictions placed on the person should be the
minimum necessary for the safe and effective care of the person;
(i) any alternative treatment, care or support available, including—
(i) the purpose of the treatment, care or support; and
(ii) the benefits likely to be derived by the person from the
treatment, care or support; and
(iii) the distress, discomfort, risks, side effects or other
disadvantages associated with the treatment, care or
support;
(j) any relevant medical history of the person;
(k) for a person required by a court to submit to the jurisdiction of
the ACAT under the Crimes Act, part 13 or the Crimes Act 1914
(Cwlth), part 1B—
(i) the nature and circumstances of the alleged offence or the
offence in relation to which the person is charged; and
(ii) the nature and extent of the person’s mental illness or
mental disorder and the effect it is likely to have on the
person’s behaviour in the future; and
(iii) whether, if the person is not detained—
(A) the person’s health or safety is, or is likely to be,
substantially at risk; or
(B) the person is likely to do serious harm to others;
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Part 5.3
Making of mental health orders—preliminary matters
Section 57
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(l) if the proceeding is on a mental health order for which there is a
registered affected person for the offence committed or alleged
to have been committed by the person—the views of the victims
of crime commissioner;
(m) anything else prescribed by regulation.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(2) Before the ACAT makes a mental health order for the provision of
particular treatment, care or support at a stated facility or by a stated
person, the ACAT must be satisfied that the treatment, care or support
can be provided at the stated facility or by the stated person.
(3) The ACAT may ask the relevant person to provide information on the
options that the relevant person considers are appropriate for the
provision of particular treatment, care or support under the proposed
mental health order.
(4) The relevant person must respond to the ACAT within 7 days after
receiving a request under subsection (3), or any longer time allowed
by the ACAT.
57 ACAT must not order particular treatment, care or
support—mental health order
In making a mental health order in relation to a person, the ACAT
must not order a particular form of treatment, care or support.
Mental health orders
Chapter 5
Psychiatric treatment orders
Part 5.4
Section 58
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Part 5.4 Psychiatric treatment orders
58 Psychiatric treatment order
(1) This section applies to—
(a) a person assessed under an assessment order; or
(b) a person in relation to whom an application for a mental health
order has been made under part 5.2; or
(c) a person in relation to whom an application for a forensic mental
health order has been made under division 7.1.2; or
(d) a person required by a court to submit to the jurisdiction of the
ACAT under the Crimes Act, part 13 or the Crimes Act 1914
(Cwlth), part 1B.
(2) The ACAT may make a psychiatric treatment order in relation to the
person if—
(a) the person has a mental illness; and
(b) either—
(i) the person does not have decision-making capacity to
consent to the treatment, care or support and refuses to
receive the treatment, care or support; or
(ii) the person has decision-making capacity to consent to the
treatment, care or support, but refuses to consent; and
(c) the ACAT believes on reasonable grounds that, because of the
mental illness, the person—
(i) is doing, or is likely to do, serious harm to themself or
someone else; or
(ii) is suffering, or is likely to suffer, serious mental or physical
deterioration; and
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Mental health orders
Part 5.4
Psychiatric treatment orders
Section 59
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(d) in relation to a person mentioned in paragraph (b) (ii)—the
ACAT is satisfied that the harm or deterioration, or likely harm
or deterioration, mentioned in paragraph (c) is of such a serious
nature that it outweighs the person’s right to refuse to consent;
and
(e) the ACAT is satisfied that psychiatric treatment, care or support
is likely to—
(i) reduce the harm or deterioration, or the likelihood of the
harm or deterioration, mentioned in paragraph (c); or
(ii) result in an improvement in the person’s psychiatric
condition; and
(f) if an application has been made for a forensic mental health
order—the ACAT is satisfied that a psychiatric treatment order
should be made instead; and
(g) the ACAT is satisfied that the treatment, care or support to be
provided under the psychiatric treatment order cannot be
adequately provided in another way that would involve less
restriction of the freedom of choice and movement of the person.
59 Content of psychiatric treatment order
(1) A psychiatric treatment order made in relation to a person may state
1 or more of the following:
(a) an approved mental health facility to which the person may be
admitted;
(b) that the person must do either or both of the following:
(i) undergo psychiatric treatment, other than
electroconvulsive therapy or psychiatric surgery;
(ii) undertake a counselling, training, therapeutic or
rehabilitation program;
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Psychiatric treatment orders
Part 5.4
Section 60
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(c) that limits may be imposed on communication between the
person and other people.
(2) A psychiatric treatment order made in relation to a person must—
(a) state that the person must comply with any determination made
under section 62 (Role of chief psychiatrist—psychiatric
treatment order); and
(b) be accompanied by a statement about how the person meets the
criteria under section 58 (2) (Psychiatric treatment order).
(3) A psychiatric treatment order must not include any requirement
mentioned in section 61 (1) (Content of restriction order made with
psychiatric treatment order).
60 Criteria for making restriction order with psychiatric
treatment order
In addition to making a psychiatric treatment order in relation to a
person, the ACAT may make a restriction order in relation to the
person if it believes on reasonable grounds that—
(a) it is in the interests of the person’s health or safety or the safety
of someone else or the public to do so; and
(b) the treatment, care or support to be provided under the
psychiatric treatment order cannot be adequately provided in
another way that would involve less restriction of the freedom
of choice and movement of the person.
Chapter 5
Mental health orders
Part 5.4
Psychiatric treatment orders
Section 61
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61 Content of restriction order made with psychiatric
treatment order
(1) A restriction order made under section 60 in relation to a person may
state either or both of the following:
(a) that the person must—
(i) live (but not be detained) at a stated place; or
(ii) be detained at a stated place;
(b) that the person must not approach a stated person or stated place
or undertake stated activities.
(2) A restriction order does not prevent the chief psychiatrist from
granting leave to a person detained at a stated place.
62 Role of chief psychiatrist—psychiatric treatment order
(1) The chief psychiatrist is responsible for the treatment, care or support
of a person to whom a psychiatric treatment order applies.
(2) Within 5 working days after the day the order is made, the chief
psychiatrist must determine, in writing—
(a) whether the person requires admission to an approved mental
health facility to receive treatment, care or support under the
order and, if so, whether the person can be given leave from the
facility; and
(b) for a person living in the community—the times when and the
place where the person is required to attend to receive treatment,
care or support, in accordance with the order; and
(c) the nature of the psychiatric treatment to be given to the person.
Note The power to make an instrument includes the power to amend or repeal
the instrument (see Legislation Act, s 46).
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Chapter 5
Psychiatric treatment orders
Part 5.4
Section 62
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(3) If the chief psychiatrist forms a belief on reasonable grounds that a
person subject to a psychiatric treatment order who is living in the
community requires admission to an approved mental health facility
to receive treatment, care or support under the order, the chief
psychiatrist may determine, in writing—
(a) the approved mental health facility that the person is to be
admitted to; and
(b) the nature of the psychiatric treatment to be given to the person;
and
(c) whether the person can be given leave from the facility.
(4) For subsection (2) (c) or (3) (b), the chief psychiatrist must not
determine treatment that has, or is likely to have, the effect of
subjecting the person to whom it is given to undue stress or
deprivation, having regard to the benefit likely to result from the
treatment.
(5) Before making a determination in relation to a person, the chief
psychiatrist must—
(a) take all reasonable steps to consult the following:
(i) the person;
(ii) if the person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility);
(iii) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(iv) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(v) if the person has a carer—the carer;
(vi) if the person has a nominated person—the nominated
person;
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Mental health orders
Part 5.4
Psychiatric treatment orders
Section 62
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(vii) if a health attorney is involved in the treatment, care or
support of the person—the health attorney;
(viii) if the person is a detainee, a person released on parole or
licence, or a person serving a community-based sentence—
the corrections director-general;
(ix) if the person is covered by a bail order that includes a
condition that the person accept supervision under the Bail
Act 1992, section 25 (4) (e) or section 25A—the
director-general responsible for the supervision of the
person under the Bail Act 1992;
(x) if the person is a child covered by a bail order that includes
a condition that the child accept supervision under the Bail
Act 1992, section 26 (2)—the CYP director-general;
(xi) if the person is a young detainee or a young offender
serving a community-based sentence—the CYP
director-general; and
(b) take into account the views of the people consulted under this
section.
(6) After making a determination in relation to a person, the chief
psychiatrist must record whether the person was consulted and—
(a) if the person was consulted—what the person’s views were; or
(b) if the person was not consulted—the reasons why.
(7) The chief psychiatrist must, as soon as practicable after making a
determination, give a copy of the determination to—
(a) the person; and
(b) if the person is a child—each person with parental responsibility
for the child under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility); and
(c) the ACAT; and
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Psychiatric treatment orders
Part 5.4
Section 63
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(d) the public advocate; and
(e) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian; and
(f) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney; and
(g) if the person has a nominated person—the nominated person;
and
(h) if a health attorney is involved in the treatment, care or support
of the person—the health attorney.
63 Treatment etc to be explained—psychiatric treatment
order
(1) Before treatment, care or support is given to a person under a
psychiatric treatment order, the chief psychiatrist must explain to the
person, the nature and effects (including any side effects) of the
treatment, care or support.
(2) The explanation must be given in a way that the person is most likely
to understand.
64 Action if psychiatric treatment order no longer
appropriate—no longer person in relation to whom ACAT
could make order
(1) This section applies if—
(a) a psychiatric treatment order is in force in relation to a person;
and
(b) the chief psychiatrist is satisfied that—
(i) the person is no longer a person in relation to whom the
ACAT could make a psychiatric treatment order; or
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Mental health orders
Part 5.4
Psychiatric treatment orders
Section 64
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(ii) if a restriction order is also in force in relation to the
person—it is no longer necessary for the restriction order
to be in force.
Note 1 For the criteria for making a psychiatric treatment order, see s 58. For the
criteria for making a restriction order with a psychiatric treatment order,
see s 60.
Note 2 For principles that must be taken into account when exercising a function
under this Act, see s 6.
(2) The chief psychiatrist must take all reasonable steps to give notice
to—
(a) if the person has a carer—the carer; and
(b) if the person has a nominated person—the nominated person.
(3) The notice must—
(a) include the reasons why the chief psychiatrist is satisfied of the
matter mentioned in subsection (1) (b); and
(b) ask whether the carer or nominated person is aware of any other
information that may be relevant to whether the psychiatric
treatment order or restriction order continues to be appropriate
for the person; and
(c) state that, subject to consideration of any information given
under paragraph (b), the chief psychiatrist must tell the ACAT
and public advocate of the matter mentioned in
subsection (1) (b) and the ACAT must review the psychiatric
treatment order or restriction order; and
(d) tell the carer that the carer is entitled to do either or both of the
following:
(i) make a submission to the ACAT review of the psychiatric
treatment order or restriction order;
(ii) apply to the ACAT to attend the hearing; and
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Psychiatric treatment orders
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(e) tell the nominated person that the nominated person is entitled
to make a submission to the ACAT review of the psychiatric
treatment order or restriction order.
(4) If, having taken into account any information given under subsection
(3) (b), the chief psychiatrist is still satisfied of the matter mentioned
in subsection (1) (b), the chief psychiatrist must tell the ACAT and
the public advocate in writing about—
(a) the chief psychiatrist’s opinion, including the reasons for the
opinion; and
(b) the details of any information given under subsection (3) (b).
Note The ACAT must review the order within 72 hours after being notified
under this section (see s 79 (3)).
65 Powers in relation to psychiatric treatment order
(1) This section applies if a psychiatric treatment order has been made in
relation to a person and—
(a) a restriction order has also been made in relation to the person
requiring the person to be detained at a stated place; or
(b) the chief psychiatrist makes a determination under
section 62 (Role of chief psychiatrist—psychiatric treatment
order) requiring the person to be admitted to an approved mental
health facility; or
(c) the person is detained at an approved mental health facility
under section 77 (Contravention of mental health order).
(2) The chief psychiatrist may—
(a) detain the person at an approved mental health facility; and
Note See s 264 (Powers of search and seizure).
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Part 5.4
Psychiatric treatment orders
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(b) subject the person to the minimum confinement or restraint that
is necessary and reasonable to—
(i) prevent the person from causing harm to themself or
someone else; or
(ii) ensure that the person remains in custody under the order;
and
(c) subject the person to involuntary seclusion if satisfied that it is
the only way in the circumstances to prevent the person from
causing harm to themself or someone else; and
(d) determine that the person can be given leave from the facility.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(3) If the chief psychiatrist subjects a person to involuntary seclusion, the
chief psychiatrist must ensure that the person is examined by a
relevant doctor of the relevant place at least once in each 4-hour
period for which the person is in seclusion.
(4) If the chief psychiatrist determines that a person be given medication
for the treatment of the person’s mental illness, the chief psychiatrist
may—
(a) approve the giving by appropriately trained people of
medication prescribed by a doctor in accordance with the chief
psychiatrist’s determination; and
(b) use, or authorise someone else to use, the force and assistance
that is necessary and reasonable to give the medication (forcible
giving of medication).
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Chapter 5
Psychiatric treatment orders
Part 5.4
Section 65
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(5) If the chief psychiatrist subjects a person to restraint, involuntary
seclusion or forcible giving of medication, the chief psychiatrist
must—
(a) enter in the person’s record the fact of and the reasons for the
restraint, involuntary seclusion or forcible giving of medication;
and
(b) tell the public advocate in writing of the restraint, involuntary
seclusion or forcible giving of medication; and
(c) keep a register of the restraint, involuntary seclusion or forcible
giving of medication.
(6) In this section:
relevant doctor, of a relevant place, means a person employed at the
place as a consultant psychiatrist, psychiatric registrar in consultation
with a consultant psychiatrist or another doctor in consultation with a
consultant psychiatrist.
Chapter 5
Mental health orders
Part 5.5
Community care orders
Section 66
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Part 5.5 Community care orders
66 Community care order
(1) This section applies to—
(a) a person assessed under an assessment order; or
(b) a person in relation to whom an application for a mental health
order has been made under part 5.2; or
(c) a person in relation to whom an application for a forensic mental
health order has been made under division 7.1.2; or
(d) a person required by a court to submit to the jurisdiction of the
ACAT under the Crimes Act, part 13 or the Crimes Act 1914
(Cwlth), part 1B.
(2) The ACAT may make a community care order in relation to the
person if—
(a) the person has a mental disorder; and
(b) either—
(i) the person does not have decision-making capacity to
consent to the treatment, care or support and refuses to
receive the treatment, care or support; or
(ii) the person has decision-making capacity to consent to the
treatment, care or support, but refuses to consent; and
(c) the ACAT believes on reasonable grounds that, because of the
mental disorder, the person—
(i) is doing, or is likely to do, serious harm to themself or
someone else; or
(ii) is suffering, or is likely to suffer, serious mental or physical
deterioration; and
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Community care orders
Part 5.5
Section 67
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(d) in relation to a person mentioned in paragraph (b) (ii)—the
ACAT is satisfied that the harm or deterioration, or likely harm
or deterioration, mentioned in paragraph (c) is of such a serious
nature that it outweighs the person’s right to refuse to consent;
and
(e) the ACAT is satisfied that treatment, care or support is likely to
reduce the harm or deterioration, or likelihood of harm or
deterioration, mentioned in paragraph (c); and
(f) the ACAT is satisfied that, in the circumstances, a psychiatric
treatment order should not be made; and
(g) if an application has been made for a forensic mental health
order—the ACAT is satisfied that a community care order
should be made instead; and
(h) the ACAT is satisfied that the treatment, care or support to be
provided under the community care order cannot be adequately
provided in another way that would involve less restriction of
the freedom of choice and movement of the person.
67 Content of community care order
(1) A community care order made in relation to a person may state 1 or
more of the following:
(a) that the person is to be given treatment, care or support;
(b) that the person may be given medication for the treatment of the
person’s mental disorder that is prescribed by a doctor;
(c) that the person is to undertake a counselling, training,
therapeutic or rehabilitation program;
(d) that limits may be imposed on communication between the
person and other people.
Chapter 5
Mental health orders
Part 5.5
Community care orders
Section 68
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(2) A community care order may not include any requirement mentioned
in section 69 (Content of restriction order made with community care
order etc).
(3) A community care order made in relation to a person must—
(a) state that the person must comply with any determination made
under section 70 (Role of care coordinator—community care
order); and
(b) be accompanied by a statement about how the person meets the
criteria under section 66 (2) (Community care order).
68 Criteria for making restriction order with community care
order
In addition to making a community care order in relation to a person,
the ACAT may make a restriction order in relation to the person if it
believes on reasonable grounds that—
(a) it is in the interests of the person’s health or safety or the safety
of someone else or the public to do so; and
(b) the treatment, care or support to be provided under the
community care order cannot be adequately provided in another
way that would involve less restriction of the freedom of choice
and movement of the person.
69 Content of restriction order made with community care
order etc
(1) A restriction order made under section 68 in relation to a person may
state either or both of the following:
(a) that the person must—
(i) live (but not be detained) at a stated approved community
care facility or another stated place; or
(ii) be detained at a stated approved community care facility;
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Community care orders
Part 5.5
Section 70
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(b) that the person must not approach a stated person or stated place
or undertake stated activities.
(2) If the restriction order states that the person must be detained at a
stated approved community care facility, the order may also state
whether the person may be granted leave from the facility.
(3) The ACAT may, on application, grant leave to a person detained at a
stated approved community care facility (whether or not the order
includes a statement about leave).
70 Role of care coordinator—community care order
(1) The care coordinator is responsible for coordinating the provision of
treatment, care or support for a person to whom a community care
order applies.
(2) Within 5 working days after the day the order is made, the care
coordinator must determine, in writing, the times when and the place
where the person is required to attend to receive treatment, care or
support, or undertake a counselling, training, therapeutic or
rehabilitation program, in accordance with the order.
(3) Before making a determination in relation to a person, the care
coordinator—
(a) must take all reasonable steps to consult the following:
(i) the person;
(ii) if the person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility);
(iii) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(iv) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(v) if the person has a carer—the carer;
Chapter 5
Mental health orders
Part 5.5
Community care orders
Section 70
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(vi) if the person has a nominated person—the nominated
person;
(vii) if a health attorney is involved in the treatment, care or
support of the person—the health attorney;
(viii) if the person is a detainee, a person released on parole or
licence, or a person serving a community-based sentence—
the corrections director-general;
(ix) if the person is covered by a bail order that includes a
condition that the person accept supervision under the Bail
Act 1992, section 25 (4) (e) or section 25A—the director-
general responsible for the supervision of the person under
the Bail Act 1992;
(x) if the person is a child covered by a bail order that includes
a condition that the child accept supervision under the Bail
Act 1992, section 26 (2)—the CYP director-general;
(xi) if the person is a young detainee or a young offender
serving a community-based sentence—the CYP
director-general; and
(b) may consult any other service provider the care coordinator
considers relevant; and
(c) must take into account the views of the people consulted under
this section.
(4) After making a determination in relation to a person, the care
coordinator must record whether the person was consulted and—
(a) if the person was consulted—what the person’s views were; or
(b) if the person was not consulted—the reasons why.
(5) The care coordinator must, as soon as practicable after making a
determination, give a copy of the determination to—
(a) the person; and
Mental health orders
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Community care orders
Part 5.5
Section 71
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(b) if the person is a child—each person with parental responsibility
for the child under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility); and
(c) the ACAT; and
(d) the public advocate; and
(e) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian; and
(f) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney; and
(g) if the person has a nominated person—the nominated person;
and
(h) if a health attorney is involved in the treatment, care or support
of the person—the health attorney.
71 Treatment etc to be explained—community care order
(1) Before treatment, care or support is given to a person under a
community care order, the care coordinator must ensure that the
nature and effects (including any side effects) of the treatment, care
or support are explained to the person.
(2) The explanation must be given in a way that the person is most likely
to understand.
Chapter 5
Mental health orders
Part 5.5
Community care orders
Section 72
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72 Action if community care order no longer appropriate—
no longer person in relation to whom ACAT could make
order
(1) This section applies if—
(a) a community care order is in force in relation to a person; and
(b) the care coordinator forms the opinion that—
(i) the person is no longer a person in relation to whom the
ACAT could make a community care order; or
(ii) if a restriction order is also in force in relation to the
person—it is no longer necessary for the restriction order
to be in force.
Note 1 For the criteria for making a community care order, see s 66. For the
criteria for making a restriction order with a community care order, see
s 68.
Note 2 For principles that must be taken into account when exercising a function
under this Act, see s 6.
(2) The care coordinator must give written notice to—
(a) if the person has a carer—the carer; and
(b) if the person has a nominated person—the nominated person.
(3) The notice must—
(a) include the reasons why the care coordinator is satisfied of the
matter mentioned in subsection (1) (b); and
(b) ask whether the carer or nominated person is aware of any other
information that may be relevant to whether the community care
order or restriction order continues to be appropriate for the
person; and
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Community care orders
Part 5.5
Section 72
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(c) state that, subject to consideration of any information given
under paragraph (b), the care coordinator must tell the ACAT
and public advocate of the matter mentioned in
subsection (1) (b) and this will lead to an ACAT review of the
community care order or restriction order; and
(d) tell the carer that the carer is entitled to do either or both of the
following:
(i) make a submission to the ACAT review of the community
care order or restriction order;
(ii) apply to the ACAT to attend the hearing; and
(e) tell the nominated person that the nominated person is entitled
to make a submission to the ACAT review of the community
care order or restriction order.
(4) If, having taken into account any information given under
subsection (3) (b), the care coordinator is still satisfied of the matter
mentioned in subsection (1) (b) the care coordinator must tell the
ACAT and the public advocate in writing about—
(a) the care coordinator’s opinion, including the reasons for the
opinion; and
(b) the details of any information given under subsection (3) (b).
Note The ACAT must review the order within 72 hours after being notified
under this section (see s 79 (3)).
Chapter 5
Mental health orders
Part 5.5
Community care orders
Section 73
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73 Powers in relation to community care order
(1) This section applies if—
(a) a community care order has been made in relation to a person;
and
(b) either—
(i) a restriction order has also been made in relation to the
person requiring the person to be detained at an approved
community care facility; or
(ii) the care coordinator requires the person to be detained at
an approved community care facility under
section 77 (Contravention of mental health order).
(2) The care coordinator may—
(a) detain the person at the facility in the custody that the care
coordinator considers appropriate; and
Note See s 264 (Powers of search and seizure).
(b) subject the person to the minimum confinement or restraint that
is necessary and reasonable to—
(i) prevent the person from causing harm to themself or
someone else; or
(ii) ensure that the person remains in custody under the order;
and
(c) subject the person to involuntary seclusion if satisfied that it is
the only way in the circumstances to prevent the person from
causing harm to themself or someone else.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
Mental health orders
Chapter 5
Community care orders
Part 5.5
Section 73
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(3) If the care coordinator subjects a person to involuntary seclusion, the
care coordinator must ensure that the person is examined by a relevant
doctor of the approved community care facility at least once in each
4-hour period for which the person is in seclusion.
(4) If a community care order made in relation to a person authorises the
giving of medication for the treatment of the person’s mental
disorder, the care coordinator may—
(a) approve the giving by appropriately trained people of
medication prescribed by a doctor in accordance with the order;
and
(b) use, or authorise someone else to use, the force and assistance
that is necessary and reasonable to give the medication (forcible
giving of medication).
(5) If the care coordinator subjects a person to restraint, involuntary
seclusion or the forcible giving of medication, the care coordinator
must—
(a) enter in the person’s record the fact of and reasons for the
restraint, involuntary seclusion or forcible giving of medication;
and
(b) tell the public advocate in writing of the restraint, involuntary
seclusion or forcible giving of medication; and
(c) keep a register of the restraint, involuntary seclusion or forcible
giving of medication.
(6) In this section:
relevant doctor, of an approved community care facility, means a
person employed at the facility as a consultant psychiatrist,
psychiatric registrar in consultation with a consultant psychiatrist or
another doctor in consultation with a consultant psychiatrist.
Chapter 5
Mental health orders
Part 5.6
Limits on communication under mental health orders
Section 74
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Part 5.6 Limits on communication under
mental health orders
74 Limits on communication—mental health order
(1) This section applies if—
(a) a mental health order is made in relation to a person; and
(b) the order states that a limit may be imposed on communication
between the person and other people.
(2) The relevant official for the order may impose a limit on
communication by the person with other people if—
(a) the limit is consistent with the order; and
(b) the relevant official believes on reasonable grounds that the limit
is necessary and reasonable to avoid prejudicing the
effectiveness of the person’s treatment, care or support.
(3) The relevant official must not impose a limit on communication by
the person with someone authorised under a territory law to
communicate with the person.
(4) As soon as practicable after imposing a limit on communication by a
person, the relevant official must explain to the person, in a way the
person is most likely to understand—
(a) the nature of the limit; and
(b) the period for which the limit will be in effect; and
(c) the reason for imposing the limit.
(5) A limit must not be imposed for a period longer than 7 days.
(6) Subsection (5) does not prevent a further limit being imposed
immediately after the limit previously imposed ceases to be in effect.
(7) This section has effect despite part 3.1 (Rights in relation to
information and communication) but subject to section 75.
Mental health orders
Chapter 5
Limits on communication under mental health orders
Part 5.6
Section 75
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75 Offence—limits on communication—mental health order
(1) A relevant official commits an offence if—
(a) the relevant official imposes a limit on communication by a
person subject to a mental health order; and
(b) the relevant official does not ensure that the person has
reasonable access to facilities and adequate opportunity to
contact the public advocate and the person’s lawyer.
Maximum penalty: 20 penalty units.
(2) A relevant official commits an offence if—
(a) the relevant official imposes a limit on communication by a
person subject to a mental health order; and
(b) the public advocate or the person’s lawyer asks the relevant
official to give any reasonable assistance necessary to allow the
public advocate or lawyer to have access to the person; and
(c) the relevant official does not ensure that the assistance is given.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability offence.
Chapter 5
Mental health orders
Part 5.7
Duration, contravention and review of mental health orders
Section 76
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Part 5.7 Duration, contravention and
review of mental health orders
76 Duration of mental health orders
Unless sooner revoked—
(a) a psychiatric treatment order or community care order has effect
for—
(i) 6 months; or
(ii) if a shorter period is stated in the order—the shorter period;
and
(b) a restriction order has effect for—
(i) 3 months; or
(ii) if a shorter period is stated in the order—the shorter period.
77 Contravention of mental health order
(1) This section applies if—
(a) a mental health order is in force in relation to a person; and
(b) the person contravenes the order; and
(c) section 78 (Contravention of mental health order—absconding
from facility) does not apply to the contravention.
Examples—contravention
1 failure to return from leave granted by chief psychiatrist
2 not attending mental health facility for treatment, care or support
(2) The relevant official for the order or a mental health officer may take
action to tell the person that failure to comply with the order may
result in the person being apprehended and taken to an approved
mental health facility or approved community care facility for
treatment, care or support.
Mental health orders
Chapter 5
Duration, contravention and review of mental health orders
Part 5.7
Section 77
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(3) Action under subsection (2) must—
(a) be taken within 7 days of the contravention; and
(b) involve the taking of all reasonable steps to tell the person the
information mentioned in subsection (2).
(4) If the noncompliance continues after the taking of action under
subsection (2), the relevant official or mental health officer may
require the person to be detained at an approved mental health facility
or approved community care facility to ensure compliance with the
order.
Note The chief psychiatrist may make a determination requiring a person to be
taken to a place for treatment, care or support (see s 62 (Role of chief
psychiatrist—psychiatric treatment order)).
(5) A person is taken to have complied with an order after the relevant
official or mental health officer has taken action under subsection (2)
if—
(a) the person consents to receiving treatment at a place other than
an approved mental health facility or approved community care
facility (a facility); and
(b) the relevant official or mental health officer is satisfied that—
(i) the person can be appropriately treated at a place other than
a facility; and
(ii) the other place is a suitable place for the treatment.
Example—other place
the person’s home
(6) If a person is required to be detained under subsection (4), a police
officer, authorised ambulance paramedic, mental health officer or
doctor may apprehend the person and take the person to an approved
mental health facility or approved community care facility.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
Chapter 5
Mental health orders
Part 5.7
Duration, contravention and review of mental health orders
Section 78
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(7) If the relevant official or mental health officer requires the detention
of a person under subsection (4), the relevant official or the mental
health officer must, within 24 hours of the person being detained, tell
the ACAT and the public advocate in writing—
(a) the name of the person detained; and
(b) the reasons for requiring the detention; and
(c) the name and address of the approved mental health facility or
approved community care facility where the person is detained;
and
(d) if the mental health order includes a restriction order that
restricts the place where a person must live—whether the
restriction order has been contravened.
Note The ACAT must review the order within 72 hours after being notified
under this subsection (see s 79 (3)).
78 Contravention of mental health order—absconding from
facility
(1) This section applies if—
(a) a mental health order is in force in relation to a person; and
(b) a restriction order or a determination requires the person to be
detained at an approved mental health facility or approved
community care facility; and
(c) the person absconds from the facility.
(2) A police officer, authorised ambulance paramedic, mental health
officer or doctor may apprehend the person and take the person to an
approved mental health facility or approved community care facility.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
Mental health orders
Chapter 5
Duration, contravention and review of mental health orders
Part 5.7
Section 79
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(3) A police officer, authorised ambulance paramedic, mental health
officer or doctor who apprehends a person under this section must tell
the person the reason for the apprehension.
(4) If a person is detained under this section the relevant official for the
order must, within 12 hours of the person being detained, tell the
ACAT and the public advocate in writing—
(a) the name of the person detained; and
(b) the reasons for requiring the detention; and
(c) the name and address of the approved mental health facility or
approved community care facility where the person is detained.
Note The ACAT must review the order within 72 hours after being notified
under this subsection (see s 79 (3)).
79 Review of mental health order
(1) The ACAT may review a mental health order in force in relation to a
person on its own initiative.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(2) The ACAT must review a mental health order in force in relation to
a person if the person, or the person’s representative, applies for the
review on the basis that the order, or part of the order, is no longer
required.
(3) The ACAT must review each mental health order in force in relation
to a person within 72 hours if the ACAT receives notice in relation to
the person under any of the following:
(a) section 64 (Action if psychiatric treatment order no longer
appropriate—no longer person in relation to whom ACAT could
make order);
Chapter 5
Mental health orders
Part 5.7
Duration, contravention and review of mental health orders
Section 79
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(b) section 72 (Action if community care order no longer
appropriate—no longer person in relation to whom ACAT could
make order);
(c) section 77 (6) (Contravention of mental health order) and the
notice indicates that a restriction order has been contravened;
(d) section 78 (4) (Contravention of mental health order—
absconding from facility).
(4) A review required under subsection (3)—
(a) may be conducted without a hearing; and
(b) may include consulting a person mentioned in section 54 (1)
(Consultation by ACAT—mental health order).
Note If the ACAT holds a hearing for the review, s 188 (1) (Notice of hearing)
does not apply (see s 188 (3)).
(5) If the ACAT is satisfied that a person in relation to whom a
psychiatric treatment order or community care order is in force is no
longer a person in relation to whom the ACAT could make a
psychiatric treatment order or community care order, the ACAT must
revoke all the mental health orders in force in relation to the person.
(6) In any other case, the ACAT may, if appropriate, do any of the
following:
(a) confirm, amend or revoke any of the mental health orders in
force in relation to the person;
(b) make additional mental health orders in relation to the person;
(c) make an assessment order in relation to the person.
Mental health orders
Chapter 5
Duration, contravention and review of mental health orders
Part 5.7
Section 79
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(7) In this section:
representative, of a person, means any of the following:
(a) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(b) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(c) if the person has a nominated person—the nominated person;
(d) a close relative or close friend of the person;
(e) a legal representative of the person.
Chapter 6
Emergency detention
Section 80
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Chapter 6 Emergency detention
80 Apprehension
(1) A police officer or authorised ambulance paramedic may apprehend
a person if the police officer or paramedic believes on reasonable
grounds that—
(a) the person has a mental disorder or mental illness; and
(b) the person has attempted or is likely to attempt—
(i) suicide; or
(ii) to inflict serious harm on the person or another person; and
(c) the person—
(i) requires an immediate examination by a doctor; and
(ii) does not agree to be examined immediately.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(2) In forming a belief about a person for subsection (1), a police officer
or authorised ambulance paramedic is not required to make a medical
assessment or clinical judgement about the person.
(3) A person apprehended under subsection (1) may be taken to an
approved mental health facility by—
(a) the police officer or authorised ambulance paramedic who
apprehended the person; or
(b) at the request of the police officer or authorised ambulance
paramedic who apprehended the person—another police officer
or authorised ambulance paramedic.
Emergency detention
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Section 80
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(4) A doctor or mental health officer may apprehend a person if the
doctor or mental health officer believes on reasonable grounds that—
(a) the person has a mental disorder or mental illness; and
(b) either—
(i) the person requires immediate treatment, care or support;
or
(ii) the person’s condition will deteriorate within 3 days to
such an extent that the person would require immediate
treatment, care or support; and
(c) the person has refused to receive that treatment, care or support;
and
(d) detention is necessary for the person’s health or safety, social or
financial wellbeing, or for the protection of someone else or the
public; and
(e) adequate treatment, care or support cannot be provided in a less
restrictive environment.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(5) A person apprehended under subsection (4) may be taken to an
approved mental health facility by—
(a) the doctor or mental health officer who apprehended the person;
or
(b) at the request of the doctor or mental health officer who
apprehended the person—
(i) another doctor or mental health officer; or
(ii) a police officer; or
(iii) an authorised ambulance paramedic.
Chapter 6
Emergency detention
Section 81
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(6) The ACAT must, on application, review the following decisions
within 2 working days after the day the application is made:
(a) a decision of a police officer or authorised ambulance paramedic
under subsection (1);
(b) a decision of a doctor or mental health officer under
subsection (4) (b) (ii).
81 Detention at approved mental health facility
(1) If a person is taken to an approved mental health facility under
section 80 or the Crimes Act, section 309 (1) (a) (Assessment whether
emergency detention required), the person in charge of the facility
must detain the person at the facility.
(2) If a doctor or mental health officer believes on reasonable grounds
that a person attending an approved mental health facility (voluntarily
or otherwise) is a person to whom section 80 (4) (a) to (e) applies, the
doctor or mental health officer may detain the person at the facility.
(3) While a person is detained at a facility under subsection (1) or (2), the
person in charge of the facility may—
(a) keep the person in the custody that the person in charge
considers appropriate; and
(b) subject the person to the minimum confinement or restraint that
is necessary and reasonable to—
(i) prevent the person from causing harm to themself or
someone else; or
(ii) ensure that the person remains in custody.
Emergency detention
Chapter 6
Section 82
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82 Copy of court order
A police officer or corrections officer who takes an accused person to
an approved mental health facility for examination under the Crimes
Act, section 309 (1) (a) must give the person in charge of the facility
a copy of the court order made under that section.
83 Statement of action taken
(1) A police officer, authorised ambulance paramedic, doctor or mental
health officer who takes a person to an approved mental health facility
under section 80 must give the person in charge of the facility a
written statement containing a description of the action taken under
that section, including the following:
(a) the name and address (if known) of the person taken to the
facility;
(b) the date and time when the person was taken to the facility;
(c) detailed reasons for taking the action;
(d) the nature and extent of the force or assistance used to enter any
premises, or to apprehend the person and take the person to the
facility;
(e) the nature and extent of any restraint, involuntary seclusion or
forcible giving of medication used when apprehending the
person or taking the person to the facility;
(f) anything else that happened when the person was being
apprehended and taken to the facility that may have an effect on
the person’s physical or mental health.
Examples—par (f)
1 the person was subject to threats of violence from another person
2 a package of white powder fell out of the person’s pocket
3 the person was in an agitated state and hit their head against the side of
the transport vehicle
Chapter 6
Emergency detention
Section 84
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(2) The person in charge of the approved mental health facility must—
(a) enter the statement in the person’s record; and
(b) tell the public advocate in writing of any restraint, involuntary
seclusion or forcible giving of medication included in the
statement; and
(c) keep a register of any restraint, involuntary seclusion or forcible
giving of medication included in the statement.
84 Initial examination at approved mental health facility
(1) This section applies to a person (the subject person) detained at an
approved mental health facility under section 81.
(2) The person in charge of the approved mental health facility must
ensure that a relevant doctor conducts an initial examination of the
subject person within 4 hours after—
(a) for a person detained under section 81 (1)—arriving at the
facility; or
(b) for a person detained under section 81 (2)—being detained at
the facility.
(3) However, the person in charge of the facility may continue to detain
the subject person if the person believes on reasonable grounds that,
if the subject person is released without an initial examination—
(a) the subject person’s health or safety would be, or be likely to be,
substantially at risk; or
(b) the subject person would do, or be likely to do, serious harm to
others; or
(c) the subject person would seriously endanger, or be likely to
seriously endanger, public safety.
Emergency detention
Chapter 6
Section 84
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(4) If the subject person continues to be detained under subsection (3)—
(a) the person in charge of the approved mental health facility must
immediately tell the chief psychiatrist that the subject person has
been at the facility for 4 hours without an initial examination;
and
(b) the chief psychiatrist must arrange for an initial examination of
the subject person to be conducted as soon as possible and
within 2 hours of being told about the detention.
(5) If the subject person is not given an initial examination within the
time required under subsection (4) (b), the person in charge of the
approved mental health facility must—
(a) release the subject person; or
(b) if the subject person was taken to the approved mental health
facility under the Crimes Act, section 309 (1) (a) (Assessment
whether emergency detention required)—release the person into
the custody of a police officer; or
(c) if a court order requires the subject person to be detained at a
correctional centre—release the subject person into the custody
of the corrections director-general; or
(d) if a court order requires the subject person to be detained at a
detention place—release the subject person into the custody of
the CYP director-general.
(6) The person in charge of the approved mental health facility must tell
the public advocate, in writing, about any failure to give a subject
person an initial examination within the time required under
subsection (2) or (4) (b) and the reasons for the failure.
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Section 85
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(7) In this section:
initial examination means—
(a) examining the subject person in person; and
(b) considering the observations arising from the examination; and
(c) considering any other reliable and relevant information about
the subject person’s condition.
relevant doctor, of an approved mental health facility, means a person
employed at the facility as a consultant psychiatrist, a psychiatric
registrar in consultation with a consultant psychiatrist or another
doctor in consultation with a consultant psychiatrist.
85 Authorisation of involuntary detention
(1) A doctor may authorise the involuntary detention and treatment, care
or support of a person at an approved mental health facility for a
period not exceeding 3 days if—
(a) the doctor has conducted an initial examination of the person
under section 84 and, on the basis of that examination and any
other information the doctor is given, has reasonable grounds for
believing that—
(i) the person requires immediate treatment, care or support;
and
(ii) the person has refused to receive that treatment, care or
support; and
(iii) detention is necessary for the person’s health or safety,
social or financial wellbeing, or for the protection of
someone else or the public; and
(iv) adequate treatment, care or support cannot be provided in
a less restrictive environment; and
Emergency detention
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Section 86
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(b) another doctor has also examined the person and, on the basis of
that examination and any other information the doctor is given,
also has reasonable grounds for believing the matters mentioned
in paragraph (a) (i) to (iv).
(2) Before the end of the 3-day period of detention, the chief psychiatrist
may apply to the ACAT to extend the period of detention if the chief
psychiatrist believes on reasonable grounds that the person continues
to meet the criteria mentioned in subsection (1) (a) (i) to (iv).
(3) If an application is made under subsection (2), the ACAT may order
that the period of detention be extended by the period, not longer than
11 days, stated in the order.
(4) A person may apply to the ACAT for the review of involuntary
detention under this section.
(5) If an application is made under subsection (4), the ACAT must
conduct the review within 2 working days after the day the
application is made.
(6) The ACAT may consider an application under subsection (2) or (4)
without holding a hearing.
Note If the ACAT holds a hearing for the application, s 188 (1) (Notice of
hearing) does not apply (see s 188 (3)).
86 Medical examination of detained person
(1) The person in charge of an approved mental health facility must
ensure that a person detained at the facility under section 85 (1) is
given—
(a) a thorough physical examination by a doctor; and
(b) a thorough psychiatric examination by a person employed at the
facility as a consultant psychiatrist, a psychiatric registrar in
consultation with a consultant psychiatrist or another doctor in
consultation with a consultant psychiatrist.
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Emergency detention
Section 87
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(2) The examination must, as far as reasonably practicable, be conducted
within 24 hours of the person being detained at the mental health
facility.
(3) The examination must not be conducted by a doctor who conducted
the initial examination of the person under section 84.
(4) However, a thorough examination mentioned in subsection (1) (a)
or (b) is not required if the chief psychiatrist is satisfied on reasonable
grounds that—
(a) a doctor or psychiatrist recently gave the person such an
examination; and
(b) the examination provides sufficient relevant information about
the current physical or psychiatric condition of the person.
87 Notification of Magistrates Court about emergency
detention or release from emergency detention
(1) The person in charge of an approved mental health facility must—
(a) notify the Magistrates Court of the results of an examination
conducted by a doctor under an order under the Crimes Act,
section 309 (1); and
(b) if, after examination by the doctor—
(i) the person is to be detained for treatment, care or support—
ensure that the person is detained for the purposes of
receiving that treatment, care or support; or
(ii) the person is not to be detained for treatment, care or
support, or is to be released after being detained—release
the person into the custody of a police officer.
(2) If the person is detained at the facility under section 81 or section 85,
the person in charge of the facility must notify the court of the reasons
for the detention.
Emergency detention
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Section 88
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88 Treatment during detention
(1) While a person is detained at a mental health facility under section 85,
the person in charge of the facility—
(a) may keep the person in the custody that the person in charge
considers appropriate; and
(b) may subject the person to the minimum confinement or restraint
that is necessary and reasonable to—
(i) prevent the person from causing harm to themself or
someone else; or
(ii) ensure that the person remains in custody; and
(c) may subject the person to involuntary seclusion if satisfied that
it is the only way in the circumstances to prevent the person from
causing harm to themself or someone else; and
(d) must ensure that any treatment, care or support administered to
the person is the minimum necessary to prevent any immediate
and substantial risk of the person detained causing harm to
themself or someone else.
Note Special provisions apply for the emergency administration of
electroconvulsive therapy (see s 160).
(2) Subsection (1) (c) does not apply if a person has a mental illness for
which, in the opinion of a psychiatrist, the most appropriate treatment
is long acting medication.
(3) In deciding whether to administer long acting medication, the
psychiatrist must take into account the likely deterioration in the
person’s condition within 3 days after the psychiatrist’s examination
of the person.
Chapter 6
Emergency detention
Section 89
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(4) If a doctor believes on reasonable grounds that the detained person
should be given medication for the treatment of the person’s mental
disorder or mental illness, the doctor may—
(a) approve the giving by appropriately trained people of
medication prescribed by or under the authority of the doctor;
and
(b) use, or authorise someone else to use, the force and assistance
that is necessary and reasonable to give the medication (forcible
giving of medication).
(5) If the detained person is subjected to confinement, restraint,
involuntary seclusion or forcible giving of medication, the person in
charge of the facility must—
(a) enter in the detained person’s record the fact of and the reasons
for the confinement, restraint, involuntary seclusion or forcible
giving of medication; and
(b) tell the public advocate in writing of the restraint, involuntary
seclusion or forcible giving of medication; and
(c) keep a register of the restraint, involuntary seclusion or forcible
giving of medication.
89 Notification of certain people about detention
(1) A doctor must, within 12 hours after authorising the involuntary
detention of a person under section 85, give the required information
about the detention to the public advocate and the ACAT.
Maximum penalty: 5 penalty units.
Emergency detention
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Section 89
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(2) A doctor or mental health officer must also, as soon as practicable
after authorising the involuntary detention of a person under
section 81 or section 85, take all reasonable steps to give the required
information about the detention to the following:
(a) if the person is a child—each person with parental responsibility
for the child under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility);
(b) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(c) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(d) if the person has a nominated person—the nominated person;
(e) if a health attorney is involved in the treatment, care or support
of the person—the health attorney.
Maximum penalty: 5 penalty units.
(3) The ACAT must, as soon as practicable after ordering under
section 85 (3) that a period of detention be extended, take all
reasonable steps to give the required information about the detention
to the people mentioned in subsection (2) (a) to (e).
(4) Subsection (5) applies if, despite the doctor, mental health officer or
ACAT taking all reasonable steps to give the required information
about the detention under subsection (2) or (3), any of the following
circumstances happens:
(a) the required information is not given to anyone;
(b) the detained person is a child and the required information is not
given to a person with parental responsibility for the child;
(c) the detained person is an adult who has a guardian under the
Guardianship and Management of Property Act 1991 and the
required information is not given to the guardian;
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Emergency detention
Section 90
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(d) the detained person has an enduring power of attorney under the
Powers of Attorney Act 2006, and appears to have impaired
decision-making capacity within the meaning of that Act, and
the required information is not given to the attorney.
(5) The doctor, mental health officer or ACAT must tell the public
advocate—
(a) of the circumstance mentioned in subsection (4); and
(b) for subsection (4) (b), (c) or (d)—who (if anyone) the required
information about the detention was given to.
(6) The person in charge of a mental health facility where a person is
detained under section 81 or section 85 must ensure that the person
has adequate opportunity and assistance to notify a relative or friend
of the person’s detention.
(7) In this section:
required information about the detention of a person means—
(a) the person’s name; and
(b) the reasons for authorising the detention; and
(c) the name and address of the approved mental health facility
where the person is being detained.
90 Offence—communication during detention
(1) A person commits an offence if—
(a) the person is in charge of a mental health facility; and
(b) a person (the detained person) is detained at the facility; and
Emergency detention
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(c) the person does not ensure that, during the detention, the
detained person has reasonable access to facilities, and adequate
opportunity, to contact the public advocate and the detained
person’s lawyer.
Maximum penalty: 20 penalty units.
(2) A person commits an offence if—
(a) the person is in charge of a mental health facility; and
(b) a person (the detained person) is detained at the facility; and
(c) the public advocate or the detained person’s lawyer asks the
person to give any reasonable assistance necessary to allow the
public advocate or lawyer to have access to the detained person;
and
(d) the person does not ensure that the assistance is given.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability offence.
91 Order for release
(1) If a relevant entity is satisfied that the detention of a person under
section 85 is no longer justified, the entity must, as soon as
practicable, order the release of the person before the period of
detention authorised under that subsection expires.
(2) However, if the person detained under section 85 is an accused person
to whom an order under the Crimes Act, section 309 (1) (Assessment
whether emergency detention required) applies, the relevant entity
must, as soon as practicable, notify the person in charge of an
approved mental health facility if satisfied that the detention of the
person is no longer justified.
Chapter 6
Emergency detention
Section 92
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(3) In this section:
relevant entity means—
(a) a doctor who examined the person under section 86; or
(b) the chief psychiatrist; or
(c) the ACAT.
92 Duty to release
(1) A person in charge of an approved mental health facility must ensure
that a person detained at the facility under section 85—
(a) is released in accordance with an order under section 91; or
(b) if no order under section 91 is made and subject to any other
order of the ACAT—is released at the end of the period of
detention authorised under section 85.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) If the person in charge of an approved mental health facility is notified
under section 91 (2), the person must, as soon as practicable,
discharge the person to whom the notification relates into the custody
of a police officer.
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Preliminary
Division 7.1.1
Section 93
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Chapter 7 Forensic mental health
Part 7.1 Forensic mental health orders
Division 7.1.1 Preliminary
93 Definitions—pt 7.1
In this part:
relevant official, for a forensic mental health order, means—
(a) for a forensic psychiatric treatment order—the chief
psychiatrist; or
(b) for a forensic community care order—the care coordinator.
relevant person, for a forensic mental health order application
means—
(a) for a forensic psychiatric treatment order—the chief
psychiatrist; and
(b) for a forensic community care order—a person who can make
the statement required under section 94 (3) (a) for the
application.
Division 7.1.2 Application for forensic mental health
orders
94 Applications for forensic mental health orders—detainees
etc
(1) This section applies to any of the following (a subject person):
(a) a detainee;
(b) a person serving a community-based sentence;
(c) a person released on parole;
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.2
Application for forensic mental health orders
Section 95
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(d) a person released on licence under the Crimes (Sentence
Administration) Act 2005, section 299;
(e) a young detainee;
(f) a young offender;
(g) a person covered by a bail order that includes a condition that
the person accept supervision under the Bail Act 1992,
section 25 (4) (e), section 25A or section 26 (2).
(2) A relevant person may apply to the ACAT for a forensic mental health
order in relation to a subject person if the relevant person believes on
reasonable grounds that the subject person is a person in relation to
whom the ACAT could reasonably make an order under section 101
(Forensic psychiatric treatment order) or section 108 (Forensic
community care order).
(3) The application must include—
(a) a written statement by the relevant person addressing the criteria
the ACAT must consider in making an order under section 101
(Forensic psychiatric treatment order) or section 108 (Forensic
community care order); and
(b) a plan setting out the proposed treatment, care or support of the
subject person.
95 Relevant person to tell ACAT of risks
(1) This section applies if—
(a) a relevant person applies to the ACAT for a forensic mental
health order for a person; and
(b) the relevant person believes on reasonable grounds that anything
to do with the application process is likely to substantially
increase—
(i) the risk to the person’s health or safety; or
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Making forensic mental health orders—preliminary matters
Division 7.1.3
Section 96
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(ii) the risk of serious harm to others.
(2) The application must state—
(a) the relevant person’s belief about the substantially increased
risk; and
(b) the basis for the belief.
Division 7.1.3 Making forensic mental health
orders—preliminary matters
96 ACAT must consider assessment—forensic mental health
order
(1) Before making a forensic mental health order in relation to a person,
the ACAT must consider—
(a) an assessment of the person conducted under an assessment
order; or
(b) another assessment of the person that the ACAT considers
appropriate.
(2) In considering an assessment, the ACAT must take into account how
recently the assessment was conducted.
97 Consultation by ACAT—forensic mental health order
Before making a forensic mental health order in relation to a person,
the ACAT must, as far as practicable, consult—
(a) if the person is a child—each person with parental responsibility
for the child under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility); and
(b) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian; and
(c) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney; and
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.3
Making forensic mental health orders—preliminary matters
Section 98
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(d) if the person has a nominated person—the nominated person;
and
(e) if a health attorney is involved in the treatment care or support
of the person—the health attorney; and
(f) if the chief psychiatrist or care-coordinator is likely to be
responsible for providing the treatment, care or support
proposed to be ordered—the chief psychiatrist or
care-coordinator; and
(g) if the person is a detainee, a person serving a community-based
sentence, a person released on parole, or a person released on
licence under the Crimes (Sentence Administration) Act 2005,
section 299—the corrections director-general and the
director-general responsible for the Crimes (Sentence
Administration) Act 2005; and
(h) if the person is a young detainee or a young offender serving a
community-based sentence—the CYP director-general.
98 ACAT must hold hearing—forensic mental health order
Before making a forensic mental health order in relation to a person,
the ACAT must hold a hearing into the matter.
99 What ACAT must take into account—forensic mental
health order
(1) In making a forensic mental health order in relation to a person, the
ACAT must take into account the following:
(a) a plan for the proposed treatment, care or support of the person,
mentioned in section 94 (3);
(b) the views and wishes of the person, so far as they can be found
out;
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Making forensic mental health orders—preliminary matters
Division 7.1.3
Section 99
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(c) if an advance agreement or advance consent direction is in force
in relation to the person—the person’s wishes in relation to the
person’s treatment, care or support stated in the agreement or
direction;
(d) the views of the people responsible for the day-to-day care of
the person, so far as those views are made known to the ACAT;
(e) the views of each person appearing at the proceeding;
(f) if the proceeding is on a forensic mental health order for which
there is a registered affected person for an offence committed or
alleged to have been committed by the person—any statement
by the registered affected person;
(g) the views of each person consulted under section 97
(Consultation by ACAT—forensic mental health order);
(h) that any restrictions placed on the person should be the
minimum necessary for the safe and effective care of the person
and protection of public safety;
(i) any alternative treatment, care or support available, including—
(i) the purpose of the treatment, care or support; and
(ii) the benefits likely to be derived by the person from the
treatment, care or support; and
(iii) the distress, discomfort, risks, side effects or other
disadvantages associated with the treatment, care or
support;
(j) any relevant medical history of the person;
(k) for a person required by a court to submit to the jurisdiction of
the ACAT under the Crimes Act, part 13 or the Crimes Act 1914
(Cwlth), part 1B—
(i) the nature and circumstances of the alleged offence or the
offence in relation to which the person is charged; and
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.3
Making forensic mental health orders—preliminary matters
Section 100
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(ii) the nature and extent of the person’s mental illness or
mental disorder and the effect it is likely to have on the
person’s behaviour in the future; and
(iii) whether, if the person is not detained—
(A) the person’s health or safety is, or is likely to be,
substantially at risk; or
(B) the person is likely to do serious harm to others;
(l) if the proceeding is on a forensic mental health order for which
there is a registered affected person for the offence committed
or alleged to have been committed by the subject person—the
views of the victims of crime commissioner;
(m) anything else prescribed by regulation.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(2) Before the ACAT makes a forensic mental health order for the
provision of particular treatment, care or support at a stated facility or
by a stated person, the ACAT must be satisfied that the treatment,
care or support can be provided at the stated facility or by the stated
person.
(3) The ACAT may ask the relevant person to provide information on the
options that the relevant person considers are appropriate for the
provision of particular treatment, care or support under the proposed
forensic mental health order.
(4) The relevant person must respond to the ACAT within 7 days after
receiving a request under subsection (3), or any longer time allowed
by the ACAT.
100 ACAT must not order particular treatment, care or
support—forensic mental health order
In making a forensic mental health order in relation to a person, the
ACAT must not order a particular form of treatment, care or support.
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Forensic psychiatric treatment orders
Division 7.1.4
Section 101
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Division 7.1.4 Forensic psychiatric treatment orders
101 Forensic psychiatric treatment order
(1) This section applies to—
(a) a detainee or a person serving a community-based sentence
assessed under an assessment order; or
(b) a person referred to the ACAT for a forensic mental health order
under division 7.1.2; or
(c) a person required by a court to submit to the jurisdiction of the
ACAT under the Crimes Act, part 13 or the Crimes Act 1914
(Cwlth), part 1B.
(2) The ACAT may make a forensic psychiatric treatment order in
relation to the person if—
(a) the person has a mental illness; and
(b) the ACAT believes on reasonable grounds that, because of the
mental illness, the person—
(i) is doing, or is likely to do, serious harm to themself or
someone else; or
(ii) is suffering, or is likely to suffer, serious mental or physical
deterioration; and
(c) the ACAT believes on reasonable grounds that, because of the
mental illness, the person has seriously endangered, is seriously
endangering, or is likely to seriously endanger, public safety;
and
(d) the ACAT is satisfied that psychiatric treatment, care or support
is likely to—
(i) reduce the harm, deterioration or endangerment, or the
likelihood of harm, deterioration or endangerment,
mentioned in paragraph (b) or (c); or
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.4
Forensic psychiatric treatment orders
Section 102
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(ii) result in an improvement in the person’s psychiatric
condition; and
(e) the ACAT is satisfied that, in the circumstances, a mental health
order should not be made; and
Note For the making of a mental health order see ch 5.
(f) the ACAT is satisfied that the treatment, care or support to be
provided under the forensic psychiatric treatment order cannot
be adequately provided in another way that would involve less
restriction of the freedom of choice and movement of the person.
(3) In making a forensic psychiatric treatment order in relation to a
person, the ACAT is not required to take into account the person’s
decision-making capacity.
102 Content of forensic psychiatric treatment order
(1) A forensic psychiatric treatment order made in relation to a person
may state 1 or more of the following:
(a) an approved mental health facility to which the person may be
taken;
(b) that the person must do either or both of the following:
(i) undergo psychiatric treatment, care or support, other than
electroconvulsive therapy or psychiatric surgery;
(ii) undertake a counselling, training, therapeutic or
rehabilitation program;
(c) that limits may be imposed on communication between the
person and other people;
(d) that the person must—
(i) live (but not be detained) at a stated place; or
(ii) be detained at a stated approved mental health facility;
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Forensic psychiatric treatment orders
Division 7.1.4
Section 103
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(e) that the person must not approach a stated person or stated place
or undertake stated activities.
(2) A forensic psychiatric treatment order made in relation to a person
must—
(a) state that the person must comply with any determination made
under section 103 (Role of chief psychiatrist—forensic
psychiatric treatment order); and
(b) be accompanied by a statement about how the person meets the
criteria under section 101 (2) (Forensic psychiatric treatment
order).
103 Role of chief psychiatrist—forensic psychiatric treatment
order
(1) The chief psychiatrist is responsible for the treatment, care or support
of a person in relation to whom a forensic psychiatric treatment order
is in force.
(2) Within 5 working days after the day the order is made, the chief
psychiatrist must determine, in writing—
(a) whether the person requires admission to an approved mental
health facility to receive treatment, care or support under the
order and, if so, whether the person can be given leave from the
facility; and
(b) for a person living in the community—the times when and the
place where the person is required to attend to receive treatment,
care or support, in accordance with the order; and
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.4
Forensic psychiatric treatment orders
Section 103
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(c) the nature of the psychiatric treatment, care or support to be
given to the person.
Note The power to make an instrument includes the power to amend or repeal
the instrument (see Legislation Act, s 46).
(3) If the chief psychiatrist forms a belief on reasonable grounds that a
person subject to a forensic psychiatric treatment order who is living
in the community requires admission to an approved mental health
facility to receive treatment, care or support under the order, the chief
psychiatrist may determine, in writing—
(a) the approved mental health facility that the person is to be
admitted to; and
(b) the nature of the psychiatric treatment to be given to the person;
and
(c) whether the person can be given leave from the facility.
(4) For subsection (2) (b) or (3) (c), the chief psychiatrist must not
determine psychiatric treatment, care or support that has, or is likely
to have, the effect of subjecting the person to whom it is given to
undue stress or deprivation, having regard to the benefit likely to
result from the treatment, care or support.
(5) The chief psychiatrist must also determine, in writing, the place
where the person must live if—
(a) the forensic psychiatric treatment order does not state that the
person live at a stated place; and
(b) the chief psychiatrist considers that the person should live at a
place other than the place where the person usually lives.
(6) Before making a determination in relation to a person, the chief
psychiatrist must—
(a) take all reasonable steps to consult the following:
(i) the person;
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Part 7.1
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(ii) if the person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility);
(iii) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(iv) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(v) if the person has a nominated person—the nominated
person;
(vi) if a health attorney is involved in the treatment, care or
support of the person—the health attorney;
(vii) if the person is a detainee, a person released on parole or
licence, or a person serving a community-based sentence—
the corrections director-general;
(viii) if the person is covered by a bail order that includes a
condition that the person accept supervision under the Bail
Act 1992, section 25 (4) (e) or section 25A—the
director-general responsible for the supervision of the
person under the Bail Act 1992;
(ix) if the person is a child covered by a bail order that includes
a condition that the child accept supervision under the Bail
Act 1992, section 26 (2)—the CYP director-general;
(x) if the person is a young detainee or a young offender
serving a community-based sentence—the CYP
director-general; and
(b) take into account the views of the people consulted under this
section.
(7) After making a determination in relation to a person, the chief
psychiatrist must record whether the person was consulted and—
(a) if the person was consulted—what the person’s views were; or
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Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.4
Forensic psychiatric treatment orders
Section 104
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(b) if the person was not consulted—the reasons why.
(8) The chief psychiatrist must, as soon as practicable after making a
determination, give a copy of the determination to—
(a) the people mentioned in subsection (6) (a); and
(b) the ACAT; and
(c) the public advocate.
104 Treatment etc to be explained—forensic psychiatric
treatment order
(1) Before treatment, care or support is given to a person under a forensic
psychiatric treatment order, the chief psychiatrist must explain to the
person the nature and effects (including any side effects) of the
treatment, care or support.
(2) The explanation must be given in a way that the person is most likely
to understand.
105 Action if forensic psychiatric treatment order no longer
appropriate—no longer person in relation to whom ACAT
could make order
(1) This section applies if—
(a) a forensic psychiatric treatment order is in force in relation to a
person; and
(b) the chief psychiatrist forms the opinion that the person is no
longer a person in relation to whom the ACAT could make a
forensic psychiatric treatment order.
Note 1 For the criteria for making a forensic psychiatric treatment order,
see s 101.
Note 2 For principles that must be taken into account when exercising a
function under this Act, see s 6.
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Forensic mental health orders
Part 7.1
Forensic psychiatric treatment orders
Division 7.1.4
Section 105
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(2) The chief psychiatrist must give written notice to the following
(the notified people):
(a) if the person has a carer—the carer;
(b) if the person has a nominated person—the nominated person;
(c) if the person is covered by a bail order that includes a condition
that the person accept supervision under the Bail Act 1992,
section 25 (4) (e), section 25A or section 26 (2)—the
director-general responsible for the supervision of the person
under the Bail Act 1992;
(d) if the person is a detainee, a person on parole or licence, or a
person serving a community-based sentence—the corrections
director-general;
(e) if the person is a young detainee or a young offender serving a
community-based sentence—the CYP director-general;
(f) if the person is a child—each person with parental responsibility
for the person under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility).
(3) The notice must—
(a) include the reasons why the chief psychiatrist is satisfied of the
matter mentioned in subsection (1) (b); and
(b) ask whether the notified people are aware of any other
information that may be relevant to whether the forensic
psychiatric treatment order continues to be appropriate for the
person; and
(c) state that, subject to consideration of any information given
under paragraph (b), the chief psychiatrist must tell the ACAT
and public advocate of the matter mentioned in
subsection (1) (b) and this will lead to an ACAT review of the
forensic psychiatric treatment order; and
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.4
Forensic psychiatric treatment orders
Section 106
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(d) tell the carer that the carer is entitled to do either or both of the
following:
(i) make a submission to the ACAT review of the forensic
psychiatric treatment order;
(ii) apply to the ACAT to attend the hearing; and
(e) tell the other notified people that they are entitled to make a
submission to the ACAT review of the forensic psychiatric
treatment order.
(4) If, having taken into account any information given under
subsection (3) (b), the chief psychiatrist is still satisfied of the matter
mentioned in subsection (1) (b) the chief psychiatrist must tell the
ACAT and the public advocate in writing about—
(a) the chief psychiatrist’s opinion, including the reasons for the
opinion; and
(b) the details of any information given under subsection (3) (b).
Note The ACAT must review the order within 10 days after being notified
under this section (see s 126 (3)).
106 Action if forensic psychiatric treatment order no longer
appropriate—no longer necessary to detain person
(1) This section applies if—
(a) a forensic psychiatric treatment order is in force in relation to a
person; and
(b) the forensic psychiatric treatment order requires the person to be
detained at an approved mental health facility; and
(c) the chief psychiatrist forms the opinion that it is no longer
necessary for the person to be detained.
Forensic mental health
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Part 7.1
Forensic psychiatric treatment orders
Division 7.1.4
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(2) The chief psychiatrist must give written notice to the following
(the notified people):
(a) if the person has a carer—the carer;
(b) if the person has a nominated person—the nominated person;
(c) if the person is covered by a bail order that includes a condition
that the person accept supervision under the Bail Act 1992,
section 25 (4) (e), section 25A or section 26 (2)—the
director-general responsible for the supervision of the person
under the Bail Act 1992;
(d) if the person is a detainee, a person on parole or licence, or a
person serving a community-based sentence—the corrections
director-general;
(e) if the person is a young detainee or a young offender serving a
community-based sentence—the CYP director-general;
(f) if the person is a child—each person with parental responsibility
for the person under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility).
(3) The notice must—
(a) include the reasons why the chief psychiatrist is satisfied of the
matter mentioned in subsection (1) (c); and
(b) ask whether the notified people are aware of any other
information that may be relevant to whether the detention under
the forensic psychiatric treatment order continues to be
appropriate for the person; and
(c) state that, subject to consideration of any information given
under paragraph (b), the chief psychiatrist must tell the ACAT
and public advocate of the matter mentioned in
subsection (1) (c) and this will lead to an ACAT review of the
detention under forensic psychiatric treatment order; and
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.4
Forensic psychiatric treatment orders
Section 107
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(d) tell the carer that the carer is entitled to do either or both of the
following:
(i) make a submission to the ACAT review of the forensic
psychiatric treatment order;
(ii) apply to the ACAT to attend the hearing; and
(e) tell the other notified people that they are entitled to make a
submission to the ACAT review of the forensic psychiatric
treatment order.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(4) If, having taken into account any information given under
subsection (3) (b), the chief psychiatrist is still satisfied of the matter
mentioned in subsection (1) (c) the chief psychiatrist must tell the
ACAT and the public advocate in writing about—
(a) the chief psychiatrist’s opinion, including the reasons for the
opinion; and
(b) the details of any information given under subsection (3) (b).
Note The ACAT must review the order within 10 days after being notified
under this section (see s 126 (3)).
107 Powers in relation to forensic psychiatric treatment order
(1) This section applies if—
(a) a forensic psychiatric treatment order has been made in relation
to a person; and
(b) either—
(i) the order requires the person to be detained at an approved
mental health facility; or
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Part 7.1
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(ii) the chief psychiatrist has made a determination under
section 103 (Role of chief psychiatrist—forensic
psychiatric treatment order) requiring detention at an
approved mental health facility.
(2) The chief psychiatrist may—
(a) detain the person at an approved mental health facility; and
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers
of search and seizure).
(b) subject the person to the minimum confinement or restraint that
is necessary and reasonable to—
(i) prevent the person from causing harm to themself or
someone else; or
(ii) ensure that the person remains in custody under the order;
and
(c) subject the person to involuntary seclusion if satisfied that it is
the only way in the circumstances to prevent the person from
causing harm to themself or someone else; and
(d) determine that the person can be given leave from the facility.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(3) If the chief psychiatrist subjects a person to involuntary seclusion, the
chief psychiatrist must ensure that the person is examined by a
relevant doctor of the approved mental health facility at least once in
each 4-hour period for which the person is in seclusion.
(4) If the chief psychiatrist determines that a person be given medication
for the treatment of the person’s mental illness, the chief psychiatrist
may—
(a) approve the giving by appropriately trained people of
medication prescribed by a doctor in accordance with the chief
psychiatrist’s determination; and
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Part 7.1
Forensic mental health orders
Division 7.1.5
Forensic community care orders
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(b) use, or authorise someone else to use, the force and assistance
that is necessary and reasonable to give the medication (forcible
giving of medication).
(5) If the chief psychiatrist subjects a person to restraint, involuntary
seclusion or forcible giving of medication, the chief psychiatrist
must—
(a) enter in the person’s record the fact of and the reasons for the
restraint, involuntary seclusion or forcible giving of medication;
and
(b) tell the public advocate in writing of the restraint, involuntary
seclusion or forcible giving of medication; and
(c) keep a register of the restraint, involuntary seclusion or forcible
giving of medication.
(6) In this section:
relevant doctor, of a relevant place, means a person employed at the
place as a consultant psychiatrist, psychiatric registrar in consultation
with a consultant psychiatrist or another doctor in consultation with a
consultant psychiatrist.
Division 7.1.5 Forensic community care orders
108 Forensic community care order
(1) This section applies to—
(a) a detainee or person serving a community-based sentence
assessed under an assessment order; or
(b) a person referred to the ACAT for a forensic mental health order
under division 7.1.2; or
(c) a person required by a court to submit to the jurisdiction of the
ACAT under the Crimes Act, part 13 or the Crimes Act 1914
(Cwlth), part 1B.
Forensic mental health
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Forensic mental health orders
Part 7.1
Forensic community care orders
Division 7.1.5
Section 108
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(2) The ACAT may make a forensic community care order in relation to
the person if—
(a) the person has a mental disorder; and
(b) the ACAT believes on reasonable grounds that, because of the
mental disorder, the person—
(i) is doing, or is likely to do, serious harm to themself or
someone else; or
(ii) is suffering, or is likely to suffer, serious mental or physical
deterioration; and
(c) the ACAT believes on reasonable grounds that, because of the
mental disorder, the person has seriously endangered, is
seriously endangering, or is likely to seriously endanger, public
safety; and
(d) the ACAT is satisfied that treatment, care or support is likely to
reduce the harm, deterioration or endangerment, or the
likelihood of harm deterioration or endangerment, mentioned in
paragraph (b) or (c); and
(e) the ACAT is satisfied that, in the circumstances, a forensic
psychiatric treatment order should not be made; and
(f) the ACAT is satisfied that, in the circumstances, a mental health
order should not be made; and
(g) the ACAT is satisfied that the treatment, care or support to be
provided under the forensic community care order cannot be
adequately provided in another way that would involve less
restriction of the freedom of choice and movement of the person.
(3) In making a forensic community care order in relation to a person, the
ACAT is not required to take into account the person’s
decision-making capacity.
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.5
Forensic community care orders
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109 Content of forensic community care order
(1) A forensic community care order made in relation to a person may
state 1 or more of the following:
(a) that the person is to be given treatment, care or support;
(b) that the person may be given medication for the treatment of the
person’s mental disorder that is prescribed by a doctor;
(c) that the person is to undertake a counselling, training,
therapeutic or rehabilitation program;
(d) that limits may be imposed on communication between the
person and other people;
(e) that the person must—
(i) live (but not be detained) at a stated approved community
care facility or another stated place; or
(ii) be detained at a stated community care facility;
(f) that the person must not approach a stated person or stated place
or undertake stated activities.
(2) A forensic community care order made in relation to a person must—
(a) state that the person must comply with any determination made
under section 110 (Role of care coordinator—forensic
community care order); and
(b) be accompanied by a statement about how the person meets the
criteria under section 108 (2) (Forensic community care order).
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Forensic mental health orders
Part 7.1
Forensic community care orders
Division 7.1.5
Section 110
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110 Role of care coordinator—forensic community care order
(1) The care coordinator is responsible for coordinating the provision of
treatment, care or support for a person in relation to whom a forensic
community care order is in force.
(2) Within 5 working days after the day the forensic community care
order is made, the care coordinator must determine, in writing, the
times when and the place where the person is required to attend to
receive treatment, care or support, or undertake a counselling,
training, therapeutic or rehabilitation program, in accordance with the
order.
(3) The care coordinator must not determine treatment, care or support
that has, or is likely to have, the effect of subjecting the person to
whom it is given to undue stress or deprivation, having regard to the
benefit likely to result from the treatment, care or support.
(4) Before making a determination in relation to a person, the care
coordinator—
(a) must take all reasonable steps to consult the following:
(i) the person;
(ii) if the person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility);
(iii) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(iv) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(v) if the person has a nominated person—the nominated
person;
(vi) if a health attorney is involved in the treatment, care or
support of the person—the health attorney;
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Part 7.1
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Division 7.1.5
Forensic community care orders
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(vii) if the person is a detainee, a person released on parole or
licence, or a person serving a community-based sentence—
the corrections director-general;
(viii) if the person is covered by a bail order that includes a
condition that the person accept supervision under the Bail
Act 1992, section 25 (4) (e) or section 25A—the
director-general responsible for the supervision of the
person under the Bail Act 1992;
(ix) if the person is a child covered by a bail order that includes
a condition that the child accept supervision under the Bail
Act 1992, section 26 (2)—the CYP director-general;
(x) if the person is a young detainee or a young offender
serving a community-based sentence—the CYP
director-general; and
(b) may consult any other service provider the care coordinator
considers relevant; and
(c) must take into account the views of the people consulted under
this section.
(5) After making a determination in relation to a person, the care
coordinator must record whether the person was consulted and—
(a) if the person was consulted—what the person’s views were; or
(b) if the person was not consulted—the reasons why.
(6) The care coordinator must, as soon as practicable after making a
determination, give a copy of the determination to—
(a) the people mentioned in subsection (4) (a); and
(b) the ACAT; and
(c) the public advocate.
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Forensic community care orders
Division 7.1.5
Section 111
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111 Treatment etc to be explained—forensic community care
order
(1) Before treatment, care or support is given to a person under a forensic
community care order, the care coordinator must ensure that the
nature and effects (including any side effects) of the treatment, care
or support are explained to the person.
(2) The explanation must be given in a way that the person is most likely
to understand.
112 Action if forensic community care order no longer
appropriate—no longer person in relation to whom ACAT
could make order
(1) This section applies if—
(a) a forensic community care order is in force in relation to a
person; and
(b) the care coordinator forms the opinion that the person is no
longer a person in relation to whom the ACAT could make a
forensic community care order.
Note For the criteria for making a forensic community care order, see s 108.
(2) The care coordinator must give written notice to the following
(the notified people):
(a) if the person has a carer—the carer;
(b) if the person has a nominated person—the nominated person;
(c) if the person is covered by a bail order that includes a condition
that the person accept supervision under the Bail Act 1992,
section 25 (4) (e), section 25A or section 26 (2)—the
director-general responsible for the supervision of the person
under the Bail Act 1992;
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Part 7.1
Forensic mental health orders
Division 7.1.5
Forensic community care orders
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(d) if the person is a detainee, a person on parole or licence, or a
person serving a community-based sentence—the corrections
director-general;
(e) if the person is a young detainee or a young offender serving a
community-based sentence—the CYP director-general;
(f) if the person is a child—each person with parental responsibility
for the person under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility).
(3) The notice must—
(a) include the reasons why the care coordinator is satisfied of the
matter mentioned in subsection (1) (b); and
(b) ask whether the notified people are aware of any other
information that may be relevant to whether the forensic
community care order continues to be appropriate for the
person; and
(c) state that, subject to consideration of any information given
under paragraph (b), the care coordinator must tell the ACAT
and public advocate of the matter mentioned in
subsection (1) (b) and this will lead to an ACAT review of the
forensic community care order; and
(d) tell the carer that the carer is entitled to do either or both of the
following:
(i) make a submission to the ACAT review of the forensic
community care order;
(ii) apply to the ACAT to attend the hearing; and
Forensic mental health
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Forensic mental health orders
Part 7.1
Forensic community care orders
Division 7.1.5
Section 113
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(e) tell the other notified people that they are entitled to make a
submission to the ACAT review of the forensic community care
order.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(4) If, having taken into account any information given under subsection
(3) (b), the care coordinator is still satisfied of the matter mentioned
in subsection (1) (b) the care coordinator must tell the ACAT and the
public advocate in writing about—
(a) the care coordinator’s opinion, including the reasons for the
opinion; and
(b) the details of any information given under subsection (3) (b).
Note The ACAT must review the order within 10 days after being notified
under this section (see s 126 (3)).
113 Action if forensic community care order no longer
appropriate—no longer necessary to detain person
(1) This section applies if—
(a) a forensic community care order is in force in relation to a
person; and
(b) the forensic community care order requires the person to be
detained at an approved community care facility; and
(c) the care coordinator forms the opinion that it is no longer
necessary for the person to be detained.
Note 1 For the criteria for making a forensic community care order, see s 108.
For detention powers in relation to a forensic community care order, see
s 114.
Note 2 For principles that must be taken into account when exercising a function
under this Act, see s 6.
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.5
Forensic community care orders
Section 113
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(2) The care coordinator must give written notice to the following
(the notified people):
(a) if the person has a carer—the carer;
(b) if the person has a nominated person—the nominated person;
(c) if the person is covered by a bail order that includes a condition
that the person accept supervision under the Bail Act 1992,
section 25 (4) (e), section 25A or section 26 (2)—the
director-general responsible for the supervision of the person
under the Bail Act 1992;
(d) if the person is a detainee, a person on parole or licence, or a
person serving a community-based sentence—the corrections
director-general;
(e) if the person is a young detainee or a young offender serving a
community-based sentence—the CYP director-general;
(f) if the person is a child—each person with parental responsibility
for the person under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility).
(3) The notice must—
(a) include the reasons why the care coordinator is satisfied of the
matter mentioned in subsection (1) (c); and
(b) ask whether the notified people are aware of any other
information that may be relevant to whether the detention under
the forensic psychiatric treatment order continues to be
appropriate for the person; and
(c) state that, subject to consideration of any information given
under paragraph (b), the care coordinator must tell the ACAT
and public advocate of the matter mentioned in
subsection (1) (c) and this will lead to an ACAT review of the
detention under forensic psychiatric treatment order; and
Forensic mental health
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Part 7.1
Forensic community care orders
Division 7.1.5
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(d) tell the carer that the carer is entitled to do either or both of the
following:
(i) make a submission to the ACAT review of the forensic
community care order;
(ii) apply to the ACAT to attend the hearing; and
(e) tell the other notified people that they are entitled to make a
submission to the ACAT review of the forensic community care
order.
(4) If, having taken into account any information given under
subsection (3) (b), the care coordinator is still satisfied of the matter
mentioned in subsection (1) (c) the care coordinator must tell the
ACAT and the public advocate in writing about—
(a) the care coordinator’s opinion, including the reasons for the
opinion; and
(b) the details of any information given under subsection (3) (b).
Note The ACAT must review the order within 10 days after being notified
under this section (see s 126 (3)).
114 Powers in relation to forensic community care order
(1) This section applies if—
(a) a forensic community care order has been made in relation to a
person; and
(b) either—
(i) the order requires the person to be detained at an approved
community care facility; or
(ii) the care coordinator requires the person to be detained at
an approved community care facility under
section 124 (Contravention of forensic mental health
order).
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.5
Forensic community care orders
Section 114
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(2) The care coordinator may—
(a) detain the person at the facility in the custody that the care
coordinator considers appropriate; and
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers
of search and seizure).
(b) subject the person to the minimum confinement or restraint that
is necessary and reasonable to—
(i) prevent the person from causing harm to themself or
someone else; or
(ii) ensure that the person remains in custody under the order;
and
(c) subject the person to involuntary seclusion if satisfied that it is
the only way in the circumstances to prevent the person from
causing harm to themself or someone else.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(3) If the care coordinator subjects a person to involuntary seclusion, the
care coordinator must ensure that the person is examined by a relevant
doctor of the approved community care facility at least once in each
4-hour period for which the person is in seclusion.
(4) If a community care order made in relation to a person authorises the
giving of medication for the treatment of the person’s mental
disorder, the care coordinator may—
(a) approve the giving by appropriately trained people of
medication prescribed by a doctor in accordance with the order;
and
(b) use, or authorise someone else to use, the force and assistance
that is necessary and reasonable to give the medication (forcible
giving of medication).
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Limits on communication under forensic mental health orders
Division 7.1.6
Section 115
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(5) If the care coordinator subjects a person to restraint, involuntary
seclusion or forcible giving of medication, the care coordinator
must—
(a) enter in the person’s record the fact of and the reasons for the
restraint, involuntary seclusion or forcible giving of medication;
and
(b) tell the public advocate in writing of the restraint, involuntary
seclusion or forcible giving of medication; and
(c) keep a register of the restraint, involuntary seclusion or forcible
giving of medication.
(6) In this section:
relevant doctor, of an approved community care facility, means a
person employed at the facility as a consultant psychiatrist, a
psychiatric registrar in consultation with a consultant psychiatrist or
another doctor in consultation with a consultant psychiatrist.
Division 7.1.6 Limits on communication under
forensic mental health orders
115 Limits on communication—forensic mental health order
(1) This section applies if—
(a) a forensic mental health order is made in relation to a person;
and
(b) the order states that a limit may be imposed on communication
between the person and other people.
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.6
Limits on communication under forensic mental health orders
Section 115
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(2) The relevant official for the order may impose a limit on
communication by the person with other people if—
(a) the limit is consistent with the order; and
(b) the relevant official believes on reasonable grounds that the limit
is necessary and reasonable to avoid prejudicing the
effectiveness of the person’s treatment, care or support.
(3) The relevant official must not impose a limit on communication by
the person with someone authorised under a territory law to
communicate with the person.
(4) As soon as practicable after imposing a limit on communication by a
person, the relevant official must explain to the person, in a way the
person is most likely to understand—
(a) the nature of the limit; and
(b) the period for which the limit will be in effect; and
(c) the reason for imposing the limit.
(5) A limit must not be imposed for a period longer than 7 days.
(6) Subsection (5) does not prevent a further limit being imposed
immediately after a limit previously imposed ceases to be in effect.
(7) This section has effect despite part 3.1 (Rights in relation to
information and communication) but subject to section 116.
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Duration of forensic mental health orders
Division 7.1.7
Section 116
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116 Offence—limits on communication—forensic mental
health order
(1) A relevant official commits an offence if—
(a) the relevant official imposes a limit on communication by a
person subject to a forensic mental health order; and
(b) the relevant official does not ensure that the person has
reasonable access to facilities and adequate opportunity to
contact the public advocate and the person’s lawyer.
Maximum penalty: 20 penalty units.
(2) A relevant official commits an offence if—
(a) the relevant official imposes a limit on communication by a
person subject to a forensic mental health order; and
(b) the public advocate or the person’s lawyer asks the relevant
official to give any reasonable assistance necessary to allow the
public advocate or lawyer to have access to the person; and
(c) the relevant official does not ensure that the assistance is given.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability offence.
Division 7.1.7 Duration of forensic mental health
orders
117 Duration of forensic mental health orders
(1) Unless sooner revoked, a forensic mental health order in relation to a
person remains in force for the period, not longer than the following,
stated in the order:
(a) 3 months;
(b) if consecutive forensic mental health orders have been in force
in relation to a person for 1 year or more—1 year.
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.8
Leave for detained people
Section 118
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(2) A relevant person must, in writing, tell a person in relation to whom
a forensic mental health order has been in force if the order is no
longer in force.
Note 1 The director-general responsible for the Crimes (Sentence
Administration) Act 2005 must tell the director-general of a change in the
person’s status (see Crimes (Sentence Administration) Act 2005,
s 321AA).
Note 2 The chief psychiatrist or another relevant person may apply for a mental
health order in relation to the person (see s 51).
Division 7.1.8 Leave for detained people
118 Meaning of corrections order—div 7.1.8
In this division:
corrections order means any of the following:
(a) a warrant of remand;
(b) a warrant of imprisonment;
(c) a bail order under the Bail Act 1992, with a condition to be
supervised;
(d) a community-based sentence under the Crimes (Sentence
Administration) Act 2005, with a condition to be supervised;
(e) release on licence under the Crimes (Sentence Administration)
Act 2005, chapter 13.
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Leave for detained people
Division 7.1.8
Section 119
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119 Grant of leave for person detained by ACAT
(1) This section applies to a person detained at an approved mental health
facility or approved community care facility under a forensic mental
health order if the ACAT has ordered the detention.
Note 1 The ACAT may order the detention of a person under a forensic mental
health order under s 102 (1) (d) or s 109 (1) (e).
Note 2 For principles that must be taken into account when exercising a function
under this Act, see s 6.
(2) The ACAT may grant the person a period of leave from the facility—
(a) on application by the person; or
(b) on application by the relevant official for the order.
(3) Before granting leave the ACAT must—
(a) if the person is subject to a corrections order—
(i) if the person is a detainee—obtain the agreement of the
corrections director-general; or
(ii) if the person is a young detainee—obtain the agreement of
the CYP director-general; or
(iii) if the person is not a detainee or young detainee—consult
the relevant director-general for the corrections order; and
(b) if the application is by the person—consult the relevant official
for the order.
(4) The ACAT may grant leave for any purpose the ACAT considers
appropriate if satisfied that—
(a) the consultation mentioned in subsection (3) does not raise a
serious concern about the appropriateness of the leave; and
(b) the safety of the person, anyone else or the public will not be
seriously endangered.
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.8
Leave for detained people
Section 119
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(5) The ACAT may refuse to grant leave if satisfied that—
(a) the person applied for leave for the same purpose in the previous
6 months; and
(b) the application was refused.
Examples—purposes
1 to attend a health or rehabilitation service
2 to take part in work or work-related activities
3 for compassionate reasons
(6) A grant of leave must state—
(a) the purpose for which the leave is granted; and
(b) the period for which the leave is granted.
(7) A grant of leave may be subject to conditions, including in relation to
any of the following:
(a) accepting treatment, care or support as required;
(b) enrolling and participating in educational, rehabilitation,
recreational, therapeutic or training programs;
(c) not using alcohol and other drugs;
(d) undergoing drug testing and other medical tests;
(e) the standard of conduct required;
(f) prohibitions or limits on association with stated people or kinds
of people;
(g) prohibitions or limits on visiting stated places, or kinds of
places;
(h) prohibitions or limits on travelling interstate or overseas;
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Leave for detained people
Division 7.1.8
Section 120
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(i) any other condition the ACAT considers appropriate in the
circumstances, taking into account the safety of the person,
anyone else or the public.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(8) If leave is granted under this section, the ACAT must give written
notice to—
(a) the person; and
(b) the relevant official for the order; and
(c) if the person is subject to a corrections order—
(i) if the person is a detainee—the corrections
director-general; or
(ii) if the person is a young detainee—the CYP
director-general; or
(iii) if the person is not a detainee or young detainee—the
relevant director-general for the corrections order.
120 Revocation of leave granted by ACAT
(1) The ACAT may revoke leave granted under section 119 to a person—
(a) on application by the relevant official for the person’s forensic
mental health order; or
(b) if the person is subject to a corrections order—on application by
the corrections director-general; or
(c) in any case—on its own initiative.
(2) Before revoking a person’s leave, the ACAT must give notice that the
revocation is being considered to—
(a) the person; and
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.8
Leave for detained people
Section 120
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(b) the relevant official for the person’s forensic mental health
order; and
(c) if the person is subject to a corrections order—
(i) if the person is a detainee—the corrections
director-general; or
(ii) if the person is a young detainee—the CYP
director-general; or
(iii) if the person is not a detainee or young detainee—the
relevant director-general for the corrections order.
(3) The ACAT may revoke a person’s leave if—
(a) the ACAT believes on reasonable grounds it is necessary to do
so because the person—
(i) is doing, or is likely to do, serious harm to themself or
someone else; or
(ii) is suffering, or is likely to suffer, serious mental or physical
deterioration; or
(iii) is seriously endangering, or is likely to seriously endanger,
public safety; or
(b) the person contravenes a condition of the grant.
(4) If a person’s leave is revoked under this section, the ACAT must give
written notice of the revocation to—
(a) the person; and
(b) the relevant official for the person’s forensic mental health
order; and
(c) if the person is subject to a corrections order—
(i) if the person is a detainee—the corrections
director-general; or
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Leave for detained people
Division 7.1.8
Section 120
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(ii) if the person is a young detainee—the CYP
director-general; or
(iii) if the person is not a detainee or young detainee—the
relevant director-general for the corrections order.
(5) If a person’s leave is revoked under this section, a police officer,
authorised ambulance paramedic, doctor or mental health officer may
apprehend the person and take the person to a relevant facility.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(6) If a person is detained under subsection (5), the relevant official must,
within 12 hours after the detention starts, give written notice to the
ACAT and the public advocate of—
(a) the name of the person detained; and
(b) the reasons for the detention; and
(c) the name and address of the relevant facility where the person is
detained.
(7) In this section:
relevant facility means—
(a) for a person in relation to whom a forensic psychiatric treatment
order is in force—an approved mental health facility; or
(b) for a person in relation to whom a forensic community care order
is in force—an approved community care facility.
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.8
Leave for detained people
Section 121
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121 Grant of leave for person detained by relevant official
(1) This section applies to a person detained at an approved mental health
facility or approved community care facility under a forensic mental
health order if the relevant official has detained the person at the
facility.
Note 1 The chief psychiatrist may make a determination under s 103 (Role of
chief psychiatrist—forensic psychiatric treatment order) requiring
detention of a person at an approved mental health facility.
Note 2 The care coordinator may require a person to be detained at an approved
community care facility (see s 114 and s 124).
(2) The relevant official may grant a period of leave from the approved
mental health facility or approved community care facility—
(a) on application by the person; or
(b) on the relevant official’s own initiative.
(3) Before granting leave the relevant official must—
(a) notify the ACAT of the application for leave; and
(b) if the person is subject to a corrections order—
(i) if the person is a detainee—obtain the agreement of the
corrections director-general; or
(ii) if the person is a young detainee—obtain the agreement of
the CYP director-general; or
(iii) if the person is not a detainee or young detainee—consult
the relevant director-general for the corrections order.
(4) The relevant official must not grant leave if satisfied that—
(a) the person applied to the ACAT for leave for the same purpose
in the previous 6 months; and
(b) the application was refused.
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Leave for detained people
Division 7.1.8
Section 121
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(5) The relevant official may allow the person to take a period of leave
for any purpose the relevant official considers appropriate if satisfied
that—
(a) the consultation mentioned in subsection (3) does not raise a
serious concern about the appropriateness of the leave; and
(b) the safety of the person, anyone else or the public will not be
seriously endangered.
Examples—purposes
1 to attend a health or rehabilitation service
2 to take part in work or work-related activities
3 for compassionate reasons
(6) The grant of leave must state—
(a) the purpose for which the leave is granted; and
(b) the period for which the leave is granted.
(7) The grant of leave may be subject to conditions, including in relation
to any of the following:
(a) accepting treatment, care or support as required;
(b) enrolling and participating in educational, rehabilitation,
recreational, therapeutic or training programs;
(c) not using alcohol and other drugs;
(d) undergoing drug testing and other medical tests;
(e) the standard of conduct required;
(f) prohibitions or limits on association with stated people or kinds
of people;
(g) prohibitions or limits on visiting stated places, or kinds of
places;
(h) prohibitions or limits on travelling interstate or overseas;
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.8
Leave for detained people
Section 122
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(i) any other condition the relevant official considers appropriate in
the circumstances taking into account the safety of the person,
anyone else or the public.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(8) If leave is granted under this section, the relevant official must give
written notice to—
(a) the person; and
(b) if the person is subject to a corrections order—
(i) if the person is a detainee—the corrections
director-general; or
(ii) if the person is a young detainee—the CYP
director-general; or
(iii) if the person is not a detainee or young detainee—the
relevant director-general for the corrections order.
122 Leave in emergency or special circumstances
(1) This section applies to a person detained at an approved mental health
facility or approved community care facility under a forensic mental
health order if—
(a) the ACAT has ordered the detention; or
(b) the relevant official has detained the person at the facility.
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Leave for detained people
Division 7.1.8
Section 122
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(2) The relevant official may grant the person a period of leave from the
approved mental health facility or approved community care facility
if satisfied that—
(a) there are emergency or special circumstances for granting the
leave; and
Examples
1 to attend a relative’s funeral
2 to attend an urgent medical appointment
(b) the safety of the person, someone else or the public will not be
seriously endangered by the leave.
(3) Before granting leave the relevant official must—
(a) if the person is a detainee—obtain the agreement of the
corrections director-general; and
(b) if the person is a young detainee—obtain the agreement of the
CYP director-general; and
(c) if the person is not a detainee or young detainee—consult the
relevant director-general for the corrections order.
(4) The relevant official must not grant leave under this section if the
person—
(a) has applied for leave based on the same emergency or special
circumstances under section 119 (Grant of leave for person
detained by ACAT), section 121 (Grant of leave for person
detained by relevant official) or this section; and
(b) the ACAT or the relevant official has refused to grant the leave.
(5) If leave is granted under this section, the relevant official must give
written notice to—
(a) the person; and
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.8
Leave for detained people
Section 123
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(b) if the person is subject to a corrections order—
(i) if the person is a detainee—the corrections
director-general; or
(ii) if the person is a young detainee—the CYP
director-general; or
(iii) if the person is not a detainee or young detainee—the
relevant director-general for the corrections order.
Note The function of granting leave under this section must not be delegated
(see s 200 (2) (Delegation by chief psychiatrist) and s 207 (2) (Delegation
by care coordinator)).
123 Revocation of leave granted by relevant official
(1) The relevant official may revoke leave granted under section 121 or
section 122 to a person—
(a) if the person is subject to a corrections order—on application by
the corrections director-general; or
(b) in any case—on its own initiative.
(2) Before revoking a person’s leave, the relevant official must give
notice that the revocation is being considered to—
(a) the person; and
(b) if the person is subject to a corrections order—
(i) if the person is a detainee—the corrections
director-general; or
(ii) if the person is a young detainee—the CYP
director-general; or
(iii) if the person is not a detainee or young detainee—the
relevant director-general for the corrections order.
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Leave for detained people
Division 7.1.8
Section 123
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(3) The relevant official may revoke a person’s leave if—
(a) the relevant official believes on reasonable grounds it is
necessary to do so because the person—
(i) is doing, or is likely to do, serious harm to themself or
someone else; or
(ii) is suffering, or is likely to suffer, serious mental or physical
deterioration; or
(iii) is seriously endangering, or is likely to seriously endanger,
public safety; or
(b) the person contravenes a condition of the grant.
(4) If a person’s leave is revoked under this section, the relevant official
must give written notice of the revocation to—
(a) the person; and
(b) if the person is subject to a corrections order—
(i) if the person is a detainee—the corrections
director-general; or
(ii) if the person is a young detainee—the CYP
director-general; or
(iii) if the person is not a detainee or young detainee—the
relevant director-general for the corrections order.
(5) If a person’s leave is revoked under this section, a police officer,
authorised ambulance paramedic, doctor or mental health officer may
apprehend the person and take the person to a relevant facility.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.9
Contravention and review of forensic mental health orders
Section 124
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(6) If a person is detained under subsection (5), the relevant official must,
within 12 hours after the detention starts, give written notice to the
ACAT and the public advocate of—
(a) the name of the person detained; and
(b) the reasons for the detention; and
(c) the name and address of the relevant facility where the person is
detained.
(7) In this section:
relevant facility means—
(a) for a person in relation to whom a forensic psychiatric treatment
order is in force—an approved mental health facility; or
(b) for a person in relation to whom a forensic community care order
is in force—an approved community care facility.
Division 7.1.9 Contravention and review of forensic
mental health orders
124 Contravention of forensic mental health order
(1) This section applies if—
(a) a forensic mental health order is in force in relation to a person;
and
(b) the person contravenes the order; and
(c) section 125 (Contravention of forensic mental health order—
absconding from facility) does not apply to the contravention.
Examples—contravention
1 failure to return from leave granted by ACAT
2 not attending mental health facility for treatment, care or support
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Contravention and review of forensic mental health orders
Division 7.1.9
Section 124
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(2) The relevant official for the order or a mental health officer may take
action to tell the person that failure to comply with the order may
result in the person being apprehended and taken to a relevant facility
for treatment, care or support.
(3) Action taken under subsection (2) must—
(a) be taken within 7 days of the contravention; and
(b) involve the taking of all reasonable steps to tell the person the
information mentioned in subsection (2).
(4) If the noncompliance continues after the taking of action under
subsection (2), the relevant official or mental health officer may
require the person to be detained at a relevant facility for treatment,
care or support.
(5) If a person is required to be detained under subsection (4), a police
officer, authorised ambulance paramedic, doctor or mental health
officer may apprehend the person and take the person to a relevant
facility.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(6) If a person is detained under this section the relevant official or mental
health officer must, within 12 hours after the detention starts, give
written notice to the ACAT and the public advocate of—
(a) the name of the person detained; and
(b) the reasons for the detention; and
(c) the name and address of the relevant facility where the person is
detained.
Note The ACAT must review the order within 72 hours after being notified
under this subsection (see s 126 (5)).
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.9
Contravention and review of forensic mental health orders
Section 125
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(7) In this section:
relevant facility means—
(a) for a person in relation to whom a forensic psychiatric treatment
order is in force—an approved mental health facility; or
(b) for a person in relation to whom a forensic community care order
is in force—an approved community care facility.
125 Contravention of forensic mental health order—
absconding from facility
(1) This section applies if—
(a) a forensic mental health order is in force in relation to a person;
and
(b) the forensic mental health order requires the person to be
detained at an approved mental health facility or an approved
community care facility; and
(c) the person absconds from the facility.
(2) The person in charge of the facility must immediately tell the police
that the person has absconded.
(3) A police officer, authorised ambulance paramedic, mental health
officer or doctor may apprehend the person and take the person to an
approved mental health facility or approved community care facility.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(4) A police officer, authorised ambulance paramedic, mental health
officer or doctor who apprehends a person under this section must tell
the person the reason for the apprehension.
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Contravention and review of forensic mental health orders
Division 7.1.9
Section 126
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(5) If a person is detained under this section the relevant official for the
order must, within 12 hours after the detention starts, give written
notice to the ACAT and the public advocate of—
(a) the name of the person detained; and
(b) the reasons for the detention; and
(c) the name and address of the facility where the person is detained.
Note The ACAT must review the order within 72 hours after being notified
under this subsection (see s 126 (5)).
126 Review of forensic mental health order
(1) The ACAT may review a forensic mental health order in force in
relation to a person on its own initiative.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(2) The ACAT must review a forensic mental health order in force in
relation to a person if the person, or the person’s representative,
applies for the review on the basis that the order, or part of the order,
is no longer required.
(3) The ACAT must review each forensic mental health order in force in
relation to a person within 10 days if the ACAT receives notice in
relation to the person under any of the following:
(a) section 105 (Action if forensic psychiatric treatment order no
longer appropriate—no longer person in relation to whom
ACAT could make order);
(b) section 106 (Action if forensic psychiatric treatment order no
longer appropriate—no longer necessary to detain person);
(c) section 112 (Action if forensic community care order no longer
appropriate—no longer person in relation to whom ACAT could
make order);
Chapter 7
Forensic mental health
Part 7.1
Forensic mental health orders
Division 7.1.9
Contravention and review of forensic mental health orders
Section 126
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(d) section 113 (Action if forensic community care order no longer
appropriate—no longer necessary to detain person).
(4) A review of a matter under subsection (3) must include, as far as
practicable, consulting a person mentioned in section 97.
(5) The ACAT must review each forensic mental health order in force in
relation to the person within 72 hours if the ACAT receives notice in
relation to the person under—
(a) section 124 (6) (Contravention of forensic mental health order);
or
(b) section 125 (5) (Contravention of forensic mental health order—
absconding from facility).
(6) A review required under subsection (5)—
(a) may be conducted without a hearing; and
(b) may include consulting a person mentioned in section 97.
Note If the ACAT holds a hearing for the review, s 188 (1) (Notice of hearing)
does not apply (see s 188 (3)).
(7) If the ACAT is satisfied that a person in relation to whom a forensic
mental health order is in force is no longer a person in relation to
whom the ACAT could make a forensic mental health order, the
ACAT must revoke all the forensic mental health orders in force in
relation to the person.
(8) In any other case, the ACAT may, if appropriate, do any of the
following:
(a) confirm, amend or revoke any of the forensic mental health
orders in force in relation to the person;
(b) make additional forensic mental health orders in relation to the
person;
Forensic mental health
Chapter 7
Forensic mental health orders
Part 7.1
Contravention and review of forensic mental health orders
Division 7.1.9
Section 126
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(c) make a mental health order in relation to the person;
(d) make an assessment order in relation to the person.
(9) In this section:
representative, for a person, means any of the following:
(a) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(b) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(c) if the person has a nominated person—the nominated person;
(d) a close relative or close friend of the person;
(e) a legal representative of the person.
Chapter 7
Forensic mental health
Part 7.2
Affected people
Section 127
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Part 7.2 Affected people
127 Definitions—pt 7.2
In this part:
affected person register—see section 130.
director-general means the director-general responsible for the ACT
Civil and Administrative Tribunal Act 2008.
forensic patient means a person—
(a) in relation to whom a forensic mental health order may be made
or is in force; or
(b) who, if required by an order of a court under the Crimes Act,
part 13 or the Crimes Act 1914 (Cwlth), part 1B must submit to
the jurisdiction of the ACAT or is subject to a review by the
ACAT.
publish means communicate or disseminate information in a way or
to an extent that makes it available to, or likely to come to the notice
of, the public or a section of the public or anyone else not lawfully
entitled to the information.
128 Meaning of affected person
(1) In this Act:
affected person, in relation to a forensic patient, means a person who
suffers harm because of an offence committed, or alleged to have
been committed, by the forensic patient, and includes—
(a) a person (the primary affected person) who suffers harm—
(i) in the course of, or as a result of, the commission of the
offence; or
(ii) as a result of witnessing the offence; and
Forensic mental health
Chapter 7
Affected people
Part 7.2
Section 128
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(b) a family member of the primary affected person who suffers
harm because of the harm to the primary affected person; and
(c) a person who is financially or psychologically dependent on the
primary affected person and who suffers harm because of the
harm to the primary affected person; and
(d) if a person mentioned for this definition is a child or legally
incompetent person—a guardian of the child or legally
incompetent person.
Note An affected person may also be entitled to information and assistance as
a victim of crime under the Victims of Crime Act 1994.
(2) In this section:
enduring power of attorney—see the Powers of Attorney Act 2006,
section 8.
guardian means—
(a) for a child—a parent, a legally appointed guardian of the child
or someone else with parental responsibility for the child under
the Children and Young People Act 2008, division 1.3.2
(Parental responsibility); or
(b) for a legally incompetent person—a person who is—
(i) a legally appointed guardian of the legally incompetent
person; or
(ii) an attorney, appointed under an enduring power of attorney
that has become operative, for the legally incompetent
person.
harm includes 1 or more of the following:
(a) physical injury;
(b) mental injury or emotional suffering (including grief);
(c) pregnancy;
Chapter 7
Forensic mental health
Part 7.2
Affected people
Section 129
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(d) economic loss;
(e) substantial impairment of a person’s legal rights.
legally appointed guardian means a guardian under the
Guardianship and Management of Property Act 1991.
legally incompetent person means an adult who is subject to—
(a) an enduring power of attorney that has become operative; or
(b) a guardianship order.
129 Meaning of registered affected person
In this Act:
registered affected person, in relation to a forensic patient, means an
affected person in relation to the forensic patient whose information
is entered in the register kept under section 130.
130 Affected person register
The director-general must maintain a register (the affected person
register) of affected people in relation to offences committed or
alleged to have been committed by forensic patients.
131 Notifying people about the affected person register
(1) The director-general must take reasonable steps to notify affected
people in relation to forensic patients about the affected person
register.
(2) The notice must set out—
(a) the rights of a registered affected person under section 134; and
(b) the requirement for an affected person to sign an undertaking not
to publish the information received under section 134 if the
person wants to be registered as an affected person.
Forensic mental health
Chapter 7
Affected people
Part 7.2
Section 132
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(3) The notice may seek the consent of the affected person to include the
person’s information on the register if the director-general considers
that it is necessary for the person’s safety and wellbeing.
Note A person who is the victim of a crime may also be entitled to information
and assistance under the Children and Young People Act 2008, the
Crimes (Sentence Administration) Act 2005, and the Victims of Crime
Act 1994.
132 Including person in affected person register
(1) The director-general must enter in the register information about an
affected person if—
(a) the person, or someone acting for the person—
(i) asks the director-general to enter the information; or
(ii) gives consent to the director-general entering the
information; and
(b) the person signs an undertaking not to publish information
disclosed under section 134; and
(c) the director-general is satisfied that entering the information is
necessary for the affected person’s safety and wellbeing.
(2) As soon as practicable after entering the affected person’s
information in the register, the director-general must give the
registered affected person, orally or in writing, information about the
person’s rights as a registered affected person under section 134.
(3) Subsection (2) does not apply if the director-general has given the
affected person written notice under section 131.
(4) If the registered affected person is a child under 15 years old, the
director-general may give the information to a person who has
parental responsibility for the person under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility).
Chapter 7
Forensic mental health
Part 7.2
Affected people
Section 133
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(5) The director-general must not disclose the information in the register
about a registered affected person to—
(a) a forensic patient; or
(b) any other entity except the following:
(i) the registered affected person;
(ii) a person mentioned in subsection (4);
(iii) a person with legal authority to act for the registered
affected person;
(iv) if disclosure of the information is or may be relevant for a
matter before a court—the court.
133 Removing person from affected person register
(1) The director-general must remove a registered affected person’s
information from the affected person register on request by the person
or someone with legal authority to act for the person.
(2) The director-general may, at any time, remove a registered affected
person’s information from the register if—
(a) the ACAT considers that it is no longer necessary for the
person’s wellbeing and safety to be a registered affected person;
or
(b) the person breaches an undertaking not to publish information
disclosed under section 134.
(3) However, before the director-general removes a person’s information
from the register under subsection (2), the director-general must give
the person written notice of their intention to remove the information.
Note The director-general may delegate the function under this section, for
example, to the Victims of Crime Commissioner (see Public Sector
Management Act 1994, s 20).
Forensic mental health
Chapter 7
Affected people
Part 7.2
Section 134
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(4) The notice must include a statement to the effect that the person has
28 days to tell the director-general in writing why it is necessary for
the person’s wellbeing and safety to remain on the register.
134 Disclosures to registered affected people
(1) This section applies if—
(a) a forensic mental health order has been made in relation to a
forensic patient; or
(b) under an order of a court under the Crimes Act, part 13 or the
Crimes Act 1914 (Cwlth), part 1B, a forensic patient must
submit to the jurisdiction of the ACAT or is subject to a review
by the ACAT.
(2) The director-general must disclose to a registered affected person in
relation to the forensic patient information about any of the following
happening in relation to the forensic patient:
(a) an application for a forensic mental health order has been made;
(b) a forensic mental health order is in force;
(c) the patient must submit to the jurisdiction of the ACAT or is
subject to a review by the ACAT;
(d) a decision made by the ACAT in relation to the patient in the
circumstances mentioned in paragraph (c);
(e) the patient absconds, or fails to return after leave, from a mental
health facility or community care facility;
(f) the patient is transferred to or from another jurisdiction;
(g) the patient is released from a mental health facility or
community care facility.
Chapter 7
Forensic mental health
Part 7.2
Affected people
Section 134
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(3) The director-general may disclose any other information about the
forensic patient to a registered affected person in relation to the
patient that the director-general considers necessary for the registered
affected person’s safety and wellbeing.
(4) However, the director-general must not disclose identifying
information about a child, or a person who was a child when the
offence was committed or alleged to have been committed, unless the
offence was a personal violence offence and the director-general
believes that the registered affected person, or a family member of the
affected person, may come into contact with the child or person.
(5) If the registered affected person is a child under 15 years old, the
director-general may give the information to a person who has
parental responsibility for the affected person under the Children and
Young People Act 2008, division 1.3.2 (Parental responsibility).
(6) Subsection (5) does not limit the cases in which the director-general
may give information to a person acting for a registered affected
person.
(7) The director-general must ensure that every disclosure under this
section is accompanied by a written statement that—
(a) the registered affected person must not publish the disclosed
information; and
(b) publishing disclosed information may result in a registered
affected person being removed from the register of affected
people; and
(c) if the disclosed information relates to a forensic patient who is a
child or young person, or was a child or young person when the
offence was committed or alleged to have been committed—
publishing the disclosed information is an offence under the
Criminal Code, section 712A.
Forensic mental health
Chapter 7
Affected people
Part 7.2
Section 134
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(8) In this section:
family violence offence—see the Family Violence Act 2016,
dictionary.
personal violence offence means—
(a) an offence that involves causing harm, or threatening to cause
harm, to anyone; or
(b) a family violence offence.
Chapter 8
Correctional patients
Part 8.1
Preliminary
Section 135
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Chapter 8 Correctional patients
Part 8.1 Preliminary
135 Meaning of correctional patient
In this Act:
correctional patient means a person in relation to whom a transfer
direction has been made.
Note Transfer direction is defined in s 136 (3). Transfer directions for
correctional patients are made by the corrections director-general or the
CYP director-general. They can only be made for people for whom a
mental health order or forensic mental health order cannot be made (see
s 136 (1) (b)).
Correctional patients
Chapter 8
Transfer of correctional patients
Part 8.2
Section 136
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Part 8.2 Transfer of correctional patients
136 Transfer to mental health facility
(1) This section applies if—
(a) the chief psychiatrist is satisfied that a detainee or young
detainee has a mental illness for which treatment, care or support
is available in an approved mental health facility; and
(b) a mental health order or forensic mental health order cannot be
made in relation to the person.
(2) The chief psychiatrist may ask the corrections director-general or the
CYP director general to direct that the detainee or young detainee be
transferred from a correctional centre or detention place to a stated
approved mental health facility, and be detained at the facility.
(3) If the corrections director-general or the CYP director-general
decides to make the direction requested, the direction (the transfer
direction) must be made—
(a) for the corrections director-general—under the Corrections
Management Act 2007, section 54 (Transfers to health
facilities); and
(b) for the CYP director-general—under the Children and Young
People Act 2008, section 109 (Transfers to health facilities).
(4) Before making a transfer direction, the CYP director-general must, as
far as practicable, consult each person with parental responsibility for
the young detainee under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility).
(5) The corrections director-general or the CYP director-general may, at
the request of the chief psychiatrist and at any time before the transfer
takes place, revoke the direction.
Chapter 8
Correctional patients
Part 8.2
Transfer of correctional patients
Section 137
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137 Return to correctional centre or detention place unless
direction to remain
(1) A correctional patient must, within 7 days after the day the patient is
transferred to an approved mental health facility under a transfer
direction, be returned or transferred—
(a) if the patient is a detainee—to a correctional centre; or
(b) if the patient is a young detainee—to a detention place.
(2) However, the chief psychiatrist may direct that a correctional patient
remain at an approved mental health facility for longer than 7 days if
the chief psychiatrist is satisfied that—
(a) the person has a mental illness for which treatment, care or
support is available in the approved mental health facility; and
(b) other care of an appropriate kind would not be reasonably
available to the person in the correctional centre or detention
place.
(3) The chief psychiatrist may direct that a correctional patient be
returned or transferred to the correctional centre or detention place at
any time if the chief psychiatrist is satisfied that—
(a) the person no longer has a mental illness for which treatment,
care or support is available in an approved mental health facility;
or
(b) other care of an appropriate kind would be reasonably available
to the person in a correctional centre or detention place.
Note The corrections director-general and the CYP director-general may give
a direction for removal and return of the person at any time (see
Corrections Management Act 2007, s 54 and Children and Young People
Act 2008, s 109).
Correctional patients
Chapter 8
Transfer of correctional patients
Part 8.2
Section 138
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138 Release etc on change of status of correctional patient
(1) This section applies if—
(a) the director-general is told by the corrections director-general or
CYP director-general, or otherwise becomes aware, of any of
the following in relation to a person who is a correctional
patient:
(i) the person’s sentence of imprisonment ends;
(ii) the person is released on parole;
(iii) the person is otherwise released from detention on the
order of a court;
(iv) the relevant charge against the person is dismissed;
(v) the director of public prosecutions notifies the ACAT or a
court that the relevant charge against the person will not
proceed; and
(b) the person is not required to be detained under another court
order.
Note The corrections director-general and the CYP director-general must tell
the director-general of any change in a person’s status as a detainee or
young detainee (see Corrections Management Act 2007, s 54A and
Children and Young People Act 2008, s 109A).
(2) The director-general must—
(a) at the person’s request, continue the treatment, care or support
in the approved mental health facility; or
(b) make any other decision that the director-general may make in
relation to the person under this Act; or
(c) release the person from the approved mental health facility.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
Chapter 8
Correctional patients
Part 8.2
Transfer of correctional patients
Section 139
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139 ACAT may return people to correctional centre or
detention place
(1) This section applies to a correctional patient who has been transferred
to an approved mental health facility.
(2) The correctional patient may, at any time, apply to the ACAT to be
returned to a correctional centre or detention place.
Note 1 Requirements for applications to the ACAT are set out in the ACT Civil
and Administrative Tribunal Act 2008, s 10.
Note 2 If a form is approved under the ACT Civil and Administrative Tribunal
Act 2008, s 117 for the application, the form must be used.
(3) On application, the ACAT—
(a) must order the correctional patient be returned to a correctional
centre or detention place if satisfied that the patient does not
have a mental illness for which treatment, care or support is
available in the approved mental health facility; and
(b) may order the correctional patient be returned to a correctional
centre or detention place if the ACAT considers it appropriate.
(4) The ACAT may, at any time on its own initiative, order the
correctional patient be returned to a correctional centre or detention
place if the ACAT considers it appropriate.
Correctional patients
Chapter 8
Review of correctional patients
Part 8.3
Section 140
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Part 8.3 Review of correctional patients
140 Review of correctional patient awaiting transfer to mental
health facility
(1) This section applies to a correctional patient who has not been
transferred to an approved mental health facility under a transfer
direction.
(2) The ACAT must review the transfer direction—
(a) at the end of 1 month after the direction is made; and
(b) at the end of each subsequent month until the person is
transferred to an approved mental health facility or the transfer
direction is revoked.
(3) For each review, the chief psychiatrist must give the ACAT a report
about—
(a) the person’s condition; and
(b) the reasons for the delay in transferring the person to an
approved mental health facility; and
(c) the availability of an approved mental health facility with
capacity to accept the transfer and provide the treatment, care or
support.
(4) On review, the ACAT may, as it considers appropriate, make an order
in relation to the detention or treatment, care or support of the person
in an approved mental health facility.
141 Review of correctional patient transferred to mental
health facility
(1) This section applies to a correctional patient who has been transferred
to an approved mental health facility under a transfer direction.
(2) The ACAT must review the transfer direction as soon as practicable
after the correctional patient has been transferred.
Chapter 8
Correctional patients
Part 8.3
Review of correctional patients
Section 142
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(3) On review, the ACAT—
(a) must determine—
(i) whether the person has a mental illness for which
treatment, care or support is available in an approved
mental health facility; and
(ii) whether the approved mental health facility has capacity to
continue the detention and treatment, care or support under
the transfer direction; and
(iii) whether other treatment, care or support of an appropriate
kind would not be reasonably available to the person in the
correctional centre or detention place; and
(b) may, as it considers appropriate, make an order in relation to the
person’s continued detention or treatment, care or support in an
approved mental health facility.
142 Review of correctional patient detained at mental health
facility
(1) This section applies to a correctional patient transferred to an
approved mental health facility under a transfer direction and
detained at the facility for at least 6 months.
(2) The ACAT must review the transfer—
(a) at the end of each 12-month period for which the correctional
patient is detained at the approved mental health facility; and
(b) at any other time on request by any of the following:
(i) the Minister;
(ii) the Attorney-General;
(iii) the director-general;
(iv) the corrections director-general;
Correctional patients
Chapter 8
Review of correctional patients
Part 8.3
Section 142
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(v) the CYP director-general;
(vi) the person in charge of the approved mental health facility
at which the person is detained.
(3) Also, the ACAT may, at any time on its own initiative, review the
transfer.
(4) For a review, the chief psychiatrist must give the ACAT a report
about—
(a) the person’s condition; and
(b) the capacity of the approved mental health facility to continue,
and the availability of any other approved mental health facility
to accept a transfer for, the detention or treatment, care or
support.
(5) On review, the ACAT may, as it considers appropriate, make an order
in relation to the person’s continued detention at, or treatment care or
support in, an approved mental health facility.
(6) The ACAT must tell the following, in writing, about a review under
this section:
(a) the director-general;
(b) the corrections director-general;
(c) the CYP director-general.
Chapter 8
Correctional patients
Part 8.4
Leave for correctional patients
Section 142A
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Part 8.4 Leave for correctional patients
142A Definitions—pt 8.4
In this part:
health director-general means the director-general responsible for
this chapter.
relevant director-general means—
(a) for a correctional patient who is taken to be in the custody of the
director-general under chapter 8A (Transfer of custody—secure
mental health facility)—the health director-general; and
(b) for any other correctional patient—
(i) if the patient is a detainee—the corrections
director-general; and
(ii) if the patient is a young detainee—the CYP
director-general.
143 Grant of leave for correctional patients
(1) The relevant director-general may grant a correctional patient a
period of leave from an approved mental health facility if satisfied
that—
(a) there are special circumstances for granting the leave; and
Example
to attend a relative’s funeral
(b) the safety of the correctional patient, someone else or the public
will not be seriously endangered.
(2) Before granting leave, the relevant director-general must consult—
(a) the chief psychiatrist; and
Correctional patients
Chapter 8
Leave for correctional patients
Part 8.4
Section 143
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(b) if the relevant director-general is the health director-general—
the corrections director-general or the CYP director-general.
(3) The grant of leave must state—
(a) the purpose for which the leave is granted; and
(b) the period for which the leave is granted.
(4) The grant of leave may be subject to conditions, including in relation
to any of the following:
(a) accepting treatment, care or support as required;
(b) enrolling and participating in educational, rehabilitation,
recreational, therapeutic or training programs;
(c) not using alcohol and other drugs;
(d) undergoing drug testing and other medical tests;
(e) the standard of conduct required;
(f) prohibitions or limits on association with stated people or kinds
of people;
(g) prohibitions or limits on visiting stated places, or kinds of
places;
(h) prohibitions or limits on travelling interstate or overseas;
(i) any other condition the director-general considers appropriate in
the circumstances taking into account the safety of the person,
anyone else or the public.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
Chapter 8
Correctional patients
Part 8.4
Leave for correctional patients
Section 144
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144 Revocation of leave for correctional patients
(1) The relevant director-general may revoke a grant of leave in relation
to a correctional patient if—
(a) the patient contravenes a condition of the grant; or
(b) the chief psychiatrist considers it is necessary to revoke the grant
because the patient—
(i) is doing, or is likely to do, serious harm to themself or
someone else; or
(ii) is suffering, or is likely to suffer, serious mental or physical
deterioration; or
(iii) seriously endangers, or is likely to seriously endanger,
public safety.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(2) Before revoking a grant of leave under subsection (1), the relevant
director-general must consult—
(a) the chief psychiatrist; and
(b) if the relevant director-general is the health director-general—
the corrections director-general or the CYP director-general.
(3) If a person’s leave is revoked under this section, a police officer,
authorised ambulance paramedic, doctor or mental health officer may
apprehend the person and take the person to an approved mental
health facility.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
Correctional patients
Chapter 8
Leave for correctional patients
Part 8.4
Section 144
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(4) If a person is detained under subsection (3), the person in charge of
the approved mental health facility must, within 12 hours after the
detention starts, give written notice to the ACAT and the public
advocate of—
(a) the name of the person detained; and
(b) the reasons for the detention; and
(c) the name and address of the approved mental health facility
where the person is detained.
Chapter 8A
Transfer of custody—secure mental health facility
Section 144A
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Chapter 8A Transfer of custody—secure
mental health facility
144A Transfer of custody if person admitted to secure mental
health facility
(1) A person is taken to be in the custody of the director-general if the
person is admitted to a secure mental health facility under—
(a) the Children and Young People Act 2008, section 109 (Transfers
to health facilities); or
(b) the Corrections Management Act 2007, section 54 (Transfers to
health facilities); or
(c) part 8.2 (Transfer of correctional patients).
Note See also the Children and Young People Act 2008, s 245 and the
Corrections Management Act 2007, s 217.
(2) However, a person admitted to a secure mental health facility is taken
to be in the custody of the director-general only until the person is
discharged from the facility.
(3) If custody of a person is transferred to the director-general, the
director-general must—
(a) immediately give written notice of the transfer of custody to—
(i) if the person is a detainee—the corrections
director-general; and
(ii) if the person is a young detainee—the CYP
director-general; and
(b) as soon as practicable give written notice of the transfer of
custody to the following:
(i) the ACAT;
(ii) the public advocate;
Transfer of custody—secure mental health facility
Chapter 8A
Section 144A
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(iii) the person;
(iv) if the person has a nominated person—the nominated
person;
(v) if the person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility).
(4) The director-general must, as soon as practicable, give written notice
of an intention to discharge a person from a secure mental health
facility to the following people:
(a) if the person is a detainee—the corrections director-general;
(b) if the person is a young detainee—the CYP director-general.
(5) A person who takes a detainee or young detainee to a secure mental
health facility must give the director-general a written statement
containing any of the following relevant information:
(a) the nature and extent of any force, restraint, involuntary
seclusion or forcible giving of medication used when, or in
relation to, taking the person to the facility;
(b) anything else that happened when, or in relation to, taking the
person to the facility that may have an effect on the person’s
physical or mental health.
Examples—par (b)
1 the person was subject to threat of violence from another person
2 a package of white powder fell out of the person’s pocket
3 the person was in an agitated state and hit their head against the side of
the transport vehicle
(6) The director-general must—
(a) enter the statement in the person’s record; and
(b) keep a register of any restraint, involuntary seclusion or forcible
giving of medication included in the statement; and
Chapter 8A
Transfer of custody—secure mental health facility
Section 144B
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(c) tell the public advocate, in writing, of any restraint, involuntary
seclusion or forcible giving of medication included in the
statement.
(7) In this section:
admitted to a secure mental health facility includes transferred to the
facility.
Example
A person is transferred to a secure mental health facility from another unit at the
Canberra Hospital.
144B Taking person to appear before court
(1) This section applies if a person taken to be in the custody of the
director-general is required to appear before a court.
(2) The corrections director-general or the CYP director-general must tell
the director-general about the requirement as soon as practicable after
becoming aware of it.
(3) When the person is transferred from a secure mental health facility
for the purpose of attending court, the person is taken to be in the
custody of—
(a) if the person is a detainee—the corrections director-general; and
(b) if the person is a young detainee—the CYP director-general.
(4) When the person is returned to the secure mental health facility, the
person is taken to be in the custody of the director-general.
(5) In this section:
court includes the integrity commission.
Transfer of custody—secure mental health facility
Chapter 8A
Section 144C
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144C Release etc on change of status of person
(1) This section applies if—
(a) the director-general is told by the corrections director-general,
the CYP director-general or otherwise becomes aware of any of
the following in relation to a person who is taken to be in the
director-general’s custody:
(i) the person’s sentence of imprisonment ends;
(ii) the person is released on parole;
(iii) the person is otherwise released on the order of a court;
(iv) the relevant charge against the person is dismissed;
(v) the director of public prosecutions notifies the ACAT or a
court that the relevant charge against the person will not
proceed; and
(b) the person is not required to be detained under another court
order.
(2) The director-general must—
(a) at the person’s request, continue the treatment, care or support
in an approved mental health facility; or
(b) if the person is a child who does not have decision-making
capacity to make the request—at the request of a person with
parental responsibility for the person under the Children and
Young People Act 2008, division 1.3.2 (Parental responsibility),
continue the treatment, care or support in an approved mental
health facility; or
Chapter 8A
Transfer of custody—secure mental health facility
Section 144D
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(c) make any other decision that the director-general may make in
relation to the person under this Act; or
(d) release the person from the secure mental health facility.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
(3) The director-general must give written notice of a decision made
under subsection (2) to the following:
(a) the ACAT;
(b) the public advocate;
(c) the person;
(d) if the person has a nominated person—the nominated person;
(e) if the person is a child—each person with parental responsibility
for the child under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility);
(f) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian and the
ACAT;
(g) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney.
144D Power to apprehend if person escapes from secure
mental health facility
(1) This section applies if a person taken to be in the custody of the
director-general escapes from a secure mental health facility.
(2) The person in charge of the secure mental health facility must
immediately tell the police that the person has escaped.
Transfer of custody—secure mental health facility
Chapter 8A
Section 144D
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(3) The person in charge of the secure mental health facility must also
give written notice of the person escaping to the following:
(a) the ACAT;
(b) the public advocate;
(c) if the person has a nominated person—the nominated person;
(d) if the person is a child—each person with parental responsibility
for the child under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility);
(e) if the person is a young detainee—the CYP director-general;
(f) if the person is a detainee—the corrections director-general;
(g) if there is a registered affected person in relation to the person—
the director-general responsible for the ACT Civil and
Administrative Tribunal Act 2008.
(4) A police officer, authorised ambulance paramedic, mental health
officer or doctor may apprehend the person and return the person to
the secure mental health facility.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(5) A police officer, authorised ambulance paramedic, mental health
officer or doctor who apprehends and returns the person to a secure
mental health facility must give the director-general a written
statement containing any of the following relevant information:
(a) the nature and extent of the force or assistance used to enter any
premises, or to apprehend the person and take the person to the
facility;
(b) the nature and extent of any restraint, involuntary seclusion or
forcible giving of medication used when apprehending the
person or taking the person to the facility;
Chapter 8A
Transfer of custody—secure mental health facility
Section 144E
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(c) anything else that happened when the person was being
apprehended and taken to the facility that may have an effect on
the person’s physical or mental health.
Examples—par (c)
1 the person was subject to threat of violence from another person
2 a package of white powder fell out of the person’s pocket
3 the person was in an agitated state and hit their head against the side of
the transport vehicle
(6) The director-general must—
(a) enter the statement in the person’s record; and
(b) keep a register of any restraint, involuntary seclusion or forcible
giving of medication included in the statement; and
(c) tell the public advocate, in writing, of any restraint, involuntary
seclusion or forcible giving of medication included in the
statement.
144E Transfers to health facilities
(1) The director-general may direct that a person taken to be in the
director-general’s custody be transferred to a health facility if the
director-general believes on reasonable grounds that it is necessary or
prudent for the person to receive health services at the facility.
(2) The director-general must, if practicable, have regard to the advice of
the person’s treating doctor when considering whether to make a
direction under subsection (1).
(3) The director-general may direct an escort officer to escort the person
to or from the health facility, or while at the facility.
(4) The person may be discharged from the health facility only if—
(a) the health practitioner in charge of the person’s care approves
the discharge; or
Transfer of custody—secure mental health facility
Chapter 8A
Section 144F
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(b) the director-general directs that the person be removed from the
facility.
Example—par (b)
where the person is a danger to the safety of people at the facility
(5) The director-general must have regard to the health of the person
when considering whether to make a direction under subsection (4).
(6) The director-general may give a direction for ensuring that a person
discharged from a health facility under subsection (4) is returned to
the secure mental health facility.
(7) In this section:
escort officer—see section 144F (Escort officers).
health facility means a hospital or other facility where health services
are provided.
144F Escort officers
(1) The director-general may direct an escort officer to escort a person
who is taken to be in the director-general’s custody to or from a secure
mental health facility, other than to or from a court.
Note For transfers to or from a court, see s 144B.
(2) To remove any doubt—
(a) the escort officer is authorised to have custody of the person for
the purposes of escorting the person; and
(b) the person is also taken to be in the custody of the
director-general; and
(c) this section is additional to, and does not limit, any other
provision relating to the escorting of a person under a territory
law or a law of the Commonwealth, a State or another territory.
Chapter 8A
Transfer of custody—secure mental health facility
Section 144G
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(3) In this section:
escort officer, in relation to a person, means—
(a) an authorised health practitioner under the Mental Health
(Secure Facilities) Act 2016; or
(b) an authorised person under the Mental Health (Secure
Facilities) Act 2016; or
(c) a police officer; or
(d) a corrections officer if the corrections director-general has
agreed to the officer having the function of escorting the person
under this chapter; or
(e) a youth detention officer if the CYP director-general has agreed
to the officer having the function of escorting the person under
this chapter.
youth detention officer—see the Children and Young People
Act 2008, section 96.
144G Crimes Act escape provisions
A person who is taken to be in the custody of the director-general
under this chapter is taken, for the Crimes Act 1900, part 7 (Escape
provisions), to be in lawful custody in relation to an offence.
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Preliminary—ch 9
Part 9.1
Section 145
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Chapter 9 Electroconvulsive therapy and
psychiatric surgery
Part 9.1 Preliminary—ch 9
145 Definitions
(1) In this Act:
electroconvulsive therapy means a procedure for the induction of an
epileptiform convulsion in a person.
electroconvulsive therapy order means an order under section 157
for the administration of electroconvulsive therapy to a person.
emergency electroconvulsive therapy order means an order under
section 162 for the emergency administration of electroconvulsive
therapy to a person.
psychiatric surgery means specialised neurosurgery for psychiatric
conditions.
(2) In this section:
neurosurgery means surgery on the brain of a person for the purpose
of treating a pathological condition of the physical structure of the
brain.
146 Form of consent
(1) For this chapter, consent to a procedure (other than consent given in
an advance consent direction) must be given in writing signed by the
person giving the consent and witnessed by a person other than—
(a) the person seeking to obtain the consent; or
(b) the doctor who is proposing to conduct the procedure.
Note For requirements for the form of advance consent for electroconvulsive
therapy, see s 27 (4) (Making advance consent direction).
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.1
Preliminary—ch 9
Section 146
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(2) In this section:
procedure means—
(a) the administration of electroconvulsive therapy; or
(b) the performance of psychiatric surgery.
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Electroconvulsive therapy
Part 9.2
Administration of electroconvulsive therapy
Division 9.2.1
Section 147
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Part 9.2 Electroconvulsive therapy
Division 9.2.1 Administration of electroconvulsive
therapy
147 When electroconvulsive therapy may be administered
(1) Electroconvulsive therapy may be administered to an adult only as
provided under section 148 and section 149.
(2) Electroconvulsive therapy may be administered to a person who is at
least 12 years old but under 18 years old only as provided under
section 150 and section 151.
(3) Electroconvulsive therapy must not be administered to a person who
is under 12 years old.
148 Adult with decision-making capacity
(1) This section applies to a person who—
(a) is an adult; and
(b) has decision-making capacity to consent to the administration of
electroconvulsive therapy.
Note For principles of decision-making capacity, see s 8.
(2) Electroconvulsive therapy may be administered to the person if the
person—
(a) has given consent to the administration of electroconvulsive
therapy; and
(b) has not withdrawn the consent, either orally or in writing; and
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.2
Electroconvulsive therapy
Division 9.2.1
Administration of electroconvulsive therapy
Section 149
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(c) has not had electroconvulsive therapy administered—
(i) 9 or more times since the consent was given; or
(ii) if the consent was to the administration of
electroconvulsive therapy a stated number of times less
than 9—that number of times.
149 Adult without decision-making capacity
(1) This section applies to a person who—
(a) is an adult; and
(b) does not have decision-making capacity to consent to the
administration of electroconvulsive therapy.
(2) Electroconvulsive therapy may be administered to the person if—
(a) the person has an advance consent direction consenting to
electroconvulsive therapy; and
(b) it is administered in accordance with the direction; and
(c) the person does not refuse or resist.
(3) Also, electroconvulsive therapy may be administered to the person
if—
(a) it is administered in accordance with an electroconvulsive
therapy order or an emergency electroconvulsive therapy order
in force in relation to the person; and
(b) either—
(i) the person does not refuse or resist; or
(ii) a psychiatric treatment order or a forensic psychiatric
treatment order is also in force in relation to the person.
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Electroconvulsive therapy
Part 9.2
Administration of electroconvulsive therapy
Division 9.2.1
Section 150
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150 Young person with decision-making capacity
(1) This section applies to a person who—
(a) is at least 12 years old but under 18 years old; and
(b) has decision-making capacity to consent to the administration of
electroconvulsive therapy.
Note For principles of decision-making capacity, see s 8.
(2) Electroconvulsive therapy may be administered to the person if—
(a) it is administered in accordance with—
(i) for a 12 to 15 year old—an electroconvulsive therapy order
in force in relation to the person; or
(ii) for a 16 or 17 year old—an electroconvulsive therapy order
or an emergency electroconvulsive therapy order in force
in relation to the person; and
(b) the person has given consent to the administration of
electroconvulsive therapy; and
(c) the person has not withdrawn the consent, either orally or in
writing.
151 Young person without decision-making capacity
(1) This section applies to a person who—
(a) is at least 12 years old but under 18 years old; and
(b) does not have decision-making capacity to consent to the
administration of electroconvulsive therapy.
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.2
Electroconvulsive therapy
Division 9.2.1
Administration of electroconvulsive therapy
Section 152
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(2) Electroconvulsive therapy may be administered to the person if—
(a) it is administered in accordance with—
(i) for a 12 to 15 year old—an electroconvulsive therapy order
in force in relation to the person; or
(ii) for a 16 or 17 year old—an electroconvulsive therapy order
or an emergency electroconvulsive therapy order in force
in relation to the person; and
(b) either—
(i) the person does not refuse or resist; or
(ii) a psychiatric treatment order or a forensic psychiatric
treatment order is also in force in relation to the person.
152 Offence—unauthorised administration of
electroconvulsive therapy
(1) A person commits an offence if—
(a) the person administers electroconvulsive therapy to a person;
and
(b) the person is not a doctor.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(2) A doctor commits an offence if—
(a) the doctor administers electroconvulsive therapy to a person;
and
(b) the electroconvulsive therapy may not be administered to the
person under this division.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Electroconvulsive therapy
Part 9.2
Electroconvulsive therapy orders
Division 9.2.2
Section 153
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Division 9.2.2 Electroconvulsive therapy orders
153 Application for electroconvulsive therapy order
(1) This section applies if the chief psychiatrist or a doctor believes on
reasonable grounds that the ACAT could reasonably make an
electroconvulsive therapy order in relation to a person.
(2) The chief psychiatrist or doctor may apply to the ACAT for an
electroconvulsive therapy order in relation to the person.
(3) If the person is under 18 years old—
(a) the application must be supported by the evidence of another
doctor; and
(b) the applicant or the other doctor (or both) must be a child and
adolescent psychiatrist.
Note A psychiatric treatment order or forensic psychiatric treatment order is
also needed if electroconvulsive therapy is to be administered to the
person and the person refuses or resists (see s 149 (3) (b) (i) and
s 151 (2) (b) (i)).
(4) In this section:
child and adolescent psychiatrist means a psychiatrist who is a
member of the Faculty of Child and Adolescent Psychiatry of the
Royal Australian and New Zealand College of Psychiatrists.
154 Consultation by ACAT—electroconvulsive therapy order
Before making an electroconvulsive therapy order in relation to a
person who is not subject to a mental health order, the ACAT must,
as far as practicable, consult—
(a) if the person is under 18 years old—each person with parental
responsibility for the person under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility); and
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.2
Electroconvulsive therapy
Division 9.2.2
Electroconvulsive therapy orders
Section 155
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(b) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian; and
(c) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney; and
(d) if the person has a nominated person—the nominated person;
and
(e) if a health attorney is involved in the treatment, care or support
of the person—the health attorney.
155 ACAT must hold hearing—electroconvulsive therapy
order
Before making an electroconvulsive therapy order in relation to a
person, the ACAT must hold a hearing into the matter.
156 What ACAT must take into account—electroconvulsive
therapy order
In making an electroconvulsive therapy order in relation to a person,
the ACAT must take into account the following:
(a) whether the person consents, refuses to consent or has the
decision-making capacity to consent to the electroconvulsive
therapy;
(b) the views and wishes of the person, so far as they can be found
out, including in—
(i) an advance agreement; and
(ii) an advance consent direction;
(c) the views of the people responsible for the day-to-day care of
the person, so far as those views are made known to the ACAT;
(d) the views of the people appearing at the proceeding;
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Electroconvulsive therapy
Part 9.2
Electroconvulsive therapy orders
Division 9.2.2
Section 157
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(e) the views of the people consulted under section 154
(Consultation by ACAT—electroconvulsive therapy order);
(f) any alternative treatment, care or support reasonably available,
including—
(i) the purpose of the treatment, care or support; and
(ii) the benefits likely to be derived by the person from the
treatment, care or support; and
(iii) the distress, discomfort, risks, side effects or other
disadvantages associated with the treatment, care or
support;
(g) any relevant medical history of the person.
157 Making of electroconvulsive therapy order
(1) On application under section 153, the ACAT may make an
electroconvulsive therapy order in relation to a person who is at least
12 years old if satisfied that—
(a) the person has a mental illness; and
(b) the person does not have decision-making capacity to consent to
the administration of electroconvulsive therapy; and
(c) the person does not have an advance consent direction refusing
consent to electroconvulsive therapy; and
(d) the administration of electroconvulsive therapy is likely to result
in substantial benefit to the person; and
(e) either—
(i) all other reasonable forms of treatment available have been
tried but have not been successful; or
(ii) the treatment is the most appropriate treatment reasonably
available.
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.2
Electroconvulsive therapy
Division 9.2.2
Electroconvulsive therapy orders
Section 158
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(2) Also on application under section 153, the ACAT may make an
electroconvulsive therapy order in relation to a person who is at least
12 years old but under 18 years old if satisfied that—
(a) the person has a mental illness; and
(b) the person has decision-making capacity to consent to the
administration of electroconvulsive therapy; and
(c) the person consents to the administration of electroconvulsive
therapy; and
(d) the administration of electroconvulsive therapy is likely to result
in substantial benefit to the person.
(3) The ACAT must, as soon as practicable after making an
electroconvulsive therapy order under this section, give a copy of the
order to the following:
(a) the person in relation to whom the order is made;
(b) the person who applied for the order;
(c) the people consulted under section 154 (Consultation by
ACAT—electroconvulsive therapy order).
158 Content of electroconvulsive therapy order
(1) An electroconvulsive therapy order made in relation to a person must
state—
(a) the matters under section 157 (1) or (2) of which the ACAT is
satisfied in relation to the person; and
(b) the maximum number of times electroconvulsive therapy may
be administered to the person under the order.
Note The ACAT must give a copy of the order to certain people (see s 195).
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Electroconvulsive therapy
Part 9.2
Emergency electroconvulsive therapy orders
Division 9.2.3
Section 159
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(2) For subsection (1) (b), the maximum number must be—
(a) if the person has an advance consent direction that includes
advance consent for electroconvulsive therapy—not more than
the maximum number of times stated in the direction; and
(b) in any other case—not more than 9.
159 Person to be told about electroconvulsive therapy order
(1) This section applies if electroconvulsive therapy is to be administered
to a person at a mental health facility under an electroconvulsive
therapy order.
(2) The person in charge of the facility must ensure that the person is told
about the order, and the procedures authorised under the order, before
the therapy is administered and in a language and way of
communicating that the person is most likely to understand.
(3) This section applies even if the person was present when the order
was made.
Division 9.2.3 Emergency electroconvulsive therapy
orders
160 Application for emergency electroconvulsive therapy
order
(1) This section applies if the chief psychiatrist and a doctor believe on
reasonable grounds that the ACAT could reasonably make an
emergency electroconvulsive therapy order in relation to a person.
(2) The chief psychiatrist and doctor may jointly apply to the ACAT for
an emergency electroconvulsive therapy order in relation to the
person.
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.2
Electroconvulsive therapy
Division 9.2.3
Emergency electroconvulsive therapy orders
Section 161
page 186
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(3) The application must be accompanied by an application for an
electroconvulsive therapy order in relation to the person.
Note 1 The ACAT must give a copy of the application to the following people
as soon as practicable (and not longer than 24 hours) after the application
is lodged:
• the public advocate
• if the person is a child—the CYP director-general (see s 187).
Note 2 Certain people are entitled to appear and give evidence, and be
represented, at the proceeding, including the following:
• the person who is the subject of the proceeding
• the public advocate
• the discrimination commissioner.
Other people are also entitled to appear (see s 190).
Note 3 A psychiatric treatment order or forensic psychiatric treatment order is
also needed if electroconvulsive therapy is to be administered to the
person and the person refuses or resists (see s 149 (3) (b) and
s 151 (2) (b)).
161 What ACAT must take into account—emergency
electroconvulsive therapy order
In making an emergency electroconvulsive therapy order in relation
to a person, the ACAT must take into account the following:
(a) the views and wishes of the person, so far as they can be found
out, including in—
(i) an advance agreement; and
(ii) an advance consent direction;
(b) the views of the people appearing at the proceeding;
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Electroconvulsive therapy
Part 9.2
Emergency electroconvulsive therapy orders
Division 9.2.3
Section 162
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(c) the views of the following, so far as those views are made known
to the ACAT:
(i) the people responsible for the day-to-day care of the
person;
(ii) if the person is under 18 years old—each person with
parental responsibility for the person under the Children
and Young People Act 2008, division 1.3.2 (Parental
responsibility);
(iii) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(iv) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(v) if the person has a nominated person—the nominated
person;
(vi) if a health attorney is involved in the treatment, care or
support of the person—the health attorney.
Note Section 188 (Notice of hearing) does not apply in relation to the making
of an emergency electroconvulsive therapy order (see s 188 (3)).
162 Making of emergency electroconvulsive therapy order
(1) On application under section 160, the ACAT may make an
emergency electroconvulsive therapy order in relation to a person
who is at least 16 years old if satisfied that—
(a) the person has a mental illness; and
(b) the person does not have decision-making capacity to consent to
the administration of electroconvulsive therapy; and
(c) the person does not have an advance consent direction refusing
consent to electroconvulsive therapy; and
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.2
Electroconvulsive therapy
Division 9.2.3
Emergency electroconvulsive therapy orders
Section 162
page 188
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(d) the administration of the electroconvulsive therapy is necessary
to—
(i) save the person’s life; or
(ii) prevent the likely onset of a risk to the person’s life within
3 days; and
(e) either—
(i) all other reasonable forms of treatment available have been
tried but have not been successful; or
(ii) the treatment is the most appropriate treatment reasonably
available.
(2) Also on application under section 160, the ACAT may make an
emergency electroconvulsive therapy order in relation to a person
who is at least 16 years old if the ACAT is satisfied that—
(a) the person has a mental illness; and
(b) the person has decision-making capacity to consent to the
administration of electroconvulsive therapy and consents to the
administration of electroconvulsive therapy; and
(c) the administration of the electroconvulsive therapy is necessary
to—
(i) save the person’s life; or
(ii) prevent the likely onset of a risk to the person’s life within
3 days; and
(d) either—
(i) all other reasonable forms of treatment available have been
tried but have not been successful; or
(ii) the treatment is the most appropriate treatment reasonably
available.
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Electroconvulsive therapy
Part 9.2
Records of electroconvulsive therapy
Division 9.2.4
Section 163
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163 Content of an emergency electroconvulsive therapy order
An emergency electroconvulsive therapy order made in relation to a
person must state that—
(a) electroconvulsive therapy may be administered to the person a
stated number of times (not more than 3); and
(b) the order expires a stated number of days (not more than 7) after
it is made.
Note The ACAT must give a copy of the order to certain people within
24 hours (see s 195).
164 Effect of later order
If an emergency electroconvulsive therapy order is in force in relation
to a person and the ACAT makes an electroconvulsive therapy order
in relation to the person, the emergency electroconvulsive therapy
order ceases to be in force.
Division 9.2.4 Records of electroconvulsive therapy
165 Doctor must record electroconvulsive therapy
(1) If a doctor administers electroconvulsive therapy to a person, the
doctor must make a record of the administration, including whether
the administration—
(a) was in accordance with an order of the ACAT; and
(b) was with the person’s consent.
(2) The doctor must give the record to the person in charge of the
psychiatric facility where the therapy was administered.
(3) A doctor commits an offence if the doctor fails to comply with
subsection (1) or (2).
Maximum penalty: 20 penalty units.
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.2
Electroconvulsive therapy
Division 9.2.4
Records of electroconvulsive therapy
Section 166
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166 Electroconvulsive therapy records to be kept for 5 years
The person in charge of a psychiatric facility must keep a record of
electroconvulsive therapy given under section 165 (2) for at least
5 years after the day the record is given.
Maximum penalty: 20 penalty units.
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Psychiatric surgery
Part 9.3
Section 167
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Part 9.3 Psychiatric surgery
167 Performance on people subject to orders of ACAT
Psychiatric surgery may be performed on a person under this part
despite any order of the ACAT in force in relation to the person.
168 Psychiatric surgery not to be performed without approval
or if person refuses
A doctor commits an offence if—
(a) the doctor performs psychiatric surgery on a person; and
(b) the doctor—
(i) does not have the chief psychiatrist’s approval for
performance of the surgery; or
(ii) has been told under section 174 that the person refuses to
have the surgery performed.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
169 Application for approval
(1) A doctor may apply to the chief psychiatrist for approval for a stated
neurosurgeon to perform psychiatric surgery on a person.
(2) The doctor who makes the application must be a psychiatrist.
(3) The application must be in writing and be accompanied by—
(a) a copy of the consent of the person; or
(b) if the consent is in an advance consent direction—a copy of the
advance consent direction; or
(c) a copy of an order of the Supreme Court under section 173.
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.3
Psychiatric surgery
Section 170
page 192
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(4) The doctor must, as soon as practicable after giving the application to
the chief psychiatrist, give a copy of the application to the person on
whom the surgery is proposed to be performed.
170 Application to be considered by committee
(1) The chief psychiatrist must, as soon as practicable after receiving an
application under section 169, give a copy of the application to the
chairperson of the committee appointed under section 175.
(2) The chairperson must as soon as practicable after receiving the
application—
(a) tell the following people, in writing, of the application:
(i) the person on whom the surgery is proposed to be
performed (the subject person);
(ii) if the subject person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility);
(iii) if the subject person has a guardian under the Guardianship
and Management of Property Act 1991—the guardian;
(iv) if the subject person has an attorney under the Powers of
Attorney Act 2006—the attorney;
(v) if the subject person has a nominated person—the
nominated person;
(vi) if a health attorney is involved in the treatment, care or
support of the subject person—the health attorney; and
(b) convene a meeting of the committee to consider the application;
and
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Psychiatric surgery
Part 9.3
Section 170
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(c) give a written report to the chief psychiatrist that includes the
following:
(i) the committee’s recommendation about whether or not the
chief psychiatrist should approve the performance of the
psychiatric surgery;
(ii) if the committee recommends approval for the surgery—
(A) the conditions (if any) to which the approval should
be subject; and
(B) a statement that the committee is satisfied that the
neurosurgeon has the necessary qualifications and
experience to perform the surgery;
(iii) the committee’s reasons for making the recommendations
in the report.
(3) The committee must—
(a) ensure that the people told of the application under
subsection (2) (a) are given an opportunity to make an oral or
written submission to the committee; and
(b) consider any submissions received.
(4) The committee must not recommend that the chief psychiatrist
approve the performance of psychiatric surgery unless—
(a) the committee believes on reasonable grounds that—
(i) the surgery will result in substantial benefit to the subject
person; and
(ii) all alternative forms of treatment reasonably available have
failed, or are likely to fail, to benefit the subject person;
and
(b) the recommendation is supported by the psychiatrist and the
neurosurgeon on the committee.
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.3
Psychiatric surgery
Section 171
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(5) The chief psychiatrist must ensure that a copy of the committee’s
report is placed on the subject person’s record.
171 Requirement for further information
(1) On request by the committee considering an application, the chief
psychiatrist must, by written notice given to the doctor who made the
application, require the doctor to give the chief psychiatrist further
stated information or documents relevant to the application.
(2) The committee need not consider the application further until the
required information or documents are given to the chief psychiatrist.
(3) The chief psychiatrist must give the chairperson of the committee any
information or documents given to the chief psychiatrist in
compliance with a requirement under subsection (1).
172 Application to be decided in accordance with
committee’s recommendation
The chief psychiatrist must decide an application under section 169
in accordance with the committee’s recommendation.
173 Consent of Supreme Court
(1) This section applies if a doctor proposes that psychiatric surgery be
performed on a person but the person does not have decision-making
capacity to consent or an advance consent direction consenting to the
surgery.
(2) The doctor and the neurosurgeon who is to perform the surgery may
jointly apply to the Supreme Court for an order consenting to the
performance of psychiatric surgery on the person.
Note The order is needed for an application for the chief psychiatrist’s approval
for performance of the surgery (see s 169 (3) (c)).
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Psychiatric surgery
Part 9.3
Section 174
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(3) The Supreme Court may make the order only if satisfied on
reasonable grounds that—
(a) the person has a mental illness; and
(b) the person—
(i) does not have decision-making capacity to consent to the
surgery; and
(ii) does not have an advance consent direction consenting to
the surgery; and
(iii) has not refused to consent to the surgery (in an advance
consent direction or otherwise); and
(c) there are grounds for believing that the performance of the
surgery is likely to result in substantial benefit to the person; and
(d) all alternative forms of treatment reasonably available have
failed, or are likely to fail, to benefit the person.
174 Refusal of psychiatric surgery
(1) This section applies in relation to a person—
(a) who has given consent to the performance of psychiatric
surgery; or
(b) in relation to whom the Supreme Court has made an order
consenting to the performance of psychiatric surgery under
section 173.
(2) The person may, before the psychiatric surgery is performed, tell the
chief psychiatrist or anyone else, orally or in writing or by indicating
in any other way, that the person refuses to have the surgery
performed.
Chapter 9
Electroconvulsive therapy and psychiatric surgery
Part 9.3
Psychiatric surgery
Section 174
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(3) A person (other than the chief psychiatrist) who is told under
subsection (2) that the person refuses to have psychiatric surgery
performed must tell the chief psychiatrist of the refusal.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(4) If the chief psychiatrist has approved the performance of psychiatric
surgery on a person under section 172 and is told under this section
that the person refuses to have the surgery, the chief psychiatrist
must—
(a) immediately tell the doctor who is to perform the surgery of the
refusal; and
(b) ensure that written documentation of the refusal is placed on the
person’s record.
(5) If the chief psychiatrist is told under this section that a person refuses
to have psychiatric surgery performed—
(a) any consent to the performance of the surgery given by the
person, or any order made by the Supreme Court under
section 173 in relation to the person, ceases to have effect; and
(b) if, immediately before the date of the refusal, an application for
the approval of the performance of the surgery has been made
but has not been decided, the application is taken to have been
withdrawn on that date; and
(c) any approval given by the chief psychiatrist for the performance
of the surgery ceases to have effect.
Electroconvulsive therapy and psychiatric surgery
Chapter 9
Psychiatric surgery
Part 9.3
Section 175
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175 Appointment of committee
(1) For section 170, the Minister must appoint a committee consisting
of—
(a) a psychiatrist; and
(b) a neurosurgeon; and
(c) a lawyer; and
(d) a clinical psychologist; and
(e) a social worker.
Note 1 For the making of appointments (including acting appointments), see the
Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular provision of a
law (see Legislation Act, s 7 (3)) and an appointment may be made by
naming a person or nominating the occupant of a position (see Legislation
Act, s 207).
Note 3 Certain Ministerial appointments require consultation with an Assembly
committee and are disallowable (see Legislation Act, div 19.3.3).
(2) The Minister must appoint a member of a committee to be the
chairperson of the committee.
(3) The chairperson of the committee must convene meetings of the
committee.
(4) Subject to section 170 (4) (b), a question arising at a meeting of a
committee must be decided in accordance with the opinion of a
majority of members of the committee.
(5) A member of a committee must be paid the remuneration and
allowances (if any) prescribed by regulation.
Chapter 10
Referrals by courts under Crimes Act and Children and Young People
Act
Section 176
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Chapter 10 Referrals by courts under
Crimes Act and Children and
Young People Act
176 Review of certain people found unfit to plead
(1) This section applies if—
(a) the Supreme Court or the Magistrates Court makes a decision
under the Crimes Act, section 315A (3) or section 315D (7) that
a person is unfit to plead to a charge; and
(b) the charge is for an offence punishable by imprisonment for
5 years or longer; and
(c) an order is made in relation to the charge under any of the
following provisions of the Crimes Act:
• section 318 (2) (Non-acquittal at special hearing—non-
serious offence);
• section 319 (2) or (3) (Non-acquittal at special hearing—
serious offence);
• section 335 (2), (3) or (4) (Fitness to plead—Magistrates
Court).
(2) The ACAT may (on application or on its own initiative) review the
person’s fitness to plead at any time.
(3) However, the ACAT must review the person’s fitness to plead—
(a) as soon as practicable (but within 3 months) after the end of
12 months after the day the order is made; and
(b) at least once every 12 months after each review.
(4) Subsection (3) does not apply if—
(a) the person has already been found fit to plead; or
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Section 176
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(b) the director of public prosecutions has told the ACAT, in
writing, of the director’s intention not to take further
proceedings against the person in relation to the offence.
(5) On a review, the ACAT must decide on the balance of probabilities
whether the person is unfit to plead.
(6) The ACAT must decide that the person is unfit to plead if satisfied
that the person’s mental processes are disordered or impaired to the
extent that the person cannot—
(a) understand the nature of the charge; or
(b) enter a plea to the charge and exercise the right to challenge
jurors or the jury; or
(c) understand that the proceeding is an inquiry about whether the
person committed the offence; or
(d) follow the course of the proceeding; or
(e) understand the substantial effect of any evidence that may be
given in support of the prosecution; or
(f) give instructions to the person’s lawyer.
(7) The person is not unfit to plead only because the person is suffering
from memory loss.
(8) To remove any doubt, this section applies even if the person is no
longer in custody or under a mental health order or forensic mental
health order.
Note A person who is the subject of a proceeding may be subpoenaed to appear
at the proceeding (see ACT Civil and Administrative Tribunal Act 2008,
s 41).
Chapter 10
Referrals by courts under Crimes Act and Children and Young People
Act
Section 177
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177 Recommendations about people with mental impairment
(1) This section applies if—
(a) the Supreme Court makes an order under the Crimes Act,
division 13.3 requiring a person to submit to the jurisdiction of
the ACAT to enable the ACAT to make recommendations to the
court about how the person should be dealt with; or
(b) a court makes an order under the Crimes Act, division 13.5
(Referring people with mental impairment to ACAT after
conviction) or division 13.6 (Summary proceedings against
mentally impaired people), requiring a person to submit to the
jurisdiction of the ACAT to enable the ACAT—
(i) to determine whether the person has a mental impairment;
and
(ii) if the ACAT determines that the person has a mental
impairment—to make recommendations to the court about
how the person should be dealt with.
(2) After an inquiry, and as the ACAT thinks appropriate in relation to
the person—
(a) the ACAT must determine on the balance of probabilities,
whether or not the person has a mental impairment; and
(b) if the ACAT determines that the person has a mental
impairment, the ACAT must make recommendations to the
court about how the person should be dealt with.
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Chapter 10
Section 178
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178 Recommendations about people with mental disorder or
mental illness
(1) This section applies if the Childrens Court makes a care and
protection order, interim care and protection order with a mental
health ACAT provision, a mental health referral in a proceeding for
an interim intensive therapy order or intensive therapy order, an
interim intensive therapy order or intensive therapy order, under the
Children and Young People Act 2008 requiring a person to submit to
the jurisdiction of the ACAT to enable the ACAT—
(a) to determine whether the person has a mental disorder or mental
illness; and
(b) if the ACAT determines that the person has a mental disorder or
mental illness—to make recommendations to the court about
how the person should be dealt with.
(2) After an inquiry, and as the ACAT thinks appropriate in relation to
the person—
(a) the ACAT must determine on the balance of probabilities,
whether or not the person has a mental disorder or mental illness;
and
(b) if the ACAT determines that the person has a mental disorder or
mental illness, the ACAT must make recommendations to the
court about how the person should be dealt with.
179 Service of decisions etc
The ACAT must serve a copy of a decision, determination or
recommendation made under section 176, section 177 or section 178
on—
(a) the person about whom the decision, determination or
recommendation is made; and
(b) the representative of that person (if any); and
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Section 180
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(c) the public advocate; and
(d) the director of public prosecutions; and
(e) if the person about whom the decision, determination or
recommendation is made is a child—the CYP director-general.
180 Review of detention under court order
(1) This section applies if, under the Crimes Act, part 13, a court orders
that a person be detained in custody for immediate review by the
ACAT.
(2) The ACAT must review the detention and consider the release of the
person—
(a) as soon as practicable, and not later than 7 days after the day of
the order; and
(b) if the ACAT does not order the release of the person—at least
monthly while the detention continues.
Note Under s 188, the ACAT must give notice of the hearing to certain people
and may give notice to anyone else it considers appropriate.
(3) In reviewing the detention and considering the release of a person, the
ACAT must have regard to the following:
(a) that detention in custody is to be regarded as a last resort and
ordered only in exceptional circumstances;
(b) the nature and extent of the person’s mental disorder or mental
illness, including the effect it is likely to have on the person’s
behaviour in the future;
(c) whether or not, if released—
(i) the person’s health or safety would be, or would be likely
to be, substantially at risk; or
(ii) the person would be likely to do serious harm to others;
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Section 180
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(d) if there is a registered affected person in relation to the person—
(i) any statement by the registered affected person; and
(ii) the views of the victims of crime commissioner;
(e) if the court nominated a term under the Crimes Act, part 13—
the nominated term;
(f) any information the chief psychiatrist or director-general has
given to the ACAT about the treatment, care or support the
person requires, including that the person be admitted to a
particular approved mental health facility or approved
community care facility.
(4) An order for the release of a person may be made subject to the
conditions (if any) the ACAT considers appropriate, including a
requirement to comply with a particular mental health order or
forensic mental health order as in force from time to time.
(5) If, on a review, the ACAT does not order the release of a person, the
ACAT may—
(a) make mental health orders (including additional orders) in
relation to the person; or
(b) make forensic mental health orders (including additional orders)
in relation to the person; or
(c) vary or revoke any of the mental health orders or forensic mental
health orders in force in relation to the person.
(6) If, on a review, the ACAT does not order the release of a person, the
ACAT must tell the following that the detention continues:
(a) the person;
(b) the chief psychiatrist;
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Section 181
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(c) if the person is a child—
(i) each person with parental responsibility for the child under
the Children and Young People Act 2008, division 1.3.2
(Parental responsibility); and
(ii) the CYP director-general;
(d) the public advocate;
(e) the human rights commission;
(f) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(g) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(h) if the person has a nominated person—the nominated person;
(i) if a health attorney is involved in the treatment, care or support
of the person—the health attorney;
(j) if the person is detained in a correctional centre—the corrections
director-general;
(k) if the person is detained in a detention place—the CYP director-
general.
181 Contravention of conditions of release
(1) This section applies if—
(a) the ACAT orders the release of a person subject to a condition
under section 180 (4); and
(b) the person contravenes the condition.
(2) The chief psychiatrist must tell the ACAT of the contravention, in
writing, as soon as practicable after becoming aware of the
contravention.
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Section 182
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182 Review of conditions of release
(1) The ACAT must review a condition under section 180 (4) to which
an order for release of a person is subject at least every 6 months while
the order is subject to the condition.
(2) The ACAT must review each condition under section 180 (4), to
which an order for release of a person is subject within 72 hours after
receiving notice under section 181 (2).
(3) A review required under subsection (2) may be conducted without a
hearing.
Note If the ACAT holds a hearing for the review, s 188 (1) (Notice of hearing)
does not apply (see s 188 (3)).
(4) In reviewing a condition of an order of release for a person, if there is
a registered affected person in relation to the person, the ACAT must
take into account—
(a) any statement by the registered affected person; and
(b) the views of the victims of crime commissioner.
(5) The ACAT may, as it considers appropriate—
(a) amend or revoke any condition of the order, including any
requirement to comply with a particular mental health order or
forensic mental health order as in force from time to time; or
(b) impose any other condition the ACAT considers appropriate,
including a requirement to comply with a particular mental
health order or forensic mental health order as in force from time
to time.
(6) Also, if a person contravenes a condition of an order of release, the
ACAT may order that the person be detained in custody until the
ACAT orders otherwise.
Chapter 10
Referrals by courts under Crimes Act and Children and Young People
Act
Section 183
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183 Limit on detention
(1) Nothing in section 180 or section 182 permits the ACAT to require a
person to remain in custody for a period that is, or for periods that in
the aggregate are, greater than the limiting period.
(2) In subsection (1):
limiting period, in relation to a person, means a period that is
equivalent to the period—
(a) commencing on the day on which an order of the relevant court
under the Crimes Act, part 13 is made requiring the person to be
detained in custody until the ACAT orders otherwise; and
(b) ending on the day on which, if the person had been sentenced to
a term of imprisonment for a period equivalent to the term
nominated under that Act, section 301, section 302, section 304
or section 305 (as the case may be) that sentence would have
expired.
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Section 184
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Chapter 11 ACAT procedural matters
184 Meaning of subject person—ch 11
In this chapter:
subject person—see section 190.
185 When ACAT may be constituted by presidential member
(1) This section applies to a proceeding on any of the following:
(a) an assessment order;
(b) a removal order under section 43 (2) (Removal order to conduct
assessment);
(c) an order for the extension of a person’s detention under
section 85 (3) (Authorisation of involuntary detention);
(d) a review of involuntary detention under section 85 (5);
(e) an order for a person’s release under section 91 (Orders for
release);
(f) a grant of leave under section 122 (Leave in emergency or
special circumstances);
(g) a review of a transfer direction under section 140 (Review of
correctional patient awaiting transfer to mental health facility);
(h) a review of a transfer direction under section 141 (Review of
correctional patient transferred to mental health facility).
(2) The ACAT may be made up by a presidential member alone, but not
a non-presidential member alone.
Note The president of the ACAT is responsible for allocating members to the
ACAT for an application (see ACT Civil and Administrative Tribunal Act
2008, s 89).
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ACAT procedural matters
Section 186
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186 When ACAT must be constituted by more members
(1) This section applies to a proceeding on any of the following:
(a) a mental health order;
(b) a review of a mental health order under section 79 (Review of
mental health order);
(c) a forensic mental health order;
(d) a grant of leave under section 119 (Grant of leave for person
detained by ACAT);
(e) revocation of leave under section 120 (Revocation of leave
granted by ACAT);
(f) a review of a forensic mental health order under section 126
(Review of forensic mental health order);
(g) an electroconvulsive therapy order under section 157 (Making
of electroconvulsive therapy order);
(h) an emergency electroconvulsive therapy order under
section 162 (Making of emergency electroconvulsive therapy
order);
(i) a review of a person’s fitness to plead under section 176
(Review of certain people found unfit to plead);
(j) a recommendation under section 177 (Recommendations about
people with mental impairment) or section 178
(Recommendations about people with mental disorder or mental
illness) about a person who has a mental impairment, mental
disorder or mental illness;
(k) a review of detention under section 180 (Review of detention
under court order).
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Chapter 11
Section 187
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(2) The ACAT must include—
(a) a presidential member; and
(b) a non-presidential member with a relevant interest, experience
or qualification.
Note The president of the ACAT is responsible for allocating members to the
ACAT for an application (see ACT Civil and Administrative Tribunal Act
2008, s 89).
187 Applications
(1) This section applies to an application to the ACAT under this Act.
Note Requirements for applications to the ACAT are set out in the ACT Civil
and Administrative Tribunal Act 2008, s 10.
(2) The ACAT must, as soon as practicable but not longer than 24 hours
after the application is lodged, give a copy of the application to—
(a) the public advocate; and
(b) if the subject person is a child—the CYP director-general.
188 Notice of hearing
(1) At least 3 days before the ACAT holds a hearing in relation to a matter
under this Act, the ACAT—
(a) must give written notice of the hearing to the following people:
(i) if the subject person is not required to appear by a subpoena
under the ACT Civil and Administrative Tribunal Act 2008,
section 41 for a reason other than because section 192 (3)
(Subpoena to appear in person) applies in relation to the
person—the subject person;
(ii) the representative of the subject person (if any);
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ACAT procedural matters
Section 188
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(iii) if the subject person is a child—
(A) each person with parental responsibility for the child
under the Children and Young People Act 2008,
division 1.3.2 (Parental responsibility); and
(B) the CYP director-general;
(iv) if the subject person has a guardian under the Guardianship
and Management of Property Act 1991—the guardian;
(v) if the subject person has an attorney under the Powers of
Attorney Act 2006—the attorney;
(vi) if the subject person is referred to the ACAT under section
35 (Applications by referring officers—assessment
order)—the referring officer;
(vii) the applicant (if any);
(viii) if the hearing is on a proceeding on a mental health order,
a forensic mental health order, or a review required under
section 180 (2) (Review of detention under court order),
for which there is a registered affected person for the
person—
(A) the registered affected person; and
(B) the victims of crime commissioner;
(ix) the public advocate;
(x) the chief psychiatrist;
(xi) the care coordinator;
(xii) the director-general of the administrative unit that has
responsibility for providing care, support and protection
for people with a mental disorder; and
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Section 188
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(b) may give written notice to anyone else the ACAT considers
appropriate.
Example—par (b)
an official visitor
(2) Subsection (1) does not apply to a matter under this Act if—
(a) the chief psychiatrist gives the ACAT written notice that the
chief psychiatrist believes on reasonable grounds that anything
to do with the notification process is likely to substantially
increase—
(i) the risk to the subject person’s health or safety; or
(ii) the risk of serious harm to others; and
(b) a presidential member of the ACAT is satisfied that the risks
mentioned in paragraph (a) make the giving of notice under
subsection (1) undesirable for the matter; and
(c) the ACAT—
(i) tells the public advocate that notice under subsection (1)
has not been given; and
(ii) gives the public advocate a copy of the written notice
mentioned in paragraph (a).
(3) Also, subsection (1) does not apply in relation to a hearing to be held
for any of the following:
(a) the making of an emergency assessment order under section 39;
(b) a review required under section 79 (3) (Review of mental health
order);
(c) an application under section 85 (2) or (4) (Authorisation of
involuntary detention);
(d) a review required under section 126 (5) (Review of forensic
mental health order);
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Section 189
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(e) the making of an emergency electroconvulsive therapy order
under section 162 (Making of emergency electroconvulsive
therapy order);
(f) a review required under section 182 (2) (Review of conditions
of release).
Note Requirements in relation to hearings are set out in the ACT Civil and
Administrative Tribunal Act 2008, div 5.4. Those requirements apply
unless this Act provides otherwise.
189 Directions to registrar
(1) After considering an assessment of the subject person for a
proceeding, but before holding an inquiry or review, the president of
the ACAT may give to the registrar the directions the president
considers appropriate to—
(a) define and limit the relevant matters in the proceeding,
including—
(i) the alternative treatments, programs and other services that
are available and may be appropriate for the subject person;
and
(ii) the evidence that appears to be relevant to the proper
disposition of the matter; and
(iii) any unusual or urgent factors requiring special attention;
and
(b) ensure all necessary measures are taken to allow the inquiry or
review to proceed as quickly as possible, including ensuring
that—
(i) all relevant particulars have been provided; and
(ii) people who may be entitled to appear and give evidence in
the proceeding have been notified, the people’s availability
confirmed and any related matters requiring special
attention have been dealt with; and
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Section 190
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(iii) people who may wish to apply for leave to appear and give
evidence in the proceeding have been notified; and
(iv) people not entitled to appear in the proceeding but who
may be interested in making written submissions about the
matter have been given an opportunity to do so; and
(v) issues (if any) that may be decided before the inquiry or
review have been identified.
(2) However, the president of the ACAT must not give a direction under
subsection (1) in a proceeding in relation to—
(a) the treatment, care or support, control, rehabilitation and
protection of a person found unfit to plead; or
(b) the treatment, care or support, control, rehabilitation and
protection of a person found not guilty of a criminal offence
because of mental impairment; or
(c) a request by a court to provide advice in relation to the
sentencing of a person before the court.
190 Appearance
(1) The following people may appear and give evidence at the hearing of
a proceeding:
(a) the person (the subject person) who is the subject of the
proceeding;
(b) if the subject person is a child—
(i) each person with parental responsibility for the child under
the Children and Young People Act 2008, division 1.3.2
(Parental responsibility); and
(ii) the CYP director-general;
(c) if the subject person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
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Section 190
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(d) if the subject person has an attorney under the Powers of
Attorney Act 2006—the attorney;
(e) if the subject person has a nominated person—the nominated
person;
(f) the applicant (if any);
(g) if the subject person is referred to the ACAT under section 35
(Applications by referring officers—assessment order)—the
referring officer;
(h) if the proceeding is on a mental health order, a forensic mental
health order, or a review required under section 180 (2) (Review
of detention under court order), for which there is a registered
affected person for the offence committed or alleged to have
been committed by the subject person—
(i) the registered affected person; and
(ii) the victims of crime commissioner;
(i) the public advocate;
(j) the chief psychiatrist;
(k) the director-general who has control of the administrative unit
to which responsibility for the provision of treatment, care and
protection for people with a mental disorder (other than people
with a mental illness) is allocated;
(l) the discrimination commissioner.
(2) Other people may appear and give evidence at the hearing with the
leave of the ACAT.
(3) This section does not prevent a person from making a written
submission to the ACAT in relation to a proceeding.
ACAT procedural matters
Chapter 11
Section 191
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191 Separate representation of children etc
(1) This section applies in relation to a proceeding if—
(a) the subject person is a child or a person the ACAT considers is
unable to represent themself; and
(b) the person is not separately represented; and
(c) the ACAT considers that the person should be separately
represented.
(2) The ACAT may, on its own initiative or on the application of a
person—
(a) adjourn the proceeding to allow the subject person to obtain
representation; and
(b) give reasonably necessary advice and assistance to the person to
enable the person to obtain representation.
192 Subpoena to appear in person
(1) This section applies if the ACAT is satisfied that it is necessary for
the subject person to be present at the hearing of the proceeding.
(2) The ACAT may require the person to appear at the hearing by
subpoena given under the ACT Civil and Administrative Tribunal
Act 2008, section 41.
(3) However, the ACAT must not require the person to appear at the
hearing by subpoena if satisfied that the appearance of the subject
person before the ACAT is likely to increase substantially—
(a) any risk to the subject person’s health or safety; or
(b) the risk of serious harm to others.
Note If a person who is subpoenaed does not appear before the ACAT, the
ACAT may issue a warrant to arrest the person (see ACT Civil and
Administrative Tribunal Act 2008, s 42).
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ACAT procedural matters
Section 193
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193 Person subpoenaed in custody
(1) This section applies if the subject person—
(a) is given a subpoena under the ACT Civil and Administrative
Tribunal Act 2008, section 41; and
(b) is in the custody of another person.
(2) The ACAT may order the other person ensure that the subject person
appears before the ACAT in accordance with the subpoena.
194 Hearings to be in private
(1) A hearing of a proceeding in relation to a subject person must be held
in private.
(2) However, a hearing of a proceeding in relation to a subject person
who is not a child may be held in public if—
(a) the subject person asks for the hearing to be held in public; or
(b) the ACAT orders the hearing be held in public.
(3) A private hearing is taken to be a hearing to which the ACT Civil and
Administrative Tribunal Act 2008, section 39 (Hearings in private or
partly in private) applies.
Note Requirements for keeping private hearings secret are set out in the ACT
Civil and Administrative Tribunal Act 2008, s 40.
195 Who is given a copy of the order?
(1) The ACAT must give a copy of an ACAT order to the following
people:
(a) the subject person;
(b) if the subject person has a representative—the representative;
(c) if the subject person is a child—each person with parental
responsibility for the child under the Children and Young People
Act 2008, division 1.3.2 (Parental responsibility);
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Section 195
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(d) if the subject person has a guardian—the guardian;
(e) if the subject person has made a power of attorney under the
Powers of Attorney Act 2006—the attorney under the power of
attorney;
(f) the public advocate;
(g) if the subject person is referred to the ACAT under section 35
(Applications by referring officers—assessment order)—the
referring officer;
(h) if the subject person is referred to the ACAT under section 94
(Applications for forensic mental health orders—detainees
etc)—
(i) the chief psychiatrist; and
(ii) the corrections director-general.
(i) if the person was ordered to submit to the jurisdiction of the
ACAT by a court—the court;
(j) if the order requires the person to be admitted to a facility—the
person in charge of the facility;
(k) anyone else ordered by the ACAT;
(l) if the subject person has a nominated person—the nominated
person.
(2) The ACAT must also give a copy of the following orders of the
ACAT to the chief psychiatrist:
(a) a psychiatric treatment order;
(b) a restriction order in relation to a person subject to a psychiatric
treatment order;
(c) a forensic psychiatric treatment order;
(d) an electroconvulsive therapy order;
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Section 195
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(e) an emergency electroconvulsive therapy order.
(3) The ACAT must also give a copy of the following orders of the
ACAT to the care coordinator:
(a) a community care order;
(b) a restriction order in relation to a person subject to a community
care order;
(c) a forensic community care order.
(4) The ACAT must give a copy of an emergency electroconvulsive
therapy order to the people mentioned in subsection (1) and (2) in
relation to the order within 24 hours after the order is made.
Note For how documents may be served, see the Legislation Act, pt 19.5.
Administration
Chapter 12
Chief psychiatrist and mental health officers
Part 12.1
Section 196
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Chapter 12 Administration
Part 12.1 Chief psychiatrist and mental
health officers
196 Chief psychiatrist
(1) The Minister must appoint a public servant as Chief Psychiatrist.
Note 1 For the making of appointments (including acting appointments), see
Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular provision of a
law (see Legislation Act, s 7 (3)) and an appointment may be made by
naming a person or nominating the occupant of a position (see Legislation
Act, s 207).
(2) A person is not eligible for appointment as the chief psychiatrist
unless the person is a psychiatrist.
197 Functions
The chief psychiatrist has the following functions:
(a) to provide treatment, care or support, rehabilitation and
protection for persons who have a mental illness;
(b) to make reports and recommendations to the Minister with
respect to matters affecting the provision of treatment, care or
support, control, accommodation, maintenance and protection
for persons who have a mental illness;
(c) to make guidelines for mental health facilities, mental health
professionals or anyone else exercising a function under this
Act, in relation to matters under this Act;
(d) any other function given to the chief psychiatrist under this Act.
Chapter 12
Administration
Part 12.1
Chief psychiatrist and mental health officers
Section 198
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198 Approved code of practice
(1) The chief psychiatrist may approve a code of practice to provide
guidance on assessing whether a person has decision-making
capacity.
Note Power given under an Act to make a statutory instrument (including a
code of practice) includes power to amend or repeal the instrument (see
Legislation Act, s 46 (1)).
(2) An approved code of practice may apply, adopt or incorporate an
instrument as in force from time to time.
(3) An approved code of practice is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
198A Chief psychiatrist may make guidelines
(1) The chief psychiatrist may make guidelines for a mental health
facility, mental health professional or anyone else exercising a
function under this Act, in relation to any matter under this Act.
Note 1 A reference to an Act includes a reference to the statutory instruments
made or in force under the Act, including any regulation (see Legislation
Act, s 104).
Note 2 The function of making guidelines under this section must not be
delegated (see s 200 (2) (b)).
(2) A guideline must include a statement about how the guideline
is consistent with—
(a) the objects and principles of this Act; and
(b) human rights.
(3) If a guideline relates to a function under this Act exercised by a police
officer or an authorised ambulance paramedic, the chief psychiatrist
must consult the chief police officer or the chief officer (ambulance
service) before making the guideline.
Administration
Chapter 12
Chief psychiatrist and mental health officers
Part 12.1
Section 199
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(4) A mental health facility conducted by, or operating under an
agreement with, the Territory must comply with a guideline that
applies to the facility.
(5) A person employed or engaged at a mental health facility mentioned
in subsection (4) must comply with a guideline that applies to the
facility.
(6) A person, other than a person mentioned in subsection (5), exercising
a function under this Act in relation to a matter for which a guideline
has been made must consider the guideline in the exercise of the
function.
(7) A guideline may apply, adopt or incorporate a law of another
jurisdiction or an instrument, as in force from time to time.
Note A reference to an instrument includes a reference to a provision of an
instrument (see Legislation Act, s 14 (2)).
(8) The Legislation Act, section 47 (6) does not apply in relation to a law
or an instrument mentioned in subsection (7).
Note A law or an instrument applied, adopted or incorporated under s (7) does
not need to be notified under the Legislation Act because s 47 (6) does
not apply (see Legislation Act, s 47 (7)).
(9) A guideline is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
(10) In this section:
law of another jurisdiction—see the Legislation Act, section 47 (10).
199 Ending appointment—chief psychiatrist
(1) The Minister may end the appointment of the chief psychiatrist—
(a) for misbehaviour; or
(b) for physical or mental incapacity, if the incapacity substantially
affects the exercise of the person’s functions.
Chapter 12
Administration
Part 12.1
Chief psychiatrist and mental health officers
Section 200
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(2) The Minister must end the appointment of the chief psychiatrist if the
chief psychiatrist stops being eligible to hold the office of chief
psychiatrist.
200 Delegation by chief psychiatrist
(1) The chief psychiatrist may delegate the chief psychiatrist’s functions
under this Act to a psychiatrist who is a public employee or is engaged
by the Territory.
(2) However, the following functions must not be delegated:
(a) granting leave under section 122 (Leave in emergency or special
circumstances);
(b) making guidelines under section 198A (Chief psychiatrist may
make guidelines).
Note For the making of delegations and the exercise of delegated functions,
see Legislation Act, pt 19.4.
201 Mental health officers
(1) The chief psychiatrist may appoint a person as a mental health officer.
Note For laws about appointments, see the Legislation Act, pt 19.3.
(2) A person is not eligible for appointment as a mental health officer
unless the person is a nurse, nurse practitioner, psychologist,
occupational therapist or social worker.
(3) In this section:
occupational therapist means a person registered under the Health
Practitioner Regulation National Law (ACT) to practise in the
occupational therapy profession (other than as a student).
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Chief psychiatrist and mental health officers
Part 12.1
Section 202
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psychologist means a person registered under the Health Practitioner
Regulation National Law (ACT) to practise in the psychology
profession (other than as a student).
social worker means a person with a social work qualification that
provides eligibility for membership of the Australian Association of
Social Workers.
202 Functions of mental health officers
The functions of a mental health officer for this Act are the functions
that the chief psychiatrist directs.
Note Function includes authority, duty and power (see Legislation Act, dict,
pt 1).
203 Identity cards for mental health officers
(1) The director-general must give a mental health officer an identity card
that states the person is a mental health officer for this Act and
shows—
(a) the name of the person; and
(b) a recent photograph of the person.
(2) A person commits an offence if—
(a) the person was appointed as a mental health officer; and
(b) the person ceases to be a mental health officer; and
(c) the person does not return the person’s identity card to the
director-general as soon as practicable (but within 7 days) after
the day the person ceases to be a mental health officer.
Maximum penalty: 1 penalty unit.
(3) An offence against subsection (2) is a strict liability offence.
Chapter 12
Administration
Part 12.2
Care coordinator
Section 204
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Part 12.2 Care coordinator
204 Care coordinator
(1) The Minister must appoint a public servant as care coordinator.
Note 1 For the making of appointments (including acting appointments), see
Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular provision of a
law (see Legislation Act, s 7 (3)) and an appointment may be made by
naming a person or nominating the occupant of a position (see Legislation
Act, s 207).
(2) The Minister may only appoint a person as care coordinator if
satisfied that the person has the training, experience and personal
qualities necessary to exercise the care coordinator’s functions.
(3) An appointment is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
205 Functions
The care coordinator has the following functions:
(a) to coordinate the provision of treatment, care or support to
people with a mental disorder in accordance with community
care orders made by the ACAT;
(b) to coordinate the provision of appropriately trained people for
the treatment, care or support of people with a mental disorder
who are subject to community care orders;
(c) to coordinate the provision of appropriate residential or
detention facilities for people with a mental disorder in relation
to whom any of the following orders are in force:
(i) a community care order;
Administration
Chapter 12
Care coordinator
Part 12.2
Section 206
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(ii) a restriction order with a community care order;
(iii) a forensic community care order;
(d) to coordinate the provision of medication and anything else
required to be done for people with a mental disorder in
accordance with community care orders and restriction orders
made by the ACAT;
(e) to make reports and recommendations to the Minister about
matters affecting the provision of treatment, care or support,
control, accommodation, maintenance and protection for people
with a mental disorder;
(f) any other function given to the care coordinator under this Act.
206 Ending appointment—care coordinator
(1) The Minister may end the appointment of the care coordinator—
(a) for misbehaviour; or
(b) for physical or mental incapacity, if the incapacity substantially
affects the exercise of the person’s functions.
(2) The Minister must end the appointment of the care coordinator if the
care coordinator stops being eligible to hold the office of care
coordinator.
207 Delegation by care coordinator
(1) The care coordinator may delegate the care coordinator’s functions
under this Act to anyone else.
Note For the making of delegations and the exercise of delegated functions,
see Legislation Act, pt 19.4.
Chapter 12
Administration
Part 12.2
Care coordinator
Section 207
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(2) However—
(a) the function of granting leave under section 122 (Leave in
emergency or special circumstances) must not be delegated; and
(b) the care coordinator may delegate a function to a person only if
the care coordinator is satisfied that the person has the training,
experience and personal qualities necessary to exercise the
function.
Administration
Chapter 12
Official visitors
Part 12.3
Section 208
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Part 12.3 Official visitors
Note At least 1 official visitor must be appointed for this Act under the Official
Visitor Act 2012 (the OV Act).
The OV Act sets out the functions of official visitors which includes
visiting visitable places, handling complaints from entitled people and
reporting on those matters.
This part defines what is an entitled person and a visitable place for the
OV Act. This part also prescribes other matters for the OV Act.
208 Meaning of official visitor etc
In this Act:
entitled person means a person—
(a) receiving treatment, care or support for mental disorder or a
mental illness—
(i) at a visitable place; or
(ii) at a place other than a visitable place under an order under
this Act; or
(b) prescribed by regulation.
official visitor, for a visitable place—see the Official Visitor
Act 2012, section 6.
visitable place means—
(a) a mental health facility; or
(b) a long-term residential accommodation facility or respite facility
at which a person receiving treatment, care or support for mental
disorder or a mental illness may stay; or
Chapter 12
Administration
Part 12.3
Official visitors
Section 209
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(c) a place in a correctional centre where a detainee is receiving
treatment or care for mental disorder or a mental illness for the
period in which the treatment, care or support is given to the
detainee.
Note A visitable place mentioned in par (c) is also a visitable place for
an official visitor under the Corrections Management Act 2007 (see
that Act, s 57).
209 Appointment of official visitors—additional suitability
requirement
A person must not be appointed as an official visitor for a visitable
place unless the person—
(a) is a legal practitioner who has not less than 5 years practising
experience; or
(b) is a medical practitioner; or
(c) has been nominated by a body representing consumers of mental
health services; or
(d) has experience and skill in the care of persons with a mental
disorder or mental illness.
211 Official visitor’s functions
Without limiting the Official Visitor Act 2012, section 14 (Official
visitor functions), an official visitor for a visitable place must enquire
into—
(a) the adequacy of services provided at the visitable place for the
assessment and treatment of people with mental disorder or a
mental illness; and
(b) the appropriateness and standard of facilities at the visitable
place for the recreation, occupation, education, training and
rehabilitation of people receiving treatment, care or support for
mental disorder or a mental illness; and
Administration
Chapter 12
Official visitors
Part 12.3
Section 213
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(c) the extent to which people receiving treatment, care or support
for mental disorder or a mental illness at the visitable place are
being provided the best possible treatment, care or support
appropriate to their needs in the least possible restrictive
environment and least possible intrusive manner consistent with
the effective giving of that treatment, care or support; and
(d) any other matter that the official visitor considers appropriate.
Note For principles that must be taken into account when exercising a function
under this Act, see s 6.
213 Notice to official visitor of detainee receiving mental
health treatment, care or support in correctional centre
(1) This section applies if a detainee in a correctional centre is receiving
treatment, care or support for mental disorder or a mental illness in a
visitable place in a correctional centre.
(2) The doctor for the correctional centre must give an official visitor for
the visitable place written notice that a detainee is receiving
treatment, care or support for mental disorder or a mental illness in
the visitable place as soon as practicable, but not later than 24 hours
after the detainee starts receiving treatment, care or support in the
place.
Note A visitable place in a correctional centre is also a visitable place for an
official visitor under the Corrections Management Act 2007 (see that Act,
s 57).
(3) In this section:
doctor, for a correctional centre, means the doctor appointed under
the Corrections Management Act 2007, section 21 (1) for the centre.
Chapter 12
Administration
Part 12.3
Official visitors
Section 214
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214 Complaint about treatment, care or support provided at
place other than visitable place
(1) An entitled person may make a complaint to an official visitor for a
visitable place under the Official Visitor Act 2012, section 22 about
treatment, care or support for mental disorder or a mental illness that
is—
(a) wholly or partly funded by the Territory; and
(b) provided at a place other than the visitable place.
(2) The official visitor may—
(a) investigate the complaint; and
(b) visit the place where the service is provided.
(3) However, the official visitor may only visit a place that is not a
visitable place—
(a) with the entitled person’s consent; and
(b) after giving the owner of, or entity operating, the place at least
24 hours written notice; and
(c) at a reasonable time unless the director-general otherwise
consents.
(4) For subsection (3) (a), an entitled person consents to a visit to a place
by an official visitor if—
(a) the official visitor has the entitled person’s—
(i) written consent; or
(ii) oral consent, if a written record of the consent is made by
a person who heard the consent being given; or
(b) the official visitor—
(i) has taken reasonable steps to find out if the entitled person
consents; and
Administration
Chapter 12
Official visitors
Part 12.3
Section 214
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(ii) reasonably believes the entitled person may not be able to
make a decision about consent or communicate that
decision; and
(iii) reasonably believes that a visit to the place is necessary and
appropriate to allow the official visitor to exercise the
official visitor’s functions under this Act and the Official
Visitor Act 2012; and
(iv) the entitled person has not told, or otherwise indicated to,
the official visitor that the person does not consent.
(5) If subsection (4) (b) applies and an official visitor visits a place, the
official visitor must, as soon as practicable, take reasonable steps to
make the entitled person aware that the place was visited.
Chapter 12
Administration
Part 12.4
Coordinating director-general
Section 215
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Part 12.4 Coordinating director-general
215 Coordinating director-general
The Chief Minister may appoint a director-general to be a
coordinating director-general.
Note 1 For the making of appointments (including acting appointments), see the
Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular provision of a
law (see Legislation Act, s 7 (3)) and an appointment may be made by
naming a person or nominating the occupant of a position (see Legislation
Act, s 207).
216 Functions of coordinating director-general
A coordinating director-general has the function of working with
other government agencies to promote cooperation in achieving the
objects of this Act and to coordinate activities undertaken by agencies
that relate to the objects.
217 Coordinating director-general policies and operating
procedures
(1) The coordinating director-general may make policies and operating
procedures, consistent with this Act, for the effective and efficient
management or operation of any administrative function under this
Act.
(2) A person exercising an administrative function under this Act must
comply with policies and operating procedures.
Administration
Chapter 12
Coordinating director-general
Part 12.4
Section 217
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(3) A policy or operating procedure made under subsection (1) is a
notifiable instrument.
Note 1 A notifiable instrument must be notified under the Legislation Act.
Note 2 The power to make an instrument includes the power to amend or repeal
the instrument. The power to amend or repeal the instrument is
exercisable in the same way, and subject to the same conditions, as the
power to make the instrument (see Legislation Act, s 46).
Chapter 12
Administration
Part 12.5
Sharing information—government agencies
Section 218
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Part 12.5 Sharing information—
government agencies
218 Definitions—pt 12.5
In this part:
information sharing entity—each of the following is an information
sharing entity:
(a) the director-general;
(b) the CYP director-general;
(c) the corrections director-general;
(d) the director-general responsible for the Disability Services
Act 1991;
(e) the director-general responsible for the Health Act 1993;
(f) the chief police officer;
(g) the chief officer (ambulance service);
(h) an agency of another jurisdiction approved by the
director-general under section 221.
information sharing protocol—see section 219.
relevant information means information needed for the safe and
effective care of a person who has, or may have, a mental illness or
mental disorder.
Administration
Chapter 12
Sharing information—government agencies
Part 12.5
Section 219
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219 Information sharing protocol
(1) An information sharing entity may enter into an arrangement (an
information sharing protocol) with another information sharing
entity to allow each entity—
(a) to request and receive relevant information held by each other
entity; and
(b) to disclose relevant information to each other entity.
(2) An information sharing entity may share relevant information under
an information sharing protocol only if satisfied, and to the extent, it
is reasonably necessary for the safe and effective treatment, care or
support of the person to whom the information relates.
(3) Relevant information about a person in relation to whom a forensic
mental health order is in force may be shared under an information
sharing protocol without the consent of the person.
(4) If an information sharing entity shares relevant information without
the consent of the person to whom the information relates, the entity
must tell the following people in writing about the information shared
and reasons for sharing the information:
(a) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(b) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(c) if the person has a nominated person—the nominated person.
Chapter 12
Administration
Part 12.5
Sharing information—government agencies
Section 220
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(5) Subsection (4) applies to information shared about any person other
than information about a detainee or young detainee that is shared—
(a) because of a request for information under—
(i) the Corrections Management Act 2007, section 77 (Health
reports); or
(ii) the Children and Young People Act 2008, section 186
(Health reports); or
(b) between the CYP director-general, the corrections
director-general and the director-general.
220 Information sharing guidelines
(1) The Minister may make guidelines about the operation of information
sharing protocols.
(2) A guideline is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to the
Legislative Assembly, under the Legislation Act.
221 Information sharing—approval of agency
(1) The director-general may approve an agency from another
jurisdiction as an information sharing entity for this part.
(2) An approval is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
Private psychiatric facilities
Chapter 13
Preliminary
Part 13.1
Section 222
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Chapter 13 Private psychiatric facilities
Part 13.1 Preliminary
222 Definitions—ch 13
In this chapter:
inspector means an inspector appointed under section 234.
licence means a licence issued under section 226.
licensed premises means the premises in relation to which a licence
is issued.
licensee means a person who holds a licence issued under
section 226.
private psychiatric facility means a hospital or other facility for the
treatment, care, support, rehabilitation or accommodation of people
with a mental illness other than—
(a) a recognised hospital within the meaning of the Health
Insurance Act 1973 (Cwlth); or
(b) a facility conducted by the Territory.
Chapter 13
Private psychiatric facilities
Part 13.2
Licences
Section 223
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Part 13.2 Licences
223 Meaning of eligible person—pt 13.2
(1) For this part, a person is an eligible person if—
(a) the Minister is satisfied on reasonable grounds that the person is
a suitable person to hold a licence; and
(b) if the person is an individual—the individual has not been
involved in a disqualifying act; and
(c) if the person is in a partnership that is to operate a private
psychiatric facility—each person in the partnership has not been
involved in a disqualifying act; and
(d) if the person is a corporation—the corporation and each person
involved in the management of the corporation has not been
involved in a disqualifying act.
(2) In this section:
disqualifying act—a person has been involved in a disqualifying act
if the person has in the last 5 years, whether in the ACT or
elsewhere—
(a) contravened a provision of this Act; or
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any
regulation (see Legislation Act, s 104).
(b) contravened a condition of a licence issued under this Act; or
(c) been convicted, or found guilty, of an offence involving fraud or
dishonesty, or punishable by imprisonment for at least 1 year; or
(d) been bankrupt or personally insolvent; or
Note Bankrupt or personally insolvent—see the Legislation Act,
dictionary, pt 1.
Private psychiatric facilities
Chapter 13
Licences
Part 13.2
Section 224
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(e) been involved in the management of a corporation when the
corporation became the subject of a winding-up order or a
controller or administrator was appointed.
224 Licence—requirement to hold
(1) A person commits an offence if the person—
(a) operates a private psychiatric facility; and
(b) does not hold a licence to operate the facility.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person commits an offence if—
(a) the person is a partner in a partnership; and
(b) the partnership operates a private psychiatric facility; and
(c) no partner in the partnership holds a licence to operate the
facility.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
225 Licence—application
(1) A person (the applicant) may apply to the Minister for a licence to
operate a private psychiatric facility.
(2) The application must—
(a) be in writing; and
(b) state the applicant’s name and address; and
(c) if the applicant is a partner in a partnership that is to operate the
facility—state the name and address of each partner in the
partnership; and
Chapter 13
Private psychiatric facilities
Part 13.2
Licences
Section 226
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(d) if the applicant is a corporation—state the name and address of
each director of the corporation; and
(e) state the address of the premises where the facility is to be
operated.
Note A fee may be determined under s 272 for an application.
(3) The Minister may, in writing, ask the applicant to give the Minister
additional information or documents that the Minister reasonably
needs to decide the application.
(4) If the applicant does not comply with a request under subsection (3),
the Minister may refuse to consider the application further.
226 Licence—decision on application
(1) On application under section 225, the Minister may issue a licence if
satisfied on reasonable grounds that—
(a) the applicant is an eligible person; and
(b) the applicant complies with, and is likely to continue to comply
with, the requirements of this Act; and
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any
regulation (see Legislation Act, s 104).
(c) the premises where the facility is to be operated are suitable
premises for the operation of a private psychiatric facility.
(2) A licence must include a condition—
(a) about the maximum number of people for whom treatment, care
or support may be provided at the licensed premises; and
(b) that a licensee must comply with a guideline under section 198A
that applies to the licensed premises.
Private psychiatric facilities
Chapter 13
Licences
Part 13.2
Section 227
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(3) A licence may also include conditions about the following:
(a) the minimum number of staff to be employed at the licensed
premises;
(b) the qualifications of the staff;
(c) the treatment, care or support that may be provided at the
licensed premises;
(d) the health and safety of people at the licensed premises;
(e) the insurance to be carried by the licensee against any liability
arising from the operation of a private psychiatric facility at the
licensed premises;
(f) the recreational and educational facilities to be provided at the
licensed premises;
(g) the management of the licensed premises;
(h) the keeping of records about the licensed premises and any
person who is treated in or from the premises;
(i) anything else that the Minister is satisfied on reasonable grounds
is appropriate.
227 Licence—term and renewal of licence
(1) A licence is issued for the period of up to 3 years stated in the licence.
(2) A licensee may apply, in writing, to the Minister to renew the licence.
Note A fee may be determined under s 272 for an application.
(3) The Minister may renew the licence for a period of up to 3 years if
satisfied on reasonable grounds of the matters mentioned in
section 225 (2) in relation to the applicant and the premises.
Chapter 13
Private psychiatric facilities
Part 13.2
Licences
Section 228
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228 Licence—transfer of licence
(1) A licensee may apply to the Minister to transfer a licence to someone
else (the proposed new licensee).
(2) The application must—
(a) be in writing; and
(b) state the proposed new licensee’s name and address; and
(c) if the proposed new licensee is in a partnership—state the name
and address of each partner in the partnership; and
(d) if the proposed new licensee is a corporation—state the name
and address of each director of the corporation.
Note A fee may be determined under s 272 for an application.
(3) The Minister may, in writing, ask the proposed new licensee to give
the Minister additional information or documents that the Minister
reasonably needs to decide the application.
(4) If the proposed new licensee does not comply with a request under
subsection (3), the Minister may refuse to consider the application
further.
(5) The Minister may transfer the licence if satisfied on reasonable
grounds that—
(a) the proposed new licensee is an eligible person; and
(b) the proposed new licensee complies with, and is likely to
continue to comply with, the requirements of this Act.
Note A reference to an Act includes a reference to the statutory instruments
made or in force under the Act, including any regulation (see Legislation
Act, s 104).
(6) The Minister may amend the licence if satisfied on reasonable
grounds that the amendment is in the best interests of people for
whom treatment, care or support is provided under the licence.
Private psychiatric facilities
Chapter 13
Licences
Part 13.2
Section 229
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229 Licence—amendment initiated by Minister
(1) The Minister may, by written notice (an amendment notice), amend
a licence on the Minister’s own initiative if satisfied on reasonable
grounds that the amendment is in the best interests of people for
whom treatment, care or support is provided under the licence.
(2) However, the Minister may amend a licence on the Minister’s own
initiative only if—
(a) the Minister gives the licensee written notice of the proposed
amendment (a proposed amendment notice); and
(b) the proposed amendment notice states that written comments on
the proposal may be made to the Minister before the end of a
stated period of at least 28 days after the day the notice is given
to the licensee; and
(c) the Minister considers any comments made in response to the
proposed amendment notice.
(3) Subsection (2) does not apply if the licensee agrees, in writing, to the
amendment.
(4) The amendment takes effect on—
(a) the day the amendment notice is given to the licensee; or
(b) a later day stated in the notice.
230 Licence—amendment on application by licensee
(1) A licensee may apply to the Minister to amend a licence.
Note A fee may be determined under s 272 for an application.
(2) The Minister must, not later than 28 days after receiving the
application—
(a) decide the application for amendment; and
(b) give the licensee written notice of the decision.
Chapter 13
Private psychiatric facilities
Part 13.2
Licences
Section 231
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(3) The Minister may amend the licence if satisfied on reasonable
grounds that the amendment is in the best interests of people for
whom treatment, care or support is provided under the licence.
(4) The amendment takes effect on—
(a) the day the written notice of amendment is given to the licensee;
or
(b) a later day stated in the notice.
231 Licence—surrender
(1) A licensee may surrender a licence by giving the Minister—
(a) written notice of the surrender; and
(b) the licence.
(2) A surrender takes effect on—
(a) the day the notice is given to the Minister; or
(b) a later day stated in the notice.
232 Licence—cancellation by notice
(1) The Minister may, by written notice (a cancellation notice), cancel a
licence if satisfied on reasonable grounds that the licensee has failed
to comply with a condition of the licence.
(2) However, the Minister may cancel a licence only if—
(a) the Minister gives the licensee written notice of the proposed
cancellation (a proposed cancellation notice); and
(b) the proposed cancellation notice states that written comments on
the proposal may be made to the Minister before the end of a
stated period of at least 28 days after the day the notice is given
to the licensee; and
Private psychiatric facilities
Chapter 13
Licences
Part 13.2
Section 233
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(c) the Minister considers any comments made in response to the
proposed cancellation notice.
(3) Subsection (2) does not apply if the licensee agrees, in writing, to the
cancellation.
(4) The cancellation takes effect on—
(a) the day the cancellation notice is given to the licensee; or
(b) a later day stated in the cancellation notice.
233 Licence—emergency cancellation
(1) Despite section 232, the Minister may, by written notice (an
emergency cancellation notice), cancel a licence if satisfied on
reasonable grounds that circumstances exist in relation to the licence
that give rise to an immediate risk of harm to the health or safety of
people for whom treatment, care or support is provided under the
licence.
. (2) An emergency cancellation notice must state—
(a) the reasons for the cancellation; and
(b) the facts that form the basis for the reasons; and
(c) the details of the emergency cancellation.
Example—details
how and where the people who receive treatment, care or support under the
licence are to receive the treatment, care or support after the cancellation
(3) The cancellation takes effect on the day after the day the emergency
cancellation notice is given to the licensee.
Chapter 13
Private psychiatric facilities
Part 13.3
Private psychiatric facilities—enforcement
Section 234
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Part 13.3 Private psychiatric facilities—
enforcement
234 Appointment of inspectors
(1) The director-general may appoint a person as an inspector for this
chapter.
Note 1 For the making of appointments (including acting appointments), see the
Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular provision of a
law (see Legislation Act, s 7 (3)) and an appointment may be made by
naming a person or nominating the occupant of a position (see Legislation
Act, s 207).
(2) An inspector must exercise functions under this chapter in accordance
with the conditions of the appointment and any directions given to the
inspector by the chief psychiatrist.
235 Identity cards
(1) The director-general must give an inspector an identity card stating
the person’s name and that the person is an inspector.
(2) The identity card must show—
(a) a recent photograph of the inspector; and
(b) the card’s date of issue and expiry; and
(c) anything else prescribed by regulation.
(3) A person commits an offence if the person—
(a) stops being an inspector; and
(b) does not return the person’s identity card to the director-general
as soon as practicable (but not later than 7 days) after the day the
person stops being an inspector.
Maximum penalty: 1 penalty unit.
Private psychiatric facilities
Chapter 13
Private psychiatric facilities—enforcement
Part 13.3
Section 236
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236 Powers of inspection
(1) An inspector may, at any reasonable time, enter licensed premises and
do 1 or more of the following in relation to the premises or anything
at the premises:
(a) inspect the premises and equipment used at the premises in
connection with the treatment, care or support of a person;
(b) inspect any book, document or other record that is in the
possession of the occupier of the premises, or to which the
occupier has access, relating to the conduct of the private
psychiatric facility at the premises;
(c) require the occupier of the premises to give the inspector, within
a reasonable time, a copy of any information, book, document
or other record that is in the possession of the occupier, or to
which the occupier has access, relating to the conduct of the
private psychiatric facility at the premises.
Note The Legislation Act, s 170 deals with the application of the privilege
against self-incrimination.
(2) An inspector who enters licensed premises under subsection (1) is not
authorised to remain on the premises if, when asked to do so by the
occupier of the premises, the inspector does not show the inspector’s
identity card to the occupier.
(3) A person is not required to give records to an inspector under
subsection (1) (c) if, when asked to do so by the person, the inspector
does not show the inspector’s identity card to the person.
(4) In this section:
occupier, of licensed premises, includes—
(a) a person reasonably believed to be an occupier of the licensed
premises; and
(b) a person apparently in charge of the licensed premises.
Chapter 13
Private psychiatric facilities
Part 13.3
Private psychiatric facilities—enforcement
Section 237
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237 Failing to comply with requirement of inspector
A person commits an offence if—
(a) an inspector requires the person to give the inspector a copy of
any information, book, document or other record under
section 236 (1) (c); and
(b) the person fails to comply with the requirement, within the time
required.
Maximum penalty: 50 penalty units.
Mental health advisory council
Chapter 14
Section 238
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Chapter 14 Mental health advisory council
238 Establishment of mental health advisory council
The mental health advisory council is established.
239 Functions of mental health advisory council
The mental health advisory council has the following functions:
(a) advising the Minister about—
(i) emerging or urgent mental health issues; and
(ii) mental health service reforms; and
(iii) mental health policy; and
(iv) mental health legislative change; and
(v) anything else in relation to mental health requested by the
Minister;
(b) any other function given to the council under this Act.
240 Membership of mental health advisory council
(1) The mental health advisory council is made up of at least 5, and not
more than 7, members appointed by the Minister.
Note 1 For the making of appointments (including acting appointments), see the
Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular provision of a
law (see Legislation Act, s 7 (3)) and an appointment may be made by
naming a person or nominating the occupant of a position (see Legislation
Act, s 207).
Note 3 Certain Ministerial appointments require consultation with an Assembly
committee and are disallowable (see Legislation Act, div 19.3.3).
Chapter 14
Mental health advisory council
Section 241
page 250
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(2) In appointing members to the mental health advisory council, the
Minister must, unless it is not reasonably practicable, ensure that the
council includes—
(a) someone who is or has been a person with a mental disorder or
mental illness; and
(b) someone who is or has been a carer of a person with a mental
disorder or mental illness; and
(c) someone with experience or expertise in primary mental health;
and
(d) someone with current knowledge of scientific, evidence-based
mental health research and practice; and
(e) someone with experience or expertise in mental health
promotion and mental illness prevention and treatment, care or
support.
(3) A person must be appointed to the mental health advisory council for
not longer than 3 years.
Note A person may be reappointed to a position if the person is eligible to be
appointed to the position (see Legislation Act, s 208 and dict, pt 1,
def appoint).
241 Procedures of mental health advisory council
(1) Meetings of the mental health advisory council are to be held when
and where it decides.
(2) However, the mental health advisory council must meet at least once
each quarter.
(3) The mental health advisory council may conduct its proceedings
(including its meetings) as it considers appropriate.
(4) The mental health advisory council may publish its considerations as
it considers appropriate.
Interstate application of mental health laws
Chapter 15
Preliminary
Part 15.1
Section 242
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Chapter 15 Interstate application of mental
health laws
Part 15.1 Preliminary
242 Purpose—ch 15
The purpose of this chapter is to provide for—
(a) the apprehension of people who are subject to certain interstate
warrants or orders, or may otherwise be apprehended, under
mental health legislation; and
(b) the interstate transfer of people under mental health legislation;
and
(c) the treatment, care or support in the ACT of people subject to
mental health orders or similar orders made in other States; and
(d) the interstate operation of certain mental health orders.
243 Definitions—ch 15
In this chapter:
authorised officer means—
(a) an authorised ambulance paramedic; or
(b) a doctor; or
(c) a mental health officer; or
(d) a police officer.
community care service means a service in the ACT that provides
treatment, care or support for a person with a mental disorder who is
living in the community.
Chapter 15
Interstate application of mental health laws
Part 15.1
Preliminary
Section 243
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corresponding law—
(a) means a law of another State that provides for the treatment, care
or support of a person with a mental disorder or mental illness;
and
(b) includes a law of another State prescribed by regulation.
interstate authorised person means a person prescribed by
regulation.
interstate community care facility means a facility in another State
that, under a corresponding law, provides treatment, care or support
for a person with a mental disorder.
Note See s 9 (Meaning of mental disorder).
interstate community care service means a service in another State
that, under a corresponding law, provides treatment, care or support
for a person with a mental disorder who is living in the community.
interstate involuntary treatment order means an order made under a
corresponding law for the involuntary treatment of a person with a
mental disorder or mental illness at an interstate mental health facility
or in the community.
interstate mental health facility means a hospital or other mental
health facility in another State to which a person may be admitted
under a corresponding law for treatment, care or support for mental
illness.
interstate mental health service means a service in another State that,
under a corresponding law, provides treatment, care or support for a
person with mental illness who is living in the community.
interstate patient means a person who is subject to an interstate
involuntary treatment order.
mental health service means a service in the ACT that provides
treatment, care or support for a person with mental illness who is
living in the community.
Interstate application of mental health laws
Chapter 15
Preliminary
Part 15.1
Section 244
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244 Authority to enter into agreements
(1) The Minister may enter into an agreement with a Minister of another
State about any matter relating to the operation of this chapter or a
corresponding law.
(2) An agreement is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
245 Authorised officer and interstate authorised person may
exercise certain functions
(1) An authorised officer or an interstate authorised person may, in
relation to an interstate patient in the ACT, exercise any function
conferred on the officer or person under a corresponding law or under
an interstate involuntary treatment order.
(2) A regulation may impose limits on—
(a) the people who may act under this section; and
(b) the treatment that may be given or functions that may be
exercised under this section.
246 Medication for person being transferred
(1) A person being transferred under this chapter may be given
medication by an appropriately trained person if the appropriately
trained person believes on reasonable grounds that—
(a) giving the medication is in the best interests of the safe and
effective treatment, care or support of the person; and
(b) the medication has been prescribed by a doctor.
(2) Details about medication given under this section must be included in
the person’s record.
Chapter 15
Interstate application of mental health laws
Part 15.2
Apprehension of people in breach of certain orders
Section 247
page 254
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Part 15.2 Apprehension of people in
breach of certain orders
247 Apprehension of interstate patient in breach of interstate
involuntary treatment order
(1) An interstate patient who is in breach of an interstate involuntary
treatment order may be apprehended in the ACT if—
(a) the interstate patient would be subject to apprehension under a
corresponding law of the State that issued the interstate
involuntary treatment order for the patient; or
(b) a warrant or other document issued under a corresponding law
authorises the apprehension of the patient.
(2) A person may be apprehended under this section by—
(a) an authorised officer; or
(b) an interstate authorised person.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(3) A person who apprehends an interstate patient under this section must
as soon as reasonably practicable—
(a) tell the patient the reason for the apprehension; and
(b) ensure that the patient has adequate opportunity and assistance
to notify a relative or friend of the apprehension; and
(c) tell an interstate mental health facility in the State that issued the
interstate involuntary treatment order about the apprehension;
and
Interstate application of mental health laws
Chapter 15
Apprehension of people in breach of certain orders
Part 15.2
Section 248
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(d) transfer the patient to—
(i) an interstate mental health facility in the State that issued
the interstate involuntary treatment order for the patient; or
(ii) an approved mental health facility to determine whether
the patient requires treatment before being transferred.
248 Apprehension of person in breach of mental health order
or forensic mental health order
(1) A person (an ACT patient) who is in breach of a mental health order
or forensic mental health order may be apprehended in another State
if—
(a) the ACT patient would be subject to apprehension under this Act
if the patient were in the ACT; and
(b) the apprehension is allowed under a corresponding law of the
other State.
(2) The ACT patient may be apprehended in the other State by—
(a) an authorised officer; or
(b) an interstate authorised person.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(3) A person who apprehends an ACT patient under this section must as
soon as reasonably practicable—
(a) tell the patient the reason for the apprehension; and
(b) transfer the patient to—
(i) an approved mental health facility or approved community
care facility in the ACT; or
(ii) an interstate mental health facility to determine whether the
patient requires treatment before being transferred.
Chapter 15
Interstate application of mental health laws
Part 15.2
Apprehension of people in breach of certain orders
Section 248
page 256
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(4) As soon as reasonably practicable after an ACT patient is transferred
under subsection (3) (b) (i), the person in charge of the facility must—
(a) ensure that the patient has adequate opportunity and assistance
to notify a relative or friend of the apprehension and transfer;
and
(b) take all reasonable steps to tell at least 1 of the following of the
apprehension and transfer:
(i) if the patient has a nominated person—the nominated
person;
(ii) if the patient has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(iii) if the patient has an attorney under the Powers of Attorney
Act 2006—the attorney;
(iv) if a health attorney is involved in the treatment, care or
support of the patient—the health attorney;
(v) if the patient is a child—a person with parental
responsibility for the child under the Children and Young
People Act 2008.
Interstate application of mental health laws
Chapter 15
Transfer of certain people from ACT
Part 15.3
Section 249
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Part 15.3 Transfer of certain people from
ACT
249 Interstate transfer—person under psychiatric treatment
order or community care order
(1) This section applies if—
(a) a psychiatric treatment order or a community care order is in
force in relation to a person; and
(b) the person is receiving treatment, care or support under the
order—
(i) in an approved mental health facility or from a mental
health service; or
(ii) in an approved community care facility or from a
community care service.
(2) The relevant person may apply to the ACAT for an interstate transfer
order if the relevant person believes on reasonable grounds that the
ACAT could reasonably make the order under subsection (5).
(3) The ACAT must hear and decide the application as soon as
practicable.
(4) Before making an interstate transfer order in relation to a person, the
ACAT must take into account—
(a) the views and wishes of the person in relation to the proposed
order, so far as they can be found out; and
(b) as far as practicable, the views in relation to the proposed order
of the following:
(i) if the person has a nominated person—the nominated
person;
(ii) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
Chapter 15
Interstate application of mental health laws
Part 15.3
Transfer of certain people from ACT
Section 249
page 258
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(iii) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(iv) if a health attorney is involved in the treatment, care or
support of the person—the health attorney;
(v) if the person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility);
(vi) if the person has a carer—the carer.
(5) The ACAT may make an interstate transfer order if—
(a) the ACAT believes on reasonable grounds that the order is in the
best interests of the safe and effective treatment, care or support
of the person; and
(b) either—
(i) transferring the person to an interstate mental health
facility or interstate community care facility is allowed
under a corresponding law; or
(ii) transferring the responsibility to provide treatment, care or
support for the person to an interstate mental health service
or interstate community care service is allowed under a
corresponding law; and
(c) the person in charge of the interstate facility or service agrees to
the transfer.
(6) As soon as practicable after making an order under subsection (5), the
ACAT must—
(a) give a copy of the order to—
(i) the person; and
(ii) the chief psychiatrist; and
Interstate application of mental health laws
Chapter 15
Transfer of certain people from ACT
Part 15.3
Section 249
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(iii) the person in charge of the interstate mental health facility
or service; and
(b) as far as practicable, notify the people mentioned in
subsection (4) (b) that an order has been made.
(7) When the chief psychiatrist is given a copy of the order under
subsection (6), the chief psychiatrist must ensure that a copy of the
person’s record is given to the person in charge of the interstate
mental health facility or service.
(8) A person may be taken to an interstate mental health facility or service
under an order under subsection (5) by—
(a) an authorised officer; or
(b) an interstate authorised person.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(9) In this section:
interstate transfer order means an order to—
(a) transfer a person to an interstate mental health facility or an
interstate community care facility; or
(b) transfer the responsibility to provide treatment, care or support
for a person to an interstate mental health service or interstate
community care service.
relevant person, means—
(a) if a psychiatric treatment order is in force in relation to a
person—the chief psychiatrist; or
(b) if a community care order is in force in relation to a person—the
care coordinator.
Chapter 15
Interstate application of mental health laws
Part 15.3
Transfer of certain people from ACT
Section 250
page 260
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250 Interstate transfer—person under forensic psychiatric
treatment order or forensic community care order
(1) This section applies if—
(a) a forensic psychiatric treatment order or a forensic community
care order is in force in relation to a person; and
(b) the person is receiving treatment, care or support under the
order—
(i) in an approved mental health facility or from a mental
health service; or
(ii) in an approved community care facility or from a
community care service.
(2) The relevant person may apply to the ACAT for an interstate transfer
order if the relevant person believes on reasonable grounds that the
ACAT could reasonably make the order under subsection (5).
(3) The ACAT must hear and decide the application as soon as
practicable.
(4) Before making an interstate transfer order in relation to a person, the
ACAT must take into account—
(a) the views and wishes of the person in relation to the proposed
order, so far as they can be found out; and
(b) as far as practicable, the views in relation to the proposed order
of the following:
(i) if the person has a nominated person—the nominated
person;
(ii) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(iii) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
Interstate application of mental health laws
Chapter 15
Transfer of certain people from ACT
Part 15.3
Section 250
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(iv) if a health attorney is involved in the treatment, care or
support of the person—the health attorney;
(v) if the person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility);
(vi) if the person is a detainee, a person released on licence, or
a person serving a community-based sentence—the
corrections director-general;
(vii) if the person is covered by a bail order that includes a
condition that the person accept supervision under the Bail
Act 1992, section 25 (4) (e) or section 25A—the director-
general responsible for the supervision of the person under
the Bail Act 1992;
(viii) if the person is a child covered by a bail order that includes
a condition that the child accept supervision under the Bail
Act 1992, section 26 (2)—the CYP director-general;
(ix) if the person is a young detainee or a young offender
serving a community-based sentence—the CYP
director-general;
(x) if the person has a carer—the carer.
(5) The ACAT may make an interstate transfer order if—
(a) the ACAT believes on reasonable grounds that the proposed
order is in the best interests of the safe and effective treatment,
care or support of the person; and
(b) either—
(i) transferring the person to an interstate mental health
facility or interstate community care facility is allowed
under a corresponding law; or
Chapter 15
Interstate application of mental health laws
Part 15.3
Transfer of certain people from ACT
Section 250
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(ii) transferring the responsibility to provide treatment, care or
support for the person to an interstate mental health service
or interstate community care service is allowed under a
corresponding law; and
(c) the person in charge of the interstate facility or service agrees to
the transfer.
(6) As soon as practicable after making an order under subsection (5), the
ACAT must—
(a) give a copy of the order to—
(i) the person; and
(ii) the relevant person; and
(iii) the person in charge of the interstate facility or service; and
(b) as far as practicable, notify the people mentioned in
subsection (4) (b) that an order has been made.
(7) When the relevant person is given a copy of the order under
subsection (6), the relevant person must ensure that a copy of the
person’s record is given to the person in charge of the interstate
facility or service.
(8) A person may be taken to an interstate facility or service under an
order under subsection (5) by—
(a) an authorised officer; or
(b) an interstate authorised person.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(9) In this section:
interstate transfer order means an order to—
(a) transfer a person to an interstate mental health facility or an
interstate community care facility; or
Interstate application of mental health laws
Chapter 15
Transfer of certain people from ACT
Part 15.3
Section 251
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(b) transfer the responsibility to provide treatment, care or support
for a person to an interstate mental health service or interstate
community care service.
relevant person, means—
(a) if a forensic psychiatric treatment order is in force in relation to
a person—the chief psychiatrist; or
(b) if a forensic community care order is in force in relation to a
person—the care coordinator.
251 Transfer to interstate mental health facility—emergency
detention
(1) This section applies if—
(a) a person is detained under chapter 6 (Emergency detention); and
(b) the person is being assessed or receiving treatment, care or
support under that chapter.
(2) The chief psychiatrist may direct that the person be transferred to an
interstate mental health facility if—
(a) the chief psychiatrist believes on reasonable grounds that the
transfer is in the best interests of the safe and effective treatment,
care or support of the person; and
(b) transferring the person to an interstate mental health facility is
allowed under a corresponding law; and
(c) the person in charge of the interstate mental health facility
agrees to the transfer.
Chapter 15
Interstate application of mental health laws
Part 15.3
Transfer of certain people from ACT
Section 251
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(3) Before giving a direction under subsection (2), the chief psychiatrist
must—
(a) as far as practicable, notify the following that a direction under
this section is being considered:
(i) if the person has a nominated person—the nominated
person;
(ii) if the person has a guardian under the Guardianship and
Management of Property Act 1991—the guardian;
(iii) if the person has an attorney under the Powers of Attorney
Act 2006—the attorney;
(iv) if a health attorney is involved in the treatment, care or
support of the person—the health attorney;
(v) if the person is a child—each person with parental
responsibility for the child under the Children and Young
People Act 2008, division 1.3.2 (Parental responsibility);
(vi) if the person has a legal representative—the person’s legal
representative;
(vii) if the person has a carer—the carer; and
(b) take into account—
(i) the views and wishes of the person in relation to the
proposed direction, so far as they can be found out; and
(ii) as far as practicable, the views in relation to the proposed
direction of the people notified under paragraph (a).
(4) As soon as practicable after giving a direction under subsection (2),
the chief psychiatrist must—
(a) give a copy of the direction to—
(i) the person; and
Interstate application of mental health laws
Chapter 15
Transfer of certain people from ACT
Part 15.3
Section 252
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(ii) the person in charge of the interstate mental health facility;
and
(b) as far as practicable, notify the people mentioned in
subsection (3) (a) that a direction has been given; and
(c) ensure that a copy of the person’s record is given to the person
in charge of the interstate mental health facility.
(5) A person may be taken to an interstate mental health facility under a
direction under subsection (2) by—
(a) an authorised officer; or
(b) an interstate authorised person.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
252 Interstate transfer—when ACT order stops applying
If a person or responsibility for a person is transferred under this part,
the person stops being subject to a psychiatric treatment order or
community care order made under this Act if—
(a) the person is admitted to an interstate mental health facility or
an interstate community care facility; or
(b) the person is accepted into the care of an interstate mental health
service or an interstate community care service; or
(c) an interstate involuntary treatment order is made in relation to
the person.
Chapter 15
Interstate application of mental health laws
Part 15.4
Transfer of certain people to ACT
Section 253
page 266
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Part 15.4 Transfer of certain people to ACT
253 Transfer of interstate patient to approved mental health
facility
(1) An application may be made to the chief psychiatrist for an interstate
patient, who is subject to an interstate involuntary treatment order that
allows for detention at an interstate mental health facility, to transfer
the interstate patient to an approved mental health facility in the ACT.
(2) The chief psychiatrist may agree to the transfer if the chief
psychiatrist believes on reasonable grounds that the transfer to the
ACT is—
(a) in the best interests of the safe and effective treatment, care or
support of the interstate patient; and
(b) allowed under a corresponding law.
254 Transfer of responsibility to provide treatment, care or
support in the community for interstate patient
(1) An application may be made to the chief psychiatrist to transfer the
responsibility to provide treatment, care or support for an interstate
patient, who is subject to an interstate involuntary treatment order that
allows treatment in the community, to the chief psychiatrist.
(2) The chief psychiatrist may agree to the transfer if the chief
psychiatrist believes on reasonable grounds that the transfer of
responsibility is—
(a) in the best interests of the safe and effective treatment, care or
support of the interstate patient; and
(b) allowed under a corresponding law.
Interstate application of mental health laws
Chapter 15
Transfer of certain people to ACT
Part 15.4
Section 255
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255 Transfer of person apprehended in another State to
approved mental health facility
(1) A person apprehended in another State under a corresponding law
may be taken to an approved mental health facility in the ACT by an
authorised officer or interstate authorised person if the authorised
officer or person believes on reasonable grounds that being taken to
an approved mental health facility in the ACT is—
(a) in the best interests of the safe and effective treatment, care or
support of the person; and
(b) allowed under a corresponding law.
Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of
search and seizure).
(2) Chapter 6 (Emergency detention) applies in relation to a person who
is apprehended under this section, as if the person had been
apprehended under section 80 (Apprehension).
Chapter 15
Interstate application of mental health laws
Part 15.5
Interstate operation of certain orders
Section 256
page 268
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Part 15.5 Interstate operation of certain
orders
256 Mental health order relating to interstate person
(1) A mental health order under this Act may be made in relation to a
person even though the person does not usually live in the ACT, if—
(a) the facility or service providing treatment, care or support to the
person is located in the ACT; and
(b) the order is allowed under a corresponding law of the State in
which the person usually lives.
(2) However, a restriction order mentioned in section 60 (Criteria for
making restriction order with psychiatric treatment order) may only
be made for a person who does not usually live in the ACT in relation
to the person’s actions within the ACT.
257 Implementing interstate involuntary treatment order for
temporary ACT resident
(1) This section applies in relation to a person who—
(a) temporarily lives in the ACT; and
(b) is subject to an interstate involuntary treatment order that makes
provision for treatment, care or support in the community.
(2) The person may be given treatment, care or support in the ACT under
the interstate involuntary treatment order if the chief psychiatrist is
satisfied on reasonable grounds that—
(a) the person has a mental illness; and
(b) the person accepts the treatment, care or support; and
(c) treatment, care or support in the ACT—
(i) is expected to be needed for a period of not more than
4 weeks at a time; and
Interstate application of mental health laws
Chapter 15
Interstate operation of certain orders
Part 15.5
Section 257
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(ii) is in the best interests of the person.
(3) Treatment, care or support under subsection (2) may be given by—
(a) an authorised officer if allowed to do so under a corresponding
law of the State that issued the interstate involuntary treatment
order; or
(b) an interstate authorised person.
Chapter 16
Notification and review of decisions
Section 258
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Chapter 16 Notification and review of
decisions
258 Meaning of reviewable decision—ch 16
In this chapter:
reviewable decision means a decision mentioned in
schedule 1, column 3 under a provision of this Act mentioned in
column 2 in relation to the decision.
259 Reviewable decision notices
If a person makes a reviewable decision, the person must give a
reviewable decision notice to each entity mentioned in schedule 1,
column 4 in relation to the decision.
Note 1 The person must also take reasonable steps to give a reviewable decision
notice to any other person whose interests are affected by the decision
(see ACT Civil and Administrative Tribunal Act 2008, s 67A).
Note 2 The requirements for reviewable decision notices are prescribed under
the ACT Civil and Administrative Tribunal Act 2008.
260 Applications for review
The following may apply to the ACAT for a review of a reviewable
decision:
(a) an entity mentioned in schedule 1, column 4 in relation to the
decision;
(b) any other person whose interests are affected by the decision.
Note If a form is approved under the ACT Civil and Administrative Tribunal
Act 2008 for the application, the form must be used.
Miscellaneous
Chapter 17
Section 261
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Chapter 17 Miscellaneous
261 Approval of mental health facilities
(1) The Minister may approve a facility as a mental health facility for this
Act.
(2) An approval is a notifiable instrument.
Note 1 A notifiable instrument must be notified under the Legislation Act.
Note 2 Power to make a statutory instrument includes power to make different
provision for different categories (see Legislation Act, s 48).
262 Approval of community care facilities
(1) The Minister may approve a facility as a community care facility for
this Act.
(2) Before approving a community care facility, the Minister must
consult with any other Minister responsible for the operation of the
facility.
(3) An approval is a notifiable instrument.
Note 1 A notifiable instrument must be notified under the Legislation Act.
Note 2 Power to make a statutory instrument includes power to make different
provision for different categories (see Legislation Act, s 48).
263 Powers of entry and apprehension
(1) This section applies to a person (an authorised person) who is
authorised to apprehend, remove, detain or take a person to a place
under any of the following provisions:
(a) section 44 (Executing removal order);
(b) section 77 (Contravention of mental health order);
(c) section 78 (Contravention of mental health order—absconding
from facility);
Chapter 17
Miscellaneous
Section 263
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(d) section 80 (Apprehension);
(e) section 120 (Revocation of leave granted by ACAT);
(f) section 123 (Revocation of leave granted by relevant official);
(g) section 124 (Contravention of forensic mental health order);
(h) section 125 (Contravention of forensic mental health order—
absconding from facility);
(i) section 144 (Revocation of leave for correctional patients);
(j) section 144D (Power to apprehend if person escapes from secure
mental health facility);
(k) section 247 (Apprehension of interstate patient in breach of
interstate involuntary treatment order);
(l) section 248 (Apprehension of person in breach of mental health
order or forensic mental health order);
(m) section 249 (Interstate transfer—person under psychiatric
treatment order or community care order);
(n) section 250 (Interstate transfer—person under forensic
psychiatric treatment order or forensic community care order);
(o) section 251 (Transfer to interstate mental health facility—
emergency detention);
(p) section 255 (Transfer of person apprehended in another State to
approved mental health facility).
(2) The authorised person—
(a) may, with necessary and reasonable assistance and minimum
force, enter any premises to apprehend, remove or take the
person to a place; and
(b) may use necessary and reasonable assistance to enter premises
and apprehend the person; and
Miscellaneous
Chapter 17
Section 264
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(c) must use the minimum amount of force necessary to apprehend
the person and remove the person to—
(i) an approved mental health facility; or
(ii) another place where the person may be detained for
treatment, care or support.
264 Powers of search and seizure
(1) This section applies to a person (an authorised person) who is
authorised to apprehend, remove, detain or take a person to a place
under any of the following provisions:
(a) section 44 (Executing removal order);
(b) section 65 (Powers in relation to psychiatric treatment order);
(c) section 73 (Powers in relation to community care order);
(d) section 77 (Contravention of mental health order);
(e) section 78 (Contravention of mental health order—absconding
from facility);
(f) section 80 (Apprehension);
(g) section 85 (Authorisation of involuntary detention);
(h) section 107 (Powers in relation to forensic psychiatric treatment
order);
(i) section 114 (Powers in relation to forensic community care
order);
(j) section 120 (Revocation of leave granted by ACAT);
(k) section 123 (Revocation of leave granted by relevant official);
(l) section 124 (Contravention of forensic mental health order);
(m) section 125 (Contravention of forensic mental health order—
absconding from facility);
Chapter 17
Miscellaneous
Section 264
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(n) section 144 (Revocation of leave for correctional patients);
(o) section 144D (Power to apprehend if person escapes from secure
mental health facility);
(p) section 247 (Apprehension of interstate patient in breach of
interstate involuntary treatment order);
(q) section 248 (Apprehension of person in breach of mental health
order or forensic mental health order);
(r) section 249 (Interstate transfer—person under psychiatric
treatment order or community care order);
(s) section 250 (Interstate transfer—person under forensic
psychiatric treatment order or forensic community care order);
(t) section 251 (Transfer to interstate mental health facility—
emergency detention);
(u) section 255 (Transfer of person apprehended in another State to
approved mental health facility).
(2) The authorised person—
(a) may carry out a scanning search, frisk search or ordinary search
of the person if there are reasonable grounds for believing that
the person is carrying anything—
(i) that would present a danger to the authorised person or
another person; or
(ii) that could be used to assist the person to escape the
authorised person’s custody; and
(b) may seize and detain a thing found in a search conducted under
paragraph (a).
(3) The authorised person must make a written record of anything seized
under this section.
Miscellaneous
Chapter 17
Section 264
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(4) A thing seized under this section must be returned to its owner, or
reasonable compensation must be paid to the owner by the Territory
for the loss of the thing, unless—
(a) a prosecution for an offence against a territory law in connection
with the thing is begun within 1 year after the day the seizure is
made and the thing is required to be produced in evidence in the
prosecution; or
(b) an application for the forfeiture of the thing is made to a court
under the Confiscation of Criminal Assets Act 2003 or another
territory law within 1 year after the day the seizure is made; or
(c) all proceedings in relation to the offence with which the seizure
was connected have ended and the court has not made an order
about the thing.
(5) However, subsection (4) does not apply to a thing if the authorised
person believes on reasonable grounds that—
(a) the only practical use of the thing in relation to the premises
where it was seized would be an offence against this Act; or
(b) possession of the thing would be an offence; or
(c) possession of the thing would present a serious risk or threat to
a person.
(6) In this section:
frisk search means—
(a) a search of a person conducted by quickly running the hands
over the person’s outer garments; and
(b) an examination of anything worn or carried by the person that is
conveniently and voluntarily removed by the person.
Chapter 17
Miscellaneous
Section 265
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ordinary search means a search of a person, or of articles in a
person’s possession, that may include—
(a) requiring the person to remove the person’s overcoat, coat or
jacket and any gloves, shoes, hat or bag; and
(b) an examination of those items.
scanning search means a search of a person by electronic or other
means that does not require the person to remove the person’s
clothing or to be touched by someone else.
265 Protection of officials from liability
(1) An official is not civilly liable for conduct engaged in honestly and
without recklessness—
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the conduct was in the exercise of a
function under this Act.
(2) Any civil liability that would, apart from this section, attach to the
official attaches instead to the Territory.
(3) In this section:
conduct means an act or omission to do an act.
official means—
(a) the chief psychiatrist; or
(b) the care coordinator; or
(c) a mental health officer; or
Miscellaneous
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(d) anyone else exercising a function under this Act.
Note 1 An official visitor exercising a function under this Act is protected from
civil liability by the Official Visitor Act 2012, s 24.
Note 2 A reference to an Act includes a reference to the statutory instruments
made or in force under the Act, including any regulation (see Legislation
Act, s 104).
266 Report and record of use of restraint etc
(1) This section applies if—
(a) an authorised person exercises a power under section 263 or
section 264 in relation to a person (the subject person); and
(b) in the course of exercising the power the authorised person—
(i) restrains, involuntary secludes or forcibly gives medication
to the subject person; or
(ii) becomes aware of anything else that may have an adverse
effect on the subject person’s physical or mental health;
and
(c) the subject person is taken to a facility.
(2) The authorised person must give a report about the matter mentioned
in subsection (1) (b) to the person in charge of the facility.
(3) The person in charge of the facility must—
(a) enter the report in the subject person’s record; and
(b) if the facility is a community care facility or mental health
facility—keep a register of any restraint, involuntary seclusion
or forcible giving of medication included in the report.
(4) In this section:
facility means a community care facility, mental health facility and
an interstate facility.
Chapter 17
Miscellaneous
Section 267
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interstate facility means an interstate community care facility and an
interstate mental health facility under chapter 15 (Interstate
application of mental health laws).
267 Appeals from ACAT to Supreme Court
(1) An appeal to the Supreme Court from a decision of the ACAT in a
proceeding may be brought by—
(a) someone in relation to whom the decision was made; or
(b) someone who appeared, or was entitled to appear under
section 190 (1) (Appearance), before the ACAT in the
proceeding; or
(c) the discrimination commissioner; or
(d) anyone else with the court’s leave.
Note See the ACT Civil and Administrative Tribunal Act 2008, pt 8.
(2) The Magistrates Court Act 1930, section 214 (3) and (4) (Appeals in
cases other than civil cases) applies in relation to an appeal under this
section as if it were an appeal mentioned in that Act, section 214 (1).
(3) The ACT Civil and Administrative Tribunal Act 2008, section 86
(Appeal to Supreme Court) and section 87 (Sending documents and
things to Supreme Court) do not apply to a decision or appeal to
which this section applies.
268 Relationship with Guardianship and Management of
Property Act
(1) Despite anything in the Guardianship and Management of Property
Act 1991 or an order appointing a guardian, a guardian appointed for
a person under that Act—
(a) is not entitled to give consent to electroconvulsive therapy or
psychiatric surgery; and
Miscellaneous
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(b) if the person is subject to a community care order—is not
entitled to decide anything for the person contrary to any
determinations or decisions made in relation to the person by the
care coordinator under the community care order (or any related
restriction order).
(2) Despite anything in the Guardianship and Management of Property
Act 1991, section 70 (ACAT may consent to prescribed medical
procedures), the ACAT must not, while exercising its jurisdiction
under the Act—
(a) make an order in relation to any consent to electroconvulsive
therapy or psychiatric surgery; and
(b) make an order in relation to a person contrary to any community
care order (or restriction order) made in relation to the person.
Note In certain circumstances a guardian can consent to a person’s treatment,
care or support for mental illness (see Guardianship and Management of
Property Act 1991, s 70A).
269 Relationship with Powers of Attorney Act
Despite anything in the Powers of Attorney Act 2006 or an instrument
creating a power of attorney, an attorney of a person appointed under
a power of attorney under that Act—
(a) is not entitled to give consent to electroconvulsive therapy or
psychiatric surgery; and
(b) if the person is subject to a community care order—is not
entitled to decide anything for the person contrary to any
determinations or decisions made in relation to the person by the
care coordinator under the community care order (or any related
restriction order).
Note In certain circumstances an attorney can consent to a person’s treatment,
care or support for mental illness (see Powers of Attorney Act 2006,
s 46A).
Chapter 17
Miscellaneous
Section 270
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270 Certain rights unaffected
Nothing in this Act prevents a person in relation to whom no ACAT
order is in force—
(a) refusing to receive particular treatment, care or support at a
mental health facility; or
(b) discharging himself or herself from the facility.
271A Reviews by Minister and director-general
(1) The Minister must invite public submissions and review the operation
of the following provisions of this Act not earlier than 5 years and not
later than 6 years after the day this section commences:
(a) section 58 (Psychiatric treatment order);
(b) section 66 (Community care order);
(c) section 101 (Forensic psychiatric treatment order);
(d) section 102 (Content of forensic psychiatric treatment order);
(e) section 108 (Forensic community care order).
(2) The Minister must present a report of the review under subsection (1)
to the Legislative Assembly not later than 2 years after the day the
review commences.
(3) The director-general must invite public submissions and review the
operation of the following provisions of this Act not earlier than
5 years and not later than 6 years after the day this section
commences:
(a) section 56 (What ACAT must take into account—mental health
order);
(b) section 77 (Contravention of mental health order);
(c) section 80 (Apprehension);
(d) section 127 (Definitions—pt 7.2), definition of forensic patient;
Miscellaneous
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Section 272
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(e) section 134 (Disclosures to registered affected people);
(f) section 180 (Review of detention under court order);
(g) section 182 (Review of conditions of release);
(h) section 188 (Notice of hearing);
(i) section 190 (Appearance);
(j) section 198A (Chief psychiatrist may make guidelines).
(4) The director-general must give a report of the review under
subsection (3) to the Minister not later than 2 years after the day the
review commences.
(5) Subsections (1) to (4) and this subsection expire 9 years after the day
this section commences.
272 Determination of fees
(1) The Minister may determine fees for this Act.
Note The Legislation Act 2001 contains provisions about the making of
determinations and regulations relating to fees (see pt 6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to the
Legislative Assembly, under the Legislation Act 2001.
274 Regulation-making power
The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative Assembly,
under the Legislation Act 2001.
Chapter 20
Transitional—Mental Health Amendment Act 2023
Section 300
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Chapter 20 Transitional—Mental Health
Amendment Act 2023
300 Meaning of commencement day—ch 20
In this chapter—
commencement day means the day the Mental Health Amendment
Act 2023, section 3 commences.
301 Contravention of mental health order before
commencement day
(1) This section applies if—
(a) a person contravened a mental health order in force immediately
before the commencement day in relation to the person; and
(b) section 78 (Contravention of mental health order—absconding
from facility) does not apply to the contravention; and
(c) the relevant official for the order did not take action under
section 77 (2) as in force immediately before the
commencement day in relation to the contravention.
(2) Section 77 applies in relation to the contravention.
302 Contravention of forensic mental health order before
commencement day
(1) This section applies if—
(a) a person contravened a forensic mental health order in force
immediately before the commencement day in relation to the
person; and
(b) section 125 (Contravention of forensic mental health order—
absconding from facility) does not apply to the contravention;
and
Transitional—Mental Health Amendment Act 2023
Chapter 20
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(c) the relevant official for the order did not take action under
section 124 (2) as in force immediately before the
commencement day in relation to the contravention.
(2) Section 124 applies in relation to the contravention.
303 ACAT order not made before commencement day
(1) This section applies if—
(a) the ACAT was required to review a person’s detention and
consider the person’s release under section 180 (2) as in force
immediately before the commencement day; and
(b) the ACAT did not make an order in relation to the person.
(2) Section 180 applies in relation to the ACAT’s review of the person’s
detention and consideration of the person’s release.
304 Expiry—ch 20
This chapter expires 2 years after the commencement day.
Note A transitional provision is repealed on its expiry but continues to have
effect after its repeal (see Legislation Act, s 88).
Schedule 1
Reviewable decisions
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Schedule 1 Reviewable decisions
(see ch 16)
column 1
item
column 2
section
column 3
decision
column 4
entity
1
121
refuse to grant leave
applicant for leave
2
122
refuse to grant leave
applicant for leave
3
123
revoke leave
applicant for leave
4
143
refuse to grant leave
applicant for leave
5
144
revoke leave
applicant for leave
6
226
refuse to issue licence
applicant for licence
7
227
refuse to renew licence
applicant for renewal of
licence
8
228
refuse to transfer
licence
licensee
proposed new licensee
9
229
amend licence
licensee
10
230
refuse to amend
licence
licensee
11
232
cancel licence
licensee
12
233
cancel licence
licensee
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Dictionary
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions relevant to
this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:
• ACAT
• adult
• chief officer (ambulance service)
• chief police officer
• child
• correctional centre
• corrections officer
• detention place
• director-general (see s 163)
• director of public prosecutions
• discrimination commissioner
• doctor
• domestic partner (see s 169 (1))
• expire
• integrity commission
• lawyer
• Magistrates Court
• nurse
• nurse practitioner
• parent
• police officer
• proceeding
• public advocate
• registrar
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• reviewable decision notice
• State
• Supreme Court
• victims of crime commissioner
• writing.
advance agreement—see section 26.
advance consent direction—see section 27.
affected person, in relation to a forensic patient—see section 128.
affected person register, for part 7.2 (Affected people)—see
section 130.
approved community care facility means a facility approved under
section 262.
approved mental health facility means a facility approved under
section 261.
assessment means a psychiatric or psychological assessment.
assessment order means an order made under section 37.
authorised ambulance paramedic means a member of the ambulance
service—
(a) employed as a paramedic; and
(b) authorised by the chief officer (ambulance service) to apprehend
people with a mental disorder or mental illness.
authorised officer, for chapter 15 (Interstate application of mental
health laws)—see section 243.
care and protection order—see the Children and Young People
Act 2008, section 422.
care coordinator means the care coordinator appointed under
section 204.
carer—see section 12.
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chief psychiatrist means the Chief Psychiatrist appointed under
section 196.
close relative or close friend, of a person—see the Guardianship and
Management of Property Act 1991, section 32A.
community-based sentence—see the Crimes (Sentence
Administration) Act 2005, section 264.
community care facility—
(a) means—
(i) a facility, or part of a facility, for the treatment, care or
support, protection, rehabilitation or accommodation of
people with a mental disorder; or
(ii) a prescribed psychiatric facility or a prescribed part of a
psychiatric facility; but
(b) does not include a correctional centre or detention place.
community care order means an order made under section 66.
community care service, for chapter 15 (Interstate application of
mental health laws)—see section 243.
coordinating director-general means the director-general appointed
under section 215.
correctional patient—see section 135.
corrections director-general means the director-general responsible
for the Corrections Management Act 2007.
corrections order, for division 7.1.8 (Leave for detained people)—
see section 118.
corresponding law, for chapter 15 (Interstate application of mental
health laws)—see section 243.
Crimes Act means the Crimes Act 1900.
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CYP director-general means the director-general responsible for the
Children and Young People Act 2008.
decision-making capacity—see section 7.
detainee—see the Corrections Management Act 2007, section 6.
director-general, for part 7.2 (Affected people)—see section 127.
electroconvulsive therapy—see section 145.
electroconvulsive therapy order—see section 145.
eligible person, for part 13.2 (Licences)—see section 223.
emergency assessment order means an order made under section 39.
emergency electroconvulsive therapy order—see section 145.
entitled person—see section 208.
forensic community care order means an order made under
section 108.
forensic mental health order means a forensic psychiatric treatment
order or a forensic community care order.
forensic patient, for part 7.2 (Affected people)—see section 127.
forensic psychiatric treatment order means an order made under
section 101.
health attorney—see the Guardianship and Management of Property
Act 1991, section 32B (1).
health director-general, for part 8.4 (Leave for correctional
patients)—see section 142A.
information sharing entity, for part 12.5 (Sharing information—
government agencies)—see section 218.
information sharing protocol, for part 12.5 (Sharing information—
government agencies)—see section 219.
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information statement means an information statement mentioned in
section 15 (1) (b).
inspector, for chapter 13 (Private psychiatric facilities)—see
section 222.
intensive therapy order, for a child or young person—see the
Children and Young People Act 2008, section 532.
interim care and protection order—see the Children and Young
People Act 2008, section 433.
interim intensive therapy order, for a child or young person—see the
Children and Young People Act 2008, section 543.
interstate authorised person, for chapter 15 (Interstate application of
mental health laws)—see section 243.
interstate community care facility, for chapter 15 (Interstate
application of mental health laws)—see section 243.
interstate community care service, for chapter 15 (Interstate
application of mental health laws)—see section 243.
interstate involuntary treatment order, for chapter 15 (Interstate
application of mental health laws)—see section 243.
interstate mental health facility, for chapter 15 (Interstate application
of mental health laws)—see section 243.
interstate mental health service, for chapter 15 (Interstate application
of mental health laws)—see section 243.
interstate patient, for chapter 15 (Interstate application of mental
health laws)—see section 243.
licence, for chapter 13 (Private psychiatric facilities)—see
section 222.
licensed premises, for chapter 13 (Private psychiatric facilities)—see
section 222.
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licensee, for chapter 13 (Private psychiatric facilities)—see
section 222.
mental disorder—see section 9.
mental health facility—
(a) means a facility for the treatment, care or support, rehabilitation
or accommodation of people with a mental illness; and
(b) includes a psychiatric facility.
mental health officer means a person appointed as a mental health
officer under section 201.
mental health order means a psychiatric treatment order, a community
care order or a restriction order.
mental health professional means a doctor, nurse, psychiatrist,
psychologist, social worker or therapist (including occupational
therapist) or other person who provides services for people with a
mental disorder or mental illness.
mental health service, for chapter 15 (Interstate application of mental
health laws)—see section 243.
mental illness—see section 10.
mental impairment—see the Criminal Code, section 27.
nominated person means a person nominated under section 19.
non-presidential member, of the ACAT—see the ACT Civil and
Administrative Tribunal Act 2008, dictionary.
official visitor—see section 208.
president, of the ACAT—see the ACT Civil and Administrative
Tribunal Act 2008, dictionary.
presidential member, of the ACAT—see the ACT Civil and
Administrative Tribunal Act 2008, dictionary.
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private psychiatric facility, for chapter 13 (Private psychiatric
facilities)—see section 222.
psychiatric facility means—
(a) a hospital or other facility conducted by the Territory for the
treatment, care, support, rehabilitation or accommodation of
people who have a mental illness; or
(b) a private psychiatric facility licensed under chapter 13.
psychiatric surgery—see section 145.
psychiatric treatment order means an order made under section 58.
psychiatrist means a doctor who—
(a) is registered under the Health Practitioner Regulation National
Law (ACT) to practise in the specialty of psychiatry; or
(b) meets the requirements prescribed by regulation.
publish, for part 7.2 (Affected people)—see section 127.
registered affected person, in relation to a forensic patient—see
section 129.
referring officer, in relation to a person, means—
(a) the police officer—
(i) who arrests the person in connection with an offence; or
(ii) who is satisfied that there are sufficient grounds on which
to charge the person in connection with an offence; or
(iii) who charges the person in connection with an offence; or
(b) a member of the staff of the director of public prosecutions who
is responsible for the prosecution of an offence against the
person; or
Dictionary
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(c) if the person is required to accept supervision by someone else
as a condition of bail under the Bail Act 1992—that other person.
Note Under the Bail Act 1992, s 25 (4) and s 26 (2), an adult may be
supervised by the corrections director-general and a child may be
supervised by the CYP director-general.
relative, in relation to a person, means a domestic partner, parent,
guardian, grandparent, uncle, aunt, brother, sister, half-brother,
half-sister, cousin or child (being a child over the age of 18 years) of
the person.
Note Domestic partner—see the Legislation Act, s 169.
relevant director-general, for part 8.4 (Leave for correctional
patients)—see section 142A.
relevant information, for part 12.5 (Sharing information—
government agencies)—see section 218.
relevant official—
(a) for a mental health order, for chapter 5 (Mental health orders)—
see section 50; or
(b) for a forensic mental health order, for part 7.1 (Forensic mental
health orders)—see section 93.
relevant person—
(a) for a mental health order application, for chapter 5 (Mental
health orders)—see section 50; and
(b) for a forensic mental health order application, for part 7.1
(Forensic mental health orders)—see section 93.
representative, of a treating team, for part 3.3 (Advance agreements
and advance consent directions)—see section 24.
responsible person, for part 3.1 (Rights in relation to information and
communication)—see section 14.
restraint does not include the use of a spit hood.
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restriction order means an order made under section 60 or section 68.
reviewable decision, for chapter 16 (Notification and review of
decisions)—see section 258.
secure mental health facility—see the Mental Health (Secure
Facilities) Act 2016, section 7.
subject person, for chapter 11 (ACAT procedural matters)—see
section 190.
transfer direction—see section 136 (3).
treating team, for a person with a mental disorder or mental illness,
for part 3.3 (Advance agreements and advance consent directions)—
see section 24.
treatment, care or support, for a mental disorder or mental illness—
(a) means things done in the course of the exercise of professional
skills to remedy the disorder or illness or lessen its ill effects or
the pain or suffering it causes; and
(b) includes the giving of medication and counselling, training,
therapeutic and rehabilitation programs, care or support.
Examples—rehabilitation support
1 support to improve social confidence and integration
2 assistance to improve work skills
visitable place—see section 208.
young detainee—see the Children and Young People Act 2008,
section 95.
young offender—see the Children and Young People Act 2008,
dictionary.
young person—see the Children and Young People Act 2008,
section 12.
Endnotes
1
About the endnotes
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Endnotes
1 About the endnotes
Amending and modifying laws are annotated in the legislation history and the
amendment history. Current modifications are not included in the republished law
but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are
annotated in the amendment history. Full details of any amendments can be
obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws are not included in the republished law. The details
of these laws are underlined in the legislation history. Uncommenced expiries are
underlined in the legislation history and amendment history.
If all the provisions of the law have been renumbered, a table of renumbered
provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
2 Abbreviation key
A = Act
NI = Notifiable instrument
AF = Approved form
o = order
am = amended
om = omitted/repealed
amdt = amendment
ord = ordinance
AR = Assembly resolution
orig = original
ch = chapter
par = paragraph/subparagraph
CN = Commencement notice
pres = present
def = definition
prev = previous
DI = Disallowable instrument
(prev...) = previously
dict = dictionary
pt = part
disallowed = disallowed by the Legislative
r = rule/subrule
Assembly
reloc = relocated
div = division
renum = renumbered
exp = expires/expired
R[X] = Republication No
Gaz = gazette
RI = reissue
hdg = heading
s = section/subsection
IA = Interpretation Act 1967
sch = schedule
ins = inserted/added
sdiv = subdivision
LA = Legislation Act 2001
SL = Subordinate law
LR = legislation register
sub = substituted
LRA = Legislation (Republication) Act 1996
underlining = whole or part not commenced
mod = modified/modification
or to be expired
Endnotes
Legislation history
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3 Legislation history
Mental Health Act 2015 A2015-38
notified LR 7 October 2015
s 1, s 2 commenced 7 October 2015 (LA s 75 (1))
sch 2 pt 2.2 (amdt 2.54) commenced 8 October 2015 (s 2 (2))
remainder commenced 1 March 2016 (s 2 (1) and see Mental Health
(Treatment and Care) Act 1994 A2014-51, s 2 (as am by A2015-38
amdt 2.54))
as amended by
Protection of Rights (Services) Legislation Amendment Act 2016
(No 2) A2016-13 sch 1 pt 1.28
notified LR 16 March 2016
s 1, s 2 commenced 16 March 2016 (LA s 75 (1))
sch 1 pt 1.28 commenced 1 April 2016 (s 2 and see Protection of
Rights (Services) Legislation Amendment Act 2016 A2016-1 s 2)
ACT Civil and Administrative Tribunal Amendment Act 2016 (No 2)
A2016-28 sch 1 pt 1.6
notified LR 15 June 2016
s 1, s 2 commenced 15 June 2016 (LA s 75 (1))
sch 1 pt 1.6 commenced 16 June 2016 (s 2 (1))
Mental Health Amendment Act 2016 A2016-32
notified LR 20 June 2016
s 1, s 2 commenced 20 June 2016 (LA s 75 (1))
s 86, s 96, s 97, s 101 commenced 21 June 2016 (s 2 (2))
remainder commenced 21 June 2016 (s 2 (1))
Family Violence Act 2016 A2016-42 sch 3 pt 3.16 (as am by A2017-10
s 7)
notified LR 18 August 2016
s 1, s 2 commenced 18 August 2016 (LA s 75 (1))
sch 3 pt 3.16 commenced 1 May 2017 (s 2 (2) as am by A2017-10 s 7)
Endnotes
3
Legislation history
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Family and Personal Violence Legislation Amendment Act 2017
A2017-10 s 7
notified LR 6 April 2017
s 1, s 2 commenced 6 April 2017 (LA s 75 (1))
s 7 commenced 30 April 2017 (s 2 (1))
Note This Act only amends the Family Violence Act 2016
A2016-42.
Statute Law Amendment Act 2017 (No 2) A2017-28 sch 3 pt 3.9
notified LR 27 September 2017
s 1, s 2 commenced 27 September 2017 (LA s 75 (1))
sch 3 pt 3.9 commenced 11 October 2017 (s 2)
Statute Law Amendment Act 2018 A2018-42 sch 1 pt 1.3
notified LR 8 November 2018
s 1, s 2 taken to have commenced 1 July 2018 (LA s 75 (2))
sch 1 pt 1.3 commenced 22 November 2018 (s 2 (1))
Integrity Commission Act 2018 A2018-52 sch 1 pt 1.16 (as am by
A2019-18 s 4)
notified LR 11 December 2018
s 1, s 2 commenced 11 December 2018 (LA s 75 (1))
sch 1 pt 1.16 commenced 1 December 2019 (s 2 (2) (a) as am by
A2019-18 s 4)
Integrity Commission Amendment Act 2019 A2019-18
notified LR 14 June 2019
s 1, s 2 commenced 14 June 2019 (LA s 75 (1))
s 3, s 4 commenced 15 June 2019 (s 2 (1))
Note This Act only amends the Integrity Commission Act 2018
A2018-52.
Official Visitor Amendment Act 2019 A2019-29 sch 1 pt 1.5
notified LR 2 October 2019
s 1, s 2 commenced 2 October 2019 (LA s 75 (1))
amdt 1.23 commenced 2 April 2020 (s 2 (1) and LA s 79)
sch 1 pt 1.5 remainder commenced 3 October 2019 (s 2 (2))
Endnotes
Legislation history
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Mental Health Amendment Act 2020 A2020-43
notified LR 27 August 2020
s 1, s 2 commenced 27 August 2020 (LA s 75 (1))
s 7, s 8 commenced 12 February 2021 (s 2 (3))
remainder commenced 28 August 2020 (s 2 (1))
Justice and Community Safety Legislation Amendment Act 2021
A2021-3 pt 13
notified LR 19 February 2021
s 1, s 2 commenced 19 February 2021 (LA s 75 (1))
pt 13 commenced 26 February 2021 (s 2 (1))
Statute Law Amendment Act 2021 A2021-12 sch 1 pt 1.2, sch 3 pt 3.37
notified LR 9 June 2021
s 1, s 2 commenced 9 June 2021 (LA s 75 (1))
sch 1 pt 1.2, sch 3 pt 3.37 commenced 23 June 2021 (s 2 (1))
Mental Health Amendment Act 2023 A2023-44
notified LR 15 November 2023
s 1, s 2 commenced 15 November 2023 (LA s 75 (1))
remainder commenced 16 November 2023 (s 2)
Justice (Age of Criminal Responsibility) Legislation Amendment
Act 2023 A2023-45 sch 1 pt 1.8
notified LR 15 November 2023
s 1, s 2 commenced 15 November 2023 (LA s 75 (1))
sch 1 pt 1.8 commenced 27 March 2024 (s 2 (2) (a))
Endnotes
4
Amendment history
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4 Amendment history
Dictionary
s 2 orig s 2
om LA s 89 (4)
pres s 2
(prev s 3) renum as s 2 R1 LA (see A2015-38 amdt 2.55)
Notes
s 3 orig s 3
renum as s 2
pres s 3
(prev s 4) renum as s 3 R1 LA (see A2015-38 amdt 2.55)
Offences against Act—application of Criminal Code etc
s 4 orig s 4
renum as s 3
pres s 4
(prev s 4A) renum as s 4 R1 LA (see A2015-38 amdt 2.55)
Offences against Act—application of Criminal Code etc
s 4A renum as s 4
Objects of Act
s 5 reloc from Mental Health (Treatment and Care) Act 1994 s 5
by A2015-38 amdt 2.38
Principles applying to Act
s 6 reloc from Mental Health (Treatment and Care) Act 1994 s 6
by A2015-38 amdt 2.38
Meaning of decision-making capacity
s 7 reloc from Mental Health (Treatment and Care) Act 1994 s 7
by A2015-38 amdt 2.38
Principles of decision-making capacity
s 8 reloc from Mental Health (Treatment and Care) Act 1994 s 8
by A2015-38 amdt 2.38
Meaning of mental disorder
s 9 reloc from Mental Health (Treatment and Care) Act 1994 s 9
by A2015-38 amdt 2.38
Meaning of mental illness
s 10 reloc from Mental Health (Treatment and Care) Act 1994 s 10
by A2015-38 amdt 2.38
People not to be regarded as having mental disorder or mental illness
s 11 reloc from Mental Health (Treatment and Care) Act 1994 s 11
by A2015-38 amdt 2.38
Endnotes
Amendment history
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Meaning of carer
s 12 reloc from Mental Health (Treatment and Care) Act 1994 s 12
by A2015-38 amdt 2.38
Proceedings relating to children
s 13 reloc from Mental Health (Treatment and Care) Act 1994 s 13
by A2015-38 amdt 2.38
Rights in relation to information and communication
pt 3.1 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 3.1
by A2015-38 amdt 2.39
Meaning of responsible person—pt 3.1
s 14 reloc from Mental Health (Treatment and Care) Act 1994 s 14
by A2015-38 amdt 2.39
Information to be given to people
s 15 reloc from Mental Health (Treatment and Care) Act 1994 s 15
by A2015-38 amdt 2.39
pars renum R1 LA
Information to be available at facilities
s 16 reloc from Mental Health (Treatment and Care) Act 1994 s 16
by A2015-38 amdt 2.39
Communication
s 17 reloc from Mental Health (Treatment and Care) Act 1994 s 17
by A2015-38 amdt 2.39
Failure by owner of facility to comply with pt 3.1
s 18 reloc from Mental Health (Treatment and Care) Act 1994 s 18
by A2015-38 amdt 2.39
Nominated people
pt 3.2 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 3.2
by A2015-38 amdt 2.39
Nominated person
s 19 reloc from Mental Health (Treatment and Care) Act 1994 s 19
by A2015-38 amdt 2.39
am A2021-12 amdt 3.88
Nominated person—functions
s 20 reloc from Mental Health (Treatment and Care) Act 1994 s 20
by A2015-38 amdt 2.39
am A2016-32 s 4
Nominated person—obligations of person in charge of facility
s 21 reloc from Mental Health (Treatment and Care) Act 1994 s 21
by A2015-38 amdt 2.39
Endnotes
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Amendment history
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Nominated person—end of nomination
s 22 reloc from Mental Health (Treatment and Care) Act 1994 s 22
by A2015-38 amdt 2.39
am A2021-12 amdt 3.88
Nominated person—protection from liability
s 23 reloc from Mental Health (Treatment and Care) Act 1994 s 23
by A2015-38 amdt 2.39
Advance agreements and advance consent directions
pt 3.3 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 3.3
by A2015-38 amdt 2.39
Definitions—pt 3.3
s 24 reloc from Mental Health (Treatment and Care) Act 1994 s 24
by A2015-38 amdt 2.39
def representative reloc from Mental Health (Treatment and
Care) Act 1994 s 24 by A2015-38 amdt 2.39
def treating team reloc from Mental Health (Treatment and
Care) Act 1994 s 24 by A2015-38 amdt 2.39
Rights in relation to advance agreements and advance consent directions
s 25 reloc from Mental Health (Treatment and Care) Act 1994 s 25
by A2015-38 amdt 2.39
Entering into advance agreement
s 26 reloc from Mental Health (Treatment and Care) Act 1994 s 26
by A2015-38 amdt 2.39
am A2016-32 s 5; pars renum R4 LA; A2021-12 amdt 3.88
Making advance consent direction
s 27 reloc from Mental Health (Treatment and Care) Act 1994 s 27
by A2015-38 amdt 2.39
ss renum R1 LA
am A2016-32 s 6; pars renum R4 LA; A2021-12 amdt 3.88
Giving treatment etc under advance agreement or advance consent direction
s 28 reloc from Mental Health (Treatment and Care) Act 1994 s 28
by A2015-38 amdt 2.39
Ending advance agreement or advance consent direction
s 29 reloc from Mental Health (Treatment and Care) Act 1994 s 29
by A2015-38 amdt 2.39
am A2016-32 s 7
Effect of advance agreement and advance consent direction on guardian
with authority to give consent for treatment, care or support
s 30 reloc from Mental Health (Treatment and Care) Act 1994 s 30
by A2015-38 amdt 2.39
Endnotes
Amendment history
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Effect of advance agreement and advance consent direction on attorney with
power to deal with health care matters
s 31 reloc from Mental Health (Treatment and Care) Act 1994 s 31
by A2015-38 amdt 2.39
Effect of health direction on previous advance consent direction
s 32 reloc from Mental Health (Treatment and Care) Act 1994 s 32
by A2015-38 amdt 2.39
Applications for assessment orders
pt 4.1 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 4.1
by A2015-38 amdt 2.40
Applications by people with mental disorder or mental illness—assessment
order
s 33 reloc from Mental Health (Treatment and Care) Act 1994 s 33
by A2015-38 amdt 2.40
Applications by other people—assessment order
s 34 reloc from Mental Health (Treatment and Care) Act 1994 s 34
by A2015-38 amdt 2.40
Applications by referring officers—assessment order
s 35 reloc from Mental Health (Treatment and Care) Act 1994 s 35
by A2015-38 amdt 2.40
Applicant and referring officer to tell ACAT of risks—assessment order
s 36 reloc from Mental Health (Treatment and Care) Act 1994 s 36
by A2015-38 amdt 2.40
Assessment orders
pt 4.2 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 4.2
by A2015-38 amdt 2.40
Assessment order
s 36A renum as s 37
Consent for assessment order
s 36B renum as s 38
Emergency assessment order
s 36C renum as s 39
Content and effect of assessment order
s 36D renum as s 40
Public advocate to be told about assessment order
s 36E renum as s 41
Time for conducting assessment
s 36F renum as s 42
Endnotes
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Amendment history
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Removal order to conduct assessment
s 36G renum as s 43
Executing removal order
s 36H renum as s 44
Contact with others
s 36I renum as s 45
Public advocate and lawyer to have access
s 36J renum as s 46
Person to be assessed to be told about order
s 36K renum as s 47
Copy of assessment
s 36L renum as s 48
Notice of outcome of assessment
s 36M renum as s 49
Definitions—ch 5
s 36N renum as s 50
Applications for mental health orders
s 36O renum as s 51
Applicant to tell ACAT of risks
s 36P renum as s 52
ACAT must consider assessment—mental health order
s 36Q renum as s 53
Consultation by ACAT—mental health order
s 36R renum as s 54
ACAT must hold hearing—mental health order
s 36S renum as s 55
What ACAT must take into account—mental health order
s 36T renum as s 56
ACAT must not order particular treatment, care or support—mental health
order
s 36U renum as s 57
Psychiatric treatment order
s 36V renum as s 58
Content of psychiatric treatment order
s 36W renum as s 59
Criteria for making restriction order with psychiatric treatment order
s 36X renum as s 60
Endnotes
Amendment history
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Content of restriction order made with psychiatric treatment order
s 36Y renum as s 61
Role of chief psychiatrist—psychiatric treatment order
s 36Z renum as s 62
Treatment etc to be explained—psychiatric treatment order
s 36ZA renum as s 63
Action if psychiatric treatment order no longer appropriate—no longer
person in relation to whom ACAT could make order
s 36ZB renum as s 64
Powers in relation to psychiatric treatment order
s 36ZC renum as s 65
Community care order
s 36ZD renum as s 66
Content of community care order
s 36ZE renum as s 67
Criteria for making restriction order with community care order
s 36ZF renum as s 68
Content of restriction order made with community care order etc
s 36ZG renum as s 69
Role of care coordinator—community care order
s 36ZH renum as s 70
Treatment etc to be explained—community care order
s 36ZI renum as s 71
Action if community care order no longer appropriate—no longer person in
relation to whom ACAT could make order
s 36ZJ renum as s 72
Powers in relation to community care order
s 36ZK renum as s 73
Limits on communication—mental health order
s 36ZL renum as s 74
Offence—limits on communication—mental health order
s 36ZM renum as s 75
Duration of mental health orders
s 36ZN renum as s 76
Contravention of mental health order
s 36ZO renum as s 77
Contravention of mental health order—absconding from facility
s 36ZP renum as s 78
Endnotes
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Review, amendment or revocation of mental health order
s 36ZQ renum as s 79
Assessment order
s 37 orig s 37
renum as s 80
pres s 37
(prev s 36A) reloc from Mental Health (Treatment and Care)
Act 1994 s 36A by A2015-38 amdt 2.40
renum as s 37 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 8; A2017-28 amdt 3.26; A2023-45 amdt 1.32
Consent for assessment order
s 38 orig s 38
renum as s 81
pres s 38
(prev s 36B) reloc from Mental Health (Treatment and Care)
Act 1994 s 36B by A2015-38 amdt 2.40
renum as s 38 R1 LA (see A2015-38 amdt 2.55)
Copy of court order
s 38A renum as s 82
Emergency assessment order
s 39 orig s 39
renum as s 83
pres s 39
(prev s 36C) reloc from Mental Health (Treatment and Care)
Act 1994 s 36C by A2015-38 amdt 2.40
renum as s 39 R1 LA (see A2015-38 amdt 2.55)
Content and effect of assessment order
s 40 orig s 40
renum as s 84
pres s 40
(prev s 36D) reloc from Mental Health (Treatment and Care)
Act 1994 s 36D by A2015-38 amdt 2.40
renum as s 40 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 9
Public advocate to be told about assessment order
s 41 orig s 41
renum as s 85
pres s 41
(prev s 36E) reloc from Mental Health (Treatment and Care)
Act 1994 s 36E by A2015-38 amdt 2.40
renum as s 41 R1 LA (see A2015-38 amdt 2.55)
Medical examination of detained person
s 41AA renum as s 86
Endnotes
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Notification of Magistrates Court about emergency detention or release from
emergency detention
s 41A renum as s 87
Treatment during detention
s 41AB renum as s 88
Time for conducting assessment
s 42 orig s 42
renum as s 89
pres s 42
(prev s 36F) reloc from Mental Health (Treatment and Care)
Act 1994 s 36F by A2015-38 amdt 2.40
renum as s 42 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 10
Removal order to conduct assessment
s 43 (prev s 36G) reloc from Mental Health (Treatment and Care)
Act 1994 s 36G by A2015-38 amdt 2.40
renum as s 43 R1 LA (see A2015-38 amdt 2.55)
Executing removal order
s 44 (prev s 36H) reloc from Mental Health (Treatment and Care)
Act 1994 s 36H by A2015-38 amdt 2.40
renum as s 44 R1 LA (see A2015-38 amdt 2.55)
Contact with others
s 45 orig s 45
renum as s 90
pres s 45
(prev s 36I) reloc from Mental Health (Treatment and Care)
Act 1994 s 36I by A2015-38 amdt 2.40
renum as s 45 R1 LA (see A2015-38 amdt 2.55)
Public advocate and lawyer to have access
s 46 orig s 46
renum as s 91
pres s 46
(prev s 36J) reloc from Mental Health (Treatment and Care)
Act 1994 s 36J by A2015-38 amdt 2.40
renum as s 46 R1 LA (see A2015-38 amdt 2.55)
Person to be assessed to be told about order
s 47 orig s 47
renum as s 92
pres s 47
(prev s 36K) reloc from Mental Health (Treatment and Care)
Act 1994 s 36K by A2015-38 amdt 2.40
renum as s 47 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 11
Endnotes
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Copy of assessment
s 48 (prev s 36L) reloc from Mental Health (Treatment and Care)
Act 1994 s 36L by A2015-38 amdt 2.40
renum as s 48 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 12
Definitions—pt 7.1
s 48S renum as s 93
Applications for forensic mental health orders—detainees etc
s 48T renum as s 94
Relevant person to tell ACAT of risks
s 48U renum as s 95
ACAT must consider assessment—forensic mental health order
s 48V renum as s 96
Consultation by ACAT—forensic mental health order
s 48W renum as s 97
ACAT must hold hearing—forensic mental health order
s 48X renum as s 98
What ACAT must take into account—forensic mental health order
s 48Y renum as s 99
ACAT must not order particular treatment, care or support—forensic mental
health order
s 48Z renum as s 100
Forensic psychiatric treatment order
s 48ZA renum as s 101
Content of forensic psychiatric treatment order
s 48ZB renum as s 102
Role of chief psychiatrist—forensic psychiatric treatment order
s 48ZC renum as s 103
Treatment etc to be explained—forensic psychiatric treatment order
s 48ZD renum as s 104
Action if forensic psychiatric treatment order no longer appropriate—no
longer person in relation to whom ACAT could make order
s 48ZE renum as s 105
Action if forensic psychiatric treatment order no longer appropriate—no
longer necessary to detain person
s 48ZF renum as s 106
Powers in relation to forensic psychiatric treatment order
s 48ZG renum as s 107
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 307
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Forensic community care order
s 48ZH renum as s 108
Content of forensic community care order
s 48ZI renum as s 109
Role of care coordinator—forensic community care order
s 48ZJ renum as s 110
Treatment etc to be explained—forensic community care order
s 48ZK renum as s 111
Action if forensic community care order no longer appropriate—no longer
person in relation to whom ACAT could make order
s 48ZL renum as s 112
Action if forensic community care order no longer appropriate—no longer
necessary to detain person
s 48ZM renum as s 113
Powers in relation to forensic community care order
s 48ZN renum as s 114
Limits on communication—forensic mental health order
s 48ZO renum as s 115
Offence—limits on communication—forensic mental health order
s 48ZP renum as s 116
Duration of forensic mental health orders
s 48ZQ renum as s 117
Meaning of corrections order—div 7.1.8
s 48ZR renum as s 118
Grant of leave for person detained by ACAT
s 48ZS renum as s 119
Revocation of leave granted by ACAT
s 48ZT renum as s 120
Grant of leave for person detained by relevant official
s 48ZU renum as s 121
Leave in emergency or special circumstances
s 48ZV renum as s 122
Revocation of leave granted by relevant official
s 48ZW renum as s 123
Contravention of forensic mental health order
s 48ZX renum as s 124
Contravention of forensic mental health order—absconding from facility
s 48ZY renum as s 125
Endnotes
4
Amendment history
page 308
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Review, amendment or revocation of forensic mental health order
s 48ZZ renum as s 126
Definitions—pt 7.2
s 48ZZA renum as s 127
Meaning of affected person
s 48ZZB renum as s 128
Meaning of registered affected person
s 48ZZC renum as s 129
Affected person register
s 48ZZD renum as s 130
Notifying people about the affected person register
s 48ZZE renum as s 131
Including person in affected person register
s 48ZZF renum as s 132
Removing person from affected person register
s 48ZZG renum as s 133
Disclosures to registered affected people
s 48ZZH renum as s 134
Meaning of correctional patient
s 48ZZI renum as s 135
Transfer to mental health facility
s 48ZZJ renum as s 136
Return to correctional centre unless direction to remain
s 48ZZK renum as s 137
Release etc on change of status of correctional patient
s 48ZZL renum as s 138
ACAT may return people to correctional centre
s 48ZZM renum as s 139
Review of correctional patient awaiting transfer to mental health facility
s 48ZZN renum as s 140
Review of correctional patient transferred to mental health facility
s 48ZZO renum as s 141
Review of correctional patient detained at mental health facility
s 48ZZP renum as s 142
Grant of leave for correctional patients
s 48ZZQ renum as s 143
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 309
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Revocation of leave for correctional patients
s 48ZZR renum as s 144
Notice of outcome of assessment
s 49 orig s 49
renum as s 145
pres s 49
(prev s 36M) reloc from Mental Health (Treatment and Care)
Act 1994 s 36M by A2015-38 amdt 2.40
renum as s 49 R1 LA (see A2015-38 amdt 2.55)
Preliminary
pt 5.1 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 5.1
by A2015-38 amdt 2.41
Definitions—ch 5
s 50 orig s 50
renum as s 146
pres s 50
(prev s 36N) reloc from Mental Health (Treatment and Care)
Act 1994 s 36N by A2015-38 amdt 2.41
renum as s 50 R1 LA (see A2015-38 amdt 2.55)
def relevant official reloc from Mental Health (Treatment and
Care) Act 1994 s 36N by A2015-38 amdt 2.41
def relevant person reloc from Mental Health (Treatment and
Care) Act 1994 s 36N by A2015-38 amdt 2.41
am A2016-32 s 13
Applications for mental health orders
pt 5.2 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 5.2
by A2015-38 amdt 2.41
Applications for mental health orders
s 51 orig s 51
renum as s 147
pres s 51
(prev s 36O) reloc from Mental Health (Treatment and Care)
Act 1994 s 36O by A2015-38 amdt 2.41
renum as s 51 R1 LA (see A2015-38 amdt 2.55)
Applicant to tell ACAT of risks
s 52 orig s 52
renum as s 148
pres s 52
(prev s 36P) reloc from Mental Health (Treatment and Care)
Act 1994 s 36P by A2015-38 amdt 2.41
renum as s 52 R1 LA (see A2015-38 amdt 2.55)
Endnotes
4
Amendment history
page 310
Mental Health Act 2015
Effective: 27/03/24
R19
27/03/24
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Making of mental health orders—preliminary matters
pt 5.3 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 5.3
by A2015-38 amdt 2.41
ACAT must consider assessment—mental health order
s 53 orig s 53
renum as s 149
pres s 53
(prev s 36Q) reloc from Mental Health (Treatment and Care)
Act 1994 s 36Q by A2015-38 amdt 2.41
renum as s 53 R1 LA (see A2015-38 amdt 2.55)
Consultation by ACAT—mental health order
s 54 orig s 54
renum as s 150
pres s 54
(prev s 36R) reloc from Mental Health (Treatment and Care)
Act 1994 s 36R by A2015-38 amdt 2.41
renum as s 54 R1 LA (see A2015-38 amdt 2.55)
ACAT must hold hearing—mental health order
s 55 orig s 55
renum as s 151
pres s 55
(prev s 36S) reloc from Mental Health (Treatment and Care)
Act 1994 s 36S by A2015-38 amdt 2.41
renum as s 55 R1 LA (see A2015-38 amdt 2.55)
Offence—unauthorised administration of electroconvulsive therapy
s 55B renum as s 152
Application for electroconvulsive therapy order
s 55C renum as s 153
Consultation by ACAT—electroconvulsive therapy order
s 55D renum as s 154
ACAT must hold hearing—electroconvulsive therapy order
s 55E renum as s 155
What ACAT must take into account—electroconvulsive therapy order
s 55F renum as s 156
Making of electroconvulsive therapy order
s 55G renum as s 157
Content of electroconvulsive therapy order
s 55H renum as s 158
Person to be told about electroconvulsive therapy order
s 55I renum as s 159
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 311
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Application for emergency electroconvulsive therapy order
s 55J renum as s 160
What ACAT must take into account—emergency electroconvulsive therapy
order
s 55JA renum as s 161
Making of emergency electroconvulsive therapy order
s 55K renum as s 162
Content of an emergency electroconvulsive therapy order
s 55L renum as s 163
What ACAT must take into account—mental health order
s 56 orig s 56
renum as s 164
pres s 56
(prev s 36T) reloc from Mental Health (Treatment and Care)
Act 1994 s 36T by A2015-38 amdt 2.41
renum as s 56 R1 LA (see A2015-38 amdt 2.55)
am A2020-43 s 4, s 5; pars renum R13 LA
ACAT must not order particular treatment, care or support—mental health
order
s 57 orig s 57
renum as s 165
pres s 57
(prev s 36U) reloc from Mental Health (Treatment and Care)
Act 1994 s 36U by A2015-38 amdt 2.41
renum as s 57 R1 LA (see A2015-38 amdt 2.55)
Psychiatric treatment orders
pt 5.4 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 5.4
by A2015-38 amdt 2.41
Psychiatric treatment order
s 58 orig s 58
renum as s 166
pres s 58
(prev s 36V) reloc from Mental Health (Treatment and Care)
Act 1994 s 36V by A2015-38 amdt 2.41
renum as s 58 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 14
Content of psychiatric treatment order
s 59 orig s 59
renum as s 167
pres s 59
(prev s 36W) reloc from Mental Health (Treatment and Care)
Act 1994 s 36W by A2015-38 amdt 2.41
renum as s 59 R1 LA (see A2015-38 amdt 2.55)
Endnotes
4
Amendment history
page 312
Mental Health Act 2015
Effective: 27/03/24
R19
27/03/24
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Criteria for making restriction order with psychiatric treatment order
s 60 orig s 60
renum as s 168
pres s 60
(prev s 36X) reloc from Mental Health (Treatment and Care)
Act 1994 s 36X by A2015-38 amdt 2.41
renum as s 60 R1 LA (see A2015-38 amdt 2.55)
Content of restriction order made with psychiatric treatment order
s 61 orig s 61
renum as s 169
pres s 61
(prev s 36Y) reloc from Mental Health (Treatment and Care)
Act 1994 s 36Y by A2015-38 amdt 2.41
renum as s 61 R1 LA (see A2015-38 amdt 2.55)
Role of chief psychiatrist—psychiatric treatment order
s 62 orig s 62
renum as s 170
pres s 62
(prev s 36Z) reloc from Mental Health (Treatment and Care)
Act 1994 s 36Z by A2015-38 amdt 2.41
renum as s 62 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 15; A2021-12 amdt 3.88
Treatment etc to be explained—psychiatric treatment order
s 63 orig s 63
renum as s 171
pres s 63
(prev s 36ZA) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZA by A2015-38 amdt 2.41
renum as s 63 R1 LA (see A2015-38 amdt 2.55)
Action if psychiatric treatment order no longer appropriate—no longer
person in relation to whom ACAT could make order
s 64 orig s 64
renum as s 172
pres s 64
(prev s 36ZB) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZB by A2015-38 amdt 2.41
renum as s 64 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 313
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Powers in relation to psychiatric treatment order
s 65 orig s 65
renum as s 173
pres s 65
(prev s 36ZC) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZC by A2015-38 amdt 2.41
renum as s 65 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 16
Community care orders
pt 5.5 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 5.5
by A2015-38 amdt 2.41
Community care order
s 66 orig s 66
renum as s 174
pres s 66
(prev s 36ZD) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZD by A2015-38 amdt 2.41
renum as s 66 R1 LA (see A2015-38 amdt 2.55)
Content of community care order
s 67 orig s 67
renum as s 175
pres s 67
(prev s 36ZE) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZE by A2015-38 amdt 2.41
renum as s 67 R1 LA (see A2015-38 amdt 2.55)
Criteria for making restriction order with community care order
s 68 orig s 68
renum as s 176
pres s 68
(prev s 36ZF) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZF by A2015-38 amdt 2.41
renum as s 68 R1 LA (see A2015-38 amdt 2.55)
Content of restriction order made with community care order etc
s 69 (prev s 36ZG) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZG by A2015-38 amdt 2.41
renum as s 69 R1 LA (see A2015-38 amdt 2.55)
Role of care coordinator—community care order
s 70 orig s 70
renum as s 177
pres s 70
(prev s 36ZH) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZH by A2015-38 amdt 2.41
renum as s 70 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Endnotes
4
Amendment history
page 314
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Recommendations about people with mental disorder or mental illness
s 70A renum as s 178
Treatment etc to be explained—community care order
s 71 orig s 71
renum as s 179
pres s 71
(prev s 36ZI) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZI by A2015-38 amdt 2.41
renum as s 71 R1 LA (see A2015-38 amdt 2.55)
Action if community care order no longer appropriate—no longer person in
relation to whom ACAT could make order
s 72 orig s 72
renum as s 180
pres s 72
(prev s 36ZJ) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZJ by A2015-38 amdt 2.41
renum as s 72 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Powers in relation to community care order
s 73 orig s 73
renum as s 181
pres s 73
(prev s 36ZK) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZK by A2015-38 amdt 2.41
renum as s 73 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 17
Limits on communication under mental health orders
pt 5.6 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 5.6
by A2015-38 amdt 2.41
Limits on communication—mental health order
s 74 orig s 74
renum as s 182
pres s 74
(prev s 36ZL) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZL by A2015-38 amdt 2.41
renum as s 74 R1 LA (see A2015-38 amdt 2.55)
Offence—limits on communication—mental health order
s 75 orig s 75
renum as s 183
pres s 75
(prev s 36ZM) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZM by A2015-38 amdt 2.41
renum as s 75 R1 LA (see A2015-38 amdt 2.55)
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 315
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Duration, contravention and review of mental health orders
pt 5.7 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 5.7
by A2015-38 amdt 2.41
Duration of mental health orders
s 76 orig s 76
renum as s 184
pres s 76
(prev s 36ZN) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZN by A2015-38 amdt 2.41
renum as s 76 R1 LA (see A2015-38 amdt 2.55)
Contravention of mental health order
s 77 orig s 77
renum as s 185
pres s 77
(prev s 36ZO) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZO by A2015-38 amdt 2.41
renum as s 77 R1 LA (see A2015-38 amdt 2.55)
am A2020-43 s 6; ss renum R13 LA; A2021-12 amdt 3.88;
A2023-44 ss 4-8; ss renum R18 LA
Contravention of mental health order—absconding from facility
s 78 orig s 78
renum as s 186
pres s 78
(prev s 36ZP) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZP by A2015-38 amdt 2.41
renum as s 78 R1 LA (see A2015-38 amdt 2.55)
Review of mental health order
s 79 hdg sub A2016-32 s 18
s 79 orig s 79
renum as s 187
pres s 79
(prev s 36ZQ) reloc from Mental Health (Treatment and Care)
Act 1994 s 36ZQ by A2015-38 amdt 2.41
renum as s 79 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 19
Notice of hearing
s 79A renum as s 188
Directions to registrar
s 79B renum as s 189
Endnotes
4
Amendment history
page 316
Mental Health Act 2015
Effective: 27/03/24
R19
27/03/24
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Apprehension
s 80 orig s 80
renum as s 190
pres s 80
(prev s 37) reloc from Mental Health (Treatment and Care)
Act 1994 s 37 by A2015-38 amdt 2.42
renum as s 80 R1 LA (see A2015-38 amdt 2.55)
am A2020-43 ss 7-9; ss renum R14 LA; A2023-44 ss 9-12;
ss renum R18 LA
Detention at approved mental health facility
s 81 orig s 81
renum as s 191
pres s 81
(prev s 38) reloc from Mental Health (Treatment and Care)
Act 1994 s 38 by A2015-38 amdt 2.42
renum as s 81 R1 LA (see A2015-38 amdt 2.55)
Copy of court order
s 82 orig s 82
renum as s 192
pres s 82
(prev s 38A) reloc from Mental Health (Treatment and Care)
Act 1994 s 38A by A2015-38 amdt 2.42
renum as s 82 R1 LA (see A2015-38 amdt 2.55)
Statement of action taken
s 83 orig s 83
renum as s 193
pres s 83
(prev s 39) renum as s 83 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 20; pars renum R4 LA
Initial examination at approved mental health facility
s 84 (prev s 40) reloc from Mental Health (Treatment and Care)
Act 1994 s 40 by A2015-38 amdt 2.43
renum as s 84 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 21
Authorisation of involuntary detention
s 85 (prev s 41) reloc from Mental Health (Treatment and Care)
Act 1994 s 41 by A2015-38 amdt 2.43
renum as s 85 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 22
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 317
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Medical examination of detained person
s 86 orig s 86
renum as s 194
pres s 86
(prev s 41AA) reloc from Mental Health (Treatment and Care)
Act 1994 s 41AA by A2015-38 amdt 2.43
renum as s 86 R1 LA (see A2015-38 amdt 2.55)
Notification of Magistrates Court about emergency detention or release from
emergency detention
s 87 orig s 87
renum as s 195
pres s 86
(prev s 41A) renum as s 87 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Treatment during detention
s 88 (prev s 41AB) renum as s 88 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 23, s 24
Notification of certain people about detention
s 89 (prev s 42) reloc from Mental Health (Treatment and Care)
Act 1994 s 42 by A2015-38 amdt 2.44
renum as s 89 R1 LA (see A2015-38 amdt 2.55)
ss renum R1 LA
Offence—communication during detention
s 90 (prev s 45) reloc from Mental Health (Treatment and Care)
Act 1994 s 45 by A2015-38 amdt 2.45
renum as s 90 R1 LA (see A2015-38 amdt 2.55)
Order for release
s 91 (prev s 46) renum as s 91 R1 LA (see A2015-38 amdt 2.55)
Duty to release
s 92 (prev s 47) renum as s 92 R1 LA (see A2015-38 amdt 2.55)
Forensic mental health orders
pt 7.1 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 7.1
by A2015-38 amdt 2.46
Preliminary
div 7.1.1 hdg reloc from Mental Health (Treatment and Care) Act 1994
div 7.1.1 by A2015-38 amdt 2.46
Endnotes
4
Amendment history
page 318
Mental Health Act 2015
Effective: 27/03/24
R19
27/03/24
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Definitions—pt 7.1
s 93 (prev s 48S) reloc from Mental Health (Treatment and Care)
Act 1994 s 48S by A2015-38 amdt 2.46
renum as s 93 R1 LA (see A2015-38 amdt 2.55)
def relevant official reloc from Mental Health (Treatment and
Care) Act 1994 by A2015-38 amdt 2.46
def relevant person reloc from Mental Health (Treatment and
Care) Act 1994 by A2015-38 amdt 2.46
am A2016-32 s 25
Application for forensic mental health orders
div 7.1.2 hdg reloc from Mental Health (Treatment and Care) Act 1994
div 7.1.2 by A2015-38 amdt 2.46
Applications for forensic mental health orders—detainees etc
s 94 (prev s 48T) reloc from Mental Health (Treatment and Care)
Act 1994 s 48T by A2015-38 amdt 2.46
renum as s 94 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 26
Relevant person to tell ACAT of risks
s 95 (prev s 48U) reloc from Mental Health (Treatment and Care)
Act 1994 s 48U by A2015-38 amdt 2.46
renum as s 95 R1 LA (see A2015-38 amdt 2.55)
Making forensic mental health orders—preliminary matters
div 7.1.3 hdg reloc from Mental Health (Treatment and Care) Act 1994
div 7.1.3 by A2015-38 amdt 2.46
ACAT must consider assessment—forensic mental health order
s 96 (prev s 48V) reloc from Mental Health (Treatment and Care)
Act 1994 s 48V by A2015-38 amdt 2.46
renum as s 96 R1 LA (see A2015-38 amdt 2.55)
Consultation by ACAT—forensic mental health order
s 97 (prev s 48W) reloc from Mental Health (Treatment and Care)
Act 1994 s 48W by A2015-38 amdt 2.46
renum as s 97 R1 LA (see A2015-38 amdt 2.55)
ACAT must hold hearing—forensic mental health order
s 98 (prev s 48X) reloc from Mental Health (Treatment and Care)
Act 1994 s 48X by A2015-38 amdt 2.46
renum as s 98 R1 LA (see A2015-38 amdt 2.55)
What ACAT must take into account—forensic mental health order
s 99 (prev s 48Y) reloc from Mental Health (Treatment and Care)
Act 1994 s 48Y by A2015-38 amdt 2.46
renum as s 99 R1 LA (see A2015-38 amdt 2.55)
pars renum R1 LA
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 319
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
ACAT must not order particular treatment, care or support—forensic mental
health order
s 100 (prev s 48Z) reloc from Mental Health (Treatment and Care)
Act 1994 s 48Z by A2015-38 amdt 2.46
renum as s 100 R1 LA (see A2015-38 amdt 2.55)
Forensic psychiatric treatment orders
div 7.1.4 hdg reloc from Mental Health (Treatment and Care) Act 1994
div 7.1.4 by A2015-38 amdt 2.46
Forensic psychiatric treatment order
s 101 (prev s 48ZA) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZA by A2015-38 amdt 2.46
renum as s 101 R1 LA (see A2015-38 amdt 2.55)
Content of forensic psychiatric treatment order
s 102 (prev s 48ZB) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZB by A2015-38 amdt 2.46
renum as s 102 R1 LA (see A2015-38 amdt 2.55)
Role of chief psychiatrist—forensic psychiatric treatment order
s 103 (prev s 48ZC) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZC by A2015-38 amdt 2.46
renum as s 103 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 27, s 28; A2021-12 amdt 3.88
Treatment etc to be explained—forensic psychiatric treatment order
s 104 (prev s 48ZD) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZD by A2015-38 amdt 2.46
renum as s 104 R1 LA (see A2015-38 amdt 2.55)
Action if forensic psychiatric treatment order no longer appropriate—no
longer person in relation to whom ACAT could make order
s 105 (prev s 48ZE) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZE by A2015-38 amdt 2.46
renum as s 105 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 ss 29-31; A2021-12 amdt 3.88
Action if forensic psychiatric treatment order no longer appropriate—no
longer necessary to detain person
s 106 (prev s 48ZF) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZF by A2015-38 amdt 2.46
renum as s 106 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 ss 32-34; A2021-12 amdt 3.88
Powers in relation to forensic psychiatric treatment order
s 107 (prev s 48ZG) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZG by A2015-38 amdt 2.46
renum as s 107 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 35
Endnotes
4
Amendment history
page 320
Mental Health Act 2015
Effective: 27/03/24
R19
27/03/24
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Forensic community care orders
div 7.1.5 hdg reloc from Mental Health (Treatment and Care) Act 1994
div 7.1.5 by A2015-38 amdt 2.46
Forensic community care order
s 108 (prev s 48ZH) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZH by A2015-38 amdt 2.46
renum as s 108 R1 LA (see A2015-38 amdt 2.55)
Content of forensic community care order
s 109 (prev s 48ZI) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZI by A2015-38 amdt 2.46
renum as s 109 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 36
Role of care coordinator—forensic community care order
s 110 (prev s 48ZJ) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZJ by A2015-38 amdt 2.46
renum as s 110 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 37; A2021-12 amdt 3.88
Treatment etc to be explained—forensic community care order
s 111 (prev s 48ZK) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZK by A2015-38 amdt 2.46
renum as s 111 R1 LA (see A2015-38 amdt 2.55)
Action if forensic community care order no longer appropriate—no longer
person in relation to whom ACAT could make order
s 112 orig s 112
renum as s 196
pres s 112
(prev s 48ZL) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZL by A2015-38 amdt 2.46
renum as s 112 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 ss 38-40; A2021-12 amdt 3.88
Action if forensic community care order no longer appropriate—no longer
necessary to detain person
s 113 orig s 113
renum as s 197
pres s 113
(prev s 48ZM) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZM by A2015-38 amdt 2.46
renum as s 113 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 ss 41-43; A2021-12 amdt 3.88
Endnotes
Amendment history
4
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Effective: 27/03/24
page 321
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Powers in relation to forensic community care order
s 114 orig s 114
renum as s 198
pres s 114
(prev s 48ZN) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZN by A2015-38 amdt 2.46
renum as s 114 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 44
Limits on communication under forensic mental health orders
div 7.1.6 hdg reloc from Mental Health (Treatment and Care) Act 1994
div 7.1.6 by A2015-38 amdt 2.46
Limits on communication—forensic mental health order
s 115 (prev s 48ZO) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZO by A2015-38 amdt 2.46
renum as s 115 R1 LA (see A2015-38 amdt 2.55)
Offence—limits on communication—forensic mental health order
s 116 orig s 116
renum as s 199
pres s 116
(prev s 48ZP) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZP by A2015-38 amdt 2.46
renum as s 116 R1 LA (see A2015-38 amdt 2.55)
Duration of forensic mental health orders
div 7.1.7 hdg reloc from Mental Health (Treatment and Care) Act 1994
div 7.1.7 by A2015-38 amdt 2.46
Duration of forensic mental health orders
s 117 (prev s 48ZQ) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZQ by A2015-38 amdt 2.46
renum as s 117 R1 LA (see A2015-38 amdt 2.55)
Leave for detained people
div 7.1.8 hdg reloc from Mental Health (Treatment and Care) Act 1994
div 7.1.8 by A2015-38 amdt 2.46
Meaning of corrections order—div 7.1.8
s 118 orig s 118
renum as s 200
pres s 118
(prev s 48ZR) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZR by A2015-38 amdt 2.46
renum as s 118 R1 LA (see A2015-38 amdt 2.55)
Endnotes
4
Amendment history
page 322
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Grant of leave for person detained by ACAT
s 119 orig s 119
renum as s 201
pres s 119
(prev s 48ZS) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZS by A2015-38 amdt 2.46
renum as s 119 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 45, s 46
Functions of mental health officers
s 119A renum as s 202
Identity cards for mental health officers
s 119B renum as s 203
Revocation of leave granted by ACAT
s 120 (prev s 48ZT) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZT by A2015-38 amdt 2.46
renum as s 120 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 47, s 48
Care coordinator
s 120A renum as s 204
Functions
s 120B renum as s 205
Ending appointment—care coordinator
s 120C renum as s 206
Delegation by care coordinator
s 120D renum as s 207
Grant of leave for person detained by relevant official
s 121 orig s 121
renum as s 208
pres s 121
(prev s 48ZU) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZU by A2015-38 amdt 2.46
renum as s 121 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 49, s 50
Leave in emergency or special circumstances
s 122 orig s 122
renum as s 209
pres s 122
(prev s 48ZV) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZV by A2015-38 amdt 2.46
renum as s 122 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 51, s 52; ss renum R4 LA
Endnotes
Amendment history
4
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Effective: 27/03/24
page 323
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Appointment of principal official visitor
s 122AA renum as s 210
Official visitor’s functions
s 122A renum as s 211
Principal official visitor’s functions
s 122BB renum as s 212
Notice to official visitor of detainee receiving mental health treatment, care
or support in correctional centre
s 122B renum as s 213
Complaint about treatment, care or support provided at place other than
visitable place
s 122C renum as s 214
Coordinating director-general
s 122D renum as s 215
Functions of coordinating director-general
s 122E renum as s 216
Coordinating director-general policies and operating procedures
s 122F renum as s 217
Definitions—pt 12.5
s 122G renum as s 218
Information sharing protocol
s 122H renum as s 219
Information sharing guidelines
s 122I renum as s 220
Information sharing—approval of agency
s 122J renum as s 221
Revocation of leave granted by relevant official
s 123 orig s 123
renum as s 222
pres s 123
(prev s 48ZW) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZW by A2015-38 amdt 2.46
renum as s 123 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 53, s 54
Contravention and review of forensic mental health orders
div 7.1.9 hdg reloc from Mental Health (Treatment and Care) Act 1994
div 7.1.9 by A2015-38 amdt 2.46
Endnotes
4
Amendment history
page 324
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Contravention of forensic mental health order
s 124 orig s 124
renum as 223
pres s 124
(prev s 48ZX) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZX by A2015-38 amdt 2.46
renum as s 124 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88; A2023-44 ss 13-15; ss renum
R18 LA
Contravention of forensic mental health order—absconding from facility
s 125 orig s 125
renum as s 224
pres s 125
(prev s 48ZY) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZY by A2015-38 amdt 2.46
renum as s 125 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 55; ss renum R4 LA; A2023-44 s 16
Review of forensic mental health order
s 126 hdg sub A2016-32 s 56
s 126 orig s 126
renum as s 225
pres s 126
(prev s 48ZZ) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZ by A2015-38 amdt 2.46
renum as s 126 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 57
Affected people
pt 7.2 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 7.2
by A2015-38 amdt 2.46
Definitions—pt 7.2
s 127 orig s 127
renum as s 226
pres s 127
(prev s 48ZZA) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZA by A2015-38 amdt 2.46
renum as s 127 R1 LA (see A2015-38 amdt 2.55)
def affected person register reloc from Mental Health
(Treatment and Care) Act 1994 by A2015-38 amdt 2.46
def director-general reloc from Mental Health (Treatment and
Care) Act 1994 by A2015-38 amdt 2.46
def forensic patient reloc from Mental Health (Treatment and
Care) Act 1994 by A2015-38 amdt 2.46
sub A2020-43 s 10
def publish reloc from Mental Health (Treatment and Care)
Act 1994 by A2015-38 amdt 2.46
Endnotes
Amendment history
4
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Effective: 27/03/24
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Meaning of affected person
s 128 orig s 128
renum as s 227
pres s 128
(prev s 48ZZB) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZB by A2015-38 amdt 2.46
renum as s 128 R1 LA (see A2015-38 amdt 2.55)
Meaning of registered affected person
s 129 orig s 129
renum as s 228
pres s 129
(prev s 48ZZC) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZC by A2015-38 amdt 2.46
renum as s 129 R1 LA (see A2015-38 amdt 2.55)
Affected person register
s 130 orig s 130
renum as s 229
pres s 130
(prev s 48ZZD) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZD by A2015-38 amdt 2.46
renum as s 130 R1 LA (see A2015-38 amdt 2.55)
Notifying people about the affected person register
s 131 orig s 131
renum as s 230
pres s 131
(prev s 48ZZE) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZE by A2015-38 amdt 2.46
renum as s 131 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Including person in affected person register
s 132 orig s 132
renum as s 231
pres s 132
(prev s 48ZZF) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZF by A2015-38 amdt 2.46
renum as s 132 R1 LA (see A2015-38 amdt 2.55)
Removing person from affected person register
s 133 orig s 133
renum as s 232
pres s 133
(prev s 48ZZG) reloc from Mental Health (Treatment and
Care) Act 1994 s 48ZZG by A2015-38 amdt 2.46
renum as s 133 R1 LA (see A2015-38 amdt 2.55)
am A2021-3 s 29, s 30
Endnotes
4
Amendment history
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Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Disclosures to registered affected people
s 134 orig s 134
renum as s 233
pres s 134
(prev s 48ZZH) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZH by A2015-38 amdt 2.46
renum as s 134 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 ss 58-60; A2016-42 amdt 3.87, amdt 3.88;
A2020-43 s 11, s 12; pars renum R13 LA
Preliminary
pt 8.1 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 8.1
by A2015-38 amdt 2.47
Meaning of correctional patient
s 135 orig s 135
renum as s 234
pres s 135
(prev s 48ZZI) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZI by A2015-38 amdt 2.47
renum as s 135 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 61
Identity cards
s 135A renum as s 235
Powers of inspection
s 135B renum as s 236
Failing to comply with requirement of inspector
s 135C renum as s 237
Transfer of correctional patients
pt 8.2 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 8.2
by A2015-38 amdt 2.47
Transfer to mental health facility
s 136 (prev s 48ZZJ) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZJ by A2015-38 amdt 2.47
renum as s 136 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 62, s 63
Return to correctional centre or detention place unless direction to remain
s 137 hdg sub A2016-32 s 64
s 137 (prev s 48ZZK) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZK by A2015-38 amdt 2.47
renum as s 137 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 ss 65-69
Endnotes
Amendment history
4
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Effective: 27/03/24
page 327
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Release etc on change of status of correctional patient
s 138 (prev s 48ZZL) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZL by A2015-38 amdt 2.47
renum as s 138 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 70, s 71
ACAT may return people to correctional centre or detention place
s 139 hdg am A2016-32 s 72
s 139 orig s 139
renum as s 238
pres s 139
(prev s 48ZZM) reloc from Mental Health (Treatment and
Care) Act 1994 s 48ZZM by A2015-38 amdt 2.47
renum as s 139 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 72
Functions of mental health advisory council
s 139A renum as s 239
Membership of mental health advisory council
s 139B renum as s 240
Procedures of mental health advisory council
s 139C renum as s 241
Purpose—ch 15
s 139CA renum as s 242
Definitions—ch 15
s 139CB renum as s 243
Authority to enter into agreements
s 139CC renum as s 244
Authorised officer and interstate authorised person may exercise certain
functions
s 139CD renum as s 245
Medication for person being transferred
s 139CE renum as s 246
Apprehension of interstate patient in breach of interstate involuntary
treatment order
s 139CF renum as s 247
Apprehension of person in breach of mental health order or forensic mental
health order
s 139CG renum as s 248
Interstate transfer—person under psychiatric treatment order or community
care order
s 139CH renum as s 249
Endnotes
4
Amendment history
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Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Interstate transfer—person under forensic psychiatric treatment order or
forensic community care order
s 139CI renum as s 250
Transfer to interstate mental health facility—emergency detention
s 139CJ renum as s 251
Interstate transfer—when ACT order stops applying
s 139CK renum as s 252
Transfer of interstate patient to approved mental health facility
s 139CL renum as s 253
Transfer of responsibility to provide treatment, care or support in the
community for interstate patient
s 139CM renum as s 254
Transfer of person apprehended in another State to approved mental health
facility
s 139CN renum as s 255
Mental health order relating to interstate person
s 139CO renum as s 256
Implementing interstate involuntary treatment order for temporary ACT
resident
s 139CP renum as s 257
Meaning of reviewable decision—ch 16
s 139CR renum as s 258
Reviewable decision notices
s 139CS renum as s 259
Applications for review
s 139CT renum as s 260
Approval of mental health facilities
s 139D renum as s 261
Approval of community care facilities
s 139E renum as s 262
Powers of entry and apprehension
s 139F renum as s 263
Review of correctional patients
pt 8.3 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 8.3
by A2015-38 amdt 2.47
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 329
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Review of correctional patient awaiting transfer to mental health facility
s 140 orig s 140
renum as s 264
pres s 140
(prev s 48ZZN) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZN by A2015-38 amdt 2.47
renum as s 140 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 73
Protection of officials from liability
s 140A renum as s 265
Report and record of use of restraint etc
s 140AA renum as s 266
Review of correctional patient transferred to mental health facility
s 141 orig s 141
renum as s 267
pres s 141
(prev s 48ZZO) reloc from Mental Health (Treatment and
Care) Act 1994 s 48ZZO by A2015-38 amdt 2.47
renum as s 141 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 74, s 75
Review of correctional patient detained at mental health facility
s 142 orig s 142
renum as s 268
pres s 142
(prev s 48ZZP) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZP by A2015-38 amdt 2.47
renum as s 142 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 ss 76-79; pars renum R4 LA
Leave for correctional patients
pt 8.4 hdg reloc from Mental Health (Treatment and Care) Act 1994 pt 8.4
by A2015-38 amdt 2.47
Definitions—pt 8.4
s 142A ins A2016-32 s 80
def health director-general ins A2016-32 s 80
def relevant director-general ins A2016-32 s 80
Grant of leave for correctional patients
s 143 orig s 143
renum as s 269
pres s 143
(prev s 48ZZQ) reloc from Mental Health (Treatment and
Care) Act 1994 s 48ZZQ by A2015-38 amdt 2.47
renum as s 143 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 ss 81-83; ss renum R4 LA
Endnotes
4
Amendment history
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Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Revocation of leave for correctional patients
s 144 (prev s 48ZZR) reloc from Mental Health (Treatment and Care)
Act 1994 s 48ZZR by A2015-38 amdt 2.47
renum as s 144 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 84, s 85; ss renum R4 LA
Transfer of custody—secure mental health facility
ch 8A hdg ins A2016-32 s 86
Transfer of custody if person admitted to secure mental health facility
s 144A ins A2016-32 s 86
Taking person to appear before court
s 144B ins A2016-32 s 86
am A2018-52 amdt 1.92
Release etc on change of status of person
s 144C ins A2016-32 s 86
Power to apprehend if person escapes from secure mental health facility
s 144D ins A2016-32 s 86
Transfers to health facilities
s 144E ins A2016-32 s 86
Escort officers
s 144F ins A2016-32 s 86
Crimes Act escape provisions
s 144G ins A2016-32 s 86
Definitions
s 145 orig s 145
renum as s 270
pres s 145
(prev s 49) renum as s 145 R1 LA (see A2015-38 amdt 2.55)
Review of certain provisions
s 145A renum as s 271
Form of consent
s 146 orig s 146
renum as s 272
pres s 146
(prev s 50) renum as s 146 R1 LA (see A2015-38 amdt 2.55)
Approved forms
s 146A renum as s 273
Endnotes
Amendment history
4
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27/03/24
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Effective: 27/03/24
page 331
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
When electroconvulsive therapy may be administered
s 147 orig s 147
renum as s 274
pres s 147
(prev s 51) renum as s 147 R1 LA (see A2015-38 amdt 2.55)
Adult with decision-making capacity
s 148 orig s 148
om LA s 89 (3)
pres s 148
(prev s 52) renum as s 148 R1 LA (see A2015-38 amdt 2.55)
Adult without decision-making capacity
s 149 orig s 149
om LA s 89 (3)
pres s 149
(prev s 53) renum as s 149 R1 LA (see A2015-38 amdt 2.55)
Young person with decision-making capacity
s 150 (prev s 54) renum as s 150 R1 LA (see A2015-38 amdt 2.55)
Young person without decision-making capacity
s 151 (prev s 55) renum as s 151 R1 LA (see A2015-38 amdt 2.55)
Offence—unauthorised administration of electroconvulsive therapy
s 152 (prev s 55B) renum as s 152 R1 LA (see A2015-38 amdt 2.55)
Application for electroconvulsive therapy order
s 153 (prev s 55C) renum as s 153 R1 LA (see A2015-38 amdt 2.55)
Consultation by ACAT—electroconvulsive therapy order
s 154 (prev s 55D) renum as s 154 R1 LA (see A2015-38 amdt 2.55)
ACAT must hold hearing—electroconvulsive therapy order
s 155 (prev s 55E) renum as s 155 R1 LA (see A2015-38 amdt 2.55)
What ACAT must take into account—electroconvulsive therapy order
s 156 (prev s 55F) renum as s 156 R1 LA (see A2015-38 amdt 2.55)
Making of electroconvulsive therapy order
s 157 (prev s 55G) renum as s 157 R1 LA (see A2015-38 amdt 2.55)
Content of electroconvulsive therapy order
s 158 (prev s 55H) renum as s 158 R1 LA (see A2015-38 amdt 2.55)
Person to be told about electroconvulsive therapy order
s 159 (prev s 55I) renum as s 159 R1 LA (see A2015-38 amdt 2.55)
Application for emergency electroconvulsive therapy order
s 160 (prev s 55J) renum as s 160 R1 LA (see A2015-38 amdt 2.55)
Endnotes
4
Amendment history
page 332
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
What ACAT must take into account—emergency electroconvulsive therapy
order
s 161 (prev s 55JA) renum as s 161 R1 LA (see A2015-38
amdt 2.55)
Making of emergency electroconvulsive therapy order
s 162 (prev s 55K) renum as s 162 R1 LA (see A2015-38 amdt 2.55)
Content of an emergency electroconvulsive therapy order
s 163 (prev s 55L) renum as s 163 R1 LA (see A2015-38 amdt 2.55)
Effect of later order
s 164 (prev s 56) renum as s 164 R1 LA (see A2015-38 amdt 2.55)
Doctor must record electroconvulsive therapy
s 165 (prev s 57) renum as s 165 R1 LA (see A2015-38 amdt 2.55)
Electroconvulsive therapy records to be kept for 5 years
s 166 (prev s 58) renum as s 166 R1 LA (see A2015-38 amdt 2.55)
Performance on people subject to orders of ACAT
s 167 (prev s 59) renum as s 167 R1 LA (see A2015-38 amdt 2.55)
Psychiatric surgery not to be performed without approval or if person
refuses
s 168 (prev s 60) renum as s 168 R1 LA (see A2015-38 amdt 2.55)
Application for approval
s 169 (prev s 61) renum as s 169 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 87
Application to be considered by committee
s 170 (prev s 62) renum as s 170 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 88
Requirement for further information
s 171 (prev s 63) renum as s 171 R1 LA (see A2015-38 amdt 2.55)
Application to be decided in accordance with committee’s recommendation
s 172 (prev s 64) renum as s 172 R1 LA (see A2015-38 amdt 2.55)
Consent of Supreme Court
s 173 (prev s 65) renum as s 173 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 89
Refusal of psychiatric surgery
s 174 (prev s 66) renum as s 174 R1 LA (see A2015-38 amdt 2.55)
Appointment of committee
s 175 (prev s 67) renum as s 175 R1 LA (see A2015-38 amdt 2.55)
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 333
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Review of certain people found unfit to plead
s 176 (prev s 68) reloc from Mental Health (Treatment and Care)
Act 1994 s 68 by A2015-38 amdt 2.48
renum as s 176 R1 LA (see A2015-38 amdt 2.55)
Recommendations about people with mental impairment
s 177 (prev s 70) reloc from Mental Health (Treatment and Care)
Act 1994 s 70 by A2015-38 amdt 2.48
renum as s 177 R1 LA (see A2015-38 amdt 2.55)
Recommendations about people with mental disorder or mental illness
s 178 (prev s 70A) reloc from Mental Health (Treatment and Care)
Act 1994 s 70A by A2015-38 amdt 2.48
renum as s 178 R1 LA (see A2015-38 amdt 2.55)
am A2023-45 amdt 1.33
Service of decisions etc
s 179 (prev s 71) reloc from Mental Health (Treatment and Care)
Act 1994 s 71 by A2015-38 amdt 2.48
renum as s 179 R1 LA (see A2015-38 amdt 2.55)
Review of detention under court order
s 180 (prev s 72) reloc from Mental Health (Treatment and Care)
Act 1994 s 72 by A2015-38 amdt 2.48
renum as s 180 R1 LA (see A2015-38 amdt 2.55)
am A2020-43 s 13; pars renum R43 LA; A2023-44 s 17, s 18
Contravention of conditions of release
s 181 (prev s 73) reloc from Mental Health (Treatment and Care)
Act 1994 s 73 by A2015-38 amdt 2.48
renum as s 181 R1 LA (see A2015-38 amdt 2.55)
Review of conditions of release
s 182 (prev s 74) reloc from Mental Health (Treatment and Care)
Act 1994 s 74 by A2015-38 amdt 2.48
renum as s 182 R1 LA (see A2015-38 amdt 2.55)
am A2020-43 s 14; ss renum R13 LA; A2023-44 s 18
Limit on detention
s 183 (prev s 75) reloc from Mental Health (Treatment and Care)
Act 1994 s 75 by A2015-38 amdt 2.48
renum as s 183 R1 LA (see A2015-38 amdt 2.55)
Meaning of subject person—ch 11
s 184 (prev s 76) reloc from Mental Health (Treatment and Care)
Act 1994 s 76 by A2015-38 amdt 2.49
renum as s 184 R1 LA (see A2015-38 amdt 2.55)
Endnotes
4
Amendment history
page 334
Mental Health Act 2015
Effective: 27/03/24
R19
27/03/24
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
When ACAT may be constituted by presidential member
s 185 (prev s 77) reloc from Mental Health (Treatment and Care)
Act 1994 s 77 by A2015-38 amdt 2.49
renum as s 185 R1 LA (see A2015-38 amdt 2.55)
am A2016-28 amdt 1.14; A2016-32 s 90; pars renum R4 LA
When ACAT must be constituted by more members
s 186 (prev s 78) reloc from Mental Health (Treatment and Care)
Act 1994 s 79 by A2015-38 amdt 2.49
renum as s 186 R1 LA (see A2015-38 amdt 2.55)
am A2016-28 amdt 1.15; A2016-32 s 91, s 92
Applications
s 187 (prev s 79) reloc from Mental Health (Treatment and Care)
Act 1994 s 79 by A2015-38 amdt 2.49
renum as s 187 R1 LA (see A2015-38 amdt 2.55)
Notice of hearing
s 188 (prev s 79A) reloc from Mental Health (Treatment and Care)
Act 1994 s 79A by A2015-38 amdt 2.49
renum as s 188 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 93, s 94; A2020-43 s 15
Directions to registrar
s 189 (prev s 79B) reloc from Mental Health (Treatment and Care)
Act 1994 s 79B by A2015-38 amdt 2.49
renum as s 189 R1 LA (see A2015-38 amdt 2.55)
am A2016-28 amdt 1.16
Appearance
s 190 (prev s 80) reloc from Mental Health (Treatment and Care)
Act 1994 s 80 by A2015-38 amdt 2.49
renum as s 190 R1 LA (see A2015-38 amdt 2.55)
pars renum R1 LA
am A2020-43 s 16; A2021-12 amdt 1.3
Separate representation of children etc
s 191 (prev s 81) reloc from Mental Health (Treatment and Care)
Act 1994 s 81 by A2015-38 amdt 2.49
renum as s 191 R1 LA (see A2015-38 amdt 2.55)
Subpoena to appear in person
s 192 (prev s 82) reloc from Mental Health (Treatment and Care)
Act 1994 s 82 by A2015-38 amdt 2.49
renum as s 192 R1 LA (see A2015-38 amdt 2.55)
Person subpoenaed in custody
s 193 (prev s 83) reloc from Mental Health (Treatment and Care)
Act 1994 s 83 by A2015-38 amdt 2.49
renum as s 193 R1 LA (see A2015-38 amdt 2.55)
Endnotes
Amendment history
4
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Effective: 27/03/24
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Hearings to be in private
s 194 (prev s 86) reloc from Mental Health (Treatment and Care)
Act 1994 s 86 by A2015-38 amdt 2.49
renum as s 194 R1 LA (see A2015-38 amdt 2.55)
Who is given a copy of the order?
s 195 (prev s 87) reloc from Mental Health (Treatment and Care)
Act 1994 s 87 by A2015-38 amdt 2.49
renum as s 195 R1 LA (see A2015-38 amdt 2.55)
pars renum R1 LA
Chief psychiatrist and mental health officers
pt 12.1 hdg reloc from Mental Health (Treatment and Care) Act 1994
pt 12.1 by A2015-38 amdt 2.50
Chief psychiatrist
s 196 (prev s 112) reloc from Mental Health (Treatment and Care)
Act 1994 s 112 by A2015-38 amdt 2.50
renum as s 196 R1 LA (see A2015-38 amdt 2.55)
Functions
s 197 (prev s 113) reloc from Mental Health (Treatment and Care)
Act 1994 s 113 by A2015-38 amdt 2.50
renum as s 197 R1 LA (see A2015-38 amdt 2.55)
am A2020-43 s 17; pars renum R13 LA
Approved code of practice
s 198 (prev s 114) reloc from Mental Health (Treatment and Care)
Act 1994 s 114 by A2015-38 amdt 2.50
renum as s 198 R1 LA (see A2015-38 amdt 2.55)
Chief psychiatrist may make guidelines
s 198A ins A2020-43 s 18
Ending appointment—chief psychiatrist
s 199 (prev s 116) reloc from Mental Health (Treatment and Care)
Act 1994 s 116 by A2015-38 amdt 2.50
renum as s 199 R1 LA (see A2015-38 amdt 2.55)
Delegation by chief psychiatrist
s 200 (prev s 118) reloc from Mental Health (Treatment and Care)
Act 1994 s 118 by A2015-38 amdt 2.50
renum as s 200 R1 LA (see A2015-38 amdt 2.55)
am A2020-43 s 19
Mental health officers
s 201 (prev s 119) reloc from Mental Health (Treatment and Care)
Act 1994 s 119 by A2015-38 amdt 2.50
renum as s 201 R1 LA (see A2015-38 amdt 2.55)
am A2018-42 amdt 1.3, amdt 1.4; A2023-44 s 19, s 20
Endnotes
4
Amendment history
page 336
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Functions of mental health officers
s 202 (prev s 119A) reloc from Mental Health (Treatment and Care)
Act 1994 s 119A by A2015-38 amdt 2.50
renum as s 202 R1 LA (see A2015-38 amdt 2.55)
Identity cards for mental health officers
s 203 (prev s 119B) reloc from Mental Health (Treatment and Care)
Act 1994 s 119B by A2015-38 amdt 2.50
renum as s 203 R1 LA (see A2015-38 amdt 2.55)
Care coordinator
pt 12.2 hdg reloc from Mental Health (Treatment and Care) Act 1994
pt 12.2 by A2015-38 amdt 2.50
Care coordinator
s 204 (prev s 120A) reloc from Mental Health (Treatment and Care)
Act 1994 s 120A by A2015-38 amdt 2.50
renum as s 204 R1 LA (see A2015-38 amdt 2.55)
Functions
s 205 (prev s 120B) reloc from Mental Health (Treatment and Care)
Act 1994 s 120B by A2015-38 amdt 2.50
renum as s 205 R1 LA (see A2015-38 amdt 2.55)
Ending appointment—care coordinator
s 206 (prev s 120C) reloc from Mental Health (Treatment and Care)
Act 1994 s 120C by A2015-38 amdt 2.50
renum as s 206 R1 LA (see A2015-38 amdt 2.55)
Delegation by care coordinator
s 207 (prev s 120D) reloc from Mental Health (Treatment and Care)
Act 1994 s 120D by A2015-38 amdt 2.50
renum as s 207 R1 LA (see A2015-38 amdt 2.55)
Official visitors
pt 12.3 hdg reloc from Mental Health (Treatment and Care) Act 1994
pt 12.3 by A2015-38 amdt 2.50
Meaning of official visitor etc
s 208 (prev s 121) reloc from Mental Health (Treatment and Care)
Act 1994 s 121 by A2015-38 amdt 2.50
renum as s 208 R1 LA (see A2015-38 amdt 2.55)
am A2019-29 amdt 1.13
Appointment of official visitors—additional suitability requirement
s 209 (prev s 122) reloc from Mental Health (Treatment and Care)
Act 1994 s 122 by A2015-38 amdt 2.50
renum as s 209 R1 LA (see A2015-38 amdt 2.55)
am A2019-29 amdt 1.14
Endnotes
Amendment history
4
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Effective: 27/03/24
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Appointment of principal official visitor
s 210 (prev s 122AA) reloc from Mental Health (Treatment and Care)
Act 1994 s 122AA by A2015-38 amdt 2.50
renum as s 210 R1 LA (see A2015-38 amdt 2.55)
om A2019-29 amdt 1.15
Official visitor’s functions
s 211 (prev s 122A) reloc from Mental Health (Treatment and Care)
Act 1994 s 122A by A2015-38 amdt 2.50
renum as s 211 R1 LA (see A2015-38 amdt 2.55)
am A2019-29 amdts 1.16-1.18
Principal official visitor’s functions
s 212 (prev s 122BB) reloc from Mental Health (Treatment and Care)
Act 1994 s 122BB by A2015-38 amdt 2.50
renum as s 212 R1 LA (see A2015-38 amdt 2.55)
om A2019-29 amdt 1.19
Notice to official visitor of detainee receiving mental health treatment, care
or support in correctional centre
s 213 (prev s 122B) reloc from Mental Health (Treatment and Care)
Act 1994 s 122B by A2015-38 amdt 2.50
renum as s 213 R1 LA (see A2015-38 amdt 2.55)
am A2019-29 amdt 1.20
Complaint about treatment, care or support provided at place other than
visitable place
s 214 (prev s 122C) reloc from Mental Health (Treatment and Care)
Act 1994 s 122C by A2015-38 amdt 2.50
renum as s 214 R1 LA (see A2015-38 amdt 2.55)
am A2019-29 amdts 1.21-1.23
Coordinating director-general
pt 12.4 hdg reloc from Mental Health (Treatment and Care) Act 1994
pt 12.4 by A2015-38 amdt 2.50
Coordinating director-general
s 215 (prev s 122D) reloc from Mental Health (Treatment and Care)
Act 1994 s 122D by A2015-38 amdt 2.50
renum as s 215 R1 LA (see A2015-38 amdt 2.55)
Functions of coordinating director-general
s 216 (prev s 122E) reloc from Mental Health (Treatment and Care)
Act 1994 s 122E by A2015-38 amdt 2.50
renum as s 216 R1 LA (see A2015-38 amdt 2.55)
Coordinating director-general policies and operating procedures
s 217 (prev s 122F) reloc from Mental Health (Treatment and Care)
Act 1994 s 122F by A2015-38 amdt 2.50
renum as s 217 R1 LA (see A2015-38 amdt 2.55)
Endnotes
4
Amendment history
page 338
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Sharing information—government agencies
pt 12.5 hdg reloc from Mental Health (Treatment and Care) Act 1994
pt 12.5 by A2015-38 amdt 2.50
Definitions—pt 12.5
s 218 (prev s 122G) reloc from Mental Health (Treatment and Care)
Act 1994 s 122G by A2015-38 amdt 2.50
renum as s 218 R1 LA (see A2015-38 amdt 2.55)
def information sharing entity reloc from Mental Health
(Treatment and Care) Act 1994 by A2015-38 amdt 2.50
def information sharing protocol reloc from Mental Health
(Treatment and Care) Act 1994 by A2015-38 amdt 2.50
def relevant information reloc from Mental Health (Treatment
and Care) Act 1994 by A2015-38 amdt 2.50
Information sharing protocol
s 219 (prev s 122H) reloc from Mental Health (Treatment and Care)
Act 1994 s 122H by A2015-38 amdt 2.50
renum as s 219 R1 LA (see A2015-38 amdt 2.55)
Information sharing guidelines
s 220 (prev s 122I) reloc from Mental Health (Treatment and Care)
Act 1994 s 122I by A2015-38 amdt 2.50
renum as s 220 R1 LA (see A2015-38 amdt 2.55)
Information sharing—approval of agency
s 221 (prev s 122J) reloc from Mental Health (Treatment and Care)
Act 1994 s 122J by A2015-38 amdt 2.50
renum as s 221 R1 LA (see A2015-38 amdt 2.55)
Definitions—ch 13
s 222 (prev s 123) renum as s 222 R1 LA (see A2015-38 amdt 2.55)
Meaning of eligible person—pt 13.2
s 223 (prev s 124) renum as s 223 R1 LA (see A2015-38 amdt 2.55)
Licence—requirement to hold
s 224 (prev s 125) renum as s 224 R1 LA (see A2015-38 amdt 2.55)
Licence—application
s 225 (prev s 126) renum as s 225 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Licence—decision on application
s 226 (prev s 127) renum as s 226 R1 LA (see A2015-38 amdt 2.55)
am A2020-43 s 20
Licence—term and renewal of licence
s 227 (prev s 128) renum as s 227 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Endnotes
Amendment history
4
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Effective: 27/03/24
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Licence—transfer of licence
s 228 (prev s 129) renum as s 228 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Licence—amendment initiated by Minister
s 229 (prev s 130) renum as s 229 R1 LA (see A2015-38 amdt 2.55)
Licence—amendment on application by licensee
s 230 (prev s 131) renum as s 230 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Licence—surrender
s 231 (prev s 132) renum as s 231 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Licence—cancellation by notice
s 232 (prev s 133) renum as s 232 R1 LA (see A2015-38 amdt 2.55)
Licence—emergency cancellation
s 233 (prev s 134) renum as s 233 R1 LA (see A2015-38 amdt 2.55)
Appointment of inspectors
s 234 (prev s 135) renum as s 234 R1 LA (see A2015-38 amdt 2.55)
Identity cards
s 235 (prev s 135A) renum as s 235 R1 LA (see A2015-38
amdt 2.55)
Powers of inspection
s 236 (prev s 135B) renum as s 236 R1 LA (see A2015-38
amdt 2.55)
Failing to comply with requirement of inspector
s 237 (prev s 135C) renum as s 237 R1 LA (see A2015-38
amdt 2.55)
Establishment of mental health advisory council
s 238 (prev s 139) reloc from Mental Health (Treatment and Care)
Act 1994 s 139 by A2015-38 amdt 2.51
renum as s 238 R1 LA (see A2015-38 amdt 2.55)
Functions of mental health advisory council
s 239 (prev s 139A) reloc from Mental Health (Treatment and Care)
Act 1999 s 139A by A2015-38 amdt 2.51
renum as s 239 R1 LA (see A2015-38 amdt 2.55)
Membership of mental health advisory council
s 240 (prev s 139B) reloc from Mental Health (Treatment and Care)
Act 1994 s 139B by A2015-38 amdt 2.51
renum as s 240 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 95
Endnotes
4
Amendment history
page 340
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Procedures of mental health advisory council
s 241 (prev s 139C) reloc from Mental Health (Treatment and Care)
Act 1994 s 139C by A2015-38 amdt 2.51
renum as s 241 R1 LA (see A2015-38 amdt 2.55)
Purpose—ch 15
s 242 (prev s 139CA) renum as s 242 R1 LA (see A2015-38
amdt 2.55)
Definitions—ch 15
s 243 (prev s 139CB) renum as s 243 R1 LA (see A2015-38
amdt 2.55)
Authority to enter into agreements
s 244 (prev s 139CC) renum as s 244 R1 LA (see A2015-38
amdt 2.55)
Authorised officer and interstate authorised person may exercise certain
functions
s 245 (prev s 139CD) renum as s 245 R1 LA (see A2015-38
amdt 2.55)
Medication for person being transferred
s 246 (prev s 139CE) renum as s 246 R1 LA (see A2015-38
amdt 2.55)
Apprehension of interstate patient in breach of interstate involuntary
treatment order
s 247 (prev s 139CF) renum as s 247 R1 LA (see A2015-38
amdt 2.55)
Apprehension of person in breach of mental health order or forensic mental
health order
s 248 (prev s 139CG) renum as s 248 R1 LA (see A2015-38
amdt 2.55)
Interstate transfer—person under psychiatric treatment order or community
care order
s 249 (prev s 139CH) renum as s 249 R1 LA (see A2015-38
amdt 2.55)
Interstate transfer—person under forensic psychiatric treatment order or
forensic community care order
s 250 (prev s 139CI) renum as s 250 R1 LA (see A2015-38
amdt 2.55)
Transfer to interstate mental health facility—emergency detention
s 251 (prev s 139CJ) renum as s 251 R1 LA (see A2015-38
amdt 2.55)
Endnotes
Amendment history
4
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27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 341
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Interstate transfer—when ACT order stops applying
s 252 (prev s 139CK) renum as s 252 R1 LA (see A2015-38
amdt 2.55)
Transfer of interstate patient to approved mental health facility
s 253 (prev s 139CL) renum as s 253 R1 LA (see A2015-38
amdt 2.55)
Transfer of responsibility to provide treatment, care or support in the
community for interstate patient
s 254 (prev s 139CM) renum as s 254 R1 LA (see A2015-38
amdt 2.55)
Transfer of person apprehended in another State to approved mental health
facility
s 255 (prev s 139CN) renum as s 255 R1 LA (see A2015-38
amdt 2.55)
Mental health order relating to interstate person
s 256 (prev s 139CO) renum as s 256 R1 LA (see A2015-38
amdt 2.55)
Implementing interstate involuntary treatment order for temporary ACT
resident
s 257 (prev s 139CP) renum as s 257 R1 LA (see A2015-38
amdt 2.55)
Meaning of reviewable decision—ch 16
s 258 (prev s 139CR) reloc from Mental Health (Treatment and
Care) Act 1994 s 139CR by A2015-38 amdt 2.52
renum as s 258 R1 LA (see A2015-38 amdt 2.55)
Reviewable decision notices
s 259 (prev s 139CS) reloc from Mental Health (Treatment and Care)
Act 1994 s 139CS by A2015-38 amdt 2.52
renum as s 259 R1 LA (see A2015-38 amdt 2.55)
Applications for review
s 260 (prev s 139CT) reloc from Mental Health (Treatment and Care)
Act 1994 s 139CT by A2015-38 amdt 2.52
renum as s 260 R1 LA (see A2015-38 amdt 2.55)
Approval of mental health facilities
s 261 (prev s 139D) reloc from Mental Health (Treatment and Care)
Act 1994 s 139D by A2015-38 amdt 2.53
renum as s 261 R1 LA (see A2015-38 amdt 2.55)
Approval of community care facilities
s 262 (prev s 139E) reloc from Mental Health (Treatment and Care)
Act 1994 s 139E by A2015-38 amdt 2.53
renum as s 262 R1 LA (see A2015-38 amdt 2.55)
Endnotes
4
Amendment history
page 342
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Powers of entry and apprehension
s 263 (prev s 139F) reloc from Mental Health (Treatment and Care)
Act 1994 s 139F by A2015-38 amdt 2.53
renum as s 263 R1 LA (see A2015-38 amdt 2.55)
pars renum R1 LA
am A2016-32 s 96; pars renum R4 LA
Powers of search and seizure
s 264 (prev s 140) reloc from Mental Health (Treatment and Care)
Act 1994 s 140 by A2015-38 amdt 2.53
renum as s 264 R1 LA (see A2015-38 amdt 2.55)
am A2016-32 s 97; pars renum R4 LA
Protection of officials from liability
s 265 (prev s 140A) reloc from Mental Health (Treatment and Care)
Act 1994 s 140A by A2015-38 amdt 2.53
renum as s 265 R1 LA (see A2015-38 amdt 2.55)
Report and record of use of restraint etc
s 266 (prev s 140AA) reloc from Mental Health (Treatment and Care)
Act 1994 s 140AA by A2015-38 amdt 2.53
renum as s 266 R1 LA (see A2015-38 amdt 2.55)
am A2021-12 amdt 3.88
Appeals from ACAT to Supreme Court
s 267 (prev s 141) reloc from Mental Health (Treatment and Care)
Act 1994 s 141 by A2015-38 amdt 2.53
renum as s 267 R1 LA (see A2015-38 amdt 2.55)
Relationship with Guardianship and Management of Property Act
s 268 (prev s 142) reloc from Mental Health (Treatment and Care)
Act 1994 s 142 by A2015-38 amdt 2.53
renum as s 268 R1 LA (see A2015-38 amdt 2.55)
Relationship with Powers of Attorney Act
s 269 (prev s 143) reloc from Mental Health (Treatment and Care)
Act 1994 s 143 by A2015-38 amdt 2.53
renum as s 269 R1 LA (see A2015-38 amdt 2.55)
Certain rights unaffected
s 270 (prev s 145) reloc from Mental Health (Treatment and Care)
Act 1994 s 145 by A2015-38 amdt 2.53
renum as s 270 R1 LA (see A2015-38 amdt 2.55)
Review of certain provisions
s 271 hdg om R16 LA
s 271 (prev s 145A) reloc from Mental Health (Treatment and Care)
Act 1994 s 145A by A2015-38 amdt 2.53
renum as s 271 R1 LA (see A2015-38 amdt 2.55)
am A2017-28 amdt 3.27
Endnotes
Amendment history
4
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Effective: 27/03/24
page 343
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
(4), (5) exp 1 March 2019 (s 271 (5))
(1)-(3) exp 1 March 2021 (s 271 (3))
Reviews by Minister and director-general
s 271A ins A2020-43 s 21
exp 28 August 2029 (s 271A (5))
Determination of fees
s 272 (prev s 146) reloc from Mental Health (Treatment and Care)
Act 1994 s 146 by A2015-38 amdt 2.53
renum as s 272 R1 LA (see A2015-38 amdt 2.55)
Approved forms
s 273 (prev s 146A) reloc from Mental Health (Treatment and Care)
Act 1994 s 146A by A2015-38 amdt 2.53
renum as s 273 R1 LA (see A2015-38 amdt 2.55)
om A2021-12 amdt 3.89
Regulation-making power
s 274 (prev s 147) reloc from Mental Health (Treatment and Care)
Act 1994 s 147 by A2015-38 amdt 2.53
renum as s 274 R1 LA (see A2015-38 amdt 2.55)
Repeals and consequential amendments
ch 18 hdg om LA s 89 (4)
Transitional—Mental Health Amendment Act 2023
ch 20 hdg ins A2023-44 s 21
exp 16 November 2025 (s 304)
Meaning of commencement day—ch 20
s 300 ins A2023-44 s 21
exp 16 November 2025 (s 304)
Contravention of mental health order before commencement day
s 301 ins A2023-44 s 21
exp 16 November 2025 (s 304)
Contravention of forensic mental health order before commencement day
s 302 ins A2023-44 s 21
exp 16 November 2025 (s 304)
ACAT order not made before commencement day
s 303 ins A2023-44 s 21
exp 16 November 2025 (s 304)
Expiry—ch 20
s 304 ins A2023-44 s 21
exp 16 November 2025 (s 304)
Transitional
ch 40 hdg exp 1 March 2018 (s 402)
Endnotes
4
Amendment history
page 344
Mental Health Act 2015
Effective: 27/03/24
R19
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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
General
pt 40.1 hdg exp 1 March 2018 (s 402)
Definitions—ch 40
s 400 exp 1 March 2018 (s 402)
def commencement day exp 1 March 2018 (s 402)
def repealed Act exp 1 March 2018 (s 402)
Transitional regulations
s 401 exp 1 March 2018 (s 402)
Expiry—ch 40
s 402 exp 1 March 2018 (s 402)
Transitional—rights of people with mental disorder or mental illness
pt 40.2 hdg exp 1 March 2018 (s 402)
Rights in relation to information and communication
s 403 exp 1 March 2018 (s 402)
Transitional—mental health orders
pt 40.3 hdg exp 1 March 2018 (s 402)
Applications
div 40.3.1 hdg exp 1 March 2018 (s 402)
Application by person with mental illness or mental dysfunction—unfinished
applications
s 404 exp 1 March 2018 (s 402)
Application by chief psychiatrist or care coordinator—unfinished
applications
s 405 exp 1 March 2018 (s 402)
Application by certain other people—unfinished applications
s 406 exp 1 March 2018 (s 402)
Application by referring officers—unfinished referrals
s 407 exp 1 March 2018 (s 402)
Psychiatric treatment orders
div 40.3.2 hdg exp 1 March 2018 (s 402)
Psychiatric treatment order—in force before commencement day
s 408 exp 1 March 2018 (s 402)
Restriction order with psychiatric treatment order—in force before
commencement day
s 409 exp 1 March 2018 (s 402)
Chief psychiatrist role—determination in force before commencement day
s 410 exp 1 March 2018 (s 402)
Endnotes
Amendment history
4
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 345
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Action if psychiatric treatment order no longer appropriate—notice given but
not considered by ACAT
s 411 exp 1 March 2018 (s 402)
Community care orders
div 40.3.3 hdg exp 1 March 2018 (s 402)
Community care order—in force before commencement day
s 412 exp 1 March 2018 (s 402)
Restriction order with community care order—in force before
commencement day
s 413 exp 1 March 2018 (s 402)
Care coordinator role—determination in force before commencement day
s 414 exp 1 March 2018 (s 402)
Action if community care order no longer appropriate—notice given but not
considered by ACAT
s 415 exp 1 March 2018 (s 402)
Other matters
div 40.3.4 hdg exp 1 March 2018 (s 402)
Forensic mental health orders—people required to submit to ACAT
jurisdiction before commencement day
s 416 exp 1 March 2018 (s 402)
Transitional—emergency detention
pt 40.4 hdg exp 1 March 2018 (s 402)
Apprehension before commencement day
s 417 exp 1 March 2018 (s 402)
Authorisation of involuntary detention before commencement day
s 418 exp 1 March 2018 (s 402)
Transitional—interstate application of mental health laws
pt 40.5 hdg exp 1 March 2018 (s 402)
Interstate agreements notified before commencement day
s 419 exp 1 March 2018 (s 402)
Legislation amended
sch 2 om LA s 89 (3)
Dictionary
dict am A2016-13 amdt 1.96; A2018-52 amdt 1.93; A2020-43 s 22
def ACAT mental health provision om A2017-28 amdt 3.28
def affected person register sub A2017-28 amdt 3.29
def general president om A2016-28 amdt 1.17
def health director-general ins A2016-32 s 98
def intensive therapy order ins A2023-45 amdt 1.34
Endnotes
4
Amendment history
page 346
Mental Health Act 2015
Effective: 27/03/24
R19
27/03/24
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
def interim intensive therapy order ins A2023-45 amdt 1.34
def interim therapeutic protection order om A2023-45
amdt 1.35
def president ins A2016-28 amdt 1.18
def principal official visitor om A2019-29 amdt 1.24
def psychiatrist am A2016-32 s 99
def relevant director-general ins A2016-32 s 100
def restraint ins A2023-44 s 22
def secure mental health facility ins A2016-32 s 101
def victims of crime commissioner om A2016-13 amdt 1.97
Endnotes
Earlier republications
5
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Effective: 27/03/24
page 347
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
5 Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to
the publication order.
Since 12 September 2001 every authorised republication has been published in
electronic pdf format on the ACT legislation register. A selection of authorised
republications have also been published in printed format. These republications are
marked with an asterisk (*) in column 1. Electronic and printed versions of an
authorised republication are identical.
Republication
No and date
Effective
Last
amendment
made by
Republication
for
R1
1 Mar 2016
1 Mar 2016–
31 Mar 2016
not amended
new Act, relocation
of provisions from
the Mental Health
(Treatment and
Care) Act 1994 and
general
renumbering
R2
1 Apr 2016
1 Apr 2016–
15 June 2016
A2016-13
amendments by
A2016-13
R3
16 June 2016
16 June 2016–
20 June 2016
A2016-28
amendments by
A2016-28
R4
21 June 2016
21 June 2016–
30 Apr 2017
A2016-32
amendments by
A2016-32
R5
1 May 2017
1 May 2017–
10 Oct 2017
A2017-10
amendments by
A2016-42 as
amended by
A2017-10
R6
11 Oct 2017
11 Oct 2017–
1 Mar 2018
A2017-28
amendments by
A2017-28
R7
2 Mar 2018
2 Mar 2018–
21 Nov 2018
A2017-28
expiry of
transitional
provisions (ch 40)
R8
22 Nov 2018
22 Nov 2018–
1 Mar 2019
A2018-42
amendments by
A2018-42
Endnotes
5
Earlier republications
page 348
Mental Health Act 2015
Effective: 27/03/24
R19
27/03/24
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Republication
No and date
Effective
Last
amendment
made by
Republication
for
R9
2 Mar 2019
2 Mar 2019–
2 Oct 2019
A2018-42
expiry of provisions
(s 271 (4), (5))
R10
3 Oct 2019
3 Oct 2019–
30 Nov 2019
A2019-29
amendments by
A2019-29
R11
1 Dec 2019
1 Dec 2019–
1 Apr 2020
A2019-29
amendments by
A2018-52
as amended by
A2019-18
R12
2 Apr 2020
2 Apr 2020–
27 Aug 2020
A2019-29
amendments by
A2019-29
R13
28 Aug 2020
28 Aug 2020–
11 Feb 2021
A2020-43
amendments by
A2020-43
R14
12 Feb 2021
12 Feb 2021–
25 Feb 2021
A2020-43
amendments by
A2020-43
R15
26 Feb 2021
26 Feb 2021–
1 Mar 2021
A2021-3
amendments by
A2021-3
R16
2 Mar 2021
2 Mar 2021–
22 June 2021
A2021-3
expiry of provisions
(s 271 (1)-(3))
R17
23 June 2021
23 June 2021–
15 Nov 2023
A2021-12
amendments by
A2021-12
R18
16 Nov 2023
16 Nov 2023–
26 Mar 2024
A2023-44
amendments by
A2023-44
Endnotes
Expired transitional or validating provisions
6
R19
27/03/24
Mental Health Act 2015
Effective: 27/03/24
page 349
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
6 Expired transitional or validating provisions
This Act may be affected by transitional or validating provisions that have expired.
The expiry does not affect any continuing operation of the provisions (see
Legislation Act 2001, s 88 (1)).
Expired provisions are removed from the republished law when the expiry takes
effect and are listed in the amendment history using the abbreviation ‘exp’ followed
by the date of the expiry.
To find the expired provisions see the version of this Act before the expiry took
effect. The ACT legislation register has point-in-time versions of this Act.
7 Renumbered provisions
This Act was renumbered under the Legislation Act 2001, in R1 (see A2015-38
sch 2 amdt 2.55). Details of renumbered provisions are shown in endnote 4
(Amendment history). For a table showing the renumbered provisions, see R7.
© Australian Capital Territory 2024
