Mental Health Act 1996

Mental Health Act 1996

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

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

PART 1 - Preliminary

1.   Short title

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

2.   Commencement

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

3.   Interpretation

In this Act, unless the contrary intention appears –

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

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

approved psychiatric nurse means a psychiatric nurse who is approved by the controlling authority of an approved hospital to exercise powers conferred under this Act;

assessment centre means –

(a) an approved hospital; or

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

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

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

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

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

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

contravene includes fail to comply with;

controlling authority means –

(a) in the case of a hospital or assessment centre administered under the Health (Regional Boards) Act 1991 , the Board maintaining and operating the hospital or assessment centre under that Act; or

(b) in the case of any other hospital or assessment centre, the body or person responsible for administering the hospital or assessment centre;

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

Court means the Supreme Court;

Deputy President means the Deputy President of the Tribunal;

determination of the Tribunal includes an order, direction or requirement;

Director means the Director of Corrective Services;

guardian means –

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

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

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

harm includes serious mental or physical deterioration;

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

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

involuntary patient means a person in respect of whom an order is in force under this Act;

jurisdiction of the Tribunal includes all powers and functions of the Tribunal;

mental illness has the meaning given by section 4 ;

official visitor means a person appointed as an official visitor under section 73 ;

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

person responsible has the meaning given by section 5 ;

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

President means the President of the Tribunal;

psychiatric nurse means a registered nurse holding an authorisation to practise psychiatric nursing;

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

registrar means the registrar of the Tribunal;

regulations means regulations made and in force under this Act;

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

Secretary means the Secretary of the Department;

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

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

Tribunal means the Mental Health Tribunal established under Part 9 .

4.   Meaning of "mental illness"

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

(a) serious distortion of perception or thought; or

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

(c) serious mood disorder; or

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

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

(a) antisocial behaviour; or

(b) intellectual or behavioural nonconformity; or

(c) intellectual disability; or

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

5.   Meaning of "person responsible"

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

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

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

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

(i) his or her guardian;

(ii) his or her spouse;

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

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

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

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

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

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

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

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

(5)  For the purposes of this section –

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

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

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

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

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

6.   Objects of Act

The objects of this Act are –

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

(b) to ensure that involuntary patients with mental illnesses are provided with appropriate information about their statutory and other rights; and

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

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

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

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

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

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

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

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

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

(j) to encourage the care and treatment of persons with mental illnesses in the community and to design and coordinate an integrated system of community support services for persons with mental illnesses who are being cared for in the community.

7.   Principle of minimum interference with civil rights

In exercising powers conferred by this Act in relation to an involuntary patient, the following principles must be observed:

(a) restrictions on the liberty of the patient and interference with the patient's rights, dignity and self-respect must be kept to the minimum consistent with the need to protect the patient and others;

(b) effect must, if practicable, be given to the patient's wishes so far as that is consistent with –

(i) the patient's best interests; and

(ii) the need to protect the patient and others.

8.   Crown to be bound

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

PART 2 - Administration

Division 1 - Approval of hospitals and assessment centres

9.   Approval of hospitals

(1)  The Minister may, on application by the controlling authority of a hospital, approve the hospital or part of the hospital for the care and treatment of involuntary patients with mental illnesses.

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

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

(b) the controlling authority of the hospital is a suitable body or person to be in charge of a place approved for the care and treatment of involuntary patients with mental illnesses.

(3)  An approval may be granted under this section on conditions the Minister considers appropriate.

10.   Approval of assessment centres

(1)  The Minister may, on application by the controlling authority of an assessment centre, approve the assessment centre for the care and treatment of involuntary patients with mental illnesses.

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

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

(b) the controlling authority of the assessment centre is a suitable body or person to be in charge of a place approved for the care and treatment of involuntary patients with mental illnesses.

(3)  An approval may be granted under this section on conditions the Minister considers appropriate.

11.   Revocation of approval

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

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

(a) give the controlling authority of the hospital or assessment centre written notice of the proposed cancellation of the approval; and

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

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

Division 2 - Approval of medical practitioners and authorised officers

12.   Approval of medical practitioners

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

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

13.   Authorised officers

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

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

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

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

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

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

Division 3 - Delegation of ministerial powers

14.   Delegation

The Minister may, by instrument in writing, delegate any of the Minister's functions or powers under this Act (other than this power of delegation).

PART 3 - Power to deal with persons with mental illness

15.   Power to take person into protective custody

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

(a) a person has a mental illness; and

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

the officer may take the person into protective custody.

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

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

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

(b) may use reasonable force.

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

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

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

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

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

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

PART 4 - Admission to approved hospitals

Division 1 - Admission generally

17.   Admission of patients

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

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

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

(c) under an initial order or a continuing care order.

18.   Preference to be given to voluntary admission

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

Division 2 - Voluntary admissions

19.   Voluntary admission

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

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

(b) the person –

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

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

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

20.   Refusal of admission

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

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

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

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

21.   Second opinion on refusal of admission

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

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

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

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

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

22.   Rights of voluntary patient to discharge

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

23.   Assessment of voluntary patients seeking discharge

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

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

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

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

Division 3 - Involuntary admission

24.   Criteria for detention as involuntary patient

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

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

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

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

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

25.   Who may make application for involuntary admission

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

(a) an authorised officer; or

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

26.   Initial order for admission

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

(2)  An initial order is to specify –

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

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

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

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

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

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

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

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

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

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

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

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

27.   Cessation of initial order

An initial order ceases to have effect –

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

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

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

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

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

28.   Continuing care order

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

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

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

(i) an initial order; or

(ii) a community treatment order.

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

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

(4)  A continuing care order is to specify –

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

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

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

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

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

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

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

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

29.   Term and renewal of continuing care order

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

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

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

(b) the Tribunal, on review of the order, discharges the order; or

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

(d) the order is not renewed or further renewed at the end of the term for which the order was made or last renewed.

30.   Rectification of orders

If, within 14 days after a patient is admitted to an approved hospital under an initial order or a continuing care order, the order is found to be in any respect incorrect or defective, the order may, within that period and with the consent of the controlling authority of the approved hospital, be amended by a medical practitioner who signed it, so long as the error does not affect the sufficiency of the grounds on which the order was made.

PART 5 - Medical treatment of patients in approved hospitals

Division 1 - Medical treatment generally

31.   Treatment of patients generally

Medical treatment may be administered to a patient –

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

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

32.   Medical treatment for patients who refuse treatment

(1)  In this section –

medical treatment does not include –

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

(b) termination of pregnancy; or

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

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

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

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

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

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

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

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

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

Division 2 - Informed consent

33.   Requirements for informed consent

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

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

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

(c) the patient has not withdrawn the consent.

(2)  The medical practitioner who is responsible for a patient's medical treatment must give the patient –

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

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

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

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

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

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

Division 1 - Restraint and seclusion

34.   Physical restraint

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

(a) is necessary –

(i) for medical treatment of the patient; or

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

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

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

(c) is applied for no longer than authorised or if the restraint is in accordance with guidelines issued by the Tribunal.

35.   Seclusion of involuntary patients

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

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

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

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

(2)  Where a patient is kept in seclusion –

(a) the patient must –

(i) be visited by a member of the nursing staff at intervals of not more than 15 minutes or in accordance with guidelines issued by the Tribunal; and

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

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

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

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

36.   Monthly reports on bodily restraint and seclusion

Any occasion where an involuntary patient in an approved hospital is placed under bodily restraint or kept in seclusion is to be reported to the Tribunal in accordance with section 71 .

Division 2 - Leave of absence

37.   Leave of absence

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

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

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

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

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

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

Division 3 - Return of involuntary patients to hospital

38.   Return of involuntary patients to approved hospital

(1)  If an involuntary patient –

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

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

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

(2)  This section does not apply if –

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

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

Division 4 - Transfer of involuntary patients between approved hospitals

39.   Transfer of involuntary patient

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

(a) the transfer is necessary or desirable –

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

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

(b) the controlling authorities agree to the transfer.

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

(3)  When the patient is transferred, an order for detention of the patient has effect as if it provided for the detention of the patient in the approved hospital to which the patient is transferred.

(4)  The Tribunal may, on application by the patient, a person responsible for the patient or another person who satisfies that Tribunal that he or she has a proper interest in the matter, review a decision to transfer a patient under this section.

(5)  On a review under subsection (4) , the Tribunal may confirm, vary or revoke the decision and give consequential directions.

PART 7 - Community treatment

Division 1 - Criteria for making community treatment order

40.   Criteria for making community treatment order

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

(a) the person has a mental illness; and

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

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

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

Division 2 - Making and renewal of community treatment order

41.   Making of community treatment order

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

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

42.   Requirements of community treatment order

A community treatment order is to specify –

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

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

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

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

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

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

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

43.   Requirements of patient under community treatment order

A community treatment order may –

(a) require the patient to take or submit to the administration of medical treatment as specified by the order or as decided by a medical practitioner nominated in the order; or

(b) require the patient to attend as an outpatient at a nominated treatment centre at specified intervals or as directed by a medical practitioner nominated in the order; or

(c) require the patient to comply with other requirements specified in the order or to be specified by a person nominated in the order.

44.   Term and renewal of community treatment order

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

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

(3)  If the person to whom a community treatment order relates is admitted as a voluntary or involuntary patient in an approved hospital, the order is suspended while the person remains a patient in the hospital and revives on the discharge of the person from the hospital.

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

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

(b) the Tribunal, on review of the order, discharges the order; or

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

(d) the patient remains in an approved hospital as a patient for 3 months.

PART 8 - Involuntary patients' rights to information

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

(1)  Where an order is made under this Act, the person in respect of whom the order is made and the person responsible for him or her must each be given an information statement in a form approved by the Secretary setting out –

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

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

(2)  As soon as practicable after –

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

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

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

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

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

(e) the patient's right to have the relevant order reviewed and the procedure for having it reviewed; and

(f) any further information required under the regulations.

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

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

46.   Monthly reports

Any occasion where information is excluded from an information statement as mentioned in section 45 (3) is to be reported to the Tribunal in accordance with section 72 .

47.   Further explanations to be given by medical practitioner

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

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

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

(c) for any other reason –

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

PART 9 - The Tribunal

Division 1 - Establishment of the Tribunal

48.   Establishment of Tribunal

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

(2)  The Tribunal consists of –

(a) a President, who must be a qualified legal practitioner of not less than 7 years' standing; and

(b) at least 5 other members as may be necessary for the proper functioning of the Tribunal, of whom one is to be Deputy President and one is to be an approved medical practitioner.

(3)  Schedule 1 has effect with respect to the members and staff of the Tribunal.

49.   Tribunal to sit in divisions

(1)  The Tribunal may sit in divisions.

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

(3)  In choosing the member or members to constitute a division of the Tribunal, the President must have regard to –

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

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

(4)  The President may himself or herself constitute a division, or be a member of a division, of the Tribunal.

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

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

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

50.   Tribunal may act by majority

(1)  If the Tribunal is constituted of 3 or more members –

(a) the Tribunal may proceed with the hearing and determination of proceedings in the absence of one member; and

(b) a decision in which the majority of the members agree is a decision of the Tribunal.

(2)  An act or decision of the Tribunal is not invalidated by reason only of a defect or irregularity in –

(a) the appointment of a member; or

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

Division 2 - The Tribunal's functions

51.   Functions of Tribunal

The functions of the Tribunal are –

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

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

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

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

(e) to carry out the other functions conferred on the Tribunal under this or any other Act.

52.   Reviews of continuing care orders and community treatment orders

(1)  The Tribunal must review a continuing care order or a community treatment order within 28 days after the date when the order is made.

(2)  The Tribunal must review a continuing care order or a community treatment order within 28 days after the date when the order is renewed.

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

(4)  In addition to the mandatory reviews required under this section, the Tribunal must, subject to subsection (5) , review –

(a) a continuing care order; or

(b) a community treatment order; or

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

(d) the transfer of a person under Part 12 –

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

(5)  The Tribunal may decline to carry out a review on application under subsection (4) if –

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

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

(6)  The Tribunal may combine a review under subsection (4) with a mandatory review.

53.   Applications for review

(1)  An application for review of a decision or order that is subject to review under this Act may be made in writing to the registrar.

(2)  The application must state the grounds on which the applicant seeks a review of the decision or order.

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

(a) to make out applications for review of decisions or orders under this Act affecting the involuntary patients; and

(b) to lodge the applications with the registrar.

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

(5)  An application for review may be heard by the Tribunal notwithstanding that the patient to whom the application relates has been released from detention.

54.   Notification and hearing of review

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

(a) the involuntary patient; and

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

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

(d) any other person to whom the Tribunal directs that notice should be given.

(2)  A review sought under section 53 is to be heard within 21 days after the date when the application is made unless another review under this Act is to be heard within 35 days after that date.

Division 3 - The Tribunal's proceedings

55.   Times and places of sittings

The Tribunal is to sit at times and places determined by the President.

56.   General principles for hearings by Tribunal

(1)  The Tribunal, in hearing a matter, including a review of a decision or order or any incidental question relating to the detention of a person –

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

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

(2)  The Tribunal must avoid unnecessary formality.

57.   Representation in proceedings before Tribunal

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

(2)  A party to proceedings before the Tribunal is entitled to be present when the Tribunal hears the proceedings.

(3)  A party to proceedings before the Tribunal may appear personally in the proceedings or be represented by a legal practitioner or other person.

(4)  The registrar may make arrangements, including adjournment of the proceedings, for the representation of a party to proceedings before the Tribunal.

58.   Evidence before Tribunal

(1)  The Tribunal is not bound by the rules of evidence but may inform itself as it thinks fit.

(2)  Evidence before the Tribunal –

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

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

(3)  An oath to a witness may be administered by any member of the Tribunal.

(4)  Evidence given before the Tribunal is not admissible in civil or criminal proceedings other than –

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

(b) proceedings for an offence committed at, or arising out of, a hearing before the Tribunal.

(5)  A person who appears as a witness before the Tribunal has the same protection as a witness in proceedings before the Court.

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

59.   Summonses to witnesses

(1)  The Tribunal may, on its own initiative or on the application of a party to proceedings, direct the registrar to serve on any person a summons to appear before the Tribunal to give evidence or to produce books, papers or other documents specified in the summons.

(2)  The summons must be served personally, by post or as directed by the Tribunal, and the Tribunal may in an appropriate case direct substituted service of the summons.

60.   Power to require reports, &c.

The Tribunal may require the controlling authority of an approved hospital to provide it with –

(a) a report on a patient to whom proceedings before the Tribunal relate; or

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

61.   Medical examinations

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

(2)  The Tribunal may, by notice in writing, require a patient to whom proceedings before the Tribunal relate to submit to a medical examination by a specified medical practitioner who may be a member of the Tribunal.

(3)  The Tribunal must not require a patient to submit to a medical examination unless, having regard to the relevant inquiry, it is reasonable to require that examination.

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

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

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

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

(6)  The medical practitioner who carries out the medical examination must provide the Tribunal and the patient with a written report on the results of that examination.

62.   Visits by Tribunal

The Tribunal or any one or more of its members may visit and interview in private any patient by or in respect of whom an application has been made to the Tribunal.

63.   Right of Public Guardian and Secretary to intervene

The Public Guardian and the Secretary may intervene and be represented in any proceedings before the Tribunal.

64.   Proceedings to be closed

(1)  All proceedings before the Tribunal are closed to members of the public unless the Tribunal otherwise orders.

(2)  Where proceedings before the Tribunal are open to the public, a person who is directly interested in the proceedings may request the Tribunal to have the proceedings or part of the proceedings closed to the public.

(3)  On a request under subsection (2) , the Tribunal may direct that any person –

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

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

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

(4)  Where a person hinders or disrupts the proper conduct of the proceedings, the Tribunal may direct that he or she be excluded from the hearing.

Division 4 - Determinations of the Tribunal

65.   Powers of Tribunal on review

(1)  The Tribunal may, on review of a decision or order under this Act –

(a) confirm or vary the decision or order, or revoke the decision or order and substitute a different decision or order; and

(b) give such directions necessary to ensure compliance with the Tribunal's determination; and

(c) give other directions the Tribunal considers necessary or desirable in the interests of the person to whom the decision or order relates.

(2)  The Tribunal may, on its own initiative or on application by a party to proceedings before the Tribunal, correct an error in a determination.

66.   Evidence of Tribunal's determination

(1)  A determination by the Tribunal must be signed by a member of the Tribunal or the registrar.

(2)  All courts and persons acting judicially must take judicial notice of the signature of any person who is or has been the President, the registrar or a member of the Tribunal and of the fact that that person is or was the President, the registrar or a member, as the case may be.

(3)  In any legal proceeding a document purporting to be signed by the President and to be a copy of a determination made by the Tribunal under this Act is evidence of the determination.

67.   Obligation to comply with determinations

A person who contravenes a determination of the Tribunal is guilty of an offence and liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a term of one year, or both.

Division 5 - Miscellaneous

68.   Register

The registrar must keep a register of –

(a) applications to the Tribunal; and

(b) the Tribunal's determinations.

69.   Annual report of Tribunal

(1)  The Tribunal must, in respect of each financial year, prepare an annual report giving full particulars of the exercise of its powers under this Act during the financial year and must furnish the Minister with the report before the following 30 September.

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

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

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

(1)  The senior approved medical practitioner in an approved hospital to which a patient is admitted under a continuing care order must, within 48 hours after that admission, notify the registrar in writing of –

(a) the admission of the patient; or

(b) any renewal of the order; or

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

as the case may be.

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

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

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

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

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

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

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

71.   Monthly reports on bodily restraint and seclusion

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

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

(a) the name of the patient; and

(b) the form of restraint used; and

(c) the reasons for the restraint; and

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

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

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

(a) the name of the patient; and

(b) the place of seclusion; and

(c) the reasons for the seclusion; and

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

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

72.   Requirement to notify withholding of information

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

PART 11 - Official visitors

Division 1 - Appointment

73.   Appointment of official visitors

(1)  The Governor may, on the recommendation of the Minister, appoint official visitors.

(2)  An appointment is to be made –

(a) for a region specified in the instrument of appointment; or

(b) for a nominated approved hospital –

and for each region or hospital one of the official visitors is to be appointed as coordinator to arrange the visits and the exercise of the other functions of the official visitors.

(3)  A person is not eligible for appointment if the person –

(a) holds an office in the Department; or

(b) has an interest in a contract with the Crown or an approved hospital; or

(c) has a financial interest in an approved hospital.

74.   Terms and conditions of appointment

(1)  An appointment as an official visitor is made –

(a) for a term, not exceeding 3 years, specified in the instrument of appointment; and

(b) on terms and conditions specified in the instrument of appointment.

(2)  An official visitor –

(a) is entitled to such remuneration and allowances as the Minister may approve; and

(b) [Section 74 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] is not, as an official visitor, subject to the State Service Act 2000 .

(3)  An appointment as official visitor terminates if the official visitor –

(a) resigns by written notice of resignation given to the Minister; or

(b) is convicted of an indictable offence, or an offence which, if committed in Tasmania, would be an indictable offence; or

(c) becomes incapable of performing the duties of an official visitor; or

(d) is removed from office as an official visitor by the Governor.

Division 2 - Functions of official visitor

75.   Functions of official visitor

An official visitor has the following functions:

(a) to examine the adequacy of the services for the assessment and treatment of mental illnesses in the region or in the approved hospital for which the official visitor is appointed;

(b) to examine the appropriateness and standard of facilities for the accommodation, assessment, care and treatment of persons with mental illnesses in the relevant region or approved hospital;

(c) to investigate the opportunities and examine the facilities for the recreation, occupation, education, training and rehabilitation of persons receiving care or treatment for mental illness in the relevant region or approved hospital;

(d) to investigate any suspected contravention of this Act in the care or treatment of persons with mental illnesses and, in particular, unnecessary bodily restraint, seclusion or other restriction on freedom;

(e) to visit patients and assess the adequacy of their care and treatment;

(f) to investigate complaints made by persons receiving care or treatment for mental illness.

76.   Exercise of functions by panels of official visitors

(1)  Official visitors may act individually or in panels.

(2)  A panel of official visitors consists of 2 official visitors.

Division 3 - Visits by official visitor

77.   Visiting approved hospitals

(1)  An official visitor, or a panel of official visitors, must visit an approved hospital in accordance with arrangements made by the coordinating official visitor and may visit it at any other time.

(2)  A visit to an approved hospital is to be made at least once a month and may be made without notice.

(3)  An official visitor may require the senior approved medical practitioner of an approved hospital or another member of staff who appears to be in a position to do so –

(a) to facilitate inspection of the approved hospital by the official visitor or the panel; and

(b) to produce for inspection by the official visitor or the panel records relating to the admission, care and treatment of patients in the hospital; and

(c) to arrange interviews between the official visitor or the panel and patients in the hospital; and

(d) to answer questions about the care or treatment of patients.

(4)  A person must comply with a request under subsection (3) .

Penalty:  Fine not exceeding 20 penalty units.

78.   Controlling authority to facilitate visits on request

If a patient in an approved hospital asks a member of staff to arrange a visit by an official visitor, the controlling authority of the hospital must pass on details of the request to an official visitor as soon as practicable after it is made.

Penalty:  Fine not exceeding 10 penalty units.

Division 4 - Reports by official visitors

79.   Reports of suspected contravention of this Act

If an official visitor suspects on reasonable grounds a contravention of this Act in relation to the care or treatment of a patient with a mental illness, the official visitor must report the suspicion and the grounds on which it is held to the Tribunal.

80.   Reports at the Minister's request

An official visitor must, at the Minister's request, report on any matter within the scope of the official visitor's functions.

81.   Annual report by coordinating official visitor

(1)  An official visitor appointed as coordinator must, on or before 31 August each year, provide a report to the Secretary on the visits and investigations made by the official visitors in the relevant region or to the relevant approved hospital in the course of the previous year ending on 30 June and the results of the visits and investigations.

(2)  The annual report must include any information required by the Secretary.

PART 12 - Intergovernmental agreements

Division 1 - [Division 1 of Part 12 Heading inserted by No. 35 of 2002, s. 10, Applied:14 Nov 2002] Humanitarian transfer

82.   Transfer agreements

(1)  [Section 82 Subsection (1) substituted by No. 35 of 2002, s. 11, Applied:14 Nov 2002] The Minister may enter into an agreement with the Minister responsible for the administration of a corresponding law providing for the transfer of involuntary patients.

(2)  The Minister must give notice in the Gazette of the making or amendment of an agreement under this section and of the terms of the agreement or amendment.

83.   Effect of transfer agreements

(1)  [Section 83 Subsection (1) amended by No. 35 of 2002, s. 12, Applied:14 Nov 2002] Where an agreement is in force under this Division–

(a) an involuntary patient may be transferred in accordance with the agreement from an approved hospital in Tasmania to a place for the detention, care and treatment of persons with mental illnesses in the State or Territory to which the agreement relates; and

(b) an involuntary patient may be transferred in accordance with the agreement to an approved hospital in Tasmania from a place for the detention, care and treatment of persons with mental illnesses in the State or Territory to which the agreement relates; and

(c) an order for the treatment of mental illness in the community made under the corresponding law has effect, subject to any adaptations and modifications for which the agreement provides, as if it were a community treatment order made under this Act.

(2)  The agreement may provide for incidental matters such as the transfer and registration of relevant orders and the transfer of clinical notes and other relevant materials.

(3)  On a transfer of an involuntary patient as mentioned in subsection (1) (b) , an order for his or her detention under the law of the relevant State or Territory has effect, subject to any adaptations and modifications for which the relevant agreement provides, as if it were a continuing care order made under this Act.

Division 2 - Apprehension and return of absconding involuntary patients

83A.   Interpretation of Division

[Section 83A of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002] In this Division –

affected jurisdiction, in relation to a corresponding law, means the State in which that law is in force;

continuing care order includes any continuing care order to which this Act applies by virtue of section 5A ;

corresponding law means a law of another State that is prescribed as a corresponding law for the purposes of this Division;

involuntary patient includes a person who is subject to a continuing care order within the meaning of this Division;

mental health facility means a hospital or other facility at which, under a corresponding law, persons with mental illnesses may be detained involuntarily and treated;

State includes Territory.

83B.   Agreements for the return, &c., of absconding involuntary patients

[Section 83B of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002]

(1)  The Minister may enter into an agreement with the Minister responsible for the administration of a corresponding law providing for either or both of the following:

(a) the apprehension, detention and return of involuntary patients who abscond or are absent without leave of absence from the approved hospital where they are being lawfully detained in this State and are found at large in the affected jurisdiction;

(b) the apprehension, detention and return of persons who abscond or are absent without leave of absence from the mental health facility at which they are being detained under the corresponding law and are found at large in this State.

(2)  The Minister must give notice in the Gazette of the making or amendment of an agreement under this section and of the terms of the agreement or amendment.

83C.   Tasmanian officers may act under corresponding laws

[Section 83C of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002]

(1)  An authorised officer may exercise a power or perform a function conferred on the authorised officer under a corresponding law.

(2)  Subsection (1) has effect subject to the provisions of any intergovernmental agreement under this Division about the exercise of the power or the performance of the function by the authorised officer.

83D.   Interstate officers may act in this State

[Section 83D of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002]

(1)  A person who is authorised to exercise a power or perform a function under a corresponding law may exercise the power or perform the function in this State.

(2)  Subsection (1) has effect subject to the provisions of any intergovernmental agreement under this Division about the exercise of the power or the performance of the function by the person referred to in that subsection.

83E.   Apprehension, &c., of involuntary patients from interstate

[Section 83E of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002]

(1)  If a person –

(a) absconds or is absent without leave of absence from the mental health facility at which the person is being detained under a corresponding law or contravenes a condition subject to which the person has been granted leave of absence from that facility; and

(b) is found at large in this State –

the person may be apprehended by –

(c) an authorised officer; or

(d) a person who, under the corresponding law, would be authorised to apprehend the person at large had that person been found at large in the affected jurisdiction.

(2)  For the purposes of subsection (1) , a warrant or other instrument that, under the corresponding law, would authorise the apprehension of the person at large if he or she were found at large in the affected jurisdiction also authorises that person's apprehension in this State.

(3)  A person who is apprehended under subsection (1)  –

(a) is to be taken to a mental health facility of the affected jurisdiction; but

(b) may be admitted to and detained in an approved hospital pending his or her return to that jurisdiction.

(4)  For the purpose of apprehending a person under subsection (1)  –

(a) an authorised officer may exercise any powers that he or she may exercise under section 15 in relation to persons being taken into protective custody; and

(b) a person referred to in subsection (1)(d) has the same powers as an authorised officer.

83F.   Apprehension, &c., of involuntary patients found interstate

[Section 83F of Part 12 Inserted by No. 35 of 2002, s. 13, Applied:14 Nov 2002] If an involuntary patient –

(a) absconds or is absent without leave of absence from the approved hospital where he or she is being detained or contravenes a condition subject to which he or she has been granted leave of absence from that approved hospital; and

(b) is found at large in another State –

he or she may be apprehended and returned to that approved hospital by –

(c) an authorised officer; or

(d) a person who, under the law of the affected jurisdiction, is authorised to take the involuntary patient to a mental health facility in that jurisdiction.

PART 13 - Miscellaneous

84.   Protection relating to reports and information

(1)  A person who makes a report or gives information to the Tribunal or a member of the Tribunal –

(a) for the purpose of a hearing under this Act or to assist in deciding whether an application for a review of a decision or order should be made under this Act; or

(b) when requested to do so by the Tribunal or a member of the Tribunal –

is not subject to any liability for making the report or giving the information so long as he or she acts in good faith and has reasonable and probable grounds for believing the report or information to be true.

(2)  A person who makes a report or gives information as mentioned in subsection (1) that is malicious or false in any material particular is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.

85.   Confidentiality of information

(1)  A person must not disclose any information obtained by the Tribunal under this Act that deals with the personal history or records of a person with a mental illness except –

(a) at a hearing under this Act; or

(b) where in the opinion of the Tribunal it is in the best interests of that person to disclose the information; or

(c) where the disclosure of the information is made by a person authorised in writing either generally or in a particular case by the President.

(2)  Subsection (1) does not prevent the disclosure of information as required or permitted by any law if, in the case of information relating to the personal affairs of another person, that other person has given consent in writing.

(3)  Nothing in this section prohibits the Tribunal from publishing notices of hearings or other notices that may be necessary in the interests of justice or for the proper administration of this Act.

(4)  A person who contravenes this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both.

86.   Protection from liability

A member of the Tribunal, the registrar and any other person acting under the direction of the Tribunal do not incur any personal liability in respect of any act done or omitted to be done in good faith in the performance or exercise, or purported performance or exercise, of any function or power of the Tribunal or in the administration or execution, or purported administration or execution, of this Act.

87.   Ill-treatment or neglect of person with mental illness

(1)  A person must not intentionally ill-treat a person knowing that the person –

(a) has a mental illness; and

(b) is, in consequence of the mental illness, unable to take proper care of himself or herself.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  A person in a position of responsibility must not intentionally neglect a person knowing that the person –

(a) has a mental illness; and

(b) is, in consequence of the mental illness, unable to take proper care of himself or herself.

Penalty:  Fine not exceeding 60 penalty units or imprisonment for a term not exceeding 2 years, or both.

88.   Removal, &c., of involuntary patient

A person must not, without lawful authority –

(a) remove an involuntary patient from an approved hospital; or

(b) help an involuntary patient to escape from, or evade, detention under this Act.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.

89.   Obstruction

A person must not obstruct –

(a) an authorised officer; or

(b) a member or officer of the Tribunal; or

(c) an official visitor; or

(d) another person –

in the exercise of powers or functions under this Act.

Penalty:  Fine not exceeding 20 penalty units or imprisonment for a term not exceeding one year, or both.

90.   Confidentiality

(1)  A person who obtains information of a personal or confidential nature about a person in the exercise of powers or functions under this Act must not disclose the information except as authorised or required under subsection (2) .

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  The information may be disclosed if –

(a) the disclosure is authorised by the person to whom it relates; or

(b) the disclosure is reasonably required for the care or treatment of the person to whom the information relates or for the administration of this Act; or

(c) the disclosure is authorised or required by a court, the Board or the Tribunal.

91.   Non-compliance with legal process

A person who –

(a) has been served with a summons to appear before the Tribunal and fails, without reasonable excuse, to attend as required by the summons; or

(b) has been served with a summons to produce books, papers or other documents and fails, without reasonable excuse, to comply with the summons; or

(c) misbehaves before the Tribunal, insults the Tribunal, a member of the Tribunal or a person assisting the Tribunal or interrupts the Tribunal's proceedings; or

(d) refuses to be sworn or to answer a relevant question when required to do so by the Tribunal –

is guilty of an offence and liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a term of one year, or both.

92.   Immunity from liability

An authorised officer or other person does not incur any personal liability in respect of any act done or omitted to be done in good faith in the performance or exercise, or purported performance or exercise, of any function or power conferred by this Act or in the administration or execution, or purported administration or execution, of this Act.

93.   Disqualification of certain medical practitioners

A medical practitioner may not be a signatory to an order in respect of a person under this Act if the medical practitioner –

(a) is a relative of the person; or

(b) has a financial interest, otherwise than in receipt of salary or professional fees, in the care or treatment of the person in an approved hospital or under the order.

94.   Errors affecting orders

(1)  The validity of an order under this Act is not affected by an error unless the error relates to the grounds on which the order was made and proper grounds for making the order did not exist.

(2)  An error in an order under this Act that does not affect its validity may be corrected by the person or persons by whom the order was made.

95.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.

(3)  The regulations may –

(a) provide that a contravention of any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 5 penalty units and, in the case of a continuing offence, a further fine not exceeding 0·5 penalty units for each day during which the offence continues.

(4)  The regulations may authorise any matter to be from time to time determined, applied or regulated by the Minister, the Secretary or another nominated person.

(5)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or the Guardianship and Administration Act 1995 .

(6)  A provision referred to in subsection (5) may take effect on and from a day proclaimed under section 2 or a later day.

97.   Savings and transitional provisions

The savings and transitional provisions specified in Schedule 2 have effect.

98.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –

(a) the administration of this Act is assigned to the Minister for Community and Health Services; and

(b) the Department responsible to the Minister in relation to the administration of this Act is the Department of Community and Health Services.

SCHEDULE 1 - Members and staff of the Tribunal

Section 48 (3)

1.   Appointment of members

(1) Each member of the Tribunal –

(a) is to be appointed by the Governor on the nomination of the Minister; and

(b) is entitled to be paid –

(i) remuneration from time to time fixed by the Minister; and

(ii) travelling and other allowances from time to time fixed by the Minister; and

(c) [Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] is not, in respect of the office of member, subject to the State Service Act 2000 .

(2) The President and the Deputy President each hold office for a term of 5 years and each other member holds office for a term not exceeding 5 years specified in the instrument of his or her appointment.

(3) Each member of the Tribunal holds office on terms and conditions specified in the instrument of his or her appointment.

(4) Each member of the Tribunal is eligible for reappointment on the expiration of his or her term of office.

2.   Qualifications of members

In nominating a person for appointment as a member of the Tribunal, the Minister must have regard to –

(a) the matters which the Tribunal has power to hear and determine; and

(b) the need for the members of the Tribunal to have appropriate knowledge and experience to decide such matters.

3.   Deputy President

(1) The Deputy President may exercise the President's functions if –

(a) the President –

(i) delegates those functions to the Deputy President under clause 4 ; or

(ii) is absent from Tasmania; or

(iii) is prevented by illness or other incapacity from exercising those functions; or

(b) there is no person holding the office of President.

(2) While the Deputy President is authorised to exercise the President's functions, a reference in this Act to the President is taken to be a reference to the Deputy President.

(3) While the Deputy President exercises the President's functions, the Deputy President is taken to be the President.

4.   Delegation by President

The President may delegate to the Deputy President the exercise of any of the President's functions, other than this power of delegation.

5.   General provisions about members

(1) The Governor may suspend or remove a member from office if the Governor is satisfied that the member is unable to perform adequately the duties of his or her office.

(2) A member may resign from the office of member by writing signed by the member and delivered to the Governor.

(3) A person who is of or over the age of 70 years is not eligible to be appointed or reappointed as a member.

(4) If a member –

(a) becomes bankrupt; or

(b) is convicted of an indictable offence or of an offence which, if committed in Tasmania, would be an indictable offence; or

(c) is removed from office or resigns from office; or

(d) is of or over the age of 70 years –

the office of that member becomes vacant.

(5) If the appointment of any member expires at a time when the member is engaged in the hearing of any matter by the Tribunal, the term of appointment of the member is taken to continue until the matter has been finally determined by the Tribunal.

6.   Term of office of acting members

Where –

(a) an eligible person, within the meaning of section 21A of the Acts Interpretation Act 1931 , has been appointed to act as a member; and

(b) the appointment to act as such expires, whether by effluxion of time or because the member for whom that person is acting has resumed the performance of the duties of his or her office, at a time when the acting member is engaged in the hearing of any matter by the Tribunal –

the period of appointment of that person is taken to continue until that matter has been finally determined by the Tribunal.

7.   Staff of the Tribunal

(1) There is to be a registrar of the Tribunal and such other officers as are necessary for the proper functioning of the Tribunal.

(2) [Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The registrar and other officers are to be appointed or employed subject to and in accordance with the State Service Act 2000 .

(3) The registrar and other officers are subject to the general control and direction of the President.

8.   Appointment of persons to assist the Tribunal

The Tribunal may appoint a legal practitioner, a medical practitioner or other person with appropriate expertise to assist the Tribunal in proceedings before it.

SCHEDULE 2 - Transitional and savings provisions

Section 97

1.   In this Schedule –

commencement date means the date of commencement of this Schedule;

institution means an institution within the meaning of the repealed Act;

repealed Act means the Mental Health Act 1963 .

2.   A reference in this Schedule to a person liable to be detained in an institution includes a reference to a person who is –

(a) absent from that institution and liable to be retaken and returned to that institution; or

(b) absent from that institution on leave.

3.   A reference in this Schedule to a person absent on leave includes a reference to a person authorised or required under the repealed Act to be away from an institution, and, in the case of an involuntary patient who, before the commencement date, was away from the institution in which he or she was liable to be detained, the expression absent without leave is to be read accordingly.

4.   A person whose appointment as an authorised officer was in force under section 11 of the repealed Act immediately before the commencement date is taken to have been appointed as such under section 13 of this Act for a period of 6 months after that date.

5.   Where, immediately before the commencement date, an institution was declared under section 6 of the repealed Act to be a hospital for the purposes of that Act, the institution is taken to be an approved hospital under section 9 of this Act.

6.   Where, immediately before the commencement date, a person was subject to an admission application under section 14 of the repealed Act or an emergency application under section 19 (1) of that Act , the application is taken to be an initial order made under section 26 (1) of this Act on that date.

7.   Where, immediately before the commencement date, a person was in legal custody by virtue of a warrant issued under the repealed Act , that person may continue to be detained as if an initial order had been made in respect of him or her on the commencement date.

8.   Where, immediately before the commencement date, a person was liable to be apprehended under a warrant in force under the repealed Act , the warrant continues to have effect for a period of a week after the commencement date.

9.   

(1) Where, immediately before the commencement date, a person was, or was liable to be, detained in an institution, that person may continue to be detained in an approved hospital as if a continuing care order had been made in respect of him or her on the commencement date.

(2) The period for which a person may be detained under subclause (1) is the period for which he or she may have been detained under the repealed Act as if it had continued in operation.

10.   The senior approved medical practitioner of an approved hospital must, within 28 days after the commencement date, provide the registrar with full particulars in writing of any order under which a person is at that time detained under the repealed Act as an involuntary patient in the approved hospital.

[Second reading presentation speech made in:

House of Assembly on 2 OCTOBER 1996

Legislative Council on 5 SEPTEMBER 1996]