Mental Health Amendment Act 2015

Mental Health Amendment Act 2015

No. 15 of 2015

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Principal Act

Part 2—General amendments to the Mental Health Act 2014

4Definitions

5What is treatment?

6Restriction on right to communicate

7Persons to be notified of restriction on inpatient's right to communicate

8Duration of an Assessment Order

9Authorised psychiatrist may make Temporary Treatment Order

10Expiry of Temporary Treatment Order or Treatment Order if certain other Orders made

11Application for review of direction to vary Order

12Matters authorised psychiatrist must have regard to if consenting to medical treatment of patient

13Application to perform electroconvulsive treatment on a young person

14Facilities and supplies to be provided to person

15Monitoring of person in seclusion

16Monitoring of person on whom a bodily restraint is used

17Functions of the Secretary

18Confidentiality obligations applying in respect of information from clinical practice audit or clinical review

19Authorised psychiatrist may delegate powers and functions

20Notice of hearing

21Powers of community visitors

22Reasonable assistance to be given to community visitors

23Discharge of person subject to a Court Secure Treatment Order

24What is a Secure Treatment Order?

25Making a Secure Treatment Order

26Discharge of person subject to a Secure Treatment Order

27Notification and directions following discharge of security patient subject to Court Secure Treatment Order or Secure Treatment Order

28Definition

29Section 306 repealed

30Statement of priorities

31Power to enter premises, apprehend and take person to or from a designated mental health service

32Regulations

33New Part 16A inserted

Part 3—General amendment to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

34Report to be prepared and filed

Part 4—Amendments in relation to administrative arrangement changes

Division 1—Mental Health Act 2014

35Department of Health and Human Services

36Department of Justice and Regulation

Division 2—Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

37Department of Health and Human Services

38Department of Justice and Regulation

Part 5—Repeal of amending Act

39Repeal of amending Act

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Endnotes

1General information

SectionPage

Victoria

SectionPage

Mental Health Amendment Act 2015[†]

No. 15 of 2015

[Assented to 12 May 2015]

Mental Health Amendment Act 2015
No. 15 of 2015

The Parliament of Victoriaenacts:

Part 5—Repeal of amending Act

Mental Health Amendment Act 2015
No. 15 of 2015

Part 1—Preliminary

1Purpose

The purpose of this Act is to make miscellaneous amendments to the Mental Health Act 2014 and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

2Commencement

(1)Part 1 and sections 25(2), 28 and 29come into operation on the day after the day on which this Act receives the Royal Assent.

(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day to be proclaimed.

(3)If a provision of this Act referred to in subsection (2) does not come into operation before 1 June 2016, it comes into operation on that day.

3Principal Act

In this Act, the Mental Health Act 2014 is called the Principal Act.

Part 2—General amendments to the Mental Health Act 2014

4Definitions

In section 3(1) of the Principal Act—

(a)in the definition of psychiatrist, after "Practitioner" insert "Regulation";

(b)in the definition of Secretary, after "Health" insert "and Human Services";

(c)the definition of Secretary to the Department of Human Services is repealed;

(d)for the definition of Secretary to the Department of Justice substitute—

"Secretary to the Department of Justice and Regulation means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Justice and Regulation;".

5What is treatment?

In section 6(a) of the Principal Act—

(a)omit "to the person";

(b)in subparagraphs (i) and (ii), for "mental" substitute "person's mental".

6Restriction on right to communicate

(1)In section 16(2)(e) of the Principal Act, for "visitor." substitute "visitor; or".

(2)After section 16(2)(e) of the Principal Act insert—

"(f)a prescribed person or body.".

7Persons to be notified of restriction on inpatient's right to communicate

In section 17(c) of the Principal Act, after "carer" insert ", if the authorised psychiatrist is satisfied that the restriction will directly affect the carer and the care relationship".

8Duration of an Assessment Order

(1)In section 34(1)(a) of the Principal Act, before "inthe case" insert "subject to subsection (1A),".

(2)After section 34(1) of the Principal Act insert—

"(1A)A Community Assessment Order (which is varied from an Inpatient Assessment Order to a Community Assessment Order under section 35)remains in force (unless the Community Assessment Order is extended in accordance with this section or revoked in accordance with section 37) for a period of 24 hours starting—

(a)if the person subject to the Order was not received at a designated mental health service before the variation was made under section 35, at the time that the Inpatient Assessment Order was varied to the Community Assessment Order; or

(b)if the person subject to the Order was received at a designated mental health service before the variation was made under section 35, at the time that the person was received at the designated mental health service.".

9Authorised psychiatrist may make Temporary Treatment Order

Before section 46(1)(a) of the Principal Actinsert—

"(aa)before examining the person, to the extent that is reasonable in the circumstances—

(i)has informed the person that the person will be examined by the authorised psychiatrist; and

(ii)has explained the purpose of this examination to the person; and".

10Expiry of Temporary Treatment Order or Treatment Order if certain other Orders made

For section 62(a) of the Principal Act substitute—

"(a)in the case of a Temporary Treatment Order—

(i)28 days after it is made; or

(ii)the person is made subject to a Treatment Order;".

11Application for review of direction to vary Order

In section 66(4)(a) of the Principal Act, for "at" substitute "by".

12Matters authorised psychiatrist must have regard to if consenting to medical treatment of patient

(1)In the heading to section 76 of the Principal Act, for "take into account" substitute "have regard to".

(2)In section 76(2)(a) of the Principal Act, after "alternative" insert "medical".

13Application to perform electroconvulsive treatment on a young person

(1)In section 94(1)(a) and (2)(a) of the Principal Act, after "has" insert "personally".

(2) After section 94(3) of the Principal Act insert—

"(4)An authorised psychiatrist may make a further application under subsection (1) during or after the performance of a course of electroconvulsive treatment on a young personwho is a patient.

(5) A psychiatrist may make a further application under subsection (2) during or after the performance of a course of electroconvulsive treatment on a young person who is not a patient.".

14Facilities and supplies to be provided to person

In section 106 of the Principal Act, after "authorises" insert "or approves".

15Monitoring of person in seclusion

In section 112(2) of the Principal Act, for "observe" substitute "review".

16Monitoring of person on whom a bodily restraint is used

In section 116(3) of the Principal Act, for "the use of a bodily restraint on a person" substitute "aperson on whom a bodily restraint is used".

17Functions of the Secretary

(1)In section 118 of the Principal Act—

(a)in paragraph (j), for "regulations." substitute "regulations;";

(b)after paragraph (j) insert—

"(k)to prepare and submit to the Minister an annual report in accordance with subsection (2).".

(2)At the end of section 118 of the Principal Act insert—

"(2)As soon as practicable after the end of each financial year but no later than the following 31 October, the Secretary must submit to the Minister an annual report containing—

(a)a review of the services provided by mental health service providers during the financial year; and

(b)any other information requested in writing by the Minister.

(3)The Minister must cause the annual report of the Secretary to be laid before the Legislative Council and the Legislative Assembly before the expiration of the fourteenth sitting day of the Legislative Council or the Legislative Assembly, as the case may be, after the annual report has been received by the Minister.".

18Confidentiality obligations applying in respect of information from clinical practice audit or clinical review

(1)In section 140(3) of the Principal Act, for "seriousor" substitute "serious and".

(2)In section 140(8) of the Principal Act, after "obtained" insert "or the identification of a mental health service provider from which or in relation to which the information was obtained".

19Authorised psychiatrist may delegate powers and functions

In section 151(1) of the Principal Act—

(a)in paragraph (b), after "Board" insert "ofAustralia";

(b)in paragraph (c)—

(i)for "practice" substitute "practise";

(ii)for "section 68" substitute "section67".

20Notice of hearing

In section 189(1)(g) of the Principal Actomit ",ifthe Tribunal is satisfied that the hearing will directly affect the carer and the care relationship".

21Powers of community visitors

In section 217(1)(d) of the Principal Act, after "services," insert "inspect".

22Reasonable assistance to be given to community visitors

In section 220 of the Principal Act, for "must," substitute "must".

23Discharge of person subject to a Court Secure Treatment Order

In section 274(2) of the Principal Act, after "subsection (1)" insert "(a) or (b)".

24What is a Secure Treatment Order?

In section 275 of the Principal Act, for "at" substitute "in".

25Making a Secure Treatment Order

(1) In section 276(1)(b)(iii) of the Principal Act, before "immediate" insert "the".

(2)For section 276(2) of the Principal Act substitute—

"(2)Subsection (1) does not apply to a person who is subject to a Court Secure Treatment Order and is detained in a prison or other place of confinement.".

(3) Section 276(3) of the Principal Act is repealed.

26Discharge of person subject to a Secure Treatment Order

In section 280(2) of the Principal Act, after "subsection (1)" insert "(a) or (b)".

27Notification and directions following discharge of security patient subject to Court Secure Treatment Order or Secure Treatment Order

In section 297(1) of the Principal Act, for "notify the Secretary to the Department of Justice that he or she" substitute "ensure that the Secretary to the Department of Justice and Regulation is notified that the authorised psychiatrist".

28Definition

(1)In section 305(1)of the Principal Act, in paragraph (f) of the definition of forensic patient, for "1997; or" substitute "1997.".

(2)In section 305(1) of the Principal Act, paragraph(g) of the definition of forensic patientis repealed.

29Section 306 repealed

Section 306 of the Principal Act is repealed.

30Statement of priorities

After section 344(6) of the Principal Act insert—

"(7)The Minister may publish the statement of priorities on the Department of Health and Human Services' Internet website.".

31Power to enter premises, apprehend and take person to or from a designated mental health service

(1)In the heading to section 353 of the Principal Act, after "to" insert "or from".

(2)In section 353(2)(b) of the Principal Act, after "to" insert "or from".

32Regulations

In section 370(1)(f) of the Principal Act omit "expressed as a percentage of the remuneration of different classes of member of VCAT fixed under the Victorian Civil and Administrative Tribunal Act 1998 from time to time".

33New Part 16A inserted

After Part 16 of the Principal Act insert—

"Part 16A—General savings and transitionals

428A Transitional—Mental Health Amendment Act 2015

(1)In this section—

commencement day means the day on which section 29of the Mental Health Amendment Act 2015comes into operation.

(2)On and from the commencement day, a person, who before the commencement day is taken from a prison to a designated mental health service in accordance with a direction made under section 306 and is still detained at the designated mental health service, is taken—

(a)to be subject to a Secure Treatment Order; and

(b)to have been received at the designated mental health service on the commencement day.".

Part 3—General amendment to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

34Report to be prepared and filed

For section 38ZS of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute—

"38ZS Report to be prepared and filed

The Secretary to the Department of Health and Human Services must—

(a)arrange to have prepared a report referred to in section 38ZR; and

(b)file the report with the court that declared that the child is liable to supervision under Division 5.".

Part 4—Amendments in relation to administrative arrangement changes

Division 1—Mental Health Act 2014

35Department of Health and Human Services

(1)In sections 17(e), 32(2)(a)(v), 35(4)(a)(v), 37(3)(c)(v), 40(1)(e), 41(3)(d)(v), 46(2)(a)(vii), 48(2)(g), 50(2)(b)(i)(E), 55(2)(g), 59(d)(v), 60(2)(d), 63(b)(v), 64(3)(g) and (5)(b)(v), 65(4)(g) and (5)(d)(v), 66(2)(d), 71(4)(g), 79(2)(d), 82(d)(ii)(E), 84(2)(h), 88(3)(g) and (6)(h), 94(3)(g), 107(e), 189(1)(h)(ii), 189(1)(i), 271(e), 277(e), 278(2)(d), 281(4)(g), 283(2)(b)(v), 285(1)(f), 287(a)(vii), 290(2)(b)(v), 291(2)(g), 293(1)(b)(v), 294(2)(d), 297(3)(b)(v), 307(3)(g), 309(1)(b)(v), 310(2)(d), 321(3)(g), 323(3)(g), 346(2)(k), 349(1)(b) and 352(3)(e)of the Principal Actomit "to the Department of Human Services".

(2)In section 96(4)(g) of the Principal Act, for "of the Department of" substitute "to the Department of Health and".

(3) In section 145(2) of the Principal Act, for "Health's" substitute "Health and Human Services'".

(4) In sections 214(4)(a) and (b) and 341(3)of the Principal Act, after "Health" insert "and Human Services".

36Department of Justice and Regulation

(1)In sections 189(1)(h)(i), 270(1), 274(2)(a), 275, 280(2)(a), 283(1) and (2)(b)(vi), 285(1), (3) and(4), 286(1) and (2), 288(3)(d), 289, 290(1), 291(2)(h), 293(3), 295(2), 298(b), 299(3)(d), 349(1)(a) and 386 of the Principal Act, after "Justice" insert "and Regulation".

(2) In section 269(a) of the Principal Act—

(a)after "Justice" insert "and Regulation";

(b)in subparagraph (i), after "Department of"insert "Health and".

(3) In sections 270(2) and 276(1) of the Principal Act, after "Justice" (where thrice occurring) insert "and Regulation".

(4) In sections 287 and 288(1) of the Principal Act, after "Justice" (where twice occurring) insert "andRegulation".

(5)In section 289 of the Principal Act, after "theSecretary" insert "to the Department of Justice and Regulation".

(6)In section 290(2)(a) of the Principal Act, for "Secretary's decision" substitute "decision of the Secretary to the Department of Justice and Regulation".

(7)In section 297(3) of the Principal Act, where secondly occurring, for "(3)" substitute"(4)".

(8) In section 297(4) of the Principal Act, after "Justice" (where twice occurring) insert "andRegulation".

Division 2—Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

37Department of Health and Human Services

(1)In section 3(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for the definition of Secretary to the Department of Healthsubstitute—

"Secretary to the Department of Health and Human Services means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health and Human Services;".

(2) In section 3(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the definition of Secretary to the Department of Human Servicesis repealed.

(3) In section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a)in subsection (3)(b), for "provider, the Secretary to the Department of Human Services or the Secretary to the Department of Health" substitute "provider or the Secretary to the Department of Health and Human Services";

(b) in subsection (8), after "Health" insert "andHuman Services";

(4) In section 28A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a)in subsection (2), for "Attorney-General, the Secretary to the Department of Human Services or the Secretary to the Department of Health" substitute "Attorney-General or the Secretary to the Department of Health and Human Services";

(b)in subsection (2C),for "Human Services, the Secretary to the Department of Health" substitute "Health and Human Services".

(5) In sections 29(1) and 30A(1)of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "Human Services or the Secretary to the Department of Health" (where twice occurring) substitute "Health and Human Services".

(6) In section 30B of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a)in subsections (1) and (1A), after "Health" (where twice occurring) insert "and Human Services";

(b) in subsection (1B), after "Department of" (where twice occurring) insert "Health and".

(7) In section 34 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a)in subsection (2), for "Human Services or the Secretary to the Department of Health" substitute "Health and Human Services";

(b) in subsection (3C), for "Human Services, the Secretary to the Department of Health" substitute "Health and Human Services".

(8) In section 34A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a)in subsection (1), for "Human Services or the Secretary to the Department of Health" substitute "Health and Human Services";

(b) in subsection(2B), for "Human Services, the Secretary to the Department of Health" substitute "Health and Human Services".

(9) In the heading to section 38B of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997,for",Secretary to Department of Health and Secretary to Department of"substitute "and Secretary to Department of Health and".

(10) In section 38B(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "Human Services or the Secretary to the Department of Health (as the case requires)" substitute "Health and Human Services".

(11) In section 38C(8) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for ", the Secretary to the Department of Health or the Secretary to the Department of" substitute "or the Secretary to the Department of Health and".

(12) In section 38ZJ of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a)in subsection (2), for ", the Secretary to the Department of Human Services or the Secretary to the Department of Health" substitute "or the Secretary to the Department of Health and Human Services";

(b) in subsection (5),for "Human Services, the Secretary to the Department of Health" substitute "Health and Human Services".

(13) In sections 38ZK(1) and 38ZM(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "Human Services or the Secretary to the Department of Health" (where twice occurring) substitute "Health and Human Services".

(14) In section 38ZT(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "Department of" insert "Health and".

(15) In section 41(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for paragraphs (b) and (c) ofthe definition of appropriate personsubstitute—

"(b)the Secretary to the Department of Health and Human Services if the person is—

(i)in custody in a residential treatment facility, a residential institution or a designated mental health service; or

(ii)receiving treatment or services under a supervision order from—

(A)a residential treatment facility; or

(B)a residential institution; or

(C)a disability service provider; or

(D)a designated mental health service; or

(E)the Secretary to the Department of Health and Human Services.".

(16) In section 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a)in subsection (1), after "Department of" (wherever occurring) insert "Health and";

(b) in subsection (1)(a)—

(i) in subparagraph (i), after "custody in" insert "a designated mental health service,";

(ii) in subparagraph (ii)—

(A)after "services in" insert "adesignated mental health service,";

(B)after "provider" insert ", a mental health service provider within the meaning of the Mental Health Act 2014";

(c) insubsection (1)(ab)(ii), after "provider" insert ", a mental health service provider within the meaning of the Mental Health Act 2014";

(d) in subsection (1)(b)(i), after "custody in" insert "a designated mental health service,";

(e)in subsection(1)(b)(ii)—

(i)after "services in" insert "a designated mental health service,";

(ii)after "provider" insert ", a mental health service provider within the meaning of the Mental Health Act 2014".

(17) Section 47(1A) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997isrepealed.

(18) In section 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a)in subsection (3), for "either the Secretary to the Department of Human Services or the Secretary to the Department of Health" substitute "the Secretary to the Department of Health and Human Services";

(b)in subsections (4) and(5), for "Human Services or the Secretary to the Department of Health" substitute "Health and Human Services".

(19) In sections 50(2)(b), (3), (4), (5)(a) and (6)(b), 54(1)(b) and (5), 54A(1)(c), 54B(1)(c), 55(1), 57(1)(b) and 57A(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "Department of" insert "Health and".

(20)In section 57B(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—

(a)after "Department of" insert "Health and";

(b)for "if he or she" substitute "or a forensic patient if the Secretary".

(21) Section 57B(2A) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 is repealed.

(22) In section 57B(3C) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "Human Services, the Secretary to the Department of Health" substitute "Health and Human Services".

(23) In section 58(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "Department of" insert "Health and".

(24) In section 58A(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—