Division 2Admission to and initial detention in mental health
facilities
18When a person may be detained in mental health
facility
(1)
A person may be detained in a declared mental
health facility in the following circumstances—
(a)
on a mental health certificate given by a medical
practitioner or accredited person (see section 19),
(b)
after being brought to the facility by an
ambulance officer (see section 20),
(c)
after being apprehended by a police officer (see
section 22),
(d)
after an order for an examination and an
examination or observation by a medical practitioner or accredited person (see
section 23),
(e)
on the order of a Magistrate or bail officer (see
section 24),
(f)
after a transfer from another health facility
(see section 25),
(g)
on a written request made to the authorised
medical officer by a designated carer, the principal care provider, a relative
or friend of the person (see section 26).
(2)
A person may be detained, under a provision of
this Part, in a health facility that is not a declared mental health facility
if it is necessary to do so to provide medical treatment or care to the person
for a condition or illness other than a mental illness or other mental
condition.
(3)
In this Act, a reference to taking to and
detaining in a mental health facility includes, in relation to a person who is
at a mental health facility, but not detained in the mental health facility in
accordance with this Act, the detaining of the person in the mental health
facility.
Note 1—
A person taken to and detained in a mental health
facility must be provided with certain information, including a statement of
the person’s rights (see section 74).
Note 2—
A person authorised to be taken to and detained
in a mental health facility under this Division may be taken to the facility
by a person listed in section 81.
s 18: Am 2014 No 85,
Sch 1 [11]; 2022 No 41, Sch 6[1] [2].
19Detention on certificate of medical practitioner or
accredited person
(cf 1990 Act, s 21)
(1)
A person may be taken to and detained in a
declared mental health facility on the basis of a certificate about the
person’s condition issued by a medical practitioner or accredited
person. The certificate is to be in the form set out in Part 1 of Schedule
1.
(2)
A mental health certificate may be given about a
person only if the medical practitioner or accredited person—
(a)
has personally examined or observed the
person’s condition immediately before or shortly before completing the
certificate, and
(b)
is of the opinion that the person is a mentally
ill person or a mentally disordered person, and
(c)
is satisfied that no other appropriate means for
dealing with the person is reasonably available, and that involuntary
admission and detention are necessary, and
(d)
is not a designated carer, the principal care
provider or a near relative of the person.
(3)
A mental health certificate may contain a police
assistance endorsement that police assistance is required if the person giving
the certificate is of the opinion that there are serious concerns relating to
the safety of the person or other persons if the person is taken to a mental
health facility without the assistance of a police officer. The endorsement is
to be in the form set out in Part 2 of Schedule 1.
(4)
A mental health certificate may not be used to
admit or detain a person in a facility—
(a)
in the case of a person certified to be a
mentally ill person, more than 5 days after it is given,
or
(b)
in the case of a person certified to be a
mentally disordered person, more than one day after it is
given.
(5)
In this section—
near relative of a person
means a parent, brother, sister, child or spouse of the person and any other
person prescribed for the purposes of this
definition.
s 19: Am 2014 No 85,
Sch 1 [12].
19AExamination by audio visual link for purposes of mental
health certificate
(1)
A medical practitioner or accredited person may
examine or observe a person’s condition using an audio visual link for
the purpose of determining whether to issue a mental health certificate if it
is not reasonably practicable for a medical practitioner or accredited person
to personally examine or observe the person for that
purpose.
(2)
A medical practitioner or accredited person must
not carry out an examination or observation using an audio visual link unless
the medical practitioner or accredited person is satisfied that the
examination or observation can be carried out in those circumstances with
sufficient skill and care so as to form the required opinion about the
person.
(3)
The regulations may make provision for or with
respect to the audio visual link technology that may be used for the purposes
of this section and the medical practitioners who may examine or observe a
person for the purposes of this section.
s 19A: Ins 2014 No
85, Sch 1 [13].
20Detention on information of ambulance
officer
(1)
An ambulance officer who provides ambulance
services in relation to a person may take the person to a declared mental
health facility if the officer believes on reasonable grounds that the person
appears to be mentally ill or mentally disturbed and that it would be
beneficial to the person’s welfare to be dealt with in accordance with
this Act.
(2)
An ambulance officer may request police
assistance if of the opinion that there are serious concerns relating to the
safety of the person or other persons if the person is taken to a mental
health facility without the assistance of a police
officer.
21Police assistance
(1)
A police officer to whose notice a police
assistance endorsement on a mental health certificate, or a request for
assistance by an ambulance officer under this Division, is brought must, if
practicable—
(a)
apprehend and take or assist in taking the person
the subject of the certificate or request to a declared mental health
facility, or
(b)
cause or make arrangements for some other police
officer to do so.
(2)
A police officer may enter premises to apprehend
a person under this section, and may apprehend any such person, without a
warrant and may exercise any powers conferred by section 81 on a person who is
authorised under that section to take a person to a mental health facility or
another health facility.
Note—
Section 81 sets out the persons who may take a
person to a mental health facility and their powers when doing
so.
22Detention after apprehension by police
(cf 1990 Act, s 24)
(1)
A police officer who, in any place, finds a
person who appears to be mentally ill or mentally disturbed may apprehend the
person and take the person to a declared mental health facility if the officer
believes on reasonable grounds that—
(a)
the person is committing or has recently
committed an offence or that the person has recently attempted to kill himself
or herself or that it is probable that the person will attempt to kill himself
or herself or any other person or attempt to cause serious physical harm to
himself or herself or any other person, and
(b)
it would be beneficial to the person’s
welfare to be dealt with in accordance with this Act, rather than otherwise in
accordance with law.
(2)
A police officer may apprehend a person under
this section without a warrant and may exercise any powers conferred by
section 81 on a person who is authorised under that section to take a person
to a mental health facility or another health facility.
23Detention after order for medical examination or
observation
(cf 1990 Act, s 27)
(1)
A Magistrate or authorised officer may, by order,
authorise a medical practitioner or accredited person to visit and to
personally examine or personally observe a person to ascertain whether a
mental health certificate should be issued for the
person.
(2)
An order may be made if the Magistrate or officer
is satisfied, by evidence on oath, that—
(a)
the person may be a mentally ill person or a
mentally disordered person, and
(b)
because of physical inaccessibility, the person
could not otherwise be personally examined or personally
observed.
(3)
The order may also authorise any other person
(including a police officer) who may be required to assist the medical
practitioner or accredited person to accompany the medical practitioner or
accredited person.
(4)
A person authorised to visit a person or
accompany another person may enter premises, if need be by force, in order to
enable the examination or observation to be carried out.
(5)
A person who is examined or observed under this
section may be detained in accordance with section 19.
(6)
A person who takes action under an order must, as
soon as practicable after taking the action, notify the person who made the
order in writing of the action.
(7)
In this section—
authorised officer
means an authorised officer within the meaning of the Criminal Procedure Act
1986.
24Detention on order of Magistrate or bail
officer
(cf 1990 Act, s 25)
A person may be taken to and detained in a
declared mental health facility in accordance with an order made under
Division 3 of Part 2 of the Mental Health and Cognitive
Impairment Forensic Provisions Act 2020.
s 24: Am 2008 No 79,
Sch 2 [4]; 2020 No 12, Sch 3.17[4].
25Detention after transfer from another health
facility
(1)
A person may be transferred from a health
facility to a declared mental health facility and detained in the mental
health facility if a medical officer of the health facility, or the authorised
medical officer of the mental health facility, considers the person to be a
mentally ill person or a mentally disordered person.
(2)
Any such person is taken to have been detained in
the declared mental health facility under section 19 when the person is
transferred to the facility.
26Detention on request of designated carer, principal care
provider, relative or friend
(cf 1990 Act, s 23)
(1)
A person may be detained in a declared mental
health facility on a written request made to the authorised medical officer by
a designated carer, the principal care provider or a relative or friend of the
person.
(2)
An authorised medical officer must not detain any
such person unless the officer is satisfied that, because of the distance
required in order for the person to be examined and the urgency of the
circumstances, it is not reasonably practicable to have the person detained on
the basis of a mental health certificate.
s 26: Am 2014 No 85,
Sch 1 [14].
27Steps for medical examination requirements for ongoing
detention in mental health facility
(1)
The following steps must be taken in relation to
a person who is detained in a mental health facility under this
Division—
(a)Step 1 Initial examination by authorised
medical officer
An authorised medical officer must examine the
person as soon as practicable (but not later than 12 hours) after the person
arrives at the facility or after the person is detained after being a
voluntary patient.
The person must not be detained after the
examination unless the officer certifies that, in the officer’s opinion,
the person is a mentally ill person or a mentally disordered
person.
(b)Step 2 Examination by second medical
practitioner
The authorised medical officer must cause the
person to be examined by another medical practitioner as soon as possible
after giving the certificate in step 1. The second examiner must be a
psychiatrist if the authorised medical officer is not a
psychiatrist.
The second examiner must notify the authorised
medical officer if of the opinion that the person is a mentally ill person or
a mentally disordered person or if not able to form such an
opinion.
(c)Step 3 Examination by third medical
practitioner if second examiner does not find person to be mentally ill or
mentally disordered
If the second examiner is not of the opinion that
the person is a mentally ill person or a mentally disordered person, the
authorised medical officer must cause the person to be examined by a medical
practitioner who is a psychiatrist, as soon as practicable after being
notified of that opinion.
The third examiner must notify the authorised
medical officer if of the opinion that the person is a mentally ill person or
a mentally disordered person.
(d)Step 4 Mental health inquiry or
discharge
An authorised medical officer must notify the
Tribunal and bring the person before the Tribunal for a mental health inquiry
if—
(i)
the person is found to be a mentally ill person
by an authorised medical officer on initial examination in step 1, and to be a
mentally ill person or a mentally disordered person on examination in step 2
or step 3, or
(ii)
the person is found to be a mentally disordered
person by an authorised medical officer on initial examination in step 1, and
to be a mentally ill person on examination in step 2 or step
3.
The person must be brought before the Tribunal as
soon as practicable after admission (subject to meeting the requirements set
out above).
If the third examiner does not find that the
person is a mentally ill person or a mentally disordered person, the person
must not be detained after the third examination.
(e)Step 5 Mentally disordered
persons
If a person is found to be a mentally disordered
person by an authorised medical officer on initial examination in step 1, and
is found to be a mentally disordered person on examination in step 2 or step
3, the person may be detained in the mental health facility as a mentally
disordered person.
(2)
Any certification under subsection (1) (a) or
notification under subsection (1) (b) or (c) of the opinion that a person is,
after an examination under this section or section 27A, a mentally ill person
or a mentally disordered person, is to be in the form prescribed by the
regulations.
(3)
Any form used for the purposes of this section or
section 27A (as in force immediately before the commencement of this
subsection) is, until such time as a form is prescribed for the purposes of
subsection (2), taken to be the form so prescribed.
s 27: Am 2008 No 107,
Sch 16 [3] [4]; 2016 No 27, Sch 1.15 [1] [2].
27AExaminations by medical practitioners or accredited persons
for purposes of detention
(1)
If it is not reasonably practicable for an
authorised medical officer of a mental health facility or other medical
practitioner to personally examine a person or observe the person’s
condition for the purpose of determining under section 27 whether the person
is a mentally ill person or a mentally disordered person, the person may be
examined or observed for that purpose—
(a)
by a medical practitioner using an audio visual
link, or
(b)
by an accredited person authorised by the medical
superintendent of the mental health facility to examine or observe the person
or observe for that purpose—
(i)
in person, or
(ii)
using an audio visual
link.
(2)
The examination or observation must be carried
out by a medical practitioner who is a psychiatrist if that is a requirement
of section 27.
(3)
A medical practitioner or accredited person must
not carry out an examination or observation using an audio visual link under
this section unless the medical practitioner or accredited person is satisfied
that the examination or observation can be carried out in the circumstances
with sufficient skill and care so as to form the required opinion about the
person.
(4)
A medical practitioner who is not a psychiatrist,
or an accredited person, who examines or observes a person under this section
must, if it is reasonably practicable to do so, seek the advice of a
psychiatrist before making a determination as to whether the person is a
mentally ill person or a mentally disordered person. The psychiatrist is not
required to examine or observe the person.
(5)
The regulations may make provision for or with
respect to the audio visual link technology that may be used for the purposes
of this section and the medical practitioners who may examine or observe a
person for the purposes of this section.
s 27A: Ins 2014 No
85, Sch 1 [15]. Am 2022 No 5, Sch 1.12[1] [2].
28Obligations of examining medical practitioners and
accredited persons
(1)
An authorised medical officer or other medical
practitioner or accredited person who examines a person detained in a mental
health facility under this Division may take into account his or her own
observations and any other available evidence that he or she considers
reliable and relevant in forming an opinion as to whether the person is a
mentally ill person or a mentally disordered person.
(2)
A medical practitioner or accredited person on
whose certificate or request a person has been admitted to a mental health
facility must not examine the person under section 27 or
27A.
s 28: Am 2014 No 85,
Sch 1 [16] [17].
28ATribunal to be informed if detained person is a forensic
patient
If an authorised medical officer of a mental
health facility becomes aware that a person detained in the mental health
facility under this Division is a forensic patient, the officer is, as soon as
is reasonably practicable, to notify the Tribunal.
s 28A: Ins 2013 No
24, Sch 5 [2].
29Treatment of persons detained in mental health
facilities
(cf 1990 Act, s 31)
A person who authorises the administration of any
medication to a person detained in a mental health facility under this
Division—
(a)
must have due regard to the possible effects of
the administration of the medication, and
(b)
must prescribe the minimum medication, consistent
with proper care, to ensure that the person is not prevented from
communicating adequately with any other person who may be engaged to represent
the person at a mental health inquiry.
30Assessable persons may be reclassified as voluntary
patients
(cf 1990 Act, s 54)
An authorised medical officer may classify an
assessable person as a voluntary patient at any time before a mental health
inquiry is held about the person, but only if—
(a)
the authorised medical officer is of the opinion
that the person is likely to benefit from care or treatment as a voluntary
patient, and
(b)
the patient agrees to be so classified or, if the
person is a person under guardianship or is under the age of 14 years, the
person is admitted in accordance with the procedures under this Act applicable
to admitting any such person as a voluntary
patient.
31Limited detention of mentally disordered
persons
(cf 1990 Act, s 35)
(1)
A person detained as a mentally disordered person
under step 5 in section 27 (e) must not be detained in a mental health
facility for a continuous period of more than 3 days (not including weekends
and public holidays).
(2)
If an authorised medical officer of a mental
health facility is of the opinion that an assessable person has ceased to be a
mentally ill person but is a mentally disordered person, the person must not
be further detained in the facility for a continuous period of more than 3
days (not including weekends and public holidays).
(3)
An authorised medical officer must examine a
mentally disordered person detained in a mental health facility at least once
every 24 hours.
(4)
The person must not be further detained in the
mental health facility if, on any such examination, the authorised medical
officer is of the opinion that the person is not a mentally disordered person
or a mentally ill person or that other care of a less restrictive kind, that
is consistent with safe and effective care, is appropriate and reasonably
available to the person.
(5)
A person must not be admitted to and detained in
a mental health facility on the grounds that the person is a mentally
disordered person on more than 3 occasions in any 1 calendar
month.
s 31: Am 2008 No 79,
Sch 2 [5].
32Detention on order of Magistrate or bail
officer
(cf 1990 Act, ss 36, 37, 37A)
(1)
This section applies to a person detained in a
mental health facility under this Part who is required not to be detained or
further detained in the facility and who was taken to the
facility—
(a)
by a police officer under this Division after
being apprehended by a police officer because the officer believed the person
to be committing or to have recently committed an offence,
or
(b)
on the order of a Magistrate or an authorised
officer under Division 3 of Part 2 of the Mental Health
and Cognitive Impairment Forensic Provisions Act
2020.
(2)
An authorised medical officer must release the
person into the custody of any relevant person who is present at the mental
health facility to ascertain the results of any examination or examinations of
the person.
(3)
If a relevant person is not so present when the
authorised medical officer becomes aware that the person must not be detained
or further detained, the authorised medical officer must, as soon as
practicable, notify a police officer at the appropriate police station that
the person will not be further detained.
(4)
The authorised medical officer may take any of
the following actions in relation to a person (other than a person referred to
in subsection (5)), after considering any matter communicated by a police
officer as to the intended apprehension of the person by a police
officer—
(a)
detain the person for a period not exceeding 2
hours pending the person’s apprehension by a police
officer,
(b)
admit the person in accordance with this Act as a
voluntary patient,
(c)
discharge the person, in so far as it may be
possible to do so, into the care of a designated carer or the principal care
provider of the person,
(d)
discharge the person.
(5)
If the person is a person ordered to be brought
back before a court under section 19(b) or 21(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions
Act 2020—
(a)
it is the duty of the police officer notified by
the authorised medical officer to ensure that a police officer attends the
mental health facility and apprehends the person as soon as practicable after
notification, and
(b)
the authorised medical officer must detain the
person pending the person’s apprehension by a police
officer.
(6)
A police officer may apprehend a person under
this section without a warrant.
(7)
In subsections (2) and (3)—
relevant person
means—
(a)
if the detained person was taken to the mental
health facility on an order under Division 3 of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions
Act 2020, any person (including a police officer) charged
by the order with taking the person from the facility, or
(b)
in any other case, a police
officer.
s 32: Am 2008 No 79,
Sch 2 [6]; 2009 No 56, Sch 1.25 [1] [2]; 2014 No 85, Sch 1 [18] [19]; 2017 No
44, Sch 1.19; 2020 No 12, Sch 3.17[5] [6].
33Actions may be delayed because of other illnesses or
conditions
Despite any other provision of this Act, an
authorised medical officer is not required—
(a)
to take or complete a step referred to in section
27, or
(b)
to bring a person before the Tribunal for a
mental health inquiry,
while the person is suffering from a condition or
illness other than a mental illness or other mental condition and is not, in
the officer’s opinion, fit to be the subject of the proposed action due
to the seriousness of the person’s condition or illness.
s 33: Am 2008 No 107,
Sch 16 [5].
Division 3Continuing detention in mental health
facilities
34Mental health inquiries to be held
(1)
The Tribunal must hold an inquiry about an
assessable person under step 4 in section 27 (d).
Note—
Section 27 sets out the events that result in a
mental health inquiry. Notice of the inquiry is to be given to the person
concerned, and all reasonably practicable steps are to be taken to notify
designated carers and the principal care provider in accordance with section
76.
(2)
An authorised medical officer of the mental
health facility in which an assessable person is detained—
(a)
must ensure that, as far as practicable, the
person is brought before the Tribunal dressed in street clothes,
and
(b)
must make all necessary arrangements to ensure
that all appropriate medical witnesses appear before the Tribunal and other
relevant medical evidence concerning the person is placed before the Tribunal
at or before the inquiry, and
(c)
as soon as practicable after notifying the
Tribunal under section 27 (d), and at or before the inquiry, must provide the
Tribunal with all relevant medical reports of the examinations in step 1 or
step 2, as referred to in section 27 (d), and any additional information
required by the Tribunal for the purposes of the
inquiry.
An assessable person, or any other person, may,
with the approval of the Tribunal and subject to the regulations (if any), be
brought or appear before the Tribunal by way of audio visual
link.
Any designated carer or the principal care
provider of an assessable person may, with the approval of the Tribunal,
appear at an inquiry.
Note—
The Tribunal must be constituted by at least one
member who is the President or a Deputy President for the purposes of a mental
health inquiry (see section 150 (2A)). Other provisions relating to the
Tribunal’s procedures generally, that apply to mental health inquiries
and other proceedings, are set out in Part 2 of Chapter
6.
s 34: Subst 2008 No
107, Sch 16 [6]. Am 2014 No 85, Sch 1 [20] [21].
35Purpose and findings of mental health
inquiries
(cf 1990 Act, ss 50–52)
(1)
The Tribunal when holding a mental health inquiry
is to determine whether or not, on the balance of probabilities, the
assessable person is a mentally ill person.
(2)
For that purpose, the Tribunal is to do the
following—
(a)
consider the reports and recommendations of the
authorised medical officer and other medical practitioners who examined the
person under section 27 after the person’s
detention,
(b)
consider any other information before the
Tribunal,
(c)
inquire about the administration of any
medication to the person and take account of its effect on the person’s
ability to communicate,
(d)
have due regard to any cultural factors relating
to the person that may be relevant to the determination,
(e)
have due regard to any evidence given at the
inquiry by an expert witness concerning the person’s cultural background
and its relevance to any question of mental
illness.
(2A)
As soon as practicable after the beginning of a
mental health inquiry, the Tribunal must ask the assessable person whether the
person—
(a)
has been given a written statement, in the
prescribed form, of the person’s legal rights and other entitlements, as
required by section 74, and
(b)
has been informed of the duty imposed under
section 76 on the authorised medical officer relating to the giving of the
notice specified in that section.
(2B)
As soon as practicable after the beginning of a
mental health inquiry, the Tribunal must ascertain from the authorised medical
officer whether the written statement and notice referred to in subsection
(2A) have been given or all such things as are reasonably practicable have
been done to give that statement or notice, as the case
requires.
(3)
If the Tribunal is not satisfied, on the balance
of probabilities, that an assessable person is a mentally ill person, the
Tribunal must order that the person be discharged from the mental health
facility.
(4)
The Tribunal may defer the operation of an order
for the discharge of a person for a period of up to 14 days, if the Tribunal
thinks it is in the best interests of the person to do
so.
(5)
If the Tribunal is satisfied, on the balance of
probabilities, that an assessable person is a mentally ill person, the
Tribunal may make any of the following orders—
(a)
an order that the person be discharged into the
care of a designated carer or the principal care provider of the
person,
(b)
a community treatment order,
(c)
an order that the person be detained in or
admitted to and detained in a mental health facility for further observation
or treatment, or both, as an involuntary patient, for a specified period of up
to 3 months, if the Tribunal is of the opinion that no other care of a less
restrictive kind, that is consistent with safe and effective care, is
appropriate and reasonably available or that for any other reason it is not
appropriate to make any other order under this
subsection.
s 35: Am 2008 No 79,
Sch 2 [7]; 2008 No 107, Sch 16 [7]–[12]; 2014 No 85, Sch 1 [22]; 2022 No
41, Sch 6[3].
36Adjournments
(1)
The Tribunal may, from time to time, adjourn a
mental health inquiry for a period not exceeding 14
days.
(2)
Without limiting subsection (1), the Tribunal may
adjourn the inquiry if it is not satisfied—
(a)
that the assessable person has been informed of
the duty imposed under section 76 on the authorised medical officer relating
to the giving of the notice specified in that section, or
(b)
that the notice specified in the section has been
given or all such things as are reasonably practicable have been done to give
that notice.
(3)
The Tribunal may adjourn an inquiry under this
section only if—
(a)
the Tribunal is of the opinion that it is in the
best interests of the assessable person to do so, and
(b)
the Tribunal has considered any certificates
given under this Act available to the Tribunal.
(4)
If an inquiry is adjourned, the assessable person
is to continue to be detained in the mental health facility unless the person
is discharged or allowed to be absent from the facility under another
provision of this Act.
s 36: Subst 2008 No
107, Sch 16 [13].
37Reviews of involuntary patients by
Tribunal
(1)
The Tribunal must review the case of each
involuntary patient as follows—
(a)
at the end of the patient’s initial period
of detention as a result of a mental health inquiry,
(b)
at least once every 3 months for the first 12
months the person is an involuntary patient,
(c)
at least once every 6 months while the person is
an involuntary patient after the first 12 months of
detention.
(1A)
The Tribunal may review the case of an
involuntary patient at such other times as it sees fit.
(2)
An authorised medical officer must cause an
involuntary patient to be brought before the Tribunal—
(a)
as soon as practicable before the end of the
initial period of detention, if it appears to the officer that the person
should continue to be detained, and
(b)
at such other times as may be required by the
Tribunal for the purposes of any review under this
section.
(3)
The authorised medical officer must ensure that,
as far as practicable, a person brought before the Tribunal is dressed in
street clothes.
(3A)
The Tribunal may review the case of an
involuntary patient in the absence of the patient if—
(a)
the authorised medical officer applies to have
the review carried out in the absence of the patient because the patient has
refused to attend the review or because the officer is of the opinion that the
patient is too unwell to attend the review, and
(b)
the Tribunal is satisfied that the patient has
refused to attend or is too unwell to attend and is unlikely to be well enough
to attend within a reasonable period, and
(c)
the Tribunal is satisfied that any representative
of the patient (being an Australian legal practitioner, or other person
approved by the Tribunal, who is representing the patient for the purposes of
the review) has been notified of the review, and
Note—
Section 154 contains provisions relating to the
right to representation.
(d)
the Tribunal has considered the views (if known)
of each of the following—
(i)
the patient,
(ii)
any representative of the
patient,
(iii)
the designated carer of the
patient,
(iv)
the principal care provider of the patient,
and
(e)
the Tribunal is of the opinion that carrying out
the review in the absence of the patient is desirable for the safety or
welfare of the patient.
(4)
Despite subsection (1) (c), the Tribunal may
review the case of an involuntary patient at intervals of up to 12 months if
it is of the opinion that it is appropriate to do so.
s 37: Am 2010 No 96,
Sch 1 [1]; 2018 No 2, Sch 4 [1].
38Purpose and findings of reviews of involuntary
patients
(1)
The Tribunal is, on a review of an involuntary
patient, to determine whether the patient is a mentally ill person for whom no
other care (other than care in a mental health facility) is appropriate and
reasonably available.
(2)
For that purpose, the Tribunal is to do the
following—
(a)
consider any information before
it,
(b)
inquire about the administration of any
medication to the patient and take account of its effect on the
patient’s ability to communicate.
(3)
If the Tribunal determines that the patient is
not a mentally ill person, the patient must be discharged from the mental
health facility in which the patient is detained.
(4)
If the Tribunal determines that the patient is a
mentally ill person and that no other care of a less restrictive kind, that is
consistent with safe and effective care, is appropriate and reasonably
available to the patient, the Tribunal must make an order that the patient
continue to be detained as an involuntary patient in a mental health facility
for further observation or treatment, or both.
(5)
In any other case that the Tribunal determines
that a patient is a mentally ill person, it must make an order that the
patient be discharged from the mental health facility in which the patient is
detained and may make any of the following orders—
(a)
an order that the patient be discharged into the
care of a designated carer or the principal care provider of the
person,
(b)
a community treatment
order.
(6)
The Tribunal may defer the operation of an order
for the discharge of a patient for a period of up to 14 days, if the Tribunal
thinks it is in the best interests of the patient to do
so.
(7)
An order made by the Tribunal under this section
is to be in the form approved by the President.
s 38: Am 2008 No 79,
Sch 2 [8]; 2014 No 85, Sch 1 [23].
39Medical examination of involuntary
patients
(cf 1990 Act, s 61)
(1)
An authorised medical officer must medically
examine each involuntary patient of the mental health facility, or cause each
involuntary patient to be medically examined, to determine whether the
patient’s continued detention in the facility is
necessary.
(2)
The medical examinations are to be carried out at
intervals of not more than 3 months.
40Re-classification of involuntary patients as voluntary
patients
(cf 1990 Act, s 64)
(1)
An involuntary patient may be classified as a
voluntary patient of the mental health facility in which the patient is
detained—
(a)
by an authorised medical officer at any time,
or
(b)
by the Tribunal when conducting a review of the
patient.
(2)
A patient may be so classified only
if—
(a)
the authorised medical officer or Tribunal is of
the opinion that the patient is likely to benefit from care or treatment as a
voluntary patient, and
(b)
the patient agrees to be so classified or, if the
patient is a person under guardianship, the patient is admitted in accordance
with the procedures under this Act applicable to admitting such persons as
voluntary patients.
(3)
Without limiting subsection (1), a person who is
discharged as an involuntary patient may be admitted as a voluntary patient
immediately on discharge.
Note—
For additional circumstances when a patient or
person must be released from a mental health facility, see section
12.
s 40: Am 2010 No 96,
Sch 1 [2] [3].
41Discharge on making of community treatment
order
(cf 1990 Act, s 132)
(1)
An authorised medical officer must discharge a
patient or person who is detained in a mental health facility when a community
treatment order is made about the patient or person and any order authorising
the patient’s or person’s detention ceases to have
effect.
(2)
This section does not prevent an affected person
subject to a community treatment order from being admitted to or detained in a
mental health facility.
(3)
This section is subject to any order made under
section 53 deferring the discharge of an involuntary
patient.
s 41: Am 2014 No 85,
Sch 1 [24].
42Discharge of involuntary patients on own
application
(cf 1990 Act, s 67)
(1)
An involuntary patient of a mental health
facility or another person detained in a mental health facility may make an
application to the authorised medical officer to be
discharged.
(2)
The authorised medical officer may discharge the
patient or person.
Note—
The authorised medical officer may also classify
a patient as a voluntary patient (see section 40).
43Discharge of involuntary patients on application of
designated carer or principal care provider
(cf 1990 Act, s 68)
(1)
Any designated carer or the principal care
provider of an involuntary patient or another person detained in a mental
health facility may, at any time, apply to an authorised medical officer of
the mental health facility for the discharge of the patient or
person.
(2)
The authorised medical officer may discharge the
patient or person if—
(a)
the applicant gives the authorised medical
officer a written undertaking that the patient or person will be properly
taken care of, and
(b)
the authorised medical officer is satisfied that
adequate measures will, so far as is reasonably practicable, be taken to
prevent the patient or person from causing harm to himself or herself or
others.
s 43: Am 2014 No 85,
Sch 1 [25].
43ATribunal to be informed of discharge of a forensic
patient
An authorised medical officer of a mental health
facility must, as soon as is reasonably practicable, notify the Tribunal of
the discharge of a person detained in the mental health facility whom the
officer knows is a forensic patient.
s 43A: Ins 2013 No
24, Sch 5 [3].
44Appeals against discharge refusals
(cf 1990 Act, ss 69, 70)
(1)
An involuntary patient or person detained at a
mental health facility (the applicant) who applies to be
discharged, or a person who applies for the discharge of the applicant, or a
person appointed by the applicant, may appeal to the Tribunal if—
(a)
the authorised medical officer refuses the
application, or
(b)
the authorised medical officer fails to determine
the application within 3 working days after it is
made.
(2)
An appeal may be made orally or in writing and is
to be made in accordance with the regulations.
(3)
The authorised medical officer must provide the
Tribunal with a report about the applicant, including the officer’s
reasons for refusing to discharge the applicant or failing to determine the
application.
(4)
For the purpose of determining an appeal, the
Tribunal has and may exercise the functions of the authorised medical officer
with respect to the discharge application and may make an order
accordingly.
(5)
In addition, the Tribunal may determine that no
further right of appeal may be exercised under this section before the date on
which the person is next reviewed by the Tribunal under this Act, if it thinks
it appropriate to do so, having regard to the following—
(a)
the interval between the last determination under
this Act that the applicant was a mentally ill person and the date of the
appeal,
(b)
the frequency of appeals under this section made
by or on behalf of the applicant,
(c)
the last report about the applicant by the
authorised medical officer under this section,
(d)
any other matter the Tribunal considers
relevant.
(6)
The Tribunal may defer the operation of an order
under this section for the discharge of a person for a period of up to 14
days, if the Tribunal decides it is in the best interests of the person to do
so.
Note—
The Tribunal may, on application, make a
community treatment order for an involuntary patient or detained person who is
the subject of an appeal (see section 51).
s 44: Am 2014 No 85,
Sch 1 [26].
45Review and discharge of absent
patients
(cf 1990 Act, ss 72, 73)
(1)
An authorised medical officer must review the
mental health and welfare of a patient or person detained in a mental health
facility under this Act who is absent from the mental health facility with
permission if the absence is for a continuous period of more than 28
days.
(2)
The authorised medical officer must discharge the
patient or person following the review unless the officer is of the opinion
that further detention of the patient or person in the facility is
necessary.
(3)
An authorised medical officer of a mental health
facility must discharge a patient or person detained in the facility under
this Act who is absent from the mental health facility for a single period
exceeding 12 months.