New South Wales: Mental Health Act 2007 (NSW)

Mental Health Act 2007 No 8 An Act to make provision with respect to the care, treatment and control of mentally ill and mentally disordered persons and other matters relating to mental health; and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act is the Mental Health Act 2007. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are— (a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and (b) to facilitate the care and treatment of those persons through community care facilities, and (c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and (d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and (e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment. Note— See also section 68 which contains principles for care and treatment and section 105 which sets out objectives for the New South Wales public health system. 4 Definitions (1) In this Act— accredited person means a person accredited under section 136. ambulance officer means a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act. assessable person—see section 17. authorised medical officer of a mental health facility means— (a) the medical superintendent of the mental health facility, or (b) a medical officer, nominated by the medical superintendent for the purposes of this Act, attached to the mental health facility concerned. community treatment order means a community treatment order in force under Part 3 of Chapter 3. correctional patient has the same meaning as it has in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Court means the Supreme Court. declared mental health facility means premises subject to an order in force under section 109. Deputy President means a person appointed as a Deputy President of the Tribunal. designated carer—see section 71. determination of the Tribunal includes an order, direction or decision of the Tribunal. director of community treatment—see section 50. exercise a function includes perform a duty. forensic patient has the same meaning as it has in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. function includes a power, authority or duty. guardian, in relation to the exercise of any function under this Act by the guardian of a person under guardianship, means a guardian who is able to exercise that function. involuntary patient means— (a) a person who is ordered to be detained as an involuntary patient after a mental health inquiry or otherwise by the Tribunal, or (b) a forensic patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, or (c) a correctional patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. medical superintendent— (a) of a declared mental health facility, means the medical practitioner appointed, under section 111, as medical superintendent of the facility, or (b) of a private mental health facility, means the medical practitioner appointed, under section 124, as medical superintendent of the facility. mental health certificate—see section 17. mental health facility means a declared mental health facility or a private mental health facility. mental health inquiry means an inquiry conducted by the Tribunal under Division 3 of Part 2 of Chapter 3. mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms— (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d). mentally disordered person—see section 15. mentally ill person—see section 14. parent, of a child, means any person having parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child. patient means a person who is admitted to a mental health facility in accordance with this Act and who is in the facility following the person's admission, and includes a person so admitted while absent from the facility either with or without leave of absence. person under guardianship means a person under guardianship within the meaning of the Guardianship Act 1987. premises includes any land, building and part of any building. President means the President of the Tribunal. principal care provider—see section 72A. private mental health facility means premises subject to a licence under Division 2 of Part 2 of Chapter 5. Secretary means the Secretary of the Ministry of Health. spouse means— (a) the person to whom a person is legally married (including the husband or wife of a person), or (b) a de facto partner, but where more than one person would qualify as a spouse, means only the last person to so qualify. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. surgical operation—see section 98. Tribunal means the Mental Health Review Tribunal constituted under Chapter 6. voluntary patient means— (a) a person who has been admitted to a mental health facility under Chapter 2, or (b) a person who has been re-classified as a voluntary patient under this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act (other than in Schedule 1) do not form part of this Act. Chapter 2 Voluntary admission to facilities 5 Admission on own request (1) A person may be admitted to a mental health facility as a voluntary patient. (2) An authorised medical officer may refuse to admit a person to a mental health facility as a voluntary patient if the officer is not satisfied that the person is likely to benefit from care or treatment as a voluntary patient. (3) A person may be admitted to a mental health facility as a voluntary patient whether or not the person is a mentally ill person or a mentally disordered person. 6 Voluntary admission of children (cf 1990 Act, ss 13–15) (1) An authorised medical officer must, as soon as practicable after admitting a person under the age of 16 years as a voluntary patient, take all reasonably practicable steps to notify a parent of the person of the admission. (2) An authorised medical officer must discharge a person of 14 or 15 years of age who has been admitted as a voluntary patient if a parent of the person objects to the admission to the officer, unless the person elects to continue as a voluntary patient. (3) A person under the age of 14 years must not be admitted as a voluntary patient if a parent of the person objects to the admission to an authorised medical officer. (4) An authorised medical officer must discharge a person under the age of 14 years who has been admitted as a voluntary patient if a parent of the person requests that the person be discharged. 7 Voluntary admission of persons under guardianship (cf 1990 Act, s 16) (1) A person under guardianship may be admitted to a mental health facility as a voluntary patient if the guardian of the person makes a request to an authorised medical officer. (2) A person under guardianship must not be admitted as a voluntary patient if the person's guardian objects to the admission to the authorised medical officer. (3) An authorised medical officer must discharge a person under guardianship who has been admitted as a voluntary patient if the person's guardian requests that the person be discharged. 8 Discharge of voluntary patients (cf 1990 Act, s 65) (1) An authorised medical officer may discharge a voluntary patient at any time if the officer is of the opinion that the patient is not likely to benefit from further care or treatment as a voluntary patient. (2) A voluntary patient may discharge himself or herself from or leave a mental health facility at any time. (3) An authorised medical officer must give notice of the discharge of a voluntary patient who is a person under guardianship to the person's guardian. Note— Section 79 provides for appropriate information relating to follow-up care to be provided to patients being discharged. 9 Review of voluntary patients (cf 1990 Act, s 63) (1) The Tribunal must review, at least once every 12 months, the case of each voluntary patient who has been receiving care or treatment, or both, whether in a voluntary or involuntary capacity in a mental health facility for a continuous period of more than 12 months. (2) In addition to any other matters it considers on a review, the Tribunal is to consider whether the patient consents to continue as a voluntary patient and whether the patient is likely to benefit from further care or treatment as a voluntary patient. (3) The Tribunal may on a review order the discharge of the patient from the mental health facility. (4) 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. (5) The medical superintendent of a mental health facility must notify the Tribunal of the name of any voluntary patient whose case the Tribunal is required to review. 10 Detention of voluntary patients in mental health facilities (cf 1990 Act, s 18A) (1) An authorised medical officer may cause a voluntary patient to be detained in a mental health facility under Part 2 of Chapter 3 if the officer considers the person to be a mentally ill person or a mentally disordered person. (2) Any such patient is taken to have been detained in the facility under section 19 when the authorised medical officer takes action to detain the patient. (3) A voluntary patient in a mental health facility may be detained for a period of up to 2 hours for the purpose of enabling an authorised medical officer to exercise the officer's functions under this section. 11 Review of decisions made by authorised medical officer to refuse admission or discharge voluntary patient (cf 1990 Act, s 19) (1) This section applies to a decision made under this Chapter by an authorised medical officer (other than a medical superintendent) to refuse a person admission to a mental health facility as a voluntary patient or to discharge a person as a voluntary patient. (2) The person affected by a decision may apply to the medical superintendent for a review of the decision. (3) The medical superintendent must review a decision as soon as practicable after receiving an application for its review and may confirm the decision, admit or discharge the person as a voluntary patient or take any other action under this Act that the medical superintendent thinks fit. Chapter 3 Involuntary admission and treatment in and outside facilities Part 1 Requirements for involuntary admission, detention and treatment 12 General restrictions on detention of persons (1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that— (a) the person is a mentally ill person or a mentally disordered person, and (b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person. (2) If an authorised medical officer is not of that opinion about a patient or other person at a mental health facility, the officer must refuse to detain, and must not continue to detain, the person. (3) An authorised medical officer may, immediately on discharging a patient or person who has been detained in a mental health facility, admit that person as a voluntary patient. 13 Criteria for involuntary admission etc as mentally ill person or mentally disordered person (cf 1990 Act, s 8) A person is a mentally ill person or a mentally disordered person for the purpose of— (a) the involuntary admission of the person to a mental health facility or the detention of the person in a facility under this Act, or (b) determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a mental health facility, if, and only if, the person satisfies the relevant criteria set out in this Part. 14 Mentally ill persons (cf 1990 Act, s 9) (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary— (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account. 15 Mentally disordered persons (cf 1990 Act, s 10) A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person's behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary— (a) for the person's own protection from serious physical harm, or (b) for the protection of others from serious physical harm. 16 Certain words or conduct may not indicate mental illness or disorder (cf 1990 Act, s 11) (1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following— (a) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief, (b) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief, (c) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy, (d) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation, (e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity, (f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity, (g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity, (h) the person engages in or has engaged in immoral conduct, (i) the person engages in or has engaged in illegal conduct, (j) the person has an intellectual disability or developmental disability, (k) the person takes or has taken alcohol or any other drug, (l) the person engages in or has engaged in anti-social behaviour, (m) the person has a particular economic or social status or is a member of a particular cultural or racial group. (2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind. Part 2 Involuntary detention and treatment in mental health facilities Division 1 Preliminary 17 Definitions In this Part— assessable person means a person detained in a declared mental health facility for whom a mental health inquiry is required to be held under this Part. mental health certificate means a certificate given under section 19. Division 2 Admission to and initial detention in mental health facilities 18 When 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. 19 Detention 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. 19A Examination 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. 20 Detention 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. 21 Police 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. 22 Detention 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. 23 Detention 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. 24 Detention 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. 25 Detention 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. 26 Detention 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. 27 Steps 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. 27A Examinations 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. 28 Obligations 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. 28A Tribunal 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. 29 Treatment 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. 30 Assessable 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. 31 Limited 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. 32 Detention 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. 33 Actions 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. Division 3 Continuing detention in mental health facilities 34 Mental 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. 35 Purpose 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. 36 Adjournments (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. 37 Reviews 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. 38 Purpose 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. 39 Medical 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. 40 Re-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. 41 Discharge 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. 42 Discharge 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). 43 Discharge 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. 43A Tribunal 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. 44 Appeals 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). 45 Review 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. Division 4 Leave of absence from mental health facilities 46 Application of Division This Division applies to an involuntary patient or a person who is detained in a mental health facility under this Act. 47 Leave of absence on compassionate grounds, medical grounds or other grounds (1) An authorised medical officer may permit a person to be absent from a mental health facility for the period, and on the conditions, that the officer thinks fit. (2) Permission may be given on compassionate grounds, on the ground that medical treatment is required or on any other ground the authorised medical officer thinks fit. Note— A person may also be transferred from a mental health facility to another health facility on medical grounds (see section 80). (3) An authorised medical officer may not grant leave of absence unless the officer is satisfied that, as far as is practicable, adequate measures have been taken to prevent the person concerned from causing harm to himself or herself or others. 48 Apprehension of persons not permitted to be absent from mental health facility (cf 1990 Act, ss 75, 76) (1) An authorised medical officer of a mental health facility may apprehend a person, or direct a person to be apprehended, if— (a) the person fails to return to the facility on or before the expiry of a permitted period of absence granted under this Part or fails to comply with a condition of the permission, or (b) the person absents himself or herself from the facility otherwise than in accordance with this Act. (2) The person may be apprehended by any of the following persons— (a) an authorised medical officer or any other suitably qualified person employed at the mental health facility, (b) a police officer, (c) a person authorised by the Minister or the authorised medical officer, (d) a person assisting a person referred to in paragraph (a), (b) or (c). (3) A person who is apprehended is to be conveyed to and detained in the mental health facility from which the person absented himself or herself (whether directly or indirectly by way of another mental health facility). 49 Police assistance (1) An authorised medical officer may request that a police officer apprehend, or assist in apprehending, a person under this Division if the officer 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. (2) A police officer to whose notice any such request is brought may— (a) apprehend and take or assist in taking the person to the mental health facility from which the person absented himself or herself, or (b) cause or make arrangements for some other police officer to do so. (3) A police officer may enter premises to apprehend a person under this section or section 48, and may apprehend any such person, without a warrant and may exercise any powers conferred under 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. Part 3 Involuntary treatment in the community Division 1 Applications for and making of community treatment orders 50 Definitions In this Part— affected person means a person for whom a community treatment order has been applied for or made. breach notice—see section 58 (3). breach order—see section 58 (4). director of community treatment of a mental health facility means a person appointed under section 113 as the director of community treatment of the mental health facility. psychiatric case manager means a person employed at a declared mental health facility who is appointed under section 114 as the psychiatric case manager of an affected person. treatment plan—see section 54. 51 Community treatment orders (1) A community treatment order authorising the compulsory treatment in the community of a person may be made by the Tribunal. Note— Section 56 sets out the matters to be included in community treatment orders. (2) The following persons may apply for a community treatment order for the treatment of a person— (a) the authorised medical officer of a mental health facility in which the affected person is detained or is a patient under this Act, (b) a medical practitioner who is familiar with the clinical history of the affected person, (c) any other person prescribed by the regulations. (3) An application may be made about a person who is detained in or a patient in a mental health facility or a person who is not in a mental health facility. (4) An application may be made about a person who is subject to a current community treatment order. (5) A community treatment order may be made in the following circumstances and may replace an existing order— (a) following a mental health inquiry, (b) on a review of a patient by the Tribunal, (c) on an application otherwise being made to the Tribunal. (6) Without limiting subsection (5) (c), an application for a community treatment order may be made, and determined by the Tribunal, in the same proceedings as an appeal under section 44. 52 Notice of applications (1) The applicant for a community treatment order must notify the affected person in writing of the application. (2) The notice of the application is to include a copy of the proposed treatment plan for the affected person. (3) If the affected person is not detained in a mental health facility, the application must be heard not earlier than 14 days after the notice is given to the affected person. (4) Subsection (3) does not apply— (a) to an application for a further