Queensland: Mental Health Act 2016 (Qld)

Mental Health Act 2016 An Act to provide for the treatment and care of people who have mental illnesses and for other purposes Chapter 1 Preliminary Part 1 Introduction 1 Short title This Act may be cited as the Mental Health Act 2016. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Main objects of Act (1) The main objects of this Act are— (a) to improve and maintain the health and wellbeing of persons who have a mental illness who do not have the capacity to consent to be treated; and (b) to enable persons to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial; and (c) to protect the community if persons diverted from the criminal justice system may be at risk of harming others. (2) The main objects are to be achieved in a way that— (a) safeguards the rights of persons; and (b) is the least restrictive of the rights and liberties of a person who has a mental illness; and (c) promotes the recovery of a person who has a mental illness, and the person's ability to live in the community, without the need for involuntary treatment and care. (3) For subsection (2)(b), a way is the least restrictive of the rights and liberties of a person who has a mental illness if the way adversely affects the person's rights and liberties only to the extent required to protect the person's safety and welfare or the safety of others. 4 Act binds all persons (1) This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the State liable to be prosecuted for an offence. Part 2 Principles for administration of Act 5 Principles for persons with mental illness The following principles apply to the administration of this Act in relation to a person who has, or may have, a mental illness— (a)Same human rights • the right of all persons to the same basic human rights must be recognised and taken into account • a person's right to respect for his or her human worth and dignity as an individual must be recognised and taken into account (b)Matters to be considered in making decisions • to the greatest extent practicable, a person is to be encouraged to take part in making decisions affecting the person's life, especially decisions about treatment and care • to the greatest extent practicable, in making a decision about a person, the person's views, wishes and preferences are to be taken into account • a person is presumed to have capacity to make decisions about the person's treatment and care and other matters under this Act (c)Support persons • to the greatest extent practicable, family, carers and other support persons of a person who has a mental illness are to be involved in decisions about the person's treatment and care, subject to the person's right to privacy (d)Provision of support and information • to the greatest extent practicable, a person is to be provided with necessary support and information to enable the person to exercise rights under this Act, including, for example, providing access to other persons to help the person express the person's views, wishes and preferences (e)Achievement of maximum potential and self-reliance • to the greatest extent practicable, a person is to be helped to achieve maximum physical, social, psychological and emotional potential, quality of life and self-reliance (f)Acknowledgement of needs • a person's age-related, gender-related, religious, communication and other special needs must be recognised and taken into account • a person's hearing, visual or speech impairment must be recognised and taken into account (g)Aboriginal people and Torres Strait Islanders • the unique cultural, communication and other needs of Aboriginal people and Torres Strait Islanders must be recognised and taken into account • Aboriginal people and Torres Strait Islanders should be provided with treatment, care and support in a way that recognises and is consistent with Aboriginal tradition or Island custom, mental health and social and emotional wellbeing, and is culturally appropriate and respectful • to the extent practicable and appropriate in the circumstances, communication with Aboriginal people and Torres Strait Islanders is to be assisted by an interpreter (h)Persons from culturally and linguistically diverse backgrounds • the unique cultural, communication and other needs of persons from culturally and linguistically diverse backgrounds must be recognised and taken into account • services provided to persons from culturally and linguistically diverse backgrounds must have regard to the person's cultural, religious and spiritual beliefs and practices • to the extent practicable and appropriate in the circumstances, communication with persons from culturally and linguistically diverse backgrounds is to be assisted by an interpreter (i)Minors • to the greatest extent practicable, a minor receiving treatment and care must have the minor's best interests recognised and promoted, including, for example, by receiving treatment and care separately from adults if practicable and by having the minor's specific needs, wellbeing and safety recognised and protected (j)Maintenance of supportive relationships and community participation • to the greatest extent practicable, the importance of a person's continued participation in community life and maintaining existing supportive relationships are to be taken into account, including, for example, by providing treatment in the community in which the person lives (k)Importance of recovery-oriented services and reduction of stigma • the importance of recovery-oriented services and the reduction of stigma associated with mental illness must be recognised and taken into account (l)Provision of treatment and care • treatment and care provided under this Act must be provided to a person who has a mental illness only if it is appropriate for promoting and maintaining the person's health and wellbeing (m)Privacy and confidentiality • a person's right to privacy and confidentiality of information about the person must be recognised and taken into account. 6 Principles for victims and others (1) The principles mentioned in subsection (2) apply to the administration of this Act in relation to each of the following (each a victim)— (a) a victim of an unlawful act; (b) a close relative of a victim of an unlawful act; (c) another individual who has suffered harm because of an unlawful act committed against a person mentioned in paragraph (a). (2) The principles are the following— (a) the physical, psychological and emotional harm caused to the victim by the unlawful act must be recognised with compassion; (b) the benefits of counselling, advice on the nature of proceedings under this Act and other support services to the recovery of the victim from the harm caused by the unlawful act must be recognised; (c) the benefits to the victim of being advised in a timely way of proceedings under this Act against a person in relation to the unlawful act must be recognised; (d) the benefits to the victim of the timely completion of proceedings against a person in relation to the unlawful act must be recognised; (e) the benefits to the victim of being advised in a timely way of a decision to allow a person to be treated in the community must be recognised; (f) the benefits to the victim of being given the opportunity to express the victim's views on the impact of the unlawful act to decision-making entities under this Act must be recognised. 7 Regard to principles In performing a function or exercising a power under this Act, a person is to have regard to the principles mentioned in sections 5 and 6. 8 Application to person with intellectual disability To the extent this Act applies to a person who has an intellectual disability— (a) sections 3 and 5 apply in relation to the person as if a reference in the sections to a person who has a mental illness were a reference to a person who has an intellectual disability; and (b) a reference in the Act to treatment and care of a person means a reference to care of the person; and (c) a reference in the Act to recovery of a person means a reference to the rehabilitation, and development of living skills, of the person. Part 3 Interpretation 9 Definitions The dictionary in schedule 3 defines particular words used in this Act. 10 Meaning of mental illness (1) Mental illness is a condition characterised by a clinically significant disturbance of thought, mood, perception or memory. (2) However, a person must not be considered to have a mental illness merely because— (a) the person holds or refuses to hold a particular religious, cultural, philosophical or political belief or opinion; or (b) the person is a member of a particular racial group; or (c) the person has a particular economic or social status; or (d) the person has a particular sexual preference or sexual orientation; or (e) the person engages in sexual promiscuity; or (f) the person engages in immoral or indecent conduct; or (g) the person takes drugs or alcohol; or (h) the person has an intellectual disability; or (i) the person engages in antisocial behaviour or illegal behaviour; or (j) the person is or has been involved in family conflict; or (k) the person has previously been treated for a mental illness or been subject to involuntary assessment or treatment. (3) Subsection (2) does not prevent a person mentioned in the subsection having a mental illness. Examples for subsection (3)— 1 A person may have a mental illness caused by taking drugs or alcohol. 2 A person may have a mental illness as well as an intellectual disability. (4) A decision that a person has a mental illness must be made in accordance with internationally accepted medical standards. 11 Meaning of involuntary patient An involuntary patient means— (a) a person subject to any of the following— (i) an examination authority; (ii) a recommendation for assessment; (iii) a treatment authority; (iv) a forensic order; (v) a treatment support order; (vi) a judicial order; or (b) a person detained in an authorised mental health service or public sector health service facility under section 36; or (c) a person from another State detained in an authorised mental health service under section 368(3)(b). 12 Meaning of treatment criteria (1) The treatment criteria for a person are all of the following— (a) the person has a mental illness; (b) the person does not have capacity to consent to be treated for the illness; (c) because of the person's illness, the absence of involuntary treatment, or the absence of continued involuntary treatment, is likely to result in— (i) imminent serious harm to the person or others; or (ii) the person suffering serious mental or physical deterioration. (2) For subsection (1)(b), the person's own consent only is relevant. (3) Subsection (2) applies despite the Guardianship and Administration Act 2000, the Powers of Attorney Act 1998 or any other law. 13 Meaning of less restrictive way (1) For this Act, there is a less restrictive way for a person to receive treatment and care for the person's mental illness if, instead of receiving involuntary treatment and care, the person is able to receive the treatment and care that is reasonably necessary for the person's mental illness in 1 of the following ways— (a) if the person is a minor—with the consent of the minor's parent; (b) if the person has made an advance health directive—under the advance health directive; (c) if a personal guardian has been appointed for the person—with the consent of the personal guardian; (d) if an attorney has been appointed by the person—with the consent of the attorney; (e) otherwise—with the consent of the person's statutory health attorney. Examples of when there may not be a less restrictive way for a person to receive the treatment and care that is reasonably necessary for the person's mental illness— 1 An advance health directive does not cover the matters that are clinically relevant or appropriate for the person's treatment and care. 2 An advance health directive does not authorise the administration of the medications that are clinically necessary for the person's treatment and care. 3 An attorney does not consent to the administration of the medications that are clinically necessary for the person's treatment and care. (2) In deciding whether there is a less restrictive way for a person to receive the treatment and care that is reasonably necessary for the person's mental illness, a person performing a function or exercising a power under this Act must— (a) consider the ways mentioned in subsection (1) in the listed order set out in the subsection; and (b) comply with the policy that must be made by the chief psychiatrist under section 305(1)(a) about when it may not be appropriate for a person to receive treatment and care for the person's mental illness under an advance health directive or with the consent of a personal guardian, attorney or statutory health attorney for the person. (3) To remove any doubt, it is declared that this section does not limit the power of the public guardian to act as a statutory health attorney for a person under the Powers of Attorney Act 1998. (4) In this section— statutory health attorney means the person's statutory health attorney under the Powers of Attorney Act 1998, section 63(1). 14 Meaning of capacity to consent to be treated (1) A person has capacity to consent to be treated if the person— (a) is capable of understanding, in general terms— (i) that the person has an illness, or symptoms of an illness, that affects the person's mental health and wellbeing; and (ii) the nature and purpose of the treatment for the illness; and (iii) the benefits and risks of the treatment, and alternatives to the treatment; and (iv) the consequences of not receiving the treatment; and (b) is capable of making a decision about the treatment and communicating the decision in some way. (2) A person may have capacity to consent to be treated even though the person decides not to receive treatment. (3) A person may be supported by another person in understanding the matters mentioned in subsection (1)(a) and making a decision about the treatment. (4) This section does not affect the common law in relation to— (a) the capacity of a minor to consent to be treated; or (b) a parent of a minor consenting to treatment of the minor. 14A Territory of Norfolk Island taken to be a State For this Act, the Territory of Norfolk Island is taken to be a State. 15 Responsibility for involuntary patient or forensic disability client (1) This section applies if a provision of this Act states that— (a) an authorised mental health service is responsible for an involuntary patient; or (b) the forensic disability service is responsible for a person subject to a forensic order (disability). (2) If subsection (1)(a) applies, the administrator of the authorised mental health service is responsible for the treatment and care of the involuntary patient under the authority or order to which the person is subject. (3) If subsection (1)(b) applies, the administrator of the forensic disability service is responsible for the care of the person under the forensic order (disability) to which the person is subject. 16 Purpose of limited community treatment The purpose of limited community treatment is to support a patient's recovery by transitioning the patient to living in the community with appropriate treatment and care. Part 4 Overview of Act 17 Purpose of pt 4 This part gives an overview of this Act. 18 Treatment authorities (1) A treatment authority is a lawful authority to provide treatment and care to a person who has a mental illness who does not have capacity to consent to be treated. (2) A treatment authority may be made for a person if an authorised doctor considers the treatment criteria apply to the person and there is no less restrictive way for the person to receive treatment and care for the person's mental illness, including, for example, under an advance health directive. (3) Key elements of the treatment criteria are that the person does not have capacity to consent to be treated and there is a risk of imminent serious harm to the person or others. (4) The category of a treatment authority is— (a) community, if the person's treatment and care needs can be met in the community; or (b) inpatient, if the person's treatment and care needs can be met only by being an inpatient. (5) If the category of a person's treatment authority is inpatient, the person may receive limited community treatment, for a period of not more than 7 consecutive days, if authorised under this Act. 19 Persons in custody A person in custody, including, for example, in a watch house or prison, may be transferred to an authorised mental health service for an assessment to decide if a treatment authority should be made for the person, or for treatment and care for the person's mental illness. 20 Psychiatrist reports (1) If a person subject to a treatment authority, forensic order or treatment support order is charged with a serious offence, the person, or someone on the person's behalf, may request that a psychiatrist prepare a report stating the psychiatrist's opinion about whether the person— (a) may have been of unsound mind at the time of the alleged commission of the serious offence; or (b) may be unfit for trial. (2) Also, if a person is charged with a serious offence, whether or not the person is subject to a treatment authority, forensic order or treatment support order, the chief psychiatrist may direct that a psychiatrist prepare a report about the matters mentioned in subsection (1) if the chief psychiatrist considers it is in the public interest. (3) A serious offence is an indictable offence, other than an offence that, under the Criminal Code, must be heard and decided summarily. 21 Mental Health Court (1) The Mental Health Court decides whether a person charged with a serious offence or other particular offences was of unsound mind or, for the offence of murder, of diminished responsibility, when the offence was allegedly committed or is unfit for trial. (2) If the court decides a person was of unsound mind when the offence was allegedly committed, or is unfit for trial, the court may make a forensic order or treatment support order for the person. (3) The forensic order may be a forensic order (mental health) or a forensic order (disability). (4) The court must also decide the category of the order and, if the category is inpatient, any limited community treatment for the person. (5) If the court decides a person is unfit for trial and the unfitness for trial is not permanent, the person's fitness for trial is periodically reviewed by the Mental Health Review Tribunal. 22 Magistrates Courts (1) A Magistrates Court may dismiss a complaint for a simple offence if the court is reasonably satisfied, on the balance of probabilities, that the person charged with the offence was, or appears to have been, of unsound mind when the offence was allegedly committed or is unfit for trial. (2) A Magistrates Court may also order that a person appearing before the court be examined by an authorised doctor to decide whether to make a treatment authority for the person or to make recommendations about the person's treatment and care. 23 Treatment and care of patients (1) The treatment and care of a patient is the responsibility of authorised doctors and administrators of authorised mental health services. (2) A person subject to a treatment authority must be regularly assessed to decide if the treatment authority should continue. (3) An authorised doctor may amend a person's treatment authority, forensic order or treatment support order by changing the category of the authority or order, its conditions, or the nature or extent of limited community treatment. (4) An amendment of an authority or order by an authorised doctor must be in accordance with decisions of the Mental Health Court and the Mental Health Review Tribunal. (5) To the extent practicable, decisions in relation to treatment and care for a patient must be made in consultation with the patient and the patient's family, carers and other support persons, subject to the patient's right to privacy. (6) The performance of electroconvulsive therapy and non-ablative neurosurgical procedures is regulated under this Act. (7) Psychosurgery is prohibited under this Act. 24 Mechanical restraint, seclusion, physical restraint and other practices (1) The use of mechanical restraint, seclusion, physical restraint, and other practices are regulated under this Act. (2) The use of mechanical restraint on an involuntary patient in an authorised mental health service must be approved by the chief psychiatrist. (3) Mechanical restraint and seclusion may be used only if there is no other reasonably practicable way to protect the patient or others from physical harm. 25 Rights of patients (1) This Act provides for a statement of rights for involuntary patients and other patients of authorised mental health services. (2) A person may appoint 1 or 2 nominated support persons to support the person under this Act if the person becomes an involuntary patient. (3) The health service chief executive responsible for a public sector mental health service must appoint 1 or more independent patient rights advisers to advise patients and their nominated support persons, family, carers and other support persons of their rights under this Act. 26 Chief psychiatrist (1) The chief psychiatrist protects the rights of patients in authorised mental health services. (2) The chief psychiatrist makes policies and practice guidelines that must be complied with by persons performing functions in authorised mental health services. (3) The chief psychiatrist has powers to investigate matters under this Act. 27 Information notices Victims of unlawful acts, close relatives of the victims, and other particular persons may apply to the chief psychiatrist to receive specific information about the person who committed the unlawful act, including when treatment in the community is authorised for the person. 28 Mental Health Review Tribunal (1) The Mental Health Review Tribunal reviews the following— (a) treatment authorities; (b) forensic orders; (c) treatment support orders; (d) the fitness for trial of particular persons; (e) the detention of minors in high security units. (2) The Mental Health Review Tribunal also hears applications for the following— (a) examination authorities; (b) the approval of regulated treatment; (c) the transfer of particular patients into and out of Queensland. (3) This Act states when periodic reviews of treatment authorities, forensic orders and treatment support orders must take place. (4) An involuntary patient, or an interested person for the patient, may apply for a review at any time. 29 Appeals This Act provides for— (a) an appeal to the Mental Health Review Tribunal against particular decisions of the chief psychiatrist or the administrator of an authorised mental health service; and (b) an appeal to the Mental Health Court against particular decisions of the Mental Health Review Tribunal; and (c) an appeal to the Court of Appeal against a decision of the Mental Health Court on a reference in relation to a person. Chapter 2 Making of treatment authorities after examination and assessment Part 1 Preliminary 30 Purpose of ch 2 The purpose of this chapter is to provide for— (a) matters relating to the examination and assessment of persons who may have a mental illness; and (b) the making of treatment authorities for persons who have a mental illness if— (i) the treatment criteria apply to the person; and (ii) there is no less restrictive way for the person to receive treatment and care for the person's mental illness. Note— See also chapter 3 for other matters in relation to persons in custody who have or may have a mental illness. Part 2 Examinations and recommendations for assessment Division 1 Examinations generally 31 Examination (1) A doctor or authorised mental health practitioner may examine a person to decide whether to make a recommendation for assessment for the person. (2) Without limiting subsection (1), the examination may be carried out— (a) if the person asks for, or consents to, the examination; or (b) under this Act or another Act providing for the examination, including, for example, under an examination authority or emergency examination authority. Note— See chapter 12, part 8 in relation to applications for examination authorities. (3) However, a doctor or authorised mental health practitioner must not examine a person subject to a forensic order (mental health), forensic order (Criminal Code) or treatment support order to decide whether to make a recommendation for assessment for the person. Division 2 Powers under examination authorities 32 Powers of doctor or authorised mental health practitioner (1) This section applies if a person is subject to an examination authority. (2) A doctor or authorised mental health practitioner may— (a) enter a place stated in the authority or another place in which the doctor or authorised mental health practitioner considers the person may be found, and any other place necessary for entry to either of those places, to find the person; and (b) examine the person, without the person's consent, at— (i) the place at which the person is found; or (ii) if the doctor or authorised mental health practitioner considers it clinically appropriate—an authorised mental health service or public sector health service facility; and (c) detain the person at the place at which the person is examined— (i) if the place is an authorised mental health service or public sector health service facility—for a period, of not more than 6 hours, starting when the person first attends at the service or facility for the examination; or (ii) otherwise—for a period, of not more than 1 hour, starting when the person is found at the place. (3) If subsection (2)(b)(ii) applies to the person, an authorised person may transport the person to the authorised mental health service or public sector health service facility for the examination. (4) The doctor or authorised mental health practitioner examining the person may extend, or further extend, the period under subsection (2)(c)(i) before it ends if the doctor or authorised mental health practitioner considers the extension is necessary to carry out or finish the examination. (5) An extension under subsection (4) may be for a period, of not more than 12 hours, starting when the person first attends at the service or facility for the examination. 33 Reasonable help and force to exercise powers A doctor or authorised mental health practitioner may exercise a power under section 32 with the help, and using the force, that is necessary and reasonable in the circumstances. 34 Asking police officer for help For performing a function or exercising a power under section 32 in relation to a person, a doctor or authorised mental health practitioner is a public official for the Police Powers and Responsibilities Act 2000. Note— For the powers of a police officer while helping a public official, see the Police Powers and Responsibilities Act 2000, section 16. 35 Action before exercising powers (1) Before performing a function or exercising a power under section 32 in relation to a person, a doctor or authorised mental health practitioner must do or make a reasonable attempt to do each of the following— (a) identify himself or herself to the person; (b) tell the person an examination authority has been made; (c) explain to the person, in general terms, the nature and effect of the authority; (d) give the person a copy of the authority, if requested; (e) if the doctor or health practitioner is entering a place—give the person an opportunity to allow the doctor or health practitioner immediate entry to the place without using force. (2) However, the doctor or authorised mental health practitioner need not comply with subsection (1) if the doctor or health practitioner believes on reasonable grounds that not complying with the subsection is required to ensure the execution of the authority is not frustrated. (3) The doctor or authorised mental health practitioner must give a copy of the authority to the person's nominated support persons, personal guardian or attorney, if requested. Division 3 Detention of particular persons to make recommendation for assessment 36 Powers of doctor or authorised mental health practitioner (1) This section applies if— (a) a person asks for, or consents to, an examination under section 31 by a doctor or authorised mental health practitioner in an authorised mental health service or public sector health service facility; and (b) after examining the person, the doctor or authorised mental health practitioner decides under section 39 to make a recommendation for assessment for the person; and (c) there is a risk the person will leave the authorised mental health service or public sector health service facility in which the person is being examined before the recommendation for assessment is made. (2) The doctor or authorised mental health practitioner may detain the person in the authorised mental health service or public sector health service facility for the period, of not more than 1 hour, reasonably necessary to make the recommendation for assessment. (3) The doctor or authorised mental health practitioner must record in the person's health records— (a) the reasons for detaining the person under subsection (2); and (b) the duration of the detention. 37 Reasonable help and force to exercise powers A doctor or authorised mental health practitioner may exercise a power under section 36 with the help, and using the force, that is necessary and reasonable in the circumstances. 38 Action before exercising powers Before exercising a power under section 36 in relation to a person, a doctor or authorised mental health practitioner must do or make a reasonable attempt to do the following— (a) identify himself or herself to the person; (b) tell the person a recommendation for assessment will be made; (c) explain to the person, in general terms, the nature and effect of a recommendation for assessment; (d) explain to the person that the person will be detained in the authorised mental health service or public sector health service facility for the period, of not more than 1 hour, reasonably necessary to make the recommendation for assessment; (e) give the person an opportunity to allow the doctor or health practitioner to make the recommendation for assessment without detaining the person. Division 4 Recommendations for assessment 39 Making recommendation for assessment (1) A doctor or authorised mental health practitioner may, after examining a person under section 31, make a recommendation for assessment for the person if satisfied— (a) the treatment criteria may apply to the person; and (b) there appears to be no less restrictive way for the person to receive treatment and care for the person's mental illness. (2) The recommendation for assessment must be made within 7 days after the examination. (3) The recommendation for assessment must be in the approved form. 40 Notice of making (1) As soon as practicable after deciding to make the recommendation for assessment, the doctor or authorised mental health practitioner must— (a) tell the person of the decision; and (b) explain to the person the effect of the recommendation; and (c) give the person a copy of the recommendation, if requested. (2) Subsection (1)(c) does not apply if the doctor or authorised mental health practitioner considers giving the person a copy may adversely affect the health and wellbeing of the person. (3) Also, the doctor or authorised mental health practitioner must give a copy of the recommendation to the person's nominated support persons, personal guardian or attorney, if requested. 41 Duration A recommendation for assessment is in force for 7 days after the day it is made. 42 Revocation (1) A doctor or authorised mental health practitioner who makes a recommendation for assessment for a person may revoke the recommendation at any time before the start of the assessment period for the person. (2) The doctor or authorised mental health practitioner may act under subsection (1) only if the doctor or health practitioner is no longer satisfied— (a) the treatment criteria may apply to the person; or (b) there appears to be no less restrictive way for the person to receive treatment and care for the person's mental illness. Part 3 Assessments 43 Making assessment (1) An authorised doctor may make an assessment of a person subject to a recommendation for assessment to decide— (a) whether the treatment criteria apply to the person; and (b) whether there is a less restrictive way for the person to receive treatment and care for the person's mental illness. (2) The authorised doctor who makes the assessment under subsection (1) must not be the authorised doctor who made the recommendation for assessment for the person. (3) Subsection (2) does not apply if the authorised doctor is an authorised doctor for an authorised mental health service (rural and remote) and is the only authorised doctor reasonably available to make the assessment. (4) For subsection (1)(b), the authorised doctor must take reasonable steps to find out whether there is a less restrictive way for the person to receive treatment and care for the person's mental illness, including, for example, by searching the person's health records to find out whether the person has made an advance health directive or has a personal guardian. 44 Where and how person may be assessed (1) A person subject to a recommendation for assessment may be assessed in— (a) an authorised mental health service; or (b) a public sector health service facility; or (c) another place considered clinically appropriate by the authorised doctor making the assessment. (2) An authorised person may transport the person to an authorised mental health service or a public sector health service facility for assessment. Notes— 1 For a person in custody subject to a recommendation for assessment, see section 65. 2 For the powers of an authorised person when detaining and transporting a person, see chapter 11, part 6, division 5. (3) An authorised doctor making an assessment of a person must discuss the assessment with the person. 45 Detention for assessment (1) If a person subject to a recommendation for assessment is to be assessed in an authorised mental health service or public sector health service facility, the person may be detained for assessment in the service or facility for a period of not more than 24 hours starting— (a) if the person is at the service or facility when the recommendation for assessment is made—when the recommendation is made; or (b) otherwise—when the person first attends at the service or facility for the assessment. (2) The authorised doctor making the assessment of the person may extend, or further extend, the period under subsection (1) before it ends to a period of not more than 72 hours after it starts if the authorised doctor considers the extension is necessary to carry out or finish the assessment. (3) If, at any time during the period mentioned in subsection (1), or extended under subsection (2), the authorised doctor making the assessment makes a decision on the assessment, the period for which the person may be detained for assessment ends. (4) The period under this section for which the person may be detained for assessment is the assessment period for the person. 46 Start of assessment period to be noted (1) If the assessment period for a person starts as mentioned in section 45(1)(a)— (a) the doctor or authorised mental health practitioner who made the recommendation for assessment for the person must make a note on the recommendation of the time when the assessment period starts; and (b) the note must be made when the recommendation for assessment is made. (2) If the assessment period for a person starts as mentioned in section 45(1)(b)— (a) an employee of the service or facility must make a note on the recommendation for assessment of the time when the assessment period starts; and (b) the note must be made as soon as practicable after the person is admitted to the service or facility. 47 Explaining decision not to make treatment authority (1) This section applies if, on making an assessment of a person subject to a recommendation for assessment, an authorised doctor decides— (a) the treatment criteria do not apply to the person; or (b) there is a less restrictive way for the person to receive treatment and care for the person's mental illness. (2) The authorised doctor must— (a) tell the person of the decision; and (b) explain its effect to the person; and (c) make a note on the recommendation for assessment of the decision not to make a treatment authority for the person. Part 4 Treatment authorities 48 Application of pt 4 This part applies if, on making an assessment of a person under part 3, the authorised doctor making the assessment is satisfied— (a) the treatment criteria apply to the person; and (b) there is no less restrictive way for the person to receive treatment and care for the person's mental illness. 49 Making treatment authority The authorised doctor may make an authority (a treatment authority) for the person. 50 Form of treatment authority (1) The treatment authority must— (a) be in the approved form; and (b) state the following— (i) the grounds on which the authorised doctor is satisfied the treatment criteria apply to the person; (ii) the authorised mental health service responsible for the person's treatment and care under the authority; (iii) the category of the authority; (iv) if the authorised doctor decides under section 51(1) that the category of the authority is inpatient—whether limited community treatment is authorised for the person; (v) any conditions the authorised doctor considers necessary for the person's treatment and care. Note— See schedule 3, definition condition. (2) For subsection (1)(b)(ii), if the authorised doctor decides under section 51(1) that the category of the authority is inpatient, the authorised mental health service responsible for the person's treatment and care must not be a high security unit without the prior written approval of the chief psychiatrist. 51 Category (1) If the authorised doctor makes a treatment authority for the person, and the person is not a classified patient, the authorised doctor must decide whether the category of the authority is— (a) inpatient; or (b) community. (2) In deciding the category of the authority, the authorised doctor must have regard to the relevant circumstances of the person. (3) However, the authorised doctor may decide the category of the authority is inpatient only if the authorised doctor considers, after having regard to the relevant circumstances of the person, that 1 or more of the following can not reasonably be met if the category of the authority is community— (a) the person's treatment and care needs; (b) the safety and welfare of the person; (c) the safety of others. (4) If the person is a classified patient, the category of the authority is inpatient. 52 Limited community treatment (1) If the authorised doctor decides under section 51(1) that the category of the treatment authority is inpatient, the authorised doctor must decide whether to authorise limited community treatment. Note— See chapter 7, part 6 for the authorisation of limited community treatment for classified patients. (2) The authorised doctor may decide to authorise limited community treatment only if satisfied limited community treatment is appropriate having regard to— (a) the relevant circumstances of the person; and (b) the purpose of limited community treatment. (3) If limited community treatment is authorised under this section, the person's treatment authority must state— (a) the nature and conditions of the limited community treatment; and (b) the period, of not more than 7 consecutive days, of the limited community treatment; and (c) the duration for which the authorisation is in force. Example for paragraphs (b) and (c)— limited community treatment may be authorised for a period of 1 day per week for a duration of 8 weeks 53 Nature and extent of treatment and care (1) The authorised doctor must decide the nature and extent of the treatment and care to be provided to the person under the treatment authority. (2) In deciding the nature and extent of the treatment and care, the authorised doctor must— (a) discuss the treatment and care to be provided with the person; and (b) have regard to the views, wishes and preferences of the person, to the extent they can be expressed, including, for example, in an advance health directive. 54 When advance health directive not followed (1) This section applies if— (a) the person has an advance health directive relating to the person's future treatment and care for a mental illness; and (b) either— (i) the authorised doctor decides to make a treatment authority despite the person having an advance health directive; or (ii) the nature and extent of the treatment and care decided by the authorised doctor under section 53 is inconsistent with the views, wishes and preferences of the person expressed in the advance health directive. (2) The authorised doctor must— (a) explain to the person the reasons why the authorised doctor made the decision mentioned in subsection (1)(b); and (b) record the reasons in the person's health records. 55 Notice of making (1) As soon as practicable after making a treatment authority for a person, the authorised doctor must— (a) tell the person of the decision; and (b) explain its effect to the person. (2) If the authorised doctor is a psychiatrist, the administrator of the person's treating health service must, within 7 days after the treatment authority is made— (a) give the person a copy of the authority; and (b) give the person's nominated support persons, personal guardian or attorney a copy of the authority, if requested; and (c) give the tribunal written notice of its making. (3) If the authorised doctor is not a psychiatrist, the administrator of the person's treating health service must— (a) give the person a copy of the authority, if requested; and (b) give the person's nominated support persons, personal guardian or attorney a copy of the authority, if requested. 56 Review of treatment authority if not made by psychiatrist (1) This section applies if a treatment authority is made by an authorised doctor who is not a psychiatrist. (2) An authorised psychiatrist must review the treatment authority and decide whether— (a) to confirm the treatment authority, with or without amendment; or (b) to revoke the treatment authority. (3) The review must happen— (a) within 3 days (the review period) after the treatment authority is made; or (b) if the person subject to the treatment authority is a patient of an authorised mental health service (rural and remote) and it is not reasonably practicable to complete the review within 3 days—within 7 days (also the review period) after the treatment authority is made. (4) An authorised doctor may give the person subject to the treatment authority a written notice directing the person to attend for the review at a stated authorised mental health service or public sector health service facility on a stated day within the review period. Note— See chapter 11, part 6, division 3 for the powers that may be used in relation to a person who does not comply with a direction under subsection (4). (5) The person subject to the treatment authority may be detained for the review in the stated service or facility for a period of not more than 6 hours starting when the person attends for the review at the service or facility. (6) A review of a treatment authority does not affect the operation of the treatment authority before a decision is made to confirm or revoke it under subsection (2). 57 Decision on review (1) On a review under section 56 of a treatment authority, the authorised psychiatrist may decide to confirm the treatment authority only if satisfied— (a) the treatment criteria apply to the person; and (b) there is no less restrictive way for the person to receive treatment and care for the person's mental illness. (2) If the authorised psychiatrist decides to confirm the treatment authority, the authorised psychiatrist must— (a) decide whether to amend the treatment authority in any of the following ways— (i) to change the category of the authority; (ii) to authorise or revoke, or change the nature or extent of, limited community treatment; (iii) to impose a condition on, or change a condition of, the authority; and (b) decide the nature and extent of the treatment and care to be provided to the person under the treatment authority. (3) In deciding— (a) whether to change the category of the authority, section 51 applies to the authorised psychiatrist as if a reference in the section to an authorised doctor were a reference to the authorised psychiatrist; and (b) whether to authorise or revoke, or change the nature or extent of, limited community treatment, section 52 applies to the authorised psychiatrist as if a reference in the section to an authorised doctor were a reference to the authorised psychiatrist; and (c) the nature and extent of the treatment and care to be provided to the person, section 53 applies to the authorised psychiatrist as if a reference in the section to an authorised doctor were a reference to the authorised psychiatrist. (4) If, after reviewing the treatment authority, the authorised psychiatrist is not satisfied of the matters mentioned in subsection (1), the authorised psychiatrist must decide to revoke the treatment authority. (5) The authorised psychiatrist must make a note on the treatment authority of the decision on the review. (6) If a treatment authority made by an authorised doctor who is not an authorised psychiatrist is not confirmed under subsection (1) or revoked under subsection (4) within the review period for the treatment authority, the treatment authority is revoked at the end of the review period. (7) However, subsection (6) does not apply if the person does not attend for the review as directed under section 56(4). 58 Notice about review (1) As soon as practicable after making a decision under section 57 on a review of a treatment authority for a person, the authorised psychiatrist must— (a) tell the person of the decision; and (b) explain its effect to the person. (2) If the decision on the review is to confirm the treatment authority, the administrator of the person's treating health service must, within 7 days after the decision— (a) give the person a copy of the authority; and (b) give the person's nominated support persons, personal guardian or attorney a copy of the authority, if requested; and (c) give the tribunal written notice of the decision. 59 Date for first assessment (1) If an authorised doctor makes a treatment authority for a person, the authorised doctor must decide and record in the person's health records a date for the first regular assessment of the patient under section 205. (2) The date for the assessment must be not later than 3 months after the day the treatment authority is made. 60 Relationship with forensic order (disability) If a treatment authority for a person is inconsistent with a forensic order (disability) for the person, the forensic order (disability) prevails to the extent of the inconsistency. Chapter 3 Persons in custody Part 1 Preliminary 61 Purpose of ch 3 The purpose of this chapter is to provide for— (a) the transport of persons in custody to an inpatient unit of an authorised mental health service— (i) for assessment under chapter 2, part 3; or (ii) to receive treatment and care under this Act for the person's mental illness; and (b) persons subject to examination orders or court examination orders remaining in an inpatient unit of an authorised mental health service to receive treatment and care under this Act for the person's mental illness; and (c) particular requirements that apply when persons become classified patients; and (d) the return to custody, or release from detention in an authorised mental health service, of classified patients. 62 Definitions for ch 3 In this chapter— administrator consent, for a person in custody, means consent given by the administrator of an authorised mental health service under section 69 for the transport of the person. classified patient see section 64(1). classified patient (involuntary) see section 64(2). classified patient (voluntary) see section 64(3). custodian consent, for a person in custody, means consent given under section 71 for the transport of the person. notice event see section 81(1). person in custody see section 63. transfer recommendation see section 68(2). 63 Meaning of person in custody (1) A person in custody is a person who is in lawful custody— (a) on a charge of an offence or awaiting sentence on conviction for an offence; or (b) without charge under— (i) an Act of the State, other than this Act; or (ii) an Act of the Commonwealth; or (c) serving a sentence of imprisonment, or period of detention under a court order, for an offence and who is not released on parole. (2) To remove any doubt, it is declared that an offence mentioned in subsection (1) includes an offence against a law of the Commonwealth. Note— See the Judiciary Act 1903 (Cwlth), section 68 (Jurisdiction of State and Territory courts in criminal cases). 64 Meaning of classified patient (1) A classified patient is— (a) a classified patient (involuntary); or (b) a classified patient (voluntary). (2) A classified patient (involuntary) is— (a) a person who is— (i) subject to any of the following— (A) a recommendation for assessment; (B) a treatment authority; (C) a forensic order (mental health); (D) a treatment support order; and (ii) transported under part 2 from a place of custody to an inpatient unit of an authorised mental health service; and (iii) admitted to the inpatient unit of the authorised mental health service; or (b) a person who— (i) is subject to any of the following— (A) a treatment authority; (B) a forensic order (mental health); (C) a treatment support order; and (ii) remains in an inpatient unit of an authorised mental health service under section 74. (3) A classified patient (voluntary) is— (a) a person who— (i) is transported under part 2 from a place of custody to an inpatient unit of an authorised mental health service; and (ii) is admitted to the inpatient unit of the authorised mental health service; and (iii) consents under section 67 or 79 to receiving treatment and care for the person's mental illness in the inpatient unit of the authorised mental health service; or (b) a person who— (i) remains in an inpatient unit of an authorised mental health service under section 74; and (ii) consents under section 74 to receiving treatment and care for the person's mental illness in the inpatient unit of the authorised mental health service. Part 2 Transport of persons in custody to authorised mental health services 65 Transport for assessment (1) This section applies to a person in custody who is subject to a recommendation for assessment. (2) The person may be transported by an authorised person from the person's place of custody to an inpatient unit of an authorised mental health service for assessment under chapter 2, part 3. (3) The authorised person may transport the person only if both of the following have been made for the person— (a) an administrator consent; (b) a custodian consent. (4) Despite section 44(1) and (2), the person may be transported only to, and assessed only in, an inpatient unit of an authorised mental health service. 66 Transport for treatment and care under treatment authority or particular orders (1) This section applies to a person in custody who is subject to a treatment authority, forensic order (mental health) or treatment support order. (2) The person may be transported by an authorised person from the person's place of custody to an inpatient unit of an authorised mental health service to receive treatment and care for the person's mental illness. (3) The authorised person may transport the person only if all of the following have been made for the person— (a) a transfer recommendation; (b) an administrator consent; (c) a custodian consent. (4) When the person is admitted to the inpatient unit of the authorised mental health service— (a) if the category of the person's treatment authority, forensic order (mental health) or treatment support order is community—the category is changed to inpatient; and (b) if limited community treatment has been authorised for the person by an authorised doctor under section 52, 57, 209, 212 or 216—the authorisation is revoked; and (c) if limited community treatment has been ordered or approved by the Mental Health Court or tribunal—the order or approval is of no effect while the person is receiving treatment and care for the person's mental illness in the inpatient unit. 67 Transport for treatment and care by consent (1) This section applies to a person in custody who— (a) is not subject to a treatment authority, forensic order (mental health) or treatment support order; and (b) consents to receiving treatment and care for the person's mental illness in an inpatient unit of an authorised mental health service. (2) The person may be transported by an authorised person from the person's place of custody to an inpatient unit of an authorised mental health service to receive treatment and care for the person's mental illness. (3) The authorised person may transport the person only if all of the following have been made for the person— (a) a transfer recommendation; (b) an administrator consent; (c) a custodian consent. (4) The person may withdraw the person's consent under subsection (1)(b) at any time. Note— If the person withdraws consent, see sections 80 and 83. (5) Subsection (4) does not prevent a treatment authority being made under chapter 2 for the person. 68 Transfer recommendation (1) This section applies to a person in custody who— (a) is subject to a treatment authority, forensic order (mental health) or treatment support order; or (b) consents to receiving treatment and care for the person's mental illness in an inpatient unit of an authorised mental health service. (2) A doctor or authorised mental health practitioner may, in the approved form, make a recommendation (a transfer recommendation) for the person to be transported by an authorised person from the person's place of custody to an inpatient unit of an authorised mental health service to receive treatment and care for the person's mental illness. (3) The doctor or authorised mental health practitioner may make the transfer recommendation only if satisfied— (a) for a person who is not subject to a treatment authority, forensic order (mental health) or treatment support order—the person may have a mental illness; and (b) it is clinically appropriate for the person to receive treatment and care for the person's mental illness in an authorised mental health service. (4) As soon as practicable after making the transfer recommendation, the doctor or authorised mental health practitioner must— (a) tell the person of the making of the transfer recommendation; and (b) explain its effect to the person; and (c) give the person a copy of the transfer recommendation, if requested. (5) Subsection (4)(c) does not apply if the doctor or authorised mental health practitioner considers giving the copy may adversely affect the health and wellbeing of the person. (6) Also, the doctor or authorised mental health practitioner must give a copy of the transfer recommendation to the person's nominated support persons, personal guardian or attorney, if requested. 69 Administrator consent (1) This section applies to a person in custody who— (a) is subject to a recommendation for assessment; or (b) is subject to a treatment authority, forensic order (mental health) or treatment support order; or (c) consents to receiving treatment and care for the person's mental illness in an inpatient unit of an authorised mental health service. (2) The administrator of an authorised mental health service may, in the approved form, consent to the person in custody being transported by an authorised person from the person's place of custody to an inpatient unit of the authorised mental health service— (a) for a person mentioned in subsection (1)(a)—for assessment under chapter 2, part 3; or (b) for a person mentioned in subsection (1)(b) or (c)—to receive treatment and care for the person's mental illness. (3) The administrator may consent only if satisfied— (a) the authorised mental health service has capacity— (i) for a person mentioned in subsection (1)(a)—to carry out the assessment; or (ii) for a person mentioned in subsection (1)(b) or (c)—to provide treatment and care for the person's mental illness; and (b) for an authorised mental health service that is not a high security unit—that carrying out the assessment, or providing the treatment and care, would not pose an unreasonable risk to the safety of the person or others having regard to— (i) the person's mental state and psychiatric history; and (ii) the person's treatment and care needs; and (iii) the security requirements for the person. 70 Prior approval of chief psychiatrist for transport of minor to high security unit (1) If a person in custody mentioned in section 69(1) is a minor, the administrator of an authorised mental health service that is a high security unit must not give consent under section 69 for the transport of the minor from the minor's place of custody to the high security unit unless the chief psychiatrist has given prior written approval of the giving of the consent. (2) In deciding whether to give the approval, the chief psychiatrist must have regard to the following— (a) the minor's mental state and psychiatric history; (b) the minor's treatment and care needs; (c) the security requirements for the minor. (3) As soon as practicable after deciding to give the approval, the chief psychiatrist must give a copy of the written approval to the administrator. 71 Custodian consent (1) This section applies to a person in custody who— (a) is subject to a recommendation for assessment; or (b) is subject to a treatment authority, forensic order (mental health) or treatment support order; or (c) consents to receiving treatment and care for the person's mental illness in an inpatient unit of an authorised mental health service. (2) The custodian of the person in custody must, in the approved form, consent to the person being transported by an authorised person from the person's place of custody to an inpatient unit of an authorised mental health service— (a) for a person mentioned in subsection (1)(a)—for assessment under chapter 2, part 3; or (b) for a person mentioned in subsection (1)(b) or (c)—to receive treatment and care for the person's mental illness. (3) However, subsection (2) does not apply if the custodian is satisfied that carrying