Tasmania: Mental Health Act 2013 (Tas)

Mental Health Act 2013 An Act to provide for the assessment and treatment of persons with mental illness, to repeal the Mental Health Act 1996 , to repeal and rescind some related legislation and for related purposes [Royal Assent 13 May 2013] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: Chapter 1 - Preliminary PART 1 - Short Title and Commencement 1. Short title This Act may be cited as the Mental Health Act 2013 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed but, if not all of the provisions have commenced before 17 February 2014, the provisions of this Act that have not commenced before that date commence on that date. PART 2 - Interpretation 3. Interpretation (1) In this Act, unless the contrary intention appears – Aboriginal person has the same meaning as in the Aboriginal Lands Act 1995 ; adult means a person who has attained the age of 18 years; ambulance officer means an officer of the Ambulance Service within the meaning of the Ambulance Service Act 1982 ; appropriate record, of any matter, means a record of the matter that sets out relevant particulars and circumstances; approved assessment centre means an assessment centre that is approved under section 140 ; approved facility means an approved hospital, an approved assessment centre or a secure mental health unit; approved form means a form approved by the Chief Psychiatrist; approved hospital means a hospital approved under section 140 ; approved medical practitioner – see section 138 ; approved nurse – see section 138 ; assessment criteria means the criteria set out in section 25 ; assessment order means an assessment order made under Division 1 of Part 3 of Chapter 2 ; authorised person – see section 109 ; chemical restraint means medication given primarily to control a person's behaviour, not to treat a mental illness or physical condition; Chief Psychiatrist means the person for the time being holding or acting in the office referred to in section 143 ; child means a person who has not attained the age of 18 years; clinical guidelines – see section 151 ; clinical reasons, for granting any patient a leave of absence under this Act, include – (a) facilitating the patient's rehabilitation or reintegration into the community; and (b) furthering the patient's treatment; and (c) reasons deemed appropriate by the person authorised to grant the leave; communication aid means any electronic or other device used to assist a person to communicate; controlling authority means – (a) for an approved facility run by or on behalf of the State, the Secretary; and (b) for any other approved facility, the person for the time being in overall charge of the day-to-day clinical management of that facility; custody and escort provisions means the custody and escort provisions in Schedule 2 ; decision-making capacity – see section 7 ; Deputy Public Guardian means the Deputy Public Guardian under the Guardianship and Administration Act 1995 ; Director means the Director of Corrective Services appointed under the Corrections Act 1997 ; disability means any restriction or lack of ability to perform an activity in a normal manner (being a restriction or lack of ability arising from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function); eligible person means a person registered in relation to a particular forensic patient in the Eligible Persons Register; Eligible Persons Register means the register kept under section 87A of the Corrections Act 1997 ; financial year means the 12-month period ending on 30 June in any year; forensic patient means a person admitted to an SMHU under section 68 and not discharged from the SMHU; general health care means medical, dental or other health treatment not primarily aimed at the treatment or alleviation of mental illness; government premises means premises run by or on behalf of the State; guardian has the same meaning as in the Guardianship and Administration Act 1995 ; Health Complaints Commissioner means the person for the time being holding or acting in the appointment referred to in section 5 of the Health Complaints Act 1995 ; health professional means a person registered under the Health Practitioner Regulation National Law (Tasmania) in any profession; informed consent, to assessment or treatment – see sections 8 and 9 ; involuntary patient means a person who is subject to an assessment order or treatment order; make, a record, includes causing the record to be made; mechanical restraint means a device that controls a person's freedom of movement; member has the same meaning as in the Tasmanian Civil and Administrative Tribunal Act 2020 ; mental health officer means a person who, under section 139 , is a mental health officer for the provision in which the expression is used; mental health service delivery principles – see section 15 and Schedule 1 ; mental illness – see section 4 ; MHO means mental health officer; notice means written notice; nurse means a registered nurse or enrolled nurse; Official Visitor means a person for the time being holding an appointment under section 155(2) ; parent, of a child, includes – (a) a person who – (i) in respect of the child, has all of the duties, powers, responsibilities and authority which, by law, parents have in relation to their children; or (ii) is the legal guardian of the child; or (iii) has the legal custody of the child; and (b) if there is no person who falls within paragraph (a) in respect of the child, a person who – (i) generally acts as a parent of the child; and (ii) has acted as a parent of the child for a significant length of time; and (iii) is recognised by the child as a parental figure for the child; patient means, according to the context, a voluntary inpatient, involuntary patient or forensic patient and, in Part 6 of Chapter 2 , includes a voluntary patient; personal reasons for granting any patient a leave of absence under this Act include – (a) visiting a sick or dying relative or close friend; and (b) attending the funeral of a relative or close friend; and (c) attending a wedding or graduation of a relative or close friend; and (d) attending a family occasion of special importance; and (e) if the patient is an Aboriginal person, attending an event of cultural or spiritual significance to Aboriginal persons; and (f) attending a special religious event or service; and (g) attending a reunion or commemoration; physical aids includes – (a) spectacles and hearing aids; and (b) prostheses; and (c) inhalers, ventilators and oxygen apparatuses; and (d) crutches, wheelchairs and walking frames; physical restraint means bodily force that controls a person's freedom of movement; place, a document on a clinical record, includes causing the document to be placed on the clinical record; premises includes a part of the premises; President has the same meaning as in the Tasmanian Civil and Administrative Tribunal Act 2020 ; President of the Tribunal means the President; Principal Official Visitor means the person for the time being holding an appointment under section 155(1) ; prison means – (a) a prison within the meaning of the Corrections Act 1997 ; or (b) a detention centre within the meaning of the Youth Justice Act 1997 ; prisoner means – (a) a prisoner or detainee within the meaning of the Corrections Act 1997 ; or (b) a person serving a sentence of detention imposed under the Youth Justice Act 1997 or subject to an order under that Act remanding the person to a detention centre; privileged caller – see section 98 ; privileged correspondent – see section 98 ; privileged visitor – see section 98 ; proper matter includes the objects of this Act, the mental health service delivery principles set out in Schedule 1 , Tribunal guidelines, clinical guidelines and standing orders; psychiatrist means a medical practitioner who – (a) is a Fellow of the Royal Australian and New Zealand College of Psychiatrists; or (b) holds specialist registration in the specialty of psychiatry; or (c) holds limited registration that enables the medical practitioner to practise the specialty of psychiatry; Public Guardian means the Public Guardian under the Guardianship and Administration Act 1995 ; record includes an electronic record; Registrar has the same meaning as in the Tasmanian Civil and Administrative Tribunal Act 2020 ; regulations means the regulations made and in force under this Act; representative, of a patient or prospective patient, means – (a) the patient's guardian; or (b) the patient's Australian lawyer; or (c) if the patient is a child and raises no objection, a parent of the patient; or (d) any other person nominated by the patient to represent his or her interests; responsibility means a power, function or duty; responsible Minister means the Minister to whom the administration of this Act, except Parts 2 and 3 of Chapter 3 , and Schedules 3 , 4 and 5 , is assigned; restraint means any form of chemical, mechanical or physical restraint; restriction order means a restriction order made under the Criminal Justice (Mental Impairment) Act 1999 or Sentencing Act 1997 ; review means a review for the purposes of, or required under, this Act; seclusion means the deliberate confinement of an involuntary patient or forensic patient, alone, in a room or area that the patient cannot freely exit; Secretary means the Secretary of the Department; Secretary (Corrections) means the Secretary of the responsible Department in relation to the Corrections Act 1997 ; Secretary (Youth Justice) means the Secretary of the responsible Department in relation to the Youth Justice Act 1997 ; secure institution – see section 141 ; secure mental health unit means a secure mental health unit approved for this Act under section 140 ; sentence of imprisonment includes a sentence of detention imposed under the Youth Justice Act 1997 ; setting, of any assessment or treatment, means its setting in terms of whether the assessment or treatment occurs or is given in the community or in an approved facility or by some combination thereof; SMHU means secure mental health unit; special psychiatric treatment – see section 122(1) ; standing orders – see section 152 ; State includes Territory; statement of rights means a written statement that sets out and succinctly explains, in plain language, what rights a patient or prospective patient has in the particular circumstances under this Act in which he or she is required to be given such a statement; statutory rule means a statutory rule within the meaning of the Rules Publication Act 1953 ; supervision order means a supervision order made under the Criminal Justice (Mental Impairment) Act 1999 or Sentencing Act 1997 ; support person, of a patient or prospective patient, means a person who provides the patient with ongoing care or support; temporarily detain, a person for the purposes of assessment – see Part 2 of chapter 2 ; treating medical practitioner means the medical practitioner who is responsible for a patient's treatment or proposed treatment; treatment – see section 6 ; treatment criteria means the criteria set out in section 40 ; treatment order means a treatment order made under Division 2 of Part 3 of Chapter 2 , and includes an interim treatment order made under section 38 ; Tribunal means the Tasmanian Civil and Administrative Tribunal; Tribunal guidelines –see section 169 ; Tribunal staff member means a State Servant whose services are made available to the Tribunal pursuant to section 56 of the Tasmanian Civil and Administrative Tribunal Act 2020 ; urgent circumstances treatment – see section 55 and section 87 ; varying, the conditions of any leave, includes adding new conditions and substituting or revoking existing conditions; voluntary inpatient, of an approved facility, means a person who – (a) has been admitted to the facility voluntarily to receive treatment for a mental illness; and (b) is receiving that treatment on the basis of informed consent; voluntary patient means a person who is not an involuntary patient or a forensic patient; youth detainee means a person who is – (a) serving a sentence of detention imposed under the Youth Justice Act 1997 that would, if the person were not a forensic patient, be served in a detention centre; or (b) subject to an order under the Youth Justice Act 1997 or another Act remanding the person to a detention centre. (2) . . . . . . . . (3) A note in the text of this Act does not form part of this Act. 4. Meaning of mental illness (1) For the purposes of this Act – (a) a person is taken to have a mental illness if he or she experiences, temporarily, repeatedly or continually – (i) a serious impairment of thought (which may include delusions); or (ii) a serious impairment of mood, volition, perception or cognition; and (b) nothing prevents the serious or permanent physiological, biochemical or psychological effects of alcohol use or drug-taking from being regarded as an indication that a person has a mental illness. (2) However, under this Act, a person is not to be taken to have a mental illness by reason only of the person's – (a) current or past expression of, or failure or refusal to express, a particular political opinion or belief; or (b) current or past expression of, or failure or refusal to express, a particular religious opinion or belief; or (c) current or past expression of, or failure or refusal to express, a particular philosophy; or (d) current or past expression of, or failure or refusal to express, a particular – (i) sexual preference or orientation; or (ii) gender identity or expression; or (e) current or past engagement in, or failure or refusal to engage in, a particular political or religious activity; or (f) current or past engagement in a particular sexual activity or sexual promiscuity; or (g) current or past engagement in illegal conduct; or (h) current or past engagement in an antisocial activity; or (i) particular economic or social status; or (j) membership of a particular cultural or racial group; or (k) intoxication (however induced); or (l) intellectual or physical disability; or (m) acquired brain injury; or (n) dementia; or (o) temporary unconsciousness. 5. Meaning of assessment For the purposes of this Act, assessment is the clinical process involved in diagnosing the condition of a person's mental health and, where necessary, identifying the most appropriate treatment. 6. Meaning of treatment (1) For the purposes of this Act, treatment is the professional intervention necessary to – (a) prevent or remedy mental illness; or (b) manage and alleviate, where possible, the ill effects of mental illness; or (c) reduce the risks that persons with mental illness may, on that account, pose to themselves or others; or (d) assess a person's mental state. (2) However, this professional intervention does not extend to – (a) special psychiatric treatment; or (b) a termination of pregnancy; or (c) a procedure that could render a person permanently infertile; or (d) the removal, for transplantation, of human tissue that cannot thereafter be replaced by natural processes of growth or repair; or (e) general health care. (3) For the purposes of this Act, treatment does not include seclusion, chemical restraint, mechanical restraint or physical restraint. 7. Capacity of adults and children to make decisions about their own assessment and treatment (1) For the purposes of this Act, an adult is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) unless a person or body considering that capacity under this Act is satisfied that – (a) he or she is unable to make the decision because of an impairment of, or disturbance in, the functioning of the mind or brain; and (b) he or she is unable to – (i) understand information relevant to the decision; or (ii) retain information relevant to the decision; or (iii) use or weigh information relevant to the decision; or (iv) communicate the decision (whether by speech, gesture or other means). (2) For the purposes of this Act, a child is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) only if a person or body considering that capacity under this Act is satisfied that – (a) the child is sufficiently mature to make the d ecision; and (b) notwithstanding any impairment of, or disturbance in, the functioning of the child's mind or brain, the child is able to – (i) understand information relevant to the decision; and (ii) retain information relevant to the decision; and (iii) use or weigh information relevant to the decision; and (iv) communicate the decision (whether by speech, gesture or other means). (3) For the purposes of this section – (a) an adult or child may be taken to understand information relevant to a decision if it reasonably appears that he or she is able to understand an explanation of the nature and consequences of the decision given in a way that is appropriate to his or her circumstances (whether by words, signs or other means); and (b) an adult or child may be taken to be able to retain information relevant to a decision even if he or she may only be able to retain the information briefly. (4) In this section – information relevant to a decision includes information on the consequences of – (a) making the decision one way or the other; and (b) deferring the making of the decision; and (c) failing to make the decision. 8. Meaning of informed consent to assessment or treatment (1) For the purposes of this Act, a medical practitioner may regard a person's consent to an assessment, treatment or special psychiatric treatment as being informed consent if satisfied that – (a) the person, at the time of giving the consent, has decision-making capacity; and (b) the person has had a reasonable opportunity to make a considered decision whether or not to give the consent; and (c) the person, having had that opportunity, has given the consent freely by some positive means, not by mere acquiescence. (2) For the purposes of subsection (1)(b) in its application to a treatment or special psychiatric treatment, a person may be taken to have had the requisite reasonable opportunity if – (a) the treating medical practitioner and the person have discussed the treatment or special psychiatric treatment; and (b) in those discussions the person was given an opportunity to disclose his or her priorities, expectations and fears about the treatment or special psychiatric treatment; and (c) following those discussions the person was given – (i) a clear and candid explanation of the advantages and disadvantages of the treatment or special psychiatric treatment, including information about the associated risks and common or expected side effects; and (ii) where applicable, a clear and candid explanation of the alternative treatments that may be available, including information about the associated advantages and disadvantages; and (iii) clear and candid answers to any questions the person may have had; and (iv) any other information that was considered, by the treating medical practitioner or person, to be of relevant importance and likely to influence the person's decision-making with regard to the treatment or special psychiatric treatment; and (v) a reasonable opportunity to – (A) obtain independent medical or other advice; and (B) consider the advantages and disadvantages of giving the consent. (3) For the purposes of subsection (1)(c) , a person is taken to have given consent freely if the consent is given without coercion, pressure or undue influence, whether from another person or a medication. (4) For the purposes of subsection (2) , the information, explanations or answers must have been in a language and form that the person could understand. (5) Nothing in this Act is to be taken to prevent a person with decision-making capacity from withdrawing his or her consent to an assessment, treatment or special psychiatric treatment before the assessment, treatment or special psychiatric treatment is made or provided and, if he or she does so, he or she is not to be taken to have given informed consent to the assessment, treatment or special psychiatric treatment. 9. Informed consent for child who lacks capacity to decide on own assessment or treatment (1) For the purposes of this Act, informed consent for the assessment or treatment of a child who lacks decision-making capacity may be given by a parent of the child. (2) To avoid doubt, for subsection (1) the informed consent of one parent is sufficient. (3) Informed consent for the assessment or treatment of a child who lacks decision-making capacity – (a) may be withdrawn, at any time, by – (i) the parent who gave the informed consent; or (ii) if the parent who gave the informed consent is unable to withdraw the consent or has ceased to be a parent of the child, another parent of the child; and (b) if practicable to do so, is to be withdrawn, in accordance with paragraph (a) , before the assessment is made or the treatment is provided. (4) Nothing in this Act is to be taken to prevent the withdrawal, under subsection (3) , of consent to an assessment or a treatment before the assessment is made or the treatment is provided. (5) For the avoidance of doubt, if a parent of a child withdraws consent, under subsection (3) , to the assessment or treatment of the child – (a) informed consent is not to be taken to have been given to the assessment or treatment of the child if the consent is withdrawn before the assessment, or the treatment, of the child; and (b) if the informed consent is withdrawn during an assessment or treatment, the assessment or treatment is to be stopped as soon as it is medically safe to do so; and (c) nothing in this Act prevents another parent of the child from providing informed consent, in accordance with this Act, for the same assessment or treatment of the child. 10. Identifying representatives of patients, &c. (1) Where this Act requires a notice or other document to be given to a representative or support person of a patient, it means that the document is to be given to someone who is, to the knowledge of the person who has to comply with the requirement, such a representative or support person. (2) For the purposes of subsection (1) , the requisite standard of knowledge is knowledge that is already to hand or readily discoverable on reasonable inquiry, not knowledge that might only be discoverable after arduous or prolonged inquiry. 11. Timing of actions (1) Where this Act requires an action to be taken, then, unless the contrary intention appears, the action must be taken as soon as practicable. (2) For the purposes of subsection (1) – (a) it is irrelevant whether the requirement is mandatory or directory; and (b) it is irrelevant how the requirement is expressed or described. PART 3 - Objects, Status and Scope of Act 12. Objects of Act The objects of this Act are as follows: (a) to provide for the assessment and treatment of persons with mental illnesses; (b) to provide for appropriate oversight and safeguards in relation to such assessment and treatment; (c) to give everyone involved with such assessment and treatment clear direction as to their rights and responsibilities; (d) to provide for such assessment and treatment to be given in the least restrictive setting consistent with clinical need, legal and judicial constraints, public safety and patient health, safety and welfare; (e) to promote voluntary over involuntary assessment and treatment and the making of free and informed assessment and treatment choices; (f) to provide for all incidental and ancillary matters. 13. Status of Act This Act is intended to be the primary source of authority for the involuntary assessment and treatment of persons with mental illness in this State. 14. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. Chapter 2 - Assessment, Treatment and Management of patients PART 1 - Rights and Policies 15. Mental health service delivery principles (1) All persons exercising responsibilities under this Act, including but not limited to the performance of functions and the exercise of powers, must have regard to the mental health service delivery principles set out in Schedule 1 when exercising those responsibilities. (2) Despite subsection (1) , a person exercising responsibilities under this Act – (a) is not required to make a distinct note, or a formal or informal record, of the mental health service delivery principles taken into account when exercising the responsibilities; and (b) may place one mental health service delivery principle above another when exercising the responsibilities, if the person considers it reasonable to do so in the circumstances. 15A. Rights of patients (1) Each person receiving an assessment or treatment under this Act has the following rights: (a) the right to receive the assessment, or treatment, under this Act in accordance with the mental health service delivery principles; (b) the right to have any restriction on, or interference with, the person's dignity, rights and freedoms to be limited as much as possible when taking into account the person's health and safety and the safety of others; (c) the right to promote, and make prominent, the person's decision-making capacity, and to respect the person's wishes, to the maximum extent possible when taking into account the person's health and safety and the safety of others; (d) the right to be given clear, accurate and timely information about – (i) the person's rights as a patient; and (ii) the person's diagnosis and treatment. (2) In addition to the rights under subsection (1) , a person who is a forensic patient, or involuntary patient, also has the following rights while admitted to an approved facility: (a) the right to be detained in a manner that is appropriate in respect of the patient's assessment, treatment or care requirements; (b) the right to be given clear and timely information about the rules, and conditions, governing the patient's conduct in the relevant approved facility, including any relevant context in respect of a change in those rules or conditions while the patient is at the relevant approved facility; (c) the right to have access to current information about local, national and world events; (d) the right to ask for a leave of absence from the relevant approved facility; (e) the right to seek legal advice and have contact with, including the right to correspond privately with, Official Visitors and the patient's representatives and support persons; (f) the right to be provided with general health care; (g) the right not to be unreasonably deprived of any necessary physical or communication aids; (h) the right – (i) to wear suitable clothing of the patient's own, if appropriate in the relevant approved facility; or (ii) to be provided with basic clean clothing that is appropriate to the climate and the patient's size; (i) the right to be provided with – (i) food that is adequate to maintain the health and wellbeing of the patient; and (ii) a diet that has reasonable variation; and (iii) special dietary food, if the Chief Psychiatrist is satisfied that it is necessary for medical reasons, the patient's religious beliefs or the patient's dietary practices; (j) the right to adequate toilet and sanitary arrangements; (k) the right to adequate light and ventilation; (l) the right – (i) to practise a religion, or custom, in accordance with the patient's religious or cultural beliefs; and (ii) if consistent with the management and security requirements of the relevant approved facility – (A) to join with other patients in practising the religion or custom; and (B) to possess such articles as are reasonably necessary for the practice of the religion or custom; (m) the right to ask for, and receive, such reasonable help from the staff of the relevant approved facility so as to enable the patient to enjoy the rights specified in this section. 16. Circumstances in which treatment may be given (1) The following policy governs the treatment of voluntary patients under this Act: (a) a voluntary patient may be given treatment with informed consent, either as a hospital inpatient or in the community; (b) . . . . . . . . (c) a voluntary patient may be given special psychiatric treatment if – (i) the treatment is authorised by the Tribunal under Part 6 ; and (ii) where the treatment is psychosurgery or a treatment that requires informed consent under that Part, informed consent has been given for the treatment; (d) a voluntary patient can never be given special psychiatric treatment except as provided by paragraph (c) . (2) The following policy governs the treatment of involuntary patients under this Act who are not forensic patients or involuntary patients to whom section 66 applies: (a) an involuntary patient may be given treatment – (i) with informed consent; or (ii) if the treatment is authorised by a treatment order; or (iii) if the treatment is urgent circumstances treatment, the treatment is authorised under section 55 ; (b) . . . . . . . . (c) an involuntary patient may be given special psychiatric treatment if – (i) the special psychiatric treatment is authorised by the Tribunal under Part 6 ; and (ii) where the treatment is psychosurgery or a treatment that requires informed consent under that Part, informed consent has been given for the treatment; (d) an involuntary patient can never be given special psychiatric treatment except as provided by paragraph (c) . (3) The following policy governs the treatment under this Act of forensic patients or involuntary patients to whom section 66 applies: (a) a forensic patient, or an involuntary patient to whom section 66 applies, may be given treatment – (i) with informed consent; or (ii) if the treatment is authorised by the Tribunal (or a member of the Tribunal) under Division 2 of Part 5 ; or (iii) if the patient is also an involuntary patient, if the treatment is authorised by a treatment order; or (iv) if the treatment is urgent circumstances treatment, if the treatment is authorised under section 87 ; (b) . . . . . . . . (c) a forensic patient, or an involuntary patient to whom section 66 applies, may be given special psychiatric treatment if – (i) the special psychiatric treatment is authorised by the Tribunal under Part 6 ; and (ii) if the treatment is psychosurgery or a treatment that requires informed consent under that Part, informed consent has been given for the treatment; (d) a forensic patient, or an involuntary patient to whom section 66 applies, can never be given special psychiatric treatment except as provided by paragraph (c) . PART 2 - Detaining for the purposes of assessment 17. Power to temporarily detain person for assessment (1) An MHO or police officer may temporarily detain a person for the purpose of assessing the person if the MHO or police officer reasonably believes that – (a) the person has a mental illness; and (b) the person should be assessed against the assessment criteria; and (c) the person's safety or the safety of other persons is likely to be at risk if the person is not so detained. Note Mental illness has the meaning set out in section 4 . The assessment and treatment criteria are set out in section 25 and section 40 respectively. (2) For the purposes of subsection (1) – (a) no form of warrant is required; and (b) the MHO or police officer is not required to confirm whether, under this or any other Act, another process is in train in respect of the person; and (ba) a police officer is not required to exercise clinical judgment when forming a reasonable belief as to whether a person – (i) has a mental illness; or (ii) should be assessed against the assessment criteria; and (c) the custody and escort provisions apply, and continue to apply while the person remains detained in accordance with that subsection. 18. Handover of person temporarily detained for assessment (1) An MHO or police officer who temporarily detains a person for the purposes of assessment – (a) must escort the person to an approved assessment centre (or ensure that another MHO or police officer does so) if the person is not already at an approved assessment centre; and (b) may ask any MHO at the approved assessment centre to continue to so detain the person. (2) An MHO who is asked to continue to detain a person pursuant to subsection (1)(b) must comply with the request unless it would be unsafe in the circumstances to do so. (3) The temporary detaining of a person for assessment is not taken to have been interrupted or terminated merely because physical control of the person has been handed over from one MHO or police officer to another such officer. 19. Dealing with person while temporarily detained (1) This section applies if a person who is temporarily detained for assessment has been escorted to, or detained at, an approved assessment centre pursuant to section 18 . (2) The controlling authority of the approved assessment centre must – (a) give the person a statement of rights in an approved form; and (b) have the person examined by a medical practitioner to see if the person needs to be assessed against the assessment criteria or the treatment criteria; and (c) ensure that the examination of the person referred to in paragraph (b) occurs – (i) as soon as practicable; and (ii) within 4 hours after a member of staff, responsible for the triaging of patients, at the centre has been made aware of the person's arrival at the centre. 20. Obligation to release person being temporarily detained (1) An MHO or police officer who is responsible for a person who is temporarily detained for assessment must release the person from being so detained if – (a) before, or during, the authorised detaining period – (i) informed consent is given to assess or treat the person; or (ii) an assessment order or treatment order is made in respect of the person; or (iii) the MHO or police officer reasonably forms the belief that the person no longer meets the criteria for being temporarily detained, as specified in section 17(1) ; or (b) the authorised detaining period expires and none of the things referred to in paragraph (a) have occurred. Note The assessment criteria and the treatment criteria are set out in section 25 and section 40 respectively. (2) In this section – authorised detaining period, in relation to a person being temporarily detained for assessment, means the 4-hour period that commences when – (a) the person is transported to, or temporarily detained at, an approved assessment centre pursuant to section 18 ; and (b) a member of staff, who is responsible for the triaging of patients at the centre, is made aware – (i) of the detained person's arrival at the centre; or (ii) that the person has been temporarily detained at the centre. 21. Records, &c. (1) An MHO or police officer who temporarily detains a person for the purpose of assessment is to make an appropriate record of the matter in an approved form. (2) An MHO or police officer, on transferring the a person who has been temporarily detained to another such officer, is to hand the record made under subsection (1) (or a copy thereof) to the other officer. (3) An MHO or police officer who releases a person from being temporarily detained is to – (a) make an appropriate record of the matter in an approved form; and (b) give the person a copy of the record, together with the record made under subsection (1) (or a copy thereof); and (c) give the Chief Psychiatrist a copy of the record, together with the record made under subsection (1) , as soon as practicable. (4) A medical practitioner who examines a person who has been temporarily detained for assessment is to – (a) make an appropriate record of the matter in an approved form; and (b) place a copy of the record on the person's clinical record (ensuring that such a clinical record is created if one does not already exist); and (c) give the Chief Psychiatrist a copy of the record at the end of the month in which it is made. PART 3 - Involuntary Patients Division 1 - Assessment orders 22. Who can make an assessment order? An assessment order may be made by any medical practitioner. 23. . . . . . . . . 24. Making an assessment order (1) A medical practitioner may make an assessment order in respect of a person in, and only in, the following circumstances: (a) . . . . . . . . (b) . . . . . . . . (c) the medical practitioner must have examined the person; (d) the examination must have been done in the 24-hour period immediately before the assessment order is made; (e) the medical practitioner must be satisfied from the examination that the person needs to be assessed against the assessment criteria; (f) the medical practitioner must be satisfied that a reasonable attempt to have the person assessed, with informed consent, has failed or that it would be futile or inappropriate to make such an attempt. (2) A medical practitioner may make an assessment order authorising a patient's admission to and, if necessary,detention in an approved hospital. (3) Despite subsection (2) , a medical practitioner is not to make an assessment order authorising a patient who is a child to be admitted to and, if necessary, detained in an approved hospital unless the medical practitioner is satisfied that the hospital – (a) has facilities and staff for the assessment of the patient; and (b) is, in the circumstances, the most appropriate place available to accommodate the patient. (4) A medical practitioner may make an assessment order without having received an application for the order. 25. Assessment criteria The assessment criteria are – (a) the person has, or appears to have, a mental illness that requires or is likely to require treatment for – (i) the person's health or safety; or (ii) the safety of other persons; and (b) the person cannot be properly assessed with regard to the mental illness or the making of a treatment order except under the authority of the assessment order; and (c) the person does not have decision-making capacity. 26. Form and content of assessment order (1) To be valid, an assessment order must – (a) be in an approved form; and (b) be correctly completed. (2) An assessment order is taken to be correctly completed if it – (a) . . . . . . . . (b) identifies the patient; and (c) specifies when the examination referred to in section 24(1)(c) was done; and (d) affirms that the patient needs to be assessed against the assessment criteria; and (e) specifies an assessment setting; and (ea) specifies if the order authorises the patient's admission to and detention in an approved hospital; and (f) specifies (by date and time) when it was made; and (g) specifies or provides for any matter required by the regulations; and (h) identifies, and is signed by, the medical practitioner who makes it. (3) . . . . . . . . (4) An assessment order may, without compromising its validity, specify or provide for any matters, incidental to the assessment of the person in respect of whom the order is made, that the medical practitioner making it considers necessary or desirable in the circumstances. 27. Effect of assessment order (1) An assessment order is authority for the patient to be assessed, without informed consent, by an approved medical practitioner, to – (a) confirm whether the patient meets the assessment criteria; and (b) determine if the patient also meets the treatment criteria. (2) An assessment order is authority – (a) for any MHO or police officer to take the patient under escort to ensure that he or she presents for assessment under the order; and (b) if authorised to do so – (i) by the terms of the order; or (ii) by a medical practitioner under subsection (4) – for the patient to be admitted to an approved facility and, if necessary, detained in an approved facility for and in connection with that assessment. (3) For the purposes of subsection (2) – (a) the medical practitioner who makes the assessment order or any other medical practitioner may request that the patient be taken under escort (in which case the medical practitioner is to ensure that the escort is given a copy of the order); and (b) the custody and escort provisions apply, and continue to apply for so long as the patient is subject to the assessment order. (4) Despite subsection (2)(b)(ii) , a medical practitioner is not to authorise a patient who is a child to be admitted to and, if necessary, detained in an approved hospital unless the medical practitioner is satisfied that the hospital – (a) has facilities and staff for the assessment of the patient; and (b) is, in the circumstances, the most appropriate place available to accommodate the patient. (5) An assessment order is not authority for a patient to be given any treatment. 28. When does assessment order take effect? An assessment order takes effect as soon as it is signed by the medical practitioner who makes it. Note The making of an assessment order is reviewable by the Tribunal – see Division 2 of Part 3 of Chapter 3 . 29. Action to be taken by medical practitioner on making assessment order A medical practitioner who makes an assessment order is to – (a) give a copy of the order to the patient (together with a statement of rights in an approved form); and (b) give a copy of the order to the approved medical practitioner who is likely to do the assessment or, if applicable, the controlling authority of the approved facility where the patient is to be, or is likely to be, assessed; and (c) place a copy of the order on the patient's clinical record (ensuring that such a clinical record is created if one does not already exist). 30. Assessment of patient (1) Once an assessment order has taken effect, the patient must be independently assessed within 24 hours unless the order is sooner discharged. (2) For the purposes of subsection (1) , an assessment is independent if and only if it is done by an approved medical practitioner other than the medical practitioner who applied for or made the assessment order. Note A failure to observe subsection (1) extinguishes the order – see section 34 . 31. . . . . . . . . 32. Affirmation or discharge of assessment order (1) This section applies once a patient who is subject to an assessment order has been independently assessed by an approved medical practitioner. (2) The approved medical practitioner must immediately affirm or discharge the assessment order. (3) To affirm the assessment order, the approved medical practitioner must be satisfied that – (a) the patient meets the assessment criteria; and (b) the order has not already been discharged. (4) If the approved medical practitioner affirms the assessment order, he or she may simultaneously extend its operation, once, by a period not exceeding 72 hours commencing from the time of affirmation. (5) The affirmation is to be effected by means of a signed instrument in writing in an approved form, and is invalid if not in that form. (6) The instrument of affirmation takes effect as soon as it is signed. (7) If the approved medical practitioner affirms the assessment order, the procedure in section 33 is to be followed. (8) If the approved medical practitioner discharges the assessment order, the procedure in section 35(3) and (4) is to be followed. 33. Action to be taken by medical practitioner on affirming assessment order (1) An approved medical practitioner who affirms an assessment order is to – (a) give notice to that effect to – (i) the patient; and (ii) the medical practitioner who made the order; and (iii) the Chief Psychiatrist; and (iv) the Tribunal; and (v) if the patient is to be, or is likely to be, assessed in an approved facility, the controlling authority of the facility; and (b) place a copy of the instrument of affirmation on the patient's clinical record (ensuring that such a clinical record is created if one does not already exist). (2) The notice under subsection (1)(a) is to advise of any extension of the operation of the assessment order. 34. Duration of assessment order An assessment order ceases to have effect – (a) 24 hours after it takes effect if, by then – (i) it has not been affirmed under section 32 ; or (ii) it has been affirmed under section 32 but not extended in operation under that section; or (b) if it is affirmed under section 32 and extended in operation under that section, at the end of the period of extension; or (c) if it is sooner discharged under section 35 ; or (d) if a treatment order is made in respect of the person who is subject to the assessment order. 35. Discharge of assessment order by medical practitioner or Tribunal (1) An assessment order may be discharged at any time for sufficient cause by – (a) the medical practitioner who made it; or (b) any approved medical practitioner; or (c) the Tribunal under section 180 . (2) A medical practitioner has sufficient cause to discharge an assessment order if he or she is satisfied, after assessing the patient or on other reasonable grounds, that the patient does not meet the assessment criteria. (3) In the case of a medical practitioner, the discharge is to be effected by means of a signed instrument in writing in an approved form (the discharge paper). (4) A medical practitioner who discharges an assessment order is to – (a) give a copy of the discharge paper to – (i) the patient; and (ii) the Chief Psychiatrist; and (iii) the Tribunal; and (iv) if the relevant independent assessment has not been done, the approved medical practitioner who was expected to do the assessment or, if applicable, the controlling authority of the approved facility where the assessment was to have been done; and (b) place a copy of the discharge paper on the patient's clinical record. Note For a Tribunal discharge – see Division 2 of Part 3 of Chapter 3 . Division 2 - Treatment orders 36. Who can make a treatment order? Treatment orders are made by the Tribunal. Note Interim treatment orders, however, may be made by a single member of the Tribunal – see section 38 . 37. Application for treatment order (1) Any approved medical practitioner may apply to the Tribunal for a treatment order in respect of a person. (2) The application may be made whether or not the person is subject to an assessment order. (3) If the person is subject to an assessment order, the application should only be made if – (a) the applicant has assessed the person under the authority of the assessment order; and (b) the applicant is satisfied from the assessment that the person meets the treatment criteria. Note The treatment criteria are set out in section 40 . (4) If the person is not subject to an assessment order, the application should only be made if – (a) the person has been assessed by the applicant and one other approved medical practitioner, separately, within the preceding 7 days; and (b) the applicant and the other approved medical practitioner are both satisfied from their respective assessments that the person meets the treatment criteria. (5) The application in relation to a person is to be in accordance with section 195 and be accompanied by – (a) a statement by the applicant affirming that (and explaining how) the person meets the treatment criteria; and (b) . . . . . . . . (c) an indication as to whether an interim treatment order is needed; and (d) if the person is subject to an assessment order, a copy of that order. (6) The applicant is to – (a) give a copy of the application to the person (together with a statement of rights in a form approved by the President of the Tribunal); and (b) place a copy of the application (and accompanying documentation) on the person's clinical record (ensuring that such a clinical record is created if one does not already exist). 38. Interim treatment order (1) Despite section 36 , a single member of the Tribunal may make an interim treatment order in respect of a person if, but only if, the member is satisfied that – (a) an approved medical practitioner has applied for a treatment order in respect of the person; and (b) the requirements of section 37 appear to have been met in respect of the application; and (c) the person meets the treatment criteria; and (d) the Tribunal cannot immediately determine the application; and (e) the delay that would be involved in awaiting a decision of the Tribunal under section 39 should the interim treatment order not be made would, or is likely to, seriously harm – (i) the person's health or safety; or (ii) the safety of other persons. (2) An interim treatment order may include a requirement – (a) that the treatment setting for a patient be – (i) an approved facility (other than an SMHU), or a premises or place, specified in the order; or (ii) a type of approved facility (other than an SMHU), or a type of premises or place, specified in the order; and (b) that, for the purposes of receiving treatment, a patient may be admitted to and, if necessary, detained in – (i) an approved facility (other than an SMHU) specified in the order; or (ii) a type of approved facility (other than an SMHU) specified in the order. (2A) An interim treatment order may provide for a combination of treatment settings and for the admission and re-admission of the patient to those settings. (3) Despite subsection (2) , the Tribunal member is not to make an interim treatment order requiring a patient who is a child to be admitted to and, if necessary, detained in an approved hospital for the purposes of receiving treatment unless the member is satisfied that the hospital – (a) has facilities and staff for the treatment and care of the patient; and (b) is, in the circumstances, the most appropriate place available to accommodate the patient. (4) The Tribunal member may make the interim treatment order on the basis of the application alone, without any hearing or further investigation. (5) Section 41 applies in relation to the making of an interim treatment order. (6) If an interim treatment order is made, the order is, for all purposes, taken to be a treatment order made by the Tribunal except that sections 43 , 44 and 48 do not apply in relation to the order. (7) The interim treatment order – (a) takes effect as soon as it is made; and (b) continues in effect, subject to subsection (8) , until the application is determined by the Tribunal. (8) Any Tribunal member may revoke or amend the interim treatment order at any time. (9) The interim treatment order lapses after 10 days (calculated from the precise time it is made) if, by then, the Tribunal has not determined the application. 39. Determination of application for treatment order (1) The Tribunal may make a treatment order in respect of a person if, and only if, it is satisfied that – (a) an approved medical practitioner has applied for a treatment order in respect of the person; and (b) the requirements of section 37 have been met in respect of the application; and (c) the person meets the treatment criteria; and (d) a treatment plan has been prepared for the person; and (e) the requirements of section 53(2) appear to have been met with respect to the treatment plan. (2) A treatment order may include a requirement – (a) that the treatment setting for a patient be – (i) an approved facility (other than an SMHU), or a premises or place, specified in the order; or (ii) a type of approved facility (other than an SMHU), or a type of premises or place, specified in the order; and (b) that, for the purposes of receiving treatment, a patient may be admitted to and, if necessary, detained in – (i) an approved facility (other than an SMHU) specified in the order; or (ii) a type of approved facility (other than an SMHU) specified in the order. (2A) A treatment order may provide for a combination of treatment settings and for the admission and re-admission of the patient to those settings. (3) Despite subsection (2) , the Tribunal is not to make a treatment order requiring a patient who is a child to be admitted to and, if necessary, detained in an approved hospital for the purposes of receiving treatment unless it is satisfied that the hospital – (a) has facilities and staff for the treatment and care of the patient; and (b) is, in the circumstances, the most appropriate place available to accommodate the patient. (4) The Tribunal is to determine an application for a treatment order as soon as practicable after it is received and must do so by way of a hearing. (5) An application for a treatment order lapses and is rendered invalid if the Tribunal for any reason fails to determine the application within 10 days after it is lodged. (6) The President of the Tribunal is to ensure that a hearing for the purposes of this section is before the Tribunal as constituted by 3 members. 40. Treatment criteria The treatment criteria in relation to a person are – (a) the person has a mental illness; and (b) without treatment, the mental illness will, or is likely to, seriously harm – (i) the person's health or safety; or (ii) the safety of other persons; and (c) the treatment will be appropriate and effective in terms of the outcomes referred to in section 6(1) ; and (d) the treatment cannot be adequately given except under a treatment order; and (e) the person does not have decision-making capacity. 41. Form and content of treatment order (1) To be valid, a treatment order must – (a) be in a form approved by the President of the Tribunal; and (b) be correctly completed. (2) A treatment order is taken to be correctly completed if it – (a) identifies the approved medical practitioner who applied for it; and (b) identifies the person who is subject to the order; and (c) specifies the treatment, or types of treatment, authorised under the order; and (d) specifies a treatment setting; and (da) specifies if the order authorises the patient's admission to and, if necessary, detention in an approved hospital; and (e) specifies (by date and time) when it was made; and (f) specifies the maximum period it is expected to remain in effect (if not sooner discharged); and (g) specifies or provides for any matters required by the regulations. (3) . . . . . . . . (4) If an assessment order in respect of a person is, under section 34(d) , discharged by the making of a treatment order or an interim treatment order, the Tribunal may specify in the treatment order that the assessment order has been so discharged. (5) A treatment order may, without compromising its validity, specify or provide for any other matters, incidental to the treatment of the person in respect of whom the order is made, that the Tribunal considers necessary or desirable in the circumstances. 42. Effect of treatment order (1) A treatment order is authority for the patient to be given, without informed consent, the treatment, or type of treatment, specified in the order. (2) A treatment order is authority – (a) for the patient to be admitted to and, if necessary, detained in an approved facility, or type of approved facility, for the purposes of receiving treatment, if the terms of the order so specify; or (b) in any case, if section 47 or section 47A applies in relation to the patient, authority for the patient to be admitted to and, if necessary, detained in an approved facility (other than an SMHU) – until whichever of the following first occurs: (c) the order is varied so as to provide for a different treatment setting; (d) if the detention is authorised under the order, the order ceases to have effect under this Act. (3) If a patient is admitted to an approved facility under this section, the controlling authority of the approved facility is to notify the Tribunal and the Chief Psychiatrist of the patient's admission. (4) A treatment order in respect of a person is authority for any MHO or police officer to take the patient under escort to ensure that he or she presents for treatment under the order. (5) For the purposes of subsection (2) , the Tribunal, any member of the Tribunal, the Registrar, the Chief Psychiatrist or any medical practitioner may request that the patient be taken under escort (in which case the maker of the request is to give the escort a copy of the treatment order). (6) If a patient