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Mental Health Amendment Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purpose of the Bill.
Clause 2 is the commencement provision.
Subclause (1) provides that Part 1 and sections 25(2), 28 and 29
of the Bill come into operation on the day after the day on which
this Bill receives Royal Assent.
Subclauses (2) and (3) provide that the remaining provisions of
the Bill are to come into operation on a day to be proclaimed or
on 1 June 2016 if not proclaimed before that date.
Clause 3 identifies the Mental Health Act 2014 as the Principal Act.
Part 2--General amendments to the Mental Health Act 2014
Clause 4 amends the definitions of psychiatrist, Secretary and Secretary to
the Department of Justice in section 3(1) of the Principal Act,
and repeals the definition of Secretary to the Department of
Human Services.
Clause 5 amends the definition of treatment in section 6(a) of the Principal
Act. The words "done to the person" have been removed from
the definition to better reflect the intention that decisions about
mental health treatment should be person-centred, with the
person being supported to make or participate in treatment
decisions as far as possible, rather than being a passive recipient
of treatment.
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Clause 6 inserts a new section 16(2)(f) into the Principal Act.
This amendment prevents an authorised psychiatrist from
making a direction under section 16(1) which restricts an
inpatient's right to communicate with a person or body
prescribed in the Regulations.
Clause 7 amends section 17(c) of the Principal Act to limit the obligation
to notify an inpatient's carer of a restriction on the inpatient's
right to communicate made under section 16 of the Principal Act
to circumstances where the authorised psychiatrist is satisfied
that the restriction will directly affect the carer and the care
relationship. This amendment is consistent with other carer
notification requirements throughout the Principal Act.
Clause 8 amends section 34 of the Principal Act to clarify the duration of
an Assessment Order that is varied from an Inpatient Assessment
Order to a Community Assessment Order.
Subclause (1) provides that section 34(1) which sets out the
duration of an Assessment Order is to be subject to the new
section 34(1A).
Subclause (2) inserts the new section 34(1A). Section 34(1A)
provides that in the case of an Assessment Order that is varied
from an Inpatient Assessment Order to a Community Assessment
Order, the Community Assessment Order remains in force for a
period of 24 hours from the date and time of variation, if the
person who is subject to the Order is not received at a designated
mental health service. If the person subject to the Order has
already been received at a designated mental health service, the
duration of the Community Assessment Order is 24 hours from
the time the person was received at the designated mental health
service.
Clause 9 inserts a new section 46(1)(aa) into the Principal Act.
Section 46(1)(aa) provides that before conducting an examination
of a person who is subject to an Assessment Order, the authorised
psychiatrist must, to the extent that is reasonable in the
circumstances, inform the person being examined that they are
being examined by the authorised psychiatrist for the purpose of
determining whether the treatment criteria in section 5 of the
Principal Act apply to the person and whether to make a
Temporary Treatment Order.
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Clause 10 substitutes section 62(a) of the Principal Act to clarify that a
Temporary Treatment Order expires when a Treatment Order is
made for a person.
Clause 11 amends section 66(4)(a) to change the term "assessed or treated
at the original designated mental health service" to "assessed or
treated by the original designated mental health service".
This amendment reflects that the assessment or treatment of
the person pursuant to the varied Order may be in the community
or as an inpatient.
Clause 12 amends section 76 of the Principal Act.
Subclause (1) amends the heading to section 76 of the Principal
Act to better represent the wording in the body of the section,
which requires the authorised psychiatrist to "have regard to"
specified matters.
Subclause (2) amends section 76(2)(a) to clarify that the
authorised psychiatrist is to have regard to the patient's views and
preferences regarding medical treatment and any beneficial
alternative medical treatments, rather than any beneficial
alternative treatments. This is because the word treatment is
defined in section 6 to mean "treatment for mental illness".
Clause 13 amends sections 94(1)(a) and 94(2)(a) of the Principal Act and
inserts new sections 94(4) and 94(5).
Subclause (1) inserts the word "personally" into sections 94(1)(a)
and 94(2)(a) to clarify that if a young person is giving informed
consent to electroconvulsive treatment (ECT), it is their personal
consent that is relevant and not whether a substitute decision
maker has consented.
Subclause (2) inserts a new section 94(4) and section 94(5) into
the Principal Act. Section 94(4) clarifies that an authorised
psychiatrist who is providing ECT to a young patient may apply
to the Tribunal during or after an existing course of ECT for
approval to perform a further course of ECT on the young
patient. This is consistent with section 93(3) of the Principal Act,
which enables the authorised psychiatrist to apply to the Tribunal
during or after an existing course of ECT for approval to perform
a further course of ECT on an adult patient. Section 94(5)
clarifies that a psychiatrist who is providing ECT to a young
person may apply to the Tribunal during or after an existing
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course of ECT for approval to perform a further course of ECT
on the young person who is not a patient.
Clause 14 amends section 106 of the Principal Act.
Section 106 requires a person who authorises a restrictive
intervention on a person to ensure that the person's needs are met
and dignity is protected by the provision of appropriate facilities
and supplies. The amendment will clarify that appropriate
facilities and supplies must also be provided to a person in
circumstances where a registered nurse approves the use of
bodily restraint on an urgent basis pursuant to section 115 of the
Principal Act.
Clause 15 amends section 112(2) of the Principal Act to require a registered
nurse or a registered medical practitioner to clinically review a
person in seclusion.
This amendment ensures that persons held in seclusion will have
the same level of monitoring as is required for a person subject to
bodily restraint in section 116.
Clause 16 amends section 116(3) of the Principal Act.
This amendment clarifies that a registered nurse or registered
medical practitioner must clinically review the person on whom a
bodily restraint is used as often as appropriate. This is consistent
with the language used in section 112(2) in relation to the clinical
review of a person kept in seclusion.
Clause 17 amends section 118 of the Principal Act to include a new
function of the Secretary to submit an annual report on the state
of Victoria's mental health services to the Minister.
Subclause (1) inserts a section 118(1)(k) which provides a new
function of the Secretary to prepare and submit to the Minister an
annual report.
Subclause (2) inserts new sections 118(2) and 118(3) into the
Principal Act. Section 118(2) provides that the Secretary must
submit the report to the Minister as soon as practicable but not
later than the following 31 October of the relevant year.
Sections 118(2)(a) and 118(2)(b) set out the information to be
contained in the annual report, including any information
requested in writing by the Minister. Section 118(3) requires the
Minister to table the annual report in both Houses of Parliament
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within 14 sitting days of each House after the annual report has
been received by the Minister.
Clause 18 amends section 140 of the Principal Act.
Subclause (1) amends section 140(3) of the Principal Act to
clarify that the chief psychiatrist may use or disclose
information gained or conveyed by reason of conducting a
clinical practice audit or clinical review where it is necessary to
prevent serious and imminent harm to a person's health or safety.
This amendment clarifies that potential harm must be both
serious and imminent.
Subclause (2) amends section 140(8) of the Principal Act to
clarify that information contained in a document related to a
clinical practice audit or clinical review must not identify a
person or a mental health service provider.
Clause 19 amends subsection 151(1) of the Principal Act.
Subclause (a) clarifies that the reference to the "Medical Board"
in section 151(1)(b) is a reference to the "Medical Board of
Australia".
Subclause (b)(i) amends a minor grammatical error in
section 151(1)(c).
Subclause (b)(ii) corrects an error in section 151(1)(c) of the
Principal Act by substituting the reference to section 68 of the
Health Practitioner Regulation National Law, with a reference to
section 67 of the Health Practitioner Regulation National Law.
Clause 20 amends section 189(1)(g) of the Principal Act to require the
Mental Health Tribunal to give written notice of a hearing to
a carer of the person who is the subject of the proceeding.
The amendment removes the qualification that the Mental
Health Tribunal must only notify the carer if satisfied that the
hearing will directly affect the carer and carer relationship.
This amendment is required because the Mental Health Tribunal
is unable to assess the impact of the hearing on carers or the care
relationship before the hearing.
Clause 21 amends section 217(1)(d) of the Principal Act to rectify a
typographical error, being the omission of the verb "inspect".
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Clause 22 amends section 220 of the Principal Act to remove a minor
typographical error.
Clause 23 amends section 274(2) of the Principal Act so that it applies
to a person discharged as a security patient under
subsection 274(1)(a) or (b). Section 274(1)(c) refers to
section 295(1) of the Principal Act which sets out the
circumstances when a security patient automatically ceases to be
a security patient. Section 274(2) is not relevant for this patient
group.
Clause 24 amends section 275 of the Principal Act to substitute "in" for
"at". This amendment reflects the requirement that persons
subject to a Secure Treatment Order must be detained and treated
in a designated mental health service.
Clause 25 amends section 276 of the Principal Act.
Subclause (1) amends section 276(1)(b)(iii) of the Principal Act
to clarify that the treatment to be provided is the treatment
described in section 276(1)(b)(ii), being treatment that the person
needs to prevent serious deterioration or serious harm in the
person's mental health.
Subclause (2) substitutes section 276(2) of the Principal Act to
remove subsection 26(2)(a). The effect of this substitution is that
Secure Treatment Orders can be made in relation to persons
detained in prison or other place of confinement under the
Crimes (Mental Impairment and Unfitness to be Tried) Act
1997 (whether on remand or under a supervision order made
under that Act).
Subclause (3) repeals section 276(3) of the Principal Act since
section 276(3) is no longer needed to qualify section 276(2) after
section 276(2)(a) is removed.
Clause 26 amends section 280(2) of the Principal Act so that it applies to a
person discharged as a security patient under section 280(1)(a)
or (b). Section 280(1)(c) refers to section 295(1) which sets out
the circumstances when a security patient automatically ceases to
be a security patient. Section 280(2) is not relevant for this
patient group.
Clause 27 amends section 297(1) of the Principal Act. It is impractical for
the authorised psychiatrist to always personally notify the
Secretary to the Department of Justice and Regulation that he or
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she intends to discharge a person as a security patient.
The amendment provides that the authorised psychiatrist is to
ensure the Secretary is notified, which means that the function to
notify the Secretary may be appropriately delegated.
Clause 28 amends section 305 of the Principal Act.
Subclause (1) makes a minor typographical amendment to
paragraph (f) of the definition of forensic patient in
section 305(1) of the Principal Act.
Subclause (2) repeals paragraph (g) of the definition of forensic
patient as a consequence of repealing section 306 of the Principal
Act.
Clause 29 repeals section 306 of the Principal Act.
Section 306 enables persons detained in prison under the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997
(whether on remand or under a supervision order made under that
Act) to be taken to a designated mental health service as a
forensic patient for treatment if the criteria in section 306(2)
apply. This provision is no longer required due to changes made
by clause 25(2) which enable persons detained in prison under
the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997 (whether on remand or under a supervision order made
under that Act) to be transferred from prison to a designated
mental health service for treatment pursuant to a Secure
Treatment Order.
Clause 30 amends section 344 by inserting a new subsection (7) which
provides that the Minister may publish the statement of priorities
required to be prepared by Victorian Institute of Forensic Mental
Health on the Department of Health and Human Services'
Internet website.
Clause 31 amends section 353 of the Principal Act.
Subclause (1) inserts the words "or from" after the word "to" in
the heading to section 353 to make it clear that that the power
under this section applies both to when a person is taken to, or
from, a designated mental health service.
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Subclause (2) inserts the words "or from" after the word "to" in
section 353(2)(b) to clarify that the power of apprehension also
applies when the person is to be taken from a designated mental
health service.
Clause 32 amends section 370(1)(f) of the Principal Act to remove the
requirement that regulations prescribing the allowances and
remuneration of Tribunal member are to be expressed as a
percentage of the remuneration of VCAT members.
Clause 33 inserts a new Part 16A and section 428A into the Principal Act.
Part 16A deals with general savings and transitional provisions
for the Principal Act.
The new section 428A provides that on and from the date that
clause 29 of the Bill comes into operation, a person who has been
transferred to a designated mental health service from prison
pursuant to a direction made under section 306 and remains at the
designated mental health service, is taken to be subject to a
Secure Treatment Order. The person will be taken
to have been received at the designated mental health services
on the date that clause 29 of the Bill comes into operation.
Clause 29 repeals section 306 of the Principal Act. The review
provisions under section 279 will apply to these persons.
Part 3--General amendment to the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997
Clause 34 substitutes section 38ZS of the Crimes Mental(Mental
Impairment and Unfitness to be Tried) Act 1997 to provide
that the Secretary to the Department of Health and Human
Services must arrange for the preparation of a report referred to
in section 38ZR. Previously section 38ZS required the Secretary
to the Department of Health and Human Services to prepare the
report. The amendment is consistent with the practice of the
Secretary to obtain the section 38ZR report from a mental health
professional outside of the Department of Health and Human
Services, usually from a clinician at a designated mental health
service.
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Part 4--Amendments in relation to administrative changes
Division 1--Mental Health Act 2014
Clause 35 amends the references in the Principal Act to the "Department of
Health" and the "Department of Human Services" to the
"Department of Health and Human Services" to reflect the
changes made to administrative arrangements.
Clause 36 amends the references in the Principal Act to the "Department of
Justice" to the "Department of Justice and Regulation" to reflect
the changes made to administrative arrangements.
Division 2--Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997
Clause 37 makes various amendments to the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 to reflect changes in the
administrative arrangements whereby the Department of Health
and the Department of Human Services have been combined into
the Department of Health and Human Services.
Clause 38 amends the references in the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 to the "Department of Justice"
to the "Department of Justice and Regulation" to reflect the
changes made to administrative arrangements.
Part 5--Repeal of amending Act
Clause 39 provides for the automatic repeal of the Bill on 1 June 2017.
The repeal of the Bill does not affect in any way the
continuing operation of the amendments made by the Bill
(see section 15(1) of the Interpretation of Legislation Act
1984).
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