Declared Places (Mental Impairment) Act 2015 (Western Australia)

The Declared Places (Mental Impairment) Act 2015 (the Act) creates a statutory framework for places established by the Disability Services Commission to detain, habilitate and rehabilitate people required to be detained under the Criminal Law (Mental Impairment) Act 2023 (CLMI Act). The long title states this purpose explicitly and the definitions in s 3 link the Act to the CLMI Act by defining “resident” as a supervised person required under the CLMI Act to be detained in a declared place. The Act’s operative provisions (other than ss 1-2) commence on proclamation (s 2).

Mechanically, the Act does the following (selected, source-grounded outline):

Establishes principles and objectives for the management, treatment and services for residents (Pt 2: ss 5-6). These place public safety first, then resident safety, then best interests of residents who are not adults (s 5(1)). Programmes must pursue habilitation, reduction of reoffending, community reintegration and least restrictive care (s 6(4), (6)).
Creates express statutory rights and processes for residents, including explanation of rights (s 8), a statutory right to freedom of lawful communication subject to limited CEO orders (ss 9-10), and a requirement for individual development plans (IDPs) for every resident, with mandatory content, multi‑disciplinary assessment and review timetables (Pt 4: ss 11-14).
Regulates “regulated behaviour management” , behaviour management medication, restraint and seclusion , by defining each category, restricting how they are authorised and used, requiring written authorisations, mandating observation intervals and detailed recordkeeping, and requiring periodic review and reporting to the chief advocate (Pt 8: ss 25-43).

CrestWestern Australia

Declared Places (Mental Impairment) Act 2015

Western Australia

Declared Places (Mental Impairment) Act 2015

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Act binds Crown 4

Part 2 — Principles and objectives

Principles applicable to residents 5
Objectives for programmes and services 5

Part 3 — Residents’ rights

Rights under other laws 7
Explanation of resident’s rights 7
Freedom of lawful communication 7
Restricting freedom of communication 8

Part 4 — Individual development plans

Residents to have individual development plans 10
Preparation, review, change of individual development plan 10
Content of individual development plans 11
Review of individual development plans 12

Part 5 — Protection of residents

Certain incidents to be reported 14
Residents not to be ill‑treated 14
Treatment decisions on behalf of residents 15

Part 6 — Functions of CEO

CEO’s functions as to residents 17
CEO’s functions as to declared places 17
Delegation of CEO’s functions 18

Part 7 — Management of declared places

Terms used 20
Powers to control and manage declared places 20
General powers in relation to residents 21
Searching people and seizing things 21

Part 8 — Regulation of behaviour management

Division 1 — Behaviour management medication

Terms used 24
Administration of behaviour management medication 24
Records of behaviour management medication 25

Division 2 — Restraint

Term used: restraint 26
Approval of restraint devices 27
Restraint to be authorised 27
Restraint to be in accordance with authorisation 28
Records about restraint 28

Division 3 — Seclusion

Term used: seclusion 29
Seclusion to be authorised 30
Seclusion to be in accordance with authorisation 31
Records about seclusion 31

Division 4 — General provisions about regulated behaviour management

Term used: regulated behaviour management 32
Police officers’ powers not affected 32
Consent not required 33
General restrictions on regulated behaviour management 33
Welfare of residents during and after regulated behaviour management 33
Chief advocate to receive information about regulated behaviour management 34
Review of use of regulated behaviour management 34

Part 9 — Contracts for declared place services

Contracts for declared place services 35
Minimum matters to be included in contracts 35
Minimum standards 37
Penalty for breach 37
Access to certain declared places, persons and documents 38
Annual reports and tabling of contracts 39
No contracting out 39

Part 10 — Advocacy services for residents

Terms used 40
Residents’ rights as to visits or other contact 40
Advocate functions 41
Advocate powers 42
Offences 44
Advocate reports 45

Part 11 — Miscellaneous matters

Provision of information about residents: Tribunal and CEO 46
Provision of information about residents: CEO and others 46
Confidentiality of information about residents 47
Reports about declared places 48
Protection from personal liability 49
Laying documents before Parliament 49
Regulations 50
Review of this Act 50

Part 12 — Transitional provisions for Criminal Law (Mental Impairment) Act 2023

Terms used 51
Provision of information about residents 51

Notes

Compilation table 52

Defined terms

Western Australia

Declared Places (Mental Impairment) Act 2015

An Act to make provision for matters relating to places established by the Disability Services Commission for the detention, habilitation and rehabilitation of supervised persons required to be detained under the Criminal Law (Mental Impairment) Act 2023.

[Long title inserted: No. 10 of 2023 s. 324.]

The Parliament of Western Australia enacts as follows:

Part 1 — Preliminary

1. Short title

This is the Declared Places (Mental Impairment) Act 2015.

[Section 1 amended: No. 10 of 2023 s. 325.]

2. Commencement

This Act comes into operation as follows —

(a) sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3. Terms used

In this Act, unless the contrary intention appears —

adult means a person who has reached 18 years of age;

advocate has the meaning given in section 51;

authorised hospital has the meaning given in the CLMI Act section 9(1);

carer has the meaning given in the Carers Recognition Act 2004 section 5;

CEO means the chief executive officer of the Commission;

chief advocate has the meaning given in section 51;

CLMI Act means the Criminal Law (Mental Impairment) Act 2023;

Commission means the Disability Services Commission referred to in the Disability Services Act 1993 section 6;

contractor means a person who has entered into a contract with the CEO under section 44;

declared place means a place —

(a) that is a declared place under the CLMI Act section 60; and

(b) that is controlled and managed by or on behalf of the Commission;

declared place, in relation to a resident, means the declared place in which the resident is required to be detained;

declared place services means the services provided under a contract entered into under section 44;

detention centre has the meaning given in the Young Offenders Act 1994 section 3;

enduring guardian has the meaning given in the GAA Act section 3(1);

GAA Act means the Guardianship and Administration Act 1990;

guardian —

(a) in relation to a resident who is not an adult, means a person who at law has parental responsibility, as defined in the Family Court Act 1997 section 68, for the resident; and

(b) in relation to an adult resident, means a guardian as defined in the GAA Act section 3(1);

individual development plan, in relation to a resident at a particular time, means the individual development plan in effect under Part 4 for that person at that time;

prison has the meaning given in the Prisons Act 1981 section 3(1);

regulated behaviour management has the meaning given in section 37;

resident means a supervised person who is required under the CLMI Act to be detained in a declared place;

subcontractor means a subcontractor of a contractor and includes a person with whom a subcontractor contracts and a person with whom that person contracts;

supervised person has the meaning given in the CLMI Act section 9(1);

Tribunal has the meaning given in the CLMI Act section 9(1).

[Section 3 amended: No. 10 of 2023 s. 326.]

4. Act binds Crown

This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities.

Part 2 — Principles and objectives

5. Principles applicable to residents

(1) These are the paramount considerations in performing a function under this Act, in order of priority —

(a) the protection and safety of the community;

(b) the protection and safety of residents;

(2) Residents are to be provided the best possible training, including development programmes that promote their physical, mental, social and vocational abilities.

(3) Residents are to have access to appropriate care in relation to their physical, medical and dental health needs, including substance abuse problems and associated health conditions.

(4) A person performing a function under this Act must have regard to the principles set out in subsections (1) to (3).

6. Objectives for programmes and services

(1) Programmes and services for residents are to be designed and administered so as to respect the rights of residents to be treated —

(a) with dignity, courtesy and compassion; and

(b) without discrimination or stigma; and

(2) Programmes and services for residents are to be designed and administered so as to be sensitive and responsive to the diverse and individual circumstances and needs of residents taking into account their age, gender, spiritual beliefs, cultural or linguistic background, family and lifestyle choices.

(3) Programmes and services for residents who are not adults are to be designed and administered giving high importance to the best interests of the residents.

(4) Programmes and services for residents are to be based on empirical evidence and are to be designed and administered so as to —

(a) reduce the risk of residents offending or re‑offending; and

(b) assist residents to live, work and participate in the community and be as independent as possible; and

(5) Programmes and services for Aboriginal or Torres Strait Islander residents are to be designed and administered so as to be appropriate to, and consistent with, their cultural beliefs, mores and practices taking into account the views of their families and communities.

(6) Programmes and services for residents are to be designed and administered so as to assist residents to be trained, developed and cared for in a manner that is the least restrictive option in the circumstances taking into account the need for the protection and safety of residents and the community.

(7) Programmes and services are to provide residents and their families, carers and advocates with opportunities for participating in the planning and provision of services received by residents.

(8) A person performing a function under this Act must have regard to the objectives set out in subsections (1) to (7).

Part 3 — Residents’ rights

7. Rights under other laws

(1) This Part is in addition to any law that confers rights on a person.

(2) This Act does not affect a resident’s rights under any other law, except to the extent it does so expressly.

8. Explanation of resident’s rights

(1) The CEO must ensure that each resident in a declared place is given an explanation of the resident’s rights under this Act, the Freedom of Information Act 1992 and any other written law that applies to the declared place.

(2) The CEO must ensure that, if a resident has an enduring guardian or a guardian —

(a) the enduring guardian or guardian is also given an explanation of the resident’s rights; and

(b) if the resident is not an adult, the resident’s guardian is also given a written explanation of the resident’s rights.

(3) The CEO must ensure that one adult who the CEO is aware has a close personal relationship with a resident is also given an explanation of the resident’s rights.

(4) The CEO must ensure that an explanation is given in a manner which is likely to be understood by the resident or other person to whom it is given.

9. Freedom of lawful communication

(1) This section is subject to section 10.

(2) A resident has the right to freedom of lawful communication.

(3) A resident’s right to freedom of lawful communication includes the right to do any or all of these —

(a) to communicate with other residents in the resident’s declared place to the extent it is reasonable;

(b) to send and receive uncensored communications;

(c) to receive at any time visits from, or otherwise have contact with, the resident’s advocate, enduring guardian, guardian or lawyer;

(d) to receive at all reasonable times visits from, or otherwise have contact with, other people;

(e) to have access to mail and telephone services for the purposes of paragraphs (c) and (d);

(f) to have access at reasonable times to newspapers, radio and television.

10. Restricting freedom of communication

(1) The CEO may make an order —

(a) prohibiting a resident from exercising a right under section 9 for a period specified in the order; or

(b) limiting the extent to which a resident can exercise such a right for a period specified in the order.

(2) The CEO cannot make an order under subsection (1) that affects the right of a resident to receive at any time visits from, or otherwise have contact with, the resident’s advocate, enduring guardian, guardian or lawyer.

(3) The CEO cannot make an order under subsection (1) unless satisfied that —

(a) it is in the best interests of the resident to do so; or

(b) it is necessary to do so to protect other persons in the resident’s declared place or in the community; or

(c) it is necessary to do so to ensure the proper operation, control, management, security or good order of the resident’s declared place.

(4) The CEO may vary or cancel an order made under subsection (1).

(5) An order under subsection (1) or (4) must be in writing.

(6) The CEO must ensure —

(a) that the records of a declared place relating to a resident include these —

(i) any document created under this section in relation to the resident;

(ii) written reasons for a decision made under subsection (1) or (4) in relation to the resident;

and

(b) that each of these people is given a copy of the records listed in paragraph (a)(i) and (ii) —

(i) the resident;

(ii) the resident’s advocate, enduring guardian, guardian or lawyer;

(iii) one adult who the CEO is aware has a close personal relationship with the resident.

Part 4 — Individual development plans

11. Residents to have individual development plans

(1) The CEO must ensure that —

(a) an individual development plan is prepared for each resident in accordance with this Part; and

(b) each resident is managed, and receives care, support and protection, as required under the resident’s individual development plan; and

(c) any assessment of a resident that is conducted as required under the resident’s individual development plan is recorded in the resident’s file.

(2) The purposes of a resident’s individual development plan are —

(a) to promote the resident’s development, habilitation and rehabilitation through training and other programmes appropriate to the resident; and

(b) to provide for the resident’s management, care, support and protection; and

12. Preparation, review, change of individual development plan

(1) The CEO must ensure that for the preparation of a resident’s individual development plan, the resident is assessed by 2 or more persons —

(a) with the qualifications or experience appropriate, in the CEO’s opinion, to conduct the assessment; and

(b) whose qualifications or experience are in different disciplines.

(2) The CEO must ensure that any positive behaviour support component of a resident’s individual development plan is assessed by a qualified behavioural support specialist.

(3) An individual development plan must be prepared having regard to any relevant policies and procedures about the management, care, support and protection of residents issued by the CEO for the purposes of this Act.

(4) The CEO must ensure that for the preparation of a resident’s individual development plan, the following people are consulted —

(a) the resident;

(b) the resident’s advocate, enduring guardian or guardian;

(c) a carer, or member of the resident’s family who, in the CEO’s opinion, is integral to the plan’s preparation and available to participate.

(5) A resident’s individual development plan must take into account any current document by which another person has power to make decisions on behalf of the resident.

(6) This section applies to the review of, and proposals to change, an individual development plan in the same way that it applies to the preparation of the plan.

13. Content of individual development plans

A resident’s individual development plan must be in writing and include —

(a) an outline of the proposed arrangements for the provision of programmes or services for —

(i) promoting the resident’s development, habilitation, rehabilitation and quality of life; and

(ii) providing for the resident’s management, care, support and protection; and

(iii) reducing the intensity, frequency and duration of the resident’s behaviour that places at risk the health or safety of the resident or others, including positive behaviour support; and

(iv) supporting the resident’s reintegration into the community;

and

(b) an outline of the proposed plan for the resident’s transition to participation and inclusion in the community; and

(c) details of any medication prescribed for the health care of the resident by a person registered under the Health Practitioner Regulation National Law (Western Australia) in a health profession; and

(d) provision for the review of the resident’s health care medication; and

(e) provision as to the resident’s further assessment; and

(f) what constitutes appropriate or inappropriate regulated behaviour management in the resident’s case; and

(g) details of any medication prescribed for the resident as behaviour management medication, as required under section 27(1)(b); and

(h) details mentioned in section 31(1)(b) or 35(1)(b), as is applicable in the case, of each emergency when a restraint was used on the resident or the resident was placed in or returned to seclusion; and

(i) strategies for avoiding, reducing and eliminating any further use of a regulated behaviour management that has been used in the resident’s case; and

(j) any other information prescribed by regulation.

14. Review of individual development plans

(1) The CEO must ensure that each resident’s individual development plan —

(a) is reviewed before the expiry of 6 months after it is first prepared and then every 12 months; and

(b) is reviewed as soon as practicable after the resident requests a review because the resident’s circumstances have changed since the plan was prepared or most recently reviewed.

(2) The CEO must provide a copy of a resident’s reviewed individual development plan —

(a) on request of the resident, to the resident or the resident’s advocate or lawyer; and

(b) on request of the resident or the resident’s enduring guardian or guardian, to the enduring guardian or guardian.

Part 5 — Protection of residents

15. Certain incidents to be reported

(1) In this section —

reportable incident, in relation to a resident, means —

(a) any ill‑treatment or wilful neglect of the resident; or

(b) any unlawful sexual contact with the resident; or

work, in a declared place, means to provide services at the place —

(a) under a contract of service or a contract for services; or

(b) voluntarily.

(2) A person who works in a declared place and who reasonably suspects a reportable incident has occurred in relation to a resident must report the suspicion to at least one of the following —

(a) the CEO;

(b) a person who is nominated by the CEO for the purposes of this section;

(d) the Director as defined in the Health and Disability Services (Complaints) Act 1995 section 3(1);

(e) a police officer.

Penalty: a fine of $5 000.

16. Residents not to be ill‑treated

(1) In this section —

ill‑treat includes to wilfully neglect;

person responsible, for a resident, means any person whose duties, directly or indirectly, are or include caring for, providing services to or supervising, managing or controlling the resident.

(2) A person responsible for a resident must not ill‑treat the resident.

Penalty: a fine of $24 000 or imprisonment for 2 years.

17. Treatment decisions on behalf of residents

(1) In this section —

treatment means —

(a) medical or surgical treatment, including —

(i) a life sustaining measure; and

(ii) palliative care;

(b) dental treatment; or

treatment decision, in relation to a person, means a decision to consent or refuse consent to the commencement or continuation of any treatment of the person.

(2) The CEO may make a treatment decision in respect of a resident’s treatment if —

(a) the resident needs treatment; and

(b) the resident is unable to make reasonable judgments in respect of the treatment proposed to be provided to the resident; and

(i) at law may make a treatment decision in respect of the treatment; and

(ii) is reasonably available; and

(iii) is willing to make a treatment decision in respect of the treatment.

(3) When making a treatment decision in respect of a resident’s treatment the CEO must act according to the CEO’s opinion of the best interests of the resident.

(4) After making a treatment decision in respect of a resident’s treatment the CEO must take such action as the CEO considers appropriate in relation to the appointment of a guardian to make treatment decisions for the resident.

(5) The CEO must ensure, if a health professional provides urgent treatment to a resident in accordance with the GAA Act section 110ZI, that there is recorded in the resident’s file —

(a) details of the treatment; and

(b) why it was not practicable for the health professional to obtain a treatment decision in respect of the treatment from the resident’s guardian or enduring guardian or the person responsible for the resident as a patient under the GAA Act section 110ZD.

(6) The CEO must ensure, if a health professional provides urgent treatment to a resident in accordance with the GAA Act section 110ZI or 110ZIA, that the resident’s guardian or enduring guardian or the person responsible for the resident as a patient under the GAA Act section 110ZD is informed of the treatment.

Part 6 — Functions of CEO

18. CEO’s functions as to residents

While a person is required under the CLMI Act to be detained in a declared place —

(a) the person is taken to be in the custody of the CEO; and

(b) the CEO is responsible for the person’s welfare and safe custody.

[Section 18 inserted: No. 10 of 2023 s. 327.]

19. CEO’s functions as to declared places

(1) Subject to the control of the Commission, the CEO is responsible to the Commission for the proper operation, control, management and security and for the good order of each declared place.

(2) If a resident dies, or is absent without leave from a declared place, the CEO must as soon as practicable notify the resident’s enduring guardian or guardian and the Commission, the Tribunal and the Commissioner of Police.

(3) For the purposes of subsection (2), a resident is absent without leave from a declared place if the resident —

(a) is away from the place other than under a leave of absence order as defined in the CLMI Act section 9(1); or

(b) having been away from the place under a leave of absence order, fails to return to the place or another place in which the resident is required to be detained when the leave of absence order expires or is cancelled.

(4) If a resident is absent from a declared place because he or she is receiving medical treatment elsewhere the CEO must as soon as practicable notify the resident’s enduring guardian or guardian.

(5) The CEO must as soon as practicable notify the Commission after the occurrence of an accident, serious irregularity or other unusual event that adversely affects the good order or security of a declared place.

(6) This section does not affect the obligations that the CEO has under the Coroners Act 1996 as a person who holds a resident in care.

[Section 19 amended: No. 10 of 2023 s. 328.]

20. Delegation of CEO’s functions

(1) The CEO may delegate to another person, whether or not the person is a public service officer, any power or duty of the CEO under another provision of this Act but subject to subsection (6).

(2) The delegation must be in writing signed by the CEO but, in an emergency, may be done orally, in which case it must be confirmed subsequently in writing.

(3) The delegation may expressly authorise the delegate to further delegate the power or duty.

(4) A person exercising or performing a power or duty that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5) This section does not limit the ability of a person to perform a function through an officer or agent.

(6) The CEO cannot delegate a function that the CEO has under a provision of this Act set out in the Table to a person who is or that is —

(a) a contractor or an employee or agent of a contractor; or

(b) a subcontractor or an employee or agent of a subcontractor.

Table

Provision	Function
s. 14(1)	Reviewing individual development plans
s. 15(2)	Receiving reports about suspicions of reportable incidents
s. 42	Ensuring chief advocate receives information about use of regulated behaviour management
s. 43(1), (2)	Ensuring review of use of regulated behaviour management
s. 49(1)	Preparing, delivering annual reports on contractors
s. 57(1), (2)	Giving information, reports to the Tribunal
s. 58(1), (2)	Requesting the provision of information or giving information on request

[Section 20 amended: No. 10 of 2023 s. 329.]

Part 7 — Management of declared places

21. Terms used

In this Part, unless the contrary intention appears —

intoxicant means any of the following —

(a) alcohol;

(b) a drug capable of intoxicating a person;

(d) any other substance capable of intoxicating a person;

prohibited thing, in relation to a declared place, means anything that —

(a) is an intoxicant; or

(b) might reasonably be a threat to the security or good order of the place or to the health or safety of any person in the place; or

(c) is prescribed by regulation as being not permitted in the place or is not permitted in the place except under conditions prescribed by regulation.

22. Powers to control and manage declared places

The CEO may do any or all of the following for the purpose of controlling and managing a declared place —

(a) prevent people entering the place;

(b) refuse entry to the place by a person carrying any prohibited thing;

(c) search any person who wishes to enter, or is in, the place and anything the person is carrying if there is a reasonable suspicion that a prohibited thing is on, or being carried by, the person;

(d) refuse entry to, or remove from, the place a person who does not consent to a search under paragraph (c);

(e) search anything in the place that is not being carried by a person;

(f) seize any prohibited thing found during a search or in the place.

23. General powers in relation to residents

The CEO may do any or all of the following for the purpose of detaining a resident in a declared place or of controlling or managing a resident, whether the resident is at the time in or outside the place —

(a) give the resident reasonable orders and enforce them;

(b) search the resident, the resident’s property and any room or other place occupied or used by the resident;

24. Searching people and seizing things

(1) This section applies to any search of a person done, and to anything seized, under section 22 or 23.

(2) The searcher must, if practicable, be a person of the same gender as the person being searched if the person being searched is an adult.

(3) If the person being searched is not an adult —

(a) the searcher must be a person of the same gender as the person being searched; and

(b) another adult must be present during the search.

(4) The searcher may do all or any of these things —

(a) scan the person with an electronic or mechanical device, whether hand held or not, to detect any thing;

(b) remove the person’s headwear, gloves, footwear or outer clothing (such as a coat or jacket), but not the person’s inner clothing or underwear, in order to facilitate a frisk search;

(d) search any article removed under paragraph (b).

(5) The searcher may do any or all of these things for the purpose of conducting the search —

(a) search any thing being carried by, or under the immediate control of, the person;

(b) order the person to remove any thing that might injure the person conducting the search from any article that the person is wearing;

(d) order the person to do anything reasonable to facilitate the exercise by the person conducting the search of any power in this section.

(6) The search must be conducted as follows —

(a) the search must be done as quickly as is reasonably practicable;

(b) the search must not be any more intrusive than is reasonably necessary in the circumstances;

(c) if the person conducting the search proposes to remove any article that the person is wearing, the person conducting the search must tell the person why it is considered necessary to do so;

(d) the person must be allowed to dress as soon as the search is finished;

(e) the person must be provided with a reasonably adequate replacement for any article of clothing or footwear seized if, due to the seizure, the person is left without adequate clothing or footwear in the circumstances.

(7) A seized thing —

(a) must be kept in safe custody and returned to the person from whom it was seized when the person leaves the declared place; or

(b) if an intoxicant, may be destroyed unless it is a drug prescribed for the person from whom it was seized; or

(8) The CEO must ensure a record is kept of things seized and dealt with under this Act.

Part 8 — Regulation of behaviour management

Division 1 — Behaviour management medication

25. Terms used

In this Division —

authorisation, under section 30 or 34, includes an authorisation as varied from time to time;

behaviour management medication means medication for the primary purpose of controlling a resident’s behaviour but does not include medication for the resident’s health care;

doctor means a person who is registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession;

nurse means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing profession —

(a) whose registration under that Law is endorsed as nurse practitioner; or

(b) whose name is entered on Division 1 of the Register of Nurses kept under that Law as a registered nurse;

work, in a declared place, means to provide services at the place —

(a) under a contract of service or a contract for services; or

(b) voluntarily.

[Section 25 amended: No. 4 of 2018 s. 109.]

26. Administration of behaviour management medication

(1) A doctor must not prescribe medication for the primary purpose of controlling a resident’s behaviour unless satisfied that —

(a) it is in the best interests of the resident to do so; or

(b) it is the least restrictive way to protect the resident’s health and safety or to protect others.

(2) A person must not administer behaviour management medication to a resident unless —

(a) a doctor prescribes the medication for the primary purpose of controlling the resident’s behaviour; and

(b) the person administering the medication is —

(i) a doctor; or

(ii) a nurse acting under the direction of a doctor;

and

(c) the medication is administered in accordance with the prescribing doctor’s directions, including directions about the dose, route and frequency of the medication and any restrictions on its use; and

(d) the person administering the medication is satisfied that the resident will be observed in accordance with the prescribing doctor’s directions.

(3) Sections 40 and 41(1) apply in relation to behaviour management medication.

27. Records of behaviour management medication

(1) The CEO must ensure that details of any medication prescribed for a resident as behaviour management medication are included in —

(a) the resident’s file; and

(b) the resident’s individual development plan.

(2) A person who administers, or directs the administration of, behaviour management medication to a resident must ensure that the following details are recorded in the resident’s file —

(a) the name and amount of the medication administered;

(b) the time or times at which it was administered and the reason for administering it at each time;

(d) the person who prescribed it and the time and date of prescription;

(e) if the medication was prescribed to be administered as and when needed, the circumstances in which it was administered;

(f) the name of each person who made each observation of the resident after the medication was administered, whether in accordance with or in addition to the prescribing doctor’s directions, and the date, time, duration and results of each observation;

(g) the name of the person who reviewed the resident’s health and welfare under section 41(2)(a) and the date, time, duration and results of the review;

(h) any other information prescribed by regulation.

Division 2 — Restraint

28. Term used: restraint

In this Division —

restraint means using bodily force or a device to physically prevent the free movement of the body or a part of the body of a resident for the primary purpose of controlling the resident’s behaviour but does not include —

(a) the provision of physical support or assistance in daily living activities; or

(b) the use of a surgical or medical appliance for the proper treatment of physical disease or injury.

29. Approval of restraint devices

The CEO must —

(a) approve the devices that may be used for the restraint of residents; and

(b) specify the approved devices in a policy or procedure issued to each declared place.

30. Restraint to be authorised

(1) The CEO may authorise the use of restraint on a resident, and vary an authorisation, but only —

(a) after having regard to the resident’s individual development plan; and

(b) if satisfied it is the least restrictive way to protect the resident’s health and safety or to protect others; and

(2) The authorisation must be in writing given to each person whose duties are or include controlling or managing the resident and state the following —

(a) each type of restraint authorised to be used;

(b) the reasons for the restraint;

(d) the maximum period or periods for which the restraint may be used;

(e) the intervals at which the resident must be observed while restrained, which must not be longer than 15 minutes;

(f) any special measures necessary to ensure the resident’s proper care and support while restrained;

(g) the date and time the authorisation is made and its duration;

(h) any other information prescribed by regulation.

31. Restraint to be in accordance with authorisation

(1) A person must not use restraint on a resident unless —

(a) the person does so in accordance with an authorisation under section 30; or

(b) in an emergency, it is not practicable to get an authorisation and the person notifies the CEO, as soon as practicable afterwards, of the restraint used, the reasons for using it and the reasons for not getting the authorisation.

(2) Sections 40 and 41(1) apply in relation to restraint.

(3) A person whose duties are or include controlling or managing a resident must immediately remove a restraint from the resident if —

(a) the person is satisfied care and support can be safely provided to the resident without the restraint; or

(b) the CEO orders the person to remove the restraint.

32. Records about restraint

The CEO must ensure that —

(a) a copy of an authorisation under section 30 is included in the resident’s file; and

(b) the following details are recorded in the resident’s file —

(i) each type of restraint used on the resident, whether under an authorisation, by way of emergency or in any other circumstance;

(ii) if the authorisation states any restriction on the circumstances in which a restraint may be used, the circumstances in which the restraint was used;

(iii) the time or times at which each restraint was applied and the reason for doing so at each time;

(iv) each person who applied each restraint;

(v) the duration of each restraint;

(vi) if the restraint was by way of a device, the person who removed the restraint;

(vii) the name of each person who made each observation of the resident while the restraint was used and the date, time, duration and results of each observation;

(viii) the name of the person who reviewed the resident’s health and welfare under section 41(2)(b) and the date, time, duration and results of the review;

(ix) if the restraint was used in an emergency, the time at which the CEO was notified under section 31(1)(b), and the matters notified;

(x) any other information prescribed by regulation.

Division 3 — Seclusion

33. Term used: seclusion

In this Division —

seclusion means the confinement of a resident at any time of the day or night alone in a room or area from which the resident’s free exit is prevented for the primary purpose of controlling a resident’s behaviour but does not include locking a resident’s bedroom door at night for security purposes.

34. Seclusion to be authorised

(1) The CEO may authorise the placing of a resident in seclusion and the return of a resident to seclusion, and vary an authorisation, but only —

(a) after having regard to the resident’s individual development plan; and

(b) if satisfied that seclusion is necessary to protect the resident or other people from imminent physical harm; and

(c) if satisfied that seclusion is the least restrictive way to protect the resident’s health and safety or to protect others.

(2) The authorisation must be in writing given to each person whose duties are or include controlling or managing the resident and state the following —

(a) the reasons for the seclusion;

(b) the date and time the authorisation is made and its duration;

(c) the maximum period or periods of the resident’s seclusion, each of which must not be longer than the period, if any, prescribed by regulation;

(d) any special measures necessary to ensure the resident’s proper care and support while secluded;

(e) whether the resident is to be continually observed while secluded or, if not, the intervals at which the resident must be observed while secluded, which must not be longer than 15 minutes;

(f) any other information prescribed by regulation.

35. Seclusion to be in accordance with authorisation

(1) A person must not place a resident in seclusion or return a resident to seclusion unless —

(a) the person does so in accordance with an authorisation under section 34; or

(b) in an emergency, it is not practicable to get an authorisation and the person notifies the CEO, as soon as practicable afterwards, of the seclusion, the reasons for the seclusion and the reasons for not getting the authorisation.

(2) Sections 40 and 41(1) apply in relation to seclusion.

(3) A person whose duties are or include controlling or managing a resident must immediately remove a resident from seclusion if —

(a) the person is satisfied that the resident’s seclusion is no longer necessary; or

(b) the CEO orders the person to remove the resident from seclusion.

36. Records about seclusion

The CEO must ensure that —

(a) a copy of an authorisation under section 34 is included in the resident’s file; and

(b) the following details are recorded in the resident’s file —

(i) each time at which the resident is placed in, released from, and returned to, seclusion, whether under an authorisation, by way of emergency or in any other circumstance;

(ii) each person who placed the resident in, released the resident from, and returned the resident to, seclusion;

(iii) the reasons for each release from, or return to, seclusion;

(iv) the name of each person who made each observation of the resident during seclusion and the date, time, duration and results of each observation;

(v) the name of the person who reviewed the resident’s health and welfare under section 41(2)(c) and the date, time, duration and results of the review;

(vi) if the resident was placed in, or returned to, seclusion in an emergency, the time at which the CEO was notified under section 35(1)(b), and the matters notified;

(vii) any other information prescribed by regulation.

Division 4 — General provisions about regulated behaviour management

37. Term used: regulated behaviour management

In this Division —

regulated behaviour management means any of the following —

(a) behaviour management medication as defined in section 25;

(b) restraint as defined in section 28;

38. Police officers’ powers not affected

This Part does not apply to a police officer acting in the course of duty.

39. Consent not required

It is not necessary to obtain a resident’s consent to the use, under this Part, of regulated behaviour management in the resident’s case.

40. General restrictions on regulated behaviour management

Regulated behaviour management —

(a) must not involve the use of more force than is reasonable; and

(b) must not involve the use of more measures than is reasonable; and

(d) must not be used for longer than is necessary; and

(e) may be used whether the resident is in or outside a declared place unless to do so is inconsistent with an authorisation under section 30 or 34.

41. Welfare of residents during and after regulated behaviour management

(1) During the use of regulated behaviour management in a resident’s case, the resident must have —

(a) sufficient food and fluids; and

(b) sufficient bedding and clothing; and

(d) access to medication prescribed for the resident for medical treatment.

(2) The CEO must ensure that as soon as practicable after, but not more than 2 hours after —

(a) a resident is administered behaviour management medication; or

(b) the removal of a restraint from a resident; or

the resident’s health and welfare are reviewed by a person who, in the opinion of the CEO, is suitably qualified or experienced to do so.

42. Chief advocate to receive information about regulated behaviour management

The CEO must ensure that, every 3 months, each document included, and the information recorded, in a resident’s file under section 27, 32 or 36 within that period are provided to the chief advocate.

43. Review of use of regulated behaviour management

(1) The CEO must ensure that, every 3 months and any other time as directed by the CEO, the use of regulated behaviour management on any resident is reviewed by a person who, in the opinion of the CEO, is suitably qualified or experienced to do so.

(2) The CEO must ensure that —

(a) the review addresses the appropriateness or otherwise of the use and any further use of regulated behaviour management on each resident who is the subject of the review; and

(b) there is recorded in the file of each resident who is a subject of the review, details of the review relating to the resident.

Part 9 — Contracts for declared place services

44. Contracts for declared place services

(1) The CEO may, for and on behalf of the Commission, enter into a contract with a person for the person to operate, control, manage and ensure the security and good order of a declared place.

(2) The functions that can be performed under a contract are subject to section 20(6).

(3) Subsection (1) does not affect —

(a) the powers that the Commission has under the Disability Services Act 1993 section 12A(1); or

(b) the constraints on the exercise of those powers under section 12A(2) of that Act; or

45. Minimum matters to be included in contracts

A contract under section 44 must provide for all of the following —

(a) compliance by the contractor, any subcontractor and their employees and agents with this Act and other relevant written laws;

(b) compliance by the contractor with the obligations that the contractor has under the Coroners Act 1996 as a person who holds a resident in care;

(d) fees, costs and charges to be paid to and by the contractor;

(e) compliance by the contractor, any subcontractor and their employees and agents with the minimum standards established under section 46 in relation to the provision of the declared place services;

(f) the submission of reports in relation to the contractor’s obligations under the contract;

(g) notification by the contractor of any change in the control, management or ownership of —

(i) the contractor; or

(ii) a subcontractor, or a member of a class of subcontractors, specified in the contract for the purposes of this paragraph by the CEO;

(h) the circumstances in which the CEO can intervene in, or suspend or terminate, a contract and requisition property in the case of a terminated contract, and the financial and other consequences of doing so;

(i) codes of ethics and conduct, as approved by the CEO, to apply to the contractor, any subcontractor and their employees and agents;

(j) reporting procedures to notify the CEO of the following —

(i) the death of a resident;

(ii) a resident being absent without leave;

(iii) a resident being absent from a declared place because he or she is receiving medical treatment elsewhere;

(iv) the occurrence of an accident, serious irregularity or other unusual event that adversely affects the good order or security of a declared place;

(k) investigation procedures and dispute resolution mechanisms for complaints about the provision of the declared place services;

(l) an indemnity by the contractor in favour of the Commission;

(m) the office the holder of which is to be the principal officer of the contractor and the subcontractors under the relevant contract for the purposes of the Children and Community Services Act 2004, the Corruption and Crime Commission Act 2003, the Freedom of Information Act 1992 and the Parliamentary Commissioner Act 1971;

(n) any other matter prescribed by regulation.

46. Minimum standards

(1) The CEO must establish minimum standards applicable to the provision of declared place services and the CEO may vary the minimum standards.

(2) The Minister must, within 14 days after the minimum standards are established or varied, cause a copy of the standards or the variation to be laid before each House of Parliament or dealt with under section 62.

47. Penalty for breach

(1) A contract under section 44 may provide for a party to the contract to be liable to pay an amount determined under the contract, by way of penalty, in respect of a breach of the contract.

(2) The contract may provide for an increase in the amount of the penalty because of each day or part of a day during which a breach continues.

(3) A penalty provided for in accordance with this section is recoverable even though no damage may have been suffered or the penalty may be unrelated to the extent of any damage suffered.

48. Access to certain declared places, persons and documents

(1) The Commission, the CEO and any person authorised by the CEO have free and unfettered access at any time to a declared place, person or document referred to in subsection (2) for the purpose of —

(a) ensuring compliance with this Act or a contract under section 44; or

(b) ensuring that declared place services are being properly provided.

(2) A person referred to in subsection (1) has access to —

(a) a declared place at which declared place services are provided under a contract under section 44 or any part of the declared place; and

(b) each resident in the declared place; and

(d) each document in the possession or control of the contractor or a subcontractor in relation to a declared place service for the declared place.

(3) The CEO may authorise a person for the purposes of subsection (1).

(4) An authorisation must be in writing and may be made subject to such conditions and limitations specified in the authorisation as the CEO thinks fit.

(5) A person must not hinder a person referred to in subsection (1) when the person is exercising or attempting to exercise a power under that subsection.

Penalty: a fine of $20 000.

(6) This section does not limit any entitlement that a person has under a law to access a place, person or document referred to in subsection (2).

49. Annual reports and tabling of contracts

(1) The CEO must prepare and deliver to the Minister by 30 September each year a report on each contractor who provided declared place services in the preceding 12 months.

(2) The report must contain such information as is required to be included in the report by the Minister to enable an informed assessment to be made of —

(a) the operations of each contractor; and

(b) the extent to which there has been compliance with each contract.

(3) The Minister must, within 14 days after receiving a report, cause a copy of the report to be laid before each House of Parliament or dealt with under section 62.

(4) The Minister must, within 14 days after a contract or a variation to a contract is executed, cause a copy of the contract or the variation to be laid before each House of Parliament or dealt with under section 62.

50. No contracting out

The provisions of this Part apply despite anything to the contrary in a contract.

Part 10 — Advocacy services for residents

51. Terms used

In this Part —

advocate —

(a) if the Mental Health Act 1996 Part 9 is in operation, means a member of the Council of Official Visitors established under section 176 of that Act; or

(b) if the Mental Health Act 1996 Part 9 is no longer in operation, means a person belonging to a class of persons prescribed by regulation;

chief advocate —

(a) if the Mental Health Act 1996 Part 9 is in operation, means the Head of the Council of Official Visitors appointed under section 177(1)(a) of that Act; or

(b) if the Mental Health Act 1996 Part 9 is no longer in operation, means the person prescribed by regulation.

52. Residents’ rights as to visits or other contact

(1) The CEO must inform the chief advocate of the arrival of a new resident as soon as practicable but no later than 48 hours after the resident arrives at a declared place.

(2) The chief advocate is to ensure that each resident is visited or otherwise contacted by an advocate —

(a) within 7 days of the resident’s arrival at a declared place; and

(b) as soon as practicable after the resident, or a person on the resident’s behalf, requests the CEO or an advocate to arrange for the resident to be visited or otherwise contacted by an advocate, and in any event, within 72 hours after that time; and

(3) A resident has these rights —

(a) the right to decline to be visited or otherwise contacted by an advocate;

(b) to not consent, or to withdraw consent, to an advocate’s having access to the records of a declared place about the resident.

53. Advocate functions

Each advocate has these functions —

(a) visiting or otherwise contacting residents in accordance with section 52;

(b) acting as the personal advocate of residents to safeguard their health and safety and foster their development;

(d) monitoring the use of regulated behaviour management;

(e) inquiring into or investigating any matter relating to an environmental condition of a declared place that is adversely affecting, or is likely to adversely affect, the health, safety or wellbeing of residents;

(f) inquiring into or investigating the extent to which explanations of the rights of residents have been given in accordance with section 8(1), (2), (3) and (4) and the extent to which those rights are being, or have been, observed;

(g) assisting residents to protect and enforce their rights referred to in section 8(1);

(h) inquiring into, and seeking to resolve, complaints made to advocates about the management or care of residents;

(i) assisting a resident to make a complaint to the person who operates the declared place;

(j) assisting a resident to make a complaint under the Disability Services Act 1993 Part 6;

(k) being a resident’s representative in respect of a complaint if recognised as the resident’s representative under the Disability Services Act 1993 section 32(2);

(l) liaising with the resident’s enduring guardian, guardian or administrator (as defined in the CLMI Act section 9(1));

(m) assisting residents to access legal services;

(n) referring any issues arising out of the performance of a function of the advocate to the appropriate person to deal with those issues, including to the chief advocate, if the advocate cannot resolve the issue or otherwise considers it appropriate to refer the matter;

(o) the functions given under other provisions of this Act, including participating in the planning and provision of services received by residents and the preparation of individual development plans.

[Section 53 amended: No. 10 of 2023 s. 330.]

54. Advocate powers

(1) In this section —

work, in a declared place, means to provide services at the place under a contract of service or a contract for services.

(2) An advocate may do anything necessary or convenient for the performance of the advocate’s functions under this Act.

(3) The performance of any function under this Act of an advocate is subject to the direction of the chief advocate.

(4) An advocate may, with or without notice, at any time, and for any length of time, do these things —

(a) visit a declared place and inspect any part of the place;

(b) visit, or otherwise have contact with, any one or more residents, except a resident who has declined to be contacted by an advocate.

(5) An advocate may ask a person who works at a declared place questions about any of these matters —

(a) the welfare, health, care, training, safety, management or security of any resident;

(b) the operation, control, management, security and good order of a declared place, but only to the extent to which the matter is relevant to a matter mentioned in paragraph (a).

(6) An advocate may inspect and copy any document at a declared place relating to the place.

(7) An advocate who is visiting or otherwise contacting a resident may inspect and copy any of the following documents, wherever held, except a document to which the advocate has been denied access by the resident —

(a) the resident’s individual development plan;

(b) any other document included, and the information recorded, in the resident’s file;

(d) any other document in the possession or control of the person who operates the declared place that relates to the resident.

(8) An advocate may require a person who works at a declared place to give reasonable assistance to the advocate for the purpose of the performance of the advocate’s functions under this Act.

55. Offences

(1) A person who is asked a question by an advocate under section 54(5) must answer the question.

Penalty: a fine of $6 000.

(2) A person who is asked a question by an advocate under section 54(5) must not give an answer that the person knows is, or has reckless disregard as to whether the answer is, false or misleading in a material particular.

Penalty: a fine of $6 000.

(3) A person must not fail without reasonable excuse (proof of which is on the person) to give assistance that is required under section 54(8).

Penalty: a fine of $6 000.

(4) A person must not, without reasonable excuse (proof of which is on the person), hinder an advocate in the performance of the advocate’s functions under this Act.

Penalty: a fine of $6 000.

(5) An individual is not excused from complying with subsection (1) or (3) on the ground that the answer to a question or the provision of assistance might tend to incriminate the individual or expose the individual to a criminal penalty.

(6) If an individual complies with subsection (1) or (3) neither —

(a) an answer given by the individual that was given to comply with subsection (1); or

(b) the fact that the assistance given by the individual to comply with subsection (3) was given,

is admissible in evidence in any criminal proceedings against the individual other than proceedings for perjury or for an offence under subsection (2).

56. Advocate reports

(1) The functions in this section are in addition to the function referred to in section 53(n).

(2) An advocate who considers that a matter should be considered by the CEO may report the matter to the CEO.

(3) As soon as practicable after the end of a financial year, the chief advocate must report to the Minister on the activities of all advocates during that year.

(4) The Minister is not entitled to have information under this section in a form that —

(a) discloses the identity of a resident; or

(b) might enable the identity of a resident to be ascertained,

unless the resident or the resident’s enduring guardian or guardian has consented to the disclosure.

(5) The Minister must, within 14 days after receiving a report, cause a copy of the report to be laid before each House of Parliament or dealt with under section 62.

Part 11 — Miscellaneous matters

57. Provision of information about residents: Tribunal and CEO

(1) The Tribunal and the CEO may give each other information that is relevant to the welfare, health, care, training, safety, management or security of a resident.

(2) The CEO must, on the written request of the Tribunal, prepare and give the Tribunal a report about any matter that relates to —

(a) the welfare, health, care, training, safety, management or security of a resident; or

(b) any function the Tribunal has under the CLMI Act in relation to a resident.

[Section 57 amended: No. 10 of 2023 s. 331.]

58. Provision of information about residents: CEO and others

(1) The following persons may, on the written request of the CEO, give the CEO information that relates to a resident’s welfare, health, care, training, safety, management or security —

(a) a public sector body as defined in the Public Sector Management Act 1994 section 3(1);

(b) the Commissioner of Police;

(d) the person in charge of an authorised hospital in which the resident has been detained;

(e) a person who takes charge of a resident for the purpose of moving the resident to or from a declared place;

(f) a contractor or a subcontractor that is or has been responsible for the resident under a contract under section 44.

(2) The CEO may, on the written request of any of the following persons, give the person information that relates to a resident’s welfare, health, care, training, safety, management and security —

(a) the Public Advocate, as defined in the GAA Act section 3(1), for the purposes of performing functions under the GAA Act sections 97 and 98;

(b) the Commissioner of Police;

(c) the chief executive officer of the department of the Public Service principally assisting the Minister responsible for the administration of the Children and Community Services Act 2004, the Court Security and Custodial Services Act 1999, the Prisons Act 1981 or the Young Offenders Act 1994;

(d) a superintendent of a prison or detention centre in which the resident has been, or is to be, detained;

(e) the person in charge of an authorised hospital in which the resident has been, or is to be, detained;

(f) a person who takes charge of a resident for the purpose of moving the resident to or from a declared place.

59. Confidentiality of information about residents

(1) A person must not, directly or indirectly, record, use or disclose information that relates to a resident and that was obtained by the person when performing a function under this Act or in the course of duty in the provision of declared place services.

Penalty: a fine of $2 500.

(2) Subsection (1) does not apply to the recording, use or disclosure of information —

(a) for the purpose of performing a function that the person has or had under this Act; or

(b) for the purpose of providing declared place services; or

(d) under the order of a court or a person acting judicially; or

(e) for the purpose of proceedings before the State Administrative Tribunal commenced under the GAA Act; or

(f) for the purpose of giving information to a law enforcement body in connection with an offence allegedly committed by or against a resident; or

(g) in the public interest to protect the physical safety of an individual; or

(h) if the information is personal information, with the consent of the person or the person’s enduring guardian or guardian; or

(i) in circumstances prescribed by regulation.

(3) A person does not, by giving information under section 57(1) or by complying with a request made under section 57(2) or 58(1) or (2) —

(a) incur civil or criminal liability in respect of the disclosure; or

(b) breach any duty of confidentiality or secrecy imposed by any law; or

(c) commit unprofessional conduct or breach professional ethics or standards or any principles of conduct applicable to a person’s employment.

60. Reports about declared places

The CEO must include in the Commission’s annual report required under the Financial Management Act 2006 Part 5 a report on these matters for the relevant financial year in relation to each declared place —

(a) the operations of the place;

(b) the number of people admitted to the place as residents;

(d) any other matter prescribed by regulation.

61. Protection from personal liability

(1) In this section, a reference to the doing of anything includes a reference to the omission to do anything.

(2) An action in tort does not lie against a person (except a contractor or a subcontractor) for anything that the person has done, in good faith —

(a) when performing or purporting to perform a function under this Act; or

(b) in assisting a person to perform or purportedly perform a function under this Act.

(3) The protection given by subsection (2) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act had been enacted.

(4) Despite subsection (2), the State, a contractor or a subcontractor is not relieved of any liability that the State, the contractor or the subcontractor might have for another person having done something as described in that subsection.

62. Laying documents before Parliament

(1) If section 46(2), 49(3) or (4) or 56(5) requires the Minister to cause the a copy of a document to be laid before each House of Parliament, or dealt with under this section, within a period and —

(a) at the commencement of the period, a House of Parliament is not sitting; and

(b) the Minister is of the opinion that the House will not sit during that period,

the Minister must transmit a copy of the document to the Clerk of that House.

(2) A copy of a document transmitted to the Clerk of a House is to be regarded as having been laid before that House.

(3) The laying of a copy of a document that is to be regarded as having occurred under subsection (2) must be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy.

63. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to this Act.

(2) The regulations prescribe or adopt standards that apply to people when performing functions under this Act in relation to residents.

64. Review of this Act

(1) The Minister must review the operation and effectiveness of this Act as soon as practicable after —

(a) the third anniversary of the day on which this section comes into operation; and

(b) each 5 year period after that anniversary.

(2) The Minister must cause a report on each review to be laid before each House of Parliament as soon as practicable after the review is done.

Part 12 — Transitional provisions for Criminal Law (Mental Impairment) Act 2023

[Heading inserted: No. 10 of 2023 s. 332.]

65. Terms used

In this Part —

Board means the Mentally Impaired Accused Review Board established under the Criminal Law (Mentally Impaired Accused) Act 1996 section 41;

commencement day means the day on which the CLMI Act Part 2 comes into operation.

[Section 65 inserted: No. 10 of 2023 s. 332.]

66. Provision of information about residents

(1) Subsection (2) applies if the CEO —

(a) was required to prepare and give a report to the Board under section 57(2) as in force before commencement day; and

(b) did not give the report to the Board before commencement day.

(2) The CEO must prepare and give the report to the Tribunal.

[Section 66 inserted: No. 10 of 2023 s. 332.]

[Div. 1‑3 (s. 67‑89) deleted: No. 10 of 2023 s. 332.]

View image in the official source

Notes

This is a compilation of the Declared Places (Mentally Impaired Accused) Act 2015 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table.

Compilation table

Short title	Number and year	Assent	Commencement
Declared Places (Mentally Impaired Accused) Act 2015 1	4 of 2015	3 Mar 2015	s. 1 and 2: 3 Mar 2015 (see s. 2(a)); Act other than s. 1 and 2: 17 Jun 2015 (see s. 2(b) and Gazette 16 Jun 2015 p. 2071)
Health Practitioner Regulation National Law (WA) Amendment Act 2018 s. 109	4 of 2018	19 Apr 2018	1 Dec 2018 (see s. 2(d) and Gazette 13 Nov 2018 p. 4427‑8)
Criminal Law (Mental Impairment) Act 2023 Pt. 15 Div. 11	10 of 2023	13 Apr 2023	1 Sep 2024 (see s. 2(b) and SL 2024/175 cl. 2)

Other notes

1 Now known as the Declared Places (Mental Impairment) Act 2015; short title changed (see note under s. 1).

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

absent without leave 19(3)

adult 3

advocate 3, 51

authorisation 25

authorised hospital 3

behaviour management medication 24(8)

Board 65

carer 3

CEO 3

chief advocate 3, 50

CLMI Act 3

commencement day 65

Commission 3

contractor 3

declared place 3

declared place services 3

detention centre 3

doctor 25

enduring guardian 3

GAA Act 3

guardian 3

ill-treat 16(1)

individual development plan 3

intoxicant 21

nurse 25

person responsible 16(1)

prison 3

prohibited thing 21

regulated behaviour management 3, 37

reportable incident 15(1)

resident 3

restraint 28

seclusion 33

subcontractor 3

supervised person 3

treatment 17(1)

treatment decision 17(1)

Tribunal 3

work 15(1), 25, 54(1)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Declared Places (Mental Impairment) Act 2015

Western Australia

Declared Places (Mental Impairment) Act 2015

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Act binds Crown 4

Part 2 — Principles and objectives

Principles applicable to residents 5
Objectives for programmes and services 5

Part 3 — Residents’ rights

Rights under other laws 7
Explanation of resident’s rights 7
Freedom of lawful communication 7
Restricting freedom of communication 8

Part 4 — Individual development plans

Residents to have individual development plans 10
Preparation, review, change of individual development plan 10
Content of individual development plans 11
Review of individual development plans 12

Part 5 — Protection of residents

Certain incidents to be reported 14
Residents not to be ill‑treated 14
Treatment decisions on behalf of residents 15

Part 6 — Functions of CEO

CEO’s functions as to residents 17
CEO’s functions as to declared places 17
Delegation of CEO’s functions 18

Part 7 — Management of declared places

Terms used 20
Powers to control and manage declared places 20
General powers in relation to residents 21
Searching people and seizing things 21

Part 8 — Regulation of behaviour management

Division 1 — Behaviour management medication

The Act organises around a set of interlocking concepts that determine duties, powers and constraints. The principal statutory concepts are:

Resident and declared place: “resident” is defined in s 3 as a supervised person detained under the CLMI Act in a declared place, and “declared place” requires two elements: a place declared under CLMI Act s 60 and control/management by or on behalf of the Commission (s 3). The connection to the CLMI Act is structural: the Act supplies operational rules for places that hold CLMI detainees.
Principles and objectives: Section 5 lists the paramount considerations (community protection, resident safety, best interests of non‑adult residents) and requires persons acting under the Act to have regard to them. Section 6 sets programme objectives such as dignity, non‑discrimination, empirical evidence, reoffending reduction, independence and culturally appropriate services for Aboriginal and Torres Strait Islander residents (s 6(1)-(6)).
Individual Development Plans (IDPs): The IDP is the operational centrepiece for each resident. The CEO must ensure an IDP is prepared for each resident (s 11), based on assessment by two or more people from different disciplines (s 12(1)), and must include prescribed content (s 13). Reviews are mandatory within six months and then at least annually, and on resident request if circumstances change (s 14).
Regulated behaviour management: This umbrella term (s 37) covers behaviour management medication, restraint and seclusion. Each has a statutory definition (ss 25, 28, 33) and parallel regimes that require written authorisations by the CEO in non‑emergency cases (ss 30, 34), strict limits on reasonableness, necessity and least restrictiveness (s 40), maximum observation intervals not longer than 15 minutes (ss 30(2)(e), 34(2)(e)), and detailed records (ss 27, 32, 36). Emergency use is permitted but must be notified to the CEO as soon as practicable (ss 31(1)(b), 35(1)(b)).
CEO centrality and delegation limits: The CEO is made responsible for welfare and safe custody while a person is detained in a declared place (s 18) and for operation, control and security of declared places (s 19). The CEO may delegate many functions (s 20) but cannot delegate certain listed functions to contractors or their agents or subcontractors (s 20(6) and Table). The non‑delegable functions include review of IDPs (s 14(1)), receiving reportable incident reports (s 15(2)), ensuring the chief advocate receives regulated behaviour management information (s 42), and ensuring reviews of regulated behaviour management (s 43(1)-(2)), among others.
Outsourcing with statutory controls: Section 44 permits the CEO to contract for operation and management of declared places, but the Act sets mandatory contractual content (s 45), minimum standards (s 46), a requirement of CEO‑established minimum standards and parliamentary tabling when varied (s 46(2)), and a no‑contracting‑out rule (s 50) making statutory obligations overriding contractual terms.
Advocacy and inspection: The Act creates an advocacy mechanism (Pt 10). The chief advocate must be notified of new residents (s 52(1)); advocates must visit residents promptly and at least quarterly (s 52(2)); advocates have broad inspection and information powers including compulsion to answer questions and to be provided assistance (s 54) and penalties for non‑compliance (s 55). The Act also imposes obligations to provide routine information to the Tribunal and between the Tribunal and the CEO (s 57) and creates exceptions to confidentiality for specific purposes (s 59(2)).
Reporting, transparency and parliamentary oversight: The CEO must provide quarterly data to the chief advocate about regulated behaviour management records (s 42), commission annual reports on contractors (s 49), and the Minister must table minimum standards and reports within specified timeframes (s 46(2), s 49(3)-(4), s 56(5)). Section 62 prescribes how tabling operates when Parliament is not sitting.

These concepts are implemented as prescriptive procedural duties (IDP content and timing, recordkeeping, observation intervals), discretionary thresholds (CEO satisfaction about least restrictive option in s 30(1)(b) and s 34(1)(b) and (c)), and statutory constraints on delegation and contracting designed to preserve ministerial and CEO accountability while allowing operational outsourcing under specified safeguards.

The Act assigns roles, duties and obligations across a defined set of actors. Who pays, who decides and who must act are set out in the text.

Primary persons directly affected

Residents: defined in s 3 as supervised persons detained under the CLMI Act. Residents are subject to detention and regulated behaviour management regimes; they are entitled to rights including freedom of lawful communication (s 9), explanation of rights (s 8), access to advocates (s 52), and IDPs (s 11).
CEO and the Disability Services Commission: the CEO has custody and welfare responsibility while residents are detained (s 18); the CEO is responsible for operation, control, management and security of declared places subject to Commission control (s 19). The Commission retains overarching control and certain statutory powers under the Disability Services Act are preserved (s 44(3)).

Operational and service providers

Contractors and subcontractors: s 3 defines contractor and subcontractor; s 44 allows the CEO to contract for operation of declared places, and s 45 requires contracts to include extensive compliance, indemnity, reporting and performance obligations. Contractors carry the compliance burden for minimum standards (s 46) and must permit unfettered access to Commission/CEO authorised personnel (s 48). Section 20(6) specifically prevents certain CEO functions being delegated to contractors or their agents, limiting operational delegation.
Staff and persons working at declared places: staff (whether employees, contractors or volunteers) must comply with reporting obligations for reportable incidents (s 15), may be required to assist advocates (s 54(8)) and are subject to search and seizure powers (Pt 7: ss 22-24). Staff who are persons “responsible” for residents (s 16(1)) are criminalised for ill‑treatment (s 16(2)).

Clinical and allied professionals

Doctors, nurses and health professionals: the Act references the Health Practitioner Regulation National Law for definitions (s 25) and imposes rules for the prescription and administration of behaviour management medication: doctors must meet a best interest or least restrictive test before prescribing (s 26(1)); only a doctor or a nurse acting under direction of a doctor may administer such medication (s 26(2)); records of behaviour management medication must be kept (s 27).
Guardians, enduring guardians and carers: defined in s 3 and referenced in IDP consultation (s 12(4)), right to explanations of rights (s 8(2)), and to be notified on death or certain absences (s 19(2)). The CEO may make treatment decisions if no legally permissible decision maker is reasonably available (s 17).

Oversight and external bodies

Chief advocate and advocates: established and defined in Pt 10 (s 51). The chief advocate receives quarterly regulated behaviour management information (s 42) and advocates have powers to visit, inspect and obtain records (s 54).
Tribunal: defined via the CLMI Act cross‑reference in s 3; the CEO and Tribunal may exchange information relevant to a resident’s welfare, and the CEO must provide reports to the Tribunal on request (s 57).
Police and courts: the Act preserves police powers (s 38) and provides for police to be notified of certain matters (s 19(2)). Certain disclosures to law enforcement are exceptions to confidentiality (s 59(2)(f)).
Ministers and Parliament: the Minister receives annual contractor reports from the CEO (s 49) and must lay minimum standards and reports before Parliament within specified time frames (s 46(2), s 49(3)-(4), s 56(5)). The Minister must also commission statutory reviews of the Act on fixed intervals (s 64).

Who pays and bears compliance costs

The State (through the Commission and CEO) retains ultimate financial cost for establishing, maintaining and supervising declared places. Outsourcing transfers some operational costs to contractors, but the Act invests contractors with compliance costs: meeting minimum standards, recordkeeping, allowing inspections, reporting, indemnities and exposure to contractual penalties (ss 45-47). Contractors also face risk of suspension, termination and requisition consequences (s 45(h)).
Clinical professionals and staff must comply with documentation, training and procedural obligations (ss 26, 27, 29-36). Advocates and the chief advocate impose an oversight burden on both the Commission and contractors through inspection and reporting regimes (ss 42-56).

Decision rights and discretion

The CEO has extensive decision rights: authorisation of restraint/seclusion/medication subject to statutory tests (ss 30, 34, 26), making orders restricting communications in prescribed circumstances (s 10) and delegating many powers with specified exceptions (s 20). The Act places procedural constraints on CEO discretion through required written authorisations, IDP tests, observation intervals and mandatory reporting.

In sum, the Act affects detained individuals, the Disability Services Commission and CEO, private contractors and subcontractors operating declared places, clinical staff, advocates, law enforcement, guardians and Parliament. It reallocates operational responsibilities by enabling contracting while preserving statutory controls and non‑delegable functions and imposes detailed compliance, reporting and inspection obligations on those who operate and manage declared places.

The Act prescribes duties for the CEO, contractors, clinicians, advocates and staff, and it creates concrete rights for residents. The following sets out the principal statutory duties and rights with section references.

Residents’ rights and CEO duties to explain and respect them

Explanation obligation: The CEO must ensure each resident is given an explanation of the resident’s rights under this Act, the Freedom of Information Act 1992 and other written law that applies to the declared place (s 8(1)). Where a resident has an enduring guardian or guardian, those persons must also be given explanations and, if the resident is not an adult, the guardian must be given a written explanation (s 8(2)). The CEO must give an explanation in a manner likely to be understood (s 8(4)).
Freedom of lawful communication: A resident has a right to freedom of lawful communication (s 9(2)). The statutory list includes communicating with other residents, sending and receiving uncensored communications, access to advocates, guardians and lawyers at any time, visits and contact with other people, access to mail and telephone services and to newspapers, radio and television (s 9(3)(a)-(f)).
Limits on communication: The CEO may make written orders prohibiting or limiting exercise of rights under s 9 for a specified period, but cannot restrict access to advocates, enduring guardians, guardians or lawyers (s 10(1)-(2)). Orders can only be made where the CEO is satisfied that doing so is in the resident’s best interests, necessary to protect other persons or necessary to ensure proper operation, control, management, security or good order of the declared place (s 10(3)). Orders must be recorded in the place’s records with written reasons and provided to the resident and specified persons (s 10(5)-(6)).

Individual Development Plans (IDPs)

Preparation and content: The CEO must ensure an IDP for each resident (s 11(1)(a)) and manage the resident in accordance with the IDP (s 11(1)(b)). IDPs must promote development, habilitation, rehabilitation, community reintegration where appropriate and provide for management, care, support and protection (s 11(2)). IDPs must be prepared after assessment by two or more suitably qualified persons from different disciplines and after consultation with the resident, advocate, guardian/enduring guardian and integral family members (s 12(1), (4)). Positive behaviour support components must be assessed by a qualified behavioural support specialist (s 12(2)). Required content is extensive and includes medication details, behaviour management strategies, and records of emergency uses of restraint/seclusion (s 13).
Review timetable and access: IDPs must be reviewed before expiry of six months after initial preparation and then every 12 months; residents can request reviews for changed circumstances and may obtain copies on request (s 14).

Regulated behaviour management: medication, restraint and seclusion

Behaviour management medication: Doctors must not prescribe behaviour management medication for the primary purpose of behavioural control unless satisfied it is in the resident’s best interests or the least restrictive way to protect health and safety or others (s 26(1)). Administration is restricted to doctors or nurses acting under doctor direction, must follow the prescribing doctor’s directions and require observation in accordance with those directions (s 26(2)). Records of medication are required in the resident’s file and IDP (s 27).
Restraint: The CEO must approve devices and publish them in policy for declared places (s 29). Restraint requires written CEO authorisation based on IDP consideration and least restrictive criterion; authorisation must specify types, reasons, restrictions, maximum periods, observation intervals (not exceeding 15 minutes), and special care measures (s 30(1)-(2)). Use outside authorisation is allowed in emergencies but must be notified to the CEO as soon as practicable (s 31(1)(b)). Detailed recordkeeping is required (s 32).
Seclusion: The CEO must authorise seclusion in writing and only where seclusion is necessary to protect the resident or others from imminent physical harm and is the least restrictive means (s 34(1)). Authorisations must include reasons, duration, observation intervals (not greater than 15 minutes if not continual), special care provisions and maximum periods (s 34(2)). Emergency use is permitted with prompt CEO notification (s 35(1)(b)); records are required (s 36).

General constraints and welfare duties

Reasonableness, minimal force and duration: Regulated behaviour management must not involve more force or measures than reasonable, must not be more restrictive or intrusive than necessary and must not be used for longer than necessary (s 40(a)-(d)). Welfare during use is mandated: sufficient food and fluids, bedding, access to toilet and to medical medication (s 41(1)). After use, the CEO must ensure health and welfare are reviewed as soon as practicable but not more than two hours after medication administration, removal of restraint, or release from seclusion (s 41(2)).

Reporting, review and oversight

Reporting of incidents: Persons working in declared places who reasonably suspect a “reportable incident” (ill‑treatment, wilful neglect, unlawful sexual contact, unreasonable use of force) have a statutory duty to report to the CEO, nominated persons, the Health and Disability Services Director or police; failing to report attracts a $5,000 fine (s 15(2)).
Review and chief advocate reporting: The CEO must provide quarterly the regulated behaviour management records to the chief advocate (s 42). The CEO must ensure reviews every three months of any regulated behaviour management used and that records of reviews are stored in the resident’s file (s 43).

Delegation and non‑delegable functions

Delegation: The CEO may delegate powers in writing (s 20(1)-(3)) and may authorise further delegation. However, functions listed in the Table to s 20 cannot be delegated to contractors, subcontractors or their employees/agents (s 20(6)). The listed non‑delegable functions include reviewing IDPs, receiving reportable incident reports, ensuring chief advocate data receipts and regular reviews of regulated behaviour management, preparing contractor annual reports, and Tribunal information provision responsibilities.

Contracting, standards and access

Contracting: The CEO may enter contracts for operation and management of declared places (s 44). Contracts must include compliance clauses, minimum standards, reporting, indemnities, codes of conduct and notification of change in control/ownership (s 45). The CEO must establish and lay minimum standards before Parliament (s 46). The Commission/CEO and authorised persons have free and unfettered access to declared places, residents, staff and documents for compliance purposes (s 48); obstruction attracts a $20,000 fine (s 48(5)). The Act expressly preserves statutory requirements despite any contract (s 50).

Advocacy and inspection rights

Advocate powers and resident rights: The chief advocate must be notified of new residents within 48 hours (s 52(1)). Advocates must visit residents within seven days of arrival and at least four times a year (s 52(2)). Advocates may inspect declared places, contact residents, inspect and copy resident files and certain records unless the resident denies access, and require assistance from staff (s 54). Persons asked questions must answer and not provide false or misleading answers (s 55), and failure to assist or obstruction is penalised (s 55).

Information sharing and confidentiality

Information flow: The Tribunal and CEO may exchange information relevant to resident welfare (s 57). The CEO may request information from specified public bodies, police, prison/detention superintendents, authorised hospital persons and contractors (s 58(1)); similar requests by specified persons to the CEO are allowed (s 58(2)). Confidentiality prohibits recording, use or disclosure of resident information obtained under the Act except in enumerated circumstances, including for functions under the Act, declared place services, other law, court orders, State Administrative Tribunal proceedings or public interest to protect safety (s 59(1)-(2)). Section 59(3) provides that giving information under specified sections does not incur civil or criminal liability.

These duties and rights set out a statutory architecture intended to balance community safety, resident welfare and oversight. The Act prescribes procedural safeguards, recordkeeping and reporting, while allowing authorised emergency measures with post‑hoc notification and review. Practitioners should map these duties to operational processes: IDP creation and review, authorisation workflows for regulated behaviour management, clinical prescription and administration protocols, staff training and reporting channels, contractor contracting and oversight clauses, and advocate access procedures.

The Act combines criminal and pecuniary sanctions, administrative enforcement mechanisms, contractual remedies and reporting obligations. Enforcement operates through statutory offences, civil contract remedies, CEO powers and external oversight by advocates, the Tribunal and Parliament. The principal enforcement instruments and sanctions are as follows.

Criminal and pecuniary penalties in the Act

Failure to report a reportable incident: A person who works in a declared place and who reasonably suspects a reportable incident must report the suspicion to specified recipients; failure attracts a penalty of a fine of $5,000 (s 15(2)).
Ill‑treatment: A person responsible for a resident must not ill‑treat the resident (s 16(2)). Breach is an offence punishable by a fine of $24,000 or imprisonment for two years (s 16(2)). The Act defines ill‑treat to include wilful neglect (s 16(1)) and defines “person responsible” broadly to include any person whose duties include caring for, providing services to, supervising, managing or controlling the resident (s 16(1)).
Obstruction of access and failure to assist advocates: Hindering a person exercising inspection powers under s 48(1) attracts a fine of $20,000 (s 48(5)). Offences under s 55 include failure to answer an advocate’s question, giving materially false or misleading answers, failure without reasonable excuse to provide assistance required under s 54(8), and hindering an advocate , each attracts a fine of $6,000 (s 55(1)-(4)). These provisions also limit evidentiary use of compelled answers in criminal proceedings (s 55(5)-(6)).
Confidentiality breaches: Recording, using or disclosing information about a resident obtained under the Act is an offence with a penalty of a fine of $2,500, subject to enumerated exceptions (s 59(1)-(2)).

Administrative and contractual enforcement

CEO powers and administrative controls: The CEO may make written orders limiting resident communications (s 10) but such orders must be justified and recorded with written reasons, creating administrative compliance obligations and reviewability via record disclosure (s 10(5)-(6)). The CEO must ensure periodic reviews of regulated behaviour management (s 43) and quarterly disclosure to the chief advocate (s 42); non‑compliance will attract administrative enquiry and may be raised by advocates (s 56(2)).
Contractual penalties and termination: Contracts entered under s 44 may provide for contractual penalties recoverable even if no damage has occurred (s 47). Contracts must include clauses allowing CEO intervention, suspension or termination and financial consequences, giving the CEO operational leverage (s 45(h)). The Act also requires the CEO to prepare annual reports on contractors’ performance for tabling (s 49).

Oversight, transparency and parliamentary mechanisms

Advocate and tribunal oversight: Advocates have powers to inspect and report, including to the CEO, and the chief advocate must report annually to the Minister on advocate activities (s 56(3)). The CEO must provide information to the Tribunal on request and the Tribunal may provide the CEO with welfare‑related information (s 57). These mechanisms create external oversight channels that can trigger administrative or public accountability.
Parliamentary tabling: Minimum standards established or varied by the CEO must be tabled before each House of Parliament within 14 days (s 46(2)). The CEO’s contractor reports and executed contracts must be delivered to the Minister and tabled within 14 days (s 49(1), (3)-(4)). Section 62 describes the mechanism if Parliament is not sitting.

Practical enforcement dynamics and remedies

Criminal enforcement will be relevant for ill‑treatment (s 16) and serious obstruction or false answering offences (s 55). For other breaches, enforcement will likely be administrative (CEO interventions, contract suspension/termination), statutory reporting to Parliament, and reputational consequences from advocate or parliamentary reports.
Contractors face contractual penalties (s 47), obligations to permit inspections under s 48 and to comply with minimum standards (s 46). Section 50 ensures statutory obligations cannot be overridden by contract.
The Act builds post‑hoc review and transparency into the system (quarterly chief advocate reports s 42, three‑monthly review of regulated behaviour management s 43, annual contractor reports s 49), creating recurring institutional enforcement points.

Overall, enforcement is a mix of criminal sanctions for ill‑treatment and obstruction, administrative obligations and mandatory transparency mechanisms. Practitioners designing operational compliance should map staff conduct to reporting requirements (s 15), ensure robust recordkeeping and notification practices (ss 27, 32, 36, 42), and incorporate contractual clauses that implement s 45 minimum matters and permit CEO intervention consistent with s 45(h).

The Act is heavily cross‑referential. It is designed to operate alongside the Criminal Law (Mental Impairment) Act 2023, the Guardianship and Administration Act 1990, the Disability Services Act 1993 and other statutory frameworks. The Act both imports definitions and preserves existing obligations under other Acts. Key statutory interactions and legal touchpoints are:

Connection to the CLMI Act

The Act is structurally dependent on the CLMI Act: “resident”, “declared place” and “Tribunal” are defined by reference to the CLMI Act (s 3). The long title and multiple provisions (notably Part 12 transitional provisions) make this dependency explicit. Many operational triggers, such as who may be detained in a declared place, originate in the CLMI Act.

Guardianship and treatment decision frameworks

The Act interacts with the Guardianship and Administration Act 1990 (GAA Act) for treatment decision processes. The Act defines enduring guardian and guardian by reference to the GAA Act (s 3). Section 17 cross‑references the GAA Act by requiring the CEO to ensure urgent treatments provided under GAA Act ss 110ZI/110ZIA are recorded in the resident’s file and that relevant guardians are informed (s 17(5)-(6)). The CEO may make treatment decisions only when no person at law may make them and no such person is reasonably available and willing (s 17(2)). The CEO must act in residents’ best interests when making such treatment decisions (s 17(3)).

Health practitioner regulation

The Act references the Health Practitioner Regulation National Law (WA) for “doctor” and “nurse” definitions (s 25) and requires medical professionals to comply with professional standards when prescribing/administering behaviour management medication (s 26). These cross‑references mean clinical regulatory regimes and professional disciplinary obligations remain relevant.

Coroners, prisons and detention regimes

The CEO’s obligations do not displace Coroners Act duties; s 19(6) explicitly preserves obligations under the Coroners Act 1996. The CEO must notify various parties if a resident dies or is absent without leave; the notification list includes the Tribunal and Commissioner of Police (s 19(2)).

Freedom of Information and privacy regimes

The Act requires explanations of rights under the Freedom of Information Act 1992 (s 8(1)) and sets confidentiality limits with detailed exceptions (s 59), including disclosures required by other laws. Section 59(3) creates a statutory indemnity for persons giving information under specified sections, stating they do not incur civil or criminal liability or breach duties of confidentiality by doing so.

Advocacy and the Mental Health Act

The definition of “advocate” and “chief advocate” depends on whether Part 9 of the Mental Health Act 1996 remains in operation (s 51). Thus, the advocacy model may be functionally linked to separate mental health oversight arrangements where those provisions are operative or repealed.

Public sector and oversight statutes

The Act names specific external statutory instruments and offices in contractual contexts. For example, s 45(m) requires contracts to specify the office the principal officer holds for the purposes of the Children and Community Services Act 2004, the Corruption and Crime Commission Act 2003, the Freedom of Information Act 1992 and the Parliamentary Commissioner Act 1971. Section 58 allows the CEO to request information from public sector bodies as defined in the Public Sector Management Act 1994.

Contract law and statutory non‑contracting out

Part 9 permits contracting (s 44) but s 50 provides that the Part’s provisions apply despite anything to the contrary in a contract. This means that common law contract freedoms are constrained where they would conflict with statutory obligations. Contracts can and should contain penalty clauses (s 47) but those operate subject to the overriding statutory duties.

Statutory review and parliamentary processes

The Minister must lay copies of minimum standards, contractor reports and advocate reports before Parliament (ss 46(2), 49(3)-(4), 56(5)) and s 62 governs tabling mechanics. Section 64 requires statutory review of the Act at specified intervals. These provisions interact with parliamentary oversight and administrative law review mechanisms.

Interaction with emergency and policing powers

The Act expressly excludes police acting in the course of duty from Pt 8’s behaviour management regime (s 38). That preserves separate policing powers, but staff and contractors must understand the interaction where police act in declared places or during transfers.

Transitional arrangements with the old Board

Part 12 contains transitional provisions for the replacement of the Mentally Impaired Accused Review Board with the Tribunal under the CLMI Act (ss 65-66), providing information transfer obligations (s 66).

Implications

Practitioners must read the Act alongside the CLMI Act and other cross‑referenced statutes. Clinical decisions under the Act implicate professional regulation; confidentiality exceptions invoke statutory public interest or law enforcement reasons; contracting must be drafted to comply with statutory minimum terms and cannot lawfully attempt to contract out of the Act. The CEO’s obligations to report to the Tribunal and to Parliament create interlocking administrative pathways that interact with wider accountability and review mechanisms.

The compilation table and inserted notes in the Act document the legislative amendments and the dates on which various provisions changed. The Act has been amended and re‑titled as recorded in the public compilation. Key amendment events shown in the compilation are:

Original enactment: Declared Places (Mentally Impaired Accused) Act 2015, assented 3 March 2015; ss 1-2 commenced 3 March 2015 and remainder commenced 17 June 2015 (compilation table).
Health Practitioner Regulation National Law (WA) Amendment Act 2018 (No. 4 of 2018): section 109 amended definitions in s 25; the compilation table records assent on 19 April 2018 with commencement of the amendment on 1 December 2018 (compilation table). The Act’s definition of “nurse” and “doctor” and the cross‑reference to that Law were updated accordingly (see s 25).
Criminal Law (Mental Impairment) Act 2023 (No. 10 of 2023): Part 15 Division 11 inserted multiple amendments and changes, including re‑titling the Act to the Declared Places (Mental Impairment) Act 2015 (note under long title), inserting and amending a number of sections (for example, s 1 amended, s 3 amended, s 18 inserted, s 19 amended, s 20 amended, s 25 amended, s 53 amended, s 57 amended) and introducing Part 12 transitional provisions (compilation table and notes). The CLMI Act amendments have a commencement date recorded as 1 September 2024 (compilation table and SL 2024/175 cl 2). The notes identify that Divisions 1-3 (ss 67-89) were deleted by No. 10 of 2023 s 332.
Textual insertions referenced throughout the Act (for example, s 18 inserted by No. 10 of 2023 s 327; s 20 amended at s 329) are indicated inline in the statutory text with bracketed amendment notes. Practitioners must consult the compilation table and the Act’s notes for precise amendment provenance and the operative text.

Consequential and transitional arrangements

Part 12 contains transitional provisions (ss 65-66) linked to the CLMI Act commencement. For example, s 66 requires the CEO to provide reports to the Tribunal where the CEO had not given them to the former Board prior to commencement day. The compilation notes indicate deletion of prior Divisions 1-3 (ss 67-89) and the reconfiguration of the Act consequent on the CLMI reforms.

Practical effect of amendments

The CLMI Act amendments re‑orient the Act to align with the new CLMI statutory architecture, including replacing references to the Mentally Impaired Accused Review Board with the Tribunal and adjusting CEO functions accordingly (see inserted s 18 declaring CEO custody and responsibility). The Health Practitioner Regulation amendments update the clinical definitions so that clinical practitioner obligations mesh with the national registration framework.

Recommendation for practitioners

Always consult the current compilation (the State of Western Australia consolidated version) and the compilation table when advising. The Act has been amended in several discrete stages; the inserted notes and compilation table should be read to confirm which provision text is current and the commencement dates for amendments.

The Act’s text itself does not record judicial decisions. The statutory text references tribunals, courts and review mechanisms, which will generate litigation and administrative review in the course of operation, but the Act contains no case law or judicial interpretations within the compilation. Points in the Act that will be susceptible to litigation or administrative review pathways (and therefore of interest to practitioners monitoring litigation history) include:

CEO authorisation decisions under ss 30 and 34: These require subjective satisfaction about necessity and least restrictiveness. Disputes about whether the CEO’s decision complied with statutory tests could give rise to administrative law challenges, review by the Tribunal (which has functions under the CLMI Act) or damages claims, subject to statutory protections.
Allegations of ill‑treatment and reportable incidents: s 15 imposes a reporting duty and s 16 creates a criminal offence for ill‑treatment. These provisions could be engaged in criminal prosecutions or civil claims (including negligence or human rights challenges, where applicable).
Contractual disputes and contractor accountability: Contracts under s 44 must include minimum matters (s 45) and are subject to statutory intervention powers (s 45(h)). Contractor breaches leading to penalties (s 47) or CEO intervention may generate civil litigation.
Confidentiality and disclosure: s 59 creates obligations and exceptions for disclosure. Disputes over the scope of exceptions (for example, public interest or law enforcement disclosures) could lead to proceedings in courts or tribunals, or complaints to oversight bodies.
Advocate powers and compelled testimony: s 55 imposes obligations to answer questions and provides limited evidentiary protection for compelled answers. The scope of compelled assistance and its limits could be litigated, particularly where professional privilege or confidentiality claims arise.
Tribunal interaction and information provision: The CEO’s obligations to the Tribunal (s 57) may generate procedural disputes about adequacy or timeliness of information provided.

Because no cases are cited in the statutory compilation, practitioners must search the courts and tribunals databases, including decisions of the Tribunal established under the CLMI Act, State Administrative Tribunal rulings concerning administrative decisions, and criminal and civil court decisions that apply these statutory provisions in practice. Recordkeeping requirements in the Act (ss 27, 32, 36) create documentary trails that will be primary evidence in any litigation.

For those advising clients such as contractors, clinicians or the Commission, monitoring early litigation and Tribunal determinations will be essential to understanding prosecutorial or supervisory thresholds, the meaning of “least restrictive” in practice, and the judicial approach to CEO discretion and delegation limits.

This section flags concrete operational and legal pitfalls evident in the statute text. Each item is grounded in a specific provision; practitioners should verify processes against the Act’s requirements when advising.

CEO discretion with limited procedural constraints (s 30, s 34): The CEO must be “satisfied” that restraint or seclusion is the least restrictive option and necessary to protect health or safety (ss 30(1)(b), 34(1)(b)-(c)). That subjective satisfaction is the statutory test but must be recorded in writing for authorisations (ss 30(2), 34(2)). Failure to document proper reasons and IDP consideration leaves decisions vulnerable to review and complaint.
Non‑delegable functions and delegation traps (s 20(6) & Table): The CEO may delegate many powers but cannot delegate certain specific functions to contractors, subcontractors or their employees/agents. These non‑delegable functions include reviewing IDPs (s 14(1)), receiving reportable incident reports (s 15(2)), ensuring chief advocate receives regulated behaviour management data (s 42), and ensuring statutory reviews of regulated behaviour management (s 43(1)-(2)). Mis‑delegating these duties to a contractor can invalidate decisions and create liability exposure.
Emergency authorisations require prompt post‑hoc notification (ss 31(1)(b), 35(1)(b)): Emergency use of restraint, seclusion or behaviour management medication without prior authorisation is permitted, but the person must notify the CEO “as soon as practicable” with reasons for the emergency and for not obtaining prior authorisation. Operational systems must capture who notifies, when and what is recorded, because s 32 and s 36 require emergency uses and notifications to be recorded in the resident’s file.
Recordkeeping burden is heavy and central (ss 27, 32, 36, 42): Detailed records are required for behaviour management medication (s 27), restraint (s 32) and seclusion (s 36). The CEO must provide quarterly records to the chief advocate (s 42). Poor recordkeeping risks breaches of statutory obligations and hinders compliance with review and oversight.
Behaviour management medication defined separately from health care medication (s 25 & s 13(c)-(d)): Medication for behavioural control is treated differently from medication for health care. Doctors must meet a best interests or least restrictive test before prescribing behaviour management medication (s 26(1)). Misclassification or improper prescription exposes clinicians and the facility to complaint or prosecution.
Observation intervals and welfare obligations are prescriptive (ss 30(2)(e), 34(2)(e), 41(1)-(2)): Authorisations must set observation intervals not longer than 15 minutes. Welfare checks and post‑event health reviews are mandated within two hours. Failing to meet these timeframes is a compliance risk.
Advocates have compulsion powers with limited evidentiary protection (ss 54-55): Staff must answer advocates’ questions and provide assistance, with penalties for non‑compliance (s 55). Compelled answers are not admissible in criminal proceedings except for perjury or offences under s 55(2) (s 55(6)), but professional privilege or confidentiality claims may be tested when advocates request documents or answers. Facilities must have protocols for responding lawfully to advocacy requests and invoking legitimate exemptions only where permitted.
Contracts cannot override statutory duties (s 50): Contracts must include many mandatory provisions (s 45), but the Act expressly bars contracting out. Contract drafters must avoid clauses that attempt to displace statutory protections or CEO non‑delegable functions.
Information sharing is broad but bounded by confidentiality exceptions (ss 57-59): The CEO can request data from public sector bodies and provide information to specified parties (s 58), and s 59 creates a criminal penalty for misuse of resident information subject to exceptions. Practitioners must carefully map what can be shared and record the legal basis for disclosures under enumerated exceptions.
Criminal and civil liability interplay: Section 61 provides personal protection from tort liability for persons (except contractors/subcontractors) acting in good faith under the Act, but it expressly preserves State and contractor civil liability (s 61(4)). Contractors should note they are not protected by the personal good faith immunity in s 61(2), exposing them to civil claims for negligent acts.
Reporting and tabling deadlines are short (ss 46(2), 49(3)-(4), 56(5)): Minimum standards, contractor reports and contract copies must be laid before Parliament within 14 days of establishment, variation or receipt. Administrative processes must be in place to meet these statutory publication timelines.
Police exception may create coordination gaps (s 38): Part 8 does not apply to police officers acting in the course of duty. This preserves police powers but requires clear protocols for interactions between police and declared place staff to avoid disputes about applicable regimes and recordkeeping.
Treatment decision authority rests with CEO in narrow circumstances (s 17): The CEO may make treatment decisions only when the resident needs treatment, is unable to make reasonable judgments, and no person at law may make the decision and is reasonably available and willing (s 17(2)). However, the CEO must act in the resident’s best interests and take action to appoint a guardian afterwards (s 17(3)-(4)). Facilities should document the search for a legally permissible decision maker before CEO decisions are made.

Address these “gotchas” by integrating statutory checkpoints into operational workflows: authorisation templates, escalation and notification requirements, specialist assessment sign‑offs, document retention policies, advocate access protocols, contractor compliance schedules, and staff training modules aligned to the statutory timelines and record formats.

This section sets out pragmatic, source‑grounded steps for compliance mapped to the Act’s duties. It is addressed to CEOs, Commission officers, contractors and subcontractors, clinicians, advocates and legal advisers.

Governance and accountability

Map non‑delegable functions: The CEO must identify functions listed in s 20(6) and ensure they are not delegated to contractors or their agents. Establish an internal register showing which functions are retained and which are delegated under s 20, with written delegations where permitted.
Policies and procedures: The CEO must issue policies and procedures specifying approved restraint devices (s 29) and IDP‑related guidance (s 12(3)). Draft and publish these policies and ensure declared places receive and implement them.

Individual Development Plans (IDPs)

Assessment protocol: Ensure every IDP is prepared after assessment by two or more persons in different disciplines as required by s 12(1). Maintain a roster of assessors and record qualifications and disciplinary background in the resident’s file.
Consultations: Document consultations with the resident, advocate, guardian/enduring guardian and key family members (s 12(4)). Keep signed or contemporaneous records to evidence compliance.
Content checklist: Use the s 13 checklist to ensure each IDP contains the required elements: programmes, transition plans, medication lists, behaviour support strategies, details of behaviour management medication, and emergency recording requirements for restraint/seclusion. Keep IDPs in writing and store copies in the resident’s file (s 13).
Review schedule: Implement a calendar to trigger IDP reviews within six months of initial preparation and then annually, or earlier on resident request (s 14(1)-(2)). Document requests for review and CEO responses.

Regulated behaviour management: authorisations, emergency use and welfare

Authorisation workflows: Create standardised authorisation templates that meet s 30(2) and s 34(2) content requirements for restraint and seclusion authorisations. Ensure the templates state reasons, limitations, observation intervals (not exceeding 15 minutes), maximum periods, special care instructions and dates/times.
Emergency use protocols: Establish immediate post‑event reporting procedures so that when restraint, seclusion or medication is used in an emergency without prior authorisation the CEO is notified “as soon as practicable” with documented reasons (ss 31(1)(b), 35(1)(b)). Maintain an incident response log to capture time, reason, persons involved and notification timestamp.
Observation and welfare checks: Operationalise observation intervals and welfare obligations (food, fluids, bedding, access to toilet, access to medical medication) during any regulated behaviour management event (s 41(1)). Assign staff responsibilities and ensure observation records are completed at intervals not exceeding 15 minutes where authorisation does not require continual observation (ss 30(2)(e), 34(2)(e)).

Clinical governance for behaviour management medication

Prescribing policy: Align clinical protocols with s 26. Doctors must be satisfied that prescribing behaviour management medication is in the resident’s best interests or the least restrictive option. Document clinical justifications in files.
Administration rules: Ensure only authorised personnel administer behaviour management medication either as a doctor or a nurse under the direction of a doctor (s 26(2)). Confirm nursing scope of practice and delegation arrangements consistent with the Health Practitioner Regulation National Law.
Recordkeeping: Maintain the detailed medication records required by s 27 in both the resident’s file and the IDP. Include name and amount, time and reason, prescriber identity and timestamp, observations post‑administration and any clinical reviews within two hours as required by s 41(2).

Reporting, incidents and advocate interaction

Reportable incident procedure: Implement mandatory reporting channels for reportable incidents (s 15). Train staff to recognise reportable incidents and to report them to the CEO, a nominated Commission person, the Health and Disability Services Director, or police as required. Keep time‑stamped records of reporting.
Advocate engagement: Notify the chief advocate within 48 hours of a new resident’s arrival (s 52(1)). Facilitate visits within seven days and at least quarterly thereafter (s 52(2)). Prepare staff to answer advocates’ questions (s 54(5)) and to provide reasonable assistance (s 54(8)) while being mindful of legal limits on disclosure and confidentiality exceptions (s 59).

Recordkeeping and data flows

File structure and content: Ensure resident files contain IDPs, medication details (s 27), restraint/seclusion records (ss 32, 36), written CEO orders under s 10 including reasons (s 10(6)(a)(ii)), and the results of CEO reviews (s 43(2)(b)). Create electronic and physical backup systems and a retention schedule compliant with legislative requirements and coroner obligations (s 19(6)).
Quarterly reporting to chief advocate: Put in place procedures to extract and transmit the documents and information recorded under ss 27, 32 and 36 to the chief advocate every three months (s 42). Track and archive transmissions.

Contracting and procurement

Contract content: Ensure contracts entered under s 44 include all minimum matters specified in s 45. Insist on clear compliance clauses for the Act, indemnities in favour of the Commission (s 45(l)), reporting obligations (s 45(f)), notification of change in control (s 45(g)), codes of ethics (s 45(i)) and CEO intervention clauses (s 45(h)).
Minimum standards and parliamentary tabling: Build contract performance measurement frameworks that align with the CEO’s minimum standards (s 46). Track the 14‑day parliamentary tabling deadlines required for standards and contract copies (ss 46(2), 49(3)-(4)).
Access and inspection rights: Make sure contractors accept unfettered access by the Commission/CEO/authorised persons (s 48). Establish procedures for immediate compliance with access and for handling any notifications or follow‑up.

Confidentiality and information sharing

Lawful disclosure matrix: Prepare an internal matrix mapping which disclosures are permitted under s 59(2) and which require consent or court order. Train staff on permissible disclosures for clinical care, law enforcement, Tribunal requests and public interest safety exceptions.
Documentation of legal bases: For each disclosure, record the statutory basis (e.g., s 57, s 58 or a specific exception in s 59(2)) and relevant authorisations to defend against confidentiality complaints.

Training, supervision and audits

Staff training: Deliver role‑specific training modules on IDPs, behaviour management authorisation, emergency notification, observation logging, reporting of reportable incidents, and interaction with advocates. Maintain attendance records and periodic refresher training.
Audit and assurance: Implement internal audit cycles to check IDP timeliness, authorisation completeness, observation logs, medication records, incident reporting and advocate engagement. Produce an audit trail to support CEO declarations and contractor reports (s 49).

Legal and governance checks

Legal sign‑off: Have legal counsel review contract templates, policies, authorisation forms and consent forms to ensure they align with the Act, especially concerning non‑delegable functions (s 20(6)), confidentiality language (s 59) and clinical protocols (s 26).
Incident escalation pathways: Establish an escalation matrix for incidents that could attract criminal investigation (s 16) or serious complaints that require CEO notification, Tribunal reporting or police involvement (s 19(2), s 15(2)).

Record and public reporting compliance

Parliamentary and ministerial timelines: Ensure CEO and Ministerial office processes capture the 14‑day tabling obligations and annual contractor report delivery dates (s 49(1), (3)-(4); s 46(2)). Coordinate with the Minister’s office to ensure timely tabling or use of s 62 procedures when Parliament is not sitting.

By implementing these source‑grounded operational measures, agencies and contractors will address the Act’s procedural, recordkeeping and reporting demands. The practical compliance programme requires cross‑functional coordination between clinical governance, legal, operations, contractor management and communications teams to meet the Act’s detailed requirements and timelines.

Deep Dive

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