Declared Places (Mentally Impaired Accused) Act 2015 (Western Australia)

Mechanically, the Declared Places (Mental Impairment) Act 2015 (as amended) establishes a statutory regime for places that detain supervised persons required to be detained under the Criminal Law (Mental Impairment) Act 2023 (CLMI Act). The Act defines “declared place” (s 3), makes the chief executive officer of the Disability Services Commission (CEO) responsible for the custody, welfare and safe custody of residents detained in those places (s 18), and sets out the operation, control, management and security duties for declared places (s 19). The Act authorises the Commission, through the CEO, to contract out the operation of declared places to private or non‑government operators (s 44), but prescribes minimum contractual contents (s 45), requires minimum standards (s 46), and reserves a set of CEO functions that cannot be delegated to contractors or subcontractors (s 20(6)).

The Act creates an extensive governance and oversight architecture for detained residents. It requires that each resident have a written individual development plan (IDP) prepared after multidisciplinary assessment and consultation (ss 11-14). It guarantees specified resident rights, notably a right to freedom of lawful communication (s 9), and requires that residents, their guardians or an adult close to them be given an explanation of their rights (s 8). It establishes criminal and civil protections for residents including mandatory reporting of suspected ill‑treatment or unlawful acts (s 15), a criminal offence for ill‑treatment by a person responsible (s 16), and rules addressing treatment decisions when the resident lacks capacity (s 17).

The Act tightly regulates three forms of behaviour management: behaviour management medication, restraint and seclusion. It sets substantive limits on prescription and administration of behaviour management medication (ss 25-27); requires that restraint devices be approved and that every use of restraint be authorised in writing except in defined emergencies (ss 28-32); and requires written authorisations for seclusion and strict limits on observation, duration and records (ss 33-36). The Act defines “regulated behaviour management” to include those three categories and imposes cross‑cutting requirements: “least restrictive” tests, a prohibition on excessive force or measures, welfare requirements during any intervention, specified recording duties, and regular internal review and external reporting to the chief advocate (ss 37-43).

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

Declared place and resident, the architecture’s anchors. A “declared place” is any place declared under the CLMI Act s 60 and controlled and managed by or on behalf of the Commission (s 3). A “resident” is a supervised person required under the CLMI Act to be detained in a declared place (s 3). Those definitions tie the Act’s scope directly to the CLMI Act and to persons detained under that Act; the Act does not apply to other forensic or civil detention schemes except where specifically cross‑referenced.

Individual development plans (IDPs) are core operational devices. The CEO must ensure an IDP for each resident (s 11). IDPs are purpose‑specific documents: they set out habilitation, rehabilitation and quality‑of‑life programmes; management, care and support arrangements; strategies to reduce risk behaviours including positive behaviour support; transition plans to community participation; medication and review provisions; and details regarding any use of restraint, seclusion or behaviour management medication (s 13). Preparation requires multidisciplinary assessment by at least two people with different disciplinary backgrounds (s 12(1)), consultation with the resident, the resident’s advocate or guardian, and family or carers where integral to planning (s 12(4)), and, for positive behaviour support, assessment by a qualified behavioural support specialist (s 12(2)). IDPs must be reviewed within six months and then annually, or earlier on request because of changed circumstances (s 14).

Regulated behaviour management is the statutory label for the three central interventions that present the greatest risk to liberty and bodily integrity: behaviour management medication, restraint and seclusion (s 37). The Act defines each term in detail (ss 25, 28, 33) and imposes layered controls: clinical thresholds for medication (s 26), CEO authorisation and device approval for restraint (ss 29-31), CEO authorisation for seclusion with maximum periods and observation intervals (ss 34-36), and cross‑cutting welfare protections (s 41) and review and reporting requirements (ss 42-43).

Delegation and contracting are conceptually distinct. The CEO can delegate many functions (s 20(1)-(5)), but may not delegate certain enumerated functions to contractors or their subcontractors (s 20(6) and accompanying Table). Separately, the CEO may enter contracts for declared place services to third parties (s 44) but those contracts must include specific minimum terms (s 45), must comply with minimum standards established by the CEO (s 46), and cannot be used to avoid statutory obligations because the Part applies “despite anything to the contrary in a contract” (s 50). Contracts may impose payment penalties for breaches (s 47) and must be reported and tabled (s 49).

Advocacy and oversight is a statutory concept that requires independent external contact with residents and files. The Act provides for a chief advocate and advocates with powers to visit residents within strict timeframes, inspect and copy records, and report to the CEO and Minister (Part 10). The chief advocate receives quarterly data on all regulated behaviour management recorded in residents’ files (s 42), and advocates are empowered to monitor restrictions on communication (s 53(c)) and the use of regulated behaviour management generally (s 53(d)). The Act criminalises obstruction of advocates and false answers to them (s 55).

Interoperability with other laws is embedded. The Act repeatedly cross‑references the CLMI Act, the Guardianship and Administration Act 1990 (GAA Act), the Disability Services Act 1993, the Health Practitioner Regulation National Law (WA), the Mental Health Act 1996 (for advocate arrangements), the Coroners Act 1996, the Freedom of Information Act 1992 and other statutes (see, for example, ss 3, 8, 17, 19, 45, 51, 57-59). Statutory duties often depend on or interact with the GAA Act’s capacity and urgent treatment provisions (s 17(5)-(6)) and the CLMI Act’s definitions and Tribunal functions (ss 3, 57).

Recordkeeping, reporting and tabling are recurring mechanisms. Multiple provisions require detailed contemporaneous records in the resident’s file for behaviour management medication (s 27), restraint (s 32) and seclusion (s 36); quarterly transmission of those records to the chief advocate (s 42); quarterly internal reviews of the use of regulated behaviour management with records (s 43); annual CEO reports on contractors for tabling (s 49); and laying minimum standards and other documents before Parliament (s 46(2), s 49(3)-(4), s 56(5)).

Sanctions and protections: the Act uses a mix of criminal penalties for specific misconduct (s 16 criminalises ill‑treatment), monetary penalties for obstructing access or non‑compliance and contractual penalties (ss 15, 48(5), 55, 59, 47), internal remedying powers for the CEO (s 45(h)), and limited statutory immunities for persons acting in good faith while performing functions under the Act, excepting contractors and subcontractors (s 61). The Act also imposes an obligation on the Minister to review the operation of the Act on a scheduled basis (s 64).

Taken together, the main concepts are a custody model with a strong administrative core, clinical safeguards for interventions on behaviour, contractual frameworks for outsourced operations accompanied by non‑delegable duties, and an independent advocacy and reporting pipeline intended to monitor compliance and resident welfare.

Residents. The principal class affected is people defined as “residents”, that is supervised persons required under the CLMI Act to be detained in a declared place (s 3). The Act imposes direct rights on residents (Part 3), procedural protections in IDPs (Part 4), and welfare protections during and after regulated behaviour management (s 41).

CEO and Commission. The CEO is the statutory pivot: responsible for custody and welfare while a person is detained (s 18), responsible for operation, control, management and security of declared places subject to the Commission (s 19), obliged to prepare and review IDPs (ss 11-14, s 20(6) non‑delegable), required to notify and provide information to multiple parties (ss 10(6), 19(2)-(5), 42), and to establish minimum standards (s 46). The Commission is the statutory entity that holds the CEO accountable and retains overarching control.

Contractors and subcontractors. The CEO may enter contracts for declared place services with external operators (s 44). Contractors, and their subcontractors, are required by contract to comply with the Act and other laws, must meet minimum standards (s 45(e)), and are subject to investigative and access powers (s 48). However, certain CEO functions cannot be delegated to contractors or subcontractors (s 20(6) and Table), creating a dual legal exposure: operational delivery under contract alongside statutory oversight by the CEO and Commission.

Health professionals. Doctors and nurses play regulated roles in behaviour management medication: only a registered doctor may prescribe behaviour management medication as defined in s 25 and only doctors or nurses acting under a doctor’s direction may administer it, with prescribed observation and recording requirements (s 26). Health professionals also feature in the CEO’s duty to arrange review of health and welfare after interventions and in urgent treatment record duties in s 17.

Advocates and chief advocate. Advocates and the chief advocate (defined in s 51) have statutory rights to inspect places and files, visit residents within specified time frames (s 52), and report to the CEO and Minister (ss 53-56). Advocates can be the statutory vehicle for external scrutiny and for residents’ access to legal assistance and complaint mechanisms (s 53).

Guardians, enduring guardians and carers. The Act requires consultation with guardians in IDP preparation (s 12), imposes obligations to notify guardians in events such as death or absence without leave (s 19(2)), and provides that guardians can receive IDPs and other rights explanations (s 8).

The Tribunal, courts and Parliament. The Tribunal (defined in s 3 by reference to the CLMI Act) receives information and reports from the CEO and can request reports (s 57). The Minister must lay specified standards, contracts and reports before each House of Parliament (ss 46(2), 49(3)-(4), 56(5)), integrating parliamentary oversight.

Public sector bodies and law enforcement. The CEO can request information from public sector bodies, Police, prison and hospital superintendents, and persons who take charge of residents during movements (s 58(1)). Police powers are expressly preserved where the officer acts in the course of duty and the Act’s behaviour management controls do not apply to such conduct (s 38).

Employees and volunteers. The Act affects anyone who “works in a declared place” whether under contract of service, contract for services, or voluntarily; such persons have mandatory reporting duties for suspected reportable incidents (s 15), must comply with searches (s 24), and may face penalties for obstructing advocate access (s 55).

Families and communities. The Act requires that programmes be sensitive to cultural, linguistic and community contexts, in particular for Aboriginal and Torres Strait Islander people (s 6(5)), and mandates opportunities for family, carers and advocates to participate in planning (s 6(7)).

Persons in possession of prohibited things and visitors. The CEO may refuse entry to people carrying prohibited things, search entrants and seize prohibited things (s 22). The statutory search framework prescribes gender‑sensitive procedures and protections for minors (s 24).

Overall, the Act divides statutory actors into operational decision‑makers (CEO, contractors, clinicians), watchdog and participatory actors (advocates, guardians, Tribunal), and those required to provide information or assistance (public sector bodies, staff and volunteers). Each group has discrete statutory duties and potential penalties set out in specific sections.

CEO duties. The CEO’s duties are multiple and central. The CEO must ensure each resident has a written IDP and is managed consistent with that plan, and that assessments required under the plan are recorded (s 11). The CEO must establish processes for preparation, review and change of IDPs including multidisciplinary assessment and consultation (s 12). The CEO must ensure IDPs contain mandated content, including medication details and what constitutes appropriate or inappropriate regulated behaviour management for the resident (s 13). The CEO must ensure IDPs are reviewed within six months of preparation and annually thereafter, and must provide copies on request to the resident, advocate, lawyer, enduring guardian or guardian (s 14). The CEO must make and vary orders restricting freedom of communication only where satisfied of specified tests and must record and distribute reasons to the resident and relevant persons (ss 9-10). The CEO must ensure timely notification of new residents to the chief advocate (s 52(1)), must provide quarterly copies of regulated behaviour management records to the chief advocate (s 42), and must ensure three‑monthly reviews of the use of regulated behaviour management (s 43). The CEO is responsible, subject to the Commission, for the management and security of declared places and must notify specified parties of deaths, absences without leave, accidents and serious irregularities (s 19).

Resident rights and explanation obligations. Residents have explicit rights to freedom of lawful communication (s 9(2)-(3)), which includes uncensored communications and visits and contact with advocates, guardians and lawyers (s 9(3)). The CEO must give residents, guardians, enduring guardians, one adult with a close personal relationship and lawyers an explanation of rights in a manner likely to be understood (s 8). The Act is explicit that the Part is in addition to other legal rights and does not derogate rights under other laws except where expressly provided (s 7).

Regulated behaviour management,clinical and administrative duties. Doctors must not prescribe behaviour management medication except when satisfied that it is in the best interests of the resident or the least restrictive way to protect health and safety (s 26(1)). Medication may only be administered if prescribed and administered by a doctor or by a nurse acting under a doctor’s direction, in accordance with the doctor’s directions, and with appropriate observation (s 26(2)). Restraint may only be used if authorised in writing by the CEO after regard to the resident’s IDP and the least restrictive test, and, where devices are used, only approved devices may be used (ss 29-31). Authorisations must specify types of restraint, reasons, restrictions, maximum periods, observation intervals not longer than 15 minutes, special care measures and dates and duration (s 30(2)). Seclusion requires a written CEO authorisation, limited to cases where seclusion is necessary to protect from imminent physical harm and is the least restrictive option; authorisations must specify maximum periods not longer than any regulation, observation intervals not longer than 15 minutes if not continually observed, and special care measures (s 34). Emergency uses without prior authorisation are permitted but must be notified to the CEO as soon as practicable with reasons (ss 31(1)(b), 35(1)(b)). Cross‑cutting welfare duties require food, fluids, bedding, access to toilets and medical treatment during regulated behaviour management and a health and welfare review as soon as practicable after but no more than 2 hours after an intervention ends (s 41).

Recordkeeping duties. The CEO must ensure extensive records are kept in resident files: behaviour management medication details (s 27(1)-(2)), restraint types, timing and observations (s 32), seclusion episodes and observations (s 36). The CEO must include copies of authorisations in the resident’s file (ss 32(a), 36(a)) and ensure records relating to orders restricting communication are kept and distributed (s 10(6)).

Reporting and review duties. Staff must report suspected “reportable incidents” (ill‑treatment, wilful neglect, unlawful sexual contact, unreasonable use of force) to the CEO, nominated persons, the Director under the Health and Disability Services (Complaints) Act 1995, or a police officer (s 15). The CEO must ensure quarterly submission of regulated behaviour management records to the chief advocate (s 42) and three‑monthly review of the use of regulated behaviour management by suitably qualified reviewers (s 43). Contractors must provide annual reports to the CEO and the Minister must table them (s 49).

Contracting duties. Contracts for declared place services must require compliance by contractors, subcontractors and their employees with the Act and other written laws, comply with Coroners Act obligations (s 45(b)), set objectives and performance standards (s 45(c)), contain fees and charges (s 45(d)), require compliance with minimum standards established by the CEO (s 45(e)), include reporting procedures for deaths, absences without leave and other events (s 45(j)), permit CEO intervention and termination including requisitioning property on termination (s 45(h)), and provide for indemnities (s 45(l)).

Advocate powers and duties. Advocates must visit residents within specified timeframes and at least four times a year unless the resident declines (s 52). Advocates can inspect and copy resident files, ask staff questions about welfare and the operation of the place, and require assistance in performing functions (ss 54(4)-(8)). Persons answering advocates’ questions must do so and may face fines for non‑compliance or false statements (s 55).

Information sharing and confidentiality duties. The Tribunal and the CEO may share information relevant to a resident’s welfare, and the CEO may request and provide resident‑related information from and to specified public bodies, prison or hospital superintendents, police and contractors (ss 57-58). Persons must not record, use or disclose resident information obtained in the course of performing functions under this Act except for permitted purposes listed (s 59(1)-(2)); contravention attracts a fine (s 59(1)).

Sanctions and protections. The Act prescribes a range of penalties: reporting offences attract a $5,000 fine (s 15), ill‑treatment of residents attracts a $24,000 fine or two years’ imprisonment (s 16), hindering authorised access attracts a $20,000 fine (s 48(5)), obstructing or misleading an advocate attracts a $6,000 fine (s 55), and breaches of confidentiality attract a $2,500 fine (s 59(1)). The Act provides good faith tort immunity to persons acting under the Act except contractors and subcontractors (s 61).

Collectively, the Act creates duties of care, documentation, oversight, minimum standards and reporting that distribute decision rights,clinical decisions to doctors and nurses, operational control and statutory accountability to the CEO, inspection and resident representation to advocates, and legal review to the Tribunal and Parliament.

Monetary fines and custodial penalties are specified for particular contraventions. Key statutory penalties are: failure to report a suspected reportable incident by a person who works in a declared place carries a fine of $5,000 (s 15(2)); ill‑treatment or wilful neglect by a person responsible for a resident is a criminal offence with a maximum penalty of a $24,000 fine or imprisonment for 2 years (s 16(2)); obstructing free access by authorised persons under s 48 attracts a $20,000 fine (s 48(5)); offences related to answers or assistance given to advocates, and hindrance of advocates, attract fines of $6,000 (ss 55(1)-(4)); and unauthorised disclosure of resident information obtained under the Act attracts a fine of $2,500 (s 59(1)). The Act also enables contractual penalties, recoverable under the contract, that are payable for breach of contract terms where the contract provides for them (s 47).

The enforcement architecture combines criminal sanctions, civil/contractual remedies, administrative controls and oversight mechanisms. Administrative enforcement tools include the CEO’s powers to intervene in, suspend or terminate contracts and to requisition property on termination as specified in contract terms (s 45(h)). The Commission, the CEO, and any person authorised by the CEO have free and unfettered access at any time to declared places, residents, staff and relevant documents for the purposes of ensuring compliance with the Act and contracts (s 48(1)-(4)). Interference with such access is penalised (s 48(5)). The CEO must prepare annual contractor reports and deliver them to the Minister for tabling within Parliament (s 49), creating parliamentary scrutiny and the potential for political and reputational enforcement.

Regulatory oversight is built into minimum standards and tabling requirements. The CEO must establish and may vary minimum standards applicable to declared place services (s 46(1)); the Minister must cause the standards or any variation to be laid before each House of Parliament within 14 days (s 46(2)). Contracts and annual reports must be tabled or referred to the Clerk when Parliament is not sitting (s 49(3)-(4), s 62). Advocates produce annual reports to the Minister on activities; the Minister must table those reports (s 56(3)-(5)). The quarterly supply of regulated behaviour management records to the chief advocate (s 42), and three‑monthly reviews of the use of regulated behaviour management (s 43), create a continuous reporting and review process that supports administrative response and oversight.

Criminal liability and evidentiary rules are calibrated in limited ways. Section 55(5) states that an individual is not excused from answering an advocate’s question or providing assistance on grounds that the response might tend to incriminate them; however, s 55(6) provides that answers or assistance given to comply with the requirement are inadmissible in criminal proceedings against the individual except for perjury or the offence under s 55(2), which addresses false or misleading answers.

Legal risk allocation between the State and private operators is also addressed. Section 61 shields persons (other than contractors and subcontractors) from tort liability for acts or omissions done in good faith when performing functions under the Act, but expressly states that the State, a contractor or subcontractor is not relieved of liability because of that protection (s 61(2)-(4)). Contractual clauses under s 45 include indemnities in favour of the Commission (s 45(l)), and s 50 prevents contractual arrangements from being used to contract out of statutory responsibilities.

Regulations and Parliament are enforcement levers. The Governor may make regulations prescribing matters required by the Act, including standards applicable to persons performing functions under the Act (s 63). Mandatory parliamentary tabling of standards, contracts and reports (ss 46(2), 49(3)-(4), 56(5)) integrates legislative oversight into enforcement.

In summary, enforcement is multi‑modal: criminal penalties for specified abuses, monetary penalties for obstructive or regulatory breaches, administrative remedial powers for the CEO and Commission, contractual penalties and obligations, statutory immunities for non‑contractual actors, and ongoing oversight via advocates, internal reviews, tabling to Parliament and regulations.

The Act is deliberately framed to operate in conjunction with several other statutes, creating a network of cross‑references that shape duties and information flows. The core statutory linkage is to the CLMI Act: defined terms including “resident”, “supervised person”, “authorised hospital” and “Tribunal” are taken from the CLMI Act (s 3). The Act applies only to persons required under the CLMI Act to be detained in declared places, because “declared place” is a place declared under the CLMI Act s 60 and controlled and managed by or on behalf of the Commission (s 3).

Guardianship and treatment. The Act interacts with the Guardianship and Administration Act 1990 (GAA Act) on capacity and urgent treatment. Treatment is defined broadly (s 17(1)), and the CEO may make treatment decisions where the resident needs treatment and cannot reasonably make decisions, and there is no person legally able, available and willing to make the decision (s 17(2)). The CEO must act in the resident’s best interests (s 17(3)) and must take action regarding appointment of a guardian after making a treatment decision (s 17(4)). The Act requires recordkeeping and notification consistent with the GAA Act where urgent treatment is provided under GAA Act ss 110ZI and 110ZIA, including recording details and why the guardian was not able to be consulted and informing the guardian (s 17(5)-(6)). Section 13(c) and (d) require IDPs to include details of medication prescribed by registered health practitioners and provision for review of health care medication, thereby aligning with health regulation.

Health Practitioner Regulation National Law and clinical regulation. Part 8’s definitions and requirements for doctor and nurse reference registration under the Health Practitioner Regulation National Law (WA) (s 25). Clinical tasks such as prescribing and administering behaviour management medication are confined to registered doctors and nurses acting under a doctor’s direction (s 26).

Disability Services Act and Commission functions. The Commission referenced in the Act is the Disability Services Commission as defined in the Disability Services Act 1993 (s 3). Section 44(3) clarifies that contracting under this Act does not affect the Commission’s powers under the Disability Services Act s 12A(1), the constraints under s 12A(2), or the requirement to consult the Minister under s 21B of that Act. Contracts must also provide for compliance with the Coroners Act 1996 obligations for persons who hold residents in care (s 45(b)), integrating coronial responsibilities for deaths in care.

Freedom of information and parliamentary oversight. The CEO must explain rights under the Freedom of Information Act 1992 (s 8(1)), and multiple documents, including minimum standards and contractor reports, are subject to tabling in Parliament (ss 46(2), 49(3)-(4), 56(5)). Section 62 operationalises laying documents before Parliament if a House is not sitting.

Mental Health Act and advocacy. The definition of advocate and chief advocate depends on whether Part 9 of the Mental Health Act 1996 is in operation (s 51). If that Part is in operation, the Council of Official Visitors and its Head supply the advocacy functions; otherwise, the class of persons and chief advocate are prescribed by regulation (s 51). This creates an interface where the institutional vehicle for advocacy may be the same as or distinct from mental health advocacy, depending on legislative status.

Privacy, confidentiality and admissibility. The Act creates an independent confidentiality regime for information obtained in performing functions under the Act (s 59). It permits information exchange with specified persons and agencies where necessary (ss 57-58), and expressly states that giving or receiving such information does not expose the person to civil or criminal liability for disclosure, nor breach professional confidentiality duties (s 59(3)). Section 55 contains a limited abrogation of privilege against self‑incrimination in respect of questions from advocates, while s 55(6) protects statements made under compulsion from being admissible in criminal proceedings except for perjury or offences under s 55(2).

Search, control and policing regimes. The CEO’s powers to search, seize and exclude people and things (ss 22-24) interact with police powers and custodial regimes. The Act states that Part 8 does not apply to police officers acting in the course of duty (s 38), preserving law enforcement powers, and s 19(6) confirms the CEO retains obligations under the Coroners Act when holding a resident in care.

Contract law and public sector obligations. Contracts under s 44 must incorporate compliance with a range of statutory regimes and reporting obligations including the Coroners Act and Freedom of Information Act, and must identify the principal officer for the purposes of multiple acts including the Children and Community Services Act 2004, Corruption and Crime Commission Act 2003, Freedom of Information Act 1992 and Parliamentary Commissioner Act 1971 (s 45(m)). Section 20 limits the delegation of certain CEO functions to contractors or their staff, creating a statutory constraint on the outsourcing of core decision‑making.

Regulatory frameworks. The Governor may make regulations necessary to give effect to the Act and to prescribe standards that apply to people performing functions under the Act (s 63). The Act requires the Minister to review its operation periodically (s 64), embedding this statute into an ongoing regulatory review cycle.

Transitional provisions and the CLMI Act. Part 12 contains transitional arrangements transferring report obligations from the former Mentally Impaired Accused Board to the Tribunal under the CLMI Act if reports remained outstanding at commencement (ss 65-66), showing planned continuity between the old and new forensic mental impairment frameworks.

In short, the Act is integrative: it imports definitions from the CLMI Act, aligns clinical and guardianship decision pathways with the GAA Act and health practitioner registration law, coordinates advocacy with the Mental Health Act mechanisms, imposes coronial and FOI‑related contractual duties, preserves police powers, and creates statutory interfaces for information sharing and confidentiality with public agencies.

The Act’s compilation table and inserted notes record specific amendments and timing. At first enacted as the Declared Places (Mentally Impaired Accused) Act 2015, the short title was changed to Declared Places (Mental Impairment) Act 2015 (note under s 1). The compilation table lists three entries relevant to amendment history:

Health Practitioner Regulation National Law (WA) Amendment Act 2018, s 109 (No. 4 of 2018). This amendment, which commenced 1 December 2018, amended s 25’s definitions relating to doctor and nurse by aligning them to the Health Practitioner Regulation National Law (WA) registration categories; the Act’s text reflects this change in the definitions used for medical and nursing professions (see s 25 and compilation table entry).
Criminal Law (Mental Impairment) Act 2023 amendments (No. 10 of 2023). Multiple insertions and amendments are recorded with specific section numbers in the Act text: the long title was inserted by Pt 15 Div 11 of the CLMI Act 2023 (note at head of Act), s 1 was amended (s 325), s 3 was amended to update defined terms and references to the CLMI Act (s 326), s 18 was inserted defining the CEO’s custody responsibility (s 327), s 19 was amended (s 328), s 20 was amended (s 329), s 53 was amended (s 330), s 57 was amended (s 331), and Part 12 (ss 65-66) was inserted with transitional provisions (s 332). The compilation table indicates the CLMI Act amendments took effect on 1 September 2024 (SL 2024/175 cl. 2). The Act’s headings and note show Divs 1-3 (ss 67-89) were deleted by the CLMI Act amendment (s 332).
Original commencement. Sections 1 and 2 commenced on 3 March 2015, while the balance of the Act originally commenced on 17 June 2015 (compilation table).

Recorded changes in the body of the Act. The body of the Act shows insertions and amendments by reference. Notable legislative insertions include s 18, which expressly takes effect “while a person is required under the CLMI Act to be detained in a declared place” and treats that person as in the CEO’s custody, making the CEO responsible for welfare and safe custody (s 18, inserted No. 10 of 2023 s 327). Section 20’s delegation Table sets out specific CEO functions that cannot be delegated to contractors or subcontractors (s 20(6)), a provision amended by the 2023 Act to reflect non‑delegable oversight responsibilities.

Transitional provisions. Part 12 (ss 65-66) was added to deal with the transition from the Mentally Impaired Accused Board to the Tribunal under the CLMI Act; where the CEO had been required to prepare and give a report to the old Board but had not done so before commencement day, the CEO must prepare and give the report to the Tribunal (s 66).

Tabling and review obligations. The Act as amended retains obligations requiring the Minister to lay minimum standards and contractor reports before Parliament within specified timeframes (ss 46(2), 49(3)-(4), 56(5)). The Act also requires the Minister to review the operation of the Act after the third anniversary of the operation of s 64 and every five years thereafter (s 64).

The compilation table in the Act is authoritative for commencement dates and amendment references included in the source. The precise amendment provisions cited in the Act text identify the legislative sections that effected the changes and their insertion points; the compilation table confirms dates and statutory instruments for commencement.

The statute text supplied contains no case law, judicial decisions or references to litigation. The compilation and notes do not record any court proceedings or tribunal decisions under the Act. Consequently, the source does not identify any litigation history to summarise.

Practical litigation risk areas identifiable from the Act’s provisions include disputes over the scope and exercise of CEO powers (for example, orders restricting communication under s 10), challenges to the lawfulness of restraint or seclusion where authorisation or procedural requirements are alleged not to have been met (see ss 30-36 and recordkeeping requirements ss 32, 36), claims regarding ill‑treatment under s 16, and contractual disputes arising from contractor performance, termination, indemnities or penalty clauses under ss 44-49. Other potential areas for legal contest may include confidentiality or information disclosure claims under s 59 where the permitted exceptions are invoked, and disputes about the CEO’s authority to make treatment decisions under s 17 with cross‑reference to the GAA Act.

Where litigation arises, the Act frames admissibility and evidentiary rules in certain contexts, for example providing that answers or assistance given to an advocate to comply with compelled obligations are not admissible in criminal proceedings against the individual except in proceedings for perjury or for the offence under s 55(2) (s 55(6)). The Act also creates a limited statutory tort immunity for persons acting in good faith while performing functions under the Act, except contractors and subcontractors (s 61). That immunity could be an issue in civil litigation regarding alleged negligence or other torts, and the Act explicitly preserves potential State or contractor liability (s 61(4)).

Because the Act cross‑references multiple external statutes such as the CLMI Act and the GAA Act, litigation may intersect with oft‑litigated guardianship and treatment doctrines under those statutes. Any future litigation history would need to be located outside the source material provided; none is recorded within the Act text itself.

Non‑delegable functions and apparent outsourcing. The CEO may delegate many functions, but s 20(6) creates a hard line: certain functions cannot be delegated to contractors or subcontractors or their employees or agents, including reviewing IDPs (s 14(1)), receiving reports of reportable incidents (s 15(2)), ensuring the chief advocate receives quarterly information about regulated behaviour management (s 42), ensuring review of regulated behaviour management (s 43(1)-(2)), preparing and delivering annual contractor reports to the Minister (s 49(1)), and giving information or reports to the Tribunal (ss 57(1)-(2)), and making or requesting the provision of information (ss 58(1)-(2)). Contractors may be engaged to operate declared places under s 44, but those delegations cannot displace the CEO’s statutory responsibilities. Practically, this requires a mandated governance split between contractual operators and the CEO: contractors will operate day‑to‑day but cannot perform those enumerated legal duties.

Recordkeeping detail and distribution obligations. The Act prescribes granular recordkeeping across IDPs (s 11-13), behaviour management medication (s 27), restraint (s 32) and seclusion (s 36). Failure to include required details or to provide records to the chief advocate quarterly (s 42) or to guardians and advocates on request (s 10(6), s 14(2)) can cause regulatory non‑compliance. These obligations extend to recording observations, personnel involved, times and durations, and reasons for emergency actions.

Observation interval ceiling and emergency authorisations. Authorisations for restraint and seclusion must set observation intervals not longer than 15 minutes if continuous observation is not required (s 30(2)(e), s 34(2)(e)). Emergency use without prior authorisation is permitted but requires notification “as soon as practicable afterwards” to the CEO with reasons (ss 31(1)(b), 35(1)(b)); records must capture the time of notification and matters notified (ss 32(b)(ix), 36(b)(vi)). Failure to comply with these time and documentation ceilings risks non‑compliance and could trigger review or enforcement.

Clinical prescriber duties. Doctors must be satisfied behaviour management medication is in the resident’s best interests or the least restrictive option before prescribing for the primary purpose of controlling behaviour (s 26(1)). Administration is restricted to doctors or nurses under doctor direction and must follow prescribing directions with concomitant observation (s 26(2)). Because behaviour management medication is excluded from health care medication (s 25 definitions), clinicians must carefully document the primary purpose and observation details in the resident’s file and IDP (s 27).

Advocate compulsion and admissibility carve‑outs. Advocates can compel answers and assistance (s 54(5), (8)), and refusal is penalised (s 55). Compelled answers or assistance are immune from use against the respondent in criminal proceedings except for perjury or the offence under s 55(2) (s 55(6)). Practitioners and staff must therefore be aware that compelled disclosures may be protected from admissibility in criminal proceedings yet are still obligatory, creating operational friction with typical privilege practices.

Confidentiality exceptions. The confidentiality prohibition in s 59(1) carries a modest fine, but s 59(2) contains extensive exceptions for purposes of performing functions under the Act, providing declared place services, or as required by law, among others. Operational staff must navigate permitted disclosures carefully; the Act’s non‑exhaustive warrant of disclosure for protection of physical safety and law enforcement inquiries (s 59(2)(f)-(g)) could be invoked in urgent circumstances, but misuse risks disciplinary and criminal consequences.

Contractual penalties recoverable despite lack of loss. Section 47 allows contracts to provide for penalties that are recoverable even if no damage was suffered or if the penalty is unrelated to damage. This enables the Commission to include contractual penalty clauses that have disproportionate financial effects on contractors; prospective contractors must therefore manage commercial risk accordingly.

Ministerial tabling deadlines. The CEO must prepare reports and the Minister must table minimum standards, contracts and reports within 14 days (ss 46(2), 49(3)-(4), 56(5)). The laying mechanism includes transmission to the Clerk if a House is not sitting (s 62). Failure to meet tabling obligations does not retroactively validate non‑compliant standards or contracts and may create political accountability and reputational costs.

Search and seizure procedural constraints. Searches must, if practicable, be conducted by same‑gender persons for adults and must adhere to additional safeguards for minors, including the presence of another adult (s 24(2)-(3)). The search must be no more intrusive than reasonably necessary and the searched person must be allowed to dress promptly; replacement clothing must be provided if seizure leaves the person inadequately clothed (s 24(6)). Operational staff must observe these procedural constraints closely.

Immunity carve‑out for contractors. Section 61 grants tort immunity for persons acting in good faith under the Act but explicitly excludes contractors and subcontractors from that protection when considering contractor liability (s 61(2)-(4)). Contractors therefore cannot rely on the statutory immunity and face ordinary tort and contractual exposure for conduct while operating declared places.

Tribunal information flows and transitional obligations. The CEO and the Tribunal may exchange welfare and operational information (s 57). Transitional s 66 requires the CEO to deliver reports originally intended for the Board to the Tribunal when the CLMI amendments took effect. Practitioners must ensure legacy reporting obligations are tracked during transitions to avoid missed filings.

Review schedules and ministerial oversight. The Minister must review the operation and effectiveness of the Act as soon as practicable after the third anniversary of s 64 coming into operation and every five years thereafter (s 64). The periodic review creates compliance and documentation obligations tied to policy evaluation and possible future legislative change.

In sum, administrative, clinical and contractual actors must coordinate precision in authorisations, documentation, notification, reviews, and record transfers. The risks lie in mismatches between contracted operational delivery and CEO non‑delegable duties, missed recordkeeping or reporting windows, and failure to comply with tight observation and notification ceilings for regulated interventions.

Checklist for CEOs and Commission (operational and compliance controls)

IDP regime. Ensure an IDP is prepared for every resident per s 11. Establish written procedures to guarantee multidisciplinary assessment by two or more persons with different disciplinary backgrounds (s 12(1)), behavioural support specialist input where positive behaviour support is involved (s 12(2)), and consultation with the resident, advocate, guardian or enduring guardian and integral family/carer participants (s 12(4)). Implement review cycles to review each IDP within six months of preparation and annually thereafter, and to effect reviews on request when circumstances change (s 14).
Authorisations and documentation. Establish standard forms for CEO orders restricting communication (s 10(1)-(5)), restraint authorisations (s 30(2)), seclusion authorisations (s 34(2)), and clinical prescriptions for behaviour management medication (s 26(1)-(2)). Ensure each authorisation contains required fields: reasons, duration, maximum periods, observation intervals (not exceeding 15 minutes if not continually observed), special care measures, and dates/times (ss 10(5), 30(2), 34(2)).
Records and transmission. Create a secure file system compliant with s 27, s 32 and s 36 record content requirements for behaviour management medication, restraint and seclusion respectively. Implement quarterly data extraction protocols to transmit all documents included and information recorded under those sections to the chief advocate within each quarter (s 42). Maintain audit logs to evidence timely transmission.
Reviews of regulated behaviour management. Operationalise mandatory three‑monthly reviews by qualified persons to address appropriateness and further use of regulated behaviour management for any resident who has been subject to it, and ensure reviews are recorded in the resident’s file (s 43).
Reporting obligations. Train staff working in declared places on the duty to report suspected reportable incidents (ill‑treatment, wilful neglect, unlawful sexual contact, unreasonable use of force) to the CEO or nominated persons, the Director under Health and Disability Services (Complaints) Act, or police and ensure reporting pathways and written records are in place; non‑reporting attracts a $5,000 fine (s 15).
Delegation policy. Maintain a delegation register and ensure the CEO retains non‑delegable functions per s 20(6) and the Table. Where contractors operate services, embed governance mechanisms to preserve CEO involvement in reviews, reporting to the Tribunal, and receipt of reportable incidents.
Minimum standards and parliamentary tabling. Publish, maintain and vary minimum standards under s 46 with procedures to ensure a copy is laid before Parliament within 14 days of establishment or variation. Coordinate with the Minister’s office to meet tabling obligations for contracts and annual reports (s 49).
Confidentiality and information sharing. Implement privacy protocols mapping s 59’s permitted disclosures and exceptions. Ensure secure channels for information exchanges with the Tribunal, public sector agencies, police, prison and hospital superintendents and contractors as authorised in ss 57-58. Record consents where required to allow Ministerial reporting that might otherwise identify residents (s 56(4)).

Checklist for contractors and subcontractors

Contract compliance. Ensure every contract under s 44 contains the minimum matters outlined in s 45, including compliance with the Act and other laws (s 45(a)), Coroners Act obligations (s 45(b)), performance standards (s 45(c)), minimum standards compliance (s 45(e)), reporting procedures for specified events (s 45(j)), codes of ethics as approved by the CEO (s 45(i)), indemnities (s 45(l)), and notification of control or ownership changes (s 45(g)).
Non‑delegable functions. Understand that certain CEO functions cannot be delegated to contractors (s 20(6)); design service delivery models and governance arrangements to allow CEO to perform or oversee those functions.
Records and access. Maintain records to the exacting content specified in ss 27, 32 and 36, and implement processes to grant the Commission, CEO and CEO‑authorised persons unfettered access at any time to declared places, residents, staff and documents (s 48). Do not hinder authorised persons; s 48(5) penalises obstruction.
Clinical governance. Ensure doctors and nurses are registered under the Health Practitioner Regulation National Law (WA) and that prescribing and administration of behaviour management medication comply strictly with s 26. Keep contemporaneous medication records and observation notes specified in s 27(2).
Staff training. Provide staff training on the legal limits of restraint and seclusion, the requirement to use least restrictive options (ss 30(1)(b), 34(1)(c), s 40), observation intervals, emergency authorisation notification requirements, and welfare duties during interventions, including the 2‑hour health and welfare review after interventions (s 41(2)).

Checklist for clinicians

Prescription standards. Before prescribing behaviour management medication ensure the statutory tests in s 26(1) are satisfied and documented: either it is in the resident’s best interests or it is the least restrictive way to protect health and safety.
Administration and observations. Only administer behaviour management medication in line with s 26(2): through a doctor or a nurse acting under a doctor’s direction, according to directions on dose, route and frequency, and ensure observation regimes are followed and recorded per s 27(2)(f)-(g).

Checklist for advocates and chief advocate

Timely visitation. Ensure the chief advocate is notified of new residents by the CEO within 48 hours (s 52(1)), schedule initial visits within 7 days of arrival and subsequent visits at least 4 times a year, and respond to resident requests for contact within 72 hours (s 52(2)).
Record inspections and reporting. Use statutory powers to inspect and copy resident IDPs and files (s 54(7)), question staff as necessary (s 54(5)), and report to the CEO on matters requiring attention (s 56(2)). Prepare annual activity reports for the Minister and ensure confidentiality requirements in s 56(4) are observed.

Operational and compliance controls to implement

Standard operating procedures for searches and seizures. Adopt procedures aligned to s 24 concerning gender‑sensitive searching, limitations on removing inner clothing, provisions for minors including presence of an adult, the use of scanning devices, photography restrictions, brevity and minimisation of intrusiveness, and replacement clothing if seizures leave a person inadequately clothed (s 24(4)-(6)).
Emergency response protocols. Ensure emergency authorisations for restraint or seclusion without prior written authorisation are promptly recorded and notified to the CEO as soon as practicable with reasons, and that such events are meticulously documented in the resident’s file per ss 31(1)(b), 35(1)(b), 32(b)(ix), 36(b)(vi).
Audit and quality assurance. Establish internal audit cycles to monitor IDP preparation and review timelines, completeness of records for regulated behaviour management, timely quarterly submissions to the chief advocate, three‑monthly reviews, and contractor compliance with minimum standards. Ensure Ministerial tabling deadlines and annual report submissions by 30 September each year are met (s 49(1)).
Contracts and insurance. Contractors should ensure contracts allocate risk for penalties under s 47, maintain insurance and contingency funds for contractual penalties and indemnities (s 45(l)), and document succession plans to notify the CEO of changes in control, management or ownership (s 45(g)).
Legal and ethical training. Provide training to staff about the statutory prohibition on ill‑treatment (s 16), the reporting obligation for reportable incidents (s 15), confidentiality constraints and exceptions (s 59), and the interplay with GAA Act obligations for urgent treatment documentation and guardian notification (s 17(5)-(6)).

These compliance measures translate the Act’s prescriptive content,authorisations, observation intervals, records, reporting and review schedules,into operational processes. Compliance is multidimensional: clinical practice must acknowledge statutory thresholds and documentation, administrative staff must deliver records and enable CEO functions that cannot be delegated, contractors must accept contractual and regulatory monitoring, and advocates must be enabled to exercise statutory access powers.

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