196Application for review, variation or revocation

196 Application for review, variation or revocation S. 196(1) amended by No. 9/2023 s. 62(1)(a). (1) The Senior Practitioner, the Authorised Program Officer for a primary service provider or the person subject to a supervised treatment order may apply to VCAT— (a) for a review of the supervised treatment order or the treatment plan; S. 196(1)(b) amended by No. 19/2019 s. 104(1), substituted by No. 9/2023 s. 62(1)(b). (b) except as provided under subsection (2), to vary the supervised treatment order or the treatment plan; (c) to have the supervised treatment order revoked. S. 196(2) substituted by No. 9/2023 s. 62(2). (2) An application may not be made under subsection (1)(b) if— (a) the person who is subject to the supervised treatment order is an NDIS participant; and (b) the treatment plan is also to be used as the NDIS participant's NDIS behaviour support plan; and (c) a registered NDIS provider will administer the restrictive practices; and (d) the proposed variation— (i) includes any regulated restrictive practices; or (ii) would result in the treatment plan being unable to be implemented. (3) If the Public Advocate considers that a supervised treatment order should be reviewed by VCAT, the Public Advocate may request the Senior Practitioner to make an application under subsection (1). (4) If the Senior Practitioner declines to make an application under subsection (1) requested by the Public Advocate, the Public Advocate may make an application under subsection (1). S. 196(4A) inserted by No. 9/2023 s. 62(3). (4A) The applicant under subsection (1) must notify the following persons of the application (unless the person to be notified is a party to the proceeding)— (b) the Public Advocate. S. 196(4B) inserted by No. 9/2023 s. 62(3). (4B) The following persons are parties to a proceeding relating to an application under subsection (1)— S. 196(4C) inserted by No. 9/2023 s. 62(3). (4C) If the Senior Practitioner was a party to a proceeding under section 191 or 194 in relation to the person who is subject to the supervised treatment order, the Senior Practitioner is a party to a proceeding relating to an application under subsection (1). S. 196(4D) inserted by No. 9/2023 s. 62(3). (4D) If the Public Advocate was a party to a proceeding under section 191 or 194 in relation to the person who is subject to the supervised treatment order, the Public Advocate is a party to a proceeding relating to an application under subsection (1). S. 196(4E) inserted by No. 9/2023 s. 62(3). (4E) On the application of the Senior Practitioner, VCAT must join the Senior Practitioner as a party to a proceeding relating to an application under subsection (1). S. 196(4F) inserted by No. 9/2023 s. 62(3). (4F) On the application of the Public Advocate, VCAT must join the Public Advocate as a party to a proceeding relating to an application under subsection (1). (5) On an application under subsection (1)(a) for a review of the supervised treatment order or the treatment plan, VCAT may— S. 196(5)(a) amended by Nos 19/2019 s. 104(2), 9/2023 s. 62(4)(a)(i). (a) if VCAT is satisfied that the matters specified in sections 191(1)(a) to (c) and 193(1A) continue to apply— (i) confirm the supervised treatment order or treatment plan; or S. 196(5)(a)(ii) amended by No. 19/2019 s. 104(3), substituted by No. 9/2023 s. 62(4)(a)(ii). (ii) confirm the supervised treatment order or treatment plan subject to any variation that VCAT considers appropriate, unless— (A) the supervised treatment order is for an NDIS participant who will be subject to the use of restrictive practices by a registered NDIS provider; and (B) the treatment plan is to be used as the NDIS participant's NDIS behaviour support plan; and (C) the proposed variation relates to any regulated restrictive practices or would result in the NDIS participant's treatment plan being unable to be implemented; or S. 196(5)(b) amended by Nos 19/2019 s. 104(2), 9/2023 s. 62(4)(b). (b) if VCAT is not satisfied that the matters specified in sections 191(1)(a) to (c) and 193(1A) continue to apply, revoke the supervised treatment order. (6) On an application under subsection (1)(b) to vary the supervised treatment order or the treatment plan, VCAT may— (a) if VCAT is satisfied that the variation is appropriate— (i) subject to subsection (7), confirm the variation to the supervised treatment order or treatment plan; or (ii) subject to subsection (7), confirm the variation to the supervised treatment order or treatment plan subject to any further variation that VCAT considers appropriate; or (b) if VCAT is not satisfied that the variation is appropriate reject the application. S. 196(7) substituted by No. 19/2019 s. 104(4). (7) VCAT must not confirm the variation of a supervised treatment order or treatment plan under subsection (6)(a) unless VCAT is satisfied that— (a) the disability service provider or registered NDIS provider, as the case requires, can implement the variation of the supervised treatment order or the treatment plan; and S. 196(7)(b) substituted by No. 9/2023 s. 62(5). (b) if the supervised treatment order is for an NDIS participant who will be subject to the use of restrictive practices by a registered NDIS provider and the treatment plan is also to be used as the NDIS participant's NDIS behaviour support plan, the proposed variation— (i) does not relate to any regulated restrictive practices; and (ii) would not result in the NDIS participant's treatment plan being unable to be implemented; and S. 196(7)(c) inserted by No. 9/2023 s. 62(5). (c) if the proposed variation is to change the primary service provider stated in the supervised treatment order, the proposed new primary service provider satisfies the requirements in section 3C(1) or (2). (8) On an application under subsection (1)(c) for the supervised treatment order to be revoked, VCAT may— S. 196(8)(a) amended by Nos 19/2019 s. 104(2), 9/2023 s. 62(6). (a) if VCAT is satisfied that any of the matters specified in sections 191(1)(a) to (c) and 193(1A) have ceased to apply, revoke the supervised treatment order; or S. 196(8)(b) amended by Nos 19/2019 s. 104(2), 9/2023 s. 62(6). (b) if VCAT is satisfied that the matters specified in sections 191(1)(a) to (c) and 193(1A) continue to apply— (i) subject to subsection (9), confirm the supervised treatment order; or (ii) subject to subsection (9), confirm the supervised treatment order subject to any variation that VCAT considers appropriate. S. 196(9) substituted by No. 19/2019 s. 104(5). (9) VCAT must not confirm a supervised treatment order under subsection (8)(b) unless VCAT is satisfied that— S. 196(9)(a) amended by No. 9/2023 s. 62(7)(a). (a) the disability service provider or registered NDIS provider, as the case requires, can implement the supervised treatment order or variation; and S. 196(9)(b) substituted by No. 9/2023 s. 62(7)(b). (b) if the supervised treatment order is for an NDIS participant who will be subject to the use of restrictive practices by a registered NDIS provider and the treatment plan is also to be used as the NDIS participant's NDIS behaviour support plan, any variation— (i) does not relate to any regulated restrictive practices; and (ii) would not result in the NDIS participant's treatment plan being unable to be implemented. S. 196A inserted by No. 22/2012 s. 79, amended by No. 19/2019 s. 105, substituted by No. 9/2023 s. 63.