New South Wales act

Mental Health Act 2007

In ForceNSW

Jurisdiction

New South Wales

Act Number

8 of 2007

Collection

act

Plain English Summary

7/10 complexity

The Mental Health Act 2007 sets NSW’s legal framework for admitting, detaining, treating and reviewing people with mental illness or severe disturbance. It governs voluntary and limited involuntary entry routes, who may lawfully detain or order review (clinicians, police/ambulance, courts and the Tribunal), and procedural safeguards including medical re‑examinations, review rights, carer consultation and confidentiality.

It matters because it balances rapid protective powers with time‑bound safeguards and regulatory detail, shaping clinicians’ and facilities’ administrative and legal obligations.

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What it does

The Mental Health Act 2007 (NSW) establishes a comprehensive framework for the care, treatment and recovery of persons who are mentally ill or mentally disordered (s3). Its core function is to authorise and regulate both voluntary and involuntary pathways into mental health facilities while mandating that any restriction on liberty be the minimum necessary and only where no less restrictive, safe and effective care is available (s12(1)(b)).

Chapter 2 governs voluntary admission. A person may request admission as a voluntary patient (s5(1)). An authorised medical officer may refuse if the person is unlikely to benefit (s5(2)). Special rules apply to children (s6) and persons under guardianship (s7): parents or guardians must be notified, and objections or requests for discharge must generally be respected. Voluntary patients may discharge themselves at any time (s8(2)) but the Tribunal must review any voluntary patient who has received care for a continuous period exceeding 12 months (s9(1)). An authorised medical officer may detain a voluntary patient under Part 2 of Chapter 3 if the officer considers the person meets the criteria for a mentally ill or mentally disordered person (s10(1)).

Chapter 3 sets out the criteria and procedures for involuntary admission, detention and treatment. A person is a mentally ill person if suffering from mental illness and, owing to that illness, care, treatment or control is necessary for the person’s own protection from serious harm or the protection of others from serious harm (s14(1)). Continuing condition and likely deterioration must be considered (s14(2)). A mentally disordered person is one whose behaviour is so irrational as to justify temporary care, treatment or control for protection from serious physical harm (s15). Section 16 lists matters that cannot, of themselves, indicate mental illness or disorder (political or religious opinion, sexual orientation, intellectual disability, drug or alcohol use, anti-social behaviour, etc.), although physiological effects of substance use may still be taken into account (s16(2)).

Current sections

Direct links to the current provisions in Mental Health Act 2007.

234

Name of Act

1 Name of Act

This Act is the Mental Health Act 2007.

Commencement

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

Objects of Act

3 Objects of Act

The objects of this Act are—

(a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and

(b) to facilitate the care and treatment of those persons through community care facilities, and

(c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and

(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and

(e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.

Note.

See also section 68 which contains principles for care and treatment and section 105 which sets out objectives for the New South Wales public health system.

s 3: Am 2014 No 85, Sch 1 [2]–[4].

Definitions

4 Definitions

(1) In this Act—

accredited person means a person accredited under section 136.

ambulance officer means a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act.

assessable person—see section 17.

authorised medical officer of a mental health facility means—

(a) the medical superintendent of the mental health facility, or

(b) a medical officer, nominated by the medical superintendent for the purposes of this Act, attached to the mental health facility concerned.

community treatment order means a community treatment order in force under Part 3 of Chapter 3.

correctional patient has the same meaning as it has in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Court means the Supreme Court.

declared mental health facility means premises subject to an order in force under section 109.

Deputy President means a person appointed as a Deputy President of the Tribunal.

designated carer—see section 71.

determination of the Tribunal includes an order, direction or decision of the Tribunal.

director of community treatment—see section 50.

exercise a function includes perform a duty.

forensic patient has the same meaning as it has in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

function includes a power, authority or duty.

guardian, in relation to the exercise of any function under this Act by the guardian of a person under guardianship, means a guardian who is able to exercise that function.

involuntary patient means—

(a) a person who is ordered to be detained as an involuntary patient after a mental health inquiry or otherwise by the Tribunal, or

(b) a forensic patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, or

(c) a correctional patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

medical superintendent—

(a) of a declared mental health facility, means the medical practitioner appointed, under section 111, as medical superintendent of the facility, or

(b) of a private mental health facility, means the medical practitioner appointed, under section 124, as medical superintendent of the facility.

mental health certificate—see section 17.

mental health facility means a declared mental health facility or a private mental health facility.

mental health inquiry means an inquiry conducted by the Tribunal under Division 3 of Part 2 of Chapter 3.

mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms—

(a) delusions,

(b) hallucinations,

(c) serious disorder of thought form,

(d) a severe disturbance of mood,

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

mentally disordered person—see section 15.

mentally ill person—see section 14.

parent, of a child, means any person having parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child.

patient means a person who is admitted to a mental health facility in accordance with this Act and who is in the facility following the person’s admission, and includes a person so admitted while absent from the facility either with or without leave of absence.

person under guardianship means a person under guardianship within the meaning of the Guardianship Act 1987.

premises includes any land, building and part of any building.

President means the President of the Tribunal.

principal care provider—see section 72A.

private mental health facility means premises subject to a licence under Division 2 of Part 2 of Chapter 5.

Secretary means the Secretary of the Ministry of Health.

spouse means—

(a) the person to whom a person is legally married (including the husband or wife of a person), or

(b) a de facto partner,

but where more than one person would qualify as a spouse, means only the last person to so qualify.

Note.

“De facto partner” is defined in section 21C of the Interpretation Act 1987.

surgical operation—see section 98.

Tribunal means the Mental Health Review Tribunal constituted under Chapter 6.

voluntary patient means—

(a) a person who has been admitted to a mental health facility under Chapter 2, or

(b) a person who has been re-classified as a voluntary patient under this Act.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2) Notes included in this Act (other than in Schedule 1) do not form part of this Act.

s 4: Am 2007 No 82, Sch 2.9; 2008 No 79, Sch 2 [1] [2]; 2008 No 107, Sch 16 [1] [2]; 2010 No 19, Sch 3.65 [1] [2]; 2013 No 24, Sch 5 [1]; 2014 No 85, Sch 1 [5] [6]; 2018 No 28, Sch 1.20; 2020 No 12, Sch 3.17[1]–[3].

Admission on own request

5 Admission on own request

(1) A person may be admitted to a mental health facility as a voluntary patient.

(2) An authorised medical officer may refuse to admit a person to a mental health facility as a voluntary patient if the officer is not satisfied that the person is likely to benefit from care or treatment as a voluntary patient.

(3) A person may be admitted to a mental health facility as a voluntary patient whether or not the person is a mentally ill person or a mentally disordered person.

Voluntary admission of children

6 Voluntary admission of children

(cf 1990 Act, ss 13–15)

(1) An authorised medical officer must, as soon as practicable after admitting a person under the age of 16 years as a voluntary patient, take all reasonably practicable steps to notify a parent of the person of the admission.

(2) An authorised medical officer must discharge a person of 14 or 15 years of age who has been admitted as a voluntary patient if a parent of the person objects to the admission to the officer, unless the person elects to continue as a voluntary patient.

(3) A person under the age of 14 years must not be admitted as a voluntary patient if a parent of the person objects to the admission to an authorised medical officer.

(4) An authorised medical officer must discharge a person under the age of 14 years who has been admitted as a voluntary patient if a parent of the person requests that the person be discharged.

Voluntary admission of persons under guardianship

7 Voluntary admission of persons under guardianship

(cf 1990 Act, s 16)

(1) A person under guardianship may be admitted to a mental health facility as a voluntary patient if the guardian of the person makes a request to an authorised medical officer.

(2) A person under guardianship must not be admitted as a voluntary patient if the person’s guardian objects to the admission to the authorised medical officer.

(3) An authorised medical officer must discharge a person under guardianship who has been admitted as a voluntary patient if the person’s guardian requests that the person be discharged.

Discharge of voluntary patients

8 Discharge of voluntary patients

(cf 1990 Act, s 65)

(1) An authorised medical officer may discharge a voluntary patient at any time if the officer is of the opinion that the patient is not likely to benefit from further care or treatment as a voluntary patient.

(2) A voluntary patient may discharge himself or herself from or leave a mental health facility at any time.

(3) An authorised medical officer must give notice of the discharge of a voluntary patient who is a person under guardianship to the person’s guardian.

Note.

Section 79 provides for appropriate information relating to follow-up care to be provided to patients being discharged.

Review of voluntary patients

9 Review of voluntary patients

(cf 1990 Act, s 63)

(1) The Tribunal must review, at least once every 12 months, the case of each voluntary patient who has been receiving care or treatment, or both, whether in a voluntary or involuntary capacity in a mental health facility for a continuous period of more than 12 months.

(2) In addition to any other matters it considers on a review, the Tribunal is to consider whether the patient consents to continue as a voluntary patient and whether the patient is likely to benefit from further care or treatment as a voluntary patient.

(3) The Tribunal may on a review order the discharge of the patient from the mental health facility.

(4) The Tribunal may defer the operation of an order for the discharge of a patient for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.

(5) The medical superintendent of a mental health facility must notify the Tribunal of the name of any voluntary patient whose case the Tribunal is required to review.

s 9: Am 2014 No 85, Sch 1 [7] [8].

Detention of voluntary patients in mental health facilities

10 Detention of voluntary patients in mental health facilities

(cf 1990 Act, s 18A)

(1) An authorised medical officer may cause a voluntary patient to be detained in a mental health facility under Part 2 of Chapter 3 if the officer considers the person to be a mentally ill person or a mentally disordered person.

(2) Any such patient is taken to have been detained in the facility under section 19 when the authorised medical officer takes action to detain the patient.

(3) A voluntary patient in a mental health facility may be detained for a period of up to 2 hours for the purpose of enabling an authorised medical officer to exercise the officer’s functions under this section.

s 10: Am 2014 No 85, Sch 1 [9].

Review of decisions made by authorised medical officer to refuse admission or discharge voluntary patient

11 Review of decisions made by authorised medical officer to refuse admission or discharge voluntary patient

(cf 1990 Act, s 19)

(1) This section applies to a decision made under this Chapter by an authorised medical officer (other than a medical superintendent) to refuse a person admission to a mental health facility as a voluntary patient or to discharge a person as a voluntary patient.

(2) The person affected by a decision may apply to the medical superintendent for a review of the decision.

(3) The medical superintendent must review a decision as soon as practicable after receiving an application for its review and may confirm the decision, admit or discharge the person as a voluntary patient or take any other action under this Act that the medical superintendent thinks fit.

Part 1

Requirements for involuntary admission, detention and treatment

Part 1 Requirements for involuntary admission, detention and treatment

General restrictions on detention of persons

12 General restrictions on detention of persons

(1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that—

(a) the person is a mentally ill person or a mentally disordered person, and

(b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

(2) If an authorised medical officer is not of that opinion about a patient or other person at a mental health facility, the officer must refuse to detain, and must not continue to detain, the person.

(3) An authorised medical officer may, immediately on discharging a patient or person who has been detained in a mental health facility, admit that person as a voluntary patient.

s 12: Am 2008 No 79, Sch 2 [3].

Criteria for involuntary admission etc as mentally ill person or mentally disordered person

13 Criteria for involuntary admission etc as mentally ill person or mentally disordered person

(cf 1990 Act, s 8)

A person is a mentally ill person or a mentally disordered person for the purpose of—

(a) the involuntary admission of the person to a mental health facility or the detention of the person in a facility under this Act, or

(b) determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a mental health facility,

if, and only if, the person satisfies the relevant criteria set out in this Part.

Mentally ill persons

14 Mentally ill persons

(cf 1990 Act, s 9)

(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary—

(a) for the person’s own protection from serious harm, or

(b) for the protection of others from serious harm.

(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.

Mentally disordered persons

15 Mentally disordered persons

(cf 1990 Act, s 10)

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary—

(a) for the person’s own protection from serious physical harm, or

(b) for the protection of others from serious physical harm.

Certain words or conduct may not indicate mental illness or disorder

16 Certain words or conduct may not indicate mental illness or disorder

(cf 1990 Act, s 11)

(1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following—

(a) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief,

(b) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief,

(c) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy,

(d) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation,

(d1) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular gender identity or gender expression,

(e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity,

(f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity,

(g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity,

(h) the person engages in or has engaged in immoral conduct,

(i) the person engages in or has engaged in illegal conduct,

(j) the person has an intellectual disability or developmental disability,

(k) the person takes or has taken alcohol or any other drug,

(l) the person engages in or has engaged in anti-social behaviour,

(m) the person has a particular economic or social status or is a member of a particular cultural or racial group.

(2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind.

s 16: Am 2014 No 85, Sch 1 [10]; 2024 No 71, Sch 6.

Part 2

Involuntary detention and treatment in mental health facilities

Part 2 Involuntary detention and treatment in mental health facilities

Division 1

Preliminary

Division 1 Preliminary

Definitions

17 Definitions

In this Part—

assessable person means a person detained in a declared mental health facility for whom a mental health inquiry is required to be held under this Part.

mental health certificate means a certificate given under section 19.

Division 2

Admission to and initial detention in mental health facilities

Division 2 Admission to and initial detention in mental health facilities

When a person may be detained in mental health facility

18 When a person may be detained in mental health facility

(1) A person may be detained in a declared mental health facility in the following circumstances—

(a) on a mental health certificate given by a medical practitioner or accredited person (see section 19),

(b) after being brought to the facility by an ambulance officer (see section 20),

(c) after being apprehended by a police officer (see section 22),

(d) after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23),

(e) on the order of a Judge of the Local Court (see section 24),

(f) after a transfer from another health facility (see section 25),

(g) on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26).

(2) A person may be detained, under a provision of this Part, in a health facility that is not a declared mental health facility if it is necessary to do so to provide medical treatment or care to the person for a condition or illness other than a mental illness or other mental condition.

(3) In this Act, a reference to taking to and detaining in a mental health facility includes, in relation to a person who is at a mental health facility, but not detained in the mental health facility in accordance with this Act, the detaining of the person in the mental health facility.

Note 1—

A person taken to and detained in a mental health facility must be provided with certain information, including a statement of the person’s rights (see section 74).

Note 2—

A person authorised to be taken to and detained in a mental health facility under this Division may be taken to the facility by a person listed in section 81.

s 18: Am 2014 No 85, Sch 1 [11]; 2022 No 41, Sch 6[1] [2]; 2025 No 61, Schs 2.63[1], 3.10[1].

Detention on certificate of medical practitioner or accredited person

19 Detention on certificate of medical practitioner or accredited person

(cf 1990 Act, s 21)

(1) A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1.

(2) A mental health certificate may be given about a person only if the medical practitioner or accredited person—

(a) has personally examined or observed the person’s condition immediately before or shortly before completing the certificate, and

(b) is of the opinion that the person is a mentally ill person or a mentally disordered person, and

(c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary, and

(d) is not a designated carer, the principal care provider or a near relative of the person.

(3) A mental health certificate may contain a police assistance endorsement that police assistance is required if the person giving the certificate is of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer. The endorsement is to be in the form set out in Part 2 of Schedule 1.

(4) A mental health certificate may not be used to admit or detain a person in a facility—

(a) in the case of a person certified to be a mentally ill person, more than 5 days after it is given, or

(b) in the case of a person certified to be a mentally disordered person, more than one day after it is given.

(5) In this section—

near relative of a person means a parent, brother, sister, child or spouse of the person and any other person prescribed for the purposes of this definition.

s 19: Am 2014 No 85, Sch 1 [12].

19A

Examination by audio visual link for purposes of mental health certificate

19A Examination by audio visual link for purposes of mental health certificate

(1) A medical practitioner or accredited person may examine or observe a person’s condition using an audio visual link for the purpose of determining whether to issue a mental health certificate if it is not reasonably practicable for a medical practitioner or accredited person to personally examine or observe the person for that purpose.

(2) A medical practitioner or accredited person must not carry out an examination or observation using an audio visual link unless the medical practitioner or accredited person is satisfied that the examination or observation can be carried out in those circumstances with sufficient skill and care so as to form the required opinion about the person.

(3) The regulations may make provision for or with respect to the audio visual link technology that may be used for the purposes of this section and the medical practitioners who may examine or observe a person for the purposes of this section.

s 19A: Ins 2014 No 85, Sch 1 [13].

Detention on information of ambulance officer

20 Detention on information of ambulance officer

(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

Police assistance

21 Police assistance

(1) A police officer to whose notice a police assistance endorsement on a mental health certificate, or a request for assistance by an ambulance officer under this Division, is brought must, if practicable—

(a) apprehend and take or assist in taking the person the subject of the certificate or request to a declared mental health facility, or

(b) cause or make arrangements for some other police officer to do so.

(2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Note.

Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.

Detention after apprehension by police

22 Detention after apprehension by police

(cf 1990 Act, s 24)

(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that—

(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

(2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Detention after order for medical examination or observation

23 Detention after order for medical examination or observation

(cf 1990 Act, s 27)

(1) A Judge of the Local Court or authorised officer may, by order, authorise a medical practitioner or accredited person to visit and to personally examine or personally observe a person to ascertain whether a mental health certificate should be issued for the person.

(2) An order may be made if the judge or officer is satisfied, by evidence on oath, that—

(a) the person may be a mentally ill person or a mentally disordered person, and

(b) because of physical inaccessibility, the person could not otherwise be personally examined or personally observed.

(3) The order may also authorise any other person (including a police officer) who may be required to assist the medical practitioner or accredited person to accompany the medical practitioner or accredited person.

(4) A person authorised to visit a person or accompany another person may enter premises, if need be by force, in order to enable the examination or observation to be carried out.

(5) A person who is examined or observed under this section may be detained in accordance with section 19.

(6) A person who takes action under an order must, as soon as practicable after taking the action, notify the person who made the order in writing of the action.

(7) In this section—

authorised officer means an authorised officer within the meaning of the Criminal Procedure Act 1986.

s 23: Am 2025 No 61, Sch 2.63[2] [3].

Detention on order of Judge

24 Detention on order of Judge

(cf 1990 Act, s 25)

A person may be taken to and detained in a declared mental health facility in accordance with an order made under Division 3 of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

s 24: Am 2008 No 79, Sch 2 [4]; 2020 No 12, Sch 3.17[4]; 2025 No 61, Schs 2.63[4], 3.10[1].

Detention after transfer from another health facility

25 Detention after transfer from another health facility

(1) A person may be transferred from a health facility to a declared mental health facility and detained in the mental health facility if a medical officer of the health facility, or the authorised medical officer of the mental health facility, considers the person to be a mentally ill person or a mentally disordered person.

(2) Any such person is taken to have been detained in the declared mental health facility under section 19 when the person is transferred to the facility.

Detention on request of designated carer, principal care provider, relative or friend

26 Detention on request of designated carer, principal care provider, relative or friend

(cf 1990 Act, s 23)

(1) A person may be detained in a declared mental health facility on a written request made to the authorised medical officer by a designated carer, the principal care provider or a relative or friend of the person.

(2) An authorised medical officer must not detain any such person unless the officer is satisfied that, because of the distance required in order for the person to be examined and the urgency of the circumstances, it is not reasonably practicable to have the person detained on the basis of a mental health certificate.

s 26: Am 2014 No 85, Sch 1 [14].

Steps for medical examination requirements for ongoing detention in mental health facility

27 Steps for medical examination requirements for ongoing detention in mental health facility

(1) The following steps must be taken in relation to a person who is detained in a mental health facility under this Division—

(a) Step 1 Initial examination by authorised medical officer

An authorised medical officer must examine the person as soon as practicable (but not later than 12 hours) after the person arrives at the facility or after the person is detained after being a voluntary patient.

The person must not be detained after the examination unless the officer certifies that, in the officer’s opinion, the person is a mentally ill person or a mentally disordered person.

(b) Step 2 Examination by second medical practitioner

The authorised medical officer must cause the person to be examined by another medical practitioner as soon as possible after giving the certificate in step 1. The second examiner must be a psychiatrist if the authorised medical officer is not a psychiatrist.

The second examiner must notify the authorised medical officer if of the opinion that the person is a mentally ill person or a mentally disordered person or if not able to form such an opinion.

(c) Step 3 Examination by third medical practitioner if second examiner does not find person to be mentally ill or mentally disordered

If the second examiner is not of the opinion that the person is a mentally ill person or a mentally disordered person, the authorised medical officer must cause the person to be examined by a medical practitioner who is a psychiatrist, as soon as practicable after being notified of that opinion.

The third examiner must notify the authorised medical officer if of the opinion that the person is a mentally ill person or a mentally disordered person.

(d) Step 4 Mental health inquiry or discharge

An authorised medical officer must notify the Tribunal and bring the person before the Tribunal for a mental health inquiry if—

(i) the person is found to be a mentally ill person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person or a mentally disordered person on examination in step 2 or step 3, or

(ii) the person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person on examination in step 2 or step 3.

The person must be brought before the Tribunal as soon as practicable after admission (subject to meeting the requirements set out above).

If the third examiner does not find that the person is a mentally ill person or a mentally disordered person, the person must not be detained after the third examination.

(e) Step 5 Mentally disordered persons

If a person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and is found to be a mentally disordered person on examination in step 2 or step 3, the person may be detained in the mental health facility as a mentally disordered person.

(2) Any certification under subsection (1) (a) or notification under subsection (1) (b) or (c) of the opinion that a person is, after an examination under this section or section 27A, a mentally ill person or a mentally disordered person, is to be in the form prescribed by the regulations.

(3) Any form used for the purposes of this section or section 27A (as in force immediately before the commencement of this subsection) is, until such time as a form is prescribed for the purposes of subsection (2), taken to be the form so prescribed.

s 27: Am 2008 No 107, Sch 16 [3] [4]; 2016 No 27, Sch 1.15 [1] [2].

27A

Examinations by medical practitioners or accredited persons for purposes of detention

27A Examinations by medical practitioners or accredited persons for purposes of detention

(1) If it is not reasonably practicable for an authorised medical officer of a mental health facility or other medical practitioner to personally examine a person or observe the person’s condition for the purpose of determining under section 27 whether the person is a mentally ill person or a mentally disordered person, the person may be examined or observed for that purpose—

(a) by a medical practitioner using an audio visual link, or

(b) by an accredited person authorised by the medical superintendent of the mental health facility to examine or observe the person or observe for that purpose—

(i) in person, or

(ii) using an audio visual link.

(2) The examination or observation must be carried out by a medical practitioner who is a psychiatrist if that is a requirement of section 27.

(3) A medical practitioner or accredited person must not carry out an examination or observation using an audio visual link under this section unless the medical practitioner or accredited person is satisfied that the examination or observation can be carried out in the circumstances with sufficient skill and care so as to form the required opinion about the person.

(4) A medical practitioner who is not a psychiatrist, or an accredited person, who examines or observes a person under this section must, if it is reasonably practicable to do so, seek the advice of a psychiatrist before making a determination as to whether the person is a mentally ill person or a mentally disordered person. The psychiatrist is not required to examine or observe the person.

(5) The regulations may make provision for or with respect to the audio visual link technology that may be used for the purposes of this section and the medical practitioners who may examine or observe a person for the purposes of this section.

s 27A: Ins 2014 No 85, Sch 1 [15]. Am 2022 No 5, Sch 1.12[1] [2].

Obligations of examining medical practitioners and accredited persons

28 Obligations of examining medical practitioners and accredited persons

(1) An authorised medical officer or other medical practitioner or accredited person who examines a person detained in a mental health facility under this Division may take into account his or her own observations and any other available evidence that he or she considers reliable and relevant in forming an opinion as to whether the person is a mentally ill person or a mentally disordered person.

(2) A medical practitioner or accredited person on whose certificate or request a person has been admitted to a mental health facility must not examine the person under section 27 or 27A.

s 28: Am 2014 No 85, Sch 1 [16] [17].

28A

Tribunal to be informed if detained person is a forensic patient

28A Tribunal to be informed if detained person is a forensic patient

If an authorised medical officer of a mental health facility becomes aware that a person detained in the mental health facility under this Division is a forensic patient, the officer is, as soon as is reasonably practicable, to notify the Tribunal.

s 28A: Ins 2013 No 24, Sch 5 [2].

Treatment of persons detained in mental health facilities

29 Treatment of persons detained in mental health facilities

(cf 1990 Act, s 31)

A person who authorises the administration of any medication to a person detained in a mental health facility under this Division—

(a) must have due regard to the possible effects of the administration of the medication, and

(b) must prescribe the minimum medication, consistent with proper care, to ensure that the person is not prevented from communicating adequately with any other person who may be engaged to represent the person at a mental health inquiry.

Assessable persons may be reclassified as voluntary patients

30 Assessable persons may be reclassified as voluntary patients

(cf 1990 Act, s 54)

An authorised medical officer may classify an assessable person as a voluntary patient at any time before a mental health inquiry is held about the person, but only if—

(a) the authorised medical officer is of the opinion that the person is likely to benefit from care or treatment as a voluntary patient, and

(b) the patient agrees to be so classified or, if the person is a person under guardianship or is under the age of 14 years, the person is admitted in accordance with the procedures under this Act applicable to admitting any such person as a voluntary patient.

Limited detention of mentally disordered persons

31 Limited detention of mentally disordered persons

(cf 1990 Act, s 35)

(1) A person detained as a mentally disordered person under step 5 in section 27 (e) must not be detained in a mental health facility for a continuous period of more than 3 days (not including weekends and public holidays).

(2) If an authorised medical officer of a mental health facility is of the opinion that an assessable person has ceased to be a mentally ill person but is a mentally disordered person, the person must not be further detained in the facility for a continuous period of more than 3 days (not including weekends and public holidays).

(3) An authorised medical officer must examine a mentally disordered person detained in a mental health facility at least once every 24 hours.

(4) The person must not be further detained in the mental health facility if, on any such examination, the authorised medical officer is of the opinion that the person is not a mentally disordered person or a mentally ill person or that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

(5) A person must not be admitted to and detained in a mental health facility on the grounds that the person is a mentally disordered person on more than 3 occasions in any 1 calendar month.

s 31: Am 2008 No 79, Sch 2 [5].

Detention on order of Judge

32 Detention on order of Judge

(cf 1990 Act, ss 36, 37, 37A)

(1) This section applies to a person detained in a mental health facility under this Part who is required not to be detained or further detained in the facility and who was taken to the facility—

(a) by a police officer under this Division after being apprehended by a police officer because the officer believed the person to be committing or to have recently committed an offence, or

(b) on the order of a Judge of the Local Court under Division 3 of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

(2) An authorised medical officer must release the person into the custody of any relevant person who is present at the mental health facility to ascertain the results of any examination or examinations of the person.

(3) If a relevant person is not so present when the authorised medical officer becomes aware that the person must not be detained or further detained, the authorised medical officer must, as soon as practicable, notify a police officer at the appropriate police station that the person will not be further detained.

(4) The authorised medical officer may take any of the following actions in relation to a person (other than a person referred to in subsection (5)), after considering any matter communicated by a police officer as to the intended apprehension of the person by a police officer—

(a) detain the person for a period not exceeding 2 hours pending the person’s apprehension by a police officer,

(b) admit the person in accordance with this Act as a voluntary patient,

(c) discharge the person, in so far as it may be possible to do so, into the care of a designated carer or the principal care provider of the person,

(d) discharge the person.

(5) If the person is a person ordered to be brought back before a court under section 19(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020—

(a) it is the duty of the police officer notified by the authorised medical officer to ensure that a police officer attends the mental health facility and apprehends the person as soon as practicable after notification, and

(b) the authorised medical officer must detain the person pending the person’s apprehension by a police officer.

(6) A police officer may apprehend a person under this section without a warrant.

(7) In subsections (2) and (3)—

relevant person means—

(a) if the detained person was taken to the mental health facility on an order under Division 3 of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, any person (including a police officer) charged by the order with taking the person from the facility, or

(b) in any other case, a police officer.

s 32: Am 2008 No 79, Sch 2 [6]; 2009 No 56, Sch 1.25 [1] [2]; 2014 No 85, Sch 1 [18] [19]; 2017 No 44, Sch 1.19; 2020 No 12, Sch 3.17[5] [6]; 2025 No 61, Schs 2.63[1] [4], 3.10[1]–[3].

Actions may be delayed because of other illnesses or conditions

33 Actions may be delayed because of other illnesses or conditions

Despite any other provision of this Act, an authorised medical officer is not required—

(a) to take or complete a step referred to in section 27, or

(b) to bring a person before the Tribunal for a mental health inquiry,

while the person is suffering from a condition or illness other than a mental illness or other mental condition and is not, in the officer’s opinion, fit to be the subject of the proposed action due to the seriousness of the person’s condition or illness.

s 33: Am 2008 No 107, Sch 16 [5].

Division 3

Continuing detention in mental health facilities

Division 3 Continuing detention in mental health facilities

Mental health inquiries to be held

34 Mental health inquiries to be held

(1) The Tribunal must hold an inquiry about an assessable person under step 4 in section 27 (d).

Note.

Section 27 sets out the events that result in a mental health inquiry. Notice of the inquiry is to be given to the person concerned, and all reasonably practicable steps are to be taken to notify designated carers and the principal care provider in accordance with section 76.

(2) An authorised medical officer of the mental health facility in which an assessable person is detained—

(a) must ensure that, as far as practicable, the person is brought before the Tribunal dressed in street clothes, and

(b) must make all necessary arrangements to ensure that all appropriate medical witnesses appear before the Tribunal and other relevant medical evidence concerning the person is placed before the Tribunal at or before the inquiry, and

(c) as soon as practicable after notifying the Tribunal under section 27 (d), and at or before the inquiry, must provide the Tribunal with all relevant medical reports of the examinations in step 1 or step 2, as referred to in section 27 (d), and any additional information required by the Tribunal for the purposes of the inquiry.

An assessable person, or any other person, may, with the approval of the Tribunal and subject to the regulations (if any), be brought or appear before the Tribunal by way of audio visual link.

Any designated carer or the principal care provider of an assessable person may, with the approval of the Tribunal, appear at an inquiry.

Note.

The Tribunal must be constituted by at least one member who is the President or a Deputy President for the purposes of a mental health inquiry (see section 150 (2A)). Other provisions relating to the Tribunal’s procedures generally, that apply to mental health inquiries and other proceedings, are set out in Part 2 of Chapter 6.

s 34: Subst 2008 No 107, Sch 16 [6]. Am 2014 No 85, Sch 1 [20] [21].

Purpose and findings of mental health inquiries

35 Purpose and findings of mental health inquiries

(cf 1990 Act, ss 50–52)

(1) The Tribunal when holding a mental health inquiry is to determine whether or not, on the balance of probabilities, the assessable person is a mentally ill person.

(2) For that purpose, the Tribunal is to do the following—

(a) consider the reports and recommendations of the authorised medical officer and other medical practitioners who examined the person under section 27 after the person’s detention,

(b) consider any other information before the Tribunal,

(c) inquire about the administration of any medication to the person and take account of its effect on the person’s ability to communicate,

(d) have due regard to any cultural factors relating to the person that may be relevant to the determination,

(e) have due regard to any evidence given at the inquiry by an expert witness concerning the person’s cultural background and its relevance to any question of mental illness.

(2A) As soon as practicable after the beginning of a mental health inquiry, the Tribunal must ask the assessable person whether the person—

(a) has been given a written statement, in the prescribed form, of the person’s legal rights and other entitlements, as required by section 74, and

(b) has been informed of the duty imposed under section 76 on the authorised medical officer relating to the giving of the notice specified in that section.

(2B) As soon as practicable after the beginning of a mental health inquiry, the Tribunal must ascertain from the authorised medical officer whether the written statement and notice referred to in subsection (2A) have been given or all such things as are reasonably practicable have been done to give that statement or notice, as the case requires.

(3) If the Tribunal is not satisfied, on the balance of probabilities, that an assessable person is a mentally ill person, the Tribunal must order that the person be discharged from the mental health facility.

(4) The Tribunal may defer the operation of an order for the discharge of a person for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the person to do so.

(5) If the Tribunal is satisfied, on the balance of probabilities, that an assessable person is a mentally ill person, the Tribunal may make any of the following orders—

(a) an order that the person be discharged into the care of a designated carer or the principal care provider of the person,

(b) a community treatment order,

(c) an order that the person be detained in or admitted to and detained in a mental health facility for further observation or treatment, or both, as an involuntary patient, for a specified period of up to 3 months, if the Tribunal is of the opinion that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available or that for any other reason it is not appropriate to make any other order under this subsection.

s 35: Am 2008 No 79, Sch 2 [7]; 2008 No 107, Sch 16 [7]–[12]; 2014 No 85, Sch 1 [22]; 2022 No 41, Sch 6[3].

Adjournments

36 Adjournments

(1) The Tribunal may, from time to time, adjourn a mental health inquiry for a period not exceeding 14 days.

(2) Without limiting subsection (1), the Tribunal may adjourn the inquiry if it is not satisfied—

(a) that the assessable person has been informed of the duty imposed under section 76 on the authorised medical officer relating to the giving of the notice specified in that section, or

(b) that the notice specified in the section has been given or all such things as are reasonably practicable have been done to give that notice.

(3) The Tribunal may adjourn an inquiry under this section only if—

(a) the Tribunal is of the opinion that it is in the best interests of the assessable person to do so, and

(b) the Tribunal has considered any certificates given under this Act available to the Tribunal.

(4) If an inquiry is adjourned, the assessable person is to continue to be detained in the mental health facility unless the person is discharged or allowed to be absent from the facility under another provision of this Act.

s 36: Subst 2008 No 107, Sch 16 [13].

Reviews of involuntary patients by Tribunal

37 Reviews of involuntary patients by Tribunal

(1) The Tribunal must review the case of each involuntary patient as follows—

(a) at the end of the patient’s initial period of detention as a result of a mental health inquiry,

(b) at least once every 3 months for the first 12 months the person is an involuntary patient,

(c) at least once every 6 months while the person is an involuntary patient after the first 12 months of detention.

(1A) The Tribunal may review the case of an involuntary patient at such other times as it sees fit.

(2) An authorised medical officer must cause an involuntary patient to be brought before the Tribunal—

(a) as soon as practicable before the end of the initial period of detention, if it appears to the officer that the person should continue to be detained, and

(b) at such other times as may be required by the Tribunal for the purposes of any review under this section.

(3) The authorised medical officer must ensure that, as far as practicable, a person brought before the Tribunal is dressed in street clothes.

(3A) The Tribunal may review the case of an involuntary patient in the absence of the patient if—

(a) the authorised medical officer applies to have the review carried out in the absence of the patient because the patient has refused to attend the review or because the officer is of the opinion that the patient is too unwell to attend the review, and

(b) the Tribunal is satisfied that the patient has refused to attend or is too unwell to attend and is unlikely to be well enough to attend within a reasonable period, and

(c) the Tribunal is satisfied that any representative of the patient (being an Australian legal practitioner, or other person approved by the Tribunal, who is representing the patient for the purposes of the review) has been notified of the review, and

Note.

Section 154 contains provisions relating to the right to representation.

(d) the Tribunal has considered the views (if known) of each of the following—

(i) the patient,

(ii) any representative of the patient,

(iii) the designated carer of the patient,

(iv) the principal care provider of the patient, and

(e) the Tribunal is of the opinion that carrying out the review in the absence of the patient is desirable for the safety or welfare of the patient.

(4) Despite subsection (1) (c), the Tribunal may review the case of an involuntary patient at intervals of up to 12 months if it is of the opinion that it is appropriate to do so.

s 37: Am 2010 No 96, Sch 1 [1]; 2018 No 2, Sch 4 [1].

Purpose and findings of reviews of involuntary patients

38 Purpose and findings of reviews of involuntary patients

(1) The Tribunal is, on a review of an involuntary patient, to determine whether the patient is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available.

(2) For that purpose, the Tribunal is to do the following—

(a) consider any information before it,

(b) inquire about the administration of any medication to the patient and take account of its effect on the patient’s ability to communicate.

(3) If the Tribunal determines that the patient is not a mentally ill person, the patient must be discharged from the mental health facility in which the patient is detained.

(4) If the Tribunal determines that the patient is a mentally ill person and that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient, the Tribunal must make an order that the patient continue to be detained as an involuntary patient in a mental health facility for further observation or treatment, or both.

(5) In any other case that the Tribunal determines that a patient is a mentally ill person, it must make an order that the patient be discharged from the mental health facility in which the patient is detained and may make any of the following orders—

(a) an order that the patient be discharged into the care of a designated carer or the principal care provider of the person,

(b) a community treatment order.

(6) The Tribunal may defer the operation of an order for the discharge of a patient for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.

(7) An order made by the Tribunal under this section is to be in the form approved by the President.

s 38: Am 2008 No 79, Sch 2 [8]; 2014 No 85, Sch 1 [23].

Medical examination of involuntary patients

39 Medical examination of involuntary patients

(cf 1990 Act, s 61)

(1) An authorised medical officer must medically examine each involuntary patient of the mental health facility, or cause each involuntary patient to be medically examined, to determine whether the patient’s continued detention in the facility is necessary.

(2) The medical examinations are to be carried out at intervals of not more than 3 months.

Re-classification of involuntary patients as voluntary patients

40 Re-classification of involuntary patients as voluntary patients

(cf 1990 Act, s 64)

(1) An involuntary patient may be classified as a voluntary patient of the mental health facility in which the patient is detained—

(a) by an authorised medical officer at any time, or

(b) by the Tribunal when conducting a review of the patient.

(2) A patient may be so classified only if—

(a) the authorised medical officer or Tribunal is of the opinion that the patient is likely to benefit from care or treatment as a voluntary patient, and

(b) the patient agrees to be so classified or, if the patient is a person under guardianship, the patient is admitted in accordance with the procedures under this Act applicable to admitting such persons as voluntary patients.

(3) Without limiting subsection (1), a person who is discharged as an involuntary patient may be admitted as a voluntary patient immediately on discharge.

Note.

For additional circumstances when a patient or person must be released from a mental health facility, see section 12.

s 40: Am 2010 No 96, Sch 1 [2] [3].

Discharge on making of community treatment order

41 Discharge on making of community treatment order

(cf 1990 Act, s 132)

(1) An authorised medical officer must discharge a patient or person who is detained in a mental health facility when a community treatment order is made about the patient or person and any order authorising the patient’s or person’s detention ceases to have effect.

(2) This section does not prevent an affected person subject to a community treatment order from being admitted to or detained in a mental health facility.

(3) This section is subject to any order made under section 53 deferring the discharge of an involuntary patient.

s 41: Am 2014 No 85, Sch 1 [24].

Discharge of involuntary patients on own application

42 Discharge of involuntary patients on own application

(cf 1990 Act, s 67)

(1) An involuntary patient of a mental health facility or another person detained in a mental health facility may make an application to the authorised medical officer to be discharged.

(2) The authorised medical officer may discharge the patient or person.

Note.

The authorised medical officer may also classify a patient as a voluntary patient (see section 40).

Discharge of involuntary patients on application of designated carer or principal care provider

43 Discharge of involuntary patients on application of designated carer or principal care provider

(cf 1990 Act, s 68)

(1) Any designated carer or the principal care provider of an involuntary patient or another person detained in a mental health facility may, at any time, apply to an authorised medical officer of the mental health facility for the discharge of the patient or person.

(2) The authorised medical officer may discharge the patient or person if—

(a) the applicant gives the authorised medical officer a written undertaking that the patient or person will be properly taken care of, and

(b) the authorised medical officer is satisfied that adequate measures will, so far as is reasonably practicable, be taken to prevent the patient or person from causing harm to himself or herself or others.

s 43: Am 2014 No 85, Sch 1 [25].

43A

Tribunal to be informed of discharge of a forensic patient

43A Tribunal to be informed of discharge of a forensic patient

An authorised medical officer of a mental health facility must, as soon as is reasonably practicable, notify the Tribunal of the discharge of a person detained in the mental health facility whom the officer knows is a forensic patient.

s 43A: Ins 2013 No 24, Sch 5 [3].

Appeals against discharge refusals

44 Appeals against discharge refusals

(cf 1990 Act, ss 69, 70)

(1) An involuntary patient or person detained at a mental health facility (the applicant) who applies to be discharged, or a person who applies for the discharge of the applicant, or a person appointed by the applicant, may appeal to the Tribunal if—

(a) the authorised medical officer refuses the application, or

(b) the authorised medical officer fails to determine the application within 3 working days after it is made.

(2) An appeal may be made orally or in writing and is to be made in accordance with the regulations.

(3) The authorised medical officer must provide the Tribunal with a report about the applicant, including the officer’s reasons for refusing to discharge the applicant or failing to determine the application.

(4) For the purpose of determining an appeal, the Tribunal has and may exercise the functions of the authorised medical officer with respect to the discharge application and may make an order accordingly.

(5) In addition, the Tribunal may determine that no further right of appeal may be exercised under this section before the date on which the person is next reviewed by the Tribunal under this Act, if it thinks it appropriate to do so, having regard to the following—

(a) the interval between the last determination under this Act that the applicant was a mentally ill person and the date of the appeal,

(b) the frequency of appeals under this section made by or on behalf of the applicant,

(c) the last report about the applicant by the authorised medical officer under this section,

(d) any other matter the Tribunal considers relevant.

(6) The Tribunal may defer the operation of an order under this section for the discharge of a person for a period of up to 14 days, if the Tribunal decides it is in the best interests of the person to do so.

Note.

The Tribunal may, on application, make a community treatment order for an involuntary patient or detained person who is the subject of an appeal (see section 51).

s 44: Am 2014 No 85, Sch 1 [26].

Review and discharge of absent patients

45 Review and discharge of absent patients

(cf 1990 Act, ss 72, 73)

(1) An authorised medical officer must review the mental health and welfare of a patient or person detained in a mental health facility under this Act who is absent from the mental health facility with permission if the absence is for a continuous period of more than 28 days.

(2) The authorised medical officer must discharge the patient or person following the review unless the officer is of the opinion that further detention of the patient or person in the facility is necessary.

(3) An authorised medical officer of a mental health facility must discharge a patient or person detained in the facility under this Act who is absent from the mental health facility for a single period exceeding 12 months.

Division 4

Leave of absence from mental health facilities

Division 4 Leave of absence from mental health facilities

Application of Division

46 Application of Division

This Division applies to an involuntary patient or a person who is detained in a mental health facility under this Act.

s 46: Am 2008 No 79, Sch 2 [9].

Leave of absence on compassionate grounds, medical grounds or other grounds

47 Leave of absence on compassionate grounds, medical grounds or other grounds

(1) An authorised medical officer may permit a person to be absent from a mental health facility for the period, and on the conditions, that the officer thinks fit.

(2) Permission may be given on compassionate grounds, on the ground that medical treatment is required or on any other ground the authorised medical officer thinks fit.

Note.

A person may also be transferred from a mental health facility to another health facility on medical grounds (see section 80).

(3) An authorised medical officer may not grant leave of absence unless the officer is satisfied that, as far as is practicable, adequate measures have been taken to prevent the person concerned from causing harm to himself or herself or others.

Apprehension of persons not permitted to be absent from mental health facility

48 Apprehension of persons not permitted to be absent from mental health facility

(cf 1990 Act, ss 75, 76)

(1) An authorised medical officer of a mental health facility may apprehend a person, or direct a person to be apprehended, if—

(a) the person fails to return to the facility on or before the expiry of a permitted period of absence granted under this Part or fails to comply with a condition of the permission, or

(b) the person absents himself or herself from the facility otherwise than in accordance with this Act.

(2) The person may be apprehended by any of the following persons—

(a) an authorised medical officer or any other suitably qualified person employed at the mental health facility,

(b) a police officer,

(c) a person authorised by the Minister or the authorised medical officer,

(d) a person assisting a person referred to in paragraph (a), (b) or (c).

(3) A person who is apprehended is to be conveyed to and detained in the mental health facility from which the person absented himself or herself (whether directly or indirectly by way of another mental health facility).

s 48: Am 2018 No 2, Sch 4 [2].

Police assistance

49 Police assistance

(1) An authorised medical officer may request that a police officer apprehend, or assist in apprehending, a person under this Division if the officer is of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

(2) A police officer to whose notice any such request is brought may—

(a) apprehend and take or assist in taking the person to the mental health facility from which the person absented himself or herself, or

(b) cause or make arrangements for some other police officer to do so.

(3) A police officer may enter premises to apprehend a person under this section or section 48, and may apprehend any such person, without a warrant and may exercise any powers conferred under section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Note.

Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.

Part 3

Involuntary treatment in the community

Part 3 Involuntary treatment in the community

Definitions

50 Definitions

In this Part—

affected person means a person for whom a community treatment order has been applied for or made.

breach notice—see section 58 (3).

breach order—see section 58 (4).

director of community treatment of a mental health facility means a person appointed under section 113 as the director of community treatment of the mental health facility.

psychiatric case manager means a person employed at a declared mental health facility who is appointed under section 114 as the psychiatric case manager of an affected person.

treatment plan—see section 54.

Community treatment orders

51 Community treatment orders

(1) A community treatment order authorising the compulsory treatment in the community of a person may be made by the Tribunal.

Note.

Section 56 sets out the matters to be included in community treatment orders.

(2) The following persons may apply for a community treatment order for the treatment of a person—

(a) the authorised medical officer of a mental health facility in which the affected person is detained or is a patient under this Act,

(b) a medical practitioner who is familiar with the clinical history of the affected person,

(c) any other person prescribed by the regulations.

(3) An application may be made about a person who is detained in or a patient in a mental health facility or a person who is not in a mental health facility.

(4) An application may be made about a person who is subject to a current community treatment order.

(5) A community treatment order may be made in the following circumstances and may replace an existing order—

(a) following a mental health inquiry,

(b) on a review of a patient by the Tribunal,

(c) on an application otherwise being made to the Tribunal.

(6) Without limiting subsection (5) (c), an application for a community treatment order may be made, and determined by the Tribunal, in the same proceedings as an appeal under section 44.

s 51: Am 2008 No 107, Sch 16 [14]; 2014 No 85, Sch 1 [27].

Notice of applications

52 Notice of applications

(1) The applicant for a community treatment order must notify the affected person in writing of the application.

(2) The notice of the application is to include a copy of the proposed treatment plan for the affected person.

(3) If the affected person is not detained in a mental health facility, the application must be heard not earlier than 14 days after the notice is given to the affected person.

(4) Subsection (3) does not apply—

(a) to an application for a further community treatment order in respect of an affected person who was the subject of a current community treatment order when the notice was given, or

(b) if the Tribunal decides it is in the best interests of the affected person that the application be heard earlier than 14 days after the notice is given.

(5) As soon as practicable after becoming aware of the application, the director of community treatment of the declared mental health facility at which the treatment plan is proposed to be implemented must take all reasonably practicable steps to give written notice of the application to—

(a) each designated carer of the affected person, and

(b) the principal care provider of the affected person, if the principal care provider is not a designated carer.

s 52: Am 2008 No 79, Sch 2 [10]; 2009 No 15, Sch 1.6 [1]; 2014 No 85, Sch 1 [28]; 2024 No 22, Sch 6[1] [2].

Determination of applications for community treatment orders

53 Determination of applications for community treatment orders

(1) The Tribunal is, on an application for a community treatment order, to determine whether the affected person is a person who should be subject to the order.

(2) For that purpose, the Tribunal is to consider the following—

(a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order,

(b) if the affected person is subject to an existing community treatment order, a report by the psychiatric case manager of the person as to the efficacy of that order,

(c) a report as to the efficacy of any previous community treatment order for the affected person,

(d) any other information placed before the Tribunal.

(3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that—

(a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and

(b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and

(c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment.

(3A) If the affected person has within the last 12 months been a forensic patient or the subject of a community treatment order, the Tribunal is not required to make a determination under subsection (3) (c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted.

(4) The Tribunal may not make a community treatment order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person.

(5) For the purposes of this section, a person has a previous history of refusing to accept appropriate treatment if the following are satisfied—

(a) the affected person has previously refused to accept appropriate treatment,

(b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness,

(c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission),

(d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person.

(6) The Tribunal must not specify a period longer than 12 months as the period for which a community treatment order is in force.

(7) In determining the duration of a community treatment order, the Tribunal must take into account the estimated time required—

(a) to stabilise the condition of the affected person, and

(b) to establish, or re-establish, a therapeutic relationship between the person and the person’s psychiatric case manager.

(8) The Tribunal may order that the discharge of an involuntary patient for whom a community treatment order is made be deferred for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.

s 53: Am 2008 No 79, Sch 2 [11] [12] (am 2008 No 107, Sch 18); 2008 No 107, Sch 16 [15]–[18]; 2010 No 96, Sch 1 [4]; 2014 No 85, Sch 1 [29].

Requirements for treatment plans under community treatment orders

54 Requirements for treatment plans under community treatment orders

A treatment plan for an affected person is to consist of the following—

(a) in general terms, an outline of the proposed treatment, counselling, management, rehabilitation or other services to be provided to implement the community treatment order,

(b) in specific terms, the method by which, the frequency with which, and the place at which, the services would be provided for that purpose.

Community treatment order may be made in absence of affected person

55 Community treatment order may be made in absence of affected person

The Tribunal may make a community treatment order in the absence of the affected person, if the person has been given notice of the application under this Part.

s 55: Am 2008 No 107, Sch 16 [19].

Form and duration of community treatment orders

56 Form and duration of community treatment orders

(1) A community treatment order is to—

(a) nominate the declared mental health facility that is to implement the treatment plan for the affected person, and

(b) require the affected person to be present, at the reasonable times and places specified in the order to receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan.

(2) A community treatment order ceases to have effect at the end of the period specified in the order or, if no period is specified, 12 months after the order is made.

Note.

Section 53 (6) specifies that the maximum period for an order is to be 12 months.

(3) A community treatment order has no effect while an affected person is detained in a mental health facility (otherwise than under this Part), or is a voluntary patient.

(4) The fact that an affected person is the subject of proceedings before the Tribunal does not, unless the Tribunal otherwise orders, affect the operation or duration of the community treatment order.

(5) The time for which a community treatment order is in force does not cease to run during any period in which this section provides that it has no effect.

Note.

The Tribunal may vary or revoke a community treatment order in accordance with section 65.

Duties and functions of affected person and mental health facility

57 Duties and functions of affected person and mental health facility

(cf 1990 Act, ss 145, 146)

(1) The affected person must comply with the community treatment order.

(2) The director of community treatment of the declared mental health facility implementing a treatment plan under a community treatment order may take all reasonable steps to have medication administered, and services provided, in accordance with the order.

(3) Medication may be administered to an affected person for the purposes of a community treatment order without the person’s consent if it is administered without the use of more force than would be required if the person had consented to its administration.

(4) The director of community treatment of a declared mental health facility implementing a treatment plan under a community treatment order must provide to the affected person particulars of the kind and dosages of medication that are being administered, or have recently been administered, to the person, if requested to do so by—

(a) the affected person, or

(b) any designated carer or the principal care provider of the affected person, or

(c) if the affected person consents, another person who would be entitled to apply for a community treatment order in relation to the person.

(5) A person implementing a treatment plan under a community treatment order may enter the land (but not the dwelling) on which an affected person’s residence is situated without the person’s consent for the purpose of implementing the community treatment order.

s 57: Am 2014 No 85, Sch 1 [30].

Breach of community treatment order

58 Breach of community treatment order

(1) The director of community treatment of a declared mental health facility implementing a community treatment order must take the steps set out in this section if the affected person in any way refuses or fails to comply with the community treatment order and the director is of the opinion that—

(a) the mental health facility has taken all reasonable steps to implement the order, and

(b) there is a significant risk of deterioration in the mental or physical condition of the affected person.

(2) The director must—

(a) make a written record of the opinions, the facts on which they are based and the reasons for forming them, and

(b) cause the affected person to be informed that any further refusal to comply with the order will result in the person being taken to the declared mental health facility or another appropriate mental health facility and treated there, and

(c) take all reasonably practicable steps to notify the following persons of the action taken under paragraphs (a) and (b)—

(i) each designated carer of the affected person,

(ii) the principal care provider of the affected person, if the principal care provider is not a designated carer.

(3) On a further refusal or failure by the affected person to comply with the community treatment order, the director may cause the person to be given a written notice (a breach notice)—

(a) requiring the person to accompany a member of staff of the NSW Health Service employed at the declared mental health facility for treatment in accordance with the order or to a specified mental health facility, and

(b) warning the person that the assistance of a police officer may be obtained in order to ensure compliance with the order.

(4) On the refusal or failure by the affected person to comply with a breach notice, the director may, in writing, make an order (a breach order) that the affected person be taken to a specified declared mental health facility.

(5) For the purposes of subsection (3), the director causes a person to be given a breach notice if the director ensures that—

(a) the notice is handed directly to the person, or

(b) if it is not reasonably practicable to hand the notice directly to the person, the notice is given to the person in a way specified in section 192(1)(a)(ii), (iv) or (v).

(6) The director must take all reasonably practicable steps to give a copy of a breach notice and a breach order to—

(a) each designated carer of the affected person, and

(b) the principal care provider of the affected person, if the principal care provider is not a designated carer.

s 58: Am 2010 No 96, Sch 1 [5]; 2024 No 22, Sch 6[3]–[5].

Police assistance

59 Police assistance

(1) A police officer to whose notice a breach order is brought must, if practicable—

(a) apprehend and take or assist in taking the person the subject of the order to the mental health facility, or

(b) cause or make arrangements for some other police officer to do so.

(2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Note.

Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so.

Procedures at facility after breach notice or breach order

60 Procedures at facility after breach notice or breach order

(1) An affected person who is at a mental health facility as a result of the giving of a breach notice or a breach order—

(a) may be given treatment in accordance with the community treatment order, and

(b) may be assessed by a medical practitioner for involuntary admission to a mental health facility.

(2) A person who is at a mental health facility as a result of a breach notice or breach order may be released after treatment if treatment is accepted or may be dealt with at the mental health facility or taken to another declared mental health facility if treatment is refused.

Review of affected person at mental health facility after breach order

61 Review of affected person at mental health facility after breach order

(cf 1990 Act, ss 141, 142)

(1) This section applies to an affected person who is taken to or is at a declared mental health facility after refusing treatment at a mental health facility consequent on a breach order.

(2) An authorised medical officer must, not later than 12 hours after the person is taken to the declared mental health facility, review the affected person’s mental condition and determine whether the person is a mentally ill person or a mentally disordered person.

(3) The authorised medical officer may cause the person to be given treatment in accordance with the community treatment order.

(4) If the authorised medical officer determines that the affected person is a mentally ill person or a mentally disordered person for whom no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available, the person is to be detained in the declared mental health facility for further observation or treatment, or both.

(5) The affected person may be detained until one of the following events occurs—

(a) in the case of a mentally ill person, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act,

(b) in the case of a mentally disordered person, the maximum period for which a person may be held as such a person under Part 2 ends, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act.

s 61: Am 2008 No 79, Sch 2 [13].

61A

Medical examination of detained affected persons

61A Medical examination of detained affected persons

(1) An authorised medical officer must medically examine each affected person detained in a mental health facility to determine whether the person’s continued detention in the facility is necessary.

(2) The medical examinations are to be carried out at intervals of not more than 3 months.

s 61A: Ins 2008 No 79, Sch 2 [14].

Discharge and detention of affected persons

62 Discharge and detention of affected persons

(1) An affected person detained in a declared mental health facility under this Division must be discharged from the facility—

(a) if the authorised medical officer determines that the person is not a mentally ill person or a mentally disordered person or is of the opinion that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person, or

(b) if the authorised medical officer decides at any time that it is appropriate to do so.

(2) An authorised medical officer may do all necessary things to cause a person to be detained in a mental health facility under Part 2 at the end of the term of a community treatment order if the officer considers the person to be a mentally ill person.

(3) Any such person is taken to be detained in the mental health facility under section 19 when the authorised medical officer takes action to detain the person.

s 62: Am 2008 No 79, Sch 2 [15].

Review of detained affected persons by Tribunal

63 Review of detained affected persons by Tribunal

(cf 1990 Act, s 143A)

(1) An authorised medical officer must cause a person detained in a declared mental health facility under this Division to be brought before the Tribunal not later than 3 months after the person is detained, and at least every 3 months while the person is detained.

(2) The authorised medical officer must ensure that, as far as practicable, a person brought before the Tribunal is dressed in street clothes.

(2A) The Tribunal may review the case of the affected person in the absence of the affected person if—

(a) the authorised medical officer applies to have the review carried out in the absence of the affected person because the affected person has refused to attend the review or because the officer is of the opinion that the affected person is too unwell to attend the review, and

(b) the Tribunal is satisfied that the affected person has refused to attend or is too unwell to attend and is unlikely to be well enough to attend within a reasonable period, and

(c) the Tribunal is satisfied that any representative of the affected person (being an Australian legal practitioner, or other person approved by the Tribunal, who is representing the affected person for the purposes of the review) has been notified of the review, and

Note.

Section 154 contains provisions relating to the right to representation.

(d) the Tribunal has considered the views (if known) of each of the following—

(i) the affected person,

(ii) any representative of the affected person,

(iii) the designated carer of the affected person,

(iv) the principal care provider of the affected person, and

(e) The Tribunal is of the opinion that carrying out the review in the absence of the affected person is desirable for the safety or welfare of the affected person.

(3) This section does not apply if the affected person’s community treatment order will end less than 3 months after the person is detained under this Division.

s 63: Am 2008 No 79, Sch 2 [16]; 2018 No 2, Sch 4 [3].

Purpose and findings of reviews

64 Purpose and findings of reviews

(cf 1990 Act, s 143A)

(1) The Tribunal is, on a review of an affected person, to determine whether the person is a mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available.

(2) For that purpose, the Tribunal is to do the following—

(a) consider any information before it,

(b) inquire about the administration of any medication to the person and take account of its effect on the person’s ability to communicate.

(3) If the Tribunal determines that the affected person is a mentally ill person or a mentally disordered person for whom no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available, the Tribunal must determine whether the person should be detained in the declared mental health facility until the end of the community treatment order or should be detained in the facility as an involuntary patient.

(4) If the Tribunal does not determine that the person is a mentally ill person or is of the opinion that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available—

(a) it must make an order that the person be discharged from the declared mental health facility in which the person is detained, and

(b) it may make any community treatment order that it could make on a review of an involuntary patient.

(5) The Tribunal may defer the operation of an order for the discharge of an affected person for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the affected person to do so.

(6) An order made by the Tribunal under this section is to be in the form approved by the President.

s 64: Am 2008 No 79, Sch 2 [17] [18].

Variation or revocation of orders by Tribunal

65 Variation or revocation of orders by Tribunal

(cf 1990 Act, s 148)

(1) The Tribunal may vary or revoke a community treatment order, on application being made under this section or at any time on its own motion.

(2) An application may be made by any of the following—

(a) the affected person,

(b) the psychiatric case manager of the affected person,

(c) any person who could have applied for the order.

(3) An application may be made only if—

(a) there has been a substantial or material change in the circumstances surrounding the making of the order, or

(b) relevant information that was not available when the order was made has become available.

(4) An order may be varied only if the order, as varied, could be made in relation to the affected person.

(5) The regulations may make provision for or with respect to applications under this section and the orders that may be made by the Tribunal.

s 65: Am 2008 No 79, Sch 2 [19].

Revocation by director of community treatment

66 Revocation by director of community treatment

(cf 1990 Act, s 149)

(1) The director of community treatment of a declared mental health facility implementing a treatment plan under a community treatment order may revoke a community treatment order if of the opinion that the affected person is not likely to benefit from a continuation of the order.

(2) Before revoking a community treatment order, the director must consult the affected person and, if it is reasonably practicable to do so, any designated carer and the principal care provider of the affected person (if the principal care provider is not a designated carer).

(3) The director must notify the Tribunal in writing if the director revokes a community treatment order or decides not to apply to the Tribunal for a further order.

s 66: Am 2014 No 85, Sch 1 [31].

66A

Notifications

66A Notifications

The director of community treatment of the declared mental health facility implementing a community treatment order must take all reasonably practicable steps to notify any designated carer and the principal care provider of the affected person (if the principal care provider is not a designated carer) of the order and if any of the following events occur—

(a) the order is varied or revoked by the Tribunal or director,

(b) an application is made for a further order or the director decides not to apply for a further order.

s 66A: Ins 2014 No 85, Sch 1 [32].

Appeals

67 Appeals

(cf 1990 Act, s 151)

(1) The affected person under a community treatment order made by the Tribunal may at any time appeal to the Court—

(a) if the term of the order exceeds 6 months or no term is specified in the order, against the duration of the order, or

(b) on any question of law or fact arising from the order or its making.

(2) The affected person under a community treatment order made by a Judge of the Local Court may at any time appeal to the Tribunal—

(a) if the term of the order exceeds 6 months or no term is specified in the order, against the duration of the order, or

(b) on any question of law or fact arising from the order or its making.

(3) The regulations may make provision for or with respect to appeals to the Tribunal under this section and the orders that may be made by the Tribunal in respect of any such appeal.

s 67: Am 2025 No 61, Sch 2.63[1].

Principles for care and treatment

68 Principles for care and treatment

It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder—

(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,

(b) people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards,

(c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community,

(d) the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others,

(e) people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment and be supported to pursue their own recovery,

(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,

(g) any special needs of people with a mental illness or mental disorder should be recognised, including needs related to age, gender, religion, culture, language, disability or sexuality,

(g1) people under the age of 18 years with a mental illness or mental disorder should receive developmentally appropriate services,

(g2) the cultural and spiritual beliefs and practices of people with a mental illness or mental disorder who are Aboriginal persons or Torres Strait Islanders should be recognised,

(h) every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and recovery plans and to consider their views and expressed wishes in that development,

(h1) every effort that is reasonably practicable should be made to obtain the consent of people with a mental illness or mental disorder when developing treatment plans and recovery plans for their care, to monitor their capacity to consent and to support people who lack that capacity to understand treatment plans and recovery plans,

(i) people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand,

(j) the role of carers for people with a mental illness or mental disorder and their rights under this Act to be kept informed, to be involved and to have information provided by them considered, should be given effect.

s 68: Am 2014 No 85, Sch 1 [34]–[38].

Offence to ill-treat patients

69 Offence to ill-treat patients

(cf 1990 Act, s 298)

An authorised medical officer, or any other person employed at a mental health facility, must not wilfully strike, wound, ill-treat or neglect a patient or person detained at the facility under this or any other Act.

Maximum penalty—50 penalty units or imprisonment for 6 months, or both.

s 69: Am 2008 No 79, Sch 2 [20].

69A

Prohibition on use of spit hoods

69A Prohibition on use of spit hoods

(1) An authorised medical officer, or another person, exercising functions under this Act must not use a spit hood in the exercise of the functions.

Note—

A contravention of this subsection may constitute an unauthorised or unreasonable use of force.

(2) Subsection (1)—

(a) applies despite any other provision of this Act or another Act or law, and

(b) does not limit section 69.

(3) In this section—

spit hood—

(a) means a covering, however described, intended to be placed over a person’s head to prevent the person from spitting on, or biting, another person, but

(b) does not include a helmet designed to prevent self-harm, even if the helmet incorporates a part designed to stop spittle.

s 69A: Ins 2024 No 5, Sch 5.

Assistance of interpreters

70 Assistance of interpreters

(cf 1990 Act, s 292)

A medical practitioner must arrange for an interpreter to be present at a medical examination of a person for the purposes of this Act, if the person is unable to communicate adequately in English but can communicate adequately in another language.

Designated carers

71 Designated carers

(1) The designated carer of a person (the patient) for the purposes of this Act is—

(a) the guardian of the patient, or

(b) the parent of a patient who is a child (subject to any nomination by a patient referred to in paragraph (c)), or

(c) if the patient is over the age of 14 years and is not a person under guardianship, a person nominated by the patient as a designated carer under this Part under a nomination that is in force, or

(d) if the patient is not a patient referred to in paragraph (a) or (b) or there is no nomination in force as referred to in paragraph (c)—

(i) the spouse of the patient, if any, if the relationship between the patient and the spouse is close and continuing, or

(ii) any individual who is primarily responsible for providing support or care to the patient (other than wholly or substantially on a commercial basis), or

(iii) a close friend or relative of the patient.

(2) In this section—

close friend or relative of a patient means a friend or relative of the patient who maintains both a close personal relationship with the patient through frequent personal contact and a personal interest in the patient’s welfare and who does not provide support to the patient wholly or substantially on a commercial basis.

relative of a patient who is an Aboriginal person or a Torres Strait Islander includes a person who is part of the extended family or kin of the patient according to the indigenous kinship system of the patient’s culture.

s 71: Am 2014 No 85, Sch 1 [39]–[42].

Nomination of designated carers

72 Nomination of designated carers

(1) A person may nominate up to 2 persons to be the person’s designated carers for the purposes of this Act.

(2) A person may nominate persons who are excluded from being given notice or information about the person under this Act and may revoke or vary any such nomination.

(3) A person who is over the age of 14 years and under the age of 18 years may not exclude the person’s parent by a nomination under subsection (2).

(4) A nomination, variation or revocation is to be made in writing and may be given to an authorised medical officer at a mental health facility or a director of community treatment.

(5) A nomination remains in force for the period prescribed by the regulations or until it is revoked in writing.

(6) An authorised medical officer or a director of community treatment is, in carrying out his or her functions under this Act or the regulations, to give effect to a nomination or a variation or revocation of a nomination, if notified of the nomination, variation or revocation.

(7) An authorised medical officer or a director of community treatment is not required to give effect to a nomination, or a variation or revocation of a nomination, if the officer or director reasonably believes—

(a) that to do so may put the patient or nominated person or any other person at risk of serious harm, or

(b) that the person who made the nomination, variation or revocation was incapable of making the nomination, variation or revocation.

s 72: Am 2014 No 85, Sch 1 [43].

72A

Principal care providers

72A Principal care providers

(1) The principal care provider of a person for the purposes of this Act is the individual who is primarily responsible for providing support or care to the person (other than wholly or substantially on a commercial basis).

(2) An authorised medical officer at a mental health facility or a director of community treatment may, for the purposes of complying with a provision of this Act or the regulations, determine who is the principal care provider of a person.

(3) The authorised medical officer or the director of community treatment must not determine that a person is the principal care provider of another person if the person is excluded from being given notice or information about the other person under this Act.

(4) An authorised medical officer or a director of community treatment is not required to give effect to a requirement relating to a principal care provider of a person under this Act or the regulations if the officer or director reasonably believes that to do so may put the person or the principal care provider at risk of serious harm.

(5) A principal care provider of a person may also be a designated carer of the person.

s 72A: Ins 2014 No 85, Sch 1 [44] (am 2015 No 15, Sch 1.18 [1]).

72B

Requirement to consider information provided by other persons about patients or detained persons when making detention or discharge decisions

72B Requirement to consider information provided by other persons about patients or detained persons when making detention or discharge decisions

An authorised medical officer or other medical practitioner or accredited person who examines an involuntary patient or person detained in a mental health facility for the purposes of determining whether the person is a mentally ill person or a mentally disordered person or whether to discharge the patient or person is to consider any information provided by the following persons, if it is reasonably practicable to do so—

(a) any designated carer, principal care provider, relative or friend of the patient or person,

(b) any medical practitioner or other health professional who has treated the patient or person in relation to a relevant matter,

(c) any person who brought the patient or person to the mental health facility.

s 72B: Ins 2014 No 85, Sch 1 [44] (am 2015 No 15, Sch 1.18 [1]).

Information about medication

73 Information about medication

(1) On a request made under this section, an authorised medical officer of a mental health facility must provide particulars of the types of medication and dosages of each type of medication currently being administered or recently administered to a patient or person detained in the facility.

(2) A request may be made by—

(a) the patient or person detained in the mental health facility, or

(b) any designated carer or the principal care provider of any such patient or person, or

(c) a representative of any such patient or person at a mental health inquiry or before the Tribunal.

s 73: Am 2014 No 85, Sch 1 [45].

Information to be given to persons to be detained

74 Information to be given to persons to be detained

(1) An authorised medical officer of a mental health facility must give the following persons an oral explanation and a written statement of their legal rights and other entitlements under this Act—

(a) a person who is taken to the facility under Part 2 of Chapter 3,

(b) a person who is a voluntary patient in the facility, if it is decided to take steps to detain the person under Part 2 of Chapter 3,

(c) an affected person who is detained in the facility after a breach notice or breach order relating to a community treatment order, if it is decided to take steps to detain the person under Part 2 of Chapter 3.

(2) The explanation and statement must be given as soon as practicable after the person is taken to a mental health facility or it is decided to take steps to detain the person.

(3) The written statement is to be in the form set out in Schedule 3.

(4) If the authorised medical officer is of the opinion that a person is not capable of understanding the explanation or statement when it is first given, another explanation or statement must be given to the person not later than 24 hours before a mental health inquiry is held about the person.

(5) The authorised medical officer must, if the person is unable to communicate adequately in English but is able to communicate adequately in another language, arrange for the oral explanation to be given in that other language.

74A

Information to be given to voluntary patients

74A Information to be given to voluntary patients

(1) An authorised medical officer of a mental health facility must give a person who becomes a voluntary patient of the facility an oral explanation and a written statement of the person’s legal rights and other entitlements under this Act.

(2) The explanation and statement must be given as soon as practicable after the person becomes a voluntary patient of the mental health facility, whether or not the patient was a patient or detained in the facility immediately before becoming a voluntary patient.

(3) The written statement is to be in the form set out in Schedule 3A.

(4) If the authorised medical officer is of the opinion that the person is not capable of understanding the explanation or statement when it is first given, another explanation or statement must be given to the person if the person becomes capable of understanding the explanation or statement.

(5) The authorised medical officer must, if the person is unable to communicate adequately in English but is able to communicate adequately in another language, arrange for the oral explanation to be given in that other language.

s 74A: Ins 2014 No 85, Sch 1 [46].

Notification to carers of initial detention

75 Notification to carers of initial detention

(1) An authorised medical officer must, not later than 24 hours after a person is detained in a mental health facility, take all reasonably practicable steps to notify any designated carer and the principal care provider (if the principal care provider is not a designated carer) of the person that the person is detained in the facility.

(2) Notice need not be given if the person is discharged or classified as a voluntary patient within that period.

s 75: Am 2014 No 85, Sch 1 [47].

Notification of mental health inquiries

76 Notification of mental health inquiries

(1) An authorised medical officer must notify an assessable person detained in the mental health facility that—

(a) a mental health inquiry will be held about the person, and

(b) all reasonably practicable steps will be taken to give notice of the inquiry to any designated carer and the principal care provider of the person (if the principal care provider is not a designated carer).

(2) The notice is to be given when the authorised medical officer becomes aware that the person is an assessable person.

(3) The authorised medical officer must, in accordance with the regulations, take all reasonably practicable steps to give notice to any designated carer and the principal care provider (if the principal care provider is not a designated carer) of an assessable person of a proposed mental health inquiry.

s 76: Am 2014 No 85, Sch 1 [48] [49].

Notification to new involuntary patients of appeal rights

77 Notification to new involuntary patients of appeal rights

(cf 1990 Act, s 55)

(1) An authorised medical officer of a mental health facility must give, or cause to be given, to a person ordered by the Tribunal after a mental health inquiry to be detained in the facility as an involuntary patient a statement of the rights of appeal conferred on the person as an involuntary patient under this Act.

(1A) An authorised medical officer of a mental health facility must give, or cause to be given, to a person detained in the facility on the order of the Tribunal after a breach of a community treatment order a statement of the rights of appeal conferred on the person under this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

(2) The statement must be given as soon as practicable after the order is made.

(3) The statement is to be in the form approved by the Minister.

s 77: Am 2008 No 79, Sch 2 [21]; 2008 No 107, Sch 16 [20]; 2020 No 12, Sch 3.17[7].

Notifications to designated carers and principal care providers of events affecting patients or detained persons

78 Notifications to designated carers and principal care providers of events affecting patients or detained persons

(1) An authorised medical officer of a mental health facility must take all reasonably practicable steps to notify any designated carer and the principal care provider (if the principal care provider is not a designated carer) of a patient or person detained in the facility if any of the following events occurs—

(a) the patient or person is absent from the facility without permission or fails to return at the end of a period of leave,

(b) it is proposed to transfer the patient or person, or the patient or person is transferred, to another mental health facility or other facility,

(c) the patient or person is discharged from the mental health facility,

(d) the patient or person is re-classified as a voluntary patient,

(e) it is proposed to apply to the Tribunal for an ECT inquiry under Part 2 or to ascertain whether the patient or person is capable of giving informed consent to electro convulsive therapy,

(f) a surgical operation is performed on the patient or person under Part 3,

(g) it is proposed to apply to the Secretary or the Tribunal for consent to a surgical operation or special medical treatment under Part 3,

(h) the patient or person has any matter before the Tribunal.

(2) The authorised medical officer must give the notice as soon as practicable after becoming aware that the event has occurred.

(3) In the case of a proposed transfer, the notice must be given before the relevant order or arrangement is made, except in an emergency.

s 78: Am 2014 No 85, Sch 1 [50]; 2018 No 2, Sch 4 [4].

Discharge and other planning

79 Discharge and other planning

(1) An authorised medical officer of a mental health facility must take all reasonably practicable steps to ensure that a patient or person detained in the facility, and any designated carer and the principal care provider (if the principal care provider is not a designated carer) of the patient or person, are consulted in relation to planning the patient’s or person’s discharge and any subsequent treatment or other action considered in relation to the patient or person.

(2) In planning the discharge of any such patient or person, and any subsequent treatment or other action considered in relation to the patient or person, the authorised medical officer must take all reasonably practicable steps to consult with agencies involved in providing relevant services to the patient or person, any designated carer and the principal care provider (if the principal care provider is not a designated carer) of the patient or person and any dependent children or other dependants of the patient or person.

(3) An authorised medical officer of a mental health facility must take all reasonably practicable steps to provide any such patient or person who is discharged from the facility, and any designated carer and the principal care provider (if the principal care provider is not a designated carer) of the patient or person, with appropriate information as to follow-up care.

s 79: Am 2014 No 85, Sch 1 [51]–[53].

Transfer of patients to or from mental health facilities

80 Transfer of patients to or from mental health facilities

(cf 1990 Act, s 78)

(1) An involuntary patient or a person detained in a mental health facility may be transferred from the mental health facility to another mental health facility or another health facility.

(2) A person who is a patient in a health facility other than a mental health facility may be transferred from the health facility to a declared mental health facility for the purpose of detaining the person under Part 2 of Chapter 3.

Note.

Section 25 sets out the procedure for detaining such a person in a declared mental health facility.

(3) A transfer of a patient or person to a health facility other than a mental health facility may be made on the grounds that the patient or person requires medical treatment for a condition or illness (other than a mental illness or other mental condition).

(4) A transfer under this section is to be done in accordance with an arrangement between medical officers of each facility or an order in writing by the Secretary.

(5) An arrangement under this section is sufficient authority for the transfer of a patient or person, and the reception into, the mental health facility or other health facility to which the patient or person is transferred.

Transport of persons to and from mental health facilities and other health facilities

81 Transport of persons to and from mental health facilities and other health facilities

(1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility—

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

(2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may—

(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and

(b) restrain the person in any way that is reasonably necessary in the circumstances.

(3) A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

Note.

The Poisons and Therapeutic Goods Act 1966, and the regulations under that Act, regulate the persons who may prescribe and administer drugs (including sedative drugs).

(4) A person authorised by this Act to take a person to or from a mental health facility or other health facility may carry out a frisk search or an ordinary search of the person, if the person reasonably suspects that the other person is carrying anything—

(a) that would present a danger to the person or any other person, or

(b) that could be used to assist the other person to escape from the person’s custody.

(5) The person may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (4) (a) or (b).

(6) In this section—

frisk search means—

(a) a search of a person conducted by quickly running the hands over the person’s outer clothing or by passing an electronic metal detection device over or in close proximity to the person’s outer clothing, or

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to that thing.

ordinary search means a search of a person or of articles in the possession of the person that may include—

(a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and

(b) an examination of those items.

Definitions

82 Definitions

In this Part—

administer a treatment includes cause or knowingly permit treatment to be administered.

involuntary patient includes a forensic patient, correctional patient and a person detained in a mental health facility.

s 82: Am 2008 No 79, Sch 2 [22].

Prohibited treatments

83 Prohibited treatments

(cf 1990 Act, s 197)

(1) A person must not administer to or perform on another person any of the following—

(a) deep sleep therapy,

(b) insulin coma therapy,

(c) psychosurgery,

(d) any other operation or treatment prescribed by the regulations for the purposes of this section.

Maximum penalty—50 penalty units.

(2) In this section—

psychosurgery means—

(a) the creation of 1 or more lesions, whether made on the same or separate occasions, in the brain of a person by any surgical technique or procedure, when it is done primarily for the purpose of altering the thoughts, emotions or behaviour of the person, or

(b) the use for such a purpose of electrodes within the brain to produce such a lesion or lesions, whether on the same or separate occasions, or

(c) the use on 1 or more occasions of electrodes within the brain primarily for the purpose of influencing or altering the thoughts, emotions or behaviour of a person by stimulation through the electrodes without the production of a lesion in the brain of the person,

but does not include a technique or procedure carried out for the treatment of a condition or an illness prescribed by the regulations for the purposes of this definition.

s 83: Am 2014 No 85, Sch 1 [54].

Treatment may be given to patients

84 Treatment may be given to patients

An authorised medical officer of a mental health facility may, subject to this Act and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, give, or authorise the giving of, any treatment (including any medication) the officer thinks fit to an involuntary patient or assessable person detained in the facility in accordance with this Act or that Act.

s 84: Am 2008 No 79, Sch 2 [23] [24]; 2020 No 12, Sch 3.17[8].

Administration of excessive or inappropriate drugs

85 Administration of excessive or inappropriate drugs

(cf 1990 Act, s 198)

A medical practitioner must not, in relation to any mental illness or mental condition or suspected mental illness or mental condition, administer, or cause to be administered to a person a drug or drugs in a dosage that, having regard to professional standards, is excessive or inappropriate.

Maximum penalty—50 penalty units.

Review of drug use in mental health facilities

86 Review of drug use in mental health facilities

(cf 1990 Act, s 199)

(1) The medical superintendent of a mental health facility must establish an internal review system to monitor and review the prescription and use of drugs in the facility.

(2) The director of community treatment of a mental health facility must establish an internal review system to monitor and review the prescription and use of drugs under community treatment orders implemented by the facility.

(3) The system is to monitor the frequency of administration and dosages of drugs, the intended and unintended effects of any drugs administered and the appropriateness of their use.

Definitions

87 Definitions

In this Division—

ECT administration inquiry—see section 96 (2).

ECT consent inquiry—see section 96 (1).

ECT determination—see section 96 (3).

ECT inquiry means an ECT administration inquiry or an ECT consent inquiry.

Offences relating to administration of electro convulsive treatment

88 Offences relating to administration of electro convulsive treatment

(cf 1990 Act, ss 180–182)

(1) A person who is not a medical practitioner must not administer electro convulsive therapy to another person.

(2) A medical practitioner must not administer electro convulsive therapy to a person—

(a) otherwise than in accordance with this Division, or

(b) at a place other than a mental health facility or other place approved by the Secretary.

(3) A medical practitioner must not administer electro convulsive therapy to a person unless there are present during the administration of the electro convulsive therapy not less than 2 medical practitioners (of whom the medical practitioner administering the electro convulsive therapy may be one)—

(a) one of whom is experienced in the administration of electro convulsive therapy, and

(b) another of whom is experienced in the administration of anaesthesia.

Maximum penalty—50 penalty units.

When electro convulsive therapy may be administered

89 When electro convulsive therapy may be administered

Electro convulsive therapy may be administered only in the following circumstances—

(a) to a person other than an involuntary patient or a person who is under the age of 16 years, if the person meets the requirements for informed consent to the treatment and medical certification set out in this Division,

(b) to an involuntary patient or a person who is under the age of 16 years, after an ECT determination by the Tribunal at an ECT inquiry.

Note.

In this Part, involuntary patient includes a forensic patient, correctional patient and a person detained in a mental health facility (see section 82).

s 89: Am 2008 No 79, Sch 2 [25]; 2014 No 85, Sch 1 [55].

Refusal of treatment by medical superintendent

90 Refusal of treatment by medical superintendent

The medical superintendent of a mental health facility may refuse to allow electro convulsive therapy to be administered to a patient or person detained in the facility, even though the Tribunal has made a determination under this Division that enables the treatment to be given.

Informed consent requirements

91 Informed consent requirements

(cf 1990 Act, s 183)

(1) A person is taken to have given informed consent to the administration of electro convulsive therapy if the person gives a free, voluntary and written consent after this section is complied with.

(2) The following steps must be taken before consent is obtained—

(a) a fair explanation must be made to the person of the techniques or procedures to be followed, including an identification and explanation of any technique or procedure about which there is not sufficient data to recommend it as recognised treatment or to reliably predict the outcome of its performance,

(b) a full description must be given, without exaggeration or concealment, to the person of any possible discomforts and risks of the treatment (including possible loss of memory),

(c) a full description must be given to the person of any expected benefits of the treatment,

(d) a full disclosure must be made, without exaggeration or concealment, to the person of any appropriate alternative treatments that would be advantageous to the person,

(e) an offer must be made to the person to answer any inquiries concerning the procedures or any part of them,

(f) the person must be given notice that the person is free to refuse or to withdraw consent and to discontinue the procedures or any part of them at any time,

(g) a full disclosure must be made to the person of any financial relationship between the person proposing the administration of the treatment or the administering medical practitioner, or both, and the facility in which it is proposed to administer the treatment,

(h) the person must be given notice of their right to obtain legal and medical advice and to be represented before giving consent,

(i) any question relating to the techniques or procedures to be followed that is asked by the person must have been answered and the answers must appear to have been understood by the person,

(j) a form setting out the steps in this subsection is to be given to the person and an oral explanation of the matters dealt with in the form is to be given to the person in a language with which the person is familiar.

(3) The regulations are to prescribe forms setting out the steps to be taken before obtaining informed consent to electro convulsive therapy.

Person impaired by medication incapable of giving informed consent

92 Person impaired by medication incapable of giving informed consent

(cf 1990 Act, s 184)

A person is presumed to be incapable of giving informed consent to the administration of electro convulsive therapy if, when consent is sought, the person is affected by medication that impairs the person’s ability to give that consent.

When electro convulsive therapy may be administered to persons other than involuntary patients or persons under 16

93 When electro convulsive therapy may be administered to persons other than involuntary patients or persons under 16

(cf 1990 Act, s 185)

(1) Electro convulsive therapy may be administered to a person (other than an involuntary patient or a person who is under the age of 16 years) if—

(a) the person is capable of giving informed consent to the treatment and has given informed consent to the treatment, including a written consent in the form prescribed by the regulations, and

(b) a certificate is given under this section by at least 2 medical practitioners, at least one of whom is a psychiatrist.

(2) A certificate under this section is a certificate in writing that, after considering the clinical condition and history of treatment of, and any appropriate alternative treatments for, the person, the medical practitioners are of the opinion that electro convulsive therapy is—

(a) a reasonable and proper treatment to be administered to the person, and

(b) necessary or desirable for the safety or welfare of the person.

(3) An authorised medical officer who is unsure whether a person is capable of giving informed consent may apply to the Tribunal for an ECT consent inquiry to determine whether the person is capable of giving informed consent and has given that consent.

s 93: Am 2014 No 85, Sch 1 [56].

When electro convulsive therapy may be administered to involuntary patients or persons under 16

94 When electro convulsive therapy may be administered to involuntary patients or persons under 16

(1) Electro convulsive therapy may be administered to an involuntary patient or a person who is under the age of 16 years in accordance with an ECT determination made by the Tribunal at an ECT administration inquiry.

(2) An authorised medical officer may apply to the Tribunal for an ECT administration inquiry about an involuntary patient (other than a patient who is under the age of 16 years) if a certificate is given under this section by at least 2 medical practitioners, at least one of whom is a psychiatrist.

(2A) An authorised medical officer may apply to the Tribunal for an ECT administration inquiry about a person who is under the age of 16 years (including an involuntary patient) if a certificate is given under this section by at least 2 medical practitioners, at least one of whom is a psychiatrist with expertise in the treatment of children or adolescents.

(3) A certificate under this section is a certificate in writing that, after considering the clinical condition and history of treatment of, and any appropriate alternative treatments for, the patient, the medical practitioners are of the opinion that electro convulsive therapy is—

(a) a reasonable and proper treatment to be administered to the patient, and

(b) necessary or desirable for the safety or welfare of the patient.

s 94: Am 2014 No 85, Sch 1 [57]–[59].

Tribunal to hold inquiries promptly

95 Tribunal to hold inquiries promptly

The Tribunal must hold an ECT inquiry about a person as soon as practicable after an application is made to it under this Division.

Purpose and findings of ECT inquiries

96 Purpose and findings of ECT inquiries

(1) ECT consent inquiries about voluntary patients The Tribunal is, on an ECT consent inquiry, to determine whether or not the person is capable of giving informed consent to the administration of electro convulsive therapy and has given that consent.

(2) ECT administration inquiries about involuntary patients or persons under 16 The Tribunal is, on an ECT administration inquiry, to determine whether or not an ECT determination should be made in relation to the patient or person under the age of 16 years about whom the inquiry is held.

(3) ECT determinations that enable treatment of involuntary patients (other than persons under 16) An ECT determination for an involuntary patient (other than a person under the age of 16 years) is a determination—

(a) that the patient is capable of giving informed consent to the electro convulsive therapy and has given that consent, or

(b) that—

(i) the patient is incapable of giving informed consent or is capable of giving informed consent to the electro convulsive therapy but has refused, or has neither consented nor refused, to have the treatment administered, and

(ii) after considering the medical opinions and other information placed before it, the Tribunal is satisfied the electro convulsive therapy is a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the patient.

(3A) ECT determinations that enable treatment of persons under 16 An ECT determination for a person under the age of 16 years (including an involuntary patient) is a determination—

(a) in the case of an involuntary patient or other person, that—

(i) the person is capable of giving informed consent to the electro convulsive therapy and has given that consent, and

(ii) after considering the medical opinions and other information placed before it, the Tribunal is satisfied that the electro convulsive therapy is a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the person, or

(b) in the case of an involuntary patient, that—

(i) the patient is incapable of giving informed consent or is capable of giving informed consent to the electro convulsive therapy but has refused, or has neither consented nor refused, to have the treatment administered, and

(ii) after considering the medical opinions and other information placed before it, the Tribunal is satisfied that the electro convulsive therapy is a reasonable and proper treatment and is necessary or desirable for the safety or welfare of the person.

(4) Maximum number of treatments for involuntary patients or persons under 16 In any ECT determination, the Tribunal must also specify the number of treatments that are approved (not exceeding 12).

(5) Increase in maximum number of treatments for involuntary patients or persons under 16 Despite subsection (4), the Tribunal may specify more than 12 treatments if the Tribunal is satisfied that, having regard to the special circumstances of the case (including the success of any previous electro convulsive therapy), the higher number of treatments is justified.

(5A) Rights of appearance A patient or person must appear before the Tribunal during an ECT inquiry unless—

(a) an authorised medical officer applies to have the ECT inquiry carried out in the absence of the patient or person because the patient or person has refused to attend the ECT inquiry or because the officer is of the opinion that the patient or person is too unwell to attend the ECT inquiry, and

(b) the Tribunal is satisfied that the patient or person has refused to attend or is too unwell to attend and is unlikely to be well enough to attend within a reasonable period, and

(c) the Tribunal is satisfied that any representative of the patient or person (being an Australian legal practitioner, or other person approved by the Tribunal, who is representing the patient or person for the purposes of the inquiry) has been notified of the review or that reasonable steps have been taken to notify the representative, and

Note.

Section 154 contains provisions relating to the right to representation.

(d) the Tribunal has considered the views (if known) of each of the following—

(i) the patient or person,

(ii) any representative of the patient or person,

(iii) the designated carer of the patient or person,

(iv) the principal care provider of the patient or person, and

(e) the Tribunal is of the opinion that determining the ECT inquiry in the absence of the patient or person is desirable for the safety or welfare of the patient or person.

(6) Procedures applying to ECT inquiries For the purposes of an ECT inquiry, the Tribunal is to do the following—

(a) in the case of an ECT administration inquiry, take reasonable steps to find out from the patient about whom the inquiry is being held whether or not the patient was aware of the authorised medical officer’s obligation to give notice of the inquiry and whether notice of the inquiry was given in accordance with this Act,

(b) take reasonable steps to inform the patient or person about whom the inquiry is being held of the nature and possible results of the inquiry, if the patient or person has not or appears not to have been informed of them,

(c) inquire about the administration of any medication to the patient or person about whom the inquiry is being held and take account of its effect on the patient’s or person’s ability to communicate,

(d) take reasonable steps to consider the views of the patient or person about whom the inquiry is being held about the treatment,

(d1) in the case of an ECT administration inquiry for a person who is under the age of 16 years, consider the views (if known) of any designated carer, principal care provider of the person or parent (if not a designated carer or the principal care provider),

(e) consider any information before it.

(7) Duration of ECT determination An ECT determination has effect for 6 months from the date the determination is made unless a shorter period is specified in the determination.

s 96: Am 2010 No 96, Sch 1 [6]; 2014 No 85, Sch 1 [60]–[65]; 2018 No 2, Sch 4 [5]–[8].

Electro convulsive therapy register

97 Electro convulsive therapy register

(1) A register containing information relating to the administration of electro convulsive therapy is to be kept in relation to each mental health facility or other place at which the treatment is administered.

(2) The medical superintendent of the facility or the person approved by the Secretary for any other place is to keep the register or cause it to be kept.

(3) The register is to be in the form prescribed by the regulations.

(4) Particulars of a proposed administration of electro convulsive therapy are to be entered in the register before the therapy is administered, and any differences in the particulars of treatment actually administered are to be subsequently noted and explained in the register.

(5) The register may be inspected at any time by the Tribunal, the President, the Principal official visitor, an official visitor or the Secretary.

s 97: Am 2014 No 85, Sch 1 [66].

Definitions

98 Definitions

In this Part—

involuntary patient includes a forensic patient and a correctional patient.

special medical treatment means—

(a) any treatment, procedure, operation or examination that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out, or

(b) any other kind of treatment declared by the regulations to be special medical treatment for the purposes of this Part.

surgical operation means a surgical procedure, a series of related surgical operations or surgical procedures, and the administration of an anaesthetic for the purpose of medical investigation.

s 98: Am 2008 No 79, Sch 2 [26].

Emergency surgery for involuntary patients

99 Emergency surgery for involuntary patients

(1) An authorised medical officer or the Secretary may consent to the performance of a surgical operation on an involuntary patient (other than a forensic patient or correctional patient not suffering from a mental illness) if of the opinion that—

(a) the patient is incapable of giving consent to the operation or is capable of giving consent but refuses to give that consent or neither gives nor refuses to give that consent, and

(b) it is necessary, as a matter of urgency, to perform a surgical operation on the patient in order to save the patient’s life or to prevent serious damage to the patient’s health or to prevent the patient from suffering or continuing to suffer significant pain or distress.

(2) An authorised medical officer or the Secretary may consent to the performance of a surgical operation on a forensic patient or correctional patient not suffering from a mental illness if of the opinion that—

(a) the patient is incapable of giving consent to the operation, and

(b) it is necessary, as a matter of urgency, to perform a surgical operation on the patient in order to save the patient’s life or to prevent serious damage to the patient’s health or to prevent the patient from suffering or continuing to suffer significant pain or distress.

(3) The consent is to be in writing and signed by the person giving the consent.

(4) The authorised medical officer of the mental health facility in which the involuntary patient is detained must, as soon as practicable after the performance of a surgical operation consented to under this section, notify the Tribunal of the operation.

s 99: Am 2008 No 79, Sch 2 [27].

100

Secretary may consent to surgery

100 Secretary may consent to surgery

(1) An authorised medical officer may apply to the Secretary for consent to the performance of a surgical operation on an involuntary patient.

(2) An application is to be made to the Secretary if a designated carer of the patient agrees, in writing, to the performance of the surgical operation.

(3) On an application, the Secretary may consent to the performance of a surgical operation on an involuntary patient if of the opinion that—

(a) the patient is incapable of giving consent to the operation, and

(b) it is desirable, having regard to the interests of the patient, to perform the surgical operation on the patient.

(4) (Repealed)

(5) An application must be made not earlier than 14 days after notice of the proposed application is given under section 78, but may be made sooner if—

(a) the authorised medical officer is of the opinion that the urgency of the circumstances requires an earlier determination of the matter, or

(b) the person notified indicates that the person does not object.

(6) The consent is to be in writing and signed by the person giving the consent.

s 100: Am 2008 No 79, Sch 2 [27]; 2014 No 85, Sch 1 [67] [68].

101

Tribunal may consent to surgery

101 Tribunal may consent to surgery

(1) An authorised medical officer of a mental health facility may apply to the Tribunal for consent to the performance of a surgical operation on an involuntary patient detained in the facility.

(2) An application is to be made to the Tribunal if none of the designated carers of the person agree, in writing, to the performance of the surgical operation.

(3) On an application, the Tribunal may consent to the performance of a surgical operation on an involuntary patient (other than a forensic patient or correctional patient not suffering from a mental illness) if the Tribunal is of the opinion that—

(a) the patient is incapable of giving consent to the operation or is capable of giving consent but refuses to give that consent or neither gives nor refuses to give that consent, and

(b) it is desirable, having regard to the interests of the patient, to perform the surgical operation on the patient.

(4) On an application, the Tribunal may consent to the performance of a surgical operation on a forensic patient or correctional patient not suffering from a mental illness if the Tribunal is of the opinion that—

(a) the patient is incapable of giving consent to the operation, and

(b) it is desirable, having regard to the interests of the patient, to perform the surgical operation on the patient.

(5) An application for consent must be made not earlier than 14 days after notice of the proposed application is given under section 78, but may be made sooner if—

(a) the authorised medical officer is of the opinion that the urgency of the circumstances requires an earlier determination of the matter, or

(b) the person notified indicates that the person does not object.

s 101: Am 2008 No 79, Sch 2 [27]; 2014 No 85, Sch 1 [69] [70].

102

Special medical treatment

102 Special medical treatment

(1) A person must not carry out special medical treatment on a patient otherwise than in accordance with this Part, unless the person is a medical practitioner and—

(a) is of the opinion that it is necessary, as a matter of urgency, to carry out special medical treatment on the patient in order to save the patient’s life or to prevent serious damage to the patient’s health, or

(b) consent to the treatment being carried out is given by the Tribunal in accordance with this Part.

Maximum penalty on indictment: imprisonment for 7 years.

(2) This section does not apply to a patient who is a child to whom section 175 of the Children and Young Persons (Care and Protection) Act 1998 applies.

Note.

This provision provides an offence in relation to carrying out special medical treatment on children.

103

Tribunal may consent to special medical treatment

103 Tribunal may consent to special medical treatment

(1) An authorised medical officer of a mental health facility may apply to the Tribunal for consent to the carrying out of special medical treatment on an involuntary patient detained in the facility.

(2) On an application, the Tribunal may consent to the carrying out of special medical treatment on a patient (other than prescribed special medical treatment) if the Tribunal is satisfied that it is necessary to prevent serious damage to the health of the patient.

(3) The Tribunal may consent to the carrying out of prescribed special medical treatment if the Tribunal is satisfied that—

(a) the treatment is the only or most appropriate way of treating the patient, and is manifestly in the best interests of the patient, and

(b) in so far as the National Health and Medical Research Council has prescribed guidelines that are relevant to the carrying out of the treatment—those guidelines have been or will be complied with as regards the patient.

(4) The Tribunal must not consent to the carrying out of special medical treatment on a patient who is under the age of 16 years.

(5) An application for consent must be made not earlier than 14 days after notice of the proposed application is given under section 78, but may be made sooner if the authorised medical officer is of the opinion that the urgency of the circumstances requires an earlier determination of the matter or the person notified agrees.

(6) In this section—

prescribed special medical treatment means special medical treatment referred to in paragraph (b) of the definition of special medical treatment in section 98.

104

Effect of consents

104 Effect of consents

A consent given under this Part has the same effect as if it were given by the patient and the patient had the capacity to consent or, in the case of a child under the age of 14 years or a person under guardianship, by the person having capacity to consent on the child’s or person’s behalf.

More sections below

Source text: opening excerpt

Sourced from legislation.nsw.gov.au, CC BY 4.0.

1 Name of Act

This Act is the Mental Health Act 2007.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

3 Objects of Act

The objects of this Act are—

(a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and

(b) to facilitate the care and treatment of those persons through community care facilities, and

(c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and

(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and

(e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.

Note.

See also section 68 which contains principles for care and treatment and section 105 which sets out objectives for the New South Wales public health system.

s 3: Am 2014 No 85, Sch 1 [2]–[4].

4 Definitions

(1) In this Act—

accredited person means a person accredited under section 136.

ambulance officer means a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act.

assessable person—see section 17.

authorised medical officer of a mental health facility means—

(a) the medical superintendent of the mental health facility, or

(b) a medical officer, nominated by the medical superintendent for the purposes of this Act, attached to the mental health facility concerned.