Part 8Further protections for persons with mental illness

Part 8—Further protections for persons with mental illness Division 1—Patients' rights and protections 45—Assistance of interpreters (1) If— (a) a medical practitioner or authorised mental health professional intends to conduct an examination of a person for the purposes of this Act; and (b) the person is unable to communicate adequately in English but could communicate adequately with the assistance of an interpreter, the medical practitioner or authorised mental health professional must arrange for a competent interpreter to assist during the examination of the person. (2) Subsection (1) does not apply— (a) to an examination following which a level 1 community treatment order or level 1 inpatient treatment order may be made unless the assistance of an interpreter can be readily arranged by the medical practitioner or authorised mental health professional in the circumstances; or (b) if the medical practitioner or authorised mental health professional and the person can communicate adequately in a language other than English. 46—Copies of Tribunal's orders, decisions and statements of rights to be given (1) A registrar of the Tribunal must ensure that a patient is given, as soon as practicable after the making by the Tribunal of an order or decision under this Act in respect of the patient— (a) a copy of the order or decision; and (2) If the patient is unable to read or otherwise comprehend the statement of rights, the registrar must ensure that any steps are taken that are practicable in the circumstances to convey the information contained in the statement to the patient. (3) Subject to subsection (4), the registrar must ensure that a copy of the order or decision and the statement of rights are sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable. (a) the person to be sent or given a copy of the order or decision and the statement of rights must be— (ii) if that is not practicable or appropriate—a guardian, medical agent, relative, carer or friend of the patient who appears to have or be assuming responsibility for the care of the patient; or (iii) if that is not practicable or appropriate—any other guardian, medical agent, relative, carer or friend of the patient to whom it is practicable and appropriate to send or give a copy of the order or decision and the statement; (b) there is no requirement for a copy of the order or decision and the statement to be sent or given to a person whose whereabouts are not known to or readily ascertainable by the registrar; (c) it is not appropriate for a copy of the order or decision and the statement to be sent or given to a particular person if there is reason to believe that it would be contrary to the patient's best interests to do so. 47—Patients' right to be supported by guardian etc (1) A patient is entitled to have another person's support, wherever practicable, in— (a) the exercise of a right under this Act; or (b) any communications between the patient and a medical practitioner examining or treating the patient or between the patient and the director or staff of a treatment centre in which the patient is an inpatient. (2) The support may be provided by— (a) if the patient is a child—a parent or guardian of the patient; or (b) a guardian, medical agent, relative, carer or friend of the patient who has been nominated by the patient for the purpose or who has or is assuming responsibility for the care of the patient; or (c) a person who provides advocacy services whether on a professional or voluntary basis; or (d) a community visitor. (3) A person providing support to a patient under this section must be allowed access to the patient subject to reasonable limits imposed by the medical practitioner in charge of the patient's treatment or by the director or staff of a treatment centre in which the patient is an inpatient. (4) However, a person providing support to a patient may be allowed to be present during a medical examination or treatment of the patient or may be excluded according to the discretion of the medical practitioner performing or supervising the examination or treatment. (5) This section is in addition to and does not derogate from the operation of section 4 (which entitles a parent or guardian of a child under 16 years of age to exercise rights conferred under this Act on behalf of the child). 48—Patients' right to communicate with others outside treatment centre (1) A patient in a treatment centre is entitled to— (a) communicate with persons outside the centre; and (b) receive visitors at the centre; and (c) be afforded reasonable privacy in his or her communications with others. (2) The rights conferred by subsection (1) are subject to any restrictions and conditions that have been approved by the Director of the centre as being reasonably required— (a) for carrying into effect any inpatient treatment order that applies to the patient; or (b) for the maintenance of order and security at the centre or the prevention of harm or nuisance to others. (3) No restrictions or conditions are to be applied under this section to communications by post between a patient in a treatment centre and any of the following, or to visits to a patient by any of the following: (a) the Minister; (b) the Tribunal; (c) the Public Advocate; (d) the Chief Psychiatrist; (e) the Health and Community Services Complaints Commissioner within the meaning of the Health and Community Services Complaints Act 2004; (f) a community visitor; (g) a member of Parliament; (h) a legal practitioner (in the practitioner's professional capacity); (i) a person representing, or acting on behalf of, a person or body referred to in any of the preceding paragraphs; (j) a person of a class prescribed by the regulations. 48A—Prohibition on use of spit hoods (1) A person performing a function or exercising a power under this Act must not place a spit hood on the head of a person. Maximum penalty: Imprisonment for 2 years. (2) Subsection (1) applies despite any other provision of this Act or any other Act or law. spit hood means a covering (however described) that is intended to be placed over a person's head to prevent the person from spitting on, or biting, another person. 49—Neglect or ill-treatment A person having the oversight, care or control of a patient who ill‑treats or wilfully neglects the patient is guilty of an offence. Division 2—Community visitor scheme 50—Principal Community Visitor (1) There will be a position of Principal Community Visitor. (2) A person will be appointed to the position of Principal Community Visitor on conditions determined by the Governor and for a term, not exceeding 5 years, specified in the instrument of appointment and, at the expiration of a term of appointment, will be eligible for reappointment. (3) The Governor may remove a person from the position of Principal Community Visitor on the presentation of an address from both Houses of Parliament seeking the person's removal. (4) The Governor may suspend a person from the position of Principal Community Visitor on the ground of incompetence or misbehaviour and, in that event— (a) a full statement of the reason for the suspension must be laid before both Houses of Parliament within 3 sitting days of the suspension; and (b) if, at the expiration of 1 month from the date on which the statement was laid before Parliament, an address from both Houses of Parliament seeking the person's removal has not been presented to the Governor, the person must be restored to the position. (5) The position of Principal Community Visitor becomes vacant if the person appointed to the position— (b) resigns by written notice given to the Minister; or (c) completes a term of appointment and is not reappointed; or (d) is removed from the position by the Governor under subsection (3); or (e) becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or (f) is convicted of an indictable offence or sentenced to imprisonment for an offence; or (g) becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative Assembly of a Territory of the Commonwealth; or (h) becomes, in the opinion of the Governor, mentally or physically incapable of performing satisfactorily the functions of the position. (6) The Minister may appoint a person to act in the position of Principal Community Visitor— (a) during a vacancy in the position; or (b) when the Principal Community Visitor is absent or unable to perform the functions of the position; or (c) if the Principal Community Visitor is suspended from the position under subsection (4). 50A—Community Visitors (1) The Minister may appoint Community Visitors for the purposes of this Act. (2) A person will be appointed to a position of Community Visitor on conditions determined by the Minister and for a term, not exceeding 3 years, specified in the instrument of appointment and, at the expiration of a term of appointment, will be eligible for reappointment. (3) The Minister may, on application by the Principal Community Visitor, or on the Minister's own initiative after consultation with the Principal Community Visitor, suspend or remove a person from a position of Community Visitor for any reason the Minister thinks fit. (4) A position of Community Visitor, becomes vacant if the person appointed to the position— (b) resigns by written notice given to the Minister; or (c) completes a term of appointment and is not reappointed; or (d) is removed from the position by the Minister under subsection (3); or (e) becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or (f) is convicted of an indictable offence or sentenced to imprisonment for an offence; or (g) becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative Assembly of a Territory of the Commonwealth; or (h) becomes, in the opinion of the Minister, mentally or physically incapable of performing satisfactorily the functions of the position. 51—Community visitors' functions and powers (1) Community visitors have the following functions: (a) to conduct visits to and inspections of treatment centres as required or authorised under this Division; (ab) to conduct visits to and inspections of authorised community mental health facilities as required or authorised under this Division; (b) to refer matters of concern relating to the organisation or delivery of mental health services in South Australia or the care, treatment or control of patients to the Minister, the Chief Psychiatrist or any other appropriate person or body; (c) to act as advocates for patients to promote the proper resolution of issues relating to the care, treatment or control of patients, including issues raised by a guardian, medical agent, relative, carer or friend of a patient or any person who is providing support to a patient under this Act; (d) any other functions assigned to community visitors by this Act or any other Act. (2) The Principal Community Visitor has the following additional functions: (a) to oversee and coordinate the performance of the community visitors' functions; (b) to advise and assist other community visitors in the performance of their functions, including the reference of matters of concern to the Minister, the Chief Psychiatrist or any other appropriate person or body; (c) to report to the Minister, as directed by the Minister, about the performance of the community visitors' functions; (d) any other functions assigned to the Principal Community Visitor by this Act or any other Act. (3) A community visitor will, for the purposes of this Division— (a) have the authority to conduct inspections of the premises and operations of any incorporated hospital; and (ab) have the authority to conduct inspections of the premises and operations of any incorporated health service; and (b) be taken to be an inspector under Part 10 of the Health Care Act 2008. 51A—Delegation by Principal Community Visitor (1) The Principal Community Visitor may delegate a power or function of the Principal Community Visitor under this Act to— (a) another community visitor; or (b) a particular person or body; or (c) the person for the time being performing particular duties or holding or acting in a particular position. (2) A delegation under this section— (b) does not derogate from the power of the Principal Community Visitor to act in a matter; and (c) is revocable at will by the Principal Community Visitor. 52—Visits to and inspections of treatment centres (1) Subject to this Division, each treatment centre— (a) must, in accordance with any requirements prescribed by the regulations, be visited and inspected at least once in every 2 month period; and (b) may be visited at any time. (3) On a visit to a treatment centre under this section, a community visitor must— (a) so far as practicable, inspect all parts of the centre used for or relevant to the care, treatment or control of patients; and (b) so far as practicable, make any necessary inquiries about the care, treatment and control of each inpatient; and (c) take any other action required under the regulations. (4) After any visit to a treatment centre, the community visitor must (unless the community visitor is the Principal Community Visitor) report to the Principal Community Visitor about the visit in accordance with the requirements of the Principal Community Visitor. (5) A visit may be made with or without previous notice and at any time of the day or night, and be of such length, as the community visitor thinks appropriate. (6) A visit may be made at the request of a patient or a guardian, medical agent, relative, carer or friend of a patient or any person who is providing support to a patient under this Act. 52A—Visits to and inspection of authorised community mental health facilities (1) Subject to this Division, an authorised community mental health facility— (a) must, in accordance with any requirements prescribed by the regulations, be visited and inspected— (i) in the case of a residential authorised community mental health facility—at least once in every 4 month period (unless the regulations provide otherwise); or (ii) in the case of an outpatient authorised community mental health facility—at least once in every 6 month period; and (b) may be visited at any time. (3) On a visit to an authorised community mental health facility, a community visitor must— (a) so far as practicable, inspect all parts of the facility used for or relevant to the care, treatment or control of patients; and (b) take any other action required under the regulations. (4) After any visit to an authorised community mental health facility, the community visitor must (unless the community visitor is the Principal Community Visitor) report to the Principal Community Visitor about the visit in accordance with the requirements of the Principal Community Visitor. (5) A visit may be made with or without previous notice and at any time of the day or night, and be of such length, as the community visitor thinks appropriate. (6) A visit may be made at the request of a patient or a guardian, medical agent, relative, carer or friend of a patient or any person who is providing support to a patient under this Act. (7) In this section— outpatient authorised community mental health facility means an authorised community mental health facility at which outpatient treatment is provided; residential authorised community mental health facility means an authorised community mental health facility at which mental health services are provided on a residential basis (whether or not outpatient treatment is also provided at the facility). 52B—Visits and inspections by audiovisual or other electronic means (1) This section applies to a visit and inspection of a treatment centre, authorised community mental health facility or other premises by a community visitor that is required or authorised under this or any other Act if— (a) in the opinion of the Principal Community Visitor, it is not reasonably practical for a community visitor to physically visit or enter the relevant premises; or (b) the visit or inspection occurs in any other circumstances prescribed by the regulations. (2) Without limiting the generality of subsection (1), the reasons that a physical visit or inspection may not be reasonably practical include— (a) a lack of availability of community visitors to conduct a physical visit or inspection; or (b) the remoteness of the relevant premises; or (c) the need to prevent the spread of contagious diseases. (3) The following provisions apply in relation to a visit or inspection to which this section applies: (a) the visit or inspection may be conducted by means of audiovisual or other electronic means; (b) despite a provision of this or any other Act requiring the visit or inspection to be conducted by more than 1 community visitor, the visit or inspection may be conducted by a single community visitor; (c) a reference in this or any other Act that contemplates a community visitor being physically on the relevant premises is to be construed accordingly. (4) Subject to this Act, a community visitor may, in relation to a visit or inspection to which this section applies, give such directions as the community visitor considers reasonably necessary to enable the visit or inspection to occur by audiovisual or other electronic means, including— (a) directions requiring a person, or person of a class— (i) to take reasonable steps to facilitate the visit or inspection; and (ii) to make equipment of a specified kind available for use in the course of the visit or inspection; and (iii) to grant access to such parts of the premises as may reasonably be accessed using the relevant audiovisual or other means; or (b) directions requiring a person, or person of a class, to provide the community visitor with access to a specified patient or resident of the premises, or patients or residents of a specified class, and for an appropriate area within the premises to be made available to enable confidential communication with the community visitor by the relevant audiovisual or other means. (5) A person must not, without reasonable excuse, refuse or fail to comply with a direction under subsection (4). Maximum penalty: $5 000. (6) A community visitor must ensure that the following information is reported on a publicly accessible website and updated on at least a quarterly basis: (a) the number of visits or inspections by the community visitor that have occurred by audiovisual or other electronic means in accordance with this section; (b) except where the Principal Community Visitor or Chief Psychiatrist (as the case requires) is of the opinion that it would be inappropriate to identify the premises or the address of the premises—the name and address of any premises subject to such a visit or inspection; (c) the date on which each such visit or inspection occurred; (d) the reasons why each such visit or inspection was a visit or inspection to which this section applies. (7) A report under subsection (6) must be made by— (a) in the case where the community visitor is the Chief Psychiatrist—the Chief Psychiatrist; or (b) in any other case—the Principal Community Visitor. (8) To avoid doubt, nothing in this section limits a power or function that may be exercised or performed by a community visitor in relation to a visit or inspection. (9) For the purposes of this section, the Chief Psychiatrist will be taken to be a community visitor. 53—Requests to see community visitors (1) A patient or a guardian, medical agent, relative, carer or friend of a patient or any person who is providing support to a patient under this Act may make a request to see a community visitor. (2) If such a request is made to the director of a treatment centre in which the patient is an inpatient, the director must advise a community visitor of the request within 2 days after receipt of the request. 54—Reports by Principal Community Visitor (1) The Principal Community Visitor must, on or before 30 September in every year, forward a report to the Minister on the performance of the community visitors' functions during the financial year ending on the preceding 30 June. (2) The Minister must, within 6 sitting days after receiving a report under subsection (1), have copies of the report laid before both Houses of Parliament. (3) The Principal Community Visitor may, at any time, prepare a special report to the Minister on any matter arising out of the performance of the community visitors' functions. (4) Subject to subsection (5), the Minister must, within 2 weeks after receiving a special report, have copies of the report laid before both Houses of Parliament. (5) If the Minister cannot comply with subsection (4) because Parliament is not sitting, the Minister must deliver copies of the report to the President and the Speaker and the President and the Speaker must then— (a) immediately cause the report to be published; and (b) lay the report before their respective Houses at the earliest opportunity. (6) A report will, when published under subsection (5)(a), be taken for the purposes of any other Act or law to be a report of the Parliament published under the authority of the Legislative Council and the House of Assembly.