Mental Health Act 2015

1 Name of Act This Act is the Mental Health Act 2015.

2 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘care and protection order—see the Children and Young People Act 2008, section 422.’ means that the term ‘care and protection order’ is defined in that section and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

3 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Preliminary Chapter 1

4 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Chapter 2 Objects and important concepts

5 Objects of Act The objects of this Act are to— (a) promote the recovery of people with a mental disorder or mental (b) promote the capacity of people with a mental disorder or mental illness to determine, and participate in, their assessment and treatment, care or support, taking into account their rights in relation to mental health under territory law; and (c) ensure that people with a mental disorder or mental illness receive assessment and treatment, care or support in a way that is least restrictive or intrusive to them; and (d) facilitate access by people with a mental disorder or mental illness to services provided in a way that recognises and respects their rights, inherent dignity and needs; and (e) promote the inclusion of, and participation by, people with a mental disorder or mental illness in communities of their choice; and (f) facilitate access by people with a mental disorder or mental illness to assessment and treatment, care or support as far as practicable in communities of their choice; and (g) support improvements in mental health through mental health promotion, illness prevention and early intervention.

6 Principles applying to Act In exercising a function under this Act, the following principles must be taken into account: (a) a person with a mental disorder or mental illness has the same rights and responsibilities as other members of the community and is to be supported to exercise those rights and responsibilities without discrimination; (b) a person with a mental disorder or mental illness has the right to— (i) consent to, refuse or stop treatment, care or support; and (ii) be told about the consequences of consenting to, refusing or stopping treatment, care or support; (c) a person with a mental disorder or mental illness has the right to determine the person’s own recovery; (d) a person with a mental disorder or mental illness has the right to have the person’s will and preferences, to the extent that they are known or able to be known, taken into account in decisions made about treatment, care or support; (e) a person with a mental disorder or mental illness has the right to access the best available treatment, care or support relating to the person’s individual needs; (f) a person with a mental disorder or mental illness has the right to be able to access services that— (i) are sensitive and responsive to the person’s individual needs, including in relation to age, gender, culture, language, religion, sexuality, trauma and other life experiences; and (ii) observe, respect and promote the person’s rights, liberty, dignity, autonomy and self-respect;

(g) a person with a mental disorder or mental illness has the right to be given timely information, in a way that the person is most likely to understand, to allow the person to make decisions or maximise the person’s contribution to decision-making about the person’s assessment and treatment, care or support; (h) a person with a mental disorder or mental illness has the right to communicate, and be supported in communicating, in a way appropriate to the person; 1 aided augmentative and alternative communication including teletypewriter services, communication boards and communication books 2 unaided augmentative and alternative communication including sign language and facial expression 3 use of an interpreter or translation service 4 use of an independent advocacy service (i) a person with a mental disorder or mental illness has the right to be assumed to have decision-making capacity, unless it is established that the person does not have decision-making capacity; (j) services provided to a person with a mental disorder or mental illness should— (i) respect the informed consent of the person to the person’s assessment and treatment, care or support including consent as expressed in an advance consent direction; and (ii) support and allow the person to make the person’s own decisions; and (iii) be provided in a way that considers and respects the preferences of the person, including those expressed in an advance agreement; and

(iv) promote a person’s capacity to determine the person’s recovery from mental disorder or mental illness; and (v) seek to bring about the best therapeutic outcomes for the person and promote the person’s recovery; and (vi) be therapeutic or diagnostic in nature for the benefit of the person, and never administered as punishment or for the benefit of someone other than the person; and (vii) be delivered in a way that takes account of, and continues to build on, evidence of effective assessment and (viii) be provided in a way that ensures that the person is aware of the person’s rights; and (ix) facilitate appropriate involvement of close relatives, close friends and carers in treatment, care or support decisions in partnership with medical professionals; and (x) acknowledge the impact of mental disorder and mental illness on the close relatives, close friends and carers of people with a mental disorder or mental illness; and (xi) recognise the experience and knowledge of close relatives, close friends and carers about a person’s mental disorder or mental illness; and (xii) promote inclusive practices in treatment, care or support to engage families and carers in responding to a person’s mental disorder or mental illness; and (xiii) promote a high standard of skill and training for the people providing treatment, care or support.

7 Meaning of decision-making capacity For this Act, a person has capacity to make a decision in relation to the person’s treatment, care or support for a mental disorder or mental illness (decision-making capacity) if the person can, with assistance if needed— (a) understand when a decision about treatment, care or support for the person needs to be made; and (b) understand the facts that relate to the decision; and (c) understand the main choices available to the person in relation to the decision; and (d) weigh up the consequences of the main choices; and (e) understand how the consequences affect the person; and (f) on the basis of paragraphs (a) to (e), make the decision; and (g) communicate the decision in whatever way the person can.

8 Principles of decision-making capacity (1) In considering a person’s decision-making capacity under this Act, the following principles must be taken into account: (a) a person’s decision-making capacity is particular to the decision that the person is to make; (b) a person must be assumed to have decision-making capacity, unless it is established that the person does not have decision-making capacity; (c) a person who does not have decision-making capacity must always be supported to make decisions about the person’s treatment, care or support to the best of the person’s ability; (d) a person must not be treated as not having decision-making capacity unless all practicable steps to assist the person to make decisions have been taken;

(e) a person must not be treated as not having decision-making capacity only because— (i) the person makes an unwise decision; or (ii) the person has impaired decision-making capacity under another Act, or in relation to another decision; (f) a person must not be treated as having decision-making capacity to consent to the provision of treatment, care or support only because the person complies with the provision of the treatment, care or support; (g) a person who moves between having and not having decision-making capacity must, if reasonably practicable, be given the opportunity to consider matters requiring a decision at a time when the person has decision-making capacity. (2) A person’s decision-making capacity must always be taken into account in deciding treatment, care or support, unless this Act expressly provides otherwise. (3) An act done, or decision made, under this Act for a person who does not have decision-making capacity must be done in the person’s best interests. (4) In considering a person’s decision-making capacity under this Act, any approved code of practice under section 198 must be taken into account.

9 Meaning of mental disorder mental disorder— (a) means a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion; but (b) does not include a condition that is a mental illness.

10 Meaning of mental illness mental illness means a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person in 1 or more areas of thought, mood, volition, perception, orientation or memory, and is characterised by— (a) the presence of at least 1 of the following symptoms: (i) delusions; (ii) hallucinations; (iii) serious disorders of streams of thought; (iv) serious disorders of thought form; (v) serious disturbance of mood; or (b) sustained or repeated irrational behaviour that may be taken to indicate the presence of at least 1 of the symptoms mentioned in paragraph (a).

11 People not to be regarded as having mental disorder or For this Act, a person is not to be regarded as having a mental disorder or mental illness only because of any of the following: (a) the person expresses or refuses or fails to express, or has political opinion or belief; (b) the person expresses or refuses or fails to express, or has religious opinion or belief; (c) the person expresses or refuses or fails to express, or has philosophy;

(d) the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular sexual preference or sexual orientation; (e) the person engages in or refuses or fails to engage in, or has engaged in or has 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 has refused or failed to engage in, a particular religious activity; (g) the person engages in or has engaged in 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 takes or has taken alcohol or any other drug; (k) the person engages in or has engaged in antisocial behaviour.

12 Meaning of carer (1) For this Act, a person is a carer if the person provides personal care, support or assistance to a person who has a mental disorder or mental (2) However, a person is not a carer for another person— (a) in relation to care, support or assistance that is provided— (i) under a commercial arrangement, or an arrangement that is substantially commercial; or (ii) in the course of doing voluntary work for a charitable, welfare or community organisation; or (iii) as part of a course of education or training; or

(b) just because the person is the domestic partner, parent, child or other relative, or guardian of the other person; or (c) just because the person lives with the other person.

13 Proceedings relating to children A person who is the subject of a proceeding is a child for the proceeding if the person was a child when the proceeding began.

Rights in relation to information and communication Part 3.1 Chapter 3 Rights of people with mental disorder or mental illness Part 3.1 Rights in relation to information and communication 14 Meaning of responsible person—pt 3.1 responsible person means— (a) for a mental health facility that is not conducted by the Territory—the owner of the facility; or (b) for a psychiatric facility conducted by the Territory—the chief psychiatrist; or (c) for any other mental health facility or community care facility conducted by the Territory—the director-general of the administrative unit responsible for the conduct of the facility.

15 Information to be given to people facility must ensure that, as soon as practicable after it is decided to give treatment, care or support to a person at the facility, the person— (a) is orally advised of their rights under this Act; and (b) is given a written information statement including— (i) a statement of the right to obtain a second opinion from an appropriate mental health professional; and (ii) a statement of the right to obtain legal advice; and

Part 3.1 Rights in relation to information and communication (iii) a statement that, if the person has decision-making capacity, the person has the right to— (A) nominate someone else to be the person’s nominated (B) enter into an advance agreement; and (C) make an advance consent direction; and (iv) information about the role of a nominated person under this Act; and (v) the location of the information required to be available at the facility under section 16; and (vi) anything else prescribed by regulation. (2) A mental health professional giving treatment, care or support in the community to a person with a mental disorder or mental illness must ensure that the advice and information mentioned in subsection (1) (a) and (b) is given to the person as soon as practicable after it is decided to give the person treatment, care or support in the community. (3) The responsible person or mental health professional must ensure that the advice and information— (a) is provided in a way that the person is most likely to understand; and (b) if the person appears to be unable to understand the advice or information, the public advocate is told of that fact. (4) The responsible person or mental health professional must also take reasonable steps to give a copy of the information to— (a) if the person has a nominated person—the nominated person; and

Rights in relation to information and communication Part 3.1 (d) if a health attorney is involved in the treatment, care or support (e) if the person is a child—each person with parental responsibility (f) if the person has a legal representative—the legal representative; and (g) if the person has a carer—the carer.

16 Information to be available at facilities facility must ensure that current copies of the following information are available at the facility in a place readily accessible to people admitted to or receiving treatment, care or support at the facility: (a) this Act, the Guardianship and Management of Property Act 1991 and any other relevant legislation; (b) any publications prepared by the administrative unit responsible for that legislation for the purpose of explaining the legislation; (c) information statements printed in different languages; (d) a list of the names, addresses, telephone numbers and relevant functions of the entities prescribed by regulation. (2) The responsible person must also ensure that a notice indicating where the information is available is displayed in a prominent position at the facility.

Part 3.1 Rights in relation to information and communication

17 Communication facility must ensure that a person admitted to or receiving treatment, care or support at the facility— (a) is given reasonable opportunities and facilities to communicate with people of the person’s choice by means other than written communication; and (b) is given, on request, reasonable opportunities and facilities for preparing written communications and for enclosing the communications in sealed envelopes. (2) The responsible person for a mental health facility or community care facility must ensure that any written communication addressed to or written by a person admitted to or receiving treatment, care or support at the facility is forwarded, without being opened and without delay, to the person to whom it is addressed. (3) Subsection (2) does not apply if the responsible person is complying with a limit imposed on communication between the admitted person and other people under section 115 (Limits on communication— forensic mental health order).

18 Failure by owner of facility to comply with pt 3.1 (1) The owner of a mental health facility that is not conducted by the Territory commits an offence if the owner fails to comply with this part. (2) Subsection (1) does not apply if the owner has a reasonable excuse.

Nominated people Part 3.2

19 Nominated person (1) A person with a mental disorder or mental illness, who has decision-making capacity, may, in writing nominate someone else to be the person’s nominated person. 1 a close relative or close friend 2 a carer 3 the person’s neighbour Note If a person makes an advance agreement under pt 3.3, the agreement may set out contact details for a nominated person (see s 26 (2) (c)). (2) However, a person cannot be nominated under subsection (1) unless (b) is able to undertake the functions of a nominated person; and (c) is readily available; and (d) agrees to the nomination.

20 Nominated person—functions (1) The main function of a nominated person for a person with a mental disorder or mental illness is to help the person by ensuring that the interests, views and wishes of the person are respected if the person requires treatment, care or support for a mental disorder or mental (2) The other functions of a nominated person include— (a) receiving information under this Act; and (b) being consulted about decisions in relation to treatment, care or support; and

(c) other functions given to the nominated person under this Act.

21 Nominated person—obligations of person in charge of The person in charge of an approved mental health facility or approved community care facility must take all reasonable steps to ensure that— (a) a person receiving treatment, care or support at the facility is asked whether the person has a nominated person; and (b) if the person has a nominated person— (i) details about the nominated person and a copy of the written nomination are kept with the person’s record; and (ii) a process is in place to periodically check the currency of the information kept under subparagraph (i); and (iii) if the ACAT is involved in decisions about the person— the name of and contact information for the nominated person is given to the ACAT.

22 Nominated person—end of nomination (1) A person who has a nominated person and has decision-making capacity may end the nomination by telling a member of the person’s treating team, orally or in writing, that they do not want the nominated person to continue to perform the functions of a nominated person. (2) A nominated person may end their nomination by telling a member of the person’s treating team, orally or in writing, that they are not able to continue to perform the functions of a nominated person. (3) A nomination ended by a person under subsection (1) or (2) ends on— (a) the day the person tells the member of the treating team; or (b) if the person tells the member of the treating team in writing that the nomination ends on a later day—the later day.

Nominated people Part 3.2 (4) The chief psychiatrist may end the nomination of a nominated person if— (a) the chief psychiatrist believes on reasonable grounds that— (i) the nominated person is not able to continue to perform the functions of a nominated person under section 20 (Nominated person—functions); or (ii) the nominated person no longer satisfies the criteria mentioned in section 19 (2) (Nominated person); or (iii) it is in the best interest of the person who made the nomination that the nomination ends; and (b) the chief psychiatrist consults with the person who made the nomination about the reasonable grounds for ending the nomination. (5) If the chief psychiatrist ends a nomination under subsection (4), the chief psychiatrist— (a) must make a record about the reason for ending the nomination; and (b) must give written notice of the day that the nomination is to end to the following: (i) the person who made the nomination; (ii) the nominated person; (iii) a member of the person’s treating team; and (c) may, if the person who made the nomination has decision-making capacity, ask the person whether there is someone else who can be nominated; and

(d) must advise the person who made the nomination about advocacy services that may be available to provide assistance to Examples—par (d) 1 the public advocate 2 ACT Disability, Aged and Carer Advocacy Service (6) A member of a person’s treating team who is told about a nomination ending under subsection (1), (2) or (4) must ensure that— (a) information about the nomination ending is entered in the person’s record as soon as practicable; and (b) the person is told in a way that the person is most likely to understand that the information has been entered in the person’s record; and (c) the person is given a copy of the information entered in the treating team, for a person with a mental disorder or mental illness— see section 24.

23 Nominated person—protection from liability (1) A nominated person is not civilly liable for anything done or omitted to be done honestly and without recklessness— (a) in the exercise of a function under this Act; or (b) in the reasonable belief that the act or omission was in the exercise of a function under this Act. Note A reference to an Act includes a reference to the statutory instruments (2) Any civil liability that would, apart from subsection (1), attach to a nominated person attaches instead to the Territory.

Part 3.3 Advance agreements and advance consent directions

24 Definitions—pt 3.3 representative, of a treating team, means the member of the treating team nominated by the team to exercise the functions of a representative for this part. treating team, for a person with a mental disorder or mental illness, means the mental health professionals involved in the treatment care or support of the person for a particular episode of treatment, care or support, and includes— (a) if the person names another mental health professional as the person’s current mental health professional—that other mental health professional; and (b) if another mental health professional referred the person to the treating team for that episode of care—that other mental health professional.

25 Rights in relation to advance agreements and advance consent directions The representative of the treating team for a person with a mental disorder or mental illness must, as soon as practicable, ensure that the (a) is told that the person may enter into an advance agreement; and (b) is given the opportunity to enter into an advance agreement; and (c) is told that the person may make an advance consent direction; and (d) is given the opportunity to make an advance consent direction; and

(e) is told that the person may have someone with them to assist in entering into an advance agreement or making an advance Example—par (e) a nominated person could assist the person

26 Entering into advance agreement (1) A person with a mental disorder or mental illness who has decision-making capacity may enter into an agreement (an advance agreement) with the person’s treating team that sets out— (a) information the person considers relevant to their treatment, care or support for the mental disorder or mental illness (but not information more appropriate to include in an advance consent direction); and Note See s 27 (1) for what an advance consent direction may be about. (b) any preferences the person has in relation to practical help the person may need as a result of the mental disorder or mental Examples—practical help 1 arranging for the payment of bills 2 arranging care or providing care for a close relative or close friend usually cared for by the person with the mental disorder or mental illness (2) An advance agreement for a person may also set out the following: (a) if the person has an advance consent direction—a copy of the advance consent direction; (b) if the person has a nominated person—contact details for the nominated person; (c) if there is a person who is likely to provide practical help under the agreement—contact details for the person; (d) if the person has a carer—contact details for the carer;

Management of Property Act 1991—contact details for the guardian; Act 2006—contact details for the attorney; (g) any other relevant details. Examples—par (g) 1 that the person cannot speak, read or write English, but is fluent in another stated language (for example, AUSLAN or Italian) 2 that the person cannot speak but can communicate using a stated communication device (for example, a communication book or board) (3) An advance agreement for a person must be— (b) signed by— (ii) the representative of the person’s treating team; and (iii) if the person has a nominated person—the nominated (4) If there is a person who is likely to provide practical help under the advance agreement, the agreement may also be signed by that person. (5) The representative of the person’s treating team must ensure that— (a) the advance agreement is entered in the person’s record; and (b) a copy of the advance agreement is given to— (ii) if the person has a nominated person—the nominated

(iii) if there is a person who is likely to provide practical help under the agreement and the person consents to that person being given a copy—that person; and (iv) if the person has a carer and the person consents to the carer being given a copy—the carer; and (v) if the person has a guardian under the Guardianship and ACAT; and (vi) if the person has an attorney under the Powers of Attorney (vii) any member of the person’s treating team who does not have access to the person’s record.

27 Making advance consent direction (1) A person with a mental disorder or mental illness may make a direction (an advance consent direction) about 1 or more of the (a) the treatment, care or support that the person consents to receiving if the mental disorder or mental illness results in the person not having decision-making capacity; (b) particular medications or procedures that the person consents to receiving if the mental disorder or mental illness results in the person not having decision-making capacity; (c) particular medications or procedures that the person does not consent to receiving if the mental disorder or mental illness results in the person not having decision-making capacity; (d) the people who may be provided with information about the treatment, care or support the person requires for a mental disorder or mental illness;

(e) the people who are not to be provided with information about the treatment, care or support the person requires for a mental disorder or mental illness. Note The disclosure of personal health information is subject to the Health Records (Privacy and Access) Act 1997. (2) A person with a mental disorder or mental illness may make an advance consent direction only if the person— (a) has decision-making capacity; and (b) has consulted with the person’s treating team about options for treatment care and support in relation to the mental disorder or mental illness. (3) An advance consent direction that does not include advance consent for electroconvulsive therapy or psychiatric surgery must be— (b) signed by the person in the presence of a witness who is not a treating health professional for the person, and by the witness in the presence of the person; and (c) signed by the representative of the person’s treating team in the presence of a witness who is not a treating health professional for the person, and by the witness in the presence of the representative. (4) An advance consent direction that includes advance consent for electroconvulsive therapy must— (b) state the maximum number of times (not more than 9) that electroconvulsive therapy may be administered to the person under the consent; and

(c) be signed by the person in the presence of 2 witnesses who are not treating health professionals for the person, and by each witness in the presence of the other witness and the person; and (d) be signed by the representative of the person’s treating team in the presence of 2 witnesses who are not treating health professionals for the person, and by each witness in the presence of the other witness and the representative. (5) An advance consent direction that includes advance consent for psychiatric surgery must be— (b) signed by the person in the presence of 2 witnesses who are not treating health professionals for the person, and by each witness in the presence of the other witness and the person; and (c) signed by the representative of the person’s treating team in the presence of 2 witnesses who are not treating health professionals for the person, and by each witness in the presence of the other witness and the representative. (6) The representative of the person’s treating team must ensure that— (a) the advance consent direction is entered in the person’s record; and (b) a copy of the advance consent direction is given to— (ii) if the person has a nominated person—the nominated (iii) if the person has a carer and the person consents to the carer being given a copy—the carer; and (iv) if the person has a guardian under the Guardianship and ACAT; and

(v) if the person has an attorney under the Powers of Attorney (vi) any member of the person’s treating team who does not have access to the person’s record.

28 Giving treatment etc under advance agreement or advance consent direction (1) A mental health professional must, before giving treatment, care or support to a person with a mental disorder or mental illness, take reasonable steps to find out whether an advance agreement or advance consent direction is in force in relation to the person. (2) If an advance agreement is in force and the person does not have decision-making capacity, a mental health professional— (a) must, if reasonably practicable, give treatment, care or support to the person in accordance with the preferences expressed in the agreement; and (b) must not apprehend, detain, restrain or use force to give effect to the agreement. (3) If an advance consent direction is in force and the person does not have decision-making capacity, a mental health professional— (a) may give the person the treatment, care or support if the direction gives consent for the treatment, care or support; and (b) may give a particular medication or procedure if the direction indicates that the person consents to the medication or procedure; and (c) must not give a particular medication or procedure if the direction indicates that the person does not consent to the medication or procedure; and (d) must not apprehend, detain, restrain or use force to give effect to the direction.

(4) If an advance consent direction is in force in relation to a person but the person resists being given treatment, care or support to which they have consented under the direction, a mental health professional may give the treatment, care or support to the person only if the ACAT, on application by the mental health professional, orders that the treatment, care or support may be given. (5) If a mental health professional believes on reasonable grounds that giving treatment, care or support to a person with impaired decision-making capacity in accordance with an advance consent direction is unsafe or inappropriate, the mental health professional may give the person other treatment, care or support only if— (a) both of the following apply: (i) the person is willing to receive the treatment, care or (ii) the person has a guardian or health attorney under the Guardianship and Management of Property Act 1991, or attorney under the Powers of Attorney Act 2006, and the guardian, health attorney or attorney gives consent to the treatment, care or support in accordance with the guardian, health attorney or attorney’s appointment; or (b) the ACAT, on application by the mental health professional, orders that the treatment, care or support may be given. (6) The mental health professional must enter in the person’s record the reasons for the treatment, care or support given under subsection (5) (a).

29 Ending advance agreement or advance consent direction (1) A person who has decision-making capacity may end the person’s advance agreement by— (a) telling a member of the person’s treating team, orally or in writing, that the person wants to end the agreement; or

(b) entering into another advance agreement. (2) A person who has decision-making capacity may end the person’s advance consent direction by— (a) telling a member of the person’s treating team, orally or in writing, that the person wants to end the direction; or (b) making another advance consent direction. (3) An advance agreement ended under subsection (1) (a) or an advance consent direction ended under subsection (2) (a) ends on— (a) the day the person tells the member of the person’s treating team; or (b) if the person tells the member of the person’s treating team in writing that agreement or direction ends on a later day—the later day. (4) A member of a person’s treating team who is told about an advance agreement ending under subsection (1) (a) or an advance consent direction ending under subsection (2) (a) must ensure that— (a) information about the end of the agreement or direction— (i) is entered in the person’s record as soon as practicable; and (ii) is given to— (A) any member of the person’s treating team who does not have access to the person’s record; and (B) if the person has a nominated person—the nominated (C) if there is a person who was likely to provide practical help under the agreement and the person consents to that person being given a copy—that person; and (D) if the person has a carer and the person consents to the carer being given a copy—the carer; and

(E) if the person has a guardian under the Guardianship and Management of Property Act 1991—the guardian and the ACAT; and (F) if the person has an attorney under the Powers of Attorney Act 2006—the attorney; and (b) the person is told in a way that the person is most likely to understand that the information has been entered in the person’s record; and (c) the person is given a copy of the information entered in the

30 Effect of advance agreement and advance consent direction on guardian with authority to give consent for treatment, care or support (a) an advance agreement or an advance consent direction is in force in relation to a person; and (b) the person has a guardian under the Guardianship and Management of Property Act 1991 with authority to give consent for medical treatment involving treatment, care or support under this Act. (2) Any power of the guardian to consent to treatment, care or support for the person must be exercised taking into account the advance agreement or advance consent direction. (3) However, the guardian’s consent is not required for any treatment, care or support for which consent is provided under the advance

31 Effect of advance agreement and advance consent direction on attorney with power to deal with health care (a) an advance agreement or an advance consent direction is in force in relation to a person; and (b) the person has an enduring power of attorney under the Powers of Attorney Act 2006 that deals with health care matters under that Act. (2) The advance agreement or advance consent direction may be used by the attorney to work out a person’s wishes or needs under the Powers of Attorney Act 2006, schedule 1, section 1.6 (Participation in decision making). (3) Any power of the attorney to consent to treatment, care or support for the person must be exercised taking into account the advance agreement or advance consent direction. (4) However, the attorney’s consent is not required for any treatment, care or support for which consent is provided under the advance

32 Effect of health direction on previous advance consent direction (a) a person makes an advance consent direction; and (b) after the direction is made the person makes a health direction under the Medical Treatment (Health Directions) Act 2006; and (c) the health direction deals with a matter mentioned in the advance (2) The advance consent direction has no effect to the extent that is inconsistent with the health direction.

Part 4.1 Applications for assessment Note In addition to assessments under this chapter, a person may also be assessed as a result of apprehension and examination under ch 6 (Emergency detention).

33 Applications by people with mental disorder or mental illness—assessment order (1) This section applies if a person believes themself to be, because of mental disorder or mental illness— (a) unable to make reasonable judgments about matters relating to their own health or safety; or (b) unable to do something necessary for their own health or safety; or (c) likely to do serious harm to others. (2) The person may apply to the ACAT for an assessment order in relation to themself.

34 Applications by other people—assessment order (1) This section applies if a person (the applicant) believes on reasonable (a) the health or safety of another person (the subject person) is, or is likely to be, substantially at risk because the subject person is unable, because of mental disorder or mental illness— (i) to make reasonable judgments about matters relating to the subject person’s health or safety; or

Applications for assessment orders Part 4.1 (ii) to do something necessary for the subject person’s health or safety; or (b) another person (the subject person) is doing, or is likely to do, because of mental disorder or mental illness, serious harm to others. (2) The applicant may apply to the ACAT for an assessment order in relation to the subject person.

35 Applications by referring officers—assessment order (1) This section applies if a referring officer believes on reasonable (a) a person alleged to have committed an offence has a mental disorder or mental illness; and (b) because of the mental disorder or mental illness— (i) the person’s health or safety is, or is likely to be, (ii) the person is doing, or is likely to do, serious harm to others; and (c) it may not be appropriate to prosecute, or to continue to prosecute, the person considering— (i) the nature and circumstances of the alleged offence; and (ii) the person’s apparent mental disorder or mental illness.

(2) The referring officer may apply to the ACAT for an assessment order in relation to the person. Note After an assessment is made, the ACAT may decide to make a mental health order in relation to a person (see pt 5.2). The ACAT is not able to make a forensic mental health order for a person unless the person is otherwise a person for whom a forensic mental health order can be made (see ch 7). (3) A referring officer who applies under subsection (2) and believes on reasonable grounds that there is a risk of serious danger to public safety from the person, must tell the ACAT, in writing, about the risk and the basis for the belief about the risk. alleged to have committed an offence—a person is alleged to have committed an offence if— (a) the person is arrested in connection with an offence; or (b) a police officer believes on reasonable grounds that there are sufficient grounds on which to charge the person in connection with an offence; or (c) the person is charged in connection with an offence.

36 Applicant and referring officer to tell ACAT of risks— assessment order (a) a person (the applicant) applies under section 34 (Applications by other people—assessment order), or a referring officer applies under section 35, for an assessment order in relation to someone else; and (b) the applicant or referring officer believes on reasonable grounds that anything to do with the application process is likely to substantially increase— (i) the risk to the other person’s health or safety; or

Applications for assessment orders Part 4.1 (a) the applicant’s or referring officer’s belief about the substantially increased risk; and (3) The ACAT must give the chief psychiatrist a copy of the application.

37 Assessment order (1) The ACAT may order an assessment of a person if— (a) an application for an assessment order is made under part 4.1 and the ACAT is satisfied on the face of the application that— (i) the person appears to have a mental disorder or mental (ii) either— (B) the person is doing, or is likely to do, serious harm to others; or (b) the ACAT reviews a mental health order in force in relation to the person under section 79 (Review of mental health order); or (c) the person is required to submit to the jurisdiction of the ACAT under— (i) an ACAT mental health provision in a care and protection order or interim care and protection order; or (ii) a mental health referral by the Childrens Court in a proceeding for an interim intensive therapy order or intensive therapy order; or (iii) a requirement of an interim intensive therapy order or intensive therapy order; or (d) the person is required by a court to submit to the jurisdiction of (Cwlth), part 1B; or

(e) the ACAT reviews an order for detention in force in relation to the person under section 180 (Review of detention under court Note If a person is assessed under an assessment order as having a mental disorder or mental illness, the ACAT may make a mental health order or forensic mental health order in relation to the person (see s 58, s 66, s 101 and s 108). ACAT mental health provision, in a care and protection order or interim care and protection order—see the Children and Young People Act 2008, section 491.

38 Consent for assessment order (1) If the ACAT is considering ordering an assessment of a person under section 37 (1) (a), (b) or (c), the ACAT must take reasonable steps to— (a) tell the person in writing that— (i) the ACAT is considering ordering an assessment; and (ii) an assessment may lead to an order for treatment; and (iii) if an order for treatment is made at a later time the person’s rights in relation to treatment will be explained to the person at that time; and (b) find out the person’s opinion in relation to the assessment; and (c) obtain the person’s consent to the assessment. (2) However, subsection (1) does not prevent the ACAT from ordering an assessment without the person’s consent.

39 Emergency assessment order (a) the ACAT is considering ordering an assessment of a person under section 37 (1) (a), (b) or (c); and (b) a presidential member of the ACAT has a serious concern about the immediate safety of the person, the applicant for the order or another person arising out of the application process. (2) The presidential member of the ACAT— (a) must give the chief psychiatrist written notice of the serious concern; and (b) may if necessary and reasonable order an assessment without complying with section 38 (Consent for assessment order). Note 1 For principles that must be taken into account when exercising a function Note 2 Section 188 (Notice of hearing) does not apply in relation to the making of an emergency assessment order (see s 188 (3)).

40 Content and effect of assessment order (1) An assessment order (including an emergency assessment order) (a) state the nature of the assessment to be conducted; and (b) state the approved mental health facility or other place at which the assessment is to be conducted and, if appropriate, the person who is to conduct the assessment; and (c) if the assessment is to be conducted at an approved mental health facility— (i) direct the person to be assessed to attend the facility and, if necessary and reasonable, stay at the facility until the assessment has been conducted; and

(ii) direct the person in charge of the facility to— (A) if appropriate, admit the person to be assessed to the facility to conduct the assessment; and (B) if necessary and reasonable, detain the person at the facility until the assessment has been conducted; and (C) provide the assistance that is necessary and reasonable to conduct the assessment. (2) An assessment order (including an emergency assessment order) authorises— (a) the conduct of the assessment stated in the order; and (b) anything necessary and reasonable to be done to conduct the assessment. (3) In making an assessment order (other than an emergency assessment order), the ACAT must explain the effect of section 58 (Psychiatric treatment order) or section 66 (Community care order) to the person in relation to whom the order is to be made, in a way that the person is most likely to understand. Note Under s 58 and s 66, an application is not required for a psychiatric treatment order or community care order in relation to a person who has been assessed under an assessment order as having a mental disorder or mental illness.

41 Public advocate to be told about assessment order The ACAT must tell the public advocate, in writing, about an assessment order made in relation to a person immediately after the order is made.

42 Time for conducting assessment (1) The assessment of a person in relation to whom an assessment order is made must be conducted as soon as practicable, and not later than— (a) 7 days after the day the order is made; or (b) if an earlier day is stated in the order—the stated day; or (c) if a removal order is made under section 43 (2) in relation to the assessment—7 days after the day the removal order is executed. (2) However, the ACAT may, on application, extend the period for conducting the assessment if satisfied, based on clinical evidence provided to it by the person conducting the assessment, that a satisfactory assessment cannot be completed within the period under subsection (1). (3) The extension must be for a period not longer than 7 days.

43 Removal order to conduct assessment (1) This section applies if the ACAT makes— (a) an assessment order in relation to a person under section 37 (1) (a), (b) or (c) who— (i) has not been served with a subpoena under the ACT Civil and Administrative Tribunal Act 2008, section 41 (Powers in relation to witnesses etc) for a reason stated in section 192 (3) (Subpoena to appear in person); or (ii) does not appear at a proceeding in relation to the order under a subpoena given under the ACT Civil and Administrative Tribunal Act 2008, section 41; or (iii) does not comply with the assessment order; or (b) an assessment order in relation to a person under section 37 (1) (d) or (e); or (c) an emergency assessment order in relation to a person.

(2) The ACAT may order (a removal order) the removal of the person to an approved mental health facility to conduct the assessment if satisfied that— (a) the person has been made aware of the assessment order (unless the assessment order is an emergency assessment order); and (i) if the person does not comply with the assessment order— the person does not have a reasonable excuse for failing to comply with the order; or (ii) in any other case—the ACAT is satisfied that it is appropriate in the circumstances. (3) The removal order must state— (a) the day (not later than 1 month after the day the order is made) when the order stops having effect; and (b) the mental health facility to which the person is to be removed; and (c) the nature of the assessment to be conducted in relation to the (4) A removal order authorises— (a) the apprehension of the person named in the order; and (b) the removal of the person to the mental health facility stated in the order.

44 Executing removal order (1) A removal order made under section 43 (2) in relation to a person may be executed by a police officer, authorised ambulance paramedic, doctor or mental health officer.

(2) The person executing the order must, before removing the person, explain to the person the purpose of the order.

45 Contact with others (1) This section applies if a person is admitted to a mental health facility under an assessment order. (2) The person in charge of the mental health facility must, as soon as practicable after admitting the person to the facility, tell the public advocate in writing that the person has been admitted. (3) The person in charge of the mental health facility must ensure that, while at the facility, the person has access to facilities, and adequate opportunity, to contact each of the following: (a) a relative or friend; (c) a lawyer; (d) if the person has a nominated person—the nominated person.

46 Public advocate and lawyer to have access (1) This section applies if a person is admitted to a mental health facility under an assessment order. (2) The public advocate and the person’s lawyer are entitled to have access to the person at any time. (3) The person in charge of the mental health facility must, if asked by the public advocate or the person’s lawyer, give the reasonable assistance necessary to allow the public advocate or lawyer to have access to the person.

47 Person to be assessed to be told about order (1) This section applies if an assessment is to be conducted at an approved mental health facility or other place under an assessment (2) The person in charge of the approved mental health facility or other place must, before the assessment is conducted, ensure that the person to be assessed is told about the assessment order, including the process of assessment and possible outcomes of an assessment, in a way that the person is most likely to understand. (3) This section applies even if the person to be assessed was present when the order was made.

48 Copy of assessment (1) This section applies if an assessment is conducted at a mental health facility or other place under an assessment order. (2) The person in charge of the mental health facility or other place must, as soon as practicable, but not later than 7 days after completing the assessment— (a) give a copy of the assessment to— (i) the person assessed; and (ii) the ACAT; and (iii) the public advocate; and (iv) if the person is a child—each person with parental and (v) if the person was assessed as a result of an application under section 35 (Applications by referring officers— assessment order)—the referring officer; and

(b) tell the following people in writing about the outcome of the assessment: Act 2006—the attorney.

49 Notice of outcome of assessment (1) This section applies if an assessment is conducted as a result of an application under section 34 (Applications by other people— assessment order) or section 35 (Applications by referring officers— assessment order). (2) The ACAT must, as soon as practicable after it is given a copy of the assessment under section 48 (2), give written notice to the applicant or the referring officer of any recommendations made by the assessment. (3) An applicant or referring officer who receives notice under subsection (2) may, within 48 hours of receiving the notice, give the following to the ACAT: (a) further information about the person’s mental disorder or mental illness; (b) concerns about the implications for the person or for other people of not considering a mental health order in relation to the (4) In deciding whether to hold a hearing to consider making a mental health order in relation to a person, the ACAT must take into account the information provided under subsection (3).

Preliminary Part 5.1

Part 5.1 Preliminary

50 Definitions—ch 5 relevant official, for a mental health order, means— (a) for a psychiatric treatment order—the chief psychiatrist; or (b) for a community care order—the care coordinator. relevant person, for a mental health order application, means— (a) for a psychiatric treatment order—the chief psychiatrist or another person nominated by the chief psychiatrist; and (b) for a community care order—a person who can make the statement required under section 51 (3) (a) for the application.

Part 5.2 Applications for mental health orders Part 5.2 Applications for mental health 51 Applications for mental health orders (1) This section applies if a relevant person believes on reasonable grounds that a person (the subject person) is a person in relation to whom the ACAT could reasonably make an order under section 58 (Psychiatric treatment order) or section 66 (Community care order). (2) The relevant person may apply to the ACAT for a mental health order in relation to the subject person. Note 1 An application is not required in relation to a person who has been assessed under an assessment order as having a mental disorder or mental illness (see s 58 and s 66). Note 2 Requirements for applications to the ACAT are set out in the ACT Civil (3) The application must include— (a) a written statement by the relevant person addressing the criteria the ACAT must consider in making an order under section 58 (Psychiatric treatment order) or section 66 (Community care order); and (b) a plan setting out the proposed treatment, care or support of the subject person.

52 Applicant to tell ACAT of risks (a) a person (the applicant) applies under section 51 for a mental health order in relation to someone else (the subject person); and (b) the applicant believes on reasonable grounds that anything to do with the application process is likely to substantially increase— (i) the risk to the subject person’s health or safety; or

Applications for mental health orders Part 5.2 (a) the applicant’s belief about the substantially increased risk; and

Part 5.3 Making of mental health orders— preliminary matters

53 ACAT must consider assessment—mental health order (1) Before making a mental health order in relation to a person, the ACAT must consider— (a) an assessment of the person conducted under an assessment (b) another assessment of the person that the ACAT considers (2) In considering an assessment, the ACAT must take into account how recently the assessment was conducted. (3) The ACAT may consider making a mental health order even if an assessment recommends that the ACAT not consider making a mental health order.

54 Consultation by ACAT—mental health order (1) Before making a mental health order in relation to a person, the ACAT must, as far as practicable, consult— and

Making of mental health orders—preliminary matters Part 5.3 (f) if the chief psychiatrist or care-coordinator is likely to be responsible for providing the treatment, care or support proposed to be ordered—the chief psychiatrist or care-coordinator; and (g) if the person is a detainee, a person released on parole or licence, or a person serving a community-based sentence—the corrections director-general; and (h) if the person is covered by a bail order that includes a condition section 25 (4) (e) or section 25A—the director-general responsible for the supervision of the person under the Bail Act 1992; and (i) if the person is a child covered by a bail order that includes a condition that the child accept supervision under the Bail Act 1992, section 26 (2)—the CYP director-general; and (j) if the person is a young detainee or a young offender serving a community-based sentence—the CYP director-general; and (k) if an assessment order under part 4.1 (Applications for assessment orders) gave rise to the ACAT consideration of the making of the mental health order—the applicant for the assessment order. (2) Before making a mental health order in relation to a person who has a carer, the ACAT must, as far as practicable, tell the carer in writing (a) a hearing will be held in relation to making a mental health order for the person; and

(b) the carer may do either or both of the following: (i) make a submission to the ACAT in relation to making a mental health order for the person; (ii) apply to the ACAT to attend the hearing.

55 ACAT must hold hearing—mental health order Before making a mental health order in relation to a person, the ACAT must hold a hearing into the matter.

56 What ACAT must take into account—mental health order (1) In making a mental health order in relation to a person, the ACAT must take into account the following: (a) for a person the subject of an application under section 51 (Applications for mental health orders)—a plan for the proposed treatment, care or support of the person, mentioned in section 51 (3) (b); (b) whether the person consents, refuses to consent or has the decision-making capacity to consent, to a proposed course of treatment, care or support; (c) the views and wishes of the person, so far as they can be found (d) the views of the people responsible for the day-to-day care of (e) the views of the people appearing at the proceeding;

Making of mental health orders—preliminary matters Part 5.3 (f) if the proceeding is on a mental health order for which there is a registered affected person for an offence committed or alleged to have been committed by the person—any statement by the registered affected person; (g) the views of the people consulted under section 54 (Consultation by ACAT—mental health order); (h) that any restrictions placed on the person should be the minimum necessary for the safe and effective care of the person; (i) any alternative treatment, care or support available, including— (j) any relevant medical history of the person; (k) for a person required by a court to submit to the jurisdiction of (Cwlth), part 1B— (i) the nature and circumstances of the alleged offence or the offence in relation to which the person is charged; and (ii) the nature and extent of the person’s mental illness or mental disorder and the effect it is likely to have on the person’s behaviour in the future; and (iii) whether, if the person is not detained— (B) the person is likely to do serious harm to others;

(l) if the proceeding is on a mental health order for which there is a registered affected person for the offence committed or alleged to have been committed by the person—the views of the victims of crime commissioner; (m) anything else prescribed by regulation. (2) Before the ACAT makes a mental health order for the provision of particular treatment, care or support at a stated facility or by a stated person, the ACAT must be satisfied that the treatment, care or support can be provided at the stated facility or by the stated person. (3) The ACAT may ask the relevant person to provide information on the options that the relevant person considers are appropriate for the provision of particular treatment, care or support under the proposed mental health order. (4) The relevant person must respond to the ACAT within 7 days after receiving a request under subsection (3), or any longer time allowed

57 ACAT must not order particular treatment, care or support—mental health order In making a mental health order in relation to a person, the ACAT must not order a particular form of treatment, care or support.

58 Psychiatric treatment order (a) a person assessed under an assessment order; or (b) a person in relation to whom an application for a mental health order has been made under part 5.2; or (c) a person in relation to whom an application for a forensic mental health order has been made under division 7.1.2; or (d) a person required by a court to submit to the jurisdiction of the (2) The ACAT may make a psychiatric treatment order in relation to the person if— (i) the person does not have decision-making capacity to consent to the treatment, care or support and refuses to receive the treatment, care or support; or (ii) the person has decision-making capacity to consent to the treatment, care or support, but refuses to consent; and mental illness, the person—

(d) in relation to a person mentioned in paragraph (b) (ii)—the ACAT is satisfied that the harm or deterioration, or likely harm or deterioration, mentioned in paragraph (c) is of such a serious nature that it outweighs the person’s right to refuse to consent; and (e) the ACAT is satisfied that psychiatric treatment, care or support is likely to— (i) reduce the harm or deterioration, or the likelihood of the harm or deterioration, mentioned in paragraph (c); or (ii) result in an improvement in the person’s psychiatric condition; and (f) if an application has been made for a forensic mental health order—the ACAT is satisfied that a psychiatric treatment order should be made instead; and (g) the ACAT is satisfied that the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less

59 Content of psychiatric treatment order (1) A psychiatric treatment order made in relation to a person may state 1 or more of the following: (a) an approved mental health facility to which the person may be admitted; (b) that the person must do either or both of the following: (i) undergo psychiatric treatment, other than electroconvulsive therapy or psychiatric surgery; (ii) undertake a counselling, training, therapeutic or rehabilitation program;

(c) that limits may be imposed on communication between the person and other people. (2) A psychiatric treatment order made in relation to a person must— under section 62 (Role of chief psychiatrist—psychiatric treatment order); and criteria under section 58 (2) (Psychiatric treatment order). (3) A psychiatric treatment order must not include any requirement mentioned in section 61 (1) (Content of restriction order made with psychiatric treatment order).

60 Criteria for making restriction order with psychiatric In addition to making a psychiatric treatment order in relation to a person, the ACAT may make a restriction order in relation to the person if it believes on reasonable grounds that— (a) it is in the interests of the person’s health or safety or the safety of someone else or the public to do so; and (b) the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.

61 Content of restriction order made with psychiatric (1) A restriction order made under section 60 in relation to a person may state either or both of the following: (a) that the person must— (i) live (but not be detained) at a stated place; or (ii) be detained at a stated place; (b) that the person must not approach a stated person or stated place (2) A restriction order does not prevent the chief psychiatrist from granting leave to a person detained at a stated place.

62 Role of chief psychiatrist—psychiatric treatment order (1) The chief psychiatrist is responsible for the treatment, care or support of a person to whom a psychiatric treatment order applies. (2) Within 5 working days after the day the order is made, the chief psychiatrist must determine, in writing— (a) whether the person requires admission to an approved mental health facility to receive treatment, care or support under the order and, if so, whether the person can be given leave from the facility; and (b) for a person living in the community—the times when and the place where the person is required to attend to receive treatment, care or support, in accordance with the order; and (c) the nature of the psychiatric treatment to be given to the person.

(3) If the chief psychiatrist forms a belief on reasonable grounds that a person subject to a psychiatric treatment order who is living in the community requires admission to an approved mental health facility to receive treatment, care or support under the order, the chief psychiatrist may determine, in writing— (a) the approved mental health facility that the person is to be admitted to; and (b) the nature of the psychiatric treatment to be given to the person; and (c) whether the person can be given leave from the facility. (4) For subsection (2) (c) or (3) (b), the chief psychiatrist must not determine treatment that has, or is likely to have, the effect of subjecting the person to whom it is given to undue stress or deprivation, having regard to the benefit likely to result from the treatment. (5) Before making a determination in relation to a person, the chief psychiatrist must— (a) take all reasonable steps to consult the following: (v) if the person has a carer—the carer; (vi) if the person has a nominated person—the nominated

(vii) if a health attorney is involved in the treatment, care or (viii) if the person is a detainee, a person released on parole or (ix) if the person is covered by a bail order that includes a (x) if the person is a child covered by a bail order that includes (xi) if the person is a young detainee or a young offender (b) take into account the views of the people consulted under this section. (6) After making a determination in relation to a person, the chief psychiatrist must record whether the person was consulted and— (7) The chief psychiatrist must, as soon as practicable after making a (b) if the person is a child—each person with parental responsibility (c) the ACAT; and

(d) the public advocate; and (g) if the person has a nominated person—the nominated person; and (h) if a health attorney is involved in the treatment, care or support

63 Treatment etc to be explained—psychiatric treatment (1) Before treatment, care or support is given to a person under a psychiatric treatment order, the chief psychiatrist must explain to the person, the nature and effects (including any side effects) of the

64 Action if psychiatric treatment order no longer (a) a psychiatric treatment order is in force in relation to a person; and (b) the chief psychiatrist is satisfied that— (i) the person is no longer a person in relation to whom the ACAT could make a psychiatric treatment order; or

(ii) if a restriction order is also in force in relation to the person—it is no longer necessary for the restriction order to be in force. Note 1 For the criteria for making a psychiatric treatment order, see s 58. For the criteria for making a restriction order with a psychiatric treatment order, see s 60. (2) The chief psychiatrist must take all reasonable steps to give notice to— (a) if the person has a carer—the carer; and (b) if the person has a nominated person—the nominated person. (b) ask whether the carer or nominated person is aware of any other information that may be relevant to whether the psychiatric treatment order or restriction order continues to be appropriate for the person; and subsection (1) (b) and the ACAT must review the psychiatric treatment order or restriction order; and (i) make a submission to the ACAT review of the psychiatric treatment order or restriction order;

(e) tell the nominated person that the nominated person is entitled to make a submission to the ACAT review of the psychiatric treatment order or restriction order. (4) If, having taken into account any information given under subsection (3) (b), the chief psychiatrist is still satisfied of the matter mentioned in subsection (1) (b), the chief psychiatrist must tell the ACAT and the public advocate in writing about— under this section (see s 79 (3)).

65 Powers in relation to psychiatric treatment order (1) This section applies if a psychiatric treatment order has been made in relation to a person and— (a) a restriction order has also been made in relation to the person requiring the person to be detained at a stated place; or (b) the chief psychiatrist makes a determination under section 62 (Role of chief psychiatrist—psychiatric treatment order) requiring the person to be admitted to an approved mental health facility; or (c) the person is detained at an approved mental health facility under section 77 (Contravention of mental health order). (2) The chief psychiatrist may— (a) detain the person at an approved mental health facility; and Note See s 264 (Powers of search and seizure).

and (d) determine that the person can be given leave from the facility. (3) If the chief psychiatrist subjects a person to involuntary seclusion, the chief psychiatrist must ensure that the person is examined by a relevant doctor of the relevant place at least once in each 4-hour period for which the person is in seclusion. (4) If the chief psychiatrist determines that a person be given medication for the treatment of the person’s mental illness, the chief psychiatrist may— medication prescribed by a doctor in accordance with the chief psychiatrist’s determination; and

(5) If the chief psychiatrist subjects a person to restraint, involuntary seclusion or forcible giving of medication, the chief psychiatrist and relevant doctor, of a relevant place, means a person employed at the place as a consultant psychiatrist, psychiatric registrar in consultation with a consultant psychiatrist or another doctor in consultation with a consultant psychiatrist.

66 Community care order (a) a person assessed under an assessment order; or (b) a person in relation to whom an application for a mental health order has been made under part 5.2; or (c) a person in relation to whom an application for a forensic mental health order has been made under division 7.1.2; or (d) a person required by a court to submit to the jurisdiction of the (2) The ACAT may make a community care order in relation to the person if— (a) the person has a mental disorder; and (i) the person does not have decision-making capacity to consent to the treatment, care or support and refuses to receive the treatment, care or support; or (ii) the person has decision-making capacity to consent to the treatment, care or support, but refuses to consent; and mental disorder, the person—

(d) in relation to a person mentioned in paragraph (b) (ii)—the ACAT is satisfied that the harm or deterioration, or likely harm or deterioration, mentioned in paragraph (c) is of such a serious nature that it outweighs the person’s right to refuse to consent; and (e) the ACAT is satisfied that treatment, care or support is likely to reduce the harm or deterioration, or likelihood of harm or deterioration, mentioned in paragraph (c); and (f) the ACAT is satisfied that, in the circumstances, a psychiatric treatment order should not be made; and (g) if an application has been made for a forensic mental health order—the ACAT is satisfied that a community care order should be made instead; and (h) the ACAT is satisfied that the treatment, care or support to be provided under the community care order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.

67 Content of community care order (1) A community care order made in relation to a person may state 1 or more of the following: (a) that the person is to be given treatment, care or support; (b) that the person may be given medication for the treatment of the person’s mental disorder that is prescribed by a doctor; (c) that the person is to undertake a counselling, training, therapeutic or rehabilitation program; (d) that limits may be imposed on communication between the person and other people.

(2) A community care order may not include any requirement mentioned in section 69 (Content of restriction order made with community care order etc). (3) A community care order made in relation to a person must— under section 70 (Role of care coordinator—community care order); and criteria under section 66 (2) (Community care order).

68 Criteria for making restriction order with community care In addition to making a community care order in relation to a person, the ACAT may make a restriction order in relation to the person if it believes on reasonable grounds that— (a) it is in the interests of the person’s health or safety or the safety of someone else or the public to do so; and (b) the treatment, care or support to be provided under the community care order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.

69 Content of restriction order made with community care order etc (1) A restriction order made under section 68 in relation to a person may state either or both of the following: (a) that the person must— (i) live (but not be detained) at a stated approved community care facility or another stated place; or (ii) be detained at a stated approved community care facility;

(b) that the person must not approach a stated person or stated place (2) If the restriction order states that the person must be detained at a stated approved community care facility, the order may also state whether the person may be granted leave from the facility. (3) The ACAT may, on application, grant leave to a person detained at a stated approved community care facility (whether or not the order includes a statement about leave).

70 Role of care coordinator—community care order (1) The care coordinator is responsible for coordinating the provision of treatment, care or support for a person to whom a community care order applies. (2) Within 5 working days after the day the order is made, the care coordinator must determine, in writing, the times when and the place where the person is required to attend to receive treatment, care or support, or undertake a counselling, training, therapeutic or rehabilitation program, in accordance with the order. (3) Before making a determination in relation to a person, the care coordinator— (a) must take all reasonable steps to consult the following: (v) if the person has a carer—the carer;

(vi) if the person has a nominated person—the nominated (vii) if a health attorney is involved in the treatment, care or (viii) if the person is a detainee, a person released on parole or (ix) if the person is covered by a bail order that includes a Act 1992, section 25 (4) (e) or section 25A—the director- general responsible for the supervision of the person under the Bail Act 1992; (x) if the person is a child covered by a bail order that includes (xi) if the person is a young detainee or a young offender (b) may consult any other service provider the care coordinator considers relevant; and (c) must take into account the views of the people consulted under this section. (4) After making a determination in relation to a person, the care coordinator must record whether the person was consulted and— (5) The care coordinator must, as soon as practicable after making a

(b) if the person is a child—each person with parental responsibility (c) the ACAT; and (d) the public advocate; and (g) if the person has a nominated person—the nominated person; and (h) if a health attorney is involved in the treatment, care or support

71 Treatment etc to be explained—community care order (1) Before treatment, care or support is given to a person under a community care order, the care coordinator must ensure that the nature and effects (including any side effects) of the treatment, care or support are explained to the person.

72 Action if community care order no longer appropriate— no longer person in relation to whom ACAT could make (a) a community care order is in force in relation to a person; and (b) the care coordinator forms the opinion that— (i) the person is no longer a person in relation to whom the ACAT could make a community care order; or (ii) if a restriction order is also in force in relation to the person—it is no longer necessary for the restriction order to be in force. Note 1 For the criteria for making a community care order, see s 66. For the criteria for making a restriction order with a community care order, see s 68. (2) The care coordinator must give written notice to— (a) if the person has a carer—the carer; and (b) if the person has a nominated person—the nominated person. (b) ask whether the carer or nominated person is aware of any other information that may be relevant to whether the community care order or restriction order continues to be appropriate for the

community care order or restriction order; and (i) make a submission to the ACAT review of the community care order or restriction order; (e) tell the nominated person that the nominated person is entitled to make a submission to the ACAT review of the community care order or restriction order. mentioned in subsection (1) (b) the care coordinator must tell the under this section (see s 79 (3)).

73 Powers in relation to community care order (a) a community care order has been made in relation to a person; and (i) a restriction order has also been made in relation to the person requiring the person to be detained at an approved community care facility; or (ii) the care coordinator requires the person to be detained at an approved community care facility under section 77 (Contravention of mental health order). (2) The care coordinator may— (a) detain the person at the facility in the custody that the care coordinator considers appropriate; and Note See s 264 (Powers of search and seizure). and causing harm to themself or someone else.

(3) If the care coordinator subjects a person to involuntary seclusion, the care coordinator must ensure that the person is examined by a relevant doctor of the approved community care facility at least once in each 4-hour period for which the person is in seclusion. (4) If a community care order made in relation to a person authorises the giving of medication for the treatment of the person’s mental disorder, the care coordinator may— medication prescribed by a doctor in accordance with the order; and (5) If the care coordinator subjects a person to restraint, involuntary seclusion or the forcible giving of medication, the care coordinator (a) enter in the person’s record the fact of and reasons for the and relevant doctor, of an approved community care facility, means a person employed at the facility as a consultant psychiatrist, psychiatric registrar in consultation with a consultant psychiatrist or another doctor in consultation with a consultant psychiatrist.

Part 5.6 Limits on communication under mental health orders Part 5.6 Limits on communication under mental health orders 74 Limits on communication—mental health order (a) a mental health order is made in relation to a person; and (b) the order states that a limit may be imposed on communication between the person and other people. (2) The relevant official for the order may impose a limit on communication by the person with other people if— (a) the limit is consistent with the order; and (b) the relevant official believes on reasonable grounds that the limit is necessary and reasonable to avoid prejudicing the effectiveness of the person’s treatment, care or support. (3) The relevant official must not impose a limit on communication by the person with someone authorised under a territory law to communicate with the person. (4) As soon as practicable after imposing a limit on communication by a person, the relevant official must explain to the person, in a way the person is most likely to understand— (a) the nature of the limit; and (b) the period for which the limit will be in effect; and (c) the reason for imposing the limit. (5) A limit must not be imposed for a period longer than 7 days. (6) Subsection (5) does not prevent a further limit being imposed immediately after the limit previously imposed ceases to be in effect. (7) This section has effect despite part 3.1 (Rights in relation to information and communication) but subject to section 75.

Limits on communication under mental health orders Part 5.6

75 Offence—limits on communication—mental health order (1) A relevant official commits an offence if— person subject to a mental health order; and (b) the relevant official does not ensure that the person has reasonable access to facilities and adequate opportunity to contact the public advocate and the person’s lawyer. (2) A relevant official commits an offence if— person subject to a mental health order; and (b) the public advocate or the person’s lawyer asks the relevant official to give any reasonable assistance necessary to allow the public advocate or lawyer to have access to the person; and (c) the relevant official does not ensure that the assistance is given.

Part 5.7 Duration, contravention and review of mental health orders

76 Duration of mental health orders Unless sooner revoked— (a) a psychiatric treatment order or community care order has effect for— (i) 6 months; or (ii) if a shorter period is stated in the order—the shorter period; and (b) a restriction order has effect for— (i) 3 months; or (ii) if a shorter period is stated in the order—the shorter period.

77 Contravention of mental health order (a) a mental health order is in force in relation to a person; and (b) the person contravenes the order; and (c) section 78 (Contravention of mental health order—absconding from facility) does not apply to the contravention. Examples—contravention 1 failure to return from leave granted by chief psychiatrist 2 not attending mental health facility for treatment, care or support (2) The relevant official for the order or a mental health officer may take action to tell the person that failure to comply with the order may result in the person being apprehended and taken to an approved mental health facility or approved community care facility for

(3) Action under subsection (2) must— (a) be taken within 7 days of the contravention; and (b) involve the taking of all reasonable steps to tell the person the information mentioned in subsection (2). (4) If the noncompliance continues after the taking of action under subsection (2), the relevant official or mental health officer may require the person to be detained at an approved mental health facility or approved community care facility to ensure compliance with the Note The chief psychiatrist may make a determination requiring a person to be taken to a place for treatment, care or support (see s 62 (Role of chief psychiatrist—psychiatric treatment order)). (5) A person is taken to have complied with an order after the relevant official or mental health officer has taken action under subsection (2) if— (a) the person consents to receiving treatment at a place other than an approved mental health facility or approved community care facility (a facility); and (b) the relevant official or mental health officer is satisfied that— (i) the person can be appropriately treated at a place other than a facility; and (ii) the other place is a suitable place for the treatment. Example—other place the person’s home (6) If a person is required to be detained under subsection (4), a police officer, authorised ambulance paramedic, mental health officer or doctor may apprehend the person and take the person to an approved mental health facility or approved community care facility.

(7) If the relevant official or mental health officer requires the detention of a person under subsection (4), the relevant official or the mental health officer must, within 24 hours of the person being detained, tell the ACAT and the public advocate in writing— (b) the reasons for requiring the detention; and (c) the name and address of the approved mental health facility or approved community care facility where the person is detained; and (d) if the mental health order includes a restriction order that restricts the place where a person must live—whether the restriction order has been contravened. under this subsection (see s 79 (3)).

78 Contravention of mental health order—absconding from (a) a mental health order is in force in relation to a person; and (b) a restriction order or a determination requires the person to be detained at an approved mental health facility or approved community care facility; and (c) the person absconds from the facility. (2) A police officer, authorised ambulance paramedic, mental health officer or doctor may apprehend the person and take the person to an approved mental health facility or approved community care facility.

(3) A police officer, authorised ambulance paramedic, mental health officer or doctor who apprehends a person under this section must tell the person the reason for the apprehension. (4) If a person is detained under this section the relevant official for the order must, within 12 hours of the person being detained, tell the ACAT and the public advocate in writing— (b) the reasons for requiring the detention; and (c) the name and address of the approved mental health facility or approved community care facility where the person is detained. under this subsection (see s 79 (3)).

79 Review of mental health order (1) The ACAT may review a mental health order in force in relation to a person on its own initiative. (2) The ACAT must review a mental health order in force in relation to a person if the person, or the person’s representative, applies for the review on the basis that the order, or part of the order, is no longer required. (3) The ACAT must review each mental health order in force in relation to a person within 72 hours if the ACAT receives notice in relation to the person under any of the following: (a) section 64 (Action if psychiatric treatment order no longer

(b) section 72 (Action if community care order no longer (c) section 77 (6) (Contravention of mental health order) and the notice indicates that a restriction order has been contravened; (d) section 78 (4) (Contravention of mental health order— absconding from facility). (4) A review required under subsection (3)— (a) may be conducted without a hearing; and (b) may include consulting a person mentioned in section 54 (1) (Consultation by ACAT—mental health order). (5) If the ACAT is satisfied that a person in relation to whom a psychiatric treatment order or community care order is in force is no psychiatric treatment order or community care order, the ACAT must revoke all the mental health orders in force in relation to the person. (6) In any other case, the ACAT may, if appropriate, do any of the (a) confirm, amend or revoke any of the mental health orders in force in relation to the person; (b) make additional mental health orders in relation to the person; (c) make an assessment order in relation to the person.

representative, of a person, means any of the following: (d) a close relative or close friend of the person; (e) a legal representative of the person.

80 Apprehension (1) A police officer or authorised ambulance paramedic may apprehend a person if the police officer or paramedic believes on reasonable (a) the person has a mental disorder or mental illness; and (b) the person has attempted or is likely to attempt— (i) suicide; or (ii) to inflict serious harm on the person or another person; and (c) the person— (i) requires an immediate examination by a doctor; and (ii) does not agree to be examined immediately. (2) In forming a belief about a person for subsection (1), a police officer or authorised ambulance paramedic is not required to make a medical assessment or clinical judgment about the person. (3) A person apprehended under subsection (1) may be taken to an approved mental health facility by— (a) the police officer or authorised ambulance paramedic who apprehended the person; or (b) at the request of the police officer or authorised ambulance paramedic who apprehended the person—another police officer or authorised ambulance paramedic.

(4) A doctor or mental health officer may apprehend a person if the doctor or mental health officer believes on reasonable grounds that— (a) the person has a mental disorder or mental illness; and (i) the person requires immediate treatment, care or support; or (ii) the person’s condition will deteriorate within 3 days to such an extent that the person would require immediate (c) the person has refused to receive that treatment, care or support; and (d) detention is necessary for the person’s health or safety, social or financial wellbeing, or for the protection of someone else or the public; and (e) adequate treatment, care or support cannot be provided in a less restrictive environment. (5) A person apprehended under subsection (4) may be taken to an approved mental health facility by— (a) the doctor or mental health officer who apprehended the person; or (b) at the request of the doctor or mental health officer who apprehended the person— (i) another doctor or mental health officer; or (ii) a police officer; or (iii) an authorised ambulance paramedic.

(6) The ACAT must, on application, review the following decisions within 2 working days after the day the application is made: (a) a decision of a police officer or authorised ambulance paramedic under subsection (1); (b) a decision of a doctor or mental health officer under subsection (4) (b) (ii).

81 Detention at approved mental health facility (1) If a person is taken to an approved mental health facility under section 80 or the Crimes Act, section 309 (1) (a) (Assessment whether emergency detention required), the person in charge of the facility must detain the person at the facility. (2) If a doctor or mental health officer believes on reasonable grounds that a person attending an approved mental health facility (voluntarily or otherwise) is a person to whom section 80 (4) (a) to (e) applies, the doctor or mental health officer may detain the person at the facility. (3) While a person is detained at a facility under subsection (1) or (2), the person in charge of the facility may— (a) keep the person in the custody that the person in charge considers appropriate; and (ii) ensure that the person remains in custody.

82 Copy of court order A police officer or corrections officer who takes an accused person to an approved mental health facility for examination under the Crimes Act, section 309 (1) (a) must give the person in charge of the facility a copy of the court order made under that section.

83 Statement of action taken (1) A police officer, authorised ambulance paramedic, doctor or mental health officer who takes a person to an approved mental health facility under section 80 must give the person in charge of the facility a written statement containing a description of the action taken under that section, including the following: (a) the name and address (if known) of the person taken to the (b) the date and time when the person was taken to the facility; (c) detailed reasons for taking the action; (d) the nature and extent of the force or assistance used to enter any premises, or to apprehend the person and take the person to the (e) the nature and extent of any restraint, involuntary seclusion or forcible giving of medication used when apprehending the person or taking the person to the facility; (f) anything else that happened when the person was being apprehended and taken to the facility that may have an effect on the person’s physical or mental health. Examples—par (f) 1 the person was subject to threats of violence from another person

(2) The person in charge of the approved mental health facility must— (b) tell the public advocate in writing of any restraint, involuntary statement; and (c) keep a register of any restraint, involuntary seclusion or forcible giving of medication included in the statement.

84 Initial examination at approved mental health facility (1) This section applies to a person (the subject person) detained at an approved mental health facility under section 81. (2) The person in charge of the approved mental health facility must ensure that a relevant doctor conducts an initial examination of the subject person within 4 hours after— (a) for a person detained under section 81 (1)—arriving at the facility; or (b) for a person detained under section 81 (2)—being detained at the facility. (3) However, the person in charge of the facility may continue to detain the subject person if the person believes on reasonable grounds that, if the subject person is released without an initial examination— (a) the subject person’s health or safety would be, or be likely to be, (b) the subject person would do, or be likely to do, serious harm to others; or (c) the subject person would seriously endanger, or be likely to seriously endanger, public safety.

(4) If the subject person continues to be detained under subsection (3)— (a) the person in charge of the approved mental health facility must immediately tell the chief psychiatrist that the subject person has been at the facility for 4 hours without an initial examination; and (b) the chief psychiatrist must arrange for an initial examination of the subject person to be conducted as soon as possible and within 2 hours of being told about the detention. (5) If the subject person is not given an initial examination within the time required under subsection (4) (b), the person in charge of the approved mental health facility must— (a) release the subject person; or (b) if the subject person was taken to the approved mental health facility under the Crimes Act, section 309 (1) (a) (Assessment whether emergency detention required)—release the person into the custody of a police officer; or (c) if a court order requires the subject person to be detained at a correctional centre—release the subject person into the custody of the corrections director-general; or (d) if a court order requires the subject person to be detained at a detention place—release the subject person into the custody of the CYP director-general. (6) The person in charge of the approved mental health facility must tell the public advocate, in writing, about any failure to give a subject person an initial examination within the time required under subsection (2) or (4) (b) and the reasons for the failure.

initial examination means— (a) examining the subject person in person; and (b) considering the observations arising from the examination; and (c) considering any other reliable and relevant information about the subject person’s condition. relevant doctor, of an approved mental health facility, means a person employed at the facility as a consultant psychiatrist, a psychiatric registrar in consultation with a consultant psychiatrist or another doctor in consultation with a consultant psychiatrist.

85 Authorisation of involuntary detention (1) A doctor may authorise the involuntary detention and treatment, care or support of a person at an approved mental health facility for a period not exceeding 3 days if— (a) the doctor has conducted an initial examination of the person under section 84 and, on the basis of that examination and any other information the doctor is given, has reasonable grounds for believing that— (i) the person requires immediate treatment, care or support; and (ii) the person has refused to receive that treatment, care or support; and (iii) detention is necessary for the person’s health or safety, social or financial wellbeing, or for the protection of someone else or the public; and (iv) adequate treatment, care or support cannot be provided in a less restrictive environment; and

(b) another doctor has also examined the person and, on the basis of that examination and any other information the doctor is given, also has reasonable grounds for believing the matters mentioned in paragraph (a) (i) to (iv). (2) Before the end of the 3-day period of detention, the chief psychiatrist may apply to the ACAT to extend the period of detention if the chief psychiatrist believes on reasonable grounds that the person continues to meet the criteria mentioned in subsection (1) (a) (i) to (iv). (3) If an application is made under subsection (2), the ACAT may order that the period of detention be extended by the period, not longer than 11 days, stated in the order. (4) A person may apply to the ACAT for the review of involuntary detention under this section. (5) If an application is made under subsection (4), the ACAT must conduct the review within 2 working days after the day the application is made. (6) The ACAT may consider an application under subsection (2) or (4) without holding a hearing. Note If the ACAT holds a hearing for the application, s 188 (1) (Notice of hearing) does not apply (see s 188 (3)).

86 Medical examination of detained person (1) The person in charge of an approved mental health facility must ensure that a person detained at the facility under section 85 (1) is given— (a) a thorough physical examination by a doctor; and (b) a thorough psychiatric examination by a person employed at the facility as a consultant psychiatrist, a psychiatric registrar in consultation with a consultant psychiatrist or another doctor in consultation with a consultant psychiatrist.

(2) The examination must, as far as reasonably practicable, be conducted within 24 hours of the person being detained at the mental health (3) The examination must not be conducted by a doctor who conducted the initial examination of the person under section 84. (4) However, a thorough examination mentioned in subsection (1) (a) or (b) is not required if the chief psychiatrist is satisfied on reasonable (a) a doctor or psychiatrist recently gave the person such an examination; and (b) the examination provides sufficient relevant information about the current physical or psychiatric condition of the person.

87 Notification of Magistrates Court about emergency detention or release from emergency detention (1) The person in charge of an approved mental health facility must— (a) notify the Magistrates Court of the results of an examination conducted by a doctor under an order under the Crimes Act, section 309 (1); and (b) if, after examination by the doctor— (i) the person is to be detained for treatment, care or support— ensure that the person is detained for the purposes of receiving that treatment, care or support; or (ii) the person is not to be detained for treatment, care or support, or is to be released after being detained—release the person into the custody of a police officer. (2) If the person is detained at the facility under section 81 or section 85, the person in charge of the facility must notify the court of the reasons for the detention.

88 Treatment during detention (1) While a person is detained at a mental health facility under section 85, the person in charge of the facility— (a) may keep the person in the custody that the person in charge considers appropriate; and (b) may subject the person to the minimum confinement or restraint that is necessary and reasonable to— (ii) ensure that the person remains in custody; and (c) may subject the person to involuntary seclusion if satisfied that it is the only way in the circumstances to prevent the person from (d) must ensure that any treatment, care or support administered to the person is the minimum necessary to prevent any immediate and substantial risk of the person detained causing harm to themself or someone else. Note Special provisions apply for the emergency administration of electroconvulsive therapy (see s 160). (2) Subsection (1) (c) does not apply if a person has a mental illness for which, in the opinion of a psychiatrist, the most appropriate treatment is long acting medication. (3) In deciding whether to administer long acting medication, the psychiatrist must take into account the likely deterioration in the person’s condition within 3 days after the psychiatrist’s examination of the person.

(4) If a doctor believes on reasonable grounds that the detained person should be given medication for the treatment of the person’s mental disorder or mental illness, the doctor may— medication prescribed by or under the authority of the doctor; and (5) If the detained person is subjected to confinement, restraint, involuntary seclusion or forcible giving of medication, the person in charge of the facility must— (a) enter in the detained person’s record the fact of and the reasons for the confinement, restraint, involuntary seclusion or forcible giving of medication; and

89 Notification of certain people about detention (1) A doctor must, within 12 hours after authorising the involuntary detention of a person under section 85, give the required information about the detention to the public advocate and the ACAT. Maximum penalty: 5 penalty units.

(2) A doctor or mental health officer must also, as soon as practicable after authorising the involuntary detention of a person under section 81 or section 85, take all reasonable steps to give the required information about the detention to the following: Maximum penalty: 5 penalty units. (3) The ACAT must, as soon as practicable after ordering under section 85 (3) that a period of detention be extended, take all reasonable steps to give the required information about the detention to the people mentioned in subsection (2) (a) to (e). (4) Subsection (5) applies if, despite the doctor, mental health officer or ACAT taking all reasonable steps to give the required information about the detention under subsection (2) or (3), any of the following circumstances happens: (a) the required information is not given to anyone; (b) the detained person is a child and the required information is not given to a person with parental responsibility for the child; (c) the detained person is an adult who has a guardian under the Guardianship and Management of Property Act 1991 and the required information is not given to the guardian;

(d) the detained person has an enduring power of attorney under the Powers of Attorney Act 2006, and appears to have impaired decision-making capacity within the meaning of that Act, and the required information is not given to the attorney. (5) The doctor, mental health officer or ACAT must tell the public advocate— (a) of the circumstance mentioned in subsection (4); and (b) for subsection (4) (b), (c) or (d)—who (if anyone) the required information about the detention was given to. (6) The person in charge of a mental health facility where a person is detained under section 81 or section 85 must ensure that the person has adequate opportunity and assistance to notify a relative or friend of the person’s detention. required information about the detention of a person means— (a) the person’s name; and (b) the reasons for authorising the detention; and (c) the name and address of the approved mental health facility where the person is being detained.

90 Offence—communication during detention (1) A person commits an offence if— (a) the person is in charge of a mental health facility; and (b) a person (the detained person) is detained at the facility; and

(c) the person does not ensure that, during the detention, the detained person has reasonable access to facilities, and adequate opportunity, to contact the public advocate and the detained person’s lawyer. (a) the person is in charge of a mental health facility; and (b) a person (the detained person) is detained at the facility; and (c) the public advocate or the detained person’s lawyer asks the person to give any reasonable assistance necessary to allow the public advocate or lawyer to have access to the detained person; and (d) the person does not ensure that the assistance is given.

91 Order for release (1) If a relevant entity is satisfied that the detention of a person under section 85 is no longer justified, the entity must, as soon as practicable, order the release of the person before the period of detention authorised under that subsection expires. (2) However, if the person detained under section 85 is an accused person to whom an order under the Crimes Act, section 309 (1) (Assessment whether emergency detention required) applies, the relevant entity must, as soon as practicable, notify the person in charge of an approved mental health facility if satisfied that the detention of the person is no longer justified.

relevant entity means— (a) a doctor who examined the person under section 86; or (b) the chief psychiatrist; or (c) the ACAT.

92 Duty to release (1) A person in charge of an approved mental health facility must ensure that a person detained at the facility under section 85— (a) is released in accordance with an order under section 91; or (b) if no order under section 91 is made and subject to any other order of the ACAT—is released at the end of the period of detention authorised under section 85. (2) If the person in charge of an approved mental health facility is notified under section 91 (2), the person must, as soon as practicable, discharge the person to whom the notification relates into the custody of a police officer.

Preliminary Division 7.1.1

Division 7.1.1 Preliminary

93 Definitions—pt 7.1 relevant official, for a forensic mental health order, means— (a) for a forensic psychiatric treatment order—the chief psychiatrist; or (b) for a forensic community care order—the care coordinator. relevant person, for a forensic mental health order application means— (a) for a forensic psychiatric treatment order—the chief psychiatrist; and (b) for a forensic community care order—a person who can make the statement required under section 94 (3) (a) for the application. Division 7.1.2 Application for forensic mental health

94 Applications for forensic mental health orders—detainees etc (1) This section applies to any of the following (a subject person): (a) a detainee; (b) a person serving a community-based sentence; (c) a person released on parole;

Division 7.1.2 Application for forensic mental health orders (d) a person released on licence under the Crimes (Sentence Administration) Act 2005, section 299; (e) a young detainee; (f) a young offender; (g) a person covered by a bail order that includes a condition that the person accept supervision under the Bail Act 1992, section 25 (4) (e), section 25A or section 26 (2). (2) A relevant person may apply to the ACAT for a forensic mental health order in relation to a subject person if the relevant person believes on reasonable grounds that the subject person is a person in relation to whom the ACAT could reasonably make an order under section 101 (Forensic psychiatric treatment order) or section 108 (Forensic community care order). (3) The application must include— (a) a written statement by the relevant person addressing the criteria the ACAT must consider in making an order under section 101 (Forensic psychiatric treatment order) or section 108 (Forensic community care order); and (b) a plan setting out the proposed treatment, care or support of the subject person.

95 Relevant person to tell ACAT of risks (a) a relevant person applies to the ACAT for a forensic mental health order for a person; and (b) the relevant person believes on reasonable grounds that anything to do with the application process is likely to substantially increase— (i) the risk to the person’s health or safety; or

Making forensic mental health orders—preliminary matters Division 7.1.3 (a) the relevant person’s belief about the substantially increased risk; and Division 7.1.3 Making forensic mental health orders—preliminary matters

96 ACAT must consider assessment—forensic mental health (1) Before making a forensic mental health order in relation to a person, the ACAT must consider— (a) an assessment of the person conducted under an assessment (b) another assessment of the person that the ACAT considers (2) In considering an assessment, the ACAT must take into account how recently the assessment was conducted.

97 Consultation by ACAT—forensic mental health order Before making a forensic mental health order in relation to a person, the ACAT must, as far as practicable, consult—

Division 7.1.3 Making forensic mental health orders—preliminary matters and (e) if a health attorney is involved in the treatment care or support (f) if the chief psychiatrist or care-coordinator is likely to be responsible for providing the treatment, care or support proposed to be ordered—the chief psychiatrist or care-coordinator; and (g) if the person is a detainee, a person serving a community-based sentence, a person released on parole, or a person released on licence under the Crimes (Sentence Administration) Act 2005, section 299—the corrections director-general and the director-general responsible for the Crimes (Sentence Administration) Act 2005; and (h) if the person is a young detainee or a young offender serving a community-based sentence—the CYP director-general.

98 ACAT must hold hearing—forensic mental health order Before making a forensic mental health order in relation to a person, the ACAT must hold a hearing into the matter.

99 What ACAT must take into account—forensic mental (1) In making a forensic mental health order in relation to a person, the ACAT must take into account the following: (a) a plan for the proposed treatment, care or support of the person, mentioned in section 94 (3); (b) the views and wishes of the person, so far as they can be found out;

Making forensic mental health orders—preliminary matters Division 7.1.3 (c) if an advance agreement or advance consent direction is in force in relation to the person—the person’s wishes in relation to the person’s treatment, care or support stated in the agreement or direction; (d) the views of the people responsible for the day-to-day care of (e) the views of each person appearing at the proceeding; (f) if the proceeding is on a forensic mental health order for which there is a registered affected person for an offence committed or alleged to have been committed by the person—any statement by the registered affected person; (g) the views of each person consulted under section 97 (Consultation by ACAT—forensic mental health order); (h) that any restrictions placed on the person should be the minimum necessary for the safe and effective care of the person and protection of public safety; (i) any alternative treatment, care or support available, including— (j) any relevant medical history of the person; (k) for a person required by a court to submit to the jurisdiction of (Cwlth), part 1B— (i) the nature and circumstances of the alleged offence or the offence in relation to which the person is charged; and

Division 7.1.3 Making forensic mental health orders—preliminary matters (ii) the nature and extent of the person’s mental illness or mental disorder and the effect it is likely to have on the person’s behaviour in the future; and (iii) whether, if the person is not detained— (B) the person is likely to do serious harm to others; (l) if the proceeding is on a forensic mental health order for which there is a registered affected person for the offence committed or alleged to have been committed by the subject person—the views of the victims of crime commissioner; (m) anything else prescribed by regulation. (2) Before the ACAT makes a forensic mental health order for the provision of particular treatment, care or support at a stated facility or by a stated person, the ACAT must be satisfied that the treatment, care or support can be provided at the stated facility or by the stated (3) The ACAT may ask the relevant person to provide information on the options that the relevant person considers are appropriate for the provision of particular treatment, care or support under the proposed forensic mental health order. (4) The relevant person must respond to the ACAT within 7 days after receiving a request under subsection (3), or any longer time allowed

100 ACAT must not order particular treatment, care or support—forensic mental health order In making a forensic mental health order in relation to a person, the ACAT must not order a particular form of treatment, care or support.

101 Forensic psychiatric treatment order (a) a detainee or a person serving a community-based sentence assessed under an assessment order; or (b) a person referred to the ACAT for a forensic mental health order under division 7.1.2; or (c) a person required by a court to submit to the jurisdiction of the (2) The ACAT may make a forensic psychiatric treatment order in relation to the person if— (b) the ACAT believes on reasonable grounds that, because of the mental illness, the person— mental illness, the person has seriously endangered, is seriously endangering, or is likely to seriously endanger, public safety; and (d) the ACAT is satisfied that psychiatric treatment, care or support is likely to— (i) reduce the harm, deterioration or endangerment, or the likelihood of harm, deterioration or endangerment, mentioned in paragraph (b) or (c); or

(ii) result in an improvement in the person’s psychiatric condition; and (e) the ACAT is satisfied that, in the circumstances, a mental health order should not be made; and Note For the making of a mental health order see ch 5. (f) the ACAT is satisfied that the treatment, care or support to be provided under the forensic psychiatric treatment order cannot be adequately provided in another way that would involve less (3) In making a forensic psychiatric treatment order in relation to a person, the ACAT is not required to take into account the person’s decision-making capacity.

102 Content of forensic psychiatric treatment order (1) A forensic psychiatric treatment order made in relation to a person may state 1 or more of the following: (a) an approved mental health facility to which the person may be taken; (b) that the person must do either or both of the following: (i) undergo psychiatric treatment, care or support, other than electroconvulsive therapy or psychiatric surgery; (ii) undertake a counselling, training, therapeutic or rehabilitation program; (c) that limits may be imposed on communication between the person and other people; (d) that the person must— (i) live (but not be detained) at a stated place; or (ii) be detained at a stated approved mental health facility;

(e) that the person must not approach a stated person or stated place (2) A forensic psychiatric treatment order made in relation to a person under section 103 (Role of chief psychiatrist—forensic psychiatric treatment order); and criteria under section 101 (2) (Forensic psychiatric treatment

103 Role of chief psychiatrist—forensic psychiatric treatment (1) The chief psychiatrist is responsible for the treatment, care or support of a person in relation to whom a forensic psychiatric treatment order is in force. (2) Within 5 working days after the day the order is made, the chief psychiatrist must determine, in writing— (a) whether the person requires admission to an approved mental health facility to receive treatment, care or support under the order and, if so, whether the person can be given leave from the facility; and (b) for a person living in the community—the times when and the place where the person is required to attend to receive treatment, care or support, in accordance with the order; and (c) the nature of the psychiatric treatment, care or support to be given to the person.

(3) If the chief psychiatrist forms a belief on reasonable grounds that a person subject to a forensic psychiatric treatment order who is living in the community requires admission to an approved mental health facility to receive treatment, care or support under the order, the chief psychiatrist may determine, in writing— (a) the approved mental health facility that the person is to be admitted to; and (b) the nature of the psychiatric treatment to be given to the person; and (c) whether the person can be given leave from the facility. (4) For subsection (2) (b) or (3) (c), the chief psychiatrist must not determine psychiatric treatment, care or support that has, or is likely to have, the effect of subjecting the person to whom it is given to undue stress or deprivation, having regard to the benefit likely to result from the treatment, care or support. (5) The chief psychiatrist must also determine, in writing, the place where the person must live if— (a) the forensic psychiatric treatment order does not state that the person live at a stated place; and (b) the chief psychiatrist considers that the person should live at a place other than the place where the person usually lives. (6) Before making a determination in relation to a person, the chief psychiatrist must— (a) take all reasonable steps to consult the following:

(vii) if the person is a detainee, a person released on parole or (viii) if the person is covered by a bail order that includes a (ix) if the person is a child covered by a bail order that includes (x) if the person is a young detainee or a young offender (b) take into account the views of the people consulted under this section. (7) After making a determination in relation to a person, the chief psychiatrist must record whether the person was consulted and—

(8) The chief psychiatrist must, as soon as practicable after making a (a) the people mentioned in subsection (6) (a); and (b) the ACAT; and (c) the public advocate.

104 Treatment etc to be explained—forensic psychiatric (1) Before treatment, care or support is given to a person under a forensic psychiatric treatment order, the chief psychiatrist must explain to the person the nature and effects (including any side effects) of the

105 Action if forensic psychiatric treatment order no longer (a) a forensic psychiatric treatment order is in force in relation to a (b) the chief psychiatrist forms the opinion that the person is no forensic psychiatric treatment order. Note 1 For the criteria for making a forensic psychiatric treatment order, see s 101. Note 2 For principles that must be taken into account when exercising a function under this Act, see s 6.

(2) The chief psychiatrist must give written notice to the following information that may be relevant to whether the forensic psychiatric treatment order continues to be appropriate for the forensic psychiatric treatment order; and

psychiatric treatment order; submission to the ACAT review of the forensic psychiatric treatment order. subsection (3) (b), the chief psychiatrist is still satisfied of the matter mentioned in subsection (1) (b) the chief psychiatrist must tell the

106 Action if forensic psychiatric treatment order no longer appropriate—no longer necessary to detain person (a) a forensic psychiatric treatment order is in force in relation to a (b) the forensic psychiatric treatment order requires the person to be detained at an approved mental health facility; and (c) the chief psychiatrist forms the opinion that it is no longer necessary for the person to be detained.

(2) The chief psychiatrist must give written notice to the following matter mentioned in subsection (1) (c); and information that may be relevant to whether the detention under the forensic psychiatric treatment order continues to be appropriate for the person; and subsection (1) (c) and this will lead to an ACAT review of the detention under forensic psychiatric treatment order; and

psychiatric treatment order; submission to the ACAT review of the forensic psychiatric treatment order. subsection (3) (b), the chief psychiatrist is still satisfied of the matter mentioned in subsection (1) (c) the chief psychiatrist must tell the

107 Powers in relation to forensic psychiatric treatment order (a) a forensic psychiatric treatment order has been made in relation to a person; and (i) the order requires the person to be detained at an approved mental health facility; or

(ii) the chief psychiatrist has made a determination under section 103 (Role of chief psychiatrist—forensic psychiatric treatment order) requiring detention at an approved mental health facility. (2) The chief psychiatrist may— (a) detain the person at an approved mental health facility; and Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of search and seizure). and (d) determine that the person can be given leave from the facility. (3) If the chief psychiatrist subjects a person to involuntary seclusion, the chief psychiatrist must ensure that the person is examined by a relevant doctor of the approved mental health facility at least once in each 4-hour period for which the person is in seclusion. (4) If the chief psychiatrist determines that a person be given medication for the treatment of the person’s mental illness, the chief psychiatrist may— medication prescribed by a doctor in accordance with the chief psychiatrist’s determination; and

(5) If the chief psychiatrist subjects a person to restraint, involuntary seclusion or forcible giving of medication, the chief psychiatrist and relevant doctor, of a relevant place, means a person employed at the place as a consultant psychiatrist, psychiatric registrar in consultation with a consultant psychiatrist or another doctor in consultation with a consultant psychiatrist.

108 Forensic community care order (a) a detainee or person serving a community-based sentence assessed under an assessment order; or (b) a person referred to the ACAT for a forensic mental health order under division 7.1.2; or (c) a person required by a court to submit to the jurisdiction of the

(2) The ACAT may make a forensic community care order in relation to the person if— (a) the person has a mental disorder; and (b) the ACAT believes on reasonable grounds that, because of the mental disorder, the person— mental disorder, the person has seriously endangered, is seriously endangering, or is likely to seriously endanger, public safety; and (d) the ACAT is satisfied that treatment, care or support is likely to reduce the harm, deterioration or endangerment, or the likelihood of harm deterioration or endangerment, mentioned in paragraph (b) or (c); and (e) the ACAT is satisfied that, in the circumstances, a forensic psychiatric treatment order should not be made; and (f) the ACAT is satisfied that, in the circumstances, a mental health order should not be made; and (g) the ACAT is satisfied that the treatment, care or support to be provided under the forensic community care order cannot be adequately provided in another way that would involve less (3) In making a forensic community care order in relation to a person, the ACAT is not required to take into account the person’s decision-making capacity.

109 Content of forensic community care order (1) A forensic community care order made in relation to a person may state 1 or more of the following: (a) that the person is to be given treatment, care or support; (b) that the person may be given medication for the treatment of the person’s mental disorder that is prescribed by a doctor; (c) that the person is to undertake a counselling, training, therapeutic or rehabilitation program; (d) that limits may be imposed on communication between the person and other people; (e) that the person must— (i) live (but not be detained) at a stated approved community care facility or another stated place; or (ii) be detained at a stated community care facility; (f) that the person must not approach a stated person or stated place (2) A forensic community care order made in relation to a person must— under section 110 (Role of care coordinator—forensic community care order); and criteria under section 108 (2) (Forensic community care order).

110 Role of care coordinator—forensic community care order (1) The care coordinator is responsible for coordinating the provision of treatment, care or support for a person in relation to whom a forensic community care order is in force. (2) Within 5 working days after the day the forensic community care order is made, the care coordinator must determine, in writing, the times when and the place where the person is required to attend to receive treatment, care or support, or undertake a counselling, training, therapeutic or rehabilitation program, in accordance with the (3) The care coordinator must not determine treatment, care or support that has, or is likely to have, the effect of subjecting the person to whom it is given to undue stress or deprivation, having regard to the benefit likely to result from the treatment, care or support. (4) Before making a determination in relation to a person, the care coordinator— (a) must take all reasonable steps to consult the following:

(vii) if the person is a detainee, a person released on parole or (viii) if the person is covered by a bail order that includes a (ix) if the person is a child covered by a bail order that includes (x) if the person is a young detainee or a young offender (b) may consult any other service provider the care coordinator considers relevant; and (c) must take into account the views of the people consulted under this section. (5) After making a determination in relation to a person, the care coordinator must record whether the person was consulted and— (6) The care coordinator must, as soon as practicable after making a (a) the people mentioned in subsection (4) (a); and (b) the ACAT; and (c) the public advocate.

111 Treatment etc to be explained—forensic community care (1) Before treatment, care or support is given to a person under a forensic community care order, the care coordinator must ensure that the nature and effects (including any side effects) of the treatment, care or support are explained to the person.

112 Action if forensic community care order no longer (a) a forensic community care order is in force in relation to a (b) the care coordinator forms the opinion that the person is no forensic community care order. Note For the criteria for making a forensic community care order, see s 108. (2) The care coordinator must give written notice to the following

information that may be relevant to whether the forensic community care order continues to be appropriate for the forensic community care order; and community care order;

submission to the ACAT review of the forensic community care mentioned in subsection (1) (b) the care coordinator must tell the

113 Action if forensic community care order no longer appropriate—no longer necessary to detain person (a) a forensic community care order is in force in relation to a (b) the forensic community care order requires the person to be detained at an approved community care facility; and (c) the care coordinator forms the opinion that it is no longer necessary for the person to be detained. Note 1 For the criteria for making a forensic community care order, see s 108. For detention powers in relation to a forensic community care order, see s 114.

(2) The care coordinator must give written notice to the following matter mentioned in subsection (1) (c); and information that may be relevant to whether the detention under the forensic psychiatric treatment order continues to be appropriate for the person; and subsection (1) (c) and this will lead to an ACAT review of the detention under forensic psychiatric treatment order; and

community care order; submission to the ACAT review of the forensic community care mentioned in subsection (1) (c) the care coordinator must tell the

114 Powers in relation to forensic community care order (a) a forensic community care order has been made in relation to a (i) the order requires the person to be detained at an approved community care facility; or (ii) the care coordinator requires the person to be detained at an approved community care facility under section 124 (Contravention of forensic mental health

(2) The care coordinator may— (a) detain the person at the facility in the custody that the care coordinator considers appropriate; and Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of search and seizure). and causing harm to themself or someone else. (3) If the care coordinator subjects a person to involuntary seclusion, the care coordinator must ensure that the person is examined by a relevant doctor of the approved community care facility at least once in each 4-hour period for which the person is in seclusion. (4) If a community care order made in relation to a person authorises the giving of medication for the treatment of the person’s mental disorder, the care coordinator may— medication prescribed by a doctor in accordance with the order; and

Limits on communication under forensic mental health orders Division 7.1.6 (5) If the care coordinator subjects a person to restraint, involuntary seclusion or forcible giving of medication, the care coordinator and relevant doctor, of an approved community care facility, means a person employed at the facility as a consultant psychiatrist, a psychiatric registrar in consultation with a consultant psychiatrist or another doctor in consultation with a consultant psychiatrist. Division 7.1.6 Limits on communication under forensic mental health orders

115 Limits on communication—forensic mental health order (a) a forensic mental health order is made in relation to a person; and (b) the order states that a limit may be imposed on communication between the person and other people.

Division 7.1.6 Limits on communication under forensic mental health orders (2) The relevant official for the order may impose a limit on communication by the person with other people if— (a) the limit is consistent with the order; and (b) the relevant official believes on reasonable grounds that the limit is necessary and reasonable to avoid prejudicing the effectiveness of the person’s treatment, care or support. (3) The relevant official must not impose a limit on communication by the person with someone authorised under a territory law to communicate with the person. (4) As soon as practicable after imposing a limit on communication by a person, the relevant official must explain to the person, in a way the person is most likely to understand— (a) the nature of the limit; and (b) the period for which the limit will be in effect; and (c) the reason for imposing the limit. (5) A limit must not be imposed for a period longer than 7 days. (6) Subsection (5) does not prevent a further limit being imposed immediately after a limit previously imposed ceases to be in effect. (7) This section has effect despite part 3.1 (Rights in relation to information and communication) but subject to section 116.

Duration of forensic mental health orders Division 7.1.7

116 Offence—limits on communication—forensic mental (1) A relevant official commits an offence if— person subject to a forensic mental health order; and (b) the relevant official does not ensure that the person has reasonable access to facilities and adequate opportunity to contact the public advocate and the person’s lawyer. (2) A relevant official commits an offence if— person subject to a forensic mental health order; and (b) the public advocate or the person’s lawyer asks the relevant official to give any reasonable assistance necessary to allow the public advocate or lawyer to have access to the person; and (c) the relevant official does not ensure that the assistance is given. Division 7.1.7 Duration of forensic mental health

117 Duration of forensic mental health orders (1) Unless sooner revoked, a forensic mental health order in relation to a person remains in force for the period, not longer than the following, stated in the order: (a) 3 months; (b) if consecutive forensic mental health orders have been in force in relation to a person for 1 year or more—1 year.

(2) A relevant person must, in writing, tell a person in relation to whom a forensic mental health order has been in force if the order is no longer in force. Note 1 The director-general responsible for the Crimes (Sentence Administration) Act 2005 must tell the director-general of a change in the person’s status (see Crimes (Sentence Administration) Act 2005, s 321AA). Note 2 The chief psychiatrist or another relevant person may apply for a mental health order in relation to the person (see s 51).

118 Meaning of corrections order—div 7.1.8 In this division: corrections order means any of the following: (a) a warrant of remand; (b) a warrant of imprisonment; (c) a bail order under the Bail Act 1992, with a condition to be supervised; (d) a community-based sentence under the Crimes (Sentence Administration) Act 2005, with a condition to be supervised; (e) release on licence under the Crimes (Sentence Administration) Act 2005, chapter 13.

119 Grant of leave for person detained by ACAT health order if the ACAT has ordered the detention. Note 1 The ACAT may order the detention of a person under a forensic mental health order under s 102 (1) (d) or s 109 (1) (e). (2) The ACAT may grant the person a period of leave from the facility— (a) on application by the person; or (b) on application by the relevant official for the order. (3) Before granting leave the ACAT must— (a) if the person is subject to a corrections order— (i) if the person is a detainee—obtain the agreement of the corrections director-general; or (ii) if the person is a young detainee—obtain the agreement of the CYP director-general; or (iii) if the person is not a detainee or young detainee—consult the relevant director-general for the corrections order; and (b) if the application is by the person—consult the relevant official for the order. (4) The ACAT may grant leave for any purpose the ACAT considers appropriate if satisfied that— (a) the consultation mentioned in subsection (3) does not raise a serious concern about the appropriateness of the leave; and (b) the safety of the person, anyone else or the public will not be seriously endangered.

(5) The ACAT may refuse to grant leave if satisfied that— (a) the person applied for leave for the same purpose in the previous 6 months; and (b) the application was refused. Examples—purposes 1 to attend a health or rehabilitation service 2 to take part in work or work-related activities 3 for compassionate reasons (6) A grant of leave must state— (7) A grant of leave may be subject to conditions, including in relation to any of the following:

(i) any other condition the ACAT considers appropriate in the circumstances, taking into account the safety of the person, (8) If leave is granted under this section, the ACAT must give written notice to— (b) the relevant official for the order; and

120 Revocation of leave granted by ACAT (1) The ACAT may revoke leave granted under section 119 to a person— (a) on application by the relevant official for the person’s forensic mental health order; or (b) if the person is subject to a corrections order—on application by the corrections director-general; or (c) in any case—on its own initiative. (2) Before revoking a person’s leave, the ACAT must give notice that the revocation is being considered to—

(b) the relevant official for the person’s forensic mental health order; and (3) The ACAT may revoke a person’s leave if— (a) the ACAT believes on reasonable grounds it is necessary to do so because the person— (iii) is seriously endangering, or is likely to seriously endanger, public safety; or (b) the person contravenes a condition of the grant. (4) If a person’s leave is revoked under this section, the ACAT must give written notice of the revocation to— (b) the relevant official for the person’s forensic mental health order; and

(5) If a person’s leave is revoked under this section, a police officer, apprehend the person and take the person to a relevant facility. (6) If a person is detained under subsection (5), the relevant official must, within 12 hours after the detention starts, give written notice to the ACAT and the public advocate of—

121 Grant of leave for person detained by relevant official health order if the relevant official has detained the person at the Note 1 The chief psychiatrist may make a determination under s 103 (Role of chief psychiatrist—forensic psychiatric treatment order) requiring detention of a person at an approved mental health facility. Note 2 The care coordinator may require a person to be detained at an approved community care facility (see s 114 and s 124). (2) The relevant official may grant a period of leave from the approved mental health facility or approved community care facility— (a) on application by the person; or (b) on the relevant official’s own initiative. (3) Before granting leave the relevant official must— (a) notify the ACAT of the application for leave; and (i) if the person is a detainee—obtain the agreement of the corrections director-general; or (ii) if the person is a young detainee—obtain the agreement of the CYP director-general; or (iii) if the person is not a detainee or young detainee—consult the relevant director-general for the corrections order. (4) The relevant official must not grant leave if satisfied that— (a) the person applied to the ACAT for leave for the same purpose in the previous 6 months; and (b) the application was refused.

(5) The relevant official may allow the person to take a period of leave for any purpose the relevant official considers appropriate if satisfied (a) the consultation mentioned in subsection (3) does not raise a serious concern about the appropriateness of the leave; and (b) the safety of the person, anyone else or the public will not be seriously endangered. Examples—purposes 1 to attend a health or rehabilitation service 2 to take part in work or work-related activities 3 for compassionate reasons (6) The grant of leave must state— (7) The grant of leave may be subject to conditions, including in relation to any of the following:

(i) any other condition the relevant official considers appropriate in the circumstances taking into account the safety of the person, (8) If leave is granted under this section, the relevant official must give written notice to—

122 Leave in emergency or special circumstances health order if— (a) the ACAT has ordered the detention; or (b) the relevant official has detained the person at the facility.

(2) The relevant official may grant the person a period of leave from the approved mental health facility or approved community care facility if satisfied that— (a) there are emergency or special circumstances for granting the leave; and 1 to attend a relative’s funeral 2 to attend an urgent medical appointment (b) the safety of the person, someone else or the public will not be seriously endangered by the leave. (3) Before granting leave the relevant official must— (a) if the person is a detainee—obtain the agreement of the corrections director-general; and (b) if the person is a young detainee—obtain the agreement of the CYP director-general; and (c) if the person is not a detainee or young detainee—consult the (4) The relevant official must not grant leave under this section if the (a) has applied for leave based on the same emergency or special circumstances under section 119 (Grant of leave for person detained by ACAT), section 121 (Grant of leave for person detained by relevant official) or this section; and (b) the ACAT or the relevant official has refused to grant the leave. (5) If leave is granted under this section, the relevant official must give written notice to—

Note The function of granting leave under this section must not be delegated (see s 200 (2) (Delegation by chief psychiatrist) and s 207 (2) (Delegation by care coordinator)).

123 Revocation of leave granted by relevant official (1) The relevant official may revoke leave granted under section 121 or section 122 to a person— (a) if the person is subject to a corrections order—on application by the corrections director-general; or (b) in any case—on its own initiative. (2) Before revoking a person’s leave, the relevant official must give notice that the revocation is being considered to—

(3) The relevant official may revoke a person’s leave if— (a) the relevant official believes on reasonable grounds it is necessary to do so because the person— (iii) is seriously endangering, or is likely to seriously endanger, public safety; or (b) the person contravenes a condition of the grant. (4) If a person’s leave is revoked under this section, the relevant official must give written notice of the revocation to— (5) If a person’s leave is revoked under this section, a police officer, apprehend the person and take the person to a relevant facility.

(6) If a person is detained under subsection (5), the relevant official must, within 12 hours after the detention starts, give written notice to the ACAT and the public advocate of— Division 7.1.9 Contravention and review of forensic mental health orders

124 Contravention of forensic mental health order (a) a forensic mental health order is in force in relation to a person; and (b) the person contravenes the order; and (c) section 125 (Contravention of forensic mental health order— absconding from facility) does not apply to the contravention. Examples—contravention 1 failure to return from leave granted by ACAT 2 not attending mental health facility for treatment, care or support

(2) The relevant official for the order or a mental health officer may take action to tell the person that failure to comply with the order may result in the person being apprehended and taken to a relevant facility for treatment, care or support. (3) Action taken under subsection (2) must— (a) be taken within 7 days of the contravention; and (b) involve the taking of all reasonable steps to tell the person the information mentioned in subsection (2). (4) If the noncompliance continues after the taking of action under subsection (2), the relevant official or mental health officer may require the person to be detained at a relevant facility for treatment, care or support. (5) If a person is required to be detained under subsection (4), a police officer, authorised ambulance paramedic, doctor or mental health officer may apprehend the person and take the person to a relevant (6) If a person is detained under this section the relevant official or mental health officer must, within 12 hours after the detention starts, give written notice to the ACAT and the public advocate of— under this subsection (see s 126 (5)).

125 Contravention of forensic mental health order— absconding from facility (a) a forensic mental health order is in force in relation to a person; and (b) the forensic mental health order requires the person to be detained at an approved mental health facility or an approved community care facility; and (c) the person absconds from the facility. (2) The person in charge of the facility must immediately tell the police that the person has absconded. (3) A police officer, authorised ambulance paramedic, mental health officer or doctor may apprehend the person and take the person to an approved mental health facility or approved community care facility. (4) A police officer, authorised ambulance paramedic, mental health officer or doctor who apprehends a person under this section must tell the person the reason for the apprehension.

(5) If a person is detained under this section the relevant official for the order must, within 12 hours after the detention starts, give written notice to the ACAT and the public advocate of— (c) the name and address of the facility where the person is detained. under this subsection (see s 126 (5)).

126 Review of forensic mental health order (1) The ACAT may review a forensic mental health order in force in relation to a person on its own initiative. (2) The ACAT must review a forensic mental health order in force in relation to a person if the person, or the person’s representative, applies for the review on the basis that the order, or part of the order, is no longer required. (3) The ACAT must review each forensic mental health order in force in relation to a person within 10 days if the ACAT receives notice in relation to the person under any of the following: (a) section 105 (Action if forensic psychiatric treatment order no longer appropriate—no longer person in relation to whom ACAT could make order); (b) section 106 (Action if forensic psychiatric treatment order no longer appropriate—no longer necessary to detain person); (c) section 112 (Action if forensic community care order no longer

(d) section 113 (Action if forensic community care order no longer appropriate—no longer necessary to detain person). (4) A review of a matter under subsection (3) must include, as far as practicable, consulting a person mentioned in section 97. (5) The ACAT must review each forensic mental health order in force in relation to the person within 72 hours if the ACAT receives notice in relation to the person under— (a) section 124 (6) (Contravention of forensic mental health order); or (b) section 125 (5) (Contravention of forensic mental health order— absconding from facility). (6) A review required under subsection (5)— (a) may be conducted without a hearing; and (b) may include consulting a person mentioned in section 97. (7) If the ACAT is satisfied that a person in relation to whom a forensic mental health order is in force is no longer a person in relation to whom the ACAT could make a forensic mental health order, the ACAT must revoke all the forensic mental health orders in force in relation to the person. (8) In any other case, the ACAT may, if appropriate, do any of the (a) confirm, amend or revoke any of the forensic mental health orders in force in relation to the person; (b) make additional forensic mental health orders in relation to the

(c) make a mental health order in relation to the person; (d) make an assessment order in relation to the person. representative, for a person, means any of the following: (d) a close relative or close friend of the person; (e) a legal representative of the person.

127 Definitions—pt 7.2 affected person register—see section 130. director-general means the director-general responsible for the ACT Civil and Administrative Tribunal Act 2008. forensic patient means a person— (a) in relation to whom a forensic mental health order may be made or is in force; or (b) who, if required by an order of a court under the Crimes Act, part 13 or the Crimes Act 1914 (Cwlth), part 1B must submit to the jurisdiction of the ACAT or is subject to a review by the ACAT. publish means communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information.