2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Health)

Part 1.1 Children and Young People Act 1999 25

Part 1.2 Crimes Act 1900 25

Part 1.3 Guardianship and Management of Property Act 1991 26

Part 1.4 Health Professionals Legislation Amendment Act 2004 28

Part 1.5 Powers of Attorney Act 1956 28

2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Health)

An Act to amend the Mental Health (Treatment and Care) Act 1994, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Mental Health (Treatment and Care) Amendment Act 2005.

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This Act amends the Mental Health (Treatment and Care) Act 1994.

Note This Act also amends the following legislation (see sch 1):

• Children and Young People Act 1999

• Crimes Act 1900

• Guardianship and Management of Property Act 1991

• Health Professionals Legislation Amendment Act 2004

• Powers of Attorney Act 1956.

proceeding means an inquiry, review or any other proceeding of the tribunal.

1 hearing an application for a psychiatric treatment order

2 hearing an application for an emergency electroconvulsive therapy order

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

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 in this Act.

For example, the signpost definition ‘electroconvulsive therapy—see section 55.’ means that the term ‘electroconvulsive therapy’ is defined in that section.

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)).

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.

• s 55B (Offence—electroconvulsive therapy without consent)

• s 55C (Offence—electroconvulsive therapy on more than 10 occasions since consent)

• s 55D (Offence—electroconvulsive therapy after consent withdrawn)

• s 55I (Offence—electroconvulsive therapy without electroconvulsive therapy order)

• s 55J (Offence—electroconvulsive therapy on more than 10 occasions since electroconvulsive therapy order)

• s 55K (Offence—electroconvulsive therapy after order consent withdrawn)

• s 56 (Offence—electroconvulsive therapy without doctor’s consent)

• s 57 (1) (Doctor must record electroconvulsive therapy)

• s 57 (2)

• s 57 (3)

• s 58 (Electroconvulsive therapy records to be kept for 5 years)

Note Special provisions apply for the emergency administration of electroconvulsive therapy (see subdiv 7.2.4).

For this Act:

electroconvulsive therapy means a procedure for the induction of an epileptiform convulsion in a person.

A doctor, or person authorised by a doctor, may administer electroconvulsive therapy to a person who is not the subject of a psychiatric treatment order if—

(a) the person gives informed consent to the administration of the electroconvulsive therapy; and

(b) the person has not had electroconvulsive therapy administered on 10 or more occasions since the consent; and

(c) the person has not withdrawn the consent, either orally or in writing.

(1) A doctor commits an offence if—

(a) a person has not given informed consent to the administration of electroconvulsive therapy; and

(b) the doctor—

(i) administers electroconvulsive therapy to the person; or

(ii) authorises the administration of electroconvulsive therapy to the person.

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

(2) This section does not apply to the administration of electroconvulsive therapy to a person in accordance with—

(a) an electroconvulsive therapy order in force in relation to the person; or

(b) an emergency electroconvulsive therapy order in force in relation to the person.

(1) A doctor commits an offence if—

(a) a person has given informed consent to the administration of electroconvulsive therapy; and

(b) electroconvulsive therapy has been administered to the person on 10 or more occasions since the person consented; and

(c) the doctor—

(i) administers electroconvulsive therapy to the person; or

(ii) authorises the administration of electroconvulsive therapy to the person.

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

(2) This section does not apply to the administration of electroconvulsive therapy to a person in accordance with—

(a) an electroconvulsive therapy order in force in relation to the person; or

(b) an emergency electroconvulsive therapy order in force in relation to the person.

(1) A doctor commits an offence if—

(a) a person has given informed consent to the administration of electroconvulsive therapy; and

(b) the person withdraws the consent, whether orally or in writing; and

(c) after the consent is withdrawn, the doctor—

(i) administers electroconvulsive therapy to the person; or

(ii) authorises the administration of electroconvulsive therapy to the person.

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

(2) This section does not apply to the administration of electroconvulsive therapy to a person in accordance with—

(a) an electroconvulsive therapy order in force in relation to the person; or

(b) an emergency electroconvulsive therapy order in force in relation to the person.

A doctor, or person authorised by a doctor, may administer electroconvulsive therapy to a person who is the subject of a psychiatric treatment order if—

(a) there is an electroconvulsive therapy order in force in relation to the person; and

(b) the person has not had electroconvulsive therapy administered on 10 or more occasions since the electroconvulsive therapy order was made; and

(c) if the electroconvulsive therapy order states that the person had the capacity to consent to the order, and gave informed consent to the order—the person has not withdrawn the consent, either orally or in writing.

(1) The chief psychiatrist or a doctor may apply for an order (an electroconvulsive therapy order) for the administration of electroconvulsive therapy to a person if—

(a) a psychiatric treatment order is in force in relation to the person; and

(b) the chief psychiatrist or doctor believes on reasonable grounds that—

(i) the administration of electroconvulsive therapy is likely to result in substantial benefit to the person; and

(ii) either—

(A) all other reasonable forms of treatment available have been tried but have not been successful; or

(B) the treatment is the most appropriate treatment reasonably available.

(2) The application must be supported by the evidence of a psychiatrist other than the applicant.

The tribunal may make an electroconvulsive therapy order in relation to a person who is the subject of a psychiatric treatment order if—

(a) the person—

(i) has given informed consent to the administration of electroconvulsive therapy; and

(ii) has not withdrawn the consent, either orally or in writing; or

(b) the tribunal is satisfied that—

(i) the person is, because of mental illness, incapable of weighing the considerations involved in deciding whether or not to consent to the administration of electroconvulsive therapy; and

(ii) the administration of electroconvulsive therapy is likely to result in substantial benefit to the person; and

(iii) either—

(A) all other reasonable forms of treatment available have been tried but have not been successful; or

(B) the treatment is the most appropriate treatment reasonably available.

An electroconvulsive therapy order made in relation to a person must—

(a) state that the person may be given electroconvulsive therapy; and

(b) include a statement that the person—

(i) has the capacity to consent to the order, and gives informed consent; or

(ii) does not have the capacity to consent to the order.

Note The tribunal must give a copy of the order to certain people (see s 105).

(1) A doctor commits an offence if—

(a) a psychiatric treatment order is in force in relation to a person; and

(b) an electroconvulsive therapy order is not in force in relation to the person; and

(c) the doctor—

(i) administers electroconvulsive therapy to the person; or

(ii) authorises the administration of electroconvulsive therapy to the person.

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

(2) This section does not apply to the administration of electroconvulsive therapy to a person in accordance with an emergency electroconvulsive therapy order in force in relation to the person.

(1) A doctor commits an offence if—

(a) a psychiatric treatment order is in force in relation to a person; and

(b) an electroconvulsive therapy order is in force in relation to the person; and

(c) electroconvulsive therapy has been administered to the person on 10 or more occasions since the tribunal made the electroconvulsive therapy order; and

(d) the doctor—

(i) administers electroconvulsive therapy to the person; or

(ii) authorises the administration of electroconvulsive therapy to the person.

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

(2) This section does not apply to the administration of electroconvulsive therapy to a person in accordance with an emergency electroconvulsive therapy order in force in relation to the person.

(1) A doctor commits an offence if—

(a) a psychiatric treatment order is in force in relation to a person; and

(b) an electroconvulsive therapy order is in force in relation to the person; and

(c) the electroconvulsive therapy order states that the person has the capacity to consent to the order, and gives informed consent; and

(d) the person withdraws the consent, whether orally or in writing; and

(e) after the consent is withdrawn, the doctor—

(i) administers electroconvulsive therapy to the person; or

(ii) authorises the administration of electroconvulsive therapy to the person.

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

(2) This section does not apply to the administration of electroconvulsive therapy to a person in accordance with an emergency electroconvulsive therapy order in force in relation to the person.

A doctor, or person authorised by a doctor, may administer electroconvulsive therapy to a person if—

(a) there is an emergency electroconvulsive therapy order in force in relation to the person; and

(b) the electroconvulsive therapy is administered in accordance with the emergency electroconvulsive therapy order.

(1) The chief psychiatrist and a doctor may jointly apply for an order (an emergency electroconvulsive therapy order) for the emergency administration of electroconvulsive therapy to a person if the chief psychiatrist and doctor believe on reasonable grounds that—

(a) the person is at least 16 years old; and

(b) the person has a mental illness; and

(c) the administration of the electroconvulsive therapy is necessary to save the person’s life.

(2) The application must be accompanied by—

(a) if a psychiatric treatment order is in force in relation to the person—an application for an electroconvulsive therapy order in relation to the person; or

(b) an application for both a psychiatric treatment order and an electroconvulsive therapy order in relation to the person.

Note 1 The registrar must give a copy of the application and accompanying documents to the following people as soon as practicable (and within 24 hours) after the application is lodged:

• the president of the tribunal

• the public advocate

• if the person is a child—the C&YP chief executive (see s 87).

Note 2 Certain people are entitled to appear and give evidence, and be represented, at the proceeding including:

• the person who is the subject of the proceeding

• the public advocate

• the discrimination commissioner.

Other people are also entitled to appear (see s 89).

(1) The tribunal may make an emergency electroconvulsive therapy order in relation to a person if satisfied that—

(a) the person is at least 16 years old; and

(b) the person has a mental illness; and

(c) the person is, because of the mental illness, incapable of weighing the considerations involved in deciding whether or not to consent to the administration of electroconvulsive therapy; and

(d) the administration of electroconvulsive therapy is necessary to save the person’s life; and

(e) either—

(i) all other reasonable forms of treatment available have been tried but have not been successful; or

(ii) the treatment is the most appropriate treatment reasonably available.

(2) In making an emergency electroconvulsive therapy order in relation to a person, the tribunal must take into account the following:

(a) the views and wishes of the person, so far as they can be found out;

(b) the views and wishes of the people responsible for the day-to-day care of the person, so far as those views and wishes are made known to the tribunal;

(c) the views of the people appearing at the proceeding.

An emergency electroconvulsive therapy order made in relation to a person must state that—

(a) electroconvulsive therapy may be administered to the person on a stated number of occasions (not more than 3); and

(b) the order expires a stated number of days (not more than 7) after it is made.

Note The tribunal must give a copy of the order to certain people within 24 hours (see s 105).

If an emergency electroconvulsive therapy order is in force in relation to a person and the tribunal makes another order in relation to the person, the emergency electroconvulsive therapy order ceases to be in force.

A person commits an offence if—

(a) the person administers electroconvulsive therapy to someone else; and

(b) the person is not a doctor; and

(c) the person is not authorised by a doctor to administer the electroconvulsive therapy.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(1) A doctor commits an offence if the doctor—

(a) administers electroconvulsive therapy to a person; and

(b) does not make a record of the administration, including whether the administration was in accordance with an order of the tribunal or was voluntary.

Maximum penalty: 20 penalty units.

(2) A doctor commits an offence if the doctor—

(a) authorises the administration of electroconvulsive therapy to a person; and

(b) does not make a record of the authorisation, including whether the administration is to be in accordance with an order of the tribunal or is voluntary.

Maximum penalty: 20 penalty units.

(3) A doctor commits an offence if the doctor does not give a record of electroconvulsive therapy mentioned in subsection (1) or (2) to a person in charge of the psychiatric institution where the therapy is, or is to be, administered.

Maximum penalty: 20 penalty units.

A person in charge of a psychiatric institution commits an offence if the person does not keep a record of electroconvulsive therapy given under section 57 (3) for at least 5 years after the day the record is given.

Maximum penalty: 20 penalty units.

The tribunal may be constituted by only a presidential member for the purpose of the following matters:

(a) making an order for an assessment under section 16;

(b) making an order for a person’s removal under section 18;

(c) making an order for a person’s detention under section 41 (2);

(d) making an order for a person’s release under section 46.

(1) This section applies to the tribunal constituted by the following members:

(a) a presidential member;

(b) a psychiatrist member, psychologist member or mental health services member, selected by the president;

(c) a community member.

Note For par (b), the president must select the kind of member the president considers most suitable for the matter (see s 83C).

(2) The tribunal must be constituted as mentioned in subsection (1) for the purpose of the following matters:

(a) making a mental health order;

• a psychiatric treatment order is made under s 28

• a community care order is made under s 36

• a restriction order is made under s 30 or s 36B.

(b) reviewing a mental health order under section 36L;

(c) making an electroconvulsive therapy order under section 55G;

(d) making an emergency electroconvulsive therapy order under section 55N;

(e) reviewing a person’s fitness to plead under section 68;

(f) making a recommendation about a mentally dysfunctional or mentally ill person under section 70;

(g) reviewing an order for detention under section 72;

(h) reviewing a condition in force in relation to a person released from detention under section 73.

(1) This section applies to the tribunal constituted as mentioned in section 83A.

(2) If a non-presidential member ceases to be a member, or to be available for the proceeding, before the matter is decided, the presidential member and the remaining non-presidential member may finish the proceeding.

(3) However, if the presidential member believes that it would be prejudicial to the interests of the person who is the subject of the proceeding, the proceeding must be finished by the tribunal constituted by the presidential member, the remaining non-presidential member and—

(a) if the remaining non-presidential member is a community member—a psychiatrist member, psychologist member or mental health services member, selected by the president; or

(b) if the remaining non-presidential member is not a community member—a community member.

Note For par (a), the president must select the kind of member the president considers most suitable for the matter (see s 83C).

(4) If the tribunal is reconstituted under subsection (3), the reconstituted tribunal may have regard to any evidence or information, or documents produced to the tribunal as previously constituted.

If the president must select a member of the tribunal under section 83A (1) (b) or section 83B (3) (a) for a matter, the president must select the kind of member the president considers most suitable for the matter.

A magistrate must not constitute the tribunal under section 83, or be a member of the tribunal under section 83A or section 83B, if the proceeding before the tribunal—

(a) relates to an order made by the magistrate requiring a person to submit to the jurisdiction of the tribunal; or

(b) arises from a finding made by the magistrate under the Magistrates Court Act 1930, part 3.5 (Proceedings for indictable offences) in relation to a person; or

(c) arises from a decision made by the magistrate in relation to bail for a person.

(2) If there is a division of opinion about another question arising in a proceeding, the question is decided—

(a) according to the opinion of the majority of members constituting the tribunal; or

(b) if there is no majority on the question—according to the opinion of the presidential member.

(1) The registrar must give a copy of a tribunal order to—

(a) the person who is the subject of the order; and

(b) if the person has a representative—the representative; and

(c) if the person is a child—the child’s parents; and

(d) if the person has a guardian—the guardian; and

(e) if the person has made a power of attorney under the Powers of Attorney Act 1956—the donee under the power of attorney; and

(f) if the person has made a power of attorney under the Medical Treatment Act 1994—the grantee under the power of attorney; and

(g) the public advocate; and

(h) if the person was referred to the tribunal under section 15 (Referrals)—the referring officer; and

(i) if the person was ordered to submit to the jurisdiction of the tribunal by a court—the court; and

(j) if the order requires the person to be admitted to a facility or institution—the person in charge of that facility or institution; and

(k) any other person stated in the order under section 104 (b).

(2) The registrar must also give a copy of the following tribunal orders to the chief psychiatrist:

(a) a psychiatric treatment order;

(b) a restriction order in relation to a person subject to a psychiatric treatment order;

(c) an electroconvulsive therapy order;

(d) an emergency electroconvulsive therapy order.

(3) The registrar must also give a copy of the following tribunal orders to the care coordinator:

(a) a community care order;

(b) a restriction order in relation to a person subject to a community care order.

(4) The tribunal must give a copy of an emergency electroconvulsive therapy order to the relevant people mentioned in subsection (1) and (2) within 24 hours after the order is made.

Note For how documents may be served, see the Legislation Act, pt 19.5.

(5) Until the Public Advocate Act 2005 commences, the reference in subsection (1) (g) to the public advocate is a reference to the community advocate.

(6) Subsection (5) and this subsection expire on the day the Public Advocate Act 2005 commences.

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• chief executive (see s 163)

• child

• director of public prosecutions

• discrimination commissioner

• doctor

• domestic partner (see s 169 (1))

• expire

• guardianship tribunal

• lawyer

• magistrate

• Magistrates Court

• make

• parent

• police officer

• proceeding

• public advocate

• registrar

• Supreme Court

• writing.

agreement, for part 5A (Interstate application of mental health laws)—see section 48B.

corresponding law, for part 5A (Interstate application of mental health laws)—see section 48B.

custodial order, for part 5A (Interstate application of mental health laws)—see section 48B.

electroconvulsive therapy—see section 55.

electroconvulsive therapy order—see section 55F.

emergency electroconvulsive therapy order—see section 55M.

informed consent, for part 7 (Electroconvulsive therapy and psychiatric surgery)—see section 54.

interstate custodial patient, for part 5A (Interstate application of mental health laws)—see section 48B.

interstate non-custodial order, for part 5A (Interstate application of mental health laws)—see section 48B.

licence, for part 12 (Private psychiatric institutions)—see section 123.

licensed premises, for part 12 (Private psychiatric institutions)—see section 123.

licensee, for part 12 (Private psychiatric institutions)—see section 123.

non-custodial order, for part 5A (Interstate application of mental health laws)—see section 48B.

psychiatric institution, for part 12 (Private psychiatric institutions)—see section 123.

responsible person, for part 6 (Rights of mentally dysfunctional or mentally ill persons)—see section 49.

State, for part 5A (Interstate application of mental health laws)—see section 48B.

convulsive therapy

electroconvulsive therapy

• section 11 (d)

• section 29 (1) (b) (i)

• part 7 heading

• section 54 (3), definition of procedure, paragraph (a)

• section 142 (1) (a)

• section 142 (2) (a)

• section 143 (a)

section 4

dictionary

mental health order—see the Mental Health (Treatment and Care) Act 1994, dictionary.

section 4

dictionary

section 4

dictionary

section 26 or 27

section 26 (What tribunal must take into account) or section 27 (Tribunal may not order particular drugs etc)

psychiatric illness, convulsive therapy

mental illness, electroconvulsive therapy

Note Treatment for mental illness, including electroconvulsive therapy and psychiatric surgery, is dealt with in the Mental Health (Treatment and Care) Act 1994.

electroconvulsive therapy—see the Mental Health (Treatment and Care) Act 1994, section 55.

mental illness—see the Mental Health (Treatment and Care) Act 1994, dictionary.

psychiatric illness, convulsive therapy

mental illness, electroconvulsive therapy

psychiatric surgery—see the Mental Health (Treatment and Care) Act 1994, dictionary.

mental health nurse means a person registered as a nurse under the Health Professionals Act 2004 in the specialist area of mental health nurse.

Note Under the Mutual Recognition Act 1992 (Cwlth), s 25 people registered as nurses in a specialty in a State may be deemed to be registered in the specialty in the ACT.

psychiatric illness, convulsive therapy

mental illness, electroconvulsive therapy

Note Treatment for mental illness, including electroconvulsive therapy and psychiatric surgery, is dealt with in the Mental Health (Treatment and Care) Act 1994.

psychiatric illness, convulsive therapy

mental illness, electroconvulsive therapy

(5) In this section:

electroconvulsive therapy—see the Mental Health (Treatment and Care) Act 1994, dictionary.

mental illness—see the Mental Health (Treatment and Care) Act 1994, dictionary.

psychiatric surgery—see the Mental Health (Treatment and Care) Act 1994, dictionary.

Presentation speech made in the Legislative Assembly on 2005.

Notified under the Legislation Act on 2005.

For the latest republication of amended laws, see www.legislation.act.gov.au.