Mental Health Act 2009

This

Act may be cited as the Mental

Health Act 2009.

In this Act, unless the contrary intention appears—

absent without leave—see subsection (2);

advance care directive means an advance care directive given under the Advance

Care Directives Act 2013 that is in force;

ambulance officer means a person who is—

employed as an ambulance officer, or engaged as a volunteer ambulance officer, with an organisation that provides ambulance services; and

authorised by the chief executive officer of SA Ambulance Service Inc to exercise the powers conferred by this Act on authorised officers;

approved treatment centre means a place determined by the Chief Psychiatrist under Part 12

Division 5 to be an approved treatment centre for the purposes of this Act;

authorised community mental health facility means a facility that is determined by the Chief Psychiatrist under

Part 12 Division 5 to be an authorised community mental health facility;

authorised medical practitioner means a person determined by the Chief Psychiatrist under Part

12 Division 3 to be an authorised medical practitioner for the purposes of this Act;

authorised mental health professional means a person determined by the Chief Psychiatrist under Part

12 Division 4 to be an authorised mental health professional for the purposes of this Act;

authorised officer means—

a mental health clinician; or

an ambulance officer; or

a person employed as a medical officer or flight nurse by the

Royal Flying Doctor Service of Australia (Central Operations)

Incorporated or the Royal Flying Doctor Service of Australia (South

Eastern Section); or

a person, or a person of a class, approved by the Chief Psychiatrist, by notice in the Gazette, for the purposes of this definition; or

any other person, or person of a class, prescribed by the regulations for the purposes of this definition;

carer—a person is a carer of another if the person provides ongoing care or assistance to the other as a carer within the meaning of the Carers

Recognition Act 2005;

the term includes a person who was a carer of another before interruption of the provision of care due to the other's illness;

Chief

Executive means the chief executive of the Department;

Chief

Psychiatrist means the person appointed to the position of Chief Psychiatrist under Part 12

Division 2;

child means a person under 18 years of age;

community treatment order means—

a level 1 community treatment order; or

a level 2 community treatment order;

community visitor means—

the person appointed to the position of Principal Community Visitor under Part 8

Division 2; or

a person appointed to a position of Community Visitor under Part

8 Division 2;

consent to treatment means effective consent to the treatment;

decision, of the Tribunal, has the same meaning as in the South

Australian Civil and Administrative Tribunal Act 2013;

Department means the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of this

Act;

director of a treatment centre means the person for the time being in charge of the mental health services of the centre;

domestic partner—a person is a domestic partner of another if the person is a domestic partner of the other within the meaning of the Family

Relationships Act 1975, whether declared as such under that Act or not; the term includes a person who was a domestic partner of another before interruption of their shared living arrangements due to the other's illness;

ECT means electro-convulsive therapy;

guardian—a person is a guardian of another if the person is acting or appointed under any Act or law as the guardian of the other;

incorporated health service has the same meaning as in the Health

Care Act 2008;

incorporated hospital has the same meaning as in the Health

Care Act 2008;

inpatient in a treatment centre means a person admitted as a patient in a treatment centre;

inpatient treatment order means—

a level 1 inpatient treatment order; or

a level 2 inpatient treatment order; or

a level 3 inpatient treatment order;

internal review means a review under section 70 of the South

Australian Civil and Administrative Tribunal Act 2013;

involuntary inpatient means an inpatient who is subject to an inpatient treatment order;

leave of absence—see section 36;

legal practitioner means a person admitted and enrolled as a practitioner of the

Supreme Court of South Australia;

level

1 community treatment order—see

Part 4 Division 1;

level 1 inpatient treatment order—see

Part 5 Division 2;

level

2 community treatment order—see

Part 4 Division 2;

level 2 inpatient treatment order—see

Part 5 Division 3;

level 3 inpatient treatment order—see

Part 5 Division

4;

limited treatment centre means a place determined by the Chief Psychiatrist under Part

12 Division 5 to be a limited treatment centre for the purposes of this Act;

medical agent—a person is a medical agent of another if the person has been appointed under an Act or law to make decisions on behalf of the other about the other's medical treatment;

medical examination means examination of a person and the person's mental health by a medical practitioner or authorised mental health professional;

medical practitioner means a person registered under the Health

Practitioner Regulation National Law to practise in the medical profession (other than as a student);

mental health clinician means a person of a class of persons who are engaged in the treatment or care of patients and classified by the Chief

Psychiatrist as mental health clinicians for the purposes of this

Act;

mental illness means any illness or disorder of the mind; see also Schedule

1 (Certain conduct may not indicate mental illness);

neurosurgery for mental illness means leucotomy, amygdaloidotomy, hypothalamotomy, temporal lobectomy, cingulectomy, electrode implantation in the brain or any other brain surgery for the relief of mental illness by the elimination or stimulation of apparently normal brain tissues;

patient, in relation to the provision of mental health services, includes (where the context so requires) the following:

a voluntary inpatient;

a person to whom a community treatment order applies;

a person to whom an inpatient treatment order applies;

a person to whom section 56 applies;

a person with a mental illness (within the meaning of this Act) who is liable to a supervision order under Part 8A of the Criminal

Law Consolidation Act 1935;

patient assistance request means a patient assistance request issued under Part

9;

patient transport request means a patient transport request issued under Part

9 or Part 10;

prescribed psychiatric treatment means—

ECT;

or

neurosurgery for mental illness; or

any other treatment declared by the regulations to be prescribed psychiatric treatment;

Prescribed

Psychiatric Treatment Panel or Panel means the Prescribed Psychiatric Treatment Panel established under

Part 7 Division A1;

psychiatrist means a person registered under the Health

Practitioner Regulation National Law—

to practise in the medical profession; and

holding specialist registration as a psychiatrist;

Public

Advocate means the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993;

relative—a person is a relative of another if—

the person is related to the other by blood or marriage; or

the person is a domestic partner of the other; or

the person is of Aboriginal or Torres Strait Islander descent and related to the other according to Aboriginal kinship rules, or

Torres Strait Islander kinship rules, as the case may require;

restrictive practice, in relation to a patient, includes—

the use of physical, mechanical or chemical means to restrain the patient; and

seclusion or the confinement of the patient on his or her own in an area from which he or she cannot leave of his or her own volition;

senior psychiatrist means a person who has, since qualifying for registration as a specialist in psychiatry, had at least 5 years' experience as a practising psychiatrist;

staff of a treatment centre means the director of the centre or any person performing duties involved in the administration or operations of the centre, whether under a contract of employment or some other contractual arrangement;

substitute decision‑maker, in respect of a person, means a substitute decision‑maker appointed under an advance care directive given by the person under the Advance

Care Directives Act 2013 that is in force;

treatment or medical treatment means treatment or procedures administered or carried out by a medical practitioner or other health professional in the course of professional practice, and includes the prescription or supply of drugs;

treatment centre means an approved treatment centre or a limited treatment centre;

Tribunal means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013;

voluntary community patient means a person receiving treatment, care and rehabilitation services for a mental illness in an authorised community mental health facility;

voluntary inpatient means an inpatient who is not subject to an inpatient treatment order.

For the purposes of this Act, a patient will be taken to be absent without leave if—

an inpatient treatment order applies to the patient; and

the patient—

has not been taken into, or remained in, the care and control of treatment centre staff or an authorised officer or police officer after the making of the order and before admission to a treatment centre; or

has left a treatment centre in which he or she was an involuntary inpatient, or the care and control of treatment centre staff, without leave of absence under Part

5 Division 5; or

has been granted leave of absence from a treatment centre under Part 5

Division 5 but has not returned to the centre, or been taken into the care and control of treatment centre staff or an authorised officer or police officer, by the expiry of the leave or after cancellation of the leave.

For the purposes of this Act, a form that has been approved by the Chief

Psychiatrist must—

be published on the Department's website; and

be used for the purposes specified in the form; and

contain the information required by, and be presented and completed in accordance with, any instruction contained in the form; and

be lodged in the manner and form required by the Chief Psychiatrist.

This

Act applies to children in the same way as to persons of full age, subject to the following:

a right conferred on a person under this Act may, if the person is a child under 16 years of age, be exercised by a parent or guardian of the child on behalf of the child;

an obligation under this Act to give a document to a person is, if the person is a child under 16 years of age, to be treated as an obligation to give the document to a parent or guardian of the child, and operates to the exclusion of any further obligation under this Act to send or give the document to a guardian, medical agent, relative, carer or friend;

an obligation under this Act to give information to a person (including information about the person's illness, any order that applies to the person, his or her legal rights, the treatment and other services that are to be provided or offered to the person and what alternatives are available) is, if the person is a child under

16 years of age, to be treated as an obligation to give the information to a parent or guardian of the child.

Subsection (1) does not affect the operation of a provision of this Act that expressly relates to a child or children.

Subject to an express provision of this Act or of any other Act, this Act is in addition to and does not derogate from—

the

Advance

Care Directives Act 2013;

and

the

Consent to Medical Treatment and Palliative Care Act 1995;

and

the

Guardianship and Administration Act 1993.

A reference in this Act to medical examination or examination of a person by a medical practitioner or authorised mental health professional includes, if it is not practicable in the circumstances for a medical practitioner or authorised mental health professional to carry out an examination of the person in the person's physical presence, a reference to an examination of the person by the medical practitioner or authorised mental health professional by means of audio‑visual conferencing.

In this section—

audio‑visual conferencing means any system of two‑way communication linking different places so that a person speaking at any 1 of the places can be seen and heard at the other.

A person is, in the absence of evidence or a law of the State to the contrary, to be presumed to have full decision‑making capacity in respect of decisions about his or her health care, residential and accommodation arrangements and personal affairs.

For the purposes of this Act, a person will be taken to have impaired decision‑making capacity in respect of a particular decision if—

the person is not capable of—

understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or

retaining such information; or

using such information in the course of making the decision; or

communicating his or her decision in any manner; or

in the case of a person who has given an advance care directive—the person has satisfied any requirement in the advance care directive that sets out when the person is to be considered to have impaired decision‑making capacity (however described) in respect of a decision of the relevant kind.

For the purposes of this Act—

a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature; and

a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time; and

a person may fluctuate between having impaired decision‑making capacity and full decision‑making capacity; and

a person's decision‑making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person.

The objects of this Act are—

to ensure that persons with severe mental illness—

receive a comprehensive range of services of the highest standard for their treatment, care and rehabilitation with the goal of bringing about their recovery as far as is possible; and

retain their freedom, rights, dignity and self‑respect as far as is consistent with their protection, the protection of the public and the proper delivery of the services; and

for that purpose, to confer appropriately limited powers to make orders for community treatment, or inpatient treatment, of such persons where required.

The

Minister, the Tribunal, the Chief Psychiatrist, health professionals and other persons and bodies involved in the administration of this

Act are to be guided by the following principles in the performance of their functions:

mental health services should be designed to bring about the best therapeutic outcomes for patients, and, as far as possible, their recovery and participation in community life;

mental health services should meet the highest levels of quality and safety;

mental health services should (subject to this Act or any other Act) be provided in accordance with international treaties and agreements to which Australia is a signatory;

mental health services should be provided on a voluntary basis as far as possible, and otherwise in the least restrictive way and in the least restrictive environment that is consistent with their efficacy and public safety, and at places as near as practicable to where the patients, or their families or other carers or supporters, reside;

mental health services should be governed by comprehensive treatment and care plans that are developed in a multi‑disciplinary framework in consultation with the patients (including children) and their family or other carers or supporters;

mental health services should take into account—

the different developmental stages of infants, children, young persons, adults and older persons; and

the gender or gender identity, or the sexuality or sexual identity or orientation, of persons; and

the particular needs of persons with disability; and

in the case of persons of Aboriginal or Torres Strait Islander descent—the persons' traditional beliefs and practices and, when practicable and appropriate, involve collaboration with health workers and traditional healers from their communities; and

the cultural and linguistic backgrounds of persons; and

the background, circumstances and particular needs of persons who have experienced torture or trauma;

there should be regular medical examination of every patient's mental and physical health and regular medical review of any order applying to the patient;

children and young persons should be cared for and treated separately from other patients as necessary to enable the care and treatment to be tailored to their different developmental stages;

the rights, welfare and safety of the children and other dependants of patients should always be considered and protected as far as possible;

medication should be used only for therapeutic purposes or safety reasons and not as a punishment or for the convenience of others;

restrictive practices should be used only as a last resort for safety reasons and not as a punishment or for the convenience of others;

patients (together with their family or other carers or supporters) should be provided with comprehensive information about their illnesses, any orders that apply to them, their legal rights, the treatments and other services that are to be provided or offered to them and what alternatives are available;

information should be provided in a way that ensures as far as practicable that it can be understood by those to whom it is provided.

In this section—

mental health services means all services involved in the treatment, care and rehabilitation of persons with severe mental illness, including the making and carrying out of orders under this Act and services to assist the recovery of patients after the termination of the orders or the completion of treatment;

patient includes a voluntary community patient.

A person may be admitted as a voluntary inpatient in a treatment centre at his or her own request.

A person admitted as a voluntary inpatient in a treatment centre may leave the centre at any time unless an inpatient treatment order then applies to the person.

The director of a treatment centre must ensure that a voluntary inpatient in the centre is given, as soon as practicable after admission, a statement in writing in the form approved by the Chief

Psychiatrist (a statement of rights)—

informing the patient of his or her legal rights; and

containing any other information prescribed by the regulations.

If a patient is unable to read or otherwise comprehend the statement of rights, the director must ensure that any steps that are practicable in the circumstances are taken to convey the information contained in the statement to the patient.

Subject to subsection (4), the director must cause a copy of the statement of rights to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

The following provisions apply for the purposes of subsection (3):

the person to be sent or given a copy of the statement of rights must be—

a guardian, medical agent, relative, carer or friend of the patient nominated by the patient for the purpose; or

if that is not practicable or appropriate—a guardian, medical agent, relative, carer or friend of the patient who appears to have or be assuming responsibility for the care of the patient; or

if that is not practicable or appropriate—any other guardian, medical agent, relative, carer or friend of the patient to whom it is practicable and appropriate to send or give a copy of the statement;

the director is not required to send or give a copy of the statement to a person whose whereabouts are not known to or readily ascertainable by the director;

it is not appropriate for the director to send or give a copy of the statement to a particular person if the director has reason to believe that it would be contrary to the patient's best interests to do so.

A medical practitioner or authorised mental health professional may make an order for the treatment of a person (a level

1 community treatment order) if it appears to the medical practitioner or authorised mental health professional, after examining the person, that—

the person has a mental illness; and

because of the mental illness, the person requires treatment for the person's own protection from harm (whether physical or mental, and including harm involved in the continuation or deterioration of the person's condition) or for the protection of others from harm; and

the person has impaired decision‑making capacity relating to appropriate treatment of the person's mental illness; and

there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person's illness.

In considering whether there is no less restrictive means than a community treatment order of ensuring appropriate treatment of the person's illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis.

A level 1 community treatment order must be made in writing in the form approved by the Chief Psychiatrist.

A level 1 community treatment order, unless earlier revoked, expires at a time fixed in the order which must be 2 pm on a business day not later than 42 days after the day on which it is made.

On the making of a level 1 community treatment order, the following provisions apply:

the patient must be examined by a psychiatrist or authorised medical practitioner, who must, if the order was made by a psychiatrist or authorised medical practitioner, be a different psychiatrist or authorised medical practitioner from whomever made the order;

the examination must occur within 24 hours of the making of the order;

if it is not practicable for the examination to occur within that period, it must occur as soon as practicable thereafter;

after completion of the examination, the psychiatrist or authorised medical practitioner may confirm the level 1 community treatment order if satisfied that the grounds referred to in subsection (1) exist for the making of a level 1 community treatment order, but otherwise must revoke the order.

A medical practitioner or authorised mental health professional may form an opinion about a person under subsection (1) or (5) based on his or her own observations and any other available evidence that he or she considers reliable and relevant (which may include evidence about matters occurring outside the State).

A psychiatrist or authorised medical practitioner who has examined a patient to whom a level 1 community treatment order applies may vary or revoke the order at any time.

Note—

A psychiatrist or authorised medical practitioner who revokes a level 1 community treatment order may, in substitution, make a level 1 inpatient treatment order under Part

5 Division 2.

Confirmation, variation or revocation of a level 1 community treatment order must be effected by notice in the form approved by the Chief

Psychiatrist.

A psychiatrist or authorised medical practitioner making, confirming, varying or revoking a level 1 community treatment order must ensure that the Chief Psychiatrist is sent or given, within

Psychiatrist.

The

Chief Psychiatrist must, within 1 business day, by written notice sent or given to the psychiatrist or authorised medical practitioner, acknowledge receipt by the Chief Psychiatrist of a notice under subsection (1).

A medical practitioner or authorised mental health professional making a level 1 community treatment order must ensure that the patient is given, as soon as practicable, a copy of the order.

A medical practitioner or authorised mental health professional making a level 1 community treatment order must ensure that the patient is given, as soon as practicable, a statement in writing in the form approved by the Chief Psychiatrist (a statement of rights)—

informing the patient of his or her legal rights; and

containing any other information prescribed by the regulations.

If a patient is unable to read or otherwise comprehend the statement of rights, the medical practitioner or authorised mental health professional must ensure that any steps that are practicable in the circumstances are taken to convey the information contained in the statement to the patient.

Subject to subsection (6), a psychiatrist or authorised medical practitioner making or confirming a level 1 community treatment order must cause a copy of the order and statement of rights to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

If a level 1 community treatment order is varied or revoked, the psychiatrist or authorised medical practitioner varying or revoking the order must—

ensure that the patient is given, as soon as practicable, a copy of the notice of variation or revocation of the order; and

subject to subsection (6), cause a copy of the notice of variation or revocation to be sent or given to a guardian, medical agent, relative, carer or friend of the patient as soon as practicable.

The following provisions apply for the purposes of subsections (4) and (5)(b):

the person to be sent or given a copy of the order and statement of rights, or notice of variation or revocation, must be—

a guardian, medical agent, relative, carer or friend of the patient nominated by the patient for the purpose; or

if that is not practicable or appropriate—a guardian, medical agent, relative, carer or friend of the patient who appears to have or be assuming responsibility for the care of the patient; or

if that is not practicable or appropriate—any other guardian, medical agent, relative, carer or friend of the patient to whom it is practicable and appropriate to send or give the copy of the order and statement, or notice of variation or revocation;

the psychiatrist or authorised medical practitioner is not required to send or give a copy of the order and statement, or notice of variation or revocation, to a person whose whereabouts are not known to or readily ascertainable by the psychiatrist or authorised medical practitioner;

it is not appropriate for the psychiatrist or authorised medical practitioner to send or give a copy of the order and statement, or notice of variation or revocation, to a particular person if the psychiatrist or authorised medical practitioner has reason to believe that it would be contrary to the patient's best interests to do so.