Mental Health Act 2013

Mental Health Act 2013

This Act may be cited as the Mental Health Act 2013.

The provisions of this Act commence on a day or days to be proclaimed but, if not all of the provisions have commenced before 17 February 2014, the provisions of this Act that have not commenced before that date commence on that date.

In this Act, unless the contrary intention appears – Aboriginal person has the same meaning as in the Aboriginal Lands Act 1995; adult means a person who has attained the age of 18 years; ambulance officer means an officer of the Ambulance Service within the meaning of the Ambulance Service Act 1982; appropriate record, of any matter, means a record of the matter that sets out relevant particulars and circumstances; approved assessment centre means an assessment centre that is approved under section 140; approved facility means an approved hospital, an approved assessment centre or a secure mental health unit; approved form means a form approved by the Chief Psychiatrist; approved hospital means a hospital approved under section 140; approved medical practitioner– see section 138; approved nurse– see section 138; assessment criteria means the criteria set out in section 25; assessment order means an assessment order made under Division 1 of Part 3 of Chapter 2; authorised person– see section 109; chemical restraint means medication given primarily to control a person's behaviour, not to treat a mental illness or physical condition; Chief Psychiatrist means the person for the time being holding or acting in the office referred to in section 143; child means a person who has not attained the age of 18 years; clinical guidelines– see section 151; clinical reasons, for granting any patient a leave of absence under this Act, include – facilitating the patient's rehabilitation or reintegration into the community; and furthering the patient's treatment; and reasons deemed appropriate by the person authorised to grant the leave; communication aid means any electronic or other device used to assist a person to communicate; controlling authority means – for an approved facility run by or on behalf of the State, the Secretary; and for any other approved facility, the person for the time being in overall charge of the day-to-day clinical management of that facility; custody and escort provisions means the custody and escort provisions in Schedule 2; decision-making capacity– see section 7; Deputy Public Guardian means the Deputy Public Guardian under the Guardianship and Administration Act 1995;Director means the Director of Corrective Services appointed under the Corrections Act 1997; disability means any restriction or lack of ability to perform an activity in a normal manner (being a restriction or lack of ability arising from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function); eligible person means a person registered in relation to a particular forensic patient in the Eligible Persons Register;Eligible Persons Register means the register kept under section 87A of the Corrections Act 1997; financial year means the 12-month period ending on 30 June in any year; forensic patient means a person admitted to an SMHU under section 68 and not discharged from the SMHU; general health care means medical, dental or other health treatment not primarily aimed at the treatment or alleviation of mental illness; government premises means premises run by or on behalf of the State; guardian has the same meaning as in the Guardianship and Administration Act 1995;Health Complaints Commissioner means the person for the time being holding or acting in the appointment referred to in section 5 of the Health Complaints Act 1995; health professional means a person registered under the Health Practitioner Regulation National Law (Tasmania) in any profession; informed consent, to assessment or treatment – see sections 8 and 9; involuntary patient means a person who is subject to an assessment order or treatment order; make, a record, includes causing the record to be made; mechanical restraint means a device that controls a person's freedom of movement; member has the same meaning as in the Tasmanian Civil and Administrative Tribunal Act 2020; mental health officer means a person who, under section 139, is a mental health officer for the provision in which the expression is used; mental health service delivery principles– see section 15 and Schedule 1; mental illness– see section 4;MHO means mental health officer; notice means written notice; nurse means a registered nurse or enrolled nurse;Official Visitor means a person for the time being holding an appointment under section 155(2); parent, of a child, includes – a person who – in respect of the child, has all of the duties, powers, responsibilities and authority which, by law, parents have in relation to their children; or is the legal guardian of the child; or has the legal custody of the child; and if there is no person who falls within paragraph (a) in respect of the child, a person who – generally acts as a parent of the child; and has acted as a parent of the child for a significant length of time; and is recognised by the child as a parental figure for the child; patient means, according to the context, a voluntary inpatient, involuntary patient or forensic patient and, in Part 6 of Chapter 2, includes a voluntary patient; personal reasons for granting any patient a leave of absence under this Act include – visiting a sick or dying relative or close friend; and attending the funeral of a relative or close friend; and attending a wedding or graduation of a relative or close friend; and attending a family occasion of special importance; and if the patient is an Aboriginal person, attending an event of cultural or spiritual significance to Aboriginal persons; and attending a special religious event or service; and attending a reunion or commemoration; physical aids includes – spectacles and hearing aids; and prostheses; and inhalers, ventilators and oxygen apparatuses; and crutches, wheelchairs and walking frames; physical restraint means bodily force that controls a person's freedom of movement; place, a document on a clinical record, includes causing the document to be placed on the clinical record; premises includes a part of the premises; President has the same meaning as in the Tasmanian Civil and Administrative Tribunal Act 2020;President of the Tribunal means the President;Principal Official Visitor means the person for the time being holding an appointment under section 155(1); prison means – a prison within the meaning of the Corrections Act 1997; or a detention centre within the meaning of the Youth Justice Act 1997; prisoner means – a prisoner or detainee within the meaning of the Corrections Act 1997; or a person serving a sentence of detention imposed under the Youth Justice Act 1997 or subject to an order under that Act remanding the person to a detention centre; privileged caller– see section 98; privileged correspondent– see section 98; privileged visitor– see section 98; proper matter includes the objects of this Act, the mental health service delivery principles set out in Schedule 1, Tribunal guidelines, clinical guidelines and standing orders; psychiatrist means a medical practitioner who – is a Fellow of the Royal Australian and New Zealand College of Psychiatrists; or holds specialist registration in the specialty of psychiatry; or holds limited registration that enables the medical practitioner to practise the specialty of psychiatry;Public Guardian means the Public Guardian under the Guardianship and Administration Act 1995; record includes an electronic record; Registrar has the same meaning as in the Tasmanian Civil and Administrative Tribunal Act 2020; regulations means the regulations made and in force under this Act; representative, of a patient or prospective patient, means – the patient's guardian; or the patient's Australian lawyer; or if the patient is a child and raises no objection, a parent of the patient; or any other person nominated by the patient to represent his or her interests; responsibility means a power, function or duty; responsible Minister means the Minister to whom the administration of this Act, except Parts 2 and 3 of Chapter 3, and Schedules 3, 4 and 5, is assigned; restraint means any form of chemical, mechanical or physical restraint; restriction order means a restriction order made under the Criminal Justice (Mental Impairment) Act 1999 or Sentencing Act 1997; review means a review for the purposes of, or required under, this Act; seclusion means the deliberate confinement of an involuntary patient or forensic patient, alone, in a room or area that the patient cannot freely exit;Secretary means the Secretary of the Department;Secretary (Corrections)means the Secretary of the responsible Department in relation to the Corrections Act 1997;Secretary (Youth Justice)means the Secretary of the responsible Department in relation to the Youth Justice Act 1997; secure institution– see section 141; secure mental health unit means a secure mental health unit approved for this Act under section 140; sentence of imprisonment includes a sentence of detention imposed under the Youth Justice Act 1997; setting, of any assessment or treatment, means its setting in terms of whether the assessment or treatment occurs or is given in the community or in an approved facility or by some combination thereof;SMHU means secure mental health unit; special psychiatric treatment– see section 122(1); standing orders– see section 152;State includes Territory; statement of rights means a written statement that sets out and succinctly explains, in plain language, what rights a patient or prospective patient has in the particular circumstances under this Act in which he or she is required to be given such a statement; statutory rule means a statutory rule within the meaning of the Rules Publication Act 1953; supervision order means a supervision order made under the Criminal Justice (Mental Impairment) Act 1999 or Sentencing Act 1997; support person, of a patient or prospective patient, means a person who provides the patient with ongoing care or support; temporarily detain, a person for the purposes of assessment – see Part 2 of chapter 2; treating medical practitioner means the medical practitioner who is responsible for a patient's treatment or proposed treatment; treatment– see section 6; treatment criteria means the criteria set out in section 40; treatment order means a treatment order made under Division 2 of Part 3 of Chapter 2, and includes an interim treatment order made under section 38; Tribunal means the Tasmanian Civil and Administrative Tribunal;Tribunal guidelines–see section 169;Tribunal staff member means a State Servant whose services are made available to the Tribunal pursuant to section 56 of the Tasmanian Civil and Administrative Tribunal Act 2020; urgent circumstances treatment– see section 55 and section 87; varying, the conditions of any leave, includes adding new conditions and substituting or revoking existing conditions; voluntary inpatient, of an approved facility, means a person who – has been admitted to the facility voluntarily to receive treatment for a mental illness; and is receiving that treatment on the basis of informed consent; voluntary patient means a person who is not an involuntary patient or a forensic patient; youth detainee means a person who is – serving a sentence of detention imposed under the Youth Justice Act 1997 that would, if the person were not a forensic patient, be served in a detention centre; or subject to an order under the Youth Justice Act 1997 or another Act remanding the person to a detention centre.

A note in the text of this Act does not form part of this Act.

For the purposes of this Act – a person is taken to have a mental illness if he or she experiences, temporarily, repeatedly or continually – a serious impairment of thought (which may include delusions); or a serious impairment of mood, volition, perception or cognition; and nothing prevents the serious or permanent physiological, biochemical or psychological effects of alcohol use or drug-taking from being regarded as an indication that a person has a mental illness.

However, under this Act, a person is not to be taken to have a mental illness by reason only of the person's – current or past expression of, or failure or refusal to express, a particular political opinion or belief; or current or past expression of, or failure or refusal to express, a particular religious opinion or belief; or current or past expression of, or failure or refusal to express, a particular philosophy; or current or past expression of, or failure or refusal to express, a particular – sexual preference or orientation; or gender identity or expression; or current or past engagement in, or failure or refusal to engage in, a particular political or religious activity; or current or past engagement in a particular sexual activity or sexual promiscuity; or current or past engagement in illegal conduct; or current or past engagement in an antisocial activity; or particular economic or social status; or membership of a particular cultural or racial group; or intoxication (however induced); or intellectual or physical disability; or acquired brain injury; or dementia; or temporary unconsciousness.

For the purposes of this Act, assessment is the clinical process involved in diagnosing the condition of a person's mental health and, where necessary, identifying the most appropriate treatment.

For the purposes of this Act, treatment is the professional intervention necessary to – prevent or remedy mental illness; or manage and alleviate, where possible, the ill effects of mental illness; or reduce the risks that persons with mental illness may, on that account, pose to themselves or others; or assess a person's mental state.

However, this professional intervention does not extend to – special psychiatric treatment; or a termination of pregnancy; or a procedure that could render a person permanently infertile; or the removal, for transplantation, of human tissue that cannot thereafter be replaced by natural processes of growth or repair; or general health care.

For the purposes of this Act, treatment does not include seclusion, chemical restraint, mechanical restraint or physical restraint.

For the purposes of this Act, an adult is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) unless a person or body considering that capacity under this Act is satisfied that – he or she is unable to make the decision because of an impairment of, or disturbance in, the functioning of the mind or brain; and he or she is unable to – understand information relevant to the decision; or retain information relevant to the decision; or use or weigh information relevant to the decision; or communicate the decision (whether by speech, gesture or other means).

For the purposes of this Act, a child is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) only if a person or body considering that capacity under this Act is satisfied that – the child is sufficiently mature to make the d ecision; and notwithstanding any impairment of, or disturbance in, the functioning of the child's mind or brain, the child is able to – understand information relevant to the decision; and retain information relevant to the decision; and use or weigh information relevant to the decision; and communicate the decision (whether by speech, gesture or other means).

For the purposes of this section – an adult or child may be taken to understand information relevant to a decision if it reasonably appears that he or she is able to understand an explanation of the nature and consequences of the decision given in a way that is appropriate to his or her circumstances (whether by words, signs or other means); and an adult or child may be taken to be able to retain information relevant to a decision even if he or she may only be able to retain the information briefly.

In this section – information relevant to a decision includes information on the consequences of – making the decision one way or the other; and deferring the making of the decision; and failing to make the decision.

For the purposes of this Act, a medical practitioner may regard a person's consent to an assessment, treatment or special psychiatric treatment as being informed consent if satisfied that – the person, at the time of giving the consent, has decision-making capacity; and the person has had a reasonable opportunity to make a considered decision whether or not to give the consent; and the person, having had that opportunity, has given the consent freely by some positive means, not by mere acquiescence.

For the purposes of subsection (1)(b) in its application to a treatment or special psychiatric treatment, a person may be taken to have had the requisite reasonable opportunity if – the treating medical practitioner and the person have discussed the treatment or special psychiatric treatment; and in those discussions the person was given an opportunity to disclose his or her priorities, expectations and fears about the treatment or special psychiatric treatment; and following those discussions the person was given – a clear and candid explanation of the advantages and disadvantages of the treatment or special psychiatric treatment, including information about the associated risks and common or expected side effects; and where applicable, a clear and candid explanation of the alternative treatments that may be available, including information about the associated advantages and disadvantages; and clear and candid answers to any questions the person may have had; and any other information that was considered, by the treating medical practitioner or person, to be of relevant importance and likely to influence the person's decision-making with regard to the treatment or special psychiatric treatment; and a reasonable opportunity to – obtain independent medical or other advice; and consider the advantages and disadvantages of giving the consent.

For the purposes of subsection (1)(c), a person is taken to have given consent freely if the consent is given without coercion, pressure or undue influence, whether from another person or a medication.

For the purposes of subsection (2), the information, explanations or answers must have been in a language and form that the person could understand.

Nothing in this Act is to be taken to prevent a person with decision-making capacity from withdrawing his or her consent to an assessment, treatment or special psychiatric treatment before the assessment, treatment or special psychiatric treatment is made or provided and, if he or she does so, he or she is not to be taken to have given informed consent to the assessment, treatment or special psychiatric treatment.

For the purposes of this Act, informed consent for the assessment or treatment of a child who lacks decision-making capacity may be given by a parent of the child.

To avoid doubt, for subsection (1) the informed consent of one parent is sufficient.

Informed consent for the assessment or treatment of a child who lacks decision-making capacity – may be withdrawn, at any time, by – the parent who gave the informed consent; or if the parent who gave the informed consent is unable to withdraw the consent or has ceased to be a parent of the child, another parent of the child; and if practicable to do so, is to be withdrawn, in accordance with paragraph (a), before the assessment is made or the treatment is provided.

Nothing in this Act is to be taken to prevent the withdrawal, under subsection (3), of consent to an assessment or a treatment before the assessment is made or the treatment is provided.

For the avoidance of doubt, if a parent of a child withdraws consent, under subsection (3), to the assessment or treatment of the child – informed consent is not to be taken to have been given to the assessment or treatment of the child if the consent is withdrawn before the assessment, or the treatment, of the child; and if the informed consent is withdrawn during an assessment or treatment, the assessment or treatment is to be stopped as soon as it is medically safe to do so; and nothing in this Act prevents another parent of the child from providing informed consent, in accordance with this Act, for the same assessment or treatment of the child.

Where this Act requires a notice or other document to be given to a representative or support person of a patient, it means that the document is to be given to someone who is, to the knowledge of the person who has to comply with the requirement, such a representative or support person.

For the purposes of subsection (1), the requisite standard of knowledge is knowledge that is already to hand or readily discoverable on reasonable inquiry, not knowledge that might only be discoverable after arduous or prolonged inquiry.

Where this Act requires an action to be taken, then, unless the contrary intention appears, the action must be taken as soon as practicable.

For the purposes of subsection (1) – it is irrelevant whether the requirement is mandatory or directory; and it is irrelevant how the requirement is expressed or described.