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Mental Health and Wellbeing Bill 2022

Introduction Print

EXPLANATORY MEMORANDUM

General

In March 2021, the Royal Commission into Victoria's Mental Health System

(Royal Commission) delivered its final report, setting out a 10-year plan for

reform including delivery of new legislation in 2022.

The Bill gives effect to the Royal Commission's recommendation for a new

Mental Health and Wellbeing Act which is essential to promote good mental

health and wellbeing for all Victorians and reset the legislative foundation

underpinning our mental health and wellbeing system.

The Royal Commission said that the objectives of the new Mental Health and

Wellbeing Act should reflect the aspirations of the future mental health and

wellbeing system. These new objectives include frameworks for supported

decision making, recovery‑oriented practice, and human rights protections.

These are critical and foundational to a system that can permit practices such

as compulsory treatment.

The Royal Commission saw as imperative that new legislation be enacted in

2022. The Bill establishes key new elements of the system architecture, such

as the Mental Health and Wellbeing Commission and regional mental health

and wellbeing boards, to guide the system across the reform journey.

The Royal Commission did recommend that some parts of the Mental

Health Act 2014 not be extensively re-enacted by this Bill, but rather await

the recommended 5–7-year review of the new Act. This includes, for

example, the role of the Chief Psychiatrist and the Mental Health Tribunal.

This is an enabling Bill—it sets up the new system architecture, alongside the

necessary powers and functions for entities and others in the new system.

While the Bill includes the fundamental powers and functions that can only

be granted by the Parliament, there are parts of the service system that are

still necessarily being designed. The use of delegated legislation and other

instruments—regulations, codes of practice, memoranda of understanding,

protocols, directions and guidelines—will provide the required flexibility and

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responsiveness necessary as we work together to design and roll out the new

service system, and to continue to work with our partners in reform on the

next stages of work.

The Bill, consistent with the recommendations of the Royal Commission,

repeals and replaces the Mental Health Act 2014.

Rights-based mental health principles

Current human rights practice and thinking has informed the protection of

rights under this Bill. Its operation sits alongside the Charter of Human

Rights and Responsibilities Act 2006. The obligations of the Charter will

apply to entities and service providers under the Bill.

The introduction of modernised rights-based mental health principles will

guide service providers and decision makers to support the dignity and

autonomy of people living with mental illness or psychological distress;

ensure people are involved in decisions about their treatment, care and

support; recognise the role of families, carers and supporters; and ensure the

service system responds to the diverse needs and preferences of Victorians.

Statement of Recognition

The Bill also includes a Statement of Recognition—

• to acknowledge the Victorian Government's commitment to

Aboriginal self‐determination in achieving positive mental

health and wellbeing outcomes ; and

• to recognise the key role of the Aboriginal health sector in the

delivery of Aboriginal mental health and wellbeing services;

and

• to support healing, acknowledge trauma and provide a

foundation for future legislative reform to strengthen

Aboriginal self-determination within mental health and

wellbeing services.

The proposed inclusion of the Statement will progress a key reform priority

of the Aboriginal Health and Wellbeing Partnership Forum to enshrine

commitments to Aboriginal self-determination in Victorian government

health statutes for the first time.

This also aligns with Victoria's commitment to the National Agreement on

Closing the Gap and supports two of the National Agreement's key outcomes:

shared decision-making and building the community-controlled sector.

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Protection of rights

The Royal Commission stated that uptake of safeguards, such as advance

statements, nominated persons and supported decision-making practices

should be increased. It also found that non-legal advocacy is highly valued

by consumers, effective in putting supported decision making into practice,

and may drive down the use of coercive practices. However, not all

consumers are aware of the availability of advocacy support or able to access

it.

Accordingly, the Bill includes measures to increase uptake of safeguards that

promote supported decision-making and the agency and autonomy of people

living with mental illness and establishes in legislation an "opt-out" mental

health advocacy service.

Broadened scope

The Bill brings a wide range of new mental health and wellbeing services

into scope—beyond the mental health services primarily delivered through

public health services and hospitals, under the Mental Health Act 2014, to

include, for example, providers of wellbeing services and Chief Psychiatrist

oversight of clinical mental health services provided in custodial settings.

The Bill also responds to the Royal Commission's call for greater diversity of

service delivery with a focus on community-based treatment, care and

support.

New entities

Importantly, the Bill establishes key new entities and offices for the

governance and oversight of the mental health and wellbeing system.

This includes: the new Mental Health and Wellbeing Commission

(the Commission); regional mental health and wellbeing boards; Regional

and Statewide multiagency panels; and the Chief Officer for Mental Health

and Wellbeing.

The Royal Commission recommended the establishment of a new

independent oversight body—the Mental Health and Wellbeing

Commission—to provide state-wide oversight of the mental health and

wellbeing system.

The Bill establishes the Commission as an independent statutory body

reporting directly to Parliament and comprising of a Chair Commissioner and

three commissioners to be appointed by Governor in Council. The

Commissioners will include people with lived experience of mental illness or

psychological distress, and with lived experience as a family member, carer

or supporter.

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The Commission will incorporate the existing complaints function of the

Mental Health Complaints Commissioner and have a suite of broader powers,

including an "own initiative" investigation power.

The Commission will be empowered to hold government to account for the

performance, quality and safety of the mental health and wellbeing system;

the implementation of recommendations made by the Royal Commission;

and ensuring the mental health and wellbeing system supports and promotes

the health and wellbeing of consumers, families, carers and supporters, and

the mental health and wellbeing workforce.

Further, in line with the rights-based framing of the Bill, the Commission will

promote, support and protect the rights of consumers, families, carers and

supporters. The Commission will report directly to Parliament as it sees fit.

The Commission will also report on non-compliance with the Act and report

to the Health Secretary any matters arising in relation to a mental health and

wellbeing service that pose a serious risk of harm to a person or the

community.

The Bill will legislate for regional mental health and wellbeing boards, as a

next step towards the Royal Commission's vision for strong regional

governance.

The Bill will also legislate for the role of the Chief Officer for Mental Health

and Wellbeing in the Department of Health, reporting directly to the Health

Secretary, to elevate the importance of the mental health and wellbeing

system within the Department.

The Bill also establishes a new statutory entity, Youth Mental Health and

Wellbeing Victoria (YMHWV).

The Royal Commission found serious issues affecting young Victorians in

the mental health system and advised that substantial reforms were needed to

ensure Victoria's future youth mental health and wellbeing system can serve

the needs of young people and support them to live a life they value.

Since the Royal Commission's report, the ongoing impacts of the pandemic

have exacerbated these issues for young people. The new entity meets the

urgent need to expand on the work of the Royal Commission and provide

system-wide leadership in youth mental health—and to give agency to the

voices of young Victorians to share their mental health and wellbeing

experience.

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YMHWV will champion the voice of young people, including through

membership of young people with lived experience on its governance board.

The entity will also be advised by a non-statutory Youth Mental Health and

Wellbeing Council, made up of young representatives with diverse

backgrounds and experience.

YMHWV will support strong strategic partnerships with specific youth

mental health service providers and oversee those services to ensure safe and

high-quality care for young people. This model will complement, and not

overlap with, the established, broader and vital work done by other youth

mental health services across Victoria.

Along with the Victorian Collaborative Centre for Mental Health and

Wellbeing established pursuant to the Royal Commission's interim report

recommendation, the entities created by the Bill are important foundations for

rebuilding the mental health system.

Compulsory treatment and restrictive interventions

The Royal Commission recognised that for some people the experience of

compulsory treatment has been a damaging and traumatic one and that one of

the results of the current broken system has been an overreliance on the use

of compulsory treatment to provide people with help and support.

The Royal Commission therefore called for a reduction in the use of

compulsory treatment and measures to mitigate against its impact.

The Bill retains the criteria for compulsory treatment of the Mental Health

Act 2014. An independent review will undertake a comprehensive

consideration of compulsory treatment criteria and the alignment of

decision-making laws and make recommendations to government in 2023 to

inform future amending legislation.

The Royal Commission set a target for the elimination of restrictive

interventions (seclusion and restraint) within 10 years. In doing so, the Royal

Commission recognised that much of the work to reduce the rates and

impacts of restrictive interventions will involve the implementation of the

broader recommendations for service system design and oversight as well as

practice and culture change.

The Bill will continue to regulate the use of restrictive interventions and, for

the first time, regulate the use of chemical restraint.

The Bill acknowledges that restrictive interventions offer no inherent

therapeutic benefit and confirms the aim of elimination within 10 years,

while including considerations for authorisation and recording requirements.

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Emergency responses to people experiencing mental health crises in the

community

The Royal Commission recommended that government ensure emergency

service responses to people experiencing a mental health crisis in the

community are led, wherever possible, by health professionals rather than

police.

The Royal Commission also recommended an increased range of options for

mental health crisis responses—including 24-hour advice lines, outreach

teams, and new peer-led crisis and respite centres.

The new responsive service system—aimed at enabling people to seek help

earlier and closer to home—will ameliorate the risk of people falling through

the cracks, often ending up in emergency departments.

The provisions of the Mental Health Act 2014 have been redesigned to

better protect the rights of people experiencing mental health crises in the

community and increase the efficient use of emergency services.

The Bill reforms the way people who are in crisis in the community can get

support. Rather than police being relied upon as the first to respond, the Bill

allows for a health led response.

To enable this new response, some health professionals will now be

authorised to take a person into care and control for the purposes of arranging

for the person to be examined under Chapter 4 of the Bill. .

All authorised persons are obliged to give proper consideration to the mental

health and wellbeing principles; and specific principles requiring these

powers must also be used in the least restrictive way possible and, where

practicable, led by a health professional. If it is not reasonably practicable or

safe that they be led by a health professional, the exercise of powers should

be informed by the advice of a health professional.

These principles are important to support the cultural change envisioned by

the Royal Commission and will contribute to better outcomes for people

experiencing mental health crises in the community.

Limitation of personal liability for certain decision-makers

In the context of new principles, the Bill will require decisionmakers to make

decisions that affirm the rights of people to exercise the dignity of risk. In

doing so, they must balance the potential harms of deciding not to impose a

restriction on a person's liberty with the potential harm that may be caused by

a decision to restrict a person's rights.

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The Bill provides for limitations of personal liability for certain people

making decisions or performing functions under the Bill, including under the

new health led response, so they can make these difficult decisions and will

not be personally liable for acting in good faith and in accordance with

relevant Chapters of the Bill.

The Bill provides clarification of the ways in which information relating to

mental health and wellbeing can be collected and used, with a focus on

consent-based information sharing, and exceptions to support integrated

service delivery or where necessary to avoid a serious threat to safety.

The Bill also clarifies and promotes the circumstances when information can,

and should be, shared with families, carers and supporters.

Clause Notes

Chapter 1—Preliminary

Part 1.1—Purpose and commencement

Clause 1 sets out the main purposes of the Bill. These reflect the

significant reforms recommended by the Royal Commission, and

establishment of the various bodies under the Bill, including the

newly created Youth Mental Health and Wellbeing Victoria.

Clause 2 is the commencement provision. It provides that the Bill will

come into operation on a day or days to be proclaimed or by

default on 1 September 2023, if not proclaimed earlier.

Implementing the Bill will require significant work.

Accordingly, the Bill will be supported by an extensive

implementation program conducted by the Department following

its passage and prior to commencement.

The implementation program will be complex, but it is essential

to the effective operation of the Bill and the important initiatives

contained in it. The implementation program will first involve

the development, drafting and making of supporting—

• suites of statutory rules (regulations) and subordinate

instruments; and

• key non statutory documents such as guidelines, codes

of practice, protocols, memoranda of understanding and

circulars.

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Development of those documents will be informed by

stakeholder engagement including collaboration with the lived

experience community and the mental health and wellbeing

workforce.

In addition, the Department's Bill implementation program will

require a range of critical business-related activities to be

completed to operationalise the Bill and its supporting

subordinate legislation in the most effective way. These

measures include the following—

• establishment of new entities;

• modification of existing entities;

• appointments;

• communications;

• training;

• information technology changes;

• delegations and authorisations;

• other essential operational activities.

Part 1.2—Interpretation

Chapter 1 includes a number of important definitions. The Bill significantly

increases the scope of the Bill beyond Victoria's public specialist mental

health services primarily delivered by public health services and public

hospitals, community health organisations and non-government organisations

covered by the Mental Health Act 2014.

The Royal Commission recommended increased diversity of providers, with

a greater emphasis on community-based treatment, care and support and

expanded scope of oversight to include all providers funded by the Victorian

Government to deliver mental health and wellbeing treatment, care and

support.

In line with this approach, the Bill defines a broader set of in-scope services

than the Mental Health Act 2014.

The Bill defines a mental health and wellbeing service as a professional

service performed for the primary purpose of—

• improving or supporting a person's mental health and

wellbeing; or

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• assessing or providing care or support to a person in relation to

their mental illness or psychological distress; or

• providing care and support to a person in relation to their role

as a family member, carer or supporter of a person with mental

illness or psychological distress.

A mental health and wellbeing service provider is defined as an entity that—

• receives funding from the State of Victoria to provide a mental

health and wellbeing service; and

• employs or engages a mental health and wellbeing professional

for the purposes of providing the mental health and wellbeing

service.

A service provider only falls within the scope of the definition, to the extent

that it is providing a mental health and wellbeing service. For example, the

Victorian Government may fund a not-for-profit organisation to provide in-

home respite services for persons with mental illness, as well as fund the

organisation to provide family services and housing and homelessness

services. The organisation is only a mental health and wellbeing service

provider when providing the respite service for persons with mental illness.

The Bill includes a power for the Minister to, by regulation, both prescribe a

service (or class of service) as exempt from the definition or to prescribe a

service (or class of service) as being included where it does not otherwise

meet the criteria or if required for certainty. The Bill will also include a

power for the Minister to prescribe a service provider (or class of service

provider) as exempt from the definition.

The requirement that a service provider must employ or engage a mental

health and wellbeing professional adds further clarity to the scope of the

definition. A mental health and wellbeing professional is defined as

a person who performs duties in connection with the provision of mental

health and wellbeing services as defined in the Bill and is—

(a) a registered medical practitioner; or

(b) a registered psychologist; or

(c) a registered nurse or enrolled nurse; or

(d) a registered paramedic; or

(e) a registered occupational therapist; or

(f) a social worker of a prescribed class; or

(g) a counsellor of a prescribed class; or

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(h) a person employed or engaged in a prescribed role that requires

the person to have personal experience with mental illness or

experience as a carer of a person who is living with mental

illness; or

(i) a psychosocial support worker of a prescribed class; or

(j) an allied health professional of a prescribed class.

The Royal Commission strongly recognised the benefits of the lived

experience workforce and their central role in the new system. It also

identified that in relation to all individuals in leadership roles, in the reformed

mental health and wellbeing system deliberate efforts are required to build

and strengthen the existing capabilities and skills of people with lived

experience of mental illness or psychological distress so that they can thrive

as leaders and decision makers.

The Bill will recognise this by identifying those engaged in lived experience

roles as mental health and wellbeing professionals. More broadly, the

definition recognises the changing nature and expanded scope of the new

service system by capturing many new professions working within the

system.

Being in-scope as a mental health and wellbeing service provider means that

a mental health and wellbeing service provider is subject to obligations in

relation to the objectives and principles of the Bill, information sharing

provisions, and oversight by the new Commission and, if a provider of

clinical mental health services, the Chief Psychiatrist.

As proposed by the Royal Commission, mental health and wellbeing services

provided in custodial settings are included in scope of the Bill. The Bill

amends the Children, Youth and Families Act 2005 and the Corrections

Act 1986 to enable the Chief Psychiatrist and the Commission to perform

functions and exercise powers in relation to the delivery of mental health and

wellbeing services to a person who is on remand or in a correctional or youth

justice setting.

This will be subject to provisions ensuring the good order and security of the

facility (to be supplemented by memorandums of understanding). It is not

intended that anything else in the Bill will interfere with existing powers

under the Corrections Act 1986 or existing powers of Victoria Police.

The Bill defines designated mental health service. As in the Mental Health

Act 2014, this subset of mental health and wellbeing service providers—able

to provide compulsory assessment and treatment and, in limited defined

circumstances, use restrictive interventions—will be included in this

definition or prescribed.

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Chapter 1 also contains the objectives and principles. The principles in the

Bill are rights-based and, among other things, prioritise the views,

preferences and values of people living with mental illness or psychological

distress, as well as families, carers and supporters; and the Royal

Commission's ambition of reducing the use of compulsory treatment and

reducing, with the ultimate aim of eliminating, the use of restrictive

interventions.

These principles have been informed by extensive feedback obtained through

the public consultation process.

The Royal Commission identified that the existing mental health principles

have not been well integrated in the service system and indicated that the

requirement that providers "must have regard to" the principles, in the

Mental Health Act 2014, has not been sufficient to embed the principles in

practice.

The Bill sets a higher standard of accountability to embed the principles into

daily practice, requiring mental health and wellbeing service providers to

make "all reasonable efforts to comply" with and also give "proper

consideration" to the principles—thereby aligning with the test in the Charter

of Human Rights and Responsibilities.

Three sets of principles are found across the Bill—

the mental health and wellbeing principles, which are applicable to

mental health and wellbeing providers and relevant entities

performing functions or exercising powers under the Bill;

the decision-making principles for treatment and interventions,

which certain people making a decision or exercising a power in

relation to compulsory treatment and restrictive interventions must

give proper consideration to when making that decision or

exercising that power, as required in the circumstances;

information sharing principles, which people making a decision or

exercising a power related to the sharing, disclosure, use or

collection of personal information or health information must give

proper consideration when making that decision or exercising that

power.

The Commission will issue guidance material to mental health and wellbeing

service providers to promote compliance; and will deal with complaints in

relation to non-compliance with the principles. Mental health and wellbeing

service providers will also be required to report on how they are responding

to the mental health principles in their annual reports.

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Entities established under the Bill are also required to give proper

consideration to the principles.

Clause 3 defines various words and expressions used in the Bill. Many of

the defined terms rely on cross references to terms used in other

legislation. Those that are particular to the Bill include but are

not limited to advance statement of preferences, assessment

order, authorised mental health practitioner, authorised person,

bodily restraint, capacity to give informed consent, chemical

restraint, chief psychiatrist, clinical mental health service

provider, consumer, designated mental health service,

electroconvulsive treatment, forensic patient, inpatient,

intensive monitored supervision, mental health advocate,

mental health and wellbeing service, mental health and

wellbeing professional, mental illness, nominated support

person, restrictive intervention, seclusion, security patient,

treatment and treatment order.

Clause 4 sets out the meaning of mental illness as a medical condition that

is characterised as a significant disturbance of thought, mood,

perception or memory.

The clause sets out a number of specific circumstances in which a

person is not to be considered to have a mental illness. The

language in this clause has been modernised, and no longer

contains references to "sexual promiscuity" or "consumption" of

alcohol.

Clause 5 provides that a person receives treatment for mental illness if

professional skill is used to remedy or alleviate the person's

mental illness or to alleviate the symptoms and reduce the ill

effects of the person's mental illness. The clause specifies that

treatment includes electroconvulsive treatment and neurosurgery.

The clause expressly states that detention is not treatment and

that for the purposes of the Bill treatment refers to treatment for

mental illness, as distinguished from "medical treatment".

Clause 6 provides that appropriate supports are measures which can

reasonably be provided to a person to assist the person to make

decisions and participate in decision-making, understand

information and their rights or to communicate their views,

preferences, questions, or decisions. This clause provides a

number of examples of appropriate supports.

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Clause 7 provides that where an entity is required to communicate with a

consumer , a complainant or a consumer's family, carer, guardian,

nominated support person or support person under the Bill, the

entity must take reasonable steps to provide appropriate supports

and explain the content of the communication and answer any

questions as clearly and completely as possible. For the purpose

of providing appropriate supports, the entity must take reasonable

steps to determine what appropriate supports would assist the

person.

The clause provides examples on what reasonable steps may

include.

Subclause (4) provides that if a person is incapable of

understanding information being communicated, the entity

providing the information must ensure reasonable further

attempts are made to provide the information or explanation

when the person is able to understand the information or

explanation at a later time.

This clause, alongside Clause 6, creates obligations on entities

with a view to ensuring that people are supported to the greatest

extent reasonably possible to participate in their own treatment,

care and recovery, including when their participation requires

additional measures and supports to be put in place.

This clause includes a note that refers to the definition of entity in

section 38 of the Interpretation of Legislation Act 1984 which

to includes a person and an unincorporated body.

Clause 8 provides that where a person is required to be examined under the

Bill, the person must be examined in person if practicable or, if it

is not practicable, then remotely.

Subclause (2) provides that a person determining whether it is

practicable to conduct an examination in person must have regard

to any relevant guidelines issued by the chief psychiatrist.

This clause is included to provide for circumstances in which a

person cannot be examined face to face, and to eliminate doubt

that an examination that is conducted remotely (for example

using videoconferencing technology) is an examination for the

purposes of the Bill.

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Clause 9 requires a public entity, the Health Secretary, chief officer, chief

psychiatrist and the Commission, in performing a function or

exercising a power under the Bill, to liaise with other authorities

and bodies to avoid unnecessary duplication of inquiries or other

actions and to facilitate the coordination and expedition of those

inquiries or actions.

Given the breadth of the new specialist entities and functions, it

is expected that each agency will support collaboration and

efficiency, avoid duplication of efforts and focus on avoiding

unnecessary burden on providers.

Clause 10 provides for the interpretation of the Bill and the mental health

and wellbeing principles.

Subclause (1) reflects the primacy of the mental health and

wellbeing principles in the interpretation of the Bill, noting that a

construction that would promote the mental health and wellbeing

principles is to be preferred to a construction that would not.

Subclauses (2) and (3) stipulate the limits of legal rights that

accrue under the Bill, notably that the mental health and

wellbeing principles, the decision making principles for treatment

and interventions and the information sharing principles do not

create a legal right in any person, and that their contravention

alone will not give rise to a civil cause of action or an action in

damages.

Subclause (4) is intended to confirm that the limitation on causes

of action arising from a contravention of the principles does not

limit any right to judicial review, or any power to commence a

proceeding, or any cause of action or right to damages a person

may otherwise have under the Bill.

Clause 11 provides that the Bill is to bind the Crown.

Part 1.3—Objectives

Clause 12 sets out the objectives of the Bill.

The Royal Commission said that a new Mental Health and

Wellbeing Act's objectives should reflect the aspirations of the

future mental health and wellbeing system. These new objectives

include frameworks of supported decision making,

recovery‑oriented practice, and human rights protections, which

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should be the touchstones of a system that can permit practices

such as compulsory treatment.

The objectives read—

"In pursuit of the highest attainable standard of mental health and

wellbeing for the people of Victoria, this Act has the following

objectives—

(a) to promote conditions in which people can—

(i) experience good mental health and wellbeing;

and

(ii) recover from mental illness or psychological

distress;

(b) to reduce inequities in access to, and the delivery of,

mental health and wellbeing services;

(c) to provide for comprehensive, compassionate, safe and

high-quality mental health and wellbeing services that

promote the health and wellbeing of people living with

mental illness or psychological distress and that—

(i) are accessible; and

(ii) respond in a timely way to people's needs and

recognise that these needs may vary over time;

and

(iii) are consistent with a person's treatment, care,

support and recovery preferences wherever

possible; and

(iv) are available early in life, early in onset and early

in episode; and

(v) recognise and respond to the diverse

backgrounds and needs of the people who use

them; and

(vi) provide culturally safe and responsive services to

Aboriginal and Torres Strait Islander people in

order to support and strengthen connection to

culture, family, community and Country; and

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(vii) connect and coordinate with other support

services to respond to the broad range of

circumstances that influence mental health and

wellbeing; and

(viii) include a broad range of treatment options with

the aim of providing access to the same treatment

and support irrespective of whether a person is

receiving voluntary or compulsory treatment;

and

(ix) include a broad and accessible range of voluntary

treatment and support options—

(A) to enable a reduction in the use of

compulsory assessment and treatment;

and

(B) to enable a reduction in the use of

seclusion and restraint with the aim of

eliminating its use within 10 years;

(d) to promote continuous improvement in the quality and

safety of mental health and wellbeing services including

by ensuring that the experiences of people living with

mental illness or psychological distress, and the people

receiving treatment, their carers, families and

supporters, are at the centre of changes in practices and

service delivery and the design and evaluation of

systems;

(e) to protect and promote the human rights and dignity of

people living with mental illness by providing them

with assessment and treatment in the least restrictive

way possible in the circumstances;

(f) to recognise and respect the right of people with mental

illness or psychological distress to speak and be heard in

their own voices, from their own experiences and from

within their own communities and cultures;

(g) to recognise, promote and actively support the role of

families, carers and supporters in the care, support and

recovery of people living with mental illness or

psychological distress;

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(h) to promote and support the health and wellbeing of

families, carers and supporters of people living with

mental illness or psychological distress;

(i) to recognise and value the critical role of the clinical

and non-clinical mental health and wellbeing workforce

and to support and promote the health and wellbeing of

members of that workforce;

(j) to promote the mental health and wellbeing principles.".

Part 1.4—Statement of recognition and acknowledgement of

treaty process

Clause 13 is among the first statements of recognition included in a Bill

introduced into the Victorian Parliament.

The statement of recognition reads—

"(1) The Parliament recognises that Aboriginal people in

Victoria are First Nations people of Australia and

acknowledges their enduring connection to Country,

kin, land and culture.

(2) The Parliament acknowledges the following—

(a) that Aboriginal self-determination serves as a

foundational principle to improve mental health

and wellbeing outcomes of Aboriginal people in

Victoria;

(b) the lasting impact of laws, practices and policies

on the mental health and wellbeing outcomes of

Aboriginal and Torres Strait Islander people

since colonisation and enduring to this day;

(c) cultural dislocation, oppression, intergenerational

trauma, lack of healing, systemic racism,

institutionalised inequality and the loss of land,

lore and language continue to harm the mental

health and wellbeing of Aboriginal people in

Victoria today;

(d) the strength of Aboriginal people, culture,

kinship and communities in the face of historical

and ongoing injustices;

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(e) Aboriginal people's ongoing connection to

culture, community and Country and the

importance of this connection for the mental

health and wellbeing of Aboriginal people in

Victoria.

(3) It is the intention of Parliament that the mental health

system recognises, respects and supports the distinct

cultural rights of Aboriginal people and their right to

receive culturally safe holistic mental health and

wellbeing services throughout Victoria.

(4) The Parliament supports initiatives which address the

ongoing mental health inequalities experienced by

Aboriginal people in Victoria.

(5) The Parliament recognises the essential role of

Aboriginal community controlled health organisations

in meeting the mental health and wellbeing and care

needs of Aboriginal people in Victoria.

(6) The Parliament supports the development of future

reforms which further Aboriginal self-determination

within mental health and wellbeing services in

Victoria.".

Subclause (1) sets out Parliament's statement of recognition that

Aboriginal people in Victoria are First Nations people of

Australia and acknowledges both their enduring connection to

Country, kin, land and culture, and the importance of that

connection to the mental health and wellbeing of Aboriginal

people in Victoria.

Subclause (2) explicitly identifies the ongoing impact of laws,

practices and policies on the mental health and wellbeing

outcomes of Aboriginal and Torres Strait Islander people since

colonisation, and specifically names cultural dislocation,

oppression, intergenerational trauma, lack of healing, systemic

racism, institutionalised inequality and the loss of land, lore and

language as continuing harms to the mental health and wellbeing

of Aboriginal people in Victoria.

Subclause (3) sets out Parliament's intention to uphold cultural

rights of Aboriginal people, and the right to receive culturally

safe holistic mental health and wellbeing services.

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Subclause (4) makes explicit the Parliament's support for

initiatives that may address the ongoing inequalities in mental

health and wellbeing experienced by Aboriginal people in

Victoria.

Subclause (5) explicitly names and acknowledges the importance

of Aboriginal community controlled health organisations in

meeting the mental health and wellbeing needs of Aboriginal

people in Victoria.

Subclause (6) states the support of the Parliament for

development of future reforms which promote Aboriginal self-

determination in mental health and wellbeing services.

Clause 14 is among the first acknowledgements of treaty process included

in a Bill introduced into the Victorian Parliament.

The acknowledgement reads—"The Parliament acknowledges

Victoria's treaty process and the aspiration of Aboriginal people

to achieve increased autonomy, Aboriginal decision making and

control of planning, funding and administration of services for

Aboriginal people, including through self-determined Aboriginal

representative bodies established through treaty.".

Part 1.5—Mental health and wellbeing principles

Clause 15 provides that this Part sets out the mental health and wellbeing

principles. It is the intention of Parliament that the mental health

and wellbeing principles are seen as crucial in the pursuit of the

Bill's primary objective, which is to achieve the highest attainable

standard of mental health and wellbeing for the people of

Victoria.

Clause 16 sets out the dignity and autonomy principle, requiring that the

rights, dignity and autonomy of a person living with mental

illness or psychological distress is to be promoted and protected.

The principle reads—"The rights, dignity and autonomy of a

person living with mental illness or psychological distress is to

be promoted and protected and the person is to be supported to

exercise those rights.".

The dignity and autonomy principle places the person's rights,

dignity and autonomy above therapeutic outcomes or the concept

of the best interests of the person.

20

Clause 17 sets out the diversity of care principle, requiring that a person be

provided with access to a diverse mix of care and support

services.

The principle reads—"A person living with mental illness or

psychological distress is to be provided with access to a diverse

mix of care and support services. This is to be determined, as

much as possible, by the needs and preferences of the person

living with mental illness or psychological distress including

their accessibility requirements, relationships, living situation,

any experience of trauma, level of education, financial

circumstances and employment status.".

This diversity of care principle recognises that a person's care and

support needs and preferences are diverse, and that their

individual circumstances may call for a range of services. The

mix of care and support services is to be determined as much as

possible by the needs and preferences of the person receiving the

services.

Clause 18 sets out the least restrictive principle.

The principle reads—"Mental health and wellbeing services are

to be provided to a person living with mental illness or

psychological distress with the least possible restriction of their

rights, dignity and autonomy with the aim of promoting their

recovery and full participation in community life. The views and

preferences of the person should be key determinants of the

nature of this recovery and participation.".

This clause recognises that what is experienced as more or less

restrictive may vary between persons , and that the views and

preferences of the person receiving services should be key

determinants of the nature of their own recovery and

participation.

Clause 19 sets out the supported decision making principle, recognising that

people who are supported to make decisions are more likely to

participate in their own assessment, treatment and recovery,

including when they are receiving compulsory treatment.

The principle reads—"Supported decision making practices are

to be promoted. Persons receiving mental health and wellbeing

services are to be supported to make decisions and to be

involved in decisions about their assessment, treatment and

recovery including when they are receiving compulsory

21

treatment. The views and preferences of the person receiving

mental health and wellbeing services are to be given priority.".

This clause is intended to reinforce the primacy and priority of a

person's views and preferences when they are receiving mental

health and wellbeing services, and creates obligations on service

providers with a view to achieving this.

Clause 20 sets out the family and carers principle.

The principle reads—"Families, carers and supporters (including

children) of a person receiving mental health and wellbeing

services are to be supported in their role in decisions about the

person's assessment, treatment and recovery.".

This clause recognises the importance and centrality of the role

of families, carers and supporters in a person's assessment,

treatment and recovery.

Clause 21 sets out the lived experience principle, which recognises the

importance and value of the contribution of people with lived

experience as leaders and partners in the mental health and

wellbeing system.

The principle reads—"The lived experience of a person with

mental illness or psychological distress and their carers, families

and supporters is to be recognised and valued as experience that

makes them valuable leaders and active partners in the mental

health and wellbeing service system.".

The lived experience principle reflects the Parliament's intention

that people with lived experience play a crucial role in the design

and implementation of improvement and innovation in the mental

health and wellbeing system.

Clause 22 sets out the health needs principle, requiring a holistic approach

to health and wellbeing, including that medical and health needs

of people living with mental illness or psychological distress

should be identified and responded to.

The principle reads—"The medical and other health needs of

people living with mental illness or psychological distress are to

be identified and responded to, including any medical or health

needs that are related to the use of alcohol or other drugs. In

doing so, the ways in which a person's physical and mental

health needs may intersect should be considered.".

22

The health needs principle explicitly refers to medical or health

needs related to use of alcohol or other drugs, and requires

consideration of how a person's physical and mental health needs

may intersect. This reflects the importance of a holistic,

integrated approach, and is intended to prevent people who live

with substance use or addiction being precluded from accessing

treatment, care or support.

Clause 23 sets out the dignity of risk principle, which affords a person the

right to make decisions about their own assessment, treatment

and recovery that may be considered by others to be risky,

unwise, or ill-advised.

The principle reads—"A person receiving mental health and

wellbeing services has the right to take reasonable risks in order

to achieve personal growth, self-esteem and overall quality of

life. Respecting this right in providing mental health and

wellbeing services involves balancing the duty of care owed to

all people experiencing mental illness or psychological distress

with actions to afford each person the dignity of risk.".

While the dignity of risk principle is balanced against a duty of

care owed to people experiencing mental illness or psychological

distress, this principle is intended to alter the balance of power

between medical authority and persons having mental illness in

the direction of respecting their inherent dignity and human

rights, and to weigh against a paternalistic or overprotective

approach to the provision of services.

Clause 24 sets out the wellbeing of young people principle, requiring that

treatment and support be provided to young people in age and

developmentally appropriate ways, and that when services are

provided to young people under the Bill, their health, wellbeing

and autonomy be promoted.

The principle reads—"The health, wellbeing and autonomy of

children and young people receiving mental health and

wellbeing services are to be promoted and supported, including

by providing treatment and support in age and developmentally

appropriate settings and ways. It is recognised that their lived

experience makes them valuable leaders and active partners in

the mental health and wellbeing service system.".

23

This clause explicitly acknowledges that the lived experience of

young people makes them valuable leaders and active partners in

the mental health and wellbeing system. It is also intended that

the principle reflect the need to provide information to children

and young people, which is necessary to support their autonomy

and right to participate in decisions affecting them.

Clause 25 sets out the diversity principle, requiring that a person's

individual characteristics be considered in the delivery of

services that will be responsive to the person's needs.

The principle reads—

"(1) The diverse needs and experiences of a person receiving

mental health and wellbeing services is to be actively

considered noting that such diversity may be due to a

variety of attributes including any of the following—

(a) gender identity;

(b) sexual orientation;

(c) sex;

(d) ethnicity;

(e) language;

(f) race;

(g) religion, faith or spirituality;

(h) class;

(i) socioeconomic status;

(j) age;

(k) disability;

(l) neurodiversity;

(m) culture;

(n) residency status;

(o) geographic disadvantage.

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(2) Mental health and wellbeing services are to be provided

in a manner that—

(a) is safe, sensitive and responsive to the diverse

abilities, needs and experiences of the person

including any experience of trauma; and

(b) considers how those needs and experiences

intersect with each other and with the person's

mental health.".

Subclause (1) sets out a number of attributes that are likely to

contribute to a person's experience of diversity, including gender

identity, sexual orientation, sex, ethnicity, language, race,

religion faith or spirituality, class, socioeconomic status, age,

disability, neurodiversity, culture, residency status and

geographic disadvantage.

Subclause (2) introduces the concept of intersectionality into the

Bill, requiring that services be delivered in a way that considers

the intersection of a person's personal attributes and mental

health and how they may interact with and compound each other.

This clause requires that mental health and wellbeing services be

provided safely, sensitively and responsively to a person's diverse

needs and experiences.

Clause 26 sets out the gender safety principle, which recognises that people

may have specific safety needs or concerns based on their gender.

The principle reads— "People receiving mental health and

wellbeing services may have specific safety needs or concerns

based on their gender. Consideration is therefore to be given to

these needs and concerns and access is to be provided to services

that—

(a) are safe; and

(b) are responsive to any current experience of family

violence and trauma or any history of family violence

and trauma; and

(c) recognise and respond to the ways gender dynamics

may affect service delivery, treatment and recovery; and

(d) recognise and respond to the ways in which gender

intersects with other types of discrimination and

disadvantage.".

25

This clause is intended to promote safe and responsive service

delivery, having regard to the specific needs of people of all

genders, including trans and non-binary people. It is intended

that this clause, alongside clause 25, require matters of gender

safety to be considered through an intersectional lens.

Clause 27 sets out the cultural safety principle, in recognition that there is

progress to be made in ensuring that mental health and wellbeing

services are culturally safe and appropriate for all people.

The principle reads—

"(1) Mental health and wellbeing services are to be culturally

safe and responsive to people of all racial, ethnic, faith-

based and cultural backgrounds.

(2) Treatment and care is to be appropriate for, and

consistent with, the cultural and spiritual beliefs and

practices of a person living with mental illness or

psychological distress. Regard is to be given to the

views of the person's family and, to the extent that it is

practicable and appropriate to do so, the views of

significant members of the person's community. Regard

is to be given to Aboriginal and Torres Strait Islander

people's unique culture and identity, including

connections to family and kinship, community, Country

and waters.

(3) Treatment and care for Aboriginal and Torres Strait

Islander peoples is, to the extent that it is practicable

and appropriate to do so, to be decided and given having

regard to the views of elders, traditional healers and

Aboriginal and Torres Strait Islander mental health

workers.".

Subclause (1) requires that mental health and wellbeing services

are to be safe and responsive to people of all racial, ethnic, faith-

based and cultural backgrounds.

Subclause (2) requires that treatment and care be provided in

ways which are appropriate for and consistent with a person's

cultural and spiritual beliefs and practices. It is made explicit

that regard is to be had to Aboriginal and Torres Strait Islander

people's unique culture and identity, including connections to

family and kinship, community, Country and waters.

26

Subclause (3) states that treatment and care for Aboriginal and

Torres Strait Islander people should, wherever possible, be

decided and given having regard to the views of elders,

traditional healers and Aboriginal and Torres Strait Islander

mental health workers.

Clause 28 sets out the wellbeing of dependents principle, in recognition of

the unique needs of children, young people and other dependants

of people receiving mental health and wellbeing services, and

requiring that their wellbeing and safety be protected.

The principle reads—"The needs, wellbeing and safety of

children, young people and other dependents of people receiving

mental health and wellbeing services are to be protected.".

Parliament acknowledges that the wellbeing of dependents may

sometimes be in tension with the views of preferences of a person

receiving mental health and wellbeing services.

Part 1.6—Application of mental health and wellbeing principles

and family violence limitation

Clause 29 sets out the obligations of mental health and wellbeing service

providers, including that they must make all reasonable efforts to

comply with the mental health and wellbeing principles, give

proper consideration to the principles when making a decision,

provide safe, person-centred mental health and wellbeing

services and foster continuous improvement in the quality and

safety of the care and mental health and wellbeing services they

provide.

In giving effect to these obligations, mental health and wellbeing

service providers will be required to balance a number of

competing factors, some of which may be in direct tension with

one another. Further, they may be required to make all

reasonable efforts to comply with, or give proper consideration

to, the mental health and wellbeing principles in circumstances of

urgency or under extreme pressure, or with great repetition and

frequency. It is intended that these obligations be interpreted in

the real-world context in which they will arise, and to give proper

consideration implicitly includes the concept of what is

appropriate in the circumstances. It is not envisaged that the

proper consideration exercise will always be informed by legal

advice, nor that it be a sophisticated or formulaic process, but it

must be more than a token or formality.

27

Clause 30 provides that mental health and wellbeing service providers

required to provide an annual report must outline actions taken

related to giving effect to one or more of the mental health and

wellbeing principles in their report.

Clause 31 sets out the information sharing limitation if there may be a risk

of family violence or other serious harm.

This clause moderates the information sharing provisions across

the Bill, by providing that a person's personal information or

health information must not be given or disclosed, if by doing so

there is a risk that the person may be subjected to family violence

or other serious harm. The clause applies regardless of whether

the person consented to the disclosure of their personal

information or health information.

This is a reflection of the Parliament's concern that disclosure of

personal information or health information could increase the risk

of violence or harm, and that people who are authorised required

to share or disclose such information should have discretion to

withhold it in these limited circumstances.

It is important to read the Bill in such a way that this clause is

taken to moderate or qualify provisions that require or authorise

the sharing of information, including, for example, provision of a

copy of a treatment order to a guardian or carer.

Chapter 2—Protection of rights

The Royal Commission stated that, as part of the alignment of decision-

making laws, the government should consider making advance statements

binding in all but very limited circumstances and creating nominated

decision-makers, who are authorised to make a substitute decision when a

person does not have capacity.

These matters are to be considered as part of the Independent Review into

compulsory treatment criteria and alignment of decision-making laws, and as

such, have not been given full effect in this Bill.

In the interim, consistent with guidance in the Royal Commission's final

report, the Bill makes changes to enhance supported decision-making and

increase the uptake and utility of safeguards that exist under the Bill.

Firstly, the Bill embeds supported decision-making in the mental health

principles and specific guiding principles for the use of compulsory

assessment and treatment and restrictive interventions.

28

A "statement of rights" must be provided to people receiving a broader range

of treatment and services than just those who are subject to a compulsory

order.

An "advance statement of preferences" sets out a person's preferences in case

they become unwell and need compulsory mental health treatment.

The Bill aims to increase use and utility of these statements by easing witness

requirements, requiring greater weight to be given to them by decision-

makers, expanding the range of preferences that can be included and

requiring written reasons be provided for a decision to override expressed

treatment preferences.

The role of the "nominated person" established under the Mental Health

Act 2014 has been renamed as the "nominated support person". This role is

clarified in the Bill to ensure that it focuses on supporting the patient to make

their own decisions and to communicate the patient's views and preferences,

along with the easing of witnessing requirements.

Non-legal mental health advocacy

The Royal Commission found that non-legal advocacy is highly valued by

consumers, effective in putting supported decision making into practice, and

may drive down the use of coercive practices.

Since 2015, the Department has funded Victoria Legal Aid to provide a

non-legal representational mental health advocacy service—the Independent

Mental Health Advocacy (IMHA) service. IMHA is not established in

legislation. Consultation feedback has overwhelmingly praised this service.

The Bill provides the framework for the development of the opt-out non-legal

mental health advocacy services recommended by the Royal Commission.

The providers of these services employ advocates whose role is to act on

instruction of a consumer to provide non-legal assistance to: understand

information regarding their assessment, treatment and care; participate in the

making of decisions about assessment, treatment and care; and understand

and exercise their rights.

To support an opt-out model, a new obligation will be introduced. Mental

health and wellbeing service providers must notify a mental health advocacy

service provider at defined points, such as when a person is made subject to a

temporary treatment order. This will allow a mental health advocate to make

contact with the person to offer support.

The Bill includes a specific regulation making power to allow other

notification requirements to be prescribed.

29

Information will necessarily be provided about a person to enable the opt-out

model and the Bill will provide for the establishment of an opt-out register—

to record details of those who do not wish to be offered or provided with non-

legal advocacy services and to manage notifications in respect to those

consumers.

The Bill enables the Health Secretary to designate a single statewide

provider, or multiple providers of non-legal mental health advocacy. The

Secretary will be required to ensure there is a single point for notifications to

the advocacy system if there are multiple advocacy providers. This will

ensure certainty to mental health and wellbeing service providers about their

notification obligations and provide a "one door in" for consumers.

Consumers will continue to be able to request advocacy support directly

regardless of whether a notification has been made to the advocacy service.

There is also a new obligation on providers to assist mental health advocates

and notify non-legal mental health advocacy service providers of certain

events in respect of a person, such as when restrictive interventions are used.

The Chief Officer will issue protocols to be followed by the mental health

advocacy services, and providers in making notifications.

Part 2.1—Supporting patient rights

Clause 32 states that a designated mental health service must take all

reasonable steps to find out whether a patient has an advance

statement of preferences or a nominated support person, and

whether these are in effect.

This is to occur as soon as practicable after the designated mental

health service becomes responsible for a patient's assessment or

treatment. This is to ensure that a person's views and preferences

can be ascertained at the outset of the assessment or treatment

relationship.

Clause 33 sets out the requirement for designated mental health services to

ensure all reasonable efforts are made to give effect to a patient's

statement of preferences if they find that the patient's statement is

in effect. This requirement sits alongside the provisions in

Chapters 3 and 4 which include specific requirements for the

consideration of statements of preferences regarding compulsory

treatment.

30

Clause 34 requires a designated mental health service to take reasonable

steps to support a nominated support person perform their role as

require or authorised under the Bill. This clause is not intended

expand the role or powers of a nominated support person.

The clause sets out the types of steps which a designated mental

health service may take.

Clause 35 requires an entity required by or under the Bill to consider an

advance statement of preferences or consult with a nominated

support person, before making a decision that requires

consideration of a patient's preferences, to take reasonable steps

to find out whether a patient has an advance statement of

preferences or a nominated support person, and whether these are

in effect.

The clause sets out circumstances in which an entity may take a

statement or nomination to be in effect. It is aimed at giving

effect wherever possible to an existing nomination or an advance

statement.

Part 2.2—Statement of rights

Clause 36 defines the term statement of rights as being a document that sets

out the rights of a person under the Bill and the processes that

apply while that person is receiving mental health and wellbeing

services.

The clause lists the relevant people to whom a statement of rights

must be provided.

Clause 37 requires a registered medical practitioner, authorised mental

health practitioner, authorised psychiatrist or psychiatrist (as the

case may be) to take all reasonable steps to ensure that a person

in circumstances referred to in clause 36 is given a statement of

rights.

Clause 38 states that a statement of rights must be in a form approved by the

Chief Officer, and must also contain the information approved by

the Chief Officer for each person listed in clause 36. It is

intended that the statement of rights contain information in an

accessible and comprehensible form which is designed to ensure

that people are aware of and able to access their rights.

31

Clause 39 sets out how a statement of rights must be explained to the person

to whom it is given. The clause is drafted with an emphasis on

the person's understanding of the statement of rights. The

explanation of a statement of rights is not intended to be a single

event. Ideally, giving effect to this requirement should involve

ongoing discussions about rights throughout the person's period

of assessment and treatment.

Clause 40 sets out the requirements for a registered medical practitioner,

authorised mental health practitioner, authorised psychiatrist or

psychiatrist (as the case may be), if a statement of rights is given

to a person, to take all reasonable steps to ensure that the

statement is given to any relevant support persons.

The clause lists the relevant people to whom a statement of rights

must also be given.

Part 2.3—Non-legal mental health advocacy services

Clause 41 requires the Health Secretary to designate a suitable non-legal

mental health advocacy service provider to be the primary

non-legal mental health advocacy service. It also permits the

Health Secretary to designate other suitable non-legal mental

health advocacy service providers.

Subclause (2) sets out that a non-legal mental health advocacy

service is suitable to be designated by the Health Secretary if the

provider is a body corporate and the Health Secretary is satisfied

the provider satisfies certain specified criteria, including (but not

limited to) having mental health advocates and other staff with

experience of receiving requests for support and notifications

from consumers and being independent from mental health and

wellbeing service providers.

Clause 42 provides that the Chief Officer must prepare written protocols for

providers of non-legal mental health advocacy services.

Subclause (1) sets out what the Chief Officer is required to

prepare written protocols for.

Subclause (2) sets out that the Chief Officer must prepare written

protocols for mental health and wellbeing service providers in

relation to the process under the Bill for the making, and form of,

notifications to the primary non-legal mental health advocacy

service provider.

32

Subclause (3) requires that the Chief Officer consult with non-

legal mental health advocacy service providers, mental health and

wellbeing service providers, consumers, and family, carers and

supporters of consumers.

Subclause (4) sets out that the Chief Officer must ensure

protocols are published on the Department's website and given to

non-legal mental health advocacy service providers and mental

health and wellbeing service providers (as the case may be).

Subclause (5) sets out when the Chief Officer must not prepare

protocols, including in respect of any specific person or provider,

or to provide information that could identify a consumer.

Clause 43 sets out that notifications required to be made to the primary

non-legal mental health advocacy service provider must be made

in accordance with any non-legal advocacy protocols for mental

health and wellbeing service providers.

Clause 44 sets out the role and expectations for the primary non-legal

mental health advocacy service provider and any other non-legal

mental health advocacy service providers.

Subclause (1) sets out the responsibilities of the primary

non-legal mental health advocacy service provider, including

receiving notifications and requests, coordinating provision of

non-legal mental health advocacy services, and maintaining the

opt-out register.

Subclause (2) sets out the expectations of non-legal mental health

advocacy service providers.

Clause 45 sets out the role of a mental health advocate, framed in an

inclusive list of ways in which the advocate may assist a person,

and reflecting that an important function of a mental health

advocate is to to represent the views of the consumer to staff of

a mental health and wellbeing service provider in accordance

with any instructions given to the advocate by the consumer.

Importantly, it is not intended that mental health advocates

provide legal advice or assistance to consumers.

Clause 46 sets out the role of a mental health advocate in relation to a

consumer is a child or young person (15 years of age or younger),

including promoting the views and preferences of the child or

young person, and working with their family, carers and

supporters to ensure that their best interests are protected. It is

33

important to note that this is the only clause across the Bill in

which "best interests" are mentioned.

Clause 47 provides for what a mental health advocate may do, in

accordance with the instructions of a consumer who is at least

16 years of age, or where the person is a patient and those

instructions are unable to be obtained.

Subclause (1) stipulates what the mental health advocate may do

in accordance with instructions.

Subclause (2) sets out the scope of what a mental health advocate

may do in circumstances where a consumer is a patient who is at

least 16 years and the mental health advocate is unable to obtain

instructions, so as to ensure the rights of the patient are upheld.

Clause 48 states that a consumer may withdraw their instructions to a

mental health advocate at any time. The withdrawal may be oral

or written, and may be given to the mental health advocate or to

the primary non-legal mental health advocacy service provider.

Clause 49 sets out the requirement for a mental health and wellbeing service

provider to give reasonable assistance to any mental health

advocate for the purposes of enabling the advocate to perform

and carry out their functions, duties and responsibilities with

respect to a consumer. This may include such things as assisting

with facilitation of communication with the consumer or

providing access to information or documentation as authorised

or required under this Bill.

Clause 50 provides that a non-legal mental health advocacy service provider

must give proper consideration to the mental health and

wellbeing principles. This requirement is intended to highlight

the primacy of the mental health and wellbeing principles in the

delivery of services and support to people across the mental

health and wellbeing system.

Clause 51 requires the primary non-legal mental health advocacy service

provider to establish, maintain and manage an opt-out register.

The register will capture the details of people who for whatever

reason have indicated that they do not wish to receive support or

assistance from a mental health advocate.

34

The primary non-legal mental health advocacy service provider

must publish on its website information on how a consumer may

indicate their preferences regarding the provisions of non-legal

mental health advocacy services. The Chief Officer must publish

this information on the Department's website.

Part 2.4—Right to communicate

Clause 52 defines the term communicate for the purpose of this Part which

sets out an inpatient's right to communicate while receiving

treatment at a designated mental health service.

Clause 53 sets out an inpatient's general right to communicate lawfully with

any person, including by electronic communication, and specifies

in particular, that the inpatient has a right to communicate for the

purpose of seeking legal advice or representation or seeking the

services of a mental health advocate.

Clause 54 allows for an authorised psychiatrist to place restrictions on an

inpatient's right to communicate and sets out in what

circumstances, how and to what extent this may be done. This

clause is intended to capture a decision to confiscate or restrict

access to an inpatient's personal communication device, such as a

mobile phone or other device. Restriction of access to personal

communication devices can only occur in accordance with this

clause.

Subclause (2) establishes the threshold for the making of a

direction restricting an inpatient's right to communicate, namely

that the authorised psychiatrist is satisfied that the restriction is

reasonably necessary to protect the health, safety and wellbeing

of the inpatient or another person.

Subclause (3) sets out a list of people and entities with whom an

inpatient's communication is protected and cannot be restricted,

including the person's legal representative, the chief psychiatrist,

the Commission, the Tribunal, a community visitor, a non-legal

mental health advocacy service provider or mental health

advocate, the DFFH Secretary (where relevant) or a prescribed

body or person.

35

Subclause (4) requires that if a direction is made under this

provision, the authorised psychiatrist must ensure that the

restrictions imposed are the least restrictive possible to protect

the health, safety and wellbeing of the inpatient or another

person.

Clause 55 sets out the persons whom an authorised psychiatrist must notify

once they make a direction restricting an inpatient's right to

communicate. The clause also provides that reasonable steps

must be taken to inform the primary non-legal mental health

advocacy service provider.

Clause 56 states that the authorised psychiatrist who makes a direction

restricting an inpatient's right to communicate must review their

decision on a regular basis and immediately end the restriction if

they are satisfied that it is no longer necessary. This should

involve consideration of whether, even if some degree of

restriction needs to be continued, the restriction could be eased in

some way to ensure that it is the least restrictive possible to

protect the health, safety and wellbeing of the inpatient or another

person.

Part 2.5—Advance statements of preferences

Clause 57 sets out what an advance statement of preferences is for the

purposes of the Bill, including that any person can make one to

set out their preferences in relation to their treatment, care and

support in the event that the person becomes a patient.

Clause 58 sets out how an advance statement of preferences is made.

Subclause (1) states that an advance statement of preferences

may be made at any time. It is intended that this include when a

person is already a patient.

Subclause (2) specifies the form the advance statement of

preferences must take, and what it must contain.

Subclause (3) provides that an advance statement will be in effect

from the time it is made until it is revoked.

Clause 59 sets out when an advance statement of preferences is revoked, the

form the revocation must take, and what it must contain.

36

Clause 60 states that an advance statement of preferences must not be

amended. Instead, a person's new preferences must be recorded

in a new advance statement of preferences made in accordance

with the Bill.

Part 2.6—Nominated support persons

Clause 61 specifies the role of a nominated support person.

Subclause (1) sets out the various roles that can be performed by

a nominated support person. A crucial aspect of a nominated

support person's role is to advocate for the views and preferences

of the person who made the nomination, including views and

preferences that were expressed some time in the past. For

example, if a patient is not able to communicate at the time a

decision is being made, but has previously told their nominated

support person they "never want to have electroconvulsive

treatment", the nominated support person can represent this view

to the relevant decision makers.

Subclause (2) requires that a nominated support person perform

their role in a way that supports constructive relationships

between the patient and the staff of a designated mental health

service. This is intended to ensure that the nominated support

person play a constructive and collaborative role in facilitating

the assessment, treatment and care of the patient.

Clause 62 states that a person may nominate another person to be their

nominated support person at any time. It is intended that this

include when a person is already a patient.

This clause sets out the form the nomination must take, including

that it must be witnessed and that the person nominated must not

be the person who witnesses the nomination. This clause

contains a number of safeguards to protect against the making of

a nomination under pressure, duress or undue influence, and to

ensure that nominations are made freely and in accordance with

the will of the person making the nomination.

Clause 63 provides that a nomination is made when the nominated support

person signs the acceptance form. The nomination under this

Part is in effect from the time it is made until the time it is

revoked.

37

Clause 64 sets out when a nomination is revoked, including on the making

of a new nomination, the revocation of the nomination, or where

the nominated support person resigns from their role as a

nominated support person.

Clause 65 states that a person may revoke their nomination at any time and

sets out the form the revocation must take and how the revocation

must be made. There is provision for the inclusion of prescribed

information in the revocation.

A person who revokes a nomination must take reasonable steps

to inform the nomination support person of the revocation and, if

the person is a patient, must inform the authorised psychiatrist.

This clause contains a number of safeguards to protect against the

revocation of a nomination under pressure or undue influence.

Clause 66 provides that a nominated support person may resign from their

role at any time, and sets out the form the resignation should

take, and what it must contain. A nominated support person who

resigns must take reasonable steps to inform the person who

appointed them of their resignation and, if the person who

appointed them is a patient, must inform the authorised

psychiatrist.

Part 2.7—Second psychiatric opinions in relation to compulsory

treatment and certain orders

Clause 67 states that an eligible patient may seek a second psychiatric

opinion at any time, and provides for a number of other persons

connected to an eligible patient who may also seek a second

psychiatric opinion in respect of the patient. If an eligible patient

requests assistance to obtain a second psychiatric opinion, the

authorised psychiatrist must ensure reasonable steps are taken to

assist the patient with that request.

Clause 68 provides that a second opinion under this Part may be sought

from any psychiatrist.

Clause 69 sets out the functions of a psychiatrist giving a second psychiatric

opinion. The functions are to assess the eligible patient

(other than a forensic patient) and provide an opinion as to

whether the criteria for the relevant order apply. Relevant order

in subclause (1)(a) means a Temporary Treatment Order,

Treatment Order, Secure Treatment Order or Court Secure

38

Treatment Order. It does not include an order made in respect of

a forensic patient. The clause clarifies that a second psychiatrist

who is asked to give a second opinion under this Part cannot

override the treatment prescribed by the authorised psychiatrist.

For the avoidance of doubt, while Clause 70 provides that a

psychiatrist may examine an eligible patient for the purpose of

providing a second psychiatric opinion, it is intended that an

assessment may be conducted by reviewing reports and records

and other documentation, consulting with the authorised

psychiatrist and other staff of the designated mental health

service, and having regard to the views and preferences of the

patient. It is not necessary that a psychiatrist personally examine

a person in order to conduct the assessment necessary to give a

second psychiatric opinion.

Clause 70 specifies the powers of a psychiatrist giving a second psychiatric

opinion, including that they may examine the eligible patient,

access certain health information and consult with the authorised

psychiatrist and other staff of the designated mental health

service. This clause also requires that the psychiatrist must have

regard to the patient's views and preferences on a number of

matters.

Clause 71 states that a member of staff of a designated mental health service

must provide a psychiatrist giving a second psychiatric opinion

with any reasonable assistance that the psychiatrist requires in

order to perform a function or exercise a power under this Part.

This is intended to include (but is not limited to) facilitation of

the access referred to in Clause 70 to documents, to consultation

with staff, and to the eligible patient for the purpose of an

examination.

Clause 72 provides that a psychiatrist who gives a second psychiatric

opinion must prepare a written report, and sets out what must be

included in that report.

Subclause (2) states that a psychiatrist must ensure reasonable

steps are taken to give, in a timely matter, a copy of the report to

specified persons, and sets out who is to receive a copy of the

report.

39

Clause 73 requires that if a report under clause 72 (other than a report in

relation to a forensic patient) expresses the opinion that the

criteria for the relevant order do not apply, the authorised

psychiatrist must examine the eligible patient as soon as

practicable after receiving a copy of the report and determine

whether the criteria for the relevant order apply to the eligible

patient.

Should the authorised psychiatrist determine that the criteria for

the relevant order apply, subclauses (2), (3) and (4) outline what

the authorised psychiatrist must do.

Subclause (2) requires that the authorised psychiatrist must give

the eligible patient reasons for the determination and advise them

that they have the right to apply to the Mental Health Tribunal.

Subclause (3) specifies that reasons must be provided orally as

soon as practicable after the determination is made, and in

writing within 10 days.

Subclause (4) stipulates the people to whom the written reasons

for the determination must be provided.

Clause 74 provides for circumstances in which an authorised psychiatrist

must review an eligible patient's treatment if a report under

clause 72 recommends changes to the eligible patient's current

treatment. The authorised psychiatrist must review the patient's

treatment and decide whether to adopt any of the

recommendations made in the report as soon as practicable.

Subclause (2) and (3) outline what the authorised psychiatrist

must do if they adopt any, some or none of the recommendations.

Subclause (4) provides the timeframes for the purposes of

subclause (3).

Subclause (5) outlines that the authorised psychiatrist must give

written reasons for the decision within 10 days after the decision

is made to specified persons.

Clause 75 sets out that an eligible patient or a person specified in

clause 67(2) may apply to the chief psychiatrist to review the

treatment of a patient should the authorised psychiatrist decide to

adopt none or only some of the recommended changes made in

the report under clause 72.

40

Subclause (2) provides that the person seeking the review must

give the chief psychiatrist any other information that the chief

psychiatrist requests in relation to the treatment of the eligible

patient.

Subclause (3) provides that a member of staff of the designated

mental health service must provide an eligible patient with any

reasonable assistance in making an application, if the eligible

patient requests such assistance.

Subclause (4) provides that the authorised psychiatrist may

continue to administer treatment to the eligible patient during the

conduct of a review under clause 76.

Clause 76 states that the chief psychiatrist must review the treatment of an

eligible patient within 10 business days after receiving an

application under clause 75(1).

Subclause (2) sets out what the chief psychiatrist may do for the

purposes of the review, including examining the patient,

accessing certain health information and consulting with the

authorised psychiatrist and any staff of the designated mental

health service .

Subclause (3) requires the designated mental health service to

provide the chief psychiatrist with any reasonable assistance

required to conduct the review.

Subclause (4) sets out that the chief psychiatrist must, to the

extent that is reasonable in the circumstances, have regard to a

number of things in deciding whether to recommend any changes

to the treatment and the nature of those changes, including the

eligible patient's views and preferences on a number of matters,

and the views of certain other people connected to the eligible

patient.

Subclause (5) provides that if appropriate in the circumstances,

the chief psychiatrist may direct the authorised psychiatrist to

change the treatment of the eligible patient.

Subclause (6) provides that a direction under (5) is not limited to

recommendations made in a second psychiatric opinion report

made under clause 72.

41

Subclause (7) provides that, as soon as practicable following the

review, the chief psychiatrist must ensure reasonable steps are

taken to notify specified persons in writing of the outcome of the

review.

Clause 77 provides that an eligible patient or a person specified in

clause 67(2) who applies to the chief psychiatrist to review the

treatment of the eligible patient may withdraw the application at

any time, and may advise the chief psychiatrist of the withdrawal

directly or request that the authorised psychiatrist advise the chief

psychiatrist of the withdrawal.

Chapter 3—Treatment and interventions

The Royal Commission did not recommend any changes to the requirements

for informed consent to treatment under the Bill.

The Bill, accordingly, re-enacts in Chapters 3 and 4, many of the provisions

contained in Mental Health Act 2014 with modifications to simplify and

clarify the operation of these provisions, including the presumption that a

person has capacity to give informed consent to receive mental health

treatment or medical treatment.

The Bill sets out a process for obtaining informed consent for treatment for

mental illness. This process applies any time a mental health and wellbeing

service provider is seeking a consumer's informed consent to treatment.

It also applies to specific treatments provided for in the Bill, such as

electroconvulsive treatment or neurosurgery, and in relation to medical

treatment for patients on orders under the Bill.

These provisions are intended to provide detailed guidance to mental health

and wellbeing service providers. Given the informed consent process applies

to all forms of treatment for mental illness, it is intended that the application

of these requirements will vary depending on the nature and effect of the

treatment for which informed consent is being sought. For example, the type

of information and support that should be provided to a consumer when

seeking informed consent for treatment that involves medication will be

different to what is required when seeking informed consent for a talking

therapy session.

Restrictive interventions

Integral to the recommendations of the Royal Commission, the Bill supports

a reduction in the use and impact of compulsory assessment and treatment

and restrictive interventions and for the first time in Victoria, regulates the

use of chemical restraint in mental health services.

42

The Bill continues to provide for the use of restrictive interventions but does

reflect, in objectives, the ultimate aim of elimination and provides for the

setting of targets towards this goal.

The government recognises the complexity of this issue—the imperative to

keep the workforce safe, and the new system resourcing requirements to

provide the right workforce levels and built environments to support the

objective.

Targets will, therefore, be set outside of the legislation to provide flexibility

to progress at a rate that allows for the safety of services, consumers and staff

to be maintained.

New guiding principles for compulsory assessment and treatment and

restrictive interventions recognise that restrictive interventions are not

therapeutic and require the impact of their use on the person to be considered

when decisions are made.

Additionally, the Bill creates a positive duty on providers to review each use

of restrictive interventions and clarifies and strengthens the monitoring and

reporting requirements associated with their use.

The Bill remakes parts of the Mental Health Act 2014 that deal with

electroconvulsive therapy (ECT), neurosurgery and medical treatment.

Although redrafted for clarity and to accord with modern drafting techniques,

the provisions remain substantively the same.

Part 3.1—Decision-making principles for treatment and

interventions

Clause 78 provides that this Part sets out the decision-making principles for

treatment and intervention, and applies to Chapter 3 and

Chapter 4 of the Bill.

Clause 79 sets out the care and transition to less restrictive support

principle.

The principle reads—"Compulsory assessment and treatment is

to be provided with the aim of promoting the person's recovery

and transitioning them to less restrictive treatment, care and

support. To this end, a person who is subject to compulsory

assessment or treatment is to receive comprehensive,

compassionate, safe and high-quality mental health and

wellbeing services.".

43

Clause 80 sets out the consequences of compulsory assessment and

treatment and restrictive interventions principle.

The principle reads—"The use of compulsory assessment and

treatment or restrictive interventions significantly limits a

person's human rights and may cause possible harm including—

(a) serious distress experienced by the person; and

(b) the disruption of the relationships, living arrangements,

education or employment of the person.".

Clause 81 sets out the no therapeutic benefit to restrictive interventions

principle. The principle reads—"The use of restrictive

interventions on a person offers no inherent therapeutic benefit to

the person.".

Clause 82 sets out the balancing of harm principle.

The principle reads—"Compulsory assessment and treatment or

restrictive interventions are not to be used unless the serious

harm or deterioration to be prevented is likely to be more

significant than the harm to the person that may result from their

use.".

Clause 83 sets out the autonomy principle. The principle reads—"The will

and preferences of a person are to be given effect to the greatest

extent possible in all decisions about assessment, treatment,

recovery and support, including when those decisions relate to

compulsory assessment and treatment.".

Clause 84 provides at subclause (1) that a person who has authority to make

a decision or exercise a power in respect of the care or treatment

of a patient under Chapter 3 or 4 must give proper consideration

to the decision-making principles for treatment and interventions

in the making of that decision or exercise of that power.

Subclauses (2), (3), and (4) set requirements for the making and

publication of guidelines prepared by the chief psychiatrist to

assist a person who has authority to make a decision or exercise a

power in respect of the care or treatment of a patient under

Chapter 3 or 4 to make that decision or exercise that power in

accordance with subclause (1).

44

Subclause (5) provides that if a person who has authority to make

a decision or exercise a power in respect of the care or treatment

of a patient under Chapter 3 or 4 makes a decision or exercises a

power in accordance with the relevant guidelines, they are taken

to have given proper consideration to the decision-making

principles for treatment and interventions.

Subclause (6) clarifies that the Mental Health Tribunal is not

required to comply with this clause.

Part 3.2—Capacity and informed consent

Clause 85 provides that informed consent of a person to be treated must be

sought before any treatment or medical treatment is given under

the Bill. The person seeking informed consent must presume that

the person to be treated has capacity to give informed consent.

This means that informed consent must be sought anytime a

person is given treatment (as defined) by a mental health and

wellbeing service provider, or medical treatment with respect to

patients (under this Chapter), or electroconvulsive treatment or

neurosurgery for mental illness (under this Chapter).

The clause provides that, if the person seeking informed consent

reasonably considers that the person to be treated does not have

capacity to give informed consent, then informed consent does

not have to be sought.

Clause 86 establishes the meaning of informed consent to treatment or

medical treatment for the purposes of the Bill.

Application of the informed consent requirements will vary

depending on the nature and effect of the treatment for which

informed consent is being sought. For example, the type of

information and support that should be provided to a consumer

when seeking informed consent for treatment that involves

medication will be different to what is required when seeking

informed consent for a talking therapy session.

Subclause (1) provides that a person may give informed consent

if the person has capacity to give informed consent, and has been

given adequate information to make an informed decision and a

reasonable opportunity to decide whether or not to consent and

has given consent freely without undue pressure or coercion by

any other person and has not withdrawn their consent or

indicated their intention to withdraw their consent.

45

Subclause (2) sets out the information that must be given to a

person in order for that person to have been given adequate

information to make an informed decision about treatment or

medical treatment

Subclause (3) sets out what it means for a person to be given a

reasonable opportunity to make a decision.

Subclause (4) provides that a person may also give informed

consent for medical treatment given under the Bill by

instructional directive.

Clause 87 sets out when a person has capacity to give informed consent to

treatment or medical treatment under the Bill.

Subclause (2) sets out matters to be considered by a person who

is required to determine whether a person has capacity to give

informed consent.

Subclause (3) provides that the person carrying out the

assessment of whether a person has capacity to give informed

consent must take all reasonable steps to ensure that the

assessment is carried out at a time, and in an environment, for the

person to be assessed most accurately. The person being

assessed is to be provided with appropriate supports to enable

them to give informed consent.

Part 3.3—Treatment

Clause 88 provides that a patient is to be given treatment for their mental

illness in accordance with the Bill.

Clause 89 establishes what is to happen if a person does not have capacity

to give informed consent to treatment, or has the capacity but

does not give informed consent.

This clause applies to a patient other than an assessment patient

or a court assessment patient, and does not apply if the treatment

proposed is electroconvulsive treatment or neurosurgery for

mental illness.

Subclause (2) makes clear that in determining whether this clause

applies to a person, it is only the patient not giving informed

consent that is relevant and not the refusal to give consent of any

other person or body authorised by law to make decisions for the

patient.

46

Subclause (3) provides that if the person to be treated does not

have capacity to give informed consent to treatment, or has the

capacity but does not give informed consent, the authorised

psychiatrist may make the decision regarding treatment if the

treatment is clinically appropriate and there is no less restrictive

way for the patient to be treated other than the treatment

proposed by the authorised psychiatrist.

Subclause (4) requires that the authorised psychiatrist, in

determining if there is no less restrictive way for the person to be

treated, must, to the extent that it is reasonable in the

circumstances, have regard to various factors including the views

and preferences of the patient and the views of other specified

persons.

Clause 90 provides that an authorised psychiatrist may only make a

treatment decision for a patient under section 89(3) that is not in

accordance with the preferred treatment specified in the patient's

advance statement of preferences if the authorised psychiatrist is

satisfied that the patient's preferred treatment is not clinically

appropriate or is clinically appropriate but is unable to be

provided to the patient by the designated mental health service

despite the designated mental health service making all

reasonable efforts to do so. The requirements of clause 89 still

apply to the treatment decision.

The clause sets out actions to be taken by the authorised

psychiatrist to inform the patient of the decision and to provide

the patient and the nominated support person with the reasons for

the decision.

Part 3.4—Medical treatment

Clause 91 provides that if a patient gives informed consent to medical

treatment, that medical treatment may be given to the patient.

Medical treatment as defined does not include "treatment" for

mental illness under the Act.

Clause 92 specifies who may consent to medical treatment if the patient

does not have capacity to give informed consent. The clause

specifies persons who may give consent to medical treatment in

descending order of priority and provides that the authorised

psychiatrist may consent if none of those of higher priority have

given consent.

47

The clause makes separate provision regarding consent to

medical treatment by a patient who is 18 years old or over, and a

patient who is under 18 years of age.

Clause 93 sets out that an authorised psychiatrist may consent to medical

treatment being administered to a patient who does not have

capacity to give informed consent if they are satisfied that the

medical treatment would benefit the patient. In deciding whether

medical treatment would benefit the patient, the authorised

psychiatrist must, to the extent that is reasonable in the

circumstances, have regard to various factors including the views

and preferences of the patient and the views of other specified

persons.

The clause provides that an authorised psychiatrist must not give

consent to medical treatment if they are of the opinion that the

patient is likely to have capacity to consent within a reasonable

period of time, unless the delay in giving medical treatment could

result in serious harm to, or deterioration in, the mental or

physical health of the patient.

Part 3.5—Electroconvulsive treatment

Division 1—General

Clause 94 sets out that electroconvulsive treatment must not be performed

other than in accordance with this Part.

Clause 95 describes a course of electroconvulsive treatment for the

purposes of Part 3.5 of the Bill as meaning treatment specified by

the Mental Health Tribunal in an order under Part 3.5 that

consists of up to 12 electroconvulsive treatments that are

performed within a period of time that does not exceed 6 months.

An adult patient or an adult who is not a patient who has

personally given informed consent in writing to electroconvulsive

treatment is not required to obtain an order from the Mental

Health Tribunal to authorise that treatment and is not limited to a

course of treatment as defined.

48

Clause 96 provides that if the Mental Health Tribunal makes an order

authorising a course of electroconvulsive treatment, the Tribunal

must specify in the order the duration of the order and the

maximum number of electroconvulsive treatments

(not exceeding 12) authorised to be performed over the duration

of the order.

The clause provides that nothing in this Part requires a course of

electroconvulsive treatment to be completed.

Clause 97 sets out the requirements for the listing and completion of

applications to the Mental Health Tribunal for a course of

electroconvulsive treatment.

Division 2—Adult patients

Clause 98 provides that electroconvulsive treatment may be performed on

an adult patient if the adult patient has personally given informed

consent in writing or the Mental Health Tribunal has made an

order authorising a course of electroconvulsive treatment.

Clause 99 sets out the procedure for applying to the Mental Health Tribunal

by the authorised psychiatrist for authority to perform

electroconvulsive treatment on an adult patient.

The clause provides that the authorised psychiatrist may apply for

authority if the adult patient does not have capacity to consent to

the treatment and the authorised psychiatrist is satisfied that in

the circumstances there is no less restrictive way to treat the adult

patient.

Subclause (2) sets out the matters the authorised psychiatrist must

have regard to in deciding whether there is a less restrictive way

to treat the adult patient, including the views and preferences of

the adult patient and the views of other specified persons.

Subclause (3) provides that the authorised psychiatrist may make

a further application to the Mental Health Tribunal during or after

the course of electroconvulsive treatment.

49

Clause 100 provides that on receiving an application under this Division, the

Mental Health Tribunal must determine the application and—

• make an order authorising a course of electroconvulsive

treatment if the Tribunal is satisfied that the adult

patient does not have capacity to give informed consent

to the electroconvulsive treatment and there is no less

restrictive way for the adult patient to be treated; or

• make an order refusing the treatment.

The Tribunal is required to make an order refusing treatment if it

is not satisfied of the matters required under this clause to

authorise a course of electroconvulsive treatment.

Clause 101 requires the Mental Health Tribunal to notify specified persons

on the making of a decision to make an order authorising the

treatment or refusing to authorise the treatment under this

Division.

The clause also requires the Mental Health Tribunal to provide

persons notified with a copy of the order.

The clause also requires the authorised psychiatrist to take

reasonable steps to ensure that certain persons notified are

provided with a statement of rights.

Clause 102 sets out when a course of electroconvulsive treatment on a person

authorised by the Mental Health Tribunal under this Division

begins and ends.

Division 3—Use of electroconvulsive treatment on adults who are

not patients

Clause 103 specifies the circumstances in which electroconvulsive treatment

may be performed on an adult who is not a patient. This includes

where the adult has given informed consent in writing or the

Mental Health Tribunal has made an order authorising the

treatment.

Clause 104 sets out the procedure for an application to the Mental Health

Tribunal by a psychiatrist for authority to perform

electroconvulsive treatment on an adult who is not a patient.

50

The clause provides that the psychiatrist may apply for authority

if the adult person does not have capacity to give informed

consent to the treatment and the psychiatrist is satisfied in the

circumstances that there is no less restrictive way to treat the

person and the person has an instructional directive under the

Medical Treatment Planning and Decisions Act 2016 giving

informed consent to electroconvulsive treatment or, if there is no

instructional directive, the person's medical treatment decision

maker as defined in the Medical Treatment Planning and

Decisions Act 2016 gives informed consent in writing to the

course of electroconvulsive treatment

Subclause (2) sets out the matters the psychiatrist must have

regard to in deciding whether there is a less restrictive way to

treat the person, including the views and preferences of the

person and the views of other specified persons.

Subclause (3) provides that the psychiatrist may make further

application to the Mental Health Tribunal during or after the

course of electroconvulsive treatment.

Clause 105 sets out the powers of the Mental Health Tribunal on receiving an

application for electroconvulsive treatment under this Division.

The Mental Health Tribunal must determine the application

and—

• make an order authorising a course of treatment if the

Tribunal is satisfied that the person does not have

capacity to give informed consent, there is no less

restrictive way for the person to be treated and either the

person has an instructional directive consenting to

electroconvulsive treatment or does not have an

instructional directive consenting to electroconvulsive

treatment and the person's medical treatment decision

maker gives informed consent in writing to the course

of electroconvulsive treatment; or

• make an order refusing treatment.

The Tribunal is required to make an order refusing treatment if it

is not satisfied of the matters required under this clause to

authorise a course of electroconvulsive treatment.

51

Clause 106 specifies the persons who must be notified by the Mental Health

Tribunal of the Tribunal's decision.

The clause also requires the Mental Health Tribunal to provide

persons notified with a copy of the order.

The clause also requires the authorised psychiatrist to take

reasonable steps to ensure that certain persons notified are

provided with a statement of rights.

Clause 107 sets out when a course of electroconvulsive treatment on a person

authorised by the Mental Health Tribunal under this Division

begins and ends.

Division 4—Young patients

Clause 108 provides that in the case of a young patient, electroconvulsive

treatment may only be performed after the Mental Health

Tribunal has made an order under clause 110 in respect of the

person authorising the treatment.

Clause 109 provides that an authorised psychiatrist may apply to the Mental

Health Tribunal for an order authorising a course of

electroconvulsive treatment on a young patient if the young

patient gives informed consent in writing to the course of

electroconvulsive treatment or, if the young patient does not have

capacity to give informed consent, the authorised psychiatrist has

determined that in the circumstances there is no less restrictive

way for the young patient to be treated.

Subclause (2) sets out the matters the authorised psychiatrist must

have regard to in deciding whether there is a less restrictive way

to treat the young patient, including the views and preferences of

the young patient and the views of other specified persons.

Subclause (3) provides that the authorised psychiatrist may make

further application to the Mental Health Tribunal during or after

the course of electroconvulsive treatment.

Clause 110 sets out the powers of the Mental Health Tribunal on receiving an

application for electroconvulsive treatment under this Division.

The Mental Health Tribunal must determine the application

and—

52

• make an order authorising a course of treatment if the

Tribunal is satisfied that the young patient has given

their informed consent in writing to the course of

treatment, or that the young patient does not have

capacity to give informed consent to the course of

treatment and there is no less restrictive way for the

young patient to be treated.; or

• make an order refusing treatment.

The Tribunal is required to make an order refusing treatment if it

is not satisfied of the matters required under this clause to

authorise a course of electroconvulsive treatment.

Clause 111 specifies the persons who must be notified by the Mental Health

Tribunal of the Tribunal's decision.

The clause also requires the Mental Health Tribunal to provide

persons notified with a copy of the order.

The clause also requires the authorised psychiatrist to take

reasonable steps to ensure that certain persons notified are

provided with a statement of rights.

Clause 112 sets out when a course of electroconvulsive treatment on a young

patient authorised by the Mental Health Tribunal under this

Division begins and ends.

Division 5—Use of electroconvulsive treatment on young persons

who are not patients

Clause 113 provides that in the case of a young person who is not a patient,

electroconvulsive treatment may only be performed after the

Mental Health Tribunal has made an order authorising the

treatment.

Clause 114 provides that a psychiatrist may apply to the Mental Health

Tribunal for an order authorising a course of electroconvulsive

treatment on a young person who is not a patient if the young

person gives informed consent in writing to the course of

electroconvulsive treatment or, if the young person does not have

capacity to give informed consent, the young person's medical

treatment decision-maker has given informed consent in writing

to the course of electroconvulsive treatment and the psychiatrist

is satisfied that in the circumstances there is no less restrictive

way for the young person to be treated.

53

Subclause (2) sets out the matters the psychiatrist must have

regard to in deciding whether there is a less restrictive way to

treat the young person, including the views and preferences of the

young person and the views of other specified persons.

The clause provides that a psychiatrist may make further

application to the Mental Health Tribunal during or after the

course of electroconvulsive treatment.

Clause 115 sets out the powers of the Mental Health Tribunal on receiving an

application for electroconvulsive treatment under this Division.

The Mental Health Tribunal must determine the application

and—

• make an order authorising a course of treatment if the

Tribunal is satisfied that the young person has given

their informed consent in writing to receiving the course

of electroconvulsive treatment, or that the young person

does not have capacity to give informed consent to

receiving the course of treatment and the young person's

medical treatment decision maker has given informed

consent in writing to the course of treatment and there is

no less restrictive way for the young person to be

treated; or

• make an order refusing treatment.

The Tribunal is required to make an order refusing treatment if it

is not satisfied of the matters required under this clause to

authorise a course of electroconvulsive treatment.

Clause 116 specifies the persons who must be notified by the Mental Health

Tribunal of the Tribunal's decision.

The clause also requires the Mental Health Tribunal to provide

persons notified with a copy of the order.

The clause also requires the psychiatrist to take reasonable steps

to ensure that certain persons notified are provided with a

statement of rights.

Clause 117 sets out when a course of electroconvulsive treatment on a young

person who is not a patient authorised by the Mental Health

Tribunal under this Division begins and ends.

54

Division 6—Reporting

Clause 118 requires an authorised psychiatrist treating a person under this

Part at a designated mental health service to give a written report

to the chief psychiatrist on the matters and within the time

requested by the chief psychiatrist.

Part 3.6—Neurosurgery for mental illness

Clause 119 provides that neurosurgery must not be performed on a person

unless the Mental Health Tribunal has by order approved the

neurosurgery under clause 121.

Clause 120 provides that a psychiatrist may apply to the Mental Health

Tribunal for approval to have neurosurgery performed on a

person if the person has personally given informed consent in

writing to the neurosurgery.

Clause 121 provides that the Mental Health Tribunal may either grant an

application and approve neurosurgery or refuse an application

and not approve neurosurgery.

The clause provides that the Mental Health Tribunal must not

approve neurosurgery unless it is satisfied that the person has

given informed consent in writing to the neurosurgery and the

neurosurgery will benefit the person.

Subclause (3) sets out the matters the Mental Health Tribunal

must have regard to in determining whether neurosurgery for

mental illness will benefit the person.

Clause 122 provides that the Mental Health Tribunal must give notice of an

order made under this Part to specified persons. The Mental

Health Tribunal must also give a copy of the order to the person

in respect of whom the order was made.

The clause also requires the psychiatrist to take reasonable steps

to ensure persons notified are provided with a statement of rights.

Clause 123 provides that if the neurosurgery for mental illness is performed,

the psychiatrist who made the application to the Mental Health

Tribunal or the psychiatrist treating the person following the

neurosurgery must provide the chief psychiatrist with a written

report.

55

A written report must describe the procedure and the outcome of

the neurosurgery. A report must be given within 3 months after

the neurosurgery and within 9 to 12 months after the surgery.

The chief psychiatrist may require the psychiatrist who gave the

report to provide further information relating to the neurosurgery

and the results of the neurosurgery.

Clause 124 provides that the Mental Health Tribunal must hear and

determine an application to approve neurosurgery for mental

illness within 30 business days after receipt of the application.

Part 3.7—Restrictive interventions

Division 1—Use of restrictive interventions under this Act

Clause 125 provides that mental health and wellbeing service providers and

persons who perform functions and exercise powers under this

Act should aim to reduce and, eventually, eliminate the use of

restrictive interventions in mental health treatment.

Clause 126 provides that a restrictive intervention must not be used on a

person receiving mental health and wellbeing services in a

designated mental health service other than in accordance with

this Division and Division 2. It also provides that chemical

restraint must not be used on a person who is being transported in

accordance with clause 139 other than in accordance with this

Division and Division 3.

Clause 127 provides that restrictive intervention may only be used on a

person specified in clause 126 to prevent imminent and serious

harm to that person or another person or, in the case of bodily

restraint, to administer treatment or medical treatment to the

person.

Clause 128 provides that restrictive intervention must not be used on a

person specified in clause 126 unless the use of a restrictive

intervention is necessary for a purpose specified in clause 127,

and all reasonable and less restrictive options have been tried or

considered and have been found to be unsuitable in the

circumstances.

56

Clause 129 provides that the authority to use a restrictive intervention under

this Part ends if a person who may authorise the use of the

restrictive intervention is satisfied that the use of the restrictive

intervention is no longer necessary for the purpose for which it

was authorised. That person must then immediately take steps to

release the person from the restrictive intervention.

Division 2—Use of restrictive interventions in a designated mental

health service

Clause 130 states that this Division applies in respect of a person receiving

mental health and wellbeing services in a designated mental

health service.

Clause 131 sets out the matters that a person authorising a restrictive

intervention must, to the greatest extent possible in the

circumstances, have regard to in determining whether no less

restrictive options are available.

Clause 132 sets out who can authorise the use of each kind of restrictive

intervention (seclusion, bodily restraint, chemical restraint) in a

designated mental health service and sets out circumstances in

which the authorisation can be given.

Clause 133 requires the authorised psychiatrist, registered medical

practitioner, nurse practitioner, nurse in charge or registered

nurse who authorised the restrictive intervention to ensure the

documentation of the reason the restrictive intervention was

necessary and all other less restrictive means tried or considered

and the reasons why those less restrictive means were found to be

unsuitable.

Clause 134 requires an authorised psychiatrist who authorises the use of a

restrictive intervention to, as soon as practicable after authorising

the intervention, examine the person and determine if the

continued use of the restrictive intervention is necessary for a

purpose specified in section 127.

Subclause (2) provides that if the person authorising the use of

restrictive intervention is not an authorised psychiatrist, the

person must notify the authorised psychiatrist of the use of a

restrictive intervention as soon as practicable after it is authorised

unless a notification under clause 132(6), which provides for the

authorisation of physical restraint by a registered nurse, has been

made.

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Subclause (3) requires the authorised psychiatrist who is notified

under subclause (2) to examine the person and determine if the

continued use of the restrictive intervention is necessary for a

purpose specified in section 127.

Subclause (4) provides that if the authorised psychiatrist is not

reasonably available to examine the person, the authorised

psychiatrist must ensure that the person is examined by a

registered medical practitioner and that the registered medical

practitioner determines if the continued use of the restrictive

intervention is necessary for a purpose specified in section 127.

Clause 135 requires the authorised psychiatrist to ensure that, as soon as

practicable after the commencement of the use of restrictive

intervention on a person, reasonable steps are taken to notify

specified persons and the primary non-legal mental health

advocacy service of its use, the nature of the restrictive

intervention and the reasons for using it.

Clause 136 requires the person who has authorised the use of a restrictive

intervention on a person under Division 2 of Part 3.7 to ensure

that the person receiving the restrictive intervention is provided

with facilities and supplies that meet the person's needs and

maintain the person's dignity. The clause sets out the matters that

the authorising person must, to the greatest extent possible in the

circumstances, have regard to for that purpose.

Clause 137 requires that a person subject to a restrictive intervention must be

monitored in accordance with this clause. The clause outlines

requirements for a person who authorises the use of restrictive

interventions, and the monitoring requirements for a person

subject to a restrictive intervention. This imposes an obligation

on the authoriser to ensure the person subject to a restrictive

intervention is monitored in accordance with this clause.

Clause 138 provides that the authorised psychiatrist must ensure that the use

of the restrictive intervention is reviewed as soon as practicable

after its use and that the person subject to the restrictive

intervention is offered an opportunity to review the intervention

with the designated mental health service.

This clause also provides that the authorised psychiatrist must

provide written reports to the chief psychiatrist on the use of a

restrictive interventions in the designated mental health service.

The chief psychiatrist will determine the details required to be

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provided in a report and the timeframes for providing a report to

the chief psychiatrist

Division 3—Chemical restraint during transport

Clause 139 provides that a registered medical practitioner may use, or direct

a specified person to use, chemical restraint for the purposes of

transporting a person to or from a designated mental health

service or other place under Part 5.2 or 5.3 of this Bill, only if the

registered medical practitioner is satisfied it is necessary for a

purpose specified in clause 127.

Division 4—Immunity

Clause 140 sets out the immunity in subclause (1) for a person exercising or

performing a function under this Part. A person is not personally

liable for anything done or omitted to be done in good faith in the

exercise of a power or the performance of a function under this

Part, or in the reasonable belief that the act or omission was in

the exercise of a power or the performance of a function under

this Part.

Subclause (2) provides that any liability resulting from an act or

omission that would attach to a person but for subclause (1),

attaches instead to the State.

Chapter 4—Compulsory assessment and treatment

The Royal Commission recommended that the statutory provisions relating to

compulsory assessment and treatment be "simplified and clarified" so that

they are no longer the defining feature of Victoria's mental health laws.

However, no recommendations were made as to specific legislative changes

to achieve this objective.

While the Royal Commission called for a reduction in the use of compulsory

treatment and measures to mitigate against its impact, it did not recommend

an end to compulsory treatment, nor any changes to the criteria for the

making of assessment orders, temporary treatment orders or treatment orders.

Accordingly, the compulsory assessment and treatment criteria of the Mental

Health Act 2014 are retained in the Bill awaiting the recommendation of an

independent review to undertake a comprehensive consideration of this issue.

The Review Panel comprises a judge, a clinician, two consumer

representatives, and a carer representative; with terms of reference developed

59

collaboratively with consumers, families, carers, supporters, workers in the

sector and service providers using co-design principles.

This review will also consider the related issue of how the legislation might

more closely align with personal treatment decision-making laws—such as

the Guardianship and Administration Act 2019 and Medical Treatment

Planning and Decisions Act 2016—to inform further proposed legislation in

2024. The review significantly brings forward consideration of these

decision-making laws from the timeframe set by the Royal Commission—as

part of the 5–7-year review of the Bill

The review will also consider key definitions of the Mental Health Act 2014

that may be considered out-dated and no longer fit for purpose, including the

terms "carer" and "patient". These definitions, and the concepts they

represent, are central to the legislative framework for compulsory assessment

and treatment and decision making.

The Bill continues to seek to minimise the use and duration of compulsory

treatment to ensure that the treatment is provided in the least restrictive

manner possible through specific criteria for compulsory treatment. As under

the Mental Health Act 2014, treatment orders will operate for a fixed

maximum duration. To ensure more timely oversight by the independent

Mental Health Tribunal, the maximum duration of community treatment

orders under the Bill is 6 months, a reduction from 12 months under the

Mental Health Act 2014.

In addition, the new decision-making principles establish a framework for

addressing the limitation of human rights that compulsory assessment and

treatment represent and set expectations of decision makers.

Part 4.1—Preliminary

Clause 141 provides an immunity for a person exercising a power or

performing a function under Chapter 4 of the Bill, stating that a

person is not personally liable for anything done or omitted to be

done in good faith in the exercise of a power or the performance

of a function under Chapter 4, or in the reasonable belief that the

act or omission was in the exercise of a power or the performance

of a function under Chapter 4.

Subclause (2) provides that any liability resulting from an act or

omission that would attach to a person but for subclause (1)

attaches instead to the State.

60

Clause 142 defines the compulsory assessment criteria that must be satisfied

before a person is made subject to an assessment order. These

compulsory assessment criteria remain substantively unchanged

from the Mental Health Act 2014 and will be subject to an

independent review in the months following passage of the Bill.

As is the case in the Mental Health Act 2014, the determination

of whether the setting of an assessment order is inpatient or in the

community is not considered as part of determining whether the

compulsory assessment criteria are met, but is determined

separately after the compulsory assessment criteria are found to

have been met.

Clause 143 sets out the compulsory treatment criteria that must be satisfied

before a person is made subject to a temporary treatment order or

a treatment order. These compulsory treatment criteria remain

substantively unchanged from the Mental Health Act 2014 and

will be subject to an independent review in the months following

passage of the Bill.

As is the case in the Mental Health Act 2014, the determination

of whether the setting of a temporary treatment order or treatment

order is inpatient or in the community is not considered as part of

determining whether the compulsory treatment criteria are met,

but is determined separately after the compulsory treatment

criteria are found to have been met.

Part 4.2—Assessment orders

Division 1—Making of assessment order

Clause 144 provides that a registered medical practitioner or an authorised

mental health practitioner may make an assessment order in

respect of a person if the practitioner has examined the person

within the previous 24 hours, and is satisfied that the compulsory

assessment criteria apply to the person.

The clause provides that the practitioner must have regard to any

relevant information communicated by the person being

examined and may have regard to any other relevant information.

The clause also sets out specified steps to be taken by the

practitioner prior to an examination to ensure that the person to

be examined understands what is occurring.

61

Clause 145 provides that a registered medical practitioner or an authorised

mental health practitioner who makes an assessment order must

determine whether the order is a community assessment order or

an inpatient assessment order.

Subclause (2) provides that the practitioner must not make a

person subject to an inpatient assessment order unless the

practitioner is satisfied that the person cannot be assessed in the

community.

Clause 146 provides that an assessment order authorises an authorised

psychiatrist for the responsible designated mental health service

to compulsorily examine the patient for the purposes of

determining whether the compulsory treatment criteria apply.

The clause further provides that a community assessment order

enables the patient to be examined in the community, and that an

inpatient assessment order authorises the detention of the patient

for the purpose of transporting the patient to the service and for

the purpose of examining the patient at the service.

Chapter 5 deals with powers to take a person into care and

control for the purposes of transporting the person to or from a

designated mental health service or any other place as provided

under the Bill.

Clause 147 provides that a community assessment order expires 24 hours

after it is made, and an inpatient assessment order expires either

24 hours after the patient is received at a designated mental

health service or 72 hours after the order is made, whichever

occurs first.

Clause 148 specifies the contents of an assessment order, including the date

and time that the order was made, and the designated mental

health service which is to be responsible for assessing the

assessment patient. There is also a requirement that information

about the nature and effect of an assessment order be contained in

the assessment order, and there is provision for the inclusion of

any other prescribed information.

Clause 149 provides that an assessment patient who is subject to an inpatient

assessment order must be transported to the responsible

designated mental health service as soon as practicable after an

inpatient assessment order is made. This is to be arranged by the

registered medical practitioner or authorised mental health

practitioner who makes the order.

62

Clause 150 sets out the requirements regarding information to be provided to

a person made subject to an assessment order, including

informing the person that they are subject to an assessment order,

explaining its purpose and effect, and providing the person with a

copy of the order and a statement of rights.

Clause 151 provides that a registered medical practitioner or an authorised

mental health practitioner must ensure that an authorised

psychiatrist for the responsible designated mental health service

is notified of the making of an assessment order and given a copy

of the order as soon as practicable after the practitioner makes the

assessment order.

Clause 152 provides that an authorised psychiatrist must ensure all

reasonable steps are taken to notify specified persons as soon as

practicable after being notified of the making an assessment

order, and to give those persons a copy of the order and the

statement of rights.

Division 2—Variation of assessment order

Clause 153 provides for the variation of an inpatient assessment order to a

community assessment order, and a community assessment order

to an inpatient assessment order.

The clause provides that a registered medical practitioner or an

authorised mental health practitioner must not vary a community

assessment order to an inpatient assessment order unless they are

satisfied that the assessment cannot occur in the community.

The clause sets out that once a community assessment order is

varied to an inpatient assessment order, the registered medical

practitioner or authorised mental health practitioner who varied

the order must arrange for the assessment patient to be

transported to the responsible designated mental health service as

soon as practicable after the variation.

Subclause (5) sets out information that must be included in an

order varied under this clause.

Clause 154 provides for the duration of a varied assessment order.

Subclause (1) provides that an inpatient assessment order varied

to a community assessment order expires either 24 hours after the

patient was received at the designated mental health service or

24 hours after the variation of the order, whichever occurs first.

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Subclause (2) provides that a community assessment order varied

to an inpatient assessment order expires 24 hours after the

variation of the order.

Clause 155 provides that an assessment order may, at any time before an

assessment patient is examined under the order, be varied by a

registered medical practitioner or an authorised mental health

practitioner to specify a different designated mental health

service to be responsible for the assessment of the patient.

Subclause (2) provides that the practitioner who varies the order

must arrange for the assessment patient to be transported to the

responsible designated mental health service as soon as

practicable, but no later than 24 hours, after the variation of the

order.

Subclause (3) stipulates the information required to be included

in an assessment order varied under this clause.

Clause 156 sets out requirements regarding information to be provided to a

person subject to a varied assessment order.

Clause 157 provides that a registered medical practitioner or an authorised

mental health practitioner who varies an assessment order under

clause 153 or 155 must ensure that an authorised psychiatrist for

the responsible designated mental health service is notified of the

variation of the order and given a copy of the varied order as

soon as practicable after varying an assessment order.

Clause 158 sets out requirements for notifying other persons of the variation

of an assessment order.

Subclause (1) provides that if an assessment order is varied under

clause 153 or a community assessment order is varied under

clause 155, the authorised psychiatrist who is notified of the

variation must ensure all reasonable steps are taken to notify

specified persons as soon as practicable after being notified of the

variation of the assessment order.

Subclause (2) stipulates that if an inpatient assessment order is

varied under clause 155, an authorised psychiatrist for the

responsible designated mental health service must take all

reasonable steps to notify certain persons of the variation of the

order, and provide them with a copy of the varied order and a

statement of rights, as soon as practicable after the assessment

patient is received at the service.

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Division 3—Examination and restrictions on treatment

Clause 159 provides that an authorised psychiatrist for the responsible

designated mental health service must examine a person made

subject to an assessment order to determine whether the

compulsory treatment criteria apply to the patient as soon as

practicable after the order is made (in the case of a community

assessment order) or after the person has been received at the

service (in the case of an inpatient assessment order).

Clause 160 provides that a person subject to an assessment order must not be

given treatment unless the person provides informed consent or

the criteria specified for urgent treatment are met.

Division 4—Revocation and extension of assessment order

Clause 161 provides that an authorised psychiatrist must immediately revoke

an assessment order if the authorised psychiatrist determines that

the compulsory treatment criteria do not apply to the assessment

patient.

Clause 162 sets out the information to be given to a person who was subject

to an assessment order if an authorised psychiatrist revokes that

order.

Clause 163 provides that, as soon as practicable after an authorised

psychiatrist revokes an assessment order, the authorised

psychiatrist must ensure all reasonable steps are taken to notify

specified persons that the assessment order has been revoked and

give a copy of a revocation notice to those persons.

Clause 164 provides that an assessment order is revoked if a temporary

treatment order is made in respect of the assessment patient.

Clause 165 provides for the extension of an assessment order for up to

24 hours (on no more than 2 occasions) if, after examining the

patient, an authorised psychiatrist is not able to determine

whether the compulsory treatment criteria apply to that patient.

Subclause (3) sets out the information that must be included in

the extended assessment order.

Clause 166 sets out the information to be given to an assessment patient in

relation to the extension of an assessment order.

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Clause 167 provides that, as soon as practicable after an authorised

psychiatrist extends an assessment order, the authorised

psychiatrist must ensure all reasonable steps are taken to notify

specified persons that the authorised psychiatrist has extended an

assessment order and provide a copy of the extended order and a

statement of rights to those persons.

Part 4.3—Court assessment orders

Division 1—Notifications after making of court assessment order

Clause 168 sets out the information to be given to a person subject to a court

assessment order as soon as practicable after an authorised

psychiatrist has been notified of the making of the court

assessment order, including a copy of the order and a statement

of rights. The power to make a court assessment order sits with

courts under Division 1 of Part 5 of the Sentencing Act 1991.

Clause 169 sets out the information to be given to specified persons as soon

as practicable after an authorised psychiatrist has been notified of

the making of a court assessment order, including a copy of the

order and a statement of rights. The persons specified include

any legal representative of the court assessment patient, if they

were not present when the court assessment order was made.

Division 2—Variation of court assessment order

Clause 170 provides that an authorised psychiatrist may in certain

circumstances change the setting of an assessment from inpatient

to community or community to inpatient, despite anything to the

contrary in the court assessment order.

The clause provides that an assessment change must be recorded

in writing and include specified information. This is intended to

provide for flexibility in the assessment setting, to ensure that an

authorised psychiatrist's clinical judgement about the appropriate

setting for an assessment can be given effect. This will ensure

that, if an authorised psychiatrist is satisfied that an assessment

can be conducted in the community, they are not required to

carry out the assessment in a more restrictive inpatient

environment.

Clause 171 sets out the information to be given to a person subject to an

assessment change, including a record of the assessment change

and a statement of rights.

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Clause 172 provides that an authorised psychiatrist must notify the court that

made the court assessment order of an assessment change as soon

as practicable after making the change.

Clause 173 provides that an authorised psychiatrist must ensure all

reasonable steps are taken to notify the specified persons of an

assessment change as soon as practicable after the change is

made, including providing them with a record of the assessment

change and a statement of rights.

Division 3—Assessment and restrictions on treatment

Clause 174 provides that an authorised psychiatrist must examine a person

subject to a court assessment order as soon as practicable after a

community court assessment order is made or (in the case of an

inpatient court assessment order) as soon as practicable after the

person is received at the designated mental health service. Prior

to conducting the examination, the authorised psychiatrist must

take certain steps to identify themselves and explain the process

to the court assessment patient, including providing a copy of the

court assessment order if requested.

Clause 175 provides that a person subject to a court assessment order must

not be given treatment. The clause carves out a number of

exceptions to this rule, including if the person gives informed

consent, if the criteria specified for urgent treatment are met, if

the patient was subject to a temporary treatment order or

treatment order immediately before the court assessment order

was made and that order is still in force, or if an authorised

psychiatrist makes a temporary treatment order in respect of the

court assessment patient.

Clause 176 sets out the time periods within which the assessment of a person

subject to a court assessment order must be completed. In the

case of a community court assessment order, the assessment must

be completed within 7 days after the court assessment order is

made. In the case of an inpatient court assessment order, the

assessment must be completed within 7 days after the person has

been received at the designated mental health service referred to

in section 91(1)(d) of the Sentencing Act 1991.

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Clause 177 sets out the actions that an authorised psychiatrist must ensure are

taken as soon as practicable after completing an assessment of a

person subject to a court assessment order. This includes

ensuring that a copy of the assessment report is provided to the

court.

Subclause (2) sets out the required contents of the report to be

provided to the court.

Clause 178 sets out the information to be given to a person subject to a court

assessment order after an authorised psychiatrist completes an

assessment of the person. The authorised psychiatrist must

ensure that all reasonable steps are taken to inform the court

assessment patient that the assessment has been completed as

soon as practicable after completion of the assessment.

Clause 179 provides that an authorised psychiatrist who completes an

assessment of a person subject to a court assessment order must

ensure all reasonable steps are taken to notify specified persons

of the completion of that assessment as soon as practicable after

the completion of that assessment.

Part 4.4—Temporary treatment orders

Clause 180 sets out the circumstances in which an authorised psychiatrist

may make a temporary treatment order. The authorised

psychiatrist must be satisfied, after examining the assessment

patient or court assessment patient, that the compulsory treatment

criteria apply to the assessment patient or court assessment

patient.

Subclause (2) provides that in determining whether to make a

temporary treatment order in respect of an assessment patient or

court assessment patient, the authorised psychiatrist must, to the

extent that is reasonable, take into account the views and

preferences of the person who would be subject to the order and

the views of other specified persons. The authorised psychiatrist

may have regard to any other relevant information.

Subclause (3) provides that the person who makes the temporary

treatment order must not be the same person who made the

assessment order in respect of the assessment patient.

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Clause 181 provides that an authorised psychiatrist who makes a temporary

treatment order must determine whether the temporary treatment

order is a community temporary treatment order or an inpatient

temporary treatment order. The authorised psychiatrist must not

make a person subject to an inpatient temporary treatment order

unless satisfied that the person cannot be treated in the

community.

Clause 182 provides that a temporary treatment order authorises compulsory

treatment to be given to the temporary treatment patient.

Subclause (2) provides that a community temporary treatment

order enables the temporary treatment patient to be treated in the

community. Subclause (3) provides that an inpatient temporary

treatment order authorises detention of the temporary treatment

patient for the purpose of transporting them to the responsible

designated mental health service, and for the purpose of

providing treatment to the person at the service under the order.

Chapter 5 deals with powers to take a person into care and

control for the purposes of transporting to or from a designated

mental health service or any other place as provided under the

Bill.

Clause 183 provides that a temporary treatment order expires 28 days after it

is made. This clause expressly clarifies that the day the order is

made is intended to be included as a day in the 28 day period.

For example, if a temporary treatment order is made on 2 July, it

would expire at the end of 29 July.

Clause 184 specifies the contents of a temporary treatment order, including

the date and time the order was made, whether it is a community

temporary treatment order or an inpatient temporary treatment

order and the responsible designated mental health service.

There is provision for the inclusion of any other prescribed

information.

Clause 185 provides that if a person subject to an inpatient temporary

treatment order is not already at the responsible designated

mental health service, the authorised psychiatrist who makes the

order must ensure that arrangements are made for the person to

be transported to the service as soon as practicable after the order

is made.

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Clause 186 provides that, as soon as practicable after an authorised

psychiatrist makes a temporary treatment order, the authorised

psychiatrist must ensure all reasonable steps are taken to inform

the patient subject to the order of the making of the order and its

purpose and effect. The authorised psychiatrist must also give a

copy of the order and statement of rights to the patient.

Clause 187 requires an authorised psychiatrist who makes a temporary

treatment order to ensure that the Mental Health Tribunal is

notified as soon as practicable after the making of the temporary

treatment order.

Clause 188 provides that, as soon as practicable after an authorised

psychiatrist makes a temporary treatment order, the authorised

psychiatrist must ensure all reasonable steps are taken to notify

specified persons of the making of a temporary treatment order

and give a copy of the order and statement of rights to those

persons. The authorised psychiatrist must also ensure that the

primary non-legal mental health advocacy service provider is

notified of the making of the order.

Part 4.5—Treatment orders

Clause 189 requires the Mental Health Tribunal to conduct a hearing to

determine whether to make a treatment order in respect of a

temporary treatment patient prior to the expiry of the temporary

treatment order, unless the temporary treatment order is revoked

before the hearing.

This clause should be read alongside clause 374, which provides

that the Mental Health Tribunal must not adjourn a hearing for a

person who is subject to a temporary treatment order to a date

that is after the order expires unless the Tribunal is satisfied that

exceptional circumstances exist. In those circumstances, the

Mental Health Tribunal may extend the duration of the

temporary treatment order for a period not exceeding

10 business days.

Clause 190 provides that an authorised psychiatrist may apply to the Mental

Health Tribunal for another treatment order to be made for a

treatment patient if they have examined the patient and are

satisfied the compulsory treatment criteria still apply to the

treatment patient. The authorised psychiatrist must have regard

70

to the views and preferences of the patient and other specified

persons, and may have regard to any other relevant information.

Subclause (3) sets out what must occur prior to the authorised

psychiatrist examining the treatment patient, including that the

authorised psychiatrist must identify themselves to the patient,

inform them as to what is occurring, and provide a copy of the

current treatment order if requested.

Clause 191 provides that an application to the Mental Health Tribunal for a

treatment order by an authorised psychiatrist must be made at

least 10 business days before the expiry of the treatment order to

which the person is currently subject, and the application must

specify the date and time of the most recent examination

conducted on the patient by the authorised psychiatrist. The

principal registrar of the Mental Health Tribunal may accept an

application made less than 10 days before the expiry of the

current treatment order if it is reasonable to do so having regard

to all of the circumstances.

Subclause (3) provides that the Mental Health Tribunal must

conduct a hearing to determine an application under clause 190.

Clause 192 sets out what the Mental Health Tribunal must do after

conducting a hearing regarding the making of a treatment order.

Subclause (2) clause provides that the Mental Health Tribunal

must make a treatment order if satisfied the compulsory treatment

criteria apply to the person who is the subject of the proceeding,

or revoke the temporary treatment order or treatment order to

which the person is currently subject if not satisfied the

compulsory treatment criteria apply to the person.

The clause provides that when determining whether to make a

treatment order and the duration and category of the order, the

Mental Health Tribunal must, to the extent that it is reasonable,

have regard to the views and preferences of the person who

would be subject to the treatment order together with the views of

other specified persons.

Clause 193 provides that the Mental Health Tribunal must specify the period

of a treatment order. The order must not exceed more than

3 months for persons under 18 years of age and 6 months for

persons 18 years of age and over.

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This is a significant reduction in the maximum duration of a

community treatment order in comparison to the Mental Health

Act 2014. It also brings into alignment the maximum duration of

inpatient and community treatment orders, in recognition that the

existence of a treatment order is inherently restrictive, regardless

of its setting.

Clause 194 provides that the Mental Health Tribunal must determine whether

a treatment order is a community treatment order or an inpatient

treatment order.

The clause provides that the Mental Health Tribunal must not

make an inpatient treatment order unless satisfied that the

treatment of the person subject to the order cannot be provided in

the community.

Clause 195 provides that a treatment order authorises compulsory treatment

to be given to the treatment patient. A community treatment

order enables the treatment patient to be treated in the

community. An inpatient treatment order authorises detention of

the treatment patient for the purpose of transporting them to the

responsible designated mental health service, and for the purpose

of providing treatment to the patient at the service under the

order.

Chapter 5 deals with powers to take a person into care and

control for the purposes of transporting to or from a designated

mental health service or any other place as provided under the

Bill.

Clause 196 sets out the required contents of a treatment order, including the

date the order was made, the duration of the order, whether it is a

community or inpatient treatment order, and the responsible

designated mental health service. There is also provision for the

inclusion of any prescribed information.

Clause 197 requires an authorised psychiatrist for the responsible designated

mental health service to ensure that arrangements are made for a

person subject to an inpatient treatment order to be transported to

the service as soon as practicable after the Mental Health

Tribunal makes the inpatient treatment order, if the person is not

already present at the designated mental health service.

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Clause 198 requires an authorised psychiatrist for the responsible designated

mental health service to ensure all reasonable steps are taken to

inform the treatment patient that the patient is subject to a

treatment order, and sets out the information to be given to the

treatment patient, including a copy of the order and a statement

of rights.

Clause 199 requires an authorised psychiatrist for the responsible designated

mental health service to ensure all reasonable steps are taken to

notify specified persons of the making of a treatment order, and

to provide them with a copy of the treatment order and a

statement of rights.

The clause also provides that the authorised psychiatrist must

ensure that the primary non-legal mental health advocacy service

provider is notified of the making of the order.

Part 4.6—Variation and revocation of temporary treatment

orders and treatment orders

Division 1—Variation of temporary treatment orders and

treatment orders

Clause 200 provides that an authorised psychiatrist may vary a community

temporary treatment order or community treatment order to an

inpatient order.

The clause provides that, before varying a community order to an

inpatient order, the authorised psychiatrist must be satisfied that

treatment cannot occur in the community, and must have regard,

to the extent reasonable in the circumstances, to the views and

preferences of the person subject to the order and the views of

specified persons. The authorised psychiatrist may have regard

to any other relevant information, including information

communicated to the authorised psychiatrist by any other person.

Subclause (3) provides that the variation of an order under this

clause does not affect the duration of the order.

Subclause (4) requires that, if a person who is subject to an order

that is varied to an inpatient temporary treatment order or

treatment order is not already at the responsible designated

mental health service, the authorised psychiatrist must ensure that

arrangements are made for the person to be transported to the

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responsible designated mental health service as soon as

practicable after the order is varied.

Clause 201 provides that an authorised psychiatrist may vary an inpatient

temporary treatment order to a community temporary treatment

order or an inpatient treatment order to a community treatment

order.

The clause provides that, before varying an inpatient temporary

treatment order or inpatient treatment order to a community

order, the authorised psychiatrist must have regard, to the extent

reasonable in the circumstances, to the views and preferences of

the person subject to the order and to the views of other specified

persons. The authorised psychiatrist may also have regard to any

other relevant information, including information communicated

to the authorised psychiatrist by any other person.

Subclause (3) provides that the variation of an order under this

clause does not affect the duration of the order.

Clause 202 sets out specified information to be included on an order varied

under clause 200 or 201, including the nature of the variation and

the date and time the order was varied. There is also provision

for the inclusion of any other prescribed information.

Clause 203 provides that, as soon as practicable after an authorised

psychiatrist varies an order under clause 200 or 201, the

authorised psychiatrist must ensure all reasonable steps are taken

to notify specified entities that the order has been varied, and

give a copy of the varied order and statement of rights to those

entities.

The specified entities include the person who is subject to the

order, the Mental Health Tribunal and the primary non-legal

mental health advocacy service provider.

Clause 204 requires the Mental Health Tribunal to conduct a hearing within

28 days after a community treatment order is varied to an

inpatient treatment order, beginning on and including the day the

order was varied, to determine whether the treatment patient

should be subject to the inpatient treatment order.

74

This clause expressly clarifies that the day the order is varied is

intended to be included as a day in the 28 day period. For

example, if a community treatment order is varied to an inpatient

treatment order on 2 July, the hearing must be conducted before

the end of 29 July.

Subclause (2) provides that a hearing is not required if the

inpatient treatment order is revoked, or varied to a community

treatment order, before the hearing is to take place.

Subclause (3) sets out the powers of the Tribunal on hearing a

variation under this clause, providing that the Tribunal must

confirm, vary or revoke the inpatient treatment order, depending

on whether the Tribunal is satisfied that the compulsory treatment

criteria still apply to the treatment patient and whether or not that

patient could be treated in the community.

Subclause (4) provides that the Tribunal must have regard, to the

extent reasonable in the circumstances, to the views and

preferences of the person subject to the order and to the views of

other specified persons.

Division 2—Revocation and expiry of temporary treatment orders

and treatment orders

Clause 205 provides that an authorised psychiatrist must immediately revoke

a temporary treatment order or treatment order if the authorised

psychiatrist determines that the compulsory treatment criteria for

making a temporary treatment order or treatment order do not

apply to the person subject to the order. This requirement is a

crucial feature of the rights-centred approach to compulsory

treatment. An authorised psychiatrist's consideration of whether

the compulsory treatment criteria apply to a person should be

regular, ongoing, and directed at identifying as quickly as

possible when a person no longer meets the criteria so they can

be released from their order.

Clause 206 provides that a person subject to a temporary treatment order or a

treatment order may apply to the Mental Health Tribunal at any

time to have the order revoked.

The clause also provides that specified persons can apply to the

Mental Health Tribunal on behalf of a person subject to a

temporary treatment order or treatment order to have the order

revoked.

75

Clause 207 sets out the powers of the Mental Health Tribunal on receiving an

application to revoke a temporary treatment order or treatment

order. The Tribunal must hear and determine the application as

soon as practicable after the application is made, and must either

confirm the temporary treatment order or treatment order if

satisfied that the compulsory treatment criteria still apply to the

person subject to the order, or revoke the order if not satisfied

that the compulsory treatment criteria still apply to that person.

Subclause (3) provides that in determining the application, the

Tribunal must have regard, to the extent reasonable in the

circumstances, to the views and preferences of the person subject

to the order and to the views of other specified persons.

Subclause (4) provides that after confirming a temporary

treatment order or treatment order, the Mental Health Tribunal

must determine whether the order is a community order or an

inpatient order. Subclause (5) stipulates that the Mental Health

Tribunal must not confirm an order to be an inpatient order

unless it is satisfied that the person cannot be treated in the

community.

Clause 208 provides that a temporary treatment order is revoked in specified

circumstances. These are in addition to revocation by an

authorised psychiatrist under clause 205 or by the Mental Health

Tribunal under clause 192(2) or 207(2). The circumstances in

which a temporary treatment order is revoked are when a

treatment order, secure treatment order or court secure treatment

order is made in respect of the person, or if they are detained

pursuant to section 30(2) or 30A(3) of the Crimes (Mental

Impairment and Unfitness to be Tried) Act 1997.

Clause 209 provides that a treatment order is revoked in specified

circumstances. These are in addition to revocation by an

authorised psychiatrist under clause 205 or by the Mental Health

Tribunal under clause 192(2), 204(3) or 207(2). The

circumstances in which a treatment order is revoked are when

another treatment order, a secure treatment order or a court

secure treatment order is made in respect of the person, or if they

are detained pursuant to section 30(2) or 30A(3) of the Crimes

(Mental Impairment and Unfitness to be Tried) Act 1997.

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Clause 210 provides that an authorised psychiatrist who revokes a temporary

treatment order or treatment order must, as soon as practicable

after the order is revoked, inform the person who was subject to

the order that it has been revoked, explain the reasoning and

effects of the revocation, and give written notice providing

specified information to the person who was subject to the order.

Clause 211 provides that an authorised psychiatrist who revokes a temporary

treatment order or treatment order must ensure all reasonable

steps are taken to notify specified persons that the order has been

revoked, and give a copy of the notice of revocation to those

persons. The clause also provides that the authorised psychiatrist

must ensure the Mental Health Tribunal and primary non-legal

mental health advocacy service provider are notified of the

revocation.

Part 4.7—Leave of absence

Clause 212 provides for an authorised psychiatrist to grant a leave of absence

from a designated mental health service to a person subject to

specified inpatient orders. Subject to subclause (3), the leave

may be granted for any purpose and period the authorised

psychiatrist is satisfied is appropriate. The leave may be granted

subject to any conditions the authorised psychiatrist considers

appropriate.

Subclause (3) provides that the authorised psychiatrist may only

grant a leave of absence to a person subject to an inpatient

treatment order and an intensive monitored supervision order if it

is necessary for the person to receive urgent or necessary medical

treatment at other premises, and for a maximum period of 7 days.

An authorised psychiatrist is not prevented from granting a

further leave of absence, irrespective of subclause (3)(b), to a

person who is subject to an inpatient treatment order and an

intensive monitored supervision order if it continues to be

necessary for the person to receive urgent or necessary medical

treatment at other premises.

Clause 213 provides that an authorised psychiatrist may vary the period or

any conditions of a leave of absence. If the leave of absence has

been granted to a person subject to an inpatient treatment order

and an intensive monitored supervision order, any variation of

the period of leave must not exceed the maximum period of

7 days for that leave.

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Clause 214 provides that in determining the period and any conditions of a

leave of absence or whether to vary the period or any conditions

of a leave of absence, an authorised psychiatrist must, to the

extent that it is reasonable in the circumstances, have regard to

the purpose of the leave, the need to ensure the health and safety

of the person and the safety of any other person and to minimise

the risk of serious harm to those persons, the views and

preferences of the person (including views or preferences

expressed in the person's advance statement of preferences, if

any, and the views or preferences expressed by the person's

nominated support person), and the views of other specified

persons.

Clause 215 requires that following a decision to grant or vary a leave of

absence, the authorised psychiatrist who made the decision must

ensure all reasonable steps are taken to inform the person that the

leave of absence has been granted or varied and explain the

purpose and effect of the granting or variation of the leave of

absence.

Clause 216 provides that an authorised psychiatrist who grants or varies a

leave of absence must ensure all reasonable steps are taken to

notify specified persons that leave has been granted or varied.

Clause 217 provides that an authorised psychiatrist may revoke a leave of

absence granted to a person by written notice and require the

person to return to the designated mental health service if

satisfied that it is necessary to prevent serious deterioration in the

person's mental or physical health, or serious harm to the person

or to another person, or if the person has failed to comply with a

condition of the leave of absence, or if the purpose for the leave

of absence no longer exists.

This clause sets out the criteria of which the authorised

psychiatrist must be satisfied before revoking a leave of absence.

Clause 218 provides that following a decision to revoke a leave of absence,

the authorised psychiatrist who made the decision must ensure all

reasonable steps are taken to inform the person that the leave of

absence has been revoked and explain the purpose and effect of

that revocation.

Clause 219 provides that an authorised psychiatrist who revokes a leave of

absence must ensure all reasonable steps are taken to notify

specified persons that the leave has been revoked.

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Clause 220 provides that if a person is absent without leave from a

designated mental health service, an authorised psychiatrist for

the service must ensure reasonable steps are taken to notify

specified persons that the person is absent without leave.

Clause 221 provides that an authorised psychiatrist may arrange for a person

absent without leave from a designated mental health service to

be transported to a designated mental health service.

Part 4.8—Assessment or treatment by another designated mental

health service

Clause 222 provides that the purpose of this Part is to enable an authorised

psychiatrist to vary a court assessment order, temporary treatment

order or treatment order to allow the assessment or treatment of

the person subject to the order to be provided by a different

designated mental health service. It should be noted that a

similar power exists in clause 155 with respect to assessment

orders.

Clause 223 sets out the circumstances in which an authorised psychiatrist

may vary an order. The authorised psychiatrist must be satisfied

that the variation is necessary for the person's assessment or

treatment, and the authorised psychiatrist of the receiving

designated mental health service must approve of the variation.

The clause also provides that the chief psychiatrist may direct an

authorised psychiatrist to vary an order to specify that the

assessment or treatment of the person subject to the order will be

provided by another designated mental health service if the chief

psychiatrist is satisfied that the variation is necessary for the

person's assessment or treatment.

Clause 224 provides that in varying or making a direction to vary an order

under clause 223, the authorised psychiatrist or chief psychiatrist

must have regard to the views and preferences of the person

subject to the order (including as expressed in the person's

advance statement of preferences, if any, and the views or

preferences expressed by the person's nominated support person),

and the views of other specified persons.

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Clause 225 provides for certain steps to be taken as appropriate to the

circumstances as soon as practicable after an order is varied

under clause 223. The authorised psychiatrist who varies the

order must ensure that reasonable steps are taken to inform the

person subject to the varied order of the variation, to provide

documents relevant to the assessment or treatment of the person

to the designated mental health service which is to provide the

assessment or treatment, and to notify persons specified within

subclause (1)(c) of the variation. There is also an obligation in

subclause (2) for the authorised psychiatrist to arrange transport

of the person subject to the varied order as soon as practicable

after the variation of the order, if the order is a specified inpatient

order.

Clause 226 provides that within 20 business days of an order being varied

under clause 223, the person subject to the order and specified

other persons may apply to the Mental Health Tribunal for a

review of the decision to vary, or direct the variation of, the

order.

Subclause (3) provides that on hearing an application under this

clause, the Mental Health Tribunal must have regard to the same

factors considered by the authorised psychiatrist or chief

psychiatrist under clause 224. The Mental Health Tribunal may

make an order directing that the person be returned to the original

designated mental health service for assessment or treatment, or

directing the person remain subject to the order as varied.

Part 4.9—Impact of detention of person if subject to order under

this Chapter

Clause 227 provides that an assessment order, a court assessment order, a

temporary treatment order or a treatment order do not have effect

while a person subject to the order is detained in custody.

The clause provides that any of these orders expire at the time the

order would otherwise have expired despite any period during

which it has no effect.

The clause defines detained in custody to mean, for purposes of

this clause, a prison or police gaol within the meaning of the

Corrections Act 1986, a remand centre, youth justice centre or

youth residential centre within the meaning of the Children,

Youth and Families Act 2005, or immigration detention within

the meaning of section 5 of the Migration Act 1958 of the

80

Commonwealth unless the person is assessed or receives

treatment as an inpatient.

Chapter 5—Mental health crisis response and transport by

authorised persons

Recommendation 10 of the Royal Commission's report proposed that the

Victorian Government "ensure that, wherever possible, emergency services'

responses to people experiencing time-critical mental health crises are led by

health professionals rather than police." Police interventions in complex

mental health situations can compound stigma and increase the risk of trauma

for individuals.

Under the Mental Health Act 2014, only police have the legislated ability to

apprehend a person who has an apparent mental illness and is at imminent

risk of harm to themselves or others for the purposes of connecting that

person to assessment and support, typically at a hospital emergency

department. Further, even when a person could be safely transported by

ambulance alone, under the Mental Health Act 2014, police must still

accompany the person, either in the ambulance or via escort of the ambulance

and wait with them until the appropriate medical professional is able to take

over the person's care. This can result in long waiting times in emergency

departments for the individual and emergency responders.

The Royal Commission recommended reducing police involvement in mental

health crises, shifting away from police being the default responders in such

situations, moving instead towards a "health led response". The Royal

Commission acknowledged, however, that moving to a health led response

will require significant changes to system design, as well as and workforce

availability and capability. The Royal Commission therefore recommended

full implementation of a new health led model for mental health crisis

intervention by the end of 2024, allowing time to design, test, develop and

mobilise these resources.

To support transition to a new health led response model to time-critical

mental health crises and reduce police involvement, the Bill expands on the

Mental Health Act 2014 to include: more authorised persons (in addition to

police and Protective Services Officers) who can take a person into their care

and control for the purpose of arranging examination for a mental health

assessment, more flexible options for examination locations and transport,

and modernised provisions to afford better protection of people's privacy and

dignity when being searched.

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Within the group of authorised persons under Chapter 5 of the Bill, a

subset—police officers, protective services officers, registered paramedics

employed by an ambulance service (with a capacity in the future to include

members of a prescribed class of persons, for example, registered nurses

employed by Ambulance Victoria)—will be able to take a person into care

and control for the purpose of arranging for them to be examined under

Chapter 4 of the Bill if the authorised person is satisfied that—

• the person appears to have mental illness; and

• because of the person's apparent mental illness, it is necessary

to take the person into care and control to prevent serious and

imminent harm to the person or to another person.

The Bill takes an enabling approach, providing authorised persons with

several options when arranging for a person under their care and control to be

examined for an assessment order. For example, the authorised person may

arrange for an examination without transporting the person, and instead

arrange for the examination to be conducted at or near the place a person has

been taken into care and control if appropriate. This could occur remotely

(i.e. by telehealth or videoconference) or face to face and would allow a

person to receive help in their home, for example, rather than being

transported to an emergency department, which may increase distress.

Options for transport will also be more flexible, allowing a person to be

transported without police attendance wherever it is safe to do so.

The Bill also provides that authorised persons can take a person into their

care and control for the purposes of transport to or from a designated mental

health service or any other place as provided under any provision of the Bill.

Authorised persons include police officers and protective services officers

and authorised health professionals, including registered paramedics

employed by an ambulance service, registered medical practitioners

employed or engaged by a designated mental health service, and authorised

mental health practitioners. Other classes of person, including other health

professionals will be able to be prescribed progressively by regulation as the

models of care envisaged by the Royal Commission are developed and rolled

out. While police officers and Protective Service Officers will also remain

listed as authorised persons to enable them to take a person into their care and

control for transport, it is intended that health professionals will exercise the

power of transport where reasonably practicable and safe to do so.

Importantly, Chapter 5 of the Bill contains strengthened principles that apply

to the operation of these powers, in addition to the least restriction principle

present in the Mental Health Act 2014.

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Firstly, the health led response principle requires that, so far as reasonably

practicable, the powers of authorised persons be exercised by authorised

health professionals or, if it is not reasonably practicable for the powers to be

exercised by authorised health professionals , the exercise of the powers are,

wherever reasonably practicable, informed by another authorised person who

is an authorised health professionals, or the advice of a registered medical

practitioner, an authorised mental health practitioner, a registered nurse or a

registered paramedic.

The least restrictive approach principle requires that, so far as is reasonably

practicable in the circumstances, powers must be exercise in the least

restrictive way possible. It is the intention of the least restrictive approach

principle that authorised persons exercising powers under Chapter 5 will

respond to the needs of people in mental health crisis in the least restrictive

way possible to minimise any interference with that person's human rights,

including their liberty, privacy and dignity. For example, transport of a

person under care and control should always be undertaken in the least

restrictive way possible. For the purposes of transport, this means

consideration of whether a person can be safety transported by ambulance or

other allowable mode of transport. If required to ensure the safety of any

person, an authorised health professional may have care and control of a

person to transport them to a specified body with police providing assistance

to reduce safety risks. In addition, where practicable, examination in the

community (including the person's home) is preferred because it is least

restrictive of the individual's rights and avoids unnecessary transport.

While there will always be instances of mental health crisis when police are

required to attend for safety reasons, the Bill is intended to promote

alternative, health led and less restrictive approaches where practicable and

safe. In addition, there may be situations, particularly in rural Victoria,

where limitations on resources may dictate the immediate response.

Authorised persons will also be required to give proper consideration to the

overarching mental health and wellbeing principles in the exercise of any

power under Chapter 5. This provides clarification that the principles apply

across the Bill in a variety of circumstances and environments. The

requirement for an authorised person to "give proper consideration to the

mental health and wellbeing principles" is adaptive to urgent circumstances

of crisis response while supporting the vision of the Royal Commission and

supporting the rights of consumers and their family, carers and supporters.

An authorised person may give proper consideration to the mental health

principles without giving direct and express consideration to each of the

matters in undertaking a crisis response.

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All powers under Chapter 5 of the Bill are to be exercised in accordance with

the least restrictive and health led principles when possible, however this

does not override the powers of police and ambulance officers under the

Victoria Police Act 2013 and Ambulance Services Act 1986 respectively or

under any other law.

The Bill moves away from the previous language of "apprehend", which can

be associated with punitive powers, to better reflect the human rights-based

principles of the new Mental Health and Wellbeing Bill—to provide

examination, assessment, treatment and care if needed to people in crisis in

the least restrictive way.

The proposed transfer provisions allow all authorised persons (including

authorised health professionals and police) to transfer care and control of a

person between each other, allowing responses to be provided in the least

restrictive way possible for the individual while responding to the immediate

crisis. The powers also specifically provide for authorised health

professionals to transfer care and control to police or protective service

officers to ensure the safety of any person. The powers also allow for

authorised persons to assist each other without transferring care and control,

for example police assisting an authorised health professional to manage a

short-term safety risk. Alternatively, an authorised health professional may

assist police to ensure that a response is health-informed if it is not

reasonably practicable that the powers be exercised by a health professional.

The transfer provisions are intended to be read in light of the health led

principle and therefore promote police and protective services officers

transferring the care and control of a person to an authorised health

professional where it is reasonably practicable and safe to do so, and

authorised health professionals retaining care and control of a person unless it

is unsafe to do so. The provisions allowing for transfer of care and control

between authorised persons are not intended to promote a chain of transfers

of a person experiencing mental health crises, but to ensure that the powers

are flexible enough to respond to often changeable situations in crisis

response. Although transfers must occur as soon as practicable, it is intended

that these transfer powers will also allow for transfer of care and control

partway through a journey. This may be necessary in journeys from remote

areas.

The provisions of the Bill are part of a broader health led emergency response

service model being developed that includes paramedics, police, protective

service officers and the Emergency Services Telecommunications Authority.

Delivery of the health led emergency response service model is planned to be

rolled out from the end of 2024 as recommended by the Royal Commission.

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These enabling provisions in the Bill are designed to adapt to future reforms,

allowing a wider and more flexible deployment of responders, through the

prescribing of new classes of authorised persons as service design, workforce

solutions and training develops.

In line with Victoria Police operational policy, protective services officers

working at, or in the vicinity of designated areas are added to the group of

authorised persons with powers to transport individuals when required under

the Bill. This change is intended to allow protective service officers to

respond appropriately where a person within their designated area needs to be

taken into care and control (either due to a mental health crisis or being

absent without leave) until the person can be transferred to a police officer or

an authorised health professional .

Authorised persons will have the necessary powers to safely take a person

into care and control and provide transport in the least restrictive way

possible. These powers are intended to be flexible enough to adapt to the

varied professional capabilities of different classes of authorised persons, in

line with their relevant training and protocols.

Authorised persons will have powers of entry where they are satisfied that a

person who needs to be taken into care and control is likely to be found. It is

not expected that the authorised person has engaged directly with the person

prior to entry, rather their decision to enter a premises in a crisis response

may be informed by information that provides a reasonable belief that the

person has an apparent mental illness, and because of that apparent mental

illness there is a risk of serious and imminent harm to themselves or others.

An authorised person may also enter a premises where they believe on

reasonable grounds that a person may be found if they are absent without

leave, to transport them to a designated mental health service or a place under

the Bill.

All authorised persons will have the ability to search a person and seize items

where the person is being taken into care control or are already under care

and control if the authorised person reasonably suspects that the person is

carrying any thing that presents a danger to the health and safety of the

person or another person. These search provisions are intended to be

complied with so far as is reasonably practicable in the circumstances and

have been modernised to better protect the privacy and dignity of people,

including for young people and to provide greater gender safety. This

includes the person being searched being able to nominate the gender of the

person to undertake the search. A person's gender is determined by how they

identify.

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The threshold for the use of bodily restraint by authorised persons, is

unchanged from the Mental Health Act 2014, however the Bill provides that

bodily restraint may also be required to take a person into care and control.

This provides that bodily restraint may be used where all reasonable and less

restrictive options have been tried or considered and have been found to be

unsuitable; and the restraint is necessary to prevent serious and imminent

harm. Like all powers within this Chapter, bodily restraint is to be used in

the least restrictive way possible and in a way which consistent with the

professional capability and training of the difference classes of authorised

persons. It is also not intended to limit the powers of police, protective

service officers or registered paramedics under the Crimes Act 1958, the

Victoria Police Act 2013 and the Ambulance Services Act 1986

respectively or under any other law.

The use of bodily restraint under Chapter 5 is not subject to the same

regulatory provisions for restrictive intervention detailed in Chapter 3. This

is in acknowledgment of the complexities faced by the equipment frequently

used for safe transport (for example, seat belts or auto-locking doors) and the

co-operation that will be required between departments to ensure bodily

restraint under Chapter 5 is consistently and accurately reported.

Powers relating to the use of chemical restraint in transport, are included in

Chapter 3 to better reflect that this is not a power inherently held by

authorised persons.

Below is Table 1 which provides the various powers held by each class of

authorised person.

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Table 1—Power to take a person into care and control and associated

powers of authorised persons

Authorised persons When a person may be taken into

care and control

Powers associated

with care and

control

Mental health

crisis

(clause 232)

Transport under

the Bill

(clause 241)

Power to enter the

premises; search,

seize and secure

items and use bodily

restraint* (clauses

246, 247, 249

and 250)

Police officer ✓ ✓ ✓

Registered paramedic

employed by an

Ambulance service defined

in section 3(1) of the

Ambulance Services

Act 1986

✓ ✓ ✓

Protective service officer

(in, or in the vicinity of, a

designated place) ✓ ✓ ✓

Member of prescribed

class of person

(clause 232) ✓ ✓ ✓

Designated mental health

service registered

medical practitioner  ✓ ✓

Authorised mental health

practitioner registered

psychologist, registered

nurse, social worker, or

registered occupational

therapist employed or

engaged by designated

mental health service, or

prescribed class of person.

 ✓ ✓

Member of a prescribed

class of person  ✓ ✓ *Powers relating to chemical restraint for the purposes of transport are covered in Chapter 3 of

the Bill.

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Part 5.1—Principles and definitions

Clause 228 provides that a power under Chapter 5 of the Bill should, as far as

is reasonably practicable, be exercised by an authorised health

professional. If that is not reasonably practicable, it is intended

that the exercise of power be informed by another authorised

person who is an authorised health professional, or the advice of

a registered medical practitioner, an authorised mental health

practitioner, a registered nurse or registered paramedic.

Clause 229 provides that when exercising power under Chapter 5 of the Bill,

an authorised person must give proper consideration to the

mental health and wellbeing principles. It is possible for an

authorised person to give proper consideration to the mental

health principles without giving direct and express consideration

to each principle while responding to a crisis.

Clause 230 provides that the exercise of a power by an authorised person

under Chapter 5 of the Bill must be in the least restrictive way

possible, so far as reasonably practicable in the circumstances.

It is the intention of the least restrictive approach principle that

authorised persons exercising a power under Chapter 5 of the Bill

will respond to the needs of people with mental illness in the

least restrictive way practical to minimise any interference with

that person's human rights, including their liberty, privacy, and

dignity.

For example, for the purposes of transport, this means

consideration of whether a person can be safety transported by

ambulance or other relevant mode of transport. If required to

ensure the safety of any person, an authorised health professional

may have care and control of a person to transport them to a

specified body with police providing assistance to reduce safety

risks.

Further, it may be reasonably practicable and appropriate for the

needs of the person that examination take place in the community

(including the person's home) as the least restrictive way to

protect the individual's rights and avoid unnecessary transport.

Clause 231 defines authorised health professional, search and specified

body for the purposes of Chapter 5 of the Bill.

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Part 5.2—Power to take a person into care and control in a

mental health crisis

Clause 232 provides that specified authorised persons may take a person into

care and control if satisfied that the person appears to have

mental illness and because of that apparent mental illness, it is

necessary to take the person into care and control to prevent

serious and imminent harm to the person or another person.

Subclause (2) clarifies that a person remains in an authorised

person's care and control until the care and control ends in

accordance with clause 239.

Clause 233 clarifies that an authorised person is not required to exercise

clinical judgement as to whether a person has a mental illness in

the exercise of a power under clause 232 (1). While it is intended

that an authorised person use their judgement, wisdom and

professional experience, there is no expectation that clinical

judgement be exercised.

Clause 234 provides that an authorised person who takes a person into care

and control under clause 232(1) must arrange for the person to be

examined as soon as practicable by a registered medical

practitioner or an authorised mental health practitioner. This can

be—

• by arranging for the examination to take place at or near

the place where the person was taken into care and

control, or

• by transporting the person to a specified body where the

examination may take place, or

• by transferring care and control of the person in

accordance with section 235.

Clause 235 provides that an authorised person, at any time, may transfer a

person into the care and control of another authorised person, if

necessary to do so for the purposes of arranging an examination.

The transfer must be arranged as soon as practicable.

Subclause (3) provides that an authorised person may only

transfer a person into the care and control of an authorised health

professional if the authorised health professional agrees to

receive care and control of the person.

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Subclause (4) provides that an authorised health professional,

when determining whether to agree to the transfer, must consider

the impact that the transfer of the person's care and control may

have on the safety of any person.

Subclause (5) provides that an authorised health professional may

transfer a person into the care and control of another authorised

person who is a police officer or a protective services officer if it

is necessary to do so to ensure the safety of any person. Unlike

the agreement required from an authorised health professional,

there is no requirement that the police officer or protective

services officer agree to the transfer of care and control.

Subclause (6) provides that an authorised person who is a police

officer must not transfer a person into the care and control of an

authorised person who is a protective services officer.

Subclause (7) provides that transferring under this section has the

effect of transferring care and control to the receiving authorised

person.

Clause 236 sets out the obligations of an authorised person on receiving a

person transferred in accordance with clause 235, including that

they must—

• arrange for the examination of the person by a

registered medical practitioner or an authorised mental

health practitioner to take place at or near where the

person was received into care and control by the

authorised person, or

• by transporting the person, or arranging transport of the

person by another authorised person, to a specified body

where the examination may take place, or

• by transferring care and control of the person to another

authorised person for the purposes of arranging for the

person to be examined in accordance with section 234

as soon as practicable.

Clause 237 provides that on transporting a person pursuant to clause 234(b)

or 236(b), a registered medical practitioner, authorised mental

health practitioner or registered nurse at a specified body must

accept the person into their care and control as soon as

reasonably practicable and safe to do so, at which time the care

and control of the person is deemed to be transferred to the

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registered medical practitioner, authorised mental health

practitioner or the registered nurse (as the case may be).

Clause 238 provides that an authorised person may release a person from

care or control if satisfied that the person's care and control is no

longer necessary to prevent serious and imminent harm to the

person or another person. Upon releasing a person from care and

control, the authorised person must advise the person that they

are no longer in the authorised person's care and control.

While this provision creates a discretion (rather than a

requirement) to release a person from care and control in

circumstances where it is no longer necessary in order to prevent

serious and imminent harm to the person or another person, it is

intended that it be exercised in the context of the relevant

principles, including the principle of least restriction.

Clause 239 sets out the circumstances in which a person is no longer in an

authorised person's care and control under this Part.

These include where the person is released from care and control,

or when a community assessment order is made, or where it is

determined that the compulsory assessment criteria are not met.

An authorised person will also no longer have care and control of

a person if that person is transferred into the care and control of

another pursuant to clauses 235 or 237. Additionally, a person

will no longer be in the care and control of an authorised person

if the person has absconded from that person's care and control.

Part 5.3—Power to take a person into care and control for the

purposes of transport under the Act

Clause 240 provides that this Part applies to the transport of a person to or

from a designated mental health service or any other place as

provided under any provision of the Bill.

Clause 241 provides that an authorised person may take a person into care

and control for the purpose of transporting the person to or from

a designated mental health service or any other place as provided

by the Bill, and that person remains in the authorised person's

care and control until the care and control ends in accordance

with clause 245 apply.

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Subclause (3) sets out that an authorised person must as soon as

practicable transport (or arrange transport by another authorised

person) the person to or from the designated mental health

service or any other place provided under the Bill or,

alternatively, transfer care and control of the person in

accordance with clause 242.

Clause 242 provides that an authorised person may at any time transfer a

person into the care and control of another authorised person, if it

is necessary to do so for the purposes of transporting the person

in accordance with clause 241(3), with the transfer to be arranged

as soon as practicable.

Subclause (3) provides that an authorised person may only

transfer a person into the care and control of an authorised health

professional if the authorised health professional agrees to

receive care and control of the person being transferred.

Subclause (4) provides that the authorised health professional,

when determining whether to agree to the transfer under

subclause (3), must consider the impact that the transfer of the

person's care and control may have on the safety of any person.

Subclause (5) provides that an authorised health professional may

transfer a person into the care and control of another authorised

person who is a police officer or a protective services officer if it

is necessary to do so to ensure the safety of any person. Unlike

the agreement required from an authorised health professional,

there is no requirement that the police officer or protective

services officer agree to the transfer of care and control.

Subclause (6) provides that an authorised person who is a police

officer must not transfer a person into the care and control of an

authorised person who is a protective services officer.

Subclause (7) provides that transferring under this section has the

effect of transferring care and control to the receiving authorised

person.

Clause 243 provides that on receiving a person transferred in accordance

with clause 242, an authorised person must as soon as practicable

transport the person to or from the designated mental health

service or any other place as provided under this Bill in

accordance with clause 241(3).

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Clause 244 states that a registered medical practitioner, authorised mental

health practitioner or registered nurse must accept a person being

transported in accordance with clause 241(3)(a) or 243(a) into

their care and control as soon as reasonably practicable and safe

to do so, at which time the care and control of the person is

transferred.

Clause 245 sets out the circumstances in which a person is no longer in an

authorised person's care and control under this Part.

An authorised person will no longer have care and control of a

person if that person is transferred into the care and control of

another pursuant to clauses 242 or 244. Additionally, a person

will no longer be in the care and control of an authorised person

if the person has absconded from that authorised person's care

and control.

Part 5.4—Power of authorised persons to enter premises

Clause 246 provides that an authorised person, in taking a person into care

and control under Part 5.2 or 5.3, may enter a premises at which

the authorised person is satisfied on reasonable grounds that the

person may be found.

This provision is not intended to require that the authorised

person has engaged directly with the person prior to entry, nor

that they have yet been capable of assessing whether the criteria

for taking into care and control are met. Rather, their decision to

enter a premises in a crisis response may be informed by

information that provides a reasonable belief that the person may

be found within. That information may also indicate that the

criteria are likely to be met. Given that the purpose of entry

under this clause is for taking a person into care and control if the

criteria are met, it may be that the authorised person has received

information that gives rise to a reasonable belief that the person

within will meet the criteria; that is, that the person appears to

have mental illness, and because of that apparent mental illness it

is necessary to take the person into care and control to prevent

serious and imminent harm to themselves or others.

For the avoidance of doubt, other common law and statutory

powers held by police and Protective Services Officers

(for example, section 459A of the Crimes Act 1958) are not

displaced or abrogated by this provision, but should not be used

for the purposes of taking into care and control or transport under

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Chapter 5 of the Bill. Should police or protective services

officers consider that it is necessary to use other powers, for

example use of force to prevent the commission of an indictable

offence, or powers of entry to prevent family violence or a breach

of the peace, they will be exercising powers that are sourced

outside of this Bill and should act in accordance with those other

powers.

Subclause (3) specifies the steps to be taken by an authorised

person prior to entry into any premises.

Subclause (4) provides that reasonable force may be used to gain

entry to the premises if the authorised person is not permitted

entry. Reasonable force may include forcing open a door or

breaking a window, but does not include reasonable force against

a person. Clause 250 sets out the limited circumstances in which

bodily restraint may be used against a person for the purposes of

Chapter 5 of the Bill, but reasonable force is not intended to be

exerted on a person. On gaining entry to the premises, an

authorised person must comply with clause 252, to the extent that

is reasonable in the circumstances.

Part 5.5—Power of authorised persons to search, seize and secure

Clause 247 provides that an authorised person may search a person if they

reasonably suspect that the person is carrying any thing that

presents a danger to the health and safety of the person or another

person. The clause applies when a person is in the care and

control of an authorised person under Part 5.2 or 5.3 and includes

another authorised person who is assisting the authorised person

under clause 251.

Subclause (3) requires an authorised person to explain to the

person the purpose of the search prior to the search being

conducted, to the extent that is reasonable in the circumstances.

Subclause (4) clarifies that a person cannot be searched after the

person has been admitted as an inpatient unless the search is

required immediately before the person is transported under

Part 5.3.

Clause 248 provides for the conduct of a search in a manner which preserves

privacy and dignity.

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Subclause (1) provides that an authorised person who searches a

person, so far as is reasonably practicable in the circumstances,

must comply with this section. The authorised person must

inform the person of certain matters, ask for the person's

cooperation and conduct the least invasive kind of search

practicable. When a search is conducted of a person who is of or

under the age of 16 years, there must be a parent, carer or

supporter present, or if this is not possible, another adult must be

present apart from the authorised person conducting the search.

Subclause (6) provides that a search that involves running the

hands over a person's outer clothing must be conducted by an

authorised person of the gender nominated by the person to be

searched, an authorised person nominated by the person, a person

of the gender nominated by the person to be searched under the

direction of an authorised person, or a person nominated by the

person to be searched under the direction of an authorised person.

Subclause (6) must be complied with in so far as is reasonably

practicable and safe in the circumstances.

A person's gender is determined by how they identify.

Clause 249 provides that if a thing is found in the course of a search, that

thing may be seized if it presents a danger to the health and safety

of the person or another person. If a thing is seized, the

authorised person must make a written record specifying certain

information and securely store the thing seized, unless the thing

is referred to in subclause (4), in which case the thing seized must

be given to a police officer as soon as practicable after seizure.

Subclause (5) provides the authorised person must take

reasonable steps to return any thing stored following seizure to

the person from whom it was seized when the reason for the

seizure no longer applies.

Part 5.6—Use of bodily restraint on person taken into care and

control

Clause 250 states that an authorised person may use bodily restraint on a

person if all reasonable and less restrictive options have been

tried or considered and have been found unsuitable and the use of

bodily restraint is necessary to prevent serious and imminent

harm to the person or another person. The clause applies if a

person is being taken into the care and control of an authorised

person under Part 5.2 or is in the care and control of an

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authorised person under Part 5.2 or 5.3 and includes another

authorised person who is assisting the authorised person under

clause 251.

For the avoidance of doubt, other common law and statutory

powers held by police and Protective Services Officers

(for example, section 462A of the Crimes Act 1958) are not

displaced or abrogated by this provision, but should not be used

for the purposes of taking into care and control or transport under

Chapter 5 of the Bill. Should police or protective services

officers consider that it is necessary to use other powers, for

example use of force to prevent the commission of an indictable

offence, they will be exercising powers that are sourced outside

of this Bill and should act in accordance with those other powers.

Part 5.7—General provisions relating to powers of authorised

persons

Clause 251 provides that an authorised person who is exercising powers

under Part 5.2 or 5.3 may be assisted by another authorised

person.

Clause 252 states that an authorised person must provide specified

information to a person on taking them into the authorised

person's care and control under Part 5.2 or 5.3, so far as

reasonably practicable in the circumstances. If the person is

under 16 years, the authorised person must give the specified

information to the parent, carer or supporter of the person where

reasonably practicable and safe. When providing information to

the parent, carer or supporter of the person under 16 years, it is

intended that consideration will be given to the appropriateness

of sharing such information (including, for example,

consideration of family violence risks)

Clause 253 sets out the immunity for an authorised person. An authorised

person is not personally liable for anything done or omitted to be

done in good faith in the exercise of a power or the performance

of a function under Chapter 5 of the Bill, or in the reasonable

belief that the act or omission was in the exercise of a power or

the performance of a function under Chapter 5 of the Bill.

Subclause (2) provides that any liability resulting from an act or

omission that would attach to an authorised person but for

subclause (1), attaches instead to the State.

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Subclause (3) states that nothing in the clause limits any

immunity of an authorised person under this Bill or any other

Act, or a person's ability to make a complaint to a person or body

about the conduct of the authorised person under Chapter 5 of the

Bill.

Chapter 6—Administration

Chapter 6 deals with the administration of the Bill.

The Bill establishes new entities that will form the architecture underpinning

the reformed mental health system. These entities will operate alongside a

number of existing bodies to provide the robust governance and oversight

envisaged by the Royal Commission.

The new system architecture recommended by the Royal Commission will

require entities to work together to improve the system—to monitor and

review and feed into systemic system improvement.

To this end, the Bill requires that all new entities and office holders must give

proper consideration to the mental health and wellbeing principles; ensure

that decision making processes are transparent, systematic and appropriate;

and consider ways to promote good mental health and wellbeing.

Given the breadth of the new specialist entities and functions, it is expected

that each agency will support collaboration and efficiency, avoid duplication

of efforts and focus on avoiding unnecessary burden on providers.

Accordingly, clause 9 of the Bill requires that each entity and office holder

collaborate to reduce unnecessary administrative burden on service providers

by avoiding unnecessary duplication of inquiries or other actions; and

facilitating the coordination and expedition of those inquiries or actions.

Secretary and Chief Officer for Mental Health and Wellbeing

The Bill re-enacts the Secretary to the Department of Health's existing

functions and powers to support their role as overall system steward for

Victoria's mental health and wellbeing system with a stronger emphasis on

human rights.

The Royal Commission recommended Chief Officer for Mental Health and

Wellbeing be established in legislation (to report to the Health Secretary),

thereby elevating the status of mental health and wellbeing within the

Department and strengthening the leadership of the mental health and

wellbeing system.

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As recommended by the Royal Commission, the Bill enables the Chief

Officer to perform the same functions and powers as those conferred on the

Health Secretary, as well as exercise some discrete powers with respect to

oversight and guidance of particular parts of the service system.

Chief psychiatrist

The Bill continues the office of the chief psychiatrist to safeguard and

monitor clinical practices, with minor amendments to existing statutory

functions. The chief psychiatrist, who will report to the Chief Officer,

provides clinical leadership and advice to mental health and wellbeing

service providers; promotes the highest standards of clinical practice and

care; promotes the rights of people receiving mental health and wellbeing

services and also provides advice to the Minister and the Health Secretary.

As envisaged by the Royal Commission, the Bill expands the scope of the

chief psychiatrist's functions and powers to include mental health and

wellbeing service provision in custodial settings.

As befits the clinical focus of the chief psychiatrist's role, the jurisdiction of

the chief psychiatrist will not cover the full broad range of services providers

that fall within the definition of mental health and wellbeing service

provider. Rather the chief psychiatrist will exercise powers and functions in

relation to clinical mental health service providers—defined to include

designated mental health services, mental health and wellbeing service

providers that provide mental health and wellbeing services in custodial

settings, and prescribed services.

It is intended that services currently within the jurisdiction of the chief

psychiatrist will be prescribed initially, with work to be undertaken as the

service system develops to identify additional providers that should be

prescribed.

The existing powers of the chief psychiatrist to conduct investigations and

clinical reviews, set standards, and issue guidelines and practice directions

will be retained.

The continuous improvement functions of the chief psychiatrist have

transferred to the new Mental Health Improvement Unit in Safer Care

Victoria, as envisioned by the Royal Commission. It is intended the Health

Secretary's continuous improvement functions will also be delegated to the

Chief Executive Officer of Safer Care Victoria.

As recommended by the Royal Commission, the role and functions of the

chief psychiatrist will be considered as part of the 5-year review of the Act.

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Regional mental health and wellbeing boards

The Royal Commission's vision for a redesigned service system in Victoria

included a new regional governance approach so that integrated mental health

and wellbeing services can be planned and organised in a way that better

responds to community needs across 8 regions.

Transitioning from a centralised governance model to a regional approach is

a significant change in the way the system is managed. The Royal

Commission therefore recommended a phased approach to implementing

regional governance models over a 5-year period.

The first step is the establishment of 8 interim regional bodies, set up to

advise the Department of Health as it continues to commission mental health

and wellbeing services.

As recommended by the Royal Commission, 8 interim regional bodies have

been established. These bodies are playing an important role in providing

advice to the Mental Health and Wellbeing Division in the Department of

Health about services in each region, until the regional mental health and

wellbeing boards are established.

The interim regional bodies are playing a key role engaging with their local

communities, including people with lived experience, mental health and

wellbeing service providers, health services, and NGOs.

The interim regional bodies, which will include members with lived

experience as consumers or carers, will also help the Department of Health to

map the longer-term pathway to regional governance, including the transition

to regional mental health and wellbeing boards, established under the Bill.

The regional mental health and wellbeing boards will be established by the

end of 2023.

The Bill provides for the 8 interim regional boards to provide advice to the

Minister on the commissioning of mental health and wellbeing services in

their regions. The department will continue to commission services in each

region, based on advice of the boards and at the direction of the Minister.

A statutory advisory body model provides time for the framework and

arrangements for regional commissioning to be developed and tested.

A review of the legal form and governance arrangements of regional mental

health and wellbeing boards is proposed for 2024 to enable government

decisions about giving full effect to the Royal Commission recommendation

that, by no later than the end of 2026, regional mental health and wellbeing

boards commission mental health and wellbeing services and hold providers

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to account to improve outcomes and experiences for people using those

services.

Regional and statewide multiagency panels

The Royal Commission recommended establishment in legislation of new

coordinating structures—regional multiagency panels and a statewide

panel—to respond to the unmet needs of people who experience considerable

challenges in finding responsive and coordinated services.

The Bill requires that the Chief Officer appoint at least one regional

multiagency panel for each of the 8 regions to bring together a diverse range

of service providers to support collaboration and accountability in providing

services to consumers who require ongoing intensive treatment, care and

support.

The Bill also requires establishment of a statewide panel to be chaired by the

Chief Officer for Mental Health and Wellbeing and comprise the chairs of

each regional multiagency panel. The statewide panel will identify and take

steps to resolve issues relating to the delivery of mental health and wellbeing

services that require a system-level response, for example, issues relating to

planning, funding, collaboration and integration across portfolios, such as

housing, justice, disability

Establishing the regional multiagency panels and a statewide panel in

legislation will ensure the reforms endure in the redesigned service system.

Regional multiagency panels will not usually oversee the care of individual

consumers; however, the Royal Commission did envisage a role for regional

multiagency panels in supporting individual consumers with care

coordination in difficult or complex circumstances.

Part 6.1—The Health Secretary

Division 1—Role and functions of the Health Secretary

Clause 254 sets out the functions of the Health Secretary under the Bill.

Clause 255 requires the Health Secretary to give proper consideration to the

mental health and wellbeing principles, ensure that decision

making processes are transparent, systematic and appropriate,

and consider ways to promote good mental health and wellbeing.

Clause 256 provides that the Health Secretary may delegate their powers or

functions under the Bill or the regulations. The delegation is to

be by way of instrument.

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Clause 257 provides that the Health Secretary may declare a specified

hospital or service to be a designated mental health service.

The declaration is to be by way of notice published in the

Government Gazette.

Division 2—Information collection

Clause 258 allows the Health Secretary to enter into an information sharing

agreement with a public sector body on behalf of the chief

psychiatrist, the Chief Officer or a regional mental health and

wellbeing board for specified purposes.

Subclause (3) sets out what an information sharing agreement

may provide for.

Subclause (4) requires that an information sharing agreement

must comply with the information sharing principles.

Subclause (5) provides that the parties to an information sharing

agreement must provide and share information in accordance

with the agreement.

Clause 259 provides that a specified body may disclose to the Health

Secretary, and the Health Secretary may collect from a specified

body, the health information, personal information or the

identifier or unique identifier of an individual for a specified

purpose.

Part 6.2—The Chief Officer for Mental Health and Wellbeing

Clause 260 provides for the employment of an appropriately qualified person

as a Chief Officer for Mental Health and Wellbeing, under Part 3

of the Public Administration Act 2004. The Chief Officer is

subject to the direction and control of the Health Secretary.

Clause 261 sets out the functions of the Chief Officer under the Bill.

Subclause (2) requires the Chief Officer to submit an annual

report to the Minister as soon as practicable after the end of each

financial year but no later than the following 31 October.

The annual report is to contain specified information.

Clause 262 requires the Chief Officer to give proper consideration to the

mental health and wellbeing principles, ensure that decision

making processes are transparent, systematic and appropriate,

and consider ways to promote good mental health and wellbeing.

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Clause 263 sets out the powers of the Chief Officer.

Clause 264 provides that the Chief Officer may prepare guidelines in relation

to specified circumstances, and must ensure the guidelines are

given to the regional mental health and wellbeing boards are

published on the Department's website.

Part 6.3—The chief psychiatrist

Division 1—The chief psychiatrist

Clause 265 provides for the employment of an appropriately qualified

psychiatrist as the chief psychiatrist under Part 3 of the Public

Administration Act 2004. The chief psychiatrist is subject to

the direction and control of the Health Secretary and has the

duties, functions and powers conferred under the Bill or any other

Act or regulation.

Clause 266 sets out the role of the chief psychiatrist.

Clause 267 sets out the functions of the chief psychiatrist.

Clause 268 requires the chief psychiatrist to give proper consideration to the

mental health and wellbeing principles, ensure that decision

making processes are transparent, systematic and appropriate,

and consider ways to promote good mental health and wellbeing

Clause 269 provides for the employment of persons with appropriate

experience to assist the chief psychiatrist perform their functions

and exercise their powers under the Bill. The employees are to

be employed under Part 3 of the Public Administration

Act 2004.

Clause 270 allows the Health Secretary to enter into agreements or

arrangements with a person or body for the purpose of obtaining

appropriate expertise to assist the chief psychiatrist perform their

functions and exercise their powers under the Bill.

Clause 271 allows the chief psychiatrist to delegate any of their functions or

powers under the Bill to a person who is a psychiatrist and who is

either a staff member referred to in clause 269 or a contractor

who has entered into an agreement or arrangement under

clause 270.

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Clause 272 requires staff members of a clinical mental health service

provider to provide any reasonable assistance that the chief

psychiatrist, or an authorised officer acting under the direction of

the chief psychiatrist, requires to perform any duties or functions

or exercise any powers.

Clause 273 provides that the chief psychiatrist may prepare and issue

standards, guidelines and practice directions, to address any

aspect of mental health and wellbeing service delivery.

Clause 274 provides that the chief psychiatrist must submit an annual report

containing specified information to the Health Secretary, as soon

as practicable after the end of each financial year but no later

than the following 31 October. The Health Secretary must

publish the annual report on the Department's website as soon as

practicable after receiving it.

Division 2—Authorised officers

Clause 275 allows the chief psychiatrist to appoint, by instrument, a person

employed under Part 3 of the Public Administration Act 2004,

or a person engaged under clause 270, as an authorised officer if

the chief psychiatrist is satisfied that the person has the

appropriate knowledge and experience.

Subclause (3) provides that the chief psychiatrist may issue a

direction to an authorised officer in relation to the performance of

the officer's functions or duties or the exercise of the officer's

powers.

Clause 276 requires the chief psychiatrist to issue an identity card to each

authorised officer, and stipulates the physical requirements for

each card.

Clause 277 requires an authorised officer to produce their identity card for

inspection before exercising a power under the Bill or the

regulations and when asked to do so by the occupier of any

premises during the exercise of a power, unless it is impracticable

to do so.

Division 3—Investigations by the chief psychiatrist

Clause 278 enables the chief psychiatrist to conduct an investigation into the

provision of mental health and wellbeing services by a clinical

mental health service provider, either on their own initiative or at

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the request of the Health Secretary or the Chief Officer, if they

are of the opinion that the health, safety or wellbeing of a person

is or was endangered as a result of those services.

Clause 279 provides that for the purposes of conducting an investigation

under Division 3 of Part 6.3 the chief psychiatrist may assess and

determine when conducting an investigation into the provision of

mental health and wellbeing services by a clinical mental health

service provider.

Subclause (2) provides that an investigation may relate to any

aspect of the mental health and wellbeing services provided by a

clinical mental health and wellbeing service provider, or

alternatively, to the mental health and wellbeing services

provided to a specified person.

Subclause (3) requires the chief psychiatrist to give written notice

of the investigation to the clinical mental health service provider

within a reasonable time before commencing the investigation.

However, the chief psychiatrist may dispense with doing so if

they are satisfied that it is necessary in the circumstances.

Subclause (5) provides that, subject to clause 279, the process for

conducting an investigation is at the discretion of the chief

psychiatrist.

Clause 280 provides that the chief psychiatrist must prepare an outcome

report as soon as practicable after completing the investigation.

Subclause (2) sets out what the outcome report must contain.

Subclause (3) requires the chief psychiatrist to provide a copy of

the report to the clinical mental health and wellbeing service

provider the subject of the report as soon as practicable after it

has been prepared.

Clause 281 provides that if an outcome report includes any recommendations

or directions for a mental health and wellbeing service provider,

the provider must prepare a written response, within 30 business

days of receiving the report, specifying the actions the provider

has taken, is taking or will take to implement the

recommendations or directions.

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Clause 282 requires the chief psychiatrist to provide the Health Secretary and

the Chief Officer a copy of an outcome report and any response

prepared by a mental health and wellbeing service provider under

clause 281.

Clause 283 the Health Secretary may publish a copy of an outcome report

and any response prepared by a mental health and wellbeing

service provider, if the Health Secretary is of the opinion that it is

in the public interest, unless the outcome report and any response

contains information that identifies or would be likely to lead to

the identification of a natural person, unless the person has given

written consent.

Clause 284 provides that the chief psychiatrist must give a copy of an

outcome report and any response to the Justice Secretary if the

report and any response relates to the provision of mental health

and wellbeing services by a mental health and wellbeing service

provider in a custodial setting.

Subclause (2) provides that the chief psychiatrist must give a

copy of an outcome report and any response to the Principal

Commissioner (within the meaning of the Commission for

Children and Young People Act 2012) if the report and any

response relates to the provision of mental health and wellbeing

services provided in a remand centre, a youth residential centre or

a youth justice centre.

Division 4—Clinical reviews

Clause 285 sets out the purpose of a clinical review.

Clause 286 allows the chief psychiatrist to conduct a clinical review of any

aspect of a mental health and wellbeing service provided by one

or more clinical mental health service providers, or a failure by

one or more clinical mental health service providers to deliver a

mental health and wellbeing service.

Subclause (2) provides that a clinical review may be conducted at

the discretion of the chief psychiatrist or on the request of the

Health Secretary or the Chief Officer.

Subclause (3) provides that the process for conducting a review is

at the discretion of the chief psychiatrist.

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Clause 287 requires the chief psychiatrist give written notice of the clinical

review including specified information to the relevant clinical

mental health service provider at least 20 business days before

the clinical review is to commence.

Clause 288 provides that the chief psychiatrist must prepare a clinical review

report as soon as practicable after completing a clinical review.

The report must be in writing and may include recommendations

that the chief psychiatrist considers appropriate to improve the

quality and safety of mental health and wellbeing services. A

copy of the report must be given to the clinical mental health

service provider the subject of the report as soon as practicable

after the report is prepared.

Clause 289 provides that the chief psychiatrist may prepare an interim

clinical review report before a clinical review is completed if

considered appropriate in the circumstances. The chief

psychiatrist must give the Health Secretary and the Chief Officer

a copy of any interim clinical review report.

Clause 290 provides that if a clinical review report includes any

recommendations for a clinical mental health and wellbeing

service provider, the provider must prepare a written response,

within 30 business days of receiving the report, specifying the

actions the provider has taken, is taking or will take to implement

the recommendations.

Clause 291 allows the chief psychiatrist to continue to monitor a clinical

mental health service provider after receiving the required

response, including making requests for further information or

conducting a further review.

Clause 292 the chief psychiatrist must give a copy of a clinical review report

and any response by a clinical mental health service provider

pursuant to clause 290 to the Health Secretary and the Chief

Officer.

Clause 293 the chief psychiatrist must give a copy of a clinical review report

and any response to the Justice Secretary, if the report and any

response relates to the provision of mental health and wellbeing

services by a clinical mental health service provider in a custodial

setting.

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Subclause (2) provides that the chief psychiatrist must give a

copy of a clinical review report and any response to the Principal

Commissioner(within the meaning of the Commission for

Children and Young People Act 2012) if the report and any

response relates to the provision of mental health and wellbeing

services provided in a remand centre, a youth residential centre or

a youth justice centre.

Clause 294 allows the Health Secretary to publish a clinical review report, if

the Health Secretary is of the opinion that it is in the public

interest. The published clinical review report must not contain

information that could identify a mental health and wellbeing

service provider or any person.

Division 5—Directions

Clause 295 allows the chief psychiatrist to provide written directions to a

clinical mental health service provider for specified purposes.

Directions may be given to ensure the provision of high quality

and safe services, to improve the quality and safety of mental

health services, to address any aspect of the provision of the

mental health and wellbeing services provided by the provider,

and to ensure that the provision of mental health and wellbeing

services complies with the Bill, regulations and Codes of

Practice, as well as the standards, guidelines and practice

directions issued by the chief psychiatrist.

If the chief psychiatrist gives a written direction, they must take

reasonable steps to notify specified persons that the direction has

been made.

Division 6—Powers of search and entry

Clause 296 defines premises of a clinical mental health service provider for

the purposes of Division 6 of Part 6.3 of the Bill to clarify that

those premises include any custodial setting where mental health

and wellbeing services are provided.

Clause 297 allows the chief psychiatrist, or an authorised officer at the

direction of the chief psychiatrist, to enter the premises of a

clinical mental health service provider for the purpose of

conducting an investigation, clinical review or performing any

other function of the chief psychiatrist under the Bill or the

regulations. The power of entry includes entry into a custodial

setting in the case of an investigation or clinical review that

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relates to the provision of mental health and wellbeing services at

a custodial setting.

Subclause (2) provides that a specified person must consent to

the entry before the chief psychiatrist or an authorised officer

enters a custodial setting.

Subclause (3) provides that a specified person may give the chief

psychiatrist or an authorised officer any direction that is

necessary where there are significant concerns for the

management, good order or security of a custodial setting that is

a prison, remand centre, youth residential centre, youth justice

centre or other custodial setting.

Subclause (4) sets out the actions that may be taken by the chief

psychiatrist or authorised officer upon entering the premises,

provided that these actions are consistent with any directions

referred to under subclause (3).

Clause 298 allows the chief psychiatrist, or an authorised officer at the

direction of the chief psychiatrist, to give written directions to a

member of staff of a clinical mental health service provider.

A direction may be given for the purpose of conducting an

investigation, clinical review, or performing any other function of

the chief psychiatrist under the Bill or the regulations, and may

direct the member of staff to produce a document or to answer

questions.

Division 7—Confidentiality obligations

Clause 299 provides for the definition of relevant person for the purposes of

Division 7 of Part 6.3 of the Bill.

Clause 300 provides that, except for performing functions for, related to,

conducting a clinical review under Part 6.3, a relevant person

must not make a record of, access, use or disclose any

information gained by or conveyed to the relevant person as a

result of conducting the clinical review if it could identify a

mental health and wellbeing service provider or any person.

Contravention of subclause (1) is an offence with a maximum

penalty of 10 penalty units.

Subclause (2) provides that a relevant person must not be

required to produce before a court, tribunal, agency or any other

person information the person has in their possession or control

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as a result of performing functions for, or related to, conducting a

clinical review.

Subclause (3) provides that a relevant person must not be

required to produce or communicate to a court, tribunal, agency

or any other person a matter or thing that has come to the

person's notice in performing functions for, or related to,

conducting a clinical review.

Clause 301 subclause (1) provides that the clause applies to documents

created for the sole purpose of conducting a clinical review or a

document provided during the course of a clinical review unless

the document has been published by the Health Secretary.

Subclause (2) provides that a person must not be required to

produce before a court, tribunal, agency or any other person a

document to which this clause applies which that person has in

their possession or control.

Subclause (3) provides that evidence of any information or

reports obtained by or in the possession of the chief psychiatrist

in the course of conducting a clinical review or evidence of or

about a document to which this clause applies is not admissible in

any action or proceeding before a court, tribunal, an agency or

any other person.

Clause 302 provides that, to avoid doubt, Division 7 of Part 6.3 of the Bill

does not prevent the chief psychiatrist from using or disclosing

any information in the possession or control of the chief

psychiatrist as a result of conducting a clinical review if they are

satisfied that the use or disclosure is necessary to prevent serious

harm to a person's health and safety.

Subclause (2) provides that nothing in Division 7 of Part 6.3 of

the Bill prevents a relevant person from including information in

any document that does not contain any particulars which would

be likely to lead to the identification of a person or mental health

and wellbeing service provider from which the information was

obtained.

Clause 303 provides that the Freedom of Information Act 1982 does not

apply to documents or information specified in clauses 300

or 301.

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Clause 304 provides that Part 5 of the Bill and Health Privacy Principle 6 of

the Health Records Act 2001 do not apply to documents or

information specified in clauses 300 or 301.

Part 6.4—Regional mental health and wellbeing boards

Division 1—Establishment of regional mental health and

wellbeing boards

Clause 305 empowers the Governor in Council to establish regional mental

health and wellbeing boards, by Order published in the

Government Gazette. An Oder under this clause must be made

by 31 December 2023. This power will be used to establish 8

regional mental health and wellbeing boards, in line with

recommendations of the Royal Commission.

Clause 306 allows the Minister to issue terms of reference for a regional

mental health and wellbeing board which must be published on

the Department's website and specify the scope and priority of

the functions to be performed.

Subclause (3) provides that the terms of reference may specify

any procedures to be observed and the extent to which a board

may regulate its own procedure.

Subclause (4) provides that a regional mental health and

wellbeing board must perform its functions and exercise its

powers within the scope of its current terms of reference, if any,

except for the purpose of providing advice to the Minister on the

Minister's request.

Clause 307 sets out the functions of a regional mental health and wellbeing

board.

Clause 308 requires the regional mental health and wellbeing board to give

proper consideration to the mental health and wellbeing

principles, ensure that decision making processes are transparent,

systematic and appropriate, and consider ways to promote good

mental health and wellbeing.

Clause 309 states that a regional mental health and wellbeing board must

provide advice to the Minister if they receive such a request or if

it is in their terms of reference to do so. A regional mental health

and wellbeing board may also provide advice to the Minister on

its own initiative.

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Subclause (4) provides that the Minister must have regard to any

advice received from a regional mental health and wellbeing

board for the purposes of making decision that relate to matters

addressed in the advice, but the Minister is not bound by or

required to act in accordance with the advice provided.

Clause 310 sets out the powers of a regional mental health and wellbeing

board.

Clause 311 provides that a regional mental health and wellbeing board may

request the Health Secretary provide access to or make available

facilities and resources to enable it to perform its functions.

Division 2—Members of regional mental health and wellbeing

board

Clause 312 provides for the appointment of members to a regional mental

health and wellbeing board.

Subclause (1) provides that the Governor in Council may by

instrument appoint at least 6, but no more than 9, persons to be

members of a regional mental health and wellbeing board, on the

recommendation of the Minister.

Subclause (2) requires the Minister must ensure that the

membership consists of—

• at least one person who identifies as experiencing or as

having experienced mental illness or psychological

stress and has an understanding of the diverse

experiences and needs of people living with mental

illness or psychological distress, which may inform their

decisions as a member of a regional mental health and

wellbeing board;

• at least one person who identifies as caring for or

supporting or as having cared for or supported a person

with mental illness or psychological distress, and has an

understanding of the diverse experiences and needs of

families, carers and supporters of people living with

mental illness or psychological distress, which may

inform their decisions as a member of a regional mental

health and wellbeing board.

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Subclause (3) requires the Minister must have regard to the need

for members of a regional mental health and wellbeing board to

have specified knowledge, experience and background.

Subclause (4) clarifies that the Minister must not recommend the

same person for appointment for the purposes of subclause (2)

there must be different persons appointed.

Clause 313 outline the terms and conditions of appointment of a member of a

regional mental health and wellbeing board, including that a

member is to be appointed for no longer than 3 years, is eligible

for reappointment, must not hold office for more than 9

consecutive years unless the Minister is satisfied that exceptional

circumstance exist which justify the member holding office for a

longer period, and is entitled to be paid remuneration and

allowances fixed by the Governor in Council form time to time.

Subclause (2) provides that the Public Administration Act 2004

applies to a member, other than Part 3 of that Act.

Clause 314 provides that a member ceases to hold office if the member

resigns by notice given to the Governor in Council, becomes

insolvent, is found guilty of an indictable offence, nominates for

election for the Parliament of Victoria or the Commonwealth or

of another State or a Territory, or a Council, or is removed from

office under clause 315.

Clause 315 allows the Governor in Council to remove a member of a

regional mental health and wellbeing board, on the

recommendation of the Minister.

Subclause (2) provides that the Minister may recommend the

removal from office if the member becomes unable to perform

the duties of the office, fails to attend meetings of the regional

mental health and wellbeing board without the approval of the

board for a period of not less than 6 months, or engages in

improper conduct.

Division 3—Community advisory committees

Clause 316 sets out that a regional mental health and wellbeing board may

establish at least one community advisory committee for the

purposes of engaging with the community in its region.

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Subclause (2) provides that for the purposes of appointing

members to a community advisory committee, a regional mental

health and wellbeing board must have regard to any relevant

guidelines issued by the Chief Officer and the importance of

members collectively having experience of and understanding the

mental health principle and that people using mental health and

wellbeing services in their region come from diverse

backgrounds and have different needs and requirements.

Clause 317 provides that a community advisory committee may regulate its

own procedure, subject to any guidelines issued by the Chief

Officer and any directions of the mental health and wellbeing

board that established the committee.

Part 6.5—Panels

Division 1—Regional multiagency panels

Clause 318 provides for the appointment of regional multiagency panels by

the Chief Officer. The appointments are for the purposes of

bringing together service providers and to support collaboration

and accountability for those living with mental illness or

psychological distress and who require ongoing intensive

treatment, care and support from multiple services.

Subclause (2) requires the Chief Officer to appoint a regional

multiagency panel for each region in respect of which a regional

mental health and wellbeing board has been established under

clause 305.

Subclause (3) requires the first appointment be made for each

region within 6 months after the regional mental health and

wellbeing board for that region has been established.

Clause 319 sets out that membership of the regional multiagency panel

consists of members appointed by the Chief Officer, one of

which will be appointed by the Chief Officer as chairperson.

The Chief Officer will make appointments to the regional

multiagency panel with the advice of the regional mental health

and wellbeing board of the same region.

Clause 320 sets out the functions of a regional multiagency panel.

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Clause 321 requires the regional multiagency panel to give proper

consideration to the mental health and wellbeing principles,

ensure that decision making processes are transparent, systematic

and appropriate, and consider ways to promote good mental

health and wellbeing.

Clause 322 provides that the Chief Officer must provide access to or make

available facilities and resources reasonably necessary to enable

the regional multiagency panel to perform its functions.

Clause 323 provides that a regional multiagency panel may regulate its own

procedure, subject to any guidelines issued by the Chief Officer.

Division 2—Statewide panel

Clause 324 provides for the appointment of a statewide panel by the Chief

Officer. The statewide panel consists of the Chief Officer as

chairperson, the chairperson of each regional multiagency panel

and any other person determined by the Chief Officer.

Clause 325 sets out the functions of the statewide panel.

Clause 326 requires the statewide panel to give proper consideration to the

mental health and wellbeing principles, ensure that decision

making processes are transparent, systematic and appropriate,

and consider ways to promote good mental health and wellbeing

Clause 327 provides that a statewide panel may regulate its own procedure

and is subject to any guidelines issued by the Chief Officer.

Part 6.6—Authorised psychiatrists

Clause 328 requires the governing body of a designated mental health service

to appoint at least one psychiatrist as authorised psychiatrist for

the designated mental health service, and allows the appointment

of as many authorised psychiatrists as the designated mental

health service requires. The authorised psychiatrist has the

powers and functions conferred under the Bill or any other Act.

Subclause (4) provides that Youth Mental Health and Wellbeing

Victoria must approve any intended appointment of a psychiatrist

as authorised psychiatrist of a declared operator before the

governing body of the declared operator makes the appointment.

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Subclause (5) provides that the governing body is required to

notify the chief psychiatrist and the Mental Health Tribunal in

writing of the appointment of any authorised psychiatrist within

5 business days after the appointment.

Clause 329 establishes powers of delegation for an authorised psychiatrist.

Subclause (1) allows an authorised psychiatrist to delegate any

function or power of the authorised psychiatrist to a person

specified in that subclause.

Subclause (2) allows an authorised psychiatrist to delegate to a

registered medical practitioner certain specified powers, duties

and functions of the authorised psychiatrist relating to assessment

orders.

Subclause (3) provides that a delegation under subclause (2) must

not be make for a period longer than 12 months, but may be

renewed.

Subclause (4) requires that the exercise of a power or

performance of a function or duty delegated under subclause (2)

be reviewed by the delegating authorised psychiatrist on a regular

basis.

Chapter 7—Mental Health Tribunal

The Bill maintains the Mental Health Tribunal to provide independent

oversight of compulsory treatment, electroconvulsive treatment, neurosurgery

and leave for security patients, among other things. The Bill preserves the

provisions for the Tribunal under the Mental Health Act 2014, with minor

changes to assist the Tribunal to avoid unnecessary delays or cancellation of

hearings.

The Royal Commission found that the rationale for establishing the Tribunal

to make treatment orders remains sound and recommended against large-

scale reform of the Tribunal's role and operations at the same time as system

reform as this could detract from efforts to prevent the use of compulsory

treatment.

Minor changes to provisions related to the Tribunal include a revised

duration for community treatment orders and a requirement to make

decisions in a manner that is consistent with the guiding principles for

compulsory treatment.

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Part 7.1—Establishment of the Mental Health Tribunal

Clause 330 establishes the Mental Health Tribunal.

Clause 331 provides for the official seal of the Mental Health Tribunal.

Clause 332 sets out the functions of the Mental Health Tribunal, which

include hearing and determining specified matters and

applications under the Bill.

Clause 333 requires the Mental Health Tribunal must give proper

consideration to the mental health and wellbeing principles,

ensure that decision-making processes are transparent and

consider ways to promote good mental health and wellbeing.

Clause 334 provides that the Mental Health Tribunal has all the powers

necessary or convenient to enable it to perform its functions.

Clause 335 establishes statutory protection and immunity for members of the

Mental Health Tribunal and legal practitioners appearing before

it, equivalent to the protection and immunity applicable to Judges

and legal practitioners in the Supreme Court of Victoria.

Subclause (3) provides that a person appearing before the Mental

Health Tribunal as a witness is subject to the same protections as

a witness in a proceeding in the Supreme Court, and is subject to

the same liabilities as a witness in a proceeding in the Supreme

Court in addition to the penalties provided for in the Bill.

Part 7.2—Membership of the Mental Health Tribunal

Clause 336 stipulates that the Mental Health Tribunal will consist of a

President, a Deputy President, senior Tribunal members and

ordinary Tribunal members.

Clause 337 provides for the appointment of a President of the Mental Health

Tribunal by the Governor in Council on the recommendation of

the Minister. The person appointed must be eligible for

appointment as a legal member. The term of appointment can be

no more than 5 years, but the President is eligible for

reappointment.

Subclause (4) provides for entitlements in relation to

superannuation to continue throughout the period of service as

President for a person who was an officer under the State

Superannuation Act 1988 immediately before appointment.

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Subclause (5) allows the President to engage in professional

practice or employment outside the office of President if the

President has the consent of the Minister and complies with any

conditions imposed by the Minister.

Clause 338 provides for the appointment of a Deputy President of the Mental

Health Tribunal by the Governor in Council on the

recommendation of the Minister. The person appointed must be

eligible for appointment as a legal member. The term of the

appointment can be no more than 5 years, but the Deputy

President is eligible for reappointment.

Subclause (4) provides for entitlements in relation to

superannuation to continue throughout the period of service as

Deputy President for a person who was an officer under the State

Superannuation Act 1988 immediately before appointment.

Subclause (5) allows the Deputy President to engage in

professional practice or employment outside the office of the

Deputy President, if the Deputy President has the consent of the

Minister and complies with any conditions imposed by the

Minister.

Clause 339 provides for the appointment of senior Tribunal members and

ordinary Tribunal members of the Mental Health Tribunal by the

Governor in Council on the recommendation of the Minister.

Subclause (1) provides that the senior Tribunal members and

ordinary Tribunal members of the Mental Health Tribunal are the

legal members, psychiatrist members, registered medical

practitioner members and community members.

The clause provides that a senior Tribunal member can be full

time or part time while an ordinary Tribunal member can be full

time, part time or sessional. A member is appointed for a period

of not more than 5 years and is eligible for reappointment.

Subclause (5) allows for the appointment of as many senior

Tribunal members and ordinary Tribunal members as required

for the proper functioning of the Tribunal.

Subclause (7) allows a senior Tribunal member or an ordinary

Tribunal member to engage in professional practice or paid

employment outside their office of Tribunal members if they

have the consent of the President and comply with any conditions

imposed by the President.

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Clause 340 sets out when a person is eligible for appointment as a legal

member of the Mental Health Tribunal.

Clause 341 sets out when a person is eligible for appointment as a

psychiatrist member of the Mental Health Tribunal.

Clause 342 sets out when a person is eligible for appointment as a registered

medical practitioner member of the Mental Health Tribunal.

Clause 343 sets out when a person is eligible for appointment as a

community member of the Mental Health Tribunal.

Clause 344 provides that the Deputy President may act as President and that

the President may appoint an acting Deputy President.

Clause 345 provides for members of the Mental Health Tribunal to receiving

remuneration and allowances as prescribed. The remuneration

and allowances prescribed may differ for different classes of

Tribunal member.

Clause 346 stipulates that the Public Administration Act 2004 does not

apply to members of the Mental Health Tribunal.

Clause 347 provides that a member of the Mental Health Tribunal may resign

by signed written notice delivered to the Governor in Council.

Clause 348 allows the Minister to suspend a member of the Mental Health

Tribunal from office, on the recommendation of the President, if

satisfied that there may be grounds under clause 350(2) for

removing the person from office.

Subclause (2) allows the Governor in Council to suspend the

President from office, on the recommendations of the Minister, if

satisfied that there may be grounds for removing the President

from office under clause 350(2).

Subclause (3) provides that if the President is suspended from

office, the Minister must cause a statement of grounds of the

suspension to be tabled in each House of the Parliament within

7 sitting days of the suspension.

Subclause (4) provides that any member suspended from office

continues to be entitled to the prescribed remuneration and

allowances.

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Clause 349 provides that the Minister may appoint an independent person to

investigate the conduct of any member of the Mental Health

Tribunal who has been suspended from office, if the Minister

decides that an investigation is required. Any investigation must

be conducted as soon as practicable after the suspension.

The investigator must report to the Minister with any appropriate

recommendations and provide a copy of the report to the

President and to the person who is the subject of the report.

The report may include a recommendation that the person

investigated be removed from office.

Clause 350 provides that the office of a member becomes vacant when the

term of their appointment expires and they are not reappointed, if

they are removed from office or resign.

Subclause (2) allows the Governor in Council to remove a

member of the Mental Health Tribunal from office on certain

specified grounds, including insolvency, ineligibility, conviction

of an offence which makes the person unsuitable in the opinion

of the Minister, failure to disclose a conflict of interest, engaging

in paid employment without the consent of the Minister (for the

President or Deputy President) or the President (for other

Tribunal members) or not in accordance with their consent, an

inability to perform duties under the Bill (which may be due to

illness or any other circumstances preventing the person from

being able to perform their duties), or a finding of neglect of

duties or misconduct after an investigation under clause 349.

Part 7.3—Administration

Clause 351 provides for the employment of a chief executive officer, a

principal registrar and or other registrars and staff as necessary to

assist the administration of the Mental Health Tribunal. These

persons are to be employed under the Public Administration

Act 2004.

Clause 352 sets out the functions of the principal registrar and stipulates that

the principal registrar is subject to the direction of the President.

Clause 353 sets out the functions of the registrars and stipulates that each

registrar is subject to the direction of the principal registrar.

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Clause 354 allows the President and Deputy President to delegate their

functions under the Bill, except the power of delegation, to any

legal member of the Mental Health Tribunal. The clause allows

the President and Deputy President to delegate their functions

under the Bill to the principal register, except the power of

delegation or the powers or functions relating to hearing and

determining matters or applications.

Clause 355 makes it an offence for a Tribunal member, a chief executive

officer, principal registrar, registrar or any other member of staff

of the Mental Health Tribunal to make a record of, disclose or

communicate information that was obtained in the course of

performing their duties or exercising their powers under the Bill,

which relates to the affairs of a natural person and which may

identify that person.

The clause provides that an offence is not committed if the

recording, disclosure or communicating of the information is

necessary to do so in specified circumstances or if the person to

whom the information relates gives written consent. The clause

provides a penalty of 60 penalty units.

Clause 356 requires the Mental Health Tribunal to maintain a register of

proceedings.

Subclause (3) allows a party to a proceeding of the Mental Health

Tribunal to inspect the part of the register that relates to that

proceeding and obtain an extract of that part of the register, free

of charge.

Subclause (4) allows any other party to inspect or obtain an

extract of the register, for a fee, provided the President has

determined that the person has a proper purpose for inspecting or

obtaining the extract and that the extract does not contain

information that identifies the person who is the subject of the

extract.

Subclause (5) allows extracts to be provided that identify the

person subject of the extract if the person has consented or if the

inspection is for certain specified purposes.

Clause 357 requires the Mental Health Tribunal to submit an annual report to

the Minister, as soon practicable after the end of each financial

year but no later than 31 October of the following year.

The report must contain a review of the operation of the Mental

Health Tribunal during the 12 months ending on the preceding

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30 June, details of the number of hearings conducted being

constituted by a single Tribunal member and the circumstances

which necessitated such constitution and any other prescribed

matters.

Subclause (3) provides that the Minister must cause the annual

report to be tabled in each House of the Parliament within

14 sitting days after the report has been received by the Minister.

Part 7.4—Divisions of the Mental Health Tribunal

Clause 358 provides that there will be a general division and a special

division of the Mental Health Tribunal. The special division is to

hear and determine applications for the performance of

electroconvulsive treatment, neurosurgery for mental illness or

for the provision of intensive monitored supervision. The general

division is to hear and determine all other matters within the

jurisdiction of the Tribunal.

Clause 359 provides that for each proceeding, the Mental Health Tribunal

will be constituted by 3 Tribunal members selected by the

President. For a proceeding before the general division, the

3 members must consist of a legal member, a psychiatrist

member or a registered medical practitioner member, and a

community member. For a proceeding before the special

division, the 3 members must consist of a legal member, a

psychiatrist member and a community member.

For the purpose of this clause, the President and Deputy President

are legal members.

Clause 360 states that the Mental Health Tribunal may be constituted by a

single member, who is a legal member, for hearing and

determining specified hearings if the President has approved the

constitution. This applies to proceedings in both the general

division and the special division.

Subclause (3) allows the President to approve the Mental Health

Tribunal to be constituted by a single member if satisfied that it is

appropriate to do so. This power may be delegated to the

principal registrar by instrument.

Subclause (4) requires the approval to be in writing.

Subclause (5) requires a copy of an approval to be provided to

each party to the proceeding.

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Clause 361 stipulates that the presiding member in a proceeding of the

Mental Health Tribunal is the legal member of the Tribunal.

Part 7.5—Procedure of the Mental Health Tribunal

Clause 362 provides that the Mental Health Tribunal may regulate its own

procedure. The Mental Health Tribunal is not bound by the rules

of evidence, is bound by the rules of procedural fairness, may

inform itself on any matter as it sees fit, and must conduct

proceedings as expeditiously and with as little formality and

technicality as the Bill, regulations and rules and a proper

consideration of the matters before it permit.

Clause 363 provides that the parties to the proceeding before the Mental

Health Tribunal are the person subject to the proceeding, the

person's treating psychiatrist, any person who has been approved

to be a party to the proceeding, and any other person or body

joined as a party under clause 364.

Clause 364 provides for a person to be joined as a party to a proceeding of

the Mental Health Tribunal. The Tribunal is empowered to make

an order joining a party if satisfied that it is desirable to do so.

The principal registrar may, before the hearing commences, grant

an application from a person to be joined as a party. The

President, Deputy President or another Tribunal member of a

class specified in the rules may join a person as a party "on the

papers" i.e. without a hearing.

Clause 365 establishes that a person who is the subject of a proceeding of the

Mental Health Tribunal has the right to appear before the

Tribunal. The person may be represented by any other person

authorised by the person subject to the proceeding. If the person

subject to the proceeding is not represented, the Tribunal may

appoint another person to represent them.

Subclause (2) provides that the Tribunal may exclude a person

who is disruptive to the hearing.

Clause 366 establishes that a party may be assisted at a hearing by an

interpreter or another person who is necessary or desirable to

make the hearing intelligible to that party.

The Tribunal is empowered to appoint or call for the assistance of

an interpreter to provide interpreting services for the purposes of

any hearing, but may direct that a hearing continue without the

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assistance of an interpreter if satisfied that it is appropriate in the

circumstances.

Clause 367 requires that an application to the Mental Health Tribunal must

comply with the requirements that are set out in the rules made

under the Bill regarding form, content and the manner of

lodgement.

Clause 368 sets out when an application made to the Mental Health Tribunal

may be rejected.

The principal registrar may reject an application if it is made by a

person not entitled under the Bill to do so, is lodged outside the

timeframes set out in the Bill or does not comply with the

requirements under the Bill, regulations or rules.

If the principal registrar decides to reject an application, they are

required to advise the applicant of the right of review by the

President of the decision to reject the application. The principal

registrar may also refer a rejected application directly to the

President to review without an application for review being made

by the applicant.

Clause 369 provides that the President must review a decision to reject an

application, which can occur "on the papers", and may either

confirm the principal registrar's decision or direct the principal

registrar to accept the application.

Clause 370 empowers the Mental Health Tribunal to grant leave to an

applicant to withdraw their application prior to the application

being determined.

Subclause (3) allows the Tribunal to make an order striking out a

proceeding if the applicant fails to appear.

Subclause (4) provides that the powers of the Tribunal under this

clause can be exercised by the Tribunal as constituted for the

proceeding or by the principal registrar.

Subclause (5) requires the principal registrar to notify all parties

to a proceeding in writing of a decision by the Mental Health

Tribunal or principal registrar under this clause.

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Clause 371 requires the Mental Health Tribunal to list a matter for hearing a

give written notice of that hearing as soon as practicable to

specified persons.

Subclause (2) sets out what is to be specified in the written

notice.

Subclause (3) provides that the Tribunal may dispense with

giving the required notice if satisfied that it is appropriate to do

so in the circumstances.

Subclause (4) stipulates that a hearing, proceeding or

determination of the Tribunal is not invalid or affected by reason

only of a failure to give notice.

Clause 372 provides that the Mental Health Tribunal may hear and determine

multiple matters that relate to a single person concurrently.

Clause 373 requires a designated mental health service or a psychiatrist who

has applied to the Mental Health Tribunal for authorisation for

the performance of electroconvulsive treatment to give a person

who is the subject of a proceeding access to any documents in its

possession in connection with the proceeding at least 2 business

days before the hearing.

Subclause (2) provides that where an authorised psychiatrist or a

psychiatrist is of the opinion that the disclosure of information in

the documents may cause serious harm to the person or another

person, they may apply to the Mental Health Tribunal for the

person to be denied access.

Subclause (3) provides that if the Tribunal determines that the

disclosure of the information may cause serious harm, it may

deny the person access to the documents, proceed with the

hearing, and have regard to the information at the hearing.

Subclause (4) provides that if the Tribunal determines the

disclosure of the information will not cause serious harm, it may

order the designated mental health service or the psychiatrist who

has applied to the Mental Health Tribunal for authorisation for

the performance of electroconvulsive treatment to provide access

to the relevant document and adjourn the hearing for a period not

exceeding 5 business days and extend the duration of the relevant

order for the length of that period.

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Clause 374 stipulates that if a hearing relates to a person subject to a

temporary treatment order or a treatment order, the Mental

Health Tribunal must not adjourn the hearing to a date after the

expiration of the order, unless satisfied that exceptional

circumstances exist. If such a hearing is adjourned, the Tribunal

may extend the temporary treatment order or treatment order, but

only for a period of up to 10 days. The duration of an order

cannot be extended more than once.

Clause 375 provides that hearings of the Mental Health Tribunal are closed

to the public, except where the Tribunal orders that a hearing or

part of a hearing is to be open to the public after being satisfied

that it is in the public interest.

The clause allows a person who is the subject of a proceeding

under the Bill to make a written request to the Tribunal for the

hearing, or any part of the hearing, to be heard in public.

The Tribunal, in determining this request, must consider whether

holding part or all of the hearing in public would be a serious

threat to the health and safety of any person or prejudice the

interests of justice.

Clause 376 prohibits the publication of information that identifies a person

who is the subject of a proceeding before the Mental Health

Tribunal, unless written consent has been obtained from the

President and the person who is the subject of a proceeding.

Clause 377 provides than any question arising in a proceeding before the

Mental Health Tribunal, other than a question of law, is to be

determined by a majority of the members constituting the

Tribunal in that proceeding.

Subclause (2) requires oral reasons be given for making a

determination at the conclusion of the hearing, including an

explanation of the determination and an explanation of any order

made by the Tribunal under the Bill.

Subclause (3) establishes requirements for the form and content

of orders made under this Bill.

Subclause (4) requires that the Tribunal take reasonable steps as

soon as practicable after making an order to provide a copy of

that order to the same parties who received notice of the hearing

under clause 371(1).

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Clause 378 provides that a question of law arising in a proceeding before the

Mental Health Tribunal, including a question of mixed fact and

law, must be decided by the presiding member (pursuant to

clause 361, the presiding member is the legal member of the

Tribunal as constituted for that proceeding).

Clause 379 provides for the Mental Health Tribunal to refer any question of

law that arises in a proceeding to the Supreme Court.

Subclause (2) provides that the referral may be made on the

application of a party to the proceeding, or on the Tribunal's own

motion.

Subclause (3) provides that if a question of law is referred to the

Supreme Court, the Tribunal must not make a determination to

which that question is relevant while the referral is pending or

proceed in a manner or make a determination that is inconsistent

with the opinion of the Supreme Court on the question.

Subclause (4) provides that after referring a question of law, the

Tribunal may adjourn the hearing. The Tribunal may also extend

the duration of any temporary treatment order or treatment order

that applies to the person who is the subject of the proceeding in

which the question of law relates, until the referred question has

been resolved and the Tribunal has made its decision.

Clause 380 allows a person who is a party to a proceeding before the Mental

Health Tribunal to request a statement of reasons for a

determination made in that proceeding. The request must be in

writing and be received by the Tribunal within 20 business days

after the relevant decision. A request may be accepted outside of

this timeframe by the Tribunal in its discretion.

Within 20 business days after receiving a request for a statement

of reasons, the Mental Health Tribunal must provide the

statement to all parties to the proceeding and the statement must

be in a specified form.

Clause 381 allows the Mental Health Tribunal to make corrections to an

order or statement of reasons made by it, if the statement or order

contains certain specified errors or defects. The correction may

be made on the Tribunal's own motion or on the application of

any person in accordance with the rules.

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Clause 382 provides that a decision of the Mental Health Tribunal is not

invalid only because of a defect or irregularity in, or in

connection with, the appointment of the President, the Deputy

President or another Tribunal member.

Subclause (2) provides for a person whose appointment expires

during a hearing to be taken as a Tribunal member until the

matter is concluded.

Subclause (3) ensures that a proceeding before the Tribunal is not

invalidated or affected merely because the proceeding was not

heard within the timeframes specified under the Bill as a result of

an accidental or unintentional miscalculation of time.

Clause 383 allows a person who is a party to a proceeding before the Mental

Health Tribunal to apply to VCAT for review of any

determination made by the Tribunal under this Bill in that

proceeding.

The clause provides that an application must be made within

20 business days after the determination or, if the person

requested a statement of reasons, 20 business days after the date

the person received the statement of reasons. However, VCAT

may accept an application outside that timeframe if it determines

that special circumstances exist.

Clause 384 allows the Mental Health Tribunal to engage a person to provide

expert advice in relation to any matter arising in a proceeding,

including engaging legal counsel to assist and support the

Tribunal in any proceeding relating to an intensive monitored

supervision order. The Tribunal is responsible for the cost of any

such engagements.

Clause 385 allows the principal registrar to issue a witness summons to a

person to attend the Mental Health Tribunal to give evidence or

to produce a document or both. A witness summons may be

issued on the Tribunal's own motion or at the request of a party to

a proceeding. The clause provides that if the person is required

to attend the Mental Health Tribunal to produce documents, they

may provide that document to the principal registrar or the

Tribunal without attending the Tribunal, in accordance with any

directions in the witness summons.

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Clause 386 makes it an offence for a person to fail to comply with a

summons issued by the Mental Health Tribunal, without

reasonable excuse. The penalty is 60 penalty units.

Clause 387 makes it an offence for a person to knowingly provide false

information to the Mental Health Tribunal. The penalty is

120 penalty units for a natural person and 600 penalty units for a

body corporate.

Clause 388 makes it an offence for a person to be in contempt of the Mental

Health Tribunal. This includes insulting a Tribunal member,

repeatedly interrupting a hearing of the Tribunal, creating a

disturbance or taking part in creating or continuing a disturbance

in a place where the Tribunal is sitting, or doing anything that, if

the Tribunal were the Supreme Court, would constitute contempt

of that Court. The penalty is 120 penalty units.

Part 7.6—Rules Committee

Clause 389 establishes the Rules Committee of the Mental Health Tribunal.

Clause 390 sets out the functions of the Rules Committee, including

developing rules of practice and procedure and practice notes for

the Mental Health Tribunal, informing members of the Tribunal

of those rules of practice and procedure and practice notes, and to

perform any other functions conferred by the President.

Clause 391 allows the Rules Committee to make rules regulating, and issue

practice notes relating to, the practice and procedures of the

Mental Health Tribunal.

Clause 392 provides that the members of the Rules Committee shall be the

President, the Deputy President and any other members of the

Mental Health Tribunal selected by the President.

Clause 393 establishes that the Rules Committee may regulate its own

procedure, save that quorum is half of the number of members,

and the President, or in the absence of the President then the

Deputy President, presides at meetings.

Clause 394 stipulates that if a decision is made by the Rules Committee

while there is a vacancy in the office of a member, that decision

is not invalid merely by reason of that vacancy.

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Chapter 8—Community visitors and the Community Visitors

Mental Health Board

The Bill retains the existing oversight role, powers and functions of

Community Visitors. Community visitors perform a critical quality and

safety role, in visiting specified premises and protecting the rights of persons

receiving services at those premises. Community visitors make inquiries

about the adequacy of services provided and any non-compliance with the

Act and its regulations.

Part 8.1—Appointment of community visitors

Clause 395 provides for the appointment of community visitors by the

Governor in Council on the recommendation of the Public

Advocate.

Subclause (2) provides that the Public Advocate must ensure the

composition of community visitors is a fair and balanced

reflection of the diversity of the Victorian community.

Clause 396 provides for the term and conditions of the appointment of

community visitors.

Subclause (2) provides that community visitors must not be

employed by or have any direct interest in any contract with the

Department or a mental health and wellbeing service provider

while in office.

Subclause (3) states that the Public Administration Act 2004

does not apply to a community visitor in respect of the office of a

community visitor.

Clause 397 sets out the circumstances in which a community visitor may

cease to hold office. This includes if the community visitor

becomes insolvent under administration; is convicted of an

indictable offence or of an offence that, if committed in Victoria,

would be an indictable offence; is unable to perform the duties

and functions of the office of a community visitor; resigns; or is

removed from office.

Clause 398 states that the Governor in Council may remove a community

visitor from office, on the recommendation of the Public

Advocate.

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Part 8.2—Functions and powers of community visitors

Clause 399 sets out the functions of community visitors.

Clause 400 requires a community visitor to give proper consideration to the

mental health and wellbeing principles, ensure that decision

making processes are transparent, systematic and appropriate,

and consider ways to promote good mental health and wellbeing.

Clause 401 provides that community visitors may visit (either in person or

remotely) a prescribed premises with or without notice, and sets

out the powers which community visitors may exercise in visiting

prescribed premises.

Clause 402 provides that a person receiving mental health and wellbeing

services at a prescribed premises, or any person on their behalf,

may request a visit from a community visitor. The person in

charge of the prescribed premises must advise a community

visitor within 2 business days of receiving a request.

Clause 403 requires staff members at a prescribed premises to give

community visitors any reasonable assistance that is required to

enable community visitors to perform their functions or exercise

their powers.

Part 8.3—The Community Visitors Mental Health Board

Clause 404 establishes the Community Visitors Mental Health Board.

Clause 405 sets out the membership of the Community Visitors Mental

Health Board.

Clause 406 sets out the functions of the Community Visitors Mental Health

Board.

Clause 407 provides that the Community Visitors Mental Health Board may

refer matters reported by community visitors to appropriate

persons specified in this clause to deal with the matter.

Part 8.4—Reports and confidentiality

Clause 408 details reporting arrangements for community visitors and the

Community Visitors Mental Health Board.

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Clause 409 requires the Community Visitors Mental Health Board to submit

an annual report to the Minister as soon as practicable after the

end of each financial year but not later than the following

30 September.

Subclause (2) provides that the Minister must cause the annual

report to be tabled in each House of the Parliament before the

expiry of the 14th sitting day of each House after the annual

report has been received by the Minister.

Clause 410 makes provision for the confidentiality of information acquired

by community visitors by virtue of being community visitors.

The clause creates an offence for a person who is or has been a

community visitor to breach specified requirements regarding the

information acquired by virtue of being a community visitor.

The maximum penalty for this offence is 60 penalty units.

Subclause (2) provides that the offence provision does not apply

to a community visitor in specified circumstances, which include

in the course of a criminal proceeding or a proceeding under the

Bill or with the consent of the person to whom the information

relates.

Chapter 9—The Mental Health and Wellbeing Commission

The Royal Commission recommended the establishment of a new

independent oversight body—the Mental Health and Wellbeing Commission

(the Commission)—to provide statewide oversight of the mental health and

wellbeing system.

The Bill establishes the Commission as an independent statutory body

reporting directly to Parliament and comprising a Chair Commissioner and

three commissioners to be appointed by Governor in Council. The

Commission will include people with lived experience of mental illness or

psychological distress, and with lived experience as a family member, carer

or supporter.

The objectives of the Commission include holding government to account for

the performance, quality and safety of the mental health and wellbeing

system, including the implementation of recommendations made by the

Royal Commission.

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The objectives also include ensuring the mental health and wellbeing system

supports and promotes the health and wellbeing of consumers, families,

carers and the mental health and wellbeing workforce; and to reflect the

rights-based approach of the Bill - to promote, support and protect the rights

of consumers and families and carers.

The Commission's functions include to promote and support compliance with

the Bill.

The Commission will perform the functions and exercise powers that

currently rest with the Mental Health Complaints Commissioner under the

Mental Health Act 2014, with modifications to align with the complaint and

investigation approach of the Health Complaints Act 2016.

This will include a new "own initiative" power to inquire into matters

relevant to the Commission's oversight role; power to make

recommendations to the Premier, any Minister and the heads of public

service bodies; and a capacity to deal with complaints from families, carers

and supporters in relation to their experiences in those roles.

The Bill gives a broad range of powers and functions to the Commission,

including to—

• oversee the performance, quality and safety of services and the

mental health and wellbeing system; and

• oversee government's implementation of the Royal

Commission's recommendations; and

• receive and handle complaints; and

• assist in reducing stigma associated with mental health.

The specific functions of the Commission will operate alongside, and not

duplicate, the role of regulatory bodies such as the Australian Health

Practitioner Regulation Agency or complaints bodies such as the Health

Complaints Commissioner.

Complaints

As recommended by the Royal Commission, under the Bill, the powers of the

Mental Health Complaints Commissioner under the Mental Health Act 2014

transfer to the new Commission.

However, the Commission has strengthened oversight across Victorian

mental health and wellbeing services and a broader remit than the

Commissioner, with its quality, oversight and complaint handling functions

extending to all mental health and wellbeing service providers as defined in

the Bill.

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The Commission will make recommendations on areas for improvement,

advise government on areas of concern and report on the performance,

quality and safety of the system, as well as its own performance in handling

complaints, investigations and inquiries.

Other key components of the Commission's functions include the

following—

• the Commission will generally be able to receive complaints

from any person;

• the Commission will be able to consider complaints about

compliance with the principles of the Bill;

• carers will be able to lodge complaints about their own

treatment in a caring role;

• providers will be required to comply with complaint handling

standards.

Other key powers include that the Commission can—

• investigate complaints, making recommendations to service

providers, accept an undertaking from a provider to take

remedial action; and

• serve compliance notices if a provider has not complied with

an undertaking or has acted in contravention of the Bill; and

• work with services to understand the importance of consumer

complaints to build the capacity to respond to complaints in a

way that achieves positive outcomes; and

• use the insights into the quality and safety of mental health and

wellbeing service delivery captured through complaints to

initiate and inform reviews and inquiries.

Importantly, the Bill incorporates amendments that will be made to the

Mental Health Act 2014 when the Health Legislation Amendment

(Quality and Safety) Act 2022 commences. This will ensure that the new

statutory duty of candour, a key recommendation of Targeting Zero-the

report on the review of Hospital Quality Safety and Quality Assurance for

public health service entities under the Health Services Act 1988 (which

include designated mental health services) will also extend to the Victorian

Institute of Forensic Mental Health.

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The Bill will also ensure that the Commission is able to report to the Health

Secretary if the Commission reasonably believes that a complaint may relate

to a serious breach of the Act or a serious risk to the health and safety of a

person or people; or it becomes aware that a mental health and wellbeing

service provider or the Institute has not complied with the duty of candour.

Part 9.1—The Mental Health and Wellbeing Commission

Division 1—The Mental Health and Wellbeing Commission

Clause 411 establishes the Mental Health and Wellbeing Commission

(the Commission), which is constituted by the Mental Health and

Wellbeing Commissioners. The Commission is a body corporate

with a common seal and the normal powers of a body corporate.

Clause 412 provides for the common seal of the Commission to be kept and

used as authorised by the Commission and provides for the courts

to take judicial notice of the seal affixed to a document and to

presume, until the contrary is proved, that it was duly affixed.

Clause 413 sets out the objectives of the Commission. The objectives of the

Commission are—

• to ensure the Victorian government is accountable for—

• the performance, quality and safety of the mental

health and wellbeing system, including the

implementation of recommendations made by

the Royal Commission into Victoria's Mental

Health System; and

• ensuring the mental health and wellbeing system

supports and promotes the health and wellbeing

of consumers, families, carers and supporters and

the mental health and wellbeing workforce; and

• to support and promote the leadership and participation

of, persons living with mental illness or psychological

distress in decision making about policies and programs,

including those that directly affect them; and

• to provide a complaints-handling system and promote

effective complaint-handling by mental health and

wellbeing service providers; and

• to reduce stigma related to mental illness; and

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• to promote, support and protect the rights of consumers,

families, carers and supporters.

Clause 414 requires the Commission, in the performance of a function or

duty, or the exercise of a power under the Bill, to give proper

consideration to the mental health and wellbeing principles, and

ensure that decision making processes are transparent, systematic

and appropriate, and consider ways to promote good mental

health and wellbeing.

Clause 415 sets out the functions of the Commission. These functions

include—

• to promote the improvement, awareness and

understanding of mental health and wellbeing across

government, business and the wider community;

• to elevate the leadership, and support the full and

effective participation, of people with lived experience

of mental illness or psychological distress in decision-

making processes and to develop and support their

leadership capabilities;

• to design and deliver initiatives to develop awareness

and understanding of the experiences of people with

lived experience of mental illness or psychological

distress; and

• to promote the role, value and inclusion of families,

carers and supporters of persons living with mental

illness or psychological distress in the mental health and

wellbeing system; and

• to lead and support initiatives to prevent and address

stigma related to mental illness; and

• to issue guidance materials about how the mental health

and wellbeing principles should be applied in relation to

actions and decisions made under this Act; and

• to monitor and report on the performance, quality and

safety of the mental health and wellbeing system; and

• to report on the use of restrictive interventions in the

provision of mental health and wellbeing services; and

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• to monitor and report on progress to improve mental

health and wellbeing outcomes in the Victorian

community, including the government's progress in

relation to the implementation of recommendations

made by the Royal Commission into Victoria's Mental

Health System;

• functions that relate to the role of the Commission as the

primary complaints-handling system for the mental

health and wellbeing sector, including the provision of

complaints-handling and resolution services and

professional and community education about managing

and resolving complaints and the investigation of

complaints; and

• to provide information and make recommendations to

the specified entities or bodies in relation to improving

the provision of mental health and wellbeing services;

and

• at the request of the Minister, to investigate and report

on any matter arising out of the provision of mental

health and wellbeing services; and

• to initiate and conduct inquiries in relation to any matter

relating to the Commission's objectives and functions;

and

• to provide advice and report to the Parliament, the

Minister and any other relevant Minister in relation to

the performance, quality and safety of mental health and

wellbeing services; and

• to make recommendations to the Premier, the Minister

and any public sector body Head on any matter relating

to the Commission's objectives and functions; and

• to work collaboratively and share information with the

Department and other entities that have powers and

functions that relate to monitoring the safety and quality

of the mental health and wellbeing system for the

purposes of system monitoring and improvement; and

• to promote and support compliance with the Bill; and

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• to report to the Health Secretary any significant

contravention of this Act or any matter relating to the

operation of a mental health and wellbeing service that

poses a serious risk of harm to a person or the

community, of which the Commission becomes aware;

and

• to refer to the relevant regulator or oversight body, or to

both, any matter relating to the operation of a mental

health and wellbeing service that poses a serious risk of

harm to a person or the community, of which the

Commission becomes aware.

Clause 416 provides that the Commission has the power to do all things that

are necessary or convenient to be done for, or in connection with,

the performance of its functions.

Clause 417 allows the Commission to delegate any of its functions or powers

(other than the power of delegation itself) to a Commissioner,

including the Chair of the Commission, or any person or class of

persons employed or engaged by the Commission.

Clause 418 provides for the employment under Part 3 of the Public

Administration Act 2004, of any staff necessary to enable the

Commission to carry out its functions or powers. The clause also

enables the Commission to engage consultants, contractors and

agents and to enter into agreements or arrangements for the use

of any staff of the Department or a public sector body.

Clause 419 provides for the appointment and functions of the Chief

Executive Officer of the Commission. The CEO is employed as

an executive within the meaning of the Public Administration

Act 2004 and is responsible for the day to day operation and

management of the Commission. The CEO must not be a Mental

Health and Wellbeing Commissioner.

Division 2—Mental Health and Wellbeing Commissioners

Clause 420 provides for the Governor in Council, on the recommendation of

the Minister, to appoint 4 persons as Commissioners of the

Commission, one of whom is to be the Chair of the Commission.

In making a recommendation, the Minister must ensure—

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• at least one person is a person who identifies as

experiencing, or as having experienced, mental illness

or psychological distress, and has an understanding of

the diverse experiences and needs of those living with

mental illness or psychological distress, which may

inform their decisions as a Commissioner;

• one person is a person who identifies as caring for or

supporting, or having cared for or supported, a person

experiencing mental illness or psychological distress,

and has an understanding of the diverse experiences and

needs of families, carers and supporters of those

experiencing mental illness or psychological distress,

which may inform their decisions as a Commissioner;

• each of the above persons has lived experience that may

be relied on for the purposes of making decisions as a

Commissioner.

The Minister must have regard to the need for the Commissioners

to have experience skills or knowledge that are relevant to the

functions of the Commission, and to collectively have

understanding and experience of—

• the diverse needs of Aboriginal communities, the

importance of self-determination, the importance of

connection to culture, family, community and Country

and the importance of culturally responsive, safe and

appropriate services; and

• the diverse backgrounds and needs of people using the

mental health and wellbeing services in Victoria,

including age, disability, neurodiversity, culture,

language, communication, religion, race, gender identity

and sexual orientation.

Clause 421 provides that a Commissioner is appointed for a period of up to 5

years and is eligible for re-appointment. The other terms and

conditions are to be determined by the Governor in Council.

This clause provides that the Public Administration Act 2004

(other than Part 3) applies to each Commissioner.

Clause 422 sets out the process for the resignation of a Commissioner or a

vacancy in the office of a Commissioner.

Clause 423 sets out the process of removal from office of a Commissioner.

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Clause 424 provides for the appointment of a person as acting Commissioner

(including as acting Chair).

Clause 425 protects the Commissioners from personal liability in certain

circumstances. The liability attaches instead to the State.

Clause 426 provides that the Commissioners are collectively responsible for

setting the strategic direction of the Commission. The

Commissioners constitute the Commission and may exercise all

the powers and have all the functions conferred on a

Commissioner under the Bill or any other Act.

Division 3—Reports

Clause 427 requires the Commission to submit an annual report to the

Minister by 31 October each year on the performance of its

functions under this Bill during the financial year ending on

30 June immediately preceding. The annual report must include

the things set out in subclause (2).

Once the report is received by the Minister, the Minister must

cause a copy of the report to be laid before each House of the

Parliament within 14 sittings days of the relevant House.

Clause 428 allows the Commission to make a report to Parliament at any

time on any matters arising in connection with the performance

of its functions.

Clause 429 requires the Commission to allow a mental health and wellbeing

service provider or other person a reasonable opportunity to

respond to any adverse comment or opinion intended to be tabled

in Parliament under clause 428. Subclause (2) provides that the

Commission must not include in a report tabled in Parliament any

information that identifies, or is likely to lead to the identification

of, a person who is not the subject of any adverse comments or

opinions unless that person consents to the information being

included.

Part 9.2—Complaints

Division 1—Making a complaint

Clause 430 sets out the guiding principles of the Commission in relation to

complaints. The clause requires the Commission to act in a fair,

impartial and independent manner, seek to improve the quality

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and safety of mental health and wellbeing services, seek to

protect the rights under this Bill of persons seeking or receiving

services from mental health and wellbeing service providers and

act in an efficient, effective and flexible manner that avoids

unnecessary formality.

Clause 431 sets out the grounds for a consumer to make a complaint to the

Commission. A complaint may be made in relation to any matter

arising out of—

• the provision of mental health and wellbeing services or

a failure to provide mental health and wellbeing services

by a mental health and wellbeing service provider; or

• a failure by a mental health and wellbeing service

provider to make all reasonable efforts to comply with

the mental health and wellbeing principles or any other

duties or principles under this Bill; or

• the manner in which a complaint made by, or on behalf

of, the consumer to a mental health and wellbeing

service provider was handled by the mental health and

wellbeing service provider, including whether the

mental health and wellbeing service provider did not

comply with, or has acted inconsistently with, any

complaint handling standards.

Clause 432 sets out the grounds for making a complaint to the Commission

by a person other than a consumer. A complaint may be made in

relation to any matter arising out of—

• the provision of mental health and wellbeing services to

a consumer or a failure to provide mental health and

wellbeing services by a mental health and wellbeing

service provider to a consumer; or

• a failure by a mental health and wellbeing service

provider to make all reasonable efforts to comply with

the mental health and wellbeing principles or any other

principles or duties under this Bill; or

• the manner in which a complaint made by the person or

another person to a mental health and wellbeing service

provider was handled by the mental health and

wellbeing service provider, including whether the

mental health and wellbeing service provider did not

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comply with, or has acted inconsistently with, any

complaint handling standards.

Clause 433 provides that a complaint may be made to the Commission by a

carer, family member or supporter of a consumer of mental

health and wellbeing services in relation to their experience as a

carer, family member or supporter of the consumer and includes

grounds for the complaint.

Clause 434 provides that a person is not entitled to make a complaint to the

Commission more than 12 months after the matter giving rise to

the complaint occurs or, if a mental health and wellbeing service

was not provided, more than 12 months after the service was

sought.

The clause provides the Commission may deal with a complaint

made after the end of the 12 months if satisfied that the

circumstances of the complaint so require.

Clause 435 sets out how a complaint may be made to the Commission.

The Commission is empowered to keep confidential information

relating to the identity of the complainant if satisfied that there

are special circumstances and it is in the complainant's interest to

keep the information confidential. The Commission must also

consider whether keeping the information confidential would

unreasonably limit another person's right to procedural fairness.

Clause 436 requires the Commission to provide a complainant with

reasonable assistance to make, confirm or identify a party to, a

complaint.

Clause 437 requires the Commission to make a written record of a complaint,

including the date that the complaint was received.

Clause 438 requires the Commission to obtain the consent of the consumer of

the mental health and wellbeing services before handling a

complaint made on behalf of or in relation to the consumer unless

the Commission is satisfied that the person making the complaint

has legal authority to make decisions on behalf of the consumer,

is authorised by the consumer's advance statement of preferences

to bring a complaint or the consumer is deceased and the

complainant had a genuine interest in the consumer's wellbeing

or the complainant has a genuine interest in the consumer's

wellbeing or there are special circumstances that warrant

receiving the complaint without the consumer's consent.

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Subclause (2) sets out other circumstances in which the

Commission is not required to obtain the consumer's consent

before handling the complaint.

Nothing in this clause prevents the Commission from assisting a

person from resolving the complaint directly with the mental

health and wellbeing service provider that is the subject of the

complaint.

Clause 439 sets out preconditions to handling a complaint made by a carer,

family member or supporter of a consumer.

Subclause (2) sets out circumstances in which the Commission is

not required to obtain the consumer's consent before handling the

complaint.

Nothing in this clause prevents the Commission from assisting a

carer, family member or supporter of a consumer to resolve the

complaint directly with the mental health and wellbeing service

provider that is the subject of the complaint.

Clause 440 provides that this clause applies if a complaint has been

confirmed, if required, and recorded by the Commission.

Subclause (2) provides that the Commission may seek further

information about the complaint by interviewing the complainant

or requiring the complainant to provide more information.

Subclause (3) provides that to determine how to deal with the

complaint the Commission may request more information from

the complainant, the mental health and wellbeing service

provider, any person who received or sought the mental health

and wellbeing service (if applicable) or any other person whom

the Commission reasonably believes has relevant information.

Clause 441 specifies the preliminary options for responding to, and

resolving, the complaint. This includes the ability to provide

advice to the complainant about the options available to resolve

the complaint and the ability to attempt an early resolution of the

complaint with the complainant, the mental health and wellbeing

service provider and the consumer, if not the complainant, in any

manner and using any means that the Commission considers

appropriate.

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Clause 442 provides that a specified person or body may refer to the

Commission a complaint about the provision of mental health

and wellbeing services to a consumer, or the failure to provide

mental health and wellbeing services to a consumer, by a mental

health and wellbeing service provider. The Commission may

deal with a referred complaint as if it were made to the

Commission.

Clause 443 requires the Commission to notify specified persons if the

Commission decides to deal with a complaint referred by another

person or body under clause 442. The Commission must notify

the referring person or body if the Commission decides not to

deal with the complaint.

Clause 444 provides that a consumer who is a party to a complaint (other

than as the complainant) may give notice to the Commission that

they do not wish to be a party to the complaint. The notice can

be provided orally or in writing, however if provided orally the

Commission must confirm the notice in writing as soon as

practicable. On notice being given to the Commission under

subclause (1), the consumer is taken not to be a party to the

complaint.

Clause 445 provides for the withdrawal of complaints made to the

Commission.

Division 2—Procedure when a complaint is made to the Mental

Health and Wellbeing Commission

Clause 446 requires the Commission to decide whether or not to deal with a

complaint made to the Commission. A decision must be made as

soon as practicable after the complaint is received, or if the

Commission has attempted an early resolution of the complaint

and the complaint has not been resolved, as soon as practicable

after the failure to resolve the complaint.

Clause 447 sets out the circumstances in which the Commission may refuse

to deal with or cease dealing with a complaint or part of a

complaint. These include where the complaint is misconceived,

lacking in substance or does not otherwise warrant action, is not

made in good faith, or is made for an improper purpose or the

Commission does not have jurisdiction or the complaint has been

or is being otherwise considered or investigated, or the complaint

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has not been made in accordance with the requirements of the

Division 1 of Part 9.2.

The clause provides that the Commission may reopen a

complaint it has previously declined to deal with if the

Commission receives new information and, as a result of that

new information, the Commission is satisfied that further action

should be taken.

Clause 448 allows the Commission, with the consent of the complainant, to

refer a complaint, a part of the complaint or any matter arising

from a complaint, to another body, organisation, agency or entity

if the complaint raises issues that the Commission is satisfied

would be more appropriately dealt with by that other body,

organisation, agency or entity. The Commission is empowered to

refer matters without the consent of the consumer where the

complaint raises issues requiring investigation or inquiry by

another body, organisation, agency or entity and the referral is in

the public interest.

Subclause (3) empowers the Commission to provide information

to the body, organisation, agency or entity to which the complaint

is referred.

Subclause (4) requires the Commission to notify specified

persons or entities of the referral.

Clause 449 provides that the Commission is a health complaints entity within

the meaning of the Health Practitioner Regulation National Law.

The clause provides that a complaint agreed to be dealt with

under section 150 of the National Law must be referred to the

Australian Health Practitioner Regulation Agency or the relevant

National Board.

Clause 450 requires the Commission to give written notice of the decision

not to deal with a complaint and the reasons for the decision to

the complainant. The Commission is required to give written

notice in accordance with this clause of a decision to deal with or

cease to deal with a complaint to the complainant, the mental

health and wellbeing service provider who is a party and the

consumer if they are not the complainant. This requirement to

give notice to the consumer does not apply where the consumer

has notified the Commission that they do not wish to be a party to

the complaint, or where the Commission is satisfied that the

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notification would be detrimental to the consumer's wellbeing or

pose a risk to any other person.

Clause 451 sets out the processes which the Commission may adopt after

accepting a complaint. These include informal dispute

resolution, conciliation and conducting an investigation. In

determining which complaint resolution process to use, the

Commission must prefer the least formal action that is

appropriate in the circumstances.

This clause requires the Commission to give notification of the

complaint resolution process to parties to a complaint.

Clause 452 specifies the notification requirements to the parties to a

complaint. If the complaint is to be resolved through

conciliation, the Commission must give notice of the date that the

conciliation is proposed to commence, details of the whole or

part of the complaint that is subject to the conciliation, the

Commissioner's powers and the obligations of the parties and

details of the relevant offence provisions.

Clause 453 provides that if the parties to a complaint resolution process reach

an agreement, the Commission must make a written record of the

agreement and give a copy to each party.

Clause 454 provides that the Commission may divide or concurrently deal

with complaints.

Subclause (3) requires the Commission to give written notice to

the relevant parties of the action being taken by the Commission

as soon as possible after taking it.

However, subclause (4) provides that the Commission is not

required to give written notice if the consumer has notified the

Commission they do not wish to be a party to the complaint, or

the Commission is satisfied that notifying the consumer would be

detrimental to their wellbeing or pose a risk to any other person.

Clause 455 requires a mental health and wellbeing service provider that is

party to a complaint to participate in the complaint resolution

process in good faith.

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Clause 456 provides for the withdrawal from a complaint resolution process.

On receipt of notice of a withdrawal, the Commission may cease

the complaint resolution process and elect to either commence an

investigation or decide to take no further action in relation to the

complaint.

Clause 457 provides that the Commission may by written notice, cease a

complaint resolution process at any time if satisfied that the

process is no longer appropriate in the circumstances. The

Commission must give written notice to the parties of this.

Clause 458 provides that the Commission may, by written notice, require a

mental health and wellbeing service provider that is party to a

complaint to give a written response within 20 business days to

issues raised in the complaint. Failure to comply is an offence.

The maximum penalty for this offence is 100 penalty units for

bodies corporate and 20 penalty units for natural persons.

Clause 459 provides the Commission the power to extend the time within

which a mental health and wellbeing service provider must

respond to a notice given by the Commissioner under clause 458.

Division 3—Conciliation

Clause 460 describes the process for commencing conciliation of a complaint

before the Commission.

Clause 461 provides that parties to a conciliation are entitled to legal

representation, if authorised by the Commission and to

accompanied or represented by another person.

Clause 462 provides that the Commission may, by written notice, require a

mental health and wellbeing service provider that is party to a

conciliation produce any document or other evidence held by the

provider within 20 business days of the notice. Failure to comply

is an offence with a maximum penalty of 100 penalty units for

bodies corporate and 20 penalty units for natural persons.

Clause 463 sets out an offence which applies to any party to a complaint in

relation to the disclosure and use of information acquired during

the course of a conciliation process. The maximum penalty for

this offence is 100 penalty units for bodies corporate and

20 penalty units for natural persons.

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Clause 464 describes the process to be followed at the end of a conciliation

process.

Division 4—Complaint handling standards and procedures for

receiving, managing and resolving complaints

Clause 465 provides that the Commission must prepare a document that sets

out the proposed complaints handling standards for mental health

and wellbeing service providers and provide the document to the

Minister.

Subclause (2) specifies what the document may adopt. On the

recommendation of the Minister, the Governor in Council may,

by Order published in the Government Gazette, make the

complaint handling standards.

Clause 466 requires the Commission to review the complaint handling

standards at least once every 5 years in consultation with

specified persons and service providers.

Clause 467 sets out that the Commission has the ability to prepare a

document of amended complaint handling standards or a

document of revocation of complaint handling standards on its

own initiative or on completing a review under clause 466. This

document must be given to the Minister. On recommendation of

the Minister, the Governor in Council, by Order published in the

Government Gazette, may make the amended complaint handing

standards or revoke the complaint handling standards.

Clause 468 provides that an order made under clause 465(4), or 467(3)(a) or

(b), making, amending or revoking the complaint handling

standards, takes effect on the date that is 20 business days after

the day the Order is published in the Government Gazette, or if a

later day is specified in the order, on that later day.

Clause 469 requires a mental health and wellbeing service provider to

establish procedures for receiving, managing and resolving

complaints made directly to the provider about the provision of

mental health and wellbeing services. These procedures must

comply with the complaint handling standards.

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Division 5—Deferral of notification

Clause 470 allows the Commission to defer giving a relevant notice or

information at the same time as taking a relevant action where the

Commission reasonably believes that advising the party may

prejudice an investigation or place a person's life, health, safety

or welfare or the health, safety or welfare of the public at serious

risk. The clause defines relevant action and relevant notice or

information. The clause applies despite any requirement to the

contrary in any other clause of this Bill.

Clause 471 allows the Commission to defer giving a relevant notice or

information for a specified period at the request of a National

Board. In making such a request, the National Board must form

the reasonable belief that giving the notice or information may

seriously prejudice an investigation by the National Board, place

at risk a person's health or safety or place a person at risk of

harassment or intimidation.

Clause 472 allows the Commission to defer giving a relevant notice or

information for a specified period at the request of the Disability

Services Commissioner. A request may be made if the Disability

Services Commissioner considers that giving the notice or

information may affect the health, safety or welfare of a person

or prejudice the proper investigation of a complaint by the

Disability Services Commissioner under the Disability Act 2006.

Clause 473 allows the Commission to defer giving a relevant notice or

information for a specified period at the request of Health

Complaints Commissioner. In making such a request, the Health

Complaints Commissioner must form the reasonable belief that

giving the notice or information may prejudice the proper

investigation of a complaint by the Health Complaints

Commissioner under the Health Complaints Act 2016 or place a

person's life, health, safety or welfare or the health, safety or

welfare of the public at serious risk.

Clause 474 allows the Commission to defer giving a notice or information

for a specified period at the request of Victorian Disability

Worker Commissioner. In making such a request, the Victorian

Disability Worker Commissioner must form the reasonable belief

that giving the notice or information may prejudice the proper

investigation of a complaint by the Victorian Disability Worker

Commissioner under the Disability Services Safeguard

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Act 2018 or place at risk a person's health or safety or place a

person at risk of harassment or intimidation.

Part 9.3—Undertakings and compliance notices

Clause 475 sets out circumstances in which the Commission may accept an

undertaking by, or serve a compliance notice on, a mental health

and wellbeing service provider.

Part 9.4—Investigations by the Mental Health and Wellbeing

Commission

Division 1—Investigations

Clause 476 provides the circumstances in which the Commission may

conduct an investigation of a complaint.

Clause 477 provides that the Minister may refer a matter to the Commission

for investigation.

Clause 478 provides that the Commission may, at its own initiative, conduct

an investigation in relation to any matter that a person is able to

make a complaint about to the Commission under clause 431,

432 or 433.

Clause 479 prohibits the Commission from conducting an investigation of a

complaint while a conciliation is on foot.

Clause 480 requires that the Commission give written notice to each party to

the complaint of an investigation. The clause also requires the

Commission to give notice of a referred investigation or own

initiative investigation to any mental health and wellbeing service

provider that is the subject of the investigation and, in the case of

an investigation relating to mental health and wellbeing services

provided at a custodial setting, to the Justice Secretary. The

requirements for giving a notice are specified in subclauses (2)

and (3).

Clause 481 requires the Commission to prepare a written report on

completion of the investigation. The requirements of the written

report are set out in subclause (2).

Clause 482 requires that the Commission give the investigation report to the

mental health and wellbeing service provider that is the subject of

the investigation.

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The clause also requires the Commission to give the investigation

report to the Minister in the case of a referred investigation, and

to the Australian Health Practitioner Regulation Agency and any

relevant National Board (in whole or in part) if the investigation

report is relevant to the administration of the Health Practitioner

Regulation National Law. The Commission has the discretion to

give all or part of the investigation report to parties specified in

subclause (5).

Clause 483 requires a mental health and wellbeing service provider who has

received a report that contains recommendations to give a written

response to the Commission within the time set out in the

investigation report.

The response must state the actions being taken to implement the

recommendations and, if no action is being taken, detail the

reasons why and set out a plan to implement the recommendation

or otherwise address the issue dealt with in the recommendation.

Failure to provide a written response, without a reasonable

excuse, is an offence. The maximum penalty for this offence is

300 penalty units for bodies corporate and 60 penalty units for

natural persons.

Division 2—Follow up investigations

Clause 484 provides that the Commission may conduct a follow up

investigation as to whether there has been any failure by the

mental health and wellbeing service provider to implement any

undertaking or recommendation of an investigation report or a

follow up investigation report.

Clause 485 requires that the Commission give notice to the mental health and

wellbeing service provider as soon as possible after the making

of a decision to conduct a follow up investigation. The notice

must include a description of the matter being investigated.

Clause 486 describes the preconditions for a follow up investigation.

Clause 487 requires the Commission to prepare a written report of the follow

up investigation. The requirements of the written report are set

out in subclause (2).

Clause 488 requires the Commission to give a copy of the follow up

investigation report to the mental health and wellbeing service

provider that is the subject of the investigation.

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The clause also requires the Commission to give the follow up

investigation report to the Minister in the case of a referred

investigation, and to the Australian Health Practitioner

Regulation Agency and any relevant National Board (in whole or

in part) if the investigation report is relevant to the administration

of the Health Practitioner Regulation National Law. The

Commission has the discretion to give all or part of the

investigation report to parties specified in subclause (5).

Clause 489 requires a mental health and wellbeing service provider who has

received a follow up investigation report that contains

recommendations to give a written response to the Commission

within the time set out in the investigation report. This response

must state the actions being taken to implement the

recommendations and, if no action is being taken, detail the

reasons why and set out a plan to implement the recommendation

or otherwise address the issue dealt with in the recommendation.

Failure to provide a written response, without a reasonable

excuse, is an offence. The maximum penalty for this offence is

300 penalty units for bodies corporate and 60 penalty units for

natural persons.

Division 3—Conduct of investigations, authorised investigators

and related powers

Clause 490 describes the process to be followed by the Commission in

conducting an investigation under Part 9.4.

Clause 491 provides that if the Commission decides not to conduct an

investigation hearing in an investigation, the Commission may

take submissions and serve an investigation notice and must keep

a record of all submissions received and any decision made by

the Commission.

Clause 492 provides the notice requirements if the Commission decides to

conduct an investigation hearing.

Clause 493 provides that the Commission may authorise persons to exercise

powers under this Part as an authorised investigator.

Clause 494 provides that Commission must issue an identity card to each

authorised investigator.

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Clause 495 requires an authorised investigator to produce their identification

for inspection before exercising a power under this Division or at

any time during the exercise of the power upon request.

Clause 496 empowers an authorised investigator, to enter the premises of

mental health and wellbeing service providers, or in the case of

an investigation that relates to a person receiving mental health

and wellbeing services at a custodial setting, to enter the premises

of the custodial setting, for the purpose of an investigation. The

clause requires the consent of a specified person to the entry to a

custodial setting.

The clause articulates the powers which authorised investigators

may exercise following entry onto the premises of mental health

and wellbeing service providers or custodial settings.

Division 4—Investigation notices, investigation hearings and

powers related to investigation hearings

Clause 497 empowers the Commission to serve a written notice on a person

requiring the person to produce a specified document or thing,

attend an investigation hearing or appear or attend before the

Commission. The requirements for an investigation notice are

contained in subclause (2).

Clause 498 provides that a person served with an investigation notice must

not refuse or fail to comply with the notice without reasonable

excuse. The maximum penalty for this offence is 600 penalty

units for bodies corporate and 120 penalty units or 12 months

imprisonment or both for natural persons.

Clause 499 provides that the Commission may vary or revoke an

investigation notice on its own initiative. The Commission may

also vary or revoke the investigation notice or, on notice from the

person given the investigation notice, if satisfied that the person

has or will have a reasonable excuse for failing to comply with

the notice or the document or thing specified is not relevant to the

subject matter of the investigation hearing or investigation.

Clause 500 provides that the Commission may require a person to give

evidence or answer questions on oath or affirmation administered

by a Commissioner or a member of the staff of the Commission

if the person is required to appear before the Commission under

an investigation notice.

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Clause 501 enables the Commission to inspect any document produced to it

and retain or copy any document or thing produced at an

investigation hearing or under an investigation notice that is

relevant to the subject matter of the investigation or hearing.

Part 9.5—Compliance notices

Clause 502 sets out the circumstances in which the Commission may serve a

compliance notice on a mental health and wellbeing service

provider.

The clause provides that a compliance notice may require the

mental health and wellbeing service provider to take specified

action within a specified period for the purpose of ensuring

compliance with an undertaking given under Part 9.3 or with the

Bill and the regulations and to report to the Commission within a

specified time after having taken this action. Subclause (3)

empowers the Commission to extend the time for taking the

action.

Clause 503 provides that a person or a mental health and wellbeing service

provider whose interests are affected by a compliance notice may

apply to VCAT within 20 business days for review of the

decision to serve the compliance notice.

Clause 504 makes it an offence for a mental health and wellbeing service

provider to fail to comply with a compliance notice. The

maximum penalty for this offence is 1200 penalty units for

bodies corporate and 240 penalty units in any other case.

Part 9.6—Inquiries

Clause 505 authorises the Commission to conduct an inquiry in relation to

any matter relating to its objectives or functions on its own

initiative or as referred to the Commission by a House of the

Parliament, a Parliamentary Committee, a Minister, the Health

Secretary or the Chief Officer.

Clause 506 empowers the Commission to hold a public hearing for an

inquiry and sets out the processes for a public hearing.

Clause 507 requires the Commission, on completion of an inquiry, to prepare

a written report to be given to specified persons or bodies. If an

inquiry report includes a comment or opinion that is adverse to a

person, the Commission must give the person the opportunity to

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respond to the adverse material and fairly set out any such

response in the report.

Part 9.7—Protections and legal representation

Clause 508 excuses a person who is or was a Commissioner or staff of the

Commission from giving evidence in a court in relation to an

investigation unless the court gives leave.

Clause 509 provides that a person who gives information or evidence, or

produces a document or thing, in an investigation has the same

protection and immunity as a witness has in a proceeding in the

Supreme Court.

Clause 510 provides protection from personal liability for the complainant or

a person who produces a document or gives any information or

evidence to the Commission in making a complaint merely

because of the making of a complaint or the giving of any

document, information or evidence to the Commission.

Clause 511 provides that it is a reasonable excuse for a natural person to

refuse or fail to give information or do any other thing that the

person is required to do by or under Part 9.3, 9.4 or 9.5 or section

521 if the giving of the information or the doing of that other

thing would tend to incriminate the person.

Clause 512 provides that it is a reasonable excuse for a person to refuse or

fail to give information or do any other thing that the person is

required to do by or under Part 9.3, 9.4 or 9.5 or section 521 if

the giving of the information or the doing of that other thing

would be a breach of legal professional privilege or client legal

privilege.

Clause 513 makes it an offence for a person to, by threat or intimidation,

persuade or attempt to persuade another person not to make a

complaint under Part 9.2 or not to continue with any process

under Chapter 9 of the Bill. The maximum penalty for this

offence is 300 penalty units for bodies corporate and 60 penalty

units for natural persons.

Clause 514 makes it an offence for a person to refuse to employ, or dismiss

another person, or subject another person to any detrimental

action because the other person intends to make, makes or has

made a complaint under Part 9.2, or intends to take part in, or

takes part in, or has taken part in any process under Chapter 9 of

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the Bill. The maximum penalty for this offence is 300 penalty

units for bodies corporate and 60 penalty units for natural

persons.

The clause requires a mental health and wellbeing service

provider to take reasonable steps to ensure that its management

and staff do not take detrimental action against a consumer in

reprisal for the person making a complaint or for a complaint

being made on the consumer's behalf.

Clause 515 makes it an offence for a person to provide, for the purposes of

taking part in any process under Chapter 9 of the Bill, a

statement, either oral or written, which they know or ought to

know to be false or misleading in a material particular. The

maximum penalty for this offence is 300 penalty units for bodies

corporate and 60 penalty units for natural persons.

Clause 516 provides that a person may be accompanied or represented by

another person in relation to any process under Chapter 9 of the

Bill relating to a complaint, investigation or inquiry. The clause

also provides that a person may be represented by an Australian

legal practitioner in relation to these processes if authorised by

the Commission in the circumstances set out in subsection (3).

Part 9.8—Confidentiality, information collection and information

sharing

Division 1—Disclosure of information

Clause 517 makes it an offence for a person to disclose any information

obtained by that person in the course of an investigation or

complaint data review, except as authorised under this clause.

The clause allows disclosure in specified circumstances.

The circumstances where disclosure is permitted are set out in

subclauses (2) to (4). The maximum penalty for this offence is

60 penalty units for a natural person and 300 penalty units for a

body corporate.

Clause 518 makes it an offence for a Commissioner or a person employed or

engaged under clause 418(1) or (2) to disclose any information

obtained by that person in the course of a complaint resolution

process (other than a conciliation) except as authorised under this

clause. The circumstances where disclosure is permitted are set

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out in subclause (2). The maximum penalty for this offence is

60 penalty units.

Clause 519 makes it an offence for a Commissioner or a person employed or

engaged under clause 418(1) or (2) to disclose any information

obtained in the course of conciliation except as authorised under

this clause. The circumstances where disclosure is permitted are

set out in subclauses (2) to (4). The maximum penalty for this

offence is 60 penalty units.

Clause 520 provides that the Commission may decide that certain identifying

information collected in the course of conducting an investigation

or inquiry is not to be disclosed. In making such a decision, the

Commission must be satisfied that special circumstances exist

and that it is in the complainant or person's interests not to

disclose the information.

In making a decision not to disclose, the Commission must

consider whether not disclosing the information would

unreasonably limit another person's right to procedural fairness.

The decision not to disclose may be revoked by the Commission.

Clause 521 provides that the Commission may, by written notice, require a

mental health and wellbeing service provider to provide to the

Commission non-identifying information in respect of complaints

received or dealt with by the mental health and wellbeing service

provider. It is an offence for a provider not to comply with the

requirement within the required time unless they have a

reasonable excuse. The maximum penalty for this offence is

50 penalty units for bodies corporate and 10 penalty units for

natural persons. The Commission may extend the time for

compliance.

Clause 522 provides that the Commission may give information obtained in

the course of administering this Bill that is or may be the subject

of or relevant to a complaint, investigation or inquiry under the

Health Practitioner Regulation National Law or a relevant law to

the Australian Health Practitioner Regulation Agency (or any

relevant National Board) or to the person or body responsible for

dealing with a relevant law. The clause defines relevant law.

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Clause 523 provides that the Commission is a State entity for the purposes of

sections 219 and 220 of the Health Practitioner Regulation

National Law. Sections 219 and 220 of the Health Practitioner

Regulation National Law deal with the disclosure of information

to State entities among others.

Division 2—Reasonable assistance and information collection

Clause 524 requires specified bodies and persons to provide the Commission

with reasonable assistance to perform its functions or exercise its

powers under Chapter 9 of the Bill with respect to a mental

health and wellbeing service provider.

Clause 525 provides that the Commission, in performing its functions (except

under clause 415(h) and (i)and exercising its powers, may collect

health information, personal information, identifiers and unique

identifiers from the bodies specified in subclause (2) and

authorises those bodies to disclose the information.

Subclause (4) provides that this clause does not affect the

operation of the Health Records Act 2001, the Privacy and

Data Protection Act 2014 or the Victorian Data Sharing

Act 2017.

Clause 526 provides that mental health and wellbeing service providers and

data sharing bodies may disclose, and the Commission may

collect, certain data and information. The clause defines data

sharing body.

Clause 527 provides that the Commission may enter into information sharing

agreements with public sector bodies on its own behalf and on

behalf of the chief psychiatrists, the Chief Officer or a regional

mental health and wellbeing board for specified purposes and sets

out requirements for those agreements.

Part 9.9—Complaint data review

Clause 528 provides that the Commission may conduct a review of any

information given to it in dealing with a complaint or in the

conduct of an investigation if the Commission reasonably

believes persistent or recurrent issues related to the provision of a

mental health and wellbeing service may be identified by the

conduct of a review.

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The clause provides that the Commission may provide advice

based on the results of a complaint data review to a mental health

and wellbeing service provider regarding the provision of a

mental health and wellbeing service.

Clause 529 specifies the notification requirements and conduct of the

Commission in undertaking a complaint data review.

Clause 530 requires the Commission, on completion of a complaint data

review, to prepare a report. The requirements of the report are

set out in subclause (2).

Clause 531 requires the Commission to give a copy of the complaint data

review report (in whole or in part) to the mental health and

wellbeing service provider to whom the report relates.

Clause 532 requires a mental health and wellbeing service provider who has

received a report that contains recommendations to give a written

response to the Commission within the time set out in the

complaint data review report. This response must state the

actions being taken to implement the recommendations and, if no

action is being taken, detail the reasons why and set out a plan to

implement the recommendation or otherwise address the issue

dealt with in the recommendation.

Chapter 10—Security patients

Part 10.1—Preliminary

Clause 533 provides that in Chapter 10, a reference to the Justice Secretary

includes the Chief Commissioner of Police in relation to a person

who is, or who immediately before being detained in a designated

mental health service was serving a sentence of imprisonment in

a police gaol or being held in police custody on the order of the

court.

The clause provides that in Chapter 10 a reference to a prison or

other place of confinement includes a remand centre, youth

residential centre or youth justice centre and a police gaol.

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Part 10.2—Secure treatment order

Clause 534 describes the purpose of a secure treatment order, who may make

the order and what it authorises.

Clause 535 sets out the process for making a secure treatment order.

Subclause (1) provides that the Justice Secretary may make a

secure treatment order for a person who is detained in a prison or

other place of confinement.

The Justice Secretary must be satisfied that the criteria for

making an order apply to the person, based on the report from a

psychiatrist and any other evidence. The Justice Secretary must

have received a report from the authorised psychiatrist for a

designated mental health service recommending the making of

the order and stating that there are facilities or services at the

designated mental health service available for the detention and

treatment of the person.

Subclause (2) provides a secure treatment order cannot be made

for a person who is subject to a court secure treatment order and

is detained in a prison or other place of confinement.

Subclause (3) provides that the Justice Secretary must ensure that

reasonable steps are taken to inform the person of the order and

to explain its purpose and effect, as soon as practicable after the

secure treatment order is made.

Clause 536 provides that the authorised psychiatrist must, as soon as

practicable after the security patient subject to a secure treatment

order has been received at a designated mental health service,

ensure the Mental Health Tribunal is notified that the person has

been received at a designated mental health service and ensure

that reasonable steps are taken to inform other specified persons

that the security patient has been received at a designated mental

health service.

Subclause (2) requires the designated mental health service to

ensure that the primary non-legal mental health advocacy service

provider is notified as soon as practicable after a security patient

who is the subject of a secure treatment order is received at the

designated mental health service.

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Subclause (3) requires the authorised psychiatrist to ensure that

when a security patient who is the subject of a secure treatment

order is received at a designated mental health service that

reasonable steps are taken to give the security patient a statement

of rights.

Clause 537 provides that a security patient subject to a secure treatment order

may apply to the Mental Health Tribunal to revoke the order.

Subclause (2) provides that other specified persons may apply to

the Mental Health Tribunal on behalf of the security patient who

is subject to the secure treatment order to revoke the order.

Clause 538 provides for review of a secure treatment order by the Mental

Health Tribunal.

Subclause (1) provides that the Mental Health Tribunal must

conduct a hearing and determine whether the criteria for making

a secure detention order currently apply to the security patient

within 28 days beginning on and including the day the security

patient is received at the designated mental health service.

Following this, the order is to be reviewed at intervals not

exceeding 6 months while the person remains a security patient.

In addition, the order must be reviewed at any time an application

is made under clause 537.

Subclause (2) and (3) provide that on review the Mental Health

Tribunal must order that the person continue to be a security

patient if satisfied the criteria for a secure treatment order

continue to apply to the person. The Mental Health Tribunal

must discharge the person as a security patient if not satisfied that

the criteria apply to the person.

Clause 539 provides for a person subject to a secure treatment order to be

discharged as a security patient.

Subclause (1) provides that an authorised psychiatrist must

discharge a person as a security patient if they determine that the

criteria for a secure treatment order no longer apply or the Mental

Health Tribunal has ordered that the person be discharged as a

security patient or clause 559(1) applies.

Subclause (2) provides that a person discharged will cease to be a

security patient on entering the legal custody of the Justice

Secretary or, if the patient is due to be released on parole, upon

the release of the person.

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Subclause (3) provides that a secure treatment order is revoked

on the person being discharged as a security patient under this

clause.

Part 10.3—Court secure treatment orders

Clause 540 provides for the transfer of a person subject to a court secure

treatment order from a prison or other place of confinement to a

designated mental health service for treatment. The Justice

Secretary must not make a direction under subclause (1) unless

the requirements in subclause (2) are complied with. Subclause

(3) provides for the person to be informed of the transfer

direction and its purpose.

This clause applies where a person who is subject to a court

secure treatment order has been transferred to a prison or other

place of confinement under section 94C(5) of the Sentencing

Act 1991 after treatment in a designated mental health service

and who again becomes unwell and requires further treatment.

Clause 541 requires the authorised psychiatrist to ensure the Mental Health

Tribunal is notified that the person who is subject to a court

secure treatment order has been received at a designated mental

health service and ensure that reasonable steps are taken to

inform other specified persons that the security patient has been

received at a designated mental health service.

Subclause (2) requires the designated mental health service

provider to ensure that when a security patient the subject of a

court secure treatment order is received at a designated mental

health service, the primary non-legal mental health advocacy

service provider is notified as soon as practicable after the

security patient is received.

Subclause (3) requires the authorised psychiatrist to ensure that

when a security patient the subject of a court secure treatment

order is received at a designated mental health service that

reasonable steps are taken to give the security patient a statement

of rights.

Clause 542 provides that a security patient who is subject to a court secure

treatment order may apply to the Mental Health Tribunal for the

determination of whether the criteria set out in section 94B(1)(c)

of the Sentencing Act 1991 currently apply to the patient.

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Subclause (2) provides that other specified persons may apply to

the Mental Health Tribunal on behalf of the security patient for a

determination of whether those criteria currently apply.

Clause 543 provides for the Mental Health Tribunal to conduct a hearing to

determine whether the criteria in section 94B(1)(c) of the

Sentencing Act 1991 currently apply to the security patient. The

hearing must be held within 28 days beginning on and including

the day the security patient is received at the designated mental

health service. Following this a hearing is to be held at intervals

not exceeding 6 months while the person remains a security

patient. In addition, a hearing is to be held at any time an

application is made under clause 542.

Subclauses (2) and (3) require the Mental Health Tribunal to

order that the person continue to be a security patient if satisfied

the criteria for a court security treatment order apply to the

person. The Mental Health Tribunal must discharge the person

as a security patient if not satisfied that the criteria apply to the

person.

Clause 544 provides for a person subject to a court secure treatment order to

be discharged as a security patient.

Subclause (1) provides that an authorised psychiatrist must

discharge a person as a security patient in specified

circumstances.

Subclause (2) provides that a person who has been discharged as

a security patient will cease to be a security patient on entering

the legal custody of the Justice Secretary or, if the patient is due

to be released on parole, upon the release of the person.

Part 10.4—Leave of absence

Clause 545 provides for the grant of leave of absence for security patients.

Subclause (1) provides that the authorised psychiatrist may grant

a leave of absence to a security patient for treatment or medical

treatment or for any other purpose that the authorised psychiatrist

is satisfied is appropriate.

Subclause (2) provides for the duration of leave.

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Subclause (3) and (4) permit the authorised psychiatrist to grant

leave subject to any conditions and sets out the matters to be

taken into account when granting the leave or varying the

conditions or duration of the leave.

Subclause (5) provides that in making a determination under

subclause (3) or (4), to the extent that is reasonable in the

circumstances, the authorised psychiatrist must have regard to

specified matters.

Clause 546 provides for the revocation of leave by the authorised

psychiatrist. Revocation may only occur if the authorised

psychiatrist is satisfied that one of the specified criteria applies

and written notice of the revocation is given to the security

patient.

Clause 547 sets out the notification requirements for a leave of absence.

Clause 548 provides that a security patient may make an application to the

Mental Health Tribunal for the review of a decision of the

authorised psychiatrist to refuse to grant a leave of absence and

sets out the process for the Tribunal to determine the application.

Part 10.5—Monitored leave

Clause 549 provides for the application and grant of monitored leave for

security patients.

A security patient, the authorised psychiatrist of the designated

mental health service where the security patient is detained or a

specified person may apply to the Justice Secretary for monitored

leave for the security patient. The Justice Secretary may grant

monitored leave for a period not exceeding 6 months for one or

more purposes set out in subclause (4) if, on the evidence

available, the Justice Secretary is satisfied that the health and

safety of the security patient or the safety of any other person will

not be seriously endangered as a result, having regard to the

purpose of the monitored leave.

Subject to satisfying the criteria in the clause, monitored leave

may be granted more than once, but only one grant of monitored

leave can be in force at any one time. For example, a security

patient may be granted monitored leave for 3 consecutive periods

to complete a course of study.

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Clause 550 provides for the Justice Secretary to grant or vary monitored

leave subject to any conditions they consider necessary, having

regard to the purpose of the leave and if satisfied, on the evidence

available, that the health and safety of the security patient and the

safety of any other person will not be seriously endangered as a

result.

Clause 551 provides that in determining whether to grant monitored leave or

impose or vary its conditions or duration, the Justice Secretary

must have regard to the security patient's applicant profile and

leave plan, and to the extent that is reasonable in the

circumstances, have regard to the views and preferences of the

security patient and the views of other specified persons.

Clause 552 provides that whenever an application is made for monitored

leave, an authorised psychiatrist for the designated mental health

service where the security patient is detained is to prepare an

applicant profile and a leave plan for the Justice Secretary or

alternatively prepare for the Justice Secretary a statement setting

out the reasons why monitored leave should not be granted and

provide specified information.

Subclauses (2) and (3) specify the information to be contained in

an applicant profile and leave plan prepared by the authorised

psychiatrist.

Clause 553 provides for the revocation of monitored leave by the Justice

Secretary. Revocation may only occur where the Justice

Secretary is satisfied that one of the specified criteria set out in

that clause apply.

Clause 554 sets out the notification requirements for monitored leave.

As soon as practicable after deciding to grant, vary or revoke

monitored leave, the Justice Secretary must notify the authorised

psychiatrist for the designated mental health service in which the

security patient is or was detained of the Justice Secretary's

decision.

The authorised psychiatrist must then ensure reasonable steps are

taken to inform the security patient of the decision and explain its

purpose and effect and to notify the persons specified and the

primary non-legal advocacy service provider of the decision.

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Part 10.6—Transporting security patients to another designated

mental health service

Clause 555 provides for the transport of security patients between designated

mental health services at the written direction of the authorised

psychiatrist. The authorised psychiatrist must be satisfied this is

necessary for the security patient's treatment and the authorised

psychiatrist of the receiving designated mental health service

must also approve.

For the purposes of determining whether the transfer should

occur, the authorised psychiatrist must, to the extent reasonably

possible in the circumstances, have regard to the security patient's

views and preferences and the views of the persons listed in

subclause (2).

Clause 556 provides for the transport of security patients between designated

mental health services at the direction of the chief psychiatrist.

The chief psychiatrist must be satisfied that this is necessary for

the security patient's treatment and have regard to the same

matters as the authorised psychiatrist. The approval of the

authorised psychiatrist of the receiving designated mental health

service is not required.

Clause 557 sets out the information, notification and other obligations of the

authorised psychiatrist following the making of a transport

direction by the authorised psychiatrist or chief psychiatrist.

Clause 558 provides for review by the Mental Health Tribunal of a transport

direction relating to a security patient.

Subclauses (1) to (3) set out the procedural requirements for

making and hearing the application.

Subclause (4) provides that on hearing an application under this

clause the Mental Health Tribunal must have regard to the same

matters considered by the authorised psychiatrist or the chief

psychiatrist.

Subclause (5) provides the Mental Health Tribunal must refuse

the application and confirm the direction if satisfied that

transporting the security patient is necessary for the patient's

treatment. The Mental Health Tribunal must grant the

application and overturn the direction if not satisfied that

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transporting the patient to another designated mental health

service is necessary for the patient's treatment.

Subclause (6) provides that if the application is granted and the

direction overturned, the security patient is to be returned to the

original designated mental health service.

Subclause (7) provides that if the application is refused and the

direction confirmed, the security patient must be transported to

the receiving mental health and wellbeing service.

Part 10.7—General security patient matters

Clause 559 sets out the circumstances in which a person will automatically

cease to be a security patient.

Subclause (2) imposes an obligation on the Justice Secretary to

notify the authorised psychiatrist as soon as practicable of the

date on which a security patient's sentence of imprisonment or

detention is to expire.

Clause 560 provides for the authorised psychiatrist to impose security

conditions on a security patient and specifies in which settings

the security conditions apply.

Clause 561 sets out the notification obligations of the authorised psychiatrist

in relation to the discharge of a security patient.

Subclause (4) provides that as soon as practicable after the

Justice Secretary is notified, they must make the necessary

arrangements to transport the person to a prison or other place of

confinement if the person is discharged under clause 539(1)(a) or

(b) or 544(1)(a) or (b).

Clause 562 provides that a security patient is in the custody of the authorised

psychiatrist from the time they are received at the designated

mental health service until they cease to be security patient under

clause 559 or, if the authorised psychiatrist discharges the person

as a security patient, the person enters the legal custody of the

Justice Secretary.

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Clause 563 provides that an appropriate person may apply to magistrate, a

judge of the Supreme Court or a judge of the County Court for a

warrant to arrest a security patient. The magistrate or judge may

issue the warrant if satisfied by evidence on oath or affirmation

that the security patient is absent without leave from a designated

mental health service and appears to be no longer in Victoria.

Part 10.8—Interstate security patients

Clause 564 defines interstate security patient, mental health facility and

relevant State for the purposes of Part 10.8 of the Bill.

Clause 565 provides for the issue a warrant to arrest an interstate security

patient located in Victoria who is absent without leave or other

lawful authority from an interstate mental health facility.

The Health Secretary may apply to a magistrate for the issue of

the warrant if the Health Secretary is satisfied by evidence of the

matters specified in subclause (1)(a) to (d). If the magistrate is

satisfied by evidence on oath or by affirmation (whether oral or

by affidavit) of the matters specified in subclause (1)(a) to (d),

the magistrate may order that a warrant to arrest be issued against

the person who is the subject of the application.

Clause 566 provides for the orders that the Magistrates' Court may make in

respect of an interstate security patient arrested under warrant and

brought before the Court.

Clause 567 provides that within 7 days after an interstate security patient is

granted bail or remanded in custody in a prison, the Health

Secretary must apply to the Supreme Court for a translated

sentence to be imposed on the interstate security patient. The

Supreme Court may deal with the application or refer the

application to the County Court.

Subclause (3) provides that the court must make an order

imposing a translated sentence on the interstate security patient

and determine the period of that sentence already served, unless

the court is satisfied that the interstate security patient can be

returned to the relevant State.

Subclause (4) provides for the return of the interstate security

patient in specified circumstances. Subclauses (5) and (6) set out

requirements for determining a translated sentence.

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Clause 568 sets out the nature and effect of a translated sentence imposed on

an interstate security patient under clause 567.

Chapter 11—Forensic patients

Clause 569 defines Forensic Leave Panel and forensic patient for the

purposes of Chapter 11 of the Bill.

Clause 570 sets out the information, notification and other obligations of the

authorised psychiatrist following the transport of a forensic

patient to a designated mental health service, other than under

section 571, 572, 573 or 574.

Clause 571 provides for the transportation of forensic patients between

designated mental health services at the written direction of the

authorised psychiatrist.

Before giving a direction, the authorised psychiatrist must

determine that transporting the forensic patient is necessary for

the forensic patient's treatment and the authorised psychiatrist of

the receiving designated mental health service must approve.

In determining whether it is necessary for the forensic patient to

be transported to another designated mental health service, the

authorised psychiatrist must have regard to the matters listed in

subclause (3).

Subclause (2) provides that a transfer direction must not be made

in respect of a forensic patient detained under section 20BJ(1) or

20BM of the Crimes Act 1914 of the Commonwealth but the

authorised psychiatrist may recommend an order be made under

section 20BJ(2) of 20BM(7) of that Act to vary the designated

mental health service in which the forensic patient is detained.

Clause 572 provides for the transport of forensic patients between designated

mental health services at the written direction of the chief

psychiatrist.

The chief psychiatrist must be satisfied the transport of the

forensic patient to another designated mental health service is

necessary for the forensic patient's treatment having regard to the

same factors as the authorised psychiatrist.

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The clause provides a transfer direction must not be made in

respect of a forensic patient detained under section 20BJ(1) or

20BM of the Crimes Act 1914 of the Commonwealth but the

chief psychiatrist may recommend an order be made under

section 20BJ(2) of 20BM(7) of that Act to vary the designated

mental health service in which the forensic patient is detained.

Clause 573 sets out the information, notification and other obligations of the

authorised psychiatrist following the making of a transport

direction by the authorised psychiatrist or chief psychiatrist.

A note at the foot of the clause confirms that the duty to

communicate applies even if a written direction has been

provided to a person.

Clause 574 provides for the Forensic Leave Panel to review transport

directions under clauses 571 and 572 for forensic patients.

The forensic patient who is subject to a direction, or a specified

person on their behalf, may apply to the Forensic Leave Panel

within 20 business days after the direction is made.

The clause sets out the procedural requirements for making and

hearing an application to the Forensic Leave Panel. On review,

the Forensic Leave Panel must determine if the transportation of

the forensic patient to another designated mental health service is

necessary for the forensic patient's treatment, having regard to the

same factors considered by the authorised psychiatrist or chief

psychiatrist.

The Forensic Leave Panel must grant an application and overturn

the direction if it is not satisfied that transporting the forensic

patient to another designated mental health service is necessary

for the forensic patient's treatment. If the Forensic Leave Panel

overturns the direction, the forensic patient will not be

transported to the other designated mental health service, or will

be returned to the original designated mental health service.

The Forensic Leave Panel must refuse the application and

confirm the direction if it is satisfied that transporting the

forensic patient to another designated mental health service is

necessary for the forensic patient's treatment. If the Forensic

Leave Panel confirms the direction the forensic patient will be

transported to, or will remain at, the new designated mental

health service.

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Division 3 of Part 7 of, and Schedule 2 to, the Crimes (Mental

Impairment and Unfitness to be Tried) Act 1997, which deals

with procedure of the Forensic Leave Panel, applies to an

application under this clause as if references in that Division and

Schedule to the applicant for leave were references to the

forensic patient subject to the direction to be transported to

another designated mental health service.

Clause 575 provides for the authorised psychiatrist to impose security

conditions on a forensic patient where the authorised psychiatrist

is satisfied that those conditions are necessary to protect the

health and safety of the forensic patient or the safety of any other

person.

Clause 576 provides that a forensic patient may apply to the Forensic Leave

Panel for a leave of absence in accordance with Part 7 of the

Crimes (Mental Impairment and Unfitness to be Tried)

Act 1997.

Chapter 12—Intensive monitored supervision

The Bill establishes a new specialist intensive monitored supervision

response to meet the needs of a very small group of individuals who pose an

unacceptable and ongoing risk of serious endangerment to others. People

subject to this type of order type will be confined to a supervision unit with

their contact with others limited.

Currently these people may be subject to long periods of seclusion to address

the serious risk they pose to other patients and staff. Intensive monitored

supervision will provide an alternative that allows for the ongoing

management of risk, independent oversight by the Mental Health Tribunal

and requirements that the person is provided with facilities and supplies to

meet their needs, maintain their dignity and reflect their interests.

In recognition of the significant limitation of rights associated with these

orders, Intensive Monitored Supervision orders will only be available for

patients detained at the Thomas Embling hospital run by Forensicare. Orders

will be made by the Mental Health Tribunal for a maximum period of

28 days. The orders will be renewable.

The making of an application for an order is a point at which the non-legal

mental health advocacy service provider must be notified.

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Clause 577 describes an intensive monitored supervision order. An intensive

monitored supervision order is an order made by the Mental

Health Tribunal that allows the Institute to place certain patients

in intensive monitored supervision in a supervision unit located at

premises where the Institute provides secure services to security

patients, forensic patients or treatment patients and limit the

patient's contact with others for a period not exceeding 28 days

beginning on and including the day the order is made.

Clause 578 outlines the intensive monitored supervision criteria.

Clause 579 provides the circumstances in which an application for an

intensive monitored supervision order may be made in respect of

a patient.

In determining whether to make an application for an intensive

monitored supervision order , the authorised psychiatrist must

have regard to whether all less restrictive options have been

found to be ineffective and recommend a period of the order.

In determining whether all less restrictive options have been tried

and found ineffective to mitigate the risk, the authorised

psychiatrist must have regard to the views and preferences of the

patient and the views of other specified persons listed in

subclause (4), as well as the likely impact on the patient and their

culture, beliefs, values and personal characteristics.

The effect of this provision is to empower the authorised

psychiatrist to examine a patient to determine whether the

intensive monitored supervision order criteria apply to the

patient.

Clause 580 sets out the process for making an application for an intensive

monitored supervision order.

Clause 581 allows the authorised psychiatrist of the Institute to apply to the

Mental Health Tribunal for an intensive monitored supervision

order. The clause sets out the information, notification and other

obligations of the authorised psychiatrist following the making of

an application to the Mental Health Tribunal for an intensive

monitored supervision order.

Clause 582 requires the Mental Health Tribunal to list and complete a

hearing of an application for an intensive monitored supervision

order as soon as practicable and within 5 days after receiving the

application.

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The Mental Health Tribunal must not make an intensive

monitored supervision order unless it is satisfied that intensive

monitored supervision criteria apply to the patient , including

whether all less restrictive options have been tried to mitigate the

risk and have been found to be ineffective and the patient is able

to receive treatment or therapeutic intervention in a supervision

unit.

In determining whether all least restrictive options have been

tried to mitigate the risk and found to be ineffective, the Mental

Health Tribunal must have regard to the same factors considered

by the authorised psychiatrist.

Clause 583 provides for a patient subject to an intensive monitored

supervision order to be placed in intensive monitored supervision

in a supervision unit located at premises where the Institute

provides secure services and to have their contact with others

limited for the period specified in the order.

Subclause (1) specifies the procedural requirements of an

intensive monitored supervision order.

Subclause (3) provides that in executing an order, the authorised

psychiatrist must consider the safety of others and act to prevent

the possible harm with which the order is concerned, confine the

patient in the supervision unit in the least restrictive way possible

and act to advance the person's supervision plan.

The clause does not prevent a patient subject to an intensive

monitored supervision order from moving outside of the unit

(e.g. spending time in a secure outdoor area) or having contact

with other people if permitted by the authorised psychiatrist to do

so.

Clause 584 requires the authorised psychiatrist to ensure that, as soon as

practicable after an intensive monitored supervision order is

made, reasonable steps are taken to notify certain persons

including the patient subject to the order, that the order has been

made.

Clause 585 requires the authorised psychiatrist of the Institute to ensure that

a patient subject to an intensive monitored supervision order is

provided with facilities and supplies that meet their needs and

maintains their dignity, and is permitted to spend a reasonable

period of time outdoors every day. Subject only to safety

requirements, the supplies supplied to the patient must reflect the

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patient's interests and be of a kind that may reduce the effects of

isolation. In doing so, the authorised psychiatrist must have

regard to the factors listed in subclause (3).

Clause 586 requires the Institute to establish a clinical committee. The

committee is required to provide reports to the chief psychiatrist

on a weekly basis and, as soon as practicable after the end of an

intensive monitored supervision order, conduct a review of the

order in accordance with clause 590.

Clause 587 requires a registered medical practitioner or registered nurse and

authorised psychiatrist to monitor a patient subject to an intensive

monitored supervision order. This includes by way of clinical

review and examination.

Clause 588 provides when a patient's intensive monitored supervision order

ends and requires the authorised psychiatrist to immediately take

steps to release the patient once an order ends.

Clause 589 provides that a patient subject to an intensive monitored

supervision order and specified other persons may apply to the

Mental Health Tribunal at any time to have the order revoked.

Clause 590 provides that the Institute must, as soon as practicable after an

intensive monitored supervision order ends, appoint the intensive

monitored supervision clinical committee to conduct a review.

The purpose of the review is to determine the effectiveness of the

plan and the experience of the patient subject to the order.

Subclause (2) specifies the persons that must be invited to make

submissions and provide information as part of the review. The

findings of the review must be provided to the Institute and chief

psychiatrist.

Clause 591 requires the authorised psychiatrist to give a written report to the

chief psychiatrist on the use of intensive monitored supervision

on a patient if requested by the chief psychiatrist.

Clause 592 provides that an authorised psychiatrist is not personally liable

for any thing done or omitted to be done in good faith in the

exercise of a power or the performance of a function under

Chapter 12 of the Bill, or in the reasonable belief that the act or

omission was in the exercise of a power or the performance of a

function under Chapter 12 of the Bill. Any liability instead

attaches to the State.

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Chapter 13—Interstate application of mental health provisions

Part 13.1—General

Clause 593 provides that the Governor in Council may declare, by Order

published in the Government Gazette, that a law of another State

or a Territory is a corresponding law for the purposes of

Chapter 13 of the Bill.

This order may include a declaration that an order under that

corresponding law that is substantially similar to an assessment

order, a temporary treatment order or a treatment order is a

corresponding order for the purposes of Chapter 13 of the Bill.

Clause 594 provides that the Minister may make an agreement with a

Minister responsible for administering a corresponding law about

any matter in connection with the administration of Chapter 13 of

the Bill or a corresponding law.

Clause 595 lists the persons able to exercise powers under a corresponding

law or a Ministerial agreement.

Clause 596 enables a person who is authorised to perform functions or

exercise powers under a corresponding law or corresponding

order to perform those functions or exercise those powers in

Victoria.

Part 13.2—Assessment under Victorian orders interstate and

corresponding orders in Victoria

Clause 597 provides that a person subject to an assessment order may be

transported to an interstate mental health facility for assessment if

the interstate mental health facility is the most appropriate facility

in the circumstances. The transfer must also be permitted by or

under a corresponding law.

Subclause (2) lists the persons who may transport a person to an

interstate mental health facility.

Clause 598 provides that a person who may be transported to and detained in

an interstate mental health facility under a correspondence law in

a participating State or Territory may instead be transported to

Victoria and examined by a registered medical practitioner or

authorised mental health practitioner for the purpose of

determining whether the compulsory assessment criteria apply to

the person.

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Part 13.3—Interstate transfers

Clause 599 provides that the authorised psychiatrist or chief psychiatrist may

by direction, with the informed consent of the person subject to a

community temporary treatment order or a community treatment

order, transfer responsibility for the treatment of a person to an

interstate mental health facility.

The authorised psychiatrist or chief psychiatrist must be satisfied

that the transfer of responsibility is necessary for the person's

treatment. The transfer must also be permitted by the

corresponding law and the interstate authority for the interstate

mental health facility must agree to the transfer.

A person transferred under this clause ceases to be subject to a

community temporary treatment order or a community treatment

order on becoming subject to a corresponding order.

The authorised psychiatrist or chief psychiatrist must ensure that

any documents relevant to the person are forwarded to the

interstate mental health facility.

Clause 600 provides that the authorised psychiatrist or chief psychiatrist may

by direction, with the consent of a person subject to an inpatient

temporary treatment order or an inpatient treatment order,

transfer the person to an interstate mental health facility.

The authorised psychiatrist and chief psychiatrist must be

satisfied that the transfer is necessary for the person's treatment.

The transfer must also be permitted by or under the

corresponding law and the interstate authority for the interstate

mental health facility must agree to receive the person.

Subclause (3) lists the persons who may transport a person to an

interstate mental health facility.

The authorised psychiatrist or chief psychiatrist must ensure that

any documents relevant to the person are forwarded to the

interstate mental health facility.

Clause 601 provides for the transfer of responsibility for treatment of a

person subject to a community temporary treatment order or

community treatment order to an interstate mental health facility

where the person does not have capacity to give informed

consent or does not consent to the transfer.

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The authorised psychiatrist or chief psychiatrist may make an

application to the Mental Health Tribunal for an interstate

transfer of treatment order if satisfied that the transfer of the

responsibility for treatment is necessary for the person's

treatment, permitted by or under corresponding law and the

interstate authority for the interstate mental health facility agrees

to the transfer. An application for an interstate transfer of

treatment order must be heard and determined by the Mental

Health Tribunal as soon as practicable.

In determining an application, the Mental Health Tribunal must,

to the extent that is reasonable in the circumstances, have regard

to the views and preferences of the person and the views of other

specified persons.

The Mental Health Tribunal must make an interstate transfer of

treatment order if satisfied of the same criteria as the authorised

psychiatrist or chief psychiatrist.

The Mental Health Tribunal must refuse to make an interstate

transfer of treatment order if the Tribunal is not satisfied of these

factors. If the application is refused, the person will not be

transferred.

A person in relation to whom responsibility for treatment is

transferred ceases to be subject to a community temporary

treatment order or a community treatment order on becoming

subject to a corresponding order.

The authorised psychiatrist or chief psychiatrist must ensure that

any documents relevant to the person in relation to whom

responsibility for treatment is transferred are forwarded to the

interstate mental health facility.

Clause 602 provides for the transfer of a person subject to an inpatient

temporary treatment order or an inpatient treatment order to an

interstate mental health facility where the person does not have

capacity to provide informed consent or does not consent to the

transfer in specified circumstances.

The authorised psychiatrist or chief psychiatrist may make an

application to the Mental Health Tribunal for an interstate

transfer order if satisfied that the transfer is necessary for the

person's treatment, permitted by or under corresponding law and

the interstate authority for the interstate mental health facility

agrees to admit the person. An application for an interstate

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transfer order must be heard and determined by the Mental

Health Tribunal as soon as practicable.

In determining an application, the Mental Health Tribunal must,

to the extent that is reasonable in the circumstances, have regard

to the person's views and preferences and the views of other

specified persons.

The Mental Health Tribunal must determine if the interstate

transfer order is necessary for the person's treatment, having

regard to the same criteria considered by the authorised

psychiatrist or chief psychiatrist. The Mental Health Tribunal

must make an interstate transfer order if satisfied of these factors.

The Mental Health Tribunal must refuse to make an interstate

transfer order if not satisfied of these factors. If the application is

refused, the person will not be transferred.

A person transferred or transported under this clause ceases to be

subject to an inpatient temporary treatment order or inpatient

treatment order on admission to the interstate mental health

facility or on becoming subject to a corresponding order under a

corresponding law.

The authorised psychiatrist or chief psychiatrist must ensure that

any documents relevant to the person who is transferred or

transported to the interstate mental health facility are forwarded

to the interstate mental health facility.

Clause 603 provides that the authorised psychiatrist must, as soon as

practicable after the transfer order is made, ensure all reasonable

steps are taken to inform the patient of the order, explain its

purpose and effect and give a copy of the order and a statement

of rights to the patient.

Clause 604 sets out the information, notification and other obligations of the

authorised psychiatrist following the making of a transfer order.

Clause 605 provides that the authorised psychiatrist or chief psychiatrist who

applied for the transfer order must ensure that the primary non-

legal mental health advocacy service provider is notified of the

making of the order.

Clause 606 provides that a person who is compulsorily detained in an

interstate mental health facility under a corresponding law or

subject to a corresponding order may be transported to Victoria

in accordance with the correspondence law and examined by an

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authorised psychiatrist to determine if the person should be made

subject to a temporary treatment order.

The transfer can only occur with the prior approval of the

authorised psychiatrist. Subclause (2) lists the persons who may

transport a person to the authorised psychiatrist who will examine

the person. The authorised psychiatrist may examine the person

at a designated mental health facility or in the community.

A person transferred under this clause ceases to be subject to a

corresponding order when the person is made subject to a

temporary treatment order.

Part 13.4—Interstate application of Victorian orders

Clause 607 provides for the interstate application of Victorian community

temporary treatment orders and community treatment orders.

This clause enables a person to receive treatment in accordance

with the community temporary treatment order and community

treatment order from any person authorised under this Bill to

perform those functions or exercise those powers.

Part 13.5—Persons absent without leave who are interstate

Clause 608 provides circumstances in which a person who is absent without

leave or other lawful authority from an interstate mental health

facility in a participating State or Territory may be taken into care

and control in Victoria.

The clause provides that a person is absent without lawful

authority from an interstate mental health facility if the person

did not return to the facility when required under corresponding

law.

As soon as reasonably practicable to do so, a person apprehended

or taken into care and control must be informed of why the

person has been apprehended and transported to an interstate

mental health facility in the participating State or Territory by a

person listed in subclause (2). However, pending the return of

the person apprehended, the person may be detained, assessed

and treated in a designated mental health service.

Clause 609 provides that a person absent without leave from a designated

mental health service who is taken into care and control in a

participating State or Territory may be returned to the designated

mental health service by an authorised person (as defined in

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section 3) or a person authorised to do so under a corresponding

law in that State.

Chapter 14—Victorian Institute of Forensic Mental Health

Chapter 14 provides for the Victorian Institute of Forensic Mental Health

(operating as Forensicare) as the state-wide specialist provider of forensic

mental health and wellbeing services in Victoria. As the Royal Commission

did not recommend any changes, the Bill re-enacts the provisions of the

Mental Health Act 2014 relating to the Institute, with minor modifications

required to reflect provisions of the new legislation and promote greater

alignment with other Victorian mental health and wellbeing service providers

As provided by Chapter 12, a new type of order—an intensive monitored

supervision order—will be available at Thomas Embling Hospital, operated

by Forensicare, to address the needs of a small cohort of people who present

an ongoing risk of serious endangerment to others.

Part 14.1—Preliminary

Clause 610 establishes the Victorian Institute of Forensic Mental Health

(the Institute). The Institute is a body corporate with an official

seal and the normal powers of a body corporate.

Clause 611 provides that the Victorian Institute of Forensic Mental Health

may carry on business under the name "Forensicare".

Clause 612 provides that the Institute represents the Crown.

Clause 613 sets out the functions of the Institute. These functions reflect the

role of the Institute as the primary provider of a wide range of

services in the field of forensic mental health and wellbeing. In

addition to the provision of assessment and treatment services,

the Institute will also provide professional and community

education and conduct research in the area of forensic mental

health and associated disciplines.

Clause 614 provides that the Institute has the power to do all things that are

necessary or convenient to be done for, or in connection with, or

incidental to, the performance of its functions. This includes the

power to enter into arrangements and impose fees and charges for

the provision of services, and seek and accept funds from any

person for the purposes of performing its functions.

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The clause provides that the Institute must have regard to the

needs and views of individuals receiving mental health and

wellbeing services provided by the Institute, communities served

by the Institute, providers of mental health and wellbeing

services and other relevant persons in performing its powers and

exercising its functions. The Institute must also have regard to

the need to ensure that the Institute uses its resources in an

effective and efficient manner and the need to continuously strive

to improve the quality and safety of the services it provides and

promote innovation.

In performing its functions and exercising its powers, the

Institute must comply with the duty of candour specified in

Part 14.4.

Clause 615 requires the Institute, in the performance of a function or duty or

the exercise of a power under this Bill, to give proper

consideration to the mental health and wellbeing principles,

ensure that decision making processes are transparent, systematic

and appropriate and consider ways to promote good mental

health and wellbeing.

Part 14.2—Institute Board

Clause 616 provides that the Institute has a board of directors (the Institute

Board) responsible for setting out the strategic direction of the

Institute, establishing a governance framework and monitoring

compliance with the framework. The Institute Board may

exercise the powers of the Institute.

Clause 617 sets out the functions of the Institute Board. The intention is to

strengthen and elevate roles and responsibilities for quality and

safety and to improve governance arrangements.

Clause 618 provides for the membership of the Institute Board. The Institute

Board consists of a nominee of the Attorney-General, a nominee

of the Minister administering the Corrections Act 1986, and at

least 4, but not more than 7, other directors of whom—

• at least one person identifies as experiencing, or as

having experienced, mental illness or psychological

distress; and

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• at least one person identifies as caring for or supporting,

or having cared for or supported, a person with mental

illness or psychological distress; and

• at least one person has knowledge of, or experience in,

accountancy or financial management.

Clause 619 provides that each director, including the chairperson, must be

appointed by the Governor in Council on the recommendation of

the Minister.

Clause 620 provides that the Public Administration Act 2004 (other than

Part 3) applies to a director, and that each director holds office

for a period of up to 3 years and is eligible for re-appointment but

must not serve on the Institute Board for more than 3 terms.

Clause 621 sets out the process for resignation or removal of a director.

Clause 622 protects a director from personal liability in certain

circumstances. Any such liability attaches instead to the

Institute.

Clause 623 makes provision for the validity of a decision of the Institute

Board even though there is a defect or irregularity in the

appointment of a director or a vacancy in the membership of the

Institute Board.

Clause 624 provides that the Institute Board may regulate its own procedure.

Clause 625 allows the Minister to publish guidelines in the Government

Gazette relating to the role and procedure of the Institute Board

and how it may carry out its functions.

Clause 626 provides a mechanism for the Minister to appoint not more than

2 delegates to the Institute Board if the Minister considers that

such an appointment will improve the performance of the

Institute.

Clause 627 sets out the functions of a delegate which are—

• to attend meetings of the Institute Board and observe its

decision making processes;

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• to provide advice or information to the board to assist it

in understanding its obligations under this Bill;

• to advise the Minister and the Health Secretary on any

matter relating to the Institute or the Institute Board.

Clause 628 sets out the Institute Board's obligations to permit a delegate to

attend any meeting of the Institute Board or of its committees,

and to provide a delegate with any information, notice or other

document at the same time that it is provided to the directors or

the members of committees.

Part 14.3—General

Clause 629 provides for the appointment of the CEO of the Institute by the

Institute Board, subject to the approval of the Health Secretary.

The clause sets out the CEO's functions. The CEO is subject to

the direction of the Institute Board and responsible for the

corporate management of the Institute.

Clause 630 provides for the Institute to employ any staff necessary to carry

out the functions of the Institute.

Clause 631 allows the Minister to issue directions to the Institute, which must

be published in the Government Gazette and complied with by

the Institute.

Clause 632 allows the Health Secretary to direct the Institute about certain

matters relevant to the Health Secretary's functions under this

Bill, and requires the Institute Board to comply with any such

direction issued.

This clause is similar to the Health Secretary's power to give

directions to a public hospital or denominational hospital under

section 42 of the Health Services Act 1988. This is intended to

provide greater alignment with the power to give directions to

other mental health and wellbeing service providers. An example

of the type of direction that may be made is requiring that all staff

are fully vaccinated and implications for non-compliance.

Clause 633 requires the Institute Board, at the direction of the Minister, to

prepare and submit to the Minister a strategic plan for the

operation of the Institute.

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Clause 634 provides that the Institute Board must prepare, in consultation

with the Health Secretary, a proposed statement of priorities for

the Institute in respect of each financial year and submit it to the

Minister for approval. If the Institute Board and Minister fail to

agree on a statement of priorities before 1 October, the Minister

may make a statement of priorities for the relevant financial year.

The clause specifies what must be specified in a statement of

priorities, including the objectives and key performance

outcomes to be met by the Institute, and performance targets

against which the Institute's performance is to be assessed and

monitored.

Clause 635 provides that the Institute Board must notify the Minister and

Health Secretary of matters which are of public concern or risk

that may affect the Institute as soon as practicable after the

Institute Board becomes aware of the matter.

Part 14.4—Duty of candour

Clause 636 defines apology, civil proceeding, serious adverse patient safety

event and Victorian Duty of Candour Guidelines for the

purposes of Part 14.4 of the Bill.

Clause 637 imposes a duty of candour on the Institute where a patient suffers

a serious adverse patient safety event in the course of receiving

mental health and wellbeing services from the Institute. The

Institute must provide the patient with certain information,

including a written account of the facts regarding the event, an

apology for the harm suffered by the patient, a description of the

Institute's response to the event and the steps the Institute has

taken to prevent re-occurrence of the event. The patient may opt

out of receiving this information.

A patient that has opted out under subclause (2) may later elect to

receive the information required by the duty of candour.

Clause 638 provides that an apology is not an admission of, or relevant to the

determination of, fault or liability in connection with any civil

proceeding where the death or injury of a person is in issue.

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Clause 639 provides that the Institute's non-compliance with the duty of

candour may be taken into account by the Minister or Health

Secretary when assessing—

• whether the Institute provides safe, patient-centred and

appropriate mental health and wellbeing services; or

• the quality and safety of mental health and wellbeing

services provided by the Institute.

Chapter 15—Victorian Collaborative Centre for Mental Health

and Wellbeing

Chapter 15 of the Bill re-enacts provisions of the Victorian Collaborative

Centre for Mental Health and Wellbeing Act 2021, which passed the

Victorian Parliament in November 2021.

The Victorian Collaborative Centre for Mental Health and Wellbeing brings

people with lived experience together with researchers and experts in

multidisciplinary clinical and non-clinical care to develop and provide adult

mental health and wellbeing services, conduct research and disseminate

knowledge with the aim of delivering the best possible outcomes for people

living with mental illness and psychological distress.

The Victorian Collaborative Centre for Mental Health and Wellbeing is now

brought within the Bill and will be a designated mental health service.

Part 15.1—Victorian Collaborative Centre for Mental Health and

Wellbeing

Division 1—Establishment, functions and powers

Clause 640 establishes the Victorian Collaborative Centre for Mental Health

and Wellbeing (the Centre). The Centre is a body corporate with

an official seal and the normal powers of a body corporate.

Clause 641 provides for the courts to assume that the official seal of the

Centre, when affixed to a document, was duly affixed unless the

contrary is proven.

Clause 642 provides that the Centre represents the Crown.

Clause 643 sets out the functions of the Centre.

Clause 644 provides that the Centre has the power to do all things that are

necessary or convenient to be done for, or in connection with, or

incidental to, the performance of its functions.

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Clause 645 requires the Centre to—

• give proper consideration to the mental health and

wellbeing principles;

• ensure that decision making processes are transparent,

systematic and appropriate;

• consider ways to promote good mental health and

wellbeing.

Clause 646 provides that the Centre must, with the approval of the Minister,

enter into an agreement with another designated mental health

service and an academic institute that conducts research in the

field of mental health and wellbeing to assist the Centre perform

its functions.

Division 2—Board

Clause 647 requires the Centre to have a governing body (Centre Board)

responsible for the management of the Centre. Each director will

be appointed by the Governor in Council on the recommendation

of the Minister. The Minister must ensure—

• at least 2 members are persons who identify as

experiencing, or as having experienced, mental illness

or psychological distress;

• at least 2 members are persons who identify as caring

for or supporting, or having cared for or supported, a

person with mental illness or psychological distress;

• at least one member is a representative of the designated

mental health service with which the Centre has entered

into an agreement;

• at least one member is a representative of the board is a

representative of the academic institute with which the

Centre has entered into an agreement.

Clause 648 sets out the functions of the Centre Board.

Clause 649 provides for members of the Centre Board to receive

remuneration and allowances as fixed by the Governor in

Council.

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Clause 650 provides that a member of the Centre Board holds office for a

period of up to 3 years and is eligible for re-appointment for up to

3 terms. A member of the Centre Board may only hold office for

more than 9 consecutive years where the Minister is satisfied that

exceptional circumstances exist.

Clause 651 sets out the process for resignation of a member of the Centre

Board.

Clause 652 sets out the process for removal of a member of the Centre

Board.

Clause 653 provides for the appointment, functions and resignation of the

chairperson of the Centre Board.

Clause 654 provides for the appointment of a member of the Centre Board as

acting chairperson.

Clause 655 provides that the Centre Board may regulate its own procedure,

provided that—

• the quorum is a majority of the members of the Centre

Board and includes at least 2 members referred to in

clause 647(6);

• the chairperson, the acting chairperson, or in the

absence of both, a member elected by the members of

the meeting, presides at meetings.

Clause 656 provides that the Centre Board may establish committees to assist

the Board in performing any of its functions or provide expert

advice on any matter relating to the Centre Board's functions.

Clause 657 allows the Centre Board to issue, vary or revoke guidelines for or

with respect to the performance of the directors' functions,

including the sharing of responsibilities.

Clause 658 allows the Centre Board to delegate its powers or functions under

this Bill, except the power of delegation, to any member of the

Centre Board, director(s) or person listed in clause 663.

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Division 3—Directors and staff

Clause 659 provides for—

• the employment of 2 appropriately qualified directors of

the Centre, by the chair in consultation with the board,

under Part 3 of the Public Administration Act 2004;

• the employment of an executive within the meaning of

the Public Administration Act 2004.

The clause prohibits a person employed as a director being a

member of the Centre Board.

Clause 660 requires the Centre Board, subject to approval of the Minister, to

appoint an acting director if either office is vacant for 3 months

or more. An acting director has all the powers and functions of a

director.

Clause 661 sets out the functions and powers of the directors.

Clause 662 allows the directors of the Centre Board to jointly delegate, by

instrument, any director function or power to any person referred

to in clause 663.

Clause 663 provides that there may be employed under Part 3 of the Public

Administration Act 2004 any staff necessary to carry out the

Centre's functions. In addition, the Centre may enter into

agreements or arrangements for the use of any staff of a

Department, statutory authority or other public sector body.

Division 4—Directions, guidelines, statement of priorities and

strategic plans

Clause 664 allows the Minister to direct the Centre about the performance of

the Centre's functions and compels the Centre to comply with any

such direction issued.

Clause 665 allows the Minister to publish, amend or revoke in the

Government Gazette guidelines relating to the performance of the

Centre's, or the Centre Board's, functions. The Centre or the

Centre Board (as the case requires) must comply with any

guidelines issued by the Minister.

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Clause 666 provides that the Centre Board must prepare, in consultation with

the Health Secretary, a proposed statement of priorities in respect

of each financial year and submit it to the Minister for approval.

If the Centre Board and the Minister fail to agree on a statement

of priorities before 1 October, the Minister may make a statement

of priorities for the Centre for the relevant financial year.

The clause specifies what must be included in a statement of

priorities. It must set out the services to be provided by the

Centre and the funds to be provided to the Centre, as well as

objectives, performance targets and key performance outcomes.

Clause 667 requires the Centre Board, at the direction of the Minister, to

prepare and submit a strategic plan for the operation of the Centre

every 3 years.

Division 5—Reports

Clause 668 requires the Centre Board to submit to the Minister a report of its

activities, strategic plan, reasonable efforts to comply with the

mental health and wellbeing principles and other information as

required by the Minister after the end of each financial year.

Clause 669 requires the Centre Board to report to the Minister and Health

Secretary any significant decisions of the Centre Board and any

issues of public concern or risk that affect, or may affect, the

Centre.

Clause 670 allows the Minister to make a written request for the Centre

Board to report on its activities, compliance with its duties and

obligations, implementation of its strategic plan and any other

matters as determined by the Minister.

Division 6—Information collection

Clause 671 enables the Centre, to the extent necessary to conduct research in

the field of mental health and wellbeing, to collect health

information, personal information, identifiers and unique

identifiers about an individual from specified bodies.

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Part 15.2—General

Clause 672 requires the Minister to cause a review to be conducted of the

first 5 years of operation of Divisions 2 to 4 of Part 15.1 of the

Bill, other than in relation to clauses 663 and 667. The report of

the review must be laid before each House of the Parliament

within 12 months after the fifth anniversary of the

commencement of the Victorian Collaborative Centre for

Mental Health and Wellbeing Act 2021.

Chapter 16—Youth Mental Health and Wellbeing Victoria

The Royal Commission found serious issues affecting young Victorians in

the mental health system and advised that substantial reforms were needed to

ensure Victoria's future youth mental health and wellbeing system can serve

the needs of young people.

The issues highlighted by the Royal Commission included—

• the significant impact of suicide which is a leading cause of

death among Victorians aged 15 to 25 years old;

• mental illness as a key cause of disability among young people;

• the impacts of COVID-19 through rising unemployment,

unprecedented interruptions to education and social networks;

and

• systemic barriers to young people accessing area mental health

services.

The Royal Commission also noted the disproportionate impacts which mental

health issues can have on young people, noting as one of the key themes in its

final report that younger people are adversely affected in terms of seeking to

participate in higher education and employment, forming relationships and

setting out on adult life. It argued there is a strong case for investment in,

and attention to, the mental health and wellbeing of young people.

In the year since the Royal Commission delivered its final report, there is

increasing evidence of the ongoing impacts of the COVID-19 pandemic on

the mental health and wellbeing of young people, which have given rise to a

need to build on the recommendations and commentary of the Royal

Commission to provide system-wide specialised innovation and leadership in

the youth mental health and wellbeing system, and collaborative mechanisms

to give agency to the voices of young Victorians on mental health and

wellbeing issues.

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The Bill establishes a new statutory entity, Youth Mental Health and

Wellbeing Victoria (YMHWV) to provide system leadership in youth mental

health and wellbeing in Chapter 16.

Building a foundation for future reforms recommended by the Royal

Commission, YMHWV will give strategic advice, develop service and

strategic partnerships and oversee certain services to improve mental health

and wellbeing services for young people in Victoria. In performing its

functions, YMHWV must have regard to the needs and views of persons with

lived experience of mental illness or psychological distress, diverse

communities, providers of mental health services and the broader service

system for young person

YMHWV will also oversee youth mental health and wellbeing services

delivered by contracted service providers and declared operators under the

new Bill. There will not be a duplication of oversight functions of the Health

Secretary or the Mental Health and Wellbeing Commission. The bespoke

operators in scope for YMHWV oversight excludes those already providing

mental health services for young people under the regulatory framework of

the Health Services Act 1988, such as public hospitals and public health

services.

Inclusion of an entity established to address the issues of a particular cohort

is not unique for the Bill which includes Forensicare (the Victorian Institute

of Forensic Mental Health) which is specifically dedicated to the provision of

forensic mental health and related services, education and research in the

field of forensic mental health.

The YMHWV board will include representation by at least 2 young people

with lived experience of mental illness or psychological distress, and one

young person with lived experience as a carer, family member or supporter of

persons with mental illness or psychological distress. In addition, it will

draw from the non-statutory Youth Mental Health and Wellbeing Council

(Youth Council), to be established in collaboration with Safer Care Victoria,

to ensure that lived experience is at the centre of how it delivers its key

functions.

The board of YMHWV will oversee declared operators under the Bill in line

with service level agreements, creating an important link between the

YMHWV Board and specialist service delivery, research and innovation.

This model can accommodate future reforms and system growth, allowing

for additional operators and service agreements where needed.

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YMHWV will provide oversight of service quality and safety and will have

the ability to ensure continuity of care in the unlikely event of service failure,

including by the appointment of an administrator to step into the shoes of an

operator. The proposed model will ensure declared operators are also

designated mental health services under the Bill, allowing provision of a full

suite of voluntary and compulsory services under the Bill, with oversight by

the Commission and the chief psychiatrist.

The Board of YMHWV will work closely with the Victorian Collaborative

Centre for Mental Health and Wellbeing (VCC)—including through one

Board member from the VCC sitting on the Board of YMHWV.

The new entities will work collaboratively to identify and promote

opportunities to increase collaborative translational research between

multiple organisations and multidisciplinary experts, and people with lived

experience, to improve the mental health and wellbeing of young people

across Victoria.

Part 16.1—Youth Mental Health and Wellbeing Victoria

Division 1—Establishment, functions and powers

Clause 673 establishes Youth Mental Health and Wellbeing Victoria as a

body corporate with an official seal and the normal powers of a

body corporate.

Clause 674 provides for the official seal of Youth Mental Health and

Wellbeing Victoria to be kept and used as authorised by Youth

Mental Health and Wellbeing Victoria and provides for the courts

to take judicial notice of the seal affixed to a document and to

presume, until the contrary is proved, that it was duly affixed.

Clause 675 provides that Youth Mental Health and Wellbeing Victoria

represents the Crown.

Clause 676 sets out the functions of Youth Mental Health and Wellbeing

Victoria which are—

• providing strategic advice and recommendations to the

Minister, Chief Officer, the Health Secretary, the Centre

and the regional mental health and wellbeing boards on

youth mental health and wellbeing issues and the

provision of youth mental health and wellbeing

services; and

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• consulting and collaborating on youth mental health and

wellbeing issues and the provision of youth mental

health and wellbeing services with specified persons

and bodies; and

• through collaboration with the youth mental health and

wellbeing sector, workforce development organisations

and academic research institutes and entities, advising

on, promoting and supporting the coordination of

workforce capability and growth activities in the field of

youth mental health and wellbeing, promoting,

commissioning, analysing, and coordinating research in

the field of mental health and wellbeing and developing

and implementing or contributing to the development or

implementation of research strategies to translate

research into practice in the field of youth mental health

and wellbeing; and

• entering into service agreements for the provision of

youth mental health and wellbeing services and other

services to young people and for the provision of other

services related to its functions and overseeing the

services provided.

Clause 677 provides that Youth Mental Health and Wellbeing Victoria has

the power to do all things that are necessary or convenient to be

done for, or in connection with, or incidental to, the performance

of its functions. This includes the power to enter into agreements

and arrangements for the provision of youth mental health and

wellbeing services and other services related to its functions and

impose fees and charges for the provision of services, and seek

and accept funds from any person for the purposes of performing

its functions.

The clause provides that in performing its functions and

exercising its powers, Youth Mental Health and Wellbeing

Victoria must have regard to the needs and views of persons with

lived experience of mental illness or psychological distress,

diverse communities, providers of mental health services, the

broader service system for young person and the youth mental

health and wellbeing workforce. Youth Mental Health and

Wellbeing Victoria must also have regard to the need to ensure

that it uses its resources in an effective and efficient manner and

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continuously strives to improve the quality and safety of the

services it provides and promote innovation.

Clause 678 requires Youth Mental Health and Wellbeing Victoria, in

performing a function or duty or exercising a power under this

Bill, to give proper consideration to the mental health and

wellbeing principles and ensure that decision making processes

are transparent, systematic and appropriate, and consider ways to

promote good mental health and wellbeing.

Division 2—The Youth Mental Health and Wellbeing Board

Clause 679 provides that Youth Mental Health and Wellbeing Victoria has a

board of directors.

The clause provides that the Youth Mental Health and Wellbeing

Board (Board) is responsible for the management of Youth

Mental Health and Wellbeing Victoria setting its strategic

direction and establishing a governance framework for Youth

Mental Health and Wellbeing Victoria and monitoring

compliance with the framework.

The clause provides that the Board may exercise the powers of

Youth Mental Health and Wellbeing Victoria.

Clause 680 provides for the membership of the Board which will be

constituted by not less than 7 and not more than 9 other directors.

Each director will be appointed by the Governor in Council on

the recommendation of the Minister. The directors of the Board

must include—

• at least 2 young persons who identify as experiencing,

or as having experienced, mental illness or

psychological distress and who have an understanding

of the diverse experiences and needs of people living

with mental illness or psychological distress; and

• one young person who identifies as caring for or

supporting, or having cared for or supported, a person

with mental illness or psychological distress and who

has an understanding of the diverse needs of families,

carers and supporters of people living with mental

illness and psychological distress; and

• one member of the Centre Board.

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Subclause (3) sets out matters the Minister must have regard to in

making a recommendation.

Clause 681 sets out the functions of the Board of Youth Mental Health and

Wellbeing Victoria.

Clause 682 provides for a director of the Board to receive remuneration, and

allowances fixed by the Governor in Council and any reasonable

expenses incurred in holding office.

Clause 683 provides that a director of the Board holds office for a period not

exceeding 3 years and is eligible for re-appointment but may not

hold office for more than 9 consecutive years. A director may

only hold office for more than 9 consecutive years where the

Minister is satisfied that exceptional circumstances exist.

Clause 684 sets out the process for resignation of a director of the Board.

Clause 685 sets out the process for removal from office of a director of the

Board.

Clause 686 allows the directors of the Board to jointly delegate, by

instrument, any function or power to any person referred to in

clause 692.

Clause 687 makes provision for the validity of a decision of the Board even

though there is a defect or irregularity in or in connection with

the appointment of a director or a vacancy in the office of a

director.

Clause 688 provides for the appointment and resignation of the chairperson

of the Board.

Clause 689 provides that the Board may regulate its own proceedings,

subject to the following—

• the quorum is half the appointed directors of the Board

plus one additional appointed director;

• the chairperson has an additional or casting vote in the

event of an equality of votes.

Clause 690 provides that the Board may establish committees to assist the

Board in performing any of its functions or provide expert advice

on any matter relating to the Board's functions.

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Clause 691 allows the Minister to issue, vary or revoke guidelines for or with

respect to the role and procedure of the Board and how the Board

carries out it functions, duties and responsibilities.

Clause 692 provides for there to be employed under Part 3 of the Public

Administration Act 2004, any staff necessary to enable Youth

Mental Health and Wellbeing Victoria or the Board to carry out

its functions or powers.

The clause provides that Youth Mental Health and Wellbeing

Victoria may enter into agreements or arrangements for the use

of any staff of a Department, statutory authority or other public

sector body.

The clause also enables Youth Mental Health and Wellbeing

Victoria to engage a person to assist it or the Board to carry out

its functions or powers under the Bill.

Division 3—Delegates

Clause 693 allows the Minister to appoint a maximum of 2 delegates to the

Board to assist the Board carry out its functions or improve the

performance of Youth Mental Health and Wellbeing Victoria.

Clause 694 sets out the term of a delegate appointed to the Board.

Clause 695 sets out the process for resignation and revocation of appointment

of a delegate of the Board.

Clause 696 sets out the functions of a delegate of the Board.

Clause 697 requires the Board to permit a delegate to attend any meetings of

the Board or its committees and provide a delegate with

information or a copy of any notice or other document provided

to the directors of the Board or to members of any of the Board's

committees

Part 16.2—Directions, guidelines, statements of priorities,

strategic plans and service agreements

Clause 698 allows the Minister to issue a written direction (to be published in

the Government Gazette) to Youth Mental Health and Wellbeing

Victoria on any matter that the Minister is satisfied is necessary.

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Youth Mental Health and Wellbeing Victoria must comply with

any direction issued by the Minister. However, any act or

decision of the Board is not invalid because of a failure to

comply with a direction.

A declared operator must take all reasonable steps to assist Youth

Mental Health and Wellbeing Victoria to comply with the

Minister's directions to the extent that the directions relate to the

services provided by the declared operator.

Clause 699 requires the Board, at the direction of the Minister, to prepare and

submit a strategic plan for the operation of Youth Mental Health

and Wellbeing Victoria.

Clause 700 provides that the Board must prepare, in consultation with the

Health Secretary, a proposed statement of priorities for Youth

Mental Health and Wellbeing Victoria for approval by the

Minister. If the Board and Minister fail to agree on a statement

of priorities before 1 October in each year, the Minister may

make the statement of priorities for Youth Mental Health and

Wellbeing Victoria for the relevant financial year.

The clause specifies what must be included in a statement of

priorities. It must set out the services to be provided under

service agreements with Youth Mental Health and Wellbeing

Victoria and the funds to be provided to Youth Mental Health

and Wellbeing Victoria as well as the objectives, priorities and

key performance outcomes amongst other matters.

The clause provides that the statement of priorities may be varied

at any time by agreement between the Board and Minister. If the

Board and the Minister fail to agree on a proposed variation

within 28 days after it is proposed, the Minister may vary or

decline to vary the statement of priorities.

Clause 701 requires the Board to notify the Minister and Health Secretary as

soon as practicable about any issues of public concern or risk that

affect, or may affect, Youth Mental Health and Wellbeing

Victoria.

Clause 702 empowers the Health Secretary to direct Youth Mental Health

and Wellbeing Victoria about certain matters relevant to the

Health Secretary's functions under this Bill, and requires Youth

Mental Health and Wellbeing Victoria to comply with the

direction. It also requires a declared operator to take all

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reasonable steps to assist Youth Mental Health and Wellbeing

Victoria to comply with any direction issued by the Health

Secretary.

Clause 703 specifies the criteria that Youth Mental Health and Wellbeing

Victoria must consider prior to entering into a service agreement

with a mental health and wellbeing service provider. This

includes consideration of the quality and safety of services and

any arrangements made by a provider to make their services

informed by the lived experience of young people.

Part 16.3—Declared operators providing youth mental health and

wellbeing services

Division 1—Declared operators

Clause 704 provides that the Governor in Council, on the recommendation of

the Minister, may by notice published in the Government

Gazette, declare an entity specified in subclause (2) to be a

declared operator for the purposes of providing youth mental

health and wellbeing services under a service agreement with

Youth Mental Health and Wellbeing Victoria.

The clause provides that a declaration may specify a geographic

area in respect of which a declared operator may provide youth

mental health and wellbeing services and impose any other

conditions the Minister considers appropriate.

An entity ceases to be a declared operator if the Minister revokes

the declaration or the service agreement the operator has entered

into with Youth Mental Health and Wellbeing Victoria is

terminated.

Clause 705 provides at subclause (1) that an entity specified in clause

704(2)(b) that is declared to be a declared operator is also a

designated mental health service.

An entity specified in subclause (1) ceases to be a designated

mental health service if the entity ceases to be a declared operator

in accordance with clause 704(4).

Clause 706 provides that a service agreement between Youth Mental Health

and Wellbeing Victoria and a declared operator may require the

declared operator to carry out functions set out in the clause.

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Clause 707 provides that the Board and declared operator must prepare a

statement of priorities for each financial year that is consistent

with the statement of priorities prepared by the Board under

clause 700. If the Board and declared operator fail to agree on a

statement of priorities before 1 October, the Board may make a

statement of priorities for the relevant financial year.

The clause specifies what must be included in a statement of

priorities. It must set out the services to be provided under the

service agreement between Youth Mental Health and Wellbeing

Victoria and the declared operator and the funds to be provided to

the declared operator under the agreement as well as the

objectives, priorities and key performance outcomes amongst

other things.

Division 2—Suspension of services or appointment of

administrator

Clause 708 authorises the Minister to direct that the admission of patients, or

a class of patients, to a service or services provided by a declared

operator be suspended or recommend to the Governor in Council

that an administrator of the declared operator be appointed in

relation to services provided under the service agreement with

Youth Mental Health and Wellbeing Victoria.

The Minister may only take these actions where the Minister is

satisfied, on the advice of the chief psychiatrist or the Chief

Officer that the declared operator is inefficiently or

incompetently managed in relation to the services it provides

under the service agreement, is failing to provide effective, safe,

patient-centred and appropriate youth mental health and

wellbeing services or has failed to comply with the service

agreement.

Clause 709 authorises the Minister to direct that the declared operator

suspend admissions of patients or any class of patients to any

youth mental health and wellbeing service if the Minister decides

that admissions should be suspended.

The clause requires the Minister consider any oral or written

submissions of the declared operator within 7 days of the

direction and either withdraw or confirm the suspension by

written notice to the declared operator.

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Clause 710 provides that the Governor in Council may, on the

recommendation of the Minister and by Order published in the

Government Gazette, appoint a person as administrator of a

declared operator in relation to its provision of youth mental

health and wellbeing services under a service agreement with

Youth Mental Health and Wellbeing Victoria.

The clause sets out the role and functions and powers of the

administrator and sets out the process for the extension and

ending of the administration.

An administrator is taken to be the board of directors of the

declared operator and the designated mental health service for the

purpose of the declared operator providing youth mental health

and wellbeing services under the service agreement.

The clause provides that the Minister must not make a

recommendation unless the Minister has given reasonable notice

in the circumstances to the declared operator specifying in

writing the ground on which the Minister intends to make a

recommendation to appoint an administrator and that the declared

operator may apply in accordance with clause 712 for review of

the Minister's decision to make a recommendation to appoint an

administrator.

Clause 711 provides that an administrator may recommend that the service

agreement between the declared operator and Youth Mental

Health and Wellbeing Victoria be terminated. On the making of

such a recommendation, Youth Mental Health and Wellbeing

Victoria may terminate the services agreement with the declared

operator.

Clause 712 provides a right for a declared operator to apply to VCAT for a

review of a decision by the Minister to recommend the

appointment of an administrator under clause 710. The clause

sets out the time frames in which an application for review must

be made by the declared operator.

Clause 713 declares that the sections relating to the appointment of an

administrator are to be Corporations legislation displacement

provisions for the purposes of section 5G of the Corporations Act

in relation to Chapter 5 of that Act.

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Part 16.4—General

Clause 714 enables Youth Mental Health and Wellbeing Victoria, to the

extent necessary to perform its functions, to collect health

information, personal information, identifiers and unique

identifiers about an individual from specified bodies.

Clause 715 provides that a mental health and wellbeing service provider

providing youth mental health and wellbeing services under a

service agreement with Youth Mental Health and Wellbeing

Victoria must disclose any information, including personal

information or health information relating to the provision of

those services in accordance with any reasonable written

direction given by Youth Mental Health and Wellbeing Victoria

to the mental health and wellbeing service provider. It is an

offence not to comply with the direction. The maximum penalty

for contravention of this offence is 300 penalty units for a body

corporate and 60 penalty units for a natural person.

Clause 716 provides that Youth Mental Health and Wellbeing Victoria may

authorise any person with the qualifications, skills or expertise

which in the opinion of the board are appropriate, to carry out an

audit to determine whether a mental health and wellbeing service

provider is carrying its functions as required under any service

agreement it has entered with Youth Mental Health and

Wellbeing Victoria.

Youth Mental Health and Wellbeing Victoria must determine

terms of reference for the audit and the terms and conditions on

which the audit is to be carried out. The auditor must give a

written report of their results to Youth Mental Health and

Wellbeing Victoria.

The clause requires Youth Mental Health and Wellbeing Victoria

to give the mental health and wellbeing service provider written

notice of the audit, including the name of the auditor and the

terms of reference for, and the terms and conditions on which, the

auditor will carry out the audit.

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Clause 717 provides the powers of an auditor appointed to audit a mental

health and wellbeing service provider. The clause makes it an

offence for a person to—

• refuse or fail to give full and true answers to questions

asked by an auditor, to the best of that person's

knowledge;

• to hinder or obstruct an auditor in the performance or

exercise of the auditors powers.

The maximum penalty for each of these offences is 60 penalty

units.

The clause provides that an answer to a question by an auditor is

not admissible in evidence in any criminal proceedings other than

proceedings under this clause.

Clause 718 sets confidentiality requirements for information acquired during

an audit.

The clause prohibits the use, disclosure or making of a record of

the information, except in the performance of a function under

the Bill relating to the audit. The prohibition applies to any

person who is or has been an auditor. The maximum penalty for

this offence is 100 penalty units.

The clause allows the auditor to record, use or disclose

information from an audit or review, despite the prohibition, if

the disclosure if made to a court in the course of a criminal

proceeding or with the consent of the person to whom the

information relates (or if that person has died, the senior available

next of kin of that person).

Clause 719 provides that in its report of operations for a financial year under

Part 7 of the Financial Management Act 1994, Youth Mental

Health and Wellbeing Victoria must include any prescribed

matters.

Chapter 17—General

Part 17.1—Disclosure of health information

The Royal Commission recommended that the new legislation specify and

clarify the ways in which information about mental health and wellbeing may

be collected and used and to foster a consent-driven approach to information

sharing.

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Recommendations also proposed improving and clarifying standards to guide

the sharing of appropriate information with families, carers and supporters;

ways for consumers to contribute to, and access, information held about

them.

Chapter 17 of the Bill seeks to simplify and clarify provisions existing in the

Mental Health Act 2014, with the aim of enhancing consumer autonomy;

better involving families, carers and supporters; and enabling more integrated

service delivery.

The Bill includes new principles for the disclosure, collection and use of

personal information and health information and a new ground for complaint

to the Commission if these principles are not followed by a mental health and

wellbeing service provider.

The Bill seeks to more clearly set out the circumstances where health

information may be disclosed by a service provider either with a person's

consent or without consent. The Royal Commission found that provisions

allowing information to be shared with families, carers and supporters with

the consent of a person were not well understood, resulting in barriers for

carers accessing information. To improve this, the Bill introduces a new

positive duty for providers to share information, with consumer consent, at

defined points, such as admission or discharge from an inpatient service.

To support integrated service delivery, assist a person to transition between

service providers or facilitate the provision of emergency services, the Bill

creates new powers to allow for personal information and health information

to be shared between providers. A person can elect that their information not

be shared in these circumstances except in relation to sharing information

with an emergency service provider, for example, an ambulance service.

The Royal Commission set expectations that mental health services will

provide opportunities for consumers to contribute to the information held

about them and gain easy access to it; and recommended a new consumer

portal to allow consumers to authorise sharing of information with families,

carers and supporters. The new portal is expected to come into operation in

2026.

Without waiting for the development of the consumer portal, the Bill will

introduce a new power to enable a person to make a health information

statement in relation to the health information held about them by a provider

in circumstances where the provider has refused to correct information under

freedom of information legislation or the relevant health privacy principle.

This is an important step to support the autonomy and agency of people using

mental health and wellbeing services and is in addition to existing permission

for people to contribute to their record already occurring in services.

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The information sharing provisions within the Bill do not override

information sharing enabled in other Acts, including those which allow for

information sharing without consent to assess and manage risk. These will

continue in accordance with current legislative arrangements.

Division 1—Information sharing principles

Clause 720 stipulates that Part 17.1 of the Bill sets out the information

sharing principles.

Clause 721 requires an entity that makes a decision, performs a function or

exercises a power related to the collection, use or disclosure of

health information or personal information under the Bill to give

proper consideration to the information sharing principles. It is

intended that these obligations be interpreted in the real-world

context in which they will arise. It is not envisaged that the

proper consideration exercise will always be informed by legal

advice, nor that it be a sophisticated or formulaic process, but the

consideration must be treated as more than a token or formality.

Clause 722 sets out the disclosure, collection and use of mental health

information principle. A key focus of this principle is to enhance

a person's ability to access, understand and self-manage their

information, and improve a person's experience of engaging with

the mental health and wellbeing system.

Clause 723 provides that upholding the dignity of a person is a paramount

principle to be considered by a service provider in the recording

of personal information and health information. This requires

information to be recorded accurately and respectfully.

Clause 724 provides that health information and personal information of

Aboriginal and Torres Strait Islander people is to be treated in a

manner that promotes self-determination and is culturally safe,

acknowledging connections to family and community.

Clause 725 requires information to be provided, so far as reasonably

practicable, in a format that is accessible and acknowledges the

individual needs of people in relation to several factors, including

age, disability, neurodiversity, ethnicity, sex and gender identity

Clause 726 requires reasonable steps to be taken to ensure that any

information relating to a person receiving mental health and

wellbeing services that is recorded or shared is accurate, relevant

and up to date.

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Division 2—Electronic health information system

Clause 727 refers to the existence of an electronic health information system

which is maintained by and under the oversight of the Health

Secretary. The clause outlines the purposes of the electronic

health information system which include to—

• maintain the records of a person who receives mental

health and wellbeing services from a designated mental

health service or prescribed mental health and wellbeing

service provider; and

• enable access to and sharing of information between

persons authorised or permitted to access and share

information under the Bill.

The clause empowers the Health Secretary to do or require

certain things to be done in order to maintain and oversee the

electronic health information and further the purposes of the

electronic health information system.

Clause 728 provides that a person employed or engaged by a mental health

and wellbeing service provider or a prescribed emergency service

provider may enter a person's health information into the

electronic health information system. "Emergency service

provider" is defined in clause 3 of the Bill to mean Ambulance

Service Victoria and any other prescribed entity.

The clause provides that a person must not collect or use, or

attempt to collect or use, health information from the electronic

health information system unless the collection or use of the

health information is reasonably required by a specified body

(including a mental health and wellbeing service provider) for the

purposes of providing mental health and wellbeing services to a

person to whom the information relates.

Division 3—Disclosure of health information

Clause 729 allows a mental health and wellbeing service provider to disclose

the health information of a person to another person or entity if

the person in respect of whom the information relates consents to

the disclosure. Where consent to disclosure under this clause is

withdrawn by the person, which can be done at any time, and the

withdrawal has been communicated to the service provider, the

mental health and wellbeing service provider must ensure the

health information of the person held by the provider is no longer

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disclosed to another person or entity except in accordance with

the Bill.

Clause 730 prohibits specified persons from disclosing the health information

of a person to an entity without that person's consent, subject to

subclause (2). The maximum penalty for contravention of this

offence is 60 penalty units.

Subclause (2) allows disclosure of health information by a mental

health and wellbeing service provider or a person specified in

subclause (1)(b), (c), (d) or (e) in specified circumstances.

The specified circumstances include where the disclosure—

• is reasonably necessary for the mental health and

wellbeing service provider to perform functions or

exercise powers under the Bill or any other Act; or

• is permitted by Health Privacy Principles 2.1 or 2.2(a),

(f), (g) or (k) or 2.5; or

• is made to a parent of the person and the person is under

16 years of age; or

• is made to a psychiatrist giving a second psychiatric

opinion for the purpose of the psychiatrist giving the

second opinion; or

• is reasonably required in connection with the

performance of a function or duty or the exercise of a

power under the Bill; or

• is made to a guardian of the person and the disclosure is

reasonably required in connection with the performance

of a duty or the exercise of a power by the guardian; or

• is made to a support person (within the meaning of the

Medical Treatment Planning and Decisions

Act 2016) of the person to whom the health information

relates, and the disclosure is reasonably required in

connection with the performance of a duty or the

exercise of a power by the support person; or

• is made in general terms to family, a carer or supporter

of a person and the disclosure is not contrary to the

views and preferences expressed by the person that the

health information must not be disclosed to family, a

carer or supporter. This permitted disclosure is subject

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to clause 31 of the Bill which prohibits the disclosure of

information where there may be a risk of family

violence or serious harm to the person subject of the

disclosure.

Clause 731 provides that a person may consent to the disclosure of some or

all of their health information to family, a carer or a supporter at

key points of care, and a mental health and wellbeing service

provider must disclose information in accordance with any such

consent given, except where clause 732 applies. The key points

of care specified in the Bill are following admission to or before

discharge from a bed -based service and following performance

of a function specified by the Health Secretary in a notice

published on the Department's website.

This clause is not intended to limit disclosures with consent that

may happen outside of the points of care specified in the clause.

Clause 732 specifies circumstances in which, notwithstanding the

requirement to disclose information in accordance with consent

provided under clause 731, a mental health and wellbeing service

provider may refuse to disclose the health information of a

person to family, a carer or a supporter. This includes where the

disclosure—

• poses a threat to the life or health of any person; or

• may unreasonably impact on the privacy of others; or

• is unlawful or inconsistent with a requirement or

authorisation by or under law; or

• may prejudice an investigation of unlawful activity or a

law enforcement function by or on behalf of law

enforcement agency; or

• is likely to cause damage to the security of Australia in

the course of a law enforcement agency performing a

function.

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Division 4—Information sharing between mental health and

wellbeing service providers and specified service providers

Clause 733 specifies the circumstances in which a mental health and

wellbeing service provider may collect, use and disclose the

personal information and health information of a person held by

the service with a "specified service provider". This includes

where the mental health and wellbeing service provider consider

the disclosure is reasonably necessary to assist in the transfer of

the person between mental health and wellbeing service

providers and specified service providers, or to ensure integrated

services are provided to the person by mental health and

wellbeing service providers and specified service providers

providing services to the person. Specified service provider is

defined in clause 3 of the Bill to mean—

• the provider of alcohol and drug treatment services

funded by the State; or

• the provider of public or community housing services

funded by the State; or

• a prescribed service provider or entity.

The clause requires a mental health and wellbeing service

provider to inform a person who is receiving services from the

provider that the provider may disclose the personal information

and health information of a person with specified service

providers providing services to the person unless the person

elects that the information not be disclosed. If the person elects

to not have their personal information and health information

disclosed, then the mental health and wellbeing service provider

must keep a written record of that election.

Clause 734 allows a mental health and wellbeing service provider to share

health information with an emergency service provider for the

purpose of facilitating the provision of an emergency service to a

person or performing a function under the Bill. Emergency

service provider is defined in clause 3 of the Bill to mean

Ambulance Service-Victoria and any other prescribed entity.

This clause applies despite an election by a person under clause

733(4) that their personal information or health information not

be disclosed.

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Division 5—Offences

Clause 735 prohibits a person from knowingly accessing the electronic health

information system or using or disclosing health information or

personal information on the system without authorisation under

the Bill. The maximum penalty for contravention of this offence

is 300 penalty units for a body corporate and 60 penalty units for

a natural person.

Clause 736 prohibits a person from knowingly accessing, using or disclosing

information on the electronic health information system in a way

that is inconsistent with their authorisation. The maximum

penalty for contravention of this offence is 300 penalty units for a

body corporate and 60 penalty units for a natural person.

Clause 737 prohibits a person from knowingly or intentionally damaging,

destroying or removing health information or personal

information from the electronic health information system

without authorisation under the Bill or regulations. The

maximum penalty for contravention of this offence is 300 penalty

units for a body corporate and 60 penalty units for natural

persons.

Clause 738 prohibits a person from accessing, using, disclosing, damaging or

destroying any health information or personal information held

by a mental health and wellbeing service provider without lawful

authority except—

• where the information is accessed, used, disclosed,

damaged or destroyed for the purpose of, or in

connection with, the performance of a function or duty

or the exercise of power under the Bill or any other Act;

or

• with the written consent of the person to whom the

information relates; or

• as required by a court or tribunal in relation to a

criminal proceeding.

The maximum penalty for this offence is 300 penalty units for a

body corporate and 60 penalty units for a natural person.

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Part 17.2—Health information statements

Clause 739 requires a mental health and wellbeing service provider who

refuses to amend or correct a person's health information

following a request under section 39 of the Freedom of

Information Act 1982 or in accordance with Health Privacy

Principle 6 to inform the person by written notice of the decision

and the reasons for the decision, and that the person may make a

health information statement.

Clause 740 provides that a person who receives written notice under

clause 739 may make a health information statement in relation

to the health information held by the mental health and wellbeing

service provider.

Subclause (2) provides that a health information statement must

be—made no later than 12 months after a service provider has

refused to amend or correct the person's health information

following a request; made in writing; and given to the service

provider who holds the health information of the person and that

refused the person's request for correction.

Subclause (3) requires the mental health and wellbeing service

provider to accept and include on the person's health information

record a health information statement given in accordance with

subclause (2), unless the statement does not relate to the

information that was the subject of the request under section 39

of the Freedom of Information Act 1982 or in accordance with

Health Privacy Principle 6.

Part 17.3—Notification of reportable deaths

Clause 741 provides that the person in charge of a clinical mental health

service provider must ensure that the chief psychiatrist is notified

in writing of the death of any person receiving mental health

services from the clinical mental health service provider that is a

reportable death (within the meaning of section 4 of the

Coroners Act 2008) as soon as practicable after the person in

charge becomes aware of the death.

Subclause (2) provides the procedural requirements for a notice

under subclause (1).

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Clause 742 requires an authorised psychiatrist, by written notice, to advise

the Justice Secretary, the Health Secretary or the Chief

Commissioner of Police (whoever is relevant to the

circumstances) of the death of any security patient who receives

treatment from the designated mental health service.

A notice under this clause must specify the name of the deceased

and date of death.

The clause also requires an authorised psychiatrist to advise the

Health Secretary by written notice of the death of any forensic

patient who receives treatment from the designated mental health

service.

Part 17.4—Mental health and wellbeing surcharge

Delivering on a Royal Commission interim report recommendation that

government introduce a new revenue mechanism to provide additional

funding for mental health services, the State Taxation and Mental Health

Acts Amendment Act 2021 was passed in 2021 to introduce the mental

health and wellbeing surcharge, which came into operation on 1 January

2022.

The Bill will re-enact these provisions to provide for ongoing appropriation

of the Consolidated Fund to enable equivalent funding to the surcharge to be

spent on the provision of outputs that are consistent with and promote the

objectives of the Bill and the mental health and wellbeing principles. The

Bill will also require that the Chief Officer report on the surcharge as part of

the annual report on mental health and wellbeing services.

Clause 743 appropriates the Consolidated Fund to the extent necessary to

enable amounts equal to the amounts credited to the Consolidated

Fund as the mental health and wellbeing surcharge to be spent on

the provision of outputs that are consistent with and promote the

objectives of the Bill and the mental health and wellbeing

principles.

This clause allows funds credited to the Consolidated Fund as the

mental health and wellbeing surcharge under the Mental Health

Act 2014 as in force immediately before its repeal to be spent on

the provision of outputs consistent with and which promote the

objectives of the Bill and the mental health and wellbeing

principles.

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Part 17.5—Miscellaneous provisions

Division 1—General

Clause 744 empowers the Health Secretary, Mental Health Tribunal, and the

Mental Health and Wellbeing Commission and a police officer to

commence proceedings in respect of certain offences against the

Bill or the regulations made under the Bill.

Clause 745 provides that if a registered medical practitioner has performed

an examination for the purposes of the Bill and they are not

entitled to receive payment for the provision of medical services,

the registered medical practitioner may apply to the Health

Secretary for payment.

Clause 746 prohibits a person from giving information, preparing or

producing a document or making a statement required under the

Bill (other than under Chapters 7 and 9 of the Bill which relate to

the Mental Health Tribunal and Mental Health and Wellbeing

Commission respectively) that the person knows or believes to be

false or misleading. The maximum penalty for contravention of

this offence is 300 penalty units for a body corporate and

60 penalty units for a natural person.

The clause provides that it is a defence if the accused can show

that at the time of the offence the accused believed on reasonable

grounds that the information, document or statement was true or

was not misleading.

Clause 747 prohibits a person from destroying or damaging a record required

to be kept in accordance with the Bill or the regulations without

lawful authority. The maximum penalty for this offence is

300 penalty units for a body corporate and 60 penalty units for a

natural person.

Clause 748 preserves the privilege against self-incrimination. Clause 348

protects a natural person by allowing them to refuse or fail to

give information or do any other thing that is required to be done

under the Bill if the information or doing the other thing would

tend to incriminate the person.

Clause 749 provides that the validity of an order (other than an order made

by the Mental Health Tribunal) or any other document made or

prepared under the Bill is not affected by an error unless the error

relates to the grounds on which the order or document was made

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and proper grounds do not exist for making the order or

document or, as a result of the error, does not comply with a

mandatory requirement of the Bill relating to the making of the

order or document.

Clause 750 provides that an appointment or delegation of power is not

invalid only because of a defect or irregularity in the form or

process of the appointment or delegation. This clause does not

apply to an appointment or delegation made under Chapter 7 of

the Bill (which relates to the Mental Health Tribunal).

Clause 751 provides that a person must not exercise powers of perform

functions or duties in respect of another person if the person

would have an actual or perceived conflict of interest.

Clause 752 provides when notices or other documents served under this Bill

are taken to have been given.

Clause 753 exempts a person employed or engaged by a mental health and

wellbeing service provider who discloses personal information or

health information under the Bill or the regulations in good faith,

and in the reasonable belief that the disclosure is in accordance

with the Bill or the regulations, from personal liability for any

loss, damage or injury suffered as a result.

Subclause (2) provides that any liability for any loss, damage or

injury suffered as a result of the disclosure of personal

information or health information in good faith, and in the

reasonable belief that the disclosure is in accordance with the Bill

or the regulations that, but for subclause (1) would attach to the

person instead attaches to the State.

Division 2—Codes of Practice

Clause 754 provides that the purpose of a Code of Practice is to provide

practical guidance to any person or body performing functions

and duties or exercising powers under the Bill to promote best

practice. A Code of Practice cannot impose a duty on a person,

create an enforceable legal right or impose any liability or

penalty.

Clause 755 provides that the Health Secretary or Chief Officer may make a

Code of Practice. The Health Secretary and Chief Officer may

consult with other specified entities (for example, the chief

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psychiatrist, a carer support group or a consumer advocacy

group) before making a Code of Practice.

Clause 756 provides that the Health Secretary must publish on the

Department's Internet site the Code of Practice and a notice that

states its date of commencement and where copies may be

obtained.

Clause 757 provides that a Code of Practice may apply, adopt or incorporate

any document, code, standard, rule, specification or method

published by another body.

Division 3—Review of this Act

The Royal Commission recommended that an independent review of the new

legislation be undertaken within 5 to 7 years of enactment. The Royal

Commission describes the considerable impact that mental health legislation

has on human rights, autonomy and dignity, and the importance of regular

review to make sure it is working as intended. The intent of the review—the

terms of reference which will be co-designed—is to ensure that mental health

laws remain contemporary, effective and responsive to the needs and

preferences of consumers, families, carers and supporters.

The Royal Commission specified a number of matters to be considered by the

review, including the role and functions of the Mental Health Tribunal and

the Chief Psychiatrist to ensure these remain appropriate. The alignment of

decision making frameworks for mental health with those for medical

treatment decisions has been brought forward to be part of the independent

review into compulsory treatment criteria.

For certainty, the Bill will require a review of the first 5 years of operation of

the new legislation and require that the Minister ensure that a report of the

independent review is tabled in Parliament no later than 7 years after the Bill

commences.

Clause 758 requires the Minister to cause a review of the operation of the

Bill to be commenced within one year after the fifth anniversary

of the day the Bill came into operation, and to cause a copy of the

report of the review to be laid before each House of the

Parliament no later than 7 years after the Bill came into

operation.

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Division 4—Regulations

Clause 759 provides that the Governor in Council may make regulations for

and with respect to specified matters. The regulations may—

• be of limited or general application; and

• differ according to differences in time, place or

circumstance; and

• confer a discretionary authority or impose a duty on a

specified person or a specified class of person; and

• provide in a specified case or class of case for the

exemption of persons or things from any of the

provisions of the regulations, whether unconditionally

or on specified conditions, and either wholly or to such

extent as is specified; and

• in the case of a regulation made under subclause (1)(f)

prescribing remuneration and allowances for Mental

Health Tribunal members, provide for different classes

of member whether or not those classes are the same as

the classes referred to in Chapter 7 of the Bill; and

• apply, adopt or incorporate, with or without

modification, any matter contained in any document,

code, standard, rule, specification or method formulated,

issued, prescribed or published by any person; and

• impose a penalty not exceeding 20 penalty units for any

contravention of the regulations.

Clause 760 provides the different types of fees which may be imposed by the

regulations, including provision for the reduction, waiver or

refund of fees.

This clause appropriates the Consolidated Fund to the extent

necessary to enable any refund of fees to be paid.

Chapter 18—Repeal, savings and transitional provisions

Part 18.1—Repeals

Clause 761 repeals the Mental Health Act 2014 and the Victorian

Collaborative Centre for Mental Health and Wellbeing

Act 2021.

214

Part 18.2—Savings and transitional provisions

Part 18.2 provides for specific savings and transitional matters that arise as a

result of the enactment of the Bill and the repeal of the Mental Health

Act 2014 and the Victorian Collaborative Centre for Mental Health and

Wellbeing Act 2021. Unless the contrary intention appears, this Part does

not affect the operation of the Interpretation of Legislation Act 1984.

Sections 14 and 16 of the Interpretation of Legislation Act 1984 contain

general saving and transitional provisions that apply on the repeal or re-

enactment of an Act.

This Part also contains a power in clause 783 for the making of regulations

dealing with additional transitional matters, including matters of an

application or savings nature. These regulations can have retrospective effect

to a day not earlier than the Bill's Royal Assent and can apply despite

anything to the contrary in any Act (other than the Bill and the Charter of

Human Rights and Responsibilities).

Clause 762 provides that Part 18 of the Bill, which enables the continuation

of certain persons, things and circumstances provided for under

the Mental Health Act 2014, and the regulations do not affect or

take away from the Interpretation of Legislation Act 1984

unless a contrary intention appears in the legislation.

Clause 763 provides that the Mental Health Tribunal established under

section 152 of the Mental Health Act 2014 continues on and

from the repeal of that Act as if it had been established under

clause 330 of this Bill. This savings provision ensures that the

Mental Health Tribunal is preserved notwithstanding the repeal

by clause 761.

Subclause (2) provides that any application made to the Mental

Health Tribunal under the Mental Health Act 2014 and not

heard or determined on the repeal of that Act may be heard and

determined from the repeal of that Act as if it were an application

under the corresponding provision of this Bill.

Clause 764 provides that the Rules Committee established under section 207

of the Mental Health Act 2014 continues on and from the repeal

of that Act as if it had been established under clause 389 of this

Bill. This savings provision ensures that the Rules Committee is

preserved notwithstanding the repeal by clause 761.

215

Clause 765 preserves the appointment of the chief psychiatrist and authorised

officers appointed under sections 119 and 146 of the Mental

Health Act 2014 and they are taken to have been appointed

under clause 265 or 275 (as the case requires) on and from the

repeal of that Act.

Clause 766 ensures that a reportable death (within the meaning of section 4

of the Coroners Act 2008) that is not reported prior to the

commencement of this Bill is required to be reported to the

Coroner, under clause 741 or in accordance with clause 742,

despite the repeal of sections 348 and 349 of the Mental Health

Act 2014.

Clause 767 provides that despite the repeal of the Victorian Collaborative

Centre for Mental Health and Wellbeing Act 2021, the

Victorian Collaborative Centre for Mental Health and Wellbeing

established under that Act continues on and from that repeal as

the Victorian Collaborative Centre for Mental Health and

Wellbeing under this Bill.

Subclause (2) continues the appointment of members of the

Board of the Victorian Collaborative Centre for Mental Health

holding office under the Victorian Collaborative Centre for

Mental Health and Wellbeing Act 2021 immediately before the

repeal of that Act so that they are taken to be members of the

Centre appointed under this Bill.

Subclause (3) continues a director holding office under the

Victorian Collaborative Centre for Mental Health and

Wellbeing Act 2021 immediately before the repeal of that Act so

that that person is taken to be a director appointed under this Bill

on the same terms and conditions, for the remainder of their

appointment.

Subclause (4) continues the employment of any employees under

the Victorian Collaborative Centre for Mental Health and

Wellbeing Act 2021 immediately before the repeal of that Act so

that that person is taken to be employed by the Centre under this

Bill.

Subclause (5) preserves a person holding office as a member of a

committee of the board of the Victorian Collaborative Centre for

Mental Health and Wellbeing immediately before the repeal of

the Victorian Collaborative Centre for Mental Health and

216

Wellbeing Act 2021 for the balance of their term and on the

same terms and conditions.

Subclause (6) preserves an agreement entered into under the

Victorian Collaborative Centre for Mental Health and

Wellbeing Act 2021 after the repeal of that Act, as an agreement

entered into under clause 646 of this Bill.

Clause 768 provides that the Community Visitors Mental Health Board

established under section 221 of the Mental Health Act 2014

continues on and from the repeal of that Act as if it had been

established under clause 404 of this Bill.

Subclause (2) preserves the appointment of a person holding

office as a community visitor immediately before the repeal of

that Act on the same terms and conditions.

Subclause (3) converts a request to be visited by a community

visitor under section 219 of the Mental Health Act 2014 to a

request under clause 402 of this Bill.

Clause 769 converts a direction under section 16 of the Mental Health

Act 2014 restricting an inpatient's right to communicate to a

direction under clause 54 of this Bill.

Clause 770 converts an advance statement under Division 3 of Part 3 of the

Mental Health Act 2014 to be an advance statement of

preferences in effect under this Bill.

Clause 771 continues the appointment of a nominated support person under

Division 4 of Part 4 of the Mental Health Act 2014 as a

nominated support person under this Bill.

Clause 772 preserves consent to medical treatment under Division 3 of Part 5

of the Mental Health Act 2014 as consent to medical treatment

given under this Bill.

Clause 773 continues a secondary psychiatric opinion report under section 84

of the Mental Health Act 2014 as a report under clause 72, for

the purposes of this Bill.

Clause 774 preserves Part 5 of the Mental Health Act 2014 for—

• any course of electroconvulsive treatment authorised

with the informed consent of a person immediately

before the repeal of that Act; and

217

• a course of electroconvulsive treatment authorised by

the Mental Health Tribunal immediately before the

repeal of that Act.

Clause 775 deems an application made under section 100(2) of the Mental

Health Act 2013 to be an application made under clause 120 of

this Bill if the Mental Health Tribunal, immediately before that

Act was repealed—

• has not started to hear the matter; or

• has started to hear the matter but not determined it.

Subclause (2) deems an approval by the Mental Health Tribunal

of an application for neurosurgery under section 110(2) of the

Mental Health Act 2014 to an approval given under this Bill.

Subclause (3) deems the requirement of a psychiatrist to comply

with section 104 of the Mental Health Act 2014 to a

requirement to comply with clause 123 of this Bill.

Clause 776 converts an authorisation to use bodily restraint on a person

under section 114 of the Mental Health Act 2014 and an

authorisation to use seclusion under section 111 of the Mental

Health Act 2014 to an authorisation under clause 132 of this

Bill.

Clause 777 provides that despite the repeal of section 328 of the Mental

Health Act 2014, the Institute continues on and from the repeal

of that Act as if it had been established under clause 610 of this

Bill.

Subclause (2) continues the position of directors of the Board of

the Institute under section 334 of the Mental Health Act 2014 as

directors of the Institute Board appointed under this Bill.

Clause 778 provides that the electronic health information system referred to

in section 347 of the Mental Health Act 2014 is taken to be the

same electronic health information system established by

clause 727 of this Bill.

Clause 779 provides that an Assessment Order that was made under the

Mental Health Act 2014 and which is in force immediately

before the repeal of that Act continues in force as if it was an

assessment order made under Chapter 4 of the Bill.

218

Clause 780 provides that despite the repeal of section 41 of the Mental

Health Act 2014, if an authorised psychiatrist varied a

community court assessment order to an inpatient court

assessment order and vice versa, and the order is in force

immediately before that repeal, the variation is taken to be a

change of assessment in accordance with clause 170 of this Bill.

Clause 781 provides that a Temporary Treatment Order that was made under

the Mental Health Act 2014 which is in force immediately

before the repeal of that Act continues in force as if it was a

temporary treatment order made under Chapter 4 of the Bill.

Clause 782 provides that a Treatment Order that was made under the Mental

Health Act 2014 which is in force immediately before the repeal

of that Act continues in force as if it was a treatment order made

under Chapter 4 of the Bill.

Clause 783 provides that the Governor in Council may make regulations

containing provisions of a transitional nature, including matters

of an application or savings nature, arising following the

enactment of this Bill.

Subclause (2) provides that regulations made under this clause

may—

• have a retrospective effect to a day not earlier than the

Bill's Royal Assent;

• be of limited or general application;

• differ according to time, place or circumstance;

• exempt entities or classes of entity from regulations

made under this clause;

• leave any matter or thing to be decided by a specified

person or class of person.

Subclause (3) provides that, to the extent to which any provision

of regulations made under this clause are retrospective and take

effect from a date that is earlier that the date of its making, the

regulations do not operate so as—

• to affect in a manner prejudicial to any person (other

than the State or an authority of the State), the rights of

that person existing before the date of its making; or

219

• to impose liabilities on any person (other than the State

or an authority of the State) in respect of anything done

or omitted to be done before the date of its making.

Subclause (4) provides that regulations made under this clause

have effect despite anything to the contrary in any Act (other than

this Bill or the Charter of Human Rights and Responsibilities) or

in any subordinate instrument.

Subclause (5) provides for the automatic repeal of the clause on

the second anniversary of its commencement.

Chapter 19—Consequential amendments and repeal of Chapter

Part 19.1—Consequential amendments

Division 1—Child Wellbeing and Safety Act 2005

Clause 784 amends section 16Y(c)(ii) of the Child Wellbeing and Safety

Act 2005 to reference the prohibited disclosure offence provision

in clause 730 in place of reference to the equivalent provision in

section 346 of the Mental Health Act 2014.

Clause 785 amends section 41A(c)(ii) of the Child Wellbeing and Safety

Act 2005 to reference the prohibited disclosure offence provision

in clause 730 in place of reference to the equivalent provision in

section 346 of the Mental Health Act 2014.

Clause 786 amends references in section 41H(1)(g) of the Child Wellbeing

and Safety Act 2005 to replace reference to the Complaints

Commissioner within the meaning of the Mental Health

Act 2014 with reference to the Mental Health and Wellbeing

Commissioner within the meaning of the Bill.

Clause 787 amends item 31 of Schedule 1 to the Child Wellbeing and

Safety Act 2005 to substitute a reference to the mental health

service provider within the meaning of the Mental Health

Act 2014 with a reference to the mental health and wellbeing

service provider within the meaning of the Bill.

Clause 788 amends item 6 of Schedule 3 to the Child Wellbeing and Safety

Act 2005 to substitute a reference to the mental health service

provider within the meaning of the Mental Health Act 2014

with a reference to the mental health and wellbeing service

provider within the meaning of the Bill.

220

Division 2—Children, Youth and Families Act 2005

Clause 789 repeals and makes changes to definitions in section 3(1) of the

Children, Youth and Families Act 2005.

Subclause (1) amend the definition of information holder to

substitute a reference to the service provider within the meaning

of section 3(1) of the Mental Health Act 2014 with a reference

to the wellbeing service provide within the meaning of

clause 3(1) of the Bill

Subclause (2) updates paragraph (c) in the definition of service

agency in section 3(1) of the Children, Youth and Families

Act 2005 to refer to the mental health and wellbeing service

provider within the meaning of clause 3 of the Bill, rather than

the mental health service provider within the meaning of

section 3(1) of the Mental Health Act 2014.

Clause 790 amends section 40(c)(ii) of the Children, Youth and Families

Act 2005 to reference the prohibited disclosure offence provision

in clause 730 in place of reference to the equivalent provision in

section 346 of the Mental Health Act 2014.

Clause 791 amends section 189(c)(ii) of the Children, Youth and Families

Act 2005 to reference the prohibited disclosure offence provision

in clause 730 in place of reference to the equivalent provision in

section 346 of the Mental Health Act 2014.

Clause 792 amends section 192(3)(c)(ii) of the Children, Youth and

Families Act 2005 to reference the prohibited disclosure offence

provision in clause 730 in place of reference to the equivalent

provision in section 346 of the Mental Health Act 2014.

Clause 793 amends section 193(6)(c)(ii) of the Children, Youth and

Families Act 2005 to reference the prohibited disclosure offence

provision in clause 730 in place of reference to the equivalent

provision in section 346 of the Mental Health Act 2014.

Clause 794 amends sections 208(c)(ii) and 212(c)(ii) of the Children, Youth

and Families Act 2005 to reference the prohibited disclosure

offence provision in clause 730 in place of reference to the

equivalent provision in section 346 of the Mental Health

Act 2014.

221

Division 3—Co-operative Housing and Societies Act 1958

Clause 795 amends section 48(11)(b) of the Co-operative Housing and

Societies Act 1958 to make reference to the Bill in place of

reference to the Mental Health Act 2014.

Division 4—Commission for Children and Young People Act 2012

Clause 796 amends paragraph (b) of the definition of health service in

section 3 of the Commission for Children and Young People

Act 2012 to substitute a reference to a mental health service

provider within the meaning of the Mental Health Act 2014

with a reference to mental health and wellbeing service provider

within the meaning of the Bill.

Clause 797 amends section 44(c)(ii) of the Commission for Children and

Young People Act 2012 to reference the prohibited disclosure

offence provision in clause 730 in place of reference to the

equivalent provision in section 346 of the Mental Health

Act 2014.

Clause 798 amends section 53(1)(g) of the Commission for Children and

Young People Act 2012 to replace a reference to the Complaints

Commissioner within the meaning of the Mental Health

Act 2014 with a reference to the Mental Health and Wellbeing

Commissioner within the meaning of the Bill.

Division 5—Coroners Act 2008

Clause 799 amends paragraph (i) of the definition of persons placed in

custody or care in section 3(1) of the Coroners Act 2008 to

make reference to the Bill in place of reference to the Mental

Health Act 2014.

Clause 800 amends section 4(2)(d) of the Coroners Act 2008 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

Clause 801 amends section 12(2) of the Coroners Act 2008 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

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Division 6—Corrections Act 1986

Clause 802 amends section 9AA(1)(b)(iii) of the Corrections Act 1958 to

make reference to the Bill in place of reference to the Mental

Health Act 2014.

Clause 803 amends section 47(1)(m)(xi) of the Corrections Act 1958 to

replace a reference to the Complaints Commissioner within the

meaning of the Mental Health Act 2014 with a reference to the

Mental Health and Wellbeing Commissioner within the meaning

of the Bill.

Clause 804 amends section 47B(2)(f) of the Corrections Act 1958 to replace

a reference to the Complaints Commissioner within the meaning

of the Mental Health Act 2014 with a reference to the Mental

Health and Wellbeing Commissioner within the meaning of the

Bill.

Clause 805 amends clause 56AB of the Corrections Act 1958.

Subclause (1) and (2) respectively amend subsection (1)(a) and

(2)(a) and (b) to make reference to the Bill in place of reference

to the Mental Health Act 2014.

Subclause (3) amends the Note at the foot of section 56AB to

make reference to relevant provisions of the Bill in place of

reference to provisions of the Mental Health Act 2014 relevant

to the transfer or return of prisoners and other people to

designated mental health services.

Clause 806 amends section 74(8A) of the Corrections Act 1958 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

Clause 807 amends the definition of designated mental health service and

patient in clause 104DA(5) of the Corrections Act 1958 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

Clause 808 amends the note at the foot of section 104DF of the Corrections

Act 1986 to make reference to the Bill in place of reference to the

Mental Health Act 2014.

223

Clause 809 amends the definition of Corrections-related legislation

contained in section 104ZX(g) of the Corrections Act 1958 to

make reference to the Bill in place of reference to the Mental

Health Act 2014.

Clause 810 amends section 104ZY(2)(de) of the Corrections Act 1958 to

replace a reference to the Complaints Commissioner within the

meaning of the Mental Health Act 2014 with a reference to the

Mental Health and Wellbeing Commissioner within the meaning

of the Bill.

Division 7—Crimes Act 1958

Clause 811 provides for 52A of the Crimes Act 1958 to be amended to—

• amend the definition of mental illness to make

reference to the Bill in place of reference to the Mental

Health Act 2014;

• amend paragraph (c) of the definition of service

provider to make reference to the Bill in place of

reference to the Mental Health Act 2014.

Clause 812 amends section 328(c)(ii) of the Crimes Act 1958 to reference

the prohibited disclosure offence provision in clause 730 in place

of reference to the equivalent provision in section 346 of the

Mental Health Act 2014.

Clause 813 provides for section 464(2) of the Crimes Act 1958 to be

amended to—

• amend the definition of designated mental health

service to make reference to the Bill in place of

reference to the Mental Health Act 2014;

• amend the definition of detained or protected person to

update reference to an assessment patient, a court

assessment patient, a temporary treatment patient, a

treatment patient or a security patient within the

meaning of the Bill;

• amend the definition of security patient to make

reference to the Bill in place of reference to the Mental

Health Act 2014.

224

Clause 814 amends section 464B(1)(a)(iii) of the Crimes Act 1958 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

Division 8—Crimes (Mental Impairment and Unfitness to be

Tried) Act 1997

Clause 815 provides for section 3(1) of the Crimes (Mental Impairment

and Unfitness to be Tried) Act 1997 to be amended to—

• amend the definitions of authorised psychiatrist, chief

psychiatrist and designated mental health service to

make reference to the Bill in place of reference to the

Mental Health Act 2014;

• repeal paragraph (c) of the definition of forensic

patient;

• amend the definition of Secure Treatment Order to

make reference to the relevant provision in the Bill in

place of reference to a provision in the Mental Health

Act 2014.

Clause 816 amends note 2 at the foot of section 38ZM of the Crimes

(Mental Impairment and Unfitness to be Tried) Act 1997 to

replace the reference to section 299 of the Mental Health

Act 2014 in relation to a warrant to arrest security patient absent

without leave who leaves Victoria with the updated provision in

clause 563 of the Bill.

Clause 817 amends section 47(1)(a)(ii), (ab)(ii) and (b)(ii) of the Crimes

(Mental Impairment and Unfitness to be Tried) Act 1997 to

replace a reference to a mental health service provider within the

meaning of the Mental Health Act 2014 with a reference to the

mental health and wellbeing service provider within the meaning

of the Bill.

Clause 818 amends the note at the foot of section 58(6) of the Crimes

(Mental Impairment and Unfitness to be Tried) Act 1997 to

make reference to the Bill in place of reference to the Mental

Health Act 2014.

225

Clause 819 amends section 73J(1)(d)(ii) of the Crimes (Mental Impairment

and Unfitness to be Tried) Act 1997 to replace the reference to

section 326 of the Mental Health Act 2014 in relation to persons

absent without leave who leave from interstate facilities with the

updated provision in clause 608 of the Bill.

Division 9—Criminal Procedure Act 2009

Clause 820 provides for section 3 of the Criminal Procedure Act 2009 to be

amended to—

• amend the definition of in detention to make reference

to the Bill in place of reference to the Mental Health

Act 2014;

• amend paragraph (c) of the definition of responsible

person to make reference to the Bill in place of

reference to the Mental Health Act 2014.

Division 10—Disability Act 2006

Clause 821 amends the Disability Act 2006 to—

• substitute the definition of Mental Health and

Wellbeing Commissioner to replace reference to a

provision in the Mental Health Act 2014 with

reference to the Mental Health and Wellbeing

Commissioner being appointed under clause 420 of the

Bill;

• amend section 132ZB(f) of that Act to replace reference

to the Mental Health Complaints Commissioner with

reference to the Mental Health and Wellbeing

Commissioner.

Division 11—Disability Service Safeguards Act 2018

Clause 822 amends the Disability Service Safeguards Act 2018.

Subclause (1) amends section 3(1) of the Disability Service

Safeguards Act 2018 to—

• amend paragraph (b) of the definition of health

complaints entity to replace reference to the Complaints

Commissioner appointed under section 226 of the

Mental Health Act 2014 with reference to the Mental

226

Health and Wellbeing Commissioner being appointed

under clause 420 of the Bill; and

• insert a definition for Mental Health and Wellbeing

Commissioner, referring to the term having the same

meaning as in clause 3(1) of the Bill.

Subclause (2) amends section 188(1)(d)(ii) of the Disability

Service Safeguards Act 2018 to replace reference to the

Complaints Commissioner with reference to the Mental Health

and Wellbeing Commissioner.

Subclause (3) amends the definition of relevant entity in

section 204 of the Disability Service Safeguards Act 2018 to

replace reference to the Complaints Commissioner with reference

to the Mental Health and Wellbeing Commissioner.

Division 12—Duties Act 2000

Clause 823 amends section 45A(1)(g) of the Duties Act 2000 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

Division 13—Firearms Act 1996

Clause 824 amends section 84(1)(c) of the Firearms Act 1996 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

Clause 825 amends section 183(1) of the Firearms Act 1996 to reference the

prohibited disclosure offence provision in clause 730 in place of

reference to the equivalent provision in section 346 of the

Mental Health Act 2014.

Division 14—Gambling Regulation Act 2003

Clause 826 amends section 10.3.6(a) and (c) of the Gambling Regulation

Act 2003 to make reference to the Bill in place of reference to the

Mental Health Act 2014.

227

Division 15—Guardianship and Administration Act 2019

Clause 827 amends section 17 of the Guardianship and Administration

Act 2019

• to amend subsection (1) (d)(iv) to make reference to the

Bill in place of reference the Mental Health Act 2014;

and

• to amend the definition of institution in section 17(7) to

refer to a mental health and wellbeing service provider

within the meaning of the Bill.

Division 16—Health Complaints Act 2016

Clause 828 amends paragraph (d) of the definition of relevant law in

section 3(1) of the Health Complaints Act 2016 to make

references to the Bill in place of references to the Mental Health

Act 2014.

Division 16A—Health Records Act 2001

Clause 829 amends section 3(1) of the Health Records Act 2001 to insert

new definitions of health information statement and mental

health and wellbeing service provider. Both definitions have the

same meaning as they have under the Bill.

Clause 830 inserts new subsection (1A) to section 22 of the Health Records

Act 2001. The new subsection enables the Health Complaints

Commissioner, by notice published in the Government Gazette,

to issue or vary guidelines in relation to the operation of

section 16 of the Health Records Act 2001 and Health Privacy

Principle 6.5 in relation to the process for a person making a

health information statement as provided for under the Bill.

Clause 831 amends subsection 32 of the Health Records Act 2001 to insert

new subsection (2A). This new subsection provides that despite

subsection (2), a mental health and wellbeing service provider

must not charge a fee to a person for providing access to health

information held by the mental health and wellbeing service

provider in respect of that person as a result of providing mental

health and wellbeing services to the person

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Division 17—Health Services Act 1988

Clause 832 amends section 3(1) of the Health Services Act 1988 to include

definitions of declared operator, Victorian Institute of Forensic

Mental Health and Youth Mental Health and Wellbeing

Victoria as defined in the Bill.

Paragraph (b) inserts new paragraph (ca) in the definition of

health or related service to make reference to Youth Mental

Health and Wellbeing Victoria.

Clause 833 amends section 17AA of the Health Services Act 1988 to

substitute subsection (3), which expands the scope of public

hospital services to services provided to public hospital patients

by Youth Mental Health and Wellbeing Victoria and a declared

operator under a service agreement with Youth Mental Health

and Wellbeing Victoria.

Clause 834 amends section 17AB of the Health Services Act 1988 to

substitute reference to the Victorian Institute of Forensic Mental

Health established by section 328 of the Mental Health

Act 2014 with reference to the Victorian Institute of Forensic

Mental Health and Youth Mental Health and Wellbeing Victoria,

thereby extending to the operation of the provisions in relation to

the public funding of agencies under the Health Services

Act 1988 to Youth Mental Health and Wellbeing Victoria.

Clause 835 amends the definition of public hospital in section 18A(2) of the

Health Services Act 1988 to include Youth Mental Health and

Wellbeing Victoria and any declared operator providing youth

mental health and wellbeing services under a service agreement

with Youth Mental Health and Wellbeing Victoria.

Clause 836 amends the definition of health service entity in section 134V of

the Health Service Act 1988 to—

• omit, in paragraph (i), "established by section 328 of the

Mental Health Act 2014" as this wording will be

outdated and also unnecessary upon the insertion of a

definition of Victorian Institute of Forensic Mental

Health into the Health Service Act 1988 by clause 832;

and

• insert, after paragraph (i), a new subparagraph (ia) to

refer to Youth Mental Health Victoria as a health

service entity.

229

Clause 837 provides for the amendment of section 139 of the Health

Services Act 1988 to replace references to a mental health

service provider with references to a mental health and wellbeing

service providers and to include a definition of mental health

and wellbeing service provider, which has the same meaning as

in clause 3(1) of the Bill.

Division 18—Human Services (Complex Needs) Act 2009

Clause 838 substitutes the definition of Tribunal in section 3 of the Human

Services (Complex Needs) Act 2009 to refer to the Mental

Health Tribunal established under clause 330 of the Bill.

Clause 839 amends section 7(b)(i) of the Human Services (Complex Needs)

Act 2009 to make reference to the Bill in place of reference to the

Mental Health Act 2014.

Division 19—Independent Broad-based Anti-corruption

Commission Act 2011

Clause 840 amends paragraph (d) of the definition of detained person in

section 3(1) of the Independent Broad-based Anti-corruption

Commission Act 2011 to reference the provision establishing the

Victorian Institute of Forensic Mental Health in the Bill in place

of the reference to the equivalent in the Mental Health

Act 2014.

Division 20—International Transfer of Prisoners (Victoria)

Act 1998

Clause 841 amends paragraph (b) of the definition of authorised person in

section 4(3) of the International Transfer of Prisoners

(Victoria) Act 1998 to make reference to the Bill in place of

reference to the Mental Health Act 2014.

Division 21—Juries Act 2000

Clause 842 amends clause 3(b) of Schedule 2 to the Juries Act 2000 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

230

Division 22—Land Tax Act 2005

Clause 843 amends section 74A(1)(g) of the Land Tax Act 2005 to

reference the provision establishing the Victorian Institute of

Forensic Mental Health in clause 610 in place of the reference to

the equivalent provision in section 328 of the Mental Health

Act 2014.

Division 23—Legal Aid Act 1978

Clause 844 amends section 6(1) of the Legal Aid Act 1978 to recognise

Victoria Legal Aid's role in providing non-legal mental health

advocacy services as provided for under the Bill.

Division 24—Magistrates' Court Act 1989

Clause 845 amends the definition of mental illness in section 3(1) of the

Magistrates' Court Act 1989 to make reference to the Bill in

place of reference to the Mental Health Act 2014.

Division 25—Medical Treatment and Planning Decisions Act 2016

Clause 846 amends section 1(f) of the Medical Treatment and Planning

Decisions Act 2016 to make reference to the Bill in place of

reference to the Mental Health Act 2014.

Clause 847 provides for section 3(1) of the Medical Treatment and

Planning Decisions Act 2016 to be amended to—

• amend the definitions of authorised psychiatrist,

electroconvulsive treatment, mental health patient,

mental illness and neurosurgery for mental illness to

make reference to the Bill in place of reference to the

Mental Health Act 2014;

• amend paragraph (b) of the definition of health facility

to make reference to Chapter 14 in the Bill in place of

reference to Part 14 in the Mental Health Act 2014;

• amend the definition of Tribunal to reference the

provision establishing the Mental Health Tribunal in

clause 330 in place of the reference to the equivalent

provision in section 152 of the Mental Health

Act 2014.

231

Clause 848 amends the note at the foot of section 48(1) of the Medical

Treatment and Planning Decisions Act 2016 to reference the

treatment and interventions provisions in Chapter 3 of the Bill in

place of reference to the treatment provisions in Part 5 of the

Mental Health Act 2014.

Clause 849 amends the note at the foot of section 55(5) of the Medical

Treatment and Planning Decisions Act 2016 to make reference

to the relevant provision of the Bill in place of reference to a

provision of the Mental Health Act 2014.

Clause 850 amends the note at the foot of section 94 of the Medical

Treatment and Planning Decisions Act 2016 to make reference

to the relevant provision of the Bill in place of reference to a

provision of the Mental Health Act 2014.

Division 26—Ombudsman Act 1973

Clause 851 amends section 28(1) and 28(1A) of the Ombudsman Act 1973

to make references to the Bill in place of references to the

Mental Health Act 2014.

This clause amends Schedule 3, item 10A of the Ombudsman

Act 1973 to make reference to the Mental Health Wellbeing

Commission in place of a reference to the Mental Health

Complaints Commissioner.

Division 27—Payroll Tax Act 2007

Clause 852 amends section 17(1)(h) of Schedule 2 of the Payroll Tax

Act 2007 to reference the provision establishing the Victorian

Institute of Forensic Mental Health in clause 610 in place of the

reference to the equivalent provision in section 328 of the

Mental Health Act 2014.

Division 28—Privacy and Data Protection Act 2014

Clause 853 amends section 63(1)(g) in of the Privacy and Data Protection

Act 2014 to substitute a reference to the Mental Health

Complaints Commissioner with a reference to the Mental Health

and Wellbeing Commissioner.

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Division 29—Property Law Act 1958

Clause 854 amends section 30(1) and 30(2) of the Property Law Act 1958

to make reference to the Bill in place of the Mental Health

Act 2014.

Clause 855 amends section 171(9) of the Property Law Act 1958 to make

reference to the Bill in place of the Mental Health Act 2014.

Division 30—Public Administration Act 2004

Clause 856 substitutes section 6(1)(ga) of the Public Administration

Act 2004 to refer to the Mental Health and Wellbeing

Commission established under the Bill as a special body within

the meaning of that Act, in place of the Mental Health

Complaints Commissioner under the Mental Health Act 2014.

Clause 857 amends section 16(1) of the Public Administration Act 2004

to—

• amend paragraph (n) to make reference to the Bill in

place of the Mental Health Act 2014;

• inserts new paragraph (o) to provide that the Chair of

the Mental Health and Wellbeing Commission is an

office holder with the functions of a public service body

Head in relation to its employees.

The amendments by clause 857 are dependent on amendments to

section 16(1) of the Public Administration Act 2004 by

section 40 of the Victorian Collaborative Centre for Mental

Health and Wellbeing Act 2021 coming into effect, which must

be by 1 October 2022 per the commencement scheme for that

Act.

Division 31—Public Health and Wellbeing Act 2008

Clause 858 amends section 41(1)(fb) of the Public Health and Wellbeing

Act 2008 to reference the provision for the appointment of the

chief psychiatrist in clause 265 in place of the reference to the

equivalent provision in section 119 of the Mental Health

Act 2014.

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Division 32—Residential Tenancies Act 1997

Clause 859 amends paragraph (b) of the definition of health or residential

service in section 3(1) of the Residential Tenancies Act 1997 to

make reference to the Bill in place of reference to the Mental

Health Act 2014.

Division 33—Safe Patient Care (Nurse to Patient and Midwife to

Patient Ratios) Act 2015

Clause 860 amends section 9(2) of the Safe Patient Care (Nurse to Patient

and Midwife to Patient Ratios) Act 2015 to make reference to

the Bill in place of reference to the Mental Health Act 2014.

Division 34—Sentencing Act 1991

Clause 861 provides for section 3(1) of the Sentencing Act 1991 to be

amended to—

• amend the definition of authorised psychiatrist, chief

psychiatrist, designated mental health service, mental

illness and security patient to make reference to the Bill

in place of reference to the Mental Health Act 2014;

• amend the definition of Mental Health Tribunal,

Secure treatment order and Temporary treatment order

to make reference to the relevant provisions in the Bill

in place of reference to the equivalent provisions in the

Mental Health Act 2014.

Clause 862 amends paragraph (a) of the definition of impaired mental

functioning contained in section 10A(1) of the Sentencing

Act 1991 to make reference to the Bill in place of reference to the

Mental Health Act 2014.

Clause 863 amends the note at the foot of section 94(1) of the Sentencing

Act 1991 to reference the provision in relation to the provision of

a report to court by an authorised psychiatrist in clause 177 in

place of the reference to the equivalent provision in section 43(d)

of the Mental Health Act 2014.

234

Clause 864 amends section 94C(5) of the Sentencing Act 1991 to reference

the provision in relation to the discharge of a person subject to a

court secure treatment order in clause 544 in place of the

reference to the equivalent provision in section 274 of the

Mental Health Act 2014.

Division 35—Serious Offenders Act 2018

Clause 865 amends the definition of designated mental health service

contained in section 3 of the Serious Offenders Act 2018 to

make reference to the Bill in place of reference to the Mental

Health Act 2014.

Clause 866 amends section 200(1)(g)(iii) of the Serious Offenders Act 2018

to replace reference to the Complaints Commissioner appointed

under section 226 of the Mental Health Act 2014 with reference

to the Mental Health and Wellbeing Commissioner being

appointed under clause 420 of the Bill.

Clause 867 amends section 224(4)(b)(xiii) of the Serious Offenders

Act 2018 to replace reference to the Complaints Commissioner

appointed under section 226 of the Mental Health Act 2014 with

reference to the Mental Health and Wellbeing Commissioner

being appointed under clause 420 of the Bill.

Clause 868 amends the definition of relevant Act contained in section 284(6)

of the Serious Offenders Act 2018 to make reference to the Bill

in place of reference to the Mental Health Act 2014.

Clause 869 amends section 287(2)(e) of the Serious Offenders Act 2018 to

make reference to the Bill in place of reference to the Mental

Health Act 2014.

Division 36—Sex Offenders Registration Act 2004

Clause 870 provides for section 3(1) of the Sex Offenders Registration

Act 2004 to be amended to—

• amend paragraph (a)(vi) of the definition of government

custody to make reference to the Bill in place of

reference to the Mental Health Act 2014;

• amend paragraph (a)(ix) of the definition of government

custody to reference the provisions in clauses 555 and

556 in relation to taking security patients to another

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designated mental health service in place of the

reference to the equivalent provisions in sections 291

and 292 of the Mental Health Act 2014;

• amend the definition of involuntary patient and security

patient to make reference to the Bill in place of

reference to the Mental Health Act 2014.

Division 37—Summary Offences Act 1966

Clause 871 amends item 4 of Schedule 1 to the Summary Offences

Act 1966 to make reference to the Bill in place of reference to the

Mental Health Act 2014.

Division 38—Supported Residential Services (Private Proprietors)

Act 2010

Clause 872 amends section 5(1)(c) of the Supported Residential Services

(Private Proprietors) Act 2010 to make reference to the Bill in

place of reference to the Mental Health Act 2014.

Division 39—Tobacco Act 1987

Clause 873 amends section 5A(2)(h) of the Tobacco Act 1987 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

Division 40—Transport Accident Act 1986

Clause 874 amends the definition of hospital in section 3(1) of the

Transport Accident Act 1986 to make reference to the Bill in

place of reference to the Mental Health Act 2014.

Division 41—Trustee Act 1958

Clause 875 amends section 41(9) of the Trustee Act 1958 to make reference

to the Bill in place of reference to the Mental Health Act 2014.

Clause 876 amends section 48(1) of the Trustee Act 1958 to make reference

to the Bill in place of reference to the Mental Health Act 2014.

Clause 877 amends section 51(2)(e) of the Trustee Act 1958 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

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Clause 878 amends section 54 of the Trustee Act 1958.

Subclause (1) substitutes the words "mentally ill mortgagee" with

"mortgagee with mental illness" in the heading to section 54 of

the Trustee Act 1958.

Subclause (2) amends the section to make reference to the Bill in

place of reference to the Mental Health Act 2014.

Division 42—Victims of Crime Assistance Act 1996

Clause 879 substitutes the words "mentally ill within the meaning of the

Mental Health Act 2014" with "suffering from a mental illness

within the meaning of the Mental Health and Wellbeing

Act 2022" in section 29(3)(b) of the Victims of Crime

Assistance Act 1996.

Clause 880 substitutes the words "mentally ill within the meaning of the

Mental Health Act 2014" with "suffering from a mental illness

within the meaning of the Mental Health and Wellbeing

Act 2022" in section 53(b) of the Victims of Crime Assistance

Act 1996.

Division 43—Victorian Inspectorate Act 2011

Clause 881 amends paragraph (d) of the definition of detained person in

section 3(1) of the Victorian Inspectorate Act 2011 to make

reference to the Bill in place of reference to the Mental Health

Act 2014.

Division 44—Voluntary Assisted Dying Act 2017

Clause 882 amends the definition of mental illness in section 3(1) of the

Voluntary Assisted Dying Act 2017 to make reference to the

Bill in place of reference to the Mental Health Act 2014.

Clause 883 amends section 9(2) of the Voluntary Assisted Dying Act 2017

to make reference to the Bill in place of reference to the Mental

Health Act 2014.

237

Division 45—Workplace Injury Rehabilitation and Compensation

Act 2013

Clause 884 amends paragraph (c) of the definition of hospital contained in

section 3 of the Workplace Injury Rehabilitation and

Compensation Act 2013 to make reference to the Bill in place of

reference to the Mental Health Act 2014.

Part 19.2—Repeal of Chapter

Clause 885 provides for the automatic repeal of Chapter 19 of the Bill on

1 September 2024.