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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.
24
(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
58
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.
63
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.
64
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.
65
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.
69
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.
71
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.
72
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.
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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.
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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
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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.
222
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
228
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.
233
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.