The Palaszczuk Government passed the Mental Health Act 2016 through parliament on 18 February 2016 but it is still yet to commence.
The Act generally deals with two broad issues. First, maintaining and improving the health and wellbeing of persons who do not have capacity to consent to treatment. Second, the ‘forensic’ purposes of the Act where persons are charged with committing an unlawful act. Much of the terminology under the previous Act has been replaced in an attempt to revise and update the language used. The new Act, in many ways, simplifies and streamlines the provisions of the previous Act.
The Act amends the names of some of the orders that can be made by the Mental Health Review Tribunal. These include the following.
An ‘examination authority’ replaces a ‘justice’s examination order’. The substance of this type of order is essentially unchanged.
An ‘emergency examination authority’ replaces an ‘emergency examination order’. The substance of this type of order is essentially unchanged. However, the new Act grants the option to extend detention in an authorised mental health service or a public sector health service facility for a further 6 hours if required.
The Act introduces a new type of order called a ‘treatment support order’. These orders are made in an effort to protect the safety of the community by imposing various conditions upon the person such as prohibiting contact with an alleged victim. Treatment support orders are less intensive than the other orders available to the Court and often will not involve stringent oversight.
Under the new Act, the Chief Psychiatrist is required to be notified if a relevant person is not transferred to an authorised mental health service within 72 hours. This allows the Chief Psychiatrist to take timely action and ensure the patient receives adequate treatment.
The Act limits the jurisdiction of the Mental Health Court to ‘serious matters’, which are indictable offences, other than offences that must be heard summarily. The Act removes the requirement for a psychiatrist’s report to be prepared for an involuntary patient for any offence. Psychiatric reports will only be prepared if a patient, subject to an Order, is charged with a ‘serious offence’. A ‘serious offence’ is an indictable offence, other than an offence that must be heard by a Magistrate.
The Act amends the definition of ‘unsound mind’ to mean a state of mind to which the provisions of the Criminal Code regarding insanity and intoxication apply. Unsound mind does not, however, include a state of mind resulting from self-induced intoxication.
The Act allows a Magistrate to discharge a person charged with an offence if the Court is reasonably satisfied that the person was of unsound mind when the offence was allegedly committed or is unfit for trial. Magistrates may also order that a person before the court be examined by an authorised doctor to decide if a treatment authority should be made for the person or to make recommendations about the person’s treatment and care.
The Act lists a number of standards that must be met regarding the treatment and care of patients. These update the limited provisions in the previous Act. For example, the Chief Psychiatrist is no longer permitted to impose a condition for a patient to wear a GPS tracking device. Included in these standards are a number of complex criteria that must be assessed when making decisions regarding various treatment options.
An entire chapter of the Act is devoted to enumerating the rights of patients and others. This includes the right to communicate with other persons by phone or electronic device except in exceptional circumstances. Higher standards and requirements regarding involvement of support persons and the communication of explanations and advice by doctors are imposed by the Act.
You can read more about the new Act here.
Robertson O’Gorman is experienced with mental health matters. Call us for advice today on 3034 0000.