Mental Health Act 2001
No. 8 of 2001
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MENTAL HEALTH ACT 2001
Mental Health Act 2001 Arrangement of Sections
No. 8 of 2001
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MENTAL HEALTH ACT 2001
Arrangement of Sections
Section
PART I - PRELIMINARY 9
1 Short title and commencement.........................................................................9
2 Crown to be bound...........................................................................................9
3 Interpretation..................................................................................................10
PART II - VOLUNTARY ADMISSION TO A MENTAL HEALTH
FACILITY 12
4 Voluntary admission ......................................................................................12
5 Consent to admission .....................................................................................12
6 Initial examination .........................................................................................12
7 Incapacity to consent .....................................................................................12
8 Refusal of admission......................................................................................12
9 Review of Refusal of Admission ...................................................................13
10 Persons aged 14-18 Years..............................................................................13
11 Persons aged under 14 Years .........................................................................13
12 Departure .......................................................................................................13
13 Discharge of Voluntary Patients ....................................................................13
14 Review of Discharge......................................................................................14
15 Tribunal Review ............................................................................................14
16 Tribunal order ................................................................................................14
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PART III - INVOLUNTARY ADMISSION TO A MENTAL HEALTH
FACILITY 14
17 Determination of mental illness .....................................................................14
18 Criteria for involuntary admission on grounds of mental illness ...................14
19 Mental illness .................................................................................................15
20 Request for assessment...................................................................................15
21 Assessment .....................................................................................................15
22 Conveyance to facility....................................................................................16
23 Removal .........................................................................................................16
24 Warrant for entry and assessment ..................................................................16
PART IV - EMERGENCY ADMISSION 17
25 Emergency admission to a mental health facility...........................................17
26 Involuntary admission on grounds of mental illness......................................17
27 Involuntary admission on grounds of mental disorder ...................................17
28 Provision of notice .........................................................................................18
PART V - REVIEW OF INVOLUNTARY ADMISSION 18
29 Review of involuntary admission by Tribunal ...............................................18
30 On-going examinations ..................................................................................18
PART VI - AUTHORISATION OF TREATMENT 18
31 Treatment after involuntary admission...........................................................18
32 Plan of treatment ............................................................................................19
33 Authorisation of plan of treatment .................................................................19
34 Capacity to consent ........................................................................................19
35 Elements of informed consent........................................................................19
36 Requirements for consent to be informed ......................................................19
37 Explanation of treatment ................................................................................20
PART VII - REGULATION OF SPECIFIC FORMS OF
TREATMENT 20
38 Mechanical means of bodily restraint ............................................................20
39 Seclusion of patients.......................................................................................21
40 Authority perform electroconvulsive therapy ................................................22
41 Tribunal approval of electroconvulsive therapy.............................................22
42 Electroconvulsive therapy in emergencies .....................................................22
43 Authority to perform clinical trials or experimental treatment ......................23
PART VIII - INVOLUNTARY TREATMENT IN THE COMMUNITY 23
44 Criteria for involuntary treatment in the community .....................................23
45 Community treatment order ...........................................................................23
46 Contents of order............................................................................................23
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47 Application for order......................................................................................24
48 Interim community treatment order ...............................................................24
49 Procedure .......................................................................................................24
50 Duration of order ...........................................................................................24
51 Review of treatment plan ...............................................................................24
52 Discharge from order .....................................................................................25
53 Review by Tribunal .......................................................................................25
54 Discharge by Tribunal....................................................................................25
55 Psychiatric case manager ...............................................................................25
56 Case manager's report ....................................................................................25
57 Breach of order ..............................................................................................25
58 Consequences of breach.................................................................................26
PART IX - PATIENTS SUBJECT TO THE CRIMINAL OFFENCES
ACT 26
59 Criteria for admission as a forensic patient....................................................26
DIVISION 1 - ARRESTED UNCHARGED PERSON........................................26
60 Arrest .............................................................................................................26
61 Decision not to charge ...................................................................................27
62 Person not released ........................................................................................27
DIVISION 2 - COURT REFERRAL...................................................................27
63 Powers of court ..............................................................................................27
64 Interim treatment order ..................................................................................27
65 Return of person to court ...............................................................................27
66 Inclusion in the sentence................................................................................28
67 Treatment order..............................................................................................28
68 Evidence for treatment order .........................................................................28
DIVISION 3 - DEPARTMENTAL TRANSFER ..................................................28
69 Request for assessment ..................................................................................28
70 Transfer..........................................................................................................28
71 Termination of transfer ..................................................................................29
72 Involuntary transfer........................................................................................29
73 Involuntary mental disorder transfer..............................................................29
74 Termination of involuntary mental disorder transfer .....................................29
75 Involuntary mental illness transfer.................................................................29
76 Discharge .......................................................................................................30
77 Notification of term of imprisonment ............................................................30
78 Admission time ..............................................................................................30
DIVISION 4 - SPECIAL VERDICT REFERRAL ...............................................30
79 Application of division ..................................................................................30
80 Privy Council decision...................................................................................30
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81 Review by Tribunal........................................................................................31
82 Application for review ...................................................................................31
83 Dismissal of frivolous or vexatious complaints .............................................31
84 Purpose of review...........................................................................................31
85 Tribunal order.................................................................................................31
86 Notification of order.......................................................................................32
87 Breach of conditions.......................................................................................32
88 Right of appeal ...............................................................................................32
PART X - PATIENTS' RIGHTS AND COMPLAINTS
MECHANISMS 33
89 Information about patient's right ....................................................................33
90 Information may be required..........................................................................33
91 Discharge planning.........................................................................................33
92 Privacy and confidentiality.............................................................................33
93 Exceptions ......................................................................................................34
94 Procedures for handling complaints ...............................................................34
95 Acknowledgement of complaint ....................................................................34
96 Documentation of complaints ........................................................................35
97 Report to Mental Health Advisory Committee ..............................................35
98 Criminal offence.............................................................................................35
99 Professional misconduct.................................................................................35
100 Community visitors ........................................................................................35
101 Appointment to more than one facility...........................................................35
102 Tenure and remuneration ...............................................................................35
103 Resignation and removal of community visitors............................................36
104 Restrictions on appointment...........................................................................36
105 Inquiry functions ............................................................................................36
106 Complaint functions .......................................................................................36
107 Visiting duties ................................................................................................36
108 Powers of inspection ......................................................................................37
109 Assistance to community visitor ....................................................................37
110 Responsibilities to report................................................................................37
111 Report to Mental Health Advisory Committee ..............................................37
112 Minister may require report............................................................................38
113 Ability to report to Minister ...........................................................................38
114 Provision of information ................................................................................38
115 Request to see community visitor ..................................................................38
116 Unreasonable requests....................................................................................38
PART XI - ADMINISTRATION 38
117 Declaration of Mental health facilities ...........................................................38
118 Appointment and role of authorised psychiatrist............................................39
119 Approved Absence .........................................................................................39
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120 Unapproved absence ......................................................................................39
PART XII -THE MENTAL HEALTH ADVISORY COMMITTEE 40
121 Mental Health Advisory Committee ..............................................................40
122 Membership of Mental Health Advisory Committee ....................................40
123 Tenure ............................................................................................................40
124 Secretary ........................................................................................................41
125 Report to National Health Development Committee.....................................41
126 Immunity........................................................................................................41
PART XIII - MENTAL HEALTH REVIEW TRIBUNAL 41
127 Composition...................................................................................................41
128 President.........................................................................................................41
129 Terms and conditions of appointment............................................................41
130 Termination of appointment ..........................................................................42
131 Quorum ..........................................................................................................42
132 Functions........................................................................................................42
133 Application of rule of evidence......................................................................43
134 Right of appearance and representation .........................................................43
135 Access to medical records..............................................................................43
136 Evidence.........................................................................................................44
137 Interpreter.......................................................................................................44
138 Inquiries may be held in public......................................................................44
139 Record of proceedings ...................................................................................44
140 Making an application for review ..................................................................45
141 Appeals ..........................................................................................................45
142 Power of Supreme Court................................................................................45
PART XIV - MISCELLANEOUS 45
143 Repeal and savings.........................................................................................45
144 Review of existing patients............................................................................46
145 Regulations ....................................................................................................46
Mental Health Act 2001 Section 1
No. 8 of 2001
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MENTAL HEALTH ACT 2001
No. 8 of 2001
AN ACT TO PROVIDE FOR SERVICES RELATING TO MENTAL
HEALTH AND FOR ANCILLARY PURPOSES
I assent,
TAUFA'AHAU TUPOU IV,
21st September, 2002
[11th July, 2001]
BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature
of the Kingdom as follows:
PART I - PRELIMINARY
1 Short title and commencement.
(1) This Act may be cited as the Mental Health Act 2001.
(2) This Act shall come into force on a date to be proclaimed by His Majesty
in Council.
2 Crown to be bound
This Act shall bind the Crown.
Section 3 Mental Health Act 2001
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3 Interpretation
In this Act, unless the context otherwise requires —
“authorised medical practitioner” means a medical practitioner
authorised by the Minister for the purposes of this Act.
“authorised psychiatrist” means a psychiatrist appointed in accordance
with Part XI of this Act.
“community treatment order” means an order which permits
involuntary treatment in the community.
“community treatment plan” means a written document with the details
of the psychiatric treatment, care, rehabilitation, support and other
services a person subject to a community treatment order is to have and
the details of the person responsible for reviewing the plan and its
implementation and the facility or place where the treatment, care of
service is to be delivered;
“Court” means the Supreme Court;
“forensic patient” means a person found not guilty under section 19, or a
person found unfit to be tried under section 18, Criminal Offences Act
(Cap. 18), who meet the criteria for admission under PART IX;
“health care agency” means a mental health facility, a health centre or
other health service that is authorised to provide psychiatric treatment,
care and rehabilitation to a person subject to a community treatment order;
“independent medical practitioner” means a medical practitioner who is
not a relative of the person assessed and has no financial interest in his
involuntary admission to a mental health facility;
“interested person” includes a mental health welfare officer, a health
officer, an independent medical practitioner, an authorised medical
practitioner, an authorised psychiatrist, a police officer, a District Officer,
a Town Officer, the Registrar of the Tribunal or any person with a genuine
interest in the mental health of another person;
“interim community treatment order” means a community treatment
order made under section 48 of this Act;
“involuntary admission” means admission as set out in PARTS III and
IV and admission in accordance with sections 67, 72, or 80;
“involuntary patient” means a person admitted to a mental health facility
under involuntary admission;
“involuntary treatment” means involuntary treatment as set out in PART
VI;
Mental Health Act 2001 Section 3
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“mental disorder” is a clinical condition in which a person manifests
abnormal behaviour that does not meet the criteria for mental illness in
this Act but the person is dangerous to himself or to others;
“mental health facility” means a psychiatric hospital or a psychiatric unit
of a general hospital;
“mental health order” includes an order by the Tribunal that a person is
an involuntary patient, a forensic patient, a person under supervision or a
person subject to a community treatment order and an interim order that a
person is an involuntary patient, a forensic patient, a person under
supervision or a person subject to a community treatment order;
“mental health practitioner” means a medical practitioner, clinical
psychologist, nurse, social worker, mental health welfare officer or other
appropriately trained and qualified person with specific skills relating to
mental health care;
“mental illness” means a condition which seriously impairs, either
temporarily or permanently, the mental functioning of a person in one or
more of the areas of thought, mood, volition, perception, orientation or
memory and is characterised by the presence of at least one of the
following symptoms —
(a) delusions;
(b) hallucinations;
(c) serious disorder of the content of thought;
(d) serious disorder of thought form;
(e) serious disturbance of mood; or
(f) sustained or repeated irrational behaviour which indicates the
presence of at least one of those symptoms.
“Minister” means the Minister of Health;
“Mental Health Advisory Committee” means the Mental Health
Advisory Committee established under PART XII;
“President” means the President of the Mental Health Review Tribunal;
“public place” means a public place as defined in section 2 of the Order
in Public Places Act (Cap. 37);
“psychiatrist” means a fellow of a College of Psychiatrists recognised by
the Mental Health Advisory Committee or any other suitably qualified
medical practitioner who is declared by the Minister to be a psychiatrist
for the purposes of this Act;
“representative” of a patient or person subject to a community treatment
order means a law practitioner, friend, family member or other person
Section 4 Mental Health Act 2001
No. 8 of 2001 Page 12
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with a genuine interest in the patient's or subject person's welfare,
nominated by the patient or interest person;
“treatment order” means an order of the Court that a person convicted of
an offence be admitted as an involuntary patient;
“Tribunal” means the Mental Health Review Tribunal established under
PART XIII;
“voluntary patient” means a person admitted to a mental health facility
under PART II.
PART II - VOLUNTARY ADMISSION TO A MENTAL
HEALTH FACILITY
4 Voluntary admission
A person may consent to voluntary admission to a mental health facility.
5 Consent to admission
A person capable of giving informed consent may consent to voluntary
admission and treatment.
6 Initial examination
Within 24 hours of a voluntary admission, the authorized psychiatrist shall
examine the person and determine that the person admitted is capable of
consenting to the admission and that the consent is given without coercion.
7 Incapacity to consent
When the authorised psychiatrist is not able to determine that the person is
capable of consenting to the admission or treatment, the authorised psychiatrist
may admit the person and shall apply to the Tribunal for a determination of the
person's capacity to consent.
8 Refusal of admission
(1) When the authorised psychiatrist is not satisfied that the person will obtain
any benefit from the voluntary admission, the authorised psychiatrist shall
refuse to admit the person.
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(2) When a person is refused admission, the authorised psychiatrist shall
inform the person that he has the right to apply to the President for a
review.
9 Review of Refusal of Admission
(1) A person who is refused voluntary admission may apply to the President
for a review of the decision.
(2) The President of the Tribunal shall determine the review within 48 hours
of receiving the application.
10 Persons aged 14-18 Years
(1) A person between the age of 14 and the age of 18 may be voluntarily
admitted to a mental health facility if the authorised psychiatrist
determines that the person is capable of making an informed decision to
receive treatment.
(2) The authorised psychiatrist shall take all reasonable action to inform a
parent or guardian of the person as soon as practicable of the voluntary
admission of the person.
11 Persons aged under 14 Years
(1) A person who is under the age of 14 shall not be admitted to a mental
health facility unless the request for the admission is made by a parent or a
guardian of the person.
(2) A person who is under the age of 14 shall not be admitted to a mental
health facility which provides treatment to adults unless that person can be
cared for and treated separately from adults.
12 Departure
A person who has been admitted voluntarily may leave the mental health facility
at any time unless he satisfies the criteria for involuntary admission and shall be
informed of that right.
13 Discharge of Voluntary Patients
(1) The authorised psychiatrist shall discharge a person who has consented to
a voluntary admission when the authorised psychiatrist determines that —
(a) it is in the person's best interests; or
Section 14 Mental Health Act 2001
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(b) the person will not obtain any benefit from the voluntary admission.
(2) When the authorised psychiatrist determines that a person is to be
discharged, the authorised psychiatrist shall inform the person that he has
a right to apply to the President for a review.
14 Review of Discharge
(1) A person who is discharged by an authorised psychiatrist may apply to the
President for a review of the decision.
(2) The President shall determine the review within 48 hours of receiving the
application.
15 Tribunal Review
The Tribunal shall review a voluntary patient who remains for 6 months after
admission and thereafter shall review the patient once in each month period.
16 Tribunal order
At an initial review or a further review, the Tribunal may —
(a) decline to make any order;
(b) order that the person be discharged from the mental health facility
and the operation of this order may be stayed for a period of up to
14 days;
(c) order that the person be involuntarily admitted if the person
satisfies the criteria for involuntary admission on the grounds of
mental illness.
PART III - INVOLUNTARY ADMISSION TO A MENTAL
HEALTH FACILITY
17 Determination of mental illness
A determination that a person has a mental illness shall be made in accordance
with internationally accepted medical standards.
18 Criteria for involuntary admission on grounds of mental illness
The criteria for involuntary admission on the grounds of mental illness are —
Mental Health Act 2001 Section 19
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(a) the person has a mental illness;
(b) as a result of that mental illness the person requires treatment which
is available at the mental health facility to which he is to be, or has
been, admitted;
(c) as a result of that mental illness the person is likely to cause
imminent harm to himself or others, or is likely to suffer serious
mental or physical deterioration unless admitted to, or detained at, a
mental health facility and treated;
(d) the person lacks the capacity to give informed consent to treatment
for his mental illness or the person has unreasonably refused
treatment for his mental illness; and
(e) there is no less restrictive means of ensuring that the person
receives appropriate treatment for his mental illness.
19 Mental illness
The criteria for involuntary admission on the grounds of mental disorder are —
(a) the person does not appear to meet the criteria for involuntary
admission on the grounds of mental illness; and
(b) the person's current behaviour is so irrational as to justify a
conclusion on reasonable grounds that unless temporarily detained,
treated or cared for the person is likely to suffer serious physical
harm or cause others serious physical harm.
20 Request for assessment
An interest person may, upon reasonable grounds, request —
(a) an independent medical practitioner; or
(b) a medical practitioner at a mental health facility,
to carry out an assessment on another person who may appear to be in need of
treatment in a mental health facility.
21 Assessment
(1) A medical practitioner receiving a request for an assessment under section
20 may, if satisfied as to the genuiness of the request, carry out an
assessment to determine whether the person meets the criteria for
admission to a mental health facility as an involuntary patient.
Section 22 Mental Health Act 2001
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(2) A person who refuses to consent to an assessment under this section may
only be assessed under the authority of a warrant issued under section 24
(1) (b).
(3) If a medical practitioner carrying out an assessment is satisfied that the
person appears to meet the criteria for involuntary admission on the
grounds of mental illness or mental disorder, then he shall complete a
recommendation within 48 hours of the assessment.
22 Conveyance to facility
A recommendation that states that the assessed person meets the criteria for
admission as an involuntary patient permits —
(a) a police officer;
(b) a mental health practitioner; or
(c) a psychiatric assistant,
to convey that person to a mental health facility.
23 Removal
Where a police officer or town officer —
(a) has reasonable grounds to believe that a person has within the last
48 hours attempted to inflict serious injury or bodily harm —
(i) on himself, or
(ii) on another person, or
(b) has reasonable grounds to believe that a person has inflicted or is
likely to inflict serious injury or bodily harm,
then the officer and any person called in assistance of him may without warrant
remove that person from any public or private place to a mental health facility
using reasonable force as necessary.
24 Warrant for entry and assessment
(1) A Magistrate may issue a warrant authorising —
(a) entry to premises by a police officer or any other nominated
persons;
(b) assessment of a person by a medical practitioner; or
(c) removal of a person to a mental health facility for assessment.
(2) A Magistrate may, upon application, issue a warrant after receiving
information in writing or by telephone from a police officer, health
Mental Health Act 2001 Section 25
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officer, district officer or town officer that the officer has reasonable
grounds to believe that the person is unable to care for himself and may
meet the criteria for involuntary admission on the grounds of mental
illness or mental disorder.
(3) When the information is received by telephone under subsection (2), the
officer shall ensure that at the earliest opportunity confirmation of the oral
information is given in writing to the Magistrate who issued the warrant.
PART IV -EMERGENCY ADMISSION
25 Emergency admission to a mental health facility
When a person is taken to a mental health facility in accordance with this Part,
that person shall be assessed by an authorised medical practitioner as soon as
practicable.
26 Involuntary admission on grounds of mental illness
(1) A person can be admitted for treatment as an involuntary patient if, after
assessment, an authorised medical practitioner (who is not the medical
practitioner who completed the recommendation) is of the opinion that the
person meets the criteria for involuntary admission on the grounds of
mental illness.
(2) If an authorised medical practitioner is not a psychiatrist, the person shall
be assessed by a psychiatrist (who is not the medical practitioner who
completed the recommendation) within 24 hours of the assessment by the
authorised medical practitioner and if the psychiatrist is not of the opinion
that the person meets the criteria for involuntary admission on the grounds
of mental illness then the person shall be discharged as an involuntary
patient immediately.
27 Involuntary admission on grounds of mental disorder
(1) When, after the person has undergone assessment, the authorised medical
practitioner is of the opinion that the person meets the criteria for
involuntary admission on the ground of mental disorder, then that person
may be admitted to a mental health facility for a period not exceeding 72
hours.
(2) Subject to section 26, a person shall not be admitted to a mental health
facility on the grounds of mental disorder more than twice within 30 days.
Section 28 Mental Health Act 2001
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(3) A person who has been admitted under this section shall be released
within 72 hours unless an authorised medical practitioner is of the opinion
that there is a real and immediate risk that the person may commit suicide
and, if the authorised medical practitioner is of that opinion, then the
person may be detained for a further period of up to 7 days.
28 Provision of notice
(1) As soon as practicable after a person has been admitted as an involuntary
patient, an authorised medical officer shall give notice of the grounds of
admission to the patient and, with the patient's consent, to a law
practitioner representing the patient (if any), nominated family members
and any other person.
(2) Where an involuntary patient is unable to communicate adequately in the
Tongan or English languages but can communicate adequately in another
language, the authorised medical practitioner shall, as soon as practicable,
provide notice of the grounds of admission to the patient in that other
language in written or oral form.
PART V - REVIEW OF INVOLUNTARY ADMISSION
29 Review of involuntary admission by Tribunal
An involuntary patient admitted on the grounds of mental illness shall have his
admission review by the Tribunal within 7 days.
30 On-going examinations
After a person has been admitted as an involuntary patient, the authorised
psychiatrist shall regularly examine that person and, if upon examination, he
forms the opinion that the patient does not continue to meet the criteria for
involuntary admission, he shall be discharged.
PART VI - AUTHORISATION OF TREATMENT
31 Treatment after involuntary admission
An involuntary patient shall not have psychiatric treatment administered without
the authority of the Tribunal unless authorised by a psychiatrist and the
treatment is needed urgently to prevent —
Mental Health Act 2001 Section 32
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(a) immediate or imminent harm; or
(b) behaviour likely to cause immediate or imminent harm;
to the patient or other persons.
32 Plan of treatment
When reviewing an involuntary patient or deciding an application, the Tribunal
may authorise a plan of treatment.
33 Authorisation of plan of treatment
An application may be made at any time to the Tribunal by the authorised
psychiatrist for authorisation or variation of a plan of treatment for an
involuntary patient.
34 Capacity to consent
A patient is capable of giving informed consent if he —
(a) is capable of understanding the elements of informed consent;
(b) is capable of understanding the effects of giving consent; and
(c) can communicate the decision to consent or to refuse to consent to
those responsible for treatment.
35 Elements of informed consent
(1) Informed consent is consent freely and voluntarily given with no
inducements being offered to the person.
(2) Informed consent is given when a patient communicates to the person
proposing to administer the treatment his consent to the proposed plan of
treatment.
36 Requirements for consent to be informed
Informed consent to treatment may be given by a patient who has been given —
(a) a clear explanation of the nature of the proposed plan of treatment
and the type of treatment to be employed;
(b) an adequate description, without concealment or distortion, of all or
any of the benefits, discomforts and risks associated with the
treatment;
Section 37 Mental Health Act 2001
No. 8 of 2001 Page 20
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(c) an adequate description of any alternate form of treatment
reasonably available;
(d) clear answers to any relevant questions asked by the patient;
(e) advice that the treatment may be refused or consent may be
withdrawn at any time while the treatment is being undertaken; and
(f) advice that independent legal advice or independent medical advice
may be obtained by the person in relation to the treatment and how
such advice may be obtained.
37 Explanation of treatment
Where treatment is administered without the patient having given informed
consent, every effort shall be made by those responsible for proposing and
administering the treatment to explain the nature and effect of the treatment to
the patient.
PART VII - REGULATION OF SPECIFIC FORMS
OF TREATMENT
38 Mechanical means of bodily restraint
(1) Mechanical means of bodily restraint of a patient in a mental health
facility shall not be applied unless —
(a) that restraint is necessary —
(i) for the purpose of the medical treatment of the patient;
(ii) to prevent the patient from causing injury to himself or any
other person; or
(iii) to prevent the patient from destroying property; and
(b) the use and form of restraint has been approved by the authorised
psychiatrist or, in the case of an emergency, authorised by the
senior psychiatric nurse on duty and notified to the authorised
psychiatrist without delay and continues for the period of time
specified in the approval or authorisation.
(2) Any person who applies a mechanical means of bodily restraint to a
patient in a mental health facility in contravention of subsection (1)
commits an offence and is liable upon conviction to a fine not exceeding
$1,000.
(3) The authorised psychiatrist shall keep records of —
(a) the form of mechanical means of bodily restraint used;
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(b) the reasons why that restraint was used;
(c) the name of the person who approved or authorised the use of that
restraint;
(d) the name of the person who applied that restraint; and
(e) the period of time for which the patient was kept restrained.
(4) The Tribunal shall inspect these records at regular intervals.
39 Seclusion of patients
(1) In this section, “seclusion” means the solitary confinement of a patient in
a room of which the doors and the windows are locked from the outside;
(2) A patient in a mental health facility shall not be kept in seclusion
unless —
(a) it is necessary for the protection, safety or well-being of —
(i) the patient; or
(ii) other persons with whom the patient would otherwise be in
contact;
(b) the use of seclusion has been —
(i) approved by the authorised psychiatrist; or
(ii) in the case of an emergency, authorised by the senior
psychiatric nurse on duty and notified to the authorised
psychiatrist without delay; and
(c) the period of seclusion does not exceed the period of time specified
in the approval.
(3) Where a patient is kept in seclusion the patient shall —
(a) if the patient is acutely disturbed, be visited at intervals of not more
than 15 minutes by a member of the nursing staff or a psychiatric
assistant and be examined at intervals of not more than 4 hours by a
member of the medical staff and, in other cases, be visited at
appropriate intervals by a member of the nursing staff or a
psychiatric assistant;
(b) be supplied with appropriate bedding and clothing;
(c) be provided with food and drink at the appropriate times;
(d) be provided with adequate toilet arrangements.
(4) Any person who keeps a patient in a mental health facility in seclusion in
contravention of this section commits an offence and is liable upon
conviction to a fine not exceeding $1,000.
(5) The authorised psychiatrist shall keep records of —
Section 40 Mental Health Act 2001
No. 8 of 2001 Page 22
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(a) the reasons why seclusion was used;
(b) the name of the person who approved or authorised the use of
seclusion;
(c) the name of the person who kept the patient in seclusion; and
(d) the period of time for which the patient was kept in seclusion.
(6) The Tribunal shall inspect these records at regular intervals.
40 Authority perform electroconvulsive therapy
(1) In this Part, “electroconvulsive therapy” means the application of
electric current to specific areas of the head to produce a generalised
seizure under general anaesthesia and the administration of a muscle
relaxing agent.
(2) A person shall not perform electroconvulsive therapy on a person without
having obtained that person's informed consent, unless the performance of
electroconvulsive therapy upon that person has been approved by the
Tribunal or unless section 42 applies.
(3) Any person who contravenes this section is liable upon conviction to a
fine not exceeding $10,000 or to a term of imprisonment not exceeding 10
years or both.
41 Tribunal approval of electroconvulsive therapy
The Tribunal may approve the performance of electroconvulsive therapy upon
an involuntary patient or a person who is subject to a community treatment order
but it shall not give its approval unless satisfied that —
(a) the person is not capable of giving informed consent; and
(b) two medical practitioners (at least one of whom is a psychiatrist)
have formed the opinion after considering the person's clinical
condition, history of treatment and any appropriate alternative
treatment to be administered.
42 Electroconvulsive therapy in emergencies
(1) The authorised psychiatrist may authorise the performance of
electroconvulsive therapy upon an involuntary patient without having
obtained the approval of the Tribunal if the authorised psychiatrist is of
the opinion that electroconvulsive therapy is necessary to save the life of
the person or to prevent the person from suffering irreparable harm.
(2) The authorised psychiatrist shall report electroconvulsive therapy
performed in accordance with subsection (1) to the Tribunal.
Mental Health Act 2001 Section 43
No. 8 of 2001
to
Page 23
43 Authority to perform clinical trials or experimental treatment
(1) A person shall not perform clinical trials or experimental treatment upon
an involuntary patient or a person who is subject to a community
treatment order without having obtained the approval of the Tribunal and
approval of any appropriate ethics committee.
(2) A person who contravenes this section commits an offence and is liable
upon conviction to a fine not exceeding $5,000.
PART VIII - INVOLUNTARY TREATMENT IN
THE COMMUNITY
44 Criteria for involuntary treatment in the community
The criteria for involuntary treatment in the community are —
(a) the person has a mental illness and requires treatment which is
available in the community; or
(b) as a result of mental illness the person is likely within the next
months to cause imminent harm to himself or others, or is likely to
suffer serious mental or physical deterioration unless treated,
and the person lacks the capacity to give informed consent to treatment for his
mental illness or he has unreasonably refused treatment for his mental illness.
45 Community treatment order
A community treatment order may be made by the Tribunal pursuant to this part
of the Act in respect of any person for whom an appropriate treatment plan has
been prepared who meets the criteria for involuntary treatment in the
community.
46 Contents of order
A community treatment order shall specify —
(a) the name and village of the person who is subject to the order;
(b) the healthcare agency which is to implement the order;
(c) the healthcare agency which is to review the community treatment
plan;
(d) the times and days of the week the person shall attend the
healthcare agency or be in attendance at his residence for treatment;
Section 47 Mental Health Act 2001
No. 8 of 2001 Page 24
to
(e) any medication or treatment the person is to receive;
(f) any rehabilitation, support or service the person is to receive; and
(g) such other information as the Tribunal thinks fit.
47 Application for order
An application for a community treatment order may be made to the Tribunal by
an authorised psychiatrist or an authorised medical practitioner.
48 Interim community treatment order
(1) An authorised psychiatrist may make an interim community treatment
order in relation to a person if he is satisfied that the person meets the
criteria for involuntary treatment in the community.
(2) An authorised psychiatrist who has made an interim community treatment
order shall, as soon as practicable after making the order, lodge an
application with the Tribunal for a community treatment order.
(3) The Tribunal shall within 7 days of receipt of an application under this
section conduct a hearing and, if it deems appropriate, make a community
treatment order.
49 Procedure
The Tribunal shall determine the venue and its own procedure for hearing any
application for a community treatment order or review of such order.
50 Duration of order
A community treatment order may be made for such period not exceeding 6
months and such order may be renewed from time to time by the Tribunal upon
further application by an authorised psychiatrist or authorised medical
practitioner.
51 Review of treatment plan
Where a person is subject to a community treatment order, an authorised
psychiatrist or an authorised medical practitioner shall examine the person and
review the community treatment plan on an appropriate regular basis.
Mental Health Act 2001 Section 52
No. 8 of 2001
to
Page 25
52 Discharge from order
If, on examination, an authorised psychiatrist or authorised medical practitioner
determines that the person no longer meets the criteria for involuntary treatment
in the community, he shall discharge the person from the order.
53 Review by Tribunal
A person subject to a community treatment order may at any time apply to the
Tribunal for a review of that order.
54 Discharge by Tribunal
Where, on an application or on its own motion, the Tribunal determines that a
person subject to a community treatment order no longer meets the criteria for
involuntary treatment in the community, it shall discharge that person from the
order.
55 Psychiatric case manager
The person in charge of a healthcare agency or an authorised psychiatrist or an
authorised medical practitioner shall appoint an appropriately qualified officer or
employee of the agency as the psychiatric case manager for each person
receiving treatment at that agency pursuant to a community treatment order.
56 Case manager's report
(1) Where a person has previously been subject to a community treatment
order, the psychiatric case manager shall, as soon as practicable after the
making of any subsequent order, make a written report to the person in
charge of the community healthcare agency as to the efficacy of the
previous order.
(2) As soon as practicable after the expiry of a community treatment order,
the psychiatric case manager shall make a written report to the person in
charge of the healthcare agency as to the efficacy of the order and such
report shall be considered by the Tribunal in determining any subsequent
application for a community treatment order in respect of that person.
57 Breach of order
Any person subject to a community treatment order is in breach of that order if
he refuses or fails to comply with the order and an authorised psychiatrist or an
authorised medical practitioner determines that —
Section 58 Mental Health Act 2001
No. 8 of 2001 Page 26
to
(a) the health care agency has taken all reasonable steps to implement
the order and to obtain the person's co-operation; and
(b) there is a significant risk of —
(i) harm to the person or another person; or
(ii) significant deterioration in the mental or physical condition
of the person.
58 Consequences of breach
(1) Where a breach of a community treatment order occurs, an authorised
psychiatrist —
(a) shall inform the person that a breach has occurred; and
(b) may cause the person to be involuntarily admitted to a mental
health facility.
(2) A person who has been informed in accordance with this section that a
breach has occurred is deemed to be a person who is absent without leave
from a mental health facility.
PART IX - PATIENTS SUBJECT TO THE CRIMINAL
OFFENCES ACT
59 Criteria for admission as a forensic patient
The criteria for admission as a forensic patient are —
(a) the person has a mental illness;
(b) as a result of that mental illness the person requires treatment which
is available at the mental health facility to which he is to be, or has
been, admitted; and
(c) as a result of that mental illness the person is likely to cause
imminent harm to himself or others, or is likely to suffer serious
mental or physical deterioration unless admitted to, or detained at, a
mental health facility and treated.
DIVISION 1 - ARRESTED UNCHARGED PERSON
60 Arrest
When a person is arrested and before the person is charged with an offence and a
police officer determines on reasonable grounds that the person may benefit
Mental Health Act 2001 Section 61
No. 8 of 2001
to
Page 27
from admission to and treatment in a mental health facility, the police officer
shall arrange for the person to be examined as soon as practicable by a medical
practitioner for assessment and determination as to whether the person meets the
criteria for involuntary admission to a mental health facility on the grounds of
mental illness, mental disorder or involuntary treatment in the community.
61 Decision not to charge
A police officer may determine not to charge a person who has been examined
by a medical practitioner in accordance with section 60.
62 Person not released
If after assessment a person is not made subject to an order or recommendation
in accordance with this Act, the police officer shall deal with him according to
law as soon as practicable.
DIVISION 2 - COURT REFERRAL
63 Powers of court
When a person is charged and brought before a court and the court determines
that the person may benefit from admission to and treatment in a mental health
facility, the court shall order that the person be taken to a mental health facility
for assessment in accordance with PART IV.
64 Interim treatment order
(1) Where a person is convicted and the court determines that the person may
benefit from admission for treatment in a mental health facility, the court
may make an interim treatment order that the person be admitted to a
mental health facility for a period not exceeding 4 weeks for the purpose
of assessment by an authorised psychiatrist and to permit the authorised
psychiatrist to prepare a report for the court.
(2) An interim treatment order may specify the person to take the convicted
person to the mental health facility and to the court.
(3) Before a court can make an interim treatment order, it shall be informed
by the authorised psychiatrist that the mental health facility to be
nominated in the order has the facilities to undertake the assessment.
65 Return of person to court
During the operation of an interim treatment order —
Section 66 Mental Health Act 2001
No. 8 of 2001 Page 28
to
(a) when the assessment is completed, and the person is not admitted to
the mental health facility in accordance with PART IV; or
(b) the assessment cannot continue as the mental health facility no
longer has the capacity to accept the person;
the authorised psychiatrist shall arrange for the convicted person to be returned
before the Court by the police.
66 Inclusion in the sentence
When the court imposes a penalty on a person subject to an order in accordance
with this Division, the time the person has spent in the mental health facility
shall be taken into account.
67 Treatment order
(1) A court may make a treatment order in relation to a person charged with
an offence where the penalty includes a term of imprisonment.
(2) The court may make a treatment order instead of imposing a sentence on
the person.
68 Evidence for treatment order
Before making a treatment order, a court shall have a certificate of an authorised
psychiatrist that states that the person satisfies the criteria for involuntary
admission to a mental health facility on the grounds of mental illness.
DIVISION 3 - DEPARTMENTAL TRANSFER
69 Request for assessment
(1) A person who is in lawful custody in a prison or other place of
confinement who desires to see a medical officer shall be reported without
delay to the Superintendent of Prison and the medical officer.
(2) The medical officer of the place of confinement shall assess the person
and make a report to the Superintendent of Prison and the authorised
psychiatrist of the nominated mental health facility as to whether the
person would benefit from an admission to a mental health facility.
70 Transfer
On the recommendation of the authorised psychiatrist, the Superintendent of
Prison may authorise the person's transfer to a nominated mental health facility.
Mental Health Act 2001 Section 71
No. 8 of 2001
to
Page 29
71 Termination of transfer
A transfer shall terminate and the person shall be returned to a prison when the
authorised psychiatrist or the Tribunal is of the opinion that the person is no
longer likely to receive any benefit from the admission or treatment.
72 Involuntary transfer
The Superintendent of Prison may order the transfer of a person in lawful
custody in a prison or other place of confinement to a mental health facility for
an involuntary admission on the grounds of mental disorder or mental illness.
73 Involuntary mental disorder transfer
Before making an involuntary mental disorder transfer order, the Superintendent
of Prison shall have a certificate from an authorised medical practitioner that
states that the practitioner is satisfied that —
(a) the person meets the criteria for involuntary admission to a mental
health facility on the grounds of mental disorder; and
(b) the person's admission would not present an unreasonable risk to
the safety of the person or any other person.
74 Termination of involuntary mental disorder transfer
An involuntary mental disorder transfer terminates —
(a) 7 days from the date of admission;
(b) if the authorised psychiatrist or the Tribunal orders the person's
return to prison; or
(c) if, after an assessment, the authorised psychiatrist determines that
the person meets the criteria for involuntary admission on the
grounds of metal illness and commences the procedures in PART
III.
75 Involuntary mental illness transfer
Before making an involuntary mental illness transfer order, the Superintendent
of Prison shall have —
(a) a certificate from an authorised medical practitioner which states
that —
(i) the person meets the criteria for involuntary admission to a
mental health facility on the grounds of mental illness; and
Section 76 Mental Health Act 2001
No. 8 of 2001 Page 30
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(ii) the person's admission would not present an unreasonable
risk to the safety of the person or any other person; and
(b) a report approving the admission from the authorised psychiatrist or
an authorised medical practitioner of the mental health facility to be
nominated in the proposed order.
76 Discharge
If the authorised psychiatrist or the Tribunal determines that the person should
be discharged from an involuntary admission, then the authorised psychiatrist or
the Tribunal shall order that the person be discharged and if the person is in
lawful custody, the person shall be returned to a prison.
77 Notification of term of imprisonment
The Superintendent of Prison shall notify in writing the authorised psychiatrist at
the mental health facility and the Tribunal of the date the person's term of
imprisonment is to expire.
78 Admission time
Any time spent in a mental health facility in accordance with this Part is to be
treated as if it were a period of imprisonment for the purposes of the person's
sentence and parole.
DIVISION 4 - SPECIAL VERDICT REFERRAL
79 Application of division
This division applies to persons who have been found by the court to be —
(a) unfit to be tried by reason of insanity under section 18, Criminal
Offences Act (Cap. 18);
(b) not guilty of an offence by reason of insanity under section 19,
Criminal Offences Act (Cap. 18) and
who has been ordered by the Court to be detained in safe custody pending the
decision of the Privy Council under section 20, Criminal Offences Act (Cap. 18).
80 Privy Council decision
Where the person has been found to be not guilty of an offence by reason of
insanity under section 19, Criminal Offences Act (Cap. 18) or found to be unfit
to be tried by reason of insanity under section 18, Criminal Offences Act (Cap.
Mental Health Act 2001 Section 81
No. 8 of 2001
to
Page 31
18), the Privy Council may order that the person be taken to a mental health
facility or admitted to a mental health facility as a forensic patient.
81 Review by Tribunal
The Tribunal shall review the person at intervals not exceeding 6 months whilst
he remains a forensic patient.
82 Application for review
The Tribunal may review the admission of a forensic patient at any time or after
receiving a written application from —
(a) the forensic patient;
(b) the Attorney General;
(c) the Privy Council; or
(d) the authorised psychiatrist.
83 Dismissal of frivolous or vexatious complaints
Where, at any stage in a review, the Tribunal is satisfied that an application is
frivolous or vexatious, it may dismiss the application.
84 Purpose of review
On a review of a forensic patient, the Tribunal shall consider whether the person
continues to meet the criteria for admission as a forensic patient, whether he
should be granted leave of absence subject to conditions, including his history of
compliance with conditions attached to any previous leave of absence and, if he
no longer meets the criteria for admission as a forensic patient, whether he meets
the criteria for involuntary treatment in the community and should be placed on
a community treatment order.
85 Tribunal order
Following a review, the Tribunal may —
(a) discharge the person as a forensic patient subject to any conditions
the Tribunal thinks fit;
(b) place him on a community treatment order;
(c) order his continuing admission as a forensic patient;
Section 86 Mental Health Act 2001
No. 8 of 2001 Page 32
to
(d) transfer him to another mental health facility if the authorised
psychiatrist at the proposed mental health facility approves of the
transfer;
(e) allow him leave of absence from the mental health facility, subject
to any conditions the Tribunal thinks fit; or
order that he undertake a programme of treatment, hospitalisation, supervision or
rehabilitation with such a programme being consistent with the objectives of
imposing the least restriction on his freedom of choice and movement of
protecting his health or safety and the safety of other persons.
86 Notification of order
After making any order under section 85, the Tribunal shall notify the Attorney
General and the appropriate court of the terms of the order in writing.
87 Breach of conditions
(1) The Tribunal may order that a person appear before it if it thinks that the
person may be in breach of a condition imposed at the time the person was
discharged from a mental health facility as a forensic patient.
(2) The Tribunal may order that the person be subject to involuntary
admission on the grounds of mental illness or that the person comply with
certain conditions.
(3) A police officer is authorised to apprehend the person and deliver him to a
mental facility if an order for involuntary admission is made under
subsection (2).
(4) The person shall be informed in writing of the particulars of the alleged
breach of the conditions before the hearing.
(5) The Tribunal shall conduct the hearing no later than 7 days after the
person is detained in a mental health facility.
(6) After conducting a hearing, the Tribunal may order that the person be
subject to involuntary admission on the grounds of mental illness or that
the person be discharged subject to conditions.
88 Right of appeal
(1) A forensic patient may appeal to the Supreme Court against a
determination of the Tribunal for the failure or refusal of the Tribunal to
make a determination.
Mental Health Act 2001 Section 89
No. 8 of 2001
to
Page 33
(2) The Court has all the powers of the Tribunal to hear and determine an
appeal and to may make such order as it thinks fit.
PART X - PATIENTS' RIGHTS AND COMPLAINTS
MECHANISMS
89 Information about patient's right
(1) Every patient of a mental health facility and person subject to a
community treatment order shall be given an explanation of his rights
under this Act, in a form he can understand.
(2) Where it appears to the person providing the information and explanation
that the person intended to receive it is unable to understand it, this fact
shall be recorded and included in the information put before the Tribunal.
90 Information may be required
The authorised psychiatrist or the person in charge of a health care agency
responsible for treating a person subject to a community treatment order shall
provide the person or his representative with particulars of the types of
medication, the dosages, expected benefits and side effects of each medication
that is administered to the person.
91 Discharge planning
The authorised psychiatrist shall ensure that a person upon discharge from a
mental health facility has appropriate arrangements for accommodation and any
necessary continuing psychiatric treatment. He shall report to the Tribunal if he
is dissatisfied with the arrangements that are available.
92 Privacy and confidentiality
(1) A letter, other postal article, fax or e-mail written to or by a forensic
patient who is not a forensic patient shall be forwarded unopened to the
person to whom it is addressed.
(2) A letter, other postal article, fax or e-mail written to or by a forensic
patient shall subject to any conditions imposed by the Tribunal be
forwarded without being opened to the person to whom it is addressed.
(3) A telephone call to or by any patient shall, subject to any condition
imposed by the Tribunal, be made or received in private.
Section 93 Mental Health Act 2001
No. 8 of 2001 Page 34
to
(4) Information, contained in records kept by mental health facilities and
health care agencies, that identifies the fact that a person has been a
patient at, or received treatment from, the facility or agency and that
relates to the nature or other details of admission or treatment shall not be
disclosed, directly or indirectly, to any other person except to fulfil any
requirement under this Act or any other legislation.
A person who contravenes this section shall be liable upon conviction to a
fine not exceeding $500.
93 Exceptions
The prohibition upon disclosure of information in section 92 shall not apply to
the provision of information —
(a) with the prior consent of the person to whom the information relates
or, if that person has died, with the consent of his next of kin;
(b) as required by the Court in the course of criminal proceedings;
(c) relevant to continuing care and/or treatment to a relative or other
person who is considered to be closely involved in continuing care
or treatment of the person, where disclosure is necessary for the
protection of the person;
(d) for the purposes of medical or social research, provided that the
Minister is satisfied that the disclosure is necessary and is not
detrimental to the interest of the person to whom the information
relates; or
(e) that the Minister considers to be in the public interest.
94 Procedures for handling complaints
The authorised psychiatrist of the mental health facility or the person in charge
of the health care agency shall ensure that accessible procedures are established
for the purpose of handling complaints.
95 Acknowledgement of complaint
The authorised psychiatrist of the mental health facility or the person in charge
of the health care agency shall ensure that a person who has made a complaint
under section 94 receives, as soon as reasonably practicable, a written
acknowledgement and is kept informed of the progress of investigation or other
action on the complaint.
Mental Health Act 2001 Section 96
No. 8 of 2001
to
Page 35
96 Documentation of complaints
The authorised psychiatrist of the mental health facility or person in charge of
the health care agency shall ensure full and accurate documentation of all
complaints, including the nature of the complaint and any investigation or other
action taken in relation to it.
97 Report to Mental Health Advisory Committee
The authorised psychiatrist of the mental health facility or person in charge of
the health care agency shall forward a report detailing the number and nature of
complaints received by the facility twice in each year to the Mental Health
Advisory Committee.
98 Criminal offence
Where following internal investigation of a complaint the authorised psychiatrist
or the person in charge of the health care agency has reason to believe that a
criminal offence has been committed shall inform the police.
99 Professional misconduct
Where following internal investigation of a complaint the authorised psychiatrist
or person in charge of the health care agency has reason to believe that a breach
of medical, ethics or of proper standards of professional conduct has been
committed, he shall inform the appropriate board with power to deal with
matters of conduct and discipline.
100 Community visitors
The Minister may appoint persons with appropriate skills and experience as
community visitors for each authorised mental health facility and health care
agency under this Act.
101 Appointment to more than one facility
A person may be a community visitor at more than one facility or agency.
102 Tenure and remuneration
Each community visitor shall —
(a) hold office for a period of three years;
(b) be eligible for reappointment; and
Section 103 Mental Health Act 2001
No. 8 of 2001 Page 36
to
(c) be entitled to be paid such fees and travelling expenses and other
allowances as the Minister, having consulted the Mental Health
Advisory Committee, thinks fit.
103 Resignation and removal of community visitors
The Minister may remove a community visitor from office for —
(a) incapacity to carry out his;
(b) neglect of duty;
(c) misconduct; or
(d) ceasing to have the necessary status or qualifications.
104 Restrictions on appointment
A person shall not be appointed as a community visitor if he —
(a) holds any appointment or employment with the Ministry of Health;
or
(b) has a direct interest in any contact with the Ministry of Health or a
mental health facility or health care agency.
105 Inquiry functions
The functions of a community visitor are to visit mental health facilities and
health care agencies to which the community visitor is appointed and to inquire
into any matter that he considers appropriate having regard to the principles and
objectives of this Act and any other matter as directed by the Minister.
106 Complaint functions
Community visitors shall —
(a) be accessible to hear complaints by persons subject to this Act or
their representatives; and
(b) assist any person subject to this Act to make, and where appropriate
present on that person's behalf, an application, further complaint or
appeal under this Act.
107 Visiting duties
(1) A community visitor may visit a mental health facility or health care
agency with or without any previous notice at such times and for such
periods as the community visitor thinks fit, subject to subsection (2).
Mental Health Act 2001 Section 108
No. 8 of 2001
to
Page 37
(2) The Minister may direct a community visitor to visit a mental health
facility or health care agency.
108 Powers of inspection
A community visitor is entitled when conducting a visit for purposes under this
Act to —
(a) inspect any part of the premises;
(b) see any person who is receiving treatment or care or other services
under this Act unless that person has asked not to be seen;
(c) make inquiries relating to the admission, detention, care, treatment
and control of persons receiving treatment or care under this Act;
and
(d) inspect any records required to be kept under this Act.
109 Assistance to community visitor
Where a community visitor wishes to perform or exercise any power, duty or
function under this Act, the authorised psychiatrist and every member of the
staff or management of a mental health facility or health care agency shall
provide the community visitor with such reasonable assistance as the community
visitor requires to perform or exercise that power, duty or function effectively.
110 Responsibilities to report
Where the community visitor considers to require redress or resolution, he may
provide the authorised psychiatrist of the facility or person in charge of the
health care agency with a report which may include suggested options for
redress and resolution.
111 Report to Mental Health Advisory Committee
(1) The community visitor shall present a written report once every three
months to the Mental Health Advisory Committee.
(2) Nothing in subsection (1) shall prevent a community visitor from
presenting a report for the Mental Health Advisory Committee at any
time.
Section 112 Mental Health Act 2001
No. 8 of 2001 Page 38
to
112 Minister may require report
The Minister may require a community visitor to report to the Minister on any
matter specified, at such time and in such manner as the Minister directs.
113 Ability to report to Minister
A community visitor or the Mental Health Advisory Committee may at any time
submit a report to the Minister.
114 Provision of information
The authorised psychiatrist of the mental health facility or the person in charge
of the health care agency shall ensure that all persons receiving treatment or care
at that facility or agency are informed of the right to see a community visitor and
how the community visitor may be contacted.
115 Request to see community visitor
(1) When any person who is receiving treatment, care or other services under
this Act asks to see a community visitor, the authorised psychiatrist of the
mental health facility or the person in charge of the health care agency
shall notify the community visitor in writing within 48 hours of the
request.
(2) The community visitor shall respond within one week of such notification.
116 Unreasonable requests
Where the authorised psychiatrist of a mental health facility, the person in
charge of a health care agency or a community visitor has grounds to believe
that a person under his care is making unreasonable or unwarranted complaints
or requests, he may apply to the Tribunal for a written direction that such
complaints or requests be treated in some manner not otherwise provided under
this Act.
PART XI - ADMINISTRATION
117 Declaration of Mental health facilities
(1) The Minister may by a notice published in the Gazette declare any
premises for the care and treatment of persons who are mentally ill to be a
mental health facility or a health care agency.
Mental Health Act 2001 Section 118
No. 8 of 2001
to
Page 39
(2) The Minister shall not make a declaration under this section unless the
Mental Health Advisory Committee has reported that the proposed mental
health facility or health care agency will provide an appropriate standard
of treatment and care.
118 Appointment and role of authorised psychiatrist
The Director of Health shall appoint a psychiatrist as the authorised psychiatrist
of each health care facility or a psychiatrist who is the authorised psychiatrist or
a medical practitioner as the authorised medical practitioner of each health care
agency who shall have the functions, duties and powers given by this Act and
may, in writing, delegate to any other psychiatrist any such function, duty or
power.
119 Approved Absence
(1) The authorised psychiatrist of a mental health facility may allow a
forensic patient to be absent from the mental health facility for such
period and subject to such conditions as the authorised psychiatrist thinks
fit in order to receive medical or dental treatment.
(2) The authorised psychiatrist of a mental health facility may allow an
involuntary patient to be absent from the mental health facility and subject
to such conditions as the authorised psychiatrist thinks fit in order to
receive medical or dental treatment.
120 Unapproved absence
A forensic patient or an involuntary patient who is absent from a mental health
facility, otherwise than in accordance with section 119 may be apprehended at
any time by —
(1) the authorised psychiatrist or any person acting on the authority of
the authorised psychiatrist; or
(2) a member of the police force;
and shall be conveyed to a mental health facility forthwith.
Section 121 Mental Health Act 2001
No. 8 of 2001 Page 40
to
PART XII -THE MENTAL HEALTH ADVISORY COMMITTEE
121 Mental Health Advisory Committee
(1) The Minister shall appoint a Mental Health Advisory Committee to advise
on any matter relating to the provisions of this Act and to the care and
well-being of persons with mental illness or mental disorder.
(2) The Committee shall meet at least quarterly.
122 Membership of Mental Health Advisory Committee
The Mental Health Advisory Committee shall consist of the following ex-
officio, appointed and nominated members —
(a) The Director of Health or person acting in such capacity who shall
be Chairman;
(b) The authorised psychiatrist of Vaiola Hospital or person acting in
such capacity;
(c) The Superintendent of Prison;
(d) a district officer appointed by the Minister;
(e) a mental health welfare officer appointed by the Minister upon
nomination by the authorised psychiatrist of Vaiola Hospital;
(f) a nominee from the Tonga Red Cross Society;
(g) a senior teacher with experience in the education of mentally ill
persons appointed by the Minister;
(h) a law practitioner nominated by the Attorney General; and
(i) a member of the community appointed by the Minister.
123 Tenure
(1) All appointed and nominated members shall hold office for two years and
may serve more than one term.
(2) The appointment or nomination of any member may be cancelled or
withdrawn by the person or body that appointed or nominated such
person, and another person shall be appointed or nominated in place of
such a member for the remaining period of office.
(3) Any appointed or nominated member may resign by giving notice of such
resignation to the person or body that made the appointment or
nomination, and such person or body shall appoint or nominate another
person for the remaining period of office.
Mental Health Act 2001 Section 124
No. 8 of 2001
to
Page 41
124 Secretary
The Minister shall appoint a mental health practitioner as Secretary to the
Committee.
125 Report to National Health Development Committee
The Committee shall present an annual report of its activities to the National
Health Development Committee.
126 Immunity
The Minister, Chairman, Secretary or any Committee member shall not be liable
for any act performed in good faith, under this Act.
PART XIII - MENTAL HEALTH REVIEW TRIBUNAL
127 Composition
There shall be a Mental Health Tribunal consisting of the President; and 2 other
members.
128 President
(1) The President shall be a member of the magistracy who has a law degree
and be appointed by the Cabinet acting on the advice of the Chief Justice.
(2) The other members shall be appointed by Cabinet on the advice of the
Minister and shall be —
(a) a psychiatrist or medical practitioner with experience in psychiatric
medicine; and
(b) a person, not being a medical practitioner or lawyer, with other
relevant skills and experience.
129 Terms and conditions of appointment
The President and each member shall hold office for such period, not exceeding
5 years, as is specified in the instrument of appointment, and shall be eligible for
reappointment.
Section 130 Mental Health Act 2001
No. 8 of 2001 Page 42
to
130 Termination of appointment
(1) The Cabinet may terminate the appointment of the President or a member
because of —
(a) misbehaviour;
(b) neglect of duty;
(c) incapacity to carry out his duties; or
(d) ceasing to have the necessary status or qualification.
131 Quorum
The quorum at meetings of the Tribunal shall be 2 provided that, in exceptional
circumstances, the Tribunal may be constituted by one member where the
President considers it expedient.
132 Functions
The functions of the Tribunal shall —
(a) review the admission of involuntary patients to a mental health
facility;
(b) establish the period for a further review of all involuntary and
forensic patients within 6 months from the date of the initial review;
(c) establish the period for review of all other persons admitted to a
mental health facility, within 6 months from the date of admission;
(d) hear any appeal against an involuntary admission or a continued
involuntary admission without delay;
(e) make, vary or revoke every community treatment orders;
(f) review every community treatment order at least once in every 6
months;
(g) review any patient's capacity to consent to admission;
(h) authorise the administration of a plan of treatment for a person
deemed incapable of giving informed consent;
(i) decide the appropriate mental health facility for a person where a
plan of treatment has been authorised;
(j) order that the discharge of a person be deferred for a period of not
more than 7 days;
(k) provide the person and the person's representative with a written
statement of a decision within 21 days of making the decision;
Mental Health Act 2001 Section 133
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(l) provide the person and the person's representative with a written
statement of reasons for any decision within 3 days of a request by
the person or the representative; and
(m) make any other relevant or appropriate order.
133 Application of rule of evidence
(1) In any review, the Tribunal —
(a) shall not be bound by the rules of evidence;
(b) shall conduct the review with as little formality and technicality,
and with as much expedition, as the requirements of this Act and a
proper consideration of the matters before the Tribunal permit; and
(c) shall not adjourn the review for a period not longer than 7 days.
(2) The person presiding at a review shall decide on the admissibility of
evidence and any other questions of law or procedure.
134 Right of appearance and representation
(1) A person the subject of review may appear personally or be represented
by a law practitioner or other representative.
(2) The Tribunal may hear and decide a review in the absence of the person or
his representative provided it is satisfied that he has been given reasonable
notice of the hearing and a reasonable opportunity to attend.
135 Access to medical records
(1) A person the subject of review shall be given access to their medical
records and any reports that are before the Tribunal for the purposes of the
review.
(2) The Tribunal may order that a medical record or report or any part of a
medical record report shall not be disclosed to a person where it thinks
that the disclosure would cause serious harm to the person's health or put
the safety of another person at risk.
(3) The Tribunal may order that a medical record or report or any part of a
medical record or report shall be disclosed to the person's representative
and not to the person.
(4) The person refused access may apply to the Supreme Court for a review
of any order refusing disclosure.
Section 136 Mental Health Act 2001
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136 Evidence
The person the subject of review may —
(a) call and produce any relevant evidence; and
(b) request any person to attend the hearing;
provided that the Tribunal may refuse any evidence or attendance of any person
if it is satisfied that it may cause any serious harm to the health of the person the
subject of the review or put the safety of some other person at risk.
137 Interpreter
Where the person the subject of the review does not speak Tongan or English to
a level capable of understanding the hearing, then the Tribunal shall provide an
interpreter for the preparation and during the hearing at no cost to the person.
138 Inquiries may be held in public
(1) Subject to subsection (2), all hearings shall be held in camera.
(2) The Tribunal may, on the application of the person the subject of the
review or the person's representative, if it is satisfied that it is appropriate
to do so, direct that a hearing or part of a hearing, be held in public. The
Tribunal shall only make such a declaration if —
(a) the person the subject of the review has indicated his approval;
(b) the privacy of the parties to the review will not be adversely
affected; and
(c) it will not result in serious risk to the health of the person the
subject of the review or risk the safety of others.
139 Record of proceedings
(1) The Tribunal shall make and keep for a reasonable period a record on
audio-tape of all its proceedings. Subject to subsection (2), the Tribunal
shall provide an audio-tape record of proceedings to the person the subject
of the review or the person's representative if requested by the person or
the person's representative at no cost.
(2) The Tribunal may refuse to release a record of proceedings or part of such
record if it is satisfied that the release would cause serious harm to the
health of the person the subject of the review or would put the safety of
some other person at risk.
(3) The Tribunal, having refused to release a record or part of a record, may
release it to the person's representative and not to the person.
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140 Making an application for review
(1) Subject to subsection (2), a person involuntarily admitted to a mental
health facility or any interested person may apply in writing to the
Tribunal for a review of that admission.
(2) After conducting a review, the Tribunal may order that a further review
shall not be made before a specified date.
141 Appeals
(1) A person affected by a decision or an order of the Tribunal or by the
failure within a reasonable time of the Tribunal to make a decision or an
order may appeal to the Court.
(2) The Court may —
(a) affirm, vary or set aside the decision or order of the Tribunal;
(b) make any decision or order which the Tribunal could have made;
(c) remit the matter to the Tribunal for further consideration; or
(d) make any other order it thinks fit.
142 Power of Supreme Court
(1) If in hearing any appeal, the Court considers that a person has been
admitted to a mental health facility as an involuntary or forensic patient
and the admission is not in accordance with this Act, the Court shall order
that the person be brought before it for examination.
(2) If, after examining the person or arranging for an independent person to
examine the person, the Court decides that the person has been admitted
as an involuntary patient and that the admission is not in accordance with
this Act, the Court shall order that the person be discharged from the
facility immediately.
(3) If, after examining the person or arranging for an independent person to
examine the person, the Court decides that the person is not a forensic
patient and that the admission is not in accordance with this Act, the Court
shall order that the person be transferred to a prison immediately.
PART XIV -MISCELLANEOUS
143 Repeal and savings
(1) The Mental Health Act 1992 is hereby repealed.
Section 144 Mental Health Act 2001
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(2) Any act, direction, order, approval or decision done, made or given before
the commencement of this Act shall be deemed to have been done, made
or given under this Act and shall continue in full force and effect until
amended or revoked.
144 Review of existing patients
(1) In this section —
“prescribed period” means the period ending 6 months after the
commencement of this Act or ending at a subsequent day as may be
determined by the Minister and specified in a notice published in the
Gazette.
(2) A person admitted and detained at the commencement of this Act as —
(a) any mentally disordered person detained under a detention order
under section 11 (1) of the Mental Health Act 1992 shall be deemed
to be an involuntary patient admitted under this Act; and
(b) a person detained under a criminal detention order under section 13
(1) of the Mental Health Act 1992 shall be deemed to be a forensic
patient admitted under this Act —
for the prescribed period or until the admission or detention (if sooner) is
reviewed under subsection (3) or (4).
(3) Within the prescribed period, the authorised psychiatrist at each mental
health facility shall review the admission of each involuntary patient to
which subsection (2) applies and cause the person to be admitted as a
patient in accordance with this Act or discharged.
(4) Within the prescribed period, the authorised psychiatrist shall review the
detention of each forensic patient to which subsection (2) applies in
accordance with subsection (5).
(5) Where the authorised psychiatrist is satisfied that the continued detention
of a person as a forensic patient is not necessary, the authorised
psychiatrist may order that the person be discharged as a forensic patient
and returned to a prison.
145 Regulations
The Minister may, with the consent of Cabinet, make regulations prescribing
matters necessary or convenient to be made for carrying out or giving effect to
this Act.
Passed by the Legislative Assembly this 11 day of July, 2001.
