Western Australian Consolidated Acts

MENTAL HEALTH ACT 1996 - NOTES

Notes

¹ This reprint is a compilation as at 1 July 2011 of the Mental Health Act 1996 and includes the amendments made by the other written laws referred to in the following table ^1a. The table also contains information about any reprint.

Compilation table

Short title	Number and year	Assent	Commencement
Mental Health Act 1996 3	68 of 1996	13 Nov 1996	s. 1 and 2: 13 Nov 1996; Act other than s. 1 and 2: 13 Nov 1997 (see s. 2(2))
Statutes (Repeals and Minor Amendments) Act (No. 2) 1998 s. 48	10 of 1998	30 Apr 1998	30 Apr 1998 (see s. 2(1))
Corporations (Consequential Amendments) Act 2001 Pt. 38	10 of 2001	28 Jun 2001	15 Jul 2001 (see s. 2 and Gazette 29 Jun 2001 p. 3257 and Cwlth Gazette 13 Jul 2001 No. S285)
Corporations (Consequential Amendments) Act (No. 3) 2003 Pt. 9 4	21 of 2003	23 Apr 2003	11 Mar 2002 (see s. 2 and Cwlth Gazette 24 Oct 2001 No. GN42)
Acts Amendment (Equality of Status) Act 2003 Pt. 42	28 of 2003	22 May 2003	1 Jul 2003 (see s. 2 and Gazette 30 Jun 2003 p. 2579)
Sentencing Legislation Amendment and Repeal Act 2003 s. 80	50 of 2003	9 Jul 2003	15 May 2004 (see s. 2 and Gazette 14 May 2004 p. 1445)
Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 s. 51	65 of 2003	4 Dec 2003	1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5722)
Reprint 1: The Mental Health Act 1996 as at 6 Aug 2004 (includes amendments listed above)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 81 5	55 of 2004	24 Nov 2004	1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 82	84 of 2004	16 Dec 2004	2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))
Psychologists Act 2005 Sch. 3 cl. 8	28 of 2005	12 Dec 2005	4 May 2007 (see s. 2 and Gazette 4 May 2007 p. 1963)
Occupational Therapists Act 2005 Sch. 3 cl. 4	42 of 2005	19 Dec 2005	1 Aug 2007 (see s. 2 and Gazette 31 Jul 2007 p. 3789)
Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 9 Div. 9 6	28 of 2006	26 Jun 2006	1 Jul 2006 (see s. 2 and Gazette 27 Jun 2006 p. 2347)
Nurses and Midwives Act 2006 Sch. 3 cl. 14	50 of 2006	6 Oct 2006	19 Sep 2007 (see s. 2 and Gazette 18 Sep 2007 p. 4711)
Reprint 2: The Mental Health Act 1996 as at 12 Jan 2007 (includes amendments listed above except those in the Psychologists Act 2005, Occupational Therapists Act 2005 and the Nurses and Midwives Act 2006)
Legal Profession Act 2008 s. 680	21 of 2008	27 May 2008	1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511)
Medical Practitioners Act 2008 Sch. 3 cl. 34	22 of 2008	27 May 2008	1 Dec 2008 (see s. 2 and Gazette 25 Nov 2008 p. 4989)
Health Practitioner Regulation National Law (WA) Act 2010 s. 109-111 and 112(1)	35 of 2010	30 Aug 2010	18 Oct 2010 (see s. 2(b) and Gazette 1 Oct 2010 p. 5075-6)
Public Sector Reform Act 2010 s. 89	39 of 2010	1 Oct 2010	1 Dec 2010 (see s. 2(b) and Gazette 5 Nov 2010 p. 5563)
Reprint 3: The Mental Health Act 1996 as at 1 Jul 2011 (includes amendments listed above)

^1a On the date as at which this reprint was prepared, provisions referred to in the following table had not come into operation and were therefore not included in compiling the reprint. For the text of the provisions see the endnotes referred to in the table.

Provisions that have not come into operation

Short title	Number and year	Assent	Commencement
Health Practitioner Regulation National Law (WA) Act 2010 s. 112(2) 7	35 of 2010	30 Aug 2010	To be proclaimed (see s. 2(b))

² Repealed by the Mental Health (Consequential Provisions) Act 1996.

³ The Mental Health (Consequential Provisions) Act 1996 Pt. 12 Div. 2 (s. 53-72 inclusive) reads as follows:

Division 2 — Transitional

53. Interpretation

In this Division —

commencement means the commencement of the Mental Health Act 1996;

new Act means the Mental Health Act 1996;

repealed Act means the Mental Health Act 1962.

54. Interpretation Act 1984 not affected

The provisions of this Division do not affect the application of the Interpretation Act 1984 to and in relation to the repeal effected by section 51.

55. Investigations under section 7

Any investigation under section 7 of the repealed Act —

(a) begun by the Minister; or

(b) which a person has been appointed by the Minister to conduct,

before the commencement may continue and be completed as if the repealed Act had not been repealed.

56. Authorised hospitals

A building, place or hospital or part of a building, place or hospital that is immediately before the commencement an approved hospital under section 19(3) of the repealed Act is to be taken to be an authorised hospital under the new Act.

57. Licences for private psychiatric hostels

An approval and a licence under Part IIIA of the repealed Act that is in force immediately before the commencement in respect of a private psychiatric hostel —

(a) is to be taken to be an approval and a licence required by Part IIIB of the Hospitals and Health Services Act 1927; and

(b) after the commencement that Part applies to the approval and the licence as if they had been given or issued under that Part.

58. Register of psychiatrists

(1) The register of psychiatrists in existence under section 89 of the repealed Act immediately before the commencement is to be treated as the register required by section 17 of the new Act.

(2) Subsection (1) does not limit the Medical Board’s powers to add names to and remove names from the register under section 17 of the new Act.

59. Referrals under section 28(1)

(1) A referral which immediately before the commencement has effect under section 28(1) of the repealed Act may be acted upon as if it were a referral under section 29(2)(a) of the new Act.

(2) The time limit of 14 days under section 28(1) of the repealed Act between the examination of the person and reception into an authorised hospital continues to apply for the purposes of the new Act.

60. Persons under observation, s. 28(3) and 34(1)

(1) A person who immediately before the commencement —

(a) is in an approved hospital for observation under section 28(3) or 34(1) of the repealed Act; but

(b) has not been admitted,

is to be regarded as a person received into an authorised hospital under section 36 of the new Act.

(2) Despite section 36 of the new Act, the person may be detained for the 72 hour period allowed under section 28(3) or 34(1) of the repealed Act.

61. Orders under section 29

(1) If immediately before the commencement —

(a) an order has been made under section 29 of the repealed Act; but

(b) the person has not been received into an approved hospital,

the order may be carried out despite the repeal of the repealed Act.

(2) Where subsection (1) applies the person is to be received into an authorised hospital under section 36 of the new Act as if there had been a referral under section 29(2)(a) of the new Act.

(3) Section 37A of the repealed Act, despite its repeal, continues to apply to an order referred to in subsection (1) and for that purpose the reference to the Director in section 37A(2) is to be read as a reference to the Chief Psychiatrist.

62. Orders under section 30(1)

(1) If immediately before the commencement —

(a) an order has been made under section 30(1) of the repealed Act; but

(b) the person has not been examined by a medical practitioner,

the order is to be carried out as soon as is practicable despite the repeal of the repealed Act.

(2) When the person has been examined —

(a) section 32 of the repealed Act does not apply; and

(b) the person may only be received into an authorised hospital in accordance with Division 1 of Part 3 of the new Act.

(3) Subject to subsection (2)(b), the person is to be released following the examination.

63. Persons in custody under section 30(2)

(1) If immediately before the commencement a person —

(a) has been apprehended under subsection (2) of section 30 of the repealed Act; but

(b) the steps provided for by that subsection have not been completed,

those steps are to be completed as soon as is practicable despite the repeal of the repealed Act.

(2) However, on examination by a medical practitioner under section 30(3) of the repealed Act —

(a) section 32 of the repealed Act does not apply; and

(b) the person may only be received into an authorised hospital in accordance with Division 1 of Part 3 of the new Act.

(3) Subject to subsection (2)(b), the person is to be released following the examination.

64. Warrants under section 31(2)

(1) If immediately before the commencement —

(a) a warrant has been issued under subsection (2) of section 31 of the repealed Act; but

(b) the steps provided for by that subsection have not been completed,

those steps are to be completed as soon as is practicable despite the repeal of the repealed Act.

(2) However, on the execution of the warrant —

(a) sections 31(3) and 32 of the repealed Act do not apply; and

(b) the person may only be received into an authorised hospital in accordance with Division 1 of Part 3 of the new Act.

65. Persons on remand for examination

If immediately before the commencement a person is remanded in custody under an order made under section 36 of the repealed Act, then on the commencement —

(a) that order continues to have effect as if the repealed Act had not been repealed; and

(b) when the person under that section is returned to his or her former custody, the Criminal Law (Mentally Impaired Defendants) Act 1996 applies if necessary.

66. Patients detained, other than security patients

(1) A person who —

(a) was admitted to an approved hospital under section 28(4) or 34(2) of the repealed Act; and

(b) immediately before the commencement is detained in an approved hospital under section 38(2) of the repealed Act,

is to be regarded as a person detained in an authorised hospital as an involuntary patient by force of an order under section 43(2)(a) of the new Act.

(2) The Mental Health Review Board is to review the case of each person to whom subsection (1) applies, and who is still detained, not later than —

(a) the day on which he or she could have been automatically discharged under section 39(1) of the repealed Act;

(b) the day on which the patient’s status would have come to an end under section 39(2) of the repealed Act; or

(c) the 28th day after the commencement,

whichever is the latest.

(3) The review is to be carried out under Division 2 of Part 6 of the new Act, and after that review periodic reviews are to be carried out under section 139 of that Act.

(4) For the purposes of this section the person in charge of an authorised hospital is to give notice in writing to the Registrar of —

(a) the names of all patients to whom subsection (1) applies; and

(b) particulars of the relevant days under subsection (2).

(5) A notice under subsection (4) is to be given not later than the 28th day after the commencement.

67. Leave of absence

A grant of leave of absence in force under section 42 of the repealed Act immediately before the commencement is to be regarded as leave of absence granted under section 59 of the new Act.

68. Absence without leave

If immediately before the commencement a person is absent without leave in terms of section 42(4) of the repealed Act the person is to be regarded as being absent without leave in terms of section 57 of the new Act.

69. Patients discharged to after-care

(1) If immediately before the commencement a person is under section 43 or 45 of the repealed Act a patient discharged to after-care, the period of after-care continues under the repealed Act as if it had not been repealed.

(2) The Chief Psychiatrist is to ensure that each person to whom subsection (1) applies is examined by a psychiatrist not later than —

(a) the day on which he or she could have been automatically discharged under section 39(1) of the repealed Act;

(b) the day on which the patient’s period of after-care would have come to an end under section 43 or 45 of the repealed Act; or

(c) the 14th day after the commencement,

whichever is the latest.

(3) A psychiatrist who examines a person under subsection (2) is to determine, having regard to section 26 of the new Act, whether the person —

(a) should be an involuntary patient under the new Act; or

(b) should be discharged from status as a patient.

(4) If the psychiatrist determines that subsection (3)(a) applies, he or she is to make an order under section 43(2)(b) of the new Act.

(5) If the psychiatrist determines in writing that subclause (3)(b) applies the person is by that determination discharged from any status as a patient.

70. Security patients

(1) If immediately before the commencement a person is in an approved hospital because of —

(a) a direction made under section 47(1) of the repealed Act; or

(b) an order made by the Governor under section 48 of the repealed Act,

on the commencement the person is to be taken —

(c) to be a mentally impaired defendant under Part 5 of the Criminal Law (Mentally Impaired Defendants) Act 1996; and

(d) to be in that hospital because of a decision of the Mentally Impaired Defendants Review Board under that Act,

and Part 5 of that Act applies accordingly.

(2) If immediately before the commencement a person, under an order made by the Governor under section 48 of the repealed Act, is liberated subject to any terms and conditions, on the commencement —

(a) the person is to be taken to be a mentally impaired defendant (as defined in the Criminal Law (Mentally Impaired Defendants) Act 1996) who has been released on conditions by the Governor under Part 5 of that Act; and

(b) Part 5 of that Act applies accordingly.

71. Application to Court

(1) If an application under section 55 of the repealed Act has been made but not disposed of before the commencement, the application may be completed after the commencement as if that section had not been repealed.

(2) In determining any such application the Court may make any order relevant to the operation of the new Act that it thinks fit.

72. Transitional regulations

(1) If there is no sufficient provision in this Part for dealing with a matter that needs to be dealt with for the purpose of the transition from the repealed Act to —

(a) the new Act; or

(b) the Hospitals and Health Services Act 1927 as amended by this Act,

regulations may prescribe all matters that are required or necessary or convenient to be prescribed for dealing with the matter.

(2) Regulations under subsection (1) may provide that specific provisions of the new Act or of subsidiary legislation made under the new Act —

(a) do not apply; or

(b) apply with or without specified modifications,

to or in relation to any matter or thing.

(3) Regulations under subsection (1) may have effect before the day on which they are published in the Gazette.

(4) To the extent that a regulation under subsection (1) has effect before the day of its publication in the Gazette, it does not —

(a) affect in a manner prejudicial to any person (other than the State), the rights of that person existing before the day of its publication; or

(b) impose liabilities on any person (other than the State) in respect of anything done or omitted to be done before the day of its publication.

⁴ The Corporations (Consequential Amendments) Act (No. 3) 2003 s. 2-4 contain a validation provision that may be relevant to this Act.

⁵ The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.

Defined Terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined Term Provision(s)
act done 213(5)
affected person 175
agreement 86
authorised hospital 3
authorised medical practitioner 3
authorised mental health practitioner 3
Board 3
CEO 3
Chief Psychiatrist 3
community 3
community support services 172
community treatment order 3
Council of Official Visitors 3
department 3
document 3
electroconvulsive therapy 92
emergency psychiatric treatment 92, 113(1)
executive officer 175
funding and services agreement 172
hospital 3
informed consent 92
initial order 138(1)
inspect 3
involuntary patient 3
lawyer 3
legal practitioner 3
mechanical bodily restraint 121
medical practitioner 3
mental health practitioner 3
Mental Health Review Board 3
mental illness 3
mentally impaired accused 3
Mentally Impaired Accused Review Board 3
official visitor 3
panel 175
participants 133(3)
patient 3, 163
power to which this Division applies 193
prescribed financial market 193
President 3
prison 3
private hospital 3
private psychiatric hostel 175
psychiatric health service 13(6)
psychiatric treatment 3
psychiatrist 3
psychologist 3
psychosurgery 92, 100(1)
public hospital 3
referrer 28
Registrar 3
related person 193
relative 3
relevant determination 141(2)
relevant document 160(1)
relevant interest 193
relevant premises 13(6)
seclusion 116
senior mental health practitioner 3
substantial shareholding 193
superintendent 3
supervising psychiatrist 3
transport order 34(1), 41(1), 71(1)
treating practitioner 3
treating psychiatrist 3
treatment in the community 3