Major Amendments

This version of the history of amendments lists only those considered to be major amendments. For the complete list of amendments click here.

The dates shown in each heading are when the amendments commenced operation. The following summaries do not purport to detail all amendments. In addition, they focus primarily on changes directly affecting the operations of the Board. This descriptive history is therefore only a guide and should not be relied upon as a comprehensive statement.

1 October 1987 Mental Health Act 1986, No.59/1986

Those sections which dealt with the purpose and definitions and which set up the Mental Health Review Board and its staff came into effect in June 1987. The substantive parts came into operation on 1 October 1987. The long title for this Act was "a Bill to provide for the care, treatment and protection of persons who are mentally ill, to establish a Mental Health Review Board, to define the role of the Department of Health with respect to mental health, to repeal the Mental Health Act 1959 and for other purposes."

3 OCTOBER 1988 - MENTAL HEALTH (AMENDMENT) ACT 1988, No. 42/1988.

This made a number of procedural and mechanical amendments based on recommendations made by the Board to the Minister to improve the day to day operation of the new Act. The significant amendments related to:

Community treatment orders - s14 was substantially rewritten in order to enable these orders to be enforced. Power was given to an authorised psychiatrist to revoke a community treatment order. When revoked, the person is deemed to be an involuntary patient who is absent without leave and may be apprehended by the Police at the request of the authorised psychiatrist.

Court Ordered admission - s15 was substantially amended to permit the Court to make a short term assessment order, in order to determine whether a person found guilty of a criminal offence should be ordered to remain as an involuntary patient in a psychiatric hospital. These assessment orders may be made for a period of up to 72 hours.

Jurisdiction of the Board - it was expanded to allow for appeals by involuntary and security patients against transfer orders from one psychiatric hospital to another.

Powers of the Board - the Board's powers when dealing with patients transferred from prison under s16, patients ordered to be detained in hospital by a Court under s15 and leave of absence applications by security patients ceased to be recommendatory only. The Board now has determinative powers and the Minister no longer has any role in relation to the discharge or placement of these patients.

Non-psychiatric treatment - s85 was amended so that the authorised psychiatrist may only give consent to the performance of non-psychiatric treatment upon involuntary or security patients. Previously, the authorised psychiatrist could consent for voluntary patients. This section was amended to enable the Board to issue guidelines setting out the forms of non-psychiatric treatment which must be reported.

6 JUNE 1989 - GUARDIANSHIP AND ADMINISTRATION BOARD (AMENDMENT) ACT 1989, No.33/1989.

Section 9 of this Act made substantial amendments to the community treatment order provisions. Previously it was not possible for a community treatment order to remain in operation for longer than 12 months. If at the expiration of a community treatment order it was appropriate that a person should continue to remain subject to such an order it was necessary to readmit the person to a psychiatric hospital as an involuntary patient and then make a new community treatment order. The amendment permitted the extension of community treatment orders for a period not exceeding 12 months. The authorised psychiatrist must examine the person first and may do so without re-admitting them to hospital. There is no limit to the number of extensions.

The Board was required to conduct a review of the patient within 4 to 6 weeks of the date upon which the community treatment order was extended.

1 JANUARY 1991 - MENTAL HEALTH (GENERAL AMENDMENT) ACT 1990, No. 32/1990

Sections 1,2,3, 22 and 31 commenced on 7 August 1990. The remaining sections commenced operation on 1 January 1991.

Involuntary admission procedure - s9 now provided that a "prescribed medical practitioner" could sedate a recommended person if in their opinion it was necessary for safe transport to hospital. A medical practitioner completing a recommendation may rely upon facts which were personally observed by another medical practitioner within the previous 28 days and communicated directly to the certifying medical practitioner.

Community treatment orders - a person can now be placed on a community treatment order without that person's physical admission to a psychiatric hospital.

Treatment of involuntary patients - s12(5) was amended to permit the authorised psychiatrist, or a guardian to consent to treatment for an involuntary patient when that person is capable of consenting to treatment but has refused to consent to the necessary treatment. Previously, the consent of the authorised psychiatrist or guardian could only be relied upon to authorise non-consensual treatment when the involuntary patient was not capable of consenting to the necessary treatment.

Restricted community treatment orders - s15 was amended to permit persons committed to hospital as involuntary patients by way of court order to be placed on a restricted community treatment order. These orders are made by the chief psychiatrist and do not come into effect until approved by the Board. The intention was to provide an important management device in assisting patients to live in the community.

Transfer of children in custody and persons in police cells as security or involuntary patients. Section 16 now enables the Director-General of Community Services (now this refers to the Secretary of the Department of Justice - see (46/98)) and the Chief Commissioner of Police to transfer persons within their custody to a psychiatric hospital.

Procedural powers of the Board - Schedule 2 was amended. The Board can now order that a person be added as a party; order that any person cease to be a party; adjourn to any time or place for what ever purpose and on whatever terms as to costs or otherwise as the Board considers necessary or just in the circumstances; reserve a decision to a date to be advised; make an order that takes effect at a subsequent date as specified in the order.

22 APRIL 1992 - SENTENCING ACT 1991, No.49/1991

This involved a major reorganisation of sentencing provisions. There were some consequent changes to the MHA. The definition of involuntary patient was changed so that it now included all persons admitted under s90, 91 and 93(1)(d) of the Sentencing Act 1991 - see MHA s3.

All provisions in the MHA relating to involuntary patients now apply to such Sentencing Act patients.

The definition of security patient was changed to include persons detained under s93(1)(e) of the Sentencing Act 1991.

The Board's power to discharge when considering s90, 91 and 93 was established - s36(2).

Section 15 was amended to require the Board to notify the relevant court if it decided to discharge a s90 (72 hour) or s91 (3 month) patient.

As hospital security order patients are included under the definition of security patient, any appeals or reviews of such patients must be conducted in accordance with s44.

Restricted community treatment order - any person who is subject to a s93(1)(d) hospital order may also be the subject of a restricted community treatment order. The Board must now have regard to the criteria specified in s93(1)(b) of the Sentencing Act 1991 and s15A of the MHA.

1 OCTOBER 1993 - HEALTH AND COMMUNITY SERVICES (GENERAL AMENDMENT) ACT 1993, No.42/1993

Community treatment orders can now specify the place of residence - s14(2A). Initial reviews must occur within 8 weeks of admission (previously it was within 4-6 weeks) - s30(a). Similarly a review of a decision to extend a community treatment order must now be held within 8 weeks of the extension.

One Member panels were introduced for the first time. They were empowered to hear annual reviews only.

Costs - This was amended to provide that they can only be awarded where the circumstances involved are contemptuous or vexatious - s131(previously it was "as the Board thinks fit").

The requirement that the Board be sent reports on seclusion, restraints, non-psychiatric treatment and ECT was discontinued - s73, 81, 82 and 85.

1 JULY 1996 - MENTAL HEALTH (AMENDMENT) ACT 1996, No. 55/1996

This was a major amendment. The following are the principal changes:

Definition of mental illness

this was included for the first time, see s8(1A)

Definition of "mental disorder"
this was included in s3.

Reference to "mental illness" throughout most of the Act were amended to "mental disorder". Some sections continue to refer to "mental illness".

Definition of treatment
this was new, see s3

It was made clear that the mental illness must be the reason for a person being detained - amendments to s8(1)(c) and s14(1A)(c).

Voluntary admission

this is no longer covered by the Act.

Approved mental health services
this term replaced "psychiatric in-patient service". Any premises (including part of any building or place) can be proclaimed.

Objects of the Act.
Section 4(1) was amended to insert (a),(ab) and (ac). The second reading speech said it was to "support the focus on the rights of people with a mental illness, the priority for treatment in the community and the mainstreaming of mental health services."

section4(2)(a) was amended to refer to treatment in the "least possible restrictive environment" or "manner". A reference to "privacy" was inserted in s4(2)(b).

Principles of treatment and care
principles intended to promote high quality treatment in the community and encourage increased self reliance by consumers were placed in s6A.

Transport
Section 9 was amended to enable transportation of a person to an approved mental health service when a registered medical practitioner is not available within a reasonable period.

Apprehension of a person
Section 10 amended to clarify the role of the police force.

Admission and detention
the s8 criteria were modified. Previously paragraphs (b),(d) and (e) referred to "treatment or care". The words "or care" were deleted to make it clear that admission could not be for the provision of non-clinical services without a corresponding obligation to provide treatment.

The consent of the patient and not the guardian is relevant - see a new s8(4) and 14(1B). Previously a guardian could consent to necessary treatment of an involuntary patient.

The criteria for community treatment orders was established. This was a new provision. It was separate but mirrored s8 - see s14(1A).

Further amendments sought to increase accountability by requiring the order to specify details of who was supervising the order, intervals for reports etc. See section 14(2).

Revocation of community treatment order

Section 14(4) was amended to clarify revocation procedures.

Powers of the Board on appeal or review
powers relating to community treatment orders were relocated from s14(3A)(repealed) to s36(4).

Access to documents -
provision was made for patients to have access to documents to be given to the Board not less than 24 hours before the hearings - s26(7). This in effect incorporated the Board's practice in terms of meeting natural justice requirements.

Reviews by the Mental Health Review Board
the review provisions in s30(a) and (b) became s30(1)(a) and (b).

Leave of absence for security patients - the Board can no longer grant leave. It can only review the refusal to grant leave or the revocation of approval of leave - s51(4). In addition in relation to these cases the Board was no longer required to consult the Director-General of Corrections (reference to the Director General was later substituted for a reference to the Secretary to the Department of Justice - see 45/1996) but must give that person a notice of the appeal - s51(5).

Continued detention and treatment patients

this was a new provision to deal with those patients who no longer satisfy the s8 criteria and who if not detained and treated would cause serious physical harm to themselves. See s12A.

Board members
appointments, previously for 3 years, could now be for 3-4 years.

Single member divisions
a single member of the Mental Health Review Board can now hear annual reviews and extensions of community treatment orders.

1 JANUARY 1998 - MENTAL HEALTH (VICTORIAN INSTITUTE OF FORENSIC MENTAL HEALTH ACT 1997, No. 77/1997

The newly created Institute will provide forensic mental health services including services to security patients. Prior to this, the area of forensic mental health was the sole remaining area of mental health services that was provided directly by the Department of Human Services.

18 APRIL 1998 - CRIMES (MENTAL IMPAIRMENT AND UNFITTNESS TO BE TRIED) ACT 1997, No.65/1997

This removed from the Board jurisdiction to conduct reviews (principally annual reviews) and to hear appeals against the decisions affecting leave in relation to persons previously known as Governor's Pleasure patients.

Governor's Pleasure patients were persons who had been found not guilty on the grounds of insanity or had been found unfit to plead guilty or not guilty and then ordered to be kept in safe custody in an approved mental health service until the Governor's Pleasure was known. Such persons now come under a new definition of "forensic patient".

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