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Mental Health Act 2001

TONGA

MENTAL HEALTH ACT 2001

ARRANGEMENT OF SECTIONS

PART I - PRELIMINARY

1. Short Title and Commencement
2. Crown to be bound
3. Interpretations

PART II - VOLUNTARY ADMISSION TO A
MENTAL HEALTH FACILITY

4. Voluntary Admission
5. Consent to Admission
6. Initial Examination
7. Incapacity to Consent
8. Refusal of Admission
9. Review of Refusal of Admission
10. Persons aged 14-18 Years
11. Persons aged under 14 Years
12. Departure
13. Discharge of Voluntary Patients
14. Review of Discharge
15. Tribunal Review
16. Tribunal Order

PART III - INVOLUNTARY ADMISSION TO A
MENTAL HEALTH FACILITY

17. Determination of Mental Illness
18. Criteria for Involuntary Admission on Grounds of Mental Illness
19. Mental Illness
20. Request for Assessment
21. Assessment
22. Conveyance to Facility
23. Removal
24. Warrant for Entry and Assessment

PART IV - EMERGENCY ADMISSION

25. Emergency Admission to a Mental Health Facility
26. Involuntary Admission on Grounds of Mental Illness
27. Involuntary Admission on Grounds of Mental Disorder
28. Provision of Notice

PART V - REVIEW OF INVOLUNTARY ADMISSION

29. Review of Involuntary Admission by Tribunal
30. On-going Examinations

PART VI - AUTHORISATION OF TREATMENT

31. Treatment after Involuntary Admission
32. Plan of Treatment
33. Authorisation of Plan of Treatment
34. Capacity to Consent
35. Elements of Informed Consent
36. Requirements for Consent to be Informed
37. Explanation of Treatment

PART VII - REGULATION OF SPECIFIC FORMS
OF TREATMENT

38. Mechanical Means of Bodily Restraint
39. Seclusion of Patients
40. Authority to Perform Electroconvulsive Therapy
41. Tribunal Approval of Electroconvulsive Therapy
42. Electroconvulsive Therapy in Emergencies
43. Authority to Perform Clinical Trials or Experimental Treatment

PART VIII - INVOLUNTARY TREATMENT IN
THE COMMUNITY

44. Criteria for Involuntary Treatment in the Community
45. Community Treatment Order
46. Contents of Order
47. Application for Order
48. Interim Community Treatment Order
49. Procedure
50. Duration of Order
51. Review of Treatment Plan
52. Discharge from Order
53. Review by Tribunal
54. Discharge by Tribunal
55. Psychiatrist Case Manager
56. Case Manager's Report
57. Breach of Order
58. Consequences of Breach

PART IX - PATIENTS SUBJECT TO
THE CRIMINAL OFFENCES ACT

59. Criteria for Admission as a Forensic Patient
60. Arrest
61. Decision not to Charge
62. Person not Released
63. Powers of Court
64. Interim Treatment Order
65. Return of Person to Court
66. Inclusion in the Sentence
67. Treatment Order
68. Evidence for Treatment Order
69. Request for Assessment
70. Transfer
71. Termination of Transfer
72. Involuntary Transfer
73. Involuntary Mental Disorder Transfer
74. Termination of Involuntary Mental Disorder Transfer
75. Involuntary Mental Illness Transfer
76. Discharge
77. Notification of Term of Imprisonment
78. Admission Time
79. Application of Division
80. Privy Council Decision
81. Review by Tribunal
82. Application for Review

83. Dismissal of Frivolous or Vexatious Complaints 84. Purpose of Review 85. Tribunal Order 86. Notification of Order 87. Breach of Conditions 88. Right of Appeal PART X- PATIENTS' RIGHT AND COMPLAINTS
MECHANISMS

89. Information about Patients Rights
90. Information may be Required
91. Discharge Planning
92. Privacy and Confidentiality
93. Exceptions
94. Procedures for Handling Complaints
95. Acknowledgement of Complaint
96. Documentation of Complaints
97. Report to Mental Health Advisory Committee
98. Criminal Offence
99. Professional Misconduct
100. Community Visitors
101. Appointment to more than one Facility
102. Tenure and Remuneration
103. Resignation and Removal of Community
104. Restrictions on Appointment
105. Inquiry Functions
106. Complaint Functions
107. Visiting Duties
108. Powers of Inspection
109. Assistance to Community Visitor
110. Responsibilities to Report
111. Report to Mental Health Advisory
112. Minister may Require Report
113. Ability to Report to Minister
114. Provision of Information
115. Request to See Community Visitor
116. Unreasonable Requests

PART XI - ADMINISTRATION

117. Declaration of Mental Health Facilities
118. Appointment and Role of Authorised Psychiatrist
119. Approved Absence
120. Unapproved Absence

PART XII - THE MENTAL HEALTH ADVISORY COMMITTEE

121. Mental Health Advisory Committee
122. Membership of Mental Health Advisory Committee
123. Tenure
124. Secretary
125. Report to Health Development Committee
126. Immunity

PART XIII - MENTAL HEALTH REVIEW TRIBUNAL

127. Composition
128. President
129. Terms and Conditions of Appointment
130. Termination of Appointment
131. Quorum
132. Functions
133. Application of Rules of Evidence
134. Rights of Appearance and Representation
135. Access to Medical Records
136. Evidence
137. Interpreter
138. Inquiries may be held In Public
139. Record of Proceedings
140. Making an Application for Review
141. Appeals
142. Power of Supreme Court

PART XIV - MISCELLANEOUS

143. Repeal and Savings
144. Review of Existing Patients
145. Regulations

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TONGA

No. 8 of 2001.

I assent,

TAUFA'AHAU TUPOU IV,
21st September, 2002

AN ACT
TO PROVIDE FOR SERVICES RELATING TO MENTAL HEALTH AND FOR ANCILLARY PURPOSES.

[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

Short title and commencement.

1. (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

Crown to be bound

2. This Act shall bind the Crown.

Interpretation

3. 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 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 other;

"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 to 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;

(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 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

Voluntary admission

4. A person may consent to voluntary admission to a mental health facility.

Consent to admission

5. A person capable of giving informed consent may consent to voluntary admission and treatment.

Initial examination

6. 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.

Incapacity to consent

7. 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.

Refusal of admission

8. (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.

(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.

Review of Refusal of Admission

9. (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.

Persons aged 14-18 Years

10. (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.

Persons aged under 14 Years

11. (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.

Departure

12. A person who has been admitted voluntarily may leave the mental health facility at any time unless he satisfies the criteria for involuntary mission and shall be informed of that right.

Discharge of Voluntary Patients

13. (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

(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.

Review of Discharge

14. (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.

Tribunal Review

15. 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.

Tribunal order

16. 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

Determination of mental illness

17. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

Criteria for involuntary admission on grounds of mental illness

18. The criteria for involuntary admission on the grounds of mental illness 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;

(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.

Mental illness

19. 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.

Request for assessment

20. 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.

Assessment

21. (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.

(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.

Conveyance to facility

22. 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

to convey that person to a mental health facility.

Removal

23. 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.

Warrant for entry and assessment

24. (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

(2) A Magistrate may, upon application, issue a warrant after receiving information in writing or by telephone from a police officer, health 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

Emergency admission to a mental health facility

25. 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.

Involuntary admission on grounds of mental illness

26. (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 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.

Involuntary admission on grounds of mental disorder

27. (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.

(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.

Provision of notice

28. (1) As soon as practicable after 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

Review of involuntary admission by Tribunal

29. An involuntary patient admitted on the grounds of mental illness shall have his admission review by the Tribunal within 7 days.

On-going examinations

30. 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

Treatment after involuntary admission

31. 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 -

(a) immediate or imminent harm; or

(b) behaviour likely to cause immediate or imminent harm;

to the patient or other persons.

Plan of treatment

32. When reviewing an involuntary patient or deciding an application, the Tribunal may authorise a plan of treatment.

Authorisation of plan of treatment

33. 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.

Capacity to consent

34. 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

Elements of informed consent

35. (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.

Requirements for consent to be informed

36. 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;

(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.

Explanation of treatment

37. 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

Mechanical means of bodily restraint

38. (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;

(b) the reasons why that restraint was used;

(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.

Seclusion of patients

39. (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

(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;

(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 -

(a) the reasons why seclusion was used;

(b) the name of the person who approved or authorised the use of seclusion;

(d) the period of time for which the patient was kept in seclusion.

(6) The Tribunal shall inspect these records at regular intervals.

Authority perform electroconvulsive therapy

40. (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.

Tribunal approval of electroconvulsive therapy

41. 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.

Electroconvulsive therapy in emergencies

42. (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.

Authority to perform clinical trials or experimental treatment

43. (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

Criteria for involuntary treatment in the community

44. 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.

Community treatment order

45. 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.

Contents of order

46. 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;

(d) the times and days of the week the person shall attend the healthcare agency or be in attendance at his residence for treatment;

(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.

Application for order

47. An application for a community treatment order may be made to the Tribunal by an authorised psychiatrist or an authorised medical practitioner.

Interim community treatment order

48. (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.

Procedure

49. The Tribunal shall determine the venue and its own procedure for hearing any application for a community treatment order or review of such order.

Duration of order

50. 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.

Review of treatment plan

51. 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.

Discharge from order

52. 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.

Review by Tribunal

53. A person subject to a community treatment order may at any time apply to the Tribunal for a review of that order.

Discharge by Tribunal

54. 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.

Psychiatric case manager

55. 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.

Case manager's report

56. (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.

Breach of order

57. 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 -

(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.

Consequences of breach

58. (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

Criteria for admission as a forensic patient

59. 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

Division 1 - Arrested uncharged person

Arrest

60. 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 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.

Decision not to charge

61. A police officer may determine not to charge a person who has been examined by a medical practitioner in accordance with section 60.

Person not released

62. 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

Powers of court

63. 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.

Interim treatment order

64. (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.

Return of person to court

65. During the operation of an interim treatment order-

(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.

Inclusion in the sentence

66. 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.

Treatment order

67. (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.

Evidence for treatment order

68. 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

Request for assessment

69. (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.

Transfer

70. On the recommendation of the authorised psychiatrist, the Superintendent of Prison may authorise the person's transfer to a nominated mental health facility.

Termination of transfer

71. 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.

Involuntary transfer

72. 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.

Involuntary mental disorder transfer

73. 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.

Termination of involuntary mental disorder transfer

74. 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.

Involuntary mental illness transfer

75. 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

(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.

Discharge

76. 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.

Notification of term of imprisonment

77. 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.

Admission time

78. 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

Application of division

79. 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).

Privy Council decision

80. 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. 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.

Review by Tribunal

81. The Tribunal shall review the person at intervals not exceeding 6 months whilst he remains a forensic patient.

Application for review

82. The Tribunal may review the admission of a forensic patient at at [sic] any time or after receiving a written application from -

(a) the forensic patient;

(b) the Attorney General;

(d) the authorised psychiatrist.

Dismissal of frivolous or vexatious complaints

83. Where, at any stage in a review, the Tribunal is satisfied that an application is frivolous or vexatious, it may dismiss the application.

Purpose of review

84. 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.

Tribunal order

85. 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;

(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.

Notification of order

86. 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.

Breach of conditions

87. (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.

Right of appeal

88. (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.

(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

Information about patient's right

89. (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.

Information may be required

90. 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.

Discharge planning

91. 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.

Privacy and confidentiality

92. (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.

(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.

Exceptions

93. 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.

Procedures for handling complaints

94. 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.

Acknowledgement of complaint

95. 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.

Documentation of complaints

96. 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.

Report to Mental Health Advisory Committee

97. 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.

Criminal offence

98. 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.

Professional misconduct

99. 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.

Community visitors

100. 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.

Appointment to more than one facility

101. A person may be a community visitor at more than one facility or agency.

Tenure and remuneration

102. Each community visitor shall -

(a) hold office for a period of three years;

(b) be eligible for reappointment; and

(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.

Resignation and removal of community visitors

103. The Minister may remove a community visitor from office for -

(a) incapacity to carry out his;

(b) neglect of duty;

(d) ceasing to have the necessary status or qualifications.

Restrictions on appointment

104. 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.

Inquiry functions

105. 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.

Complaint functions

106. 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.

Visiting duties

107. (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).

(2) The Minister may direct a community visitor to visit a mental health facility or health care agency.

Powers of inspection

108. 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.

Assistance to community visitor

109. 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.

Responsibilities to report

110. 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.

Report to Mental Health Advisory Committee

111. (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.

Minister may require report

112. 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.

Ability to report to Minister

113. A community visitor or the Mental Health Advisory Committee may at any time submit a report to the Minister.

Provision of information

114. 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.

Request to see community visitor

115. (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.

Unreasonable requests

116. 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

Declaration of Mental health facilities

117. (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.

(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.

Appointment and role of authorised psychiatrist

118. 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.

Approved Absence

119. (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.

Unapproved absence

120. 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.

PART XII -THE MENTAL HEALTH ADVISORY COMMITTEE

Mental Health Advisory Committee

121. (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.

Membership of Mental Health Advisory Committee

122. 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;

(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.

Tenure

123. (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.

Secretary

124. The Minister shall appoint a mental health practitioner as Secretary to the Committee.

Report to National Health Development Committee

125. The Committee shall present an annual report of its activities to the National Health Development Committee.

Immunity

126. 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

Composition

127. There shall be a Mental Health Tribunal shall consisting of the President; and 2 other members.

President

128. (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.

Terms and conditions of appointment

129. 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.

Termination of appointment

130. (1) The Cabinet may terminate the appointment of the President or a member because of -

(a) misbehaviour;

(b) neglect of duty;

(d) ceasing to have the necessary status or qualification.

Quorum

131. 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 consider it expedient.

Functions

132. 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;

(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.

Application of rule of evidence

133. (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

(2) The person presiding at a review shall decide on the admissibility of evidence and any other questions of law or procedure.

Right of appearance and representation

134. 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.

Access to medical records

135. (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 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.

Evidence

136. 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.

Interpreter

137. 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.

Inquiries may be held in public

138. (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.

Record of proceedings

139. (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.

Making an application for review

140. (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.

Appeals

141. (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;

(d) make any other order it thinks fit.

Power of Supreme Court

142. (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

Repeal and savings

143. (1) The Mental Health Act 1992 is hereby repealed.

(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.

Review of existing patients

144. (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.

Regulations

145. 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.

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