New Interstate Agreement between NSW and QLD – Mental Health

Summary This Information Bulletin serves to inform staff of the new Interstate Agreement that has been signed governing the apprehension, transfer and treatment of civil and forensic mental health patients between New South Wales and Queensland.

Document type Information Bulletin

Document number IB2018_053

Publication date 16 November 2018

Author branch Mental Health

Branch contact (02) 9391 9262

Replaces IB2018_005

Review date 16 November 2023

Policy manual Not applicable

File number H18/89324-2

Status Active

Functional group Clinical/Patient Services - Governance and Service Delivery, Mental Health

Applies to Ministry of Health, Public Health Units, Local Health Districts, Specialty Network Governed Statutory Health Corporations, Affiliated Health Organisations, NSW Ambulance Service, Public Hospitals, Private Hospitals and day Procedure Centres

Distributed to Ministry of Health, Public Health System, NSW Ambulance Service, Private Hospitals and Day Procedure Centres

Audience Administration, Clinical Mental Health Staff, Emergency Departments, Mental Health Facilities

Information Bulletin

Secretary, NSW Health

INFORMATION BULLETIN

IB2018_053 Issue date: November-2018 Page 1 of 3

NEW INTERSTATE AGREEMENT BETWEEN NSW AND QLD – MENTAL HEALTH

PURPOSE

A new Interstate Agreement has been signed governing the apprehension, transfer and treatment of civil and forensic mental health patients between New South Wales and Queensland.

KEY INFORMATION

The new Agreement includes provisions related to both civil and forensic mental health patients, replacing the previously separate civil and forensic Agreements.

Under the new Agreement:

QLD civil patients can now be apprehended while in NSW, however NSW civil patients still cannot be apprehended while in QLD.

NSW forensic patients can be apprehended in QLD if an order has been issued under section 68 of the NSW Mental Health (Forensic Provisions) Act 1990.

Transfer provisions remain unchanged

Community Treatment Order provisions remain unchanged

There are two forms: a Civil Interstate Transfer Notice and an Interstate Apprehension Order (both attached here as appendices).

The new Agreement can be found at https://www.health.nsw.gov.au/legislation/Pages/agreements.aspx

APPREHENSION OF INTERSTATE CIVIL PATIENTS

NSW civil patients cannot be apprehended in QLD

NSW civil patients who have absconded or breached their treatment conditions cannot be apprehended while in QLD.

If a NSW civil patient is suspected to have entered QLD, the Medical Superintendent of the NSW Declared Mental Health Facility (DMHF) treating the patient may notify the Administrator of the QLD Authorised Mental Health Service (AMHS) nearest to the patient, if known. They may provide any relevant information that could assist the AMHS to engage the patient in treatment and care, which may include an assessment under the QLD Act as to whether involuntary treatment is necessary.

If a NSW patient is detained in a QLD facility following this process, a transfer to a facility in NSW can be considered (see information on transfers below).

QLD civil patients can be apprehended in NSW

QLD civil patients who have absconded or breached their treatment conditions can be apprehended while in NSW. The procedures outlined in Part 8 of the Agreement must be followed, including the issuing of an Interstate Apprehension Order.

INFORMATION BULLETIN

IB2018_053 Issue date: November-2018 Page 2 of 3

APPREHENSION OF INTERSTATE FORENSIC PATIENTS

NSW forensic patients can be apprehended in QLD following a Section 68 order

A NSW forensic patient can be apprehended while in QLD if the NSW Mental Health Review Tribunal (the Tribunal) has issued an order under Section 68 of the Mental Health (Forensic Provisions) Act 1990 (MHFPA). The procedures outlined in Part 8 of the Agreement must be followed, including the issuing of an Interstate Apprehension Order.

Note: An order issued by an authorised medical officer (AMO) under Section 68A of the MHFPA is not sufficient to issue an Interstate Apprehension Order. If an AMO believes that a NSW forensic patient has absconded to QLD, they can contact the Tribunal and request a s68 order and Interstate Apprehension Order be issued.

QLD forensic patients can be apprehended in NSW

QLD forensic patients can be apprehended while in NSW. The procedures outlined in Part 8 of the Agreement must be followed, including the issuing of an Interstate Apprehension Order.

INVOLUNTARY ASSESSMENT

Current provisions for the emergency or involuntary assessment and treatment of civil patients remain, including an administrative requirement for NSW officers transporting patients to a QLD mental health facility. Processes and persons authorised to carry out the transport are set out in detail in Part 6 of the Agreement.

Emergency/involuntary assessment and treatment can occur interstate

A NSW person who may be lawfully taken to or detained at a NSW DMHF for emergency examination relating to a mental illness, or for involuntary assessment, may instead be taken to a QLD AMHS or Public Sector Health Service Facility (PSHSF).

A QLD person who appears to have a mental illness or for whom a ‘Recommendation for Assessment’ has been made under the QLD Act and who may lawfully be detained at a QLD AMHS or PSHSF, may instead be taken to a NSW DMHF.

Upon arrival at the facility, the person will be assessed under the relevant sections of that state’s mental health legislation.

Emergency Examination Authority required on arrival at QLD facility

For persons transported to a QLD facility for emergency assessment, the transporting officer, including NSW officers, must complete an ‘Emergency Examination Authority’. This form will be provided by staff at the QLD facility.

TRANSFERS

Civil inpatients can be transferred between NSW and QLD

INFORMATION BULLETIN

IB2018_053 Issue date: November-2018 Page 3 of 3

Civil inpatients can be transferred between NSW and QLD, following the issuing and approval of a Civil Interstate Transfer Notice. Processes and persons authorised to carry out the transport are set out in detail in Part 7 of the Agreement.

Forensic patients cannot be transferred between NSW and QLD

COMMUNITY TREATMENT ORDERS

CTOs and community category TAs cannot be transferred between NSW and QLD

If a NSW resident subject to a CTO relocates to QLD, or a QLD resident subject to a community category TA relocates to NSW, the CTO or TA cannot be transferred to the other state.

CTOs and community category TAs can be implemented interstate

A NSW resident may be subject to a QLD TA provided the facility administering the TA is in QLD. QLD officers can exercise powers and perform functions under the TA in NSW.

A QLD resident may be subject to a NSW CTO provided the facility administering the CTO is in NSW. However, NSW officers cannot exercise their powers or perform their functions under the CTO in QLD.

The facility administering the CTO or community category TA retains ultimate responsibility for administering the order and monitoring the interstate patient.

In practise, interstate implementation is often subject to logistical considerations and the proximity of the patient to the interstate border.

Patients who breach their NSW CTO cannot be apprehended while in QLD

Where a patient residing in QLD breaches their NSW CTO, it is not possible to apprehend them in QLD based on a NSW breach order. The patient may be apprehended if they return to NSW. Alternatively, the process outlined under ‘Apprehension of interstate civil patients’ should be followed.

ATTACHMENTS

1. Schedule 2 – Civil Interstate Transfer Notice

2. Schedule 3 – Interstate Apprehension Order

SCHEDULE 2

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Civil Interstate Transfer Notice

Mental Health Act 2016 (Qld) and Mental Health Act 2007 (NSW)

Name of Referring Facility:

Address:

Town/Suburb: State: Postcode:

Patient Status:

☐Patient is on a Queensland Treatment Authority (inpatient category) under the Mental Health Act 2016 (Qld).

☐ Patient is an involuntary patient under the Mental Health Act 2007 (NSW)

To be transferred to: (name and address of proposed Receiving Facility)

Name of proposed Receiving Facility (Authorised Mental Health Service (Qld) or Declared Mental Health Facility (NSW)):

Address:

Town/Suburb: State: Postcode:

Reasons for proposed transfer: (See notes) Extra details attached ☐Yes ☐ No

What are the reasons for the proposed transfer (e.g. enabling the person to be closer to their family, carers or other support persons):

Is the proposed transfer considered to be in the best interests of the person? ☐Yes ☐ No

Treatment requirements and Risk Summary: (See notes) Extra details attached ☐Yes ☐ No

☒Yes ☒ No Details of psychiatric history, current mental state, Risk Summary (including date of last assessment) and any pending legal matters:

Is the person likely to be made subject to an involuntary order in the other State ☐Yes ☐ No

Treatment and care available for person in the proposed Receiving Facility: (See notes) Extra details attached ☐ Yes ☐ No

Details of treatment and care available for the person in the proposed Receiving Facility:

Is appropriate treatment and care available for the person in the proposed Receiving Facility? ☐Yes ☐ No

Proposed transfer date and transport arrangements: (see notes) Extra details attached ☐ Yes ☐ No

Proposed date of transfer: / / Proposed transfer arrangements: Receiving Facility contact name: Designation: Contact number:

Referring Facility request: (To be completed by Administrator, Authorised Mental Health Service (Qld); or Medical Superintendent, NSW Facility)

Name: Designation:

Phone No: Fax No: Email:

Signature Print name: Date of request: / /

Receiving Facility approval: (To be completed by Administrator, Authorised Mental Health Service (Qld); or Medical Superintendent, NSW Facility)

Name: Designation:

Phone No: Fax No: Email:

Signature Print name:

Date of approval: / /

Transfer: (Date and any additional details of arrangements) Date of transfer:

Extra details attached ☐ Yes

☐ No

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Send this form to:

☐ Original to the Administrator (Qld) or Medical Superintendent (NSW) of the relevant Referring Facility

☐ Copy with any other information (including medical records) necessary for the continued care and treatment of the Patient to the

Administrator (Qld) or Medical Superintendent (NSW) of the relevant Receiving Facility

☐ Copy to Queensland Mental Health Review Tribunal for Patient transferring out of Queensland

NOTES The terms used in this form are defined in clause 1.1 of the Agreement The planned transfer of Involuntary Patients between Queensland and NSW is governed by s354 and s355 of the Queensland Act and s176 and s179 of the NSW Act and by Part 7 of the Memorandum of Agreement On Planned Interstate Transfers and the Apprehension and Return of Interstate Persons between the two States. The Ministerial Agreement can be accessed at: https://www.health.qld.gov.au/clinical-practice/guidelines-procedures/clinical-staff/mental-health/act/agreements or http://www.health.nsw.gov.au/legislation/Pages/agreements.aspx The planned interstate transfer of a Patient can only occur with the prior approval of the proposed Receiving Facility. This form notifies the proposed Receiving Facility and seeks the approval of the relevant Interstate Authority to the proposed transfer. The approval must be in writing, endorsed on this request. When signed by both parties, this form authorises the Patient’s transfer to the Receiving State. TRANSFERS FROM QUEENSLAND TO NSW The planned transfer of a Patient from Queensland to NSW under s354 of the Queensland Act and s179 of the NSW Act must be approved by the Administrator of the Queensland Referring Facility and the Medical Superintendent of the NSW Receiving Facility and be in the form of an Interstate Transfer Notice. The Administrator of the Referring Facility may approve the transfer if satisfied that:

(a) .... the transfer is in the best interests of the person, including, for example, enabling the person to be closer to the person’s family, carers or other support persons;

(b) ... appropriate treatment and care is available for the person at the Receiving Facility. The Medical Superintendent of the Receiving Facility may not accept the transfer of a person unless the Medical Superintendent considers that it is likely that the person is a mentally ill person or a mentally disordered person The Interstate Transfer Notice must accompany the Patient at the time of the transfer. The Patient will cease to be subject to the Queensland Treatment Authority once they have left Queensland. From the time of the Patient’s arrival at the NSW Facility, the Patient will be dealt with as if they are an Involuntary Patient under the NSW Act. TRANSFER FROM NSW TO QUEENSLAND The planned transfer of a Patient from NSW to Queensland under s176 of the NSW Act and s355 of the Queensland Act must be approved by the Medical Superintendent of the NSW Referring Facility and the Administrator of the Queensland Receiving Facility and be in the form of an Interstate Transfer Notice. The Administrator of the proposed Receiving Facility may approve the transfer if satisfied that:

(a) .... the transfer is in the best interests of the person, including, for example, enabling the person to be closer to the person’s family, carers or other support persons;

(b) ... appropriate treatment and care is available for the person at the proposed Receiving Facility; and (c) .... an Authorised Doctor is likely to consider, on the person’s admission to the Authorised Mental Health Service, that;

(i)...... the Treatment Criteria apply to the person; and (ii) ..... there is no Less Restrictive Way for the person to receive treatment and care for the person’s mental illness.

The Interstate Transfer Notice must accompany the Patient at the time of the transfer. The patient will cease to be a Patient under the NSW Act once they have been admitted as a Patient of the Authorised Mental Health Service. Under s 355 of the Queensland Act, on arrival at the Queensland Authorised Mental Health Service the person must be assessed by an Authorised Doctor to decide whether to make a Treatment Authority for the person. The person may be detained for assessment for a period of not more than 6 hours starting when the person arrives at the Authorised Mental Health Service PERSONS AUTHORISED TO TAKE A PERSON TO A QUEENSLAND AUTHORISED MENTAL HEALTH SERVICE OR NSW FACILITY The persons who may take an Interstate Person to an Authorised Mental Health Service, or NSW Facility are:

(a) .... a person authorised under section 359 of the Queensland Act being: (i)...... the Administrator of an Authorised Mental Health Service; (ii) ..... a Queensland Ambulance Officer; (iii) .... a Queensland Health Practitioner; (iv) .... a Queensland Police Officer; (v) ..... a person appointed by the Administrator of an Authorised Mental Health Service as an Authorised Person.

(b) ... a person prescribed under the NSW Regulations in accordance with section 179(2) of the NSW Act, being:

(i)...... the Medical superintendent of a NSW Facility or any other person authorised to do so by the Medical Superintendent; (ii) ..... a NSW Police Officer.

The authority set out in Chapter 11, Part 6, Division 5 of the Queensland Act and set out in section 81 of the NSW Act in relation to transport powers, including the powers to detain the person, administer medication to the person and to enter premises, apply to the planned transfer of Involuntary Patients between Queensland and NSW.

SCHEDULE 3

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(Affix patient identification label here)

URN/MRN:

Family Name:

Given Names:

Address:

Date of Birth: / / Sex: ☐M ☐ F ☐ I

Interstate Apprehension Order – Request to Apprehend

Mental Health Act 2016 (Queensland Act) and Mental Health Act 2007 (NSW Act) Mental Health (Forensic Provisions) Act 1990 (NSW Forensic Act)

Patient Status:

Civil Patient

☐Involuntary Patient as defined in s11 of the Qld Act, other than a Forensic Patient, a Treatment Support Order Patient, a Classified Patient, a person subject to a Judicial Order or an Examination Authority Note: This form does not apply to NSW Civil Patients

Forensic/Treatment Support Order/Classified/Judicial Order Patient

☐Forensic Patient as defined in Schedule 3 of the Queensland Act

☐ Treatment Support Order Patient under s143(1) of the Queensland Act

☐Classified Patient as defined under s64 of the Queensland Act

☐ person subject to a Judicial Order as defined in Schedule 3 of the Queensland Act

☐ Forensic Patient as defined in s4 of the NSW Act

Name of Interstate Facility (Authorised Mental Health Service (Qld) or Declared Mental Health Service (NSW)) where the Patient is to returned:

Address:

Town/Suburb: State: Postcode:

Description of the Patient:

Height: Cm Weight: Kg Build:

Complexion: Colour of eyes: Hair style/colour/length:

Distinguishing features: (e.g. tattoos/scars/piercings/facial hair) Extra details attached ☐ Yes ☐ No

Information that will assist with apprehension: (e.g. aliases, current locations) Extra details attached ☐ Yes ☐ No

Risk Summary: (include date of last risk assessment) Extra details attached ☐ Yes ☐ No

Date of last risk assessment: / / Treatment and care requirements: Extra details attached ☐ Yes ☐ No

Contact at Facility where Patient is to be returned (MUST BE AVAILABLE 24 HOURS/7 DAYS PER WEEK)

Name of position:

Designation: Phone No: Fax No: Email:

Person making request to apprehend:

Qld - Administrator, Authorised Doctor, Person in Charge of Queensland Public Sector Health Service Facility, or Authorised Mental Health Practitioner

NSW - Forensic Patients: President, Deputy President or Registrar of NSW Mental Health Review Tribunal

Name: Designation:

Phone No: Fax No: Email:

Signature Print name:

Date: / /

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Send this form to:

☐ Original to the issuing agency or Facility

☐ Copy to the Administrator (Qld) or Medical Superintendent (NSW) of the interstate Facility to which the person is to be returned (if different from

the issuing agency or Facility)

NOTES The terms used in this form are defined in clause 1.1 of the Agreement

The apprehension and return of an Involuntary Patient absent or otherwise liable to be apprehended from Queensland or NSW is governed by Part 8 of the Memorandum of Agreement on Planned Interstate Transfers and the Apprehension and Return of Interstate Persons between the two States and Chapter 11, Part 6, Division 4 of the Queensland Act and Chapter 8 of the NSW Act and Division 2 of Part 8 of the NSW Regulation.

The Ministerial Agreement can be accessed at: https://www.health.qld.gov.au/clinical-practice/guidelines-procedures/clinical-staff/mental-health/agreements/default.asp or http://www.health.nsw.gov.au/legislation/Pages/agreements.aspx PERSONS AUTHORISED TO APPREHEND A PATIENT UNDER AN INTERSTATE APPREHENSION ORDER Apprehension and Return of a Queensland Civil Patient in NSW

(a) a person authorised to apprehend such a person under section 48 of the NSW Act, being: (i) a NSW police officer; (ii) an Authorised Medical Officer or any other suitably qualified person employed at the NSW Facility; (iii) a person authorised by the Minister or the Authorised Medical Officer; or (iv) a person assisting a person referred to above;

(b) a person authorised or requested to transport an absent person under section 364 of the Queensland Act, being: (i) a Queensland ambulance officer; (ii) an Authorised Doctor; (iii) an Authorised Mental Health Practitioner; (iv) a Queensland police officer; (v) a Queensland Health Practitioner; (vi) a person appointed by the Administrator of an Authorised Mental Health Service as an authorised person.

Apprehension and Return of Queensland Forensic Order /Treatment Support Order/Classified/Judicial Order Patients in NSW

(a) a person authorised to retake a NSW Forensic Patient under section 70(1) of the NSW Forensic Act, those persons being: (i) the Medical Superintendent of a NSW Facility or any other suitably qualified person employed by the NSW Facility who is authorised to do

so by the Medical Superintendent; (ii) a NSW police officer; (iii) a person authorised by the NSW Secretary or the Medical Superintendent, (iv) a person assisting a person referred to above; or

(b) a person authorised or requested to transport an absent person under section 364 of the Queensland Act, being: (i) a Queensland ambulance officer; (ii) an Authorised Doctor; (iii) an Authorised Mental Health Practitioner; (iv) a Queensland Health Practitioner; (v) a Queensland police officer; (vi) a person appointed by the Administrator of an Authorised Mental Health Service as an authorised person.

Apprehension and Return of NSW Forensic Patients in Queensland

(a) a Queensland police officer under section 368 of the Queensland Act.

SUMMARY OF RELEVANT LEGISLATIVE PROVISIONS UNDER THE NSW AND QUEENSLAND LEGISLATION

Mental Health Act 2016 (Qld)

368 Apprehension of person absent from interstate mental health service

1) An authorised person who is a police officer may apprehend, in Queensland, a person— (a) who is absent without leave from an interstate mental health service; and (b) for whom a warrant for the person’s apprehension has been issued under a Corresponding Law of the State in which the interstate mental

health service is located (the other State). 2) A warrant issued under a corresponding law authorising a person’s apprehension is taken to be a warrant for apprehension of the person under

this Act by a police officer. 3) If the person is apprehended under this section, a police officer may transport the person to an interstate mental health service in the other

State or an Authorised Mental Health Service. 4) The person may be detained in an Authorised Mental Health Service for the period reasonably necessary to enable the Administrator of the

service to make arrangements for the person’s return to an interstate mental health service.

Mental Health Act 2007 (NSW)

186 Apprehension of interstate persons absent without leave or in breach of corresponding orders

1) A person who is the subject of a warrant or an order or other document recognised in this State, or who is otherwise liable to be apprehended, under a provision of a corresponding law under which the person may be apprehended and taken to a mental health facility may be apprehended at any time: (a) by a police officer, or (b) by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.

2) On being apprehended the person may be conveyed to and detained in a mental health facility in this State or the other State (if this is permitted by or under a provision of a corresponding law of the other State).

3) This Act applies to a person conveyed to and detained in a mental health facility under this section as if the person had been taken to and detained in a mental health facility under Part 2 of Chapter 3.

SCHEDULE 3

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Mental Health (Forensic Provisions) Act 1990 (NSW)

68 Breach of orders for release

1) The President of the Tribunal may make an order for the apprehension of a person if it appears to the President that:

(a) the person has breached a condition of an order for the person’s conditional release under this Part, or

(b) the person has committed a breach of an order releasing the person from custody under section 39, or

(c) the person has breached a condition of leave of absence granted under this Part, or

(d) the person has been granted conditional release or leave of absence under this Part and has suffered a deterioration of mental condition

and is at risk of causing serious harm to himself or herself or to any member of the public because of his or her mental condition.

2) The Tribunal must review the case of a person apprehended under this section and may:

(a) confirm the person’s release or leave, either conditionally or subject to conditions, or

(b) order the person’s apprehension and detention, care or treatment in a mental health facility, correctional centre or other place, and in the manner, specified in the order.

Note.

The Tribunal may also make a community treatment order under Division 5.

3) A police officer to whose notice an apprehension order is brought must:

(a) apprehend and take or assist in taking the person to the mental health facility, correctional centre or other place specified in the order, or

(b) cause or make arrangements for some other police officer to do so.

4) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any of the powers conferred on a person who is authorised under section 81 of the Mental Health Act 2007 to take a person to a mental health facility.

5) An apprehension order under this section authorises the detention of the person at the mental health facility, correctional centre or other place specified in the order.

70 Retaking of escapees

1) A forensic patient or correctional patient who escapes from a mental health facility or other place may be apprehended at any time by any of the following persons:

2) the medical superintendent of the mental health facility or any other suitably qualified person employed in the mental health facility who is authorised to do so by the medical superintendent,

3) a police officer, 4) a person authorised by the Secretary or the medical superintendent, 5) a person assisting a person referred to in paragraph (a), (b) or (c). 6) On being apprehended, the patient is to be conveyed to and detained in the mental health facility or other place from which the patient

escaped.

This section does not affect any power of any other person to apprehend a person under the Crimes (Administration of Sentences) Act 1999.