The Law Handbook 2024
Chapter 8.4: Mental illness 839 Seize and secure An authorised person may seize a thing found as a result of a search if reasonably satisfied that the thing presents a danger to the health and safety of the person or another person (s 249). Bodily restraint An authorised person may use bodily restraint on a person if all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable and the use of bodily restraint is necessary to prevent imminent and serious harm to the person or to another person (s 250). Chemical restraint Chemical restraint (s 139) canbe used during transport if a registered medical practitioner is satisfied it is necessary to achieve the permitted purpose under section 127; that is, to prevent imminent and serious harm to that person or another person. If the force or restraint used is unnecessary or disproportionate, a person can complain to the Victorian Ombudsman or Victorian Mental Health and Wellbeing Commission if the force or restraint was used by a person who works for a mental health and wellbeing service provider (see ‘Victorian Mental Health and Wellbeing Commission’, below). In the case of a Victoria Police officer using unnecessary or disproportionate force or restraint, a complaint can be made to the Police Conduct Unit of Victoria Police, or to the Independent Broad-based Anti- corruption Commission ( IBAC ). For more information, see Chapter 12.4: Complaints against Victoria Police. Human rights under the Human Rights Charter may also have been breached (see ‘Charter of Human Rights and Responsibilities Act’, below). Transfer to another service The authorised psychiatrist may vary a person’s assessment order, court assessment order, TTO or TO to specify that they be assessed or treated by another designated mental health service. This can only occur if it is necessary for the person’s assessment or treatment, and the authorised psychiatrist of the other designated mental health services approves the variation. The chief psychiatrist may also direct a transfer on the same grounds (s 223 MHWA). Regard must be taken of the person’s views and preferences and those of others, in accordance with section 224. The person may apply to the MHT for a review of a decision to transfer within 20 business days after the variation of the order. The MHT may grant the application and ensure they are assessed or treated at the original service, or refuse to grant the application (s 226). Safeguards and complaints The Chief Psychiatrist The Chief Psychiatrist is an independent statutory officer with powers and responsibilities to uphold quality and safety in Victoria’s mental health and wellbeing system. Following the recommendations of the Royal Commission into Victoria’s Mental Health System, the MHWA redefined the role of the Chief Psychiatrist, broadening their jurisdiction to additional settings and practices of clinical mental health such as to oversee mental health and wellbeing services in custodial settings and to regulate chemical restraint. These changes build a governance architecture placing consumers at the centre and supporting the mental health and wellbeing workforce to deliver safe and high-quality treatment and care. Mental health and wellbeing services who fail to comply with the MWHA must report these failures to the Chief Psychiatrist. The Chief Psychiatrist also produces guidelines containing specialist information and advice on clinical practice in mental health and wellbeing services. TheChief Psychiatrist’s role under theMHWAis to provide clinical leadership and expert clinical advice to mental health and wellbeing service providers in Victoria; to promote the highest standard of clinical practices and care by clinical mental health service providers; to promote the rights of people receiving mental health and wellbeing services; and to provide advice to the Minister and the Health Secretary of the Victorian Government Department
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