Mental Health Act, 2014

No.

of 2014

VIRGIN ISLANDS MENTAL HEALTH ACT, 2014 ARRANGEMENT OF SECTIONS

Section PART I PRELIMINARY 1. Short title and commencement.

2. Interpretation.

PART II ESTABLISHMENT, FUNCTIONS AND DUTIES OF THE COMMUNITY MENTAL HEALTH AND SUBSTANCE ABUSE REHABILITATION UNIT 3. Establishment of a Community Mental Health and Substance Abuse Rehabilitation Unit.

4. Functions of the Unit.

5. Duties of the Unit.

6. Staff of the Unit.

PART III OBLIGATIONS OF HEALTHCARE FACILITIES IN RELATION TO PATIENTS 7. Obligations of a Healthcare Facility in relation to patients.

8. Obligations staff of a Healthcare Facility in relation to patients.

PART IV APPLICATIONS, ADMISSIONS AND ENFORCEMENT 9. Emergency Ordered Admission.

10. Powers of a mental health practitioner.

11. Types of admissions.

12. Notification of relatives.

13. Protection from Liability.

14. Voluntary patient.

15. Conversion of voluntary admission to medically recommended admission.

16. Medically recommended admissions.

17. Obtaining informed consent.

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18. Reassessment of medically recommended patients.

19. Court ordered admissions.

20. Detention during Her Majesty’s pleasure.

21. Transfer of a patient from one facility to the other.

22. Expiry of prison sentence during transfer.

PART V CONTROL OF PERSONS SUFFERING FROM MENTAL DISORDER 23. Restraint and seclusion.

PART VI DISCHARGE 24. Conditional discharge of patients.

25. Patient leaving Healthcare Facility without permission.

26. Discharge of voluntary patients.

27. Evidence of discharge.

PART VII COMMUNITY TREATMENT ORDERS 28. Community treatment order.

29. Variation of the terms of community treatment order.

PART VIII ESTABLISHMENT AND CONSTITUTION OF THE MENTAL HEALTH REVIEW BOARD 30. Establishment and functions of the Mental Health Review Board.

31. Appeals from decisions of the Board.

PART IX MANAGING THE PROPERTY AND AFFAIRS OF PATIENTS 32. Property and affairs of patients.

33. General functions of the Court.

34. Special powers of the court.

35. Supplementary provisions as to Wills executed under section 34(1)(e).

36. Power of court in cases of emergency.

37. Power to appoint receiver.

38. Vesting of stock in curator appointed outside the Territory.

39. Preservation of interests in patient’s property.

40. Medical and legal visitors.

41. Appeals.

42. Rules.

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43. Accounts.

PART X MISCELLANEOUS 44. Bilateral agreements.

45. Forgery, false statements, etc.

46. Ill-treatment of patients.

47. Permitting escape of patients.

48. Special offences against patients.

49. Prohibition.

50. Regulations.

51. Transfer of Government officers and employees to the BVI Health Services.

52. Repeal.

SCHEDULE 1 SCHEDULE 2 SCHEDULE 3 SCHEDULE 4

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No.

of 2014

Mental Health Act, 2014

Virgin Islands

I Assent

Governor , 2014

VIRGIN ISLANDS No.

of 2014

A Bill for An Act to provide for a comprehensive legal regime for the provision of mental health services in the Territory and for related matters.

[Gazetted

, 2014]

ENACTED by the Legislature of the Virgin Islands as follows:

PART I PRELIMINARY Short title and commencement.

Interpretation.

1. This Act may be cited as the Mental Health Act, 2014 and shall come into force on such date as the Governor may, by Proclamation published in the Gazette, appoint.

2. (1) In this Act, unless the context otherwise requires, “Board” means the Mental Health Review Board established under section 30(1); “case manager” means a psychiatric nurse or social worker assigned to the mental health care of a patient; “community psychiatric and psychological services” includes

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(a) the provision of mental health care services at an out-patient clinic or in a health center; (b) the provision of rehabilitative services; (c) the provision of home care and support services for persons suffering from mental disorders; (d) narcotic drugs and other substance abuse counseling services; (e) rendering of psychosocial counseling assistance to clients in (i)

crisis centers for abused women and children;

(ii)

drug rehabilitation units;

(iii)

halfway houses; and

(iv)

schools and similar institutions;

(f) other psychological services as may be needed. “community treatment order” means a certificate evidencing the conditions attached to the treatment of a patient the in community under this Act; “conditional discharge” means the release of a patient from a health facility subject to conditions; “Court” means the High Court; “discharge” means an unconditional release of a patient from a health facility; “healthcare facility” includes a clinic, walk-in clinic, a surgical centre, a birth centre, a dialysis centre, a maternity hospital, a diagnostic facility, a therapeutic facility, a health practitioner’s office, a medical practitioner’s office or any other facility which offers medical or surgical care to any person; “guardian” means a person who has attained the age of eighteen years and is acting as a guardian ad litem in relation to a person suffering from a mental disorder; “legal practitioner” means a barrister-at-law or a solicitor with the right of audience in the court; “manager” means the person appointed as such under section 6(1); “medical practitioner” means a person registered as a medical doctor under No. 4 of 2000

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the Medical Act, 2000; “mental disorder” means (a) a health condition that is characterised by (i)

alterations in thinking, mood or behaviour, or

(ii)

a combination of alterations in thinking, mood and behavior,

associated with distress, impaired functioning, or distress and impaired functioning; (b) a health condition arising from the use of a narcotic drug or substance; “mental health care” means either or any combination of the following: (a) the assessment and diagnosis of a person’s condition for, (b) the treatment for, (c) care and rehabilitation of a patient after treatment for mental disorder or suspected mental disorder; “mental health practitioner” means (a) a medical doctor trained to give mental health care, (b) a clinical psychologist, (c) a psychiatric nurse meaning a nurse trained in psychiatric nursing, (d) a psychiatrist, (e) a person or professional, trained in a skill relevant to mental health care, or (f) a mental health who is a nurse trained in psychiatric nursing and elements of social work, and duly registered in the Territory;

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“mental health promotion services” includes (a) the co-ordination of mental health promotion within the primary health care services; and (b) sensitization and mental health education for the general population.

“Minister” means the Minister responsible for Health; “nearest relative” includes any of the following persons in order of priority, but relatives of the whole blood being preferred to relatives of the same description of the half blood with respect to paragraph (b) to (h) and, the eldest of any two or more relatives in any of those paragraphs preferred regardless of gender: (a) a spouse; (b) son or daughter; (c) father or mother; (d) brother or sister; (e) grandfather or grandmother; (f) grandson or granddaughter; (g) uncle or aunt; or (h) nephew or niece; “patient” means a person admitted to a Healthcare Facility as a patient for either of, or any combination of, the following services: (a) diagnostic service; (b) treatment service; (c) a rehabilitation service; “personal representative” means a person representing a patient’s interest in any specified respect or of exercising specified rights on the patient’s behalf,; “prescribed” means prescribed by regulations under this Act; “property” means property of any description;

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No. 4 of 2000

“psychiatrist” means a medical doctor with a post graduate qualification in psychiatry and who is duly registered under the Medical Act, 2000; “psychopathic disorder” means a persistent disorder or disability of the mind that results in abnormally aggressive or seriously irresponsible conduct on the part of a patient and requires, or is susceptible to, medical treatment;

No. 5 of 2009

“registered nurse” means a nurse registered under the Nurses and Midwives Act, 2009, but excludes a person who is registered as a midwife or as a nursing assistant only; “restraint” means (a)

any manual method, or physical or mechanical device, material, or equipment attached or adjacent to the person’s body that the person cannot easily remove, which restricts freedom of movement or normal access to the person’s body; or

(b)

the control of behavior or restriction of a person’s freedom of movement by use of a drug that is not a standard treatment for the person’s medical or psychiatric condition;

“seclusion” means the medically recommended confinement of a person alone in a room or an area from which the person is physically prevented from leaving, but does not include a time-out; “psychiatrist attached to a Healthcare Facility” means the medical specialist in Psychiatry responsible for the patients and administration of the medical staff of the Healthcare Facility to which he or she is attached; “specially trained medical doctor” means a medical doctor who is duly registered in the Territory, and has received special training in the interpretation and administration of this Act; “time-out” means a period where a patient agrees to remain in an unlocked room or area and maintains the choice to leave without the fear of adverse consequence or of being placed in seclusion or restraint; and “Will” includes a codicil.

(2) Where in Schedule 2 references are made to “Involuntary Admission” they shall, for purposes of this Act, be read as references to “medically recommended admission”.

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PART II ESTABLISHMENT, FUNCTIONS AND DUTIES OF THE COMMUNITY MENTAL HEALTH AND SUBSTANCE ABUSE REHABILITATION UNIT 3. There is established by this Act, a Community Mental Health and Establishment of Substance Abuse Rehabilitation Unit of the BVI Health Services Authority Unit. referred to in this Act as the “Unit�.

Functions of the Unit.

4. The Unit shall (a)

set the strategic direction for the provision of mental health services including the development of a strategic plan and the determination of policies;

(b)

support the establishment and management of programmes and services that promote, protect and maintain good mental health in communities throughout the Territory;

(c)

coordinate the integration of services at the Hospital and other public healthcare facilities to ensure continuous improvement in the quality of the care to patients;

(d)

ensure the participation and involvement of the community in relation to all the services of the Unit, intersectoral collaboration and partnership;

(e)

make modern methods of treatment available to the public so far as sufficient funds are at its disposal to do so; to ensure that patients and other people with a mental disorder are informed of their legal rights and other entitlements under this Act and that the relevant provisions of this Act are explained to patients and other people with a mental disorder in the language, mode of communication or terms which they are most likely to understand.

(f)

5. The Unit shall in furtherance of its functions, discharge the following Duties of the Unit. duties: (a) promote the re-integration into society, of persons who, as a result of a past mental health problem encounter difficulties in their family, educational, professional or social life; and (b)

any other duties incidental to the performance of its functions.

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Staff of the Unit

No. 14 of 2004

6. (1) The Unit shall comprise of a manager who shall be the head of the Unit and other mental health practitioners appointed to the Unit by the BVI Health Authority Board established under section 5 of the BVI Health Services Authority Act, 2004.

(2) The manager shall be a senior mental health practitioner with training or experience in health administration.

(3) The BVI Health Authority Board may appoint such other officers, employees and agents as it considers necessary and proper for the administration, management and performance by the Unit of its functions under this Act.

No. 14 of 2004

(4) The provisions of section 9 (2) and (3) of the BVI Health Services Authority Act, 2004 shall apply in the case of staff appointed under this section in the same manner as if such staff were appointed under that section.

PART III OBLIGATIONS OF HEALTHCARE FACILITIES IN RELATION TO PATIENTS

Obligations of a Healthcare Facility in relation to patients.

7. For the purposes of this Act, a Healthcare facility shall (a)

provide health care to persons as in-patients or out-patients; and

(b)

in providing health care, ensure the protection of its patients in accordance with

Schedule 1.

Schedule 2.

Obligations of the staff of a Healthcare Facility in relation to l patients.

(i)

the “Patient’s Bill of Rights”, specified in Schedule 1; and

(ii)

the standard and principles enshrined in the “Principles for the protection of persons with Mental illnesses and for the improvement of Mental Health Care”, specified in Schedule 2.

8. (1) The Director or person in charge of a Healthcare Facility shall ensure that an adequate number of appropriately qualified staff are appointed for the proper functioning of the facility.

(2) A Mental Health Practitioner in a facility shall, where necessary, consult or liaise with members of the other branches of the medical practice.

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PART IV APPLICATIONS, ADMISSIONS AND ENFORCEMENT 9. (1) A person, who by reason of another person’s general behaviour Emergency reasonably suspects that other person to be suffering from a mental disorder and ordered admission. likely to be of immediate threat to themselves or the general public, may notify a police officer. .

(2) It shall be the duty of a police officer notified under subsection (1) to if necessary, detain and convey the person directly to a hospital or Healthcare Facility for assessment and, the officer shall remain at the hospital or Healthcare Facility to ensure safety while the person is being assessed.

(3) A person conveyed to a hospital or Healthcare Facility under subsection (2) shall be assessed within two hours of their arrival to that hospital or Healthcare Facility.

(4) It is the duty of a healthcare professional at the hospital or Healthcare Facility where the person is conveyed to under subsection (2) to notify the relevant Mental Health Officer if their assistance is required.

(5) A Mental Health practitioner or relevant Mental Health Officer shall determine whether section 11 applies to the person as assessed under this section.

(6) Where a police officer is notified under subsection (1), he or she may convey the suspected person to a Healthcare Facility without reference to the Court.

(7) For purposes of this section, a police officer may forcefully enter any premises for the purpose of gaining access to the suspected person.

10. (1) A mental health practitioner may remove from the street or some other Powers of a public place, a person who appears to the mental health practitioner to be mental health practitioner. suffering from a mental disorder and is a threat to themselves or the general public.

(2) A mental health practitioner may at any reasonable time enter and inspect any premises if the mental health practitioner has reason to believe that a person who is suffering from a mental disorder is on that premises, and is a danger to themselves or the general public and if that person is found, the mental health practitioner may remove or cause the person’s removal from the premises.

(3) A removal under subsection (1) or (2) may be made with or without the assistance of a police officer and, the person so removed shall be conveyed to a Healthcare Facility to be admitted, detained and provided with mental health care.

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(4) The admission and detention of a person under this section shall be treated as an admission and detention under section 16.

(5) A police officer who has been requested to assist in the detention of a person under subsection (3) shall comply with such a request made by a mental health practitioner.

Types of admissions.

11. For purposes of this Act, a person may be admitted to a Healthcare Facility (a) under section 9, as a subject of an emergency ordered admission; (b) under section 14, as a voluntary patient; (c) under section 16, as a medically recommended patient; or (d) under section 19, as the Court ordered patient if admitted.

Notification of relative.

12. A mental health practitioner concerned with a person suspected of suffering from a mental disorder and who is conveyed to a Healthcare Facility and admitted shall, as soon as is reasonable practicable after the person has been so conveyed and admitted, inform the person’s nearest relative of the events leading to the person’s conveyance and of the person’s admission in the Healthcare Facility.

Protection from Liability.

13. Except for proof of malice, a psychiatrist, designated medical officer or designated mental health practitioner or police officer or an employee of a Health facility shall not be held liable for any reasonable action undertaking during the performance of duties under this Act.

Voluntary patient.

14. (1) A person suspected of suffering from a mental disorder, who accompanies a mental health practitioner to a Healthcare Facility under section 10(3) and gives his or her consent to be admitted may, subject to section 17(1), be admitted as a voluntary patient for observation and treatment by a psychiatrist, designated medical officer or designated mental health practitioner.

(2) The consent given under subsection (1) shall be recorded on the prescribed form.

(3) A person admitted to a Healthcare Facility under subsection (1) shall be examined by a psychiatrist, designated medical officer or designated mental health practitioner at the facility before the expiration of a period of twenty four hours from the time of his or her admission, and if the person admitted is a person

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under the age of sixteen years, he or she shall be examined in the presence of his or her nearest relative or, guardian.

(4) A minor or a person without legal capacity shall not be admitted to a Healthcare Facility, except with the consent of his or her nearest relative or a guardian.

Conversion of voluntary admission to a medically recommended admission.

Conversion of voluntary admission to a medically recommended admission.

15. (1) Subject to section 18, an admission under section 14 may be converted to a medically recommended admission if the person admitted requests a discharge or if the discharge is requested by the nearest relative of the guardian, but the person is found on re-evaluation by the psychiatrist, designated medical officer or designated mental health practitioner attending to him or her (a) not to be ready for discharge; (b) to be a danger to others and himself or herself; or (c) that, his or her mental illness is severe and his or her judgement impaired to an extent that failure to admit or retain him or her is likely to lead to a serious deterioration in his or her condition, or will prevent the giving of appropriate treatment that can only be given by admission to a Healthcare Facility.

(2) A patient whose voluntary admission to a Healthcare Facility is to be converted into a medically recommended admission under subsection (1) or his or her nearest relative or guardian shall, be informed by the psychiatrist, designated medical officer or designated mental health practitioner of the reasons for the conversion and of any treatment plan, in a form and language he or she understands.

16. (1) A person may be to be admitted into a Healthcare Facility for mental Medically recommended health care as a medically recommended patient, if admissions.

(a) the person is suspected to be suffering from a mental disorder that constitutes a threat to other lives or to his or her own life; and (b) the mental disorder is capable of being treated in a Healthcare Facility. (c) the person has previously been admitted to a Healthcare Facility as a voluntary patient and his or her status is changed on the recommendation of the psychiatrist, designated medical officer or designated mental health practitioner assigned to treat him or her; or

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(d) the nearest relatives or guardian to the person to be admitted applies to a Healthcare Facility for the admission of the person.

(2) The recommendation of the psychiatrist, designated medical officer or designated mental health practitioner under subsection (1)(c) shall be evidenced by a medical certificate to that effect, signed by the psychiatrist, designated medical officer or designated mental health practitioner attending to the patient and the content concurred by another medical certificate signed by a person within the category specified under subsection (4).

(3) An application made under subsection (1)(d) in respect of the person to be admitted shall be submitted together with two medical certificates issued by the treating psychiatrist, designated medical officer or designated mental health practitioner and the content concurred by another medical certificate signed by a person within the category specified under subsection (4) (4) For the purposes of this section, the following are persons who may concur: (a) a clinical psychologist (b) a psychiatrist other than the psychiatrist currently attending the patient; (c) a medical practitioner; (d) a nurse trained in mental health; (e) a psychiatric social worker.

(5) A medical certificate issued under this section shall be in the prescribed form and shall contain (a) a statement by the author that in his or her opinion, there is sufficient evidence that the patient is suffering from a mental disorder which warrants his or her detention in a Healthcare Facility and that the patient ought to be admitted and detained in the interest of his or her own health and safety; (b) the reasons for his or her opinion; (c) an indication as to whether other methods of dealing with the patient are available, and if so, why they are not appropriate; and (d) the date of examination of the patient.

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(6) Each medical certificate shall be completed within twenty-four hours of examining the patient and be within seven days of each other.

(7) A person shall not issue a medical certificate under this section, if the person is (a) the applicant under subsection (1)(d); (b) a partner of, the applicant referred to under paragraph (a) or a medical practitioner by whom a medical certificate in respect of the person to be admitted is issued; (c) a person employed as an assistant by the applicant or by the medical practitioner referred to under paragraph (b); (d) a person who receives payment or has an interest in the receipt of any payment made on account of the maintenance of the patient; or (e) a medical practitioner who is related by blood or marriage to the patient.

(8) The psychiatrist, designated medical officer or designated mental health practitioner attached to the Healthcare Facility to which an application is brought under subsection (1)(d) shall, consider the merits of the application and grant or refuse the application.

(9) The grant or refusal of an application brought under subsection (1)(d) shall, be communicated to the applicant not later than fourteen days after the decision is taken.

(10) A person, in respect of whom an application is brought under subsection (1), shall only be admitted into the Healthcare Facility upon a grant of the application.

(11) A person admitted to a Healthcare Facility under this section shall not be detained in the facility for more than twenty-one days at a time without being reassessed and a fresh medical certificate issued.

17. (1) Except for emergencies, the psychiatrist, designated medical officer or Obtaining designated mental health practitioner attending to a patient admitted under section informed consent.

14 shall obtain the patient’s informed consent before treatment.

(2) For purposes of subsection (1), informed consent means consent obtained freely, without threats or improper inducements, after appropriate

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disclosure to the patient of adequate and understandable information in a form and language understood by the patient on (a) the diagnostic assessment and diagnosis; (b) the purpose, method, likely duration and expected benefit of the proposed treatment; (c) alternative modes of treatment, including those less intrusive; and (d) possible pain or discomfort, risks and side-effects of the proposed treatment.

(3) In any other case, informed consent shall be obtained, as appropriate, from the patient’s nearest relative or guardian.

Reassessment of medically recommended patients.

18. (1) A person admitted to a Healthcare Facility under section 15 shall be re-assessed on the twenty-first day after admission and on every twenty-first day following the immediate past assessment.

(2) A medical certificate shall be issued by the examining psychiatrist, designated medical officer or designated mental health practitioner after each assessment of the patient.

Court ordered admissions.

19. (1) Where the Court suspects that a person charged before it is suffering from a mental disorder and might be in need of mental health care, the court may make an order that the person charged be remanded at a Healthcare Facility as a patient for assessment pending adjudication of the case, and if necessary, for treatment.

(2) The court shall upon ordering the admission of a person under subsection (1), require from a psychiatrist, designated medical officer or designated mental health practitioner attached to the Healthcare Facility, a medical report regarding whether the individual is suffering from a mental disorder which may affect their ability to be tried in the court or regarding their fitness to plea which may affect their competence to stand trial.

(3) A person shall not be remanded under this section for more than fourteen days at any one time.

(4) At the expiration of the period of remand, the person remanded shall be returned to the court and the medical report shall be submitted to the court as required, and if psychiatrist, designated medical officer or designated mental health practitioner is of the opinion that a further remand is necessary shall state so in the report.

(5) The status of a person remanded under this section shall not be changed to that of a voluntary patient unless the court that remanded the person so permits.

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20. (1) Notwithstanding anything to the contrary under this Act, where a Detention during person on trial in a criminal case before the High Court is found unfit to plead or Her Majesty’s pleasure. is found not guilty by reason of insanity, the court may order the person to be detained at Her Majesty’s pleasure and the Governor may give an order for the safe custody of that person during his or her detention.

(2) The Governor may, by warrant under his or her hand, discharge a person detained under this section, conditionally or absolutely.

21. The power to transfer a person under section 10(2) of the Prison Ordinance for medical or surgical treatment and the procedure for that transfer shall apply, with the necessary modifications, to this Act, where a person admitted and detained under this Act is in need of mental health care.

Transfer of a patient from one facility to the other.

Cap. 166

22. Where a person is detained in a Healthcare Facility on transfer from a Expiry of prison sentence during prison and transfer.

(a)

his or her sentence of imprisonment expires while he or she is still in the facility, and

(b)

at the time of the expiration of his or her sentence he or she has not recovered sufficiently to be discharged from the facility

the psychiatrist, designated medical officer or designated mental health practitioner attached to the facility may change the person’s status to that of a voluntary or medically recommended patient and section14 or 15 shall apply accordingly.

PART V CONTROL OF PERSONS SUFFERING FROM MENTAL DISORDER 23. (1) For the purposes of this Act, “designated medical practitioner” means Restraint and. a medical officer who is assigned to work under the supervision of a psychiatrist seclusion in a Healthcare Facility.

(2) A police officer who is notified under section 9(1) shall not, in an attempt to convey the person to a healthcare facility, restrain that person except where the police officer is of the opinion that the person is violent and that (a)

the restraint is necessary to ensure the physical safety of other persons and the restrained person; and

(b)

other less restrictive interventions previously applied to the person have proved to be ineffective.

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(3) A patient shall not be physically restrained or secluded in a Healthcare Facility except by an order of a psychiatrist or designated medical practitioner, where after an assessment of the patient by the psychiatrist or designated medical practitioner, the psychiatrist or designated medical practitioner is of the opinion that (a) the patient poses an imminent danger to other persons and himself or herself; and (b) less restrictive interventions previously applied to the patient have proved to be ineffective.

(4) An order for the physical restraint or seclusion of a patient shall expire after (a) four hours from the time the order is made, in the case of an adult, (b) two hours from the time the order is made, in the case of persons between the ages of nine and seventeen years, or (c) one hour from the time the order is made, in the case of a child under the age of nine years, or earlier, as soon as it is safe to do so.

(5) A psychiatrist or designated medical practitioner who orders (a) the restraint of a person under subsection (1), or (b) the restraint or seclusion of a patient under subsection (2), shall conduct an assessment of the person or patient at the end of the first hour after making the order to determine whether the order should continue to have effect or be revoked.

(6) If an order is made under subsection (1) or (2), the psychiatrist or designated medical practitioner making the order shall designate a nurse to monitor, assess and re-evaluate the restrained or secluded person or patient while the order is in effect.

(7) The restraint or seclusion of a person or patient shall not be used (a) as a form of punishment to the person or patient; or

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(b)

for the convenience of the staff of a Healthcare Facility.

(8) A person who contravenes subsection (2), (3) or (7) commits an offence and is liable on summary conviction to a fine not exceeding ten thousand dollars or to a term of imprisonment not exceeding seven years, or both.

PART VI DISCHARGE 24. (1) Subject to this section, the psychiatrist, designated medical officer or Conditional designated mental health practitioner attached to a Healthcare Facility may permit discharge of patients. a patient detained at that facility for mental health care, other than a person specified under sections 19 and 20, to be discharged from the facility subject to terms and conditions, for a period of time the psychiatrist considers appropriate, if (a) the discharge is necessary for the recovery of the patient; and (b) the patient is not a threat to other persons and himself or herself.

(2) A patient who qualifies for a conditional discharge under subsection (1) shall, (a) by a relative, or (b) through a personal representative, apply in writing addressed to the psychiatrist attached to the Healthcare Facility, for his or her conditional discharge.

(3) A patient who is discharged conditionally may be placed under the supervision of a case manager whose name shall be specified in the community treatment order under section 28 and, where appropriate in the certificate of discharge.

(4) In the absence of a relative or personal representative, the psychiatrist, designated medical officer or designated mental health practitioner attached to the Healthcare Facility may grant an application under subsection (2) (a) subject to appropriate follow-up visits.

(5) Prior to the discharge of a patient under subsection (1), the psychiatrist, designated medical officer or designated mental health practitioner shall assess the needs of the patient, prepare a mental health care plan for the patient and hold a discharge planning meeting with the following persons to discuss the plan and terms and conditions attached to the discharge:

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(a) the patient; (b) the person who will sign the undertaking under subsection (6); (c) the case manager assigned to the patient; and (d) the social worker assigned to the patient.

(6) A patient may not be discharged under this section unless the nearest relative of the patient, his or her guardian or some other person approved by the psychiatrist, designated medical officer or designated mental health practitioner attached to the facility, undertakes in writing that during the period of discharge he or she will, (a) be responsible for the patient’s welfare; (b) allow the patient to be seen at any time by a mental health practitioner authorised by the psychiatrist attached to the facility; and (c) report immediately to the psychiatrist, designated medical officer or designated mental health practitioner attached to the facility, any visible signs of deterioration in the patient’s mental health condition.

(7) The psychiatrist, designated medical officer or designated mental health practitioner may revoke the conditional discharge order and, order the return of a patient to the facility, if he or she receives a report on the patient under subsection (6)(c).

(8) Until absolutely discharged from a Healthcare Facility, a patient who has been conditionally discharged from the facility is subject to the same control as if he or she is in the facility.

(9) A patient discharged under this section is deemed to be discharged absolutely on the expiration of twelve months from the date of the discharge, if a revocation order is not made under subsection (7) in respect of the patient before the twelfth month after the discharge.

Patient leaving Healthcare facility without permission.

25. A patient who has been admitted to a Healthcare Facility under this Act and absents himself or herself from the facility without having been (a) conditionally discharged under this Act, or (b) absolutely discharged,

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may be apprehended without a warrant and returned to the facility by a person authorised in writing by the psychiatrist, designated medical officer or designated mental health practitioner attached to the facility or by a police officer.

26. (1) A voluntary patient may request a discharge by applying in writing to Discharge of the psychiatrist attached to the Healthcare Facility in which he or she is receiving voluntary patients. mental health care.

(2) A person to whom an application is submitted under subsection (1) may discharge the patient if he or she is satisfied that (a)

the discharge is in the interest of the patient; and

(b)

the patient does not need further mental health care in the facility.

27. The discharge of a patient under section 24 or 26 shall be evidenced by a Evidence of certificate signed by the psychiatrist, designated medical officer or designated discharge. mental health practitioner attached to the Healthcare Facility in which the patient was admitted.

PART VII COMMUNITY TREATMENT ORDERS 28. (1) A psychiatrist responsible for the mental health care of a patient may, Community treatment order. in collaboration with the case manager, impose a community treatment order on (a)

a conditionally discharged patient on the discharge of the patient; or

(b)

a patient brought to a Healthcare Facility involuntarily for mental health care, other than a person detained under section 20.

(2) Prior to making an order under subsection (1), a psychiatrist, designated medical officer or designated mental health practitioner responsible for the mental health care of the patient shall prepare a mental health care plan, which shall be presented to and discussed at a meeting with the the persons referred to in section 24 (5).

(3) A community treatment order shall not be made in respect of any patient, unless the patient or, the patient’s nearest relative, guardian or personal representative, have consented to the plan.

(4) The mental health care plan shall be reviewed by the attending psychiatrist, designated medical officer or designated mental health practitioner

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regularly and revised as necessary after obtaining the patient’s consent or that of the patient’s nearest relative or guardian.

(5) In considering whether to make an order under subsection (1), psychiatrist, designated medical officer or designated mental health practitioner assigned to the mental health care of the patient, shall have regard to (a)

the history of any deterioration in the patient’s mental health, that required hospitalisation;

(b)

the likelihood of a current deterioration in the patient’s mental health;

(c)

a record of any examination of the patient conducted by a mental health practitioner who is a psychiatrist or a nurse, within seventy-two hours prior to the making of any community treatment order;

(d)

the ability of the patient to comply with the community treatment order; and

(e)

the outcome of any meeting held with the persons referred to in section 24 (5) to discuss the mental health care plan prepared by the psychiatrist, designated medical officer or designated mental health practitioner for the patient.

(6) A community treatment order made under subsection (1) shall be valid for a period of six months, unless revoked at an earlier date by the psychiatrist, designated medical officer or designated mental health practitioner in collaboration with the case manager, (a)

where the patient has failed to comply with the terms and conditions of the order; or

(b)

when the patient or, the patient’s nearest relative, guardian or personal representative withdraws consent to the mental health care plan.

(7) Notwithstanding subsection (6), a community treatment order made under subsection (1) may be renewed after its expiration and each renewed order shall be valid for a period of six months, unless revoked on any of the grounds specified under subsection (6).

(8) A community treatment order shall be evidenced in writing and signed by the psychiatrist, designated medical officer or designated mental health practitioner making the order.

22

29.

(1) A patient who is aggrieved by the imposition of a community treatment order on him or her under section 28 may, by himself or herself or by a personal representative, lodge a complaint to the Board established under section 30 against the order.

Variation of the terms of community treatment order.

(2) On each review under this section, the Board shall review the patient's community treatment order to determine whether (a)

the psychiatrist, designated medical officer or designated mental health practitioner has complied with section 28 in making, revoking or renewing the order (as the case may be); and

(b)

the order is capable of being implemented by the persons referred to in section 24 (5).

(3) The Board may order the psychiatrist, designated medical officer or designated mental health practitioner to revise the order, if the Board is satisfied that (a)

the psychiatrist, designated medical officer or designated mental health practitioner has not complied with section 28 in making, revoking or renewing the order (as the case may be); or

(b)

the plan is not capable of being implemented by the persons referred to in section 24 (5).

PART VIII ESTABLISHMENT AND CONSTITUTION OF THE MENTAL HEALTH REVIEW BOARD 30. (1) There is established by this Act, a Mental Health Review Board Establishment and functions of (referred to in this Act as the “Board�).

(2) Schedule 3 has effect with respect to members of the Board and otherwise.

the Mental Health Review Board.

Schedule 3

(3) Subject to paragraph 5 of Schedule 3, the Board is duly constituted for the discharge of its duties under this Act by any three of its members, and a reference to the Board under this Act shall be construed accordingly.

(4) A patient or a personal representative of a patient detained in a Healthcare Facility under section 15 or 16 who believes that the detention of the patient is unreasonable may apply in writing to the Board for a review of the circumstances of the detention.

23

(5) The Board shall, within twenty-eight days from the date of its receipt of an application (a)

have the patient brought before it to be questioned;

(b)

inquire into the reasons for the detention of the patient;

(c)

examine the reasons why the application for a review has been made to it;

(d)

cause the patient to be medically examined further, if necessary; and

(e)

hear and admit evidence relevant to the application.

(6) The Board may, after hearing the application for review of the detention, (a)

dismiss the application; or

(b)

order the immediate discharge of the patient

and make further orders it considers appropriate.

(7) No civil proceedings may be brought against any member of a Mental Health Review Board for anything he or she may do or report or say in the course of the exercise or intended exercise of his or her powers, duties, or functions under this Act, unless it is shown that he or she acted in bad faith.

Appeals from decisions of the Board.

31. (1) A person aggrieved by a decision of the Board may appeal against that decision to the High Court.

(2) An appeal under this section shall be brought by originating summons within fourteen days from the date of notice of the decision of the Board.

PART IX MANAGING THE PROPERTY AND AFFAIRS OF PATIENTS

Property and affairs of patients.

32. (1) Where the High Court is satisfied, after considering medical evidence, that a person is incapable of managing and administering his or her property and affairs by reason of a mental disorder, the court may exercise the powers conferred on it under this Part.

(2) For purposes of this Part, “patient� means a person in respect of whom the court is satisfied under subsection (1) as being incapable of managing and administering his or her property and affairs.

24

33. (1) The court may in respect of the property and affairs of a patient, do or General functions of the ensure the doing of things as appear to be necessary or expedient for court.

(a)

the maintenance or other benefit of the patient or members of the patient’s family;

(b)

making provision for other persons or purposes for whom or which the patient might be expected to provide if the patient were not suffering from mental disorder; or

(c)

administering the patient’s affairs.

(2) Subject to subsection (3), in the exercise of powers conferred on it by subsection (1), the court shall have regard to the requirements of the patient.

(3) Any rule of law that, immediately before the commencement of this Act, restricted the enforcement by a creditor of rights against the property of a mentally disordered person shall continue to apply in respect of that property when under the control of the court.

(4) Subject to subsections (2) and (3), the court shall, in administering the affairs of a patient, have regard to (a)

the interest of creditors; and

(b)

the desirability of making provision for obligations of the patient, notwithstanding that they may not be legally enforceable.

(5) For the purpose of this Part, “family” means a child, spouse or dependant of the patient.

34. (1) Without affecting the generality of section 33, the court may at the Special powers instance of the Attorney General, make orders and give directions and of the court. authorisations as it considers appropriate for the purposes of that section, and in particular may, for those purposes, make orders and give directions and authorisations for (a)

the control and management of any property of the patient, with or without the transfer or vesting of property or the payment into court of securities;

(b)

the sale, exchange, charging or other disposition of or dealing with any property of the patient;

25

(c)

the acquisition of any property in the name or on behalf of the patient;

(d)

the settlement of any property of the patient, or the gift of any property of the patient to any person or for any purposes mentioned in paragraphs (a) and (b) of section 33(1);

(e)

the execution of a Will for the patient, making a provision which could be made by a Will executed by the patient if the patient were not suffering from a mental disorder, whether by way of disposing of property or exercising a power or otherwise;

(f)

the carrying on by a suitable person of any profession, trade or business of the patient;

(g)

the dissolution of a partnership of which the patient is a member;

(h)

the carrying out of any contract entered into by the patient;

(i)

the conduct of legal proceedings in the name of the patient or on the patient’s behalf including any order, direction or authority to present a petition in the name or on behalf of the patient for

(j)

(i)

divorce or nullity of marriage;

(ii)

presumption of death or dissolution of marriage; or

(iii)

judicial separation;

the reimbursement out of the property of the patient with or without interest, money applied by any person (i)

in the payment of debts of the patient;

(ii)

for the maintenance or other benefit of the patient or members of the patient’s family; or

(iii)

in making provisions for other persons for whom or purposes for which, the patient might be expected to provide, if the patient were not suffering from a mental disorder; or

26

(k)

the exercise of any power vested in the patient beneficially or as a guardian, trustee or otherwise, including a power to consent.

(2) If provision is made under subsection (1) for (a)

the settlement of any property of a patient, or

(b)

the exercise of a power vested in a patient of (i)

appointing trustees, or

(ii)

retiring from a trust,

the court may also make as respects the property settled or trust property, consequential vesting or other orders the court considers appropriate.

(3) The power of the court under subsection (1) (a)

to provide for the settlement of the property of a patient is not exercisable at any time when the patient is an infant; and

(b)

to make or give an order, direction or authority for the execution of a Will for a patient (i)

is not exercisable at any time when the patient is an infant; and

(ii)

shall not be exercised unless the court has reason to believe that the patient is incapable of making a valid Will for himself or herself.

(4) Where under this section a settlement has been made of any property of a patient and the court is satisfied at any time before the death of the patient that, (a)

a material fact was not disclosed at the time when the settlement was made, or

(b)

there has been a substantial change in circumstances after the making of the settlement,

the court may make an order varying the settlement as it thinks fit and give any consequential directions.

27

Supplementary provisions as to Wills executed under section 34 (1)(e).

35. (1) Where the court makes an order or, gives a direction or authorisation under section 34(1)(e), requiring or authorising a person to execute a Will for a patient, any Will executed pursuant to that order, direction or authorisation shall be (a)

expressed to be signed by the patient acting by the authorised person;

(b)

signed by the authorised person with the name of the patient and with his or her own name in the presence of two or more persons present at the same time;

(c)

attested and subscribed by those witnesses in the presence of the authorised person; and

(d)

sealed with the official seal of the court.

(2) Subject to subsection (3), a Will executed in the manner required by subsection (1) has the like effect for all purposes as if (a)

Cap. 81

the patient were capable of making a valid Will; and

(b) the Will had been executed by the patient in the manner required by the Wills Act. (3) Subsection (2)(a) does not apply

Power of court in cases of emergency.

(a)

in relation to a Will to which that subsection refers, in so far as the Will disposes of immovable property outside the Territory; or

(b)

where the patient is domiciled in a country or territory outside the Territory at the time of the execution of a Will under subsection (1), and any question of testamentary capacity of the patient with respect to the property or matter which is a subject matter of the Will is to be determined by the law of his or her domicile;

36. Where it is represented to the court, and the court is of the view that (a)

a person might be incapable of managing and administering his or her property and affairs by reason of mental disorder, and

(b)

it is necessary to make immediate provision for any of the matters referred to under section 34,

28

then pending the determination of the question whether that person is so incapable, the court may exercise in relation to the property and affairs of that person any of the powers conferred on it in relation to the property and affairs of a patient by this Part so far as is necessary for enabling that provision to be made.

37. (1) The court may make an order appointing as a receiver for a patient, a person or the holder of an office so specified in the order.

Power to appoint receiver.

(2) A receiver appointed under subsection (1) shall do as the court, in the performance of its functions and exercise of its powers under sections 33 and 34 respectively, orders, directs or authorises him or her to do in relation to the property and affairs of the patient.

38. (1) Where the court is satisfied (a)

that under the law in force in a place outside the Territory, a person has been appointed to exercise powers with respect to the property or affairs of some other person on the ground that the other person is incapable of managing and administering his or her property and affairs by reason of a mental disorder; and

(b)

that having regard to the nature of the appointment and to the circumstances of the case it is expedient that the court exercise its powers under this section,

Vesting of stock in curator appointed outside the Territory.

the court may, direct any stock standing in the name of that other person or the right to receive dividends with respect to that stock to be transferred into the name of the person so appointed or otherwise dealt with as requested by that person, and give directions as it considers appropriate for dealing with accrued dividends.

(2) For purposes of this section “stock” includes shares and any fund, annuity or security transferable in the books kept by a body corporate, unincorporated company or society, or by an instrument of transfer either alone or accompanied by other formalities, and “dividends” are to be construed accordingly.

39. (1) Where (a)

property of a person has been disposed of under this Part; and

(b)

under the person’s Will or intestacy or by any gift perfected or nomination taking effect on his or her death any other

29

Preservation of interests in patient’s property.

person would have taken an interest in the property but for the disposal, the other person is entitled to the like interest, if any, so far as the circumstances allow, in property belonging to the estate of the deceased that represents the property disposed of, and if the property disposed of were real property, and property representing it is also real property, then so long as it remains part of the estate, it is to be treated as if it were personal property.

(2) In ordering, directing or authorising the disposal of property under this Part which would result in the conversion of personal property into real property, the court may direct that the real property representing the personal property disposed of be treated as if it were personal property, so long as it remains the property of the patient or forms part of the patient’s estate.

(3) For purposes of subsections (1) and (2), references to the disposal of property are references to (a)

the sale of, exchange with, charging of or other dealing with, property other than money and otherwise than by Will,

(b)

the removal of property from one place to another,

(c)

the application of money to acquire property, or

(d)

the transfer of money from one account to another,

and references to property representing property disposed of are to construed accordingly and as including the result of successive disposals.

(4) The court may give directions as appear to it to be necessary or expedient for the purpose of facilitating the operation of subsection (1), including the carrying of money to a separate account and the transfer of property other than money.

(5) Subject to subsection (6), where the court has ordered, directed or authorised the expenditure of money to carry out permanent improvements on, or otherwise for the permanent benefit of, any property of a patient, it may order that the whole or any part of that money be made a charge on the property whether with interest at a specified rate or without interest, and (a)

a charge under this subsection may be made in favour of (i)

the person who financed the expenditure as may be just; and

30

(ii)

(b)

a person as trustee for the patient, where the money charged is paid out of the patient’s general estate; and

an order under this subsection may provide for excluding or restricting the operation of subsection (1).

(6) A charge under subsection (5) does not confer any right of sale or foreclosure during the lifetime of the patient.

40. (1) For purposes of, investigating matters relating to the capacity of a Medical and patient to manage and administer his or her property and affairs, or the court legal visitors. performing its function under this Part in relation to a patient, the court may appoint (a)

an experienced psychiatrist of not less than 5 years to be a medical visitor; and

(b)

a legal practitioner of not less than seven years standing to be a legal visitor.

(2) A visitor appointed under subsection (1) shall (a)

visit a patient in accordance with the directions of the court; and

(b)

make a report to the court about his or her visit as the court may require.

(3) A visitor may interview a patient in private when the visitor visits the patient.

(4) A medical visitor making a visit under this section may carry out in private a medical examination of the patient, and may require the production of any records relating to the patient for examination.

(5) The Registrar of the High Court may, on the direction of the court, visit any patient and report his or her findings to the court and subsection (3) shall apply for purposes of this subsection.

(6) A report made by a visitor under this section and information contained in the report shall not be disclosed except to the court and any other person authorised by court to receive the information.

31

(7) A person who discloses any report or information in contravention of subsection (6) commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to a term of imprisonment not exceeding two years or, to both.

(8) For purposes of this section, references to a patient include references to a person alleged to be incapable of managing and administering his or her own property and affairs, by reason of a mental disorder.

Appeals.

Rules.

U.K.S.I. No. 1967 No. 223

41. An appeal lies to the Court of Appeal from any decision of the High Court subject to and in accordance with rules relating to civil appeals from the High Court to the Court of Appeal.

42. (1) The Chief Justice, acting under section 17 of the Supreme Court Order, 1967 may make Rules providing generally for the conduct of proceedings before the High Court with respect to persons suffering or alleged to be suffering from a mental disorder (in this section referred to as “proceedings�).

(2) Notwithstanding the generality of subsection (1), Rules made under that section may make provision (a)

for carrying out preliminary or incidental enquiries;

(b)

as to the persons by whom and the manner by which proceedings may be instituted and carried out;

(c)

as to the persons entitled (i)

to be notified of the proceedings; and

(ii)

to attend and take part in the proceedings;

(d)

as to the evidence that may be authorised or required to be given in proceedings in which it is to be given, whether on oath or otherwise and whether orally or in writing;

(e)

for the administration of oaths and taking of affidavits for the purposes of proceedings;

(f)

for the enforcement of orders made and directions given in proceedings;

(g)

for authorising or requiring the attendance and examination of persons suffering from mental disorder, the furnishing of information and the production of documents;

32

(h)

as to the termination of proceedings, whether on the death or recovery of the person to whom the proceedings relate or otherwise and for the exercise of powers exercisable under this Part in relation to the property and affairs of the patient, pending the termination of the proceedings;

(i)

as to the scale of costs, fees and percentages payable in relation to proceedings and as to the manner in which and the funds out of which the costs, fees and percentages are to be paid for charging any percentages on the estate of the person to whom the proceedings relate and for the payment of costs, fees and percentages within the time after the death of the person to whom the proceedings relate or the termination of the proceedings as may be provided by the Rules and for the remission of fees and percentages;

(j)

for the making of orders for the payment of costs to or by persons attending or taking part in proceedings;

(k)

for the giving of security by a receiver and the enforcement and discharge of the security; and

(l)

for the rendering of accounts by receivers or persons, not being receivers, ordered, directed or authorised under this Part to carry out any transactions.

(3) A charge on the estate of a person created under subsection (2)(i) does not cause any interest of that person in any property to fail or determine, or to be prevented from recommencing.

43. A receiver appointed under section 37 shall, during his or her receivership and after his or her discharge, render accounts in accordance with the Rules of court made under section 42.

Accounts.

PART X MISCELLANEOUS 44. Nothing in this Act prevents the conclusion of bilateral agreements, Bilateral agreements. whether orally or in writing, between the Government of the Territory and any other country for the transfer of patients, to which this Act relates, to a health service institution in that other country, if the required treatment is obtainable in that other country and is not obtainable in the Territory.

Forgery, false statements, etc.

33

45. (1) A person who, with intent to deceive forges a medical certificate, report or any other document required or authorised to be made for any of the purposes of this Act commits an offence.

(2) A person who (a)

uses or allows a person to use; or

(b)

makes or has in his or her possession,

a document mentioned under subsection (1) that he or she knows to have been forged or a document so closely resembling that document with intent to deceive commits an offence.

(3) A person who (a)

willfully makes a false entry or statement in any application, certificate, report, record or other document required or authorised to be made for any of the purposes of the Act; or

(b)

with intent to deceive, makes use of any entry or statement knowing it to be false,

commits and offence.

(4) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding three years or, to both.

Ill-treatment of patients.

46.

(1) If it appears to the court on the report of a case manager or on the information of a guardian that any person with a mental disorder and who is the subject of a community treatment order under this Act, is not under proper care and control or is ill-treated or neglected by any relative or other person having the charge of him or her, the court may (a)

send for the person supposed to be mentally disordered and summon the relative or other person as has or ought to have the charge of him or her; and

(b)

after due inquiry make an order for the person to be sent to a Health Facility for treatment and the provisions of section 19 shall, with the necessary modifications, apply.

34

(2) It shall be the duty of every case manager or guardian to report to the court every such case of lack of proper care and control, ill-treatment or neglect as specified in subsection (1) which may come to his or her knowledge.

(3) A case manager or guardian may visit any person supposed to be mentally disordered in the care of any relative or other person having the charge of him for the purpose of ascertaining whether or not the person is under proper care and control or is ill-treated or neglected by any such relative or other person.

(4) A relative or other person having the charge of a person with a mental disorder and who is the subject of a community treatment order under this Act, is legally bound to produce the person for the inspection of the case manager and in the event of his or her refusing to do so, commits an offence and is liable on.summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year or, to both.

47. (1) A person commits an offence, if he or she willfully permits, assists or Permitting connives at the escape or attempted escape of a patient while that patient is being escape of patients. conveyed to or being detained in a Healthcare Facility under this Act and, is liable on summary conviction to a fine not exceeding five thousand dollars or to a term of imprisonment not exceeding one year or, to both.

(2) Where any person knowingly harbours a patient who is absent without leave or is otherwise at large and liable to be retaken under this Act or gives him or her any assistance with intent to prevent, hinder or interfere with his or her being taken into custody or returned to the Healthcare Facility under this Act where he or she ought to be, commits an offence is liable on summary conviction to a fine not exceeding five thousand dollars or to a term of imprisonment not exceeding one year or, to both..

48. (1) A psychiatrist, designated medical officer or designated mental health Special offences practitioner attached to the Healthcare Facility in which the patient was admitted against patients. or, other person employed by or rendering service in any Healthcare Facility, who ill-treats any patient commits an offence.

(2) For the purposes of subsection (1), a psychiatrist, designated medical officer or designated mental health practitioner attached to the Healthcare Facility in which the patient was admitted or, other person employed by or rendering service in any Healthcare Facility, ill-treats a patient if he or she (a)

subjects the patient to physical or sexual abuse;

(b)

wilfully or unreasonably does, or causes the patient to do, any act which endangers or is likely to endanger the safety of the patient or which causes or is likely to cause the patient

35

(c)

(i)

any unnecessary physical pain, suffering or injury;

(ii)

any emotional injury; or

(iii)

any injury to his health; or

wilfully or unreasonably neglects the patient in circumstances that are likely to endanger the safety of the patient or to cause the patient (i) any unnecessary physical pain, suffering or injury; (ii)

any emotional injury; or

(iii)

any injury to his health.

(3) For the purpose of subsection (2)(c), a psychiatrist, designated medical officer or designated mental health practitioner attached to the Healthcare Facility in which the patient was admitted or, other person employed by or rendering service in any Healthcare Facility shall be deemed to have neglected the patient in circumstances likely to cause him or her unnecessary physical pain, suffering or injury or emotional injury or injury to his health if the psychiatrist, designated medical officer or designated mental health practitioner attached to the Healthcare Facility in which the patient was admitted or, other person employed by or rendering service in any Healthcare Facility, wilfully or unreasonably neglects to provide adequate food, clothing, medical aid or care for the patient.

(4) A psychiatrist, designated medical officer or designated mental health practitioner attached to the Healthcare Facility in which the patient was admitted or, other person employed by or rendering service in any Healthcare Facility, may be convicted of an offence under subsection (1) notwithstanding (a)

that any actual suffering or injury on the part of the patient or the likelihood of any suffering or injury on the part of the patient was obviated by the action of another person; or

(b)

the death of the patient.

(5) A person who has sexual intercourse with a patient of a psychiatric institution, while in that institution, commits an offence.

(6) Consent shall not be a defence in any proceedings for an offence under subsection (5) if the accused knew or had reason to suspect that the person in respect of whom the offence was committed was a patient of the psychiatric institution.

36

(7) A person who commits an offence (a)

(b)

under subsection (1) is liable on conviction (i)

in the case where death is caused to the patient, to a fine not exceeding twenty thousand dollars or to imprisonment for a term not exceeding seven years or to both; or

(ii)

in any other case, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding three years or to both; or

under subsection (5) is liable on conviction to a fine not exceeding twenty thousand dollars or to imprisonment for a term not exceeding ten years or to both.

(8) Proceedings may not be instituted under this section except by or with the consent of the Director of Public Prosecutions.

49. A psychiatrist, designated medical officer or designated mental health Prohibition. practitioner attached to the Healthcare Facility in which a patient is admitted who (a)

is the close relative of the patient;

(b) stands in a fiduciary relationship to the patient; shall not treat the patient or sign any order under this Act. 50.

(1) The Minister may make Regulations (a)

providing for the care, treatment, maintenance, conduct, discipline, custody, transfer, leave, release, discharge and supervision of patients during their detention in or after discharge from Psychiatric Facilities;

(b)

prescribing the fees to be paid for certificates under this Act and the instances in which those fees are to be paid to the Crown;

(c)

providing for the handling of all forms of mail including electronic mail to and from patients detained in a hospital;

(d)

prescribing anything that is by this Act authorised or required to be prescribed; and

37

Regulations.

(e)

generally for carrying out the objects and purposes of this Act.

(2) Regulations made under this Act may provide for the imposition of a fine not exceeding three thousand dollars or a term of imprisonment not exceeding three years or, to both.

Transfer of Government officers and employees to the BVI Health Services Authority.

Schedule 4

51.

(1) Subject to subsection (2), every officer or employee of the Government who, immediately before the coming into force of this Act, is holding a post specified in Schedule 4 shall, upon the coming into force of this Act, be deemed to be transferred from the service of the Government to the service of the BVI Health Services Authority upon terms and conditions (including any tax benefits) not less favourable in aggregate than those which were attached to the appointments held by such officers and employees under the Government.

(2) Every officer and employee who is deemed to have been transferred under subsection (1) shall, within six months of the coming into force of this Act, have the option of electing (a)

to continue in the service of the BVI Health Services Authority, in which case such service shall be retrospective from the date of his or her transfer and he or she shall be entitled to such pension, gratuity and other allowances and rights, if any, as he or she would have received had he or she been retired from the service of the Government on the abolition of his or her office on the date of his or her transfer to the BVI Health Services Authority;

(b)

to be transferred to another department of the Government, subject to a suitable vacancy existing, with his or her service with the BVI Health Services Authority counting as service with the Government in respect of his or her pension, gratuity and other allowances and rights, if any; or

(c)

to be deemed to have retired from the service of the Government on the abolition of his or her office (i)

on the date he or she ceases to be in the service of the BVI Health Services Authority, or

(ii)

where his or her service with the BVI Health Services has not been broken, on the date that he or she would have completed thirty-three and a third years’ continuous service with the Government had

38

he or she remained in the service of the Government, whichever is earlier.

(3) Where any officer or employee referred to in this section fails to elect as provided under subsection (2), he or she shall be deemed to have elected under subsection (2)(a) and he or she shall be treated accordingly.

(4) The BVI Health Services Authority shall reimburse the Government with the cost of any pension, gratuity and other allowances and rights, if any, arising from the period which any such officers or employees who elect not to continue with the BVI Health Services did serve with the BVI Health Services Authority.

(5) Nothing in this section shall be deemed to affect the right of the Board (a)

to terminate the employment of any officer or employee transferred to the service of the BVI Health Services Authority, or

(b)

to vary the rate of pay or conditions of service of an officer or employee,

in the manner and to the extent that the Government could have done had he or she continued in the service of the Government.

(6) Subject to subsection (7), where any officer or employee has elected to continue in the service of the BVI Health Services Authority under subsection (2) or has been deemed to so continue under subsection (3), he or she shall not be entitled to be paid any pension, gratuity or other allowance that may have accrued to him whilst in the service of the BVI Health Services, Authority until the time when he or she would have qualified for a pension, gratuity or other allowance under the Pensions Act had he or she continued in the service of the Government.

(7) Subsection (6) shall not be construed as requiring a person to cease to be in the service of the BVI Health Services Authority in order for him to be entitled to be paid any pension, gratuity or other allowance pursuant to that subsection.

(8) Nothing in this section prevents a person who (a)

has elected to continue in the service of the BVI Health Services Authority under subsection (2) or has been deemed to so continue under subsection (3), and

39

(b)

is or may become entitled to be paid any pension, gratuity or other allowance by virtue of this section,

from participating in and benefitting from any scheme or arrangement for the payment of pensions and other benefits established by the BVI Health Services Authority, or from being re-employed by the BVI Health Services Authority on contract while receiving any pension, gratuity or other allowance by virtue of this section.

(9) Before the coming into force of this Act, the Minister may, by Order published in the Gazette, amend Schedule 4 to effect corrections to the Schedule.

Repeal.

Cap. 136 Cap. 191

52.

Subject to section 29 of the Interpretation Act, the Mental Health Ordinance is repealed.

40

SCHEDULE 1 [Section 7(b)(i)] Patient’s Bill of Rights 1. A patient has the right to respectful care given by competent personnel.

2. A patient has the right, upon request, to be given the name of his or her attending physician, the names of all other physicians directly participating in his or her care, and the names and functions of other health care persons having direct contact with the patient.

3. A patient has the right to every consideration of his or her privacy concerning his or her own medical care program. Case discussion, consultation, examination, and treatment are considered confidential and shall be conducted discreetly.

4. A patient has the right to have all records pertaining to his or her medical care treated as confidential except as otherwise provided by law or third party contractual arrangements.

5. A patient has the right to know what facility Rules and Regulations apply to his or her conduct as a patient.

6. The patient has the right to expect emergency procedures to be implemented without unnecessary delay.

7. The patient has the right to good quality care and high professional standards that are continually maintained and reviewed.

8. (1) The patient has the right to full information in laymen's terms, concerning his or her diagnosis, treatment and prognosis, including information about alternative treatments and possible complications.

(2) When it is not possible or medically advisable to give such information to the patient, the information shall be given on his or her behalf to the patient's designee.

9. Except for emergencies, the physician must obtain the necessary informed consent prior to the start of any procedure or treatment, or both.

10. (1) A patient has the right to be advised when a physician is considering the patient as a part of a medical care research program or donor program.

(2) Informed consent must be obtained prior to actual participation in such program and the patient or legally responsible party, may, at any time, refuse to

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continue in any such program to which he or she has previously given informed consent.

11. A patient has the right to refuse any drugs, treatment or procedure offered by the facility, to the extent permitted by law, and a physician shall inform the patient of his or her right to refuse any drugs, treatment or procedures and of the medical consequences of the patient's refusal of any drugs, treatment or procedure.

12. A patient has the right to assistance in obtaining consultation with another physician at the patient's request and expense.

13. A patient has the right to medical and nursing services without discrimination based upon race, colour, religion, sex, sexual preference, national origin or source of payment.

14. A patient who does not speak English or is hearing impaired shall have access, when possible, to a qualified medical interpreter (for foreign language or hearing impairment) at no cost, when necessary and possible.

15. (1) The facility shall provide a patient, or patient designee, upon request, access to all information contained in the patient's medical records.

(2) A patient's access to medical records may be restricted by the patient's attending physician.

(3) If the physician restricts the patient's access to information in the patient's medical record, the physician shall record the reasons on the patient's medical record.

(4) Access shall be restricted only for sound medical reason.

(5) A patient's designee may have access to the information in the patient's medical records even if the attending physician restricts the patient's access to those records.

16. A patient has the right not to be awakened by hospital staff unless it is medically necessary.

17. The patient has the right to be free from needless duplication of medical and nursing procedures.

18. The patient has the right to medical and nursing treatment that avoids unnecessary physical and mental discomfort.

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19. When medically permissible, a patient may be transferred to another facility only after the patient or his or her next of kin or other legally responsible representative has received complete information and an explanation concerning the needs for and alternatives to such a transfer. The facility to which the patient is to be transferred must first have accepted the patient for transfer.

20. The patient has the right to examine and receive a detailed explanation of his or her bill.

21. The patient has a right to full information and counselling on the availability of known financial resources for his or her health care.

22. A patient has the right to expect that the facility will provide a mechanism whereby he or she is informed upon discharge of his or her continuing health care requirements following discharge and the means for meeting them.

23. A patient shall not be denied the right of access to an individual or agency who is authorised to act on his or her behalf to assert or protect the rights set out in this paragraph.

24. A patient, or when appropriate, the patient’s representative has the right to be informed of his or her rights at the earliest possible time in the course of his or her hospitalisation.

25. (1) A patient, and when appropriate, the patient’s representative has the right to have any concerns, complaints and grievances addressed.

(2) Sharing concerns, complaints and grievances will not compromise a patient’s care, treatment or services.

(3) If a patient has a concern, complaint, or grievance, he or she may contact his or her nurse, the nursing supervisor or follow the normal complaints procedures outlined for the Healthcare service.(4) If the patient’s issues are not satisfactorily addressed while the patient remains hospitalised, the investigation will continue. The intent is to provide the patient a letter outlining the findings within seven days.

26. The patient has the right to participate in the development and implementation of his or her plan of care, including his or her inpatient treatment/care plan, outpatient treatment/care plan, discharge care plan, and pain management plan.

27. (1) The patient, or when appropriate, the patient’s representative has the right to make informed decisions regarding his or her care.

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(2) The patient's rights include being informed of his or her health status, being involved in care planning and treatment, and being able to request or refuse treatment.

(3) This right must not be construed as a mechanism to demand the provision of treatment or services deemed medically unnecessary or inappropriate.

(4) Making informed decisions includes the development of their plan of care, medical and surgical interventions (e.g. deciding whether to sign a surgical consent), pain management, patient care issues and discharge planning.

28. The patient has the right to formulate advance directives and to have hospital staff and practitioners who provide care in the hospital comply with these directives.

29. The patient has the right to have a family member or representative of his or her choice and his or her own physician notified promptly of his or her admission to the facility.

30. (1) The patient has the right to personal privacy which includes a right to respect, dignity, and comfort as well as privacy during personal hygiene activities (e.g. toileting, bathing, dressing), during medical/nursing treatments, and when requested as appropriate.

(2) It also includes limiting release or disclosure of private. information such as patient’s presence in facility, location in the facility, or personal information.

31. The patient has the right to receive care in a safe setting which includes environmental safety, infection control, security, protection of emotional health and safety, including respect, dignity, and comfort, as well as physical safety.

32. The patient has the right to be free from all forms of abuse or harassment including neglect, or harassment from staff, other patients, and visitors.

33. The patient has the right to be free from restraints of any form that are not medically necessary or are used as a means of coercion, discipline, convenience, or retaliation by staff.

34. The patient has the right to be free from seclusion and restraints, of any form, imposed as a means of coercion, discipline, convenience, or retaliation by staff.

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Patient Responsibilities 1. Patients, and their families when appropriate, are responsible for providing correct and complete information about present complaints, past illnesses, hospitalisations, medications, and other matters relating to their health.

2. Patients and their families are responsible for reporting unexpected changes in their condition or concerns about their care to the doctor or nurse taking care of them.

3. Patients and their families are responsible for asking questions when they do not understand their care, treatment, and service or what they are expected to do.

4. Patients and their families are responsible for following the care, treatment, and service plans that have been developed by the healthcare team and agreed to by the patient.

5. Patients and their families are responsible for the outcomes if they do not follow the care, treatment, and service plan.

6. Patients and their families are responsible for following the facility’s Rules and Regulations.

7. Patients and their families are responsible for being considerate of the facility’s staff and property, as well as other patients and their property.

8. Patients and their families are responsible to promptly meet any financial obligation agreed to with the hospital.

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SCHEDULE 2 [Section 7(b)(ii)] Principles for the protection of persons with mental illness and the improvement of mental health care Adopted by United Nation General Assembly resolution 46/119 of 17th day of December, 1991 Application These Principles shall be applied without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth.

Definitions In these Principles: "Counsel" means a legal or other qualified representative; "Independent authority" means a competent and independent authority prescribed by domestic law; "Mental health care" includes analysis and diagnosis of a person's mental condition, and treatment, care and rehabilitation for a mental illness or suspected mental illness; "Mental health facility'' means any establishment, or any unit of an establishment, which as its primary function provides mental health care; "Mental health practitioner'' means a medical doctor, clinical psychologist, nurse, social worker or other appropriately trained and qualified person with specific skills relevant to mental health care; "Patient" means a person receiving mental health care and includes all persons who are admitted to a mental health facility; "Personal representative" means a person charged by law with the duty of representing a patient's interests in any specified respect or of exercising specified rights on the patient's behalf, and includes the parent or legal guardian of a minor unless otherwise provided by domestic law; "The review body" means the body established in accordance with Principle 17 to review the involuntary admission or retention of a patient in a mental health facility.

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General limitation clause The exercise of the rights set forth in these Principles may be subject only to such limitations as are prescribed by law and are necessary to protect the health or safety of the person concerned or of others, or otherwise to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

Principle 1 Fundamental freedoms and basic rights 1. All persons have the right to the best available mental health care, which shall be part of the health and social care system.

2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.

3. All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.

4. (1) There shall be no discrimination on the grounds of mental illness.

"Discrimination" means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights.

(2) Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory.

(3) Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.

5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognised in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

6. (1) Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law.

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(2) The person whose capacity is at issue shall be entitled to be represented by a counsel.

(3) If the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have sufficient means to pay for it.

(4) The counsel shall not in the same proceedings represent a mental health facility or its personnel and shall not also represent a member of the family of the person whose capacity is at issue unless the tribunal is satisfied that there is no conflict of interest.

(5) Decisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law.

(6) The person whose capacity is at issue, his or her personal representative, if any, and any other interested person shall have the right to appeal to a higher court against any such decision.

7. Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person's condition, to ensure the protection of his or her interest.

Principle 2 Protection of minors Special care should be given within the purposes of these Principles and within the context of domestic law relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.

Principle 3 Life in the community Every person with a mental illness shall have the right to live and work, as far as possible, in the community.

Principle 4 Determination of mental illness 1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status.

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3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in diagnosing mental illness.

4. A background of past treatment or hospitalisation as a patient shall not of itself justify any present or future determination of mental illness.

5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.

Principle 5 Medical examination No person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorised by domestic law.

Principle 6 Confidentiality The right of confidentiality of information concerning all persons to whom these Principles apply shall be respected.

Principle 7 Role of community and culture 1. Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.

2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever possible, to be treated near his or her home or the home of his or her relatives or friends and shall have the right to return to the community as soon as possible.

3. Every patient shall have the right to treatment suited to his or her cultural background.

Principle 8 Standards of care 1. Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons.

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2. Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.

Principle 9 Treatment 1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.

2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.

3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.

4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

Principle 10 Medication 1. (1) Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others.

(2) Subject to the provisions of paragraph 15 of Principle 11, mental health practitioners shall only administer medication of known or demonstrated efficacy.

2. All medication shall be prescribed by a mental health practitioner authorized by law and shall be recorded in the patient's records.

Principle 11 Consent to treatment 1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 below.

2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

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(a) The diagnostic assessment; (b) The purpose, method, Likely duration and expected benefit of the proposed treatment; (c) Alternative modes of treatment, including those less intrusive; and (d) Possible pain or discomfort, risks and side-effects of the proposed treatment.

3. A patient may request the presence of a person or persons of the patient's choosing during the procedure for granting consent.

4. (1) A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 below.

(2) The consequences of refusing or stopping treatment must be explained to the patient.

5. (1) A patient shall never be invited or induced to waive the right to informed consent.

(2) If the patient should seek to do so, it shall be explained to the patient that the treatment cannot be given without informed consent.

6. Except as provided in paragraphs 7, 8, 12, 13, 14 and 15 below, a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied: (a) the patient is, at the relevant time, held as an involuntary patient; (b) an independent authority, having in its possession all relevant information, including the information specified in paragraph 2 above, is satisfied that, at the relevant time, the patient lacks the capacity to give or withhold informed consent to the proposed plan of treatment or, if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds such consent; and (c) the independent authority is satisfied that the proposed plan of treatment is in the best interest of the patient's health needs.

7. Paragraph 6 above does not apply to a patient with a personal representative empowered by law to consent to treatment for the patient; but, except as provided in paragraphs 12, 13, 14 and 15 below, treatment may be given

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to such a patient without his or her informed consent if the personal representative, having been given the information described in paragraph 2 above, consents on the patient's behalf.

8. (1) Except as provided in paragraphs 12, 13, 14 and 15 below, treatment may also be given to any patient without the patient's informed consent if a qualified mental health practitioner authorised by law determines that it is urgently necessary in order to prevent immediate or imminent harm to the patient or to other persons.

(2) Such treatment shall not be prolonged beyond the period that is strictly necessary for this purpose.

9. Where any treatment is authorised without the patient's informed consent, every effort shall nevertheless be made to inform the patient about the nature of the treatment and any possible alternatives and to involve the patient as far as practicable in the development of the treatment plan.

10. All treatment shall be immediately recorded in the patient's medical records, with an indication of whether involuntary or voluntary.

11. (1) Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others.

(2) It shall not be prolonged beyond the period which is strictly necessary for this purpose.

(3) All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient's medical record.

(4) A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff.

(5) A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.

12. Sterilization shall never be carried out as a treatment for mental illness.

13. A major medical or surgical procedure may be carried out on a person with mental illness only where it is permitted by domestic law, where it is considered that it would best serve the health needs of the patient and where the patient gives informed consent, except that, where the patient is unable to give

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informed consent, the procedure shall be authorized only after independent review.

14. Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient.

15. Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose.

16. In the cases specified in paragraphs 6, 7, 8, 13, 14 and 15 above, the patient or his or her personal representative, or any interested person, shall have the right to appeal to a judicial or other independent authority concerning any treatment given to him or her.

Principle 12 Notice of rights 1. A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with these Principles and under domestic law, which information shall include an explanation of those rights and how to exercise them.

2. If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient's interests and willing to do so.

3. A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility.

Principle 13 Rights and conditions in mental health facilities 1. Every patient in a mental health facility shall, in particular, have the right to full respect for his or her (a) recognition everywhere as a person before the law;

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(b) privacy; (c) freedom of communication, which includes freedom to communicate with other persons in the facility; freedom to send and receive uncensored private communications; freedom to receive, in private, visits from a counsel or personal representative and, at all reasonable times, from other visitors; and freedom of access to postal and telephone services and to newspapers, radio and television; (d) freedom of religion or belief.

2. The environment and living conditions in mental health facilities shall be as close as possible to those of the normal life of persons of similar age and in particular shall include: (a) facilities for recreational and leisure activities; (b) facilities for education; (c) facilities to purchase or receive items for daily living, recreation and communication; (d) facilities, and encouragement to use such facilities, for a patient's engagement in active occupation suited to his or her social and cultural background, and for appropriate vocational rehabilitation measures to promote reintegration in the community (including vocational guidance, vocational training and placement services to enable patients to secure or retain employment in the community).

3. (1) In no circumstances shall a patient be subject to forced labour.

(2) Within the limits compatible with the needs of the patient and with the requirements of institutional administration, a patient shall be able to choose the type of work he or she wishes to perform.

4. (1) The labour of a patient in a mental health facility shall not be exploited.

(2) Every such patient shall have the right to receive the same remuneration for any work which he or she does as would, according to domestic law or custom, be paid for such work to a non-patient.

(3) Every such patient shall, in any event, have the right to receive a fair share of any remuneration which is paid to the mental health facility for his or her work.

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Principle 14 Resources for mental health facilities 1. A mental health facility shall have access to the same level of resources as any other health establishment, and in particular (a) qualified medical and other appropriate professional staff in sufficient numbers and with adequate space to provide each patient with privacy and a programme of appropriate and active therapy; (b) diagnostic and therapeutic equipment for the patient; (c) appropriate professional care; and (d) adequate, regular and comprehensive treatment, including supplies of medication.

2. Every mental health facility shall be inspected by the competent authorities with sufficient frequency to ensure that the conditions, treatment and care of patients comply with these Principles.

Principle 15 Admission principles 1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission.

2. Access to a mental health facility shall be administered in the same way as access to any other facility for any other illness.

3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in Principle 16, apply, and he or she shall be informed of that right.

Principle 16 Involuntary admission 1. (1) A person may (a) be admitted involuntarily to a mental health facility as a patient; or (b) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorised 55

by law for that purpose determines, in accordance with Principle 4, that person has a mental illness and considers (i) that, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or (ii) that, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.

(2) In the case referred to in subparagraph (1)(b), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.

2. (1) Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body.

(2) The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient's personal representative, if any, and, unless the patient objects, to the patient's family.

3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.

Principle 17 Review body 1. (1) The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law.

(2) It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.

2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.

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3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.

4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.

5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.

6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.

7. A patient or his or her personal representative, or any interested person, shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.

Principle 18 Procedural safeguards 1. (1) The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint procedure or appeal.

(2) If the patient does not secure such services, a counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

2. (1) The patient shall also be entitled to the assistance, if necessary, of the services of an interpreter.

(2) Where such services are necessary and the patient does not secure them, they shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

3. The patient and the patient's counsel may request and produce at any hearing an independent mental health report and any other reports and oral, written and other evidence that are relevant and admissible.

4. (1) Copies of the patient's records and any reports and documents to be submitted shall be given to the patient and to the patient's counsel, except in special cases where it is determined that a specific disclosure to the patient would cause serious harm to the patient's health or put at risk the safety of others.

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(2) As domestic law may provide, any document not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel.

(3) When any part of a document is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject to judicial review.

5. The patient and the patient's personal representative and counsel shall be entitled to attend, participate and be heard personally in any hearing.

6. If the patient or the patient's personal representative or counsel requests that a particular person be present at a hearing, that person shall be admitted unless it is determined that the person's presence could cause serious harm to the patient's health or put at risk the safety of others.

7. Any decision whether the hearing or any part of it shall be in public or in private and may be publicly reported shall give full consideration to the patient's own wishes, to the need to respect the privacy of the patient and of other persons and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

8. (1) The decision arising out of the hearing and the reasons for it shall be expressed in writing. Copies shall be given to the patient and his or her personal representative and counsel.

(2) In deciding whether the decision shall be published in whole or in part, full consideration shall be given to the patient's own wishes, to the need to respect his or her privacy and that of other persons, to the public interest in the open administration of justice and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

Principle 19 Access to information 1. (1) A patient, which term in this Principle includes a former patient) shall be entitled to have access to the information concerning the patient in his or her health and personal records maintained by a mental health facility.

(2) This right may be subject to restrictions in order to prevent serious harm to the patient's health and avoid putting at risk the safety of others.

(3) As domestic law may provide, any such information not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel.

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(4) When any of the information is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and it shall be subject to judicial review.

2. Any written comments by the patient or the patient's personal representative or counsel shall, on request, be inserted in the patient's file.

Principle 20 Criminal offenders 1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.

2. (1) All such persons should receive the best available mental health care as provided in Principle 1.

(2) These Principles shall apply to them to the fullest extent possible, with only such limited modifications and exceptions as are necessary in the circumstances.

(3) No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1.

3. Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.

4. Treatment of persons determined to have a mental illness shall in all circumstances be consistent with Principle 11.

Principle 21 Complaints Every patient and former patient shall have the right to make a complaint through procedures as specified by domestic law.

Principle 22 Monitoring and remedies States shall ensure that appropriate mechanisms are in force to promote compliance with these Principles, for the inspection of mental health facilities, for the submission, investigation and resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of a patient.

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Principle 23 Implementation 1. States should implement these Principles through appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically.

2. States shall make these Principles widely known by appropriate and active means.

Principle 24 Scope of principles relating to mental health facilities These Principles apply to all persons who are admitted to a mental health facility.

Principle 25 Saving of existing rights There shall be no restriction upon or derogation from any existing rights of patients, including rights recognised in applicable international or domestic law, on the pretext that these Principles do not recognize such rights or that they recognise them to a lesser extent.

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SCHEDULE 3 [Section 30(2)] MENTAL HEALTH REVIEW BOARD 1. The Board consist of (a) two persons chosen from the legal profession (referred to in this Act as the “legal members”) appointed by the Minister; (b) three persons chosen from the medical profession (referred to in this Act as the “medical members”) appointed by the Minister; and (c) two persons appointed by the Minister and qualified in the fields of health and social services. (d) two members of the public who the Minister considers suitable.

2. A person shall be ineligible to be a member of the Board where that person has suffered from a mental disorder them self and no person shall act as

a member of the Board in any case where, given the identity of the patient, a conflict of interest may arise.

3. Members of the Board shall hold office for a period of three years from the date on which they are appointed, but may resign from office by notice in writing to the Minister.

4. A member of the Board is eligible for re-appointment on the expiration of his or her tenure of appointment.

5. One of the medical members of the Board shall be appointed by the Minister to be the Chairperson of the Board and one of the legal members to be the Deputy Chairperson.

6. Subject to this Schedule, meetings of the Board shall be held at such times and places as the Chairperson appoints and the Board may regulate its own procedure.

7. The Minister may appoint a public officer to act as the Secretary to the Board.

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8. Any correspondence to the Board shall be addressed to the Secretary but all decisions of the Board shall be signed by the Chairperson or Deputy Chairperson, as the case may be.

9. The Board may, for the purposes of any particular case, co-opt any person whose specialised knowledge or expertise would be of assistance to the Board in dealing with the case and a person who is co-opted under this paragraph shall be deemed for all purposes to be a member of the Board in respect of the case for which he or she is coopted.

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SCHEDULE 4 [Section 51] STAFF TRANSFERRED TO THE BVI HEALTH SERVICES AUTHORITY. Sandy Lane Established Employees 1Manager, Drug Rehabilitation Programme 3 Addiction Counselors I/II 1 Assistant Addiction Counselor 1 Clerical Officer I/II/II Non-Established Employees 1 Cook

.

Passed by the House of Assembly this

day of

, 2014.

Speaker.

Clerk of the House of Assembly.

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OBJECTS AND REASONS This Bill seeks to revise the legal regime with respect to the administration of mental health in the Territory.

The Mental Health Ordinance (CAP 191) of the Virgin Islands was enacted in 1985. Since that time, significant advances have been made in the field of psychiatry related to the treatment of patients and the practice of mental health.

There now are new approaches which substantially improved the quality of life of patients, their families and the community as a whole.

In addition, various countries, including the Virgin Islands, have become signatories to international instruments such as the United Nations Human Rights Convention, which includes a section entitled the “Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care�, adopted by UN General Assembly Resolution 46/119 of 17 December 1991. Out of this there are ten basic principles of Mental Health Care Law which should be present in any mental health legislation. These principles are as follows: (a) promotion of mental health and prevention of mental disorders; (b) access to basic mental health care; (c) mental health assessments in accordance with internationally accepted principles; (d) provision of the least restrictive type of mental health care; (e) self-determination; (f) right to be assisted in the exercise of self-determination; (g) availability of a review mechanism; (h) qualified decision maker; (i) respect of the rule of law; and (j) an automatic periodical review mechanism.

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Part II of the Mental Health Ordinance (CAP 191) speaks only to the treatment of the mentally ill and specifically how admission is facilitated in an acute situation.

It does not, (a) speak to the issue of mental health promotion and prevention of mental illnesses; (b) provide for the role of mental health practitioners other than Mental Health Officers and does not address the certification and recertification of these practitioners; (c) speak to rehabilitation of persons with mental disorders thereby making easily available options of less restrictive types of care; (d) provide legislative support for treatment in the community of persons with severe mental disorders; and (e) address the issue of the rights of patients to self-determination and the exercise of this self determination.

Adequate mental health legislation is essential because individuals with mental disorders are a vulnerable section of the population and provision of care and services to this group must take place within a legal framework that does not only focus on placing checks on the patients who suffer mental disorders, and their physicians, but also on the government’s responsibility for providing comprehensive services for the mentally ill. It must balance the provision of care of high quality, improved access to care, the protection of civil rights, the promotion of mental health and the prevention of mental disorders. It must foster a positive approach to mental health, and discourage all forms of stigma and discrimination against individuals and their families who are afflicted and /or affected. This Bill seeks to achieve these objectives The Bill has ten Parts.

Under Part I falls the short title and interpretation clauses (Clauses 1 and 2 respectively) Part II deals with the establishment, functions and duties of the Community Mental Health and Substance Abuse Rehabilitation Unit. The Unit is established under clause 3 and the functions of the Unit are spelt out under clause 4. The functions of the Unit include

(a) set the strategic direction for the provision of mental health services including the development of a strategic plan and the determination of policies;

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(b)

support the establishment and management of programmes and services that promote, protect and maintain good mental health in communities throughout the Territory;

(c)

manage the operations of the Unit and to coordinate the integration of services at the Hospital and other public healthcare facilities to ensure continuous improvement in the quality of the care to patients;

(d)

ensure the participation and involvement of the community in relation to all the services of the Unit, intersectoral collaboration and partnership;

(e)

make modern methods of treatment available to the public so far as sufficient funds are at its disposal to do so.

Clause 5 deals with the duties of the Unit while clause 6 specifies the staff of the Unit to be a manager who shall be the head of the Unit and other mental health practitioners, designated by the Minister.

Part III deals with what is expected from each facility and the staff of such facilities in providing mental health care, especially to ensure the protection of its patients in accordance with the “Patient’s Bill of Rights” in the Schedule 1, and the standard and principles enshrined in the “Principles for the protection of persons with Mental Illnesses and for the improvement of Mental Health Care”, in Schedule 2.

Part IV deals with applications, admissions and enforcement. Under this Part fall clauses 9 to 22. Clause 9 deals with notification of mental disorder. Under this clause, a person who by reason of another person’s general behaviour reasonably suspects that other person to be suffering from a mental disorder, may so notify a police officer.

Clause 10 deals with the powers of a mental health practitioner. This clause empowers a mental health practitioner to remove from the street or some other public place, a person who appears to the mental health practitioner to be suffering from mental disorder and living on the street or at some other public place. A removal under this section may be made with or without the assistance of a police officer and, the person so removed shall be conveyed to a Healthcare Facility to be admitted, detained and provided with mental health care. The admission and detention of a person under this section shall be treated as an admission and detention under clause 16.

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Clause 11 deals with the types of admissions and the circumstances under which persons may be admitted to a facility.

Clause 12 requires the mental health practitioner concerned with conveying a person suspected of suffering from mental disorder to a Healthcare Facility, to inform the person’s relatives of the events leading to the person’s conveyance and, of the person’s admission in the Healthcare Facility.

Clause 13exonerates a mental health practitioner or police officer from liability for anything done under the Act. Clause 14 deals with voluntary admissions to Healthcare Facilities. A voluntary admission can however be converted into a medically recommended one if an admitted person is found on re-evaluation not to be fit for discharge from the facility be he or she is insistent on leaving.

Clause 15 deals with the conversion of a voluntary admission to a medically recommended admission and the circumstances under which that would happen and clause 16 deals with medically recommended admissions.

Clause 17 requires every psychiatrist, designated medical officer or designated mental health practitioner to obtain informed consent from his or her patient before commencing treatment of the patient. Informed consent of a patient shall be obtained in a language the patient understands and the patient shall be informed of every medical procedure to be undertaken on him or her and any likely effects of the procedure on the patient.

Clause 18 requires a person admitted to a Healthcare Facility under the Act to be re-assessed on the twenty-first day after admission and on every twenty-first day following the immediate past assessment. A medical certificate is to be issued by the examining psychiatrist, designated medical officer or designated mental health practitioner after each assessment of the patient.

Clause 19 deals with court ordered admissions. A court that suspects that a person charged before it is of unsound mind and might be in need of mental health care, may make an order that the person charged be remanded at a Healthcare Facility as a patient for observation pending adjudication of the case, and if necessary, for treatment. The court shall on ordering an admission under this clause, require from the psychiatrist, designated medical officer or designated mental health practitioner attached to the Healthcare Facility to submit to it, a medical report as to the soundness of the person’s mind. The status of a person remanded under this clause cannot be changed to that of a voluntary patient unless the court that remanded the person so permits.

Clause 20 deals with a detention at Her Majesty’s pleasure and the Governor may in that circumstance give an order for the safe custody of that person during his or

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her detention. The Governor may however, by warrant under his or her hand, discharge a person detained under this clause, conditionally or absolutely.

Clause 21 deals with the transfer of a person admitted in a Healthcare Facility from one facility to the other.

Clause 22 deals with the effect of an expiration of a sentence on a person admitted to a Healthcare Facility as a court ordered patient.

Part V deals with the control of persons suffering from mental disorder. Under this Part falls clause 23. This clause specifies the circumstances under which restraint and seclusion can be used to control persons being conveyed to Healthcare Facilities and patients admitted to Healthcare Facilities. Restraint and seclusion can only be used on a patient if it is ordered by psychiatrist or medical practitioner after an assessment of the patient. An assessment of the patient is also required after every hour of the order. Also restraint or seclusion of a patient can not be used as a form of punishment or for the convenience of the staff of the Healthcare Facility. An offence is committed for contravening subclauses (2), (3) and (7) of this clause.

Part VI deals with discharge. Under this Part are provisions on conditional discharge of patients (Clause 24), the handling of patients who leave a Healthcare Facility without the permission of the facility (Clause 25), the discharge of voluntary patients (Clause 26) and evidence of discharge of patient (Clause 27).

Part VII deals with community treatment orders. Clause 28 specifies when a community treatment order may be ordered whilst clause 29 deals with variation of the terms of a community treatment order. A patient who is aggrieved by the imposition of a community treatment order on him or her under clause 28 may, by himself or herself or by a personal representative, lodge a complaint to the Board established under the Bill for a review of the order.

Part VIII deals with the establishment and constitution of the Mental Health Review Board. Clause 30 establishes the Mental Health Review Board while clause 31 specifies that appeals from a decision of the Board lie to the High Court.

Part IX deals with managing the property and affairs of patients (Clauses 32 to 41) Clause 32 makes provision for the management and administration of the property and affairs of patients while clause 33 deals with the general functions of the court in that regard. Clause 34 makes provision for special powers of the court as relates to the management of the property of a patient. Clause 34 makes supplementary provisions as to Wills executed under clause 34.

Clause 36 provides for the power of the court in cases of emergency while clause 37 empowers the court to appoint a receiver to manage and administer the property and affairs of a patient.

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Clause 38 makes provision for vesting of stock in a curator appointed outside the Territory for the purpose of managing and administering the property of a patient.

Clause 39 makes provision for the preservation of any interest in a patient’s property. Clause 40 empowers the court to appoint experienced psychiatrists and lawyers for purposes of investigating matters relating to the capacity of a patient to manage and administer his or her own property and affairs, or for the performance of the courts functions under this Part. These persons are either designated as legal visitors or medical visitors. A visitor appointed shall visit a patient in accordance with the directions of the court and make a report to the court about his or her visit as require by the court.

Clause 41 is on appeals. An appeal lies to the Court of Appeal from any decision of the High Court subject to and in accordance with rules of court relating to civil appeals from the High Court to the Court of Appeal.

Clause 42 empowers the Chief Justice, acting under section 17 of the Supreme Court Order, 1967, to make Rules of court providing generally for the conduct of proceedings before the High Court with respect to persons suffering or alleged to be suffering from mental disorder. Specific matters for which Rules may be made are specified under subclause (2) of this clause.

Clause 43 requires a receiver appointed under clause 37, after his or her discharge, to render accounts for the period of his or her receivership in accordance with the Rules of court made under clause 42 and.

Part X is on miscellaneous provisions. Under this Part falls clause 44 to 52.

Clause 45 provides for the consequences of forgery and false statements made with respect to medical certificates, reports or other documents required or authorised to be made for any of the purposes of this Act. Clause 46 deals with the ill-treatment of patients while clause 47 deals with permitting the escape of patients. Clause 48 is on special offences against patients while clause 50 is on Regulations. Clause 51 deals with the transfer of certain staff of Sandy Lane.

Finally, Clause 52 repeals the Mental Health Ordinance (Cap. 191).

Minister responsible for Health and Social Development.

Date:

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