Sentencing and Mental Health Acts (Amendment) Act 2005

i Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—SENTENCING ACT 1991 3 3. General amendments regarding hospital orders and hospital security orders 3 4. Assessment orders and diagnosis, assessment and treatment orders 4 5. New section 93 substituted and section 93A inserted 7 93. Restricted involuntary treatment orders 7 93A. Hospital security orders 9 6. New section 131 inserted 11 131. Transitional provision—Sentencing and Mental Health Acts (Amendment) Act 2005 11 PART 3—MENTAL HEALTH ACT 1986 13 7. Definitions and references to hospital orders 13 8. Taking a person to an approved mental health service 14 9. Discharge of involuntary patients 14 10. New section 15A substituted 15 15A. Restricted community treatment orders 15 11. Restricted community treatment orders 17 12. Transfer of mentally ill prisoners 19 13. New sections 16A and 16B inserted 21 16A. Transfer of prisoners subject to hospital security orders 21 16B. Treatment for security patients 22 14. Treatment plans 22 15. Appeals and reviews 23 -- 1 of 43 -- Section Page ii 16. New section 36B substituted and section 36BA inserted 23 36B. Power of Board on appeal or review of restricted involuntary treatment orders—patients who are detained 23 36BA. Power of Board on appeal or review of assessment orders or diagnosis, assessment and treatment orders 25 17. Power of Board on appeal or review for patients on community treatment orders 25 18. New section 36D substituted 26 36D. Power of Board on appeal or review for patients on restricted community treatment orders 26 19. New section 37 substituted and sections 37A, 37B and 37C inserted 28 37. Discharge of involuntary patients—involuntary treatment orders and community treatment orders 28 37A. Discharge of involuntary patients—restricted involuntary treatment orders and restricted community treatment orders 29 37B. Discharge of involuntary patients—assessment orders and diagnosis, assessment and treatment orders 30 37C. Discharge of involuntary patients—hospital transfer orders 30 20. Consequential amendment of section 38 31 21. New section 44 substituted 31 44. Board may order discharge 31 22. Discharge by chief psychiatrist 31 23. New section 46 substituted 32 46. Notification and discharge 32 24. Automatic discharge as a security patient 33 25. New section 150 inserted 33 150. Transitional provision—Sentencing and Mental Health Acts (Amendment) Act 2005 33 PART 4—CORRECTIONS ACT 1986 35 26. Parole orders for persons subject to hospital security orders 35 PART 5—CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 36 27. Leave of absence 36 -- 2 of 43 -- Section Page iii PART 6—CONSEQUENTIAL AMENDMENT OF OTHER ACTS 38 28. Magistrates' Court Act 1989 38 29. Juries Act 2000 38 30. Sex Offenders Registration Act 2004 38 31. Serious Sex Offenders Monitoring Act 2005 39 ═══════════════ ENDNOTES 40 -- 3 of 43 -- 1 Sentencing and Mental Health Acts (Amendment) Act 2005 † [Assented to 11 October 2005] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is— (a) to amend the Sentencing Act 1991 with respect to orders that may be made for mentally-ill offenders; Victoria No. 69 of 2005 -- 4 of 43 -- Part 1—Preliminary Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 2 (b) to amend the Mental Health Act 1986 with respect to involuntary patients and security patients; (c) to amend the Corrections Act 1986 to allow parole orders to be made for persons in detention under hospital security orders; (d) to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to allow certain forensic patients and forensic residents to apply for leave; (e) to make consequential amendments to other Acts. 2. Commencement (1) This section and sections 1 and 8 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision of this Act does not come into operation before 1 October 2006, it comes into operation on that day. __________________ s. 2 -- 5 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 3 PART 2—SENTENCING ACT 1991 3. General amendments regarding hospital orders and hospital security orders (1) In the Sentencing Act 1991— (a) insert the following definitions in section 3(1)— ' "hospital security order" means— (a) an order made under section 93A; or (b) an order made under section 16A of the Mental Health Act 1986; "restricted involuntary treatment order" means an order made under section 93;'; (b) in section 7(1)(aab), for "admitted to and detained in" substitute "detained and treated in"; (c) insert the following heading to section 18E— "Hospital security orders". (2) For section 18E(2) of the Sentencing Act 1991 substitute— '(2) Section 93A applies if a person is found guilty of a serious offence and a court imposes an indefinite sentence in the same way it applies on any other finding of guilt but as if— (a) section 93A(4) provided that the duration of the hospital security order was for an indefinite period; See: Act No. 49/1991. Reprint No. 8 as at 1 July 2005 and amending Act Nos 53/2003, 18/2005 and 34/2005. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 6 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 4 (b) section 93A(6) did not require the fixing of a non-parole period but instead required the court to specify a nominal sentence as if the hospital security order were an indefinite sentence; (c) in section 93A(7), the words "before the end of the period specified in a hospital security order" were omitted; (d) section 93A(7) referred to— (i) an indefinite term instead of the unexpired portion of the hospital security order; (ii) release under a re-integration program instead of release on parole.'. (3) In the Sentencing Act 1991— (a) in section 18E(3), for "section 93(1)(e)" substitute "section 93A"; (b) for the heading to Part 5 substitute— "PART 5—MENTALLY ILL OFFENDERS". 4. Assessment orders and diagnosis, assessment and treatment orders (1) In section 90 of the Sentencing Act 1991— (a) for paragraphs (b) and (c) substitute— "(b) the court is of the opinion that— (i) the person appears to be mentally ill; and (ii) the person's mental illness may require treatment and that treatment may be obtained by the s. 4 -- 7 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 5 person being detained in an approved mental health service; and (iii) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and (c) the court has received advice in writing from the authorised psychiatrist of the approved mental health service in which the person is proposed to be detained stating that there are facilities or services available at that service for the assessment of the person's suitability for a restricted involuntary treatment order or a hospital security order—"; (b) for "the person is admitted to and detained" substitute "the person is detained"; (c) for "an order under section 93" (where last occurring) substitute "a restricted involuntary treatment order or a hospital security order". (2) At the end of section 90 of the Sentencing Act 1991 insert— "(2) An assessment order is sufficient authority for the detention of the person who is subject to the order in an approved mental health service.". s. 4 -- 8 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 6 (3) In section 91 of the Sentencing Act 1991— (a) for paragraphs (b) and (c) substitute— "(b) the court is satisfied by the production of a certificate in the prescribed form of a psychiatrist and any other evidence that it may require that— (i) the person appears to be mentally ill; and (ii) the person's mental illness requires treatment and that treatment can be obtained by the person being subject to an order under this section; and (iii) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and (c) the court has received a report in the prescribed form from the authorised psychiatrist of the approved mental health service in which the person is proposed to be detained— (i) recommending the making of the order; and (ii) stating that there are facilities or services available at that service for the diagnosis, assessment and treatment of the person—"; (b) for "the person is admitted to and detained" substitute "the person is detained". s. 4 -- 9 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 7 (4) At the end of section 91 of the Sentencing Act 1991 insert— "(2) A diagnosis, assessment and treatment order is sufficient authority for the detention of the person who is subject to the order in an approved mental health service.". (5) In section 92(a) of the Sentencing Act 1991, for "an order under section 93" substitute "a restricted involuntary treatment order or a hospital security order". 5. New section 93 substituted and section 93A inserted For section 93 of the Sentencing Act 1991 substitute— "93. Restricted involuntary treatment orders (1) Instead of passing sentence on a person found guilty of an offence (other than an offence that is a serious offence for the purposes of Subdivision (1A) of Division 2 of Part 3), a court may make a restricted involuntary treatment order for the person if— (a) the court is satisfied, by the production of a certificate in the prescribed form of a psychiatrist and any other evidence that it may require, that— (i) the person appears to be mentally ill; and (ii) the person's mental illness requires treatment and that treatment can be obtained by the person being subject to a restricted involuntary treatment order; and s. 5 -- 10 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 8 (iii) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and (b) the court has received a report in the prescribed form from the authorised psychiatrist of the approved mental health service at which the person is proposed to be treated— (i) recommending the making of the order; and (ii) stating that there are facilities or services available at that service for the treatment of the person. (2) In determining whether or not to make a restricted involuntary treatment order for a person, the court must consider the person's current mental condition, his or her medical, psychiatric and forensic history and his or her social circumstances. (3) A restricted involuntary treatment order must specify the duration of the order, which must not exceed 2 years. s. 5 -- 11 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 9 (4) A restricted involuntary treatment order is sufficient authority for the detention of the person who is subject to the order in an approved mental health service. Note 1: Under section 15A of the Mental Health Act 1986, a restricted community treatment order may be made at any time for a person who is subject to a restricted involuntary treatment order. Note 2: A person subject to a restricted involuntary treatment order or a restricted community treatment order may be discharged under the Mental Health Act 1986 from the order by the Mental Health Review Board or the chief psychiatrist. 93A. Hospital security orders (1) A court may make a hospital security order for a person who is found guilty of an offence, by way of sentence, if— (a) the court is satisfied, by the production of a certificate in the prescribed form of a psychiatrist and any other evidence that it may require, that— (i) the person appears to be mentally ill; and (ii) the person's mental illness requires treatment and that treatment can be obtained by the person being subject to a hospital security order; and (iii) because of the person's mental illness, the detention and treatment of the person in an approved mental health service is necessary for his or her health or safety (whether to prevent a deterioration in the person's s. 5 -- 12 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 10 physical or mental condition or otherwise) or for the protection of members of the public; and (b) the court has received a report in the prescribed form from the authorised psychiatrist of the approved mental health service in which the person is proposed to be detained and treated— (i) recommending the making of the order; and (ii) stating that there are facilities or services available in that service for the treatment of the person. (2) A court must not make a hospital security order unless, but for the mental illness of the person, the court would have sentenced the person to a term of imprisonment. (3) In determining whether or not to make a hospital security order for a person, the court must consider the person's current mental condition, his or her medical, psychiatric and forensic history and his or her social circumstances. (4) A hospital security order must specify the duration of the order, which must not exceed the period of imprisonment to which the person would have been sentenced had the order not been made. Note: See section 18E, which provides for indefinite hospital security orders. (5) A hospital security order is sufficient authority for the detention of the person who is subject to the order in an approved mental health service. s. 5 -- 13 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 11 (6) A court, when making a hospital security order, must fix a non-parole period in accordance with section 11 as if the order were a term of imprisonment. (7) If at any time before the end of the period specified in a hospital security order an order is made under section 44 or 45 of the Mental Health Act 1986 that the person be discharged as a security patient, the hospital security order has effect as a sentence of imprisonment for the unexpired portion of it and that unexpired portion must be served in a prison unless the person is released on parole. Note: Under section 16A of the Mental Health Act 1986, a person who is serving a sentence in a prison under sub-section (7) may be transferred to an approved mental health service under his or her hospital security order.". 6. New section 131 inserted After section 130 of the Sentencing Act 1991 insert— '131. Transitional provision—Sentencing and Mental Health Acts (Amendment) Act 2005 (1) This Act, as in force immediately before the commencement day, continues to apply on and after that day to a person who, immediately before that day, was the subject of a hospital order made under section 93(1)(d) as in force before that day. (2) Sub-section (1) ceases to have effect 2 years after the commencement day and consequently the person ceases to be an involuntary patient at that time, unless he or she has been discharged from the hospital order earlier. s. 6 -- 14 of 43 -- Part 2—Sentencing Act 1991 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 12 (3) A hospital security order in force under section 93(1)(e) immediately before the commencement day is taken, on and after that day, to be a hospital security order made under section 93A for the remainder of its duration. (4) In this section— "commencement day" means the day on which section 6 of the Sentencing and Mental Health Acts (Amendment) Act 2005 comes into operation.'. __________________ s. 6 -- 15 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 13 PART 3—MENTAL HEALTH ACT 1986 7. Definitions and references to hospital orders (1) In section 3(1) of the Mental Health Act 1986— (a) insert the following definition— ' "restricted involuntary treatment order" means an order made under section 93 of the Sentencing Act 1991;'; (b) the definition of "hospital order" is repealed; (c) for the definition of "hospital security order" substitute— ' "hospital security order" means— (a) an order made under section 93A of the Sentencing Act 1991; or (b) an order made under section 16A of this Act;'; (d) in the definition of "involuntary patient", in paragraph (b), for "hospital order" substitute "restricted involuntary treatment order"; (e) for the definition of "security patient" substitute— ' "security patient" means— (a) a person detained in an approved mental health service under a hospital security order or a restricted hospital transfer order; or See: Act No. 59/1986. Reprint No. 8 as at 6 December 2004 and amending Act Nos 108/2004, 18/2005 and 42/2005. LawToday: www.dms. dpc.vic. gov.au s. 7 -- 16 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 14 (b) a person detained in an approved mental health service while serving a sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth— including a person who is on leave of absence or special leave of absence or is absent without leave;'. (2) For section 3A(2)(d) of the Mental Health Act 1986 substitute— "(d) section 16B (treatment for security patients);". (3) In sections 14(6) (including in the note at the foot of that section) and 14E(4) of the Mental Health Act 1986, for "hospital order" (wherever occurring) substitute "restricted involuntary treatment order". 8. Taking a person to an approved mental health service After section 9B(1)(c) of the Mental Health Act 1986 insert— "(ca) section 12AA(7); or". 9. Discharge of involuntary patients In section 15(1) of the Mental Health Act 1986, for "36B(2) or 37(4)" substitute "36BA(2) or 37B". s. 8 -- 17 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 15 10. New section 15A substituted For section 15A of the Mental Health Act 1986 substitute— "15A. Restricted community treatment orders (1) At any time, an authorised psychiatrist or the chief psychiatrist may make a restricted community treatment order for a person who is subject to a restricted involuntary treatment order if the authorised psychiatrist or the chief psychiatrist (as the case requires) is satisfied that— (a) the criteria in section 93(1)(a) of the Sentencing Act 1991 apply to the person; and (b) the treatment required for the person can be obtained through the making of a restricted community treatment order. Note: The criteria in section 93(1)(a) of the Sentencing Act 1991 are— • the person appears to be mentally ill; and • the person's mental illness requires treatment and that treatment can be obtained by the person being subject to a restricted involuntary treatment order; and • because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public. (2) A restricted community treatment order is an order requiring the person to obtain treatment for their mental illness while not detained in an approved mental health service. s. 10 -- 18 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 16 (3) A restricted community treatment order for a person remains in force until the first of the following occurs— (a) the order is revoked; or (b) the person is discharged from the order; or (c) the person is discharged from their restricted involuntary treatment order; or (d) the person's restricted involuntary treatment order expires. Note: See sections 36D(8) and 37A(4) for the effect of the discharge from a restricted community treatment order on the person's restricted involuntary treatment order. (4) A restricted community treatment order must specify any conditions that the authorised psychiatrist or chief psychiatrist making the order considers appropriate. (5) The authorised psychiatrist or chief psychiatrist who makes a restricted community treatment order for a person must— (a) inform the person that the order has been made; and (b) give the person a copy of the order; and (c) inform the person of the grounds for making the order. (6) If a restricted community treatment order is made by an authorised psychiatrist, he or she must notify the chief psychiatrist in writing as soon as practicable.". s. 10 -- 19 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 17 11. Restricted community treatment orders (1) In the Mental Health Act 1986— (a) in section 15AB(2)(a) and (3)(a), for "section 15A(1)" substitute "section 93(1)(a) of the Sentencing Act 1991"; (b) section 15B is repealed; (c) in section 15C(1), before "chief psychiatrist" insert "authorised psychiatrist or the"; (d) in section 15C(2)— (i) for "chief psychiatrist does so, the chief psychiatrist" substitute "authorised psychiatrist or the chief psychiatrist does so, the authorised psychiatrist or the chief psychiatrist (as the case requires)"; (ii) in paragraph (c), for "chief psychiatrist" substitute "authorised psychiatrist or the chief psychiatrist (as the case requires)". (2) For section 15D(1) of the Mental Health Act 1986 substitute— "(1) The authorised psychiatrist or the chief psychiatrist may revoke a restricted community treatment order if satisfied on reasonable grounds that— (a) the criteria in section 93(1)(a) of the Sentencing Act 1991 still apply to the person subject to the order; and (b) the treatment required for the person cannot be obtained under the order. s. 11 -- 20 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 18 (1A) The authorised psychiatrist or the chief psychiatrist may also revoke a restricted community treatment order if— (a) the authorised psychiatrist or the chief psychiatrist (as the case requires) is satisfied on reasonable grounds that the person subject to the order has not complied with the order or the person's treatment plan; and (b) reasonable steps have been taken, without success, to obtain compliance with the order or plan; and (c) the authorised psychiatrist or the chief psychiatrist (as the case requires) is satisfied on reasonable grounds that there is a significant risk of deterioration in the person's mental or physical condition because of the non- compliance.". (3) In the Mental Health Act 1986— (a) in section 15D(2)— (i) before "chief psychiatrist" (where first occurring) insert "authorised psychiatrist or the"; (ii) in paragraph (a), for "chief psychiatrist" substitute "authorised psychiatrist or the chief psychiatrist (as the case requires)"; (iii) in paragraph (b), for "hospital order" substitute "restricted involuntary treatment order"; (b) in section 15E(1), for "hospital order" substitute "restricted involuntary treatment order"; (c) section 15E(2) is repealed. s. 11 -- 21 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 19 (4) After section 15E(3) of the Mental Health Act 1986 insert— "(4) A person is discharged from his or her restricted community treatment order, if any, (but not his or her restricted involuntary treatment order) on the making of a hospital transfer order or restricted hospital transfer order for the person.". 12. Transfer of mentally ill prisoners (1) For section 16(1A) of the Mental Health Act 1986 substitute— "(1A) Sub-section (1) does not apply to a person who is— (a) detained in a prison under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (whether on remand or under a supervision order made under that Act); or (b) serving a sentence in a prison under section 93A(7) of the Sentencing Act 1991.". (2) For section 16(2)(a) and (b) of the Mental Health Act 1986 substitute— "(a) the Secretary has received a certificate by a psychiatrist and is satisfied that— (i) the person appears to be mentally ill; and (ii) the person's mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an order under this section; and s. 12 -- 22 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 20 (iii) because of the person's mental illness, the detention and treatment of the person in an approved mental health service is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and (b) the Secretary has received a report from the authorised psychiatrist of the approved mental health service to which it is proposed to transfer the person— (i) recommending that the transfer be made; and (ii) stating that there are facilities or services available in that service for the treatment of the person.". (3) For section 16(5) of the Mental Health Act 1986 substitute— "(5) A hospital transfer order or restricted hospital transfer order is sufficient authority for the detention of the person who is subject to the order in an approved mental health service.". (4) Section 16(6) of the Mental Health Act 1986 is repealed. s. 12 -- 23 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 21 13. New sections 16A and 16B inserted After section 16 of the Mental Health Act 1986 insert— "16A. Transfer of prisoners subject to hospital security orders (1) The Secretary to the Department of Justice may by an order under this section transfer to an approved mental health service a person who is serving a sentence in a prison under section 93A(7) of the Sentencing Act 1991 if— (a) the Secretary is satisfied, by the production of a certificate of a psychiatrist, that— (i) the person appears to be mentally ill; and (ii) the person's mental illness requires treatment and that treatment can be obtained by the person being subject to an order under this section; and (iii) because of the person's mental illness, the detention and treatment of the person in an approved mental health service is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and (b) the Secretary has received a report from the authorised psychiatrist of the approved mental health service to which it is proposed to transfer the person— s. 13 -- 24 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 22 (i) recommending that the transfer be made; and (ii) stating that there are facilities or services available in that service for the treatment of the person. (2) An order under this section has effect as a hospital security order under section 93A of the Sentencing Act 1991 for the unexpired portion of the sentence of imprisonment. Note: Section 93A(5) of the Sentencing Act 1991 provides that a hospital security order is sufficient authority for the detention of the person who is subject to the order in an approved mental health service. 16B. Treatment for security patients (1) A security patient is to be given treatment for his or her mental illness. (2) If a security patient refuses to consent to necessary treatment or is not capable of consenting to treatment for his or her mental illness consent in writing may be given by the authorised psychiatrist. Note: In considering whether a person has refused or is unable to consent to treatment, see section 3A.". 14. Treatment plans For section 19A(4)(g) of the Mental Health Act 1986 substitute— "(g) the intervals at which the supervising medical practitioner must submit a written report concerning the patient's treatment to the monitoring psychiatrist.". s. 14 -- 25 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 23 15. Appeals and reviews (1) After section 22(2) of the Mental Health Act 1986 insert— "(3) In the case of a review or an appeal of a restricted involuntary treatment order or restricted community treatment order, the Board must, in addition to the matters in sub- section (2), consider the patient's forensic history.". (2) In the Mental Health Act 1986— (a) in sections 29(1)(a)(i), 30(1)(a) and 30(3)(a), for "hospital order" substitute "restricted involuntary treatment order"; (b) in section 30(4), omit "or restricted community treatment order". (3) For section 30(5) of the Mental Health Act 1986 substitute— "(5) If a restricted community treatment order has been in force for at least 12 months, the Board must conduct a review of the order within 8 weeks after the end of that 12 month period.". 16. New section 36B substituted and section 36BA inserted For section 36B of the Mental Health Act 1986 substitute— "36B. Power of Board on appeal or review of restricted involuntary treatment orders— patients who are detained (1) This section applies on an appeal or review for a patient who is detained in an approved mental health service under a restricted involuntary treatment order. s. 15 -- 26 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 24 (2) If the Board considers that the criteria in section 93(1)(a) of the Sentencing Act 1991 do not apply to the patient, the Board must order that the patient be discharged from the restricted involuntary treatment order. (3) If the Board is satisfied that the criteria in section 93(1)(a) of the Sentencing Act 1991 apply to the patient, the Board must confirm the restricted involuntary treatment order. (4) If the Board confirms the restricted involuntary treatment order, the Board may order the authorised psychiatrist to make a restricted community treatment order for the patient within a reasonable period specified by the Board, if the Board considers that the treatment required for the person can be obtained through the making of a restricted community treatment order. (5) The authorised psychiatrist may apply to the Board, at any time during the period specified under sub-section (4), for the Board to reconsider an order made under that sub- section. (6) Sections 31 to 35 and this section apply to an application under sub-section (5) as if it were a review. Note: The Board must take various factors into consideration in deciding what to do on the appeal or review, including the patient's social circumstances—see section 22(2) and (3). s. 16 -- 27 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 25 36BA. Power of Board on appeal or review of assessment orders or diagnosis, assessment and treatment orders (1) This section applies on an appeal or review for a patient who is detained in an approved mental health service under an assessment order or a diagnosis, assessment and treatment order. (2) If the Board considers that the continued detention of the patient as an involuntary patient is unnecessary, the Board must order that the patient be discharged from the order. (3) If the Board considers that the continued detention of the patient as an involuntary patient is necessary, the Board must confirm the order. (4) The Board must have regard to the criteria in section 90(1)(b) or 91(1)(b) of the Sentencing Act 1991 (as the case requires) in making a decision on the appeal or review.". 17. Power of Board on appeal or review for patients on community treatment orders (1) For section 36C(6)(b) of the Mental Health Act 1986 substitute— "(b) give the person written details of the variation; and". (2) After section 36C(6) of the Mental Health Act 1986 insert— "(7) If the Board varies a community treatment order, the authorised psychiatrist must give the person subject to the order a copy of the order as varied within a reasonable period.". s. 17 -- 28 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 26 18. New section 36D substituted For section 36D of the Mental Health Act 1986 substitute— "36D. Power of Board on appeal or review for patients on restricted community treatment orders (1) This section applies on an appeal or review for a patient who is subject to a restricted community treatment order. (2) If the Board considers that the criteria in section 93(1)(a) of the Sentencing Act 1991 do not apply to the patient, the Board must order that the patient be discharged from the restricted community treatment order. (3) If the Board is satisfied that the criteria in section 93(1)(a) of the Sentencing Act 1991 apply to the patient, the Board may— (a) confirm or vary the restricted community treatment order; or (b) revoke the restricted community treatment order if satisfied on reasonable grounds that the treatment required for the patient cannot be obtained under the order. (4) The Board may also revoke a restricted community treatment order if— (a) the Board is satisfied on reasonable grounds that the patient has not complied with the order or the patient's treatment plan; and (b) reasonable steps have been taken, without success, to obtain compliance with the order or plan; and s. 18 -- 29 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 27 (c) the Board is satisfied on reasonable grounds that there is a significant risk of deterioration in the patient's mental or physical condition because of the non-compliance. Note: The Board must take various factors into consideration in deciding what to do on the appeal or review, including the patient's social circumstances—see section 22(2) and (3). (5) If the Board revokes a restricted community treatment order— (a) the Board must make reasonable efforts to inform the patient that the order has been revoked and that the patient must go to an approved mental health service; and (b) the patient remains an involuntary patient under his or her restricted involuntary treatment order and is taken to be absent without leave from an approved mental health service. Note: Section 43 provides for the apprehension of involuntary patients absent without leave. (6) If the Board varies a restricted community treatment order, the Board must— (a) inform the person that the order has been varied; and (b) give the person written details of the variation; and (c) inform the person of the grounds on which the Board decided to vary the order. (7) If the Board varies a restricted community treatment order, the authorised psychiatrist must give the person subject to the order a s. 18 -- 30 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 28 copy of the order as varied within a reasonable period. (8) On the discharge of a patient from a restricted community treatment order under sub-section (2), the patient is taken to be discharged from his or her restricted involuntary treatment order and, consequently, he or she ceases to be an involuntary patient.". 19. New section 37 substituted and sections 37A, 37B and 37C inserted For section 37 of the Mental Health Act 1986 substitute— "37. Discharge of involuntary patients— involuntary treatment orders and community treatment orders (1) If the authorised psychiatrist considers that the criteria in section 8(1) do not apply to a person who is detained in the approved mental health service as an involuntary patient under an involuntary treatment order, the authorised psychiatrist must discharge the person from the involuntary treatment order. (2) If the authorised psychiatrist considers that the criteria in section 8(1) do not apply to a person who is receiving treatment from the approved mental health service under a community treatment order, the authorised psychiatrist must discharge the person from the community treatment order. Note: See section 14(5) for the effect of the discharge from a community treatment order on the person's involuntary treatment order. s. 19 -- 31 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 29 (3) For the avoidance of doubt, a person who is discharged from an involuntary treatment order under sub-section (1) remains an involuntary patient if the authorised psychiatrist makes an application under section 12A for approval of the continued detention and treatment of the person. 37A. Discharge of involuntary patients— restricted involuntary treatment orders and restricted community treatment orders (1) If the chief psychiatrist considers that the criteria in section 93(1)(a) of the Sentencing Act 1991 do not apply to a person who is detained in an approved mental health service as an involuntary patient under a restricted involuntary treatment order, the chief psychiatrist must discharge the person from the restricted involuntary treatment order. (2) If the chief psychiatrist considers that the criteria in section 93(1)(a) of the Sentencing Act 1991 do not apply to a person who is receiving treatment from an approved mental health service under a restricted community treatment order, the chief psychiatrist must discharge the person from the restricted community treatment order. (3) In determining whether or not to discharge a person from a restricted involuntary treatment order or restricted community treatment order, the chief psychiatrist must have regard primarily to the person's current mental condition and consider his or her medical, psychiatric and forensic history and his or her social circumstances. s. 19 -- 32 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 30 (4) On the discharge of a person from a restricted community treatment order under sub-section (2), the person is taken to be discharged from his or her restricted involuntary treatment order and, consequently, he or she ceases to be an involuntary patient. 37B. Discharge of involuntary patients— assessment orders and diagnosis, assessment and treatment orders If the chief psychiatrist, having regard to the criteria in section 90(1)(b) or 91(1)(b) of the Sentencing Act 1991 (as the case requires), considers that the continued detention of a person in an approved mental health service under an assessment order or a diagnosis, assessment and treatment order is unnecessary, the chief psychiatrist must order that the person be discharged from the order. 37C. Discharge of involuntary patients— hospital transfer orders If the chief psychiatrist, having regard to the criteria in section 16(2)(a) and (4), considers that the continued detention of a person in an approved mental health service under a hospital transfer order is unnecessary, the chief psychiatrist must, after advising the Secretary to the Department of Justice, order that the person be discharged from the order and be returned to a prison or other place of confinement (within the meaning of section 16).". s. 19 -- 33 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 31 20. Consequential amendment of section 38 In section 38(b) of the Mental Health Act 1986, for "section 37(3)" substitute "section 37C". 21. New section 44 substituted For section 44 of the Mental Health Act 1986 substitute— "44. Board may order discharge On hearing an appeal or review, the Board may order that a person be discharged as a security patient and returned to a prison or other place of confinement if the Board is not satisfied that the continued detention of the person as a security patient is necessary, having regard to the clinical guidelines (if any) under section 43A and— (a) if the person is subject to a restricted hospital transfer order—the criteria specified in section 16(2)(a) and (4); or (b) if the person is subject to a hospital security order—the criteria specified in section 93A(1)(a) of the Sentencing Act 1991.". 22. Discharge by chief psychiatrist For section 45(1) of the Mental Health Act 1986 substitute— "(1) The chief psychiatrist may order that a person be discharged as a security patient and returned to a prison or other place of confinement if the chief psychiatrist is satisfied that the continued detention of the person as a security patient is not necessary, having regard to the clinical guidelines (if any) under section 43A and— s. 20 -- 34 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 32 (a) if the person is subject to a restricted hospital transfer order—the criteria specified in section 16(2)(a) and (4); or (b) if the person is subject to a hospital security order—the criteria specified in section 93A(1)(a) of the Sentencing Act 1991.". 23. New section 46 substituted For section 46 of the Mental Health Act 1986 substitute— "46. Notification and discharge (1) This section applies if— (a) the Board exercises its power under section 44 to discharge a person as a security patient; or (b) the chief psychiatrist exercises his or her power under section 45 to discharge a person as a security patient. (2) The Board or the chief psychiatrist (as the case requires) must immediately notify the Secretary to the Department of Justice. (3) The person is discharged as a security patient— (a) if an order has been made under section 74 of the Corrections Act 1986 that the person be released on parole and the time for release has occurred— on the making of the order for discharge; or (b) if not—on entering the legal custody of the Secretary to the Department of Justice.". s. 23 -- 35 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 33 24. Automatic discharge as a security patient In section 50(1) of the Mental Health Act 1986— (a) for "under section 16" substitute "as a security patient"; (b) in paragraph (c), for "training centre." substitute "training centre; or"; (c) after paragraph (c) insert— "(d) the expiry of the person's hospital security order.". 25. New section 150 inserted After section 149 of the Mental Health Act 1986 insert— '150. Transitional provision—Sentencing and Mental Health Acts (Amendment) Act 2005 (1) This Act, as in force immediately before the commencement day, continues to apply on and after that day to a person who, immediately before that day, was the subject of a hospital order made under section 93(1)(d) of the Sentencing Act 1991 or a restricted community treatment order made under section 15A of this Act as in force before that day. (2) On and from the commencement day a person who immediately before that day is detained in an approved mental health service under an order made under section 16 and who, immediately before the making of that order, had been detained in a prison under an order made under section 93(5) of the Sentencing Act 1991 must be taken to be detained in that service under a hospital security order. s. 24 -- 36 of 43 -- Part 3—Mental Health Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 34 (3) Sub-section (2) applies irrespective of the number of times the person has been transferred between a prison and an approved mental health service. (4) Sub-section (1) ceases to have effect 2 years after the commencement day. (5) In this section— "commencement day" means the day on which section 25 of the Sentencing and Mental Health Acts (Amendment) Act 2005 comes into operation.'. __________________ s. 25 -- 37 of 43 -- Part 4—Corrections Act 1986 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 35 PART 4—CORRECTIONS ACT 1986 26. Parole orders for persons subject to hospital security orders (1) Insert the following definition in section 3(1) of the Corrections Act 1986— ' "hospital security order" has the same meaning as in the Sentencing Act 1991;'. (2) After section 74(8) of the Corrections Act 1986 insert— "(8A) The Board may make a parole order for a person who is detained in an approved mental health service under a hospital security order, but the parole order does not take effect until the person is discharged as a security patient under the Mental Health Act 1986.". (3) In section 74(9) of the Corrections Act 1986, after "imprisonment" insert "and a person who is subject to a hospital security order". __________________ See: Act No. 117/1986. Reprint No. 5 as at 1 January 2004 and amending Act Nos 11/1993, 53/2003, 14/2004, 74/2004, 97/2004, 108/2004, 1/2005, 2/2005 and 18/2005. LawToday: www.dms. dpc.vic. gov.au s. 26 -- 38 of 43 -- Part 5—Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 36 PART 5—CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 27. Leave of absence (1) In the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— (a) in section 48— (i) omit "only"; (ii) omit "who are subject to a supervision order"; (b) for section 49(d) substitute— "(d) extended leave."; (c) at the foot of section 49 insert— "Note: Some forensic patients and forensic residents cannot be granted extended leave—see section 57(4)."; (d) section 56(2) is repealed. (2) For section 57(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute— "(4) This section does not apply to— (a) a forensic patient who is— (i) remanded in custody in an approved mental health service under this Act; or (ii) detained in an approved mental health service under section 30(2) or 30A(3); or (iii) deemed to be a forensic patient by section 73E(4) or 73K(8); or See: Act No. 65/1997. Reprint No. 2 as at 1 July 2002 and amending Act Nos 44/2004, 108/2004, 10/2005 and 18/2005. LawToday: www.dms. dpc.vic. gov.au s. 27 -- 39 of 43 -- Part 5—Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 37 (iv) detained in an approved mental health service under section 20BJ(1) or 20BM of the Crimes Act 1914 of the Commonwealth; or (b) a forensic resident who is— (i) remanded in custody in a residential service under this Act; or (ii) detained in a residential service under section 30(2) or 30A(3); or (iii) deemed to be a forensic resident by section 73E(4) or 73K(8).". (3) In section 60 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, omit "who are subject to supervision orders and by federal forensic patients". __________________ s. 27 -- 40 of 43 -- Part 6—Consequential Amendment of Other Acts Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 38 PART 6—CONSEQUENTIAL AMENDMENT OF OTHER ACTS 28. Magistrates' Court Act 1989 In section 16I(b)(iv) of the Magistrates' Court Act 1989, for "Mental Health Act 1986" substitute "Sentencing Act 1991". 29. Juries Act 2000 In Schedule 1 to the Juries Act 2000, in clauses 1(b), 2(b) and 3(b), for "section 93" substitute "section 93A". 30. Sex Offenders Registration Act 2004 In section 3 of the Sex Offenders Registration Act 2004— (a) in paragraph (a) of the definition of "government custody"— (i) in sub-paragraphs (iii) and (iv), after "1997" insert "who is not under a grant of extended leave under section 57 of that Act"; (ii) in sub-paragraph (v), for "made under section 93(1)(e)" substitute "within the meaning"; (iii) in sub-paragraph (vii), for "a hospital order made under section 93(1)(d) of the Sentencing Act 1991" substitute "an order made under section 93 of the Sentencing Act 1991 who is not also under an order made under section 15A of the Mental Health Act 1986"; (b) in paragraph (ad) of the definition of "sentence", for "section 93(1)(d)" substitute "section 93". s. 28 -- 41 of 43 -- Part 6—Consequential Amendment of Other Acts Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 39 31. Serious Sex Offenders Monitoring Act 2005 In the Serious Sex Offenders Monitoring Act 2005— (a) in section 3(1)— (i) insert the following definition— ' "restricted involuntary treatment order" means an order made under section 93 of the Sentencing Act 1991;'; (ii) the definition of "hospital order" is repealed; (iii) in the definition of "hospital security order", for "section 93(1)(e)" substitute "section 93A"; (b) in section 19(1)(d), for "hospital order" substitute "restricted involuntary treatment order". ═══════════════ s. 31 -- 42 of 43 -- Sentencing and Mental Health Acts (Amendment) Act 2005 Act No. 69/2005 40 ENDNOTES † Minister's second reading speech— Legislative Assembly: 17 August 2005 Legislative Council: 4 October 2005 The long title for the Bill for this Act was "to amend the Sentencing Act 1991, the Mental Health Act 1986, the Corrections Act 1986 and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, to make consequential amendments to other Acts and for other purposes. Endnotes -- 43 of 43 --