Tasmanian Bills Tasmanian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
MENTAL HEALTH AMENDMENT (SECURE
MENTAL HEALTH UNIT) BILL 2005
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - MENTAL HEALTH ACT 1996 AMENDED
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 5AA inserted
5AA. Meaning of "informed consent"
6. Section 5A amended (Application of Act)
7. Section 6 amended (Objects of Act)
8. Section 7 amended (Principle of minimum interference with civil
rights)
9. Section 9 amended (Approval of hospitals)
10. Section 10 amended (Approval of assessment centres)
11. Section 10A inserted
10A. Approval of secure mental health units
12. Section 11 amended (Revocation of approval)
13. Part 2, Division 1A inserted
Division 1A - Chief Forensic Psychiatrist
11A. Chief Forensic Psychiatrist
[Bill 69]-X
11B. Role, functions and powers of Chief Forensic
Psychiatrist
11C. Protection from liability of Chief Forensic
Psychiatrist
14. Part 2, Division 3 substituted
Division 3 - Delegations
14. Delegation by Minister
14A. Delegations by Secretary, controlling authority and
Chief Forensic Psychiatrist
15. Section 29 amended (Term and renewal of continuing care
order)
16. Part 5, Division 2 repealed
17. Section 34 amended (Physical restraint)
18. Section 35 amended (Seclusion of involuntary patients)
19. Section 36 amended (Monthly reports on bodily restraint and
seclusion)
20. Section 39 amended (Transfer of involuntary patient)
21. Section 44 amended (Term and renewal of community treatment
order)
22. Section 46 amended (Monthly reports)
23. Part 9: Heading amended
24. Part 9, Division 1: Heading amended
25. Section 48 amended (Establishment of Mental Health Tribunal)
26. Section 49 amended (Mental Health Tribunal to sit in divisions)
27. Section 50 amended (Mental Health Tribunal may act by
majority)
28. Part 9, Division 2: Heading amended
29. Section 51 amended (Functions of Mental Health Tribunal)
30. Section 52 amended (Reviews of certain orders, authorisations
and admissions)
31. Section 53 amended (Applications for review)
32. Section 54 amended (Notification and hearing of review)
33. Part 9, Division 3: Heading amended
34. Section 55 amended (Times and places of sittings)
2
35. Section 56 amended (General principles for hearings by Mental
Health Tribunal)
36. Section 57 amended (Representation in proceedings before
Mental Health Tribunal)
37. Section 58 amended (Evidence before Mental Health Tribunal)
38. Section 59 amended (Summonses to witnesses)
39. Section 60 amended (Power to require reports, &c.)
40. Section 61 amended (Medical examinations)
41. Section 62 amended (Visits by Mental Health Tribunal)
42. Section 63 amended (Right of Public Guardian and Secretary to
intervene)
43. Section 64 amended (Proceedings to be closed)
44. Part 9, Division 4: Heading amended
45. Section 65 amended (Powers of Mental Health Tribunal on
review)
46. Section 66 amended (Evidence of Mental Health Tribunal's
determination)
47. Section 67 amended (Obligation to comply with determinations)
48. Section 68 amended (Register)
49. Section 69 amended (Annual report of Mental Health Tribunal)
50. Parts 10A and 10B inserted
PART 10A - Secure Mental Health Units
Division 1 - Admission to secure mental health units
72A. Admission of forensic patients
72B. Admission of involuntary patients
72C. Review of admission under section 72B
72D. Notifying next of kin, &c., of admission
72E. Right of certain forensic patients to request return to
prison
Division 2 - Medical treatment of forensic patients
72F. Interpretation of "medical treatment"
72G. Medical treatment generally
72H. Medical treatment for forensic patients who do not
consent in urgent circumstances
72I. Authorisation of medical treatment by Forensic
Tribunal
72J. Interim authorisation
3
72K. Right to second opinion
Division 3 - Non-medical treatment of forensic patients
Subdivision 1 - Restraint and seclusion
72L. Physical restraint
72M. Use of force
72N. Seclusion of forensic patients
72O. Monthly reports on bodily restraint and seclusion
Subdivision 2 - Leave of absence
72P. Leave of absence for forensic patients generally
72Q. Leave of absence for forensic patients on restriction
orders
72R. Notification of victims
Subdivision 3 - Visits, telephone calls and mail
72S. Interpretation of Subdivision
72T. Visits
72U. Visitors to give information
72V. Visits by police
72W. Refusal of visitor
72X. Visit may be terminated
72Y. Formal searches
72Z. Telephone calls
73. Mail
Subdivision 4 - Further matters relating to treatment of
forensic patients
73A. Further rights of forensic patients
73B. Medical tests for HIV, &c.
Subdivision 5 - Transfer of forensic patient to another secure
mental health unit or a secure institution
73C. Transfer of forensic patient to another secure mental
health unit
73D. Secure institution
73E. Removal of forensic patient to hospital, secure
institution, &c.
Division 4 - Return of forensic patients to secure mental
health unit
73F. Return of forensic patients in Tasmania to secure
mental health unit
73G. Return of forensic patients outside Tasmania to
secure mental health unit
Division 5 - Miscellaneous
73H. Searching persons in secure mental health unit
73I. Seizure
73J. Offence to bring certain things into secure mental
health unit
4
73K. Bringing prisoners before courts
73L. Presence at taking of certain depositions
73M. Court may proceed in absence of forensic patient,
&c.
73N. Custody
73O. Application of Part to places other than secure
mental health units
73P. Notifying victims of release
73Q. Application of Corrections Act 1997 to forensic
patients who are prisoners
73R. Warrant of commitment not void
73S. Preservation of royal prerogative of mercy
PART 10B - Forensic Tribunal
Division 1 - Establishment of Forensic Tribunal
73T. Establishment of Forensic Tribunal
73U. Membership of Forensic Tribunal
73V. Functions and powers of Forensic Tribunal
73W. Decisions of Forensic Tribunal
73X. Staff of Forensic Tribunal
73Y. Assistance, resources and facilities
73Z. Appointment of persons to assist Forensic Tribunal
Division 2 - Proceedings of Forensic Tribunal
74. Interpretation of Division
74A. Sittings
74B. Notification of hearings
74C. General principles for hearings
74D. Representation in proceedings before Forensic
Tribunal
74E. Evidence before Forensic Tribunal
74F. Summoning of witnesses
74G. Power to require reports, &c.
74H. Medical examinations
74I. Visits by Forensic Tribunal
74J. Right of certain persons to intervene
74K. Proceedings to be closed
Division 3 - Forensic Tribunal Member Register
74L. Forensic Tribunal Member Register
74M. Calling for interested persons
74N. Entering persons in Forensic Tribunal Member
Register
Division 4 - Miscellaneous
74O. Annual report of Forensic Tribunal
51. Section 73 amended (Appointment of official visitors)
5
52. Section 74 renumbered
53. Section 75 amended (Functions of official visitor)
54. Section 77 amended (Visiting approved hospitals and secure
mental health unit)
55. Section 78 amended (Controlling authority to facilitate visits on
request)
56. Section 79 substituted
79. Reports of suspected contravention of this Act
57. Section 81 amended (Annual report by coordinating official
visitor)
58. Section 82 amended (Transfer agreements)
59. Section 83 amended (Effect of transfer agreements)
60. Section 83B amended (Agreements for the return, &c., of
absconding involuntary patients)
61. Section 83F amended (Apprehension, &c., of involuntary
patients found interstate)
62. Section 84 amended (Protection relating to reports and
information)
63. Section 85 amended (Confidentiality of information)
64. Section 86 amended (Protection from liability)
65. Section 88 amended (Removal, &c., of involuntary patient or
forensic patient)
66. Section 89 amended (Obstruction)
67. Section 90 amended (Confidentiality)
68. Section 91 amended (Non-compliance with legal process)
69. Section 93 amended (Disqualification of certain medical
practitioners)
70. Section 95 amended (Regulations)
71. Section 98 repealed
72. Schedule 1 amended (Members and staff of the Mental Health
Tribunal)
73. Schedule 1A inserted
SCHEDULE 1A - MEMBERSHIP OF FORENSIC
TRIBUNAL
6
PART 3 - CORONERS ACT 1995 AMENDED
74. Principal Act
75. Section 3 amended (Interpretation)
76. Section 19 amended (Obligation to report death)
77. Section 24 amended (Jurisdiction of coroner to hold inquest into
a death)
78. Section 28 amended (Findings, &c., of coroner investigating a
death)
PART 4 - CORRECTIONS ACT 1997 AMENDED
79. Principal Act
80. Section 3 amended (Interpretation)
81. Section 36 amended (Removal of prisoners and detainees to
other prisons and to hospitals, &c.)
82. Sections 36A and 36B inserted
36A. Removal of prisoners and detainees to secure mental
health units
36B. Appeal against direction under section 36A
83. Section 39 amended (Effect of directions and orders under
sections 36, 36A, 36B, 37, 37A and 38)
84. Section 40 amended (Custody of prisoners and detainees
removed pursuant to sections 36, 36A, 37, 37A and 38)
85. Section 72 amended (Release on parole)
86. Section 83BA inserted
83BA. Application of Part 8 to person in secure mental
health unit
PART 5 - CRIMINAL CODE ACT 1924 AMENDED
87. Principal Act
88. Principal Act amended
PART 6 - CRIMINAL JUSTICE (MENTAL IMPAIRMENT) ACT 1999
AMENDED
89. Principal Act
90. Section 3 amended (Interpretation)
91. Section 4 amended (Application of Act)
7
92. Sections 6 and 7 repealed
93. Section 18 amended (Effect of findings)
94. Section 21 substituted
21. Procedure for dealing with persons found not guilty
by reason of insanity
21A. Referral of matter of forensic order to Supreme
Court
95. Part 4: Heading amended
96. Section 22 amended (Interpretation: Part 4)
97. Part 4, Division 2 repealed
98. Sections 24 and 25 substituted
24. Restriction orders
99. Section 26 amended (Discharge of restriction orders)
100. Sections 27 and 28 substituted
27. Powers of Supreme Court on discharge of restriction
order
101. Section 29 amended (Subsequent fitness for trial of person
subject to continuing care order or forensic order)
102. Section 29A inserted
29A. Supervision orders
103. Section 30 amended (Variation or revocation of supervision
order)
104. Section 31 substituted
31. Apprehension of defendant under supervision order
31A. Suspension of supervision order while defendant
imprisoned
105. Part 4, Division 5A inserted
Division 5A - Continuing care orders and community
treatment orders
31B. Continuing care orders
31C. Community treatment orders
106. Section 34 substituted
34. Principle on which courts are to act
107. Section 35 amended (Matters to which courts are to have regard)
108. Section 36 amended (Appeals)
109. Part 4, Division 8: Heading amended
8
110. Section 37 substituted
37. Review of persons detained under forensic orders
111. Section 39 amended (Power of court to deal with defendant
before proceedings completed)
112. Sections 39A, 39B and 39C inserted
39A. Limitation on making certain orders in respect of
youth
39B. Report of Chief Forensic Psychiatrist
39C. Custody on making of order committing defendant to
secure mental health unit
113. Section 41 amended (Arrest of person escaping from detention
or absent without leave)
114. Section 41A inserted
41A. Delegations by Secretary of responsible Department
in relation to Mental Health Act 1996 and Chief
Forensic Psychiatrist
115. Section 42A inserted
42A. Provision of reports to certain persons
116. Sections 43 and 44 substituted
43. Regulations
44. Savings and transitional provisions consequent on
the enactment of the Mental Health Amendment
(Secure Mental Health Unit) Act 2005
PART 7 - FORENSIC PROCEDURES ACT 2000 AMENDED
117. Principal Act
118. Section 26 amended (Non-intimate forensic procedure on order
of police officer)
119. Section 28 amended (Forensic procedure carried out in prison,
&c.)
PART 8 - GUARDIANSHIP AND ADMINISTRATION ACT 1995
AMENDED
120. Principal Act
121. Section 3 amended (Interpretation)
122. Part 6, Division 2A inserted
Division 2A - Power to make guardianship order or
administration order
9
46A. Power to make guardianship order or administration
order
123. Schedule 1 amended (Members of Board)
PART 9 - JUSTICES ACT 1959 AMENDED
124. Principal Act
125. Section 47 substituted
47. Place of committal when defendant on remand
126. Section 144 amended (Rules of court)
PART 10 - SENTENCING ACT 1997 AMENDED
127. Principal Act
128. Section 4 amended (Interpretation)
129. Part 10: Heading amended
130. Section 72 amended (Court may make assessment order)
131. Section 73 amended (What is an assessment order?)
132. Section 75 amended (Continuing care order, supervision order
and restriction order)
133. Sections 76, 77 and 78 substituted
76. What is a continuing care order?
77. What is a restriction order?
77A. What is a supervision order?
77B. Principle on which courts are to act
78. Custody of admitted person
134. Section 79 amended (Effect of continuing care order)
135. Section 79A amended (Arrest of assessment order detainees who
abscond)
136. Section 79B amended (Arrest of detainees who flee the State)
PART 11 - YOUTH JUSTICE ACT 1997 AMENDED
137. Principal Act
138. Section 25 amended (How youth is to be dealt with if not
granted bail)
139. Section 105 substituted
105. Adjournment to determine mental health or disability
of youth
140. Section 108B amended (Application of Part 5)
10
141. Sections 134A and 134B inserted
134A. Removal of detainee to secure mental health unit
134B. Appeal against direction under section 134A
11
12
MENTAL HEALTH AMENDMENT (SECURE
MENTAL HEALTH UNIT) BILL 2005
(Brought in by the Minister for Health and Human Services,
the Honourable David Edward Llewellyn)
A BILL FOR
An Act to establish a secure mental health unit within the
mental health system, to establish the Forensic Tribunal, to
amend the Mental Health Act 1996 for these purposes, to
amend certain other Acts and for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Mental Health
Amendment (Secure Mental Health Unit) Act
2005.
2. Commencement
This Act commences on 20 February 2006.
[Bill 69] 13
s. 3 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
PART 2 - MENTAL HEALTH ACT 1996 AMENDED
3. Principal Act
In this Part, the Mental Health Act 1996* is
referred to as the Principal Act.
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting "or the Chief Forensic
Psychiatrist" after "hospital" in the
definition of "approved psychiatric
nurse";
(b) by inserting the following definition after
the definition of "authorised officer":
"authorised person" means a person,
or a person of a class of persons,
authorised by the Chief Forensic
Psychiatrist or the controlling
authority of a secure mental
health unit for the purposes of
Part 10A or a provision of that
Part, as specified in the
authorisation;
(c) by inserting the following definition after
the definition of "bodily restraint":
*No. 31 of 1996
14
2005 Mental Health Amendment (Secure No. s. 4
Mental Health Unit)
"Chief Forensic Psychiatrist" means
the Chief Forensic Psychiatrist
appointed under section 11A;
(d) by omitting "hospital or an assessment
centre" from paragraph (a) of the
definition of "controlling authority" and
substituting "hospital, assessment centre
or secure mental health unit";
(e) by omitting paragraph (b) from the
definition of "controlling authority" and
substituting the following paragraph:
(b) in the case of any other hospital,
assessment centre or secure
mental health unit, the body or
person specified to be the
controlling authority in the
Minister's approval under
section 9, 10 or 10A;
(f) by inserting "Mental Health" after "of
the" in the definition of "Deputy
President";
(g) by inserting "Mental Health" after "the"
in the definition of "determination";
(h) by inserting the following definitions
after the definition of "Director":
"forensic patient" means a person
who is admitted to a secure
mental health unit in accordance
with section 72A and who has not
been discharged from that secure
mental health unit;
15
s. 4 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
"Forensic Tribunal" means the
Forensic Tribunal established by
section 73T;
"Forensic Tribunal Member
Register" means a register kept
under section 74L;
"functions" includes duties;
(i) by omitting "the Tribunal" twice
occurring from the definition of
"jurisdiction" and substituting "the
Mental Health Tribunal";
(j) by inserting the following definitions
after the definition of "jurisdiction":
"legal practitioner" has the same
meaning as in the Legal
Profession Act 1993;
"Mental Health Tribunal" means the
Mental Health Review Tribunal
continued under section 48 as the
Mental Health Tribunal;
(k) by omitting "section 73" from the
definition of "official visitor" and
substituting "section 74P";
(l) by inserting the following definition after
the definition of "parent":
"patient" means a person admitted as
a patient to an approved hospital,
assessment centre or secure
mental health unit under this Act;
16
2005 Mental Health Amendment (Secure No. s. 4
Mental Health Unit)
(m) by inserting the following definition after
the definition of "person responsible":
"premises" includes a part of
premises;
(n) by inserting "Mental Health" after "of
the" in the definition of "President";
(o) by inserting the following definitions
after the definition of "President":
"prison" means -
(a) a prison within the
meaning of the
Corrections Act 1997; or
(b) a detention centre within
the meaning of the Youth
Justice Act 1997;
"prisoner" means -
(a) a prisoner within the
meaning of the
Corrections Act 1997; or
(b) a detainee within the
meaning of the
Corrections Act 1997; or
(c) a person who is serving a
sentence of detention
imposed under the Youth
Justice Act 1997 or is
subject to an order under
that Act remanding the
person to a detention
centre;
17
s. 4 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(p) by omitting "holding an authorisation"
from the definition of "psychiatric nurse"
and substituting "who is qualified";
(q) by inserting the following definition after
the definition of "psychiatric nurse":
"psychiatrist" means a registered
medical practitioner who is a
Fellow of the Royal College of
Australian and New Zealand
College of Psychiatrists or who
has been registered either under
section 21(2)(e) of the Medical
Practitioners Registration Act
1996 to practise in the specialty
of psychiatry or under section
21(2)(g) of that Act to practise as
a psychiatrist in a declared area of
need;
(r) by inserting "Mental Health" after "of
the" in the definition of "registrar";
(s) by inserting the following definition after
the definition of "regulations":
"restriction order" means a
restriction order made under the
Criminal Justice (Mental
Impairment) Act 1999 or
Sentencing Act 1997;
(t) by inserting the following definitions
after the definition of "Secretary":
"Secretary (Corrections)" means the
Secretary of the responsible
18
2005 Mental Health Amendment (Secure No. s. 4
Mental Health Unit)
Department in relation to the
Corrections Act 1997;
"Secretary (Youth Justice)" means
the Secretary of the responsible
Department in relation to the
Youth Justice Act 1997;
"secure institution" means an
institution approved to be a
secure institution under
section 73D;
"secure mental health unit" means
premises, or a part of premises,
approved by the Minister under
section 10A to be a secure mental
health unit;
"sentence of imprisonment" includes
a sentence of detention imposed
under the Youth Justice Act 1997;
(u) by omitting the definition of "Tribunal"
and substituting the following
definitions:
"statutory authority" means an
incorporated or unincorporated
body which is established,
constituted or continued by or
under an Act or under the royal
prerogative, being a body which,
or of which the governing
authority, wholly or partly
comprises a person or persons
appointed by the Governor, a
Minister of the Crown or another
statutory authority;
19
s. 5 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
"supervision order" means a
supervision order made under the
Criminal Justice (Mental
Impairment) Act 1999 or
Sentencing Act 1997;
"Victims Register" means the victims
register referred to in section 72
of the Corrections Act 1997;
"young prisoner" means -
(a) a person who is serving a
sentence of detention
imposed under the Youth
Justice Act 1997 and, if
not a forensic patient,
would be serving that
sentence in a detention
centre; or
(b) a person who is subject to
an order under that or
another Act remanding
the person to a detention
centre.
5. Section 5AA inserted
After section 5 of the Principal Act, the
following section is inserted in Part 1:
5AA. Meaning of "informed consent"
(1) A person is taken to have given informed
consent to proposed medical treatment if,
and only if, the following requirements
are satisfied:
20
2005 Mental Health Amendment (Secure No. s. 5
Mental Health Unit)
(a) the person is, in the opinion of the
medical practitioner who is
responsible for administering the
proposed treatment, mentally
capable of understanding the
general nature and effect of the
proposed treatment;
(b) the person, after being given the
information required under
subsection (2), freely and
voluntarily consents to the
proposed treatment;
(c) the person has not withdrawn the
consent.
(2) The medical practitioner who is
responsible for the administration of
medical treatment to a person must give
the person whose consent to medical
treatment is sought -
(a) a clear explanation of the
proposed treatment; and
(b) a description, without
concealment or distortion, of the
benefits and disadvantages of the
treatment, including a statement
of the risk of adverse
consequences; and
(c) a description of alternative forms
of treatment that may be available
and their benefits and
disadvantages; and
21
s. 6 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(d) clear answers to questions asked
by the person; and
(e) a reasonable opportunity to obtain
independent medical or other
advice.
6. Section 5A amended (Application of Act)
Section 5A of the Principal Act is amended as
follows:
(a) by inserting in paragraph (a) "restriction
order, supervision order," after "a";
(b) by inserting in paragraph (b) "restriction
order, supervision order or" after "a".
7. Section 6 amended (Objects of Act)
Section 6 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b) "patients
with" and substituting "patients, forensic
patients and persons subject to
supervision orders or community
treatment orders who have";
(b) by inserting the following paragraph after
paragraph (c):
(ca) to provide for the authorising of
medical treatment by the Forensic
Tribunal; and
22
2005 Mental Health Amendment (Secure No. s. 8
Mental Health Unit)
(c) by omitting from paragraph (j)
"community." and substituting
"community; and";
(d) by inserting the following paragraph after
paragraph (j):
(k) to ensure that, in relation to
patients, all appropriate measures
are taken to protect the safety of
the patients and other persons.
8. Section 7 amended (Principle of minimum
interference with civil rights)
Section 7 of the Principal Act is amended as
follows:
(a) by inserting "forensic patient or person
subject to a supervision order or
community treatment order," after
"involuntary patient,";
(b) by omitting from paragraph (a) "and
interference with the patient's" and
substituting "or person and interference
with that patient's or person's";
(c) by omitting from paragraph (a) "the
patient and others;" and substituting "that
patient or person and other persons and,
in relation to a forensic patient, the good
order and security of the secure mental
health unit;";
(d) by omitting from paragraph (b) "the
patient's" first occurring and substituting
"that patient's or person's";
23
s. 9 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(e) by omitting from paragraph (b)(i) "the
patient's" and substituting "that patient's
or person's";
(f) by omitting from paragraph (b)(ii) "the
patient and others." and substituting "that
patient or person and other persons; and";
(g) by inserting the following subparagraph
after subparagraph (ii) in paragraph (b):
(iii) in the case of a forensic patient,
the good order and security of the
secure mental health unit.
9. Section 9 amended (Approval of hospitals)
Section 9 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "the
controlling" and substituting "the
prospective controlling";
(b) by inserting in subsection (1) "that is
intended to be an approved hospital"
after "a hospital";
(c) by omitting from subsection (2)(b) "the
controlling" and substituting "the
prospective controlling";
(d) by omitting subsection (3) and
substituting the following subsection:
(3) An approval -
(a) is to specify who is the
controlling authority for
24
2005 Mental Health Amendment (Secure No. s. 10
Mental Health Unit)
the approved hospital if
the approved hospital is
not to be maintained and
operated by the State; and
(b) may be granted on any
conditions the Minister
considers appropriate.
10. Section 10 amended (Approval of assessment
centres)
Section 10 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "the
controlling" and substituting "the
prospective controlling";
(b) by inserting in subsection (1) "premises
that are intended to be" after "authority
of";
(c) by inserting in subsection (1) "premises
as an" after "approve the";
(d) by omitting from subsection (2)(b) "the
controlling" and substituting "the
prospective controlling";
(e) by omitting subsection (3) and
substituting the following subsection:
(3) An approval -
(a) is to specify who is the
controlling authority for
the assessment centre if
25
s. 11 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
the assessment centre is
not to be maintained and
operated by the State; and
(b) may be granted on any
conditions the Minister
considers appropriate.
11. Section 10A inserted
After section 10 of the Principal Act, the
following section is inserted in Division 1:
10A. Approval of secure mental health units
(1) The Minister, on the application of a
prospective controlling authority of
premises that are intended to be a secure
mental health unit, may approve the
premises to be a secure mental health
unit for the care and treatment of persons
subject to restriction orders.
(2) Before the Minister approves a secure
mental health unit under this section, the
Minister must be satisfied that -
(a) the secure mental health unit is
properly equipped and staffed for
the care and treatment of forensic
patients; and
(b) the prospective controlling
authority is a suitable body or
person to be in charge of a secure
mental health unit.
(3) An approval -
26
2005 Mental Health Amendment (Secure No. s. 12
Mental Health Unit)
(a) is to specify who is the
controlling authority for the
secure mental health unit if the
secure mental health unit is not to
be maintained and operated by
the State; and
(b) may be granted on any conditions
the Minister considers
appropriate.
12. Section 11 amended (Revocation of approval)
Section 11(2)(a) of the Principal Act is amended
by omitting "hospital or assessment centre" and
substituting "approved hospital, assessment
centre or secure mental health unit".
13. Part 2, Division 1A inserted
After section 11 of the Principal Act, the
following Division is inserted in Part 2:
Division 1A - Chief Forensic Psychiatrist
11A. Chief Forensic Psychiatrist
(1) The Secretary may appoint -
(a) a State Service officer or State
Service employee employed in
the Department who is a
psychiatrist; or
(b) with the consent of another Head
of a State Service Agency, a State
27
s. 13 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
Service officer or State Service
employee employed in that
Agency who is a psychiatrist -
to be Chief Forensic Psychiatrist and that
officer or employee may hold that office
in conjunction with State Service
employment.
(2) The Chief Forensic Psychiatrist holds
office for the period, and on the terms
and conditions, specified in his or her
instrument of appointment.
(3) The Secretary may appoint -
(a) a State Service officer or State
Service employee employed in
the Department who is a
psychiatrist; or
(b) with the consent of another Head
of a State Service Agency, a State
Service officer or State Service
employee employed in that
Agency who is a psychiatrist -
to act in the office of Chief Forensic
Psychiatrist if the Chief Forensic
Psychiatrist has died, resigned or been
removed from office and a new Chief
Forensic Psychiatrist has not been
appointed.
(4) A person appointed to act in the office of
Chief Forensic Psychiatrist -
28
2005 Mental Health Amendment (Secure No. s. 13
Mental Health Unit)
(a) may act in that office in
conjunction with State Service
employment; and
(b) while acting in that office, is
taken to be the Chief Forensic
Psychiatrist.
11B. Role, functions and powers of Chief Forensic
Psychiatrist
(1) The Chief Forensic Psychiatrist is to
report to the Secretary in relation to -
(a) the care and treatment of forensic
patients and persons subject to
supervision orders; and
(b) whether the objects of this Act
are being met with respect to
forensic patients, persons subject
to supervision orders and secure
mental health units.
(2) The Chief Forensic Psychiatrist has the
functions imposed by this and any other
Act.
(3) The Chief Forensic Psychiatrist has the
following powers:
(a) the power to make standing
orders -
(i) for the management and
security of secure mental
health units; and
29
s. 13 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(ii) for the welfare,
protection, care, treatment
and control of forensic
patients and persons
subject to supervision
orders; and
(iii) as otherwise required or
contemplated by this Act;
(b) all other powers given by this and
any other Act;
(c) the power to do all things
necessary or convenient to
perform his or her functions.
11C. Protection from liability of Chief Forensic
Psychiatrist
(1) The Chief Forensic Psychiatrist does not
incur any personal liability in respect of
any act done or omitted to be done by the
Chief Forensic Psychiatrist in good faith
in the performance or exercise, or
purported performance or exercise, of
any of his or her functions or powers or
in the administration or execution, or
purported administration or execution, of
this Act.
(2) Subsection (1) does not preclude the
Crown from incurring liability that the
Chief Forensic Psychiatrist would, but
for that subsection, incur.
30
2005 Mental Health Amendment (Secure No. s. 14
Mental Health Unit)
14. Part 2, Division 3 substituted
Division 3 of Part 2 of the Principal Act is
repealed and the following Division is
substituted:
Division 3 - Delegations
14. Delegation by Minister
The Minister may delegate any of his or
her functions or powers under this Act,
other than this power of delegation.
14A. Delegations by Secretary, controlling
authority and Chief Forensic Psychiatrist
(1) The Secretary may delegate any of his or
her functions or powers under this Act,
other than this power of delegation and
the power to appoint the Chief Forensic
Psychiatrist or a person to act in the
office of Chief Forensic Psychiatrist
under section 11A.
(2) The controlling authority of an approved
hospital, assessment centre or secure
mental health unit may delegate any of
its functions or powers under this or any
other Act, other than this power of
delegation.
(3) The Chief Forensic Psychiatrist may
delegate any of his or her functions or
powers under this or any other Act, other
than this power of delegation.
31
s. 15 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
15. Section 29 amended (Term and renewal of
continuing care order)
Section 29(2) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b) "the
Tribunal," and substituting "the Mental
Health Tribunal,";
(b) by inserting in paragraph (d) "is not"
after "renewed or";
(c) by omitting from paragraph (d)
"renewed." and substituting "renewed;
or";
(d) by inserting the following paragraph after
paragraph (d):
(e) the patient becomes a forensic
patient.
16. Part 5, Division 2 repealed
Division 2 of Part 5 of the Principal Act is
repealed.
17. Section 34 amended (Physical restraint)
Section 34(c) of the Principal Act is amended by
inserting "Mental Health" after "by the".
32
2005 Mental Health Amendment (Secure No. s. 18
Mental Health Unit)
18. Section 35 amended (Seclusion of involuntary
patients)
Section 35(2)(a)(i) of the Principal Act is
amended by inserting "Mental Health" after "by
the".
19. Section 36 amended (Monthly reports on bodily
restraint and seclusion)
Section 36 of the Principal Act is amended by
inserting "Mental Health" after "the".
20. Section 39 amended (Transfer of involuntary
patient)
Section 39 of the Principal Act is amended as
follows:
(a) by inserting in subsection (4) "Mental
Health" after "The";
(b) by inserting in subsection (5) "Mental
Health" after "subsection (4), the".
21. Section 44 amended (Term and renewal of
community treatment order)
Section 44(4)(b) of the Principal Act is amended
by omitting "the Tribunal," and substituting "the
Mental Health Tribunal,".
33
s. 22 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
22. Section 46 amended (Monthly reports)
Section 46 of the Principal Act is amended by
inserting "Mental Health" after "the".
23. Part 9: Heading amended
Part 9 of the Principal Act is amended by
inserting in the heading to that Part "MENTAL
HEALTH" after "THE".
24. Part 9, Division 1: Heading amended
Division 1 of Part 9 of the Principal Act is
amended by inserting in the heading to that
Division "Mental Health" after "the".
25. Section 48 amended (Establishment of Mental
Health Tribunal)
Section 48 of the Principal Act is amended as
follows:
(a) by inserting in subsection (2) "Mental
Health" after "The";
(b) by inserting in subsection (2)(b) "Mental
Health" after "of the";
(c) by inserting in subsection (3) "Mental
Health" after "of the".
34
2005 Mental Health Amendment (Secure No. s. 26
Mental Health Unit)
26. Section 49 amended (Mental Health Tribunal to sit
in divisions)
Section 49 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "Mental
Health" after "The";
(b) by inserting in subsection (3) "Mental
Health" after "division of the";
(c) by inserting in subsection (4) "Mental
Health" after "the".
27. Section 50 amended (Mental Health Tribunal may
act by majority)
Section 50 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "Mental
Health" after "If the";
(b) by omitting from subsection (1)(a) "the
Tribunal" and substituting "the Mental
Health Tribunal";
(c) by inserting in subsection (1)(b) "Mental
Health" after "decision of the";
(d) by inserting in subsection (2) "Mental
Health" after "of the".
35
s. 28 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
28. Part 9, Division 2: Heading amended
Division 2 of Part 9 of the Principal Act is
amended by inserting in the heading to that
Division "Mental Health" after "The".
29. Section 51 amended (Functions of Mental Health
Tribunal)
Section 51 of the Principal Act is amended as
follows:
(a) by inserting "Mental Health" after
"functions of the";
(b) by inserting the following paragraph after
paragraph (d):
(da) to review a decision to admit an
involuntary patient to a secure
mental health unit under
section 72B; and
(c) by inserting in paragraph (e) "Mental
Health" after "on the".
30. Section 52 amended (Reviews of certain orders,
authorisations and admissions)
Section 52 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "Mental
Health" after "The";
(b) by inserting in subsection (2) "Mental
Health" after "The";
36
2005 Mental Health Amendment (Secure No. s. 31
Mental Health Unit)
(c) by inserting in subsection (3) "Mental
Health" after "The";
(d) by inserting the following subsection
after subsection (3):
(3A) The Mental Health Tribunal must
review the admission of an
involuntary patient to a secure
mental health unit under
section 72B within 3 days after
the date on which the patient is so
admitted.
(e) by inserting in subsection (4) "Mental
Health" after "section, the";
(f) by inserting in subsection (4) "Mental
Health" after "of the";
(g) by inserting in subsection (5) "Mental
Health" after "The";
(h) by inserting in subsection (6) "Mental
Health" after "The".
31. Section 53 amended (Applications for review)
Section 53(5) of the Principal Act is amended by
inserting "Mental Health" after "by the".
32. Section 54 amended (Notification and hearing of
review)
Section 54(1)(d) of the Principal Act is amended
by inserting "Mental Health" after "the".
37
s. 33 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
33. Part 9, Division 3: Heading amended
Division 3 of Part 9 of the Principal Act is
amended by inserting in the heading to that
Division "Mental Health" after "The".
34. Section 55 amended (Times and places of sittings)
Section 55 of the Principal Act is amended by
inserting "Mental Health" after "The".
35. Section 56 amended (General principles for
hearings by Mental Health Tribunal)
Section 56 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "Mental
Health" after "The";
(b) by inserting in subsection (2) "Mental
Health" after "The".
36. Section 57 amended (Representation in proceedings
before Mental Health Tribunal)
Section 57 of the Principal Act is amended as
follows:
(a) by inserting in subsection (2) "Mental
Health" after "before the";
(b) by inserting in subsection (3) "Mental
Health" after "before the";
38
2005 Mental Health Amendment (Secure No. s. 37
Mental Health Unit)
(c) by inserting in subsection (4) "Mental
Health" after "before the".
37. Section 58 amended (Evidence before Mental
Health Tribunal)
Section 58 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "Mental
Health" after "The";
(b) by inserting in subsection (2) "Mental
Health" after "the";
(c) by inserting in subsection (3) "Mental
Health" after "the";
(d) by inserting in subsection (4) "Mental
Health" after "given before the";
(e) by inserting in subsection (4)(b) "Mental
Health" after "the";
(f) by inserting in subsection (5) "Mental
Health" after "witness before the";
(g) by inserting in subsection (6) "Mental
Health" after "to the".
38. Section 59 amended (Summonses to witnesses)
Section 59 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "Mental
Health" after "The";
39
s. 39 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) by inserting in subsection (2) "Mental
Health" after "by the";
(c) by inserting in subsection (2) "Mental
Health" after "and the".
39. Section 60 amended (Power to require reports, &c.)
Section 60 of the Principal Act is amended as
follows:
(a) by inserting "Mental Health" after "The";
(b) by inserting in paragraph (a) "Mental
Health" after "the".
40. Section 61 amended (Medical examinations)
Section 61 of the Principal Act is amended as
follows:
(a) by inserting in subsection (2) "Mental
Health" after "The";
(b) by inserting in subsection (2) "Mental
Health" after "before the";
(c) by inserting in subsection (2) "Mental
Health" after "of the";
(d) by inserting in subsection (3) "Mental
Health" after "The";
(e) by inserting in subsection (6) "Mental
Health" after "provide the".
40
2005 Mental Health Amendment (Secure No. s. 41
Mental Health Unit)
41. Section 62 amended (Visits by Mental Health
Tribunal)
Section 62 of the Principal Act is amended as
follows:
(a) by inserting "Mental Health" after
"The";
(b) by inserting "Mental Health" after "the".
42. Section 63 amended (Right of Public Guardian and
Secretary to intervene)
Section 63 of the Principal Act is amended by
inserting "Mental Health" after "before the".
43. Section 64 amended (Proceedings to be closed)
Section 64 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "Mental
Health" after "before the";
(b) by inserting in subsection (2) "Mental
Health" after "before the";
(c) by inserting in subsection (3) "Mental
Health" after "subsection (2), the";
(d) by inserting in subsection (4) "Mental
Health" after "proceedings, the".
41
s. 44 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
44. Part 9, Division 4: Heading amended
Division 4 of Part 9 of the Principal Act is
amended by inserting in the heading to that
Division "Mental Health" after "the".
45. Section 65 amended (Powers of Mental Health
Tribunal on review)
Section 65 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "Mental
Health" after "The";
(b) by inserting in subsection (1)(b) "Mental
Health" after "the";
(c) by inserting in subsection (1)(c) "Mental
Health" after "directions the";
(d) by inserting in subsection (2) "Mental
Health" after "The";
(e) by omitting from subsection (2) "the
Tribunal" and substituting "it".
46. Section 66 amended (Evidence of Mental Health
Tribunal's determination)
Section 66 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "Mental
Health" after "by the";
42
2005 Mental Health Amendment (Secure No. s. 47
Mental Health Unit)
(b) by inserting in subsection (2) "Mental
Health" after "member of the";
(c) by inserting in subsection (3) "Mental
Health" after "made by the".
47. Section 67 amended (Obligation to comply with
determinations)
Section 67 of the Principal Act is amended by
inserting "Mental Health" after "the".
48. Section 68 amended (Register)
Section 68 of the Principal Act is amended as
follows:
(a) by inserting in paragraph (a) "Mental
Health" after "the";
(b) by inserting in paragraph (b) "Mental
Health" after "the".
49. Section 69 amended (Annual report of Mental
Health Tribunal)
Section 69(1) of the Principal Act is amended by
inserting "Mental Health" after "The".
50. Parts 10A and 10B inserted
After section 72 of the Principal Act, the
following Parts are inserted:
43
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
PART 10A - SECURE MENTAL HEALTH UNITS
Division 1 - Admission to secure mental health units
72A. Admission of forensic patients
(1) A person may be admitted to a secure
mental health unit as a forensic patient
if -
(a) the person is subject to a
restriction order; or
(b) the person is subject to a
supervision order and is
apprehended under section 31 of
the Criminal Justice (Mental
Impairment) Act 1999; or
(c) the person is subject to an order
under section 39(1)(b)(ii) of the
Criminal Justice (Mental
Impairment) Act 1999; or
(d) the person is subject to an
assessment order made under the
Sentencing Act 1997; or
(e) the person is subject to an order
made under section 47 of the
Justices Act 1959 committing him
or her to a secure mental health
unit; or
(f) the person is subject to an order
made under section 348 of the
Criminal Code remanding him or
her to a secure mental health unit;
or
44
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(g) the person is subject to an order
made under section 105 of the
Youth Justice Act 1997
remanding him or her to a secure
mental health unit; or
(h) the person is subject to any other
order of a court made under the
Criminal Justice (Mental
Impairment) Act 1999, the
Criminal Code Act 1924, the
Sentencing Act 1997, the Youth
Justice Act 1997 or the Justices
Act 1959 remanding or
committing him or her to or in, or
otherwise requiring him or her to
be detained in, a secure mental
health unit; or
(i) in the case of a person who is a
prisoner but not a detainee under
the Youth Justice Act 1997, the
Director makes a direction under
section 36A(2) or (3) of the
Corrections Act 1997 that the
person be removed from a prison
to a secure mental health unit; or
(j) in the case of a person who is a
detainee under the Youth Justice
Act 1997, the Secretary (Youth
Justice) makes a direction under
section 134A(2) or (3) of that Act
that the person be removed from
a detention centre to a secure
mental health unit.
45
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(2) A forensic patient may be detained by the
controlling authority of a secure mental
health unit -
(a) if the patient is subject to a
restriction order, until the order is
discharged; or
(b) if the patient is subject to a
supervision order, for the period
allowed under section 31(6), (7)
or (8) of the Criminal Justice
(Mental Impairment) Act 1999; or
(c) if the patient is subject to an order
referred to in subsection (1)(c),
(d), (e), (f), (g) or (h), until the
order ends by reason of the terms
of the order or the provisions of
any Act; or
(d) if the patient is a prisoner
admitted to the secure mental
health unit by a direction referred
to in subsection (1)(i), until
whichever of the following events
first occurs:
(i) the end of the period
specified in the direction
or an agreement made
under section 36A(5) of
the Corrections Act 1997;
(ii) the end of the period of 48
hours, or such longer
period as agreed between
the Director and the Chief
Forensic Psychiatrist,
46
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
after the Chief Forensic
Psychiatrist requires the
Director to remove the
person from the secure
mental health unit under
section 36A(7) of the
Corrections Act 1997;
(iii) the end of the period of 48
hours after the Chief
Forensic Psychiatrist
determines under
section 72E(4) that it
would be appropriate for
the patient to be returned
to the custody of the
Director or any longer
period agreed under that
section;
(iv) the prisoner is released
from prison on parole
under the Corrections Act
1997;
(v) where the prisoner is a
detainee, within the
meaning of the
Corrections Act 1997, the
order remanding or
otherwise committing him
or her to prison ends;
(vi) the prisoner completes his
or her sentence of
imprisonment; or
(e) if the patient is a young prisoner
admitted to the secure mental
47
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
health unit by a direction referred
to in subsection (1)(j), until
whichever of the following events
first occurs:
(i) the end of the period
specified in the direction;
(ii) the end of the period of 48
hours, or such longer
period as agreed between
the Secretary (Youth
Justice) and the Chief
Forensic Psychiatrist,
after the Chief Forensic
Psychiatrist requires that
Secretary to remove the
young prisoner from the
secure mental health unit
under section 134A(5) of
the Youth Justice Act
1997;
(iii) the end of the period of 48
hours after the Chief
Forensic Psychiatrist
determines under
section 72E(4) that it
would be appropriate for
the young prisoner to be
returned to the custody of
the Secretary (Youth
Justice) or any longer
period agreed under that
section;
(iv) the young prisoner is
released from detention
48
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
on a supervised release
order under the Youth
Justice Act 1997;
(v) where the young prisoner
has not been sentenced for
the offence in respect of
which he or she is being
detained in custody, the
order remanding or
otherwise committing him
or her to a detention
centre ends;
(vi) the young prisoner
completes his or her
sentence of imprisonment.
72B. Admission of involuntary patients
(1) A person may be admitted to a secure
mental health unit otherwise than as a
forensic patient if -
(a) the person is an involuntary
patient in an approved hospital;
and
(b) the controlling authority of that
hospital determines that the
person should be transferred to a
secure mental health unit for the
protection of that person or other
patients in, and the staff of, that
hospital; and
(c) the Chief Forensic Psychiatrist is
satisfied that -
49
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(i) as a result of mental
illness the person poses a
serious and substantial
risk to others; and
(ii) a secure mental health
unit is the only
appropriate place
available to accommodate
the person in the
circumstances; and
(iii) adequate facilities and
staff exist at the secure
mental health unit for the
appropriate care and
treatment of the person.
(2) If a person is admitted to a secure mental
health unit under this section -
(a) that person is not a forensic
patient; and
(b) that person is not an involuntary
patient while in the secure mental
health unit, except as provided in
subsection (3), but becomes an
involuntary patient on his or her
transfer back to an approved
hospital; and
(c) except where this Act provides
otherwise or a contrary intention
appears, while that person is
admitted to the secure mental
health unit this Act applies to that
person as if he or she were a
50
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
forensic patient who is not
subject to a restriction order.
(3) A person admitted to a secure mental
health unit under this section remains an
involuntary patient for the purposes of
Division 2 of Part 12 and is not to be
treated as a forensic patient for the
purposes of section 73G.
(4) Before or as soon as practicable after the
admission of an involuntary patient to a
secure mental health unit -
(a) the Chief Forensic Psychiatrist is
to notify the Mental Health
Tribunal and the person
responsible for the patient of the
admission; and
(b) the Chief Forensic Psychiatrist
and the controlling authorities of
the approved hospital and secure
mental health unit concerned are
to determine, jointly, the period
for which the patient may be
detained in the secure mental
health unit.
(5) The Chief Forensic Psychiatrist and the
controlling authorities of the approved
hospital and secure mental health unit
concerned, jointly, may extend the period
determined under subsection (4).
(6) If at any time the Chief Forensic
Psychiatrist is satisfied that a patient
admitted to a secure mental health unit
under this section no longer meets the
51
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
requirements for that admission, the
Chief Forensic Psychiatrist is to require
the controlling authorities of the
approved hospital and secure mental
health unit concerned to return the
patient to the approved hospital.
(7) A patient admitted under this section
may be detained by the controlling
authority of a secure mental health unit -
(a) for the period determined under
subsection (4) or that period as
extended under subsection (5) or
as shortened by the Mental
Health Tribunal under
section 72C(3)(b); or
(b) if the Chief Forensic Psychiatrist
has required the return of the
patient to an approved hospital,
until 24 hours after the
requirement was made, or such
longer period as jointly
determined by the Chief Forensic
Psychiatrist and the controlling
authorities of the approved
hospital and secure mental health
unit concerned; or
(c) if the Mental Health Tribunal
under section 72C directs that the
patient is to be returned to the
approved hospital, until 24 hours
after the requirement was made,
or such longer period as
authorised by the Mental Health
Tribunal.
52
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
72C. Review of admission under section 72B
(1) The Mental Health Tribunal is to review
the admission of an involuntary patient to
a secure mental health unit under
section 72B within 3 days after being
notified of that admission.
(2) The Mental Health Tribunal may conduct
a review under this section despite its
failure or inability to notify the person
responsible for the involuntary patient as
required by section 54(1)(b).
(3) On reviewing the admission of an
involuntary patient to a secure mental
health unit, the Mental Health Tribunal
may -
(a) confirm the admission and the
period for which the patient can
be detained in the secure mental
health unit determined by the
Chief Forensic Psychiatrist and
the controlling authorities of the
approved hospital and secure
mental health unit concerned; or
(b) confirm the admission but shorten
that period; or
(c) direct that the patient be returned
to the approved hospital.
(4) The Mental Health Tribunal is to notify
the Chief Forensic Psychiatrist, the
controlling authorities of the approved
hospital and secure mental health unit
concerned and the person responsible for
53
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
the patient of its decision under
subsection (3) as soon as practicable.
72D. Notifying next of kin, &c., of admission
(1) On the admission of a person to a secure
mental health unit as a patient under
section 72A or 72B, the controlling
authority of the secure mental health unit
may notify one or more of the following
persons of that admission unless the
patient has objected to the notification:
(a) the person responsible for the
patient;
(b) the next of kin of the patient;
(c) a member of the family of the
patient;
(d) a person with whom the patient
has had a longstanding
relationship.
(2) Before notifying a person under
subsection (1) of the admission of a
patient, the controlling authority is to
ensure that the patient has been consulted
and given the opportunity to object to the
notification unless it or an approved
medical practitioner is of the opinion that
the patient is incapable of understanding
the purpose and meaning of the
consultation.
(3) For the purposes of subsection (1)(d), the
question of whether a person has had a
54
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
longstanding relationship with a patient
is to be determined by the controlling
authority.
72E. Right of certain forensic patients to request
return to prison
(1) In this section -
"voluntary forensic patient" means a
forensic patient referred to in
section 72A(1)(i) or (j) if the
direction under section 36A(2) or
(3) of the Corrections Act 1997 or
section 134A(2) or (3) of the
Youth Justice Act 1997 that
removed the patient to the secure
mental health unit was made at
the request of the patient.
(2) At any time, a voluntary forensic patient
may request the Chief Forensic
Psychiatrist, in writing, that he or she be
returned to the custody of the Director or
the Secretary (Youth Justice).
(3) On receipt of the request of a voluntary
forensic patient, the Chief Forensic
Psychiatrist is to ensure that the patient is
assessed by an approved medical
practitioner for the purpose of
determining whether it would be suitable
for the patient to be returned to the
custody of the Director or the Secretary
(Youth Justice).
55
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(4) If the Chief Forensic Psychiatrist, after
considering the assessment of the
approved medical practitioner,
determines that it would be appropriate
to return the voluntary forensic patient to
the custody of the Director or the
Secretary (Youth Justice) -
(a) the Chief Forensic Psychiatrist, as
soon as practicable, is to require
the Director or the Secretary
(Youth Justice) to remove the
patient from the secure mental
health unit; and
(b) the patient is to be so removed
from the secure mental health
unit and transferred to the
custody of the Director or the
Secretary (Youth Justice) within
48 hours after the requirement is
made under paragraph (a) or such
longer period as agreed between
the Chief Forensic Psychiatrist
and the Director or that Secretary.
(5) If the Chief Forensic Psychiatrist
determines that it would not be
appropriate to return the voluntary
forensic patient to a prison, the patient is
taken not to be a voluntary forensic
patient from the time that determination
is made.
(6) If the Chief Forensic Psychiatrist
determines that it would not be
appropriate to return the voluntary
forensic patient to a prison, the patient
56
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
may apply within 7 days to the Forensic
Tribunal for a review of the
determination.
(7) On the review of a determination of the
Chief Forensic Psychiatrist, the Forensic
Tribunal may confirm the determination
or revoke the determination.
(8) If the Forensic Tribunal revokes the
determination of the Chief Forensic
Psychiatrist, subsection (4) applies as if
the Chief Forensic Psychiatrist had
determined that it would be appropriate
to return the voluntary forensic patient to
the custody of the Director or the
Secretary (Youth Justice).
Division 2 - Medical treatment of forensic patients
72F. Interpretation of "medical treatment"
In this Division -
"medical treatment" does not
include -
(a) any treatment that is
intended, or is reasonably
likely, to have the effect
of rendering the forensic
patient permanently
infertile; or
(b) termination of pregnancy;
or
(c) any removal of non-
regenerative tissue for the
57
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
purposes of
transplantation; or
(d) any other medical or
dental treatment that is
declared by regulations in
force under the
Guardianship and
Administration Act 1995
to be special treatment for
the purposes of Part 6 of
that Act;
"non-regenerative tissue" means
tissue that, after injury or
removal, is not replaced in the
body of a living person by natural
processes of growth or repair.
72G. Medical treatment generally
(1) In this section -
"disability" has the same meaning as
in the Guardianship and
Administration Act 1995.
(2) Medical treatment may be administered
to a forensic patient who is not incapable
of giving informed consent by reason of
a disability and who has attained the age
of 18 years in any of the following
situations:
(a) the forensic patient has given
informed consent to the
administration of the treatment;
58
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(b) the administration of the
treatment to the forensic patient is
authorised under section 72H, 72I
or 72J.
(3) Medical treatment may be administered
to a forensic patient who is not incapable
of giving informed consent by reason of
a disability and who is under the age of
18 years in any of the following
situations:
(a) the forensic patient has given
informed consent to the
administration of the treatment;
(b) the administration of the
treatment to the forensic patient is
authorised under section 72H, 72I
or 72J.
(4) Medical treatment may be administered
to a forensic patient who is incapable of
giving informed consent by reason of a
disability, regardless of the age of the
forensic patient, in any of the following
situations:
(a) a person responsible for the
forensic patient under the
Guardianship and Administration
Act 1995 has consented to the
treatment;
(b) the administration of the
treatment is otherwise authorised
by or under Part 6 of that Act;
59
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(c) the administration of the
treatment to the forensic patient is
authorised under section 72H, 72I
or 72J.
(5) Section 38 of the Guardianship and
Administration Act 1995 does not apply
in respect of the administration of
medical treatment authorised under this
Division.
(6) A reference in this Part to consent by a
forensic patient to the administration of
treatment or medical treatment means, in
relation to a forensic patient who has not
attained the age of 18 years -
(a) consent by the forensic patient if
he or she is capable of giving
informed consent; or
(b) consent by the parent of the
forensic patient if the forensic
patient is not capable of giving
informed consent for a reason
other than a disability; or
(c) consent by the Secretary if -
(i) the forensic patient is not
capable of giving
informed consent for a
reason other than a
disability; and
(ii) the whereabouts of the
parent of the forensic
patient is unable after
reasonable inquiry to be
60
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
ascertained, or the parent
has refused or failed to
consent, is likely to refuse
or fail to consent or has
withdrawn consent.
72H. Medical treatment for forensic patients who
do not consent in urgent circumstances
(1) In this section -
"disability" has the same meaning as
in the Guardianship and
Administration Act 1995.
(2) Medical treatment in respect of a mental
illness may be administered to a forensic
patient if -
(a) an approved medical practitioner
is of the opinion that -
(i) the forensic patient is
suffering a mental illness
that is amenable to the
treatment; and
(ii) either -
(A) the forensic
patient is
incapable by
reason of a
disability of
giving informed
consent; or
61
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(B) informed consent
to the treatment
has been refused
or not given, is
likely to be
refused or not
given or has been
withdrawn by the
forensic patient;
and
(iii) urgent treatment is
necessary in the best
interests of the forensic
patient or for the
protection of other
persons; and
(iv) delaying the treatment
until it can be authorised
under section 72I or 72J is
likely to be contrary to the
best interests of the
forensic patient or pose a
risk to the safety of other
persons; and
(b) the Chief Forensic Psychiatrist
has authorised the treatment.
(3) Medical treatment may be administered
to a forensic patient under subsection (2)
until the first of the following occurs:
(a) an approved medical practitioner
determines that the circumstances
specified in subsection (2) as
necessary for the administration
of the treatment no longer exist;
62
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(b) authorisation for the treatment is
given or refused by the Forensic
Tribunal or a member of the
Forensic Tribunal under
section 72I or 72J;
(c) the end of the period of 96 hours
commencing when the treatment
is first administered.
(4) Before medical treatment is administered
under subsection (2), an approved
medical practitioner is to make
reasonable effort to obtain informed
consent to the administration of the
treatment -
(a) from the forensic patient; or
(b) if the approved medical
practitioner is of the opinion that
the forensic patient is incapable
of giving informed consent by
reason of a disability, from any
person responsible who can give
the informed consent under
section 43 of the Guardianship
and Administration Act 1995 in
relation to the forensic patient.
(5) If medical treatment is administered
under subsection (2), the Chief Forensic
Psychiatrist is to notify the Forensic
Tribunal, in writing, of the following
details within 7 days after authorisation
for the treatment ends under
subsection (3) unless the continued
administration of the treatment is
authorised under section 72I or 72J:
63
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(a) the name of the forensic patient;
(b) the treatment administered;
(c) the length of time during which
the treatment was so
administered;
(d) the reasons for so administering
the treatment.
(6) A particular type or form of medical
treatment may not be administered to a
particular forensic patient under
subsection (2) if that type or form of
medical treatment has previously been
proposed in respect of, or administered
to, the patient under that subsection and -
(a) on an application under
section 72I(2), either the Forensic
Tribunal or a member of the
Forensic Tribunal has refused
under section 72I or 72J to
authorise the administration of
that treatment to the patient; or
(b) not less than 30 days has passed
since the previous administration
of that treatment to the patient
ended.
72I. Authorisation of medical treatment by
Forensic Tribunal
(1) In this section -
64
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
"disability" has the same meaning as
in the Guardianship and
Administration Act 1995.
(2) An approved medical practitioner, the
Chief Forensic Psychiatrist or the
controlling authority of a secure mental
health unit may apply in writing to the
Forensic Tribunal for an authorisation to
administer medical treatment in respect
of a mental illness to a forensic patient if
an approved medical practitioner is of the
opinion that the forensic patient is
suffering a mental illness that is
amenable to the treatment and -
(a) the forensic patient is incapable
of giving informed consent by
reason of a disability; or
(b) the forensic patient has refused or
failed to consent, is likely to
refuse or fail to consent or has
withdrawn consent to the
administration of the treatment.
(3) As soon as practicable after receiving an
application, the Forensic Tribunal is to
conduct a hearing in respect of the
application.
(4) If after conducting the hearing the
Forensic Tribunal is satisfied that -
(a) the forensic patient has a mental
illness that is amenable to
medical treatment; and
65
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) an approved medical practitioner
has recommended medical
treatment for the illness but -
(i) the forensic patient is
incapable of giving
informed consent to the
administration of the
treatment by reason of a
disability; or
(ii) the forensic patient has
refused or failed to
consent, is likely to refuse
or fail to consent or has
withdrawn consent to the
administration of the
treatment; and
(c) the treatment should be
administered to the forensic
patient in the best interests of the
forensic patient or for the
protection of other persons -
the Forensic Tribunal may authorise the
administration of the medical treatment
to the forensic patient during the period,
and subject to any conditions, specified
in the authorisation.
(5) If after conducting the hearing the
Forensic Tribunal is not satisfied of the
matters specified in subsection (4), the
Forensic Tribunal must refuse to
authorise the administration of the
medical treatment to the forensic patient.
66
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
72J. Interim authorisation
(1) A member of the Forensic Tribunal may
authorise the administration of medical
treatment in respect of a mental illness to
a forensic patient if -
(a) an application for an
authorisation of the medical
treatment has been made to the
Forensic Tribunal under
section 72I(2); and
(b) the member considers that the
treatment should be administered
to the forensic patient in the best
interests of the forensic patient or
for the protection of other
persons; and
(c) the member considers that the
delay in administering the
treatment that would occur while
awaiting the decision of the
Forensic Tribunal under
section 72I should he or she not
make the authorisation would be
detrimental to the best interests of
the forensic patient or would
endanger the safety of other
persons.
(2) The member of the Forensic Tribunal
may make the decisions under
subsection (1)(b) and (c) on the basis of
the application alone and without further
investigation.
67
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(3) If the member of the Forensic Tribunal is
not satisfied of the matters specified in
subsection (1), the member must refuse
to authorise the administration of the
medical treatment to the forensic patient.
(4) An authorisation under subsection (1) is
to be communicated to the applicant and
the Chief Forensic Psychiatrist by any
means the member of the Forensic
Tribunal considers appropriate but, if the
communication is not in writing, the
member is to confirm it in writing as
soon as practicable.
(5) An authorisation under subsection (1) has
effect until the application made under
section 72I(2) is determined by the
Forensic Tribunal, unless sooner
revoked.
(6) The member of the Forensic Tribunal
who authorised the administration of
medical treatment to the forensic patient
under subsection (1) or the Forensic
Tribunal may revoke or amend the
authorisation at any time.
72K. Right to second opinion
(1) In this section -
"first medical practitioner" means
the medical practitioner referred
to in subsection (2) who is
administering or intends to
68
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
administer medical treatment to a
forensic patient;
"original treatment" means the
medical treatment referred to in
subsection (2) that the first
medical practitioner is
administering or intends to
administer.
(2) If a medical practitioner administers or
intends to administer medical treatment
to a forensic patient and the
administration of that treatment -
(a) is not authorised by the Forensic
Tribunal under section 72I; or
(b) is not authorised by a member of
the Forensic Tribunal under
section 72J -
the forensic patient, or another person
who is authorised to consent to the
administration of medical treatment to
the forensic patient, may request that
another medical practitioner give an
opinion in respect of the necessity for
and appropriateness of the treatment.
(3) On receipt of a request for a second
opinion under subsection (2), the medical
practitioner is to notify the Chief
Forensic Psychiatrist of that request as
soon as practicable.
(4) As soon as practicable after a request for
a second opinion under subsection (2) is
made, the Chief Forensic Psychiatrist
69
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
must arrange for and facilitate the
provision of that second opinion to the
forensic patient by a medical practitioner,
or other person, approved by the Forensic
Tribunal for the purpose of giving such
second opinions.
(5) If -
(a) the second opinion is that -
(i) the original treatment is
unnecessary or
inappropriate; or
(ii) another medical treatment
would be equally or more
suitable; and
(b) the first medical practitioner
remains of the belief that the
original treatment should be
administered to the forensic
patient; and
(c) the Chief Forensic Psychiatrist
agrees that the original treatment
should be administered to the
forensic patient -
the Chief Forensic Psychiatrist is to
apply to the Forensic Tribunal under
section 72I for an authorisation to
administer the original treatment to the
forensic patient and the original
treatment is not to be administered to the
forensic patient unless authorised under
that section or section 72J.
70
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(6) A forensic patient is not to be taken to
have refused or failed to consent to
medical treatment if he or she has
requested a second opinion from a
medical practitioner under subsection (2)
and either -
(a) is awaiting that second opinion;
or
(b) has refused to consent to the
treatment because that second
opinion recommended that the
treatment was unnecessary or
inappropriate or that another
medical treatment was equally or
more suitable; or
(c) has consented to an alternative
treatment proposed in that second
opinion.
(7) Despite subsection (6) -
(a) if the original treatment is for a
mental illness, section 72H
continues to apply in relation to
the administration of the original
treatment to the forensic patient
in the circumstances specified in
that section; and
(b) if the original treatment is for a
medical condition other than a
mental illness, the original
treatment may be administered to
the forensic patient if a medical
practitioner considers it
necessary -
71
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(i) to save the patient's life;
or
(ii) to prevent serious damage
to the patient's health; or
(iii) except in the case of
special treatment within
the meaning of the
Guardianship and
Administration Act 1995,
to prevent the patient
from suffering or
continuing to suffer
significant pain or
distress.
Division 3 - Non-medical treatment of forensic patients
Subdivision 1 - Restraint and seclusion
72L. Physical restraint
(1) A forensic patient may be placed under
bodily restraint only as permitted under
this section.
(2) A forensic patient may be placed under
bodily restraint if the restraint -
(a) is necessary -
(i) for medical treatment of
the patient; or
(ii) to prevent injury to the
patient or to other
persons; or
72
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(iii) to prevent the patient
from destroying or
damaging property; or
(iv) to prevent the patient
from escaping from the
custody of the controlling
authority of the secure
mental health unit or
another person who has
the custody of the forensic
patient under an order of a
court; or
(v) to maintain order in, and
the security of, the secure
mental health unit in
which the patient is
situated; or
(vi) for any other purpose
specified in guidelines
issued by the Forensic
Tribunal; and
(b) is authorised -
(i) by a medical practitioner
or an approved
psychiatric nurse for a
period of less than 4
hours; or
(ii) by guidelines issued by
the Forensic Tribunal; or
(iii) by standing orders issued
by the Chief Forensic
Psychiatrist; and
73
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(c) is applied for no longer than
authorised as specified by the
medical practitioner or approved
psychiatric nurse referred to in
paragraph (b) or as otherwise
authorised by guidelines issued
by the Forensic Tribunal or
standing orders issued by the
Chief Forensic Psychiatrist; and
(d) is applied in accordance with any
guidelines issued by the Forensic
Tribunal.
72M. Use of force
A medical practitioner, an authorised
person, another person at a secure mental
health unit, a person who has the custody
of the forensic patient under an order of a
court and a person assisting such medical
practitioner, authorised person, other
person or person having such custody
may use such force as is reasonable in
the circumstances for -
(a) the purpose of preventing injury
to the forensic patient or to other
persons or preventing the forensic
patient from destroying or
damaging property; or
(b) the purpose of placing a forensic
patient under bodily restraint; or
(c) the purpose of preventing a
forensic patient from escaping
74
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
from the custody of the
controlling authority of a secure
mental health unit or another
person who has the custody of the
forensic patient under an order of
a court; or
(d) the purpose of administering
medical treatment to the forensic
patient; or
(e) any other purpose specified in
guidelines issued by the Forensic
Tribunal or standing orders issued
by the Chief Forensic
Psychiatrist.
72N. Seclusion of forensic patients
(1) A forensic patient may be kept in
seclusion only if -
(a) the seclusion is necessary -
(i) for medical treatment of
the patient; or
(ii) to prevent injury to the
patient or to other
persons; or
(iii) to prevent the patient
from destroying or
damaging property; or
(iv) to ensure that the patient
does not escape from the
custody of the controlling
75
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
authority of the secure
mental health unit or
another person who has
custody of the patient
under an order of a court;
or
(v) to maintain order in, and
the security of, the secure
mental health unit in
which the patient is
situated; and
(b) the seclusion is authorised by a
medical practitioner or an
approved psychiatric nurse, by
guidelines issued by the Forensic
Tribunal or by standing orders
issued by the Chief Forensic
Psychiatrist; and
(c) the patient is kept in seclusion for
no longer than authorised; and
(d) the seclusion is in accordance
with any guidelines issued by the
Forensic Tribunal.
(2) If a patient is kept in seclusion -
(a) the patient must -
(i) be visited by a nurse who
is registered under the
Nursing Act 1995 at
intervals of not more than
15 minutes or in
accordance with
76
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
guidelines issued by the
Forensic Tribunal; and
(ii) be examined at intervals
of not more than 4 hours
by a medical practitioner
or an approved
psychiatric nurse; and
(b) if the patient is kept in seclusion
for more than 7 hours -
(i) that portion of the
seclusion exceeding 7
hours must be authorised
by the Chief Forensic
Psychiatrist; and
(ii) the patient must be
examined at least once
every 12 hours by a
medical practitioner in
addition to the
examinations required by
paragraph (a); and
(c) bedding and clothing that is
appropriate in the circumstances
must be provided; and
(d) food and drink must be provided
at the appropriate times; and
(e) adequate toilet arrangements
must be made for the patient.
77
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
72O. Monthly reports on bodily restraint and
seclusion
(1) Within 3 days after the end of each
month, the Chief Forensic Psychiatrist
must send to the Forensic Tribunal a
report on the use of bodily restraint and
seclusion on forensic patients in each
secure mental health unit during that
month.
(2) The report is to be in a form approved by
the chairperson of the Forensic Tribunal.
(3) For each case of bodily restraint the
report must specify -
(a) the name of the forensic patient;
and
(b) the form of restraint used; and
(c) the reasons for the restraint; and
(d) the name of the person who
authorised the use of restraint;
and
(e) the period for which the forensic
patient was kept under bodily
restraint.
(4) For each case of seclusion the report
must specify -
(a) the name of the forensic patient;
and
(b) the place of seclusion; and
78
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(c) the reasons for the seclusion; and
(d) the name of the person who
authorised the seclusion of the
forensic patient; and
(e) the period for which the forensic
patient was kept in seclusion.
Subdivision 2 - Leave of absence
72P. Leave of absence for forensic patients
generally
(1) This section applies to a forensic patient
other than a forensic patient who is
subject to a restriction order.
(2) This section does not apply in relation to
the attendance of a forensic patient at a
court.
(3) Any of the following persons may apply
to the Chief Forensic Psychiatrist for
leave of absence for a forensic patient for
personal reasons:
(a) the forensic patient;
(b) a person responsible for the
forensic patient;
(c) a relative or close friend of the
forensic patient;
(d) any other person who is granted
leave to apply by the Chief
Forensic Psychiatrist.
79
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(4) Without limiting the personal reasons for
which an application for leave of absence
for a forensic patient may be made, those
reasons may include -
(a) visiting a sick or dying relative or
other person; and
(b) attendance at the funeral of a
relative or other person; and
(c) attendance at a wedding, birth or
graduation of a relative or other
person; and
(d) attendance at an occasion of
family importance; and
(e) if the person is an Aboriginal
person within the meaning of the
Aboriginal Lands Act 1995,
attendance at an event of special
cultural or spiritual significance;
and
(f) attendance at a religious event or
service.
(5) The approved medical practitioner
responsible for the medical treatment of a
forensic patient may apply to the Chief
Forensic Psychiatrist for leave of absence
for the forensic patient for any of the
following purposes:
(a) the personal reasons of the
forensic patient;
80
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(b) the rehabilitation or reintegration
into the community of the
forensic patient;
(c) any other purpose the approved
medical practitioner considers
necessary or appropriate.
(6) An application for leave of absence for a
forensic patient may be made in person,
in writing, by telephone, facsimile
machine or email or by any other means
of communication.
(7) On receipt of an application for leave of
absence for a forensic patient, the Chief
Forensic Psychiatrist -
(a) is to request the Secretary
(Corrections) to search the
Victims Register and notify each
victim registered in relation to the
forensic patient in that Register of
the application and of the
victim's right to make written
submissions in respect of the
application unless it is not
practicable to notify such a victim
in the circumstances; and
(b) if the forensic patient is also a
prisoner, is to notify the Director
or the Secretary (Youth Justice)
of the application and of his or
her right to make written
submissions in respect of the
application; and
81
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(c) is to notify any member of the
forensic patient's family that the
Chief Forensic Psychiatrist
considers should be notified of
the application and of the
member's right to make written
submissions in respect of the
application; and
(d) after considering any written
submissions made by persons
notified under this subsection,
grant or refuse to grant leave of
absence to the forensic patient.
(8) If the forensic patient is serving a
sentence of detention within the meaning
of the Youth Justice Act 1997, leave of
absence may be granted only if the
Secretary (Youth Justice) consents to it.
(9) On granting a leave of absence under this
section, the Chief Forensic Psychiatrist
must -
(a) record, in writing, the terms of
the leave of absence, including
any conditions on which the leave
of absence is granted; and
(b) provide a copy of the record to
the forensic patient and the
controlling authority of the secure
mental health unit.
(10) Leave of absence may only be granted
for leave within Tasmania.
(11) Leave of absence may be granted -
82
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(a) for a particular period or for a
particular purpose, or both; and
(b) subject to any conditions the
Chief Forensic Psychiatrist
considers necessary in the
interests of the forensic patient or
for the protection of other
persons; and
(c) by any means of verbal or written
communication, including by
telephone, facsimile machine and
email.
(12) If leave of absence is granted for a
particular purpose without specifying a
particular period for that leave of
absence, the approved medical
practitioner responsible for the treatment
of the forensic patient in the secure
mental health unit may determine the
period or periods for which the forensic
patient may be absent from the secure
mental health unit on leave of absence
for that particular purpose.
(13) If leave of absence is granted for a
particular period, the Chief Forensic
Psychiatrist may extend that period at
any time by notice in writing provided to
the forensic patient.
(14) The leave of absence of a forensic patient
who is a young prisoner may only be
extended under subsection (13) if the
Secretary (Youth Justice) consents to it.
83
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(15) Without limiting the conditions that may
be imposed in respect of leave of
absence, a condition may provide that the
forensic patient is to be in the care and
custody of a person specified in the
condition during that leave of absence.
(16) The Chief Forensic Psychiatrist may
amend the conditions of a leave of
absence at any time by notice in writing
provided to the forensic patient.
(17) The conditions of a leave of absence of a
forensic patient who is a young prisoner
may only be amended under
subsection (16) if the Secretary (Youth
Justice) consents to it.
(18) For the purposes of subsection (16), the
conditions of a leave of absence may be
amended by -
(a) adding a new condition, whether
or not the leave of absence is
already subject to conditions; or
(b) omitting a condition; or
(c) omitting a condition and
substituting another condition; or
(d) inserting matter in a condition; or
(e) omitting matter from a condition;
or
(f) omitting matter from a condition
and substituting other matter.
84
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(19) The Secretary, the Chief Forensic
Psychiatrist, the controlling authority of
the secure mental health unit, the
approved medical practitioner
responsible for the medical treatment of
the forensic patient in the secure mental
health unit or another approved medical
practitioner may cancel a leave of
absence granted under this section at any
time in writing provided to the forensic
patient if the Secretary, Chief Forensic
Psychiatrist, controlling authority or
medical practitioner believes that there is
a significant risk of harm to the patient or
to other persons if the leave of absence is
not cancelled.
(20) If the leave of absence of a forensic
patient is cancelled, an authorised officer
or police officer may apprehend the
forensic patient and return him or her to
the secure mental health unit and, for that
purpose may -
(a) enter, without warrant, any
premises where the authorised
officer or police officer suspects
the forensic patient may be; and
(b) be accompanied by such
assistants as the authorised officer
or police officer considers
appropriate; and
(c) use such force and bodily
restraint as the authorised officer
or police officer considers
reasonable in the circumstances.
85
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
72Q. Leave of absence for forensic patients on
restriction orders
(1) This section applies to a forensic patient
who is subject to a restriction order.
(2) This section does not apply in relation to
the attendance of a forensic patient at a
court.
(3) Any of the following persons may apply,
in writing, to the Forensic Tribunal for
leave of absence for a forensic patient for
personal reasons:
(a) the forensic patient;
(b) a person responsible for the
forensic patient;
(c) a relative or close friend of the
forensic patient;
(d) any other person who is granted
leave to apply by the Forensic
Tribunal.
(4) Without limiting the personal reasons for
which an application for leave of absence
for a forensic patient may be made, those
reasons may include -
(a) visiting a sick or dying relative or
other person; and
(b) attendance at the funeral of a
relative or other person; and
86
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(c) attendance at a wedding, birth or
graduation of a relative or other
person; and
(d) attendance at an occasion of
family importance; and
(e) if the person is an Aboriginal
person within the meaning of the
Aboriginal Lands Act 1995,
attendance at an event of special
cultural or spiritual significance;
and
(f) attendance at a religious event or
service.
(5) The Chief Forensic Psychiatrist may
apply to the Forensic Tribunal for leave
of absence for a forensic patient for any
of the following purposes:
(a) the personal reasons of the
forensic patient;
(b) the rehabilitation or reintegration
into the community of the
forensic patient;
(c) any other purpose the Chief
Forensic Psychiatrist considers
necessary or appropriate.
(6) On receipt of an application for leave of
absence for a forensic patient, the
Forensic Tribunal -
(a) is to request the Secretary
(Corrections) to search the
Victims Register and notify any
87
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
victim registered in relation to the
forensic patient in that Register of
the application and of the
victim's right to make written
submissions in respect of the
application unless it is not
practicable to notify such a victim
in the circumstances; and
(b) is to notify any member of the
forensic patient's family that the
Forensic Tribunal considers
should be notified of the
application and of the member's
to make written submissions in
respect of the application; and
(c) after considering -
(i) any written submissions
made by any such victims
or family members; and
(ii) any submissions made by
the forensic patient; and
(iii) any submissions made by
the Chief Forensic
Psychiatrist, an approved
medical practitioner or the
controlling authority of
the secure mental health
unit; and
(iv) any other written
submissions the Forensic
Tribunal considers
relevant -
88
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
grant or refuse to grant leave of
absence to the forensic patient.
(7) On granting a leave of absence under this
section, the Forensic Tribunal must -
(a) record, in writing, the terms of
the leave of absence, including
any conditions on which the leave
of absence is granted; and
(b) provide a copy of the record to
the forensic patient and the
controlling authority of the secure
mental health unit.
(8) Leave of absence may only be granted
for leave within Tasmania.
(9) Leave of absence may be granted -
(a) for a particular period or for a
particular purpose, or both; and
(b) subject to any conditions the
Forensic Tribunal considers
necessary in the interests of the
forensic patient or for the
protection of other persons.
(10) If a leave of absence is granted for a
particular period, whether or not for a
particular purpose, the Forensic Tribunal
may extend that period by notice in
writing provided to the forensic patient.
(11) If leave of absence is granted for a
particular purpose without specifying a
particular period for that leave of
89
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
absence, the Chief Forensic Psychiatrist
may -
(a) determine the period or periods
during which the forensic patient
may be absent from the secure
mental health unit on leave of
absence for that particular
purpose; and
(b) extend that period or any of those
periods or determine further
periods during which the forensic
patient may be absent from the
secure mental health unit on leave
of absence for that particular
purpose.
(12) The Chief Forensic Psychiatrist is to
notify the forensic patient, in writing, of
any determination made under
subsection (11).
(13) Without limiting the conditions that may
be imposed in respect of leave of
absence, a condition may provide that the
forensic patient is to be in the care and
custody of a person specified in the
condition during that leave of absence.
(14) The Forensic Tribunal may amend the
conditions of a leave of absence at any
time by notice in writing provided to the
forensic patient.
(15) For the purposes of subsection (14), the
conditions of a leave of absence may be
amended by -
90
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(a) adding a new condition, whether
or not the leave of absence is
already subject to conditions; or
(b) omitting a condition; or
(c) omitting a condition and
substituting another condition; or
(d) inserting matter in a condition; or
(e) omitting matter from a condition;
or
(f) omitting matter from a condition
and substituting other matter.
(16) The Forensic Tribunal, the Secretary, the
Chief Forensic Psychiatrist, the
controlling authority of the secure mental
health unit, the approved medical
practitioner responsible for the medical
treatment of the forensic patient in the
secure mental health unit or another
approved medical practitioner may
cancel a leave of absence granted under
this section at any time in writing
provided to the forensic patient if the
Forensic Tribunal, Secretary, controlling
authority or approved medical
practitioner considers that there is a
significant risk of harm to the forensic
patient or to other persons if the leave of
absence is not cancelled.
(17) If the Secretary, the Chief Forensic
Psychiatrist, the controlling authority of
the secure mental health unit, the
approved medical practitioner
91
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
responsible for the medical treatment of
the forensic patient in the secure mental
health unit or another approved medical
practitioner cancels a leave of absence,
he or she is to notify the Forensic
Tribunal, in writing, of the cancellation.
(18) If the leave of absence of a forensic
patient is cancelled, an authorised officer
or police officer may apprehend the
forensic patient and return him or her to
the secure mental health unit and, for that
purpose may -
(a) enter, without warrant, any
premises where the authorised
officer or police officer suspects
the forensic patient may be; and
(b) be accompanied by such
assistants as the authorised officer
or police officer considers
appropriate; and
(c) use such force and bodily
restraint as the authorised officer
or police officer considers
reasonable in the circumstances.
72R. Notification of victims
(1) If under section 72P or 72Q the Forensic
Tribunal, the Secretary, the Chief
Forensic Psychiatrist, the controlling
authority of the secure mental health unit
or an approved medical practitioner
grants, extends or cancels a leave of
92
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
absence or amends the conditions to
which a leave of absence is subject, that
person must request the Secretary
(Corrections) to notify each victim
registered in the Victims Register in
relation to the forensic patient, in writing,
of the grant, extension, cancellation or
amendment as soon as practicable.
(2) Following the grant of leave of absence
or the amendment of the conditions to
which a leave of absence is subject, the
forensic patient must not be released
from the secure mental health unit on the
leave of absence until each victim
registered in the Victims Register in
relation to the forensic patient has been
notified of the grant or amendment
except where it is not practicable in the
circumstances to do so.
Subdivision 3 - Visits, telephone calls and mail
72S. Interpretation of Subdivision
In this Subdivision -
"exempt visitor" means -
(a) a judge; and
(b) a magistrate; and
(c) the Ombudsman or an officer of
the Ombudsman; and
(d) the Public Guardian; and
(e) a legal practitioner; and
93
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(f) a member of the Forensic
Tribunal; and
(g) a person specified as an exempt
visitor for the purposes of this
Subdivision in standing orders
issued by the Chief Forensic
Psychiatrist; and
(h) a prescribed person.
72T. Visits
(1) A person may enter a secure mental
health unit as a visitor at any reasonable
time, and at reasonable intervals, as
determined by the controlling authority
or Chief Forensic Psychiatrist.
(2) Despite subsection (1), the controlling
authority, the Chief Forensic Psychiatrist
or an authorised person may refuse to
allow a person, other than an exempt
visitor, to enter the secure mental health
unit if it, he or she considers that -
(a) the visit would be detrimental to
the health and welfare of a
forensic patient or his or her
treatment; or
(b) the visit would pose a risk of
harm or distress to a forensic
patient or any other person in the
secure mental health unit; or
(c) if the visit is for the purpose of
visiting a forensic patient, the
94
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
Chief Forensic Psychiatrist or an
approved medical practitioner is
of the opinion that the forensic
patient is seriously or acutely
unwell; or
(d) the visit would or might endanger
the good order or security of the
secure mental health unit; or
(e) the visit is or might be for an
illegal purpose.
(3) The controlling authority, the Chief
Forensic Psychiatrist or an authorised
person may direct a person who has been
refused admission to the secure mental
health unit under subsection (2) to leave
the secure mental health unit or the
immediate vicinity of the secure mental
health unit immediately.
(4) The controlling authority, the Chief
Forensic Psychiatrist or an authorised
person may give to a visitor such
directions as are necessary for the
management, good order and security of
the secure mental health unit.
(5) A visitor must obey a direction given
under subsection (3) or (4).
Penalty: Fine not exceeding 5 penalty
units.
(6) If a person refuses or fails to comply
with a direction under subsection (3) or
(4) -
95
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(a) an authorised person, with such
assistants and using such force as
he or she considers appropriate in
the circumstances, may remove
the person from the secure mental
health unit or detain the person
for such time as is necessary for
the person to be arrested by a
police officer under
paragraph (b); and
(b) the person may be arrested by a
police officer without warrant.
72U. Visitors to give information
(1) A person who wishes to enter as a visitor
a secure mental health unit in which a
forensic patient is situated must, if asked
by the controlling authority, the Chief
Forensic Psychiatrist or an authorised
person, provide to the controlling
authority, Chief Forensic Psychiatrist or
authorised person -
(a) proof of the person's identity,
including fingerprints and other
biometric data approved by
standing order issued by the
Chief Forensic Psychiatrist; and
(b) information as to the person's
address, occupation, age and
relationship to the forensic patient
to be visited; and
96
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(c) information as to the purpose of
the visit.
(2) A person must not, under subsection (1),
knowingly provide to the controlling
authority, Chief Forensic Psychiatrist or
authorised person an identity or
information that is false or misleading.
Penalty: Fine not exceeding 5 penalty
units.
72V. Visits by police
(1) If a police officer for the purpose of
visiting a forensic patient enters or
wishes to enter a secure mental health
unit, the forensic patient -
(a) may refuse that visit; and
(b) is not required to answer
questions asked by the police
officer during that visit; and
(c) at his or her request, may have
present at, or observing with or
without sound, any part of that
visit a medical practitioner,
member of staff of the secure
mental health unit or legal
practitioner.
(2) If a police officer proposes to visit a
forensic patient, the controlling authority
is to ensure that the forensic patient is
advised of his or her rights under this
section.
97
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
72W. Refusal of visitor
A forensic patient may refuse a visit from
a visitor.
72X. Visit may be terminated
(1) The controlling authority, the Chief
Forensic Psychiatrist or an authorised
person may direct a person, other than an
exempt visitor, who has entered a secure
mental health unit for the purposes of
visiting a forensic patient to leave the
secure mental health unit or part of the
secure mental health unit immediately if
it, he or she believes on reasonable
grounds that the visit to the forensic
patient -
(a) is, or would be, detrimental to the
health and welfare of the forensic
patient or his or her treatment; or
(b) is posing, or would pose, a risk of
harm to the forensic patient or
any other person in the secure
mental health unit; or
(c) is not, or would not be,
appropriate because the Chief
Forensic Psychiatrist or an
approved medical practitioner is
of the opinion that the forensic
patient is seriously or acutely
unwell; or
(d) is endangering, or would or might
endanger, the good order or
98
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
security of the secure mental
health unit; or
(e) is, or would or might be, for an
illegal purpose.
(2) A person must comply with a direction
under subsection (1).
Penalty: Fine not exceeding 5 penalty
units.
(3) If a person refuses or fails to comply
with a direction under subsection (1) -
(a) an authorised person, with such
assistants and using such force as
he or she considers appropriate in
the circumstances, may remove
the person from the secure mental
health unit or detain the person
for such time as is necessary for
the person to be arrested by a
police officer under
paragraph (b); and
(b) the person may be arrested by a
police officer without warrant.
(4) The controlling authority or the Chief
Forensic Psychiatrist may request an
exempt visitor to leave the secure mental
health unit or part of a secure mental
health unit immediately if it, he or she
believes on reasonable grounds that the
visit to the forensic patient -
99
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(a) is, or would be, detrimental to the
health and welfare of the forensic
patient or his or her treatment; or
(b) is posing, or would pose, a risk of
harm to the forensic patient or
any other person in the secure
mental health unit; or
(c) is not, or would not be,
appropriate because the Chief
Forensic Psychiatrist or an
approved medical practitioner is
of the opinion that the forensic
patient is seriously or acutely
unwell; or
(d) is endangering, or would or might
endanger, the good order or
security of the secure mental
health unit; or
(e) is, or would or might be, for an
illegal purpose.
72Y. Formal searches
(1) In this section -
"formal search" means a search to
detect the presence of drugs,
weapons or articles which the
controlling authority does not
allow to be brought into the
secure mental health unit,
whether carried out personally or
by an electronic or mechanical
device.
100
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(2) A person who wishes to enter or remain
in a secure mental health unit as a visitor
must submit to a formal search if asked
by the controlling authority, the Chief
Forensic Psychiatrist or an authorised
person to do so.
(3) If a person refuses to submit to a formal
search when asked to do so under
subsection (2), the controlling authority,
the Chief Forensic Psychiatrist or an
authorised person may direct the person
to leave the secure mental health unit
immediately.
(4) A person must comply with a direction
under subsection (3).
Penalty: Fine not exceeding 5 penalty
units.
(5) If a person refuses or fails to comply
with a direction under subsection (3) -
(a) an authorised person, with such
assistants and using such force as
he or she considers appropriate in
the circumstances, may detain the
person for such time as is
necessary for the person to be
arrested by a police officer under
paragraph (b); and
(b) the person may be arrested by a
police officer without warrant.
101
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
72Z. Telephone calls
(1) In this section -
"exempt caller" means -
(a) a judge; and
(b) a magistrate; and
(c) the Ombudsman or an
officer of the
Ombudsman; and
(d) the Public Guardian; and
(e) a legal practitioner; and
(f) a member of the Forensic
Tribunal; and
(g) a person specified as an
exempt caller for the
purposes of this section in
standing orders issued by
the Chief Forensic
Psychiatrist; and
(h) a prescribed person;
"telephone call" means any
communication made by using a
telephone, radio or similar
electronic device, including a
communication consisting of a
text message or picture.
(2) A forensic patient has the right to receive
and make telephone calls at any
reasonable time, and at reasonable
102
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
intervals, as determined by the
controlling authority of the secure mental
health unit or the Chief Forensic
Psychiatrist.
(3) Despite subsection (2), the controlling
authority, the Chief Forensic Psychiatrist
or an authorised person may refuse to
allow the forensic patient to receive a
telephone call from, or make a telephone
call to, a person, other than an exempt
caller, if -
(a) it, he or she considers that -
(i) the call would be
detrimental to the health
and welfare of the
forensic patient or his or
her treatment; or
(ii) the call would or might
pose a risk of harm or
distress to the forensic
patient or any other
person in the secure
mental health unit; or
(iii) making or receiving the
call is not, or would not
be, appropriate because
the Chief Forensic
Psychiatrist or an
approved medical
practitioner is of the
opinion that the forensic
patient is seriously or
acutely unwell; or
103
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(iv) the call would or might
endanger the good order
or security of the secure
mental health unit; or
(v) the call would or might
cause harm, distress or
offence to the person
receiving the telephone
call; or
(vi) the call would or might be
for an illegal purpose; or
(b) the person to whom the telephone
call is or is to be made has
notified the Chief Forensic
Psychiatrist, the controlling
authority of the secure mental
health unit or the prison or
detention centre in which the
forensic patient was held before
becoming a forensic patient that
he or she does not wish to receive
telephone calls from the forensic
patient.
(4) If the controlling authority, the Chief
Forensic Psychiatrist or an authorised
person refuses to allow a forensic patient
to receive or make a telephone call, the
controlling authority, Chief Forensic
Psychiatrist or authorised person is to
provide written notice of that refusal and
the reasons for it to the Forensic Tribunal
within 7 days.
(5) If asked by the controlling authority of a
secure mental health unit, the Chief
104
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
Forensic Psychiatrist or an authorised
person to do so, a person who makes, or
wishes to make, a telephone call to a
forensic patient must provide to the
controlling authority, Chief Forensic
Psychiatrist or authorised person -
(a) proof of the person's identity; and
(b) information as to the person's
address, occupation, age and
relationship to the forensic patient
to be called; and
(c) information as to the purpose of
the call.
(6) A person must not, under subsection (5),
knowingly provide to the controlling
authority, Chief Forensic Psychiatrist or
authorised person an identity or
information that is false or misleading.
Penalty: Fine not exceeding 5 penalty
units.
(7) If a forensic patient makes a telephone
call or receives a telephone call made on
a reverse charges basis, the controlling
authority or an authorised person may
require the forensic patient to pay the
costs of the call.
73. Mail
(1) In this section -
"exempt correspondent" means -
105
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(a) a judge; and
(b) a magistrate; and
(c) a legal practitioner,
barrister or solicitor; and
(d) any court or any
commission, committee,
tribunal or other board
connected to the legal
process, or an officer of
any court or any such
commission, committee,
tribunal or other board;
and
(e) a medical practitioner,
another health provider or
a health service; and
(f) the Secretary, the
Secretary (Corrections)
and the Secretary (Youth
Justice); and
(g) the Chief Forensic
Psychiatrist; and
(h) the Health Complaints
Commissioner or an
officer of the Health
Complaints
Commissioner; and
(i) the Ombudsman or an
officer of the
Ombudsman; and
106
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(j) the Anti-Discrimination
Commissioner or an
officer of the Anti-
Discrimination
Commissioner; and
(k) the Office of the Public
Guardian or an officer of
that Office; and
(l) the Forensic Tribunal or a
member of the Forensic
Tribunal; and
(m) an official visitor; and
(n) the Ethics Committee
established under section
9 of the Disability
Services Act 1992 or a
member of the Ethics
Committee; and
(o) a statutory authority
connected to the legal
process or concerned with
the rights or treatment of
prisoners or patients in
hospitals or an officer of
such a statutory authority;
and
(p) a person specified as an
exempt correspondent in
guidelines issued by the
Forensic Tribunal; and
(q) a person specified as an
exempt correspondent in
107
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
standing orders issued by
the Chief Forensic
Psychiatrist; and
(r) a prescribed person;
"mail or email" includes a part of
mail or email.
(2) A forensic patient has the right to receive
and send mail and, if the facility is
provided at the secure mental health unit,
email at any reasonable time, and at
reasonable intervals, as determined by
the controlling authority of the secure
mental health unit.
(3) The controlling authority, the Chief
Forensic Psychiatrist or an authorised
person may require that any mail or
email sent to or by a forensic patient,
other than mail or email sent by or to an
exempt correspondent, be opened and
read by an authorised person.
(4) Despite subsection (2), the controlling
authority, the Chief Forensic Psychiatrist
or an authorised person may refuse to
allow the forensic patient to receive mail
or email from, or send mail or email to, a
person other than an exempt
correspondent if -
(a) it, he or she considers that -
(i) the mail or email would
be detrimental to the
health and welfare of the
108
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
forensic patient or his or
her treatment; or
(ii) the mail or email would
pose a risk of harm or
distress to the forensic
patient or any other
person in the secure
mental health unit; or
(iii) receiving or sending the
mail or email is not, or
would not be, appropriate
because the Chief
Forensic Psychiatrist or
an approved medical
practitioner is of the
opinion that the forensic
patient is seriously or
acutely unwell; or
(iv) the mail or email would
or might endanger the
good order or security of
the secure mental health
unit; or
(v) the mail or email would
or might cause harm,
distress or offence to the
person receiving the mail
or email or another
person; or
(vi) the mail or email would
or might be for an illegal
purpose; or
109
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) the person to whom the mail or
email is addressed has notified
the controlling authority of the
secure mental health unit, the
prison or detention centre in
which the forensic patient was
held before becoming a forensic
patient or the Chief Forensic
Psychiatrist that he or she does
not wish to receive mail or email
from the forensic patient.
(5) If the controlling authority, the Chief
Forensic Psychiatrist or an authorised
person refuses to allow a forensic patient
to receive or send any mail or email, the
controlling authority, Chief Forensic
Psychiatrist or authorised person is to
provide written notice of that refusal and
the reasons for it to the Forensic Tribunal
within 7 days.
(6) If a forensic patient sends mail or email
or receives mail or email for which a
charge or fee is payable by the sender or
recipient, the controlling authority or an
authorised person may require the
forensic patient to do so at his or her own
expense.
Subdivision 4 - Further matters relating to treatment of
forensic patients
73A. Further rights of forensic patients
(1) Every forensic patient has the following
rights:
110
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(a) the right to be provided with an
explanation of his or her mental
illness or disability and proposed
medical treatment and other
treatment for the illness or
disability;
(b) the right to be provided with food
that is adequate to maintain the
health and wellbeing of the
forensic patient;
(c) the right to be provided with
special dietary food if the Chief
Forensic Psychiatrist is satisfied
that such food is necessary for
medical reasons, on account of
the forensic patient's religious
beliefs or because the forensic
patient is a vegetarian;
(d) the right to be provided with
basic clothing that is suitable for
the climate and adequate to
maintain the health of the
forensic patient;
(e) the right to wear suitable clothing
owned by the forensic patient;
(f) the right to have access to
medical care and treatment and
medical advice reasonably
necessary for the preservation of
health;
(g) the right to have access to dental
treatment and dental advice
111
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
reasonably necessary for the
preservation of dental health;
(h) the right to practise a religion of
the forensic patient's choice and,
if consistent with the security,
good order and management of
the secure mental health unit, to
join with other forensic patients
in practising that religion and to
possess such articles as are
necessary for the practice of that
religion;
(i) subject to Subdivision 3, the right
to receive visits from persons at
reasonable times and reasonable
periods with each visit being of a
reasonable length;
(j) the right to advise next of kin, or
a person with whom the forensic
patient has had a longstanding
relationship, of his or her
admission to the secure mental
health unit;
(k) the right to have access to legal
advice;
(l) the right to be provided with
information about the rules and
conditions which will govern the
forensic patient's behaviour in the
secure mental health unit.
(2) For the purposes of subsection (1)(j), the
question of whether a person has had a
longstanding relationship with a forensic
112
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
patient is to be determined by the Chief
Forensic Psychiatrist.
73B. Medical tests for HIV, &c.
(1) In this section -
"approved counsellor" means a
person approved by the Secretary
of the responsible Department in
relation to the HIV/AIDS
Preventive Measures Act 1993 for
the purposes of this section;
"HIV" means Human
Immunodeficiency Virus.
(2) The Chief Forensic Psychiatrist may
require a forensic patient to undergo a
test for HIV or other blood-borne
diseases carried out by a medical
practitioner or a nurse registered under
the Nursing Act 1995 -
(a) as soon as practicable on
admission to the secure mental
health unit; and
(b) at such regular intervals as the
Chief Forensic Psychiatrist
considers appropriate or
necessary in the circumstances.
(3) If a forensic patient refuses to undergo a
test, an approved counsellor nominated
by the Chief Forensic Psychiatrist for the
purpose is to counsel the forensic patient
113
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
in respect of the necessity or desirability
of undergoing the test.
(4) A medical practitioner or nurse who,
under subsection (2), carries out a test the
result of which is positive is to submit a
report of the result to the Chief Forensic
Psychiatrist as soon as practicable after
obtaining the result.
(5) The provisions of Divisions 1 and 2 of
Part 2, other than section 16, of the
HIV/AIDS Preventive Measures Act 1993
apply to the testing of forensic patients
for HIV under this section.
(6) Section 15 of the HIV/AIDS Preventive
Measures Act 1993 applies as if a
reference to an approved health care
worker authorised by a medical
practitioner is a reference to a nurse
registered under the Nursing Act 1995.
Subdivision 5 - Transfer of forensic patient to another
secure mental health unit or a secure institution
73C. Transfer of forensic patient to another
secure mental health unit
(1) The Chief Forensic Psychiatrist may
direct that a forensic patient be
transferred from one secure mental health
unit to another secure mental health unit
if -
(a) the transfer is necessary or
desirable -
114
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(i) for the care or treatment
of the patient; or
(ii) for the purpose of
avoiding or minimising
risk to other persons; and
(b) the controlling authorities
concerned agree to the transfer.
(2) If the Chief Forensic Psychiatrist has
directed the transfer of a forensic patient,
the Chief Forensic Psychiatrist or the
controlling authority of the secure mental
health unit may appoint a person to take
charge of the forensic patient while being
transferred from one secure mental health
unit to the other.
(3) While the forensic patient is being
transferred from one secure mental health
unit to the other -
(a) the forensic patient remains in the
custody of the controlling
authority of the secure mental
health unit from which he or she
is being removed until he or she
is admitted to the secure mental
health unit to which he or she is
being transferred; and
(b) the person appointed under
subsection (2) has the authority to
act in the name of the controlling
authority and as an authorised
person for the purposes of this
Part.
115
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(4) When the forensic patient is transferred,
an order for detention of the forensic
patient has effect as if it provided for the
detention of the forensic patient in the
secure mental health unit to which the
forensic patient is transferred.
(5) The Forensic Tribunal may, on
application by the forensic patient or
another person who satisfies the Forensic
Tribunal that he or she has a proper
interest in the matter, review a decision
to transfer a forensic patient under this
section.
(6) On a review under subsection (5), the
Forensic Tribunal may confirm, vary or
revoke the decision and give
consequential directions.
73D. Secure institution
The Minister may approve an institution
other than a hospital as a secure
institution.
73E. Removal of forensic patient to hospital,
secure institution, &c.
(1) The Chief Forensic Psychiatrist may
direct that a forensic patient be removed
from a secure mental health unit to a
hospital, a health service within the
meaning of the Health Complaints Act
1995, premises where such a health
service is provided or a secure institution.
116
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(2) On the making of a direction under
subsection (1), the Chief Forensic
Psychiatrist or the controlling authority
of the secure mental health unit may
appoint a person to take charge of the
forensic patient while the forensic patient
is in the hospital, health service, premises
or secure institution pursuant to the
direction.
(3) While the forensic patient is in a hospital,
health service, premises or secure
institution pursuant to a direction under
subsection (1) -
(a) the forensic patient remains in the
custody of the controlling
authority of the secure mental
health unit; and
(b) the person appointed under
subsection (2) has the authority to
act in the name of the controlling
authority and as an authorised
person for the purposes of this
Part.
Division 4 - Return of forensic patients to secure mental
health unit
73F. Return of forensic patients in Tasmania to
secure mental health unit
(1) This section applies to a forensic patient
who is not subject to a restriction order.
Note The return to a secure mental health unit of a
forensic patient subject to a restriction order is provided for
in the Criminal Justice (Mental Impairment) Act 1999.
117
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(2) If a forensic patient -
(a) is absent without leave of absence
granted under Subdivision 2 of
Division 3 while in the custody of
the controlling authority of the
secure mental health unit; or
(b) contravenes a condition on which
such a leave of absence was so
granted -
the controlling authority may authorise a
police officer or an authorised officer, in
writing, to take the patient into protective
custody and return him or her to the
secure mental health unit as soon as
practicable.
(3) This section does not apply if the order
under which the forensic patient is liable
to detention in a prison or a secure
mental health unit has been discharged or
has expired without being renewed.
73G. Return of forensic patients outside Tasmania
to secure mental health unit
(1) This section applies to a forensic patient
other than one who is subject to -
(a) an order of detention referred to
in section 41(1A) of the Criminal
Justice (Mental Impairment) Act
1999; or
(b) a continuing care order referred
to in section 41(1B) of that Act.
118
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(2) A magistrate may issue a warrant
authorising the arrest of a forensic patient
and his or her return to a secure mental
health unit if he or she suspects on
reasonable grounds that the forensic
patient -
(a) is absent without leave of absence
granted under Subdivision 2 of
Division 3 while in the custody of
the controlling authority of the
secure mental health unit; and
(b) is no longer in Tasmania.
Division 5 - Miscellaneous
73H. Searching persons in secure mental health
unit
(1) For the security or good order and
management of a secure mental health
unit, or for the safety of persons in a
secure mental health unit, the controlling
authority of the secure mental health unit
or the Chief Forensic Psychiatrist may
require or authorise an authorised person
to do one or more of the following in
accordance with the requirement or
authorisation:
(a) search any part of the secure
mental health unit;
(b) search and examine a forensic
patient, a visitor to the secure
mental health unit, a member of
the staff of the secure mental
119
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
health unit, a medical practitioner
or another person present in the
secure mental health unit;
(c) search and examine any thing in
the secure mental health unit;
(d) as well as the formal search
required by section 72Y, require a
person wishing to enter or remain
in a secure mental health unit to
submit to a search and
examination of the person and of
any thing in the person's
possession or under the person's
control;
(e) conduct any search or
examination under paragraph (a),
(b), (c) or (d) at random.
(2) A search or examination of a person, or a
thing in a person's possession or under a
person's control, may be conducted
without the person's consent and using
such restraint and force as is reasonable
in the circumstances if -
(a) the person is a forensic patient; or
(b) the person is a member of the
staff of a secure mental health
unit who has refused to submit
himself or herself or the thing in
or under his or her possession or
control for search or examination
while in the secure mental health
unit.
120
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(3) If a person, other than a forensic patient
or a member of the staff of the secure
mental health unit, refuses to submit to
be searched or examined under this
section while in the secure mental health
unit, an authorised person may direct the
person to leave the secure mental health
unit immediately.
(4) A person must comply with a direction
under subsection (3).
Penalty: Fine not exceeding 5 penalty
units.
(5) If a person refuses or fails to comply
with a direction under subsection (3) -
(a) an authorised person may detain
the person for such time as is
necessary for the person to be
arrested by a police officer under
paragraph (b); and
(b) the person may be arrested by a
police officer without warrant.
(6) A search or examination of a visitor to
the secure mental health unit under this
section that involves the visitor
undressing or the person who makes the
search touching the visitor is to be made
by a medical practitioner, or member of
staff of the secure mental health unit, of
the same gender as the visitor and in the
presence of persons of that gender only
unless the Chief Forensic Psychiatrist
directs otherwise.
121
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(7) For the purpose of exercising the powers
conferred by this section, an authorised
person may use such force, means and
assistants as he or she considers
reasonably necessary for the purpose.
73I. Seizure
(1) In carrying out a search or examination
under section 72Y or 73H, the Chief
Forensic Psychiatrist or an authorised
person may seize any one or more of the
following:
(a) any thing found in the secure
mental health unit, whether in a
person's possession or not, which
the Chief Forensic Psychiatrist or
authorised person believes on
reasonable grounds jeopardises or
is likely to jeopardise the security
or good order and management of
the secure mental health unit or
the safety of persons in the secure
mental health unit;
(b) any thing found on a forensic
patient or in or under a forensic
patient's possession or control,
other than a thing which the
forensic patient is authorised to
wear or to possess under this Part,
the regulations, standing orders
issued by the Chief Forensic
Psychiatrist or a direction of the
controlling authority;
122
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(c) any thing which the Chief
Forensic Psychiatrist or
authorised person believes on
reasonable grounds jeopardises or
is likely to jeopardise the security
or good order or management of
the secure mental health unit or
the safety of persons in the secure
mental health unit, despite that
thing being something the
forensic patient is authorised to
wear or to possess under this Part,
the regulations, standing orders
issued by the Chief Forensic
Psychiatrist or a direction of the
controlling authority.
(2) If the Chief Forensic Psychiatrist or an
authorised person seizes any thing under
subsection (1), the Chief Forensic
Psychiatrist or authorised person is to
immediately inform the controlling
authority of the secure mental health unit
of that fact.
(3) The controlling authority of the secure
mental health unit is to ensure that any
thing seized under this section -
(a) from a visitor or member of the
staff of the secure mental health
unit is returned to that visitor or
member of staff when he or she
leaves the secure mental health
unit; or
(b) from a forensic patient is, on the
discharge of the forensic patient
123
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
from the secure mental health
unit, returned to or given into the
custody of the forensic patient,
the Director, the Secretary (Youth
Justice) or the controlling
authority of an approved hospital,
as appropriate -
unless that thing is a drug of dependence
or a thing which is illegal for a person to
possess or carry.
73J. Offence to bring certain things into secure
mental health unit
(1) A person must not bring into a secure
mental health unit a thing that the Chief
Forensic Psychiatrist or the controlling
authority has not authorised to be
brought into the secure mental health
unit.
Penalty: Fine not exceeding 20 penalty
units or imprisonment for a term
not exceeding 12 months, or both.
(2) If a member of the staff of a secure
mental health unit finds a person
contravening subsection (1), an
authorised person, with such assistants
and using such force as he or she
considers appropriate in the
circumstances, may detain that person
pending the arrival of a police officer.
(3) A police officer may arrest without
warrant a person who the police officer
124
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
reasonably believes has contravened
subsection (1).
(4) In addition to any other penalty that may
be imposed, a person who is convicted of
an offence against subsection (3) is not
entitled to be employed in or undertake
any work, including the practice of
medicine, in any secure mental health
unit unless the Secretary determines
otherwise.
73K. Bringing prisoners before courts
(1) In this section -
"new offence" means -
(a) an offence other than the offence
which was the cause of a person
becoming a prisoner; or
(b) an offence other than the offence
which resulted in a person being
detained in a secure mental health
unit under an order of a court; or
(c) in the case of an involuntary
patient admitted to a secure
mental health unit, any offence.
(2) If a patient in the custody of the
controlling authority of a secure mental
health unit is charged with a new
offence, a justice, by written order, may
direct the controlling authority to bring
the patient before the court specified in
the order or the judge or magistrate who
125
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
is then present to be dealt with according
to law.
(3) A judge or magistrate may order the
controlling authority of a secure mental
health unit to bring a patient in the
custody of the controlling authority
before the judge or magistrate to give
evidence.
(4) If a justice, judge or magistrate is
considering making an order under
subsection (2) or (3), the justice, judge or
magistrate is to take into account the
advice of the Chief Forensic Psychiatrist
or an approved medical practitioner as to
the fitness of the patient to attend at
court.
(5) The controlling authority of a secure
mental health unit -
(a) is to comply with an order under
subsection (2) or (3) as soon as
practicable; and
(b) when complying with the order,
is to comply with the standing
orders issued by the Chief
Forensic Psychiatrist.
(6) Before making an order under
subsection (3), a judge or magistrate may
require an applicant to deposit sufficient
money to pay all the expenses involved
in bringing the patient before the court
and maintaining the patient from the time
he or she leaves, until the time of return
to, the secure mental health unit.
126
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
73L. Presence at taking of certain depositions
(1) If a patient in the custody of the
controlling authority of a secure mental
health unit has received notice of an
intention to take the deposition of a
person dangerously ill and unable to
travel, the controlling authority, at the
request of a judge or magistrate, may
bring the patient to a place specified in
the request for the taking of the
deposition.
(2) If a judge or magistrate is considering
making a request under subsection (1),
the judge or magistrate is to take into
account the advice of the Chief Forensic
Psychiatrist or an approved medical
practitioner as to the fitness of the patient
to attend at the taking of the deposition.
73M. Court may proceed in absence of forensic
patient, &c.
Despite any other law to the contrary, on
the advice of the Chief Forensic
Psychiatrist a court may -
(a) hear a matter or otherwise
proceed with proceedings before
the court in the absence of a
forensic patient who is a party to
the proceedings if the forensic
patient has legal representation;
or
127
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) hold the hearing or proceedings
in any place the court considers
appropriate.
73N. Custody
While a person is a forensic patient, he or
she is in the custody of the controlling
authority of the secure mental health unit
to which the person is admitted as a
forensic patient unless he or she is in the
custody of another person under an order
of a court.
73O. Application of Part to places other than
secure mental health units
If a forensic patient is in the custody of
the controlling authority of a secure
mental health unit but is being detained
in a hospital, a health service within the
meaning of the Health Complaints Act
1995, premises where such a health
service is provided, a secure institution or
another place, those provisions of this
Part as are appropriate apply -
(a) in respect of the forensic patient
as if he or she were in the secure
mental health unit; and
(b) in respect of the hospital, health
service, premises, secure
institution or other place as if it
were a secure mental health unit.
128
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
73P. Notifying victims of release
Before a forensic patient is released from
a secure mental health unit or transferred
to another secure mental health unit, the
controlling authority is to request the
Secretary (Corrections) to search the
Victims Register and notify any victim
registered in relation to the forensic
patient in that Register that the forensic
patient is being so released or transferred
unless it is not practicable to notify such
a victim in the circumstances.
73Q. Application of Corrections Act 1997 to
forensic patients who are prisoners
(1) Except as provided in subsection (2),
Parts 4, 5, 6, 7 and 9 of the Corrections
Act 1997 do not apply to a forensic
patient who is also a prisoner.
(2) Sections 86 and 87(1)(b) of the
Corrections Act 1997 apply to a forensic
patient who is also a prisoner.
73R. Warrant of commitment not void
A warrant of commitment is not to be
held void by reason of a formal defect in
it.
129
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
73S. Preservation of royal prerogative of mercy
Nothing in this Act is to be construed so
as to limit or affect in any way the
exercise in relation to a forensic patient
who is also a prisoner of the royal
prerogative of mercy.
PART 10B - FORENSIC TRIBUNAL
Division 1 - Establishment of Forensic Tribunal
73T. Establishment of Forensic Tribunal
(1) The Forensic Tribunal is established.
(2) All courts and persons acting judicially
must take judicial notice of any
document purporting to be made by the
Forensic Tribunal and presume that it
was duly made by the Forensic Tribunal.
73U. Membership of Forensic Tribunal
(1) The Forensic Tribunal consists of -
(a) the President of the Mental
Health Tribunal; and
(b) the President of the Board; and
(c) one other member.
(2) The member of the Forensic Tribunal
referred to in subsection (1)(c) is
appointed by the Minister -
(a) from the Forensic Tribunal
Member Register; and
130
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(b) for the term, or for the purposes
of a particular matter, as
determined by the Minister.
(3) The President of the Mental Health
Tribunal is the chairperson of the
Forensic Tribunal.
(4) Schedule 1A has effect with respect to
membership of the Forensic Tribunal.
(5) An act or decision of the Forensic
Tribunal is not invalidated by reason
only of a defect or irregularity in the
appointment of a member.
73V. Functions and powers of Forensic Tribunal
(1) The Forensic Tribunal has the following
functions:
(a) to hear and determine
applications for leave from the
secure mental health unit in
respect of forensic patients who
are subject to restriction orders;
(b) to carry out under section 37 of
the Criminal Justice (Mental
Impairment) Act 1999 reviews of
orders made under that Act in
relation to their application to
forensic patients;
(c) to hear and determine
applications under section 72I for
the authorisation of medical
treatment for forensic patients;
131
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(d) to receive reports relating to
medical treatment provided to
forensic patients without
informed consent;
(e) to receive reports relating to the
seclusion and restraint of forensic
patients;
(f) to receive reports relating to
restrictions imposed with respect
to the receipt, or sending or
making, by forensic patients of
mail, email and telephone calls;
(g) to issue guidelines for the
purposes of sections 72L, 72M
and 72N;
(h) to review, as provided by section
36B of the Corrections Act 1997,
decisions as to whether or not
prisoners are to be admitted to a
secure mental health unit;
(i) to review, as provided by section
134B of the Youth Justice Act
1997, decisions as to whether or
not young prisoners are to be
admitted to a secure mental
health unit;
(j) other functions imposed by this
or any other Act.
(2) The Forensic Tribunal has power to do
all things necessary or convenient to be
done in connection with the performance
of its functions.
132
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
73W. Decisions of Forensic Tribunal
(1) A majority of the members of the
Forensic Tribunal is competent to
transact any business of the Forensic
Tribunal.
(2) A decision in which a majority of the
members of the Forensic Tribunal agree
is a decision of the Forensic Tribunal.
73X. Staff of Forensic Tribunal
(1) The Secretary of the Department is to
arrange for the services of State Service
employees or State Service officers
employed in the Department to be made
available to enable the Forensic Tribunal
to perform and exercise its functions and
powers.
(2) A State Service employee or State
Service officer made available under
subsection (1) may serve the Forensic
Tribunal in conjunction with State
Service employment.
73Y. Assistance, resources and facilities
The Secretary of the Department is to
arrange to be provided to the Forensic
Tribunal from the resources of the
Department such assistance, resources
and facilities as are necessary to enable
the Forensic Tribunal to perform and
exercise its functions and powers.
133
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
73Z. Appointment of persons to assist Forensic
Tribunal
The Forensic Tribunal may appoint a
legal practitioner, medical practitioner or
other person with appropriate expertise to
assist the Forensic Tribunal in
proceedings before it.
Division 2 - Proceedings of Forensic Tribunal
74. Interpretation of Division
In this Division -
"party to proceedings" includes -
(a) the forensic patient; and
(b) if relevant, the Chief Forensic
Psychiatrist; and
(c) if relevant, the controlling
authority of the secure mental
health unit; and
(d) any other person to whom the
Forensic Tribunal has given a
notice of review in respect of the
proceedings.
74A. Sittings
The Forensic Tribunal is to sit at times
and places determined by its chairperson.
134
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
74B. Notification of hearings
The Forensic Tribunal -
(a) is to give reasonable notice of a
hearing of proceedings to each
party; and
(b) unless it considers that it is not
appropriate in the circumstances,
is to give reasonable notice of a
hearing of proceedings to each of
the following persons who is not
a party:
(i) the Public Guardian;
(ii) the Chief Forensic
Psychiatrist;
(iii) the controlling authority
of the secure mental
health unit concerned;
(iv) the Director of Public
Prosecutions.
74C. General principles for hearings
(1) The Forensic Tribunal, in hearing a
matter, including a review of a decision -
(a) must act according to good
conscience having regard to the
objects and principles specified in
sections 6 and 7; and
(b) is bound by the rules of natural
justice.
135
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(2) The Forensic Tribunal must avoid
unnecessary formality.
74D. Representation in proceedings before
Forensic Tribunal
(1) A party to proceedings -
(a) is entitled to be present, in
person, when the Forensic
Tribunal hears the proceedings
unless the Forensic Tribunal
determines otherwise; and
(b) may appear personally in the
proceedings or be represented by
a legal practitioner or other
person.
(2) For the purposes of subsection (1)(a), the
Forensic Tribunal may determine that a
party to proceedings, including the
forensic patient, may not be present in
person if it is of the opinion that it may
be detrimental to the health of the
forensic patient for the person to be so
present.
(3) If the Forensic Tribunal determines that a
party to proceedings may not be present
in person, the party is entitled to be
present by audio link, or audio visual
link, within the meaning of the Evidence
(Audio and Audio Visual Links) Act
1999, if so determined, and as
determined, by the Forensic Tribunal.
136
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(4) The Forensic Tribunal may not determine
that a party to proceedings may be
present by audio link or audio visual link
if the facilities are not available.
(5) The Forensic Tribunal may make
arrangements, including adjournment of
the proceedings, for the representation of
a party to proceedings before it.
74E. Evidence before Forensic Tribunal
(1) The Forensic Tribunal is not bound by
the rules of evidence but may inform
itself as it considers appropriate.
(2) Evidence before the Forensic Tribunal
may be given -
(a) orally, in writing or partly orally
and partly in writing; and
(b) on oath or affirmation or by
statutory declaration.
(3) An oath or affirmation to a witness may
be administered by any member of the
Forensic Tribunal.
(4) Evidence given before the Forensic
Tribunal is not admissible in civil or
criminal proceedings other than -
(a) in proceedings for an offence
against this Act; or
(b) in proceedings for an offence
committed at, or arising out of, a
137
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
hearing before the Forensic
Tribunal; or
(c) in any other proceedings under
this Act; or
(d) in proceedings under the
Criminal Justice (Mental
Impairment) Act 1999 or
Guardianship and Administration
Act 1995; or
(e) in proceedings where another Act
specifically allows or requires the
admission of that evidence.
(5) A person who appears as a witness
before the Forensic Tribunal has the
same protection as a witness in
proceedings before the Court.
(6) Despite sections 127A and 127B of the
Evidence Act 2001, a medical
practitioner or counsellor may disclose to
the Forensic Tribunal information
without the consent of the forensic
patient to whom the information relates.
74F. Summoning of witnesses
(1) The Forensic Tribunal, on its own
initiative or on the application of a party
to proceedings, may summon a person -
(a) to appear before it and give
evidence at the time and place
specified in the summons; or
138
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(b) to provide any documents to the
Forensic Tribunal as specified in
the summons; or
(c) to so appear before it and so
provide documents.
(2) A summons must be served personally,
by post or as otherwise determined by the
Forensic Tribunal.
(3) Without limiting the manner in which the
Forensic Tribunal may determine a
summons to be served, it may determine
that service is to be by substituted
service.
74G. Power to require reports, &c.
(1) The Forensic Tribunal may require the
Chief Forensic Psychiatrist or the
controlling authority of a secure mental
health unit or an approved hospital to
provide it with -
(a) a report on the forensic patient to
whom proceedings before the
Forensic Tribunal relate; and
(b) copies of records about the care
and treatment of such a forensic
patient.
(2) If a forensic patient to whom proceedings
before the Forensic Tribunal relate was
transferred to the secure mental health
unit from a prison, the Forensic Tribunal
139
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
may require the Director or the Secretary
(Youth Justice) to provide it with -
(a) a report on the forensic patient;
and
(b) copies of records about the care
and treatment of the forensic
patient while in the prison.
74H. Medical examinations
(1) In this section -
"medical examination" includes an
examination of the physical,
psychological and mental
capacities of a forensic patient.
(2) The Forensic Tribunal, by notice in
writing, may require a forensic patient to
whom proceedings before the Forensic
Tribunal relate to submit to a medical
examination by a medical practitioner
specified by the Forensic Tribunal,
including a medical practitioner who is a
member of the Forensic Tribunal.
(3) The Forensic Tribunal must not require a
patient to submit to a medical
examination unless, having regard to the
relevant inquiry, it is reasonable to
require that examination.
(4) A notice under subsection (2) is to
specify -
140
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
(a) the name of the medical
practitioner who is to carry out
the examination; and
(b) the date, time and place of the
examination.
(5) The date, time and place specified for a
medical examination must be reasonable.
(6) The medical practitioner who carries out
the medical examination must provide
the Forensic Tribunal and the patient
with a written report on the results of that
examination.
74I. Visits by Forensic Tribunal
The Forensic Tribunal, or any one or
more of its members, may visit and
interview in private any forensic patient
by or in respect of whom an application
has been made to the Forensic Tribunal
or who is the subject of a forensic order
being reviewed by the Forensic Tribunal.
74J. Right of certain persons to intervene
The Public Guardian, the controlling
authority of a secure mental health unit,
the Director of Public Prosecutions and
the Chief Forensic Psychiatrist may
intervene and be represented in any
proceedings before the Forensic
Tribunal.
141
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
74K. Proceedings to be closed
(1) All proceedings before the Forensic
Tribunal are closed to members of the
public unless the Tribunal otherwise
orders.
(2) If proceedings before the Forensic
Tribunal are open to the public, a person
who is directly interested in the
proceedings may request the Tribunal to
have the proceedings or part of the
proceedings closed to the public.
(3) On a request under subsection (2), the
Forensic Tribunal may direct that any
person -
(a) who in its opinion is not directly
interested in the proceedings; or
(b) who has not been authorised by
the Tribunal to be present at the
proceedings -
is to be excluded from the place where
the proceedings are being, or are to be,
heard.
(4) If a person hinders or disrupts the proper
conduct of the proceedings, the Forensic
Tribunal may exclude the person from
the hearing.
142
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
Division 3 - Forensic Tribunal Member Register
74L. Forensic Tribunal Member Register
(1) The Secretary must keep a register of
persons from whom the member of the
Forensic Tribunal referred to in
section 73U(1)(c) is to be appointed.
(2) A person, in writing, may request the
Secretary to remove the person's name
from the Forensic Tribunal Member
Register at any time.
(3) The Secretary is to -
(a) keep the Forensic Tribunal
Member Register current; and
(b) remove from the Forensic
Tribunal Member Register the
name of any person who has been
entered in it for a period of 3
years and has not been
nominated, or has not made an
application, for further entry in
the Register at the end of that
period; and
(c) remove from the Forensic
Tribunal Member Register the
name of any person who has
requested it; and
(d) remove from the Forensic
Tribunal Member Register the
name of any person who the
Secretary has become aware is no
longer residing in the State or is
143
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
no longer qualified or suitable to
be entered in the Register.
74M. Calling for interested persons
For the purposes of ensuring that a
reasonable selection of people is entered
in the Forensic Tribunal Member
Register, the Secretary, on the
recommendation of the Chief Forensic
Psychiatrist, may -
(a) by advertising in 3 daily
newspapers published and
circulating in the State, request
any person, or any person of a
class specified in the request,
interested in being entered in the
Forensic Tribunal Member
Register to apply to the Secretary;
and
(b) request State Service officers and
State Service employees, or
persons employed in or for the
purposes of a statutory authority,
that the Secretary considers have
functions or powers that are
relevant to the matters that the
Forensic Tribunal is required to
consider to apply for entry in the
Forensic Tribunal Member
Register; and
(c) request persons, or persons of a
class specified in the request, who
are employed in or concerned
144
2005 Mental Health Amendment (Secure No. s. 50
Mental Health Unit)
with the provision of health
services to apply for entry in the
Forensic Tribunal Member
Register.
74N. Entering persons in Forensic Tribunal
Member Register
(1) On receipt of an application for the entry
of a person in the Forensic Tribunal
Member Register, the Secretary must
inquire into the qualifications and
suitability of the person to be so entered.
(2) If the Secretary considers that the
nominee or applicant is qualified and
suitable to be entered in the Forensic
Tribunal Member Register, the Secretary
is to -
(a) enter in the Register the person's
name, address and qualifications,
and any other information the
Secretary considers appropriate;
and
(b) notify the person, in writing, that
the person has been entered in the
Forensic Tribunal Member
Register and that the person will
remain in the Register for the
period of 3 years.
(3) Despite subsection (2), the Secretary is
not to enter the name of a person in the
Forensic Tribunal Member Register
unless -
145
s. 50 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(a) in the case of a State Service
officer or State Service employee
employed in a State Service
Agency other than the
Department, the Head of the State
Service Agency has consented to
that officer or employee being so
entered in the Forensic Tribunal
Member Register; or
(b) in the case of a person employed
in, or for the purposes of, a
statutory authority and required
by any Act to devote the whole of
his or her time to the duties of
that employment, the statutory
authority has consented to that
person being so entered in the
Forensic Tribunal Member
Register.
(4) In determining who is qualified and
suitable to be entered in the Forensic
Tribunal Member Register, the Secretary
is to seek the advice of the Chief
Forensic Psychiatrist.
Division 4 - Miscellaneous
74O. Annual report of Forensic Tribunal
(1) The Forensic Tribunal must, in respect of
each financial year, prepare an annual
report giving full particulars of the
exercise of its powers under this Act
during the financial year and must
provide the Minister with the report
before the following 30 September.
146
2005 Mental Health Amendment (Secure No. s. 51
Mental Health Unit)
(2) The Minister must cause the report to be
laid before each House of Parliament
within 14 sitting-days of that House after
receiving the report.
51. Section 73 amended (Appointment of official
visitors)
Section 73 of the Principal Act is amended as
follows:
(a) by renumbering the section as section
74P;
(b) by omitting from subsection (2)(b)
"hospital -" and substituting "hospital;
or";
(c) by inserting the following paragraph after
paragraph (b) in subsection (2):
(c) for a nominated secure mental
health unit -
(d) by omitting from subsection (2) "region
or hospital" and substituting "such
region, hospital or secure mental health
unit";
(e) by omitting from subsection (3)(b)
"Crown or an approved hospital" and
substituting "Crown, an approved
hospital or a secure mental health unit";
(f) by omitting from subsection (3)(c)
"hospital." and substituting "hospital or a
secure mental health unit.".
147
s. 52 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
52. Section 74 renumbered
Section 74 of the Principal Act is renumbered as
section 74Q:
53. Section 75 amended (Functions of official visitor)
Section 75 of the Principal Act is amended as
follows:
(a) by inserting in paragraph (a) "or secure
mental health unit" after "hospital";
(b) by omitting from paragraph (b) "region
or approved hospital" and substituting
"region, approved hospital or secure
mental health unit";
(c) by omitting from paragraph (c) "region
or approved hospital" and substituting
"region, approved hospital or secure
mental health unit".
54. Section 77 amended (Visiting approved hospitals
and secure mental health unit)
Section 77 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or secure
mental health unit" after "hospital";
(b) by inserting in subsection (2) "or secure
mental health unit" after "hospital";
(c) by omitting from subsection (3) "senior
approved medical practitioner of an
148
2005 Mental Health Amendment (Secure No. s. 55
Mental Health Unit)
approved hospital or another member of
staff" and substituting "Chief Forensic
Psychiatrist, or the senior approved
medical practitioner or another member
of staff of an approved hospital or a
secure mental health unit";
(d) by inserting in subsection (3)(a) "or
secure mental health unit" after
"hospital";
(e) by inserting in subsection (3)(b) "or
forensic patients and other patients in the
secure mental health unit" after
"hospital";
(f) by inserting in subsection (3)(c) "or
forensic patients and other patients in the
secure mental health unit" after
"hospital";
(g) by inserting in subsection (3)(d) "in the
hospital or forensic patients and other
patients in the secure mental health unit"
after "patients".
55. Section 78 amended (Controlling authority to
facilitate visits on request)
Section 78 of the Principal Act is amended as
follows:
(a) by inserting "or a forensic patient or
other patient in a secure mental health
unit" after "approved hospital";
(b) by inserting "or secure mental health
unit" after "the hospital".
149
s. 56 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
56. Section 79 substituted
Section 79 of the Principal Act is repealed and
the following section is substituted:
79. Reports of suspected contravention of this
Act
If an official visitor suspects on
reasonable grounds a contravention of
this Act in relation to the care or
treatment of a patient with a mental
illness, the official visitor must report the
suspicion and the grounds on which it is
held to -
(a) the Mental Health Tribunal if the
patient is in an approved hospital;
or
(b) the Forensic Tribunal if the
patient is a forensic patient or an
involuntary patient in a secure
mental health unit.
57. Section 81 amended (Annual report by coordinating
official visitor)
Section 81(1) of the Principal Act is amended by
inserting "or secure mental health unit" after
"hospital".
58. Section 82 amended (Transfer agreements)
Section 82 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
150
2005 Mental Health Amendment (Secure No. s. 59
Mental Health Unit)
(1) The Minister may enter into an
agreement with the Minister responsible
for the administration of a corresponding
law providing for the transfer of -
(a) involuntary patients; and
(b) forensic patients who are not also
prisoners.
59. Section 83 amended (Effect of transfer agreements)
Section 83 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1)(a) "or
forensic patient" after "patient";
(b) by inserting in subsection (1)(a) "or
secure mental health unit" after
"hospital";
(c) by inserting in subsection (1)(b) "or
forensic patient" after "patient";
(d) by inserting in subsection (1)(b) "or
secure mental health unit" after
"hospital";
(e) by inserting the following subsection
after subsection (3):
(4) On a transfer of a forensic patient
as mentioned in subsection (1)(b),
an order for his or her detention
under the law of the relevant
State or Territory has effect,
subject to any adaptations and
151
s. 60 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
modifications for which the
relevant agreement provides, as if
it were a restriction order,
continuing care order, order
imposing a sentence of
imprisonment or other order
made in this State.
60. Section 83B amended (Agreements for the return,
&c., of absconding involuntary patients)
Section 83B(1)(a) of the Principal Act is
amended by inserting "or secure mental health
unit" after "hospital".
61. Section 83F amended (Apprehension, &c., of
involuntary patients found interstate)
Section 83F of the Principal Act is amended as
follows:
(a) by inserting in paragraph (a) "or secure
mental health unit" after "the approved
hospital";
(b) by inserting in paragraph (a) "or secure
mental health unit" after "that approved
hospital";
(c) by inserting "or secure mental health
unit" after "to that approved hospital".
152
2005 Mental Health Amendment (Secure No. s. 62
Mental Health Unit)
62. Section 84 amended (Protection relating to reports
and information)
Section 84(1) of the Principal Act is amended as
follows:
(a) by omitting "Tribunal" first occurring
and substituting "Mental Health Tribunal
or Forensic Tribunal";
(b) by omitting "Tribunal" second occurring
and substituting "Mental Health Tribunal
or Forensic Tribunal";
(c) by omitting from paragraph (b)
"Tribunal" twice occurring and
substituting "Mental Health Tribunal or
Forensic Tribunal".
63. Section 85 amended (Confidentiality of
information)
Section 85 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)
"Tribunal" first occurring and
substituting "Mental Health Tribunal or
Forensic Tribunal";
(b) by omitting from subsection (1)(b)
"Tribunal" and substituting "Mental
Health Tribunal or Forensic Tribunal";
(c) by omitting from subsection (1)(c)
"President." and substituting "President
or a member of the Forensic Tribunal;
or";
153
s. 64 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(d) by inserting the following paragraph after
paragraph (c) in subsection (1):
(d) where the disclosure of the
information is authorised or
required by a court or authorised
under any law.
(e) by omitting from subsection (3)
"Tribunal" and substituting "Mental
Health Tribunal or Forensic Tribunal".
64. Section 86 amended (Protection from liability)
Section 86 of the Principal Act is amended by
omitting "Tribunal" three times occurring and
substituting "Mental Health Tribunal or Forensic
Tribunal".
65. Section 88 amended (Removal, &c., of involuntary
patient or forensic patient)
Section 88 of the Principal Act is amended as
follows:
(a) by inserting in paragraph (a) "or secure
mental health unit" after "hospital";
(b) by inserting the following paragraph after
paragraph (a):
(ab) remove a forensic patient from a
secure mental health unit; or
(c) by inserting in paragraph (b) "or forensic
patient" after "patient".
154
2005 Mental Health Amendment (Secure No. s. 66
Mental Health Unit)
66. Section 89 amended (Obstruction)
Section 89 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b)
"Tribunal" and substituting "Mental
Health Tribunal or Forensic Tribunal";
(b) by inserting the following paragraph after
paragraph (b):
(ba) the Chief Forensic Psychiatrist; or
67. Section 90 amended (Confidentiality)
Section 90 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(c)
"Board or the Tribunal." and substituting
"Board, the Mental Health Tribunal or
the Forensic Tribunal; or";
(b) by inserting the following paragraph after
paragraph (c) in subsection (2):
(d) in the case of information about a
forensic patient, the disclosure is
authorised or required by a law.
(c) by inserting the following subsections
after subsection (2):
(3) A person, for profit or for
financial or other consideration,
must not publish -
155
s. 68 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(a) the fact that another
person is a patient in a
secure mental health unit;
or
(b) any picture of another
person who is a patient in
a secure mental health
unit that relates to the
person's status as a
forensic patient -
without the written consent of
that other person and the Chief
Forensic Psychiatrist.
(4) Subsection (3) does not prohibit
the publication of a report on any
court proceedings which is not
otherwise prohibited by or under
any law.
68. Section 91 amended (Non-compliance with legal
process)
Section 91 of the Principal Act is amended as
follows:
(a) by inserting in paragraph (a) "Mental
Health Tribunal or Forensic" after
"before the";
(b) by omitting paragraph (c) and
substituting the following paragraphs:
(c) misbehaves before the Mental
Health Tribunal or Forensic
156
2005 Mental Health Amendment (Secure No. s. 69
Mental Health Unit)
Tribunal or otherwise interrupts
the Tribunal's proceedings; or
(ca) insults the Mental Health
Tribunal or Forensic Tribunal, a
member of the Tribunal or a
person assisting the Tribunal; or
(c) by inserting in paragraph (d) "or
affirmed" after "sworn";
(d) by inserting in paragraph (d) "Mental
Health Tribunal or Forensic" after "the".
69. Section 93 amended (Disqualification of certain
medical practitioners)
Section 93(b) of the Principal Act is amended by
inserting "or a secure mental health unit" after
"hospital".
70. Section 95 amended (Regulations)
Section 95 of the Principal Act is amended as
follows:
(a) by inserting the following subsection
after subsection (1):
(1A) Without limiting the generality of
subsection (1), the regulations
may make provision for the
purposes of -
(a) the maintenance of good
order in a secure mental
health unit or other place
157
s. 71 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
in which a forensic patient
is detained; and
(b) the safety of forensic
patients and other persons
in a secure mental health
unit or other place in
which a forensic patient is
detained.
(b) by omitting subsection (5) and
substituting the following subsection:
(5) The regulations may contain
provisions of a savings or
transitional nature consequent on
the enactment of this Act or any
Act that amends this Act.
(c) by omitting from subsection (6) "day"
second occurring and substituting "day,
whether or not that day precedes the day
on which the regulations containing that
provision are made".
71. Section 98 repealed
Section 98 of the Principal Act is repealed.
72. Schedule 1 amended (Members and staff of the
Mental Health Tribunal)
Schedule 1 to the Principal Act is amended as
follows:
(a) by inserting in the heading "MENTAL
HEALTH" after "THE";
158
2005 Mental Health Amendment (Secure No. s. 72
Mental Health Unit)
(b) by inserting in clause 1(1) "Mental
Health" after "member of the";
(c) by inserting in clause 1(3) "Mental
Health" after "of the";
(d) by inserting in clause 1(4) "Mental
Health" after "of the";
(e) by inserting in clause 2 "Mental Health"
after "member of the";
(f) by inserting in clause 2(a) "Mental
Health" after "which the";
(g) by inserting in clause 2(b) "Mental
Health" after "of the";
(h) by inserting in clause 3(1) "and powers
as a member of the Mental Health
Tribunal or as a member of the Forensic
Tribunal" after "President's functions";
(i) by inserting in clause 3(1)(a)(i) "and
powers" after "functions";
(j) by inserting in clause 3(1)(a)(iii) "and
powers" after "functions";
(k) by inserting in clause 3(2) "and powers"
after "functions";
(l) by inserting in clause 3(3) "and powers"
after "functions";
(m) by omitting from clause 4 "functions,"
and substituting "functions and powers
as a member of the Mental Health
Tribunal or the Forensic Tribunal,";
159
s. 73 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(n) by inserting in clause 5(5) "Mental
Health" after "matter by the";
(o) by inserting in clause 5(5) "Mental
Health" after "determined by the";
(p) by inserting in clause 6(b) "Mental
Health" after "by the";
(q) by inserting in clause 6 "Mental Health"
after "determined by the";
(r) by inserting in clause 7(1) "Mental
Health" after "registrar of the";
(s) by inserting in clause 7(1) "Mental
Health" after "functioning of the";
(t) by inserting in clause 8 "Mental Health"
after "The";
(u) by omitting from clause 8 "Tribunal"
second occurring and substituting
"Mental Health Tribunal".
73. Schedule 1A inserted
After Schedule 1 to the Principal Act, the
following Schedule is inserted:
SCHEDULE 1A - MEMBERSHIP OF FORENSIC
TRIBUNAL
Section 73U(4)
1. Interpretation
In this Schedule -
160
2005 Mental Health Amendment (Secure No. s. 73
Mental Health Unit)
"appointed member" means the
member of the Forensic Tribunal
referred to in section 73U(1)(c);
"meeting" includes, where
appropriate, proceeding and
hearing;
"member" means a member of the
Forensic Tribunal.
2. Holding other office
The holder of an office who is required
by the terms of his or her employment to
devote the whole of his or her time to the
duties of that office is not disqualified
from -
(a) holding that office and also the
office of a member; or
(b) accepting any remuneration
payable to a member.
3. State Service Act 2000
(1) The State Service Act 2000 does not
apply in relation to a member in his or
her capacity as a member.
(2) A person may hold the office of member
in conjunction with State Service
employment.
161
s. 73 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
4. Extension of term of office
(1) If the term for which a person is
appointed as the President or President of
the Board expires after the Forensic
Tribunal has commenced a hearing into a
matter but before that matter is finalised
by the Forensic Tribunal -
(a) the person is taken for the
purposes of that matter to
continue in the office of President
or President of the Board until
that matter is finalised by the
Forensic Tribunal; and
(b) another person appointed as
President or President of the
Board is taken, for those purposes
and until that matter is finalised,
not to be the President or
President of the Board.
(2) If the term for which the appointed
member is appointed expires after the
Forensic Tribunal has commenced a
hearing into a matter but before that
matter is finalised by the Forensic
Tribunal, that term is extended until the
matter is so finalised.
5. Remuneration and conditions of
appointment
(1) A member is entitled to be paid such
remuneration and allowances as the
Minister determines.
162
2005 Mental Health Amendment (Secure No. s. 73
Mental Health Unit)
(2) A member who is a State Service
employee or State Service officer is not
entitled to remuneration or allowances
under this clause except with the
approval of the Minister administering
the State Service Act 2000.
(3) An appointed member holds office on
such conditions in relation to matters not
provided for by this Act as are specified
in the member's instrument of
appointment or as determined by the
Minister.
6. Acting chairperson
(1) The member who is the President of the
Board may perform and exercise the
functions and powers of the chairperson
of the Forensic Tribunal if -
(a) the President of the Mental
Health Tribunal is absent from
Tasmania or from duty as
chairperson of the Forensic
Tribunal; or
(b) the President of the Mental
Health Tribunal is otherwise
unable to perform the functions
of the office of chairperson; or
(c) the office of President is vacant.
(2) While the member who is the President
of the Board is acting as chairperson of
the Forensic Tribunal under this section -
163
s. 73 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(a) that member is taken to be the
chairperson; and
(b) the Deputy President of the
Mental Health Tribunal is not the
chairperson.
7. Vacation of office
(1) An appointed member vacates office if -
(a) he or she dies; or
(b) he or she resigns by written
notice given to the Minister; or
(c) he or she is suspended or
removed from office under
subclause (2); or
(d) his or her appointment as member
is terminated under subclause (3).
(2) The Minister may suspend or remove an
appointed member from office if satisfied
that the member is unable to perform
adequately or competently the duties of
the office through illness or for any other
reason.
(3) The appointment of a member under
section 73U(1)(c) is terminated if the
member -
(a) becomes bankrupt, applies to take
the benefit of any law for the
relief of bankrupt or insolvent
debtors, compounds with the
164
2005 Mental Health Amendment (Secure No. s. 73
Mental Health Unit)
member's creditors or makes an
assignment of the member's
remuneration or estate for their
benefit; or
(b) is convicted in Tasmania of an
indictable offence or is convicted
elsewhere of an offence which if
committed in Tasmania would be
an indictable offence.
8. Filling of vacancies
If the office of an appointed member
becomes vacant, the Minister may
appoint a person from the Forensic
Tribunal Member Register to the vacant
office for the remainder of that member's
term, until the matter in respect of which
that member was appointed is finalised
or while the office is vacant.
165
s. 74 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
PART 3 - CORONERS ACT 1995 AMENDED
74. Principal Act
In this Part, the Coroners Act 1995* is referred
to as the Principal Act.
75. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "approved pathologist":
"authorised officer" means an
authorised officer within the
meaning of the Mental Health Act
1996;
(b) by inserting the following definition after
the definition of "body":
"controlling authority" means a
controlling authority within the
meaning of the Mental Health Act
1996;
(c) by inserting "or in a secure mental health
unit or another place while in the custody
of the controlling authority of a secure
mental health unit, within the meaning of
that Act" after "Mental Health Act 1996"
in paragraph (b) of the definition of
"person held in care";
*No. 73 of 1995
166
2005 Mental Health Amendment (Secure No. s. 75
Mental Health Unit)
(d) by inserting the following subparagraphs
after subparagraph (ii) in paragraph (a) of
the definition of "person held in
custody":
(iii) an authorised officer; or
(iv) the controlling authority of a
secure mental health unit; or
(v) a prescribed person within the
meaning of section 31 of the
Criminal Justice (Mental
Impairment) Act 1999; or
(vi) a person who has custody under
the order of a court for the
purposes of taking the person to
or from a court; or
(e) by omitting "centre or police custody"
from paragraph (c) of the definition of
"reportable death" and substituting
"centre, a secure mental health unit,
police custody or the custody of a person
who had custody under an order of a
court for the purposes of taking that
person to or from a court";
(f) by omitting "officer or correctional
officer" from paragraph (d) of the
definition of "reportable death" and
substituting "officer, correctional officer,
authorised officer or a prescribed person
within the meaning of section 31 of the
Criminal Justice (Mental Impairment)
Act 1999";
167
s. 76 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(g) by inserting the following definition after
the definition of "reportable death":
"secure mental health unit" means -
(a) a secure mental health
unit within the meaning of
the Mental Health Act
1996; or
(b) any other place in which a
person is being detained
while in the custody of
the controlling authority
of a secure mental health
unit;
76. Section 19 amended (Obligation to report death)
Section 19(4) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b) "centre
or police custody" and substituting
"centre, a secure mental health unit,
police custody or the custody of a person
who had custody under an order of a
court for the purposes of taking that
person to or from a court";
(b) by omitting from paragraph (c) "police
officer or correctional officer" and
substituting "a police officer, correctional
officer, authorised officer or prescribed
person, within the meaning of section 31
of the Criminal Justice (Mental
Impairment) Act 1999,";
168
2005 Mental Health Amendment (Secure No. s. 77
Mental Health Unit)
(c) by omitting "officer or correctional
officer" second occurring and
substituting "officer, correctional officer,
authorised officer or prescribed person".
77. Section 24 amended (Jurisdiction of coroner to hold
inquest into a death)
Section 24(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (d) "centre
or police custody" and substituting
"centre, a secure mental health unit,
police custody or the custody of a person
who had custody under an order of a
court for the purposes of taking that
person to or from a court";
(b) by omitting from paragraph (e) "police
officers or correctional officers" and
substituting "a police officer, correctional
officer, authorised officer or prescribed
person, within the meaning of section 31
of the Criminal Justice (Mental
Impairment) Act 1999,".
78. Section 28 amended (Findings, &c., of coroner
investigating a death)
Section 28(5) of the Principal Act is amended by
inserting "a secure mental health unit," after
"prison,".
169
s. 79 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
PART 4 - CORRECTIONS ACT 1997 AMENDED
79. Principal Act
In this Part, the Corrections Act 1997* is
referred to as the Principal Act.
80. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended by
inserting after the definition of "Secretary" the
following definition:
"secure mental health unit" has the same
meaning as in the Mental Health Act
1996;
81. Section 36 amended (Removal of prisoners and
detainees to other prisons and to hospitals, &c.)
Section 36(1) of the Principal Act is amended by
omitting "institution." and substituting
"institution other than a secure mental health
unit.".
82. Sections 36A and 36B inserted
After section 36 of the Principal Act, the
following sections are inserted in Part 5:
*No. 51 of 1997
170
2005 Mental Health Amendment (Secure No. s. 82
Mental Health Unit)
36A. Removal of prisoners and detainees to secure
mental health units
(1) In this section -
"Chief Forensic Psychiatrist" has the
same meaning as in the Mental
Health Act 1996;
"controlling authority" has the same
meaning as in the Mental Health
Act 1996;
"disability" means a restriction or
lack of ability to perform an
activity in a normal manner that -
(a) results from an absence,
loss or abnormality of
mental, psychological,
intellectual, cognitive,
physiological or
anatomical structure or
function; but
(b) is not a mental illness;
"Forensic Tribunal" has the same
meaning as in the Mental Health
Act 1996;
"mental illness" has the same
meaning as in the Mental Health
Act 1996.
(2) The Director may direct that a prisoner or
detainee who appears to be suffering
from a mental illness be removed from a
prison, or a hospital or institution to
which he or she has been removed under
171
s. 82 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
section 36, to a secure mental health unit
if -
(a) either -
(i) the Director determines
that it is in the best
interests of the prisoner or
detainee or other persons
in the prison, hospital or
institution for the prisoner
or detainee to be removed
to a secure mental health
unit; or
(ii) the prisoner or detainee
has requested that he or
she be removed to a
secure mental health unit;
and
(b) the Chief Forensic Psychiatrist is
satisfied that -
(i) the prisoner or detainee is
suffering from a mental
illness; and
(ii) the admission of the
prisoner or detainee is
necessary for his or her
care or treatment; and
(iii) adequate facilities and
staff exist at the secure
mental health unit for the
appropriate care and
treatment of the prisoner
or detainee.
172
2005 Mental Health Amendment (Secure No. s. 82
Mental Health Unit)
(3) The Director may direct that a prisoner or
detainee who has a disability be removed
from a prison, or a hospital or institution
to which he or she has been removed
under section 36, to a secure mental
health unit if -
(a) the Director considers that it is
necessary to so remove the
prisoner or detainee for his or her
own health, wellbeing or safety or
for the protection of other
persons; and
(b) the Director considers that
appropriate treatment, care,
rehabilitation or other services
cannot be provided in the prison,
or a hospital or institution to
which the prisoner or detainee
can be removed under section 36;
and
(c) the Chief Forensic Psychiatrist is
satisfied that -
(i) the admission of the
prisoner or detainee is
necessary for his or her
care or treatment; and
(ii) adequate facilities and
staff exist at the secure
mental health unit for the
appropriate care and
treatment of the prisoner
or detainee.
173
s. 82 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(4) If the Chief Forensic Psychiatrist is not
satisfied of the matters specified in
subsection (2)(b) or subsection (3)(c), the
Secretary, after considering the written
reasons of the Chief Forensic Psychiatrist
for not being so satisfied, may request
the Secretary of the responsible
Department in relation to the Mental
Health Act 1996 to review the decision of
the Chief Forensic Psychiatrist.
(5) If following a review of a decision
undertaken on a request made under
subsection (4) the Secretary of the
responsible Department in relation to the
Mental Health Act 1996 agrees to the
making of a direction under
subsection (2) or (3), the Director may
make that direction despite the matters
specified in subsection (2)(b) or (3)(c)
not being satisfied.
(6) A prisoner or detainee admitted to a
secure mental health unit under a
direction under subsection (3) may be
detained in the secure mental health unit
for no longer than the period specified in
the direction or, if the Secretary of the
responsible Department in relation to the
Mental Health Act 1996 has agreed on a
review under subsection (4) to the
making of the direction, no longer than
the period specified in that agreement.
(7) If at any time while a prisoner or
detainee admitted to a secure mental
health unit under a direction under
subsection (2) or (3) is so detained in that
174
2005 Mental Health Amendment (Secure No. s. 82
Mental Health Unit)
unit the Chief Forensic Psychiatrist
considers that the prisoner or detainee
would no longer benefit from being in
that unit, the Chief Forensic Psychiatrist
may require the Director to remove the
prisoner or detainee from that unit.
(8) The Director is to comply with a
requirement made under subsection (7).
(9) While a prisoner is detained in a secure
mental health unit following a direction
under subsection (2) or (3), including
while the prisoner is on authorised leave
from that secure mental health unit, that
prisoner is taken to be serving his or her
sentence of imprisonment.
36B. Appeal against direction under section 36A
(1) In this section -
"Forensic Tribunal" has the same
meaning as in the Mental Health
Act 1996.
(2) A prisoner or detainee may appeal to the
Forensic Tribunal in respect of -
(a) the making of a direction under
section 36A(2) or (3); or
(b) the failure to make such a
direction if the prisoner or
detainee has requested it under
section 36A(2)(a)(ii); or
(c) the requirement by the Chief
Forensic Psychiatrist under
section 36A(7) for the Director to
175
s. 82 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
remove the prisoner or detainee
from a secure mental health unit.
(3) The commencing of an appeal does not
affect the operation of the direction or
requirement appealed against.
(4) An appeal is to be heard and determined
by the Forensic Tribunal within 14 days.
(5) The Mental Health Act 1996 applies to
the hearing and determination of an
appeal, regardless of whether or not the
prisoner or detainee has a mental illness,
as if it were an appeal made under that
Act.
(6) On hearing an appeal, the Forensic
Tribunal may -
(a) revoke the direction or
requirement; or
(b) amend the direction or
requirement; or
(c) confirm the direction or
requirement; or
(d) require the Director to make a
direction under section 36A(2) or
(3).
(7) The Director must comply with a
requirement under subsection (6)(d) to
make a direction and a direction made in
compliance with that requirement is valid
despite the matters specified in
section 36A(2)(b) or (3)(c) not being
satisfied.
176
2005 Mental Health Amendment (Secure No. s. 83
Mental Health Unit)
(8) If the Forensic Tribunal revokes a
direction under section 36A(2) or (3) and
the prisoner or detainee is at that time in
a secure mental health unit, the Forensic
Tribunal is to direct the Director to
remove the prisoner or detainee from the
secure mental health unit as soon as may
be practicably arranged.
(9) The Director must comply with a
direction under subsection (8).
83. Section 39 amended (Effect of directions and orders
under sections 36, 36A, 36B, 37, 37A and 38)
Section 39(1) of the Principal Act is amended as
follows:
(a) by omitting "section 36, 37 or 38" and
substituting "section 36, 36A, 36B, 37,
37A or 38";
(b) by omitting from paragraph (b) "prison"
and substituting "prison, hospital, an
institution or a secure mental health
unit".
84. Section 40 amended (Custody of prisoners and
detainees removed pursuant to sections 36, 36A, 37,
37A and 38)
Section 40 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or secure
mental health unit" after "a prison";
177
s. 84 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) by omitting from subsection (1)
"section 36, 37 or 38" and substituting
"section 36, 37, 37A or 38";
(c) by inserting the following subsection
after subsection (1):
(1A) A prisoner or detainee who is
removed to a secure mental
health unit under section 36A -
(a) is in the legal custody of
the Director while being
removed to the secure
mental health unit or
returned to a prison on
discharge from the secure
mental health unit or
under a direction under
section 36B(8); but
(b) is not in the legal custody
of the Director while he
or she is in the secure
mental health unit or
otherwise in the custody
of the controlling
authority of a secure
mental health unit as
provided by the Mental
Health Act 1996.
(d) by omitting from subsection (2)(a)
"section 36, 37 or 38" and substituting
"section 36, 36A, 37, 37A or 38";
(e) by omitting from subsection (2)(b)
"place" and substituting "place, other
than a secure mental health unit,";
178
2005 Mental Health Amendment (Secure No. s. 85
Mental Health Unit)
(f) by inserting in subsection (2)(c) "or a
secure mental health unit" after
"paragraph (b)".
85. Section 72 amended (Release on parole)
Section 72 of the Principal Act is amended as
follows:
(a) by inserting in subsection (4)(g) "and, if
he or she has been in a secure mental
health unit, while in that secure mental
health unit" after "prison";
(b) by omitting from subsection (4)(j)
"prisoner" third occurring and
substituting "prisoner, including in the
case of a prisoner who is or has been a
forensic patient any report of the Chief
Forensic Psychiatrist";
(c) by omitting subsection (11) and
substituting the following subsection:
(11) In this section -
"Chief Forensic Psychiatrist"
has the same meaning as
in the Mental Health Act
1996;
"forensic patient" has the
same meaning as in the
Mental Health Act 1996;
"restriction order" means a
restriction order made
under the Criminal
179
s. 86 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
Justice (Mental
Impairment) Act 1999 or
Sentencing Act 1997;
"victims register" means a
register kept by the
Secretary in which a
victim of an offence in
respect of which the
offender has been
sentenced to a term of
imprisonment, or has been
made subject to a
restriction order, may
have his or her name
listed at his or her request.
86. Section 83BA inserted
After section 83B of the Principal Act, the
following section is inserted in Division 3:
83BA. Application of Part 8 to person in secure
mental health unit
This Part applies in respect of a sentence
of imprisonment which is being served,
or part of which is being served, in a
secure mental health unit.
180
2005 Mental Health Amendment (Secure No. s. 87
Mental Health Unit)
PART 5 - CRIMINAL CODE ACT 1924 AMENDED
87. Principal Act
In this Part, the Criminal Code Act 1924* is
referred to as the Principal Act.
88. Principal Act amended
Schedule 1 to the Principal Act is amended as
follows:
(a) by omitting paragraphs (d) and (da) from
section 106 and substituting the
following paragraphs:
(d) a restriction order made under the
Criminal Justice (Mental
Impairment) Act 1999 or any
other order under that Act that
commits a person to detention in
a secure mental health unit,
within the meaning of the Mental
Health Act 1996;
(da) a continuing care order made
under the Criminal Justice
(Mental Impairment) Act 1999;
(db) apprehension of a person under
section 31 of the Criminal Justice
(Mental Impairment) Act 1999;
*No. 69 of 1924
181
s. 88 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) by omitting paragraph (h) from section
106 and substituting the following
paragraph:
(h) a restriction order made under
section 75(1) of the Sentencing
Act 1997 or any other order under
that Act that commits a person to
detention in a secure mental
health unit, within the meaning of
the Mental Health Act 1996.
(c) by omitting section 348 and substituting
the following section:
348. On adjournment of trial accused may
be remanded, &c.
(1) In this section -
"Chief Forensic Psychiatrist"
means the Chief Forensic
Psychiatrist appointed
under section 11A of the
Mental Health Act 1996;
"secure mental health unit"
has the same meaning as
in the Mental Health Act
1996;
"specified" means specified in
an order under this section
that commits an accused
person to a secure mental
health unit.
(2) When a trial is adjourned, the
judge may -
182
2005 Mental Health Amendment (Secure No. s. 88
Mental Health Unit)
(a) direct the trial to be held
either at that or a later
sitting of the court; and
(b) either -
(i) remand the
accused person
accordingly; or
(ii) in a proper case,
admit the accused
person to bail and,
if necessary,
enlarge the
recognisances of
the witnesses.
(3) Instead of remanding the accused
person to a gaol or detention
centre, or to the custody of the
Director of Corrective Services or
the Secretary of the responsible
Department in relation to the
Youth Justice Act 1997, the judge
may commit him or her to a
secure mental health unit if -
(a) the judge considers that
remand is appropriate in
the circumstances; and
(b) the accused person
appears to be suffering
from a mental illness
within the meaning of the
Mental Health Act 1996;
and
183
s. 88 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(c) the judge considers that
the accused person should
be admitted to a secure
mental health unit for his
or her own health or
safety or for the
protection of others; and
(d) the Chief Forensic
Psychiatrist has provided
a report to the effect that -
(i) the admission of
the accused person
to the secure
mental health unit
is necessary for
his or her care or
treatment; and
(ii) adequate facilities
and staff exist at
the secure mental
health unit for the
appropriate care
and treatment of
the accused
person; and
(iii) in the case of an
accused person
who has not
attained the age of
18 years, the
secure mental
health unit is the
most appropriate
place available to
184
2005 Mental Health Amendment (Secure No. s. 88
Mental Health Unit)
accommodate him
or her in the
circumstances
having regard to
the objectives and
general principles
set out in sections
4 and 5 of the
Youth Justice Act
1997.
(4) Each of the following persons
may apply at any time to the
Supreme Court for the variation
or revocation of an order under
this section that commits an
accused person to a secure mental
health unit:
(a) the Director of Public
Prosecutions;
(b) the Secretary of the
responsible Department in
relation to the Mental
Health Act 1996;
(c) the Chief Forensic
Psychiatrist;
(d) the accused person.
(5) The Chief Forensic Psychiatrist
must apply to the Supreme Court
for the revocation of an order
under this section that commits
an accused person to a secure
mental health unit if the Chief
Forensic Psychiatrist is of the
185
s. 88 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
opinion that the accused person
no longer requires such treatment
or would no longer benefit from
such treatment.
(6) On hearing an application, the
judge -
(a) may vary, revoke or
confirm the order
committing the accused
person to a secure mental
health unit; and
(b) if the judge revokes the
order, may make any
other order he or she
could have made under
this section.
(7) An application is to be heard and
determined within 14 days after it
is made.
(8) The Secretary of the responsible
Department in relation to the
Mental Health Act 1996 may
delegate his or her power under
subsection (4)(b) to apply for the
variation or revocation of an
order under this section.
(9) If a judge makes an order under
this section that commits a person
to a secure mental health unit -
(a) the judge is to specify in
the order that the
specified person, or a
186
2005 Mental Health Amendment (Secure No. s. 88
Mental Health Unit)
person of the specified
class of person, is to be
responsible for taking the
accused person to the
specified secure mental
health unit; and
(b) the judge may specify in
the order that that or
another specified person,
or a person of that or
another specified class of
person, is to be
responsible for bringing
the accused person from
the specified secure
mental health unit before
the Court in connection
with the exercise by the
Court of its powers under
this Act.
(10) A copy of an order under this
section that commits an accused
person to a secure mental health
unit and the report of the Chief
Forensic Psychiatrist are to
accompany the accused person to
the specified secure mental health
unit.
(11) While an accused person is the
responsibility of a person as
specified in an order that commits
the accused person to a secure
mental health unit, that person -
187
s. 88 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(a) has the custody of the
accused person; and
(b) the accused person is
taken to be a forensic
patient for the purposes of
the application of relevant
provisions of Part 10A of
the Mental Health Act
1996.
(12) A judge may make such orders as
to the distribution and security of
the report provided by the Chief
Forensic Psychiatrist as he or she
considers necessary or
appropriate.
(13) Unless a judge orders otherwise,
the Chief Forensic Psychiatrist
must give, as soon as practicable,
a copy of his or her report to -
(a) the prosecutor; and
(b) the legal practitioner
representing the accused
person or, if the accused
person is unrepresented,
the accused person.
(14) The prosecution or the defence
may dispute the whole or any part
of the report of the Chief Forensic
Psychiatrist.
(15) If the whole or any part of the
report of the Chief Forensic
Psychiatrist is disputed, a judge
188
2005 Mental Health Amendment (Secure No. s. 88
Mental Health Unit)
must not take into consideration
the report or part in dispute unless
the party disputing the report or
part has had the opportunity -
(a) to lead evidence on the
disputed matters; and
(b) to cross-examine on the
disputed matters the Chief
Forensic Psychiatrist or, if
the Chief Forensic
Psychiatrist has delegated
his or her function of
writing the report, the
author of the report.
189
s. 89 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
PART 6 - CRIMINAL JUSTICE (MENTAL
IMPAIRMENT) ACT 1999 AMENDED
89. Principal Act
In this Part, the Criminal Justice (Mental
Impairment) Act 1999* is referred to as the
Principal Act.
90. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definition
before the definition of "authorised
person":
"approved hospital" has the same
meaning as in the Mental Health
Act 1996;
(b) by omitting "Attorney-General" from the
definition of "authorised person" and
substituting "Chief Forensic
Psychiatrist";
(c) by inserting the following definitions
after the definition of "authorised
person":
"Chief Forensic Psychiatrist" has the
same meaning as in the Mental
Health Act 1996;
*No. 21 of 1999
190
2005 Mental Health Amendment (Secure No. s. 90
Mental Health Unit)
"community treatment order" has
the meaning given by
section 31C;
"continuing care order" has the
meaning given by section 31B;
(d) by inserting the following definitions
after the definition of "Director":
"forensic order" means a restriction
order or supervision order;
"Forensic Tribunal" means the
Forensic Tribunal established
under section 73T of the Mental
Health Act 1996;
(e) by omitting the definitions of
"responsible medical officer",
"restriction order" and "special facility"
and substituting the following
definitions:
"restriction order" has the meaning
given by section 24;
"secure mental health unit" has the
same meaning as in the Mental
Health Act 1996;
(f) by omitting the definition of "supervision
order" and substituting the following
definition:
"supervision order" has the meaning
given by section 29A;
191
s. 91 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
91. Section 4 amended (Application of Act)
Section 4(2) of the Principal Act is amended by
inserting "and a supervision order" after "order".
92. Sections 6 and 7 repealed
Sections 6 and 7 of the Principal Act are
repealed.
93. Section 18 amended (Effect of findings)
Section 18 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsections:
(2) If a defendant is found not guilty of the
offence charged on the ground of
insanity or on a finding being made to
that effect, or a finding cannot be made
that the defendant is not guilty of an
offence, the court is to -
(a) make a restriction order; or
(b) release the defendant and make a
supervision order; or
(c) make a continuing care order; or
(d) release the defendant and make a
community treatment order; or
(e) release the defendant on such
conditions as the court considers
appropriate; or
192
2005 Mental Health Amendment (Secure No. s. 94
Mental Health Unit)
(f) release the defendant
unconditionally.
(3) Despite subsection (2), only the Supreme
Court may make a restriction order or
supervision order under that subsection.
94. Section 21 substituted
Section 21 of the Principal Act is repealed and
the following sections are substituted:
21. Procedure for dealing with persons found
not guilty by reason of insanity
(1) On a verdict that a person is not guilty of
an offence on the ground of insanity or
on a finding being made to that effect,
the court is to -
(a) make a restriction order; or
(b) release the defendant and make a
supervision order; or
(c) make a continuing care order; or
(d) release the defendant and make a
community treatment order; or
(e) release the defendant on such
conditions as the court considers
appropriate; or
(f) release the defendant
unconditionally.
193
s. 95 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(2) Despite subsection (1), only the Supreme
Court may make a restriction order or
supervision order under that subsection.
21A. Referral of matter of forensic order to
Supreme Court
(1) If a magistrate is of the opinion, after
taking into account the matters required
to be considered in determining the order
to be made, that a forensic order should
be made in respect of a defendant, the
magistrate may refer the matter to the
Supreme Court for determination.
(2) On the referral of a matter to the
Supreme Court under subsection (1) -
(a) the Supreme Court must enquire
into the circumstances of the
case; and
(b) the Supreme Court has the same
powers to deal with the defendant
as if the defendant had been dealt
with in the Supreme Court.
95. Part 4: Heading amended
Part 4 of the Principal Act is amended by
omitting "SUPERVISION" from the heading to
that Part and substituting "FORENSIC
ORDERS, CONTINUING CARE ORDERS
AND COMMUNITY TREATMENT
ORDERS".
194
2005 Mental Health Amendment (Secure No. s. 96
Mental Health Unit)
96. Section 22 amended (Interpretation: Part 4)
Section 22 of the Principal Act is amended by
omitting "restriction order" from the definition
of "defendant" and substituting "forensic order,
continuing care order or community treatment
order".
97. Part 4, Division 2 repealed
Division 2 of Part 4 of the Principal Act is
repealed.
98. Sections 24 and 25 substituted
Sections 24 and 25 of the Principal Act are
repealed and the following section is substituted:
24. Restriction orders
A restriction order is an order requiring
the person to whom it applies to be
admitted to and detained in a secure
mental health unit until the order is
discharged by the Supreme Court.
99. Section 26 amended (Discharge of restriction
orders)
Section 26 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "person
who is detained under a restriction order"
and substituting "defendant subject to a
195
s. 100 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
restriction order, the Secretary of the
responsible Department in relation to the
Mental Health Act 1996 or the Chief
Forensic Psychiatrist";
(b) by inserting in subsection (1)
"restriction" after "discharge of the";
(c) by omitting paragraph (a) from
subsection (3) and substituting the
following paragraph:
(a) an application is to be in writing
with a copy served on the
Director of Public Prosecutions
and, if the defendant is not the
applicant, on the defendant; and
(d) by omitting from subsection (3)(c)
"applicant" and substituting "defendant";
(e) by omitting from subsection (3)(g)
"Director" and substituting "Chief
Forensic Psychiatrist";
(f) by omitting from subsection (3)(g)
"applicant" and substituting "defendant";
(g) by omitting from subsection (4)
"applicant" and substituting "applicant,
the defendant".
100. Sections 27 and 28 substituted
Sections 27 and 28 of the Principal Act are
repealed and the following section is substituted:
196
2005 Mental Health Amendment (Secure No. s. 101
Mental Health Unit)
27. Powers of Supreme Court on discharge of
restriction order
If the Supreme Court discharges a
restriction order, it may make any other
order in respect of the defendant that it
could have made under section 18(2) or
21.
101. Section 29 amended (Subsequent fitness for trial of
person subject to continuing care order or forensic
order)
Section 29 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a)
"section 23(d)" and substituting
"section 18(2)";
(b) by inserting in subsection (2)(a) "or
supervision order" after "order";
(c) by omitting from subsection (2)(a)
"section 24" and substituting
"section 18(2)";
(d) by omitting from subsection (2)(b)
"responsible medical officer" and
substituting "Chief Forensic
Psychiatrist";
(e) by omitting from subsection (2)
"responsible medical officer" second
occurring and substituting "Chief
Forensic Psychiatrist";
197
s. 101 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(f) by inserting the following subsection
after subsection (3):
(3A) If the Attorney-General
determines under
subsection (3)(b) that no further
proceedings are to be taken
against the defendant, he or she is
to -
(a) request the court before
which the defendant was
found to be unfit to stand
trial to dismiss the
proceedings against the
defendant and discharge
the continuing care order,
restriction order or
supervision order; and
(b) notify the following
persons of that
determination:
(i) the defendant;
(ii) the controlling
authority, within
the meaning of the
Mental Health Act
1996, of the
approved hospital
in which the
defendant is
detained if the
defendant is
subject to a
continuing care
order;
198
2005 Mental Health Amendment (Secure No. s. 102
Mental Health Unit)
(iii) the Chief Forensic
Psychiatrist if the
defendant is
subject to a
restriction order or
supervision order.
(g) by omitting from subsection (5) "the
continuing care order or the restriction
order" and substituting "or discharge the
continuing care order, restriction order or
supervision order";
(h) by inserting the following subsection
after subsection (5):
(6) On receipt of a request from the
Attorney-General under
subsection (3A)(a), the
appropriate court must -
(a) dismiss the proceedings
against the defendant; and
(b) revoke or discharge the
continuing care order,
restriction order or
supervision order.
102. Section 29A inserted
Before section 30 of the Principal Act, the
following section is inserted in Division 5:
29A. Supervision orders
(1) A supervision order is an order releasing
the person to whom it applies under the
199
s. 102 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
supervision of the Chief Forensic
Psychiatrist and on such conditions as to
the supervision of that person and such
other conditions as the court considers
appropriate.
(2) Without limiting the conditions that may
be specified in a supervision order, such
conditions may include any one or more
of the following conditions:
(a) a condition requiring the
defendant to take medication or
submit to the administration of
medical treatment as specified in
the order or as determined by the
Chief Forensic Psychiatrist;
(b) a condition requiring the
defendant to comply with any
directions as to supervision given
by the Chief Forensic
Psychiatrist.
(3) If a defendant who is subject to a
supervision order notifies the person
responsible for his or her medical
treatment that he or she objects to taking
medication or the administration of
medical treatment as required by or
under the order, that person or the Chief
Forensic Psychiatrist is to notify the
Forensic Tribunal, in writing, of that
objection within 7 days.
(4) Section 38 of the Guardianship and
Administration Act 1995 does not apply
in respect of the taking of medication by,
or the administration of medical
200
2005 Mental Health Amendment (Secure No. s. 103
Mental Health Unit)
treatment to, a defendant if the defendant
takes the medication or submits to the
administration of the medical treatment
in compliance with a supervision order
even though the defendant objects to
doing so.
103. Section 30 amended (Variation or revocation of
supervision order)
Section 30 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "court
that made the order may, on the
application of the Attorney-General," and
substituting "Supreme Court may, on the
application of the Secretary of the
responsible Department in relation to the
Mental Health Act 1996, the Chief
Forensic Psychiatrist,";
(b) by omitting from subsection (1) "court"
second occurring and substituting
"Supreme Court";
(c) by omitting from subsection (1) "this
Part" and substituting "section 18(2) or
21";
(d) by omitting from subsection (3) "a court"
and substituting "the Supreme Court";
(e) by omitting from subsection (3) "court"
second occurring and substituting
"Supreme Court";
201
s. 103 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(f) by inserting the following subsections
after subsection (3):
(4) Before determining an
application, the Supreme Court
may order the Chief Forensic
Psychiatrist, the controlling
authority of a secure mental
health unit or any other person or
body to provide a report in
respect of the matters specified in
the order.
(5) For the purposes of a report, the
defendant is to make himself or
herself available for examination
as required by the Chief Forensic
Psychiatrist, the controlling
authority of a secure mental
health unit or the person or body
providing the report.
(6) The Chief Forensic Psychiatrist,
the controlling authority of a
secure mental health unit or the
person or body who provides a
report is to provide a copy of it to
the applicant, defendant and
Director of Public Prosecutions as
soon as practicable.
(7) For the purposes of a hearing by
the Supreme Court for the
variation or revocation of a
supervision order -
(a) an application is to be in
writing with a copy
served on the Director of
202
2005 Mental Health Amendment (Secure No. s. 103
Mental Health Unit)
Public Prosecutions and,
if the defendant is not the
applicant, on the
defendant; and
(b) the Director of Public
Prosecutions or counsel
representing the Director
of Public Prosecutions
must appear for the
Crown at the hearing of
the application; and
(c) the defendant may be
present at the hearing of
the application unless the
Court makes an order to
the contrary; and
(d) the applicant, the
defendant and the
Director of Public
Prosecutions may call
evidence in support of, or
in opposition to, the
application; and
(e) if a party causes a report
to be prepared relating to
the application and
intends to tender the
report as evidence, that
party must provide each
other party with a copy of
the report; and
(f) if a party puts any such
report in evidence -
203
s. 104 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(i) each other party is
entitled to cross-
examine the
person who made
the report; and
(ii) the party who put
the report in
evidence may,
after any such
cross-examination,
examine the
person making the
report by way of
reply; and
(g) the Court may order the
Chief Forensic
Psychiatrist or any other
person or body to prepare
and submit to the Court a
report in respect of such
matters relating to the
defendant as the Court
may specify.
104. Section 31 substituted
Section 31 of the Principal Act is repealed and
the following sections are substituted:
31. Apprehension of defendant under
supervision order
(1) In this section -
"prescribed person" means -
204
2005 Mental Health Amendment (Secure No. s. 104
Mental Health Unit)
(a) the Chief Forensic Psychiatrist; or
(b) a person who administers, or
assists in the administration of,
medical treatment to the
defendant under a supervision
order; or
(c) a person who is authorised by the
Chief Forensic Psychiatrist to
supervise, wholly or partly, the
administration of a supervision
order in respect of the defendant;
or
(d) an authorised person; or
(e) an authorised officer within the
meaning of the Mental Health Act
1996; or
(f) a police officer.
(2) A prescribed person may apprehend a
defendant who is subject to a supervision
order if the prescribed person believes on
reasonable grounds -
(a) that -
(i) the defendant has
contravened, or is likely
to contravene, the
supervision order; or
(ii) there has been, or is likely
to be, a serious
deterioration in the
defendant's mental health;
and
205
s. 104 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) that, because of the breach or
likely breach of the supervision
order or the deterioration or likely
deterioration in the defendant's
mental health, there is a risk that
the defendant will harm himself,
herself or another person.
(3) As soon as practicable after
apprehending a defendant under
subsection (2), the prescribed person is
to -
(a) notify the Chief Forensic
Psychiatrist of the apprehension;
and
(b) take the defendant to a secure
mental health unit.
(4) If after apprehending a defendant under
subsection (2) it is not possible or
practicable to take him or her to a secure
mental health unit immediately, the
prescribed person may take the defendant
to an approved hospital where he or she
is to be admitted and treated as an
involuntary patient, within the meaning
of the Mental Health Act 1996, until such
time as he or she can be transferred to a
secure mental health unit.
(5) When apprehending a defendant, taking
him or her to a secure mental health unit
or an approved hospital or transferring
him or her to a secure mental health unit
under this section, a prescribed person
may -
206
2005 Mental Health Amendment (Secure No. s. 104
Mental Health Unit)
(a) be assisted by such persons as he
or she considers appropriate; and
(b) use such restraint and force as the
prescribed person believes
appropriate in the circumstances;
and
(c) enter, without warrant, any
premises or part of premises in
which the prescribed person
reasonably believes the defendant
is present.
(6) A secure mental health unit to which a
defendant is taken under subsection (3) is
to admit the defendant and may detain
the defendant in the unit -
(a) for a period not exceeding 24
hours; and
(b) if the Chief Forensic Psychiatrist
authorises it, for one further
period not exceeding 72 hours;
and
(c) if the Forensic Tribunal
authorises it, for one or more
further periods each of a length to
be determined by the Forensic
Tribunal.
(7) Despite subsection (6), if -
(a) within a period referred to in
paragraph (a) or (b) of that
subsection an application is made
to the Forensic Tribunal for an
207
s. 104 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
extension of the period for which
a defendant may be detained
under that subsection; and
(b) a member of the Forensic
Tribunal authorises it -
the defendant may be detained in the
secure mental health unit until the
application is determined by the Forensic
Tribunal.
(8) Despite subsection (6), if within any
period for which a defendant may be
detained under that subsection an
application is made to the Supreme Court
under section 30 to vary or revoke the
supervision order in respect of the
defendant, the defendant may be detained
in a secure mental health unit until the
Court has determined the application.
(9) While a defendant is being detained in an
approved hospital or secure mental health
unit under this section, the supervision
order is suspended.
31A. Suspension of supervision order while
defendant imprisoned
If a defendant is sentenced to a term of
imprisonment for an offence while
subject to a supervision order, the
supervision order is suspended while the
defendant is in prison serving the term of
imprisonment.
208
2005 Mental Health Amendment (Secure No. s. 105
Mental Health Unit)
105. Part 4, Division 5A inserted
After section 31A of the Principal Act, the
following Division is inserted in Part 4:
Division 5A - Continuing care orders and community
treatment orders
31B. Continuing care orders
(1) A continuing care order is an order for
the detention of the defendant as an
involuntary patient in the approved
hospital specified in the order for the
term not exceeding 6 months specified in
the order.
(2) Once made, a continuing care order is
taken to be a continuing care order made
under section 28 of the Mental Health
Act 1996.
31C. Community treatment orders
(1) In this section -
"specified" means specified in a
community treatment order.
(2) A community treatment order is an
order -
(a) requiring the defendant to take or
submit to the administration of
medical treatment as specified or
as decided by a specified medical
practitioner or a medical
209
s. 106 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
practitioner of a specified class;
or
(b) requiring the defendant to attend
as an outpatient at a specified
treatment centre at specified
intervals or as directed by a
specified medical practitioner or a
medical practitioner of a specified
class; or
(c) requiring the defendant to comply
with other specified requirements
or other requirements decided by
a specified medical practitioner,
another specified person or a
medical practitioner or other
person of a specified class -
for the term, not exceeding one year,
specified in the order.
(3) Once made, a community treatment order
is taken to be a community treatment
order made under Division 2 of Part 7 of
the Mental Health Act 1996.
106. Section 34 substituted
Section 34 of the Principal Act is repealed and
the following section is substituted:
34. Principle on which courts are to act
A court is to apply, where appropriate,
the principle that restrictions on the
defendant's freedom and personal
autonomy should be kept to the
210
2005 Mental Health Amendment (Secure No. s. 107
Mental Health Unit)
minimum consistent with the safety of
the community when determining -
(a) which order to make under
section 18(2) or 21(1) or this Part;
or
(b) whether to discharge or vary such
an order; or
(c) the conditions of such an order.
107. Section 35 amended (Matters to which courts are to
have regard)
Section 35(2) of the Principal Act is amended as
follows:
(a) by inserting "section 18(2) or 21(1) or"
after "defendant under";
(b) by omitting from paragraph (a) "at least 2
psychiatrists," and substituting "the Chief
Forensic Psychiatrist, or a psychiatrist
nominated by the Chief Forensic
Psychiatrist, and one other psychiatrist,".
108. Section 36 amended (Appeals)
Section 36(2) of the Principal Act is amended by
omitting "Attorney-General" and substituting
"Attorney-General, the Secretary of the
responsible Department in relation to the Mental
Health Act 1996".
211
s. 109 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
109. Part 4, Division 8: Heading amended
Division 8 of Part 4 of the Principal Act is
amended by omitting "restriction" from the
heading to that Division and substituting
"forensic".
110. Section 37 substituted
Section 37 of the Principal Act is repealed and
the following section is substituted:
37. Review of persons detained under forensic
orders
(1) A forensic order is to be reviewed under
the Mental Health Act 1996 by the
Forensic Tribunal within 12 months after
the order was made and at least once in
each period of 12 months afterwards.
(2) In reviewing a forensic order, the
Forensic Tribunal is to apply the
principle in section 34 and to have regard
to the matters set out in section 35(1).
(3) If the Forensic Tribunal, on review,
determines that a forensic order is no
longer warranted or that the conditions of
the order are now inappropriate -
(a) the Tribunal must issue the
defendant with a certificate to
that effect; and
(b) the defendant may apply
immediately, despite any other
provision of this Act, to the
212
2005 Mental Health Amendment (Secure No. s. 110
Mental Health Unit)
Supreme Court for discharge,
revocation or variation of the
forensic order.
(4) If the Forensic Tribunal issues a
certificate in respect of the discharge of a
restriction order, the certificate may
include the recommendation of the
Tribunal that, should the order be
discharged -
(a) a supervision order, continuing
care order or community
treatment order be made in
respect of the defendant; or
(b) the defendant be released either
unconditionally or on the
conditions specified in the
recommendation.
(5) If the Forensic Tribunal issues a
certificate in respect of the revocation of
a supervision order, the certificate may
include the recommendation of the
Tribunal that, should the order be
revoked -
(a) a continuing care order or
community treatment order be
made in respect of the defendant;
or
(b) the defendant be released either
unconditionally or on the
conditions specified in the
recommendation.
213
s. 111 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(6) If the Forensic Tribunal, on review,
issues a certificate in respect of the
variation of the conditions of a
supervision order, the certificate may
include the recommendations of the
Tribunal as to what conditions should be
included in the order.
(7) If the Forensic Tribunal, on review,
determines that a supervision order
should be revoked and that, instead, a
restriction order should made in respect
of the defendant, the Forensic Tribunal is
to -
(a) recommend to the Secretary of
the responsible Department in
relation to the Mental Health Act
1996 that he or she make an
application under section 30(1)
for the revocation of the
supervision order and the making
of the restriction order; and
(b) provide a copy of that
recommendation to the defendant.
111. Section 39 amended (Power of court to deal with
defendant before proceedings completed)
Section 39 of the Principal Act is amended as
follows:
(a) by omitting paragraphs (a), (b), (c) and
(d) from subsection (1) and substituting
the following paragraphs:
(a) admit the defendant to bail -
214
2005 Mental Health Amendment (Secure No. s. 111
Mental Health Unit)
(i) on condition that he or
she will appear
subsequently for the
purposes of the
investigation; and
(ii) on any other condition
that the court considers
appropriate; or
(b) if the court considers that it
would not be appropriate to admit
the defendant to bail -
(i) remand the defendant in
custody; or
(ii) order that the defendant
be detained in a secure
mental health unit; or
(iii) make any other order that
the court thinks
appropriate for the
custody or detention of
the defendant.
(b) by inserting the following subsections
after subsection (1):
(1A) A court may only make an order
that the defendant be detained in
a secure mental health unit if -
(a) the defendant appears to
be suffering from a
mental illness within the
meaning of the Mental
Health Act 1996; and
215
s. 111 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) the court considers that
the defendant should be
admitted to a secure
mental health unit for his
or her own health or
safety or for the
protection of others; and
(c) the Chief Forensic
Psychiatrist has provided
a report to the effect that -
(i) the admission of
the defendant to
the secure mental
health unit is
necessary for his
or her care or
treatment; and
(ii) adequate facilities
and staff exist at
the secure mental
health unit for the
appropriate care
and treatment of
the defendant; and
(iii) in the case of a
defendant who has
not attained the
age of 18 years,
the secure mental
health unit is the
most appropriate
place available to
accommodate him
or her in the
216
2005 Mental Health Amendment (Secure No. s. 111
Mental Health Unit)
circumstances
having regard to
the objectives and
general principles
set out in sections
4 and 5 of the
Youth Justice Act
1997.
(1B) When making an order under
subsection (1), the court may
make any other order it considers
appropriate including, but not
limited to -
(a) an order requiring the
production of a report in
relation to the defendant's
fitness to stand trial and
his or her medical,
psychological or
psychiatric condition; and
(b) an order requiring the
defendant to submit to an
assessment for the
purposes of a report
referred to in paragraph
(a); and
(c) an order giving directions
in relation to the nature
and means of obtaining
the assessment referred to
in paragraph (b); and
(d) an order allowing the
person who is required to
produce a report access to
217
s. 112 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
the defendant's medical
records with or without
the defendant's consent.
(1C) If the court under this section
orders the production of a report
of any kind in relation to the
defendant, the person producing
the report is to provide a copy of
it to both the defendant and
prosecutor unless the court orders
otherwise.
112. Sections 39A, 39B and 39C inserted
After section 39 of the Principal Act, the
following sections are inserted in Part 5:
39A. Limitation on making certain orders in
respect of youth
A court may not make a restriction order
or any other order under this Act that
commits a person who has not attained
the age of 18 years to a secure mental
health unit unless the court has received a
report from the Chief Forensic
Psychiatrist to the effect that -
(a) adequate facilities and staff exist
at the secure mental health unit
for the appropriate care and
treatment of the person; and
(b) the secure mental health unit is
the most appropriate place
available to accommodate the
youth in the circumstances.
218
2005 Mental Health Amendment (Secure No. s. 112
Mental Health Unit)
39B. Report of Chief Forensic Psychiatrist
(1) In this section -
"defendant" includes a person who is
subject to a restriction order or
any other order under this Act
that commits a person to, or
otherwise requires the detention
of a person in, a secure mental
health unit.
(2) If a court requires a report from the Chief
Forensic Psychiatrist or is provided with
a report by the Chief Forensic
Psychiatrist in relation to a defendant, the
court may make such orders as to the
distribution and security of the report
provided as it considers necessary or
appropriate.
(3) Unless the court orders otherwise, the
Chief Forensic Psychiatrist must give, as
soon as practicable, a copy of any report
referred to in subsection (2) to -
(a) the prosecutor; and
(b) the legal practitioner representing
the defendant or, if the defendant
is unrepresented, the defendant.
(4) The prosecution or the defence may
dispute the whole or any part of the
report of the Chief Forensic Psychiatrist.
(5) If the whole or any part of the report of
the Chief Forensic Psychiatrist is
disputed, the court must not take into
219
s. 112 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
consideration the report or part in dispute
unless the party disputing the report or
part has had the opportunity -
(a) to lead evidence on the disputed
matters; and
(b) to cross-examine on the disputed
matters the Chief Forensic
Psychiatrist or, if the Chief
Forensic Psychiatrist has
delegated his or her function of
writing the report, the author of
the report.
39C. Custody on making of order committing
defendant to secure mental health unit
(1) In this section -
"defendant" means a person who is
subject to a restriction order or
any other order under this Act
that commits a person to, or
otherwise requires the detention
of a person in, a secure mental
health unit;
"specified" means specified in a
restriction order or any other
order under this Act that commits
a person to, or otherwise requires
the detention of a person in, a
secure mental health unit.
(2) If a court makes a restriction order or any
other order under this Act that commits a
defendant to, or otherwise requires the
220
2005 Mental Health Amendment (Secure No. s. 112
Mental Health Unit)
detention of a person in, a secure mental
health unit -
(a) the court is to specify in the order
that the specified person, or a
person of the specified class of
person, is to be responsible for
taking the defendant to the
specified secure mental health
unit; and
(b) the court may specify in the order
that the specified person or
another specified person, or a
person of the specified class or
another specified class of person,
is to be responsible for bringing
the defendant from the specified
secure mental health unit before
the court in connection with the
exercise by the court of its
powers under this Act.
(3) A copy of the restriction order or other
order that commits a defendant to, or
otherwise requires the detention of the
defendant in, a secure mental health unit
and any report of the Chief Forensic
Psychiatrist or other medical practitioner
relevant to the decision of the Court to
make the order are to accompany the
defendant to the specified secure mental
health unit.
(4) While a defendant is the responsibility of
a person as specified in a restriction order
or other order that commits the defendant
to, or otherwise requires the detention of
221
s. 113 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
the defendant in, a secure mental health
unit -
(a) that person has the custody of the
defendant; and
(b) the defendant is taken to be in
detention for the purposes of
section 41.
113. Section 41 amended (Arrest of person escaping
from detention or absent without leave)
Section 41 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1B) "within
the meaning of the Mental Health Act
1996";
(b) by omitting from subsection (1B)(a)
"within the meaning of that Act";
(c) by omitting from subsection (2) "or
magistrate" twice occurring;
(d) by inserting in subsection (2) "and has
left the State" after "the order".
114. Section 41A inserted
After section 41 of the Principal Act, the
following section is inserted in Part 5:
222
2005 Mental Health Amendment (Secure No. s. 115
Mental Health Unit)
41A. Delegations by Secretary of responsible
Department in relation to Mental Health Act
1996 and Chief Forensic Psychiatrist
(1) The Secretary of the responsible
Department in relation to the Mental
Health Act 1996 may delegate any of his
or her functions and powers under this
Act, other than this power of delegation.
(2) The Chief Forensic Psychiatrist may
delegate any of his or her functions and
powers under this Act, other than this
power of delegation.
115. Section 42A inserted
After section 42 of the Principal Act, the
following section is inserted in Part 5:
42A. Provision of reports to certain persons
(1) In this section -
"defendant" includes a person who is
subject to a forensic order,
continuing care order or
community treatment order.
(2) On the application of any of the
following persons, that person may be
provided with a copy of any report in
respect of a defendant which is provided
to a court under this Act:
(a) the controlling authority of a
secure mental health unit if the
223
s. 116 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
defendant is admitted to the
secure mental health unit;
(b) the Chief Forensic Psychiatrist if
the defendant is subject to a
forensic order;
(c) the Director if the defendant is
remanded to a prison;
(d) the controlling authority of an
approved hospital if the defendant
is admitted to the approved
hospital;
(e) the Secretary of the responsible
Department in relation to the
Mental Health Act 1996 if a
community treatment order has
been made in respect of the
defendant.
116. Sections 43 and 44 substituted
Sections 43 and 44 of the Principal Act are
repealed and the following sections are
substituted:
43. Regulations
(1) The Governor may make regulations for
the purposes of this Act.
(2) The regulations may contain provisions
of a savings or transitional nature
consequent on the enactment of any Act
that amends this Act.
224
2005 Mental Health Amendment (Secure No. s. 116
Mental Health Unit)
(3) Regulations made under subsection (2)
may take effect on the day on which the
Act amending this Act commences or a
later day as specified in the regulations,
whether the day so specified is before, on
or after the day on which the regulations
are made.
44. Savings and transitional provisions
consequent on the enactment of the Mental
Health Amendment (Secure Mental Health
Unit) Act 2005
(1) In this section -
"commencement day" means the day
on which the Mental Health
Amendment (Secure Mental
Health Unit) Act 2005
commences;
"former Act" means this Act as in
force immediately before the
commencement day.
(2) Where appropriate, an order made under
the former Act that is in force
immediately before the commencement
day continues in effect in accordance
with its terms and is taken to have been
made under this Act.
(3) A supervision order made under the
former Act by a court other than the
Supreme Court and in force immediately
before the commencement day is taken to
have been made by the Supreme Court
under this Act.
225
s. 116 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(4) The Forensic Tribunal is to review a
restriction order or supervision order
made under the former Act under
section 37 but the first review is to be
undertaken at a time to be determined by
the Forensic Tribunal.
(5) For the purposes of subsection (4), the
Forensic Tribunal is not limited to
determining, for the undertaking of the
first review of the restriction order or
supervision order, a time that is within
the period of 12 months commencing on
the commencement day.
226
2005 Mental Health Amendment (Secure No. s. 117
Mental Health Unit)
PART 7 - FORENSIC PROCEDURES ACT 2000
AMENDED
117. Principal Act
In this Part, the Forensic Procedures Act 2000*
is referred to as the Principal Act.
118. Section 26 amended (Non-intimate forensic
procedure on order of police officer)
Section 26(3)(a) of the Principal Act is amended
by inserting "or a secure mental health unit,
within the meaning of the Mental Health Act
1996," after "prison".
119. Section 28 amended (Forensic procedure carried
out in prison, &c.)
Section 28(1)(a) of the Principal Act is amended
by inserting "or secure mental health unit, within
the meaning of the Mental Health Act 1996,"
after "prison".
*No. 101 of 2000
227
s. 120 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
PART 8 - GUARDIANSHIP AND ADMINISTRATION
ACT 1995 AMENDED
120. Principal Act
In this Part, the Guardianship and
Administration Act 1995* is referred to as the
Principal Act.
121. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by
inserting "and power" after "duty" in the
definition of "function".
122. Part 6, Division 2A inserted
After section 46 of the Principal Act, the
following Division is inserted in Part 6:
Division 2A - Power to make guardianship order or
administration order
46A. Power to make guardianship order or
administration order
At the hearing of an application under
this Part for the consent of the Board to
the carrying out of medical or dental
treatment on a person, the Board, in
addition to giving or refusing that
consent, may make under section 65 a
guardianship order or an administration
*No. 44 of 1995
228
2005 Mental Health Amendment (Secure No. s. 123
Mental Health Unit)
order, or both, if satisfied of the matters
specified in section 20(1) or
section 51(1), or both those sections.
123. Schedule 1 amended (Members of Board)
Clause 4 of Schedule 1 to the Principal Act is
amended by omitting "functions," and
substituting "functions under this or any other
Act,".
229
s. 124 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
PART 9 - JUSTICES ACT 1959 AMENDED
124. Principal Act
In this Part, the Justices Act 1959* is referred to
as the Principal Act.
125. Section 47 substituted
Section 47 of the Principal Act is repealed and
the following section is substituted:
47. Place of committal when defendant on
remand
(1) In this section -
"Chief Forensic Psychiatrist" means
the person appointed as Chief
Forensic Psychiatrist under
section 11A of the Mental Health
Act 1996;
"mental illness" has the same
meaning as in the Mental Health
Act 1996;
"specified" means specified in an
order under this section that
commits a defendant to a secure
mental health unit.
(2) Where justices have power to remand a
defendant in custody, they may, instead
of committing the defendant to a gaol,
*No. 77 of 1959
230
2005 Mental Health Amendment (Secure No. s. 125
Mental Health Unit)
commit him or her to a secure mental
health unit if -
(a) the justices consider that remand
is appropriate in the
circumstances; and
(b) the defendant appears to be
suffering from a mental illness;
and
(c) the justices consider that the
defendant should be admitted to a
secure mental health unit for his
or her own health or safety or for
the protection of others; and
(d) the Chief Forensic Psychiatrist
has provided a report to the effect
that -
(i) the admission of the
defendant to the secure
mental health unit is
necessary for his or her
care or treatment; and
(ii) adequate facilities and
staff exist at the secure
mental health unit for the
appropriate care and
treatment of the
defendant; and
(iii) in the case of a defendant
who has not attained the
age of 18 years, the secure
mental health unit is the
most appropriate place
231
s. 125 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
available to accommodate
him or her in the
circumstances having
regard to the objectives
and general principles set
out in sections 4 and 5 of
the Youth Justice Act
1997.
(3) If justices make an order under this Act
that commits a person to a secure mental
health unit -
(a) the justices are to specify in the
order that the specified person, or
a person of a specified class, is to
be responsible for taking the
defendant to the specified secure
mental health unit; and
(b) the justices may specify in the
order that the specified person or
another specified person, or a
person of the specified class or
another class of person, is to be
responsible for bringing the
defendant from the specified
secure mental health unit before
justices in connection with the
exercise by them of their powers
under this Act.
(4) A copy of the order that commits a
defendant to a secure mental health unit
and the report of the Chief Forensic
Psychiatrist are to accompany the
defendant to the specified secure mental
health unit.
232
2005 Mental Health Amendment (Secure No. s. 125
Mental Health Unit)
(5) While a defendant is the responsibility of
a person as specified in an order that
commits the defendant to a secure mental
health unit -
(a) that person has the custody of the
defendant; and
(b) the defendant is taken to be a
forensic patient for the purposes
of the application of relevant
provisions of Part 10A of the
Mental Health Act 1996.
(6) Each of the following persons may apply
at any time to justices for the variation or
revocation of an order committing a
defendant to a secure mental health unit:
(a) the Director of Public
Prosecutions or prosecutor;
(b) the Secretary of the responsible
Department in relation to the
Mental Health Act 1996;
(c) the Chief Forensic Psychiatrist;
(d) the defendant.
(7) The Chief Forensic Psychiatrist must
apply to justices for the revocation of an
order committing a defendant to a secure
mental health unit if the Chief Forensic
Psychiatrist is of the opinion that the
defendant no longer requires such
treatment or could no longer benefit from
such treatment.
(8) On hearing an application, the justices -
233
s. 125 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(a) may vary, revoke or confirm the
order committing the defendant to
a secure mental health unit; and
(b) if they revoke the order, may
make any other order they could
have made under subsection (2)
or section 35(1).
(9) An application is to be heard and
determined within 14 days after it is
made.
(10) The Secretary of the responsible
Department in relation to the Mental
Health Act 1996 may delegate his or her
power under subsection (6)(b) to apply
for the variation or revocation of an
order.
(11) The justices may make such orders as to
the distribution and security of the report
provided by the Chief Forensic
Psychiatrist as they consider necessary or
appropriate.
(12) Unless the justices order otherwise, the
Chief Forensic Psychiatrist must give, as
soon as practicable, a copy of his or her
report to -
(a) the prosecutor; and
(b) the legal practitioner representing
the defendant or, if the defendant
is unrepresented, the defendant.
234
2005 Mental Health Amendment (Secure No. s. 126
Mental Health Unit)
(13) The prosecution or the defence may
dispute the whole or any part of the
report of the Chief Forensic Psychiatrist.
(14) If the whole or any part of the report of
the Chief Forensic Psychiatrist is
disputed, the justices must not take into
consideration the report or part in dispute
unless the party disputing the report or
part has had the opportunity -
(a) to lead evidence on the disputed
matters; and
(b) to cross-examine on the disputed
matters the Chief Forensic
Psychiatrist or, if the Chief
Forensic Psychiatrist has
delegated his or her function of
writing the report, the author of
the report.
126. Section 144 amended (Rules of court)
Section 144(4) of the Principal Act is amended
by inserting after paragraph (ce) the following
paragraph:
(cf) the practice and procedure relating to
matters arising under the Mental Health
Act 1996;
235
s. 127 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
PART 10 - SENTENCING ACT 1997 AMENDED
127. Principal Act
In this Part, the Sentencing Act 1997* is referred
to as the Principal Act.
128. Section 4 amended (Interpretation)
Section 4 of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "Administrator of
Magistrates Courts":
"approved hospital" has the same
meaning as in the Mental Health
Act 1996;
(b) by inserting the following definition after
the definition of "area restriction order":
"assessment order" has the meaning
given by section 73;
(c) by inserting the following definition after
the definition of "breach":
"Chief Forensic Psychiatrist" has the
same meaning as in the Mental
Health Act 1996;
(d) by inserting the following definition after
the definition of "compensation order":
*No. 59 of 1997
236
2005 Mental Health Amendment (Secure No. s. 129
Mental Health Unit)
"continuing care order" has the
meaning given by section 76;
(e) by omitting the definition of
"institution";
(f) by inserting the following definitions
after the definition of "restitution order":
"restriction order" has the meaning
given by section 77;
"secure mental health unit" has the
same meaning as in the Mental
Health Act 1996;
"supervision order" has the meaning
given by section 77A;
129. Part 10: Heading amended
Part 10 of the Principal Act is amended by
inserting in the heading to that Part
"SUPERVISION AND" after "CARE,".
130. Section 72 amended (Court may make assessment
order)
Section 72 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (a)(ii)
"institution" and substituting "approved
hospital or a secure mental health unit";
(b) by omitting paragraph (b) and
substituting the following paragraph:
237
s. 131 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) the court has received advice in
writing from an approved medical
practitioner at the approved
hospital to which it is proposed to
admit the person, or from the
Chief Forensic Psychiatrist if it is
proposed to admit the person to a
secure mental health unit, that -
(i) it is appropriate for the
person to be so admitted;
and
(ii) the approved hospital or
secure mental health unit
has the facilities and staff
to undertake an
assessment of the
person's suitability for an
order under section 75.
131. Section 73 amended (What is an assessment order?)
Section 73 of the Principal Act is amended by
omitting "institution, for a period not exceeding
72 hours" and substituting "approved hospital or
secure mental health unit, for the period".
132. Section 75 amended (Continuing care order,
supervision order and restriction order)
Section 75 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(b) "a
psychiatrist" and substituting "the Chief
238
2005 Mental Health Amendment (Secure No. s. 132
Mental Health Unit)
Forensic Psychiatrist or another
psychiatrist";
(b) by omitting from subsection (1)(b)(ii)
"institution" and substituting "approved
hospital or secure mental health unit";
(c) by omitting from subsection (1)(c) "or
responsible medical officer of the
institution to which it is proposed to
admit the person" and substituting "at the
approved hospital to which it is proposed
to admit the person, or from the Chief
Forensic Psychiatrist if it is proposed to
admit the person to a secure mental
health unit,";
(d) by inserting the following subsection
after subsection (2):
(2A) If, on the trial of a person for an
offence -
(a) the person is found guilty;
and
(b) the court is satisfied, by
the production of the
report of the Chief
Forensic Psychiatrist and
any other evidence that it
may require, that -
(i) the person appears
to be suffering
from a mental
illness that
requires treatment;
and
239
s. 132 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(ii) the treatment can
be obtained by
releasing the
person under the
supervision of the
Chief Forensic
Psychiatrist; and
(c) the report of the Chief
Forensic Psychiatrist
recommends the release
of the person under his or
her supervision -
the court, if it is the Supreme
Court, may make a supervision
order instead of, or in addition to,
any sentence it may impose.
(e) by inserting in subsection (3) "or
supervision order" after "restriction
order";
(f) by inserting the following subsections
after subsection (4):
(5) The court may make such orders
as to the distribution and security
of the report provided by the
Chief Forensic Psychiatrist as it
considers necessary or
appropriate.
(6) Unless the court orders otherwise,
the Chief Forensic Psychiatrist
must give, as soon as practicable,
a copy of his or her report to -
(a) the prosecutor; and
240
2005 Mental Health Amendment (Secure No. s. 132
Mental Health Unit)
(b) the legal practitioner
representing the person in
respect of whom the
report is made or, if that
person is unrepresented,
that person.
(7) The prosecution or the defence
may dispute the whole or any part
of the report of the Chief Forensic
Psychiatrist.
(8) If the whole or any part of the
report of the Chief Forensic
Psychiatrist is disputed, the court
must not take into consideration
the report or the part in dispute
unless the party disputing the
report or the part has had the
opportunity -
(a) to lead evidence on the
disputed matters; and
(b) to cross-examine on the
disputed matters the Chief
Forensic Psychiatrist or, if
the Chief Forensic
Psychiatrist has delegated
his or her function of
writing the report, the
author of the report.
241
s. 133 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
133. Sections 76, 77 and 78 substituted
Sections 76, 77 and 78 of the Principal Act are
repealed and the following sections are
substituted:
76. What is a continuing care order?
(1) A continuing care order is an order for
the detention of the person in respect of
whom it is made as an involuntary
patient in the approved hospital specified
in the order for the term not exceeding 6
months specified in the order.
(2) Once made, a continuing care order is
taken to be a continuing care order made
under section 28 of the Mental Health
Act 1996.
77. What is a restriction order?
(1) A restriction order is an order requiring
the person in respect of whom it is made
to be admitted to and detained in a secure
mental health unit until the order is
discharged by the Supreme Court.
(2) Once made, a restriction order is taken to
be a restriction order made under the
Criminal Justice (Mental Impairment)
Act 1999.
77A. What is a supervision order?
(1) A supervision order is an order releasing
the person in respect of whom it is made
under the supervision of the Chief
Forensic Psychiatrist subject to any
conditions specified in the order.
242
2005 Mental Health Amendment (Secure No. s. 133
Mental Health Unit)
(2) Without limiting the conditions that may
be specified in a supervision order, such
conditions may include any one or more
of the following conditions:
(a) a condition requiring the person
to whom it applies to take
medication or submit to the
administration of medical
treatment as specified in the order
or as determined by the Chief
Forensic Psychiatrist;
(b) a condition requiring the person
to whom it applies to comply
with any directions as to
supervision given by the Chief
Forensic Psychiatrist.
(3) Once made, a supervision order is taken
to be a supervision order made under the
Criminal Justice (Mental Impairment)
Act 1999.
77B. Principle on which courts are to act
In making an order under this Part in
respect of a person, a court is to apply,
where appropriate, the principle that
restrictions on the person's freedom and
personal autonomy should be kept to the
minimum consistent with the safety of
the community when determining -
(a) which order to make under this
Part; or
(b) the conditions of such an order.
243
s. 133 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
78. Custody of admitted person
(1) In this section -
"specified" means specified in an
order under this Part that commits
a person to, or otherwise requires
the detention of a person in, an
approved hospital or a secure
mental health unit.
(2) If a court makes an order under this Part
that commits a person to, or otherwise
requires the detention of a person in, an
approved hospital, the court may specify
that a specified person, or a person of a
specified class of person, is to be
responsible for taking that person -
(a) to the specified approved
hospital; and
(b) from the specified approved
hospital to the court in connection
with the exercise by the court of
its powers under this Part.
(3) If a court makes an order under this Part
that commits a person to, or otherwise
requires the detention of a person in, a
secure mental health unit -
(a) it is to specify in the order that
the specified person, or a person
of a specified class of person, is
to be responsible for taking the
defendant to the specified secure
mental health unit; and
244
2005 Mental Health Amendment (Secure No. s. 133
Mental Health Unit)
(b) it may specify in the order that
that specified person or another
specified person, or a person of
that specified class or another
specified class of person, is to be
responsible for bringing the
defendant from the specified
secure mental health unit before
the court in connection with the
exercise by the court of its
powers under this Act.
(4) A copy of the order and the advice or
report, as the case requires, of the
psychiatrist or Chief Forensic
Psychiatrist are to accompany the
offender to the specified approved
hospital or specified secure mental health
unit.
(5) While an offender is the responsibility of
a person as specified in an order referred
to in subsection (2), that person has the
custody of the offender.
(6) While an offender is the responsibility of
a person as specified in an order referred
to in subsection (3) -
(a) that person has the custody of the
offender; and
(b) the offender is taken to be a
forensic patient for the purposes
of the application of relevant
provisions of Part 10A of the
Mental Health Act 1996.
245
s. 134 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
134. Section 79 amended (Effect of continuing care
order)
Section 79(4) of the Principal Act is amended by
omitting "institution" and substituting "approved
hospital".
135. Section 79A amended (Arrest of assessment order
detainees who abscond)
Section 79A(1) of the Principal Act is amended
by omitting "institution" and substituting
"approved hospital".
136. Section 79B amended (Arrest of detainees who flee
the State)
Section 79B of the Principal Act is amended by
omitting subsection (1).
246
2005 Mental Health Amendment (Secure No. s. 137
Mental Health Unit)
PART 11 - YOUTH JUSTICE ACT 1997 AMENDED
137. Principal Act
In this Part, the Youth Justice Act 1997* is
referred to as the Principal Act.
138. Section 25 amended (How youth is to be dealt with
if not granted bail)
Section 25(2) of the Principal Act is amended by
inserting "but an order is not made under section
47(2) of that Act" after "section 35 of the
Justices Act 1959".
139. Section 105 substituted
Section 105 of the Principal Act is repealed and
the following section is substituted:
105. Adjournment to determine mental health or
disability of youth
(1) In this section -
"approved hospital" has the same
meaning as in the Mental Health
Act 1996;
"assessment centre" has the same
meaning as in the Mental Health
Act 1996;
*No. 81 of 1997
247
s. 139 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
"Chief Forensic Psychiatrist" means
the Chief Forensic Psychiatrist
appointed under section 11A of
the Mental Health Act 1996;
"disability" means a restriction or
lack of ability to perform an
activity in a normal manner that -
(a) is the result of an absence,
loss or abnormality of
mental, psychological,
intellectual, cognitive,
physiological or
anatomical structure or
function; but
(b) is not a mental illness;
"mental illness" has the same
meaning as in the Mental Health
Act 1996;
"secure mental health unit" has the
same meaning as in the Mental
Health Act 1996;
"specified" means specified in an
order under this section that
commits a youth to a secure
mental health unit.
(2) If at any time during proceedings under
this Part it appears to the Court that the
youth may be suffering from any mental
illness or disability, the Court may
adjourn the proceedings for a period not
exceeding 7 days and -
248
2005 Mental Health Amendment (Secure No. s. 139
Mental Health Unit)
(a) if the Court considers that the
youth would be granted bail if the
adjournment were for some other
reason, make an order granting
the youth bail on the condition
that he or she present himself or
herself at a place the Court
considers suitable and allow
himself or herself to be observed
and assessed; or
(b) if the Court considers that the
youth would not be granted bail if
the adjournment were for some
other reason, make an order
remanding the youth to be placed
in an assessment centre, approved
hospital, secure mental health
unit or other place, as the Court
considers suitable, for
observation and assessment.
(3) If the Court makes an order under
subsection (2)(a) or (b), it is to make an
order requiring a suitably qualified
person at the place at which the youth is
to be observed and assessed to provide
the Court with a report on the youth's
condition and a recommendation as to
the youth's future treatment.
(4) The Court must give any guardian of the
youth who is present the opportunity to
be heard before making an order under
subsection (2)(a) or (b).
(5) The Court may not make an order under
subsection (2)(b) that commits a youth
249
s. 139 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
who has not attained the age of 18 years
to an assessment centre or hospital unless
the Court is satisfied that adequate
facilities and staff exist at the assessment
centre or hospital for the appropriate care
and treatment of the youth.
(6) The Court may not make an order under
subsection (2)(b) that commits a youth
who has not attained the age of 18 years
to a secure mental health unit unless the
Court has received a report from the
Chief Forensic Psychiatrist stating that -
(a) adequate facilities and staff exist
at the secure mental health unit
for the appropriate care and
treatment of the youth; and
(b) the secure mental health unit is
the most appropriate place
available to accommodate the
youth in the circumstances.
(7) If the Court makes an order under
subsection (2)(b) that commits a youth to
an assessment centre, approved hospital
or secure mental health unit -
(a) the Court is to specify in the
order that the specified person, or
a person of a specified class of
person, is to be responsible for
taking the youth to the specified
assessment centre, approved
hospital or secure mental health
unit; and
250
2005 Mental Health Amendment (Secure No. s. 139
Mental Health Unit)
(b) the Court may specify in the
order that that or another
specified person, or a person of
that or another specified class of
person, is to be responsible for
bringing the youth from the
assessment centre, approved
hospital or specified secure
mental health unit before the
Court in connection with the
exercise by the Court of its
powers under this Act.
(8) A copy of an order under
subsection (2)(b) that commits a youth to
a assessment centre, approved hospital or
secure mental health unit and the report
of the Chief Forensic Psychiatrist are to
accompany the youth to the specified
assessment centre, approved hospital or
secure mental health unit.
(9) While a youth is the responsibility of a
person as specified in an order under
subsection (2)(b) that commits the youth
to a secure mental health unit, that
person -
(a) has the custody of the youth; and
(b) if the youth is committed to an
approved hospital, the youth is
taken to be an involuntary patient
for the purposes of the
application of relevant provisions
of the Mental Health Act 1996;
and
251
s. 139 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(c) if the youth is committed to a
secure mental health unit, the
youth is taken to be a forensic
patient for the purposes of the
application of relevant provisions
of the Mental Health Act 1996.
(10) The Court may make such orders in
relation to the distribution and security of
the report of the Chief Forensic
Psychiatrist as it considers necessary or
appropriate.
(11) Unless the Court orders otherwise, the
Chief Forensic Psychiatrist must give, as
soon as practicable, a copy of his or her
report to -
(a) the prosecutor; and
(b) the legal practitioner representing
the youth or, if the youth is
unrepresented, the youth.
(12) The prosecution or the defence may
dispute the whole or any part of the
report of the Chief Forensic Psychiatrist.
(13) If the whole or any part of the report of
the Chief Forensic Psychiatrist is
disputed, the Court must not take into
consideration the report or part in dispute
unless the party disputing the report or
part has had the opportunity -
(a) to lead evidence on the disputed
matters; and
252
2005 Mental Health Amendment (Secure No. s. 140
Mental Health Unit)
(b) to cross-examine on the disputed
matters the Chief Forensic
Psychiatrist or, if the Chief
Forensic Psychiatrist has
delegated his or her function of
writing the report, the author of
the report.
140. Section 108B amended (Application of Part 5)
Section 108B of the Principal Act is amended by
omitting "whether that period of detention is
being served in a detention centre or a prison."
and substituting "regardless of whether that
period of detention, or part of that period of
detention, is served in a detention centre, prison
or secure mental health unit.".
141. Sections 134A and 134B inserted
After section 134 of the Principal Act, the
following sections are inserted in Division 3:
134A. Removal of detainee to secure mental health
unit
(1) In this section -
"Chief Forensic Psychiatrist" means
the Chief Forensic Psychiatrist
appointed under section 11A of
the Mental Health Act 1996;
"controlling authority" has the same
meaning as in the Mental Health
Act 1996;
253
s. 141 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
"disability" means a restriction or
lack of ability to perform an
activity in a normal manner that -
(a) results from an absence,
loss or abnormality of
mental, psychological,
intellectual, cognitive,
physiological or
anatomical structure or
function; but
(b) is not a mental illness;
"mental illness" has the same
meaning as in the Mental Health
Act 1996;
"secure mental health unit" has the
same meaning as in the Mental
Health Act 1996.
(2) The Secretary may direct that a detainee
who, in the opinion of a medical
practitioner or psychologist, appears to
be suffering from a mental illness be
removed from a detention centre to a
secure mental health unit if -
(a) either -
(i) the Secretary determines
that it is in the best
interests of the detainee,
other detainees in the
detention centre or the
staff of the detention
centre for the detainee to
254
2005 Mental Health Amendment (Secure No. s. 141
Mental Health Unit)
be removed to a secure
mental health unit; or
(ii) the detainee has requested
that he or she be removed
to a secure mental health
unit; and
(b) the Secretary has considered the
report of the Chief Forensic
Psychiatrist as to whether -
(i) the detainee is suffering
from a mental illness; and
(ii) the admission of the
detainee to a secure
mental health unit is
necessary for his or her
care or treatment; and
(iii) adequate facilities and
staff exist at the secure
mental health unit for the
appropriate care and
treatment of the detainee.
(3) The Secretary may direct that a detainee
who has a disability be removed from a
detention centre to a secure mental health
unit if -
(a) the Secretary considers that it is
necessary for the detainee's care
and treatment or for the
protection of other persons; and
255
s. 141 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(b) the Secretary has considered the
report of the Chief Forensic
Psychiatrist as to whether -
(i) the admission of the
detainee to a secure
mental health unit is
necessary for his or her
care or treatment; and
(ii) adequate facilities and
staff exist at the secure
mental health unit for the
appropriate care and
treatment of the detainee.
(4) A detainee admitted to a secure mental
health unit under a direction under
subsection (3) may be detained in the
secure mental health unit for no longer
than the period specified in the direction.
(5) If at any time while a youth admitted to a
secure mental health unit under a
direction under subsection (2) or (3) is so
detained in that unit the Chief Forensic
Psychiatrist considers that the youth
would no longer benefit from being in
that unit, the Chief Forensic Psychiatrist
may require the Secretary to remove the
youth from that unit.
(6) The Secretary is to comply with a
requirement made under subsection (5).
(7) While a detainee is detained in a secure
mental health unit following a direction
under subsection (2) or (3), including
while the detainee is on authorised leave
256
2005 Mental Health Amendment (Secure No. s. 141
Mental Health Unit)
from that secure mental health unit, that
detainee is taken to be serving his or her
sentence of detention.
134B. Appeal against direction under section 134A
(1) In this section -
"Chief Forensic Psychiatrist" means
the Chief Forensic Psychiatrist
appointed under section 11A of
the Mental Health Act 1996;
"Forensic Tribunal" means the
Forensic Tribunal established
under section 73T of the Mental
Health Act 1996;
"mental illness" has the same
meaning as in the Mental Health
Act 1996;
"secure mental health unit" has the
same meaning as in the Mental
Health Act 1996.
(2) A detainee may appeal to the Forensic
Tribunal in respect of -
(a) the making of a direction under
section 134A(2) or (3); or
(b) the failure to make such a
direction if the detainee has
requested it under
section 134A(2)(a)(ii); or
(c) the requirement by the Chief
Forensic Psychiatrist under
section 134A(5).
257
s. 141 No. Mental Health Amendment (Secure 2005
Mental Health Unit)
(3) The commencing of an appeal does not
affect the operation of the direction or
requirement appealed against.
(4) An appeal is to be heard and determined
by the Forensic Tribunal within 14 days.
(5) The Mental Health Act 1996 applies to
the hearing and determination of an
appeal, regardless of whether or not the
detainee has a mental illness, as if it were
an appeal made under that Act.
(6) On hearing an appeal, the Forensic
Tribunal may -
(a) revoke the direction or
requirement; or
(b) amend the direction or
requirement; or
(c) confirm the direction or
requirement; or
(d) require the Secretary to make a
direction under section 134A(2)
or (3).
(7) The Secretary must comply with a
requirement under subsection (6)(d) to
make a direction, and a direction made in
compliance with that requirement is valid
despite the matters specified in
section 134A(2) or (3) not being
satisfied.
(8) If the Forensic Tribunal revokes a
direction in respect of a detainee made
under section 134A(2) or (3) and the
258
2005 Mental Health Amendment (Secure No. s. 141
Mental Health Unit)
detainee is at that time in a secure mental
health unit, the Secretary is to remove the
detainee from the secure mental health
unit as soon as may be practicably
arranged.
Government Printer, Tasmania 259