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Sentencing and Mental Health Acts
(Amendment) Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 is the commencement provision. Sections 1 and 8 of the Bill will
come into operation on the day after the day on which it receives
the Royal Assent; and the remaining provisions of the Bill will
come into operation on a day or days to be proclaimed, or on
1 October 2006, whichever is the earlier.
PART 2--SENTENCING ACT 1991
Clause 3 inserts definitions in section 3(1) of the Sentencing Act 1991
("the Sentencing Act") for orders made under substituted
section 93 and new section 93A.
Sub-clause (1)(a) inserts a new definition of "restricted
involuntary treatment order", meaning an order made under
substituted section 93. The substituted section 93 replaces the
provisions for hospital orders with new provisions for restricted
involuntary treatment orders. Sub-clause (1)(a) also substitutes
the definition of "hospital security order".
Sub-clause (1)(b) amends section 7(1)(aab) of the Sentencing Act
to ensure it is consistent with the new section 93A.
Sub-clause (1)(c) inserts the heading "Hospital security orders" to
section 18E of the Sentencing Act.
Sub-clause (2) re-enacts section 18E(2) of the Sentencing Act
with the consequential amendments required in relation to the
new provisions relating to hospital security orders in section 93A.
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551269 BILL LA INTRODUCTION 16/8/2005
Sub-clause (3) amends section 18E(3) of the Sentencing Act to
refer to the new section 93A and substitutes the heading to Part 5
of the Sentencing Act with "Part 5--Mentally Ill Offenders" to
reflect the amendments being made to that Part by the Bill.
Clause 4 Sub-clause (1) amends the criteria in section 90 of the Sentencing
Act (assessment orders) to be consistent with the criteria for
involuntary treatment in section 8(1) of the Mental Health Act
1986.
Sub-clause (2) provides that an assessment order is sufficient
authority for the detention of the person who is subject to the
order in an approved mental health service.
Sub-clause (3) amends the criteria in section 91 of the Sentencing
Act (diagnosis, assessment and treatment orders) to be consistent
with the criteria for involuntary treatment in section 8(1) of the
Mental Health Act 1986.
Sub-clause (4) provides that a diagnosis, assessment and
treatment order is sufficient authority for the detention of the
person who is subject to the order in an approved mental health
service.
Sub-clause (5) amends section 92(a) of the Sentencing Act to
refer to restricted involuntary treatment orders and hospital
security orders.
Clause 5 substitutes section 93 of the Sentencing Act and inserts a new
section 93A.
The new section 93 provides for restricted involuntary treatment
orders, which replace hospital orders. The criteria for the making
of a restricted involuntary treatment order are the same as the
criteria for the making of a hospital order under the former
section 93(1)(d), with three exceptions. First, a restricted
involuntary treatment order cannot be made for a person found
guilty of a serious offence for the purposes of Subdivision (1A)
of Division 2 of Part 3 of the Sentencing Act. Secondly, the
court must now also consider the person's current mental
condition, medical psychiatric and forensic history, and social
circumstances. Thirdly, the criteria no longer require
"admission" of the person, so that it is possible for the person to
be either detained in an approved mental health service, or be
immediately made subject to a restricted community treatment
order under the Mental Health Act 1986.
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The new section 93(3) provides that a restricted involuntary
treatment order must specify the duration of the order, which
must not exceed 2 years.
The new section 93A provides for amended provisions relating to
hospital security orders. The criteria for the making of such an
order are the same as the criteria for the making of a hospital
security order under the former section 93(1)(e), except that the
court must now also consider the person's current mental
condition, medical psychiatric and forensic history, and social
circumstances.
Clause 6 inserts new section 131 in the Sentencing Act providing for
transitional arrangements for persons who, immediately before
the Bill commences, were subject to a hospital order or a hospital
security order.
New section 131(2) provides that section 131(1) ceases to have
effect 2 years after the commencement day. Consequently a
person subject to a hospital order immediately before the
commencement day will cease to be an involuntary patient
2 years after the commencement day, unless he or she has been
discharged from the hospital order earlier.
PART 3--MENTAL HEALTH ACT 1986
Clause 7 Sub-clause (1) repeals some definitions and amends other
definitions in section 3(1) of the Mental Health Act 1986 ("the
Mental Health Act") so that relevant definitions correspond with
the new provisions relating to restricted involuntary treatment
orders and hospital security orders in sections 93 and 93A of the
Sentencing Act, and new section 16A of the Mental Health Act.
Sub-clause (2) amends section 3A(2)(d) of the Mental Health Act
to refer to new section 16B, which provides for the treatment of
security patients.
Sub-clause (3) amends sections 14(6) and 14E(4) of the Mental
Health Act to refer to restricted involuntary treatment orders.
Clause 8 inserts a new section 9B(1)(ca) in the Mental Health Act which
applies the powers in section 9B to a person being taken to an
approved mental health service under section 12AA(7).
Clause 9 amends section 15(1) of the Mental Health Act to refer to new
sections 36BA(2) and 37B of that Act.
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Clause 10 substitutes section 15A of the Mental Health Act with new
provisions for the making of restricted community treatment
orders.
The new provisions provide that both the authorised psychiatrist
and the chief psychiatrist may make a restricted community
treatment order for a person meeting the relevant criteria and that
the chief psychiatrist must be notified when a restricted
community treatment order is made by an authorised psychiatrist.
New section 15A(3) means that the period of a person's restricted
community treatment order is the remainder of the period of the
restricted involuntary treatment order to which the person is
subject, unless the order is revoked or the person is discharged
from either the restricted involuntary treatment order or the
restricted community treatment order.
The new section 93(3) of the Sentencing Act provides that a
restricted involuntary treatment order must specify the duration
of the order, which must not exceed 2 years.
Clause 11 Sub-clause (1)(a) amends section 15AB(2)(a) and (3)(a) of the
Mental Health Act to refer to new section 93(1)(a) of the
Sentencing Act.
Sub-clause (1)(b) repeals section 15B of the Mental Health Act
which provided for the extension of restricted community
treatment orders--these orders will no longer be subject to
extension as new section 15A provides that the orders will have
effect for the remainder of a person's restricted involuntary
treatment order.
Sub-clauses (1)(c) and (1)(d) amend section 15C of the Mental
Health Act so that an authorised psychiatrist may vary a
restricted community treatment order in the same way that the
chief psychiatrist may vary such an order.
Sub-clause (2) substitutes section 15D(1) of the Mental Health
Act with new section 15D(1) and (1A) to make the power to
revoke a restricted community treatment order consistent with
new section 93 of the Sentencing Act and new section 15A of the
Mental Health Act, including the power for an authorised
psychiatrist to revoke a restricted community treatment order in
the same way that the chief psychiatrist may revoke such an
order.
Sub-clause (3)(a) amends section 15D(2) of the Mental Health
Act so that it is consistent with substituted section 15D(1) and
new section 15D(1A).
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Sub-clause (3)(b) amends section 15E(1) of the Mental Health
Act to refer to restricted involuntary treatment orders.
Sub-clause (3)(c) repeals section 15E(2) of the Mental Health Act
that provided for the effect of a person's detention on the expiry
of the person's restricted community treatment order, as the
effective expiry date of a person's restricted community treatment
orders under new section 15A is now the expiry date of the
person's restricted involuntary treatment order.
Sub-clause (4) inserts new section 15E(4) in the Mental Health
Act so that a person is discharged from any restricted community
treatment order if they are transferred under section 16 from a
prison or place of confinement to an approved mental health
service under a hospital transfer order or restricted hospital
transfer order. The person's restricted involuntary treatment
order is not discharged in this instance, as such an order is only
discharged by the decision of the Mental Health Review Board
under new section 36B, or by the chief psychiatrist under new
section 37A of the Mental Health Act.
Clause 12 Sub-clause (1) substitutes section 16(1A) in the Mental Health
Act. New section 16(1A) re-enacts the current position that
section 16(1) does not apply to a person detained in a prison
under the Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997, but also states that section 16(1) does not apply
to a person serving a sentence in a prison under section 93A(7) of
the Sentencing Act. A person serving a sentence in a prison
under section 93A(7) can be transferred from prison to an
approved mental health service under new section 16A of the
Mental Health Act.
Sub-clause (2) substitutes the criteria in section 16(2)(a) of the
Mental Health Act to provide greater consistency with the criteria
for involuntary treatment in section 8(1) of the Mental Health
Act, and substitutes section 16(2)(b) for consistency with new
section 16A(1)(b) of the Mental Health Act.
Sub-clause (3) substitutes section 16(5) of the Mental Health Act
with an amended provision providing that a hospital transfer
order or restricted hospital transfer order is sufficient authority
for the detention of the person who is subject to the order in an
approved mental health service.
Sub-clause (4) repeals section 16(6) of the Mental Health Act as
the treatment of security patients is now provided for in new
section 16B.
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Clause 13 inserts new sections 16A and 16B in the Mental Health Act.
New section 16A provides that the Secretary to the Department
of Justice may by order transfer to an approved mental health
service a person who is serving a sentence in a prison pursuant to
section 93A(7) of the Sentencing Act (that is, a person subject to
a hospital security order who has been previously discharged to
prison). Before doing so, the conditions in sections 16A(1)(a)
and (b) must be satisfied.
New section 16B provides for the treatment of security patients.
This provision is consistent with section 12AD which provides
for the treatment of involuntary patients.
Clause 14 substitutes new section 19A(4)(g) of the Mental Health Act to
provide for the intervals at which the supervising medical
practitioner must submit a written report to the monitoring
psychiatrist. The new paragraph (g) no longer requires the
monitoring psychiatrist to submit reports to the chief psychiatrist
concerning the treatment of a patient subject to a restricted
community treatment order.
Clause 15 Sub-clause (1) inserts a new section 22(3) in the Mental
Health Act, providing that the Mental Health Review Board
("the Board") must consider a patient's forensic history in the
case of a review or an appeal of a restricted involuntary treatment
order or restricted community treatment order.
Sub-clause (2) substitutes "hospital order" with "restricted
involuntary treatment order" in relevant sections of Part 4 of the
Mental Health Act, and amends section 30(4) so that the Board
will no longer review the extension of restricted community
treatment orders, as these orders are no longer extended.
Sub-clause (3) substitutes section 30(5) of the Mental Health Act
with a new provision providing that a restricted community
treatment order is reviewed by the Board if it has been in
operation for at least 12 months. This effectively maintains the
frequency of review of restricted community treatment orders by
the Board.
Clause 16 substitutes section 36B in the Mental Health Act and inserts a
new section 36BA in the Mental Health Act. The new
section 36B provides for powers of the Board on the appeal or
review of a patient detained in an approved mental health service
under a restricted involuntary treatment order.
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New section 36B(4) includes a power for the Board to order the
authorised psychiatrist to make a restricted community treatment
order for the patient. This is similar to the Board's power in
section 36(4) to order that a community treatment order be made
for a person subject to an involuntary treatment order.
New section 36BA re-enacts the provisions providing for the
powers of the Board on the appeal or review of assessment orders
or diagnosis, assessment and treatment orders.
Clause 17 amends section 36C(6)(b) of the Mental Health Act and inserts
section 36C(7) so that the procedural provisions relating to
variation of community treatment orders are consistent with
those relating to restricted community treatment orders in new
section 36D.
Clause 18 substitutes section 36D of the Mental Health Act to re-enact the
provisions for the appeal or review for a person subject to a
restricted community treatment order with consequential
amendments required because of new section 93 in the
Sentencing Act.
New section 36D(3) provides a new power for the Board to vary
a restricted community treatment order, similar to the Board's
existing power to vary a community treatment order.
New sections 36D(6) and 36D(7) provide for the procedural
requirements if the Board varies a restricted community
treatment order.
Clause 19 substitutes section 37 of the Mental Health Act, and inserts new
sections 37A, 37B and 37C, to re-enact provisions relating to the
discharge of different categories of involuntary patients, with
consequential amendments required because of new section 93 of
the Sentencing Act.
Clause 20 makes a consequential amendment to section 38 of the Mental
Health Act to refer to new section 37C.
Clause 21 substitutes section 44 of the Mental Health Act. New section 44
provides for the discharge of security patients by the Board.
The criteria to be applied by the Board depend upon whether the
person is subject to a restricted hospital transfer order or a
hospital security order.
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Clause 22 substitutes section 45(1) of the Mental Health Act.
New section 45(1) provides for the discharge of security patients
by the chief psychiatrist. The criteria to be applied by the chief
psychiatrist depend upon whether the person is subject to a
restricted hospital transfer order or a hospital security order.
Clause 23 substitutes section 46 of the Mental Health Act.
New section 46(2) maintains the requirement for notice to be
given to the Secretary to the Department of Justice when the
Board or the chief psychiatrist discharges a security patient.
New section 46(3)(a) provides that the person is discharged as a
security patient on the making of the order for discharge if a
parole order has been made and the time for release has
occurred. Where such a parole order has not been made, new
section 46(3)(b) provides that the person is discharged upon
entering the legal custody of the Secretary to the Department of
Justice.
Note: Section 53A of the Mental Health Act provides for the
interpretation of references to the Secretary to the Department of
Justice, the Department of Justice, and prisons or other places of
confinement in Divisions 3 and 4 of Part 4 of the Mental Health
Act.
Clause 24 amends section 50(1) of the Mental Health Act to clarify the
application of the section to all security patients, whether
detained under section 16 or new section 16A of the Mental
Health Act, or new section 93A of the Sentencing Act.
Clause 25 inserts a new section 150 in the Mental Health Act providing for
transitional arrangements for persons who, immediately before
the Bill commences, were subject to a hospital order, restricted
community treatment order, or a hospital security order.
New section 150(1) provides that the Act as in force immediately
before commencement day will continue to apply for 2 years
from that day to persons made subject to a hospital order or
restricted community treatment order before commencement day.
New sections 150(2) and 150(3) clarify the transitional position
for a person who was subject to a hospital security order,
discharged to prison, and then transferred to an approved mental
health service under section 16 before commencement day.
Such a person will be taken to be detained under a hospital
security order, irrespective of the number of times the person has
been transferred between a prison and an approved mental health
service.
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PART 4--CORRECTIONS ACT 1986
Clause 26 Sub-clause (1) inserts a definition of "hospital security order" in
section 3(1) of the Corrections Act 1986 ("the Corrections
Act").
Sub-clauses (2) and (3) insert new section 74(8A) and amend
section 74(9) of the Corrections Act so that the Adult Parole
Board may make a parole order for a person detained in an
approved mental health service under a hospital security order.
The parole order does not take effect until the person is
discharged as a security patient under the Mental Health Act.
PART 5--CRIMES (MENTAL IMPAIRMENT AND
UNFITNESS TO BE TRIED) ACT 1997
Clause 27 amends relevant sections in Part 5 of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997 in order that
all forensic patients and forensic residents may be granted special
leave of absence, on-ground leave and limited off-ground leave,
but preserves the current restrictions on which forensic patients
and forensic residents may apply for extended leave.
PART 6--CONSEQUENTIAL AMENDMENT OF OTHER
ACTS
Clause 28 makes consequential amendments to section 16I(b)(iv) of the
Magistrates' Court Act 1989 so that it refers to hospital security
orders within the meaning of the Sentencing Act rather than the
Mental Health Act.
Clause 29 makes consequential amendments to Schedule 1 to the Juries
Act 2000 to refer to new section 93A of the Sentencing Act.
Clause 30 makes consequential amendments to section 3 of the Sex
Offenders Registration Act 2004 to refer to new sections 93
and 93A of the Sentencing Act and provide that forensic patients
and forensic residents on extended leave are not in "government
custody" for the purposes of that Act.
Clause 31 makes consequential amendments to definitions in section 3(1)
of the Serious Sex Offenders Monitoring Act 2005 and amends
section 19(1)(d) of that Act to refer to restricted involuntary
treatment orders.
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