FORENSIC DISABILITY ACT 2011 No. 13 - SECT 230 230 Replacement of s 288 (Mental Health Court may make forensic order)

FORENSIC DISABILITY ACT 2011 No. 13 - SECT 230

Section 288—

omit, insert—

'(1) This section applies if, on a reference, the Mental Health Court decides a person charged with an indictable offence—

(a) was of unsound mind when the alleged offence was committed; or

(b) is unfit for trial for the alleged offence and the unfitness for trial is of a permanent nature; or

(c) is unfit for trial for the alleged offence and the unfitness for trial is not of a permanent nature.

'(2) The court may make an order in accordance with this division (a forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability)) for a person mentioned in subsection (1)(a) or (b) that the person be detained for involuntary treatment or care.

'(3) The court must make an order in accordance with this division (also a forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability)) for a person mentioned in subsection (1)(c) that the person be detained for involuntary treatment or care.

'(4) In deciding whether to make an order under subsection (2), the court must have regard to the following—

(a) the seriousness of the offence;

(b) the person's treatment or care needs;

(c) the protection of the community.

'(5) After deciding to make an order under subsection (2), or for the purpose of making an order as required under subsection (3), the court must consider whether the person's unsoundness of mind or unfitness for trial is a consequence of an intellectual disability.

'(6) If the court does not consider the person's unsoundness of mind or unfitness for trial is a consequence of an intellectual disability, the order—

(a) must be a forensic order (Mental Health Court); and

(b) must state that the person is to be detained in a stated authorised mental health service for involuntary treatment or care.

'(7) If the court considers the person's unsoundness of mind or unfitness for trial is a consequence of an intellectual disability, the order—

(a) must be a forensic order (Mental Health Court—Disability); and

(b) subject to subsections (8) and (9), must state which of the following services the person is to be detained in for care—

(i) the forensic disability service;

(ii) a stated authorised mental health service.

'(8) In deciding whether a forensic order (Mental Health Court—Disability) is to state that the person is to be detained in the forensic disability service for care, the court must have regard to the following—

(a) whether the person has an intellectual or cognitive disability within the meaning of the Forensic Disability Act but does not require involuntary treatment for a mental illness under this Act;

(b) whether the person is likely to benefit from care and support within the meaning of the Forensic Disability Act provided in the forensic disability service.

'(9) A forensic order (Mental Health Court—Disability), must not state that the person to whom the order relates be detained in the forensic disability service for care unless a certificate given to the court under section 288AA states that the forensic disability service has the capacity for the person's detention and care.

'(10) To remove any doubt, it is declared that the court is not required to have regard to the matters mentioned in subsection (8)(a) and (b), or a certificate given to the court under section 288AA, in deciding whether to make an order under subsection (2).

'(11) A forensic order (Mental Health Court) or a forensic order (Mental Health Court—Disability) must be in the approved form.

'(12) In this section—

benefit means benefit by way of individual development and opportunities for quality of life and participation and inclusion in the community.

'(1) This section applies for the purpose of the Mental Health Court deciding whether a forensic order (Mental Health Court—Disability) is to state that the person to whom the order relates is to be detained in the forensic disability service for care.

'(2) If asked by the director (forensic disability), the chief executive (forensic disability) must give the director (forensic disability) a certificate stating whether or not the forensic disability service has the capacity for the person's detention and care.

'(3) The director (forensic disability) may give the certificate to the court.

'(4) The court may ask the director (forensic disability) to give the court a certificate of the chief executive (forensic disability) stating whether or not the forensic disability service has the capacity for the person's detention and care.

'(5) If the court makes a request under subsection (4), the director (forensic disability) must give the certificate to the court within—

(a) 7 days after receiving the request; or

(b) any longer period allowed by the court.'.