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PARLIAMENT OF VICTORIA
Sentencing and Mental Health Acts (Amendment)
Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
PART 2--SENTENCING ACT 1991 3
3. General amendments regarding hospital orders and hospital
security orders 3
4. Assessment orders and diagnosis, assessment and treatment
orders 4
5. New section 93 substituted and section 93A inserted 7
93. Restricted involuntary treatment orders 7
93A. Hospital security orders 9
6. New section 131 inserted 11
131. Transitional provision--Sentencing and Mental
Health Acts (Amendment) Act 2005 11
PART 3--MENTAL HEALTH ACT 1986 13
7. Definitions and references to hospital orders 13
8. Taking a person to an approved mental health service 14
9. Discharge of involuntary patients 14
10. New section 15A substituted 15
15A. Restricted community treatment orders 15
11. Restricted community treatment orders 17
12. Transfer of mentally ill prisoners 19
13. New sections 16A and 16B inserted 21
16A. Transfer of prisoners subject to hospital security
orders 21
16B. Treatment for security patients 22
14. Treatment plans 22
15. Appeals and reviews 23
i
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Clause Page
16. New section 36B substituted and section 36BA inserted 23
36B. Power of Board on appeal or review of restricted
involuntary treatment orders--patients who are
detained 23
36BA. Power of Board on appeal or review of assessment
orders or diagnosis, assessment and treatment orders 25
17. Power of Board on appeal or review for patients on
community treatment orders 25
18. New section 36D substituted 26
36D. Power of Board on appeal or review for patients on
restricted community treatment orders 26
19. New section 37 substituted and sections 37A, 37B and 37C
inserted 28
37. Discharge of involuntary patients--involuntary
treatment orders and community treatment orders 28
37A. Discharge of involuntary patients--restricted
involuntary treatment orders and restricted
community treatment orders 29
37B. Discharge of involuntary patients--assessment orders
and diagnosis, assessment and treatment orders 30
37C. Discharge of involuntary patients--hospital transfer
orders 30
20. Consequential amendment of section 38 31
21. New section 44 substituted 31
44. Board may order discharge 31
22. Discharge by chief psychiatrist 31
23. New section 46 substituted 32
46. Notification and discharge 32
24. Automatic discharge as a security patient 33
25. New section 150 inserted 33
150. Transitional provision--Sentencing and Mental
Health Acts (Amendment) Act 2005 33
PART 4--CORRECTIONS ACT 1986 35
26. Parole orders for persons subject to hospital security orders 35
PART 5--CRIMES (MENTAL IMPAIRMENT AND
UNFITNESS TO BE TRIED) ACT 1997 36
27. Leave of absence 36
ii
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Clause Page
PART 6--CONSEQUENTIAL AMENDMENT OF OTHER
ACTS 38
28. Magistrates' Court Act 1989 38
29. Juries Act 2000 38
30. Sex Offenders Registration Act 2004 38
31. Serious Sex Offenders Monitoring Act 2005 39
ENDNOTES 40
iii
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the Sentencing Act 1991, the Mental Health Act 1986, the
Corrections Act 1986 and the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997, to make consequential amendments
to other Acts and for other purposes.
Sentencing and Mental Health Acts
(Amendment) Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is--
(a) to amend the Sentencing Act 1991 with
respect to orders that may be made for
5
mentally-ill offenders;
1
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 1--Preliminary
s. 2
(b) to amend the Mental Health Act 1986 with
respect to involuntary patients and security
patients;
(c) to amend the Corrections Act 1986 to allow
parole orders to be made for persons in
5
detention under hospital security orders;
(d) to amend the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 to
allow certain forensic patients and forensic
residents to apply for leave;
10
(e) to make consequential amendments to other
Acts.
2. Commencement
(1) This section and sections 1 and 8 come into
operation on the day after the day on which this
15
Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision of this Act does not come into
20
operation before 1 October 2006, it comes into
operation on that day.
__________________
2
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 3
See:
PART 2--SENTENCING ACT 1991
Act No.
49/1991.
3. General amendments regarding hospital orders and Reprint No. 8
as at
hospital security orders 1 July 2005
and
(1) In the Sentencing Act 1991-- amending
Act Nos
(a) insert the following definitions in
5 53/2003,
section 3(1)-- 18/2005 and
34/2005.
LawToday:
' "hospital security order" means-- www.dms.
dpc.vic.
(a) an order made under section 93A; gov.au
or
(b) an order made under section 16A
10
of the Mental Health Act 1986;
"restricted involuntary treatment order"
means an order made under
section 93;';
(b) in section 7(1)(aab), for "admitted to and
15
detained in" substitute "detained and treated
in";
(c) insert the following heading to
section 18E--
"Hospital security orders".
20
(2) For section 18E(2) of the Sentencing Act 1991
substitute--
'(2) Section 93A applies if a person is found
guilty of a serious offence and a court
imposes an indefinite sentence in the same
25
way it applies on any other finding of guilt
but as if--
(a) section 93A(4) provided that the
duration of the hospital security order
was for an indefinite period;
30
3
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 4
(b) section 93A(6) did not require the
fixing of a non-parole period but
instead required the court to specify a
nominal sentence as if the hospital
security order were an indefinite
5
sentence;
(c) in section 93A(7), the words "before
the end of the period specified in a
hospital security order" were omitted;
(d) section 93A(7) referred to--
10
(i) an indefinite term instead of the
unexpired portion of the hospital
security order;
(ii) release under a re-integration
program instead of release on
15
parole.'.
(3) In the Sentencing Act 1991--
(a) in section 18E(3), for "section 93(1)(e)"
substitute "section 93A";
(b) for the heading to Part 5 substitute--
20
"PART 5--MENTALLY ILL
OFFENDERS".
4. Assessment orders and diagnosis, assessment and
treatment orders
(1) In section 90 of the Sentencing Act 1991--
25
(a) for paragraphs (b) and (c) substitute--
"(b) the court is of the opinion that--
(i) the person appears to be mentally
ill; and
(ii) the person's mental illness may
30
require treatment and that
treatment may be obtained by the
4
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 4
person being detained in an
approved mental health service;
and
(iii) because of the person's mental
illness, involuntary treatment of
5
the person is necessary for his or
her health or safety (whether to
prevent a deterioration in the
person's physical or mental
condition or otherwise) or for the
10
protection of members of the
public; and
(c) the court has received advice in writing
from the authorised psychiatrist of the
approved mental health service in
15
which the person is proposed to be
detained stating that there are facilities
or services available at that service for
the assessment of the person's
suitability for a restricted involuntary
20
treatment order or a hospital security
order--";
(b) for "the person is admitted to and detained"
substitute "the person is detained";
(c) for "an order under section 93" (where last
25
occurring) substitute "a restricted
involuntary treatment order or a hospital
security order".
(2) At the end of section 90 of the Sentencing Act
1991 insert--
30
"(2) An assessment order is sufficient authority
for the detention of the person who is subject
to the order in an approved mental health
service.".
5
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 4
(3) In section 91 of the Sentencing Act 1991--
(a) for paragraphs (b) and (c) substitute--
"(b) the court is satisfied by the production
of a certificate in the prescribed form of
a psychiatrist and any other evidence
5
that it may require that--
(i) the person appears to be mentally
ill; and
(ii) the person's mental illness
requires treatment and that
10
treatment can be obtained by the
person being subject to an order
under this section; and
(iii) because of the person's mental
illness, involuntary treatment of
15
the person is necessary for his or
her health or safety (whether to
prevent a deterioration in the
person's physical or mental
condition or otherwise) or for the
20
protection of members of the
public; and
(c) the court has received a report in the
prescribed form from the authorised
psychiatrist of the approved mental
25
health service in which the person is
proposed to be detained--
(i) recommending the making of the
order; and
(ii) stating that there are facilities or
30
services available at that service
for the diagnosis, assessment and
treatment of the person--";
(b) for "the person is admitted to and detained"
substitute "the person is detained".
35
6
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 5
(4) At the end of section 91 of the Sentencing Act
1991 insert--
"(2) A diagnosis, assessment and treatment order
is sufficient authority for the detention of the
person who is subject to the order in an
5
approved mental health service.".
(5) In section 92(a) of the Sentencing Act 1991, for
"an order under section 93" substitute "a
restricted involuntary treatment order or a hospital
security order".
10
5. New section 93 substituted and section 93A inserted
For section 93 of the Sentencing Act 1991
substitute--
"93. Restricted involuntary treatment orders
(1) Instead of passing sentence on a person
15
found guilty of an offence (other than an
offence that is a serious offence for the
purposes of Subdivision (1A) of Division 2
of Part 3), a court may make a restricted
involuntary treatment order for the person
20
if--
(a) the court is satisfied, by the production
of a certificate in the prescribed form of
a psychiatrist and any other evidence
that it may require, that--
25
(i) the person appears to be mentally
ill; and
(ii) the person's mental illness
requires treatment and that
treatment can be obtained by the
30
person being subject to a restricted
involuntary treatment order; and
7
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 5
(iii) because of the person's mental
illness, involuntary treatment of
the person is necessary for his or
her health or safety (whether to
prevent a deterioration in the
5
person's physical or mental
condition or otherwise) or for the
protection of members of the
public; and
(b) the court has received a report in the
10
prescribed form from the authorised
psychiatrist of the approved mental
health service at which the person is
proposed to be treated--
(i) recommending the making of the
15
order; and
(ii) stating that there are facilities or
services available at that service
for the treatment of the person.
(2) In determining whether or not to make a
20
restricted involuntary treatment order for a
person, the court must consider the person's
current mental condition, his or her medical,
psychiatric and forensic history and his or
her social circumstances.
25
(3) A restricted involuntary treatment order must
specify the duration of the order, which must
not exceed 2 years.
8
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 5
(4) A restricted involuntary treatment order is
sufficient authority for the detention of the
person who is subject to the order in an
approved mental health service.
5 Note 1: Under section 15A of the Mental Health Act
1986, a restricted community treatment order
may be made at any time for a person who is
subject to a restricted involuntary treatment
order.
10 Note 2: A person subject to a restricted involuntary
treatment order or a restricted community
treatment order may be discharged under the
Mental Health Act 1986 from the order by the
Mental Health Review Board or the chief
15 psychiatrist.
93A. Hospital security orders
(1) A court may make a hospital security order
for a person who is found guilty of an
offence, by way of sentence, if--
(a) the court is satisfied, by the production
20
of a certificate in the prescribed form of
a psychiatrist and any other evidence
that it may require, that--
(i) the person appears to be mentally
ill; and
25
(ii) the person's mental illness
requires treatment and that
treatment can be obtained by the
person being subject to a hospital
security order; and
30
(iii) because of the person's mental
illness, the detention and
treatment of the person in an
approved mental health service is
necessary for his or her health or
35
safety (whether to prevent a
deterioration in the person's
9
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 5
physical or mental condition or
otherwise) or for the protection of
members of the public; and
(b) the court has received a report in the
prescribed form from the authorised
5
psychiatrist of the approved mental
health service in which the person is
proposed to be detained and treated--
(i) recommending the making of the
order; and
10
(ii) stating that there are facilities or
services available in that service
for the treatment of the person.
(2) A court must not make a hospital security
order unless, but for the mental illness of the
15
person, the court would have sentenced the
person to a term of imprisonment.
(3) In determining whether or not to make a
hospital security order for a person, the court
must consider the person's current mental
20
condition, his or her medical, psychiatric and
forensic history and his or her social
circumstances.
(4) A hospital security order must specify the
duration of the order, which must not exceed
25
the period of imprisonment to which the
person would have been sentenced had the
order not been made.
Note: See section 18E, which provides for indefinite
30 hospital security orders.
(5) A hospital security order is sufficient
authority for the detention of the person who
is subject to the order in an approved mental
health service.
10
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 6
(6) A court, when making a hospital security
order, must fix a non-parole period in
accordance with section 11 as if the order
were a term of imprisonment.
(7) If at any time before the end of the period
5
specified in a hospital security order an order
is made under section 44 or 45 of the Mental
Health Act 1986 that the person be
discharged as a security patient, the hospital
security order has effect as a sentence of
10
imprisonment for the unexpired portion of it
and that unexpired portion must be served in
a prison unless the person is released on
parole.
15 Note: Under section 16A of the Mental Health Act
1986, a person who is serving a sentence in a
prison under sub-section (7) may be transferred
to an approved mental health service under his
or her hospital security order.".
6. New section 131 inserted
20
After section 130 of the Sentencing Act 1991
insert--
'131. Transitional provision--Sentencing and
Mental Health Acts (Amendment) Act
2005
25
(1) This Act, as in force immediately before the
commencement day, continues to apply on
and after that day to a person who,
immediately before that day, was the subject
of a hospital order made under
30
section 93(1)(d) as in force before that day.
(2) Sub-section (1) ceases to have effect 2 years
after the commencement day and
consequently the person ceases to be an
involuntary patient at that time, unless he or
35
she has been discharged from the hospital
order earlier.
11
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 2--Sentencing Act 1991
s. 6
(3) A hospital security order in force under
section 93(1)(e) immediately before the
commencement day is taken, on and after
that day, to be a hospital security order made
under section 93A for the remainder of its
5
duration.
(4) In this section--
"commencement day" means the day on
which section 6 of the Sentencing and
Mental Health Acts (Amendment)
10
Act 2005 comes into operation.'.
__________________
12
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 7
See:
PART 3--MENTAL HEALTH ACT 1986
Act No.
59/1986.
7. Definitions and references to hospital orders Reprint No. 8
as at
(1) In section 3(1) of the Mental Health Act 1986-- 6 December
2004
(a) insert the following definition-- and
amending
Act Nos
' "restricted involuntary treatment order"
5 108/2004,
means an order made under section 93 18/2005 and
42/2005.
of the Sentencing Act 1991;'; LawToday:
www.dms.
(b) the definition of "hospital order" is repealed; dpc.vic.
gov.au
(c) for the definition of "hospital security order"
substitute--
10
' "hospital security order" means--
(a) an order made under section 93A
of the Sentencing Act 1991; or
(b) an order made under section 16A
of this Act;';
15
(d) in the definition of "involuntary patient", in
paragraph (b), for "hospital order" substitute
"restricted involuntary treatment order";
(e) for the definition of "security patient"
substitute--
20
' "security patient" means--
(a) a person detained in an approved
mental health service under a
hospital security order or a
restricted hospital transfer order;
25
or
13
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 8
(b) a person detained in an approved
mental health service while
serving a sentence of
imprisonment within the meaning
of the International Transfer of
5
Prisoners Act 1997 of the
Commonwealth--
including a person who is on leave of
absence or special leave of absence or
is absent without leave;'.
10
(2) For section 3A(2)(d) of the Mental Health Act
1986 substitute--
"(d) section 16B (treatment for security
patients);".
(3) In sections 14(6) (including in the note at the foot
15
of that section) and 14E(4) of the Mental Health
Act 1986, for "hospital order" (wherever
occurring) substitute "restricted involuntary
treatment order".
8. Taking a person to an approved mental health
20
service
After section 9B(1)(c) of the Mental Health Act
1986 insert--
"(ca) section 12AA(7); or".
9. Discharge of involuntary patients
25
In section 15(1) of the Mental Health Act 1986,
for "36B(2) or 37(4)" substitute "36BA(2)
or 37B".
14
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 10
10. New section 15A substituted
For section 15A of the Mental Health Act 1986
substitute--
"15A. Restricted community treatment orders
(1) At any time, an authorised psychiatrist or the
5
chief psychiatrist may make a restricted
community treatment order for a person who
is subject to a restricted involuntary
treatment order if the authorised psychiatrist
or the chief psychiatrist (as the case requires)
10
is satisfied that--
(a) the criteria in section 93(1)(a) of the
Sentencing Act 1991 apply to the
person; and
(b) the treatment required for the person
15
can be obtained through the making of
a restricted community treatment order.
Note: The criteria in section 93(1)(a) of the
Sentencing Act 1991 are--
· the person appears to be mentally ill; and
20
· the person's mental illness requires
treatment and that treatment can be
obtained by the person being subject to a
restricted involuntary treatment order;
25 and
· because of the person's mental illness,
involuntary treatment of the person is
necessary for his or her health or safety
(whether to prevent a deterioration in the
30 person's physical or mental condition or
otherwise) or for the protection of
members of the public.
(2) A restricted community treatment order is an
order requiring the person to obtain
treatment for their mental illness while not
35
detained in an approved mental health
service.
15
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 10
(3) A restricted community treatment order for a
person remains in force until the first of the
following occurs--
(a) the order is revoked; or
(b) the person is discharged from the order;
5
or
(c) the person is discharged from their
restricted involuntary treatment order;
or
(d) the person's restricted involuntary
10
treatment order expires.
Note: See sections 36D(8) and 37A(4) for the effect
of the discharge from a restricted community
treatment order on the person's restricted
15 involuntary treatment order.
(4) A restricted community treatment order must
specify any conditions that the authorised
psychiatrist or chief psychiatrist making the
order considers appropriate.
(5) The authorised psychiatrist or chief
20
psychiatrist who makes a restricted
community treatment order for a person
must--
(a) inform the person that the order has
been made; and
25
(b) give the person a copy of the order; and
(c) inform the person of the grounds for
making the order.
(6) If a restricted community treatment order is
made by an authorised psychiatrist, he or she
30
must notify the chief psychiatrist in writing
as soon as practicable.".
16
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 11
11. Restricted community treatment orders
(1) In the Mental Health Act 1986--
(a) in section 15AB(2)(a) and (3)(a), for
"section 15A(1)" substitute "section
93(1)(a) of the Sentencing Act 1991";
5
(b) section 15B is repealed;
(c) in section 15C(1), before "chief psychiatrist"
insert "authorised psychiatrist or the";
(d) in section 15C(2)--
(i) for "chief psychiatrist does so, the chief
10
psychiatrist" substitute "authorised
psychiatrist or the chief psychiatrist
does so, the authorised psychiatrist or
the chief psychiatrist (as the case
requires)";
15
(ii) in paragraph (c), for "chief psychiatrist"
substitute "authorised psychiatrist or
the chief psychiatrist (as the case
requires)".
(2) For section 15D(1) of the Mental Health Act
20
1986 substitute--
"(1) The authorised psychiatrist or the chief
psychiatrist may revoke a restricted
community treatment order if satisfied on
reasonable grounds that--
25
(a) the criteria in section 93(1)(a) of the
Sentencing Act 1991 still apply to the
person subject to the order; and
(b) the treatment required for the person
cannot be obtained under the order.
30
17
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 11
(1A) The authorised psychiatrist or the chief
psychiatrist may also revoke a restricted
community treatment order if--
(a) the authorised psychiatrist or the chief
psychiatrist (as the case requires) is
5
satisfied on reasonable grounds that the
person subject to the order has not
complied with the order or the person's
treatment plan; and
(b) reasonable steps have been taken,
10
without success, to obtain compliance
with the order or plan; and
(c) the authorised psychiatrist or the chief
psychiatrist (as the case requires) is
satisfied on reasonable grounds that
15
there is a significant risk of
deterioration in the person's mental or
physical condition because of the non-
compliance.".
(3) In the Mental Health Act 1986--
20
(a) in section 15D(2)--
(i) before "chief psychiatrist" (where first
occurring) insert "authorised
psychiatrist or the";
(ii) in paragraph (a), for "chief psychiatrist"
25
substitute "authorised psychiatrist or
the chief psychiatrist (as the case
requires)";
(iii) in paragraph (b), for "hospital order"
substitute "restricted involuntary
30
treatment order";
(b) in section 15E(1), for "hospital order"
substitute "restricted involuntary treatment
order";
(c) section 15E(2) is repealed.
35
18
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 12
(4) After section 15E(3) of the Mental Health Act
1986 insert--
"(4) A person is discharged from his or her
restricted community treatment order, if any,
(but not his or her restricted involuntary
5
treatment order) on the making of a hospital
transfer order or restricted hospital transfer
order for the person.".
12. Transfer of mentally ill prisoners
(1) For section 16(1A) of the Mental Health Act
10
1986 substitute--
"(1A) Sub-section (1) does not apply to a person
who is--
(a) detained in a prison under the Crimes
(Mental Impairment and Unfitness to
15
be Tried) Act 1997 (whether on
remand or under a supervision order
made under that Act); or
(b) serving a sentence in a prison under
section 93A(7) of the Sentencing Act
20
1991.".
(2) For section 16(2)(a) and (b) of the Mental Health
Act 1986 substitute--
"(a) the Secretary has received a certificate by a
psychiatrist and is satisfied that--
25
(i) the person appears to be mentally ill;
and
(ii) the person's mental illness requires
immediate treatment and that treatment
can be obtained by the person being
30
subject to an order under this section;
and
19
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 12
(iii) because of the person's mental illness,
the detention and treatment of the
person in an approved mental health
service is necessary for his or her health
or safety (whether to prevent a
5
deterioration in the person's physical or
mental condition or otherwise) or for
the protection of members of the
public; and
(b) the Secretary has received a report from the
10
authorised psychiatrist of the approved
mental health service to which it is proposed
to transfer the person--
(i) recommending that the transfer be
made; and
15
(ii) stating that there are facilities or
services available in that service for the
treatment of the person.".
(3) For section 16(5) of the Mental Health Act 1986
substitute--
20
"(5) A hospital transfer order or restricted
hospital transfer order is sufficient authority
for the detention of the person who is subject
to the order in an approved mental health
service.".
25
(4) Section 16(6) of the Mental Health Act 1986 is
repealed.
20
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 13
13. New sections 16A and 16B inserted
After section 16 of the Mental Health Act 1986
insert--
"16A. Transfer of prisoners subject to hospital
security orders
5
(1) The Secretary to the Department of Justice
may by an order under this section transfer to
an approved mental health service a person
who is serving a sentence in a prison under
section 93A(7) of the Sentencing Act 1991
10
if--
(a) the Secretary is satisfied, by the
production of a certificate of a
psychiatrist, that--
(i) the person appears to be mentally
15
ill; and
(ii) the person's mental illness
requires treatment and that
treatment can be obtained by the
person being subject to an order
20
under this section; and
(iii) because of the person's mental
illness, the detention and
treatment of the person in an
approved mental health service is
25
necessary for his or her health or
safety (whether to prevent a
deterioration in the person's
physical or mental condition or
otherwise) or for the protection of
30
members of the public; and
(b) the Secretary has received a report from
the authorised psychiatrist of the
approved mental health service to
which it is proposed to transfer the
35
person--
21
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 14
(i) recommending that the transfer be
made; and
(ii) stating that there are facilities or
services available in that service
for the treatment of the person.
5
(2) An order under this section has effect as a
hospital security order under section 93A of
the Sentencing Act 1991 for the unexpired
portion of the sentence of imprisonment.
10 Note: Section 93A(5) of the Sentencing Act 1991
provides that a hospital security order is
sufficient authority for the detention of the
person who is subject to the order in an
approved mental health service.
16B. Treatment for security patients
15
(1) A security patient is to be given treatment for
his or her mental illness.
(2) If a security patient refuses to consent to
necessary treatment or is not capable of
consenting to treatment for his or her mental
20
illness consent in writing may be given by
the authorised psychiatrist.
Note: In considering whether a person has refused or
is unable to consent to treatment, see
25 section 3A.".
14. Treatment plans
For section 19A(4)(g) of the Mental Health Act
1986 substitute--
"(g) the intervals at which the supervising
medical practitioner must submit a written
30
report concerning the patient's treatment to
the monitoring psychiatrist.".
22
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 15
15. Appeals and reviews
(1) After section 22(2) of the Mental Health Act
1986 insert--
"(3) In the case of a review or an appeal of a
restricted involuntary treatment order or
5
restricted community treatment order, the
Board must, in addition to the matters in sub-
section (2), consider the patient's forensic
history.".
(2) In the Mental Health Act 1986--
10
(a) in sections 29(1)(a)(i), 30(1)(a) and 30(3)(a),
for "hospital order" substitute "restricted
involuntary treatment order";
(b) in section 30(4), omit "or restricted
community treatment order".
15
(3) For section 30(5) of the Mental Health Act 1986
substitute--
"(5) If a restricted community treatment order has
been in force for at least 12 months, the
Board must conduct a review of the order
20
within 8 weeks after the end of that 12 month
period.".
16. New section 36B substituted and section 36BA
inserted
For section 36B of the Mental Health Act 1986
25
substitute--
"36B. Power of Board on appeal or review of
restricted involuntary treatment orders--
patients who are detained
(1) This section applies on an appeal or review
30
for a patient who is detained in an approved
mental health service under a restricted
involuntary treatment order.
23
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 16
(2) If the Board considers that the criteria in
section 93(1)(a) of the Sentencing Act 1991
do not apply to the patient, the Board must
order that the patient be discharged from the
restricted involuntary treatment order.
5
(3) If the Board is satisfied that the criteria in
section 93(1)(a) of the Sentencing Act 1991
apply to the patient, the Board must confirm
the restricted involuntary treatment order.
(4) If the Board confirms the restricted
10
involuntary treatment order, the Board may
order the authorised psychiatrist to make a
restricted community treatment order for the
patient within a reasonable period specified
by the Board, if the Board considers that the
15
treatment required for the person can be
obtained through the making of a restricted
community treatment order.
(5) The authorised psychiatrist may apply to the
Board, at any time during the period
20
specified under sub-section (4), for the Board
to reconsider an order made under that sub-
section.
(6) Sections 31 to 35 and this section apply to an
application under sub-section (5) as if it were
25
a review.
Note: The Board must take various factors into
consideration in deciding what to do on the
appeal or review, including the patient's social
30 circumstances--see section 22(2) and (3).
24
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 17
36BA. Power of Board on appeal or review of
assessment orders or diagnosis,
assessment and treatment orders
(1) This section applies on an appeal or review
for a patient who is detained in an approved
5
mental health service under an assessment
order or a diagnosis, assessment and
treatment order.
(2) If the Board considers that the continued
detention of the patient as an involuntary
10
patient is unnecessary, the Board must order
that the patient be discharged from the order.
(3) If the Board considers that the continued
detention of the patient as an involuntary
patient is necessary, the Board must confirm
15
the order.
(4) The Board must have regard to the criteria in
section 90(1)(b) or 91(1)(b) of the
Sentencing Act 1991 (as the case requires)
in making a decision on the appeal or
20
review.".
17. Power of Board on appeal or review for patients on
community treatment orders
(1) For section 36C(6)(b) of the Mental Health Act
1986 substitute--
25
"(b) give the person written details of the
variation; and".
(2) After section 36C(6) of the Mental Health Act
1986 insert--
"(7) If the Board varies a community treatment
30
order, the authorised psychiatrist must give
the person subject to the order a copy of the
order as varied within a reasonable period.".
25
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 18
18. New section 36D substituted
For section 36D of the Mental Health Act 1986
substitute--
"36D. Power of Board on appeal or review for
patients on restricted community
5
treatment orders
(1) This section applies on an appeal or review
for a patient who is subject to a restricted
community treatment order.
(2) If the Board considers that the criteria in
10
section 93(1)(a) of the Sentencing Act 1991
do not apply to the patient, the Board must
order that the patient be discharged from the
restricted community treatment order.
(3) If the Board is satisfied that the criteria in
15
section 93(1)(a) of the Sentencing Act 1991
apply to the patient, the Board may--
(a) confirm or vary the restricted
community treatment order; or
(b) revoke the restricted community
20
treatment order if satisfied on
reasonable grounds that the treatment
required for the patient cannot be
obtained under the order.
(4) The Board may also revoke a restricted
25
community treatment order if--
(a) the Board is satisfied on reasonable
grounds that the patient has not
complied with the order or the patient's
treatment plan; and
30
(b) reasonable steps have been taken,
without success, to obtain compliance
with the order or plan; and
26
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 18
(c) the Board is satisfied on reasonable
grounds that there is a significant risk
of deterioration in the patient's mental
or physical condition because of the
non-compliance.
5
Note: The Board must take various factors into
consideration in deciding what to do on the
appeal or review, including the patient's social
circumstances--see section 22(2) and (3).
(5) If the Board revokes a restricted community
10
treatment order--
(a) the Board must make reasonable efforts
to inform the patient that the order has
been revoked and that the patient must
go to an approved mental health
15
service; and
(b) the patient remains an involuntary
patient under his or her restricted
involuntary treatment order and is taken
to be absent without leave from an
20
approved mental health service.
Note: Section 43 provides for the apprehension
of involuntary patients absent without
leave.
(6) If the Board varies a restricted community
25
treatment order, the Board must--
(a) inform the person that the order has
been varied; and
(b) give the person written details of the
variation; and
30
(c) inform the person of the grounds on
which the Board decided to vary the
order.
(7) If the Board varies a restricted community
treatment order, the authorised psychiatrist
35
must give the person subject to the order a
27
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 19
copy of the order as varied within a
reasonable period.
(8) On the discharge of a patient from a
restricted community treatment order under
sub-section (2), the patient is taken to be
5
discharged from his or her restricted
involuntary treatment order and,
consequently, he or she ceases to be an
involuntary patient.".
19. New section 37 substituted and sections 37A, 37B
10
and 37C inserted
For section 37 of the Mental Health Act 1986
substitute--
"37. Discharge of involuntary patients--
involuntary treatment orders and
15
community treatment orders
(1) If the authorised psychiatrist considers that
the criteria in section 8(1) do not apply to a
person who is detained in the approved
mental health service as an involuntary
20
patient under an involuntary treatment order,
the authorised psychiatrist must discharge
the person from the involuntary treatment
order.
(2) If the authorised psychiatrist considers that
25
the criteria in section 8(1) do not apply to a
person who is receiving treatment from the
approved mental health service under a
community treatment order, the authorised
psychiatrist must discharge the person from
30
the community treatment order.
Note: See section 14(5) for the effect of the discharge
from a community treatment order on the
person's involuntary treatment order.
28
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 19
(3) For the avoidance of doubt, a person who is
discharged from an involuntary treatment
order under sub-section (1) remains an
involuntary patient if the authorised
psychiatrist makes an application under
5
section 12A for approval of the continued
detention and treatment of the person.
37A. Discharge of involuntary patients--
restricted involuntary treatment orders
and restricted community treatment
10
orders
(1) If the chief psychiatrist considers that the
criteria in section 93(1)(a) of the Sentencing
Act 1991 do not apply to a person who is
detained in an approved mental health
15
service as an involuntary patient under a
restricted involuntary treatment order, the
chief psychiatrist must discharge the person
from the restricted involuntary treatment
order.
20
(2) If the chief psychiatrist considers that the
criteria in section 93(1)(a) of the Sentencing
Act 1991 do not apply to a person who is
receiving treatment from an approved mental
health service under a restricted community
25
treatment order, the chief psychiatrist must
discharge the person from the restricted
community treatment order.
(3) In determining whether or not to discharge a
person from a restricted involuntary
30
treatment order or restricted community
treatment order, the chief psychiatrist must
have regard primarily to the person's current
mental condition and consider his or her
medical, psychiatric and forensic history and
35
his or her social circumstances.
29
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 19
(4) On the discharge of a person from a
restricted community treatment order under
sub-section (2), the person is taken to be
discharged from his or her restricted
involuntary treatment order and,
5
consequently, he or she ceases to be an
involuntary patient.
37B. Discharge of involuntary patients--
assessment orders and diagnosis,
assessment and treatment orders
10
If the chief psychiatrist, having regard to the
criteria in section 90(1)(b) or 91(1)(b) of the
Sentencing Act 1991 (as the case requires),
considers that the continued detention of a
person in an approved mental health service
15
under an assessment order or a diagnosis,
assessment and treatment order is
unnecessary, the chief psychiatrist must
order that the person be discharged from the
order.
20
37C. Discharge of involuntary patients--
hospital transfer orders
If the chief psychiatrist, having regard to the
criteria in section 16(2)(a) and (4), considers
that the continued detention of a person in an
25
approved mental health service under a
hospital transfer order is unnecessary, the
chief psychiatrist must, after advising the
Secretary to the Department of Justice, order
that the person be discharged from the order
30
and be returned to a prison or other place of
confinement (within the meaning of
section 16).".
30
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 20
20. Consequential amendment of section 38
In section 38(b) of the Mental Health Act 1986,
for "section 37(3)" substitute "section 37C".
21. New section 44 substituted
For section 44 of the Mental Health Act 1986
5
substitute--
"44. Board may order discharge
On hearing an appeal or review, the Board
may order that a person be discharged as a
security patient and returned to a prison or
10
other place of confinement if the Board is
not satisfied that the continued detention of
the person as a security patient is necessary,
having regard to the clinical guidelines
(if any) under section 43A and--
15
(a) if the person is subject to a restricted
hospital transfer order--the criteria
specified in section 16(2)(a) and (4); or
(b) if the person is subject to a hospital
security order--the criteria specified in
20
section 93A(1)(a) of the Sentencing
Act 1991.".
22. Discharge by chief psychiatrist
For section 45(1) of the Mental Health Act 1986
substitute--
25
"(1) The chief psychiatrist may order that a
person be discharged as a security patient
and returned to a prison or other place of
confinement if the chief psychiatrist is
satisfied that the continued detention of the
30
person as a security patient is not necessary,
having regard to the clinical guidelines
(if any) under section 43A and--
31
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 23
(a) if the person is subject to a restricted
hospital transfer order--the criteria
specified in section 16(2)(a) and (4); or
(b) if the person is subject to a hospital
security order--the criteria specified in
5
section 93A(1)(a) of the Sentencing
Act 1991.".
23. New section 46 substituted
For section 46 of the Mental Health Act 1986
substitute--
10
"46. Notification and discharge
(1) This section applies if--
(a) the Board exercises its power under
section 44 to discharge a person as a
security patient; or
15
(b) the chief psychiatrist exercises his or
her power under section 45 to discharge
a person as a security patient.
(2) The Board or the chief psychiatrist (as the
case requires) must immediately notify the
20
Secretary to the Department of Justice.
(3) The person is discharged as a security
patient--
(a) if an order has been made under
section 74 of the Corrections Act 1986
25
that the person be released on parole
and the time for release has occurred--
on the making of the order for
discharge; or
(b) if not--on entering the legal custody of
30
the Secretary to the Department of
Justice.".
32
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 24
24. Automatic discharge as a security patient
In section 50(1) of the Mental Health Act
1986--
(a) for "under section 16" substitute "as a
security patient";
5
(b) in paragraph (c), for "training centre."
substitute "training centre; or";
(c) after paragraph (c) insert--
"(d) the expiry of the person's hospital
security order.".
10
25. New section 150 inserted
After section 149 of the Mental Health Act 1986
insert--
'150. Transitional provision--Sentencing and
Mental Health Acts (Amendment) Act
15
2005
(1) This Act, as in force immediately before the
commencement day, continues to apply on
and after that day to a person who,
immediately before that day, was the subject
20
of a hospital order made under section
93(1)(d) of the Sentencing Act 1991 or a
restricted community treatment order made
under section 15A of this Act as in force
before that day.
25
(2) On and from the commencement day a
person who immediately before that day is
detained in an approved mental health
service under an order made under section 16
and who, immediately before the making of
30
that order, had been detained in a prison
under an order made under section 93(5) of
the Sentencing Act 1991 must be taken to be
detained in that service under a hospital
security order.
35
33
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 3--Mental Health Act 1986
s. 25
(3) Sub-section (2) applies irrespective of the
number of times the person has been
transferred between a prison and an
approved mental health service.
(4) Sub-section (1) ceases to have effect 2 years
5
after the commencement day.
(5) In this section--
"commencement day" means the day on
which section 25 of the Sentencing
and Mental Health Acts
10
(Amendment) Act 2005 comes into
operation.'.
__________________
34
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 4--Corrections Act 1986
s. 26
See:
PART 4--CORRECTIONS ACT 1986
Act No.
117/1986.
26. Parole orders for persons subject to hospital Reprint No. 5
as at
security orders 1 January
2004
(1) Insert the following definition in section 3(1) of and
the Corrections Act 1986--
5 amending
Act Nos
' "hospital security order" has the same meaning 11/1993,
53/2003,
as in the Sentencing Act 1991;'. 14/2004,
74/2004,
(2) After section 74(8) of the Corrections Act 1986 97/2004,
108/2004,
insert-- 1/2005, 2/2005
and 18/2005.
"(8A) The Board may make a parole order for a
10 LawToday:
person who is detained in an approved www.dms.
dpc.vic.
mental health service under a hospital gov.au
security order, but the parole order does not
take effect until the person is discharged as a
security patient under the Mental Health
15
Act 1986.".
(3) In section 74(9) of the Corrections Act 1986,
after "imprisonment" insert "and a person who is
subject to a hospital security order".
__________________
35
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 5--Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
s. 27
See: PART 5--CRIMES (MENTAL IMPAIRMENT AND
Act No.
UNFITNESS TO BE TRIED) ACT 1997
65/1997.
Reprint No. 2
as at
27. Leave of absence
1 July 2002
and
(1) In the Crimes (Mental Impairment and
amending
Unfitness to be Tried) Act 1997--
5 Act Nos
44/2004,
(a) in section 48--
108/2004,
10/2005 and
18/2005. (i) omit "only";
LawToday:
www.dms.
(ii) omit "who are subject to a supervision
dpc.vic.
order";
gov.au
(b) for section 49(d) substitute--
10
"(d) extended leave.";
(c) at the foot of section 49 insert--
"Note: Some forensic patients and forensic residents
cannot be granted extended leave--see
15 section 57(4).";
(d) section 56(2) is repealed.
(2) For section 57(4) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act
1997 substitute--
"(4) This section does not apply to--
20
(a) a forensic patient who is--
(i) remanded in custody in an
approved mental health service
under this Act; or
(ii) detained in an approved mental
25
health service under section 30(2)
or 30A(3); or
(iii) deemed to be a forensic patient by
section 73E(4) or 73K(8); or
36
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 5--Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
s. 27
(iv) detained in an approved mental
health service under section
20BJ(1) or 20BM of the Crimes
Act 1914 of the Commonwealth;
or
5
(b) a forensic resident who is--
(i) remanded in custody in a
residential service under this Act;
or
(ii) detained in a residential service
10
under section 30(2) or 30A(3); or
(iii) deemed to be a forensic resident
by section 73E(4) or 73K(8).".
(3) In section 60 of the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997, omit
15
"who are subject to supervision orders and by
federal forensic patients".
__________________
37
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 6--Consequential Amendment of Other Acts
s. 28
PART 6--CONSEQUENTIAL AMENDMENT OF OTHER
ACTS
28. Magistrates' Court Act 1989
In section 16I(b)(iv) of the Magistrates' Court
Act 1989, for "Mental Health Act 1986"
5
substitute "Sentencing Act 1991".
29. Juries Act 2000
In Schedule 1 to the Juries Act 2000, in
clauses 1(b), 2(b) and 3(b), for "section 93"
substitute "section 93A".
10
30. Sex Offenders Registration Act 2004
In section 3 of the Sex Offenders Registration
Act 2004--
(a) in paragraph (a) of the definition of
"government custody"--
15
(i) in sub-paragraphs (iii) and (iv), after
"1997" insert "who is not under a
grant of extended leave under
section 57 of that Act";
(ii) in sub-paragraph (v), for "made under
20
section 93(1)(e)" substitute "within the
meaning";
(iii) in sub-paragraph (vii), for "a hospital
order made under section 93(1)(d) of
the Sentencing Act 1991" substitute
25
"an order made under section 93 of the
Sentencing Act 1991 who is not also
under an order made under section 15A
of the Mental Health Act 1986";
(b) in paragraph (ad) of the definition of
30
"sentence", for "section 93(1)(d)" substitute
"section 93".
38
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Part 6--Consequential Amendment of Other Acts
s. 31
31. Serious Sex Offenders Monitoring Act 2005
In the Serious Sex Offenders Monitoring Act
2005--
(a) in section 3(1)--
(i) insert the following definition--
5
' "restricted involuntary treatment
order" means an order made
under section 93 of the Sentencing
Act 1991;';
(ii) the definition of "hospital order" is
10
repealed;
(iii) in the definition of "hospital security
order", for "section 93(1)(e)" substitute
"section 93A";
(b) in section 19(1)(d), for "hospital order"
15
substitute "restricted involuntary treatment
order".
39
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
Sentencing and Mental Health Acts (Amendment) Act 2005
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
40
551269B.I1-16/8/2005 BILL LA INTRODUCTION 16/8/2005
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