Victorian Consolidated Legislation

Mental Health Act 1986 - SECT 16

Transfer of mentally ill prisoners

16. Transfer of mentally ill prisoners



(1) The Secretary to the Department of Justice may by an order under this
section transfer a person who-

   (a)  is lawfully imprisoned or detained in a prison or other place of
        confinement; and

   (b)  appears to be mentally ill-

to an approved mental health service.

(1A) Subsection (1) does not apply to a person who is-

   (a)  detained in a prison under the Crimes (Mental Impairment and Unfitness
        to be Tried) Act 1997 (whether on remand or under a supervision order
        made under that Act); or

   (b)  serving a sentence in a prison under section 93A(7) of the
        Sentencing Act 1991.

(2) The Secretary to the Department of Justice cannot make an order under this
section unless-





   (a)  the Secretary has received a certificate by a psychiatrist and is
        satisfied that-

   (i)  the person appears to be mentally ill; and

   (ii) the person's mental illness requires immediate treatment and that
        treatment can be obtained by the person being subject to an order
        under this section; and

   (iii) because of the person's mental illness, the detention and treatment
        of the person in an approved mental health service is necessary for
        his or her health or safety (whether to prevent a deterioration in the
        person's physical or mental condition or otherwise) or for the
        protection of members of the public; and

   (b)  the Secretary has received a report from the authorised psychiatrist
        of the approved mental health service to which it is proposed to
        transfer the person-

   (i)  recommending that the transfer be made; and

   (ii) stating that there are facilities or services available in that
        service for the treatment of the person.

(3) The Secretary to the Department of Justice may make either of the
following orders under this section-

   (a)  an order under which the person is admitted to and detained in an
        approved mental health service as an involuntary patient (hospital
        transfer order);

   (b)  an order under which the person is admitted to and detained in an
        approved mental health service as a security patient (restricted
        hospital transfer order).

(4) In determining whether to make a hospital transfer order or restricted
hospital transfer order, the Secretary to the Department of Justice must have
regard to the public interest and all the circumstances of the case including
the person's criminal record and psychiatric history.

(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.



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(7) In this section-

   (a)  a reference to the Secretary to the Department of Justice includes a
        reference to-

   (i)  the Secretary in relation to a person detained in a remand centre,
        youth residential centre or youth justice centre within the meaning of
        the Children, Youth and Families Act 2005; and

   (ii) the Chief Commissioner of Police in relation to a person serving a
        sentence of imprisonment in a police gaol within the meaning of the
        Corrections Act 1986 or being held in police custody on the order of a
        court; and

   (b)  a reference to a prison or other place of confinement includes a
        reference to-

   (i)  a remand centre, youth residential centre or youth justice centre
        within the meaning of the Children, Youth and Families Act 2005; and

   (ii) a police gaol within the meaning of the Corrections Act 1986.