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Provisions regarding the criminal justice system

Transcript: Provisions regarding the criminal justice system—Understanding the Mental Health Act 2016

This section addresses the provisions in the Act that deal with situations where persons come into contact with the criminal justice system.

Psychiatrist Reports

In specific circumstances, a person may request a free psychiatrist report which expresses an opinion on whether the person was of unsound mind when an alleged offence happened or is unfit for trial.

A person may request a report if:

  • the person is on a treatment authority, forensic order or "treatment support order", and
  • is charged with a "serious offence".

A serious offence is an important concept in the Act.  It applies to requesting a psychiatrist report and to the jurisdiction of the Mental Health Court.

A serious offence is an indictable offence, other than an offence that must, under the Criminal Code, be heard by a magistrate.  Examples of indictable offences that must be heard by a magistrate are common assault and most forms of wilful damage.  This approach mirrors the way that offences are heard in the criminal courts.  This means that a request for a psychiatrist report, and the jurisdiction of the Mental Health Court, apply for offences such as arson, grievous bodily harm, indecent treatment, robbery, rape, serious assault and manslaughter.

A request for a psychiatrist report can be made by the person, a nominated support person, an attorney, a guardian or a lawyer.

An authorised psychiatrist has up to 60 days to prepare a psychiatrist report. This can be extended by a further 30 days by the Chief Psychiatrist, if necessary.

The Act requires a person to participate in an examination for the report in good faith, for example, by attending appointments and participating in the examination process.  If this does not occur, the request for a report can be revoked by the administrator.

The Chief Psychiatrist can request a second psychiatrist's report, if needed.

The Chief Psychiatrist also has a reserve power to direct the preparation of a psychiatrist report in the public interest, but it is expected that this power would rarely be used.  It applies to any person charged with a serious offence, whether or not they are under an order under the Act.

Mental Health Court

The Mental Health Court remains in place under the Mental Health Act 2016.

The Court is constituted by a single Supreme Court Judge who is assisted by one or two assisting clinicians who are mostly psychiatrists.  If the proceeding relates to a person with an intellectual disability, the assistant clinician may be a person with expertise in the care of persons with an intellectual disability, such as a psychologist.

The role of the Court is to hear serious offences – to decide if the person was of unsound mind at the time of the offence or is unfit for trial.  If a person is found of unsound mind or permanently unfit for trial, the proceedings against the person are discontinued.

The Court also has a role in managing the risks to the community for persons charged with serious offences.  As part of this role, the Court may make a forensic order for the person which enables a person to be treated for a mental illness without consent and, if necessary, to detain a person in an authorised mental health service.

The Court may make a mental health forensic order or, if the person only requires care for an intellectual disability, a disability forensic order.

This is a similar model to the one introduced under the Mental Health Act 2000.

The Court also has discretion to make a "treatment support order".

Treatment support orders involve less oversight than forensic orders.

As with treatment authorities, a person on a treatment support order is to be treated in the community, unless the person's treatment and care needs cannot be met that way.

Also, the Mental Health Court and the Mental Health Review Tribunal do not place restrictions on the amount of treatment the person may receive in the community, as occurs with forensic orders.

In addition, the level of clinical supervision under the relevant Chief Psychiatrist Policy is less for a person on a treatment support order than for a person on a forensic order.

The Mental Health Court also has powers in relation to forensic orders.

For the most serious criminal offences - such as murder, manslaughter, rape and grievous bodily harm – the Court has the discretion to impose a non-revocation period on the order of up to 10 years.

The Court may also recommend to an authorised mental health service that a person undertake an intervention program, such as a drug or alcohol management program.  The patient's participation in such a program, if offered to the patient, is considered by the Mental Health Review Tribunal when the order is reviewed.

Magistrates

Magistrates are given specific powers under the Act in relation to persons who have a mental illness, intellectual disability or other mental condition.

Magistrates have the authority to dismiss charges against the person if the person was, or appears to have been, of unsound mind at the time of the alleged offence, or is not fit for trial.  This authority is supported by a revised and expanded Court Liaison Service in Queensland Health.

Magistrates also have the discretion to refer a person to an authorised mental health service for an examination under an "examination order".  The order cannot mandate treatment, but an examination may result in a person being placed on a treatment authority, a plan being developed for voluntary treatment or, if a person is already on an authority or order, a change to their treatment.

Magistrates also have the authority to refer any indictable offence to the Mental Health Court.  This may occur, for example, if there has been repeat offending and previous attempts at voluntary treatment were unsuccessful.

Classified patients

A classified patient is a person in custody in prison or a watch-house who becomes acutely unwell and needs to be transferred to an authorised mental health service for treatment.

There are three scenarios when this may occur:

  • The person may already be on a treatment authority or order under the Act;
  • a recommendation for assessment is made for the person, or
  • a person voluntarily agrees to go to an authorised mental health service.

In all cases, the relevant administrator and custodian must agree to the transfer.

This is a similar model to the one under the Mental Health Act 2000.

The Chief Psychiatrist must be notified if the person is not transferred within 72 hours after a recommendation for a transfer is made.  The Chief Psychiatrist may then negotiate a transfer and, if necessary, direct that a transfer to an authorised mental health service take place.

In addition, a person who is already in an authorised mental health service under an examination order made by a magistrate, or a court examination order made by the Mental Health Court, may become a classified patient in a similar way.

Victims

Under the Mental Health Act 2016, victims of unlawful acts are given specific rights.

The Act recognises the needs of victims by stating principles for supporting victims.

Victims are entitled to present a 'victim impact statement' to the Mental Health Court, outlining the effect that the unlawful act has had on them.  The victim impact statement may include a recommendation to the Court that a non-contact condition be placed on a forensic order or treatment support order.  Victim impact statements may also be presented to the Tribunal when a forensic order or treatment support order is being reviewed.

A victim may receive specific information about a person on a forensic order or treatment support order under an "information notice".  For example, a victim may receive information about the timing of a Tribunal review of an order and the decisions made on the review.  A victim may also receive brief information about the reasons the patient has been allowed increased treatment in the community under an order, but the victim does not receive any clinical information about a patient.

The Chief Psychiatrist decides who is entitled to receive information under an information notice.

Last updated: 26 July 2019