Courts, forensic patients and people in custody
Persons charged with offences
Where a person with a mental illness, or an intellectual or cognitive disability is charged with committing an offence, the Act enables them to be diverted from the criminal justice system.
Additional support is also provided by mental health services to consumers charged with offences.
Flowchart 1: Overview
Flowcharts 2(a)–(b): Report on request and direction for report
Flowchart 3: Direction for report (Chief Psychiatrist initiative)
Flowchart 4: Determining referral to Mental Health Court
Fact Sheet: Psychiatrist reports
Clinical Note: Psychiatrist Report
FAQ: Conditions of bail (UNDER REVIEW)
Magistrates are given specific powers under the Mental Health Act 2016 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 (‘simple’ offences), 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.
Magistrates also have the discretion to refer a person to an authorised mental health service for an examination under an Examination Order (see Examinations and Assessment page). The order cannot enforce treatment, but an examination may result in a person being placed on a Treatment Authority (see Treatment and Care page).
Magistrates also have the authority to refer any indictable offence to the Mental Health Court.
Fact Sheet: Magistrates court
Court Liaison Service
The Queensland Health Court Liaison Service (CLS) supports the Magistrates Court by assisting in the identification of mental health treatment needs of a person and facilitating appropriate referral to services, including diversion from the criminal justice system.
The CLS also undertakes mental health assessments in relation to a person’s unsoundness of mind at the time of committing the alleged offence or fitness for trial. These assessments are conducted by accredited senior mental health clinicians with the support of a consultant psychiatrist, to assist Magistrates.
Policy: Court Liaison Service
Mental Health Court
Psychiatrist reports for persons charged with a serious offence are used to inform decisions about further action in relation to a charge including whether a reference should be made to the Mental Health Court to determine matters of unsoundness of mind and fitness for trial.
A criminal case can be referred to the Mental Health Court if it is believed that the alleged offender was of unsound mind or there is a question relating to the alleged offender’s fitness for trial. The Mental Health Court is charged with deciding the state of mind of persons charged with criminal offences.
If the Court finds that a person was of unsound mind at the time of the offence or is permanently unfit for trial, the proceedings against the person are discontinued (dismissed) and the Court may make a Forensic Order or Treatment Support Order for the person.
If the Order results from a finding of temporary unfitness for trial and the tribunal subsequently finds that the person is fit for trial, the criminal proceedings against the person are recommenced. In this circumstance, the Order ends when the person appears before the court.
Forensic Orders and Treatment Support Orders
A Forensic Order is made when the Mental Health Court determines it is necessary to protect the person and the safety of the community, enable the provision of involuntary mental health treatment and, if necessary, to ensure a person remains in an authorised mental health service.
The Court must decide if the category of the order is ‘inpatient’ or ‘community’, by weighing the rights of the individual and the level of risk to the safety of the community. The Court may also impose conditions on a person’s forensic order, for example requiring them to take medications and attend appointments.
Strict clinical oversight is required for treatment and care under a Forensic Order including regular clinical assessment by an authorised doctor and considerations during decision making such as changes to the category of the order and granting or changing conditions for treatment in the community during the patient’s recovery.
Fact Sheet: Forensic Orders
Considerations for people with a disability
There are two types of orders, a Forensic Order (mental health) or, if the person only requires care for an intellectual disability, a Forensic Order (disability).
In a small number of cases, a person may be receiving treatment under both a Forensic Order (disability) and a Forensic Order (mental health) to ensure their needs are met for each condition.
Fact Sheet: Care of Forensic Order (Disability) patients
Fact Sheet: Persons with an intellectual disability
Treatment Support Orders
The Mental Health Court makes this order as a less restrictive option than a Forensic Order.
The category of a Treatment Support Order must be a community category, unless it is necessary for the person to be an inpatient as a result of their treatment and care needs or to protect the safety of the person or others.
A Treatment Support Order may also be made by the Mental Health Review Tribunal as a ‘step down’ to support a person’s recovery in circumstances where the Tribunal has revoked the person’s Forensic Order.
Fact Sheet: Treatment Support Order
Category, conditions and limited community treatment
An authorised doctor is responsible for management of a patient's treatment and care including ongoing review and amendment of the category, conditions or limited community treatment of a patient’s Forensic Order or Treatment Support Order.
Involuntary patients may be treated as an inpatient in an authorised mental health service or receive care in the community on a limited or ongoing basis.
Limited community treatment supports a patient’s recovery by transitioning the patient from the inpatient environment to living in the community with the appropriate treatment and care and may include:
- leave in the grounds and buildings of an authorised mental health service
- escorted leave outside of an authorised mental health service, or
- overnight leave up to 7 days.
Under a community category, a person receives treatment and care while living in the community on an ongoing basis (treatment authority, forensic order or treatment support order).
Risk assessment and peer review
While it is not possible to identify and eliminate risk entirely, the objective of good clinical risk management is to minimise the likelihood of an adverse outcome. Various mechanisms for assessment and review within the service outside of the consumers treating team are utilised.
Clinical Note: Involuntary Patient and Voluntary High Risk Patient Summary
As a key safeguard the Mental Health Review Tribunal is responsible for regularly reviewing patients on a Forensic Order or Treatment Support Order to review the appropriateness of the order and decide whether to confirm (continue) or revoke (end) the Order (see Mental Health Review Tribunal page).
In some circumstances, the Tribunal may revoke the Order and make a Treatment Authority for the person to ensure their mental health treatment needs continue to be met (see Treatment and Care page).
Persons transferred from custody (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. Classified patients may be involuntary or voluntary.
The instances in which a person may be transferred to an authorised mental health service for treatment are:
- for an involuntary assessment under a recommendation for assessment to decide whether a treatment authority should be made
- if the person is already under a treatment authority, forensic order (mental health) or treatment support order under the Act, or
- if the person voluntarily agrees to be transferred for treatment and care.
There are strict legislative requirements regarding transfer, assessment, treatment, monitoring and notifications regarding classified patients.
Policy: Classified patients
Flowchart 1: Classified patients - Transport for Assessment (UNDER REVIEW)
Flowchart 2: Classified patients - Transport for Treatment and Care (UNDER REVIEW)
Fact Sheet: Classified patient provisions
The Act supports victims of crime when the person charged with an offence has been assessed as having a mental illness or intellectual disability. These provisions include entitlements for victims to receive specific information about the patient that is relevant to their safety and wellbeing.
See the Victim support page for more information.