2020
2020
2023-07-03
act
government
publicgeneral
act.reprint
act-2022-041
allinforce
2020-06-03
2020-06-03
0
act-2020-012
2dd98951-8cd7-4fee-9328-f14b0ec86ebb
1b81fbd3-904a-4c36-9fc8-1ad24d2e3811
2020
none
Does not include amendments
by—
Statute Law (Miscellaneous
Provisions) Act 2023 No 7 (not commenced — to
commence on 14.7.2023)
An Act with respect to criminal proceedings
involving persons with a mental health impairment or cognitive impairment and
the care, treatment and control of those persons; and for other
purposes.
Part 1Preliminary
1Name of Act
This Act is the Mental Health
and Cognitive Impairment Forensic Provisions Act
2020.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
(1)
In this Act—
cognitive
impairment—see section 5.
Commissioner of Victims
Rights means the Commissioner of Victims Rights established
under the Victims Rights and Support Act
2013.
correctional centre
has the same meaning as in the Crimes (Administration of
Sentences) Act 1999.
correctional
patient—see section 73.
defence
of mental health impairment or cognitive impairment means
the defence established under section 28(1).
defendant includes an accused
person and a person about whom a finding has been made at a special
hearing.
detention centre has
the same meaning as in the Children (Detention
Centres) Act 1987.
extension order means an
order for the extension of a person’s status as a forensic patient under
section 121.
Forensic Division of
the Tribunal means the Forensic Division of the Tribunal established under
Division 1 of Part 7.
forensic
patient—see section 72.
high risk offender
detention order means a continuing detention order or an
interim detention order under the Crimes (High Risk
Offenders) Act 2006 or the Terrorism
(High Risk Offenders) Act 2017.
inmate has the same meaning as
in the Crimes (Administration of Sentences)
Act 1999.
inquiry means an inquiry
conducted under Division 2 of Part 4 in order to determine whether a person is
unfit to be tried for an offence.
interim extension
order means an order for the interim extension of a
person’s status as a forensic patient under section 130.
limiting term means a term
nominated for a person under Division 3 of Part 4.
Magistrate means a
Magistrate or a Children’s Magistrate.
mental health
impairment—see section 4.
registered victim
means a victim registered on the Victims Register.
Secretary means the Secretary
of the Ministry of Health.
special
hearing—see section 54.
special
verdict of act proven but not criminally responsible means a
special verdict of act proven but not criminally responsible entered at a
trial or following a special hearing if the defence of mental health
impairment or cognitive impairment is established.
Tribunal means the Mental
Health Review Tribunal constituted under the Mental Health
Act 2007.
victim of a forensic patient
means a primary victim, or a family victim, of an act of violence (within the
meaning of the Victims Rights and Support Act
2013) committed by the forensic patient.
Victims Register means
the Register established under Part 8.
Note—
The Interpretation Act
1987 contains definitions and other provisions that affect
the interpretation and application of this Act.
(2)
Words and expressions used in this Act have the
same meanings as in the Mental Health Act
2007.
(3)
For the purposes of the application of this Act
to a person detained in, or transferred to or from, a detention
centre—
(a)
a reference to the Commissioner of Corrective
Services is taken to be a reference to the Secretary of the Department of
Communities and Justice, and
(b)
a reference to a sentence of imprisonment is
taken to include a reference to a term of detention under a detention order
within the meaning of the Children (Detention Centres) Act
1987.
(4)
Notes included in this Act do not form part of
this Act.
4Mental health impairment
(1)
For the purposes of this Act, a person has a mental
health impairment if—
(a)
the person has a temporary or ongoing disturbance
of thought, mood, volition, perception or memory, and
(b)
the disturbance would be regarded as significant
for clinical diagnostic purposes, and
(c)
the disturbance impairs the emotional wellbeing,
judgment or behaviour of the person.
(2)
A mental health impairment may arise from any of
the following disorders but may also arise for other reasons—
(a)
an anxiety disorder,
(b)
an affective disorder, including clinical
depression and bipolar disorder,
(c)
a psychotic disorder,
(d)
a substance induced mental disorder that is not
temporary.
(3)
A person does not have a mental health impairment
for the purposes of this Act if the person’s impairment is caused solely
by—
(a)
the temporary effect of ingesting a substance,
or
(b)
a substance use
disorder.
5Cognitive impairment
(1)
For the purposes of this Act, a person has a cognitive
impairment if—
(a)
the person has an ongoing impairment in adaptive
functioning, and
(b)
the person has an ongoing impairment in
comprehension, reason, judgment, learning or memory, and
(c)
the impairments result from damage to or
dysfunction, developmental delay or deterioration of the person’s brain
or mind that may arise from a condition set out in subsection (2) or for other
reasons.
(2)
A cognitive impairment may arise from any of the
following conditions but may also arise for other reasons—
(a)
intellectual disability,
(b)
borderline intellectual
functioning,
(c)
dementia,
(d)
an acquired brain injury,
(e)
drug or alcohol related brain damage, including
foetal alcohol spectrum disorder,
(f)
autism spectrum
disorder.
6References to juries and matters determined by a judge
alone
In this Act (other than sections 29, 41, 56 and
58), a reference to a matter or question that is or is to be determined by a
jury, or to another function of a jury, includes a reference to a judge in
proceedings determined by a judge alone.
Part 2Summary proceedings
Division 1Preliminary
7Interpretation
(1)
In this Part—
authorised justice
has the same meaning as in the Bail Act
2013.
authorised officer
has the same meaning as in the Criminal Procedure Act
1986.
juvenile justice
officer has the same meaning as in the Children (Detention Centres) Act
1987.
treatment or support
plan means a plan outlining programs, services or treatments
or other support that may be required by a defendant to address the
defendant’s apparent mental health impairment or cognitive
impairment.
(2)
A reference to an order in a Division of this
Part is a reference to an order made under that
Division.
8Application of Part
(1)
This Part applies to the following criminal
proceedings before a Magistrate—
(a)
summary proceedings for
offences,
(b)
indictable offences triable
summarily,
(c)
any related proceedings under the Bail Act
2013.
(2)
This Part does not apply to committal
proceedings.
9Magistrate may make order at any time
(1)
A Magistrate may make an order specified under
this Part at the commencement of or at any other time during the course of
proceedings before the Magistrate, whether or not the defendant has entered a
plea.
(2)
s 9: Am 2021 No 4,
Sch 2[1].
10Means by which Magistrate may be
informed
For the purposes of this Part, a Magistrate may
inform himself or herself as the Magistrate thinks fit, but not so as to
require a defendant to incriminate himself or herself.
11Magistrate to state reasons for
decisions
(1)
A Magistrate is to state the reasons for making a
decision as to whether or not a defendant should be dealt with by an order
under this Part.
(2)
A failure to comply with this section does not
invalidate a decision of a Magistrate under this Part.
Division 2Defendants
with mental health impairments or cognitive impairments
12Defendants with mental health impairments or cognitive
impairments
(1)
A Magistrate may make an order under this
Division or adjourn proceedings if it appears to the Magistrate that the
defendant has (or had at the time of the alleged commission of the offence to
which the proceedings relate) a mental health impairment or a cognitive
impairment, or both.
(2)
The Magistrate may take action under this
Division only if it appears to the Magistrate, on an outline of the facts
alleged in the proceedings or other evidence the Magistrate considers
relevant, it would be more appropriate to deal with the defendant in
accordance with this Division than otherwise in accordance with
law.
(3)
This Division does not apply if the defendant is
a mentally ill person or a mentally disordered person.
13Adjournment of proceedings
A Magistrate may, for the purposes of this
Division—
(a)
adjourn proceedings to enable—
(i)
the defendant’s apparent mental health
impairment or cognitive impairment to be assessed or diagnosed,
or
(ii)
the development of a treatment or support plan
for the defendant for the purposes of an order, or
(iii)
a responsible person to be identified for the
purposes of an order, or
(iv)
for any other reason the Magistrate considers
appropriate in the circumstances, or
(b)
make other interim orders that the Magistrate
considers appropriate.
14Orders Magistrate may make
(1)
A Magistrate may make an order to dismiss a
charge and discharge the defendant—
(a)
into the care of a responsible person,
unconditionally or subject to conditions, or
(b)
on the condition that the defendant attend on a
person or at a place specified by the Magistrate for assessment, treatment or
the provision of support for the defendant’s mental health impairment or
cognitive impairment, or
(c)
unconditionally.
(2)
An order to dismiss a charge against a defendant
does not constitute a finding that the charge against the defendant is proven
or otherwise.
15Considerations of Magistrate when making
order
In deciding whether it would be more appropriate
to deal with a defendant in accordance with this Division, the Magistrate may
consider the following—
(a)
the nature of the defendant’s apparent
mental health impairment or cognitive impairment,
(b)
the nature, seriousness and circumstances of the
alleged offence,
(c)
the suitability of the sentencing options
available if the defendant is found guilty of the offence,
(d)
relevant changes in the circumstances of the
defendant since the alleged commission of the offence,
(e)
the defendant’s criminal
history,
(f)
whether the defendant has previously been the
subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act
1990,
(g)
whether a treatment or support plan has been
prepared in relation to the defendant and the content of that
plan,
(h)
whether the defendant is likely to endanger the
safety of the defendant, a victim of the defendant or any other member of the
public,
(i)
other relevant
factors.
16Failure of defendant to comply with condition of
order
(1)
If a Magistrate suspects that a defendant has
failed to comply with a condition of an order under section 14, the Magistrate
may, within 12 months of the order being made, order the defendant to appear
before the Magistrate.
(2)
If the defendant fails to appear, the Magistrate
may—
(a)
issue a warrant for the defendant’s arrest,
or
(b)
authorise an authorised officer to issue a
warrant for the defendant’s arrest.
(3)
If at the time the Magistrate proposes to make an
order under subsection (1) the Magistrate is satisfied that the location of
the defendant is unknown, the Magistrate may immediately—
(a)
issue a warrant for the defendant’s arrest,
or
(b)
authorise an authorised officer to issue a
warrant for the defendant’s arrest.
(4)
If a Magistrate discharges a defendant subject to
a condition under an order, and the defendant fails to comply with the
condition within 12 months of the discharge, the Magistrate may deal with the
charge as if the defendant had not been discharged.
17Reports from treatment providers
(1)
Despite any law, a person who is, in accordance
with an order under section 14, to assess another person’s mental
condition or provide treatment to another person (a treatment provider)
may report a failure to comply with a condition of the order by the other
person to any of the following—
(a)
an officer of the Department of Communities and
Justice,
(b)
another person or body prescribed by the
regulations.
(2)
A treatment provider may include in the report
information that the treatment provider considers is relevant to the making of
a decision in relation to the failure to comply with the
condition.
(3)
The report is to be in the form approved for the
time being by the Secretary of the Department of Communities and
Justice.
Division 3Mentally
ill or mentally disordered persons
18Mentally ill or mentally disordered
persons
(1)
A Magistrate may make an order under this
Division if it appears to the Magistrate that the defendant is a mentally ill
person or a mentally disordered person.
(2)
A Magistrate may make an order under this
Division without affecting any other order the Magistrate may make in relation
to the defendant, whether by way of adjournment, the granting of bail in
accordance with the Bail Act 2013 or
otherwise.
Note—
Certain orders by a Magistrate or authorised
justice under this Division in relation to an offence are taken to be a
decision to dispense with bail for the offence (see section
24).
19Orders Magistrate may make
A Magistrate may make one or more of the
following orders—
(a)
an order that the defendant be taken to, and
detained in, a mental health facility for assessment,
(b)
an order that the defendant be taken to, and
detained in, a mental health facility for assessment and that, if the
defendant is found on assessment at the mental health facility not to be a
mentally ill person or mentally disordered person, the defendant be brought
back before a Magistrate or an authorised justice as soon as practicable
unless granted bail by a police officer at that facility,
(c)
an order for the discharge of the defendant,
unconditionally or subject to conditions, into the care of a responsible
person.
20Community treatment orders
(1)
Without limiting section 19(c), the Magistrate
may make a community treatment order in accordance with the Mental Health Act 2007 for
implementation by a declared mental health facility in relation to the
defendant, if the Magistrate is satisfied that all of the requirements for the
making of a community treatment order at a mental health inquiry under that
Act (other than the holding of an inquiry) have been met in respect of the
defendant.
(2)
The Mental Health Act
2007 (other than section 51(1) and (2)) applies to and in
respect of the defendant and a community treatment order as if the order had
been made by the Tribunal under that Act.
21Proceedings before authorised justice
(1)
If, at the commencement of or at any time during
the course of the hearing of proceedings under the Bail Act 2013 before an authorised
justice, it appears to the authorised justice that the defendant is a mentally
ill person or a mentally disordered person, the authorised justice may
(without affecting any other order under the Bail Act
2013 that the officer may make in relation to the
defendant)—
(a)
order that the defendant be taken to, and
detained in, a mental health facility for assessment, or
(b)
order that the defendant be taken to, and
detained in, a mental health facility for assessment and that, if the
defendant is found on assessment at the mental health facility not to be a
mentally ill person or mentally disordered person, the defendant be brought
back before a Magistrate or an authorised justice as soon as practicable
unless granted bail by a police officer at that
facility.
(2)
An authorised justice is to state the reasons for
making a decision as to whether or not a defendant should be dealt with by an
order under subsection (1).
(3)
A failure to comply with subsection (2) does not
invalidate a decision of an authorised justice under this
section.
22Orders may relate to transfer of defendants by certain
persons
(1)
An order by a Magistrate or authorised justice
may provide that a defendant—
(a)
in the case of a defendant who is under the age
of 18 years, be taken to or from a place by a juvenile justice officer,
or
(b)
in the case of any defendant, be taken to or from
a place by a person of a kind prescribed by the regulations for the purposes
of this section.
(2)
A function conferred on a juvenile justice
officer under an order is taken to be a function under the Children (Detention Centres) Act 1987
and the juvenile justice officer has the same functions in respect of the
defendant as the officer has in respect of a detainee under that Act and the
regulations under that Act.
(3)
If a correctional officer has power under an
order to take a defendant to or from a place, that power is taken to be a
function under the Crimes (Administration of Sentences)
Act 1999 and the correctional officer has the same
functions in respect of the defendant as the officer has in respect of an
inmate under that Act and the regulations under that
Act.
(4)
In this section—
correctional
officer has the same meaning as in the Crimes (Administration of Sentences) Act
1999.
23Dismissal of charges
(1)
If a defendant is dealt with by a Magistrate or
authorised justice in accordance with this Division, the charge which gave
rise to the proceedings, on the expiration of the period of 6 months after the
date on which the defendant is so dealt with, is taken to have been dismissed
unless, within that period, the defendant is brought before a Magistrate to be
further dealt with in relation to the charge.
(2)
If a defendant is brought before a Magistrate to
be further dealt with in relation to a charge, the Magistrate must, in dealing
with the charge, take account of any period during which the defendant was
detained in a mental health facility as a consequence of an
order.
(3)
The fact that charges are taken to have been
dismissed under subsection (1) does not constitute a finding that the charges
against the defendant are proven or otherwise.
24Bail
(1)
An order by a Magistrate or authorised justice
under section 19(a) or (b) or 21(1)(a) or (b) in relation to an offence is,
for the purposes of the Bail Act 2013,
taken to be a decision to dispense with bail for the
offence.
(2)
An order under section 19(b) or 21(1)(b) that a
defendant be brought back before a Magistrate or authorised justice may be
satisfied by taking the defendant to an appropriate police officer for the
making of a bail decision in respect of the defendant.
(3)
An appropriate police officer may make a bail
decision in respect of a defendant brought before the appropriate police
officer under this section (despite section 43(3) of the Bail Act 2013).
(4)
In this section—
appropriate police
officer means a police officer who may make a bail decision
under the Bail Act 2013 in
respect of a person accused of an offence who is present at a police
station.
Division 4General
25Transfer from correctional centre or detention
centre
(1)
This section applies to a person who is awaiting
committal for trial or trial for an offence or summary disposal of the
person’s case.
(2)
If it appears to a Magistrate that it may be
appropriate to transfer a person to whom this section applies from a
correctional centre or detention centre to a mental health facility under
section 86, the Magistrate may make an order directing—
(a)
that the defendant be examined by 2 medical
practitioners, 1 of whom is a psychiatrist, and
(b)
that, if appropriate, the relevant certificates
be given to the Secretary under section 86, and
(c)
that the Chief Executive, Justice Health or, in
the case of a person who is under the age of 18 years, the Secretary of the
Department of Communities and Justice to ensure that the Magistrate is
notified of the action, if any, taken under section
86.
26Regulations
The regulations may prescribe the form of an
order under this Part.
Part 3Defence of mental health impairment or cognitive
impairment
27Application of Part
This Part applies to criminal proceedings in the
Supreme Court (including criminal proceedings within the summary jurisdiction
of the Supreme Court) and the District Court.
28Defence of mental health impairment or cognitive
impairment
(1)
A person is not criminally responsible for an
offence if, at the time of carrying out the act constituting the offence, the
person had a mental health impairment or a cognitive impairment, or both, that
had the effect that the person—
(a)
did not know the nature and quality of the act,
or
(b)
did not know that the act was wrong (that is, the
person could not reason with a moderate degree of sense and composure about
whether the act, as perceived by reasonable people, was
wrong).
(2)
The question of whether a defendant had a mental
health impairment or a cognitive impairment, or both, that had that effect is
a question of fact and is to be determined by the jury on the balance of
probabilities.
(3)
Until the contrary is proved, it is presumed that
a defendant did not have a mental health impairment or cognitive impairment,
or both, that had that effect.
(4)
In this Part, act includes—
(a)
an omission, and
(b)
a series of acts or
omissions.
29Explanation to jury
The judge must explain the following matters to
the jury if the question of whether the defendant had a mental health
impairment or a cognitive impairment, or both, as referred to in section 28(1)
is raised—
(a)
the findings which may be made on the
trial,
(b)
the legal and practical consequences of those
findings,
(c)
the composition of the Tribunal and its relevant
functions with respect to forensic patients,
(d)
without limiting paragraph (b), that a defendant
who is found to have committed the act constituting the offence but not to be
criminally responsible because of a mental health impairment or cognitive
impairment, or both, may be ordered to be released by the Tribunal only if the
Tribunal is satisfied, on the evidence available to it, that the safety of the
defendant or any member of the public will not be seriously endangered by the
defendant’s release,
(e)
that the jury should not be influenced by the
consequences of a special verdict of act proven but not criminally responsible
in deciding a verdict.
30Effect of finding of act proven but not criminally
responsible because of mental health impairment or cognitive
impairment
A jury must return a special verdict of act
proven but not criminally responsible if the jury is satisfied that the
defence of mental health impairment or cognitive impairment has been
established.
31Special verdict where defendant and prosecutor agree on
impairment
The court may enter a special verdict of act
proven but not criminally responsible at any time in the proceedings
(including before the jury is empanelled) if—
(a)
the defendant and the prosecutor agree that the
proposed evidence in the proceedings establishes a defence of mental health
impairment or cognitive impairment, and
(b)
the defendant is represented by an Australian
legal practitioner, and
(c)
the court, after considering that evidence, is
satisfied that the defence is so established.
32Special verdict not available for alternative
offence
The fact that a court enters a special verdict of
act proven but not criminally responsible in respect of an offence does not
result in a requirement for the court to also enter a special verdict in
respect of an offence available as an alternative to the
offence.
33Effect of special verdict
(1)
On the return of a special verdict of act proven
but not criminally responsible, the court may make one or more of the
following orders—
(a)
an order that the defendant be remanded in
custody until a further order is made under this section,
(b)
an order that the defendant be detained in the
place and manner that the court thinks fit until released by due process of
law,
(c)
an order for the unconditional or conditional
release of the defendant from custody,
(d)
other orders that the court thinks
appropriate.
(2)
Before making an order for the release of a
defendant, the court may request a report by a forensic psychiatrist or other
person of a class prescribed by the regulations, who is not currently involved
in treating the defendant, as to the condition of the defendant and whether
the release of the defendant is likely to seriously endanger the safety of the
defendant or any member of the public.
(3)
The court must not make an order for the release
of a defendant unless it is satisfied, on the balance of probabilities, that
the safety of the defendant or any member of the public will not be seriously
endangered by the defendant’s release.
Note—
A person for whom a special verdict of act proven
but not criminally responsible is entered is a forensic patient unless
unconditionally released and is to be dealt with under Part
5.
34Referral of defendant to Tribunal
The court must refer the defendant to the
Tribunal if a special verdict of act proven but not criminally responsible is
returned or entered and an order is not made for the unconditional release of
the defendant.
Part 4Fitness to stand trial
Division 1Preliminary
35Application of Part
This Part applies to criminal proceedings in the
Supreme Court (including criminal proceedings within the summary jurisdiction
of the Supreme Court) and the District Court.
36Fitness test
(1)
For the purposes of proceedings to which this
Part applies, a person is taken to be unfit to be tried for an offence if the
person, because the person has a mental health impairment or cognitive
impairment, or both, or for another reason, cannot do one or more of the
following—
(a)
understand the offence the subject of the
proceedings,
(b)
plead to the charge,
(c)
exercise the right to challenge
jurors,
(d)
understand generally the nature of the
proceedings as an inquiry into whether the person committed the offence with
which the person is charged,
(e)
follow the course of the proceedings so as to
understand what is going on in a general sense,
(f)
understand the substantial effect of any evidence
given against the person,
(g)
make a defence or answer to the
charge,
(h)
instruct the person’s legal representative
so as to mount a defence and provide the person’s version of the facts
to that legal representative and to the court if
necessary,
(i)
decide what defence the person will rely on and
make that decision known to the person’s legal representative and the
court.
(2)
This section does not limit the grounds on which
a court may consider a person to be unfit to be tried for an
offence.
37When question of unfitness may be
raised
(1)
The question of a defendant’s unfitness to
be tried for an offence is, so far as practicable, to be raised before the
defendant is arraigned on a charge in respect of the offence but may be raised
at any time during the course of the hearing of the proceedings in respect of
the offence.
(2)
The question of a defendant’s unfitness to
be tried for an offence may be raised on more than one occasion in the same
proceedings.
38Question of unfitness to be determined on balance of
probabilities
The question of a defendant’s unfitness to
be tried for an offence is to be determined on the balance of
probabilities.
39Court and other persons may raise question of
unfitness
The court, the defendant or the prosecutor may
raise the question of a defendant’s unfitness to be tried for an
offence.
Division 2Procedure
when question of unfitness to be tried raised
40Procedure where question of unfitness raised before
arraignment
(1)
If the question of a defendant’s unfitness
to be tried is raised before the defendant is arraigned on a charge in respect
of the offence, the court must determine whether an inquiry should be
conducted before the hearing of the proceedings in respect of the
offence.
(2)
The court may, at any time before an inquiry is
commenced, determine that there is no longer a need for the inquiry to be
held.
41Procedure where question of unfitness raised after
arraignment
If the question of a defendant’s unfitness
to be tried is raised after the person is arraigned on a charge in respect of
the offence, the court must hear any submissions relating to holding an
inquiry in the absence of a jury which has been constituted for the purposes
of the proceedings relating to the offence.
42When an inquiry is required or may not be
held
(1)
The court must conduct an inquiry to determine
whether a defendant is unfit to be tried for an offence if—
(a)
the court determines that an inquiry should be
conducted before the defendant is arraigned on a charge in respect of the
offence and does not subsequently determine that the inquiry is not needed,
or
(b)
the question of the defendant’s unfitness
to be tried is raised after the defendant is arraigned on a charge in respect
of the offence.
(2)
The inquiry is to be held as soon as practicable
after the court makes the determination or the question is raised after
arraignment.
(3)
Despite subsection (1), the court is not required
to hold an inquiry unless it appears to the court that the question of the
defendant’s unfitness to be tried for the offence has been raised in
good faith.
(4)
Despite subsection (1), the court may determine
not to hold an inquiry, dismiss the charge and order that the defendant be
released if it is of the opinion, having regard to any of the following, that
it is inappropriate to inflict any punishment—
(a)
the trivial nature of the charge or
offence,
(b)
the nature of the defendant’s mental health
impairment or cognitive impairment,
(c)
any other matter the court thinks proper to
consider.
43Actions pending inquiry
The court may do one or more of the following
before holding an inquiry—
(a)
adjourn the proceedings,
(b)
grant the defendant bail in accordance with the
Bail Act 2013,
(c)
order the defendant to be remanded in custody for
a period not exceeding 28 days,
(d)
order the defendant to undergo a psychiatric
examination or other examination,
(e)
order that a psychiatric report or other report
relating to the defendant be obtained,
(f)
discharge a jury constituted for the purpose of
the proceedings,
(g)
make other orders the court thinks
appropriate.
44Inquiry procedures
(1)
The question of a defendant’s unfitness to
be tried for an offence is to be determined by the judge
alone.
(2)
At an inquiry, the defendant is to be represented
by an Australian legal practitioner, unless the court otherwise
allows.
(3)
An inquiry is not to be conducted in an
adversarial manner.
(4)
The onus of proof of the question of a
defendant’s unfitness to be tried for an offence does not rest on any
particular party to the proceedings.
(5)
In addition to any other matter the court may
consider in determining whether the defendant is unfit to be tried for an
offence, the court is to consider the following—
(a)
whether the trial process can be modified, or
assistance provided, to facilitate the defendant’s understanding and
effective participation in the trial,
(b)
the likely length and complexity of the
trial,
(c)
whether the defendant is represented by an
Australian legal practitioner, or can obtain representation by an Australian
legal practitioner.
Note—
The test for determining whether or not a person
is unfit to be tried for an offence is set out in section
36.
(6)
A determination by the judge must include the
principles of law applied by the judge and the findings of fact on which the
judge relied.
45Presumptions as to findings about
unfitness
It is presumed—
(a)
that a person who has, in accordance with this
Part or on a review under Part 5, been found to be unfit to be tried for an
offence continues to be unfit to be tried for the offence until the contrary
is, on the balance of probabilities, determined to be the case,
and
(b)
that a person who has, in accordance with this
Part or on a review under Part 5, been found fit to be tried for an offence
continues to be fit to be tried for the offence until the contrary is, on the
balance of probabilities, determined to be the
case.
46Finding after inquiry that defendant is fit to be
tried
If a defendant is found fit to be tried following
an inquiry, the proceedings brought against the person in respect of the
offence are to recommence or to continue in accordance with the appropriate
criminal procedures.
47Finding after inquiry that defendant is unfit to be
tried
(1)
If a defendant is found unfit to be tried for an
offence following an inquiry, the court must also determine whether, on the
balance of probabilities, during the period of 12 months after the finding of
unfitness, the defendant—
(a)
may become fit to be tried for the offence,
or
(b)
will not become fit to be tried for the
offence.
(2)
The court may do one or more of the following
after a finding that a defendant is unfit to be tried for an
offence—
(a)
make an order discharging a jury constituted for
the purpose of the proceedings,
(b)
adjourn the proceedings,
(c)
grant the defendant bail in accordance with the
Bail Act 2013,
(d)
make an order remanding the defendant in
custody,
(e)
make other orders that the court thinks
appropriate.
48Finding after inquiry that defendant will not become fit to
be tried within 12 months
(1)
If the court determines that a defendant will
not, during the period of 12 months after a finding by a court that the person
is unfit to be tried for an offence, become fit to be tried for the offence,
the defendant is to be dealt with under Division 3.
(2)
This section does not apply if the court is
required to order the release of the defendant because of advice under section
53 that further proceedings will not be taken against the defendant in respect
of the offence.
49Tribunal review and court orders after finding that
defendant may be fit to be tried within 12 months
(1)
The court must refer the defendant to the
Tribunal for review if the court determines that the defendant is unfit to be
tried for an offence and may become fit to be tried for the offence during the
period of 12 months after the finding.
(2)
The court may grant the defendant bail in
accordance with the Bail Act 2013 for
a period not exceeding 12 months on being notified of a determination by the
Tribunal under section 80 that the defendant has become fit to be tried for
the offence.
(3)
As soon as practicable after an order is made or
bail is granted under this section, the registrar of the court is to notify
the Tribunal of the terms of the order or the grant of
bail.
50Finding by Tribunal that defendant is fit to be
tried
(1)
If the court is notified by the Tribunal
following a review that a defendant has become fit to be tried for an offence,
the proceedings brought against the defendant in respect of the offence are to
recommence or to continue in accordance with the appropriate criminal
procedures.
(2)
A court is not to hold a further inquiry into the
fitness of a defendant to be tried for an offence merely because the Tribunal
notifies the court that the defendant has become fit to be tried for an
offence.
(3)
Subsection (1) does not apply if the court is
required to order the release of the defendant because of advice under section
53 that further proceedings will not be taken against the defendant in respect
of the offence.
51Finding by Tribunal that defendant will not become fit to be
tried within 12 months
(1)
If the court is notified by the Tribunal
following a review that a defendant has not and will not, during the period of
12 months after a finding by a court that the defendant is unfit to be tried
for an offence, become fit to be tried for the offence, the defendant is to be
dealt with under Division 3.
(2)
This section does not apply if the court is
required to order the release of the defendant because of advice under section
53 that further proceedings will not be taken against the defendant in respect
of the offence.
52Committal proceedings following finding of fit to be
tried
(1)
This section applies to a defendant who was
committed for trial for an offence under Division 7 of Part 2 of Chapter 3 of
the Criminal Procedure Act
1986.
(2)
The court may, on the application of the
defendant or on its own motion, make an order remitting the matter to a
Magistrate for the holding of a case conference under Division 5 of Part 2 of
Chapter 3 of the Criminal Procedure Act
1986, if the defendant has, following an inquiry, been
found fit to be tried for an offence.
(3)
The court must make the order on the application
of the defendant unless it is satisfied that it is not in the interests of
justice to do so or that the offence is not an offence in relation to which a
case conference is required to be held under that
Division.
(4)
The court may, on its own motion, make an order
remitting the matter to a Magistrate for the holding of a case conference
under Division 5 of Part 2 of Chapter 3 of the Criminal
Procedure Act 1986 at any time, if it is satisfied that
the question of the defendant’s unfitness to be tried for an offence is
not going to be raised in proceedings for the offence.
(5)
If a matter is remitted to a Magistrate, the
matter is to be dealt with as if the defendant had not been committed for
trial and the proceedings are taken to be a continuation of the original
committal proceedings.
(6)
If no application is made or the matter is not
remitted to a Magistrate, the matter is to be dealt with in accordance with
section 50.
53Advice as to whether further proceedings are to be
taken
(1)
This section applies if—
(a)
the court determines that a defendant will not,
during the period of 12 months after a finding by a court that the person is
unfit to be tried for an offence, become fit to be tried for an offence,
or
(b)
the Tribunal determines that a defendant has not
become fit to be tried for an offence and will not become fit to be tried for
an offence during the period of 12 months after a finding by a court that the
person is unfit to be tried for an offence, or
(c)
the Tribunal determines that a defendant or a
forensic patient has become fit to be tried for an offence after a finding by
a court that the person is unfit to be tried for an offence or a special
hearing has been held for an offence.
(2)
The court must obtain advice from the Director of
Public Prosecutions as to whether or not further proceedings will be taken by
the Director in respect of the offence.
(3)
The court must order the release of the defendant
if the Director of Public Prosecutions advises that further proceedings will
not be taken by the Director in respect of the offence.
Note—
This does not prevent the admission of the
defendant as a voluntary or an involuntary patient under the Mental Health Act
2007.
(4)
The Director of Public Prosecutions must notify
the Minister for Police and Emergency Services and the Minister for Health and
Medical Research of a decision by the Director that no further proceedings
will be taken by the Director in respect of the
offences.
Division 3Special
hearings
54Nature of special hearings
In this Act, a special hearing is a hearing
for the purpose of ensuring, despite the unfitness of the defendant to be
tried in accordance with the normal procedures, that the defendant is
acquitted unless it can be proved to the required criminal standard of proof
that, on the limited evidence available, the defendant committed the offence
charged, or another offence available as an alternative to the offence
charged.
55When special hearings are held
(1)
A court must hold a special hearing as soon as
practicable after the court or the Tribunal determines that a defendant will
not, during the period of 12 months after a finding that the person is unfit
to be tried for an offence, become fit to be tried for the
offence.
(2)
This section does not apply if the court is
required to order the release of the defendant because of advice under section
53 that further proceedings will not be taken against the defendant in respect
of the offence.
Note—
This does not prevent the admission of the
defendant as a voluntary or an involuntary patient under the Mental Health Act
2007.
56Procedure for special hearings
(1)Trial procedure
A special hearing is to be conducted as nearly as
possible as if it were a trial of criminal proceedings.
(2)
The court may, if it thinks it appropriate in the
circumstances of the case, modify court processes to facilitate the effective
participation by the defendant in the special hearing.
(3)Representation
At a special hearing, the defendant must, unless
the court otherwise allows, be represented by an Australian legal
practitioner.
(4)
The fact that the defendant has been found unfit
to be tried for an offence is to be presumed not to be an impediment to the
person’s representation.
(5)Plea of not guilty
The defendant is taken to have pleaded not guilty
in respect of the offence charged.
(6)Defences
The defendant may raise any defence that could
properly be raised if the special hearing were an ordinary trial of criminal
proceedings.
(7)Evidence and participation by
defendant
The defendant is entitled to give
evidence.
(8)
The court may permit the defendant not to appear,
or exclude the defendant from appearing, at a special hearing if the court
thinks it appropriate in the circumstances and the defendant or the
defendant’s Australian legal practitioner agrees.
(9)Judge to try proceedings, unless jury
election
The question of whether the defendant at a
special hearing has committed an offence charged or another offence available
as an alternative is to be determined by the judge alone unless an election to
have the matter determined by a jury is made by—
(a)
the defendant and the court is satisfied that the
defendant sought and received advice about the election from an Australian
legal practitioner and the defendant understood the advice,
or
(b)
an Australian legal practitioner representing the
defendant, or
(c)
the prosecutor.
(10)Right to challenge jurors
If a jury is to be constituted, the Australian
legal practitioner (if any) representing the defendant may exercise the
defendant’s rights to challenge the jurors or
jury.
(11)Explanation to jury
The court must explain the following matters to a
jury constituted for the purposes of a special hearing—
(a)
the fact that the defendant is unfit to be tried
in accordance with the normal procedures,
(b)
the meaning of unfitness to be
tried,
(c)
the purpose of the special
hearing,
(d)
the verdicts that are available to the
jury,
(e)
the legal and practical consequences of the
verdicts.
57Amendment of indictment
(1)
The Director of Public Prosecutions may, with the
leave of the court or the consent of an Australian legal practitioner
representing the defendant, amend an indictment to which a special hearing
relates.
(2)
The provisions of the Criminal Procedure Act 1986 apply to the
amendment of an indictment under this section in the same way as they apply to
the amendment of an indictment in ordinary criminal proceedings, subject to
any modifications that the court considers appropriate in the
circumstances.
58Juries at special hearings
(1)
An election to have a special hearing determined
by a jury must be made—
(a)
on a day before the day fixed for the special
hearing, if the election is made by the defendant, or
(b)
at least 7 days before the day fixed for the
special hearing, if the election is made by the
prosecutor.
(2)
The defendant, or an Australian legal
practitioner for the defendant, may subsequently elect to have the special
hearing determined by a judge instead of a jury.
(3)
The Jury Act
1977 applies to the constitution of a jury, and to a jury
constituted, for a special hearing in the same way as it applies to the
constitution of a jury, and to a jury constituted, for a trial of criminal
proceedings.
(4)
A member of a jury otherwise constituted for the
purpose of a proceeding related to the same defendant and the same offence is
not eligible to be a member of a jury constituted for the purposes of a
special hearing.
(5)
Rules of court may be made with respect to
elections to have a special hearing determined by a
jury.
59Verdicts at special hearings
(1)
The verdicts available at a special hearing
include the following—
(a)
not guilty of the offence
charged,
(b)
a special verdict of act proven but not
criminally responsible,
(c)
that on the limited evidence available, the
defendant committed the offence charged,
(d)
that on the limited evidence available, the
defendant committed an offence available as an alternative to the offence
charged.
(2)
A judge who determines a special hearing must
include in the determination the principles of law applied by the judge and
the findings of fact on which the judge relied.
(3)
A special verdict of act proven but not
criminally responsible may only be entered under this section if the judge is
satisfied that the requirements of section 28(1) and (2) are
met.
60Verdict of not guilty
A defendant who is found not guilty of an offence
at a special hearing is to be dealt with as if the defendant had been found
not guilty of the offence at an ordinary trial of criminal
proceedings.
61Special verdict of act proven but not criminally responsible
because of mental health impairment or cognitive
impairment
(1)
A special verdict of act proven but not
criminally responsible at a special hearing is taken for all purposes to be a
verdict reached at an ordinary trial of criminal
proceedings.
(2)
Without limiting subsection (1), the court may
make any order or take any action in respect of the defendant that a court
could make on reaching the same verdict under Part 3.
62Verdict of offence committed on limited evidence
available
A verdict at a special hearing that on the
limited evidence available the defendant committed the offence charged or an
offence available as an alternative to the offence charged—
(a)
constitutes a qualified finding of guilt and does
not constitute a basis in law for a conviction for the offence to which the
finding relates, and
(b)
is subject to appeal in the same manner as a
verdict in an ordinary trial of criminal proceedings, and
(c)
is taken to be a conviction for the purpose of
enabling a victim of the offence to make a claim for
compensation.
63Penalties after finding of guilt
(1)Application of section
This section applies if a court finds at a
special hearing that on the limited evidence available the defendant committed
the offence charged or an offence available as an alternative to the offence
charged.
(2)Limiting terms
If the court would have imposed a sentence of
imprisonment for the offence if the special hearing had been an ordinary trial
of criminal proceedings and the person had been fit to be tried for the
offence, the court must nominate a term (a limiting term) that is
the best estimate of the sentence that the court would have imposed on the
defendant in those circumstances.
(3)Other penalties and orders
If the court determines that it would not have
imposed a sentence of imprisonment, the court may impose any other penalty or
make any order it might have imposed or made if the defendant had been found
guilty of the offence in an ordinary trial of criminal
proceedings.
(4)
The penalty or order is to be subject to appeal
in the same manner as a penalty or order in an ordinary trial of criminal
proceedings.
(5)Factors for consideration in determining
penalty
Without limiting subsection (2) or (3), in
determining a limiting term or other penalty, the court—
(a)
must take into account that, because of the
defendant’s mental health impairment or cognitive impairment, or both,
the person may not be able to demonstrate mitigating factors for sentencing or
make a guilty plea for the purposes of obtaining a sentencing discount,
and
(b)
may apply a discount of a kind that represents
part or all of the sentencing discounts that are capable of applying to a
sentence because of those factors or a guilty plea, and
(c)
must take into account periods of the
defendant’s custody or detention before, during and after the special
hearing that related to the offence.
(6)Notice to Tribunal where no limiting term
imposed
If the court indicates that it would not have
imposed a sentence of imprisonment in respect of a defendant, the court must
notify the Tribunal that a limiting term is not to be nominated in respect of
the person.
64Commencement of limiting terms
(1)
A limiting term takes effect from when it is
nominated unless—
(a)
the court determines it is taken to have effect
from an earlier time, after taking into account periods of the
defendant’s custody or detention before, during and after the special
hearing that related to the offence, or
(b)
the court directs that the term commence at a
later time so as to be served consecutively with (or partly concurrently and
partly consecutively with) some other limiting term nominated for the person
or sentence of imprisonment imposed on the person.
(2)
Before making a direction that the term commence
at a later time, the court is to take into account the following—
(a)
a sentence of imprisonment imposed in an ordinary
trial of criminal proceedings may be subject to a non-parole period but a
limiting term is not,
(b)
in an ordinary trial of criminal proceedings,
consecutive sentences of imprisonment are to be imposed with regard to
non-parole periods.
65Referral to Tribunal after limiting term
imposed
(1)
The court must refer the defendant to the
Tribunal if it nominates a limiting term for the defendant and must notify the
Tribunal of orders it makes under this section.
(2)
The court may order that the defendant be
detained in a mental health facility, correctional centre, detention centre or
other place pending the review of the defendant by the
Tribunal.
66Reports about defendant
(1)
The court may, following a verdict being reached
at a special hearing and on its own motion, request a report by a forensic
psychiatrist or other person of a class prescribed by the regulations, who is
not currently involved in treating the defendant, as to the condition of the
defendant and whether the release of the defendant is likely to seriously
endanger the safety of the defendant or any member of the
public.
(2)
The court may consider the report, and any other
report of an expert that is tendered to the court for the purposes of this
section, before determining what orders to make about the
defendant.
67Referral of defendant to Tribunal following special
verdict
The court must refer the defendant to the
Tribunal if there is a special verdict of act proven but not criminally
responsible at a special hearing and an order is not made for the
unconditional release of the defendant.
68Effect of finding that offence was committed on other
proceedings for the offence
(1)
A verdict at a special hearing that on the
limited evidence available the defendant committed the offence charged or an
offence available as an alternative to the offence charged constitutes a bar
to any other criminal proceedings for the same offence or substantially the
same offence.
(2)
Despite subsection (1), criminal proceedings for
the same offence or substantially the same offence may be commenced against a
defendant if—
(a)
a limiting term has been nominated at the special
hearing for the defendant, and
(b)
the limiting term has not expired,
and
(c)
the defendant has not been released from custody
as an inmate or discharged from detention as a forensic
patient.
(3)
Despite subsection (1), criminal proceedings for
the same offence or substantially the same offence may be commenced against a
defendant if the defendant is subject to an extension order or interim
extension order.
(4)
A defendant who has been released from custody
under a conditional release order or leave order made by the Tribunal is not a
person who has been released from custody for the purposes of subsection
(2)(c).
(5)
A court must, in sentencing a defendant found
guilty in ordinary criminal proceedings of the same offence or substantially
the same offence, fully take into account periods of the defendant’s
custody or detention before, during and after the special hearing that related
to the offence.
Part 5Forensic patients and correctional
patients
Division 1General
principles and concepts
69Objects
(1)
The objects of this Part are as
follows—
(a)
to protect the safety of members of the
public,
(b)
to provide for the care, treatment and control of
persons subject to criminal proceedings who have a mental health impairment or
cognitive impairment,
(c)
to facilitate the care, treatment and control of
any of those persons in correctional centres or detention centres through
community treatment orders,
(d)
to facilitate the provision of hospital care or
care in the community through community treatment orders for any of those
persons who require involuntary treatment,
(e)
to give an opportunity for those persons to have
access to appropriate care,
(f)
to protect the safety of victims of forensic
patients and acknowledge the harm done to victims.
(2)
The objects of this Part extend to the provisions
of Part 6.
s 69: Am 2022 No 41,
Sch 7[1].
70Treatment, care and detention of
patients
(1)
The principles set out in section 68 of the
Mental Health Act 2007 apply to the
administration of this Act with respect to forensic patients and correctional
patients.
(2)
A forensic patient who is ordered to be detained
in a mental health facility should, so far as practicable, be detained in a
mental health facility or other facility that is appropriate to the
patient’s needs and appropriate having regard to the safety of the
patient and other persons.
71Application of provisions of Mental Health
Act 2007 to forensic patients and correctional
patients
The following provisions of the Mental Health Act 2007 apply with
respect to forensic patients and correctional patients—
(a)
section 70 for a medical examination of a person
for the purposes of this Part,
(b)
sections 71–72A relating to
carers,
(c)
section 73 if the patient is detained in a mental
health facility.
72Forensic patients
(1)
The following persons are forensic patients for
the purposes of this Act—
(a)
a person who is found unfit to be tried for an
offence and who is detained in a mental health facility, correctional centre,
detention centre or other place,
(b)
a person for whom a limiting term has been
nominated after a special hearing (including a person who is subsequently
subject to an extension order or an interim extension order) and who is
detained in a mental health facility, correctional centre, detention centre or
other place or who is released from custody subject to conditions under an
order made by the Tribunal,
(c)
a person who is the subject of a special verdict
of act proven but not criminally responsible and who is detained in a mental
health facility, correctional centre, detention centre or other place or who
is released from custody subject to conditions under an order made by a court
or the Tribunal,
(d)
a person who is a member of a class of persons
prescribed by the regulations for the purposes of this
section.
(2)
To avoid doubt, a person is not a forensic
patient if the person has been found unfit to be tried for an offence and has
been released on bail.
73Correctional patients
A person is a correctional patient for
the purposes of this Act if—
(a)
the person has been transferred from a
correctional centre or detention centre to a mental health facility
while—
(i)
serving a sentence of imprisonment,
or
(ii)
on remand, or
(iii)
subject to a high risk offender detention order,
and
(b)
the person is not a forensic patient and has not
ceased to be a correctional patient under section 104 or been classified as an
involuntary patient under this Part.
74Role of objects and principles
provisions
The provisions of sections 69 and 70 are intended
to give guidance in the administration of this Act and do not create, or
confer on any person, any right or entitlement enforceable at
law.
Division 2General
provisions relating to reviews by Tribunal
75Matters Tribunal must consider that apply to all
orders
On a review or other proceedings under this Act
relating to a person, the Tribunal must have regard to the following matters
when determining what order to make about the person—
(a)
whether the person has a mental health impairment
or cognitive impairment,
(b)
whether there are reasonable grounds for
believing that care, treatment or control of the person is necessary for the
person’s own protection from serious harm or the protection of others
from serious harm,
(c)
the continuing condition of the person, including
any likely deterioration in the person’s condition and the likely
effects of that deterioration.
76Unlawful absence from mental health facility or other
place
The Tribunal is not required to review the case
of a person during a period in which the person is unlawfully absent from a
mental health facility or other place in which the person has been detained
under this Act.
77Extension of mandatory review period
(1)
The period within which the following reviews
must be held may, on the motion of the Tribunal or on the application of the
forensic patient or correctional patient or a designated carer or the
principal care provider of the patient, be extended by the Tribunal to a
maximum of 12 months—
(a)
a mandatory review of a forensic patient under
section 78(d), (e), (f) or (g),
(b)
a mandatory review of a correctional patient
under section 91(b),
(c)
a review under section 100 of a person in custody
who is subject to a community treatment order.
(2)
The Tribunal may grant an application to extend
the review period if it is satisfied that—
(a)
there are reasonable grounds to grant the
application, or
(b)
an earlier review is not required
because—
(i)
there has been no change since the last review in
the patient’s condition and there is no apparent need for any change in
existing orders relating to the patient, or
(ii)
there has been no change since the last review in
the patient’s condition and an earlier review may be detrimental to the
condition of the patient.
(3)
This section does not apply to the first review
of a forensic patient or to a review of a forensic patient who is subject to
an extension order.
s 77: Am 2021 No 4,
Sch 2[2].
Division 3Reviews of
forensic patients by Tribunal
78Mandatory reviews of forensic patients
The Tribunal must carry out reviews of forensic
patients at the following times—
(a)
as soon as practicable after a limiting term is
nominated by a court for a forensic patient,
(b)
as soon as practicable after a court finds at an
inquiry that a defendant is unfit to be tried for an offence and may become
fit to be tried for an offence within 12 months and the proceedings are
adjourned,
(c)
in the case of a person for whom a court enters a
special verdict of act proven but not criminally responsible, as soon as
practicable after the court enters the verdict,
(d)
at intervals of 6 months during the period that a
person is a forensic patient,
(e)
if a forensic patient is detained in a
correctional centre or detention centre and is subject to a community
treatment order, no later than 3 months after the community treatment order is
made and at least once every 6 months during the term of the
order,
(f)
as soon as practicable after being requested to
carry out a review of a forensic patient by the Minister for Health and
Medical Research, the Attorney General and Minister for the Prevention of
Domestic Violence, the Minister for Counter Terrorism and Corrections or the
Secretary,
(g)
as soon as practicable after being requested to
carry out a review of a forensic patient by the medical superintendent of the
mental health facility in which the patient is
detained.
79Tribunal may review patient at any
time
The Tribunal may carry out a review of a forensic
patient at any time.
80Reviews of persons found unfit to be tried for an
offence
(1)
On a review of a person who has been found unfit
to be tried for an offence, the Tribunal must determine whether the person has
become fit to be tried for an offence.
(2)
The Tribunal must notify the court that made the
finding of unfitness, the Director of Public Prosecutions and the
person’s legal representative if, on a review, it is of the opinion that
the person reviewed—
(a)
has become fit to be tried for an offence,
or
(b)
has not become fit to be tried for an offence and
will not, during the period of 12 months after the finding of unfitness by the
court, become fit to be tried for the offence.
(3)
The Tribunal must make a determination as to the
fitness of a person to be tried for an offence on the balance of
probabilities.
Note—
The presumptions in section 45 apply to the
person.
81Orders that may be made on reviews
generally
On a review of a forensic patient under this Act,
the Tribunal may make an order as to—
(a)
the patient’s detention, care or treatment
in a mental health facility, correctional centre, detention centre or other
place, or
(b)
the patient’s release (either
unconditionally or subject to conditions).
82Orders for transfer of forensic
patients
On a review under this Part, the Tribunal may
make an order for the transfer of a forensic patient to a mental health
facility, correctional centre, detention centre or other
place.
83Orders for release of forensic
patients
(1)
An order for release of a forensic patient under
this Division may be made despite any other provision of this Act or any order
of a court under this Act.
(2)
Despite subsection (1), the Tribunal must not
order the release of a forensic patient if the patient is a person who has
been remanded in custody pending the person’s return to court but may
make a recommendation to the court as to the person’s
release.
(3)
Despite subsection (1), the Tribunal must not
make an order as to the unconditional release of a forensic patient who is
subject to an extension order or interim extension order but may make a
recommendation to the Supreme Court as to the variation or revocation of the
extension order.
84Matters that Tribunal must consider when determining whether
to release a forensic patient
(1)General matters for
consideration
The Tribunal must not make an order for the
release (including the conditional release) of a forensic patient unless it
has considered the following matters—
(a)
whether or not other care of a less restrictive
kind, that is consistent with safe and effective care, is appropriate and
reasonably available to the patient or that the patient does not require
care,
(b)
a report by a forensic psychiatrist or other
person of a class prescribed by the regulations, who is not currently involved
in treating the patient, as to the condition of the patient and whether the
safety of the patient or any member of the public will be seriously endangered
by the patient’s release,
(c)
in the case of the proposed release of a forensic
patient subject to a limiting term, whether or not the patient has spent
sufficient time in custody.
Note—
The Tribunal is also required to consider the
matters set out in section 75.
(2)Tribunal must be satisfied patient or public safety
not seriously endangered
The Tribunal must not make an order for the
release (including the conditional release) of a forensic patient unless it is
satisfied that the safety of the patient or any member of the public will not
be seriously endangered by the patient’s release.
85Conditions that may be imposed by Tribunal on release of
forensic patients
(1)
The Tribunal may impose conditions relating to
the following matters on orders for release made by it in relation to a
forensic patient—
(a)
the appointment of a case manager, psychiatrist
or other health care professional to assist in the care and treatment of the
patient,
(b)
the care, treatment and review of the patient by
persons referred to in paragraph (a), including home visits to the
patient,
(c)
medication,
(d)
accommodation and living
conditions,
(e)
enrolment and participation in educational,
training, rehabilitation, recreational, therapeutic or other
programs,
(f)
the use or non-use of alcohol and other
drugs,
(g)
drug testing and other medical
tests,
(h)
agreements as to conduct,
(i)
association or non-association with victims or
members of victims’ families,
(j)
prohibitions or restrictions on frequenting or
visiting places,
(k)
overseas or interstate
travel,
(l)
requirements for the purposes of monitoring
(including by electronic means) compliance with the conditions of
release.
(2)
This section does not limit the matters in
relation to which a condition may be imposed.
Division 4Transfer of
correctional patients, forensic patients and other persons in
custody
86Transfer from correctional centre or detention centre by
Secretary
(1)
The Secretary may, by order in writing, direct
that a person imprisoned in, or a forensic patient detained in, a correctional
centre or detention centre be transferred to a mental health
facility.
(2)
The Secretary may make a transfer order on the
basis of 2 certificates about the person’s condition issued by 2 medical
practitioners, 1 of whom is a psychiatrist.
(3)
The certificates are to be in the form set out in
Schedule 1.
(4)
A transfer order may be made without the
person’s consent if it appears to the Secretary, on the basis of the
certificates, that the person is a mentally ill person.
(5)
A transfer order may be made with the
person’s consent if it appears to the Secretary, on the basis of the
certificates, that the person has a mental health impairment or other
condition for which treatment is available in a mental health
facility.
(6)
The Secretary may revoke a transfer
order.
(7)
The Secretary must notify the Tribunal in writing
if the Secretary makes or revokes a transfer order.
87Transfer back to correctional centre or detention
centre
(1)
This section applies to a person transferred from
a correctional centre or detention centre to a mental health facility under a
provision of this Division.
(2)
The person must be transferred back to the
correctional centre or detention centre within 7 days unless the Secretary is
of the opinion that—
(a)
the person is a mentally ill person or has a
mental health impairment or other condition for which treatment is available
in a mental health facility, and
(b)
other care of an appropriate kind would not be
reasonably available to the person in the correctional centre or detention
centre.
(3)
The person may be transferred back to the
correctional centre or detention centre at any time if the Secretary is of the
opinion that—
(a)
the person has ceased to be a mentally ill person
or to have a mental health impairment or other condition for which treatment
is available in a mental health facility, or
(b)
other care of an appropriate kind would be
reasonably available to the person in a correctional centre or detention
centre.
(4)
Nothing in this section affects the powers of the
Tribunal in respect of a person transferred to a mental health facility from a
correctional centre or detention centre.
88Requests for transfer to correctional centre or detention
centre
(1)
A correctional patient or forensic patient who is
detained in a mental health facility may, at any time, request the Tribunal to
make an order that the patient be transferred to a correctional centre or
detention centre.
(2)
The Tribunal, after considering the request, may
make the order requested by the patient or may refuse to make that
order.
(3)
The Tribunal must make the order if it is
satisfied that the person is not a mentally ill person.
89Reviews by Tribunal of persons awaiting transfer to mental
health facility
(1)
The Tribunal must conduct a limited review of the
case of a person who is subject to an order for transfer to a mental health
facility under this Division but who is not transferred within the period
prescribed by the regulations for the purposes of this
section.
(2)
The Tribunal must carry out a limited review each
month until the person is transferred to a mental health facility or the
Tribunal or the Secretary revokes the order.
(3)
On a limited review, the Tribunal may make an
order as to the person’s detention, care or treatment in a mental health
facility or other place.
(4)
For the purposes of a limited review, a report as
to the person’s condition and the reason for the delay in transfer is to
be provided to the Tribunal by the Secretary and the Commissioner of
Corrective Services.
Note—
In the case of a person under the age of 18
years, the report is to be provided by the Secretary of the Department of
Communities and Justice (see section 3(3)).
90Reviews of patients transferred under this
Division
(1)
The Tribunal must carry out a review of a
correctional patient or forensic patient as soon as practicable after the
patient is transferred to a mental health facility under this
Division.
(2)
If a person is transferred under this Division
from a correctional centre to a mental health facility, the Tribunal may, at
any time, make an order that the person be transferred to a correctional
centre.
Division 5Reviews of
correctional patients
91Mandatory reviews of correctional
patients
The Tribunal must carry out reviews of
correctional patients at the following times—
(a)
as soon as practicable after a correctional
patient is transferred to a mental health facility under this
Act,
(b)
at intervals of 6 months during the period that a
person is a correctional patient,
(c)
as soon as practicable after being requested to
carry out a review of a correctional patient by the Minister for Health and
Medical Research, the Attorney General and Minister for the Prevention of
Domestic Violence, the Minister for Counter Terrorism and Corrections or the
Secretary,
(d)
as soon as practicable after being requested to
carry out a review of a correctional patient by the medical superintendent of
the mental health facility in which the patient is
detained.
92Periodic and other reviews of correctional
patients
(1)
On the first review of a correctional patient
after the patient is transferred to a mental health facility, the Tribunal is
to determine whether the patient is a mentally ill person who should continue
to be detained in a mental health facility or has a condition for which
treatment is available in a mental health facility.
(2)
On any review of a correctional patient, the
Tribunal may make an order as to the patient’s continued detention, care
or treatment in, or transfer to, a mental health facility, correctional
centre, detention centre or other place.
93Tribunal may review patient at any
time
The Tribunal may carry out a review of a
correctional patient at any time.
Division 6Leave of
absence
94Tribunal may grant leave for forensic
patients
(1)
The Tribunal may make an order allowing a
forensic patient to be absent from a mental health facility, correctional
centre, detention centre or other place for a period and subject to any terms
and conditions that the Tribunal thinks fit.
(2)
An order may be made on the application of the
patient or on the motion of the Tribunal.
(3)
The Tribunal must not make an order allowing a
forensic patient to be absent from a mental health facility, correctional
centre, detention centre or other place unless it is satisfied, on the
evidence available to it, that the safety of the patient, a registered victim
of the patient or any other member of the public will not be seriously
endangered if the leave of absence is granted.
(4)
The Tribunal may impose any condition on an order
granting leave of absence that it may impose on an order releasing a forensic
patient.
(5)
This section does not prevent leave of absence
being granted to a forensic patient detained in a correctional centre or
detention centre under any other Act or law.
(6)
This section has effect despite the Crimes (Administration of Sentences) Act
1999.
95Commissioner of Corrective Services may grant leave for
correctional patients
(1)
The Commissioner of Corrective Services may allow
a correctional patient to be absent from a mental health facility for the
period and subject to any terms and conditions that the Commissioner of
Corrective Services thinks fit.
(2)
The Tribunal may, on a review of a correctional
patient, make recommendations to the Commissioner of Corrective Services as to
the granting of leave to the patient.
(3)
In determining whether to grant leave to a
correctional patient to be absent from a mental health facility, the
Commissioner of Corrective Services must have regard to recommendations made
by the Tribunal on a review of the patient as to the granting of
leave.
96Leave for forensic patients and correctional patients in
emergencies or special circumstances
(1)
The Secretary may allow a forensic patient or a
correctional patient to be absent from a mental health facility for the
period, and subject to any conditions that the Secretary thinks fit, in
circumstances constituting an emergency or in other special circumstances as
the Secretary thinks fit.
(2)
The Secretary must not allow a patient to be
absent from a mental health facility (otherwise than in a medical emergency)
under this section unless the Secretary is satisfied, on the evidence
available to the Secretary, that the safety of the patient or any member of
the public will not be seriously endangered if the leave of absence is
granted.
(3)
The Secretary must not allow a patient to be
absent from a mental health facility if, in the same or similar circumstances,
an order allowing the patient to be absent from a mental health facility has
been refused by—
(a)
for a forensic patient—the Tribunal,
or
(b)
for a correctional patient—the Commissioner
of Corrective Services.
(4)
This section has effect despite the Crimes (Administration of Sentences) Act
1999.
Note—
See section 117 for security conditions relating
to correctional patients who are absent on leave from mental health
facilities.
97Appeals against decisions of Secretary
(1)
A forensic patient or a correctional patient may
appeal to the Tribunal against a failure or refusal by the Secretary to grant
the patient leave of absence under this Part.
(2)
An appeal may be made orally or in writing and is
to be made in accordance with the regulations.
(3)
An oral appeal is to be recorded in accordance
with the regulations.
(4)
The Secretary must provide the Tribunal with a
report about the patient, including the Secretary’s reasons for refusing
or failing to grant leave of absence.
(5)
For the purpose of determining an appeal, the
Tribunal has and may exercise the functions of the Secretary with respect to
the granting of leave and may make an order accordingly.
(6)
In addition, the Tribunal may determine that no
further right of appeal may be exercised under this section before the date on
which the person is next reviewed by the Tribunal under this Act, if it thinks
it appropriate to do so.
98Grants of leave do not affect sentences or limiting
terms
The grant of leave of absence to a forensic
patient or a correctional patient under this Part does not affect the
operation of a limiting term or sentence of imprisonment imposed in respect of
the patient concerned.
Division 7Community
treatment orders
99Community treatment orders
(1)
On a review under this Part or at any other time,
the Tribunal may make a community treatment order in relation to—
(a)
a forensic patient, or
(b)
a correctional patient ordered to be transferred
to a correctional centre or detention centre, or
(c)
a person who is subject to an order for transfer
to a mental health facility from a correctional centre or detention centre but
who has not been transferred, or
(d)
an inmate in a correctional centre or a detention
centre.
(2)
Part 3 of Chapter 3 of the Mental Health Act 2007 applies to the
making of a community treatment order under this section, subject to any
modifications prescribed by the regulations under that Act or under this
Act.
(3)
Without limiting subsection (2), the regulations
may modify that Part for the purpose of consistency with the operation of the
Crimes (Administration of Sentences) Act
1999 and regulations under that Act with respect to
correctional patients, inmates of correctional centres or detention centres
and persons subject to parole.
(4)
A community treatment order made in respect of a
person detained in a correctional centre, detention centre or other place
continues in force if the person is released from the centre or place, subject
to the terms of the order or the variation or revocation of the
order.
(5)
A community treatment order may be made in
respect of a forensic patient who is to be released unconditionally in
accordance with an order of the Tribunal.
(6)
On and from the release of the forensic patient
unconditionally in accordance with the order of the Tribunal, the community
treatment order is taken to have been made under the Mental Health Act
2007.
100Reviews of persons in custody who are subject to community
treatment orders
The Tribunal must carry out reviews of persons
(other than forensic patients) who are subject to community treatment orders
and who are detained in correctional centres or detention centres no later
than 3 months after the community treatment orders are made and at least once
every 6 months during the term of each order.
Division 8Termination
of status as patient and other status changes
101Termination of status as forensic
patient
A person ceases to be a forensic patient if one
of the following circumstances occurs—
(a)
the person is released unconditionally in
accordance with an order made by the Tribunal or by a
court,
(b)
the person is released conditionally in
accordance with an order made by the Tribunal and the conditions
expire,
(c)
the person has been found unfit to be tried for
an offence and is found not guilty of an offence at a special
hearing,
(d)
the person has been found unfit to be tried for
an offence and is found guilty at a special hearing and no limiting term is
imposed on the person,
(e)
a limiting term imposed on the person expires and
no extension order or interim extension order is made against the
person,
(f)
an extension order or interim extension order
made against the person expires and no further order is
made,
(g)
the person was found unfit to be tried for an
offence and is later found fit to be tried for the offence, and the Director
of Public Prosecutions has provided advice to the court under section
53(2),
(h)
the relevant charges against the person are
dismissed or the Director of Public Prosecutions notifies the court that the
person will not be further proceeded with for the relevant
charges,
(i)
the Tribunal classifies the patient as an
involuntary patient,
(j)
in any other circumstances prescribed by the
regulations for the purposes of this section.
s 101: Am 2022 No 41,
Sch 7[2].
102Effect of unlawful absence on limiting
term
(1)
For the purposes of calculating whether a
limiting term has expired, a period during which the person on whom the term
was imposed was unlawfully absent from a mental health facility or other place
in which the person was detained under this Act is not to be counted as part
of the limiting term.
(2)
In this section, a person is unlawfully
absent from a mental health facility or other place during
any period commencing when an order is made for the apprehension of the person
under section 109 and ending when the person is apprehended and detained under
the order.
(3)
The Tribunal must notify a person who is
apprehended under an order made under section 109 or 111 in writing of the
effect of this section and the new expiry date of the person’s limiting
term, if the Tribunal is notified that the person has been so
apprehended.
103Extension of status as forensic
patient
A person’s status as a forensic patient may
be extended in accordance with Part 6.
104Termination of status as correctional
patient
A correctional patient ceases to be a
correctional patient if one of the following circumstances
occurs—
(a)
the person is transferred to a correctional
centre, detention centre or other place (other than another mental health
facility) from the mental health facility,
(b)
a sentence of imprisonment expires and no high
risk offender detention order is made against the person,
(c)
a high risk offender detention order made against
the person expires and no further high risk offender detention order is
made,
(d)
the person is ordered to be released on
parole,
(e)
the person is otherwise released on the order of
a court,
(f)
the relevant charges against the person are
dismissed,
(g)
the Director of Public Prosecutions notifies the
court or the Tribunal that the person will not be further proceeded against in
respect of the relevant charges.
105Classification of patients as involuntary
patients
(1)
The Tribunal may, on a review under this Part,
classify a patient detained in a mental health facility, correctional centre,
detention centre or other place as an involuntary patient if—
(a)
the patient is a forensic patient detained
following a special hearing and is to cease to be a forensic patient within 6
months after the date of the review, or
(b)
the patient is a correctional patient who is to
cease to be a correctional patient within 6 months after the date of the
review.
(2)
The Tribunal may order that a patient classified
as an involuntary patient be transferred from a correctional centre or
detention centre to a mental health facility.
106Limits on classification of forensic
patients
(1)
The Tribunal may only classify a forensic patient
who is subject to a limiting term or an extension order as an involuntary
patient if—
(a)
each Minister entitled to apply for an extension
of the patient’s forensic status has notified the Tribunal that an
application for an extension is not proposed to be made,
or
(b)
the Supreme Court has dismissed an application
under Part 6 for extension of the patient’s forensic
status.
(2)
The Tribunal may ask a Minister to provide advice
about whether the Minister proposes to make an application under Part
6.
(3)
A Minister entitled to make an application under
Part 6 for extension of a patient’s forensic status is to notify the
Tribunal as soon as practicable of a decision to apply for, or not to apply
for, the extension.
107Release from detention on ceasing to be a forensic patient
or correctional patient
(1)
A person who ceases to be a forensic patient must
be discharged from the mental health facility, correctional centre, detention
centre or other place in which the person is detained.
(2)
A person who ceases to be a correctional patient
must be discharged from the mental health facility in which the person is
detained.
(3)
A person must not be discharged from a mental
health facility under this section if the person is classified as an
involuntary patient.
(4)
A person who is detained in a correctional centre
or detention centre must not be discharged from the centre under this section
if—
(a)
the person has ceased to be a forensic patient
because the person has been found fit to be tried for an offence,
or
(b)
the person is required to continue to be detained
for any other lawful reason.
108Person who ceases to be forensic patient or correctional
patient may become voluntary patient
Nothing in this Part prevents the application of
Chapter 3 of the Mental Health Act
2007 to a person who ceases to be a forensic patient or a
correctional patient or the person from remaining in a mental health facility
as a voluntary patient.
Division 9Enforcement
109Breach of orders for release
(1)
The President of the Tribunal may make an order
for the apprehension of a person if it appears to the President
that—
(a)
the person has breached a condition of an order
for the person’s conditional release under this Part,
or
(b)
the person has committed a breach of an order
releasing the person from custody made by a court after a special verdict of
act proven but not criminally responsible, or
(c)
the person has breached a condition of leave of
absence granted under this Part, or
(d)
the person has been granted conditional release
or leave of absence and has suffered a deterioration of mental condition and
is at risk of causing serious harm to himself or herself or to any member of
the public because of the person’s condition.
(2)
An apprehension order authorises the detention of
the person at the mental health facility, correctional centre, detention
centre or other place specified in the order.
(3)
The President of the Tribunal may, pending a
review of a person who is apprehended, make one or more of the following
orders—
(a)
an order that the person continue to be given
treatment in accordance with the order for the person’s conditional
release,
(b)
an order that the person be assessed by a medical
practitioner,
(c)
an order that the person be detained in a mental
health facility for assessment and treatment.
(4)
The Tribunal must review the case of a person
apprehended under this section and may—
(a)
order the person’s temporary detention,
care or treatment in a mental health facility, correctional centre, detention
centre or other place in the manner, specified in the order,
or
(b)
confirm the person’s release or leave,
either unconditionally or subject to conditions, or
(c)
revoke the order for release and order the
person’s detention, care or treatment in a mental health facility,
correctional centre, detention centre or other place in the manner, specified
in the order.
Note—
The Tribunal may also make a community treatment
order under Division 7.
110Execution of apprehension orders
(1)
A police officer to whose notice an apprehension
order under this Division is brought must—
(a)
apprehend and take or assist in taking the person
to the mental health facility, correctional centre, detention centre or other
place specified in the order, or
(b)
cause or make arrangements for some other police
officer to do so.
(2)
A police officer may—
(a)
enter premises to apprehend the person,
and
(b)
apprehend the person without a warrant,
and
(c)
exercise any of the powers conferred on a person
who is authorised under section 81 of the Mental Health
Act 2007 to take a person to a mental health
facility.
111Apprehension of persons not permitted to be absent from
mental health facility
(1)
Without limiting section 109, the authorised
medical officer of a mental health facility may apprehend a person, or direct
a person to be apprehended, if the person fails to return to the facility at
the end of a period of leave of absence granted under this Part or fails to
comply with a condition to which that grant of leave was
subject.
(2)
The person may be apprehended by any of the
following persons—
(a)
the authorised medical officer or any other
suitably qualified person employed at the mental health
facility,
(b)
a police officer,
(c)
a person authorised by the Secretary or the
authorised medical officer,
(d)
a person assisting a person referred to in
paragraph (a), (b) or (c).
(3)
The authorised medical officer may request that a
police officer apprehend, or assist in apprehending, a person under this
section if the authorised medical officer is of the opinion that there are
serious concerns relating to the safety of the person or other persons if the
person is taken to the mental health facility without the assistance of a
police officer.
(4)
A police officer to whose notice the request is
brought may—
(a)
apprehend and take or assist in taking the person
to the mental health facility, or
(b)
cause or make arrangements for some other police
officer to do so.
(5)
A police officer may enter premises to apprehend
a person under this section, and may apprehend the person, without a warrant
and may exercise any of the powers conferred on a person who is authorised
under section 81 of the Mental Health Act
2007 to take a person to a mental health
facility.
(6)
A person who is apprehended under this section is
to be conveyed to and detained at the mental health facility at which the
person was detained immediately before the period of leave
commenced.
(7)
The authorised medical officer must notify the
Tribunal if—
(a)
the authorised medical officer directs a person
to be apprehended under this section, or
(b)
a person is apprehended under this
section.
112Apprehended person may seek reconsideration by
Tribunal
(1)
A person who is apprehended under this Division
may request the Tribunal to investigate the evidence on which the order for
the person’s apprehension was made and may adduce other evidence for the
consideration of the Tribunal.
(2)
On a reconsideration under this section, the
Tribunal may make any order it thinks fit concerning the detention or release
of the person.
113Aiding or permitting escape
(1)
A person must not release or attempt to release a
person who is being conveyed to or detained in a mental health facility or
other place under this Act.
(2)
A medical superintendent or any other person
employed in a mental health facility must not—
(a)
intentionally or negligently permit a person
detained in the facility under this Act to escape from the facility,
or
(b)
aid a person so detained to escape or attempt to
escape from a mental health facility.
Maximum penalty—
(a)
on conviction on indictment—imprisonment
for 3 years, or
(b)
on summary conviction—imprisonment for 1
year or 10 penalty units, or both.
114Issue of warrants for apprehension of persons outside State
and other persons
A Magistrate or an authorised officer within the
meaning of the Criminal Procedure Act
1986 may issue a warrant for the apprehension of a person
if a credible person, on oath before the Magistrate or officer, shows
reasonable cause to suspect that the person is a forensic patient or a
correctional patient—
(a)
who has escaped from a mental health facility and
is outside the State, or
(b)
is the subject of an apprehension order under
this Division.
Division 10Miscellaneous
115Transfer and transport of patients
(1)
The Secretary may, by order in writing, order the
transfer of a forensic patient or correctional patient detained in a mental
health facility to another mental health facility.
(2)
The order is sufficient authority for the
transfer.
(3)
A person may be transferred to and detained in a
mental health facility, correctional centre, detention centre or other place
in accordance with an order under this Act.
(4)
A forensic patient or correctional patient may be
transported to or from a mental health facility, correctional centre,
detention centre or other place if it is necessary or convenient to do so for
the administration of this Act or the Mental Health
Act 2007.
(5)
The transport is to be subject to any security
conditions that the Secretary considers necessary.
(6)
A forensic patient, a correctional patient or a
person the subject of a transfer order under section 86 who has not yet been
transferred may be taken to or from a mental health facility by a person
referred to in section 81(1) of the Mental Health Act
2007, a person employed by the Department of Communities
and Justice or any other person prescribed by the
regulations.
(7)
Section 81 of that Act, and any regulations made
under that section, apply to or in respect of the transport of the following
persons in the same way as they apply to or in respect of the transport of a
person under that Act—
(a)
a forensic patient,
(b)
a correctional patient,
(c)
a person the subject of a transfer order under
section 86 of this Act who has not yet been transferred to or from a mental
health facility, correctional centre, detention centre or other place under
this Act.
116Effect of detention in mental health facility on sentence
and parole
(1)
A period of detention of a person in a mental
health facility or other place, following a transfer under this Part from a
correctional centre or detention centre, is to be treated as if it were a
period of imprisonment in a correctional centre or a detention centre for the
purposes of the person’s sentence and parole.
(2)
For the purposes of Part 6 of the Crimes (Administration of Sentences) Act
1999, a forensic patient who is currently serving a
sentence of imprisonment, or a correctional patient, who is detained in a
mental health facility, is taken to be serving a full-time sentence of
detention in a correctional centre or detention centre.
Note—
Part 6 of that Act contains provisions permitting
the granting of parole to certain persons serving full-time sentences of
detention.
(3)
The detention of a person in a mental health
facility or other place under this Part does not prevent the granting of
parole to the person under the Crimes (Administration of
Sentences) Act 1999.
117Security conditions for patients
(1)
A forensic patient who is detained in a mental
health facility or other place (other than a correctional centre or detention
centre) or is absent in accordance with this Part is to be subject to any
security conditions that the Secretary considers
necessary.
(2)
A forensic patient who is detained in a
correctional centre or detention centre or in a part of a correctional centre
or detention centre that is a mental health facility, or a correctional
patient who is detained in a mental health facility or other place or is
absent in accordance with this Part, is to be subject to security conditions
in accordance with relevant legislation and with any protocol agreed between
the Secretary and the Commissioner of Corrective Services or the Secretary of
the Department of Communities and Justice (as the case
requires).
(3)
To avoid doubt, for the purposes of subsection
(2)—
(a)
a part of a correctional centre that is a mental
health facility is taken to be a correctional centre within the meaning of the
Crimes (Administration of Sentences) Act
1999 and a forensic patient or correctional patient who is
detained in that facility is taken to be an inmate within the meaning of that
Act and that Act and the regulations under that Act, apply to the patient,
subject to any modifications and to the extent specified by the regulations,
and
(b)
a part of a detention centre that is a mental
health facility is taken to be a detention centre within the meaning of the
Children (Detention Centres) Act 1987
and a forensic patient or correctional patient who is detained in that
facility is taken to be an inmate within the meaning of that Act and that Act
and the regulations under that Act, apply to the patient, subject to any
modifications and to the extent specified by the
regulations.
118Planning for release and leave
(1)
The authorised medical officer of a mental health
facility must, if a person detained in a mental health facility as a forensic
patient is to be released or granted leave under this Part, take all
reasonably practicable steps to ensure that the person and any designated
carer or the principal care provider of the person are consulted in relation
to planning the person’s release or leave and any subsequent treatment
or other action considered in relation to the person.
(2)
In planning the release of the person and
subsequent treatment or other action considered in relation to the person, the
authorised medical officer must take all reasonably practicable steps to
consult with agencies involved in providing relevant services to the person,
any designated carer or the principal care provider of the person and any
dependent children or other dependants of the person.
(3)
The authorised medical officer must take all
reasonably practicable steps to provide a person who is released or given
leave of absence from the mental health facility with appropriate information
as to follow-up care.
(4)
The Commissioner of Corrective Services and the
chief executive of Youth Justice NSW within the Department of Communities and
Justice must provide support to an authorised medical officer for the purposes
of this section.
119Retaking of escapees
(1)
A forensic patient or correctional patient who
escapes from a mental health facility or other place may be apprehended at any
time by any of the following persons—
(a)
the medical superintendent of the mental health
facility or any other suitably qualified person employed in the mental health
facility who is authorised to do so by the medical
superintendent,
(b)
a police officer,
(c)
a person authorised by the Secretary or the
medical superintendent,
(d)
a person assisting a person referred to in
paragraph (a), (b) or (c).
(2)
On being apprehended, the patient is to be
conveyed to and detained in the mental health facility or other place from
which the patient escaped.
(3)
This section does not affect any power of any
other person to apprehend a person under the Crimes
(Administration of Sentences) Act
1999.
120Forensic patients and correctional patients in the
community may be detained and treated under Mental Health
Act 2007
Nothing in this Part limits the application of
the Mental Health Act 2007 to a person who
has been granted conditional release or leave of absence under this
Part.
Part 6Extension of status as forensic patient
Division 1Extension
orders
121Extension orders for forensic
patients
(1)
The Supreme Court may, on application under
Division 2, make an order for the extension of a person’s status as a
forensic patient.
(2)
An order made under this section is an extension
order.
122Forensic patients in respect of whom extension orders may
be made
(1)
A forensic patient can be made the subject of an
extension order as provided for by this Part if and only if the Supreme Court
is satisfied to a high degree of probability that—
(a)
the forensic patient poses an unacceptable risk
of causing serious harm to others if the patient ceases to be a forensic
patient, and
(b)
the risk cannot be adequately managed by other
less restrictive means.
(2)
The Supreme Court is not required to determine
that the risk of a person causing serious harm to others is more likely than
not in order to determine that the person poses an unacceptable risk of
causing serious harm to others.
Note—
Less restrictive means of managing a risk
includes, but is not limited to, a patient being involuntarily detained or
treated under the Mental Health Act
2007.
Division 2Application
for extension orders
123Minister may apply for extension
order
A Minister administering this Act may apply to
the Supreme Court for an extension order against a forensic
patient.
124Application for extension order
(1)
An application for an extension order may be made
in respect of a forensic patient only if the forensic patient is subject
to—
(a)
a limiting term, or
(b)
an existing extension
order.
(2)
An application in respect of a forensic patient
may not be made more than 6 months before—
(a)
the end of the forensic patient’s limiting
term, or
(b)
the expiry of the existing extension
order,
as appropriate.
125Requirements with respect to
application
An application for an extension order must be
supported by documentation—
(a)
that addresses each of the matters referred to in
section 127(2) (to the extent relevant to the application),
and
(b)
that includes a report (prepared by a qualified
psychiatrist, registered psychologist or registered medical
practitioner)—
(i)
that assesses the risk of the forensic patient
causing serious harm to others, and
(ii)
that addresses the need for ongoing management of
the patient as a forensic patient and the reasons why the risk of the forensic
patient causing serious harm to others cannot be adequately managed by other
less restrictive means.
126Pre-hearing procedures
(1)
An application under this Division for an
extension order must be served on the forensic patient concerned within 2
business days after the application is filed in the Supreme Court or within
any further time that the Supreme Court may allow.
(2)
The Minister applying for the extension order
must notify the Tribunal as soon as practicable after making the
application.
(3)
Subject to subsections (7)–(9), the
Minister applying for the extension order must disclose to the forensic
patient the documents, reports and other information that are relevant to the
proceedings on the application (whether or not intended to be tendered in
evidence)—
(a)
in the case of anything that is available when
the application is made, as soon as practicable after the application is made,
and
(b)
in the case of anything that subsequently becomes
available, as soon as practicable after it becomes
available.
(4)
A preliminary hearing into the application is to
be conducted by the Supreme Court within 28 days after the application is
filed in the Supreme Court or within any further time that the Supreme Court
may allow.
(5)
If, following the preliminary hearing, the
Supreme Court is satisfied that the matters alleged in the supporting
documentation would, if proved, justify the making of an extension order, the
Supreme Court must make orders—
(a)
appointing—
(i)
2 qualified psychiatrists, or
(ii)
2 registered psychologists,
or
(iii)
2 registered medical practitioners,
or
(iv)
any combination of 2 persons referred to in
subparagraphs (i)–(iii),
to conduct separate examinations of the forensic patient
and to give reports to the Supreme Court on the results of those examinations,
and
(b)
directing the forensic patient to attend those
examinations.
(6)
If, following the preliminary hearing, the
Supreme Court is not satisfied that the matters alleged in the supporting
documentation would, if proved, justify the making of an extension order, the
Supreme Court must dismiss the application.
(7)
A forensic patient in respect of whom an
application for an extension order has been made is, unless the Supreme Court
otherwise determines, entitled to inspect or otherwise have access to any
medical records in the possession of any person relating to the forensic
patient.
(8)
A representative of the forensic patient is
entitled, at any time before or during the proceedings on the application, to
inspect or otherwise have access to any medical records in the possession of
any person relating to the forensic patient.
(9)
Subject to any order or direction of the Supreme
Court, in relation to an inspection under subsection (8) of, or other access
under that subsection to, any medical record relating to a forensic
patient—
(a)
if a medical practitioner warns the
representative of the forensic patient that it may be harmful to communicate
to the forensic patient, or any other person, specified information contained
in those medical records, the representative is to have full and proper regard
to that warning, and
(b)
the representative is not obliged to disclose to
the forensic patient any information obtained by virtue of the inspection or
other access.
Division 3Determination of applications
127Determination of application for extension
orders
(1)
The Supreme Court may determine an application
under this Division for an extension order—
(a)
by making the order, or
(b)
by dismissing the
application.
(2)
In determining whether or not to make an
extension order, the Supreme Court must have regard to the following matters
in addition to any other matter it considers relevant—
(a)
the safety of the community,
(b)
the reports received from the persons appointed
under section 126(5) to conduct examinations of the forensic
patient,
(c)
the report of the qualified psychiatrist,
registered psychologist or registered medical practitioner provided under
section 125(b),
(d)
any other report of a qualified psychiatrist,
registered psychologist or registered medical practitioner provided in support
of the application or by the forensic patient,
(e)
any order or decision made by the Tribunal with
respect to the forensic patient that is relevant to the
application,
(f)
any report of the Secretary of the Ministry of
Health, the Commissioner of Corrective Services, the Secretary of the
Department of Communities and Justice or any other government Department or
agency responsible for the detention, care or treatment of the forensic
patient,
(g)
the level of the forensic patient’s
compliance with any obligations to which the patient is or has been subject
while a forensic patient (including while released from custody subject to
conditions and while on leave of absence granted under this
Act),
(h)
the views of the court that imposed the limiting
term or existing extension order on the forensic patient at the time the
limiting term or extension order was imposed,
(i)
any other information that is available as to the
risk that the forensic patient will in future cause serious harm to
others.
(3)
If the Supreme Court makes an extension order in
respect of a forensic patient, the Court is to notify the Tribunal of the
making of the order.
128Term of extension orders
(1)
An extension order—
(a)
commences when it is made, or when the limiting
term or existing extension order to which the forensic patient is subject
expires, whichever is the later, and
(b)
expires at the end of the period (not exceeding 5
years from the day on which it commences) that is specified in the
order.
(2)
Nothing in this section prevents the Supreme
Court from making a second or subsequent extension order against the same
forensic patient.
129Continuation of orders relating to forensic
patients
The making of an extension order or interim
extension order in respect of a forensic patient does not affect the operation
of any order as to the forensic patient’s care, detention, treatment or
release from custody to which the forensic patient was subject immediately
before the making of the extension order.
Division 4Interim
extension orders
130Interim extension orders
The Supreme Court may make an order for the
interim extension of a person’s status as a forensic patient if, in
proceedings on an application for an extension order, it appears to the
Court—
(a)
that the limiting term or existing extension
order to which the forensic patient is subject will expire before the
proceedings are determined, and
(b)
that the matters alleged in the supporting
documentation would, if proved, justify the making of an extension
order.
131Term of interim extension orders
(1)
An interim extension order commences on the day
fixed in the order for its commencement (or, if no day is fixed, as soon as it
is made) and expires at the end of the period (not exceeding 3 months from the
day on which it commences) that is specified in the
order.
(2)
An interim extension order made for a period of
less than 3 months may be renewed from time to time, but not so as to provide
for the extension of the person’s status as a forensic patient under an
order of that kind for periods totalling more than 3
months.
132Interim extension orders to continue in force for 24 hours
in certain circumstances
(1)
If the Supreme Court dismisses an application for
an extension order in respect of a forensic patient who is detained only as a
result of an interim extension order, the Court may (on its own motion or on
application) order that the patient be detained for a further period of up to
24 hours to enable a medical practitioner or accredited person to assess
whether a mental health certificate should be given in respect of the patient
under section 19 of the Mental Health Act
2007.
(2)
The order ceases to authorise the detention of
the person if the medical practitioner or accredited person making the
assessment decides not to give that mental health certificate about the
person.
Division 5Extension
orders or interim extension orders may be varied or
revoked
133Extension order or interim extension order may be varied or
revoked
(1)
The Supreme Court may at any time vary or revoke
an extension order or interim extension order—
(a)
on the application of a Minister administering
this Act or the forensic patient, or
(b)
on the recommendation of the Tribunal under
section 83(3).
(2)
The period of an order must not be varied so that
the total period as varied is greater than that otherwise permitted under this
Part.
(3)
Without limiting the grounds for revoking an
extension order or interim extension order, the Supreme Court may revoke an
extension order or interim extension order if satisfied that circumstances
have changed sufficiently to render the order
unnecessary.
Division 6Supreme
Court proceedings
134Nature of proceedings
Proceedings under this Part (including
proceedings on an appeal under this Part) are civil proceedings and, to the
extent to which this Part does not provide for their conduct, are to be
conducted in accordance with the law (including the rules of evidence)
relating to civil proceedings.
135Right of appeal
(1)
An appeal to the Court of Appeal lies from a
determination of the Supreme Court to make, or to refuse to make, or to vary
or revoke an extension order.
(2)
An appeal may be on a question of law, a question
of fact or a question of mixed law and fact.
(3)
An appeal against the decision of the Supreme
Court may be made, as of right, within 28 days after the date on which the
decision was made or, by leave, within the further time as the Court of Appeal
may allow.
(4)
The making of an appeal does not stay the
operation of an extension order.
(5)
If the Court of Appeal remits a matter to the
Supreme Court for decision after an appeal is made, the extension order the
subject of the appeal continues in force, subject to any order made by the
Court of Appeal.
(6)
Without limiting any other jurisdiction it may
have, if the Court of Appeal remits a matter to the Supreme Court for decision
after an appeal is made, the Court of Appeal may make an interim order
revoking or varying an extension order the subject of the
appeal.
(7)
This section does not limit any right of appeal
that may exist apart from this Part.
136Costs not to be awarded against forensic
patient
An order for costs may not be made against a
forensic patient in relation to proceedings under this Part (including
proceedings on an appeal under this Part).
137Preservation of Supreme Court
jurisdiction
Nothing in this Part limits the jurisdiction of
the Supreme Court apart from this Act.
Division 7Miscellaneous
138Minister may require provision of certain
information
(1)
A Minister administering this Act may, by order
in writing served on any person, require the person to provide to the Minister
any document, report or other information in that person’s possession,
or under that person’s control, relating to the behaviour, or physical
or mental condition, of any forensic patient who is subject to a limiting
term, extension order or interim extension order.
(2)
A person who fails to comply with the
requirements of an order under this section is guilty of an
offence.
Maximum penalty—100 penalty units or
imprisonment for 2 years, or both.
(3)
A Minister administering this Act may request a
court or the Tribunal to provide to the Minister any document, report or other
information held by the court or Tribunal relating to the behaviour, or
physical or mental condition, of any forensic patient who is subject to a
limiting term, extension order or interim extension
order.
(4)
Despite any Act or law to the contrary, a
document or report of a kind referred to in subsection (1) or (3), or a copy
of a document or report of that kind, is admissible in proceedings under this
Act (whether admission is sought by the Minister to whom the document or
report was provided or by another Minister administering this
Act).
139Information sharing
(1)
A Minister administering this Act may disclose
forensic patient information obtained under this Act to any other Minister
administering this Act—
(a)
for the purpose of enabling or assisting either
Minister to exercise functions under this Act, or
(b)
for the purpose of the administration or
execution of this Act.
(2)
In this section—
forensic patient
information means a document, report or other information
relating to a forensic patient, including information of that kind that
is—
(a)
personal information within the meaning of the
Privacy and Personal Information Protection Act
1998 or the Health Records and
Information Privacy Act 2002, or
(b)
health information within the meaning of the
Health Records and Information Privacy Act
2002.
140Protection of certain persons from
liability
No action lies against any person (including the
State) for or in respect of any act or omission done or omitted by the person
if it was done or omitted in good faith for the purposes of, or in connection
with the administration or execution of, this Part.
141Hearings
This Part does not affect the right of any party
to proceedings under this Part—
(a)
to appear, either personally or by the
party’s legal representative, or
(b)
to call witnesses and give evidence,
or
(c)
to cross-examine witnesses,
or
(d)
to make submissions to the Supreme Court on any
matter connected with the proceedings.
142Bail Act 2013 not
to apply
The Bail Act
2013 does not apply to or in respect of a person who is
the subject of proceedings under this Part.
143Rules of court
(1)
Rules of court may be made under the Supreme Court Act 1970 for regulating
the practice and procedure of the Supreme Court in respect of proceedings
under this Part.
(2)
This section does not limit the rule-making
powers conferred by the Supreme Court Act
1970.
144Qualification of psychiatrists
For the purposes of this Part, a psychiatrist is
not a qualified psychiatrist unless he or she is a registered medical
practitioner who is a fellow of the Royal Australian and New Zealand College
of Psychiatrists.
Part 7Tribunal proceedings
Division 1Provisions
relating to proceedings
145Victims and reviews by Tribunal
(1)
A victim of a forensic patient may make a
submission to the Tribunal if the Tribunal is considering the release of or
the grant of leave of absence to the forensic patient.
(2)
A submission may include an application under
section 146(2).
(3)
The victim may request the Tribunal not to
disclose to the forensic patient the whole or part of a submission made by the
victim.
(4)
The Tribunal is to agree to a request of a victim
not to disclose the whole or part of a submission unless it considers that it
is not in the interests of justice to agree to the request.
Note—
Among other things that may be considered by the
Tribunal is the question of procedural fairness to the forensic
patient.
(5)
The regulations may make provision for or with
respect to submissions by victims relating to the release of or grant of leave
of absence to forensic patients.
(6)
Without limiting subsection (5), the regulations
may make provision for or with respect to the following—
(a)
the matters about which a victim may make
submissions,
(b)
the representation of victims by nominated
support persons at hearings conducted for the purpose of a
review,
(c)
the form of submissions by
victims,
(d)
the disclosure of victims’ submissions to
the forensic patient or other persons, including the circumstances in which
the Tribunal may determine that, having regard to the interests of justice,
non-disclosure is reasonable in the circumstances.
(7)
In conducting a review under this Act, the
Tribunal is to have regard to the rights of victims in accordance with the
Charter of Victims Rights set out in the Victims Rights
and Support Act 2013.
146Tribunal may amend or impose conditions on release or leave
orders on application of victims
(1)
This section applies to an order of the Tribunal
for the release of, or granting leave of absence to, a forensic
patient.
(2)
A registered victim of the patient may apply to
the Tribunal for any of the following orders—
(a)
an order varying a non-association condition of
an order to which this section applies or imposing a non-association condition
on an order to which this section applies,
(b)
an order varying a place restriction condition of
an order to which this section applies or imposing a place restriction
condition on an order to which this section
applies.
(3)
The Tribunal may, on an application being made,
vary the order to which this section applies or impose any condition on the
order or make any other order it may make under this
Part.
(4)
In this section—
non-association
condition means a condition imposed by the Tribunal relating
to the association or non-association by a forensic patient with victims or
victims’ families.
place restriction
condition means a condition imposed by the Tribunal relating
to the frequenting or visiting of places by a forensic
patient.
147General matters relating to Tribunal
functions
(1)
For the purposes of a review of a patient, the
Tribunal may communicate with any persons, take any action and make any
recommendations it thinks fit.
(2)
The Minister for Health and Medical Research and
the Attorney General may appear before the Tribunal, or make submissions to
the Tribunal, in relation to any of the following—
(a)
the possible release of or grant of leave of
absence to a forensic patient,
(b)
a recommendation to revoke an extension order in
respect of a forensic patient,
(c)
the review of a patient who has been apprehended
following an order by the President of the Tribunal under this
Act.
(3)
A review of the case of a forensic patient or a
correctional patient under this Act may be conducted at the same time as any
other review of the patient under this Act.
(4)
An order by the Tribunal under this Act must be
in writing.
(5)
The Tribunal must inform the Minister for Police
and Emergency Services, the Minister for Health and Medical Research and the
Attorney General of an order it makes for the release of a person and of the
date of the person’s release.
148Forensic Division to exercise
functions
(1)
The functions of the Tribunal under this Act are
to be exercised by the Forensic Division of the
Tribunal.
(2)
The Forensic Division of the Tribunal is to
consist of the following members—
(a)
the President or a Deputy
President,
(b)
a member who is a psychiatrist, a psychologist or
other suitable expert in relation to a mental condition,
(c)
a member who has other suitable qualifications or
experience.
Note—
Under section 150(1) of the Mental Health Act 2007, the Tribunal is
to be constituted by members nominated by the President. See Chapter 6 of the
Mental Health Act 2007 for other
provisions applying generally to the Tribunal.
(3)
The Tribunal must not order the release of a
forensic patient under this Act unless it is constituted by at least 1 member,
including the President or a Deputy President, who is the holder or former
holder of a judicial office.
(4)
The regulations may provide that for specified
functions of the Tribunal under this Act or the regulations, the Forensic
Division is to be constituted by the President or a Deputy
President.
(5)
The regulations may make provision for or with
respect to the constitution of the Tribunal, and procedure, for a limited
review under this Part.
Note—
Regulations may also be made under section 160 of
the Mental Health Act 2007 with respect to
procedure of the Tribunal for the purposes of this Act.
Division 2Appeals
149References to matters of law
A reference in this Division to a matter of law
includes a reference to a matter relating to the jurisdiction of the
Tribunal.
150Appeals against Tribunal determinations
generally
(1)
A forensic patient, a correctional patient or a
person on bail who is a party to a proceeding before the Tribunal under this
Act may appeal to the Supreme Court, by leave of the Court, from any
determination (other than a determination as to the release of the person) of
the Tribunal in that proceeding—
(a)
on a question of law, or
(b)
on any other question.
(2)
The Minister for Health and Medical Research may
appeal to the Supreme Court, as of right, from any determination (other than a
determination as to the release of the person) of the Tribunal in a proceeding
before the Tribunal under this Act—
(a)
on a question of law, or
(b)
on any other question.
(3)
A registered victim of a forensic patient who is
a party to proceedings under section 145 may appeal to the Supreme Court, by
leave of the Court, from any determination of the Tribunal under that section
in those proceedings—
(a)
on a question of law, or
(b)
on any other question.
151Appeals against release decisions
(1)
A person may appeal to the Court of Appeal, by
leave of the Court, from a determination of the Tribunal under this Act as to
the release of the person—
(a)
on a question of law, or
(b)
on any other question.
(2)
The Minister for Health and Medical Research may
appeal to the Court of Appeal, as of right, from a determination of the
Tribunal under this Act as to the release of a person—
(a)
on a question of law, or
(b)
on any other question.
(3)
The Attorney General may appeal to the Court of
Appeal from a determination of the Tribunal under this Act as to the release
of a person, as of right, on a question of law.
152Making of appeals
(1)
An appeal under this Division must be made not
later than 28 days—
(a)
after the determination of proceedings by the
Tribunal, or
(b)
in the case of an appeal by the Minister for
Health and Medical Research or the Attorney General, of written notification
to the Minister or Attorney General by the Tribunal of the reasons for an
order determining proceedings.
(2)
The court may extend the period within which an
appeal may be made.
(3)
An appeal to a court under this Division is to be
made subject to and in accordance with the rules of the
court.
153Decisions on appeal
(1)
After deciding the question the subject of an
appeal under this Division, a court may, unless it affirms the determination
of the Tribunal on the question—
(a)
make an order that in relation to the proceedings
in which the question arose, in its opinion, should have been made by the
Tribunal, or
(b)
remit its decision on the question to the
Tribunal and order a rehearing of the proceedings by the
Tribunal.
(2)
If a party has appealed under this Division to a
court against a determination of the Tribunal, either the Tribunal or the
court may suspend, until the appeal is determined, the operation of any order
or determination made by the Tribunal in the proceedings the subject of the
appeal.
(3)
If the Tribunal suspends the operation of an
order or a determination, the Tribunal or the court may terminate the
suspension or, where the court has suspended the operation of an order or a
determination, the court may terminate the suspension.
154Rehearings by Tribunal
(1)
If a rehearing is held following an appeal, the
Tribunal is not to proceed in a manner, or make an order or a decision, that
is inconsistent with the decision of the court remitted to the
Tribunal.
(2)
Fresh evidence, or evidence in addition to or in
substitution for the evidence on which the original determination was made,
may be given on a rehearing held by the Tribunal following an
appeal.
155Tribunal not liable for costs
The Tribunal or a member of the Tribunal is not
liable for any costs relating to a determination of the Tribunal, or the
failure or refusal of the Tribunal to make a determination, in respect of
which an appeal is made under this Act, or of the
appeal.
Part 8Victims Register
156Victims Register
(1)
There is to be a Victims
Register.
(2)
The following matters are to be included in the
Victims Register—
(a)
the names of victims of forensic patients who
have requested that they be given notice of the review by the Tribunal of
those patients,
(b)
any other matter prescribed by the
regulations.
(3)
The Victims Register may only include the name of
a victim of a forensic patient if—
(a)
there is a special verdict of act proven but not
criminally responsible for the offence against the victim entered in respect
of the forensic patient (whether or not following a special hearing),
or
(b)
a limiting term has been imposed on the forensic
patient following a verdict in a special hearing in respect of the offence
against the victim.
(4)
The Victims Register is to be kept by the
Commissioner of Victims Rights and is to be in the form determined by the
Commissioner.
(5)
The regulations may make provision for or with
respect to the following matters—
(a)
applications to register as a
victim,
(b)
the verification by the Commissioner of the
identity of persons applying to register as victims, and the circumstances
under which they became victims,
(c)
the use and disclosure of information contained
in the Victims Register,
(d)
notifications to victims by the Tribunal or the
Commissioner,
(e)
the operation and administration of the Victims
Register.
157Notification to victims of reviews and other
matters
(1)
The Commissioner of Victims Rights must give
notice to a victim of a forensic patient whose name is recorded in the Victims
Register if—
(a)
the forensic patient is due for a mandatory
review by the Tribunal, or
(b)
an application is made by or for the forensic
patient for a review by the Tribunal, or an application is made by or for the
forensic patient to the Tribunal, in relation to release or leave of absence,
or
(c)
the Tribunal makes an order for the release
(including the conditional release) of, or granting leave of absence to, the
forensic patient or refuses to make an order of that kind,
or
(d)
the forensic patient ceases to be a forensic
patient, or
(e)
the forensic patient is unlawfully absent from a
mental health facility or other place of detention, or
(f)
the forensic patient appeals against a decision
of the Tribunal, or
(g)
notice is required to be given of a specified
matter by regulations made for the purposes of this
paragraph.
(2)
The notice is to be given subject to and in
accordance with the regulations.
(3)
Without limiting subsection (2), the notice must
contain the following information—
(a)
the matter being notified,
(b)
that the victim may make a submission to the
Tribunal in review proceedings involving the forensic
patient,
(c)
the form that a submission may
take,
(d)
the period within which a submission must be
made.
(4)
The Commissioner is not required to give notice
of a matter under this section if—
(a)
the matter required to be notified to the victim
is included in any other requirement to give notice to the victim under this
Act, or
(b)
the victim has notified the Commissioner that the
victim does not require notice of the matter.
(5)
A failure by the Commissioner to comply with this
section does not affect the validity of any decision or order made by the
Tribunal.
Part 9Miscellaneous
158Notification of expiry of limiting term or extension
order
At least 6 months before the expiry of a limiting
term or extension order to which a forensic patient is subject, the Tribunal
must inform each Minister administering this Act of the date on which the
limiting term or extension order is due to expire.
159Duties of certain agencies
The following must use their best endeavours to
comply with a request made to them under this Act by the Tribunal if the
request is consistent with the discharge of their responsibilities and does
not unduly prejudice the discharge of their functions—
(a)
the Secretary of the Ministry of
Health,
(b)
the Commissioner of Corrective
Services,
(c)
the Secretary of the Department of Communities
and Justice,
(d)
the Commissioner of Victims
Rights,
(e)
the Executive Director, Juvenile Justice,
Department of Communities and Justice,
(f)
any other government Department or agency
responsible for the detention, care or treatment of a forensic patient or
correctional patient.
160Tribunal to be notified if charges dismissed or proceedings
end
A court or the Director of Public Prosecutions
must notify the Tribunal if the relevant charges against a forensic patient or
correctional patient are dismissed or the person is not to be further
proceeded against in respect of the relevant charges.
161Exchange of information
(1)
The Secretary of the Ministry of Health, the
Commissioner of Corrective Services and the Secretary of the Department of
Communities and Justice may enter into arrangements (information sharing
protocols) with each other to enable information held by
their Departments and associated agencies to be shared or exchanged between
those Departments and agencies.
(2)
The information to which an information sharing
protocol may relate is limited to the following—
(a)
information concerning forensic patients and
correctional patients,
(b)
other information that may be prescribed by the
regulations.
(3)
The Commissioner of Victims Rights and the
President of the Tribunal may enter into arrangements with each other to
exchange information held by the Department of Communities and Justice, the
Commissioner or the Tribunal for the purposes of the Victims Register and
notifications under Part 8.
(4)
Under an information sharing protocol or other
arrangement under this section, each Department and associated agency the
subject of the arrangement is authorised, without obtaining the consent of any
person whose consent would otherwise be required—
(a)
to request and receive information held by
another Department or associated agency the subject of the arrangement,
and
(b)
to disclose information to any of those
Departments or associated agencies.
(5)
The authority conferred by this section relates
only to information that is reasonably necessary—
(a)
in the case of information exchanged under an
information sharing protocol, to assist in the exercise of functions under
this Act or the functions of the relevant Departments or associated agencies
concerned, or
(b)
in the case of information exchanged under an
arrangement under subsection (3), for the purposes of the Victims Register and
notifications under Part 8.
(6)
This section does not limit the operation of an
Act under which the Department or associated agency concerned is authorised or
required to disclose information to another person or
body.
(7)
This section has effect despite the Crimes (Administration of Sentences) Act
1999 or the Children (Detention
Centres) Act 1987.
(8)
The provision of information under this section
does not constitute a contravention of the Health Records
and Information Privacy Act 2002 or the Privacy and Personal Information Protection Act
1998.
(9)
In this section—
associated agency
means any of the following—
(a)
a local health district (within the meaning of
the Health Services Act
1997),
(b)
a statutory health corporation (within the
meaning of the Health Services Act
1997),
(c)
the Tribunal,
(d)
the Commissioner of Victims
Rights.
162Functions of Commissioner of Corrective Services and
Secretary of Department of Communities and Justice
(1)
Despite any provision of this Act or any order
made under this Act, the Commissioner of Corrective Services and the Secretary
of the Department of Communities and Justice may exercise any of their
functions in relation to a forensic patient or correctional patient who is
detained in a correctional centre or detention centre if the function is
exercised for the purpose of maintaining the security, good order or safety,
in any way, of the correctional centre or detention centre or its
inmates.
(2)
The Secretary of the Department of Communities
and Justice may delegate any of the Secretary’s functions under this
Part (other than this power of delegation) to the Executive Director, Juvenile
Justice, Department of Communities and Justice.
163Proceedings for offences
(1)
Proceedings for an offence against this Act are
to be dealt with summarily before the Local Court.
(2)
Proceedings for an offence under section 113 may
be dealt with on indictment.
164Delegation
(1)
A Minister administering this Act may, by
instrument in writing, delegate the exercise of any function of the Minister
under this Act (other than this power of delegation)—
(a)
to any person employed in a Department
responsible to the Minister, or
(b)
to any person, or any class of persons,
authorised for the purposes of this section by the
regulations.
(2)
The Secretary of the Department of Communities
and Justice may delegate the exercise of any function of the Secretary under
this Act (other than this power of delegation)—
(a)
to any person employed in the Department of
Communities and Justice, or
(b)
to any person, or any class of persons,
authorised for the purposes of this section by the
regulations.
(3)
Nothing in this section limits the operation of
section 21 of the Health Administration Act
1982.
165Orders for transfer of forensic
patients
If an order is made by a court, the Tribunal or
the Secretary of the Ministry of Health specifying that a forensic patient is
to be detained in or transferred to a specified correctional centre or
detention centre, the Commissioner of Corrective Services or the Secretary of
the Department of Communities and Justice may cause that patient to be
detained in any correctional centre or detention
centre.
166Regulations
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
167
s 167: Rep 1987 No
15, sec 30C.
Schedule 1Medical
certificate as to examination of inmate
(Section 86(3))
Mental Health and Cognitive
Impairment Forensic Provisions Act
2020
I, [name in full—use block letters]
(*Medical Practitioner/Psychiatrist) of do certify that on [date] at [state place
where examination took place], separately from any other medical
practitioner, I personally examined [name of inmate in full] *detained
at [name of correctional centre or detention centre where inmate is
imprisoned or detained if not the place where the examination took place],
and I am of the opinion that *he/she is *a mentally ill person/a person who
has a condition for which treatment is available in a mental health
facility.
I have formed this opinion on the following
grounds—
(1)
Facts indicating *mental illness/condition
observed by myself.
(2)
Other relevant information (if any) communicated
to me by others (state name and address of each informant).
Made and signed this [date]
[Signature]
*Delete whichever does not
apply.
sch 1: Am 2022 No 6,
Sch 1.4.
Schedule 2Savings,
transitional and other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
Any such provision—
(a)
may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later date,
and
(b)
has effect despite anything to the contrary in
this Schedule.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as—
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
Without limiting subclauses (1) and (2),
regulations made for the purposes of this clause may amend this Schedule to
provide for additional or different savings and transitional provisions
instead of including provisions in the regulations.
Part 2Provisions consequent on enactment of this
Act
2Definition
In this Part—
former Act means the Mental Health (Forensic Provisions) Act
1990.
3General savings
(1)
An act, matter or thing done or omitted to be
done under a provision of the former Act and having force or effect
immediately before the commencement of a provision of this Act that replaces
that provision is, on that commencement, taken to have been done or omitted to
be done under the provision of this Act.
(2)
This clause does not apply—
(a)
to the extent to which its application is
inconsistent with another provision of this Schedule or a provision of a
regulation made under this Schedule, or
(b)
to the extent that its application would be
inappropriate in a particular case.
4Existing victims register
The information contained in the register of
victims of forensic patients kept under the former Act immediately before the
commencement of this Act is taken to form part of the Victims Register for the
purposes of this Act.
5Application of new Act to existing proceedings where
defence of not guilty by reason of mental illness has been
raised
(1)
This clause applies to a defendant in proceedings
for offences commenced before the commencement of Part 3 of this Act where a
question has been raised before that commencement as to whether the defendant
was, at the time of commission of the offence, mentally ill as referred to in
section 38 of the former Act.
(2)
The former Act continues to apply to the
defendant until a determination is made as to whether a special verdict should
be entered or the defence is no longer being raised.
(3)
In circumstances where the court would have found
the special verdict of not guilty by reason of mental illness the court must
instead find the special verdict of act proven but not criminally
responsible.
6Former special verdicts
A special verdict that a person was not guilty of
an offence by reason of mental illness is taken, for all purposes, to be a
special verdict against the person of act proven but not criminally
responsible for the offence.
7Application of new Act to existing proceedings where
unfitness to be tried raised
(1)
This Act extends to proceedings for offences
commenced and not completed before the commencement of Part 4 of this Act if
the question of the defendant’s unfitness to be tried was raised before
that commencement.
(2)
Without limiting subclause (1), an inquiry or a
special hearing commenced under the former Act and not completed before that
commencement is to be continued in accordance with this
Act.
7AApplication of Part 2 of former Act to particular
persons
(1)
Part 2 of the former Act is to continue to apply
to existing proceedings as if the former Act had not been
repealed.
(2)
In this clause—
existing
proceedings means criminal proceedings—
(a)
in which the court has, before the commencement
of this Act, nominated a limiting term in respect of a person,
and
(b)
in which the court has not made an order under
section 27 of the former Act in relation to the
person.
8Application of Part 3 of former Act to existing
proceedings
(1)
Part 3 of the former Act is to continue to apply
to existing proceedings as if the former Act had not been
repealed.
(2)
In this clause—
existing
proceedings means criminal proceedings for which a court
attendance notice was issued before the commencement of this Act, even if
another court attendance notice is issued in relation to the proceedings after
that commencement.
9Application of Act to existing forensic
patients
A person who, immediately before the commencement
of Part 5 of this Act, was a forensic patient or a correctional patient under
the former Act is taken to be a forensic patient or a correctional patient
within the meaning of this Act and this Act applies
accordingly.
sch 2: Am 2021 No 4,
Sch 2[3] [4].
Schedule 3
sch 3: Am 2020 No 26,
Sch 1.12[1]–[3]; 2020 No 31, Sch 2.5. Rep 1987 No 15, sec
30C.
Historical notes
Table of amending instruments
Mental Health and Cognitive
Impairment Forensic Provisions Act 2020 No 12. Assented to
23.6.2020. Date of commencement, 27.3.2021, sec 2 and 2021 (116) LW 19.3.2021.
This Act has been amended as follows—
2020
No 26
Stronger Communities Legislation
Amendment (Crimes) Act 2020. Assented to 28.9.2020.
Date of commencement, assent, sec
2.
No 31
Stronger Communities Legislation
Amendment (Miscellaneous) Act 2020. Assented to
27.10.2020.
Date of commencement of Sch 2.5, assent, sec
2(1).
2021
No 4
COVID-19 Legislation Amendment
(Stronger Communities and Health) Act 2021. Assented to
24.3.2021.
Date of commencement of Sch 2, assent, sec
2(1).
2022
No 6
Health Legislation (Miscellaneous)
Amendment Act 2022. Assented to 24.3.2022.
Date of commencement, assent, sec
2.
No 41
Health Legislation (Miscellaneous)
Amendment Act (No 2) 2022. Assented to 4.10.2022.
Date of commencement of Sch 7, assent, sec
2(b).
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of amendments
Sec 9
Am 2021 No 4, Sch
2[1].
Sec 69
Am 2022 No 41, Sch
7[1].
Sec 77
Am 2021 No 4, Sch
2[2].
Sec 101
Am 2022 No 41, Sch
7[2].
Sec 167
Rep 1987 No 15, sec
30C.
Sch 1
Am 2022 No 6, Sch
1.4.
Sch 2
Am 2021 No 4, Sch 2[3]
[4].
Sch 3
Am 2020 No 26, Sch
1.12[1]–[3]; 2020 No 31, Sch 2.5. Rep 1987 No 15, sec
30C.