Mental Health (Forensic Provisions) Amendment Act 2013 No 102



An Act to amend the Mental Health (Forensic Provisions) Act 1990 with respect to the continued supervision and review by the Mental Health Review Tribunal of certain persons as forensic patients; and for related purposes.
2   Commencement
This Act commences on the date of assent to this Act.
[1]   Section 3 Definitions
Insert in alphabetical order in section 3 (1):
  
extension order means an order for the extension of a person’s status as a forensic patient under clause 1 of Schedule 1.
interim extension order means an order for the interim extension of a person’s status as a forensic patient under clause 10 of Schedule 1.
limiting term means a term nominated in respect of a person under section 23 (1) (b).
[2]   Section 23 Procedure after completion of special hearing
Omit “, in this section referred to as a limiting term,” from section 23 (1) (b).
[3]   Section 42 Forensic patients
Insert after section 42 (a):
  
(a1)  a person in respect of whom an extension order or interim extension order is in force,
[4]   Section 46 Further reviews by Tribunal of forensic patients
Insert “(other than a review of the case of a forensic patient who is subject to an extension order)” after “this section” in section 46 (4).
[5]   Section 47 Orders and recommendations on further Tribunal reviews
Insert after section 47 (2):
  
(2A)  The Tribunal must not make an order as to the release, unconditionally, of a forensic patient who is subject to an extension order but may make a recommendation to the Supreme Court as to the variation or revocation of the extension order.
[6]   Section 52 Additional circumstances for termination of classification as forensic patient
Omit “expires” from section 52 (2) (a).
Insert instead “under section 23 expires and an extension order or interim extension order has not been made against the person”.
[7]   Section 52 (2) (a1)
Insert after section 52 (2) (a):
  
(a1)  any extension order or interim extension order made against the person expires or is revoked and a subsequent extension order has not been made against the person,
[8]   Part 5, Division 2, Subdivision 4
Insert after Subdivision 3:
  
Subdivision 4 Extension of status as forensic patient
54A   Extension of status as forensic patient
A person’s status as a forensic patient may be extended in accordance with Schedule 1.
[9]   Section 76A Other matters relating to Tribunal functions
Insert “, or recommendation to revoke an extension order in respect of,” after “absence to” in section 76A (2).
[10]   Section 76AA
Insert after section 76A:
  
76AA   Notification 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.
[11]   Section 78 Savings and transitional provisions
Omit “Schedule 1”. Insert instead “Schedule 3”.
[12]   Schedule 1 Savings and transitional provisions
Renumber the Schedule as Schedule 3 and transfer after Schedule 2.
[13]   Schedule 1
Insert before Schedule 2:
  
Schedule 1 Extension of status as forensic patient
(Section 54A)
Part 1 Extension of status as forensic patient
1   Extension orders for forensic patients
(1)  The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person’s status as a forensic patient.
(2)  An order made under this clause is an extension order.
2   Forensic 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 Schedule 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 he or she ceases being a forensic patient, and
(b)  the risk cannot be adequately managed by other less restrictive means (including classification as an involuntary patient under section 53).
(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.
Part 2 Extension orders
Division 1 Application for extension order
3   Minister may apply for extension order
A Minister administering this Act may apply to the Supreme Court for an extension order against a forensic patient.
4   Application 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.
5   Requirements 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 clause 7 (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.
6   Pre-hearing procedures
(1)  An application under this Part 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 such further time as 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 subclauses (7)–(9), the Minister applying for the extension order must disclose to the forensic patient such documents, reports and other information as 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 such further time as the Supreme Court may allow.
(5)  If, following the preliminary hearing, it 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 furnish 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, it 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 subclause (8) of, or other access under that subclause 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 2 Determination of application
7   Determination of application for extension order
(1)  The Supreme Court may determine an application under this Part 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 clause 6 (5) to conduct examinations of the forensic patient,
(c)  the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (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 Director-General of the Ministry of Health, the Commissioner of Corrective Services, the Director-General of the Department of Family and Community Services 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 he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50),
(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.
8   Term of extension order
(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 clause prevents the Supreme Court from making a second or subsequent extension order against the same forensic patient.
9   Continuation of order relating to forensic patient
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 3 Interim extension orders
10   Interim extension order
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.
11   Term of interim extension order
(1)  An interim extension order commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.
(2)  An interim extension order 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 such an order for periods totalling more than 3 months.
Division 4 General
12   Extension 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 47 (2A).
(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.
Part 3 Supreme Court proceedings
13   Nature of proceedings
Proceedings under this Schedule (including proceedings on an appeal under this Schedule) are civil proceedings and, to the extent to which this Schedule does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings.
14   Right of appeal
(1)  An appeal to the Court of Appeal lies from any 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 such 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 clause does not limit any right of appeal that may exist apart from this Schedule.
15   Costs not to be awarded against forensic patient
An order for costs may not be made against a forensic patient in relation to any proceedings under this Schedule (including proceedings on an appeal under this Schedule).
16   Preservation of Supreme Court jurisdiction
Nothing in this Schedule limits the jurisdiction of the Supreme Court apart from this Act.
Part 4 Miscellaneous
17   Minister may require provision of certain information
(1)  A Minister administering this Act may, by order in writing served on any person, require that person to provide to the Minister any document, report or other information in that person’s possession, or under that person’s control, that relates to the behaviour, or physical or mental condition, of any forensic patient who is subject to a limiting term.
(2)  A person who fails to comply with the requirements of an order under this clause 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 that relates to the behaviour, or physical or mental condition, of any forensic patient who is subject to a limiting term.
(4)  Despite any Act or law to the contrary, any document or report of a kind referred to in subclause (1) or (3), or any copy of any such document or report, is admissible in proceedings under this Act.
18   Protection 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 Schedule.
19   Hearings
This Schedule does not affect the right of any party to proceedings under this Schedule:
(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.
20   Bail Act 1978 not to apply
The Bail Act 1978 does not apply to or in respect of a person who is the subject of proceedings under this Schedule.
21   Rules 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 Schedule.
(2)  This clause does not limit the rule-making powers conferred by the Supreme Court Act 1970.
22   Qualification of psychiatrists
For the purposes of this Schedule, 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.
[14]   Schedule 3 Savings and transitional provisions (as renumbered by item [12])
Insert at the end of clause 1A (1):
  
any other Act that amends this Act