Act
Section Detail
By clicking
on each Act section displayed below, relevant information specific to
that section will be displayed.
The descriptive information is to be used only a guide and should not
be relied upon as a comprehensive discussion of each Act section. Not
all Act sections have been covered.
Mental
Health Act 1986 ("the Act"):
Section
12 - Involuntary treatment orders - persons in the community
Section
12A - Application to continue detention and treatment of involuntary patient
Section
12C - approval granted for continued detention and treatment
Section
13 - admission to a general hospital or emergency department
Section
14 - community treatment order instead of confirming admission to
an approved mental health service or continuing to detain in an approved
mental health service under s12.
Section
15A - restricted community treatment order, only available to a person
to whom a hospital order under s93(1)(d) of the Sentencing Act 1991 applies.
Section
16(3)(a) - transfer from a prison to an approved mental health service
under a hospital order.
Section 93G
- transfer of patients to an interstate mental health facility.
Section
90 - pursuant to an assessment order made by a court
Section
91 - pursuant to a diagnosis, assessment and treatment order made
by a court
Section
93(1)(d) - pursuant to a hospital order made by a court
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Categories of Involuntary
and Security Patients
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INVOLUNTARY PATIENTS
Section 3
of the Mental
Health Act 1986 provides that an "involuntary patient" is
a person admitted to an approved mental health service under-
"(a)
Division 2 of Part 3 (including a person whose detention and treatment
is continued under section 12A(4) or 12C; or
(b) Part 5 (except section 93(1)(e)) of the Sentencing Act 1991; or
(c) Section 16(3)(a); or
(d) Part 5A-
or deemed
to be an involuntary patient under section 13 or 14."
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SECURITY PATIENTS
Following
commencement of the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997 on 18 April 1998, s3 of the Act now provides that "security
patient" means-
"(a)
a person detained in an approved mental health service under s16(3)(b)
of this Act or s93(1)(e) of the Sentencing Act 1991."
Mental Health Act 1986:
Section 16(3)(b)
- transfer from a prison to an approved mental health service under a
restricted hospital order.
The person
is lawfully imprisoned or detained in a prison or other place of confinement
and appears to be mentally ill.
The Secretary
to the Department of Justice may make a restricted hospital order under
which the person is admitted to and detained in an approved mental health
service as a security patient.
Criteria
for becoming a security patient under s16 - s 16(2)(a) and 16(4) - see
earlier page regarding involuntary patients under s16(3)(a).
Sentencing Act 1991:
Section 93(1)(e)
- hospital security order.
The person
has been found guilty of a criminal offence.
The court
may, by way of sentence, make a hospital security order under which the
person is admitted to and detained in an approved mental health service
as a security patient (s93(1)(e)).
Criteria
for becoming a security patient under s93 - s93(1)(b) - see earlier page
regarding involuntary patients under s93(1)(d).
ALL SECURITY PATIENTS
RELEVANT CRITERIA ON APPEAL OR REVIEW
The Board considers the following criteria when hearing an appeal or
review regarding a security patient regardless of whether the person is
detained under the Mental Health Act 1986
or the Sentencing Act 1991.
An anomoly has arisen
as a consequential result of legislative amendments in 2001 in relation
to patients on hospital security orders. They are currently admitted under
the section 93(1)(b) provision, but are discharged under the sectin 16
provisions. It is anticipated that a further legislative amendment will
cure this anomoly.
Criteria
- section 16(2)(a):
(a) the person
appears to be mentally ill and to require immediate treatment for that
illness; and
(b) the treatment can be obtained by admission to and detention in an
approved mental health service; and
(c) because of the person’s mental illness, the person should be
admitted and detained for treatment for his or her health or safety (whether
to prevent a deterioration in the person’s physical or mental condition
or otherwise) or for the protection of members of the public.
and section
16(4):
The Secretary
to the Department of Justice must have regard to the public interest and
all the circumstances of the case including the person’s criminal
record and psychiatric history.
The Board
reviews the continued detention of a security patient, using the above
criteria, within 8 weeks of being admitted as a security patient and thereafter
at intervals not exceeding 12 months (s30(1)(a) and (b)).
Discretion
- section 44
If, having
regard to the criteria specified in s16(2) and 16(4), the Board on hearing
an appeal or review is not satisfied that the continued detention of a
person as a security patient is necessary, the Board may order-
(a) that
the person be discharged as a security patient and returned to a prison;
or
(b) that the person not be discharged as a security patient.
When a person
does not satisfy the criteria for continued detention as a security patient,
there would usually be some positive reason or special circumstances why
the Board would exercise its discretion under s44 not to discharge the
person. For example, the person has been living successfully in the community
on leave from an approved mental health service and to discharge the person
would mean that he or she would be returned to a prison.
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SUMMARY OF CATEGORIES
RELATING TO PERSONS INVOLVED IN THE CRIMINAL JUSTICE SYSTEM
Mental Health Act 1986:
The person
is lawfully imprisoned or detained in a prison or other place of confinement
and appears to be mentally ill.
The Secretary
to the Department of Justice has two choices:
Section 16(3)(a)
- hospital order involuntary patient.
Section 16(3)(b)
- restricted hospital order security patient.
In practice,
the Secretary always opts for the security patient category.
Sentencing
Act 1991:
The person
has been found guilty of an offence.
The court
has four choices:
Section 90
- assessment order involuntary patient.
Section 91
- assessment, diagnosis and treatment order involuntary patient.
Section 93(1)(d)
- hospital order involuntary patient.
Section 93(1)(e)
- hospital security order security patient.
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