Summary of Key Changes - Mental Health (Forensic Provisions) Act 1990
The commencement of the Mental Health (Forensic Provisions) Act 1990 (MHFPA90) contains a number of changes that will impact on the operation of the Tribunal in relation to forensic patients. These are summarised below.
1. Creation of the Forensic Division
The MHFPA90 replaces the previous system of executive decision making in relation to forensic and correctional patients and instead provides for the Forensic Division of the Mental Health Review Tribunal to become the determinative authority in relation to the:
- detention, care, and treatment of forensic and correctional patients;
- leave or release of forensic patients.
When considering the release of forensic patients, the Forensic Division must be presided over by a current or former holder of judicial office and must have regard to the following issues (in addition to the more general requirements under section 74 as detailed below):
- whether the safety of the patient or any member of the public will not be seriously endangered by the patient’s release;
- whether 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;
- a report by an independent forensic psychiatrist as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person’s release; and
- in the case of forensic patients subject to a limiting term, whether or not the patient has spent sufficient time in custody.
Both the Minister for Health and the Attorney General may appear or make submissions where an application for leave or release is being considered by the Tribunal.
The President of the Tribunal is now also the authority for issuing an apprehension order if it appears to the President that a forensic or correctional patient has breached their conditions of leave or release and requires return to custody. Upon apprehension, the person will be reviewed by the Tribunal which then may confirm the person’s leave or release, or issue any other order in relation to the person’s care, treatment and detention.2. Jurisdiction of Forensic Division
The MHFPA90 revised the category of people subject to review by the Forensic Division of the Tribunal.
Forensic Patients are now only those people detained following a finding of unfitness by the Court, and those either detained or released subject to conditions following a finding of not guilty by reason of mental illness.
Those found unfit to be tried and released by the Court are no longer forensic patients, and are only reviewed by the Tribunal in relation to their fitness to stand trial, although the Tribunal may make recommendations to the Court in relation to their care and treatment.
Correctional Patients are a new category of patient, comprising of those transferred from a correctional centre to a mental health facility (previously referred to as ‘transferees’)
The Tribunal must also conduct limited reviews (that is reviews carried out by at least one member being the President or a Deputy President) of those awaiting transfer from a correctional centre to a mental health facility.
The Tribunal may now also make Forensic Community Treatment Orders, and must review persons subject to these orders and detained in a correctional centre at least once every three months.3. Timing of Reviews
For both forensic and correctional patients, generally the Tribunal must review as soon as practicable following the referral of the person under the relevant provision, and then at least once every six months thereafter.
The Tribunal may extend the period of review up to 12 months if the Tribunal is satisfied that:In addition, however, the Tribunal must conduct a review if requested to do so by the Minister for Health, the Attorney General, the Minister for Justice, the Minister for Juvenile Justice, the Director-General, or the medical superintendent of the mental health facility in which the patient is detained.
- there are reasonable grounds, and
- an earlier review is not required as there has been no change in the person’s condition, and
- there is no apparent need for any change to the existing orders in relation to the patient, and
- an earlier review may be detrimental to the condition of the patient.
4. Information Requirements for Reviews
Section 74 of the MHFPA90 sets out a number of matters that the Tribunal must consider at each review. These include:
- whether the person is suffering from a mental illness or other mental condition;
- 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;
- the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration.
5. Limited Reviews - Those awaiting transfer to hospital
The MHFPA90 continues to require the Tribunal to conduct monthly limited reviews of those patients for whom an order for a transfer to a mental health facility has been made under s55, but who have not been so transferred within the prescribed period (14 days).
When holding these reviews, the Tribunal must now be provided a report as to the person’s condition and reason for the delay in transfer provided by the Director-General and Commissioner of Corrective Services.
6. Forensic Community Treatment Orders
The Tribunal may now make Community Treatment Orders for persons detained in a correctional centre as well as for:
- a forensic patient recommended for conditional release or transfer to a correctional centre or other place;
- a correctional patient ordered to be transferred to a correctional centre;
- a person awaiting transfer from a correctional centre to a mental health facility.
In general terms, Part 3 of Chapter 3 of the Mental Health Act 2007 applies to the making of a community treatment order, with some variations applying as prescribed by the Mental Health (Forensic Provisions) Regulation 2009.
7. Applications for Leave
The Director-General may only grant leave to forensic or correctional patients in emergency or special circumstances.
For forensic patients, leave may be granted by the Tribunal following a review.For correctional patients, leave may be granted by the Commissioner of Corrective Services. The Tribunal may make a recommendation to the Commissioner as to leave following a review.
8. Appeal against Director-General's refusal to give leave
The MHFPA90 now allows for forensic patients to appeal to the Tribunal if an application for leave has been made to the Director-General, and the Director-General has failed or refused to grant the patient a leave of absence. When an appeal is made in accordance with the regulations, the Director-General must provide the Tribunal with a report about the patient, including the Director-General’s reasons for refusing or failing to grant leave. The Tribunal, in considering the appeal, may exercise the function of the Director-General and make an order in respect of the grant of leave.
The Tribunal may also determine that no further right of appeal may be exercised prior to the next six monthly review of the forensic patient.9. Planning for Leave and Release
The MHFPA90 now has provisions relating to the planning of release and leave, which are consistent with sections 68 and 79 of the Mental Health Act 2007. Now, if a forensic patient is to be released or granted leave from a mental health facility, the authorised medical officer must:
- Take all reasonably practicable steps to consult with the patient’s primary carer; and
- Take all reasonably practicable steps to ensure that the patient and the patient’s primary carer are provided with appropriate information as to follow-up care.
In addition, when the forensic patient is to be released, the authorised medical officer must take all reasonably practicable steps to consult with the agency that will be responsible for the patient’s care and treatment, as well as the patient’s primary carer and dependants.
When considering applications for a forensic patient to be granted leave or release from a mental health facility, the Tribunal will therefore have to enquire as to whether the necessary steps have been undertaken by the relevant authorised medical officer.10. Registered Victims
The MHFPA90 recognises the concerns registered victims may hold in relation to the grant of leave or conditional release of forensic patients. The new legislation therefore provides that registered victims may seek the following conditions be placed on leave or conditional release:
- Non association condition; or
- Place restriction condition.
Registered victims will be notified prior to each review whether leave or release is being sought so that they are able to make the application at the same time as the leave or release application is being considered by the Tribunal.
11. Appeals
The MHFPA90 sets out a number of possible of appeals for various participants in the review process.
Forensic Patients may appeal:
- By leave to the Supreme Court on a question of law or any other question in relation to any determination; and
- By leave to the Court of Appeal on a question of law or any other question in relation to a determination as to release.
Correctional Patients may appeal:
- By leave to the Supreme Court on a question of law or any other question in relation to any determination
The Minister for Health may appeal:
- As of right to the Supreme Court on a question of law or any other question in relation to any determination; and
- As of right to the Court of Appeal on a question of law or any other question in relation to a determination as to release.
The Attorney General may appeal:
- As of right to the Court of Appeal on a question of law in relation to a determination as to release.
Registered Victims may appeal:
- By leave to the Supreme Court on a question of law or any other question in relation to a determination by the Tribunal under s76 as to non association or place restriction conditions on leave or release.
12. Relevant Mental Health Act 2007 amendments for Forensic and Correctional Patients
The provisions relating to surgical procedures and special medical procedures have been amended so that forensic and correctional patients are considered to be ‘involuntary patients’ for the purpose of these sections, as is the case for Electo Convulsive Therapy. This amendment resolves a drafting error in the Mental Health Act 2007.
13. Further Information
The Forensic Procedural Note is currently being updated and will be uploaded shortly. In the interim, please contact the Forensic Unit on 9816 5955 for further information.
The NSW Department of Health will also be posting information concerning the MHFPA90 on their website http://www.health.nsw.gov.au .