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Chief Psychiatrist's Guidelines Index <
Sentencing and Mental Health Acts (Amendment) Act 2005. Summary
of key amendments (October 2006)
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Key message
Major changes have been made to provisions in the Sentencing Act 1991
and the Mental Health Act 1986 concerning hospital orders, hospital
security orders and restricted community treatment orders.
Mental health service management should ensure that relevant staff are
familiar with the changes and that local policies and procedures are reviewed
and revised as necessary.
Purpose
To provide a summary of key amendments to the Sentencing Act 1991
and the Mental Health Act 1986 that came into effect on 1 October
2006.
Background and scope
The Sentencing and Mental Health Acts (Amendment) Act 2005 (‘the
SMHA Act’) came into effect on 1 October 2006.
The SMHA Act makes significant changes to provisions in the Sentencing
Act and the Mental Health Act that govern hospital orders, hospital security
orders and restricted community treatment orders.
This guideline describes the legislative regime applying from 1 October
2006. Where it refers to previous arrangements, it means the law before
1 October 2006.
Restricted involuntary treatment orders
Introduction and background
- Up until 1 October 2006, if a person with mental illness was found
guilty of an offence, the court had the option to make a hospital order
under s. 93(1)(d) of the Sentencing Act, instead of giving the person
a sentence. The person was then admitted under the hospital order to
an approved mental health service as an involuntary patient and given
treatment for their mental illness.
- From 1 October 2006, hospital orders are replaced with a new order
known as a restricted involuntary treatment order (RITO).
- Special transitional arrangements apply to existing patients who
were subject to hospital orders on 30 September 2006. It should be
noted that their hospital order has not been converted to a RITO.
Refer to ‘Transitional provisions’ below
for more information.
Making an order
- RITOs are made under an amended s. 93 of the Sentencing Act.
- RITOs cannot be made if a person is guilty of a ‘serious offence’
as defined, in s.3 of the Sentencing Act.
- Previously there was no restriction on the nature of the offence
for which a person could be given a hospital order.
- Before making a RITO, a court must be satisfied that all the criteria
in s. 93 of the Sentencing Act (‘the s. 93 criteria’) apply
to the person, that is:
- the person appears to be mentally ill; and
- the person’s mental illness requires treatment and that treatment
can be obtained by the person being subject to a RITO; and
- because of the person’s mental illness, involuntary treatment
of the person is necessary for their 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.
- The court must also receive a report from the authorised psychiatrist
of the relevant approved mental health service, recommending that the
RITO be made and stating that there are facilities or services available
to treat the person’s illness.(1)
- The court is required to consider the person’s current mental
condition, their medical, psychiatric and forensic history and their
social circumstances, before making a RITO.
Duration
- RITOs can be made for terms of up to two years.
- Previously, hospital orders had an indefinite duration.
- If a person on a RITO requires continuing involuntary treatment after
their order expires, the usual procedures for initiating involuntary
treatment under the Mental Health Act apply.
- The Chief Psychiatrist or the Mental Health Review Board (at an appeal
or review) can discharge a person from their RITO before the end of
the term, if the s. 93 criteria no longer apply to the person.
Treatment setting
- Once a RITO is made, the person will be taken to the relevant approved
mental health service. The authorised psychiatrist has the option to
either admit the person as an involuntary inpatient or make a restricted
community treatment order without admitting the person to the approved
mental health service (see details below about making restricted community
treatment orders).
- Previously, when a person was placed on a hospital order, the
person had to be admitted to an approved mental health service.
Treatment
- A person on a RITO is an involuntary patient under the Mental Health
Act and must be given treatment for their mental illness.
- If the person refuses to consent to necessary treatment or is unable
to consent to treatment for their illness, the authorised psychiatrist
may consent on their behalf in writing.
- The authorised psychiatrist must prepare, review on a regular basis,
and revise as required, a treatment plan for the person.
Review by Mental Health Review Board
- The Mental Health Review Board must review a RITO within eight weeks
of it being made and then at least annually.
Discharge
- The power to discharge a person from their RITO is limited to the
Chief Psychiatrist or the Mental Health Review Board (at an appeal or
review).
- This power is unchanged. Previously, only the Chief Psychiatrist
or the board could discharge people on hospital orders.
- The Chief Psychiatrist or the board must have primary regard to the
person’s current mental condition and consider their medical, psychiatric
and forensic history and their social circumstances in deciding whether
to discharge a person from their RITO.
Restricted community treatment orders
Introduction
A person on a RITO can be placed on a restricted community treatment order
(RCTO), permitting them to live in the community while receiving the treatment
they need for their mental illness.
Making an order
- The authorised psychiatrist or the Chief Psychiatrist can make a
RCTO.
- Previously, only the Chief Psychiatrist could make a RCTO and the
Mental Health Review Board had to approve it before it took effect.
- A RCTO may be made at any time if the s. 93 criteria apply to the
person and the treatment the person needs can be obtained through making
a RCTO.
- The authorised psychiatrist must notify the Chief Psychiatrist in
writing if he or she makes a RCTO.
- The Mental Health Review Board (at an appeal or review) can direct
the authorised psychiatrist to make a RCTO. The board might make this
order if it decides that the treatment the person needs can be obtained
in the community through making a RCTO. The board must specify a reasonable
period of time in which the authorised psychiatrist must make the RCTO.
The authorised psychiatrist may apply to the board during this period
to reconsider its decision if circumstances change.
Duration
- Unlike a community treatment order, the psychiatrist making a RCTO
does not decide the length of the order. The Mental Health Act specifies
that a RCTO will continue for as long as the person remains on a RITO
(until it expires or is discharged) or until the RCTO is revoked or
discharged.
- A RCTO will, therefore, never need to be extended and there will be
no risk of it expiring inadvertently.
- Previously, a RCTO could only be made for up to 12 months.
Revocation
- The authorised psychiatrist, Chief Psychiatrist or Mental Health
Review Board (at an appeal or review) can revoke a RCTO. The grounds
for revocation mirror the grounds for revoking a community treatment
order.
- Previously, only the Chief Psychiatrist or the board could revoke
a RCTO.
Variation of conditions
- The authorised psychiatrist, Chief Psychiatrist or the Mental Health
Review Board (at an appeal or review) can vary the conditions of a RCTO.
- Previously, only the Chief Psychiatrist could vary the conditions
of a RCTO.
Discharge
- Discharge from a RCTO is limited to the Chief Psychiatrist or the
Mental Health Review Board (at an appeal or review).
- Discharge from a RCTO means the person is also discharged from their
RITO.
- This power is unchanged. Previously, only the Chief Psychiatrist
or the board could discharge people on hospital orders.
- The Chief Psychiatrist or the board must have primary regard to the
person’s current mental condition and consider their medical, psychiatric
and forensic history and their social circumstances in deciding whether
to discharge a person from their RCTO.
Reporting and monitoring
- The supervising medical practitioner must submit a report about the
person’s treatment to the monitoring psychiatrist at the intervals
set out in the treatment plan.
- Previously, the monitoring psychiatrist provided these reports to
the Chief Psychiatrist.
- The monitoring psychiatrist must assess the person at regular intervals
and notify the Chief Psychiatrist if the s. 93 criteria no longer apply
to the person. The Chief Psychiatrist must then examine the person as
soon as practicable.
Review by the Mental Health Review Board
- The Mental Health Review Board must review a RCTO 12 months after
it is made.
- Previously, the board reviewed the extension of a RCTO. However,
as discussed, RCTOs will no longer have a fixed term and therefore
do not need to be extended.
- The board will not review the making of a RCTO.
- Previously, the board had to approve a RCTO before it could come
into effect.
Effect while in custody
- A RCTO goes into abeyance if the person is detained in a prison.
It will revive upon the person’s release from prison, unless the
RITO has expired.
- If a person subject to a RCTO is detained in prison and transferred
from prison to an approved mental health service under s. 16 of the
Mental Health Act, the RCTO automatically ends but the RITO survives
(although it has no effect while the person is in hospital under s.
16). This is in contrast to community treatment orders, where a person’s
involuntary treatment order and community treatment order are both discharged
on the making of a s. 16 order.
Transitional provisions
Background and context
- Transitional provisions in the SMHA Act mean that people on hospital
orders on 30 September 2006 (the day immediately before the commencement
day of 1 October 2006) will remain on the hospital order. Their order
will not be converted to a RITO.
- Similarly, people on a RCTO on 30 September 2006 will also remain
on that order and their hospital order.
Duration
- All existing hospital orders have been given a duration of two years,
which means these orders will automatically expire on 1 October 2008.
Many people on hospital orders have been on these orders for many years.
The purpose of the two-year transition period is to enable the authorised
psychiatrist and the treating team, in consultation with the Chief Psychiatrist,
to work with and prepare the person for the day when their order expires
on 1 October 2008.
- Previously, hospital orders had an indefinite duration.
- If a person on a hospital order requires continuing involuntary treatment
after their order expires, the usual procedures for initiating involuntary
treatment under the Mental Health Act apply.
- If a person was on a RCTO on 30 September 2006, the duration of their
RCTO has not changed. The Chief Psychiatrist will continue to extend
these RCTOs, if appropriate.
Discharge
- Discharge from a hospital order or RCTO will continue to be limited
to the Chief Psychiatrist or the Mental Health Review Board (at an appeal
or review).
Other transitional arrangements
- Existing laws will continue to apply to people on hospital orders
during the two-year transition period. This means the Chief Psychiatrist
will continue to make, vary, extend and revoke RCTOs.
- Old procedures, forms and patients’ rights booklets will continue
to be used and old legal codes, business rules and functions in the
Client Management Interface (CMI/ODS - the Victorian public mental health
client information management system) will apply to this group for the
two-year period.
- These transition arrangements only apply to existing hospital order
patients. The new laws, policies and procedures apply to any RITO made
from 1 October 2006.
Hospital security orders
Introduction and background
- Before 1 October 2006, if a person with mental illness was found guilty
of an offence, the court could make a hospital security order under
s. 93(1)(e) of the Sentencing Act, by way of a sentence. The court set
a term for the hospital security order, which did not exceed the period
of imprisonment that the person would otherwise have been given. The
court would also set a non-parole period. The person was then admitted
and detained in an approved mental health service as a security patient
and given treatment for their mental illness.
- From 1 October 2006, hospital security orders retain the same name
but are now made under new s. 93A of the Sentencing Act.
- Section 93(1)(e) was repealed on 1 October 2006.
Making an order
- There is no restriction on the type of offence for which a person
can be given a hospital security order. In the past, however, the courts
have limited these orders to more serious offences.
- Before making a hospital security order, a court must be satisfied
that all the criteria in s. 93A(1)(a) of the Sentencing Act (‘the
s. 93A criteria’) apply to the person, that is:
- the person appears to be mentally ill; and
- the person’s mental illness requires treatment and that treatment
can be obtained by the person being subject to a hospital security
order; and
- because of the person’s mental illness, the detention and
treatment of the person in an approved mental health service is necessary
for their 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.
- The court must also receive a report from the authorised psychiatrist
of the relevant approved mental health service recommending that the
hospital security order be made and stating that there are facilities
or services available to treat the person’s illness.
Discharge criteria
- The Chief Psychiatrist or the Mental Health Review Board (at an appeal
or review) may order that a person on a hospital security order be discharged
as a security patient and sent to prison to serve the rest of their
sentence.
- In making this decision, the Chief Psychiatrist or the board must
consider whether the new s. 93A criteria still apply to the person and
whether the continued detention of the person in an approved mental
health service as a security patient is necessary.
- The new s. 93A criteria differ from the previous discharge criteria
in that they require the Chief Psychiatrist or the board to decide whether
the person’s mental illness requires ‘treatment’.
- Previously the Chief Psychiatrist or the board had to decide whether
the person’s illness needs ‘immediate treatment’. The
purpose of this change is to clarify that hospital security orders
are intended to enable longer-term treatment and rehabilitation at
an approved mental health service, not just ‘immediate’
treatment.
Effect of return to prison and subsequent readmission
- A person subject to a hospital security order who is sent to prison
and later requires readmission to an approved mental health service
during the period of their hospital security order, will now be readmitted
as a hospital security order patient. This is achieved by the creation
of a new order under s. 16A of the Mental Health Act.
- Previously, such people were readmitted under s. 16(3)(b) of the
Mental Health Act and effectively lost their hospital security order
status.
Parole
- The Parole Board will be able to grant parole to eligible hospital
security order patients while they are still detained in an approved
mental health service.
- Previously, the person had to be returned to prison before the
Parole Board had jurisdiction.
- A grant of parole will only take effect if, and when, the Chief Psychiatrist
or the Mental Health Review Board discharges the person as a security
patient. The person is then released into the community on parole.
Transitional provisions
- Section 150(2) of the Mental Health Act provides transitional provisions
for hospital security order patients. Any person detained in an approved
mental health service on 1 October 2006 under a s. 16(3)(a) or (b) order
of the Mental Health Act, and who before that order was serving a sentence
of imprisonment which was originally made
as a hospital security order, is reclassified from the s. 16(3)(a) or
(b) order to a hospital security order.
Further information
For further information about the amendments, ROTOs, hospital orders,
RCTOs or hospital security orders, contact the Chief Psychiatrist on 9096
7571 or 1300 767 299 (toll free).
Information is also available on the Department of
Human Service’s website
Electronic copies of the Sentencing and Mental Health Acts (Amendment)
Act, the Sentencing Act and the Mental Health Act can be viewed or downloaded
from the legislation
and parliamentary documents website (External site)
The law as it was before the 1 October 2006 amendments can also be accessed
on that site, by searching ‘Victoria Law Today’ and selecting
the appropriate ‘version history’ of the Mental Health Act (version
85) and the Sentencing Act (version 93).
About Chief Psychiatrist's Guidelines
The information provided in this guideline is intended as general information
and not as legal advice.
Mental health service management should ensure that relevant staff are
familiar with the amendments and their changed responsibilities concerning
people subject to RITOs, hospital orders, RCTOs and hospital security
orders. Service providers should ensure that local policies and procedures
are reviewed and revised as necessary to incorporate the changes.
If mental health staff have queries about individual cases or their obligations
under the Mental Health Act, service providers should obtain independent
legal advice.
1 The Chief Psychiatrist’s guideline, Restricted
involuntary treatment orders and restricted community treatment orders,
October 2006, outlines some of the matters the authorised psychiatrist
should consider when deciding whether or not to recommend that a RITO
be made.
Associate Professor Amgad Tanaghow
Chief Psychiatrist |
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