Key messages

  • An authorised psychiatrist may a grant leave of absence to a compulsory patient or security patient to receive treatment or medical treatment or for any other approved purpose.
  • An authorised psychiatrist may place conditions on leave or vary the conditions or duration of leave
  • A patient is absent without leave if they are absent from a designated mental health service without a grant of leave of absence.

Leave of absence may be granted to an inpatient to receive treatment or medical treatment or for any other approved purpose. A patient is absent without leave if they are absent from a designated mental health service without a grant of leave of absence.

Leave of absence – compulsory and security patients

An authorised psychiatrist may grant a compulsory patient subject to an order with an inpatient setting or security patient a leave of absence to receive treatment or medical treatment or for any other purpose the authorised psychiatrist considers appropriate.

The authorised psychiatrist may grant a leave of absence to a compulsory patient for any period and subject to any conditions that he or she is satisfied are necessary or vary the conditions or duration of the leave of absence:

  • having regard to the purpose of the leave, and
  • if satisfied on the evidence available that the health and safety of the person or the safety of any other person will not be seriously endangered as a result.

A security patient may receive leave for up to 7 days to receive treatment or medical treatment, or up to 24 hours for any other purpose. The authorised psychiatrist must advise the Secretary to the Department of Justice before granting leave to a security patient.

In determining whether to grant a leave of absence or make or vary conditions or the duration of leave, the authorised psychiatrist must have regard to all of the following to the extent that is reasonable in the circumstances:

  • the person’s views and preferences about the leave of absence and the reasons for those views and preferences, including the recovery outcomes that the person would like to achieve
  • the views and preferences of the person expressed in his or her advance statement
  • the views of the person’s nominated person
  • the views of a guardian of the person
  • the views of the person’s carer, if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship
  • the views of a parent of the person if the person is under the age of 16 years
  • the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order
  • the Secretary to the Department of Justice (for security patients).

Review of decision not to grant leave of absence

A security patient may apply to the Mental Health Tribunal for review of an authorised psychiatrist’s decision to refuse leave. The Tribunal must hear and determine an application as soon as practicable and have regard to the following:

  • the security patient’s views and preferences about the leave and the reasons for those views and preferences, including any recovery outcomes the security patient would like to achieve and including any views and preferences expressed in an advance statement
  • the views of the nominated person
  • the views of a guardian
  • the views of a carer if the Tribunal is satisfied the decision will directly affect the carer and the care relationship
  • the views of a parent of a security patient if the security patient is under the age of 16
  • the views of the Secretary to the Department of Human Services if the security patient is the subject of a custody to Secretary or guardianship to Secretary order.

If the Tribunal is satisfied that the health and safety of the security patient or safety of any other person will not be seriously endangered as a result of granting the leave of absence, the Tribunal must grant the application and direct the authorised psychiatrist to grant leave subject to specified conditions.

Revocation of a leave of absence

The authorised psychiatrist may revoke a leave of absence to a compulsory or security patient in writing if necessary to prevent serious deterioration to the person’s physical or mental health or serious harm to the person or to another person.

Leave may also be revoked if the person has not complied with a condition of the leave, or if the purpose for the leave being granted no longer exists.

Notifications

As soon as practicable after the authorised psychiatrist grants a leave of absence or varies or revokes a leave of absence, the authorised psychiatrist must ensure that reasonable steps are taken to inform the person of the decision and to explain its purpose and effect.

The following persons must also be informed:

  • nominated person
  • guardian
  • carer if the decision will affect the carer and the care relationship
  • parent if the person is aged under 16
  • Secretary to the Department of Human Services if the person is the subject of a custody to Secretary Order or guardianship to Secretary Order
  • Secretary to the Department of Justice (for security patients).

Monitored leave – security patients

The Secretary to the Department of Justice (Secretary) may grant monitored leave to a security patient for a number of purposes, including:

  • to rehabilitate or re-integrate the security patient
  • to maintain or re-establish the security patient’s family or other supportive relationships
  • to prepare the security patient for release.

The Secretary may set conditions and vary the duration of the leave having regard to the purpose of the leave and if satisfied that the health and safety of the person or safety of any other person will not be seriously endangered as a result.

The Secretary may grant monitored leave for up to 6 months if satisfied that the health and safety of the person or safety of any other person will not be seriously endangered as a result.

An authorised psychiatrist must provide the Secretary with an applicant profile and a leave plan if satisfied that the monitored leave should be granted. If the authorised psychiatrist is not satisfied that leave should be granted, they must provide the Secretary with an applicant profile, a written statement saying why they think leave should not be granted and any information requested by the Secretary.

An applicant profile must include information concerning:

  • the security patient’s mental illness
  • the relationship between the security patient’s mental illness and their offending behaviour
  • the security patient’s clinical history and social circumstances
  • the security patient’s current mental state.

A leave plan must include information concerning:

  • the purpose of the proposed monitored leave
  • any proposed monitored leave conditions
  • any other information the authorised psychiatrist considers relevant
  • any other information requested by the Secretary to the Department of Justice.

In making a decision to grant or vary monitored leave, the Secretary must have regard to all of the following to the extent that is reasonable in the circumstances:

  • the security patient’s views and preferences about the leave and the reasons for those views and preferences, including any recovery outcomes that the patient would like to achieve
  • the views and preferences of the security patient expressed in his or her advance statement
  • the views of the security patient’s nominated person
  • the views of a guardian of the security patient
  • the views of the security patient’s carer, if the Secretary is satisfied that the decision will directly affect the carer and the care relationship
  • the views of a parent of the security patient, if the patient is under the age of 16 years
  • the views of the Secretary to the Department of Human Services, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order
  • the security patient’s applicant profile and leave plan.

Monitored leave - revocation

The Secretary may revoke a leave of absence for monitored leave in writing if necessary to prevent serious deterioration to the person’s physical or mental health or serious harm to the person or to another person.

The leave may also be revoked if the person has not complied with a condition of the leave, or if the purpose for the leave being granted no longer exists.

The Secretary must notify the authorised psychiatrist of a decision to grant, vary or revoke monitored leave.
The authorised psychiatrist must inform the security patient of a decision to vary or revoke a leave of absence. The following persons must also be informed:

  • nominated person
  • guardian
  • carer if the decision will affect the carer and the care relationship
  • parent if the person is aged under 16
  • Secretary to the Department of Human Services if the person is the subject of a custody to Secretary Order or guardianship to Secretary Order
  • Secretary to the Department of Justice (for security patients).

Absent without leave

A compulsory inpatient, forensic patient or security patient is absent without leave if they are absent from a designated mental health service without a grant of leave of absence. The authorised psychiatrist may arrange for a person who is absent without leave to be apprehended by an authorised person and taken to a designated mental health service.

If a compulsory inpatient, forensic patient or security patient is absent without leave the authorised psychiatrist must take reasonable steps to notify the following persons of the person’s absence:

  • the nominated person
  • a guardian
  • a carer, if the authorised psychiatrist is satisfied that the person’s absence will directly affect the carer and the care relationship
  • a parent, if the person is under the age of 16
  • the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order.

Warrant to arrest security patient absent without leave who leaves Victoria

The authorised psychiatrist, chief psychiatrist, Secretary to the Department of Health or Secretary to the Department of Justice may apply to the Supreme, County or Magistrates’ Court for a warrant to arrest a security patient if it appears that the security patient:

  • is absent without leave from a designated mental health service
  • is no longer in Victoria.

Leave – forensic patients

A forensic patient may apply for and be granted leave of absence in accordance with Part 7 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

A forensic patient is subject to such security conditions as the authorised psychiatrist is satisfied are necessary to protect the health and safety of the forensic patient or the safety of any other person. This includes while a forensic patient is absent on leave from a designated mental health service.