Key messages

  • A Secure treatment order enables an acutely unwell prisoner (whether sentenced or on remand) to be taken to a designated mental health service for compulsory treatment.
  • A security patient may apply to the Mental Health Tribunal to revoke their Secure treatment order.

The Secretary to the Department of Justice may make a Secure treatment order to transfer an acutely unwell prisoner (whether sentenced or on remand) to a designated mental health service for compulsory treatment.

The Secretary to the Department of Justice may only make a Secure treatment order for a prisoner if satisfied that the criteria for a Secure treatment order apply to the person.

In deciding whether the criteria for a Secure treatment order apply, the Secretary will be informed by a report from a psychiatrist.

Criteria for a Secure treatment order

The criteria for a Secure treatment order are that:

    • the person has mental illness
    • because the person has mental illness, the person needs immediate treatment to prevent serious deterioration in their mental or physical health or to prevent serious harm to the person or another person
    • immediate treatment will be provided if the person is made subject to a Secure treatment order
    • there is no less restrictive means reasonably available to enable the person to receive the treatment.

The Secretary must also receive a report from the authorised psychiatrist for the designated mental health service to which it is proposed that the person be taken. The report must recommend that a Secure treatment order be made and state that there are facilities and services available to detain and treat the person at the designated mental health service.

The Secretary may not make a Secure treatment order for a forensic patient or a person subject to a Court Secure treatment order.

Notification requirements in relation to a Secure treatment order

As soon as practicable after a security patient has been received at a designated mental health service, the authorised psychiatrist must notify the Mental Health Tribunal. The authorised psychiatrist must also ensure that reasonable steps are taken to inform the following persons that the person has been received at the designated mental health service:

  • nominated person
  • guardian
  • carer, if the authorised psychiatrist is satisfied that the receipt of the security patient will directly affect the carer and the care relationship
  • a parent, if the security patient is under the age of 16 years
  • 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.

Security conditions

The authorised psychiatrist may make such security conditions for a security patient as are necessary to protect the health and safety of the patient or the safety of any other person. These conditions apply whether the person is detained in a designated mental health service, absent with leave from a designated mental health service or on monitored leave, or being transported under the Act.

Application to the Tribunal

A security patient who is subject to a Secure treatment order may apply to the Tribunal to revoke the Secure treatment order.

The following persons may apply to the Tribunal to revoke the Secure treatment order on behalf of a security patient:

  • any person, at the security patient’s request
  • guardian
  • parent, if the security patient is under the age of 16 years
  • the Secretary, if the security patient is the subject of a custody to Secretary order or a guardianship to Secretary order.

Tribunal hearing – Secure treatment order

The Mental Health Tribunal must conduct a hearing to determine whether the criteria apply to the security patient within 28 days after the security patient is received at the designated mental health service and at least every 6 months thereafter until the person ceases to be a security patient.

A security patient, or a person on the security patient’s behalf, may apply to the Tribunal to be discharged as a security patient at any time.

If the Tribunal is not satisfied that the criteria for a Secure treatment order apply to the person, the Tribunal must make an order that the person be discharged as a security patient.

Discharge of security patient

The authorised psychiatrist must discharge the person as a security patient if any of the following apply:

  • the Tribunal makes an order that a person be discharged as a security patient
  • if the authorised psychiatrist determines that the criteria for a Court Secure treatment order no longer apply
  • the person ceases to be a security patient.

A person ceases to be a security patient if:

  • the person’s sentence of imprisonment expires
  • the Court Secure treatment order expires
  • the person is granted bail
  • a court releases the person from custody
  • an order has been made that the person be released on parole and the time for release has occurred.

The Secretary to the Department of Justice must notify the authorised psychiatrist as soon as practicable of the date on which a security patient’s sentence of imprisonment or detention is to expire.

A person who is discharged as a security patient ceases to be a security patient on entering the custody of the Secretary to the Department of Justice or if the person has been released on parole. A Secure treatment order is revoked upon the person being discharged as a security patient.

Notification requirements – discharge of security patient

An authorised psychiatrist must notify the Secretary to the Department of Justice of an intention to discharge a person as a security patient if the person is being discharged as a security patient because the criteria no longer apply or if the Tribunal orders that the person be discharged as a security patient. The Secretary to the Department of Justice must make the necessary arrangements to take the person to a prison or other place of confinement as soon as practicable after they are notified of an intention to discharge a person as a security patient.

The authorised psychiatrist must also notify the Tribunal unless the Tribunal ordered that the person be discharged as a security patient.

An authorised psychiatrist who has discharged a person as a security patient must ensure that reasonable steps are taken to notify the person that he or she has been discharged as a security patient and to explain the purpose and effect of the discharge.

The authorised psychiatrist must also ensure that reasonable steps are taken to notify the following persons of the discharge:

  • nominated person
  • guardian
  • carer, if the authorised psychiatrist is satisfied that the discharge will directly affect the carer and the care relationship
  • a parent, if the person is under the age of 16 years;
  • 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.

Direction to take security patient to another designated mental health service

An authorised psychiatrist may direct that a security patient is to be taken to another designated mental health service if:

  • the authorised psychiatrist is satisfied that this is necessary for the security patient’s treatment and
  • the authorised psychiatrist for the designated mental health service which is to provide the treatment to the security patient approves.

In determining whether the security patient is to be taken to another designated mental health service, the authorised psychiatrist 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 receiving treatment at another designated mental health service and the reasons for those views and preferences, including the recovery outcomes the security patient would like to achieve;
  • the views or preferences expressed by the security patient 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 authorised psychiatrist 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 security 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 views of the Secretary to the Department of Justice.

Chief psychiatrist direction

The chief psychiatrist may direct an authorised psychiatrist to arrange for a security patient to be taken to another designated mental health service if the chief psychiatrist is satisfied that this is necessary for the security patient’s treatment.

In determining whether a security patient is to be taken to another designated mental health service, the chief psychiatrist must, to the extent that is reasonable in the circumstances, have regard to:

  • the security patient’s views and preferences about receiving treatment at another designated mental health service and the reasons for those views and preferences, including the recovery outcomes the security patient would like to achieve;
  • the views or preferences expressed by the security patient 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 authorised psychiatrist 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 security 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 views of the Secretary to the Department of Justice.

Role of authorised psychiatrist

As soon as practicable after making or receiving a direction to take a security patient to another designated mental health service, authorised psychiatrist must ensure that reasonable steps are taken:

  • to inform the security patient of the direction
  • to explain the purpose and effect of the direction;
  • to take the security patient to another designated mental health service and to notify the following persons in relation to the security patient of the direction—
    • the nominated person;
    • a guardian;
    • a carer, if the authorised psychiatrist is satisfied that the decision will directly affect the carer and the care relationship;
    • a parent, if the person is under the age of 16 years;
    • 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
  • to take the security patient to the receiving designated mental health service
  • to forward any documents relevant to the treatment of the security patient to the receiving designated mental health service.

As soon as practicable after a security patient is taken to the receiving designated mental health service, the authorised psychiatrist of that designated mental health service must ensure that reasonable steps are taken to notify the Secretary to the Department of Justice that the security patient has been received at that designated mental health service.

Application to Tribunal for review of direction

A security patient who is subject to a direction to be taken to another designated mental health service may apply to the Tribunal for a review of the direction within 20 business days after the direction is made. The following persons may also apply to the Tribunal on the security patient’s behalf:

  • any person, at the request of the security patient
  • a guardian of the security patient
  • a parent of the security patient, if the security patient is under the age of 16 years
  • 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 Tribunal must hear and determine the application as soon as practicable after an application is made.

On hearing an application under this section, the Tribunal must have regard to the following to the extent that is reasonable in the circumstances:

  • the security patient’s views and preferences about receiving treatment at another designated mental health service and the reasons for those views and preferences, including the recovery outcomes the security patient would like to achieve;
  • the views or preferences expressed by the security patient 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 authorised psychiatrist 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 security 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 views of the Secretary to the Department of Justice.

The Tribunal must refuse to grant the application if the Tribunal is satisfied that taking the security patient to another designated mental health service is necessary for the patient’s treatment. The Tribunal must grant the application if the Tribunal is not satisfied that taking the security patient to another designated mental health service is necessary for the patient’s treatment.

If the Tribunal grants the application and the security patient has been taken to another designated mental health service, the Tribunal must direct that the security patient be returned to the original designated mental health service.

If the Tribunal refuses to grant the application, the security patient must be taken to the receiving designated mental health service as directed by the authorised psychiatrist or the chief psychiatrist.