MHA2000 Resource Guide Chpt 7 Forensic Order and ... · Chapter 7 | Forensic order and disability forensic order 7-6 attempted murder (Criminal Code, section 306); rape (Criminal

Resource Guide (May 2016)

Chapter 7 | Forensic order and disability forensic order 7-1

CHAPTER 7 - FORENSIC ORDER AND DISABILITY FORENSIC ORDER

1. Introduction ......................................................................... 7-3

1.1 Director of Mental Health resources

2. Making orders ...................................................................... 7-4

2.1 How forensic orders and disability forensic orders are made

Forensic orders and disability forensic orders made by the Mental Health Court

Forensic orders made by another Court or the Minister

2.2 Special notification forensic patients

2.3 Administrator responsibilities

Ensuring forensic patients receive relevant information

Notifications

Flagging ‘special notification forensic patient’ status on clinical files

Forensic patient photographs

3. Treatment or care ................................................................ 7-7

3.1 Treatment plan

Taking pathology specimens

Urine drug screening tests

3.2 Preparing an absent without permission prevention and response plan

3.3 Regular clinical review

3.4 Move and transfer

3.5 Limited community treatment and temporary absence

Limited Community Treatment Review Committee

Child safety issues

Follow-up of patients discharged

3.6 Absence without permission



3.7 Non-compliance with forensic order in a custodial setting

Inpatient treatment is required following assessment

3.8 Involuntary patient summary

4. Mental Health Review Tribunal reviews and decisions .. 7-14

4.1 Review of forensic order and disability forensic order

When review of forensic orders and disability forensic orders are conducted

Parties to forensic order and disability forensic order reviews

Matters determined by the Tribunal on a review

Responsibilities of the authorised doctor

4.2 Review of fitness for trial

Returning patients to Court

4.3 Move out of Queensland

4.4 Forensic information orders

4.5 Non-contact orders

5. Ceasing forensic orders or disability forensic orders .... 7-20



The provisions of the Act summarised below can be read in full in the Mental Health Act 2000, Chapter 7 Part 7 (Forensic patients), Chapter 6 Part 3 (Reviews by Tribunal for forensic patients) and Chapter 6 Part 4 (Reviews by Tribunal to decide fitness for trial).

1. Introduction

The Mental Health Act 2000 (the Act) contains provisions for making a forensic order and disability forensic order. Forensic orders (including disability forensic orders) are usually made by the Mental Health Court, following a finding that the person was of unsound mind or unfit for trial. A person on a forensic order is a forensic patient under the Act. A forensic order authorises the person’s detention in an authorised mental health service and the administration of treatment without consent (see chapter 6 of the Resource Guide). A disability forensic order authorises the person’s detention in an authorised mental health service or the forensic disability service and for care to be provided for their intellectual or cognitive disability.1 The authority to provide care under a disability forensic order rather than involuntary treatment recognises that the particular needs of disability forensic patients differ from the needs of people with mental illness. A person detained to an authorised mental health service (on a disability forensic order) is also a forensic patient under the Act.

1.1 Director of Mental Health resources Director of Mental Health resources of particular relevance to this chapter include:

Appendix 3 - Forensic patient management policy and procedures

Appendix 4 - Policy and practice guidelines for the care of disability forensic patients

Fact sheet 5 – Forensic provisions

Patient information sheet - Information for forensic patients

Patient information sheet - Information for disability forensic patients

1 The forensic disability service is a medium secure facility at Wacol operated by the

Department of Community Safety.



Terms of Reference - Limited Community Treatment Review Committees

2. Making orders

2.1 How forensic orders and disability forensic orders are made Forensic order and disability forensic orders made by the Mental Health Court The Mental Health Court may make a forensic order or a disability forensic order for a person following a finding by the Court that the person:

was of unsound mind in relation to the alleged offence

is permanently unfit for trial. Mental Health Court must consider whether the order should be a forensic order or disability forensic order. A person who the Mental Health Court finds unfit for trial or of unsound mind as a consequence of an intellectual or cognitive disability may be placed on a disability forensic order. If the Mental Health Court considers the basis for the unsoundness or unfitness decision is due to a mental illness, then the Mental Health Court may make a forensic order. A forensic order requires that the person be detained in a specified authorised mental health service. A disability forensic order requires that the person be detained in either the forensic disability service or an authorised mental health service. The primary difference between the types of orders is that a forensic order authorises involuntary treatment for a mental illness while a disability forensic order authorises a person’s detention for care. This is an important distinction from the forensic order which authorises involuntary treatment and/or care. When the Mental Health Court makes a forensic order or disability forensic order, it may also approve limited community treatment. On the making of a forensic order or a disability forensic order the Court Registrar provides the administrator with a forensic order (Mental Health Court) or a forensic order (Mental Health Court–Disability) (including details of any limited community treatment approval). The administrator then provides a Letter - Notice of making of forensic order to patient or Letter - Notice of making of forensic order (MHC-

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disability) to the patient advising them of the decision by the Mental Health Court.

Effect on existing treatment orders If the patient is subject to an involuntary treatment order, the order ceases when the forensic order or disability forensic order is made. If the patient is already subject to a forensic order or disability forensic order, the new order prevails over the existing order with respect to limited community treatment and place of detention (for example, any limited community treatment ordered or approved under the new forensic order or forensic disability order will prevail over any existing conditions). Both orders continue to be effective in relation to the authority to provide treatment or care. It should be noted that a patient subject to a disability forensic order may be placed on an involuntary treatment order, if they require involuntary treatment for a mental illness after a disability forensic order is made. Forensic orders made by another Court or the Minister (s299-309) A forensic order may also be made:

by a Court (i.e. the District or Supreme Court) following a jury determination that a person is not guilty on the grounds of unsound mind or is not fit to be tried, and

by the Minister if a person is detained in correctional custody following the jury determination (i.e. that the person is not guilty on the grounds of unsound mind or is not fit to be tried) and the Minister is satisfied that the person can be safely detained at an authorised mental health service.

The making of a forensic order under these provisions occurs very infrequently. Where issues are raised regarding an accused person’s mental condition, the matter is usually referred to the specialist Mental Health Court for determination. It should be noted that a disability forensic order may only be made by the Mental Health Court.

2.2 Special notification forensic patients (s305A) A ‘special notification forensic patient’ is a forensic patient (i.e. forensic order or disability forensic order patient) who has been found of unsound mind or not fit for trial in relation to particular offences specified under the Act. The offences include:

murder or manslaughter (Criminal Code, section 300);



attempted murder (Criminal Code, section 306);

rape (Criminal Code, section 349);

assault with intent to rape (Criminal Code, section 351); and

dangerous driving (Criminal Code, section 328A(4)) which results in the death of another person.

The purpose of the special notification forensic patient category is to enable a higher level of scrutiny and monitoring of forensic patients charged with the most serious offences. It is not intended to restrict treatment or care decisions (for example, access to limited community treatment) but rather, ensure these decisions involve the systematic application of risk management processes to protect the interests of the patient, victims and the community.

Also see Forensic patient management policy and procedures in Appendix 3.

2.3 Administrator responsibilities Ensuring forensic patients receive relevant information On the making of a forensic order or a disability forensic order, the Mental Health Court Registrar provides the administrator and the patient with a forensic order (Mental Health Court) or a forensic order (Mental Health Court – Disability).

The administrator is not required to notify the patient that the forensic order or the disability forensic order has been made, however the administrator should ensure the patient receives appropriate information and explanation of the forensic order or the disability forensic order. The Information for forensic patients or Information for disability forensic patients documents are intended to facilitate this process. These documents also contain relevant information for special notification forensic patients.

Notifications The administrator must ensure that the patient’s allied person is notified when a forensic order or a disability forensic order has been made by the Mental Health Court. A making of forensic order/disability forensic order form letter is used for this purpose. The patient should be informed of their right to choose an allied person or to change an existing nomination, and be supported in exercising this right. The patient should be provided with the written and verbal

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information about their rights as an involuntary patient, including their right to choose an allied person (see chapter 11 of the Resource Guide).

Flagging ‘special notification forensic patient’ status on clinical files The administrator must ensure that the ‘special notification forensic patient’ status is clearly marked on the patient’s clinical and administrative files. The form and location of the flag may be determined by the administrator. However, the patient’s status must be clearly evident to any person accessing the file.

Forensic patient photographs The administrator is responsible for ensuring that up to date photographs of all forensic patients are maintained. Photographs are maintained to assist police with identification should the patient become absent without permission during the period of the forensic order or the disability forensic order. If a patient considerably changes their appearance, recent photographs should be maintained on file, so that the police have access to the patient’s change in appearance.

The photograph must:

be stored electronically and on the patient’s clinical file; and

be updated at least annually or as changes in the patient’s appearance are noted.

When the photograph is updated, a notation to this effect should be made on the replaced photograph and both should be maintained on file. The Director of Mental Health’s office will enter the forensic order or disability forensic order on the information system, however, the administrator must ensure the information system has been correctly updated and reflect the special notification forensic patient status, where appropriate.

3. Treatment or care This section sets out legislative requirements relating to treatment under a forensic order and care under a disability forensic order. Also see Forensic patient management policy and procedures and Policy and practice guidelines for the care of disability forensic patients in Appendix 3 and 4 respectively.

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3.1 Treatment plan (s124) On the making of a forensic order or a disability forensic order, an authorised doctor must prepare a treatment plan for the patient and discuss the plan with the patient. The doctor must clearly document the plan in the patient’s clinical file. The doctor may use the consumer care review and summary plan contained within the statewide standardised clinical suite of documentation at: http://qheps.health.qld.gov.au/mentalhealth/docs/a_cc_review_sum.pdf The treatment plan must include:

an outline of the proposed treatment, rehabilitation and other services to be provided to the patient;

specific details of treatment including method, frequency, place and person providing the service;

for forensic and special notification forensic patients the treatment plan must include a risk management plan; and

for forensic and special notification forensic patients the treatment plan must include any monitoring condition required by the Director for the purposes of undertaking limited community treatment (for further information, see chapter 9 of the Resource Guide).

In developing a treatment plan; carer, family and other support systems are to be considered in decisions about the provision of services that impact on the role of carers as stated in the Carers (Recognition) Act 2008. In some circumstances, the patient will already have a treatment plan (i.e. the patient was a classified patient, forensic patient or involuntary treatment order patient prior to the forensic order or the disability forensic order being made). The authorised doctor should ensure that the existing treatment plan is amended as necessary. Also note that a risk management plan must be included in the treatment plan for a forensic patient as required under section 124(1)(a) of the Act. In addition, the Act requires that the plan is prepared having regard to any relevant policies and guidelines issued by the Director of Mental Health (the Director) under the Act. The authorised doctor is responsible for ensuring the treatment plan is consistent with the Forensic patient management policy and procedures and Policy and Practice Guidelines for the care of Disability Forensic Patients.

Form

http://qheps.health.qld.gov.au/mentalhealth/docs/a_cc_review_sum.pdf



Taking pathology specimens A forensic order (other than a disability forensic order) provides authority for clinicians to provide treatment. If the treating doctor is of the view that taking a blood sample is necessary to promote and maintain the mental health and wellbeing of a patient under a forensic order, the blood sample may be taken in the absence of consent. If taking blood samples is considered necessary to promote and maintain the patient’s mental health and wellbeing, this requirement should be documented in the patient’s treatment plan. If a forensic patient on a disability forensic order requires a blood sample to be taken, consent should be sought from the patient. If consent is not provided, or able to be given, the treating doctor should refer to the Policy and Practice Guidelines for the care of Disability Forensic Patients in Appendix 4 for alternative consent mechanisms and authority. Urine drug screening tests A forensic patient may be required to comply with urine drug screening as a condition of limited community treatment approved by the Tribunal or the Mental Health Court. The upfront cost of the urine drug screen for these patients is covered by the Medical Benefits Scheme. The Director’s office has negotiated a process for urine drug samples to be taken in the community component of an authorised mental health service to avoid patients incurring a pathology fee when they are transitioning to limited community treatment and may be judged as not entitled to the Medical Benefits Scheme because of their admitted patient status. Where a urine drug sample is taken in the community component of an authorised mental health service, the sample should be transported directly to the nearest Pathology Queensland laboratory, usually located within the associated local public hospital. The urine drug screen sample must be accompanied by two forms:

Urine Drug Screen form

Chain of custody form These forms can be downloaded from http://qheps.health.qld.gov.au/hsq/pathology/testing/home.htm Pathology Queensland will forward the urine drug screen to Forensic and Scientific Services, Department of Health on behalf of the authorised mental health service.

http://qheps.health.qld.gov.au/hsq/pathology/testing/home.htm



Forensic and Scientific Services will conduct the test and provide the results directly to the authorised mental health service.

3.2. Preparing an absent without permission prevention and

response plan

An absent without permission prevention and response plan is mandatory for involuntary inpatients and is recommended for community patients. It must be based on assessment of the patient’s risk of becoming absent without permission or failure to comply with conditions of leave. An absent without permission prevention and response plan outlines clinical strategies to mitigate and manage absence without permission risk and actions to be undertaken by the service if the patient becomes absent without permission. It is intended to supplement clinical judgment at the time of an absence without permission event and must be consistent with the requirements of the Absence Without Permission Checklists. The absent without permission prevention and response plan must be incorporated into care planning and documented in CIMHA and/or the patient’s local service clinical record. The absent without permission prevention and response plan must be reviewed regularly and amended in line with any changes in the patient’s situation or clinical needs and following any unauthorised absence event.

3.3 Regular clinical review

Regular clinical reviews by an authorised psychiatrist of a forensic patient must be undertaken in accordance with the patient’s treatment plan. The administrator must ensure an authorised psychiatrist conducts regular review of the patient as required under the patient’s treatment plan. The authorised psychiatrist must record details of each assessment in the patient’s clinical file.

3.4 Move and transfer Forensic patients may only be transferred to another authorised mental

health service or the forensic disability service on the order of the Director. The Director must also be notified when a forensic patient is moved to another inpatient facility within the service.

Chapter 8 of the Resource Guide provides further information about the moving and transfer of forensic patients.



3.5 Limited community treatment and temporary absence

Limited community treatment for a forensic patient must be approved by:

the Mental Health Court (i.e. at the time the forensic order or the disability forensic order is made or on an appeal against a decision of the Tribunal); or

the Tribunal. An authorised psychiatrist is required to complete a limited community treatment plan for a forensic patient. The type and duration of leave must be authorised and specified on the limited community treatment plan. This authorisation cannot exceed six (6) months. The conditions of limited community treatment and actions for non-compliance must be clear and unambiguous. Verification of limited community treatment plans must be completed by a person approved by the administrator prior to the commencement of limited community treatment. Temporary absence (for example, short-term absence from an authorised mental health service for compassionate purposes) for a forensic patient can only be approved by the Director. The Director may make an order to suspend limited community treatment for an individual forensic patient or class of patients to manage an identified serious risk to the life, health or safety of a person, or serious risk to public safety. An order to suspend limited community treatment for an individual may be made only if the serious risk related directly to that individual. An order to suspend limited community treatment for a class of patients may be made to:

prevent security risks that may relate to more than one patient, or

to address risks associated with the management of a facility.

Chapter 9 of the Resource Guide provides further information about limited community treatment and temporary absence for forensic patients. Limited Community Treatment Review Committee

In February 2002, an analysis of Queensland Forensic Mental Health Services recommended that an internal review process be established to ensure adequate consideration is given to community safety and the proposed limited community treatment plan for the patient’s rehabilitation2.

2 Mullen Chettleburgh Review of Queensland Forensic Health Services (2002)



It was recommended that each authorised mental health service establish a committee to review applications for limited community treatment in relation to forensic patients. In response to this recommendation, the

Limited Community Treatment Review Committee was established.

The Limited Community Treatment Review Committee has no statutory authority under the Act. The Committee is a multidisciplinary team, separate from the patient’s treating team that considers all reports to the Mental Health Review Tribunal (the Tribunal) concerning special notification forensic patients and requests for revocations of forensic patients. The Committee may:

make a recommendation for amendment of a report if information is identified that is contradictory to the documentation provided; and

advise the Clinical Director and/or Executive Officer of the authorised mental health service of any concerns regarding the quality and content of documentation provided by the treating team.

For details on how the Committee operates refer to the Limited Community Treatment Review Committee Terms of Reference on QHEPS at: http://qheps.health.qld.gov.au/mentalhealth/mhadocs/forms/pdf/tor-lctrc-02072014.pdf Child safety issues For all patients on periods of authorised leave, the authorised mental health service is required to identify any children that the patient has care, custody or access to in their place of residence and who may be affected by the patient’s mental illness, or intellectual or cognitive disability. An assessment must be undertaken, including the patient’s parenting abilities, the presence of other adults who may be involved in providing care to the children and the risk of abuse and neglect. All staff should be aware of the mandatory reporting requirements under section 186 and section 197A of the Child Protection Act 1999. Follow-up of patients discharged Mental health service staff must document the patient’s residential address in the clinical file, including temporary addresses. For forensic patients (in particular, where an approval for limited community treatment requires that the patient reside at an address approved by the authorised doctor/psychiatrist), the patient’s residential address and any temporary address approved must also always be documented on the limited community treatment plan. Mental health staff must review the patient face-to-face during the first week after the patient’s discharge. This review may occur by way of a home visit or at the mental health service. In certain circumstances, there

http://qheps.health.qld.gov.au/mentalhealth/mhadocs/forms/pdf/tor-lctrc-02072014.pdf

http://qheps.health.qld.gov.au/mentalhealth/mhadocs/forms/pdf/tor-lctrc-02072014.pdf



may be a need to deviate from this practice (for example, where face-to-face review is not possible due to the person’s residence in a remote location). Where a deviation is necessary, alternative arrangements should be made as far as possible (for example, follow-up through a remote area nurse or telephone contact with the patient). Any deviation from the practice must be approved by the Clinical Director of the service, or in the absence of the Clinical Director, another senior doctor nominated by the administrator.

3.6 Absence without permission Requirements relating to absence without permission are covered in chapter 10 of the Resource Guide.

3.7 Non-compliance with forensic order in a custodial setting

The large majority of patients in custody who are subject to a forensic order will have been residing in the community prior to incarceration. A small minority will have been returned to custody from an inpatient mental health setting.

For the most part, patients who are subject to a forensic order while in custody are able to have their treatment needs met through the relevant Prison Mental Health Service for the duration of their custodial stay. However, when a patient who is subject to a forensic order is non-compliant with their treatment plan in custody, the Prison Mental Health Service treating doctor must, if practicable, talk to the patient about their non-compliance and the consequences of further non-compliance.

The Prison Mental Health Service treating doctor must make a written record of the doctor’s opinion that:

the patient has been non-compliant with their treatment plan;

the steps taken to obtain compliance with the treatment plan have been unsuccessful; and

there is a significant risk of deterioration in the patient’s mental or physical condition because of the non-compliance.

If the patient again fails to comply with the treatment plan, the Prison Mental Health Service treating doctor must:

contact the authorised doctor at the authorised mental health service responsible for the patient’s forensic order to discuss the patient’s failure to comply with the treatment plan; and

notify the Team Leader of the relevant adult or child and youth Prison Mental Health Service of the patient’s non-compliance.

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If it is determined that the patient requires assessment or treatment at an authorised mental health service, the classified provisions should be applied (see chapter 5 of the Resource Guide). In this instance, the following process applies:

the relevant documentation for a classified patient admission must be completed:

o a doctor or authorised mental health practitioner must complete a recommendation for assessment;

o the administrator must complete an agreement for assessment; and

o the custodian at the correctional facility must complete a custodian’s assessment authority.

the patient becomes a classified patient on production of the recommendation for assessment and custodian’s assessment authority to a health service employee; and

on becoming a classified patient, the patient is detained in the authorised mental health service and the administrator assumes legal custody of the classified patient.

3.8 Involuntary patient summary The involuntary patient summary contains current information pertinent to risk assessment and risk management. Its purpose is to ensure information is readily available to front line staff, particularly those who are unfamiliar with the patient. For a forensic patient, an involuntary patient summary is to be completed every three (3) months or more frequently as new information presents (for example, an episode of absence without permission). The form is to be completed in the Consumer Integrated Mental Health Application (CIMHA), with copies placed in the front of the clinical file or alternatively in front of the legal divider of a patient record and also in the administrator’s (i.e. Mental Health Act) file.

4. Mental Health Review Tribunal reviews and decisions Information about the Tribunal and its functions is provided in chapter 2 of the Resource Guide.

Form

Form

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4.1 Review of forensic order and disability forensic order When review of forensic orders and disability forensic orders are conducted The Tribunal must review forensic orders and disability forensic orders:

within six (6) months of the order being made and

at intervals of not more than six (6) months. In addition to routine statutory reviews, the patient (or someone on behalf of the patient) is entitled to apply to the Tribunal for review. The Tribunal may undertake the review in conjunction with a routine (i.e. six (6) monthly) review however, a review on application must be conducted within a reasonable timeframe. The Tribunal may dismiss an application if satisfied the application is frivolous or vexatious.

The Director is also entitled to apply for a review.

Parties to forensic order and disability forensic order reviews Parties to forensic order and disability forensic order reviews (i.e. people entitled to be present at the Tribunal hearing) include:

the patient

the Attorney-General

the Director – if the review is on an application made by the Director.

The role of the Attorney-General at a review of a forensic patient is to represent the public interest. A patient may be represented at a hearing by a lawyer or an agent agreed by the Tribunal.

Note that victims and other persons who are not a party to the Tribunal hearing are entitled to make written submissions (see chapter 13 of the Resource Guide).

Matters determined by the Tribunal on a review On a review of a forensic order or a disability forensic order, the Tribunal must confirm or revoke the order for the patient. The Tribunal may also approve or order limited community treatment for the patient, subject to the conditions it considers appropriate, and amend or revoke a monitoring condition placed upon the patient in relation to limited community treatment.



For forensic orders, in making a decision to confirm/revoke the order or in relation to limited community treatment, the Tribunal must have regard to the criteria under section 203(6):

the patient’s mental state and psychiatry history;

each offence leading to the patient becoming a forensic patient;

the patient’s social circumstances; and

the patient’s response to treatment and willingness to continue treatment.

For disability forensic orders, in making a decision to confirm/revoke the order or in relation to limited community treatment, the Tribunal must have regard to the criteria under section 203(6A):

the patient’s mental state;

the patient’s intellectual disability;

each offence leading to the patient becoming subject to the forensic order;

the patient’s social circumstances;

the patient’s treatment plan; and

the patient’s behaviour in response to that plan, including behaviour that places the patient’s health or safety or the safety of others at risk.

In exceptional circumstances, a forensic patient may be subjected to a disability forensic order for an intellectual or cognitive disability and a forensic order for a mental illness. In these situations, the criteria the Tribunal must have regard to when reviewing the orders is determined by the most recent forensic order. That is, if the patient’s most recent forensic order is a disability forensic order; the Tribunal will review the orders having regard to the matters outlined above. If however, the most recent order is a forensic order the Tribunal will review the orders against criteria more applicable to the patient’s mental illness, as outlined above for forensic orders. The Tribunal’s consideration of risk applies to the reviews of all forensic orders, regardless of the type of order. The Tribunal cannot revoke a forensic order or disability forensic order, approve limited community treatment or revoke a monitoring condition unless it is satisfied that ‘the patient does not represent an unacceptable risk to the safety of the patient or others, having regard to the patient’s mental illness or intellectual or cognitive disability’.



If the patient is a special notification forensic patient, the Tribunal must obtain and consider a report from an independent psychiatrist before revoking the forensic order or disability forensic order. The psychiatrist cannot be a psychiatrist at the patient’s treating health service. Also, the Tribunal cannot revoke a forensic order or disability forensic order if:

the forensic order or the disability forensic order results from a finding of unfitness for trial (temporary) and the charges have not been finalised; or

less than two (2) years has elapsed since the patient moved out of Queensland following a decision of the Tribunal or the Mental Health Court permitting the move.

Additionally, the Tribunal is empowered to order that a patient on a forensic order or disability forensic order be transferred from one authorised mental health service to another (see chapter 8 of the Resource Guide). The Tribunal is also empowered to order the transfer of a patient on a disability forensic order from an authorised mental health service to the forensic disability service. Note that a transfer order issued by the Director is still required to give effect to transfers ordered by the Tribunal (see section 3.3 in this chapter). This applies to transfers from one authorised mental health service to another authorised mental health service and transfers from an authorised mental health service to a forensic disability service.

Responsibilities of the authorised doctor Where a Tribunal hearing is scheduled (either as a routine statutory review or as a result of an application for review) the authorised doctor is required to provide a report to the Tribunal and attend the hearing to provide evidence. The patient’s case manager and/or other clinical staff involved in the patient’s treatment or care may also attend the hearing.

The Tribunal has established a pro forma report as well as timeframes for providing the report to the Tribunal. Further information about Tribunal procedures and requirements can be obtained from the Authorised Mental Health Service Guide available from the Tribunal hearings coordinator (refer to http://www.mhrt.qld.gov.au/ for Tribunal contact details).

Tribunal reviews provide a critical safeguard in the involuntary treatment and care processes. The timely provision of reports and attendance of senior clinicians at Tribunal hearings therefore warrants high priority.

http://www.mhrt.qld.gov.au/



The administrator of the authorised mental health service must ensure the information system is updated to reflect a Tribunal decision on fitness for trial and inform the treating team of the decision.

Administrators are responsible for ensuring service compliance with Tribunal requirements. The Mental Health Review Tribunal Rule (2009) issued by the Governor in Council under section 479 of the Act prescribes the mandatory timeframe for the provision of reports to the Tribunal as being at least seven (7) days prior to the Tribunal hearing. While the Rule itself does not provide for measures to address non-compliance with the timeframe, the Tribunal has the discretionary power under the Act to address non-compliance through issuing attendance notices. The authorised doctor is also responsible for ensuring that any necessary changes to the patient’s treatment plan are made to reflect the Tribunal’s decision on a review (for example, changes to the treatment plan relating to limited community treatment). The administrator must ensure the information system is updated to reflect the decision of the Mental Health Review Tribunal and inform the treating team of the decision.

4.2 Review of fitness for trial If a forensic order or disability forensic order is made as a result of a Mental Health Court finding of unfitness for trial (temporary), the patient’s fitness for trial is reviewed by the Tribunal at regular intervals. The Tribunal must review the patient’s fitness for trial every three (3) months for a period of 12 months from the Mental Health Court decision and thereafter at six (6) monthly intervals. If the patient remains unfit for trial after the 12 month review, or on any subsequent six (6) month review, the Attorney-General may determine that the proceedings be discontinued. If the patient is found fit for trial on a Tribunal review, the proceedings are continued and the patient must be returned to Court within 7 days (see ‘Returning patients to Court’ below). For offences carrying a maximum penalty of life imprisonment, the proceedings are automatically discontinued if the patient remains unfit for trial after seven (7) years. For any other offence, proceedings are discontinued if the patient remains unfit after three (3) years.

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Returning patients to Court If the Tribunal finds that a patient is fit for trial on a review, the proceedings are continued and the patient must be returned to Court within seven (7) days. The forensic order or disability forensic order ceases when the patient is returned to Court. Note that the patient must appear in Court for the forensic order or disability forensic order to end. Service staff should consult with the patient’s legal representative and the relevant Court to ensure this occurs. In addition, the administrator must notify the Director’s office once the patient has appeared in Court. The Director’s office will update the patient’s status on the information system accordingly.

4.3 Move out of Queensland The Tribunal may approve that a forensic patient move out of Queensland. The Tribunal may only approve the patient’s move if the Tribunal if satisfied that appropriate arrangements exist for the treatment or care of the patient at the place where the patient is to move. An application for patient to move out of Queensland may be made by:

an involuntary patient;

another person on the patient’s behalf;

the administrator of the treating health service; or

the Director. The Tribunal may also impose any reasonable conditions on the approval that the Tribunal considers appropriate. The Tribunal cannot approve a move out of Queensland for a forensic patient who has been found unfit for trial and for whom the charges have not yet been discontinued. The forensic order or disability forensic order remains in force until it is revoked by the Tribunal. The authority to detain the patient and administer involuntary treatment or provide care under the order is only effective in Queensland (i.e. it does not apply in another State). The administrator delegate must ensure the information system/register is updated to reflect the details of the movement out of Queensland.

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4.4 Forensic information orders The Act makes provision for victims and other persons to apply to the Tribunal for a forensic information order. The forensic information order entitles the person to receive specified information about the forensic patient (for example, information about Tribunal hearings and decisions on review of a forensic order or disability forensic order transfer decisions, the patient’s absence without permission). For further information about forensic information orders, see chapter 13 in the Resource Guide.

4.5 Non-contact orders If the Tribunal revokes a forensic order or disability forensic order, it may make a non-contact order. A non-contact order may prohibit:

contact with the victim of an alleged offence, someone who was with the victim at the time of the alleged offence or, if the victim is deceased, a relative of the victim; and

going to a particular place or within a specified distance of a particular place.

A non-contact order is valid for up to two (2) years after it is made. The order may be varied or revoked by a Magistrates Court.

5. Ceasing forensic orders or disability forensic orders A forensic order or disability forensic order may be revoked by:

the Tribunal; or

the Mental Health Court on an appeal against a Tribunal decision. See section 4.1 in this chapter for further information about the requirements for revoking a forensic order or disability forensic order. In addition, a forensic order or disability forensic order ends when the patient is returned to Court following a finding that the patient is fit for trial (see section 4.2 in this chapter).

The administrator must ensure the information system is updated to reflect the cessation of the forensic order or disability forensic order and inform the treating team.

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MHA2000 Resource Guide Chpt 7 Forensic Order and ... · Chapter 7 | Forensic order and disability forensic order 7-6 attempted murder (Criminal Code, section 306); rape (Criminal

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