When a person pleads guilty or is found guilty of an offence in Victoria and the person suffers from a mental illness, one of the sentencing options available to the court is a Court Secure Treatment Order. A Court Secure Treatment Order is made when the circumstances are such that if the person did not have a mental illness, they would be sentenced to imprisonment. Court Secure Treatment Orders are governed by Part 5 of the Sentencing Act 1991.
When is a Secure Treatment Order made?
If an offender has been assessed by a psychiatrist and requires treatment to prevent their serious deterioration or to prevent serious harm to themselves or to another person and there is no less restrictive way of ensuring the person receives this treatment, the court may make a Court Secure Treatment Order.
What happens when you are sentenced to a Court Secure Treatment Order?
When a person is sentenced to a Court Secure Treatment Order, they are required to start serving their sentence in a designated mental health service and to be given compulsory treatment. The duration of a Court Secure Treatment Order must not exceed the length of time the person would have been ordered to serve in prison. The court must fix a non-parole period for the order and if the person no longer requires mental health treatment prior to that date, they will be transferred to a prison to complete their sentence.
A psychiatrist will talk to the patient about what sort of treatment they want to receive. Their informed consent will be obtained if they are able and willing to give it. To give informed consent, patient must be able to understand the information being given, remember the information and use or weigh up the information and communicate a decision about treatment.
If the patient is unable or unwilling to give informed consent, a psychiatrist will make a decision about their treatment. The psychiatrist will look at the patient’s advance care directive if they have one. The psychiatrist will also listen to what other people, such as the patient’s guardian, nominated person or carer, think about the patient’s treatment.
If the psychiatrist decides the patient does not require compulsory treatment, the patient will be discharged and transferred to a prison to complete their sentence. If the psychiatrist decides that the person should receive compulsory treatment and the patient does not agree, the patient can apply to the Mental Health Tribunal to stop being a compulsory patient and be transferred to prison.
The Mental Health Tribunal
The Mental Health Tribunal is an independent organisation made up of lawyers, psychiatrists, doctors and other members of the community. If a patient applies to the Tribunal to be discharged as a security patient, the Tribunal will hold a hearing to decide whether compulsory treatment is necessary. It will hear what the patient and other people involved with the patient have to say about treatment. The hearing will be held at the hospital where the patient is being held. The patient has the right to participate in the hearing and to be supported by anyone they choose.
If the Tribunal decides that compulsory treatment is not necessary, the patient will be discharged to a prison to serve the rest of their sentence. If the Tribunal decides that compulsory treatment is needed, the patient will remain a security patient in the hospital. If the Tribunal orders that a person be discharged as a security patient, the psychiatrist must discharge the person.
The patient may ask the Tribunal for written reasons for its decision.
Leave from hospital
A security patient can ask for leave from hospital for a short time. This may be to receive treatment elsewhere or to visit family or friends or for some other reason. The psychiatrist will make the final decision about the request for leave.
A patient may ask for monitored leave from hospital to help them prepare for their release into the community. Monitored leave can be sought for rehabilitation, maintaining relationships and reintegration into the community. A patient wanting to apply for monitored leave should talk to their psychiatrist and treating team. The application can be made by the psychiatrist, by the patient or by another person at the patient’s request. The Secretary to the Department of Justice will make the decision on a request for monitored leave.
While a person is a security patient they may be made subject to such security conditions as the treating psychiatrist thinks are necessary to protect their health or safety or the safety of other people. This may include ‘restrictive interventions’ such as bodily restraint – where a person is stopped from moving around or Seclusion – where a person is kept alone in a room. Restrictive interventions are only used where there is an urgent need to protect the patient or other people from immanent harm.
If restrictive interventions are used, the psychiatrist must tell the patient’s nominated person, carer or guardian. A doctor or nurse must check on a patient who is subject to restrictive interventions every 15 minuter and must examine them every four hours. Patients being restrained must also be watched at all times to ensure they are alright.
If a security patient is unhappy with the treatment they have received in hospital, they can make a complaint to their treating team at the hospital or to the Mental Health Complaints Commissioner.
If you require legal assistance in relation to any matter please contact Go To Court Lawyers.