Page 3847 - Week 12 - Thursday, 30 October 2014
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The forensic provisions will provide oversight and safeguards for how the treatment, care and support of forensic patients are managed. The scheme will also facilitate appropriate service responses for forensic patients living in the community with support and supervision by relevant services. This is achieved through the establishment of a new suite of forensic mental health orders.
Forensic mental health orders are based on existing psychiatric treatment orders and community care orders currently made by ACAT. The chief psychiatrist is responsible for applying for and supervising forensic psychiatric treatment orders and the care coordinator is responsible for applying for and supervising forensic community care orders. A forensic psychiatric order applies in the context of mental illness where a community care order applies in the context of a mental disorder.
A forensic psychiatric treatment order made in relation to a person may contain one or more of the following conditions: that the person be detained at an approved mental health facility, undergo psychiatric treatment, care or support, other than electroconvulsive therapy or psychiatric surgery, undertakes a counselling, training, therapeutic or rehabilitation program, has limits on communication with other people, must live at a stated place, or must not approach a stated person or stated place or undertake stated activities.
In contrast, a forensic community care order made in relation to a person may contain one or more of the following: that the person be given treatment, care or support, may be given medication for the treatment of the person’s mental disorder that is prescribed by a doctor, is required to undertake a counselling, training, therapeutic or rehabilitation program, has limits on their communication with other people, lives at a stated approved community care facility or be detained at a stated approved community care facility or another stated place, or must not approach a stated person or stated place or undertake stated activities.
Unless revoked sooner, a forensic mental health order remains in force for three months or, if consecutive forensic mental health orders have been in force in relation to a person for one year or more, one year. The ACAT may also review a forensic mental health order in force in relation to a person on its own initiative or if it is a requirement to do so under another provision of the act.
Forensic mental health orders are different from mental health orders in a number of ways. The most distinguishing feature is that the person’s decision-making capacity is not a criterion for the making of a mental health order. This is due to the ACAT having to instead consider whether the person has seriously endangered or is likely to seriously endanger public safety regardless of their decision-making capacity.
The criterion of considering serious endangerment is the second distinguishing feature of forensic mental health orders. Serious endangerment is a matter for the ACAT to determine on the balance of probabilities and is not defined in the bill. This criterion requires the ACAT to take a risk-based approach to the question of serious danger presented to the public by the person.
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