queensland parliamentary library · 2007. 10. 26. · brendan butler am sc in the final report of...

Queensland Parliamentary Library

Implementing Further Recommendations of the Review of the Mental Health Act 2000 (Qld): the Mental Health and Other Legislation Amendment Bill 2007 (Qld) On 11 October 2007, the Hon S Robertson MP, Minister for Health, introduced the Mental Health and Other Legislation Amendment Bill 2007 (Qld) (‘Bill’) into the Queensland Legislative Assembly.

The Bill seeks to implement the remaining 29 legislative recommendations made in the final report of Mr Brendan Butler AM SC on the review of the Mental Health Act 2000 (Qld) (‘Act’), Promoting Balance in the Forensic Mental Health System.

A key feature of the proposed amendments is the introduction of ‘classified patient information orders’ and ‘forensic patient information orders’ which will allow certain limited information about patients under the Act to be provided to victims and other approved persons. The Bill also seeks to enhance risk management processes, align provisions for the submission and consideration of material by victims and concerned persons to the Mental Health Review Tribunal with those for the Mental Health Court, and streamline certain aspects of the forensic legal process.

Renee Gastaldon

Research Brief No 2007/30

Queensland Parliamentary Library General Distribution Research Team

Research and Information Service Ms Karen Sampford, Team Leader (07) 3406 7116 Mrs Nicolee Dixon, Senior Parliamentary Research Officer (07) 3406 7409 Mrs Renee Gastaldon, Parliamentary Research Officer (07) 3406 7241

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ISSN 1443-7902 ISBN 978-1-921056-57-4 OCTOBER 2007

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CONTENTS

EXECUTIVE SUMMARY .......................................................................................

1 INTRODUCTION.............................................................................................1

2 CLASSIFIED PATIENT INFORMATION ORDERS AND FORENSIC PATIENT INFORMATION ORDERS....................................3

2.1 CLASSIFIED PATIENT INFORMATION ORDERS ................................................3

2.1.1 Current provisions and observations in the Final Report ......................3

2.1.2 Relevant recommendations....................................................................5

2.1.3 Proposed amendments ...........................................................................6

2.2 FORENSIC PATIENT INFORMATION ORDERS.................................................13

2.2.1 Current provisions and observations in the Final Report ....................13

2.2.2 Relevant recommendations..................................................................17

2.2.3 Proposed amendments .........................................................................19

3 RISK MANAGEMENT PROCESSES..........................................................29

3.1 CURRENT PROVISIONS AND OBSERVATIONS IN THE FINAL REPORT.............29

3.2 RELEVANT RECOMMENDATIONS .................................................................31

3.3 PROPOSED AMENDMENTS............................................................................32

4 STATEMENTS BY VICTIMS AND CONCERNED PERSONS TO MENTAL HEALTH REVIEW TRIBUNAL .......................................33



4.3 PROPOSED AMENDMENTS............................................................................36

5 STREAMLINING THE FORENSIC LEGAL PROCESSES.....................37



5.3 PROPOSED AMENDMENTS............................................................................ 42

APPENDIX A - REVIEW OF THE QUEENSLAND MENTAL HEALTH ACT 2000, RECOMMENDATIONS.................................................45

RECENT QPL RESEARCH PUBLICATIONS 2007........................................ 47

Mental Health Act 2000: Mental Health and Other Legislation Amendment Bill 2007 (Qld)

EXECUTIVE SUMMARY

On 11 October 2007, the Hon S Robertson MP, Minister for Health, introduced the Mental Health and Other Legislation Amendment Bill 2007 (Qld) (‘Bill’) into the Queensland Legislative Assembly. The Bill seeks to implement the remaining 29 legislative recommendations made by Mr Brendan Butler AM SC in the final report of the Review of the Queensland Mental Health Act 2000, Promoting Balance in the Forensic Mental Health System (‘Final Report’). This Research Brief considers the amendments proposed by the Bill to the Mental Health Act 2000 (Qld) (‘Act’). It does so by listing the recommendations relevant to those amendments in the context of the current provisions of the Act and the observations made in the Final Report about the operation of those provisions. By way of summary, the amendments proposed by the Bill seek to: ▪ provide a framework under which victims and other approved persons may

receive certain limited information about classified patients and forensic patients under ‘classified patient information orders’ and ‘forensic patient information orders’ (pages 3-29);

▪ enhance risk management processes, including by providing legislative recognition for a particular category of forensic patients (‘special notification forensic patients’) who have committed certain serious violent offences, and requiring policies and guidelines to be issued about the treatment and care of forensic patients (pages 29-33);

▪ aligning provisions regarding the submission and consideration of material from victims and concerned persons by the Mental Health Review Tribunal with those applying for the Mental Health Court (pages 33-37); and

▪ streamlining certain aspects of the forensic legal process, including by transferring some functions currently performed under the Act by the Attorney-General to the Director of Public Prosecutions (pages 37-44).

For information on the background to the review of the Act, and on the ten recommendations in the Final Report that were given effect to earlier this year by the Health and Other Legislation Amendment Act 2007 (Qld), readers are referred to an earlier publication of the Queensland Parliamentary Library, ‘Implementing Recommendations of the Review of the Mental Health Act 2000 (Qld): the Health and Other Legislation Amendment Bill 2007 (Qld)’ (Research Brief, No 2007/10, April 2007).

Mental Health Act 2000: Mental Health and Other Legislation Amendment Bill 2007 (Qld) p. 1

1 INTRODUCTION

In April 2007, the Queensland Parliamentary Library Published a Research Brief, ‘Implementing Recommendations of the Review of the Mental Health Act 2000 (Qld): the Health and Other Legislation Amendment Bill 2007 (Qld)’.1

The Research Brief discussed proposed amendments2 to the Mental Health Act 2000 (Qld) (‘Act’) to give effect to ten of the 106 recommendations made by Mr Brendan Butler AM SC in the final report of the Review of the Queensland Mental Health Act 2000 (‘Review’), Promoting Balance in the Forensic Mental Health System3 (‘Final Report’). It also provided information on the background to the Review.

On 11 October 2007, the Hon S Robertson MP, Minister for Health, introduced the Mental Health and Other Legislation Amendment Bill 2007 (Qld) (‘Bill’) into the Queensland Legislative Assembly.4 The Bill seeks to implement the remaining 29

1 Queensland Parliamentary Library (Renee Gastaldon), ‘Implementing Recommendations of the

Review of the Mental Health Act 2000 (Qld): the Health and Other Legislation Amendment Bill 2007 (Qld)’, Research Brief, No 2007/10, April 2007, downloaded on 25 October 2007 from http://www.parliament.qld.gov.au/view/publications/documents/research/ResearchBriefs/2007/RBR200710.pdf.

2 The amendments were given effect to by the Health and Other Legislation Amendment Act 2007 (Qld), which was passed in May 2007 and commenced in July 2007.

3 Queensland (Queensland Health). Review of the Queensland Mental Health Act 2000, Promoting Balance in the Forensic Mental Health System, Final Report, December 2006, downloaded on 25 October 2007 from http://www.reviewmha.com.au/documents/pb_final_report_review.pdf.

4 Note that during the Minister’s Second Reading Speech for the Bill, the Minister tabled the response of the Queensland Government to the Final Report, Queensland Government Response to the Final Report – Review of the Queensland Mental Health Act 2000, downloaded on 25 October 2007 from http://www.health.qld.gov.au/mha2000/docs/govt_response.pdf (Hon S Robertson MP, Minister for Health, Mental Health and Other Legislation Amendment Bill 2007, Second Reading Speech, Queensland Parliamentary Debates (Hansard), 11 October 2007, pp 3451-3453, at p 3451).

http://www.parliament.qld.gov.au/view/publications/documents/research/ResearchBriefs/2007/RBR200710.pdf

http://www.parliament.qld.gov.au/view/publications/documents/research/ResearchBriefs/2007/RBR200710.pdf

http://www.reviewmha.com.au/documents/pb_final_report_review.pdf

http://www.health.qld.gov.au/mha2000/docs/govt_response.pdf

p. 2 Queensland Parliamentary Library

legislative recommendations made in the Final Report.5 Part 2 of the Bill amends the Act.6

This Research Brief considers the amendments proposed by the Bill to the Act.7 It does so by listing the recommendations relevant to those amendments in the context of the current provisions of the Act and the observations made in the Final Report about the operation of those provisions.

By way of summary, the amendments proposed by the Bill seek to: • provide a framework under which victims and other approved persons may

receive certain limited information about classified patients and forensic patients under ‘classified patient information orders’ and ‘forensic patient information orders’;

• enhance risk management processes, including by providing legislative recognition for a certain category of forensic patients (‘special notification forensic patients’) who have committed certain serious violent offences, and requiring policies and guidelines to be issued about the treatment and care of forensic patients;

• aligning provisions regarding the submission and consideration of material from victims and concerned persons by the Mental Health Review Tribunal with those applying for the Mental Health Court; and

• streamlining certain aspects of the forensic legal process, including by transferring some functions currently performed under the Act by the Attorney-General to the Director of Public Prosecutions.

In introducing the Bill, the Minister referred to a new Victim Support Service which is anticipated to commence operation in early 2008. Some of the amendments under the Bill, particularly those relating to classified patient information orders and forensic patient information orders, will support some of the functions of that service.8

5 All 106 recommendations are reproduced in Appendix A of this Research Brief.

6 Cl 3.

7 The Bill also proposes minor or consequential amendments to other legislation which are not considered in this Research Brief.

8 Second Reading Speech, p 3452. See also Hon S Robertson MP, Minister for Health, ‘New Victim Support Service cornerstone of mental health reforms’, Ministerial Media Statement, 9 October 2007.


2 CLASSIFIED PATIENT INFORMATION ORDERS AND FORENSIC PATIENT INFORMATION ORDERS

The Bill proposes inserting a new chapter 7A ‘Classified patient information orders and forensic patient information orders’ into the Act to allow victims and other approved persons to receive limited information about classified and forensic patients.

Classified patient information orders will be made by the Director of Mental Health. Forensic patient information orders will be made by the Mental Health Review Tribunal.

2.1 CLASSIFIED PATIENT INFORMATION ORDERS

2.1.1 Current provisions and observations in the Final Report

Chapter 3 of the Act deals with persons having a mental illness who are before a court or in custody and who require assessment or detention under the Act. A ‘classified patient’ is a person who is transferred from court or custody to an authorised mental health service under chapter 3, part 4 of the Act.

Currently, the Act does not allow for information about classified patients to be provided to their victims.

The Final Report notes the following about the provision of information about classified patients to the victims of offences they have allegedly committed:

A defendant awaiting a hearing in the Mental Health Court may be released on bail, detained in an authorised mental health service, a prison or youth detention centre. The defendant may be transferred from a prison or youth detention centre to an authorised mental health service. If the defendant is detained in, or transferred to, an authorised mental health service, the defendant becomes a ‘classified patient’. Under the Act, the Director of Mental Health may approve limited community treatment (LCT) for a classified patient. …

If the defendant is detained in an authorised mental health service, the victim is not told of this fact. The victim is also not told if the defendant is given LCT or absconds. This is because the information Queensland Health employees can provide is restricted under the confidentiality provisions of the Health Services Act 1991, which prevent disclosure of information if a person who is receiving a public sector health service could be identified from the information. These provisions prevent disclosure to victims of any information about the defendant, including their status as an inpatient at an authorised mental health service.

The literature on victimology strongly indicates that the early provision of support and accurate information is fundamental to the prevention of re-traumatisation and the promotion of recovery.


Because the defendant is a patient, the defendant is entitled to confidentiality in the same way as any other patient. While personal information about the defendant’s health and treatment should be protected, the strict confidentiality provisions fail to recognise the needs of victims of crime. A better balance between the rights of patients and those of victims is necessary to protect the health of victims as well as patients.9

The Final Report acknowledges the fear some victims feel in the period between a person being charged with an offence and a determination being made by the Mental Health Court, particularly because they are uncertain about whether the defendant is detained as an inpatient or is out in the community. The Final Report states that victims should be provided with this information “for their own safety and peace of mind”, similar to the rights of certain victims in the criminal justice system under the Criminal Offences Victims Act 1995 (Qld).10

Balanced with this acknowledgement was recognition in the Final Report that a duty of care exists towards defendants who are patients of the mental health system. For example, mental health facilities often do not have the same level of security as prisons. This may mean that the entry of persons to those facilities poses a greater risk to patients than would be expected for inmates at a prison. Accordingly, information about where a defendant is being detained should not be released to victims. In addition, defendants are also entitled, similar to other medical patients, to expect that their health information be treated as confidential. Therefore, the information provided to a victim should be limited to that which will enable them to be assured as to the level of the defendant’s supervision, and should not include information about the defendant’s treatment other than their leave arrangements and conditions on their limited community treatment relevant to the victim’s need to feel safe.11

In terms of the provision of information about classified patients to victims, the Final Report stated that, similar to the Corrective Services Act 2006 (Qld), the Mental Health Act 2000 should allow victims to nominate other persons or agencies to receive the information on their behalf. This would enable the information to be provided in a way that is supportive to the victim.12

Having regard to the involvement of the Director of Mental Health in various processes relating to classified patients under the Act, the Final Report concludes

9 Promoting Balance in the Forensic Mental Health System, Final Report, pp 52-53.

10 Promoting Balance in the Forensic Mental Health System, Final Report, p 53.




that it is appropriate for the Director to be the decision maker in relation to the release of information about classified patients to their victims.13

2.1.2 Relevant recommendations

Recommendations 3.2 to 3.9 of the Final Report are identified as being relevant to the proposed classified patient information orders regime.14

Recommendation 3.2 states: That Queensland Health establish a victim register to facilitate the provision of information to victims in cases where the defendant is a classified patient detained in an authorised mental health service awaiting determination of a charge for an indictable offence.

Recommendation 3.3 states: That the following persons may apply to be registered to receive classified patient information: • the actual victim of the offence; • a member of the immediate family of a deceased victim (including siblings); • the parent or guardian of a victim under the age of 18 or of a victim who has a

legal incapacity.

Recommendation 3.4 states: That the following information may be released to registered persons by Queensland Health: • the defendant is detained in an authorised mental health service, but the name

and address of any place where the defendant is living is not to be released; • whether the defendant is granted limited community treatment (other than

escorted leave on the grounds of the hospital), the conditions of limited community treatment relevant to the victim’s need to feel safe, and any revocation of limited community treatment by the Director of Mental Health;

• where the defendant is absent without permission from the authorised mental health service;

• the defendant has been returned to a correctional facility or to court.

Recommendation 3.5 states: That the Mental Health Act 2000 be amended to override the operation of section 62A of the Health Services Act 1991 to enable the disclosure of information to victims in the abovementioned circumstances.


14 Mental Health and Other Legislation Amendment Bill 2007 (Qld), Explanatory Notes, p 3.


Recommendation 3.6 states: That the Director of Mental Health decide applications by victims to be registered to receive information about a classified patient who is on remand.

Recommendation 3.7 states: That the Director of Mental Health may grant an application for registration he or she reasonably considers appropriate but must refuse an application if he or she reasonably believes that the disclosure of the information is likely to: • cause serious harm to the health of the patient; or • endanger in a serious way the safety of the patient or another person.

Recommendation 3.8 states: That the applicant may nominate a person or entity to receive information about a classified patient on their behalf.

Recommendation 3.9 states: That a victim seeking the release of information about a patient and the victim’s nominee sign a declaration undertaking that he or she will not disclose, for public dissemination, any patient information disclosed to the victim. A breach of this undertaking may be cause for refusal to further disclose patient information to the victim or his or her nominee.

2.1.3 Proposed amendments

Part 1 of the proposed new chapter 7A will deal with classified patient information orders. The proposed amendments are discussed below in terms of: • who may apply for a classified patient information order; • informing relevant persons of a patient’s detention as a classified patient; • the information that may be provided under a classified patient information

order; • the information that must not be provided under a classified patient information

order; • when an application for a classified patient information order must be refused; • special requirements if the applicant is a minor; • how a decision on an application is to be notified; and • the revocation of classified patient information orders.

Applying for a classified patient information order

The following persons will be able to apply to the Director of Mental Health for a classified patient information order:


• a ‘direct victim’15 of an alleged offence allegedly committed by a classified patient;

• if a direct victim is a minor or has a legal incapacity – their parent or guardian; • if a direct victim has died as a result of the offence – an immediate family

member of the direct victim; or • a person who, immediately before the patient became a classified patient, was

an ‘eligible person’ in relation to the patient under the Corrective Services Act 2006 (Qld).16

An applicant will be able to nominate another person to receive the information under a classified patient information order on their behalf. That nomination may be made with the original application or later.17

The application must be accompanied by a declaration signed by the applicant (and any nominee) stating that the applicant (and the nominee) will not disclose, for public dissemination, any information relating to the classified patient that is disclosed under a classified patient information order.18

Informing relevant persons of patient’s detention as a classified patient

The Director of Mental Health will be required to give written notice of a patient’s detention as a classified patient to any person who the Director reasonably believes may apply for a classified patient information order about the patient.19

This provision will ensure that victims and other relevant persons are aware that the person has become a classified patient and that the victims are eligible to apply for a classified patient information order.20

15 ‘Direct victim’, of an alleged offence, is defined to mean a person against whom the alleged

offence was allegedly committed (Mental Health Act 2000, schedule 2).

16 Cl 27, proposed new s 318C(6). See section 320 of the Corrective Services Act 2006 for ‘eligible persons’ under that Act.

17 Cl 27, proposed new ss 318C(4) and 318H.

18 Cl 27, proposed new ss 318C(3) and (5), 318H.

19 Cl 4, proposed new s 70(4).

20 Explanatory Notes, p 12.


Information provided under a classified patient information order

The information the Director of Mental Health will be able to provide under a classified patient information order will be as follows: • the fact that the patient is detained in an authorised mental health service as a

classified patient; • the fact that approval has been given for limited community treatment for the

patient; • any conditions on which the approval for limited community treatment has

been given that are relevant to the safety of the applicant or, if the applicant is a parent or guardian of a direct victim, the direct victim;

• the fact that approval for limited community treatment has been withdrawn; • the fact that the patient is absent without approval, or is no longer absent

without approval, if the absence is relevant to the applicant or, if the applicant is a parent or guardian of a direct victim, the direct victim;

• the fact that the patient has ceased to be a classified patient, the reason for this and the date it occurred; and

• the fact that the patient has been transferred from one authorised mental health service to another, and the date it occurred.21

For the purposes of section 62B of the Health Services Act 1991 (Qld), a disclosure of information in a classified patient information order will be a disclosure permitted by an Act.22

Information that must not be provided under a classified patient information order

The following information must not be provided under a classified patient information order: • the name or address of the in-patient facility at which the patient is being

detained under the Act; • if an approval has been given for limited community treatment for the patient

and, under the approval, the patient is residing at a place other than their treating health service – the name or address of the place, or the name or contact details of any person residing at the place;

• the name or contact details of any relative of the patient;

21 Cl 27, proposed new s 318C(1).

22 Cl 27, proposed new s 318L.


• information about the treatment or care of the patient at the patient’s treating health service.23

When an application for a classified patient information order must be refused

The Director of Mental Health will be required to refuse an application for a classified patient information order if the Director reasonably believes disclosure of information under the order to the applicant (or any nominee) would be likely to: • cause serious harm to the classified patient’s health; or • put the safety of the patient or someone else at serious risk.24

There may be other circumstances in which the Director may also decide to refuse an application.

[This restriction] does not limit the reasons for which the director may refuse to grant an application for a classified patient information order. For example, in addition to the restrictions mentioned in the Act, the director may decide not to grant an application to a person if the director considers the application to be vexatious or frivolous, or if the director believes that a prisoner in the custody of corrective services is only going to be a classified patient for a very short time to receive treatment for a mental illness unrelated to the offence for which the prisoner has been convicted.25

Applications by minors

If a minor26 applies for a classified patient information order, the Director of Mental Health may make the order if the Director reasonably believes it is in the minor’s best interests to do so.27

In deciding what is in the minor’s best interests: ... the director is not restricted in the matters which the director reasonably believes may be relevant to consider. Relevant matters for determining the best interests of a minor may include, for example, the age and maturity of the minor, the impact of

23 Cl 27, proposed new s 318C(2).

24 Cl 27, proposed new s 318E.


26 The Acts Interpretation Act 1954 (Qld), s 36, defines ‘minor’ as an individual who is under 18.

27 Cl 27, proposed new s 318D(1). Note that this is subject to the general restriction on making classified patient information orders under the proposed new s 318E.


receiving the information on the minor’s health or safety, the wishes of the minor and the harm suffered by the minor during the commission of the alleged offence.28

The Director will also generally be required to consult with a parent or guardian of a minor in deciding what is in the minor’s best interests.29 One exception to this will be if the Director is satisfied it would be inappropriate in all the circumstances to do so.30 This may be the case if the minor is an older teenager who is estranged from his or her parents and has sufficient maturity to understand the nature of the application.31

Notifying a decision on an application

Before an application for a classified patient information order is decided, the Director of Mental Health will be required to give the patient the subject of the application a reasonable opportunity to make a submission about whether disclosure of information under such an order would be likely to cause serious harm to the their health or put the safety of themselves or someone else at serious risk.32

This requirement will not apply, however, if the Director reasonably believes that the patient being aware of the application is likely to: • have an adverse effect on the health of the applicant or the patient; or • put the safety of the applicant, patient or someone else at risk.33

After deciding an application for a classified patient information order, the Director must give written notice of the decision within 21 days to the applicant (or their nominee) and the administrator of the patient’s treating health service.34 Written notice, within the same timeframe, must also be given to: • the classified patient;


29 Cl 27, proposed new s 318D(2).

30 Cl 27, proposed new s 318D(3)(a).


32 Cl 27, proposed new s 318F(1).

33 Cl 27, proposed new s 318F(2).

34 Cl 27, proposed new ss 318G(1)(a), 318G(1)(g) and 318G(4).


• the patient’s allied person;35 • if the patient is a minor – a parent or guardian; • if the Director reasonably believes the patient has a personal attorney – the

attorney; and • if the Director reasonably believes the patient has a personal guardian – the

guardian.36

However, the Director need not provide notice to this second group of persons if the Director reasonably believes that doing so would be likely to: • have an adverse effect on the health of the applicant or the patient; or • put the safety of the applicant, patient or someone else at risk.37

In deciding whether or not to grant an application: … the director may consider any matters the director considers appropriate. For example, the director may take into account the length of time the patient is likely to be a classified patient, and the nature and seriousness of the alleged offence.38

If an application is refused, notice of the decision to the applicant must also be accompanied by written notice of the reasons.39

The patient may also ask the Director for the reasons for the decision, in which case the Director must give those reasons within 21 days, unless the Director reasonably believes that doing so would be likely to: • have an adverse effect on the health of the applicant or the patient; or • put the safety of the applicant, patient or someone else at risk.40

35 For ‘allied persons’, see the Mental Health Act 2000, chapter 9, part 1. The function of an

allied person for an involuntary patient is to help the patient to represent the patient’s views, wishes and interests relating to the patient’s assessment, detention and treatment under the Act (s 340).

36 Cl 27, proposed new ss 318G(1)(b)-(f).

37 Cl 27, proposed new s 318G(2).


39 Cl 27, proposed new s 318G(3).

40 Cl 27, proposed new ss 318G(5) and (6).


Revocation of classified patient information orders

In some circumstances, the Director will be required to revoke a classified patient information order. An order must be revoked if: • the patient ceases to be a classified patient; • either the patient, or the person for whom the order is made, dies and the

Director becomes aware of the death; • the person for whom the order is made requests the Director to revoke the

order; or • the Director reasonably believes disclosure of information under the order to

the person for whom the order is made (or their nominee) is likely to cause serious harm to the patient’s health or put the safety of the patient or someone else at serious risk.41

In other circumstances, revocation will be discretionary, for example if the person for whom an order is made (or their nominee) discloses information under the order for public dissemination, or inappropriately contacts the patient.42 Before revoking an order, the Director must notify the person for whom the order is made of the proposed revocation, and of the grounds for it, and provide a reasonable opportunity for the person to make a submission why the order should not be revoked.43

In either circumstance, if an order is revoked, the Director must, within seven days, notify the revocation, and the grounds, to the person for whom the order was made and the administrator of the patient’s treating health service. Notice in the same way must also be provided to the following persons (provided they were notified of the original granting of the order): • the patient; • the patient’s allied person; • if the patient is a minor – a parent or guardian; • if the Director reasonably believes the patient has a personal attorney – the

attorney; and • if the Director reasonably believes the patient has a personal guardian – the

guardian.44

41 Cl 27, proposed new s 318I.


43 Cl 27, proposed new s 318J.

44 Cl 27, proposed new s 318K.


2.2 FORENSIC PATIENT INFORMATION ORDERS

2.2.1 Current provisions and observations in the Final Report

A ‘forensic patient’ is a person who is subject to a forensic order under chapter 7, part 7 of the Act. A forensic order is an order of the Mental Health Court in relation to a person charged with an indictable offence who the Mental Health Court decides: • was of unsound mind when the alleged offence was committed; • is unfit to stand trial for the alleged offence and the unfitness for trial is of a

permanent nature; or • is unfit to stand trial for the alleged offence and the unfitness for trial is not of a

permanent nature.45

Forensic orders concern the detention of persons in authorised mental health services for involuntary treatment or care.46

The current system of ‘notification orders’ under the Act will be replaced by ‘forensic patient information orders’.47

The Final Report makes observations about the operation of the existing notification orders regime. It also discusses the interaction between the notification orders regime and confidentiality orders.

Existing notification orders regime

Currently, in order to receive information about a forensic patient, a victim must apply to the Mental Health Review Tribunal for a ‘notification order’, which allows the victim to be notified of one or more of the following: • when a review for the patient is to be carried out; • a decision made on a review by the Tribunal; • an approval that the patient move out of Queensland; • an order that the patient be transferred from one authorised mental health

service to another; • the transfer, under an interstate agreement, of the patient to another State.48

45 Mental Health Act 2000, ss 288(1) and (2). 46 Mental Health Act 2000, ss 288(2) and (4). 47 Cl 9. 48 Mental Health Act 2000, s 221.


There is no restriction on who may apply for a notification order however, for an application to be granted, the Tribunal must be satisfied that the applicant has a ‘sufficient personal interest’ in being notified under an order, such as: • a direct victim of an alleged offence committed by the patient or, if a direct

victim has died as a result, a relative of the direct victim; • a person who was with a direct victim at the time of the alleged offence; • a personal attorney or personal guardian of the patient; • the spouse or a relative or dependent of the patient.49

The matters the Tribunal must consider in deciding whether a person has a sufficient personal interest include: • whether the patient represents a risk to the safety of the person for whom the

order is to be made; • whether it is likely the patient will come into contact with the person; and • the nature and seriousness of the offence that led to the patient becoming a

forensic patient.50

If sufficient personal interest exists, the Tribunal must then consider the following matters in deciding whether to make an order: • the grounds of the application for the order; • whether as a consequence of the order the patient’s treatment or rehabilitation

is likely to be adversely affected; • the patient’s views; • other matters the Tribunal considers appropriate.51

This ‘two tiered’ process used for deciding applications for notification orders has been criticised by victims.52

The Final Report makes the following observations about the current regime: • notification orders are rarely used; • since the Tribunal commenced in 2002, there have been 23 applications for a

notification order (18 of which were granted), seven notification orders initiated by the Tribunal, and four applications made to vary a notification order;

49 Mental Health Act 2000, s 223(2).


51 Mental Health Act 2000, s 224.



• at the time of the Final Report, the Tribunal was administering 23 notification orders, all of which had been made in favour of surviving victims or relatives of deceased or surviving victims.53

In discussing new arrangements for the provision of information about forensic patients, the necessary balance between the concerns of victims and the rights of forensic patients, and the appropriate entity to make decisions about releasing such information, the Final Report states:

While victims of crime are victims regardless of whether the perpetrator is convicted and sentenced, the position of forensic patients cannot be equated to that of sentenced prisoners. Although there is agreement that a forensic patient committed the acts for which they were charged, a forensic patient has been found not to be criminally responsible for those acts or has been found unfit to stand trial because of his or her mental impairment. It is a community and government responsibility to provide quality treatment and rehabilitation services for people with mental illness to assist them to recover and rejoin the community safely. As for all health service consumers, mental health patients, including forensic patients, are entitled to expect that details of their illness and treatment will be kept confidential. However, with forensic patients who have committed violent offences, consideration must also be given to the safety and health needs of victims. A careful balancing between the needs and interests of patients and victims must occur. Administrative arrangements may not be the most appropriate way for the balancing of complex and competing interests to occur, particularly where decision making on relevant matters such as [limited community treatment] resides with an independent tribunal. The Review therefore proposes to retain decision making about the release of information with the Mental Health Review Tribunal.

The Review considers that the appropriate balance between considerations of the needs and interests of victims and patients is not achieved under the current legislation. Actual victims and immediate family members of deceased victims or of child victims should not have to establish a sufficient personal interest. … Further, the [matters the Tribunal must consider in deciding whether to make an order] are weighted heavily in favour of the interests of the patient.

… The legislation should be amended to grant to actual victims, the relatives of deceased victims and the parents or guardians of victims who are children or are under a legal disability, eligibility as of right to receive information without the need to establish a sufficient personal interest. …

Other persons who wish to receive information will need to establish a sufficient personal interest. …

It is not proposed to significantly alter the categories of information that may be released under a notification order. The primary changes are the addition of the following categories of information: • the patient is absent without permission and the subsequent return of the patient;



• the patient has died. …54

Existing provision for confidentiality orders

Currently, when deciding whether to make a notification order, the Mental Health Review Tribunal is required to consider the patient’s views.55

The Final Report discussions the notions of procedural fairness that generally operate to require a person who is likely to be adversely affected by a decision to be advised of information that is credible, relevant and significant to the decision and to be provided with an opportunity to respond to that information. For notification orders, the Final Report says that these concepts might ordinarily require a forensic patient to be advised of the making of an application for such an order and who the applicant is such that they can make a submission about the application. However, the existing provision under the Act for confidentiality orders56 is expressly stated to prohibit or restrict the disclosure of certain information to patients the subject of applications for notification orders. The Final Report notes the difficulties that exist in the interaction between this confidentiality provision and the requirement that the Tribunal, in deciding whether to make a notification order, consider the patient’s view. The Final Report concludes that the correct view at present is probably that in considering the patient’s views it would not be possible to withhold the identity of the applicant, thereby effectively rendering any confidentiality order valueless to the applicant.57

The Review considered that removing the requirement for the patient’s views to be considered in the granting of an order would overcome the current difficulty. It also proposed clarifying that confidentiality orders may extend to protecting the identity of persons applying for information about forensic patients. These steps are seen, in the Final Report, as striking a “fine balance” between the rights of patients and victims.58







2.2.2 Relevant recommendations

Recommendations 3.34 to 3.38, 3.40 and 3.50 of the Final Report are identified as being relevant to the proposed forensic patient information orders regime.59

Recommendation 3.34 states: That the following persons may apply to be registered to receive information about a forensic patient: • the actual victim of the offence with which the forensic patient was charged; • if the victim is deceased, an immediate family member of the deceased victim; • if the victim is under 18 years or has a legal disability, the victim’s parent or

guardian; • another person who satisfies the Tribunal that the person has a sufficient

personal interest in being informed.

Recommendation 3.35 states: That the following information about a forensic patient may be released by Queensland Health to registered persons: • when a review for the patient is to be carried out; • an order for or approving limited community treatment for the patient (other than

escorted leave on the grounds of the hospital), the conditions of the limited community treatment relevant to the victim’s need to feel safe, and an order revoking an order or approval for limited community treatment;

• the patient is absent without permission from the authorised mental health service and the subsequent return of the patient;

• an order that the patient be transferred from one authorised mental health service to another;

• an order approving that the patient move to another State or an approval that the patient transfer, under an interstate agreement, to another State;

• the death of the patient, but not the cause of death; • the revocation of the forensic order.

The name and address of any place where the patient is living must not be released.

Recommendation 3.36 states: That section 221 of the Mental Health Act 2000 be amended to provide that the Mental Health Review Tribunal may decide applications for registration by victims or persons with a sufficient personal interest.

The following persons do not have to establish a sufficient personal interest: • the actual victim of the offence with which the forensic patient was charged; • if the victim is deceased, an immediate family member of the deceased victim;



• if the victim is under 18 years of age or has a legal disability, the victim’s parent or guardian.

In determining whether other persons have a sufficient personal interest, the Tribunal must have regard to the following matters: • the nature, seriousness and circumstances of the offence that led to the patient

becoming a forensic patient; • the impact the refusal to grant the order is likely to have on the health, safety and

welfare of the applicant; • whether the making of the order is likely to have a significant adverse affect on

the patient’s treatment or rehabilitation; • any other matters the Tribunal considers appropriate.

Examples of people who may have a sufficient personal interest are: • a person who was with the victim when the offence was committed; • a personal attorney or personal guardian of the patient; • a family member, or dependant, of the victim; • a family member, carer or dependant of the patient.

The Tribunal must refuse an application for registration if it reasonably believes the release of that patient information to the applicant is likely to: • cause serious harm to the health of the patient; or • endanger in a serious way the safety of the patient or another person.

The Tribunal must refuse an application if it is satisfied the application is frivolous or vexatious.

The Tribunal may refuse an application for registration or revoke registration if the Tribunal: • reasonably suspects the applicant, or the applicant’s nominee, has disclosed, for

public dissemination, any patient information released under the Act, after providing the applicant with an opportunity to show cause why the registration should be made or should not be revoked;

• is unable, after making reasonable efforts, to contact the applicant.

Recommendation 3.37 states: That the applicant may nominate a person or entity to receive information about a forensic patient on their behalf.

Recommendation 3.38 states: That the applicant and his or her nominee sign a declaration undertaking that he or she will not disclose, for public dissemination, any patient information disclosed to the victim. A breach of this undertaking may be cause for refusal to further disclose patient information to the applicant or his or her nominee.

Recommendation 3.40 states: That, if required, legislative amendments be made to ensure the information to be released under an order to release patient information is provided to the Queensland


Health Victim Support Service by the Mental Health Review Tribunal and the Director of Mental Health.

Recommendation 3.50 states: That the Act be amended to enable a confidentiality order to be made in respect of an application for registration to receive information if the Mental Health Review Tribunal is satisfied that disclosing the identity of the applicant and the grounds of the application to the patient is likely to have an adverse effect on the physical or mental health of the applicant, or the patient, or place the safety of the applicant, the patient, or another person at risk.

2.2.3 Proposed amendments

Part 2 of the proposed new chapter 7A will deal with forensic patient information orders. The proposed amendments are discussed below in terms of: • who may apply for a forensic patient information order; • notifying victims of the reference of a person’s mental condition relating to an

offence to the Mental Health Court; • the information that may be provided under a forensic patient information

order; • the information that must not be provided under a forensic patient information

order; • when an application for a forensic patient information order must be refused; • special requirements if the applicant is a minor; • how a decision on an application is to be notified; • confidentiality orders; • changing conditions of forensic patient information orders; and • the revocation of forensic patient information orders.

Applying for a forensic patient information order

Any person will be able to apply to the Mental Health Review Tribunal for a forensic patient information order.

If an application is made by one of the following persons (‘eligible persons’), the Tribunal will be required to grant the application (subject to the general restriction on all applications, discussed below): • a direct victim of an alleged offence allegedly committed by the forensic

patient; • if a direct victim is a minor or has a legal incapacity – their parent or guardian;

or


• if a direct victim has died as a result of the offence – an immediate family member of the direct victim.60

If an application is made by any other person, then (also subject to the same general restriction discussed below) the Tribunal will be prohibited from making a forensic patient information order unless the Tribunal is satisfied the applicant has a ‘sufficient personal interest’ in being given notice of the information under the order.61

In deciding whether the applicant has a sufficient personal interest, the matters the Tribunal will be required to consider include: • whether the patient represents a risk to the safety of the person for whom the

order is to be made; • whether it is likely the patient will come into contact with the person; • the nature and seriousness of the offence that led to the patient becoming a

forensic patient; • whether the applicant is a relative of the patient; • other matters the Tribunal considers appropriate (e.g. the effect on the applicant

if the application is not granted).62

An applicant will be able to nominate another person to receive the information under a forensic patient information order on their behalf. That nomination may be made with the original application or later.63

The application must be accompanied by a declaration signed by the applicant (and any nominee) stating that the applicant (and the nominee) will not disclose, for public dissemination, any information relating to the forensic patient that is disclosed under a forensic patient information order.64

60 Cl 27, proposed new ss 318O(6) and (7).

61 Cl 27, proposed new s 318Q(1) and (2).

62 Cl 27, proposed new s 318Q(3).

63 Cl 27, proposed new ss 318O(4) and 318V.

64 Cl 27, proposed new ss 318O(3) and (5), 318V.


Notifying victims of reference to the Mental Health Court

On reference of a person’s mental condition relating to an offence to the Mental Health Court, the Director of Mental Health may give written notice of the reference to a victim of the alleged offence to which the reference relates.65

This is to ensure that anyone who may be eligible to apply for a forensic patient information order is made aware that the person who allegedly committed the alleged offence has been referred to the Mental Health Court and consequently may have a forensic order made concerning them.66

Information provided under a forensic patient information order

The information the Mental Health Review Tribunal will be able to provide under a forensic patient information order will be as follows: • when a review for the patient is to be carried out; • the revocation or confirmation of the forensic order for the patient; • the fact that an approval has been given for the patient to move out of

Queensland; • the fact that the patient has been transferred from one authorised mental health

service to another, and the date this occurred; • the fact that the patient has been transferred, under an interstate agreement, to

another State; • the fact that an order has been made that the patient have limited community

treatment; • the fact that an order has been made approving limited community treatment

for the patient; • any conditions on which an order for limited community treatment has been

made, if the Director of Mental Health decides the conditions are relevant to the safety of the applicant or, if the applicant is a parent or guardian of a direct victim, the direct victim;

• the fact that an order has been made revoking an order or approval for limited community treatment for the patient;

• the fact that the patient is absent without approval, or is no longer absent without approval, if the Director of Mental Health decides the fact of the absence is relevant to the applicant or, if the applicant is a parent or guardian of a direct victim, the direct victim;

65 Cl 23, proposed new s 264(1A).



• the fact that the patient ceases to be a forensic patient, the reason for this and the date it occurred.67

For the purposes of section 62B of the Health Services Act 1991 (Qld), a disclosure of information in a forensic patient information order will be a disclosure permitted by an Act.68

Information that must not be provided under a forensic patient information order

The following information must not be provided under a forensic patient information order: • the name or address of the in-patient facility at which the patient is being

detained under the Act; • if an order has been made or an approval has been given for limited community

treatment for the patient and, under the order or approval, the patient is residing at a place other than the patient’s treating health service – the name or address of the place, or the name or contact details of any other person residing at the place;

• the name or contact details of any relative of the patient; • information about the treatment or care of the patient at the patient’s treating

health service.69

When an application for a forensic patient information order must be refused

The Mental Health Review Tribunal will be required to refuse an application for a forensic patient information order if the Tribunal: • is satisfied it is frivolous or vexatious; or • reasonably believes disclosure of forensic patient information to the applicant

or their nominee would be likely to: − cause serious harm to the forensic patient’s health; or − put the safety of the patient or someone else at serious risk.70

The Tribunal may also refuse an application if a forensic patient information order previously made for the applicant was revoked on one of the following grounds:

67 Cl 27, proposed new s 318O(1).

68 Cl 27, proposed new s 318ZB.

69 Cl 27, proposed new s 318O(2).

70 Cl 27, proposed new s 318S(1).


• the applicant or their nominee disclosed, for public dissemination, forensic patient information disclosed to them under an order; or

• the applicant did not comply with a condition imposed on a forensic patient information order.71

However, before refusing to grant an application on one of these latter grounds, the applicant must be given a reasonable opportunity to make a submission to the Tribunal about why the application should not be refused.72

Applications by minors

If a minor (irrespective of whether the minor is, or is not, an ‘eligible person’, as discussed above) applies for a forensic patient information order, the Mental Health Review Tribunal may make the order if it reasonably believes it is in the minor’s best interests to do so.73

In deciding what is in the minor’s best interests: … the tribunal is not restricted in the matters which the tribunal may reasonably consider may be relevant. Relevant matters for determining the best interests of a minor may include, for example, the age and maturity of the minor, the impact of receiving the information on the minor’s health or safety, the wishes of the minor and the harm suffered by the minor during the commission of the alleged offence.74

The Tribunal will also be required to consult with a parent or guardian of the minor in deciding what is in the minor’s best interests.75 One exception to this is if the Tribunal is satisfied it would be inappropriate in all the circumstances to do so.76 This may be the case if the minor is an older teenager who is estranged from his or her parents and has sufficient maturity to understand the nature of the application.77



73 Cl 27, proposed new s 318P(1) and (2).


75 Cl 27, proposed new s 318P(3).

76 Cl 27, proposed new s 318P(4).



Notifying a decision on an application

An application for a forensic patient information order may be decided by: • the Mental Health Review Tribunal constituted by the president on written

material and submissions, without the applicant or forensic patient attending a hearing of the application; or

• the Tribunal during a review carried out for the forensic patient or at a hearing conducted for the application.78

Conditions may be imposed on a forensic patient information order as the Tribunal considers appropriate. Non-compliance with any condition by the person for whom the order is made will be a ground for the revocation of the order.79

After deciding an application for a forensic patient information order, the Tribunal must give written notice of the decision (and, in the case of a refusal, reasons for the refusal) within seven days to: • the Director of Mental Health; • the forensic patient and their allied person (unless a confidentiality order, as

discussed below, applies); • if the patient is a minor or has a legal incapacity – their parent or guardian; • if the Director reasonably believes the patient has a personal attorney – the

attorney; • if the Director reasonably believes the patient has a personal guardian – the

guardian; • the administrator of the patient’s treating health service; • the Attorney-General; and • the chief executive for justice.80

Within 21 days after receiving such notice, the Director of Mental Health must give a copy to the applicant (or any nominee).81

78 Cl 27, proposed new s 318R.

79 Cl 27, proposed new s 318T.

80 Cl 27, proposed new s 318U(1), (3), (5), (7) and (8).

81 Cl 27, proposed new ss 318U(2), (4), (6).


Confidentiality orders

The amendments proposed by the Bill to the current provision concerning confidentiality orders82 are directed at clarifying the information the Mental Health Review Tribunal may order be prohibited or restricted from disclosure to patients subject to applications for forensic patient information orders.

Under the proposed amendments, the Tribunal may, by order (a ‘confidentiality order’), prohibit or restrict the disclosure of any of the following to the patient the subject of an application for a forensic patient information order: • the identity of the applicant; • the existence of the application; • information given before it; • matters contained in documents filed with, or received by, it; • the reasons for its decision on the application.83

The Tribunal may make a confidentiality order in these circumstances only if it is satisfied the disclosure would: • have an adverse effect on the health of the applicant or the patient; or • put the safety of the applicant, patient or someone else at risk.84

If the applicant applies for a confidentiality order, the order may be made by the Tribunal: • constituted by the president on written material and submissions, without the

applicant or forensic patient attending a hearing of the application; or • at a hearing conducted for the application for the order.85

Changing conditions of forensic patient information orders

The conditions of a forensic patient information order will be able to be changed by the Mental Health Review Tribunal: • acting on its own initiative;86 or • following application by a relevant person.87



84 Cl 28, proposed new s 458(2B). Although the drafting of the proposed new s 458(2B) refers to a confidentiality order made under subsection (2), it appears that the intended reference should instead be to a confidentiality order made under subsection (2A).

85 Cl 28, proposed new s 458(2C).

86 Cl 27, proposed new s 318W.

87 Cl 27, proposed new s 318X.


Tribunal acting on its own initiative

The Mental Health Review Tribunal, acting on its own initiative, will be able to change any conditions on a forensic patient information order.88

Before doing so, the Tribunal will be required to give written notice of the proposed decision, the grounds for it, and an invitation to make submissions to the Tribunal about why the proposed decision should not be made, to: • the Director of Mental Health; • the person for whom the order is made (via the Director of Mental Health); and • the forensic patient and their allied person (unless a confidentiality order

applies).89

If, after taking into account any such submissions, the Tribunal decides not to change the conditions, it must, within seven days, give written notice to each of the persons mentioned above.90 However, if the Tribunal decides to make the change, it must, within seven days, give written notice of its decision to: • the Director of Mental Health (who then has 21 days to give a copy to the

applicant or their nominee. Once this occurs, the change in the conditions takes effect);

• the forensic patient and their allied person (unless a confidentiality order applies);

• if the patient is a minor or has a legal incapacity – their parent or guardian; • if the Director reasonably believes the patient has a personal attorney – the



88 Cl 27, proposed new s 318W(1).

89 Cl 27, proposed new ss 318W(2)-(4), (10)-(12).

90 Cl 27, proposed new ss 318W(8) and (9).

91 Cl 27, proposed new ss 318W(5)-(7) and (11).


Application by a relevant person

Any of the following persons will be able to apply to the Mental Health Review Tribunal to change the conditions imposed on a forensic patient information order: • the person for whom the order is made; • the Director of Mental Health; • the forensic patient; • the forensic patient’s allied person.92

Before deciding an application, the Tribunal will be required to give a copy of the application, and an invitation to make submissions to the Tribunal about the application, to each of the above persons (this requirement will not apply in relation to a forensic patient and their allied person if a confidentiality order exists). In the case of the person for whom the order is made, the copy must be provided via the Director of Mental Health.93

If, after taking into account any submissions received, the Tribunal decides not to grant the application, it must, within seven days, give written notice of the decision to: • the Director of Mental Health; • the person for whom the order is made (via the Director of Mental Health); and • the forensic patient and their allied person (unless a confidentiality order

applies).94

However, if the Tribunal decides to grant the application, it must, within seven days, give written notice of its decision to: • the Director of Mental Health (who then has 21 days to give a copy to the

applicant or their nominee. Once this occurs, the change in the conditions takes effect);


• if the patient is a minor or has a legal incapacity – their parent or guardian; • if the Director reasonably believes the patient has a personal attorney – the


guardian;

92 Cl 27, proposed new s 318X(1), (12).

93 Cl 27, proposed new ss 318X(2)-(4), (10) and (11).

94 Cl 27, proposed new ss 318X(8)-(12).


• the administrator of the patient’s treating health service; • the Attorney-General; and • the chief executive for justice.95

Revocation of forensic patient information orders

In some circumstances, the Mental Health Review Tribunal will be required to revoke a forensic patient information order. An order must be revoked if: • the patient the subject of the order ceases to be a forensic patient; • either the patient, or the person for whom the order is made, dies and the

president becomes aware of the death; • the person for whom the order is made requests the president to revoke the

order; • the president reasonably believes disclosure of information under the order to

the person for whom the order is made, or their nominee, is likely to cause serious harm to the patient’s health or put the safety of the patient or someone else at serious risk; or

• the patient has, under an interstate agreement, been transferred to another State.96

In other circumstances, revocation will be discretionary if: • the Tribunal is unable, after making reasonable efforts, to locate the person for

whom the order is made and any nominee; • the person or their nominee has disclosed, for public dissemination, any

forensic patient information relating to the patient disclosed under the order; or • a condition on the order has not been complied with.97

Before revoking an order on the grounds of dissemination of information or non-compliance with a condition, the Tribunal must give the person for whom the order is made a reasonable opportunity to make a submission about why the order should not be revoked.98

If a forensic patient information order is revoked in any circumstance, the Tribunal must, within seven days, give written notice of the revocation and the grounds to:

95 Cl 27, proposed new ss 318X(5)-(7) and (10)-(12).

96 Cl 27, proposed new s 318Y.

97 Cl 27, proposed new s 318Z(1).

98 Cl 27, proposed new s 318Z(2).


• the Director of Mental Health (who then has 21 days to give a copy to the applicant or their nominee);


• if the patient is a minor – their parent or guardian; • if the president reasonably believes the patient has a personal attorney – the

attorney; • if the president reasonably believes the patient has a personal guardian – the


3 RISK MANAGEMENT PROCESSES

3.1 CURRENT PROVISIONS AND OBSERVATIONS IN THE FINAL REPORT

As already discussed,100 the Mental Health Court may make an order (a ‘forensic order’) in relation to a person charged with an indictable offence if the Court decides that the person was of unsound mind when the alleged offence was committed or is unfit for trial for the alleged offence.

A forensic order requires a person to be detained in a stated authorised mental health service for involuntary treatment or care.101 The patient may be detained in the authorised mental health service stated in the order until the patient ceases to be a forensic patient.102 The administrator of the patient’s treating health service must ensure that the forensic order for the patient is given effect.103 An authorised doctor for the authorised mental health service must: • ensure a treatment plan is prepared for the patient; and

99 Cl 27, proposed new s 318ZA.

100 See part 2.2.1 of this Research Brief.





• talk to the patient about the patient’s treatment or care under the treatment plan.104

A patient’s treatment plan must state: • in general terms, an outline of the proposed treatment, rehabilitation and other

services to be provided in relation to the patient; • in specific terms, the method by which, the frequency with which, the place

where, the duration of and the persons whom, the services are to be provided; and

• the intervals for the patient’s regular assessment.105

The administrator of the authorised mental health service must ensure the patient is treated or cared for as required under the patient’s treatment plan.106

Chapter 6 of the Final Report is directed at risk management processes under the Act. Part of this discussion is directed at the existing treatment and risk management processes for ‘persons of special notification’. These persons are a particular group of forensic patients who have committed certain serious violent offences. Currently, arrangements for these persons are administrative in nature rather than legislative.107 The Review stated that it supported amendments to the Act to provide that: • the Director of Mental Health provide policies and practice guidelines for the

treatment and care of forensic patients, including persons of special notification;

• the authorised doctor have regard to the Director of Mental Health’s policies and practice guidelines for forensic patients, including persons of special notification, in preparing a patient’s treatment plan, which must include a risk management plan;

• the administrator ensure the Director of Mental Health’s polices and practice guidelines for forensic patients and persons of special notification are given effect;

• the Director monitor and audit compliance with the requirements of the Act so far as they relate to the treatment and care of forensic patients, including persons of special notification; and






• the persons of special notification category be defined in legislation in terms of the present offence types.108

The Final Report concludes that: These proposals do not change the offence types that result in a [persons of special notification] classification. Nor do they diminish the responsibility that mental health services have for ensuring that all patients who have committed serious violent offences are carefully treated and monitored.109

3.2 RELEVANT RECOMMENDATIONS

Recommendations 6.1 to 6.5 and 6.7 of the Final Report are identified as being relevant to the proposed amendments concerning risk management processes.110

Recommendation 6.1 states: That the Mental Health Act 2000 be amended to require the Director of Mental Health to provide policies and practice guidelines for the treatment and care of forensic patients, including Persons of Special Notification.

Recommendation 6.2 states: That the Mental Health Act 2000 be amended to require the authorised doctor to have regard to the Director of Mental Health’s policies and guidelines for forensic patients, including Persons of Special Notification in preparing the patient’s treatment plan, which must include a risk management plan.

Recommendation 6.3 states: That the Mental Health Act 2000 be amended to require the administrator of the authorised mental health service to ensure the Director of Mental Health’s policies and practice guidelines for forensic patients, including those relating to Persons of Special Notification, are given effect.

Recommendation 6.4 states: That the Mental Health Act 2000 be amended to provide that the Director of Mental Health monitor and audit compliance with the requirements of the Act so far as they relate to the treatment and care of forensic patients, including Persons of Special Notification.





Recommendation 6.5 states: That the Mental Health Act 2000 be amended to provide that the Persons of Special Notification category be defined in legislation in terms of the present offence types.

Recommendation 6.7 states: That the Mental Health Act 2000 be amended to require the Tribunal to obtain an independent examination and report from a psychiatrist other than the psychiatrist responsible for the patient’s treatment when making a decision about revocation of a forensic order for a Person of Special Notification.

3.3 PROPOSED AMENDMENTS

The amendments proposed by the Bill are as follows: • the Director of Mental Health will be able to approve limited community

treatment for a classified patient subject to the reasonable conditions the Director decides. The Director will also be able to withdraw such an approval if the Director is reasonably satisfied that one of the following events either has happened, or there is an unacceptable risk will happen, in relation to the patient - the patient would not return to the authorised mental health service when required, the patient would commit an offence while away from the health service, or the patient would endanger the safety or welfare of the patient or others;111

• the Director of Mental Health will be required to issue policies and practice guidelines about the treatment and care of forensic patients, including ‘special notification forensic patients’. To the extent of any inconsistency with the Act, a policy or practice guideline will be invalid;112

• ‘special notification forensic patients’ will be defined in the Act as forensic patients for whom the offence leading to the making of their forensic order was an offence against one of the following provisions of the Criminal Code: − section 300 – unlawful homicide; − section 306 – attempt to murder; − section 328A(4) – dangerous operation of a motor vehicle, but only if the

commission of the offence involved the death of another person; − section 349 - rape; or − section 351 – attempt to rape;113

111 Cl 6, proposed new s 129.

112 Cl 25, proposed new s 309A.



• the Director of Mental Health will be able to issue policies and practice guidelines about the treatment and care of patients, other than a forensic patients. To the extent of any inconsistency with the Act, a policy or practice guideline will be invalid;114

• treatment plans for patients will need to be prepared having regard to any such policies and practice guidelines;115

• treatment plans for forensic patients will also have to include a risk management plan for those patients;116

• the Mental Health Review Tribunal will be prohibited from revoking forensic orders for special notification forensic patients unless the Tribunal has ordered the patient to submit to an examination by a psychiatrist who is not an authorised psychiatrist for the patient’s treating health service and the Tribunal has obtained a report from that psychiatrist;117 and

• the administrator of an authorised mental health service will be responsible for ensuring that policies and practice guidelines issued under the Act by the Director of Mental Health are given effect.118

4 STATEMENTS BY VICTIMS AND CONCERNED PERSONS TO MENTAL HEALTH REVIEW TRIBUNAL


The Act provides for the submission and consideration of material from victims and concerned persons by both the Mental Health Court119 and the Mental Health Review Tribunal.120

In relation to the Mental Health Court, the Act provides that:






119 Mental Health Act 2000, ss 284 and 285.

120 Mental Health Act 2000, ss 464 and 465.


• in making a decision on a reference, the Court may take into account material submitted by a victim of the alleged offence to which the reference relates or another person who is not a party to the hearing of the reference (‘concerned person’);

• the material must be sworn; • the purpose of submitting the material is to help the Court make a decision on

the reference including, for example, deciding: − whether the person to whom the reference relates was of unsound mind; − whether the person to whom the reference relates is unfit for trial; − whether to make a forensic order; − whether to order, approve or revoke limited community treatment; or − what conditions the Court should impose on an order or approval for

limited community treatment; • the material may include the views of the person submitting it about:

− the behaviour of the person to whom the reference relates and the impact of their behaviour on the person submitting the material;

− the risk the person submitting the material believes the person to whom the reference relates represents to them; or

− any other matter relevant to the decision of the Court on the reference.121

In comparison, the Act provides as follows in relation to the Mental Health Review Tribunal: • in making a decision in a proceeding, the Tribunal may take into account

material submitted by a victim of the alleged offence to which the proceeding relates or another person who is not a party to the proceeding (‘concerned person’);

• the purpose of submitting the material is to help the Tribunal make a decision in the proceeding, including, for example, deciding: − whether to revoke a forensic order; − whether to order, approve or revoke limited community treatment; or − what conditions the Tribunal should impose on an order or approval for

limited community treatment; • the material may include the views of the person submitting it about:

− the conduct of the person to whom the proceeding relates and the impact of the conduct on the person submitting the material;

− the risk the person submitting the material believes the person to whom the proceeding relates represents to the person submitting the material or another person; or

− any other matter relevant to the decision of the Tribunal in the proceeding.122

121 Mental Health Act 2000, ss 284(1), (1A) and (1B).

122 Mental Health Act 2000, ss 464(1), (1A) and (1B).


There is currently no requirement that material submitted to the Mental Health Review Tribunal be sworn.

If a victim or concerned person has submitted material to the Mental Health Court, the Court must, as soon as practicable after making its decision on the reference, give the submitter and persons who were parties to the hearing of the reference: • reasons for either taking the material into account or refusing to take it into

account; and • if the material was taken into account, a statement about how the material was

taken into account.123

If a victim or concerned person has submitted material to the Mental Health Review Tribunal, the Tribunal must, after making its decision in the proceeding, if asked by a party to the proceeding or the submitter, give reasons for taking or not taking into account the material.124

Compared to the procedure in the Mental Health Court, a person who submits material to the Mental Health Review Tribunal must currently ask for the reasons to be provided. If the Tribunal did take the material into account, there is no requirement for the Tribunal to state how the material was taken into account.

The Final Report states: Victims and their families have … indicated that they are uncertain about whether their submissions are taken into account, or about the weight the Tribunal gives their submissions. After making a decision about whether or not to take into account [such a] submission, the Tribunal is only required to provide reasons for that decision to the person who submitted the material or to a party if asked to do so. It is possible that unsupported victims will not know they have a right to make a request to be advised of the reasons for a decision.

While it may be onerous for the Tribunal to have to supply reasons to all the parties when they may not have a desire or need to receive such reasons, the Review considers that where a statement has been freshly submitted by a victim or an interested person, the victim or other person should be provided with reasons as a matter of course. Otherwise, the Tribunal should continue to provide reasons on request.125






Recommendations 3.44 and 3.45 of the Final Report are identified as being relevant to the proposed amendments regarding statements by victims and concerned persons to the Mental Health Review Tribunal.126

Recommendation 3.44 states: That the statement provided to the Mental Health Review Tribunal by the victim or other interested person be sworn.

Recommendation 3.45 states: That the Mental Health Act 2000 be amended to provide that where a victim or interested person has made a fresh statement to the Mental Health Review Tribunal on a review, the Tribunal be required to provide to the victim or interested person, as a matter of course, a statement of reasons for: • taking into account a victim statement or an interested person statement and how

the statement was taken into account; or • refusing to take into account a victim statement or an interested person statement.


The amendments proposed by the Bill: • require all material submitted by victims and concerned persons to the Mental

Health Review Tribunal to be sworn;127 • require the Tribunal, as soon as practicable after making its decision in a

proceeding, to give the submitter: − the reasons for taking the material into account or refusing to take the

material into account; and − if the material was taken into account, a statement about how it was taken

into account;128 • prohibit such information provided by the Tribunal including the following

information about the patient: − the name or address of the in-patient facility at which the patient is being

detained under the Act; − if an order has been made or an approval given for limited community

treatment for the patient and the patient is residing at a place other than the


127 Cl 30, proposed new s 464(1D).

128 Cl 31, proposed new s 465(1) and (2).


patient’s treating health service – the name or address of the place, or the name or contact details of any other person residing at the place;

− the name or contact details of any relative of the patient; − information about the treatment or care of the patient at the patient’s

treating health service;129 • allow the person submitting the material to nominate someone else to receive

the information on their behalf (if no nomination is made, the Tribunal must provide the information to the person via the Director of Mental Health);130

• require the Tribunal, if asked by a party to the proceeding, to, as soon as practicable after making its decision in the proceeding, provide the reasons and any statement about how the material was taken into account (unless a confidentiality order applies); and131

• include, as a new function for the Director of Mental Health, monitoring and auditing compliance with the Act.132

5 STREAMLINING THE FORENSIC LEGAL PROCESSES


The Bill proposes a number of amendments directed at “streamlining” certain forensic legal processes.133

Currently, for patients under an involuntary treatment order or a forensic order who are charged with an offence, the Act provides for the referral by the Director of Mental Health of the matter of the patient’s mental condition relating to the offence to either the Attorney-General or the Mental Health Court.134 Matters concerning simple offences and minor indictable offences must be referred to the Attorney-


130 Cl 30, proposed new s 464(5); Cl 31, proposed new ss 465(3) and (4).

131 Cl 31, proposed new ss 465(6) and (7).

132 Cl 32, proposed new s 489(ca).




General.135 Only indictable offences of a serious nature having regard to any damage, injury or loss caused must be referred to the Mental Health Court.136

The Director must make a decision on the reference after considering the information available to the Director, including a report of a psychiatrist who has examined the patient on the arrangement of the administrator of the patient’s treating health service (a ‘section 238 report’).137 In making the examination, the psychiatrist must have regard to: • the patient’s mental condition; • the relationship, if any, between the patient’s mental illness and the alleged

offence and, in particular, the patient’s mental capacity when the alleged offence was committed having regard to the Criminal Code, section 27 (insanity);

• the likely duration of the patient’s mental illness and the likely outcome of the patient’s treatment;

• the patient’s fitness for trial; and • anything else the psychiatrist considers relevant.138

A 21 day timeframe applies in which the administrator must provide the psychiatrist’s report to the Director of Mental Health after being notified that the procedures in chapter 7, part 2 of the Act apply to the patient.139 The Director then has 14 days to make a decision on a reference.140

The Final Report discusses problems with compliance to both of these timeframes. For example, in 2005-06, only 21% of reports were provided to the Director within the 21 day timeframe, and the average time taken by the Director to refer matters to either the Attorney-General or the Mental Health Court was 29 days.141

In terms of delays in the provision of section 238 reports to the Director of Mental Health, and in the Director subsequently making a decision on a reference, the Final Report states:

135 Mental Health Act 2000, ss 240(3) and (4).








There can be little doubt that in part the delays are attributable to staff turnover and to work pressure on psychiatrists. The Director’s annual report indicates that another problem is delay in receiving information from the Queensland Police Service (QPS) and the Office of the Director of Public Prosecutions (ODPP). The Review has been advised section 238 reports are often prepared in the absence of detailed particulars of the circumstances of the offence from the police, relying solely on the account of events by the patient and possibly the patient’s family. It appears there is no systematic process for the provision of the offence particulars to authorised mental health services. The preparation of quality section 238 reports is dependent on prompt access to information held by police including witness statements and criminal histories of patients. … The QPS has recommended that legislative amendment be made to remove the legislative barriers preventing QPS from providing the relevant information to the treating psychiatrist for the purpose of a section 238 report. This is supported by the Review and needs to be undertaken as a matter of priority.142

Despite the 14 day timeframe which generally applies to a decision of the Director on a reference, if the Director reasonably believes a patient is unfit for trial but will likely be fit for trial in less than two months, the Director may defer referring the matter for a period of two months.143 The Final Report recommends allowing the Director to extend this timeframe by a further two months.144

If the Director of Mental Health refers a matter to the Attorney-General, the Attorney-General must decide within 28 days whether to: • continue proceedings according to law; • discontinue proceedings; or • refer the matter of the patient’s mental health to the Mental Health Court.145

The Final Report makes the following point about the reference of matters to the Attorney-General:

The statutory responsibility for determining matters referred by the Director currently rests with the Attorney-General. In practice the Attorney-General always obtains the advice of the Director of Public Prosecutions (DPP) on the matters under consideration. Large volumes of decisions, many of which relate to relatively minor offences, are required to be made each year. It is unusual for a minister to be required to be involved to this extent at this level of decision making. The DPP is an independent officer of the Crown who is well qualified to make decisions of this kind.






If the DPP were to perform the role that would remove a burden from the Attorney-General, avoid double handling and reduce delay.

Consequently, the Review recommends that the Act be amended to enable the DPP, rather than the Attorney-General, to make decisions about continuing or discontinuing matters referred by the Director of Mental Health. To assist the DPP in making these decisions, it would be helpful if the Act were to require the Director of Mental Health to provide an assessment of the matter, including any recommendations to assist the DPP in making a decision.146

In terms of the referral of matters by the Director of Mental Health, the Review agreed that: • summary offences and minor indictable offences should continue to be referred

to the Attorney-General (or the DPP, as proposed by the Review); and • indictable offences of a serious nature should continue to be referred to the

Mental Health Court.147

However, the Review discussed a concern with cases involving serious offending where the psychiatric assessment indicates that the person was of sound mind at the time the offence was committed and is fit for trial. The Final Report states:

Considerable loss of time is likely to occur in unnecessary Mental Health Court proceedings if the matter ultimately proceeds to trial in the criminal courts. In addition the matters add to the already large backlog of cases before the Mental Health Court.

During the 2005-06 financial year, of the 262 matters heard by the Mental Health Court, there were 18 references where the examining psychiatrists’ report indicated that the person was not of unsound mind and fit for trial. The person was still required to go to the Mental Health Court, where the average delay was 10 months. Time could be saved if the matter were referred to the Attorney-General (or the DPP if [an earlier recommendation] is implemented) for decision rather than the Court.

The contrary view is that referral to the Court is a significant statutory safeguard which allows the defendants access to assessment by Court appointed psychiatrists.

The Review notes that the law officer to whom it is referred will consider whether there is a basis for it being heard in the Mental Health Court. Furthermore, there is ability in the Act for the patient or the patient’s legal advisers to refer the matter to the Court if they consider that should happen.

As a further safeguard the Review would support the Director of Mental Health having the ability to obtain a second psychiatric report where he or she considered that necessary for the making of a decision on a referral.

After considering these matters and the need to reduce delay in the Court, the Review favours legislating for the Director of Mental Health to refer serious




indictable offences to the DPP, where the Director reasonably believes a person is fit for trial and the person was not of unsound mind at the time of the alleged offence.148


Recommendations 4.3 and 4.6 to 4.10 and 3.45 of the Final Report are identified as being relevant to the proposed amendments directed at streamlining forensic legal processes.149

Recommendation 4.3 states: That priority be given to legislative amendments to facilitate the release of information, including witness statements and patients’ criminal histories, by the Queensland Police Service to relevant people within Queensland Health for the purpose of preparing section 238 reports.

Recommendation 4.6 states: That the Mental Health Act 2000 be amended to substitute the Director of Public Prosecutions for the Attorney-General as the person to whom the Director of Mental Health may refer the matter of the mental condition of the patient under section 240 and the person who is the decision maker under section 247.

Recommendation 4.7 states: That in referring the matter, the Director of Mental Health be required to provide an assessment of the matter to the Director of Public Prosecutions (DPP) including any recommendation to assist the DPP in making a decision under section 247 of the Mental Health Act 2000.

Recommendation 4.8 states: That the Mental Health Act 2000 be amended to enable the Director of Mental Health to extend for an additional two month period the deferment period of a person not fit for trial at the end of the first two month deferment period if the Director of Mental Health reasonably believes that the person will be fit for trial within another two month period.

Recommendation 4.9 states: That the Mental Health Act 2000 be amended to allow the Director of Mental Health, notwithstanding section 240(4), to refer a matter to the Director of Public Prosecutions rather than to the Mental Health Court where he or she reasonably believes that the person is fit for trial and was not of unsound mind at the time of the offence.




Recommendation 4.10 states: That the Mental Health Act 2000 be amended to allow the Director of Mental Health to obtain a further psychiatrist’s report where he or she considers the report is necessary for the making of a decision on a reference by the Director of Public Prosecutions under section 247.


The key amendments proposed by the Bill will: • Allow the administrator of a patient’s treating health service, upon being

notified that a person charged with an offence is subject to an involuntary treatment order or a forensic order, to ask the Commissioner of the Police Service or the DPP to provide copies of certain documents relating to the offence.150 This amendment is directed at assisting in meeting the timeframes for the preparation of the section 238 report on patients and the consideration of those reports by the Director of Mental Health in making a decision about the referral of a matter.151 The documents that may be requested are: − indictment or bench charge sheets; − summaries or particulars of allegations; − witness statements; − transcripts of proceedings; and − the person’s criminal history.152 If such a request is made, it must be complied with as soon as practicable.153 The requirement will not apply to information contained in a document if the Commissioner or the DPP reasonably considers that it either would not be in the public interest to give the information or giving the information could reasonably be expected to: − prejudice the investigation of a contravention or possible contravention of a

law in a particular case; − prejudice an investigation under the Coroners Act 2003 (Qld); − enable the existence or identity of a confidential source of information, in

relation to the enforcement or administration of a law, to be ascertained; − endanger a person’s life or physical safety; or



152 Mental Health Act 2000, schedule 2 (definition of ‘brief of evidence’).

153 Cl 12, proposed new s 237A(2).


− prejudice the effectiveness of a lawful method or procedure for preventing detecting, investigating or dealing with a contravention or possible contravention of a law.154

The requirement will also not apply to information, contained in a document that: − is ‘sensitive evidence’ as defined in the Criminal Code, section 590AF; − another Act or law would prevent the prosecution from giving to an accused

person, or a lawyer acting for an accused person, during a proceeding for an offence; or

− identifies witnesses to the alleged commission of the offence or consists of contact details for the witnesses.155

• Require the Director of Mental Health to refer the matter of a patient’s mental condition relating to an offence with which the patient has been charged to either the DPP (rather than the Attorney-General, as is currently the case) or the Mental Health Court.156

• Provide that, in addition to referring to the DPP simple offences and minor indictable offences, the Director of Mental Health may also refer to the DPP serious indictable offences if the Director reasonably believes a patient is fit for trial and was not of unsound mind when the alleged offence was allegedly committed.157

• Allow the Director of Mental Health to defer referring a matter to either the DPP or the Mental Health Court for a further two months (in addition to the two months already provided for) if the Director still reasonably believes that the patient is unfit for trial but is likely to be fit for trial in less than two months. Notice of the deferral will be given to the DPP, rather than the Attorney-General as is currently the case.158

• Require the reference of a matter by the Director of Mental Health to the DPP to be accompanied by the assessment of the matter by the Director, including any recommendations of the Director.159



156 Cl 15, proposed new s 240. Note also that the Act will provide that a reference to the DPP will include a person who is authorised in writing by the DPP to exercise the DPP’s powers (cl 11, proposed new s 235A).


158 Cl 16, proposed new s 241.



• Allow the Director of Mental Health, after consider a section 238 psychiatrist’s report, to arrange for the patient to be examined by another psychiatrist, and obtain a report from the other psychiatrist on the examination.160 If this occurs, the additional report must also be considered by the Director in making a decision about referring a matter. It must also be subsequently provided to the DPP or the Mental Health Court (as applicable).



APPENDIX A - REVIEW OF THE QUEENSLAND MENTAL HEALTH ACT 2000, RECOMMENDATIONS



RECENT QPL RESEARCH PUBLICATIONS 2007 2007/01 Homework for the 21st Century Feb 2007 2007/02 Tackling Graffiti – Summary Offences and Other Acts Amendment Bill 2006 (Qld) Feb 2007 2007/03 Ban on Speed Camera Alerts: Summary Offences and Other Acts Amendment Bill 2006 (Qld) Feb 2007 2007/04 Random Drug Driving Tests under the Transport Legislation and Another Act Amendment Bill

2006 (Qld) Feb 2007

2007/05 ‘Wrongful Life’: the High Court decisions in Harriton v Stephens and Waller v James; Waller v Hoolahan

Feb 2007

2007/06 Comprehensive Regulation of the Security Industry: the Security Providers Amendment Bill 2006 (Qld)

Feb 2007

2007/07 Harmonisation of Sports Drug Testing Legislation – the Sports Drug Testing Amendment Bill 2006 (Qld)

Mar 2007

2007/08 ‘Ice Pipes’: Prohibition on Sale, Supply and Display under the Health and Other Legislation Amendment Bill 2007 (Qld)

Mar 2007

2007/09 Protection for Good Samaritans under the Civil Liability (Good Samaritan) Amendment Bill 2007 (Qld)

Apr 2007

2007/10 Implementing Recommendations of the Review of the Mental Health Act 2000 (Qld); the Health and Other Legislation Amendment Bill

Apr 2007

2007/11 Our Binge Drinking Culture Apr 2007 2007/12 Restrictions on Young Drivers Under the Transport Legislation and Another Act Amendment Act

2007 (Qld) Apr 2007

2007/19 Smoking in Cars Carrying Children Jul 2007 2007/23 Trail Bikes – Issues and Challenges Sep 2007 2007/25 Amending Queensland’s Cultural Heritage Protection Legislation: the Queensland Heritage and

Other Legislation Amendment Bill 2007 (Qld) Oct 2007

2007/27 Housing Affordability Oct 2007 2007/30 Implementing Further Recommendations of the review of the Mental Health Act 2000 (Qld): the

Health and Other Legislation Amendment Bill 2007 (Qld) Oct 2007

Research Papers are available as PDF files: • to members of the general public, the full text of Research Briefs is now available on the parliamentary web site, URL,

www.parliament.qld.gov.au/publications • www.parliament.qld.gov.au/Library/Query.exe – Library Research Briefs

A Subject Index to Research Publications is available at the following site: www.parliament.qld.gov.au/view/publications/publications.asp?area=research&LIndex=4&SubArea=s_aborigines&Bindex=0&Barea=searchOrders may be sent to the Executive Assistant – Library: (07) 340 67275

http://www.parliament.qld.gov.au/publications

http://www.parliament.qld.gov.au/Library/Query.exe

This Publication:

Implementing Further Recommendations of the review of the Mental Health Act 2000 (Qld): the Health and Other Legislation Amendment Bill 2007 (Qld) (QPL, October, 2007)

RBR 2007/30

Related Publications:

Implementing Recommendations of the Review of the Mental Health Act 2000 (Qld); the Health and Other Legislation Amendment Bill (QPL, April 2007)

RBR 2007/10

The Health Legislation Amendment Bill 2001 and the amendments to the Mental Health Act 2001 (QPL, October 2001)

RBR2001/25

The Queensland Mental Health Bill 2000: Involuntary Assessment and Treatment Procedures (QPL, April 2000)

RBR2000/04

The Queensland Mental Health Bill 2000: Reforms to Victims’ Rights in Relation to Proceedings and Notification Orders (QPL, April 2000)

RBR2000/02

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