The Law Handbook 2024

812 Section 8: Disability, mental illness and the law For a forensic patient on a custodial supervision order, a grant of extended leave is the first step before applying to vary their order to a non-custodial supervision order (s 32(3) CMIUT Act). Transfers A forensic patient may be transferred to another designated mental health service by the Chief Psychiatrist if it is necessary for the forensic patient’s treatment (s 308(1) MHA 2014). If a patient (subject to a direction made under section 307 or 308 of the MHA 2014) objects to the transfer, an application for review can be made to the Forensic Leave Panel by the patient, the patient’s guardian or the Secretary to the Department of Health (Vic) within 20 business days after the direction is made (s 310(1), (2)). The Forensic Leave Panel must, as soon as practicable after an application for a review is received, hear and determine the application (s 310(3)). If the Forensic Leave Panel is not satisfied that the transfer of the forensic patient to another designated mental health service is necessary for that person’s treatment, it must grant the application (s 310(5)(a) MHA 2014). Alternatively, the Forensic Leave Panel may refuse the application if it determines that such a transfer is necessary for the patient’s treatment (s 310(5)(b) MHA 2014). A forensic patient can request a transfer and may invoke section 12 of the Human Rights Charter (the right to freedom of movement) to support their application. The transfer of forensic patients detained under the Crimes Act (Cth) needs approval by the Commonwealth Attorney-General (s 308(2) MHA 2014). Interstate transfer of forensic patients Under the CMIUT Act, a Victorian forensic patient can be transferred to a participating state if: • the Chief Psychiatrist certifies in writing that the transfer is beneficial to that person; • the relevant Victorian Government minister is satisfied the transfer is permitted under a corresponding law in the participating state; • the relevant Victorian Government minister is satisfied that the person subject to the order has given their informed consent to the transfer; or • if the person subject to the order is unable to give consent, the relevant Victorian Government minister is satisfied that the person’s guardian has given informed consent to the transfer (s 73D). Under the CMIUT Act (s 73D), a forensic patient can be transferred from a participating state to Victoria if: • the transfer is permitted under a corresponding law in the participating state; • the relevant Victorian Government minister has agreed to the transfer (s 73E(1)); • the Chief Psychiatrist has certified in writing that the transfer is for the person’s benefit, and there are suitable facilities available for the custody, care or treatment of that person, as the case requires; • the relevant Victorian Government minister is satisfied the transfer is necessary for the maintenance or re-establishment of family relationships, or relationships with the person’s critical support person(s); • the relevant Victorian Government minister is satisfied that the person has given their informed consent to the transfer, or if incapable of giving consent, that their guardian gives informed consent (s 73E(2)); • the relevant Victorian Government minister determines that the person is detained in an appropriate place, as if the person were subject to a custodian supervision order; and • the person is absent on leave from an appropriate place, determined by the relevant Victorian Government minister, on any conditions determined by that minister, as if the person was subject to a custodial supervision order, and had been granted extended leave (s 73E(3)). An ‘appropriate place’ is defined in section 3 of the CMIUT Act as ‘a designated mental health service, a residential treatment facility, or a residential institution’. Apprehension and transfer of forensic patients who abscond interstate Queensland, New South Wales, the Australian Capital Territory and Victoria are the only states and territories to have reached ministerial agreement about the apprehension and transfer of forensic patients who have absconded interstate. The law in this area is complicated and may change. For more information, contact the Mental Health Legal Centre (see ‘Contacts’ at the end of this chapter).