The Law Handbook 2024

Chapter 8.3: Disability and criminal justice 813 Emergency apprehension of people subject to a non- custodial supervision order Section 30 of the CMIUT Act provides for the emergency apprehension of people who are subject to a non-custodial supervision order. People who have the power to apprehend those on an emergency apprehension order are: • the person having supervision of the person under the order; • a police officer; • an ambulance officer; • a person who is a member of a prescribed class, as defined in the Crimes (Mental Impairment and Unfitness to be Tried) Regulations 2009 (Vic); these regulations expand the list of people who can carry out an emergency apprehension order to: – registered medical practitioners, nurses and psychologists, – social workers and occupational therapists employed by an approved public mental health service or a community mental health service. Sentencing people with disability A person with a mental illness or intellectual disability who has been found guilty of an offence can be sentenced to any of the usual range of penalties. Additional sentencing options are available under the Sentencing Act. These sentencing options should be looked at with reference to the MHA 2014. Mentally ill offenders There are additional sentencing options for people with a mental illness (see Part 5 Sentencing Act). The types of orders available to courts and the circumstances in which orders can be applied have been significantly streamlined by the MHA 2014. Court assessment orders There are two types of court assessment orders: • a community court assessment order; • an inpatient court assessment order (see s 90). These are coercive orders that differ in terms of how the assessment is undertaken. A community court assessment order compels a person to be examined by an authorised psychiatrist to determine whether: • the person should be made subject to a temporary treatment order ( TTO ) to be compulsorily treated in the community or taken to, and detained and treated in, a designated mental health service (see s 45(1) MHA 2014); • the person satisfies the criteria in relation to the making of a court secure treatment order ( CSTO ). An inpatient court assessment order compels a person to be taken to and detained at a designated mental health service. Once there, the person is to be examined by an authorised psychiatrist to determine whether: • the person should be made subject to a TTO (see s 45 MHA 2014); • the person satisfies the criteria in relation to the making of a CSTO. The court must be satisfied that: • the person appears to have a mental illness; • because the person appears to have a mental illness, the person appears to need immediate treatment to prevent: – serious deterioration in the person’s mental or physical health, or – serious harm to themselves or another person, and • if the person is made subject to a court assessment order, they can be assessed; • there is no less restrictive means reasonably available to enable the person to be assessed. A community court assessment order comes into force when the order is made, and remains in force for seven days (see s 39(2) MHA 2014). An inpatient court assessment order comes into force seven days after the day on which the person who is subject to the order arrives at the designated health service (see s 39(3) MHA 2014). The aim of a court assessment order is to enable the court to promptly receive a report about the approp­ riate approach to sentencing the person concerned. After the court has considered a report made by an authorised psychiatrist, having examined the person subject to a court assessment order, the court