The Law Handbook 2024

814 Section 8: Disability, mental illness and the law can impose either a TTO or a CSTO, or proceed to sentence the person. The court must deduct from the duration of the CSTO or the sentence any period of time that the person was detained under the court assessment order. Court secure treatment order A CSTO (s 94A Sentencing Act) enables the person who is subject to the order to be compulsorily taken to, detained and treated at a designated mental health service. CSTOs are available when (s 94B Sentencing Act): • the court would have sentenced the person to imprisonment if they did not have a mental illness; and • the court has considered the person’s current mental condition, and any medical, mental health and forensic history and social circumstances; • there is no less restrictive means reasonably available to enable the person to receive treatment; and • the person has been examined by a psychiatrist and the court is satisfied by the psychiatrist’s report and any other evidence that show: – the person has mental illness; and – because the person has mental illness, the person needs treatment to prevent serious deterioration in their mental or physical health or serious harm to themself or to another person; and – the court has received a report from the authorised psychiatrist at the designated mental health service in which the person will be detained and treated, that recommends an order be made, and that states that there are facilities and services available at the designated mental health service for the detention and treatment of the person. A person subject to a CSTO must be taken to a designated mental health service and become a security patient (s 94C Sentencing Act). The order must specify its duration, which must not exceed the period of imprisonment that the person would have received had the order not been made. A non- parole period must be fixed. If a person is discharged as a security patient before the end of the period specified by the CSTO, the unexpired portion of the period must be served in a prison or other place of confinement, unless the person is released on parole. A person who is subject to a CSTO may apply to the Mental Health Tribunal to determine whether the criteria set out in section 94B(1)(c) of the Sentencing Act applies to them (s 272 MHA 2014). The people who can apply on behalf of a security patient are set out in section 272(2) of theMHA 2014. If the Mental Health Tribunal discharges a person as a security patient, the unexpired portion process described above applies. Sentencing orders made with reference to the repealed MHA 1986 are subject to transitional provisions (see ss 94E–94I Sentencing Act). NOTE See Chapter 8.4: Mental illness, for the general rights of patients. For further information on conditions applying to these orders, see ‘Security patients’ in Chapter 8.4: Mental illness. Despite the legislative framework and the existence of some specialist forensic mental illness facilities, it is often very difficult to secure a bed for a person with mental health issues who has been sentenced to imprisonment. This means that acutely unwell prisoners may remain in the prison system. In all prisons, mental health care is provided by general practitioners and qualified mental health nurses. Most prisons also have specialist support from visiting psychiatrists. At the Melbourne Assessment Prison and the Dame Phyllis Frost Centre, psychiatrists and qualified mental health nurses provide specialist mental health care to the prisoners. Specialist units at both prisons also provide assessment and treatment for prisoners with serious psychiatric conditions. Prisoners who require involuntary mental health care are transferred to the Thomas Embling Hospital under the MHA 2014. Imprisoned people with a mental illness can contact Victoria Legal Aid or the Mental Health Legal Centre for specialist legal advice and assistance (see ‘Contacts’ at the end of this chapter). Intellectual disability A court is entitled to sentence an intellectually disabled offender to any of the usual range of penalties. In addition, provisions contained in the Sentencing Act (Part 3BA Division 2 ss 80–83) provide further sentencing options, such as a justice plan condition (s 80), or a residential treatment order (s 82AA).