New law and terminology defines mental illness in Victoria with significant changes to the legal framework that assesses and treats people with a mental illness. The Mental Health Tribunal is the independent statutory tribunal providing the safeguard for the making of compulsory treatment orders. The new law seeks to minimise compulsory mental health treatment and ensure that people with a mental illness are supported to make or participate in decisions about their assessment, treatment and recovery.

Contributor

Lucy Carter

Lawyer, Mental Health Legal Centre

Security patients

Last updated

1 July 2020

Who are security patients?

Security patients are people who have committed a criminal offence and have been ordered to be detained in a designated mental health service for psychiatric treatment. A security patient can be:

  • a person found guilty of an offence where the court has sentenced them by way of a court secure treatment order (CSTO), for a specified duration, under section 94A of the Sentencing Act, in accordance with Part 11, Division 2 of the MHA 2014; or
  • a person imprisoned or detained in prison or elsewhere (e.g. a remand centre, police jail, youth residential centre or youth justice centre) who is taken to and detained and treated at a designated mental health service under a secure treatment order (STO) made by the Secretary of the Victorian Government Department of Justice and Community Safety (‘Department of Justice’) under Part 11, Division 3 of the MHA 2014.

Court secure treatment orders

Before a CSTO can be made, a psychiatrist must examine the person and be satisfied that all the following criteria in section 94B(1)(c) of the Sentencing Act are met:

  • the person has mental illness;
  • because of the mental illness, they require treatment to prevent serious deterioration in their mental or physical health or to prevent serious harm to the person or someone else;
  • the treatment will be provided if the person is put on a CSTO; and
  • there is no less restrictive means reasonably available to enable the person to receive the treatment.

The authorised psychiatrist of the relevant approved mental health service must also recommend the order be made, and confirm the availability of facilities and services for the person’s treatment. Almost identical criteria exist in section 276 of the MHA 2014 for making a STO.

In determining whether to make a CSTO, the court must consider the person’s current mental condition, their medical, psychiatric and forensic history and their social circumstances (s 94B(1)(b) Sentencing Act).

Challenging detention and treatment

A security patient subject to a CSTO can apply to the MHT (under s 272 MHA 2014) for a hearing to challenge their detention and treatment. Similarly, a security patient on a STO can apply for that order to be revoked (under s 278). 

If the CSTO or STO is discharged, the person is taken into the custody of the Secretary of the Department of Justice; or, if parole has been granted, they are released on parole.

Security patients also have the right to seek a second psychiatric opinion under Part 5, Division 4 of the MHA 2014. Security patients also have the right to have their advance statement taken into account at various times, and their nominated person consulted and informed of various matters at relevant times.

Leave and transfers

The MHA 2014 sets out a range of processes and criteria to be applied for security patients on matters such as leave of absence, monitored leave, and transfer to another designate mental health service. The MHA 2014 also deals with transfer applications to the MHT. For more information, see the DHHS’s handbook to the MHA 2014 (available at www2.health.vic.gov.au/mental-health).

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