Mental illness

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 and subject to either a court secure treatment order (CSTO) or a secure treatment order (STO) (s 3). A security patient can be:

• a person found guilty of an offence where the court has sentenced them by way of a CSTO, for a specified duration, under section 94A of the Sentencing Act, in accordance with part 10.3 of the MHWA; 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 Justice Secretary (‘Department of Justice’) under part 10.2 of the MHWA.

  Secure treatment orders

  An STO is an order made by the Justice Secretary that enables a person to be:
• compulsorily taken from a prison (or other place of confinement) and transported to a designated mental health service; and
• detained and treated in the designated mental health service (s 534). The criteria for making an STO are:
• the person has mental illness;
• because the person has mental illness, they need immediate treatment to prevent: – serious deterioration in their mental or physical health; or – serious harm to them or to another person;
• the immediate treatment will be provided to the person if they are made subject to a STO; and
• there is no less restrictive means reasonably available to enable the person to receive the immediate treatment (s 535). The Justice Secretary may make this order if:
• the person is detained in a prison (or other place of confinement); and
• they have been examined by a psychiatrist and the Justice Secretary is satisfied (from the psychiatrist’s report and any other evidence that the below criteria apply); and
• the Justice Secretary has received a report from the authorised psychiatrist for the designated mental health service to which it is proposed that the person be transported – where this report: – recommends the making of the STO, and – states that there are facilities/services available at the designated mental health service for the detention and treatment of the person. After the order is made, the Justice Secretary must, as soon as practicable, ensure that reasonable steps are taken to inform the person of the order and explain its purpose and effect. The Justice Secretary does not have the power to make the STO if the person is already subject to a court secure treatment order (CSTO) and is detained in a prison or other place of confinement.

  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. 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). A person will cease to be a security patient when:
• their sentence of imprisonment or detention expires;
• any CSTO to which the person was subject expires;
• the person is granted bail;
• a court releases the person from custody;
• an order has been made that the person be released on parole and the time for release has occurred.

A security patient subject to a CSTO can apply to the MHT (under s 542) 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 537).

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 section 69 of the MHWA. Security patients also have the right to have their advance statement of preferences taken into account at various times, and their nominated support person consulted and informed of various matters at relevant times.

The MHWA 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 designated mental health service. The MHWA also deals with transfer applications to the MHT. For more information, see the Mental Health and Wellbeing Act 2022 handbook (www.health.vic.gov.au/mental-health- and-wellbeing-act-handbook).