CHAPTER 5 - CLASSIFIED PATIENTS · Chapter 5 | Classified patients 5-5 detained in a watch-house, correctional facility, or youth detention centre as a result of being charged with

Resource Guide (May 2016)

Chapter 5 | Classified patients 5-1

CHAPTER 5 - CLASSIFIED PATIENTS

1. Introduction ............................................................................ 5-4

1.1 Director of Mental Health resources

2. Processes leading to classified patient admission ............. 5-4

2.1 When classified patient provisions apply

2.2 Classified patient assessment documents

Recommendation for assessment

Agreement for assessment

2.3 Person before a Court

Court assessment order

If a Court assessment order is not made

2.4 Person in custody

Custodian’s assessment authority

Persons detained without charge

Persons held in detention under the Migration Act 1958 (Cth)

2.5 Taking the person to an authorised mental health service

3. Admission and detention of classified patients ................ 5-11

3.1 Detention as a classified patient

3.2 Effect on legal proceedings

Suspension of legal proceedings

Providing information to the Court

Commonwealth offences

3.3 Administrator responsibilities on admission

Review of admission documents

Notifications

Classified patient photographs

3.4 Notification to victims

4. Initial assessment ................................................................ 5-15

4.1 Preparing an absent without permission response plan



4.2 Need for involuntary treatment order

Patient meets treatment criteria

Patient already on an involuntary treatment order or forensic order

4.3 Need for detention at the service

Patient needs to be detained at the service

Patient does not need to be detained at the service

5. Ongoing treatment and review ............................................ 5-17

5.1 Regular clinical review by authorised psychiatrist

5.2 Move and transfer

5.3 Limited community treatment and temporary absence

Child safety issues

5.4 Absence without permission

5.5 Involuntary patient summary

5.6 Decision by authorised doctor that patient does not need to be detained for treatment

Implications for legal processes – classified patients charged with an offence

Consideration of bail – classified patients charged with an offence

Ensuring appropriate clinical arrangements on return to custody

6. Ceasing classified patient status ........................................ 5-21

6.1 When patient ceases to be a classified patient

6.2 Procedure for returning classified patients to a Court or custody

When return to a Court or custody processes apply

Return to a Court or custody

6.3 Procedure at end of sentence or parole

6.4 Effect of ceasing classified patient status on treatment



Follow up of patients discharged

6.5 Administrator responsibilities

7. Detention during trial ........................................................... 5-27

8. Flowcharts ............................................................................ 5-28

Resource Guide (2014)


The provisions of the Act summarised below can be read in full in the Mental Health Act 2000, Chapter 3 (Persons before a Court or in custody requiring assessment or detention).

1. Introduction The classified patient provisions of the Mental Health Act 2000 (the Act) enable a person to be admitted to an authorised mental health service from a Court or place of custody (for example, watch-house or correctional facility) to receive assessment and treatment for mental illness.

The provisions authorise the person’s detention as a classified patient. Note that the provisions do not authorise involuntary treatment. A classified patient may consent to treatment or be treated under an involuntary treatment order or forensic order (other than a disability forensic order) (see chapter 4 of the Resource Guide). The patient’s classified patient status may relate to more than one criminal justice process. In such circumstances, the patient’s classified patient status may continue even though a particular criminal justice process has been finalised. For information about how charges are dealt with, see chapter 6 of the Resource Guide.

1.1 Director of Mental Health resources Director of Mental Health resources of particular relevance to this chapter include:

Fact sheet 4 – Classified patients

Fact sheet 9 – Classified patient information orders and forensic information orders

Patient information sheet - Information for classified patients

Patient information sheet - Information for classified patients about classified patient information orders

2. Processes leading to classified patient admission

2.1 When classified patient provisions apply The classified patient provisions apply when a person is:

appearing before a Court in relation to a simple or indictable offence;



detained in a watch-house, correctional facility, or youth detention centre as a result of being charged with or convicted of an offence (including a Commonwealth offence); or

held in lawful custody or lawfully detained without charge under an Act prescribed under a mental health regulation.

The classified patient provisions apply to adults and young persons (i.e. a person under 17 years of age).

2.2 Classified patient assessment documents

The following documents are required to authorise a person’s admission as a classified patient:

recommendation for assessment;

agreement for assessment; and

Court assessment order or custodian’s assessment authority.

Recommendation for assessment (s50-52) The recommendation for assessment can be made by a doctor or authorised mental health practitioner. The recommendation for assessment form and the requirements for completing the form are the same as applies for involuntary assessment as outlined in chapter 3 of the Resource Guide. However, under the classified patient provisions, one criterion does not apply. In particular, the doctor or authorised mental health practitioner does not need to be satisfied that the person lacks capacity to consent or has unreasonably refused to consent to the assessment. This exception is necessary to enable a person who is before a Court or in custody and consenting to assessment to access admission as a classified patient. The recommendation for assessment is valid for seven (7) days.

A decision to initiate the classified patient provisions i.e. through a recommendation for assessment should be reflective of clinical need and should not be impacted by current authorised mental health service bed availability, the person’s custodial status and/or status under the Mental Health Act or their existing relationship with an authorised mental health service.

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Agreement for assessment (s53-56) Admission as a classified patient requires the administrator, or in specified circumstances, the Director of Mental Health (the Director), to approve the person’s admission to the service. This approval is given with an agreement for assessment. The agreement for assessment is valid for seven (7) days after it is made. Agreement for assessment by administrator An administrator may give an agreement for assessment if the administrator is satisfied the service has the capacity to carry out the assessment. For an authorised mental health service other than a high security unit, the asministrator must be satisfied that the person’s assessment at the service does not represent an unacceptable risk to the safety of the person or others. In making the decision, the administrator must have regard to the persons:

criminal and psychiatric history;

current treatment and security requirements. In most instances, the doctor or authorised mental health practitioner who makes the recommendation for assessment (or their proxy) will contact the administrator of the local or most clinically appropriate authorised mental health service to discuss the agreement for assessment. The doctor or authorised mental health practitioner should ensure information relevant to the administrator’s decision is provided. Deciding the most appropriate authorised mental health service Decisions about the most appropriate authorised mental health service for a person who requires admission as a classified patient should be determined on a case by case basis. In the first instance, consideration should be given to whether the patient requires admission to a high security inpatient service. Decisions about whether a patient requires high security inpatient care must include consideration of:

the nature of offence/s for which the patient has been charged or convicted;

the patient’s criminal history;

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the patient’s treatment, care and security requirements;

risk assessment; and

community safety.

The administrator of a high security unit must obtain the Director’s approval (section 53(2)) before giving an agreement for assessment for:

a young person (i.e. a person under 17 years of age); or

a person charged only with a simple offence.

If the person does not require admission to a high security inpatient service, the decision about the most appropriate authorised mental health service for a person who requires admission as a classified patient should be based on the following considerations:

if the patient has a history of care with an authorised mental health service/s (including recency and duration of contact), in particular if the patient is an existing patient of an authorised mental health service (to enable continuity of care);

the locality with which the patient specifically identifies i.e. community address, proximity to family or support persons; and

geographical distance to any proposed service and the patient’s fitness for travel.

If none of the above applies, other relevant factors such as the location of the Court which dealt with the patient’s charges and location of key supports in the community should be considered. If there is no preferred authorised mental health service based on the above, admission should be negotiated with the nearest, most appropriate authorised mental health service. If the administrator of the proposed authorised mental health service does not give agreement for the assessment, the administrator of this service will assist to secure agreement at an alternative service. The administrator must indicate the non-agreement and the reasons for the non-agreement (for example, unacceptable risk to the safety of the person or others) on the agreement for assessment form.

The Director or delegate must be immediately advised via the classified patient admission documents if administrator of the proposed authorised mental health service does not give agreement for the assessment.

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Accessing a hospital bed If the proposed authorised mental health service does not have a bed available at the time that the recommendation for assessment is made but it is understood that a bed will become available in the near future, it may be in the interests of the patient or pragmatic for the Prison Mental Health Service and the relevant authorised mental health service to consult about a reasonable timeframe for the patient’s admission to occur. If the proposed authorised mental health service cannot provide a bed within a reasonable timeframe, taking account of the clinical needs of the patient, it is the joint responsibility of this authorised mental health service and the Prison Mental Health Service to negotiate access to an appropriate alternative authorised mental health service. In circumstances of urgent clinical need, all other appropriate authorised mental health services should be contacted for the purpose of seeking a bed. The flow chart at the end of this chapter sets out the processes for decision making in relation to admission and transfer of a classified patient to an authorised mental health service. Agreement for assessment by the Director The Director may give an agreement for assessment for a person at a public sector authorised mental health service if an authorised mental health service administrator does not give agreement for the person’s assessment. Note that an administrator of a high security unit must obtain the Director’s approval (section 53(2)) before giving an agreement for assessment for:

a young person (i.e. a person under 17 years of age); or

a person charged only with a simple offence.

In these circumstances, the Director’s approval may be provided by way of the agreement for assessment or other documentation. The factors relevant to the administrator’s decision (i.e. unacceptable risk to the safety of the person or others) apply equally to the Director’s decision. Where the Director considers making an agreement for assessment, the Director’s office will contact the administrator of the relevant service.



2.3 Person before a Court (s57-59)

Court assessment order Where a person appears before a Court charged with a simple or indictable offence, the Court may make a Court assessment order if:

a recommendation for assessment and agreement for assessment in force for the person are given to the Court; and

the Court is satisfied the person should be detained in an authorised mental health service for assessment.

Facsimile copies of the recommendation for assessment and agreement for assessment may be provided to the Court. A Court assessment order must state the authorised mental health service where the person’s assessment is to be carried out. On the making of the Court assessment order for the person, the Court must:

adjourn the proceedings for the offence; and

remand the person accordingly.

If court assessment order is not made If the Court is satisfied the person can be assessed other than as an inpatient of an authorised mental health service, the Court must:

remand the person in custody or grant the person bail under the Bail Act 1980; and

ensure arrangements are made for the person’s assessment. In these circumstances the Court is responsible for arranging assessment of the patient (for example, at a community mental health service).

2.4 Person in custody (s64-66)

Custodian’s assessment authority

Provisions authorising a person’s admission to an authorised mental health service from lawful custody apply to:

a person charged with an indictable offence (including a Commonwealth offence) who is in custody awaiting the start or continuation of proceedings for the offence;

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a person committed for trial or sentence in relation to an indictable offence who is in custody pending appearance at a criminal sitting of the Supreme, District or Children’s Court;

a person charged with a simple offence who is in custody awaiting the hearing of the complaint; or

a person serving a sentence of imprisonment or detention for a period under a Court order.

The person’s custodian (i.e. the person who has custody of the person at the correctional facility, watch-house or detention centre) may make a custodian’s assessment authority if:

a recommendation for assessment and agreement for assessment in force for the person are given to the custodian; and

the custodian is satisfied the person should be detained in an authorised mental health service for assessment.

Facsimile copies of the recommendation for assessment and agreement for assessment may be provided to the custodian. A custodian’s assessment authority must state the authorised mental health service where the person’s assessment is to be carried out.

Persons detained without charge The classified patient provisions can also apply to a person in lawful custody or lawfully detained without charge under an Act (State or Commonwealth) as prescribed under a mental health regulation. No State or Commonwealth Acts are currently prescribed for this purpose. Persons held in detention under the Migration Act 1958 (Cth) The classified patient provisions do not apply to a person detained under the Migration Act 1958 (Cth). An immigration detainee who requires involuntary assessment must be assessed under the provisions in chapter 2 of the Act i.e. a request for assessment and recommendation for assessment must be completed. Once the assessment documents have been made, a health practitioner or ambulance officer is authorised to take the person to the authorised mental health service for involuntary assessment. If involuntary treatment is required, the provisions of chapter 4 of the Act (i.e. relating to making an involuntary treatment order) apply. The Department of Immigration and Border Protection (DIBP) will retain legal custody of the patient throughout the person’s assessment and treatment. The need for DIBP officers to remain with the person during the admission will be determined by DIBP.

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2.5 Taking the person to an authorised mental health service (s68) A Court assessment order or custodian’s assessment authority (together with the recommendation for assessment and agreement for assessment) authorises the person to be taken to an authorised mental health service for admission as a classified patient. A police officer, correctional officer or detention centre officer must take the person to the inpatient facility of the service stated in the order. The person must be taken to the service as soon as practicable after the order is made. Note that for the purposes of section 68, an emergency department is considered to be part of the inpatient facility of an authorised mental health service (see chapter 2, section 2.2 of the Resource Guide). The police officer, correctional officer or detention centre officer may exercise the power with the help and using the minimum force that is necessary and reasonable in the circumstances.

3. Admission and detention of classified patients

3.1 Detention as a classified patient (s69, s540) A person becomes a classified patient when the recommendation for assessment and either the Court assessment order or custodian’s assessment authority is given to a health service employee at the authorised mental health service. In most circumstances, the authorised mental health service will already have the original agreement for assessment (i.e. the agreement for assessment is retained by the administrator when the document is made). Note: In some circumstances, a patient may already be subject to an involuntary treatment order or a forensic order at the time of their admission as a classified patient. The classified patient assessment documents (i.e. recommendation for assessment, agreement for assessment and Court assessment order or custodian’s assessment authority) are still required to authorise the patient’s admission as a classified patient. When a person becomes a classified patient, the administrator of the authorised mental health service assumes legal custody for the person. However, if the classified patient is subject to an involuntary treatment order or forensic order at another authorised mental health service at the



time of their admission as a classified patient, a transfer order must be made to transfer responsibility for the order to the service where the patient is admitted as a classified patient. On becoming a classified patient, the category of an involuntary treatment order (community) must be changed to involuntary treatment order (inpatient). The Director or delegate should be immediately advised in relation to a person requiring classified patient admission via the classified patient admission documents.

3.2 Effect on legal proceedings (s75-77) Suspension of legal proceedings On becoming a classified patient, proceedings for any offence against the person (other than a Commonwealth offence) are suspended until the person ceases to be a classified patient. Suspension of legal proceedings does not prevent:

a Court from granting bail under the Bail Act 1980; or

the prosecution being discontinued by police or the Director of Public Prosecutions.

If bail is granted or the prosecution discontinued, the patient ceases to be a classified patient (see section 6 in this chapter).

Providing information to the Court If a classified patient is remanded i.e. not serving a sentence, the Court receives notice of the patient’s admission as a classified patient (and the resulting suspension of legal proceedings) via the Director issuing a notice to the Chief Executive for Justice. The Chief Executive for Justice notifies the relevant parties, including the Court where the matter is listed.

As notification to the Court is not immediate, there may be circumstances where it is necessary for the administrator to communicate directly with the Court about the patient’s admission as a classified patient. In particular, this communication is necessary where the charge/s is/are listed for hearing/mention at the Court on a date shortly after the patient’s admission. Communication with the Court is important to minimise potential adverse outcomes for the patient (for example, a failure to appear notice).

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The administrator’s communication with the Court is given by completing an advising Court of classified patient admission letter. Commonwealth offences Commonwealth offences will continue to proceed through the usual Court processes during a person’s detention as a classified patient. The authorised doctor may wish to provide information to the Court; for example, information about the patient’s current condition and treatment needs, or the patient’s mental state at the time of the offence. Communication with the patient’s legal representative or the Court should occur with the patient’s or guardian’s consent, where necessary. The patient’s consent does not need to be written. However, it should be documented in the patient’s clinical file.

3.3 Administrator responsibilities on admission Review of admission documents The administrator must review the classified patient admission documents as soon as possible after admission to ensure compliance with legislative requirements. Any errors or omissions identified should be rectified without delay.

Notifications (s70) On the admission of a classified patient, the administrator must –

give written notice of the patient’s detention as a classified patient to the Director using a notification of classified patient status form

send a copy of the notification of classified patient status to the Mental Health Review Tribunal (the Tribunal) if:

o an involuntary treatment order or forensic order is already in place for the patient or if an involuntary treatment order is completed during the involuntary assessment period; or

o the authorised mental health service is a high security unit and the person is a young patient.

provide a notification of detention as classified patient letter to:

o the patient;

o the patient’s allied person;

o if the patient is a minor— the minor’s parent or guardian;

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o if the administrator reasonably believes the patient has a personal attorney— the attorney; and

o if the administrator reasonably believes the patient has a personal guardian— the guardian.

ensure the patient receives appropriate information and explanation about the classified patient status (Information for classified patients has been developed to facilitate this process).

The patient should be informed of their right to choose an allied person or to change an existing nomination and be supported in exercising this right. The patient should be provided with written and verbal information about their rights as an involuntary patient, including their right to choose an allied person (see chapter 11 of the Resource Guide). The administrator must ensure the information system is updated to reflect details of the classified patient assessment documents and the classified patient status.

Classified patient photographs The administrator is responsible for ensuring that up to date photographs of all classified patients are maintained. Photographs are maintained to assist police with identification should the patient become absent without permission during the admission. If a patient considerably changes their appearance, recent photographs should be maintained on file, so that police officers have access to the patient’s change in appearance. The photograph must:

be stored electronically and on the patient’s clinical file; and

be updated annually or as changes in the patient’s appearance are noted.

When the photograph is updated, a notation to this effect should be made on the replaced photograph and both should be retained on the patient’s clinical file.

The administrator must ensure the CIMHA information system is updated with current photographs of the classified patient.

3.4 Notification to victims The Director may give written notice of the patient’s detention as a classified patient to any person who the Director reasonably believes may apply for a classified patient information order. Information about classified

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patient information orders is provided in chapter 13 of the Resource Guide. Classified patients should be routinely provided with information about classified patient information orders and that the Director may notify a victim of their admission. The notification of detention as classified patient letter provides preliminary information to the patient. Information for classified patients about classified patient information orders is also available to assist authorised mental health service staff in providing information to the patient.

4. Initial assessment

An authorised doctor must assess the patient as soon as practicable after the person's admission as a classified patient and must complete the assessment within three (3) days of the patient’s admission. The authorised doctor must decide:

whether the patient meets the treatment criteria under the Act (i.e. whether an involuntary treatment order should be made); and

whether the patient needs to be detained in the authorised mental health service to have their treatment needs met.

4.1 Preparing an absent without permission response plan An absent without permission response plan is mandatroy for all classified patients. A psychiatrist should be involved in the development of the plan. The absent without permission response plan sets out specific actions to be taken if the patient becomes absent without permission e.g. measures to be taken to locate the person. It is not intended to replace clinical judgment at the time of an absent without permission event and must be consistent with the requirements set out in the Absence Without Permission Checklist – High Risk. The plan should be documented in the patient’s clinical record. For patients accessing limited community treatment approved by the Director, the absent without permission response plan can be covered in the limited community treatment plan. The absent without permission response plan should be reviewed regularly and amended in line with any changes in the patient’s situation or clinical needs.

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4.2 Need for involuntary treatment order

Patient meets treatment criteria If the authorised doctor is satisfied the treatment criteria apply (see chapter 4 of the Resource Guide), the doctor may make an involuntary treatment order for the patient. The category of an involuntary treatment order for a classified patient must be ‘inpatient’. Requirements relating to involuntary treatment orders specified in chapter 4 of the Resource Guide apply equally to a classified patient (for example, preparation of a treatment plan, notifications, and Tribunal reviews). However, note that for classified patients, special requirements apply in relation to transfer, limited community treatment and absence without permission. These requirements are covered in sections 5.2 and 5.3 of this chapter and in chapter 10 of the Resource Guide.

Patient already on an involuntary treatment order or forensic order On admission as a classified patient, the existing involuntary treatment order or forensic order (other than a disability forensic order) provides authority for involuntary treatment.

4.3 Need for detention at the service Patient needs to be detained at the service If the authorised doctor decides that the patient needs to be detained at the service to receive treatment, the treatment may be administered to the patient:

under an involuntary treatment order or forensic order (other than a disability forensic order) as under section 4.2 of this chapter; or

with the patient’s consent. The authorised doctor must prepare a treatment plan for the patient (s72). A treatment plan is required for all classified patients (i.e. even if an involuntary treatment order or forensic order is not in effect for the patient). The doctor may use the consumer care review and summary plan contained within the statewide standardised clinical suite of documentation at: http://qheps.health.qld.gov.au/mentalhealth/docs/a_cc_review_sum.pdf The treatment plan must include:

an outline of proposed treatment, rehabilitation and other services to be provided;

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http://qheps.health.qld.gov.au/mentalhealth/docs/a_cc_review_sum.pdf



details of the services to be provided including who will provide the service, how often it will be provided and the duration for which it will be provided;

intervals for the patient’s regular review by an authorised psychiatrist (see section 5.1 in this chapter); and

any monitoring condition required by the Director for the purposes of undertaking limited community treatment (for further information, see chapter 9 of the Resource Guide).

The authorised doctor must talk to the patient about treatment under the treatment plan and make a record of this in the patient’s clinical file. Classified patients receiving treatment with consent Note that a classified patient consenting to treatment is an ‘involuntary patient’ under the Act. The administrator remains responsible for the patient’s custody and detention at the authorised mental health service. However, there is no authority to administer treatment without consent or to use force in the administration of treatment. It should be noted that a classified patient’s treatment needs may change during their admission and the treatment criteria under the Act may be met at a later time during the admission (i.e. after the initial three day assessment period has expired). See section 5.1 of this chapter for more information. Patient does not need to be detained at the service If the authorised doctor decides that the patient does not need to be detained at the service (i.e. the patient does not require treatment or treatment can be appropriately provided elsewhere), a patient does not need to be detained for treatment as a classified patient form must be issued to the Director. Further information about issuing a patient does not need to be detained for treatment as a classified patient form is provided under section 5.6 in this chapter.

5. Ongoing treatment and review

5.1 Regular clinical review by authorised psychiatrist (s73) Regular clinical reviews by an authorised psychiatrist of a classified patient must be undertaken as identified in the patient’s treatment plan. Review by

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an authorised psychiatrist is required regardless of whether the patient is being treated involuntarily or with consent. The administrator must ensure an authorised psychiatrist conducts regular reviews of the patient as required under the patient’s treatment plan. In undertaking the regular review, the authorised psychiatrist must decide:

whether the treatment criteria apply to the patient; and

whether the patient needs ongoing inpatient treatment(see section 5.6 in this chapter).

If the patient is subject to an involuntary treatment order, the psychiatrist must decide whether the treatment criteria continue to apply to the patient. If the patient is not subject to an involuntary treatment order or forensic order but the psychiatrist considers the person meets the treatment criteria, an involuntary treatment order can be made. Note that the assessment documents as outlined in chapter 3 (i.e. request for assessment and recommendation for assessment) must precede the involuntary treatment order. The authorised psychiatrist must record details of each assessment in the patient’s clinical file.

5.2 Move and transfer Classified patients can only be transferred to another authorised mental

health service on the written order of the Director (i.e. a transfer order). The Director must also be notified when a classified patient is moved to another inpatient facility within the authorised mental health service.

Chapter 8 of the Resource Guide provides further information about moving and transfer of classified patients.

5.3 Limited community treatment and temporary absence Limited community treatment for a classified patient must be approved by the Director. The Director may also approve temporary absence (for example, short-term absence from an authorised mental health service to:

receive medical, dental or optical treatment;

appear before a court, tribunal or other body; or

for another purpose the Director considers to be appropriate on compassionate grounds.

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Chapter 9 of the Resource Guide provides further information about limited community treatment and temporary absence for classified patients. Child safety issues For all patients on periods of authorised leave, the authorised mental health service is required to identify any children that the patient has care, custody or access to in their place of residence and who may be affected by the patient’s mental illness, or intellectual or cognitive disability. An assessment must be undertaken, including the patient’s parenting abilities, the presence of other adults who may be involved in providing care to the children and the risk of abuse and neglect. All staff should be aware of the mandatory reporting requirements under section 186 and section 197A of the Child Protection Act 1999.

5.4 Absence without permission Requirements relating to absence without permission are covered in chapter 10 of the Resource Guide.

5.5 Involuntary patient summary The involuntary patient summary contains current information pertinent to risk assessment and risk management. Its purpose is to ensure information is readily available to front line staff, particularly those who are unfamiliar with the patient. For a classified patient, an involuntary patient summary is to be completed every three (3) months or more frequently as new information presents (for example, an episode of absence without permission). The form is to be completed in the Consumer Integrated Mental Health Application (CIMHA), with copies placed in the front of the clinical record and administrative (i.e. Mental Health Act) record.

5.6 Decision by authorised doctor that patient does not need to be detained for treatment (s83) An authorised doctor may, on an initial assessment or at any time during the classified patient’s admission, determine that the patient does not need to be detained at the service for treatment of mental illness. A patient does not need to be detained for treatment as a classified patient form must be issued to the Director in this instance.

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If the Director is satisfied the patient does not need to be detained at the service (under section 83 of the Mental Health Act), the Director will take action to return the patient to a Court or custody (see section 6.2 in this chapter). In issuing a patient does not need to be detained for treatment as a classified patient, the authorised doctor must take account of all relevant considerations including the patient’s clinical needs, implications for legal processes if the patient is returned to a Court or custody, and the appropriateness of alternative action (for example, seeking bail) (see section 6.2 in this chapter for returning a classified patient).

Implications for legal processes – classified patients charged with an offence If the patient is charged with an offence and is (or has been) subject to an involuntary treatment order or forensic order during the admission, processes under Chapter 7 Part 2 of the Act will have been instituted (see chapter 6 of the Resource Guide). Both the classified patient provisions and the Chapter 7 Part 2 provisions result in suspension of legal proceedings. A classified patient’s return to a Court or custody enables the legal proceedings to be reinstituted. However, it is possible for an inconsistency to arise if the patient is returned to a Court or custody before the Chapter 7 Part 2 processes are finalised. Therefore, return to a Court or custody for a classified patient subject to Chapter 7 Part 2 processes should occur only when Chapter 7 Part 2 processes are finalised. Legal proceedings continue to be suspended when the Director refers a matter to the Mental Health Court (also discussed in chapter 6 of the Resource Guide). In this instance, it is important to consider the potential outcome of the Mental Health Court decisions and the patient’s future treatment needs. If initial indications in the section 238 report (i.e. the opinion by the psychiatrist) are that the patient might have an unsound mind defence for the alleged offence or is unfit for trial, the patient’s future mental health needs are likely to be met by an authorised mental health service (for example, under a forensic order). Therefore, return to Court or custody as an interim arrangement while the patient is awaiting a decision by the Mental Health Court or the Director of Public Prosecutions is not generally considered to be in the patient’s treatment interests.



However, if the section 238 report by the psychiatrist indicates that the patient does not have a defence and is fit for trial, consideration may be given to the patient’s return to custody to await determination by the Director of Public Prosecutions or occasionally, by the Mental Health Court.

Consideration of bail – classified patients charged with an offence The authorised doctor should consider whether seeking bail is the appropriate option (for example, where the change is not of a serious nature and the authorised doctor believes the patient’s treatment needs can be safely met in the community). If bail is granted, the patient ceases to be a classified patient. The patient can continue to be treated under an involuntary treatment order or forensic order (other than a disability forensic order). If the doctor considers that bail is an appropriate option, the doctor should discuss this with the patient and the patient’s legal representative.

Ensuring appropriate clinical arrangements on return to custody The authorised doctor is responsible for ensuring that appropriate arrangements can be made for the patient’s treatment on return to custody. The authorised doctor should discuss the proposed return to custody with relevant clinical staff (for example Prison Mental Health Service treating team) prior to issuing the patient does not need to be detained for treatment as a classified patient to the Director. If the Director takes action to return the patient to a Court or custody, the authorised doctor should ensure transfer of appropriate clinical information.

6. Ceasing classified patient status

6.1 When patient ceases to be a classified patient Classified patient status may cease as a result of a number of different processes. For a patient charged with an offence, classified patient status ends under section 78 when:

the patient is returned to custody of a Court or another custodial setting);

bail is granted;



the Director of Public Prosecutions makes a decision to discontinue proceedings (see chapter 6 of the Resource Guide);

the Director of Public Prosecutions makes a decision to continue proceedings and the patient is returned to a Court (see chapter 6 of the Resource Guide);

the Mental Health Court makes a decision in relation to the charges (see chapter 6 of the Resource Guide); or

the prosecution for the offence is discontinued for any other reason. If a classified patient is charged with a Commonwealth offence, the classified patient status will also end when the charge is finalised by the relevant Court. For a patient serving a sentence of imprisonment, classified patient status ends when:

the patient is returned to custody;

the sentence ends; or

parole is granted.

Note however, that the patient’s classified patient status may relate to more than one criminal justice process. The patient’s classified patient status may continue to apply in this instance. For example:

A classified patient is serving a sentence of imprisonment and is also remanded in custody in relation to further charges. Prosecution for the further charges is discontinued - ending the classified patient status for those offences. However, as the patient’s sentence of imprisonment continues, the patient remains a classified patient.

A classified patient is remanded in custody in relation to State and Commonwealth offences. The Mental Health Court makes a decision on all the State offences – ending the classified patient status for those offences. However, as the Commonwealth offences are not resolved, the patient remains a classified patient.

6.2 Procedure for returning classified patients to a Court or custody (s83-91)

When return to a Court or custody processes apply A classified patient may be returned to a Court or custody:

if the Director is satisfied the patient does not need to be detained for treatment of mental illness; or



if a classified patient consenting to treatment asks to no longer be detained in the health service and they are assessed as not meeting the treatment criteria for involuntary treatment.

Director is satisfied that the patient does not need to be detained for treatment of mental illness Before taking action to return a classified patient to a Court or custody, the Director must be satisfied that the patient does not need to be detained for treatment of mental illness. The process is usually instigated by an authorised doctor (i.e. the Director receives a patient does not need to be detained for treatment as a classified patient form). The Director considers a number of factors in deciding whether the patient needs to be detained for treatment of mental illness, including:

the patient’s treatment status (i.e. whether an involuntary treatment order or forensic order (other than a disability forensic order) is in place);

the patient’s treatment needs and whether these can be appropriately met in custody; and

if the patient is charged with an offence and is subject to an involuntary treatment order or forensic order (see chapter 6 of Resource Guide) -

o the status of proceedings in relation to the offences (for example, whether a referral has been made to the Director of Public Prosecutions or the Mental Health Court); and

o the opinion of the reporting psychiatrist under section 238 regarding unsoundness of mind and fitness for trial.

Classified patient consenting to treatment asks to no longer be detained If a forensic order or involuntary treatment order is not in force after the initial three (3) day assessment period for a patient who has consented to treatment, the patient may ask to be discharged from the authorised mental health service. In this instance, arrangements must be made for the person’s return to a Court or custody. If the patient asks to be discharged, the administrator must give written notice to the Director with a classified patient has asked that he/she no longer be detained in the health service form. However, if an authorised doctor at the authorised mental health service considers that the treatment criteria may apply to a patient who rescinds their consent to treatment, the authorised mental health service may instigate the involuntary assessment provisions.

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Return to a Court or custody (s89-91) The Director must decide if the person is to be returned to custody or brought before a Court. The ‘return to custody’ process only applies when the patient was previously in custody and was admitted under a custodian’s assessment authority. The ‘return to Court’ process applies when:

the patient is admitted under a Court assessment authority; or

the Director determines that a patient admitted under a custodian’s assessment authority who is charged with an offence should be returned to Court rather than custody; for example, when there is uncertainty about the status of a Court remand order.

Return to custody (s89-90) On deciding to return a patient to custody, the Director must immediately give written notice on a Patient to be returned to custody form to the custodian who made the custodian assessment authority form. Within one (1) day after receiving the Director’s notice, the custodian must ensure the patient is taken from the authorised mental health service to the place of custody. The patient may be taken to the place of custody by a police officer, correctional officer, or detention centre officer. The patient may be taken with the help and using the minimum force that is necessary and reasonable in the circumstances. If the patient is on an involuntary treatment order at the time of return to custody the order must be changed to involuntary treatment order (community). If the patient is subject to an involuntary treatment order or forensic order, the decision about the most appropriate authorised mental health service to hold responsibility for the patient’s involuntary status on return to custody should be determined on a case by case basis. The decision should be made in consultation between the Prison Mental Health Service and the relevant authorised mental health service/s, taking account of the following considerations:

the patient’s mental state and clinical needs;

the locality with which the patient specifically identifies i.e. proximity to family or support persons; and



anticipated length of custody. If the agreed authorised mental health service does not have statutory responsibility for the patient’s involuntary status, a transfer order is required at the time of the patient’s return to custody.

Note that a patient on an involuntary treatment order or forensic order cannot be treated in custody without their consent.

Return to Court (s85-s87, s91-s92) On deciding to return a patient to Court, the Director must immediately give written notice to the Chief Executive for Justice (patient to be brought before Court form). The Chief Executive for Justice must immediately give written notice to:

the registrar of the Court in which proceedings for the offence that led to the patient becoming a classified patient are to be heard;

the prosecuting authority; and

if the patient is a child - the chief executive for young people. The prosecuting authority must ensure the patient is brought before the appropriate Court within three (3) days to be dealt with according to law.

6.3 Procedure at end of sentence or parole For further information about statutory responsibility for a patient at the end of a prison sentence or parole, see chapter 8, section 3.6 of the Resource Guide. Where the patient is a classified patient serving a sentence of imprisonment, the administrator must give the Director at least seven (7) days’ notice of:

the end of the patient’s period of imprisonment; or

the patient’s parole.

The administrator must send an end of period of imprisonment/detention for classified patient or on the patient’s parole form to the Director.

6.4 Effect of ceasing classified patient status on treatment Arrangements for the patient’s access to treatment following cessation of their classified patient status are dependent on their status under the Act, their treatment needs and the setting in which they are located.

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If the patient is subject to an involuntary treatment order or forensic order when the classified patient status is ceased, the patient continues to be an involuntary patient.

A patient returned to custody may continue to receive treatment with consent under an involuntary treatment order or forensic order (other than a disability forensic order) at the place of custody. If a classified patient is returned to custody under an involuntary treatment order, the category of the order must be changed to community.

If the patient is an inpatient of the authorised mental health service when the classified patient status ends (for example, the proceedings for an offence are discontinued, the patient is granted bail or parole, the patient’s sentence of imprisonment ends), the patient may:

continue to receive treatment under an involuntary treatment order or forensic order (other than a disability forensic order) in an inpatient facility;

receive treatment with consent in the inpatient facility; or

be discharged from the inpatient facility to receive treatment in the community under an involuntary treatment order (community category) or forensic order (other than a disability forensic order) with approved leave; or

leave the service if not subject to an involuntary treatment order or forensic order.

Special requirements apply if the patient is at a high security unit. The patient may not be detained in the high security unit for longer than three (3) days, unless the Director determines it is appropriate for the patient to remain at the high security unit. In this instance, the administrator must, within three (3) days, send a request for involuntary patient to be detained in a high security unit form to the Director. Follow-up of patients discharged Mental health service staff must document the patient’s residential address in the clinical file, including temporary addresses. For patients who were previously classified patients (in particular, where an approval for limited community treatment requires that the patient reside at an address approved by the authorised doctor/psychiatrist), the patient’s residential address and any temporary address approved should also always be documented in the limited community treatment plan. Mental health staff must review the patient face-to-face during the first week after the patient’s discharge. This review may occur by way of a home visit or at the authorised mental health service. In certain circumstances, there may be a need to deviate from this practice (for

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The administrator of the authorised mental health service must ensure the information system is updated to reflect the cessation of classified patient status.

example, where face-to-face review is not possible due to the person’s residence in a remote location). Where a deviation is necessary, alternative arrangements should be made as far as possible (for example, follow-up through a remote area nurse or telephone contact with the person). Any deviation from the practice must be approved by the Clinical Director of the service, or in the absence of the Clinical Director, another senior doctor nominated by the Administrator.

6.5 Administrator responsibilities Within seven (7) days after a patient ceases to be a classified patient, the administrator of the patient’s treating authorised mental health service must give written notice (notification that detention as classified patient has ceased letter) to:

the patient;

the patient’s allied person; and

the Tribunal - if an involuntary treatment order or forensic order is in force for the patient.

If classified patient status is ceased other than as a result of the Director’s action to return the patient to a Court or custody, the administrator must also notify the Director. If the patient’s classified status ceases as a result of bail being granted, the administrator must fax or attach to an internal email written confirmation of the decision made by the Court to the Director as soon as possible.

7. Detention during trial (s101-107)

A Court may, on an adjournment at trial, order that the accused be detained in an authorised mental health service during the adjournment. A Court order for detention is issued by the Court. Note that a patient detained under Court order for detention is not a classified patient. A Court order for detention can only be made if an agreement for detention is given by the administrator or the Director. An agreement for

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detention cannot be given for a young person’s detention in a high security unit.

A Court order for detention does not authorise involuntary treatment. If the person is not subject to an involuntary treatment order or forensic order (other than a disability forensic order) and requires involuntary treatment, the involuntary assessment and treatment processes (set out in chapters 3 and 4 of the Resource Guide) may be applied. A police officer, corrective services officer or detention centre officer is authorised to take the person to an inpatient facility of the authorised mental health service and return the person to a Court at the end of the adjournment. Note: For the purposes of section 106 (Taking person to authorised mental health service and return to court), an emergency department is considered to be part of the inpatient facility of an authorised mental health service (see chapter 2, section 2.2 of the Resource Guide).

8. Flowcharts

The following charts set out processes relating to admission as a classified patient and ending classified patient status.



Admission as a classified patient

Yes

Involuntary treatment required?

No

Involuntary

treatment

Assessment at AMHS as classified patient (s71)

ITO (s108)

Consent to treatment

(s71(4))

Regular assessment (s73)

Yes

Assessment documents made for person

No

Person before a Court or in custody needs assessment in an AMHS

Is patient already under

an ITO or forensic order?

Assessment documents for chapter 3

(a) Recommendation for assessment

(b) Agreement for assessment

(c) Court assessment order or custodian’s assessment authority



Ending classified patient status

Yes

Involuntary treatment required?

Is patient already under

an ITO or forensic order?

No

Involuntary

treatment

Assessment at AMHS as classified patient (s71)

ITO (s108)

Consent to treatment

(s71(4))

Classified status ends:

Other

(Bail granted or prosecution

discontinued) (ch 3, pt 4,s78 & ch 7, pt 3, s253)

Expiry of sentence

(ch 3, pt 6)

Return to Court or custody

(If patient no longer needs to be treated

as a classified patient)

(ch 3, pt 5)

Mental Health Court

(ch 7, pt 6)

Director of Public

Prosecutions

(ch 7, pt 3)

** See Forensic

provisions

Regular assessment (s73 & s116)

Yes

No



Documents

CHAPTER 5 - CLASSIFIED PATIENTS · Chapter 5 | Classified patients 5-5 detained in a watch-house, correctional facility, or youth detention centre as a result of being charged with