Forensic Orders and the Forensic Disability Act 2011
What is a forensic order?
Forensic orders are made primarily by the Mental Health Court for persons charged with a serious offence who are found of unsound mind at the time of an alleged offence or unfit for trial. Persons on a forensic order may be treated or cared for without consent and, if necessary, detained in an Authorised Mental Health Service (AMHS) or the Forensic Disability Service. The ongoing status of a forensic order for a patient is reviewed by the Mental Health Review Tribunal.
Who makes a forensic order?
Where the Mental Health Court decides a person was of unsound mind at the time of an alleged offence or is unfit for trial, the Court may:
- make a forensic order
- make a treatment support order, or
- make no order for the person.
A forensic order must be made if the Court considers it necessary to protect the safety of the community, including from the risk of serious harm to other persons or property.
A forensic order may also be made by the Mental Health Review Tribunal (MHRT) in limited circumstances, namely:
- where the Supreme Court or District Court makes a forensic order (Criminal Code), it is then referred to the MHRT to decide whether to make a forensic order (mental health) or forensic order (disability) for the person, and
- where the MHRT transfers a person on the equivalent of a forensic order from interstate, the MHRT must decide whether to make a forensic order (mental health) or forensic order (disability) for the person.
What is a forensic order (disability)?
A forensic order (disability) is made if: the person’s unsoundness of mind or unfitness for trial is due to an intellectual disability, and the person needs care for the person’s intellectual disability but does not need treatment and care for any mental illness.
In making a forensic order, the Court may also make recommendations about intervention programs, such as drug and alcohol programs, and anger management counselling programs. The person's willingness to participate in these programs, if offered to the person, is considered by the Tribunal when the forensic order is reviewed.
The Court must also decide the category of the order – inpatient or community. Persons with a forensic order (disability) inpatient status may be accommodated within the Forensic Disability Service (FDS) or an Authorised Mental Health Service facility.
If the Court decides that the category of the order is inpatient, the Court may approve limited community treatment for the patient. Limited community treatment allows a person to leave an inpatient unit for periods of up to 7 days.
The Court may only allow treatment in the community if there is not an unacceptable risk to the safety of the community, because of the person’s mental condition, including the risk of serious harm to other persons or property.
The Court may also impose any conditions it considers appropriate, including a condition that the person not contact a stated person such as a victim of the unlawful act.
Forensic Disability Act 2011
The Forensic Disability Act 2011 provides for the involuntary detention, and the care and support and protection, of forensic disability clients, while also:
- safeguarding their rights and freedoms
- balancing their rights with the rights of other people
- promoting their development and enhancing their opportunities for quality of life
- maximizing their opportunities for reintegration into the community.
Read the Forensic Disability Act 2011.
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