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Hospital Orders

The content on this page was last reviewed on 03 May 2012.

1. Overview

The Crimes Act 1914 (Cth) makes available to the  court alternatives in lieu of passing sentence when dealing with a person suffering from a mental illness. These options include:

To make a Hospital Order the court must be satisfied that the person is suffering from a mental illness within the meaning of the civil law of that State or Territory: s 20BS(1)(a).

Where a court is sentencing a person suffering from an intellectual disability the court may make a Program Probation Order pursuant to s 20BY. See federal commentary: Program  Probation Orders.

2. Where a hospital  order may be made

Before reaching an opinion on the matters specified in s 20BS(1), the court must obtain and consider the reports of 2 qualified psychiatrists with experience in the diagnosis and treatment of mental illness: s 20BS(1)(5).

The court may, without passing sentence, make a hospital order where:

  • a person is convicted in a State or Territory, on indictment, or a federal offence: s 20BS(1);

and the court is satisfied that:

  • the person is suffering from a mental illness within the meaning of the civil law of that State or Territory: s 20BS(1)(a); and
  • the illness contributed to the commission of the offence: s 20BS(1)(b) and
  • appropriate treatment is available in a hospital in that State or Territory: s 20BS(1)(c); and
  • the proposed treatment cannot be provided other than as an inmate of a hospital in that State or Territory: s 20BS(1)(d).

A court must not make a hospital order unless, but for the mental illness, the court would have sentenced the person to a term of imprisonment: s 20BS(2).

A hospital order may be made in respect of a person already serving a federal sentence: see s 20BS(6).

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3. What a hospital order must  specify

The hospital order must specify:

  • the hospital in which the person will be detained: s 20BS(1); and
  • the period of detention: s 20BS(1); and
  • the treatment that the person will receive: s 20BS(1).

3.1 Period of detention

A hospital order must specify the period during which the person will be detained in the hospital: s 20BS(1).

The period of detention must not exceed the period of imprisonment to which the person would have been sentenced had the hospital order not been made: s 20BS(3).

The court may fix a shorter period during which the person may not be released from hospital: s 20BS(4).

Where a lesser period is fixed under s 20BS(4), the Attorney-General must, at the end of that period, obtain and consider the reports of 2 duly qualified psychiatrists so as to determine whether or not to release the person: s 20BT(1).

After considering the reports, the Attorney-General must release a person unless:

  • either of the reports recommends that the person not be released because of continuing need for treatment: s 20BT(2)(a); or
  • the person continues to be required to serve a federal sentence that the person was serving at the time the hospital order began: s 20BT(2)(b).

A person may be released on such conditions as the Attorney-General considers appropriate: s 20BT(2).

Note: for a person already serving a federal sentence at the time at which the hospital order begins, a shorter period determined  under s 20BS(4) may not end:

  • before any non-parole period set in respect of that federal sentence: s 20BS(7)(a); or
  • before the end of that federal sentence, where no non-parole period has been set: s 20BS(7)(b).

3.2 Release from a hospital  order may be revoked

Where a person is released by the Attorney-General at the completion of the shortened hospitalisation period, such a release order may be revoked in accordance with the provisions in s 20BM and s 20BN: s 20BT(3).

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4. Discharge  of hospital orders

At any time while the hospital order is in force, the person detained or the Director of Public Prosecutions may apply for the court to discharge the order and impose such a sentence as the court thinks appropriate, being a sentence that could have been imposed when the order was made: s 20BU(1).

Before reaching an opinion as to the following matters, the court:

  • must obtain and consider the reports of two qualified psychiatrists with experience of mental illness: s 20BU(4)(a); and
  • must consider any applicable reports if the person has been released under s 20BR: s 20BU(4)(b); and
  • may obtain and consider any other information it thinks relevant: s 20BU(4)(c).

The court must not discharge a hospital order unless the court is satisfied that:

  • the person has sufficiently recovered from mental illness to no longer require involuntary hospitalisation: s 20BU(2)(a); or
  • that the mental illness will not respond or respond further to hospital treatment: s 20BU(2)(b).

Where the court discharges the order and imposes a new sentence:

  • the new sentence imposed must be a sentence that could have been imposed when the original hospital order was made: s 20BU(1); and
  • the new sentence must commence on the date of commencement of the order: s 20BU(3)(a); and
  • the length of the new sentence must not exceed the length of the order: s 20BU(3)(b); and
  • if the new sentence is one of imprisonment, then the person is to be treated as having served that part of the sentence during which he or she was subject to involuntary hospitalisation: s 20BU(3)(c).

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