//
[2026] ACAT 15
General information, not legal advice.
ACT Civil and Administrative Tribunal
2026-03-13
Magistrate Campbell
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF JANE (Mental Health) [2026] ACAT 15 MH 287/2017 Catchwords: MENTAL HEALTH – referral under section 334(2)(a) of the Crimes Act 1900 to submit to the jurisdiction of the Tribunal to make a mental health order – restriction order – consideration of appropriate treatment for breach of family violence order – interaction between mental health and criminal justice Legislation cited: Crimes Act 1900 s 334 Family Violence Act 2016 s 43 Mental Health Act 2015 ss 58, 60, 61, 69, 76, 77, 188 Tribunal: Presidential Member H Robinson Senior Member R Davies Date of Orders: 25 September 2025 Date of Reasons for Decision: 5 February 2026 Date of Publication: 13 March 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) MH 287/2017
IN THE MATTER OF JANE
TRIBUNAL: Presidential Member H Robinson Senior Member R Davies DATE: 25 September 2025 ORDER The Tribunal orders that:
The application is dismissed.
The Tribunal will publish written reasons in due course.
………………Signed……………….. Presidential Member H Robinson For and on behalf of the Tribunal REASONS FOR DECISION 1. The matter concerned a referral from ACT Magistrates Court to the Tribunal pursuant to section 334(2)(a) of the Crimes Act 1900 (Crimes Act). Under this section, the Magistrates Court may make an order dismissing a charge and requiring the accused to submit to ACAT’s jurisdiction to enable the ACAT to make a mental health order or forensic mental health order under the Mental Health Act 2015 (MH Act). This kind of order, referring a criminal matter from a Court to the Tribunal’s mental health jurisdiction, is colloquially referred to as a “referral”.
The subject person, Jane, was already subject to a Psychiatric Treatment Order (PTO) made under section 58 of the MH Act. The question for the Tribunal was whether the Tribunal should also make a ‘Restriction Order’ (RO) under section 60 of the MH Act addressing certain conduct associated with her alleged offending.
The Tribunal ultimately declined to make a RO in this case. As will be seen from these reasons, the referral raised several practical questions about the interaction between the mental health and the criminal justice systems.
Legislation
The following provisions are extracted in the annexure to these reasons: (a) Section 334 of the Crimes Act dealing with referrals (Annexure A); (b) Section 58 of MH Act sets out the criteria for the Tribunal to make a PTO (the criteria for making a community care order (CCO) is in section 66 of the MH Act but is not included in these reasons) (Annexure B); (c) Section 60 deals with the conditions for the making of a RO (Annexure C); (d) Section 61 sets out what may be in a RO (Annexure D); and (e) Section 77 deals with the process for breach of a mental health order (Annexure E). Background
Jane is an Aboriginal woman with a long and complex history of mental illness, including bipolar affective disorder, schizophrenia, schizoaffective disorder and polysubstance abuse.
Jane’s children were removed by Children, Youth and Families (CYF) and there is a protection order in place under the Family Violence Act 2016 (FV Act) preventing her from having contact with them, or with her mother who cares for them. The Tribunal does not have the details of the order. 1
Jane was charged with the contravention of the Family Violence Order (FVO) and several other offences. It is not necessary to go into the detail of those offences for the purposes of these reasons. The charges were heard in the ACT Magistrates Court. Jane’s representative sought that an order be made unconditionally dismissing the proceedings under section 334 of the Crimes Act. The Department of Public Prosecutions did not oppose the referral in relation to the FV Act breaches. The question was whether the referrals should be unconditional under section 334(2)(b), or conditional under section 334(2)(a).
In considering the matter, her Honour Magistrate Campbell noted that Jane was 2 already on a PTO. She further observed that: ACAT are no doubt aware of these charges but ACAT has the ability to add a restriction condition to a psychiatric treatment order. The concern is that [the subject person] not come in contact with her children and mother … And that is because the family violence order in place doesn’t allow that and that’s where she’s – it may be more appropriate to have it as a condition that restricts her contact under the psychiatric treatment order rather than a family violence order. And that’s something for ACAT to determine. So I’m of the view that the matter should be referred to ACAT.
Following further submissions, her Honour made a conditional referral under section 334(2)(a).
Following the order, the Magistrates Court “referred’ the matter to the Tribunal. As is usual with a referral of this kind, the referral bundle included a significant
1 FV Act s 43(2) 2 Transcript of hearing dated 29 July 2025, page 7, lines 43-46; page 8, lines 3-8 body of information about Jane’s charges, her health and other personal circumstances. The bundle comprised of: (a) Orders; (b) a transcript of the hearing; (c) a “Brief Mental Health Report” prepared by Ms Lillian Pham, Clinical Psychologist, Forensic Mental Health Services; (d) a Mental Health Assessment Report; (e) a pre-sentence report; (f) Defence Submissions; and (g) a Statement of Facts.
The matter was listed before the Tribunal on 4 September 2025.
Section 188 of the MH Act contains a list of persons who must be notified about a hearing under the MH Act. These persons receive a copy of the listing notice, although not necessarily any information about the proceedings.
In attendance at the hearing were Mr Pennell of Woden Mental Health, Ms Lucy Knox of Forensic Mental Health Services, attending on behalf of the Chief Psychiatrist, and Ms Pettitt on behalf of the Public Advocate (PA). Following some discussion about the best way forward, the Tribunal requested that the Chief Psychiatrist provide an updated report on the subject person’s current psychiatric condition and any special treatment and care options available. The hearing was adjourned to 25 September 2025 to allow time for preparation of the report. In its orders, the Tribunal also requested the attendance of representatives of the Director General, Children, Youth and Families, the Commissioner for Aboriginal Children and Young People and the Public Trustee and Guardian (as guardian for the subject person) at the next hearing.
In attendance at the hearing on 25 September 2025 were Mr Fisher from the PA’s office, Ms Walker from the ACT Disability Aged and Carer Advocacy Service, (ADACAS) (appearing as the representative of Jane) and Ms Knox and Mr Pennell on behalf of the Chief Psychiatrist. Jane declined to attend. Submissions
All the parties present opposed the making of a RO in relation to Jane’s contact with her children at this time, although the position of the PA was a nuanced one.
Mr Fischer submitted that there was a live issue in the Courts as to how to best manage very unwell persons who breach protection orders by virtue of being unwell. These people are not criminally responsible for their actions, although they can present a risk to public that needs to be managed. The PA had raised with the Magistrates Court in other matters the possibility of diverting such persons to the mental health system, to be managed by a PTO and a RO. They were not, however, present at Jane’s hearing.
The complexity with this matter, Mr Fischer submitted, was that FVO was already in place, and there was no indication that the CYF, as the applicant in the matter, was minded to allow the present FVO to be withdrawn and replaced with a RO. This meant that while the PA agreed in principle with the proposed approach, in the present case it would be inappropriate because there would be two orders which may have different conditions applying to Jane, presenting an unreasonable burden upon her. If CYF would substitute one order with another one, the PA would be more minded to support it.
The PA also acknowledged that there may be practical problems. It was their “understanding” that the Australian Federal Police (AFP) treated mental health orders differently to family violence orders — with less priority. Hence, as a requisite to supporting the proposal, the PA would need an indication from AFP that they would treat the RO in much the same way in terms of priority and rapid response — and at present it was not clear what their response would be.
The PA, in short, had a “nuanced position that relies on the actions of other agencies”, particularly CYF and the AFP. Neither were present at the hearing and the AFP did not know about it. We note that while the tribunal sent a listing notice to CYF, given the strict privacy provisions in the MH Act, it was not possible to provide CYF any information about the hearing beyond Jane’s name, so it may be that they were unaware of what the hearing was actually about. Mr Fischer advised that Mr Powsey of their office had made enquiries of CYF had not heard anything back.
The views of Forensic Mental Health Services, represented by Ms Knox, were that an RO in the terms contemplated would not be appropriate.
Ms Knox advised that she had never come across this proposed use of a RO before. She had discussed it with Jane, who was also concerned about how it would work, and particularly what would happen if she breached the order. Would she be taken to hospital? What would happen if she were taken to hospital but there was no clinical necessity to keep her there? What would the other consequences of the breach be? Afterall, transport to the hospital would not guarantee that Jane could or would be treated.
Ms Knox was also of the view that primary purpose of the MH Act is support for the subject person, not protection of others, such as the children in this case.
Mr Purnell, as clinical manger, also expressed concerns about how the RO would work.
Mr Purnell explained that where a person breaches a PTO, they are subject to ACT Health’s contravention process. The process includes warning letters and takes some time. He submitted that the process did not seem appropriate for a situation involving a breach of a protection order or where someone was potentially at risk.
Mr Purnell shared some of the concerns raised by the PA. In particular, he said, it was unlikely that a breach of the PTO would warrant urgent police attention — a family violence order would be more effective in ensuring intervention by police. He did not believe that a restriction order would support the safety of the children. He also did not believe it was for that purpose — the purpose of the order was the safety of the subject person.
In response to concerns raised by other parties about the intention of a PTO being about the health of the subject person and not the protection of others, Mr Fisher noted that section 60 of the MH Act expressly allows for the making of a restriction order where it is in the interests of a member of the public. Hence, the MH Act is not entirely concerned with the best interests of the person about whom the order is made.
Mr Fischer further explained that the process envisaged was that the police would still attend, but rather than taking Jane to the watchhouse they would take her to Dhulwa Mental Health facility — but in saying that he acknowledged that the infrastructure may not be there at present to allow this to take place. Still, the purpose of this approach, Mr Fisher continued, was to deal with an emerging pattern of breaches — someone gets charged, goes to court, is too impaired to be held criminally liable, so they are sent to ACAT but little can be done if they are already on a PTO. “We need a path out of this trap,” he said.
Consideration Criteria for making restriction order with psychiatric treatment order
In broad terms, the MH Act provides that in addition to making a PTO or a CCO in relation to a person, the tribunal may make a RO in relation to the person if it believes on reasonable grounds that — (a) it is in the interests of the person's health or safety or the safety of someone else or the public to do so; and (b) the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person.
A RO is a supplementary mental health order. It is contingent upon the tribunal being satisfied that a person is in need of a PTO or a CCO.
By way of background, there are six material requirements that must be met for a PTO to be made. They are set out in section 58(2) of the MH Act, extracted above. Essentially (although regard must be had to the full terms of the Act), the Act looks to whether a person has a mental illness or disorder that seriously impairs their functioning in a way that requires treatment, care and support, whether they have a capacity and willingness to consent to treatment, care and support, and what is the least restrictive means of providing that care. A PTO can be made by the tribunal on application or following a referral from a Court under the Crimes Act, but only when the criteria in section 58 of the MH Act are met.
The kinds of matters that an RO can deal with are set out in section 61 for PTO and section 69 for CCO: (a) that the person live (but not be detained) in the place stated in the RO; (b) that the person be detained in an approved mental health facility (for PTOs) or approved community care facility (for CCOs); (c) that the person must not approach a specified person; (d) that the person must not go to a specified place; or (e) that the person must not undertake a specified activity.
Usually, if the treating team or person making the PTO or CCO application believes that an RO is needed, they may apply for it as part of the application. In our experience, such applications are rare. The tribunal may also make an order on its own initiative, although it is difficult to see circumstances where it would do so without some input from the treating team. Most of the recent ROs have been in the context of transitioning people to live in the community after a period of custody or inpatient care.
It is worth nothing that a RO can last for a maximum of three months, which is 3 shorter than the maximum of six months for a PTO or a CCO. The need for constant review probably reflects the restrictive nature of the orders, and is intended to protect the subject person, but it should be noted that regular attendance at the tribunal and the invasive nature of reviews can itself be a source of stress for many persons subject to such orders.
In terms of what happens when the is a breach of a mental health order, the treating team must follow a process set out in section 77 of the MH Act. Again, the section is extracted in the Annexure to these reasons, but briefly: (a) Within seven days of the contravention the person must be told verbally that a failure to comply with the Order may result in being apprehended and
3 MH Act section 76 re-detained. (b) If the person does not comply, the person is issued with a signed written warning informing them that a further failure to comply will result in the person being apprehended and re-detained. (c) If the person still does not comply, a police officer, ambulance paramedic, mental health officer or doctor may apprehend them and return them to the facility from which they were detained (e.g. Dhulwa) or taken to the Emergency Department of the Canberra Hospital. Reasonable force may be used as part of the process.
As can be seen from the above process, it is contingent on a person in breach of an order being given a warning and an opportunity to comply. Typically, in the context of a PTO, this means that a person who does not attend for a depot medication or an assessment at a specified time will be given a warning and a period of time to attend a health centre voluntarily, afterwards action may be taken to bring them to hospital. It is not apparent that the process would work where there is an imminent risk to a person who would otherwise be protected by a FVO, although much would depend on the circumstances. An increase in certain risky behaviours by a subject person in breach of an RO (e.g. being seen in a place they are restricted from attending) may well, for example, evidence a deterioration in their condition and the order would ensure a mechanism for review and treatment. However, this may not be an adequate tool in Jane’s particular circumstances.
The intention behind the referral is clearly to move breaches of an FVO by persons with longstanding and contributing illnesses from a criminal matter in the Magistrates Court to a health matter in the Tribunal’s mental health jurisdiction. We agree that in a general sense it is preferable when somebody has a mental illness or mental disorder that is causing offending behaviour, that they be managed by ACAT and an appropriate mental health treating team.
We see no reason in theory why a restriction order, in concert with a mental health order, could not be used to manage such behaviour, where the requirements of the MH Act are otherwise met. However, implementing such a scheme as either an adjunct or an alternative to a protection order would require work to be done at an operational level between the various authorities involved in the care of subject persons and the protection of the community. This is outside the scope of the tribunal’s authority or capacity.
In these circumstances, having regard to the practical problems set out above, the existence of a FVO, and particularly where the Chief Psychiatrist is opposed to such an order, the Tribunal could not be satisfied that it should make a restriction order restricting Jane from contacting her children. She will, of course, remain subject to the PTO that allows the treating team to manage her mental illness (subject to at least six-monthly reviews). However, we encourage the relevant policy and operational areas to give more consideration to the proposal, and whether and how it could be implemented. This may require legislative change and will require cooperation between agencies. The present situation, and Jane’s constant cycle through the criminal and mental health systems, with little prospect of a circuit breaker, is not ideal by any measure.
……………………………….. Presidential Member H Robinson For and on behalf of the Tribunal Annexure A 334 Powers of Magistrates Court (1) This section applies where, in proceedings to which this division applies before the Magistrates Court, that court is satisfied that— (a) the accused is mentally impaired; and (b) on an outline of the facts to be alleged in the proceedings, or any other evidence the Magistrates Court considers relevant, it would be appropriate to deal with the person under this division. (2) If this section applies, the Magistrates Court may by order— (a) dismiss the charge and require the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order or forensic mental health order; or (b) dismiss the charge unconditionally. (3) In determining whether to make an order under subsection (2) (a) or (b), the Magistrates Court shall have regard to— (a) the nature and seriousness of the mental impairment; and (b) the period for which the mental impairment is likely to continue; and (c) the extent to which by reason of the accused’s mental impairment the accused is likely to do serious harm to himself or herself or others; and (d) whether the ACAT could make an order under the Mental Health Act 2015, section 101 (Forensic psychiatric treatment order) or section 108 (Forensic community care order); and (e) the seriousness of the alleged offence; and (f) the antecedents of the accused; and (g) the effectiveness of any order previously made under subsection (2) (a) or (b), including to the extent to which— (i) the order assisted the accused to obtain appropriate treatment and care for his or her mental impairment; and (ii) access to that treatment and care has enabled the accused to modify his or her behaviour, being behaviour of a kind that has previously resulted in the accused having been charged with an offence. (4) Despite subsection (2), the Magistrates Court may only make an order under that subsection in relation to proceedings with respect to an indictable offence that may be heard and determined summarily with the consent of the director of public prosecutions. (5) If the Magistrates Court makes an order under subsection (2) (a), the order operates as a stay of proceedings, or of further proceedings, against the accused in relation to the offence. (6) If the Magistrates Court makes an order under subsection (2), it must not make an order under any of the following provisions of the Crimes (Sentencing) Act 2005 for the offence: (a) section 13 (Good behaviour orders); (b) section 17 (Non-conviction orders—general); (c) section 19 (Reparation orders—losses and expenses generally); (d) section 20 (Reparation orders—stolen property). (7) An order under subsection (2) does not constitute a finding that an offence has or has not been committed. (8) In proceedings to which this section applies, to determine whether an accused has a mental impairment, the Magistrates Court may make any orders it considers appropriate, including the following: (a) that the accused submit to the jurisdiction of the ACAT; (b) that the proceedings be adjourned; (c) that the person be released on bail. (9) If the Magistrates Court makes an order under subsection (8) (a), the ACAT shall notify the Magistrates Court about each of the matters referred to in subsection (3) (a) to (d). Annexure B 58 Psychiatric treatment order (1) This section applies to— (a) a person assessed under an assessment order; or (b) a person in relation to whom an application for a mental health order has been made under part 5.2; or (c) a person in relation to whom an application for a forensic mental health order has been made under division 7.1.2; or (d) a person required by a court to submit to the jurisdiction of the ACAT under the Crimes Act, part 13 or the Crimes Act 1914 (Cwlth), part 1B. (2) The ACAT may make a psychiatric treatment order in relation to the person if— (a) the person has a mental illness; and (b) either— (i) the person does not have decision-making capacity to consent to the treatment, care or support and refuses to receive the treatment, care or support; or (ii) the person has decision-making capacity to consent to the treatment, care or support, but refuses to consent; and (c) the ACAT believes on reasonable grounds that, because of the mental illness, the person— (i) is doing, or is likely to do, serious harm to themself or someone else; or (ii) is suffering, or is likely to suffer, serious mental or physical deterioration; and (d) in relation to a person mentioned in paragraph (b) (ii)—the ACAT is satisfied that the harm or deterioration, or likely harm or deterioration, mentioned in paragraph (c) is of such a serious nature that it outweighs the person’s right to refuse to consent; and (e) the ACAT is satisfied that psychiatric treatment, care or support is likely to— (i) reduce the harm or deterioration, or the likelihood of the harm or deterioration, mentioned in paragraph (c); or (ii) result in an improvement in the person’s psychiatric condition; and (f) if an application has been made for a forensic mental health order—the ACAT is satisfied that a psychiatric treatment order should be made instead; and (g) the ACAT is satisfied that the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person. Annexure C 60 Criteria for making restriction order with psychiatric treatment order In addition to making a psychiatric treatment order in relation to a person, the ACAT may make a restriction order in relation to the person if it believes on reasonable grounds that— (a) it is in the interests of the person’s health or safety or the safety of someone else or the public to do so; and (b) the treatment, care or support to be provided under the psychiatric treatment order cannot be adequately provided in another way that would involve less restriction of the freedom of choice and movement of the person. Annexure D 61 Content of restriction order made with psychiatric treatment order (1) A restriction order made under section 60 in relation to a person may state either or both of the following: (a) that the person must— (i) live (but not be detained) at a stated place; or (ii) be detained at a stated place; (b) that the person must not approach a stated person or stated place or undertake stated activities. (2) A restriction order does not prevent the chief psychiatrist from granting leave to a person detained at a stated place. Annexure E 77 Contravention of mental health order (1) This section applies if— (a) a mental health order is in force in relation to a person; and (b) the person contravenes the order; and (c) section 78 (Contravention of mental health order—absconding from facility) does not apply to the contravention. Examples—contravention 1 failure to return from leave granted by chief psychiatrist 2 not attending mental health facility for treatment, care or support (2) The relevant official for the order or a mental health officer may take action to tell the person that failure to comply with the order may result in the person being apprehended and taken to an approved mental health facility or approved community care facility for treatment, care or support. (3) Action under subsection (2) must— (a) be taken within 7 days of the contravention; and (b) involve the taking of all reasonable steps to tell the person the information mentioned in subsection (2). (4) If the noncompliance continues after the taking of action under subsection (2), the relevant official or mental health officer may require the person to be detained at an approved mental health facility or approved community care facility to ensure compliance with the order. Note The chief psychiatrist may make a determination requiring a person to be taken to a place for treatment, care or support (see s 62 (Role of chief psychiatrist—psychiatric treatment order)). (5) A person is taken to have complied with an order after the relevant official or mental health officer has taken action under subsection (2) if— (a) the person consents to receiving treatment at a place other than an approved mental health facility or approved community care facility (a facility); and (b) the relevant official or mental health officer is satisfied that— (i) the person can be appropriately treated at a place other than a facility; and (ii) the other place is a suitable place for the treatment. Example—other place the person’s home (6) If a person is required to be detained under subsection (4), a police officer, authorised ambulance paramedic, mental health officer or doctor may apprehend the person and take the person to an approved mental health facility or approved community care facility. Note See s 263 (Powers of entry and apprehension) and s 264 (Powers of search and seizure). (7) If the relevant official or mental health officer requires the detention of a person under subsection (4), the relevant official or the mental health officer must, within 24 hours of the person being detained, tell the ACAT and the public advocate in writing— (a) the name of the person detained; and (b) the reasons for requiring the detention; and (c) the name and address of the approved mental health facility or approved community care facility where the person is detained; and (d) if the mental health order includes a restriction order that restricts the place where a person must live—whether the restriction order has been contravened. Note The ACAT must review the order within 72 hours after being notified under this subsection (see s 79 (3)).