36ARemoval of prisoners and detainees to secure mental health units

### 36A Removal of prisoners and detainees to secure mental health units > [*\[Section 36A Inserted by No. 72 of 2005, s. 82, Applied:20 Feb 2006\]*](/view/html/inforce/2006-02-20/act-2005-072#GS82@EN) > > > (1)  In this section –[*\[Section 36A Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014\]*](/view/html/inforce/2014-02-17/act-2013-069#JS1@Ja9@GC4@Hpa@EN) > > > > > [*\[Section 36A Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014\]*](/view/html/inforce/2014-02-17/act-2013-069#JS1@Ja9@GC4@Hpb@EN) ***controlling authority*** has the same meaning as in the [Mental Health Act 2013](/view/html/inforce/2026-04-12/act-2013-002) ; > > > > > ***disability*** means a restriction or lack of ability to perform an activity in a normal manner that – > > > > > > > > (a) results from an absence, loss or abnormality of mental, psychological, intellectual, cognitive, physiological or anatomical structure or function; but > > > > > > > > > (b) is not a mental illness; > > > > [*\[Section 36A Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014\]*](/view/html/inforce/2014-02-17/act-2013-069#JS1@Ja9@GC4@Hpc@EN) > > > > > [*\[Section 36A Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014\]*](/view/html/inforce/2014-02-17/act-2013-069#JS1@Ja9@GC4@Hpd@EN) ***mental illness*** has the same meaning as in the [Mental Health Act 2013](/view/html/inforce/2026-04-12/act-2013-002) . > > > (2)  The Director may direct that a prisoner or detainee who appears to be suffering from a mental illness be removed from a prison, or a hospital or institution to which he or she has been removed under [section 36](#GS36@EN) , to a secure mental health unit if – > > > > > > (a) either – > > > > > > > > > > (i) the Director determines that it is in the best interests of the prisoner or detainee or other persons in the prison, hospital or institution for the prisoner or detainee to be removed to a secure mental health unit; or > > > > > > > > > > > (ii) the prisoner or detainee has requested that he or she be removed to a secure mental health unit; and > > > > > > > (b) [*\[Section 36A Subsection (2) amended by No. 4 of 2023, s. 5, Applied:25 Sep 2023\]*](/view/html/inforce/2023-09-25/act-2023-004#GS5@Hpa@EN) the Chief Psychiatrist is satisfied that – > > > > > > > > > > (i) the prisoner or detainee is suffering from a mental illness; and > > > > > > > > > > > (ii) the admission of the prisoner or detainee is necessary for his or her care or treatment; and > > > > > > > > > > > (iii) adequate facilities and staff exist at the secure mental health unit for the appropriate care and treatment of the prisoner or detainee. > > > (3)  The Director may direct that a prisoner or detainee who has a disability be removed from a prison, or a hospital or institution to which he or she has been removed under [section 36](#GS36@EN) , to a secure mental health unit if – > > > > > > (a) the Director considers that it is necessary to so remove the prisoner or detainee for his or her own health, wellbeing or safety or for the protection of other persons; and > > > > > > > (b) the Director considers that appropriate treatment, care, rehabilitation or other services cannot be provided in the prison, or a hospital or institution to which the prisoner or detainee can be removed under [section 36](#GS36@EN) ; and > > > > > > > (c) [*\[Section 36A Subsection (3) amended by No. 4 of 2023, s. 5, Applied:25 Sep 2023\]*](/view/html/inforce/2023-09-25/act-2023-004#GS5@Hpb@EN) the Chief Psychiatrist is satisfied that – > > > > > > > > > > (i) the admission of the prisoner or detainee is necessary for his or her care or treatment; and > > > > > > > > > > > (ii) adequate facilities and staff exist at the secure mental health unit for the appropriate care and treatment of the prisoner or detainee. > > > (4)  [*\[Section 36A Subsection (4) amended by No. 4 of 2023, s. 5, Applied:25 Sep 2023\]*](/view/html/inforce/2023-09-25/act-2023-004#GS5@Hpc@EN) [*\[Section 36A Subsection (4) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014\]*](/view/html/inforce/2014-02-17/act-2013-069#JS1@Ja9@GC4@Hpe@EN) If the Chief Psychiatrist is not satisfied of the matters specified in [subsection (2)(b)](#GS36A@Gs2@Hpb@EN) or [subsection (3)(c)](#GS36A@Gs3@Hpc@EN) , the Secretary, after considering the written reasons of the Chief Psychiatrist for not being so satisfied, may request the Secretary of the responsible Department in relation to the [Mental Health Act 2013](/view/html/inforce/2026-04-12/act-2013-002) to review the decision of the Chief Psychiatrist. > > > (5)  [*\[Section 36A Subsection (5) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014\]*](/view/html/inforce/2014-02-17/act-2013-069#JS1@Ja9@GC4@Hpf@EN) If following a review of a decision undertaken on a request made under [subsection (4)](#GS36A@Gs4@EN) the Secretary of the responsible Department in relation to the [Mental Health Act 2013](/view/html/inforce/2026-04-12/act-2013-002) agrees to the making of a direction under [subsection (2)](#GS36A@Gs2@EN) or [(3)](#GS36A@Gs3@EN) , the Director may make that direction despite the matters specified in [subsection (2)(b)](#GS36A@Gs2@Hpb@EN) or [(3)(c)](#GS36A@Gs3@Hpc@EN) not being satisfied. > > > (6)  [*\[Section 36A Subsection (6) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014\]*](/view/html/inforce/2014-02-17/act-2013-069#JS1@Ja9@GC4@Hpg@EN) A prisoner or detainee admitted to a secure mental health unit under a direction under [subsection (3)](#GS36A@Gs3@EN) may be detained in the secure mental health unit for no longer than the period specified in the direction or, if the Secretary of the responsible Department in relation to the [Mental Health Act 2013](/view/html/inforce/2026-04-12/act-2013-002) has agreed on a review under [subsection (4)](#GS36A@Gs4@EN) to the making of the direction, no longer than the period specified in that agreement. > > > (7)  [*\[Section 36A Subsection (7) amended by No. 4 of 2023, s. 5, Applied:25 Sep 2023\]*](/view/html/inforce/2023-09-25/act-2023-004#GS5@Hpd@EN) If at any time while a prisoner or detainee admitted to a secure mental health unit under a direction under [subsection (2)](#GS36A@Gs2@EN) or [(3)](#GS36A@Gs3@EN) is so detained in that unit the Chief Psychiatrist considers that the prisoner or detainee would no longer benefit from being in that unit, the Chief Psychiatrist may require the Director to remove the prisoner or detainee from that unit. > > > (8)  The Director is to comply with a requirement made under [subsection (7)](#GS36A@Gs7@EN) . > > > (9)  While a prisoner is detained in a secure mental health unit following a direction under [subsection (2)](#GS36A@Gs2@EN) or [(3)](#GS36A@Gs3@EN) , including while the prisoner is on authorised leave from that secure mental health unit, that prisoner is taken to be serving his or her sentence of imprisonment. > > > (10)  [*\[Section 36A Subsection (10) amended by No. 18 of 2021, s. 57, Applied:05 Nov 2021\]*](/view/html/inforce/2021-11-05/act-2021-018#GS57@EN) [*\[Section 36A Subsection (10) inserted by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014\]*](/view/html/inforce/2014-02-17/act-2013-069#JS1@Ja9@GC4@Hph@EN) If a prisoner or detainee is moved to a secure mental health unit under this section, the Director is to notify the Tribunal of that fact as soon as practicable.