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Licensing and Mental Health

The ACT Civil and Administrative Tribunal (ACAT) deals with a wide variety of disputes between citizens. It also deals with licensing matters, including taxi licensing and security licences, and mental-health matters, which are often referred from the criminal courts.

In such licensing or mental-health matters, it is advisable to have the services of a lawyer who practices exclusively in the areas of the criminal and traffic law.

Among the objects of the tribunal is to ensure that access to the tribunal is simple and inexpensive and to ensure that applications to the tribunal are resolved as quickly as they can be, while achieving justice.

Review of Licensing Decisions by ACAT

If a decision-maker has ruled against a person continuing to hold a certain licence, such as a taxi licence or a security licence, they generally have 28 days in which to appeal that decision and seek to have the matter placed before the ACAT. As a general rule, they should be provided with reasons for the original decision within the same timeframe.

Given the informality of its proceedings, the tribunal sometimes suggests that parties discuss matters and seek common ground. This can often lead to the reinstatement of a licence, subject to certain conditions.

Occupational Discipline by ACAT

In relation to a person who is licensed, or registered, under an authorising law, “occupational discipline” means any action the tribunal may take in relation to the person under the authorising law; and includes also any one or more of the following orders:

  • reprimand the person;
  • require the person to give a written undertaking;
  • require the person to complete a stated course of training to the satisfaction of the relevant regulatory body or another stated person;
  • give the person a direction;
  • cancel or suspend the person’s licence or registration;
  • disqualify the person from applying for a licence, or registration, of a stated kind for a stated period or until a stated thing happens;
  • if a regulatory body may put conditions on the person’s licence or registration under an authorising law, direct the regulatory body to
    • put a condition on the person’s licence or registration; or
    • remove or amend a condition put on the person’s licence or registration;
  • require the person to pay to the Territory or someone else a stated amount;
  • if the person gained financial advantage from the action that is the ground for occupational discipline, require the person to pay to the Territory an amount assessed as the amount of financial advantage gained by the person.

If the ACAT cancels a person’s licence or registration, the ACAT may disqualify the person from applying for a licence or registration for a stated period or indefinitely.

ACAT’s Rules

The ACAT can establish its own procedures and powers, subject to specific requirements in its Act and is to conduct proceedings in a way that is as simple, quick, inexpensive and informal as is consistent with achieving justice.

The tribunal may inform itself in any way it considers appropriate in the circumstances, for example by asking an assessor for expert advice on a matter or relying on tribunal members’ previous experience. It must observe natural justice and procedural fairness but is not bound by the rules of evidence.

The tribunal may require the parties to an application to attend a preliminary conference. It may make inquiries, or require further information from a party, for or during a preliminary conference.

The tribunal may refer issues to a registered mediator and require the parties to attend the mediation.

It can choose to decide an application without holding a hearing, but must give the parties written notice. If a party wants to make representations about the tribunal proceeding without a hearing, it must do so within 21 days. The tribunal is bound to consider the representations and must not decide a matter without a hearing unless satisfied that it is in the public interest to so.

If asked by a party within 14 days of a decision, the tribunal must give written reasons (or a transcript of oral reasons) for its decision.

ACAT Mental-Health Assessments

Both the ACT Magistrates Court and the ACT Supreme Court can refer defendants to the ACAT for an assessment.

Assessments can be made into whether a person is fit to enter a plea or not, and into whether or not a person may be found not guilty of a charge by way of mental impairment at the time of the offence, or, if they have been convicted, that they are suffering mental impairment at the time their matter comes to court.

Unfitness to Plead

The ACAT must decide that the person is unfit to plead if satisfied that the person’s mental processes are disordered or impaired to the extent that the person cannot:

  • understand the nature of the charge; or
  • enter a plea to the charge and exercise the right to challenge jurors or the jury; or
  • understand that the proceeding is an inquiry about whether the person committed the offence; or
  • follow the course of the proceeding; or
  • understand the substantial effect of any evidence that may be given in support of the prosecution; or
  • give instructions to the person’s lawyer.

A person is not considered unfit to plead only because the person is suffering from memory loss.

A court can make a decision about a person being fit or otherwise to plead without referring the matter to ACAT.

Recommendations About People with Mental Impairment

Courts can make orders requiring people to submit to the jurisdiction of the ACAT to enable the ACAT to determine whether the person has a mental impairment and, if the ACAT determines that the person has a mental impairment, to make recommendations to the court about how the person should be dealt with.

The courts can, without an ACAT inquiry, find a person not guilty by way of mental impairment and refer the matter to ACAT for recommendations.

If the court makes such an order and the ACAT notifies the court of its recommendations, the orders the court can make include:

  • that the accused be detained in custody until the ACAT orders otherwise;
  • that the accused submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.

Powers of The Magistrates Court

If the Magistrates Court is satisfied that an accused person is mentally impaired, it can:

  • 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
  • dismiss the charge unconditionally.

In doing this, the court will consider:

  • the nature and seriousness of the mental impairment;
  • the period for which the mental impairment is likely to continue;
  • the risk of the accused doing serious harm to themselves or others;
  • whether the ACAT could make an order;
  • the seriousness of the alleged offence;
  • the antecedents of the accused;
  • the effectiveness of any similar order previously made.

The Magistrates Court may only dismiss the charge with the consent of the Director of Public Prosecutions.

Mental Impairment After Conviction

If a person has been convicted of an offence in the Supreme Court or Magistrates Court and the court is satisfied that the convicted person has a mental impairment, the court may, before sentencing the convicted person, order him or her to submit to the jurisdiction of the ACAT to enable the ACAT:

  • to determine whether or not the person has a mental impairment; and
  • if the ACAT determines that the person has a mental impairment, to make recommendations as to how the person should be dealt with.

Those orders may include an order that the person submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.

If the court orders a person who is found by the ACAT to have a mental impairment to be sentenced to a period of imprisonment, the court must not order the person to be imprisoned for a period greater than any period of imprisonment to which the person could have been sentenced, apart from that finding.

Mental Health Orders

Before making a mental health order, the ACAT considers an assessment of the person conducted under an assessment order, which includes thorough expert assessment at a designated mental-health facility. It can also consider another assessment of the person that the ACAT considers appropriate.

The ACAT has broad powers over assessment orders. It can direct the person in charge of a mental-health facility:

  • to admit a person to the facility to be assessed; and
  • to detain the person at the facility until they are assessed; and
  • to provide necessary and reasonable help to conduct the assessment.

Before making a mental-health order, the ACAT must, as far as practicable, consult with anyone with parental responsibility for person, or their guardian and with the person most likely to be responsible for providing the treatment, programs and other services proposed to be ordered.

What ACAT Must Take Into Account

In making a mental health order, the ACAT must take into account:

  • whether the person consents or has the capacity to consent, to a course of treatment, care or support;
  • the views and wishes of the person, so far as they can be found out;
  • the views and wishes of the people responsible for the day-to-day care of the person, so far as those views and wishes are made known to the ACAT;
  • the views of the people appearing at the proceeding;
  • parents, guardians and powers of attorney;
  • that the person’s welfare and interests should be protected;
  • that the person’s rights should not be interfered with except to the least extent necessary;
  • that the person should be encouraged to look after themselves;
  • that, as far as possible, the person should live in the general community and join in community activities;
  • that any restrictions placed on the person should be the minimum necessary for the safe and effective care of the person;
  • the alternative treatments, programs and other services available, including:
    • the purposes of those treatments, programs and services; and
    • the benefits likely to be derived by the person from those treatments, programs and services; and
    • the distress, discomfort, risks, side effects or other disadvantages associated with those treatments, programs and services;
  • any relevant medical history of the person;
  • the religious, cultural and language needs of the person;
  • the nature and circumstances of any offence in relation to which the person has been arrested, or may be or has been charged;
  • for an offender with a mental impairment, the nature and extent of the person’s mental impairment, including the effect it is likely to have on the person’s behaviour in the future;
  • for an offender with a mental impairment, whether or not, if the person is not detained
    • the person’s health or safety is, or is likely to be, substantially at risk; or
    • the person is likely to do serious harm to others.

Psychiatric Treatment Orders

The ACAT may make a psychiatric treatment order if the person has a mental illness and the ACAT has reasonable grounds for believing that, because of the illness, the person is likely to:

  • do serious harm to himself, herself or someone else; or
  • suffer serious mental or physical deterioration;

unless subject to involuntary psychiatric treatment.

The ACAT must be satisfied that psychiatric treatment is likely to reduce the harm or deterioration (or the likelihood of harm or deterioration) and result in an improvement in the person’s psychiatric condition.

The tribunal must also be satisfied that the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.

Community Care Orders

A community care order may state one or more of the following:

  • that the person is to be given treatment, care or support;
  • that the person may be given medication for the treatment or amelioration of the person’s mental dysfunction that is prescribed by a doctor;
  • that the person is to undertake a counselling, training, therapeutic or rehabilitation program;
  • that limits may be imposed on communication between the person and other people.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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