Part IB - Sentencing, imprisonment and release of federal offenders  

Division 9 - Sentencing alternatives for persons suffering from mental illness or intellectual disability  

SECTION 20BU   Discharge of hospital orders  

Where a person is subject to a hospital order, the person or the Director of Public Prosecutions may, at any time while the order is in force, apply to the court that imposed the order to discharge the order and to impose such other sentence as the court thinks appropriate, being a sentence that could have been imposed when the order was made.

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

(a) that the person has sufficiently recovered from mental illness no longer to require involuntary hospitalisation; or

(b) that the mental illness will not respond or respond further to hospital treatment.

Where the court discharges a hospital order and imposes another sentence instead of the order:

(a) the new sentence must commence on the date of commencement of the order; and

(b) the length of the new sentence must not exceed the length of the order; and

(c) if the sentence is a sentence of imprisonment - the person concerned is to be treated as having served that part of the sentence during which he or she was subject to involuntary hospitalisation.

Before reaching an opinion on the matters specified in subsection (2) in relation to a person, the court:

(a) must obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness; and

(b) if the person has been released, under section 20BR , into the care of another person for the balance of the hospital order - must obtain and consider the report of that other person; and

(c) may obtain and consider such other information as it thinks relevant.

An application under subsection (1) to the court that made a hospital order may be dealt with by that court whether or not it is constituted in the way in which it was constituted when the order was made.

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