188.8.131.52 Person undertaking a course of rehabilitation
A person who is confined in a psychiatric institution because of criminal charges (but not convicted because of mental impairment) may be paid a social security payment during a period when the person is undertaking a 'course of rehabilitation'. This topic explains to whom the course of rehabilitation provision applies, what constitutes a course of rehabilitation and what evidence is required to determine whether a person is undertaking such a course.
Note: A person lawfully detained in a psychiatric institution while under sentence for conviction of an offence and is not on parole or licence is considered to be in 'gaol' and CANNOT be paid even during a period when the person may be undertaking a course of rehabilitation (see Federal Court case of Garden V Secretary of FaCS 2001).
Act reference: SSAct Part 3.13 Imprisonment, section 23(5) …a person is in gaol if…, section 23(8) Psychiatric confinement, section 23(9) The confinement of a person…, section 1158 Some social security payments not payable…
Person to whom a course of rehabilitation provision applies
The effect of SSAct subsection 23(9) is that section 1158(b) does not apply to a person who is confined in a psychiatric institution because of criminal charges (but not convicted) during a period when the person is undertaking a course of rehabilitation. The term psychiatric institution includes a psychiatric section of a hospital and any other place where 'persons with psychiatric disabilities' are confined.
The term 'persons with psychiatric disabilities' should not be narrowly interpreted as applying only to those people with psychiatric impairment such as depression, bipolar disorder or schizophrenia. Australian jurisdictions accept the 'unfit to plead/stand trial' construct in relation to people with these impairments and also in relation to people with intellectual disability, an acquired brain injury and any other impairments affecting mental health function in the broad sense.
This means that the 'undertaking a course of rehabilitation' provision applies EQUALLY TO ANY PERSON confined in a psychiatric institution following a criminal charge who, because of mental impairment, is not fit to plea/stand trial, is found not guilty, is found guilty but no conviction is recorded and whose mental fitness to stand trial or be sentenced is being assessed. This rule applies REGARDLESS of whether the mental impairment is caused by a psychiatric illness, intellectual disability, an acquired brain injury or any other condition affecting mental health function.
Act reference: SSAct section 23(8) Phychiatric confinement
Meaning of a course of rehabilitation
For the purposes of SSAct subsection 23(9), a person is regarded as undertaking a course of rehabilitation when they are undertaking a planned series of activities that may include medical and other treatments/activities directed towards improving the person's physical, mental and/or social functioning.
If the person is merely undertaking ad hoc rehabilitation activities, or their treatments/activities cannot be said to be directed towards improving their physical, mental and/or social functioning, then SSAct subsection 23(9) does not apply and the bar on receipt of social security payments remains.
Refer to the Full Federal Court decision of Franks V Secretary of FaCS (2002) FCAFC 486 (20 December 2002).
However, in practice it will be unlikely for people placed in psychiatric institutions under legal mental health orders to be merely undertaking ad-hoc activities or treatments that are not designed to help their physical, mental or social rehabilitation. This is because as a rule (rather than an exception) people are being confined in psychiatric institutions for treatment and rehabilitation purposes and treatment plans are a norm in such institutions.
Acceptable treatments & activities
A person placed in a psychiatric institution may be undertaking any one of a number of treatments and activities that could form part of a planned series of activities.
Generally, any activity recommended by appropriate personnel in psychiatric institutions as part of an overall rehabilitation plan is a legitimate activity for the purpose of SSAct subsection 23(9) as long as it forms part of a planned series of activities.
Explanation: People placed in psychiatric institutions are cared for by a range of professionals who are qualified and trained in designing treatments and activities to improve a person's physical, mental and/or social functioning. These professionals include health professionals, such as medical practitioners (e.g. psychiatrists, other medical specialists, general practitioners), allied health professionals (e.g. psychologists, occupational therapists, exercise physiologists, physiotherapists, podiatrists, pharmacists, rehabilitation counsellors) and other relevant professionals (e.g. social workers).
Acceptable treatments and activities may involve but not be limited to a number of different approaches including medical therapies, physiotherapy, exercise programs, gardening, various awareness programs (e.g. drug and alcohol awareness) or life skills programs. All these activities are legitimate activities as long as they are prescribed by an appropriate treating professional and form part of a planned series of activities. Such activities are not regarded as ad-hoc activities.
Example: A person participating for one hour every second day in a cooking class as part of a rehabilitation plan with a view to developing their social skills through team work and learning about healthy eating habits is participating in a legitimate activity. This is not an ad-hoc activity.
It is recognised that treatment/rehabilitation plans need to be flexible and may need to be changed depending on a person's circumstances, including the nature and severity of their condition, response to treatment and capacity to undertake specific activities at a certain point in time. Therefore, for a series of activities to be regarded as a course of rehabilitation, it is not necessary for them to be part of a strict plan containing clearly defined durations and milestones for specific activities and treatments. A person may be participating in activities sequentially or in combination.
Explanation: Depending on the severity of a person's medical condition, it may take some time for them to progress to another activity or stage of treatment, e.g. for some people it may take a long time for the effective medication to be identified and during that time they may only be able to undergo medical treatment.
Example: A person who attends appointments with a mental health professional every week to monitor effectiveness (or otherwise) of their medication and to review their condition is participating in a legitimate activity.
For an activity to be acceptable, it is not required that the activity be strictly personalised. Group-based programs are regarded as legitimate activities as long as they are part of an overall treatment plan.
Example 1: A person participating in a general drug awareness group as part of their rehabilitation plan is participating in a legitimate activity despite the fact that the program is not undertaken on a one-to-one basis.
Example 2: A person who, as part of their rehabilitation plan, is participating in a gym group program aimed at improving participants' physical health is participating in a legitimate activity.
Generally, where the relevant authority advises that a person is undertaking a course of rehabilitation, this can be accepted without further investigation as long as the required evidence is available (see below).
Decision makers will be able to obtain the required information to make a decision whether a person is undertaking a course of rehabilitation from the relevant form used by DHS to collect such information. For the information to be valid, the form must be completed by or be verified with a health or allied health professional operating in a psychiatric institution or correctional authority.
Equivalent evidence may also be accepted, such as a letter from an institution or the correctional authority.
Review & notifications
Once it is established that a person is undertaking a course of rehabilitation, rehabilitation activities are not generally required to be reviewed at any set intervals. However, the correctional authorities are required to immediately notify if there is a change to the person's circumstances affecting payability, e.g. when the person stops the program.
Act reference: SSAct section 23(5) …a person is in gaol if…, section 23(8) Psychiatric confinement, section 23(9) The confinement of a person…, section 1158 Some social security payments not payable