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Ministerial Exemption Relating to the Release of Information: Persons Unfit to Possess, Carry or Use a Firearm (June 2000)

• Purpose
• Background
• The Effect of The Exemption
• Factors To Consider in Forming a Belief
• How to Notify Victoria Police
• Other Issues
• Declaration Pursuant to Section 120a(3)(L) and Section 120a(3a) of the Mental Health Act 1986
• Schedule A
• Schedule B

Purpose

To inform you about providing information to Victoria Police, in relation to clients who are considered unfit to possess, carry or use a firearm.

Background

Section 183 of the Firearms Act 1996 provides immunity from civil or criminal liability for registered medical practitioners, registered nurses and registered psychologists who notify Police that they believe that a person is not a fit or proper person to carry, possess or use a firearm. This Act does not provide protection for unregistered psychologists, social workers or occupational therapists of public mental health services.

Sections 120A(3)(l) and 120A(3A) of the Mental Health Act 1996 allow the Minister to make an exemption from the confidentiality provisions in section 120A if this is in the public interest.

An exemption under sections 120A(3)(l) and 120A(3A) has been granted by the Minister for Health to allow the release of information to Victoria Police about people who are unfit to have a firearm. It replaces the previous exemption of 1 November 1996. The existing legal protection for mental health practitioners has been extended to unregistered psychologists, social workers and occupational therapists who notify Police that they believe that a person is unfit to have a firearm. The legal protection granted by the Minister is from prosecution under the Mental Health Act. A copy of the exemption is attached for your information.

The Effect of The Exemption

The effect of the exemption is that registered medical practitioners, registered nurses, psychologists, social workers and occupational therapists working in a relevant psychiatric service*, can notify Victoria Police if it is reasonably believed that:

(a) a person who is a client of a relevant psychiatric service* is not a fit and proper person to possess, carry or use a firearm; and

(b) the person has a licence under the Firearms Act or intends to apply for a licence under the Firearms Act or possesses or intends to possess a firearm.

*a "relevant psychiatric service" is:

(a) an approved mental health service
(b) a State child and adolescent psychiatry service
(c) a hospital admitting or caring for people with a mental disorder
(d) a psychiatric out-patient clinic
(e) a community mental health service

Factors To Consider in Forming a Belief

In deciding whether the person is a "fit and proper person" to possess, carry or use a firearm, mental health practitioners may consider a number of factors, including the following:

• the level of suicide risk
• past episodes of violence to self or others
• if there is a current risk of harm to the client or others
• the presence of comorbid disinhibiting factors such as illicit drugs, prescribed drugs or alcohol
• whether there is a history of verbally threatening behaviour
• any lack of impulse control
• whether the client is a danger to themselves or others when acutely ill
• concern expressed by a significant other

These should not be considered as the only factors that would lead to a notification, nor will these factors apply in every situation. Any final decision on whether to notify Police should be guided by professional judgement and ethics. If in doubt, mental health practitioners are encouraged to discuss the matter with the Director of Clinical Services.

How to Notify Victoria Police

Victoria Police have requested that all notifications are made through calling 000. Police will take the details of the person who is calling and the type of risk involved. Police will ask for details of the person who has access to firearms, and the type, source and location of the firearms where this is known. The circumstances or risk factors related to the person's condition are also useful at this point. Where the person's access to firearms creates a risk to another person, the name and address of this person will be required.

Police will attend to speak with the person making the notification. If there is a preference for the type of police car to attend, and whether plain clothes police are preferred this can be given to police at the time of making the call.

Other Issues

This circular is intended for general information only and not as legal advice. Mental health practitioners may wish to obtain advice from legal services available through the agency managing the mental health service. Matters relating to clinical assessment should be discussed with the Director of Clinical Services.

ANGELA JURJEVIC
Director Aged, Community and Mental Health

June 2000

Distribution: Area Mental Health Services Directors of Clinical Services Branch contact (03) 9616 6123

Declaration Pursuant to Section 120A(3)(l) and Section 120A(3A) of the Mental Health Act 1986

I the Honourable John Thwaites, Minister for Health, declare that, pursuant to section 120A(3)(l) and section 120A(3A) of the Mental Health Act 1986 (the Act) the classes of persons listed in Schedule A are exempt from section 120(A)(2) of the Act in the following circumstances:

Where any of the persons listed in Schedule A reasonably believe -

(a) that a person who is a client of any relevant psychiatric service, as defined in Schedule B, is not a fit and proper person to possess, carry or use a firearm; and

(b) that that person has a licence under the Firearms Act 1996 or intends to apply for a licence under the Firearms Act 1996 or possesses or intends to possess a firearm -

then any of those persons listed in Schedule A may release to officers of Victoria Police the name, address and any details requested by officers of Victoria Police in relation to that client.

I consider that this declaration is necessary in the public interest.

Dated this 19th day of January 2000.

JOHN THWAITES
MINISTER FOR HEALTH

Schedule A

This declaration applies to the following clinical staff of relevant psychiatric services as listed in Schedule B:

registered medical practitioners;

registered nurses;

psychologists;

social workers;

occupational therapists.

Schedule B

For the purposes of this declaration a relevant psychiatric service is:

(a) an approved mental health service;

(b) a State child and adolescent psychiatry service;

(c) a hospital admitting or caring for people with a mental disorder;

(d) a psychiatric out-patient clinic;

(e) a community mental health service.