Australia: The new mental health regime in the NSW criminal courts

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the New Act) came into effect on the 27 March 2021.

Passed last June, the New Act replaces the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Old Act) as the state's chief legislation specifically dealing with accused persons with a mental health or cognitive impairment who are facing criminal charges in the courts.

One important distinction between the Acts is that the Old Act pertained to relatively undefined “mental illness and other mental conditions”, whereas the New Act relates to mental health impairment – thoroughly defined in section 4 – and cognitive impairment, set out in section 5.

Another key change is that Old Act section 32 mental health orders have been alerted. These allowed magistrates to drop charges being heard summarily against an accused with a mental illness – with no finding, record or penalty – on the proviso they undertake a period of treatment or care.

The same diversion orders fall under section 14 of the New Act, however they now apply to an accused person with either a mental health impairment or a cognitive impairment – as per the new statutory definitions – and these orders differ from the old ones in two more distinct ways.

Section 15 provides a non-exhaustive guidance list for magistrates to consider. And section 16 stipulates that if the individual breaches the conditions of their order within 12 months of it being made, they must return to court to face the original charge. This is up from the previous 6 months.

The New Act also makes further reforms to criminal proceedings involving an accused with a mental health issue, which include changes to special hearings, a new defence of mental health impairment or cognitive impairment, as well as a statutory test for fitness to stand trial.

Section 33 of the Old Act permitted a magistrate to send a person appearing before them on a charge being heard summarily to be taken to and detained in a mental health facility for assessment, to be returned to the court if assessed not to be mentally ill or to be released into a person's care.

The court of summary jurisdiction in NSW is the Local Court. It deals with summary offences, which are considered less serious than indictable offences.

And on agreement, the NSW Local Court can also deal with certain indictable offences that can be tried summarily – these are referred to as table matters – as well as federal offences carrying up to 10 years prison time.

The Old Act section 33 provisions are contained in part 2 division 3 of the New Act, which now specifically relate to defendants who are either mentally ill or mentally disordered.

Section 19 of the New Act permits transfer and detention to a facility for assessment, return to court if appropriate or release into the care of a person. Section 20 permits the imposition of a community treatment order upon an accused in accordance with the Mental Health Act 2007 (NSW).

Section 21 extends the powers to transfer an accused to a mental health facility and their return to court to an authorised justice overseeing a bail hearing, while section 22 stipulates how an accused under the age of 18 can be transferred to a facility or return to court under these powers.

Section 23 provides that if an accused has been dealt with under these powers and they haven't been returned to the magistrate within a six month period to have the charge heard, then that charge is understood to have been dismissed.

One further significant change has been made to these powers, in that an accussed being returned to court must be sent there “as soon as practicable”, rather than it being left up to the discretion of police as was the case in the past.

Part 3 of the New Act establishes the statutory defence of mental health impairment or cognitive impairment, which applies in the NSW District and Supreme courts.

This new defence is based on the two definitions contained in part 1 of the legislation and it updates the common law defence of mental illness.

Section 28 of the New Act outlines that a jury can determine whether an accused is not criminally responsible for an offence if they had a mental health impairment or a cognitive impairment at the time of the offence and were unaware of the “nature and quality” of the act, and that it was wrong.

Section 30 of the New Act sets out that if this defence is proven, then it establishes a special verdict of act proven but not criminally responsible.

This replaces the special verdict of not guilty by reason of mental illness contained in section 25 of the Old Act. This change to the defence is beneficial for victims of crime as it spells out that the perpetrator did actually commit the act.

The special verdict can result in an accused being remanded until an alternative order is come to, or their being detained in a place that the court sees fit to hold them until release, there's the options of unconditional or conditional release, or any other appropriate order the court finds.

If the accused is not released unconditionally following the finding of the special verdict, then they must be referred to the Mental Health Review Tribunal (the Tribunal), so it can determine their fate.

The New Act creates a statutory test to ascertain whether a person is mentally fit to stand trial under part 4 division 1. This test reflects the common law fitness to stand trial test already operating within the NSW criminal justice system, which is referred to as the Presser test.

Section 36 contains the test, which finds a person is unfit if they have a mental health or cognitive impairment or if any of the other seven listed reasons apply. These include not understanding the offence, not being able to plead to the charge, or not being able to make a defence to the charge.

Sections 37 through to 46 of the New Act mirror the Old Act in terms of how to determine whether a person is fit to stand trial or not.

While sections 47 to 53 establish a new process for the fitness regime. Rather than all defendants who are deemed unfit to stand trial being sent to the Tribunal, only those who are determined to likely to become fit to stand trial within the next 12 months are referred to that court.

As for those found not likely to become fit to stand trial in the next 12 months, they can be referred onto a special hearing. The sections relating to these hearings are contained under part 4 division 3 of the New Act.

Section 54 of the New Act outlines that special hearings are held to determine whether an accused found not fit to stand trial should be acquitted or whether it can be established based on the criminal standard of proof, and the limited evidence, that the individual committed the offence.

Following a DPP decision to continue with prosecution, special hearings are to take place as soon as practicable. These hearings are run on the basis that the accused has pleaded not guilty.

If the individual is found not guilty due to the special verdict, the court will then sentence them to a limiting term – “the best estimate of the sentence that the court would have imposed on the defendant” if found guilty – and they serve out this term under the supervision of the Tribunal.

NSW attorney general Mark Speakman introduced the New Act on 2 June last year. It was prompted by two NSW Law Reform Commission (LRC) reports – Diversion and Criminal Responsibility – as well as the 2017 Whealy Review of the Mental Health Tribunal.

“The forensic mental health reforms in this bill strike the right balance between the needs of victims and the safety of the community, and the mental health of the offender,” the chief lawmaker of NSW told state parliament during his second reading speech on the legislation.

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