New legislation has made specific changes to the old section 32 Mental Health Act provisions, giving courts better guidance on what they need to consider before diverting a defendant away from the criminal justice system and into mental health care and treatment.

These changes are in response to recommendations made by two NSW Law Reform Commission reports.

The old Mental Health (Forensic Provisions) Act 1990 has now been replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Recommendations of NSW Law Reform Commission reports

The two reports conducted by the NSW Law Reform Commission in 2012 and 2013 were focused on people with cognitive and mental health impairments in the criminal justice system.

The report from 2012 addressed the diversion of people with mental health impairment (MHI) and cognitive impairment (CI) into mental health care and treatment.

Providing direction on diversion order decisions, the report included guidance on how to ensure the safety of victims and the community.

It also recommended extending the time for which a court can supervise treatment. (See Report 135: People with cognitive and mental health impairments in the criminal justice system: Diversion.)

The 2013 report addressed criminal responsibility and consequences for people with MHI or CI when they are charged with more serious offences.

Often, defendants in the higher courts are referred to the Mental Health Review Tribunal and become forensic patients. (See Report 138: People with cognitive and mental health impairments in the criminal justice system: Criminal Responsibility and Consequences.)

Together, the reports recommended the new Act to include a statutory definition of MHI and CI, a statutory test of fitness to be tried, along with the defence of MHI or CI and partial defences in the Crimes Act 1914 of substantial impairment and infanticide. (For example, under NSW law, a woman who causes the death of her child while suffering from post-natal depression or other complications after birth, such that "the balance of her mind was disturbed", is found guilty of "infanticide", equivalent to manslaughter, instead of murder.)

Primary objectives of the new Act

In his Second Reading Speech on the Mental Health and Cognitive Impairment Forensic Provisions Bill 2020, Attorney General, Mark Speakman, said:

First, the law may deal with people with mental health impairment or cognitive impairment accused of low-level offending differently, contingent on that person seeking treatment and support, reducing the likelihood of reoffending.

Secondly, unfit people who are accused of serious offences should not be tried using ordinary criminal processes, but their matter should be resolved in a special hearing as soon as possible. Thirdly, the safety of the community is a consideration in decision-making, including by the courts or by the tribunal.

Mr Speakman went on to state:

First and foremost, [the bill] aims to protect victims and the community. Secondly, it aims to ensure that people with mental health impairment or cognitive impairment who commit crime receive the treatment, support and supervision they need to get well and to prevent reoffending. Thirdly, it provides clear language, structure and processes, enabling efficient and effective responses to people with mental health and cognitive impairment who come into contact with the criminal justice system.

New act provides definitions of "mental health impairment" and "cognitive impairment"

Section 4 and section 5 of the new Act now provide clear definitions for both MHI and CI. These were previously undefined in section 32 of the Mental Health (Forensic Provisions) Act.

Mental health impairment is now defined as a temporary or ongoing disturbance that would be significant for clinical diagnostic purposes and that "impairs the person's emotional wellbeing, judgement or behaviour. This can arise from an anxiety disorder, and affective disorder (mood), a psychotic disorder or a substance-induced disorder that is not temporary."

Sadness, grief or anger would not meet the test, nor would the temporary effect of takings drugs or alcohol with no other clinically significant mental health impairment.

Cognitive impairment is where a person has an "ongoing impairment in adaptive functioning and comprehension, reasoning, judgement, learning or memory, which has resulted from damage or dysfunction to the brain or mind. Cognitive impairment may arise from intellectual disability, dementia, autism or foetal alcohol spectrum disorder."

Section 32 of Mental Health (Forensic Provisions) Act overhauled

Under section 32 of the Mental Health (Forensic Provisions) Act, the Local Court had the power to divert low-level offenders suffering from mental ill health into a treatment facility for assessment and care.

This aimed to reduce re-offending by addressing and treating or controlling the offending behaviour. (The Kirby Institute at the University of NSW has found the re-offending rate of people who enter into treatment, rather than going through the justice system, to be only 12 per cent.)

However, the magistrate only had six months to call the person back to court if they breached the order. The new Act has extended this period to 12 months.

What does the new legislation mean for defendants, victims and the community?

Section 15 of the new Act provides a list of factors that the court can now take into account when making a diversion decision. These include the seriousness of the offence, criminal history and the alternative sentencing options under criminal law.

Under the new Act, other factors that should be considered concerning the defendant include whether the person has a history of diversion orders and whether there is a proper treatment plan.

The treatment plan must include details of treatment, name the supervising doctor and state the location of treatment. The supervising doctor is also required to report any breach of the order to the court.

Critically, the new Act stresses that a court also needs to consider the safety of victims and the community when it makes its decision.

Additionally, if the defendant does not comply with treatment, the court can call them back within 12 months of the order being made.

Section 33 is now covered by section 18 to section 24 in the new Act and remains mostly unchanged.

New legislation includes "Fit for Trial" test

The new Act outlines what constitutes fitness to plead, a test which is modelled upon the Presser Test and the M'Naghten definition of "disease of the mind". Section 36 of the new Act outlines the fitness test, detailing if and when the trial process can be modified to facilitate the defendant's understanding and participation.

If the defendant is not fit for trial, they may be required to attend a special hearing. Alternatively, they may be referred to the Mental Health Review Tribunal, where it is determined when they will be fit, to ensure there is a minimal delay in proceedings.

"Not guilty by reason of mental illness" no longer applies

Legislating the common law test for defence of mental illness, the new Act rewrites the special verdict of "not guilty by reason of mental illness" to an "act proven but not criminally responsible" due to MHI or CI. This acknowledges that the person recognises they did do an act which had consequences.

Mirroring the M'Naghten test but with updated terms, the court takes the victim's concerns into consideration. The M'Naghten test raises the defence of MHI, by asserting that at the time of carrying out the relevant act the person was "labouring under a defect of reason caused by a disease of the mind".

Due to the disease, the defendant "did not know the nature and quality of the act, did not know the act was wrong and could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong."

Prior to the new legislation, the term "not guilty" caused much concern amongst victims because it implied that the defendant had not done the act.

"Not guilty" has now been changed to "not criminally responsible" and people with MHI or CI are referred to the Mental Health Review Tribunal to be assessed as a forensic patient.

They are then detained or supervised until the Tribunal determines they are well enough not to be a risk to the community.

The new Act also introduces the special verdict by consent when prosecution and defence are in agreement that a special verdict should be found.

Mark Warren
Criminal law
Stacks Collins Thompson

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