The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) deals with people who have mental health or cognitive impairments who are in contact with the criminal justice system.The main functions of the Act include:
“Mental health impairment” and “cognitive impairment” are defined in
sections 4 and 5 of the Act.
Please see this
Information Bulletin for more details on how this Act changed from the previous one.
The aim of diversion in the local court is to redirect people charged with lower level offences into treatment and support. Diversion is used in less than 2% of all criminal cases in the local court. It has been proven to work to reduce reoffending.
There are broadly two types of diversion.
If the person breaches their orders, they can be returned to court within 12 months to face their charges.
The below applies only to those who have been charged with serious offences that go before the district or supreme courts.
A person may receive a special verdict of "act proven but not criminally responsible" where they had a mental health and/or cognitive impairment such that they could not understand what they were doing, or that it was wrong. The court relies on evidence from experts in reaching its decision. Generally, only persons with severe mental health or cognitive impairment would meet such a threshold.
A person may be deemed "unfit for trial" if they have significant difficulty understanding and participating in court proceedings due to a mental health or cognitive impairment. A modified trial called a "special hearing" may be held instead.
At a special hearing, a person may receive one of the following verdicts:
If a person receives a qualified finding of guilt, the court can impose a penalty, including a limiting term. A limiting term is the equivalent of a custodial (prison) sentence the person would have received if they had been convicted at a usual trial.
The following group of people are regarded as 'forensic patients':
Most forensic patients belong in the third group. While not all forensic patients in this group will have the same pathway in the system, the most common pathway for those who experience a mental health impairment is as follows:
This pathway is not set to any specific time periods, and the person will move to lesser or more restrictive care dependent on their mental state and level of risk to themselves and others.
People with limiting terms will serve at least part of their term in a correctional facility. They can be granted conditional release into the community once they have served sufficient time in custody and if their risk can be appropriately managed in the community. A limiting term can be extended by the Supreme Court if the person continues to pose an unacceptable risk of harm to the public. Once a limiting term finishes, the person is no longer a forensic patient.
The Mental Health Review Tribunal (the Tribunal) makes orders relating to the care, treatment and control of forensic patients. Forensic patients must be reviewed regularly by the Tribunal. See further information below in the section regarding the Tribunal.
There are dedicated mental health areas in the correctional setting that provide mental health care on a voluntary basis. When a prisoner requires involuntary inpatient treatment, they must be transferred to a declared mental health facility. This group is referred to as "correctional patients".
In NSW, male correctional patients are usually sent to Long Bay Hospital (located within the Long Bay Correctional Complex); but they may sometimes be sent to the Forensic Hospital or other mental health facility. Female and adolescent correctional patients requiring involuntary treatment are transferred to the Forensic Hospital. When the person improves, they are discharged back to the correctional facility.
Some persons may be placed on a Forensic Community Treatment Order (FCTO) to continue their care. FCTOs operate similarly to CTOs, requiring that the person adhere to a certain treatment plan.
FCTOs can also be made for any person (including a forensic patient) in a correctional facility that requires mandatory treatment, but does not necessarily need to be admitted as an inpatient. FCTOs are made by the Tribunal and reviewed regularly.
For more information on FCTOs, see the
information kit from the Mental Health Review Tribunal.
The Mental Health Review Tribunal is composed of legal, psychiatric and other suitably qualified persons. The Tribunal is responsible for reviewing and making decisions about forensic patients and correctional patients.
The Tribunal reviews forensic patients usually every six months, and can make orders about where they should be detained, what leave they can access, and when they can be released.
The Tribunal is responsible for granting forensic patients' leave and release. The Act requires that the Tribunal must not grant leave or release unless it is satisfied, based on evidence, that the safety of the person, a registered victim, or any other member of the public will not be seriously endangered (sections 84(2) and 94 (3)).
Before granting release, the Tribunal must be provided with an additional report from an independent expert, not involved in the person's care. This report must address the question of public safety. These independent expert reports are typically provided by the Community Forensic Mental Health Service.
Forensic patients who are on conditional release continue to be reviewed by the Tribunal. If they breach a condition of their release, or if they deteriorate in mental state, the Tribunal can order that they be detained again.
The objectives of the legislation (as it relates for forensic and correctional patients) are outlined in section 69 of the Act. These include:
Decisions made about forensic patients should aim to achieve these objectives as best as possible. Balancing these objectives can be difficult, which is why the Tribunal makes decisions based on expert evidence, and input from the consumers, carers and victims.
Studies show that forensic patients have very low rates of violent re-offending following release: 1.5% in the first year, and 3.1% over an average of 8.4 years.
Although many forensic patients are found not to have been criminally responsible for their offences due to mental health or cognitive impairments, the harm suffered by victims and their families is real.
Victims going through the forensic system can access support from the
Specialist Victims Support Service (SVSS), which is part of the Department of Communities and Justice. The SVSS provides early intervention, crisis referral, planned support, communication, education, and Tribunal process support.
Victims can choose to be notified of Tribunal hearings, breaches and other events. Victims may also make submissions at hearings and can request non-association or geographical restriction orders be made.
If you are a forensic patient and not in prison:
If you are a forensic patient in prison, or you are in a prison hospital because of a mental illness, call the Mental Health Advocacy Service using the inmate phone:
If you have a question about a hearing at the Tribunal, you can contact them on:
If you, or another person are experiencing mental health distress, you can speak to mental health professionals via the
Mental Health Line - available 24/7 at 1800 011 511.