Key aspects of NSW forensic mental health laws are set to change in 2021 following the passage of the Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 (NSW) last month.
The changes will clarify principles involved in key forensic mental health questions including:
- Fitness for trial: Does the defendant have the mental capacity to comprehend and fairly participate in the trial process?
- The insanity defence: Should someone be found not-guilty by reason of their mental illness?
- Diversion: Should we divert an offender away from traditional criminal justice processes into treatment because of a mental health condition?
Many of these changes have come as a result of the NSW Law Reform Commission’s 2013 review of key forensic mental health provisions.
Here is what you need to know.
Fitness for Trial
The process for determining fitness to be tried is outlined under Part 2 of the Mental Health (Criminal Procedure) Act, which empowers a judge to determine fitness on the balance of probabilities.
The classic definition of when a person is fit for trial is contained in the case of R v Presser  VR 45. To be fit for trial, the defendant must be able to:
- understand what they are charged with,
- plead to the charge and exercise their right of challenge,
- understand the general nature of the proceeding, namely that it is an inquiry as to whether they did what they are charged with,
- follow the course of the proceedings so as to understand what is going on in court in a general sense,
- understand the substantial effect of any evidence that may be given against them; and
- make their defence or answer to the charge, by giving necessary instructions to a lawyer and telling them their side of the story.
The changes to NSW forensic mental health law, now make these considerations explicit in a statutory test which states a person will be unfit to be tried if, because the person has a mental health impairment or a cognitive impairment, they cannot:
- Understand the offence
- Plead to the charge
- Understand generally the nature of the proceedings as an inquiry as to whether the person committed the offence
- Make a defence or answer to the charge.
Moreover, the changes establish a new process for determining fitness: enabling a court to decide both whether a person is fit to be tried and whether they are likely to become fit to be tried within 12 months. This avoids the requirement that the latter determination be made by the Mental Health Review Tribunal.
Those who are unlikely to become fit to be tried, will then be able to go through a special hearing process if the Department of Public Prosecutions wishes to continue the case against them.
The Insanity Defence
Section 38 of the Mental Health (Forensic Provisions) Act 1990 currently states that where evidence is given in court which shows that, at the time of the offence, a person was suffering from a mental illness and was not responsible for their actions, the jury must find them ‘not guilty by reason of mental illness’.
The definition of ‘mental illness’ which has traditionally been used for the insanity defence comes from a very old case called M’Naghten which describes insanity as:
‘A defect of reason, from disease of the mind, as not to know the nature and quality of the act [the defendant] was doing; or, if he did know it, that he did not know he was doing what was wrong.’
The new reforms modify this wording of this provision to a ‘defence of mental health impairment or cognitive impairment’ with a new statutory test stating that a person who had a mental health impairment or a cognitive impairment, or both, at the time of carrying out an act offence will not be criminally responsible if:
The impairment had the effect that the person did not know the nature and quality of the act; or that it was wrong because the person could not reason with a moderate degree of sense and composure about whether the act was wrong.
A special verdict by a jury of ‘act proven but not criminally responsible’ due to mental health impairment or cognitive impairment is now required. The reforms also allow a special verdict to be entered by a court at any time in the proceedings if the defendant and the prosecutor agree.
Section 32 of the Mental Health (Forensic Provisions) Act 1990 is commonly used to divert those who suffer from mental conditions away from criminal penalisation and towards getting help and treatment they need.
An order under section 32 could be granted in situations where someone was suffering from a mental condition at the time of the alleged offence, or can be shown to be suffering from an ongoing mental condition during the court proceedings.
The reforms have altered the section 32 order process and replaced them with a new process under Section 14 of the Act.
Other reforms of note include:
- Changes relating to the provision of treatment, care and detention of forensic patients and prisoners.
- Re-enacting provisions establishing a Victims Register for victims of forensic patients,
- Updating the Crimes Act 1900 in relation to the offence and partial defence of infanticide and the partial defence of substantial impairment by abnormality of mind to provide consistent terminology across legislation.
Overall, the changes have the effect of codifying many aspects of the common law in relation to forensic mental health.
Jarryd Bartle practised as a criminal defence lawyer before moving on to specialist consultancy. He has written for several publications including The Guardian, VICE and The Conversation, covering a range of criminal justice-related topics.