The provisions under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) aim to divert individuals with mental health issues away from the criminal justice system and towards rehabilitation or other programs that will assist an individual’s wellbeing.
Questions of mental capacity can arise at 3 stages in the course of criminal proceedings:
- Whether person charged is fit to stand trial
- Whether an accused person successfully raises the defence of mental health or cognitive impairment
- Mental health or a cognitive impairment may be a significant factor in sentencing by dismissing charges or reducing moral culpability
WHAT IS A MENTAL HEALTH IMPAIRMENT?
Section 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) defines mental health impairment.
A person has a mental health impairment if:
- the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
- the disturbance would be regarded as significant for clinical diagnostic purposes, and
- the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.
A mental health impairment may arise from any of the following disorders but may also arise for other reasons:
- an anxiety disorder,
- an affective disorder, including clinical depression and bipolar disorder,
- a psychotic disorder,
- a substance induced mental disorder that is not temporary.
A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by:
- the temporary effect of ingesting a substance, or
- a substance use disorder.
WHAT IS A COGNITIVE IMPAIRMENT?
Section 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) defines cognitive impairment.
A person has a cognitive impairment if:
- the person has an ongoing impairment in adaptive functioning, and
- the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
- the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.
A cognitive impairment may arise from any of the following conditions but may also arise for other reasons:
- intellectual disability,
- borderline intellectual functioning,
- an acquired brain injury,
- drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
- autism spectrum disorder.
FITNESS TO STAND TRIAL
A person that is unfit to stand trial is a person that would be incapable of understanding the nature or purpose of the proceedings or incapable of communicating with the court or counsel for the purposes of conducting a defence.
This will only apply to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and the District Court. The court, defence or prosecution can raise the question of fitness to stand trial.
A person is taken to be unfit to be tried for an offence if the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following:
- understand the offence the subject of the proceedings,
- plead to the charge,
- exercise the right to challenge jurors,
- understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
- follow the course of the proceedings so as to understand what is going on in a general sense,
- understand the substantial effect of any evidence given against the person,
- make a defence or answer to the charge,
- instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,
- decide what defence the person will rely on and make that decision known to the person’s legal representative and the court
- or any other ground a court considers to be relevant
MENTAL HEALTH OR COGNITIVE IMPAIRMENT DEFENCE
New laws came into effect on 27 March 2021 to divert individuals with mental health and cognitive impairments away from the criminal justice system. These laws are contained in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The mental illness defence is now referred to as a defence of mental health impairment or cognitive impairment and is found under section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
This is a complete defence which means that if at the time of the offence you were effected by a mental health impairment or cognitive impairment or both, you will not be held criminally responsible for the offence.
To raise this defence, you have to prove to the court on the balance of probabilities that:
- You did not know the nature and quality of the act or
- You did not know the act was wrong
If this defence is successfully raised and a special verdict of act proven but not criminally responsible is determine, the court may make one or more of the following orders:
- an order that the defendant be remanded in custody until a further order is made under this section,
- an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,
- an order for the unconditional or conditional release of the defendant from custody,
- other orders that the court thinks appropriate.
If ordered by the court to be detained at a mental health facility as a forensic patient, an individual’s detention will be reviewed by the Mental Health Tribunal every 6 months. The Mental Health Tribunal can order a person’s release if satisfied that the individual is not a serious danger to anyone in the community.
MENTAL HEALTH APPLICATIONS IN THE LOCAL COURT
A Magistrate may order to dismiss a charge under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). This allows for a person suffering from a mental health or cognitive impairment to avoid a criminal record.
A Magistrate will discharge the defendant:
- into the care of a responsible person, unconditionally or subject to conditions, or
- on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant’s mental health impairment or cognitive impairment, or
If you have been charged with an offence and believe that you suffer from a mental health or cognitive impairment it is important to get into contact with a criminal defence lawyer. At S.A.S Lawyers we can guide you through your options and assist in an application for a dismissal of charges by a section 14 order.
WHO IS A RESPONSIBLE PERSON?
A responsible person may be any health professional such as a psychologist, psychiatrist, counsellor or, in some cases, a general practitioner. A responsible person can also be a parent or family member.
WHAT IS A MENTAL HEALTH TEATMENT OR SUPPORT PLAN?
A treatment or support plan means a plan outlining programs, services or treatments or other support that may be required by a defendant to address the defendant’s apparent mental health impairment or cognitive impairment. A treatment or support plan may involve a number of conditions such as seeing a psychologist, psychiatrist, counsellor on a regular basis or taking prescribed medication.
A mental health treatment or support plan can last for up to 12 months.
WHAT IF YOU BREACH A SECTION 14 ORDER?
It is important to comply with a section 14 order because if you fail to comply with a condition within 12 months of the discharge a Magistrate may deal with the charge as if you had not been discharged. This means that you are at risk of being convicted and facing a criminal record or other penalties.