Common questions
Mental Health Court - criminal
What does 'diminished responsibility' mean?
Means the state of abnormality of mind as described in the Criminal Code Act 1899, section 304A.
What does 'fit for trial' mean?
Means someone who is fit to stand trial and instruct counsel without serious adverse consequences for their mental state.
If the Mental Health Court decides the person is unfit for trial, the court must also decide whether the unfitness for trial is of a temporary or permanent nature.
What does 'of unsound mind' mean?
Means the state of mental disease or natural mental infirmity as described in section 27 of the Criminal Code Act 1899 but does not include a state of mind resulting from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.
Are hearings open to the public?
Most hearings in the Mental Health Court are open to the public. However, the following exceptions apply:
- The court may order a hearing, or parts of it, to be closed to the public if it is in the interests of justice.
- Hearings involving young people (under the age of 17) are not open to the public. However, the court may permit another person to be present if it is in the interests of justice.
- The appeal of a decision made by the Mental Health Review Tribunal is not open to the public unless the court makes an order allowing others to be present.
How can someone be referred to the Mental Health Court?
The Director of Mental Health, the Director of Public Prosecutions, the Attorney-General, the trial judge, the defendant or their legal adviser may refer a defendant to the Mental Health Court.
This reference is made by filing a Form 1 – Reference by trial judge (MHA) or Form 2 – Reference general (MHA) in the Mental Health Court registry. The form must be accompanied by an expert’s report that documents their examination of the defendant.
Can a reference be withdrawn?
An application can be made to withdraw the reference at any time before the Mental Health Court makes its decision by filing a Form 10 – Application to withdraw reference (MHA) in the court registry or by making an oral submission at the hearing.
The court may grant or refuse this application.
Can the court order the examination of a defendant?
The court can order a defendant to submit to an examination by a court nominated psychiatrist or health practitioner. The court may make this order on its own initiative, at the recommendation of an assisting psychiatrist or following a request by the Director of Public Prosecutions.
Special powers also permit defendants to be admitted, if necessary, to an authorised mental health facility for the examination.
What material is considered by the court?
The court may consider:
- oral evidence from expert witnesses
- the brief of evidence including a criminal history (provided by police or the Office of the Director of Public Prosecutions)
- all medical reports relating to the matters to be decided in the court
- written submissions from the parties
- relevant material submitted by victims or concerned persons that is not part of the brief of evidence.
What does the court decide?
The court determines issues such as criminal responsibility and fitness for trial, and may remove mentally ill and intellectually disabled offenders from the criminal justice system into the mental health system.
The court will conduct an inquiry into the relationship between the defendant’s mental illness and the alleged offences to determine criminal responsibility. This is not a trial and the court may consider reports and evidence which may not be admissible in another court.
If someone is charged with an offence, the court will decide if the defendant is:
- of unsound mind
- of diminished responsibility (if the charge is murder)
- unfit for trial
- permanently unfit for trial.
What kind of orders can the court make?
The court can make forensic, custody, detention, non-contact and other orders.
What is the effect of the court’s decision?
1. If the facts of the case are disputed or the court decides that the defendant was not of unsound mind (when they committed the offence), and is fit for trial, the matter will be returned to the original court. The defendant may be remanded in custody, granted bail, detained in an authorised mental health facility pending bail or trial, or granted limited community treatment in the community.
2. If the court decides that the defendant was of unsound mind, or is unfit for trial, it may make a forensic order. The court will consider the patient’s treatment, security needs and the safety of the community.
Under the order, the defendant may be detained in an authorised mental health facility or a high security unit for treatment or care. The court also has the authority to order limited community treatment. This will allow the defendant to reside in the community with active monitoring by a mental health service and regular reviews by the Mental Health Review Tribunal.
3. If the defendant is charged with a personal offence, and a forensic order is not made, the court can make a non-contact order concerning the victim of the alleged offence. Non-contact orders are registered with the police and filed in the Magistrates Court stated in the order.