If someone is charged with an offence, the Mental Health Court must decide whether the defendant is:
- of unsound mind
- of diminished responsibility (if the charge is murder)
- unfit for trial (either permanently or temporarily).
Of unsound mind or unfit for trial
If the court decides that the defendant was of unsound mind at the time of the offence, or is permanently unfit for trial, it may make a forensic order, detaining them in an authorised mental health facility or a high security unit for treatment or care (possibly with limited community treatment).
In doing this, the court will consider the patient’s treatment, security needs and community safety.
Of unsound mind
A finding of unsoundness of mind means the person isn’t criminally responsible for their actions. The criminal proceedings against them are discontinued and the person can never be prosecuted in the criminal courts for this particular offence.
A person is considered not criminally responsible for an offence if, at the time, they were in such a state of mental disease or natural mental infirmity that they were deprived of the capacity to:
- understand what they were doing
- control their actions
- know that they shouldn’t do the act or make the omission.
Doesn’t include a state of mind resulting, to any extent, from intentional intoxication or stupefaction either alone or in combination with another agent at the time of the offence.
If the charge is murder, the Mental Health Court may find that, although a person was not of unsound mind, they did have a substantially impaired capacity to understand what they were doing, control their actions or know they shouldn’t do the act or make the omission.
If the court finds diminished responsibility, a murder charge is replaced with a manslaughter charge because a person whose capacities are substantially impaired has less criminal responsibility for their actions.
Unfit for trial
A person is unfit for trial if they can’t understand the nature of the trial proceedings or the meaning of entering a plea of guilty or not guilty, or can’t instruct their legal representatives. It may also mean they can’t endure their trial without their mental state seriously deteriorating.
A person may be temporarily or permanently unfit for trial.
Permanently unfit for trial
If the court decides the person is permanently unfit for trial, the criminal proceedings against them are discontinued.
Temporarily unfit for trial
If the court decides the person is unfit for trial temporarily, the court must make a forensic order.
There are regular reviews of the person’s fitness for trial by the Mental Health Review Tribunal and the criminal proceedings continue once the person becomes fit for trial.
If the person remains unfit for trial for three years, criminal proceedings are discontinued. This is extended to seven years if the person is charged with an offence carrying a maximum sentence of life imprisonment.
Read about reviews of forensic patients.
Of sound mind or facts are disputed
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 case is returned to a criminal court to proceed in the usual way.
The defendant may be held in custody, granted bail, detained in an authorised mental health facility pending bail or trial, or granted limited community treatment in the community.