A criminal case may be referred to the Mental Health Court if it’s believed the alleged offender is or was mentally ill or has an intellectual disability. Once referred, a hearing date is set.
What happens in a hearing?
The Mental Health Court hears matters in Brisbane and conducts hearings via videoconferencing. In a hearing, the court looks at criminal responsibility and fitness for trial. It can also shift offenders who are mentally ill or intellectually disabled from the criminal justice system to the mental health system.
The court will investigate how the defendant's mental illness relates to the alleged offences. This will help decide if they are criminally responsible.
It’s important to note that this isn’t a trial.
What the Mental Health Court considers
The court considers:
- oral evidence from expert witnesses
- evidence, including any criminal history (from police or Office of the Director of Public Prosecutions)
- medical reports
- written submissions from the parties
- relevant material submitted by victims or concerned persons that is not part of the brief of evidence.
What the Mental Health Court decides
The court answers these questions:
- Was the person ‘of unsound mind’ when the alleged offence occurred?
- Are they unfit for trial? Is this temporary or permanent?
- If charged with murder, were they suffering from ‘diminished responsibility’?
The court decides if the person is:
- of unsound mind
- of diminished responsibility (for murder charges)
- temporarily or permanently unfit for trial.
Read more about court decisions and the definitions of these terms.
Attending hearings
Most hearings in the Mental Health Court are open to the public. However:
- the court may order a hearing, or parts of it, to be closed to the public in the interests of justice
- hearings involving young people (under the age of 18) are not open to the public
- 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.
Publishing proceedings
You cannot publish details of court or tribunal proceedings without permission from Mental Health Court or Mental Health Review Tribunal.
This includes:
- tribunal decisions
- appeals against tribunal decisions
- court decisions unless specific time periods have passed.
You cannot publish anything identifying someone under 18 involved in the case.
Breaking these laws can lead to fines or up to two years in prison.
When can information be published?
The court will grant permission if the publication is in the public interest, and the report doesn’t identify the patient, witnesses, or anyone else involved in the proceedings.
For a reference in the Mental Health Court or Court of Appeal, you must not publish a report of a proceeding, or a decision on a proceeding, unless certain time periods have elapsed.
For example, if the decision:
- results in the defendant being brought to trial, you can only publish the decision at the end of the criminal trial
- does not result in the defendant being brought to trial, and there is no appeal, you can only publish the decision 28 days after it is made
- is appealed to the Court of Appeal, further restrictions on publication apply, depending on whether the Court of Appeal decides the defendant should be brought to trial.
See sections 693 – 696 and sections 788–793 of the Mental Health Act 2016 for more information on confidentiality requirements.
Victim notifications
If you’re a victim of violent crime, the Office of the Director of Public Prosecutions (ODPP) can keep you updated on hearing dates and decisions.
Provide your current contact details to the ODPP to stay informed.
