Mental Health Act Changes

13 APR 2021


On the 27th March 2021, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into action. The act follows New South Wales Law Reform Commission’s 2013 recommendations and carries changes to key forensic mental health questions. These changes will impact the way judges divert defendants from the criminal justice system into mental health care and facilities as well as court proceedings. 

The old legislation, the Mental Health (Forensic Provisions) Act 1990, saw defence lawyers make applications under section 32 for mental health diversion orders to court for summary offences and indictable offences that can be heard in a local court. With a successful application, the magistrate could make orders to gain treatment and avoid criminal conviction and penalty. These applications must be supported by evidence from a mental health professional. These professionals would further provide a course of action that would benefit both the community and the defendant. If within six months the course of action fails, the defendant could be brought back before the court and have their matter heard as if they had not been placed aside in the first place. 

Under the new legislation, mental health orders are heard under section 14. There are some significant changes to these orders. First is now an order does not constitute a finding for the charge. This move was made to put more of a focus on victims in offences where mental health orders are made. Section 4 of the new act provides a definition for ‘mental health impairment’ and section 5 provides a definition for ‘cognitive impairment’, allowing for clearer determinations and provides a “clinical benchmark” for magistrates to reach. Section 15 provides a non-exhaustive list of what the magistrate must refer to when questioning whether a diversion order should be made, relying on common law principles as well as new statutory considerations. One of these new statutory considerations is that the victims and community must be taken into consideration when making an order. Finally, the defendant can be brought back into the court up to 12 months after the order has been issued, in comparison to the 6 months that was under the old legislation. 

“Fitness for trial” also comes under these changes, with the new model for fitness for trial becoming an explicit statutory test under section 36, based upon McNaughten and R v Presser. If a defendant does not qualify for the test, a special hearing may be ordered, or the matter may be referred to the Mental Health Review Tribunal. 

The new legislation brings a change to the wording of the verdict. Instead of “not guilty by reason of mental illness”, the 2020 act changes the wording to “act proven but not criminally responsible”. The change comes from victim calls to change the verdict, as “not guilty” undermined the offence occurring. Under these new provisions, a special verdict can now be delivered by the court if both the defence and prosecution agree to one. 

The new act also updated the Crimes Act 1900 (NSW) and codifies the common law into legislation.   

Proceedings commenced on or after the 27th March 2021 will follow the new act, while those proceedings that were started or in the process of being heard before the 27th will follow the old mental health act. 

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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