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Considerations for Persons Suffering from Mental Conditions

If the Court deems a person a sufferer of a mental illness or mental condition, that person may be eligible to avoid sentencing under the criminal law, and instead receive treatment for their illness or condition, under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

  1. Who is eligible for a Section 32?
  2. What orders can be made under a Section 32?
  3. Raising Fitness to be Tried
  4. Determining Fitness to be Tried
  5. Functions of the Mental Health Review Tribunal
  6. Conduct of the Hearing before the Mental Health Review Tribunal
  7. Orders of the Mental Health Review Tribunal
  8. Special Hearings

1. Who is eligible for a Section 32?

Anyone who at the commencement or at any time during proceedings it appears to the Magistrate is:

  1. Developmentally disabled;
  2. Suffering from mental illness; or
  3. Suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person.
[Mental Health (Forensic Provisions) Act 1990 (MHA), s32]

The court must give applicants an opportunity to address the question of whether their case warrants an order under section 32. [Khalil v His Honour, Magistrate Johnson (2008)]

2. What orders can be made under a Section 32?

The magistrate may do any one or more of the following:

  1. Adjourn the proceedings;
  2. Grant bail; or
  3. Any other order the Magistrate considers appropriate.

The Magistrate may dismiss the charge and discharge the defendant:

  1. Into the care of a responsible person, unconditionally or subject to conditions;
  2. On the condition that the defendant undertake an assessment of their mental condition, undertake treatment, or both; or
  3. Unconditionally.

A decision to dismiss a charge does not constitute a finding of guilty or not guilty. [MHA s32]

The Magistrate in addition to the above may order that the person be detained in a hospital for assessment by a member of the Police Force [MHA s33]

3. Raising Fitness to be Tried

If a person’s unfitness to be tried is raised before a person is arraigned, the Attorney-General must determine whether an inquiry should be conducted before the hearing proceeds. A submission detailing the circumstances of the case must be made to the NSW Attorney-General’s department. [MHA s8]

If a person’s unfitness to be tried is raised after arraignment, the Court must hear submissions relating to conducting an inquiry in the absence of any jury. [MHA s9]

4. Determining Fitness to be tried

The Court must conduct the inquiry into whether the person is fit to be tried. [MHA s10]

The question of a person’s fitness to be tried is determined on the balance of probabilities. [MHA s6] The onus of proof does not rest on any particular party [MHA s12].

Before conducting an inquiry, the Court may do any one of the following:

  1. Adjourn proceedings
  2. Grant bail
  3. Remand the accused in custody for a period not exceeding 28 days
  4. Request the accused undergo a psychiatric examination
  5. Request that a psychiatric report be obtained.
[MHA s10]

If the Court considers that it is inappropriate to punish the accused, having regard to the trivial nature of the offence and/or the nature of the person’s disability, the court may dismiss the charge. [MHA s10]

If a person is found unfit to be tried the court must refer the person to the Mental Health Review Tribunal. Pending the determination of the Tribunal the court may:

  1. Adjourn proceedings;
  2. Grant bail; or
  3. Remand the person until the determination of the tribunal has been completed.
[MHA s14]

5. Functions of the Mental Health Review Tribunal

The tribunal must determine on the balance of probabilities whether during the period of twelve (12) months after the finding of unfitness, the person will become fit to be tried.

If the tribunal determines that in the next twelve (12) months the person will become fit to be tried, the tribunal must also determine whether:

  1. The person is suffering from mental illness; or
  2. The person is suffering from a mental condition for which treatment is available in a hospital.
[MHA s16]

6. Conduct of the Hearing before the Mental Health Review Tribunal

At the hearing, one or more health care professionals (such as the treating doctor, a social worker or a case manager) will give evidence about the need for the order that the treating team is requesting. Primary carers nominated by the client are also able to tell the Tribunal how they view the proposed order. The client will have the opportunity to give his or her view about the order being sought.

The tribunal conducts hearings in an informal way. Hearings are not bound by the rules of evidence and members of the tribunal will ask questions to gather the information needed. The tribunal reviews are open to the public and it may be possible for relatives to attend hearings and make oral submissions.

Any person before the tribunal is entitled to have legal representation. The Mental Health Advocacy Service provides free legal aid for many types of hearings. Someone who is not a lawyer can represent the person affected by the order, provided the tribunal agrees to this.

7. Orders of the Mental Health Review Tribunal

The MHRT can make the following orders:

  1. Community Treatment Order
    Sets out the terms under which a person must accept medication, therapy, counselling, management or rehabilitation while living in the community. If a person breaches a CTO they can be confined to a mental health care facility. A CTO can be made for a period of up to (twelve) 12 months.
  2. Voluntary Patient Order
    Offenders may opt to be placed in a mental health facility or hospital or undertake a CTO for a period not exceeding (twelve) 12 months
  3. Involuntary Patient Order
    Detention of a mentally ill person in a mental health facility for a period not exceeding twelve (12) months
  4. Review of Forensic Patients
    A forensic patient is someone who has either been declared unfit to stand trial or who have been found not guilty on the grounds of mental illness. These cases are to be reviewed once every six (6) months
  5. Direct that a special hearing take place in respect of the offence
  6. Advise that proceedings in respect of the offence will cease.
[MHA ss17, 18]

8. Special Hearings

If it appears to the jury that the person committed the offence but was mentally ill at the time, the jury must return a verdict of not guilty on the grounds of mental illness [MHA s38]

If found not guilty by reason of mental illness, the person is to be detained in strict custody for a period determined by the court. [MHA s39]

How can Sydney Criminal Defence Lawyers help?

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Call us now on 1300 885 646 or book an appointment with one of our solicitors.

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