Mental Health (Forensic Provisions) Act provisions replaced by new legislation in NSW
25th Mar 2021
New legislation has made specific changes to s32 of the Mental Health (Forensic Provisions) Act 1990 (the old Act) provisions, giving courts better guidance on what needs to be considered before diverting a defendant away from the criminal justice system and into mental health care and treatment.
These changes are in response to recommendations made by two NSW Law Reform Commission reports.
The old Act has been replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the new Act).
Recommendations of NSW Law Reform Commission reports
The two reports conducted by the NSW Law Reform Commission in 2012 and 2013 were focused on people with cognitive and mental health impairments in the criminal justice system.
The report from 2012 addressed the diversion of people with mental health impairment (MHI) and cognitive impairment (CI) into mental health care and treatment.
The 2013 report addressed criminal responsibility and consequences for people with MHI or CI when they are charged with more serious offences.
Together, the reports recommended that the new Act include a statutory definition of MHI and CI and a statutory test of fitness to be tried, along with the defence of MHI or CI and partial defences in the Crimes Act 1914 (Cth) of substantial impairment and infanticide.
New Act provides definitions of ‘mental health impairment’ and ‘cognitive impairment’
‘Mental health impairment’ is now defined as a temporary or ongoing disturbance that would be significant for clinical diagnostic purposes and ‘impairs the person’s emotional wellbeing, judgement or behaviour. This can arise from an anxiety disorder, and affective disorder (mood), a psychotic disorder or a substance-induced disorder that is not temporary.’
Sadness, grief or anger would not meet the test, nor would the temporary effect of takings drugs or alcohol with no other clinically significant mental health impairment.
‘Cognitive impairment’ is where a person has an ‘ongoing impairment in adaptive functioning and comprehension, reasoning, judgement, learning or memory, which has resulted from damage or dysfunction to the brain or mind. Cognitive impairment may arise from intellectual disability, dementia, autism or foetal alcohol spectrum disorder.’
What does this mean for defendants, victims and the community?
Section 15 of the new Act provides a list of factors that the court can now take into account when making a diversion decision. These include the seriousness of the offence, the defendant’s criminal history, and the alternative sentencing options under criminal law.
Under the new Act, other factors that should be considered concerning the defendant include whether the person has a history of diversion orders and whether there is a proper treatment plan.
The treatment plan must include details of treatment, the name of the supervising doctor and the location of treatment. The supervising doctor is also required to report any breach of the order to the court.
Critically, the new Act stresses that a court also needs to consider the safety of victims and the community when it makes its decision.
Additionally, if the defendant does not comply with treatment, the court can call them back within 12 months of the order being made.
New legislation includes ‘fit for trial’ test
The new Act outlines what constitutes fitness to plead, a test which is modelled upon the Presser test and the M’Naghten definition of ‘disease of the mind’. Section 36 of the new Act outlines the fitness test, detailing if and when the trial process can be modified to facilitate the defendant’s understanding and participation.
If the defendant is not fit for trial, they may be required to attend a special hearing. Alternatively, they may be referred to the Mental Health Review Tribunal for a determination regarding when they will be fit in order to minimise delay in proceedings.
‘Not guilty by reason of mental illness’ no longer applies
Legislating the common law test for the defence of mental illness, the new Act rewrites the special verdict of ‘not guilty by reason of mental illness’ to an ‘act proven but not criminally responsible’ due to MHI or CI. This acknowledges that the person recognises that they have committed an act which had consequences.
Mirroring the M’Naghten test (but with updated terms), the court takes the victim’s concerns into consideration. The M’Naghten test raises the defence of MHI by asserting that at the time of carrying out the relevant act, the person was ‘labouring under a defect of reason caused by a disease of the mind’.
Due to the disease, the defendant ‘did not know the nature and quality of the act, did not know the act was wrong and could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong’.
Prior to the new legislation, the term ‘not guilty’ caused much concern among victims because it implied that the defendant had not committed the act.
‘Not guilty’ has now been changed to ‘not criminally responsible’, and people with MHI or CI are referred to the Mental Health Review Tribunal to be assessed as forensic patients.
They are then detained or supervised until the Tribunal determines that they are well enough not to be a risk to the community.
The new Act also introduces the special verdict by consent when the prosecution and defence agree that a special verdict should be found.
Mark Warren is a lawyer in the criminal law team at Stacks Collins Thompson. He enjoys working in advocacy and in the courts. Mark helps many people from disadvantaged backgrounds and those facing significant challenges, such as drug and alcohol addiction and mental health problems.
Before becoming a lawyer, Mark worked in the not-for-profit and social justice sector in media and communications roles. He spent 20 years as a television and radio journalist and reporter. Mark holds a science degree majoring in psychology and neurophysiology and an arts degree majoring in politics and Indigenous studies in addition to his legal qualifications.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 See for example s22A of the Crimes Act 1900 (NSW), a woman who causes the death of her child while suffering from post-natal depression or other complications after birth, such that ‘the balance of her mind was disturbed’, is found guilty of infanticide – equivalent to manslaughter instead of murder.