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Forensic Mental Health Reform 

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Summary of reform

The NSW Government is improving victims’ opportunities to be involved in criminal cases involving people with cognitive and mental health impairments.

Key changes

A bill has been introduced in parliament to improve the forensic mental health system for victims. As a result:

  • Victims of forensic patients (persons found unfit to plead and not acquitted or not guilty by reason of mental illness) will have the right to make victim impact statements to the Court. The court must pass these statements on to the Mental Health Review Tribunal (the Tribunal).
  • Victims will be able to request that the Court consider withholding their victim impact statement from a defendant or forensic patient.
  • Victims will be able to make submissions to the Tribunal during hearings relating to a forensic patient's leave or release, and request that the Tribunal consider withholding their submissions from a forensic patient.
  • The Charter of Victims Rights will specifically acknowledge victims of forensic patients.
  • A new object to protect the safety of victims of forensic patients, and acknowledge the harm done to them, will be included in the Mental Health (Forensic Provisions) Act 1990.
  • A Victims Register managed by Victims Services (currently known as the Mental Health Review Tribunal Victims Register or Forensic Patient Victims Register) will notify registered victims about Tribunal hearings involving forensic patients, and the determinations of those hearings.
  • A forensic patient's limiting term (the sentence that would have been imposed in a normal trial process) can be paused for the time they are unlawfully absent from a mental health or other place where they are detained.  
  • The Tribunal will be able to order monitoring to better supervise forensic patients on leave or conditional release.
  • The Tribunal will be able to revoke the conditional release of a forensic patient who has been apprehended after breaching a condition of their release. 
  • Courts will be able to seek reports from an independent expert psychiatrist and submissions from relevant carers to inform their decisions regarding the release of a person found unfit to stand trial and not acquitted, or not guilty by reason of mental illness.
  • Forensic material, such as DNA, taken from people who are found unfit to stand trial and not acquitted or not guilty by reason of mental illness will be retained in the same circumstances as if the person had been convicted of a crime.  

Next year:

  • A Specialist Victims Support Service will be established.
  • The Mental Health (Forensic Provisions) Act 1990 will be overhauled:
    • Legal terms, including the verdict 'not guilty by reason of mental illness', will be revised.
    • Legal processes will be simplified and the role of the courts and the the Tribunal will be clearer.  
    • The framework for diverting people with cognitive and mental health impairment, charged with low level offending, into the health and disability sector will be strengthened.  

Related information

The new legislation will give victims a stronger voice and better protect their rights and safety while maintaining the fair treatment of people with cognitive and mental health impairments in the justice system.

These reforms are important, as the current system treats victims of forensic patients differently to victims in normal criminal proceedings. For example, the current system does not allow victims to make a victim impact statement (VIS) where the accused person is found not guilty by reason of mental illness, or found unfit to be tried and acquitted of the offence at a special hearing. In contrast, if the defendant is convicted in normal criminal proceedings for various offences of personal violence, the victim is entitled under the Crimes (Sentencing Procedure) Act 1999 to make a VIS to the court before sentencing.

The reforms allow victims of persons found not guilty by reason of mental illness or unfit to be tried and acquitted of the offence at a special hearing, to submit a VIS to the court where the offence:

  • resulted in the death of, or actual physical bodily harm to, any person, or
  • involved an act of actual or threatened violence, or
  • is one that may attract a higher maximum penalty if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or
  • was a prescribed sexual offence.

The reforms also improve the current system by giving victims of forensic patients greater access to information about Tribunal processes involving forensic patients, and provide more avenues for victims to participate in Tribunal proceedings.

The new legislation will implement changes to more effectively acknowledge victim experiences, give them stronger safety protections, expand opportunities for their engagement with the criminal justice and forensic mental health systems, and better balance the interests of victims, communities and patients.

These changes build on the recommendations of the NSW Law Reform Commission reports on people with cognitive and mental health impairment in the criminal justice system and the report of the 2017 Review of the Mental Health Review Tribunal in relation to forensic patients. These reports involved extensive consultation with victims, health and disability agencies and the legal profession.

Expected benefits

This reform is expected to:

  • clarify and expand the rights of victims of forensic patients
  • improve information sharing to victims of forensic patients
  • improve victims' experiences and give them a greater voice in the legal process through the courts and the Tribunal
  • increase support for victims of forensic patients
  • improve community safety
  • improve the justice system.

How will the changes work in practice? 

Supporting victims

Victim impact statements

Under the reforms, victims will have the right to submit a VIS to the court, if, had the defendant been convicted in normal criminal proceedings the victim would have been entitled under the Crimes Act (Sentencing Procedure) Act 1999 to make a VIS, and:

  • the person charged was found unfit to stand trial and not acquitted. This means that at the time of the criminal proceedings, the person's cognitive and/or mental health impairment was so serious that they met the legal test (which requires, for example, that they could not understand and participate fairly in the hearing of their case), or  
  • the person charged received the verdict currently known as 'not guilty by reason of mental illness'. To receive this verdict, the person's cognitive and/or mental health impairment must have been so serious that they met the high legal test (which requires, for example, that at the time of the offence they could not understand the nature or consequences of their actions).

The court must pass the VIS to the Tribunal, who will then be able to consider  it when reviewing a forensic patient's order and any applications for leave or release.

The opportunity for victims to make impact statements acknowledges the harm experienced by them and gives them a greater voice in the justice process. It will also bring greater consistency to how victims are treated across the justice system.

Strengthening victims' rights

The reforms make clear that the Charter of Victims Rights applies to victims under the Mental Health (Forensic Provisions) Act 1990.

Registered victims of forensic patients will also be given access to information regarding the Tribunal proceedings of the forensic patient.

Improving community safety

The Tribunal oversees the care of forensic patients and makes decisions regarding their management and treatment. The Tribunal may release forensic patients into the community on temporary leave or conditional or unconditional release where appropriate. The Tribunal will be able to impose monitoring as a condition of a forensic patient's leave or conditional release. GPS technology is currently being explored by the NSW Government as a monitoring option to better supervise forensic patients on leave or conditional release.

The new legislation will include a provision allowing the limiting term given to a forensic patient to be paused if they are unlawfully absent from a mental health facility or other place where they are detained. Currently a limiting term may expire while a forensic patient is unlawfully absent.

In addition, the Tribunal will be able to make an order to revoke the conditional release of a person who has been apprehended after breaching a condition of their release.

For more information about the role of the Mental Health Review Tribunal go to their website.

Improving the justice system

The new reforms will give the courts greater discretion to inform their decisions regarding a forensic patient.

The changes enable a court to obtain a report by an independent psychiatrist about a person found unfit to plead and not acquitted, or not guilty by reason of mental illness, before determining what orders to make or whether the release of the person is likely to seriously endanger the community. The reforms also allow a court to seek submissions from designated carers and principal care providers to inform their decision regarding the release of a person found unfit to stand trial and not acquitted, or not guilty by reason of mental illness.

Contact us

For general enquiries please contact policy@justice.nsw.gov.au.
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