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Forensic Mental Health Reforms 



Summary of forensic mental health reforms

The NSW Government is strengthening community safety and reducing delay for victims and for people with cognitive and mental health impairments who come into contact with the criminal justice system.

These reforms build on the changes that were made in late 2018 to increase and strengthen the rights and voices of victims of forensic patients.

What is forensic mental health

The NSW forensic mental health system can detain, supervise, treat and support people with a mental health impairment or cognitive impairment who are charged with serious offences in the District Court or Supreme Court of NSW, or who have had serious offences proven against them.

The law treats people with mental health impairments or cognitive impairments who commit serious crime differently. This is because the law states that a person is not generally criminally responsible for an act if that person did not have the ability to understand his or her own conduct at the time the crime was committed.

People with an impairment who are charged or convicted for serious offences may be detained as 'forensic patients' in a mental health facility or prison.

Key changes

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the new Act) has been passed by  Parliament to improve the forensic mental health system for victims and for people with mental health impairments and/or cognitive impairment This Act replaces the Mental Health (Forensic Provisions) Act 1990 (MHFPA). These changes will commence in early 2021.

Changes include:

  • modernising the language of the MHFPA—the new Act does not include language such as 'suffering' and 'disease of the mind' to describe mental illness, 
  • creating definitions for mental health impairment and cognitive impairment, giving courts a consistent standard to determine whether a person comes within the remit of the new Act,
  • creating a statutory test to determine whether a person is fit to stand trial in the District Court or Supreme Court of New South Wales,
  • changing the special verdict in the higher courts from 'not guilty by reason of mental illness' to 'act proven but not criminally responsible because of mental health impairment or cognitive impairment,
  • listing statutory factors for Magistrates to consider when deciding whether to divert defendants charged with less serious crimes in the Local Court. The list will include whether the defendant is likely to endanger the safety of any victim or the community.
  • altering existing processes within the forensic mental health system so that it is more efficient, transparent and clearer for all participants.

These changes are intended to come into effect early 2021.

Related information

Rationale

The new Act implements key recommendations made by the NSW Law Reform Commission in two landmark forensic mental health reports: Report 135 (Diversion) and Report 138 (Criminal responsibility and consequences).

These reforms are important, as the MHFPA relies heavily on the common law for a number of tests, which can make the legislation (and forensic mental health system) less accessible for people who are not legally trained. For example, the MHFPA does not include:

  • definitions for mental health impairment
  • a test to determine whether a person is fit to stand trial
  • a test for determining whether someone can successfully raise the defence of mental illness (to be called 'the defence of mental health impairment or cognitive impairment' in the new Act)
  • a list of factors for Magistrates to consider when deciding whether to divert someone into treatment or support for less serious offences, if that person has a mental health impairment or cognitive impairment.
  • a 12 month period by which Magistrates can call back a person diverted into treatment or support and deal with the person at law if they have not been compliant. Under the MHFPA, Magistrates only had six months to call back a person who had been diverted.

Using plain English to describe complex legal tests and processes and including these tests in the new Act will enhance understanding of the complex systems for all users, including victims, and allow for greater transparency of court decision making.

The reforms will also lead to greater efficiency by cutting out unnecessary and inefficient processes. One key change that will increase efficiency is that the new Act will improve the Court and Tribunal processes following a court's finding that a person is unfit to stand trial, leading to the resolution of matters earlier.  

These reforms are the outcome of extensive consultation with mental health experts, victim groups, legal stakeholders, disability advocates and government agencies.

Expected benefits

These reforms are expected to:

  • improve community safety
  • increase transparency and clarity of the forensic mental health system
  • make the forensic mental health system more accessible by using clear, plain and modern English

2018 Forensic Mental Health Reforms: Victim Focussed

In 2018, reforms to the forensic mental health system were passed to strengthen the rights and voices of victims of forensic patients.

Key changes from the 2018 reforms included:

  • Victims of forensic patients (persons found unfit to plead and not acquitted or not guilty by reason of mental illness (NGMI) – soon to be ‘act proven but not criminally responsible because of mental health impairment or cognitive impairment’) given 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 able to request that the Court consider withholding their victim impact statement from a defendant or forensic patient.
  • Victims able to make submissions to the Tribunal during hearings relating to a forensic patient's leave or release, and request that the Tribunal consider not disclosing the whole, or part of their submissions from a forensic patient.
  • The Charter of Victims Rights specifically acknowledging victims of forensic patients.
  • A new object to protect the safety of victims of forensic patients, and acknowledge the harm done to them, is included in the MHFPA (this will also be reflected in the new Act).
  • A Victims Register managed by Victims Services (previously known as the Mental Health Review Tribunal Victims Register or Forensic Patient Victims Register) which notifies 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 electronic monitoring to better supervise forensic patients on leave or conditional release.
  • The Tribunal able to revoke the conditional release of a forensic patient who has been apprehended after breaching a condition of their release. 
  • Courts 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 NGMI (soon to be ‘act proven but not criminally responsible because of mental health impairment or cognitive impairment’).
  • Forensic material, such as DNA, taken from people who are found unfit to stand trial and not acquitted or NGMI (soon to be ‘act proven but not criminally responsible because of mental health impairment or cognitive impairment’) will be retained in the same circumstances as if the person had been convicted of a crime.  

Rationale

These 2018 reforms 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 previous system treated victims of forensic patients differently to victims in normal criminal proceedings. For example, the previous system did not allow victims to make a victim impact statement (VIS) where the accused person is found NGMI (or 'act proven but not criminally responsible because of mental health impairment or cognitive impairment), 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 also allow victims of persons found NGMI (or 'act proven but not criminally responsible because of mental health impairment or cognitive impairment') 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 improved the system as it gave victims of forensic patients greater access to information about Tribunal processes involving forensic patients, and provided more avenues for victims to participate in Tribunal proceedings.

The 2018 reforms implemented 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 built 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.

Benefits of the 2018 victim focussed reforms

These reforms:

  • 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 the 2018 reforms work in practice

Victim impact statements

The reforms enabled victims to submit a Victim Impact Statement (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 NGMI verdict (soon to be ‘act proven but not criminally responsible because of mental health impairment or cognitive impairment). 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 then 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 2018 reforms also made clear that the Charter of Victims' Rights applies to victims under the MHFPA (soon to be the Mental Health and Cognitive Impairment Forensic Provisions Act 2020).

Registered victims of forensic patients were 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 can to impose electronic monitoring as a condition of a forensic patient's leave or conditional release.

The 2018 reforms included 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. Prior to these reforms, a limiting term could expire while a forensic patient was unlawfully absent.

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

More information about the role of the Mental Health Review Tribunal is available on their website

Improving the justice system

The 2018 reforms also gave courts greater discretion to inform their decisions regarding a forensic patient.

The changes enabled a court to obtain a report by an independent psychiatrist about a person found unfit to plead and not acquitted, or found NGMI (soon to be ‘act proven but not criminally responsible because of mental health or cognitive impairment’), before determining what orders to make or whether the release of the person is likely to seriously endanger the community. The reforms also allowed 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 found NGMI (‘act proven but not criminally responsible because of mental health or cognitive impairment’).

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