The NSW Government is changing the way criminal cases involving people with cognitive and mental health impairments are managed to better support victims, improve community safety and reduce delays.
The current legislation contains complex procedures that delay case outcomes and out-dated legal terminology that can be confusing and upsetting, particularly for victims.
The new legislation will have a greater focus on victims’ rights and community safety while maintaining the fair treatment of people with cognitive and mental health impairments in the justice system.
This reform builds 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 2017 Review of the Mental Health Review Tribunal in relation to forensic patients report. These reports involved extensive consultation with victims, health and disability agencies and the legal profession.
This reform is expected to:
Under the reform, new legal definitions of cognitive and mental health impairment will be introduced.
The ongoing impairment in comprehension, reason, adaptive functioning, judgment, learning or memory that affects the functioning of the person in daily life to a material extent, and that is the result of any damage to, dysfunction, developmental delay, or deterioration of the brain or mind.
Mental health impairment
A temporary or continuing disturbance of thought, mood, volition, perception, or memory that impairs emotional wellbeing, judgment or behaviour, so as to affect functioning in daily life to a material extent.
Cognitive impairment may arise from conditions such as intellectual disability, dementia and acquired brain injury. Impaired brain functioning often impacts upon the ability of a person to think, concentrate, learn new things, react to emotions, reason and remember. It can sometimes impact how a person understands and communicates.
Mental health impairment may arise from mental illness such as psychoses.
If the matter is about low level offending and a defendant is being dealt with by the Local Court, they may be diverted if appropriate for assessment, treatment or support services.
If the matter is about higher level offending and is being dealt with in the District or Supreme Court, a defendant may be found unfit to stand trial, or receive a verdict of ‘act proven but not criminally responsible by reason of cognitive or mental health impairment’. The impairment must be very serious to meet the criteria for these outcomes. If the defendant is found unfit and detained, or not criminally responsible, they become a forensic patient and are managed by the Mental Health Review Tribunal.
*The potential outcomes will depend on the
circumstances and seriousness of the case and the person’s cognitive and mental health impairment.
A person is classified as a forensic patient if:
No. The number of people found unfit or not criminally responsible and classified as forensic patients, represent only a very small proportion of people with cognitive and/or mental health impairments. Between July 2016 and June 2017, in NSW a total of 30 people were classified as forensic patients as a final outcome of criminal proceedings and transferred to the Tribunal for management and treatment. Forensic patients experience extreme forms of cognitive and mental health impairment and require intensive treatment, support and supervision.
As at 22 May 2018, there were 249 forensic patients detained in NSW including 45 people detained in a correctional facility (source: Mental Health Review Tribunal). This is a very small number of people when compared to approximately 11 916 people in Corrective Services custody (average daily prison population 30 June 2017, source: Report on Government Services 2018).
A new specialist victims support service will be established to deliver crisis support, case management, counselling and advocacy to victims, from early in the justice process. The service will operate a Specialist Victims Register (currently known as the Mental Health Review Tribunal Victims Register or Forensic Patient Victims Register) to ensure registered victims receive appropriate information and support.
Under the reform, victims will have the right to make victim impact statements to the court, in the following cases:
The opportunity for victims to make impact statements acknowledges the harm experienced by victims and gives them a greater voice in the justice process. It will also bring greater consistency to how victims of crime are treated across the justice system.
Legal terms will be updated to reflect modern understanding and recognition of cognitive and mental health impairments and to reduce confusion for victims, defendants and the wider community.
In particular, the current verdict ‘not guilty by reason of mental illness’, will be changed as it may give the impression that the court has found the person did not commit the relevant act or omission, causing unnecessary suffering for victims. The new term ‘act proven but not criminally responsible by reason of cognitive or mental health impairment’ will acknowledge that the person carried out the act but isn’t criminally responsible because of their cognitive and/or mental health impairment.
Under the reform, the test for determining the fitness of a person to stand trial will be set out in legislation. This approach aligns with other Australian States and Territories to improve transparency and support judicial decision making.
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 release where appropriate. GPS technology will be explored for use by treating teams and the Tribunal, to better supervise forensic patients on leave or conditional release
For more information about the role of the Mental Health Review Tribunal go to their
Diversion is the process through which the Local Court and Children’s Court refer people with cognitive and mental health impairments charged with low level offending, away from the criminal justice system and into the health and disability sectors. Assessment and appropriate treatment and support by the health and disability sector, is recognised as a better way to address the factors underlining the offending behaviour, and reduce future risk of reoffending.
Under the reform, there will be greater clarity on the options available to magistrates.
In cases where a defendant charged with low level offending is ordered to undertake a diversion (or treatment) plan in the community, magistrates will be able to oversee compliance. This will ensure action can be taken if the defendant does not follow the conditions of their order.
Cognitive Impairment Diversion Program is also currently being trialled to improve access to health and disability services for people with cognitive impairments by linking them to the
National Disability Insurance Scheme (NDIS).
Criminal cases involving a defendant with cognitive and/or mental health impairment can be complicated and may require transfer of authority between the Courts and the Tribunal a number of times as the defendant is assessed and treated.
To achieve swifter outcomes to criminal cases, the roles and responsibilities of the court and the Tribunal will be clearer, reducing unnecessary transfers which lead to delays. For example, the new legislation will set out that the court makes decisions about whether a person is fit to stand trial and whether they committed the offences, and the Tribunal determines the person’s placement, supervision and treatment.
Swifter court outcomes will reduce stress on victims and enable forensic patients to access treatment options and participate in programs earlier.