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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.
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.
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.
These changes are intended to come into effect early 2021.
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:
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.
These reforms are expected to:
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:
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:
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.
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 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.
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.
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
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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