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Chapter 4 Section K: Mental illness and the criminal justice system

If you have a mental illness and have been arrested or charged in relation to a criminal offence, you may need to know about how the criminal justice system deals with mental illness.

When the criminal offence is a more serious criminal offence you will generally be dealt with in the higher courts: the District or Supreme Court. This section of the Manual describes how those higher courts can deal with mental illness in relation to crime. Less serious offences are dealt with by the Local Courts .

If you have a mental illness and the question of your fitness to stand trial has been raised, or you have been found ‘not guilty by reason of mental illness’ (NGMI), you may be referred to the Mental Health Review Tribunal. Depending on the Court’s determination, you may also become a ‘forensic patient‘ in NSW, click here.

For those who are not forensic patients, if you are on remand or serving a sentence in jail and have been transferred to a mental health facility, you will be considered to be a ‘correctional patient‘. For more about correctional patients, click here.

In this section you can find out about:

4K.1: Forensic patients

Forensic patients are people who fit into one of the following categories:

If you are a forensic patient on the basis that you are not guilty on the grounds of mental illness or you are unfit to be tried, then the Mental Health Review Tribunal has a role in reviewing your situation.

Forensic patients are kept in a prison or a hospital, but may also be released into the community, under supervision and subject to review by the Mental Health Review Tribunal. The Mental Health Review Tribunal also has the power terminate a person’s status as a forensic patient.

4K.2: Fitness to be tried

At any time after the police charge a person with a criminal offence, questions may be raised as to whether a person is ‘fit to be tried’ for committing that offence. This is not about the accused person’s physical fitness, but rather their mental or intellectual capacity and it will depend on their ability to understand what will happen in the court process, to communicate their version of what happened and to tell their legal representatives how they want to be represented. Fitness to be tried may be affected by a range of conditions including: mental illness, intellectual disability, brain damage or other serious cognitive impairment (such as dementia).

The question of whether or not you are fit to be tried is usually raised when you go before a magistrate in a Local Court in order to be charged with an offence, but it can be raised at any time either by the prosecution or by your lawyers, or by the court itself. If there is a question about whether or not you are fit to be tried, a special court proceeding will be held before a Judge. This inquiry is only for the  purpose of deciding if you are fit to be tried, and will not look into anything else.

The court will conduct this part of the criminal process as an inquiry rather than as an adversarial process. If the Judge decides you are fit to be tried, a normal criminal trial will then take place. If the Judge decides you are not fit to be tried, your may be able to be released from custody on bail and your case will be reviewed by the Mental Health Review Tribunal. For more about this, click here.

If you want to be released on bail, you should tell your solicitor before the court hearing so a proper application can be made.

4K.2.1: Unfit to be tried by the court

If it is decided that you are unfit to be tried, the Mental Health Review Tribunal will then consider if you are likely to get better and become ‘fit’ to stand trial in the next 12 months. The Tribunal must also decide whether you are suffering from a disorder or condition for which treatment is available in hospital, and whether you should be detained in a hospital.

The Tribunal will tell the court what it has decided, and the court will then decide whether you should go to hospital. Your views should be considered at this point in the process. If you think you are not mentally ill, or you object to detention, or if there is no treatment available for your condition, the court can make an order that you be detained somewhere other than a hospital.

If the Tribunal decides that you will not be fit to be tried within 12 months, you cannot be dealt with in an ordinary criminal trial. Instead, the court will hold a special hearing to decide on whether or not you are guilty. For more about special hearings, click here.

4K.2.2: Special hearings

The process of dealing with people who will not become fit to be tried within 12 months is called a ‘special hearing’ to reflect the fact that the evidence available to the court will be limited because the accused is not fit to be tried.

A special hearing is not recorded as a criminal trial, and one of four verdicts (decisions) can result from a special hearing:

Special hearings are usually held by a judge, sometimes with a jury.

If you have to face a special hearing before a court, a lawyer must represent you, unless you decide you don’t want this to happen. Later, if the Mental Health Review Tribunal has the task of reviewing the order made by the court, it can give permission for you to be represented by someone who is not a lawyer. Your lawyer will be able to give you advice about whether or not you should ask to have a jury involved in the special hearing.

For more about special hearings, click here.

4K.3: The verdicts from a special hearing

There are four possible verdicts (decisions) from a special hearing. There is information about these below.

4K.3.1: Not guilty

If you are found not guilty you will be acquitted (allowed to go free), just like in an ordinary criminal trial.

4K.3.2: Not guilty on the grounds of mental illness

If this is the verdict of the court as a result of the special hearing, you will be held as a forensic patient in a prison hospital or forensic facility, unless you are given conditional or unconditional release to live in the community on conditions or unconditionally.

4K.3.3: That an offence was committed

If the special hearing finds that you committed the offence or another offence, you be held as a forensic patient and the court will decide on a sentence (penalty), just as it would in an ordinary criminal trial. However, because you have been found unfit to stand trial, the outcome is called a ‘limiting term’. You will be referred to the Mental Health Review Tribunal, which will make a report to the court on:

If the Court would have given you a sentence had it been an ordinary criminal trial, then it will set an equivalent term ‘limiting term’. At this point the Court may make an order for your detention in a hospital or other place and you will be referred to the Mental Health Review Tribunal . The Tribunal will make a report to the court on:

  • whether you are suffering from a mentally illness; and/or
  • whether you should be detained in a hospital.

The court will consider these recommendations and make an order about whether or not you should have to serve the ‘limiting term’, and if so where and how. The Mental Health Review Tribunal will regularly review your case.

4K.3.4: Found ‘fit to be tried’ while serving a limiting term and release from a forensic order

If you later become fit to be tried, the Mental Health Review Tribunal notifies the Court and the NSW Director of Public Prosecutions.
If the Tribunal considers you are no longer a danger to yourself or to the community, it can release you from your forensic order. Before doing so, it is required to consider a range of factors including any further risk to the community, the views of any victims and the views of the Attorney General and the Minister for Health, if any.

At the end of a limiting term, you will no longer be a forensic patient and you will be released. However, if you are still a mentally ill person under the Mental Health Act 2007 (NSW), the Tribunal may make you an involuntary patient and deal with you in the same way as any other person who is mentally ill under that Act, only if the Ministers have advised the Mental Health Review Tribunal that they will not be seeking and extension of forensic status, or the Supreme Court has already dismissed the application for extension . This amendment was confirmed in September 2016.

Also amended in September 2016, is the right for the Ministers to appear at a review that will occur following a breach.

4K.3.5: Is there a criminal conviction recorded if a person is not fit to be tried?

Where a court and the Mental Health Review Tribunal have decided you are not fit to be tried, even if you are later found at a special hearing to have committed an offence, sometimes a criminal conviction will be recorded.

4K.4: Not guilty of a crime on the grounds of mental illness

A person may have committed a crime when they were affected by mental illness but by the time the criminal trial takes place, they may be no longer affected by the mental illness. This means the person is fit to be tried. However, that doesn’t mean that the episode of mental illness is irrelevant.

In this situation, the person’s lawyer may argue that the person should be found not guilty on the grounds of mental illness because their behaviour at the time the crime was committed was affected by mental illness. This could result in the court finding the person not guilty because of mental illness. If this happens, the person becomes a forensic patient.This could occur at a regular trial or at a special hearing conducted by the Court.

They will then be assessed by the Mental Health Review Tribunal as soon as possible to determine whether the person should be detained, and what, if any, care or treatment they require. If the Tribunal finds that the safety of the patient or any member of the public will not be seriously at risk the Tribunal may make an order for conditional or unconditional release.

4K.5: Representation in the courts

If you are facing a criminal trial and are either currently mentally unwell or were mentally unwell at the time of the alleged crime, you should get legal representation. You should contact Legal Aid NSW to get advice and apply to Legal Aid NSW for one of its lawyers to either represent you directly or make a grant of legal aid so you can have a private lawyer represent you. To find out more about legal aid, click here .

If you are Aboriginal or Torres Strait Islander, you should contact the Aboriginal Legal Service (NSW/ACT) to find out about legal representation. To find out about how to get in touch with the Aboriginal Legal Service, click here.

4K.6: Review of forensic patients by the Mental Health Review Tribunal

The Mental Health Review Tribunal can make decisions about detention, leave and release for forensic patients.

Mental Health Review Tribunal reviews of forensic patients are to take place every six months but this can be extended to 12 months. If you only want 12 months reviews, you should tell the Tribunal at a review.

When the Tribunal reviews your case, it can make orders about:

  • your continued care and detention;
  • your fitness to be tried, and
  • your release (either unconditionally or subject to conditions).

If release is ordered, it will usually be subject to conditions. If you are given conditional release, your case will continue to be reviewed by the Tribunal every six months.

You will only stop being a forensic patient when the Tribunal finally makes an order for unconditional release and for termination of your status as a forensic patient. (In practice, this requires a separate application and such an application will not normally be considered at the regular review by the Mental Health Review Tribunal).

The Tribunal cannot order your release unless it is satisfied that no one will be seriously endangered by your release. If you want to be released without any conditions, you should contact the Mental Health Advocacy Service so that a hearing of the Tribunal can be arranged to deal with this application. This issue can also be considered by the Tribunal at a regular review. However, if such an application is going to be made at a regular review, it is best to give the Tribunal notice, as this will affect how the Tribunal will be constituted and enable the Tribunal to consider the views of victms.

The Tribunal cannot order your release if you are on remand (being held in detention) waiting for a hearing about whether or not you are fit to be tried.

4K.6.1: Representation of forensic patients at Mental Health Review Tribunal reviews

Forensic patients have a right to be represented free of charge by the Mental Health Advocacy Service when they are being reviewed by the Mental Health Review Tribunal. As a forensic patient, you can choose instead to have a private lawyer represent you, but you will have to pay for them yourself.The Mental Health Review Tribunal also has the power to permit a person who is not a lawyer to represent you.

4K.7: Correctional patients

The term ‘correctional patient‘ refers to prisoners who have been transferred to a ‘declared’ hospital or unit for treatment for mental illness or mental condition.This does not include prisoners who have been made involuntary patients by the Mental Health Review Tribunal.

If you are a prisoner and develop a mental illness or mental condition while in prison or are diagnosed with a mental illness while serving a sentence or on remand, you can be ordered to be transferred to a hospital, but only if two medical practitioners (one of whom must be a psychiatrist) certify that you are mentally ill under the Mental Health Act 2007 (NSW) or are a person with a mental condition.

In either case, the Mental Health Review Tribunal must review your case as soon as practicable, and make an order about your continued detention, care or treatment.

4K.8: Leave for forensic patients and correctional patients

The Director-General of NSW Health may grant leave for forensic patients in emergencies or special circumstances, such as to attend a family funeral. The Director-General of Correctional Services may grant such leave for correctional patients. If you are a forensic or correctional patient and the Director-General has refused an application for leave, you can appeal against this decision to the Mental Health Review Tribunal.

The Mental Health Review Tribunal has the power to grant leave to forensic patients at a regular review or on separate application from a regular review. There are specific matters the Tribunal must consider before it grants leave and there are different types of leave that can be granted.

4K.9: Visits to Forensic Patients

If you are a forensic patient or a correctional patient in the prison system, including the prison hospital in Long Bay Correctional Centre, your visits are regulated like visits to other prisoners.

Click here for more information about visits to NSW prisons.

If you are a forensic patient in a hospital such as the Long Bay Forensic Hospital or Morisset Hospital, you can have visitors. However, the hospitals can restrict who visits you if they decide that a particular visitor is disruptive, a threat to security or their visits are having a negative affect on your recovery. This can mean an outright ban on that person visiting, or it might mean that there is supervision by hospital staff of any visits by that person.

To visit the Long Bay Forensic Hospital, you will need to prove your identity and there is a list of items you cannot take into the Hospital on a visit.

To find more information, click here.

Updated October 18, 2016