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Mental Health Court

The Mental Health Court (MHC) decides amongst other things, the state of mind of the person/s charged with criminal offences. If there is reasonable cause to believe that an alleged offender is or was mentally ill or has an intellectual disability of a degree that the person’s mental condition should be considered by the Mental Health Court then a criminal case may be referred to that court.

A case would be referred to the MHC to have the following questions answered:

  • Was the alleged offender of unsound mind at the time of the offence?
  • Is the alleged offender unfit for trial?
  • Is the unfitness for trial permanent?
  • If the charge is murder, was the alleged offender suffering from diminished responsibility at the time of the offence?

Because the MHC is not bound by the rules of evidence it is able to accept material that may otherwise be inadmissible in general court proceedings. To this effect, victims of homicide can make what is called a non-party statement for the MHC.

Unfit For Trial

This means that the person is unable to understand the nature of the trial proceedings, to understand the meaning of entering a plea of guilty or not guilty; or is incapable of instructing their legal representatives. It may also mean that a person is considered unable to endure their trial without serious deterioration of their mental state. A person may be temporarily or permanently unfit for trial.

If a person is found of unsound mind or permanently unfit for trial, the proceedings are discontinued. The court may also make a forensic order for that person. If the person is found only temporarily unfit for trial, then the proceedings will simply be suspended and regular reviews of the person’s fitness for trial are conducted by the Mental Health Review Tribunal.

Diminished Responsibility

If the charge is murder, the MHC may find that even though a person was not of unsound mind they didn’t have substantially impaired capacity to:

  • Understand what they were doing
  • Control their action
  • Know that they should not do the act or make the omission

The Criminal Code says where there is a finding of diminished responsibility a murder charge is replaced with a charge of manslaughter. This is because a person whose capacities are substantially impaired bares less criminal responsibility for their actions.

What happens if the Mental Health Court decides the person was of unsound mind or is permanently unfit for trial?

In these circumstances the court may make a forensic order. This gives authority for the person to be detained in an authorised mental health service for involuntary treatment or care. There is a separate fact sheet on forensic orders and how they are reviewed.

In deciding whether to make a forensic order the court must consider:

  • The seriousness of the offence
  • The person’s treatment needed
  • The protection of the community

If the court decides not to make a forensic order it can make a Non-Contact Order. (as below)

Non-Contact Order

This means a person must not have contact with a stated person. The MHC can only make a non-contact order when it decides not to make a forensic order and where the person was charged with an offence of violence.

Breaches of non-contact orders should be reported to the police for investigation and where appropriate, prosecution. If a person intentionally breaches a non-contact order, a Magistrate’s Court can impose a penalty or vary the order.

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