Procedure for fitness to be tried and mental illness cases

[4-325] Introduction

The Mental Health (Forensic Provisions) Act 1990 (“the MHFP Act”) prescribes procedures for the Supreme Court and District Court in criminal proceedings involving persons affected by mental illness and other mental conditions. There are two relevant parts of the MHFP Act. Part 2 deals with fitness to plead and Pt 4 with verdicts of not guilty on the ground of mental illness.

The following text informs judicial officers and practitioners as to how and when information and/or recommendations may be sought from Justice Health and the Forensic Mental Health Network (FMHN), and/or the Mental Health Review Tribunal (MHRT). This publication was produced by a Committee convened by the DPP (NSW). The Committee had representatives from the Office of the DPP (NSW), Justice Health, the Department of Attorney General and Justice, the Forensic Mental Health Network, the Mental Health Review Tribunal, and the Judicial Commission of NSW. The publication does not deal with every procedural detail of Pts 2 and 4 MHFP Act. Terms in italics are explained in the glossary/definitions section after the procedure Table at [4-332].

When Pts 2 and 4 apply, at various points during proceedings the court will need to make decisions about the interim or long-term placement of the person facing criminal charges before the court. A court may seek assistance in such decisions from the FMHN and the MHRT.

The FMHN is part of NSW Health and provides:

  • direct mental health care to those in correctional centres and the high security Forensic Hospital, and

  • oversees the care provided by Local Health Districts to forensic patients in hospital and community settings.

FMHN does not assess and manage accused persons suffering from a cognitive impairment. The court should seek advice from the accused’s legal practitioner.

The MHRT has prescribed statutory functions under Pts 2 and 4 MHFP Act. At certain points in criminal proceedings it may provide a court with information and recommendations as to the placement, care and treatment of a person.

When a court is considering disposition decisions, the FMHN or the MHRT may be able to assist the court with recommendations concerning the appropriate care and treatment of the person.

[4-327] Procedure under Part 2

Part 2 MHFP Act is headed “Criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders”. It applies to criminal proceedings in the Supreme and District Courts: s 4. The question of a person’s unfitness to be tried for an offence may be raised by any party to the proceedings or by the Court: s 5. The question is to be raised before the person is arraigned so far as that course is practicable: s 7. It may also be raised at any time during the course of the hearing of the proceedings and on more than one occasion: s 7. The question of a person’s unfitness to be tried for an offence is to be determined by the judge alone: s 11.

Once it is raised, the pathways in the proceedings, and the points during proceedings at which FMHN assistance and information is available, are set out in the Table at [4-332].

The sequential procedures under Pt 2 are detailed below at [4-332].

[4-330] Procedure under Part 4

Part 4 MHFP Act is headed “Defence of mental illness”. It applies to cases when during the trial the question is raised as to whether the person was, at the time of commission of the offence, mentally ill. It may be engaged by two routes:

1. 

After a “special hearing” in the course of unfitness proceedings under Pt 2 the judge or jury returns a special verdict of not guilty by reason of mental illness (NGMI): ss 21B, 22(1)(b).

(A special hearing is held under Pt 2 after the court finds the person unfit to be tried, the MHRT determines a person will not become fit within 12 months and the DPP determines to proceed. A special hearing is to be determined by judge alone unless an election for a jury is made by the accused, a legal practitioner representing the accused, or the prosecutor: s 21A.)

2. 

A special verdict of NGMI is returned at the trial of a person pursuant to s 38 MHFP Act, the jury having found that the person was mentally ill at the time the person committed the offence. See order under s 38(2).

FMHN assistance and information is available upon a special verdict of NGMI irrespective of how the verdict was reached.

The procedures under Pt 4 are set out in step 7 in the Table at [4-332].

[4-332] Part 2 MHFP Act procedure

Step

 

Section

1

Upon fitness first being raised the Court may dismiss the charge:

If … the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person’s disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.

10(4)

Or, the Court may make orders concerning the person before holding an inquiry into the fitness of the person. Orders under s 10(3) include to:

10, 11, 12

  • adjourn proceedings

  • grant bail

  • remand in custody (not exceeding 28 days)

  • request the accused to undergo a psychiatric or other examination

  • request a psychiatric or other report relating to the accused person be obtained (not from the FMHN)

  • discharge a jury

  • any other order that the Court considers appropriate.

Under s 10(3) where the accused is remanded in custody or bail granted (but not met) the standard remand warrant is issued. Where the accused is granted bail and bail is to be entered at Court, standard bail forms are used.

See order where bail is granted or where order is to remand the accused.

10(3)

2

If the Court, after an inquiry, finds the person unfit to be tried, the Court refers the person to the MHRT under s 14(a) to determine if the person is likely to become fit within 12 months (see step 4), and makes orders concerning the person. These orders under s 14(b) include to:

14, 16

  • adjourn proceedings

  • grant bail (see procedural step 3)

  • remand in custody (until the Tribunal determination has been given effect to)

  • discharge a jury

  • any other order that the Court considers appropriate.

See order where bail is granted or where order is to remand the accused.

14(b)

3

If bail is granted, FMHN will, if requested, assess a person for suitability for care by community mental health services while on bail, when the Court finds the person is:

(a) 

Unfit to be tried; and

(b) 

Suffers from a mental illness (not only from an intellectual disability).

 

To arrange an assessment and report by FMHN and, where appropriate, care and/or treatment whilst on bail, it is suggested that the Court:

1. 

Include a bail condition that the person is to attend FMHN for assessment if directed to do so by the Statewide Clinical Director Forensic Mental Health of FMHN.

2. 

Adjourn the proceedings with liberty to relist the matter upon provision of a report by FMHN.

3. 

Contact the office of the Statewide Clinical Director Forensic Mental Health (FMHN phone: 02 9700 3027) to arrange assessment.

4. 

Provide any psychiatric or psychological reports filed in the proceedings.

 
 

Within eight weeks FMHN will provide a report to the Court, the DPP and the person’s legal representative indicating the outcome of the assessment, which:

(a) 

If the person is suitable for community care, makes a referral of the person to a community mental health service; or

(b) 

If the person is not suitable for community care, makes recommendations for treatment other than in a community setting.

Upon receipt of the report the Court, DPP or person’s legal representative may relist the matter and the Court may amend bail conditions or make other orders as appropriate.

 

4

If the MHRT determines the person will become fit within 12 months, then the MHRT determines whether the person is suffering a:

(a) 

mental illness; or

(b) 

mental condition with treatment available in a mental health facility (MHF) and whether the person objects to being detained in a MHF;

16(2)

The MHRT notifies the Court and may make recommendations for care or treatment. The Court then makes orders and may take into account any recommendations by the MHRT:

16(3), (3A)

 
1. 

Grant bail for 12 months

2. 

If the MHRT found mental illness, or a mental condition with treatment available in a MHF and the person does not object to being detained in a MHF:

Order that the person be taken to and detained in a mental health facility for 12 months.

3. 

If the MHRT found no mental illness, or a mental condition but with no treatment in a MHF available or the person objects to being detained in a MHF:

Order that the person be detained in a place other than a mental health facility for 12 months.

See order under s 17(3)(a) and order under s 17(3)(b).

17(2), (3)

5

If the MHRT determines the person will not become fit within 12 months, then the MHRT notifies the Court and the DPP:

(a) 

If the DPP does not proceed with the prosecution, the person is released.

(b) 

If the DPP proceeds with the prosecution, the Court is to hold a special hearing — see step 6.

16(1), (3), (4)
 

19(1), 20

5A

The MHRT will continue to review a forensic patient who is unfit and detained until the special hearing has been conducted. If the MHRT is of the opinion that a forensic patient has become fit to be tried, the MHRT will notify the Court and the DPP.

(a) 

If the DPP does not proceed with the prosecution, the person is released (s 29(3)).

(b) 

If the DPP proceeds with the prosecution, the Court is to hold a further inquiry as to the forensic patient’s fitness as soon as practicable (ss 11, 12, 29(1)(b) and (4)).

(c) 

If the Court finds that the person is now fit to be tried, the person stops being a forensic patient and the matter continues as ordinary criminal proceedings (ss 52(3), 30(1)).

(d) 

If the Court finds that the person remains unfit to be tried,

(i) 

the Court must hold a special hearing if the person has been detained for more than 12 months (s 30(2)(a))

(ii) 

the Court may hold a special hearing if the person has been detained for less than 12 months, or return the person to custody or grant bail (s 30(2)(b)).

See order under s 30(2)(b).

6

The Court holds a special hearing with three possible verdicts:

22(1)

1. 

Not guilty

(a) 

Person ceases to be a forensic patient

(b) 

No disposition decision.

2. 

Special verdict of NGMI

(a) 

See step 7.

3. 

A qualified finding of guilt based on limited evidence

(a) 

See step 8.

22(1)(a), 26

  •  

  •  

22(1)(b)

7

The judge or jury return a special verdict of NGMI. The Court makes orders as prescribed by s 39 including:

1. 

Detention in place and manner as Court thinks fit until released by due process of law; or

2. 

Such other order as Court considers appropriate (but the person is not to be released unless the Court is satisfied that the safety of person or the public will not be seriously endangered by the person’s release).

22(1)(b)
 

25
 

38, 39

The Court may be assisted by the FMHN with recommendations as to an appropriate placement. Upon a finding of NGMI the FMHN, if requested, will provide a disposition report to the Court. The procedure to obtain this information is similar to obtaining a pre-sentence report and is as follows:

1. 

Adjourn the proceedings (the FMHN requires at least 8 weeks to conduct an assessment and prepare a report).

2. 

The Court may direct that during the adjournment:

(a) 

Detention at the Long Bay Hospital (not Long Bay Forensic Hospital) unless an alternative appropriate interim placement is identified by the person’s legal representative

(b) 

The office of the Statewide Clinical Director Forensic Mental Health (FMHN phone: 02 9700 3027) arrange for FMHN to provide a disposition report to the Court before the next Court date. The report will address:

(i) 

If the Court is considering releasing the person:

Recommended conditions as to care and/or treatment in the community.

(ii) 

If the Court is considering detaining the person:

Recommended placement in a prison or mental health facility.

(The Court later considers the recommendations of the FMHN report).

See order for release under s 39 and order for detention.

8

If the Court finds that on the limited evidence before it, the person committed the offence charged or an alternative offence (a qualified finding of guilt) then:

1. 

If the Court would not have imposed imprisonment, the Court may impose a penalty or make any other order it might have made on conviction of the person in a normal trial of criminal proceedings.

(Note: the offender will not be a forensic patient unless the Court otherwise orders. Consequently there is no State supervision.)

2. 

If the Court would have imposed a sentence of imprisonment, it must:

(a) 

Nominate a limiting term,

(b) 

Refer the person to the MHRT; and

(c) 

Make an interim order with respect to custody.

See order under s 24.

22(1)(c), (d), (3)

 

23, 23(2)

 

 

 

 

24(1)

 

When the person is referred to the MHRT, the MHRT determines whether the person is suffering a:

1. 

mental illness; or

2. 

mental condition with treatment available in a mental health facility and whether the person objects to being detained in a MHF.

24(2), (3)

 

The MHRT then notifies the Court of its determination and reasons. Depending on the MHRT determination, the Court makes an order:

1. 

If the MHRT found mental illness, or a mental condition with treatment available in a MHF and the person does not object to being detained in a MHF:

Order that the person be taken to and detained in a mental health facility.

The FMHN can provide a disposition report to the Court to assist with making such an order by the following procedure:

(a) 

The Court contacts the office of the Statewide Clinical Director Forensic Mental Health (FMHN phone: 02 9700 3027) to request information as to the most appropriate placement

(b) 

Within 4 weeks of receiving the MHRT’s reasons, the FMHN will write to the Court, the DPP and person’s legal representative advising of appropriate placement.

2. 

If the MHRT found no mental illness, or a mental condition but with no treatment in a MHF available or the person objects to being detained in a MHF:

Order that the person be detained in a place other than a mental health facility.

The use of the word “may” in s 27 does not confer a discretion on a Court to decline to make an order and release a person who is subject to a limiting term. The power to release resides with the MHRT: Director of Public Prosecutions v Khoury [2014] NSWCA 15 at [37], [58]; R v McKellar (No 6) [2014] NSWSC 1169.

See order under s 27(a) and order under s 27(b).

27(a), (b)

9

The MHRT will continue to review a forensic patient who has been found unfit and ordered to be detained, following a special hearing. If the MHRT is of the opinion that a forensic patient has become fit to be tried, the MHRT will notify the Court and the DPP. Follow step 5A.

Glossary/abbreviations

Community mental health service: generally means a Local Health District. Local Health Districts are constituted under s 17 Health Services Act 1997. They provide a range of health services for residents of their area including mental health services. Eight Local Health Districts cover the Sydney metropolitan region, and seven cover rural and regional NSW.

Disposition decision: an interim or final order in accordance with the powers conferred by the MHFP Act determining where a person will be placed.

The disposition decisions to be made in proceedings to which Pt 2 MHFP Act apply.

Disposition report: a report prepared, in the context of MHFP Act proceedings, by the FMHN at the request of a Court to assist in determining a disposition decision. The types of matters that will be covered by a disposition report include, for example:

1. 

In the case of a person on bail or to be released into the community, suggestions as to appropriate conditions taking into account the terms of s 39(2) MHFP Act.

2. 

In the case of a person detained in a MHF, advice on:

(a) 

Placement options that are appropriate for the person given their mental illness/condition and current clinical presentation; including:

(i) 

Community release if appropriate in respect of the circumstances and permissible under the Act

(ii) 

Interim placement options

(iii) 

Long-term placement options (which may include Long Bay Hospital, Forensic Hospital, or another mental health facility)

(b) 

Timeliness of placement options and interim placement options.

FMHN: Forensic Mental Health Network. Part of the Justice and Forensic Mental Health Network, a statutory health corporation constituted under the Health Services Act 2011: Sch 2. The FMHN is the principal service provider and coordinating agency for forensic mental health services in NSW.

Forensic Hospital: a “high secure” forensic mental health facility located at 1300 Anzac Parade, Matraville, administered by NSW Health (Justice Health).

Forensic patient: a person who is detained in a MHF, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under:

1. 

ss 14, 17(3), 24, 25, 27 or 39 MHFP Act, or

2. 

s 7(4) Criminal Appeal Act 1912 (including that subsection as applied by s 5AA(5) of that Act).

A forensic patient can be made the subject of an extension order as provided for by Sch 1 MHFP Act. Section 76AA of that Act provides that, at least 6 months before the expiry of a limiting term or extension order to which a forensic patient is subject, the Tribunal must inform the Ministers responsible for the principal Act of the date on which the limiting term (or if applicable extension order) is due to expire. Schedule 1 sets out the process by which the Supreme Court can (on application of the relevant Minister) make an order for the extension of a person’s status as a forensic patient.

Inquiry: an inquiry under s 10 MHFP Act conducted by judge alone in order to determine whether a person is unfit to be tried for an offence.

Long Bay Hospital: A hospital within Corrections. Maximum security hospital jointly administered by Corrective Services and the NSW Department of Health (Justice Health) with three wards allocated for long-term and short-term forensic patients. Located at 1300 Anzac Parade, Matraville.

Mental condition: a condition of disability of mind not including either mental illness or developmental disability of mind: s 3(1) MHFP Act.

Mental health facility: a declared mental health facility or a private mental health facility — see s 4(1) Mental Health Act 2007.

Mental illness: a condition that seriously impairs (temporarily or permanently) the mental functioning of a person and is characterised by one or more of: delusions; hallucinations; serious disorder of thought form; a severe disturbance of mood; and/or sustained or repeated irrational behaviour indicating the presence of any one or more of those symptoms: see s 4(1) Mental Health Act 2007.

MHF: mental health facility.

MHFP Act: Mental Health (Forensic Provisions) Act 1990.

MHRT: Mental Health Review Tribunal.

NGMI: not guilty by reason of mental illness.

Special hearing: in a special hearing, the person is taken to have pleaded not guilty. The purpose is to ensure acquittal unless an offence is proved to the criminal standard: ss 19(2), 21(2) MHFP Act.

Additional references

For a flow diagram of the procedures under the MHFP Act from the first point where unfitness is raised, see NSWLRC Report 138 at p 131.

For a flow diagram of the procedures following a special hearing where the court finds that, on the limited evidence available, the accused person committed the offence or an alternative charge, see NSWLRC Report 138 at p 157.

For a flow diagram of the procedures following a finding of the Court that the defendant is not guilty by reason of mental illness (NGMI), see NSWLRC Report 138 at p 160.