Special Bulletin 21 — March 2009
This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book
Mental Health Legislation Amendment (Forensic Provisions) Act 2008
The Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (the amending Act) commenced on 1 March 2009. An Announcements item on JIRS provides a detailed summary of the amendments.
The Mental Health (Criminal Procedure) Act 1990 has been renamed the Mental Health (Forensic Provisions) Act 1990. The amending Act does not alter the substantive law concerning unfitness and mental illness. “Forensic patients” are defined under s 42 as persons unfit to stand trial or found not guilty by reason of mental illness. The amending Act abolishes the system of determinations by the Minister for Health and Governor for the treatment, care, detention and release of forensic patients. The Forensic Division of the Mental Health Review Tribunal is now empowered to make orders for the treatment, care, detention and release of forensic patients. Previously the Tribunal could only make recommendations.
The amending Act inserts a new s 77A which creates various rights of appeal to the Supreme Court against Tribunal determinations for forensic patients, the Minister for Health and a victim of a forensic patient. A determination made by the Tribunal ordering the release of a forensic patient can be appealed to the Court of Appeal under s 77A by “a person”, the Minister of Health or the Attorney General (NSW).
The amending Act creates a new category of patients, known as “correctional patients”, being people who develop mental illness while on remand or serving a sentence. This includes accused persons who have been refused bail.
The amending Act also has various transitional provisions in respect of existing patients and persons detained in mental health facilities and existing recommendations as to release, care and treatment are set out in Sch 1 [19].
The Bench Book requires revision in light of the amending Act. Section 37 of what is now known as Mental Health (Forensic Provisions) Act 1990 provides that the court must explain to the jury the findings which may be made where an issue arises as to whether the accused is mentally ill. This includes explaining the legal and practical consequences of the possible findings. The suggested oral direction at [6-260] and suggested written direction at [6-270] in the section headed “Mental Illness — Including Insane Automatism” will be amended to reflect the new function of the Tribunal. The “Unfitness” section of the Bench Book will also be amended at [4-335] to reflect the fact that the Tribunal can now make orders for the detention of forensic patients.