Local Court Bench Book — Mental health

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which replaced the Mental Health (Forensic Provisions) Act 1990 (the 1990 Act), provides a mechanism for magistrates to deal with persons with mental health impairments or cognitive impairments otherwise than in accordance with law. All references to provisions in this chapter are to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) unless otherwise stated.

Cases decided before the Act commenced, addressing those aspects of the 1990 Act which were unchanged, remain useful. The references in those cases to the old provisions have been updated to reflect the current legislation.

A table of the sections in the 1990 Act corresponding to those in the Act follows.

Note:

Although many of the provisions in the 2020 Act are largely in the same terms, or to the same effect, as the corresponding provisions in the 1990 Act, those provisions marked with a * are either new or different in some material way.

Part 2 of the Act relating to summary proceedings applies to criminal proceedings commencing from 27 March 2021. Part 3 of the 1990 Act continues to apply to criminal proceedings which commenced before that date: s 8, Sch 2.

The provisions only apply to summary offences, or to indictable offences triable summarily: s 8(1). The provisions do not apply to committal proceedings: s 8(2).

Reasons must be given for any decision to make, or refuse to make, any order pursuant to Pt 2 of the Act: s 11. It is not mandatory to disqualify oneself from hearing a matter if a s 12 application is refused, but care must be exercised.

At those courts where the service is available, the clinical nurse consultant will provide a report to assist the court’s determination of the matter. Frequently, if there is not a diagnosis of mental illness, the nurse may identify a cognitive impairment/intellectual disability.

Section 15 outlines the factors a magistrate may consider in determining a s 12 application (see below at [30-060]). The overview of the exercise of the court’s discretion discussed in DPP v El Mawas (2006) 66 NSWLR 93, which concerned an application pursuant to s 32 of the 1990 Act, remains useful.

Section 12 allows a magistrate to deal with a person under Div 2 if:

However, s 12(3) provides that Div 2 does not apply if the defendant is a mentally ill person or a mentally disordered person. In such cases, s 18 (in Div 3) provides a mechanism for dealing with those defendants. A mentally ill person or a mentally disordered person is defined in the Mental Health Act 2007.

See also Person suffering from a mental illness, Commonwealth Offences chapter at [18-140].

The question of the use of these provisions in dealing with a defendant is a discretionary one for the magistrate: see Quinn v DPP [2015] NSWCA 331 at [5]. In coming to a conclusion, the magistrate may inform themselves in any way they think fit, but a defendant is not required to incriminate themselves: s 10. The powers in s 10 must be exercised in accordance with the requirements of procedural fairness: DPP v El Mawas (2006) 66 NSWLR 93 at [74].

Section 15 lists the matters a magistrate may consider when deciding the appropriateness of dealing with a defendant in accordance with Div 2:

These factors, which inform the discretion of the magistrate, pull in different directions depending on the circumstances. The inclusion of “other relevant factors” in s 15(i) ensures a broad discretion. Further, Spigelman CJ in DPP v El Mawas at [4] noted it “can be accurately described as conferring a ‘very wide discretion’” (also see Quinn v DPP [2015] NSWCA 331 per Basten JA at [5]).

The rules of evidence do not apply: Jones v Booth [2019] NSWSC 1066 at [53].

A magistrate should have an outline of the facts, and to this end a copy of the alleged facts and record may be handed up.

If the application is made by the defendant they should be asked to tender the documents that they rely upon for the making of an application under the section. Usually these will be medical or psychiatric/psychological reports. It is, of course, open to the prosecution to seek to have the authors of such reports made available for cross-examination. Directions should be made requiring the service upon the prosecution of any medical evidence relied upon in the proceedings. It may be necessary to adjourn the proceedings to allow for this to happen: s 13.

The content of a psychologist’s report may be considered when determining an application. It is wrong to proceed on the basis that only psychiatric reports may be received. The type of report which may be appropriate depends on the particular case: Jones v Booth at [57], [59].

Section 12(2) requires the magistrate to have regard to the matters placed before the court, and to consider if it would be more appropriate to deal with the defendant in accordance with the provisions of Div 2 than otherwise in accordance with law. R v HW [2017] NSWLC 25 at [69] states:

The Act requires the inquiry to be a three-stage process:

Section 13(a) permits adjourning the proceedings to enable:

Section 13(b) permits making other interim orders the magistrate considers appropriate.

Section 14(1) provides that the magistrate may dismiss the charge and discharge the defendant:

A magistrate must give reasons for making a decision: s 11; Jones v Booth at [56].

In many cases it will be appropriate for a magistrate to:

Such findings can be expressed as sentences, rather than paragraphs or pages: DPP v Soliman [2013] NSWSC 346 at [61].

The magistrate would normally sign a formal order which might be in the following terms:

If the charge is dismissed, this does not constitute a finding that the charges are proven or otherwise: s 14(2). Where charges are dismissed subject to conditions, there is sanction if any of the conditions imposed are not complied with.

Section 18 provides a mechanism for dealing with a defendant where “it appears to the Magistrate that the defendant is a mentally ill person or a mentally disordered person” within the meaning of the Mental Health Act 2007: see definitions of “mental illness” and “mentally disordered person” at [30-040]. Under the 1990 Act, the power did not extend to “mentally disordered” persons. The word “appears” in s 18(1) is to be determined by the subjective state of mind of the magistrate: State of NSW v Talovic (2014) 87 NSWLR 512 at [133]–[135] — see interpretation of similar wording used in s 22 Mental Health Act 2007.

Section 19 provides that the magistrate may:

An order under s 19(c) could be made if the defendant is subject to a current community treatment order. Care should be taken when making an order under this provision: see further discussion at [30-200].

The magistrate must state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under s 19: s 11.

Orders under s 19 must be made with the defendant present and not in chambers in the absence of the parties: DPP v Wallman at [30]–[31].

Section 21(1) provides an authorised justice (which has the same meaning as in the Bail Act 2013 and includes registrars) in the hearing of proceedings under the Bail Act may make orders in identical terms to those in (a) and (b), above, if it appears to the authorised justice that the defendant is a mentally ill person or a mentally disordered person. The authorised justice must state the reasons for making a decision as to whether or not a defendant should be dealt with under s 21(1): s 21(2). See further discussion concerning bail below at [30-180].

If an order has already been made by an authorised officer under s 21(1) in bail proceedings, it is an error for a magistrate to make another order either under s 19(a) or (b): DPP v Wallman [2017] NSWSC 40 at [33].

“Mental health facility” in the Act (including in ss 19 and 21) has the same meaning as it has in s 4 of the Mental Health Act: s 3(2). The expression is defined as “a declared mental health facility or a private mental health facility”.

An order by a magistrate or authorised justice may provide that a defendant be “taken to or from a place”, in the case of a defendant under 18 years of age, by a juvenile justice officer, or in the case of any defendant, by a person of a kind prescribed by the regulations: s 22.

Clause 29 Mental Health and Cognitive Impairment Forensic Provision Regulation 2021 prescribes the persons who may “take a defendant to or from a place” for the purposes of s 22(1)(b). Specific people are prescribed where the defendant is on remand or serving a sentence of imprisonment. “Otherwise”, a prescribed person includes a member of the NSW Health Service, a police officer, a correctional officer, a juvenile justice officer or a person who provides a transport service approved for that purpose by the Secretary.

It is essential that copies of the court attendance notices, police facts and any other material relied on in the proceedings such as medical reports that may assist the medical authorities at the mental health facility, accompany the defendant to the mental health facility.

It is usual for the magistrate to sign formal orders which might be in the following terms:

Whether making an order under s 19(a) or (b), the person is to be taken to, and detained in a mental health facility for assessment. In either case, there is no certainty as to the outcome of the assessment: see DPP v Wallman at [37]–[39].

An order under s 19(a) or (b) (in appropriate cases) will effectively become a final diversionary order where the police indicate to the authorised medical officer under s 32(4) Mental Health Act that they will not apprehend the defendant: see discussion at [30-140]. In considering the 1990 Act, the NSWLRC report stated that the previous s 33(1)(a) could be used in this way for minor offences where the court takes the view that the best course is to have the defendant deal with their mental health issues: NSWLRC, People with cognitive and mental health impairments in the criminal justice system – Diversion, Report No 135, 2012 at [10.21]–[10.25] referred to in State of NSW v Roberson (2016) 338 ALR 166 at [45]. Section 23(1) provides that the charges are taken to be dismissed 6 months from the date of the s 19 order.

In other cases such as indictable offences dealt with summarily or repeat offenders, an order under s 19(a) or (b) (in appropriate cases) may not be a final order because the police choose to apprehend the detained person under s 32(4) Mental Health Act and take them to court and have the charges relisted: DPP v Wallman at [39]. See further explanation at [30-140].

If an order is made under s 19(b), the outcome of the assessment will determine whether the proceedings continue at a later date. If, after an assessment, the defendant is found to be neither a mentally ill person nor a mentally disordered person, the police are required by the s 19(b) order to apprehend the defendant under s 32(5) Mental Health Act and to take the defendant back to court. Notwithstanding the terms of s 19(b), s 18(2) provides the selection of an order under s 19(a), (b) or (c), does not affect any other order the magistrate may make and the court may make any other order(s) as required by the case. The original court papers can be relisted for the defendant to be dealt with further.

Where a s 19 order has been made it is important to understand the interplay and direct connection between the Mental Health Act 2007 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (referred to in this section as the 2020 Act), including the critical role that the police play in determining the course of the proceedings.

Chapter 3 Pt 2 Div 2 Mental Health Act (ss 18–33) deals with the management of a defendant when they are detained in a mental health facility including orders made under Pt 2, Div 3 of the 2020 Act.

Sections 18(1)(e) and 24 Mental Health Act provide that a person may be “taken” to and “detained” in a declared mental health facility in accordance with an order made by a magistrate under Pt 2, Div 3 of the 2020 Act. Section 27(1)(a) Mental Health Act requires that the first assessment be conducted by an authorised medical officer as soon as practicable but within 12 hours and further assessments done thereafter under s 27(1)(b) and (c) if required. Reports are to be prepared in accordance with Form 1 Sch 1 Mental Health Regulation 2019.

From the time the s 19 order is made, until the conclusion of the assessment process, the person remains in continuous detention. Even after the assessment has concluded, if the person is admitted for treatment, their detention continues under the provisions of the Mental Health Act.

Where on the order of a magistrate under Pt 2, Div 3 of the 2020 Act a person has been detained in a mental health facility but following an assessment, is not required “to be detained or further detained”, s 32 Mental Health Act takes effect: see s 32(1)(b). The circumstances or scenarios to which s 32 applies are as follows:

Scenarios (i) and (ii) both involve orders under s 19(a). An order under s 19(a) does not, of itself, terminate the Local Court’s jurisdiction even if the defendant is dealt with further under the Mental Health Act — unless the detention continues for 6 months without the defendant being brought back to court: s 23(1) of the 2020 Act; DPP v Wallman [2017] NSWSC 40 at [39]–[41].

Under scenarios (i) and (ii) if a defendant the subject of an order under s 19(a) is found to be mentally disordered but is not, or ceases to be, mentally ill, they may not be held for more than 3 days: DPP v Wallman at [37] citing s 31 Mental Health Act. An authorised medical officer must examine a mentally disordered person detained in a mental health facility at least once every 24 hours: s 31(3) Mental Health Act. If the person is found to be, or becomes, neither mentally disordered nor mentally ill, he or she must not be further detained: s 32(1)–(2) Mental Health Act; DPP v Wallman at [37].

Section 32(2) Mental Health Act mandates the release of the defendant by the authorised medical officer into the custody of the person who took the defendant — that is, police officer, juvenile justice officer, corrective services officer as the case may be (see definition in s 32(7) Mental Health Act of “relevant person”) — who is present at the mental health facility in accordance with the order under Pt 2, Div 3 of the 2020 Act. This release into custody under s 32(2) is for the purpose of ascertaining “the results of any examination or examinations of the defendant”. It appears to assume that the person who took the person to the mental health facility remains there during the assessment.

Section 32(3) Mental Health Act provides that if that person is not present when the authorised medical officer “becomes aware the defendant is no longer required to be detained, or further detained”, the authorised medical officer must notify a police officer at the appropriate police station as soon as practicable that the defendant will not be further detained.

Section 32(4) Mental Health Act provides a framework of options or actions for the authorised medical officer (other than for scenario (iii) where s 32(5) applies) for orders made under Pt 2, Div 3 of the 2020 Act (in appropriate cases). Section 32(4) makes clear that the authorised medical officer is to consider any matter “communicated by a police officer as to the intended apprehension of the person by a police officer”. It is at this point that the police may exercise a prosecutorial discretion not to apprehend the defendant and return the defendant to court. It is only “after” considering any matters communicated by police, may the authorised medical officer do any of the following under s 32(4):

A police officer may apprehend a person under s 32 Mental Health Act without a warrant: s 32(6). If the police apprehend the defendant, cl 29 Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021 empowers the police to take the defendant “from” the mental health facility back to court.

If after notification the police do not apprehend the person, the charge is deemed to be dismissed six months after the date of the s 19 order: s 23(1) of the 2020 Act.

In scenario (iii) where the order was made under s 19(b) of the 2020 Act, it is the duty of the police officer notified by the authorised medical officer to ensure that a police officer attends the mental health facility and apprehends the person as soon as practicable after the notification. In the meantime, s 32(5) Mental Health Act provides that the authorised medical officer must detain the person pending apprehension by the police.

If an order has been made under either s 19(a) or (b) of the 2020 Act, and the defendant is brought back before the court, s 23(2) provides that any period of time spent in the mental health facility as a consequence of the order must be taken into account when dealing with the charge.

As it is likely that any person returned to the court will be in custody, Pt 3 Bail Act 2013 relating to the making and variation of bail decisions applies.

The statutory scheme, as framed, envisages that the police will play an active role both in terms of taking the defendant “to and from” the court and in deciding either to apprehend the defendant and continue proceedings, or to utilise s 32(4) Mental Health Act as a diversionary option. It is well settled that the decision to prosecute or continue proceedings is not part of the Local Court’s function: Elias v The Queen (2013) 248 CLR 483 at [34]. Unlike s 14 orders (see [30-060]), the decision to divert the defendant is made by the prosecution and not by the Local Court. The High Court has emphasised “the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings”: Likiardopoulos v The Queen (2012) 247 CLR 265, French CJ at [2].

It is self-evident that after a s 19(a) or (b) order has been made, it is incumbent on the police to liaise closely with the mental health facility. The practical and communication difficulties that sometimes occur between the mental health facility and the police are not an issue for the Local Court to resolve. The jurisdiction of the Local Court is only enlivened if the procedures and provisions, set out above, are followed and applied. It is important to also note that Parliament envisages that the police have a role to play during the detention period. Section 32(2) Mental Health Act provides that an authorised medical officer must release the person into the custody of any relevant person who is present at the mental health facility to ascertain the results of any examination or examinations of the person. The “relevant person” definition in s 32(7) Mental Health Act includes “any person (including a police officer) charged by the order with taking the person from the facility.” [Emphasis added.]

Section 8 of the 2020 Act permits a magistrate to make an order under s 19 in proceedings under the Bail Act 2013.

Section 18(2) provides a magistrate may make an order under Pt 2, Div 3 of the Act without affecting any other order the magistrate may make, whether by way of adjournment or in relation to bail.

Section 12 Bail Act provides that bail remains until it is revoked or the substantive proceedings for the offence conclude and there are no further substantive proceedings for the offence pending before a court.

However, s 24(1) of the Act provides that an order made by either a magistrate or authorised justice under s 19(a) or (b) or s 21(1)(a) or (b) is, for the purposes of the Bail Act, taken to be a decision to dispense with bail for the offence.

When an order is made under s 19 of the Act, the charge which gave rise to the proceedings is “deemed” to be dismissed if the defendant is not returned to court within a period of six months from the making of the order: s 23. Therefore the orders under s 19 have the potential to be both interlocutory and final.

Once a defendant is found not to be mentally ill or mentally disordered, a police officer, of or above the rank of sergeant, has the power to grant the defendant bail at the particular facility: s 43(1B) Bail Act.

A magistrate may under s 20(1) make a community treatment order (CTO) as an option when dealing with a matter under s 19(c).

A CTO must be in accordance with the Mental Health Act 2007 and all the necessary requirements under that Act must be met (save the holding of an inquiry) before such an order can be made: s 20(1) and (2). The Mental Health Act allows for the assessment to be delayed if the person is suffering from a condition or illness, other than a mental illness or condition, if the person is not fit to be the subject of the assessment. An example is where the defendant has occasioned significant injuries in the course of the commission of an offence or arrest that require immediate treatment (for instance, setting a broken limb under anaesthetic).

There can be circumstances where a defendant is admitted to a mental health facility for treatment for a purpose other than following an assessment ordered by a magistrate.

Section 33 Mental Health Act 2007 allows for the assessment to be delayed if the person is suffering from a condition or illness, other than a mental illness or condition, if the person is not fit to be the subject of the assessment. An example is where the defendant has occasioned significant injuries in the course of the commission of an offence or arrest that require immediate treatment (for instance, setting a broken limb under anaesthetic).

In this circumstance, while the defendant may be admitted for treatment, it is not following an assessment as to his mental health. That assessment can be delayed. If the defendant is found not to be mentally ill or mentally disordered following the assessment as ordered by the magistrate, the defendant can be legitimately returned to court, notwithstanding the admission for treatment for the other illness or condition.

Section 25 applies to defendants who are in custody pending a committal for trial or awaiting summary disposal of their case. Under s 25(2), if it appears to the magistrate that it may be appropriate to transfer the defendant to a mental health facility, an order may be made directing that the defendant be examined by two medical practitioners (including a psychiatrist) and, if appropriate, the relevant certificates be provided to the Secretary of the Ministry of Health under s 86 and that the magistrate be notified of the action, if any, taken under s 86.

In such circumstances, the reports prepared following any examination may form part of the material considered by the court when subsequently determining a treatment order.