Inquiries under the Mental Health (Forensic Provisions) Act 1990
The Mental Health (Forensic Provisions) Act 1990 provides a mechanism for magistrates to deal with persons with mental health disorders and intellectual disability otherwise than in accordance with law. The provisions only apply to summary offences, or to indictable offences triable summarily. The provisions do not apply to committal proceedings.
Reasons must be given for any decision to make or refuse to make any order pursuant to these sections. It is no longer mandatory to disqualify oneself from hearing a matter if a s 32 order 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 an intellectual disability.
For a useful overview of the exercise of the court’s discretion: see DPP v El Mawas (2006) 66 NSWLR 93.
[35-020] To whom do the provisions relate?
Section 32 allows a magistrate to deal with a person under the section if:
[I]t appears to the magistrate … that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
cognitively impaired, or
suffering from mental illness, or
suffering from a mental condition for which treatment is available in mental health facility, but is not a mentally ill person …
Section 33 provides a mechanism for dealing with a defendant who is a mentally ill person within the meaning of Mental Health Act 2007.
See also Person suffering from a mental illness, Commonwealth Offences chapter at [15-140].
[35-040] Definitions — ss 4(1), 14, 15 Mental Health Act 2007, s 32(6) Mental Health (Forensic Provisions) Act 1990
Mental illness — defined in s 4(1)
“mental illness” means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
serious disorder of thought form,
a severe disturbance of mood,
sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).
Mentally ill persons — defined in s 14
A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:
for the person’s own protection from serious harm, or
for the protection of others from serious harm.
In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.
The definition of mentally ill persons was inserted in the Mental Health Act 1990 by the Mental Health Legislation Amendment Act 1997. The definition was re-enacted in the current Act.
The explanatory note in the 1997 Act for this section was as follows:
A person may not be involuntarily detained under the Act unless the person is a mentally ill person or a mentally disordered person. The amendment inserts a new definition of mentally ill person that removes the existing requirement that a person suffering from a mental illness is such a person if the person requires care, treatment or control for the protection of the person or others from serious harm. The effect of this is to enable other kinds of harm, such as financial harm or harm to reputation, to be considered when determining whether a person can be detained as a mentally ill person. The new definition omits the existing provisions classifying persons suffering from certain mental illnesses characterised by severe disturbance of mood or sustained or repeated irrational behaviour as mentally ill if they require care, treatment or control for protection from serious financial harm or serious damage to reputation. The new definition also makes it clear that, in assessing whether a person is a mentally ill person, any likely deterioration in the person’s condition and its effects is to be taken into account.
Mentally disordered persons — defined in s 15
A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:
for the person’s own protection from serious physical harm, or
for the protection of others from serious physical harm.
This category covers persons who are behaving irrationally and are a danger to themselves or to others.
Cognitive impairment – defined in s 32(6) Mental Health (Forensic Provisions) Act 1990
For the purpose of s 32, “cognitive impairment” means ongoing impairment of a person’s comprehension, reasoning, adaptive function, judgment, learning or memory materially affect the ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person’s brain or mind. It includes:
borderline intellectual functioning,
acquired brain injury,
drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
autism spectrum disorder.
[35-060] An inquiry under s 32
The question of the use of these provisions in dealing with a defendant is a discretionary one for the magistrate. In coming to a conclusion the magistrate may inform himself or herself in any way the magistrate thinks fit, but a defendant is not required to incriminate himself or herself: s 36.
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.
The section 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 this part than otherwise in accordance with law. R v HW  NSWLC 25 at  states:
It is recognised by appellate courts that the determination by a magistrate, whether to divert under section 32, requires a weighing of different interests, including the interest of an accused in receiving treatment and the public interest in those charged with criminal offences being dealt with according to law. Issues impacting on the magistrate’s determination include the seriousness of the offence, issues of community safety, the limited duration of a section 32 order (6 months), the efficacy and specificity of a treatment plan, and issues of deterrence in sentencing (refer DPP v El Mawas (2006) 66 NSWLR 93; Quinn v DPP  NSWCA 331; DPP v Saunders  NSWSC 760).
The Act requires the inquiry to be a three-stage process:
first, to decide whether, as a question of fact, the defendant comes within the definition pursuant to s 32
second, to decide, as a matter of discretion whether to deal with the matter otherwise than according to law. In coming to a conclusion the magistrate will need to consider not only the material before the court, but must have regard to the public interest. Regard must be had to the public interest in the defendant having treatment mandated by the court, and the public interest in having the matter dealt with according to law
third, once it has been determined that it is more appropriate to deal with the defendant in accordance with s 32, the magistrate must determine which of the actions set out in subs (2) or (3) should be taken.
Section 32(2) sets out the following options available to the magistrate, namely:
adjourn the proceedings
grant the defendant bail in accordance with the Bail Act 2013, or
make any other order that the magistrate considers appropriate.
Section 32(3) provides that the magistrate may dismiss the charge and discharge the defendant:
into the care of a responsible person, unconditionally or subject to conditions
on the condition that the defendant attend on a person or at a place specified by the magistrate for assessment of the defendant’s mental condition or treatment or both; or to enable the provision of support in relation to the defendant’s cognitive impairment (this will be generally to attend a community medical centre, or psychiatrist, or in the case of intellectual disability, a suitable support facility). Section 32(3)(b) requires the person or place nominated in the orders to be specified with some precision. Failing to name a particular person or particular place would render enforcement under ss 32(3A)–(3D) virtually nugatory: DPP v Saunders, above, at , or
The magistrate would normally sign a formal order which might be in the following terms:
Should the charge be dismissed under this section, then this does not constitute a finding that the charges are proven or otherwise: s 32(4). It should be noted that where charges are dismissed subject to conditions, there is now sanction if any conditions imposed are not complied with.
[35-080] Enforceability of s 32 conditional discharge orders
Sections 32(3A), (3B), (3C)
If the court becomes aware that any conditions of a discharge are not being fulfilled, it may, within six months of the order being made, issue a call-up notice (or warrant if the defendant fails to appear or if their whereabouts is unknown) to bring the defendant back before it.
The following procedure is suggested when making a conditional discharge order to assist in enforcement procedure.
The service provider (community health centre, disability service or psychiatrist) has provided a written report and is able to provide the service which will form the conditions of discharge.
Any “responsible person” in whose care the defendant is placed is aware of the conditions and consent to the order.
The defendant has consented to the service provider notifying the court or Community Corrections Offices (Probation and Parole) in the event of a breach.
It is not appropriate to include a conditional discharge order that the defendant be of good behaviour or that he or she be supervised by Community Corrections Offices (Probation and Parole). If any reference is to be made to the Service the following wording is suggested:
Breaches of s 32 conditional orders will be notified to the court by Community Corrections Offices (Probation and Parole), which has negotiated a protocol with service providers, statewide. Notice of breach will be given to a magistrate who can then decide whether to action the matter pursuant to (3B) or (3C).
[35-100] Breach proceedings
Breach proceedings can only be taken up to six months after a conditional discharge: s 32(3D).
Committing further offences does not automatically result in a breach of a conditional discharge order. A breach must result from a failure of the defendant to comply with mental health or disability service support conditions.
[35-120] Orders under s 33 Mental Health (Forensic Provisions) Act 1990
Section 33 provides a mechanism for dealing with a defendant where “it appears to the Magistrate that the defendant is a mentally ill person” within the meaning of the Mental Health Act 2007: see definition of mental illness at [35-040]. The power to make an order does not extend to “mentally disordered” defendants: DPP v Wallman  NSWSC 40 at . The word “appears” in s 33(1) is to be determined by the subjective state of mind of the magistrate: State of NSW v Talovic (2014) 87 NSWLR 512 at – — see interpretation of identical wording used in s 22 Mental Health Act 2007.
Section 33 was amended with effect from 25 September 2017 to address practical difficulties which previously arose.
Section 33(1) provides that the magistrate may:
order that the defendant be taken to, and detained in, a mental health facility for assessment: s 33(1)(a), or
order that the defendant be taken to, and be detained in, a mental health facility for assessment and if the defendant is found on assessment not to be a mentally ill person or a mentally disordered person, the person be brought back before a magistrate or an authorised officer unless granted bail by a police officer at that facility: s 33(1)(b), or
discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person: s 33(1)(c).
This order 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 [35-150].
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 ss 33(1) or (1A): s 33(4A). It is necessary to make a finding that the defendant appears to be mentally ill. A finding that the defendant is mentally disordered is not sufficient: DPP v Wallman, above, at .
Orders under s 33(1) must also be made with the defendant present and not in chambers in the absence of the parties: DPP v Wallman at –.
Section 33(1D) provides an authorised officer (defined under ss 33(6) and 3(1) Criminal Procedure Act to include registrars) in the hearing of proceedings under the Bail Act 2013 may make orders in identical terms to those in (a) and (b) above if it appears to the authorised officer that the defendant is a mentally ill person. The authorised officer must state the reasons for making a decision as to whether or not a defendant should be dealt with under s 33(1D): s 33(4B). See further discussion concerning bail below at [35-140].
If an order has already been made by an authorised officer under s 33(1D) in bail proceedings, it is an error for a magistrate to make another order either under s 33(1)(a) or s 33(1)(b): DPP v Wallman at .
“Mental health facility” in s 33 has the same meaning as it has in the Mental Health Act: s 4. The latter Act defines the expression to mean “a declared mental health facility or a private mental health facility”.
Clause 14 Mental Health (Forensic Provisions) Regulation 2017 prescribes the persons who may “take a defendant to or from a place” for the purposes of s 33. Specific people are prescribed where the defendant is on remand or serving a sentence of imprisonment, or a juvenile in a detention centre. In “any other case” 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 charge sheets and police facts and any other material 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 33(1)(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 -.
An order under ss 33(1)(a) or (1)(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 [35-130]. The NSWLRC report stated that s 33(1)(a) can 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 his/her mental health issues: NSWLRC, Report No 135 at [10.21–10.25] referred to in State of NSW v Roberson (2016) 338 ALR 166 at . Section 33(2) provides that the charges are taken to be dismissed 6 months from the date of the s 33 order.
In other cases such as indictable offences dealt with summarily or repeat offenders, an order under ss 33(1)(a) or (1)(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 . See further explanation at [35-130].
If an order is made under s 33(1)(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 mentally ill person nor a mentally disordered person, the police are required by the s 33(1)(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 33(1)(b), the text of s 33(1) “without derogating from any other order the Magistrate may make in relation to the defendant” indicates that the selection of an order under s 33(1)(a), (b) or (c) does not limit the powers of the court. It assumes that 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.
[35-130] Detention and release following an order under s 33
Where a s 33(1) order has been made it is important to understand the interplay and direct connection between the Mental Health Act and the Mental Health (Forensic Provisions) 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 he/she is detained in a mental health facility including orders made under s 33 Mental Health (Forensic Provisions) Act.
Sections 18(1)(e) and 24 Mental Health Act provide that a person may be “taken” and “detained” in a declared mental health facility in accordance with an order made by a magistrate under s 33. Section 27(a) 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(b) and (c) if required. Reports are to be prepared in accordance with Form 1 Sch 1 Mental Health Regulation 2013.
From the time the s 33 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 s 33 a person has been detained in a mental health facility but following an assessment, is not required “to be detained or further detained”, section s 32 Mental Health Act takes effect: see s 32(1)(b). The circumstances or scenarios to which s 32 applies are as follows:
The defendant has been taken to the mental health facility following an order under s 33(1)(a) Mental Health (Forensic Provisions) Act to be detained for an assessment. Following detention for assessment, it is decided the defendant is not a mentally ill person and does not require an admission for treatment.
The defendant has been taken to the mental health facility following an order under s 33(1)(a) Mental Health (Forensic Provisions) Act to be detained for the purpose of an assessment. Following detention for assessment, the defendant is then further detained as an involuntary patient for treatment and at the conclusion of that treatment is no longer required to be further detained.
The defendant has been taken to the mental health facility following an order under s 33(1)(b) Mental Health (Forensic Provisions) Act to be detained for the purpose of an assessment. Following the detention for assessment, the defendant is then found by the medical officer not to be a mentally ill or a mentally disordered person and, the defendant is to be brought back before a magistrate or authorised officer, unless the defendant is granted bail by a police officer at the facility.
The defendant has been taken to the mental health facility following an order under s 33(1)(b) Mental Health (Forensic Provisions) Act to be detained for the purpose of an assessment. Following the detention for assessment, the defendant is found to be a mentally ill or mentally disordered person, is further detained as an involuntary patient for treatment and at the conclusion of that treatment is no longer required to be further detained.
Scenarios (i) and (ii) both involve orders under s 33(1)(a). An order under s 33(1)(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 33(2) Mental Health (Forensic Provisions) Act; DPP v Wallman  NSWSC 40 at -.
Under scenarios (i) and (ii) if a defendant the subject of an order under s 33(1)(a) is found to be mentally disordered but is not, or ceases to be, mentally ill, he or she may not be held for more than 3 days: DPP v Wallman  NSWSC 40 at  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  NSWSC 40 at .
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 s 33 Mental Health (Forensic Provisions) 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 ss 33(1)(a) and (1)(b) (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):
detain the person for a period not exceeding two hours pending apprehension by a police officer
admit the person as a voluntary patient
discharge the person into the care of the person’s primary carer
discharge the person.
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 14 Mental Health (Forensic Provisions) Regulation 2017 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 6 months after the date of the s 33 order: s 33(2) Mental Health (Forensic Provisions) Act.
In scenario (iii) where the order was made under s 33(1)(b) Mental Health (Forensic Provisions) 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 33(1)(a) or (1)(b) Mental Health (Forensic Provisions) Act, and the defendant is brought back before the court, s 33(3) 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 applies: “Making and variation of bail decisions”.
[35-135] The prosecution and s 33 orders
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 no part of the Local Court’s function: Elias v The Queen (2013) 248 CLR 483 at . Unlike s 32 orders (see [35-060]), 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 .
It is self-evident that after a s 33(1)(a) or (1)(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) 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.]
[35-140] Section 33 and bail
Section 31 permits a magistrate to make an order under s 33 in proceedings under the Bail Act 2013.
Section 33(1) Mental Health (Forensic Provisions) Act provides that any order made under s 33 does not derogate from any other order the magistrate may make including “the granting of bail in accordance with the Bail Act 2013”.
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 33(5B) provides that an order made by either a magistrate or authorised officer under s 33(1)(a) or (b) or (1D)(a) or (b) is, for the purposes of the Bail Act 2013, taken to be a decision to dispense with bail for the offence. This provision was inserted into the Act by the Justice Legislation Amendment Act (No 2) 2017 and commenced on 25 September 2017. This addresses issues previously identified about the interaction between the Bail Act 2013 and the Mental Health (Forensic Provisions) Act 1990.
When an order is made under s 33 Mental Health (Forensic Provisions) 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 6 months from the making of the order. Therefore the orders under s 33 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 2013.
[35-150] Community treatment orders
A magistrate may under s 33(1A) make a community treatment order (CTO) as an option when dealing with a matter under s 33(1)(c).
A CTO must be in accordance with the Mental Health Act 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 33(1A) and (1B). 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).
Before making a CTO under this provision, the magistrate must notify the Secretary of the Ministry of Health, or a person authorised by the Secretary of the Ministry of Health of the proposed order: s 33(1C).
[35-160] Admission for purpose other than mental health assessment
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 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.