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New South Wales
Mental Health and Cognitive Impairment
Forensic Provisions Bill 2020
Contents
Page
Part 1 Preliminary
1 Name of Act 8
2 Commencement 8
3 Definitions 8
4 Mental health impairment 9
5 Cognitive impairment 9
6 References to juries and matters determined by a judge alone 10
Part 2 Summary proceedings
Division 1 Preliminary
7 Interpretation 11
8 Application of Part 11
9 Magistrate may make order at any time 11
10 Means by which Magistrate may be informed 11
11 Magistrate to state reasons for decisions 11
Division 2 Defendants with mental health impairments or cognitive
impairments
12 Defendants with mental health impairments or cognitive impairments 11
13 Adjournment of proceedings 12
14 Orders Magistrate may make 12
Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Contents
Page
15 Considerations of Magistrate when making order 12
16 Failure of defendant to comply with condition of order 13
17 Reports from treatment providers 13
Division 3 Mentally ill or mentally disordered persons
18 Mentally ill or mentally disordered persons 13
19 Orders Magistrate may make 13
20 Community treatment orders 14
21 Proceedings before authorised justice 14
22 Orders may relate to transfer of defendants by certain persons 14
23 Dismissal of charges 15
24 Bail 15
Division 4 General
25 Transfer from correctional centre or detention centre 15
26 Regulations 16
Part 3 Defence of mental health impairment or cognitive impairment
27 Application of Part 17
28 Defence of mental health impairment or cognitive impairment 17
29 Explanation to jury 17
30 Effect of finding of act proven but not criminally responsible because
of mental health impairment or cognitive impairment 17
31 Special verdict where defendant and prosecutor agree on impairment 18
32 Special verdict not available for alternative offence 18
33 Effect of special verdict 18
34 Referral of defendant to Tribunal 18
Part 4 Fitness to stand trial
Division 1 Preliminary
35 Application of Part 19
36 Fitness test 19
37 When question of unfitness may be raised 19
38 Question of unfitness to be determined on balance of probabilities 19
39 Court and other persons may raise question of unfitness 19
Division 2 Procedure when question of unfitness to be tried raised
40 Procedure where question of unfitness raised before arraignment 20
41 Procedure where question of unfitness raised after arraignment 20
42 When an inquiry is required or may not be held 20
43 Actions pending inquiry 20
44 Inquiry procedures 21
45 Presumptions as to findings about unfitness 21
46 Finding after inquiry that defendant is fit to be tried 21
47 Finding after inquiry that defendant is unfit to be tried 21
48 Finding after inquiry that defendant will not become fit to be tried
within 12 months 22
49 Tribunal review and court orders after finding that defendant may be
fit to be tried within 12 months 22
50 Finding by Tribunal that defendant is fit to be tried 22
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Contents
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51 Finding by Tribunal that defendant will not become fit to be tried
within 12 months 22
52 Committal proceedings following finding of fit to be tried 22
53 Advice as to whether further proceedings are to be taken 23
Division 3 Special hearings
54 Nature of special hearings 23
55 When special hearings are held 24
56 Procedure for special hearings 24
57 Amendment of indictment 25
58 Juries at special hearings 25
59 Verdicts at special hearings 25
60 Verdict of not guilty 26
61 Special verdict of act proven but not criminally responsible because of
mental health impairment or cognitive impairment 26
62 Verdict of offence committed on limited evidence available 26
63 Penalties after finding of guilt 26
64 Commencement of limiting terms 27
65 Referral to Tribunal after limiting term imposed 27
66 Reports about defendant 27
67 Referral of defendant to Tribunal following special verdict 28
68 Effect of finding that offence was committed on other proceedings for
the offence 28
Part 5 Forensic patients and correctional patients
Division 1 General principles and concepts
69 Objects 29
70 Treatment, care and detention of patients 29
71 Application of provisions of Mental Health Act 2007 to forensic patients
and correctional patients 29
72 Forensic patients 29
73 Correctional patients 30
74 Role of objects and principles provisions 30
Division 2 General provisions relating to reviews by Tribunal
75 Matters Tribunal must consider that apply to all orders 30
76 Unlawful absence from mental health facility or other place 30
77 Extension of mandatory review period 30
Division 3 Reviews of forensic patients by Tribunal
78 Mandatory reviews of forensic patients 31
79 Tribunal may review patient at any time 31
80 Reviews of persons found unfit to be tried for an offence 31
81 Orders that may be made on reviews generally 31
82 Orders for transfer of forensic patients 32
83 Orders for release of forensic patients 32
84 Matters that Tribunal must consider when determining whether to
release a forensic patient 32
85 Conditions that may be imposed by Tribunal on release of forensic
patients 32
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Contents
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Division 4 Transfer of correctional patients, forensic patients and other
persons in custody
86 Transfer from correctional centre or detention centre by Secretary 33
87 Transfer back to correctional centre or detention centre 33
88 Requests for transfer to correctional centre or detention centre 34
89 Reviews by Tribunal of persons awaiting transfer to mental health
facility 34
90 Reviews of patients transferred under this Division 34
Division 5 Reviews of correctional patients
91 Mandatory reviews of correctional patients 34
92 Periodic and other reviews of correctional patients 35
93 Tribunal may review patient at any time 35
Division 6 Leave of absence
94 Tribunal may grant leave for forensic patients 35
95 Commissioner of Corrective Services may grant leave for correctional
patients 35
96 Leave for forensic patients and correctional patients in emergencies or
special circumstances 36
97 Appeals against decisions of Secretary 36
98 Grants of leave do not affect sentences or limiting terms 36
Division 7 Community treatment orders
99 Community treatment orders 36
100 Reviews of persons in custody who are subject to community
treatment orders 37
Division 8 Termination of status as patient and other status changes
101 Termination of status as forensic patient 37
102 Effect of unlawful absence on limiting term 38
103 Extension of status as forensic patient 38
104 Termination of status as correctional patient 38
105 Classification of patients as involuntary patients 38
106 Limits on classification of forensic patients 39
107 Release from detention on ceasing to be a forensic patient or
correctional patient 39
108 Person who ceases to be forensic patient or correctional patient may
become voluntary patient 39
Division 9 Enforcement
109 Breach of orders for release 39
110 Execution of apprehension orders 40
111 Apprehension of persons not permitted to be absent from mental
health facility 40
112 Apprehended person may seek reconsideration by Tribunal 41
113 Aiding or permitting escape 41
114 Issue of warrants for apprehension of persons outside State and other
persons 41
Division 10 Miscellaneous
115 Transfer and transport of patients 42
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
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116 Effect of detention in mental health facility on sentence and parole 42
117 Security conditions for patients 42
118 Planning for release and leave 43
119 Retaking of escapees 43
120 Forensic patients and correctional patients in the community may be
detained and treated under Mental Health Act 2007 44
Part 6 Extension of status as forensic patient
Division 1 Extension orders
121 Extension orders for forensic patients 45
122 Forensic patients in respect of whom extension orders may be made 45
Division 2 Application for extension orders
123 Minister may apply for extension order 45
124 Application for extension order 45
125 Requirements with respect to application 45
126 Pre-hearing procedures 46
Division 3 Determination of applications
127 Determination of application for extension orders 47
128 Term of extension orders 47
129 Continuation of orders relating to forensic patients 48
Division 4 Interim extension orders
130 Interim extension orders 48
131 Term of interim extension orders 48
132 Interim extension orders to continue in force for 24 hours in certain
circumstances 48
Division 5 Extension orders or interim extension orders may be varied or
revoked
133 Extension order or interim extension order may be varied or revoked 48
Division 6 Supreme Court proceedings
134 Nature of proceedings 49
135 Right of appeal 49
136 Costs not to be awarded against forensic patient 49
137 Preservation of Supreme Court jurisdiction 49
Division 7 Miscellaneous
138 Minister may require provision of certain information 49
139 Information sharing 50
140 Protection of certain persons from liability 50
141 Hearings 50
142 Bail Act 2013 not to apply 50
143 Rules of court 50
144 Qualification of psychiatrists 51
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
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Part 7 Tribunal proceedings
Division 1 Provisions relating to proceedings
145 Victims and reviews by Tribunal 52
146 Tribunal may amend or impose conditions on release or leave orders
on application of victims 52
147 General matters relating to Tribunal functions 53
148 Forensic Division to exercise functions 53
Division 2 Appeals
149 References to matters of law 54
150 Appeals against Tribunal determinations generally 54
151 Appeals against release decisions 54
152 Making of appeals 54
153 Decisions on appeal 55
154 Rehearings by Tribunal 55
155 Tribunal not liable for costs 55
Part 8 Victims Register
156 Victims Register 56
157 Notification to victims of reviews and other matters 56
Part 9 Miscellaneous
158 Notification of expiry of limiting term or extension order 58
159 Duties of certain agencies 58
160 Tribunal to be notified if charges dismissed or proceedings end 58
161 Exchange of information 58
162 Functions of Commissioner of Corrective Services and Secretary of
Department of Communities and Justice 59
163 Proceedings for offences 59
164 Delegation 59
165 Orders for transfer of forensic patients 60
166 Regulations 60
167 Repeals 60
Schedule 1 Medical certificate as to examination of inmate 61
Schedule 2 Savings, transitional and other provisions 62
Schedule 3 Amendment of Acts 64
Page 6
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2020
New South Wales
Mental Health and Cognitive Impairment
Forensic Provisions Bill 2020
Act No , 2020
An Act with respect to criminal proceedings involving persons with a mental health impairment
or cognitive impairment and the care, treatment and control of those persons; and for other
purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts--
Part 1 Preliminary
1 Name of Act
This Act is the Mental Health and Cognitive Impairment Forensic Provisions
Act 2020.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act--
cognitive impairment--see section 5.
Commissioner of Victims Rights means the Commissioner of Victims Rights
established under the Victims Rights and Support Act 2013.
correctional centre has the same meaning as in the Crimes (Administration of
Sentences) Act 1999.
correctional patient--see section 73.
defence of mental health impairment or cognitive impairment means the defence
established under section 28(1).
defendant includes an accused person and a person about whom a finding has been
made at a special hearing.
detention centre has the same meaning as in the Children (Detention Centres) Act
1987.
extension order means an order for the extension of a person's status as a forensic
patient under section 121.
Forensic Division of the Tribunal means the Forensic Division of the Tribunal
established under Division 1 of Part 7.
forensic patient--see section 72.
high risk offender detention order means a continuing detention order or an interim
detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism
(High Risk Offenders) Act 2017.
inmate has the same meaning as in the Crimes (Administration of Sentences) Act
1999.
inquiry means an inquiry conducted under Division 2 of Part 4 in order to determine
whether a person is unfit to be tried for an offence.
interim extension order means an order for the interim extension of a person's status
as a forensic patient under section 130.
limiting term means a term nominated for a person under Division 3 of Part 4.
Magistrate means a Magistrate or a Children's Magistrate.
mental health impairment--see section 4.
registered victim means a victim registered on the Victims Register.
Secretary means the Secretary of the Ministry of Health.
special hearing--see section 54.
special verdict of act proven but not criminally responsible means a special verdict
of act proven but not criminally responsible entered at a trial or following a special
hearing if the defence of mental health impairment or cognitive impairment is
established.
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Part 1 Preliminary
Tribunal means the Mental Health Review Tribunal constituted under the Mental
Health Act 2007.
victim of a forensic patient means a primary victim, or a family victim, of an act of
violence (within the meaning of the Victims Rights and Support Act 2013) committed
by the forensic patient.
Victims Register means the Register established under Part 8.
Note. The Interpretation Act 1987 contains definitions and other provisions that affect the
interpretation and application of this Act.
(2) Words and expressions used in this Act have the same meanings as in the Mental
Health Act 2007.
(3) For the purposes of the application of this Act to a person detained in, or transferred
to or from, a detention centre--
(a) a reference to the Commissioner of Corrective Services is taken to be a
reference to the Secretary of the Department of Communities and Justice, and
(b) a reference to a sentence of imprisonment is taken to include a reference to a
term of detention under a detention order within the meaning of the Children
(Detention Centres) Act 1987.
(4) Notes included in this Act do not form part of this Act.
4 Mental health impairment
(1) For the purposes of this Act, a person has a mental health impairment if--
(a) the person has a temporary or ongoing disturbance of thought, mood, volition,
perception or memory, and
(b) the disturbance would be regarded as significant for clinical diagnostic
purposes, and
(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the
person.
(2) A mental health impairment may arise from any of the following disorders but may
also arise for other reasons--
(a) an anxiety disorder,
(b) an affective disorder, including clinical depression and bipolar disorder,
(c) a psychotic disorder,
(d) a substance induced mental disorder that is not temporary.
(3) A person does not have a mental health impairment for the purposes of this Act if the
person's impairment is caused solely by--
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.
5 Cognitive impairment
(1) For the purposes of this Act, a person has a cognitive impairment if--
(a) the person has an ongoing impairment in adaptive functioning, and
(b) the person has an ongoing impairment in comprehension, reason, judgment,
learning or memory, and
(c) the impairments result from damage to or dysfunction, developmental delay or
deterioration of the person's brain or mind that may arise from a condition set
out in subsection (2) or for other reasons.
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Part 1 Preliminary
(2) A cognitive impairment may arise from any of the following conditions but may also
arise for other reasons--
(a) intellectual disability,
(b) borderline intellectual functioning,
(c) dementia,
(d) an acquired brain injury,
(e) drug or alcohol related brain damage, including foetal alcohol spectrum
disorder,
(f) autism spectrum disorder.
6 References to juries and matters determined by a judge alone
In this Act (other than sections 29, 41, 56 and 58), a reference to a matter or question
that is or is to be determined by a jury, or to another function of a jury, includes a
reference to a judge in proceedings determined by a judge alone.
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Part 2 Summary proceedings
Part 2 Summary proceedings
Division 1 Preliminary
7 Interpretation
(1) In this Part--
authorised justice has the same meaning as in the Bail Act 2013.
authorised officer has the same meaning as in the Criminal Procedure Act 1986.
juvenile justice officer has the same meaning as in the Children (Detention Centres)
Act 1987.
treatment or support plan means a plan outlining programs, services or treatments
or other support that may be required by a defendant to address the defendant's
apparent mental health impairment or cognitive impairment.
(2) A reference to an order in a Division of this Part is a reference to an order made under
that Division.
8 Application of Part
(1) This Part applies to the following criminal proceedings before a Magistrate--
(a) summary proceedings for offences,
(b) indictable offences triable summarily,
(c) any related proceedings under the Bail Act 2013.
(2) This Part does not apply to committal proceedings.
9 Magistrate may make order at any time
(1) A Magistrate may make an order specified under this Part at the commencement of
or at any other time during the course of proceedings before the Magistrate, whether
or not the defendant has entered a plea.
(2) An order may be made under this Part on application or on the Magistrate's own
initiative.
10 Means by which Magistrate may be informed
For the purposes of this Part, a Magistrate may inform himself or herself as the
Magistrate thinks fit, but not so as to require a defendant to incriminate himself or
herself.
11 Magistrate to state reasons for decisions
(1) A Magistrate is to state the reasons for making a decision as to whether or not a
defendant should be dealt with by an order under this Part.
(2) A failure to comply with this section does not invalidate a decision of a Magistrate
under this Part.
Division 2 Defendants with mental health impairments or cognitive
impairments
12 Defendants with mental health impairments or cognitive impairments
(1) A Magistrate may make an order under this Division or adjourn proceedings if it
appears to the Magistrate that the defendant has (or had at the time of the alleged
commission of the offence to which the proceedings relate) a mental health
impairment or a cognitive impairment, or both.
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Part 2 Summary proceedings
(2) The Magistrate may take action under this Division only if it appears to the
Magistrate, on an outline of the facts alleged in the proceedings or other evidence the
Magistrate considers relevant, it would be more appropriate to deal with the
defendant in accordance with this Division than otherwise in accordance with law.
(3) This Division does not apply if the defendant is a mentally ill person or a mentally
disordered person.
13 Adjournment of proceedings
A Magistrate may, for the purposes of this Division--
(a) adjourn proceedings to enable--
(i) the defendant's apparent mental health impairment or cognitive
impairment to be assessed or diagnosed, or
(ii) the development of a treatment or support plan for the defendant for the
purposes of an order, or
(iii) a responsible person to be identified for the purposes of an order, or
(iv) for any other reason the Magistrate considers appropriate in the
circumstances, or
(b) make other interim orders that the Magistrate considers appropriate.
14 Orders Magistrate may make
(1) A Magistrate may make an order to dismiss a charge and discharge the defendant--
(a) into the care of a responsible person, unconditionally or subject to conditions,
or
(b) on the condition that the defendant attend on a person or at a place specified
by the Magistrate for assessment, treatment or the provision of support for the
defendant's mental health impairment or cognitive impairment, or
(c) unconditionally.
(2) An order to dismiss a charge against a defendant does not constitute a finding that the
charge against the defendant is proven or otherwise.
15 Considerations of Magistrate when making order
In deciding whether it would be more appropriate to deal with a defendant in
accordance with this Division, the Magistrate may consider the following--
(a) the nature of the defendant's apparent mental health impairment or cognitive
impairment,
(b) the nature, seriousness and circumstances of the alleged offence,
(c) the suitability of the sentencing options available if the defendant is found
guilty of the offence,
(d) relevant changes in the circumstances of the defendant since the alleged
commission of the offence,
(e) the defendant's criminal history,
(f) whether the defendant has previously been the subject of an order under this
Act or section 32 of the Mental Health (Forensic Provisions) Act 1990,
(g) whether a treatment or support plan has been prepared in relation to the
defendant and the content of that plan,
(h) whether the defendant is likely to endanger the safety of the defendant, a
victim of the defendant or any other member of the public,
(i) other relevant factors.
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Part 2 Summary proceedings
16 Failure of defendant to comply with condition of order
(1) If a Magistrate suspects that a defendant has failed to comply with a condition of an
order under section 14, the Magistrate may, within 12 months of the order being
made, order the defendant to appear before the Magistrate.
(2) If the defendant fails to appear, the Magistrate may--
(a) issue a warrant for the defendant's arrest, or
(b) authorise an authorised officer to issue a warrant for the defendant's arrest.
(3) If at the time the Magistrate proposes to make an order under subsection (1) the
Magistrate is satisfied that the location of the defendant is unknown, the Magistrate
may immediately--
(a) issue a warrant for the defendant's arrest, or
(b) authorise an authorised officer to issue a warrant for the defendant's arrest.
(4) If a Magistrate discharges a defendant subject to a condition under an order, and the
defendant fails to comply with the condition within 12 months of the discharge, the
Magistrate may deal with the charge as if the defendant had not been discharged.
17 Reports from treatment providers
(1) Despite any law, a person who is, in accordance with an order under section 14, to
assess another person's mental condition or provide treatment to another person (a
treatment provider) may report a failure to comply with a condition of the order by
the other person to any of the following--
(a) an officer of the Department of Communities and Justice,
(b) another person or body prescribed by the regulations.
(2) A treatment provider may include in the report information that the treatment
provider considers is relevant to the making of a decision in relation to the failure to
comply with the condition.
(3) The report is to be in the form approved for the time being by the Secretary of the
Department of Communities and Justice.
Division 3 Mentally ill or mentally disordered persons
18 Mentally ill or mentally disordered persons
(1) A Magistrate may make an order under this Division if it appears to the Magistrate
that the defendant is a mentally ill person or a mentally disordered person.
(2) A Magistrate may make an order under this Division without affecting any other
order the Magistrate may make in relation to the defendant, whether by way of
adjournment, the granting of bail in accordance with the Bail Act 2013 or otherwise.
Note. Certain orders by a Magistrate or authorised justice under this Division in relation to an
offence are taken to be a decision to dispense with bail for the offence (see section 24).
19 Orders Magistrate may make
A Magistrate may make one or more of the following orders--
(a) an order that the defendant be taken to, and detained in, a mental health facility
for assessment,
(b) an order that the defendant be taken to, and detained in, a mental health facility
for assessment and that, if the defendant is found on assessment at the mental
health facility not to be a mentally ill person or mentally disordered person, the
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Part 2 Summary proceedings
defendant be brought back before a Magistrate or an authorised justice as soon
as practicable unless granted bail by a police officer at that facility,
(c) an order for the discharge of the defendant, unconditionally or subject to
conditions, into the care of a responsible person.
20 Community treatment orders
(1) Without limiting section 19(c), the Magistrate may make a community treatment
order in accordance with the Mental Health Act 2007 for implementation by a
declared mental health facility in relation to the defendant, if the Magistrate is
satisfied that all of the requirements for the making of a community treatment order
at a mental health inquiry under that Act (other than the holding of an inquiry) have
been met in respect of the defendant.
(2) The Mental Health Act 2007 (other than section 51(1) and (2)) applies to and in
respect of the defendant and a community treatment order as if the order had been
made by the Tribunal under that Act.
21 Proceedings before authorised justice
(1) If, at the commencement of or at any time during the course of the hearing of
proceedings under the Bail Act 2013 before an authorised justice, it appears to the
authorised justice that the defendant is a mentally ill person or a mentally disordered
person, the authorised justice may (without affecting any other order under the Bail
Act 2013 that the officer may make in relation to the defendant)--
(a) order that the defendant be taken to, and detained in, a mental health facility
for assessment, or
(b) order that the defendant be taken to, and detained in, a mental health facility
for assessment and that, if the defendant is found on assessment at the mental
health facility not to be a mentally ill person or mentally disordered person, the
defendant be brought back before a Magistrate or an authorised justice as soon
as practicable unless granted bail by a police officer at that facility.
(2) An authorised justice is to state the reasons for making a decision as to whether or
not a defendant should be dealt with by an order under subsection (1).
(3) A failure to comply with subsection (2) does not invalidate a decision of an
authorised justice under this section.
22 Orders may relate to transfer of defendants by certain persons
(1) An order by a Magistrate or authorised justice may provide that a defendant--
(a) in the case of a defendant who is under the age of 18 years, be taken to or from
a place by a juvenile justice officer, or
(b) in the case of any defendant, be taken to or from a place by a person of a kind
prescribed by the regulations for the purposes of this section.
(2) A function conferred on a juvenile justice officer under an order is taken to be a
function under the Children (Detention Centres) Act 1987 and the juvenile justice
officer has the same functions in respect of the defendant as the officer has in respect
of a detainee under that Act and the regulations under that Act.
(3) If a correctional officer has power under an order to take a defendant to or from a
place, that power is taken to be a function under the Crimes (Administration of
Sentences) Act 1999 and the correctional officer has the same functions in respect of
the defendant as the officer has in respect of an inmate under that Act and the
regulations under that Act.
(4) In this section--
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Part 2 Summary proceedings
correctional officer has the same meaning as in the Crimes (Administration of
Sentences) Act 1999.
23 Dismissal of charges
(1) If a defendant is dealt with by a Magistrate or authorised justice in accordance with
this Division, the charge which gave rise to the proceedings, on the expiration of the
period of 6 months after the date on which the defendant is so dealt with, is taken to
have been dismissed unless, within that period, the defendant is brought before a
Magistrate to be further dealt with in relation to the charge.
(2) If a defendant is brought before a Magistrate to be further dealt with in relation to a
charge, the Magistrate must, in dealing with the charge, take account of any period
during which the defendant was detained in a mental health facility as a consequence
of an order.
(3) The fact that charges are taken to have been dismissed under subsection (1) does not
constitute a finding that the charges against the defendant are proven or otherwise.
24 Bail
(1) An order by a Magistrate or authorised justice under section 19(a) or (b) or 21(1)(a)
or (b) in relation to an offence is, for the purposes of the Bail Act 2013, taken to be a
decision to dispense with bail for the offence.
(2) An order under section 19(b) or 21(1)(b) that a defendant be brought back before a
Magistrate or authorised justice may be satisfied by taking the defendant to an
appropriate police officer for the making of a bail decision in respect of the
defendant.
(3) An appropriate police officer may make a bail decision in respect of a defendant
brought before the appropriate police officer under this section (despite section 43(3)
of the Bail Act 2013).
(4) In this section--
appropriate police officer means a police officer who may make a bail decision
under the Bail Act 2013 in respect of a person accused of an offence who is present
at a police station.
Division 4 General
25 Transfer from correctional centre or detention centre
(1) This section applies to a person who is awaiting committal for trial or trial for an
offence or summary disposal of the person's case.
(2) If it appears to a Magistrate that it may be appropriate to transfer a person to whom
this section applies from a correctional centre or detention centre to a mental health
facility under section 86, the Magistrate may make an order directing--
(a) that the defendant be examined by 2 medical practitioners, 1 of whom is a
psychiatrist, and
(b) that, if appropriate, the relevant certificates be given to the Secretary under
section 86, and
(c) that the Chief Executive, Justice Health or, in the case of a person who is under
the age of 18 years, the Secretary of the Department of Communities and
Justice to ensure that the Magistrate is notified of the action, if any, taken
under section 86.
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Part 2 Summary proceedings
26 Regulations
The regulations may prescribe the form of an order under this Part.
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Part 3 Defence of mental health impairment or cognitive impairment
Part 3 Defence of mental health impairment or cognitive
impairment
27 Application of Part
This Part applies to criminal proceedings in the Supreme Court (including criminal
proceedings within the summary jurisdiction of the Supreme Court) and the District
Court.
28 Defence of mental health impairment or cognitive impairment
(1) A person is not criminally responsible for an offence if, at the time of carrying out
the act constituting the offence, the person had a mental health impairment or a
cognitive impairment, or both, that had the effect that the person--
(a) did not know the nature and quality of the act, or
(b) did not know that the act was wrong (that is, the person could not reason with
a moderate degree of sense and composure about whether the act, as perceived
by reasonable people, was wrong).
(2) The question of whether a defendant had a mental health impairment or a cognitive
impairment, or both, that had that effect is a question of fact and is to be determined
by the jury on the balance of probabilities.
(3) Until the contrary is proved, it is presumed that a defendant did not have a mental
health impairment or cognitive impairment, or both, that had that effect.
(4) In this Part, act includes--
(a) an omission, and
(b) a series of acts or omissions.
29 Explanation to jury
The judge must explain the following matters to the jury if the question of whether
the defendant had a mental health impairment or a cognitive impairment, or both, as
referred to in section 28(1) is raised--
(a) the findings which may be made on the trial,
(b) the legal and practical consequences of those findings,
(c) the composition of the Tribunal and its relevant functions with respect to
forensic patients,
(d) without limiting paragraph (b), that a defendant who is found to have
committed the act constituting the offence but not to be criminally responsible
because of a mental health impairment or cognitive impairment, or both, may
be ordered to be released by the Tribunal only if the Tribunal is satisfied, on
the evidence available to it, that the safety of the defendant or any member of
the public will not be seriously endangered by the defendant's release,
(e) that the jury should not be influenced by the consequences of a special verdict
of act proven but not criminally responsible in deciding a verdict.
30 Effect of finding of act proven but not criminally responsible because of mental
health impairment or cognitive impairment
A jury must return a special verdict of act proven but not criminally responsible if the
jury is satisfied that the defence of mental health impairment or cognitive impairment
has been established.
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Part 3 Defence of mental health impairment or cognitive impairment
31 Special verdict where defendant and prosecutor agree on impairment
The court may enter a special verdict of act proven but not criminally responsible at
any time in the proceedings (including before the jury is empanelled) if--
(a) the defendant and the prosecutor agree that the proposed evidence in the
proceedings establishes a defence of mental health impairment or cognitive
impairment, and
(b) the defendant is represented by an Australian legal practitioner, and
(c) the court, after considering that evidence, is satisfied that the defence is so
established.
32 Special verdict not available for alternative offence
The fact that a court enters a special verdict of act proven but not criminally
responsible in respect of an offence does not result in a requirement for the court to
also enter a special verdict in respect of an offence available as an alternative to the
offence.
33 Effect of special verdict
(1) On the return of a special verdict of act proven but not criminally responsible, the
court may make one or more of the following orders--
(a) an order that the defendant be remanded in custody until a further order is
made under this section,
(b) an order that the defendant be detained in the place and manner that the court
thinks fit until released by due process of law,
(c) an order for the unconditional or conditional release of the defendant from
custody,
(d) other orders that the court thinks appropriate.
(2) Before making an order for the release of a defendant, the court may request a report
by a forensic psychiatrist or other person of a class prescribed by the regulations, who
is not currently involved in treating the defendant, as to the condition of the defendant
and whether the release of the defendant is likely to seriously endanger the safety of
the defendant or any member of the public.
(3) The court must not make an order for the release of a defendant unless it is satisfied,
on the balance of probabilities, that the safety of the defendant or any member of the
public will not be seriously endangered by the defendant's release.
Note. A person for whom a special verdict of act proven but not criminally responsible is
entered is a forensic patient unless unconditionally released and is to be dealt with under Part
5.
34 Referral of defendant to Tribunal
The court must refer the defendant to the Tribunal if a special verdict of act proven
but not criminally responsible is returned or entered and an order is not made for the
unconditional release of the defendant.
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Part 4 Fitness to stand trial
Part 4 Fitness to stand trial
Division 1 Preliminary
35 Application of Part
This Part applies to criminal proceedings in the Supreme Court (including criminal
proceedings within the summary jurisdiction of the Supreme Court) and the District
Court.
36 Fitness test
(1) For the purposes of proceedings to which this Part applies, a person is taken to be
unfit to be tried for an offence if the person, because the person has a mental health
impairment or cognitive impairment, or both, or for another reason, cannot do one or
more of the following--
(a) understand the offence the subject of the proceedings,
(b) plead to the charge,
(c) exercise the right to challenge jurors,
(d) understand generally the nature of the proceedings as an inquiry into whether
the person committed the offence with which the person is charged,
(e) follow the course of the proceedings so as to understand what is going on in a
general sense,
(f) understand the substantial effect of any evidence given against the person,
(g) make a defence or answer to the charge,
(h) instruct the person's legal representative so as to mount a defence and provide
the person's version of the facts to that legal representative and to the court if
necessary,
(i) decide what defence the person will rely on and make that decision known to
the person's legal representative and the court.
(2) This section does not limit the grounds on which a court may consider a person to be
unfit to be tried for an offence.
37 When question of unfitness may be raised
(1) The question of a defendant's unfitness to be tried for an offence is, so far as
practicable, to be raised before the defendant is arraigned on a charge in respect of
the offence but may be raised at any time during the course of the hearing of the
proceedings in respect of the offence.
(2) The question of a defendant's unfitness to be tried for an offence may be raised on
more than one occasion in the same proceedings.
38 Question of unfitness to be determined on balance of probabilities
The question of a defendant's unfitness to be tried for an offence is to be determined
on the balance of probabilities.
39 Court and other persons may raise question of unfitness
The court, the defendant or the prosecutor may raise the question of a defendant's
unfitness to be tried for an offence.
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Division 2 Procedure when question of unfitness to be tried raised
40 Procedure where question of unfitness raised before arraignment
(1) If the question of a defendant's unfitness to be tried is raised before the defendant is
arraigned on a charge in respect of the offence, the court must determine whether an
inquiry should be conducted before the hearing of the proceedings in respect of the
offence.
(2) The court may, at any time before an inquiry is commenced, determine that there is
no longer a need for the inquiry to be held.
41 Procedure where question of unfitness raised after arraignment
If the question of a defendant's unfitness to be tried is raised after the person is
arraigned on a charge in respect of the offence, the court must hear any submissions
relating to holding an inquiry in the absence of a jury which has been constituted for
the purposes of the proceedings relating to the offence.
42 When an inquiry is required or may not be held
(1) The court must conduct an inquiry to determine whether a defendant is unfit to be
tried for an offence if--
(a) the court determines that an inquiry should be conducted before the defendant
is arraigned on a charge in respect of the offence and does not subsequently
determine that the inquiry is not needed, or
(b) the question of the defendant's unfitness to be tried is raised after the
defendant is arraigned on a charge in respect of the offence.
(2) The inquiry is to be held as soon as practicable after the court makes the
determination or the question is raised after arraignment.
(3) Despite subsection (1), the court is not required to hold an inquiry unless it appears
to the court that the question of the defendant's unfitness to be tried for the offence
has been raised in good faith.
(4) Despite subsection (1), the court may determine not to hold an inquiry, dismiss the
charge and order that the defendant be released if it is of the opinion, having regard
to any of the following, that it is inappropriate to inflict any punishment--
(a) the trivial nature of the charge or offence,
(b) the nature of the defendant's mental health impairment or cognitive
impairment,
(c) any other matter the court thinks proper to consider.
43 Actions pending inquiry
The court may do one or more of the following before holding an inquiry--
(a) adjourn the proceedings,
(b) grant the defendant bail in accordance with the Bail Act 2013,
(c) order the defendant to be remanded in custody for a period not exceeding 28
days,
(d) order the defendant to undergo a psychiatric examination or other
examination,
(e) order that a psychiatric report or other report relating to the defendant be
obtained,
(f) discharge a jury constituted for the purpose of the proceedings,
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Part 4 Fitness to stand trial
(g) make other orders the court thinks appropriate.
44 Inquiry procedures
(1) The question of a defendant's unfitness to be tried for an offence is to be determined
by the judge alone.
(2) At an inquiry, the defendant is to be represented by an Australian legal practitioner,
unless the court otherwise allows.
(3) An inquiry is not to be conducted in an adversarial manner.
(4) The onus of proof of the question of a defendant's unfitness to be tried for an offence
does not rest on any particular party to the proceedings.
(5) In addition to any other matter the court may consider in determining whether the
defendant is unfit to be tried for an offence, the court is to consider the following--
(a) whether the trial process can be modified, or assistance provided, to facilitate
the defendant's understanding and effective participation in the trial,
(b) the likely length and complexity of the trial,
(c) whether the defendant is represented by an Australian legal practitioner, or can
obtain representation by an Australian legal practitioner.
Note. The test for determining whether or not a person is unfit to be tried for an offence is set
out in section 36.
(6) A determination by the judge must include the principles of law applied by the judge
and the findings of fact on which the judge relied.
45 Presumptions as to findings about unfitness
It is presumed--
(a) that a person who has, in accordance with this Part or on a review under Part
5, been found to be unfit to be tried for an offence continues to be unfit to be
tried for the offence until the contrary is, on the balance of probabilities,
determined to be the case, and
(b) that a person who has, in accordance with this Part or on a review under Part
5, been found fit to be tried for an offence continues to be fit to be tried for the
offence until the contrary is, on the balance of probabilities, determined to be
the case.
46 Finding after inquiry that defendant is fit to be tried
If a defendant is found fit to be tried following an inquiry, the proceedings brought
against the person in respect of the offence are to recommence or to continue in
accordance with the appropriate criminal procedures.
47 Finding after inquiry that defendant is unfit to be tried
(1) If a defendant is found unfit to be tried for an offence following an inquiry, the court
must also determine whether, on the balance of probabilities, during the period of 12
months after the finding of unfitness, the defendant--
(a) may become fit to be tried for the offence, or
(b) will not become fit to be tried for the offence.
(2) The court may do one or more of the following after a finding that a defendant is unfit
to be tried for an offence--
(a) make an order discharging a jury constituted for the purpose of the
proceedings,
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Part 4 Fitness to stand trial
(b) adjourn the proceedings,
(c) grant the defendant bail in accordance with the Bail Act 2013,
(d) make an order remanding the defendant in custody,
(e) make other orders that the court thinks appropriate.
48 Finding after inquiry that defendant will not become fit to be tried within 12 months
(1) If the court determines that a defendant will not, during the period of 12 months after
a finding by a court that the person is unfit to be tried for an offence, become fit to
be tried for the offence, the defendant is to be dealt with under Division 3.
(2) This section does not apply if the court is required to order the release of the
defendant because of advice under section 53 that further proceedings will not be
taken against the defendant in respect of the offence.
49 Tribunal review and court orders after finding that defendant may be fit to be tried
within 12 months
(1) The court must refer the defendant to the Tribunal for review if the court determines
that the defendant is unfit to be tried for an offence and may become fit to be tried
for the offence during the period of 12 months after the finding.
(2) The court may grant the defendant bail in accordance with the Bail Act 2013 for a
period not exceeding 12 months on being notified of a determination by the Tribunal
under section 80 that the defendant has become fit to be tried for the offence.
(3) As soon as practicable after an order is made or bail is granted under this section, the
registrar of the court is to notify the Tribunal of the terms of the order or the grant of
bail.
50 Finding by Tribunal that defendant is fit to be tried
(1) If the court is notified by the Tribunal following a review that a defendant has
become fit to be tried for an offence, the proceedings brought against the defendant
in respect of the offence are to recommence or to continue in accordance with the
appropriate criminal procedures.
(2) A court is not to hold a further inquiry into the fitness of a defendant to be tried for
an offence merely because the Tribunal notifies the court that the defendant has
become fit to be tried for an offence.
(3) Subsection (1) does not apply if the court is required to order the release of the
defendant because of advice under section 53 that further proceedings will not be
taken against the defendant in respect of the offence.
51 Finding by Tribunal that defendant will not become fit to be tried within 12 months
(1) If the court is notified by the Tribunal following a review that a defendant has not and
will not, during the period of 12 months after a finding by a court that the defendant
is unfit to be tried for an offence, become fit to be tried for the offence, the defendant
is to be dealt with under Division 3.
(2) This section does not apply if the court is required to order the release of the
defendant because of advice under section 53 that further proceedings will not be
taken against the defendant in respect of the offence.
52 Committal proceedings following finding of fit to be tried
(1) This section applies to a defendant who was committed for trial for an offence under
Division 7 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986.
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(2) The court may, on the application of the defendant or on its own motion, make an
order remitting the matter to a Magistrate for the holding of a case conference under
Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, if the
defendant has, following an inquiry, been found fit to be tried for an offence.
(3) The court must make the order on the application of the defendant unless it is
satisfied that it is not in the interests of justice to do so or that the offence is not an
offence in relation to which a case conference is required to be held under that
Division.
(4) The court may, on its own motion, make an order remitting the matter to a Magistrate
for the holding of a case conference under Division 5 of Part 2 of Chapter 3 of the
Criminal Procedure Act 1986 at any time, if it is satisfied that the question of the
defendant's unfitness to be tried for an offence is not going to be raised in
proceedings for the offence.
(5) If a matter is remitted to a Magistrate, the matter is to be dealt with as if the defendant
had not been committed for trial and the proceedings are taken to be a continuation
of the original committal proceedings.
(6) If no application is made or the matter is not remitted to a Magistrate, the matter is to
be dealt with in accordance with section 50.
53 Advice as to whether further proceedings are to be taken
(1) This section applies if--
(a) the court determines that a defendant will not, during the period of 12 months
after a finding by a court that the person is unfit to be tried for an offence,
become fit to be tried for an offence, or
(b) the Tribunal determines that a defendant has not become fit to be tried for an
offence and will not become fit to be tried for an offence during the period of
12 months after a finding by a court that the person is unfit to be tried for an
offence, or
(c) the Tribunal determines that a defendant or a forensic patient has become fit
to be tried for an offence after a finding by a court that the person is unfit to be
tried for an offence or a special hearing has been held for an offence.
(2) The court must obtain advice from the Director of Public Prosecutions as to whether
or not further proceedings will be taken by the Director in respect of the offence.
(3) The court must order the release of the defendant if the Director of Public
Prosecutions advises that further proceedings will not be taken by the Director in
respect of the offence.
Note. This does not prevent the admission of the defendant as a voluntary or an involuntary
patient under the Mental Health Act 2007.
(4) The Director of Public Prosecutions must notify the Minister for Police and
Emergency Services and the Minister for Health and Medical Research of a decision
by the Director that no further proceedings will be taken by the Director in respect of
the offences.
Division 3 Special hearings
54 Nature of special hearings
In this Act, a special hearing is a hearing for the purpose of ensuring, despite the
unfitness of the defendant to be tried in accordance with the normal procedures, that
the defendant is acquitted unless it can be proved to the required criminal standard of
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proof that, on the limited evidence available, the defendant committed the offence
charged, or another offence available as an alternative to the offence charged.
55 When special hearings are held
(1) A court must hold a special hearing as soon as practicable after the court or the
Tribunal determines that a defendant will not, during the period of 12 months after a
finding that the person is unfit to be tried for an offence, become fit to be tried for the
offence.
(2) This section does not apply if the court is required to order the release of the
defendant because of advice under section 53 that further proceedings will not be
taken against the defendant in respect of the offence.
Note. This does not prevent the admission of the defendant as a voluntary or an involuntary
patient under the Mental Health Act 2007.
56 Procedure for special hearings
(1) Trial procedure
A special hearing is to be conducted as nearly as possible as if it were a trial of
criminal proceedings.
(2) The court may, if it thinks it appropriate in the circumstances of the case, modify
court processes to facilitate the effective participation by the defendant in the special
hearing.
(3) Representation
At a special hearing, the defendant must, unless the court otherwise allows, be
represented by an Australian legal practitioner.
(4) The fact that the defendant has been found unfit to be tried for an offence is to be
presumed not to be an impediment to the person's representation.
(5) Plea of not guilty
The defendant is taken to have pleaded not guilty in respect of the offence charged.
(6) Defences
The defendant may raise any defence that could properly be raised if the special
hearing were an ordinary trial of criminal proceedings.
(7) Evidence and participation by defendant
The defendant is entitled to give evidence.
(8) The court may permit the defendant not to appear, or exclude the defendant from
appearing, at a special hearing if the court thinks it appropriate in the circumstances
and the defendant or the defendant's Australian legal practitioner agrees.
(9) Judge to try proceedings, unless jury election
The question of whether the defendant at a special hearing has committed an offence
charged or another offence available as an alternative is to be determined by the
judge alone unless an election to have the matter determined by a jury is made by--
(a) the defendant and the court is satisfied that the defendant sought and received
advice about the election from an Australian legal practitioner and the
defendant understood the advice, or
(b) an Australian legal practitioner representing the defendant, or
(c) the prosecutor.
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(10) Right to challenge jurors
If a jury is to be constituted, the Australian legal practitioner (if any) representing the
defendant may exercise the defendant's rights to challenge the jurors or jury.
(11) Explanation to jury
The court must explain the following matters to a jury constituted for the purposes of
a special hearing--
(a) the fact that the defendant is unfit to be tried in accordance with the normal
procedures,
(b) the meaning of unfitness to be tried,
(c) the purpose of the special hearing,
(d) the verdicts that are available to the jury,
(e) the legal and practical consequences of the verdicts.
57 Amendment of indictment
(1) The Director of Public Prosecutions may, with the leave of the court or the consent
of an Australian legal practitioner representing the defendant, amend an indictment
to which a special hearing relates.
(2) The provisions of the Criminal Procedure Act 1986 apply to the amendment of an
indictment under this section in the same way as they apply to the amendment of an
indictment in ordinary criminal proceedings, subject to any modifications that the
court considers appropriate in the circumstances.
58 Juries at special hearings
(1) An election to have a special hearing determined by a jury must be made--
(a) on a day before the day fixed for the special hearing, if the election is made by
the defendant, or
(b) at least 7 days before the day fixed for the special hearing, if the election is
made by the prosecutor.
(2) The defendant, or an Australian legal practitioner for the defendant, may
subsequently elect to have the special hearing determined by a judge instead of a jury.
(3) The Jury Act 1977 applies to the constitution of a jury, and to a jury constituted, for
a special hearing in the same way as it applies to the constitution of a jury, and to a
jury constituted, for a trial of criminal proceedings.
(4) A member of a jury otherwise constituted for the purpose of a proceeding related to
the same defendant and the same offence is not eligible to be a member of a jury
constituted for the purposes of a special hearing.
(5) Rules of court may be made with respect to elections to have a special hearing
determined by a jury.
59 Verdicts at special hearings
(1) The verdicts available at a special hearing include the following--
(a) not guilty of the offence charged,
(b) a special verdict of act proven but not criminally responsible,
(c) that on the limited evidence available, the defendant committed the offence
charged,
(d) that on the limited evidence available, the defendant committed an offence
available as an alternative to the offence charged.
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(2) A judge who determines a special hearing must include in the determination the
principles of law applied by the judge and the findings of fact on which the judge
relied.
(3) A special verdict of act proven but not criminally responsible may only be entered
under this section if the judge is satisfied that the requirements of section 28(1) and
(2) are met.
60 Verdict of not guilty
A defendant who is found not guilty of an offence at a special hearing is to be dealt
with as if the defendant had been found not guilty of the offence at an ordinary trial
of criminal proceedings.
61 Special verdict of act proven but not criminally responsible because of mental health
impairment or cognitive impairment
(1) A special verdict of act proven but not criminally responsible at a special hearing is
taken for all purposes to be a verdict reached at an ordinary trial of criminal
proceedings.
(2) Without limiting subsection (1), the court may make any order or take any action in
respect of the defendant that a court could make on reaching the same verdict under
Part 3.
62 Verdict of offence committed on limited evidence available
A verdict at a special hearing that on the limited evidence available the defendant
committed the offence charged or an offence available as an alternative to the offence
charged--
(a) constitutes a qualified finding of guilt and does not constitute a basis in law for
a conviction for the offence to which the finding relates, and
(b) is subject to appeal in the same manner as a verdict in an ordinary trial of
criminal proceedings, and
(c) is taken to be a conviction for the purpose of enabling a victim of the offence
to make a claim for compensation.
63 Penalties after finding of guilt
(1) Application of section
This section applies if a court finds at a special hearing that on the limited evidence
available the defendant committed the offence charged or an offence available as an
alternative to the offence charged.
(2) Limiting terms
If the court would have imposed a sentence of imprisonment for the offence if the
special hearing had been an ordinary trial of criminal proceedings and the person had
been fit to be tried for the offence, the court must nominate a term (a limiting term)
that is the best estimate of the sentence that the court would have imposed on the
defendant in those circumstances.
(3) Other penalties and orders
If the court determines that it would not have imposed a sentence of imprisonment,
the court may impose any other penalty or make any order it might have imposed or
made if the defendant had been found guilty of the offence in an ordinary trial of
criminal proceedings.
(4) The penalty or order is to be subject to appeal in the same manner as a penalty or
order in an ordinary trial of criminal proceedings.
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(5) Factors for consideration in determining penalty
Without limiting subsection (2) or (3), in determining a limiting term or other
penalty, the court--
(a) must take into account that, because of the defendant's mental health
impairment or cognitive impairment, or both, the person may not be able to
demonstrate mitigating factors for sentencing or make a guilty plea for the
purposes of obtaining a sentencing discount, and
(b) may apply a discount of a kind that represents part or all of the sentencing
discounts that are capable of applying to a sentence because of those factors or
a guilty plea, and
(c) must take into account periods of the defendant's custody or detention before,
during and after the special hearing that related to the offence.
(6) Notice to Tribunal where no limiting term imposed
If the court indicates that it would not have imposed a sentence of imprisonment in
respect of a defendant, the court must notify the Tribunal that a limiting term is not
to be nominated in respect of the person.
64 Commencement of limiting terms
(1) A limiting term takes effect from when it is nominated unless--
(a) the court determines it is taken to have effect from an earlier time, after taking
into account periods of the defendant's custody or detention before, during and
after the special hearing that related to the offence, or
(b) the court directs that the term commence at a later time so as to be served
consecutively with (or partly concurrently and partly consecutively with)
some other limiting term nominated for the person or sentence of
imprisonment imposed on the person.
(2) Before making a direction that the term commence at a later time, the court is to take
into account the following--
(a) a sentence of imprisonment imposed in an ordinary trial of criminal
proceedings may be subject to a non-parole period but a limiting term is not,
(b) in an ordinary trial of criminal proceedings, consecutive sentences of
imprisonment are to be imposed with regard to non-parole periods.
65 Referral to Tribunal after limiting term imposed
(1) The court must refer the defendant to the Tribunal if it nominates a limiting term for
the defendant and must notify the Tribunal of orders it makes under this section.
(2) The court may order that the defendant be detained in a mental health facility,
correctional centre, detention centre or other place pending the review of the
defendant by the Tribunal.
66 Reports about defendant
(1) The court may, following a verdict being reached at a special hearing and on its own
motion, request a report by a forensic psychiatrist or other person of a class
prescribed by the regulations, who is not currently involved in treating the defendant,
as to the condition of the defendant and whether the release of the defendant is likely
to seriously endanger the safety of the defendant or any member of the public.
(2) The court may consider the report, and any other report of an expert that is tendered
to the court for the purposes of this section, before determining what orders to make
about the defendant.
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67 Referral of defendant to Tribunal following special verdict
The court must refer the defendant to the Tribunal if there is a special verdict of act
proven but not criminally responsible at a special hearing and an order is not made
for the unconditional release of the defendant.
68 Effect of finding that offence was committed on other proceedings for the offence
(1) A verdict at a special hearing that on the limited evidence available the defendant
committed the offence charged or an offence available as an alternative to the offence
charged constitutes a bar to any other criminal proceedings for the same offence or
substantially the same offence.
(2) Despite subsection (1), criminal proceedings for the same offence or substantially the
same offence may be commenced against a defendant if--
(a) a limiting term has been nominated at the special hearing for the defendant,
and
(b) the limiting term has not expired, and
(c) the defendant has not been released from custody as an inmate or discharged
from detention as a forensic patient.
(3) Despite subsection (1), criminal proceedings for the same offence or substantially the
same offence may be commenced against a defendant if the defendant is subject to
an extension order or interim extension order.
(4) A defendant who has been released from custody under a conditional release order
or leave order made by the Tribunal is not a person who has been released from
custody for the purposes of subsection (2)(c).
(5) A court must, in sentencing a defendant found guilty in ordinary criminal
proceedings of the same offence or substantially the same offence, fully take into
account periods of the defendant's custody or detention before, during and after the
special hearing that related to the offence.
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Part 5 Forensic patients and correctional patients
Part 5 Forensic patients and correctional patients
Division 1 General principles and concepts
69 Objects
The objects of this Part are as follows--
(a) to protect the safety of members of the public,
(b) to provide for the care, treatment and control of persons subject to criminal
proceedings who have a mental health impairment or cognitive impairment,
(c) to facilitate the care, treatment and control of any of those persons in
correctional centres or detention centres through community treatment orders,
(d) to facilitate the provision of hospital care or care in the community through
community treatment orders for any of those persons who require involuntary
treatment,
(e) to give an opportunity for those persons to have access to appropriate care,
(f) to protect the safety of victims of forensic patients and acknowledge the harm
done to victims.
70 Treatment, care and detention of patients
(1) The principles set out in section 68 of the Mental Health Act 2007 apply to the
administration of this Act with respect to forensic patients and correctional patients.
(2) A forensic patient who is ordered to be detained in a mental health facility should, so
far as practicable, be detained in a mental health facility or other facility that is
appropriate to the patient's needs and appropriate having regard to the safety of the
patient and other persons.
71 Application of provisions of Mental Health Act 2007 to forensic patients and
correctional patients
The following provisions of the Mental Health Act 2007 apply with respect to
forensic patients and correctional patients--
(a) section 70 for a medical examination of a person for the purposes of this Part,
(b) sections 71-72A relating to carers,
(c) section 73 if the patient is detained in a mental health facility.
72 Forensic patients
(1) The following persons are forensic patients for the purposes of this Act--
(a) a person who is found unfit to be tried for an offence and who is detained in a
mental health facility, correctional centre, detention centre or other place,
(b) a person for whom a limiting term has been nominated after a special hearing
(including a person who is subsequently subject to an extension order or an
interim extension order) and who is detained in a mental health facility,
correctional centre, detention centre or other place or who is released from
custody subject to conditions under an order made by the Tribunal,
(c) a person who is the subject of a special verdict of act proven but not criminally
responsible and who is detained in a mental health facility, correctional centre,
detention centre or other place or who is released from custody subject to
conditions under an order made by a court or the Tribunal,
(d) a person who is a member of a class of persons prescribed by the regulations
for the purposes of this section.
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(2) To avoid doubt, a person is not a forensic patient if the person has been found unfit
to be tried for an offence and has been released on bail.
73 Correctional patients
A person is a correctional patient for the purposes of this Act if--
(a) the person has been transferred from a correctional centre or detention centre
to a mental health facility while--
(i) serving a sentence of imprisonment, or
(ii) on remand, or
(iii) subject to a high risk offender detention order, and
(b) the person is not a forensic patient and has not ceased to be a correctional
patient under section 104 or been classified as an involuntary patient under this
Part.
74 Role of objects and principles provisions
The provisions of sections 69 and 70 are intended to give guidance in the
administration of this Act and do not create, or confer on any person, any right or
entitlement enforceable at law.
Division 2 General provisions relating to reviews by Tribunal
75 Matters Tribunal must consider that apply to all orders
On a review or other proceedings under this Act relating to a person, the Tribunal
must have regard to the following matters when determining what order to make
about the person--
(a) whether the person has a mental health impairment or cognitive impairment,
(b) whether 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 the protection of others from serious harm,
(c) the continuing condition of the person, including any likely deterioration in the
person's condition and the likely effects of that deterioration.
76 Unlawful absence from mental health facility or other place
The Tribunal is not required to review the case of a person during a period in which
the person is unlawfully absent from a mental health facility or other place in which
the person has been detained under this Act.
77 Extension of mandatory review period
(1) The period within which a particular review under this Division must be held may,
on the motion of the Tribunal or on the application of the forensic patient or
correctional patient or a designated carer or the principal care provider of the patient,
be extended by the Tribunal to a maximum of 12 months.
(2) The Tribunal may grant an application to extend the review period if it is satisfied
that--
(a) there are reasonable grounds to grant the application, or
(b) an earlier review is not required because--
(i) there has been no change since the last review in the patient's condition
and there is no apparent need for any change in existing orders relating
to the patient, or
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(ii) there has been no change since the last review in the patient's condition
and an earlier review may be detrimental to the condition of the patient.
(3) This section does not apply to the first review of a forensic patient or to a review of
a forensic patient who is subject to an extension order.
Division 3 Reviews of forensic patients by Tribunal
78 Mandatory reviews of forensic patients
The Tribunal must carry out reviews of forensic patients at the following times--
(a) as soon as practicable after a limiting term is nominated by a court for a
forensic patient,
(b) as soon as practicable after a court finds at an inquiry that a defendant is unfit
to be tried for an offence and may become fit to be tried for an offence within
12 months and the proceedings are adjourned,
(c) in the case of a person for whom a court enters a special verdict of act proven
but not criminally responsible, as soon as practicable after the court enters the
verdict,
(d) at intervals of 6 months during the period that a person is a forensic patient,
(e) if a forensic patient is detained in a correctional centre or detention centre and
is subject to a community treatment order, no later than 3 months after the
community treatment order is made and at least once every 6 months during
the term of the order,
(f) as soon as practicable after being requested to carry out a review of a forensic
patient by the Minister for Health and Medical Research, the Attorney General
and Minister for the Prevention of Domestic Violence, the Minister for
Counter Terrorism and Corrections or the Secretary,
(g) as soon as practicable after being requested to carry out a review of a forensic
patient by the medical superintendent of the mental health facility in which the
patient is detained.
79 Tribunal may review patient at any time
The Tribunal may carry out a review of a forensic patient at any time.
80 Reviews of persons found unfit to be tried for an offence
(1) On a review of a person who has been found unfit to be tried for an offence, the
Tribunal must determine whether the person has become fit to be tried for an offence.
(2) The Tribunal must notify the court that made the finding of unfitness, the Director of
Public Prosecutions and the person's legal representative if, on a review, it is of the
opinion that the person reviewed--
(a) has become fit to be tried for an offence, or
(b) has not become fit to be tried for an offence and will not, during the period of
12 months after the finding of unfitness by the court, become fit to be tried for
the offence.
(3) The Tribunal must make a determination as to the fitness of a person to be tried for
an offence on the balance of probabilities.
Note. The presumptions in section 45 apply to the person.
81 Orders that may be made on reviews generally
On a review of a forensic patient under this Act, the Tribunal may make an order as
to--
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(a) the patient's detention, care or treatment in a mental health facility,
correctional centre, detention centre or other place, or
(b) the patient's release (either unconditionally or subject to conditions).
82 Orders for transfer of forensic patients
On a review under this Part, the Tribunal may make an order for the transfer of a
forensic patient to a mental health facility, correctional centre, detention centre or
other place.
83 Orders for release of forensic patients
(1) An order for release of a forensic patient under this Division may be made despite
any other provision of this Act or any order of a court under this Act.
(2) Despite subsection (1), the Tribunal must not order the release of a forensic patient
if the patient is a person who has been remanded in custody pending the person's
return to court but may make a recommendation to the court as to the person's
release.
(3) Despite subsection (1), the Tribunal must not make an order as to the unconditional
release of a forensic patient who is subject to an extension order or interim extension
order but may make a recommendation to the Supreme Court as to the variation or
revocation of the extension order.
84 Matters that Tribunal must consider when determining whether to release a forensic
patient
(1) General matters for consideration
The Tribunal must not make an order for the release (including the conditional
release) of a forensic patient unless it has considered the following matters--
(a) whether or not other care of a less restrictive kind, that is consistent with safe
and effective care, is appropriate and reasonably available to the patient or that
the patient does not require care,
(b) a report by a forensic psychiatrist or other person of a class prescribed by the
regulations, who is not currently involved in treating the patient, as to the
condition of the patient and whether the safety of the patient or any member of
the public will be seriously endangered by the patient's release,
(c) in the case of the proposed release of a forensic patient subject to a limiting
term, whether or not the patient has spent sufficient time in custody.
Note. The Tribunal is also required to consider the matters set out in section 75.
(2) Tribunal must be satisfied patient or public safety not seriously endangered
The Tribunal must not make an order for the release (including the conditional
release) of a forensic patient unless it is satisfied that the safety of the patient or any
member of the public will not be seriously endangered by the patient's release.
85 Conditions that may be imposed by Tribunal on release of forensic patients
(1) The Tribunal may impose conditions relating to the following matters on orders for
release made by it in relation to a forensic patient--
(a) the appointment of a case manager, psychiatrist or other health care
professional to assist in the care and treatment of the patient,
(b) the care, treatment and review of the patient by persons referred to in
paragraph (a), including home visits to the patient,
(c) medication,
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(d) accommodation and living conditions,
(e) enrolment and participation in educational, training, rehabilitation,
recreational, therapeutic or other programs,
(f) the use or non-use of alcohol and other drugs,
(g) drug testing and other medical tests,
(h) agreements as to conduct,
(i) association or non-association with victims or members of victims' families,
(j) prohibitions or restrictions on frequenting or visiting places,
(k) overseas or interstate travel,
(l) requirements for the purposes of monitoring (including by electronic means)
compliance with the conditions of release.
(2) This section does not limit the matters in relation to which a condition may be
imposed.
Division 4 Transfer of correctional patients, forensic patients and other
persons in custody
86 Transfer from correctional centre or detention centre by Secretary
(1) The Secretary may, by order in writing, direct that a person imprisoned in, or a
forensic patient detained in, a correctional centre or detention centre be transferred
to a mental health facility.
(2) The Secretary may make a transfer order on the basis of 2 certificates about the
person's condition issued by 2 medical practitioners, 1 of whom is a psychiatrist.
(3) The certificates are to be in the form set out in Schedule 1.
(4) A transfer order may be made without the person's consent if it appears to the
Secretary, on the basis of the certificates, that the person is a mentally ill person.
(5) A transfer order may be made with the person's consent if it appears to the Secretary,
on the basis of the certificates, that the person has a mental health impairment or
other condition for which treatment is available in a mental health facility.
(6) The Secretary may revoke a transfer order.
(7) The Secretary must notify the Tribunal in writing if the Secretary makes or revokes
a transfer order.
87 Transfer back to correctional centre or detention centre
(1) This section applies to a person transferred from a correctional centre or detention
centre to a mental health facility under a provision of this Division.
(2) The person must be transferred back to the correctional centre or detention centre
within 7 days unless the Secretary is of the opinion that--
(a) the person is a mentally ill person or has a mental health impairment or other
condition for which treatment is available in a mental health facility, and
(b) other care of an appropriate kind would not be reasonably available to the
person in the correctional centre or detention centre.
(3) The person may be transferred back to the correctional centre or detention centre at
any time if the Secretary is of the opinion that--
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(a) the person has ceased to be a mentally ill person or to have a mental health
impairment or other condition for which treatment is available in a mental
health facility, or
(b) other care of an appropriate kind would be reasonably available to the person
in a correctional centre or detention centre.
(4) Nothing in this section affects the powers of the Tribunal in respect of a person
transferred to a mental health facility from a correctional centre or detention centre.
88 Requests for transfer to correctional centre or detention centre
(1) A correctional patient or forensic patient who is detained in a mental health facility
may, at any time, request the Tribunal to make an order that the patient be transferred
to a correctional centre or detention centre.
(2) The Tribunal, after considering the request, may make the order requested by the
patient or may refuse to make that order.
(3) The Tribunal must make the order if it is satisfied that the person is not a mentally ill
person.
89 Reviews by Tribunal of persons awaiting transfer to mental health facility
(1) The Tribunal must conduct a limited review of the case of a person who is subject to
an order for transfer to a mental health facility under this Division but who is not
transferred within the period prescribed by the regulations for the purposes of this
section.
(2) The Tribunal must carry out a limited review each month until the person is
transferred to a mental health facility or the Tribunal or the Secretary revokes the
order.
(3) On a limited review, the Tribunal may make an order as to the person's detention,
care or treatment in a mental health facility or other place.
(4) For the purposes of a limited review, a report as to the person's condition and the
reason for the delay in transfer is to be provided to the Tribunal by the Secretary and
the Commissioner of Corrective Services.
Note. In the case of a person under the age of 18 years, the report is to be provided by the
Secretary of the Department of Communities and Justice (see section 3(3)).
90 Reviews of patients transferred under this Division
(1) The Tribunal must carry out a review of a correctional patient or forensic patient as
soon as practicable after the patient is transferred to a mental health facility under this
Division.
(2) If a person is transferred under this Division from a correctional centre to a mental
health facility, the Tribunal may, at any time, make an order that the person be
transferred to a correctional centre.
Division 5 Reviews of correctional patients
91 Mandatory reviews of correctional patients
The Tribunal must carry out reviews of correctional patients at the following times--
(a) as soon as practicable after a correctional patient is transferred to a mental
health facility under this Act,
(b) at intervals of 6 months during the period that a person is a correctional patient,
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(c) as soon as practicable after being requested to carry out a review of a
correctional patient by the Minister for Health and Medical Research, the
Attorney General and Minister for the Prevention of Domestic Violence, the
Minister for Counter Terrorism and Corrections or the Secretary,
(d) as soon as practicable after being requested to carry out a review of a
correctional patient by the medical superintendent of the mental health facility
in which the patient is detained.
92 Periodic and other reviews of correctional patients
(1) On the first review of a correctional patient after the patient is transferred to a mental
health facility, the Tribunal is to determine whether the patient is a mentally ill person
who should continue to be detained in a mental health facility or has a condition for
which treatment is available in a mental health facility.
(2) On any review of a correctional patient, the Tribunal may make an order as to the
patient's continued detention, care or treatment in, or transfer to, a mental health
facility, correctional centre, detention centre or other place.
93 Tribunal may review patient at any time
The Tribunal may carry out a review of a correctional patient at any time.
Division 6 Leave of absence
94 Tribunal may grant leave for forensic patients
(1) The Tribunal may make an order allowing a forensic patient to be absent from a
mental health facility, correctional centre, detention centre or other place for a period
and subject to any terms and conditions that the Tribunal thinks fit.
(2) An order may be made on the application of the patient or on the motion of the
Tribunal.
(3) The Tribunal must not make an order allowing a forensic patient to be absent from a
mental health facility, correctional centre, detention centre or other place unless it is
satisfied, on the evidence available to it, that the safety of the patient, a registered
victim of the patient or any other member of the public will not be seriously
endangered if the leave of absence is granted.
(4) The Tribunal may impose any condition on an order granting leave of absence that it
may impose on an order releasing a forensic patient.
(5) This section does not prevent leave of absence being granted to a forensic patient
detained in a correctional centre or detention centre under any other Act or law.
(6) This section has effect despite the Crimes (Administration of Sentences) Act 1999.
95 Commissioner of Corrective Services may grant leave for correctional patients
(1) The Commissioner of Corrective Services may allow a correctional patient to be
absent from a mental health facility for the period and subject to any terms and
conditions that the Commissioner of Corrective Services thinks fit.
(2) The Tribunal may, on a review of a correctional patient, make recommendations to
the Commissioner of Corrective Services as to the granting of leave to the patient.
(3) In determining whether to grant leave to a correctional patient to be absent from a
mental health facility, the Commissioner of Corrective Services must have regard to
recommendations made by the Tribunal on a review of the patient as to the granting
of leave.
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96 Leave for forensic patients and correctional patients in emergencies or special
circumstances
(1) The Secretary may allow a forensic patient or a correctional patient to be absent from
a mental health facility for the period, and subject to any conditions that the Secretary
thinks fit, in circumstances constituting an emergency or in other special
circumstances as the Secretary thinks fit.
(2) The Secretary must not allow a patient to be absent from a mental health facility
(otherwise than in a medical emergency) under this section unless the Secretary is
satisfied, on the evidence available to the Secretary, that the safety of the patient or
any member of the public will not be seriously endangered if the leave of absence is
granted.
(3) The Secretary must not allow a patient to be absent from a mental health facility if,
in the same or similar circumstances, an order allowing the patient to be absent from
a mental health facility has been refused by--
(a) for a forensic patient--the Tribunal, or
(b) for a correctional patient--the Commissioner of Corrective Services.
(4) This section has effect despite the Crimes (Administration of Sentences) Act 1999.
Note. See section 117 for security conditions relating to correctional patients who are absent
on leave from mental health facilities.
97 Appeals against decisions of Secretary
(1) A forensic patient or a correctional patient may appeal to the Tribunal against a
failure or refusal by the Secretary to grant the patient leave of absence under this Part.
(2) An appeal may be made orally or in writing and is to be made in accordance with the
regulations.
(3) An oral appeal is to be recorded in accordance with the regulations.
(4) The Secretary must provide the Tribunal with a report about the patient, including the
Secretary's reasons for refusing or failing to grant leave of absence.
(5) For the purpose of determining an appeal, the Tribunal has and may exercise the
functions of the Secretary with respect to the granting of leave and may make an
order accordingly.
(6) In addition, the Tribunal may determine that no further right of appeal may be
exercised under this section before the date on which the person is next reviewed by
the Tribunal under this Act, if it thinks it appropriate to do so.
98 Grants of leave do not affect sentences or limiting terms
The grant of leave of absence to a forensic patient or a correctional patient under this
Part does not affect the operation of a limiting term or sentence of imprisonment
imposed in respect of the patient concerned.
Division 7 Community treatment orders
99 Community treatment orders
(1) On a review under this Part or at any other time, the Tribunal may make a community
treatment order in relation to--
(a) a forensic patient, or
(b) a correctional patient ordered to be transferred to a correctional centre or
detention centre, or
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(c) a person who is subject to an order for transfer to a mental health facility from
a correctional centre or detention centre but who has not been transferred, or
(d) an inmate in a correctional centre or a detention centre.
(2) Part 3 of Chapter 3 of the Mental Health Act 2007 applies to the making of a
community treatment order under this section, subject to any modifications
prescribed by the regulations under that Act or under this Act.
(3) Without limiting subsection (2), the regulations may modify that Part for the purpose
of consistency with the operation of the Crimes (Administration of Sentences) Act
1999 and regulations under that Act with respect to correctional patients, inmates of
correctional centres or detention centres and persons subject to parole.
(4) A community treatment order made in respect of a person detained in a correctional
centre, detention centre or other place continues in force if the person is released from
the centre or place, subject to the terms of the order or the variation or revocation of
the order.
(5) A community treatment order may be made in respect of a forensic patient who is to
be released unconditionally in accordance with an order of the Tribunal.
(6) On and from the release of the forensic patient unconditionally in accordance with
the order of the Tribunal, the community treatment order is taken to have been made
under the Mental Health Act 2007.
100 Reviews of persons in custody who are subject to community treatment orders
The Tribunal must carry out reviews of persons (other than forensic patients) who are
subject to community treatment orders and who are detained in correctional centres
or detention centres no later than 3 months after the community treatment orders are
made and at least once every 6 months during the term of each order.
Division 8 Termination of status as patient and other status changes
101 Termination of status as forensic patient
A person ceases to be a forensic patient if one of the following circumstances
occurs--
(a) the person is released unconditionally in accordance with an order made by the
Tribunal or by a court,
(b) the person is released conditionally in accordance with an order made by the
Tribunal and the conditions expire,
(c) the person has been found unfit to be tried for an offence and is found not
guilty of an offence at a special hearing,
(d) the person has been found unfit to be tried for an offence and is found guilty
at a special hearing and no limiting term is imposed on the person,
(e) a limiting term imposed on the person expires and no extension order or
interim extension order is made against the person,
(f) an extension order or interim extension order made against the person expires
and no further order is made,
(g) the person was found unfit to be tried for an offence and the person is later
found to be fit to be tried for the offence,
(h) the relevant charges against the person are dismissed or the Director of Public
Prosecutions notifies the court that the person will not be further proceeded
with for the relevant charges,
(i) the Tribunal classifies the patient as an involuntary patient,
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(j) in any other circumstances prescribed by the regulations for the purposes of
this section.
102 Effect of unlawful absence on limiting term
(1) For the purposes of calculating whether a limiting term has expired, a period during
which the person on whom the term was imposed was unlawfully absent from a
mental health facility or other place in which the person was detained under this Act
is not to be counted as part of the limiting term.
(2) In this section, a person is unlawfully absent from a mental health facility or other
place during any period commencing when an order is made for the apprehension of
the person under section 109 and ending when the person is apprehended and
detained under the order.
(3) The Tribunal must notify a person who is apprehended under an order made under
section 109 or 111 in writing of the effect of this section and the new expiry date of
the person's limiting term, if the Tribunal is notified that the person has been so
apprehended.
103 Extension of status as forensic patient
A person's status as a forensic patient may be extended in accordance with Part 6.
104 Termination of status as correctional patient
A correctional patient ceases to be a correctional patient if one of the following
circumstances occurs--
(a) the person is transferred to a correctional centre, detention centre or other
place (other than another mental health facility) from the mental health
facility,
(b) a sentence of imprisonment expires and no high risk offender detention order
is made against the person,
(c) a high risk offender detention order made against the person expires and no
further high risk offender detention order is made,
(d) the person is ordered to be released on parole,
(e) the person is otherwise released on the order of a court,
(f) the relevant charges against the person are dismissed,
(g) the Director of Public Prosecutions notifies the court or the Tribunal that the
person will not be further proceeded against in respect of the relevant charges.
105 Classification of patients as involuntary patients
(1) The Tribunal may, on a review under this Part, classify a patient detained in a mental
health facility, correctional centre, detention centre or other place as an involuntary
patient if--
(a) the patient is a forensic patient detained following a special hearing and is to
cease to be a forensic patient within 6 months after the date of the review, or
(b) the patient is a correctional patient who is to cease to be a correctional patient
within 6 months after the date of the review.
(2) The Tribunal may order that a patient classified as an involuntary patient be
transferred from a correctional centre or detention centre to a mental health facility.
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106 Limits on classification of forensic patients
(1) The Tribunal may only classify a forensic patient who is subject to a limiting term or
an extension order as an involuntary patient if--
(a) each Minister entitled to apply for an extension of the patient's forensic status
has notified the Tribunal that an application for an extension is not proposed
to be made, or
(b) the Supreme Court has dismissed an application under Part 6 for extension of
the patient's forensic status.
(2) The Tribunal may ask a Minister to provide advice about whether the Minister
proposes to make an application under Part 6.
(3) A Minister entitled to make an application under Part 6 for extension of a patient's
forensic status is to notify the Tribunal as soon as practicable of a decision to apply
for, or not to apply for, the extension.
107 Release from detention on ceasing to be a forensic patient or correctional patient
(1) A person who ceases to be a forensic patient must be discharged from the mental
health facility, correctional centre, detention centre or other place in which the person
is detained.
(2) A person who ceases to be a correctional patient must be discharged from the mental
health facility in which the person is detained.
(3) A person must not be discharged from a mental health facility under this section if
the person is classified as an involuntary patient.
(4) A person who is detained in a correctional centre or detention centre must not be
discharged from the centre under this section if--
(a) the person has ceased to be a forensic patient because the person has been
found fit to be tried for an offence, or
(b) the person is required to continue to be detained for any other lawful reason.
108 Person who ceases to be forensic patient or correctional patient may become
voluntary patient
Nothing in this Part prevents the application of Chapter 3 of the Mental Health Act
2007 to a person who ceases to be a forensic patient or a correctional patient or the
person from remaining in a mental health facility as a voluntary patient.
Division 9 Enforcement
109 Breach of orders for release
(1) The President of the Tribunal may make an order for the apprehension of a person if
it appears to the President that--
(a) the person has breached a condition of an order for the person's conditional
release under this Part, or
(b) the person has committed a breach of an order releasing the person from
custody made by a court after a special verdict of act proven but not criminally
responsible, or
(c) the person has breached a condition of leave of absence granted under this
Part, or
(d) the person has been granted conditional release or leave of absence and has
suffered a deterioration of mental condition and is at risk of causing serious
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harm to himself or herself or to any member of the public because of the
person's condition.
(2) An apprehension order authorises the detention of the person at the mental health
facility, correctional centre, detention centre or other place specified in the order.
(3) The President of the Tribunal may, pending a review of a person who is apprehended,
make one or more of the following orders--
(a) an order that the person continue to be given treatment in accordance with the
order for the person's conditional release,
(b) an order that the person be assessed by a medical practitioner,
(c) an order that the person be detained in a mental health facility for assessment
and treatment.
(4) The Tribunal must review the case of a person apprehended under this section and
may--
(a) order the person's temporary detention, care or treatment in a mental health
facility, correctional centre, detention centre or other place in the manner,
specified in the order, or
(b) confirm the person's release or leave, either unconditionally or subject to
conditions, or
(c) revoke the order for release and order the person's detention, care or treatment
in a mental health facility, correctional centre, detention centre or other place
in the manner, specified in the order.
Note. The Tribunal may also make a community treatment order under Division 7.
110 Execution of apprehension orders
(1) A police officer to whose notice an apprehension order under this Division is brought
must--
(a) apprehend and take or assist in taking the person to the mental health facility,
correctional centre, detention centre or other place specified in the order, or
(b) cause or make arrangements for some other police officer to do so.
(2) A police officer may--
(a) enter premises to apprehend the person, and
(b) apprehend the person without a warrant, and
(c) exercise any of the powers conferred on a person who is authorised under
section 81 of the Mental Health Act 2007 to take a person to a mental health
facility.
111 Apprehension of persons not permitted to be absent from mental health facility
(1) Without limiting section 109, the authorised medical officer of a mental health
facility may apprehend a person, or direct a person to be apprehended, if the person
fails to return to the facility at the end of a period of leave of absence granted under
this Part or fails to comply with a condition to which that grant of leave was subject.
(2) The person may be apprehended by any of the following persons--
(a) the authorised medical officer or any other suitably qualified person employed
at the mental health facility,
(b) a police officer,
(c) a person authorised by the Secretary or the authorised medical officer,
(d) a person assisting a person referred to in paragraph (a), (b) or (c).
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(3) The authorised medical officer may request that a police officer apprehend, or assist
in apprehending, a person under this section if the authorised medical officer is of the
opinion that there are serious concerns relating to the safety of the person or other
persons if the person is taken to the mental health facility without the assistance of a
police officer.
(4) A police officer to whose notice the request is brought may--
(a) apprehend and take or assist in taking the person to the mental health facility,
or
(b) cause or make arrangements for some other police officer to do so.
(5) A police officer may enter premises to apprehend a person under this section, and
may apprehend the person, without a warrant and may exercise any of the powers
conferred on a person who is authorised under section 81 of the Mental Health Act
2007 to take a person to a mental health facility.
(6) A person who is apprehended under this section is to be conveyed to and detained at
the mental health facility at which the person was detained immediately before the
period of leave commenced.
(7) The authorised medical officer must notify the Tribunal if--
(a) the authorised medical officer directs a person to be apprehended under this
section, or
(b) a person is apprehended under this section.
112 Apprehended person may seek reconsideration by Tribunal
(1) A person who is apprehended under this Division may request the Tribunal to
investigate the evidence on which the order for the person's apprehension was made
and may adduce other evidence for the consideration of the Tribunal.
(2) On a reconsideration under this section, the Tribunal may make any order it thinks
fit concerning the detention or release of the person.
113 Aiding or permitting escape
(1) A person must not release or attempt to release a person who is being conveyed to or
detained in a mental health facility or other place under this Act.
(2) A medical superintendent or any other person employed in a mental health facility
must not--
(a) intentionally or negligently permit a person detained in the facility under this
Act to escape from the facility, or
(b) aid a person so detained to escape or attempt to escape from a mental health
facility.
Maximum penalty--
(a) on conviction on indictment--imprisonment for 3 years, or
(b) on summary conviction--imprisonment for 1 year or 10 penalty units, or both.
114 Issue of warrants for apprehension of persons outside State and other persons
A Magistrate or an authorised officer within the meaning of the Criminal Procedure
Act 1986 may issue a warrant for the apprehension of a person if a credible person,
on oath before the Magistrate or officer, shows reasonable cause to suspect that the
person is a forensic patient or a correctional patient--
(a) who has escaped from a mental health facility and is outside the State, or
(b) is the subject of an apprehension order under this Division.
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Division 10 Miscellaneous
115 Transfer and transport of patients
(1) The Secretary may, by order in writing, order the transfer of a forensic patient or
correctional patient detained in a mental health facility to another mental health
facility.
(2) The order is sufficient authority for the transfer.
(3) A person may be transferred to and detained in a mental health facility, correctional
centre, detention centre or other place in accordance with an order under this Act.
(4) A forensic patient or correctional patient may be transported to or from a mental
health facility, correctional centre, detention centre or other place if it is necessary or
convenient to do so for the administration of this Act or the Mental Health Act 2007.
(5) The transport is to be subject to any security conditions that the Secretary considers
necessary.
(6) A forensic patient, a correctional patient or a person the subject of a transfer order
under section 86 who has not yet been transferred may be taken to or from a mental
health facility by a person referred to in section 81(1) of the Mental Health Act 2007,
a person employed by the Department of Communities and Justice or any other
person prescribed by the regulations.
(7) Section 81 of that Act, and any regulations made under that section, apply to or in
respect of the transport of the following persons in the same way as they apply to or
in respect of the transport of a person under that Act--
(a) a forensic patient,
(b) a correctional patient,
(c) a person the subject of a transfer order under section 86 of this Act who has
not yet been transferred to or from a mental health facility, correctional centre,
detention centre or other place under this Act.
116 Effect of detention in mental health facility on sentence and parole
(1) A period of detention of a person in a mental health facility or other place, following
a transfer under this Part from a correctional centre or detention centre, is to be
treated as if it were a period of imprisonment in a correctional centre or a detention
centre for the purposes of the person's sentence and parole.
(2) For the purposes of Part 6 of the Crimes (Administration of Sentences) Act 1999, a
forensic patient who is currently serving a sentence of imprisonment, or a
correctional patient, who is detained in a mental health facility, is taken to be serving
a full-time sentence of detention in a correctional centre or detention centre.
Note. Part 6 of that Act contains provisions permitting the granting of parole to certain persons
serving full-time sentences of detention.
(3) The detention of a person in a mental health facility or other place under this Part
does not prevent the granting of parole to the person under the Crimes
(Administration of Sentences) Act 1999.
117 Security conditions for patients
(1) A forensic patient who is detained in a mental health facility or other place (other
than a correctional centre or detention centre) or is absent in accordance with this Part
is to be subject to any security conditions that the Secretary considers necessary.
(2) A forensic patient who is detained in a correctional centre or detention centre or in a
part of a correctional centre or detention centre that is a mental health facility, or a
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correctional patient who is detained in a mental health facility or other place or is
absent in accordance with this Part, is to be subject to security conditions in
accordance with relevant legislation and with any protocol agreed between the
Secretary and the Commissioner of Corrective Services or the Secretary of the
Department of Communities and Justice (as the case requires).
(3) To avoid doubt, for the purposes of subsection (2)--
(a) a part of a correctional centre that is a mental health facility is taken to be a
correctional centre within the meaning of the Crimes (Administration of
Sentences) Act 1999 and a forensic patient or correctional patient who is
detained in that facility is taken to be an inmate within the meaning of that Act
and that Act and the regulations under that Act, apply to the patient, subject to
any modifications and to the extent specified by the regulations, and
(b) a part of a detention centre that is a mental health facility is taken to be a
detention centre within the meaning of the Children (Detention Centres) Act
1987 and a forensic patient or correctional patient who is detained in that
facility is taken to be an inmate within the meaning of that Act and that Act
and the regulations under that Act, apply to the patient, subject to any
modifications and to the extent specified by the regulations.
118 Planning for release and leave
(1) The authorised medical officer of a mental health facility must, if a person detained
in a mental health facility as a forensic patient is to be released or granted leave under
this Part, take all reasonably practicable steps to ensure that the person and any
designated carer or the principal care provider of the person are consulted in relation
to planning the person's release or leave and any subsequent treatment or other action
considered in relation to the person.
(2) In planning the release of the person and subsequent treatment or other action
considered in relation to the person, the authorised medical officer must take all
reasonably practicable steps to consult with agencies involved in providing relevant
services to the person, any designated carer or the principal care provider of the
person and any dependent children or other dependants of the person.
(3) The authorised medical officer must take all reasonably practicable steps to provide
a person who is released or given leave of absence from the mental health facility
with appropriate information as to follow-up care.
(4) The Commissioner of Corrective Services and the chief executive of Youth Justice
NSW within the Department of Communities and Justice must provide support to an
authorised medical officer for the purposes of this section.
119 Retaking of escapees
(1) A forensic patient or correctional patient who escapes from a mental health facility
or other place may be apprehended at any time by any of the following persons--
(a) the medical superintendent of the mental health facility or any other suitably
qualified person employed in the mental health facility who is authorised to do
so by the medical superintendent,
(b) a police officer,
(c) a person authorised by the Secretary or the medical superintendent,
(d) a person assisting a person referred to in paragraph (a), (b) or (c).
(2) On being apprehended, the patient is to be conveyed to and detained in the mental
health facility or other place from which the patient escaped.
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(3) This section does not affect any power of any other person to apprehend a person
under the Crimes (Administration of Sentences) Act 1999.
120 Forensic patients and correctional patients in the community may be detained and
treated under Mental Health Act 2007
Nothing in this Part limits the application of the Mental Health Act 2007 to a person
who has been granted conditional release or leave of absence under this Part.
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Part 6 Extension of status as forensic patient
Division 1 Extension orders
121 Extension orders for forensic patients
(1) The Supreme Court may, on application under Division 2, make an order for the
extension of a person's status as a forensic patient.
(2) An order made under this section is an extension order.
122 Forensic patients in respect of whom extension orders may be made
(1) A forensic patient can be made the subject of an extension order as provided for by
this Part if and only if the Supreme Court is satisfied to a high degree of probability
that--
(a) the forensic patient poses an unacceptable risk of causing serious harm to
others if the patient ceases to be a forensic patient, and
(b) the risk cannot be adequately managed by other less restrictive means.
(2) The Supreme Court is not required to determine that the risk of a person causing
serious harm to others is more likely than not in order to determine that the person
poses an unacceptable risk of causing serious harm to others.
Note. Less restrictive means of managing a risk includes, but is not limited to, a patient being
involuntarily detained or treated under the Mental Health Act 2007.
Division 2 Application for extension orders
123 Minister may apply for extension order
A Minister administering this Act may apply to the Supreme Court for an extension
order against a forensic patient.
124 Application for extension order
(1) An application for an extension order may be made in respect of a forensic patient
only if the forensic patient is subject to--
(a) a limiting term, or
(b) an existing extension order.
(2) An application in respect of a forensic patient may not be made more than 6 months
before--
(a) the end of the forensic patient's limiting term, or
(b) the expiry of the existing extension order,
as appropriate.
125 Requirements with respect to application
An application for an extension order must be supported by documentation--
(a) that addresses each of the matters referred to in section 127(2) (to the extent
relevant to the application), and
(b) that includes a report (prepared by a qualified psychiatrist, registered
psychologist or registered medical practitioner)--
(i) that assesses the risk of the forensic patient causing serious harm to
others, and
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(ii) that addresses the need for ongoing management of the patient as a
forensic patient and the reasons why the risk of the forensic patient
causing serious harm to others cannot be adequately managed by other
less restrictive means.
126 Pre-hearing procedures
(1) An application under this Division for an extension order must be served on the
forensic patient concerned within 2 business days after the application is filed in the
Supreme Court or within any further time that the Supreme Court may allow.
(2) The Minister applying for the extension order must notify the Tribunal as soon as
practicable after making the application.
(3) Subject to subsections (7)-(9), the Minister applying for the extension order must
disclose to the forensic patient the documents, reports and other information that are
relevant to the proceedings on the application (whether or not intended to be tendered
in evidence)--
(a) in the case of anything that is available when the application is made, as soon
as practicable after the application is made, and
(b) in the case of anything that subsequently becomes available, as soon as
practicable after it becomes available.
(4) A preliminary hearing into the application is to be conducted by the Supreme Court
within 28 days after the application is filed in the Supreme Court or within any
further time that the Supreme Court may allow.
(5) If, following the preliminary hearing, the Supreme Court is satisfied that the matters
alleged in the supporting documentation would, if proved, justify the making of an
extension order, the Supreme Court must make orders--
(a) appointing--
(i) 2 qualified psychiatrists, or
(ii) 2 registered psychologists, or
(iii) 2 registered medical practitioners, or
(iv) any combination of 2 persons referred to in subparagraphs (i)-(iii),
to conduct separate examinations of the forensic patient and to give reports to
the Supreme Court on the results of those examinations, and
(b) directing the forensic patient to attend those examinations.
(6) If, following the preliminary hearing, the Supreme Court is not satisfied that the
matters alleged in the supporting documentation would, if proved, justify the making
of an extension order, the Supreme Court must dismiss the application.
(7) A forensic patient in respect of whom an application for an extension order has been
made is, unless the Supreme Court otherwise determines, entitled to inspect or
otherwise have access to any medical records in the possession of any person relating
to the forensic patient.
(8) A representative of the forensic patient is entitled, at any time before or during the
proceedings on the application, to inspect or otherwise have access to any medical
records in the possession of any person relating to the forensic patient.
(9) Subject to any order or direction of the Supreme Court, in relation to an inspection
under subsection (8) of, or other access under that subsection to, any medical record
relating to a forensic patient--
(a) if a medical practitioner warns the representative of the forensic patient that it
may be harmful to communicate to the forensic patient, or any other person,
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specified information contained in those medical records, the representative is
to have full and proper regard to that warning, and
(b) the representative is not obliged to disclose to the forensic patient any
information obtained by virtue of the inspection or other access.
Division 3 Determination of applications
127 Determination of application for extension orders
(1) The Supreme Court may determine an application under this Division for an
extension order--
(a) by making the order, or
(b) by dismissing the application.
(2) In determining whether or not to make an extension order, the Supreme Court must
have regard to the following matters in addition to any other matter it considers
relevant--
(a) the safety of the community,
(b) the reports received from the persons appointed under section 126(5) to
conduct examinations of the forensic patient,
(c) the report of the qualified psychiatrist, registered psychologist or registered
medical practitioner provided under section 125(b),
(d) any other report of a qualified psychiatrist, registered psychologist or
registered medical practitioner provided in support of the application or by the
forensic patient,
(e) any order or decision made by the Tribunal with respect to the forensic patient
that is relevant to the application,
(f) any report of the Secretary of the Ministry of Health, the Commissioner of
Corrective Services, the Secretary of the Department of Communities and
Justice or any other government Department or agency responsible for the
detention, care or treatment of the forensic patient,
(g) the level of the forensic patient's compliance with any obligations to which the
patient is or has been subject while a forensic patient (including while released
from custody subject to conditions and while on leave of absence granted
under this Act),
(h) the views of the court that imposed the limiting term or existing extension
order on the forensic patient at the time the limiting term or extension order
was imposed,
(i) any other information that is available as to the risk that the forensic patient
will in future cause serious harm to others.
(3) If the Supreme Court makes an extension order in respect of a forensic patient, the
Court is to notify the Tribunal of the making of the order.
128 Term of extension orders
(1) An extension order--
(a) commences when it is made, or when the limiting term or existing extension
order to which the forensic patient is subject expires, whichever is the later,
and
(b) expires at the end of the period (not exceeding 5 years from the day on which
it commences) that is specified in the order.
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(2) Nothing in this section prevents the Supreme Court from making a second or
subsequent extension order against the same forensic patient.
129 Continuation of orders relating to forensic patients
The making of an extension order or interim extension order in respect of a forensic
patient does not affect the operation of any order as to the forensic patient's care,
detention, treatment or release from custody to which the forensic patient was subject
immediately before the making of the extension order.
Division 4 Interim extension orders
130 Interim extension orders
The Supreme Court may make an order for the interim extension of a person's status
as a forensic patient if, in proceedings on an application for an extension order, it
appears to the Court--
(a) that the limiting term or existing extension order to which the forensic patient
is subject will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved,
justify the making of an extension order.
131 Term of interim extension orders
(1) An interim extension order commences on the day fixed in the order for its
commencement (or, if no day is fixed, as soon as it is made) and expires at the end
of the period (not exceeding 3 months from the day on which it commences) that is
specified in the order.
(2) An interim extension order made for a period of less than 3 months may be renewed
from time to time, but not so as to provide for the extension of the person's status as
a forensic patient under an order of that kind for periods totalling more than 3
months.
132 Interim extension orders to continue in force for 24 hours in certain circumstances
(1) If the Supreme Court dismisses an application for an extension order in respect of a
forensic patient who is detained only as a result of an interim extension order, the
Court may (on its own motion or on application) order that the patient be detained for
a further period of up to 24 hours to enable a medical practitioner or accredited
person to assess whether a mental health certificate should be given in respect of the
patient under section 19 of the Mental Health Act 2007.
(2) The order ceases to authorise the detention of the person if the medical practitioner
or accredited person making the assessment decides not to give that mental health
certificate about the person.
Division 5 Extension orders or interim extension orders may be varied
or revoked
133 Extension order or interim extension order may be varied or revoked
(1) The Supreme Court may at any time vary or revoke an extension order or interim
extension order--
(a) on the application of a Minister administering this Act or the forensic patient,
or
(b) on the recommendation of the Tribunal under section 83(3).
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(2) The period of an order must not be varied so that the total period as varied is greater
than that otherwise permitted under this Part.
(3) Without limiting the grounds for revoking an extension order or interim extension
order, the Supreme Court may revoke an extension order or interim extension order
if satisfied that circumstances have changed sufficiently to render the order
unnecessary.
Division 6 Supreme Court proceedings
134 Nature of proceedings
Proceedings under this Part (including proceedings on an appeal under this Part) are
civil proceedings and, to the extent to which this Part does not provide for their
conduct, are to be conducted in accordance with the law (including the rules of
evidence) relating to civil proceedings.
135 Right of appeal
(1) An appeal to the Court of Appeal lies from a determination of the Supreme Court to
make, or to refuse to make, or to vary or revoke an extension order.
(2) An appeal may be on a question of law, a question of fact or a question of mixed law
and fact.
(3) An appeal against the decision of the Supreme Court may be made, as of right, within
28 days after the date on which the decision was made or, by leave, within the further
time as the Court of Appeal may allow.
(4) The making of an appeal does not stay the operation of an extension order.
(5) If the Court of Appeal remits a matter to the Supreme Court for decision after an
appeal is made, the extension order the subject of the appeal continues in force,
subject to any order made by the Court of Appeal.
(6) Without limiting any other jurisdiction it may have, if the Court of Appeal remits a
matter to the Supreme Court for decision after an appeal is made, the Court of Appeal
may make an interim order revoking or varying an extension order the subject of the
appeal.
(7) This section does not limit any right of appeal that may exist apart from this Part.
136 Costs not to be awarded against forensic patient
An order for costs may not be made against a forensic patient in relation to
proceedings under this Part (including proceedings on an appeal under this Part).
137 Preservation of Supreme Court jurisdiction
Nothing in this Part limits the jurisdiction of the Supreme Court apart from this Act.
Division 7 Miscellaneous
138 Minister may require provision of certain information
(1) A Minister administering this Act may, by order in writing served on any person,
require the person to provide to the Minister any document, report or other
information in that person's possession, or under that person's control, relating to the
behaviour, or physical or mental condition, of any forensic patient who is subject to
a limiting term, extension order or interim extension order.
(2) A person who fails to comply with the requirements of an order under this section is
guilty of an offence.
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Maximum penalty--100 penalty units or imprisonment for 2 years, or both.
(3) A Minister administering this Act may request a court or the Tribunal to provide to
the Minister any document, report or other information held by the court or Tribunal
relating to the behaviour, or physical or mental condition, of any forensic patient who
is subject to a limiting term, extension order or interim extension order.
(4) Despite any Act or law to the contrary, a document or report of a kind referred to in
subsection (1) or (3), or a copy of a document or report of that kind, is admissible in
proceedings under this Act (whether admission is sought by the Minister to whom
the document or report was provided or by another Minister administering this Act).
139 Information sharing
(1) A Minister administering this Act may disclose forensic patient information obtained
under this Act to any other Minister administering this Act--
(a) for the purpose of enabling or assisting either Minister to exercise functions
under this Act, or
(b) for the purpose of the administration or execution of this Act.
(2) In this section--
forensic patient information means a document, report or other information relating
to a forensic patient, including information of that kind that is--
(a) personal information within the meaning of the Privacy and Personal
Information Protection Act 1998 or the Health Records and Information
Privacy Act 2002, or
(b) health information within the meaning of the Health Records and Information
Privacy Act 2002.
140 Protection of certain persons from liability
No action lies against any person (including the State) for or in respect of any act or
omission done or omitted by the person if it was done or omitted in good faith for the
purposes of, or in connection with the administration or execution of, this Part.
141 Hearings
This Part does not affect the right of any party to proceedings under this Part--
(a) to appear, either personally or by the party's legal representative, or
(b) to call witnesses and give evidence, or
(c) to cross-examine witnesses, or
(d) to make submissions to the Supreme Court on any matter connected with the
proceedings.
142 Bail Act 2013 not to apply
The Bail Act 2013 does not apply to or in respect of a person who is the subject of
proceedings under this Part.
143 Rules of court
(1) Rules of court may be made under the Supreme Court Act 1970 for regulating the
practice and procedure of the Supreme Court in respect of proceedings under this
Part.
(2) This section does not limit the rule-making powers conferred by the Supreme Court
Act 1970.
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144 Qualification of psychiatrists
For the purposes of this Part, a psychiatrist is not a qualified psychiatrist unless he or
she is a registered medical practitioner who is a fellow of the Royal Australian and
New Zealand College of Psychiatrists.
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Part 7 Tribunal proceedings
Division 1 Provisions relating to proceedings
145 Victims and reviews by Tribunal
(1) A victim of a forensic patient may make a submission to the Tribunal if the Tribunal
is considering the release of or the grant of leave of absence to the forensic patient.
(2) A submission may include an application under section 146(2).
(3) The victim may request the Tribunal not to disclose to the forensic patient the whole
or part of a submission made by the victim.
(4) The Tribunal is to agree to a request of a victim not to disclose the whole or part of
a submission unless it considers that it is not in the interests of justice to agree to the
request.
Note. Among other things that may be considered by the Tribunal is the question of procedural
fairness to the forensic patient.
(5) The regulations may make provision for or with respect to submissions by victims
relating to the release of or grant of leave of absence to forensic patients.
(6) Without limiting subsection (5), the regulations may make provision for or with
respect to the following--
(a) the matters about which a victim may make submissions,
(b) the representation of victims by nominated support persons at hearings
conducted for the purpose of a review,
(c) the form of submissions by victims,
(d) the disclosure of victims' submissions to the forensic patient or other persons,
including the circumstances in which the Tribunal may determine that, having
regard to the interests of justice, non-disclosure is reasonable in the
circumstances.
(7) In conducting a review under this Act, the Tribunal is to have regard to the rights of
victims in accordance with the Charter of Victims Rights set out in the Victims Rights
and Support Act 2013.
146 Tribunal may amend or impose conditions on release or leave orders on application
of victims
(1) This section applies to an order of the Tribunal for the release of, or granting leave
of absence to, a forensic patient.
(2) A registered victim of the patient may apply to the Tribunal for any of the following
orders--
(a) an order varying a non-association condition of an order to which this section
applies or imposing a non-association condition on an order to which this
section applies,
(b) an order varying a place restriction condition of an order to which this section
applies or imposing a place restriction condition on an order to which this
section applies.
(3) The Tribunal may, on an application being made, vary the order to which this section
applies or impose any condition on the order or make any other order it may make
under this Part.
(4) In this section--
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non-association condition means a condition imposed by the Tribunal relating to the
association or non-association by a forensic patient with victims or victims' families.
place restriction condition means a condition imposed by the Tribunal relating to the
frequenting or visiting of places by a forensic patient.
147 General matters relating to Tribunal functions
(1) For the purposes of a review of a patient, the Tribunal may communicate with any
persons, take any action and make any recommendations it thinks fit.
(2) The Minister for Health and Medical Research and the Attorney General may appear
before the Tribunal, or make submissions to the Tribunal, in relation to any of the
following--
(a) the possible release of or grant of leave of absence to a forensic patient,
(b) a recommendation to revoke an extension order in respect of a forensic patient,
(c) the review of a patient who has been apprehended following an order by the
President of the Tribunal under this Act.
(3) A review of the case of a forensic patient or a correctional patient under this Act may
be conducted at the same time as any other review of the patient under this Act.
(4) An order by the Tribunal under this Act must be in writing.
(5) The Tribunal must inform the Minister for Police and Emergency Services, the
Minister for Health and Medical Research and the Attorney General of an order it
makes for the release of a person and of the date of the person's release.
148 Forensic Division to exercise functions
(1) The functions of the Tribunal under this Act are to be exercised by the Forensic
Division of the Tribunal.
(2) The Forensic Division of the Tribunal is to consist of the following members--
(a) the President or a Deputy President,
(b) a member who is a psychiatrist, a psychologist or other suitable expert in
relation to a mental condition,
(c) a member who has other suitable qualifications or experience.
Note. Under section 150(1) of the Mental Health Act 2007, the Tribunal is to be constituted by
members nominated by the President. See Chapter 6 of the Mental Health Act 2007 for other
provisions applying generally to the Tribunal.
(3) The Tribunal must not order the release of a forensic patient under this Act unless it
is constituted by at least 1 member, including the President or a Deputy President,
who is the holder or former holder of a judicial office.
(4) The regulations may provide that for specified functions of the Tribunal under this
Act or the regulations, the Forensic Division is to be constituted by the President or
a Deputy President.
(5) The regulations may make provision for or with respect to the constitution of the
Tribunal, and procedure, for a limited review under this Part.
Note. Regulations may also be made under section 160 of the Mental Health Act 2007 with
respect to procedure of the Tribunal for the purposes of this Act.
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Division 2 Appeals
149 References to matters of law
A reference in this Division to a matter of law includes a reference to a matter relating
to the jurisdiction of the Tribunal.
150 Appeals against Tribunal determinations generally
(1) A forensic patient, a correctional patient or a person on bail who is a party to a
proceeding before the Tribunal under this Act may appeal to the Supreme Court, by
leave of the Court, from any determination (other than a determination as to the
release of the person) of the Tribunal in that proceeding--
(a) on a question of law, or
(b) on any other question.
(2) The Minister for Health and Medical Research may appeal to the Supreme Court, as
of right, from any determination (other than a determination as to the release of the
person) of the Tribunal in a proceeding before the Tribunal under this Act--
(a) on a question of law, or
(b) on any other question.
(3) A registered victim of a forensic patient who is a party to proceedings under section
145 may appeal to the Supreme Court, by leave of the Court, from any determination
of the Tribunal under that section in those proceedings--
(a) on a question of law, or
(b) on any other question.
151 Appeals against release decisions
(1) A person may appeal to the Court of Appeal, by leave of the Court, from a
determination of the Tribunal under this Act as to the release of the person--
(a) on a question of law, or
(b) on any other question.
(2) The Minister for Health and Medical Research may appeal to the Court of Appeal, as
of right, from a determination of the Tribunal under this Act as to the release of a
person--
(a) on a question of law, or
(b) on any other question.
(3) The Attorney General may appeal to the Court of Appeal from a determination of the
Tribunal under this Act as to the release of a person, as of right, on a question of law.
152 Making of appeals
(1) An appeal under this Division must be made not later than 28 days--
(a) after the determination of proceedings by the Tribunal, or
(b) in the case of an appeal by the Minister for Health and Medical Research or
the Attorney General, of written notification to the Minister or Attorney
General by the Tribunal of the reasons for an order determining proceedings.
(2) The court may extend the period within which an appeal may be made.
(3) An appeal to a court under this Division is to be made subject to and in accordance
with the rules of the court.
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Part 7 Tribunal proceedings
153 Decisions on appeal
(1) After deciding the question the subject of an appeal under this Division, a court may,
unless it affirms the determination of the Tribunal on the question--
(a) make an order that in relation to the proceedings in which the question arose,
in its opinion, should have been made by the Tribunal, or
(b) remit its decision on the question to the Tribunal and order a rehearing of the
proceedings by the Tribunal.
(2) If a party has appealed under this Division to a court against a determination of the
Tribunal, either the Tribunal or the court may suspend, until the appeal is determined,
the operation of any order or determination made by the Tribunal in the proceedings
the subject of the appeal.
(3) If the Tribunal suspends the operation of an order or a determination, the Tribunal or
the court may terminate the suspension or, where the court has suspended the
operation of an order or a determination, the court may terminate the suspension.
154 Rehearings by Tribunal
(1) If a rehearing is held following an appeal, the Tribunal is not to proceed in a manner,
or make an order or a decision, that is inconsistent with the decision of the court
remitted to the Tribunal.
(2) Fresh evidence, or evidence in addition to or in substitution for the evidence on which
the original determination was made, may be given on a rehearing held by the
Tribunal following an appeal.
155 Tribunal not liable for costs
The Tribunal or a member of the Tribunal is not liable for any costs relating to a
determination of the Tribunal, or the failure or refusal of the Tribunal to make a
determination, in respect of which an appeal is made under this Act, or of the appeal.
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Part 8 Victims Register
Part 8 Victims Register
156 Victims Register
(1) There is to be a Victims Register.
(2) The following matters are to be included in the Victims Register--
(a) the names of victims of forensic patients who have requested that they be
given notice of the review by the Tribunal of those patients,
(b) any other matter prescribed by the regulations.
(3) The Victims Register may only include the name of a victim of a forensic patient if--
(a) there is a special verdict of act proven but not criminally responsible for the
offence against the victim entered in respect of the forensic patient (whether
or not following a special hearing), or
(b) a limiting term has been imposed on the forensic patient following a verdict in
a special hearing in respect of the offence against the victim.
(4) The Victims Register is to be kept by the Commissioner of Victims Rights and is to
be in the form determined by the Commissioner.
(5) The regulations may make provision for or with respect to the following matters--
(a) applications to register as a victim,
(b) the verification by the Commissioner of the identity of persons applying to
register as victims, and the circumstances under which they became victims,
(c) the use and disclosure of information contained in the Victims Register,
(d) notifications to victims by the Tribunal or the Commissioner,
(e) the operation and administration of the Victims Register.
157 Notification to victims of reviews and other matters
(1) The Commissioner of Victims Rights must give notice to a victim of a forensic
patient whose name is recorded in the Victims Register if--
(a) the forensic patient is due for a mandatory review by the Tribunal, or
(b) an application is made by or for the forensic patient for a review by the
Tribunal, or an application is made by or for the forensic patient to the
Tribunal, in relation to release or leave of absence, or
(c) the Tribunal makes an order for the release (including the conditional release)
of, or granting leave of absence to, the forensic patient or refuses to make an
order of that kind, or
(d) the forensic patient ceases to be a forensic patient, or
(e) the forensic patient is unlawfully absent from a mental health facility or other
place of detention, or
(f) the forensic patient appeals against a decision of the Tribunal, or
(g) notice is required to be given of a specified matter by regulations made for the
purposes of this paragraph.
(2) The notice is to be given subject to and in accordance with the regulations.
(3) Without limiting subsection (2), the notice must contain the following information--
(a) the matter being notified,
(b) that the victim may make a submission to the Tribunal in review proceedings
involving the forensic patient,
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Part 8 Victims Register
(c) the form that a submission may take,
(d) the period within which a submission must be made.
(4) The Commissioner is not required to give notice of a matter under this section if--
(a) the matter required to be notified to the victim is included in any other
requirement to give notice to the victim under this Act, or
(b) the victim has notified the Commissioner that the victim does not require
notice of the matter.
(5) A failure by the Commissioner to comply with this section does not affect the validity
of any decision or order made by the Tribunal.
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Part 9 Miscellaneous
Part 9 Miscellaneous
158 Notification of expiry of limiting term or extension order
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 each Minister administering this
Act of the date on which the limiting term or extension order is due to expire.
159 Duties of certain agencies
The following must use their best endeavours to comply with a request made to them
under this Act by the Tribunal if the request is consistent with the discharge of their
responsibilities and does not unduly prejudice the discharge of their functions--
(a) the Secretary of the Ministry of Health,
(b) the Commissioner of Corrective Services,
(c) the Secretary of the Department of Communities and Justice,
(d) the Commissioner of Victims Rights,
(e) the Executive Director, Juvenile Justice, Department of Communities and
Justice,
(f) any other government Department or agency responsible for the detention,
care or treatment of a forensic patient or correctional patient.
160 Tribunal to be notified if charges dismissed or proceedings end
A court or the Director of Public Prosecutions must notify the Tribunal if the relevant
charges against a forensic patient or correctional patient are dismissed or the person
is not to be further proceeded against in respect of the relevant charges.
161 Exchange of information
(1) The Secretary of the Ministry of Health, the Commissioner of Corrective Services
and the Secretary of the Department of Communities and Justice may enter into
arrangements (information sharing protocols) with each other to enable information
held by their Departments and associated agencies to be shared or exchanged
between those Departments and agencies.
(2) The information to which an information sharing protocol may relate is limited to the
following--
(a) information concerning forensic patients and correctional patients,
(b) other information that may be prescribed by the regulations.
(3) The Commissioner of Victims Rights and the President of the Tribunal may enter
into arrangements with each other to exchange information held by the Department
of Communities and Justice, the Commissioner or the Tribunal for the purposes of
the Victims Register and notifications under Part 8.
(4) Under an information sharing protocol or other arrangement under this section, each
Department and associated agency the subject of the arrangement is authorised,
without obtaining the consent of any person whose consent would otherwise be
required--
(a) to request and receive information held by another Department or associated
agency the subject of the arrangement, and
(b) to disclose information to any of those Departments or associated agencies.
(5) The authority conferred by this section relates only to information that is reasonably
necessary--
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Part 9 Miscellaneous
(a) in the case of information exchanged under an information sharing protocol,
to assist in the exercise of functions under this Act or the functions of the
relevant Departments or associated agencies concerned, or
(b) in the case of information exchanged under an arrangement under subsection
(3), for the purposes of the Victims Register and notifications under Part 8.
(6) This section does not limit the operation of an Act under which the Department or
associated agency concerned is authorised or required to disclose information to
another person or body.
(7) This section has effect despite the Crimes (Administration of Sentences) Act 1999 or
the Children (Detention Centres) Act 1987.
(8) The provision of information under this section does not constitute a contravention
of the Health Records and Information Privacy Act 2002 or the Privacy and Personal
Information Protection Act 1998.
(9) In this section--
associated agency means any of the following--
(a) a local health district (within the meaning of the Health Services Act 1997),
(b) a statutory health corporation (within the meaning of the Health Services Act
1997),
(c) the Tribunal,
(d) the Commissioner of Victims Rights.
162 Functions of Commissioner of Corrective Services and Secretary of Department of
Communities and Justice
(1) Despite any provision of this Act or any order made under this Act, the
Commissioner of Corrective Services and the Secretary of the Department of
Communities and Justice may exercise any of their functions in relation to a forensic
patient or correctional patient who is detained in a correctional centre or detention
centre if the function is exercised for the purpose of maintaining the security, good
order or safety, in any way, of the correctional centre or detention centre or its
inmates.
(2) The Secretary of the Department of Communities and Justice may delegate any of
the Secretary's functions under this Part (other than this power of delegation) to the
Executive Director, Juvenile Justice, Department of Communities and Justice.
163 Proceedings for offences
(1) Proceedings for an offence against this Act are to be dealt with summarily before the
Local Court.
(2) Proceedings for an offence under section 113 may be dealt with on indictment.
164 Delegation
(1) A Minister administering this Act may, by instrument in writing, delegate the
exercise of any function of the Minister under this Act (other than this power of
delegation)--
(a) to any person employed in a Department responsible to the Minister, or
(b) to any person, or any class of persons, authorised for the purposes of this
section by the regulations.
(2) The Secretary of the Department of Communities and Justice may delegate the
exercise of any function of the Secretary under this Act (other than this power of
delegation)--
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Part 9 Miscellaneous
(a) to any person employed in the Department of Communities and Justice, or
(b) to any person, or any class of persons, authorised for the purposes of this
section by the regulations.
(3) Nothing in this section limits the operation of section 21 of the Health Administration
Act 1982.
165 Orders for transfer of forensic patients
If an order is made by a court, the Tribunal or the Secretary of the Ministry of Health
specifying that a forensic patient is to be detained in or transferred to a specified
correctional centre or detention centre, the Commissioner of Corrective Services or
the Secretary of the Department of Communities and Justice may cause that patient
to be detained in any correctional centre or detention centre.
166 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
167 Repeals
The following are repealed--
(a) the Mental Health (Forensic Provisions) Act 1990 No 10,
(b) the Mental Health (Forensic Provisions) Regulation 2017.
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Schedule 1 Medical certificate as to examination of inmate
Schedule 1 Medical certificate as to examination of inmate
(Section 86(3))
Mental Health and Cognitive Impairment Forensic Provisions Act 2020
I, [name in full--use block letters] (*Medical Practitioner/Psychiatrist) of do certify that on
[date] at [state name of correctional centre or detention centre where examination took place] separately
from any other medical practitioner, I personally examined [name of inmate in full] and I am of the opinion
that *he/she is *a mentally ill person/a person who has a condition for which treatment is available in a
mental health facility.
I have formed this opinion on the following grounds--
(1) Facts indicating *mental illness/condition observed by myself.
..............................................................................................................................................................
..............................................................................................................................................................
..............................................................................................................................................................
..............................................................................................................................................................
(2) Other relevant information (if any) communicated to me by others (state name and address of each
informant).
..............................................................................................................................................................
..............................................................................................................................................................
..............................................................................................................................................................
..............................................................................................................................................................
..............................................................................................................................................................
Made and signed this [date]
[Signature]
*Delete whichever does not apply.
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Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of this Act or any Act that amends this Act.
(2) Any such provision--
(a) may, if the regulations so provide, take effect from the date of assent to the Act
concerned or a later date, and
(b) has effect despite anything to the contrary in this Schedule.
(3) To the extent to which any such provision takes effect from a date that is earlier than
the date of its publication on the NSW legislation website, the provision does not
operate so as--
(a) to affect, in a manner prejudicial to any person (other than the State or an
authority of the State), the rights of that person existing before the date of its
publication, or
(b) to impose liabilities on any person (other than the State or an authority of the
State) in respect of anything done or omitted to be done before the date of its
publication.
(4) Without limiting subclauses (1) and (2), regulations made for the purposes of this
clause may amend this Schedule to provide for additional or different savings and
transitional provisions instead of including provisions in the regulations.
Part 2 Provisions consequent on enactment of this Act
2 Definition
In this Part--
former Act means the Mental Health (Forensic Provisions) Act 1990.
3 General savings
(1) An act, matter or thing done or omitted to be done under a provision of the former
Act and having force or effect immediately before the commencement of a provision
of this Act that replaces that provision is, on that commencement, taken to have been
done or omitted to be done under the provision of this Act.
(2) This clause does not apply--
(a) to the extent to which its application is inconsistent with another provision of
this Schedule or a provision of a regulation made under this Schedule, or
(b) to the extent that its application would be inappropriate in a particular case.
4 Existing victims register
The information contained in the register of victims of forensic patients kept under
the former Act immediately before the commencement of this Act is taken to form
part of the Victims Register for the purposes of this Act.
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Schedule 2 Savings, transitional and other provisions
5 Application of new Act to existing proceedings where defence of not guilty by reason
of mental illness has been raised
(1) This clause applies to a defendant in proceedings for offences commenced before the
commencement of Part 3 of this Act where a question has been raised before that
commencement as to whether the defendant was, at the time of commission of the
offence, mentally ill as referred to in section 38 of the former Act.
(2) The former Act continues to apply to the defendant until a determination is made as
to whether a special verdict should be entered or the defence is no longer being
raised.
(3) In circumstances where the court would have found the special verdict of not guilty
by reason of mental illness the court must instead find the special verdict of act
proven but not criminally responsible.
6 Former special verdicts
A special verdict that a person was not guilty of an offence by reason of mental
illness is taken, for all purposes, to be a special verdict against the person of act
proven but not criminally responsible for the offence.
7 Application of new Act to existing proceedings where unfitness to be tried raised
(1) This Act extends to proceedings for offences commenced and not completed before
the commencement of Part 4 of this Act if the question of the defendant's unfitness
to be tried was raised before that commencement.
(2) Without limiting subclause (1), an inquiry or a special hearing commenced under the
former Act and not completed before that commencement is to be continued in
accordance with this Act.
8 Application of Act to existing summary proceedings
Part 3 of the former Act is to continue to apply to a defendant in proceedings to which
that Part applies that commenced before the commencement of Part 2 of this Act.
9 Application of Act to existing forensic patients
A person who, immediately before the commencement of Part 5 of this Act, was a
forensic patient or a correctional patient under the former Act is taken to be a forensic
patient or a correctional patient within the meaning of this Act and this Act applies
accordingly.
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Schedule 3 Amendment of Acts
Schedule 3 Amendment of Acts
3.1 Bail Act 2013 No 26
Section 43 Police power to make bail decision
Omit "section 33 (1) (a) or (b) or (1D) (a) or (b) of the Mental Health (Forensic Provisions)
Act 1990" from section 43(1B).
Insert instead "section 19(a) or (b) or section 21(1)(a) or (b) of the Mental Health and
Cognitive Impairment Forensic Provisions Act 2020".
3.2 Births, Deaths and Marriages Registration Act 1995 No 62
[1] Sections 25F, definition of "correctional patient" and 31K(4)
Omit "Part 5 of the Mental Health (Forensic Provisions) Act 1990" wherever occurring.
Insert instead "the Mental Health and Cognitive Impairment Forensic Provisions Act
2020".
[2] Section 25F Definitions
Omit "Mental Health (Forensic Provisions) Act 1990" from the definition of forensic
patient.
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
3.3 Child Protection (Offenders Registration) Act 2000 No 42
[1] Section 3 Definitions
Omit the definition of forensic patient from section 3(1). Insert instead--
forensic patient means a person who is subject to an order of detention under
the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 as
a result of a limiting term being imposed on the person, or the person being
subject to a special verdict of act proven but not criminally responsible, under
that Act.
[2] Section 3(1), paragraph (a) of definition of "government custody"
Omit "section 24(1)(b), 27 or 39 of the Mental Health (Forensic Provisions) Act 1990".
Insert instead "section 33(1), 61(2) or 65(2) of the Mental Health and Cognitive Impairment
Forensic Provisions Act 2020".
[3] Section 3(1), paragraph (a) of definition of "sentence"
Omit the paragraph. Insert instead--
(a) any order under section 65(2) of the Mental Health and Cognitive
Impairment Forensic Provisions Act 2020 that causes a person to be
kept in custody or an order of detention under section 33(1) or 61(2) of
that Act,
[4] Section 3(1), paragraphs (d) and (e) of definition of "supervised sentence"
Omit the paragraphs. Insert instead--
(d) an order of detention under section 33(1), 61(2) or 65(2) of the Mental
Health and Cognitive Impairment Forensic Provisions Act 2020, other
than an order that, as originally made, requires the person to be kept in
strict government custody.
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Schedule 3 Amendment of Acts
[5] Section 3(2)(e)
Omit "section 22(1)(b), (c) or (d) or section 38 of the Mental Health (Forensic Provisions)
Act 1990".
Insert instead "section 59(1)(b), (c) or (d) or of act proven but not criminally responsible
under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[6] Section 3G, heading
Omit "Mental Health (Forensic Provisions) Act 1990".
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act
2020".
[7] Section 3G(1)
Omit "section 10(3)(b), 14(b)(ii) or 17(2) of the Mental Health (Forensic Provisions) Act
1990".
Insert instead "the Mental Health and Cognitive Impairment Forensic Provisions Act
2020".
[8] Section 6 Notices to be given when registrable person ceases to be in custody or
under supervision of supervising authority
Omit "section 49 of the Mental Health (Forensic Provisions) Act 1990" wherever occurring
in section 6(1)(g) and (3).
Insert instead "section 94 of the Mental Health and Cognitive Impairment Forensic
Provisions Act 2020".
3.4 Children (Detention Centres) Act 1987 No 57
Section 14 Functions of the Secretary
Omit "Mental Health (Forensic Provisions) Act 1990" from section 14(2).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
3.5 Coroners Act 2009 No 41
Section 6 Meaning of "reportable death"
Omit "Mental Health (Forensic Provisions) Act 1990" from section 6(1)(f).
Insert instead "the Mental Health and Cognitive Impairment Forensic Provisions Act
2020".
3.6 Costs in Criminal Cases Act 1967 No 13
Section 2 Certificate may be granted
Omit "section 19 of the Mental Health (Forensic Provisions) Act 1990" from section 2(3).
Insert instead "the Mental Health and Cognitive Impairment Forensic Provisions Act
2020".
3.7 Crimes Act 1900 No 40
[1] Sections 4C and 4D
Insert after section 4B--
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Schedule 3 Amendment of Acts
4C Mental health impairment
(1) For the purposes of this Act, a person has a mental health impairment if--
(a) the person has a temporary or ongoing disturbance of thought, mood,
volition, perception or memory, and
(b) the disturbance would be regarded as significant for clinical diagnostic
purposes, and
(c) the disturbance impairs the emotional wellbeing, judgment or behaviour
of the person.
(2) A mental health impairment may arise from any of the following disorders but
may also arise for other reasons--
(a) an anxiety disorder,
(b) an affective disorder, including clinical depression and bipolar disorder,
(c) a psychotic disorder,
(d) a substance induced mental disorder that is not temporary.
(3) A person does not have a mental health impairment for the purposes of this Act
if the person's impairment is caused solely by--
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.
[2] Section 10E(3)
Omit "return a finding of not guilty on the grounds of mental illness".
Insert instead "return a finding of act proven but not criminally responsible because of
mental health impairment or cognitive impairment".
[3] Section 10E(3)
Omit "guilty of the offence".
Insert instead "criminally responsible".
[4] Section 10E
Insert after section 10E(6)--
(7) In this section--
cognitive impairment has the same meaning as in section 23A.
[5] Section 22A
Omit the section. Insert instead--
22A Infanticide
(1) A woman is guilty of infanticide and not of murder if--
(a) the woman by an act or omission causes the death of a child, in
circumstances that would constitute murder, within 12 months of giving
birth to the child, and
(b) at the time of the act or omission, the woman had a mental health
impairment that was consequent on or exacerbated by giving birth to the
child.
(2) A jury may, at the trial of a woman for the murder of her child, find the woman
guilty of infanticide and not of murder if the jury is of the opinion that--
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Schedule 3 Amendment of Acts
(a) the woman by an act or omission caused the death of the child, in
circumstances that would constitute murder, within 12 months of giving
birth to the child, and
(b) at the time of the act or omission, the woman had a mental health
impairment that was consequent on or exacerbated by giving birth to the
child.
(3) A woman found guilty of infanticide under this section may be dealt with and
punished as if the woman had been guilty of the offence of manslaughter of
the child.
(4) Nothing in this section affects the power of the jury on an indictment for the
murder of a child to return--
(a) a verdict of manslaughter, or
(b) a special verdict of act proven but not criminally responsible (within the
meaning of the Mental Health and Cognitive Impairment Forensic
Provisions Act 2020), or
(c) concealment of birth.
[6] Section 23A, heading
Omit "by abnormality of mind".
Insert instead "because of mental health impairment or cognitive impairment".
[7] Section 23A(1)(a)
Omit "an abnormality of mind arising from an underlying condition".
Insert instead "a mental health impairment or a cognitive impairment".
[8] Section 23A(7)(a)
Omit the paragraph. Insert instead--
(a) that the person is entitled to be acquitted on the ground that the person
was not criminally responsible because of mental health impairment or
cognitive impairment, or
[9] Section 23A(8)
Omit the subsection. Insert instead--
(8) For the purposes of this section, a person has a cognitive impairment if--
(a) the person has an ongoing impairment in adaptive functioning, and
(b) the person has an ongoing impairment in comprehension, reason,
judgment, learning or memory, and
(c) the impairments result from damage to or dysfunction, developmental
delay or deterioration of the person's brain or mind that may arise from
a condition set out in subsection (2) or for other reasons.
(9) A cognitive impairment may arise from any of the following conditions but
may also arise for other reasons--
(a) intellectual disability,
(b) borderline intellectual functioning,
(c) dementia,
(d) an acquired brain injury,
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Schedule 3 Amendment of Acts
(e) drug or alcohol related brain damage, including foetal alcohol spectrum
disorder,
(f) autism spectrum disorder.
3.8 Crimes (Administration of Sentences) Act 1999 No 93
Section 193 Information concerning offenders and correctional centres
Omit "under section 39 of the Mental Health (Forensic Provisions) Act 1990" from section
193(1)(d).
Insert instead "after a special verdict of act proven but not criminally responsible within the
meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
3.9 Crimes (Appeal and Review) Act 2001 No 120
[1] Section 74 Definitions
Omit "section 22(1)(c) or (d) of the Mental Health (Forensic Provisions) Act 1990" from
paragraph (a) of the definition of conviction in section 74(1).
Insert instead "section 59(1)(c) or (d) of the Mental Health and Cognitive Impairment
Forensic Provisions Act 2020".
[2] Section 74(1), paragraph (b) of definition of "conviction"
Omit the paragraph. Insert instead--
(b) a special verdict of act proven but not criminally responsible entered at
a trial, or following a special hearing under that Act, if the defence of
mental health impairment or cognitive impairment was not set up as a
defence by the person for whom the verdict was entered.
3.10 Crimes (Forensic Procedures) Act 2000 No 59
[1] Section 88 Destruction of forensic material after 12 months
Omit "not guilty of the offence on the ground of mental illness" from section 88(9)(a).
Insert instead "act proven but not criminally responsible within the meaning of the Mental
Health and Cognitive Impairment Forensic Provisions Act 2020".
[2] Section 88(9)(b)
Omit "Mental Health (Forensic Provisions) Act 1990".
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
3.11 Crimes (Sentencing Procedure) Act 1999 No 92
[1] Section 30L, heading
Omit "not guilty by reason of mental illness or limited finding of guilt".
Insert instead "act proven but not criminally responsible".
[2] Section 30L(1)(a)
Omit the paragraph. Insert instead--
(a) a special verdict of act proven but not criminally responsible (whether
or not following a special hearing) under the Mental Health and
Cognitive Impairment Forensic Provisions Act 2020, or
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Schedule 3 Amendment of Acts
[3] Section 30M Submissions by designated carers and principal care providers
Omit section 30M(1)(a). Insert instead--
(a) a special verdict of act proven but not criminally responsible (whether
or not following a special hearing) under the Mental Health and
Cognitive Impairment Forensic Provisions Act 2020, or
[4] Section 30N Victim impact statements in mental health and cognitive impairment
forensic proceedings
Omit "Mental Health (Forensic Provisions) Act 1990" from section 30N(5).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[5] Section 54 Exclusions from Division
Omit "Mental Health (Forensic Provisions) Act 1990" from section 54(c).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[6] Section 54D Exclusions from Division
Omit "Mental Health (Forensic Provisions) Act 1990" from section 54D(1)(b).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
3.12 Criminal Appeal Act 1912 No 16
[1] Section 2 Definitions
Omit the definition of Conviction from section 2(1). Insert instead--
Conviction includes the following--
(a) a finding following an inquiry within the meaning of the Mental Health
and Cognitive Impairment Forensic Provisions Act 2020 by a court that
a person is unfit to be tried for an offence,
(b) a finding of a court following a special hearing referred to in section
59(1)(c) or (d) of that Act.
[2] Section 2(1), paragraphs (d) and (e) of definition of "Sentence"
Omit the paragraphs. Insert instead--
(d) any order made by the court of trial imposing a limiting term of
imprisonment on a person following a special hearing under the Mental
Health and Cognitive Impairment Forensic Provisions Act 2020 and
any other order or penalty made or imposed by the court of trial in
respect of a person following a special hearing under that Act, or
(e) any order made by the court of trial in respect of a person following a
special verdict of act proven but not criminally responsible, or
[3] Section 2(1)
Insert in alphabetical order--
Special verdict of act proven but not criminally responsible has the same
meaning as in the Mental Health and Cognitive Impairment Forensic
Provisions Act 2020.
[4] Section 5 Right of appeal in criminal cases
Omit section 5(2). Insert instead--
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Schedule 3 Amendment of Acts
(2) For the purposes of this Act, a person for whom a special verdict of act proven
but not criminally responsible is entered is, if the defence of mental health
impairment or cognitive impairment was not set up as a defence by the person,
taken to be a person convicted and an order to keep the person in custody is
taken to be a sentence.
[5] Section 5AA Appeal in criminal cases dealt with by courts in their summary
jurisdictions
Omit section 5AA(2). Insert instead--
(2) For the purposes of this Act, a person for whom a special verdict of act proven
but not criminally responsible is entered is, if the defence of mental health
impairment or cognitive impairment was not set up as a defence by the person,
taken to be a person convicted and an order to keep the person in custody is
taken to be a sentence.
[6] Section 6A Powers of court in relation to certain convictions and sentences
concerning mentally ill persons
Omit section 6A(a)-(c). Insert instead--
(a) a finding following an inquiry within the meaning of the Mental Health
and Cognitive Impairment Forensic Provisions Act 2020 by a court that
a person is unfit to be tried for an offence, or
(b) a finding of a court referred to in section 59(1)(c) or (d) of that Act in
respect of a person, or
(c) any order made by the court of trial imposing a limiting term of
imprisonment on a person following a special hearing under that Act
and any other order or penalty made or imposed by the court of trial in
respect of a person following a special hearing under that Act, or
(d) any order made by the court of trial in respect of a person following a
special verdict of act proven but not criminally responsible,
[7] Section 7 Powers of court in special cases
Omit "the appellant was mentally ill, so as not to be responsible, according to law, for the
appellant's action at the time when the act was done or omission made" from section 7(4).
Insert instead "a special verdict of act proven but not criminally responsible should have
been entered in respect of the appellant".
3.13 Drug and Alcohol Treatment Act 2007 No 7
Section 4 Application of Act
Omit "Mental Health (Forensic Provisions) Act 1990" from section 4(2)(b).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
3.14 Government Information (Public Access) Act 2009 No 52
Schedule 2 Excluded information of particular agencies
Omit "Mental Health (Forensic Provisions) Act 1990" from clause 4.
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Schedule 3 Amendment of Acts
3.15 Guardianship Act 1987 No 257
Section 34 Application of Part
Omit "Mental Health (Forensic Provisions) Act 1990" wherever occurring in section 34(2).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
3.16 Jury Act 1977 No 18
Schedule 1 Persons excluded from jury service
Omit "Mental Health (Forensic Provisions) Act 1990" from clause 4(2)(f).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
3.17 Mental Health Act 2007 No 8
[1] Section 4 Definitions
Omit "Mental Health (Forensic Provisions) Act 1990" wherever occurring in the
definitions of correctional patient and forensic patient in section 4(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[2] Section 4(1), paragraph (b) of definition of "involuntary patient"
Omit "section 53 of the Mental Health (Forensic Provisions) Act 1990".
Insert instead "the Mental Health and Cognitive Impairment Forensic Provisions Act
2020".
[3] Section 4(1), paragraph (c) of definition of "involuntary patient"
Omit "section 65 of the Mental Health (Forensic Provisions) Act 1990".
Insert instead "the Mental Health and Cognitive Impairment Forensic Provisions Act
2020".
[4] Section 24 Detention on order of Magistrate or bail officer
Omit "section 33 of the Mental Health (Forensic Provisions) Act 1990".
Insert instead "Division 3 of Part 2 of the Mental Health and Cognitive Impairment
Forensic Provisions Act 2020".
[5] Section 32 Detention on order of Magistrate or bail officer
Omit "section 33 of the Mental Health (Forensic Provisions) Act 1990" wherever occurring
in section 32(1)(b) and (7).
Insert instead "Division 3 of Part 2 of the Mental Health and Cognitive Impairment
Forensic Provisions Act 2020".
[6] Section 32(5)
Omit "section 33(1)(b) or (1D)(b) of the Mental Health (Forensic Provisions) Act 1990".
Insert instead "section 19(b) or 21(1)(b) of the Mental Health and Cognitive Impairment
Forensic Provisions Act 2020".
[7] Section 77 Notification to new involuntary patients of appeal rights
Omit "Mental Health (Forensic Provisions) Act 1990" from section 77(1A).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
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Schedule 3 Amendment of Acts
[8] Section 84 Treatment may be given to patients
Omit "Mental Health (Forensic Provisions) Act 1990".
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[9] Section 107 Delegation
Omit "Mental Health (Forensic Provisions) Act 1990" from section 107(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[10] Section 150 Composition of Tribunal
Omit "Mental Health (Forensic Provisions) Act 1990" from section 150(2).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[11] Section 151 Procedure at meetings of Tribunal to be informal
Omit "Mental Health (Forensic Provisions) Act 1990" from section 151(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[12] Section 153 Determination whether a person is a mentally ill person or mentally
disordered person
Omit "Mental Health (Forensic Provisions) Act 1990" from section 153(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[13] Section 155 Adjournments
Omit "Mental Health (Forensic Provisions) Act 1990" from section 155(2).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[14] Section 160 Tribunal procedure generally
Omit section 160(2)(i).
[15] Section 160(3)
Omit "Mental Health (Forensic Provisions) Act 1990".
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[16] Section 162 Publication of names
Omit "Mental Health (Forensic Provisions) Act 1990" from section 162(1)(c).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[17] Section 162A Tribunal may request information or services from other agencies
Omit "Mental Health (Forensic Provisions) Act 1990" from section 162A(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[18] Section 165 Panel of assessors
Omit "Mental Health (Forensic Provisions) Act 1990" from section 165(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
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Schedule 3 Amendment of Acts
[19] Section 170 Definitions
Omit "Mental Health (Forensic Provisions) Act 1990" wherever occurring in the
definitions of corresponding law and mental health laws.
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[20] Section 172 Corresponding laws, documents and interstate community treatment
orders
Omit "Mental Health (Forensic Provisions) Act 1990" from section 172(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[21] Section 174 Admission of persons to mental health facilities in other States
Omit "Mental Health (Forensic Provisions) Act 1990" wherever occurring in section
174(1) and (2)(a).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[22] Section 177 Admission of interstate persons to mental health facilities in this State
Omit "Mental Health (Forensic Provisions) Act 1990" from section 177(2)(a).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[23] Section 178 Application of Acts to persons brought to mental health facilities from
outside this State
Omit "Mental Health (Forensic Provisions) Act 1990" from section 178(2).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[24] Section 180 Status of transferred persons
Omit "Mental Health (Forensic Provisions) Act 1990" from section 180(2).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[25] Section 181 Community treatment orders relating to interstate persons
Omit "Mental Health (Forensic Provisions) Act 1990".
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[26] Section 182 Interstate implementation of New South Wales orders
Omit "Mental Health (Forensic Provisions) Act 1990" from section 182(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[27] Section 184 Recognition of interstate community treatment orders
Omit "Mental Health (Forensic Provisions) Act 1990" wherever occurring in section
184(1) and (2).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[28] Section 189 Disclosure of information
Omit "Mental Health (Forensic Provisions) Act 1990" wherever occurring in section
189(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Schedule 3 Amendment of Acts
[29] Section 190 Act does not limit or affect other powers
Omit "Mental Health (Forensic Provisions) Act 1990" wherever occurring.
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[30] Section 191, heading
Omit "Mental Health (Forensic Provisions) Act 1990".
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act
2020".
[31] Section 191
Omit "Mental Health (Forensic Provisions) Act 1990" wherever occurring in section
191(1), (1A), (2) and (3).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[32] Section 196 Regulations
Omit "section 67 of the Mental Health (Forensic Provisions) Act 1990" from section
196(2)(m).
Insert instead "section 99 of the Mental Health and Cognitive Impairment Forensic
Provisions Act 2020".
3.18 NSW Trustee and Guardian Act 2009 No 49
[1] Section 45 Consideration of capability of forensic patients to manage affairs
Omit "Mental Health (Forensic Provisions) Act 1990".
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[2] Section 88 Revocation of order by MHRT
Omit "Mental Health (Forensic Provisions) Act 1990" from section 88(2).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
3.19 Victims Rights and Support Act 2013 No 37
[1] Section 3 Definitions
Omit "Mental Health (Forensic Provisions) Act 1990" from the definition of forensic
patient in section 3(1).
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
[2] Section 6A Additional matters for Charter of victims rights for victims of forensic
patients
Omit "Mental Health (Forensic Provisions) Act 1990".
Insert instead "Mental Health and Cognitive Impairment Forensic Provisions Act 2020".
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Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 [NSW]
Schedule 3 Amendment of Acts
[3] Section 10 Functions of Commissioner
Omit "Part 5A of the Mental Health (Forensic Provisions) Act 1990" from section
10(1)(h1).
Insert instead "Part 8 of the Mental Health and Cognitive Impairment Forensic Provisions
Act 2020".
[4] Section 10(1)(j)
Insert after section 10(1)(i)--
(j) the functions conferred on the Commissioner under the Mental Health
and Cognitive Impairment Forensic Provisions Act 2020.
Page 75
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