Changes to the Mental Health Act

There were changes to the Queensland laws surrounding mental health in March 2017 when the Mental Health Act 2016 commenced, replacing the Mental Health Act 2000.

Changes to the way charges in the Magistrates Court are dealt with under the Mental Health Act

Perhaps one of the biggest changes to new Mental Health Act is the express powers provided to the Magistrates Court to deal with people charged with simple offences (offences punishable in the Magistrates Court).

Previously, the Magistrates Court had little power to make orders for matters where the defendant may have been of unsound mind at the time of an offence or is unfit for trial.

Magistrates now have the power to dismiss simple charges if a person appears to have been of unsound mind at the time of an offence or is unfit for trial.

A Magistrate may also refer a person to an authorised mental health service for examination (this is known as an Examination Order).  This examination may result in a treatment authority being made for the involuntary treatment of the person, or the development of a treatment plan for the voluntary treatment of the person.

A Magistrate also has the discretion to refer any indictable offence (i.e. an offence that could be dealt with in the District Court or the Supreme Court) to the Mental Health Court if:

1. The person was, or appears to have been, of unsound mind when the offence was allegedly committed; or
2. The person is unfit for trial; and
3. Both of the following apply:
   1. The nature circumstances of the offence create an exceptional circumstance in relation to the protection of the community; and
   2. A forensic order or treatment support order may be justified.

What happens if my lawyer thinks that the Mental Health Act might apply to me?

If your lawyer believes that you may have been of unsound mind at the time of the alleged offending and/or be unfit for trial, they may advise you to see a psychiatrist for the purpose of a mental health assessment.

In some cases, for simple offences (i.e. charges that can be finalised in the Magistrates Court), Queensland Health provides the Court Liaison Service which offers these mental health assessments free of charge.

Seek Legal Advice

While this article is intended to provide you with a guide of the general principles that operate in Queensland, it is not to be considered legal advice and may not cover important aspects that apply to your individual circumstances.

If you have concerns about how your mental health may affect your legal proceedings, you should seek our legal advice. We have a criminal law office on the Gold Coast and in Brisbane.

Article by Danielle Warren, Criminal Lawyer