Mental Health Defences and the Mental Health Court
Queensland, like many other jurisdictions, has mechanisms in place to appropriately deal with the connection between mental health and criminal offending.
This can involve diverting individuals with mental health issues or intellectual disabilities away from traditional criminal courts and into mental health treatment and support programs.
The Mental Health Court in Queensland has three key tasks:
- Determining:
- whether a person charged with a criminal offence was of unsound mind when they allegedly committed the offence; and/or
- whether the person is fit for trial;
- Hearing appeals from the Mental Health Review Tribunal; and
- Conducting inquiries into whether a person’s detention in a mental health facility is lawful.
This article will focus on the first task of determination.
When and why is someone referred to the Mental Health Court?
Someone charged with a serious criminal offence can be referred to the Mental Health Court if it’s believed that they are (or were) suffering from a mental illness, or they have an intellectual disability.
Serious offences are ones that cannot be heard in the Magistrates Court, including (for example) murder and manslaughter, sex crimes such as rape or indecent treatment, grievous bodily harm, arson, and robbery.
If a person is charged with a summary offence (i.e., an offence that must be heard in the Magistrates Court) and they are (or were) suffering from a mental health issue, a different process may apply. Check out our article for those types of cases here.
A criminal case can be sent to the Mental Health Court by:
- the defendant, or their lawyer;
- the Director of Public Prosecutions;
- the Director of Mental Health, if the person is receiving treatment for a mental illness or intellectual disability;
- The Director of Forensic Disability; or
- The Magistrates Court, District Court or Supreme Court.
A criminal matter is referred to the Mental Health Court by:
- Filling out a Reference (a form available on the Queensland Courts website); and
- Obtaining a report from an expert (psychiatrist or other mental health clinician) who has examined the defendant. This expert could be the person’s treating psychiatrist or a forensic psychiatrist, for example.
These documents are filed in the Mental Health Court registry to begin proceedings in that Court.
If you are charged with a criminal offence and you are (or were) suffering from a mental illness or disability, contact us today to discuss how this may affect your criminal matter.
Request a free online consultation or call our Gold Coast Legal Office on (07) 5532 3133 or our Brisbane Legal Office on (07) 3221 4999.
What Sort of Mental Health Issues / Illnesses Qualify for the Mental Health Court?
If you suffer from any type of mental illness, it is worth speaking with us to discuss how it may affect your criminal matter.
Some of the types of mental illnesses that have seen people referred to the Mental Health Court include:
- Depression;
- Anxiety;
- Schizophrenia;
- Bipolar Disorder;
- Obsessive Compulsive Disorder (OCD);
- Panic Disorder;
- Post Traumatic Stress Disorder (PTSD);
- Borderline Personality Disorder; and
- Any other mental illness where the person may have been experiencing psychotic symptoms (hallucinations etc).
What happens after a matter is referred to the Mental Health Court?
Once someone has been referred to the Mental Health Court, the Court will typically order one or two assessments of the defendant by a Court-nominated psychiatrist (or other health practitioner).
Once an assessment has been conducted, the psychiatrist’s report outlining their opinion on the person’s state of mind and their recommendations for future management of the person’s mental health or disability will be provided to the Court.
The Prosecution will also provide the Court with the police evidence in relation to the alleged offending, including witness statements and other material (for example, footage).
What happens during a Mental Health Court hearing?
During a hearing, the Mental Health Court determines issues such as criminal responsibility and fitness for trial. The Court can also remove mentally ill and intellectually disabled offenders from the criminal justice system and place them into the mental health system.
The Court consists of a single Supreme Court judge, assisted by two psychiatrists. These are different psychiatrists to the ones who have assessed the defendant and have provided their expert opinions as part of the referral process.
A Mental Health Court hearing is not a trial to determine whether the person is guilty or not guilty of the offence. Because it is an inquiry-style hearing, the rules of evidence do not apply as they do in the criminal courts.
During a hearing, the court may consider:
- oral evidence from expert witnesses (i.e. psychiatrists);
- the brief of evidence including a criminal history (provided by police or the Office of the Director of Public Prosecutions);
- all medical reports relating to the matters to be decided in the court;
- written submissions from the parties; and
- relevant material submitted by victims or concerned persons that do not form a part of the brief of evidence.
After hearing all of the evidence, the judge (with the help of the assisting psychiatrists) will decide issues such as:
- Whether the alleged offender was ‘of unsound mind’ at the time of the offence?
- Is the alleged offender ‘unfit for trial’? If they are, is the unfitness for trial temporary or permanent?
- For a charge of murder, whether the alleged offender was of diminished responsibility (which, if they did, would result in the charge being downgraded).
The Court only needs to be satisfied on the balance of probabilities when deciding the above questions.
What does ‘unsound mind’ mean?
If a person was of ‘unsound mind’ at the time of the alleged offending, it means that their mental state was such that it had one or more of the following consequences:
- They were deprived of the capacity to understand what they were doing; or
- They were deprived of the capacity to control their actions; or
- They were deprived of the capacity to know that they ought not to do the act (or make the omission).
What happens if the Mental Health Court decides that a person was of unsound mind or that they are permanently unfit for trial?
If the Mental Health Court makes a finding that a person was of unsound mind at the time of the alleged offending, or that they are permanently unfit for trial, the criminal case against the person will be discontinued.
The Mental Health Court may also make a Forensic Order. People on a Forensic Order may be provided with involuntary treatment and care. This might be in an inpatient or community setting. If necessary, an Order can also detain a person in an authorised mental health service or the Forensic Disability Service.
In deciding whether a Forensic Order is necessary, the Mental Health Court will consider whether it is necessary to protect the community (including the risk of serious harm to people or property).
The Court also has the option of making a Treatment Support Order, which involves less oversight than a Forensic Order.
What happens if the Mental Health Court decides that a person does not have a mental health defence?
If the Mental Health Court decides that a person was not of unsound mind at the time of the alleged offending and that they are fit for trial, then the matter continues its progress through the criminal courts.
Do I need legal advice?
If you have been charged with a criminal offence and you have been diagnosed with (or believe you were or are suffering from) a mental illness or intellectual disability, you should get legal advice from one of our lawyers who have experience with matters before the Mental Health Court.
Contact us to discuss your options – Request a free online consultation or call our Gold Coast Legal Office on (07) 5532 3133 or our Brisbane Legal Office on (07) 3221 4999.