MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - As at 19 February 2024 - Act 12 of 2020

Table of Provisions

• Long Title

PART 1 - PRELIMINARY

• 1 Name of Act
• 2 Commencement
• 3 Definitions
• 4 Mental health impairment
• 5 Cognitive impairment
• 6 References to juries and matters determined by a judge alone

PART 2 - SUMMARY PROCEEDINGS

Division 1 - Preliminary

• 7 Interpretation
• 8 Application of Part
• 9 Magistrate may make order at any time
• 10 Means by which Magistrate may be informed
• 11 Magistrate to state reasons for decisions

Division 2 - Defendants with mental health impairments or cognitive impairments

• 12 Defendants with mental health impairments or cognitive impairments
• 13 Adjournment of proceedings
• 14 Orders Magistrate may make
• 15 Considerations of Magistrate when making order
• 16 Failure of defendant to comply with condition of order
• 17 Reports from treatment providers

Division 3 - Mentally ill or mentally disordered persons

• 18 Mentally ill or mentally disordered persons
• 19 Orders Magistrate may make
• 20 Community treatment orders
• 21 Proceedings before authorised justice
• 22 Orders may relate to transfer of defendants by certain persons
• 23 Dismissal of charges
• 24 Bail

Division 4 - General

• 25 Transfer from correctional centre or detention centre
• 26 Regulations

PART 3 - DEFENCE OF MENTAL HEALTH IMPAIRMENT OR COGNITIVE IMPAIRMENT

• 27 Application of Part
• 28 Defence of mental health impairment or cognitive impairment
• 29 Explanation to jury
• 30 Effect of finding of act proven but not criminally responsible because of mental health impairment or cognitive impairment
• 31 Special verdict where defendant and prosecutor agree on impairment
• 32 Special verdict not available for alternative offence
• 33 Effect of special verdict
• 34 Referral of defendant to Tribunal

PART 4 - FITNESS TO STAND TRIAL

Division 1 - Preliminary

• 35 Application of Part
• 36 Fitness test
• 37 When question of unfitness may be raised
• 38 Question of unfitness to be determined on balance of probabilities
• 39 Court and other persons may raise question of unfitness

Division 2 - Procedure when question of unfitness to be tried raised

• 40 Procedure where question of unfitness raised before arraignment
• 41 Procedure where question of unfitness raised after arraignment
• 42 When an inquiry is required or may not be held
• 43 Actions pending inquiry
• 44 Inquiry procedures
• 45 Presumptions as to findings about unfitness
• 46 Finding after inquiry that defendant is fit to be tried
• 47 Finding after inquiry that defendant is unfit to be tried
• 48 Finding after inquiry that defendant will not become fit to be tried within 12 months
• 49 Tribunal review and court orders after finding that defendant may be fit to be tried within 12 months
• 50 Finding by Tribunal that defendant is fit to be tried
• 51 Finding by Tribunal that defendant will not become fit to be tried within 12 months
• 52 Committal proceedings following finding of fit to be tried
• 53 Advice as to whether further proceedings are to be taken

Division 3 - Special hearings

• 54 Nature of special hearings
• 55 When special hearings are held
• 56 Procedure for special hearings
• 57 Amendment of indictment
• 58 Juries at special hearings
• 59 Verdicts at special hearings
• 60 Verdict of not guilty
• 61 Special verdict of act proven but not criminally responsible because of mental health impairment or cognitive impairment
• 62 Verdict of offence committed on limited evidence available
• 63 Penalties after finding of guilt
• 64 Commencement of limiting terms
• 65 Referral to Tribunal after limiting term imposed
• 66 Reports about defendant
• 67 Referral of defendant to Tribunal following special verdict
• 68 Effect of finding that offence was committed on other proceedings for the offence

PART 5 - FORENSIC PATIENTS AND CORRECTIONAL PATIENTS

Division 1 - General principles and concepts

• 69 Objects
• 70 Treatment, care and detention of patients
• 71 Application of provisions of Mental Health Act 2007 to forensic patients and correctional patients
• 72 Forensic patients
• 73 Correctional patients
• 74 Role of objects and principles provisions

Division 2 - General provisions relating to reviews by Tribunal

• 75 Matters Tribunal must consider that apply to all orders
• 76 Unlawful absence from mental health facility or other place
• 77 Extension of mandatory review period

Division 3 - Reviews of forensic patients by Tribunal

• 78 Mandatory reviews of forensic patients
• 79 Tribunal may review patient at any time
• 80 Reviews of persons found unfit to be tried for an offence
• 81 Orders that may be made on reviews generally
• 82 Orders for transfer of forensic patients
• 83 Orders for release of forensic patients
• 84 Matters that Tribunal must consider when determining whether to release a forensic patient
• 85 Conditions that may be imposed by Tribunal on release of forensic patients

Division 4 - Transfer of correctional patients, forensic patients and other persons in custody

• 86 Transfer from correctional centre or detention centre by Secretary
• 87 Transfer back to correctional centre or detention centre
• 88 Requests for transfer to correctional centre or detention centre
• 89 Reviews by Tribunal of persons awaiting transfer to mental health facility
• 90 Reviews of patients transferred under this Division

Division 5 - Reviews of correctional patients

• 91 Mandatory reviews of correctional patients
• 92 Periodic and other reviews of correctional patients
• 93 Tribunal may review patient at any time

Division 6 - Leave of absence

• 94 Tribunal may grant leave for forensic patients
• 95 Commissioner of Corrective Services may grant leave for correctional patients
• 96 Leave for forensic patients and correctional patients in emergencies or special circumstances
• 97 Appeals against decisions of Secretary
• 98 Grants of leave do not affect sentences or limiting terms

Division 7 - Community treatment orders

• 99 Community treatment orders
• 100 Reviews of persons in custody who are subject to community treatment orders

Division 8 - Termination of status as patient and other status changes

• 101 Termination of status as forensic patient
• 102 Effect of unlawful absence on limiting term
• 103 Extension of status as forensic patient
• 104 Termination of status as correctional patient
• 105 Classification of patients as involuntary patients
• 106 Limits on classification of forensic patients
• 107 Release from detention on ceasing to be a forensic patient or correctional patient
• 108 Person who ceases to be forensic patient or correctional patient may become voluntary patient

Division 9 - Enforcement

• 109 Breach of orders for release
• 110 Execution of apprehension orders
• 111 Apprehension of persons not permitted to be absent from mental health facility
• 112 Apprehended person may seek reconsideration by Tribunal
• 113 Aiding or permitting escape
• 114 Issue of warrants for apprehension of persons outside State and other persons

Division 10 - Miscellaneous

• 115 Transfer and transport of patients
• 116 Effect of detention in mental health facility on sentence and parole
• 117 Security conditions for patients
• 118 Planning for release and leave
• 119 Retaking of escapees
• 120 Forensic patients and correctional patients in the community may be detained and treated under Mental Health Act 2007

PART 6 - EXTENSION OF STATUS AS FORENSIC PATIENT

Division 1 - Extension orders

• 121 Extension orders for forensic patients
• 122 Forensic patients in respect of whom extension orders may be made

Division 2 - Application for extension orders

• 123 Minister may apply for extension order
• 124 Application for extension order
• 125 Requirements with respect to application
• 126 Pre-hearing procedures

Division 3 - Determination of applications

• 127 Determination of application for extension orders
• 128 Term of extension orders
• 129 Continuation of orders relating to forensic patients

Division 4 - Interim extension orders

• 130 Interim extension orders
• 131 Term of interim extension orders
• 132 Interim extension orders to continue in force for 24 hours in certain circumstances

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

Division 6 - Supreme Court proceedings

• 134 Nature of proceedings
• 135 Right of appeal
• 136 Costs not to be awarded against forensic patient
• 137 Preservation of Supreme Court jurisdiction

Division 7 - Miscellaneous

• 138 Minister may require provision of certain information
• 139 Information sharing
• 140 Protection of certain persons from liability
• 141 Hearings
• 142 Bail Act 2013 not to apply
• 143 Rules of court
• 144 Qualification of psychiatrists

PART 7 - TRIBUNAL PROCEEDINGS

Division 1 - Provisions relating to proceedings

• 145 Victims and reviews by Tribunal
• 146 Tribunal may amend or impose conditions on release or leave orders on application of victims
• 147 General matters relating to Tribunal functions
• 148 Forensic Division to exercise functions

Division 2 - Appeals

• 149 References to matters of law
• 150 Appeals against Tribunal determinations generally
• 151 Appeals against release decisions
• 152 Making of appeals
• 153 Decisions on appeal
• 154 Rehearings by Tribunal
• 155 Tribunal not liable for costs

PART 8 - VICTIMS REGISTER

• 156 Victims Register
• 157 Notification to victims of reviews and other matters

PART 9 - MISCELLANEOUS

• 158 Notification of expiry of limiting term or extension order
• 159 Duties of certain agencies
• 160 Tribunal to be notified if charges dismissed or proceedings end
• 161 Exchange of information
• 162 Functions of Commissioner of Corrective Services and Secretary of Department of Communities and Justice
• 163 Proceedings for offences
• 164 Delegation
• 165 Orders for transfer of forensic patients
• 166 Regulations
167. (Repealed)
• SCHEDULE 1
• SCHEDULE 2
Schedule 3 (Repealed)