5. Identifying existence of a cognitive or mental impairment
INTRODUCTION
5.1 While having a clear, comprehensive definition of mental illness and cognitive impairment is undoubtedly helpful, it is generally necessary for a court to rely on expert assessment of the defendant’s condition. Where it appears to a court that a defendant may have a mental illness or a cognitive impairment such that it may affect his or her criminal responsibility or ability to stand trial, it may be advantageous for a court to be able to order that a defendant undergo an examination to ascertain his or her mental state, either at the time of offending conduct or during court proceedings. While there are a number of isolated circumstances in which a court may request that an offender be referred for assessment, there is no general legislative power in NSW to make an order that such an assessment occur.
5.2 In this chapter, we consider whether such a power should be introduced into the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the MHFPA”).
EXISTING MECHANISMS
5.3 Currently, if a question of fitness is raised in the District and Supreme Courts, the court may “request”, but not order, that a defendant undergo a psychiatric or other examination, or that a psychiatric or other report be obtained.1 No equivalent provision exists if the defences of mental illness or substantial impairment are raised.2 When sentencing an offender with a cognitive or mental health impairment, the Local, District and Supreme Courts have a power to adjourn sentencing that can be used, for example, to allow time for the offender to undergo a psychological or psychiatric assessment.3 Additionally, a court may, and in some circumstances must, order a pre-sentencing report, prepared by the Department of Corrective Services.4
5.4 In the Local and Children’s Courts, there are two mechanisms by which a defendant might be referred by the court for such an assessment. The first mechanism is an informal one. The magistrate, legal representative or other criminal justice system personnel might refer the person to the Statewide Community and Court Liaison Service. Referrals are made informally. The Service conducts a mental health screen, and may refer the person for a psychiatric assessment where screening results indicate that one is necessary.
5.5 The only formal mechanism that exists is under s 33 of the MHFPA in relation to diversion of mentally ill offenders.5 A magistrate can order that a defendant be taken to a hospital for assessment and/or treatment, if the person appears to have a mental illness within the meaning of the Mental Health Act 2007 (NSW) (“the MHA”). However, s 33 only applies to offenders with a mental illness, and not to those with a developmental disability, intellectual disability or cognitive impairment. Some preliminary submissions suggested that s 32 of the MHFPA should be amended to empower the court to make assessment orders with respect to a broader range of defendants with cognitive impairments.6
5.6 Since the diversion provisions currently only apply to Local or Children’s Court proceedings, this power does not extend to the District or Supreme courts. It also excludes committal proceedings.7 It was also suggested in preliminary submissions that an assessment power similar to that in s 33 should be available in respect of committal proceedings and/or proceedings in the District and Supreme Courts.8
Other jurisdictions
5.7 In several jurisdictions the court has a power to order that the defendant undergo a psychiatric or psychological examination and that the results of the examination be put before the court.9 Some jurisdictions have assessment provisions similar to s 33, but applicable to a broader range of offenders,10 or to courts other than the Local Court.11 In the Australian Capital Territory, if a question of fitness is raised in the Magistrates or Supreme Court, the court may require the defendant to be examined by “a psychiatrist or other health professional” or may call evidence on its own initiative.12 Similar provisions apply in South Australia,13 Western Australia,14 and Tasmania.15
5.8 A further, more general provision exists in South Australia, empowering the court to require the defendant to “undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.”16 The power may be exercised on the application of either party, or on the judge’s own initiative if he or she “considers the examination and report necessary to prevent a possible miscarriage of justice”.17
5.9 In Queensland, if a person is charged with a simple or minor indictable offence, and becomes subject to an involuntary mental health treatment order or to a forensic order, the Director of Mental Health must refer the matter to the Mental Health Court.18 The person undergoes a psychiatric examination to ascertain his or her mental condition, its relationship (if any) to the alleged offence, the likely prognosis and the person’s fitness to be tried.19 Additionally, in any Mental Health Court proceeding, the Mental Health Act 2000 (Qld) requires that each party must give the registrar a copy of any expert’s report the party has relating to the matters to be decided by the Mental Health Court.20
5.10 Some jurisdictions also make specific provision for assessment orders prior to sentencing. In Victoria, if a person is found guilty of an offence and appears to be mentally ill, the court may make an assessment order, detaining the person in a mental health facility for up to 72 hours, to determine the person’s suitability for mental health sentencing options.21 If the person appears to have an intellectual disability, the court may request the Department of Human Services to prepare a statement that the person has an intellectual disability, a plan of available services and a pre-sentence report.22 Similar powers specifically relating to assessment orders prior to sentencing exist in the ACT23 and Queensland.24 In England and Wales, the court is obliged to obtain and consider a medical report before imposing a custodial sentence on an offender who is, or appears to be, mentally disordered.25
5.11 In other jurisdictions, there is a single power to order an assessment of the defendant in relation to all stages of proceedings. In New Zealand, if a person is in custody at any stage of proceedings against the person in relation to an offence, a court, on application by the defence or prosecution or on the court’s own initiative, may order that a “health assessor” prepare an “assessment report” on the person.26 The purpose of an assessment report is to assist the court in determining whether the person is unfit to stand trial, whether the person is “insane” within the meaning of the Crimes Act 1961 (NZ), the type and length of sentence that might be imposed on the person, and/or the conditions or requirements that the court might impose under a sentence or order.27
5.12 In Canada, the court has a similar power to make an assessment order at any stage of proceedings, on its own motion, or on application by the defendant or the prosecution.28 An assessment report must be filed with the court and copies of the report provided to the prosecutor, the accused, and counsel for the accused.29
A GENERAL POWER TO ORDER ASSESSMENTS
5.13 The creation of a single general power for a court to order an assessment of a defendant’s cognitive or mental state holds a number of attractions. It would be less unwieldy than having separate powers for different stages of proceedings, and would avoid the possibility of the power not being available when needed. The power could be available for a range of purposes, such as determining whether:
- the defendant has a cognitive or mental health impairment sufficient for diversion from the local court under s 32 or 33 of the MHFPA;
- the defendant is fit to be tried;
- the defence of mental illness, or the partial defence of substantial impairment, is available;
- factors that may be relevant to sentencing offenders found guilty of an offence,30 or appropriate disposition options following a finding of unfitness or not guilty by reason of mental illness.
Issues to consider
5.14 Apart from the question of whether the power should exist at all, there are other issues that require attention. For example:
- who should conduct the assessment?
- what information should the assessment contain?
- how should the information obtained from an assessment be used?
5.15 In most jurisdictions where such a powers exists, including the power in s 33 of the MHFPA, the assessment is carried out independently of the court, usually at a mental health facility by an independent practitioner. However, specialists at mental health facilities deal only with mental illness, and not with cognitive disabilities. Another possibility is for the court to appoint a practitioner from a list of mental health or cognitive disability specialists. In NSW, there is the option of requesting assessments to be conducted by Justice Health or by the Mental Health Review Tribunal (“the MHRT”). This option has limitations in that Justice Health deals only with offenders already in custody, while the MHRT only has jurisdiction over forensic and correctional patients.31 While these limitations could be overcome by extending the jurisdiction of the MHRT and Justice Health, at this stage we favour the assessment being conducted by an independent practitioner. Where appropriate, this could be conducted at a mental health facility or other specialist facility for cognitive disability.
5.16 The second issue relates to the content of the assessment report. Should the assessor be required to report only on the nature and degree of the defendant’s impairment and the impact that the impairment has on his or her behaviour, or should the report also contain a statement of suggested and/or available treatment services, or a treatment plan, as occurs in some other jurisdictions.
5.17 The third issue is somewhat related to the second, since the content of the assessment report would be likely to guide the way in which the report is used. For example, if the report contained suggestions of available and appropriate treatment options, it could be used to develop a treatment plan.
5.18 The question of admissibility of the assessment report into evidence also needs to be addressed. For example, should the report be admissible as documentary evidence alone, or should it only be available where the author is available and willing to provide oral evidence? It may be that the answer to this question may depend on the circumstances of each case, and the court should have a broad discretion to rule according to the circumstances.
5.19 Of particular concern would be the admissibility of any statements made by the defendant during the course of the assessment, particularly if they could be self-incriminating. In Queensland, the Mental Health Act 2000 (Qld) requires that each party must provide to the Mental Health Court any expert report relevant to the matters to be decided, even if giving the report would “disclose matter detrimental to the case of the person the subject of the reference.” 32 We seek views on these matters.
Issue 5.6
FOOTNOTES
1. MHFPA s 10(3)(d)-(e).
2. MHFPA pt 4.
3. Crimes (Sentencing Procedure) Act 1999 (NSW) s 11.
4. As to the discretion to order a pre-sentence report, see R v Majors (1991) 27 NSWLR 624; R v Olive [2006] NSWCCA 329, [12]-[19]. The CSPA requires pre-sentence assessments before the imposition of a sentence of periodic detention, home detention and community service orders: see pt 5 div 3, pt 6 div 3, pt 7 div 3, and Crimes (Sentencing Procedure) Regulation 2005 (NSW) reg 15, 20.
5. See Consultation Paper 7 (“CP 7”) for a comprehensive discussion of the diversion provisions contained in s 32 and 33 of the MHFPA.
6. The Shopfront Youth Legal Centre, Submission, 3; Law Society of New South Wales, Submission, 2-3.
7. MHFPA s 31; Children’s (Criminal Proceedings) Act 1987 (NSW) s 27.
8. See, eg, Director of Public Prosecutions, Submission, 2; Intellectual Disability Rights Service, Submission, 6; Shopfront Youth Legal Centre, Submission, 2-3; Law Society of New South Wales, Submission, 2.
9. Crimes Act 1900 (ACT) s 315A(1)(b); Criminal Code Act 1983 (NT) s 43P(3); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 11(1)(b); Criminal Law Consolidation Act 1935 (SA) s 269K(1); Criminal Justice (Mental Impairment) Act 1999 (Tas) s 11(1); Criminal Code, RSC 1985 (Canada) pt XX s 672.11-12.
10. For example, in the ACT, if a magistrate has reasonable grounds to believe that the defendant “needs immediate treatment or care because of mental impairment”, it may order the defendant to be transported to a health facility for assessment: Crimes Act 1900 (ACT) s 309.
11. In the Northern Territory, the Magistrates and Supreme Courts have a power to make an “assessment order” for a defendant who appears to be “mentally ill” or “mentally disturbed” to be detained for up to 72 hours for admission to and treatment in a mental health facility: Mental Health and Related Services Act 1998 (NT) s 74(1). The court may also make an admission order, being an order that the defendant be admitted and detained in a treatment facility for diagnosis, assessment and treatment, with or without additional conditions. Proceedings may be adjourned for up to 15 days, or other period agreed to by the parties: Mental Health and Related Services Act 1998 (NT) s 75.
12. Crimes Act 1900 (ACT) s 315A(1)(b).
13. Criminal Law Consolidation Act 1935 (SA) s 269K(1).
14. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 12(1), s 12(2)(a).
15. Criminal Justice (Mental Impairment) Act 1999 (Tas) s 4(1), s 11(1).
16. Criminal Law Consolidation Act 1935 (SA) s 269F(A)(1)(b), 269G(B)(1)(b).
17. Criminal Law Consolidation Act 1935 (SA) s 269F(A)(2), 269G(B)(2).
18. Mental Health Act 2000 (Qld) s 240, s 247(1)(c).
19. Mental Health Act 2000 (Qld) s 238(2)-(3). When the matter is referred to the Mental Health Court, the psychiatrist’s report must be attached: s 242(2).
20. Mental Health Act 2000 (Qld) s 265.
21. Sentencing Act 1991 (Vic) s 90; Sentencing Act 1995 (NT) s 79(1). As to mental health sentencing options, see ch 8.
22. Sentencing Act 1991 (Vic) s 80(1).
23. Crimes Act 1900 (ACT) s 331. See also Crimes Act 1900 (ACT) s 309; Mental Health (Treatment and Care) Act 1994 (ACT) s 41, 41A (power similar to Mental Health (Criminal Procedure) Act 1990 (NSW) s 33).
24. Mental Health Act 2000 (Qld) s 61-62. A plea of not guilty may be entered and proceedings adjourned: s 62.
25. See Criminal Justice Act 2003 (UK) s 157.
26. Criminal Procedure (Mentally Impaired Persons) Act 2003 (NZ) s 38(1). The health assessor must prepare an assessment report, in consultation with any carer and/or welfare guardian of the person, each parent or guardian if the person is a child or young person and the person’s family: s 39(2).
27. Criminal Procedure (Mentally Impaired Persons) Act 2003 (NZ) s 38(1). Health assessor is defined: s 4(1).
28. Criminal Code, RSC 1985 (Canada) s 672.1(1), 672.12-672.16. An assessment order must specify where and by whom the assessment is to be made; whether the accused is to be detained while the order is in force, and the duration of the order, which is limited to 30 days. An assessment order cannot include a requirement that psychiatric or other treatment be administered, or that the defendant submit to such treatment: s 672.19. If an application for an assessment is made by the prosecution, the court may make the order only if the defendant has raised the defence of mental disorder or if the prosecution satisfies the court that there are reasonable grounds to doubt the defendant’s capacity or criminal responsibility (respectively): s 672.12.
29. Criminal Code, RSC 1985 (Canada) s 672.2(1)-(4).
30. Specific issues arise concerning pre-sentence reports: see discussion in Consultation Paper 6 (“CP 6”), ch 8.
31. See [3.29]-[3.33].
32. Mental Health Act 2000 (Qld) s 265. However, there are limits placed on the use and admissibility of such evidence in both the Mental Health Court and other proceedings: s 314-318.
