Issues

Updates and background for this project (Digest)

PDF version (1 MB)   How to obtain a hard copy of this consultation paper

Should the MHFPA expressly require the court to consider the issue of fitness whenever it appears that the accused person may be unfit to be tried?

Do the Presser standards remain relevant and sufficient criteria for determining a defendant’s fitness for trial?

Should the test for fitness to stand trial be amended by legislation to incorporate an assessment of the ability of the accused to make rational decisions concerning the proceedings?
If so, should this be achieved by:
(a) the addition of a new standard to the Presser formulation, or
(b) by amendment of relevant standards in the existing formulation?

As an alternative to the proposal in Issue 6.3, should legislation identify the ability of the accused to participate effectively in the trial as the general principle underlying fitness determinations, with the Presser standards being listed as the minimum standards that the accused must meet?

Should the minimum standards identified in Presser be expanded to include deterioration under the stress of trial?

Should the minimum standards identified in Presser be altered in some other way?

Should the procedure for determining fitness be changed and, if so, in what way?

What should be the role of:
(a) the court; and
(b) the MHRT
in determining a defendant’s fitness to be tried?

Should provision be made for the defence and prosecution to consent to a finding of unfitness?

Should the Criminal Appeal Act 1912 (NSW) be amended to provide for the Court of Criminal Appeal to substitute a “qualified finding of guilt” in cases where a conviction is quashed due to the possible unfitness of the accused person at the time of trial?

Should fitness procedures apply in Local Courts? If so, how should they be framed?

Should legislation provide for the situation where a committal hearing is to be held in respect of an accused person who is or appears to be unfit to be tried? If so, what should be provided?

Should the special hearing procedure continue at all, or in its present form? If not, how should an unfit offender be given an opportunity to be acquitted?

Should a procedure be introduced whereby the court, if not satisfied that the prosecution has established a prima facie case against the unfit accused, can acquit the accused at an early stage?

Should deferral of the determination of fitness be available as an expeditious means of providing the accused with an opportunity of acquittal?

Should the special hearing be made more flexible? If so, how?

Should the MHFPA provide for the defendant to be excused from a special hearing?

Should the finding that “on the limited evidence available, the accused person committed the offence charged [or an offence available as an alternative]” be replaced with a finding that “the accused person was unfit to be tried and was not acquitted of the offence charged [or an offence available as an alternative]”?

Should a verdict of “not guilty by reason of mental illness” continue to be available at special hearings? Are any additional safeguards necessary?

Should the defence of mental illness be replaced with an alternative way of excusing defendants from criminal responsibility and directing them into compulsory treatment for mental health problems (where necessary)? For example, should it be replaced with a power to divert a defendant out of criminal proceedings and into treatment?

Should legislation expressly recognise cognitive impairment as a basis for acquitting a defendant in criminal proceedings?
If yes, should the legislation expressly include cognitive impairment as a condition coming within the scope of the defence of mental illness, or is it preferable that a separate defence of cognitive impairment be formulated as a ground for acquittal?

Should the defence of mental illness be available to defendants with a personality disorder, in particular those demonstrating an inability to feel empathy for others?

Should the defence of mental illness be available to defendants who lack the capacity to control their actions?

Should the test for the defence of mental illness expressly refer to delusional belief as a condition that can be brought within the scope of the defence? If yes, should the criminal responsibility of a defendant who acts under a delusional belief be measured as if the facts were really as the defendant believed them to be?

Should the current test for determining the application of the defence of mental illness be retained without change?

If the M’Naghten rules were reformulated in legislation, should the legislation define the concept of a disease of the mind? If so, how should it be defined? Should the common law requirement for a “defect of reason” be omitted from the statutory formulation?

If the M’Naghten rules were reformulated in legislation, should the legislation recognise, as one way of satisfying the defence, a lack of knowledge of the nature and quality of the act? If so, should the legislation provide for a lack of actual knowledge, or a lack of capacity to know?

If the M’Naghten rules were reformulated in legislation, should the legislation recognise, as one way of satisfying the defence, a lack of knowledge that the criminal conduct was wrong? If so, should the legislation provide any guidance about the meaning of this alternative? For example, should it require that the defendant could not have reasoned with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong? Should the legislation require a lack of capacity to know, rather than a lack of actual knowledge?

Should the approach for determining the application of the defence of mental illness under the M’Naghten rules be replaced with a different formulation? If so, how should the law determine the circumstances in which a defendant should not be held criminally responsible for his or her actions due to mental illness or other impairment of mental function?

Should a defendant’s self-induced intoxication or withdrawal from an intoxicant be able to form a basis for claiming that the defendant is not guilty of a charge by reason of mental illness and, if so, in what circumstances?

Should the defence of mental illness apply to a defendant’s involuntary act if that involuntary act was caused by a disease of the mind? If yes, should legislation provide a test for determining involuntary acts that result from a disease of the mind as opposed to involuntary acts that come within the scope of the defence of automatism, and if so, how should that test be formulated?

Should the MHFPA be amended to allow the prosecution, or the court, to raise the defence of mental illness, with or without the defendant’s consent?

Should the MHFPA be amended to allow for a finding of “not guilty by reason of mental illness” to be entered by consent of both parties?

Should the court have the power to order an assessment of the defendant for the purpose of determining whether he or she is entitled to a defence of mental illness?

Should a process other than an ordinary trial be used to determine whether a defendant is not guilty by reason of mental illness?

Should the defence of mental illness be available generally in the Local Court and, if so, should it be available in all cases?

If the umbrella definition of cognitive and mental impairment suggested in Consultation Paper 5, Issue 5.2 were to be adopted, should it also apply to the partial defence of substantial impairment?

As an alternative to an umbrella definition of cognitive and mental impairment, should the mental state required by s 23A be revised? If so, how?

Is the requirement in s 23A of the Crimes Act that the impairment be “so substantial as to warrant liability for murder being reduced to manslaughter” sufficiently clear? If not, how should it be modified?

Should the defence of substantial impairment be retained or abolished? Why or why not?

Is there a continuing need for infanticide to operate, either as an offence in itself, or as a partial defence to murder?

Should the continued operation of the infanticide provisions be conditional on the retention of the partial defence of substantial impairment?

If infanticide is to be retained, should it be recast? If so, how?

Should the MHFPA be amended to provide a mechanism and/or requirement for the court to notify the MHRT of the terms of its order under s 27 of the MHFPA?

To what extent (if any) should sentencing principles continue to apply to the court’s decision whether to detain or release a person who is UNA?

Should the MHFPA be amended to provide additional guidance to the court in deciding whether to order detention or release of persons found NGMI?

Should the MHFPA be amended to provide guidance to the court in relation to the conditions that may be attached to an order for conditional release?

Is there any reason to retain a distinction between the orders available to the court in cases where the person is UNA or NGMI?

If the present frameworks are to be retained:
(a) should the definition of “forensic patient” be amended to include a person who is UNA and in respect of whom a non-custodial order is made?
(b) should the MHFPA be amended to provide a power for the court to order conditional release if it does not make an order for detention under s 27?

What orders should be available to the court?

Should the same orders be available both for persons who are UNA and for those who are found NGMI?

What orders should result in a person becomes a “forensic patient”?

To what extent (if any) should the court take into account a risk of harm to the person him- or herself, as distinct from the risk (if any) to other members of the community?

Should the court be provided with a power to refer a person to the civil jurisdiction of the MHRT, or to another appropriate agency, if the person poses a risk of harm to no-one but him or herself?

What kind of possible “harm” should be relevant to decisions by the court to detain or release persons who are UNA or NGMI?

Should “harm” be defined in the MHFPA?

How should the relevant degree of risk of harm be expressed in the MHFPA? Should it be defined?

Should a presumption in favour of detention continue to apply when courts are making decisions about persons who are UNA or NGMI?

When deciding what order to make in respect of a person who is UNA or NGMI, should the court be required to apply a principle of least restriction consistent with:
(a) the safety of the community?
(b) the safety of the person concerned? and/or
(c) some other object(s)?

In relation to court proceedings involving people who are UNA or NGMI, are the current provisions concerning notification to, and participation by:
(a) victims; and
(b) carers
adequate and appropriate?

What principles should apply when courts are making decisions about persons who are UNA or NGMI?

What factors should courts be allowed and/or required to take into account when making decisions about persons who are UNA or NGMI?

In cases where the person is UNA, should the possibility that the person will become fit to be tried be a sufficient basis for the court to make an order of some kind?

Should legislation specify what standard of proof applies to facts which form the basis of the court’s decision as to what order to make in respect of a person who is UNA or who has been found NGMI? If so, what standard of proof should be specified?

What powers or procedures (if any) should be provided to assist the court in determining the appropriate order in cases where the person is UNA or NGMI?

Should legislation provide a mechanism for the court to notify the MHRT of its final order in cases where the person is UNA or NGMI?

In what circumstances (if any) should the Criminal Appeal Act provide for the person the subject of the proceedings to appeal against:
(a) a verdict of NGMI;
(b) orders by the court in cases where the person is NGMI;
(c) non-acquittal at a special hearing?
(d) orders by the court in cases where the person is UNA?

In what circumstances (if any) should the Criminal Appeal Act allow the prosecution to appeal against:
(a) a verdict of NGMI?
(b) orders by the court in cases where the person is NGMI?
(c) orders by the court in cases where the person is UNA?

Should the Criminal Appeal Act be amended to require the Court of Criminal Appeal to consider the safety of the person and/or the community prior to making an order for release?

What manner of appeal is most appropriate for reviewing:
(a) findings; and
(b) consequent orders in cases where the person is UNA or NGMI?

Should any ancillary powers be provided to assist the Court of Criminal Appeal in deciding such cases?

Is there any reason why Local Court magistrates should not have power to make orders in respect of persons who are UNA or NGMI?

If the Local Court should have powers for cases involving persons who are UNA or NGMI, should they be the same as the powers of the District and Supreme Courts? If not, what should be provided?

Should the MHFPA provide for a forensic patient to apply for a review of his or her case?

Are the provisions regarding the conditions that may attach to leave or release adequate and appropriate? If not, what changes should be made?

Should the MHFPA be amended to abolish the requirement for the MHRT to notify
• the Minister for Police;
• the Minister for Health; and/or
• the Attorney General
of an order for release?

Should legislation provide specific roles for an agency or agencies in relation to supporting and supervising forensic patients in the community?

Are there any legislative changes that should be made in relation to the making and implementation of orders for:
• leave; and/or
• conditional release
of forensic patients?

Are the procedures relating to breaches of orders adequate and appropriate? If not, what else should be provided?

Are the current provisions concerning notification to, and participation by victims in proceedings of the MHRT adequate and appropriate? If not, what else should be provided?

Are the current provisions concerning notification to, and participation by carers in proceedings of the MHRT adequate and appropriate? If not, what else should be provided?

Are the current provisions relating to people who are UNA who become fit to be tried adequate and appropriate?

Should a person cease to be a forensic patient if he or she becomes fit to be tried and the Director of Public Prosecutions decides that no further proceedings are to be taken?

Should legislation specify circumstances in which, or a period after which, fitness ceases to be an issue?

Should the requirement that the MHRT have regard to whether a forensic patient who was UNA has spent “sufficient” time in custody be abrogated?

Are the provisions of the MHFPA which define the circumstances in which a person ceases to be a forensic patient sufficient and appropriate? If not, are there any additional circumstances in which a person should cease to be a forensic patient?

Should there be provisions for referring a person who is UNA into other care, support and/or supervision arrangements at the expiry of the limiting term? If so, what should they be?

Are the provisions regarding the entitlement to be released from detention upon ceasing to be a forensic patient adequate and appropriate? If not, what else should be provided?

Are the provisions for appeals against decisions by the MHRT adequate and appropriate? If not, how should they be modified?

Should the MHFPA be amended to exclude the detention of forensic patients in correctional centres?

If detaining forensic patients in correctional centres is to continue, are legislative measures needed to improve the way in which forensic patients are managed within the correctional system?

Under what circumstances, if any, should forensic patients be subject to compulsory treatment?

Should different criteria apply to:
• different types of treatment; and/or
• forensic patients with different types of impairment?

Is the range of interventions for which the MHA and the MHFPA provide adequate and appropriate for all forensic patients? In particular, are different or additional provisions needed for forensic patients who have cognitive impairments?

Are the present safeguards regarding compulsory treatment of forensic patients adequate? If not, what other safeguards are needed?

Should the MHFPA provide any additional factors to which the MHRT must have regard when making decisions about forensic patients?

Should the relevant risk of harm be expressed and defined in the same way for the purposes of decisions by the Forensic Division of the MHRT as it is for the court? If not, how should the provisions relating to the MHRT be different?

In what circumstances, and to what extent should the Forensic Division of the MHRT be required to have regard to a risk of harm only to the person concerned, in the absence of any risk to others?

Should a requirement to impose only the “least restriction” apply to all decisions regarding forensic patients?

How should any such principle of “least restriction” be expressed in the MHFPA? Should it be expressed differently for the purposes of different types of decisions?

Should a limit apply to the length of time for which people who are UNA and/or people who are NGMI remain subject to the forensic mental health system?

If there is a time limit, on what basis should it be determined?

Should the same approach be used both for persons who are UNA and for those who have been found NGMI?

Should s 21A of the CSPA be amended to include “cognitive and mental health impairment” as a factor in sentencing?

Further, should the CSPA contain a more general statement directing the court’s attention to the special considerations that arise when sentencing an offender with cognitive or mental impairments? If so, how should that statement be framed?

Should the purposes of sentencing as set out in s 3(1)(a) of the CSPA be modified in terms of their relevance to offenders with cognitive and mental health impairments? If so, how?

Should the CSPA be amended to make it mandatory for a court to order a pre-sentence report when considering sentencing offenders with cognitive or mental health impairments to prison?
If so:
(a) what should the report contain?
(b) should the contents be prescribed in the relevant legislation?

Should the CSPA be amended to give courts the power to order that offenders with cognitive or mental health impairments be detained in facilities other than prison?
If so, how should such a power be framed?

Should the CSPA provide a mechanism for courts to notify other agencies and tribunals of the needs of offenders with cognitive and mental health impairments who are sentenced to imprisonment?
If so, should the legislation state that the sentencing court:
(a) may make recommendations on the warrant of commitment concerning the need for psychiatric evaluation, or other assessment of an offender’s mental condition as soon as practicable after reception into a correctional centre; and/or
(b) may forward copies of any reports concerning an offender’s impairment-related needs to the correctional centre, Justice Health, the MHRT, or the Disability Services Unit within DCS, if appropriate?

Should the CSPA be amended to empower the court, when considering imposing a sentence of imprisonment on an offender with a mental illness, to request that the MHRT assess the offender with a view to making a community treatment order pursuant to s 67(1)(d) of the MFPA?

What similar powers, if any, should the court have with regard to offenders with other mental conditions or cognitive impairments?

Should provisions regarding parole be amended to refer specifically to offenders with cognitive and mental health impairments? In particular, should the relevant legislation require specific consideration of an offender’s cognitive or mental impairment:
(a) by the Probation and Parole Service when preparing reports for the Parole Authority;
(b) by the court when setting parole conditions; or
(c) by the Parole Authority when determining whether to grant or revoke parole, and when determining parole conditions.

Should the relevant legislation dealing with periodic detention, home detention, community service orders and good behaviour bonds be amended to increase the relevance and appropriateness of these sentencing options for offenders with cognitive or mental impairments?

In particular, how could:
(a) the eligibility and suitability requirements applicable to each type of order; and
(b) the conditions that may attach to each semi or non-custodial option
be adapted to meet the requirements of offenders with cognitive or mental impairments.

Should s 11 of the CSPA concerning deferral of sentencing be amended to refer expressly to rehabilitation or intervention programs for offenders with cognitive or mental health impairments?