Mid Mountains Legal Blog

Mental Health and Cognitive Impairment

Anthony Steel

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) aims to divert people with mental health issues away from the criminal justice system and towards rehabilitation or other programs to assist their wellbeing.

Questions of mental capacity can arise at three stages during criminal proceedings:

  1. Whether an accused successfully raises the defence of mental health or cognitive impairment;
  2. Whether a person is fit to stand trial: and
  3. Mental health or cognitive impairment may be a significant factor in sentencing by dismissing charges or reducing moral culpability.

What Is a Mental Health Impairment?

The Act says that a person has a mental health impairment if:

  1. they have a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
  2. the disturbance would be regarded as significant for clinical diagnostic purposes, and
  3. the disturbance impairs their emotional wellbeing, judgment or behaviour.

Disorders which may give rise to a mental health impairment include the following:

  1. a substance induced mental disorder that is not temporary;
  2. an anxiety disorder;
  3. a psychotic disorder;
  4. an affective disorder, including clinical depression and bipolar disorder.

A person does not have a mental health impairment for the purposes of the Act if it is caused solely by:

  1. the temporary effect of ingesting a substance, or
  2. a substance use disorder.

What Is a Cognitive Impairment?

A person has a cognitive impairment if, due to damage to or dysfunction, developmental delay or deterioration of their brain, they have an ongoing impairment in:

  1. adaptive functioning; and
  2. comprehension, reason, judgment, learning or memory.

Conditions which may give rise to a cognitive impairment include:

  1. intellectual disability;
  2. borderline intellectual functioning;
  3. dementia;
  4. an acquired brain injury;
  5. drug or alcohol related brain damage, including foetal alcohol spectrum disorder; and
  6. autism spectrum disorder.

Fitness to Stand Trial

If someone would be incapable of understanding the nature or purpose of the proceedings or incapable of communicating with the court or counsel to conduct a defence, they would be considered unfit to stand trial.

The court, defence or prosecution can raise the question of fitness to stand trial in criminal proceedings in the Supreme Court and the District Court.

A person is unfit to be tried for an offence if they have a mental health impairment and/or cognitive impairment, or for another reason, they cannot:

  1. understand the offence the subject of the proceedings;
  2. understand the substantial effect of evidence given against them;
  3. follow the course of the proceedings so as to understand what is going on in a general sense;
  4. plead to the charge;
  5. understand generally the nature of the proceedings as an inquiry into whether they committed the offence with which they are charged;
  6. instruct their solicitor so as to mount a defence and give them/the court their version of the facts;
  7. decide what defence they will rely on and communicate that decision to their solicitor and the court;
  8. exercise the right to challenge jurors;
  9. make a defence or answer to the charge.

or any other ground a court considers to be relevant.

Mental Health or Cognitive Impairment Defence

The defence of mental health impairment or cognitive impairment is a complete defence. If at the time of the offence you were affected by a mental health impairment and/or cognitive impairment, you will not be held criminally responsible for the offence.

To raise this defence, you have to prove to the court on the balance of probabilities that you did not know the nature and quality of the act or that it was wrong.

If this defence is successfully raised and a special verdict of act proven but not criminally responsible is determined, the court may make at least one of the following orders:

  1. that the defendant be remanded in custody pending the making of a further order under the Act;
  2. that the defendant be detained in the place and manner that the court thinks fit until released by due process of law;
  3. the defendant’s unconditional or conditional release from custody; or
  4. any other orders the court thinks appropriate.

If the court orders a person detained at a mental health facility as a forensic patient, their detention will be reviewed by the Mental Health Tribunal every 6 months. The Mental Health Tribunal can order a person’s release if satisfied that they are not a serious danger to the community.

Mental Health Applications in the Local Court

A Magistrate may dismiss a charge under section 14 of the Act. This allows a person suffering from a mental health or cognitive impairment to avoid a criminal record.

A Magistrate will discharge the defendant:

  1. into the care of a responsible person, with or without conditions; or
  2. on condition that they attend on a person or at a place specified by the Magistrate for assessment, treatment, or support for their mental health impairment or cognitive impairment; or
  3. unconditionally.

Who is a Responsible Person? 

A ‘responsible person’ includes health professionals such as a psychologist, psychiatrist, counsellor or general practitioner. They can also be a parent or family member.

What is a Mental Health Treatment or Support Plan? 

A mental health treatment or support plan means a plan outlining programs, services or treatments or other support that may be required to address a defendant’s mental health impairment or cognitive impairment. It can last for up to 12 months and may include requirements such as regularly seeing a psychologist, psychiatrist, or counsellor or taking prescribed medication.

What if I Breach a section 14 Order?

If you fail to comply with a condition in a section 14 order within 12 months of your discharge a Magistrate may deal with your charge as if you had not been discharged, placing you at risk of being convicted or incurring other penalties. If you have been charged with an offence and believe that you suffer from a mental health or cognitive impairment it is important to get into contact with a lawyer. Contact us at Mid Mountains Legal for guidance and assistance applying for a dismissal of charges by a section 14 order.

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