The Mental Heath and Cognitive Provisions Act 2020 ("the new Act") replaces the Mental Health (Forensic Provisions) Act 1990 ("the former Act") and refines various aspects of mental health considerations as they apply to criminal proceedings. Among other things, the new Act:

1. provides for criminal procedures concerning offences where defendants or accused have mental heath impairments or cognitive impairments;
2. concerning the Local Court in summary proceedings including indictable charges tried summarily and related Bail Act 2013 proceedings (but not committal proceedings), clarifies powers and procedures concerning diversion of defendants with mental health or cognitive impairments by conditional or unconditional discharge without conviction in a similar manner to s 32 of the former Act;
3. concerning criminal proceedings in the District and Supreme Courts, replaces the special verdict of not guilty by reason of mental illness with a special verdict of "act proven but not criminally responsible";
4. provides a statutory test for whether an accused is fit to be tried;
5. provides for the treatment, care and detention of forensic patients and prisoners who have mental illness or other condition that may be treated in a mental health facility and the powers of the Mental Health Review Tribunal to review and make orders about them;
6. updates the Crimes Act 1900 concerning the offence and partial defence of infanticide and the partial defence of substantial impairment by abnormality of mind.

Rationale for the new Act

In the Second Reading Speech for the Mental Health and Cognitive Forensic Provisions Bill 2020, the Attorney General stated that the proposed new Act, "aims to recognise that people who come into contact with the criminal justice system who have mental health impairment or cognitive impairment may require a legal response different from the response to those who commit crimes wilfully" (Hansard, Legislative Assembly, 3 June 2020).

Local Court

Concerning proceedings in the Local Court, the new Act is generally similar to the former Act but there are significant variations and additions which include the following:

1. the option of diversion by conditional or unconditional discharge applies to defendants who are "cognitively impaired" (which is defined in s 5 more widely than under the former Act) and also to those who have a "mental health impairment" as defined in s 4;
2. s 15, which provides a non-exhaustive list of matters a magistrate may consider in determining whether to make a diversionary order;
3. if a magistrate suspects that a defendant has failed to comply with a condition of a diversion discharge, the magistrate may within 12 months of the discharge, order the defendant to appear and may then deal with the charge as if the defendant had not been discharged: s 16.

In the Second Reading Speech for the Mental Health and Cognitive Forensic Provisions Bill 2020, the Attorney General noted that orders under s 32 of the former Act were made in fewer than 2% of criminal cases in the Local Court, with even fewer under the former s 33.

Criminal proceedings in the Supreme and District Courts

(a) Defence of mental health impairment or cognitive impairment

The previous defence of not guilty by reason of mental illness, according to McNaughten's Case (1843) 10 C & F 200; 8 ER 718, is replaced by a similar statutory defence of mental health impairment or cognitive impairment under s 28. The question of whether a defendant had one or both of these conditions at the relevant time is a question for the jury (if there is a jury) determined on the balance of probabilities. Section 29 sets out certain matters the judge must explain to the jury concerning the defence. By s 30, if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established, the jury must return a special verdict of "act proven but not criminally responsible". In the Second Reading Speech for the Mental Health and Cognitive Forensic Provisions Bill 2020, the Attorney General made it clear that this formulation lessens the pain and trauma for a victim and family because the previous words of "not guilty" by reason of mental illness "intimated that the defendant had not done the act". The Attorney General also noted that, under the common law mental illness rules, very few people were found "not guilty by reason of mental illness" and that in 2018–2019, only 30 people were referred to the Mental Health Review Tribunal.

(b) Fitness to stand trial and special hearings

Section 36 now provides a statutory test to determine whether a person is unfit to be tried instead of the previous common law test as per R v Presser [1958] VR 45. By s 37, a defendant's fitness should be raised before arraignment, but can be raised at any time in the proceedings. Section 38 provides that the question of unfitness is to be determined on the balance of probabilities. Section 39 provides that the court, the defendant or the prosecutor may raise the question of the accused's unfitness to be tried. By s 41(1), the question of a defendant's unfitness to be tried for an offence is to be determined by the judge alone.

The procedure concerning references to the Mental Health Review Tribunal following a finding of unfitness to be tried has been refined. Unlike the previous position, not all cases where a defendant is found unfit must be referred to the Tribunal before a special hearing is held. Now, only those who may become fit to be tried will be referred to the Tribunal. If the court determines that a person found unfit is unlikely to ever become fit for trial, that person is to be tried through the special hearing process as soon as possible and without referral to the Tribunal: s 48.

Amendments to the Crimes Act 1900

Infanticide under s 22A
The terminology of this offence has been modernised "in accordance with medical and social understandings of birth and motherhood" (Hansard, Second Reading Speech, Legislative Assembly, 3 June 2020).

Substantial impairment by abnormality of mind
The partial defence to murder by s 23A becomes substantial impairment because of mental health impairment or cognitive impairment.

The new Act will be reproduced in Criminal Law NSW and annotations will be added in forthcoming updates.

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