NSW Act Establishes Statutory Defences for Mental Health & Cognitive Impairment

Friday 26 June 2020 @ 3.25 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On 25 June 2020, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") received assent. The Act repeals, rewrites and renames the Mental Health (Forensic Provisions) Act 1990 (“the 1990 Act”). The purpose of the Act is to implement reforms recommended by the NSW Law Reform Commission in two forensic health reports titled “Diversion” (“2012 Report”) and “Criminal Responsibility and Consequences” (“2013 Report”). 


A substantial effect of the Act is the introduction of statutory definitions for "mental health impairment" and "cognitive impairment". These are extensively described in sections 4 and 5 of the Act.

Summary Proceedings

Under the 1990 Act, diversion orders apply only to offences dealt with summarily in the Local Court. As the name suggests, diversion orders are intended to divert individuals charged with low-level offending who have a mental health or cognitive impairment from the criminal justice system and into care, treatment, support and supervision. The Act makes three amendments to the diversion orders regime under section 32 of the 1990 Act:

  1. The statutory definitions of “mental health impairment” and “cognitive impairment” in Part 1 of the Act will be used to provide a clear clinical benchmark for determining diversion orders.
  2. The Act provides a non-exhaustive list of considerations a magistrate may refer to when making a diversion decision.
  3. Under the 1990 Act, a magistrate could call a person subject to a diversion order if they had not complied with their treatment or support plan up to six months from the date of the order. The Act will extend this period to 12 months.

Defence of Mental Health Impairment or Cognitive Impairment

Historically, the defence of mental illness was defined by a common law test (M’Naghten’s test) which resulted in a special verdict of “not guilty by reason of mental illness”. The Act replaces the common law defence with a statutorily defined test which results in a verdict of “act proven but not criminally responsible” due to mental health or cognitive impairment.

The Second Reading Speech summaries the new statutory defence as follows:

The statutory test of the bill enables a person to show that they were not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or cognitive impairment, or both, that had the effect that the person "did not know the nature and quality of the act", or "did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong)".

The Second Reading Speech notes that part of the reasoning in changing the defence is that the phrase “not guilty” in the special verdict of “not guilty by reason of mental illness” creates trauma and pain for victims and their families as it implies that the defendant did not commit the act. The definition of an act includes an omission or a series of acts or omissions. The Second Reading Speech also indicates that the Act accommodates for the case where one impairment is insufficient to meet the requisite threshold as the phrase “mental health impairment or cognitive impairment, or both” allows coexisting diagnosis to be considered together. Moreover, under the common law defence, the court is required to advise the jury of the consequences of the defence and provide a direction for the jury not to take those consequences into account in their finding. Under the new statutory defence, this jury direction will become a statutory requirement.

Fitness to Stand Trial

Following recommendations of the Law Reform Commission and extensive stakeholder consultation, the Act establishes a statutory equivalent of the common law test (“Presser test”) for determining whether a person is fit to stand trial. 

The Act also establishes new processes following a finding of unfitness. The provisions remove unnecessary delay by enabling a court to decide firstly, whether a person is unfit and secondly, whether a person may become fit some time in the future. This means that only individuals who may become fit to be tried are referred to the Tribunal. Those unlikely to become fit will be tried as soon as possible through the special hearings process, pending approval by the Director of Prosecutions. Furthermore, the Act establishes that the Tribunal’s determination of a person’s fitness to stand trial is final which prevents unnecessary back-and-forth between the courts and the Tribunal.

The Act largely replicates the provisions relating to special hearings with the exception of three new provisions implementing recommendations of the Law Reform Commission. These include provisions which:

  1. allow a court to modify court processes to facilitate the effective participation by the defendant if it is appropriate, 
  2. permit the non-appearance of the defendant and 
  3. require the court to consider that a person may not be able to demonstrate mitigating factors for sentencing and that the defendant could not enter a guilty plea. 

Prior to the Act receiving assent, if a person at a special hearing is found to be guilty on limited available evidence, they are given an estimate of the sentence the court would have ordinarily imposed (“the limiting term”). Similar to determinations of fitness to stand trial, this finding resulted in a back-and-forth process between the courts and Tribunal described as “cumbersome, time consuming and confusing.” The Act amends this process by stating that once a limiting term is established by the court, the Tribunal takes over the treatment, supervision of the person, including their disposition.

Other Provisions

The Act also contains extensive provisions replicating and clarifying provisions from the 1990 Act. These include provisions relating to the role and responsibilities of the Tribunal and  Tribunal proceedings. The Act also retains substantial amendments made to the 1990 Act in 2018 following the Wealey Review. The 2018 reforms most notably included the establishment of the Victims Register which acknowledges the rights of victims of forensic patients. Notably, Part 6 of the Act brings the scheme permitting the extension of forensic patient status in some circumstances into what will be the body of the Act from the Schedule.

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Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Bill and supporting documents available from TimeBase's LawOne Service

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