Mental Health and Criminal Justice

Mental Health and Criminal Justice

Persons Charged with Criminal Offences

A person’s criminal charges may be referred to the Mental Health Court for determination of whether the person should be given a defence due to their mental illness or intellectual disability. This can result in a finding that a person is not fit for trial, temporarily or permanently. As a result, the criminal proceedings may be stayed (suspended or put on hold) in the case of temporary unfitness; or discontinued in the case of permanent unfitness.

See also:

• What happens to charges if a patient has a mental illness?
• What happens to criminal charges if a patient has an intellectual disability?
• Fitness for Review Trial

Assessment of People in Custody

The Mental Health Act 2016 (Qld) (Mental Health Act) makes provisions for people in custody who may require assessment or treatment for mental illness to be transported to an authorised mental health service for that purpose. This can happen in various situations:

• If a recommendation for assessment is made for a person who is in custody, the person can be transported to the inpatient unit of an authorised mental health service for assessment (s 65).
• If a person in custody is subject to a treatment authority, a forensic order or a treatment support order, they can be transported to the inpatient unit of an authorised mental health service to receive treatment and care for their mental illness (s 66).
• In certain circumstances, a person in custody who is not subject to a recommendation for assessment, a treatment authority, a forensic order or a treatment support order can be transported with their consent to the inpatient unit of an authorised mental health service to receive treatment and care for their mental illness (s 67).

Classified Patients

A person who is transported from custody to the inpatient unit of an authorised mental health service in these situations becomes a classified patient (s 64 Mental Health Act).

The classified patient provisions are intended to enable people in custody who are or become acutely unwell to be transferred to an authorised mental health service so that they can receive appropriate care and treatment.

A person stops being a classified patient if later returned to custody (s 83 Mental Health Act), or if the Mental Health Court makes a decision on a reference in relation to the person (s 84 Mental Health Act).

The Mental Health Act also makes provisions for a person who has been transported under these provisions to an authorised mental health service to remain there if it is considered clinically appropriate (s 74 Mental Health Act), or to be returned to custody (ss 82, 671 Mental Health Act).

Court Examination Orders Made by the Mental Health Court

When a person is in custody they can be transferred to an authorised mental health service. If the court orders that the person be examined by a stated psychiatrist (a court examination order), the person may in certain circumstances be transported to an authorised mental health service for that purpose (ss 74, 670, 671 Mental Health Act).

Reference and for more information: Queensland Law Handbook

How to Get Legal Advice

Legal Aid may give legal advice if the person has been charged with an offence  while diagnosed with a mental illness.

Legal Aid may be able to provide representation:

• if they are appearing in the Mental Health Court
• if they are appearing in the Mental Health Review Tribunal for matters including:
  • electroconvulsive therapy (ECT) applications
  • all hearings involving minors
  • hearings of a person’s fitness for trial
  • when the Attorney-General is represented.

Legal Aid also may be able to give advice on appeals from matters in the Mental Health Review Tribunal to the Mental Health Court.

Legal Aid doesn’t give advice about general mental health matters. Contact a mental health or counselling service  for help and advice.