Criminal Matters

Mental Health Act Flowcharts for Mental Health and Criminal Matters

If you’re charged with an offence, you may have to appear in court.

The police don’t have to arrest you to charge you with an offence.

There are 4 ways you can be charged with an offence and made to go to court:

the police could arrest you, and keep you in custody until they can take you to court
you could be given a Notice to appear (which is similar to a summons)
you could be given a Complaint and summons to appear in court
if you decide to oppose an infringement notice (eg attend court instead of paying a fine).

If you’ve been charged with an offence and you have to go to court, you should get legal advice.

Visit: Legal Aid

Criminal Responsibility

In criminal law, a mental illness may result in a person not being criminally responsible for an offence they are charged with, or it may make them unfit for trial. The Criminal Code Act 1899 (Qld) deals with these issues, but the Mental Health Act provides an avenue for people to be diverted from the criminal justice system so that these issues can be decided by the Mental Health Review Tribunal.

Criminal responsibility: unsoundness of mind and diminished responsibility

Under the Criminal Code Act 1899 (Qld) (Criminal Code), a person is not criminally responsible for an act or omission of an act if, at the time of doing the act or making the omission, the person is in such a state of mental disease or natural mental infirmity as to deprive the person of the capacity to:

understand what they are doing
control their actions
know that they ought not do the act or make the omission.

However, a state of mind resulting to any extent from intentional intoxication with alcohol or drugs is excluded.

When the charge is murder, the Criminal Code provides for a partial defence known as diminished responsibility. It refers to an abnormality of mind that has the effect of substantially impairing one or more of the capacities mentioned above. If diminished responsibility is established, the charge is reduced from murder to manslaughter.

Fitness for trial

Case law has established the minimum standards of understanding that a person must have in order to be able to receive a fair trial, and therefore to be regarded as fit for trial. The Criminal Code recognises this in two provisions—s 613 (Want of understanding of accused person) and s 645 (Accused person insane during trial)—but draws on case law for the interpretation of these sections.

Where can unsoundness of mind, diminished responsibility and fitness for trial be decided?

These issues were traditionally decided by a jury in a criminal trial under the relevant provisions of the Criminal Code. Juries may still be called upon to decide any of these questions. However, the Mental Health Court is also able to decide questions of unsoundness of mind, diminished responsibility and fitness for trial, and many cases in which these issues arise are now diverted from the criminal courts to the Mental Health Court for that purpose.

Of unsound mind or unfit for trial

If the court decides that the defendant was of unsound mind at the time of the offence, or is permanently unfit for trial, it may make a forensic order, detaining them in an authorised mental health facility or a high security unit for treatment or care (possibly with limited community treatment).

In doing this, the court will consider the patient’s treatment, security needs and community safety.

Of unsound mind

A finding of unsoundness of mind means the person isn’t criminally responsible for their actions. The criminal proceedings against them are discontinued and the person can never be prosecuted in the criminal courts for this particular offence.

A person is considered not criminally responsible for an offence if, at the time, they were in such a state of mental disease or natural mental infirmity that they were deprived of the capacity to:

understand what they were doing
control their actions
know that they shouldn’t do the act or make the omission.

Doesn’t include a state of mind resulting, to any extent, from intentional intoxication or stupefaction either alone or in combination with another agent at the time of the offence.

Diminished responsibility

If the charge is murder, the Mental Health Court may find that, although a person was not of unsound mind, they did have a substantially impaired capacity to understand what they were doing, control their actions or know they shouldn’t do the act or make the omission.

If the court finds diminished responsibility, a murder charge is replaced with a manslaughter charge because a person whose capacities are substantially impaired has less criminal responsibility for their actions.

Unfit for trial

A person is unfit for trial if they can’t understand the nature of the trial proceedings or the meaning of entering a plea of guilty or not guilty, or can’t instruct their legal representatives. It may also mean they can’t endure their trial without their mental state seriously deteriorating.

A person may be temporarily or permanently unfit for trial.

Permanently unfit for trial – If the court decides the person is permanently unfit for trial, the criminal proceedings against them are discontinued.

Temporarily unfit for trial – If the court decides the person is unfit for trial temporarily, the court must make a forensic order. There are regular reviews of the person’s fitness for trial by the Mental Health Review Tribunal and the criminal proceedings continue once the person becomes fit for trial.

If the person remains unfit for trial for three years, criminal proceedings are discontinued. This is extended to seven years if the person is charged with an offence carrying a maximum sentence of life imprisonment.

Read about reviews of forensic patients.

Of sound mind or facts are disputed

If the facts of the case are disputed, or the court decides that the defendant was not of unsound mind when they committed the offence and is fit for trial, the case is returned to a criminal court to proceed in the usual way.

The defendant may be held in custody, granted bail, detained in an authorised mental health facility pending bail or trial, or granted limited community treatment in the community.

Types of Court Orders, includes:

Examination Order
Forensic Order
Non-contact Order
Confidentiality Order

For more information:
Court Decisions
Qld Law Handbook
Hearings in the Court
About the Mental Health Court
What Happens in a Hearing

Topics include:

How the court is constituted
How criminal cases are referred
Parties to the proceedings
Examination Orders
Inquiries into detention
What the court considers
What the court decides
Attending hearings
Publishing proceedings
Being notified of proceedings

The following diagram shows the options available to the Mental Health Court in making a decision in respect of a reference of a person’s mental condition and the consequential steps for review of the order by the MHRT and the associated criminal proceedings.

The blue boxes show the role of the MHRT in terms of review of the forensic order and review of the person’s fitness for trial.

Reference: mhrt.qld.gov.au/information-about/the-mental-health-court

Magistrates Court powers

If a simple offence is to be determined by a Magistrates Court, and the magistrate is reasonably satisfied, on the balance of probabilities, that the person charged:

was, or appears to have been, of unsound mind when the offence was allegedly committed or
is unfit for trial

the court may dismiss the complaint (s 172 Mental Health Act).

A ‘simple offence’ includes an indictable offence that can be heard in a Magistrates Court (s 171 Mental Health Act).

Alternatively, if satisfied that the person is unfit for trial but is likely to become fit for trial within six months, the magistrate may adjourn the hearing. If, after six months, the person is still apparently unfit for trial, the magistrate may dismiss the complaint (s 173 Mental Health Act).

If the complaint has been dismissed or adjourned, but the person does not appear to the magistrate to have a mental illness (e.g. a person might be intellectually impaired), the magistrate may refer the person to Queensland Health or to disability services for appropriate care or treatment (s 174 Mental Health Act).

If the charge before the Magistrates Court is an indictable offence, and the court is reasonably satisfied on the balance of probabilities:

that the person was, or appears to have been, of unsound mind when the offence was allegedly committed or
that the person is unfit for trial and, in addition:
that the nature and circumstances of the offence creating exceptional circumstance in relation to the protection of the community; and
a forensic order or treatment support order may be justified,

the magistrate may refer the matter of the person’s mental state to the Mental Health Court in relation to the indictable offence and any associated offence (s 175 Mental Health Act).

Magistrates also have power to make an examination order for a person charged with a simple offence (including an indictable offence that can be dealt with in the Magistrates Court). This can be done even if the magistrate has dismissed the complaint or adjourned the hearing, if the magistrate is reasonably satisfied that the person would benefit from being examined by an authorised doctor (s 177 Mental Health Act).

An examination report can be used in a number of ways, for example in deciding whether to make a reference to mental health, and may be provided to the authorised mental health service where the person is being treated (ss 180, 180B Mental Health Act).

District and Supreme Court powers

If a person before the District or Supreme Court has pleaded guilty to an indictable offence and, on the balance of probabilities, the court is reasonably satisfied that the person:

was, or appears to have been, of unsound mind (or, if the charge is murder, of diminished responsibility) when the offence was allegedly committed or
is unfit for trial,

the court may adjourn the hearing and refer the matter of the person’s mental state to the Mental Health Court, in relation to both the indictable offence and any simple offence that was to have been dealt with at the same time.

When that happens, the court may grant the person bail, remand the person in custody or, if the administrator of an authorised mental health service or alternatively the chief psychiatrist has agreed in writing, order that the person be detained there as an inpatient.

Reference: Qld Law Handbook

Reference by the person charged, their lawyer or the Director of Public Prosecutions

The person charged with a serious offence, their lawyer or the Director of Public Prosecutions may make a reference to the Mental Health Court provided they have reasonable cause to believe that the person:

was of unsound mind when the offence was allegedly committed (or of diminished responsibility if the charge is murder) or
is unfit for trial.

Court Reports for an existing Mental Health Consumer who is charged with a serious offence

A psychiatrist’s report may be requested by or on behalf of a person who is a patient in an authorised mental health service under a treatment authority, forensic order or treatment support order, and is charged with a serious offence. The expression ‘serious offence’ is defined in the Mental Health Act 2016 (Qld) (Mental Health Act), and refers in general to the more serious criminal offences under state law.

The request is to be made to the chief psychiatrist, who must direct the administrator of the health service to arrange for the report to be prepared.

Alternatively, the chief psychiatrist can direct that a psychiatrist’s report be arranged, even if there has been no request.

The report is then to be prepared within 60 days, which can be extended by the chief psychiatrist to up to 90 days. The report can also consider associated offences, which are offences alleged to have been committed at or around the same time as the serious offence.

Once the report is obtained, the chief psychiatrist must provide it to the patient or to whoever made the request, and to the administrator of the patient’s treating health service.

The chief psychiatrist will also give consideration as to whether to refer the matter of the patient’s mental condition to the Mental Health Court (s 101 Mental Health Act). This is one of the ways in which references are made to the Mental Health Court. The various ways references can be made are discussed below.

Reference: Qld Law Handbook

Who can make a reference to the Mental Health Court?

According to the Mental Health Act 2016 (Qld), a reference in relation to a person’s mental state can be made to the Mental Health Court in three different situations:

reference by the chief psychiatrist in relation to a serious offence (s 101

reference by a person who is charged with a serious offence, by their lawyer or the Director of Public Prosecutions (s 110)
reference by the Magistrates Court in relation to a person charged with an indictable offence (s 175)
reference by the Supreme Court or the District Court in relation to a person charged with an indictable offence (s 183).

There are different requirements, depending on who is making the reference. Note that references by the chief psychiatrist, the person who is charged or their lawyer, or the Director of Public Prosecutions can only be made in relation to a serious offence as defined. However, a reference can be made by the Magistrates, District or Supreme Court in relation to any indictable offence, even if it is not a serious offence. Also, a reference cannot be made in relation to a Commonwealth offence.

Reference by the chief psychiatrist

The chief psychiatrist may make a reference to the Mental Health Court in relation to a person charged with a serious offence only if satisfied that:

the person may have been of unsound mind when the serious offence was allegedly committed or may be unfit for trial and
having regard to the report and the protection of the community, there is a compelling reason in the public interest for the person’s mental state in relation to the serious offence to be referred to the Mental Health Court.

Applications to withdraw a reference

An application can be made by a person who made the reference to withdraw that reference. The Mental Health Court may refuse the application only if it considers that withdrawing the reference would be contrary to the interests of justice (ss 125–128 Mental Health Act).

Qld Law Handbook

When a reference has been made to the Mental Health Court, the court must decide whether the person was of unsound mind when the offence was allegedly committed or alternatively, if the charge is murder, whether the person was of diminished responsibility at the time.

However, the Mental Health Court may not decide these things if there is a substantial dispute about whether the person committed the offence, unless the dispute results from the person’s mental condition.

If the Mental Health Court finds that the person was of unsound mind, the criminal proceedings are discontinued. However, the Mental Health Court preserves the right of a defendant to elect to be tried in a criminal court despite the decision of the Mental Health Court.

If the court finds in relation to a charge of murder that the person was not of unsound mind but was of diminished responsibility, the charge is reduced to manslaughter. Provided the defendant is fit for trial, the criminal proceedings would then continue on the charge of manslaughter.

If the Mental Health Court decides the person was not of unsound mind at the time of the alleged offence, or the court is not able to decide because of a dispute, it must then decide whether the person is fit for trial.

If the Mental Health Court finds that the person is fit for trial, the criminal proceedings will continue according to law.

If the Mental Health Court finds that the person is not fit for trial, it must then decide whether the unfitness is temporary (in which case the criminal proceedings are stayed), or permanent (in which case the criminal proceedings are discontinued). If the Mental Health Court finds that the fitness for trial is temporary, the person’s fitness for trial must be reviewed by the Mental Health Review Tribunal at regular intervals (see Reviews by the Mental Health Review Tribunal below).

Reference: Qld Law Handbook

Being charged with an offence

If you’ve been charged with a criminal offence while diagnosed with a mental illness, you may have a reference to go to the Mental Health Court.

The Mental Health Court is a special hearing of the Supreme Court that makes decisions about criminal cases where the accused person may have a psychiatric or intellectual disability. This court can decide if a person was of unsound mind at the time the offence was committed, is temporarily unfit for trial, or is permanently unfit for trial.

If the person was of unsound mind at the time the offence was committed, or they are permanently unfit for trial, the Mental Health Court may make:

a forensic order giving authority for a person to be detained in an authorised mental health service for treatment or care, or
a treatment support order—involving less oversight than a forensic order, or
no order.

If the person is temporarily unfit for trial, the Mental Health Court must make either a forensic order or a treatment support order.

If the Mental Health Court decides to make a forensic order or a treatment support order, the court must also decide the category—inpatient or community.

A forensic order can only be revoked by the Mental Health Review Tribunal or the Mental Health Court if they are hearing an appeal against a Mental Health Review Tribunal decision. You should get legal advice if you’ve been charged with a criminal offence while being diagnosed with a mental illness. Reference: Legal Aid

Mental Health Court:

The Mental Health Court is constituted of a Supreme Court judge, who is assisted by two psychiatrists who sit beside the judge in court and provide advice to the judge about clinical matters.
The Mental Health Court has the jurisdiction to (s 639 Mental Health Act 2016(Qld)):

hear references to it of a person’s mental state in relation to criminal matters and to decide issues of unsoundness of mind, diminished responsibility and fitness for trial
hear appeals from the Mental Health Review Tribunal
review the detention of persons in authorised mental health services or in the forensic disability service, and to decide whether the detention is lawful.

If someone is charged with an offence, the Mental Health Court must decide whether the defendant is:

For more information: Court Decisions

Suspension of criminal proceedings

If a reference is made to the Mental Health Court of a person’s mental state in relation to an offence, the criminal proceedings are suspended until the Mental Health Court has made a decision on the reference or the reference is withdrawn (ss 616, 618 Mental Health Act). The suspension of the proceedings does not prevent a court from making decisions about bail or various procedural steps being taken including the discontinuation of the proceedings.

Assessment and treatment 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

Another situation in which a person who is in custody can be transferred to an authorised mental health service is when the person is the subject of proceedings in the Mental Health Court. 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: Qld Law Handbook

Legal Help

Do I need legal advice?

If you’ve been charged with a criminal offence while diagnosed with a mental illness, you should get legal advice.
You may need legal advice if:

you’re preparing to appear at the Mental Health Review Tribunal
you’ve been charged with a criminal offence and are going to the Mental Health Court or you want to be referred to the Mental Health Court.

How to get legal advice

Legal Aid may give legal advice if you’ve been charged with an offence while diagnosed with a mental illness.
Legal Aid may be able to provide representation:

if you are appearing in the Mental Health Court
if you 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 don’t give advice about general mental health matters. Contact a mental health or counselling service near you.

Your Rights

Innocent until proven guilty
The right to remain silent

Reference: Qld Law Handbook

The following organisations may also be able to give you legal advice

QAI Mental Health Legal Service provides legal advice and casework services for people who have matters before the Mental Health Review Tribunal, including treatment authorities (previously called involuntary treatment orders), reviews of forensic orders, fitness for trial, and more.
LawRight Mental Health Law Practice gives legal information and advice about involuntary treatment orders, the Mental Health Review Tribunal and other associated civil law issues arising as a result of a person’s mental health problem (eg housing or credit or debt law issues). The service also gives help and advocacy services to clients with treatment authority and ECT hearings in the Mental Health Review Tribunal.
Community Legal Centres give legal advice on a range of topics. Contact them to find out if they can help with your matter.
Caxton St Legal Service
Qld Law Society – Find a solicitor can refer you to a specialist private lawyer for advice or representation.

More Information

Police and Your Rights
Legal Aid – Police and Your Rights
Qld Law Handbook
Legal Aid – Making a complaint to Qld Police

Criminal Offences and Mental Health
Legal Aid – Criminal Offences and Mental Health

Information for defendants
Qld Courts – Defendants
Qld Law Handbook – Information for Respondents

Tips for your court hearing(this link includes a video education of the areas inside a court room.)
Family Court – Tips for your hearing + Video

Criminal Court Processes (not specific to Mental Health matters) Legal Aid – Criminal Justice
Qld Law Handbook
Legal Aid – Criminal Court Process

The Court System:
Qld Law Handbook – The Court System

Going to Court
Qld Courts – Going to Court

A guide to appearing in the Magistrates Court
Legal Aid – Guide to appearing in the Magistrates Court

Going to Magistrates Court (Arrest Court) the first time
Qld Law Handbook – Going to the Magistrates Court the first time

Going to trial in the Magistrates Court
Qld Law Handbook – Going to trial in the Magistrates Court

Pleading guilty in the Magistrates Court
Qld Law Handbook – Pleading guilty in the Magistrates Court

Peace and good behaviour Order
Qld Law Handbook – Peace and Good Behaviour Order

How to write a character reference
How to write a character reference

Information for witnesses
Qld Courts – Information for witnesses

Indigenous Families and Court
Family Court – Indigenous families Information

Criminal Matters – Overview

Mental Health Act Flowcharts for Mental Health and Criminal Matters