Changes to Section 32 and the NSW forensic mental health law

Section 32 has seen significant changes under new legislation in NSW.  New legislation commenced, revising the way defendants that suffer mental health issues and are charged with a criminal offence are dealt with by the courts.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 24 March 2021 replacing the old Mental Health (Forensic Provisions) Act 1990.  The new act was implemented following recommendations submitted to parliament as part of the NSW law reform commission’s 2013 review of the key forensic mental health provision (MHFPA).

What changes were made to the Mental Health Forensic Provisions Act 2020 (MHFPA)?

Previously, the MHFPA relied heavily on common law for a number of tests to determine if a person charged with a criminal offence was mentally ill or suffered cognitive impairment. They included determining if a person was fit to stand trial, whether the insanity plea could be entered as well as section 32 where a defendant could avoid the justice system, diverting them to access medical treatment.

To improve transparency in the court decision process, the NSW legislation now includes statutory tests as well as clear guidance to help magistrates when determining how the trial should proceed. The changes predominantly concern the same principal decision-making process and are as follows;

  • Diversion (old section 32): Additional guidance for the court for consideration when making a diversion order.
  • Fit to stand trial: Tests now included in statutory law providing guidance in determining if an accused person can reasonably understand and participate in their trial.
  • Insanity Plea: now includes statutory test and has been rewritten, using plain English, a better definition for mental illness, and new special verdict wording.

The new act has also removed old and outdated words, now written in plain English in order to enhance understanding of the complex tests and court proceedings. This is beneficial for all people involved in or following a trial including victims, witnesses, and the defendant. This, along with the statutory tests will not only improve efficiencies in the legal process but also improves the accessibility of criminal legislation.

Changes to Section 32 – Diversion;

The courts have long acknowledged that those with mental health problems be treated with particular care when being sentenced. This often extends leniency to people diagnosed with conditions such as anxiety, depression, post-traumatic stress disorder, autism, bipolar, and schizophrenia.

The old section 32 meant that people with mental health problems could be diverted out of the criminal system and into the care of their treating psychologist, psychiatrist, or general practitioner within the community.  Eligibility for a section 32 order included if you are developmentally disabled, suffering from mental illness, or a mental condition for which treatment is available in a hospital. It means you are not a mentally ill person (a mentally ill person is someone who presents a real risk of harm to themselves or others).

The new legislation has been largely modeled off section 32 with further guidance for the magistrate to take into consideration when making a diversion decision.

The new legislation stresses the importance of the safety of victims and the community and puts emphasis on this in relation to decisions by the court. As such, it now includes additional considerations for the magistrate such as the seriousness of the offence, criminal history, and the alternative sentencing options available to the court under criminal law.

The new legislation also requires more thorough details regarding treatment plans and supervising doctors’ information to be submitted by the defense when applying to have the charge differed. This includes whether the person has a history of diversion orders, whether there is a proper treatment plan available, and the details of those plans.

In addition to this, the magistrate is now empowered to call the defendant back to court within an extended 12 month period from when the order was made, should the defendant re-offend and/or not comply with the treatment. Previously the magistrate had only 6 months to do so.

Changes to Fit to Stand Trial

Every Australian is entitled to a normal trial that they can participate in and understand. Therefore, if this is not possible due to a mental health condition or cognitive impairment, the defendant may be deemed unfit to stand trial.

A judge has previously been empowered to decide whether a defendant is fit to stand trial based on criteria set out in common law referred to as the presser test. The presser test was largely modeled upon the definition of fitness to plead as outlined in Smith J in R v Presser [1958] VR 45 Smith J.

The changes to the legislation include a statutory test with key criteria that the magistrate is to use as guidance in determining whether a person is fit to stand trial. It states;

“a person is taken to be unfit to be tried for an offence if the person because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following—

    • understand the offence the subject of the proceedings,
    • plead to the charge,
    • exercise the right to challenge jurors,
    • understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
    • follow the course of the proceedings so as to understand what is going on in a general sense,
    • understand the substantial effect of any evidence given against the person,
    • make a defence or answer to the charge,
    • instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,
    • decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.”

NSW Government, Mental Health and Cognitive Impairment Forensic Provisions Act 2020 No 12, Part Four, Division 1, Section 38, Current version for 24 March 2021 to date (accessed 3 April 2021 at 9:55am)

The new legislation also provides additional guidance to the courts when determining their fitness to stand trial now and into the future. Now, the court must also determine, based on the balance of probabilities, if in the next 12 months the defendant;

    • may become fit to be tried for the offence, or
    • will not become fit to be tried for the offence.

This change is likely to improve efficiencies in court proceedings, having matters dealt with faster and cutting out inefficient processes following a court’s finding that a person is unfit to stand trial.

Changes to the Insanity Defense (previously section 38)

Australian law recognises that those with mental health conditions may sometimes lack the ability to reason or properly understand the nature of their actions as a result of those conditions. Therefore, a person suffering from a mental health condition or cognitive impairment should not be criminally responsible for an offence if they were suffering from the condition when the offence took place. This entitles people suffering from such mental impairments to evade justice for serious crimes.

The insanity defense has, to date, been based on a common law test and definition of ‘mental illness’ based on an old definition from M’Naghten, an 1840s case. It carried a special verdict of ‘not guilty by reasons of mental illness’.

This has been updated in the new legislation to redefine ‘mental illness’ from ‘disease of the mind’ to ‘mental health impairment or cognitive impairment’ and to replace the ‘not guilty special verdict’.

It was felt that this verdict, including ‘not guilty’ failed to adequately acknowledge that a crime had been committed. This was a major concern for victims and so has been updated in the new legislation. The new act includes a special verdict of ‘act proven by not criminally responsible’, acknowledging that the person understands that an act with consequences has by made by them.

The new mental health legislation now also includes a statutory test to determine if the defendant should be held responsible for an act they have committed.

Under section 28, Defence of mental health impairment or cognitive impairment, the legislation states;

“A person is 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 a 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).”

NSW Government, Mental Health and Cognitive Impairment Forensic Provisions Act 2020 No 12, Part 3, Section 28, Defence of mental health impairment or cognitive impairment, Current version for 24 March 2021 to date (accessed 3 April 2021 at 9:55am)

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