New South Wales Consolidated Acts

MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020

- As at 19 February 2024 
- Act 12 of 2020 

TABLE OF PROVISIONS

           Long Title

   PART 1 - PRELIMINARY

   1.      Name of Act
   2.      Commencement
   3.      Definitions
   4.      Mental health impairment
   5.      Cognitive impairment
   6.      References to juries and matters determined by a judge alone

   PART 2 - SUMMARY PROCEEDINGS

           Division 1 - Preliminary

   7.      Interpretation
   8.      Application of Part
   9.      Magistrate may make order at any time
   10.     Means by which Magistrate may be informed
   11.     Magistrate to state reasons for decisions

           Division 2 - Defendants with mental health impairments or cognitive impairments

   12.     Defendants with mental health impairments or cognitive impairments
   13.     Adjournment of proceedings
   14.     Orders Magistrate may make
   15.     Considerations of Magistrate when making order
   16.     Failure of defendant to comply with condition of order
   17.     Reports from treatment providers

           Division 3 - Mentally ill or mentally disordered persons

   18.     Mentally ill or mentally disordered persons
   19.     Orders Magistrate may make
   20.     Community treatment orders
   21.     Proceedings before authorised justice
   22.     Orders may relate to transfer of defendants by certain persons
   23.     Dismissal of charges
   24.     Bail

           Division 4 - General

   25.     Transfer from correctional centre or detention centre
   26.     Regulations

   PART 3 - DEFENCE OF MENTAL HEALTH IMPAIRMENT OR COGNITIVE IMPAIRMENT

   27.     Application of Part
   28.     Defence of mental health impairment or cognitive impairment
   29.     Explanation to jury
   30.     Effect of finding of act proven but not criminally responsible because of mental health impairment or cognitive impairment
   31.     Special verdict where defendant and prosecutor agree on impairment
   32.     Special verdict not available for alternative offence
   33.     Effect of special verdict
   34.     Referral of defendant to Tribunal

   PART 4 - FITNESS TO STAND TRIAL

           Division 1 - Preliminary

   35.     Application of Part
   36.     Fitness test
   37.     When question of unfitness may be raised
   38.     Question of unfitness to be determined on balance of probabilities
   39.     Court and other persons may raise question of unfitness

           Division 2 - Procedure when question of unfitness to be tried raised

   40.     Procedure where question of unfitness raised before arraignment
   41.     Procedure where question of unfitness raised after arraignment
   42.     When an inquiry is required or may not be held
   43.     Actions pending inquiry
   44.     Inquiry procedures
   45.     Presumptions as to findings about unfitness
   46.     Finding after inquiry that defendant is fit to be tried
   47.     Finding after inquiry that defendant is unfit to be tried
   48.     Finding after inquiry that defendant will not become fit to be tried within 12 months
   49.     Tribunal review and court orders after finding that defendant may be fit to be tried within 12 months
   50.     Finding by Tribunal that defendant is fit to be tried
   51.     Finding by Tribunal that defendant will not become fit to be tried within 12 months
   52.     Committal proceedings following finding of fit to be tried
   53.     Advice as to whether further proceedings are to be taken

           Division 3 - Special hearings

   54.     Nature of special hearings
   55.     When special hearings are held
   56.     Procedure for special hearings
   57.     Amendment of indictment
   58.     Juries at special hearings
   59.     Verdicts at special hearings
   60.     Verdict of not guilty
   61.     Special verdict of act proven but not criminally responsible because of mental health impairment or cognitive impairment
   62.     Verdict of offence committed on limited evidence available
   63.     Penalties after finding of guilt
   64.     Commencement of limiting terms
   65.     Referral to Tribunal after limiting term imposed
   66.     Reports about defendant
   67.     Referral of defendant to Tribunal following special verdict
   68.     Effect of finding that offence was committed on other proceedings for the offence

   PART 5 - FORENSIC PATIENTS AND CORRECTIONAL PATIENTS

           Division 1 - General principles and concepts

   69.     Objects
   70.     Treatment, care and detention of patients
   71.     Application of provisions of Mental Health Act 2007 to forensic patients and correctional patients
   72.     Forensic patients
   73.     Correctional patients
   74.     Role of objects and principles provisions

           Division 2 - General provisions relating to reviews by Tribunal

   75.     Matters Tribunal must consider that apply to all orders
   76.     Unlawful absence from mental health facility or other place
   77.     Extension of mandatory review period

           Division 3 - Reviews of forensic patients by Tribunal

   78.     Mandatory reviews of forensic patients
   79.     Tribunal may review patient at any time
   80.     Reviews of persons found unfit to be tried for an offence
   81.     Orders that may be made on reviews generally
   82.     Orders for transfer of forensic patients
   83.     Orders for release of forensic patients
   84.     Matters that Tribunal must consider when determining whether to release a forensic patient
   85.     Conditions that may be imposed by Tribunal on release of forensic patients

           Division 4 - Transfer of correctional patients, forensic patients and other persons in custody

   86.     Transfer from correctional centre or detention centre by Secretary
   87.     Transfer back to correctional centre or detention centre
   88.     Requests for transfer to correctional centre or detention centre
   89.     Reviews by Tribunal of persons awaiting transfer to mental health facility
   90.     Reviews of patients transferred under this Division

           Division 5 - Reviews of correctional patients

   91.     Mandatory reviews of correctional patients
   92.     Periodic and other reviews of correctional patients
   93.     Tribunal may review patient at any time

           Division 6 - Leave of absence

   94.     Tribunal may grant leave for forensic patients
   95.     Commissioner of Corrective Services may grant leave for correctional patients
   96.     Leave for forensic patients and correctional patients in emergencies or special circumstances
   97.     Appeals against decisions of Secretary
   98.     Grants of leave do not affect sentences or limiting terms

           Division 7 - Community treatment orders

   99.     Community treatment orders
   100.    Reviews of persons in custody who are subject to community treatment orders

           Division 8 - Termination of status as patient and other status changes

   101.    Termination of status as forensic patient
   102.    Effect of unlawful absence on limiting term
   103.    Extension of status as forensic patient
   104.    Termination of status as correctional patient
   105.    Classification of patients as involuntary patients
   106.    Limits on classification of forensic patients
   107.    Release from detention on ceasing to be a forensic patient or correctional patient
   108.    Person who ceases to be forensic patient or correctional patient may become voluntary patient

           Division 9 - Enforcement

   109.    Breach of orders for release
   110.    Execution of apprehension orders
   111.    Apprehension of persons not permitted to be absent from mental health facility
   112.    Apprehended person may seek reconsideration by Tribunal
   113.    Aiding or permitting escape
   114.    Issue of warrants for apprehension of persons outside State and other persons

           Division 10 - Miscellaneous

   115.    Transfer and transport of patients
   116.    Effect of detention in mental health facility on sentence and parole
   117.    Security conditions for patients
   118.    Planning for release and leave
   119.    Retaking of escapees
   120.    Forensic patients and correctional patients in the community may be detained and treated under Mental Health Act 2007

   PART 6 - EXTENSION OF STATUS AS FORENSIC PATIENT

           Division 1 - Extension orders

   121.    Extension orders for forensic patients
   122.    Forensic patients in respect of whom extension orders may be made

           Division 2 - Application for extension orders

   123.    Minister may apply for extension order
   124.    Application for extension order
   125.    Requirements with respect to application
   126.    Pre-hearing procedures

           Division 3 - Determination of applications

   127.    Determination of application for extension orders
   128.    Term of extension orders
   129.    Continuation of orders relating to forensic patients

           Division 4 - Interim extension orders

   130.    Interim extension orders
   131.    Term of interim extension orders
   132.    Interim extension orders to continue in force for 24 hours in certain circumstances

           Division 5 - Extension orders or interim extension orders may be varied or revoked

   133.    Extension order or interim extension order may be varied or revoked

           Division 6 - Supreme Court proceedings

   134.    Nature of proceedings
   135.    Right of appeal
   136.    Costs not to be awarded against forensic patient
   137.    Preservation of Supreme Court jurisdiction

           Division 7 - Miscellaneous

   138.    Minister may require provision of certain information
   139.    Information sharing
   140.    Protection of certain persons from liability
   141.    Hearings
   142.    Bail Act 2013 not to apply
   143.    Rules of court
   144.    Qualification of psychiatrists

   PART 7 - TRIBUNAL PROCEEDINGS

           Division 1 - Provisions relating to proceedings

   145.    Victims and reviews by Tribunal
   146.    Tribunal may amend or impose conditions on release or leave orders on application of victims
   147.    General matters relating to Tribunal functions
   148.    Forensic Division to exercise functions

           Division 2 - Appeals

   149.    References to matters of law
   150.    Appeals against Tribunal determinations generally
   151.    Appeals against release decisions
   152.    Making of appeals
   153.    Decisions on appeal
   154.    Rehearings by Tribunal
   155.    Tribunal not liable for costs

   PART 8 - VICTIMS REGISTER

   156.    Victims Register
   157.    Notification to victims of reviews and other matters

   PART 9 - MISCELLANEOUS

   158.    Notification of expiry of limiting term or extension order
   159.    Duties of certain agencies
   160.    Tribunal to be notified if charges dismissed or proceedings end
   161.    Exchange of information
   162.    Functions of Commissioner of Corrective Services and Secretary of Department of Communities and Justice
   163.    Proceedings for offences
   164.    Delegation
   165.    Orders for transfer of forensic patients
   166.    Regulations
   167.    (Repealed)
           SCHEDULE 1
           SCHEDULE 2
           Schedule 3 (Repealed)