Managing mental illness can be complex and it is important to know that you are not alone. A mental illness is a clinically diagnosable illness affecting a person’s thinking, emotional state, perception or memory.
If you have been charged with a criminal offence while being diagnosed with a mental illness you may have to go to the Mental Health Court or the Mental Health Review Tribunal. These are special Courts that 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 you or someone you know is at immediate risk of harm to yourself or others, call 000.
Call 13 11 14 for Lifeline’s Crisis Counselling service or 1300 224 636 for BeyondBlue.
Mental Health Act 2016
A mental illness is legally defined under the Mental Health Act 2016 s 10(1), as “….a condition characterised by a clinically significant disturbance of thought, mood, perception or memory”.
The Mental Health Act 2016 s 3(1) states its main objectives are:
- to improve and maintain the health and wellbeing of people who have a mental illness who do not have the capacity to consent to be treated.
- to enable people to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial.
- to protect the community if people diverted from the criminal justice system may be at risk of harming others.
The Mental Health Act 2016 affects only a small number of people with mental illness (as it does not generally provide for voluntary treatment for mental illness). It may apply to your situation if:
- there are concerns about your mental health and it is determined there is no less restrictive way to ensure you receive appropriate treatment for your mental illness.
- you have been charged with a criminal offence and there are concerns about your mental state at the time of the offence or fitness for trial.
Being charged with an offence
If you have been charged with a criminal offence while diagnosed with a mental illness, you may have to go to a special Court called 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 have been charged with a criminal offence while being diagnosed with a mental illness.
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