Last updated 31 January 2018

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).