Last updated 31 January 2018

The Mental Health Act 2016 (Qld) (Mental Health Act) gives the Magistrates Court (including Childrens Court), District Court and Supreme Court powers to deal with cases where there is a concern about the mental state of a person charged with an offence. The powers include making a reference to the Mental Health Court in certain circumstances.

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.