Last updated 5 August 2016     This chapter is currently under review.

References to the court

To make a reference to the Mental Health Court, there must be reasonable cause to believe that a person who is alleged to have committed an indictable offence:

  • is mentally ill or was mentally ill when the alleged offence was committed
  • has an intellectual disability of a degree that issues of unsoundness of mind, diminished responsibility or fitness for trial should be considered by the Mental Health Court (s 256 Mental Health Act 2000 (Qld) (Mental Health Act)).

Referrals can be made by the:

  • person or the person’s legal representative
  • Attorney-General
  • Director of Public Prosecutions
  • Director of Mental Health if the person is receiving treatment for mental illness (s 257 Mental Health Act).

A reference can only be made if the person is charged with an indictable offence, but if there are also charges of simple offences they can be considered by the Mental Health Court.

A reference should be filed in the registry of the Mental Health Court, using the approved form, together with a copy of any expert’s report on the expert’s examination of the person (s 258 Mental Health Act).

The court proceedings are then suspended until the Mental Health Court has made a decision on the reference (s 259 Mental Health Act). A reference does not prevent a court granting or refusing the person bail, nor does it prevent the prosecution being discontinued by the Director of Public Prosecutions.

Withdrawing a reference

An application to withdraw a reference can be made by the person who made the reference and in some cases by the person who is the subject of the reference, by filing a notice at the hearing (s 261 Mental Health Act). The Mental Health Court has to grant the application unless that would be contrary to the interests of justice (s 263 Mental Health Act).

Mental Health Court decisions on references

The Mental Health Court must decide whether the person was of unsound mind when the alleged offence was committed. If the charge is murder and the court decides the person was not of unsound mind at the time, it must decide whether the person was of diminished responsibility when the alleged offence was committed (s 267 Mental Health Act).

Unless the Mental Health Court has made a decision that the person was of unsound mind at the time of an alleged offence or at the time of an alternative offence, it must decide whether the person is fit for trial (s 270 Mental Health Act).

If the court decides the person is unfit for trial, the court must also decide whether the unfitness for trial is of a permanent nature (s 271 Mental Health Act).

Consequences of decisions

Finding of unsoundness of mind

If the Mental Health Court decides that the person was of unsound mind at the time of the alleged offence, the criminal proceedings are discontinued unless the person exercises the right to go to trial (s 281 Mental Health Act).

The court can make a forensic order, detaining the person for treatment in an authorised mental health service or, in some cases, in a high security unit (s 288 Mental Health Act).

In some cases, if the person has an intellectual disability, the Mental Health Court may alternatively make a forensic order detaining the person in the forensic disability service established under the Forensic Disability Act 2011 (Qld). This Act complements the Mental Health Act and applies to the involuntary treatment of the person and their care, support and protection.

If the Mental Health Court makes a forensic order, it can also order limited community treatment, allowing the person to remain in the community while being treated (s 289 Mental Health Act).

Finding of diminished responsibility

On a charge of murder, a finding of diminished responsibility has the effect of reducing the charge to manslaughter and, if the person is fit for trial, the criminal proceedings would continue on that charge (s 282 Mental Health Act).

Finding of fitness for trial

If the Mental Health Court decides the person is fit for trial, it must order that proceedings for the offence be continued according to law (s 272 Mental Health Act). It may then order that the person be remanded in custody or on bail, or order that the person be detained in a stated authorised mental health service until granted bail or brought before a court (s 273 Mental Health Act).

Finding of unfitness for trial

If the Mental Health Court finds a person unfit for trial, it can make a forensic order under which the person can be detained for treatment in an authorised mental health service or a high security unit, or, if the person has an intellectual disability, in the forensic disability service (s 288 Mental Health Act). It can also make an order for limited community treatment, allowing the person to be treated and monitored in the community (s 289 Mental Health Act).

The court must make a forensic order if it finds that the unfitness for trial is not permanent. The Mental Health Review Tribunal will then review the person’s fitness for trial periodically.

If a person is found permanently unfit for trial, the court proceedings are discontinued (s 283 Mental Health Act). If the Mental Health Court finds that it is not of a permanent nature, the proceedings are stayed until the Mental Health Review Tribunal, reviewing the matter, finds that the person is fit for trial (s 280 Mental Health Act).

Disputes about the facts

Doubt about whether the person committed the offence

The Mental Health Court must not make a decision about unsoundness of mind or diminished responsibility if it is satisfied that there is reasonable doubt the person committed the alleged offence. All that is necessary for there to be a ‘reasonable doubt’ is that the person disputes committing the alleged offence, unless the dispute is simply as a consequence of the person’s mental condition.

That does not prevent the court from making a decision on an alternative offence (s 268(3) Mental Health Act). For example, if the Mental Health Court was satisfied that there was a reasonable doubt that a person had committed an alleged offence of attempted murder, but there was no dispute that an alternative offence of grievous bodily harm was committed, it could make a decision on the alternative.

Dispute relating to facts substantially material to an expert opinion

The Mental Health Court must not make a decision about unsoundness of mind or diminished responsibility if satisfied that a fact substantially material to the opinion of an expert witness is sufficiently in dispute that it would be unsafe to make the decision. A substantially material fact could include something:

  • that happened before, at the same time as or after the alleged offence was committed
  • about the person’s past or present medical or psychiatric treatment (s 269 Mental Health Act).

Appeals from decisions of the Mental Health Review Tribunal

The Mental Health Court also hears appeals from decisions of some decisions of the Mental Health Review Tribunal, such as a decision to confirm an involuntary treatment order or a forensic order, a decision by the tribunal on fitness for trial or a transfer decision (s 319 Mental Health Act).