SEARCH UPDATES TO LEGISLATION
1.0 – INTRODUCTION
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2.0 – The Purpose of the Mental Health Act 2000 (Qld)
Under section 5, the Act sets out to achieve this purpose by:
Providing for the detention, admission, assessment and treatment of persons having, or believed to have, a mental illness;
Establishing the Mental Health Review Tribunal to carry out reviews relating to involuntary patients, and to hear applications to administer or perform particular treatments; and
Establishing the Mental Health Court to decide (amongst other things) the state of mind of those persons charged with a criminal offence.
Section 5(e) asserts that when making a decision in relation to a forensic patient under the Act, the decision-maker must consider the protection of the community and the needs of a victim of an alleged offence to which the applicable forensic order relates. The Queensland Parliament added this section in early 2008 in response to a report ensuing from the Review of the Queensland Mental Health Act, in 2007 (colloquially known as the Butler Review).
The Butler Review made several recommendations in relation to the Act as a whole, but with a particular emphasis on improving the balance between the rights and freedoms of persons with a mental illness, the interests of victims of crime allegedly perpetrated by forensic patients, and the protection of the community.
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2.1 – Principles Underpinning the Act
Principles Underpinning the Act
An important aspect of the Mental Health Act 2000 (Qld) is the inclusion of certain principles that decision makers must take into account when administering the Act. In reflecting the substance of the UN Principles, Chapter 1 Part 3 asserts that certain principles should apply in the administration of the Act. For example, there should be consideration and respect for human rights, and, to the greatest extent practicable, a person should be encouraged to participate in decision making and receive treatment only where it is appropriate to advance and maintain their mental health and wellbeing.
The Act presumes that a person has the capacity to make decisions about the person’s psychiatric assessment, treatment, and their choice of an allied support person. An allied person can assist the person to communicate their views in relation to decisions about the person.
In addition, the principles intend to ensure that the specific circumstances of the person are taken into account; such as due consideration of a person’s unique cultural, religious, and linguistic needs.
A person’s right to confidentiality should be maintained in all circumstances except where specific provisions provide for the release of certain information.
The Right to Least Restrictive Treatment
Under section 9, a power or function performed under the Act relating to a person who has a mental illness must be exercised so that:
a) the person’s liberty and rights are adversely affected only where there is no less restrictive way to protect the person’s health and safety or to protect others; and
b) The adverse effect is the minimum necessary in all circumstances.
It is important to understand that mental health practitioners, such as psychiatrists, doctors and nurses, exercise almost exclusive authority to make decisions regarding the nature and substance of involuntary and forensic patients’ treatment.
The Act asserts that forensic bodies such as the Mental Health Court and the Mental Health Review Tribunal merely possess the jurisdiction to authorise health carers to establish, and then to administer treatment under the Act. Thus, the actual substance of the person’s treatment such as decisions to seclude, restrain or administer particular medications and their dosage cannot be determined by those forensic bodies. Such decisions are the responsibility of mental health practitioners appointed by the Director of Mental Health under section 499. However, there are exceptions in relation to the provision of restricted treatments, such as electroconvulsive therapy and psychosurgery, which require the Mental Health Review Tribunal’s approval according to Chapter 6 Part VI of the Act.
3.0 – Defining a Relevant Disability
Defining a Relevant Disability
For the purposes of this online resource, The Advocacy and Support Centre uses the term ‘disability’ to refer to those persons the law may consider either mentally ill or intellectually impaired under the Mental Health Act 2000 (Qld) (the Act).
From the outset, it is important that lawyers be aware that the existence of an intellectual disability, in and of itself, does not constitute a mental illness according to section 12(2)(h). However, the existence of an intellectual disability or an acquired brain injury (ABI) is relevant for the purposes of establishing fitness for trial and the possibility of a defence of unsoundness of mind or diminished responsibility.
ABI is a complex and individual disability. The brain can be damaged as a result of an accident, a stroke, alcohol or drug abuse, tumours, poisoning, infection and disease, near drowning, haemorrhage, AIDS, and a number of other disorders such as Parkinson’s disease, Multiple Sclerosis, and Alzheimer’s disease.
The terms ABI, head injury, and acquired brain damage, describes the types of brain damage which occur after birth. Lawyers should avoid confusing an ABI with an intellectual disability. Although those with a brain injury may have difficulty controlling, coordinating and communicating their thoughts and actions, they usually retain their intellectual abilities.
Diagnostic and Statistical Manual of Mental Disorders
The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM) is the most commonly used diagnostic tool by psychiatrists in Australia and Queensland. As a note of caution, the Manual’s introduction asserts that in forensic contexts there is potential for the misuse of its diagnostic information, and, that additional information may be required in order to establish legal standards such as criminal responsibility. Therefore, the information herein provides a very basic overview of the general nature of these disorders merely for the lay practitioner’s educative purposes.
Some common disabilities relevant to the functions of lawyers in a forensic context include, but are not limited to:
Bipolar Affective Disorder (formerly manic depression);
Acquired Brain Injury (ABI); and
Since the 1960’s Australia has seen progress in the policy of deinstitutionalisation. Thus, policy has moved from the perceived need for seclusion and restraint inherent in models of involuntary hospitalisation; to the more contemporary view that mentally ill persons are better off living and being treated in the community when accompanied by the use of a variety of antipsychotic drugs.
In Australia today, Community Treatment Orders (CTO’s) acknowledge the capacity of a person to function in the community with the assistance of medication even where that person is otherwise considered dangerous.
In all cases, the aim of treatment should be to ameliorate the patient’s symptom severity, and, to restore their cognitive and behavioural functioning according to the principles set out in sections 8 and 9 of the Mental Health Act 2000 (Qld).
3.1 – Schizophrenia
3.1 – SchizophreniaSchizophrenia is a psychotic disorder that affects approximately one percent of the population. The initial onset occurs most commonly in young adults and less commonly in older persons. Schizophrenia may be a life long condition, or, it may in some cases manifest in short episodes from which a person may fully recover.
Contrary to the populist myth, schizophrenia is not characterised by a person exhibiting a ‘split personality’. Rather, it is generally characterised by a significant impairment of the experience of reality.
More specifically, a diagnosis of schizophrenia requires the existence of two or more of the following symptoms being present for a significant proportion of time during a period of one month:
Delusional thinking (misperceiving events, such as a feeling that one’s thoughts or actions are being controlled; unreasonable feelings of persecution or grandiosity);
Hallucinations (can be visual or auditory such as hearing voices);
Disorganised or incoherent speech;
Grossly disorganised or catatonic behaviour; and
Negative symptoms such as unresponsive body language, a lack of speech or a lack of motivation to fulfil meaningful desires.
For more information see the Diagnostic and Statistical Manual For Mental Disorder
3.2 – Intellectual Disabilities
For more information see the Diagnostic and Statistical Manual For Mental Disorder
3.3 – Acquired Brain Injury (ABI)
Acquired Brain Injury (ABI)
“ABI describes all types of brain injury that occur after birth and should not be confused with an intellectual disability. Those with an ABI do not necessarily experience a decline in their overall level of general intellectual functioning. Rather, they are more likely to experience specific cognitive changes that lead to difficulty in areas such as memory, concentration and communication.”
“An ABI is not a mental illness. Mental illness is an observable abnormality in the functioning of the brain, and although a brain injury does alter the functioning of the brain, it is an observable abnormality in the structure of the brain – that is, a physical condition that causes a change in function. A mental illness on the other hand, does not by definition arise from a physical condition.”
“There is very little understanding or knowledge in the community about brain injury and the impact it has on individuals and families. Acquired Brain Injury (ABI) is often called the hidden disability because its long term problems are usually in the areas of thinking and behaviour, and are not as easy to see and recognise as many other physical disabilities.
As a consequence, the difficulties that those with brain injuries face are easily ignored or misunderstood. Even family members and friends may regard a person with an ABI, who exhibits cognitive problems or changed behaviour, as lazy or hard to get along with.”
Definition courtesy of Brain Injury Association of Queensland
See also fact sheets at Brain Injury Australia.
3.5 – Personality Disorders
Personality disorders describe a wide range of behaviour patterns that exhibit a significant departure from the social standards and expectations inherent within that individual’s culture. These behaviour patterns become stable over time and lead to distress and/or an impairment in functioning.
There are several types of personality disorders including ‘Paranoid Personality Disorder’ whereby a person is excessively suspicious of other’s motives; ‘Antisocial Personality Disorder’ whereby a person exhibits patterns of disregard for the rights of others; and ‘Narcissistic Personality Disorder’ where a person exhibits a sense of grandiosity, the need for affirmation and a lack of empathy.
Generally the characteristics of a personality disorder could include:
- Detachment from family and associates and/or avoidance of social encounters;
- Histrionics such as unreasonable overreactions;
- Feelings of grandiosity; and/or
For more information see the Diagnostic and Statistical Manual For
4.0 – Initial Considerations for Lawyers
In all circumstances, the first and foremost issue should be whether the police and prosecution have adequately made out the facts charged against the defendant. The type of charge is critical to the procedures with which a lawyer can proceed when representing a client.
As well as bearing in mind the classification of the offence according to section 3 of the Queensland Criminal Code Act 1899 (Qld), it is relevant to consider whether the defendant is subject to an Involuntary Treatment Order or a Forensic Order. If the defendant is subject to such an order the process is set out in Chapter 7 Part 2 of the Mental Health Act 2000 (QLD).
However, where a person is not subject to Chapter 7 Part 2, lawyers should not simply dismiss the existence of a mental illness, in particular its possible impact upon the offending behavior and/or the state of mind of the person at the relevant time. It is also important that the lawyer ascertain whether their client is suffering from a disability, other than mental illness and whether the client currently receives any assistance for:
- An intellectual impairment; or
- Acquired Brain Injury.
Where a lawyer is put on notice that there may exist a ‘significant relationship’ between the actions or omissions that led to criminal charges, and, the possible existence of a relevant disability, the lawyer should invariably seek an adjournment and bail (depending on the circumstances) in order to investigate the matter of the client’s mental state and/or cognitive abilities.
A significant relationship is one where, on the balance of probabilities, an expert psychiatric opinion is required to investigate the following issues:
- Whether the defendant is ‘fit for trial’; and/or
- Whether the defendant was deprived of one or more of the three capacities stipulated under section 27 of the Queensland Criminal Code.
Issues such as fitness to plead and unsoundness of mind, although legal issues, depend significantly on assessments of qualified psychiatrists, and it is therefore prudent to adjourn a matter in order to obtain further advice in relation to the process of obtaining a psychiatric assessment and report for the defendant.
4.1 – Key indicators of a relevant disability
When taking client instructions, practitioners should be alert to any circumstances that may put them on notice to investigate a client’s state of mind and/or intellectual disability or any other disability that may have influenced the offending behaviour and/or be of such a nature that may render the person ‘unfit for trial.’ First and foremost, practitioners should note the facts of the alleged offence itself, and critically analyse the behaviour of the client at interview. It is important for a lawyer to ascertain the details of any current disability support benefit the client may receive, and any information in relation to whether the client currently receives clinical mental health treatment, or, whether the client has a history of such treatment.
Practitioners should appreciate that it is not always possible to elicit information in relation to a person’s psychiatric history at interview. It is often the case that mentally ill clients may fear the prospect of hospitalisation if they divulge such information to a person whom they perceive to be an authority figure – such as a lawyer. Moreover, some clients who suffer from certain illnesses do not always display active symptoms. That is to say, that the manifestation of mental illness can often be episodic. Although a person may not display active symptoms at the time of taking instructions, symptoms of mental illness could have been active at the time of the alleged offence.
In all cases, it is critical that practitioners be alert to certain behavioural indicators that cumulatively (or in isolation where the indicator is intense) may serve notice to further investigate the issue of a client’s mental state. These indicators include, but are not limited to:
- Aggression and/or emotional or irrational over-reactions;
- Excessive confusion, distraction or distress;
- Dis-inhibition/low impulse control;
- Difficulty in comprehension of process;
- Verbal disorganisation;
- Difficulty in maintaining eye contact;
- Short attention span and cannot stay focused;
- Excessive compliance to suggestion;
- Short-term memory loss such as the inability to remember familiar persons or places; and
- Any other behaviour that may put the practitioner on notice.
When taking instructions practitioners should allow the client to tell their story uninterrupted. It is important to use simple language that expresses one idea at a time while avoiding the use of leading questions. A simple way of checking if the client understands is to ask him or her to paraphrase their understanding of the advice provided, or by asking other sensitive and appropriate follow-up questions. It is also important to pay close attention to non-verbal behaviour when assessing a client’s level of understanding.
4.2 – Communication at interviews with clients
When interviewing a client who may have a mental illness or an intellectual disability, always consider whether the client has understood what you have said, and, whether the approach you take to the interview is useful, or, is possibly interfering with the communication process. Also be aware that your client may have a support person, be it a carer, family or friends that may be of assistance in gathering necessary information.
It is best to:
- Keep distractions and other stimuli to a minimum;
- Use non-threatening and accessible language;
- be sensitive and reframe questions and responses where appropriate;
- Offer reassurance where it is appropriate;
- Slow the client down to defuse any agitation; and
- Acknowledge what the client says (check the client’s understanding);
Sample Questions at Interviews
- Are you currently employed?
- Do you receive a Centrelink or other benefit or pension?
- If so – what type of benefit do you receive?
- If it is a disability pension what is your diagnosis?
- Are you taking any medication?
- What level of schooling have you received?
- Did you attend special classes at school?
- Did you attend a special school?
- Have you been depressed recently?
- How has your mood been recently?
- Has anyone ever tried to harm you?
- Do you have or have you ever visited a counsellor, case manager or psychiatrist?
- What is the name of your doctor or psychiatrist?
- Who is the usual person you go to for help?
* A case manager is a mental health employee who is responsible for patients who are currently unwell.
* An authority must be signed to access further information in relation to a client on their behalf.
4.3 – Initial options at court
There are a number of options open to the defendant at the first Court appearance (a ‘mention’):
- The defendant can plead guilty to the offence, in which case the Magistrate will usually sentence the defendant immediately, and thus finalise the charges; or
- The defendant can plead not guilty, at which point the Court will set the matter down for hearing. The defendant may then be released on bail upon such an application; or
- The defendant can seek an adjournment, in which case the Court will allow a brief period for the defendant to address the reasons for the adjournment. In these cases, an application should be made for an adjournment. The client will either be remanded in custody or granted bail. In the event that the defendant fails to return to Court on the next Court arranged date, the Court may issue an arrest warrant. Upon arresting the defendant, he/she will be met by a further charge, ‘Failure to Appear’, and may not be granted bail again until the charges are finalised. (This charge is commonly evidenced in a disabled person’s criminal history and can simply emanate from the disability itself, in particular the cognitive ability of the person and/or the episodic nature of their mental illness)
Given the often ambiguous and complex nature of diagnosing a relevant disability, it is often most prudent to attempt to adjourn the matter in order to obtain sufficient information to consider:
- whether the client has a defence or is fit for trial; or
- whether the matter should be referred to the Mental Health Court; or
- to make an adequate submission in mitigation.
Investigations on behalf of a client could include, but are not limited to:
- obtaining the QP9 and criminal history, if any, from the prosecution;
- obtaining letters from treating doctors detailing the client’s condition;
- Freedom of Information applications to the Medico-Legal Department of the relevant Acute Mental Health Unit in order to acquire the client’s mental health history;
- private psychiatric reports;
- psycho-social reports from psychologists; and
- character references and details of any social supports in place for the client from relevant social workers and advocates or others.
Lawyers should advise and assist their clients to apply to Legal Aid Queensland in order to seek funding for a psychiatric assessment and report. If the report contains information to the effect that there may be on the balance of probabilities, a significant relationship between the alleged offence and criminal behaviour, lawyers should refer the issue to the Mental Health Court for determination – where the client is charged with an indictable offence.
In all cases where there is a disability – of any level, lawyers should contact an advocacy service immediately in order to put social support services in place for the client, and, therefore commence addressing the underlying issues in relation to the client’s behaviour and needs.
These support services will be invaluable to the lawyer and the client in any subsequent bail application, and if necessary, to submissions made in mitigation of sentence.
4.4 – Processes for accessing medical information
- Obtain an authority to act;
- Write a letter to the treating service to obtain the relevant medical records and attach the authority;
- If the client is on an Involuntary Treatment Order or a Forensic Order request a section 238 report.
Access medical information through FOI/Administrative processes. If a diagnosis is confirmed in the material from the authorised mental health service or another treating service, this can be used as collateral information and provided to the medical expert in the initial letter of instruction for evidence to put before the Court.
If a person is charged with an indictable or simple offence, and the person is the subject of an ITO or FO, the forensic provisions under Chapter 7 Part 2 of the Act apply. It is important to note that under section 236, the forensic provisions also apply to a person who is not currently under an order, but who becomes subject to such an order after the police lay a charge against the defendant.
When Chapter 7 Part 2 applies, there is no automatic change to the patient’s treatment or detention status. Thus, if the Court grants bail and the person is currently treated under the community category of an ITO the person can remain in the community until their next hearing.
Psychiatric Assessments & Reports
It is of course appropriate to advise and to assist impecunious clients to make a Legal Aid application to undertake a psychiatric assessment from an appropriate psychiatrist. Make sure you include supporting information such as a medical report from the client’s GP. Although it is not mandatory, it can be persuasive.
When choosing a psychiatrist to make an assessment and report on behalf of a client, it is important to understand which particular clinicians have experience and expertise in specific areas. Legal Aid Queensland’s Mental Health Unit may be able to assist in this regard.
It is important to ask the practitioner to undertake an ‘adaptive functioning test’ and to report on the raw scores and outcomes.
It is also very important lawyers request the psychiatrist to consider the utility of community service orders or other alternative non-custodial sentences for their clients. It may be appropriate to have the psychiatrist include their view within their report.
5.0 – Is the Client on an Involuntary Treatment Order or Forensic Order?
It is essential that practitioners understand the significance of whether or not a defendant is already the subject of an Involuntary Treatment Order or a Forensic Order under the Mental Health Act 2000 (Qld) at the time of taking instructions from the client. If the client is the subject of either of those orders, Chapter 7 Part 2 of the Act applies.
Where a practitioner is put on notice that a client’s mental condition should be investigated, and the practitioner has been unable to ascertain that the person is subject to an ITO or FO, advice should be sought from the Department of Health’s ‘Court Liaison Service’.
These services are available at the following Courts:
- Beenleigh; and
A Court Liaison Officer can advise as to whether the defendant is currently on an Involuntary Treatment Order or a Forensic Order under the Act. If you cannot ascertain from the client or the ‘Court Liaison Officer’ that an Involuntary Treatment Order or Forensic Order is in place for the client, you can only proceed on the basis that the client is not the subject of such an order.
5.1 – Criminal Proceedings Suspended
Where Chapter 7 Part 2 of the Mental Health Act 2000 (Qld) applies, lawyers should inform the Court that those provisions apply, and, that under section 243, criminal proceedings against the person should be suspended until:
- The Director of Public Prosecutions makes a decision that the proceedings are to continue or be discontinued; or
- The Mental Health Court makes a decision; or
- The Director of Mental Health gives a notice to the Chief Executive for Justice that Chapter 7 Part 2 no longer applies to the person.
Be aware that if the person ceases to receive involuntary treatment (that is, the Mental Health Review Tribunal or the treating mental health service has revoked the ITO or FO), criminal proceedings are automatically re-commenced against the person. In these circumstances, lawyers should consider the merits of referring the matter (where the person is charged with an indictable offence) to the Mental Health Court under Chapter 7 Part 4.
Practitioners must be aware that section 244 allows a Court (other than the Mental Health Court) to grant Bail for their client under the Bail Act 1980 (Qld). Section 244 also does not prevent the Court from remanding the patient in custody or adjourning the matter. Section 244 also allows a complainant or the Director of Public Prosecutions to discontinue the prosecution.
5.2 – Notification of Director of Mental Health
Where Chapter 7 Part 2 applies, practitioners should apprise the Administrator of the authorised mental health service treating the person of the fact that the person is charged with a criminal offence, and, ensure that the Administrator is aware of their obligation under section 237(2) to inform the Director of Mental Health of the application of those provisions.
The Director must then immediately provide written confirmation of the application of Chapter 7 Part 2 to the Administrator. Upon receipt of that confirmation, sections 238 and 239 require the Administrator, within 21 days, to arrange for a psychiatric examination of the defendant, and to deliver an original copy of the ensuing report, to the Director of Mental Health. Under section 239A, the Director may order another examination by a different psychiatrist for consideration.
5.3 – The Psychiatrist’s Report under Section 238
Under section 238, the psychiatrist’s report must include a clinical assessment that addresses all of the following considerations:
- The patient’s mental condition;
- The relationship, if any, between the patient’s mental illness and the alleged offence and, in particular, the patient’s mental capacity when the alleged offence was committed having regard to section 27 of the Criminal Code 1899 (Qld);
- The likely duration of the illness, and likely outcomes of treatment;
- The patient’s fitness for trial; and
- Any other matters the psychiatrist considers relevant.
5.4 – Director must refer to DPP or MHC
Under section 240, the Director must, within 14 days of receiving the psychiatrist’s report, decide whether to refer the issue of the person’s mental condition either to the Director of Public Prosecutions or to the Mental Health Court for determination. However, be aware that the Director must not refer the matter to the Mental Health Court where the person is charged only with a simple offence.
Note that under section 241, where the person is unfit for trial according to the psychiatrist’s report, the Director of Mental Health may defer making a reference for up to four months from the initial decision to defer, if the Director considers that the person may become fit for trial within that period.
Under section 242(2A), if the Director of Mental Health refers the matter to the Director of Public Prosecutions, the Director must also include an assessment of the matter, and any recommendation they consider would be appropriate.
5.5 – Procedure on reference to the DPP under Chapter 7 Part 3
Under Chapter 7 Part 3, where the Director of Public Prosecutions receives a reference from the Director of Mental Health, the Director of Public Prosecutions must make a decision in relation to the charge within 28 days of receiving that reference, either to:
- Continue proceedings according to law; or
- Discontinue proceedings; or
- Refer the matter to the Mental Health Court (but only if the person is charged with an indictable offence).
Under section 247(4), the Director of Public Prosecutions must have regard to the nature of the offence; the harm suffered by the victim; the person’s mental condition when the offence was committed; the person’s current mental condition and fitness for trial; and how the continuation of proceedings would affect the person’s mental condition.
In any case, the Director’s decision does not affect the patient’s treatment status and the patient can continue to receive involuntary treatment under an ITO. However, if the patient is a classified patient, the classified patient status ends.
6.0 – Client is Charged with an Indictable Offence and is not on an ITO or FO
Initially, if a practitioner has reasonable concerns about a client’s mental state and/or fitness for trial, and the client is not currently subject to an Involuntary Treatment Order or a Forensic Order, lawyers should consider informing the client that they may, depending upon the circumstances, have a defence of unsoundness of mind, or, that the Court may find that they are unfit for trial.
If a person who appears to suffer from a mental illness and/or a significant intellectual disability is charged with an indictable offence, and medical opinion deems them to be ‘unfit for trial’, the matter can be dealt with by the Mental Health Court, or, by virtue of section 613 of the Criminal Code Act 1899 (Qld) (Want of understanding by accused person).
Chapter 7 Part 4 of the Mental Health Act 2000 (Qld) regulates references to the Mental Health Court where a defendant is not the subject of an Involuntary Treatment Order or a Forensic Order.
A reference may only be made where there is reasonable cause to believe the person alleged to have committed an indictable offence is currently mentally ill, or was mentally ill when the alleged offence was committed, or, where the person has an intellectual disability of such significance that issues of unsoundness of mind, diminished responsibility or fitness for trial warrant consideration.
The following persons may refer a matter to the Court:
- The Director of Mental Health, if the person is receiving treatment for a mental illness;
- The Attorney-General;
- The person or their legal representative;
- The Director of Public Prosecutions; or
- A District or Supreme Court.
On receiving the reference, the original Court must suspend proceedings against the person under section 259, until the Mental Health Court makes a decision on the reference.
Under section 258 the reference must be made by filing a notice in the approved form at the Mental Health Court Registry, and must be accompanied by a copy of any expert’s report on the expert’s examination of the person. Section 260 authorises the original Court to grant bail; remand the defendant in custody; and to adjourn the matter. Section 260 also allows a complainant or the Director of Public Prosecutions to discontinue the prosecution.
Moreover, the District or Supreme Court may refer a matter to the Mental Health Court under section 62 of the Act.
7.0 – Fitness for Trial
The phrase ‘fitness for trial’, in its broadest sense, refers to a threshold of mental capacity a defendant must possess before criminal proceedings may continue against them.
From the outset it is important to note that questions in relation to fitness for trial may arise for reasons other than the presence of mental illness or an intellectual disability. In Eastman v R  HCA 29; 203 CLR 1, Gaudron J, at 59, stated that “It may arise, for example, because a person is deaf and dumb or, more generally, because language difficulties make it impossible for him or her to make a defence”. Thus, a defendant’s fitness for trial may be influenced by either a physical or mental impairment.
Moreover, Gaudron J asserted that although fitness is a concept that derives from common law principles (see Gaudron J at paragraph 85), statutory provisions invariably influence the determination of the issue. Accordingly, Schedule 2 of the Mental Health Act 2000 (Qld), states that ‘fit for trial means fit to plead at the person’s trial, and to instruct counsel, and endure the person’s trial with serious adverse consequences to the person’s mental condition unlikely’.
If the issue of fitness for trial is not raised by the Court or by a party to the proceeding fitness is assumed. Thus, unless there is material to suggest otherwise, a person is presumed fit to plead, and, to be of sound mind according to section 26 of the Criminal Code Act 1899 (Qld).
At trial however, that presumption is displaced if there is material presented which raises a question as to that person’s fitness. In these circumstances “the trial must stop unless and until the appropriate body determines that he or she is fit to plead” as per Gaudron J at paragraph 86.
7.1 – The test for fitness for trial
To assess whether a defendant is fit for trial, lawyers should have recourse to Kesavarajah v The Queen  HCA 41;(1994) 181 CLR 230, where the High Court confirmed that the test for fitness for trial, is, as outlined by Smith J in R v Presser  VR 45, read with the current Queensland Mental Health legislation: see Queensland Court of Appeal in R v M  QCA 464.
In R v Presser, the trial judge considered that an issue of fitness arose from the defendant’s medical reports and the transcript of his committal hearing. Although a jury determined Presser was fit for trial to the charge of murder, Smith J set out seven criteria, which a defendant should satisfy in order to be fit for trial.
Thus, according to R v Presser a defendant must be able to:
- Understand the nature of the charge;
- Plead to the charge;
- Exercise the right of challenge to empanel jurors;
- Understand the nature of the proceedings, namely that it is an inquiry as to whether the accused committed the offence;
- Follow the course of the judicial proceedings in a general sense;
- Understand the substantial effect of any evidence that may be given in support of the prosecution; and
- To make a defence or answer the charge. If the defendant has counsel, the defendant must be capable of providing that counsel with the necessary instructions; and to inform counsel of their version of the facts. Thus, a defendant must have sufficient capacity to understand counsel’s advice, and, to decide what defence he or she may rely upon.
By way of further general comment in relation to fitness for trial, practitioners should not overlook those cases where a defendant is represented by counsel, and, that it not necessary to demonstrate that the defendant understands the nuances of court procedures, or, the intricacies of the substantive law.
For instance, the High Court observed in Ngatayi v R (1980) 147 CLR 1 at 8 that “the test looks to the capacity of the accused to understand the proceedings but complete understanding may require intelligence of a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J in R v Presser (1958) VR 45 at 48 that the test needs to be applied “in a reasonable and common sense fashion”. Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused “need not have the mental capacity to make an able defence”.”
In R v M  QCA 464, paragraph 7, the Court observed that “fitness for trial should therefore be assessed in the recognition that he [a defendant] is represented by counsel, and that court proceedings may be structured in order to accommodate his disability”.
7.2 – Fitness to give coherent instructions
Where a client instructs a lawyer to plead guilty as set forth in the police brief, and there does not appear to be an issue in relation to their fitness for trial as per the test as outlined in R v Presser, a practitioner’s duty to the client directs that they should act according to the client’s instructions, provided there was capacity at the time of taking instructions.
However, there may be occasions where a practitioner may feel it necessary to inform the Court of his or her concerns in relation to the person’s fitness. In these circumstances a practitioner may consider airing their concerns, and the basis for those concerns, with the Director of Public Prosecutions; the Attorney General, and/or as a ‘friend of the Court’ to the Court itself.
In these circumstances, where the Court and/or the interested parties to a proceeding are apprised of a potential issue in relation to fitness, those parties can then raise the issue, rather than the defence.
Moreover, at common law the Court has a duty to ascertain whether a defendant is fit for trial regardless of whether or not the prosecution or the defence raise the issue. Therefore, the Court may of its own volition engage in an inquiry as to the fitness of the defendant.
It may be prudent, in difficult situations, to seek an ethical ruling from the Queensland Law Society. Moreover, where in doubt of a client’s fitness, it is sensible to advise the client to seriously consider undergoing a psychiatric examination to confirm their capacity to be fit for trial.
7.3 – Process for ongoing review of fitness for trial
Under section 271 of the Mental Health Act 2000 (Qld) the Mental Health Court may decide the person is unfit for trial but also that the unfitness is of a permanent nature.
However, where a defendant has been determined by the Mental Health Court to be unfit for trial on a temporary basis, the Mental Health Review Tribunal will review the person’s fitness every three months for the first 12 months, and thereafter every six months, to decide if the person subsequently becomes fit for trial: see sections 208(a) and 209.
If at any time the Tribunal determines that the person is fit for trial, the person then ceases to be a forensic patient and criminal proceedings will recommence against them. Alternatively, under section 212, if after the fourth scheduled review, and on all subsequent reviews, the Tribunal determines that the person remains unfit for trial, and that the person is unlikely to become fit for trial within a reasonable time, the Tribunal must report that decision to the Attorney General.
Although, the Attorney General is empowered to order that proceedings be discontinued at any time under section 214 and 217, section 215 provides that proceedings are automatically discontinued if the patient remains unfit for trial for three years.
For offences carrying a maximum penalty of life imprisonment, the proceedings are discontinued after seven years. In these cases, the person remains a forensic patient until the proceedings against them are discontinued and the Tribunal revokes the Forensic Order.
8.0 – The Defence of ‘Unsoundness of Mind’
What constitutes an unsound mind is a question of law. However, whether a person was suffering from an unsound mind at the time of the offence is a question of fact, for the tribunal of fact to decide, whether that be a jury or an alternative decision maker.
Under section 26 of the Criminal Code Act 1899 (Qld) every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved. Thus the onus is on the defence to establish the defence of unsoundness of mind on the balance of probabilities.
Schedule 2 of the Act defines unsoundness of mind as ‘the state of mental disease or natural mental infirmity’ as described under section 27 of the Criminal Code Act 1899 (Qld), but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence’.
Thus, the test for ‘unsoundness of mind’ as a defence to a criminal act is provided under section 27(1) of the Code and means that a person is not criminally responsible for an offence if the person was, at the time of the alleged offence, in a state of ‘mental disease’ or a ‘natural mental infirmity’, and, deprived of any one of the following three capacities:
- The capacity to understand what they are doing; or
- The capacity to control their actions; or
- The capacity to know that they ought not do the act or make the omission.
For the purposes of section 27 the phrases ‘mental disease’ and ‘natural mental infirmity’ have significance. In R v Falconer (1990) 171 CLR 30 the Court adopted the reasoning posited by King CJ in R v Radford (1985) 42 SASR 266 at 274-6, ‘I do not think a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as a disease of the mind…. The essential notion appears to be that in order to constitute insanity [unsoundness of mind] in the eyes of the law, the malfunction of the mental facilities…must result from an underlying pathological infirmity of the mind, be it of a long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary stimuli’.
Moreover, according to R v Falconer at 54, the Court stated that it would ‘…think it necessary that a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity.’
Insanity OR Automatism?
The High Court in R v Falconer also considered the relationship between unsoundness of mind, and, the defence of automatism under section 23 of the Criminal Code Act 1899 (Qld). While section 27 requires evidence that raises the issue of a connection between the offence and a mental state that constitutes an underlying mental infirmity generally from internal factors, section 23 generally requires evidence that postulates that the accused person committed an offence involuntarily, that is, independently of the person’s will – because of the application of external stimuli upon an otherwise sound mind.
The role of intentional intoxication may well be of considerable relevance. In Re LIH  QMHC 014, Wilson J stated that the “Court must determine whether he was deprived of one of the capacities by a mental disease, and if so, whether that state of mind resulted to any extent from intentional intoxication”.
9.0 – Evidence Required to Raise an Issue of Mental Condition or Intellectual Impairment
- The QP9 and other associated collateral evidence;
- Non-expert evidence of the defendant’s conduct, prior to and after the events, the subject of dispute can be relevant to a person’s mental condition; Medical records;
- Psychiatrist’s report addressing each of the offences;
- Psycholgist’s/Counsellor’s or Social Worker’s report;
- DSQ or Adult Guardian or other support services reports;
- If on an ITO or a FO, the section 238 report; and
- Any other relevant information available to the practitioner.
10.0 – References to the Mental Health Court in all Circumstances
Chapter 7 Part 6 of the Mental Health Act 2000 (Qld) regulates inquiries on references to the Mental Health Court regardless of whether the defendant is currently the subject of an ITO or FO or not.
Under section 264 the Registrar must, within seven days of the reference being made, give written notice of the reference to the parties to the proceeding. Section 266 requires the Registrar to give the parties seven days notice of the details of the hearing and their right to representation. Section 265 requires each party to give the Registrar a copy of any expert’s report the party has in their possession relating to the matters to be decided by the Court. Note that a reference may be withdrawn at any time by the person who made it by application to the Mental Health Court under section 261.
Under section 267 the Mental Health Court decides:
- Whether the person was of unsound mind when the alleged offence was committed (as per the three capacities under section 27 of the Criminal Code Act 1899 (Qld));
- If the charge is murder, and the person was not of unsound mind, the Court may decide whether the person was of diminished responsibility when the alleged offence was committed and may amend the charge to manslaughter;
- Under sections 270 and 271, where the Court finds that person was not of unsound mind at the time of the alleged offence, the Court must then decide whether the person is fit for trial, and, whether the unfitness is of a permanent or temporary nature.
The consequences of the Court deciding that a defendant was of unsound mind or unfit for trial are that the accused may not be legally responsible for the offences. However, the defendant may be confined securely, at ‘Her Majesties Pleasure’: section 647 Criminal Code Act 1899 (Qld). The Act may subject a person to continuing criminal sanction, even if the person was made the subject of a finding of unsoundness of mind or unfitness for trial where:
If the Mental Health Court decides that a person was of unsound mind at the relevant time for a specific alleged offence, or is unfit for trial, and that the unfitness is of a permanent nature, the person may be made subject to a non-contact order pursuant to section 318B of the Act. Such an order prevents a defendant from making contact with certain persons associated with the reference for up to two years. It is an offence to break such an order, and the maximum penalty for doing so is 40 penalty units or a years imprisonment.
Where there is a finding of temporary unfitness under section 270, section 280 asserts that proceedings must be stayed, either until upon a review pursuant to section 212 of the Act the Mental Health Review Tribunal decides that the person is fit for trial or until a certain time has elapsed after the Mental Health Court’s decision (see section on the ‘process for ongoing review of fitness for trial’). The defendant remains indirectly subject to the charges during this time.
The future responsibility for that person’s treatment and supervision then usually passes entirely to the mental health system where an authorised mental health service will detain and treat the person under a Forensic Order as authorised by the Court.
Disputes as to Facts
Lawyers must note that the Mental Health Court cannot deal with factually contentious cases in some cases. This includes circumstances where there is a reasonable doubt the person committed the offence (see section 268), or, where the dispute is about a significant material fact on which an expert bases their opinion, and to make a decision based upon that opinion would be unsafe: See section 269.
Thus, when the reference is made, the Court will not determine the issues the subject of the reference unless there is an indication from the defence that the client’s instructions are that they do not dispute the facts. This normally becomes an issue in the report from the medico-legal experts. It is not uncommon for the client to relate a set of factual circumstances to the expert that are dissimilar to the allegations contained in the police brief. In these circumstances, the Court will want clear indication as to the client’s instructions in relation to this.
Lawyers must exercise caution. Whether a dispute of fact ought to disqualify the Mental Health Court from determining the question of unsoundness of mind or not is determined by the nature of the matter in contention. For instance, a defendant might claim to one Doctor that he consumed amphetamines two hours before the alleged offence; but to another deny that he consumed the drugs at all. These circumstances may provoke a dispute of fact substantially material to the opinions of both Doctors and so prevent the Mental Health Court from making a decision on the question of unsoundness of mind.
On the other hand, a defendant might not inform police that he heard voices at the time of the alleged offence, but so inform Doctors at a later time. One such Doctor mat opine that the defendant manufactured a story to attempt to devise a finding of unsoundness of mind; but another Doctor may opine that the defendant’s early failure of recollection may have resulted from illness which abated upon treatment, allowing for accurate recollection. In contrast to the previous example, this merely exposes a difference of medical opinion, and not a factual dispute.
In cases where there is no dispute as to such facts, the Mental Health Court must decide whether the person is fit for trial. Under section 272, if the Court finds the person is fit for trial, the matter proceeds according to law. In this case the Court may, under section 273, remand the person, grant bail, or detain the person in an authorised mental health service, pending their Court hearing.
10.1 – Delays
Be aware that there are delays in the process of determining the mental health status of disabled clients, particularly where there is a referral to MHC for determination. Time delays are attributed to many factors, including:
- 45 to 60 day waiting periods for the provision of documents requested under Freedom of Information from Medico-Legal services of Acute Mental Health;
- Time necessary to draft submissions to Legal Aid requesting psychiatric report;
- Funding, and processing of the request;
- Time delays in accessing an appointment time for the client to consult with a private psychiatrist; and
- Time delays in matters coming before the Mental Health Court for determination.
11.0 – Mental Health Court Procedures
The Mental Health Court is a specific forum in which one Supreme Court Judge presides with the assistance of two psychiatrists. It is not the function of the psychiatrists to examine the person the subject of the proceeding. Rather, they provide the Judge with professional assistance in relation to the interpretation and significance of clinical evidence presented before the Court.
The Court has inquisitorial powers that enable it to fully investigate the mental health of the person the subject of the hearing. No party to a proceeding bears the onus of proof in relation to any matter before it under section 405. Therefore, the Court can seek independent reports, rather than relying solely on the defence or prosecution to provide them. Under section 404 the Court is not bound by the rules of evidence unless it is in the interests of justice to do so. This means that the Court may accept material that may otherwise be inadmissible.
All matters before the Court are determined on the balance of probabilities except where, under 268, there is a reasonable doubt as to the defendant’s culpability in relation to the charge.
Under section 415, each party to a proceeding must bear their own costs.
The Court’s proceedings are usually open to public observation unless the hearing involves a young person or involves an appeal of a Mental Health Review Tribunal decision. The Court may however close proceedings under section 414.
12.0 – Client is Charged with a Summary Offence Only and is not on an ITO or FO
Where the defendant is charged with a summary offence only, there is no rite of passage to have the issue of ‘unfitness for trial’ or ‘unsoundness of mind’ dealt with by the Mental Health Court unless the person is already the subject of an Involuntary Treatment Order or a Forensic Order. Given that duty lawyers commonly deal with summary offences, they are often precluded from referring mental health or relevant disability issues to the Mental Health Court.
Thus, simple offences in the absence of an accompanying indictable offence are problematic because there is no avenue available to refer the matter to the Mental Health Court. Thus, all investigations and enquiries must take place in the Magistrates Court. Issues relating to the defence of unsoundness of mind and fitness for trial can and are tried in a summary fashion in the Magistrates Court.
Where there are concerns as to whether the client may have been of unsound mind at the time of the alleged offences, or that he or she is now unfit for trial, practitioners should obtain a report from an experienced forensic psychiatrist. If the client is short of money, set out the reasons for your view about his or her condition in an application for Legal Aid Queensland funding to pay for the report. If the report supports a finding of unsoundness or unfitness, or both, write a submission to the Police Prosecution Corp (PPC) appending the report and urging them to discontinue the charges. Make sure that the report expressly authorises disclosure of its contents before so proceeding. If it does not, contact the reporting Doctor and request advice about it.
Should the PPC reject your submission, set the matter down for a Summary trial and argue the relevant issues therein. Allow the Magistrate to determine the question of fitness on a preliminary hearing.
Should the medical report opine that the client was of sound mind at the relevant time, and that he or she is fit for trial, you may take the client’s instructions on how he or she intends to plead to the charges.
13.0 – Police Investigations
Police investigate alleged offences by obtaining physical evidence and attempting to interview witnesses, including the defendant.
The police may arrest the defendant and take him or her to a police station for further questioning. Then the police may file charges and issue a ‘Notice to Appear’, which briefly outlines the alleged offence. The defendant has fourteen days to appear in the nearest Magistrates Court and should spend this time seeking legal representation.
Police officers enjoy considerable discretion in discharging their powers and responsibilities. Where there is some doubt as to a person’s mental capacity, the Police may exercise their discretion to issue a warning rather than lay charges.
Section 422 of the Police Powers and Responsibilities Act 2000 (Qld) requires police to source a support person to be present prior to (without being overheard), questioning the suspect where a disability is apparent and in circumstances that are practicable. The support person must be independent of the police service and can be a parent or guardian of the person with a disability.
It is the role of support persons to actively ensure that the disabled person understands what is happening at the interview, and, does not feel undue pressure by the police officers. The most prudent support person will advise the disabled person to seek legal advice prior to participating in any interview with the police.
If police fail to observe these procedures, any statements and/or admissions, may be inadmissible as evidence, and, may result in disciplinary action for the police officers concerned.
Considerable research indicates that a person with impaired capacity is more likely to admit to offences, including those offences that they may have not committed, due to a desire to please an authority figure (police) or a desire to conceal the fact they do not understand the questions asked. Thus, they may be more likely to respond affirmatively to questions despite the question’s content.
14.0 – Bail Applications
Section 11A of the Bail Act 1980 (Qld) allows a police officer or Court to release an intellectually impaired person without bail by releasing him or her into the care of another person who ordinarily cares for the person; or to a person with whom the person resides; or by permitting the person to go at large upon condition that the person will surrender at the time and place stated in a notice under section 11B.
Lawyers must be aware of the assistance that advocates and social workers can contribute to a client’s bail application under the Bail Act 1980 (Qld). A defendant may be unlikely to be granted bail where there are insufficient social support services in place. Moreover, if the Court initially refuses bail they are likely to be refused again at a subsequent application in the absence of such social supports.
Before a Court or police officer can release a person on bail, they must consider whether there is an ‘unacceptable risk’ as set out in section 16(1). Thus, a Court must refuse bail where satisfied there is an unacceptable risk, that if released:
- the defendant would fail to appear at the next Court date and/or surrender into custody; or
- the defendant would either commit an offence; or
- the defendant would endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged; or
- the defendant would endanger the safety or welfare of another; or
- the defendant would interfere with a witness; or
- the defendant would otherwise obstruct the course of justice whether for the defendant or anyone else; or
- that the defendant should remain in custody for the defendant’s own protection.
Section 16(2) sets out the matters the police officer or Court must consider when determining whether there is an unacceptable risk, and, lawyers should concentrate on the items in this section.
In assessing whether there is an unacceptable risk, the Court or police officer, shall have regard to:
- the nature and seriousness of the offence; and
- the character, antecedents, associations, home environment, employment and background of the defendant; and
- the history of any previous grants of bail to the defendant; and
- the strength of the evidence against the defendant.
Section 19B allows the review of bail decisions and section 30 allows applications to vary or revoke bail.
15.0 – Penalties and Sentences
Where a defendant pleads guilty, or is found guilty of an offence, the Penalties and Sentences Act 1992 (Qld) asserts that the Magistrate can select from the following sentencing options:
- Conviction and no further punishment; and/or
- Monetary fine; and/or
- Restitution, Compensation or Restoration; and/or
- Recognisance; and/or
- Probation; and/or
- Community service; and/or
- Intensive correction order; and/or
- Imprisonment as a last resort, including a wholly or partially suspended sentence.
For any defendant the passage through our criminal justice system is a maze to navigate. This process is even more complex and emotive for those that suffer from a mental illness and/or an intellectual impairment.
The lack of appropriate penalties and sentences conducive to people that suffer from such disabilities invariably means that disabled defendants are at far greater risk of breaching requirements under particular sentence options, and are consequently fast tracked towards custodial penalties as a result.
It is therefore critical, that when appearing at a sentence hearing on behalf of a person with a disability, lawyers should be capable of stating to the Court – the general nature of the defendant’s disability and how that disability specifically affects the person.
* Lawyers must be aware of the assistance that advocates and social workers can contribute to a client’s submissions in mitigation of sentence. Social advocates can put support services in place for a defendant, and, thus demonstrate a willingness on the part of the defendant to make improvements to their behaviour, which may also assist in demonstrating a level of remorse.
15.1 – Recognisance
A recognisance is essentially a promise (with or without sureties) to the Court, often to pay money, appear in Court at a specified time or to be of good behaviour
A good behaviour bond requires that a person be of good behaviour for a specified period not exceeding one year, and not commit further offences. This order is often imposed on young or first-time offenders. There is no formal supervision during the life of the order, and defendants subject to it are reliant on their own resources to avoid re-offending.
See also Peace and Good Behaviour Bond to resolve issues of physical abuse and threats.
15.2 – Monetary fine
A monetary fine can be imposed pursuant to section 45. Section 48 provides that the Court must take into account:
- the financial circumstances of the offender, and
- the nature of the burden that payment of the fine will be on the offender.
The Court often allows time to pay the fine under section 51 of the Police Powers and Responsibilities Act 2000 (Qld), usually at the rate of about $100 per month, and usually up to a maximum of six months, although this can vary depending on circumstances. The Court can order in default of payment of the fine – the offender is to serve a specified period of imprisonment under section 182A. Although discretionary, current sentencing practice in Queensland Courts suggests that each $50 of unpaid fines will result in one day’s imprisonment. Failure to pay fines can lead to “in default” imprisonment. Offenders with fines may apply to the State Penalties Enforcement Registry (SPER) for a Centrepay – regular small deductions from their Centrelink benefit, which postpones the “in default” imprisonment. There is a fee for registration and deductions are usually $20 per fortnight. The prescribed repayment amount is amended in accordance with increases in income. While the SPER system can avoid the need for fine defaulters going to jail, it means that offenders face significant periods of debt and repayment. SPER has no power to cancel registered fines.
15.3 – Probation order
A probation order is essentially a supervised order, for a period between six months and three years, in the community under the supervision of Corrective Services (and only with the consent of the offender).
Conditions of a probation order may include that the offender must:
- report to their supervising officer as required; and/or
- take part in counseling or other programs; and/or
- advise of any changes of place of residence; and/or
- other conditions the Court sees fit.
The Court can also impose requirements that the offender submit to medical, psychiatric or psychological treatment. This order is clearly to rehabilitate, rather than punish offenders who the Court considers are in need of supervision and assistance. Difficulties arise if the offender fails to come to appointments (especially the first one), misses counseling sessions or falls out of touch with their supervising officer. Each of these events is a breach of the probation order and exposes the offender to arrest and re-sentencing for the original offence as well as a further penalty for the breaching event
15.4 – Imprisonment
A term of imprisonment can be wholly or partially suspended, or ordered to be served in full. Imprisonment is usually considered a last resort when no other penalty is appropriate and the Court must record a conviction.
15.5 – Intensive correction order
The Court can only make an Intensive Correction Order where it has sentenced the offender to less than 12 months and has recorded a conviction (and only with the consent of the offender).
The offender serves his or her sentence in the community under the supervision of Corrective Services and with several conditions attached as the Court sees fit.
15.6 – Community service order
A community service order contains provisions similar to that of a probation order (and is imposed only with the consent of the offender).
The Court can order the offender to complete between 40 and 240 hours of unpaid community service under the supervision of Corrective Services. This can be more onerous than a probation order as the offender must not only attend regularly, and on time, but must also participate in unpaid (usually unskilled) work for several hours at a time until the order is complete. Again, this type of order could be considered suitable only for those members of the community with the ability to consistently meet such commitments.
16.0 – Homeless Persons & Special Circumstances Diversion Pilots (Brisbane only) Queensland’s public order offences
The Summary Offences Act 2005 (Qld) generally outlines the most common public space offences, including but not limited to:
- Public nuisance – section 6;
- Begging in a public place – section 8;
- Being drunk in a public place – section 10; and
- Trespass – section 11.
Public order laws are likely to affect homeless persons disproportionately because their behaviour invariably occurs in public – that is to say, public spaces often constitute a homeless person’s place of residence. Thus, many common activities of daily living, such as toileting, become a public order offence because those activities occur in public. Police officers regularly enforce these laws against persons who are evidently underprivileged and deprived of life’s most basic necessities.
Chapter 2 Part 5 of the Police Powers and Responsibilities Act 2000 (Qld) authorises a police officer to direct a person to ‘move-on’, or to give another direction where the person, amongst other things, causes anxiety to another, or where the person is disorderly, indecent or offensive. The refusal to observe the officer’s lawful direction is another offence that commonly derives from a person’s refusal to ‘move-on’. Under section 79, a person must not contravene an officer’s direction, in the absence of a reasonable excuse, and may be liable to a fine of 40 penalty units.
The Homeless Persons Court Diversion Program
The Homeless Persons Court Diversion program diverts homeless persons from the criminal justice system. Magistrates at the Brisbane Arrest Courts may refer persons charged with public order offences to specialised health and accommodation services where satisfied that their homelessness is related to their offence.
Special Circumstances List
In addition, the Brisbane Magistrates Court also has a ‘Special Circumstances Court’. This specialist court hears cases referred to by other Magistrates or Court Liaison Officers and hears cases involving persons charged with relatively minor offences, and where those persons are judged to have ‘special circumstances’ including impaired decision making capacity, homelessness, the presence of a mental illness and/or substance abuse issues. Such cases are most commonly disposed of via discharges and adjournments, usually with treatment and welfare conditions attached, and through the cooperation of relevant social workers who will refer defendants to local social support agencies.
Lawyers may therefore seek to have clients placed on ‘Special Circumstances List’, in order to access a therapeutic alternative to the usual court processes and sentencing outcomes for defendants charged with simple offences.
Criteria for Eligibility
- Must be 17 years or older;
- Must appear to have a decision-making impairment;
- Must appear to have either a mental health issue, intellectual disability or brain/neurological disorder; and
- Must plead guilty to an offence that arises in the context of a public order regulation.
It is suggested that lawyers make sentencing submissions, in appropriate circumstances, that shy away from the imposition of imprisonment, and, fines, which homeless and/or mentally ill persons invariably have little prospect of paying. Rather, lawyers should make submissions toward alternative sentences, such as court supervision and referral to an agency that provides social services, in order to address the underlying issues contributing to the offending behaviour.
16.1 – Capacity to consent to treatment?
Schedule 2 of the Mental Health Act 2000 (Qld) defines capacity in relation to a person as, a person who is capable of understanding the nature and effect of decisions about their treatment. In addition, the patient must be capable of making free and voluntary decisions in relation to that treatment, and be capable of adequately communicating those decisions. It should be noted that a guardian, attorney or statutory health attorney is not relevant in relation to the patient giving consent.
17.0 – Involuntary Assessment of Mentally Ill Persons in the Absence of a Court Order
At common law mentally ill persons enjoy the capacity to determine general health care to the same extent as any other person, and in the absence of informed consent, nobody may administer medical treatment to any person. Thus, at common law persons suffering from a mental illness can and do make their own decisions regarding their movements and their treatment. Accordingly, at common law a person wrongfully detained may apply for a writ of habeas corpus by which a Court requires the person to be brought before it, and for the Court to consider the legality of that detention. However, the Mental Health Act 2000 (Qld) (the Act) authorises the involuntary assessment, detention and treatment of persons upon the satisfaction of certain criteria. Although voluntary patients may consent to and refuse treatment according to their own volition, it is when a person (whether an existing voluntary patient or not) satisfies the requirements for involuntary assessment that clinicians may override their refusal to consent. Herein lays one of the most controversial areas of mental health law.
Decisions regarding the liberty of certain persons under the Act are essentially legal decisions. Those persons who are in a position to make a decision to deprive a person’s liberty are therefore accountable on a legal basis. Thus, the treating institution must in all circumstances justify their decision to detain and treat a person involuntarily. As stated, an authorised mental health service may only make such decisions where they believe a person has a mental illness as defined in section 12 of the Act. However, they must also satisfy the statutory criteria outlined below. The objective of the criteria is to provide control measures designed to prevent the occurrence of inappropriate involuntary assessment, detention and treatment. Thus, a person must be subjected to involuntary processes where they do not satisfy each of the statutory criteria.
The purpose of assessing persons against their will is to determine if that person requires treatment according to the statutory treatment criteria as set out under section 14 of the Mental Health Act 2000 (Qld). Under section 13, in order to receive an involuntary assessment, the person generally must:
- Appear to have a mental illness requiring immediate assessment;
- Which can take place at an authorised mental health service;
- Display a risk that the person may cause harm to him or herself, or someone else, or, that the person may suffer serious mental or physical deterioration if not assessed.
It is also important to note that in order to receive involuntary assessment; section 13(2) requires that the person must either lack the capacity to consent to the assessment, or must have unreasonably refused an assessment. Lawyers should note that the phrase ‘unreasonably refused’ is not defined in the Act.
Chapter 2 of the Act outlines the procedural requirements to authorise involuntary assessment. In order to assess a person in the absence of their consent there are two documents that the applicants must send to the Administrator of an approved mental health service. This represents a two-step process:
- a request made by an adult who reasonably believes that the person has a mental illness that requires involuntary assessment and who has observed the person within the preceding three days before making the request; followed by
- a recommendation for assessment made by a doctor or authorised mental health practitioner who has examined the person within the preceding three days. The doctor or practitioner must not be a relative of the person. When making their assessment, the doctor or practitioner must be satisfied that all of the assessment criteria outlined above apply to the person.
A recommendation for assessment remains in force for seven days after it is made, and a person may be detained for up to 72 hours for the purposes of that assessment. However, if an authorised doctor has not made an Involuntary Treatment Order for the patient at the end of the assessment period then the patient ceases to be an involuntary patient and may only be assessed further with their consent.
Each document must be made by different persons and must state the facts on which the request and recommendation is made, and, must distinguish between the facts known because of personal observation, and facts communicated by others.
Once the two-step process of request and recommendation are complete, a health practitioner or ambulance officer can take the person to an authorised mental health service for an assessment. It is lawful to engage the assistance of police to this effect where necessary under section 25. Moreover, a doctor may administer medication to affect a lawful process where the doctor believes it necessary to ensure the safety of the person or others under section 26.
At this stage, where the assessment documents are complete, the person becomes an involuntary patient and may be assessed without their consent.
17.1 – Capacity to consent to treatment?
Schedule 2 of the Mental Health Act 2000 (Qld) defines capacity in relation to a person as, a person who is capable of understanding the nature and effect of decisions about their treatment. In addition, the patient must be capable of making free and voluntary decisions in relation to that treatment, and be capable of adequately communicating those decisions. It should be noted that a guardian, attorney or statutory health attorney is not relevant in relation to the patient giving consent.
17.2 – Justices Examination Orders
If an examination by a doctor cannot readily occur, the examination may be initiated alternatively under a Justice’s Examination Order. The order authorises an authorised mental health practitioner to enter a place to examine the person involuntarily and to decide whether a recommendation for assessment should be made. The order has effect for seven days. Section 27 allows any adult to make a sworn application to either a Magistrate or a Justice of the Peace. Under section 28 the Magistrate or Justice of the Peace must be satisfied that the person has a mental illness; that the person should be examined by an authorised mental health practitioner to decide whether a recommendation for assessment should be made; and that the examination can not properly be undertaken without making the order. The order must be in the approved form (see forms below). It is important to note that the request and recommendation for assessment must also be made for the person in order to take the person to an authorised mental health service for assessment. For further information click here
17.3 – Emergency Examination Orders
Where a Justices Examination Order would cause a dangerous delay and significantly increase the risk of harm to the person or others, Part 2 Division 3 of the Act authorises police officers, ambulance officers and psychiatrists to take a person to an authorised mental health service to determine whether the assessment documents should be made for the person. A police or ambulance officer must reasonably believe the person has a mental illness, and because of that illness, there is an imminent risk of significant physical harm to the person or others. The criteria for a psychiatrist to make an emergency examination order is exactly the same as the criteria for police officers and ambulance officers, except that a psychiatrist must be satisfied (rather than reasonably believe) that the person has a mental illness. In practice, the form is completed on arrival at the health service. The person may be detained for up to 6 hours after the order is made.
17.4 – Court Examination Orders
Section 58 authorises a Court to make a ‘Court Assessment Order’ for a person charged with a simple or an indictable offence where the Court is given a recommendation and agreement for assessment. Where a Court makes such an order it must adjourn proceedings and remand the person in custody. However, a Court Assessment Order should only be made if the person needs to be detained in an Authorised Mental Health Service for assessment. Where this is not necessary, the person can be remanded in custody; granted bail under the Bail Act, and, subsequently assessed as an out-patient or a voluntary patient.
Where a Court makes a ‘Court Assessment Order’ the person becomes a ‘Classified Patient’.
17.5 – Authority to enter premises
17.6 – Police Powers & Responsibilities Act 2000
An authorised mental health practitioner is a public official for the purposes of the Police Powers and Responsibilities Act 2000 (Qld) and where the practitioner requires the assistance of a police officer, the officer is taken to have responded to a request by a public official under section 16(3) of the Police Powers and Responsibilities Act 2000 (Qld). Under section 21 a police officer may enter a place and stay for a reasonable time, search for and detain a person. Under section 615 it is lawful for a police officer to use reasonable force necessary to exercise their authority.
18.0 – The Mental Health Review Tribunal
The Mental Health Review Tribunal commenced operations in February 2002 and arguably, represents the key statutory safeguard intended to balance the rights and freedoms of involuntary patients with the rights and freedoms of others. The Tribunal also has a responsibility to consider the protection of the community and the interests of victims of crime committed by persons subject to the Act. The Tribunal consists of a full time President and a multi-disciplinary panel of professional members, predominantly lawyers, psychiatrists or doctors, and community representatives with relevant professional experience such as social workers.
Section 437 of the Act outlines the Tribunal’s jurisdiction, which includes:
- Applications for the review of treatment criteria for patients subject to Involuntary Treatment Orders (ITO’s);
- Reviews of Forensic Orders (FO’s);
- Reviews of the detention of young patients in high security units;
- Determining the mental condition of persons to determine fitness for trial;
- Hearing applications by patients to move outside Queensland;
- Hearing treatment applications regulated under the Act; and
- Hearing appeals against decisions of a mental health service to refuse to allow persons to visit an involuntary patient.
One of Tribunal’s key functions is to review the application of the treatment criteria to involuntary patients. A review must take place within six weeks after the initial imposition of the ITO and afterwards at intervals of not more than six months, unless the patient, or a person on the patient’s behalf, or the Director of Mental Health appointed under section 188 applies for an earlier review. Alternatively, the Tribunal may on its own initiative carry out a review of the application of the treatment criteria under section 187(3). Following the review, the Tribunal must, under section 191, either confirm or revoke the ITO and decide whether the category of the order should continue or whether the Tribunal should change the order to either an in-patient or limited community treatment category.
Tribunal proceedings are conducted in an informal conference room with all participants being present at one time to afford involuntary patients the opportunity to participate in all matters before the panel. In keeping with this inquisitorial hearing approach, the Tribunal need not abide by the rules of evidence, and may inform itself on a matter in any way it considers appropriate. However, the Tribunal must observe the principles of natural justice and conduct its proceedings according to what amounts to a fair and proper consideration of the issues before it. Despite these requirements the Act confers a wide discretion to conduct proceedings as the Tribunal considers appropriate. For instance, although the Act provides that the Tribunal must exercise its jurisdiction in a way that is fair, economical and informal and timely, it also allows it do all that is convenient in relation to the exercise of its jurisdiction under section 439.
19.0 – Mental Health Act 2000 (Qld) – Flowcharts
Involuntary Assessment of a Person – Chapter 2 Download Attachment
Involuntary Treatment – Chapter 4 Download Attachment
Involuntary Patient Charged with an Offence – Chapter 7 Part 2 Download Attachment
Enquiry on Reference to Mental Health Court – Chapter 7 Part 6 Download Attachment
Detention as a Classified Patient – Chapter 3 Download Attachment
Review by Mental Health Review Tribunal – Chapter 6 Download Attachment