The Tribunal has responsibilities under both the Mental Health Act 2007 and the Mental Health (Forensic Provisions) Act 1990 in the forensic area. The Tribunal’s forensic division reviews:
•Those found unfit to be tried, then released by the Court
•Correctional patients and inmates waiting for transfer to a mental health facility
•Those subject to Forensic Community Treatment Orders
A forensic patient is a person who has:
•been found unfit to be tried for an offence and ordered to be detained in a correctional centre, mental health facility or other place; OR
•been found not guilty by reason of mental illness and ordered to be detained in a correctional centre, mental health facility or other place or released into the community subject to conditions.
Where a person is found “unfit to be tried” for an offence, the Tribunal must review the case as soon as practicable, and determine whether the person is likely to become fit to be tried within the next twelve months. The Tribunal may need to inform the Court whether the person is suffering from a mental illness, or from a mental condition which can be treated in a hospital. The Tribunal may also make recommendations to the Court concerning the person's care and treatment.
Where a person was unfit to be tried and then found guilty on the limited evidence at a Special Hearing and a limiting term set, the Tribunal must review the person’s case as soon as practicable. The Tribunal must inform the Court as to whether the person is suffering from a mental illness, or from a mental condition which can be treated in a hospital. The Tribunal also continues to monitor the person's fitness to stand trial.
A person on a limiting term will be released from the forensic order at the end of their limiting term unless released earlier by the Tribunal.
In the case of persons found to be “not guilty by reason of mental illness”, the Tribunal must review the case as soon as practicable, and make an order concerning the person’s detention, care and treatment. If the safety of the patient or the public will not be seriously endangered, the Tribunal may decide to release the patient either conditionally or unconditionally.
A person found not guilty by reason of mental illness remains a forensic patient until they are unconditionally released. The length of time varies depending on how each patient responds to treatment and rehabilitation. The length of time can vary from a few years to never being unconditionally released.
For more information on how a patient comes to be conditionally or unconditionally released, see the Forensic Guidelines issued by the Tribunal or the Forensic Policy Directive issued by the Ministry of Health.
The Tribunal has prepared an Information Sheet for forensic patients which provides information about its processes and hearings.
An inmate in prison may be transferred by the Director General of the Ministry of Health to a mental health facility if the Director General considers that it necessary for that person to have treatment and care in a hospital setting. The Tribunal must review the person and first determine whether the person is a mentally ill person who should be detained in a mental health facility. The Tribunal will then continue to review the correctional patient every 6 months.
Sometimes, the Director General orders an inmate to be transferred, but no bed is available in the mental health facility. In that case, the Tribunal will review the need for the transfer order once a month until the transfer takes place, or until the order is revoked.
Forensic Community Treatment Orders
The Tribunal may make a community treatment order for:
•a forensic patient recommended for conditional release or transfer to a correctional centre or other place;
•a correctional patient ordered to be transferred to a correctional centre;
•a person awaiting transfer from a correctional centre to a mental health facility
•an inmate of a correctional centre
All forensic patients are reviewed regularly by the Tribunal. These reviews usually take place every 6 months.
At reviews, forensic and correctional patients are entitled to free legal representation, provided by the Mental Health Advocacy Service, a branch of Legal Aid NSW. Alternatively, a forensic or correctional patient has the right to engage the services of a private lawyer.
Most Tribunal decisions about forensic and correctional patients are not made publicly available, as they contain private and sensitive information about patients. However, the Tribunal may decide to issue an official report of its proceedings. These will be posted on the website. The Tribunal has issued a practice direction on this issue.
Section 77A of the Mental Health (Forensic Provisions) Act 1990 sets out the rights of appeal against decisions of the Tribunal. Patients, the Attorney General, the Minister for Health and victims all have certain rights of appeal.