What is a Forensic Patient?
A Forensic Patient is a person:
- Who has been found by a Court to be unfit to be tried for a criminal offence, and is detained in a hospital, prison or other place
- Who is detained in a hospital after being transferred there from a prison
- Who has been found not guilty by a Court, because of mental illness
Many of these people will continue to be forensic patients when conditionally released in the community under a plan of management.
The Tribunal has responsibilities under both the Mental Health Act 2007 and the Mental Health (Criminal Procedure) Act 1990 in the forensic area. However, following the enactment of the Mental Health Act 2007 the main provisions relating to the review of forensic patients are now contained in the Mental Health (Criminal Procedure) Act 1990.
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 also be required to consider whether the person is suffering from a mental illness, or from a mental condition for which treatment is available in a mental health facility.
In the case of a person found unfit to be tried and subsequently found to be guilty on the limited evidence available at a Special Hearing and ordered to be detained, the Tribunal must review the case as soon as practicable and inform the Court as to whether the person is suffering from a mental illness, or from a mental condition for which treatment is available in a hospital. If the Court then makes a further order for detention in a correctional centre, mental health facility, or other place, the Tribunal must review the person as soon as practicable and make recommendations to the Minister concerning the person's care, treatment, and detention.
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 recommendations to the Minister concerning the person’s detention, care and treatment, and whether it is appropriate to release the person either conditionally or unconditionally.
In the case of persons transferred under authorization of the Director General of the Department of Health from prison to a mental health facility as a “mentally ill person”, for appropriate treatment and care, the Tribunal must review the case and make recommendations concerning the person’s detention, care and treatment. The tribunal is to determine whether the person is a mentally ill person who should be detained in a mental health facility.
The Tribunal must also informally review each month those inmates for whom an order has been made by the Director-General for their transfer from a correctional centre to a hospital for treatment of a mental illness or mental condition. Following these informal reviews the Tribunal must make a recommendation to the Director-General as to whether or not the transfer should occur, and may make recommendations to the Minister regarding the inmates' care, treatment, and detention
The Tribunal must review the case of a forensic patient at least once every six months and make a recommendation to the Minister for Health concerning the person’s continued detention, care and treatment, or the appropriateness of their release. That recommendation may stipulate where the patient is to be detained, under what kind of security, the range and kinds of leave (if any) which can be enjoyed, and, if the patient is on conditional release, the range and kinds of conditions which apply in order to allow the patient's continuing presence in the community.
The Tribunal must also consider and determine appeals by forensic patients against a failure or refusal by the Director-General to grant a patient leave of absence.
The Tribunal can make a Community Treatment Order for a forensic patient recommended for conditional release or transfer to a correctional centre or other place. (Any such order has effect only if the Minister for Health confirms it in writing). It can also classify a forensic patient as an Involuntary Patient if the patient would cease to be a forensic patient within 6 months after the date of the review.
The Tribunal must also carry out an informal review each month of those forensic patients awaiting trial or a Special Hearing and take such action as the Tribunal sees fit if any delay in the proceedings occurs.
Involvement of Relatives and Victims
A Forensic Patient Victims Register is maintained by the Forensic Executive Support Unit of the Statewide Forensic Directorate at Justice Health. Information on the role of the Victims Register can be obtained from the Forensic Executive Support Unit - Telephone: 8295 7000.
A Fact Sheet 'Mental Illness and Serious Crime' has been developed by the Tribunal and the Victims Services Branch of the NSW Attorney General's Department. This sheet explains how a person who has committed an offence can be found not guilty by reason of mental illness in the criminal justice system in NSW. It also provides other information which may be of interest to victims of serious crime. This fact sheet can be viewed by clicking on the following link: Mental Illness and Serious Crime.
Forensic procedures
Under the legislation, all forensic patients are reviewed by the Tribunal at least once every six months. Forensic patients are entitled to free legal representation, provided by the Mental Health Advocacy Service, a branch of the Legal Aid commission. Alternatively, a forensic patient has the right to engage the services of a private lawyer.
Following a Tribunal hearing, recommendations are made to the Minister for Health regarding the forensic patient's continued detention, treatment, transfer, or release which may be conditional or unconditional.
In cases where a forensic patient's sentence is due to expire within six months of the Tribunal review, the Tribunal may make the person a continued treatment patient. This ends the person's status as a forensic patient.
Other provisions of the Mental Health Act 2007 also apply to forensic patient. These include various forms of treatment and therapy. Orders may also be made under the Protected Estates Act 1983.
More Information
More information about forensic patients and the Tribunal's procedures is available in the Tribunal's Forensic Procedural Note.