What persons does the Forensic Division review?
The forensic division reviews the following persons:
- Forensic patients
- Those found unfit to be tried, then released by the Court
- Correctional patients
- Those persons awaiting transfer to a mental health facility
- Those subject to Forensic Community Treatment Orders
The Tribunal has responsibilities under both the Mental Health Act 2007 and the Mental Health (Forensic Provisions) Act 1990 in the forensic area. However, following the enactment of the Mental Health (Forensic Provisions) Act 1990 the main provisions relating to the review of forensic patients are now contained in this Act.
Forensic Patients
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 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. The Tribunal may also make recommendations to the Court concerning the person's care and treatment.
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, and continue to monitor the person's fitness to stand trial.
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, or, if the safety of the patient or any member of the public will not be seriously endangered, as to the patient's release either conditionally or unconditionally.
Ongoing Reviews The Tribunal must review the case of a forensic patient at least once every six months (see below as to when this period may be extended) and may make an order concerning the person's continued detention, care and treatment, or release (either subject to conditions or unconditionally). These orders may stipulate where the patient is to be detained, under what kind of security, the range and kinds of leave (if any), and, if the patient is on conditional release, the range and kinds of conditions which apply 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 in emergency or special circumstances.
Unfit to be Tried, then Released by Court
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. The Tribunal may also make recommendations to the Court concerning the person's care and treatment.
Correctional Patients
In the case of persons transferred under authorisation 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 orders 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.
Ongoing Reviews The Tribunal must review the case of a correctional patient at least once every six months (see below as to when this period may be extended) and may make an order concerning the person's continued detention, care and treatment. The Tribunal may also make recommendations concerning the grant of leave for correctional patients to the Commissioner of the Department of Corrective Services.
The Tribunal must also consider and determine appeals by correctional patients against a failure or refusal by the Director General to grant a patient leave of absence in emergency or special circumstances.
Persons Awaiting Transfer to a Mental Health Facility
The Tribunal must conduct a limited review each month of those persons awaiting transfer from a correctional centre to a mental health facility. Following these limited reviews the Tribunal may make an order regarding the inmates' care, treatment and detention, or revoke the order for transfer.
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
In general terms, Part 3 of Chapter 3 of the Mental Health Act 2007 applies to the making of a community treatment order, with some variations applying as prescribed by the Mental Health (Forensic Provisions) Regulation 2009.
The Tribunal must then review the case of each person who is subject to a forensic community treatment order and detained in a correctional centre every three months.
Involvement of Relatives and Victims
The Tribunal reviews are open to the public and it may be possible for relatives of forensic or correctional patients or registered victims to attend hearings and make oral submissions in person, depending on the arrangements of the venue where the hearing is to be held. However, there are some venues, which prevent such attendance.
Submissions from relatives, carers and registered victims will be received in writing by the Tribunal for consideration of the panel on the review of the forensic or correctional patient.
Forensic Patient Victims Register
A Forensic Patient Victims Register is maintained by the Forensic Unit of the Mental Health Review Tribunal. Information about the Victims Register is contained in the Information for Registered Victims brochure. To join the Victims Register please complete a registration form and return it to the Tribunal. Further information can be obtained from the Team Leader, Forensic Unit - Telephone: 9816 5955.
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 and correctional patients are reviewed by the Tribunal at least once every six months. Forensic and correctional patients are entitled to free legal representation, provided by the Mental Health Advocacy Service, a branch of the Legal Aid Commission. Alternatively, a forensic or correctional patient has the right to engage the services of a private lawyer.
Following a Tribunal hearing, the Tribunal may issue orders in relation to the care, treatment, detention or release of patients. In some cases, the Tribunal may reserve its decision and notify participants of the outcome at a later date.
Although the periods of review are set out above, this may be extended by the Tribunal to up to 12 months if the Tribunal is satisfied that there are reasonable grounds, and an earlier review is not required as there has been no change in the person's condition, and an earlier review may be detrimental to the condition of the patient.
In cases where a forensic or correctional patient's sentence is due to expire within six months of the Tribunal review, the Tribunal may make the person an involuntary patient. This ends the person's status as a forensic or correctional patient.
Other provisions of the Mental Health Act 2007 also apply to forensic patients. These include various forms of treatment and therapy. In particular, the principles for care and treatment as set out under section 68 of the Mental Health Act 2007 apply to forensic and correctional patients, as do the provisions under section 79 for discharge and other planning.
More Information
More information about forensic patients and the Tribunal's procedures is available in the Tribunal's Forensic Procedure Note.