Forensic Procedures

Forensic Procedures

Forensic Procedures

The Tribunal has responsibilities under both the Mental Health Act 2007 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 in the forensic area. 

The Tribunal’s forensic division reviews:

  • Forensic patients
  • Those found unfit to be tried and referred to the Tribunal by the Court
  • Correctional patients and inmates waiting for transfer to a mental health facility
  • Those subject to Forensic Community Treatment Orders

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 to have committed a criminal act, but been found not criminally responsible by reason of a mental health or cognitive impairment.

Where a person is found “unfit to be tried” for an offence, but the Court has decided that the person may become fit, the Tribunal must review the person’s case as soon as practicable, and decide if the person has become is fit or will not become fit to be tried within the next twelve months.   

Where a person remains unfit to be tried, has had a special hearing and a limiting term has been set, the Tribunal must review the person’s case as soon as practicable. The Tribunal will continue to review the person throughout their limiting term, usually every 6 months.  The Tribunal can order that the person is release from detention to live in the community under conditions.

A person on a limiting term will stop being a patient at the end of their limiting term unless their forensic patient status is extended by the Supreme Court.

In the case of persons found to have committed the criminal act but not criminally responsible, 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 to have committed the criminal act but not criminally responsible 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 see 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.

Correctional Patients

An inmate in prison may be transferred by the Secretary of NSW Health to a mental health facility if the Secretary considers that it is 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 Secretary 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;
  • 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

For further information please refer to: Forensic Community Treatment Orders

Tribunal hearings

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.

Div 2 of Part 7 of the Mental Health and Cognitive Impairment Act 2020 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.