Criminal offences and mental health

Mental Health Act 2016

A mental illness is legally defined under the Mental Health Act 2016 s 10(1), as “….a condition characterised by a clinically significant disturbance of thought, mood, perception or memory”.

The Mental Health Act 2016 s 3(1) states its main objectives are:

• to improve and maintain the health and wellbeing of people who have a mental illness who do not have the capacity to consent to be treated
• to enable people to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial
• to protect the community if people diverted from the criminal justice system may be at risk of harming others.

The Mental Health Act 2016 affects only a small number of people with mental illness (as it doesn’t generally provide for voluntary treatment for mental illness). It may apply to your situation if:

• there are concerns about your mental health and it’s determined there's no less restrictive way to ensure you receive appropriate treatment for your mental illness
• you’ve been charged with a criminal offence and there are concerns about your mental state at the time of the offence or fitness for trial.

Visit the Queensland Government website for more information.

Being charged with an offence

If you've been charged with a criminal offence while diagnosed with a mental illness, you may have to go to a special court called the Mental Health Court.

The Mental Health Court is a special hearing of the Supreme Court that makes decisions about criminal cases where the accused person may have a psychiatric or intellectual disability. This court can decide if a person was of unsound mind at the time the offence was committed, is temporarily unfit for trial, or is permanently unfit for trial.

If the person was of unsound mind at the time the offence was committed, or they are permanently unfit for trial, the Mental Health Court may make:

• a forensic order giving authority for a person to be detained in an authorised mental health service for treatment or care, or
• a treatment support order—involving less oversight than a forensic order, or
• no order.

If the person is temporarily unfit for trial, the Mental Health Court must make either a forensic order or a treatment support order.

If the Mental Health Court decides to make a forensic order or a treatment support order, the court must also decide the category—inpatient or community.

A forensic order can only be revoked by the Mental Health Review Tribunal or the Mental Health Court if they are hearing an appeal against a Mental Health Review Tribunal decision.

You should get legal advice if you’ve been charged with a criminal offence while being diagnosed with a mental illness.

Do I need legal advice?

You may need legal advice if:

• you’re preparing to appear at the Mental Health Review Tribunal
• you’ve been charged with a criminal offence and are going to the Mental Health Court or you want to be referred to the Mental Health Court.

How to get legal advice

We may give legal advice if you’ve been charged with an offence while diagnosed with a mental illness.

We may be able to provide representation:

• if you are appearing in the Mental Health Court
• if you are appearing in the Mental Health Review Tribunal for matters including:
  • electroconvulsive therapy (ECT) applications
  • all hearings involving minors
  • hearings of a person’s fitness for trial
  • when the Attorney-General is represented.

We also may be able to give advice on appeals from matters in the Mental Health Review Tribunal to the Mental Health Court.

We don’t give advice about general mental health matters. Contact a mental health or counselling service near you.

The following organisations may also be able to give you legal advice:

Mental Health Legal Service (Queensland Advocacy Incorporated) provides legal advice and casework services for people who have matters before the Mental Health Review Tribunal, including treatment authorities (previously called involuntary treatment orders), reviews of forensic orders, fitness for trial, and more.

LawRight Mental Health Law Clinic gives legal information and advice about involuntary treatment orders, the Mental Health Review Tribunal and other associated civil law issues arising as a result of a person's mental health problem (eg housing or credit or debt law issues). The service also gives help and advocacy services to clients with treatment authority and ECT hearings in the Mental Health Review Tribunal.

Community legal centres give legal advice on a range of topics. Contact them to find out if they can help with your matter.

Queensland Law Society can refer you to a specialist private lawyer for advice or representation.

Who else can help?

These organisations may be able to help. They don’t give legal advice.

beyondblue is a 24 hour a day, 7 days a week support service for people with depression and anxiety. They have information and resources to help you, and can make referrals to mental health professionals.

Lifeline is a crisis counselling line giving support 24 hours a day, 7 days a week.

Suicide Call Back Service is a free nationwide telephone support service for people at risk of suicide, their carers and those bereaved by suicide.

headspace helps young people (12-25 years) who are going through a tough time to access health advice, support and information.

Mental Illness Fellowship Queensland has support services for people affected by mental illness and advocates on behalf of people with mental illness.

Office of the Health Ombudsman deals with complaints about health care providers, including mental health care services.

Queensland Health has information about the Mental Health Act 2016. They also deliver integrated services, including community and mental health services.

Office of the Public Guardian is an independent statutory body responsible for protecting the rights and interests of adults who can't make independent decisions.

Queensland Health Services provide health care in the community for acute and on-going problems, including physical, psychological and emotional health issues.

Association of Relatives and Friends of the Mentally Ill has support services for families and friends of people with mental illness and psychiatric disabilities.