Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (2024)

[30-000] Overview

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which replaced the Mental Health (Forensic Provisions) Act 1990 (the 1990 Act), provides a mechanism for magistrates to deal with persons with mental health impairments or cognitive impairments otherwise than in accordance with law. All references to provisions in this chapter are to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) unless otherwise stated.

Cases decided before the Act commenced, addressing those aspects of the 1990 Act which were unchanged, remain useful. The references in those cases to the old provisions have been updated to reflect the current legislation.

A table of the sections in the 1990 Act corresponding to those in the Act follows.

1990 Act	Corresponding provision/s in 2020 Act
s31	s8 Application of Part
s32(1)	s12 Defendants with mental health or cognitive impairments, see also s9 Order may be made at any time and s15 Considerations
s32(2)	s13 Adjournment of proceedings, see also s15 Considerations
s32(3)	s14(1) Orders
s32(3A), (3D)	s16(1), (4) Non-compliance*
s32(4)	s14(2) Orders
s32(4A), (4B)	s11(1), (2) Reasons for decisions
s32(6)	s5 Cognitive impairment*
s32A(1), (3)	s17(1), (3) Reports from treatment providers*
s33(1)	s18(1), (2) Mentally ill or disordered persons* and s19 Orders*, also see s9 Order may be made at any time
s33(1A), (1B)	s20(1), (2) Community treatment orders
s33(1D), (4B), (4C)	s21(1), (3) Proceedings before authorised justice
s33(2), (4)	s23(1), (3) Dismissal of charges
s33(4A)	s11(1) Reasons for decisions
s33(5)	s26 Regulations*
s33(5A), (5AB), (6)	s22 Transfer of defendants by certain persons*
s33(5B), (6)	s24 Bail*
s33(6)	s7(1) Definitions*
s35	s25 Transfer from correctional/detention centre
s36	s10 Means by which magistrate informed

Note:: Although many of the provisions in the 2020 Act are largely in the same terms, or to the same effect, as the corresponding provisions in the 1990 Act, those provisions marked with a * are either new or different in some material way.

Part 2 of the Act relating to summary proceedings applies to criminal proceedings commencing from 27 March 2021. Part 3 of the 1990 Act continues to apply to criminal proceedings which commenced before that date: s8, Sch 2.

The provisions only apply to summary offences, or to indictable offences triable summarily: s8(1). The provisions do not apply to committal proceedings: s8(2).

Reasons must be given for any decision to make, or refuse to make, any order pursuant to Pt 2 of the Act: s11. It is not mandatory to disqualify oneself from hearing a matter if a s12 application is refused, but care must be exercised.

At those courts where the service is available, the clinical nurse consultant will provide a report to assist the court’s determination of the matter. Frequently, if there is not a diagnosis of mental illness, the nurse may identify a cognitive impairment/intellectual disability.

Section 15 outlines the factors a magistrate may consider in determining a s12 application (see below at [30-060]). The overview of the exercise of the court’s discretion discussed in DPPv El Mawas (2006) 66 NSWLR 93, which concerned an application pursuant to s32 of the 1990 Act, remains useful.

[30-020] To whom do the provisions relate?

Section 12 allows a magistrate to deal with a person under Div 2 if:

[I]t appears to the magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both.

However, s12(3) provides that Div 2 does not apply if the defendant is a mentally ill person or a mentally disordered person. In such cases, s18 (in Div 3) provides a mechanism for dealing with those defendants. A mentally ill person or a mentally disordered person is defined in the Mental Health Act 2007.

See also Person suffering from a mental illness, Commonwealth Offences chapter at[18-140].

[30-040] Definitions — ss 4, 5 Mental Health and Cognitive Impairment Forensic Provisions Act 2020; ss4(1), 14, 15 Mental Health Act 2007

Mental health impairment — defined in s4 Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Under s4(1), a person has a “mental health impairment” if:

(a): they have a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
(b): the disturbance would be regarded as significant for clinical diagnostic purposes, and
(c): the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

It may arise from an anxiety disorder, an affective disorder including clinical depression and bipolar disorder, a psychotic disorder, a substance-induced mental disorder that is not temporary, or other reasons: s4(2). However, a person does not have a mental health impairment under the Act if it is caused solely by the temporary effect of ingesting a substance, or a substance-use disorder: s4(3).

Cognitive impairment — defined in s5 Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Under s5(1), a person has a “cognitive impairment” if:

(a): they have an ongoing impairment in adaptive functioning, and
(b): they have an ongoing impairment in comprehension, reason, judgment, learning or memory, and
(c): the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from conditions identified in s5(2).

Section 5(2) provides that a cognitive impairment may arise from any of the following conditions but may also arise for other reasons:

(a): intellectual disability
(b): borderline intellectual functioning
(c): dementia
(d): acquired brain injury
(e): drug or alcohol-related brain damage, including foetal alcohol spectrum disorder,
(f): autism spectrum disorder: s5.

Mental illness — defined in s4(1) Mental Health Act 2007

A “mental illness” means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a)

delusions,

(b)

hallucinations,

(c)

serious disorder of thoughtform,

(d)

a severe disturbance ofmood,

(e)

sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

Mentally ill persons — defined in s14 Mental Health Act 2007

(1)

A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

(a)

for the person’s own protection from serious harm,or

(b)

for the protection of others from seriousharm.

(2)

In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.

See Also
Intellectual Disability DSM-5 319 (F79)Intellectual Disability Crime and Disorder Act 1998 Section 32 of the Mental Health Act (NSW)

When the definition of “mentally ill persons” was inserted in the Mental Health Act 1990 by the Mental Health Legislation Amendment Act 1997, the explanatory note for this section stated:

A person may not be involuntarily detained under the Act unless the person is a mentally ill person or a mentally disordered person. The amendment inserts a new definition of mentally ill person that removes the existing requirement that a person suffering from a mental illness is such a person if the person requires care, treatment or control for the protection of the person or others from serious physical harm … The effect of this is to enable other kinds of harm, such as financial harm or harm to reputation, to be considered when determining whether a person can be detained as a mentally ill person. The new definition omits the existing provisions classifying persons suffering from certain mental illnesses characterised by severe disturbance of mood or sustained or repeated irrational behaviour as mentally ill if they require care, treatment or control for protection from serious financial harm or serious damage to reputation. The new definition also makes it clear that, in assessing whether a person is a mentally ill person, any likely deterioration in the person’s condition and its effects is to be taken into account.

Mentally disordered persons — defined in s15 Mental Health Act 2007

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

(a)

for the person’s own protection from serious physical harm,or

(b)

for the protection of others from serious physical harm.

This category covers persons who are behaving irrationally and are a danger to themselves or to others.

[30-060] An inquiry under s12

The question of the use of these provisions in dealing with a defendant is a discretionary one for the magistrate: see Quinn v DPP [2015] NSWCA 331 at[5]. In coming to a conclusion, the magistrate may inform themselves in any way they think fit, but a defendant is not required to incriminate themselves: s10. The powers in s10 must be exercised in accordance with the requirements of procedural fairness: DPP v El Mawas (2006) 66 NSWLR 93 at[74].

Section 15 lists the matters a magistrate may consider when deciding the appropriateness of dealing with a defendant in accordance with Div 2:

(a): the nature of the defendant’s apparent mental health impairment or cognitive impairment;
(b): the nature, seriousness and circ*mstances of the alleged offence;
(c): the suitability of the sentencing options available if the defendant is found guilty of the offence;
(d): relevant changes in the circ*mstances of the defendant since the alleged commission of the offence;
(e): the defendant’s criminal history;
(f): whether the defendant has previously been dealt with under the Act or s32 of the 1990 Act;
(g): whether a treatment or support plan has been prepared, and the content of that plan;
(h): whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public;
(i): other relevant factors.

These factors, which inform the discretion of the magistrate, pull in different directions depending on the circ*mstances. The inclusion of “other relevant factors” in s15(i) ensures a broad discretion. Further, Spigelman CJ in DPP v El Mawas at[4] noted it “can be accurately described as conferring a ‘very wide discretion’” (also see Quinn v DPP [2015] NSWCA 331 per Basten JA at[5]).

The rules of evidence do not apply: Jones v Booth [2019] NSWSC 1066 at[53].

A magistrate should have an outline of the facts, and to this end a copy of the alleged facts and record may be handedup.

If the application is made by the defendant they should be asked to tender the documents that they rely upon for the making of an application under the section. Usually these will be medical or psychiatric/psychological reports. It is, of course, open to the prosecution to seek to have the authors of such reports made available for cross-examination. Directions should be made requiring the service upon the prosecution of any medical evidence relied upon in the proceedings. It may be necessary to adjourn the proceedings to allow for this to happen: s13.

The content of a psychologist’s report may be considered when determining an application. It is wrong to proceed on the basis that only psychiatric reports may be received. The type of report which may be appropriate depends on the particular case: Jones v Booth at[57], [59].

Section 12(2) requires the magistrate to have regard to the matters placed before the court, and to consider if it would be more appropriate to deal with the defendant in accordance with the provisions of Div 2 than otherwise in accordance with law. R v HW [2017] NSWLC 25 at[69] states:

It is recognised by appellate courts that the determination by a magistrate, whether to divert [a defendant] … requires a weighing of different interests, including the interest of an accused in receiving treatment and the public interest in those charged with criminal offences being dealt with according to law. Issues impacting on the magistrate’s determination include the seriousness of the offence, issues of community safety, the limited duration of a section 32 order (6 months)*, the efficacy and specificity of a treatment plan, and issues of deterrence in sentencing (refer DPP v El Mawas (2006) 66 NSWLR 93; Quinn v DPP [2015] NSWCA 331; DPP v Saunders [2017] NSWSC 760).

* An order under s14 order may be made for up to 12 months: s16(1).

The Act requires the inquiry to be a three-stage process:

first, to decide whether, as a question of fact, the defendant comes within the definition pursuant to s12
second, to decide, as a matter of discretion whether to deal with the matter otherwise than according to law. In coming to a conclusion the magistrate will need to consider not only the material before the court, but must have regard to the public interest (see also s15). Regard must be had to the public interest in the defendant having treatment mandated by the court, and the public interest in having the matter dealt with accordingtolaw
third, once it has been determined that it is more appropriate to deal with the defendant in accordance with s12, the magistrate must determine which of the actions set out in ss13 and 14 should be taken.

Section 13(a) permits adjourning the proceedings to enable:

(i): an assessment/diagnosis of the defendant’s apparent mental health or cognitive impairment,
(ii): development of a treatment/support plan,
(iii): a responsible person for an order to be identified, or
(iv): any other reason the magistrate considers appropriate.

Section 13(b) permits making other interim orders the magistrate considers appropriate.

Section 14(1) provides that the magistrate may dismiss the charge and discharge the defendant:

(a)

into the care of a responsible person, unconditionally, or subject to conditions

(b)

on the condition that the defendant attend on a person or at a specified place for assessment, treatment, or the provision of support for the defendant’s mental health impairment or cognitive impairment [this will be generally to attend a community medical centre, or psychiatrist, or in the case of intellectual disability, a suitable support facility].

Note: Section 14(1)(b) requires the person or place nominated to be specified with some precision. Failing to name a particular person or particular place would render enforcement under s16 virtually nugatory: DPP v Saunders, at[47], or

(c)

unconditionally.

A magistrate must give reasons for making a decision: s11; Jones v Booth at[56].

In many cases it will be appropriate for a magistrate to:

express a brief finding as to whether the defendant falls within s12(1), and if so, noting the nature of the impairment/s,
indicate the balancing test in s12(2) and the seriousness of the offence has been taken into account, and
briefly discuss the proposed support/treatment and why it should be adopted or rejected.
See Also
How to Prove My Mental Illness

Such findings can be expressed as sentences, rather than paragraphs or pages: DPP v Soliman [2013] NSWSC 346 at[61].

The magistrate would normally sign a formal order which might be in the following terms:

Order — s14, persons suffering from mental health impairment or cognitive impairment

It appears to me:

(a): That the defendant has/had a mental health impairment or cognitive impairment.
(b): That, on an outline of the facts alleged in the proceedings or such other evidence as I consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of Pt 2 Mental Health and Cognitive Impairment Forensic Provisions Act than otherwise in accordance with law.

I make the following orders:

[The orders should be set out fully and clearly.]

[These conditions should be contained clearly in a “treatment plan”/“support plan” which should form part of the psychiatrist’s, psychologist’s or support worker’s report.]

If the charge is dismissed, this does not constitute a finding that the charges are proven or otherwise: s14(2). Where charges are dismissed subject to conditions, there is sanction if any of the conditions imposed are not compliedwith.

[30-080] Enforceability of s14 conditional discharge orders

Section 16

If the court becomes aware that any conditions of a discharge are not being fulfilled, it may, within 12 months of the order being made, issue a call-up notice (or warrant if the defendant fails to appear or if their whereabouts are unknown) to bring the defendant back before it.

The following procedure is suggested when making a conditional discharge order to assist in enforcement procedure:

ensure the service provider (community health centre, disability service or psychiatrist, etc) has provided a written report and is able to provide the service which will form the conditions of discharge
any “responsible person” in whose care the defendant is placed is aware of the conditions and consents to the order
the defendant has consented to the service provider notifying the court or Community Corrections in the event of a breach
it is not appropriate to include a conditional discharge order that the defendant be of good behaviour or that he or she be supervised by Community Corrections. If any reference is to be made to Community Corrections the following wording is suggested:

Suggested order — s14, conditional discharge orders

“Should the defendant fail to comply with any of the conditions of this order, he/she may be called to appear before the court, following notification by the treatment provider to the court or Community Corrections of non-compliance and the charge may be dealt with as if the defendant had not been discharged.”

Breaches of s14 conditional orders will be notified to the court by Community Corrections, which has negotiated a protocol with service providers, statewide. Notice of breach will be given to a magistrate who can then decide whether to action the matter pursuant to s16(2) or (3).

[30-100] Breach proceedings

1.: Breach proceedings can only be taken up to 12 months after a conditional discharge: s16(1).
2.: Committing further offences does not automatically result in a breach of a conditional discharge order. A breach must result from a failure of the defendant to comply with mental health or disability service support conditions.

[30-120] Orders under s18 Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Section 18 provides a mechanism for dealing with a defendant where “it appears to the Magistrate that the defendant is a mentally ill person or a mentally disordered person” within the meaning of the Mental Health Act 2007: see definitions of “mental illness” and “mentally disordered person” at [30-040]. Under the 1990 Act, the power did not extend to “mentally disordered” persons. The word “appears” in s18(1) is to be determined by the subjective state of mind of the magistrate: State of NSW v Talovic (2014) 87 NSWLR 512 at [133]–[135] — see interpretation of similar wording used in s22 Mental Health Act 2007.

Section 19 provides that the magistrate may:

(a): order that the defendant be taken to, and detained in, a mental health facility for assessment, and/or
(b): order that the defendant be taken to, and detained in, a mental health facility for assessment and if the defendant is found on assessment not to be a mentally ill person or a mentally disordered person, the person be brought back before a magistrate or an authorised officer as soon as practicable unless granted bail by a police officer at that facility, and/or
(c): discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person.

An order under s19(c) could be made if the defendant is subject to a current community treatment order. Care should be taken when making an order under this provision: see further discussion at [30-200].

The magistrate must state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under s19: s11.

Orders under s19 must be made with the defendant present and not in chambers in the absence of the parties: DPP v Wallman at [30]–[31].

Section 21(1) provides an authorised justice (which has the same meaning as in the Bail Act 2013 and includes registrars) in the hearing of proceedings under the Bail Act may make orders in identical terms to those in (a) and (b), above, if it appears to the authorised justice that the defendant is a mentally ill person or a mentally disordered person. The authorised justice must state the reasons for making a decision as to whether or not a defendant should be dealt with under s21(1): s21(2). See further discussion concerning bail below at [30-180].

If an order has already been made by an authorised officer under s21(1) in bail proceedings, it is an error for a magistrate to make another order either under s19(a) or (b): DPP v Wallman [2017] NSWSC 40 at[33].

“Mental health facility” in the Act (including in ss19 and 21) has the same meaning as it has in s4 of the Mental Health Act: s3(2). The expression is defined as “a declared mental health facility or a private mental health facility”.

An order by a magistrate or authorised justice may provide that a defendant be “taken to or from a place”, in the case of a defendant under 18 years of age, by a juvenile justice officer, or in the case of any defendant, by a person of a kind prescribed by the regulations: s22.

Clause 29 Mental Health and Cognitive Impairment Forensic Provision Regulation 2021 prescribes the persons who may “take a defendant to or from a place” for the purposes of s22(1)(b). Specific people are prescribed where the defendant is on remand or serving a sentence of imprisonment. “Otherwise”, a prescribed person includes a member of the NSW Health Service, a police officer, a correctional officer, a juvenile justice officer or a person who provides a transport service approved for that purpose by the Secretary.

It is essential that copies of the court attendance notices, police facts and any other material relied on in the proceedings such as medical reports that may assist the medical authorities at the mental health facility, accompany the defendant to the mental health facility.

It is usual for the magistrate to sign formal orders which might be in the following terms:

Order — s19, mentally ill persons or mentally disordered persons

It appears to me that the defendant is a mentally ill person or mentally disordered person within the meaning of the Mental Health Act 2007.

I make the following order:

[Here set out clearly and in detail the orders to be made under the section.

Identify the specific sub-section in s19 being utilised, the person (including any police officer) charged by the order with taking the person under cl 29 Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021 and the mental health facility the person is to be taken to and from.]

Also see [Psychiatric (Mental Health) Report Request Form] issued by Justice Health and Forensic Mental Health Network.

Whether making an order under s 19(a) or (b), the person is to be taken to, and detained in a mental health facility for assessment. In either case, there is no certainty as to the outcome of the assessment: see DPP v Wallman at[37]–[39].

An order under s19(a) or (b) (in appropriate cases) will effectively become a final diversionary order where the police indicate to the authorised medical officer under s32(4) Mental Health Act that they will not apprehend the defendant: see discussion at [30-140]. In considering the 1990 Act, the NSWLRC report stated that the previous s33(1)(a) could be used in this way for minor offences where the court takes the view that the best course is to have the defendant deal with their mental health issues: NSWLRC, People with cognitive and mental health impairments in the criminal justice system – Diversion, Report No 135, 2012 at[10.21]–[10.25] referred to in State of NSW v Roberson (2016) 338 ALR 166 at[45]. Section 23(1) provides that the charges are taken to be dismissed 6 months from the date of the s19 order.

In other cases such as indictable offences dealt with summarily or repeat offenders, an order under s19(a) or (b) (in appropriate cases) may not be a final order because the police choose to apprehend the detained person under s32(4) Mental Health Act and take them to court and have the charges relisted: DPP v Wallman at[39]. See further explanation at [30-140].

If an order is made under s19(b), the outcome of the assessment will determine whether the proceedings continue at a later date. If, after an assessment, the defendant is found to be neither a mentally ill person nor a mentally disordered person, the police are required by the s19(b) order to apprehend the defendant under s32(5) Mental Health Act and to take the defendant back to court. Notwithstanding the terms of s19(b), s18(2) provides the selection of an order under s19(a), (b) or (c), does not affect any other order the magistrate may make and the court may make any other order(s) as required by the case. The original court papers can be relisted for the defendant to be dealt with further.

[30-140] Detention and release following an order under s19

Where a s19 order has been made it is important to understand the interplay and direct connection between the Mental Health Act 2007 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (referred to in this section as the 2020 Act), including the critical role that the police play in determining the course of the proceedings.

Chapter 3 Pt 2 Div 2 Mental Health Act (ss18–33) deals with the management of a defendant when they are detained in a mental health facility including orders made under Pt 2, Div 3 of the 2020 Act.

Sections 18(1)(e) and 24 Mental Health Act provide that a person may be “taken” to and “detained” in a declared mental health facility in accordance with an order made by a magistrate under Pt 2, Div 3 of the 2020 Act. Section 27(1)(a) Mental Health Act requires that the first assessment be conducted by an authorised medical officer as soon as practicable but within 12 hours and further assessments done thereafter under s27(1)(b) and (c) if required. Reports are to be prepared in accordance with Form 1 Sch 1 Mental Health Regulation 2019.

From the time the s19 order is made, until the conclusion of the assessment process, the person remains in continuous detention. Even after the assessment has concluded, if the person is admitted for treatment, their detention continues under the provisions of the Mental Health Act.

Where on the order of a magistrate under Pt 2, Div 3 of the 2020 Act a person has been detained in a mental health facility but following an assessment, is not required “to be detained or further detained”, s32 Mental Health Act takes effect: see s32(1)(b). The circ*mstances or scenarios to which s32 applies are as follows:

(i): The defendant has been taken to the mental health facility following an order under s19(a) of the 2020 Act to be detained for an assessment. Following detention for assessment, it is decided the defendant is not a mentally ill person and does not require an admission for treatment.
(ii): The defendant has been taken to the mental health facility following an order under s19(a) of the 2020 Act to be detained for the purpose of an assessment. Following detention for assessment, the defendant is then further detained as an involuntary patient for treatment and at the conclusion of that treatment is no longer required to be further detained.
(iii): The defendant has been taken to the mental health facility following an order under s19(b) of the 2020 Act to be detained for the purpose of an assessment. Following the detention for assessment, the defendant is then found by the medical officer not to be a mentally ill or a mentally disordered person and, the defendant is to be brought back before a magistrate or authorised officer, unless the defendant is granted bail by a police officer at the facility.
(iv): The defendant has been taken to the mental health facility following an order under s19(b) of the 2020 Act to be detained for the purpose of an assessment. Following the detention for assessment, the defendant is found to be a mentally ill or mentally disordered person, is further detained as an involuntary patient for treatment and at the conclusion of that treatment is no longer required to be further detained.

Scenarios (i) and (ii) both involve orders under s19(a). An order under s19(a) does not, of itself, terminate the Local Court’s jurisdiction even if the defendant is dealt with further under the Mental Health Act — unless the detention continues for 6 months without the defendant being brought back to court: s23(1) of the 2020 Act; DPP v Wallman [2017] NSWSC 40 at[39]–[41].

Under scenarios (i) and (ii) if a defendant the subject of an order under s19(a) is found to be mentally disordered but is not, or ceases to be, mentally ill, they may not be held for more than 3 days: DPP v Wallman at[37] citing s31 Mental Health Act. An authorised medical officer must examine a mentally disordered person detained in a mental health facility at least once every 24 hours: s31(3) Mental Health Act. If the person is found to be, or becomes, neither mentally disordered nor mentally ill, he or she must not be further detained: s32(1)–(2) Mental Health Act; DPP v Wallman at[37].

Section32(2) Mental Health Act mandates the release of the defendant by the authorised medical officer into the custody of the person who took the defendant — that is, police officer, juvenile justice officer, corrective services officer as the case may be (see definition in s32(7) Mental Health Act of “relevant person”) — who is present at the mental health facility in accordance with the order under Pt 2, Div 3 of the 2020 Act. This release into custody under s32(2) is for the purpose of ascertaining “the results of any examination or examinations of the defendant”. It appears to assume that the person who took the person to the mental health facility remains there during the assessment.

Section 32(3) Mental Health Act provides that if that person is not present when the authorised medical officer “becomes aware the defendant is no longer required to be detained, or further detained”, the authorised medical officer must notify a police officer at the appropriate police station as soon as practicable that the defendant will not be further detained.

Section 32(4) Mental Health Act provides a framework of options or actions for the authorised medical officer (other than for scenario (iii) where s32(5) applies) for orders made under Pt 2, Div 3 of the 2020 Act (in appropriate cases). Section32(4) makes clear that the authorised medical officer is to consider any matter “communicated by a police officer as to the intended apprehension of the person by a police officer”. It is at this point that the police may exercise a prosecutorial discretion not to apprehend the defendant and return the defendant to court. It is only “after” considering any matters communicated by police, may the authorised medical officer do any of the following under s32(4):

detain the person for a period not exceeding two hours pending apprehension by a police officer,
admit the person as a voluntary patient,
discharge the person into the care of the person’s primary carer,
discharge the person.

A police officer may apprehend a person under s32 Mental Health Act without a warrant: s32(6). If the police apprehend the defendant, cl 29 Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021 empowers the police to take the defendant “from” the mental health facility back to court.

If after notification the police do not apprehend the person, the charge is deemed to be dismissed six months after the date of the s19 order: s23(1) of the 2020 Act.

In scenario (iii) where the order was made under s19(b) of the 2020 Act, it is the duty of the police officer notified by the authorised medical officer to ensure that a police officer attends the mental health facility and apprehends the person as soon as practicable after the notification. In the meantime, s32(5) Mental Health Act provides that the authorised medical officer must detain the person pending apprehension by the police.

If an order has been made under either s 19(a) or (b) of the 2020 Act, and the defendant is brought back before the court, s23(2) provides that any period of time spent in the mental health facility as a consequence of the order must be taken into account when dealing with the charge.

As it is likely that any person returned to the court will be in custody, Pt 3 Bail Act 2013 relating to the making and variation of bail decisions applies.

[30-160] The prosecution and s19 orders

The statutory scheme, as framed, envisages that the police will play an active role both in terms of taking the defendant “to and from” the court and in deciding either to apprehend the defendant and continue proceedings, or to utilise s32(4) Mental Health Act as a diversionary option. It is well settled that the decision to prosecute or continue proceedings is not part of the Local Court’s function: Elias v The Queen (2013) 248 CLR 483 at[34]. Unlike s14 orders (see [30-060]), the decision to divert the defendant is made by the prosecution and not by the Local Court. The High Court has emphasised “the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings”: Likiardopoulos v The Queen (2012) 247 CLR 265, French CJ at[2].

It is self-evident that after a s19(a) or (b) order has been made, it is incumbent on the police to liaise closely with the mental health facility. The practical and communication difficulties that sometimes occur between the mental health facility and the police are not an issue for the Local Court to resolve. The jurisdiction of the Local Court is only enlivened if the procedures and provisions, set out above, are followed and applied. It is important to also note that Parliament envisages that the police have a role to play during the detention period. Section32(2) Mental Health Act provides that an authorised medical officer must release the person into the custody of any relevant person who is present at the mental health facility to ascertain the results of any examination or examinations of the person. The “relevant person” definition in s32(7) Mental Health Act includes “any person (including a police officer) charged by the order with taking the person from the facility.” [Emphasis added.]

[30-180] Section 19 and bail

Section 8 of the 2020 Act permits a magistrate to make an order under s19 in proceedings under the Bail Act 2013.

Section 18(2) provides a magistrate may make an order under Pt 2, Div 3 of the Act without affecting any other order the magistrate may make, whether by way of adjournment or in relation to bail.

Section 12 Bail Act provides that bail remains until it is revoked or the substantive proceedings for the offence conclude and there are no further substantive proceedings for the offence pending before a court.

However, s24(1) of the Act provides that an order made by either a magistrate or authorised justice under s19(a) or (b) or s21(1)(a) or (b) is, for the purposes of the Bail Act, taken to be a decision to dispense with bail for the offence.

When an order is made under s19 of the Act, the charge which gave rise to the proceedings is “deemed” to be dismissed if the defendant is not returned to court within a period of six months from the making of the order: s23. Therefore the orders under s19 have the potential to be both interlocutory and final.

Once a defendant is found not to be mentally ill or mentally disordered, a police officer, of or above the rank of sergeant, has the power to grant the defendant bail at the particular facility: s43(1B) Bail Act.

[30-200] Community treatment orders

A magistrate may under s20(1) make a community treatment order (CTO) as an option when dealing with a matter under s19(c).

A CTO must be in accordance with the Mental Health Act 2007 and all the necessary requirements under that Act must be met (save the holding of an inquiry) before such an order can be made: s20(1) and (2). The Mental Health Act allows for the assessment to be delayed if the person is suffering from a condition or illness, other than a mental illness or condition, if the person is not fit to be the subject of the assessment. An example is where the defendant has occasioned significant injuries in the course of the commission of an offence or arrest that require immediate treatment (for instance, setting a broken limb under anaesthetic).

[30-220] Admission for purpose other than mental health assessment

There can be circ*mstances where a defendant is admitted to a mental health facility for treatment for a purpose other than following an assessment ordered by a magistrate.

Section 33 Mental Health Act 2007 allows for the assessment to be delayed if the person is suffering from a condition or illness, other than a mental illness or condition, if the person is not fit to be the subject of the assessment. An example is where the defendant has occasioned significant injuries in the course of the commission of an offence or arrest that require immediate treatment (for instance, setting a broken limb under anaesthetic).

In this circ*mstance, while the defendant may be admitted for treatment, it is not following an assessment as to his mental health. That assessment can be delayed. If the defendant is found not to be mentally ill or mentally disordered following the assessment as ordered by the magistrate, the defendant can be legitimately returned to court, notwithstanding the admission for treatment for the other illness or condition.

[30-240] Section 25 — orders for defendants who are in custody

Section 25 applies to defendants who are in custody pending a committal for trial or awaiting summary disposal of their case. Under s25(2), if it appears to the magistrate that it may be appropriate to transfer the defendant to a mental health facility, an order may be made directing that the defendant be examined by two medical practitioners (including a psychiatrist) and, if appropriate, the relevant certificates be provided to the Secretary of the Ministry of Health under s86 and that the magistrate be notified of the action, if any, taken under s86.

In such circ*mstances, the reports prepared following any examination may form part of the material considered by the court when subsequently determining a treatment order.